# San Francisco v. Le Roy/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
138 U.S. 656
San Francisco v. Le Roy
It was conceded in the court below that the premises, to remove the cloud from which the present bill is filed, were at the time 'pueblo lands' of San Francisco,-that is, that they were part of the lands claimed by the city as successor of a Mexican pueblo of that name; that they are within the limits of the city of San Francisco as prescribed by the charter of 1851, and are within the four square leagues described in the decree of the United States circuit court for the district of California, entered May 18, 1865, by which the claim of the city as such successor was confirmed and its boundaries established, and also within the lines of the patent of the United States for the pueblo lands, issued to the city in 1884. It was also stipulated that the decree of the circuit court and the patent of the United States should be considered as in evidence, and that all the statutes of California and of the United States affecting the pueblo lands of San Francisco might be referred to, in the consideration of the case, as though formally in troduced in evidence.
The plaintiffs in their bill rely principally upon the decree of the district court for the twelfth judicial district of the state, in the case brought by William J. Shaw to quiet his title against the claim of the defendant herein, contending that the title of Shaw, through whom they deraign their interest, was thereby adjudged to be valid as against the defendant, and parties deriving title under the defendant, and that they are estopped from asserting against that decree any title or interest in the premises. The decree was rendered upon a disclaimer of the city and county of San Francisco, by its attorney, that it had any right, title, or interest in the premises described in the complaint, or any part thereof, at the commencement of the suit, and its consent that the plaintiff might take judgment therein in accordance with his prayer. Whatever authority the attorney of the city and county may have had to conduct its ordinary litigation, he had none to relinquish rights reserved for the benefit of the public by the Van Ness ordinance; and the property in that case was claimed, as will be afterwards seen, under that ordinance alone. The city and county of San Francisco had previously succeeded to all the rights of property, and become subject to all the liabilities, of the city. Act of April 19, 1856, consolidating the government of the city and county of San Francisco. The plaintiffs did not, however, on the hearing, rely principally, or to any great extent, upon any estopel by that decree, but endeavored to establish their claim of title by conveyances from former occupants of different parcels of land, known as the 'Kissling Tract,' and the 'Thorne and Center Tract,' and of the rights inuring to the occupants under what is known, from its reputed author, as the 'Van Ness Ordinance,' the object of which was to settle and quiet the title of persons in possession of lands in the city of San Francisco; and under the act of the legislature of the state of California, passed in March, 1858, ratifying and confirming the ordinance; and under the act of congress relinquishing and granting to the city all the interest of the United States to lands within the corporate limits of the act of 1851, in trust for the uses and purposes of that ordinance. They also claimed the benefit of a deed of the tide-land commissioners of the state to Eugene L. Sullivan, one of the grantors of William J. Shaw, dated December 3, 1870, which purported, for the consideration of $352.80, to release to the grantee the right, title, and interest of the state of California to the premises therein described.
The testimony, documentary and otherwise, produced in the case, gives a very clear as well as accurate account of the origin, nature, and extent of the title claimed by the city or San Francisco, or the city and county of San Francisco, to its municipal lands, as successors to the rights of the former pueblo. This history has been related in several cases in this court, notably in Trenouth v. San Francisco, 100 U.S. 251; Palmer v. Low, 98 U.S. 1; Grisar v. McDowell, 6 Wall. 364; and Townsend v. Greeley, 5 Wall. 326. A brief statement of the principal facts only will be necessary to an intelligent disposition of the questions presented for consideration. When California was occupied by the forces of the United States in 1846 there was a Mexican pueblo at San Francisco; that is, a settlement or town under the Mexican government, with alcaldes and other officers, for the administration of its municipal affairs. It was the law of Mexico that pueblos or towns, when once recognized by public authority, became entitled, for their benefit and that of their inhabitants, to the use of lands constituting the site of such pueblos or towns, and adjoining territory, to the extent of four square leagues, to be measured off and assigned to them by officers of the government. Townsend v. Greeley, 5 Wall. 326, 336. Under those laws the pueblo of San Francisco asserted a claim to four square leagues, to be measured off from the northern portion of the peninsula on which the present city is situated. The alcaldes or officers of the town, under the Mexican government, exercised the power of distributing the lands in small parcels to the inhabitants, for building, cultivation, and other uses, the remainder being generally held for commons and other public purposes. When our forces took possession of San Francisco, citizens of the United States were appointed by the naval and military commanders to act in the place of the Mexican officers of the pueblo, and they exercised a like authority, which they supposed was invested in them, in making various grants of land in the city. Many persons then there, and many who subsequently settled in California, disputed such authority, and took up and occupied any land which they found vacant within the limits of the pueblo. The natural consequence followed,-confusion and uncertainty in the titles in the city for some years after the acquisition of the country. In April, 1850, San Francisco was incorporated by the state government as a city. She at once claimed the lands of the pueblo as its successor, and, after the board of land commissioners to settle private land claims in California was created by act of congress in March, 1851, prosecuted her claim to this land for confirmation. 9 St. c. 41, p. 631. In December, 1854, that board confirmed her claim to a portion of the four square leagues, and denied it for the balance. Thecit y appealed to the district court of the United States from that decision, and the appeal remained there for some years undisposed of. In September, 1864, the case was transferred from that court to the circuit court of the United States, under the authority of the act of congress to expedite the settling of titles to lands in the state of California, (13 St. c. 194, § 4, p. 333,) and in October following its claim was confirmed to four square leagues, subject to certain reservations. The decree of final confirmation, in its present form, was not entered until the 18th of May, 1865. That decree confirmed the claim of the city to a tract of land embracing so much of the upper portion of the peninsula which is situated above the ordinary high-water mark of 1846 as would contain an area of four square leagues, the 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 designated, subject to certain deductions which it is unnecessary to mention here. The confirmation was to San Francisco in trust for the benefit of lot-holders under grants from the pueblo, town or city of San Francisco, or other competent authority, and as to any residue in trust for the benefit of the inhabitants of the city. In April, 1851, the charter of San Francisco was repealed. and a new charter adopted. Pending the appeal of the pueblo claim in the United States district court, the Van Ness ordinance, above mentioned, was passed by the common council of the city, by which the city relinquished and granted all its right and claim to land within its corporate limits as defined by its charter of 1851, with certain exceptions, to parties in the actual possession thereof by themselves or tenants, on or before the 1st of January, 1855; provided such possession was continued up to the time of the introduction of the ordinance into the common council, which was in June, 1855, or, if interrupted by an intruder or trespasser, had been or might be recovered by legal process; and it declared that for the purposes contemplated by the ordinance persons should be deemed possessors who held titles to land within those limits by virtue of a grant made by any ayuntamiento, town council, alcalde, or justice of the peace of the former pueblo before the 7th of July, 1846, or by virtue of a grant subsequently made by the authorities, within certain limits of the city previous to its incorporation by the state: provided the grant, or a materal portion of it, had been recorded in a proper book of records in the control of the recorder of the county previous to April 3, 1851. The city, among other things, reserved from the grant all the lots which it then occupied or had set apart for public squares, streets, and sites for school-houses, city hall, and other buildings belonging to the corporation, but what lots or parcels were thus occupied or set apart does not appear.
Subsequently, in March, 1858, the legislature of the state ratified and confirmed this ordinance, (St. Cal. 1858, c. 66, p. 52,) and by the fifth section of the act of congress, to expedite the settlement of titles to lands in the state of California, the right and title of the United States to the lands claimed within the corporate limits of the charter of 1851 were relinquished and granted to the city and its successors, for the uses and purposes specified in that ordinance. 13 St. c. 194, § 5, p. 333. Notwithstanding the title to the lands within the limits of the charter of 1851 was thus settled, the appeal from the decree of the board of land commissioners was prosecuted both by the city and the United States,-by the city from so much of the decree as included in the estimate of the quantity of the land confirmed, the reservations made; and by the United States from the whole decree. While these appeals were pending, congress passed the act of March 8, 1866, to quiet the title to the land within the cty limits, 14 St. c. 13, p. 4. At that time the limits of the city were coincident with those of the county, and embraced the whole of the four square leagues confirmed. By that act all the right and title of the United States to the land covered by the decree of the circuit court were relinquished and granted to the city, and the claim to the land was confirmed, subject, however, to certain reservations and exceptions, and in trust that all land not previously granted to the city should be disposed of and conveyed by the city to the parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of the act, in such quantities and on such terms and conditions as the legislature of the state of California might prescribe, excepting such parcels as might be reserved and set apart by ordinance of the city for public uses. In consequence of this act the appeals pending were dismissed. Townsend v. Greeley, 5 Wall. 326. The title of the city, therefore, rests upon the decree of the court recognizing its title to the four square leagues, and establishing the boundaries, and the confirmatory acts of congress. Grisar v. McDowell, 6 Wall. 364. The trust upon which the city held the municipal lands it had acquired as successor of the Mexican pueblo, as declared in the decree of confirmation, was a public and municipal trust, to be exercised chiefly in the distribution of the lands to occupants and settlers, and in the use of the remainder for the public purposes of the city; and the exercise was subject to the supervision and control of the legislative authority either of the state or of the United States, and it does not matter which, inasmuch as its exercise, as directed by the Van Ness ordinance, was authorized both by the legislature of the state and the act of the congress of the United States. The purpose of the ordinance, as indicated in its title, as well as in its several provisions, was to settle and quiet titles to lands in the city of San Francisco. The settlement which it made was by a recognition of certain previous grants of the city or of its officers, and the transfer of its title to those who had occupied the lands in good faith during certain periods. As held by the supreme court of California, in its elaborate and exhaustive examination of the law respecting the property rights of Mexican pueblos, in Hart v. Burnett, 15 Cal. 530, 612, the ordinance was justified by a policy which was analogous to the laws and purposes which gave existence to the rights of the pueblo. Section 2 of an order of the common council, passed on the 16th of October, 1856, which was ratified by the same legislative act of the state which confirmed the Van Ness ordinance, provides that the grant or relinquishment of title made by that ordinance in favor of the several possessors of the land should take effect as fully and completely for the purpose of transferring the city's interest, and for all other purposes whatsoever, as if deeds of release and quitclaim had been duly executed and delivered to the parties individually and by name; and that no further conveyance or act should be necessary to invest such possessors with the interest, title, rights, and benefits which the ordinance intended or purported to transfer and convey.
The claims of the grantors of the plaintiffs to the title to the lands, through conveyances from Kissling and from Thorne and Center, are fully sustained by the evidence. Kissling settled upon a parcel of the land in relation to which this suit is brought, in March, 1849. He was at the time a native of Denmark, but had declared his intention to become an American citizen, and in the notice which he recorded of his claim he represented it as a pre-emption right to 160 acres of land in the district of San Francisco. That claim of itself was of no value whatever, as the lands were not subject to pre-emption, not being lands of the United States, nor would they have been even if owned by the United States, except under the townsite act be cause they were within the limits of what was then a town; but a large portion of the tract thus taken up was fenced in by Kissling, occupied by him, and a portion of it cultivated. His occupation was continuous during the whole period required by the ordinance to enable him to have the benefit of the transfer it made. He therefore acquired as complete a title in the interest which the city then held in the property as it was possible for the city to convey, under the Van Ness ordinance and the confirmatory legislation of the state and the United States. The same may be said of the claim taken up by Thorne and Center on the 5th of August, 1850, and which purported to cover 60 acres. Of itself, it was, like the other, of no validity, and conferred no rights for the land; was not public land open to acquisition in that way. But these parties inclosed the land, occupied and cultivated it, and exercised acts of ownership over it, until the 15th of July, 1854, when they sold four and one-half acres of it to one Charles V. Stewart. They continued, however, to exercise ownership over the residue during all the period required by the Van Ness ordinance to obtain its benefits and the transfer of title from the city. As to the four and one-half acres sold, the grantee continued in the possession and use of that portion also, during the period required by the ordinance.
The title to the lands thus claimed by Kissling, and by Thorne and Center, and by Stewart as a purchaser from them of four and a half acres, became, by operation of that ordinance and the confirmatory legislation mentioned vested in those parties, and by their conveyance passed to William J. Shaw, and was by him conveyed to Eugene L. Sullivan, and thence to the plaintiffs in this suit. All the right, title, and interest which the city held, and which could be conveyed under the Van Ness ordinance, and therefore passed to Shaw when the suit to quiet his title was commenced and carried to judgment in the district court of the twelfth judicial district of the state, and whatever benefit Shaw had acquired by that decree in his favor inured to the benefit of his grantees, the public rights reserved by the Van Ness ordinance being necessarily excepted. One of those was a reservation, notwithstanding its grant, of lands then occupied or set apart for public squares, streets, and sites for shool-houses, city-hall, and other buildings belonging to the corporation, and the decree in this case should have excepted from its operation the lands thus reserved. An effort was made before the examiner, who took the evidence in the case, to do away with the reservation by the verbal statement of a witness that the premises described did not include 'any school-lots, engine-lots, hospital-lots, or property dedicated for street purposes or public squares;' but such testimony was objected to as incompetent, and as not being the best evidence the subject admitted of, and the objection was in our judgment well taken. If there were no reservations, as specified in the ordinance, the fact should have been established by the public records of the city and county. Its property reserved by statute from private ownership for public uses is not to be sacrificed or lost upon loose verbal testimony of the character offered.
We do not attach any importance, upon this question of reservation, to the deed of the tide-land commissioners, executed to Sullivan on the 3d of December, 1870, for the state did not at that time own any tide or marsh lands within the limits of the pueblo as finally established by the land department. All the marsh lands, so called, which the state of California ever owned, were granted to her by the act of congress of September 28, 1850, known as the 'Swamp-Land Act,' by which the swamp and overflowed lands within the limits of certain states, thereby rendered unfit for cultivation, were granted to the states to enable them to construct the necessary levees and drains to reclaim them. 9 St. c. 84, p. 519. The interest o th e pueblo in the lands within its limits goes back to the acquisition of the country, and precedes the passage of that act of congress. And that act was never intended to apply to lands held by the United States charged with any equitable claims of others, which they were bound by treaty to protect. As to tide-lands, although it may be stated as a general principle-and it was so held in Weber v. Board, 18 Wall. 57, 65 that the titles acquired by the United States to lands in California under tide-waters, from Mexico, were held in trust for the future state, so that their ownership and right of disposition passed to it upon its admission into the Union, that doctrine cannot apply to such lands as had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition in some other way. When the United States acquired California it was with the duty to protect all the rights and interests which were held by the pueblo of San Francisco under Mexico. The property rights of pueblos, equally with those of individuals, were entitled to protection, and provision was made by congress in its legislation for their investigation and confirmation. Townsend v. Greeley, 5 Wall. 326, 337. The duty of the government, and its power in the execution of its treaty obligations to protect the claims of all persons, natural and artificial, and of course of the city of San Francisco as successor to the pueblo, were superior to any subsequently acquired rights or claims of the state of California, or of individuals. The confirmation of the claim of the city necessarily took effect upon its title as it existed upon the acquisition of the country. In confirming it the United States, through its tribunals, recognized the validity of that title at the date of the treaty,-at least, recognized the validity of the claim to the title as then existing; and in the execution of its treaty obligations no one could step in between the government of the United States and the city seeking their enforcement. It is a matter of doubt whether there were any lands within the limits of the pueblo, as defined and established by the land department, that could be considered tide-lands, which, independently of the pueblo, would vest in the state. The lands which passed to the state upon her admission to the Union were not those which were affected occasionally by the tide, but only those over which tide-water flowed so continuously as to prevent their use and occupation. To render lands tidelands which the state by virtue of her sovereignty could claim, there must have been such continuity of the flow of tide-water over them, or such regularity of the flow, within every 24 hours, as to render them unfit for cultivation, the growth of grasses, or other uses to which upland is applied. But, even if there were such lands, their existence could in no way affect the rights of the pueblo. Its rights were dependent upon Mexican laws, and when Mexico established those laws she was the owner of tide-lands as well as uplands, and could have placed the boundaries of her pueblos wherever she thought proper. It was for the United States to ascertain those boundaries when fixing the limits of the claim of the city, and that was done after the most thorough and exhaustive examination ever given to the consideration of the boundaries of a claim of a pueblo under the Mexican government. After hearing all the testimony which could be adduced, and repeated arguments of counsel, elaborate reports were made on the subject by three secretaries of the interior. They held, and the patent follows their decision, that the boundary of the bay, which the decree of confirmation had fixed as that of ordinary high-water mark, as it existed on the 7th of July, 1846, crosses the mouth of all creeks entering the bay. There was therefore nothing in the deed of the tide-land commissioners which could by any possibility impair the right of the city to exercise the power reserved in the Van Ness orina nce over such portions of the lands conveyed to occupants under that ordinance as had been occupied or set apart for streets, squares, and public buildings of the city. Such a reservation should have been embodied in the decree in this case. The decree should therefore be modified by adding the declaration that nothing therein shall be deemed to impair in any respect the rights reserved in the Van Ness ordinance to the city of San Francisco, or to its successor, the city and county of San Francisco, over lands that had then been occupied or set apart for streets, squares, and public buildings of the city, and as thus modified be affirmed; and it is so ordered.

## Notes

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