Summary
In Doll v. Meador (16 Cal. 322), it was held by this Court that the Act of Congress of May 23d, 1844, " extends the pre-emptive right or privilege to town lands."
Summary of this case from Alemany v. City of PetalumaOpinion
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Appeal from the Fifteenth District.
This was an action of ejectment, to recover possession of a lot in the town of Red Bluff, in Tehama county, based upon a title vested in the plaintiff by virtue of the following patent:
United States of America, State of California.
" To all whom these presents shall come, Greeting:
" Whereas, under the provisions of an Act of Congress of the United States, entitled 'An act to appropriate the Proceeds of the Sales of the Public Lands, and to Grant Preemption Rights,' approved September 4th, 1841, 500,000 acres of the public lands were granted to the State of California;
" And whereas, the Legislature of the State of California provided for the selection and location of the 500,000 acres of land, under and in pursuance of said act of Congress, by the following Acts of the Legislature, to wit:
" An act entitled 'An Act to provide for the Disposal of the 500,000 Acres of Land granted to this State by Act of Congress, that the People of the State of California may avail themselves of the benefit of the eighth section of the Act of Congress, approved April 4th, 1841, chapter sixteen, entitled an Act to Appropriate the Proceeds of the Sales of the Public Lands, and to grant Preemption Rights, the following provisions are hereby enacted; ' approved May 3d, 1852; and also an act entitled 'An Act Authorizing the Location and Patenting of School Lands,' approved April 30th, 1857; also an act entitled 'An Act to provide for the Location and Sale of the unsold portion of the 500,000 Acres of Land donated to the State for School Purposes, and the seventy-two sections donated to the State for the use of a Seminary of Learning,' approved April 23d, 1858.
" And whereas, the Legislature of the State of California passed an act entitled 'An Act to provide for the Issuance of Patents of Lands located with State School Land Warrants, and for Lands purchased under the Act of April 23d, 1858,' approved April 16th, 1859.
" And whereas, it appears by the certificate of the Register of the State Land Office No. 1, issued in accordance with the provisions of said last named act, bearing date the fourth day of June, 1859, that the tracts of land hereinafter described have been duly and properly located, in accordance with the provisions of the said laws of this State; and that J. Granville Doll is entitled to receive a patent therefor.
" Now, therefore, the State of California hereby grants to the said J. Granville Doll, and to his heirs and assigns forever, the said tracts of land, located as aforesaid, and which are known and described as follows, to wit:
" The east half of the south-east quarter of section nineteen and the fractional south-west quarter of section twenty, and the north half of the north-west quarter of section twenty-nine, in township twenty-seven north, range three, west of Monte Diablo, meridian, containing two hundred and ninety-six and seventy-seven one-hundredths acres, taken in lieu of three hundred and twenty acres; together with all the privileges and appurtenances thereunto appertaining and belonging.
" To have and to hold the afore-granted premises to the said J. Granville Doll, and to his heirs and assigns, to his and their use and behoof forever.
" In testimony whereof, I, John B. Weller, Governor of of the State of California, have caused these letters to be made patent, and the seal of the State of California to be hereunto affixed.
" Given under my hand, at the city of Sacramento, this twenty-second day of June, in the year of our Lord 1859.
[L. S.]
" John B. Weller,
" Governor of State.
" Attest; Ferris Forman, Secretary of State.
" Countersigned: H. A. Higby, Register of State Land Office.
" Recorded, June 27th, 1859."
The plaintiff then proved that the land in controversy was within the calls of the patent, and the possession of defendant Meador, and the value of the use and occupation of the land. This was all the testimony introduced by plaintiff.
Defendant proposed to the Court to prove as follows:
That the lot and parcel of land in the complaint described, is situate within the limits of the town of Red Bluff, in the county of Tehama, and State of California, and constitutes a part of the town site thereof;
That said town site was selected in the month of June, 1850, and surveyed and plotted into lots and blocks, and then actually settled upon and occupied as a town site by sundry inhabitants of the United States and of this State, for the purposes of trade, and not agriculture, and has been thence hitherto and continuously, and still is so settled upon and occupied;
That the tract of land whereon is situate the town of Red Bluff was, and every part thereof, at the date of such selection and settlement for a town, a part and parcel of the unsurveyed public lands of the United States;
That among said inhabitants, so settled upon and occupying said lands embraced by said town site, are defendants, who, by themselves and others, through whom they claim and derive possession, have occupied and peaceably enjoyed and continuously possessed the tract and parcel of land in complaint described, for purposes of residence and trade, and not agriculture, from the date of the aforesaid selection and settlement of said town to the present time;
That prior to, and on the third day of June, 1853, there were settled upon said town site of Red Bluff, embracing the tract or parcel of land in the complaint described, and in the actual occupancy of the same, for the purposes of trade, not agriculture, about fifty inhabitants, having and using at and on said town site, as many as three stores, three public houses, three mechanic shops; also, some private residences and other buildings, usual in towns;
That said town site, at the date last aforesaid, and now is, situate on the west bank of the Sacramento river, and at the head of practical navigation of the same by steamboats and other water-craft, used for the transportation of merchandise and passengers, and then was, and now is, frequented, for the purposes of trade and transportation, by steamboats, stages, large pack-trains, and other means used for the transportation of merchandise to and from said place;
That on, or before the thirty-first day of March, 1855, there were residing upon, and doing business at said town site of Red Bluff, including and embracing the lot and parcel of land in complaint described, as many as two hundred and fifty inhabitants, owning, using and occupying thereon numerous private residences, stores, warehouses, hotels, mechanic shops, saloons, restaurants and other edifices usual in towns, occupied for the purposes of trade and not agriculture;
That at the date or dates of the location of the said town site of Red Bluff, and every part thereof, of any and all school land warrants thereon, or entries of the same in the way of purchase from the State of California by plaintiff, and patents issued thereon, from and through the said State of California, the same condition of things, as to residence upon and occupation thereof--for purposes of trade and not agriculture--then continued to exist on and at said town site of Red Bluff, as last stated, with a large increase of inhabitants, places of trade, houses and business transacted thereat.
The Court held the testimony offered to be incompetent and irrelevant; to which defendants excepted. Thereupon, defendants offered in evidence a certified copy of the town-ship plot of the United States survey of the land, embracing the legal subdivision of public lands, whereon stands the town site of Red Bluff. Said plot shows a town called Red Bluff, is signed by the United States Surveyor-General for California, and is dated March 31st, 1855.
The defendants next offered to prove by a " duly certified official document," that the survey offered and rejected was approved on the thirty-first of March, 1855. This was ruled out by the Court, to which defendants excepted.
The defendants then offered to show by competent proof, that there was in the custody, and on file in the office of the Register and Receiver of the Land Office of the United States of the Marysville Land District, a duly certified copy from the office of the Surveyor-Generalof the United States for the State of California, of the same official township plot as shown by the rejected survey, at the date of the alleged location, by the State locating agent, of the land warrant, referred to in the patent of twenty-second of June, 1859, through which the plaintiff claims the lot and parcel of land in question.
This the Court excluded, and defendants took exception.
The defendants thereupon offered to prove, by competent evidence, that at no time heretofore have the United States, through any of their official authorities, by law thereto, authorized, ever issued to the State of California a patent for the legal subdivisions of the land embracing said town site of Red Bluff, and including the lot or parcel of land in the complaint described, or any part thereof; nor has the Commissioner of the General Land Office of the United States, or any other officer, by law authorized so to do, ever certified to the State of California, or to any of its agents or otherwise, any list or lists of land embracing and containing the legal subdivisions whereon the town site of Red Bluff is situate; or expressed approval of any alleged action of the State of California, had or done, whether through its Legislature or otherwise, in the selection of the said legal subdivision of land, or any part thereof, for the use and benefit of said State or its grantees, under any law or laws whatsoever.
To which offer to prove said facts plaintiff made no objection; whereupon, defendants called a witness, and asked him the following question: " State whether or not you have made any examination in the State Land Office of the State of California, or any inquiry of the officers having the custody thereof, and also in the Land Office of the United States, at Marysville, and of the officers having the custody of the archives of said offices; and also in the office of the Surveyor-General of the United States for the State of California, and of the proper officer having the custody of the archives thereof, to ascertain whether any patent from the United States to the State of California, or certified list made by the Commissioner of the General Land Office, has ever issued or been received, embracing the legal subdivisions of public land whereon is situate the town of Red Bluff; and if you have made such inquiry and search at those places, or either of them, state with what result."
This question was objected to as an improper method of proving said facts, and that the evidence offered was incompetent for such purpose. This objection was sustained by the Court, and defendants excepted. Defendants then offered to prove by competent testimony, that they, by themselves, and those under whom they entered upon the premises in question, have always held and occupied the same and every part thereof, under a claim of right thereto, derived under the law of Congress of the United States, approved Sept. 4th, 1841; and also, the further act of the Congress of the United States, approved May 23d, 1844, as well as other laws of the United States.
This was also ruled out by the Court, under the exception of defendants.
Judgment was rendered for the plaintiff. Defendants moved for a new trial, which being denied, they appealed to this Court.
On the argument in this Court, counsel for plaintiff and respondent procured leave to file the proclamation of the President, dated June 30th, 1858, ordering the tract of land described in plaintiff's patent, as well as the lands surrounding it, to be offered for sale on the fourteenth day of February, 1859.
The following are the laws of Congress, and sections thereof, which have application to this case, and for convenient reference are herewith given:
" Act of Congress, September 4th, 1841, 'To Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Preemption Rights.'
" Sec. 8. And be it further enacted, That there shall be granted to each State specified in the first section of this act, 500,000 acres of land, for purposes of internal improvement: Provided, that to each of the said States, which has already received grants for said purposes, there is hereby granted no more than a quantity of land which shall together with the amount such State has already received, as aforesaid, make 500,000 acres; the selections in all of the said States to be made within their limits, respectively, in such manner as the Legislatures thereof shall direct, and located in parcels conformably to sectional divisions and subdivisions, of not less than three hundred and twenty acres in any one location, on any public land, except such as is, or may be reserved from sale by any law of Congress, or proclamation of the President of the United States; which said locations may be made at any time after the lands of the United States, in said States, respectively, shall have been surveyed according to existing laws. And there shall be, and hereby is, granted to each new State that shall be hereafter admitted into the Union, upon such admission, so much land as, including such quantity as may have been granted to such State before its admission, and while under a Territorial Government, for purposes of internal improvement, as aforesaid, shall make 500,000 acres of land, to be selected and located as aforesaid.
" Sec. 10. And be it further enacted, That from and after the passage of this act, every person being the head of a family, a widow, or single man, over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration of intention to become a citizen, as required by the Naturalization Laws, who, since the first day of June, A. D. 1840, has made, or shall hereafter make, a settlement in person on the public lands to which the Indian title had been, at the time of such settlement extinguished, and which has been, or shall have been surveyed prior thereto, and who shall inhabit and improve the same, and who has or shall erect a dwelling thereon, shall be and is hereby authorized to enter with the Register of the Land Office for the district in which such land may lie, by legal subdivisions, any number of acres, not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land, subject, however, to the following limitations and exceptions: No person shall be entitled to more than one preemptive right by virtue of this act; no person who is the proprietor of three hundred and twenty acres of land in any State or Territory of the United States, and no person who shall quit or abandon his residence on his own land to reside on the public land in the same State or Territory, shall acquire any right of preemption under this act; no 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; no lands reserved for the support of schools, nor the lands acquired by either of the two last treaties with the Miami tribe of Indians in the State of Indiana, or which may be acquired of the Wyandottribe of Indians in the State of Ohio, or other Indian reservation to which the title has been, or may be extinguished by the United States, at any time during the operation of this act; no sections of land reserved to the United States, alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement; no sections, or fractions of sections, included within the limits of any incorporated town; no portions of the public lands which have been selected as the site for a city or town; no parcel or lot of land actually settled and occupied for the purposes of trade, not agriculture; and no lands on which are situated any known salines, or mines, shall be liable to entry under and by virtue of the provisions of this act. And so much of the proviso of the act of twenty-second of June, 1838, or any order of the President of the United States, as directs certain reservations to be made in favor of certain claims under the treaty of Dancing Rabbit Creek, be, and the same is hereby repealed: Provided, that such repeal shall not effect any title to any tract of land secured in virtue of said treaty.
" Sec. 14. And be it further enacted, That this act shall not delay the sale of any of the public lands of the United States beyond the time which has been, or may be, appointed by the proclamation of the President; nor shall the provisions of this act be available to any person or persons who shall fail to make the proof and payment, and file the affidavit required, before the day appointed for the commencement of the sales aforesaid."
" An Act for the Relief of the Citizens of Towns upon the Lands of the United States, under certain circumstances.
" Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever any portion of the surveyed public lands has been, or shall be settled upon and occupied as a town site, and, therefore, not subject to entry under the existing preemption laws, it shall be lawful in case such town or place shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the Judges of the County Court for the county in which such town may be situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust, for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same is situated: Provided, that the entry of the land intended by this act be made prior to the commencement of the public sale of the body of land in which it is included, and that the entry shall include only such land as is actually occupied by the town, and be made in conformity to the legal subdivisions of the public lands authorized by the Act of twenty-fourth of April, one thousand eight hundred and twenty, and shall not in the whole exceed three hundred and twenty acres; And provided, also, that any act of said trustees, not made in conformity to the rules and regulations herein alluded to, shall be void and of none effect: And provided, also, that the corporate authorities of the town of Weston, in the county of Platte, State of Missouri, or the County Court of Platte county in said State, shall be allowed twelve months from and after the passage of this act, to enter at the proper land office the lands upon which said town is situate.
" Act of March 3d, 1853, 'Providing for the Survey of the Public Lands in California, the Granting of Preemption Rights therein, and for other purposes.'
" Sec. 8. And be it further enacted, That the public lands, not being mineral lands, occupied as towns or villages, shall not be subdivided, or subject to sale, or to be appropriated by settlers under the provisions of this act, but the whole of such lands, whether settled upon before or after the survey of the same, shall be subject to the provisions of the act entitled 'An Act for the Relief of the Citizens of Towns upon the Lands of the United States, under certain circumstances,' approved May 23d, 1844; except such towns as are located on or near mineral lands, the inhabitants of which shall have the right of occupation and cultivation only until such time as Congress shall dispose of the same; nor shall any lands specially reserved for public uses be appropriated under the provisions of this act."
Judgment affirmed.
COUNSEL
I. The location of the school warrant and the patent issued to plaintiff gave him notitle, inasmuch as town sites were reserved from entry and sale by the laws of Congress. (Chotard v. Pope, 12 Wheat. 655; Jackson v. Wilcox, 13 Peters, 498; Gear v. United States, 3 How. 121; Preemption Law of September 4th, 1841; Act of May 23d, 1844; Act of March 3d, 1853.)
II. A State location made before survey by the United States authorities is void. The eighth section of the Act of 1841 requires locations made to be comformable to the United States sectional divisions and subdivisions; and, therefore, before these divisions are marked out by survey there can be no locations made that conform to these lines.
III. The eighth section of the Act of 1841 gave the State no present title upon her admission in the Union. (Foley v. Harrison, 15 How. 433 .)
IV. The defendants being in possession can defend that possession by showing that the patent issued for lands reserved from sale. (Polk's Lessee v. Wendel, 9 Cranch. 87; Patterson v. Winn, 11 Wheat. 380; Stoddard v. Chambers, 2 How. 284; Summers v. Dickinson, 9 Cal. 554; Bird v. Lisbros, Id. 1.)
I. Upon the admission of California intothe Union, under the eighth section of the Act of 1841, she acquired a present and vested interest in 500,000 acres of land, over the location of which the legislative power of the State is, and was, plenary and exclusive, only circumscribed and declared non-applicable to lands reserved from sale by law, or the proclamation of the President.
1. Unlike the majority of Federal grants or concessions, the right of survey and location is not reserved, but that right, privilege or power passed with the grant and vested in the political authorities of California. Operative Congressional grants, that dispense with further action on the part of the United States authorities, are not new things in either Federal or State jurisprudence. (Chouteau v. Eckhart, 2 How. 344 .)
On the eighth of August, 1846, Congress passed a law commencing thus:
" That there be, and hereby is, granted to the State of Wisconsin, on the admission of such State into the Union, for the purpose of improving the navigation of the Fox and Wisconsin rivers, in the Territory of Wisconsin, and of constructing the canal to unite said rivers at or near the portage, a quantity of land equal to one-half of threesections in width, on each side of the said Fox river, and the lakes through which it passes, from its mouth to the point where the portage canal shall enter the same, and on each side of said canal, from one stream to the other, reserving the alternate sections to the United States; to be selected under the directions of the Governor of the State, and such selection to be approved by the President of the United States."
Construing this act, the Supreme Court of Wisconsin, in the case of Veeder v. Guppy (3 Wis. 502 ), said:
" At the time of the passage of the act, (referring to a State law) none of the lands had been selected by the Governor and approved by the President, but the title of the State was as complete as it ever has been, to the certain quantity of land granted. No further act of the United States was necessary, nor was any other act ever done or performed to vest the fee in the State. The selection by the Governor, and the approval by the President, were acts of partition only, not of conveyance. They tended in no degree to enlarge the scope of or confirm the grant. The State being the owner of the land, had a right to prescribe such rules, terms and conditionsto the disposal of the lands granted, not inconsistent with the terms of the grant, as it should deem proper. If the United States could convey a perfect title, the State could take it--the title in the State is as full and complete as that of any other sovereign landholder. The grant took effect. potentially, on the admission of the State into the Union, on the twenty-ninth day of May, 1848." (Fremont's case, 17 How. 667; United States v. Minnesota &. N. U. R. R. Co. Id. 1; Foley v. Harrison, 15 Id. 589.)
2. The provision in the eighth section of the Act of 1841, prescribing that the State locations should be made after the surveys were completed under existing laws, has no bearing upon the point under discussion, as the object and intent thereof were merely to secure locations according to the United States legal subdivisions, and preserve intact the Federal regulations concerning the same. As the location of plaintiff, in this particular, was in exact conformity with the United States subdivisions, as the patent upon its face shows, this provision is fully satisfied.
And again: When the estate of California vested on the seventh of September, 1850, no provision was made for surveys. No law having such an object was in existence; and therefore, to California the restriction did not apply.
3. Our location, the record shows, does conform to the United States sectional divisions and subdivisions. In the words of the eighth section of the Act of 1841, we can say that our land is located in parcels conformably to the sectional divisions and subdivisions. The State, it is true, acts at her peril before the surveys, but, if the surveys, when made, prove the State's location was correct, the injunction of the grant, the grant itself, and the reason thereof, are satisfied.
There is nothing magical in a survey. The general preemption law, passed in 1853, authorized preemptions on unsurveyed lands, but provided that, when surveys were made, preemptioners should make their locations correspond with United States divisions. It is absurd to say that the existence of the public surveys gave the State a right of selection.
II. The fourth section of the State Act of April 16th, 1859, is constitutional, and, therefore, the patent issued thereunder, vested in Doll a good and valid title in fee simple. (Edwards v. Pope, Scam. 465.)
1. It is sufficient to support the validity of the fourth section, to say, that the State of California, by virtue of her right to determine a question of title between two adverse private claimants or proprietors, did not undertake to do so by legislative fiat or bull but constituted a tribunal, gave it a jurisdiction, provided for notice of trial, insured adverse claimants a standing and a day in court, made proof of certain matters, consistent with the federal regulations, necessary to success, and a failure thereof fatal to the claimant, threw around the proceeding--" ex abundantia cautela ," all the safeguards necessary to the proper determination of the question.
The question in this case was, whether the State of California's general right to have three hundred and twenty acres of land for the respondent, had particularly attached to the premises in controversy.
That issue was heard by the State Register, and decided in favor of Doll, and, of course, against all adverse claimants. The result of his determination, or sentence, was the patent, which, under the fourth section, operates as an absolute vestiture of the fee.
2. The legislation of California, in respect to the disposal of the 500,000 acres of land granted to her, has been perfectly " consistent with the laws of Congress, federal rules and regulations, and in no particular does it conflict therewith.
Evidence that the land was not subject to Doll's location, would have obliged the State Register to reject his application. Nay further: respondent was obliged to bring his application, by evidence, within the various provisions of the State laws, to prove himself entitled to the benefits of the fourth section of the Act of 1859.
The act did not contemplate this proceeding to be null and void, or intend that the facts upon which the plaintiff issued should be reviewed. It was to avoid such a result that the fourth section was enacted, and the wisdom of it is made apparent by the character of this controversy.
Like a decree of a court of competent jurisdiction, this patent binds the interest of all private parties. (3 Story, 742.)
To overthrow the fourth section, declare it void and inoperative, would seriously impair the land policy of the State, now quite comprehensive, and under which rights of great magnitude have grown up--throw a firebrand into the only class of titles regarded as secure, and virtually destroy them.
III The patent in this case, being valid upon its face, entitled Doll to the judgment which he obtained in the District Court. (Sedgw. on Construction, 451; Bledsoe v. Wall, 4 Bibb, 328; 1 Munf. 134; Cooper v. Roberts, 18 How. 173; People v. Manrow, 5 Denio, 389; Field v. Seabury, 19 How; 323; Parmelee v. Oswego R. R. Co. 6 Barb. 599.)
It will be seen that the theory of the office of a patent is, that it shall represent quoad the land mentioned in it, the full power of the sovereign whose act (if valid upon its face) remains so until vacated at the instance of the power which gave it birth. To this general principle some of the cases indicate a modification, by recognizing in a Court of Equity and sometimes in a Court of Law, a right in a third person superior to that of the holder of the patent, which, if established by trial, the Court of Equity, according to its principles, will not, by its decree, annul the patent, but order the patentee to convey the land therein described to the party, who, of right, is entitled to the benefit of the patent, and to whom it should have been issued. A Court of Law merely declares the title of the defendant superior to that of the holder of the patent. The authorities show cases supporting these propositions. First, " that a patent cannot be assailed, either directly or collaterally--by either the sovereign who issued it, or private persons--without the law under which it issued, or the patent itself, reserved the right of impeachment, or without its invalidity is shown upon its face." Second, that in a Court of Equity, the Government may, for good cause, procure its vacation. Third, that in a Court of Equity, a person holding a right to the land described in the patent superior to that of the patentee, may procure a decree investing himself with the title of the patentee. Fourth, in suits at law, persons holding a substantial title from the common scource thereof, superior to that of the patentee, may defeat his recovery. Fifth, where the defendant is without title, he has no standing in court, and cannot question the action of the Government, or resist the patent.
IV. The land was not reserved from sale as a town site, nor from the general right of selection in California, vested under the eighth section of the Act of1841.
1. There is a decided difference between a reservation of land for Government purposes, and a reservation of a town site. The former, while occupied or not abandoned, is a complete reservation--a dedication which cannot be disturbed by the entries of third persons, or be wrested from the use intended by the government. This is determined by the case of Wilcox v. Jackson (13 Pet. 498).
The latter is a contingent reservation, to become absolute when the town authorities, in the manner prescribed by the law of May 23d, 1844, enter and pay for the land which constitutes the town site.
A special limit is fixed, within which the right must be exercised--that is, before the commencement of the land sale--that period passing, the right to enter the land is lost to the town authorities, gone forever--and with it, the reservation. This municipal preemption law guarantees to the inhabitants of towns a right of entry before the lands have been offered for sale. It is easy to see that the reservation is for one purpose, and but one--to make town authorities preferred preemptioners, upon the condition that they accept the privilege before the land around the townsite is sold. The act that creates the privilege, fixes a period for its determination, after which the land is subject to entry by the State, or sale, as part of the public domain. (Opinion of Attorney General Gilpin, of July 25th, 1840; U. S. v. R. R. Bridge Co. 6 McLean Reports.)
2. The time for their entry passing, town sites are no longer contingent reservations; no longer subject to the Act of May 23d, 1844; (or what must be regarded as a part thereof, the eighth section of the Act of March 3d, 1853) no longer reserved from sale or entry, and they may be disposed of without a special act of Congress; and the State of California is not inhibited from taking up such vacant places, as public lands of the United States.
The design of Congress was, and the reason upon which the laws of 1844 and 1853 is based, is, for a certain, length of time, to give town authorities a preferred right of entry up to a certain time to take up so much of the public lands as may be occupied by the inhabitants of the town, and no more; the quantity is limited, and also the time within which the right must be exercised.
This right cannot be said to be continuing; cannot be said to curtailthe revenue of the government--to withdraw the land from sale or entry by the State. Congress merely says to the municipal authorities, as you are occupying our land and we contemplate selling it soon at one dollar and twenty-five cents per acre, you may at any time before we sell the public land around it, that is, if you see proper, pay the standard price and take it. A mere proposition, not a contract, until the offer is accepted and the price paid; to this condition the eighth section of the Act of March 3d, 1853, subjects town sites. Neither act confers either a legal or equitable right in the inhabitants; it is after the land is entered that their occupation gives them a right and makes them the beneficiaries of a trust.
To test this we ask the question, Has not Congress a most undoubted right to repeal the Act of May 23d, 1844, any time before the land is entered and the purchase money thereof paid? Undoubtedly. But when the land is purchased, Congress is powerless to accomplish the destruction of such a vested right. This illustrates, forcibly, the weak status of appellants.
Until the land is entered in the manner provided by the Act of May 23d, 1844, the occupant has no title; not even what the appellant dignifies, in his offered testimony, with the appellation of a " claim of right." (United States v. Brown, 4 McLean, 378.)
By the survey appearing in the record dated March 31st, 1855, the site of " Red Bluff" is represented thereon. Yet we find the President of the United States ordering the identical tract of land described in the patent, to be sold to the highest bidder, on the fourteenth of February, 1859. This, of itself, ignores the idea of a reservation.
V. The President's proclamations, ordering public land sales, are judicially noticed. (Report of N.Y. Commissioner, secs. 1705, 1706; 1 Greenl. Ev. 8; 2 Green Iowa 191.)
O. C. Pratt, for Appellants.
Geo. Cadwalader, for Respondent.
S. Heydenfeldt and E. B. Crocker, also for Respondent.
I. The patent, in this case, vested in the plaintiff " a good and valid title, in fee simple, to the lands therein described." Such is the language of the act under which this patent issued.
The Act of Congress of 1841 operated as a present grant to the State the moment the selection was made, without any patent from the United States. (Foley v. Harrison, 15 How. 433; Wilcox v. Jackson, 13 Pet. 498; Summers v. Dickinson, 9 Cal. 554; Opinions U.S. Attorney-General, 8 vol. 247, 253, 254, 390.)
In pursuance of that act, this State has passed various laws, providing for the selection of these lands; and under these laws, the lands described in the plaintiff's patent were selected. But it is insisted that these lands were reserved from sale, and consequently from selection, and to sustain this, the defendants' counsel refers to the Acts of Congress of 1841, of 1844 and of 1853.
But a careful examination of these acts shows that they do not reserve town sites from sale, within the exception of the Donation Act, but merely reserve them from entry under the preemption laws, until the commencement of the public sale of the body of the land in which they are situated.
II. The defendants, being destitute of title, have no right to attack the patent.
1. Settlers upon public land have no title; at least, not until they have done some act towards its purchase or preemption. (Burgess v. Gray, 16 How. 48, 65; Merrill v. Le Grand, 1 How. (Miss.) 150; Craig v. Tappan, 2 Sandf. Ch. 78; 8 S. & M. 234, 268; Wynn v. Morris, 20 How. 3 -6; United States v. Brown, 4 McLean, 378.)
2. Without some title, defendants had no right to attack the patent, and the District Court, therefore, did not err in ruling out the proof. (Moore v. Wilkinson, 13 Cal. 478; Boggs v. Merced M. Co. 14 Id. 279; Yount v. Howell, Id. 465.)
And this principle is fully sustained by the following cases: Bagnell v. Broderick, 13 Peters, 450; Burgess v. Gray, 16 How. 48; Minter v. Crommelin, 18 Id. 87; Cooper v. Rob erts, 18 Id. 173, 182; Spencer v. Lapsley, 20 Id. 273; 7 Barb. 621; Jackson v. Lawton, 10; Johns. 23; Wiggins v. Lusk, 12 Ill. 132; Brewer v. Manlove, 1 Scam. 156; Crommelin v. Minter, 9 Ala. 594; Boyce v. Papin, 11 Miss. 16.
3. A patent cannot be impeached in a collateral action, for any matter dehors, but only in a direct action brought by the Government for that purpose, in equity, by scire facias or information. (Yount v. Howell, and Moore v. Wilkinson, cited supra; Gregory v. McPherson, 13 Cal. 562; White v. Bumley, 20 How. 247; Spencer v. Lapsley, 20 Id. 272; Field v. Seabury, 19 Id. 332; Cooper v. Roberts, 18 Id. 173; 3 Pet. 320; 7 Wheat. 212, 120; 13 Pet. 449; 5 Wheat. 293; 6Cow. 281; 4 Bibb, 329, 7 Barb. 621; 4 Monroe, 51; 6 Md. 104; 2 Ohio, (N. S.) 216; 15 Geo. 491; 10 Id. 465; 7 B. Monroe, 80.)
III. The locations could be made before the survey of the United States. The Act of 1841 requires the locations to be made " conformably to sectional divisions and subdivisions." " Conformably to," means in like manner, or method. It does not require them to await a survey by the United States. It no where says so. On the contrary, it says, " shall be located in parcels conformably to," & c. If it had intended otherwise, the act would have said, " shall be located in sectional divisions, as made by the United States Survey." The Legislature has provided that, after the United States survey, the lines of the locations shall be made to conform to the lines of such survey. Theidea of subsequently shifting, swinging or conforming lines of a survey to a subsequent survey, is not a new one in that act.
It is exactly the plan required in the Act of Congress, providing for preemptions on unsurveyed lands.
It is submitted, that certainty is all that is aimed at by the Act of Congress, and if that can be equally attained by a plan of selection prior to the survey, there is nothing in the policy of the Government, nor in a just interpretation of the act, which would operate to delay the selections to be made by the State, until after a survey. Probably four-fifths of the lands derived under the Act of 1841, have been selected in the same manner; and no com plaint has ever arisen on the part of the United States, of want of conformity to her plans of survey, or of any embarrassment arising from the State's action.
IV. The location of lands belongs to the political department of Government, and the acts of public officers therein cannot be attacked in a collateral action, especially in a case like this, where the law provides for the trial of contests before the Register of the State Land office and the District Courts, prior to the issuing of the patent. In such case, the decision of the Register is res judicata .
It would impose a great hardship upon holders of title under a patent, if in every little petty action of ejectment--perhaps for land of little present value--the defendant could compel them to prove every prerequisite on which the patent is founded. The State has especially provided how the matter may be contested oncefor all, and thus evidently intended to relieve the patentee from such a burden--if it could be imposed upon him under the rules of law.
Where the law has referred the decision of a matter to the sound discretion of a public officer, upon the facts of which he is the appropriate judge, his adjudication becomes conclusive. (Allen v. Blunt, 3 Story, 742.)
The decision of land officers, in respect to the right of preemption, is conclusive. ( 16 Ark. 25 ; 14 Ill. 343 ; 13 Ala. 137; 9 Mis. 183; 16 How. 64 .) The certificate of the surveyor, authorized by law to locate lands is sufficent proof as to the performance of all the acts required by law; and the parties cannot go behind it. ( 5 Cranch, 234 ; 3 Wheat. 594; Haydel v. Dufresne, 17 How. 23 .)
Congress appropriated a certain quantity of lands for schools, to be selected by the Secretary of the Treasury, out of any unappropriated public land. Held, that the selection by the Secretary is conclusive. (Campbell v. Township No. 1, & c. 12 How. 244 .)
JUDGES: Field, C. J. delivered the opinion of the Court. Baldwin, J. and Cope, J. concurring.
OPINION
FIELD, Judge
On petition for rehearing, Field, C. J. delivered the opinion of the Court--Baldwin, J. and Cope, J. concurring.
We do not find any considerations advanced in the petition for rehearing, which were not passed upon in the opinion already delivered. The Act of September 4th, 1841, does, as we stated, require the locations of the State to be made " conformably to sectional divisions and subdivisions," but it does not require the State to postpone the selections until the survey of the United States. It is only with reference to the old States, designated in the first section of the act, that the clause determining the time of the selections applies. As to the new States, the interest in the 500,000 acres vests upon their admission into the Union, and the selections by them are only subject to three qualifications: First, they must not be of lands reserved from sale by any law of Congress, or the proclamation of the President. Second, they must be in parcels of not less than three hundred and twenty acres each. And third, the parcels selected must be in such form as to correspond with the survey of the United States, when made. The selections will not, of course, become absolute and definite until the survey; until then, the parcels selected may be subject to a possible reservation from sale; and when there is no such reservation, they may require some change in their exterior lines, so as to conform to the official sectional divisions and subdivisions. In the legislation of the State, provision is made so as to secure such conformity.
Rehearing denied.
Note.--It appears from the records in the office of the Surveyor-General of California, that, under the Act of May 23rd, 1852, authorizing the location of school warrants, 159,520 acres were located of unsurveyed lands.