Roberts v. Columbet

Sharpstein, J. Ejectment. The plaintiff claims title to the demanded premises under a State patent issued to him September 17, 1875, upon an application made by him December 1, 1874.

The defendant claims under a State five hundred thousand acre land warrant location, made in October, 1853, under an act of the State legislature, approved May 3, 1852, providing for ,the disposal of the five hundred thousand acres of land donated to the State by the United States.

The land was not surveyed by the United States until 1866, and in 1867 the proper agent of the State selected and located the demanded premises (and other lands), in part satisfaction of the five hundred thousand acre grant made to the State by tho act of Congress, which land was listed to the State by the commissioner of the general land office, with the approval of the Secretary of the Interior, in 1870.

If the land in controversy had been surveyed by the United [23]States prior to the location of the school land warrant under which the defendant claims, it does not seem to us that his title could be seriously questioned. But it is claimed on behalf of respondent that the purchasers of school land warrants from the State were only authorized “to locate the same upon any vacant and unappropriated lands belonging to the United States within the State of California subject to location ,” and that unsurveyed lands of the United States were not “ subject to location.”

That the act of Congress granting five hundred thousand acres of land to the State did not authorize it to select any land which had not been surveyed by authority of the United States is not controverted. And yet the act of the legislature of May 3, 1852, did provide for the location of school land warrants upon government lands before the same had been surveyed by the United States, and for the issuance of patents, in such manner and form as the legislature might thereafter direct, to those who so located any of said warrants.

As against the United States the locators of school land warrants upon surveyed or unsurveyed lands acquired no rights before the land upon which they located their warrants was listed to the State. The United States dealt with the State only. So that the only question in this case is what, if any, right the appellant acquired to the land in controversy as against the State and those who claim under it by virtue of a location made subsequently to that under which he claims.