Smer v. Duggan

Ross, J.: In 1842, the Mexican Government granted to one Francisco Estrada a rancho known as the “ Pastoría de las Borregas Eancho,” to the extent of two square leagues, to be located within certain exterior boundaries of larger dimensions. These [259]exterior boundaries included the premises in controversy here. Notwithstanding that fact, the plaintiff, in October, 1850, settled upon the tract in dispute, with the intention of pre-empting it under the laws of the United States, he having at the time, and ever since, the personal qualifications necessary to enable him to pre-empt public land of the Government.

In February, 1862, the parties holding the Mexican grant, but who are not named in the record before us, recovered judgment in ejectment against the plaintiff, and under it the latter was evicted from the said premises, and never afterward reentered. In 1863, the plaintiff moved upon what was after-wards ascertained by the public surveys of the United States to be the north-west quarter of the north-west quarter of section 1, township 7 south, range 2, west of the Mt. Diablo meridian, where he had a house and out-buildings. He also occupied about twenty acres of the north-east quarter of the said north-west quarter, making in all about sixty acres of what turned out to be, when the public surveys were made as herein after stated, the north half of the north half of section 1 aforesaid. Upon these sixty acres he has ever since resided. The other portion of the said north half, which included the premises in controversy, was then, to wit, in 1863, in the possession of one Daniel Lyons and others, to whom Estrada, the Mexican grantee, had sold it, with other land embraced within the boundaries of the grant. Lyons died on the 9th of July, 1866, leaving the defendants his heirs.

The grant was finally confirmed, and in 1865 the final survey of the tract confirmed was made and approved, which excluded from its boundaries the premises in question. The land was afterwards surveyed by the authorities of the United States, the. plat duly filed, and in July, 1866, the plaintiff filed a declaratory statement in the proper land office, claiming to pre-empt the whole of the north half of the north half of said section 1, alleging his settlement thereon in October, 1856; and in September following made proof of his claim before the register and receiver, and was by them allowed to enter the land. He then paid the purchase-money, and received a certificate. In the meantime, the Act of Congress of July 23rd, 1866, was passed, and under it the defendants, as heirs of Lyons, claimed the right to purchase the premises in question.