Martin v. Durand

Ross, J. Upon thequestion of title the inquiry to be made is: Was a State selection made in lieu of a sixteenth or thirty-sixth section, and which had been certified over to the State prior to the passage of the Act of Congress of March 1, 1877, commonly known as the Booth Act, confirmed by that act, when the land in lieu of which the selection was made was, at the time of the selection, included within the final survey of a Mexican grant, and when the land selected was at the same time included within the claimed limits of a Mexican grant, although finally excluded therefrom ? We answer yes, by virtue of the second section of the Act of March 1, 1877.

As is well known, the sixteenth and thirty-sixth sections of land in each township in California were granted to the State for school purposes by the Act of Congress of March 2, 1853. (10 U. S. Stats. 244.) By the seventh section of that act indemnity was provided for such sections, or parts thereof, as might be lost to the State by reason of settlement at the time of survey, or because of reservation for public uses, or of being taken by private claims. Experience showed that many of the sections granted by the Act of 1853, were situated within the claimed limits of private grants made by the Mexican government. From the nature and number of those grants and of the proceedings required for their adjudication and the final determina[41]tian of their boundaries, proceedings to that end, in most cases, were slow. The State proceeded to make many indemnity selections before it was definitely known whether the lands in lieu of which the selections were made had in fact been lost to the State. These selections were invalid, some for one reason, some for another. Nevertheless, through mistake or inadvertence, they were certified to the State by the land department of the general government. Of course, disputes in regard to the title to such lands were natural and frequent. To solve the difficulty Congress interposed and passed the Act of March 1, 1877. It is entitled “An act relating to indemnity school selections in the State of California,” and confirms by its first section to the State, the title to the lands certified to it, known as school selections, which were selected in lieu of sixteenth and thirty-sixth sections lying within Mexican grants, of which grants the final survey had not been made at the date of such selection by the State.

This section, it is apparent, does not cover the case under consideration. But Congress further provided, in the second section of the act, “that where indemnity school selections have been made and certified to said State, and said selections shall fail by reason of the land in lieu of which they were taken not being included within such final survey of a Mexican grant, or are otherwise defective or invalid, the same are hereby confirmed and the sixteenth or thirty-sixth section in lieu of which the ' selection Avas made shall, upon being excluded from such final survey, be disposed of as other public lands of the United States; provided, that if there be no such sixteenth or thirty-sixth section, and if the land certified therefor shall be held by an innocent purchaser for a valuable consideration, such purchaser shall be alloAved to prove such facts before the proper land office, and shall be allowed to purchase the same at one dollar and twenty-five cents per acre, not to exceed three hundred and tAventy acres for any one person; provided, that if such person shall neglect or refuse, after knowledge of such facts, to furnish such proof and make payment for such land, it shall be subject to the general land laAvs of the United States. (19 U. S. Stats. 268.)