28 Cal. 652 | Cal. | 1865
This is an action brought under the provisions of section two hundred fifty-four of the Practice Act by the party in possession of Lot No. 1, in Block 32, in the Town of Colusa, for the purpose of determining a claim of title adverse to him, made by the defendant. The complaint—which is verified— sets out with great particularity a deraignment of the respective titles under which both of the parties claim. None of the material allegations of the complaint are denied, and they are, therefore, for the purposes of the action to be taken as true. Both claim under grants from the Mexican Government —the plaintiff under a grant to Manuel Jimeno, called the “Jimeno Grant”—the defendant under a grant to John Bid- . well, called the “Calus Grant.” Both have been confirmed, and finally located so as to include the lot in dispute, and the question is, which party has the better title ?
The grant to Jimeno of eleven leagues within larger boundaries, as shown by the record, was made November 4th, 1844; that to Bidwell of four leagues within the same larger area, October 4th, 1845. The claimants under the Jimeno grant presented their claim to the Board of Land Commissioners for confirmation March 24th, 1852, in pursuance of the provisions of the Act of March 3d, 1851; the claimants under the Colus grant, March 31st, 1S52. The Jimeno grant was confirmed by the Board January 3 0th, 1853 ; the Colus grant rejected October 25th, 1S53. Both cases having been appealed to the District Court for the Northern District of California, the decree confirming the Jimeno grant was affirmed, and that rejecting the Colus grant reversed, and the grant confirmed on the same day—July 5th, 1855. Both cases were again appealed to the Supreme Court of the United States, and at the December term, 3 855, of that Court, the decree confirming the Jimeno grant was finally affirmed, and the appeal in the case of the Colus grant dismissed—the decree of confirmation thereby becoming final. The Jimeno grant was after-wards, in 1858, surveyed so as to include the lot in contro
“ On the third day of April, 1861, the said United States Surveyor-General returned to and filed in said Court in said proceeding a certified coj>y of the original plat of an official survey of the said Jimeno Eancho, made in conformity with the said order of said Court, and marked as approved by the said United States Surveyor-General, on the twenty-sixth day of March, 1861. On the sixth day of April, 1861, on the motion of the claimants’ counsel to confirm said last named official survey, ‘ the counsel for the respective parties and Charles D. Semple, intervenor, in person appearing.in Court and, consenting to said motion and said official survey,’ the said United States District Court rendered and entered a decree finally confirming, approving and adopting the said survey as the true, proper and correct survey of the said land finally confirmed to the said Larkin and Missroon, as the Jimeno Eancho as aforesaid.” From this decree thus entered no appeal was taken either by claimants or defendant, Semple; but said Semple, as intervenor, in April, 1861, “especially waived, in writing under his hand, all right' of appeal from
A survey of the Colus grant was in the meantime made by the Surveyor-General, and also approved November 4th, 1858. Said survey did not embrace the land in controversy, or any land included in the survey of the Jimeno grant before mentioned, approved by the Surveyor-General on the same day. This survey was also on the application of said Semple returned into Court, and, October 17th, 1859, set aside, the said Court ordering a new survey to be made, “ with the right to the said Semple to select a location of two square leagues of land within the exterior limits of the said Colus grant.” November 5th, 1859, said Semple notified the Surveyor-General that he had elected the two square leagues of land embraced and contained in a certain private survey made in October, 1858, and that he consented that said last named survey should be adopted by the Surveyor-General as the proper location of said grant, and that the same be returned into Court in the room and stead of the new one directed to be made by said order of said Court. The said survey and another having been returned into Court, the survey so elected was confirmed by said District Court, February 2d, 1861. An appeal from said order of confirmation to the Supreme Court of the United States was taken by the United States, April 12th, 1861, and subsequently dismissed by the Attorney-General at the December term, 1864, of said Court. Said' survey embraces the lot in question, but no patent has yet issued.
Although plaintiff has the elder grant (which was also first presented to the Board of Land Commissioners for confirmation,) and is in most respects prior in point of time, yet the defendant insists, that, under the principles advanced in Waterman v. Smith, 13 Cal. 373, his title is to be preferred, because
Without deciding the question, we shall, for the purposes of this decision, assume that the defendant’s location, on dis
The grant in question in Waterman v. Smith was located by the Executive Department of the Government in pursuance of the provisions of the Act of Congress of March 3d, 1851. But the system of locating grants was essentially modified by the Act of June 14th, 1860, and the surveys of the grants in controversy in this case were finally confirmed under the provisions of that Act. The Act provides that, when' the Surveyor-General has completed and platted the survey of any confirmed claim, he shall give notice of the fact in some newspaper for a prescribed period of time, and that during that time the survey and plat shall remain in his office subject to inspection ; that upon the application of any party interested, the said survey and plat may, upon the order of the District Court of the district within which the land is situate, be returned into said “ District Court for examination and adjudication that notice shall be given in a mode prescribed “ to all parties interested, that objection has been made to such survey and location, and admonishing all parties in interest to intervene for the protection of such interest;” that said parties in interest, after having intervened, may proceed to take testimony and contest the same, and that, “ on hearing the allegations and proofs, the Court shall render judgment thereon; and if, in its opinion, the location and survey are erroneous, it is authorized to set aside and annul the same, or correct and modify it.” It then provides for an appeal from the decree finally confirming the survey. (IS TJ. S. Stats, at Large, 33, 34.) The proceedings had under this Act after the return of the survey and plat, are strictly judicial in their character. The parties interested have an opportunity to be heard, and those appearing actually are heard, and their rights litigated
“It is objected to this location of the grant that it places it on land which has already been confirmed, surveyed and patented to the representatives of Castro, The answer to this is, that we are called on in this proceeding to determine where' the grant to the present claimant ought rightfully to be located, who wTas not a party to any of the proceedings by which Castro’s claim was confirmed, surveyed or patented, and is not therefore bound or concluded by either the decree, survey, or patent, as expressly enacted by the fifteenth section of the Act of 1851. For Castro’s survey was made before the Act of 1860, and there was no opportunity for this claimant to con*661 test its location. And lastly it may be added, that the holder of the Castro claim has made himself a party to the present proceeding, and must be bound by its result.”
Row the representative of the Castro claim held' a subsequent grant, which was first finally segregated and patented. Under the Act of 1860, he made himself a party to the subsequent proceedings, for locating a prior grant to Sanchez, which was, notwithstanding his opposition, located in part upon lands already patented to him. This is precisely the case under consideration, and if Castro’s representatives by making himself a party to the proceedings, “ must be bound by its results,” as observed by Mr. Justice Miller—and we think he must—then defendant, Semple, is concluded in this case. Plaintiff’s is the elder grant, and it was first presented for confirmation to the Board of Land Commissioners. Both claims having been surveyed so as not to interfere, they were ordered to be returned into Court, “ for examination and adjudication,” on application of defendant. On leave of the Court he intervened in plaintiff’s proceedings; had plaintiff’s survey—and in another proceeding his own—set aside, and new surveys ordered; and succeeded in getting his second survey first confirmed. Afterwards plaintiff’s survey came up for determination and although embracing the lot in question, which had already been included in defendant’s survey, on motion of plaintiff’s counsel to confirm his survey, the Court rendered a “ decree finally confirming, approving and adopting the said survey as the true, proper and correct survey of the said land finally confirmed as the Jimeno Rancho, 1 Charles D. Semple, iutervenor, in person appearing in Court and consenting to said motion and official survey.’ ” And said defendant, Semple, also afterwards on the same day “ waived in writing, under his hand, all right to appeal from said decree.” This must be regarded as an adjudication between the parties, and with the consent of defendant, that the plaintiff’s prior grant is properly located ; and that the defendant’s subsequent grant to the extent of the interference was improperly located, and