Buhne v. Chism

By the Court, Crockett, J.:

The action is ejectment, to recover from the light-house keepers the possession of the light-house erected by the United States at Cape Mendocino, together with the tract of land on which it stands. ■ A judgment having been entered for the defendants, the plaintiff appeals on the judgment-roll) claiming that, on the findings of fact, the plaintiff is entitled to recover.

The plaintiff claims under a patent from the State of California, founded on an alleged selection by this State of the land in controversy, as a portion of the seventy-two sections donated to the State by the Act of Congress of March 3, 1853, for the use of a seminary of learning. (10 Statutes at Large, 248.)

Section twelve of the Act provides for the selection of the land “ by the Governor of the State, or any person he may designate for that purpose, in legal sub-divisions of not less than a quarter-section of any of the unsold, unoccupied and unappropriated public lands therein, subject to the approval of the Secretary of the Interior, and to be disposed of as thfe Legislature shall direct.”

On the 23d of April, 1858, the Legislature passed an Act providing for the selection and sale of these lands (Statutes 1858* p. 248); and the plaintiff claims that the provisions of the Act were complied with in the selection of this land. It appears from the findings that in June, 1860, one Broderson applied to the State Locating Agent for that district to purchase this tract; that the agent accepted the offer on condition that the location should “be made and approved by the United States;” that the Locating Agent applied to the United States Register and Receiver for that district for the land on behalf of the State, under the Act of March 3, 1853; that the Register and Receiver entertained the application, and approved the location; that the State Surveyor-General also approved the location, and thereupon the Governor issued a patent to Broderson in the usual form. The plaintiff holds this title. It does not appear from the findings that the Secretary of the Interior ever approved the selection and location; on the contrary, it appears that in June, 1866, and May, 1867, the land in controversy was reserved for light-house purposes, by order of the President.

We think the approval of the Secretary of the Interior was essential to a valid selection and location by the State; and that it was incumbent on the plaintiff to show affirmatively that he had approved it. The Act of March 3,1853, provides in terms that the selection shall be subject to his approval, and we have no authority to dispense with it. This condition was doubtless inserted for the reason that, in the opinion of the highest officer of the Land Department, the land might be required in the future for public uses; and it was intended that he should exercise his judgment in the premises before the selection should be valid. But, however this may be, the statute is imperative that the selection shall be “subject” to his approval, and it is not showm that he has ever approved it, or, indeed, that he had any knowledge of the selection until after the land was reserved by the President.

But the plaintiff contends that whatever defects, if any, existed in his title, were cured by the Act of Congress of July 23,1866, to quiet land titles in California. (14 Statutes at Large, 218.) But it does not appear from the findings (which include all the facts in issue) that this land has ever been' likted or certified Over to tlie State by the Commissioner of the General Land Office; and in Hodapp v. Sharp, 40 Cal. 69, we held that unden the Act of July 23; 1866, the title does not vest in- the State until this is done.

The plaintiff in ejectment can recover only" on the legal title; and oh our construction, of the Act of 1866, he does' not acquire this under that Act until the lands are listed oVer to the State by the Commissioner. We are not, however, to be understood" as- intimating an- opinion that the" plaintiff would or would* not have* been entitled to* recover, if this fact; had beeh shown. In the view wb take of the-case, it is unnecessary to decide that point, or the other questions discussed by counsel.

Judgment and order affirmed. - Remittitur forthwith.