United Land Ass'n v. Knight , 85 Cal. 448 ( 1890 )

Fox, J.

This case was first heard and an opinion thereon filed in Department. Subsequently a rehearing in Bank was granted, and after argument a decision was filed January 2, 1890. This was followed by divers petitions for a second rehearing, representing that tile case was one of great public importance, involving the validity of land titles to a very considerable, and what is now a very valuable, portion of the city of San Francisco; and in view of the alleged importance of the questions involved, a rehearing was granted. Upon this hearing elaborate oral arguments have been made, and all who desired have been permitted to file printed briefs and arguments, all of which have been carefully considered, and we are still constrained to adhere to the conclusion first reached in Bank, and announced in the opinion written by Mr. Justice Paterson, post, p. 474.

This is not, as assumed on behalf of appellant, a case of conflict between two parties, both claiming under the government of the United States; nor is it a case where one is claiming under patent issued by the government of the United States, and the other is a mere naked trespasser, failing to connect, himself with any paramount source of title.

The defendant, and those who are situate like him, and on whose behalf argument is here made, claim under the pueblo of San Francisco. That pueblo claimed and derived its title, not under the government of the United States, but under the government of Mexico. Its grant was not a special one, made by the supreme legislative authority of the sovereign state, but was one made by the ministerial officers of the government, under, and necessarily in conformity with, its general laws. Necessarily so, for if the ministerial officers exceeded the authority conferred upon them by law, then their act was void. It must, therefore, be assumed that the grant was only such as the ministerial officers were authorized by law to make.

The patent of the United States, invoked by the appellant, is not an original grant, does not emanate from the source of title, but is a mere acknowledgment that the pueblo had title from the Mexican government, — the predecessor of the United States,'—and a release of all claim on the part of the United States to the property found by its judicial tribunals to have been so vested in the pueblo. The patent was not necessary to invest the pueblo with title, for its title existed at the cession of the territory. It was recognized by the decree of final confirmation (cited in the former opinion), and as ¿shown by that decree it was of a fixed and definite quantity of land, -with its boundary on three sides fixed and established by the terms of the original grant, and marked by the hand of nature as limited by the shores of the sea. It required to be surveyed, for one purpose only,— that of so fixing and establishing the boundary which was left undetermined by the original grant, as to secure the given quantity, exclusive of that which w’as held by title paramount within the natural boundaries so fixed and the survey so made. The patent was only evidence of the pre-existing title. (Waterman v. Smith, 13 Cal. 419.) The only purpose of a survey was that of establishing the one undetermined line, the southern line, of the body of land to which the pre-existing title should attach.

In the case of this pueblo, it undoubtedly became necessary, in order to secure quantity, to make a general survey of the whole, and also a survey of the several parcels within the exterior boundaries, which were confessedly held by adverse claimants holding under paramount title; but this necessity and power existed only for the purpose of ascertaining and determining the one undetermined and uncertain boundary line, — that on the south. The right to make that survey, and establish that boundary, belonged to the political department of the government, and could not be exercised by the courts. But the court could ascertain and fix the position of the natural boundaries wdiich were designated in the grant, and did do so. While the courts could not and cannot interfere with the action of the political department of the government in fixing the one boundary wdiich was left undetermined by the grant as finally confirmed, they must determine whether the prior rights of third parties have been interfered with by the survey and patent issued thereon. While the survey and patent are conclusive upon the courts in actions of ejectment, they are so only when not in conflict wdth the prior rights of third persons, and in such actions their inconclusiveness can be asserted to the extent essential for the protection of such prior rights. (Moore v. Wilkinson, 13 Cal. 486.)

The patent, so far as it is construed as a conveyance, is to be construed only as a quitclaim, releasing to the patentee such interest as the United States possessed in the land conveyed by the original grant, and it takes effect by relation at the time when the proceedings were originally instituted before the board of land commissioners for the confirmation thereof. As a record of the government, it is evidence that the claim asserted was valid under the laws of Mexico. (Yates v. Smith, 38 Cal. 71.) But it is valid as such record only to the extent that it conforms to the decree of the judicial department of the government in reference to those matters upon which the judicial department were empowered to decide; that is to say, the decree of confirmation, with reference to the fixed natural boundaries, and to the survey made by the political or ministerial department, establishing the only boundary which was not fixed and determined by the decree of confirmation. As a deed it can convey nothing which the government had not the power to grant or confirm at the date of filing the petition for confirmation. (See Doolan v. Carr, cited by Mr. Justice Paterson, and cases therein cited.) It certainly could convey nothing which was not at that time vested, and never afterward became vested, in the United States. And this question may be inquired into, upon collateral attack, in an action of ejectment.

In Smelting Company v. Kemp, 104 U. S. 641, the supreme court of the United States, in passing upon this question of collateral attack upon a patent in an action of ejectment, says: “If they [the lands embraced in the patent] never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such case, the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.

In the later case of Wright v. Roseberry, 121 U. S. 519, the same cóurt again considers the question, and not only quotes and approves the foregoing, but also the following passage: “A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale, or dedicated to special purposes, or had been previously transferred to others. In establishing any of these particulars, the judgment of the department upon matters properly before it is not assailed, nor is the regularity of its proceedings called into question; but its authority to act at all is denied, and shown never to have existed.”

And still later, in Doolan v. Carr, 125 U. S. 618, the same court again says: “A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lauds, .... or that they had been previously transferred to others.”

In view of these recent and oft-repeated decisions of the court of last resort to which the question can be carried, there can no longer be a doubt about the right of the courts, even in actions of ejectment, when the parties present rely, as in this case, upon a patent from the United States, to inquire as to whether or not the description given in the patent includes land which the government or its officers had no power to convey.

This being so, then, when the patent was offered in this case, the plaintiff had a right to challenge its validity, not perhaps as to everything that it purported to convey, but as a conveyance of a particular tract for the recovery of which the action is brought, on the ground that that tract was not embraced within the lands covered by the grant which the patent was intended to evidence, and was not on land which the government or its officers had the power to make valid conveyance. Being so challenged, it is found and conceded that the land lies, not on or near the southern boundary of the four leagues for which the grant is confirmed, — the only boundary which the ministerial officers of the government were required, authorized, or empowered to establish, — but midway between the northern and southern extremities of said four leagues, and near to but outside of the eastern boundary thereof, as said boundary had been fixed and established by the laws of the nation making the grant, and found and confirmed by the judicial department of the government in its decree of confirmation.

Was it outside of that boundary? It is found and at the argument admitted to be below ordinary high-water marie, in a navigable arm of the bay of San Francisco. If so, it was outside the boundary line of the grant, under the laws of the country by which the grant was made. Under the laws of that country, these lands below ordinary high-water mark constituted the beach, or seashore, and “ with respect to the ownership, it pertains to the nation which is mistress of the country of which it forms a part, and, wdth respect to use, to all men.” (Leyes, 3, p. 6, tit. 28, part 3.) The king could not alienate such lands. (See New Orleans v. United States, 10 Pet. 726, and other authorities cited by Mr. Justice Paterson.) That the government did not alienate them is established by the decree of confirmation quoted in the former opinion, by which decree it is expressly declared that the lands so granted, and of which confirmation is decreed, are bounded on the “ north and the east by -the bay of San Francisco, and on the west by the Pacific Ocean.” That the ministerial officers of the government were bound by the description given in that decree, so far as the decree did give definitive boundaries, and had no right to include in the patent lands outside of such boundaries, is abundantly established by the authorities cited by Justice Paterson in his opinion.

Again, the land in dispute was not land which the government had the power to grant at the date of the filing of the petition for confirmation. Not having been granted by the Mexican government before the conquest, it remained the property of the sovereign. The petition for confirmation was not filed until long after the admission of California into the Union. Immediately upon such admission, the state, by virtue of her sovereignty, became seised of the land, the same being tideland of the bay of San Francisco. The land did not, therefore, belong to the United States, and even Congress had no power to grant it to another. Quoad this land, the patent is absolutely void, for the reason given in Polk’s Lessee v. Wendal, 9 Cranch, 87, cited on behalf of the appellant; the government in whose behalf the patent was issued had no title to the thing granted.

It is claimed on behalf of appellant that the doctrine of stare decisis should be applied to this case, and that# when so applied, the question here involved is res adjudicata, under the decision of this court in People v. San Francisco, 75 Cal. 389. We do not think so. That case was decided on demurrer to a complaint which admitted on its face that the patent was in “ due form of law”; was based upon a survey certified to have been made in strict conformity with instructions of the commissioner of the general land-office, which instructions had been given under the directions of the Secretary of the Interior; was issued under the great seal of the United States, and purported, by virtue of the authority of said decree of confirmation, and in pursuance thereof, to grant and convey to the city of San Francisco the land embraced and described in the plat and survey, and including the premises within the exterior boundaries thereof. (Seepage 393.) The decree itself is also copied in full into the opinion (see page 392), but did not there, as here, appear to have been a portion of the patent. It shows upon its face that the grant as confirmed was bounded on the east by a natural boundary, to wit, ordinary high-water mark of the bay of San Francisco (as the same existed at the date of the conquest of the country, namely, the 7th of July, 1846). This decree has been accepted and become final, and settles the question for this and all other courts, and for all other officers and tribunals, as to what was included in the grant, so far as this eastern boundary was concerned. But the court on demurrer "was bound to take, as true, the allegation of the complaint, that the survey was made and patent issued “by virtue of the authority of said decree, and in pursuance thereof,” and that it did “grant and convey to the city of San Francisco the tract of land ” embraced" and described in said plat and survey, and “including the premises within the exterior boundaries thereof.” Taking these allegations to be true, the bill being quia timet, affirmance of the judgment which had been rendered for defendant on the demurrer necessarily followed.

But it is insisted that the case did not go off upon the proposition that these allegations must be taken as true, but the court considered and determined the broad question of the conclusiveness of the patent, as the same is here and now presented. This seems to have been the course pursued by the court, and it furnishes the strongest possible argument for refusing to accept the opinion then given as conclusive of the case at bar, for it was one not necessary to the decision of-the case.

But disregarding that point, the court was not then convincing in its reasoning, or happy in its selection of authorities in support thereof. Neither of the three recent decisions of the supreme court of the United States cited above, and referred to in the opinion of Mr. Justice Paterson, were cited by counsel or referred to by the court. It is hardly possible that the conclusion of the court in People v. San Francisco, 75 Cal. 389, as to the conclusiveness of the patent as a conveyance of land below ordinary high-water mark, could have ever been reached if the attention of the court had been called to the cases of Smelting Company v. Kemp, 104 U. S. 641; Wright v. Roseberry, 121 U. S. 519; and Doolan v. Carr, 125 U. S. 618. In fact, the two later cases were decided after the briefs were filed in People v. San Francisco, 75 Cal. 389.

One of the cases upon which the court rests it conclusion in People v. San Francisco, 75 Cal. 389, is that of Cassidy v. Carr, 48 Cal. 339. In that case the claimant held under a Mexican grant, held to be a perfect grant. It was confirmed to the extent of two leagues, and no more, although he claimed to have received juridical possession of a larger quantity. He took no appeal. In due time his two leagues were surveyed off, the survey approved, and patent issued. He accepted the patent, and then the question in the action was, whether he could still claim title to lands not included within the survey given in the patent, but claimed to have been included within the limits of his original juridical possession. The court held, that, having accepted the patent, he was estopped from claiming lands outside the boundaries of the description therein given. The question was so different from the c*ne here involved that we are unable to see how the decision constitutes any authority upon this question whatever.

In Moore v. Wilkinson, 13 Cal. 487, another of the cases relied upon in support of that opinion, the grant was for merely four square leagues, but within a tract almost without limit as to extent or a western boundary, and the order was that “the judge who may give possession will cause the same to be measured according to the ordinance, leaving the remainder, which may result to the nation for its proper uses.” Upon confirmation, approved survey, and patent, the same being for four leagues and no more, the question was, whether persons without title, but claiming to have settled within the exterior boundaries of the tract from which the four leagues was to be taken prior to the confirmation and survey, and to have filed declaratory statements as preemptors, could attack the patent on the ground that the patented lines did not conform to the juridical possession. The court held that in such a case they could not; that the patent was conclusive of the validity of the grant, of its confirmation, of the survey, and its conformity with the confirmation, and of the relinquishment to the patentee of all the interest of the United States in the land patented. It could hardly have held otherwise, for the survey was within the natural exterior boundaries named in the grant, of which, as in this case, natural exterior boundaries were given on three sides; and within those natural exterior boundaries no valid pre-emption claim could be made until survey and segregation of the grant. But the case is in no sense parallel to the one at bar, or the one in support of which it is cited.

Chipley v. Farris, 45 Cal. 539, is another of the cases cited in support of that decision. It, like that of Cassidy v. Carr, was a case where the grantee, having received and accepted his patent, was seeking to claim lands excluded from the patent. It was not authority for the case in which it was cited, and is not in this.

Teschemacher v. Thompson, 18 Cal. 11, 79 Am. Dec. 151, is also cited and relied upon as authority to the conclusiveness of the patent, and also that the Mexican government had power and authority to make grants of these lands. As we read that case, it does not support either of these propositions. The lands in controversy there were not within the boundaries of or near any pueblo or other probable seat of commerce; the great body of the land in controversy was not below ordinary high-water mark, but salt marsh, — lands above ordinary and below extraordinary high-water mark. Incidentally it was claimed, and the supreme court held, that in that case the boundary of the Mexican grant ran to ordinary low-water mark, and that the seashore having been granted by the Mexican government at that point, the state took in subordination to the grant, and that her rights were postponed to, and must abide the event of, the action of the general government in the settlement of that private land grant, and that the patent was conclusive of the fact that the land had so been granted by the former government. In that case, also, the survey was one approved by the judicial department of the government. Here the government, through its judicial department, has determined that the lands below ordinary high-water mark were not included in the grant, and directed that the survey be made accordingly. Hot being so included, and the court having so decreed, it follows that the rights of the state were not subordinate to, or postponed to the settlement of, the grant to the pueblo.

The same may be said of Ward v. Mulford, 32 Cal. 365, also cited in support of that decision. It was almost on all fours with Teschemacher v. Thompson, and was decided on the authority of that case. In that case, as in'the other, both the grant and the survey thereof had been confirmed by the judicial department of the government, and included the salt marsh. The court properly held that where the Mexican government had, before the conquest, granted those lands, the rights acquired by California by virtue of her sovereignty were subordinate to the grants so made. There is nothing in the conclusion reached now, or on the former hearing of this case in Bank, in conflict with these authorities. The difference is found in the facts. There it was adjudged in and by the decree of confirmation that the lands in dispute had been granted by the Mexican government before the conquest; here it has been adjudged and determined in and by the decree of confirmation that they had not been so granted. The adjudication in both cases is final.

The only remaining case cited in support of the opinion in People v. San Francisco is that of Leese v. Clark, 18 Cal. 574, and 20 Cal. 425. All that was decided in that case bearing upon the case at bar was, that “the defendants, taking whatever interest they possess in subordination to the future action of the government .... in determining the location of the older grant, are in no position to question these proceedings” ; and that “the term 'third persons’ refers not to all persons other than the United States and the claimants, but to those holding independent titles arising previous to the acquisition of the country.” Both of these propositions may be accepted as true, but they do not militate against the view we have taken of this case. The plaintiffs in this case, it is true, do not claim by virtue of an older grant from the Mexican government. What they claim is, that the locus in quo was never granted, and under its laws could not have been granted, by the ministerial officers of the government of Mexico; that this fact is established, not only by reference to the laws of Mexico, but also by the final adjudication of the courts of the United States in and by the decree of confirmation of the grant which was made; that not having been granted, it remained, at the date of the conquest, the property of the nation, and passed as such to the United States; that the United States having made no grant thereof, upon the admission of California into the Union, September 9, 1850, it became the property of the state by virtue of her sovereignty, and the United States could not thereafter make a valid grant thereof. The state did not take in subordination to the older grant, and her rights were not postponed until the settlement of the rights of the older grantee, for there was no older grant in any manner affecting the property; none which included it even within its exterior boundaries. And on all the authorities this conclusion seems to be correct.

Teschemacher v. Thompson and Ward v. Mulford maybe accepted as authority for the proposition that the Mexican government could, and sometimes did, make grants covering the salt marsh lying between the high lands and the seashore,—the lands between the high-water mark of extraordinary tides at the full of the moon, or spring-tides, and the ordinary high-water mark of the tides in their daily ebb and flow; and even sometimes extended the grant'below ordinary high-water mark; but-that fact does not prove that she could or ever did make grants of lands lying on the seashore, below the ordinary high-ioater mark of the daily ebb and flow of the tides, within the boundaries of a pueblo. In People v. San Francisco the court says: “No authority has been cited in support of the statement that, by the law of Mexico, tide-lands could not be included within pueblo lands.” That may have been true, but the court failed to mark the distinction between “ tide-land,= ” and “ seashore ” ; between lands made productive by the occasional overflow of the tides, and lands made barren by the regular and daily overflow thereof. Of the one it had before it two examples of the fact, established by decree of the federal courts, that the Mexican government could and sometimes did grant them; of the other, no example has ever been furnished where the government made such a grant within-a pueblo. That it did not make a grant of such lands in this case is attested by the decree of confirmation. In support of the proposition that a pueblo could not own laud below ordinary high-water mark, the court was then cited -to, and we again cite, Dwinelle’s Colonial History of San Francisco, addend. 42; Wheeler’s Land Titles of San Francisco, 13; Civ. Code of Mexico, art. 802; Domat, b- 7, tit. 8, sec. 1, art. 1; Hall’s Mexican Law, sec. 1466; New Orleans v. United States, 10 Pet. 662; Mayor v. Metzinger, 1 Mart. 297; Milne v. Girodeau, 12 La. 324.

There being no grant to which the rights of the state were subordinate, and to the settlement of which the rights of the state were postponed, she became vested with the title immediately upon her admission into the Union. Thereafter there was no power in the government of the United States to make a grant of the land, and the act of its ministerial officers in including it within the survey and patent of a grant theretofore made was in excess of their jurisdiction, in violation of the decree of confirmation, and void. The patent, so far as these lands were concerned, was in effect but the execution of the decree of confirmation. (United States v. Minor, 114 U. S. 242.) “ When a decree gives the boundaries of a tract to which the claim is confirmed with precision, and has become final, it is conclusive not only on the question of title, but also as to the boundaries which it specifies.” (United States v. Hancock, 133 U. S. 196.) And it was the duty of the surveyor in making survey of the claim finally confirmed to “ follow the decree of confirmation as closely as practicable, whenever [and wherever] such decree designates the specific boundaries of the claim.” (United States v. Hancock, 133 U. S. 196; sec. 7 of the Act of Congress of July 1, 1864; 13 Stats. 334.)

Surely if a ministerial officer, in executing a decree which fixes specific boundaries, includes land excluded by the decree from those boundaries, his act can have no force or validity as a conveyance, and especially so if the party executing the conveyance has no title.

As in Jones v. Martin, 13 Saw. 317, so here, the meander line down the coast was necessary for the purpose of ascertaining quantity; “but when done, it was the shore line as fixed by nature and shown upon the ground, and not the meander line as run by the surveyor, that determined the boundary of the grant.”

But there is still another aspect in which this case may he viewed. We have spoken of the rights of this pueblo as a pre-existing title.

That pre-existing title was never a fee under the Mexican law. A grant to a pueblo was not “a private land grant ” in the sense which took title out of the state. It was the mere vesting in the pueblo, a political subdivision of the state, of the use of the land in trust for the benefit of the inhabitants thereof, and with power, as the representative of the state, to make grants which should vest title in private ownership of solares, or house-lots, and suertes, or sowing-lots, to settlers; the remainder to remain vacant,to the end that gifts thereof might be made to new settlers. These grants, as they are generally called, did not deprive the state itself of the right, at any subsequent period, of making what are technically denominated “private land grants,” vesting title in natural persons, of any portion of the lands lying within the four leagues of the pueblo which had not already passed into private ownership; and this power on the part of the state was not unfrequently used. It was notably so used, in several instances, within the pueblo of San Francisco, and the grants so made by the state within the pueblo have been recognized and confirmed. And as hereinbefore shown, the power of the pueblo to make grants that should vest title in private ownership, unlike that of the state, did not extend to that of making grants upon the seashore. The fee of all the land which had not passed into private ownership remained always in the government, and that upon the seashore was unencumbered by the trust or power conferred upon the pueblo. The result was, that upon the conquest, all the property upon this peninsula which had not already passed into private ownership became part of the public domain of the United States, and subject to the same laws as affected other portions of the public domain. But in executing or carrying out the provisions of the treaty of Guadalupe Hidalgo, our government, adding the features of our own town-site laws, saw fit to vest in the successor of the pueblo the fee of that over which before the pueblo had exercised power only as the agent of the sovereign. The land thus became subject to the combined trusts created by the Mexican law relating to pueblos, and the American law relating to towm sites. In this sense, and this only, the patent from the United States became a grant, but as such it could convey nothing which had at the conquest become a part of the public domain, unencumbered with the trust resting in the pueblo, and being so a portion of the public domain, unaffected as aforesaid, had by the laws of the United States passed out of the federal government before the making of the patent.

It is claimed on behalf of appellant that quantity was the controlling element in the decree of confirmation. It is enough to say that while quantity was required, and the claimant was entitled to quantity, it was no more controlling than the natural boundaries on the north, east, and west fixed by the decree, and the decree itself gave leave to go south for quantity. But it did not give leave to go north, east, or west for quantity, even if the government had possessed lands of its own in those directions, which it had power to appropriate to make up quantity.

In view of what was said in the former opinion, which this is not intended either to supersede or modify, but merely to supplement, it does not seem necessary to further extend this discussion. After a careful review of all the authorities cited and' arguments made, we still adhere to the conclusion reached in said former opinion in Bank, that the judgment of the court below must be affirmed.

So ordered.

Sharpstein, J., and Paterson, J., concurred.