This is a writ of error to the supreme court of California. The case relates to the title to lands in that state, and was decided on a demurrer, which was sustained, to a petition of plaintiff in error. This petition was in the nature of a bill in chancery, seeking to hold the defendant, who had the legal title to the land, by a patent from the United States, to be a trustee for the plaintiff, on the ground that in a contest between the two, before the land department, the officer of that department had, by the decision in favor of the defendant, deprived plaintiff of his superior right by a misconstruction of the law. The land in controversy was within the exterior limits of a claim under a Mexican grant. The validity of this grant was established by proceedings under the act of congress on that subject. But when the survey was made, and finally confirmed, which ascertained the locality of this grant, it was found that the land in suit was not within it. This fact was established on June 6, 1871, by the confirmation of the final survey of that grant.* On July 1, 1871, the map of the congressional survey of the township, which included the land, and which was completed by subdivision into sections and quarter sections, was filed in the local land-office of the district of San Francisco. Bangs, the defendant, who had been residing on the land for some time, made and filed with the register and receiver his declaratory statement, asserting an intention to pre-empt the land June 26, 1871. Under this claim, the defendant, having complied with the requirements of law, received the patent of which plaintiff claims the benefit.
Plaintiff's superior equity, as he sets out in his petition, arises under the act of congress of March 3, 1853, granting to the state of California every sixteenth and thirty-sixth section of the public lands for school purposes. 10 St. 244. As none of the public lands in California had been surveyed, it could not then be known where these school sections would be located; and, in view of the fact that many settlements would be made on those sections before they could be ascertained by survey, the seventh section of the act, while validating the claims of such settlers, authorized the state to select other lands in lieu of them, and in lieu of such as were reserved for public use or taken for private claims. The history of the attempt of the state to make these surveys for herself, and to exercise the right of selection under this seventh section of the act of 1853, is given in the opinion of this court in the case of Huff v. Doyle, 93 U.S. 558, and reference is here made to that history for an understanding of the present case. Indeed the land in that case, as in this, was a part of the Mexican claim Las Pocitas, and the principles announced in that case are decisive of this. It appears from the history there detailed that the land department of the United States, refusing to recognize the surveys made by state authority, and the selection made by the state and sold and certified to its purchasers, congress, on July 23, 1866, (14 St. 218,) passed an act for the relief of such persons and to remedy the evils of this unauthorized action on the part of the state of California, as far as possible.