Layton v. Farrell , 11 Nev. 451 ( 1876 )

By tlie Court,,

Hawley, C. J.:

The decision in this case involves a construction of the seventh section of the enabling act. (Stat. 1864-5, 37, sec. 7.)

When does the title vest in the state to the sixteenth and thirty-sixth sections granted by said act? This identical question was presented to the court in the case of Heydenfeldt v. Daney, G. S. & M. Co. (10 Nev. 290), and all the authorities bearing upon the subject were then carefully examined; but the decision finally turned upon other grounds, and the question was, by a majority of the court, left undecided.

Upon a review of the authorities we have arrived at the conclusion that the enabling act must be construed as a grant to the state in prcesenti, in the nature of a float, taking effect'upon specific tracts of land as soon as the same are surveyed by the United States, and not before. When the enabling act was passed, the 'land was not surveyed, and until the survey was made the title of the state did not attach to any specific tracts of land. When the survey was made the location of the land became certain, and at that time ‘ ‘ the title, which was previously imperfect, acquired precision and became attached to the land.” (Schulenberg v. Harriman, 21 Wall. 60.) If bona fide settlements were made upon the sixteenth or thirty-sixth sections by preemptioners, prior to tbe survey of the lands, then the title would not pass to the state, because they were otherwise disposed of, but other lands equivalent thereto were granted to the state in lieu thereof.

There is some conflict in the decisions of the courts upon this subject, but the conclusions we have reached are in accord with the whole current of decisions of the United States land-office (Keystone Case, Copp’s U. S. Mining Decisions, 109), and are sustained by the following authorities: Wall v. Blasdel, 4 Nev. 246; Terry v. Megerle, 24 Cal. 609; Grogan v. Knight, 27 Id. 515; Middleton v. Low, 30 Id. 597; Toland v. Mandel, 38 Id. 31; Railroad Co. Fremont County, 9 Wall. 89; and other cases cited in appellant’s brief.

It clearly appears from ilie undisputed and admitted facts contained in the record that appellant is entitled to the larid in controversy, unless the legal title passed from the government of the United States to this state at the date of the enabling act.

It is therefore ordered that the judgment of the district court be and the same is hereby reversed, and the court is directed to enter a judgment in favor of appellant.