veyor-General for California and that, finally, | limitations commenced running, then, from

a patent was issued by the United States for the land confirmed by the commissioners on the 14th of October, 1857; and that this patent was recorded shortly after in Butte county, where the land was located, in accordance with the statute of California. Under the statutes of limitations of 1850 and 1855, the plaintiffs in error acquired title by their possession in the year 1856. Under the act of April 11, 1855, alone, however, without counting the time which had already passed under the act of 1850, their title was complete and perfect on and after Apr. 11, 1860. From this time this law was their title against all the world, upon satisfactory proof of possession. And upon this they might rest with security. They then acquired a right of property which no subsequent act of legislation could devest or take away without just compensation previously made. Const. of Cal. art. 1, § 1; Billings v. Hall, 7 Cal. 1.

the time of the final approval of the survey, and not from the time of the issuance of the patent. Mahoney v. Van Winkle, 33 Cal. 448. Messrs. Montgomery Blair and F. A. Dick, for defendant in error:

1. Limitations: Gibson v. Chouteau, 13 Wall. pp. 110, 102, 104, 20 L. ed. 537, 538.

2. Estoppel: acts of Mar. 3, 1851 (9 Stat. at L. 631); June 14, 1860 (12 Stat. at L. 33); Brief of plaintiff in error, pp. 35, 44.

Claimant cannot set off his own land. Waterman v. Smith, 13 Cal. 416: agreement of parties superseded by official survey, p. 417; possession of confirmee necessarily provisional. 3. First patent not conclusive. Saving in patent under 15th section, act 1851, p. 22.

Berthold v. McDonald, 24 Mo. 126, 22: How. 334, 16 L. ed. 318; Magwire v. Tyler, 8: Wall. 668, 19 L. ed. 420; Ballance v. Forsyth, 13 How. 18; Teschemacher v. Thompson, 18 Cal. 26.

"Duty of government to make survey, etc., which, attached, at session, could not be interfered with by matter subsequent."

Confirmation, ex vi termini, operates on original title and gives effect to it from date. All the cases recognize this general principle.

LeDoux v. Black, 18 How. 473, 15 L. ed. 457; Cousin v. Labatut, supra; Chouteau v. Eckhart, 2 How. 375; Les Bois v. Bramell, 4 How. 449; Mackay v. Dillon, How. 421; Menard v. Massey, 8 How. 293; Bissell v. Penrose, 8 How. 317; Mills v. Stoddard, 8 How. 345, etc.

Mr. Justice Field delivered the opinion of the court:

Plaintiffs in error might, then, with confidence, rest upon their possession of five years, and claim that the statute of limitations commenced running in their favor on the day of the final confirmation of their claim by the final dismissal of the appeal of Mar. 9, 1857. On Mar. 9, 1862, the law completed their title and made it perfect for them, for then they had been in possession under title for five years after their claim had been finally confirmed by the United States. May 29, 1862, however, they had been in possession under a final confirmation and a final survey for five years. The last and final act of the government of the United States, in relation to their claims, was the issuance to them of a patent in Oct., 1857. The This is an action of ejectment for the possesfive years from the date of final survey confers sion of certain real property situated in the title absolute, and also bars the remedy of de- county of Butte, in the state of California. fendant in error and extinguishes his paper title. Both parties claim the demanded premises unCannon v. Stockmon, 36 Cal. 535; Arrington der patents of the United States, issued upon a v. Liscom, 34 Cal. 366; Civ. Code, La., arts. confirmation of grants made by the Mexican 3420, 3437, 3442, 3447, 3448; 1 Poth. Obl. 403. government. The plaintiff claims under the This survey of the claim of plaintiff's in error, junior patent issued upon the earlier grant; finally approved May 29, 1857, by the United the defendants claim under the senior patent States Surveyor General for California, was issued upon the later grant. Both patents cover "the judgment of the appropriate department the premises in controversy, one square league of the government of the United States, and is of land, and the main question in the case, as conclusive upon the courts in actions of eject-in all cases where patents founded upon previment, as the adjudication of a competent tribunal upon a subject within its exclusive jurisdiction. And its determination or judgment is not the subject of review by the judiciary."

Moore v. Wilkinson, 13 Čal. 478.

The case last cited involved the rights of the plaintiffs in error in the present suit, under their finally confirmed grant and survey. This is one of the leading cases in California, in which the law governing the rights of claimants under Spanish and Mexican grants is justly, fully, and ably expounded. And the rulings and views therein have been substantially adopted by the United States Supreme Court, in later cases. U. S. v. Sepulveda, 1 Wall. 104, 17 L. ed. 569, overruling its former decisions in the case of The U. S. v. Fossatt, 21 How. 445, 16 L. ed. 186, and Castro v. Hendricks, 23 How. 438, 16 L. ed. 576.

The supreme court of California has decided (overruling Johnson v. Van Dyke, 20 Cal. 225) that a final survey of a grant completes title without issuance of patent. The statute of

ously existing concessions overlap, is which of the two original concessions carried the better right to the premises.

The question, as here presented, arising upon conflicting patents issued upon con- [*262 firmed Mexican grants, has not been, heretofore, before this court for consideration, but the principles which must govern its determination are neither new nor difficult.

The grant to Flugge, upon the confirmation of which the patent was issued, from which the plaintiff deraigns his title, was made by the governor of California in February, 1844, and was approved by the departmental assembly in June, 1845. It in terms ceded to the grantee, subject to such approval and other conditions, five square leagues of land situated on the westerly side of Feather river, as represented on a map which accompanied the petition of the grantee, and designated as the first boundary of the tract a certain degree of north latitude. This designation afterwards proved to be erroneous, but the line intended was susceptible of

nated should be selected on Feather river, at the base or along the side of the mountains, the precise line of which was to be deter- [*264 mined by the magistrate delivering possession to the grantees. As a grant of quantity it re quired, under the Mexican laws, such delivery of possession to attach it to any particular tract, called, in the language of the country, juridical possession, and that proceeding was never had. But it is immaterial for the disposition of the present case whether the grant to the Fernandez be treated as one of specific boundaries, or of quantity; it could not interfere with and displace a prior grant of defined boundaries.

being accurately traced by measurement from the junction of Feather and Sacramento rivers, which was marked on the same map by a degree of latitude containing a similar error. The map represented a tract stated in the petition, and the statement was accepted and acted upon by the governor as correct, to be one league in breadth, and indicated natural objects of such marked character as to make the identification of the land a matter perfectly easy to any surveyor. Feather river, which constitutes the eastern boundary, with its meanderings, is traced; the position of Honcut creek entering the river is given, and the point on the river where the erroneously designated line of latitude crosses, constituting the commencement On the argument great stress was placed by of the boundary, is plainly shown by the bend counsel upon the fact that the claim under the of the river. With the breadth of the tract Fernandez grant, though later in date, was first stated, the quantity limited, the southern and surveyed and patented. But this fact is not a eastern lines designated, all the elements are matter of any weight in this case. Both parties given essential to the complete identification holding under patents have a standing in a of the land. A grant of land thus identified, court of law, and the court is thus compelled or having such descriptive features as to ren- to look beyond the patents, to the original der its identification a matter of absolute cer- source of title, and to the character of that title tainty, entitled the grantee to the specific tract as it existed under the former government. named. His title, it is true, was imperfect in The protection which by the treaty the United its character, and subject to various conditions, States promised to the grantees extended to but when approved by the departmental as-rights which they then held. The confirmation sembly it became, in the language of the regula- established the validity of the claims of the 263* tions of 1828, *"definitively valid," and parties as they then existed; that is, it deterthe estate granted was not afterwards liable mined that their claims were founded upon conto be devested except by regular proceedings cessions of the former government, which were on denouncement. Hornsby v. U. S. 10 Wall. genuine and entitled to recognition so far as 238, 19 L. ed. 903. The power of the governor they did not interfere with previously existing over it had ceased. He could neither revoke rights of others, which the government was the grant nor impair the interest of the grantee also bound to respect. Confirmation established by any attempted transfer to others. nothing more; it did not change the character The grant to the Fernandez, upon the con- of the grant to Flugge as one of specific boundfirmation of which the patent was issued, from aries, nor that to the Fernandez as one of which the defendants trace their title, was made quantity. The surveyor in surveying the claim by the governor of California in June, 1846, but upon the first grant was still under as great obwas not submitted to the departmental assem-ligations to follow the boundaries which it bly for approval, although made subject to that condition. The country passed under the control of the United States a few weeks afterwards, and the authority of that body ceased. The grant is for four square leagues of land, which it designates as unoccupied land, in the vicinity of the river Sacramento, and as bounded on the north by the faldas of the Sierra Nevada, a term which is sometimes translated slope and sometimes base of the mountains; on the south by the lands of John A. Sutter, and on the east by Feather river. As thus appears, there was no certainty or precision in the bound. aries designated. The term "slope or base of the mountains," whichever may be the correct translation, is of the vaguest import. The point where the mountains of the Sierra Nevada may be said to commence was then and always must be one of great uncertainty. No two persons would ever agree as to the precise point where their slope commenced or ended. Between the base, or any supposed slope, and the line of Sutter's land, many leagues intervened, and no western boundary of the tract is given. If we look at the map to which the grant refers we find the land represented as lying on Feather river, with its northern boundary on the faldas of the Sierra, with no other descriptive features to indicate either its northern or southern line. It is clear that no specific tract was intended by the governor, but only that the quantity desig

specified, repeated in the decree of confirmation, as though the second grant had never been issued or confirmed.

It is true, as stated by counsel, that the whole subject of surveys is under the control of the political department of the government, and is not subject to the supervision of the courts, except in those cases arising under the act of 1860, to which we shall presently refer. The courts must, however, determine, [*265 whenever the question arises, whether prior rights of other parties have been interfered with by the survey of a confirmed claim upon which a patent has issued. They cannot, in the action of ejectment, correct the survey made, but they can determine, its inconclusiveness to the extent essential to the protection of the prior rights of other parties. And whenever two surveys covering the same tract are approved by the political department, and a legal controversy arises respecting the land between claimants under the different surveys, the question which of the two surveys appropriates the premises in dispute is necessarily transferred to the judiciary. The fact that two surveys embrace the same land is itself proof that either one of the original concessions was improvidently issued and to the extent of its interference with the other was inoperative, or that error has intervened in one of the surveys. There is nothing in the language of this court,

or of the suprene court of California, in the several cases cited by counsel, which conflicts with this view. Beard v. Federy, 3 Wall. 479, 18 L. ed. 88; Waterman v. Smith, 13 Cal. 407; Moore v. Wilkinson, 13 Cal. 488; Stark v. Barrett, 15 Cal. 366; Teschemacher v. Thompson, 18 Cal. 26; Leese v. Clark, 18 Cal. 537. Those cases were all actions of ejectment, in which imperfect or equitable claims, or interests arising since the acquisition of the country, were set up against the legal title held under patents; and the subjects there considered were the effect of the patent as a conveyance of the government, and as evidence of the validity of the patentee's claim, and of its confirmation and survey, as against parties having such imperfect or mere equitable claims, or subsequently acquired interests. The patent, treated merely as the deed of the government, is held in those cases to have the operation of a quitclaim, or rather of a conveyance of such interest as the United States possessed in the land, and to take effect by relation at the time when proceedings were instituted before the board of land commissioners. The patent is also held in those cases to be record evidence of the action of the government upon the claim of the patentee under the Mexican grant, 266*] *establishing without other proof the validity of the claim and its rightful location as against all parties asserting, in the action of ejectment, merely imperfect or equitable titles, or interests acquired since the country passed under the jurisdiction of the United States. Actions of ejectment are founded upon the legal title, and parties contesting the title of the patentee in a court of law, it is there said, must show a superior legal title.

floating claim first surveyed and thus severed from the public domain, would carry the title to the premises. The grant to Alvarado, which was *then under consideration, was for [*267 ten leagues lying within exterior boundaries embracing several times the quantity designated; and the court, whilst holding that, as between the government and the grantee, the grant passed to the latter a right to the quantity of land designated, to be laid off by official authority in the territory described, said: “It is true 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." Frémont v. U. S. 17 How. 558, 15 L. ed. 246. A second floating grant, the claim under which is first surveyed and patented, and thus severed from the public domain, would seem to stand, with reference to an earlier floating grant within the same general limits, in the position which the subsequent grant with specific boundaries mentioned in the citation would have stood to the general grant to Alvarado. Ledoux v. Black, 18 How. 475, 15 L. ed. 457; Waterman v. Smith, supra.

But it is unnecessary to decide definitely this point now. The present is not a case of con

two floating grants within exterior boundaries embracing land capable of satisfying both. It is a case where one of the grants upon which a patent has issued, and that the earlier one, has specific boundaries, or such descriptive features as to render its limits easily ascertainable. With the right of the grantee to the land thus designated the claim of the donee of the second and floating grant could not interfere.

But in this case both parties stand upon pat-flicting patents issued upon a confirmation of ents; both have in these instruments the conveyance of the government, and a recognition of their respective concessions under the former government. In a controversy founded upon either patent as against imperfect or equitable claims or interests obtained since the acquisition of the country, the same language might be repeated which is used in the cases cited. But in the present controversy between parties claiming under two patents, each of which reserves the rights of other parties, the inquiry must extend to the character of the original concessions. The controversy can only be settled by determining which of these two gave the better right to the demanded premises. As between two floating grants of quantity within the same general tract, which is sufficently large to satisfy both, where neither grantee had received official delivery of possession under the former government, and where, as a consequence, there was no measurement or severance of the claim of either from the public domain, it may be that the party whose claim is first surveyed and patented will hold the better right to the land covered by his patent, and that the other party will be compelled to have his claim located outside of that patent. There would be great difficulty in finding any legal reason for invalidating the action of the government in locating the claim of the patentee in such case in any part of the general tract it might deem proper.

The language of this court in Fremont's Case would seem to justify the conclusion that the

But there is another view of this case which is equally *conclusive in favor of the [*268 plaintiff. We have thus far treated the survey of the two grants upon which the respective patents were issued, as made and approved under the act of March 3, 1851. But the survey of the claim under the Flugge grant possesses, with respect to the claim under the Fernandez grant, greater force than any such approval could give. It has received judicial sanction under the act of June 14, 1860, which makes it conclusive as against all adverse claimants under floating grants. That act provided that the surveyor general, when he had completed and plotted the survey of any confirmed claim, should give public notice of the fact by publication in two newspapers once a week for the period of four weeks; that during this time the survey and plat should be retained in his office subject to inspection; that upon the application of any party having such an interest in the survey and location of the land as to make it just and proper that he should be allowed to intervene for its protection, or on motion of the United States, the district court

The alleged estoppel of the plaintiffs is asserted from the fact that Larkin, who prosecuted the claim under the *Flugge grant [*271 But the defendants, to defeat a recovery by for confirmation, had previously located it on the plaintiff, also insist that his right of action land selected farther north than the tract finalis barred by the statute of limitations of Cali- ly surveyed and patented to him, and had anfornia; and also that he is estopped from as-nounced to others that his claim covered the land serting a claim to the demanded premises by the conduct and declarations of his predecessor, the claimant before the land commission, in claiming land under his grant situated in a different locality.