The action of the United States officer in accepting our location isnot open to objection. It was the action of the Executive Department of the Government in carrying into effect the grant to the State, and the mode and manner of its exercise is not subject to review by the Courts, particularly when both parties claim under the same grant. (McLarry v. Sullivan, 2 Wheaton, 369; McIntire v. Wood, 7 Cranch, 504; United States v. Fevreira, 13 How. 40, 52; Foley v. Harrison 56 U.S. 433, 15 How. 433, 14 L.Ed. 761; 2 Washburn on Real Property, 528; quoted from 5 Porter's Ala. Rep., p. 243; McConnell v. Wilcox, 1 Scammon, 345.)
It will, in the nature of things, be a qualification to any grant that it shall not affect pre-existing titles emanating from the same source. We cannot countenance the presumption that the Government will do that which, in the subject, we denominate fraud--that is, grant the same land twice.
The location of Thomas and the subsequent conveyance, vest the title in the plaintiff.
The Act of 1852 provides for the sale of the warrants, prescribes the manner of their location and ex industrice, provides that the location shall secure the right of possession to the locator until the Government survey be made, and then shall bemade to conform thereto. (Stat. 1852, p. 860. Hittel's Dig. Art. 3975.)
The same Act provides for the issuance of a patent (Art. 3984,) and the Act of April 30, 1857, expressly saves all rights acquired under the Act of 1852.
We do not pretend to stand upon anything in the nature of an equitable title, but upon strict legal right--a priority of purchase and location, evidenced by the most public act and by a record which, of itself, imparts notice of our claim and makes the subsequent action of the defendant, fraudulent as against our claim. (Watson v. Robey, 9 Cal. 54.)
As regards the effect of our location, we cite: (Nims v. Palmer, 6 Cal. 13; Watson v. Robey, (supra) ; Doll v. Meader, 16 Cal. 269; Valkenburg v. McCloud, 21 Cal. 330; Rhodes v. Craig, 21 Cal. 419.)
In the case of Moore v. Wilkinson, (13 Cal. 478,) the Court says: " Individuals can resist the conclusiveness of the patent only by showing that it conflicts with prior rights vested in themselves." " The most we find claimed by the authorities, as to the conclusiveness of a patent, is that it so operates against all those whose rights did not commence previous to its emanation." (2Washburne on Real Property, 526.)
This Court in Doll v. Meader, cited above, seem to except, throughout the opinion, the case where a party with a title from a common source conflicts with a patent. (Terry v. Megerle, 24 Cal. 609; Kile v. Tubbs, 23 Cal. 432; Megerle v. Ashe, 27 Cal. 322.)
Under these decisions we insist that the location of the land vests a title which needs no further act or patent to convey; that a title thus vested is, as a title by grant, equal to a patent, and if prior in time, prior also in right; and that under such circumstances, the effect of the patent is well described as not conclusive, " as against a grant made by the legislative department prior thereto; " and that it could have no operation beyond that of a mere quitclaim.
JUDGES: Sawyer, J., delivered the opinion of the Court, Sanderson, J., and Rhodes, J., concurring. Curry, C. J., and Shafter, J., expressed no opinion.
OPINION
SAWYER, Judge
Subsequently, upon petition of respondent a rehearing was granted.
Rhodes, C. J., delivered the opinion of the Court, Crockett, J., Temple, J., and Sprague, J., concurring:
At the former hearing of this case, it was held that the location of school land warrants, issued under the Act of May 3, 1852, upon unsurveyed lands was void, and conferred no right whatever upon the locator. That proposition is beyond controversy in this State. (See Terry v. Megerle, 24 Cal. 610; Grogan v. Knight, 27 Cal. 520.) The location of the warrant, under which the plaintiff claims, having been made before the lands were surveyed by the General Government, neither conferred title on the locator, nor gave him the right to the possession of the lands described in the certificate of location.
It was also held, at the former hearing, that the certificate issued by the Register of the Land Office at Benicia, was improperly admitted in evidence. The argument on the rehearing, has not weakened our convictions on this point. The Act of 1852 does not call for, or recognize such a certificate, nor was it authorized by any law of Congress or regulation of the Land Department. The instructions of the Commissioner of the General Land Office, to which the plaintiff refers, bear a date subsequent to that of the certificate, and therefore cannot be accepted as authority to the Register to issue the certificate.
It is unnecessary to consider at any great length, the various provisions of the Act of 1852, for the purposes of this case; and besides this, the Act was drawn under a misconception of the power of the Legislature; and it is impossible to bring all the provisions of the Act into harmony. The plaintiff contends, that the person holding the warrant under which he claims, was authorized to select the land on behalf of the State, in part satisfaction of the grant of 500,000 acres, and that the land might therefore be located in accordance with law--the point of the argument being, as we understand counsel, that the selection of the land vested the title in the State, and that the locator of the warrant, having pursued the provisions of the Act of 1852, is entitled to the possession of the land. We say " as we understand counsel," for although he has presented very fully the leading, if not all the considerations applicable to his side of the several questions involved in the case, he has, neither in his brief on the former, nor on this hearing, stated the points--the legal propositions--which, in his view, arise upon the facts of the case, and which, if maintained, entitle him to judgment. It materially lessens the labor of the Court to have each point upon which counsel rely, fully, precisely and clearly stated, before proceeding to the argument. And this course will materially lighten the labor of counsel also, for it may safely be said that four points out of five need only to be stated, for, when stated with the requisite precision, their truth is apparent without argument; or it may happen, that when so stated, they are seen by counsel to be so palpably unsound that they are not urged upon the attention of the Court. The briefs of the defendant's counsel, also, possess the faults we have mentioned; and, indeed, very many of the briefs filed in this Court are subject to the same censure. The reporter is unable to do counsel justice, when, instead, of copying the points from the brief, he is compelled to surmise the points from the argument. While on this subject, some other matters may be adverted to, by which many briefs might be materially improved. If the facts are stated, they should be stated briefly. The case is more than half argued when the facts are well stated. Neither the points, arguments nor authorities, should be mingled with the statement of facts. When cases are cited, the titles of the cases should be given, and when statutes of this State are cited, the page of the annual statutes should be given, even where a reference is made to a digest.
The plaintiff bases his position, that the selection and the location of the land are two separate acts, upon the language of the eighth section of the Act of Congress of September 4, 1841, the section granting the land to the several States. Both of these terms are employed in the section, and they may not be synonymous. Provision might be made for the selection of the lands; that is to say, the State might indicate in such mode as she saw proper, what lands she desired to acquire in satisfaction of this grant, and provision might be made for their location at a future time, or by other agents. But it seems clear to us, that title to any particular parcel of land does not vest in the State, until the location is made. There is nothing in the Act of Congress, the regulations of the General Land Office, or the statutes of this State, which lends countenance to the idea, that the making by an officer or agent of the State, of a description or list of lands which the State desires to acquire under the Act of Congress, and the filing of the same in any State office, vests the title in the State or a purchaser from the State. But if this were not true, it is unquestionable, that no valid selection can be made of unsurveyed lands.
No special notice is required of the points of the plaintiff, which are based on the assumed validity of the certificate of the Register of the Land Office at Benicia.
The Act of Congress of July 23, 1866, to quiet land titles in California, will not assist the plaintiff in this action, because the right or title, if any, which he acquired by virtue of the Act, did not vest in him until after the commencement of the action.
The certificate of the Register of the Land Office at Stockton, that the land warrant was located on lands in another land district, with the consent of the Register and Receiver of the Land Office of that district, is plainly inadmissible in evidence.
Judgment reversed and cause remanded for a new trial.