
    [No. 8473.]
    C. A. BOTSFORD v. MARK HOWELL et al.
    Aeelicatioh to Purchase Swamp Laud. — An affidavit made on an application to purchase swamp and overflowed lands must state directly and positively, and not in the alternative, the facts required hy sec. 3442, Political Code, to he stated in the affidavit.
    Appeal from the District Court, Thirteenth Judicial District, County of Tulare.
    The plaintiff, on the 9th day of December, 1873, filed his application and affidavit in the office of the County Surveyor of Tulare County to purchase from the State, as swamp and overflowed, sections nineteen and twenty, in township twenty south, of range twenty-one east, Mount Diablo base and meridian. Within thirty days the County Surveyor completed a survey and plat, and forwarded duplicate copies, with a copy of the application and affidavit, to the Surveyor-General of the State, who filed the same, but refused to approve of the application, for the reason that a certificate of purchase of the land had been already issued to defendant Howell. The Register of the State Land Office made an order referring the contest to the District Court for trial. The plaintiff claimed that the entry made by the defendant Howell was void, owing to defects in the proceedings. The Court decided the contest in favor of the plaintiff, and the defendant appealed.
    The three thousand four hundred and forty-third section of the Political Code requires the applicant to purchase land to state, in his affidavit, whether there are or are not settlers on the land; and if there are settlers, the affidavit must state that the land has been segregated more than six months.
    
      Sawyer <& Ball, for the Appellants.
    
      Stewart & Greathouse and Henry JSdgerton, for the
   By the Court:

The plaintiff, in his application to purchase the lands, stated, that “ he did not know of any valid claim to the same other than his own, and that there were no settlers thereon, or, if there were, that the land had been segregated more than six months.” The application does not conform to sec. 3442 of the Political Code. The facts required by that section to be stated in the application must be stated directly and positively, and not in an alternative form, as in this case.

Judgment reversed and cause remanded for further proceedings. Remittitur forthwith.  