The Board of Commissioners appointed under the Act of Congress
of March 3, 1801, 9 Stat. 631, c. 41, confirmed to Manuel Dominguez
and others, claimants under a Mexican grant, a certain tract of
land known as the Rancho San Pedro. Upon appeal to the District
Court of the United States for the Southern District of California,
the action of the Board was approved, and it was adjudged, February
10, 1807, that the claimants had a valid title to that rancho, the
decree giving the boundaries to the lands so confirmed. In
execution of the decree, the lands were surveyed under the
direction of the United States surveyor general of California. The
survey upon its face excepted, reserved and excluded from the claim
surveyed the inner bay of San Pedro. Within the exterior lines of
that bay is Mormon Island, containing at mean low tide 18.88 acres,
and at mean high tide, about one acre. The survey having been filed
in the Land Department, a patent was issued February 19, 1858, to
the claimants under the decree of confirmation, conveying lands
that were outside the exterior lines of the inner bay of San Pedro,
and containing eight square leagues more or less. The patent
followed the survey, anti did not include that bay or any lands
within its exterior lines. The present action was brought by
various parties, asserting title under the decree of confirmation,
to recover possession of the above 18.88 acres. The defendant
claimed under a patent issued to him by the United States in 1881.
No application was ever made to the district court of the United
States to correct any error in the decree of 1837, nor was any step
taken to have a new survey or to obtain a patent conveying all the
lands apparently embraced by that decree.
Held:
(1) If the surveyor general misinterpreted the decree of
confirmation, and made a survey which excluded from the surveyed
claim any of the lands within the lines given by that decree, it
was within the power of the district court to have its decree
properly executed, and to that end to order a new survey.
(2) While it may be true in some cases that an action to recover
possession of lands confirmed to a claimant under the act of 1851
can be maintained before a patent is issued, a patent issued
avowedly in execution of a decree passed under that act was
conclusive between the United States and the claimants, and until
cancelled, such patent alone determines, in an action to recover
possession, the location of the lands that were confirmed by the
decree.
(3) The patent in question having been accepted by the
patentees, and
Page 167 U. S. 724
being uncancelled, the plaintiffs in this action, claiming under
the patentees, cannot recover lands not embraced by it, even if
such lands are embraced by the lines established by the decree of
confirmation, the conclusive presumption being that the patent,
being uncancelled, correctly locates the lands covered by the
confirmed grant.
The court further said it was unnecessary to decide whether the
defendant was entitled to a judgment on his cross-complaint or
whether the lands under the navigable waters of the inner bay of
San Pedro, and those here in controversy or any part thereof,
passed to the State of California upon its admission into the Union
or after the issuing of the patent of 1858.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This action is, in form, ejectment. It was brought May 17, 1886,
in the Superior Court of the County of Los Angeles, California, by
Ana J. Dominguez De Guyer and others to recover the possession of a
certain island, known as "Mormon Island," in the inner bay of San
Pedro, California. At mean high tide, the island has an area of
less than one acre; at mean low tide, about 18.88 acres. The area
of the bay, including the island, is 1,100.59 acres.
The defendant, Banning, filed an answer in which he denied the
allegations of the complaint; also, a cross-complaint asserting
title in himself, and asking a judgment declaring him to be the
owner, and of right in possession, of the premises in
controversy.
A jury having been waived and the cause having been tried by the
court, judgment was rendered that the plaintiffs take nothing by
their action, and that the defendant was the owner, seised in fee
and entitled to the possession, of the lands described in the
pleadings. That judgment was reversed by the Supreme Court of
California. Three of the members of that court, as then constituted
-- Justices Fox, Sharpstein, and
Page 167 U. S. 725
Paterson -- were of opinion that the island, as well as the
whole of the inner bay within the exterior lines of a grant alleged
to have been made by the Mexican government to Christobal
Dominguez, belonged to the claimants under that grant, and that the
title was vested in the plaintiffs. Mr. Justice Thornton was of
opinion that the plaintiffs were entitled to recover the island and
such other portion of the land sued for as contained 18.88 acres,
and was not covered by the navigable waters of the inner bay. Chief
Justice Beatty and Justice McFarland dissented.
Upon a rehearing, the court, then constituted of Chief Justice
Beatty and Justices De Hayen, McFarland, Harrison, Garoutte, and
Sharpstein, unanimously affirmed the judgment of the inferior
court. 91 Cal. 400.
The present appeal was prosecuted by the Los Angeles Terminal
Land Company and George Carson, trustee, they having, after the
final decision in the state court, become vested with all the
right, title, and interest of the original plaintiffs.
The case has been twice orally argued in this Court, and we
have, in addition, the benefit of a brief, filed by leave of court,
on behalf of the United States, in support of the judgment below;
the Solicitor General having stated that the government has a deep
interest in the result of the litigation by reason of the fact that
it has heretofore expended vast sums of money in improving the
navigation of the inner bay of San Pedro and the entrance thereto,
and that this bay is regarded as one of the most important points
on the Pacific coast as a harbor of refuge.
The history of the title to the lands in controversy, as shown
by acts of Congress, public documents, and records, is
substantially as follows:
By the Act of Congress of March 3, 1851, 9 Stat. 631, c. 41,
provision was made for the appointment of a board of commissioners
to ascertain and settle private land claims in California.
That act declared that every person claiming lands in that state
by virtue of any right or title derived from the Spanish
Page 167 U. S. 726
or Mexican government should present the same to that board,
together with such documentary evidence and testimony of witnesses
as the claimant relied upon in support of his claim; the decision,
when rendered, to be certified, with the reasons on which it was
founded, to the district attorney of the United States for the
district in which it was rendered. § 8. In case of the rejection or
confirmation of a claim, provision was made for a review of the
decision by the district court of the district in which the land
was situated, and an appeal was allowed from the judgment of that
court to the Supreme Court of the United States. §§ 9, 10. When
deciding on the validity of any claim, the board, as well as the
courts, were to be governed by the treaty of Guadaloupe Hidalgo,
the law of nations, the laws, usages, and customs of the government
from which the claim was derived, the principles of equity, and the
decisions of the Supreme Court of the United States, as far as they
were applicable. § 11.
By the thirteenth section of the act, it was provided
"that all lands the claims to which have been finally rejected
by the commissioners in manner herein provided or which shall be
finally decided to be invalid by the district or supreme court, and
all lands the claims to which shall not have been presented to the
said commissioners within two years after the date of this act,
shall be deemed, held, and considered as part of the public domain
of the United States, and for all claims finally confirmed by the
said commissioners, or by the said district or supreme court, a
patent shall issue to the claimant upon his presenting to the
General Land Office an authentic certificate of such confirmation,
and a plat or survey of the said land, duly certified and approved
by the surveyor general of California, whose duty it shall be to
cause all private claims which shall be finally confirmed to be
accurately surveyed, and to furnish plats of the same, and in the
location of the said claims, the said surveyor general shall have
the same power and authority as are conferred on the register of
the land office and receiver of the public moneys of Louisiana by
the sixth section of the act 'to create the office of surveyor of
the public lands for the State of Louisiana,'
Page 167 U. S. 727
approved third March, one thousand eight hundred and thirty-one.
. . ."
It was further provided
"that the final decrees rendered by the said commissioners, or
by the district or Supreme Court of the United States, or any
patent to be issued under this act, shall be conclusive between the
United States and the said claimants only, and shall not affect the
interests of third persons."
§ 15.
On the 19th day of October, 1852, Manuel Dominguez, Conception
Roche, and others presented to the board of commissioners appointed
under the above act a petition, claiming a certain tract of land in
the County of Los Angeles known by the name of "San Pedro,"
containing ten square leagues, more or less. The petition stated
that some of the plaintiffs claimed by inheritance and a portion by
purchase from the heirs of Christobal Dominguez, who, it was
alleged, died seised in fee thereof, having inherited from his
uncle, Juan Jose Dominguez, who also died seised thereof in fee
about the year 1809 or 1810; that the latter, previous to his
death, obtained
"a perfect grant or concession of the said tract, but at what
particular date or from what precise governor cannot now be
discovered, owing to the fact that during his lifetime, the papers
issued and granted, it is believed, by Jose Dario Arguello,
governor of the peninsula, in pursuance of the power duly vested in
him, were burnt or lost, which said papers, it is averred,
contained a complete or perfect grant to the said Juan Jose;"
that such title had been frequently and repeatedly acknowledged
by both the Spanish and Mexican governments, and particularly by
Don Pablo Vincente de Sola, governor of the province of California,
by decree bearing date December 31, 1822; that the said Christobal
Dominguez, the father and grandfather of the majority of the
petitioners, possessed the tract peaceably and quietly up to his
death, and died in the full and legal seizure thereof about 1823;
that since that time, his heirs and representatives have held, and
still hold, the full, recognized, and peaceable possession thereof,
except as thereafter stated in the petition, which possession was
known to the Mexican government and
Page 167 U. S. 728
approved, ratified, and confirmed by it in numberless instances;
that the lines and boundaries of the tract were, and had always
been, well known, defined, and respected, and that, about the year
1817, the judicial possession thereof was given by competent
authority, and its lines and boundaries marked out and clearly
defined.
The petitioners, after stating their relationship to Christobal
Dominguez, averred that they claimed
"in fee the said Rancho of San Pedro as tenants in common in the
shares and proportions as aforesaid in virtue of the aforesaid
grants, of their long pacific possession, and of the ratification,
approval, and acknowledgment of their title by the Mexican
government."
The prayer of the claimants was that their title to the Rancho
San Pedro be confirmed.
The board of commissioners sustained the claim of the
petitioners, and an appeal was prosecuted by the government to the
District Court of the United States for the Southern District of
California. In that court, on the 10th day of February, 1857, the
following judgment was rendered:
"It is ordered, adjudged, and decreed that the decision of the
said board of land commissioners be, and the same hereby is,
affirmed. And it is further adjudged and decreed that the claim of
the appellees to the lands claimed in this case is good and valid,
and the same are hereby confirmed to them, as follows: the lands of
which confirmation is hereby made are those known as the 'Rancho of
San Pedro,' situate in Los Angeles County, and bounded as
follows:"
"Commencing at the large sycamore tree (aliso) standing on the
side of the high road leading from San Pedro to Los Angeles; thence
running in a westerly direction to a stone placed near the high
road above mentioned, and near a small arroyo or creek; thence
crossing the plain and following the line of said stones, which are
placed as landmarks along said boundary line, to a large stone
placed as a monument in said line on the top of a sand hill; thence
to the sea, passing by and including the salt ponds known by the
name of 'Las Salinas;' thence along the sea until it reaches a
point opposite the northern line of the Rancho Palos Verdes,
occupied
Page 167 U. S. 729
by and confirmed by said commissioner to the Sepulvedas; thence
following said line in an easterly direction to some sand hills for
about twelve thousand varas; thence southerly to a point called 'La
Goleta,' on the sea coast; thence following the sea coast easterly
to the River San Gabriel; thence up said river to a point where a
line drawn from the stone first mentioned through said sycamore
tree would strike said river; thence along such line to the place
of beginning -- containing eight and a half (8 1/2) square leagues,
a little more or less."
The United States asked and was allowed an appeal from this
decision. But, the Attorney General of the United States having
given notice that the government would not prosecute the appeal,
the parties stipulated in writing that the order granting the
appeal be vacated, and that the claimants might proceed under the
decree as under a final decree. That stipulation was filed in the
cause on the 4th day of June, 1857, and on the same day an order
was made vacating the allowance of the appeal and giving the
claimants leave to proceed as under a final decree.
On the 18th day of December, 1858, a patent was issued by the
United States to the persons in whose behalf the decree of
confirmation was made. The patent did not set out the decree, nor
give the boundaries of the confirmed tract as described in it, but,
after referring to the petition presented to the board of land
commissioners and stating generally that the petitioners claimed
therein the confirmation of the tract known by the name of "San
Pedro," proceeded:
"And whereas the board of land commissioners aforesaid on the
17th day of October, 1854, rendered a decision that"
"the claim of the said petitioners is valid, and it is therefore
decreed that the same be confirmed to them, to hold and possess the
same as tenants in common in the respective shares and proportion
which they hold in and to the premises thereby confirmed by title
deduced from Christobal Dominguez, deceased, by heirship or mesne
conveyances, it being the intention to confirm to each of said
petitioners the respective title held by him at the time of his
becoming a party to this proceeding, derived from the source above
mentioned,"
"which
Page 167 U. S. 730
decree or decision was confirmed by the District Court of the
United States for the Southern District of California on the tenth
day of February, 1857, and whereas it further appears from a
certified transcript on file in the General Land Office that, the
Attorney General of the United States having given notice that the
appeal of the Supreme Court of the United States in this cause
would not be prosecuted, the aforesaid district court on the fourth
day of June, 1857,"
"ordered that the order of this Court made on the twenty-fourth
day of February A.D. 1857, granting an appeal to the supreme court
from the decree of confirmation of this Court, filed on the tenth
day of February, 1857, be and is hereby vacated, and that the said
claimants have leave to proceed under said decree as under a final
decree."
"And whereas, under the thirteenth section of the Act of
Congress of the third of March, 1851, there have been presented to
the Commissioner of the General Land Office a plat and certificate
of the survey of the land confirmed as aforesaid, authenticated on
the 19th day of February, 1858, by the signature of the surveyor
general of public lands in California, which plat and certificate
are in the words and figures following, to-wit:"
" U.S. Surveyor General's Office"
"
San Francisco, California"
" Under and by virtue of the provisions of the thirteenth
section of the Act of Congress of the third of March, 1851,
entitled 'An act to ascertain and settle the private land claims in
the State of California,' and of the twelfth section of the Act of
Congress approved on the 31st of August, 1852, entitled 'An act
making appropriations for the civil and diplomatic expenses of the
government for the year ending the thirtieth of June, eighteen
hundred and fifty-three, and for other purposes,' and in
consequence of a certificate of the United States District Court
for the Southern District of California, of which a copy is annexed
having been filed in this office, whereby it appears that, the
Attorney General of the United States having given notice that it
was not the intention of the United States to prosecute the appeal
from the
Page 167 U. S. 731
decision of the said district court by which it affirmed the
decision of the board of commissioners appointed under the
provisions of the said act of the third of March, eighteen hundred
and fifty-one, to ascertain and settle the private land claims in
the State of California, by which they recognized and confirmed the
title and claims of Manuel Dominguez
et al. to the tract
of land designated as the 'Rancho San Pedro,' containing eight and
a half square leagues, a little more or less, the said appeal has
been vacated by the said district court, and thereby the said
decisions in favor of the said Manuel Dominguez
et al.
have become final. I have caused the said tract to be surveyed in
conformity to the boundaries specified in the said confirmatory
decree, and do hereby certify the annexed map to be a true and
accurate plat of the said tract of land as appears by the field
notes of the survey thereof made by Henry Hancock, deputy surveyor,
in the month of December, 1857, under the directions of this
office, which, having been examined and approved, are now on file
therein."
" And I do further certify that, under and by virtue of the said
confirmation and survey, the said Manuel Dominguez
et al.
are entitled to patent from the United States, upon the
presentation hereof to the General Land Office, for the said tract
of land, the same being described as follows, to-wit: [Here follows
a description, by metes and bounds, of the exterior lines of the
Rancho San Pedro, within which is Mormon Island, in the inner bay
of San Pedro.]"
" Excepting reserving and excluding from the tracts as thus
surveyed that portion thereof covered by the navigable waters of
the inner bay of San Pedro, and which are included within the
following described lines, to-wit: beginning at the stake on the
high water line of the inner bay of San Pedro on the line between
stations twenty-three and twenty-four of the survey of the rancho,
and which stake is two hundred and twelve chains south, seven
degrees thirty-two minutes east, from said station number
twenty-three. [Here in the body of the certificate is a table
showing the metes and bounds of the entire survey, and also a table
headed
Page 167 U. S. 732
'Traverse of Inner Bay of San Pedro, to be Excluded from Survey
of the Claim,' and showing the metes and bounds of the part so
excluded, and immediately below the last table are these words:
'Area within the exterior lines of the confirmed tract, 44,219.72
acres; area within lines 7 to 16, being the lands covered by the
navigable waters of the inner bay of San Pedro, connected with the
ocean, and therefore to be excluded, 1,100.50 acres; area included
in the boundaries specified by the confirmatory decree, exclusive
of bay, 43,119.13 acres.']"
" Thence, according to the true meridian (the variation of the
magnetic needle being thirteen degrees thirty minutes east), along
the high water line of the inner bay of San Pedro, south, eighty
degrees forty-five minutes east, ten chains and eighty-four links,
to station; . . . thence north, thirty-one degrees thirty minutes
west, crossing the channel or entrance to the bay, nineteen chains
and forty-four links, to La Goleta, exterior boundary station
number twenty-four, and thence north, seven degrees thirty-two
minutes west, crossing the said inner bay, one hundred and
twenty-five chains and twenty links, to the stake on the high water
line of the bay, and commencement of this survey thereof."
" Containing, exclusive of the lands above described as covered
by the navigable waters of the inner bay of San Pedro, forty-three
thousand one hundred and nineteen acres and thirteen hundredths of
an acre, and being designated upon the plats of the public survey
as lots numbered thirty-seven, thirty-eight, and thirty-nine in
township three south, or range twelve west; lot number thirty-seven
in township three south, of range thirteen west; lot number
thirty-seven in township three south, of range fourteen west; lot
number thirty-seven in township four south, of range thirteen west;
lot number thirty-seven in township four south, of range fourteen
west; lot number thirty-seven in township four south, of range
fifteen west, and lot number thirty-seven of township five south,
of range thirteen west of the San Bernardino meridian line."
" In testimony whereof, I have hereunto signed my name
Page 167 U. S. 733
and affixed the seal of said office this nineteenth day of
February, A.D. 1858."
" [L.S.] J. W. Mandeville"
"
U.S. Sur. Gen'l, Cal."
"Now, know ye that the United States of America, in
consideration of the premises, and pursuant to the provisions of
the Act of Congress aforesaid, of 3d March, 1851, have giver and
granted, and by these presents do give and grant, unto the said
Manuel Dominguez, Conception Roche, Bernardino Roche, Jose Antonio
Aguirre, Maria Jesus Cotta de Dominguez, Madalena Dominguez, Andres
Dominguez, Feliciana Dominguez, Estaban Dominguez, Maria Dominguez,
Pedro Dominguez, Jose Dominguez, Maria, widow of Manuel Roche, and
Antonio Jacinto Roche, and to their heirs, the tract of land
embraced and described in the foregoing survey in the respective
shares and proportions which they hold in the premises"
"by them deduced from Christobal Dominguez, deceased, by
heirship or by mesne conveyances, but with the stipulation that in
virtue of the fifteenth section of the said act the confirmation of
the said claim and this patent shall not affect the interest of
third persons,"
"to have and to hold,"
etc.
This patent appears to have been recorded December 28, 1869 at
the request of Manuel Dominguez.
At the trial, the plaintiffs read in evidence the petition of
claimants before the board of land commissioners for the
confirmation of the Rancho San Pedro; the decree of the board
confirming the same; the decree of the district court confirming
the decision of the commissioners, and the orders therein made as
above stated, and a copy of the above patent from the United
States.
At this stage of the trial, it was stipulated between counsel
that
"whatever title vested by said confirmation and patent in said
petitioners and confirmees had passed to, and become vested in, the
plaintiffs in this action, who are now owners of whatever title
passed under said confirmation and patent to the said petitioners
and confirmees. "
Page 167 U. S. 734
A witness for the plaintiffs, who was a surveyor, testified
that
"the lines of the decree of confirmation and the exterior lines
of the patent and the patent map were identical, that the survey
was made in conformity to the decree of confirmation, and from that
survey the description contained in the patent was made,"
and that the inner bay of San Pedro, within which was Mormon
Island, was within the exterior lines called for in that decree,
and defined on the patent map.
Banning, in support of his claim to the premises, introduced in
evidence a patent from the United States, of date December 30,
1881, for lot 1 of section eight in township five south of range
thirteen west of San Bernardino meridian, in California,
"containing 18.88 acres, according to the official plat of the
survey of the said lands returned to the General Land Office by the
surveyor general," and a quitclaim deed to him from A. A. Polhamus,
navigator, for
"a certain tract of land situate in the Bay of Wilmington,
County of Los Angeles, State of California, known as 'Mormon
Island,' and all the land adjoining thereto, to which I [the
grantor] have any title or claim."
Banning testified in his own behalf that he entered into
possession of Mormon Island in 1880, his possession beginning by
his buying out the person then on the island. But he does not state
who that person was, or by what right he was in possession. He also
testified that when he took possession, he claimed that the title
was in the United States, and he continued to so claim until he
obtained a patent from the United States, when he claimed the
property for himself, and that he has been in possession since
1890, no one else claiming the right of possession until the
present plaintiffs set up their claim by this suit. He said:
"This tract of land known as Mormon Island is an island. At
about half tide, it is an island, and is now an island at low
water. At low water, it is only partly surrounded by water. At low
water, it would not be surrounded with water. At mean tide, there
would be about two feet of water around it. At high tide, it is
almost all covered with water. . . . A very small portion of the
island is above ordinary high water. At mean tide, I don't think
there is an acre above water. The
Page 167 U. S. 735
descriptive clause in the patent to me extends to mean low
water. I think to include eighteen acres would carry it to mean low
water. We occupied a portion of it that was covered with water. I
have shipways there, and houses on piles. About an acre is covered
in that way. Another portion of the island we run lighters on and
pile lumber on when the high tide falls. We use in that way
sometimes a couple of acres on the west side -- the channel side of
the island -- and that kind of occupation would cover about three
acres."
There was some evidence as to how certain lands, including
Mormon Island, were assessed from 1880 to 1887, inclusive, but, in
the view the Court takes of the case, it is not necessary to advert
to it.
The map which accompanied and was made part of the patent of
1858 shows the exterior lines of the survey made under the decree
of confirmation. Those lines include the whole of the inner bay of
San Pedro. The map also shows the exterior lines of the bay itself.
But across that part of the map which designates the bay are the
words, "Inner Bay of San Pedro (Exception)." And, as already
stated, the map has on its face not only a table showing the
exterior lines of the entire boundary run by the surveyor general,
but a table of courses and distances, under the heading, "Traverse
of Inner Bay of San Pedro, to be Excluded from Survey of the
Claim." It is not disputed that Mormon Island is within the
exterior lines of this inner bay, and is almost covered with water
at high tide. That the part excluded or excepted from the survey
embraced the navigable waters of the inner bay cannot be doubted.
Was it not also intended to exclude Mormon Island, which, according
to the opinion of the court below on the original hearing,
consisted, as high water, "of a pile of rocks covering not much
more than an acre?" This question was answered in the negative by
the Supreme Court of California, which, on the rehearing of the
case, said:
"The remaining question is whether the land in controversy is
included within the exception, and, as to this, we entertain no
doubt that the exception, properly construed, embraces all the
lands within the exterior boundaries of the inner bay of
Page 167 U. S. 736
San Pedro, as shown on the map accompanying the patent, and is
not confined simply to such land as is covered by the navigable
waters of that bay. That this is the true meaning of the exception
is made to appear not only from the fact that the inner bay of San
Pedro is marked 'Excepted' upon the map referred to, but is also
conclusively shown by the concluding portion of the survey itself,
as returned and certified, in which, after giving the boundaries of
the land surveyed, by courses and distances, it designates the land
surveyed, 'exclusive of the lands above described as covered by the
navigable waters of the inner bay of San Pedro,' as being certain
numbered lots on the plats of the public survey, neither of which
lots includes any portion of the land within the exterior
boundaries of the inner bay of San Pedro, as marked on said
map."
We entirely concur in that view. The purpose of the surveyor
general was to set apart to the claimants, under the decree of
confirmation, 43,119.13 acres, and not to include in, but
distinctly to exclude from, the surveyed claim, the 1,100.50 acres
within the exterior lines of the inner bay. And, that there might
be no doubt where and how the confirmed tract was located, the
survey describes the 43,119.13 acres as being designated upon the
plats of the public survey as certain numbered "lots." Mormon
Island is not within any of those lots. The island therefore was
not included within, but was excluded from, the surveyed claim, nor
patented to the claimants who obtained the decree of
confirmation.
The plaintiffs therefore contend that we have a case in which
the survey made in execution of the decree of confirmation under
the act of 1851, and the patent based on that survey, except and
exclude lands which, although within the exterior lines of the bay,
are within the exterior lines of the confirmed tract as described
in such decree.
But does it follow that, in this action to recover possession,
the plaintiffs can recover lands that were excluded from the
survey, and are not embraced by the patent based upon that survey?
The plaintiffs offered in evidence is support of their title a
patent which manifestly did not grant lands that were excluded from
the surveyed claim, and yet it is contended
Page 167 U. S. 737
that they may go behind both the survey and patent and recover
the possession of the lands so excluded precisely as they could do
if the lands had been included in both the survey and patent.
In our opinion, if those who obtained the decree of confirmation
objected to the survey as not being in conformity with that decree,
their objection should have been made known to the district court
before the survey was transmitted to the General Land Office, or at
least before it was acted upon and made the basis of a patent. The
patent was not issued until nearly a year after the survey was made
and certified. Under the act of 1851, it was within the power of
the district court to have required a survey in exact conformity
with its decree. Its jurisdiction over the subject did not end with
the decree. The surveyor general was required by the statute (§ 13)
to cause an accurate survey to be made of all private claims
finally confirmed under the act of 1851, and to furnish plats of
the same. If he misinterpreted the decree -- if he made an
inaccurate survey and excluded from it lands that were confirmed to
the original claimants -- the court had authority to compel the
proper execution of its decree.
In
United States v.
Fossatt, 21 How. 445,
62 U. S. 450,
decided in 1858, which case arose under the act of 1851 for the
settlement of private land claims in California, this Court,
speaking by Mr. Justice Campbell, said:
"It is asserted on the part of the appellants that the district
court has no means to ascertain the specific boundaries of a
confirmed claim, and no power to enforce the execution of its
decree, and consequently cannot proceed further in the cause than
it has done. The thirteenth section of the act of 3d of March,
1851, makes it the duty of the surveyor general to cause all
private claims which shall be finally confirmed to be accurately
surveyed, and to furnish plats of the same. It was the practice
under the acts of 1824 and 1828, 4 Stat. 52, 284, for the court to
direct their mandates specifically to the surveyor designated in
those acts. And in the case of
Sibbald v. United States, 12
Pet. 488, the duty of the surveyor to fulfill the
Page 167 U. S. 738
decree of the court, and the power of the court to enforce the
discharge of that duty, are declared and maintained. The duties of
the surveyor begin under the same conditions, and are declared in
similar language, in the acts of 1824, 1828, and of 1851. The
opinion of the Court is that the power of the district court over
the cause, under the acts of Congress, does not terminate until the
issue of a patent conformably to that decree."
To the same effect was
United States v. Berrevesa's
Heirs, 23 How. 499.
The power of the district court over proceedings taken in
execution of its decree was distinctly recognized by, although
existing before, the Act of June 14, 1860, 12 Stat. 33, c. 128,
which provided that
"the district courts of the United States for the Northern and
Southern Districts of California are hereby authorized, upon the
application of any party interested, to make an order requiring any
survey of a private land claim within their respective districts to
be returned into the district court for examination and
adjudication, and on the receipt of said order, duly certified by
the clerk of either of said courts, it shall be the duty of the
surveyor general to transmit said survey and plat forthwith to said
court."
Referring to the act of 1860, in
United
States v. Halleck, 1 Wall. 439,
68 U. S. 454
(1863), in which case a second survey had been ordered prior to the
act of 1860, and was pending when that act was passed, Mr. Justice
Field, speaking for the Court, said that whatever question might be
raised as to the jurisdiction of the district court to supervise
the survey previous to that act, there could be none after its
passage. And in
Fossatt's
Case, 2 Wall. 649,
69 U. S. 712
(the same one above reported in 21 How.), Mr. Justice Nelson,
delivering the opinion of the Court, said:
"The fundamental error in the argument is in assuming that the
survey and location of the land confirmed are not proceedings under
the control of the court rendering the decree, and hence not a part
of the judicial action of the court. These proceedings are simply
in execution of the decree, which execution is as much the duty of
the court, and as much within its competency as the hearing of the
cause and the rendition of its judgment; as much so as the
execution
Page 167 U. S. 739
of any other judgment or decree rendered by the court. This
power has been exercised by the Court ever since the Spanish and
French land claims were placed under its jurisdiction, as may be
seen by the cases referred to in the opinion of the Court in this
case when last before us, and in many others to be found in the
reports. The powers of the surveyor general under these acts were
as extensive and as well defined as under the act of 1851. The act
of 1860 did not enlarge or in any way affect his powers. They
remained the same as before."
So far from the claimants' under the decree of confirmation
rendered in 1857 bringing the survey before the district court in
order that any error therein might be corrected, they accepted it
as filed. We say this because the statute requires a patent to
issue to the claimant
"upon his presenting to the General Land Office an authentic
certificate of the confirmation,
and a plat or survey of said
land, duly certified and approved by the surveyor general of
California."
If the claimants under the decree of confirmation did not
themselves present the survey to the General Land Office and ask a
patent in accordance therewith, they accepted a patent based upon
that survey, and plainly showing that it conformed to a survey that
did not embrace, for the purposes of a patent, anything within the
exterior lines of the inner bay of San Pedro. If the Secretary of
the Interior, upon inspecting the survey and the decree of
confirmation, had authority to order a new survey, or to disregard
the part of it excluding lands within the exterior lines of the
inner bay, the record does not show that any effort was made in the
land office to bring about such a result. On the other hand, if the
land office had only a ministerial duty to issue a patent in exact
accordance with the decree of confirmation, no steps were taken to
compel the performance of that duty. We have therefore a case,
brought in 1886, in which the plaintiffs seek to recover the
possession of lands alleged to have been confirmed in 1857 to those
under whom they claim, but which lands in 1858, nearly thirty years
before the commencement of this action, were expressly excluded as
well from the survey to which no
Page 167 U. S. 740
objection was urged as from the patent issued to and accepted by
the claimants under that decree.
We are of opinion that while it may be true in some cases that
an action to recover possession of lands confirmed to a claimant
under the act of 1851 can be maintained before a patent is issued,
yet a patent issued avowedly in execution of such decree was
conclusive between the United States and the claimants, and, until
cancelled, it alone determines, in an action to recover possession,
the location of the lands that passed under the decree. Such is the
effect of former decisions of this Court.
An instructive case upon the subject is
Beard v.
Federy, 3 Wall. 478,
70 U. S. 491,
in which this Court considered the character and effect of a patent
issued upon a confirmation of a claim to land under the laws of
Spain or Mexico. The Court said:
"In the first place, the patent is a deed of the United States.
As a deed, its operation is that of a quitclaim, or rather of a
conveyance of such interest as the United States possessed in the
land, and it takes effect by relation at the time when proceedings
were instituted by the filing of the petition before the board of
land commissioners.
Landes v. Brant, 10 How.
373. In the second place, the patent is a record of the action of
the government upon the title of the claimant as it existed upon
the acquisition of the country. Such acquisition did not affect the
rights of the inhabitants to their property. They retained all such
rights, and were entitled by the law of nations to protection in
them to the same extent as under the former government. The treaty
of cession also stipulated for such protection. The obligation to
which the United States thus succeeded was, of course, political in
its character, and to be discharged in such manner and on such
terms as they might judge expedient. By the Act of March 3, 1851,
they have declared the manner and the terms on which they will
discharge this obligation. They have there established a special
tribunal, before which all claims to lands are to be investigated;
required evidence to be presented respecting the claims; appointed
law officers to appear and contest them on behalf of the
government; authorized appeals from the
Page 167 U. S. 741
decisions of the tribunal, first to the district and then to the
supreme court, and designated officers to survey and measure off
the land when the validity of the claim is finally determined. When
informed by the action of its tribunals and officers that a claim
asserted is valid and entitled to recognition, the government acts,
and issues its patent to the claimant. This instrument is therefore
record evidence of the action of the government upon the title of
the claimant. By it, the government declares that the claim
asserted was valid under the laws of Mexico; that it was entitled
to recognition and protection by the stipulations of the treaty,
and might have been located under the former government, and is
correctly located now, so as to embrace the premises as they are
surveyed and described. As against the government, this record, so
long as it remains unvacated, is conclusive. And it is equally
conclusive against parties claiming under the government by title
subsequent. It is in this effect of the patent as a record of the
government that its security and protection chiefly lie. If parties
asserting interests in lands acquired since the acquisition of the
country could deny and controvert this record, and compel the
patentee, in every suit for his land, to establish the validity of
his claim, his right to its confirmation, and "
brk:
the correctness of the action of the tribunals and officers of
the United States in the location of the same, the patent would
fail to be, as it was intended it should be, an instrument of quiet
and security to its possessor. The patentee would find his title
recognized in one suit and rejected in another, and, if his title
were maintained, he would find his land located in as many
different places as the varying prejudices, interests, or notions
of justice of witnesses and jurymen might suggest. Every fact upon
which the decree and patent rest would be open to contestation. The
intruder, resting solely upon his possession, might insist that the
original claim was invalid, or was not properly located, and
therefore he could not be disturbed by the patentee. No
construction which will lead to such results can be given to the
fifteenth section. The term "third persons," as there used, does
not embrace all persons other than the United States and the
claimants, but
Page 167 U. S. 742
only those who hold superior titles such as will enable them to
resist successfully any action of the government in disposing of
the property.
These principles were recognized in
More v. Steinbach,
127 U. S. 70,
127 U. S. 83,
and again in
Knight v. United States Land Association,
142 U. S. 161,
142 U. S. 187.
See also Meader v.
Norton, 11 Wall. 442,
78 U. S. 457;
Adam v. Norris, 103 U. S. 591,
103 U. S. 593;
Stoneroad v. Stoneroad, 158 U. S. 240;
Russell v. Maxwell Land Grant Co., 158 U.
S. 253.
The decisions of the Supreme Court of California have been to
the same effect.
In
Teschemacher v. Thompson, 18 California 11, 25-26,
the court, after referring to the statute of 1851, said:
"As the last act in the series of proceedings, a patent is to
issue to the claimant. This instrument is not only the deed of the
United States, but it is a solemn record of the government of its
action and judgment with respect to the title of the claimant
existing at the date of the cession. By it, the sovereign power,
which alone could determine the matter, declares that the previous
grant was genuine; that the claim under it was valid, and entitled
to recognition and confirmation by the law of nations and the
stipulations of the treaty, and that the grant was located, or
might have been located, by the former government, and is correctly
located by the new government, so as to embrace the premises as
they are surveyed and described. Whilst this declaration remains of
record, the government itself cannot question its verity, nor can
parties claiming through the government by title subsequent."
In
Chipley v. Farris, 45 Cal. 527, 538, which involved
the title to lands alleged to have been covered by a Mexican grant,
and in respect of which there were proceedings under the Act of
Congress of March 3, 1851, it was contended on one side that the
patent was conclusive upon all points in the case, and put an end
to all questions of lines and boundaries. On the other side, it was
insisted that the confirmation of the claim gave the claimant a
perfect title, and that he could not be divested of title to any
lands embraced in the decree of confirmation by a patent that
excluded a portion of them. The
Page 167 U. S. 743
Supreme Court of California said:
"A patent issued under the act of 1851 is, as has often been
held by this court, the final act in proceedings instituted for the
confirmation of the claim of the patentee to land which had been
granted by the former government, and for the segregation of such
lands from the public lands of the United States, and it is a
record which binds both the government and the claimant, and cannot
be attacked by either party except by direct proceedings instituted
for that purpose.
Leese v. Clark, 18 Cal. 535. While it
stands, the claimant, or those deriving title through him, will not
be permitted to aver that the claim comprised other or different
lands from those mentioned in the patent. . . . It is contended by
the plaintiffs that the survey, which is incorporated into the
patent, does not accord with the decrees of confirmation, and that
they are entitled to rely upon the decree -- which is also
incorporated into the patent -- for title to lands within the
decree, but not within the survey. This position cannot be
maintained consistently with the views already expressed as to the
nature and effect of the patent. The patent purports to convey the
lands described in the survey, and its scope cannot be extended,
nor, on the other hand, can it be limited, by showing that the
decree comprised a greater or less area than the survey. Nor can
the claimant, after admitting, as he must, the conclusive effect of
the patent, make out title to lands not conveyed by the patent by
the production of the proceedings which culminated in the patent.
The patent, while it remains in force, conclusively determines what
lands the claimant was entitled to under his claim and the decree
of confirmation. The claimant can neither reform the patent nor
show that it is in any respect incorrect in an action of
ejectment."
See also Moore v. Wilkinson, 13 Cal. 478;
Cassidy
v. Carr, 48 Cal. 339;
Gallagher v. Riley, 49 Cal.
473, 477;
Carey v. Brown, 58 Cal. 180, 185;
People v.
San Francisco, 75 Cal. 388;
Wright v. Seymour, 69
Cal. 122. And as said by Mr. Justice Field in
Moore v.
Wilkinson, 13 Cal. 488,
"the fifteenth section of the act of Congress of 1851 provides
that the final decree of confirmation and
Page 167 U. S. 744
patent shall be conclusive between the United States and the
claimants only, and shall not affect the interests of third
persons. If conclusive between the United States and the claimants,
it must be equally so between persons holding under either of those
parties."
In our opinion, the adjudged cases and the evidence in the cause
leave no room to doubt the soundness of the conclusions announced
by the supreme court of the state, namely: 1. that the lands in
controversy are not embraced by the patent issued to the
petitioners under the proceedings before the board of land
commissioners appointed under the act of 1851; 2. the patent having
been accepted by the patentees, and being uncancelled, the
plaintiffs in this action, claiming under the patentees, cannot
recover lands not embraced by it, even if such lands are embraced
by the lines established by the decree of confirmation, the
conclusive presumption being that the patent correctly locates the
lands covered by the confirmed grant.
It is proper to say that the Court decides nothing more in this
case than that the plaintiffs are not entitled to recover
possession of the specific lands here in controversy. In this view,
it is unnecessary to decide whether the defendant, Banning, was
entitled to a judgment on his cross-complaint, nor whether the
lands under the navigable waters of the inner bay of San Pedro, and
those here in controversy, or any part thereof, passed to the State
of California upon its admission into the Union, or after the
issuing of the patent of 1858.
Judgment affirmed.