The laws of California authorized the location on unsurveyed lands (sec. 5, Act of 1861, p. 219); but the laws of the United States only authorized lieu lands to be taken from among the lands surveyed by the United States.
This defect is cured by the Act of Congress approved July 23d, 1866, entitled “An Act to quiet land titles in California.”'
The first section of that act provides: “That in all cases where the State of California has heretofore made selections of any portion of the public domain, in part satisfaction of any grant made to said State by any Act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be and hereby are confirmed to said State.”
This act operates to cure the defect that would otherwise have existed in the plaintiff’s title. But for this confirmation the location would have been void, because made of unsurveyed lands, and it was to cure just such defects that the Act of 1866 was passed.
The defendant’s settlement was not made until more than five months after the Act of 1866 was passed, and he therefore is not protected by its provisions, and the proviso, in terms, ap*70plies only to those whose rights attached prior to the passage of the act.
In short, the right of the State to convey the land to the plaintiff had become perfect before the defendant settled on the land, and he could therefore acquire no right as against the State whatever.
The point is made that by the act of the Legislature of California, approved April 22d, 1861, application could not be made for less than one hundred and sixty acres, and that as but forty acres were listed to the State, the application was invalid.
We deem it a sufficient answer to this to call attention to the fact found, that the application was for more than one hundred and sixty acres, but as other rights intervened before the listing to the State to the greater portion of that applied for, and only the forty acres in question was subject to such location, that alone could be conveyed to him by the State, and the application would be valid to that extent.
Moore, Laine, Delmas & Leib, for the Respondent.
The selection, being for unsurveved land, was void. ( Grogan v. Knight, 27 Cal. 515.) But it is insisted that by virtue of the Act of Congress of July 23rd, 1866, the title of the State is confirmed. But the State law in force in 1861 did not permit the selection of less than one hundred and sixty acres. (Sec. 4, Stats. 1861, p. 219.) The land selected was reduced to forty acres, and the Act of Congress did not confirm the title to the forty.
The Act of July 23rd, 1866, did not help this selection in whole or in part.
The proviso to the first section of the act limits its confirmatory scope; and this selection .was within that proviso, and was, therefore, not confirmed, for the reason that the larger portion of the selection was granted to the railroad company before the date of the acts, and another portion was covered by pre-emption claims; hence there was no confirmation of the selection.
This township was surveyed in 1865 by the United States, and under the Act of 1866, supra, it was the duty of the State *71officers to take action in the premises. (See second section of Act of July 23rd, 1866.) This was never done.
By the Court :If the land in controversy was properly listed over to the State by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, the plaintiff is entitled to a recovery. The selection made in 1861 was made in accordance with the laws of the State then in force, and the Register of the proper Land Office was, in the same year, notified of such selection; and these acts brought the case within the first and second sections of the Act of Congress of July 23rd, 1866, to quiet land titles in California, unless the fact that the amount of land included in the selection was reduced below one hundred and sixty acres by reason of the grant of land to the Western Pacific Railroad, and by the allotment of certain other portions of the lands to pre-emption claimants before the passage of the act of Congress prevented the act from having any operation upon the remaining portion of the lands included in the selection — the forty acres in controversy in this case. We are of the opinion that the act confirmed to the State the forty acres in controversy, and that the lands were properly listed over to the State.
Judgment reversed and cause remanded, with directions to render judgment on the findings for the plaintiff.