The selection, being for unsurveyed land, was void. (Grogan v. Knight , 27 Cal. 515.) But it is insisted that by virtue of the Act of Congress of July 23rd, 1866, the title of the State is confirmed. But the State law in force in 1861 did not permit the selection of less than one hundred and sixty acres. (Sec. 4, Stats. 1861, p. 219.) The land selected was reduced to forty acres, and the Act of Congress did not confirm the title to the forty.
The Act of July23rd, 1866, did not help this selection in whole or in part.
The proviso to the first section of the act limits its confirmatory scope; and this selection was within that proviso, and was, therefore, not confirmed, for the reason that the larger portion of the selection was granted to the railroad company before the date of the acts, and another portion was covered by pre-emption claims; hence there was no confirmation of the selection.
This township was surveyed in 1865 by the United States, and under the Act of 1866, supra, it was the duty of the State officers to take action in the premises. (See second section of Act of July 23rd, 1866.) This was never done.
OPINION The Court:
If the land in controversy was properly listed over to the State by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, the plaintiff is entitled to a recovery. The selection made in 1861 was made in accordance with the laws of the State then in force, and the Register of the proper Land Office was, in the same year, notified of such selection; and these acts brought the case within the first and second sections of the Act of Congress of July 23rd, 1866, to quiet land titles in California, unless the fact that the amount of land included in the selection was reduced below one hundred and sixty acres by reason of the grant of land to the Western Pacific Railroad, and by the allotment of certain other portions of the lands to pre-emption claimants before the passage of the act of Congress prevented the act from having any operation upon the remaining portion of the lands included in the selection--the forty acres in controversy in this case. We are of the opinion that the act confirmed to the State the forty acres in controversy, and that the lands were properly listed over to the State.
Judgment reversed and cause remanded, with directions to render judgment on the findings for the plaintiff.