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JAMES B. DAMRELL, Respondent, v. HENRICH MEYER, Appellant

         JUDGES: Rhodes, C. J., delivered the opinion of the Court, Crockett, J., Temple, J., and Wallace, J., concurring. Sprague, J., expressed no opinion.

         OPINION

          RHODES, Judge

         The cross-complaint of the defendant does not state facts sufficient to constitute a cause of action. The defendant having settled on the land adjoining the land in controversy, and claiming and cultivating the land in controversy, as he alleges, in 1850, and the township plat having been filed in the local Land Office in July, 1858, it became his duty, if he desired to avail himself of the preemption laws authorizing a settlement on unsurveyed land, to file his declaratory statement within three months after the filing of the township plat. (Megerle v. Ashe, 33 Cal., 74, and see decision of the Commissioner of the General Land Office, February 21, 1868.) There is no pretense, that the plaintiff prevented the defendant from filing his declaratory statement at that time, nor after the land was relieved from the suspension in November, 1861--even if his filing after that time would have been of any avail to him. No law has been called to our attention, which will enable a person, who has neither filed his declaratory statement, nor been prevented from so doing by the fraud of another person, to avail himself of the benefits of any entry made by such other person, and a patent issued in pursuance thereof.

         It is very clear, that an agreement between two persons, by which it is stipulated that if either shall succeed in establishing a pre-emption claim to a tract of land, he shall divide the land with the other, will not be enforced; for it is in direct contravention of the express provision of the Pre-emption Act.

         Judgment affirmed.

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Damrell v. Meyer
(Oct 1, 1870)