JUDGES: In Bank. Beatty, C. J. De Haven, J., Garoutte, J., McFarland, J., Paterson, J., and Sharpstein, J., concurred.
OPINION
BEATTY, Judge
[30 P. 1020] This is a contest over the right to purchase state land, referred by the surveyor-general to the courts for determination. (Pol. Code, sec. 3414.) The superior court decided that neither party had a right to purchase, and plaintiff appeals from the judgment, contending that it is not supported by the pleadings and findings. The land in controversy was "swamp and overflowed" on September 28, 1850, and as such passed to the state under the congressional grant of that date. Subsequently, and prior to plaintiff's application to purchase, it became, by the operation of natural and other causes, dry and fit for cultivation, but plaintiff has never been a resident or settler upon it. These facts bring the case within the decision in Fulton v. Brannan , 88 Cal. 454, and McNee v. Lynch , 88 Cal. 519, in which it was held that sections 2 and 3 of article 17 of the constitution apply to lands of this class which have become fit for cultivation before application to purchase, and forbid their sale to any but actual settlers. Appellant contends that the findings of the superior court as to fitness for cultivation and want of settlement, being outside the issues made by the pleadings, must be disregarded. But the rule invoked has no application to this class of cases, in which each party is an actor, and must allege and prove a complete case in order to prevail. If land is of the class which can be sold only to residents, and neither contestant is a settler, the court cannot ignore the character of the land and the question of residence because it is convenient to the parties to do so. On the contrary, it must decide against both if neither is entitled to purchase. (Garfield v. Wilson , 74 Cal. 178, and cases there cited.)
The judgment is affirmed.