Appeal from the District Court, Sixth Judicial District, County of Sacramento.

E. H. Cone, on the 21st of July, 1868, filed his complaint against the defendant to recover possession of the southeast quarter of section twenty-four, in township nine north, range two east, Mount Diablo base and meridian, lying in Tolo County. The defendant answered. September 9, 1870, the defendant stipulated that the plaintiff might file a supplemental complaint, which contained au allegation that on the 2d day of May, 1870, the United States had issued to the plaintiff a patent for the land. The complaint was filed in accordance with the stipulation. January 14, 1871, the defendant answered, setting up that the land was swamp and overflowed, and that it was selected and surveyed by the State of California, as swamp and overflowed land, prior to 1865, and that in October, 1865, the defendant entered into possession of it as such, and purchased it from the State as swamp and overflowed. The defendant then, for an equitable defense, set up that he was a qualified pre-emptioner, and on the 10th day of October, 1867, settled on the land as a pre-emption claimant, and on the 6th day of January, 1868, went to the local land office to file his declaratory statement, and was informed that the land was suspended from entry by pre-emptioners, and that he was prevented by the register from filing his declaratory statement, and that as soon as declaratory statements could be received, and on the 4fch of April, 1868, he filed his declaratory statement. That he had always been ready to make the necessary proofs to entitle him to pre-empt, and to pay for the land, and that he took the necessary witnesses to the land office to prove his right of pre-emption, “but because of the wrongful and fraudulent acts and doings of the plaintiff, he was not permitted to do so by the register and receiver.” The answer asked that the plaintiff be adjudged to hold the legal title in trust for the defendant, and, upon the payment to him of such sum as he had paid the United States for the land, and his expenses, that he be required to convey to the defendant. The plaintiff, having been substituted for Cone, demurred to the defense in equity, and the demurrer was sustained. The court found the following, among other facts:

“First. The plaintiff received from the United States a patent for the land in controversy, bearing date the 2d day of May, 1870.'

“Second. The plaintiff’s certificate of purchase, upon which said patent was based, bears date the 4th day of -, 1868, and his declaratory statement, as a pre-emptioner, was filed in April, 1867.

“Third. On the 2d day of May, 1868, the State of California issued to the defendant a patent for the same land as swamp and overflowed land.

“Fifth. The west half of the quarter section in dispute is not swamp or overflowed land within the meaning of the act of Congress passed 28th September, 1850.

‘ ‘ Sixth. The east half of the said quarter section is swamp and overflowed land.

The defendant moved for a new trial on a bill of exceptions. By the bill it appeared that the plaintiff, to prove his right to recover, offered in evidence a patent from the United States, issued to Cone, May 2, 1870, and that the defendant objected to its introduction, but the objection was overruled. The plaintiff then, to show title, and when acquired, offered in evidence a certificate of purchase to Cone, dated May 4, 1868, and his declaratory statement filed in April, 1866. The defendant objected also to these, but the court overruled the objection. There was no proof that the defendant, or the State of California, had notice of, or was a party to the proceedings in the United States Land Office, by which Cone obtained his patent.

The defendant introduced a patent to him from the State of California, dated May 5, 1868, which contained the following clause: “Now, therefore, all the requirements of the acts of Congress, as well as the acts of the State Legislature, in relation to swamp and overflowed lands, having been fully complied with, I, H. H. Haight, Governor of the State of California, by virtue of the authority in me vested, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said John Hynes all the above-described lands, with the appurtenances.”

" For the purpose of establishing one link in the chain of proof, to show the swamp and overflowed character of the land, and that as against the Government of the United States and the plaintiff claiming under it, the defendant had acquired the title to the lands under and by virtue of his patent from the State, the defendant having proved that this was within the lines of what had been designated as swamp and overflowed land about the 23d day of December, 1861, by the State authorities, and that William Minis, as county surveyor, then made a personal examination of the land as to its character and run the lines, offered to prove by William Minis and other competent evidence, that the segregation was made by the county surveyor under the provisions of the act of the Legislature of this State, passed May 13, 1861, entitled ‘ An Act to provide for the reclamation and segregation of the swamp and overflowed and salt marsh and tide lands donated to the State of California by acts of Congress,’ and that the character of the land as to its swamp and overflowed character was established by testimony taken in the manner prescribed by the Commissioner of the General Land Office at Washington, and under the supervision of said Commissioner of the General Land Office. The defendant offered this evidence for the purpose of showing, or, at least, tending to show, the swamp and overflowed character of the land; and, further, that if it should prove that it was not in reality of that character, yet the Government, making itself a party to the segregation in the manner it did, was bound by the acts then done in relation to the character of the land. The plaintiff objected to the offered testimony, on the ground that the same was irrelevant and immaterial. The court sustained the objection.”

The plaintiff recovered judgment for the west half of the quarter section. The defendant appealed from the judgment, and from an order denying a new trial.

The other facts are stated in the opinion.

[Note.—The act of Congress of July 23, 1866, confirmed to California lands which it had theretofore selected and sold as swamp and overflowed, even if the same were not in fact swamp and overflowed.]