Bryan

Appeal from judgment and order denying motion for new trial.

This proceeding arises out of conflicting claims of the parties due to the fact that both were applicants to purchase a quarter section of land under “An Act regulating the sale of the lands uncovered by the recession or drainage of the waters of inland lakes,” etc., as enacted in 1893 (Stats. 1893, p. 341), and amended 1899 (Stats. 1899, p. 182). The land in question is a part of the territory uncovered by the receding waters of Tulare lake in Kings county. The application of the respondent was - made December 14, 1904, and that of appellant made January 31, 1905. Both applications were in due form and accompanied by the required affidavits. Upon the filing of appellant’s application the state surveyor general declared a contest to exist between said parties concerning the right to purchase the land and made his order referring such contest to the superior court of Kings county for adjudication as to the respective rights of said parties in the premises.

Plaintiff alleged that the affidavit of defendant was false, in that said defendant did not at the time of making said application and affidavit desire to purchase…