JAMES READ v. HERMAN CARUTHERS and JOHN EDWARDS, 47 Cal. 181

By the Court: The plaintiff, in order to establish his alleged title to the premises, relied upon a State patent issued to one Haugland, in which the lands were described as swamp and overflowed lands. The defendant was in possession, claiming to o.ccupy the premises as a pre-emptioner under the United States laws, and, against the objection of the plaintiff, he proved that the lands described in the State patent were not, in fact, swamp and overflowed lands within the intent of the Arkansas act.

The action of the Court below in permitting the defendant to attack the State patent in this respect is the only supposed error relied upon to reverse the .judgment rendered in the case. It is conceded that, prior to the passage of the act of March 28th, 1868, to provide for the management and sale of the lands belonging to the State (Acts 1867-8, p. 507), a person claiming, as the defendant here claims, was at liberty to assail the State patent in this respect; and such is the doctrine of the cases of Kile v. Tubbs, 23 Cal. 439; Kernan v.

Griffith, 27 id. 87; and other and later cases cited in the respondent’s brief. It is. argued for the appellant, however. that the act of March 28th (supra) has wrought a change in this regard, and that the effect of the publication of the notice of application for the patent provided for in the fifth

section is to conclude all persons, upon the fact that the lands applied for are swamp and overflowed. The possession of the defendant being that of a preemptioner, and he asserting that the ultimate title is in the United States, it is obvious that the notice authorized by the fifth

section of the act referred to effects nothing, unless (as is, indeed, claimed upon the part of the plaintiff) the Government of the United States was thereby cited to appear in the State Land Office and there contest its. claim-of title with the State, and that for its failure to so appear it has been duly defaulted and concluded—a proposition so clearly' untenable as not to merit discussion. Judgment affirmed.