ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
MR. JUSTICE McKENNA delivered the opinion of the court.
Suit brought by the State of California to quiet title to certain lands embraced in a patent issued under certain statutes of the State authorizing the sale of tide lands.
The lands involved constituted location No. 57 of the state tide lands, and the State alleged that they had been at all times a portion of the inner bay of San Pedro and below the line of ordinary high tide; that they were partly within the limits of the City of San Pedro and partly within the limits of Wilmington; that prior to and since 1870 no portion of them had ever been reclaimable for agricultural or other purposes and that the State had at all times withheld them from sale.
The intermediate pleadings we may omit. The defendants (plaintiffs in error here) filed separate answers, the pertinent parts of which may be summarized as follows: They denied the title of the State, the location of the lands as alleged or their relation to the cities of San Pedro and Wilmington, or that they were not susceptible of reclamation for agricultural purposes or that they had been withheld from sale by the State.
For an affirmative defense it was alleged that one Phineas Banning, in February, 1866, made application to the
State under an act of its legislature for the disposition of state lands to purchase the lands in controversy; that he possessed the qualifications to apply to purchase the lands and on February 15, 1866, did apply to purchase them under an act of the legislature providing for their sale approved April 27, 1863, and in conformity to his application and the provisions of § 7 of that act caused a survey of the lands to be made and a plat and field notes thereof to be completed by the county surveyor of Los Angeles County and paid a large sum of money to such surveyor April 2, 1866, for legal fees; that he caused a copy of his application and affidavit to be filed in the office of the surveyor general of the State February 15, 1866; that on said date he subscribed the oath required by § 28 of the act of 1863 and complied with § 29; that by reason of such proceedings he acquired the title to the lands and a contract was created between him and the State whereby the State agreed to sell him the lands upon the terms provided in the act of 1863. That he complied with all other provisions of the act and of other acts, and that a patent was duly issued to him and the title thereby conveyed to him and by him conveyed to defendants. That the State by this action is attempting to impair the obligation of the contract between the State and Banning in violation of Article I, § 10, of the Constitution of the United States.
That subsequently other applications were made to purchase other lands in the vicinity of location No. 57 which overlapped and conflicted with that made by Banning; that one of said applicants, to-wit, one William McFadden, made a demand upon the surveyor general of the State that in pursuance of § 3413 of the Political Code of the State the contest between the applicants be referred to the proper court for judicial determination of the question as to which of the applicants was entitled to a patent from the State. That in accordance with
the requests the surveyor general referred the contest to the District Court of the Seventeenth Judicial District of the State in and for the County of Los Angeles and in pursuance thereof McFadden commenced an action against Banning and certain other parties and it was therein adjudged that Banning was entitled to purchase and to have a patent issued to him and that Banning was entitled to the approval of his survey and application as to all of the lands described in his amendatory application of January 2, 1878, except a certain described tract, and was entitled to comply with the further provisions of the law to purchase and receive a patent therefor.
That Banning, on April 5, 1880, paid the first installment on the purchase price of the land, and, on April 10, 1880, a certificate of purchase was issued to him whereby it was certified that he had in all respects complied with the law and was entitled to receive a patent; that subsequently, on December 14, 1881, another certificate was issued certifying that full payment had been made to the State and that the decree of the court in the contest proceedings had been fully complied with and that he was entitled to a patent, and thereafter on December 16, 1881, a patent was duly issued in accordance with the certificate and the decree of the District Court and duly recorded in the office of the recorder of Los Angeles County.
That the defendants have succeeded to the rights of Banning and have become vested with a fee simple title to the lands paramount to the claim of the State or of any person; that the State is estopped by the judgment of the District Court and the proceedings from claiming any right, title or interest in them or any of them ...