# Grisar v. McDowell

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United States Supreme Court
73 U.S. 363
Grisar v. McDowell
ERROR to the Circuit Court for California; the action there having been to recover possession of a tract of land within the by of San Francisco.
The plaintiff claimed as seized in fee under title from the city of San Francisco. The defendant claimed possession as an officer of the United States; setting up that the property was public property of the United States reserved for military purposes.
The city's title was thus: It seemed to be sufficiently plain, from historical evidences and from adjudicated cases, that at the time of the conquest of California by the United States, there was at the present site of San Francisco a pueblo of some kind; that is to say, that there was a settlement or collection of individuals there having an ayuntamiento composed of alcaldes, regidores, and other municipal officers.
It seemed sufficiently plain also that there were general Mexican laws governing the subject, which authorized territory to an extent not exceeding four square leagues to be marked out and dedicated to the use of pueblos and of their inhabitants for certain purposes.
What, however, was the precise nature of this pueblo at San Francisco, or what the nature of its rights or of pueblo rights generally in any four leagues, and by what lines these particular four leagues were to be defined, was not so clear, nor at all conceded: though it was asserted by the plaintiff that the four leagues in immediate connection with San Francisco, were to be measured from the presidio of the old pueblo, the place occupied by the garrison of the town; and hence were to be bounded of necessity on three sides by waters of the ocean, the bay and the Golden Gate. And it was shown that a line drawn from water to water, east and west, would segregate in the easiest manner the four leagues to which, as successor of the former pueblo, the city was entitled.
If such a line had ever been drawn, the tract now in controversy would have been included within it. But there was no evidence that any assignment of land had ever in any way been made to the pueblo where San Francisco now stands, under the former government.
On the 3d of March, 1851, Congress passed the act to ascertain and settle private land claims in California. This act by its eighth section makes it the duty of every person having claims to lands there, to present them for investigation and the evidence in support of them, to a board of commissioners, which was created by the act. The fourteenth section declared, however, that the general requirements of this eighth section should not extend to 'any town lot, farm lot or pasture lot held under any grant from any corporation to which lands may have been granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, nor to any city, town, or village lot, which city, town, or village, existed on the 7th day of July, 1846, but that the claim for the same shall be presented by the corporate authorities of said town,' and that 'the fact of the existence of the said city, town, or village, on the said 7th of July, 1846, being duly proved, shall be prima facie evidence of a grant to such corporation.'
In July, 1852, the city presented to this board a claim for the four leagues, praying a confirmation; and in December, 1854, the board confirmed the claim to a portion of the land, in which portion were embraced the premises now in controversy.
In June, 1855, in virtue of an ordinance known as the Van Ness Ordinance, passed by the common council of the city of San Francisco, and subsequently, in 1868, ratified and confirmed by the legislature of California, whatever right the city had to the premises in controversy, on the 1st January, 1855, passed to a party under whom the plaintiff claimed.
Such was the plaintiff's case.
By the defendant's, it appeared, that in November, 1850, the President of the United States made, through the War Department, and in a usual way, an order that a certain parcel of land described by him, situated on the bay of San Francisco, California, and which, it was said by one side here, did, in point of fact, embrace the premises in controversy, and by the other that it did not-should be exempted from sale and reserved for public purposes. A private claimant to this tract proposing subsequently that certain other bounds should be substituted, with the understanding that if this was agreed to by the government he would resign all pretensions to title within the reservation, as fixed by the modified boundary proposed, the President, in December, 1851, in compliance with a recommendation to that effect from the Engineer Department, made in October, 1851, modified and reduced the reservation, describing it more particularly, and in such a way as to divide the tract originally reserved into two separate tracts, and, as it was said on one side here, to include also, land not included in the original order. In one of these tracts, the premises in controversy were embraced.
The fact, therefore, that the President had reserved the tract for the purposes of the Federal government, was one part of the defendant's case. Another was this:
In stating the city's title it has been said that the board of land commissioners, in December, 1854, confirmed the claim of the city to a part of the four leagues claimed by it as a pueblo, which part included these premises. If the matter had stopped there, the case of the plaintiff might have been free from question. But it did not stop there. The sequel was thus:
In March, 1856, a transcript of the proceedings and decision of the board was filed in the District Court of the United States; this opr ating under the statute of August 31st, 1852, as an appeal by the party against whom the decision was given. Both City and United States in this case considered the decision as against them, and both gave notice of their intention to appeal. The appeal of the United States was, however, on notice of the Attorney-General and the stipulation of the district attorney, dismissed, and the city alone prosecuted its appeal. While the appeal was thus pending in the District Court, Congress passed an act by virtue of which the case became transferred to the Circuit Court of the United States. That court, in May, 1865, confirmed the claim of the city to the four leagues, excepting, among others, such parcels of land as had been previously 'reserved or dedicated to public uses by the United States;' meaning by this, the tracts reserved as above mentioned by the then President, Mr. Fillmore. From this decree of the Circuit Court, the United States appealed to the Supreme Court at Washington.
After the appeal taken (but previous to the trial in the present case), Congress relinquished all right of the United States to land situated within the city of San Francisco, and confirmed to it by the decree just mentioned, to the city, and confirmed the city's claim; subject, however, to the reservations and exceptions designated in that decree, and also subject to certain specified trusts. The appeal of the United States to the Supreme Court was accordingly dismissed.
On the trial of the present case the plaintiff objected to the admission of the evidence of the first reservation of the President, on account of its indefiniteness of description, and because the President could not make a reservation out of pueblo lands; and of the second one among other reasons because it was the result of a compromise between the government and an adverse claimant.
He objected also, to the admission of the decree mentioned as having been made in the Circuit Court, it being admitted on the other side that an appeal was taken to it by the United States and was still pending.
The objections were all overruled; and judgment having been given for the defendant, the case was now here on error.
The case, it will be seen, involved essentially the question of the nature of the title and ownership of lands held by Mexican pueblos under the laws of Mexico in force in California, at the date of the conquest of that country, and, to some extent, of the nature of a pueblo itself.
Messrs. Cushing, Cole, and Reverdy Johnson, for the plaintiff in error, contended that, at the time of and long before the American occupation, San Francisco was an organized pueblo; that as such she was by the Mexican law proprietor in fee of four square leagues of land; that the limits of the land were certain; that the title was not an inchoate or imperfect title, but that the entire fee and use-the dominion both direct and useful-was in the pueblo; a matter on which they cited the Partidas and other Spanish authorities; that being private property, the President had no power to make a reservation out of it; that the fourteenth section of the act of March 3d, 1851, was a recognition by the United States of the pre-existing title of the city, and estopped them from pretending to title after that; that the decree of the Circuit Court of the United States in the case of United States v. The City of San Francisco, was not admissible in evidence, an appeal having been taken therefrom, which destroyed its effect as evidence of title; that the decree entered by consent in the United States District Court, on motion of the United States District Attorney, that the United States would not prosecute an appeal from the decree of the board of land commissioners, and that the city should have leave to proceed upon that decree as upon a final decree, was a final adjudication of the title to the land embrc ed within it, and vested the title absolutely in the city.
Mr. Stanbery, A. G., and Mr. Lake, contra.
Mr. Justice FIELD delivered the opinion of the court.

## Notes

* ↑ See Dwinelle's Colonial History of the City of San Francisco; Hart v. Burnett, 15 California, 540; where the general character of the documentary evidence of the existence of the pueblo, and of the rights it possessed, is set forth and considered.
* ↑ Act of 1st July, 1864; 13 Stat. at Large, 332.
* ↑ Act of March 8th, 1866; 14 Stat. at Large, 4.
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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