Christman

In an action to determine a contest arising in the Surveyor-General’s or Begister’s office, in respect to the right to purchase lands from the State, the defendant is not entitled to judgment to the effect that he has the right to purchase the lands from the State on the ground that the plaintiff has failed to make out his case. Nor is he entitled to such judgment unless he states in his answer facts, Avhich, together Avith those stated in the complaint, show that he has the right to make such purchase. (Woods v. Sawtelle, 46 Cal. 389 .) The *537 answer in this case fails to state the requisite facts. Instead of relying on the certificate of purchase, as the defendant seems to have done, he should have stated the facts which authorized the certificate to issue to him.

It is alleged in the complaint, and not denied in the answer, that the plaintiff has been in the occupation of the lands since May, 1869. The defendant, therefore, was not authorized by the act of March 28, 1868 (Stats. 1867-8, p. 514), to purchase the lands as swamp and overflowed lands.

The act of April 4, 1870 (Stats. 1869-70, p. 878), is not to be construed as prohibiting a settler upon swamp or overflowed land…