Jacobs v. Walker

Belcher, C. —This is an action to determine a contest between the plaintiff and defendant as to which of them is entitled to purchase certain school-lands. The court below gave judgment for the defendant, and the plaintiff appeals therefrom on the judgment roll.

The court found the facts of the case to be, in substance, as follows: —

On the twenty-third day of February, 1883, the defendant filed in the office of the state surveyor-general his affidavit and application to purchase the northeast quarter and the south half of the northwest quarter of a certain thirty-sixth section of land in Mendocino County. He was at the time qualified to purchase school-lands, and his affidavit was in the form then prescribed by section 3495 of the Political Code, and all the facts set forth therein were true. On the third day of May, 1883, the application was duly approved by the surveyor-■general, and thereafter, on the sixteenth day of June following, defendant paid twenty per cent of the purchase-money and the first year’s interest on the balance, and received from the register of- the land-office a certificate of purchase for the land, in the usual form.

On the twenty-third day of February, 1884, the plaintiff went upon the land in dispute, and began to build a cabin thereon for himself, and ever since has been and now is an actual settler on the land. At the time of his settlement there was no one in the adverse possession of the land, or any part thereof, but about the 27th of the same month one Thomas Dingwall went upon a portion of the land, and commenced erecting a cabin thereon. He completed the cabin and moved into it, with his family, prior to the 18th of April, 1884, and continued [45]to live in it with his family till about the middle of June following. Dingwall claimed the land, and offered to sell out his claim to plaintiff, and plaintiff knew of his possession, and that his family were in the cabin prior to April 18th. While Dingwall was on the land, he was engaged a part of the time getting out redwood timber for the defendant.

On the eighteenth day of April, 1884, plaintiff made an affidavit and application to purchase the whole of the north half of the said section 36, and on the 6th of May following filed the same in the office of the surveyor-general. He was also qualified to purchase school-lands, and his affidavit was in proper form, and all the facts therein set forth were true, except the statement that there was no adverse occupation of the land, which at the time of making and filing the affidavit was untrue.