WILLIAM IRVINE, Respondent, v. MRS. J. C. TARBAT, Appellant, 105 Cal. 237

Searls, C. This is what would formerly have been termed an action of ejectment to recovera small tract of land, parcel of one hundred and forty-three and twenty-three one-hundredths acres patented to the plaintiff October 13, 1890, by the government of the United States, situate at or near Carson Hill, county of Calaveras, state of California. The defense set up was that the locus in quo was and is a part of the townsite of Carson Hill, and as such was not subject to patent by plaintiff.

The statute of limitations was also pleaded in bar of the action, but as such action was instituted April 13, 1891, within six months next after the issuance of patent, the plea cannot prevail, if plaintiff’s patent was valid to convey title. Plaintiff had judgment, from which and from an order denying her motion for a new trial defendant appeals. Plaintiff introduced his patent to the land, proved that the land in dispute was included therein, and rested.

Defendant, among other testimony introduced for the purpose of proving a townsite, offered in evidence, and, against the objection of plaintiff was permitted to introduce, the proceedings had in the United States land-office, from which it appeared that in September, 1879, plaintiff Irvine settled upon the land which had been surveyed in 1871. On May 22, 1883, he made homestead entry of said land, and in December, 1885, he made final proof.

Against the allowance of the final entry, sundry parties, among vfhom was appellant, protested upon various grounds, among which were “ that the townsite of Carson is situate on portions of the lands last aforesaid.” Thereupon and thereafter such proceedings were had in the case that, upon an appeal from the local land-office to the commissioner of the general land-office, it was held, among other things, “ that the claim of a town-site is not supported by the facts in the case,” and reversing the finding of the local land-officer that “ Carson was a valid and legal townsite,” which decision was, on an appeal, affirmed by the secretary of the interior department.

Respondent was thereupon permitted to make0 final proofs,"and the patent in evidence issued to him. There was no showing that Carson was ever an incorporated town or village. .

It was admitted at the trial by counsel for the respective parties that at the time of plaintiff’s application and during the contest “ testimony was taken by the land department as to the existence of a town or townsite settlement, or a place of trade or business upon the land embraced within the boundaries of the patent. “It is further stipulated that the land department passed upon these questions prior to the issuance of a patent to plaintiff.” Appellant contends that the townsite of eleven acres was reserved from pre-emption or homestead entry, and cites various sections of the Revised Statutes of the United States in support of this theory.

Section 2257 provides that “all lands belonging to the United States, to which the Indian title has been or may hereafter be extinguished, shall be subject to the right of pre-emption, under the conditions, restrictions, and stipulations provided by law.”

Section 2258 provides that “the following classes of lands, unless otherwise specially provided for by law', shall not be subject to the rights of pre-emption, to wit: 1. Lands included in any reservation by any treaty, law, or proclamation of the President, for any purpose; 2. Lands included within the limits of any incorporated town, or selected as the site of any city or town; 3. Lands actually settled and occupied for purposes of trade and business, and not for agriculture; 4. Lands on which are situated any known salines or mines.”

Section 2382 provides that persons who have founded •or may hereafter found a city or town upon the public lands may file with the recorder of the county a plat thereof, etc., giving name of the city or town, showing streets, squares, etc., to be verified under oath, and in one month a verified transcript must be forwarded to the general land-office, etc. The subsequent sections of the same

chapter provide the modes by which the authorities of incorporated towns, and the county judge in cases of unincorporated towns, may enter and purchase from the government, for the use of the inhabitants, the lands included within the townsites. The question whether or not the public lands are subject to pre-emption or homestead depends upon the existence or nonexistence of certain facts, among which are, Is it more valuable for mining or agricultural purposes ? Does it include any incorporated towm, or has it been selected as a townsite ?

Is it actually settled upon and occupied for purposes of trade and business, or does it include any known salines or mines ? These are all questions of fact to be determined by the land department preliminary to granting a patent to such lands, and, as was said in St. Louis Smelting Co. v. Kemp, 104 U.

S. 645: “When the authority depends upon the existence of particular facts, or upon the performance of certain antecedent acts, and it is the duty of the land department to ascertain whether the facts exist or the acts have been performed, its determination is as conclusive of the existence of the authority against any collateral attack as is its determination upon any other matter properly submitted to its decision.” To discuss this case at length would involve the restatement of a doctrine which has been enunciated so frequently by this court, and by the supreme court of the United States, that it has come to be regarded as elementary.

The rule alluded to is this: “A patent duly signed, countersigned, and sealed for public lands which, at the time it was issued, the land department had, under the statute, authority to convey, cannot be collaterally impeached in an action at law; and the finding of the department touching the existence of certain facts, or the performance of certain antecedent acts, upon which the lawful exercise of that authority may in a particular case depend, cannot, in a court of law, be questioned.” The above is quoted, for the sake of brevity, from the syllabus in St. Louis Smelting Co. v. Kemp, 104 U.

S. 636, as fairly exemplifying the conclusion reached in that case and many others. (Green v. Hayes, 70 Cal. 276; Quinby v. Conlan, 104 U. S. 420; Doll v. Meador, 16 Cal. 295; Sparks v. Pierce, 115 U. S. 408; Stewart v. Sutherland, 93 Cal. 270; Gale v. Best, 78 Cal. 235; 12 Am. St.

Rep. 44.) It follows from all the cases, of which the foregoing are but a fraction, that plaintiff’s patent, which is not shown to contain any reservations, was conclusive evidence that the land in question was open to pre-emption and homestead, and that there was no town site thereon or settlement for the purpose of trade and business. The evidence offered by the defendant to reopen the question as to the character of the land in this action at law was not admissible.

Its introduction, however, only tended to substantiate the presumption of the patent by showing that the land department did, in fact, pass upon and decide adversely to the appellant the very questions sought to be again litigated here. The judgment and order appealed from should be affirmed. Vanclief, C., and Temple, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. Van Fleet, J., Garoutte, J., Harrison. J.