Buchanan v. Nagle

McFarland, J. This is an action to determine a contest arising in the state land-office as to the right to purchase from the state a certain section of swamp and overflowed land in Tulare County. Judgment went for plaintiff, and defendant appeals from the judgment, and from an order denying a new trial.

The court below found, among other things, that the land in controversy was not segregated by the United States to the state until October 14, 1884; that defendant Nagle’s application was made on December 14,1883, and filed in the state land-office on April 1, 1884,— all before the segregation; and that as the land was not subject to application before segregation, no rights attached by reason of the application, nor by reason of the subsequent approval and certificate of purchase made after the segregation, but based on said application.

Counsel for appellant argue very fully and ably that there is nothing to prevent the filing of an application to purchase swamp land before segregation; but the contrary was held in Garfield v. Wilson, 74 Cal. 175, and in the recent case of Wren v. Mangan, ante, p. 274, decided since the present case was submitted. Counsel attack the correctness of the conclusion stated in Garfield v. Wilson; but we are satisfied with that conclusion, and with its approval in Wren v. Mangan. We do not see [593]that the question involved is at all changed by the adoption of the theory that the act of September 28, 1850, was a grant in prsesenti to the state of the swamp lands within her territory; for that being so, the state has still the power to provide how they may pass, into private ownership. And she has made no provision for an application to purchase before segregation. Indeed, the provisions of the code on the subject clearly contemplate that no steps towards a purchase are to be taken, and no advantage or preference to be gained by an application prior to such segregation. It is difficult to see how the requirements of the code with respect to applications to purchase could ordinarily be complied with at all before the approval of the United States survey, which constitutes the segregation. For instance, section 3443 of the Political Code, which establishes the method of making an application to purchase swamp land, provides for an affidavit of the applicant, in which, among other things, he must describe the land which he desires to purchase, and must swear that “ he knows the land applied for, and the exterior boundaries thereof.” But can an applicant swear to such knowledge, or have it, prior to the survey and segregation by the United States?