92 Cal. 437 | Cal. | 1891
This is a suit in equity instituted against the city of San Francisco and a large number of private parties, for the purpose of obtaining a decree ordering, adjudging, and declaring,— 1. That-the plaintiff is the successor in interest of one Peter T. Scherrebeck, and, as such, the equitable owner of a tract of land eight hundred varas square, situated in the heart of the city; 2. That the United States, in conveying the premises to the city and county of San Francisco, did so in trust for the plaintiff, thereby imposing upon said city and county the duty of conveying the same to him; 3. That said city and county, as successor of the Mexican pueblo of Yerba Buena, is, with respect to said premises, bound by the acts of the various officials of the former government prior to the conquest, and by the acts and declarations of the United States and its military and other officers pending and since the conquest; 4. That said city and county, and the numerous private parties who are alleged to be in possession of the premises, and for that reason united as defendants in the suit, be adjudged to hold and to have held such possession with full notice of the equities of the plaintiff, his grantors and predecessors, and directed to convey their interest and surrender the same to him; that if they refuse so to do, commissioners be appointed fo execute such conveyances, and also to take an account of the rents and profits of the premises, and that defendants be charged therewúth.
Some other specific relief is asked, and there is a prayer for general relief, but the foregoing epitome of
The defendants demurred to the complaint upon numerous grounds, and their demurrers were sustained, whereupon final judgment was rendered in their favor. From this judgment the plaintiff appeals, and the question to be determined is, whether the complaint is insufficient in any of the particulars stated in the demurrers.
For the purpose of this inquiry, it is necessary to state at least the substance of the complaint, which, it is to be observed, is extremely prolix and redundant, especially in its allegations of matters of law, as to which it is not always strictly accurate. It is alleged that the state of California was, prior to July 18, 1848, a political department of the republic of Mexico, and was subdivided into pueblos constituting political municipalities, supplied with such officials as the republic or governor of the department chose to appoint; that such officers could grant and distribute lands of the municipalities; that the pueblo of Yerba Buena, or San Francisco, was one of such municipalities, and was provided with a prefect appointed by the republic and the governor of California, and empowered, among other things, to make grant and distribution of land to private persons in fee, within his district and said municipality; that there was also an alcalde of said pueblo, who had power to represent the community and express its will as to the propriety of granting lands within the pueblo, and whose acts were binding, unless reversed on appeal to the governor; that at all times mentioned in the complaint, prior to the conquest, Manuel Castro was prefect and José De la Sanchez was alcalde of said pueblo; that prior to the grant hereinafter mentioned, the land therein described was vacant and within the boundary and jurisdiction of said pueblo, and subject to grant by said prefect; that Peter T. Schorrebeclc, a resident and naturalized Mexican citizen, presented to said prefect the following petition: —
*446 “ Señor Prefect of the Second District.
“ I, Peter Scherrebeck, a native of Denmark, a citizeri of Mexico, and a resident of this place, appear before your honor, and respectfully represent that, desiring to devote myself to agricultural pursuits, and also to establish a dairy, for which purpose I am in need of a suitable piece of land, I pray your honor, in the exercise of your powers, to be pleased to grant me the place called Rincon, which is situated one fourth of a league southerly from this place, containing one half league, bounded by the beach and the wood, as explained in the accompanying sketch. Wherefore, I beseech you to accede to my petition, whereby I should receive favor, etc.
“Yerba Buena, November 24, 1845.
[Signed] “ Peter Scherrebeck.”
Thereupon, said prefect, on receipt thereof, indorsed thereon as follows: —
“Yerba Buena, November 25, 1845.
“The chief local authority of this place will report whatever he may deem convenient upon the contents of this petition.
[Signed] “ Castro.”
And delivered the same to the said pueblo; and said pueblo of Yerba Buena, by its officer aforesaid, J. De la Sanchez, in its behalf, and as by law authorized, reported to the said prefect the following, to wit:—
“ Señor Prefect of the Second District.
“In obedience to the supreme decree of your honor, I should report that the land which the party in this representation solicits is vacant; that the petitioner possesses the requisite qualifications to be heard,—notwithstanding this juzgada is of the opinion that only land upon which to build a house and corral, and to plant, can be granted to him, upon which questions your honor will determine whatever you maj»- deem most proper.
“ Yerba Buena, November 2.6, 1845.
[Signed] “ J. De la C. Sanchez.”
Which report, with the petition, was made and returned
“In view of the present petition, the report of the municipal authority of Yerba Buena, and other proceedings had by virtue of the power invested in me by the law of the 20th of March, 1837, I grant to Don Pedro Scherrebeck the ownership of the place called Yerba Buena, to the extent of eight hundred varas square, he being subject to pay the tax that may be assessed to him by the most excellent departmental assembly. Let this expediente be returned to the party interested, serving him as a title, that he may take possession of said land. The undersigned prefect thus decreed, ordered, and signed in the pueblo of San José, this fifth day of December, 1845.
[Signed] “ Man’l Castro.”
Which said grant was at date of issuance duly recorded by the prefect in the archives and registers of said prefecture, as provided by law, and as was the custom in such cases; that the said prefect, on the fifth day of December, 1845, at the said Yerba Buena, delivered the expediente of the grant last described and named to the said Pedro T. Scherrebeck, who is the same person elsewhere called in this complaint Peter T." Scherrebeck, who thereupon, with the knowledge, consent, and approval of the authorities of said Yerba Buena, and espe
It is further alleged that said Scherrebeck inclosed, improved, and occupied said premises, his occupation and ownership being recognized and respected by the government, the pueblo, and all other persons until the cession of the territory by the treaty of peace between Mexico and the United States.
The complaint then alleges the war, the conquest, the treaty and cession, the military proclamations pending the conquest, the terms and effect of the treaty, the admission of California as a state, the obligations she assumed, etc. Next are alleged the several and successive acts of the legislature, incorporating the city of San Francisco in 1850 and 1851, and consolidating the city and county in 1856, and it is alleged that within the boundaries established by each of these acts was included said eight hundred varas so granted to Scherrebeck, and a part or all of the former pueblo. Next is
In considering the objections to this complaint, we remark at the outset that its allegations are accepted as true so far only as they relate to matters of fact as distinguished from matters of law. As to the latter, they
1. • It is contended by the respondent that the grant of Scherrebeck, under which the plaintiff claims, is void, and that it conferred no rights upon the grantee, and gives none to the plaintiff as his successor.
We do not think this proposition can be sustained in its full extent. The facts alleged as to the making of the grant, the possession under it, the presentation of the claim to the land commission, and its final confirmation by the district court, show a grant which is valid, at least against the United States and all persons claiming thereunder, although not conclusive against the third persons mentioned in the act of Congress of March 3, 1851. And with respect to this grant, we think the city of San Francisco, as successor to the pueblo, and those claiming under the city are such third persons. In other words, we think it clearly appears from the complaint that the grant to Scherrebeck was not made by the prefect as an officer of the pueblo empowered to transmit its title, but that it was made by such prefect by authority from and approval of the governor of the department by virtue of his superior power to grant vacant lands within the boundaries of the pueblos, irrespective of their claim to hold and to dispose of them. We think it was and continued to be a grant held under a title adverse to that of the pueblo.
We cannot find in any of the laws or ordinances of Spain and Mexico to which we have been referred any authority conferred upon prefects to make grants in fee of the pueblo lands. It is not contained in the decree of the Spanish Cortes of January 4,1813, nor in the plan of Pitic, nor in the Mexican law of colonization of 1824, nor in the regulations of 1828, nor, we think, in the law of March 20, 1837, to which the prefect himself refers as the source of his authority. The clause of this act, cited and relied on by appellant, is given in the original Spanish and in translation, at page 314, addenda, Dwinelle’s Colonial History of San Francisco. In terms, it merely
The city of San Francisco, as successor to the pueblo, had already, in conformity with its right and duty under the act of Congress of March 3,1851, presented its claim to four leagues of land for confirmation by the land commission. Meantime it was denying and repudiating the Scherrebeck claim. In consequence of this dispute, the Scherrebeck claim was presented by the grantee, and pending the confirmation of the city’s claim, that of Scherrebeck was, in 1859, confirmed by the district court on appeal from the commission. This shows that it was regarded and treated as a claim of a third party, adverse and hostile to that of the city. For the land commission had no jurisdiction, pending the confirmation of the claim of a city or town to lands of a former pueblo, to adjudicate a controversy between the city and the claimant of a grant from the pueblo, as to the validity of such grant. Its 'function was to determine what claims were good against the United States under the treaty of cession; it had nothing to do, except incidentally, with subordinate controversies between the holders of such claims and those claiming under them. Possibly, if a city as successor to the right of a pueblo had neglected to present its claim for confirmation, it might have been allowable for one or more holders of pueblo titles, in behalf of themselves and others, to petition for a confirmation of the pueblo claim. But when the city was itself proceeding with its application for confirmation of its claim to the entire four leagues of pueblo lands, we cannot see how, under the law, the holder of a pueblo grant of a smaller parcel could be allowed to proceed in his own behalf, and still less, how he could procure from the land commission or the district court a conclusive adjudication that his grant from the pueblo was valid. We do know, on the contrary, as a part of the judicial history of the state, that such individual claims to
Of many instances of such claims to tracts of lands situated within pueblo boundaries, and held under grants from the governor and .departmental authorities, we cite those litigated in Leese v. Clark, 18 Cal. 535; Lynch v. De Bernal, 9 Wall. 315; Steinbach v. Moore, 30 Cal. 505. Our conclusion, from all the facts alleged in the complaint, is, that this claim of Scherrebeck, as confirmed by the district court, stands in the same relation to the city’s claim as successor to the pueblo as did the claims above referred to. It is and always has been a claim adverse and hostile to that of the city, and the city’s claim is adverse and hostile to it. There is no relation of trust between the city and its grantees on the one side, and the plaintiff on the other. The city never has held any legal title in trust for the plaintiff, and there is nothing to support this suit in equity, or to justify the granting of any of the specific relief asked.
The whole case amounts simply to this: that the city and its grantees are holding the land in controversy under one title, and the plaintiff is claiming it under an independent and adverse title. His remedy, therefore, is by an action at law for the recovery of the land, and not by a suit in equity to compel the transfer of a title under which he can claim nothing. The demurrer was therefore properly sustained on this ground.
2. Even if it were conceded, as appellant seems to claim, that all the allegations of his complaint upon which is founded the prayer for equitable relief can be treated as' surplusage, and the action regarded as one at law for the recovery of the land with its rents and profits, it,would still follow that the demurrer was rightly sustained, on the ground that such an action had been barred by sections 318 and 319 of the Code of Civil Procedure long before this action was commenced.
3. These reasons are sufficient to compel an affirmance of the judgment. But the same result would follow if it were allowed that under a proper construction of the complaint the Scherrebeck grant was made by an agent of the pueblo, and conveyed the pueblo title; for if so, the moment the city’s claim to the pueblo lands was confirmed, the title either inured to the plaintiff ipso facto, or his right to compel a conveyance from his trustee accrued. If the theory of the complaint is correct, that the final confirmation of the pueblo title, and the grant from the United States in pursuance of such confirmation, invested the city of San Francisco with the legal title' in trust for plaintiff as to the Scherrebeck claim, and if it is true, as alleged, that the city had denied the validity of the grant years before, then certainly the right to sue for a conveyance — the right, in other words, to maintain this action — at once accrued, and the statute of limitations began then to run against it. But the pueblo title was confirmed and the lands granted to the city by the act of Congress of March 8, 1866. (14 U. S. Stats. at Large, 4.) The previous grant contained in section 5 of the act of July 1,1864 (13 U. S. Stats. at Large, 332), was not in terms a confirmation of the pueblo title, but merely relinquished to the city the title of the United States to the lands within the corporate limits as established by the act of 1851, and the
And so, also, if we assume that the grant to the city inured to plaintiff’s benefit, passing the legal title to him without the necessity of any further .conveyance from the city (as we think it would have done if his grant had been from the pueblo), his right to maintain an action at law against those in possession then immediately accrued. The legislative grant was for every purpose as effectual as the patent, so far as the transfer of the title is concerned. All that the patent added was a convenient method of proving the exact boundaries. By the grant the title was perfected, and the statute of 1863 then began to run. It is true that the act makes the issuance of a patent final confirmation of a Mexican grant, but the act does not, by its terms, postpone the running of the statute until final confirmation. On the contrary, it declares that the time shall run irrespective of final confirmation, and it is only by a construction imposed upon the statute by the courts that five years is allowed for suit on a Spanish or Mexican title after it has been perfected. The usual mode of perfecting siich titles is, of course, that which is mentioned in the statute, i. e., survey and patent; but when title is perfected by act of Congress, the same construction of the act
That legislative grants have all the effect of a patent, see the following cases: Montgomery v. Bevans, 1 Saw. 653; Harris v. McGovern, 2 Saw. 515; Palmer v. Low, 98 U. S. 16, 17, and cases there cited; Tripp v. Spring, 5 Saw. 210. Many other decisions might be cited to the same effect, but we do not deem it necessary.
There are other objections to the complaint, but they need not be discussed.
For the reasons above given, the judgment of the su- • perior court is affirmed.
McFarland, J., Sharpstein, J., De Haven, J., and Paterson, J., concurred.
Mr. Justice Harrison, being disqualified, did not participate in the foregoing opinion.