Murphy v. Sumner

Temple, J. This is an action to recover seventy-seven acres of land, being lots 1, 2, and 3, section 18, township 30 south, range 14 east, Mount Diablo base and meridian. Plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying his motion for a new trial.

The land was twice surveyed under the direction of the United States surveyor-general for California, and each survey was duly approved by that officer, and the plat placed on file in the United States land-office.

[318]The first survey was made and approved in 1868, and it was afterward found that the lines actually run on the ground did not accord with other surveys, and were incorrect. A second was therefore ordered, which was made and approved in 1880, and the plat thereof duly filed in the United States land-office in lieu of the first erroneous survey.

The plaintiff obtained from the state a certificate of purchase as lieu land, dated January 18, 1870, ten years before the new and correct survey was made. On the trial, plaintiff introduced his certificate of purchase, and proved the first survey and the approval of it, and that the plat was filed in the United States land-office. He also showed that, according to the lines actually run on the ground, the defendant’s house is upon his land.

The defendant claims no part of section 18, but does claim the northwest quarter of section 17, in the same township, under a homestead entry, made after and according to the corrected survey and plat of 1880. On the trial, the defendant proved the second survey and his homestead entry, and that according to that survey he was not in possession of any portion of section 18.

The land thus in controversy consists of a strip about two hundred yards wide, on which are the defendant’s improvements. Many exceptions were taken at the trial, which, under the view we take of the case, it is not necessary to notice.

It is not claimed that the defendant has intruded upon the actual possession of the plaintiff, or that plaintiff ever was in actual possession of the land. He relies upon strict title. It may be admitted that upon proof that the land had been surveyed and a certificate of purchase duly issued to him, he made a prima facie case.

The defendant then proved the corrected survey and a homestead entry, and that according to this last survey he is in possession only of the land included within his homestead entry. It is not claimed that the lands had