Daniels v. Gualala Mill Co.

Foote, C. This action is in ejectment to recover a strip of land twenty-five feet in width, through the center of which the defendant's railroad runs lengthwise.

The court below, sitting without a jury, found that the cause of action was barred by the statute of limitations. From the judgment and an order denying a new trial the plaintiff appeals.

From the evidence it appears that the plaintiff claims title under a patent issued from the United States government in 1883. If this patent was good and the plaintiff had title to the land only through it, then the defendant could not prevail in the action. It becomes then a very material question in this case in what way and at what time the plaintiff did actually obtain a paramount title to the land.

It is in evidence by a certain state patent, to the introduction of which no objection was made upon the trial, that the land was patented to one A. J. Delatour, May 13, 1878; that it was listed as an indemnity school selection, and selected and certified as such to the state of California in lieu of a portipn of section 36, township 10 north, range 33 west, San Bernardino meridian, approved August 10, 1870, by the Secretary of the Interior, and the certified copy of the list was read in evidence without objection. Certain deeds were also put in evidence without objection, showing that the plaintiff had this land conveyed to him by mesne conveyances from Delatour, and that the deed to plaintiff directly was dated the twenty-fifth day of April, 1871.

That afterward, in 1882, the United States commissioner of the land-office undertook to cancel the selection by the state, on the ground that it had not lost the school land for which it had obtained the indemnity land patented by it to the plaintiff, and it was shown that in 1883, after this order of cancellation, the plaintiff had obtained a patent for the land from the general government.

[302]The defendant then introduced a patent to certain parties for a Mexican land grant, dated the first day of March, 1870, which shows with the map attached that section 36, township 10 north, range 36 west, San Bernardino meridian, was included within it, and that the final survey of the rancho for which the patent issued had been approved by the commissioner of the general land-office March 1, 1870, its introduction in evidence being unobjected to.