By the act of 1866, from and after 1869, when the land was surveyed in the field, plaintiff being in possession and claiming under his purchase (Hodapp v. Sharp , 40 Cal. 69, and Foscalina v. Doyle , 47 Cal. 437) from the State, was, by the act, given the rights of a settler upon unsurveyed land, and protected in such possession until he should have opportunity to present and prove up his claim under the act, and have the same adjudicated, viz., either approved or rejected by the proper officers.
The invasion of plaintiff's possession by defendants in Octoberor November, 1870, and filing of declaratory statements June 29, 1871, was during a period while plaintiff's possession was legalized by the act, and during a period given him for the presentation and adjudication of his claim. The land was not subject to pre-emption during this period; the defendants were not bona fide pre-emptors, but were, and are, bare trespassers and intruders. The claim of plaintiff having been regularly presented, investigated and approved, and the land certified over to the State, pursuant to the requirements of the act of 1866, and by the State patented to the plaintiff, he has the title.
JUDGES: Rhodes, J. Mr. Justice Crockett did not express an opinion.
OPINION
RHODES, Judge
The selection and sale of the land by the State, in 1863, was void, for the reason, among others, that the lands were then unsurveyed. The plaintiff, therefore, relies for title mainly upon proceedings had under the act of Congress of July 23, 1866, to quiet land titles in California. (14 U.S. Stats. at Large, 218.) He made application under the third section of the act, on the 10th day of July, 1871, and the application was approved and the land was certified over to the State, November 15, 1871. The lands were within the exterior limits of the Rancho Los Pocitas, the claim to which had been confirmed, and the rancho surveyed before the passage of the act of July 23, 1866; but by the survey of the rancho, which was finally confirmed June 6, 1871, the lands in controversy were excluded. The question arising upon these facts is, whether the act of July 23, 1866, confirms selections made by the State, of lands which at the passage of the act were claimed under a valid Mexican grant, but which were afterwards excluded from the rancho by the finally confirmed survey. A discussion of the question at this time is, for obvious reasons, unnecessary, and we shall only announce the conclusion to which we have arrived, upon a construction of the provisions of the act of Congress, which is, that the act does not confirm such State selections; that is to say, that the purchaser of such lands from the State is not authorized by the act to " present and prove up his purchase and claim" to the lands.
From this construction of the act of Congress, it results that the certifying and listing of the lands to the State was unauthorized and void, and that therefore the patent issued by the State did not convey to the plaintiff the title to the lands. (See Act of Congress of Aug. 3, 1854, 10 U.S. Stat. at Large.)
The plaintiff cannot maintain his action upon prior possession alone, for the lands were public lands of the United States (if not properly listed over to the State), and the defendants, as qualified pre-emptors, were authorized by law to enter upon and hold the possession of the lands as against the plaintiff.
Judgment reversed and cause remanded, with directions to enter judgment for the defendants for their costs.