Perri v. Beaumont

De Haven, J. This action is based upon an order of reference made by the surveyor-general of the state referring to the superior court of Kern County a contest concerning the right to purchase certain swamp and overflowed land.

It is averred in the complaint, in general terms, that the defendant, Beaumont, filed with the surveyor-general, in 1873, his application to purchase the land in controversy, and that in 1874 a certificate of purchase was issued to him thereon, and that at the time of filing said application the land had not been surveyed or segregated as swamp and overflowed land. ’ The complaint further alleges that plaintiff, in the year 1888, filed in the office of the surveyor-general of the state his application to purchase said land, and at the same time filed a protest against the issuance of any further evidence of title based upon defendant’s application and certificate of purchase. The complaint also alleges that at the date of his application the plaintiff was, and still is, an actual settler on the land applied for, and has valuable improvements thereon, and that he possesses all the personal qualifications to entitle him to purchase the said land. It is not averred, however, that the land was surveyed at the date of plaintiff’s application. The defendant demurred to the complaint upon the general ground that it does not state facts sufficient to constitute a cause of action. The [32]demurrer was sustained, and the plaintiff failing to amend, the court rendered judgment that he take nothing by the action, and that defendant recover from plaintiff his costs. The plaintiff appeals-from this judgment.

It is clear that upon the facts stated in the complaint the plaintiff was not entitled to a judgment directing the approval of his application to purchase, as it is not alleged that the land applied for was surveyed at the date it was made; but although the plaintiff may not have been entitled to all the relief demanded, still, if upon the facts alleged he was entitled to any relief against the defendant, the demurrer was improperly sustained, and the judgment in favor of defendant for his costs is erroneous. The complaint does allege facts showing the defendant’s application and the certificate of purchase issued thereon to be invalid, and consequently that he has no right by virtue thereof to acquire a patent from the state. The question is thus presented whether, in view of these facts, the judgment rendered by the court against plaintiff, and in favor of defendant for his costs, was proper. It is urged by respondent that inasmuch as the plaintiff does not show by his complaint that the land in controversy was subject to sale at the date of his application, he is not entitled to a judgment as to the validity of defendant’s application upon the facts alleged, and is therefore in no position to complain of the judgment appealed from; and this contention of respondent seems to have been upheld by this court in the case of Urton v. Wilson, 65 Cal. 11, and perhaps, also, in Millidge v. Hyde, 67 Cal. 5; and it may be that there are dicta in other cases which also support this view. The decisions, however, have not been uniform, and upon full consideration, we are of the opinion that the rule announced in Urton v. Wilson, 65 Cal. 11, should not be followed. The jurisdiction of the superior court in this class of cases is special, and is conferred by sections 3414 and 3415 of the Political Code, and when invoked, it is the duty of the court to proceed and determine the eutire contro