A brief history of this land, gathered from the transcript, will be of service in ascertaining the rights of the parties.
At all times, from a day prior to the acquisition of California until December 25th, 1875, the land in controversy was claimed by the holders of the Mexican grant of the Kancho Sausal Kedondo to be within the exterior lines, and to be a part of the rancho. Hancock, as Deputy United States Surveyor, made a survey of the rancho, by which survey the land in controversy was excluded. As County Surveyor, Hancock made a survey of the land by section and subdivision.
1857. —June 23rd, school-land warrant No. 156 was located on behalf of the defendant Merrill by Hancock, County Surveyor, on the east one-half of the northwest quarter of section 21, township 2 south, range 13 west, S. B. M.
1858. —The Hancock survey of the rancho was rejected by the United States Surveyor-General.
1868.—February, Hansen, Deputy United States Surveyor, made a survey of the rancho by order- of the Surveyor-General, to segregate the grant from the public lands.
1868.—April 27th, plat filed in the United States land office.
1868.—May 12th, selected by the State, in the office of the register of the United States land office, for Merrill, under the warrant No. 156.
1868.—May 27th, plat withdrawn by order of the land department of the United States.
*5621868.—July 3rd, the United States Surveyor-General directed Thompson, Deputy United States Surveyor, to resurvey the rancho. In the same year, the resurvey was made.
1870. —Plaintiff Wilkinson went into possession, where he has remained ever since, using the land, and has made substantial and valuable improvements.
1871. —November 21st, plat refiled.
1872. —March 12th, plat again withdrawn, and survey suspended.
1872.—June 15th, order of the land department relieving the suspension.
1872.—July 27th, application by Hancock, on behalf of Merrill, to relocate school-land warrant No. 156.
1875. —December 25th, survey of the Rancho Sausal Redondo finally approved by the commissioner of the general land office, which determined that the land was not within the limits of the rancho. This was, substantially, the Hansen survey.
1876. —February 8th, plaintiff applied to purchase the land under the laws of this State.
1876.—March 20th, the land was listed to the State.
Merrill has been a non-resident of this State since 1858; there is no evidence that he ever saw the land.
Under this state of facts, neither party could acquire any title, or foundation of title, from the State prior to December 25th, 1875. Until that time, it had not been determined whether the land would be a part of the Mexican grant or a part of the public domain. Until such determination, a school-land warrant could not be located upon it, and the acts of officers, Federal or State, in that direction, would be without authority, and therefore void. The fact that officers assume to act and issue papers purporting to convey the title of the Government, Federal or State, where they have no authority, does not aid their grantee. Merrill is not aided by the Act of July 23rd, 1866 ; that act relates to selections theretofore made of any portion of the public domain; the land in controversy was not, then, a portion of the public domain open for selection.
As between the parties to this controversy, Merrill has no right to purchase the land from the State.