18 Cal. 198 | Cal. | 1861
Baldwin, J. and Cope, J.. concurring.
This is an action of ejectment to recover certain real estate situated within the city and county of Sacramento. The plaintiff traces title to the premises from the grant issued to John A. Sutter by the Mexican Governor, Alvarado, in June, 1841. The case resembles in its essential particulars that of Cornwall v. Culver, decided at the last October term. (16 Cal. 423.) We there held that for land within the boundaries of the general tract designated in the grant, situated within the county of Sacramento, ejectment will lie directly upon the grant; and that it is no objection to a
In that case, it appeared from the evidence that the land within the county of Sacramento, covered by the grant, was in the possession of Sutter, by the permission of the former Government, for years previous to the cession of the country to the United States ; that it was subjected by him to all such uses as he desired ; that over it he had absolute control, without disturbance by any one, exercising the rights of a proprietor to the knowledge of the Government, and with its recognition of their existence; that he asserted ownership to the land under the grant; and that for years after the conquest and treaty his claim and possession remained unquestioned. “ His title, whether it be regarded as a legal or equitable one,” we said, “ is sufficient, under these eireumstcmces, to enable him, and those holding under him, to recover on maintain possession in the Courts of the State, until at least, the United States intervene and determine, through the appropriate departments, that his claim, under his grant, shall be satisfied by land elsewhere selected. Thus far the United States have given no countenance to any intrusion upon the land ; but, on the contrary, have expressly forbidden the assertion of any preemptive rights to it, or to any lands similarly situated.”
The grant itself gave a right of possession.. Indeed, it was subject to the conditions of cultivation or occupation by the Mexican regulations of 1828, which were adopted to carry into effect the general Colonization Law of 1824; and a compliance with those conditions was essential to avoid a possible denouncement and forfeiture of the land granted. It is of no consequence, therefore, whether the title which it created be deemed a legal or" an equitable one; for carrying with it the right- of possession, it is sufficient to support ejectment. Although the grant contemplates a measurement by the proper officers of the former Government of the specific*quantity granted, and only in that way, by the laws of that Government, could the specific quantity be definitely and permanently located, yet it was competent for the grantee himself to make a temporary, selection and location, which would be binding and effectual as against intruders and trespassers, and all parties, until the action of the Government in the matter. The language used by us in the cases of Waterman v. Smith (13 Cal. 416) and Moore v. Wilkinson, (Id. 489) to the effect that the right .of location rested exclusively with the Government and Avas not left to the grantee, or subject to any control by him, must be taken as referring to a definite and permanent location, by which the title becomes attached absolutely to some particular tract. A temporary selection or location of the land, or of some portion of it, must be made by the grantee in executing the conditions to which the .grant is subject. Such temporary selection and location are evidenced by occupation or cultivation of the land its sale, or lease, or any ordinary use by the grantee according to the custom of the country.
Judgment reversed and capse remanded for a new trial.