F. O. WILKINSON v. EDWARD MERRILL, 52 Cal. 424

Neither the State Surveyor-General nor the District Court had any jurisdiction over the contest initiated by respondent for the decision of the Commissioner of the General Land Office, affirmed by the Secretary of the Interior, awarding the land to appellant was final. (Foscalina v. Hoyle, 47 Cal. 437; Hess v. Bolinger, 48 Cal. 849.) Hartman & Haley, for the Respondent. The selections made by defendant were void, because the land, at the time of selection, was unsurveyed by the United States. The selections were not cured by the Act of Congress of July 23rd, 1866. ( Chant v. Reynolds, 49 Cal. 213; Huff v.

Hoyle, 50 Cal. 16.) The decision in the latter case (3 Otto, 558) does not change this rule. The decision only goes to this extent, that when a settlement was made upon land claimed by a Mexican grant, and which land was excluded by final survey, settler has same time to prove up his claim as is allowed to a pre-emptioner. This principle has no application to defendant, who never was upon the land.

By the Court : Under the Act of Congress of July 23rd, 1866, it was a question for the Land Department, first, whether the State had selected the land in controversy in part satisfaction of any grant made to the State by any Act of Congress; second, whether the State had disposed of the land to a purchaser in good faith under her laws; third, whether the land was within any of the exceptions by which lands are reserved from the validating effect of the act; fourth, whether the defendant had proved up his claim before the Register and Receiver in the manner and within the time required by the validating act.

These were questions in which no one but the United States and the defendant were interested; and the Act of Congress confers upon the Land Department the jurisdiction to determine them. On deciding these questions in favor of the applicant claiming as a purchaser from the State, it is made the duty of the Commissioner of the General Land Office to certify the lands over to the State for the benefit of the purchaser.

The Case shows that the selection by the State for the use of the defendant was approved by the Commissioner of the General Land Office and by the Secretary of the Interior, after proper investigation, and thereupon the land was duly listed to the State.

Up to this point the rights of no third person had intervened, and the Land Department, to whom the decision of all the questions of law and fact pertaining to the proceeding were specially confided, having decided in favor of their regularity and validity, the decision was conclusive as against the United States, and is conclusive against the plaintiff, who subsequently attempted to acquire the title from the State. • Judgment and order reversed, and cause remanded for a new trial.