54 Cal. 430 | Cal. | 1880
The plaintiff claims title to the lands described in the complaint under a grant of the same made by T. M. Leavenworth, Alcalde of the Pueblo of San Francisco, to one A. C. Harris, on the 22nd day of September, 1848, which was in the usual form of alcalde grants, and made in compliance with the then customary formalities.
The question of the validity of such a grant, and that it conferred the right to the possession upon the grantee, cannot be reconsidered by this Court.
The 7th day of July, 1846, has been recognized by the Courts and by the Congress of the United States, as the date when the authority of the Mexican departmental officials terminated in Calitornia. But in Cohas v. Raisin, (3 Cal.) 448, it was held that a grant, or a town lot, made by an “ American Alcalde,” in 1847, conveyed a title to the grantee; and the Supreme Court said: “ A grant of a lot in San Francisco, made by an Alcalde, whether a Mexican or of any other nation, raises the presumption that the Alcalde was a properly qualified officer; that he had authority to make the grant, and that the land was within the boundaries of the pueblo.” It was further said, that such grants were not of any portion of the public domain, made
' The grant considered in Dewey v. Lambier, (7 Cal. 347) was made by the officer who executed that under which the present plaintiff deraigns title, and was issued nearly two months later. In Dewey v. Lambier, the Court said: “ In the examination of this case we have observed the same line of defense, substantially, as that made in the case of Cohas v. Raisin ; and, lest it might be supposed that there is some disposition on the part of this Court to question that decision, we take this occasion to approbate the same, and to announce our determination of adhering to it.”
Passing Hart v. Burnett, and Payne v. Treadwell, 15 and 16 Cal.—which recognize the cases previously referred to as authoritative— White v. Moses, 21 Cal. 34, is directly in point. There the grant had been made in 1849. The case was decided in 1862, long after the “Van Ness Ordinance” had been ratified, and the Court declared: “ The law upon this point, whatever may be the opinions of individuals, or the determination of tribunals not gov- -erned by our judgments, must be considered settled, so far as it
Nor (if it could be so overthrown) was the authority of the cases above cited overthrown by the Supreme Court of the United States, in Alexander v. Roulet, 13 Wall. 386. The grant there held to be invalid, was of a parcel of the common lands of the pueblo, and was made by Horace Hawes, elected and acting as Prefect of a district, which included the pueblo within its boundaries. The judgment of the Circuit Court of the United States for the District of California, which was affirmed by the Supreme Court, was to the effect, that although each Prefect of California, while the same was part of the Mexican territory, had power to make grants of the common and unappropriated lands of the pueblos within their jurisdiction, yet that from and after the conquest and acquisition of the country by the United States they ceased to have such power, and, consequently, the grant of Prefect Hawes was void.
The officers of the Territory of California, (including prefects) empowered by Mexican law to make grants of public lands, could grant lands within the pueblo ; but the powers of such officers to make grants anywhere ceased upon the conquest; and the power was not transferred to the military officers de facto, who immediately succeeded such departmental or territorial officers.
As we have seen, however, it has been determined by the Court, that a grant by an Alcalde was not an ordinary grant of the public domain, but a grant of municipal lands, made by a regularly authorized municipal officer, under the laws, usages, and customs of the country, not interfered with by .the United States, or the de facto government which existed in California subsequent to the conquest and prior to the admission of the State into.the Union. To maintain this position, it is not necessary to hold that the title or estate of the municipality was in any wise different from such as it was said to be in Hart v. Burnett, supra.
The plaintiff being the absolute owner of the lands described in the complaint, they cannot be entered upon without her consent ; nor can any portion of them be appropriated to the use of the public as a street, except upon due compensation paid or secured, and in pursuance of proceedings prosecuted for that purpose.
Judgment and order affirmed.
Boss, J., and McKee, J., concurred.