Southern Pacific Railroad v. McCusker

7 P. 122, 67 Cal. 67, 1885 Cal. LEXIS 546

Opinion

Ross, J.

If in an action of ejectment based on a patent purporting to have been issued in pursuance of the grant by Congress to the railroad company, it is competent for the defendant to attack the validity of the patent on the ground that the land embraced in it was included within the exterior limits of a tract of land claimed as a Mexican grant, and therefore excepted from the congressional grant, as was held by a majority of this court in McLaughlin v. Heid, 63 Cal. 208, it is competent in an action to quiet title based on a similar patent for the defendant to show that the land included in it was swamp and overflowed land, and therefore excepted from the congressional grant. In the case at bar it was admitted by the respective parties that over one half of each governmental subdivision of the land in controversy was and always has been swamp and overflowed land, and thereby rendered unfit for cultivation. The case of McLaughlin v. Held is binding on us, and on the authority of that case we must reverse the judgment and order of the court below.

Judgment and order reversed and cause remanded for a new trial.

McKinstry, J., concurred in the judgment.

McKee, J., concurred.