1. Where the City of San Francisco, prior to the adoption of the
Van Ness Ordinance, made a conveyance of certain lots within the
city to the United States, and another party sets up a claim to
them, under the ordinance,
held that the conveyance barred
the claim.
2. The United States filed a bill to quiet the title to certain
lots in its possession in San Francisco; the defendant set up, by
way of estoppel, judgments in ejectment rendered by the state
courts at the suit of his grantor, against officers of the
government then in possession as its agents, in whose behalf the
district attorney, and additional counsel employed by the Secretary
of the Treasury, appeared. The title was contested on the trial.
Held that these facts constitute no estoppel against the
government, although, in California, a judgment in ejectment is, in
ordinary cases, an estoppel against the tenant in possession, and
the landlord who had notice of the suit.
3. The United States cannot be estopped by proceedings against
its tenants or agents, nor be sued without its consent, given by
act of Congress.
4. Without such an act, no direct proceedings will lie at the
suit of an individual against the United States or its property,
and its officer cannot waive its privilege in this respect or
lawfully consent that such a suit may be prosecuted so as to bind
it.
5. The United States can only hold possession of its property by
means of its officers or agents, and to allow them to be
dispossessed by suit would enable parties always to compel it to
litigate its rights. Therefore, when the pleadings or the proofs
disclose that its possession is assailed, the jurisdiction of the
court ought to cease.
6. The cases in which public property may be subjected to claims
against it are those in which it is, by the act of the government,
in juridical possession or has become so without violating the
possession of the government and the latter seeks the aid of the
court to establish or reclaim its rights therein. In such cases, it
is equitable that the prior rights of others to the same property
should be adjudicated and allowed.
7.
The Siren, 7
Wall. 152, and
The Davis, 10
Wall. 15, cited and approved.
The facts are stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This case arises upon a bill to quiet title filed by the United
States against the appellant, Carr, and various other persons, upon
which a decree was rendered by the court below in favor of
Page 98 U. S. 434
the plaintiff. Carr appealed from this decree. The controversy
relates to certain lands at San Francisco, being two lots, each
fifty varas square, on Rincon Point, which are claimed by the
government as having, with other adjoining lands, been set apart
and reserved for public use in 1847 and as having been conveyed to
the United States by the City of San Francisco in 1852. The
appellant claims the lots in question under one Thomas White,
alleging that said White occupied the same in 1849, and that he and
his grantees continued to occupy the same until June, 1855, when
the Van Ness Ordinance was passed.
It is conceded that the premises in question were once pueblo
lands belonging to the municipality of San Francisco, but as such
lands, until conveyed to private parties, were subject to the
public uses of the government both before and after the conquest of
the country by the United States, it is evident that the latter had
the undoubted right to make such appropriation thereof for public
use as it might see fit. It is denied, however, that any such
appropriation was ever made by the proper authority. It appears
from the pleadings and evidence in the case that from the first
occupation of San Francisco by the United States in 1847, the
military authorities of the government set apart Rincon Point
(including the premises in question) for the use of the government,
but that after the discovery of gold in 1849, the officers had much
ado to keep them clear of trespassers, who entered upon, and
endeavored to appropriate the same. In November, 1849, a lease of
this tract, with others, was given by the officer in command at San
Francisco to one Thomas Shillaber, apparently for the purpose of
keeping possession on behalf of the government. This lease was
approved by the Secretary of the Interior. About 1852, a marine
hospital was built by the government on the southeast half of the
block on Rincon Point, bounded by Folsom, Harrison, Spear, and Main
Streets. The whole block was 550 feet in length from Harrison to
Folsom Street, and 275 feet in width from Main to Spear Street. The
southeast half was 275 feet square, forming four lots, each fifty
varas, or 137 1/2 feet, square, numbered 1, 2, 3, and 4. Numbers 1
and 2 adjoined Harrison Street, 3 and 4 adjoined 1 and 2. Lots 3
and 4 are the premises in controversy.
Page 98 U. S. 435
The hospital building was actually constructed on lots 1 and 2,
standing within four or five feet of lots 3 and 4, and the latter
were occupied by buildings or for yard room, as accessory to the
hospital.
As before stated, however, different parties attempted to
possess themselves of portions of the property, and amongst others,
White, under whom the appellant claims, made such an attempt in
1849 in reference to the whole block which includes the lots in
question, but was ejected, as appears by the orders and
correspondence set out in the complaint.
The consequence of White's attempt was that adverse claims to
the property under him were afterwards preferred from time to time.
For the purpose of quieting these claims, when the hospital was
being erected, a conveyance to the government was procured from the
city authorities. On the 10th of December, 1852, the common council
of the city passed a resolution that the mayor be directed to
convey to the United States all its right, title, and interest to
six fifty-vara lots, bounded on the east by Spear Street, on the
south by Harrison Street, on the west by Front Street, and on the
north by the beach; which description includes the four lots above
referred to. Such a conveyance was accordingly made by the mayor by
deed dated the 11th of December, 1852, and from thenceforward the
United States claimed the property in question, as well by virtue
of the said deed as by right of original appropriation for public
uses.
The appellant, as before stated, claims the property by virtue
of the Van Ness Ordinance, passed June 20, 1855, by which, amongst
other things, the City of San Francisco did relinquish and grant
all the right and claim of the city to the lands within the
corporate limits to the parties in the actual possession thereof,
by themselves or tenants, on or before the first day of January,
1855, provided such possession was continued up to the time of the
introduction of the ordinance in the common council.
Now it is too evident to require discussion that the City of San
Francisco could not, in 1855, make a valid grant of property which
it had already granted in 1852, and which the grantee (in this case
the United States) constantly claimed as
Page 98 U. S. 436
part and parcel of premises which were in its undoubted
possession. The weight of the evidence in the case is that the
government was in actual possession of lots 3 and 4 as appendant to
the hospital from 1852 to the passage of the ordinance. This would
bring it within the terms of the ordinance itself. But we do not
deem this material. It had a clear title from the city before, even
if the action of the military authorities in 1847 and 1849 was not
sufficient to effect an appropriation for public uses.
But the appellant relies on certain judgments rendered in the
state courts in actions brought against the agents of the
government having possession of the lands in question, which
judgments he contends estop the government from claiming any title
therein.
The first of these actions was an action for forcible entry and
detainer brought in a justice's court in December, 1857, by one
Edward Barry against one McDuffie and one Palmer, for ejecting him
(Barry) from lot No. 4, which lies on Main Street. The defendants
justified under an order of President Pierce, requiring the Marshal
of the District of California to remove all persons trespassing on
said lot. The county court, to which the cause was appealed, found
for the plaintiff and reinstated him in the possession. The only
question made in the case was whether the justification was
sufficient for ousting a person who was in peaceable possession.
This judgment would not have been decisive upon the title even if
the defendants themselves had been the true owners of the land and
had claimed to eject the plaintiff by virtue of said ownership.
The next action was an ejectment brought in the state district
court in February, 1865, by one Wakeman and others (under whom the
appellant claims title) against one Hastings and others to recover
possession of the same lot No. 4. The defendants, besides the
general issue, pleaded that the premises were the freehold of the
United States and that they, as its officers and employees, and by
its authority, entered, &c. The question of title was gone into
and decided against the defendants. A similar action of ejectment
was brought in the same court in April, 1865, by one Volney Cushing
(under whom the
Page 98 U. S. 437
appellant also claims) against the said Hastings and others to
recover possession of the lot numbered 3, situated on Spear Street.
The defendants pleaded the general issue and the statute of
limitations. The title was also contested in this case, and the
judgment was for the plaintiff.
It is proved that the person who was District Attorney of the
United States for the District of California at the time when said
actions were brought and tried appeared as attorney for the
defendants therein, and that Nathaniel Bennett, Esq., attended the
trial of one of said causes as counsel for the defendants, being
employed and paid by the Secretary of the Treasury of the United
States, and, not being able to attend the trial of the other cause,
he procured another person to attend in his place.
The appellant contends that this was sufficient to make the
United States a virtual party to said actions and to conclude them
by the judgment therein; that by the law of California, a judgment
in ejectment is an estoppel, and that where a tenant or other
person in privity with the landlord is sued and notifies the
landlord to defend, the landlord is bound by the judgment
pronounced in the action, and to this point the counsel of the
appellant cited
Douglas v. Fulda, 45 Cal. 592;
Russell
v. Mallon, 38
id. 259; and
Valentine v.
Mahoney, 37
id. 389, as well as various cases decided
in other states.
Whilst we concede that this may be the law of California as it
regards private citizens who are landlords, we are not satisfied
that the same law can be applied to the government of the United
States. We consider it to be a fundamental principle that the
government cannot be sued except by its own consent, and certainly
no state can pass a law which would have any validity for making
the government suable in its courts. It is conceded in
The Siren, 7
Wall. 152, and in
The Davis, 10
Wall. 15, that without an act of Congress, no direct proceeding can
be instituted against the government or its property. And in the
latter case it is justly observed that
"the possession of the government can only exist through its
officers; using that phrase in the sense of any person charged on
behalf of the government with the control of the property, coupled
with actual possession."
If a proceeding would lie against the officers as
Page 98 U. S. 438
individuals in the case of a marine hospital, it might be
instituted with equal facility and right in reference to a post
office or a custom house, a prison or a fortification.
In some cases (perhaps it was so in the present case), it might
not be apparent until after suit brought that the possession
attempted to be assailed was that of the government; but when this
is made apparent by the pleadings or the proofs, the jurisdiction
of the court ought to cease. Otherwise the government could always
be compelled to come into court and litigate with private parties
in defense of its property.
It may be contended that the United States consented to have its
title determined in these cases, and that such consent was
manifested by the employment of the district attorney and
additional counsel to aid in the defense. But we do not think that
any such inference can be legally deduced from the action of the
Secretary of the Treasury. He may have deemed it prudent to assist
the officers who were sued without intending to waive any of the
rights of the government. And in fact he had no authority to waive
those rights. In England it is usual in the admiralty courts, in
proceedings
in rem, when it is made to appear that
property of the government ought, in justice, to contribute to a
general average, or to salvage, for the proper officer of the
government to consent in court that it may take jurisdiction of the
matter. As stated by this court in
The Davis, supra,
"this consent is given by authority of the King, who thus
submits to be sued in his own courts. The liberal exercise of this
authority [there] removes the difficulty presented here, where no
power to do this exists in any officer of the government, and
prevents any apprehension of gross injustice in such cases in
England."
The cases like
The Siren and
The Davis,
already referred to, and many others therein cited, in which the
proceeds of government property, incidentally brought into the
admiralty, have been subjected to the liens of claimants against
the same stand upon the principle that when the government itself
seeks its rights at the hands of the court, equity requires that
the rights of other parties interested in the subject matter should
be protected.
The Siren was brought into the port of
Boston as prize, was libeled, condemned, and sold, and the proceeds
paid
Page 98 U. S. 439
into court. In distributing these proceeds amongst those who had
claims against the vessel, an allowance was awarded for damages to
the owner of another vessel which had been sunk by collision with
the
Siren during her voyage subsequent to the capture. It
was held that inasmuch as the United States had resorted to the aid
of the court to procure the condemnation of the
Siren, and
had thus placed her proceeds in the course of judicial
administration, any proper claims against the vessel itself, prior
to that of the government, might well be satisfied out of such
proceeds. At the same time it was conceded that neither the
government nor its property can be subjected to direct legal
proceedings without its consent, and that whosoever would institute
such proceedings must bring his case within the authority of some
act of Congress. 7 Wall.
74 U. S. 154.
The
Davis and her cargo were seized for salvage services.
Part of the cargo was cotton belonging to the United States but not
in its actual possession, it being in the possession of the master
of the ship under a contract of affreightment. The government
appeared as claimant, and it was held that the cotton, like other
cargo, was justly liable to pay its proportion of the salvage
services, the Court, at the same time, as before stated, holding
that even for salvage services the property of the government could
not be taken out of its own possession by any direct
proceeding.
Without discussing the matter further, we are clearly of opinion
that the judgments in the cases relied on by the appellant
constitute no estoppel against the United States. And being of
opinion that the title of the United States to the premises in
question is undoubted, our conclusion is that the decree of the
circuit court must be affirmed; and it is
So ordered.