S. C. HASTINGS, Respondent, v. JOHN DEVLIN, Appellant, 40 Cal. 358

Sawyer, J., delivered the opinion of the Court, Sander-SON, J., and Bhodes, J., concurring: This is an action to recover land. The plaintiff relies upon a location of a school land warrant made in 1853, under the Act of May 3, 1852, authorizing the location of school land warrants on lands-of the United States, as a part of the five hundred thousand acres granted to the State by the eighth

section of the Act of Congress of September 4, 1841. The defendant is in possession, claiming title under a patent from the State, dated March 20, 1863, issued in pursuance of the location of a school land warrant, made February 14, 1857. The plaintiff must show title to enable him to recover.

H.e introduced in evidence, under objection and exception' on the part of defendant, a certified copy from the County Becorder’s office, of a survey made by the County Surveyor of Solano County, on the 20th of June, 1853, at the request of one Isaac Thomas, for the purpose of locating School Land Warrant No. 133, in pursuance of the provisions of the Act of May 3, 1852. It was filed for record June 25, 1853, and all the acts required by statute had been performed on that day. At this time, the final surveys by the United States had not been made.

We have already held that unsurveyed lands are not subject to selection under the Act of Congress; and that the locations of school land warrants under the Act of May 3, 1852, upon such lands, conferred no right whatever on the locator. (Terry v. Megerle, 24 Cal. 610; Grogan v. Knight, 27 Id. 520.) The location of School Land Warrant No. 133, on the 20th and 25th of June, 1853, was a nullity and conferred no rights in the land upon the locator.

No subsequent Act of the Legislature has been called to our attention — and we have found none passed since the final survey, which constitutes the said location a valid selection on behalf of the State of the lands so located, or renders that Act valid. It was void when made, and has not been made valid by any subsequent legislation.

Subsequent Acts have been passed authorizing warrants issued under the Act of 1852, to be located upon surveyed lands, subject to selection; but no evidence was introduced showing that Warrant No. 133, had been located upon the lands in question, in pursuance of such subsequent Acts. The rights of plaintiff, so far as shown by the evidence, depend upon the- location, under the Act of 1852, and, as we have seen, that location conferred no right at all. The certificate was, for the reason indicated, improperly admitted in evidence, and, being in, shows no right to recover.

We know of no statute of California, or of tbe United States, authorizing the performance of the acts -set forth in the certificate of Gift, Register of the Land Office at Benicia, of December 24, 1863, or any statute or principle of law making the certificate evidence of the facts • stated. Its admission in evidence was error. The same may be said in respect to the admissibility of the certificate of S. T. Nye, Register of the Stockton Land Office, of December 26th, 1864. This certificate is not a certified copy of any record in his office.

It is simply a statement of facts within his knowledge relating to past transactions. We have not been referred to any statute or authority showing such statements to be competent evidence for the purpose for which it is now sought to be used.

It is offered in evidence in a Court of justice upon a litigated point respecting title to lands- — not presented as the certificate of an officer of one Department of the Government, for the information of another upon a matter relating to the duties of his office, in pursuance of the provisions of some statute, or regulation of the respective-departments describing the course of their proceedings. Nor is it offered to show the fact that such a certificate was presented to and acted upon by an officer of the Government, or was the link in the chain of an official proceeding resulting in a patent.

It was offered as competent evidence to establish the facts therein recited. We know of no statute or principle of law, taking this certificate out of the ordinary rules of evidence applicable to proceedings in Courts of justice. We think it was improperly admitted. The view taken renders it unnecessary to consider the question as to the validity of defendant’s patent. Judgment and order denying a new trial reversed, and a new trial granted. Curry, C. J.r and Shatter, J., 'expressed no opinion.