Cunningham v. Shanklin

Morrison, C. J.: This case is brought before us on an agreed statement of facts, from which it appears that contests having arisen in the office of the Surveyor General, between the plaintiff and other parties, respecting their rights to purchase certain lands belonging to the State, the same were referred to the District Court of the Twentieth Judicial District for determination, under Sections 3414, 3415, and 3416 of the Political Code. In pursuance of the order of reference, the plaintiff commenced actions in said District Court for the purpose of having such conflicting claims determined, and such proceedings were had in them, that, on the first day of August, 1874, the Court entered its judgment in one of the cases, whereby it was “ ordered, adjudged, and decreed, that the said James F. Cunningham is entitled to purchase said land, and to have his application, described in his complaint for the purchase of said land, approved. * * * That his location thereof be approved,” and directing the Surveyor General of said State, “upon the filing in his office of a copy of said decree, duly certified, to approve the said application and location of said Cunningham, and to issue to him a certificate [124]thereof,” etc. On the fifteenth day of February, 1875, judgments were entered in the other cases to the same effect. On the fourteenth day of August, 1878, one J. S. Manley filed an application for the same land, and on the twenty-sixth day of August, 1881, he made a demand that the contest between Cunningham and himself be referred to the proper Court for trial. On the thirty-first day of August, 1881, the Surveyor General and ex officio Register of the State Land Office made an order referring said contest to the Superior Court of Santa Cruz county for trial. These are the substantial and material facts presented by the agreed statement, and the following are the questions which are submitted to us for decision:

1. "Whether the case of Cunningham v. Crowley, above mentioned, is a proceeding in rem or in the nature of a proceeding in rem, giving the said Cunningham a right to purchase said land absolutely ?

2. Are the State and the officers thereof estopped from selling the same land to an applicant who filed his claim pending the said action or subsequent thereto ?

3. Was the Surveyor General authorized by law to receive the application of said Manley et al., and did the reception and filing of said application create such a contest in the-office of the Surveyor General or Register of the State Land Office, as would authorize said officers to refer the parties to Court to litigate their respective claims, before Cunningham would be entitled to his patent under Section 1519 of the Political Code ?