Barnum v. Bridges

Foote, C. This action was brought to determine whether Barnum or Bridges had the better right to purchase a certain half-section of school land from the state, the same being a part of the “thirty-six” sections of land donated to the state of California by the Congress of the United States for school purposes.

[605]Judgment was rendered in favor of the defendant, from which, and an order denying a new trial, the plaintiff appeals.

The first ground claimed to militate in favor of the appellant’s contention seems to be, that the evidence, viewed in the light of the principles enunciated by the appellate court of the state in the case of Manly v. Cunningham, 72 Cal. 240, is plainly and without conflict conclusive of the fact that the land was suitable for the cultivation of ordinary crops, and was therefore agricultural and not timber land, which latter kind the decision of the trial court defined and adjudicated it to be.

The evidence on the one side, as it seems to us, is contradictory, to some extent at least, to that given in favor of the adverse party, and the decision of the lower court upon the point should be upheld. But the further contention is made by the appellant, that the respondent could not be permitted to succeed in the controversy because his application to purchase the land was made more than six months before any demand for the surveyor-general’s approval of such demand had been made.

The trial court seems to have been of the opposite opinion, even conceding, as was the fact, that no such demand had been made within the statutory period just adverted to,—the basis of the conclusion being that the statute in question did not intend to visit the penalty it provided for upon those about whose application to purchase there was no contest,—that tribunal being of the opinion “that the section (Pol. Code, sec. 3498) does not apply in a case where only one application is on file, where no approval could be had by reason of the land being covered with pre-emption filings, and but for which it is made the duty of the surveyor-general to approve without other demand than is implied in the application itself.”

The section of the Political Code, supra, is: “All ap[606]