Grisar v. McDowell
73 U.S. 363 (1869)

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U.S. Supreme Court

Grisar v. McDowell, 73 U.S. 6 Wall. 363 363 (1869)

Grisar v. McDowell

73 U.S. (6 Wall.) 363

Syllabus

1. By the laws of Mexico, which prevailed in California at the date of the conquest, pueblos or towns, when once established and officially recognized, were entitled, for their benefit and the benefit of their inhabitants, to the use of lands embracing the site of such pueblos or towns and of adjoining lands within certain prescribed limits. These laws provided for an assignment to the pueblos of such lands, which were not to exceed in extent four square leagues. The assignment was to be made by the public authorities, and the land was to be measured off in a square or prolonged form, according to the nature and condition of the country. All lands within the general limits stated which were required for public purposes were reserved from the assignment.

2. Until the lands were definitely assigned, the right of the pueblo was an imperfect one. The government might refuse to recognize it at all or might recognize it in a qualified form, and it might be restricted to less limits than the four square leagues. After the assignment, the right of

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use and disposition (a limited one) was subject to the control of the government of the country.

3. Though historical evidence and judicial decision show that there was a Mexican pueblo of some kind, on the conquest of California, at what is now the site of San Francisco, one entitled to the usual rights of pueblos, no assignment of lands was ever made to it under the former government. Its right to any lands required, accordingly, recognition from the United States before it could be turned into an indefeasible estate, and until the land claimed under the pueblo right was set off and measured by its authority, the government could set apart and appropriate any portion of it which might be required for public uses.

4. The necessity of such recognition by the new government is not dispensed with by the presumption raised by the fourteenth section of the Act of March 3, 1851, of "a grant of land to a town which was proved to have been in existence on the 7th of July, 1846."

5. The proceeding in the district court of the United States in a California land case, on an appeal from the board of land commissioners, is an original suit, and the whole case is open.

6. An appeal from a decree of the district court to the Supreme Court in California land cases suspends the operation and effect of the decree only when, by a judgment of the Supreme Court, the claim of the confirmee in the premises in controversy may be defeated.

7. In the execution of its treaty obligations with respect to property claimed under Mexican laws, the government may, if it please, act by legislation directly upon a claim preferred, withdrawing it from further consideration of the courts under the provisions of a general act. Accordingly, an act by which all the right and title of the United States to the land within the corporate limits of San Francisco confirmed to the city by a decree of the circuit court, were relinquished and granted to that city, and the claim of the city was confirmed, subject, however, to the reservations and, exceptions designated in the decree, and upon certain specified trusts, disposed of the city claim, and determined the conditions upon which it should be recognized and finally confirmed.

8. The decree of the board of land commissioners in California land cases, or of the courts of the United States, where it becomes final, takes effect by relation as of the day when the claim was presented to the board of land commissioners.

9. According to the practice of the government, as recognized by Congress, the President may reserve from sale and set apart for public use parcels of land belonging to the United States. And he may modify, by reducing or enlarging it, a reservation previously made. That he has made the modification on a compromise of an opposing private claim does not invalidate the reservation.

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The plaintiff claimed as seized in fee under title from the City of San Francisco. The defendant claimed possession as an officer of the United States; setting up that the property was public property of the United States reserved for military purposes.

The city's title was thus:

It seemed to be sufficiently plain, from historical evidences and from adjudicated cases, that at the time of the conquest of California by the United States, there was at the present site of San Francisco a pueblo of some kind -- that is to say that there was a settlement or collection of individuals there having an ayuntamiento composed of alcaldes, regidores, and other municipal officers. [Footnote 1]

It seemed sufficiently plain also that there were general Mexican laws governing the subject which authorized territory to an extent not exceeding four square leagues to be marked out and dedicated to the use of pueblos and of their inhabitants for certain purposes.

What, however, was the precise nature of this pueblo at San Francisco, or what the nature of its rights or of pueblo rights generally in any four leagues, and by what lines these particular four leagues were to be defined, was not so clear, nor at all conceded, though it was asserted by the plaintiff that the four leagues in immediate connection with San Francisco were to be measured from the presidio of the old pueblo, the place occupied by the garrison of the town, and hence were to be bounded of necessity on three sides by waters of the ocean, the bay, and the Golden Gate. And it was shown that a line drawn from water to water, east and west, would segregate in the easiest manner the four leagues to which, as successor of the former pueblo, the city was entitled.

If such a line had ever been drawn, the tract now in controversy would have been included within it. But there was no evidence that any assignment of land had ever in any

Page 73 U. S. 366

way been made to the pueblo where San Francisco now stands under the former government.

On the 3d of March, 1851, Congress passed the act to ascertain and settle private land claims in California. This act, by its eighth section, makes it the duty of every person having claims to lands there to present them for investigation and the evidence in support of them, to a board of commissioners, which was created by the act. The fourteenth section declared, however, that the general requirements of this eighth section should not extend to

"any town lot, farm lot or pasture lot held under any grant from any corporation to which lands may have been granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, nor to any city, town, or village lot, which city, town, or village, existed on the 7th day of July, 1846, but that the claim for the same shall be presented by the corporate authorities of said town,"

and that

"the fact of the existence of the said city, town, or village, on the said 7th of July, 1846, being duly proved, shall be prima facie evidence of a grant to such corporation."

In July, 1852, the city presented to this board a claim for the four leagues, praying a confirmation, and in December, 1854, the board confirmed the claim to a portion of the land, in which portion were embraced the premises now in controversy.

In June, 1855, in virtue of an ordinance known as the Van Ness Ordinance, passed by the common council of the City of San Francisco and subsequently, in 1868, ratified and confirmed by the Legislature of California, whatever right the city had to the premises in controversy, on the 1st January, 1855, passed to a party under whom the plaintiff claimed.

Such was the plaintiff's case.

By the defendant's, it appeared that in November, 1850, the President of the United States made, through the War Department and in a usual way, an order that a certain parcel of land described by him, situated on the Bay of San

Page 73 U. S. 367

Francisco, California, and which, it was said by one side here, did, in point of fact, embrace the premises in controversy, and by the other that it did not -- should be exempted from sale and reserved for public purposes. A private claimant to this tract proposing subsequently that certain other bounds should be substituted, with the understanding that if this was agreed to by the government, he would resign all pretensions to title within the reservation, as fixed by the modified boundary proposed, the President, in December, 1851, in compliance with a recommendation to that effect from the Engineer Department, made in October, 1851, modified and reduced the reservation, describing it more particularly and in such a way as to divide the tract originally reserved into two separate tracts, and, as it was said on one side here, to include also, land not included in the original order. In one of these tracts the premises in controversy were embraced.

The fact, therefore, that the President had reserved the tract for the purposes of the federal government was one part of the defendant's case. Another was this:

In stating the city's title, it has been said that the board of land commissioners, in December, 1854, confirmed the claim of the city to a part of the four leagues claimed by it as a pueblo, which part included these premises. If the matter had stopped there, the case of the plaintiff might have been free from question. But it did not stop there. The sequel was thus:

In March, 1856, a transcript of the proceedings and decision of the board was filed in the district court of the United States, this operating under the statute of August 31, 1852, as an appeal by the party against whom the decision was given. Both city and United States in this case considered the decision as against them, and both gave notice of their intention to appeal. The appeal of the United States was, however, on notice of the Attorney General and the stipulation of the district attorney, dismissed, and the city alone prosecuted its appeal. While the appeal was thus pending in the district court, Congress passed an

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act [Footnote 2] by virtue of which the case became transferred to the circuit court of the United States. That court, in May, 1865, confirmed the claim of the city to the four leagues, excepting, among others, such parcels of land as had been previously "reserved or dedicated to public uses by the United States," meaning by this the tracts reserved as above mentioned by the then President, Mr. Fillmore. From this decree of the circuit court, the United States appealed to the Supreme Court at Washington.

After the appeal taken (but previous to the trial in the present case), Congress relinquished all right of the United States to land situated within the City of San Francisco and confirmed to it by the decree just mentioned to the city and confirmed the city's claim, subject, however, to the reservations and exceptions designated in that decree [Footnote 3] and also subject to certain specified trusts. The appeal of the United States to the Supreme Court was accordingly dismissed.

On the trial of the present case, the plaintiff objected to the admission of the evidence of the first reservation of the President on account of its indefiniteness of description and because the President could not make a reservation out of pueblo lands, and of the second one, among other reasons, because it was the result of a compromise between the government and an adverse claimant.

He objected also to the admission of the decree mentioned as having been made in the circuit court, it being admitted on the other side that an appeal was taken to it by the United States and was still pending.

The objections were all overruled, and judgment having been given for the defendant, the case was now here on error.

The case, it will be seen, involved essentially the question of the nature of the title and ownership of lands held by Mexican pueblos under the laws of Mexico in force in California

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at the date of the conquest of that country, and to some extent of the nature of a pueblo itself.

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