# Knight v. United Land Association

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## Concurring Opinion

    Field
United States Supreme Court
142 U.S. 161
Knight v. United Land Association
This was an action of ejectment, brought in the superior court in and for the city and county of San Francisco, Cal., by the United Land Association, a corporation of that state, and one Clinton C. Tripp, against Thomas Knight, to recover a block of land in that city bounded by Barry, Channel, Seventh, and Eighth streets, and known as 'Block No. 40.' The controversy involves an interesting question of title to the property described, the plaintiffs asserting that the premises were below the line of ordinary high-water mark at the date of the conquest of California from Mexico, and, therefore, upon the admission of the stated into the Union in 1850, inured to it in virtue of its sovereignty over tide-lands; and the defendant insisting that the lands are a portion of the pueblo of San Francisco, as confirmed and patented by the United States.
The complaint, filed on the 23d of November, 1880, alleged that the plaintiffs were the owners in fee of the premises described, and were entitled to the possession thereof, and that they had been wrongfully dispossessed thereof by the defendant, who continued to hold such unlawful possession, to their damage in the sum of $100, and to their loss of the rents and profits thereof in the sum of $500. Wherefore they prayed a judgment of restitution and damages aforesaid.
The answer consisted of a general denial of all the allegations of the complaint; and the cause, being at issue, was, by stipulation of counsel referred to a referee to take testimony, 'try all the issues, and report his findings and judgment thereon.'
In obedience to the order of the court the referee tried the case, making an elaborate finding of facts, and concluding, as matter of law, that judgment should go for the plaintiffs. Accordingly, on the 2d of June, 1888, a judgment was entered in the superior court in favor of the plaintiffs. That judgment was afterwards affirmed by the supreme court of the state on appeal; and, after two separate rehearings, and judgment of affirmance was adhered to by a bare majority of the court, three of the judges dissenting. 85 Cal. 474, 24 Pac. Rep. 823, and 85 Cal. 448, 24 Pac. Rep. 818. This writ of error was then sued out.
It appears from the bill of exceptions that on the trial of the case before the referee the plaintiffs, to sustain the issues on their behalf, introduced evidence tending to show the location of the premises to be as alleged in the complaint, and also a complete and good title in themselves under a grant from the state and certain mesne conveyances, provided the title to the premises was originally in the state, and provided certain deeds (which were also introduced) from the state tide-land commissioners, dated, respectively, November 24 and 27, 1875, were effectual to convey said title. For the purpose of proving title in the state they offered parol testimony to show that in 1854 the premises were below the line of ordinary high-water mark, and that Mission creek (which is an estuary of the Bay of San Francisco, and runs along-side this block) was, at that time, navigable for a considerable distance above them. This evidence was objected to, on the ground that parol evidence was inadmissible to prove the boundary lines of the decree of confirmation of the pueblo lands; but the objection was overruled, and an exception noted.
The plaintiffs then offered in evidence certain documents relative to the confirmation to the city of San Francisco of its pueblo lands, and also the first survey of those lands under the decree of confirmation, which survey, made by Deputy-Surveyor Stratton, approved by the survey or general of California, and confirmed by the commissioner of the general land-office, did not include the premises in controversy. They also produced a witness who testified that the produced a witness who dinary high-water mark, as laid down on such survey. To the introduction of this survey as evidence, and to the parol proof of the location of the premises with reference to the line of high tide, as delineated thereon, the defendant objected, on the ground that the survey was not matter of record; that it did not tend to prove, as between the parties hereto, where the line of high tide was, being res inter alios acta; and that it had been canceled and superseded by another survey subsequently made in accordance with instructions of the secretary of the interior. The objection was overruled, the survey was admitted in evidence, and the defendant duly excepted.
The plaintiffs also produced in evidence certain maps made by persons in official station in 1853, 1857, 1859, and 1864, showing the line of high tide at about the same line as on the aforesaid Stratton survey. Objections were made to these maps as evidence, but they were overruled, and exceptions were noted.
The plaintiffs also introduced in evidence the original minute-book of the board of supervisors of the city and county of San Francisco, and read a resolution passed by the board on the 23d of December, 1878, that no appeal should be taken from the action of the commissioner of the general land-office approving the Stratton survey. Objection was made to this evidence, but it was overruled, and an exception was noted.
The plaintiffs then offered in evidence the deeds from the state land commissioners to one Ellis, (from whom they derived their title,) together with the letter of the attorney general of the state advising the board to dispose of all the tide-lands not in litigation, and where they could ascertain to whom the state title ought to go, in pursuance of the tide-land acts. The deeds embrace the property in dispute. The defendant objected to these deeds on the ground that they were incompetent, in that the board of tide-land commissioners had no power or jurisdiction to make them, and on the further ground that there was nothing to show that the board was advised by the attorney general to make such deeds. The objection was overruled, and an exception was noted. The plaintiffs thereupon rested their case.
The defendant, to sustain the issues on his part, offered in evidence the patent of the San Francisco pueblo lands, regularly issued to that city on the 29th of June 1884, and also the plat of said pueblo lands surveyed under instructions from the United States surveyor general by Deputy-Surveyor Von Leicht in December, 1883, which showed an indorsement of approval by the commissioner of the general land-office, under date of May 15, 1884, and was also indorsed as follows: 'The field-notes of the survey of the pueblo lands of San Francisco, from which this plat has been made, are strictly in accordance with the instructions of the honorable commissioner of the general land-office received with his letter, dated November 25, 1883, as the same appear of record and on file in this office. United States surveyor general's office, San Francisco, California, January 17th, 1884. W. H. BROWN, United States Surveyor Gen eral for California.'
It was admitted that the land in question is included within the exterior bound aries of the patent; but the patent was objected to as incompetent to show title in the city of San Francisco, as against grantees of the state of the premises, for the following reasons:
'(1) The state of California acquired her title by virtue of her sovereignty on her admission into the Union, and her title could not be overthrown by declarations of the United States, made after title had vested in her.
'(2) That as to lands acquired by virtue of her sovereignty, the state was not the owner of a private land claim, and was not bound to present her claims to the board of land commissioners, organized under the act of congress entitled 'An act to ascertain and settle the private land claims in the state of California, passed March 3, 1851;' nor is she concluded as to her rights by not presenting them as provided in section 13 thereof, nor by any decision on the claim of another person. The act did not apply to her or her property.
'(3) The only authority for the patent was a decree of the United States circuit court, which court was not vested with jurisdiction over the state or the property of the state, although it was vested with jurisdiction over natural persons and corporations. Neither the decree nor any proceedings under the decree could affect the title of the state, or furnish evidence against her.
'(4) The state was not a party to the record in the case of The City, etc., v. The United States, nor is she affected as a natural person or corporation would be by a failure to attend before the United States surveyor general and object to a survey, as provided in section 1 of the act of congress approved July 1, 1864, and entitled 'An act to expedite the settlement of titles to lands in the state of California.' But, being a stranger to the entire record and proceeding, the patent is not competent evidence against her or her property.
'(5) The first survey is the final adjudication of the land-office of the location of the premises described in the decree, because—
'(a) In confirming a survey under the acts of March 3, 1851, and July 1, 1864, the commissioner acts in a special judicial capacity, and his decisions are not appealable to the secretary of the interior.
'(b) The city refused to appeal, and this refusal appears in the record, and there was no appeal.
'(c) The first confirmed survey is better evidence of the location in this case than the patent, and the patent is void to the extent that it departs from it.
'(d) The decree confirms to the city only the land above or within the ordinary high-water mark at the date of the conquest.
'The premises are outside that specific boundary; and, as the surveyor general had no authority under the acts of congress to survey, nor the land-office to patent, land not confirmed to the claimant, the decree controls, and the patent is void to the extent that it departs from the specific boundary given in the decree.'
The evidence was admitted, but the referee refused to find thereon in favor of the defendant, and an exception was noted.
The defendant also introduced in evidence the judgment roll in a case tried in a state court between this defendant and the city and county of San Francisco, in which a judgment was rendered in his favor in November, 1868, quieting his title to the premises.
That was all the evidence introduced, and upon it the referee found the material facts of the case substantially as follows: The premises in dispute are below ordinary high-water markas the same existed on the 7th of July, 1846, (the date of the conquest of Mexico,) and are below and outside of a survey of the pueblo claim made by Deputy-Surveyor Stratton, and approved by the surveyor general of California on the 13th of August, 1868, and confirmed by the commissioner of the general land-office, November 11, 1878, but are within a subsequent survey of the pueblo, made by Deputy-Surveyor Von Leicht in 1884, which was not approved by the surveyor general of California, but was certified by him to have been made in accordance with orders from the secretary of the interior. The patent for the pueblo lands was issued on this second survey, and recited, among other things, the proceedings had in relation to the perfecting of the pueblo title, including the decree of confirmation and the confirmatory acts of congress. The plaintiffs derived their title from the state through certain mesne conveyances, regular and legal in all respects, while the defendant did not connect himself with the title of the state.
Upon the foregoing facts the referee found as conclusions of law that:
(1) The state of California, upon her admission into the Union, September 9, 1850, became seised in fee of the premises in dispute.
(2) This title subsequently became vested in the plaintiffs, by virtue of certain conveyances described.
(3) This title of the plaintiffs was subject to defeat by the decree of the circuit court confirming the claim of the pueblo, but the premises, being without the confirmed survey of 1878, and outside of the specific boundary given in the decree, remained the property of the state.
(4) 'The second [Von Leicht] survey was illegal, because it was not approved by the surveyor general of California, no appeal was taken to the secretary of the interior from the decision of the commissioner of the general land-office approving the prior survey, and because the second survey was not retained in the office of the United States surveyor general for ninety days, and no notice of the same was given to enable parties in interest to file protests, as required by law, and because in approving said prior survey said commissioner of the general land-office was acting in a judicial capacity, and his judgment thereon is not reversible, and was not legally reversed;' and,
(5) The description of the premises contained in the patent being in excess of the premises described in the prior survey and in the decree, the patent, to the extent that it covered land of the state not confirmed to the claimant, was invalid, and did not operate to convey the state's title to the premises in controversy.
The judgment of the supreme court of the state was based upon substantially the same grounds as that of the referee, and the correctness of the propositions of law involved therein is drawn in question by this writ of error.
To understand precisely the exact nature of the questions involved in this case a somewhat more detailed statement of facts than is contained in the above findings of the referee will be found useful. These facts are not contradictory of those findings, and are recited in former decisions of this court, statutes of the United States and of the state of California, and the records of the interior department, of all of which the court can take judicial notice.
The pueblo of San Francisco has been a fruitful subject of litigation for many years, both in the land department of the government and in the state and federal courts. For the purposes of this case a brief history only of the litigation is deemed essential.
The city of San Francisco, as the successor of a Mexican pueblo of that name, presented its claim to the board of land commissioners created by the act of congress approved March 3, 1851, for the confirmation to it of a tract of land to the extent of four square leagues, situated on the upper portion of the peninsula of San Francisco. In December, 1854, the board confirmed the claim for only a portion of the four square leagues, and both the city and the United States appealed to the district court of the United States. The United States subsequently withdrew its appeal, but the case remained in the district court undisposed of until September, 1864, when under the provisions of the act of congress of July 1, 1864, it was transferred to the United States circuit court, which sustained the contention of the city and entered a confirmatory decree in its favor on the 18th of May, 1865. 4 Sawy. 553, 577. The language of that decree is as follows: 'The land of which confirmation is made is a tract situated within the county of San Francisco, and embracing so much of the extremem upper portion of the peninsula above ordinary high-water mark (as the same existed at the date of the conquest of the country, namely, the 7th of July, A. D. 1846) on which the city of San Francisco is situated as will contain an area of four square leagues; said tract being bounded on the north and east by the Bay of San Francisco, on the west by the Pacific ocean, and on the south by a due east and west line drawn so as to include the area aforesaid,' subject to certain exceptions and deductions not necessary to be stated.
Both the United States and the city appealed from that decree,-the United States from the whole decree, and the city from so much of it as included the aforesaid deductions and exceptions in the estimate of the quantity of land confirmed. While these appeals were pending, congress passed the act of March 8, 1866, 'to quiet the title to certain lands within the corporate limits of the city of San Francisco.' This act is as follows:
'Be it enacted, etc., that all the right and title of the United States to the land situated within the corporate limits of the city of San Francisco, in the state of California, confirmed to the city of San Francisco by the decree of the circuit court of the United States for the northern district of California, entered on the eighteenth day of May, one thousand eight hundred and sixty-five, be, and the same are hereby, relinguished and granted to the said city of San Francisco and its successors, and the claim of the said city to said land is hereby confirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely, that all the said land not heretofore granted to said city shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the state of California may prescribe, except such parcels thereof may be reserved and set apart by ordinance of said city for public uses: provided, however, that the relinquishment and grant by this act shall not interfere with or prejudice any valied adverse right or claim, if such exist, to said land or any part thereof, whehter derived from Spain, Mexico, or the United States, or preclude a judicial examination and adjustment thereof.' 14 St. 4.
The appeals to this court were thereupon dismissed. The measure of the city's title to the four square leagues of land is to be found in the decree of confirmation and the act of congress just recited. The question of the city's title having been settled, it became necessary to fix the boundaries of its lands by a survey. This duty under the law, devolved upon the political department of the general government having charge of the public lands. Accordingly, in 1867 and 1868, under instructions of Surveyor General Upson, Deputy-Surveyor Stratton made a survey of the confirmed claim, and the same was approved by the surveyor general, and subsequently, after lying in the general land-office at Washington for about 10 years, it was confirmed by the commissioner on the 11th of November, 1878. 2 C. L. L. 1234. In making this survey Stratton ran its lines along the line of ordinary high-water mark of the Bay of San Francisco until he came to Mission creek, a small stream or estuary of the day, and then followed the tide-line up the creek, and, crossing over, ran down on the other side. This plan seems also to have been followed with reference to a few other small estuaries. The city protested against this method of survey, and, through her attorney of record, gave notice of appeal from the action of the commissioner of the general land-office to the secretary of the interior, claiming that the proper method of running the line along the bay was to follow the tide-line of the main body of water, and cut across the mouths of all estuaries or creeks which are arms of the bay. The board of supervisors of the city, however, decided not to appeal from the decision of the commissioner of the general land-office confirming the Stratton survey, and, declaring that the action of the attorney was unauthorized, discharged him. Thereafter the board passed a resolution, addressed to the secretary of the interior, in which it was stated that, in its opinion, the Stratton survey was entirely correct and legal, and should be approved.
Notwithstanding this action of the board, the secretary of the interior sent for the papers in the case, and, upon an elaborate examination of the points involved, reversed the action of the commissioner of the general land-office approving the Stratton survey, thus substantially sustaining the original protest of the city to the running of the boundary line of the grant up the estuaries of the bay.
Upon motion for review, a subsequent secretary of the interior sustained the action of his predecessor, and ordered a survey made in conformity with the views of the department. 2 Dec. Dep. Int. 346. It was under those instructions that the Von Leicht survey was made, upon which the patent was issued. Subsequently an application was made to a succeeding secretary to have the patent recalled and canceled, and a new patent issued; but it was denied, the secretary holding that he had no power under the law to grant the application, and that, even if the had, he should decline to exercise it, because he considered the views of his predecessors sound and correct. 5 Dec. Dep. Int. 483.
Edward R. Taylor and S. M. Wilson, for plaintiff in error.
Chas. N. Fox and Philip G. Galpin, for defendants in error.
[Argument of Counsel from pages 172-175 intentionally omitted]
Mr. Justice LAMAR 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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