Oakley v. Stuart

RHODES, J. This is an action to determine a contest arising in the state surveyor general’s office, for the purchase of a portion of a sixteenth section of public school lands belonging to the state. The lands were surveyed in the field and the township plat approved in the year 1861, and the plat was returned to the office of the register of the local land office on the eleventh day of April, 1873. Applications for the purchase of the land were made by Linebaugh, Stuart and the plaintiff.- That of the plaintiff was in all. respects sufficient, and he is entitled to purchase the land [2]if those of Linebaugh and Stuart, which were prior in point of time, were for any reason invalid.

The application of Stuart was made on the twelfth day of April, 1873, under the provisions of section 3495 of the Political Code. His affidavit stated that there was no occupation of the lands adverse to any he had, and failed to state that the township had been sectionized or that the plaintiff was in the adverse occupation of the lands sought to be purchased. The court found that the plaintiff entered into the possession and occupancy of a large portion of the lands between January 1 and April 1, 1873, and ditched and fenced the same, and cultivated and sowed grain thereon, and continued to occupy the same to the time of the trial of the action. The section of the Political Code above referred to requires the affidavit of the applicant to state “that there is no occupation of such lands adverse to any he has, or if there is an adverse occupant, then the affidavit must show that the township has been sectionized three months, and that the adverse occupant (giving his name) has been in such occupation more than sixty days.” The court below was of the opinion that the affidavit was insufficient under the law and invalid, because it did not state the fact that the lands were in the adverse occupation of the plaintiff. .That conclusion is, in our judgment, correct. It is fully sustained by Woods v. Sawtelle, 46 Cal. 390, the affidavit in that case exhibiting the same defect as that now before us: See, also) Hildebrand v. Stewart, 41 Cal. 387. It may be true, as contended by the intervener, that the words of section 3497, Political Code, “any person settling upon a sixteenth or thirty-sixth section” mean one who has made a “settlement” upon the land within the meaning of the pre-emption laws of the United States, and that such person could not claim a priority in the purchase unless he complied with the provisions of the code, but that question is not involved in the inquiry as to whether the affidavit of Stuart is valid. For the purpose of that inquiry, it is immaterial whether another person has lost his priority or right in any other respect. The failure of the affidavit to state the required facts renders it invalid.