relation to the person is essentially true in relation to dumb animals and other kinds of property, though, perhaps, the rule would be applied in the latter case with less strictness. It must be so, that an unnecessary injury negligently inflicted in these and kindred cases is wrong, and therefore unlawful."

Cline vs. C. P. R. R. Co., supra, was an action to recover damages for personal injuries sustained by the plaintiff by reason of his having been, as alleged, wrongfully expelled from the cars of defendant by the conductor while the cars were in motion. The Court there said: "Although the plaintiff was wrongfully upon the cars, the conductor was bound to exercise reasonable care and prudence in removing him. The rule that the plaintiff cannot recover if his own wrong as well as that of the defendant has conduced to the injury which he has sustained, is confined to cases where his wrong or negligence has immediately or proximately contributed to the result. We had occasion to consider this question in the case of Needham vs. San Francisco and San Jose Railroad Co. (post), and we there reached the conclusion just stated. If the plaintiff be in the wrong, yet his wrong or negligence is remote-that is, does not immediately accompany the transaction from which his injury resulted-the defendant cannot excuse himself on the score of mutuality, nor absolve himself from his obligation to exercise reasonable care and prudence in what he may do. In getting upon the train, while it was going at a speed of ten miles an hour, the plaintiff was negligent even though he attempted to do so as a passenger, with the intention to pay a fare; and if he had failed in achieving a safe landing and had fallen in the attempt, no blame or liability could have been charged to the account of the defendant. If, as was doubtless the case, he got upon the car, as boys sometimes will, with intent to enjoy the stolen pleasure of a free ride to Front Street, he came as a trespasser, and doubtless the defendant, acting contemporaneously, could have legally prevented him from getting on the car by the use of such force as may have been requisite, without becoming legally responsible or morally to blame for any injury which he might have sustained. And if he succeeded in getting upon the car without opposition, the defendant doubtless had the right to eject him by force, if force was necessary, but it was bound to exercise the right with ordinary care and prudence, and it had no right to eject him under circumstances which would endanger his personal safety. If the train was going at a speed which would render it unsafe for him to leave the car, it was the duty of

Al

the defendant, if determined to put him off, to stop or slow up' sufficiently to allow him to descend with safety by the exercise of reasonable care and prudence on his part. though his entry upon the car was a trespass, yet if it was an accomplished fact before the conductor attempted to interfere, his entry did not directly conduce to the injury which he sustained, but was, in the sense of the rule under consideration, only its remote cause, and did not, therefore absolve the conductor from the duty of observing reasonable care and prudence in putting him off the train.'

In our opinion, an application of the principles announced in these cases to the facts of the case before us, renders the defendant liable for the injuries sustained by the plaintiff. The instructions of the Court below were in accordance with these views, and the judgment and order are therefore affirmed.

We concur in the judgment: McKinstry, J., McKee, J.

IN BANK.

[Filed January 4, 1881.]

No. 7093.

M. J. O'CONNOR, APPELLANT,

VS.

GEORGE W. FRASHER ET AL., RESPONDENTS.

[NOTE. For syllabus of this case and opinion of the Court, see No. 24, page 978.]

DISSENTING OPINION.

I dissent for the reasons hereinafter stated:

1. The lands in controversy are lands attempted to be located and patented as lieu lands, so called, and are within the exterior lines of what had been claimed to be the Rancho Sausal Redondo, a Mexican grant. At least two surveys of the grant have been made, and there was a controversy between the owners of the grant and others as to whether the lands involved in this suit and other lands were or were not to be included within the final survey and confirmation. Not until 1875, was the survey of the grant finally approved by the Commissioner of the General Land office; which survey excluded the lands from the grant. Previous to that time, as the controversy progressed, plats and surveys had been filed and withdrawn. Plaintiff claims title under a State patent. He was never in possession. In my opinion the

State patent, issued before 1875, and based upon proceedings of the various land officers before 1875, is void, and can be questioned by any person in possession. Prior to 1875, the State had no title to grant, and the assumption by its officers of the power to grant, and the location and patent, were void

acts.

2. The several defendants defend each in his own right. The Court below found separately in regard to the defendants substantially as follows:

"That about the sixth day of March, 1868, W. S. Rosecrans procured for his own benefit a great number of men to make applications to purchase the lands from the State of California described in plaintiff's complaint; that said applications purported to have been made under the provisions of an Act entitled 'An Act to provide for the sale of certain land belonging to the State,' approved April 27, 1863, and none of said applications were signed by any person.

"That each of said applicants conveyed by deed to one W. S. Rosecrans the lands for which he so applied, some of which deeds were made and executed immediately before, some at the time of, and others immediately after the applications were made as above. That neither the said applicants, nor any one in their behalf, ever paid the State of California for said applications or for the execution thereof, all expenses connected therewith being wholly borne by said Rosecrans. That the said applications and deeds were all one and the same transaction, and were wholly fraudulent and void ab initio, and were obtained in the behalf of said Rosecrans, who paid each applicant a sum of money therefor, and in fraud of the provisions of said Act of April 27, 1863. That said applicants were not informed by said Rosecrans, or any other person, of the contents of said applications, and that they did not read the affidavits accompanying said applications, nor were they informed by any officers authorized to take acknowledgments, or any other person, of the contents thereof, and were not sworn to any oath or affidavits connected therewith.

"That the application of Robert Thompson for the land described in defendant's answer was one of said fraudulent applications, and was made May 1, 1868, for the benefit of said Rosecrans, and was fraudulent; that said application was presented to the State Locating Agent, and by him accepted and filed on the first day of May, 1868.

"That said application was not accompanied by an affidavit of three disinterested persons, stating among other things, that said applicant was a resident of the State, and

that the lands were unoccupied by any person except the applicant, as required by said Act of April 27, 1863.

"That said applicant omitted and neglected to file in the office of County Recorder of the county in which the lands were situated, a description of the lands applied for, with a certificate of the oath or affirmation endorsed thereon, as required by the twenty-ninth section of said Act of April 27, 1863.

"That plats including these lands, purporting to be township plats, were made and filed for the first time in the United States Land Office at San Francisco, April 22, 1868; that said plats were re-called by the United States SurveyorGeneral, May 26, 1868, and were never again filed in said Land Office.

"That by reason of said application, Leander Ransom, State Locating Agent of the State of California, on May 27, 1868, pretending to act under and by virtue of law and in part satisfaction of the grant by the United States to said State, of other lands in lieu of the sixteenth and thirty-sixth sections, for school purposes, under an Act of Congress approved March 3, 1853, entitled 'An Act to provide for the survey of the public lands in California, the granting of preemption rights therein and for other purposes,' and of an Act of Congress approved July 23, 1866, entitled 'An Act to quiet land titles in California,' selected and located the lands described in said application, for the State of California.

"That the selection and location of said land was the result of and made in satisfaction of said application, and corresponded with it in number, and in the description of the land applied for.

"That the United States Suveyor-General for the State of California never furnished the State authorities with a list or lists including any of the said sixteenth or thirty-sixth sections, or any part thereof, used by said State Locating Agent in said selection and location as a basis of selection, as required by Section 6 of said Act of Congress, approved July 23, 1866.

"That thereafter, by reason of said application, selection and location, to wit: On the twenty-third and twenty-fourth days of November, 1871, and long prior to the lapse of the ninety days after filing of the township plats including said lands in the United States District Land Office, the Commissioner of the United States General Land Office, and the Secretary of the Interior, inadvertently and by mistake certified and listed said lands to the State of California, and that the lists including said lands were identical with said applica

tion, selection and location in number, description of land selected; and none of said land thus selected was of the character contemplated by any act of Congress, or intended to be granted thereby.

"That on or about the twenty-fifth day of August, 1869, before said lands were legally surveyed, and when there was no township plat including said lands on file in the United States District Land Office, said W. S. Rosecrans made application to the Surveyor-General of the State of California, John W. Bost, to purchase and locate all of said described lands in the applications mentioned in the second finding, which were with them identical in description of land applied for, and the sixteenth and thirty-sixth sections used as a basis of said application.

"That on the twenty-seventh day of August, 1869, Robert Gardiner, signing himself as Surveyor-General of the State of California, accepted said application at a time long prior to his election or qualification for said office, and that said application was never accepted by any other person.

That thereafter-to wit, on the tenth day of February, 1872-Robert Gardiner, then Surveyor-General of the State of California, basing his approval upon the recital therein― to wit: That the location has been made by the then Locating Agent, in the name and for the benefit of the State of California, at the Los Angeles District, in the city of Los Angeles, with the consent of List No. 1 of said district, bearing date the twenty-fourth day of November, 1871,' approved each of said applications.

"That thereafter, and in consequence thereof, certificates of purchase and patents issued from the State of California for said lands to W. S. Rosecrans.

"That neither the plaintiff, M. J. O'Connor, nor said Rosecrans, nor the said Robert Thompson, nor either of them, were ever in the actual possession of said lands, or any part thereof; or ever had any improvements thereon; or ever had any portion thereof fenced or enclosed in any way; and that all of said lands are rich agricultural lands, and that the plaintiff and his grantor have every year, since 1872, leased the land in controversy to persons who have used the same for grazing purposes, pasturing sheep thereon, and have so used it until the defendant entered thereon.

"That the plaintiff, M. J. O'Connor, bases his claim to said lands, and in no other way than by a deed to the same from W. S. Rosecrans and the above procedure herein found. "That the township plats, including said lands, were, on the twenty-first day of November, 1871, filed for the first