Megerle v. Ashe

RHODES, C. J. — On the last appeal in this action (33 Cal. 74), the only evidence of the time when the township plat was returned to the register’s office at Marysville was an unsigned indorsement: “Filed December 5, 1855, Marysville Land Office”; and as both parties regarded the plat a& having [660]been returned to that office, it was held that that indorsement was evidence — though slight — of the time when it was returned. On this appeal the record contains further evidence on that point. The parties stipulated that on the 4th of December, 1855, the surveyor general did officially transmit to the register the plat; and that on the 5th of December, 1855, the register received the plat at his office — the plaintiff reserving all legal objections as to the effect of these facts. And it was also stipulated that in February, 1856, the register and receiver at Marysville published in a newspaper, at that place, a notice to settlers in that township, requiring them to file their declaratory statements on or before the 15th of May, 1856 — the defendants reserving the right to object to the admissibility of the notice as evidence. The parties renewed their objections to the respective stipulations when they were offered in evidence. The jury found that the plat was returned to and filed in the land office on the fifteenth day of February, 1856. There is no valid objection to the admissibility of the facts recited in the stipulations. The publication of the notice was regarded by the Secretary of the Interior as establishing the date of the official filing of the plat in the land office — as appears from his opinion, which is contained in the transcript in this case. The act of Congress of March 3, 1853, provides that the declaratory statement must be filed within three months after “the return of the plats of the surveys to the land offices. ’ ’ It could not have been intended by the act that settlers should be required to take notice of the return of the plat to the land office, before it was filed by the register, or, in some manner, kept in his office, so that persons, who might he affected by notice of its “nature” could have access to it as an official document belonging to his office. The Secretary of the Interior, in the opinion above referred to, does not seem to regard the return of the plat by the surveyor general as a full compliance with the act, but that an official filing of the plat by the register was requisite; and he regards the notice, which was directed to the persons who were to be affected by the filing of the plat, as fixing the time when it was officially filed by. the register. There was, therefore, evidence tending to sustain the special finding of the jury, in respect to the time at which the plat was returned and filed. The plaintiff’s declaratory statement