The Jimeno is the elder grant, but not the elder title, to the land segregated by the survey decree of the Colus. Both were inchoate titles, being grants for certain quantities, the one for eleven the other for two leagues, within exterior limits containing nineteenleagues, and were not perfected so as to attach to particular and definite tracts by segregations under the former Mexican Government. The inchoate characters of the two grants continued until they ripened into perfect titles by proceedings in each case under the Acts of Congress of 1851, and of June 14th, 1860. The appellant claims that the Colus Grant became a perfect title to the identical two leagues embraced within the designated boundaries of the survey decree upon the 2d day of February, 1861. And that the Jimeno Grant was not perfected until the 6th day of April, 1861, and that, in so far as the Jimeno overlaps the Colus, it is good for naught; that to the extent of such overlapping, the Jimeno carries no more title than a subsequent deed from the same grantor would carry to such portion of land as it might contain which had been granted away in a prior deed. In support of this proposition, when applying it to these two grants, and in attempting to demonstrate that a younger grant may be a better title to a given lot of land, we depend mainly upon what we deem the virtue and effect of the Act of June 14th, 1860. Besides, as an abstract proposition of law, it is certain thatthe later grant, with definite boundaries, will prevail over the elder with quantity only certain, the two being inside of a designated area large enough to satisfy both. (United States v. Fremont, 17 How. 558.)
Hagar confessed the judgment in the Colus case without qualification, by withdrawing his intervention. Semple consented to the Jimeno decree, and what quality that consent gave to the decree must be determined by the pleadings in the case. His plea alleged that the survey would deprive him of a portion of his interest in the Jimeno lands, and he consented to such deprivation. This is the only effect of that decree upon him. If anything were wanted to prove what we contend for, we could invent nothing more effective than the stipulation which was intended to and did settle and fix the exact character and effect of both decrees. (Sizer v. Miller, 2 How. Pr. 44; Miller v. Harris , 19 Cal. 278.) Hagar, the Jimeno claimant, performed his part of the stipulation on the following day, and the Colus survey was accordingly approved on the second of the next month. Afterwards, upon the coming in of the Jimeno survey, Semple performed his part of it, by consenting to thedecree in that case. When this agreement was entered into, Semple, as Colus claimant, owned eight thousand eight hundred and seventy-six acres, and also owned to the extent of two thousand nine hundred and fifty-nine acres in the Jimeno. There was more than room enough within the exterior bounds of the grants for him to obtain both amounts. Hagar, to secure Semple's consent to such form of survey of the Jimeno as he desired, agreed that the two leagues belonging to the Colus should be first segregated and confirmed. This having been settled and accomplished by the final decree in the Colus case on the 2d of February, Semple and Hagar remained in Court as parties in the Jimeno case. They were both out of Court so far as the Colus was concerned, and the Colus itself was out of Court so far as the Court was concerned. Semple then, living up to the full spirit of his agreement, as he was bound to do, agreed to the Jimeno survey, and waived the reservation which he had made for his own protection as a Jimeno owner. If the agreement, by reason of such reservation, seemed, in the first instance, to give him an undue advantage, his after waiver of the reservation made it mutually fairand beneficial to both parties. To hold that Semple's consent in the Jimeno case should bind him, and that Hagar's consent in the Colus case should be ineffectual for the purpose which it was understood to accomplish by both parties, would destroy the mutuality of the contract by giving to one party and denying to the other all the benefits of it.
JUDGES: Rhodes, J. Mr. Chief Justice Currey did not express any opinion.
OPINION
RHODES, Judge
The case is presented on a statement which contains a summary of the pleadings and the findings and judgment. The contest grows out of a conflict between the surveys of the Jimeno Rancho and the Colus Rancho. The facts in relation to the title to each of those ranchos, the confirmation of the titles, the official surveys, the confirmation of the surveys by the District Court, the appeals to the Supreme Court of the United States from the decrees confirming the surveys, and the dismissal of the appeals are substantially the same as are stated in Treadway v. Semple , 28 Cal. 652. We did not, in that case, nor do we in this, intend to lay down any new rules or principles for the government of that very perplexing class of cases growing out of a conflict of surveys, but wish simply to give effect to the Act of Congress of the 14th of June, 1860, in regard to the survey and location of private land claims in California, and in so doing, to follow the construction of the Act adopted by the Federal Courts.
In Rodriguez v. United States, 1 Wal. 587, those holding title under the Castro Grant, contested the survey of the Sanchez Grant. The Castro Grant had been confirmed, surveyed, and patented prior to the passage of the Act of Congress of June 14th, 1860. To the objection that the location of the Sanchez Grant could not be sustained, so far as it conflicted with the Castro Grant as surveyed and patented, the Court made two answers. First--That the pending proceedings were instituted to determine where the Sanchez Grant ought rightfully to be located, and as the claimant of the grant was not, and had no opportunity to be, a party to any of the proceedings by which the Castro Grant was confirmed, surveyed, or patented, he was not bound by either the decree of confirmation, the survey, or patent; and Secondly--That those claiming title under the Castro Grant had made themselves parties to the pending proceedings, and must be bound by its results. The language of the Court plainly indicates, that it was considered that the second was a complete answer to the objection raised to the location of the Sanchez Grant; and this was accepted as the correct doctrine by this Court in Treadway v. Semple. In that case, in considering the effect of the final confirmation of the Jimeno survey upon the title of Semple, the defendant in that case and the plaintiff in this, as determined by the prior confirmation of the Colus survey, it is said: " This must be regarded as an adjudication between the parties and with the consent of the defendant, that the plaintiff's prior grant is properly located, and that the defendant's subsequent grant to the extent of the interference was improperly located, and this determination is final and conclusive upon the right of the parties."
The plaintiff in this case does not controvert the doctrine announced in that case, and indeed he relies upon it to show title in himself under the confirmation of the survey of the Colus Grant; but he endeavors to avoid its force, when invoked to uphold another and subsequent confirmation, to which proceeding he was a party. The facts of that case and this are the same, so far as they have any bearing on this question, except that in this case it is found that the plaintiff and George Hagar, the then claimant of the Jimeno Grant, entered into a stipulation on the 4th of January, 1861, before the confirmation of the survey of either rancho, by which Hagar withdrew his intervention in the matter of the survey of the Colus Ranch; and Semple withdrew his intervention in the matter of the survey of the Jimeno Rancho, " save and except for the sole purpose of opposing its location over and upon the survey of the said Colus Rancho, should such effort be made." The stipulation, whatever might have been its value in regulating the decree to be entered, could not by any possibility control or impair the conclusiveness or effect of the decree after it was entered. And besides this, the fact appears in this case, as in Treadway v. Semple, that when the decree confirming the survey of the Jimeno Grant was pronounced, Semple, intervenor, was present in Court and consented to said decree.
It is urged with much earnestness, that as the claimant of the Jimeno Grant was a party to the proceeding for the confirmation of the survey of the Colus Grant, he is bound by the decree, and that it is conclusive as to him, and is beyond the reach of attack in his subsequent proceedings to confirm the survey of the Jimeno Grant. If such was the case, he should have set up that fact as an objection to the confirmation of the survey of the Jimeno Grant; but if he failed to present that objection, or if presented it was overruled, he could not afterward rely upon that fact as a ground of collateral attack upon the decree. He would occupy no better position in that respect than would a defendant to an ordinary civil action, holding a good bar to the action, which either is not presented or is overruled by the Court. And besides this, his objections, whatever they may have been, are removed by his consent to the decree.
It is impossible to see how the plaintiff can avoid the authority of Treadway v. Semple, for the point now made was necessarily involved in that case. To succeed he must overthrow that case, and that cannot be done without overruling the case of Rodriguez v. United States. The Act of June 14th, 1860, declares the value and effect of a survey in the following terms: " And the said plat and survey, so finally determined by publication, order or decree, as the case may be, shall have the same effect and validity in law, as if a patent for the land so surveyed had been issued by the United States; " but the Act does not specify whether the patent, to which the survey is declared to be the equivalent, is one of the character described in the fifteenth section of the Act of Congress of March, 1851, to ascertain and settle private land claims in the State of California--which it is provided " shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons" -- or whether it is one of a higher and more conclusive grade. No difference is expressly assigned between the value of a survey that becomes final by the approval and publication of the Surveyor-General, and one that is confirmed by the District Court. It is very clear, however, that a survey becoming final in the first mode, could not directly divest or impair the title that had already vested in a third person under a patent issued by the United States, because the title having been conveyed by the United States, there was nothing left to be passed by the ministerial act of the Surveyor-General. A survey that has the support of a decree of confirmation of the District Court, may have a very different and much greater value and effect. But if this question were now for the first time presented, in connection with the complicated facts found in this case, it might admit of a serious doubt, whether by this Act, with the " prompt and summary decision of all controversies on surveys and locations" therein provided for, it was also intended to create a new form of action for the trial of conflicting titles to land between adverse claimants. However this may be, we feel justified in following the construction adopted by the Supreme Court of the United States as we understand the decision in Rodriguez v. United States, and we are the more inclined to do so, because counsel have not called in question the authority of that case.
Judgment affirmed.