38 F. 1 | U.S. Circuit Court for the District of Northern California | 1889
(Field, Justice, concurring.j This is a bill in equity, filed by the attorney general on behalf of'the United States, at the request of the secretary of the interior, to obtain a decree of the court 'vacating and annulling the listing over to the state of certain lands selected
The lands in question are odd sections, lying within tho 20-mile limit of the grant of lands made to the Central Pacific Railroad Company, to aid in the construction of its road, by .the act of congress of July 1, 1862, and the aet of 1864 amending said act. 12 St. p. 492, § 3; 13 St. p. 358, § 4. Part of the lands lie in township 3 S., range 3 E., Mt. Diablo Base and Meridian, and a part in township 2 S., range 1 E’. The lands in township 3, range 3, were surveyed in the field in August, 1862, and sectionized, and a plat thereof was made and approved by tho surveyor general of California, December 24, 1862, but a duly-certified copy of the plat was not filed in the land-office of the district till June 4, 1869. The certified copy of the plat then filed is regarded by the department as the official plat, and the date of its filing, June 4, 1869, as the date of the survey. On December 28, 1865, a plat of the township, approved by the surveyor general December 18, 1865, was filed in the district land-office, but this plat is not regarded by tho department as official, or as indicating the date of the official survey. Township 2 S., range 1 E., was first surveyed in the field in March, 1865, and an approved plat thereof first filed in the district land-office June 10, 1865. In accordance with the provisions of said acts of 1862 and 1864, tho railroad company filed in the department of the interior, on December 8, 1864, its map designating the general route of the road, and on December 23, 1864, the secretary of the interior, in pursuance of the provisions of said acts, issued an order withdrawing the said lands for the distance of 25 miles on each side of the line of said road so designated, “ from sale,
“The lands of which confirmation are hereby made of ‘Las Pocitas,’ are bounded and described as follows, to-wit: On the nortli by the Lomas de las Cuevas; on the east by the Sierra de Buenos Ayres; on the south by the dividing line of the establishment of San Jose; and on the west by the rancho of Don Jose Dolores Pacheco, containing in all two square leagues, a little more Or less. Reference for further description to be had to the map marked ‘ C,’ and filed in the cause.”
The exterior boundaries contained from 10 to 12 leagues. The district court, on appeal, affirmed the decree of the board, February 18, 1859, and the supreme court of the United States finally confirmed the grant on appeal in January, 1861.
“ The land of which confirmation is hereby made is known as ‘ Las Pocitas, ’ and is bounded and described' as follows, to-wit: On the north by the Lomas de las Cuevas; on the east by the Sierra de Buenos Ayres; on the south by the dividing line of the establishment of San Jose; and on the west by the rancho of Don Jose Dolores Pacheco, containing in all two square leagues, provided that quantity be contained within the boundaries named, and if less than that quantity be contained therein, then the less quantity is hereby confirmed. Reference for further description to be had to the map marked ‘C,’ filed in this case.”
After confirmation by the board, and before the appeal, at the request of Livermore, then the owner of the grant, on April 5,1854, William J. Lewis, a deputy-surveyor, was directed by the United States surveyor general of California to make a survey. He was directed to notify any adjoining claimants who mightbe interested, of the time and place when any line would be run; to note any objections, and report any protest that might be made. He made the survey in accordance with the instructions. Livermore being present, and pointing out his corners and boundaries; and the deputy-surveyor reported that the owner, Liver-more, “expressed himself entirely satisfied with the boundaries as I surveyed them, and as represented in the accompanying map.” He reports that he has no doubt that “ the'.survey as made fulfills the intentions of the Mexican grant, as derived from the terms of the grant.” The neigh
The lands in controversy situate in said township 2, range 1, were selected in advance of any survey in the field by the United States surveyor general, upon surveys made by the county surveyors of the state, between July 28, 1862, and July 20, 1863. Certificates of sale were issued to purchasers by the state for a part between March 2, 1863, and January 25, 1864,- and for the remainder, between February 20, and March 14, 1865. These selections were entered by the register of the land-office on June 12, 1865. A part was certified over to the state by the secretary of the interior on September 8, 1870, and the rest on March 11, 1871. These lands were also afterwards patented to the purchasers by the state. The listings over to the state were all after the final approval of the two square league survey of the Rancho Las Pocitas, which was on June 6, 1871; also after the filing of the map of general route of the road by the railroad company in December,' 1864, and the withdrawal by the secretary of the interior in January, 1865; as well as after the filing of the map of the definite location of the Western Pacific Railroad Company, on February 1, 1870. But the surveys and' selections and issue of certificates of purchase by the state were before the said dates of June 6, 1871, and Februáry 1, 1870. The Western Pacific Railroad was completed in accordance with the terms of the several acts of congress relating to the subject, on or before December .29,1869, and the company thereby became entitled to the lands granted. A contest thereupon immediately arose before the department of.the interior, between the railroad company and the settlers who settled subsequently to the grants on the odd sections, as to what lands were included by the grant, and this was supposed to depend upon the exterior boundaries of the Las Pocitas grant. This matter was earnestly litigated before the department, a test case, (Arthur St. Clair v. The Western Pacific Railroad Company,) having been made by stipulation with the settlers, until January, 1874, when it was decided in favor of the railroad company. Soon thereafter, on May 12, 1874, the land agent of the company presented a list of lands for which the company claimed patents, including the lands in controversy, when it was discovered that the latter had been listed over to the state by mistake, upon the state selections hereinbefore referred to, as indemnity lands for losses of sections 16 and 36 granted for school purposes, and that they were claimed by purchasers from the state. The claim of the company for patents to these lands was vigorously prosecuted by the company, with varying results; until it was finally determined by the secretary of the interior, upon petition for reconsideration by the company, filed April 22, 1880, that the company was entitled to the lands; but he declined to complicate matters by issuing patents until the question of right should be settled by the courts. Thereupon, and for the purpose of having the question - authoritatively adjudicated, upon his request the bill in this
As we have seen from the facts stated, the lands in question are odd sections within the limits prescribed by the act of 1862, granting lands to aid the construction of the Western Pacific Railroad. The Mexican grant called “Las Pocitas” ivas a float — a grant of two leagues within exterior boundaries embracing ten or inore leagues, unlocated both at the date of the act of 1862, and at the times when the claims of the state to the land in question were initiated. After the rights of both parties, whatever they were, had attached, this grant was finally located and patented so as to exclude the lands in controversy. There was then ample land other than these lands to satisfy this float, both at the time of the passage of the act of 1862, and at the time when the right of the railroad
The only remaining question, therefore, is: Had any such right, as is excepted by the statute, legally attached in favor of the state in the lands in question, or any of them, on January 30, 1865? It is not pretended that any other right than that under the state selection had attached. It has been settled by numerous decisions in the state of California, and affirmed by the United States supreme court, that the state could acquire no right whatever by a selection of lieu lands made before the lands have been surveyed by the United States; and that a selection made upon unsurveyed lands is utterly void. Grogan v. Knight, 27 Cal. 516; Railroad Co. v. Robinson, 49 Cal. 446, 448; Chant v. Reynolds, Id. 217; Young v. Shinn, 48 Cal. 26; Hastings v. Devlin, 40 Cal. 358; Toland v. Mandell, 38 Cal. 31, 41; Aurrecoechea v. Sinclair, 60 Cal. 549; Collins v. Bartlett, 44 Cal. 371, 380; Smith v. Athern, 34 Cal. 506; Aurrecoechea v. Bangs, 114 U. S. 383, 5 Sup. Ct. Rep. 892; Barnard’s Heirs v. Ashley's Heirs, 18 How. 46. None of the lands in question situate in township 2 S., range 1 E., as we have seen, were surveyed in the field by authority of the United States till the month of March, 1865, and the approved plats were not filed in the district land-office till June 10, 1865. The applications of the state locating agent to locate all said lands in township 2 S. were made and entered in the office of the register of the land-office on the 12th and 13th of June, 1865; the register having-refused to recognize applications made in 1862 and 1863 upon surveys made under authority of the state. As we have seen, the acts of the state in making selections prior to the United States survey in March, 1865; and the filing of the plat in the land-office in June, were utterly void, and no rights attached to the lands or any of them by virtue of those acts performed before said survey in March. On January 30th, at latest, the grant to the railroad company attached in such maimer that it could not be thereafter limited or divested; and the absolute right to the lands by the completion of the road and filing the map of definite location indefeasibly vested in the company. There can be no doubt, therefore, that the complainants should have a decree that they are entitled to the lands in said township 2 S. The lands in question lying in township 3 S., stand in no different situation from those in township 2 S., except that they were surveyed in the field by the United States deputy-surveyor in August, 1862, and a plat thereof was made and approved by the surveyor general on December 24, 1862; but a certified
On another ground the state selections in question are clearly void, and no interest attached to the lands selected in favor of the state. By the express terms of the act of 1853, under which the selections were made,' “lands reserved by competent authority,” “lands claimed under any foreign grant, or title, and the mineral lands,” are excepted from the operation of the act. Consequently, neither such “reserved lands,” lands claimed under Mexican grants, nor mineral lands could be legally selected in lieu of school sections lost, or otherwise disposed of. And this was manifestly the view of congress, for when it passed the act of 1866, to quiet titles in California by confirming void selections, it also expressly excepted from confirmation “any land held or claimed under any valid Mexican or Spanish grant.” 14 St. p. 218, § 1; That selections of lands so claimed under Spanish grants were void, and created no right whatever in the state, is directly decided and settled by the supreme court of the United States in cases arising under this very grant, Las' Pdcitas, upon locations made in 1863, at the same time and in the same manner as the lands now in question were selected and located. Aurrecoechea v. Bangs, 114 U. S. 382, 5 Sup. Ct. Rep. 892, and Huff v. Doyle, 93 U. S. 558. These cases are controlling. The lands were claimed under the Las Pocitas grant, at the time of their selection, location and
This case affords another instance of hardship arising from the ill-advised efforts of the state to prematurely select the lands to which it ivas entitled, without regard to the existing laws of the United States. But with respect to the particular lands now in question, the parties purchasing in township 2 S., 1 E., since June 10, 1865, had official record notice of the right of the railroad company, for the map filed in the office of the register of the land-office had distinctly indorsed upon it, in red ink, the following: “The odd-numbered sections on this plat are granted to the Western Pacific Railroad. See letter of instructions dated December 23, 1864.” It follows from these views that there must be a decree in favor of the United States, adjudging that the listing to the state of the lands in controversy was unauthorized and void, and that the patents issued by the state upon such listing to purchasers from her passed no title to them in the lands patented, and enjoining them from claiming, in any way or form, title to such lands, or to any part of them, under the said patents, and that the title to the lands passed to the Central Pacific Railroad Company by the acts of congress of July 1, 1862, and of July 2, 1864, the said company having complied with the conditions of the grant to it, and constructed the road and telegraph line designated therein; and that the said company is entitled to a patent of the United ’States for such lands. No costs will be allowed to the complainants.
Not reported.