McNee v. Lynch
Before: Temple
Synopsis
Swamp-lands — Suitableness fob Cultivation—Rights of Actual Settlers — Case Affirmed. — Fulton v. Braman, ante, p. 454, affirmed to the point that state swamp-lands which are suitable for cultivation can be granted only to actual settlers in tracts not exceeding 320 acres.
Id.—Contest — Intervention by Actual Settler.—An actual settler upon swamp-lands, who shows that he has presented a proper application to purchase the same, may intervene in a contest referred from the state land-office to the superior court for adjudication, and it is not error to refuse to strike from his petition allegations showing the suitableness of the land for cultivation, and Ms actual settlement thereon and application to purchase the same, and that neither the plaintiff nor the defendant has ever resided upon the land.
Id.—Petition of Amicus CurM'—Discretion — Error without Prejudice. — Although the petition in intervention filed by an actual settler may not show Ms right to intervene in the contest, the court, having the duty cast upon it to inquire whether either party to the contest is entitled to purchase the land, and to adjudge accordingly, may, in its discretion, allow the intervener, as an amicus curios, to show that neither of the contestants was qualified to'purchase the land; and if the intervenor takes nothing by the judgment, and it does not appear that the party appealing was injured, the judgment will not be reversed because the court refused to strike out the petition and overruled a demurrer thereto.
Temple, C. On the merits, this case is on all fours with the case of Fulton v. Brannan, just decided by this court, ante, p. 454.
A further question is raised as to the right of the interveners to be heard as such. The bill of exceptions only shows the action of the court on a motion to strike out the petitions of intervention, or some portions of them.
There was no error in refusing to strike out the petition of Warner. Cutler’s petition shows no right to intervene. It amounted simply to a request to be permitted as amicus curise to show that neither party to the contest was qualified to purchase. The duty is cast upon the court in such cases to inquire whether either party is entitled to purchase, and if neither is so entitled, to adjudge accordingly. In such circumstances we think it would be no abuse of discretion to allow an amicus curise to produce evidence to enlighten the court.
The intervenors take nothing by the judgment, and as the bill of exceptions does not show what occurred at the trial, we do not know that either of them appeared or took any part whatever therein. So far as we can know, the plaintiff has not been injured.
Judgment should be affirmed.
Vanclief, C., and Foote, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.
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