Nuttall v. Lovejoy

Paterson, J. — A contest arose in the office of the surveyor-general as to which one of the parties hereto had the better right to purchase the land in controversy, and on March 28,1888, an order was made referring the contest to the superior court of the county of Tulare for a final determination of the conflicting claims. That court found that the land in controversy was, on September 28, 1850, and ever since has been, swamp and overflowed land, and, as such, became the property of the state, by virtue of the act of Congress passed September 28, 1850; that the land was segregated and set apart to the state of California on October 14, 1884, and on December 1st, following, a certified copy of the township plat, duly approved, was filed with the register of the state land-office; that on December 31, 1883, the defendant Lovejoy filed an affidavit and application in due form for the purchase of the land, in the office of the surveyor-general, which application was approved by said surveyor-general on October 15, 1885; that on December 9,1885, the register of the state land-office issued and delivered to defendant Lovejoy a certificate of purchase in due form, and said certificate has never been annulled or canceled; that the defendant Hall filed his application in due form to purchase the land, September 9, 1887; that the plaintiff, Nuttall, filed his affidavit and application in due form to purchase the land on January 12, 1888. The defendant [165]Stevenson made no appearance at the trial, and judgment went against him by default.

The court rendered judgment in favor of the defendant Hall, and the plaintiff, Nuttall, and the defendant Lovejoy both moved the court for a new trial. The plaintiff’s motion was granted, and the motion of the defendant Lovejoy was denied. The defendant Lovejoy appealed from the judgment, and from the order denying her motion for a new trial, and the defendant Hall appealed from the order granting plaintiff a new trial, but did not appeal from the judgment.

The defendant Lovejoy’s application to purchase having been filed before segregation by the United States to the state, no right attached by reason of such application, nor by reason of the subsequent approval and certificate of purchase issued to her. (Buchanan v. Nagle, 88 Cal. 591.) The court therefore properly decided against her claim, and as no errors of law occurred at the trial, her motion for a new trial was properly denied.

Her appeal from the judgment is also without merit. She alleged in her answer that the lands were unfit for cultivation. The defendant Hall alleged the same thing. She is the only party who has appealed from the judgment. If the findings show that the land is unfit for cultivation, she cannot complain; it is a finding in her favor. If they show that the lands are unfit for cultivation, it is a finding outside of the issues between her and the defendant Hall, who has not appealed from the judgment. (In re Doyle, 73 Cal. 564; Bulwer C. M. Co. v. S. C. M. Co., 83 Cal. 589.) In any event, a finding as to the character of the land could in no way affect the right of the defendant Lovejoy, because, as stated above, no right could attach by reason of an application filed before the lands were segregated.