Barnum

This action was brought to determine whether Barnum or Bridges had the better right to purchase a certain half-section of school land from the state, the same being a part of the “thirty-six” sections of land donated to the state of California by the Congress of the United States for school purposes.

*605 Judgment was rendered in favor of the defendant, from which, and an order denying a new trial, the plaintiff appeals.

The first ground claimed to militate in favor of the appellant’s contention seems to be, that the evidence, viewed in the light of the principles enunciated by the appellate court of the state in the case of Manly v. Cunningham, 72 Cal. 240 , is plainly and without conflict conclusive of the fact that the land was suitable for the cultivation of ordinary crops, and was therefore agricultural and not timber land, which latter kind the decision of the trial court defined and adjudicated it to be.

The evidence on the one side, as it seems to us, is contradictory, to some extent at least, to that given in favor of the adverse party, and the decision of the lower court upon the point should be upheld. But the further contention is made by the appellant, that the…