The Court did not find the time of the filing with the Register of the Marysville Land Office of the plat of the survey *608of the township in which the lands in controversy are situated, but the evidence tending to show the time is recited in the finding. That consisted of the unsigned indorsement on the plat: “Filed in Marysville'Land Office, December 5th, 1855 ”—the same indorsement which was in controversy in Megerle v. Ashe, 27 Cal. 322, and the subsequent appeal in the same ease. The Court also found that the [Register and Deceiver, on the 15th of February, 1856, published a notice requiring all persons claiming rights of preemption to file their declaratory statements on or before the 15th day of May, 1856. This finding is attacked, as unsupported by the evidence. The record contains no evidence tending to prove that fact. Both parties proceed on the theory that the plat was filed in the Begister’s office. The indorsement, though slight evidence—as was held in Megerle v. Ashe, 33 Cal. 74— will, in the absence of other evidence, be taken as fixing the time of the filing of the plat. Poppe’s declaratory statement having been filed on the 16th of April, 1856—which was more than three months after the filing of the plat—came too late to preserve his preemption claim as against one who had, in the meantime, taken the necessary steps to acquire the title to the land.
Poppe insists that the indorsement on the plat was not given in evidence; but, as he has not appealed, he is not in a position to allege that the Court erred in reciting the indorsement in the finding.
The purpose of the suit brought by Athearn against Poppe is, to compel Poppe to convey to Athearn the legal title to the premises in controversy, on the alleged ground of fraud on the part of Poppe in perfecting his preemption claim, and, in pursuance thereof, in procuring a patent from the United States. A conclusive answer to the position of Athearn is, that he claims not as a preemptioner, but as a purchaser from the State; and as such he is not entitled to a patent from the General Government, and, therefore, cannot *609claim the benefit of the patent issued to Poppe. That suit was properly dismissed.
The questions discussed at the last argument were whether the surrender of the land warrant and the issuing of the Register’s certificate were authorized by any law then in force, and whether a location so made authorized the issuing of a patent. The Commissioner of the General Land Office has authority to make regulations respecting the disposal of the public lands, and such regulations, when not repugnant to the Acts of Congress, have the force and effect of laws. In the letter of the Commissioner of the 14th of February, 1854, addressed to the Register of the Land Office at Benicia, he refused to return the warrant to the person who had located it on a tract of land, and directed the Register in such case to issue to the person locating a warrant, a certificate of location. The Commissioner prescribed the form of the certificate, and that form was adopted in this instance, and generally in all other cases of the location of warrants since that time.
Those instructions recognize the surrender of the warrants as the correct practice, and make the certificates issued thereupon by the Register legal and valid. Those certificates of location become the basis of the patents issued by the State. Leaving out of view the question whether the patent should issue before the lands have been listed to the State by the Land Department—as the question has not been discussed in this case—there seems to be no valid ground for saying that the Register’s certificate is not sufficient to authorize the proper officers of the State Government to take the requisite steps for the issuing of the patent. The provisions . of the Act of May 3d, 1852, for the survey of the lands by the County Surveyor, and all the proceedings founded on such survey, are applicable only to unsurveyed lands. The observance of those provisions would be useless and vain where the lands have been surveyed by the United States.
*610Judgment in Athearn v. Poppe affirmed, and judgment in Poppe v. Athearn reversed, and cause remanded for a new trial.