The complaint shows affirmatively that appellant is not entitled to purchase the land in dispute.
It shows that plaintiff is one of that class of applicants whose rights are limited and defined in the act of April 4, 1870, supplementary to the act of March 28, 1868.
It shows, further, that the plats of said land were filed in the proper land office December 20, 1872, and that the application of plaintiff to purchase said land was filed with the county surveyor April 29, 1873--more than ninety days after the filing of said plats.
The act of April 4, 1870, being upon the same subjectmatter as the act of March 24, 1868, by a well-settled rule of statutory construction, is to be read as a partof that act, boing in pari materia. (People v. Broadway Wharf Co. , 31 Cal. 33.)
OPINION By the Court:
In an action to determine a contest arising in the Surveyor-General's or Register's office, in respect to the right to purchase lands from the State, the defendant is not entitled to judgment to the effect that he has the right to purchase the lands from the State on the ground that the plaintiff has failed to make out his case. Nor is he entitled to such judgment unless he states in his answer facts, which, together with those stated in the complaint, show that he has the right to make such purchase. (Woods v. Sawtelle , 46 Cal. 389.) The answer in this case fails to state the requisite facts. Instead of relying on the certificate of purchase, as the defendant seems to have done, he should have stated the facts which authorized the certificate to issue to him.
It is alleged in the complaint, and not denied in the answer, that the plaintiff has been in the occupation of the lands since May, 1869. The defendant, therefore, was not authorized by the act of March 28, 1868 (Stats. 1867-8, p. 514), to purchase the lands as swamp and overflowed lands.
The act of April 4, 1870 (Stats. 1869-70, p. 878), is not to be construed as prohibiting a settler upon swamp or overflowed land from making an application to purchase the lands after the expiration of the ninety days mentioned in the second section of that act. The application to purchase, though made after that time, will be sufficient if it be in fact prior to any other valid application.
Judgment and order reversed, and cause remanded for a new trial.