89 Cal. 354 | Cal. | 1891
Lead Opinion
This is an action of ejectment. The complaint is in the usual form, and the answer is a general denial.
The plaintiff claims title under a patent from the United States to the Central Pacific Railroad Company issued April 3, 1872, and a deed from that company to plaintiff’s testator dated April 3, 1873. The defendant claims under a patent from the state of California dated February 25,1875.
The facts, which are not disputed, are, in substance, as follows: In 1858, when the land was unoccupied public land of the United States, Philip Hirleman settled on the land and built thereon a dwelling-house, fences, and corrals, cultivated a portion of it, and remained in possession until he conveyed to one Jean Peter, March, 1866; the latter went into possession of the land and held the same until it was conveyed by him to the defendant herein, March 29, 1867.' On June 13, 1864, Hirleman applied to the locating agent of the state to locate the land in controversy under the provisions of the act of the legislature of April 27, 1863, entitled “An act to provid,e for the sale of certain lands belonging to the state,” as a lieu school-land location; this application was in due form, and accompanied by the affidavit of loyalty, and was accepted on the sixteenth day of June, 1864. At some time prior to January 30, 1865 (the exact date is not found), the Western Pacific Railroad Company filed a map in the office of the Secretary of the Interior, designating the general route, and a copy of this map was received at the land-office in San
The question is, Upon these facts, which party has the better title? The defendant claims that the act of Congress to quiet land titles in California, passed July 23, 1866, confirmed the state location, and granted the land in controversy to the state and her assigns, the state having, prior to the passage of the act, and prior to the definite location of the line of the road, made a selection of the land, in lieu of school-lands which had been lost, and disposed of the same to defendant, who purchased it in good faith; that the patent to the railroad company is void as to the land in controversy, because at the time the grant to the company took effect the land had been “ otherwise disposed of by the United States,” within the meaning of section 3 of the act of July 1, 1862.
These contentions are the logical result of the defendant’s erroneous views as to the operation and effect of the Pacific railroad acts of July 1, 1862, and July 2, 1864. Although the amendatory act of 1864 enlarged the grant of 1862, it was done in such a way as to give the same operation and effect to the grant of the enlarged quantity as if it had been included in the provisions of the original act, and there is no longer any question as to the operation and effect of the act of 1862. Referring to a similar grant, the supreme court of tho United States, in Leavenworth etc. R. R. Co. v. United States, 92 U. S. 741, said: “‘There be and is hereby granted’ are words of absolute donation, and import a
Section 7 of the act of July 1, 1862, provides that the “said company shall designate the general route of said road as near as may be, and shall file a map of the same in the department of the interior, whereupon the Secretary of the Interior shall cause the lands .... to be withdrawn from pre-emption, private entry, and sale.” This map was filed in the office of the Secretary of the Interior prior to January 30, 18G5, and on the day last named a copy thereof was filed in the United States land-office at San Francisco, with an order of the Secretary withdrawing the lands from pre-emption, private entry, and sale. The purpose of this requirement and the effect of the withdrawal are to preclude the acquisition or initiation of any right other than that of the company in any of the odd-numbered sections of land until the line of the road has become definitely fixed, and when so definitely fixed the grant becomes specific by attaching itself to every odd-numbered section. If,
Hirlemau’s application to the state locating agent was made and accepted in June, 1864. At that time the lands were unsurveyed, and the application and approval were therefore void. (Collins v. Bartlett, 44 Cal. 380.) It is true, the application was on file when the agent made application to the United States land-officers to locate the land,— February 28, 1865, one day after the ojfficial map of the township had been filed by the surveyor-general,— but this did not make the application or location valid. The lands had been withdrawn by the Secretary, and thereafter no right of any kind could attach to the lands through any act of the state or its agent. On January 30, 1865, if not before, the company’s grant attached in such a manner that its indefeasible right to the land depended only upon the filing of the map of definite location and the completion of the road. For the same reasons the decision of the officers of the land department in approving and listing the land to the state was void. The title had passed to the company before the listing. The definite location of the line of the road identified the odd-numberd sections within the limits of twenty-five miles on each side of the road, and the patent to the company took effect by relation as of the date of the passage of the act of July 1, 1862. (Missouri etc. R’y Co. v. Kansas Pac. R’y
It is claimed by respondent that the question as to whether the land was subject to selection by the state was a question of fact within the jurisdiction of the land department, and that its decision cannot be attacked in this action. In Smelting Co. v. Kemp, 104 U. S. 641, the court held that if the lands had been previously disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. In establishing any of these particulars the judgment of the department upon matters properly before it is not assailed; its authority to act at all is denied, and shown never to have existed. (Wright v. Roseberry, 121 U. S. 519; Doolan v. Carr, 125 U. 8. 618.) The act of August 3, 1854, provides that if the lists embrace lands not granted to the state or territory, “ said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby.” (10 IT. S. Stats. 346.)
The confirmatory act of July 23, 1866, did not give to defendant’s claim any additional assurance. There is nothing in that act indicating an intention on the part of Congress to make its provisions applicable to any lands which had been withdrawn from sale; and if there were, it would be a nullity so far as the lands granted and withdrawn from sale under the Pacific railroad acts are concerned, for Congress could not, after the company had accepted the terms of the acts of 1862 and 1864, and
Some of these questions have been considered recently in the United States circuit court, ninth circuit. In a thorough and elaborate opinion by Judge Sawyer, Justice Field concurring, the decisions of the national courts, and the provisions of the several acts of Congress bearing on the subject were carefully reviewed, and the conclusions reached which we have expressed above, (United States v. Curtner, 38 Fed. Rep. 1.)
Section 4 of the act of July 2, 1864, provides that “ any land granted by this act, or the act to which this is an amendment, shall not defeat or impair any preemption, homestead, swamp-land, or other lawful claim, nor include any government reservation or mineral land, or the improvements of any bona fide settler, or any lands returned and denominated as mineral lands, etc.” Defendant insists that if the lands were not “ otherwise disposed of by the United States” (sec. 3, act of July 1, 1862), through the selection made by the state, he acquired at least a “ lawful claim,” and became a “ bona fide settler,” within the meaning of those words, by the listing over to the state and by operation of the act of July 23, 1866, and therefore the patent to the company was issued without authority of law, and is void.
The language of the act shows that the “ other lawful claim” referred to is a claim which has become in some way so connected with the paramount source of title as to be recognized as a claim by the laws of the United States. A pre-emption claim is a lawful claim, because regularly initiated under the laws of the county; so are homestead and swamp-land claims; and the other lawful claim referred to must be of equal dignity and force. “Lawful claim” would include a Mexican grant, or the claim of the state to lands granted to it after selection of the lands and before patent; but one who has simply
Was the defendant a “ bona fide settler”? Counsel for appellant said at the argument that the act as enrolled reads, “ or the improvements of a bona fide settler on any lands returned and denominated as mineral lands, etc.,” but assumed that the court would be bound to read it as printed in the volumes of the United States Statutes at Large, and .that if the defendant was a bona fide settler at the time the land was withdrawn from sale by the Secretary of the Interior, the judgment of the court below should be affirmed. We consider the case from this stand-point.
2STo case was referred to, nor have we been able to find one, in which the words “ bona fide settlerhave been construed. We think, however, that they must refer to one who has done something more than merely occupy the land and put a few improvements upon it; and that is all the court has found here. It cannot be said that every one who enters upon land and builds a fence and a cabin or a house is a bona fide settler. If Congress had intended to exclude from the grant all lands upon which there were settlers having improvements, without regard to the question whether their entry and possession were lawful, it is not likely that it would have employed the term “ bona fide.” Some effect must be attributed to those words. There certainly must be shown an intention in ■ good faith to proceed diligently •to comply with the laws and acquire title. Appellant contends it must be shown that the settler entered upon ■the land for the purpose of acquiring title thereto from the government, and that he possessed the necessary qualifications to entitle him to connect his claim with the paramount source of title, and in support of his con
The failure of the court to find the ultimate fact re
The appeal from the judgment was taken more than six years after the entry of the judgment. It is therefore dismissed. (Langan v. Langan, ante, p. 186.)
The order appealed from is reversed.
McFarland, J., Garoutte, J., and Harrison, J., concurred.
Concurrence Opinion
— I concur in the judgment. There is no finding in this case of the ultimate fact of ownership of the land in controversy, nor is it found as a fact that Hirleman, under whom the defendant claims, was a bona fide settler on the land in controversy on January 30, 1865, at which date there was filed in the United States land-office at San Francisco the order of the Secretary of the Interior withdrawing from sale and location lands within twenty-five miles on either side of the general route of the Western Pacific Railroad Company, as shown upon its map of such general route theretofore filed. If he was such settler, then the land in controversy did not pass to the railroad company; otherwise it did. The court, therefore, should have found either that he was or was not a bona fide settler, in so many words. A bona fide settler, within the meaning of section 4 of the act of Congress of July 2, 1864, is one who has made an actual settlement upon public land, intending in good faith to acquire the title thereto from the United States. The words should be held to apply to any actual settler upon land affected by the act at the date of the order of withdrawal provided for in section 7 of the act, and who had settled thereon and made improvements, with the intention, in good faith, of taking at the proper time the necessary steps to acquire the title of the government in any of the modes allowed by
I think, also, that as there was no evidence tending to show that Hirleman was not a citizen of the United States, the court would have been justified in finding, from the facts before it, that he was possessed of the qualifications entitling him to purchase land from the state, and that upon January 30, 1865, he was a bona fide settler upon the land in controversy within the meaning of the act of July 2, 1864.
Beatty, 0. J., and Sharpstein, J., concurred.
Rehearing denied.
