40 Cal. 358 | Cal. | 1870
Lead Opinion
delivered the opinion of the Court, Sander-SON, J., and Bhodes, J., concurring:
This is an action to recover land. The plaintiff relies upon a location of a school land warrant made in 1853, under the Act of May 3, 1852, authorizing the location of school land warrants on lands-of the United States, as a part of the five hundred thousand acres granted to the State by the eighth section of the Act of Congress of September 4, 1841.
Judgment and order denying a new trial reversed, and a new trial granted.
Rehearing
Subsequently, upon petition of respondent a rehearing was granted.
First — Tbe Act of 1852 was an attempt on tbe part of tbe State to dispose of ber lands in advance of tbe action of tbe General Land Department, but manifests no intent, or even attempt, in any way, to deprive tbe General Land Department of its supervisory power.
Tbe Act of .1841 allows tbe Stats to select tbe lands in sucb manner as tbe Legislature may direct; but tbe mere act of selection does not imply location in its full sense. It was competent for tbe State, acting through tbe Legislature, or tbe agent of tbe State, whose warrant, issued under tbe Act of 1852, was bis letter of authority to select any given half section by merely designating it; and so far as tbe United States is concerned, or in fact tbe State herself, if ber agent chooses to select at random any given section, taking tbe chances in every respect as to bow, when, and against whom it might fall, she has no complaint to make. That selection, thus made, appropriates tbe land, and bad there been no law upon tbe-subject, it is bard to see what objection tbe United States could make to tbe mere act of selection thus evidenced. If, however, when the selection was to be located, that is fixed upon tbe ground, and tbe plats filed, adverse pre-emption or other superior rights bad attached, it was liable to be defeated; but this mere liability per se should not be-allowed to operate-to defeat tbe-title.
Tbe Act of 1841 (Sec. 8, Lester’s Land Laws, p. 61.) implies a difference between tbe act of selection and location. Tbe one is left to tbe State, while tbe other implies-tbe constant supervision of tbe General Government. Thus it refers to sectional divisions and sub-divisions peculiar to, based upon, and in conformity with tbe system of our Land Department, and known only to tbe States by tbe connection of their land system with tbe Department, and existing only where originally adopted by tbe General Government or necessarily connected with tbe public surveys. It reserves lands by-the-action-of tbe- General Government; it stays tbe final act of location, but not tbe selection, until survey.
The first section of the Act authorizes the issuance of land warrants. The second section authorizes the location— erroneously so termed, for it is not only different from, but contrary to, a location in its essentials, as defined in the Act of 1841. The fourth section provides for survey and entry in office of County Clerk, and the fifth and sixth provide for the protection of the rights of the agent of the State until the location shall be made, and prescribes the mode of proceeding in case of non-conformity with the survey of the General Government, or a conflict. ^Che tenth and eleventh sections provide for a survey and full record of the appropriation of the land.
All this has been complied with on our part; every step there indicated has been pursued by us; our selection was duly made, surveyed and recorded; and, more than that, it had become final, not only as to the State, but as to the United States, for we produce the approval of the United States Register of this location, made immediately upon and following the completion of the survey. In Megerle v. Ashe, (33 Cal. 74), since affirmed by this Court in Smith v. Athern, (34 Id. 506), it is settled, that upon a location on a particular parcel of surveyed land, “selected and located,” says-dhe Comí, “in accordance with the provisions of the Act of Congress, when the selection and location have b§en made by the proper officers or agents, acting on behalf of the State, in such manner as the Legislature has-directed, and the selection and location has been approved by the proper officers of the United States, then the identification-of the land has made the title perfect, and attached it to the particular tract settled.” It is essential, under the Act of 1841, that the Legislature of the State shall direct the mode and manner of selection, and it seems
Second--The certificate of the Register of the United States Land Office, showing the location of plaintiffs school land warrant, is something more than a certificate. It is the approval of the United States officer, insisted upon as essential to the location in Megerle v. Ashe, (supra). It is, in fact, the location itself, so far as the United States is-concerned. It is one of the means adopted and sanctioned by the Executive Department of the Government in carrying out the law of the land; and this being the case, the document thus issued has at least the force of a certificate of location as against the United States. (Stats. 1859.)
There then comes to our aid the Act of the State Legislature, (Hittell’s Digest, 703), which makes our certificate prima facie evidence of title.
Third — In the present case the-first question is: Has the title passed from the United States ? The second: Has it vested in the plaintiff as the vendee of the State ? The first question depends exclusively on the laws of the United States, and must be determined by those_ laws. As to the second, we have only to refer to the Act of 1852, and are entitled to invoke its protection fully. By it we are secured in the possession of the land, subject only to be defeated so far as we may conflict with the United States surveys and rights existing at the-date of the selection. The State in her own behalf, has no right to question our act. If, by any accident, mischance, blunder or otherwise, she has sold the same land twice, every principle of fair dealing forbids that she shall prefer the later purchaser, or the title of either. If the United States recognizes the fact (and in this case and upon this record she does), that the title has passed from her to the agent of the State, the only question remaining is between the State and her agent, as to whether the provisions of the Act of 1852 have been observed, and the
That the question as to whether title has passed from the United States must be determined by the laws of the United States alone, we cite: Wilcox v. Jackson, (13 Peters, 498); United States v. Fitzgerald et al., (15 Id. 407;) Lessee of Hickey v. Stewart, (3 Howard, 750); Bagnall v. Broderick, (13 Peters, 450.)
M. A. Wheaton, for Appellant, for Rehearing.
First — By the eighth section of the Act of Congress of September 4, 1841, (Lester, p, 61.) five hundred thousand acres of land were granted to the State “for purposes of internal improvement,” “ the selections in all of the said States to be made within their limits respectively, in such manner as the Legislature 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,” etc., “which said location may be made-at any time after the lands of the United States in said States respectively, shall have been surveyed,” etc.
The admission of California into the Union, with Section 2 of Article IX in her Constitution, by Act of Congress indirectly changed the proceeds of the sales of the lands from an “internal improvement” into a school fund.
The title to these lands vested in California the moment she was admitted as a State into the Union, but they had yet to be selected and located. These two words, “selected” and “located,” are almost identical in meaning; taken as they occur in said section eight, they both together mean choosing and segregating these lands from the mass of public lands within the State.
In the Act of May 3, 1852, the Legislature undertook to dispose of the said lands, (Stats. 1852, p. 41). As by the
So much of the Act as provides for locating the warrants upon unsurveyed land, is in conflict with the law of Congress making the grant, and is void. (Const. U. S., Art. VI., Second Subdiv.)
The provisions of the Act being in conflict with the provisions and terms of the grant to the State, may well be challenged as legislative acts impairing the obligations of a contract. (Terry v. Megerle, 24 Cal. 624; Grogan v. Knight, 27 Id. 515.)
On this account, so much of the Act of 1852 as provides for the selection and location of unsurveyed lands, must be totally rejected as utterly void; and this portion of the Act being got rid of, the remainder is more easy to comprehend, and still holds good. (Lathrop v. Mills, 19 Cal. 530; Robinson v. Bidwell, 22 Id. 386; Warren v. Mayor of Charleston, 2 Gray, 98; French v. Teschmacher, 24 Cal. 546.)
Sections one, two, three, seven, eight, nine, thirteen, fifteen, sixteen and seventeen of the Act can all be sustained, while sections four, five, ten, eleven and twelve, should be rejected as conflicting with the law of Congress and the conditions of the grant, because providing for nothing but locations upon unsurveyed lands. Section six would also seem to be unnecessary to the location of surveyed lands, and section fourteen is unnecessary for any purpose except to assist in showing the intention of the Legislature.
It is plain, that while the Legislature, acting beyond her powers, made extraordinary provisions for the selection and location of unsurveyed lands, yet the whole Act was not exhausted in such illegal usurpation, but portions of it, including all of section three, provide-for-selection and loca
Statutes are to be construed according to their meaning and intention, even when tbe strict letter of tbe statute is otherwise. (Knowles v. Yeates, 31 Cal. 86-7; 1 Kent's Com. 461.)
Second — We are still of tbe opinion that neither of tbe exhibits offered in evidence was any legal evidence of title. Tbe first shows only a location upon unsurveyed lands, and is, of course, void; tbe second was not issued under any law of this State, or of tbe United States, and hence was not prima facie evidence under our statute, (Hittell, 703); tbe third is void upon its face, as Nye, tbe Begister of tbe Stockton office, could not lawfully certify to tbe consent of tbe Begister of tbe San Francisco office. Tbe exhibit is issued without authority of law, and is no legal evidence,
Tbe certificates were not copies-of tbe records and consequently were not legal evidence. (Hittell, 5583; Practice Act, Sec. 447; Gregory v. McPherson, 13 Gal. 572-3-4.)
Concurrence Opinion
delivered tbe opinion of tbe Court,-Ceockett, J., Temple J., and Sprague J., concurring:
At tbe former heaiúng of this case, it was held that tbe location of school land warrants, issued under tbe Act of May 3,1852, upon unsurveyed lands was void, and conferred no right whatever upon tbe locator. That proposition is beyond controversy in this State. (See Terry v. Megerle, 24 Cal. 610; Grogan v. Knight, 27 Cal. 520.) Tbe location of tbe warrant, under which tbe plaintiff claims, having been made before tbe lands were surveyed by tbe General Government, neither conferred title on tbe locator, nor gave him tbe right to tbe possession of tbe lands described, in tbe certificate of location.
It was also held, at tbe former bearing, that tbe certificate issued by tbe Begister * tbe Land Office at Benicia, was
It is unnecessary to consider at any great length, the various provisions of the Act of 1852, for the purposes of this ease; and besides this, the Act was drawn under a misconception of the power of the Legislature; and it is impossible to bring all the provisions of the Act into harmony. The plaintiff-contends, that the person holding the warrant under which he claims, was authorized to select the land on behalf of the State, in part satisfaction of the grant of 500,-000 acres, and that the land might therefore be located in accordance with law — the point of the argument being, as we understand counsel, that the selection of the land vested the title in the State, and that the locator of the warrant having pursued the provisions of the Act of 1852, is entitled to the possession of the land. "We say “as we understand counsel,’' for although he has presented very fully the leading, if not all the considerations applicable to his side of the several questions involved in the case, he has, neither in his brief on the former, nor on this hearing, stated the points — the legal propositions — which, in his view, arise upon the facts of the case, and which, if maintained, entitle him to judgment. It materially lessens the labor of the Court to have each point upon which counsel rely, fully, precisely and clearly stated, before proceeding to the argument. And this course will materially lighten the labor of counsel also, for it may safely be said that four points out of five need only to be stated, for, when stated with the requisite precision, their truth is apparent without argument; or it may happen, that when so stated, they are seen by counsel to be so palpably unsound that they are not urged
Tbe plaintiff bases, bis position, that tbe selection and tbe location of tbe land are two separate acts, upon tbe language of tbe eighth section of tbe Act of Congress of September 4, 1841, tbe section granting tbe land to tbe several States. Both of these terms are employed in tbe section, and they may not be synonymous. Provision might be made for tbe selection of tbe lands; that is to say, tbe State might indicate in such mode as she saw proper, what lands she desired to acquire in satisfaction of tbis grant, and provision might be made for their location at a future time, or by other agents. But it seems clear to us, that title to any particular parcel of land does not vest in tbe State, until tbe location is made. There is nothing in tbe Act of Congress, tbe regulations of tbe General Land Office, or tbe statutes of tbis State, which lends countenance to tbe idea, that the making by an officer or agent of tbe State, of a description or list of lands which tbe State desires to acquire under tbe Act of Congress, and tbe filing of tbe same in any State office, vests tbe title in tbe State or a purchaser from tbe State. But if tbis were not true, it is unquestionable, that no valid selection can be-made of unsurveyed lands.
Tbe Act of Congress of July 23, 1866, to quiet land titles in California, will not assist tbe plaintiff in tbis action, because tbe right or title, if any, wbicb be acquired by virtue of tbe Act, did not vest in bim until after tbe commencement of tbe action.
Tbe certificate of tbe Register of tbe Land Office at Stockton, tbat tbe land warrant was located on lands in another land district, with’ tbe consent of tbe Register and Receiver of tbe Land Office of tbat district, is plainly inadmissible in evidence.
Judgment reversed and cause remanded for arnew trial.