McKenzie v. Brandon

Belcher, C. C. In June, 1876, the defendant Brandon made application to purchase from the state the west half of a certain thirty-sixth section of land in El Dorado County. At that time he owned the southeast quarter of the section, and had that quarter and eighteen acres of the southwest quarter inclosed by a fence which he has since kept up. He has never resided on the west half of the section, but has usually, in connection with the cultivation of the southeast quarter, cultivated about seven acres of the southwest quarter lying within his inclosure, and has used the balance of the half-section to pasture his stock.

While the eighteen acres were so inclosed and a portion of it cultivated by the defendant, the plaintiff, in February, 1884, made application to purchase from the state the same half-section. In the affidavit on which his application was based he stated, among other things, “that there is no occupation of said lands adverse to any he has.” The contest between the parties as to which had' the right to purchase the land was referred by the surveyor-general to the court below for determination, and after a trial of the case, judgment was entered that plaintiff was and the defendant was not entitled to purchase it.

The defendant moved for a new trial, and his motion was granted upon the ground “that the affidavit filed by the plaintiff McKenzie in the surveyor-general’s office failed to show the adverse occupation of the defendant Brandon of a portion of the land.”

From the order granting a new trial this appeal is prosecuted, and the only question to be determined is, What constitutes an adverse, occupation within the meaning of the law as it stood when the affidavit was filed?

[211]It is argued for the appellant that to constitute an adverse occupation, within the meaning of section 3495 of the Political Code, the adverse occupant must be an actual settler on the land; or in other words, must himself be in such a position as would entitle him to purchase from the state.

It is well settled that when one seeks to purchase land from the state he must state in his affidavit, and state truly, all the facts required to be stated therein. (Woods v. Sawtelle, 46 Cal. 389; McCoy v. Byrd, 65 Cal. 92; Millidge v. Hyde, 67 Cal. 5; Plummer v. Woodruff, opinion filed February 16, 1887; 72 Cal.) And when the case is brought into court for determination, each party must set forth in his pleadings and show by his proofs that he has strictly complied with the law. (Gilson v. Robinson, 68 Cal. 539.)