Geer v. Sibley

Foote, C. This was a contest in the superior court of Tulare County as to. the respective rights of the plaintiff and defendant to. purchase a section of swampt land of the state. Judgment passed for the plaintiff, from which the defendant appeals.

The point made for-the-reversal of the judgment is, that the findings of fact do not support it.

The only ground relied upon in the complaint to defeat the defendant’s right to- purchase the land is, that his affidavit filed with the surveyor-general was false, in that it asserted that at the time of making it the defendant knew “ the land applied for and. the exterior bounds thereof,” when he did not so know.

The court found, among other facts necessary to enable the defendant to. recover in, finding 4/that “at the time of making and filing said affidavit and application defendant did not know of any valid claim to said land other than his own; he knew of his own knowledge that there were no settlers thereon, and he did not, and does not now, own swamp and overflowed land which, together with that sought to be purchased by him as aforesaid, exceeded 640 acres.”' But found, in the fifth finding, “that, immediately prior to- the making and filing of his affidavit and application, the defendant went to the section of land in controversy in company with John Gilcrest, a practical surveyor, whom the defendant employed to survey and point out to. him the said section;, they found the northeast corner of the section, which was marked by the government stake standing at that point; the surveyor setup his instrument at this point,and turning it south, projected the east line of said section,and at his request the defendant looked through the instrument along said line, the surveyor- at the same time informing him that he was looking along the east line of said, sec[3]tion, which line extended one mile from that point; the surveyor then turned his instrument west, projecting the north line of the section; the defendant looked through the instrument along this line, being at the same time informed by the surveyor that said north line extended one mile on that course; they then followed along said line to the quarter-section corner of said section in said line, at which point they found the government stake Seating in the water, but confined by tules; the surveyor set his instrument at this point, sighting west on said north line, and the defendant looked through the instrument, being at the same time informed by the surveyor that the northwest corner of said section was located one half-mile west of said quarter-section corner in said line; they then went back and around to the southeast of section 1 in said township, and from there ran west to the southeast corner of the section, which they found marked by the government stake standing in the water; the surveyor set his instrument at this corner, looking west, and projecting the south line of the section; the defendant looked through the instrument along this line, being at the same time informed by the surveyor that lie was looking along the south line of said section, and that the southwest corner thereof was located at a point in said line one mile west of said southeast corner, in the direction pointed by the instrument; at this time the section of land in controversy, except about ten or fifteen acres at the northwest corner thereof, was covered with the water of Tulare Lake; the defendant could seethe entire surface of the water covering said section, and for two or three miles in either direction. From the foregoing facts the court finds that the defendant did not, at the time of making and filing his affidavit and application, know the land he applied to purchase, and in controversy herein, nor the exterior bounds thereof.”