Page:The Green Bag (1889–1914), Volume 06.pdf/434

 Some Famous Litigants.

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SOME FAMOUS LITIGANTS. By Benjamin F. Burnham. THE recent death of William McGarrahan and the vicissitudes of his proceed ings for more than a third of a century in the courts and Congress to recover Panoche Grande from the New Idria squatters, have awakened a wide interest in the subject of spunky litigants generally. In 1844 the Mexican Government, through its California governor, Micheltorena, grant ed to Vicent Gomez " Panoche Grande," a tract of land now in Fresno and Monterey Counties, California, and which contains the New Idria quicksilver mines. (Such grants were sustained in the Hidalgo treaty, sec. 9, U. S. Stat. 229; 631.) The grant was con firmed by the Southern California Federal Court, and the survey of the surveyor-general was approved in 1862. In 1857 Gomez had conveyed to McGarrahan. In 1863, against Maxwell and other ad venturous mining squatters, McGarrahan obtained a judgment in ejectment and an in junction restraining them from committing waste. From this the defendants took an appeal, which in 1865 was sustained, on the ground of an alleged discrepancy between the petition and the decree in describing the tract.1 It appears1 that one Ord, who had been counsel for Gomez, became United States district attorney for Southern California, and entered into a bargain with Gomez to allow a reversal, by the District Court, of the decree of the board, and a consequent confirmation of the claim, on condition of receiving himself a portion of the land, which afterwards he did receive. Our present limits preclude recital of the details of the nunc pro tunc decree of 1858 for "three leagues "; the "four league amend-

ment"; the absconding of Ord; the order of Judge Ogier of 1861, setting the case for trial de novo; the complication from Judge Ogier's death; Mr. McGarrahan's fight as an innocent purchaser for value (probably $11,000), and the decision in 1865, that a decree, although obtained by fraud, will sustain an appeal for the purpose of correction. From the decision of the Supreme Court of California, McGarrahan sued out a writ of error to that of the United States Court, his counsel being Montgomery Blair, Matt H. Carpenter and Charles P. Shaw.1 In 1877 came the decision "that because this record does not show a patent counter signed by the recorder, it is not sufficient to prove title in the party under whom McGar rahan claims. This makes it unnecessary to consider any of the other questions which have been argued; and the judgment is af firmed." Mr. McGarrahan next laid siege to Con gress for relief; there being many prece dents.1 From report No. 1, 53d Congress, Oct. 3, 1893, to accompany H. R., 415, it ap pears that the New Idria necromancers have received none too much credit — or discredit — for having "put money where it would do the most good." At page 6 is recapitulat ed : firstly, proof of the legal grant to Gomez, and transfer of the title to McGarrahan; secondly, the confirmation by the Califor nia Federal District Court; thirdly, the At torney-General's entry for decree in the Supreme Court; fourthly, the order of the Secretary of the. Interior, Caleb B. Smith, that a land patent issue to McGarrahan, un obeyed; fifthly, that' of his successor, John P. Usher, also unobeyed, " for some reason

1 McGarrahan v. Maxwell, 28 Cal. 75. 2See United States -'. Gomez, 23 How. 327; I Wall, 690; 3 Wall, 752.

1 McGarrahan v. New Idria Min Co., 96 U. S. 316. 2 E. g., 12 U. S. Stat. 808; 13 id. 136; 534; 372; and acts in 1860 and 1861.