Mosely v. Torrence
Before: Belcher
Synopsis
Appeal from a judgment of the Superior Court of Sonoma County.
Section 3495 of the' Political Code, under which the respective applications of the parties to purchase were made, provides in effect that any person desiring to purchase a portion of the five hundred thousand acres of land granted to the state for school purposes, or of a sixteenth or thirty-sixth section, or lands selected in lieu thereof, situated in any township which has been surveyed by the United States, must make an affidavit that he is a citizen of the United States, or has filed his intention to become such, a resident of the state, of lawful age; that he desires to purchase such lands (describing the same by legal subdivisions) under the provisions of part 3, title 8, of the Political Code; that there is no occupation of such lands adverse to any that he has; or if there is an adverse occupation, the affidavit must show that the township has been sectionized three months, and that the adverse occupant (giving his name) has been in such occupation more than sixty days since the plat was filed in the United States land-office. The section further provides that if the land is suitable for cultivation, the affidavit must state that fact, and that the applicant is an actual settler thereon. The further facts are stated in the opinion.
Belcher, C. C. This action was commenced to determine a contest between the parties about the right to purchase from the state a part of a sixteenth section of [320]land in Sonoma County. The case was tried and judgment entered that neither party was entitled to purchase the land, and thereupon both parties appealed from the judgment.
It appears from the findings that the defendant made application to purchase the land in question in June, 1879, and the plaintiff in August, 1882, and that at the time of making his application each party possessed the qualifications required by law to entitle him to purchase school lands from the state. The defendant’s application was in proper form, and at the time of making it, he had all the land inclosed, except a small piece on which plaintiff afterward made his settlement. He has ever since kept up his inclosure, and has cultivated portions of the land, and been in the actual occupation of all of it, except the small piece before mentioned. Prior to August, 1882, he had placed improvements on the land of the value of three thousand dollars, consisting of a good house and barn and a half mile of picket fence, and had planted a vineyard of eight acres. He has never personally resided on the land, but has occupied and managed it by servants and employees.
Before making his application, the plaintiff settled upon the small piece outside of the defendant’s inclosure, and has ever since been residing there with his family. In the affidavit on which his application was made, he stated, among other things, “that there is no occupation of said lands adverse to any he has.”
Upon these facts the court below found, as conclusions of law:—
“First—The said Torrence is not, and never has been, an actual settler on said land.
“Second—The said application of Mosely is defective, because he falsely states that there is no occupation of said lands adverse to him.
“Third—That neither of said parties were entitled to purchase said land from the state of California.”
[3211]
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