Wilson

This is an action by plaintiff to recover from defendant moneys paid on account of the purchase of lands. In its nature it is like the cases of the Southern Pacific R. R. Co. v. Lipman, 148 Cal. 480 , [ 83 Pac. 445 ], and Wilson v. Southern Pacific R. R. Co., 135 Cal. 421 , [ 67 PaC. 688 ], where the facts will be found sufficiently stated.

In-this case plaintiff contends that it has been finally determined that patent shall not issue to the defendant, and that therefore he is entitled to his recovery. This contention he charges in two counts, the first based upon decisions of the supreme court of the United States, the second upon the fact that patent has actually issued to him.

The first of these propositions is the only one that requires consideration. The court found that it had been finally adjudicated, and decided that patent was not to issue to the defendant. Its conclusion was based upon the decision of the supreme court of the United States in Southern Pacific R. R. Co. v. United States, 168 U. S. 1 , [18 Sup. Ct. 18]. By appellant it is contended that while it is true that a part of the land in controversy in that case was within the indemnity limits of the branch-line…