85 Cal. 448 | Cal. | 1890
Lead Opinion
This case was first heard and an opinion thereon filed in Department. Subsequently a rehearing in Bank was granted, and after argument a decision was filed January 2, 1890. This was followed by divers petitions for a second rehearing, representing that tile case was one of great public importance, involving the validity of land titles to a very considerable, and what is now a very valuable, portion of the city of San Francisco; and in view of the alleged importance of the questions involved, a rehearing was granted. Upon this hearing elaborate oral arguments have been made, and all who desired have been permitted to file printed briefs and arguments, all of which have been carefully considered, and we are still constrained to adhere to the conclusion first reached in Bank, and announced in the opinion written by Mr. Justice Paterson, post, p. 474.
This is not, as assumed on behalf of appellant, a case of conflict between two parties, both claiming under the
The defendant, and those who are situate like him, and on whose behalf argument is here made, claim under the pueblo of San Francisco. That pueblo claimed and derived its title, not under the government of the United States, but under the government of Mexico. Its grant was not a special one, made by the supreme legislative authority of the sovereign state, but was one made by the ministerial officers of the government, under, and necessarily in conformity with, its general laws. Necessarily so, for if the ministerial officers exceeded the authority conferred upon them by law, then their act was void. It must, therefore, be assumed that the grant was only such as the ministerial officers were authorized by law to make.
The patent of the United States, invoked by the appellant, is not an original grant, does not emanate from the source of title, but is a mere acknowledgment that the pueblo had title from the Mexican government, — the predecessor of the United States,'—and a release of all claim on the part of the United States to the property found by its judicial tribunals to have been so vested in the pueblo. The patent was not necessary to invest the pueblo with title, for its title existed at the cession of the territory. It was recognized by the decree of final confirmation (cited in the former opinion), and as ¿shown by that decree it was of a fixed and definite quantity of land, -with its boundary on three sides fixed and established by the terms of the original grant, and marked by the hand of nature as limited by the shores of the sea. It required to be surveyed, for one purpose only,— that of so fixing and establishing the boundary which was left undetermined by the original grant, as to secure
In the case of this pueblo, it undoubtedly became necessary, in order to secure quantity, to make a general survey of the whole, and also a survey of the several parcels within the exterior boundaries, which were confessedly held by adverse claimants holding under paramount title; but this necessity and power existed only for the purpose of ascertaining and determining the one undetermined and uncertain boundary line, — that on the south. The right to make that survey, and establish that boundary, belonged to the political department of the government, and could not be exercised by the courts. But the court could ascertain and fix the position of the natural boundaries wdiich were designated in the grant, and did do so. While the courts could not and cannot interfere with the action of the political department of the government in fixing the one boundary wdiich was left undetermined by the grant as finally confirmed, they must determine whether the prior rights of third parties have been interfered with by the survey and patent issued thereon. While the survey and patent are conclusive upon the courts in actions of ejectment, they are so only when not in conflict wdth the prior rights of third persons, and in such actions their inconclusiveness can be asserted to the extent essential for the protection of such prior rights. (Moore v. Wilkinson, 13 Cal. 486.)
The patent, so far as it is construed as a conveyance, is to be construed only as a quitclaim, releasing to the patentee such interest as the United States possessed in
In Smelting Company v. Kemp, 104 U. S. 641, the supreme court of the United States, in passing upon this question of collateral attack upon a patent in an action of ejectment, says: “If they [the lands embraced in the patent] never were public property, or had previously been 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 of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a
In the later case of Wright v. Roseberry, 121 U. S. 519, the same cóurt again considers the question, and not only quotes and approves the foregoing, but also the following passage: “A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale, or dedicated to special purposes, or had been previously transferred to others. In establishing any of these particulars, the judgment of the department upon matters properly before it is not assailed, nor is the regularity of its proceedings called into question; but its authority to act at all is denied, and shown never to have existed.”
And still later, in Doolan v. Carr, 125 U. S. 618, the same court again says: “A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lauds, .... or that they had been previously transferred to others.”
In view of these recent and oft-repeated decisions of the court of last resort to which the question can be carried, there can no longer be a doubt about the right of the courts, even in actions of ejectment, when the parties present rely, as in this case, upon a patent from the United States, to inquire as to whether or not the description given in the patent includes land which the government or its officers had no power to convey.
This being so, then, when the patent was offered in this case, the plaintiff had a right to challenge its validity,
Was it outside of that boundary? It is found and at the argument admitted to be below ordinary high-water marie, in a navigable arm of the bay of San Francisco. If so, it was outside the boundary line of the grant, under the laws of the country by which the grant was made. Under the laws of that country, these lands below ordinary high-water mark constituted the beach, or seashore, and “ with respect to the ownership, it pertains to the nation which is mistress of the country of which it forms a part, and, wdth respect to use, to all men.” (Leyes, 3, p. 6, tit. 28, part 3.) The king could not alienate such lands. (See New Orleans v. United States, 10 Pet. 726, and other authorities cited by Mr. Justice Paterson.) That the government did not alienate them is established by the decree of confirmation quoted in the former opinion, by which decree it is expressly declared that the lands so granted, and of which confirmation is decreed, are bounded on the “ north and the east by -the bay of San Francisco, and
Again, the land in dispute was not land which the government had the power to grant at the date of the filing of the petition for confirmation. Not having been granted by the Mexican government before the conquest, it remained the property of the sovereign. The petition for confirmation was not filed until long after the admission of California into the Union. Immediately upon such admission, the state, by virtue of her sovereignty, became seised of the land, the same being tideland of the bay of San Francisco. The land did not, therefore, belong to the United States, and even Congress had no power to grant it to another. Quoad this land, the patent is absolutely void, for the reason given in Polk’s Lessee v. Wendal, 9 Cranch, 87, cited on behalf of the appellant; the government in whose behalf the patent was issued had no title to the thing granted.
It is claimed on behalf of appellant that the doctrine of stare decisis should be applied to this case, and that# when so applied, the question here involved is res adjudicata, under the decision of this court in People v. San Francisco, 75 Cal. 389. We do not think so. That case was decided on demurrer to a complaint which admitted on its face that the patent was in “ due form of law”; was based upon a survey certified to have been made in strict conformity with instructions of the commissioner of the general land-office, which instructions had been given under the directions of the Secretary of the Interior; was issued under the great seal of the United States, and purported, by virtue of the authority of said decree of confirmation, and in pursuance thereof, to grant and
But it is insisted that the case did not go off upon the proposition that these allegations must be taken as true, but the court considered and determined the broad question of the conclusiveness of the patent, as the same is here and now presented. This seems to have been the course pursued by the court, and it furnishes the strongest possible argument for refusing to accept the opinion then given as conclusive of the case at bar, for it was one not necessary to the decision of-the case.
But disregarding that point, the court was not then convincing in its reasoning, or happy in its selection of authorities in support thereof. Neither of the three
One of the cases upon which the court rests it conclusion in People v. San Francisco, 75 Cal. 389, is that of Cassidy v. Carr, 48 Cal. 339. In that case the claimant held under a Mexican grant, held to be a perfect grant. It was confirmed to the extent of two leagues, and no more, although he claimed to have received juridical possession of a larger quantity. He took no appeal. In due time his two leagues were surveyed off, the survey approved, and patent issued. He accepted the patent, and then the question in the action was, whether he could still claim title to lands not included within the survey given in the patent, but claimed to have been included within the limits of his original juridical possession. The court held, that, having accepted the patent, he was estopped from claiming lands outside the boundaries of the description therein given. The question was so different from the c*ne here involved that we are unable to see how the decision constitutes any authority upon this question whatever.
In Moore v. Wilkinson, 13 Cal. 487, another of the cases relied upon in support of that opinion, the grant was for merely four square leagues, but within a tract almost without limit as to extent or a western boundary, and the order was that “the judge who may give posses
Chipley v. Farris, 45 Cal. 539, is another of the cases cited in support of that decision. It, like that of Cassidy v. Carr, was a case where the grantee, having received and accepted his patent, was seeking to claim lands excluded from the patent. It was not authority for the case in which it was cited, and is not in this.
Teschemacher v. Thompson, 18 Cal. 11, 79 Am. Dec. 151, is also cited and relied upon as authority to the conclusiveness of the patent, and also that the Mexican government had power and authority to make grants of these lands. As we read that case, it does not support either of these propositions. The lands in controversy there were not within the boundaries of or near any pueblo or other
The same may be said of Ward v. Mulford, 32 Cal. 365, also cited in support of that decision. It was almost on all fours with Teschemacher v. Thompson, and was decided on the authority of that case. In that case, as in'the other, both the grant and the survey thereof had been confirmed by the judicial department of the government, and included the salt marsh. The court properly held that where the Mexican government had, before the conquest, granted those lands, the rights acquired by California by virtue of her sovereignty were subordinate to the grants so made. There is nothing in the conclusion reached now, or on the former hearing of this case in Bank, in conflict with these authorities. The difference is found in the facts. There it was adjudged in and by the decree of confirmation that the
The only remaining case cited in support of the opinion in People v. San Francisco is that of Leese v. Clark, 18 Cal. 574, and 20 Cal. 425. All that was decided in that case bearing upon the case at bar was, that “the defendants, taking whatever interest they possess in subordination to the future action of the government .... in determining the location of the older grant, are in no position to question these proceedings” ; and that “the term 'third persons’ refers not to all persons other than the United States and the claimants, but to those holding independent titles arising previous to the acquisition of the country.” Both of these propositions may be accepted as true, but they do not militate against the view we have taken of this case. The plaintiffs in this case, it is true, do not claim by virtue of an older grant from the Mexican government. What they claim is, that the locus in quo was never granted, and under its laws could not have been granted, by the ministerial officers of the government of Mexico; that this fact is established, not only by reference to the laws of Mexico, but also by the final adjudication of the courts of the United States in and by the decree of confirmation of the grant which was made; that not having been granted, it remained, at the date of the conquest, the property of the nation, and passed as such to the United States; that the United States having made no grant thereof, upon the admission of California into the Union, September 9, 1850, it became the property of the state by virtue of her sovereignty, and the United States could not thereafter make a valid grant thereof. The state did not take in subordination to the older grant, and her rights were not postponed until the settlement of the rights of the
Teschemacher v. Thompson and Ward v. Mulford maybe accepted as authority for the proposition that the Mexican government could, and sometimes did, make grants covering the salt marsh lying between the high lands and the seashore,—the lands between the high-water mark of extraordinary tides at the full of the moon, or spring-tides, and the ordinary high-water mark of the tides in their daily ebb and flow; and even sometimes extended the grant'below ordinary high-water mark; but-that fact does not prove that she could or ever did make grants of lands lying on the seashore, below the ordinary high-ioater mark of the daily ebb and flow of the tides, within the boundaries of a pueblo. In People v. San Francisco the court says: “No authority has been cited in support of the statement that, by the law of Mexico, tide-lands could not be included within pueblo lands.” That may have been true, but the court failed to mark the distinction between “ tide-land,= ” and “ seashore ” ; between lands made productive by the occasional overflow of the tides, and lands made barren by the regular and daily overflow thereof. Of the one it had before it two examples of the fact, established by decree of the federal courts, that the Mexican government could and sometimes did grant them; of the other, no example has ever been furnished where the government made such a grant within-a pueblo. That it did not make a grant of such lands in this case is attested by the decree of confirmation. In support of the proposition that a pueblo could not own laud below ordinary high-water mark, the court was then cited -to, and we again cite, Dwinelle’s Colonial History of San Francisco, addend. 42; Wheeler’s Land Titles of San Francisco, 13; Civ. Code of Mexico, art. 802; Domat, b- 7, tit. 8, sec. 1, art. 1; Hall’s Mexican Law,
There being no grant to which the rights of the state were subordinate, and to the settlement of which the rights of the state were postponed, she became vested with the title immediately upon her admission into the Union. Thereafter there was no power in the government of the United States to make a grant of the land, and the act of its ministerial officers in including it within the survey and patent of a grant theretofore made was in excess of their jurisdiction, in violation of the decree of confirmation, and void. The patent, so far as these lands were concerned, was in effect but the execution of the decree of confirmation. (United States v. Minor, 114 U. S. 242.) “ When a decree gives the boundaries of a tract to which the claim is confirmed with precision, and has become final, it is conclusive not only on the question of title, but also as to the boundaries which it specifies.” (United States v. Hancock, 133 U. S. 196.) And it was the duty of the surveyor in making survey of the claim finally confirmed to “ follow the decree of confirmation as closely as practicable, whenever [and wherever] such decree designates the specific boundaries of the claim.” (United States v. Hancock, 133 U. S. 196; sec. 7 of the Act of Congress of July 1, 1864; 13 Stats. 334.)
Surely if a ministerial officer, in executing a decree which fixes specific boundaries, includes land excluded by the decree from those boundaries, his act can have no force or validity as a conveyance, and especially so if the party executing the conveyance has no title.
As in Jones v. Martin, 13 Saw. 317, so here, the meander line down the coast was necessary for the purpose of ascertaining quantity; “but when done, it was the shore line as fixed by nature and shown upon the
But there is still another aspect in which this case may he viewed. We have spoken of the rights of this pueblo as a pre-existing title.
That pre-existing title was never a fee under the Mexican law. A grant to a pueblo was not “a private land grant ” in the sense which took title out of the state. It was the mere vesting in the pueblo, a political subdivision of the state, of the use of the land in trust for the benefit of the inhabitants thereof, and with power, as the representative of the state, to make grants which should vest title in private ownership of solares, or house-lots, and suertes, or sowing-lots, to settlers; the remainder to remain vacant,to the end that gifts thereof might be made to new settlers. These grants, as they are generally called, did not deprive the state itself of the right, at any subsequent period, of making what are technically denominated “private land grants,” vesting title in natural persons, of any portion of the lands lying within the four leagues of the pueblo which had not already passed into private ownership; and this power on the part of the state was not unfrequently used. It was notably so used, in several instances, within the pueblo of San Francisco, and the grants so made by the state within the pueblo have been recognized and confirmed. And as hereinbefore shown, the power of the pueblo to make grants that should vest title in private ownership, unlike that of the state, did not extend to that of making grants upon the seashore. The fee of all the land which had not passed into private ownership remained always in the government, and that upon the seashore was unencumbered by the trust or power conferred upon the pueblo. The result was, that upon the conquest, all the property upon this peninsula which had not already passed into private ownership became part of the public domain of the United States, and subject to the same
It is claimed on behalf of appellant that quantity was the controlling element in the decree of confirmation. It is enough to say that while quantity was required, and the claimant was entitled to quantity, it was no more controlling than the natural boundaries on the north, east, and west fixed by the decree, and the decree itself gave leave to go south for quantity. But it did not give leave to go north, east, or west for quantity, even if the government had possessed lands of its own in those directions, which it had power to appropriate to make up quantity.
In view of what was said in the former opinion, which this is not intended either to supersede or modify, but merely to supplement, it does not seem necessary to further extend this discussion. After a careful review of all the authorities cited and' arguments made, we still adhere to the conclusion reached in said former opinion in Bank, that the judgment of the court below must be affirmed.
So ordered.
Concurrence Opinion
In whatever point of view this case may be regarded, I am of opinion that th,e evidence was admissible to show that the land in controversy was situated below the ordinary high-water mark of the- bay of San Francisco, as it existed on the seventh day of July, 1846.
Whatever the right of the pueblo was to the land, for which confirmation was sought by the city of San Francisco, it was never held to extend below the ordinary high-water mark of the bay. It was so adjudged by the decree of confirmation entered in May, 1865. The act of Congress of March 8, 1865, ratified the decree as it was made and entered.
If there was no judicial determination binding on the state fixing a different boundary from that of high-water mark as determined by the decree, the evidence above referred to, in my judgment, was clearly admissible. As the decree adjudges to the city nothing beyond high-water mark, evidence was admissible to locate this line so as to show that the land sued for was outside of that line.
In my opinion, the patent which sets forth the decree shows no different determination as to this line from that set forth in the decree itself. The patent shows the only other determination insisted on; and this, when rightly construed, does not vary from the decree. To rightly construe the patent, the whole of it must be taken into view; and regarding all its parts, high-water mark should be held to be the controlling call, to which course and distance must yield. The patent is but the execution of the decree. (United States v. Minor, 114 U. S. 241, 242.) The survey and the patent are made to carry-out its provisions. The maxim that public officers are presumed to do their duty comes in aid of the view that the line of high-water mark is the controlling call.
I adhere to my concurrence in the opinion of Justice Paterson, delivered on the previous hearing of this case, and will add, that I perceive nothing in the opinion of Justice Fox inconsistent with the opinion of Justice Paterson. With these views, I must hold that the judgment should be affirmed.
Dissenting Opinion
I dissent. I could not express my views of the question involved in an original opinion as satisfactorily to myself, and certainly not as satisfactorily to others, as they are expressed in the deliberate opinion of this court delivered by Mr. Justice McKinstry in the recent case of People v. San Francisco, 75 Cal. 338. The reasoning of that opinion, and the authorities therein cited, are, to my mind, unanswerable and conclusive. It is said that in that opinion the court was not happy in its selection of authorities, and that it ought to have been controlled by Doolan v. Carr, 125 U. S. 618, Wright v. Roseberry, 121 U. S. 488, and Smelting Co. v. Kemp, 104 U. S. 641. But it happens that all the authorities cited in People v. San Francisco dealt with the very matters involved in this case,—that is, with rights claimed under Mexican grants, with the conclusiveness of United States surveys and patents in such cases, and with powers exercised under the act of March 3, 1851, and subsequent acts, to ascertain and settle such claims in the state of California. On the other hand, Doolan v. Carr merely decides that the United States land department has no power to issue a patent to a railroad company for land as “ public land ” which lies within a Mexican grant. Wright v. Roseberry merely decides that
Moreover, the case of People v. San Francisco was decided after the fullest argument and consideration, having been heard twice, and as it established a rule of property, it is a case to which, in my judgment, the rule of stare decises should be strictly applied. I think, therefore, that the judgment in the case at bar should be reversed.
Beatty, C. J., and Works, J., concurred in the dissenting opinion of Justice McFarland.
The following is the opinion above referred to, delivered upon the first hearing in Bank on the 2d of January, 1890: —
This is an action of ejectment to. recover a block of land lying below ordinary high tide in the city and county of San Francisco, and being a portion of that part of San Francisco known as “ Mission Creek lands.” The defendant claims under a patent of the United States to the city, issued June 20, 1884, in satisfaction of a pueblo grant of four square leagues, which was confirmed by the decree of the United States circuit court, May 18, 1865. The tract confirmed by this decree is described as “a tract situated within the
Appellant contends that a party in an ejectment suit cannot question the validity of a United States patent
The question involved in this case is, whether the officers of the land department had power to patent land outside of the natural boundaries given in the decree of confirmation. If the land department had no jurisdiction to act, if any portion of the land described in the patent was not a part of the public domain, or if there was no legislation authorizing its conve)ance by the land department, then, under the decisions of the United States supreme court in Doolan v. Carr, 125 U. S. 618, and other cases therein cited, the patent is inoperative to pass the title; and objection can be taken to it on these grounds at any time, and in any form of action.
Upon her admission into the Union, the state of California became the owner, by virtue of her sovereignty, of all tide-water lands within her borders lying below high-w'ater mark, except such as had been disposed of by the Mexican government prior to the treaty of Guadalupe Hidalgo. The territory acquired from Mexico was by the express terms of that treaty taken by the United States subject to the trust of protecting all legal and equitable interests of prior grantees under the former sovereign. The state, of course, could not take more than the United States received; and the claim of the state, by virtue of her admission and her sovereignty, was subordinate to such prior equities, and subject to the power of the federal government to confirm prior Mexican grants, and to locate grants of specific quantities of land within the exterior boundaries of larger tracts. (Lux v. Haggin, 69 Cal. 255.) The
The government of the United States is in duty bound to carry into effect the stipulations contained in the treaty of Guadalupe Hidalgo; but the power to do so must be exercised in the manner provided by Congress; and it would seem that when Congress vested in the federal courts the power to determine the rights of Mexican claimants, and provided (section 7) that in making the survey the surveyor-general should “ follow the decree of confirmation as closely as practicable, whenever such decree designates the specific boundaries,” and that “it shall be the duty of the commissioner of the general land-office to require a substantial compliance with the directions of the section before approving any survey and plat forwarded to him,” that the officers of the land department are, as to such lands, merely auxiliary to the
These cases, to be sure, were direct appeals to the supreme court of the United States; but they bear directly upon the question of the authority of the officers of the land department to patent lands outside of the boundaries of the decree of confirmation, and that is the question here. If the land granted is not within the power of the officer, the grant or patent is invalid. In Polk’s Lessee v. Wendal, 9 Cranch, 87, Chief Justice Marshall said: “ There are cases in which a grant is absolutely void, as where the state had no title to the thing granted, or where the officer had no authority to issue the grant.” In New Orleans v. United States, 10 Pet. 662, 731, the court said: “ It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive, and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee.” So in this case, unless Congress has given the land department power to dispose of land belonging to the state of California, — lands lying outside of the boundaries of the decree, ■—■ a patent to land shown to be outside of such decree is invalid. In Wright v. Roseberry, 121 U. S. 488, it appeared that land which had been previously granted to the state by the swamp-land act was held by the defendant under a patent from the United States issued on a pre-emption claim. The court held the patent to be invalid as a conveyance, because the land was not, at the time it was patented to
Under the laws of Mexico, existing at the time of the treaty, lands above and within one hundred and ninety varas of the seashore could not be held in private ownership (Wheeler on Land Titles, 13); and the land officers of the United States could not, in the absence of a judicial adjudication that such land belonged to a Mexican claimant, convey to him. “All that place is called ‘sea-beach’ which is covered by the waters of the sea when at its highest point during all the year.” (Hall’s Mex. Law, 448.) The king could not alienate such lands. (New Orleans v. United States, 10 Pet. 726; Milne v. Girodeau, 12 La. 324.) The shore of the sea is that part of the land covered by water in its greatest ordinary flux, the ports, bays, roadsteads, and gulfs, and the rivers, although they may not be navigable (Mission Creek is navigable), their beds, mouths, and the salt marshes, (Hall's Mex. Law, 448-503; Mex. Civ. Code, art. 802.)
A patent cannot be issued by the land department to a person not named in the decree, because the courts, and not the department, are given the power to determine the person to whom the lands were granted by Mexico. If the judgment of the court should decree that the grant is a forgery, and therefore void, and the land department should patent the land claimed, the action of the department would be shown to be void upon the production of the decree, because Congress has given to the courts jurisdiction to determine the validity or invalidity of the claim. Of course, in cases where the court, by its decree, has established the validity of the grant, and a tract of a certain number of acres has been confirmed to be located within the exterior limits of a larger tract, it is left to the officers of the land
It is true, the patents, in some cases, seem to have gone beyond the boundaries of the deseño, and yet they were held not to be void; but it was so held in each case because the parties attacking the patent had no title to land lying outside of the exterior boundaries, and were not, therefore, in a position to attack the validity of the patent. In Doolan v. Carr the court held (only Waite, C. J., dissenting), that one who had not even connected himself with the paramount source of title might question the validity of the patent. (125 U. S. 618.) In Ward v. Mulford, 32 Cal. 369, the district court, as it had the right to do under the law then applicable to its
In Chipley v. Farris, 45 Cal. 539, the patent covered only a portion of the tract described in the decree, but not the land in controversy. Plaintiff had no legal title, because no patent had been issued to him under the decree. The question as to the power of the land department to patent lands outside of the boundaries of the decree was not involved. Within the boundaries of the decree it may act. Without the boundaries it has no jurisdiction. Furthermore, in that case, the descriptions were both by metes and bounds, and it is expressly admitted by respondent in that case, in his written points, that if the side lines of the tract in controversy were the seashore, a different rule wrnuld apply. In Teschemacher v. Thompson, 18 Cal. 11, 79 Am. Dec. 151, the court assumed that the grant was of “ a specific quantity lying in an area of larger extent.” (Page 24.) In Cassidy v. Carr, 48 Cal. 339, there was no conflict between the decree and the patent. The survey and patent, as the court said, simply carried out the decree, and were conclusive between the parties. Of course, where “ the survey and patent but carry out the decree,” the patent is conclusive between the parties. In none of the cases cited is the question of the power of the officer to issue a patent for land not embraced in the decree considered. It does not follow logically that because the patent is conclusive in all cases where the land department had jurisdiction it is conclusive as to all lands lying without the boundaries of the decree, as well as within them. The surveyor cannot incorporate into the decree lands not confirmed, nor can he shift on the surface of the earth the natural boundaries, — mountains, bays, or oceans. The presumption always is, doubtless, that the metes and
In Doolan v. Carr, 125 U. S. 618, the court said: “ There is no question as to the principle that where the officers of the government have issued a patent in due form of law, which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law, as distinguished from suits in equity, subject, however, at all times, to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But if those officers acted without authority, if the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to exercise such authority, then their act was void,— void for want of power in them to act on the subject-matter of the patent, — not merely voidable. In which latter case, if the circumstances justified such a decree, a direct proceeding, with proper averments and evidence, would be required to establish that it was voidable, and should therefore be avoided. The distinction is a manifest one, although the circumstances that enter into it are not always easily defined. It is nevertheless
Now, if it be true, as a matter of law, that the surveyor-general had no power to include in a survey any land the claim to which was not confirmed by the decree of the circuit court, and that neither the commissioner of the land-office nor the Secretary of the Interior had any power to direct or approve such a survey, the only question is, which of the west, north, and east boundary lines respectively shall prevail,—those given in the decree, and recited in the patent, or those given in the survey, and employed in the granting clause of the patent? In determining this question, there is no violation of the principles which forbid a collateral attack upon such instruments. There is no such attack. It becomes simply a question of construction. Both descriptions are upon the face of the patent, and the case is one in which the plaintiffs claim that the defendant’s title depends upon a deed describing the property by natural boundaries, and also by metes and bounds; that the description by metes and bounds includes land not included within the natural boundaries, and which defendant claims to own, but which is in fact owned by
But whether we consider it as a collateral attack or a mere matter of construction, it is clear, we think, that under the decisions of the supreme court of the United States in Doolan v. Carr, 125 U. S. 618, and other cases there, cited, “ want of power in an officer of the land-office to issue a land patent may be shown in an action at law by extrinsic evidence, although the patent has been issued with all the forms of law required for a
Works, J., Fox, J., and Sharpstein, J., concurred.
Thornton, J., concurred in the judgment.
McFarland, J., dissented.
