Megerle v. Ashe

BELCHER, J. — The plaintiff claims title under a patent issued to him by the United States, and the defendants claim under a patent issued to David S. Terry by the state of California.

The facts, so far as material, are substantially as follows:

The plaintiff settled upon the quarter section of land in controversy in 1850, and continued to reside there with his family until 1860, when he was forced to leave by high water. Prior to that time he had entered the quarter section in the proper United States land office and obtained a certificate of purchase therefor. The township including the land in question was surveyed in the field in May and June, 1855, and the plat of survey, properly certified by the surveyor general, was forwarded to the office of the register at Marysville on the fourth day of December, 1855, and received in that office on the fifth day of the same month. No notice of the return of the plat was given until the 15th of February, 1856, when a notice was published in a Marysville newspaper by the officers of the Marysville land office, notifying settlers in the township that it was necessary for them to file their declaratory statements on or before the fifteenth day of May, 1856. On the 16th of April, 1856, the plaintiff filed his declaratory statement in the register’s office, and on the 28th of May, 1860, proved up and entered, and paid for his claim with a soldier’s bounty land warrant. In pursuance of, and to give effect to, the plaintiff’s entry the United States issued to him a patent for the land bearing date on the first day of September, 1863.

At the time of the plaintiff’s settlement and entry he was a qualified pre-emptor under the laws of the United States. On the 14th of May, 1856, Terry, as the agent of the state, selected the quarter section in question in part satisfaction of the grant of five hundred thousand acres of the public lands, made by Congress to the state by the act of September 4, 1841, and on that day located thereon in the proper United States land office a state school land warrant. In pur[758]suance of this selection and location the state of California issued to Terry its patent for the land, bearing date on the eighth day of January, 1862.

It is thus seen that defendant’s title had its inception on the 14th of May, 1856, twenty-eight days after the plaintiff filed his declaratory statement in the land office.

Very much of the labor in the case, both in the court below and in this court, has been expended upon the question whether the township plat is to be deemed to have been “returned” to the land office on the 5th of December, 1855, when it was received there, or not till the fifteenth day of February following-, when notice to the settlers was published by the register and receiver.