Argument for Appellants. party in a suit for said claims under Mexican grants, because a United States patent on a Mexican grant is a quit claim deed from the government, and does not enlarge or abridge preexisting titles. United States v. Arredondo, 6 Pet. 691, 736; New Orleans v. De Armas, 9 Pet. 224; Langdeau v. Hanes, 21 Wall. 521; Nelson v. Moon, 3 McLean, 319. The appellants are not estopped by a quit claim deed under which they do not claim. Kidder v. Blaisdell, 45 Maine, 461. Under the rule in Cassidy v. Carr, 48 California, 339, and Boyles v. Hinds, 2 Sawyer, if these respondents derived their title by grant from the United States, as, for instance, under the preemption or other valid act by which the United States disposes of its lands, then the patent to Davidson would estop these appellants for the sole reason that appellants would have litigated their rights in a proceeding to which respondents' grantor was a party, and the decree in that case would be an estoppel on both parties to this suit. The case at bar presents no such facts. The United States is not respondents' grantor, nor is it appellants' grantor. It never had the title to the land described in either patent. If so, both patents are void, for under the act of 1851 the United States could issue patents only on lands the right to which came from Mexico to claim ants. The land in dispute is embraced in the De Poli patent, that patent issued in a proceeding to which appellants (and their grantors) were not parties. By that patent the United States. declared that it had no title or rights to the land therein described and that, as against the United States, De Poli had derived title from Mexico. By its patent to Davidson the United States did not undertake to do more than segregate Davidson's land from the public domain. It had no power to establish lines which would determine the rights of private parties inter sese, because those private parties were not parties in the proceedings under which such patents issued. The land in dispute here never was public domain. It either belonged to De Poli or Jimeno at the time of the cession to the United States, and nothing the United States has since done, or can now do, Argument for Appellants. should estop those who have succeeded to De Poli or Jimeno from showing to whom it did then belong. "In such a case the United States has no interest." United States v. White, 23 How. 249. As was said in Bissell v. Henshaw, 1 Sawyer, 553, 583: As if aware of the confusion which must follow such proceedings, the act of 1851 provides expressly that neither the final decree of the Board of Commissioners, or of the District, or the Supreme Court, or any patent to be issued under that act, shall be conclusive against any one but the claimants and the United States. Rodrigues v. United States, 1 Wall. 582, 588." If there were a contest between the United States and either of these patentees, or a grantee of the United States and either of the patentees, the patent would clearly be conclusive. But how can such a rule apply when both parties claim the land under a title paramount to the United States? The land in question does not belong to the United States. It is the property of either appellants or respondents. The title came from Mexico to its present owners not from the United States. The determination of the suit will depend upon the question: To whom did Mexico convey? If Mexico conveyed the property to appellants, the United States cannot convey it to respondents; and, on the other hand, if she conveyed it to respondents, the United States cannot convey it to appellants. The United States has, by its Executive Department, segregated it from the public domain, and it now remains for the Judicial Department of the government, as the last duty of the government under the treaty, to determine to whom Mexico did convey, and to then protect the Mexican grantee in his property. III. But if the Pico sale, upon which the De Poli patent issued, is valid, and the juridical survey of November, 1847, is void, the respondents are estopped from now objecting to the lines then established and agreed upon by Anguisola, in charge of the Mission. The recital in the juridical survey, that the neighboring owners were present and consented to that survey and the Opinion of the Court. lines then established, and that Anguisola was then in charge of the Mission lands, and was present and satisfied with said lines, is presumptively true. California Code of Civil Procedure, § 1963, Subd. 15; Stinson v. Hawkins, 13 Fed. Rep. 833. Respondents are estopped by their assent from denying the division line between themselves and defendants. Stowe v. United States, 19 Wall. 13. The line established by agreement controls as between the parties or their privies: Bronson's Executor v. Chappell, 12 Wall. 681; Spring v. Hewston, 52 California, 442; Carpentier v. Thurston, 24 California, 281; Alviso v. United States, 8 Wall. 337; Higueras v. United States, 5 Wall. 824; Fossatt's Case, 2 Wall. 649, 715. "Acquiescence in error takes away the right of objecting to it." California Civil Code, § 3516. Mr. E. S. Pillsbury for appellees. MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court. The question presented for determination in this case relates to the effect of proceedings taken under the act of March 3, 1851, to ascertain and settle private land claims in California, upon the claims of parties holding concessions of lands in that State under the Spanish or the Mexican government. By the cession of California to the United States, the rights of the inhabitants to their property were not affected. They remained as before. Political jurisdiction and sovereignty over the territory and public property alone passed to the United States. United States v. Percheman, 7 Pet. 51, 87. Previous to the cession numerous grants of land in California had been made by the Spanish and Mexican governments to private parties. Some of these were of tracts with defined boundaries; some were for specific quantities of land to be selected from areas containing a much larger quantity; and others were of lands known only by particular names, without any designated boundaries. To ascertain what rights had thus passed, and to Opinion of the Court. carry out the obligation which the government of the United States had assumed to protect all rights of property of those who remained citizens of the country, Congress passed the act of March 3, 1851. By it a board of commissioners was created, to which all persons claiming land by virtue of any right or title derived from the Mexican or Spanish governments could present their claims and have them examined and their validity determined; and the claimants could appear by counsel and produce documentary evidence and witnesses in support of their claims. The act required all persons thus claiming lands in California to present their claims to the board within two years from its date, and declared in substance, that if, upon examination, they were found by the board, and by the courts of the United States to which an appeal was allowed, to be valid, the claims should be confirmed and surveyed, and patents issued therefor to the claimants. But the act also declared that all lands the claims to which were not presented to the board within that period, should be considered as part of the public domain of the United States. In Beard v. Federy, 3 Wall. 478, 490, this court, whilst stating that it was unnecessary to express any opinion as to the validity of the legislation in respect to perfect titles acquired under the former government, held that it was not subject to any constitutional objection, so far as it applied to grants of an imperfect character, which required further action of the political department to render them perfect. The grant to Manuel Jimeno, under which the defendants claim, was one of an imperfect character. Upon the cession of the country there remained a further proceeding to be had with respect to that grant before an indefeasible title could vest in the grantee. A formal transfer of the property to the grantee by officers of the government was necessary. The proceeding was termed a judicial delivery of possession. Until it was had the grant was an imperfect one. As preliminary to, or as a part of the official delivery, the boundaries of the land were to be established, after summoning the neighboring proprietors as witnesses to the proceeding. Malarin v. United States, 1 Wall. 282, 289. No such official delivery of possession was had under the former government Opinion of the Court. to the grantee, Jimeno, though the grant to him contains these conditions: "He shall petition the proper judge to be put in judicial possession by him in virtue of this document, by whom the boundaries shall be marked out, on the limits of which he shall place the proper land marks. The land now granted is of the extent of four square leagues, more or less, as shown by the map which accompanies the espediente. The judge who shall give him possession shall have it measured in conformity with the evidence, the surplus that results remaining in the nation for its proper use." The authority and jurisdiction of Mexican officials terminated on the 7th of July, 1846. On that day the forces of the United States took possession of Monterey, the capital of California, and soon afterwards occupied the principal portions of the country, and the military occupation continued until after the treaty of peace. The political department of the government designated that day as the period when the conquest of California was complete and the authority of the officials of Mexico ceased. In this matter the judiciary follows the political department. United States v. Yorba, 1 Wall. 412, 423; United States v. Pico, 23 How. 321, 326; Hornsby v. United States, 10 Wall. 224, 239. After that date no alcaldes elected by the citizens had any jurisdiction to deliver judicial possession. This was distinctly held in the case of Fremont v. United States, 17 How. 542, 563. In answer to the objection there taken that there was no survey or judicial possession of the land granted to Alvarado, under whom Fremont claimed, the court said: "The alcalde had no right to survey the land or deliver judicial possession, except by the permission of the American authorities. He could do nothing that would in any degree affect the rights of the United States to the public property; and the United States could not justly claim the forfeiture of the land for a breach of these conditions, without showing that there were officers in California, under the military government, who were authorized by a law of Congress to make this survey, and deliver judicial possession to the grantee. It is certain that no such authority existed after the overthrow of the Mexican government." |