# Sherman v. Buick

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United States Supreme Court
93 U.S. 209
Sherman v. Buick
ERROR to the Supreme Court of the State of California.
The plaintiff in error brought suit in the proper court of the State of California to recover possession of a part of section 36, township 5 south, range 1 east, Mount Diablo meridian, and asserted title thereto under a patent from the United States, bearing date May 15, 1869. The defendant claimed under a patent from the State of California, of the date of Jan. 1, 1869. The title of the State is supposed to rest on the act of Congress of March 3, 1853 (10 Stat. 246), granting to her, for school purposes, with certain limitations, every sixteenth and thirty-sixth section within her boundaries, according to the surveys to be thereafter made of the public lands.
The plaintiff, in aid of his patent, and to defeat the title of the State under the act of 1853, offered to prove, that, as early as Dec. 20, 1862, he had settled upon the land, and had ever since resided on it; that it was not surveyed until Aug. 11, 1866; that he had filed and proved his pre-emption claim to it Nov. 6, 1866; and paid for it, and received a patent certificate, on which his patent was duly issued.
The court excluded this evidence, and gave judgment for the defendant, which was affirmed by the Supreme Court; whereupon the plaintiff sued out this writ of error. The sections of the act which bear upon the case are set forth in the opinion of the court.
Mr. Philip Philips, Mr. S. M. Wilson, and Mr. George A. Nourse, for the plaintiff in error.
1. It was competent for the plaintiff to show that the State, at the date of her patent to the defendant, had no title to the lands in controversy. Polk's Lessee v. Wendell, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 381; Patterson v. Tatum, Pacific Law Reporter, Oct. 6, 1874; Doll v. Meader, 16 Cal. 295; Terry v. Megerle, 24 id. 609; Reichart v. Felps, 6 Wall. 160; Norton v. Nebraska, 21 id. 660.
2. The legal title to sections sixteen and thirty-six did not vest in the State until they were marked out and defined by survey. Until then the grant to her was in the nature of a float. Middleton v. Lowe, 30 Cal. 596; Railroad v. Fremont County, 9 Wall. 94; Gaines v. Nicholson, 9 How. 356; Cooper v. Roberts, 18 id. 173. The settlement of the plaintiff, having been made before such survey, was within the exception contained in the seventh section of the act of 1853. The grant, therefore, did not embrace the lands covered by that settlement, and the patent of the State was an absolute nullity.
3. The intention of Congress to protect pre-emption settlements made on school sections before such survey is clearly manifested by the provision authorizing the State to select other lands in lieu of those on which such settlements were made.
Mr. Montgomery Blair for the defendant in error.
1. The grant of sections sixteen and thirty-six was in proesenti. No settlement on the lands in controversy having been made by the plaintiff at the date of the act, or within one year thereafter, they were not excepted from the grant. Houghton v. Higgins, 25 Cal. 255; Doll v. Meader, 16 id. 296; Van Volkenburg v. McCleud, 21 id. 330; Summers v. Dickinson, 9 id. 554; Owen v. Jackson, id. 322; Keeran v. Griffith, 27 id. 87; Robinson v. Forest, 29 id. 317; Bludworth v. Lake, 23 id. 255; Mezerle v. Ashe, 27 id. 328; 33 id. 74; Rutherford v. Greene, 2 Wheat. 196.
2. Although a survey was required to identify these sections by specific boundaries, a vested interest passed to the State by force of the act of 1853. The doctrine of relation has been uniformly applied when executive acts, whether by survey or patent, are required to give full effect to a grant. The title, whenever they are completed, inures as of the date of the inception of the grant, and defeats all intervening claims. Landis v. Brant, 10 How. 373; Kissell v. The Public Schools, 18 id. 19; Cooper v. Roberts, id. 173; Chouteau v. Gibson, 13 Wall. 92; Maguire v. Tyler, 8 id. 650; Railroad Company v. Smith, 9 id. 95; Veeder v. Guppy, 3 Wis. 502.
It is said, on the other side, that the grant does not attach to the school sections till they are surveyed, because till then there were no such sections. This proves too much. If the thing granted did not exist, or was not described with certainty, the grant would be void, which is not the argument. The thing granted is the land, which did exist. 'Section' is only a word of description, but it is a certain and enduring description; and a grant of a particular section is equally operative to appropriate it, whether its lines have been already run, or are hereafter to be run in the same manner, making the location only a question of measurement and calculation. Hence the description is as complete in the one case as in the other, and is so treated by the law; for the grant applies in terms to the 'surveyed and to the unsurveyed land.' As much violence is done to the language by withholding the unsurveyed lands from the schools as by denying them to pre-emptors.
3. Subsequent acts extending the permission to settle upon unsurveyed lands have no bearing upon this case. They cannot operate to recall the grant of 1853, or impair the rights which the State acquired under it. The government cannot resume its grants. New Orleans v. De Armas, 9 Pet. 224.
MR. JUSTICE MILLER, after stating the case, 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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