1. By the laws of Mexico, which prevailed in California at the
date of the conquest, pueblos or towns, when once established and
officially recognized, were entitled, for their benefit and the
benefit of their inhabitants, to the use of lands embracing the
site of such pueblos or towns and of adjoining lands within certain
prescribed limits. These laws provided for an assignment to the
pueblos of such lands, which were not to exceed in extent four
square leagues. The assignment was to be made by the public
authorities, and the land was to be measured off in a square or
prolonged form, according to the nature and condition of the
country. All lands within the general limits stated which were
required for public purposes were reserved from the assignment.
2. Until the lands were definitely assigned, the right of the
pueblo was an imperfect one. The government might refuse to
recognize it at all or might recognize it in a qualified form, and
it might be restricted to less limits than the four square leagues.
After the assignment, the right of
Page 73 U. S. 364
use and disposition (a limited one) was subject to the control
of the government of the country.
3. Though historical evidence and judicial decision show that
there was a Mexican pueblo of some kind, on the conquest of
California, at what is now the site of San Francisco, one entitled
to the usual rights of pueblos, no assignment of lands was ever
made to it under the former government. Its right to any lands
required, accordingly, recognition from the United States before it
could be turned into an indefeasible estate, and until the land
claimed under the pueblo right was set off and measured by its
authority, the government could set apart and appropriate any
portion of it which might be required for public uses.
4. The necessity of such recognition by the new government is
not dispensed with by the presumption raised by the fourteenth
section of the Act of March 3, 1851, of "a grant of land to a town
which was proved to have been in existence on the 7th of July,
1846."
5. The proceeding in the district court of the United States in
a California land case, on an appeal from the board of land
commissioners, is an original suit, and the whole case is open.
6. An appeal from a decree of the district court to the Supreme
Court in California land cases suspends the operation and effect of
the decree only when, by a judgment of the Supreme Court, the claim
of the confirmee in the premises in controversy may be
defeated.
7. In the execution of its treaty obligations with respect to
property claimed under Mexican laws, the government may, if it
please, act by legislation directly upon a claim preferred,
withdrawing it from further consideration of the courts under the
provisions of a general act. Accordingly, an act by which all the
right and title of the United States to the land within the
corporate limits of San Francisco confirmed to the city by a decree
of the circuit court, were relinquished and granted to that city,
and the claim of the city was confirmed, subject, however, to
the reservations and, exceptions designated in the decree, and upon
certain specified trusts, disposed of the city claim, and
determined the conditions upon which it should be recognized and
finally confirmed.
8. The decree of the board of land commissioners in California
land cases, or of the courts of the United States, where it becomes
final, takes effect by relation as of the day when the claim was
presented to the board of land commissioners.
9. According to the practice of the government, as recognized by
Congress, the President may reserve from sale and set apart for
public use parcels of land belonging to the United States. And he
may modify, by reducing or enlarging it, a reservation previously
made. That he has made the modification on a compromise of an
opposing private claim does not invalidate the reservation.
Page 73 U. S. 365
The plaintiff claimed as seized in fee under title from the City
of San Francisco. The defendant claimed possession as an officer of
the United States; setting up that the property was public property
of the United States reserved for military purposes.
The city's title was thus:
It seemed to be sufficiently plain, from historical evidences
and from adjudicated cases, that at the time of the conquest of
California by the United States, there was at the present site of
San Francisco a pueblo of some kind -- that is to say that there
was a settlement or collection of individuals there having an
ayuntamiento composed of alcaldes, regidores, and other municipal
officers. [
Footnote 1]
It seemed sufficiently plain also that there were general
Mexican laws governing the subject which authorized territory to an
extent not exceeding four square leagues to be marked out and
dedicated to the use of pueblos and of their inhabitants for
certain purposes.
What, however, was the precise nature of this pueblo at San
Francisco, or what the nature of its rights or of pueblo rights
generally in any four leagues, and by what lines these particular
four leagues were to be defined, was not so clear, nor at all
conceded, though it was asserted by the plaintiff that the four
leagues in immediate connection with San Francisco were to be
measured from the presidio of the old pueblo, the place occupied by
the garrison of the town, and hence were to be bounded of necessity
on three sides by waters of the ocean, the bay, and the Golden
Gate. And it was shown that a line drawn from water to water, east
and west, would segregate in the easiest manner the four leagues to
which, as successor of the former pueblo, the city was
entitled.
If such a line had ever been drawn, the tract now in controversy
would have been included within it. But there was no evidence that
any assignment of land had ever in any
Page 73 U. S. 366
way been made to the pueblo where San Francisco now stands under
the former government.
On the 3d of March, 1851, Congress passed the act to ascertain
and settle private land claims in California. This act, by its
eighth section, makes it the duty of every person having claims to
lands there to present them for investigation and the evidence in
support of them, to a board of commissioners, which was created by
the act. The fourteenth section declared, however, that the general
requirements of this eighth section should not extend to
"any town lot, farm lot or pasture lot held under any grant from
any corporation to which lands may have been granted for the
establishment of a town by the Spanish or Mexican government, or
the lawful authorities thereof, nor to any city, town, or village
lot, which city, town, or village, existed on the 7th day of July,
1846, but that the claim for the same shall be presented by the
corporate authorities of said town,"
and that
"the fact of the existence of the said city, town, or village,
on the said 7th of July, 1846, being duly proved, shall be
prima facie evidence of a grant to such corporation."
In July, 1852, the city presented to this board a claim for the
four leagues, praying a confirmation, and in December, 1854, the
board confirmed the claim to a portion of the land, in which
portion were embraced the premises now in controversy.
In June, 1855, in virtue of an ordinance known as the Van Ness
Ordinance, passed by the common council of the City of San
Francisco and subsequently, in 1868, ratified and confirmed by the
Legislature of California, whatever right the city had to the
premises in controversy, on the 1st January, 1855, passed to a
party under whom the plaintiff claimed.
Such was the plaintiff's case.
By the defendant's, it appeared that in November, 1850, the
President of the United States made, through the War Department and
in a usual way, an order that a certain parcel of land described by
him, situated on the Bay of San
Page 73 U. S. 367
Francisco, California, and which, it was said by one side here,
did, in point of fact, embrace the premises in controversy, and by
the other that it did not -- should be exempted from sale and
reserved for public purposes. A private claimant to this tract
proposing subsequently that certain other bounds should be
substituted, with the understanding that if this was agreed to by
the government, he would resign all pretensions to title within the
reservation, as fixed by the modified boundary proposed, the
President, in December, 1851, in compliance with a recommendation
to that effect from the Engineer Department, made in October, 1851,
modified and reduced the reservation, describing it more
particularly and in such a way as to divide the tract originally
reserved into two separate tracts, and, as it was said on one side
here, to include also, land not included in the original order. In
one of these tracts the premises in controversy were embraced.
The fact, therefore, that the President had reserved the tract
for the purposes of the federal government was one part of the
defendant's case. Another was this:
In stating the city's title, it has been said that the board of
land commissioners, in December, 1854, confirmed the claim of the
city to a part of the four leagues claimed by it as a pueblo, which
part included these premises. If the matter had stopped there, the
case of the plaintiff might have been free from question. But it
did not stop there. The sequel was thus:
In March, 1856, a transcript of the proceedings and decision of
the board was filed in the district court of the United States,
this operating under the statute of August 31, 1852, as an appeal
by the party against whom the decision was given. Both city and
United States in this case considered the decision as against them,
and both gave notice of their intention to appeal. The appeal of
the United States was, however, on notice of the Attorney General
and the stipulation of the district attorney, dismissed, and the
city alone prosecuted its appeal. While the appeal was thus pending
in the district court, Congress passed an
Page 73 U. S. 368
act [
Footnote 2] by virtue
of which the case became transferred to the circuit court of the
United States. That court, in May, 1865, confirmed the claim of the
city to the four leagues, excepting, among others, such parcels of
land as had been previously "reserved or dedicated to public uses
by the United States," meaning by this the tracts reserved as above
mentioned by the then President, Mr. Fillmore. From this decree of
the circuit court, the United States appealed to the Supreme Court
at Washington.
After the appeal taken (but previous to the trial in the present
case), Congress relinquished all right of the United States to land
situated within the City of San Francisco and confirmed to it by
the decree just mentioned to the city and confirmed the city's
claim, subject, however, to the reservations and exceptions
designated in that decree [
Footnote
3] and also subject to certain specified trusts. The appeal of
the United States to the Supreme Court was accordingly
dismissed.
On the trial of the present case, the plaintiff objected to the
admission of the evidence of the first reservation of the President
on account of its indefiniteness of description and because the
President could not make a reservation out of pueblo lands, and of
the second one, among other reasons, because it was the result of a
compromise between the government and an adverse claimant.
He objected also to the admission of the decree mentioned as
having been made in the circuit court, it being admitted on the
other side that an appeal was taken to it by the United States and
was still pending.
The objections were all overruled, and judgment having been
given for the defendant, the case was now here on error.
The case, it will be seen, involved essentially the question of
the nature of the title and ownership of lands held by Mexican
pueblos under the laws of Mexico in force in California
Page 73 U. S. 369
at the date of the conquest of that country, and to some extent
of the nature of a pueblo itself.
MR. JUSTICE FIELD delivered the opinion of the Court.
The premises for the possession of which this action is brought
are situated within the City of San Francisco, in the State of
California. The plaintiff claims to be seized in fee of them, and
derives his title from the City of San Francisco under an ordinance
of the common council for the settlement of land titles in the
city, passed on the 20th of June, 1855, commonly known as the Van
Ness ordinance, and the
Page 73 U. S. 370
act of the legislature of the state ratifying and confirming the
same.
The defendant is an officer in the army of the United States,
commanding the Military Department of California, and as such
officer entered upon the possession of the premises previous to the
commencement of this action, and has ever since held them under the
order of the Secretary of War as part of the public property of the
United States reserved for military purposes.
At the time the ordinance named was passed, the City of San
Francisco asserted title, as successor of a Mexican pueblo in
existence on the acquisition of the country, to four square leagues
of land, embracing the site of the present city, and had presented
her claim for the same to the board of land commissioners created
under the act of March 3, 1851, and the board had confirmed the
claim to a portion of the land, including the premises in question,
and rejected her claim for the residue. Dissatisfied with the
limitation of her claim, the city prosecuted an appeal from the
decision of the board to the United States district court, and this
appeal was then pending and undetermined. By the second section of
the ordinance the city relinquished and granted all the title and
claim, which she thus held to the land within her corporate limits,
as defined by the charter of 1851, with certain exceptions, to the
parties in the actual possession thereof, by themselves or tenants,
on or before the 1st of January, 1855, provided such possession was
continued up to the time of the introduction of the ordinance into
the common council, or if interrupted by an intruder or trespasser,
had been or might be recovered by legal process. In March, 1858,
the legislature of the state ratified and confirmed this ordinance.
The party through whom the plaintiff traces his title was in such
actual possession of the premises in controversy both at the time
designated by the ordinance and also on the passage of the
confirmatory act of the legislature, and therefore acquired
whatever right or title the city possessed, and he improved and
cultivated the premises and erected a building thereon, which was
occupied by the
Page 73 U. S. 371
plaintiff as his residence when he was ousted by the
defendant.
On the other hand, the authorities of the United States, at the
date of the ordinance and long previous to that date, claimed the
right to hold the premises as property of the United States and as
being a portion of a tract set apart for public purposes. As early
as the 5th of November, 1850, President Fillmore made an order that
certain parcels of land situated "on the Bay of San Francisco"
should be exempted and reserved from sale for such purposes. Notice
of this order was soon afterwards communicated to the Commissioner
of the General Land Office, and in June following was transmitted
by him to the Surveyor General of the United States for California,
in whose office it has ever since remained on file.
On the 31st of December, 1851, this order was modified by the
President in some particulars, and the first parcel reserved or
supposed to have been reserved by it was divided into two separate
tracts, each of which was described with precision. We do not deem
it, therefore, of any consequence whether the description of the
first parcel in the original order was defective and indefinite, as
contended by counsel, or whether or not it included the premises in
controversy. Nor is it of any consequence that the modification was
made, as asserted, to avoid a possible contest with an adverse
claimant to a portion of the original reservation. The reasons
which may have governed the President cannot affect the validity of
his action. He possessed the same authority in 1851 to modify the
reservation of 1850 by enlarging or reducing it that he possessed
to make the reservation in the first instance. It is sufficient, in
the view we take of this case, that one of the tracts described in
the last order embraces the premises in controversy.
The question presented for determination is therefore between
the title of the City of San Francisco as it existed on the 1st day
of January, 1855, and the title on that day of the United
States.
It must be conceded that there was a pueblo of some kind
Page 73 U. S. 372
at the site of the City of San Francisco upon the conquest of
the country by the United States on the 7th of July, 1846. We say a
pueblo
of some kind, for the term, which answers generally
to the English word "town," may designate a collection of
individuals residing at a particular place, a settlement or a
village, or may be applied to a regular organized municipality. The
historical evidence, to which we have been directed in the
argument, shows that there was a pueblo at that site under the
government of an ayuntamiento, composed of an alcalde, regidores,
and other officers, as early as 1835, and that it continued in
existence for some years under that government, and subsequently
until, and for some time after the conquest, under the government
of justices of the peace or alcaldes.
It must be conceded also that the pueblo which thus existed
possessed some claim, legal or equitable, to or some interest in
lands within the limits of four square leagues, to be assigned and
measured off from the northern portion of the peninsula upon which
the City of San Francisco is situated, and that the city has
succeeded to such claim or interest. This has been held by the
supreme court of the state after the most elaborate and extended
consideration. But what is of more consequence, and is conclusive
upon this Court, it has been so adjudged by the circuit court of
the United States, and that adjudication has been made final, as we
shall hereafter see, by the legislation of Congress and the
dismissal of the appeal to this Court which followed that
legislation.
By the laws of Mexico, which prevailed in California at the date
of the conquest, pueblos or towns, when once established and
officially recognized, were entitled, for their benefit and the
benefit of their inhabitants, to the use of lands embracing the
site of such pueblos or towns and of adjoining lands within certain
prescribed limits. This right, as we observed in
Townsend v.
Greeley, [
Footnote 4]
appears to have been common to the cities and towns of Spain from
an early period in her history, and was recognized in the laws and
ordinances
Page 73 U. S. 373
for the settlement and government of her colonies on this
continent. The same general system of laws for the establishment
and government of pueblos, and the assignment to them of lands that
prevailed under Spain, was continued in Mexico with but little
variation after her separation from the mother country. These laws
provided for the assignment to the pueblos, for their use and the
use of their inhabitants, of land not exceeding in extent four
square leagues. Such assignment was to be made by the public
authorities of the government upon the original establishment of
the pueblo, or afterwards upon the petition of its officers or
inhabitants, and the land was to be measured off in a square or
prolonged form, according to the nature and condition of the
country. All lands within the general limits stated, which had
previously become private property, or were required for public
purposes, were reserved and excepted from the assignment.
Until the lands were thus definitely assigned and measured off,
the right or claim of the pueblo was an imperfect one. It was a
right which the government might refuse to recognize at all, or
might recognize in a qualified form; it might be burdened with
conditions, and it might be restricted to less limits than the four
square leagues, which was the usual quantity assigned. Even after
the assignment, the interest acquired by the pueblo was far from
being an indefeasible estate such as is known to our laws. The
purposes to be accomplished by the creation of pueblos did not
require their possession of the fee. The interest, as we had
occasion to observe in the case already cited, amounted to little
more than a restricted and qualified right to alienate portions of
the land to its inhabitants for building or cultivation, and to use
the remainder for commons, for pasture lands, or as a source of
revenue, or for other public purposes. And this limited right of
disposition and use was in all particulars subject to the control
of the government of the country.
It is not pretended that any assignment of lands was ever made
to the pueblo of San Francisco under the former government. Her
claim or right to any lands, being therefore
Page 73 U. S. 374
an imperfect one, required the recognition and action of the new
government before it could be turned into an absolute and
indefeasible estate. Nor did it any the less require such
recognition and action by reason of the presumption raised by the
fourteenth section of the Act of March 3, 1851, of a grant of land
to a city, town, or village, which was proved to have been in
existence on the 7th of July, 1846. That section does not specify
the extent of the grant which, for the purpose of determining the
claim of the lot holders, and of the city, was to be presumed to
have been made; nor does it furnish any measure by which the limits
of such grant could be fixed. The claim of the city had therefore,
as the law then stood, to undergo judicial investigation before the
board of land commissioners created under the Act of March 3, 1851,
and to depend for its validity and extent upon the determination of
the board and of the tribunals of the United States to which it
could be carried. The authorities of the city so regarded the
claim, and by their direction it was presented to the board in
July, 1852. In December, 1854, the board confirmed the claim, as we
have already stated, to a portion of the four square leagues
embracing the premises in suit, and rejected it for the residue.
From the decision an appeal was taken by the filing of a transcript
of the proceedings and decision of the board with the clerk of the
district court. The appeal was by statute for the benefit of the
party against whom the decision was rendered, in this case of both
parties -- of the United States, which contested the entire claim,
and of the city, which asserted a claim to a greater quantity than
that confirmed -- and both parties gave notice of their intention
to prosecute the appeal. Subsequently, in February, 1857, the
Attorney General withdrew the appeal on the part of the United
States, and in March following, the district court, upon the
stipulation of the district attorney, ordered that appeal to be
dismissed and gave leave to the city to proceed upon the decree of
the board as upon a final decree. The counsel of the plaintiff
contend that this decree closed the controversy between the city
and the United States as to the lands to which the claim was
confirmed.
Page 73 U. S. 375
But in this view they are mistaken. Had the city accepted the
leave granted, withdrawn her appeal, and proceeded under the decree
as final, such result would have followed. But this course she
declined to take. She continued the appeal for the residue of her
claim to the four square leagues. This kept open the whole issue
with the United States. The proceeding in the district court,
though called in the statute an appeal, was not in fact such. It
was essentially an original suit in which new evidence was given
and in which the entire case was open. That this was the character
of the proceeding in the district court follows from the decision
in the case of
United States v. Ritchie. [
Footnote 5] In that case it was contended
that the act of Congress, in prescribing an appeal from the board
of commissioners to the district court, was unconstitutional, as
the board was not a court under the Constitution and could not be
invested with any portion of the judicial power conferred upon the
general government; but this Court -- MR. JUSTICE NELSON delivering
the opinion -- held that the suit was to be regarded as an original
proceeding, and that the removal of the transcript papers and
evidence into it from the board of commissioners was the mode
provided for its institution in that court.
"The transfer, it is true," said the Court,
"is called an appeal. We must not, however, be misled by a name,
but look to the substance and intent of the proceeding. The
district court is not confined to a mere reexamination of the case
as heard and decided by the board of commissioners, but hears the
case
de novo upon the papers and testimony which had been
used before the board, they being made evidence in the district
court, and also upon such further evidence as either party may see
fit to produce."
The dismissal of the appeal on the part of the United States did
not, therefore, preclude the government from the introduction of
new evidence in the district court, or bind it to the terms of the
original decree.
The authorities cited by counsel to show that when only
Page 73 U. S. 376
one party appeals from a decree in a California land case, the
other party cannot urge objections to the decree or insist upon its
modification have no application. They are adjudications made in
cases of appeal from the district court to the Supreme Court, where
the case is heard on the record from the court below, and where
error upon the record alleged by the appellant is alone considered,
or in cases where an attempt has been made upon supplementary
proceedings on a survey of the land confirmed to deviate from the
terms of the original decree. Thus, in
Malarin v. United
States, [
Footnote 6] the
district court had affirmed the validity of the grant to the
claimant, but had limited it to one square league. The claimant
insisted that he was entitled under the grant to a confirmation of
two square leagues, and therefore prosecuted an appeal. The United
States was satisfied with the decree and did not appeal. The case
therefore necessarily stood in this Court upon the simple question
whether the confirmation should have been for one or for two
leagues, and the Court said that as the government had declined to
appeal, the validity of the grant was not open for consideration.
There is no analogy between this case and the so-called appeal from
the board of commissioners to the district court, which is only a
mode, as we have said, for the institution of a new suit in that
court.
In the case of
United States v. Halleck, [
Footnote 7] the decree of the board of
commissioner described the land confirmed by specific boundaries.
This decree became final by the withdrawal by the United States of
the appeal taken on its behalf. But in the survey of the land an
attempt was made to change the meaning of the language of the
decree by showing that the commissioners were ignorant of the
course and direction of the American River, one of the boundaries
prescribed, and therefore intended different lines from those
specifically declared. To this the Court said that the decree was a
finality not only on the question of title, but as to the
boundaries which it specified; that if it were erroneous in
Page 73 U. S. 377
either particular the remedy was by appeal, but that the appeal
having been withdrawn by the government, the question of its
correctness was forever closed. In other words, the Court held that
a decree which had become final, could not be disregarded or
deviated from in the subsequent proceedings taken for its
execution. Between the doctrine here asserted and the doctrine
contended for by the counsel of the plaintiff there is no
analogy.
The case of the city remained in the district court on her
appeal until 1864. On the 1st of July of that year, Congress passed
an act "to expedite the settlement of titles to land in the State
of California." By the fourth section of this act, the district
courts of California were authorized to transfer cases for the
determination of claims to land under the Act of March 3, 1851,
pending before them on appeal to the circuit court of the United
States when they affected the titles of lands within the corporate
limits of any city or town. Under this act, the district court, in
September following, transferred the city case to the circuit
court, and in October that court confirmed the claim of the city to
four square leagues, subject to certain exceptions, among which
were all such parcels of land as had been previously "reserved or
dedicated to public uses by the United States." The decree upon
this adjudication was finally settled and entered on the 18th of
May, 1865. An appeal from it was taken by the United States to the
Supreme Court, and the pendency of this appeal was made the ground
of objection to the admissibility of the decree when it was offered
in evidence. The appeal, it was contended, suspended the operation
of the decree and took from it all efficacy as evidence of title.
Such undoubtedly is the general effect of an appeal in these land
cases -- that is to say the decrees rendered by the district court
cannot support the title of the confirmees or of parties claiming
under them pending appeals therefrom when by the judgment of the
appellate court the claims of the confirmees in the premises in
controversy may be defeated. But in this case, no such result could
have followed from any judgment of the Supreme Court. The
objection
Page 73 U. S. 378
of the plaintiff was prompted by the fact that the defendant
contended, and, as we shall show, contended correctly, that the
lands reserved by the decree from the confirmation to the city
included the premises in controversy. Assuming that to have been
the fact, the judgment of the Supreme Court could not have affected
in any respect the title of the plaintiff. That court would have
heard the case upon the record, and if it had not affirmed the
decree, would have reversed it, or have modified it only in the
particulars in which error was alleged by the appellant. A judgment
in favor of the United States could only have had the effect either
of defeating the entire claim of the city or of restricting its
extent in a still greater degree; it could not have removed the
exception made in it of the lands reserved for public uses.
But there is another and conclusive answer to the objection to
the admissibility of the decree. By the action of Congress, it had
become, with some modifications, final. On the 8th of March, 1866,
which was previous to the trial of this action, Congress passed an
act "to quiet the title to certain lands within the corporate
limits of the City of San Francisco." [
Footnote 8] By this act, all the right and title of the
United States to the land situated within the corporate limits of
San Francisco, confirmed to the city by the decree of the circuit
court, were relinquished and granted to the city, and the claim of
the city was confirmed, subject, however, to the reservations and
exceptions designated in the decree, and upon the trust that all
the land not previously granted to the city should be disposed of
and conveyed by the city to parties in the
bona fide
actual possession thereof, by themselves or tenants, on the passage
of the act, in such quantities and upon such terms and conditions
as the Legislature of the State of California might prescribe,
except such parcels thereof as might be reserved and set apart by
ordinance of the city for public uses.
By this act, the government has expressed its precise will with
respect to the claim of the City of San Francisco to her
Page 73 U. S. 379
lands, as it was then recognized by the circuit court of the
United States. In the execution of its treaty obligations with
respect to property claimed under Mexican laws, the government may
adopt such modes of procedure as it may deem expedient. It may act
by legislation directly upon the claims preferred, or it may
provide a special board for their determination, or it may require
their submission to the ordinary tribunals. It is the sole judge of
the propriety of the mode, and having the plenary power of
confirmation it may annex any conditions to the confirmation of a
claim resting upon an imperfect right which it may choose. It may
declare the action of the special board final; it may make it
subject to appeal; it may require the appeal to go through one or
more courts, and it may arrest the action of board or courts at any
stage.
The Act of March 3, 1851, is a general act applying to all
cases, but the Act of March 8, 1866, referring specially to the
confirmation of the claim to lands in San Francisco, withdrew that
claim, as it then stood, from further consideration of the courts
under the provisions of the general act. It disposed of the city
claim and determined the conditions upon which it should be
recognized and confirmed. The title of the city therefore rests
upon the decree of the circuit court as modified by the act of
Congress. The subsequent dismissal of the appeal, referred to in
the case of
Townsend v. Greeley, [
Footnote 9] though made upon consent of parties,
necessarily followed.
The decree thus modified excepts from confirmation to the city,
as we have already observed, such parcels of land as had been
previously "reserved or dedicated to public uses by the United
States." By the parcels thus named, reference is had to the tracts
reserved by the orders of President Fillmore. One of these tracts,
as we have said, contains the premises in controversy. The decree
therefore settles the title to them against the plaintiff. Whoever
obtained conveyances from the city or asserted title under the
Page 73 U. S. 380
Van Ness ordinance, whilst the claim of the city to the land
thus conveyed, or to which title was thus asserted, was pending
before the tribunals of the United States, necessarily took
whatever they acquired subject to the final determination of the
claim. Their title stood or fell with the claim, for the decree
took effect by relation as of the day when the petition of the city
was presented to the board of land commissioners. It is to be
treated in legal effect as if entered on that day. [
Footnote 10]
It only remains to notice the objection taken to the authority
of the President to make the reservations in question. The
objection is twofold -- first, that the lands reserved did not
constitute any part of the public domain, but were the property of
the city, and were not therefore the subject of appropriation, by
order of the President, for public purposes, and second, if they
did constitute a part of the public domain, they could only be
reserved from sale and set apart for public purposes under the
direct sanction of an act of Congress.
The first objection has been sufficiently answered in
considering the nature of the claim of the city. It was not a claim
to a tract which had been specifically defined; it was a claim only
to a specific quantity, embracing, it is true, the site of the
pueblo and adjoining lands, but which had yet to receive its
precise limits and bounds from the officers of the government.
Until this was done, the government was not precluded from setting
apart and appropriating any portions of the lands claimed which
might be necessary for public uses. Until then, the claim of the
city was subservient to the right of the government in this
respect.
On the other hand, if the lands were at the time a part of the
public domain, as they must be considered to be because they have
been excluded from the lands confirmed to the city in satisfaction
of the claim, it is of no consequence to the plaintiff whether or
not the President possessed sufficient authority to make the
reservations in question. It is enough
Page 73 U. S. 381
that the title had not passed to the plaintiff, but remained in
the United States. But further than this, from an early period in
the history of the government it has been the practice of the
President to order from time to time, as the exigencies of the
public service required, parcels of land belonging to the United
States to be reserved from sale and set apart for public uses.
The authority of the President in this respect is recognized in
numerous acts of Congress. Thus, in the Preemption Act of May 29,
1830, it is provided that the right of preemption contemplated by
the act shall not
"extend to any land which is reserved from sale by act of
Congress, or
by order of the President, or which may have
been appropriated for any purpose whatever. [
Footnote 11]"
Again, in the Preemption Act of September 4, 1841,
"Lands included in any reservation by any treaty, law,
or
proclamation of the President of the United States, or
reserved for salines or for other purposes,"
are exempted from entry under the act. [
Footnote 12] So, by the Act of March 3, 1853,
providing for the survey of the public lands in California and
extending the preemption system to them, it is declared that all
public lands in that state shall be subject to preemption, and
offered at public sale, with certain specific exceptions, and among
others "of lands appropriated under the authority of this act, or
reserved by competent authority." [
Footnote 13] The provisions in the acts of 1830
and 1841 show very clearly that by "competent authority" is meant
the authority of the President and officers acting under his
direction. [
Footnote 14]
The action of the President in making the reservations in
question was indirectly approved by the legislation of Congress in
appropriating moneys for the construction of fortifications and
other public works upon them. The reservations made at the same
time embraced seven distinct tracts of land, and upon several of
them extensive and costly fortifications and barracks and other
public buildings have been erected.
Page 73 U. S. 382
But it is sufficient, as we have already said, that the lands
remained the property of the United States, whether or not they
were by sufficient authority appropriated to public uses.
Judgment affirmed.
[
Footnote 1]
See Dwinelle's Colonial History of the City of San
Francisco;
Hart v. Burnett, 15 Cal. 540, where the general
character of the documentary evidence of the existence of the
pueblo, and of the rights it possessed, is set forth and
considered.
[
Footnote 2]
Act of 1 July, 1864; 13 Stat. at Large 332.
[
Footnote 3]
Act of March 8, 1866; 14 Stat. at Large 4.
[
Footnote 4]
72 U. S. 5
Wall. 336.
[
Footnote 5]
58 U. S. 17
How. 533.
[
Footnote 6]
68 U. S. 1 Wall.
282.
[
Footnote 7]
68 U. S. 1 Wall.
439.
[
Footnote 8]
Statutes of 1865-1866, p. 4.
[
Footnote 9]
72 U. S. 5 Wall.
337.
[
Footnote 10]
Landes v.
Brant, 10 How. 373.
[
Footnote 11]
4 Stat. at Large 421.
[
Footnote 12]
5
id. 456.
[
Footnote 13]
10
id. 246.
[
Footnote 14]
Wolcott v. Des Moines
Co., 5 Wall. 688.
