Albert

This action is prosecuted to determine the conflicting claims of plaintiff and defendant as to their respective rights to purchase from the state of California certain school lands, viz., the northeast quarter of section 8, township 25 south, range 26 east, Mt. Diablo base and meridian, and arises upon a contest initiated in the office of the surveyor general of said *399 state, and by him referred to the superior court of Kern county for trial.

Findings and judgment went in favor of the plaintiff, and the defendant appeals from the judgment and from an order denying his motion for a new trial.

Both parties applied to purchase the land in question, and both applications were regular and sufficient in form; and the question as to whicli party is entitled to purchase it depends upon the character of the land. The defendant’s application was first in point of time, and if the land “is not suitable for cultivation,” as he alleged in his application, he was entitled to purchase without being an actual settler thereon; but if said land “ is suitable for cultivation,” as plaintiff alleged in his application, he, having settled upon and occupied it, is entitled to purchase it. °

But…