McDonald

This is a contest between the plaintiff and the defendants, Taylor and Welsh, for the right to purchase swamp-land, referred by the surveyor-general of the state to the superior court of Tulare County for trial. The judgment was in favor of the plaintiff. The defendant Welsh moved for a new trial, and his motion being denied, he, alone, appeals from the judgment, and from the order denying his motion for a new trial.

The land in contest was segregated as “ swamp and overflowed land ” by authority of the United States in October, 1884.

The court found that the plaintiff settled upon the land, and in due form applied to purchase the same on the ninth day of December, 1887, and that the land then was, and ever since has been, suitable for cultivation.

The court also found that the appellant, on said ninth day of December, 1887, filed his application to purchase the land, but that he never was a settler on the land.

1. The principal point made by counsel for appel *44 lant is, that section 3 of article 17 of the constitution has no proper application to “ swamp and overflowed lands,” because that class of lands must be considered as unsuitable for cultivation. On this point the…