Copp v. Harrington

RHODES, J. — The defendant applied to the surveyor general, in December, 1869, to purchase the lands in controversy —they being portions of section 10, township 12 north, range 1 west — in lieu of certain portions of sixteenth sections. The application was made under the act of March 28, 1868 (Stats. 1867-68, p. 507), and it was approved in April, 1870; and the defendant, having made part payment for the land, as required by law, the register, on the 14th of April, 1870, issued to him a certificate of purchase.

On the 30th of April, 1870, the plaintiff made his application for the purchase of the same lands, in lieu of the school lands mentioned in the defendant’s application; but the surveyor general refused to approve the application, and entered an order referring the contest between the plaintiff and defendant, as to their respective rights to purchase the land, to the proper district court for trial. The defendant had judgment, and the plaintiff appeals.

The defendant’s application to purchase failed to state whether there were any improvements, on the land other than those of his own, and a part of the facts required to be stated were set forth in an unverified statement. For these reasons the application was fatally defective, as we held in Hildebrand v. Stewart, January Term, 1870. On the 24th of March, 1870, a certain act was passed (Stats. 1869-70, p. 352), by which it was provided that all applications under the act of March 28, 1868, theretofore made, “where there are not two or more applicants for the purchase of the same land, or conflicts between claimants, shall be held good and valid,” though not made in conformity with said act of 1868. There were neither two or more claimants for the purchase of the lands, nor was there any conflict between claimants to the lands, at the time when the act of 1870 took effect — the date of its passage. The defendant’s application was thereby rendered as valid and effectual for all purposes as it would have been had it strictly conformed to the provisions of the act of 1858. [755]The act did not insert into the application the omitted facts, but it declared that the application, as it then stood, should be valid both in form and substance; and it became the duty of the surveyor general to approve the selection and location of the lands, unless there were other objections than were found in the application. But the act did not make the application any better, or give it any higher grade or character than it would have possessed had it conformed to the law at the time it was filed. It did not place the applicant beyond the reach of a contest, nor did it, in case of a contest, waive the proof of any fact which would be required to be established under the act of 1868.