I. The patent, in this case, vested in the plaintiff " a good and valid title, in fee simple, to the lands therein described." Such is the language of the act under which this patent issued.
The Act of Congress of 1841 operated as a present grant to the State the moment the selection was made, without any patent from the United States. (Foley v. Harrison, 15 How. 433; Wilcox v. Jackson, 13 Pet. 498; Summers v. Dickinson, 9 Cal. 554; Opinions U.S. Attorney-General, 8 vol. 247, 253, 254, 390.)
In pursuance of that act, this State has passed various laws, providing for the selection of these lands; and under these laws, the lands described in the plaintiff's patent were selected. But it is insisted that these lands were reserved from sale, and consequently from selection, and to sustain this, the defendants' counsel refers to the Acts of Congress of 1841, of 1844 and of 1853.
But a careful examination of these acts shows that they do not reserve town sites from sale, within the exception of the Donation Act, but merely reserve them from entry under the preemption laws, until the commencement of the public sale of the body of the land in which they are situated.
II. The defendants, being destitute of title, have no right to attack the patent.
1. Settlers upon public land have no title; at least, not until they have done some act towards its purchase or preemption. (Burgess v. Gray, 16 How. 48, 65; Merrill v. Le Grand, 1 How. (Miss.) 150; Craig v. Tappan, 2 Sandf. Ch. 78; 8 S. & M. 234, 268; Wynn v. Morris, 20 How. 3 -6; United States v. Brown, 4 McLean, 378.)
2. Without some title, defendants had no right to attack the patent, and the District Court, therefore, did not err in ruling out the proof. (Moore v. Wilkinson, 13 Cal. 478; Boggs v. Merced M. Co. 14 Id. 279; Yount v. Howell, Id. 465.)
And this principle is fully sustained by the following cases: Bagnell v. Broderick, 13 Peters, 450; Burgess v. Gray, 16 How. 48; Minter v. Crommelin, 18 Id. 87; Cooper v. Rob erts, 18 Id. 173, 182; Spencer v. Lapsley, 20 Id. 273; 7 Barb. 621; Jackson v. Lawton, 10; Johns. 23; Wiggins v. Lusk, 12 Ill. 132; Brewer v. Manlove, 1 Scam. 156; Crommelin v. Minter, 9 Ala. 594; Boyce v. Papin, 11 Miss. 16.
3. A patent cannot be impeached in a collateral action, for any matter dehors, but only in a direct action brought by the Government for that purpose, in equity, by scire facias or information. (Yount v. Howell, and Moore v. Wilkinson, cited supra; Gregory v. McPherson, 13 Cal. 562; White v. Bumley, 20 How. 247; Spencer v. Lapsley, 20 Id. 272; Field v. Seabury, 19 Id. 332; Cooper v. Roberts, 18 Id. 173; 3 Pet. 320; 7 Wheat. 212, 120; 13 Pet. 449; 5 Wheat. 293; 6Cow. 281; 4 Bibb, 329, 7 Barb. 621; 4 Monroe, 51; 6 Md. 104; 2 Ohio, (N. S.) 216; 15 Geo. 491; 10 Id. 465; 7 B. Monroe, 80.)
III. The locations could be made before the survey of the United States. The Act of 1841 requires the locations to be made " conformably to sectional divisions and subdivisions." " Conformably to," means in like manner, or method. It does not require them to await a survey by the United States. It no where says so. On the contrary, it says, " shall be located in parcels conformably to," & c. If it had intended otherwise, the act would have said, " shall be located in sectional divisions, as made by the United States Survey." The Legislature has provided that, after the United States survey, the lines of the locations shall be made to conform to the lines of such survey. Theidea of subsequently shifting, swinging or conforming lines of a survey to a subsequent survey, is not a new one in that act.
It is exactly the plan required in the Act of Congress, providing for preemptions on unsurveyed lands.
It is submitted, that certainty is all that is aimed at by the Act of Congress, and if that can be equally attained by a plan of selection prior to the survey, there is nothing in the policy of the Government, nor in a just interpretation of the act, which would operate to delay the selections to be made by the State, until after a survey. Probably four-fifths of the lands derived under the Act of 1841, have been selected in the same manner; and no com plaint has ever arisen on the part of the United States, of want of conformity to her plans of survey, or of any embarrassment arising from the State's action.
IV. The location of lands belongs to the political department of Government, and the acts of public officers therein cannot be attacked in a collateral action, especially in a case like this, where the law provides for the trial of contests before the Register of the State Land office and the District Courts, prior to the issuing of the patent. In such case, the decision of the Register is res judicata .
It would impose a great hardship upon holders of title under a patent, if in every little petty action of ejectment--perhaps for land of little present value--the defendant could compel them to prove every prerequisite on which the patent is founded. The State has especially provided how the matter may be contested oncefor all, and thus evidently intended to relieve the patentee from such a burden--if it could be imposed upon him under the rules of law.
Where the law has referred the decision of a matter to the sound discretion of a public officer, upon the facts of which he is the appropriate judge, his adjudication becomes conclusive. (Allen v. Blunt, 3 Story, 742.)
The decision of land officers, in respect to the right of preemption, is conclusive. ( 16 Ark. 25 ; 14 Ill. 343 ; 13 Ala. 137; 9 Mis. 183; 16 How. 64 .) The certificate of the surveyor, authorized by law to locate lands is sufficent proof as to the performance of all the acts required by law; and the parties cannot go behind it. ( 5 Cranch, 234 ; 3 Wheat. 594; Haydel v. Dufresne, 17 How. 23 .)
Congress appropriated a certain quantity of lands for schools, to be selected by the Secretary of the Treasury, out of any unappropriated public land. Held, that the selection by the Secretary is conclusive. (Campbell v. Township No. 1, & c. 12 How. 244 .)
JUDGES: Field, C. J. delivered the opinion of the Court. Baldwin, J. and Cope, J. concurring.
OPINION
FIELD, Judge
On petition for rehearing, Field, C. J. delivered the opinion of the Court--Baldwin, J. and Cope, J. concurring.
We do not find any considerations advanced in the petition for rehearing, which were not passed upon in the opinion already delivered. The Act of September 4th, 1841, does, as we stated, require the locations of the State to be made " conformably to sectional divisions and subdivisions," but it does not require the State to postpone the selections until the survey of the United States. It is only with reference to the old States, designated in the first section of the act, that the clause determining the time of the selections applies. As to the new States, the interest in the 500,000 acres vests upon their admission into the Union, and the selections by them are only subject to three qualifications: First, they must not be of lands reserved from sale by any law of Congress, or the proclamation of the President. Second, they must be in parcels of not less than three hundred and twenty acres each. And third, the parcels selected must be in such form as to correspond with the survey of the United States, when made. The selections will not, of course, become absolute and definite until the survey; until then, the parcels selected may be subject to a possible reservation from sale; and when there is no such reservation, they may require some change in their exterior lines, so as to conform to the official sectional divisions and subdivisions. In the legislation of the State, provision is made so as to secure such conformity.
Rehearing denied.
Note.--It appears from the records in the office of the Surveyor-General of California, that, under the Act of May 23rd, 1852, authorizing the location of school warrants, 159,520 acres were located of unsurveyed lands.