Thomas, to whose interest the relator has succeeded, attempted in June, 1853, to locate a school-land warrant upon the land in controversy. That attempt was made in the manner prescribed by the Legislature, but was ineffectual because the land was then unsurveyed, and not subject to selection. (Hastings v. Jackson, 46 Cal. 234.) On the first of the succeeding October, the land was surveyed by the Government of the United States. On the twenty-fourth of December, 1853, “said location was presented to the Register of the United States Land Office of the district wherein the same was located, and was by him duly accepted and approved.” This is characterized in Hastings v. Jackson, supra, as an unauthorized proceeding, which no law, State or Federal, justified. In Hastings v. Devlin, 40 Cal. 358, the Court said: “We know of no statute of California or of the United States authorizing the performance of the acts set forth in the certificate of Gift, Register of the Land Office at Benicia, of December 24, 1853.” It was accordingly held, in Hastings v. Jackson, supra, that the plaintiff in that case, who is the relator in this proceeding, bore no such relations to the prop*554erty, which was the same in that case as in this, as would entitle him to call in question the title of the defendants, who were the same in that case as in this.
In February, 1857, the defendant Jackson located two school-land warrants upon the land and obtained a patent for it from the State in March, 1863. The land was not listed by the United States to this State until February, 1870. In September, 1871, the United States Land Commissioner canceled Jackson’s location and sent back to him the warrants which he had located on the land. This was done after the land had been listed to the State, and the Commissioner had no power over the subject after that. (Hastings v. Jackson, supra) It does not appear that anything has transpired since the commencement of the action of Hastings v. Jackson, supra, to change the relations which then existed between those parties, or to materially affect their rights in the premises. The grounds upon which the plaintiff in that case claimed relief are those upon Avhich the plaintiff in this case claims relief, and the Court, in that case, passed upon all the questions involved in this, except that it declined to consider whether the State could avoid its conveyance to Jackson because the land was not listed to the State when he obtained the patent for it, or because no notice of his application to locate his warrants upon the land was published as required by law, for the reason that the plaintiff was not in a position to raise those questions.
A point, however, is raised in this case which does not appear to have been before considered, i. e., that the Act of Congress of July 23, 1866, entitled “An Act to quiet land titles in California,” made Thomas’ premature location valid. The argument,as we understand it,is that neither the defendant nor the relator had acquired the title to the land prior to the passage of -that act, and that the equity of the relator, being older, is the stronger.
It must be admitted, we think, that the patent to Jackson was prematurely issued. Section 2 of the Act of April 30, 1857, authorizes the issuance of a patent after the certification of the land located to the State. But we can not see how the State could avoid the patent on that ground. After the land had been certified over to the State, the locator was en*555titled to a patent upon the presentation of a register’s certificate, or other satisfactory evidence that his location had been duly made. A valid location might have been made after the land had been surveyed by the United States, and before the land was certified over to the State. That is, valid in the sense that if after the location was made, the land was certified over to the State, the locator would be entitled to a patent. As between him and the State, his right to the land was fixed by a location upon it in the manner prescribed by the laws of the State. But the title remained in the United States until after the certification of the land over to the State. Before that event, a patent from the State would not convey the title, for the obvious reason that the State had none to convey. Still, upon a valid location, made after the survey, and before the certification by the United States, the locator was in a position to demand and compel the issuance of a patent whenever the land so located should be certified over to the State. Therefore, if Jackson’s location was a valid one, and no patent had been issued to him, he would be entitled to have one issued to him now. We are, therefore, unable to perceive that the State can avoid the patent heretofore issued, on the ground that it was prematurely issued.
Aside from the claim that the relator acquired a prior and superior right to that of Jackson to the land, we find but one other objection to the validity of his location, and that is, that no notice of his application to the Register of the Land Office for a certificate of location was published, as the law required it should be.
The law, however, does not make the validity of the certificate or patent dependent upon the publication of that notice, which was required to be given in order that adverse claimants might be heard in opposition to the application if they chose to be. But they were not concluded by the granting of the certificate, with or without notice. The State certainly was in no way prejudiced by the failure to publish such notice; and no one can take advantage of the omission without showing that he was in some way prejudiced by it. This objection was not pressed at the argument, and does not appear to be much relied on, although it is adverted to in one of the briefs.
*556The point upon which the learned counsel for the relator mainly rely is, that the location of Jackson, although made after the survey of the land by the United States, was equally invalid with that of Thomas’, which was made before said survey, because both were made before the land had been certified by the United States over to the State, and that neither would be valid except for the Act of Congress of July 23, 1866, entitled “An Act to quiet land titles in California.”
If Jackson’s location was invalid, Thomas undoubtedly has the superior right to the land under that Act. But we are unable to discover that Jackson’s location was invalid. It was not made until after the land had been surveyed, and, as we understand the law, a valid selection and location might then be made, and the person making it be entitled to a patent from the State, whenever the land so selected and located should be certified over to the State by the United States. If this view of the law be correct, it necessarily follows that the Act of Congress last above referred to can not be successfully invoked in behalf of the relator. No one will maintain, we think, that that Act could be so construed as to affect a valid location made prior to its passage. It would cure the invalidity of Thomas’ location if no intervening right had accrued in the mean time. But a valid location made between the date of Thomas’ location and the passage of the Act would constitute an intervening right, which it was clearly not the intention of Congress to interfere with.
We think that the demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was properly sustained, and that the judgment should be affirmed.
Judgment affirmed.
Morrison, C. J., and Thornton, J., concurred.