This is a contest between the plaintiff and the defendants, Taylor and Welsh, for the right to purchase swamp-land, referred by the surveyor-general of the state to the superior court of Tulare County for trial. The judgment was in favor of the plaintiff. The defendant Welsh moved for a new trial, and his motion being denied, he, alone, appeals from the judgment, and from the order denying his motion for a new trial.
The land in contest was segregated as “ swamp and overflowed land ” by authority of the United States in October, 1884.
The court found that the plaintiff settled upon the land, and in due form applied to purchase the same on the ninth day of December, 1887, and that the land then was, and ever since has been, suitable for cultivation.
The court also found that the appellant, on said ninth day of December, 1887, filed his application to purchase the land, but that he never was a settler on the land.
1. The principal point made by counsel for appel*44lant is, that section 3 of article 17 of the constitution has no proper application to “ swamp and overflowed lands,” because that class of lands must be considered as unsuitable for cultivation. On this point the very able argument of the learned counsel for appellant is a copy of their argument on the same point in the case of Fulton v. Brannan, 88 Cal. 454, lately decided by this court. As it did not prevail in that case, it is unnecessary specially to reconsider it in this.
2. It is contended that the evidence does not sustain the finding that plaintiff was an actual settler on the land on the ninth day of December, 1887.
The plaintiff testified that he had lived upon the land continuously ever since he built his cabin upon it, “ which was about four or five days after making my application. I first saw the land in December, 1887. I went down from Hanford with a party of four; Mr. Diss, one of the party, showed me the corner-stakes. The stakes he showed me were the southwest corner, the southeast corner, and the half-mile stakes. I returned to Tulare the same afternoon, and swore to the application. I went back to the land in four or five days (about December 16, 1887, I think), and built a cabin.”
H. H. Freeman testified: “I was with plaintiff when he went to look at the land. I helped him build his cabin. We built the cabin four or five days after he applied for the land. As soon as we could get the lumber there we built the cabin.”
There was no other evidence than the above as to the date of plaintiff’s settlement on the land. There was no pretense that appellant ever settled on the land, and therefore no contest as to priority of settlement. If the land was suitable for cultivation, the appellant was not entitled to purchase it, even though plaintiff had not applied for it. (Dillon v. Saloude, 68 Cal. 268.) The evidence tended to prove that plaintiff determined to settle on the land at the time he examined the boun*45claries thereof (December 9, 1887), and then intended to proceed immediately to build his cabin,'[and to complete the same within a reasonable time, and that he commenced to build the cabin as soon as he could get lumber on the land for that purpose, and actually completed it within a week after his application. This, I think, is sufficient to justify the finding as to plaintiff’s settlement. (Gavitt v. Mohr, 68 Cal. 507.)
3. Appellant’s counsel make the further point that the finding that the land was “suitable for cultivation at the time of the trial of this action, and at all times since plaintiff filed thereon,” is not sufficient as against the defendant Taylor, whose application to purchase was filed in April, 1884, and against whom judgment was rendered, for the reasons that his application was “made and filed before the land was subject to application or sale, and that] said land is and was suitable for cultivation.” If this is not a sufficient finding that the land “ was suitable for cultivation ” at the time Taylor made his application, yet it is a sufficient answer to the point made, that there was no privity between the appellant and the defendant Taylor, and that the latter has not appealed from the judgment against him.
I think the judgment and order should be affirmed.
Foote, C., and Belcher, C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.