Megerle v. Ashe

By the Court:

When this case was here on the former appeal, there was no evidence of the time of the return of the plat of the survey of the township, except an entry on the margin of the plat— “ Filed December 5th, 1855, Marysville Land Office.” On the last trial in the District Court, a stipulation was offered in evidence to the effect, that on the 4th day of December, 1855, the Surveyor-General transmitted the plat to the Register at Marysville; that it was received by him on the next day, and by a letter of that date, addressed to the Chief Clerk in the Surveyor-General’s office; he acknowledged the receipt of it. A further stipulation was introduced, to the effect that the officers of the land office published a notice in a newspaper in Marysville, notifying those who claimed pre-emption rights to file their declaratory statements on or before the 15th day of May, 1856. In this stipulation the defendants reserved the right to object to the admissi- / bility of the notice and its publication; and when it was offered in evidence they objected to its admission, but the objection was overruled. The jury found that the plat of the survey of the township was filed February 15th, 1856. The evidence was insufficient to sustain the verdict on that issue, The evidence as to the publication of the notice was not admissible, and when admitted, was not sufficient to overcome the effect of the stipulation as to the time when the plat was received by the Register.

The plaintiff’s declaratory statement recited, that on the 13th day of October, 1850, he settled upon and improved the land in controversy, and concluded as follows: “ And I do hereby declare my intention to claim the said tract of land as a pre-emption right, under the provisions of said Act of 3d day of March, 1853.” On the former appeal this declaratory statement was regarded as intended to be, and as in fact, made and filed under the provisions of the Act of Congress of March 3d, 1853; and it was decided (33 Cal. 75) that the declaratory statement, having been filed on the 16th day of April, 1856, and more than three months after the township plat was returned to the Land Office at Marysville, was not filed within the time prescribed by the Act of March 3d, 1853, and, therefore, did not secure his right of pre-emption.

The decision of that point, became the law of the case, and was binding on the Court below on the new trial. The effect of the decision could be avoided only by showing, that the declaratory statement had been filed within three months after the township plat was returned to the land office. This was not done, but on the contrary the evidence shows that the township plat was returned on the 5th day of December, 1865—more than three months before the declaratory statement was filed.

Judgment reversed, as of December 10th, 1872, and cause remanded for a new trial.

Mr. Chief Justice Wallace, being disqualified, did not sit in the case.