Cope, J. concurring.

The Act of Congress of September 4th, 1841, “ To Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Preemption Rights,” in its tenth section authorizes the entry by individuals, in certain- cases, of portions of the public lands, not exceeding one hundred and sixty acres, upon paying the minimum price of the same to the United States; in other words, confers preemptive rights or privileges upon individuals on compliance with certain conditions. But the act, in the same section, reserves certain portions of the public lands from the exercise by individuals of this right or privilege. It declares, among other things, that no portion of the lands “ which have been selected as the site for a city or town ” shall be liable to entry under its provisions.

The Act of Congress of May 23d, 1844, “ For the Relief of the Citizens of Towns upon the Lands of the United States under certain circumstances,” authorizes the entry, at the like minimum price, of portions of the surveyed public lands “ settled upon and occupied as a town site ” by the authorities of the town, when the town has been incorporated, and when not incorporated, by the Judges of the County Courts of the counties within which the town is situated; such entry to be “ in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or territory in which the same is situated.”

The Act of Congress of March 3d, 1853, “ Providing for the Survey of the Public Lands in California, the Granting of Preemption Rights therein, and for other purposes,” whilst placing the public lands of the United States in this State, with certain exceptions, “ subject to the preemption laws of September 4th, 1841,” exempts from sale under its provisions the lands “ not being mineral lands, occupied as towns or villages,” and provides that the *567 whole of such lands, whether settled upon before or after the survey of the same, shall be subject to the provisions of the Act of May 23d, 1844.

The Legislature of this State, in order to give effect to the Acts of Congress with reference to the public lands of the United States in the county of Humboldt, occupied as towns or villages, passed on the twenty-seventh of April, 1855, an act providing for the entry, at the proper Land office, of such town or village lands, and the disposition of the town or village lots. On the third of April, 1856, this Act of 1855 was amended and made to conform more closely than it did in its original shape with the legislation of Congress. As amended, it provides that the corporate authorities, or the County Judge, as the case may be, immediately after the entry of the lands, shall cause notice to be published in certain newspapers, once a week for the period of three months, requiring claimants of town lots to file, within three months from the date of the first publication, in the office of the County Clerk, in case the town is unincorporated, or with the corporate authorities, if the town be incorporated, a statement of their claims, particularly describing the lots, and setting forth the grounds upon which their claims are founded; and to present, within sixty days after the expiration of the notice, proof of their claims, and of the payment of the price fixed by the act; and declares that no claim shall be filed or proof be permitted after the periods respectively prescribed. The act as amended also designates the evidence which shall be required to establish the claims asserted. Its fifth section, which relates to this subject, is as follows: “ The evidence required to establish any claim to any lot or lots, or parcels of land in any town in said county, under the provisions of this act, shall be that the claimant thereof is a citizen of the United States, or has declared his intention to become such previous to the filing of his claim as hereinbefore provided, and is a resident of said county, and that the claimant was one of the original occupants and locators of such town, or holds his right to such lot or lots, or parcels of land, from such original occupant and locator or his assignees; provided, no right to any unimproved lot or lots, or parcels of land, as last above mentioned, acquired after the passage of the act to which this is *568 amendatozy, shall be respected, uzzless the person from whom the same be acquired be at the time a resident of said county; and provided further, that any person or persons who have been in peaceable possession of any lot or lots, or parcels of land, in such town for one year next preceding the passage of the act of which this is amendatozy, and have improved the same, shall be deemed to have prior right to said lots or parcels of land.”

By another section of the same Amendatory Act, the County Judge or corporate authorities, as the case may be, are required to dispose of the lots claimed, and for that purpose to examine, so soon as practicable, every claim filed, and any papers in support of the same, and hear such proof as may be submitted to establish the right of the claimant; and if the same be found to comply with the provisions of the act, and no conflicting claim be filed, to issue to him a certificate confirming his claim.

An Act of the Legislature, passed on the twenty-fourth of January, 1860, amending a section of the Amendatory Act of 1856, provides for proceedings in case there is any dispute or contest in relation to the title of the lots claimed. It declares, in substance, that where there is any dispute or contest, the County Judge or the corporate authorities, as the case may be, shall hear the testimony relating thereto, and decide upon the same, and enter their decision upon the minutes of the hearing ; and if there be no appeal from such decision within sixty days, shall issue their certificate to the persons to whom the lots are awarded ; that if any claimant feel aggrieved by the decision, he may take an appeal therefrom to the County Court within sixty days thereafter; that the appeal shall be made by filing with the said authorities notice thereof, and with the Clerk of the County Court a complaint, and serving a copy of the notice and complaint on the contesting party; that to the complaint the contestant shall answer or demur within the time provided in other civil actions; and that “ in all respects the pleadings and all proceedings ” shall be governed by the rules applicable to actions in Courts of Record, with the same right of appeal and in the same manner to the Supreme Court; that when notice of appeal is filed with the corporate authorities, their power to issue a certificate to the successful claimant before them shall be *569 suspended, until the appeal be dismissed or finally determined ; and that upon such dismissal or other final determination, they shall issue the certificate to the party found by such determination entitled thereto.

The town of Eureka, in Humboldt county, was incorporated by an Act of the Legislature, on the eighteenth of April, 1856, and the corporate authorities consisted of a Board of Trustees. The town is located upon public lands of the United States, which are not mineral lands, or near such lands, and were regularly entered in the proper Land Office by its authorities under the Acts of Congress to which we have referred. After such entry, the trustees gave the notice provided by the Act of the Legislature of 1856, requiring claimants to file a statement of their claims and to present proofs of the same; and under the notice, conflicting claims were presented to the lots which are the subject of the present controversy. The action is brought under the Act of the twenty-fourth of January, 1860, the substance of which we have stated above, to determine between these conflicting claims. Both parties submitted to the Board of Trustees proofs of their respective claims, but the Board awarded the lots to the claimant Reed. The adverse claimants, C. S. and Thomas Ricks, thereupon gave notice of appeal from the decision of the Board, and filed their complaint against the successful contestant. The complaint refers to the Acts of Congress and the legislation of the State, and after mentioning the incorporation of the town, the vesting of the corporate authority in a Board of Trustees, and the public character of the lands, alleges that the authorities undertook the execution of the trust imposed by those acts and that legislation, and after entering the lands gave public notice requiring the claimants to file a statement of their claims; that the plaintiffs, within the time prescribed and in pursuance of the notice, filed such statement of their claim to the lots; that the ground of their claim was, that they were citizens of the United States, residents of the county of Humboldt, and occupants of the town, and that they held title and right to the lots from the assignees of one of the original occupants and locators of the town, and by peaceable possession and improvement of the same; and that thereafter, within the time required by the notice and law, *570 they submitted to the corporate authorities competent and sufficient proof in support of their claim; but that the Board, disregarding the requirements of the acts mentioned, and in violation of their duties, rejected the claim and confirmed the adverse claim of the contestant, Reed, who set up some right to the lots, but who, as the plaintiffs allege, held no proper or legal right thereto, and failed to prove any such to the Board. The complaint concludes with a prayer for judgment, that the plaintiffs be awarded the lots, and that a proper certificate be issued to them. To this complaint the defendant demurred, on the alleged ground that the County Court had no jurisdiction of the subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer being overruled, the defendant filed his answer, in which he insists that the rules and regulations of the legislative authority of the State were not intended, by the Acts of Congress, to confer upon the corporate authorities the power to determine the right of the defendant or of any other person to any lot or lots, or parcels of land in the town. He also denies that the plaintiffs have any lawful right or claim to the lots in controversy, or ever had peaceable possession of the same, but on the contrary, avers that in the year 1855, the premises were in the actual, peaceable possession and occupancy of one James R. Duff, a citizen of the United States, and a resident of Humboldt county, and were improved by him ; that afterwards, in ^anuary, 1856, the defendant, by the permission and consent of the said Duff, entered upon the possession of the lots and improved the same, and has since then continued in the actual and peaceable possession and occupancy thereof; that the premises were conveyed to him by the said Duff by deed, duly executed, acknowledged and recorded, bearing date on the thirtieth of August, 1859; and that they are of the value of $2,000. This portion of the answer alleging a right derived from Duff was, on motion of plaintiffs, stricken out as irrelevant and immaterial.

On the trial, the plaintiffs proved that Isaac Wilson was one of the original occupants and locators of the town,’ and that he took up and occupied a tract of public land at the time unoccupied, containing one hundred and sixty acres, or thereabouts, embracing the lots *571 in controversy, and then traced title, by deed from him to one Crosier, dated in December, 1850, and from Crosier to themselves, dated in May, 1853. The proof of the original occupancy and location by Wilson was objected to as irrelevant, on the alleged ground that such occupancy and location were unathorized by any Act of Congress, and that the provisions of the Act of the Legislature of the State upon this subject were inoperative and void. To the mesne conveyances the further objection -was taken that they were not properly acknowledged and recorded. The several objections were overruled; and with the additional proof that the plaintiffs were citizens of the United States, and residents and occupants of the town of Eureka, they rested their case.

In defense to the action, the defendant produced a contract entered into in May, 1850, between two companies styling themselves respectively The Mendocino Exploring Company and The Union Company, by which the members of the first named company agreed to locate and secure three quarter sections of land opposite to the same number of sections selected by the latter company, and that the six quarter sections when surveyed should form a site for the town of Eureka, and that the town when laid out should be allotted to each member of both companies in equal proportions; and offered to prove that Isaac Wilson, the grantor, from whom the plaintiffs claim to derive their title, was a member of the Union Company, and in pursuance of the contract in question and in trust for the equal benefit of the parties thereto, located the land described in his conveyance to Crosier, and that at the date of this conveyance, C. S. Ricks, one of the plaintiffs, knew of the existence of the contract, and the fiduciary capacity in which Wilson acted ; but under the objection of the plaintiffs the agreement and evidence were excluded. The Court thereupon rendered judgment for the plaintiffs, and awarded the premises to them. From this judgment the defendant appeals.

The objections taken by the appellant to the proceedings and judgment of the County Court relate, as appears by the statement we have made: 1st, to° ¿he jurisdiction of the Court; 2d, to the constitutionality of the legislation of the State requiring evidence that the claimant of lots was one of the original occupants or *572 locators of the town, or derives his title to the lots from such original occupant and locator; and 3d, to the exclusion of the agreement between the Mendocino Exploring Company and the Union Company, and the evidence offered in connection with it. The determination of the second objection will dispose of the position taken to the sufficiency of the complaint, and to the ruling of the Court in striking out a portion of the answer.

1. The Constitution provides that the County Courts shall have such jurisdiction, in cases arising in Justices’ Courts and in special cases, as the Legislature may prescribe, but shall have no original jurisdiction except in such special cases.” (Art. 6, sec. 9.) The jurisdiction thus conferred is both appellate and original. It is appellate as to cases arising in Justices’ Courts, and in special cases arising from the action of Boards or officers exercising judicial or quasi judicial functions. The extent of such jurisdiction is such “ as the Legislature may prescribe,” subject only to the qualification that it does not trench upon and exclude the jurisdiction of the superior tribunals. Under the clause in question, provision has been made in numerous instances for appeals from the action of Commissioners or Boards of Supervisors in awarding damages where private property is taken for public uses. (See Act concerning Roads and Highways in the Counties of Humboldt, Napa and Siskiyou, of February 22d, 1860, sec. 6.) And we do not perceive any inhibition in the Constitution to vesting a like appellate jurisdiction in the County Court from the action of the Board of Trustees of the town of Eureka in the execution of the trust imposed by the Acts of Congress and the legislation of the State in the disposition of the lands entered by them. But in fact, the jurisdiction vested by the Act of January 24th, 1860, is not appellate, though so designated. It is original jurisdiction which is conferred. The right of the parties to the lots, under the rules and regulations prescribed by the legislative authority of the State, is the subject of consideration and determination, without reference to the evidence presented to the Board of Trustees. The whole matter is investigated anew; and the action of the Board of Trustees only becomes material as furnishing authority for the proceeding before the County Court. When, herefore, the act says that in case any claimant shall feel aggrieved *573 by the decision of the Trustees he may take an appeal to the County Court, and requires the proceedings there to be by complaint, answer or demurrer, and in conformity with the rules applicable to actions in Courts of Record,, it only means that if the claimant be dissatisfied with the decision of the Trustees, he may have his right investigated and determined in an action brought against the successful claimant in the County Court.

In the Act of Congress of March 3d, 1851, for the settlement of private land claims in California, provision is made for the investigation of claims to land held under grants from the Spanish or Mexican Governments by a Board of Commissioners. By a subsequent act, passed the thirty-first of August, 1852, it is declared that the filing of a certified transcript of the proceedings and decision of the Commissioners with the Clerk of the United States District Court “ shall, ipso facto, operate as an appeal for the party against whom the decision” is rendered. And in the case of the United States v. Ritchie, ( 17 How. 533 ) it was objected that the law in thus prescribing an appeal was unconstitutional, as the Board of Commissioners, as organized, was not a Court under the Constitution, and could not therefore be invested with any of the judicial powers conferred upon the General Government; but the Supreme Court said, in answer to the objection, “ that the suit in the District Court is to be regarded as an original proceeding, the removal of the transcript, papers and evidence into it, from the Board of Commissioners, being but a mode of providing for the institution of the suit in that Court. The transfer, it is true, is called an appeal; we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The District Court is not confined to a mere reexamination of the case as heard and decided by the Board of Commissioners, but hears the case de novo, upon the papers and testimony which had been used before the Board, they being made evidence in the District Court; and also upon such further evidence as either party may see fit to produce.” So in the present case, we must not be misled by the use of the word appeal, but look to the substance and intent of the proceeding. Thus looking, we must see that there is nothing appellate in the action authorized before the County Court, but only a mode pro *574 vided' for testing before one of the regularly constituted tribunals of the country, the conflicting rights of adverse claimants to the town lots, under the Acts of Congress and the legislation of the State.

The inquiry then arises whether the action authorized in the County Court is a “ special case,” for of such cases only can that Court take original civil jurisdiction. The proceeding before the Board of Trustees is clearly a special case; it is a proceeding purely statutory, commenced and prosecuted for the ascertainment of a particular fact to guide the Board in the execution of the trust devolved upon them. It is not an ordinary action at law or equity, or conducted according to the forms of such action. But the proceeding in the County Court is quite different from that before the Board of Trustees. It there takes the form of a regular action; a complaint is to be filed and the contestant must answer or demur within the time provided in ordinary civil actions, and the pleadings and proceedings are to be governed by the same rules applicable to actions in other Courts of record. But still we are clear that the action is a “ special case.” It is a proceeding marked by one peculiarity, which distinguishes it from the class of ordinary actions at law or equity. The parties who are to be governed by its judgment—the Board of Trustees—are not litigants before the Court, or parties to the record. They do not appear in person or by attorney in the action, and yet are required to yield obedience to and carry into effect the determination of the Court. The proceeding is in effect only an inquisition, through the form of a regular action, like the proceeding before the Board for the ascertainment of a particular fact, upon which, when once judicially ascertained, the Board must act independent of any volition on its part. It is, therefore, a special case, within the most narrow construction ever given to those words by this Court. (Parsons v. The Tuolumne Co., 5 Cal. 43 ; Jacks v. Day, 15 Id. 91 ; Arnold v. Rees, 18 N. Y. 57 ; Doubleday v. Heath, 16 Id. 80 ; Kundolf v. Thalheimer, 2 Kern. 593.) It follows that the County Court had jurisdiction of the action, and there was no error in the ruling of the Court to that effect.

2. The objection to the constitutionality of the legislation of the- *575 State, prescribing the evidence necessary to establish the title or right of the claimant to the lots claimed, is not well taken. It is true, the entry of the town lands by the corporate authorities or County Judge is, under the Acts of Congress, “ in trust for the several use and benefit of the occupants thereof according to their respective interests; ” but this provision does not establish that it was the intention of Congress to give the benefits of the entry to mere temporary occupants of particular tracts at the date of the entry, without reference to the character of their occupancy, and thereby in many instances deprive the original bona fide settlers of the premises and improvements in favor of those who had by force or otherwise intruded upon their settlement. Were such the effect of the provision in question, the trespasser of yesterday or the tenant of to-day would often be in a better position than parties who, by their previous occupation and industry, had built up the town, and made the property valuable. We do not think Congress could have contemplated that results of this nature should follow from its legislation, but on the contrary, that it intended that the original and bona fide occupants should be the recipients of the benefits of the entry to the extent at least of their interests—that is, of their actual occupancy and improvements. And the legislation of the State is directed to carry this intention into effect, and in order that the right of the original occupants and locators should not be preserved without continued occupancy, the provision is made that any person who has been in peaceable possession of a lot one year previous to the passage of the Act of 1855, and has improved the same, shall be deemed to have .the better right. This legislation is in our judgment both constitutional and wise.

It follows from this view of the legislation of the State, that the matter stricken out of the answer of the defendant was irrelevant and immaterial. The possession and improvement of Duff in 1855, from whom the defendant alleges he derived his title, did not, under that legislation, confer a right superior or equal to that of the original occupant, through whom the plaintiffs claim. To confer a superior right, the possession must have preceded the Act of April, 1855, for the period at least of one year. It also follows that the objection taken to the sufficiency of the complaint, based on the alleged *576 unconstitutionality of the State legislation, was properly overruled. There is an objection, however, to the complaint, not taken by the appellant, and therefore not to affect the decision, which it is proper to notice, lest the complaint may become a precedent. It alleges that the plaintiffs derive their title to the lots claimed from one of the original occupants and locators of the town, without stating the name of such original occupant and locator. It should have given his name, and thus have directed the attention of the defendant to the particular fact to which evidence would be offered.

3. The agreement between The Mendocino Exploring Company and The Union Company, and the evidence offered in connection with it, were properly excluded. If Wilson sold the claim located in violation of the trust reposed in him by the companies, it was a matter for them to complain of. The defendant did not claim under or in privity with them, and was in no position to call in question the good faith of the acts of their agent. And besides, there was no evidence that Crosier, when he took the conveyance from Wilson, had any knowledge of the relation of the latter to the companies. So far as appears from the record, he was a bona fide purchaser for a valuable consideration. He took the claim, therefore, freed from any secret trusts, if any such existed. (Paige v. O’Neal, 12 Cal.) Whether the deeds from Wilson to Crosier and from Crosier to the plaintiffs were properly acknowledged and recorded or not, is of no consequence. The defendants did not claim under Wilson, and could not invoke the want of such acknowledgment or record for their protection. There is no question as to the due execution of these deeds, and this is all that was necessary to pass the grantor’s interest, except as to subsequent purchasers from him in good faith and for a valuable consideration.

Judgment affirmed.