McLaughlin v. Heid , 1883 Cal. LEXIS 409 ( 1883 )

The facts sufficiently appear in the opinion of the court.

Per Curiam.

This was an action of ejectment in which judgment was rendered for plaintiff. This appeal is prosecuted by defendant.

The plaintiff claimed under a patent of the United States purporting on its face to have been issued under a grant of land made to the Central Pacific Railroad Company, and the Western Pacific Railroad Company, by acts of Congress passed in the years 1862 and 1864. This patent was offered in evidence, together with other evidence, and to both patent and the evidence referred to, various objections were made by defendant. These objections were overruled by the court, and exceptions were reserved by defendant to its rulings, as to which we consider it only necessary to say that we find no error in the rulings excepted to-.

To defeat the recovery by plaintiff defendant offered to show that at the time of the grant by Congress under which the patent to plaintiff’s grantor purports to have been issued, the land in controversy was included within the exterior limits of a tract of land claimed as a Mexican grant, and known as “Moquelamos,” which was reserved from the grant to the railroads mentioned; that afterwards, on the 5th of December, 1876, he (defendant) was a qualified pre-emptor, and as such entered on the land in dispute for the purpose of acquiring the title thereto under the pre-emption laws of the United States, and has improved the land and continued to reside thereon ever since; that at the time of his settlement the land was and ever since has been surveyed agricultural land of the United States, and subject to pre-emptian; that on the 1st day of February, 1877, he (defendant) prepared and offered to file in the land office of the proper district his declaratory statement in due form of law, of his claim to the land, and that the register of the land office, without right refused to permit him to do so, from which decision of the register he appealed, and his appeal is still pending and undetermined before the commissioner of the general land office at Washington. This offer was excluded by the court, and defendant reserved an exception to the ruling.

This was held to be error in Carr v. Quigley, 57 Cal. 395, which cause was decided by Department One, and on petition for rehearing was approved by the court in Bank. On the authority of that case the judgment and order are reversed and cause remanded for a new trial.