The record-union., 1891-01-12
Appeal from superior Court, San Francisco
county-Iohn Hunt, Judge.
For appellant, E. ]. and J II. Moore.
For respondent, kellogg, Fox & King.
tCS)oHutEi. Nc4ioss- THN & Ming.
DEPARTMENT TWO.
BAKER,
BAKER, No 1000
p,,c,-r,1 No. 13, ,51i.

In this case there are two appeals prosecuted
by defendant Brickell-the first (12, 1922 from
the judgment on the iudgmcnr roll, and the
second Il 3,51I from an ordcr denying Brick
ellis motion for new trial. They will be con-
sidered together
The action Is brought to establish Il trust
sgainSt defendant BricEell.
The lands III controversy are portions OF
what are known as the outside lands of the
city and county of san Francisco. and not
within that portion affected by the Van Ness
ordinance. John II. Baker went into pos
session OF the lands in suit, called the Baker
tract, or Golden Gate ranch. on July 8. 1850.
He purchased this and other lands within his
possession from one James {. Garner. He
was then q married man, and at the time
above stuffed went into possession with his
wife. Maria Baker twho is the defendant,
Maria Baker Batchelder,) and their children.
John H. Baker died i'll March, 1868, leaving
his wife surviving with six children, of whom
the plaintiff was one, then an infant of tender
years. The surviving wife with her children
remained in possession of the land in contro-
versy. and was in possession when the Act of
Congress- of March 8, 1866, entitled AN Act
TO quiet the title TO certain lands within the
corporate limits of the city of san Francisco"
was passed, and before and some time after
the passage of this Act. (See this Act on page
4 of II Stats. at Large.
At the time of the passage of this Act the
legal title to these lands was in the United
States. The land granted by the Act was
within the corporate limits of the city of San
francisco, and the right and title of the United
States was by IT relinqushed and granted to
the city of san Francisco and its SUCCESSORS,
SUBJECT 10 certain reservations and exceptions
designated therein, upon the following trusts.
namely, that all the said land, not heretofore
granted 10 said city, shall be disposed of and
conveyed by said city to parties i'll The bona
Jjtic actual possession thereof by themselves or
tenants on the passage Of this Act, in such
quantities and upon such terms and condi-
tions as the Legislature of the state of Califor-
mia may prescribe, except such parcels thereof
as may be reserved and set apart by ordinance
of said city for public use" \ proviso follows
the above which has no bearing on the case,
and need not be further adVertGd to.
II may be remarked here that no part of the
land III suit was ever reserved or set apart by
ordinance or otherwise for public uses. Some
observations are here appropriate as to the
nature of the title of the city. successor TO the
former pueblo Of San Francisco. The char
acter of this title has been The subject of dis
cussion in similar eases, both i'll the supreme
Court OF the United States and in this Court.
ard il may be regarded rs settled law that the
title OF the pueblo rs well as thst of the city
was not an indeie;sib!e estilto: ownership of
such lands could not be strictly affirmed OF
either TIE pueblo the city. The title
amounted to little more than q restricted and
qualified right to alienate portions OF the land
to It's Inhabitants for buildings or cultivation
or both, and to use the remainder for COM
mons, for pasture lands or as n source OF revc-
nue, or for other public purposes. The right
ot TINS possession and use WAS il 81 particu-
lars subject To the control of the Government
oT the country. They were to be held by the
pueblo OF city in trust for the benefit OF the
fnliabitents, and its right Of disposition was
subject to he modified, and even take. away bs-
the Government. tOn this point see Town
send vs.. Greeley. ) Wall. ;i2G: Gris;,r vs. Me-
Dowell, 6 Wall 36i: Palmer W. Low. 9S L. <.
Is; Trcnouth vs.. san Fraauisco, 400 L. :.
263; Leroy vs.. Cunningham. Cal. 599: Dli-
pond ys. Barstow. 45 Cal. 451. Low vs.. Lewis.
40 titi- $40; McManus rs. sullivan. IS Cal. :.
IL, s. Randall ". Austin, rs Cal. 81; Me
Crear$ vs.. Sawyer. 81 Cal 35-: PeoDle ys
Holiday, GS Cal. Ii2.l
The legal title to these lar IS passed 20 the
United states from Mexico Is acquisition
of Ga,!i39rnia. and passed TO city by the Act
OF March :, 1866, upon tbs ,fHsts above set
forth, ior the benefit OF such OF lis inhabitants
as were i'll the bona nae actual possession o.
the same Ut the date of the passage of the Act
just above referred 70, viz: on the Sth day OF
March. SOC.
Now, who was in the 5oa .'de actual pos
session # the land on tho sta March. 500 ?
For whose benefit and behalt was the grant by
Congress made? Obviously Maria Baker She
WAS then and before that date an llhilbitant
oi the city of san Francisco. residing un the
lands with her children. That the grant was
made to the head OF the family there cam he iio
question. and M;Jria Baker was then the head
or her family. We consider this determined
IN l.ahish NS. Hardy, : Cal. :s27. where Il
slmilarqaeStion was determined in similar lau-
Sii:ise in "a grant made by Act of Congress 10
The corporate authorities Of the town of Ss,nt;l
Cruz. The only difference between that case
and this is. that in the ease cited the surviving
husband WAS held To be the grantee aud I'M
this ease the surviving wife is the grantee.
The possession IN both eases WAS that al
the head OF the family. tie husband in
one case and the Wife or widow in the other
Here the husband and father was not in being
He had then been dead nearly three years I;
goes without saying that then. being dead he
could not lake title under the grant. and
therefore, on his decease the land did NOT be,
come Il part ~ his estate. II may beadded
here that the tenant spoken of in the Act ot
Congress may be held to signify the convell.
1tonal tenant CROOKS vs.. Hyde. !, = Cal. 81 4 !
Here there WAS no contract other express ot
Implied nom which the tenancy could be in
Ierfesl, nor Is there amy reason 10 hold that
Mrs. Baker became the tenant IL any sense o.
her husband ON his dccease.
To carry the Aet of the Stir OF March. 1866.
into execution the Board of uperviS8.S passed
an orGinance known sls order 500 which WAS
ratified and affirmed b. an Aei OF the Leg;Si;,-
iature passed March s7. 1868. Order sec
was passed by the Board of Supervisors ON the
i4tli OF January, 1865. (See Stats. 1S67-S.
=. 31a ctc9
subsequently, in 1870, another Act OF tho
Legislature WAS passed to expedite the settle
lnent o. the land titles III the city and county
OF san Francisco, etc. affirming order S66 o,
the Board of SUPERVISORS of the city (Sce
Stats. 1869 and 1870, p. 35:, ctc.) THIS en-
actmcnt was made TO enabic the parties en-
titled 10 procure conveys.ncs of Tie fitie to
these lands from the city and county OF san
Francisco.
OF the Act ofCongress. and of The ordinances
oe the city and county OF sen francisco. a I'd