SAMUEL J. SHERMAN v. D. S. K. BUICK, 45 Cal. 656

By the Court, Rhodes, J.: This action was brought for the recovery of the possession of the southwest quarter of the southeast quarter of

section thirty-six, township five south, range one east, Mount Diablo meridian. The plaintiff claims title under a patent issued to him by the United States on the 15th day of May, 1869. The defendant claims title under a patent issued to him by this State on the 6th day of January, 1869. The plaintiff' offered to prove that the land was not surveyed by the United States until about August 11th, 1866, when the official township plat was filed in the Land Office at San Francisco; that he settled on the land described in his patent—the north half and the southwest quarter of the southeast quarter of said

section thirty-six—as early as the 20th day of December, 1862, and has ever since resided thereon; that he filed his preemption claim on said land ¡November 6th, 1866, and thereafter made proof and payment therefor, and received a duplicate preemption certificate upon which his patent issued. The Court excluded the evidence.

One of the questions arising upon this ruling of the Court, considered in connection with the evidence which had been admitted, is whether the title to these lands was in the United States at the time when the patent was issued to the plaintiffs or whether it had before that time vested in this State. That is the most important question in the case, and as there are other controversies in this State involving the same question, it is important that it be settled without any unnecessary delay. And if our conclusion be wrong the Supreme Court of the United States may readily correct it. The sixth

section of the Act of Congress of March 3d, 1853 (10 U. S. Stats., 246), provides that “ all the public lands in the State of California, whether surveyed or unsurveyed, with the exception of sections sixteen and thirty-six, which shall be and hereby are granted to the State for the purposes of public schools in each township, * * * shall be subject to the preemption laws of the 4th of September, 1841,” etc. It is provided by

section seven of that Act “ that where any settlement, by the erection of a dwelling house or the cultivation of any portion of the laud, shall be made upon the sixteenth or thirty-sixth sections before the same shall be surveyed * * * other land shall be selected by the proper authorities of the State in lieu thereof,” etc. The third proviso to the sixth

section is as follows: “Provided, that nothing in this Act shall be construed to authorize any settlement to be made on any public lands not surveyed, unless the same be made within one year from the passage of this Act; nor shall any right of such settler be recognized by virtue of any settlement or improvement made of such unsurveyed lauds subsequent to that date.” This proviso was extended by the Act of March 3d, 1854, so as to permit settlements to be made on unsurveyed .land within two years after the passage of the Act.

There is only one other Act of Congress which purports to grant permission to settle upon and acquire preemption rights to unsurveyed land in this State, and that is the Act of May 30th, 1862 (12 U. S. Stats., p. 409). The first clause of the seventh

section is in these words: “That in regard to settlements which by existing laws are authorized in certain States and Territories upon uusurveyed lands, which privilege is hereby extended to California,” the preemption claimant is required to file his declaratory statement within a certain time mentioned in the section. We are referred by counsel to several Acts then in force, which granted the right of preemption of unsurveyed land; and among others are the Act of August 4th, 1854, “to extend the right of preemption over unsurveyed lands in Minnesota, and for other purposes ” (10 U. S.

Stats., 576); the Act of July 17th, 1854, concerning public lands in Oregon (10 id., 305); the Act of July 22d, 1854, to establish the offices of Surveyor General in New Mexico, Kansas, and Nebraska (id. 308, See. 7); and the resolution of March 3d, 1857, relative to sections sixteen and thirty-six, in the Territories of Minnesota, Kansas, and Nebraska (11 id. 254). These Acts authorize settlements to be made on unsurveyed land in the Territories mentioned in the respective Acts, and the last refers specially to sections sixteen and thirty-six. It was held by this Court in Higgins v.

Houghton, 25 Cal. 252, that the Act of Congress of March 3d, 1853, vested in this State the title to the sixteenth and thirty-sixth sections in each township; that the power of locating the land granted, by means of a survey of the public lauds, was reserved to the General Government, and, “as fast as townships thereafter were surveyed and sectionized, that the State became the owner of the sixteenth and thirty-sixth sections absolutely, not only as to quality, but as to position also.” In support of that position the Court cited Doll v. Meador, 16 Cal. 296; Van Valkenburg v. McCloud, 21 Cal. 330; and Foley v.

Harrison, 15 How. 447; and the Court added “that by the grant of the sixteenth and thirty-sixth, sections to the State in full property, they were effectually withdrawn from the operation of the Acts, relating to preemptions.” The lands in controversy were mineral lands.

The grants, so far as respects the location of the lands granted, was of course subject to the exception of lands reserved by competent authority, and lands to which a valid right of preemption should attach, under the provisions of the Act, prior to the survey—that is to say, the lands to which a valid right of preemption might be acquired by means of a settlement which had already been made, or which might be make within one year after the passage of the Act.

The words of grant in the swamp land Act of Congress of the 28th of September, 1850, are that the lands “ shall be and the same are hereby granted to said State.” In Summers v. Dickinson, 9 Cal. 554, and Owen v. Jackson, id. 322, it was held that those words imported a present grant; and in Keeran v. Griffith, 27 Cal. 87, this Court reviewed the question, and again came to the conclusion that the Act operated as a full and perfect conveyance in presentí.

The plaintiff in the last case claimed title under a patent issued by the State as for “swamp and overflowed land,” and the defendant claimed title by virtue of an entry under the Homestead Act of 1862, the entry being subsequent to the date of the patent issued by the State. The question as to the construction of the swamp land Act of 1850 was again considered in Robinson v. Forrest, 29 Cal. 317. The plaintiff claimed title under a swamp land patent, and the defendant had entered on the land while it was unsurveyed, claiming the right of preemption.

The Court gave the same construction to the Act as was given in Kee ran v. Griffith, but with a qualification in respect to certain parcels of swamp and overflowed land, which is not material to the question now before us.

The question as to whether after the swamp land Act of 1850 Congress had competent authority to grant the privilege of acquiring rights in those lands under the preemption or homestead laws, was not considered in those cases, nor in view of the construction which the Court gave to the Act, would it seem necessary to have done so, for it would be a palpable contradiction in terms, to say that the Act operated as a grant in presentí of the “ swamp and overflowed lands,” and at the same time hold that Congress might change, impair, or destroy the grant by creating further limitations, reservations, or exceptions, or by conferring on other parties the title, or the right or privilege of acquiring the title, to the same lands.

Accepting as correct the construction of the words of the sixth

section of the Act of March 3d, 1853, as announced in Higgins v. Houghton, supra, our conclusion is that the title to each sixteenth and thirty-sixth section, upon its being surveyed, vested absolutely in the State; that Congress had no power after the passage of that Act to impair the grant or prevent the title to those sections upon their being surveyed from vesting in the State; and that therefore the Act of Congress of May 30th, 1862, did not have the effect to extend the right of preemption over those sections. Judgment and order affirmed.