ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
MR. JUSTICE HARLAN delivered the opinion of the court.
This action was commenced in the District Court of the third judicial district of California.
The complaint alleged that on the 23d day of April, 1873, the original plaintiff, Charles McLaughlin, became the owner in fee simple and entitled to the possession of the south half of section twenty-one, in township seven south, of range three west, of the Mount Diablo base and meridan, according to the United States survey; that thereafter he continued to be the owner and was entitled to the possession of said land; but that on the above date the defendant Menotti entered into possession, ousted him and continued to hold possession, to his damage in the sum of one thousand dollars.
The answer of the defendant denied each allegation of the complaint. McLaughlin died, and his estate was distributed to the present appellees who were substituted as plaintiffs.
There have been two trials of the case, each time by the court without the intervention of a jury. The first judgment, which was for the defendant, was reversed by the Supreme Court of California because of the insufficiency of the finding of facts bearing upon the question of title. 89 California, 354. The last judgment was also for the defendant; but it was reversed, and the cause remanded with directions to enter judgment in favor of the plaintiffs for the lands in controversy, and for rents and profits. McLaughlin v. Menotti, 105 California, 572. From that decree a writ of error was sued out to this court.
The case made by the agreed statement of facts, and by the evidence introduced at the trial, was substantially as follows:
The Central Pacific Railroad Company of California executed, October 31, 1864, an assignment to the Western Pacific Railroad Company of the right to construct its road between San Jose and Sacramento, and of its right accruing to it by virtue of the acts of Congress of July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, to the land in controversy in this action. This assignment was ratified by Congress March 3, 1865. 13 Stat. 504, c. 88.
On the 8th day of December, 1864, the Western Pacific Railroad Company filed in the office of the Secretary of the Interior a map designating the general route of its road. A copy of that map was received at the United States land office at San Francisco on the thirtieth day of January, 1865, accompanied by an order from the Secretary reserving from preemption, private entry and sale for the benefit of the railroad company the odd-numbered sections of land within twenty-five miles on either side of the line of such general route. This reservation was in force from the day last mentioned.
On February 20, 1870, the Central Pacific Railroad Company filed in the Department of the Interior the map of the definite location of its railroad between San Jose and Sacramento; but the road opposite the land in controversy, between San Jose and Niles, was completed about the first day of September, 1866.
On June 22, 1870, the Central Pacific Railroad Company of California and the Western Pacific Railroad Company consolidated under the name of the Central Pacific Railroad Company.
The official map of township seven south, range three west, Mount Diablo base and meridian was filed by the United States surveyor general for California in the United States land office at San Francisco on February 27, 1865. Prior to that date, and on or about the 10th day of June, 1864, a survey was made by a deputy United States surveyor for California of the part of that township embracing the land in controversy; but that survey was not made by authority of the Government of the United States. No actual survey of any portion of that township had ever been made before June, 1864, and up to that time no attempt had been made by any person, or by the Government, to have its boundaries ascertained, or to establish the lines of sections in that township.
The land in controversy in this action is within twenty miles of the line of definite location of the Central Pacific Railroad Company, and within twenty-five miles, but not within ten miles, from the line of the general route of the railroad.
On the third day of April, 1872, the United States duly executed and delivered to the Central Pacific Railroad Company a patent for the land in controversy, with other lands. It was in the usual form of patents issued under the Pacific railroad acts. And on the third day of April, 1873, that company executed to McLaughlin a deed conveying to him all its right, title and interest in this land.
At the commencement of this action the defendant was in the possession of the south half of the southeast quarter, and the southwest quarter of section twenty-one, of township seven south, range three west, Mount Diablo meridian, being two hundred and forty acres of the land described in the complaint, and of no more. No part of these lands are or were mineral lands, or were returned or denominated as mineral lands.
It was found that one Philip Hirleman settled upon and
improved this land as early as 1858; that it was "then used for pasturage, had a house upon it and was enclosed partly by a post and rail fence, and for the balance by gulches forming a natural enclosure"; that in June, 1864, and until December 6, 1866, it was occupied by him, and he had on the land during that time a house, barn, corrals, a small field of wheat and potatoes, and cows and horses. The finding states that he "was there all the time; had possession of about 1000 acres of land, including the land in controversy, which was enclosed by two fences and two gulches; each fence at each end thereof connecting with the gulches; the gulches and fences constituting an enclosure of the tract of about 1000 acres, including the land in controversy. The fences ran east and west; the northerly fence was between a half a mile to a mile in length and ran partly across section 21, and the south fence was upon a section lying south of section 21."
It was also found that "on January 30, 1865, the said Hirleman was, and had been prior thereto, and during the year 1864, and was, subsequent to the said 30th day of January, 1864, up to the time of the execution by him of the deed to Jean Peter, a settler in good faith on the land involved in this action, to wit, said 240 acres; and that the improvements hereinabove designated were made on the said land by him in good faith, and that such settlement by him, and the said improvements, were made with the intention in good faith of taking, at the proper time, the necessary steps to acquire the title to said land from the Government of the United States, by procuring its location in part satisfaction of the grant made by the Government of ...