Mace v. Merrill

A. T. Britton, A. B. Browne, and Walter H. Smith, for plaintiff in error, E. B. Merrill, for defendant in error. This is a suit begun by Mace, the plaintiff in error, against Merrill, the defendant in error, in the district court of Los Angeles county, California, pursuant to a reference by the surveyor general of the state, under section 3414 of the Political Code of that state, which is as follows: 'When a contest arises concerning the approval of a survey or location before the surveyor general, or concerning a certificate of purchase or other evidence of title before the register, the officer before whom the contest is made may, when the question involved is as to the survey, or one purely of fact, or whether the land applied for is a part of the swamp or overflowed lands of the state, or whether it is included within a confirmed grant, the lines of which have been run by authority of law, proceed to hear and determine the same; but when, in the judgment of the officer, a question of law is involved, or when either party demands a trial in the courts of the state, he must make an order referring the contest to the district court of the county in which the land is situated, and must enter such order in a record-book in his office.' The record shows that the S. E. 1/4 of section 21, township 2 S., range 13 W., S. B. M., was listed to the state of California by the secretary of the interior on the twenty-first of March, 1876, as part of the 500,000 acres of land selected by the state under section 8 of the act of congress approved September 24, 1841, (5 St. 455, c. 16,) for the purpose of internal improvements. On the seventeenth of November, 1874, Mace applied to the surveyor general of the state for the purchase of this tract. His application was on file when the land was listed. Merrill, the defendant in error, also claimed the same tract from the surveyor general. His claim was based on an alleged location of the tract under the laws of California, and a payment therefor to the state in school-warrants on the twenty-third of June, 1857. Such being the case, he insisted that the title of the state inured to his benefit, under the provisions of sections 1 and 3 of the act of July 23, 1866, (14 St. 218, c. 219,) 'to quiet land titles in California.' Mace set up no title in himself under any statute or authority of the United States. His application was to the state, and he claimed under state authority only. It is true that, if the state had the right to sell he might have the right to buy; but that right to buy would come, not from the United States, but from the state. The court below decided that the state could not sell, because it had already sold to Merrill, and that all the title it had was held in trust for him.