Ferris v. Coover

         I. Two questions, of great practical importance, arise in this case:

         First --Does the grant to Sutter confer title sufficient to support the action of ejectment?

         Second --If so, does the grant cover the premises in controversy?

         The other questions are of minor importance, and will be noticed hereafter.

         1. In Leese v. Clark, (3 Cal.) and Vanderslice v. Hanks, (Id.) this Court held that a mere grant of land, by a Governor of California, while under the Mexican government, and before the approval of the Departmental Assembly, conveyed an inchoate title only, and would not support an action of ejectment.

         These decisions were founded upon the supposition that the condition, as to the approval of the Departmental Assembly, was a condition precedent, and no such approval being proved, the legal title was held to be in the United States.

         In the case of Fremont v. The United States, (17 How. 542,) the Supreme Court of the United States decided all the conditions of the grant to be subsequent. If the conditions be subsequent, then the estate became absolute in Sutter the instant the grant was made. (See 2 Blk. Com. 157.) In the case of Fremont, above cited, the Court, on page 558, say: " The words of the grant are positive and plain; they purport to convey to him a present and immediate interest." If there was a present and immediate interest conveyed, did not the right to possess and enjoy result as a necessary consequence? What present right or interest was conveyed, if a mere intruder might dispossess the grantee? What interest, less than possession and the right of possession, can be conveyed?

         This action is merely a possessory action, and many of the rules laid down by Courts, as to the kind of title which alone will support ejectment, are inapplicable to our present action for possession. It is not an action of right to determine the title. The simple question is, who has the better right to the possession, the plaintiff or defendant? If, then, the grant was only a mere license to Sutter, to take and hold possession of the land granted, it gave him the right to maintain an action for possession against all the world, except the grantor, entering after condition broken, or a party holding the legal title from the government.

         After the decision in the Fremont case, this Court changed the rule laid down in the cases of Leese v. Clark, and Vanderslice v. Hanks. In Gunn v. Bates, (6 Cal. 263,) the Court say: " The land belonged either to the United States or the claimant under the Mexican grant. If the Federal government accedes to the right of the grantee, not on the ground of a confirmation of a prior equitable interest, but on the ground that he held a perfect title, who shall gainsay it? Certainly not a mere intruder. It would appear strange, at least, when the Federal government had established a tribunal, with authority to decide these questions, that the Courtsof this State should be found arrayed against those decisions, questioning the rule by which she voluntarily abandoned her claim of title, and asserting for her rights which she had already disclaimed, through the solemn adjudication of her Courts. There can be no subserviency of opinion in this Court yielding to a decision made between the United States (to her prejudice) and one of her own subjects, where they alone are interested; and the interference of the judiciary of California, under such circumstances, would be Quixotic in the extreme."

         In Billings v. Hall, (7 Cal. 3,) this Court again refer to the Fremont case, as having changed the rule established in the cases in 3 Cal. There they say: " The decisions of this Court, prior to the decision of the Fremont case by the Supreme Court of the United States, have prevented the holders of bona fide titles from commencing suits for the recovery of their property." The title, in this last case, is the same as the title of the respondent in the present case. From these decisions, I cannot doubt that this Court will follow the decisions of the Supreme Court of the United States. While that determination remains, the title of the plaintiff must be held sufficient to maintain this action. Since the Fremont decision, the Supreme Court of the United States have gone further, and decided, in so many words, that the grant itself confers an absolute fee-simple title, the very doctrine contended for by respondent.

         In United States v. Peralta, (19 How. 348,) the Court say: " The grant by Sola," (then under consideration,) " of a portion of the tract of which Peralta had been originally put in possession, is a complete grant in fee for that portion."

         Again: in United States v. Sutherland (Id. 365,) the Court say: " The patent to the claimant's mother conferred a title in fee to an estate, known by the name of 'El Cajon,' or 'The Chest.'" This language of the highest judicial tribunal of the land leaves no room to doubt what the opinion of that Court is. It is plain and to the point. It would seem that in that Court the question is no longer doubted, or even discussed; for the quotations above contain all that is said upon the question. It is true that, in the case of Sutherland, there was the approval of the Departmental Assembly, but they give to such approval no importance, and speak of the patent(grant) which issued prior to the approval of the Assembly. No title or evidence of title issued after the approval; none seems now to be considered necessary.

         As a matter of argument not easily answered, I refer the Court to the opinion of Justice Heydenfeldt, in Vanderslice v. Hanks (3 Cal. 27).

         Conceding, however, that the legal title did not pass, still the plaintiff is entitled to recover. Some kind of title or right did pass. This is not disputed. Whatever right Sutter had, by virtue of his grant, was protected by the treaty between the United States and Mexico. Prior to the treaty, Sutter had the undisputed possession of the land granted, claiming title to the same. No one held adversely, or claimed to do so. There had been no forfeiture of this right to the possession by Sutter; no regranting of the land to another; no denouncement by a third party; no act by the grantor or grantee, during the continuance of the Mexican government, evidencing an intention on the one part to resume the possession, or on the other to abandon the same. The actual possession, then, of a part of the land, claiming under title, extended the constructive possession to the limits of the land granted, and the plaintiff must recover on his title, proved by prior possession.

         It is objected, however, that the grant contained more than eleven leagues of land, and as only eleven leagues were granted, the plaintiff cannot recover. This objection is not valid, for many reasons. There is no proof that the quantity embraced within the limits of the grant exceeds eleven leagues, and the Court will not draw any such inference, unsupported by proof. The map was before the Governor when he made the grant. It is not to be presumed he was mistaken as to quantity until that fact is proved.

         Again: there was reserved from the grant all lands inundated by the currents of the rivers. What quantity was or is so covered is not and cannot be known until an actual survey. But whether more or less than the eleven leagues was embraced within the lines named in the grant, can make no difference. The whole passed to the grantee. Such was declared to be the law in the case of Vanderslice v. Hanks (supra ). Although the judgment in that case was subsequently reversed, it was upon other grounds.

         Again: it is a rule adopted by the Land Office Department, and one by which Courtsought to be governed, to allow the grantee, after the survey, to elect which part of the land he will take, in case there is an excess. The rule goes further, and makes a sale by the grantee before the survey an election, and the government will thus compel him to act in good faith to his grantees. The premises in controversy were sold by deed of warranty, and thus Sutter elected to take those particular lots as a part of his eleven leagues.

         For these reasons, and upon these authorities, it is urged that the objection to the grant, on account of the excess in quantity of land over and above the eleven leagues, is not valid.

         2. Does the grant cover the land in controversy?

         The southern boundary named in the grant, 38 [degrees] 49' 32" north latitude, is located, as now ascertained, near the junction of the Sacramento and Feather Rivers, and, for this reason, it is insisted by appellants' counsel, that the grant cannot cover the locus in quo. If there were no other guide to determine the southern boundary, the latitude named would be conclusive. But in this, as in all such grants, a map accompanied the petition, and was made a part of the grant, by special referencethereto. The petition asks for the land in exact accordance with the map. The grant also refers to the map, and grants according to the same. The map, therefore, becomes a part of the grant, and, for description, must control the words of the grant. " When lines are laid down on a map or plan, and are referred to in the deed, the courses, distances, and other particulars appearing on said plan, are to be regarded as the true description of the land conveyed, as they would be if expressly recited in the deed." (17 Mass. 211; see, also, United States v. Sutherland, 19 How. 363.) The description in this last case is the land known as " El Cajon," and " the land of which grant is made is that which the map attached to the respective expediente expresses." There can be no other object in preparing a map, and it can serve no other purpose, than to describe the land granted. If the grant and map are to be construed together, it can easily be seen that there was a mistake in the latitude named in the grant as the southern boundary. At the extreme southern part of the map there is found a line crossing the river, and called a boundary-line (lindero ). This is the same word used in the grant, and translated boundary. It therefore seems clear that this line was intended as the southern boundary. It is marked latitude 38 [degrees] 41' 32". This map was before the Governor when he made the grant, but, by some mistake in drawing the grant, the figure 9 was inserted in the place of the figure 1, which mistake might easily occur.

         That there was a mistake is proved by the fact that no line marked on the map answers to the latitude called for in the grant. It being proved by the grant and map that there was a mistake, parol evidence can then be introduced to correct the mistake. The thing intended to be granted is the thing granted. Greenleaf, in his note to Section 301, (Greenl. Ev.) lays down the following rules in cases like the present: " 1. The highest regard is had to natural boundaries; 2. To lines actually run, and to courses actually marked, at the time of the grant; 3. To courses and distances, giving preference to one or the other, according to circumstances." " Evidence of long-continued occupation, though beyond the given distances, is admissible." (See, also, 17 Mass. 210; 9 Cranch, 178; 7 Wheat. 7; 2 Id. 306.)

         In confirming the claim of Sutter, Judge Thompson says: " The circumstances surrounding the parties at the time the grant was made, the language, both of the petition for the grant and the grant itself, show conclusively the intent and meaning of the instrument. Capt. Sutter had, some three years before, with the sanction of the Government, located himself at a place near the junction of the American and Sacramento Rivers, and had, at great expense and labor, built up an extensive settlement in that locality, which, in honor of the land of his nativity, he named New Helvetia. It was natural to suppose that he would be desirous of indemnifying himself for his trouble and expense, and of obtaining the means of remunerating the settlers whom he had induced to join him in his enterprise, by securing a title to those lands whose value had been thus enhanced by their common efforts, and on which their settlements were established. To suppose that Capt. Sutter, in soliciting, and the Governor, in granting, the land, should have intended to exclude that portion on which all his money and labor had been expended, and which was principally looked to as the reward for three years of toil, privation, and danger, in an unsettled wilderness, is an assumption so improbable, not to say absurd, so inconsistent with the terms of the grant, and the motives which usually influence human conduct, as to be utterly irreconcilable, either with the rules of evidence applicable to the subject, or the plainest dictates of reason or common sense." (See, also, McIver v. Wharton, 4 Wheat. 444.)

         By the testimony of Vioget, it is proved that, before the grant was made, Sutter employed Vioget to survey the land and make a map of it; which map, the result of the survey, accompanied the petition of Sutter. The survey commenced on the east bank of the Sacramento River, about four and a half miles below the mouth of the American River. The line surveyed as the southern line ran on the margin of two lagunas laid down on the map. The survey included two leagues of land south of the American River, including, also, the land in dispute.

         Vioget's testimony also proves a mistake in the latitude, and that the latitude named on the map was intended to be the latitude of the line marked on the map as the southern boundary before spoken of. He says that, in taking the latitude, the instrument used by him was defective, and that whatever mistake occurred in one line occurred in all.

         This statement is corroborated by the map introduced by defendants. This shows the northern boundary-line, according to the designation of latitudes named in the grant, instead of running through the Buttes, runs at least twenty miles north of them.

         It is also proved, by Vioget, that Sutter had already commenced his improvements at the Fort. Is it likely that Sutter would cause a survey to be made of lands, and petition the Governor therefor, and exclude all his improvements, his actual residence, and lands by him brought under cultivation? Here were his workshops, his tannery, his manufactories of different kinds; here his stock ranged; here was his Fort, erected to defend himself and employees from the savages.

         In addition to these facts, we find on the map the lagunas--the American River--the establishment called New Helvetia--the River Sacramento. These are natural objects whose locality is not changed; they occupy the several places designated on the map.

         A mistake in the latitude, taken in early times, with imperfect instruments, or by an unpracticed hand, is certainly not to be wondered at, when the latitude of the Fort is still unsettled. Until recently, the longitude of the coast of our State was unknown, and the loss of many vessels, including one or more belonging to the general government, was the consequence. When scientific men, sent out by the former government, made a mistake of more than half a degree in the longitude of our coast, is it surprising that Vioget should have made a mistake of some twenty miles? And when that mistake is proved, beyond controversy, will the Court confine Sutter to a line named in the grant as the southern boundary, against all the evidence introduced to prove and to establish the line? I trust not.

         The decree of the Board of U.S. Land Commissioners, and that of the U.S. District Court, establishing the boundary, though not absolute authority, are entitled to respect, and the Court is referred to those decrees.

         II. One of the defendants, Krause, offered in evidence a tax-deed, which was rejected in the Court below. This deed does not cover, as claimed by appellants, the premises in possession of defendant Coover, but only her own.

         The deed contains an extract from the assessment-book, by which it appears that the land was not assessed to the owner, occupant, or unknown owner, but to --. The sale was for taxes of 1853. It is void, because the extract shows there was no valuation of the lot by the Assessor. There was no amount of taxes extended on the line opposite the lot, as required by law.

         The other deeds, offered by defendants, were made by parties who had no title to convey, and, consequently, they could convey no right to defendants. It is contended, however, that these deeds prove that defendants had entered into possession in good faith, and made lasting improvements. For what purpose this argument is urged I know not. The decision in Billings v. Hall is not called in question.

         III. It is contended by appellants, that the Court erred in refusing to allow them to prove an abandonment of the possession of the premises. If the Court below was right in believing that plaintiff had proved title, then there could be no abandonment. When there is a bare, naked possession, without title--in other words, when the only evidence of title is possession, that possession, and the right growing out of the possession, may be abandoned; but when a title, either legal or equitable is proved, there can be no abandonment. The abandonment of the possession is not abandonment of the title, and that some kind of title passed to Sutter, by virtue of his grant, will hardly be doubted. The whole argument of appellants, upon this point, is based upon the supposition that plaintiff showed no title. The authorities cited by them are mostly upon the question of estoppel, and have no bearing, in any way, upon the question of abandonment.

         IV. It is urged that the following instruction of the Court to the jury was wrong: " If you believe, from the evidence, that the lots in controversy are embraced within the boundaries of the map introduced before you in this case, and that the map is a correct copy of the original map delivered to John A. Sutter, at the time he got his grant from the Mexican government, the plaintiff is entitled to recover. You must take the grant and map together, and if you believe the land in this suit is within the grant, as explained by the map, you will find for plaintiff."

         The map and grant are to be taken together, and, thus taken, the instruction was clearly correct.

         JUDGES: Field, J., delivered the opinion of the Court. Baldwin, J., concurring.

         OPINION

          FIELD, Judge

         On an application for an extension of time to file a petition for a rehearing, Field, J., delivered the opinion of the Court--Baldwin, J., concurring.

         This is an application for an extension of the time to file a petition for a rehearing. The application is based upon the affidavit of Mr. Weeks, that he has just been retained as counsel in the cases, and is unable to present the petition within the time prescribed by the rules of the Court. There is nothing in the reason assigned which entitles the defendants to any extension. These cases were submitted more than a year since, and elaborate written arguments were subsequently filed by the original counsel of the respective parties. They have been the subject of long and mature consideration by the Court. The questions involved in them are not new; they have been the subject of discussion with the profession for the last seven years; they have attracted the attention of the ablest jurists of the State, and been placed before the Court in every possible view, and it would be no disparagement to the learning and ability of the counsel to say that we think it highly improbable that he could throw sufficient new light upon the questions to induce us to change our deliberate judgment.

         The counsel of the plaintiffs, and one of the counsel of the defendants, have repeatedly called the attention of the Court to the cases, and invoked a decision. The cases were placed on the calendar for the present term, like all other cases previously submitted, to be argued only in the event they were not decided before they were reached, and, like a great number similarly situated, they were so decided. No oral arguments could have been more elaborate or perfect than the written arguments on file.

         Application denied.