(189

[190]

tion to those of my brethren, upon the propo sitions of law advanced by the court below. Those propositions, if maintained, would, in my judgment, unsettle titles he d under pat ents issued upon such confirmed grants, and lead to great litigation in the State to the serious detriment of its interests and these of its people.

The action is ejectment for the possession of certain premises within the limits of the city and county of San Francisco, and also within the boundaries of the tract of land confirmed to the city, as successor of a Mexican pueblo, as they are described in the official survey of the tract made under the direction and authority of the Land Department, and carried into the patent of the United States.

serted is valid and entitled to recognition, | venture to make some observations, in addi-
the government acts, and issues its patent to
the claimant. This instrument is, therefore,
record evidence of the action of the govern-
ment upon the title of the claimant. By it
the government declares that the claim as
serted was valid under the laws of Mexico;
that it was entitled to recognition and pro-
tection by the stipulations of the Treaty, and
might have been located under the former
government, and is correctly located now,
so as to embrace the premises as they are
surveyed and described. As against the gov-
ernment, this record, so long as it remains
unvacated, is conclusive. And it is equally
conclusive against parties claiming under the
government by title subsequent. It is in
this effect of the patent as a record of the
government that its security and protection
chiefly lie. If parties asserting interests in The tract confirmed is designated in the
lands acquired since the acquisition of the decree of confirmation rendered by the cir-
country could deny and controvert this rec-cuit court of the United States on the 18th
ord, and compel the patentee, in every suit
for his land, to establish the validity of his
claim, his right to its confirmation, and the
correctness of the action of the tribunals and
officers of the United States in the location
of the same, the patent would fail to be, as
it was intended it should be, an instrument
of quiet and security to its possessor. The
patentee would find his title recognized in
one suit and rejected in another, and if his
title were maintained, he would find his land
located in as many different places as the
varying prejudices, interests or notions of
justice of witnesses and jurymen might sug.
gest. Every fact upon which the decree and
patent rests would be open to contestation.
The intruder, resting solely upon his posses-
sion, might insist that the original claim
was invalid, or was not properly located, and,
therefore, he could not be disturbed by the
patentee. No construction which will lead
to such results can be given to the fifteenth
section (meaning the fifteenth section of the
Act of 1851, for the purpose of ascertaining
and settling private land claims in Califor-
nia). The term 'third persons,' as there used,
does not embrace all persons other than the
United States and the claimants, but only
those who hold superior title, such as will
enable them to resist successfully any action
of the government in disposing of the prop-
erty."

Judgment reversed and cause remanded with directions for further proceedings in conformity with this opinion. The Chief Justice, Mr. Justice Bradley and Mr. Justice Gray did not hear the argument or participate in the decision of this case.

Mr. Justice Field concurring:

I concur in the judgment of this court and in the views expressed in its opinion. As a correct solution of the questions involved is of vital importance to the security of titles claimed under confirmed Mexican grants in California, followed by a survey made and a patent issued under the Land Department of the government, and as I have had personal knowledge of all legal proceedings touching the claim of the pueblo of San Francisco from their commencement, I will

of May, 1865, as "a tract situated within the
county of San Francisco, and embracing so
much of the extreme upper portion of the
peninsula, above ordinary high-water mark,
(as the same existed at the date of the ac-
quisition of the country, namely, the sev
enth day of July, A. D. 1846,) on which the
city of San Francisco is situated as will
contain an area of four square leagues; said
tract being bounded on the north and east by
the bay of San Francisco; on the west by the
Pacific Ocean, and on the south by a due east
and west line drawn so as to include the area
aforesaid," subject to certain deductions not
material to be mentioned here. The decree
declares that the "confirmation is in trust
for the benefit of the lot holders under grants
from the pueblo, town, or city of San Fran
cisco, or other competent authority, and as
to any residue, in trust for the use and bene-
fit of the inhabitants of the city."

A survey and plat purporting to be of the
tract were made by one Stratton, a deputy of
the surveyor-general of the United States
for California, and was approved by the lat
ter officer in August, 1868. The survey, in-
stead of following from its commencement
on the east side of the tract to its termina-
tion the line of ordinary high-water mark
of the bay of San Francisco, as it existed [191]
on the seventh of July, 1846, followed such
line only a part of the way. Of its depart-
ures from that line, it is sufficient to men.
tion that, when the survey reached the mouth
of the estuary or stream entering the bay,
known as Mission Creek, it left the shore of
the bay and ran up along the bank of the
creek on its right side from its entrance for
a distance of over a mile, then crossing the
creek passed down on the other side to the
bay, extending back from the creek on each
side so as to exclude from the survey a large
tract of what was called marsh land.

To the approval of the survey and plat the city and county of San Francisco filed their protest and objections. The military officer of the United States in command of the Department of California also filed objections to so much of the survey as related to the military reservation within the limits of the tract.

Surveyor-general Day succeeded the officer | test were above high-water mark in 1846,
who had approved the survey, and he for- they ought to be included in the survey, and
warded the protest and objections to the com- then the southern boundary line would'
missioner of the general land office, accom- have to be moved further north, excluding a
panied by his opinion that the objections corresponding quantity which would fall
were well taken in several particulars, and into the public lands of the United States.
recommended among other things that the No stipulation or agreement, therefore, said
plat and survey should be amended so as to the Secretary, between the State and the city
include the marsh land lying on Mission and county could estop or relieve the officers
Creek within the four square leagues, and of the department from the duty of executing
by the resurvey of the southern and eastern the decree or of protecting the interests of
boundary of the military reservation. The the government, adding, that if the city and
commissioner, however, disregarded the ob- county should ask to withdraw the protest
jections and approved the survey, founding or to have the same dismissed the govern-
his conclusion upon the alleged long acquies- ment would still have the right to make use
cence of the city and county of San Fran- of the objections, and of the evidence filed
cisco, from which he inferred a recognition in their support for its own protection as
of its correctness and a waiver of the protest well as for properly surveying the claim in
and objections.
accordance with the decree. He therefore
discarded entirely the ground which the
Commissioner had advanced as the principal
reason for approving the survey.

The confirmation was, as already stated,
"in trust for the benefit of the lot-holders
under grants from the pueblo, town or city
of San Francisco, or other competent author- The protest and objections of the city and
ity, and as to any residue, in trust for the county referred to tracts of marsh land lying
use and benefit of the inhabitants of the near and south of Mission Creek. They al
city." The legislation of Congress releas-leged that such lands were not overflowed by
ing the interest of the United States to the tide water, except at the spring tides; that
city was also in trust for the beneficiaries the line of ordinary high-water mark upon
named (14 Stat. at L. 4); so that the city of them on the side of the bay was sharply
San Francisco had no interest in the lands defined by a growth of samphire, a marine
within the confirmed tract other than as a reedy plant which grows down to such line
trustee, except where parcels had been ac- and no further. The testimony before the
quired by purchase or conveyance from other Secretary showed that the line thus defined
Sources than the pueblo. All pueblo lands she was traced with a blue pencil on the engraved
beld simply in that character. It was incum- map of the coast survey, made by officers of
bent upon her, therefore, to take such steps as the United States between 1850 and 1857,
were necessary to secure and perfect the title and that the marsh lands, including the
of her cestuis que trust. She accordingly premises in controversy, were above the line
retained counsel to protect their interests as thus designated. Testimony of old residents
well as her own, and he made a formal of San Francisco, some of whom had resided
appeal for the benefit of both to the Secretary there as early as 1842 and others in 1849, and
of the Interior from the decision of the com- down to a period long after 1851, and were
missioner.
familiar with the character of the land front-
Certain lot-holders were also permitted to ing on the bay, corroborated from their per-
appear before the Secretary and argue the sonal knowledge the evidence of this map,
se, as parties interested in the title. An as to the marsh lands excluded from the sur-
appeal was also taken by the military com- vey being above the ordinary line of high-
mander of the department, on behalf of the water mark of the bay.
United States, to correct alleged errors in It also appeared before the Secretary, that
the survey of the military reservation, which by an Act of the Legislature of California,
kept the whole survey open before the Secre- passed March 26, 1851, the State had granted
tary until it was finally determined. Any to the city of San Francisco the use and
change, either by the enlargement or dimi- occupation for ninety-nine years of certain
nution of the reservation, necessarily affected
other lines of the survey, reducing or extend-
ing them as the quantity embraced within
the tract surveyed was increased or dimin-
ished.

Mr. Schurz was then at the head of the Interior Department, and he examined at great length the action of the commissioner and of the surveyor-general upon the survey; received a large amount of testimony upon the objections presented, and heard arguments of counsel thereon. And he held that the treatment of the survey by the commissioner proceded on the assumption that the United States had no interest in the matter, and that if the State and city were satisfied, the duty of the department was to approve the survey. This the Secretary held to be a grave error, observing that if the excluded tracts which the city claimed under the pro

lands designated as Beach and Water lots;
and that in describing those lands it had
made one of their boundaries the natural
high-water mark of the bay, the line of such
high-water mark extending to its point of
intersection with the southern boundary of
the city. The Act provided that, within
thirty days after its passage, the city of San
Francisco should deposit in the offices of the
secretary of state and of the surveyor gen-
eral, and in the office of the surveyor of the
city of San Francisco, "a correct map of said
boundary line, distinctly and properly de-
lineated by a red line."

Such maps were made and deposited as
required, and from that time afterwards they
were referred to by all parties in the city as
determining the true line of ordinary high-
water mark as it had previously existed. A
copy of one of them was before the secretary.

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[194]

[195]

They represented, as he held, the line of
ordinary high-water mark which had been
established, sanctioned and recognized in the
most solemn manner by the State and city
for years, and was the best available evidence
of ordinary high-water mark of 1846 around
that portion of the city. That line, as traced
on the maps, crossed the mouth of Mission
Creek and the mouths of all other creeks
which in 1851 emptied into the bay of San
Francisco. He, therefore, ordered the Com-
missioner to direct the surveyor-general to
secure a correct and authentic copy of the
map, designating the line of natural high-
water mark, in accordance with the Act of
1851, and make it the basis of a survey of so
much of the exterior boundary of the claim
as it represented, and to modify the Stratton
survey in accordance therewith.

of his predecessor, and overruled the appli cation for its review.

After much difficulty with the surveying officers a survey was made pursuant to the directions given and was approved by the then commissioner of the general land office, and upon that survey a patent was issued to the city of San Francisco, bearing date the 20th day of June, 1884. This patent was forwarded to the mayor of San Francisco, and was accepted on behalf of the city and county.

When Mr. Lamar succeeded Mr. Teller as the head of the Interior Department, application was made to him to recall the patent and issue a new one in accordance with the Stratton survey. In support of the applica tion it was strenuously contended, by the same parties who had resisted the action of Subsequently, after Mr. Schurz had ceased his predecessors, that there was a want of to be the head of the Interior Department jurisdiction on their part to review the decis and Mr. Teller had become Secretary, ap-ion of the commissioner of the land office. plication was made to the latter officer to Such contention was urged upon the supreview the decision of the former, and upon posed meaning of the statute, and on the such application argument of counsel was ground that the supervisors of the city and heard and a most extended consideration of county of San Francisco had by resolution [196] the whole matter was had. Secretary Teller directed that no appeal should be taken from observed that all the material questions re- his decision, and, when it was taken by lating to the boundaries of the tract confirmed counsel retained for the protection of the inwere settled, except the single inquiry terests of the lot-holders as well as of the whether or not, in running the line of ordi- city, had declared that his action was unaunary high-water mark of the ocean, and thorized. especially of the bay, the main shore or The Secretary, in considering the objectcourse line of such body of water identified ions, referred to the fact that the supervisors, by its larger description should be followed, subsequently to those resolutions, had recutting across the mouths of streams, estua-quested him, before whom they admitted the ries and creeks which, intersecting the body case was then pending relating to the boundof the peninsula, find their entrance into the aries of the military reservation, to take up ocean or bay, or whether such estuaries as and decide the case without further delay. fall below high tide should be segregated And after a careful review of the question by following up the tide line on one side of jurisdiction, and the proceedings prelimi and down on the other so as to make them nary to the issue of the patent, he refused to as it were a part of the sea. He said that recall the patent, holding that an order by his predecessor had decided that the former him to that effect would be illegal and void, was intended by the decree and expressed its and that the matter presented for his considtrue construction, and, after mature delibera-eration in the past proceedings of the case tion, he adhered to the same view.

sea.

"When we look," said the Secretary, "at the calls for boundary there is no ambiguity, no doubtful phraseology. Said tract being bounded on the north and east by the bay of San Francisco; on the west by the Pacific Ocean. The tract bounds upon the bay and ocean, not upon estuaries, creeks, and streams intersecting such tract, even though they be navigable and technically termed arms of the The boundary, he added, was not the stream, but the bay; consequently the ordinary high-water mark must be the highwater mark of the shore as pertaining to the sea, and not the high-water mark of the bank as pertaining to a river or stream; so although Mission Creek was alleged to have been as well a tidal inflow as an outlet for the inland waters, it nevertheless fell within banks instead of resting upon shores, and must be considered an inland water for all purposes. He added that it was plain that the highwater mark extended to the shore of the bay, leaving out any reference whatever to the inland channels of the streams intersecting the granted peninsula. He accordingly directed a substantial adhesion to the decision

did not justify any recommendation to the legal department of the government to institute proceedings to recall, or modify, or in any manner interfere with the patent.

I have stated with as much brevity as possible the steps taken for the confirmation of the title of the city as successor of the Mexican pueblo, which are set forth more în detail in the opinions of the different Secreta. ries of the Interior laid before us on the hearing, for the statement is important to a clear perception of the character and import of the rulings of the referee and of the court below. An extended narrative of the proceedings would occupy a much greater space and would show that parties claiming an interest in the lands left out of the Stratton survey, and resisting the approval of the official survey subsequently made, had also applied to the Supreme Court of the District of Columbia and to Congress for aid to carry out their pretensions, and were met by the declaration that to obtain a remedy for any errors alleged, resort should have been had to the Secretary of the Interior as the only revisory authority over the action of the inferior officers of the Land Department. It

would also show that in obtaining a recogni- | location and had made surveys in their neightion of its claim, the city had met from them borhood in that year, and that they were at every step the most strenuous opposition, then below the line of ordinary high-water and that every possible objection taken to mark. He did not add "of the bay;" but 197) the claim and survey since, was then pre- as the premises were where the water of the sented and fully considered by the different creek formerly ran, and where, for aught Secretaries of the Interior; so that with truth that appears in evidence, it may now run, was it said in the recent decision of this it was to the high-water mark of that creek court in San Francisco v. Le Roy, 138 U. S. to which he had reference. 656, 672 [34: 1096, 1101] that the boundaries of the pueblo were established by the United States after the most thorough and exhaustive examination ever given to the consideration of the boundaries of a claim of a pueblo under the Mexican government. The parties who carried on the long and protracted contest in the land department. against the confirmation of the claim and its survey as finally approved, asserted the acquisition of an interest in those premises under certain deeds of the tide-land commissioners, created by the Legislature of California.

[198]

On March 30, 1868, that Legislature passed an Act to survey and dispose of certain salt marsh and tide lands belonging to the State. It empowered the governor to appoint three persons, who were to constitute a board of tide-land commissioners, and authorized them to take possession of all the marsh and tide lands, and lands lying under water, situate along the bay of San Francisco and in the city and county of San Francisco, belonging to the State; to have the same surveyed and maps of the property prepared; to sell the interest of the State therein, and to execute conveyances to the purchasers. (Laws of Cal. 1867-68, chap. 543.)

At that time one George W. Ellis had settled upon lands excluded from the Stratton survey, and after its passage he applied to the board of tide-land commissioners and obtained from it two deeds, dated in November, 1875, covering the premises. His grantees carried on the contest, but not in their own names, against the location and survey of the tract confirmed before the Interior De partment, and in every possible way sought to defeat its action and secure such a survey as would leave the lands claimed by them without the limits of the pueblo. The interest which the plaintiffs below, the United Land Association, and Clinton C. Tripp, had or claimed in the premises covered by the patent to the city of San Francisco, was founded upon these conveyances of the tideland commissioners. Relying upon a title from that source the present action was brought.

As stated above, it is an action of ejectment for the possession of premises within the limits of the pueblo survey and covered by the patent to the city .of San Francisco. After issue was joined it was by consent of parties referred to a referee.

The plaintiffs claimed title to the premises in controversy under the deeds mentioned. The defendant relied upon the fact that the premises were within the boundaries of the tract patented. They were situated in what constituted in 1854 the channel of Mission Creek, above its mouth. A witness produced by the plaintiffs testified that he knew their

The plaintiffs also gave in evidence the final decree of confirmation of the claim of the city of San Francisco rendered by the circuit court of the United States, and the Stratton survey, mentioned above, with the certificate of approval of the surveyor-general and the confirmation thereof by the commissioner of the general land office. Objection was made to the introduction of this survey on the ground that it was not competent evidence, not being matter of record; and that it had been canceled and superseded by another survey made in accordance with instructions of the Secretary of the Interior. The referee overruled the objections under the exception of the defendant, admitted the rejected survey, and, among other things, held that in approving that survey the commissioner was acting in a judicial capacity, and that his judgment thereon was not reversible and was not legally reversed.

The defendant, to show that no title ever vested in the plaintiffs under their alleged deeds from the tide-land commissioners, gave in evidence the patent of the United States issued to the city of San Francisco, dated the 20th of June, 1884; also the plat of the pueblo lands finally confirmed to the city under instructions of the United States surveyor-general, ordered by the Secretary of the Interior and approved by the commissioner of the general land office, upon which the patent issued.

It was conceded that the patent included within its boundaries the premises in question. The referee admitted the evidence thus offered of the patent and survey, with the concession that they included the demanded premises, but refused to find for the defendant thereon, and the defendant excepted.

The decree of confirmation, as seen above, bounds the tract confirmed on the north and east side by ordinary high-water mark of the bay of San Francisco. The Stratton survey and the proofs before the referee did not show that the premises in controversy were below that water mark of the bay, but only that they were below that water mark at a point in the channel of Mission Creek, and yet the referee held that the Stratton survey and the parol proofs in the case showed that the premises were outside of the specific boundary of the decree, and therefore remained the property of the State. He accordingly gave judgment for the plaintiffs.

His rulings on the trial exhibited several errors. He gave no effect to the general rule that in actions of ejectment a patent of the United States, issued upon a confirmation of a land claim to which protection had been guaranteed by treaty, cannot be collaterally assailed for mere error alleged in the action of the officers of the government. He admitted in evidence, against the objections of

[199]

[200]

[201]

the defendant, the rejected survey of Stratton, are included, legal or equitable, perfect or
in contravention of the principle that a reject-imperfect. "It comprehends," as said by this
ed survey of officers of the land department is court in Soulard v. United States, 37 U. S.
in law no survey, and inoperative for any 1 Pet. 100 [9: 361], "every species of title,
purpose. It has so been held in numerous inchoate or complete. It is supposed to em-
instances and never to the contrary. In the brace those rights which are executory, as
particulars in which the Stratton survey was well as those which are executed. In this
modified by direction of Secretaries Schurz respect the relation of the inhabitants to their
and Teller, it was of no more efficacy as a government is not changed. The new gov.
legal document than so much waste paper. ernment takes the place of that which has
He apparently perceived that there was passed away.'
something bizarre in receiving as evidence
a rejected survey, or a modified survey, ex-
cept in the particulars in which the modifi-
cation was had, and sought to avoid this
position by holding that the action of the
commissioner in approving the survey was
beyond the reach of the Interior Department,
and that it was not, therefore, legally re-
versed; thus brushing aside the important
functions of that department over the surveys
of private land claims, which it has exer-
cised since its organization, and which has
been always recognized by the courts of the
United States. Cragin v. Powell, 128 U. S.
691, 697 [32: 566, 568]. In answer to his
erroneous conclusions in this respect, nothing
can be added to the force of the statement
in the opinion of the majority.

By the Treaty of Guadaloupe Hidalgo, the United States also stipulated for such protection, and that implied that rights of property, perfect or imperfect, held by the inhabitants previous to the acquisition of the country should be secured to them, so far as such property was recognized by the laws and constitution of the new government; and for that purpose that the holders should receive from the new authorities such official and documentary evidence of their rights as would assure their full possession and enjoyment. Pueblos in that respect stood in the same position as private individuals. All their rights of property, legal or equitable, were alike entitled to protection. Whatever property was ceded to the United States from Mexico, whether marsh lands or tide lands, passed subject to the obligation to protect existing claims to them of all parties. The State could take no greater interest than the United States acquired; all lands she received went under her control charged with the equitable claims of others, which the United States were bound by the

There were several hundred claims to lands
in California, under Mexican grants, pre-
sented for confirmation to the board of land
commissioners created by the Act of 1851.
They embraced many millions of acres of
land, and in a large number, probably the
majority of cases, where the claim was con-
firmed, the surveys thereof by the surveyor-treaty and the law of nations to protect. The
general for the State, after being considered
and approved or rejected by the commissioner
of the general land office, passed under the
supervision of and were in some respects
modified by the Secretary of the Interior as
the head of the land department of the
United States. If the position taken by
the referee, that the action on the survey of
such claims by the commissioner was final,
could be sustained, every patent issued upon
a survey of a claim which had been in any
respect modified or changed by direction of
the Secretary of the Interior would be open
to attack, to the frightful unsettlement of
titles in the State and to the infinite disturb-
ance of the peace of its people.

marsh lands granted to her by the Act of
Congress of September 28, 1850, were thus
affected. And the same was true of the tide
lands. Whatever lands of that nature passed
to the United States were held for the future
State, subject, however, to any trust from the
former government which might require their
disposition in some other way. The duty
and power of the United States in the exe-
cution of their treaty obligations to protect
the property claims of all persons, natural
or artificial, were superior to any subse-
quently acquired interest of the State or in-
dividuals. Mexico owned the tide lands as
well as the uplands, and it was, of course,
in her power to make such disposition of
them in the establishment and organization
of her pueblos as she may have judged ex-
pedient. And whether she did make such
disposition by her laws was a matter exclu-
sively for the United States to ascertain and
determine. As said by the Supreme Court
of California in Ward v. Mulford, 32 Cal.
372: "In private proprietorship and in
sovereign right the United States succeeded
the Mexican government, and in both these
respects California, so far as she acquired
any right in either, succeeded the United
States and became privy to the latter in es-
tate in respect to all lands within her bor-
ders, whether such as may be held in private
or sovereign right. In this respect no dis-
tinction can be made between the lands ac-
quired by her through federal grants and
such as she took by virtue of her sover-

When the patent to the city was brought
before the referee, and it was conceded that
the land in controversy was included within
the boundaries embraced by the survey em-
bodied in it, judgment should have been
rendered for the defendant. The title under
the patent necessarily antedated any possible
claim of the State of California to the lands
within the limits of the pueblo. It went
back to the acquisition of the country from
Mexico. When the United States acquired
California the inhabitants were entitled by
the law of nations to protection from the
new government in all rights of property
then possessed by them. Jurisdiction and
Sovereignty passed from one nation to the
other by the cession, but not private rights
of property; their ownership remained as
under the former government. And by the
term "property," as applied to land, all titles | eignty."

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