Summary
In Millidge v. Hyde it was held that the demurrer to the complaint was properly sustained for the reason that plaintiff's application failed to state, as required by the statute, that "There is no valid claim to such land other than that of the applicant; that he has not entered any land in part satisfaction of the unsold portion of the 500,000 acre grant, or of the grant in lieu of the sixteenth or thirty-sixth sections, which together with that now sought to be purchased exceeds 320 acres."
Summary of this case from Barbree v. KingsburyOpinion
Department One
Appeal from a judgment of the Superior Court of Fresno County.
COUNSEL:
Sayle & Harris, for Appellant.
Atwell & Bradley, for Respondent Hyde.
JUDGES: McKinstry, J. McKee, J., and Ross, J., concurred.
OPINION
McKINSTRY, Judge
[6 P. 853] The demurrer to the complaint was properly sustained. The land which the plaintiff claims the right to purchase from the State is the northwest quarter of section 30, in township 15 south, etc. Section 3494 of the Political Code reads:
" The unsold portion of the 500,000 acres granted to the State for school purposes, the sixteenth and thirty-sixth sections, and lands selected in lieu thereof, must be sold at the rate of one dollar and twenty-five cents ($ 1.25) per acre, in gold coin, payable 20 per cent of the principal within fifty days from the date of the certificate of location issued to the purchaser; the balance, bearing interest at the rate of 7 per cent per annum in advance, is due and payable within one year after the passage of any acts by the legislature requiring such payment, or before, if desired by the purchaser."
Section 3495 provides for the form of affidavit to be made by any person desiring to purchase any portion of a sixteenth or thirty-sixth section surveyed by the United States. Section 3500 reads:
" Any person desiring to purchase any lands mentioned in section 3494, except the sixteenth and thirty-sixth sections, must make an affidavit that he is a citizen of the United States (or has filed his intention of becoming so), a resident of the State, of lawful age; that he desires to purchase such lands (describing the same by legal subdivisions) under the provisions of this title, and that there is no valid claim to such land other than that of the applicant; that he is an actual settler thereon; that he has not entered any land in part satisfaction of the unsold portion of the 500,000 acre grant, or of the grant in lieu of the sixteenth or thirty-sixth sections, which, together with that now sought to be purchased, exceeds 320 acres."
The northwest quarter of section 30 is not any portion of a sixteenth or thirty-sixth section, and is included in the lands mentioned in section 3494. The complaint shows that the affidavit of plaintiff did not comply with the requirements of section 3500.
It is well settled that an applicant is not entitled to purchase State lands unless his affidavit state the requisite facts. (Hildebrand v. Stewart , 41 Cal. 387; Woods v. Sawtelle , 46 Cal. 391; Botsford v. Howell , 52 Cal. 158.)
Judgment affirmed.