Foss v. Hinkell

Thornton, J. — Ejectment. Judgment for plaintiffs, and appeal by defendant from judgment and order denying the motion for a new trial.

The plaintiffs claimed title under a patent from the United States of the land in suit to the Southern Pacific Railroad Company, dated the 4th of April, 1879, and a deed of the company, of date of the 20th of June, 1887, conveying this land to them.

The defendant is a duly qualified pre-emptor, having entered into and held possession of the land in suit since the 22d of April, 1886, and ever since that day has been a bona fide pre-emption settler thereon. On the tenth day of June, 1887, he did tender and deposit his declaratory statement, in due form, for the land, in the proper United States land-office, and tendered therewith all legal fees for filing the same. The register and receiver refused to file this statement, and on the same day defendant appealed from this refusal to the commissioner of the general land-office, at Washington, where the appeal is now pending.

The defendant pleaded that the land in controversy was never granted to the plaintiffs’ grantor, the Southern Pacific Railroad Company, because at the date of the location of the route of the Southern Pacific railroad, or about April 3, 1871, this land was within the exterior limits of the rancho San José, a valid Spanish or Mexi[161]can grant, and was thereby reserved from appropriation by the railroad company.

■ By reason of the foregoing facts pleaded, defendant contends that the patent to the railroad company is void.

If the land in suit here was, when the grant to the railroad company, under the acts of Congress of July 27, 1866, and March 3, 1871, took effect, within the limits of the rancho San José, and the grant of this rancho was then sub judice, the patent under which plaintiffs herein claim was void from the beginning.

This conclusion is sustained by the judgments of this court in Carr v. Quigley, 57 Cal. 395, and McLaughlin v. Heid, 63 Cal. 210.

The ease first cited was decided January, 1881, and the last-cited case on February, 1883. The supreme court of the United States has recently (on the 21st of November, 1887), decided the same way in Doolan v. Carr, 125 U. S. 618.