B. D. MURPHY, Respondent, v. SANDY SUMNER, Appellant, 74 Cal. 316

Temple, J. This is an action to recover seventy-seven acres of land, being lots 1, 2, and 3,

section 18, township 30 south, range 14 east, Mount Diablo base and meridian. Plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying his motion for a new trial. The land was twice surveyed under the direction of the United States surveyor-general for California, and each survey was duly approved by that officer, and the plat placed on file in the United States land-office. The first survey was made and approved in 1868, and it was afterward found that the lines actually run on the ground did not accord with other surveys, and were incorrect.

A second was therefore ordered, which was made and approved in 1880, and the plat thereof duly filed in the United States land-office in lieu of the first erroneous survey. The plaintiff obtained from the state a certificate of purchase as lieu land, dated January 18, 1870, ten years before the new and correct survey was made. On the trial, plaintiff introduced his certificate of purchase, and proved the first survey and the approval of it, and that the plat was filed in the United States land-office. He also showed that, according to the lines actually run on the ground, the defendant’s house is upon his land.

The defendant claims no part of

section 18, but does claim the northwest quarter of

section 17, in the same township, under a homestead entry, made after and according to the corrected survey and plat of 1880. On the trial, the defendant proved the second survey and his homestead entry, and that according to that survey he was not in possession of any portion of

section 18. The land thus in controversy consists of a strip about two hundred yards wide, on which are the defendant’s improvements. Many exceptions were taken at the trial, which, under the view we take of the case, it is not necessary to notice. It is not claimed that the defendant has intruded upon the actual possession of the plaintiff, or that plaintiff ever was in actual possession of the land. He relies upon strict title. It may be admitted that upon proof that the land had been surveyed and a certificate of purchase duly issued to him, he made a prima facie case.

The defendant then proved the corrected survey and a homestead entry, and that according to this last survey he is in possession only of the land included within his homestead entry. It is not claimed that the lands had been actually listed to the state when the certificate of purchase was issued. The statute did not require the surveyor-general to ascertain that fact before issuing the certificate, and we know that at the time this certificate was issued, the practice was to issue such certificate before the lands had been listed over.

That no such presumption arises from the fact of the issuance of the certificate seems to be held in Hodapp v. Sharp, 40 Cal. 69, a case upon which respondent relies. Unless the plaintiff had acquired some rights under the first survey to a specific tract of land, we see no reason why a correct survey could not be made and substituted for the incorrect survey.

Unless, therefore, the land had been listed to the state, prior to the second survey, the plaintiff cannot insist upon the first survey as decisive of the controversy, and it would follow that the evidence of the defendant overcame the prima facie case of the plaintiff, if it be conceded that the certificate of purchase did make a prima facie case. To prove that the land described in the certificate of purchase had been listed to the state prior to 1880, the plaintiff offered the certificate of W. E.

Wheaton, register of the United States land-office, showing that the lands had been listed to the state of California on March 2,1875. The offered evidence was objected to, on the ground that it is not evidence of any facts, and that there is no such certificate known to the law. The objection was overruled, and the defendant excepted, and in his statement on motion for a new trial, specifies the ruling as error. The point was not made in applicant’s points, but was at the oral argument. The certificate was as follows:— “I, William. E. Wheaton, register, do hereby certify that lots 1, 2, and 3,

section 18, township 30 south, range 14 east, Mount Diablo meridian, were approved to the state of California by honorable Secretary of Interior on March 2, 1875. Indemnity sections. • “ Wm. E. Wheaton, Eegister.” We are not cited to any statute which makes such a' certificate evidence. If the secretary did so list the- land to the state, the list transmitted to the register was on file in his office, and a copy might have been procured, but to give such a certificate is no part of the official duty of the register.

There was no other evidence of this essential fact, and as the court erred in receiving this, a new trial must be ordered. So ordered. Searls, C. J., McFarland, J., Sharpstein, J., McKinstry, J., Paterson", J., and Thornton, J., concurred.