Greenwade v. Decamp

Foote, C. This action was instituted upon an order of reference from the state land-office to the superior court of San Bernardino County, to annul a certificate of purchase to the defendant, and have an adjudication that the plaintiff was entitled to purchase of the state the land involved in the controversy.

The plaintiff had judgment, and the defendant appeals from that and an order denying a new trial. The main contention for a reversal of the judgment is, that the findings are not supported by the evidence.

From the evidence the court was warranted in believing that the plaintiff settled upon the land in dispute with the intention of making it his home, and of residing there, in the capacity of an actual settler, with his wife and family; that he was prevented from maintaining his constant residence there by the necessity of seeking relief for his sick wife at various points, but that he never ceased to consider the land his home and residence, exercised all the care he could over it, left some of his household goods in the house he had built, and nothing in his conduct intimated that he intended to abandon the settlement he had thus actually made.

The court found “that the said defendant was not, at the time of filing his application, and never has been, an actual settler upon or in occupation of any portion of said land.”

We cannot say that the evidence does not sustain the finding.

Another feature in the case, which it is claimed ought to have determined the controversy against the plaintiff is, that he did not, under a prior application he had made to purchase the land, comply with the provisions of section 3417 of the Political Code. That is, that he did not bring hrs action as a contestant within sixty days after the order of reference was made, on the first application. And this being so, and “ his rights in the premises and under the application” having ceased, it is [3]claimed that he was not entitled in this action, under his second application and order of reference, to introduce evidence of acts of actual settlement upon the land which had been performed by him prior to the 6th of September, 1885, the date when the sixty days expired within which he should have instituted his action under the first order of reference.

If the statute means to declare that all evidence of bona fide actual settlement, made prior to the date when a suit could be brought on an order of reference, shall go for naught, be it ever so clear and satisfactory, and is absolutely of no avail to a settler under any state of facts, unless within sixty days after the making of the order of reference he shall bring his action to determine a contest, perhaps the contention of the appellant is maintainable.