Maddux v. Brown

Temple, C. Contest for the right to purchase swampland which is suitable for cultivation. The land was segregated by the authority of the United States in 1855, but has not been sectionized. The court found in favor of defendant, and that plaintiff was not an actual settler.

The appeal is from the judgment, and from an order refusing a new trial. Objection was made to certain rulings admitting evidence, and that the evidence was insufficient to sustain the findings.

The defendant made two applications to purchase. One was based upon an alleged survey by one Newman, who assumed to act as deputy of the county surveyor of Tulare County. His appointment as such deputy was by a certificate signed by one A. T. Fowler, as a private individual, and not in his official capacity. It did not purport to appoint Newman as deputy surveyor of Tulare County, but that I, A. T. Fowler, “ by these presents do make, constitute, and appoint H. Newman my true and lawful deputy to survey lot 7, etc.”

The certificate of appointment, with the official oath of Newman, was not filed until after the survey. Evidently, Newman was not a deputy surveyor.

Conceding that a deputy might be de facto such, though not de jure, there is still no evidence tending to establish such fact. The appointment being void, the application founded upon the survey was void, and the finding relating to that issue is unsupported by competent evidence.

Plaintiff and defendant each claimed to be living on the land, and had both previously applied to purchase, and had had a similar contest over the right. The court, in that contest, had found that neither was entitled to purchase. There seems to have been something of a scramble to make the new application. Defendant states that he applied to the county surveyor for a survey; that, [525]being busy, at the request of defendant he deputized Newman, with the result appearing above. Plaintiff also applied to the county surveyor for a survey, and this the surveyor made in person, July 30, 1889.

Apparently, defendant received from the county surveyor a certified copy of the record of this survey before it was furnished to plaintiff, for whom it was made, and on August 1,1889, made out another application to purchase, which was filed in the office of the surveyor-general August 2, 1889.