Tubbs v. Wilhoit

Thornton, J. —This is an action of ejectment.

The plaintiff’s title is founded on a patent of the United States, issued on homestead entry, commuted to a cash entry, which entry was made on the 8th of May, 1873. On this last-named day whatever right the plaintiff had attached.

The defendant’s title rests on a patent of the state-of California, issued to one Joseph Kile on the fifth day of August, 1865, for the land in controversy purchased by said Kile from the state, on an application to purchase made to the proper state authorities in the month of August, 1864.

The plaintiff claims that the land is and was dry land on the 28th of September, 1850, the date of the passage of the swamp land act, while defendants (who are the executors of Kile) claim that it was swamp and overflowed land at the date just above mentioned, and that [63]it was conclusively determined to be such before any right of plaintiff attached.

It appears from the findings that in April, 1864, a plat of the survey of the township in which the land in controversy is situated "was approved by the United States surveyor-general fov California. On this approved township plat, the land in suit was represented to be. swamp and overflowed.

On the 23d of July, 1866, an act óf Congress, entitled “An act to quiet land titles in California,” was passed. The fourth section of that act provides, among other things, as follows: “That in all cases where township surveys have been, or shall hereafter be, made under the authority of the United States, and the plats thereof approved, it shall be the duty of the commissioner of the general land-oflice to certify over to the state of California, as swamp and overflowed, all the lands represented as such upon such approved plats, within one year from the passage of this act, or within one year from the return and approval of such township plats.”

It must be considered as settled law that the first section of the swamp-land act is a grant in prsesenti to each state of the swamp and overflowed lands within its limits. “ The words of the first section of the act,” say the Supreme Court of the United States, in Wright v. Roseberry, 121 U. S. 488, by Field, J., “ ‘ shall be and are hereby granted/ import an immediate transfer of interest, not a promise of transfer in the future.” The provision made for a patent in the second section is for the purpose of furnishing to the grantee documentary evidence that the land was swamp and overflowed, and a further assurance of title. (See Owens v. Jackson, 9 Cal. 322; Summers v. Dickenson, 9 Cal. 554; Kernan v. Griffith, 27 Cal. 87; Sacramento Valley Rec. Co. v. Cook, 61 Cal. 342; Lux v. Haggin, 69 Cal. 255; French v. Fyan, 93 U. S. 169; Wright v. Roseberry, 121 U. S. 488, and cases cited.)