Henshaw v. Bissell
85 U.S. 255 (1873)

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U.S. Supreme Court

Henshaw v. Bissell, 85 U.S. 18 Wall. 255 255 (1873)

Henshaw v. Bissell

85 U.S. (18 Wall.) 255


1. In an action of ejectment where both parties claim the premises in controversy under patents of the United States issued upon a confirmation of grants of land in California made by the former Mexican government, both of which patents cover the premises, the inquiry of the court must extend to the character of the original grants, and the controversy can only be settled by determining which of these two gave the better right to the premises.

2. In determining such controversy, a grant of land identified by specific boundaries or having such descriptive features as to render its identification a mattes of absolute certainty gives a better right to the premises than a floating grant although such floating grant be first surveyed and patented.

3. Semble that as between two floating grants of quantity within the same general tract which is sufficiently large to satisfy both, where neither grantee had received official delivery of possession under the former government and where, as a consequence, there was no measurement or severance of the claim of either front the public domain, the party whose claim is first surveyed and patented will hold the better right to the land covered by his patent, and that the other party will be compelled to have his claim located outside of that patent.

4. The present case distinguished from cases in this Court and in the Supreme Court of California in which imperfect or equitable claims or interests arising since the acquisition of the country were set up against the legal title held under patents.

5. A survey under a grant approved by the district court of the United States under the Act of June 14, 1860, is conclusive as against adverse claimants under floating grants.

6. Whilst proceedings are pending before the tribunals of the United States for the confirmation of claims to land under grants of the former Mexican government, the statute of limitations of California does not run against the right of the claimants to the land subsequently confirmed to them. That statute only begins to run against the title perfected under the legislation of Congress from the date of its consummation.

7. For the application of the doctrine of equitable estoppel such as will prevent a party from asserting his legal rights to property, there must be some intended deception in the conduct or declarations of the party to be estopped or such gross negligence on his part as to amount to constructive fraud. Accordingly, when a claimant under a Mexican grant located his claim on land different front that which was finally surveyed and patented to him, and announced to others that his claim covered the land thus selected, but the government interfered and located the claim elsewhere, held that he was not estopped from asserting a right to the premises surveyed and patented to him.

Page 85 U. S. 256

Bissell brought ejectment in the court below against Henshaw and others to recover one league square of land situated in the County of Butte in the State of California. The action was commenced May 15, 1857, and was tried by the court without a jury by stipulation of the parties. The material facts of the case were as follows:

On the 24th of March, 1852, one Larkin, pursuant to the provisions of the Act of Congress of March 3, 1851, entitled "An act to ascertain and settle private land claims in the State of California," filed a petition with the board of land commissioners created under the act praying a confirmation of a claim made by him to a tract of land containing four square leagues of land, situated in the County of Butte, in the State of California, his claim being founded on a Mexican grant made by Governor Micheltorena to Charles William Flugge on the 21st day of February, A.D. 1844, upon his petition bearing date on the 22d of December, A.D. 1843. Flugge, in his petition, described the land solicited as

"situated on the western side of Feather River, and stretching along ('sobre') the said river from 39�33'45' northern latitude, to 39�48'45', and forming on this line a square one league in breadth. It is called Boga, as it is rendered manifest by the adjoining sketch."

The grant described the land granted as

"consisting of five sitios ganado mayor [square leagues], situate on the westerly side of Feather River, in the center of which there is a piece of land called Boga, the first boundary of the said land beginning at 39�33'45' degrees north latitude, as appears from the corresponding plan."

The grant was made subject to the approval of the Departmental Assembly, and was approved by that body June 13, 1845. The map accompanying the petition, called "sketch" or "plan" in the translation, in the record, lays down the line of latitude intended as the first boundary of the tract and designates it by the degree of latitude specified in the petition and grant. The designation of this line turned out to be inaccurate, the degree of latitude mentioned being several leagues farther north. There was,

Page 85 U. S. 257

however, no difficulty in fixing the line intended on the surface of the earth by measurement, from the junction of the two rivers Sacramento and Feather, which was several leagues south, and which junction was marked by a line designated by a degree of latitude containing a similar error.

The natural objects indicated on the map -- Feather River, which was the eastern boundary, and a creek called Honcut, emptying into Feather River, and three conspicuous peaks in the immediate neighborhood called "The Three Buttes" -- rendered the identification of the tract a matter easy to any surveyor. Notwithstanding these natural objects, Larkin, the claimant, who had acquired the interest of the grantee, contended that the parallel of latitude designated should govern the location of the land, and accordingly he selected the land he desired under the grant several leagues farther north than the line actually intended and finally adopted by the government. The Surveyor General of California made a survey of the tract for the information of the land commission before confirmation, and in that survey he committed a similar error. Subsequent to the confirmation, he made another survey following substantially the preliminary one. With both the surveys thus made Larkin was satisfied, and he stated to persons inquiring that his claim under the grant covered the land selected by him and thus surveyed. The grant was confirmed by the board on the 17th of July, 1855, and an appeal from its decree having been taken by the United States, the Attorney General gave notice that the appeal would not be prosecuted, and on the 9th of February, 1857, the appeal was dismissed by the district court and the claimant allowed to proceed upon the decree of the board as upon a final decree.

The survey of the tract made by the Surveyor General of California, as above stated, under this decree, was set aside by the Commissioner of the General Land Office, and a new survey ordered. A new survey was accordingly made, and, being objected to, was ordered into the district court for

Page 85 U. S. 258

examination under the Act of June 14, 1860. [Footnote 1] This act authorizes the court "to make an order requiring any survey of a private land claim . . . to be returned into it for examination and adjudication," and makes it "the duty of the surveyor general to transmit said survey and plat forthwith to said court." It requires

"That before proceeding to take the testimony or to determine on the validity of any objection so made to the survey and location as aforesaid, the said courts shall cause notice to be given by public advertisement, or in some other form to be prescribed by their rules, to all parties in interest, that objection has been made to such survey and location, and admonishing all parties in interest to intervene for the protection of such interest."

It enacts further that

"On hearing the allegations and proofs, the court shall render judgment thereon, and if in its opinion the location and survey are erroneous, it is hereby authorized to set aside and annul the same, or correct and modify it, and it is hereby made the duty of the surveyor general, on being served with a certified copy of the decree of said court, forthwith to cause a new survey and location to be made or to correct and reform the survey already made so as to conform to the decree of the district court, to which it shall be returned for confirmation and approval."

An appeal is given to the Supreme Court.

Under this act, such proceedings were had that on the 15th of January, 1863, a new survey was approved by decree of the district court, which became final June 26, 1865, by dismissal of an appeal taken therefrom. A patent of the United States was issued for the land, in accordance with this survey, to the claimant October 5, 1865. The plaintiff deraigned by due conveyances from the heirs of the patentee an undivided three-fourths interest in the premises patented, which include the land in controversy.

On the 19th of March, 1852, Dionisio Fernandez, Maximo Fernandez, J. Beeden, and W. R. Basham, filed a petition

Page 85 U. S. 259

under the Act of 1851 with the board of land commissioners praying a confirmation of a claim made by them to a tract containing four square leagues of land situated in the County of Butte and State of California, their claim being founded on a Mexican grant made by Pio Pico, Governor of California, to Maximo and Dionisio Fernandez, on the 12th day of June, A.D. 1846. The grant describes the land granted as

"a tract of unoccupied land in the vicinity of the River Sacramento bounded on the north by the slopes [faldas] of the Sierra Nevada; on the south by John A. Sutter's lands, and on the east by Feather River,"

consisting of four square leagues, and refers to a plan or map accompanying the petition of the grantees. This map represents the land as lying on Feather River, with its northern boundary resting on the faldas of the Sierra Nevada mountains, but with no other descriptive features to indicate its northern or southern boundary. The grant was subject to the approval of the Departmental Assembly, but never received such approval. The country passed into the possession of the United States in the following month, July 7, 1846. Between the slopes or base of the mountains and the line of Sutter's land many leagues intervened.

The grant was confirmed by the board of land commissioners July 17, 1855, and its decree was affirmed by the district court on appeal March 2, 1857. The Attorney General having given notice that no further appeal would be prosecuted, the district court entered an order, on the ninth of the same month, that the claimants be allowed to proceed under the decree of March 2 as a final decree.

A survey of the tract confirmed was made under the directions of the surveyor general, and was approved by him on the 29th of May, 1857. This survey was also approved by the Commissioner of the General Land Office, and on the 14th of October, 1857, a patent of the United States in accordance with it was issued to the claimants. This patent covers the premises in controversy, and the defendants have acquired the interests of the patentees, and have been in the open, continuous, exclusive, and adverse possession of

Page 85 U. S. 260

the premises since 1852, claiming title under the Mexican grant, proceedings for confirmation, and patent of the United States.

The statute of limitations of California, passed in 1863, enacted that no action for the recovery of real property or its possession should be maintained, unless the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises within five years before the commencement of the action, with a proviso in substance to the effect that parties claiming real property under title derived from the Spanish or Mexican governments or the authorities thereof which had not been finally confirmed by the United States or its legally constituted authorities should be limited to five years after its passage, within which to bring an action for the recovery of the property or its possession, but if the title had been thus finally confirmed, the parties should be subject to the same limitations as though they derived their title from any other source -- that is, they should have five years from such final confirmation. The statute in another section declared that by final confirmation was meant the patent of the United States or the final determination of the official survey of the land under the Act of Congress of June 14, 1860. The proviso has since then been repealed, but before the repeal, the present action was brought.

The circuit court gave judgment for the plaintiff for the premises, and the defendants brought the case to this Court on writ of error for review.

Page 85 U. S. 261

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