People ex rel. Hastings v. Jackson

Sharpstein, J.: Thomas, to whose interest the relator has succeeded, attempted in June, 1853, to locate a school-land warrant upon the land in controversy. That attempt was made in the manner prescribed by the Legislature, but was ineffectual because the land was then unsurveyed, and not subject to selection. (Hastings v. Jackson, 46 Cal. 234.) On the first of the succeeding October, the land was surveyed by the Government of the United States. On the twenty-fourth of December, 1853, “said location was presented to the Register of the United States Land Office of the district wherein the same was located, and was by him duly accepted and approved.” This is characterized in Hastings v. Jackson, supra, as an unauthorized proceeding, which no law, State or Federal, justified. In Hastings v. Devlin, 40 Cal. 358, the Court said: “We know of no statute of California or of the United States authorizing the performance of the acts set forth in the certificate of Gift, Register of the Land Office at Benicia, of December 24, 1853.” It was accordingly held, in Hastings v. Jackson, supra, that the plaintiff in that case, who is the relator in this proceeding, bore no such relations to the prop[554]erty, which was the same in that case as in this, as would entitle him to call in question the title of the defendants, who were the same in that case as in this.

In February, 1857, the defendant Jackson located two school-land warrants upon the land and obtained a patent for it from the State in March, 1863. The land was not listed by the United States to this State until February, 1870. In September, 1871, the United States Land Commissioner canceled Jackson’s location and sent back to him the warrants which he had located on the land. This was done after the land had been listed to the State, and the Commissioner had no power over the subject after that. (Hastings v. Jackson, supra) It does not appear that anything has transpired since the commencement of the action of Hastings v. Jackson, supra, to change the relations which then existed between those parties, or to materially affect their rights in the premises. The grounds upon which the plaintiff in that case claimed relief are those upon Avhich the plaintiff in this case claims relief, and the Court, in that case, passed upon all the questions involved in this, except that it declined to consider whether the State could avoid its conveyance to Jackson because the land was not listed to the State when he obtained the patent for it, or because no notice of his application to locate his warrants upon the land was published as required by law, for the reason that the plaintiff was not in a position to raise those questions.