Wilkinson

Neither the State Surveyor-General nor the District Court had any jurisdiction over the contest initiated by respondent for the decision of the Commissioner of the General Land Office, affirmed by the Secretary of the Interior, awarding the land to appellant was final. (Foscalina v. Hoyle, 47 Cal. 437 ; Hess v. Bolinger, 48 Cal. 849 .)

Hartman & Haley, for the Respondent.

The selections made by defendant were void, because the land, at the time of selection, was unsurveyed by the United States. The selections were not cured by the Act of Congress of July 23rd, 1866. ( Chant v. Reynolds, 49 Cal. 213 ; Huff v. Hoyle, 50 Cal. 16 .)

The decision in the latter case ( 3 Otto, 558 ) does not change this rule. The decision only goes to this extent, that when a settlement was made upon land claimed by a Mexican grant, and which land was excluded by final survey, settler has same time to prove up his claim as is allowed to a pre-emptioner. This principle has no application to defendant, who never was upon the land.

Under the Act of Congress of July 23rd, 1866, it was a question for the Land Department, first, whether the State had selected the land in controversy in part satisfaction of…