McLaughlin

This is an action of ejectment. The complaint is in the usual form, and the answer is a general denial.

The plaintiff claims title under a patent from the United States to the Central Pacific Railroad Company issued April 3, 1872, and a deed from that company to plaintiff’s testator dated April 3, 1873. The defendant claims under a patent from the state of California dated February 25,1875.

The facts, which are not disputed, are, in substance, as follows: In 1858, when the land was unoccupied public land of the United States, Philip Hirleman settled on the land and built thereon a dwelling-house, fences, and corrals, cultivated a portion of it, and remained in possession until he conveyed to one Jean Peter, March, 1866; the latter went into possession of the land and held the same until it was conveyed by him to the defendant herein, March 29, 1867.' On June 13, 1864, Hirleman applied to the locating agent of the state to locate the land in controversy under the provisions of the act of the legislature of April 27, 1863, entitled “An act to provid,e for the sale of certain lands belonging to the state,” as a lieu school-land location; this application was in due form, and…

— I concur in the judgment. There is no finding in this case of the ultimate fact of ownership of the land in controversy, nor is it found as a fact that Hirleman, under whom the defendant claims, was a bona fide settler on the land in controversy on January 30, 1865, at which date there was filed in the United States land-office at San Francisco the order of the Secretary of the Interior withdrawing from sale and location lands within twenty-five miles on either side of the general route of the Western Pacific Railroad Company, as shown upon its map of such general route theretofore filed. If he was such settler, then the land in controversy did not pass to the railroad company; otherwise it did. The court, therefore, should have found either that he was or was not a bona fide settler, in so many words. A bona fide settler, within the meaning of section 4 of the act of Congress of July 2, 1864, is one who has made an actual settlement upon public land, intending in good faith to acquire the title thereto from the United States. The words should be held to apply to any actual settler upon land affected by the act at the date of the order of withdrawal provided for in section 7 of…