People of the State of California ex rel. Hastings v. Jackson

John N. Pomeroy, for plaintiff in error.

M. A. Wheaton, for defendants in error.

This was a suit brought by the state of California at the instance of S.C.. Hastings to set aside a patent of the state granting the S. 1/2 of section 14, township 5 N., range 1 W., to A. P. Jackson. The lands are part of the 500,000 acres which went to California on its admission into the Union, September 9, 1850, (9 St. 452, c. 50,) under the provisions of the act of September 1, 1841,c. 16, § 8, (5 St. 455.) By that act the lands granted were to be selected by the state in such manner as the legislature thereof should direct, and by the constitution of California (article 9, § 2) they were devoted to the support of schools. The legislature of California, by an act passed May 3, 1852, c. 4, (Acts Cal. 1852, 41,) authorized the governor to issue land warrants to the amount of 500,000 acres in all and deposit them with the treasurer of state. These warrants were to be sold by the treasurer at two dollars per acre, and the interest of the proceeds was set apart 'as a permanent fund for the support of schools.' The purchasers were authorized to locate their warrants in behalf of the state 'upon any vacant and unappropriated lands belonging to the United States within the state of California subject to such location.' Provision was then made for the issue of patents to locators by the state as soon as the lands were surveyed.

The material averments in the complaint filed by the state are that one Isaac Thomas located a school-warrant on the lands in question on the twentieth of June, 1853; that as the government surveys had not then been made, the lines of the location were run by the county surveyor, and a correct entry thereof made in the office of the county clerk; that the government surveys were completed and plats thereof filed in the general land-office on the first of October, 1853; that on the twenty-fourth of December, 1853, Thomas presented his location to the register of the United States land district in which the lands were situated; that the register accepted and approved the location; that afterwards Thomas filed with the register the warrant under which his location was made; that the register wrote the word 'surrendered' across the face of the warrant, and gave to Thomas a certificate setting forth these facts; that Hastings has been duly invested with all the rights of Thomas under his location; that on the fourteenth of February, 1857, Jackson, one of the defendants, with full knowledge of all that had been done by Thomas, located other warrants on the same land, and, on the eighteenth of March, 1863, procured a certificate to that effect from the land-office of the United States, under which a patent was issued to him by the state; that the lands were 'listed' to the state by the United States on the tenth of February, 1870; and that on the eighth of September, 1871, the commissioner of the general land-office canceled the location of Jackson, and returned to him the warrants which had been used in making that location.

The prayer was 'that the said defendants be decreed to deliver up the said patent to be canceled, and that they and each of them, and every person claiming by, through, or under them, or either of them, be perpetually enjoined and restrained from setting up any claim or title to the said premises under and by virtue of said alleged patent,' and for general relief.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, in this: 'The performance of the acts stated in the complaint did not make valid selection of the premises mentioned in the complaint under said school-land warrant No. 133. No valid location of said warrant is shown, nor any valid selections of land under it. The allegations in the complaint as to the effect of the pretended locations, and the rights of I. Thomas and S.C.. Hastings, are mere conclusions of law, and not allegations of facts. The complaint shows upon its face that this action is barred by the statute of limitations of this state. The facts stated show that defendant Jackson was entitled to the patent when it was issued to him.' The court of original jurisdiction sustained the demurrer and dismissed the complaint; and that judgment was affirmed by the supreme court of the state on appeal. This writ of error was brought to reverse the judgment of the supreme court.

[Argument of Counsel from page 235 intentionally omitted]

WAITE, C. J.