Upon the facts, the principal question involved in the case is, whether a patent from the United States, founded upon a confirmed Mexican grant, is paramount to, and can override, a prior Mexican grant for lands held, occupied, and claimed by the first grantee, by specific boundaries, to the extent specified in the grant in conformity with its terms, and within the exterior limits therein described. The affirmative of this proposition ismaintained by the appellants; while on the other hand, it is contended by the respondent, that the prior grant accompanied by possession, with specific boundaries of the quantity of land granted, within the exterior limits described in the grant, conferred upon the grantee an absolute and indefeasable estate in the land so granted and occupied, which could not be divested by any subsequent grant by the Mexican Government, or the United States, who succeeded to the rights of that government, unless the title of the first grantee had been forfeited by due course of law, and such forfeiture duly declared by a tribunal of competent jurisdiction.
We do not pretend to controvert, as a general proposition, the doctrine set out in the first point of the argument contained in the brief of the appellants, filed by Messrs. Thornton, Williams & Thornton, that the decisions of the Supreme Court of the United States are a rule of decision to the State Courts, on questions involving the interpretation of treaties and the construction of Acts of Congress. But we do deny that the authorities cited from those decisions growing out of questions arising under the inchoate titles or concessions issuedby the Spanish authorities in Louisiana, have any application to the case at bar.
It has been argued that the first patent appropriates the land and extinguishes all claims of inferior dignity. But this view is not sustainable. The issuing of a patent is a ministerial act which must be performed according to law. A patent is utterly void and inoperative which is issued for land that had been previously patented to another individual. (Chouteau v. Eckhart, 2 How. 344; Les Bois v. Bramell , 4 Id. 449; Bissell v. Penrose , 8 Id. 7; Menard v. Massey, Id. 293; Mills v. Stoadard, Id. 345.) The cases of the U. S. v. Boisdore, (11 How. 69,) Glenn v. U. S., (13 Id. 250,) and Villemont v. U. S., (Id. 266,) cited in the case of Fremont, and others of a similar character, were all decided upon the same general principle, that there had been no severance of the land claimed from the public domain, and that the right of property still remained in the government.
The radical error on which the whole argument for the appellants rests consists in the application of principles and rules of decisions founded upon the laws of Spain and the United States in relationto the granting of the public domain, to grants of land made by the Mexican authorities in California, where the mode of granting and the rules for the segregation of the land granted from the public domain, were entirely different.
The difference between the two classes of cases is so clearly stated in the case of Fremont v. The U. S. that we need only refer the Court to the lucid exposition upon that point contained in the opinion of Chief Justice Taney, (17 How. 553-559).
In support, therefore, of the general proposition laid down in the first part of the argument, as the basis of the respondent's defense to the action, we shall endeavor to maintain the following points:
1st. That the grant to Armijo, of the 4th of March, 1840, vested in the grantee a present and immediate property in fee to the three leagues of land specified in the grant, within the exterior limits delineated on the map; and that his subsequent occupation and possession of the three leagues, in conformity with the terms of the grant and the provisions of the Mexican law, by metes and bounds, was a segregation of the land from the public domain, by reason of which the general gift became a particulargift, and the grant attached to the specific three leagues so held and occupied.
The first branch of this proposition can scarcely be considered an open question. See the decision of the Supreme Court of the United States, in the Fremont case, on this point, and the affirmance of the principle there laid down by this Court in the cases of Gunn's Adm'r v. Bates, (6 Cal. 263,) and in Palmer v. Boling, (8 Cal. 389); Ferris v. Coover, (10 Cal. 589).
It is contended, however, on the part of the appellants, that although the grant to Armijo might give him an immediate vested right to the three leagues of land within the exterior limits delineated on the map, yet that right could attach to no particular three leagues until there had been an official survey made by authority of the government, establishing the precise limits of the tract granted. We have already had occasion to call the attention of the Court to the broad distinction laid down by Chief Justice Taney, between cases arising under Spanish grants and the land laws of the United States, in relation to the disposition of the public domain, and those growing out of Mexican grants in California.
But it iscontended for the appellants that because, under the provisions of those Acts, a survey was necessary to complete the title, that being the mode of segregation prescribed by the law, therefore the same mode of segregation was requisite, under the laws of Mexico, in order to perfect the title of a grantee from that government.
The authorities cited have no application. Where the law requires a particular mode of segregation, that mode must be pursued before a severance can take place. But we cannot perceive the application of this, or the numerous other cases to the same effect cited in the briefs of the appellants, to the case presented by the record. For that purpose it would be necessary first to show that the laws of Mexico in force in California required a survey before the title could vest, and this they have utterly failed to do.
We hold the rule to be that where there is no locative description in the grant, and no possession or occupation under it, then, and then only, a survey, or some equivalent act by authority of the government, was necessary to segregate the land and give precision to the grant. On the other hand, where the grant contains sufficient words ofdescription to fix the locus in quo, and the grantee takes possession and occupies consistently with the calls of the grant, such description and occupation operate, per se, as a severance of the land from the public domain, and vest in the grantee an absolute and definite title to the land so granted and occupied. (Smith v. U. S., 10 Pet. 326; Lecompte v. U. S., 11 How. 127, 128; U. S. v. Clark, 8 Pet. 466, 467; U. S. v. Percheman , 7 Id. 89-93; U. S. v. Peralta, 19 How. 345.)
As to the effect of actual occupation and possession under the grant, we say, that an actual entry by the grantee under his grant, prior to the change of government, and continued occupation in accordance with its terms and the requirements of the law, operated as a severance of the land granted from the public domain, and gave full effect to the title. This proposition is fully sustained by the decisions of the Supreme Court of the United States and the Courts of Louisiana, in relation to Spanish concessions, and is likewise in strict conformity with the laws, usages, and customs of the Mexican Government in force in California, when the grants to Armijo and Solano were made. (U. S. v. Boisdore et al., 11 How. 63, 69; Id. 115; Lafayette v. Blanc, 3 La. Ann. 60; Hooter v. Tippet, 17 La. 109.)
The doctrine here laid down evidently contemplates three modes by which the land granted could be severed from the public domain.
1st. Where the descriptions in the grant were sufficient to identify the particular tract granted.
2d. Where the party entered under the grant and occupied the land, in conformity with its terms; and,
3d. By an official survey, when the description in the grant was vague and indefinite, and there had been no possession under it. As to the first and last mentioned modes of segregation, there would, we presume, be no conflict of opinion between the opposing counsel and ourselves, the second results necessarily from the doctrine laid down in the above cases.
Upon this branch of the subject, therefore, we contend in the second place
That, under the laws, usages, and customs in force in California, in reference to the granting of the public domain, and by the terms of the instrument itself, a grant of lands, such as we are considering, gave to the grantee the right to locate and occupy the quantityof land granted within the exterior limits described in the grant, and that such location and occupation, when made in accordance with the calls of the grant, and in conformity to law, was conclusive both on the grantee and the government.
The error of the argument of the appellant's counsel, on this point, consists in giving to the act of juridical possession the force and effect of a survey, as understood under the laws of Spain and the United States; and this, nothing can be more fallacious.
The approval of a grant by the Departmental Assembly was a prerequisite to obtaining juridical possession. (See Espediente in cases of Vaca and Pena, and the Archives in Surveyor-General's office; U. S. v. Reading, 18 How. 7; 10 Cal. 618.)
If, then, the juridical possession could not be given until after the approval, and the failure to obtain the latter did not affect the grantee's right and title to the land, as decided in the Reading case, neither would it be at all impaired by his failure to obtain the former. It had resulted from no default of his; he had done all that was incumbent upon him to perfect his title. He had entered upon the land, built a house, which wasinhabited by his family, in compliance with the imperative condition of his grant; he had stocked it with cattle, and inclosed and cultivated portions of it. Here his duty ended; and until the Governor obtained from the Assembly the approval of the grant, no juridical possession could be had. The failure, therefore, to obtain the juridical possession, where the grant had not been approved, could no more affect the title than the want of the latter formality. It results, then, from this view of the subject, that unless the possession and occupation of the grantee, in conformity with the terms of his grant, operated a segregation and perfected his title, there could be no severance of the land from the public domain in such cases, which embrace the majority of Mexican grants in California, and the title still remained in the government, a position which is well characterized by the learned Judge above cited, as startling.
As to the effect, under Mexican law, of prior occupation and possession, see cases as to the grant of Richard Berry; The Heirs of Wm. Fisher v. U. S. (No. 244, Docket late Land Commission); Espediente and Decree in case of Vaca above, to be found in the Archives.
2d. That the patent from the United States to Archibald A. Ritchie, of the 17th January, 1857, operated only as a quitclaim or relinquishment of title on the part of the government, and did not affect the rights of third parties; and that, so far as it conflicts with the vested rights of Armijo, and those claiming under him, by virtue of his grant of the 4th of March, 1840, the same is void and of no effect. (See Act of Congress, 3d March, 1851, for settlement of Land Claims in California, Sec. 15, 9 U.S. Statute, 631; Debate in U.S. Senate on the same, Cong. Globe, Second Session, 31st Congress, Vol. 18, pp. 428, 429; Act of 3d March, 1831, to create office of Surveyor-General for State of Louisiana, Sec. 6, 4th Stat. 494; Marsh v. Brooks, 8 How. 223; Barry v. Gamble, 8 Mis. 87; De la Houssaye v. Saunders, 4 La. 445; Broussard v. Gonsoulin, 12 Rob. La. 1-8; Jewell v. Porche, 2 La. 146; Polk v. Wendell, 9 Cranch. 99; 5 Wheat. 293; Stoddard v. Chambers, 2 How. 284; Choteau v. Eckhart, Id. 375; Les Bois v. Bramell , 4 Id. 449; Bryant v. Forsyth , 19 Id. 334; Bissell v. Penrose, Id. 317.)
There seems to be an idea pervading the argument ofthe opposite counsel, though not distinctly avowed, that a peculiar efficacy attaches to a patent from the United States which does not belong to other conveyances. They say: " That nothing but a patent will pass a consummate title, unless in case of a grant in fee by Act of Congress, or a grant of a specific parcel of land." Now, this might all be true under the rules prescribed by law for the granting and conveying of lands in the United States, but a very different system may have obtained in Mexico; and if a party could show that, according to the Mexican law, he had obtained a perfect title to lands, although it was by neither of the modes enumerated above, yet we apprehend that under the provisions of the treaty of cession, the United States and the tribunals of the country would be bound to respect it to the same extent as if he had obtained a patent from the United States. In our view, a patent from the United States is entitled to no more dignity or consideration, in a legal point of view, than any other instrument for the conveyance of real estate; and its effect must be tested and its language construed by the same rules which apply to other deeds. This is clearly illustratedin many of the cases cited above. (Stoddard v. Chambers, Bissell v. Penrose, Marsh v. Brooks, Chouteau v. Eckhart; 6 Cal. 263; 8 Id. 384; 10 Id. 589.)
4th. Where adjoining landholders agree upon a dividing line between their respective tracts, such an agreement is conclusive between the parties and their privies; and the admissions of the party making such agreements, made while owner of the premises, long continued occupation up to the agreed line, and long acquiescence by the parties in such line, are evidence from which such an agreement may be presumed. (Thacker v. Gardner, 7 Met. 484; Wray v. Berry , 9 N.H. 473; Houston v. Matthews, 1 Yerg. 116; Wilson v. Hudson , 8 Id. 398; Dibble v. Rogers, 13 Wend. 467; Adams v. Rockwell , 16 Id. 285; McCormick v. Barnum , 10 Id. 105.)
[In this connection, counsel discussed the effect of the award.]
Again: The patent to Ritchie is void, because issued after his death. (Act Cong. 5 U.S. Stat. 31.)
JUDGES: Field, J. delivered the opinion of the Court. Terry, C. J. and Baldwin, J. concurring.
OPINION
FIELD, Judge
This is an action of ejectment, for the recovery of a tract of land situated in the valley of Suisun, in the county of Solano. Both parties claim title under grants of the Mexican Governor of California, Juan B. Alvarado--the plaintiff under a grant issued to the Indian Chief, Francisco Solano, on the twenty-first of January, 1842, and the defendant under a grant issued to Jose Francisco Armijo, on the fourth of March, 1840. The grant to Solano is of land known by the name of Suisun, and covers four square leagues, within exterior limits embracing about eight leagues. The grant to Armijo is of land known as Tolenas, and covers three leagues, within limits embracing from twelve to twenty leagues. The maps referred to in both grants cover the land in controversy. The grant to Solano was presented to the Board of Land Commissioners for confirmation by Archibald A. Ritchie, who had become, by purchase, interested in the land granted; and the same was confirmed to him by the Board in January, 1853, and subsequently by the United States District Court, in November, 1853, and the decree of confirmation was affirmed on appeal by the Supreme Court of the United States, at its December Term, 1854. In July of the following year (1855) the four leagues specified in the grant were laid off and surveyed, under the directions of the Surveyor-General of the United States for California, and the survey was approved and authenticated by that officer. In conformity with this survey, a patent on behalf of the United States was issued to Ritchie, bearing date on the seventeenth of January, 1857, for four leagues of land, with the specific description of the official survey. This patent covers the land in suit. The grant to Armijo was likewise presented to the Board of Land Commissioners, and was rejected. On appeal to the District Court of the United States, the decision of the Board was reversed, and the claim under the grant confirmed. From the decision of the District Court the case is now pending, on appeal, in the Supreme Court of the United States.
Both grantees resided within the limits of their respective grants, and it is insisted by the counsel of the defendant that the evidence establishes the fact that Armijo occupied and claimed three leagues of his tract, marked by metes and bounds, and that such occupation and claim operated as a segregation of that specific quantity, and the grantee's right thereto could not be impaired by the subsequent grant to Solano, and the patent thereon to Ritchie.
We shall pass over any consideration of the question as to the application of the doctrine of relation, in virtue of which the plaintiffs contend that the grant to Solano, though subsequent in date to that to Armijo, relates back to the provisional decree of Vallejo, made in January, 1837, as immaterial to the determination of the case. We shall assume, also, for the purposes of the appeal, that Armijo occupied and claimed, from the entire quantity comprehended within the map referred to in his grant, three specific leagues, and that these covered the land for the recovery of which the present suit is brought. We propose to place our decision upon grounds which will settle the controversy in the present case, and serve as a rule in controversies of a similar character; and for that purpose we shall disregard the minor points presented by the record, and confine ourselves principally to the questions which properly and necessarily arise from the claim asserted by the defendant, that the occupation and possession by Armijo, under his grant of three leagues, by designated metes and bounds, was a location of that specific quantity within the exterior limits described in the grant, effectuating its segregation from the public domain, and attaching thereto the grant, and making the title of the grantee perfect against even a subsequent patent of the United States. These questions relate to the nature of the titles conferred by the grants; to the authority by which location can be given to the specific quantity granted where that is less than the quantity contained within the exterior limits of the grants; to the effect of a patent of the United States in such cases, and who constitute the third persons mentioned in the 15th Section of the Act of Congress of March 3d, 1851, against whom the confirmation and patent are not conclusive.
The grants to Solano and Armijo both purport to convey the land designated therein--limiting its extent in the first case to four, in the other to three, leagues. Both are subject to similar conditions, with the exception of one peculiar to the grant to Armijo, against the molestation of the Indians there located and his immediate neighbors. Both provide for the free and exclusive enjoyment of the land by the grantees, and for such use and cultivation of it as they may think proper. Both require juridical possession to be given by a public officer of the vicinity, by whom the boundaries are to be designated. Both reserve any surplus over the quantity specified to the uses of the nation. Both are made liable to denouncement for failure to comply with their conditions, and both are subject to the approval of the Departmental Assembly. The grant to Solano received such approval--the one to Armijo did not; but this fact does not impair the title which passed to the latter. The effect of the approval was only to discharge the grant to Solano from liability to defeasance by the Mexican Government, except for breach of its conditions subsequent. Both of the grantees acquired rights of property, which were not impaired at the date of the treaty of Guadalupe Hidalgo, and were protected by the guaranties of that instrument, and there is no law which authorized a forfeiture for any act or omission since. (Opinion of U.S. Supreme Court in the Sutter Case.)
The grants in question are similar in the title they convey to the one issued to Sutter, which was the subject of consideration in the case of Ferris v. Coover, (10 Cal. 589,) and, like that, passed an estate in the land embraced within their exterior boundaries, to the extent of the specified quantity, to be subsequently laid off by the government. They were issued in pursuance of the laws and regulations of Mexico for the colonization of the territories, the object of which was the settlement of the vacant lands of the Republic; and for that purpose were made subject to the usual condition in such cases, of cultivation and occupancy. The first condition in the grant to Solano provides for his inclosure of the land, with a reservation of the crossings, roads, and servitudes, and for his free and exclusive enjoyment of the same, with such use and cultivation as he may think proper, and requires the construction of a house and its inhabitation within one year. Its language is:
" That he may inclose it without prejudice to the crossings, roads, and servitudes, and enjoy it freely and exclusively; making such use and cultivation of it as he may see fit, but within one year he shall build a house, and it shall be inhabited." The second condition in the grant to Armijo is substantially the same, so were the second condition in the grant to Alvarado, (Fremont v. United States, 17 How. 545); the third condition in the grant to Reading, (United States v. Reading, 18 How. 2); and the first condition in grant to Jimeno, (United States v. Larkin, 18 How. 559). Indeed, the same condition, substantially, was contained in all the colonization grants issued to individuals by the Mexican Government of California. Whilst it required the construction of a house, it conferred a right of entry upon the land, without which the requirement would have been incapable of fulfillment. Whilst it enforced the inhabitation of the house when constructed, it gave a right to the possession, use, and enjoyment of the land, without which the inhabitation would have been of little benefit to the grantee, and the policy of the government in the settlement of the country would have been entirely frustrated.
But though the grants passed a right of possession to the land, they conferred only a vested interest in the specific quantity designated, to be afterwards measured and laid off by the officers of the government. The conditions required a juridical possession to be given by the magistrate of the vicinage, who was to cause a survey of the specific quantity granted, to be made in accordance with the provisions of the law, the surplus being reserved for the use of the nation. The juridical possession was to accompany the official survey, and in this way alone could a segregation of the given quantity take place under the Mexican authorities, from the public domain. The officers by whom, and the manner in which, the measurement was to be made, were distinctly designated by the law. The grantee could not, for himself, make the segregation. " No person," said the Mexican law, " though his grant be older than others, can take possession for himself, or measure, or set limits to his landed property, (propriedas territoriales ) unless it be done by judicial authority, with the citation of all those who bound upon him, (colindantes) for whatever is done contrary to this will be null, of no validity or effect." (Ordinanzas de Tierras and Aguas by Galvan, edition of 1855.) As the grantee could not locate his land by his own survey, it would seem a necessary conclusion that he could not do so by mere occupation, and the assertion of a claim to any particular place.
The right to make the measurement and to give the juridical possession remained with the government, and could only be exercised by its officers. That right, like all other public rights, passed, with the transfer of the territory, to the government of the United States, and is now to be exercised in accordance with its laws. The estate, which vested in the grantees upon the execution of the grants, remains unaffected by the change of government; but the survey and measurement are to be made--not in accordance with the laws of the old government, which were abrogated with its authority, but in accordance with the policy and laws of the new government. The right to survey and segregate the specific number of leagues granted to Solano and Armijo, respectively, under the legislation of Congress, belongs to the Executive Department, and cannot be exercised by the Courts of Justice. The Courts can ascertain and fix the position of boundaries which are designated, but they cannot give boundaries to a specific quantity which has none and lies in a larger tract. To give precision and location to such specific quantity, a survey by the department is essential. The authorities to this effect are numerous and decisive. In Stanford v. Taylor, (18 How. 409,) the plaintiff claimed title to the land in dispute under a Spanish concession of 1785, which was confirmed in 1811, and a survey ordered conformably to the possession. The concession described the land as lying along the River Des Peres, from the north to the south, and as bounded on one side by the lands of Louis Robert, and on the other by the domain of the King. The survey was not executed until 1834, when the Surveyor ordered the land to be located west of Robert's tract. The plaintiff insisted that the land granted and confirmed adjoined Robert's tract on the east, and that the location was so plainly apparent on the face of the concession as not to require a survey, and offered evidence to show that the possession of the confirmee was part of a tract of land east of Robert's tract and adjoining it, and, if located there, would include the premises in controversy. The Court rejected the evidence, and allowed the defendant to introduce the official survey, and excluded evidence offered by the plaintiff to show that this was improperly made west of Robert's tract instead of east of it, and instructed the jury that, as the parties agreed that the official survey of the confirmation under which the plaintiff claimed did not include the premises in suit, they ought to find for the defendant. In considering the exceptions taken to the ruling and instructions, Catron, J. in delivering the opinion of the Court, said: " The law is settled, that where there is a specific tract of land confirmed according to ascertained boundaries, the confirmee takes a title on which he may sue in ejectment. The case of Bissell v. Penrose (8 How. 317,) lays down the true rule.
" But where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed and severed from the public domain and the lands of others, then it is not open to controversy that the title attaches to no land; nor has a Court of Justice any authority in law to ascertain and establish its boundaries, this being reserved to the Executive Department. The case of West v. Cochran (17 How. 403,) need only be referred to as settling this point. And the question here is, whether the concession to Perry (the confirmee) is indefinite and vague, and subject to be located at different places." And, after considering the description, the Court concluded that the uncertainty of the out boundary was too manifest to require discussion to show that a public survey was necessary to attach the concession to any land.
In Ledoux v. Black, (18 How. 475), the Court, in speaking of the Act of Congress of 1820, confirming the plaintiff's claim, held that the Act did not tend to locate the claim and sever the land from the public domain, and that that could only be done by a public survey .
In Willot v. Sanford, (19 How. 81,) the defendants derived title under one Disonet, whose claim was confirmed by Act of Congress, in 1816. The land was surveyed in 1817, by authority of the United States, and a patent was issued in 1850. There was a conflict between this survey and the survey of the claim upon which the plaintiff relied. The Circuit Court instructed the jury that the survey and patent under which the defendant claimed were not conclusive evidence that the land they embraced was correctly located and surveyed according to the confirmation; and if they believed that the land sued for was not within the confirmation of the legal representatives of Disonet, although it might be within the survey and patent, then the survey and patent would not protect the defendants; but the Supreme Court held that Courts of Justice had no authority to disregard surveys and patents when dealing with them in actions of ejectment, and reversed the judgment of the Court below. (See, also, Bissell v. Penrose, 8 How. 317; West v. Cochran , 17 Id. 403; Cooper v. Roberts , 18 Id. 173; Bryan v. Forsyth , 19 Id. 334; Ballance v. Papin , 19 Id. 343.)
The matter of surveys of floating grants belongs, then, to the Executive Department of government, under the legislation of Congress on the subject of public lands. With such surveys the Courts of Justice have nothing to do. Whether in justice to the claimants the location should have been different from the official survey is none of their concern. That belongs to a department of government whose action is not subject to review by the Judiciary. The Courts, it is true, must determine whether prior rights of third parties have been interfered with by such survey and the patent following thereon, but they cannot correct the survey or patent and locate the land where, in their opinion, it ought originally to have been made.
The case of Fremont v. The United States (17 How. 542,) is in point, as to the estate which passed under the grants to Solano and Armijo, and the authority by which precision and location are to be given to the specific quantity granted. In that case, the grant to Alvarado was for ten leagues, within a tract of much greater extent, and the Court held that as between the government and the grantee, the latter had a vested interest in the quantity of land mentioned in the grant. " The right to so much land," said the Chief Justice, in delivering the opinion, " to be afterwards laid off, by official authority, in the territory described, passed from the government to him by the execution of the instrument granting it." And in illustration of the principle asserted, the Court cited the case of Rutherford v. Greene's Heirs, reported in 2 Wheat. 196, which arose upon an Act of the State of North Carolina, of 1782, providing that twenty-five thousand acres of land should be allotted to General Greene and his heirs, within a tract reserved for the use of the army, to be laid off by Commissioners appointed therefor. The Commissioners, in pursuance of the Act, allotted the twenty-five thousand acres, and caused the tract to be surveyed and returned to the proper office, and the question upon which the case turned related to the validity of the title of General Greene and the date at which it commenced. The Court held the general gift of twenty-five thousand acres, lying in the territory reserved, became, by the survey, a particular gift of that quantity within the survey, and concluded a full examination of the title by saying that it was the clear and unanimous opinion of the Court, " that the Act of 1782 vested a title in General Greene to twenty-five thousand acres of land, to be laid off within the boundaries allotted to the officers and soldiers, and that the survey made in pursuance of that Act, and returned March 3d, 1783, gave precision to that title, and attached it to the land surveyed ."
The Court, in the Fremont case, observes, in reference to this case of Rutherford v. Greene's Heirs, that " it recognizes as a general principle of justice and municipal law, that such a grant, for a certain quantity of land by the government, to be afterwards surveyed and laid off within a certain territory, vests in the grantee a present and immediate interest. In the language of the Court, the general gift becomes a particular gift, when the survey is made; and when this doctrine has been asserted in this Court, upon the general principles which Courts of Justice apply to such grants from the public to an individual, good faith requires that the same doctrine should be applied to grants made by the Mexican Government, where a controversy arises between the United States and the Mexican grantee." And, as to the authority by which the survey was to be made, the Court holds this language: " Under the Mexican Government, the survey was to be made or approved by the officer of the government, and the party was not at liberty to give what form he pleased to the grant. This precaution was necessary, in order to prevent the party from giving it such a form as would be inconvenient to the adjoining public domain, and impair its value. The right which the Mexican Government reserved to control this survey passed, with all other public rights, to the United States, and the survey must now be made under the authority of the United States, and in the form and divisions prescribed by law for surveys in California, embracing the entire grant in one tract."
The authorities cited are conclusive of the questions we have been considering. Following them, we must hold that the grants to Solano and Armijo passed a present and immediate interest in the quantity of land specifically designated in their respective grants, to be afterwards surveyed and laid off within the exterior limits of the general tracts by the government; that such survey could only be made under the former government by its officers, and could not be made by the grantees themselves; that the right of survey passed, with other public rights, to the government of the United States, and is to be exercised in pursuance of its policy and in conformity with its laws; that by its legislation, the subject of surveys is intrusted to the Executive Department; that the location of confirmed grants, when the quantity granted is without specific boundaries, lying within a larger tract, rests exclusively with such department, and cannot be reviewed or corrected by the Judiciary, but is binding and conclusive upon it in actions of ejectment, except only, when the patent issued thereon conflicts with prior rights of third parties, and then its inconclusiveness is maintained only so far as may be necessary for the protection of such prior rights. The learned counsel for the defendant has presented with great force the injustice which may follow from holding that the government can compel a grantee to abandon that part of the tract embraced in the exterior limits of his grant, upon which he has settled and made his improvements, and to take some other part; but his observations should be addressed to the officers of government, under whose supervision and control the survey and location are placed. To their sense of justice the appeal is to be made, and with them the observations would be entitled to the highest consideration. The Courts of the country possess no authority to act upon them. The right to measure and set apart the specific quantity was not left to the grantee, as we have observed, under the Mexican Government, nor is it permitted under our own. Occupation and cultivation could have no greater effect than a private survey. They were without binding effect upon the former government, and are equally inoperative under the new. In Smith v. The United States, (10 Peters, 335,) the Court said: " The laws of the United States give no authority to an individual to survey his grant or claim to lands; he may mark lines to designate the extent and bounds of his claim, but he can acquire no rights thereby. The only effect which we can give to this private survey is to consider it as a selection by the petitioner of that piece of land, as a part of what he was entitled to locate, in virtue of his general grant."
In United States v. Hanson, (16 Pet. 199,) a private survey was considered and rejected, as being of no force or validity. In United States v. King, (3 How. 785,) the Court rejected a survey made by the officer of the government after his authority had ceased. In Les Bois v. Bramell, (4 How. 457,) in speaking of a survey of one Mackay, the Court said it " was a private one, made at the instance of the inhabitants of St. Louis, and was not binding on the rights of any one; " and in Mackay v. Dillon, (4 How. 447,) of the same survey: " It was in its nature a private survey, not binding on the United States." In Glenn v. The United States, (13 How. 256,) in referring to surveys offered in evidence, the Court said: " The surveys produced to us are private ones, and of no value in support of the claim."
The location of the specific quantity may be made by a survey of such quantity, or by grants with specific boundaries of such parts of the general tract as will reduce it to such specific quantity. Either course will operate to give precision to the claim of the grantee. So long as there remains within the general tract sufficient land to satisfy the quantity specified in his grant, the grantee is without remedy. To this effect is the language of Mr. Chief Justice Taney, in the Fremont case. " It is true," he says, " that if any other person within the limits where the quantity granted to Alvarado was to be located, had afterwards obtained a grant from the government, by specific boundaries, before Alvarado had made his survey, the title of the latter grantee could not be impaired by any subsequent survey of Alvarado. As between the individual claimants from the government, the title of the party who had obtained a grant for the specific land, would be the superior and better one; for by the general grant to Alvarado, the government did not bind itself to make no other grant within the territory described, until after he had made his survey." (17 How. 558.)
To the same effect is the language of the Supreme Court of Louisiana, in Lott v. Prudhomme, (3 Rob. 293,) cited in the opinion rendered in Ledoux v. Black, by the Supreme Court of the United States. " We then held," referring to the previous adjudication, " that when the boundaries of a confirmed claim are vague and uncertain, and are to be fixed by the operations of the surveying department, or such confirmation is only the recognition of a pre-existing right or claim, and before the survey and location the government sells a part of the land not necessarily embraced within the tract confirmed, the title of the purchaser will prevail."
This view disposes of the questions raised upon the award between Vallejo, the vendor of Ritchie, and Armijo, made in August, 1847. We are of opinion that the correct construction of the award makes the ridge and not the stream the dividing line between the two claims; but if we admit, for the purposes of the argument, that Suisun Creek was intended by the parties, it is difficult to perceive how this fact can avail the defense. Until the action of the government, whilst the claimants rested only on their grants, the award would have been conclusive in any controversies between them. But the government having wisely, or otherwise, issued a patent to Ritchie of a portion of the land included in the general tract designated in the grant to Armijo, (assuming this to be the fact--and we do so only for the argument,) it does not lie in the mouth of the latter to complain, there still remaining of such general tract more than sufficient to satisfy the specific quantity granted to him. The award could not bind the government, or control the effect of its patent. It was at most only effective as to the lines of the exterior limits of the general tracts claimed by the grantees. If the patentee accepted the land described in his patent as answering his claim, it is not perceived how any other persons can complain, even if a portion of the land thus taken was without the boundaries of his original claim.
The limitation of quantity was a controlling condition of the grants in question, and the delivery of juridical possession was an essential ceremony, under the government of Mexico, to perfect the title of the grantees to the specific quantity designated. This was expressly held in the case of United States v. Fossat, (20 How. 426). Until such possession, which was accompanied by a survey, the title of the parties attached to no definite portion of the tract. There is no evidence in the record that such juridical possession was given under the former government to either Solano or Armijo, although in the opinion of the Supreme Court of the United States in the United States v. Ritchie, (17 How. 537,) it is said that the grantee, Solano, was put in juridical possession in conformity with the conditions of his grant. If this were the fact, it does not appear in the transcript before us, and the rights of the parties are treated as though no such fact existed. The right, then, which the Mexican Government reserved to itself to control the location, having passed to the government of the United States, the duty to exercise such right devolved upon the latter. This duty was discharged by the survey following the final confirmation, and from that time the title of the parties claiming under Solano became perfect. On the other hand, the title under the grant to Armijo did not attach to any three specific leagues; it constituted only an interest in such quantity, to be afterwards laid off by competent authority. Such general interest--not attached to the land in controversy, but, by the action of the officers of government, excluded from it--cannot be set up as a defense to the claim of the plaintiffs. The patent is conclusive evidence of the right of the patentee to the land described therein--not only as between himself and the United States, but as between himself and a third person, who has not a superior title from a source of paramount proprietorship. The patent was not necessary to invest Ritchie with the title, as his title existed at the cession of the territory, and the only act to render it perfect to a defined and particular tract, was an official segregation. The title was recognized by the decree of final confirmation, and the approved survey attached it to the specific land. The essential and substantive acts under the law of 1851 were the confirmation and survey. The patent in such cases is only evidence of the pre-existing title made perfect by these acts. Upon the original grant, final confirmation, and approved survey, the plaintiffs might have relied, without reference to the patent. The survey following the final confirmation was made and approved in July, 1855; Ritchie died in July, 1856, and the patent bears date in January, 1857. At the date of the survey every substantive act required for the vesting of a perfect title had been performed. The subsequent issuance of the patent only involved duties of a mere ministerial character, and by a just application of the doctrine of relation, the patent must be regarded as if it had received the signature of the President at the completion of the segregation of the four leagues. In Landes v. Brant, (10 How. 370,) the Supreme Court of the United States held that a confirmation made in 1811, and a patent issued in 1845, related to the first act necessary to complete the title, that of filing the claim in 1805, and that intermediate conveyances made by the confirmee, or by the Sheriff in his behalf, of a day after the first substantial act, were covered by the legal title, and passed that title to the alienee. In that case, Clamorgan, the patentee, had died in 1814, and the Court held that according to the common law the patent was void for want of a grantee, but that this defect was obviated by the Act of Congress of May 20th, 1836, declaring: " That in all cases where patents for public lands have been, or may hereafter be issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to, and become vested in, the heirs, devisees, or assigns of such deceased patentee, as if the patent had issued to the deceased person during life." This law, the defendants contend, does not aid the patent to Ritchie, as the patent is not for public lands. It may be true that the land embraced in the patent is not in the strict meaning of the term public, but we think it was the intention of the Act to cover all cases where any rights belonging to the United States existed in lands which could be relinquished by patent, even though an interest in the same was also held by the patentee himself. The United States possessed the right to make the location of the four leagues in any part of the general tract they thought proper. By their act the identical land patented might have been reserved as a part of the public domain--and there was, therefore, such a public interest possessed in the land as to include the latter within the spirit of the Act of Congress in question. We think the objection untenable, and that whatever rights could have passed to Ritchie by the patent, had he been living at the date of its issuance, inured to, and became vested in, his heirs or assigns, represented by the plaintiffs in this action.
The third persons against whose interests, by the 15th Section of the Act of 1851, the final confirmation and patent are not conclusive, are those whose title is at the time such as to enable them to resist successfully any action of the government in respect to it. Parties holding claims which may be located without the boundaries of the patent, and still within the limits of the general tract designated in the grants to them, do not constitute such third persons, nor do parties who hold claims only upon the bounty of the government, nor do intruders, nor even settlers, having certificates of sale, unless the same antedate the presentation of the claim of the patentee to the Board of Land Commissioners for California, to which period the patent takes effect by relation. The interests of the third persons intended by the Act would have been as effectually protected without its provisions as they are now by them. The section in question is only a legislative recognition of a principle of law and justice, applicable to all grants.
From the conclusions to which we have arrived, after the most mature consideration, it is clear that the plaintiffs were entitled to recover upon the facts conceded by the record, and that the first, third, sixth, seventh, eighth, and ninth instructions, requested by the plaintiffs, were proper, and should have been given, and the Court below erred in refusing them. The instructions requested and refused are as follows: 1. That if the jury believe, from the evidence, that the Suisun and Tolenas grants embrace, within their exterior boundaries, a much larger quantity of land than called for by both said grants, and that neither of said grants was located or segregated under the Mexican Government, and that the Suisun grant has, under the United States Government, been finally surveyed, and located, and patented; but that the Tolenas grant has not been finally confirmed and located by an officer, or under the authority of the United States; that, in such case, the location and patent of the Suisun Rancho, made and granted by the United States, must prevail in this action, and a verdict should be rendered in accordance with this instruction.
3. " The location of land granted by the Mexican nation, in pursuance of the colonization law of Mexico of 1824, and the regulations of 1828, belonged to, and was to be made by, such government; and whenever such location was not made under the Mexican Government, the right to make it passed to the United States, under the treaty of Guadalupe Hidalgo."
6. " That in an action of ejectment by the person or persons entitled under a patent of the United States, against one in possession of any portion of such land, adverse to such patent, and the title whereon the same is predicated, and claiming to hold under a Mexican grant which was not surveyed or located by metes and bounds, or juridical possession under the Mexican Government, the defendant so claiming to hold adversely, as above mentioned, cannot interpose such unlocated grant as a title paramount for the land described in said patent."
7. " That the patent in evidence by plaintiffs is conclusive as against the defendant, unless there is evidence that the defendant has a title superior to the title by said patent to the land in controversy, under a confirmed Spanish or Mexican grant, located under the Mexican Government, or under the United States Government."
8. " That if the jury believe, from the evidence, that the Suisun grant and tolenas grant lie contiguous to and adjoining each other, and that there is embraced within the deseno of the Tolenas grant, and the land therein described, a quantity of land outside of the land described in the patent of the United States to Archibald A. Ritchie, greatly exceeding three leagues of land; that, in such case, the said Tolenas grant cannot be interposed and set up as a defense by defendant, without evidence of a specific location of three leagues granted to Armijo, by authority of the government of Mexico or of the United States; and showing that such last mentioned location embraces the land in controversy."
9. " The grant to Armijo does not invest him, or those claiming under him, with a title to any specific three leagues of land. If it is a grant of three leagues within a much larger area, then it is, in legal effect, a grant of land uncertain in its location, to be afterwards surveyed off to him by the government, and until such a survey on the part of the government, designating the three leagues of land granted to Armijo, he, or those claiming under him, have no right or interest which can be alleged in resistance to the right vested in Ritchie, or those claiming under him, by the patent to Ritchie, and this is true, although the land in controversy in this action is embraced within the exterior limits of the larger area, within which the three leagues granted to Armijo are to be located."
It is unnecessary to consider any other of the instructions given or refused, or points made by the appellants. The judgment must be reversed, and the cause remanded for a new trial.
Ordered accordingly.