Duty of county treasurer. SEC. 6. It shall be the duty of the county treasurer to deliver to the collector of licenses, immediately upon this act taking effect, all papers, books, materials, and other property appertaining and belonging to the license department. And all acts or parts of acts requiring the county treasurer to collect licenses in the city and county of San Francisco, and all other acts or parts of acts, so far as they conflict with this act, are hereby repealed; provided, that nothing in this act contained shall curtail the clerical force in the office of the treasurer of the city and county of San Francisco during the term of office of the present incumbent. SEC. 7. This act shall take effect and be in force on and after the twentieth day subsequent to its passage. An Act in relation to the collection of licenses in Alameda county. [Approved March 14, 1878; 1877-8, 255.] This act made it the duty of constables to enforce the collection of licenses in their respective townships, etc. An Act concerning licenses in the county of San Benito. [Approved March 16, 1878; 1877-8, 272.] This act provided a new system of licenses for the county named, and repealed conflicting acts. An Act to facilitate and equalize the collection of licenses in the city and county of San Francisco. [Approved March 23, 1878; 1877-8, 442.] II. THE YOSEMITE VALLEY AND MARIPOSA BIG TREE GROVE. 3584 3596 CHAPTER I. THE PUBLIC LANDS. ARTICLE I. GENERAL PROVISIONS RESPECTING THE PUBLIC LANDS... 3395 II. SWAMP AND OVERFLOWED, SALT-MARSH, AND TIDE LANDS... 3440 3494 GENERAL PROVISIONS RESPECTING THE PUBLIC LANDS. 3395. Register to keep certain accounts and records. SEC. 3395. The register of the state land-office must keep separate accounts and records in relation to each class of lands to which the state is entitled, which must show: 1. The number of the survey or location, and the date of the approval; 2. The name of the locator, the description of the lands by legal subdivisions, the price per acre at which they are sold, the amount paid, the date of payment, the number and date of the certificate of purchase; 3. The date of the patent, when it has been issued. Surveyor-general is register ex officio: is deputy register: Id. Salary of clerks: Sec. Sec. 350, 497. So also deputy surveyor-general 500. Fees: Sec. 501. 3396. Must keep plats, and note locations thereon. SEC. 3396. He must also keep plats of such lands, upon which all approved locations and surveys must be designated by their numbers. 3397. Must note on plats the issuing of certificates or patents. SEC. 3397. When certificates of purchase or patents are issued, the fact must be noted on the plats. Stats. 1868, 507. Payments, certificates of purchase, and patents: Secs. 3512, post, et seq. 3398. Surveyor-general to be state locating agent. SEC. 3398. The surveyor-general is the general agent of the state for the location in the United States land-offices of the unsold portion of five hundred thousand acres of land granted to the state for school purposes, and the sixteenth and thirty-sixth sections granted for the use of public schools and lands in lieu thereof. Booth act: See act of congress, March 2, 1853, 10 U. S. Stats. 244, for the act reserving to California for school purposes the sixteenth and thirty-sixth sections of each township. The Booth act, passed March 1, 1877, by congress, and entitled "An act relating to indemnity school selections in the state of California," confirms, by its first section, to the state the title to the lands certified to it, known as school selections, which were selected in lieu of sixteenth and thirty-sixth sections lying within Mexican grants, of which grants the 3399-3404. Agents generally. Sections 3399, 3400, 3401, 3402, 3403, and 3404 were repealed by act approved January 19, 1874; Amendments 1873-4, 139. The reMaps, documents, and papers. final survey had not been made at the date of such selection by the state. A state selection made in lieu of a sixteenth or thirty-sixth section is confirmed by the Booth act, when the land in lieu of which the selection was made was, at the time of the selection, within the final survey of a Mexican grant, and when the land selected was at the same time included within the claimed limits of a Mexican grant, although finally excluded therefrom: Martin v. Durand, 63 Cal. 39. See also post, sec. 3409, in note. peal was contained in the first section of said act. There were two other sections, as follows: SEC. 2. The person who has been acting as land agent, under the sections hereby repealed, is hereby ordered and directed to return to the surveyor-general of this state all maps, documents, and papers now in his possession, or under his control, touching the lands of this state, furnished him by the officers of this state or of the United States, at his earliest convenience. SEC. 3. This act shall be in force from and after its passage. 3405. Surveyor-general to keep certain records. SEC. 3405. The surveyor-general must provide the necessary record-book, and cause all lists or patents for lands from the United States to be recorded therein. 3406. Duty of surveyor-general on application for purchase of lands. SEC. 3406. The surveyor-general must, whenever application is made to him for any portion of the lands mentioned in section thirty-three hundred and ninety-eight, communicate with the United States land-office, and ask that the lands described in the application be accepted in part satisfaction of the grant under which it is sought to be located. Sufficient evidence of acceptance: Rush v. Casey, 39 Cal. 339, 344. The selection by the state must be approved before the lands can be sold as lieu lands: Berry v. Cammet, 44 Id. 347, 352; but as to the power of the state to part with what interest it may have before the acceptance, see Oakley v. Stuart, 52 Id. 521, 535. 3407. Copy of United States register's approval. SEC. 3407. When the acceptance of the register of the United States landoffice is obtained, he must give to the party applying a copy of his approval. 3408. Statement by applicant. Section 3408 was repealed by act of April 3, 1876; Amendments 1875-6, 57; took effect from passage. The repealed section is as follows: "SEC. 3408. Where townships have not been subdivided, but township and other lines have been established so as to show that a tract of land is included in any thirty-sixth section, and the party applying for the same makes affidavit that there is no claim to the same other than his own, and that it is not occupied by any settler, the surveyor-general may approve such location without the acceptance of the register of the United States land-office, and the register of the state land-office may issue a certificate of purchase therefor. But no pat ent is issued therefor until the location is appoved by the United States, nor is the state responsible in damages if the land is not subject to location." Under this section the applicant must make the statement required as to no other claim: Vance v. Evans, 52 Cal. 93, and must show that township lines had been established: Rogers v. Shannon, Id. 107. 3409. Surveyor-general to obtain statement as to condition of school sections. SEC. 3409. The surveyor-general must, after the survey of any township by the United States surveyor-general, obtain from the United States land-office a statement, showing whether or not the sixteenth and thirty-sixth sections therein belong to the state. Sixteenth and thirty-sixth sections.Prima facic, the sixteenth and thirty-sixth sections of the public lands belong to the state, by virtue of the grant made by congress to the state: Figg v. Handley, 52 Cal. 244. But the title to such sections does not vest in the state until the plat of the survey is approved by the surveyor-general of the United States: Terry v. Megerle, 24 Id. 610; Middleton v. Low, 30 Id. 596; Finney v. Berger, 50 I. 248; Medley v. Robertson, 55 Id. 396. By the act of congress of March 3, 1853, these sections passed to the state, with the right reserved in the general government of locating the same. As fast as townships are surveyed and sectionized, the state becomes the owner of said sections absolutely: Higgins v. Houghton, 25 Id. 252; Sherman v. Buick, 45 Id. 656; Thompson v. True, 48 Id. C01. The state's title to the sixteenth and thirty-sixth sections is derived from the act referred to: Middleton v. Low, 30 Id. 596. And until these sections have been surveyed under the authority of the United States, the state's property therein does not attach: Id.; Higgins v. Houghton, 25 Id. 252; Finney v. Berger, 50 Id. 248, and cases supra. Under the act of April 4, 1870, Stats. Cal. 1869-70, p. 875, an application to purchase a portion of a thirty-sixth section will be valid, if it appear that at the time it is made the township and other lines have been established so as clearly to show that the land sought to be purchased is included in the thirty-sixth section: Rogers v. Shannon, 52 Cal. 99. But generally an application filed before the approval by the United States surveyor-general of the survey is void: Medley v. Robertson, 55 Id. 396. The state's title is lost to the sixteenth and thirty-sixth sections when they fall within the limits of a Spanish or Mexican grant: Middleton v. Low, 30 Cal. 596. But the mere fact that these sections fall within the limits of a confirmed Mexican grant does not entitle the state to make selection of lieu lands until there has been a final survey of the grant: Rosecrans v. Douglass, 52 Id. 213; C. P. R. R. Co. v. Robinson, 49 Id. 446. The Booth act, passed by congress March 1, 1877, operated to cure many selections made under the supposition that the sixteenth and thirty-sixth sections were lost to the state, which selections other wise would have failed. A recent decision of the supreme court of this state, Martin v. Durand, 63 Id. 39, gives the following clear history of the before referred to congressional legislation: "As is well known, the sixteenth and thirty-sixth sections of land in each town ship in California were granted to the state for school purposes by the act of congress of March 2, 1853, 10 U. S. Stats. 244. By the seventh section of that act indemnity was provided for such sections, or parts thereof, as might be lost to the state by reason of settlement at the time of survey, or because of reservation for public uses, or of being taken by private claims. Experience showed that many of the sections granted by the act of 1853 were situated within the claimed limits of private grants made by the Mexican government. From the nature and number of these grants, and of the proceedings required for their adjudication and the final determination of their boundaries, proceedings to that end in most cases were slow. The state proceeded to make many indemnity selections before it was definitely known whether the lands in lieu of which the selections were made had in fact been lost to the state. 66 These selections were invalid, some for one reason and some for another. Nevertheless, through mistake or inadvertence, they were certified to the state by the land department of the general government; of course disputes in regard to the titles to such lands were natural and frequent. To solve the difficulty, congress interposed and passed the act of March 1, 1877. It is entitled 'An act relating to indemnity school selections in the state of California,' and confirms, by its first section, to the state, the title to the lands certified to it, known as school selections, which were selected in lieu of sixteenth and thirty-sixth sections lying within Mexican grants, of which grants the final survey had not been made at the date of such selection by the state." And as a conclusion from a consideration of this act, the court says: "Clearly such selections as had been made and certified in lieu of sixteenth and thirty-sixth sections, lying within Mexican grants, of which grants the final survey had not been made at the date of the selection by the state, were confirmed, for such is the clear and unequivocal language of the first section of the act of congress. Clearly, also, such selections as had been made and certified to the state, which should fail by reason of the land in lieu of which they were taken not being included within the final survey of a Mexican grant, were confirmed; for such is the clear and unequivocal language of the second section of the act. Equally clear and unequivocal is the language of section 2, in which are confirmed such selections as were made and certified to the state, and which would fail by reason of other defects or invalidities than those previously enumerated. One such invalidity existed in the case under consideration, to wit, the selection of land at the time within the claimed limits of a Mexican grant, but which was finally excluded therefrom. Such defects clearly come within the letter as well as the intent of the statute, which is a curative act, not an indefeasible vested right to select from any particular class of lands. The indefeasible right to any particular lands attaches only at the time of selection: United States v. Mullan, 7 Saw. 466. designed to quiet the possession and confirm the claim of those who in good faith purchased from the state, thinking they thereby got a title, but who in law did not, and which, upon wellsettled principles, should be liberally construed." Application to purchase sixteenth and The right of the state to select lieu lands is thirty-sixth sections: See sec. 3495, post. 3410. Registers and receivers, how compensated for services rendered state. SEC. 3410. The registers and receivers of the United States land-offices must present their accounts for services rendered the state to the surveyor-general, who, if he finds the same correct, according to fees allowed registers and receivers by act of congress, or by the department of the interior, must certify the same to the state board of examiners, who must audit and allow such accounts, and they must be paid out of the general fund. Stats. 1870, 14. State board of examiners: See secs. 654, ante, et seq. 3411. Surveyor-general to represent state in contests relating to lands. SEC. 3411. The surveyor-general must represent the state in all contests between it and the United States in relation to public lands. Contest between state and United States. One claiming under the latter may show that the land for which the state issued its patent was not of the character therein described: Read v. Caruthers, 47 Cal. 181; Kile v. Tubbs, 23 Id. 439; Kernan v. Griffith, 27 Id. 87. That the party who first commences proceeding to secure title to the land has the better right, see Young v. Shinn, 48 Id. 26; Smith v. Athearn, 34 Id. 506; see post, sec. 3414, in note. 3412. Place of taking testimony to be fixed. SEC. 3412. When he desires to take testimony under the provisions of the act of congress to quiet land titles in California, passed July, eighteen hundred and sixty-six, he must request the United States surveyor-general to fix a place convenient of access by the witnesses, and the time for taking such testimony. 3413. May require attorney-general to attend. SEC. 3413. He may require the attorney-general to attend and represent the state at the taking of such testimony; and the traveling expenses of each are a charge against the state. All claims for traveling expenses must be audited and allowed by the board of examiners, and paid out of the general fund. But not more than fifteen hundred dollars must be allowed in any one year for such expenses. 3414. Contest as to approval of surveys, etc., how disposed of. SEC. 3414. When a contest arises concerning the approval of a survey or location before the surveyor-general, or concerning a certificate of purchase or other evidence of title before the register, the officer before whom the contest is made may, when the question involved is as to the survey, or one purely of fact, or whether the land applied for is a part of the swamp or overflowed lands of the state, or whether it is included within a confirmed grant, the lines of which have been run by authority of law, proceed to hear and determine the same; but when, in the judgment of the officer, a question of law is involved, or when either party demands a trial in the courts of the state, he must make an order referring the contest to the district court of the county in which the land is situated, and must enter such order in a record-book in his office. Contesting right to purchase public lands. The purpose of the action provided for by this section is not to annul the certificate of location or purchase, or other evidence of title, but if both of the parties are applicants for the purchase of the lands, the purpose is to procure a determination of the question as to which ap plicant has the better right to purchase them; or if the contest has its origin in a protest filed by a person who is not seeking to purchase the lands from the state, the purpose of the action is to determine whether the party against whom the protest is filed has the right to purchase the lands; and the annulment of the certificate of purchase or other evidence of title is merely a consequence of the determination that the party holding it was not entitled, as against the other party, to effect a purchase of the lands:" Cunningham v. Crowley, 51 Cal. 128, 133. The state is not a necessary party to the proceedings: Id. And the surveyor-general cannot refuse to try the applicant's right to purchase because the contestant does not himself seek to buy: Cadierque v. Duran, 49 Id. 356; Tyler v. Houghton, 25 Id. 26; but see Ramsey v. Flour noy, 58 Id. 260. If a patent has issued for the land in controversy, that puts an end to the contest before the surveyor-general: Somo v. Oliver, 52 Id. 378. The state courts cannot entertain jurisdiction of a contest regarding the rights of adverse claimants to purchase public lands, unless the matter has been first brought before the officers of the land-office: Allen v. Dake, 50 Cal. 80; Keema v. Doherty, 51 Id. 3. The only contests in respect to the right to purchase lands of which the state courts have jurisdiction are those which arise in the surveyor-general's or the register's office: Vance v. Evans, 52 Id. 93. And as a jurisdictional fact, the order referring the contest to a state court for determination must be proffered or averred in the complaint and proved: Berry v. Cammet, 44 Id. 348; Danielwitz v. Temple, 55 Id. 42; Lane v. Pferdner, 56 Id. 122. The jurisdiction of state courts in matters of this kind is statutory: Berry v. Cammet, 44 Id. 348. Questions of practice.-An application to purchase state lands, made in accordance with the law, Johnson v. Squires, 55 Cal. 103; Urton v. Wilson, 1 West Coast Rep. 775, gives the applicant, as against the state, so long as the statute remains in force (see Hutton v. Frisbie, 37 Cal. 490-498), a privilege to purchase the lands applied for; and as against the officers of the state and subsequent applicants, it gives him a right to purchase which can only be lost by his own failure to pursue the subsequent steps prescribed by the statute, and of which he cannot be deprived by the malfeasance or misfeasance of any of the officers: Pollard v. Putnam, 54 Id. 630; Hinckley v. Fowler, 43 Id. 56. The application must intelligibly describe the lands: Miller v. Taylor, 45 Id. 219; and must be verified under statute of April 27, 1863: Cunningham v. Crowley, 51 Id. 128; Hildebrand v. Stewart, 41 Id. 387; but not in the location of schoolland warrants: Wright v. Laugenour, 55 Id. 280. Where two parties have an equal right to acquire public land-as, the one by location and purchase from the state, the other by locating as a homestead under the laws of the United States-the party who first commences his proceedings to acquire the title has the better right: Young v. Shinn, 48 Id. 26; and the validity of defendant's application, it being 3415. Action to determine conflict. prior in time to the plaintiff's, is not effected by irregularity in the issuance of the certificate: Pollard v. Putnam, 54 Id. 630. As between locators of the public land, Qui prior est in tempore, potior est in jure, is the rule: Crandall v. Woods, 8 Id. 136; where there is a dispute as to the right to purchase, each applicant must allege the facts sufficient to show that he is entitled to the issuance of a certificate to him: Wright v. Laugenour, 55 Id. 280; Christman v. Brainard, 51 Id. 534; Ramsey v. Flournoy, 58 Id. 260. The ordinary rules of pleading and of evidence are to be observed, and judgment to be rendered as in ordinary adversary proceedings: Hinckley v. Fowler, 43 Id. 59. An applicant, and one who opposes his application, should not be joined in the answer: Cadierque v. Duran, 49 Id. 356. The statute does not contemplate that the surveyor-general should be a party: Laugenour v. Shanklin, 57 Id. 76. The questions upon which the surveyor-general may decide in such contests are only those involving the survey or "purely a question of fact:" Id.; Hastings v. Jackson, 46 Id. 234. The decisions of the land department upon questions of fact are not subject to review by the courts: Power v. Leith, 53 Id. 711; Dilla v. Bohall, Id. 709; Hess v. Bolinger, 48 Id. 349. The mere failure of the plaintiff to make out a case does not entitle the applicant to a judgment awarding him the right to purchase; he must establish that right affirmatively: Christman v. Brainard, 51 Cal. 534. It is necessary for the defendant in his answer to show that he is entitled to purchase the land in order to give him a standing in court: Ramsey v. Flournoy, 58 Id. 260. And a judgment that neither of the parties is entitled to purchase the land in contest, or any part thereof, is equivalent to a dismissal of the action: Cox v. Jones, 47 Id. 412. In a pre-emption contest before the land department of the United States, a decision in favor of one of the claimants does not vest him with the legal title until the issuing of the patent: Conlan v. Quinby, 51 Id. 412. When an action is brought to try the right of contestants to purchase the land, the plaintiff must allege, and prove by the production of the certified copy of the entry, that the surveyor-general made the order of reference: Lane v. Pferdner, 56 Id. 122, citing Berry v. Cammet, 44 Id. 347. Form of application to purchase in sixteenth and thirty-sixth sections: See post, sec. 3495. Same of swamp-land: Sec. 3443, and note. Mandamus to compel surveyor-general to obey decision of the courts: See infra, sec. 3416, in note. Effect of new constitution on applications: See Urton v. Wilson, 1 West Coast Rep. 775. SEC. 3415. After such order is made, either party may bring an action in the superior court of the county in which the land in question is situated, to determine the conflict, and the production of a certified copy of the entry, made by either the surveyor-general or the register, gives the court full and complete jurisdiction to hear and determine the action. [Amendment, approved April 28, 1880; Amendments 1880, 108 (Ban. ed. 543); took effect immediately.] See note to preceding section. |