United States v. Noe

THIS was an appeal from the District Court of the United States for the northern district of California.

It was a claim for an island in the Sacramento river, in California.

The case is stated in the opinion of the court.

It was argued by Mr. Black (Attorney General) and Mr. Stanton for the United States, and by Mr. Benham for the appellee.

The arguments upon the merits of the case generally need not be stated, as the decision of the court turned upon a single point, which was treated by Mr. Benham thus:

The land was not occupied, but it was situated in a very remote quarter of the country, in the midst of hostile Indians. This rendered settlement impossible for several years after the date of the grant, and until political disturbances arose, which prevented the grantee from occupying it up to the change of flags.

In regard to this point, the case is stronger than Fremont's. Elwell's inability to make a diseno at the time the petition was presented was stated as in that case, and, as the evidence discloses it, for the same reasons. Here its preliminary production was dispensed with, as in that case, and the conditions usually imposed were not inserted in the grant. Yet, in the Fremont case, where the conditions were imposed, the court expressed themselves as being encouraged in holding him excused for his default, because the Mexican Governor had dispensed with the diseno, for the reasons urged.

There could not, however, be default in this case, for no time was fixed for performance.

Arredondo's Case, 6 Peters S.C.. R., 745.

The presumption of abandonment cannot arise.

There was no denouncement, and the right was unimpaired at date of cession. Denouncement was necessary to divest the grant.

Fremont's Case.

Mr. Justice CAMPBELL delivered the opinion of the court.