Belcher

— This is a contest over the right to purchase swamp and overflowed lands from the state. There are three applicants. Farren’s application was filed before the segregation, and under the recent decision of Buchanan v. Nagle, 88 Cal. 591 , the judgment denying his right to purchase must be affirmed.

Belcher’s application was made after the survey and segregation, but he is not an actual settler, and the court finds that the land is suitable for cultivation, and on the authority of Fulton v. Brannan, 88 Cal. 454 , the judgment must be affirmed as to him, unless it appears that there was error at the trial such as will necessitate a reversal. We find no such error.

The facts, we think, show, independently of the opinion evidence complained of, that the land is suitable for cultivation. The land is level, free from serious obstruction to plowing, the soil a rich, sandy loam. It is near Lake Tulare, but has been dry for some years; and there is evidence that the lake is steadily receding year by year. If in such a soil crops sometimes, or often, fail through drought, it cannot be said, in this state, that the land is therefore unsuitable for cultivation.

The defendant Ford is found…