Knight v. United Land Association/Concurrence Field

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 venture to make some observations, in addition to those of my brethren, upon the propositions of law advanced by the court below. Those propositions, if maintained, would, in my judgment, unsettle titles held under patents issued upon such confirmed grants, and lead to great litigation in the state, to the serious detriment of its interests and those 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.

The tract confirmed is designated in the decree of confirmation rendered by the circuit court of the United States on the 18th of May, 1865, (4 Sawy. 553, 577,) 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 acquisition of the country, namely, the 7th 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 Francisco, or other competent authority, and, as to any residue, in trust for the use and benefit 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 latter officer in August, 1868. The survey, instead of following from its commencement on the east side of the tract to its termination the line of ordinary high-water mark of the Bay of San Francisco, as it existed on the 7th of July, 1846, followed such line only a part of the way. Of its departures from that line, it is sufficient to mention 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.

Survey or General Day succeeded the officer who had approved the survey, and he forwarded the protest and objections to the commissioner of the general land-office, accompanied by his opinion that the objections were well taken in several particulars, and recommended, among other things, that the plat and survey should be amended so as to include the marsh land lying on Mission creek within the four square leagues, and by the resurvey of the southern and eastern boundaries of the military reservation. The commissioner, however, disregarded the objections and approved the survey, founding his conclusion upon the alleged long acquiescence of the city and county of San Francisco, from which he inferred a recognition of its correctness and a waiver of the protest and objections.

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 authority, and, as to any residue, in trust for the use and benefit of the inhabitants of the city.' The legislation of congress releasing the interest of the United States to the city was also in trust for the beneficiaries named, (14 St. 4;) so that the city of San Francisco had no interest in the lands within the confirmed tract other than as a trustee, except where parcels had been acquired by purchase or conveyance from other sources than the pueblo. All pueblo lands she held simply in that character. It was incumbent upon her, therefore, to take such steps as were necessary to secure and perfect the title of her cestuis que trustent. She accordingly retained counsel to protect their interests as well as her own, and he made a formal appeal for the benefit of both to the secretary of the interior from the decision of the commissioner.

Certain lot-holders were also permitted to appear before the secretary and argue the case, as parties interested in the title. An appeal was also taken by the military commander of the department, on behalf of the United States, to correct alleged errors in the survey of the military reservation, which kept the whole survey open before the secretary until it was finally determined. Any change, either by the enlargement or diminution of the reservation, necessarily affected other lines of the survey, reducing or extending them as the quantity embraced within the tract surveyed was increased or diminished.

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 survey or 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 proceeded 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 protest were above high-water mark in 1846, they ought to be included in the survey and then the southern boundary line would have to be moved further north, excluding a corresponding quantity which would fall into the public lands of the United States. No stipulation or agreement, therefore, said the secretary, between the state and the city and county could estop or relieve the officers of the department from the duty of executing the decree, or of protecting the interests of the government; adding, that if the city and county should ask to withdraw the protest, or to have the same dismissed, the government would still have the right to make use of the objections and of the evidence filed in their support for its own protection as well as for properly surveying the claim in accordance with the decree. He therefore discarded entirely the ground which the commissioner had advanced as the principal reason for approving the survey.

The protest and objections of the city and county referred to tracts of marsh land lying near and south of Mission creek. They alleged that such lands were not overflowed by tide-water, except at the spring tides; that the line of ordinary high-water mark upon them on the side of the bay was sharply defined by a growth of samphire, a marine reedy plant, which grows down to such line, and no further. The testimony before the secretary showed that the line thus defined was traced with a blue pencil on the engraved map of the coast survey made by officers of the United States between 1850 and 1857, and that the marsh lands, including the premises in controversy, were above the line thus designated. Testimony of old residants of San Francisco, some of whom had resided there as early as 1842 and others in 1849, and down to a period long after 1851, and were familiar with the character of the land fronting on the bay, corroborated from their personal knowledge the evidence of this map, as to the marsh lands excluded from the survey being above the ordinary line of high-water mark of the bay.

It also appeared before the secretary that by an act of the legislature of California, passed March 26, 1851, the state had granted to the city of San Francisco the use and occupation for 99 years of certain 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 30 days after its passage the city of San Francisco should deposit in the offices of the secretary of state and of the surveyor general, and in the office of the surveyor of the city of San Francisco, 'a correct map of said boundary line, distinctly and properly delineated 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. 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 commissioner 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.

Subsequently, after Mr. Schurz had ceased to be the head of the interior department, and Mr. Teller had become secretary, application was made to the latter officer to review the decision of the former, and upon such application argument of counsel was heard, and a most extended consideration of the whole matter was had. Secretary Teller observed that all the material questions relating to the boundaries of the tract confirmed were settled, except the single inquiry whether or not, in running the line of ordinary high-water mark of the ocean and especially of the bay, the main shore or course line of such body of water identified by its larger description should be followed, cutting across the months of streams, estuaries, and creeks which, intersecting the body of the peninsula, find their entrance into the ocean or bay, or whether such estuaries as fall below high tide should be segregated by following up the tide line on one side and down on the other, so as to make them, as it were, a part of the sea. He said that his predecessor had decided that the former was intended by the decree and expressed its true construction, and, after mature deliberation, he adhered to the same view.

'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 sea." The boundary, he added, was not the stream, but the bay; consequently the ordinary high-water mark must be the high-water 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 that, 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 high-water 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 of his predecessor, and overruled the application 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 application it was strenuously contended, by the same parties who had resisted the action of his predecessors, that there was a want of jurisdiction on their part to review the decision of the commissioner of the land-office. Such contention was urged upon the supposed meaning of the statute, and on the ground that the supervisors of the city and county of San Francisco had by resolution directed that no appeal should be taken from his decision, and, when it was taken by counsel retained for the protection of the interests of the lot-holders as well as of the city, had declared that his action was unauthorized.

The secretary, in considering the objections, jections, referred to the fact that the supervisors, subsequently to those resolutions, had requested him, before whom they admitted the case was then pending relating to the boundaries of the military reservation, to take up and decide the case without further delay; and after a careful review of the question of jurisdiction and the procedings preliminary to the issue of the patent, he refused to recall the patent, holding that an order by him to that effect would be illegal and void, and that the matter presented for his consideration in the past proceedings of the case 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 in detail in the opinions of the different secretaries 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 recognition of its claim the city had met from them at every step the most strenuous opposition, and that every possible objection taken to the claim and survey since was then presented and fully considered by the different secretaries of the interior; so that with truth was it said in the recent decision of this court in San Francisco v. Le Roy, (138 U.S. 656, 672, 11 Sup. Ct. Rep. 364,) 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.

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 Cal. 1867-68, c. 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 department, 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 plain tiffs 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 tide-land 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 premiscs 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 location and had made surveys in their neigh borhood in that year, and that they were then below the line of ordinary high-water mark. He did not add 'of the bay;' but as the premises were where the water of the creek formerly ran, and where, for aught that appears in evidence, it may now run, it was the high-water mark of that creek to which he had reference.

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 with the certificate of approval of the survey or 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 Franciso, dated the 20th of June, 1884; also the plat of the pueblo lands finally confirmed to the city under instructions of the United States survey or 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 sides 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 guarantied 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 the defendant, the rejected survey of Stratton, in contravention of the principle that a rejected survey of officers of the land department is in law no survey, and inoperative for any purpose. It has so been held in numerous instances, and never to the contrary. In the particulars in which the Stratton survey was modified by direction of Secretaries Schurz and Teller, it was of no more efficacy as a legal document than so much waste paper. He apparently perceived that there was something bizarre in receiving as evidence a rejected survey, or a modified survey, except in the particulars in which the modification 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 reversed; thus brushing aside the important functions of that department over the surveys of private land claims, which it has exercised since its organization, and which have been always recognized by the courts of the United States. Cragin v. Powell, 128 U.S. 691, 697, 9 Sup. Ct. Rep. 203. 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.

There were several hundred claims to lands in California, under Mexican grants, presented 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 confirmed, the survey thereof by the surveyor 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 and 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 disturbance of the peace of its people.

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 embodied 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 are included,-legal or equitable, perfect or imperfect. 'It comprehends,' assaid by this court in Soulard v. U.S., 4 Pet. 511, 'every species of title, inchoate or complete. It is supposed to embrace those rights which are executory as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away.'

By the treaty of Guadalupe 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 treaty and the law of nations to protect. The 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 execution of their treaty obligations to protect the property claims of all persons, natural or artificial, were superior to any subsequently acquired interest of the state or of individuals. Mexico owned the tidelands 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 expedient; and whether she did make such disposition by her laws was a matter exclusively 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 estate in respect to all lands within her borders whether such as may be held in private or sovereigh right. In this respect no distinction can be made between the lands acquired by her through federal grants and such as she took by virtue of her sovereignty.'

The obligation of protection imposed upon the United by the law of nations. and assumed by the treaty, was political in its character, to be performed in such a manner and on such terms as the United States might direct. As held by this court in Beard v. Federy, 3 Wall. 478, 492, they declared by the act of March 3, 1851, to settle private land claims in California, the manner and the terms upon which they would discharge this obligation. They there established a special tribunal, or board of commissioners, before which all claims to land in that state derived from Spanish or Mexican authority were to be investigated. They required evidence to be presented respecting the claims; appointed law officers to appear and contest them on behalf of the government; authorized appeals from the decisions rendered by the commissioners to the district court, and from the decisions of that court to the supreme court of the United States; and declared that in the determination of the claims presented the commissioners and those tribunals should 'be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the supreme court of the United States, so far as they were applicable.' 9 St. c. 41, § 11, p. 633. It also made provision for the investigation and determination of the property rights of pueblos, and designated the officers who should in all cases survey and measure off the land when the validity of the claim presented was finally determined. When it appeared by the action of their officers and tribunals that the claim asserted was valid and entitled to recognition, and that its boundaries were ascertained, the government was to issue its patent to the claimant.

And what was the effect and operation of this instrument? It was not merely a quitclaim or conveyance of whatever interests the United States held in the lands embraced. It was something more. It was, as declared in the case cited, record evidence upon the title of the claimant from the former government. As there said: 'By it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection 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 government, so long as it remains unvacated, it is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent.' The patent, being thus conclusive, can only be resisted by those who hold paramount title to the premises from Mexico, antedating the title confirmed; that is, by persons who can successfully resist any action of the United States in disposing of the property, or in perfecting the title of the claimant.

In the case from which I have cited the court added, in order to impress the importance of this doctrine for the stability of titles in the state resting upon confirmed and patented Mexican grants: 'It is in this effect of the patent as a record of the government that its security and protection chiefly lie. If parties asserting interest in lands acquired since the acquisition of the country could deny and controvert this record, 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 possessors. 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 suggest.'

The doctrine of that case has never been departed from, but, on the contrary, has always been followed and approved. Numerous decisions of the supreme court of California, commencing with the thirteenth volume of its Reports, and extending down to a late period, express the same doctrine with equal clearness and emphasis. Moore v. Wilkinson, 13 Cal. 484; Yount v. Howell, 14 Cal. 465; Teschemacher v. Thompson, 18 Cal. 11; Leese v. Clark, Id. 535; Ward v. Mulford, 32 Cal. 365; Chipley v. Farris, 45 Cal. 528; People v. San Francisco, 75 Cal. 388, 17 Pac. Rep. 522.

But notwithstanding the superior and conclusive character of the title presented by the patent, and the emphatic decision of the highest tribunal of the country, and repeated decisions of the state supreme courts to the same effect, that until vacated that instrument was conclusive against the government and parties claiming by title subsequent, the referee found otherwise, and held that the plaintiffs, who derived whatever interest they possessed 29 years subsequently to that of the city, held the better right, and were entitled to judgment for the demanded premises; and such judgment was entered in one of the superior courts of the city. From that judgment an appeal was taken to the supreme court of the state, where it was affirmed. A rehearing being granted, a reargument was had; and a second time the judgment was affirmed by four judges of the court, the remaining three dissenting. 24 Pac. Rep. 818, 823. From the latter judgment the case is brought to this court on a writ of error.

From the opinions upon both affirmances, it appears that the court below, equally with the referee, lost sight of the principle that in actions at law a patent of the United States, upon a confirmation of a private land claim asserted by virtue of rights acquired under a foreign government, is not open to collateral attack, but must be taken as correct until vacated, not only as to the validity of the claim confirmed, but as to the boundaries established. It is hardly necessary to say that any attempt to overthrow these conclusions in either particular, where the tribunal affirming the validity of the claim and the department establishing the boundaries had jurisdiction, is collaterally attacking the patent.

That the land commissioners and the circuit court of the United States had jurisdiction to hear and determine the validity of the claims asserted by the city of San Francisco is not open to question. The laws of the United States gave them such jurisdiction, and when that claim was confirmed the law directed by what officers its boundaries should be established and surveyed. It was the exclusive province of those officers to ascertain where the line of true boundary ran, subject to the control and supervision of the interior department. To say that those who directed and supervised the survey had not jurisdiction to perform that duty, is to deny efficacy to the laws of congress.

The court below upon the first affirmance rejected the boundary as established and surveyed by the officers appointed by law for that purpose, and assumed that the line of ordinary high-water mark of Mission creek running into the bay was, as far as such line extended, the true boundary designated by the decree, and held that land below such line was the property of the state. In other words, it assumed that the boundary of the pueblo was to follow the line of high-water mark of the creek, and not be confined to the high-water mark of the bay. It thereupon stated that the question involved was whether the officers of the land department had power to patent land outside of the natural boundaries given in the decree of confirmation.

In this statement the learned court fell into an error. No such question was involved in the case. The approved survey upon which the patent was issued crossed the mouth of Mission creek, and included the lands above its mouth; among them, the premises in controversy. The question involved, therefore, was whether in an action of ejectment for the possession of those lands the plaintiffs could collaterally assail the correctness of the official survey upon which the patent was issued, and establish another line as the true boundary, and then recover the lands on showing that they were outside of the new boundary thus established. I do not think that such a position was ever successfully asserted in any court. If there was error in the survey embodied in the patent, it could not have been shown in this action. It could only have been corrected by direct proceedings for that purpose instituted by the government or by its authority. This is elementary law, and in vain will authorities be sought to contradict this view.

Proceeding on the assumption that a different line from the one officially established constituted the true boundary line of the tract confirmed, the court below declared that it was the duty of the surveyor to follow such different line,-though otherwise directed by the highest officer of the land department, who had the sole right of control in the matter,-and that, as the surveyor did not follow that different line, he included, according to its judgment, lands within his description not within the decree of confirmation.

I may speak of the decree with some confidence, as a member of the court by which it was rendered, and a distinct recollection remains with me of the circumstances under which the language used was adopted. The original decree of confirmation was rendered in October, 1864, and stated the land confirmed to be 'a tract situated within the county of San Francisco, and embracing so much of the upper portion of the peninsula on which the city of San Francisco is situated as will contain an area of four square leagues,' as described in the petition. A motion for a rehearing was made, which kept the case open until the following spring; the judge who pronounced the decree being absent from California,-in Washington, in attendance upon the supreme court. On his return the question of a rehearing was brought up, when it was suggested by counsel that the decree needed correction, so as not to include in the claim confirmed the beach and water lots conveyed to the city by the act of the legislature of 1851. Reference was made to the map prepared under the directions of that act, on which a line was drawn in red ink, making the separation of lands above the ordinary high-water mark of the bay and lands below it; and it was suggested that the insertion in the decree of the words 'above ordinary high-water mark, as the same existed at the date of the conquest of the country, namely, the 7th of July, 1846,' would establish the line as indicated on the map, and that thus in the decree of confirmation lands granted to the city by the state would not be affected. Upon that suggestion, made by Mr. Gregory Yale, a lawyer of distinction at the bar, whose clients had become alarmed at the language of the original decree, the change was made.

In addition to this fact, it may be observed that at the time the circuit court was not ignorant of the universal rule governing the measurement of waters,-to which the supreme court of the state makes no reference in its decision, and of which it seems to have been entirely oblivious,-that where water of a larger dimension is interested by a water of a smaller dimension the line of measurement of the first crosses the latter at the points of junction, from headland to headland. The existence of tide-lands in the intersecting water in no respect affects the result. For illustration, in the measurement of a body of water like Long Island sound, when the Connecticut river is met the line of survey does not follow up that river to Hartford because the tide is felt at that place, but it crosses the mouth of the river from headland to headland. So, too, the measurement of Chesapeake bay does not include the Potomac river up to Washington because the tide is felt at the site of the capital. It would be absurd to include in the measurement of the bay of San Francisco the waters of the river Sacramento as far as the city of that name, nearly 100 miles above the bay, because the tide is felt there, or to embrace the river San Joaquin as far as Stockton because the tide reaches to that place. This is so plain that it excites surprise that any question should have been made upon the subject. And if a river extending 100 miles or more could not be included in the bay, even though affected by the tides, neither can a stream of less dimensions, though not exceeding over 1 or 2 miles. Not only has this rule in the measurements of waters prevailed on the continent of Europe from the time of the Roman empire, but it has always been accepted as controlling in England and in the United States, and never been, that I am aware, questioned except in the present case.

When the survey here was pending before one of the secretaries of the interior, application was made to the head of the coast survey of the United States for the rule adopted by that bureau in the measurement of waters, and the answer was the statement of the rule which I have given; and it is a singular fact that, as an illustration of its application, reference was had to the Bay of San Francisco and Mission creek, and the declaration made that in the measurement of the bay the line of the survey would cross the mouth of that creek. Admiral Rodgers, who was at one time the head of the coast survey in California, and had surveyed the line of ordinary highwater mark of the Bay of San Francisco, filed his affidavit to the effect that he had since 1851 been stationed in California, in charge of the United States survey of the coast thereof, including the peninsula of San Francisco; that the traced chart or map showing the line of ordinary high water along the eastern side of the peninsula of San Francisco from Rincon point to and including Islais creek, as surveyed by the coast survey of the United States in 1852, was prepared from the published surveys of the coast survey of the United States; and that the line laid down on that map in blue pencil, from Rincon point, around Mission bay, to and including Islais creek, and crossing Mission and Islais creeks, was a true delineation of the line of ordinary high-water mark as it existed when he first knew it, in the year 1852. He added that 'in determining a boundary line stated as the line of 'ordinary high-water mark,' on the Bay of San Francisco, there can be no other course than to follow the stated line of ordinary high tide on the shore of the bay, crossing the mouths of all inferior tidal streams or estuaries, many of which enter into San Francisco bay at different points, and not to follow the meanders of any such inferior tidal streams or estuaries.' The assumption, therefore, of the court below, that the decree of confirmation called for any other line than the one actually surveyed and embodied in the patent, was an error. It was founded upon a misapprehension of the law governing the surveys of waters of that kind, or from overlooking its existence. The statement in the opinion of the court as to the requirement that the surveyor general in making the survey of a confirmed claim should follow the boundaries of the decree as near as practicable, whenever the decree specifically designates them, is undoubtedly correct; and it was the duty in this case of the surveying officers of the land department, under the supervision of the secretary of the interior, to ascertain what those boundaries were, and to follow the decree in making the survey. That they accomplished this is conclusively established, so far as the present action is concerned, by the official survey itself, returned by them, and subsequently approved by the commissioner of the land-office.

The question as to what was the boundary line of the tractconfirmed also became the subject of judicial inquiry in the circuit court of the United States in 1878. An action was brought by one Tripp, who is one of the plaintiffs in this case, for a parcel of land constituting a portion of a block in the city of San Francisco. The premises were situated where Mission creek formerly ran, and distant about a mile from its mouth. All that part of the stream covered by the block in which the premises were situated had been filled in, and buildings erected thereon, which were occupied as private residences. The plaintiff claimed title under the same conveyances of the board of tide-land commissioners upon which the plaintiffs below rely in this case, and the same contention was made there as here. The question presented was whether the title to those premises passed by the tide-land commissioners' deeds, or whether they were within the limits of the pueblo claim as confirmed, although not at that time patented. The court said: 'Whether the waters of the bay were ever carried by the tide over the lands is a matter upon which the evidence is conflicting. The creek was often swollen by water from the adjacent hills so as to overflow its banks; and the tide sometimes, though not regularly, forced back the waters of the creek so as to cause a similar overflow. But, from the view we take of the case, it is immaterial whether the lands could ever properly be termed tide-lands or marsh-lands, whether they were at any period covered by the daily tides, or lay beyond their reach at their highest flood. The record of the proceedings and the final decree in the Pueblo Case have been given in evidence and from them it appears that the premises are situated within the limits of the tract confirmed to the city of San Francisco.' The court added: 'Mission creek never constituted any portion of the Bay of San Francisco, any more than the Sacramento river constitutes a portion of the Bay of Suisun, or the Hudson river a portion of the Bay of New York. As the demanded premises lie where Mission creek formerly existed, or where its banks were, they necessarily fall within the tract confirmed to the city. The boundary of that tract runs along the bay on the line of ordinary high-water mark, as that existed in 1846, crossing the mouth of all creeks running into the bay, and that of Mission creek among others. The boundary would have been a very singular one, had it followed the windings of that creek and its branches wherever the tide-waters of the bay may have flowed. The laws, of Mexico relating to lands to be assigned to pueblos required that such lands should be laid out in a square or prolonged form, according to the nature of the country, and, so far as practicable, have regular lines for boundaries. The decree of the United States circuit court in confirming the claim of the city followed this requirement and gave the boundaries, which could be easily ascertained, and which formed as compact a body as the situation of the country would permit.' Tripp v. Spring, 5 Sawy. 209, 212.

As thus appears, the identical question involved in this case was decided in that. No case was ever tried with more care or greater consideration, and at the conclusion of a trial of several days the court decided that judgment must be entered for the defendant. The presiding justice stated the grounds of the decision orally, and observed that, as the questions involved were deemed of great importance, he would at a subsequent day file an opinion embodying their substance. It is a common practice with judges of the highest courts to give opinions orally, and write them out subsequently, after the decision is rendered; and that fact in no way affects their authoritative character. The pressure of business before the court may often prevent any other course being pursued.

Counsel for the plaintiff then stated that special findings in the case were desired, in order that, should the case reach the supreme court, it might be finally determined there. Upon that suggestion the entry of judgment was stayed, and an adjournment of the court had, that such findings might be prepared. On the next day the case was dismissed by stipulation of parties.

The opinion of the court, pronounced at the close of the trial, and subsequently written out, was, notwithstanding the dismissal, as much authority on the questions of law presented as though a formal judgment had been entered, although the judgment ordered, because not entered on account of the dismissal, could not be pleaded in bar of a future action.

The court below, having assumed that another line than the one officially established was the true one, took the extraordinary ground that the error committed in that respect by the surveying officers, though acting under the express directions of the land department, was jurisdictional and fatal to their action, rendering it void, and opening the patent embodying the survey to collateral attack; and it proceeded to cite several decisions in supposed support of this view, but which only were to the effect that, where the land department had no jurisdiction over the subject-matter considered, its patent could be assailed collaterally.

In thus holding the court failed to distinguish between what was upon its own statement mere error in the action of the land department, and matters which were entirely beyond its jurisdiction. The ascertainment of the true line of the boundaries of the claim confirmed was a matter especially intrusted to that department by the laws of congress, as already stated. If the officers of that department in executing the survey made mistakes, ran erroneous lines, and included lands which they should have excluded, those facts did not justify the assertion that they acted without jurisdiction in making the survey, and that therefore their whole proceedings were void. If all that is asserted be true, they only erred in the exercise of their jurisdiction; and the remedy for their errors before the issue of the patent lay in an appeal to higher officers of the department,-from the surveyor general to the commissioner, and from his decision to the secretary of the interior; and if, after the issue of the patent, like objections were urged, the remedy could be sought only by direct proceedings.

The distinction between errors committed where jurisdiction exists to take the proceeding in which the alleged error arises, and where there is an entire want of jurisdiction over the subject-matter considered, is too familiar to be discussed. The distinction is constantly applied with reference to the proceedings of ordinary tribunals. If they have jurisdiction of the subject-matter and the parties, their judgment cannot be collaterally assailed for mere errors committed in the proceedings leading to it. The remedy for errors must be sought by application for a new trial, or by appeal for a review to an appellate court. The same distinction prevails with reference to the proceedings of the special tribunal or department of the government to which is intrusted the supervision of measures for the issue of its patent.

The cases referred to and dwelt upon as supposed to support the opposite doctrine are not susceptible of the meaning attributed to them. The principal cases cited are Smelting Co. v. Kemp, 104 U.S. 641, Wright v. Roseberry, 121 U.S. 488, 7 Sup. Ct. Rep. 985; and Doolan v. Carr, 125 U.S. 618, 8 Sup. Ct. Rep. 1228. They assert no new doctrine, but law which has always existed and been recognized, though seldom more misapplied than here. That the United States cannot convey by patent what it never owned, or has already parted with, no matter with what formality the instrument is issued, is a self-evident proposition. The government in that respect is under the same limitations as an individual. That is the only purport, so far as the point raised here is concerned, of the decision in Wright v. Roseberry, where a patent of the United States for land claimed under the preemption laws was defeated by showing that the premises in controversy were swamp and overflowed land previously conveyed to the state by the swamp-land act of September 28, 1850. 9 St. 519. Nor could the United States authorize a patent for land to the pueblo, or to its successor, the city, if the former government of Mexico had conveyed the property to others. There are such cases within the limits of the pueblo, and the claims have been confirmed and patented under the land department to the grantees or their representatives. Whenever, in the Pueblo Case, it could be shown that grants had been made by Mexico of portions of the land claimed by the pueblo to other parties, such grants were excepted from the confirmation to the city. Nor can a patent of the United States be issued by officers of the land department for lands reserved from settlement and sale, and the want of authority in the officers can be shown a law to defeat a patent of that character. It is in such case an attempted conveyance of land not open to sale, as would be a patent for land within the Yellowstone or Yosemite park. It was of land within the limits of a valid Mexican claim excluded from grant to the Central Pacific Railroad Company that the decision in Doolan v. Carr had reference. It was there held that the patent to the railroad company could be defeated by showing that the lands conveyed were thus excluded. There was nothing new in the doctrine that it could be shown in an action at law that the property patented was not subject to grant. Nor can it be questioned that, if parties not authorized by law to supervise the proceedings to a patent should assume that function, the objection might be taken when the patent was offered in evidence. As, for instance, if the supervisors of San Francisco should undertake to exercise the functions of the land department, any one prosecuted under their patent could assail it by showing the power to execute such an instrument was vested in a different body. So, too, if the estate which the land department was authorized to convey was different from that transferred by the patent,-as, for instance, a leasehold interest, instead of the fee,-that fact could be shown, and the patent limited in its operation.

In Smelting Co. v. Kemp, the court treated at large of the conclusive presumptions attending a patent of the United States for lands, but added, that in thus speaking of them, it assumed 'that the patent was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.'

The attempt is futile to use these cases, or any other case, to establish the proposition that if an error can be shown in the action of an officer of the land department in a matter subject to its jurisdiction the proceeding of the officer may be treated as a nullity, and the patent issued thereon be collaterally assailed. This view is untenable, and does not merit serious consideration. If it could be sustained, it would be subversive of all security in the judgments of ordinary tribunals, as well as in those of special tribunals like the land department. Nor is there any pertinency in the observations as to the reservation from grant of the seashore under the law of the former government. No claim was ever made in the Pueblo Case for any part of the seashore. Those terms apply in this country only to land covered and uncovered by the daily tides. They cannot possibly have any application to the banks of creeks, or to land under their waters. The rule of the civil law of Europe, that lands covered and uncovered by the tides at their highest flood during the year constitute the shore of the sea, has never been applied to that portion of this country ceded to the United States by Mexico. The claim of the pueblo was for land above the ordinary high-water mark of the bay, not for any land covered and uncovered by the tides, either daily, or when they reach their highest point during the year. As said in San Francisco v. Le Roy, 138 U.S. 656-671, 11 Sup. Ct. Rep. 366: 'The lands which passed to the state upon her admission to the Union were not those which were affected occasionally by the tide, but only those over which tide-water flowed so continuously as to prevent their sue and occupation. To render lands tide-lands, which the state, by virtue of her sovereignty, could claim, there must have been such continuity of the flow of tide-water over them, or such regularity of the flow within every twenty-four hours, as to render them unfit for cultivation, the growth of grasses, or other uses to which upland is applied.'

The reasons given by the court below on the second affirmance of the judgment of the referee are marked by the objections stated to its former opinion. The true doctrine as to the effect of patents in actions at law is stated in a decision of the court below in De Guyer v. Banning, 27 Pac. Rep. 761, rendered while this case has been pending here, in which that court, following a long line of previous adjudications, unbroken except by this case, declares that upon a confirmation of a Mexican grant the patent issued by the United States to the claimant is the only evidence of the extent of the grant, and that if there is a conflict as to its location and extent, between it and the decree of confirmation, the patent must control. It is the only doctrine which will insure peace and tranquillity to parties holding under patents issued upon confirmed Mexican grants. Any other doctrine would introduce endless confusion and perplexity as to all such titles. If there be in fact any material conflict between the boundaries given in the decree of confirmation and those described in the official survey, the only remedy is to be sought by direct proceedings instituted by the government, or by its authority. Until the alleged conflict is thus determined and adjusted, the patent must control.

From the views expressed, I am clearly of opinion that the supreme court of the state erred in affirming the judgment * of the superior court entered upon the report of the referee. It should have reversed that judgment, and ordered judgment for the defendant. This conclusion is, I think, established beyond all controversy in the opinion of the court. But it is unnecessary to pursue this case further. I have treated it at much length because the title of the city has been a subject of consideration in one form or another for now over 39 years, and the questions presented have been discussed by counsel with marked ability and learning. The claim was originally presented to the board of commissioners in 1852, and it was decided by that board in 1854. It was then appealed to the district court of the United States, and there remained unacted upon for over eight years. An act of congress then authorized it to be transferred to the circuit court of the United States, to which court it subsequently passed in September, 1864. In October following a decree of confirmation was entered, which was modified May 18, 1865, and then entered in its final form. An appeal from that decree was taken to the supreme court of the United States, and was dismissed by that court in December, 1866, on motion of the attorney general upon stipulation of parties. A survey was made of the confirmed claim in 1868; and that survey, being appealed from, remained unacted upon before the commissioner of the general land-office for over nine years. After it was acted upon by him an appeal was taken from his decision to the secretary of the interior; and it was before one secretary after another for five years, so that the patent was not issued until 1884.

Even then the opposition to the just claim of the city and of parties holding under the city did not cease, but has been continued in one form or other ever since. It is to be hoped that all annoyances and litigation from such opposition will now be ended.