# O'Neal v. Kirkpatrick

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United States Supreme Court
72 U.S. 791
O'Neal v. Kirkpatrick
THIS was an ejectment in the Circuit Court of the United States for the District of California, to recover a lot of land situate on the margin of the bay of San Francisco, within five miles of the city, below ordinary high-water mark, and which contained about forty acres of land under water, but which could be easily reclaimed, and, by the natural growth of the city, would soon become a part of it. The plaintiff claimed title under a certificate of purchase from the State, dated 23d February, 1864, and which purported to have been issued by the register of the land office, under two acts of the legislature, passed April 21st, 1858, and May 13th, 1861.
The question in the case turned upon the power of the register to grant, or, in other words, on the authority to make the sale of the premises. The act of 1858 provided for the sale of the 'swamp and overflowed' lands of the State. But the lands in question, as described in the certificate, were 'salt-marsh and tide lands,' not within the class or designation of the act. The other act, passed May 13th, 1861, was entitled 'An act to provide for the reclamation and segregation of the swamp and overflowed and salt-marsh and tide lands donated to the State of California by act of Congress.' It contained an elaborate system for reclaiming 'swamp and overflowed' lands in the State, under the supervision and control of commissioners. Section twenty-sixth provided for the sale of these lands, and section twenty-seventh enacted that 'the provisions of this act shall apply equally to all salt-marsh or tide lands in the State, as to swamp and overflowed.' If the case had rested here, the authority to make the sale would seem to have been undoubted. But the same legislature passed an act the next day (May 14th) which, it was contended, annulled this authority. It was entitled, 'An act to provide for the sale of the marsh and tide lands of this State,' and contained but one section. This provided:
1. That the sales of all marsh and tide lands belonging to the State, that had been made according to the provisions of any acts of the legislature providing for the sale of the 'swamp and overflowed lands,' were thereby ratified and confirmed.
2. That any of said marsh and tide lands that remained unsold might be purchased under the provisions of the laws now in force providing for the sale of the swamp and overflowed lands, 'Provided no marsh or tide lands within five miles of the city of San Francisco or the city of Oakland, &c., shall be sold or purchased by authority of this act,' and Provided, further, that no sales of lands, either tide or marsh, which were thereby ratified and confirmed, within five miles of said cities, &c., shall be confirmed by this act, except alcalde grants.
Judgment having gone for the defendant, the plaintiff brought the case here on error.
Messrs. C. T. Botts and Gregory Yale, for the plaintiff; Messrs. Delos Lake, M. Blair, and T. A. Dick, contra.
The argument on the part of the defendant was that this act restrained the power of sale of these marsh and tide lands, given by the act of the day preceding, so as to exempt those lying within five miles of the city, within which the locus in quo is situate.
The argument on the part of the plaintiff, that the restriction was confined to sales made under the act itself-that is, the act containing the restriction-and that it did not interfere with or affect sales made under the act of May 13th.
Mr. Justice NELSON delivered the opinion of the court.

## Notes

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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