Medley v. Robertson

Myrick, J.: This is an action to determine a contest arising in the Surveyor-General’s office regarding the right of the parties to purchase the north half of a 36th section. The Court below filed its findings, upon which judgment was rendered for defendant. The following is a statement of the facts taken from the findings of the Court:

“ The section was surveyed by a Deputy United States .Surveyor, acting by authority, and all the lines thereof run and marked, and the corners established in the field, prior to September 24th, 1873; the field-notes of said survey were not returned to or filed in the office of the United States Surveyor-General for California, until after September 26th, 1873; the said survey and a proper plat were approved by the United States Surveyor-General for California, March 21st, 1874, and filed April 29th, 1874, in the United States Land Office. On the 26th of September, 1873, (after the survey in the field, but before the approval) the defendant, Robertson, presented and filed with the Surveyor-General of this State his affidavit and application to purchase of this State the said land, consisting of 320 acres; and August 4th, 1874, the application of Robertson was approved by the Surveyor-General of this State, a copy of which approval was forwarded to Robertson, and he made the first payment to the County Treasurer, and on the 3rd of October, 1874, the Register of the State Land Office issued to said Robertson a certificate of purchase. On the 18th of February, 1876, plaintiff made his affidavit and application to purchase the land of the State, which were, April 1st, 1876, presented to and filed by the Surveyor-General of the State, which application said Surveyor-General refused to approve, and this controversy thence arose.”

It thus appears that after the survey was actually made, but [398]before the survey and field-notes were returned to, filed with, and approved by the United States Surveyor-General, defendant made his application; and plaintiff insists that the title to the land did not pass 'to the State until the approval, and that, therefore, defendant’s application is void, notwithstanding the fact that his application was subsequently approved, and a certificate of purchase issued to him.

It has been more than once held by this Court that the State cannot convey title to the 16th and 36th sections, until after it receives the title, and that it does not receive the title to any specific land, until the plat of the survey has been approved by the United States Surveyor-General. (Terry v. Megerle, 24 Cal. 610; Middleton v. Low, 30 id. 596.)