The writ of venditioni exponas is a simple order of the Court to sell property already levied on under execution. It confers no power to levy, and a recital in the return that the sheriff had levied and sold by virtue of the writ is an unimportant error, when it appears that the levy had been previously made under execution.
A description, in a sheriff's return, of city lots, by numbers, referring to the official city map, is sufficient.
The objection that tho deeds, through which the plaintiff in ejectment deraigns title, are not properly acknowledged, cannot he maintained by one who has no privity with plaintiff's grantors.
Under the laws of the Indies, whenever a pueblo was formed by a grant to a founder, or the union of ten or more families, or the foundation of a presidio, or the secularization of a mission, eaeh pueblo was entitled in property to certain tracts of land within the limits of the town to be set apart by them, called commons, pasture-grounds, and municipal lands, by virfcure of their organization as pueblos.
The republic of Mexico, after the revolution of 1824, fully recognized the rights of the towns in their commons, pastures, and municipal lands.
Whether tho Mexican government retained any power to make grants within the limits of a pueblo, or not, the right of the pueblo to have the municipal and common lands assigned, was an acknowledged equity, charged with which the United States government succeeded to the fee.
The act of Congress of 1851 operates as a grant to the pueblos of all lands within their limits, vacant and ungranted, on the seventh of July, 1846.
Such a confirmation is higher evidence of title than a patent, because it is a direct grant of the fee, by the sovereign, through the legislative department, while a patent is only a ministerial act.
The pueblos, under the laws of Spain and Mexico, had the right to dispose of certain lands within their limits, to defray municipal expenses.
The municipal law remained unchanged, after the conquest, until 1850, and grants of pueblo lands, by American alcaldes, were grants by the pueblo of its own property, which it had a right to transfer.
Whether tho municipal lands of a pueblo could be sold at forced sale, or not, under Mexican law, the act of Congress of 1851 creates a new tenure, and operates a confirmation of the fee in the town or city, and by the adoption of the common law, in 1850, its lands became liable to execution-sale.
The place called Punta Yerba Buena, on which the city of San Francisco now stands, seems never to have been a pueblo separately from the presidio, which was founded in 1776.
Opinion — Murray
Murray, C. J., delivered the opinion of the Court. This was an action of ejectment, brought to recover the undivided half of two town lots in San Francisco.
The first error assigned is, that the Court admitted in evidence the writ venditioni exponas. The error is said to arise from the fact that the return of the sheriff upon the writ showed that he had levied upon and sold the property, by virtue of the writ, when it had already been levied upon by an execution which had expired. The writ of venditioni exponas is a simple order of Court, directed to the officer, commanding him to sell the property already levied on. It is no authority to levy, and the recital in the return that he had levied and sold by virtue of the writ, would be unimportant, when it appeared that the property had been previously levied upon, and that the writ only directed the sale thereof. Admitting that the officer, through mistake of the nature of the writ, had thought proper to levy upon the property, this unnecessary act on his part would not vitiate the sale, which would have been perfectly regular without it. Smith v. Morse, 2 Cal. In addition to this, the irregularity of the sheriff’s proceedings would not defeat the sale. Smith v. Randall, Jan. T., 1857.
The next error alleged is, that the description of the lots in the sheriff’s return is insufficient. They are described by reference to the official map of the city, as lots one hundred and forty [187]and one hundred and forty-one, which we suppose is sufficiently certain, for all practical purposes. Again, it is contended that the plaintiff cannot maintain an action of ejectment, as tenant-in-common, for an undivided half interest. It is said that tenants-in-common should sue for partition, or unite in a conveyance to one party, for the purpose of bringing suit.
We have repeatedly held, that tenants-in-common must sue separately, for the recovery of real estate, and we know of no rule which would compel a party to divest himself of, or alter his estate, for the purpose of asserting his title thereto. Again: it is said that the jury found a special verdict, showing the value of the permanent improvements, which should have been set-off against the damages, under the two hundred and fifty-seventh section of the Practice Act. There was no application for any such relief, the defendant claiming under the act of 1856, for the relief of settlers, which has already been held unconstitutional by this Court; besides which, the improvements were made after the commencement of the suit.
The act of Congress of 1851, operates as a grant to the city of San Francisco of all the vacant lands within her limits, and the confirmation of tho F. S. Land Commission is final as to tho boundaries therein laid down, the appeal therefrom having been dismissed.
Persons who now contest a grant by competent authority within the city limits, must rely on a sufficient title, issued by competent authority, prior to July 7, 1846.
Under the laws of Mexico, and the decrees of the Departmental Assembly of California, the ayuntamiento and the alcaldes had power to grant limited portions of the municipal lands of, the pueblo. The American alcaldes, appointed after the conquest, had the same authority, as the municipal law remained unchanged until 1850.
Whether under the Mexican law the municipal lands of tho pueblo could be sold at forced sale or not, the act of Congress of 1851, vested the city with the fee of the land, and, by the common law, adopted 1850, it became liable to execution-sale.
A sale of tho municipal land of tho city in January and February, 1852, on an execution issued under a judgment against the city, rendered September 18,1851, conveyed a legal title to the land, upon which ejectment can be maintained.
An outstanding title in a third person will defeat plaintiff's recovery in ejectment, although the defendant does not connect himself with it.
The value of improvements on land may he set-off against the rents and profits thereof.
Per Burnett, J.—The aet of Congress of 1851, vested the title of the ungranted lands within the city limits, in the city of San Francisco, and a sheriff's sale in 1852, under a judgment against the city, entered in September, 1851, passed the title of the city in the purchaser.
Per Terry, J.—Considerations of public policy and justice, as well as regard for individual rights acquired under the law, as announced by the highest judicial tribunal, imperatively demand a strict adherence to the doctrines of the case of Cohas v. Raisin.
The next error assigned is, that the Court charged the jury, that if they found the Limantour claim fraudulent, they should find for the plaintiff. This instruction was not erroneous, under the particular circumstances. The defendant did not attempt to connect himself with the Limantour claim, in any way, and the question, whether that grant was fraudulent or not, had been distinctly made before the jury.
The objection that the conveyances through which the plaintiff deraigned title, were not properly acknowledged, is untenable, as the defendant does not claim as a subsequent purchaser, and there is no privity between his pretended title and that of the plaintiff.
The argument of the appellant assumes, first, that the city of San Francisco was not the owner of the premises in controversy at the date of the sale thereof to the plaintiff, i. e., that the fee of the land was not in the city, but remained in the government; and, second, conceding that the city had some estate, right, or interest in the land, it was not subject to sale on execution.
The argument consists mainly in reference to the case of Woodworth v. Fulton, and in a review of the case of Cohas v. Raisin, in which the decision of the former case was overruled. In reference to the latter case, it is due to myself to say, that I was absent at the time it was argued, but learning on my return that it had been submitted on the questions upon which it was afterwards decided, I wrote a special concurrence. That concurrence proceeded on the ground that San Francisco, at the date of the grant in question, was a pueblo, and by the laws of Spain and Mexico was the owner of municipal lands, which, might be disposed of by her alcaldes or other municipal officers; and, second, that the act of congress of 1851, “to settle private [188]land claims in California,” operated a grant to the city of San Francisco of all the lands within her boundaries in 1846. So that whatever the title of the United States might have been at the time of the treaty, the city of San Francisco, if she had any municipal lands, although the title before that time was inchoate, became the absolute owner thereof in fee.
I shall endeavor to maintain these two propositions in this opinion, and to establish at the same time, (conceding that the opinion of Cohas v. Raisin is not law,) that this Court is bound by that opinion on the principle of stare decisis, and that it would be a violation of every principle of morality and justice to disturb it at this late day.
In such cases, Courts are permitted to exercise a wide discretion, and judges are not expected or required to overturn principles which have been considered and acted upon as correct, thereby disturbing contracts and property, and involving everything in inextricable confusion, simply because some abstract principle of law has been incorrectly established in the outset. The books are full of cases in which learned Judges have acknowledged the errors committed by themselves or their predecessors, and at the same time refused to overthrow the rule established. That Judge, who, from petty vanity, and the sake of showing himself more wise and learned than his predecessors, would overturn a rule which for years had settled the rights of property, should be regarded as the common enemy of mankind, and unworthy of the high trust that had been confided to him.
I now proceed to examine the question whether San Francisco was a pueblo, and whether in that capacity it was the owner of municipal land, with the disposition of which her officers were invested.
At an early period after the conquest of Mexico, regulations were made by the Spanish Crown for the reward of further discoveries, and the settlement of the country. These decrees are collected in the Recopilación de las Indies.
A regulation was promulgated in 1528, to be found in Liber 4, title 7, law 7, of the Laws of the Indies, which authorized grants on certain conditions, to the founders of towns and pueblos. It is as follows : “ The tract of territory granted by agreement to the founders of a settlement shall be distributed in the following manner: They shall, in the first place, lay out what shall be necessary for the site of the town and sufficient commons, and abundant pasture for the cattle to be owned by the inhabitants, and as much besides, for that which shall belong to the town, (propios.) The balance of the tract shall then be divided in four parts; the one to be selected by the persons obligated to form the settlement, and the remaining three parts to be divided in equal portions among the settlers.” Law 11, same title, provides as follows: “ The lots shall be distributed among the set-[189]tiers by lot, beginning with those adjoining the main square, and the remainder shall be preserved, so as to give as rewards to new settlers, or otherwise, according to our will, and we command that a plan of the settlement be always made out." Law fourteenth, of same title, further provides: “ After having laid out a sufficient quantity of land for commons of the town (exido) conformably tó what is provided in that behalf, the persons authorized to make the discovery and settlement, shall lay out reservations, (dehesas,) adjoining the commons, (exidos,) for oxen, horses, and cattle, to be slaughtered, as well for the ordinary number of other cattle, which the settlers are bound by law to maintain, and a good deal more besides, which shall belong to the council, and the remainder shall be laid out for cultivation, in tracts equal in number to the town-lots contained in the settlement, and be drawn by lot. And if there be any land suited for irrigation, it shall also be distributed by lot in the same proportion, to the first settlers, and the remainder shall remain vacant, that we may grant them to new settlers. From these lauds the Viceroys shall separate those which appear tobe fit for reservations (propios) for the settlements which have none —the proceeds of which will serve to pay the corregidores, leaving always sufficient commons, reservations, and pastures, as is prescribed above, and let it be so executed." 2 White, 47.
We have thus seen that the law of 1523, authorized the formation of towns with exidos (commons), and propios, municipal lands, the title to which was to be vested in the inhabitants of the towns. It required a further regulation to fix the extent of the pueblo.
This was done in 1538, by a decree, which is found in Lib. 4, tit. 5, law 6, of the Laws of the Indies, to the following effect:
“ If the situation of the land be adapted to the founding of any town, to be peopled by Spaniards, with a council of ordinary alcaldes and regidores, and if there be persons who will contract for their settlement, the agreement shall be made upon the following conditions : That within the prescribed time, it shall comprise, at least, thirty heads of families, each of whom to possess a house, ten breeding cows, four steers, etc.; he shall, moreover, appoint a priest to administer the sacrament, who, the first time, shall be of his choice, and afterwards according to our royal patronage; he shall provide the church with ornaments and articles necessary for Divine worship; and he shall give bond to perform the same within said period of time; and if he fail in fulfilling his agreement, he will lose all that he may have built, worked, or repaired, which shall be applied to our royal patrimony, and incur the forfeiture of one thousand ounces of gold to our chamber (camera); and if he should fulfill his obligations, there shall be granted to him four square leagues of territory, either in a square, or lengthwise, according to the quality of the [190]land, in such a manner that when located and surveyed, the four leagues shall be in a quadrangle, and so that the boundaries of said territory be at least five leagues distant from any city, town, or village, inhabited by Spaniards, and previously settled, and that it cause no prejudice to any Indian tribe, nor to any private individual.”
Law seven, of same book and title, declares: “ If any one should propose to contract for a settlement in the prescribed form, to consist of more or less than thirty heads of families, provided it be not below ten, be shall receive a grant of a proportionate quantity of land, and upon the same conditions.”
We have thus seen that any individual might become the founder of a town.
A further regulation was made, authorizing the heads of families to unite and form a pueblo on the same conditions. It is law ten of the same book and title, as follows: "Whenever particular individuals shall unite for the purpose of forming new settlements, and among them there shall be a sufficient number of married men for that purpose, license may be granted to them, provided there be not less than ten married men, together with an extent of territory proportioned to what is stipulated, and wo empower them to elect, annually, from among themselves, ordinary alcaldes and officers of the council.”
In all these cases, after 1538, the quantity of land dedicated or granted for the purpose of a town, was four leagues, measured from the principal square, one league in each direction, when the situation of the ground admitted of it.
Under these regulations, most of the towns were settled in Mexico, except in a few cases, when there were special grants.
In Ooahuilla and Texas, after the revolution in 1821, as it was a matter of doubt whether the Spanish regulation remained in force, a decree was passed that the new towns, settled after the revolution, should have granted to them four leagues, the same as had been previously granted to the old towns.
In addition to the formation of towns by grant to founders, and to families united voluntarily for that purpose, the Viceroys and Governors had the power to found and organize towns given by a decree of the King, Don Carlos, in 1523. It is Law 1, book 4, tit. 13, of the Laws óf the Indies, to the following effect:
“ The Viceroys and Governors, being thereto authorized, shall lay out for each town or village which shall be newly founded and peopled, the lands and lots which they may require, and the same shall be granted to them as propios, without prejudice to third parties. They shall transmit to ns information of what they shall have laid out, that we may order the same to be confirmed.”
The royal ordinance of 1754, declares: “That from the date of this, my royal order, the power of appointing sub-delegate [191]judges to sell and compromise for the lands and uncultivated parts of the said dominions, shall belong thereafter exclusively to the Viceroys and Presidents of my royal audiences of those kingdoms, (the Indies,) who shall send them their appointments or commissions, with an authentic copy of this regulation.”
The second article provides, “But in regard to lands of community, and those granted to the towns for pasturage and commons, no change shall bo made, the towns shall be maintained in the possession of them, and those that may have been seized shall be restored to them, and their extent enlarged according to the wants of the population.” 2 White, 63.
This is a clear recognition of the rights of the town to the municipal lands. In the instructions to the intendentes, 2 White, 70, dated in 1784, directing them to make grants of lands, it is said, “And as respects the royal lands, without prejudice to such commons, as by the provisions of Law No. 8, ought to belong to each town or corporation.”
It is contended by the counsel for appellant, that Law 1, of title 16, liber 7, of the Novissima Recopilación, quoted in the opinion of Cohas v. Raisin, applies only to old Spain, and not to the Indies.
If this wore true, it only shows what was the tendency of the law in the Indies, and is a mere repetition of what was repeatedly enacted for Spanish America. The decree is: “ Our will and pleasure is, that the cities, towns, and villages, shall retain their rights, revenues, and municipal domains, (propios,) and that no grants be made of them; wherefore, we command that all grants of the same, or any part thereof, which we may make to any person, be of no value whatever.”
The quotations already made from the laws of the Indies, show that the same principle was repeatedly affirmed with reference to pueblo lands in Spanish America.
A special regulation, however, was promulgated in reference to towns in California, and especially in reference to those places settled as Presidios. In 1791, Pedro de Mcrva possessed the power of Viceroy, and directed the following decree to Governor Romen :
“ In conformity with the opinion of the Assessor of the Gomandancia Generóle, I have determined, in a decree of this date, that, notwithstanding the provisions made in the eighty-first article of the Ordinance of intendentes, the Captains of the Presidios are authorized to grant and distribute house-lots and lands, to the soldiers and citizens, who may solicit them, to fix their residence on. And, considering the extent of four common leagues, measured from the centre of the Presido Square, viz.: two leagues in every direction, to be sufficient for the new Pueblos, to be formed under the protection of said Presidios, I have [192]likewise determined, in order to avoid doubts and disputes in future, that said Captains restrict themselves henceforward to the quantity of house-lots and land within the four leagues already mentioned, without exceeding in any manner said limits, leaving free and open the exclusive jurisdiction belonging to the intendentes of the Royal Hacienda respecting the sale, composition, and distribution of the remainder of the land in the respective districts.
And that this order may be punctually observed and carried into effect, you will circulate it to the Captains and Comandantes of the presidios of your province, informing me of having done so.
Chihuahua, March 22, 1791.
Pedro de Nerva.
To Señor ¡Don Joseph Antonia Romen.”
On the twenty-seventh of October, 1785, the Fiscal (Attorney-General) at Chihuahua, recommended that “ The allotting of tracts of land (sitios) for cattle, which some settlers in California claim, and the Governor proposes in his official communication of the twentieth of ¡November, 1784, cannot nor ought not to be made to them within the boundaries assigned to such pueblo, which, in conformity with the law 6, tit. 5, liber 4 of the recopilación, must be four leagues of land in a square or oblong body, according to the nature of the ground, because the petition of the new settlers would tend to make them private owners of the forests, water, timber," wood, and other advantages of the lands which may be assigned, granted, and distributed to them; and to deprive their neighbors of these benefits, it is seen at once that their claim is entirely contrary to the directions of the aforementioned laws, and the express provisions in article eight of the instructions for settlements (poblaciones) for the Californias, according to which all the waters, pastures, wood, and timber, within the limits which, in conformity to law, may lie allotted to each pueblo, must be for common advantages, etc., that all the new settlers may enjoy and partake of them, maintaining thereon their cattle, and participating of the benefits that arise.”
On the twenty-first of June, 1786, the Commandant-General transmitted this opinion to Governor Fages, and directed him to proceed to grant accordingly.
DOCUMENT IN THE UNITED STATES LAND OFFICE.
The regulations of Petic, made to apply to all towns subsequently established, ratified by a royal order of 1789, declare in Article 6th:
“ The tract of four leagues granted to the new settlement, being measured and marked out, its pastures, woods, waters, privileges, hunting, fishery, stone-quarries, fruit-trees, and other [193]privileges, shall be for the common benefit of the Spaniards and Indians residing therein, and in its suburb or village, as shall also be the pastures of the lands,” etc.
It is also well known, that throughout Spanish America it was contemplated that, after the Indians had been under the care of the Church for several years, and instructed in religion and the arts of civilization, they should be emancipated, and the mission establishments converted into pueblos. In the instructions of the Viceroy, the local government in California, date.d August 17, 1773, he says: “ As the mission settlements are hereafter to become cities, care should be taken, in their foundation, that the houses should be built in line, with wide streets and good market-squares.” The Viceroy proceeds to confer the power, and the local officers to carry out this plan. He declares: “ With the desire that population may be more speedily assured in the new establishments, I, for the present, grant the comandante power to designate common lands, and also even to make individual concessions to such Indians as may'most dedicate themselves to agriculture and the raising of cattle; for, having property of their own, the love of it will cause them to plant themselves more firmly.
In the thirteenth article of these instructions, the Viceroy expressly requires the comandante to proceed according to the laws of the Indies, above quoted, as follows: “He must act, in, every respect, in conformity with the provisions made in the collection of the laws respecting newly-acquired countries and towns, (reducciones y poblaciones,) granting them legal titles for the owner’s protection, without exacting any remuneration for it, or for the act of possession.”
The fifteenth article provides expressly that “the missions shall be converted into pueblos, with all the rights and privileges of other towns.” Article fifteenth: “ When it becomes expedient to change any mission into a pueblo, the comandante will pro-cede to reduce it to the civil and economical government, which, according to the laws, is observed in the other pueblos of this kingdom, giving it a name, and declaring, for its patron, the saint under whose auspices and honorable protection the mission was founded.”
In the “regulations for the government of the province of California, by Don Eelipe de Heve, Governor of the same, dated in the royal presidio of San Carlos de Monterey, June 1, 1779, and approved by His Majesty, in a royal order of the twenty-fourth October, 1781,” which provide for the settlement of the country, the regulation of the missions and presidios, and the formation of pueblos, the fourth article declares: “ The house-lots to be granted to the new settlers (pobladores) are to be designated by government in the situations and of the extent, corresponding to the locality on which the new pueblos are to be established, so that [194]a square and streets be formed agreeable to the provisions of the laws of the kingdom, and conformable to the same; competent common lands (exidos) shall be designated for the pueblo and pasture-grounds, with the sowing-lands that may be necessary for municipal purposes, (propios.)
The fifth article further provides: “ And of the royal lands, (realengas,) as many as may bo considered necessary shall be separated for the propios of the pueblo, and the remainder of these, as well as of the house-lots, shall be granted in the name of His Majesty, by the Governor, to those who may hereafter come to colonize.”
The eighteenth article directs the Governor for the first two years to appoint “ ordinary alcaldes and other municipal officers,” and “ for the following ones, they shall appoint some one from amongst themselves, to the municipal offices, which may have been established, which directions are to be forwarded to the Governor for his approbation.” Rockwell, 445.
The Mexican government always acted upon the idea that the missions were to be converted into pueblos, and Governor Figueroa, issued an order to that effect, as to the missions in California in 1834. Rockwell, 456.
The Republic of Mexico, after the revolution of 1824, fully recognized the rights of the towns in their commons, pastures, and municipal lands.
The second article of the Colonization Law of 1824 enacts, “ The objects of this law ai*e those national lands, which are neither private property, nor belonging to any corporation or pueblo, and can therefore be colonized.” The provision fully recognizes the fact that pueblos were the owners of land in property, which could not be the subject of grant.
It will thus be seen that under the laws of the Indies, whenever a pueblo was formed by a grant to a founder, or the union of ten or more families, or the foundation of a presidio, or the secularization of a mission, each pueblo was entitled in property to certain tracts of land within the limits of the town, to be set apart to them, called (exidos,) commons, (dehesas,) pasture-grounds, and (propios,) municipal lands, and that they were so entitled by virtue of their organization as pueblos.
The presidio of San Francisco was founded in September, one thousand seven hundred and seventy-six. At that time each pueblo was entitled to the extent of four leagues as an exterior boundary. Subsequently, in one thousand seven hundred and ninety-one, as already shown, these limits were extended to two leagues in every direction from the centre as the limit of a presidio pueblo. In October, one thousand seven hundred and seventy-six, the Mission of Dolores was founded. It has already been shown that the secularization of each mission was contemplated from its foundation, and that it was to be also converted [195]into a pueblo. This did not leave quite space enough to the presidio of San Francisco for a four-league pueblo. It is reasonable to believe that a line was early established between the presidio and the mission, and the same seems to have been substantially adopted by M. G. Vallejo, in one thousand eight hundred and thirty-four, when he established the line of the pueblo of San Francisco, as will be seen by reference to the pueblo documents on file in the United States Land Commission, and now deposited in the United States Surveyor-General’s office.
The place called punta Yerba Buena, upon which the city of San Francisco now principally stands, has been given an undue importance in the controversy. It seems never to have been a pueblo, separately from the presidio. It is within the limits of the four leagues, pertaining to the pueblo of the presidio. ¡Neither are the rights of that pueblo in any way affected by the fact that most of the population removed from the presidio post to the Yerba Buena after one thousand eight hundred and thirty-five. It was part of the same pueblo politically and in a jurisdictional point of view, being within its original limits.
The presidio always had a considerable population, from the date of its foundation until long after the Mexican revolution. In one thousand eight hundred and two, Humboldt reported the population to be nearly four hundred. Vide Senate Doc., and Jones’ Report.
It is strongly urged, in the brief of the appellants, that pueblos had no right to ■ sell or grant their common or municipal lands. It will appear from the foregoing quotations from the laws of the Indies, that they had a right to dispose of certain lands within the pueblo limits, to defray municipal expenses. The Spanish regulations devoted the property to that purpose.
It is also to be observed that the decree of the Cortes of 1813, directs the pueblo lands, or at least a portion of them, to be granted and converted to private ownership.
The Departmental Assembly of California, by a decree of September, 1835, authorized the ayuntamiento of the pueblo of San Francisco to grant lots, not exceeding one hundred varas. It is to be observed that this decree is directed to the alcalde of San Francisco, not of the pueblo of Yerba Buena, and is an authority in the place or part of the pueblo of San Francisco, named Yerba Buena. It is a legislative declaration that the pueblo had propios, (municipal lands,) and arbitrios.
This decree was a regulation of the affairs of a public corporation, as they may be regulated by legislation, both in England and in this country. The decree is as follows :
“ The most Excellent, T. Dep., in Sessions the 22 September, approved that the Ayunt’o of the pueblo may grant lots, which do not exceed 100 varas, for the building of houses in the place [196]named Yerba Buena, at the distance of 200 varas from the shore of the sea, paying to that Ayunt’o the fees which may be_designated to him, as pertaining to the propios and arbitrios, and being subject to observe the order for forming the town, in lines, in accordance with the ordinances regulating the police, which I communicate to you, that you may make it known to the inhabitants of that pueblo, in order that they may not apply with their memorials to this political government, as it is one of the favors which the Ay’to can grant.
Jos® Castro.
Monterey, Oct. 26,1835.
Directed to Señor Alcalde de San Francisco de Asis.”
It is a mistake to say that the confirmation to the city of San Francisco, by the Land Commissioners, does not proceed on the ground of a grant. The whole legal effect of the act of Congress of third March, 1851, was, as a matter of evidence, to create a presumption of grant to a town of all the vacant lands within its limits, as recognized or established on the seventh July, 1846, to such towns as were settled previous to that time.
The act declares, that “ the fact of the existence of the said city, town, or village, on the said seventh July, 1846, being duly proved, shall be prima facie evidence of a grant to such corporation, or to the individual under whom the said lot-holders claim; and where any city, town, or village, shall be in existence at the time of passing this act, the claim for the land embraced within the limits of the same, may be made by the corporate authority of the said city, town, or village.”
The majority of the commission decided that the evidence of a grant was sufficient, under the act, to authorize the presump.tion of one, according to the Vallejo line. The opinion concludes as follows: “These conclusions bring the case, in our opinion, clearly within the operation of the presumption raised in favor of a grant to the town by the fourteenth section of the act of third March, 1851, and entitle the petitioner to a confirmation to the land contained within the boundaries described in the document above-mentioned.”—[The Zamarano Document.]
Parties who contest a grant, by competent authority, within the city limits after this confirmation, which is now made final, the appeal having been dismissed by authority of the government, must rely on a sufficient title issued by competent authorities previous to the seventh of July, 1846.
If the proper officer has granted, within the acknowledged limits, his grant is prima facie valid, and conveying land which he had a right to grant.
Whether the prcrpios of a pueblo could be sold or not, at forced sale, under the Mexican law, the act of Congress of 1851, creates a new tenure, and operates a confirmation in fee to the city. [197]And especially after the adoption of the common law in 1850, the municipal and common lands of pasturage were liable to execution-sale.
It is urged that the city had no title to the property sold under the judgment, and that, therefore, the sheriff’s deed is not sufficient to authorize a recovery in ejectment. If the confirmation of the United States commissioners is to be regarded as of any value, it establishes the fact that the city had a title on the seventh of July, 1846. The decision is based entirely on that ground. But if it were otherwise, and the act of Congress of 1851 is to be treated as a grant or release of the interest of the United States to the city of San Francisco, there was title in the city, either legal or equitable, at the date of the execution-sale. The judgment of Peter Smith was recovered on the eighteenth September, 1851, after the date of the act of Congress, which was the third of March, of the same year. The property was sold by the sheriff on the thirtieth of January, and first and second of February, 1852.
After the adoption of the common law in 1850, it cannot admit of reasonable doubt that the town-lots of the city held for grant, could be siezed and sold on execution to satisfy judgments against the city.
It must also be borne in mind that in 1851, the Legislature expressly authorized the city authorities of San Francisco to alienate the lands and vacant lots belonging to the city.
It must be apparent that the act of Congress of the third of March, 1851, would enure to the benefit of alcalde grants made by the proper authorities, subsequent to the seventh July, 1846.
These grants were sales; and it is well settled in the civil law in force in California, until the adoption of the common law by the Legislature of 1850, that a subsequently acquired title will enure to the benefit of the prior vendees of the city.
“Although the sale of another’s property be null, yet the subsequent acquisition of the title by the vendor vests it at once in the vendee, who cannot afterwards sue for a recision of the sale.”
2 Hen. La. Dig., p. 1380; 12 M., 187; ib., 649; 5 N. S., 247; 9 La., 99; 12 ib., 170; 5 An., 532.
There does not seem to be any ground for doubting that the Pueblo of San Francisco had pueblo lands previous to the seventh July, 1846, which the ayuntiamento at one time and the alcaldes at another might grant. At the time of the change of government the alcaldes had the power to grant fifty-vara lots within the pueblo. In respect of the municipal laws so granted, the alcalde acted as the officer of the corporation, upon whom authority for that purpose had been conferred by the government and Departmental Assembly. It is a misnomer to call these titles American alcalde grants. They were the grants of the pueblo of its own property, which it had a right to transfer, by virtue [198]of the municipal law, which was continued in force by the new sovereign until 1850. As to all grants made by the alcaldes, it must be presumed that they were of municipal lands which these officers had a right to grant, until the contrary is shown.
It is urged that the fees of the ungrantexl lots within the city remained in the Mexican government, because the municipal and common lands were never actually assigned to the pueblo by a survey or judicial possession made by competent officers.
The practical force of this argument is not perceived. It is perhaps true that the Governors might grant within the pueblo, until the measurement was had; but under the Spanish and Mexican law, the right of the pueblo to have the municipal and common lands assigned, was an acknowledged equity. The United States succeeded to the fee charged with this equity, and are bound to respect it by the treaty with Mexico.
The act of Congress of 1851 removes all difficulty about the boundary, by acknowledging this right; and by releasing to the present city all lands vacánt and ungranted on the seventh of July, 1846, removed all difficulties on the subject. Under the decisions of the Supreme Court of the United States, this release was equivalent to a legislative grant upon which ejectment can be maintained, as well as upon the patent, which is only a ministerial act, while the other is the direct act of the sovereign, through the legislative department. See Grignon et al. v. Astor et al., 2 Howard, 319, in which the Supreme Court of the United States held that “ a title to land becomes a legal title when a claim is confirmed by Congress. Such confirmation is a higher evidence of title than a patent, because it is a direct grant of the fee, which had previously been in the United States.”
I have thus attempted to show the right of the pueblo of San Francisco to municipal lands, and that, whether the fee of the same under either the Spanish or Mexican regime remained in the supreme government or passed to the pueblo, the act of Congress of 1851 operated a conveyance of such lands to the city of San Francisco. I have attempted to demonstrate that grants made after 1846, by American alcaldes, as they are called by the learned counsel, were not void; that the municipal laws remained in force during the occupation of the country by American troops, and that the act of disposing of the private property of a municipal corporation was not political.
It is contended, however, that the decision in Woodworth v. Fulton was sustained by this Court, in the subsequent cases of Clarkson and Yanderslyce v. Hanks and Leese, and Yallejo v. Clark. In the first case, the question under discussion was neither raised nor argued. In the second, the right of the pueblo to lands within her territorial limits was not relied on, but the case went off on the point that, conceding the power of the Governor to grant within the pueblo limits, the grant in question [199]only conveyed an inchoate title, which was insufficient to sustain an action of ejectment.
But the fact is directly the contrary. In spite of this decision, men maintained their rights by force of arms; and alcalde grants, whether made before or after the occupation of the country by Americans, were regarded as good titles to the land they purported to convey.
As a specimen of the reasoning upon the opinion of Cohas v. Raisin, it is only neessary to transcribe the following passage from the appellant’s brief:
“ The opinion commences,” says the learned counsel, “with the following quotation from the Spanish law ‘ Our will and pleasure is, that cities, towns, and villages shall retain their rights and revenues, and municipal lands, (propios,) and that no grants be made of them, and we command that all grants of the same, or any part thereof, which we make to any person, be of n'o value whatever.’
“ I would, in all seriousness, ask, what support for the doctrine sought to be sustained, can be derived from this law ? In order to be of any avail to the opinion, the reasoning must be this: It is the will and pleasure of the King, that cities, towns, and villages shall retain their rights, revenues, and municipal lands, therefore they have a right to part with them; but, says the King, it is our will and pleasure that no grants be made of such lands, therefore a grant of such lands by an American alcalde is good. Again, says the King, we command that all grants of the same, or any part thereof, which we may make to any person, be of no value whatever—consequently, says the opinion, because grants by the King are void, grants by an American alcalde are valid. I might proceed with the rest of the paragraph, in the same way, showing an unmeaning citation of authorities, upon points which were never doubted or disputed, or false deductions from such authorities, if they can be considered as having any applicability at all.”
Row, on examination of the decision of Oohas v. Raisin, it will be observed that this quotation was only introduced for the purpose of showing that towns and cities might own municipal lands, and that their right to the same was so completely vested, that even the sovereign could not dispose of them; and the inference from this, if any is to be drawn, is that the prime right of disposition of such property was in the municipal authorities, and not in the sovereign jiower of the State.
The main difficulty of the counsel seems to rest upon the supposed fact that American alcaldes could not grant the lands of the pueblo. This case does not involve the question; the plaintiff does not claim by virtue of an alcalde grant, but through a judicial sale, made after the passage of the act of Congress. [200]Were it otherwise, we have attempted to demonstrate that these grants are valid.
This new-born zeal to defend the old Californians against the usurpations of their American conquerors, is commendable, in the highest degree; but, like most after-thoughts, it comes too late. Disguise it as you will, when stripped and exposed, it is only a ruse to take from the early immigrant the products and acquisitions of his labor, for the benefit of* those who came to the State at a more recent period, or to compel the industrious and fortunate to share with the idle and improvident. In fact, it goes beyond this, to the extent of holding that those who came here before the year 1849, and particularly the original inhabitants, are disqualified from holding land altogether.
In speaking of the ease of Woodworth v. Fulton, and Cohas v. Raisin, the counsel remarks, that: “ The former case, it is true, encountered, at first, a violent, bitter, and unscrupulous hostility; but that has passed away, and ‘the sober, second thought of the people’ has reversed the respective positions which Wood-worth v. Fulton, and Cohas v. Raisin, at first occupied.”
I, at least, have seen no symptoms of a change from the day that that opinion was announced, and if I were in the habit of being governed by popular clamor, instead of what I believe to be principles of law, I would cheerfully abide the voice of the people on this question, so fully am I satisfied that there is a sufficient sense of justice and honesty in the masses to repudiate so gross an outrage upon private rights, as would be the case if Woodworth v. Fulton should be again declared the law of the land. That opinion created consternation and alarm; it unsettled the laws of property, despoiled men of their possessions, and introduced into a peaceful community disgraceful scenes of riot and bloodshed, calling down upon its authors the anathemas of the whole people. The decision of Cohas v. Raisin, was an olive branch of peace; it restored confidence in landed property, gave security to business operations, and quieted the angry passions of those who imagined, not without cause, that they had been improperly stripped of their property.
The question now remains to be determined, whether, admitting the case of Woodworth v. Fulton was law, this Court should adopt it, and abandon the case of Cohas v. Raisin.
As has been previously remarked, Courts are not justified in overruling their former decisions, and unsettling established principles, simply because error may have intervened. A wise and prudent Judge will always examine the consequences which must result from the change, and the effect it will have upon the community, and unless the inconveniences arising from the error greatly outweigh the advantages which would result from an adherence to the rule, the decision will be permitted to stand
[201]I have stated what is a part of the history of this State, that the decision of Woodworth v. Fulton was never acquiesced in either by the bar or the public; that it was subsequently overruled, and that, since that time, the case of Cohas v. Raisin has been often affirmed by this Court. (See Leonard v. Darlington, and Dewey v. Lambier.) The whole community has acted upon the faith of these decisions, and it has probably never entered the brain of any sane man, except, perhaps, that of the appellant, that the rule thus firmly established would be overturned.'
The practical consequences of such a change would be, conceding the appellant’s position, that no title has passed out of the city since its occupation by American' troops, and that every title made since that time is void. That when the city acquires the title to said lands, she may dispose of them for her own benefit, leaving those who have bought and improved in good faith without remedy. It goes further; if the city has any title by virtue of the act of Congress, and can by her charter make a voluntary disposition of her lands, then all such lands are relinquished by virtue of the so-called “Van Hess ordinance,” to those in actual possession, without regard to rights of third parties.
The consequences of such a rule would be to destroy every title in the city, with the exception of the few that were made anterior to 1846, and to drive the present owners to seek relief from the city authorities. And for whose benefit, let it be asked, is this Court requested to perpetuate so foul a wrong ? For the benefit of those, for the most part, who set up no right to the land, except so far as may be derived through the divine right of squatting, or appropriating their neighbor’s property!
A brief reference to the history of the country, will serve to explain the pretended equities of those who are so loud in their denunciations of the decision in Cohas v. Raisin. In 1848, ’49, the immigration which was drawn to California was composed, principally, of those who were anxious to better their fortunes by labor in the mines. Land was of little or no value, and passed, by the mere delivery of possession. Soon, the wants and necessities of trade began to require fixed places of business. San Francisco, at that time the commercial metropolis of the State, was supposed to be the owner of certain municipal lands. This was the opinion of its oldest inhabitants. The right to dispose of these lands was supposed to be vested in its municipal officers. This right was conceded and recognized by common consent. Access to the laws regulating the subject, was at that time impossible, but relying upon the traditions of its oldest inhabitants, the people elected officers, who undertook to dispose of the public property, for the common benefit. The land was laid out into lots, which were disposed of at public and private sale. These sales were confirmed by the old municipal govern-[202]meat, and their validity has never been questioned by the city of San Francisco since it was incorporated by the Legislature. On the other hand, for a period of nearly seven years, she has not only slept on her rights, but by various acts has indirectly recognized those sales, and though it may be admitted that a portion of the proceeds was improvidently squandered, yet by far the greatest part went into the general fund, and was spent in maintaining hospitals, police, the improvements of streets, and for various other municipal purposes. Under this system, the people of San Francisco ministered to the wants of the sick and needy immigrant, who was cast upon their shores; they maintained the law, preserved peace, protected life and property, and laid the substantial foundations of a great city, which is yet destined to rival the marts of the old world. Are those who thus purchased in good faith, and for a valuable consideration, to be denied their property, because some one with full knowledge of all the facts may choose to settle upon it, and deny the authority of an American alcalde to grant the same ?
The city of Sacramento is another fit illustration of this doctrine. Sutter’s grant was known both in the United States and Europe before the discovery of gold. The immigrant of 1849 found him in the possession of the land on which the city of Sacramento now stands, claiming the same by title from the Mexican government. Moth withstanding this, they suddenly ascertain that the Mexican government had no right to grant so large a tract of land, and if it had, that New Helvetia is not within its limits, and, therefore, they set themselves to work to dispossess him, and claim to be bona fide settlers on the public lands. If Sutter or his grantees should recover, after years of litigation, they claim the value of the improvements which they pretend to have put upon the land without notice, when the knowledge of his claim was a part of the history of the country.
Those who have settled in good faith upon lands, believing them to belong to the United States, without notice of an adverse title, ought to be protected; in fact, are protected by the rules of law and equity. Such men are entitled to the sympathy of the community and the consideration of the Courts. But those who, knowing a party’s title and possession, attempt to determine its validity for themselves, and enter without regard to other’s rights, are entitled to no consideration whatever. It is a misnomer to call them settlers.
Judgment affirmed.
Concurrence — Terry
Terry, J. I concur in the judgment of affirmance in this case, for the reason that the principles involved in the case of Cohas v. Raisin, have been the rule of decision in this State for four 'years; that large investments have been made, and valuaable interests acquired upon the faith of that decision, and the [203]effect of overruling it at this time would be to unsettle the title to a large portion of the most valuable real property in the State, and thus open the door to endless disputes and litigation. I think, therefore, that the opinion in that case should be regarded as a final settlement of the questions passed upon.
It is urged by appellant that the same reasons existed for applying the rule of stare decisis to the case of Woodworth v. Fulton, which was overruled by Cohas v. Raisin, and that inasmuch as this Court has, in that and some other instances, departed from the rule, we should now proceed to determine the questions raised by the record in this case, as tjiough they were presented for the first time.
To this proposition I cannot assent. I think in all eases of this nature, involving questions affecting the title to real estate, it is better that a uniform rule of decision should be established and adhered to; that the law of property should not be made to vary so as to conform to the individual opinions of each succeeding Judge or Court, nor the tenure of lands to depend upon the result of popular elections. Whatever views I may entertain as to the correctness of the conflicting opinions in Woodworth v. Fulton, and Cohas v. Raisin, considerations of public policy and justice, as well as regard for individual rights acquired under the law as announced by the highest judicial tribunal, imperatively demand of us a strict adherence to the doctrines of the latter case.
Concurrence — Burnett
Burnett, J. I concur in affirming the judgment of the Court below on two grounds: First, That the title to the property in question, vested in the city of San Francisco by virtue of the act of Congress. Second, That the title of the city to the under the sheriff’s sale.
Neither of these grounds are discussed by the learned counsel of defendant. And as to the questions decided in the two eases of Woodworth v. Fulton, and Cohas v. Raisin, they are not necessarily involved in this ease, and I express no opinion in respect to them.
AI Brief
AI-generated · verify before citing
Holding. The court held that the city of San Francisco, as a successor to a Mexican pueblo, possessed municipal lands in fee that were subject to execution sale, and that tenants-in-common may sue separately for the recovery of real estate. Furthermore, the court affirmed the validity of the sheriff's sale and the title deraigned through the city.
Issues
Whether a writ of venditioni exponas is valid when the sheriff unnecessarily levies on property already under execution.
Whether tenants-in-common must sue jointly or may sue separately for the recovery of real estate.
Whether the city of San Francisco held municipal lands in fee subject to execution sale under Mexican law and the Act of 1851.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We have repeatedly held, that tenants-in-common must sue separately, for the recovery of real estate, and we know of no rule which would compel a party to divest himself of, or alter his estate, for the purpose of asserting his title thereto.”