Wren v. Mangan
Synopsis
Swamp and Overflowed Land — United States Survey — Premature Application — Void Certificate of Purchase. —Since the year 1874 no application to purchase swamp-land has been authorized until after the land has been segregated as such by authority of the United States; and a certificate of purchase issued upon an application made before the survey and segregation of such land by the United States is void.
Id. — Contest of Right to Purchase — Rights of Settler. — A settler upon land returned as swamp by the United States survey, who has applied for the land, and has proved that each legal subdivision thereof is snitable for cultivation, is entitled to judgment in his favor upon a contest of the right to purchase the land as against the holder of a certificate of purchase issued upon an application made prior to the survey to one who had never been an actual settler upon the land.
The Court. When this cause was pending in Department an opinion was prepared by Commissioner Belcher.[275]After hearing in Bank, and due consideration of the case, we are satisfied with that opinion, and with the conclusion therein reached. The opinion is as follows:—
“ This action was brought to determine a contest as to the right to purchase from the state a certain half-section of swamp and overflowed land situate in Tulare County. The trial court gave judgment for the plaintiff, from which, and from an order denying him a new trial, the defendant Hyde appeals.
“ The material facts of the case are as follows: On the second day of July, 1879, the defendant Mangan filed in the state surveyor-general’s office his application to purchase a section of land under the law providing for the sale of swamp and overflowed lands. At that time the township in which the section applied for was situated had not been surveyed, and the section had not been segregated as swamp and overflowed land by authority of the United States. In 1880 the township was surveyed in the field, and on the ninth day of February, 1881, the township plat was approved by the United States surveyor-general, and filed in his office.
“ On this plat the section was marked and designated as swamp and overflowed. At the time of filing his application, Mangan was qualified to purchase swamp-land from the state, and the application was verified, and stated all the facts required by law for that purpose. It also had attached to it a certificate of the pounty surveyor that he had surveyed the section, and a certificate of the register of the United States land-office of the district in which the land was situated that there was no pre-emption, homestead, or other filing of record in his office on the said section. The application remained unacted upon until the twenty-second day of September, 1883, when it was approved by the surveyor-general, and thereafter, on the 2,4th of November following, a certificate of purchase for the land was issued to Mangan. Afterwards, by mesne conveyances and assignments, de[276]fendant Hyde became the successor in interest of Mangan in the land and certificate.
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