Boggs v. Ganeard

This proceeding, involving the question as to the right of defendant to purchase from the state, as swamp and overflowed land, a tract of land containing 159.98 acres, was instituted in the superior court of San Joaquin County, under an order of reference made by the surveyor-general under the provisions of section 3443 of the Political Code, relative to the purchase of swamp and overflowed land, as amended March 2, 1903. Judgment was given decreeing that defendant was not entitled to purchase the land and canceling his certificate of purchase. Defendant appeals from said judgment and from an order denying his motion to vacate the same and enter judgment for him upon the findings, made under sections 663 and 663% of the Code of Civil Procedure. The appeals come before us on the judgment-roll and a bill of exceptions showing the proceedings on the motion to vacate the judgment.

The question presented is as to whether the facts shown by the pleadings and findings are sufficient to support the judgment. The land in question was segregated as swamp and overflowed land by authority of the United States, prior to December, 1879. No application for the purchase thereof other than that of defendant, has ever been made, plaintiffs not having applied to purchase the same, and not now seeking to purchase. Defendant’s application was made on September 21, 1901. Defendant was not an actual settler on the land,

According to the findings of the court, all the allegations in plaintiffs’ affidavit as to their use of the land, and the condition at the time of defendant’s application are true, and the

Disregarding for the moment all questions as to procedure, and the right of persons not in privity with the state to question the right of defendant to purchase, we are satisfied that it must be held, upon the record before us, that the land was at the date of defendant’s application, “suitable for cultivation,” within the meaning of those words as used in section 3 of article XVII of our constitution, and that by reason of that fact, any sale of the land to defendant was forbidden, he not being an actual settler thereon. It is provided in that section that “lands belonging to this state, which are suitable for cultivation, shall be granted only to actual settlors.” That this land was in fact suitable for cultivation at the time of such application cannot be disputed under the findings of the court. Defendant’s claim that it was not such within the meaning of the constitutional provision is based upon the fact that it was originally unfit for cultivation, and has been reclaimed and made suitable for cultivation not by natural causes, but by the hand of man, the findings showing that it was so changed “by means of ditches, embankments, and levees,” constructed and maintained by plaintiffs and their grantors. If the doctrine of Fulton v. Brannan, 88 Cal. 454 , [ 26 Pac. 506 ], is to be adhered to in the future as it has been ever since that decision was rendered, it would appear to be immaterial how the land was made suitable for cultivation. That case certainly determined that neither the condition of the land designated as swamp and overflowed at the time of its cession to the state, nor its condition at the time of the adoption of the constitutional provision, as to suitability for cultivation, was controlling. The land there involved was covered with water until several years after the adoption of the constitutional provision,

The constitution thus speaking with reference to the condition at the time of application, it must follow that it is absolutely immaterial how land in fact suitable for cultivation at that time, became so. The constitution includes all lands in its classification into two classes only. All land not suitable for cultivation is in one class, and all land suitable for cultivation in the other. With reference to the question of granting to actual settlers only, there is no subclassification of the latter class authorized by the constitution, and neither the legislature nor the courts can make such a classification of lands in fact suitable for cultivation, based upon the manner in which they became suitable. (See Fulton v. Brannan, 88 Cal. 456 , [ 26 Pac. 506 ]; Albert v. Hobler, 111 Cal. 398 , 400, [ 43 Pac. 1104 ].) The constitutional prohibition is applicable to all lands suitable for cultivation at the time of application, —i. e. to all lands which, at such time, are ready for occupation, and which, by ordinary farming processes, are fit for agricultural purposes. (Manley v. Cunningham, 72 Cal. 236 , 241, [ 13 Pac. 622 ].) The question discussed in Fulton v. Brannan, 88 Cal. 456 , [ 26 Pac. 506 ], as to what lands not reclaimed at the time of the application may be considered

This land falling within the class specified in the constitutional provision quoted above, at the time of defendant’s application to purchase, its sale to him was at such time prohibited, he not being an actual settler thereon. It would appear to follow that he acquired no enforceable right to the land by reason of his application, payment, and certificate of purchase, all made at a time when the law absolutely prohibited the sale to any except an actual settler. There is nothing in the law that gives such effect to the ex parte approval by the surveyor-general of an application to purchase swamp and overflowed land, the subsequent execution of the certificate of purchase, which is at most simply evidence of a contract to convey, and payment of the purchase price, as would preclude a subsequent inquiry as to the right of the applicant to purchase. Payment for the land and a certificate of purchase based upon valid proceedings taken in that behalf undoubtedly confer rights upon the applicant which cannot afterward be impaired by the state, and this is the whole effect of the decisions to the effect of certificate and payment, relied upon by defendant. One qualified to purchase certain land under the law existing at the time of his application, complies with all the requirements of the law, pays for the land and receives his certificate. He thereby becomes entitled to a patent, and no subsequent constitutional or statutory enactment will be effectual to deprive him of the acquired right. As to him. the state is simply a trustee of the legal title. But a,ny question as to the validity of the proceedings upon which the applicant bases his claim, may be raised and determined in any authorized proceeding at any time prior to the issuance of patent. The applicant has no such vested right as forbids such inquiry. His claim to an enforcement of the contract must be based entirely upon the theory that his proceedings were valid, that he was at the time of application qualified to purchase the land and that he complied with the then existing law relative to purchase, and his certificate of purchase is at most only

The decisions of this court in which the proceedings taken by the holder of the certificate of purchase have been held ineffectual to confer any right, either because the applicant was not qualified to purchase, or because he had not complied with the law relative to such applications, are so numerous, and the rule applicable is so well settled, that it is unnecessary to cite authorities. In at least three cases it has been expressly held, overruling a contrary contention, that the certificate of purchase does not bar an inquiry into the rights of the purchaser. (Gilson v. Robinson, 68 Cal. 539 , 542, [ 10 Pac. 193 ]; Jacobs v. Walker, 76 Cal. 175 , [ 18 Pac. 129 ]; Taylor v. Weston, 77 Cal. 534 , 541, [ 20 Pac. 62 ].) It is true that the cases were generally contests as to the right to purchase initiated under statutory provisions authorizing the same, by persons who had also made application and were also seeking to purchase, but they all recognize the fact to be that neither certificate nor payment forecloses inquiry into the validity of the proceedings upon which the applicant bases his claim to a conveyance, and that his claim must fail, as absolutely void, whenever properly questioned, and it is shown that he was not entitled to purchase. In some of such contests, judgment was denied to the holder of the certificate, although the one claiming as against him the right to purchase was also adjudged to be not entitled. Goldberg v. Thompson, 96 Cal. 117 , [ 30 Pac. 1019 ], is such a case. The court there adjudged that neither party was entitled to purchase certain swamp and overflowed land, although Thompson held the certificate of purchase, upon the ground that the land had become suitable for cultivation prior to application, and neither party was an actual settler thereon, and this, although the finding of the court as to suitability for cultivation was outside the issues made by the pleadings. The court there said: “If land is of the class which can be sold only to residents, and neither contestant is a settler, the court cannot ignore the character

In view of our conclusions upon the questions already discussed, the remaining questions which must here be determined are easy of solution. They relate principally to the proposition as to whether or not the amendment of March 2, 1903, (Stats. 1903, p. 67, c. 61), to section 3443 of the Political Code, providing for contests and their reference for adjudication to the superior court, can be held to apply in cases where the application to purchase was made and certificate issued prior to its adoption, as was the situation here. By its terms it was expressly made to apply to all cases, regardless of the time of application, and the claim here is that giving it the intended effect would render it violative of the constitutional provisions prohibiting the passage of any law impairing the obligation of a contract. Coneededly, the contest here was within the terms of the amendment. Substantially, the amendment provides as follows: Any false statement in the affidavit of the applicant defeats his right to purchase. At any time prior to the issuance of patent, upon it being made to appear to the surveyor-general by the affidavit of any settler or person occupying the land for farming purposes, that he, or those under whom he claims, have been in the possession and occupancy of such land, or any part thereof, for farming purposes, for over ten years next preceding the application of the other party, their occupancy being open and notorious, and evidenced by actual inclosure or ditches, monuments, embank

Under the law as it was at the time of his application, defendant’s right to purchase this land was subject to question at any time prior to the issuance of patent. . We have already seen that any other person, by simply presenting an application for purchase and demanding a trial in the superior court, could have initiated a contest wherein the application of defendant would have been declared void by the court, although the contestant himself might also have been ' held not entitled to purchase. Doubtless, the state might at any time have maintained an action for the same purpose. The amendment in this respect does no more than to authorize the same inquiry as to the validity of the proceedings to be made at the instance of and by private persons who have not sought to purchase the land. Such a proceeding, although maintained by private parties, is really for the benefit of the state, being in furtherance of and for the enforcement of its declared policy that lands suitable for cultivation should be granted only to actual settlers, and the party maintaining the same is, in effect, but the agent of the state, performing a duty allotted to him by the laws of the state. The adoption of this additional method of ascertaining as to the validity of defendant’s claim, in no way affected any right guaranteed him by the constitutional provision invoked. He had no right to purchase this land if it was suitable for cultivation at the time of his application and he was not then .an actual settler thereon. He had no vested right as to the precise mode and manner of inquiry concerning its suitability for cultivation, as long as he was given an opportunity, upon proper notice and before a competent tribunal, to answer any attack made upon his claim in this respect, as fully' and effectually as he could have done under the laws in force at the time of his application. A change in the law to this extent affects only the remedy, and disturbs or impairs no existing legal right. The cases

We are of the opinion that there is nothing in the contention that the amendatory act violates the provision of our constitution relative to special laws regulating the practice of courts of justice. The right of the legislature to provide a special proceeding in the courts for the determination of questions as to the validity of proceedings for the purchase of its public lands, and to make different provisions for the various classes of such lands, has long been recognized, and cannot be doubted. The nature of the subject is such as to justify such provision. (See Deyoe v.

It is unnecessary to discuss any of the other questions presented. It being determined that the amendment to section 3443 of the Political Code is a valid law, and, so far as it authorizes judicial inquiry and final determination, at the instance of a settler or occupant of the land for farming purposes, as to its suitability for cultivation at the time of the application, and the applicant’s qualifications to purchase the same, applicable in cases where the' application was made prior to its enactment, it follows that the .superior court had jurisdiction of the proceeding, and that the findings support the judgment.

As to the validity of the provisions of the amendment regarding any false statement in the affidavit of the applicant, as applied to applications made and certificates issued prior to their enactment, we express no opinion.

The judgment and order appealed from are affirmed

Shaw, J., and Sloss, J., concurred.

Hearing in Bank denied.