Lynch v. Brigham
California Supreme Court
Appeal from the District Court, Fifth Judicial District, County of San Joaquin. Ejectment to recover the S. E. ¼ of Sec. 24, T. 3 S., R. 5 E., Mount Diablo meridian.
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Appeal from the District Court, Fifth Judicial District, County of San Joaquin. Ejectment to recover the S. E. ¼ of Sec. 24, T. 3 S., R. 5 E., Mount Diablo meridian. The defendant, Curtis Brigham, in his cross-complaint, alleged that he settled on the land as a pre-emptor on the tenth day of May, 1868, and filed his declaratory statement on the eighth day of August, 1868. That on the thirteenth day of December, 1868, the grantor of the plaintiff, one Hall, built a cabin on the land, and on the eleventh of May following, filed his declaratory statement as a pre-emptor. That a contest arose…
1DissentMcKinstry, J.
I respectfully dissent. In case of contest before the Land Department between pre-emption claimants, the State •courts will not retry a question of fact, unless on suggestion of fraud, or other grounds of equitable cognizance. (Burrill v. Haw, 48 Cal. 222; Quinn v. Kenyon, 38 Cal. 499.)
The defendant could not have been taken by surprise by the testimony offered by plaintiff before the land officers in respect to his (defendant’s) ownership of other lands than those he sought to pre-empt. If he neither owned nor claimed other lands, this fact, from its very nature, he must have been prepared…
2Cases cited2 opinions
- Quinn v. KenyonCalifornia Supreme Court · 1869
- Burrell v. HawCalifornia Supreme Court · 1874