Prentice v. Miller

Gibson, C. This was a contest referred to the superior court of Monterey County by the surveyor-general and ex officio register of the state land-office, to determine the respective rights of the parties to purchase certain school lands. Judgment passed for plaintiff, from which, and an order denying a new trial, defendant appeals. The pleadings are conceded to be in proper form and sufficient.

The appellant urges, in support of his appeal, that there is no evidence to sustain the fifth, sixth, and seventh findings, wherein the court, in effect, found that before plaintiff filed his application to purchase the land [572]in dispute, it had been surveyed by the United States surveyor-general for California, who had filed an approved plat of such survey in the United States land-office at San Francisco, the office for the district within which the land lies; and that the register of the United States land-office had accepted the land for and listed and certified it over to the state, in part satisfaction of the grant by the United States to this state of the sixteenth and thirty-sixth sections of each township, for school purposes.

An application to purchase lands of the character in question cannot be made until after the township in which the same may be situated has been surveyed by the United States. (Pol. Code, sec. 3495; Medley v. Robertson, 55 Cal. 396.) This made it necessary for each contestant to allege and prove that the land applied for was surveyed by the United States at the time they severally sought to purchase it. (Rogers v. Shannon, 52 Cal. 99; Finney v. Berger, 50 Cal. 248.) The respective allegations of the parties in their pleadings in this regard are sufficient to meet this requirement.

In the certified copy of the order of reference of the surveyor-general, made pursuant to sections 3414 and 3415 of the Political Code, which was introduced in evidence by plaintiff without objection, is a recital which is the only evidence tending to support the above findings. It reads as follows: “On March 24, 1869, H. G. Rollins, register of the United States land-office for the San Francisco district, certified that there was no valid claim adverse to that of the state of California for all the above-described land.” While the recital, if objected to, would doubtless have been excluded, because it was not a matter required to be placed in the order of reference, and of which the certified statement of the register of the United States land-office would have been the best evidence, still it comes within the rule that inadmissible evidence, if admitted without objection, is sufficient proof of