In a suit to quiet its title to a part of Mare Island in San
Francisco Bay, within the territory acquired from Mexico by the
Treaty of Guadalupe Hidalgo, the United States claimed under a deed
to it in 1853 by Bissell and Aspinwall, who derived their title
through a grant in 1841 by Alvarado, Mexican Governor of
California, to Castro. Respondents claimed under a patent issued by
California to Darlington in 1857, purporting to convey the land in
question as a part of the swamp or overflowed lands granted to the
State
Page 303 U. S. 502
by the Swamp Lands Act of 1850. The Board of Land Commissioners,
created by the Mexican Claims Act of 1851, had confirmed the title
of Bissell and Aspin all in 1855. On appeal, the District Court had
affirmed in 1857, although its decree was unsigned until 1930, when
a
nunc pro tunc decree was entered. While the proceedings
before the Board were pending, Bissell and Aspinwall had conveyed
by deed to the United States.
Held:
1. This Court accepts a concurrent finding by the District Court
and the Circuit Court of Appeals that the lands in question were
within the description of the deed to Castro. P.
303 U. S.
508.
2. An adjudication in a mandamus proceeding brought by the
respondents, that it was the duty of the Secretary of the Interior,
under the Swamp Lands Act and the Act of July 23, 1866, to issue a
patent of the lands here involved to California, and the issuance
of it, are not decisive of any issue in this suit, and it is open
to the United States to show that the lands did not pass under the
Swamp Lands Act. P.
303 U. S.
508.
3. The effect of the Swamp Lands Act was to invest the State
in praesenti with an inchoate title to those lands falling
within the description of the Act, to be perfected as of the date
of the Act when the land should be identified and the patent
issued. It did not include lands which the Government had not
acquired, nor did it free any of them of obligations to which they
were subject when it was passed. P.
303 U. S.
509.
4. Swamp lands in California, being a part of the territory
annexed by the Treaty of Guadalupe Hidalgo, were subject to all
obligations imposed upon the United States with respect to them
under the principles of international law by reason of the
annexation, and by treaty obligations. P.
303 U.S. 510.
5. The obligations assumed by the United States in respect of
the territory annexed by the Treaty of Guadalupe Hidalgo antedated,
and were superior to, any rights derived from the United States
under the Swamp Lands Act. P.
303 U. S.
511.
6. Claimants under the United States by virtue of statutes
disposing of its public lands in California are not "third persons"
within the meaning of the Mexican Claims Act, and confirmation
under that Act of claims under Mexican grants is conclusive upon
all claiming under the United States. P.
303 U. S.
512.
7. Confirmation of titles under the Mexican Claims Act is as
effective and conclusive upon patents under the Swamp Lands Act as
if made at the date of the Treaty. P.
303 U. S.
513.
Page 303 U. S. 503
8. The decree of the Board of Land Commissioners confirming the
title of Bissell and Aspinwall became final and conclusive within
the provisions of the Mexican Claims Act, irrespective of the
validity of the District Court's decree of affirmance. P.
303 U. S.
513.
9. Proceedings under the Mexican Claims Act were not required to
be adversary, and that they were not does not affect the validity
of a determination by the Board. P.
303 U. S.
524.
10. The acquisition by the United States of the title of Bissell
and Aspinwall, while their claim was pending before the Board of
Land Commissioners, did not involve, by reason of the State's
interest under the Swamp Lands Act, any breach of equitable duty to
California. Pp.
303 U. S. 514
et seq.
11. There is no basis in the record for the conclusion that
confirmation of the Bissell and Aspinwall claim by the Board of
Land Commissioners was procured or allowed to stand through an
fraud, concealment, bad faith, or breach of duty to California by
the Government or its officers. P.
303 U. S.
523.
12. The decree of the Board of Land Commissioners stands as a
valid administrative determination of the validity of the Castro
grant, undisturbed by any subsequent judicial proceedings, and is
conclusive upon California and those claiming under her. P.
303 U. S.
524.
91 F.2d 14 reversed.
Certiorari, 302 U.S. 677, to review a decree reversing a decree
of the District Court, which had held in favor of the United States
in a suit brought by it to quiet title.
MR. JUSTICE STONE delivered the opinion of the Court.
This case involves the validity of the title of the United
States to a part of Mare Island in San Francisco Bay,
Page 303 U. S. 504
which was reserved for public purposes by Presidential
Proclamation in 1850, was selected by the Secretary as a navy yard
pursuant to act of Congress, was reserved for that purpose by
Presidential Order in 1853, and, since 1854, has been so used.
The lands in question are in the area acquired as a result of
the Mexican War by the Treaty of Guadalupe Hidalgo, July 4, 1848, 9
Stat. 922, which guaranteed the property rights of Mexicans in the
annexed territory. The United States claims under deed to it in
1853 by Bissell and Aspinwall and another, who derived their title
under grant of May 20, 1841, by Alvarado, Mexican Governor of
California, to Castro, a Mexican citizen, of the island La Yegu
(Mare Island) "in all its extent." Respondents claim under a patent
issued by California to Darlington in 1857, purporting to convey
the land in question as a part of the swamp or overflowed lands
granted to the state by the Swamp Lands Act of Congress, Sept. 28,
1850, c. 84, 9 Stat. 519.
Upon the military occupation of California during the Mexican
War, the United States military commander had proclaimed officially
that Mexican land titles would receive due recognition by the
United States, [
Footnote 1] and
Art. 8 of the Treaty of 1848 with Mexico declared that the property
rights of Mexicans in the annexed territory should be "inviolably
respected." After the admission of California to statehood,
September 9, 1850, 9 Stat. 452, Congress adopted the Mexican Claims
Act of March 3, 1851, 9 Stat. 631, which established a Board of
Land Commissioners with authority, upon petition of those claiming
under Mexican or Spanish grants of land in the annexed territory,
to pass
Page 303 U. S. 505
upon the validity of the grants. Right to a review of the
Board's determination by the District Court, and the Supreme Court
of the United States, was allowed the claimants and the Government.
By § 12 of the Act of August 31, 1852, 10 Stat. 76, 99, the
Attorney General was given authority over appeals from decisions of
the Board adverse to the interests of the United States.
Bissell and Aspinwall, the grantors of the United States, filed
their petition before the Board, seeking confirmation of their
title under the Castro grant of May 20, 1841. After hearing
evidence, the Board confirmed their title by decree of May 8, 1855.
Upon appeal by the United States to the District Court for Northern
California, the decree of the Board was affirmed. Appeal by the
Government to the Supreme Court of the United States, allowed by
the District Court April 1, 1857, was dismissed by the government
in the same year. The decree of the District Court was not signed
or entered until a decree
nunc pro tunc as of March 2,
1857, was signed, filed, and entered on April 15, 1930.
While the proceedings were still pending before the Board, the
claimants, Bissell and Aspinwall, on December 15, 1852, executed a
contract to sell Mare Island to the United States, and on January
4, 1853, for a consideration of $83,491, they joined in a deed to
the United States, without covenants except for further assurance.
The deed purported to convey Mare Island, "including all the Tule
or low land and marsh belonging to the same or which has ever been
reputed or claimed to belong to the same. . . ." On February 28,
1853, they executed a bond in favor of the United States in the sum
of $200,000, conditioned upon the validity of their contract and
the conveyance of "the entire and absolute fee simple Estate in the
said tract of land known as Mare Island." The bond recited that
they
"shall at all times hereafter indemnify and save harmless the
United States against any claim or title
Page 303 U. S. 506
to the said tract called Mare Island and its appurtenances which
may be set up by or through any person or persons claiming under
Victor Castro and his assigns,"
and that they should
"also indemnify and save harmless the United States against any
adverse claim or title in any other person or persons or body
politic which may within two years from the date hereof, be made
and thereafter be successfully established."
The 1857 California patent to Darlington was not recorded until
June 6, 1879, when one Sawyer appears to have acquired the
Darlington claim.
See Sawyer v. Osterhaus, 212 F. 765,
767. The Secretary of the Interior having found that the lands in
question were swamp lands within the Swamp Lands Act of 1850, the
respondents, in 1928, by mandamus, compelled the Secretary to
certify the lands for patent to the California. The court, in
awarding the relief sought at the same time, declared with
reference to the contentions made here, "the mere issuance of
patent to California determines no legal or equitable right of the
United States in the premises."
Work v. United States ex rel.
O'Donnell, 57 App.D.C. 309, 23 F.2d 136, 138.
The present suit was brought by the United States in the
District Court for Northern California to quiet its title.
Respondents, by their answer, put in issue the Government's
ownership of the lands in question and asserted their title as
tenants in common under the Darlington grant. They specifically
challenged the existence and validity of the Castro grant, the
validity of the decrees of confirmation of the title of Bissell and
Aspinwall, and any prescriptive title of the United States. They
prayed, as affirmative relief, that their title be quieted, and, in
support of their prayer, alleged that the lands in question were
not embraced in the Castro grant, and also were swamp lands which
had passed to California under the Swamp Lands Act.
Page 303 U. S. 507
The trial court made findings of fact and reached conclusions of
law in favor of the United States on all these issues. Upon appeal,
the Court of Appeals for the Ninth Circuit reversed, and decreed
"that the United States has no title to the patented lands in suit,
and that the title is in and quieted in" respondents. 91 F.2d 14,
45. The Court of Appeals found that Alvarado, the Mexican Governor
of California, had executed the purported grant of Mare Island to
Castro, including the land in question, but made no finding with
respect to the adverse possession of the United States found by the
District Court. It held that the paper signed by Alvarado was
incompetent evidence of the grant to Castro because of the lack of
filing or recordation of the grant in the Mexican archives,
see
Berreyesa v. United States, 154 U. S. 623, and
that the decrees of the Board of Land Commissioners and of the
District Court on appeal from the Board, confirming the Castro
title, were null and void and worthless as evidence because the
United States had purchased the interest of the claimants Bissell
and Aspinwall while the proceedings were pending before the Board.
It characterized the proceeding as collusive and the action of the
United States in acquiring title during its pendency as breach of a
trust duty assumed under the Swamp Lands Act to convey swamp lands
to California, and as, in effect, a fraud upon the state. It
rejected the contention of the United States that the pending Board
proceeding for confirmation of the Castro grant withdrew the land
in question from the operation of the Swamp Lands Act, which is the
source of California's and respondents' alleged title to the land,
and held that the reservations of the land made by presidential
proclamations for military and naval purposes were ineffective,
because California had previously acquired an inchoate title under
the Swamp Lands Act.
Page 303 U. S. 508
Respondents renew here the contention made below, based on an
elaborate review of the evidence, that the swamp or overflowed
lands in question were below high tide, and were not within the
exterior boundaries of Mare Island as it was known at the time of
the Castro grant, and so were not intended by the grantor to be,
and were not in fact, included in the description of the grant.
Resolution of this issue turns upon appraisal of the evidence and
the inferences to be drawn from it. As both courts below have found
against respondents on this issue, we shall not reexamine the
evidence here. We accept the concurrent findings as establishing
the fact that the lands in question were within the description of
the deed to Castro.
United States v. State Investment Co.,
264 U. S. 206,
264 U. S. 211;
Shappirio v. Goldberg, 192 U. S. 232;
cf. Page v. Rogers, 211 U. S. 575;
Washington Securities Co. v. United States, 234 U. S.
76;
National Bank v. Shackelford, 239 U. S.
81;
Risty v. Chicago, R.I. & P. R. Co.,
270 U. S. 378.
Nor is the fact that a patent has issued to California, in
obedience to the judgment in the mandamus proceeding brought by
respondents in
Work v. United States ex rel. O'Donnell,
supra, decisive of any issue presented here. Upon the
Secretary's approval of the survey of the land in question by the
United States Surveyor General for the California, showing the
lands to be swamp and overflowed at the date of the Swamp Lands
Act, and the determination by the Secretary that the lands in
question were then swamp and overflowed, it became his duty under
the Swamp Lands Act, and under the Act of Congress of July 23,
1866, 14 Stat. 218, to certify the lands for patent to the State.
See Tubbs v. Wilhoit, 138 U. S. 134. But
the adjudication in mandamus that it was the duty of the Secretary
to issue the patent under these acts, and the issuance of it,
determined no legal or equitable right of the United States
Page 303 U. S. 509
in the premises. It remains open to the United States in this or
any other appropriate proceeding to show that the lands did not
pass under the Swamp Lands Act.
United States v. Schurz,
102 U. S. 378,
102 U. S. 404;
St. Louis Smelting Co. v. Kemp, 104 U.
S. 636,
104 U. S. 641,
104 U. S. 646;
United States v. De la Paz Valdez de Conway, 175 U. S.
60,
175 U. S. 68,
and cases cited.
See Work v. United States ex rel. O'Donnell,
supra, 137-138.
We accordingly direct our attention to the question, deemed
pivotal below, whether, as the Court of Appeals held, the
confirmation of the title of Bissell and Aspinwall under the Castro
grant by the Board of Land Commissioners was invalid, so that the
United States neither reserved nor acquired a title valid as
against the California and respondents who claim under her. In
answering, it will be an aid to adequate understanding of the
points in issue to consider first the effect of the confirmation by
the Board, without reference to the alleged collusion and
fraudulent action of the United States or any of its officers.
The Swamp Lands Act of 1850 was effective to transfer an
interest in the lands described in the act only so far as they were
part of the public domain of the United States, and thus subject to
the disposal of Congress. The act in terms purported to grant to
the several states all swamp and overflowed lands located within
their respective boundaries "which shall remain unsold at the
passage of this Act." Section 2 made it the duty of the Secretary
of Interior "to make out an accurate list and plats" of the lands
described by the act and to "cause a patent to be issued to the
State therefor." The effect of these provisions was to invest the
state
in praesenti with an inchoate title to those lands
falling within the description of the act, to be perfected as of
the date of the act when the land should be identified and the
patent issued as provided by § 2.
Wright v. Roseberry,
121 U. S. 488;
United
Page 303 U. S. 510
States v. Minnesota, 270 U. S. 181,
270 U. S.
202-203. By its terms, the Swamp Lands Act did not
include swamp lands which the Government had sold, and it could not
include lands which the Government had not acquired, or free any of
them of obligations to which they were subject when the act was
passed.
United States v. Minnesota, supra, 270 U. S.
206.
It is a familiar principle of public land law that statutes
providing generally for disposal of the public domain are
inapplicable to lands which are not unqualifiedly subject to sale
and disposition because they have been appropriated to some other
purpose.
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S. 513;
Missouri, K. & T. Ry. Co. v. Roberts, 152 U.
S. 114,
152 U. S. 119;
Scott v. Carew, 196 U. S. 100.
This has been held to be the case even though the appropriation be
afterwards set aside.
Leavenworth, L. & G. R. Co. v. United
States, 92 U. S. 733,
92 U. S. 741,
92 U. S. 745;
Newhall v. Sanger, 92 U. S. 761. The
general words of the granting act are to be read as subject to such
exception.
Scott v. Carew, supra, 196 U. S.
111-112;
Louisiana v. Garfield, 211 U. S.
70,
211 U. S. 77;
United States v. Minnesota, supra, 270 U. S.
206.
Swamp lands in California, being a part of the territory annexed
by the Treaty of Guadalupe Hidalgo, were subject to all obligations
imposed upon the United States with respect to them under the
principles of international law by reason of the annexation, and by
its treaty obligations. [
Footnote
2] Article 8 of the treaty stipulated
Page 303 U. S. 511
that Mexicans then established in the annexed territory should
retain their property within that area, and that property belonging
to Mexicans not established there should be respected. The protocol
of May 26, 1848, interpretative of the treaty, which preceded the
exchange of ratifications on May 30, 1848, declared that the grants
of land made by Mexico in the ceded territory
"preserve the legal value which they may possess, and the
grantees may cause their legitimate [titles] to be acknowledged
before the American tribunals,"
and that,
"Conformably to the law of the United States, legitimate titles
to every description of property, personal and real, existing in
the ceded territories are those which were legitimate titles under
the Mexican law in California . . . up to the 13th of May, 1846. .
. ."
61st Cong., 1st Sess., Sen.Doc. No. 357, pp. 1119-1120.
The obligations thus assumed by the United States antedated the
Swamp Lands Act, and were superior to any rights derived from the
United States under that act. The obligations were political in
character, to be discharged in such manner and upon such terms as
the United States might deem expedient in conformity to its treaty
obligations.
Beard v.
Federy, 3 Wall. 478;
Grisar v.
McDowell, 6 Wall. 363,
73 U. S. 379;
San Francisco v. LeRoy, 138 U. S. 656;
Knight v. United Land Assn., 142 U.
S. 161,
142 U. S.
183-184. While the treaty provided that the claimants
under Mexican grants might cause their titles to be acknowledged
before American tribunals, it was silent as to the mode of
selection or creation of such tribunals. The United States was left
free to provide for them in its own way.
Cf. 54 U.
S. Ferreira, 13 How. 40,
54 U. S. 45. It
could relegate all the multitude of claims under the Mexican grants
to the ordinary procedure of courts, with the inevitable delays and
confusion affecting land titles in the vast annexed area.
See
Board v. Federy,
Page 303 U. S. 512
supra, 70 U. S. 493.
It could set up an administrative tribunal acting by a more summary
procedure [
Footnote 3] designed
to establish with finality the status of all the Mexican grants as
of the date of annexation. It chose the latter course by the
creation of the Board of Land Commissioners, by the Act of March 3,
1851, 9 Stat. 631.
Under that Act, the General Land Office was required to issue a
patent for all claims finally confirmed "by the said commissioners,
or by the said District or Supreme Court." Section 13. The Act
declared that final decision of the Board, or the District or the
Supreme Court should "be conclusive between the United States and
the said claimants only, and shall not affect the interests of
third persons." Section 15. Lands, the claim for which should be
finally rejected, and lands claims to which should not be presented
to the Board within two years of the date of the Act, were to be
"deemed, held, and considered as part of the public domain."
Section 13.
The primary purpose of the Mexican Claims Act was the
performance by the United States of its treaty obligations to quiet
the titles of the claimants under Spanish and Mexican grants. But a
necessary consequence of proceeding before the Commission, and one
incidental to the determination of the validity of the titles of
such claimants, was a determination whether, by the cession, the
lands in question had become a part of the public domain of the
United States. It is evident that the treaty obligations to quiet
the title of claimants under Mexican grants would be defeated, and
the Mexican Claims Act would fail of its purpose, if the finality
of the Board's confirmation of claims under Mexican grants could be
challenged by persons claiming under grants of public lands by the
United States. For that reason, it has been consistently held that
claimants under the United States, by virtue of statutes disposing
of its public lands in California,
Page 303 U. S. 513
are not "third persons" within the meaning of the Mexican Claims
Act, and that confirmation under that act of claims under Mexican
grants is conclusive upon all those claiming under the United
States.
Beard v. Federy, supra, 70 U. S. 493;
More v. Steinbach, 127 U. S. 70;
San Francisco v. LeRoy, supra; Knight v. United Land Assn.,
supra, 142 U. S. 184;
Ward v. Mulford, 32 Cal. 365, 370;
People v. San
Francisco, 75 Cal. 388, 400, 17 P. 522;
cf. United States
v. Coronado Beach Co., 255 U. S. 472,
255 U. S. 488.
Such is the effect of confirmation by the Board of titles set up
under Mexican grants, upon claimants under the Swamp Lands Act to
lands in the annexed territory. That the Swamp Lands Act antedated
the Mexican Claims Act and the confirmation of titles under it, is
immaterial; for those claiming under the Swamp Lands Act took
cum onere -- subject to the treaty obligations of the
United States and whatever procedure the United States might adopt
in performance of those obligations for the quieting of titles
under Mexican grants. Confirmation, when made, was as effective and
conclusive upon all patents under the Swamp Lands Act as if made at
the date of the treaty.
San Francisco v. LeRoy, supra,
138 U. S. 670;
Knight v. United Land Assn., supra, 142 U. S. 185;
Ward v. Mulford, supra, 370.
We do not stop to discuss the point, much argued at the Bar and
in the briefs, whether the decree of the District Court affirming
the Board's decree of confirmation was void or otherwise defective
because not signed at or about the time it was rendered.
See
Mitchell v. Overman, 103 U. S. 62,
103 U. S. 64-65;
In re Wight, 134 U. S. 136;
United States v. Stoller, 180 F. 910, 912, 913;
International Harvester Co. v. Carlson, 217 F. 736, 738.
If it be taken that the Government has failed to prosecute its
appeal to final decree in the District Court, it is enough that the
decree of the Board has never been set aside or otherwise
disturbed. If the appeal was not still pending when the decree of
the District Court was entered
nunc pro tunc in 1930, the
decree
Page 303 U. S. 514
of the Board remains as effective as if no appeal had been
taken, and has become final and conclusive within the provisions of
the act.
Beard v. Federy, supra; 58 U.
S. Ritchie, 17 How. 525.
Apart from the considerations growing out of the purchase by the
Government of the Bissell and Aspinwall title, now to be discussed,
the decree of the Board, if not that of the District Court, must be
taken as conclusive on respondents, and, as to them, it is not open
to this or any other court to reexamine the existence or validity
of the Castro grant.
The holding of the court below that the acquisition by the
United States of the title of Bissell and Aspinwall, while their
claim was pending before the Board of Land Commissioners, involved
a breach of equitable duty to California of such character as to
preclude the Government from taking any advantage of the Board's
confirmation of the Castro grant, is predicated upon the assumption
that, by virtue of the Swamp Lands Act, the United States became,
in effect, the trustee of the lands in question for the benefit of
the state and its successors in interest. It is true that, in a
loose and general sense, the United States, pending issuance of a
patent under other land grant acts, has been referred to as a
trustee of lands to be patented,
Cornelius v. Kessel,
128 U. S. 456,
128 U. S.
460-461;
Benson Mining & Smelting Co. v. Alta
Mining & Smelting Co., 145 U. S. 428,
145 U. S. 432;
Orchard v. Alexander, 157 U. S. 372,
157 U. S. 383;
United States v. Anderson, 194 U.
S. 394;
Knapp v. Alexander-Edgar Lumber Co.,
237 U. S. 162;
Payne v. New Mexico, 255 U. S. 367, and
the right of the state, before patent, to lands within the purview
of the Swamp Lands Act, has been referred to as "equitable,"
Michigan Land & Lumber Co. v. Rust, 168 U.
S. 589,
168 U. S. 591;
Brown v. Hitchcock, 173 U. S. 473,
173 U. S.
476.
Even where the right of the state under the Swamp Lands Act is
unqualified, it would perhaps be more accurate
Page 303 U. S. 515
to say that the United States is no more than a donor granting
without warranty those lands falling within the description and the
purview of the statute, subject to a duty imposed by the statute to
perfect by survey and patent such inchoate title as it had conveyed
to the state. Beyond this, the United States, by the enactment of
the Swamp Lands Act, assumed no duty. It gave no warranty of title.
It assumed no obligations to the grantee subjecting itself to other
claims of equitable duty. Sale of the lands to others does not make
it accountable as a trustee of the proceeds.
United States v.
Louisiana, 127 U. S. 182,
127 U. S. 191.
In any case, the duty assumed by the United States under the
treaty, and the concomitant power thus reserved to it, was
inconsistent with the assumption of trust duties toward the state
by reason of the Swamp Lands Act. In the execution of that duty, it
was free to adopt any mode of procedure it saw fit for adjudication
of the titles of claimants under Mexican grants. Even after the
submission of their claims to the Board of Land Commissioners, it
could withdraw them from decision of the Board and courts and
adjudicate them by congressional action.
Grisar v. McDowell,
supra, 73 U. S. 379.
The tentative recognition by the treaty of the rights of the
Mexican grantees and the full latitude which the Government had
reserved to itself in the choice of modes of disposition of those
claims were incompatible with the assumption of trust duties by the
Government with respect to them pending their final disposition.
There is thus a complete absence of support for the supposed
analogy between a sovereign government in such circumstances and a
private grantor who has conveyed with warranty of title or who has
undertaken by executory contract to convey title which he possesses
or subsequently acquires, and who, because he has thus assumed
equitable duties, is sometimes spoken of as a trustee.
Page 303 U. S. 516
The Mexican Claims Act itself neither imposed nor recognized
such duties. In authorizing the Board to pass on claims presented
to it upon the evidence adduced by the claimant and the United
States, it required no notice to be given to any third party. It
gave to the Government the right to representation by an agent and
made it his duty to collect testimony "in behalf of the United
States," and to attend meetings of the Board. Section 4. But the
role of the Government was not that of a litigant. It was, rather,
as the Act itself declared, § 4, supervisory: "to superintend the
interests of the United States" in the performance, through an
administrative agency, of its treaty obligation to ascertain for
the Mexican claimants, and for itself, what lands had been
withdrawn from the public domain by the Mexican grants.
"The United States did not appear in the courts as a contentious
litigant, but as a great nation, acknowledging their obligation to
recognise as valid every authentic title, and soliciting exact
information to direct their executive Government to comply with
that obligation."
United States v.
Fossatt, 21 How. 445,
62 U. S.
450-451.
At no stage of the Government's dealing with the titles under
Mexican grants, either under the Swamp Lands Act or under the
Mexican Claims Act, can we find the assumption on the part of the
Government of any duty toward the state with respect to the swamp
and overflowed lands other than that specified in the Swamp Lands
Act itself, and that duty was fully performed when it issued to the
state its patent to the lands in question in response to the
mandate in
Work v. United States ex rel. O'Donnell,
supra.
We turn now to the consideration of the circumstances relied on
to establish the proposition that the title now asserted by the
United States was acquired as the result of a purposeful or
conscious scheme to deprive the state of possible benefits under
the Swamp Lands Act by means
Page 303 U. S. 517
of collusive proceedings before the Board of Land Commissioners
and the District Court. At the outset, it is to be noted that this
contention first emerges in this case in the opinion of the Court
of Appeals below. There had previously been no suggestion of such a
contention in any pleading or assignment of error, nor had the
Government or its officers been charged with any fraud, collusion,
concealment, or bad faith. The respondents, in seeking affirmative
relief, made no assertion of that character. In such a state of the
record, dereliction of officers of the United States in the
performance of official duty is not lightly to be inferred
seventy-five years after the event, and a court should be slow to
find what would be in effect a fraudulent conspiracy on their part
to deprive the state of the benefits of the Swamp Lands Act.
Upon the selection of Mare Island as a navy yard by the
Secretary of the Navy, Mr. Crittenden, then Attorney General, had
given an opinion to the effect that Mare Island was a part of the
public domain subject only to the Castro grant, the claim under
which was then pending before the Board of Land Commissioners. He
concluded that there was sufficient basis for the claim to justify
purchase of the claimant's title, which he recommended as a
protection of the interests of the Government.
See Opinion
of Attorney General Cushing given to the Secretary of the Navy,
April 9, 1853. 8 Op.Atty.Gen. 422. Then followed the purchase from
Bissell and Aspinwall in the circumstances already detailed. Those
circumstances justify no inference that the defense of their claim
was dishonest. The Government had far more to gain than to lose by
defeating the Castro grant. As the grant covered the island "in all
its extent," both upland and swamp, rejection of the claim would
not only have given to the Government a return of the purchase
price and expenses as guaranteed by its bond for title, but would
have established its right to the entire island as a part
Page 303 U. S. 518
of the public domain, except perhaps the swamp land.
Cf.
Newhall v. Sanger, supra. The validity of the Castro grant was
the only matter with respect to which the Board could render a
decree which, under the procedure of the Mexican Claims Act, could
become final and conclusive as to the claimant and the Government.
So far as appears, each was as much concerned with the
determination of that question after as before the Bissell and
Aspinwall deed and bond, for accordingly as it was decided one way
or the other, the one or the other stood to gain an amount equal to
the purchase price of the property. The reasonableness of the
purchase price is not challenged. The only effect of the deed and
bond was to protect the Government against loss of the opportunity
to acquire the land for a navy yard in case the property should be
disposed of to some third person pending the Board's decision, and
the Castro grant should be upheld.
Upon the opinion of Attorney General Cushing, already mentioned,
the Court of Appeals placed its chief, indeed its only, reliance
for the conclusion that there was conscious dereliction on the part
of the Government. In this opinion, the Attorney General spoke of
the Government's purchase of the Bissell and Aspinwall title as an
accomplished fact, but nevertheless recommended that the claim be
vigorously contested. This is said to be so inconsistent with the
Government's dismissal of its appeal four years later as to
indicate a "purposeful shift of position" to the detriment of the
state, from which bad faith is to be inferred. But an attentive
reading of the opinion in the light of subsequent events reveals no
such inconsistency. In repudiating any thought that the claim
should not be contested, he declared:
"But I, as Attorney General, in view of the special duties
imposed on me by the acts for the settlement of private land claims
in California,
Page 303 U. S. 519
and of my general obligation to look after the rights of the
United States in the premises, cannot pursue this course. I must
not admit that the purchase of the Castro claim by the United
States operates in any way, either by implication or otherwise, as
a waiver of the general rights of the United States in the
premises, or as an assent, either express or implied, to the
pretended validity of the grant to Castro."
He pointed out that the claim
"involves difficult and important questions of law which the
Commissioners, to be sure, have decided in favor of the claimants,
[
Footnote 4] but which the
Supreme Court may decide otherwise,"
and that he felt bound to protect the interests of the United
States by an appeal because, as a precedent, the case would affect
"many millions worth of land in California which is otherwise
public domain."
After pointing out that the California retained title to
tideland below high water mark, and that the United States could
not enjoy the use of Mare Island as a naval depot while its shores
belonged to the state, he concluded with the recommendation
that
"California be invited to relinquish to the United States
whatever claim, if any, she may have to the shores or the
overflowed land of Mare Island."
The opinion discloses that he had no thought of depriving the
state of any rights which it might have under the Swamp Lands Act,
for it affirmatively shows that he was of opinion (erroneously as
was later decided in
Beard v. Federy, supra, and cases
following it) that no rights of California under the Swamp Lands
Act would be affected by the decisions of the Board.
With but little research, it becomes apparent that the important
questions of law affecting "many millions worth of
Page 303 U. S. 520
land in California," which were involved in the Bissell and
Aspinwall claim and which the Commissioners had already decided, in
other cases, were unrelated to any rights of the state under the
Swamp Lands Act, and were in fact decided against the Government by
this Court after the Attorney General had rendered his opinion and
before the dismissal of the Government's appeal from the decree of
the District Court in the Bissell and Aspinwall case. [
Footnote 5] The opinion
Page 303 U. S. 521
evidences the strongest motives on the Government's part to
contest the Bissell and Aspinwall claim, and the firm determination
to prosecute the contest with vigor. The record of the proceedings
before the Board plainly shows adherence to this purpose. Witnesses
were produced by the Government to discredit the Castro grant;
those produced by the claimants, including Alvarado who testified
to his execution of the grant, were so vigorously cross-examined as
to excite the Board's "strong suspicion" as to the authenticity of
the Castro grant, which it nevertheless sustained in the light of
all the evidence. Only after the "important questions of law" had
been decided by this Court against the Government did it relax its
efforts. Its change of position then, though purposeful, can hardly
be said to be evidence of bad purpose.
The deed of Bissell and Aspinwall to the Government was recorded
in Solano county, Cal., April 18, 1853.
Page 303 U. S. 522
The opinion of Attorney General Cushing was, on October 3, 1853,
transmitted by the Secretary of the Navy to the Governor of
California, who submitted it to the California Legislature January
4, 1854. California Senate Journal, 1854, 37; Appendix, Doc. No. 4.
Being then fully advised by that opinion of the Government's
purchase of the Bissell and Aspinwall claim and of its purpose to
press for a determination of the validity of the Castro grant by
the Board of Land Commissioners, the California Legislature, by Act
of May 11, 1854, Cal.Stat. 1854, c. 43, pp. 48, 49, consented to
the purchase of Mare Island for the purpose of establishing there a
navy yard and proclaimed that all the lands within its limits were
to be perpetually free of state taxation. It ceded to the
Government lands on the island which are not here involved, with
the proviso that the consent to the purchase and the cession to the
government should not
"be construed in aid or support, directly or impliedly, of any
conveyance or bond for title to the United States of the same lands
heretofore made, or which may hereafter be made . . . or as a
recognition on the part of the California of any claim, title or
grant heretofore asserted or set up, or which may hereafter be
asserted or set by any person or persons. . . ."
The only bond for title then relating to Mare Island which is
disclosed by the record was that of Bissell and Aspinwall, and the
apparent purpose of the proviso was that the state's consent to the
purchase should not enure to the benefit of Bissell and Aspinwall
or any others in like situation, so as to relieve them from the
obligation on their bond in the event that the Castro grant should
be held invalid by the Board of Land Commissioners. Occupation of
the island by the United States as a naval station followed in
September, 1854. The Board rendered its decree of confirmation of
the Castro grant May 8, 1855. The following memorandum appears
among the papers in the case in the district court:
"The United States being now the owner of
Page 303 U. S. 523
the titles of appellees, a confirmation of this claim enures to
the benefit of the Government and no objection is therefor made to
a decree in favor of the validity of the claim."
Thus, instead of action covertly taken by the Government with
the purpose of depriving the state of any of its rights in the
premises, we find high officers of the Government proclaiming in
documents submitted to the Government and Legislature of California
the fact of the Government's acquisition of a conditional interest
in the Bissell and Aspinwall claim, and its purpose to secure a
determination of the validity of the grant by the Board of Land
Commissioners. We see that, after this full disclosure, the state
expressed consent to the purchase in such a way as to save to the
Government unimpaired its rights under the Bissell and Aspinwall
bond. Only after the conformation of the Castro grant by the Board
of Land Commissioners, and only after the important questions of
law on which the Government relied to defeat the grant had been
decided against it by this Court in other cases, did the Government
relinquish its purpose to contest the Bissell and Aspinwall claim.
We can find in this record no basis for saying that the
confirmation by the Board was procured or allowed to stand through
any fraud, concealment, bad faith, or breach of duty to California
by the Government or its officers.
The contention that the decree of the Board is open to
collateral attack as a nullity is thus reduced to the assertion
that, by reason of the conditional interest of the Government under
the Bissell and Aspinwall deed and bond, the contest before the
Board may have been in some degree less vigorous than it otherwise
would have been. To this the answer is that, as already shown, the
Government owed no duty to the state to contest the claim, and
that, in any case, the proceeding before the Board was not
adversary.
Page 303 U. S. 524
The Board was an administrative body, created as the act
declares "to ascertain and settle the private Land Claims in the
California," by proceedings which were not required to e
controversial. It was begun without notice to any other party.
While the attendance by the "agent" of the United States was
required in order that he might "superintend the interests of the
United States," it did not appear in the role of litigant.
United States v. Fossatt, supra. The Board was an
administrative body, not a court.
United States v. Ritchie,
supra; United States v. Fossatt, supra. Review of its
proceedings by direct appeal was not within the judicial power, and
reexamination of its determinations by the District Court and the
United States Supreme Court was sustained only on the theory that
the appeal to the District Court was the initiation of a suit to
set aside the determination of the Board, in the course of which
suit further evidence might be taken.
United States v. Ritchie,
supra, 58 U. S.
533-534;
Grisar v. McDowell, supra,
73 U. S. 375.
Since the statute under which the Board was created did not require
adversary proceedings, the validity of its administrative
determination was unaffected by their absence. The decree of the
Board, which stands undisturbed by any subsequent proceedings in
the courts, cannot be disregarded as a nullity.
We conclude that the acquisition of the interest in the Bissell
and Aspinwall title by the United States did not undermine that
determination; that the proceedings in connection with their claim
before the Board of Land Commissioners were free from fraud, bad
faith, concealment, or overreaching, and of any breach of duty to
California on the part of the United States or its officers, and
that the decree of the Board stands undisturbed as a valid
administrative determination of the validity of the Castro grant,
and, as such, is conclusive upon the State
Page 303 U. S. 525
of California and on respondents who claim under her. The decree
below must accordingly be
Reversed.
MR. JUSTICE CARDOZO and MR. JUSTICE REED took no part in the
consideration or decision of this case.
[
Footnote 1]
Proclamation to the Inhabitants of California, July 7, 1846, at
Monterey, by Commodore John D. Sloat, 29th Cong., 2d Sess., House
Doc. No. 4, pp. 644-645; Proclamation, August 17, 1846 at Ciudad de
Los Angeles, by Commodore and Governor R. F. Stockton,
id., pp. 669-670.
[
Footnote 2]
The obligation imposed by the principles of international law to
respect property rights within annexed territory is substantially
that recognized by the treaty,
Soulard v. United
States, 4 Pet. 511;
United
States v. Percheman, 7 Pet. 51,
32 U. S. 87;
Strother v.
Lucas, 12 Pet. 410,
37 U. S. 436;
United States v. De
Repentigny, 5 Wall. 211,
72 U. S. 260;
Knight v. United Land Assn., 142 U.
S. 161,
142 U. S. 184,
and comprehends not only formal grants,
"but also any concession, warrant, order or permission to
survey, possess or settle, whether evidenced by writing or parol,
or presumed from possession."
Strother v. Lucas, supra, 37 U. S. 436.
See Soulard v. United States, supra.
[
Footnote 3]
As to the number of the claims and the celerity with which they
were disposed of,
see 8 Op.Atty.Gen. 515.
[
Footnote 4]
The reference is obviously to claimants other than Bissell and
Aspinwall, for, at that time, there had been no hearings by the
Board on the claim of the latter, and the Board had rendered no
decision with respect to it.
[
Footnote 5]
Of the "difficult and important questions of law" which were
said in Attorney General Cushing's opinion to the Secretary of the
Navy to be involved in the claim of Bissell and Aspinwall, one,
mentioned in the letter itself, was whether a grant by a Mexican
governor was valid in the absence of approval by the "Departmental
Deputation." This question was answered in the affirmative by the
Board, December 27, 1852, in passing on the Fremont claim; January
5, 1853, in the Larkin case, and in preliminary opinions in the
Cervantes and Reading cases, rendered August 3, 1852, and August 9,
1852, respectively. This Court agreed with the Board on the general
proposition in
Fremont v. United
States 17 How. 542,
58 U. S. 563
(March 10, 1855);
United States v.
Reading, 18 How. 1,
59 U. S. 7-8
(January 11, 1856);
United States v.
Larkin, 18 How. 557,
59 U. S. 563
(May 12, 1856). A special rule to the contrary was later pronounced
as to island grants in
United States v.
Osio, 23 How. 273, decided March 12, 1860, but it
cannot be said from the present record whether that rule was
applicable to the Castro grant.
Also involved in the claim of Bissell and Aspinwall were five
other questions, each of which had been decided by the Board before
the Attorney General's opinion of April 9, 1853, and before the
Board's later confirmation of the Bissell and Aspinwall claim. Each
was decided by this Court against the government before its
dismissal of the appeal which it had taken April 1, 1857, from the
District Court's affirmance of that confirmation. The questions
were:
(a) Whether the Mexican provincial governors had power to grant
lands. It was decided in the affirmative in the preliminary opinion
on the Cervantes claim, rendered by the Board August 3, 1852, and
in a number of subsequent decisions, and was settled by this Court
March 5, 1857, in
United States v.
Peralta, 19 How. 343.
(b) Whether the Mexican governors had power to grant any lands
within ten leagues of the seacoast -- the so-called littoral league
question. It was decided adversely to the government in a
preliminary opinion in the Cervantes case, rendered by the Board
August 3, 1852, and was settled by this Court May 12, 1856, in
De Arguello v. United
States, 18 How. 539, and
United
States v. Cervantes, 18 How. 553.
(c) Whether the grantee's failure to furnish a map
(
diseno) with his petition for a grant constitutes a fatal
defect in title. It was decided by the Board adversely to the
government in the Fremont case, December 27, 1852, and was settled
by this Court March 10, 1855, in
Fremont v. United States,
supra.
(d) Whether a grant is void for want of a condition requiring
the grantee to take possession of and cultivate the land within a
certain time. It was decided by the Board in the negative in the
Larkin case, January 3, 1853, and was settled by this Court May 12,
1856, in
United States v. Larkin, supra.
(e) Whether a grant is void for want of a clause informing the
grantee that it would become indefeasible only after approval by
the Departmental Deputation. It was involved in the Larkin claim,
confirmed by the Board January 3, 1853, and was settled by this
Court May 12, 1856, in
United States v. Larkin, supra.
Chronological data have been secured from Hoffman's Land cases,
Appendix, and from the records filed in this Court in the cited
cases.