JOHN R. KEERAN v. FRANCIS R. ALLEN, 33 Cal. 542

By the Court, Shafter, J.: Questions arising in this case were passed upon by us in 27 Cal. 91, and in 31 Cal. 461. The case comes here upon an appeal from the judgment, aided by a statement of errors alleged to have occurred at the trial. The plaintiff made title to the premises as swamp and overflowed lands under a patent from the State. The defendant claimed them under the Homestead Law of 1862, and introduced evidence, subject to objection, tending to prove an equitable right to the land under said Act, as against the Government. The objection to the evidence was that “ the land was not subject to entry as homestead, because taken out of the operation of the Homestead Law by

an Act for the relief of purchasers and locators of swamp and overflowed lands, passed March 2d, 1855, and

an Act to confirm to the several States the swamp and overflowed lands, approved March 7th, 1857. (See Lester’s Land Laws, Nos. 275, 319.) We have given these Acts an attentive examination.

As to the Act of 1855, its purpose and effect have been so clearly misapprehended that the error could not be made more manifest than it is on the face of the statute, by any amount of exposition; while, as to the Act of 1857, the confirmation, provided for herein, is expressly limited to selections of swamp and overflowed lands “ theretofore made and reported to the Commissioner of the General Land Office.” There is nothing in the record showing that the lands in controversy were ever reported as State selections to the Commissioner; and the confirmation asserted must fail for that reason.

Second—The farther claim that the premises were confirmed to the State, and that its title, resting in the plaintiff, was made perfect by the operation of the Act of Congress of July 23d, 1866, entitled “An Act to quiet land titles in California,” is equally -unfounded. The rights of claimants under the pre-emption and homestead laws of the Hnited States are not affected by the confirmation for which the Act provides, but are expressly saved therefrom by the first

section of the Act. Third—The Court instructed the jury that “if, at the date of the grant, September 28th, 1850, the land was such that, regularly and annually, after the subsidence of the waters, a crop of either wheat, rye, barley, oats, corn, buckwheat, peas or beans could be successfully cultivated and produced, then the land was not rendered unfit for cultiva-tion by reason of the overflow, and that the defendant was, in such case, entitled to a verdict.” We held in Kernan v.

Griffith, 31 Cal. 461, that the lands covered by the State patent could not be regarded as “ overflowed,” unless, by reason of the periodical overflow to which they were subjected, they were rendered, in the language of the grant, “unfit for cultivation.” We furthermore held that if, after the subsidence of the waters, “grain or other staple crops could be raised on the land,” it could not be considered swamp and overflowed.

The Court below accepted this rule as the true test of the fitness of the land for cultivation; and, assuming grain as a staple crop, added certain other products to it as bearing that character. We consider all of them to be staple in character. They are all raised largely for home consumption, and they are all of commercial value and importance. Any distinction taken between them must be fanciful in the main.

While the question of “ unfitness for cultivation ” should be solved with a proper reference- to principle, still, for the purposes of exactness and uniformity in judicial administration, it is desirable to subject it to some test which juries can readily appreciate and apply. To that end, the capacity of the land to produce a staple crop as the result of cultivation was hit upon by the Land Office at an early day, as a test by which to determine the character of the land, as wet or dry (Lester’s L. L., 547); and this test has been steadily adhered to ever since.

We do not now feel at liberty to set it aside as fallacious, nor even to modify it, and certainly not for the reason adduced in argument, that a rule might he adopted more favorable to the State. Fourth—The point that the testimony of persons who had no knowledge of the lands in suit, concerning the capability of- other and remote lands for cultivation, was improperly admitted, is not available, for the- reason that the evidence was received without objection.

Fifth—The instruction that the patent was not prima fade evidence as against the defendant, a claimant under the Government—that the lands were swamp and overflowed, in fact—was correct. That point was decided in 31 Cal. 463. Sixth—There was no motion for a new trial, and the case therefore cannot be reviewed upon the evidence. Judgment affirmed. Mr. Justice Rhodes did not express an opinion.