Peterson

Action in the nature of ejectment to recover from defendant the possession of the southwest quarter of the northwest quarter of section 29, township 14 south, range 6 east, Mt. Diablo meridian, in the county of San Benito. The action was commenced December 13, 1888.

The answer of the defendant, after denying all the *375 allegations of the complaint, proceeds as follows: “ And for another and further answer, defendant avers that the land described in the complaint is public land of the United States, open to settlement under the homestead and pre-emption laws; that defendant is a citizen of the United States, over the age of twenty-one years, and a married man, having a wife and child; that defendant is now residing upon said land, with a view and intent of entering the same as a homestead under said homestead laws, and of acquiring title thereto under said homestead laws; that said land is subject to a claim of the Southern Pacific railroad, but for a valuable consideration said company will abandon and relinquish its said claim to said land, and the same will thereby become open to immediate entry under said homestead laws; and defendant with his said family is now residing…