JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
NORTON, Judge
On application by appellants for a modification of the opinion, Norton, J. delivered the opinion of the Court. Field, C. J. concurring.
We are asked to modify our opinion in this case so far as it " confers or may be construed to confer on the Court below any power or authority to ascertain or settle, for the purposes of this partition, the boundaries or extent of the San Lorenzo Rancho."
No modification of the opinion is necessary. The situation of lands in this State is rendered peculiar by the necessity of having patents issued by the United States for all tracts held by private owners and the uncertainty that must in the meantime exist as to the exact boundaries as they may be ultimately fixed in the patent. If any objection to the making of a partition exists in any case on this account, it should be presented in the answer and the necessary facts set forth, whereupon the Court could determine the necessity and its authority to dismiss the complaint or to stay proceedings until the boundaries should be settled by the proceedings instituted to obtain the patent. In the present case, this objection was not raised to proceeding in the action, and the fact that there were any proceedings pending for a patent only appears incidentally. After this case is returned to the Court below, either party will have an opportunity to apply to that Court for leave to amend the pleadings, or by a petition to present the necessary facts to show the propriety of a stay of proceedings, and if granted, then upon the boundaries becoming fixed by the proceedings before the United States tribunals, to bring the proper facts into the case by amendment or supplementary pleadings.
The application to modify the opinion is, therefore, denied.