Gavitt v. Mohr

McKee, J. — This action was brought to have determined which of two applicants had the right to purchase from the state a tract of agricultural land situate in Los Angeles County, and known as the north half of section 36, township 6 north, range 12 west, San Bernardino meridian lines.

It is conceded that the thirty-sixth section, of which jihe land involved in the contest is part, belonged to the state; that prior to April, 1872, the township was surveyed and sectionized by the United States, and that the plat of survey was approved and filed in the local United States land-office of the district in which the land is situate.

The first application to purchase was made by defendant. On the 6th of June, 1884, he caused to be filed his affidavit in due form, made under the provisions of title 8, part 3, of the Political Code (Pol. Code, sec. 3495), paying all the fees and charges of the application; and at the time of making and filing his application, he had [508]the qualifications prescribed by law for becoming a purchaser from the state.

The application of plaintiff was not made and filed until sixty days after defendant’s application had been filed. On the 11th of August, 1884, he made his-affidavit, in due form, under the provisions of the same law, and filed it with the surveyor-general of the state, paying the costs and charges, and he also was, at the time of his application, possessed of the qualifications requisite to purchase.

The court decided in favor of plaintiff, finding “that, prior to any settlement upon the land by defendant, the plaintiff, on the 30th of July, 1884, entered and settled upon the land; that he has since continuously resided upon it; that he was an actual settler upon it on the 11th of August, 1884, when he made and filed his application to purchase it; and that the defendant was not an actual settler upon the land at the time of filing his application, nor an occupant of it at any time prior to the 5th of August.”

Section 3 of article 17 of the constitution declares: “Lands belonging to this state, which are suitable for cultivation, shall be granted only to actual settlers, and in quantities not exceeding three hundred and twenty acres to each settler, under such conditions as shall be prescribed by law.” And section 3495 of the Political Code, after prescribing the conditions and terms for purchasing cultivable land from the state, provides that an applicant, to purchase, must make and file an affidavit in the office of the surveyor-general of the state, setting forth the qualifications of the applicant, the character and condition of the land which he wants to purchase, whether the land is or is not suitable for cultivation, and if it is, that the applicant is an actual settler thereon. Under the law, therefore, a claimant, to purchase from the state a tract of its cultivable land, must be, at the time of filing his application, an actual settler.