This Court takes judicial notice of facts concerning the pueblo
of San Francisco not contradictory of the findings of the referee
in this case, which are recited in former decisions of this Court,
in statutes of the United States and of the California, and in the
records of the Department of the Interior.
It is settled law that a patent for public land is void at law
if the grantor state had no title to the premises embraced in it or
if the officer who issued it had no authority to do so, and that
the want of such title or authority can be shown in an action at
law.
Thee power to make and correct surveys of the public lands
belongs exclusively
Page 142 U. S. 162
to the political department of the government, and the action of
that department is unassailable in the courts except by a direct
proceeding.
In matters relating to the sale and disposition of the public
domain, the surveying of private land claims and the issuing of
patents thereon, and the administration of the trusts devolving on
the government by reason of the laws of Congress or under treaty
stipulations respecting the public domain, the Secretary of the
Interior is the supervising agent of the government, to do justice
to all claimants, and preserve the rights of the people of the
United States.
The Secretary of the Interior had ample power to set aside the
Stratton survey of the San Francisco pueblo lands, although
approved by the Surveyor General of California and confirmed by the
Commissioner of the General Land Office, with no appeal taken, and
to order a new survey, and his action in that respect is
unassailable in a collateral proceeding.
The method of running the shoreline of the Bay of San Francisco
in the Von Leicht survey was correct.
The well settled doctrine that on the acquisition of the
territory from Mexico, the United States acquired the title to
lands under tidewater in trust for the future states that might be
erected out of the territory does not apply to lands that had been'
previously granted to other parties by the former government or had
been subjected to trusts that would require their disposition in
some other way.
The patent of the United States is evidence of the title of the
City of San Francisco under Mexican laws to the pueblo lands, and
is conclusive not only as against the United States and all parties
claiming under it by titles subsequently acquired, but also as
against all parties except those who have a full and complete title
acquired from Mexico anterior in date to that confirmed by the
decree of confirmation.
The Court stated the case as follows:
This was an action of ejectment, brought in the Superior Court
in and for the City and County of San Francisco, California, by the
United Land Association, a corporation of that state, and one
Clinton C. Tripp, against Thomas Knight, to recover a block of land
in that city bounded by Barry, Channel, Seventh, and Eighth
Streets, and known as "Block No. 40." The controversy involves an
interesting question of title to the property described, the
plaintiffs asserting that the premises were below the line of
ordinary high water mark at the date of the conquest of California
from Mexico, and therefore upon the admission of the stated into
the union in 1850, inured to it in virtue of its sovereignty over
tidelands, and
Page 142 U. S. 163
the defendant insisting that the lands are a portion of the
pueblo of San Francisco as confirmed and patented by the United
States.
The complaint, filed on the 23d of November, 1880, alleged that
the plaintiffs were the owners in fee of the premises described and
were entitled to the possession thereof, and that they had been
wrongfully dispossessed thereof by the defendant, who continued to
hold such unlawful possession, to their damage in the sum of $100,
and to their loss of the rents and profits thereof in the sum of
$500. Wherefore they prayed a judgment of restitution and damages
aforesaid.
The answer consisted of a general denial of all the allegations
of the complaint, and the cause, being at issue, was, by
stipulation of counsel referred to a referee to take testimony,
"try all the issues, and report his findings and judgment
thereon."
In obedience to the order of the court, the referee tried the
case, making an elaborate finding of facts, and concluding, as
matter of law, that judgment should go for the plaintiffs.
Accordingly, on the second of June, 1888, a judgment was entered in
the superior court in favor of the plaintiffs. That judgment was
afterwards affirmed by the supreme court of the state on appeal,
and after two separate rehearings, and judgment of affirmance was
adhered to by a bare majority of the court, three of the judges
dissenting. 85 Cal. 474, 448. This writ of error was then sued
out.
It appears from the bill of exceptions that on the trial of the
case before the referee, the plaintiffs, to sustain the issues on
their behalf, introduced evidence tending to show the location of
the premises to be as alleged in the complaint, and also a complete
and good title in themselves under a grant from the state and
certain mesne conveyances, provided the title to the premises was
originally in the state and provided certain deeds (which were also
introduced) from the state Tideland Commissioners, dated,
respectively, November 24 and 27, 1875, were effectual to convey
said title. For the purpose of proving title in the state, they
offered parol testimony to show that in 1854, the premises were
below the line of ordinary
Page 142 U. S. 164
high water mark, and that Mission Creek (which is an estuary of
the Bay of San Francisco, and runs alongside this block) was at
that time, navigable for a considerable distance above them. This
evidence was objected to on the ground that parol evidence was
inadmissible to prove the boundary lines of the decree of
confirmation of the pueblo lands; but the objection was overruled
and an exception noted.
The plaintiffs then offered in evidence certain documents
relative to the confirmation to the City of San Francisco of its
pueblo lands and also the first survey of those lands under the
decree of confirmation, which survey, made by Deputy-Surveyor
Stratton, approved by the survey or general of California, and
confirmed by the Commissioner of the General Land Office, did not
include the premises in controversy. They also produced a witness
who testified that the premises were below ordinary high water mark
as laid down on such survey. To the introduction of this survey as
evidence, and to the parol proof of the location of the premises
with reference to the line of high tide as delineated thereon, the
defendant objected on the ground that the survey was not matter of
record; that it did not tend to prove, as between the parties
hereto, where the line of high tide was, being
res inter alios
acta, and that it had been cancelled and superseded by another
survey subsequently made in accordance with instructions of the
Secretary of the Interior. The objection was overruled, the survey
was admitted in evidence, and the defendant duly excepted.
The plaintiffs also produced in evidence certain maps made by
persons in official station in 1853, 1857, 1859, and 1864, showing
the line of high tide at about the same line as on the aforesaid
Stratton survey. Objections were made to these maps as evidence,
but they were overruled and exceptions were noted.
The plaintiffs also introduced in evidence the original minute
book of the board of supervisors of the City and County of San
Francisco and read a resolution passed by the board on the 23d of
December, 1878, that no appeal should be taken from the action of
the Commissioner of the General Land Office
Page 142 U. S. 165
approving the Stratton survey. Objection was made to this
evidence, but it was overruled and an exception was noted.
The plaintiffs then offered in evidence the deeds from the state
land Commissioners to one Ellis, from whom they derived their
title, together with the letter of the Attorney General of the
state advising the board to dispose of all the tidelands not in
litigation, and where they could ascertain to whom the state title
ought to go, in pursuance of the tideland acts. The deeds embrace
the property in dispute. The defendant objected to these deeds on
the ground that they were incompetent, in that the Board of
Tideland Commissioners had no power or jurisdiction to make them
and on the further ground that there was nothing to show that the
board was advised by the Attorney General to make such deeds. The
objection was overruled and an exception was noted. The plaintiffs
thereupon rested their case.
The defendant, to sustain the issues on his part, offered in
evidence the patent of the San Francisco pueblo lands, regularly
issued to that city on the 29th of June 1884, and also the plat of
said pueblo lands surveyed under instructions from the United
States Surveyor General by Deputy Surveyor Von Leicht in December,
1883, which showed an endorsement of approval by the Commissioner
of the General Land Office, under date of May 15, 1884, and was
also endorsed as follows:
"The field notes of the survey of the pueblo lands of San
Francisco, from which this plat has been made, are strictly in
accordance with the instructions of the honorable Commissioner of
the General Land Office received with his letter, dated November
25, 1883, as the same appear of record and on file in this office.
United States Surveyor General's office, San Francisco, California,
January 17, 1884. W. H. BROWN, United States Surveyor General for
California."
It was admitted that the land in question is included within the
exterior boundaries of the patent; but the patent was objected to
as incompetent to show title in the City of San Francisco as
against grantees of the state of the premises for the following
reasons:
"1st. The State of California acquired her title by virtue
of
Page 142 U. S. 166
her sovereignty on her admission into the union, and her title
could not be overthrown by declarations of the United States made
after title had vested in her."
"2d. That as to lands acquired by virtue of her sovereignty, the
state was not the owner of a private land claim, and was not bound
to present her claims to the Board of Land Commissioners, organized
under the act of Congress entitled 'An act to ascertain and settle
the private land claims in the State of California, passed March 3,
1851,' nor is she concluded as to her rights by not presenting them
as provided in section 13 thereof, nor by any decision on the claim
of another person. The act did not apply to her or her
property."
"3d. The only authority for the patent was a decree of the
United States circuit court, which court was not vested with
jurisdiction over the state or the property of the state, although
it was vested with jurisdiction over natural persons and
corporations. Neither the decree nor any proceedings under the
decree could affect the title of the state or furnish evidence
against her."
"4th. The state was not a party to the record in the case of
The City &c. v. The United States, nor is she affected
as a natural person or corporation would be by a failure to attend
before the United States Surveyor General and object to a survey,
as provided in section 1 of the Act of Congress approved July 1,
1864, and entitled 'An act to expedite the settlement of titles to
lands in the State of California.' But, being a stranger to the
entire record and proceeding, the patent is not competent evidence
against her or her property."
"5th. The first survey is the final adjudication of the land
office of the location of the premises described in the decree,
because:"
"(a) In confirming a survey under the Acts of March 3, 1851, and
July 1, 1864, the Commissioner acts in a special judicial capacity,
and his decisions are not appealable to the Secretary of the
Interior."
"(b) The city refused to appeal, and this refusal appears in the
record, and there was no appeal."
"(c) The first confirmed survey is better evidence of the
Page 142 U. S. 167
location in this case than the patent, and the patent is void to
the extent that it departs from it."
"(d) The decree confirms to the city only the land above or
within the ordinary high water mark at the date of the
conquest."
"The premises are outside that specific boundary, and, as the
Surveyor General had no authority under the acts of Congress to
survey, nor the land-office to patent, land not confirmed to the
claimant, the decree controls, and the patent is void to the extent
that it departs from the specific boundary given in the
decree."
The evidence was admitted, but the referee refused to find
thereon in favor of the defendant, and an exception was noted.
The defendant also introduced in evidence the judgment roll in a
case tried in a state court between this defendant and the City and
County of San Francisco, in which a judgment was rendered in his
favor in November, 1868, quieting his title to the premises.
That was all the evidence introduced, and upon it the referee
found the material facts of the case substantially as follows: the
premises in dispute are below ordinary high water mark as the same
existed on the 7th of July, 1846, the date of the conquest of
Mexico, and are below and outside of a survey of the pueblo claim
made by Deputy Surveyor Stratton, and approved by the Surveyor
General of California on the 13th of August, 1868, and confirmed by
the Commissioner of the General Land Office, November 11, 1878, but
are within a subsequent survey of the pueblo, made by Deputy
Surveyor Von Leicht in 1884, which was not approved by the Surveyor
General of California, but was certified by him to have been made
in accordance with orders from the Secretary of the Interior. The
patent for the pueblo lands was issued on this second survey, and
recited, among other things, the proceedings had in relation to the
perfecting of the pueblo title, including the decree of
confirmation and the confirmatory acts of Congress. The plaintiffs
derived their title from the state through certain mesne
conveyances, regular and legal in all
Page 142 U. S. 168
respects, while the defendant did not connect himself with the
title of the state.
Upon the foregoing facts, the referee found as conclusions of
law that:
(1) The State of California, upon her admission into the union
September 9, 1850, became seised in fee of the premises in
dispute.
(2) This title subsequently became vested in the plaintiffs by
virtue of certain conveyances described.
(3) This title of the plaintiffs was subject to defeat by the
decree of the circuit court confirming the claim of the pueblo, but
the premises, being without the confirmed survey of 1878, and
outside of the specific boundary given in the decree, remained the
property of the state.
(4) "The second [Von Leicht] survey was illegal, because it was
not approved by the Surveyor General of California, no appeal was
taken to the Secretary of the Interior from the decision of the
Commissioner of the General Land Office approving the prior survey,
and because the second survey was not retained in the office of the
United States Surveyor General for ninety days, and no notice of
the same was given to enable parties in interest to file protests,
as required by law, and because in approving said prior survey said
Commissioner of the General Land Office was acting in a judicial
capacity, and his judgment thereon is not reversible, and was not
legally reversed;" and,
(5) The description of the premises contained in the patent
being in excess of the premises described in the prior survey and
in the decree, the patent, to the extent that it covered land of
the state not confirmed to the claimant, was invalid, and did not
operate to convey the state's title to the premises in
controversy.
The judgment of the supreme court of the state was based upon
substantially the same grounds as that of the referee, and the
correctness of the propositions of law involved therein is drawn in
question by this writ of error.
To understand precisely the exact nature of the questions
involved in this case, a somewhat more detailed statement of
Page 142 U. S. 169
facts than is contained in the above findings of the referee
will be found useful. These facts are not contradictory of those
findings, and are recited in former decisions of this Court,
statutes of the United States and of the State of California, and
the records of the Interior Department, of all of which the court
can take judicial notice.
The pueblo of San Francisco has been a fruitful subject of
litigation for many years, both in the Land Department of the
government and in the state and federal courts. For the purposes of
this case, a brief history only of the litigation is deemed
essential.
The City of San Francisco, as the successor of a Mexican pueblo
of that name, presented its claim to the Board of Land
Commissioners created by the Act of Congress approved March 3,
1851, for the confirmation to it of a tract of land to the extent
of four square leagues, situated on the upper portion of the
peninsula of San Francisco. In December, 1854, the board confirmed
the claim for only a portion of the four square leagues, and both
the city and the United States appealed to the district court of
the United States. The United States subsequently withdrew its
appeal, but the case remained in the district court undisposed of
until September, 1864, when, under the provisions of the Act of
Congress of July 1, 1864, it was transferred to the United States
circuit court, which sustained the contention of the city and
entered a confirmatory decree in its favor on the 18th of May,
1865. 4 Sawyer 553, 577. The language of that decree is as
follows:
"The land of which confirmation is made is a tract situated
within the County of San Francisco, and embracing so much of the
extreme upper portion of the peninsula above ordinary high water
mark (as the same existed at the date of the conquest of the
country, namely, the 7th of July, A.D. 1846) on which the City of
San Francisco is situated as will contain an area of four square
leagues; said tract being bounded on the north and east by the Bay
of San Francisco, on the west by the Pacific Ocean, and on the
south by a due east and west line drawn so as to include the area
aforesaid,"
subject to certain exceptions and deductions not necessary to be
stated
Page 142 U. S. 170
Both the United States and the city appealed from that decree,
the United States from the whole decree and the city from so much
of it as included the aforesaid deductions and exceptions in the
estimate of the quantity of land confirmed. While these appeals
were pending, Congress passed the Act of March 8, 1866, "to quiet
the title to certain lands within the corporate limits of the City
of San Francisco." This act is as follows:
"
Be it enacted, etc., that all the right and title of
the United States to the land situated within the corporate limits
of the City of San Francisco, in the State of California, confirmed
to the City of San Francisco by the decree of the Circuit Court of
the United States for the Northern District of California, entered
on the eighteenth day of May, one thousand eight hundred and
sixty-five, be, and the same are hereby, relinquished and granted
to the said City of San Francisco and its successors, and the claim
of the said city to said land is hereby confirmed, subject,
however, to the reservations and exceptions designated in said
decree, and upon the following trusts, namely, that all the said
land not heretofore granted to said city shall be disposed of and
conveyed by said city to parties in the
bona fide actual
possession thereof, by themselves or tenants, on the passage of
this act, in such quantities and upon such terms and conditions as
the legislature of the State of California may prescribe, except
such parcels thereof may be reserved and set apart by ordinance of
said city for public uses,
provided, however, that the
relinquishment and grant by this act shall not interfere with or
prejudice any valid adverse right or claim, if such exist, to said
land or any part thereof, whether derived from Spain, Mexico, or
the United States, or preclude a judicial examination and
adjustment thereof."
14 St. 4, c. 13.
The appeals to this Court were thereupon dismissed. The measure
of the city's title to the four square leagues of land is to be
found in the decree of confirmation and the act of Congress just
recited. The question of the city's title having been settled, it
became necessary to fix the boundaries of its lands by a survey.
This duty under the law, devolved upon the
Page 142 U. S. 171
political department of the general government having charge of
the public lands. Accordingly, in 1867 and 1868, under instructions
of Surveyor General Upson, Deputy Surveyor Stratton made a survey
of the confirmed claim, and the same was approved by the Surveyor
General, and subsequently, after lying in the General Land Office
at Washington for about ten years, it was confirmed by the
Commissioner on the eleventh of November, 1878. 2 C.L.L. 1234. In
making this survey, Stratton ran its lines along the line of
ordinary high water mark of the Bay of San Francisco until he came
to Mission Creek, a small stream or estuary of the bay, and then
followed the tideline up the creek and, crossing over, ran down on
the other side. This plan seems also to have been followed with
reference to a few other small estuaries. The city protested
against this method of survey, and, through her attorney of record,
gave notice of appeal from the action of the Commissioner of the
General Land Office to the Secretary of the Interior, claiming that
the proper method of running the line along the bay was to follow
the tideline of the main body of water and cut across the mouths of
all estuaries or creeks which are arms of the bay. The board of
supervisors of the city, however, decided not to appeal from the
decision of the Commissioner of the General Land Office confirming
the Stratton survey, and, declaring that the action of the attorney
was unauthorized, discharged him. Thereafter the board passed a
resolution, addressed to the Secretary of the Interior, in which it
was stated that, in its opinion, the Stratton survey was entirely
correct and legal, and should be approved.
Notwithstanding this action of the board, the Secretary of the
Interior sent for the papers in the case, and, upon an elaborate
examination of the points involved, reversed the action of the
Commissioner of the General Land Office approving the Stratton
survey, thus substantially sustaining the original protest of the
city to the running of the boundary line of the grant up the
estuaries of the bay.
Upon motion for review, a subsequent Secretary of the Interior
sustained the action of his predecessor, and ordered a survey made
in conformity with the views of the department.
Page 142 U. S. 172
2 L.D. 346. It was under those instructions that the Von Leicht
survey was made, upon which the patent was issued. Subsequently an
application was made to a succeeding Secretary to have the patent
recalled and cancelled and a new patent issued, but it was denied,
the Secretary holding that he had no power under the law to grant
the application, and that, even if the had, he should decline to
exercise it, because he considered the views of his predecessors
sound and correct. 5 L.D. 483.
Page 142 U. S. 176
MR. JUSTICE LAMAR delivered the opinion of the Court.
The case, as presented by this record, involves some very
interesting questions. Ever since the decision in
Polk's
Lessee v. Wendal, 9 Cranch 87, it has been the
settled law of this Court that a patent is void at law if the
grantor state had no title to the premises embraced in it, or if
the officer who issued the patent had no authority so to do, and
that the want of such title or authority can be shown in an action
at law.
Patterson v.
Winn, 11 Wheat. 380,
24 U. S. 384;
Stoddard v.
Chambers, 2 How. 284,
43 U. S. 318;
Easton v.
Salisbury, 21 How. 426;
Reichart
v. Felps, 6 Wall. 160;
Best v.
Polk, 18 Wall. 112;
Smelting Co. v. Kemp,
104 U. S. 636;
Steel v. Smelting Co., 106 U. S. 447,
106 U. S. 453;
Wright v. Roseberry, 121 U. S. 488,
121 U. S. 519;
Doolan v. Carr, 125 U. S. 618,
125 U. S. 625,
and authorities there cited.
It is sought by the plaintiffs to bring this case within that
rule, and it is therefore strenuously insisted that the patent for
the San Francisco pueblo is void to the extent that it embraces
lands below ordinary high water mark of Mission Creek as that line
existed at the date of the conquest from Mexico in 1846. In order
to sustain this proposition, the claim is put forth that the
Stratton survey was correct, and was never legally set aside; that
the Von Leicht survey, upon which the patent was issued, was wholly
unauthorized in law and void, and that the premises in dispute,
being excluded by the Stratton survey, and being proved by parol
evidence to have been below the line of ordinary high water mark,
were never legally included in the patent, and were not included in
the decree of confirmation.
It is a well settled rule of law that the power to make and
correct surveys of the public lands belongs exclusively to the
political department of the government, and that the action of that
department, within the scope of its authority, is unassailable in
the courts except by a direct proceeding.
Cragin v.
Powell, 128 U. S. 691,
128 U. S. 699,
and cases cited. Under this rule, it must be held that the action
of the Land Department in determining that the Von Leicht survey
correctly delineated
Page 142 U. S. 177
the boundaries of the pueblo grant, as established by the
confirmatory decree, is binding in this Court if the department had
jurisdiction and power to order that survey. It is claimed,
however, and the referee so determined, that no such power or
authority existed in the department, because it had been exhausted
by the action of the Commissioner of the General Land Office in
approving and confirming the Stratton survey in 1878. This
contention is based upon the proposition that the Secretary of the
Interior had no authority to set aside the order of the
Commissioner approving and confirming the Stratton survey,
especially in view of the fact that no appeal was taken from such
order, and the authorities of the city acquiesced in that survey.
This proposition is unsound. If followed as a rule of law, the
Secretary of the Interior is shorn of that supervisory power over
the public lands which is vested in him by section 441 of the
Revised Statutes. That section provides as follows:
"The Secretary of the Interior is charged with the supervision
of public business relating to the following subjects: . . .
Second. The public lands, including mines."
Section 453 provides:
"The Commissioner of the General Land Office shall perform,
under the direction of the Secretary of the Interior, all
executive duties appertaining to the surveying and sale of the
public lands of the United States or in any wise respecting such
public lands, and also such as relate to private claims of land,
and the issuing of patents for all [
agents] [grants] of
land under the authority of the government."
Section 2478 provides:
"The Commissioner of the General Land Office,
under the
direction of the Secretary of the Interior, is authorized to
enforce and carry into execution, by appropriate regulations, every
part of the provisions of this title [The Public Lands] not
otherwise specially provided for."
The phrase "under the direction of the Secretary of the
Interior," as used in these sections of the statutes, is not
meaningless, but was intended as an expression in general terms of
the power of the Secretary to supervise and control the extensive
operations of the Land Department, of which he is the head. It
means that in the important matters relating to the sale and
disposition of the public domain, the surveying of
Page 142 U. S. 178
private land claims and the issuing of patents thereon, and the
administration of the trusts devolving upon the government, by
reason of the laws of Congress or under treaty stipulations
respecting the public domain, the Secretary of the Interior is the
supervising agent of the government to do justice to all claimants
and preserve the rights of the people of the United States. As was
said by the Secretary of the Interior on the application for the
recall and cancellation of the patent in this pueblo case, 5 L.D.
494:
"The statutes, in placing the whole business of the department
under the supervision of the Secretary, invest him with authority
to review, reverse, amend, annul, or affirm all proceedings in the
department having for their ultimate object to secure the
alienation of any portion of the public lands, or the adjustment of
private claims to lands, with a just regard to the rights of the
public and of private parties. Such supervision may be exercised by
direct orders or by review on appeals. The mode in which the
supervision shall be exercised in the absence of statutory
direction may be prescribed by such rules and regulations as the
Secretary may adopt. When proceedings affecting titles to lands are
before the department, the power of supervision may be exercised by
the Secretary whether these proceedings are called to his attention
by formal notice or by appeal. It is sufficient that they are
brought to his notice. The rules prescribed are designed to
facilitate the department in the dispatch of business, not to
defeat the supervision of the Secretary. For example, if, when a
patent is about to issue, the Secretary should discover a fatal
defect in the proceedings, or that by reason of some newly
ascertained fact the patent, if issued, would have to be annulled,
and that it would be his duty to ask the Attorney General to
institute proceedings for its annulment, it would hardly be
seriously contended that the Secretary might not interfere and
prevent the execution of the patent. He could not be obliged to sit
quietly and allow a proceeding to be consummated which it would be
immediately his duty to ask the Attorney General to take measures
to annul. It would not be a sufficient answer against the exercise
of his power that no appeal had been taken to him, and therefore he
was without authority in the matter. "
Page 142 U. S. 179
There is authority in this Court for this holding.
Magwire v.
Tyler, 1 Black 195, was a case involving the right
of the Commissioner of the General Land Office, under the Act of
July 4, 1836, 5 Stat. 107, c. 352, reorganizing that bureau, and of
the Secretary of the Interior, under the Act of March 3, 1849, 9
Stat. 395, establishing that department, to take jurisdiction of
surveys made in the upper Louisiana country upon confirmed Spanish
titles. One of the questions presented was whether the Secretary of
the Interior could reject such a survey and order a new one of the
same claim, and issue a patent upon the second survey. By the Act
of March 3, 1807, the board of Commissioners appointed to pass upon
the merits of such claims was required to deliver to each party
whose claim was confirmed a certificate that he was entitled to a
patent for the tract of land designated. This certificate was to be
presented to the Surveyor General, who proceeded to have the survey
made and returned, with the certificate, to the recorder of land
titles, whose duty it was to issue a patent certificate, which,
being transmitted to the Secretary of the Treasury (then the head
of the Land Department), entitled the party to a patent. By the Act
of April 25, 1812, the duty of the Secretary of the Treasury was
transferred to the Commissioner of the General Land Office. The Act
of April 18, 1814, required that accurate surveys should be made
according to the description in the certificate of confirmation,
and proper returns should be made to the Commissioner of the
certificate and survey, and all such other evidence as the
Commissioner might require. The Court said:
"These acts show that the surveys and proceedings must be, in
regard to their correctness, within the jurisdiction of the
Commissioner, and such has been the practice. Of necessity, he must
have power to adjudge the question of accuracy preliminary to the
issue of a patent."
After referring to the Act of July 4, 1836, which conferred
plenary powers on the Commissioner to supervise all surveys of
public lands, "and also such as relate to private claims of land
and the issuing of patents," and also to the Act of March 3, 1849,
the third section of which vested the Secretary of the
Page 142 U. S. 180
Interior, in matters relating to the General Land Office,
including the power of supervision and appeal, with the same powers
that were formerly discharged by the Secretary of the Treasury, the
Court said:
"The jurisdiction to revise on the appeal was necessarily
coextensive with the powers to adjudge by the Commissioner. We are
therefore of the opinion that the Secretary had authority to set
aside Brown's survey of Labeaume's tract, order another to be made,
and to issue a patent to Labeaume throwing off Brazeau's
claim."
1 Black
66 U. S. 202.
See also 8 Wall.
75 U. S.
661.
A similar question arose in
Snyder v. Sickles,
98 U. S. 203,
98 U. S. 211,
and was decided in the same way, the Court going into an elaborate
examination of the powers of the Secretary of the Interior to
review the action of the Commissioner of the General Land Office,
and reaffirming the doctrines of
Magwire v. Tyler.
In
Buena Vista County v. Iowa Falls & Sioux City
Railroad, 112 U. S. 165,
112 U. S. 175,
a question arose whether the decision of the Commissioner of the
General Land Office under the Act of March 5, 1872, 17 Stat. 37,
was intended to be final, from which no appeal would lie to the
Secretary of the Interior. That act provides
"that the Commissioner of the General Land Officer is hereby
authorized and required to receive and examine the selections of
swamp lands in Lucas, O'Brien, Dickinson, and such other counties
in the State of Iowa as formerly presented their selections to the
Surveyor General of the district including that state, and allow or
disallow said selections and indemnity provided for according to
the acts of Congress in force touching the same at the time such
selections were made, without prejudice to legal entries and rights
of
bona fide settlers under the homestead or preemption
laws of the United States at the date of this act."
It is to be observed that there was nothing in that act
expressly giving an appeal from the Commissioner's decision to the
Secretary. But the Court said:
"There is nothing in the act which alters the relation between
the two officers as otherwise established or puts the decisions of
the Commissioner under that act upon a footing different from his
other decisions. "
Page 142 U. S. 181
The powers and duties of the Secretary of the Interior were no
greater under the acts under consideration in the cases to which we
have referred than they are under sections 441, 453, and 2478 of
the Revised Statutes. They were practically, and to all intents and
purposes, the same. The general words of those sections are not
supposed to particularize every minute duty devolving upon the
Secretary, and every special power bestowed upon him. There must be
some latitude for construction. In the language of this Court in
the late case of
Williams v. United States, 138 U.
S. 514,
138 U. S.
524:
"It is obvious -- it is common knowledge -- that in the
administration of such large and varied interests as are entrusted
to the Land Department, matters not foreseen, equities not
anticipated, and which are therefore not provided for by express
statute, may sometimes arise, and therefore that the Secretary of
the Interior is given that superintending and supervising power
which will enable him, in the face of these unexpected
contingencies, to do justice."
See also Lee v. Johnson, 116 U. S.
48.
It makes no difference whether the appeal is in regular form
according to the established rules of the department, or whether
the Secretary on his own motion, knowing that injustice is about to
be done by some action of the Commissioner, takes up the case and
disposes of it in accordance with law and justice. The Secretary is
the guardian of the people of United States over the public lands.
The obligations of his oath of office oblige him to see that the
law is carried out, and that none of the public domain is wasted or
is disposed of to a party not entitled to it. He represents the
government, which is a party in interest in every case involving
the surveying and disposal of the public lands.
Furthermore, the power of supervision and control exercised by
the Secretary of the Interior over all matters relating to the
disposition and sale of the public lands, under § 453, Rev.Stat.,
is substantially the same as his power over the bureau of pensions,
under § 471. That section provides:
"The Commissioner of pensions shall perform,
under the
direction of the Secretary of the Interior, such duties in the
execution of the
Page 142 U. S. 182
various pension and bounty laws as may be prescribed by the
President."
There is nowhere any express power given to the Secretary of the
Interior to hear and determine appeals from the Commissioner of
Pensions, and yet the power is exercised daily without question.
And such power was expressly asserted in
United States v.
Black, 128 U. S. 40, and
impliedly recognized in
United States v. Raum,
135 U. S. 200.
The same remarks apply to the powers of the Secretary of the
Interior, under a similarly worded section of the Revised Statutes
(§ 463), to supervise and control the management of the Bureau of
Indian affairs, which powers, so far as we are advised, have never
been questioned.
But even if there was any doubt of the existence of such power
in the Secretary of the Interior as an original proposition, still
the exercise of it for so long a period, going back to the
organization of that department, without question ought to be
considered as conclusive as to the existence of the power.
Hastings & Dakota Railroad v. Whitney, 132 U.
S. 357, and authorities there cited.
We conclude on this branch of the case that the Secretary of the
Interior had ample power to set aside the Stratton survey and order
a new survey by Von Leicht, and that his action in such matter is
unassailable in the courts in a collateral proceeding. The Von
Leicht survey therefore must be held as a correct survey of the
pueblo claim as confirmed by the circuit court. Moreover, the
method of running the shoreline of the Bay of San Francisco adopted
by the Von Leicht survey was approved by the circuit court itself
in
Tripp v. Spring, 5 Sawyer 209, and on this point we
entertain no doubt.
The only remaining question in the case, as we understand it and
as we desire to consider it, may be thus stated: admitting that the
Von Leicht survey is correct, and follows the decree of
confirmation; admitting also that the patent followed the survey
and the decree, and that the premises in dispute are embraced in
the patent, was parol evidence admissible to show that these
premises were below the ordinary
Page 142 U. S. 183
high water mark not of the Bay of San Francisco, but of Mission
Creek, a navigable arm of the bay, as that line existed at the date
of the conquest from Mexico in 1846? The contention on this branch
of the case is that if all these admissions be taken as true, yet
the land in dispute never was a portion of the pueblo of San
Francisco, because at the date of the conquest, it was below the
ordinary high water mark of Mission Creek, and therefore, upon the
admission of California into the union in 1850, passed to the state
in virtue of its sovereignty over tidelands.
To this contention we cannot give our assent, and in the view
which we take of the question, we think there was error in
admitting evidence to show that the land was below high water mark
of the creek, and that the supreme court erred in sustaining this
ruling. For this and other reasons hereinbefore stated, the
judgment should have been for the defendant.
It is the settled rule of law in this Court that absolute
property in, and dominion and sovereignty over, the soils under the
tidewaters in the original states were reserved to the several
states, and that the new states since admitted have the same
rights, sovereignty, and jurisdiction in that behalf as the
original states possess within their respective borders.
Martin v.
Waddell, 16 Pet. 367,
41 U. S. 410;
Pollard v.
Hagan, 3 How. 212,
44 U. S. 229;
Goodtitle v.
Kibbe, 9 How. 471,
50 U. S. 478;
Mumford v.
Wardwell, 6 Wall. 423,
73 U. S. 436;
Weber v. Harbor
Commissioners, 18 Wall. 57,
85 U. S. 65. Upon
the acquisition of the territory from Mexico, the United States
acquired the title to tidelands equally with the title to upland,
but with respect to the former, they held it only in trust for the
future states that might be erected out of such territory.
Authorities last cited. But this doctrine does not apply to lands
that had been previously granted to other parties by the former
government, or subjected to trusts which would require their
disposition in some other way,
San Francisco v. Le Roy,
138 U. S. 656, for
it is equally well settled that when the United States acquired
California from Mexico by the Treaty of Guadalupe Hidalgo, 9 Stat.
922, they were bound, under the eighth article of that treaty, to
protect all rights of property in
Page 142 U. S. 184
that territory emanating from the Mexican government previous to
the treaty.
Teschemacher v. Thompson, 18 Cal. 11;
Beard v.
Federy, 3 Wall. 478.
Irrespective of any such provision in the treaty, the
obligations resting upon the United States, in this respect, under
the principles of international law, would have been the same.
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.
Repentigny, 5 Wall. 211,
72 U. S.
260.
These observations lead directly to the determination of the
force and effect of the title of the pueblo of San Francisco,
derived from the former government of Mexico, as opposed to the
title which it is insisted passed to the State of California upon
its admission into the union by virtue of its sovereignty over all
tidelands in the state below the high water line, even including
such as are situated within the limits of the pueblo.
If we have succeeded in showing that the tract in dispute was
part of the land claimed by the City of San Francisco as successor
of the Mexican pueblo of that name; that it is within the four
square leagues described in the decree of the United States Circuit
Court for the District of California entered May 18, 1865; that
that court decided and decreed that the claim of title was valid
under the laws of Mexico; that the official survey of the United
States officers is correct, and followed the decree of
confirmation, and that the patent of the government of the United
States, following the survey and decree, embraced within its calls
the property in dispute, we think it clearly follows that the
patent of the government is evidence of the title of the city under
Mexican laws, and is conclusive not only as against the government
and against all parties claiming under it by titles subsequently
acquired, but also as against all parties except those who have a
full and complete title acquired from Mexico anterior in date to
that confirmed by the decree of confirmation. This conclusion is
fully sustained by the decisions of this Court.
The case of
San Francisco v. Le Roy, 138 U.
S. 656,
138 U. S.
670-672, is directly in point. That was a bill by Le Roy
against the City of San Francisco to quiet his title to certain
property
Page 142 U. S. 185
within the limits of the city. The plaintiff below claimed at
the trial the benefit of a deed to the land from the Tideland
Commissioners of the state, which purported, for a consideration of
$352.80, to release to the grantee the right, title, and interest
of the State of California to the premises therein described. The
city relied on the patent of the government, based on the
confirmation of the United States Circuit Court for the District of
California.
The court held that the title of the city rests upon the decree
of the court recognizing the title to the four square leagues of
land, and establishing their boundaries, and that, even if there
were any tidelands within the pueblo, the power and duty of the
United States under the treaty to protect the claims of the City of
San Francisco as successor to the pueblo were superior to any
subsequently acquired rights of California over the tidelands. Upon
the question involved the court said:
"We do not attach any importance, upon this question of
reservation, to the deed of the Tideland Commissioners, executed to
Sullivan on the 3d of December, 1870, for the state did not at that
time own any tide or marshlands within the limits of the pueblo as
finally
established by the Land Department. All the
marshlands, so called, which the State of California ever owned
were granted to her by the Act of Congress of September 28, 1850,
know as the Swamp Land Act, by which the swamp and overflowed lands
within the limits of certain states, thereby rendered unfit for
cultivation, were granted to the states to enable them to construct
the necessary levees and drains to reclaim them. 9 Stat. c. 84, p.
519. The interest of the pueblo in the lands within its limits goes
back to the acquisition of the country, and precedes the passage of
that act of Congress. And that act was never intended to apply to
lands held by the United States charged with any equitable claims
of others, which they were bound by treaty to protect. As to
tidelands, although it may be stated as a general principle -- and
it was so held in
Weber v. Commissioners, 18
Wall. 57,
85 U. S. 65 -- that the titles
acquired by the United States to lands in California under
tidewaters
Page 142 U. S. 186
from Mexico, were held in trust for the future state, so that
their ownership and right of disposition passed to it upon its
admission into the union, that doctrine cannot apply to such lands
as had been previously granted to other parties by the former
government or subjected to trusts which would require their
disposition in some other way. When the United States acquired
California, it was with the duty to protect all the rights and
interests which were held by the pueblo of San Francisco under
Mexico. The property rights of pueblos, equally with those of
individuals, were entitled to protection, and provision was made by
Congress in its legislation for their investigation and
confirmation.
Townsend v. Greeley, 5 Wall.
326,
72 U. S. 337. The duty of the
government and its power in the execution of its treaty obligations
to protect the claims of all persons, natural and artificial, and,
of course, of the City of San Francisco as successor to the pueblo,
were superior to any subsequently acquired rights or claims of the
State of California or of individuals. The confirmation of the
claim of the city necessarily took effect upon its title as it
existed upon the acquisition of the country. In confirming it, the
United States, through its tribunals, recognized the validity of
that title at the date of the treaty -- at least recognized the
validity of the claim to the title as then existing -- and in
execution of its treaty obligations, no one could step in between
the government of the United States and the city seeking their
enforcement. It is a matter of doubt whether there were any lands
within the limits of the pueblo, as defined and established by the
Land Department, that could be considered tidelands which,
independently of the pueblo, would vest in the state. The lands
which passed to the state upon her admission to the union were not
those which were affected occasionally by the tide, but only those
over which tidewater flowed so continuously as to prevent their use
and occupation. To render lands tidelands which the state by virtue
of her sovereignty could claim, there must have been such
continuity of the flow of tidewater over them, or such regularity
of the flow within every twenty-four hours, as to render them unfit
for cultivation, the growth of grasses, or other uses to which
upland
Page 142 U. S. 187
is applied. But even if there were such lands, their existence
could in no way affect the rights of the pueblo. Its rights were
dependent upon Mexican laws, and when Mexico established those
laws, she was the owner of tidelands as well as uplands, and could
have placed the boundaries of her pueblos wherever she thought
proper. It was for the United States to ascertain those boundaries
when fixing the limits of the claim of the city, and that was done
after the most thorough and exhaustive examination ever given to
the consideration of the boundaries of a claim of a pueblo under
the Mexican government. After hearing all the testimony which could
be adduced, and repeated arguments of counsel, elaborate reports
were made on the subject by three Secretaries of the Interior. They
held, and the patent follows their decision, that the boundary of
the bay, which the decree of confirmation had fixed as that of
ordinary high water mark as it existed on the 7th of July, 1846,
crosses the mouth of all creeks entering the bay. There was
therefore nothing in the deed of the tideland commissioners which
could by any possibility impair the right of the city to exercise
the power reserved in the Van Ness ordinance over such portions of
the lands conveyed to occupants under that ordinance as had been
occupied or set apart for streets, squares, and public buildings of
the city. Such a reservation should have been embodied in the
decree in this case."
In the case of
Beard v.
Federy, 3 Wall. 478,
70 U. S. 491,
the Court, upon a question very similar to this in many of its
aspects, followed a similar course of reasoning, from which we
think the conclusion we have reached is logically deducible. In
that case, the Court uses the following language:
"The position of the defendants is that, as against them, the
patent is not evidence for any purpose; that, as between them and
the plaintiff, the whole subject of title is open, precisely as
though no proceedings for the confirmation had been had and no
patent for the land had been issued. Their position rests upon a
misapprehension of the character and effect of a patent issued upon
a confirmation of a claim to land under the laws of Spain and
Mexico. "
Page 142 U. S. 188
"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 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. 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 land 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 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 claims is finally determined.
When informed by the action of its tribunal 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
Page 142 U. S. 189
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 the correctness of
the action of the tribunals and officers of the United States in
the location 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,
[meaning the fifteenth section of the act of 1851, for the purpose
of ascertaining and settling private land claims in California.]
The term 'third persons,' as there used, does not embrace all
persons other than the United States and the claimants, but only
those who hold superior title, such as will enable them to resist
successfully any action of the government in disposing of the
property."
Judgment reversed and cause remanded with directions for
further proceedings in conformity with this opinion.
MR. JUSTICE FIELD, concurring.
I concur in the judgment of this Court and in the views
expressed in its opinion. As a correct solution of the questions
involved is of vital importance to the security of titles claimed
under confirmed Mexican grants in California, followed by a survey
made and a patent issued under the Land Department of the
government, and as I have had personal knowledge of
Page 142 U. S. 190
all legal proceedings touching the claim of the pueblo of San
Francisco from their commencement, I will venture to make some
observations, in addition to those of my brethren, upon the
propositions of law advanced by the court below. Those
propositions, if maintained, would in my judgment unsettle titles
held under patents issued upon such confirmed grants and lead to
great litigation in the state, to the serious detriment of its
interests and those of its people.
The action is ejectment for the possession of certain premises
within the limits of the City and County of San Francisco, and also
within the boundaries of the tract of land confirmed to the city,
as successor of a Mexican pueblo, as they are described in the
official survey of the tract made under the direction and authority
of the Land Department, and carried into the patent of the United
States.
The tract confirmed is designated in the decree of confirmation
rendered by the circuit court of the United States on the 18th of
May, 1865, as
"a tract situated within the County of San Francisco, and
embracing so much of the extreme upper portion of the peninsula,
above ordinary high water mark (as the same existed at the
date of the acquisition of the country, namely, the 7th day of
July, A.D. 1846), on which the City of San Francisco is situated as
will contain an area of four square leagues; said tract being
bounded on the north and east
by the Bay of San Francisco,
on the west by the Pacific Ocean, and on the south by a due east
and west line drawn so as to include the area aforesaid,"
subject to certain deductions not material to be mentioned here.
The decree declares that the
"confirmation is in trust for the benefit of the lot holders
under grants from the pueblo, town, or City of San Francisco, or
other competent authority, and, as to any residue, in trust for the
use and benefit of the inhabitants of the city."
A survey and plat purporting to be of the tract were made by one
Stratton, a deputy of the Surveyor General of the United States for
California, and was approved by the latter officer in August, 1868.
The survey, instead of following from its commencement on the east
side of the tract to its termination the line of ordinary high
water mark of the Bay of
Page 142 U. S. 191
San Francisco, as it existed on the 7th of July, 1846, followed
such line only a part of the way. Of its departures from that line,
it is sufficient to mention that when the survey reached the mouth
of the estuary or stream entering the bay known as "Mission Creek,"
it left the shore of the bay and ran up along the bank of the creek
on its right side from its entrance for a distance of over a mile,
then, crossing the creek, passed down on the other side to the bay,
extending back from the creek on each side, so as to exclude from
the survey a large tract of what was called "marshland."
To the approval of the survey and plat the City and County of
San Francisco filed their protest and objections. The military
officer of the United States in command of the Department of
California also filed objections to so much of the survey as
related to the military reservation within the limits of the
tract.
Surveyor General Day succeeded the officer who had approved the
survey, and he forwarded the protest and objections to the
Commissioner of the General Land Office, accompanied by his opinion
that the objections were well taken in several particulars, and
recommended, among other things, that the plat and survey should be
amended so as to include the marshland lying on Mission Creek
within the four square leagues, and by the resurvey of the southern
and eastern boundaries of the military reservation. The
Commissioner, however, disregarded the objections and approved the
survey, founding his conclusion upon the alleged long acquiescence
of the City and County of San Francisco, from which he inferred a
recognition of its correctness and a waiver of the protest and
objections.
The confirmation was, as already stated,
"in trust for the benefit of the lot holders under grants from
the pueblo, town, or City of San Francisco, or other competent
authority, and, as to any residue, in trust for the use and benefit
of the inhabitants of the city."
The legislation of Congress releasing the interest of the United
States to the city was also in trust for the beneficiaries named,
14 Stat. 4, so that the City of San Francisco had no interest in
the lands within the confirmed tract other than as a trustee,
except where parcels had been
Page 142 U. S. 192
acquired by purchase or conveyance from other sources than the
pueblo. All pueblo lands she held simply in that character. It was
incumbent upon her, therefore, to take such steps as were necessary
to secure and perfect the title of her
cestuis que
trustent. She accordingly retained counsel to protect their
interests as well as her own, and he made a formal appeal for the
benefit of both to the Secretary of the Interior from the decision
of the Commissioner.
Certain lot holders were also permitted to appear before the
Secretary and argue the case as parties interested in the title. An
appeal was also taken by the military commander of the department,
on behalf of the United States, to correct alleged errors in the
survey of the military reservation, which kept the whole survey
open before the Secretary until it was finally determined. Any
change either by the enlargement or diminution of the reservation
necessarily affected other lines of the survey, reducing or
extending them as the quantity embraced within the tract surveyed
was increased or diminished.
Mr. Schurz was then at the head of the Interior Department, and
he examined at great length the action of the Commissioner and of
the survey or general upon the survey, received a large amount of
testimony upon the objections presented, and heard arguments of
counsel thereon, and he held that the treatment of the survey by
the Commissioner proceeded on the assumption that the United States
had no interest in the matter, and that, if the state and city were
satisfied, the duty of the department was to approve the survey.
This the Secretary held to be a grave error, observing that if the
excluded tracts which the city claimed under the protest were above
high water mark in 1846, they ought to be included in the survey,
and then the southern boundary line would have to be moved further
north, excluding a corresponding quantity which would fall into the
public lands of the United States. No stipulation or agreement,
therefore, said the Secretary, between the state and the city and
county could estop or relieve the officers of the department from
the duty of executing the decree or of protecting the interests of
the government, adding that if the city and county should ask to
withdraw the protest
Page 142 U. S. 193
or to have the same dismissed, the government would still have
the right to make use of the objections and of the evidence filed
in their support for its own protection as well as for properly
surveying the claim in accordance with the decree. He therefore
discarded entirely the ground which the Commissioner had advanced
as the principal reason for approving the survey.
The protest and objections of the city and county referred to
tracts of marshland lying near and south of Mission Creek. They
alleged that such lands were not overflowed by tidewater except at
the spring tides; that the line of ordinary high water mark upon
them on the side of the bay was sharply defined by a growth of
samphire, a marine reedy plant which grows down to such line and no
further. The testimony before the Secretary showed that the line
thus defined was traced with a blue pencil on the engraved map of
the coast survey made by officers of the United States between 1850
and 1857, and that the marshlands, including the premises in
controversy, were above the line thus designated. Testimony of old
residents of San Francisco, some of whom had resided there as early
as 1842 and others in 1849 and down to a period long after 1851,
and were familiar with the character of the land fronting on the
bay, corroborated from their personal knowledge the evidence of
this map as to the marshlands excluded from the survey being above
the ordinary line of high water mark of the bay.
It also appeared before the Secretary that by an act of the
Legislature of California passed March 26, 1851, the state had
granted to the City of San Francisco the use and occupation for
ninety-nine years of certain lands designated as "Beach and Water
Lots," and that in describing those lands, it had made one of their
boundaries the natural high water mark of the bay, the line of such
high water mark extending to its point of intersection with the
southern boundary of the city. The act provided that within thirty
days after its passage, the City of San Francisco should deposit in
the offices of the Secretary of State and of the Surveyor General,
and in the office of the Surveyor of the City of San Francisco, "a
correct map of
Page 142 U. S. 194
said boundary line, distinctly and properly delineated by a red
line."
Such maps were made and deposited as required, and from that
time afterwards they were referred to by all parties in the city as
determining the true line of ordinary high water mark as it had
previously existed. A copy of one of them was before the Secretary.
They represented, as he held, the line of ordinary high water mark
which had been established, sanctioned, and recognized in the most
solemn manner by the state and city for years, and was the best
available evidence of ordinary high water mark of 1846 around that
portion of the city. That line, as traced on the maps, crossed the
mouth of Mission Creek and the mouths of all other creeks which in
1851 emptied into the Bay of San Francisco. He therefore ordered
the Commissioner to direct the Surveyor General to secure a correct
and authentic copy of the map, designating the line of natural high
water mark, in accordance with the act of 1851, and make it the
basis of a survey of so much of the exterior boundary of the claim
as it represented, and to modify the Stratton survey in accordance
therewith.
Subsequently, after Mr. Schurz had ceased to be the head of the
Interior Department and Mr. Teller had become Secretary,
application was made to the latter officer to review the decision
of the former, and upon such application argument of counsel was
heard and a most extended consideration of the whole matter was
had. Secretary Teller observed that all the material questions
relating to the boundaries of the tract confirmed were settled
except the single inquiry whether or not, in running the line of
ordinary high water mark of the ocean and especially of the bay,
the main shore or course line of such body of water identified by
its larger description should be followed, cutting across the
months of streams, estuaries, and creeks which, intersecting the
body of the peninsula, find their entrance into the ocean or bay,
or whether such estuaries as fall below high tide should be
segregated by following up the tide line on one side and down on
the other, so as to make them, as it were, a part of the sea. He
said that his predecessor had decided that the former was intended
by the decree and
Page 142 U. S. 195
expressed its true construction, and, after mature deliberation,
he adhered to the same view.
"When we look," said the Secretary,
"at the calls for boundary, there is no ambiguity, no doubtful
phraseology, said tract being bounded on the north and east by the
Bay of San Francisco, on the west by the Pacific Ocean. The tract
bounds upon the bay and ocean, not upon estuaries, creeks, and
streams intersecting such tract, even though they be navigable and
technically termed 'arms of the sea.' The boundary, he added, was
not the stream, but the bay; consequently the ordinary high water
mark must be the high water mark of the shore as pertaining to the
sea, and not the high water mark of the bank as pertaining to a
river or stream, so that although Mission Creek was alleged to have
been as well a tidal inflow as an outlet for the inland waters, it
nevertheless fell within banks, instead of resting upon shores, and
must be considered an inland water for all purposes. He added that
it was plain that the high water mark extended to the shore of the
bay, leaving out any reference whatever to the inland channels of
the streams intersecting the granted peninsula. He accordingly
directed a substantial adhesion to the decision of his predecessor,
and overruled the application for its review."
After much difficulty with the surveying officers, a survey was
made pursuant to the directions given, and was approved by the then
Commissioner of the General Land Office, and upon that survey a
patent was issued to the City of San Francisco bearing date the
20th day of June, 1884. This patent was forwarded to the Mayor of
San Francisco, and was accepted on behalf of the city and
county.
When Mr. Lamar succeeded Mr. Teller as the head of the Interior
Department, application was made to him to recall the patent, and
issue a new one in accordance with the Stratton survey. In support
of the application, it was strenuously contended, by the same
parties who had resisted the action of his predecessors, that there
was a want of jurisdiction on their part to review the decision of
the Commissioner of the Land Office. Such contention was urged upon
the supposed meaning of the statute, and on the ground that the
supervisors of
Page 142 U. S. 196
the City and County of San Francisco had by resolution directed
that no appeal should be taken from his decision, and, when it was
taken by counsel retained for the protection of the interests of
the lot holders as well as of the city, had declared that his
action was unauthorized.
The Secretary, in considering the objections, referred to the
fact that the supervisors, subsequently to those resolutions, had
requested him, before whom they admitted the case was then pending
relating to the boundaries of the military reservation, to take up
and decide the case without further delay, and after a careful
review of the question of jurisdiction and the proceedings
preliminary to the issue of the patent, he refused to recall the
patent, holding that an order by him to that effect would be
illegal and void, and that the matter presented for his
consideration in the past proceedings of the case did not justify
any recommendation to the legal department of the government to
institute proceedings to recall or modify or in any manner
interfere with the patent.
I have stated with as much brevity as possible the steps taken
for the confirmation of the title of the city as successor of the
Mexican pueblo, which are set forth more in detail in the opinions
of the different Secretaries of the Interior laid before us on the
hearing, for the statement is important to a clear perception of
the character and import of the rulings of the referee and of the
court below. An extended narrative of the proceedings would occupy
a much greater space, and would show that parties claiming an
interest in the lands left out of the Stratton survey, and
resisting the approval of the official survey subsequently made,
had also applied to the Supreme Court of the District of Columbia
and to Congress for aid to carry out their pretensions, and were
met by the declaration that to obtain a remedy for any errors
alleged, resort should have been had to the Secretary of the
Interior as the only revisory authority over the action of the
inferior officers of the Land Department. It would also show that
in obtaining a recognition of its claim, the city had met from them
at every step the most strenuous opposition, and that every
possible objection taken to the claim and survey since
Page 142 U. S. 197
was then presented and fully considered by the different
Secretaries of the Interior, so that with truth was it said in the
recent decision of this Court in
San Francisco v. Le Roy,
138 U. S. 656,
138 U. S. 672,
that the boundaries of the pueblo were established by the United
States after the most thorough and exhaustive examination ever
given to the consideration of the boundaries of a claim of a pueblo
under the Mexican government.
The parties who carried on the long and protracted contest in
the Land Department against the confirmation of the claim and its
survey as finally approved asserted the acquisition of an interest
in those premises under certain deeds of the Tideland
Commissioners, created by the Legislature of California.
On March 30, 1868, that legislature passed an act to survey and
dispose of certain salt marsh and tidelands belonging to the state.
It empowered the governor to appoint three persons, who were to
constitute a Board of Tideland Commissioners, and authorized them
to take possession of all the marsh and tidelands, and lands lying
under water, situate along the Bay of San Francisco and in the City
and County of San Francisco, belonging to the state; to have the
same surveyed, and maps of the property prepared; to sell the
interest of the state therein, and to execute conveyances to the
purchasers. Laws of California, 1867-1868, c. 543.
At that time, one George W. Ellis had settled upon lands
excluded from the Stratton survey, and after its passage he applied
to the Board of Tideland Commissioners, and obtained from it two
deeds, dated in November, 1875, covering the premises. His grantees
carried on the contest, but not in their own names, against the
location and survey of the tract confirmed before the Interior
Department, and in every possible way sought to defeat its action
and secure such a survey as would leave the lands claimed by them
without the limits of the pueblo. The interest which the plaintiffs
below, the United Land Association and Clinton C. Tripp, had or
claimed in the premises covered by the patent to the City of San
Francisco was founded upon these conveyances of the Tideland
Commissioners. Relying upon a title from that source, the present
action was brought.
Page 142 U. S. 198
As stated above, it is an action of ejectment for the possession
of premises within the limits of the pueblo survey, and covered by
the patent to the City of San Francisco. After issue was joined, it
was by consent of parties referred to a referee.
The plaintiffs claimed title to the premises in controversy
under the deeds mentioned. The defendant relied upon the fact that
the premises were within the boundaries of the tract patented. They
were situated in what constituted in 1854 the channel of Mission
Creek, above its mouth. A witness produced by the plaintiffs
testified that he knew their location and had made surveys in their
neighborhood in that year, and that they were then below the line
of ordinary high water mark. He did not add "of the bay," but as
the premises were where the water of the creek formerly ran and
where, for aught that appears in evidence, it may now run, it was
the high water mark of that creek to which he had reference.
The plaintiffs also gave in evidence the final decree of
confirmation of the claim of the City of San Francisco rendered by
the circuit court of the United States, and the Stratton survey,
mentioned above, with the certificate of approval of the surveyor
Surveyor General, and the confirmation thereof by the Commissioner
of the General Land Office. Objection was made to the introduction
of this survey on the ground that it was not competent evidence,
not being matter of record, and that it had been cancelled and
superseded by another survey made in accordance with instructions
of the Secretary of the Interior. The referee overruled the
objections under the exception of the defendant, admitted the
rejected survey, and, among other things, held that in approving
that survey the Commissioner was acting in a judicial capacity, and
that his judgment thereon was not reversible, and was not legally
reversed.
The defendant, to show that no title ever vested in the
plaintiffs under their alleged deeds from the Tideland
Commissioners, gave in evidence the patent of the United States
issued to the City of San Francisco, dated the 20th of June, 1884;
also the plat of the pueblo lands finally confirmed to the city
Page 142 U. S. 199
under instructions of the United States Surveyor General,
ordered by the Secretary of the Interior and approved by the
Commissioner of the General Land Office, upon which the patent
issued.
It was conceded that the patent included within its boundaries
the premises in question. The referee admitted the evidence thus
offered of the patent and survey, with the concession that they
included the demanded premises, but refused to find for the
defendant thereon, and the defendant excepted.
The decree of confirmation, as seen above, bounds the tract
confirmed on the north and east sides by ordinary high water mark
of the Bay of San Francisco. The Stratton survey, and the proofs
before the referee, did not show that the premises in controversy
were below that water mark of the bay, but only that they were
below that water mark at a point in the channel of Mission Creek,
and yet the referee held that the Stratton survey and the parol
proofs in the case showed that the premises were outside of the
specific boundary of the decree, and therefore remained the
property of the state. He accordingly gave judgment for the
plaintiffs.
His rulings on the trial exhibited several errors. He gave no
effect to the general rule that in actions of ejectment, a patent
of the United States, issued upon a confirmation of a land claim to
which protection had been guaranteed by treaty, cannot be
collaterally assailed for mere error alleged in the action of the
officers of the government. He admitted in evidence, against the
objections of the defendant, the rejected survey of Stratton in
contravention of the principle that a rejected survey of officers
of the Land Department is in law no survey, and inoperative for any
purpose. It has so been held in numerous instances, and never to
the contrary. In the particulars in which the Stratton survey was
modified by direction of Secretaries Schurz and Teller, it was of
no more efficacy as a legal document than so much waste paper. He
apparently perceived that there was something bizarre in receiving
as evidence a rejected survey, or a modified survey, except in the
particulars in which the modification was had, and sought to avoid
this position by holding that the action
Page 142 U. S. 200
of the Commissioner in approving the survey was beyond the reach
of the Interior Department, and that it was not therefore legally
reversed, thus brushing aside the important functions of that
department over the surveys of private land claims, which it has
exercised since its organization, and which have been always
recognized by the courts of the United States.
Cragin v.
Powell, 128 U. S. 691,
128 U. S. 697,
9 Sup.Ct. Rep. 203. In answer to his erroneous conclusions in this
respect, nothing can be added to the force of the statement in the
opinion of the majority.
There were several hundred claims to lands in California, under
Mexican grants, presented for confirmation to the Board of Land
Commissioners created by the act of 1851. They embraced many
millions of acres of land, and in a large number, probably the
majority of cases, where the claim was confirmed, the survey
thereof by the Surveyor General for the state, after being
considered and approved or rejected by the Commissioner of the
General Land Office, passed under the supervision of and were in
some respects modified by the Secretary of the Interior as the head
of the Land Department of the United States. If the position taken
by the referee, that the action on the survey of such claims by the
Commissioner was final, could be sustained, every patent issued
upon a survey of a claim which had been in and respect modified or
changed by direction of the Secretary of the Interior would be open
to attack, to the frightful unsettlement of titles in the state and
to the infinite disturbance of the peace of its people.
When the patent to the city was brought before the referee, and
it was conceded that the land in controversy was included within
the boundaries embraced by the survey embodied in it, judgment
should have been rendered for the defendant. The title under the
patent necessarily antedated any possible claim of the State of
California to the lands within the limits of the pueblo. It went
back to the acquisition of the country from Mexico. When the United
States acquired California, the inhabitants were entitled by the
law of nations to protection from the new government in all rights
of property then possessed by them. Jurisdiction and sovereignty
passed from one nation to the other by the cession, but not private
rights of
Page 142 U. S. 201
property. Their ownership remained as under the former
government. And by the term "property," as applied to land, all
titles are included -- legal or equitable, perfect or imperfect.
"It comprehends," as said by this Court in
Soulard v.
United States, 4 Pet. 511,
"every species of title, inchoate or complete. It is supposed to
embrace those rights which are executory as well as those which are
executed. In this respect, the relation of the inhabitants to their
government is not changed. The new government takes the place of
that which has passed away."
By the Treaty of Guadalupe Hidalgo, the United States also
stipulated for such protection, and that implied that rights of
property, perfect or imperfect, held by the inhabitants previous to
the acquisition of the country, should be secured to them so far as
such property was recognized by the laws and Constitution of the
new government, and for that purpose that the holders should
receive from the new authorities such official and documentary
evidence of their rights as would assure their full possession and
enjoyment. Pueblos in that respect stood in the same position as
private individuals. All their rights of property, legal or
equitable, were alike entitled to protection. Whatever property was
ceded to the United States from Mexico, whether marshlands or
tidelands, passed subject to the obligation to protect existing
claims to them of all parties. The state could take no greater
interest than the United States acquired. All lands she received
went under her control charged with the equitable claims of others,
which the United States were bound by the treaty and the law of
nations to protect. The marshlands granted to her by the act of
Congress of September 28, 1850, were thus affected. And the same
was true of the tidelands. Whatever lands of that nature passed to
the United States were held for the future state, subject, however,
to any trust from the former government which might require their
disposition in some other way. The duty and power of the United
States in the execution of their treaty obligations to protect the
property claims of all persons, natural or artificial, were
superior to any subsequently acquired interest of the state or of
individuals. Mexico owned the tidelands
Page 142 U. S. 202
as well as the uplands, and it was of course in her power to
make such disposition of them in the establishment and organization
of her pueblos as she may have judged expedient, and whether she
did make such disposition by her laws was a matter exclusively for
the United States to ascertain and determine. As said by the
Supreme Court of California in
Ward v. Mulford, 32 Cal.
372:
"In private proprietorship and in sovereign right, the United
States succeeded the Mexican government, and in both these respects
California, so far as she acquired any right in either, succeeded
the United States and became privy to the latter in estate in
respect to all lands within her borders, whether such as may be
held in private or sovereign right. In this respect, no distinction
can be made between the lands acquired by her through federal
grants and such as she took by virtue of her sovereignty."
The obligation of protection imposed upon the United by the law
of nations. and assumed by the treaty, was political in its
character, to be performed in such a manner and on such terms as
the United States might direct. As held by this Court in
Beard v.
Federy, 3 Wall. 478,
70 U. S. 492,
they declared by the Act of March 3, 1851, to settle private land
claims in California, the manner and the terms upon which they
would discharge this obligation. They there established a special
tribunal or board of commissioners before which all claims to land
in that state derived from Spanish or Mexican authority were to be
investigated. They 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 decisions rendered
by the Commissioners to the district court, and from the decisions
of that court to the Supreme Court of the United States, and
declared that in the determination of the claims presented the
Commissioners and those tribunals should
"be governed by the Treaty of Guadalupe Hidalgo, the law of
nations, the laws, usages, and customs of the government from which
the claim is derived, the principles of equity, and the decisions
of the Supreme Court of the United States, so far as they were
applicable."
9 Stat. c. 41, § 11, p. 633. It also made provision for the
investigation and
Page 142 U. S. 203
determination of the property rights of pueblos, and designated
the officers who should in all cases survey and measure off the
land when the validity of the claim presented was finally
determined. When it appeared by the action of their officers and
tribunals that the claim asserted was valid and entitled to
recognition and that its boundaries were ascertained, the
government was to issue its patent to the claimant.
And what was the effect and operation of this instrument? It was
not merely a quitclaim or conveyance of whatever interests the
United States held in the lands embraced. It was something more. It
was, as declared in the case cited, record evidence upon the title
of the claimant from the former government. As there said:
"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, so long as it remains
unvacated, it is conclusive. And it is equally conclusive against
parties claiming under the government by title subsequent."
The patent, being thus conclusive, can only be resisted by those
who hold paramount title to the premises from Mexico, antedating
the title confirmed -- that is, by persons who can successfully
resist any action of the United States in disposing of the property
or in perfecting the title of the claimant.
In the case from which I have cited, the court added, in order
to impress the importance of this doctrine for the stability of
titles in the state resting upon confirmed and patented Mexican
grants:
"It is in this effect of the patent as a record of the
government that its security and protection chiefly lie. If parties
asserting interest 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 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
Page 142 U. S. 204
security to its possessors. 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."
The doctrine of that case has never been departed from, but on
the contrary has always been followed and approved. Numerous
decisions of the Supreme Court of California, commencing with the
thirteenth volume of its reports and extending down to a late
period, express the same doctrine with equal clearness and
emphasis.
Moore v. Wilkinson, 13 Cal. 484;
Yount v.
Howell, 14 Cal. 465;
Teschemacher v. Thompson, 18
Cal. 11;
Leese v. Clark, 18 Cal. 535;
Ward v.
Mulford, 32 Cal. 365;
Chipley v. Farris, 45 Cal. 528;
People v. San Francisco, 75 Cal. 388.
But notwithstanding the superior and conclusive character of the
title presented by the patent and the emphatic decision of the
highest tribunal of the country and repeated decisions of the state
supreme courts to the same effect, that until vacated, that
instrument was conclusive against the government and parties
claiming by title subsequent, the referee found otherwise and held
that the plaintiffs, who derived whatever interest they possessed
twenty-nine years subsequently to that of the city, held the better
right and were entitled to judgment for the demanded premises, and
such judgment was entered in one of the superior courts of the
city. From that judgment an appeal was taken to the supreme court
of the state, where it was affirmed. A rehearing being granted, a
reargument was had, and a second time the judgment was affirmed by
four judges of the court, the remaining three dissenting. From the
latter judgment the case is brought to this Court on a writ of
error.
From the opinions upon both affirmances, it appears that the
court below, equally with the referee, lost sight of the principle
that in actions at law, a patent of the United States, upon a
confirmation of a private land claim asserted by virtue of rights
acquired under a foreign government, is not open to
Page 142 U. S. 205
collateral attack, but must be taken as correct until vacated,
not only as to the validity of the claim confirmed, but as to the
boundaries established. It is hardly necessary to say that any
attempt to overthrow these conclusions in either particular, where
the tribunal affirming the validity of the claim and the department
establishing the boundaries had jurisdiction, is collaterally
attacking the patent.
That the land Commissioners and the circuit court of the United
States had jurisdiction to hear and determine the validity of the
claims asserted by the City of San Francisco is not open to
question. The laws of the United States gave them such
jurisdiction, and when that claim was confirmed, the law directed
by what officers its boundaries should be established and surveyed.
It was the exclusive province of those officers to ascertain where
the line of true boundary ran, subject to the control and
supervision of the Interior Department. To say that those who
directed and supervised the survey had not jurisdiction to perform
that duty is to deny efficacy to the laws of Congress.
The court below upon the first affirmance rejected the boundary
as established and surveyed by the officers appointed by law for
that purpose, and assumed that the line of ordinary high water mark
of Mission Creek running into the bay was, as far as such line
extended, the true boundary designated by the decree, and held that
land below such line was the property of the state. In other words,
it assumed that the boundary of the pueblo was to follow the line
of high water mark of the creek, and not be confined to the high
water mark of the bay. It thereupon stated that the question
involved was whether the officers of the Land Department had power
to patent land outside of the natural boundaries given in the
decree of confirmation.
In this statement, the learned court fell into an error. No such
question was involved in the case. The approved survey upon which
the patent was issued crossed the mouth of Mission Creek, and
included the lands above its mouth -- among them, the premises in
controversy. The question involved, therefore, was whether, in an
action of ejectment for the
Page 142 U. S. 206
possession of those lands, the plaintiffs could collaterally
assail the correctness of the official survey upon which the patent
was issued and establish another line as the true boundary, and
then recover the lands on showing that they were outside of the new
boundary thus established. I do not think that such a position was
ever successfully asserted in any court. If there was error in the
survey embodied in the patent, it could not have been shown in this
action. It could only have been corrected by direct proceedings for
that purpose instituted by the government or by its authority. This
is elementary law, and in vain will authorities be sought to
contradict this view.
Proceeding on the assumption that a different line from the one
officially established constituted the true boundary line of the
tract confirmed, the court below declared that it was the duty of
the surveyor to follow such different line -- though otherwise
directed by the highest officer of the Land Department, who had the
sole right of control in the matter -- and that, as the surveyor
did not follow that different line, he included, according to its
judgment, lands within his description not within the decree of
confirmation.
I may speak of the decree with some confidence as a member of
the court by which it was rendered, and a distinct recollection
remains with me of the circumstances under which the language used
was adopted. The original decree of confirmation was rendered in
October, 1864, and stated the land confirmed to be
"a tract situated within the County of San Francisco, and
embracing so much of the upper portion of the peninsula on which
the City of San Francisco is situated as will contain an area of
four square leagues,"
as described in the petition. A motion for a rehearing was made
which kept the case open until the following spring, the judge who
pronounced the decree being absent from California in Washington in
attendance upon the Supreme Court. On his return, the question of a
rehearing was brought up, when it was suggested by counsel that the
decree needed correction so as not to include in the claim
confirmed the beach and water lots conveyed to the city by the act
of the legislature of 1851. Reference was made to the map prepared
under the directions
Page 142 U. S. 207
of that act, on which a line was drawn in red ink, making the
separation of lands above the ordinary high water mark of the bay
and lands below it, and it was suggested that the insertion in the
decree of the words "above ordinary high water mark, as the same
existed at the date of the conquest of the country, namely, the 7th
of July, 1846" would establish the line as indicated on the map,
and that thus in the decree of confirmation lands granted to the
city by the state would not be affected. Upon that suggestion, made
by Mr. Gregory Yale, a lawyer of distinction at the bar, whose
clients had become alarmed at the language of the original decree,
the change was made.
In addition to this fact, it may be observed that at the time
the circuit court was not ignorant of the universal rule governing
the measurement of waters -- to which the supreme court of the
state makes no reference in its decision, and of which it seems to
have been entirely oblivious -- that where water of a larger
dimension is interested by a water of a smaller dimension, the line
of measurement of the first crosses the latter at the points of
junction from headland to headland. The existence of tidelands in
the intersecting water in no respect affects the result. For
illustration, in the measurement of a body of water like Long
Island Sound, when the Connecticut River is met, the line of survey
does not follow up that river to Hartford because the tide is felt
at that place, but it crosses the mouth of the river from headland
to headland. So too, the measurement of Chesapeake Bay does not
include the Potomac River up to Washington because the tide is felt
at the site of the capital. It would be absurd to include in the
measurement of the Bay of San Francisco the waters of the River
Sacramento as far as the City of that name, nearly one hundred
miles above the bay, because the tide is felt there, or to embrace
the River San Joaquin as far as Stockton because the tide reaches
to that place. This is so plain that it excites surprise that any
question should have been made upon the subject. And if a river
extending one hundred miles or more could not be included in the
bay, even though affected by the tides, neither can a stream of
less dimensions, though not
Page 142 U. S. 208
exceeding over one or two miles. Not only has this rule in the
measurements of waters prevailed on the continent of Europe from
the time of the Roman empire, but it has always been accepted as
controlling in England and in the United States, and never been,
that I am aware, questioned except in the present case.
When the survey here was pending before one of the Secretaries
of the Interior, application was made to the head of the coast
survey of the United States for the rule adopted by that bureau in
the measurement of waters, and the answer was the statement of the
rule which I have given, and it is a singular fact that, as an
illustration of its application, reference was had to the Bay of
San Francisco and Mission Creek, and the declaration made that in
the measurement of the bay, the line of the survey would cross the
mouth of that creek. Admiral Rodgers, who was at one time the head
of the coast survey in California, and had surveyed the line of
ordinary high water mark of the Bay of San Francisco, filed his
affidavit to the effect that he had since 1851 been stationed in
California, in charge of the United States survey of the coast
thereof, including the peninsula of San Francisco; that the traced
chart or map showing the line of ordinary high water along the
eastern side of the peninsula of San Francisco from Rincon Point to
and including Islais Creek, as surveyed by the coast survey of the
United States in 1852, was prepared from the published surveys of
the coast survey of the United States, and that the line laid down
on that map in blue pencil, from Rincon Point, around Mission Bay,
to and including Islais Creek, and crossing Mission and Islais
Creeks, was a true delineation of the line of ordinary high water
mark as it existed when he first knew it, in the year 1852. He
added that
"in determining a boundary line stated as the line of 'ordinary
high water mark' on the Bay of San Francisco, there can be no other
course than to follow the stated line of ordinary high tide on the
shore of the bay, crossing the mouths of all inferior tidal streams
or estuaries, many of which enter into San Francisco Bay at
different points, and not to follow the meanders of any such
inferior tidal streams or estuaries. "
Page 142 U. S. 209
The assumption, therefore, of the court below that the decree of
confirmation called for any other line than the one actually
surveyed and embodied in the patent was an error. It was founded
upon a misapprehension of the law governing the surveys of waters
of that kind, or from overlooking its existence. The statement in
the opinion of the court as to the requirement that the Surveyor
General in making the survey of a confirmed claim should follow the
boundaries of the decree as near as practicable, whenever the
decree specifically designates them, is undoubtedly correct, and it
was the duty in this case of the surveying officers of the Land
Department, under the supervision of the Secretary of the Interior,
to ascertain what those boundaries were and to follow the decree in
making the survey. That they accomplished this is conclusively
established, so far as the present action is concerned, by the
official survey itself, returned by them and subsequently approved
by the Commissioner of the Land Office.
The question as to what was the boundary line of the tract
confirmed also became the subject of judicial inquiry in the
circuit court of the United States in 1878. An action was brought
by one Tripp, who is one of the plaintiffs in this case, for a
parcel of land constituting a portion of a block in the City of San
Francisco. The premises were situated where Mission Creek formerly
ran, and distant about a mile from its mouth. All that part of the
stream covered by the block in which the premises were situated had
been filled in, and buildings erected thereon which were occupied
as private residences. The plaintiff claimed title under the same
conveyances of the Board of Tideland Commissioners upon which the
plaintiffs below rely in this case, and the same contention was
made there as here. The question presented was whether the title to
those premises passed by the Tideland Commissioners' deeds, or
whether they were within the limits of the pueblo claim as
confirmed, although not at that time patented. The court said:
"Whether the waters of the bay were ever carried by the tide
over the lands is a matter upon which the evidence is conflicting.
The creek was often swollen by water from the adjacent hills so as
to overflow its banks, and the tide
Page 142 U. S. 210
sometimes, though not regularly, forced back the waters of the
creek so as to cause a similar overflow. But from the view we take
of the case, it is immaterial whether the lands could ever properly
be termed tidelands or marshlands, whether they were at any period
covered by the daily tides or lay beyond their reach at their
highest flood. The record of the proceedings and the final decree
in the
Pueblo Case have been given in evidence, and from
them it appears that the premises are situated within the limits of
the tract confirmed to the City of San Francisco."
The court added:
"Mission Creek never constituted any portion of the Bay of San
Francisco, any more than the Sacramento River constitutes a portion
of the Bay of Suisun, or the Hudson River a portion of the Bay of
New York. As the demanded premises lie where Mission Creek formerly
existed, or where its banks were, they necessarily fall within the
tract confirmed to the city. The boundary of that tract runs along
the bay on the line of ordinary high water mark as that existed in
1846, crossing the mouth of all creeks running into the bay, and
that of Mission Creek among others. The boundary would have been a
very singular one had it followed the windings of that creek and
its branches wherever the tidewaters of the bay may have flowed.
The laws, of Mexico relating to lands to be assigned to pueblos
required that such lands should be laid out in a square or
prolonged form, according to the nature of the country, and, so far
as practicable, have regular lines for boundaries. The decree of
the United States circuit court in confirming the claim of the city
followed this requirement and gave the boundaries, which could be
easily ascertained and which formed as compact a body as the
situation of the country would permit."
Tripp v. Spring, 5 Sawyer 209, 212.
As thus appears, the identical question involved in this case
was decided in that. No case was ever tried with more care or
greater consideration, and at the conclusion of a trial of several
days, the court decided that judgment must be entered for the
defendant. The presiding justice stated the grounds of the decision
orally, and observed that, as the questions involved were deemed of
great importance, he would at a
Page 142 U. S. 211
subsequent day file an opinion embodying their substance. It is
a common practice with judges of the highest courts to give
opinions orally and write them out subsequently, after the decision
is rendered, and that fact in no way affects their authoritative
character. The pressure of business before the court may often
prevent any other course's being pursued.
Counsel for the plaintiff then stated that special findings in
the case were desired in order that, should the case reach the
supreme court, it might be finally determined there. Upon that
suggestion the entry of judgment was stayed, and an adjournment of
the court had that such findings might be prepared. On the next
day, the case was dismissed by stipulation of parties.
The opinion of the court, pronounced at the close of the trial
and subsequently written out, was, notwithstanding the dismissal,
as much authority on the questions of law presented as though a
formal judgment had been entered, although the judgment ordered,
because not entered on account of the dismissal, could not be
pleaded in bar of a future action.
The court below, having assumed that another line than the one
officially established was the true one, took the extraordinary
ground that the error committed in that respect by the surveying
officers, though acting under the express directions of the Land
Department, was jurisdictional and fatal to their action, rendering
it void and opening the patent embodying the survey to collateral
attack, and it proceeded to cite several decisions in supposed
support of this view, but which only were to the effect that where
the Land Department had no jurisdiction over the subject matter
considered, its patent could be assailed collaterally.
In thus holding, the court failed to distinguish between what
was upon its own statement mere error in the action of the Land
Department and matters which were entirely beyond its jurisdiction.
The ascertainment of the true line of the boundaries of the claim
confirmed was a matter especially entrusted to that department by
the laws of Congress, as already stated. If the officers of that
department, in executing the survey, made mistakes, ran erroneous
lines, and included
Page 142 U. S. 212
lands which they should have excluded, those facts did not
justify the assertion that they acted without jurisdiction in
making the survey and that therefore their whole proceedings were
void. If all that is asserted be true, they only erred in the
exercise of their jurisdiction, and the remedy for their errors
before the issue of the patent lay in an appeal to higher officers
of the department -- from the Surveyor General to the Commissioner,
and from his decision to the Secretary of the Interior -- and if,
after the issue of the patent, like objections were urged, the
remedy could be sought only by direct proceedings.
The distinction between errors committed where jurisdiction
exists to take the proceeding in which the alleged error arises and
where there is an entire want of jurisdiction over the subject
matter considered is too familiar to be discussed. The distinction
is constantly applied with reference to the proceedings of ordinary
tribunals. If they have jurisdiction of the subject matter and the
parties, their judgment cannot be collaterally assailed for mere
errors committed in the proceedings leading to it. The remedy for
errors must be sought by application for a new trial or by appeal
for a review to an appellate court. The same distinction prevails
with reference to the proceedings of the special tribunal or
department of the government to which is entrusted the supervision
of measures for the issue of its patent.
The cases referred to and dwelt upon as supposed to support the
opposite doctrine are not susceptible of the meaning attributed to
them. The principal cases cited are
Smelting Co. v. Kemp,
104 U. S. 641,
Wright v. Roseberry, 121 U. S. 488, and
Doolan v. Carr, 125 U. S. 618.
They assert no new doctrine, but law which has always existed and
been recognized, though seldom more misapplied than here. That the
United States cannot convey by patent what it never owned or has
already parted with, no matter with what formality the instrument
is issued, is a self-evident proposition. The government in that
respect is under the same limitations as an individual. That is the
only purport, so far as the point raised here is concerned, of the
decision in
Wright v. Roseberry,
Page 142 U. S. 213
where a patent of the United States for land claimed under the
preemption laws was defeated by showing that the premises in
controversy were swamp and overflowed land previously conveyed to
the state by the Swamp Land Act of September 28, 1850, 9 Stat. 519.
Nor could the United States authorize a patent for land to the
pueblo or to its successor, the city, if the former government of
Mexico had conveyed the property to others. There are such cases
within the limits of the pueblo, and the claims have been confirmed
and patented under the Land Department to the grantees or their
representatives. Whenever in the
Pueblo Case it could be
shown that grants had been made by Mexico of portions of the land
claimed by the pueblo to other parties, such grants were excepted
from the confirmation to the city. Nor can a patent of the United
States be issued by officers of the Land Department for lands
reserved from settlement and sale, and the want of authority in the
officers can be shown a law to defeat a patent of that character.
It is in such case an attempted conveyance of land not open to
sale, as would be a patent for land within the Yellowstone or
Yosemite Park. It was of land within the limits of a valid Mexican
claim excluded from grant to the Central Pacific Railroad Company
that the decision in
Doolan v. Carr had reference. It was
there held that the patent to the railroad company could be
defeated by showing that the lands conveyed were thus excluded.
There was nothing new in the doctrine that it could be shown in an
action at law that the property patented was not subject to grant.
Nor can it be questioned that if parties not authorized by law to
supervise the proceedings to a patent should assume that function,
the objection might be taken when the patent was offered in
evidence. As, for instance, if the Supervisors of San Francisco
should undertake to exercise the functions of the Land Department,
anyone prosecuted under their patent could assail it by showing the
power to execute such an instrument was vested in a different body.
So too, if the estate which the Land Department was authorized to
convey was different from that transferred by the patent -- as, for
instance, a leasehold interest instead of the fee -- that fact
could be shown, and the patent limited in its operation.
Page 142 U. S. 214
In
Smelting Co. v. Kemp, the court treated at large of
the conclusive presumptions attending a patent of the United States
for lands, but added, that in thus speaking of them, it assumed
"that the patent was issued in a case where the department had
jurisdiction to act and execute it -- that is to say, in a case
where the lands belonged to the United States and provision had
been made by law for their sale. If they never were public
property, or had previously been disposed of, or if Congress had
made no provision for their sale or had reserved them, the
department would have no jurisdiction to transfer them, and its
attempted conveyance of them would be inoperative and void, no
matter with what seeming regularity the forms of law may have been
observed. The action of the department would in that event be like
that of any other special tribunal not having jurisdiction of a
case which it had assumed to decide. Matters of this kind,
disclosing a want of jurisdiction, may be considered by a court of
law. In such cases, the objection to the patent reaches beyond the
action of the special tribunal, and goes to the existence of a
subject upon which it was competent to act."
The attempt is futile to use these cases or any other case to
establish the proposition that if an error can be shown in the
action of an officer of the Land Department in a matter subject to
its jurisdiction the proceeding of the officer may be treated as a
nullity, and the patent issued thereon be collaterally assailed.
This view is untenable, and does not merit serious consideration.
If it could be sustained, it would be subversive of all security in
the judgments of ordinary tribunals, as well as in those of special
tribunals like the Land Department. Nor is there any pertinency in
the observations as to the reservation from grant of the seashore
under the law of the former government. No claim was ever made in
the Pueblo case for any part of the seashore. Those terms apply in
this country only to land covered and uncovered by the daily tides.
They cannot possibly have any application to the banks of creeks,
or to land under their waters. The rule of the civil law of Europe
that lands covered and uncovered by the tides at their highest
flood during the year constitute the shore of the sea has never
Page 142 U. S. 215
been applied to that portion of this country ceded to the United
States by Mexico. The claim of the pueblo was for land above the
ordinary high water mark of the bay, not for any land covered and
uncovered by the tides, either daily or when they reach their
highest point during the year. As said in
San Francisco v. Le
Roy, 138 U. S. 656,
138 U. S.
671:
"The lands which passed to the state upon her admission to the
union were not those which were affected occasionally by the tide,
but only those over which tidewater flowed so continuously as to
prevent their sue and occupation. To render lands tidelands which
the state, by virtue of her sovereignty, could claim, there must
have been such continuity of the flow of tidewater over them, or
such regularity of the flow within every twenty-four hours, as to
render them unfit for cultivation, the growth of grasses, or other
uses to which upland is applied."
The reasons given by the court below on the second affirmance of
the judgment of the referee are marked by the objections stated to
its former opinion. The true doctrine as to the effect of patents
in actions at law is stated in a decision of the court below in
De Guyer v. Banning, rendered while this case has been
pending here, in which that court, following a long line of
previous adjudications, unbroken except by this case, declares that
upon a confirmation of a Mexican grant, the patent issued by the
United States to the claimant is the only evidence of the extent of
the grant, and that if there is a conflict as to its location and
extent between it and the decree of confirmation, the patent must
control. It is the only doctrine which will insure peace and
tranquillity to parties holding under patents issued upon confirmed
Mexican grants. Any other doctrine would introduce endless
confusion and perplexity as to all such titles. If there be in fact
any material conflict between the boundaries given in the decree of
confirmation and those described in the official survey, the only
remedy is to be sought by direct proceedings instituted by the
government or by its authority. Until the alleged conflict is thus
determined and adjusted, the patent must control.
From the views expressed, I am clearly of opinion that the
supreme court of the state erred in affirming the judgment
Page 142 U. S. 216
of the superior court entered upon the report of the referee. It
should have reversed that judgment and ordered judgment for the
defendant. This conclusion is, I think, established beyond all
controversy in the opinion of the Court. But it is unnecessary to
pursue this case further. I have treated it at much length because
the title of the city has been a subject of consideration in one
form or another for now over thirty-nine years, and the questions
presented have been discussed by counsel with marked ability and
learning. The claim was originally presented to the Board of
Commissioners in 1852, and it was decided by that board in 1854. It
was then appealed to the district court of the United States, and
there remained unacted upon for over eight years. An act of
Congress then authorized it to be transferred to the circuit court
of the United States, to which court it subsequently passed in
September, 1864. In October following, a decree of confirmation was
entered, which was modified May 18, 1865, and then entered in its
final form. An appeal from that decree was taken to the Supreme
Court of the United States, and was dismissed by that Court in
December, 1866, on motion of the Attorney General upon stipulation
of parties. A survey was made of the confirmed claim in 1868, and
that survey, being appealed from, remained unacted upon before the
Commissioner of the General Land Office for over nine years. After
it was acted upon by him, an appeal was taken from his decision to
the Secretary of the Interior, and it was before one Secretary
after another for five years, so that the patent was not issued
until 1884.
Even then, the opposition to the just claim of the city and of
parties holding under the city did not cease, but has been
continued in one form or other ever since. It is to be hoped that
all annoyances and litigation from such opposition will now be
ended.
THE CHIEF JUSTICE, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY did
not hear the argument or participate in the decision of this
case.