Jacobs v. Walker

TEMPLE, C. This is a contest in regard to the right to purchase state lands, and this is the second appeal to this court: 90 Cal. 43, 27 Pac. 48. On the first trial it was found that plaintiff in his application to purchase had falsely stated that there was no possession of any portion of the land adverse to his possession. It was found that in every other respect the matters stated in his application were true, but because of the one false statement it was adjudged that his application was invalid. This finding was affirmed on the former appeal. As to the defendant it was said that there was no finding that he was an actual resident upon the land, nor did it appear that there might not be some part of the land, equal to a legal subdivision, which was suitable for cultivation. The judgment was therefore affirmed as to plaintiff’s claim, and as to the defendant it was reversed, and a new trial ordered. The complaint shows that the land in dispute is a part of a thirty-sixth section. That the defendant applied to purchase on the 23d of February, 1883, which application was approved May 3, 1883, and a certificate of purchase issued to defendant June 16, 1883. That plaintiff made his application May 6, 1884, and at the same time filed with the surveyor general a verified protest in writing against the issuance of any further evidence of title to the defendant. Attached to the complaint is the certificate of the surveyor general to the fact of the protest, and referring the contest to the courts for determination. Defendant’s answer fails to deny that there was a protest, and that there was is found by the court. Yet respondent in his brief claims that plaintiff has not protested, and that the contest was not inaugurated in the state land office. He contends that as it was adjudged that the plaintiff’s application to purchase was [867]invalid, and it has been determined that he has no right to purchase, the contest is ended so far as plaintiff is concerned, and he is out of the ease. Of course, if this be so, plaintiff is not a party and cannot appeal. It would seem, also, that if the contest inaugurated by plaintiff’s protest is ended, the courts have no further jurisdiction of the matter. For where there is no contest, the surveyor general must himself determine such questions as arise. As authority for this proposition he cites Ramsey v. Flournoy, 58 Cal. 260. But that ease was expressly overruled in Perri v. Beaumont, 91 Cal. 30, 27 Pac. 534. So far as this question is concerned, I am unable to find any difference whatever in the last-named ease and this. In both, the contest was inaugurated by a protest in the surveyor general’s office by one who appeared on the face of the record to have made no valid application to purchase, though both had filed formal applications, and both were found to be in possession of some portion of the land. And in these respects both cases seem to be exactly like Garfield v. Wilson, 74 Cal. 175, 15 Pac. 620. In those cases this point was fully discussed, and the matter need not be again considered. According to those cases, plaintiff is a proper party, and is entitled to be heard.