The record-union., 1891-01-17

GERS of the Land Department. have decided
that ne is entitled to it, To decide otherwise
Woutu De 10 hold that the Land Department.
can grant land contrary to an Act OF Congress.
III IS argued here on behalf of appellants
that the Officers of the Land Department have
not decided as matter of fact that the land
flowed
1t seems TO us that this contention on fair
consideration and Interpretation OF the opin-
ion OF the Register and Receiver. is sound and
maintainable, and that the decision of the
Register and Receiver awards the land TO
Hodges and Upharn on their claim preferred
under the seventh section of the Act OF July
%, 1866, and regardless of the fact whether
the land in contest before them was swamp
and overfiowed or not. The language of their
opinion on the point whether the land is
swamp and overiiowed or not, is indefinite
and ambiguous, and such that it cannot
be said of it that it determines that the land is
not swamp ard oyerfiowed. The opinion re-
fers to the evidence and says of it: "That it
would seem to determine the question as
to the character of the land as against the
State" 1t does not say (as win be observed ON
a peruSal of it) that the evidence shows the
iand to be dry land, and not swamp and over
flowed, but that it would seem to do so. The
opinion in tie next sentence proceeds, AT
any rate, these circumstances, coupled with
the fact that prior TO the Act of July %, 1866
ana to the States disposal of the land in good
f;iltn, etc, etc., proceeding then to award the
land to Hodges and Upham upon this claim
under the seventh section of the Act of Con
gress just referred to.
The judgment of the Register and Receiver
is too indefinite i'll its terms TO be regarded as
Il decision that the land here WAS not swamp
and overfiowed.
| Under these circumstances il is argued that
| the defendants have n right to show that the
iana .l1 Is swamp and oyerowed; that as such it
/ vested in the State by the Actof 2Sth Septem-
Der, 1850, known as the Swamp Land Act,
and that having SO vested, it could not be di-
vested and the title conferred on another by
| the subsequent Act iJaly 23. 1866.
Did the swamp Land Act of $50 grant the
swamp and overfiowed lands within the ex-
! terror bounds of q grant, which were excluded
on the final survey, 10 the state of California?
This is Il question of Interpretation of the pro-
visions of the Act of 1850, considered in the
| light of and influenced by the nature of the
grants made by the Mexican authorities in
! California. Was il the intention of the law
makers to grant TO the State ia,ids of the
nature and character above mentioned? The
question is one relating to the intent of the
| iaW-makng power
We are of opinion that there was no such in
| tent to grant by the Act referred TO- sThe
reasons for this opinion we will proceed 10
| give.
1t is the settled law OF this State that the
grantee of q Mexican grant is entitled TO the
| possession of all the hand within the exterior
| limits of the tract designated in the map or
deseno (which generally attended the appliea-
to be allotted to him on the final survey is a
much less quantity than that designated in
the map or deseno, and this right continues
until the final survey has been made and a;,-
proved, and perhaps until the patent is issued;
| or, to express the rule more briefly, where the
grant is of q smaller quantity (say three
1 leagues within u larger area SAY of ten
leaguesl, from which the three leagues
are to be taken, that the grantee
is entitled to the possession OF the
whole until the quantity three leagues to be
allotted 10 him is set of by the final survey,
and that he (the grantce) is entitled to recover
possession of the Whole ten leagues by action
| Appropriate TO that end, until the specific guam
tity granted him is set off.
The above is the rule declared in Ferris VS.
Coovcr, 10 Cal. 621, followed in numerous
16 Cal 429; Riley VS.. Heisch, IS Cal. 19S;
Mahoney VS.. Van Wrinkle, FL Cal 552.) The
same rule has been approved and declared to
be the law by the Supreme Court of the United
States in Van Reynegon VS.. Bolton, ,95 u. $. X.
80, SO. We insert here that portion of the
opinion tby Field, Justicel which relates to
the reasons on which il rests: ''In the case at
bar the Surveyor-General for California dis
regarded the boundaries established upon the
jurfdlcal possession delivered to the grantee
He proceeded upon the conclusion that the
confirmees were restricted by the decree to one
square league, to be measured out of the tract
| within those boundaries, which exceeded that
amount by about fifteen hundred acres.
Whether the terms of the decree justified his
conclusion is question upon which it is un-
necessary for us to express an opinion. That
is a question which must. in the first instance
be determined by tire Land Department in car
rying the decree into execution by a survey
and patent. 1t is sufficient for the present case
that the survey made was contested by the
coDfrmees and the contest was undeter-
mined when this faction was tried. Until
finally proved, the survey could not impair
their right to the possession of the entire tract
as delivered by tie former government to the
grantee under whom they claim. Until then. ii
was imperative for any purpose. Even if the
limitation to one square league Should ulti.
mately be held correct. that square leagte
might be located IN different portion of the
tract by direction OF the Land Department
to which the supervision and correction OF
surveys of private land-claims are intrusted
The confirmees could not measure off the
cr1fi for ffll1c 1nxyafI fI.-
gregate ii from the balance of the tract. The
right to make the segregation rested exclu-
siyely with the Government, and could only
be exercised by its officers. Until they acted
and effected the segregation, the confirnces
were interested in preserving the entire tract
from waste and injury. and in improving it:
for until then they could know what part
might be assigned to them. Until then, no
third person could interfere with their right to
the possession of the whole. No third person
could be permitted to determine, in advance
of such segregation that any particular
| locality would fall within the SURPLUS and
thereby Justify his intrusion upon IL and its
detention from them. If cne person could in
this way appropriate a particular parcel to
himself, all persons could do so; and thus the
confirnlecs would soon be stripped of the land
which was intended by the Government as q
donation to its grantee, whose interests they
have acquired, for the benefit of parties who
were never in its contemplation If the law
were otherwise than as stated the confirmeeS
would find their possessions limited first in
one direction, and then in another each in
| IfuGer asserting LIltlI IilC Darcpi occupied by
him fell within the surplus, until in the enc
they would be excluded from the eentire tract
This right of possession is property, and full
protection of it was granted to the Mexican
grantee by the treaty of Guadaioupe Hida.go
and by the Constitution and laws of fht
United States. Ferris VS.. Coover. 10 Cal
| 62O-21.)
That the tract of land involved in this cas-,
was within the limits of the grant to Sutter
was conciusiyely determined against defend
r ants in the proceeding in the Land Office. con
sidered in Il former part of this opinion, wher,
+ the land in suit was awarded to Hodges ant
!, Upham, under the seventh section of the Ac
of Congress of July 23, 1866. When th,
, Swamp Land Act of the 2Sth of September
:. $50, was passed. Sutter had right to posses
sion of the land sued for, and ii is not to b,
. supposed that the Congress of the United
States would grant land to one when anothe1
person had TO it right of possession for III
indefinite period, guaranteed to him by it
; laws at the time the grant is said to have beer
made. 1t cannot be presumed that Con
gress would have granted directly and uncon
ditionaliy to person tract of land of which
the United States did not have the absoiut.
and uncontrolled title, so that its grantee nigh
at once take possession. 1t could not be pretli
Gated of such a grant as the Swamp Land Ac
that Congress intended to grant land TO tIl.
+ State when at the time of the grant Suttcr iiat
title to possession Of the land, and might be
come invested with the full legal title. II,
, | would have been so invested il, on the fina
survey of his grant, the land III suit had beer
. included in such final survey. The principl,
here invoked and relied on was adopted
by the United States Supreme Court il
Leavenworth, etc. Railroad Company VS.
United States t92 q. S. r., 733), where it wa.
held that grant OF land to the State of Kan
sas TO aid in the construction of q railroad
embraced only the land whereto the complet,
title was in the United States ut the date o
the Act, and was applicable only to public
lands owned absolutely by the United States
This was held in regard to grant of land to
the State of Kansas, where, at the time TIL,
grant was made, the land in question
was included in reservation made to th,
Usage tribe of Indians.
We think the rule of construction laid dowr
in the case just cited shows that ii was not tn,
intention of Congress to grant to the State o