Bascomb v. Davis

Sharpstein, J.: This action is brought to obtain a judgment that the defendant convey to the plaintiff a certain tract of land containing 29170°0 [153]acres, which is known as lot No. 3 of section 11, T. 7, S. R, 1 W.

On the 15th of December, 1868, the plaintiff filed his declaratory pre-emption statement in the United States Land Office at San Francisco, in which he set forth, that, on the 24th day of May, 1850, he settled upon and improved a quarter-section of land which embraced said lot 3, and declared his intention to claim said quarter-section as a pre-emptive right. He has obtained a patent of all the land so claimed by him except said lot 3, which the defendant has obtained a patent of, after a contest which was finally terminated by a decision of the Secretary of the Interior, that the defendant was- entitled to enter said lot 3, under the pi ovisions of § 7 of the Act of Congress of July 23rd, 1866, entitled “ An Act to quiet land titles in California.” The particular clause upon which the secretary based his decision reads as follows: “That where persons, in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, ® * * and have used, improved and continued in die actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts as required in this section.”

It is urged, on behalf of the plaintiff, that the decision of the secretary is contrary to law, and therefore not final in a sense which forbids a rcviewal of it by the Court.

The first point upon which the counsel of plaintiff seems to rely is, that the defendant was not a purchaser under a grant within the meaning of the act of Congress.

In 1858, the defendant purchased of one Juan C. Galindo, Jr., a tract of about one hundred acres, which embraced said lot 3. The latter acquired it from Juan C. Galindo, Sr., who obtained a cession of it in 1846, from “Friar Jose Ma. del Refugia Suarez del Real, Minister of the Mission of Santa Clara and San Jose, Guardian Administrator of their Churches and Neophytes.” The Court below found that Juan C. Galindo, Sr., by petition to the Board of land commissioners, appointed by the United