W. H. ALLEN, Appellant, v. MANUEL PEDRO et al., Respondents, 138 Cal. 202

COOPER, C. The defendants’ demurrer to the complaint was sustained, plaintiff declined to amend, and judgment was entered for defendants. This appeal is from the judgment, and presents the sole question as to the ruling on the demurrer. The action was brought to enjoin defendants from mining upon certain lands claimed by plaintiff pending proceedings instituted in the United States land office for the purpose of having it there determined whether the land is agricultural or mineral in character. A temporary injunction was granted, which was afterwards dissolved on motion of defendants.

A separate appeal was taken to this court from the order dissolving the injunction and the order affirmed here. Allen v. Pedro, 136 Cal. 1. In affirming the order this court said:— “It is not necessary to consider respondents’ contention that a court of equity will never interfere by injunction in a case pending in another tribunal, where it has no jurisdiction to take hold of the entire matter in dispute and settle the ultimate rights of the parties, which, it is admitted, the court would have no jurisdiction to do in the case at bar.

It is sufficient to say that, conceding such jurisdiction, it must at least appear from the complaint that plaintiff has a title which is being litigated in the other tribunal; and this fact does not appear in the complaint in the case at bar. It merely appears that plaintiff had made application in the state land office of California to purchase a part of

section 14 in a certain township, had made payment of the proper fee for such application, and had received a certificate of such payment from the surveyor-general of the state. The land is not a school section, nor does it appear that the state had any title to it whatever. If plaintiff sought to get the land as lieu land, he acquired no title from the State, because the latter could get no title until the land had been selected, and the selection approved by the United States land department, and the land listed to the state (Roberts v.

Gebhart, 104 Cal. 67); and there .is no averment or pretense that this had been done in the case at bar. Plaintiff, therefore, did not present facts which would have entitled him, under any view, to the injunction prayed for.” The decision quoted disposes of the question here, and the demurrer was properly sustained. The judgment should be affirmed. Chipman, C., and Smith, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Van Dyke, J., Garoutte, J.