The action is ejectment, the plaintiffs claiming title through a patent from the State of California. Defendant Jones is in possession of the land, and claims right thereto as a pre-emption settler. The jury found special facts and a general verdict for defendant Jones. The court below set aside the general verdict, and gave judgment for plaintiffs upon special findings. The land in lieu of which the land in dispute was applied for by the assignor of plaintiffs was at the date of the application within the exterior limits of a Mexican grant, the final survey of which has never been confirmed. (FindingKo. 10.) The listing of the land in controversy to the State, therefore, did not transfer the title of the United States. The land in lieu of which the land was selected was not then lost to the State. (Rosecrans v. Douglass, 52 Cal. 213.) The first section of the Act of Congress of March 1st, 1877, hoAvever, provides: “ The title to the lands certified to the State of California, knoAvn as indemnity school selections, Avhich lands were selected in lieu of the 16th and 36th sections, lying Avithin Mexican grants, of which grants the final survey had not been made at the date of such selection by said State, is hereby confirmed to said State in lieu of the 16th and 36th sections, for which the selections were made.”
The third section of the same act provides: “ The foregoing confirmation shall not extend to the lands settled upon by any actual settler claiming the right to enter not exceeding the prescribed legal quantity under the homestead or pre-emption laivs ; provided, * * * that the claim of such settler shall be presented to the register and receiver of the district land office. *464together with proper proof of his settlement and residence, within twelve months after the passage of this act,” etc.
The only action of defendant after the refusal of his offer and payment in 1872 was limited to an ex parte motion, asking for a hearing, in September, 1876. He did not within a year, nor at any time after the passage of the Act of Congress of March 1st, 1877, present his claim or proofs to the district land officers. Judgment affirmed.
Ross, J., Thornton, J., and Sharpstein, J:, concurred.
McKee, J., concurred in the judgment.