McIntyre v. Sherwood

Hayne, C. This was an action to determine a contest over the right to purchase from the state certain swamp and overflowed land. The trial court gave judgment for the plaintiff, but subsequently made an order granting a new trial, from which order the plaintiff appeals.

The plaintiff’s proceedings in the land-office were in proper form. And the evidence showed without conflict that he took possession of the land “ fifteen or twenty ” years ago, when “ it was mainly a tule-swamp on which the water stood a great part of the year that he dug ditches to drain the land, fenced it, and has ever since been in possession, and has cultivated most of it, but has never resided on it. He resided in a house upon an [140]adjoining tract about a quarter of a mile from the land in controversy,— the whole being “ inclosed in a general inclosure embracing about one hundred acres, and constituting one farm.”

Upon this evidence the court instructed the jury that it was not necessary that the plaintiff should reside upon the tract in controversy; and under this instruction the jury found that the plaintiff was a “settler” upon the land at the time the defendant’s application was made. The court filed findings of its own, repeating the fact found by the jury, and expressly finding that the defendant, “in his affidavit stated, among other matters, that at the time of making his said affidavit, there were no settlers on said land; that such statement was and is false and untrue.” The court further found that the affidavit of the defendant “contained no allegation or statement showing that said land had been segregated more than six months by authority of the United States.”

Upon these findings there can be no question that the judgment against the defendant was right. For the statute requires that the affidavit of the applicant shall state either that there are no settlers upon the land at the time of the application, or if there are, that more than six months has ela¡3sed since segregation by authority of the United States. (Pol. Code, sec. 3443.) And it is settled that if a material statement in an affidavit for the purchase of public land be false, the applicant acquires no right. (McKenzie v. Brandon, 71 Cal. 211; Plummer v. Woodruff, 72 Cal. 31; Harbin v. Burghart, 76 Cal. 119; Taylor v. Weston, 77 Cal. 535.)

It appears, however, that the court granted the new trial upon the ground that the evidence showed that the plaintiff was not a “settler” within the meaning of the provisions of the Political .Code in relation to the matter, and that therefore the affidavit of the defendant was not false. And the court arrived at this last conclusion