# Henshaw v. Bissell

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United States Supreme Court
85 U.S. 255
Henshaw v. Bissell
ERROR to the Circuit Court for the District of California.
Bissell brought ejectment in the court below against Henshaw and others, to recover one league square of land, situated in the county of Butte, in the State of California. The action was commenced May 15th, 1857, and was tried by the court without a jury by stipulation of the parties. The material facts of the case were as follows:
On the 24th of March, 1852, one Larkin, pursuant to the provisions of the act of Congress of March 3d, 1851, entitled 'An act to ascertain and settle private land-claims in the State of California,' filed a petition with the board of land commissioners created under the act, praying a confirmation of a claim made by him to a tract of land containing four square leagues of land, situated in the county of Butte, in the State of California, his claim being founded on a Mexican grant made by Governor Micheltorena to Charles William Flugge on the 21st day of February, A. D. 1844, upon his petition bearing date on the 22d of December, A. D. 1843. Flugge, in his petition, described the land solicited as 'situated on the western side of Feather River, and stretching along (sobre) the said river from 39° 33' 45" northern latitude, to 39° 48' 45", and forming on this line a square one league in breadth. It is called Boga, as it is rendered manifest by the adjoining sketch.' The grant described the land granted as 'consisting of five sitios ganado mayor [square leagues], situate on the westerly side of Feather River, in the centre of which there is a piece of land called Boga, the first boundary of the said land beginning at 39° 33' 45" degrees north latitude, as appears from the corresponding plan.' The grant was made subject to the approval of the Departmental Assembly, and was approved by that body June 13th, 1845. The map accompanying the petition, called 'sketch' or 'plan' in the translation, in the record, lays down the line of latitude intended as the first boundary of the tract, and designates it by the degree of latitude specified in the petition and grant. The designation of this line turned out to be inaccurate; the degree of latitude mentioned being several leagues farther north. There was, however, no difficulty in fixing the line intended on the surface of the earth by measurement, from the junction of the two rivers Sacramento and Feather, which was several leagues south, and which junction was marked by a line designated by a degree of latitude containing a similar error.
The natural objects indicated on the map-Feather River, which was the eastern boundary, and a creek called Honcut, emptying into Feather River, and three conspicuous peaks in the immediate neighborhood called 'The Three Buttes,'-rendered the identification of the tract a matter easy to any surveyor. Notwithstanding these natural objects Larkin, the claimant, who had acquired the interest of the grantee, contended that the parallel of latitude designated should govern the location of the land, and accordingly he selected the land he desired under the grant, several leagues farther north than the line actually intended, and finally adopted by the government. The surveyor-general of California made a survey of the tract for the information of the land commission before confirmation, and in that survey he committed a similar error. Subsequent to the confirmation he made another survey following substantially the preliminary one. With both the surveys thus made Larkin was satisfied, and he stated to persons inquiring, that his claim under the grant covered the land selected by him and thus surveyed. The grant was confirmed by the board on the 17th of July, 1855; and an appeal from its decree having been taken by the United States, the attorney-general gave notice that the appeal would not be prosecuted; and on the 9th of February, 1857, the appeal was dismissed by the District Court, and the claimant allowed to proceed upon the decree of the board as upon a final decree.
The survey of the tract made by the surveyor-general of California, as above stated, under this decree, was set aside by the Commissioner of the General Land Office, and a new survey ordered. A new survey was accordingly made, and being objected to was ordered into the District Court for examination under the act of June 14th, 1860. This act authorizes the court 'to make an order requiring any survey of a private land claim . . . to be returned into it for examination and adjudication,' and makes it 'the duty of the surveyor-general to transmit said survey and plat forthwith to said court.' It requires 'that before proceeding to take the testimony or to determine on the validity of any objection so made to the survey and location as aforesaid, the said courts shall cause notice to be given by public advertisement, or in some other form to be prescribed by their rules, to all parties in interest, that objection has been made to such survey and location, and admonishing all parties in interest to intervene for the protection of such interest.' It enacts further 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 hereby authorized to set aside and annul the same, or correct and modify it; and it is hereby made the duty of the surveyor-general, on being served with a certified copy of the decree of said court, forthwith to cause a new survey and location to be made, or to correct and reform the survey already made, so as to conform to the decree of the District Court, to which it shall be returned for confirmation and approval.' An appeal is given to the Supreme Court.
Under this act such proceedings were had that on the 15th of January, 1863, a new survey was approved by decree of the District Court, which became final, June 26th, 1865, by dismissal of an appeal taken therefrom. A patent of the United States was issued for the land, in accordance with this survey, to the claimant, October 5th, 1865. The plaintiff deraigned by due conveyances from the heirs of the patentee an undivided three-fourths interest in the premises patented, which include the land in controversy.
On the 19th of March, 1852, Dionisio Fernandez, Maximo Fernandez, J. Beeden, and W. R. Basham, filed a petition, under the act of 1851, with the board of land commissioners, praying a confirmation of a claim made by them to a tract containing four square leagues of land situated in the county of Butte, and State of California, their claim being founded on a Mexican grant made by Pio Pico, governor of California, to Maximo and Dionisio Fernandez, on the 12th day of June, A. D. 1846. The grant describes the land granted as 'a tract of unoccupied land, in the vicinity of the river Sacramento, bounded on the north by the slopes [faldas] of the Sierra Nevada; on the south by John A. Sutter's lands, and on the east by Feather River,' consisting of four square leagues, and refers to a plan or map accompanying the petition of the grantees. This map represents the land as lying on Feather River, with its northern boundary resting on the faldas of the Sierra Nevada mountains, but with no other descriptive features to indicate its northern or southern boundary. The grant was subject to the approval of the Departmental Assembly, but never received such approval. The country passed into the possession of the United States in the following month, July 7th, 1846. Between the slopes or base of the mountains and the line of Sutter's land many leagues intervened.
The grant was confirmed by the board of land commissioners July 17th, 1855, and its decree was affirmed by the District Court on appeal March 2d, 1857. The attorney-general having given notice that no further appeal would be prosecuted, the District Court entered an order, on the ninth of the same month, that the claimants be allowed to proceed under the decree of March 2d as a final decree.
A survey of the tract confirmed was made under the directions of the surveyor-general, and was approved by him on the 29th of May, 1857. This survey was also approved by the Commissioner of the General Land Office; and on the 14th of October, 1857, a patent of the United States, in accordance with it, was issued to the claimants. This patent covers the premises in controversy, and the defendants have acquired the interests of the patentees, and have been in the open, continuous, exclusive, and adverse possession of the premises since 1852, claiming title under the Mexican grant, proceedings for confirmation, and patent of the United States.
The statute of limitations of California, passed in 1863, enacted that no action for the recovery of real property, or its possession, should be maintained, unless the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises within five years before the commencement of the action, with a proviso in substance to the effect that parties claiming real property under title derived from the Spanish or Mexican governments, or the authorities thereof, which had not been finally confirmed by the United States, or its legally constituted authorities, should be limited to five years after its passage, within which to bring an action for the recovery of the property or its possession, but if the title had been thus finally confirmed, the parties should be subject to the same limitations as though they derived their title from any other source, that is, they should have five years from such final confirmation. The statute, in another section, declared that by final confirmation was meant the patent of the United States, or the final determination of the official survey of the land under the act of Congress of June 14th, 1860. The proviso has since then been repealed, but before the repal the present action was brought.
The Circuit Court gave judgment for the plaintiff for the premises, and the defendants brought the case to this court on writ of error for review.
Messrs. R. M. and Q. Corwine, for the plaintiffs in error:
1st. The patent of the United States first issuing to Henshaw and the others gave to them paramount title, at law and in equity, to the land in controversy. This is settled in Beard v. Federy, Waterman v. Smith, Moore v. Wilkinson, Stark v. Barrett, Estrada v. Murphy, Leese v. Clark, and Biddle Boggs v. Merced Mining Co.
2d. The act of June 14th, 1860, providing as it does that a citizen may be deprived of his property by a proceeding to which he is not a party, is unconstitutional, and the proceedings of the District Court in the case of Larkin, after the order dismissing the case, and remitting it and the parties to the board of land commissioners for final action, to wit, on the 9th of February, 1857, were void and inoperative, and do not amount to an estoppel against the defendants. The whole subject of surveys is under the control of the political department of the government, and not subject to management by the courts.
3d. The statute of limitations of California, which was pleaded by the defendants, is a complete bar to this action, and should have been so found by the Circuit Court.
4th. The conduct of Larkin, from whom the plaintiff deraigns title with respect to the land in controversy, prior to and at the time the title to the same was confirmed in those under whom the defendant claims, and subsequently, was in fact and did in law amount to an estoppel of Larkin and those claiming under him.
Messrs. M. Blair and F. A. Dick, contra.
Mr. Justice FIELD delivered the opinion of the court.

## Notes

* ↑ 12 Stat. at Large, 33.
* ↑ 3 Wallace, 479.
* ↑ 13 California, 407.
* ↑ Ib. 488.
* ↑ 15 Id. 366.
* ↑ 19 Id. 260.
* ↑ 18 Id. 537.
* ↑ 14 Id. 362.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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