Lands within the exterior limits of a Mexican grant,
sub
judice at the date of the definite location of the Central
Pacific railroad, were not "reserved" within the meaning of that
word as used in section three of the Act of July 1, 1862, 12 Stat.
459, c. 120, but inured to the road as a portion of its land grant
and were properly patented to it as such.
Newhall v. Sanger, 92 U. S. 761,
explained.
United States v. McLaughlin, 127 U.
S. 428, approved.
This was an action of ejectment brought by W. B. Carr against
John Quigley for the possession of one hundred and sixty acres of
land situated in the County of Alameda, State of California. The
land is a portion of an unnumbered odd section granted to the
Central Pacific Railroad Company of California by the Act of
Congress of July 1, 1862, as amended by the Act of July 2, 1864,
and which, by the consolidation of the Western Pacific Railroad
Company with the Central Pacific Railroad Company, under the laws
of California, in June, 1870, inured to the latter company, and to
it a patent of the United States for the land mentioned was issued,
bearing date on the 17th day of May, 1874.
The plaintiff claimed title to the demanded premises under a
conveyance to him by the Central Pacific Railroad Company on the
10th of June, 1871.
The complaint alleges that the plaintiff was the owner in fee,
and entitled to the possession of the premises on the 22d of
December, 1877, and that on that day, the defendant, without right
or title, against the will of the plaintiff, entered upon the
premises and ejected the plaintiff therefrom, and has ever since
withheld the possession from him to his damage of $1,000, and that
the value of the annual rent of the premises is $320. He therefore
prays judgment for the restitution of the premises, for the damages
sustained, and for the rents and profits.
Page 149 U. S. 653
The defendant, in his amended answer, in addition to a general
denial of the allegations of the complaint, sets up 1st that at the
date of the patent to the railroad company the land patented was
not subject to the disposal of Congress, but was land reserved to
answer the calls for land of a grant from the Mexican government to
Jose Noriega and Robert Livermore, bearing date the 10th of April,
1839, and that by reason of such reservation the patent was issued
without authority of law, and consequently was void; that since
October, 1877, the defendant has been in rightful possession of the
land as a preemptor under the laws of the United States, and 2d
that the land was not sold by the grantee, the railroad company,
within three years after the completion of its road.
A demurrer to this last defense was sustained by the court, and
its ruling was acquiesced in.
It was agreed that the annual value of the rents and profits of
the land was fifty dollars.
The case was tried twice. On the first trial, in the district
court of Alameda County, the plaintiff put in evidence the patent
of the United States of the land to the Central Pacific Railroad,
and a conveyance of the same by that company to the plaintiff. The
defendant then offered to prove that the land was within the
exterior boundaries of the Mexican grant mentioned, and therefore
reserved from the congressional grant to the railroad company. The
plaintiff objected to the offered proof on the ground that the land
was not subject to preemption when the defendant entered upon it,
the patent of the United States having been previously issued,
which was conclusive in an action of ejectment. The objection was
sustained, to which the defendant excepted, and judgment was
rendered for the plaintiff. Thereupon an appeal was taken by the
defendant to the Supreme Court of California, and in January, 1881,
the judgment was reversed and the cause remanded for a new trial.
In April, 1883, the case again came on for trial in the Superior
Court of Alameda county, the successor to the district court of
that county, under the new Constitution of California, which went
into operation on the 1st of January, 1880. On that trial, the
evidence offered
Page 149 U. S. 654
by the defendant, which was excluded on the previous trial, was
admitted and new testimony given bearing upon the question of the
reservation of the land in controversy. The defendant obtained a
judgment, the court holding that the land was claimed as a part of
the Mexican grant mentioned and was reserved for its satisfaction.
A motion for a new trial was denied. An appeal was then taken from
the order denying the motion, and also from the judgment, to the
supreme court of the state, which affirmed both the order denying a
new trial and the judgment for the defendant, and for a review of
the judgment the case is brought here on writ of error.
MR. JUSTICE FIELD, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The defense upon which the defendant below relied on both trials
was that the land patented to the railroad company was within the
boundaries of a Mexican grant the validity of which was at the time
under consideration by the federal tribunals, and was therefore
reserved from sale when the patent was issued. Evidence to
establish this fact was offered on the first trial but rejected by
the court, and for this alleged error the judgment recovered by the
plaintiff was reversed.
On the second trial, the evidence rejected on the first trial
was received, and it was shown that the land patented to the
railroad company was within the exterior bounds of the Mexican
grant, and that its validity was then under consideration by the
tribunals of the United States, and the court held that it was for
that reason reserved from sale, and that the patent therefor was
unauthorized and void. The defendant having taken up a preemption
claim on the land, judgment was rendered in his favor.
Page 149 U. S. 655
The supreme court of the state sustained this view of the
reservation of the land from sale, and consequent appropriation to
the satisfaction of the congressional grant to the railroad
company. The question for our determination is whether, at the time
of the issue of the patent, the land was thus reserved.
The Act of July 1, 1862, 12 Stat. p. 489, c. 120, provided for
the incorporation of the Union Pacific Railroad Company, and made a
grant of land to that company to aid in the construction of a
railroad and telegraph line from the Missouri River to the Pacific
Ocean. Its provisions apply, in terms, to that company, but the
construction of other railroads is included within the objects
contemplated by the act, and the clauses relating to the Union
Pacific Railroad Company are made applicable to them. The ninth
section authorizes the Central Pacific Railroad Company, a
corporation of California, to construct a railroad and telegraph
line from the Pacific coast at or near San Francisco, or the
navigable waters of the Sacramento River, to the eastern boundary
of the state upon the same terms and conditions which were provided
for the construction of the railroad and telegraph line of the
Union Pacific. A similar grant of land, of the same extent and upon
like conditions was made to the Central Pacific, and the rights and
obligations of the company were determined by the same law.
By the provisions of the third section thus applied, there was
granted to that company, to aid in the construction of its road and
telegraph line, every alternate section of public land, designated
by odd numbers, to the amount of five alternate sections per mile
on each side of its road on the line thereof, and within the limits
of ten miles on each side,
"not sold, reserved, or otherwise disposed of by the United
States, and to which a preemption or homestead claim may not have
attached at the time the line of the road is definitely fixed,"
provided that all mineral lands were excepted from the operation
of the act, but where they contained timber, that timber was
granted to the company.
By the fourth section of the act, as amended by section six of
the act of 1864, it was provided
"That whenever said
Page 149 U. S. 656
company shall have completed not less than twenty consecutive
miles of any portion of said railroad and telegraph line, ready for
the service contemplated by this act and supplied with all
necessary drains, culverts, viaducts, crossings, sidings, bridges,
turnouts, watering places, depots, equipments, furniture, and all
other appurtenances of a first-class railroad, the rails and all
the other iron used in the construction and equipment of said road
to be of American manufacture, of the best quality, the President
of the United States shall appoint three commissioners to examine
the same, and report to him in relation thereto, and if it shall
appear to him that not less than twenty consecutive miles of said
railroad and telegraph line have been completed and equipped in all
respects as required by this act, then, upon certificate of said
commissioners to that effect, patents shall issue, conveying the
right and title to said lands to said company, on each side of the
road as far as the same is completed, to the amount aforesaid, and
patents shall in like manner issue as each twenty miles of said
railroad and telegraph line are completed, upon certificate of said
commissioners."
The definite location of the road was fixed in January, 1865,
and the road was completed in all respects as required by the act
of Congress, and accepted by the President, prior to the 1st of
June, 1869. The Mexican grant to Jose Noriega and Robert Livermore
was known by the name of "Las Pocitas," and, as confirmed, was
described and bounded as follows,
viz.: on the north by
the Lomas de las Cuevas; on the east, by the Sierra de Buenos
Ayres; on the south, by the dividing line of the establishment of
San Jose, and on the west by the rancho of Don Jose Dolores
Pacheco, containing, in all, two square leagues, a little more or
less. The confirmation was of that quantity, if contained within
the boundaries named, and if less than that quantity was found to
be contained therein, then the confirmation was for the less
quantity, and for all of the described tract.
The grantees in February, 1852, petitioned the board of land
commissioners, created by the Act of Congress of March 3, 1851, for
a confirmation of the grant, and in February,
Page 149 U. S. 657
1854, it was confirmed, with the description and condition
mentioned.
On appeal, the decree was affirmed by the United States District
Court for the Northern District of California in February, 1859, to
the same extent, and for the same quantity, and under the same
condition. On appeal, the decree of the district court was affirmed
by the Supreme Court of the United states in January, 1861, and its
mandate was filed in the district court in February, 1865, upon
which an order was entered in that court that the claimants, the
grantees named, have leave to proceed upon the decree of the
district court as a final decree.
Two official surveys were made of the land confirmed, one in
1865, by the deputy United States surveyor general of the district.
This survey, as appears on the maps, embraced within the exterior
boundaries nearly ten square leagues. It was disapproved by the
Secretary of the Interior because it embraced more than two square
leagues, and he directed that a new survey be made. A new survey
was accordingly made, which was approved by the surveyor general
and the commissioner of the land office, and on the 6th of June,
1871, by the Secretary of the Interior. On the 20th of August,
1872, a patent of the United States for the land, the survey of
which was thus approved, was issued to the grantees. The land in
controversy in this case is not included in the land thus surveyed
and patented.
In
Newhall v. Sanger, 92 U. S. 761, it
was held that land within the boundaries of a Mexican grant, while
proceedings were pending in the tribunals of the United States to
determine its validity, was exempt from sale and preemption, and
therefore from appropriation under the land grant acts of the
United States in aid of the construction of railroads and telegraph
lines. Those acts declared that the sections of land granted were
to be public lands of the United States, and by public lands were
meant lands of the United States which were open for sale and
preemption, and that of these public lands there should be excepted
such portions as had been sold or reserved from sale, or otherwise
disposed of, by the United
Page 149 U. S. 658
States or to which a preemption or homestead right had attached
at the time of the definite location of the roads.
For some years after the decision in
Newhall v. Sanger,
it was supposed that the reservation from such appropriation was
extended to all lands within the outboundaries of a Mexican grant,
without reference to the actual quantity granted. The
interpretation given to the term "boundaries," used in the opinion
in that case, led to this conclusion.
But the case of
United States v. McLaughlin,
127 U. S. 428,
where it was attempted to extend the reservation from sale to lands
nearly one hundred miles square upon the ground that that amount
was within the exterior boundaries designated, although the amount
intended to be granted was only eleven leagues, led to a
consideration of the facts in
Newhall v. Sanger, and to a
better understanding of the import of its decision. It then
appeared that there was no allegation in the pleadings of that case
that the boundaries of the grant designated exceeded the actual
amount intended to be granted. As appeared by them, it was a grant
of a specific quantity within boundaries which embraced no greater
amount. The language used with reference to the exemption of a
grant of that character evidently presented a different question
from that of a grant with boundaries embracing an area exceeding
many times the quantity actually granted. So in
United States
v. McLaughlin, the Court considered the different kinds of
grants of the Mexican government, which were 1 grants by specific
boundaries, where the donee was entitled to the whole tract; 2
grants of quantity, as of one or more leagues within a larger
tract, described by what were called "outboundaries," where the
donee was entitled to the quantity specified, and no more; 3 grants
of a certain place or rancho by name, where the donee was entitled
to the whole tract, according to the boundaries given, or, if not
given, according to its extent as shown by previous possession. In
the second class, where the grant was of quantity within boundaries
embracing a much larger quantity, the grant was a float, to be
located by the action of the government before it could attach to
any specific tract, like the land warrants, as the Court said, of
the United States.
Page 149 U. S. 659
The grant in the
McLaughlin case was a float, and,
according to the different interpretations of the outside
boundaries, the region embraced within them was fifty square
leagues in the one case, and over eighty in the other, and the
Court pertinently asked whether such an extensive region could be
under an interdict as reserved land, absolutely exempt from
disposition even by Congress, during the whole period covered by
the litigation respecting the validity of the grant, which, if
found valid, was only for the quantity of eleven square
leagues.
In that particular case, the grant was found to be a wretched
fraud, but the Court said:
"Laying all this aside, however, and looking at the claim as one
fairly
sub judice, we may repeat our question whether it
can be possible that so great a region of country was to be
regarded as reserved from alienation for so small a cause -- an
ordinary eleven-league grant."
The grant of eleven square leagues out of a country seventy or
eighty miles in length and from six to ten in width, containing
over eighty square leagues, was, upon the theory of reservation
advanced, deemed to have the effect of retiring from the supposed
public domain the whole eighty leagues, and more, for a period of
years -- no one could state how long. The Court did not consider
that this view of the reservation intended was reasonable, and
observed that it was at the
"option of the government, not of the grantee, to locate the
quantity granted, and, of course, a grant by the government of any
part of the territory contained within the outside limits of the
grant only reduces by so much the area within which the original
grantee's proper quantity may be located. If the government,"
added the Court,
"has the right to say where it shall be located, it certainly
has the right to say where it shall not be located, and if it sells
land to a third person at a place within the general territory of
the original grant, it is equivalent to saying the the quantity due
to the original grantee is not to be located there. In other words,
if the territory comprehended in the outside limits and bounds of a
Mexican grant are eighty leagues, and the quantity granted is only
ten leagues, the government may dispose of seventy leagues without
doing any wrong to the original grantee."
It observed,
Page 149 U. S. 660
it is true, that it was the practice, in administering the
public lands, to allow the original grantee to make his own
selection of the place where he would have the quantity located,
provided it could be located in one tract; but that was a matter of
favor, and not of right.
In illustrating the serious, if not absurd, results which would
follow from a different view, the court referred to the grant made
by the Mexican government to President Yturbide, in 1822, of twenty
leagues square, or four hundred square leagues, of land, to be
located in Texas. In 1835, the Mexican Congress authorized his
heirs to locate the land in New Mexico,or in Upper or Lower
California. In 1841, it was decreed that it should be located in
Upper California -- that is, the present State of California -- and
the claim was actually presented to the board of land
commissioners, and appealed to the district court, and thence to
the supreme court. So, observed the Court,
"according to the contention of the complainant in the present
case, all California was interdicted territory during the pendency
of that claim before the board and in the courts. . . . We can well
understand,"
the Court added,
"that Indian reservations, and reservations for military and
other public purposes of the government, should be considered as
absolutely reserved and withdrawn from that portion of the public
lands which are disposable to purchasers and settlers, for, in
those cases the use to which they are devoted, and for which they
are deemed to be reserved, extends to every foot of the
reservation. The same reason applies to Mexican grants of specific
tracts, such as a grant for all the land within certain definite
boundaries named, or all the land comprised in a certain rancho or
estate. But this reason does not apply to grants of a certain
quantity of land within a territory named or described, containing
a much larger area than the amount granted, and where, as in the
present case, the right of location within the larger territory is
in the government, and not in the grantee. In such case, the use
does not attach to the whole territory, but only to a part of it
and to such part as the government chooses to designate, provided
the requisite quantity be appropriated. "
Page 149 U. S. 661
So the Court held that where a Mexican grant was for a specific
quantity, within an area containing a much larger quantity, it was
only the quantity actually granted which was reserved from
disposition by the government during the examination of the
validity of the grant. The remainder was at its disposal as a part
of the public domain. And in considering
Newhall v.
Sanger, the Court said that
"the opinion in that case took no notice of the fact [which did
not appear in the record] that the grant was one of that class in
which the quantity granted was but a small part of the territory
embraced within the boundaries named. It proceeded throughout as it
would have done on the supposition that the grant covered and
filled up the whole territory described. It simply dealt with and
affirmed the general proposition that a Mexican grant, while under
judicial investigation, was not public land open for disposal and
sale, but was reserved territory within the meaning of the law -- a
proposition not seriously disputed."
So in the present case there was only reserved from sale and
appropriation by the government within the exterior boundaries of
the Mexican grant to Jose Noriega and Robert Livermore so much land
as would satisfy the quantity actually granted to them, which was
two leagues, and it was competent for the government to grant the
remainder of the land within the exterior boundaries to whomsoever
it might choose. It was land open to sale by the government, and
could have been appropriated to the railroad company, and its
patent to that company passed the land.
The Supreme Court of California acted upon the theory that the
exemption from sale extended to all lands within the exterior
boundaries of the grant, instead of merely to the amount
specifically granted; but, as we have shown, this was an erroneous
view to be taken of the case, after the decision of
United
States v. McLaughlin. And
Doolan v. Carr,
125 U. S. 632,
recognizes the doctrine of that decision. If, therefore, the
Mexican grant in this case was valid, and it has been so adjudged,
there was reserved from sale only two leagues, to be selected,
under the direction and control of the
Page 149 U. S. 662
government out of any lands within those boundaries. It was for
the government itself to prescribe the limits from which the
quantity granted by the Mexican government should be selected, and,
having reserved sufficient from the exterior boundaries to satisfy
that amount, it was perfectly competent for it to grant any surplus
remaining, and it appears from the actual survey of the specific
quantity granted by Mexico that the congressional grant to the
railroad company was outside of any of the land thus
appropriated.
It follows that the judgment of the supreme court must be
Reversed, and the cause remanded for further proceedings in
accordance with the views expressed in this opinion, and it is so
ordered.