33 Cal. 448 | Cal. | 1867
The plaintiff appeals from an order of the Twelfth District Court, made in proceedings had under an Act entitled “ An Act for the punishment of contempts and trespasses,” approved April 8th, 1862. (Stats. 1862, p. 115.)
The question presented by the appellant for decision is the constitutionality of the Act of the Legislature entitled “ An Act for the protection of settlers on public lands in this State, and to secure the rights of parties in certain cases,” approved April 26th, 1858. (Stats. 1858, p. 345.)
The facts are as follows: In 1861 David Mahoney commenced an action of ejectment against the terre-tenants to recover possession of the “ Rancho Laguna de la Merced.” The complaint alleged ownership and seizin in fee of the demanded premises, without other allegation or reference to the source or character of title. The answer of the respondent Green was a general denial of the allegations of the complaint, with an averment of title in himself to the portion of the premises described in his answer. The case was tried and judgment passed in favor of the plaintiff against the defendants, among whom was respondent Green, for the recovery of the possession of the premises described in the
In answer to the order to show cause why he should not be punished for contempt-and restitution he made, Green in substance admits the recovery of the judgment and its execution against him; avers that the plaintiff deraigns title through an inchoate Mexican grant, confirmation of which was necessary to impart to it validity; that it was presented to the Board of Land Commissioners for confirmation, pending which a survey thereof was made of half a league from east to west and a league north to south, the grant being for a smaller quantity within a larger exterior area, which survey was filed among the archives of the Board; that the Board confirmed the claim to the .extent of half a league and no more; that the confirmation of the claim has become final; that it was customary to make surveys of claims pending proceedings for their confirmation before the Board of Land Commissioners, under sanction of the Board and direction of the attorneys of the claimants, and to confoi'm their locations according thereto; that the survey in this instance was made by Hansom, a deputy of the United States Surveyor General for California, under the direction or with the consent and approbation of the attorneys of record of the claimants, whose claim to that half league was recognized and was so represented upon the public maps of the County of San Francisco—this survey was made in 1853; that after this Green settled upon the premises in contro
That an appeal was taken from this decision to the Supreme Court of the United States, and after argument, that Court made the decree given in the transcript, the material portion of which is: “ And it is further ordered by this Court that the decree of said District Court in this cause entered on the 18th day of June, 1862, be and the same is hereby affirmed. You are therefore commanded that such further proceedings be had in said cause in conformity to the opinion and decree of this Court as, according to right and justice, and the laws
We do not consider the question of the constitutionality of the Act of 1858 to be a turning point in the decision of this appeal; and for the reason that the re-entry complained of finds its justification in the principles of the common law. On the facts of the record, the United States owned the premises in question, and as owner they not only authorized the defendant to enter, but for a consideration paid, imparted to him the equitable, if not the legal right, so to do.
The Mexican grant under which the plaintiff claimed the land originally was of a half league within boundaries containing a much larger quantity, and he was entitled, under the decisions in this State, to possess the whole area until the half league should have been segregated under the Acts of Congress. Such segregation was accomplished, as we consider, in 1865, at the December term of the Supreme Court of the United States, by its decree reversing the decree of the District Court establishing the survey of June 15th, 1863, as “ a good and valid survey ” of the half league, and confirming the decree of June 18th, 1862, ordering a survey to be made in accordance with the Ransom survey, a plat of which was then on file in the proceeding and a copy of it, as we must presume, before the Court. This determination of the Supreme Court fixed the location of the half league under
It is urged by counsel that the direction in the decree requiring a “ new survey to be made in accordance with the said Eansom survey ” left the case in the same position that it would have been in if the direction for a new survey had been general and unrestricted. But to read the decree in that way would be a manifest misinterpretation of the intention of the Court. A judgment is but a conclusion of the mind properly manifested; and the conclusion embodied in the Eansom survey, evidenced by the plat on file, became a conclusion of the Court by express adoption. The only ne^ thing to be done within the intention of the Court was to make a duplicate original in the field of the Eansom survey, and file the same in Court.
The point made by the counsel for the appellant that segregation could not be considered as complete until the issuing of a patent, can be maintained neither upon principle nor authority. It was held in Waterman v. Smith, 13 Cal. 418, that a patent is evidence only of the pre-existing title made perfect' by confirmation and survey and in Natoma W. and M. Co. v. Clarkin, 14 Cal. 551, it was held in terms that “ a segregation was made by the decree.” It is true as urged for the plaintiff, that the legislative power
Assuming that the plaintiff’s half league was finally segregated by the decree of the Supreme Court, it follows that the surplus land within the exterior limits of the grant remained to the United States as the successor of the Mexican nation ; and the right of immediate possession was united in them with the right of property. Considering the Government as a private land owner, the State Legislature could not, even under the State Constitution, transfer either the property or possession to another by a mere edict; and,
The defendant has succeeded to all the rights of the Government. State legislation hostile to his right of entry, under proceedings or without them, would have been unconstitutional. But the Act of 1858 was in aid of the right, and not against it, and can be criticised upon no other ground than that it was wholly unnecessary.
The objection that the defendant is not in privity with the United States, for the reason that the premises were not subject to pre-emption, is not available to the plaintiff. He has himself no existing relations to the paramount source of title, and therefore cannot raise the question. The defendant claimed a pre-emption under the law; the claim was recognized by the Government by taking a^I receipting for th^, purchase money; the defendant has entered upon the bargained property and has mgde valuable improvements thereon. Thus far there has been no purpose manifested by the Government to repudiate the equitable obligation imposed upon it by the facts. (Goodlet v. Smithson, 5 Port. 245; Wright v. Swan, 6 Port. 84; Bullock v. Wilson, 5 Port. 338; Gale v. Davis, 7 Mo. 544; Hunter v. Hemphill, 6 Mo. 106; Robinson v. Forrest, 29 Cal. 321.) Until such attempt shall have been made by the Government or by some one standing in its place, the question of the defendant’s right niust be allowed to slumber.
But it is insisted further that the defendant cannot go behind the judgment in the ejectment suit brought against him by Mahoney. The answer to this objection is obvious. The thing forbidden is not attempted here. A new event has happened since Mahoney v. Green was tried and adjudged ; and the legal effect of the event is to confer upon the defendant a present right of possession; a right which
Order affirmed.
Mr. Chief Justice Currey did not express an opinion.