Johnson v. Dyke

Field, C. J. delivered the opinion of the Court—Norton, J. concurring. This is an action of ejectment to recover the possession of certain premises situated in Mariposa county. The plaintiff deraigns title from Fremont, to whom a patent was issued by the United States on the nineteenth of February, 1856. The defendant relies upon an adverse possession founded upon color and claim of title, exclusive of any other right, for the period of five years previous to the commencement of the action; and contends that, under the limitar tion Act of 1855, the action is barred. That act provides that “ no action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question, within five years before the commencement of such action; provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof, under title derived from the Spanish or Mexican Govern[228]ments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the Government of the United States or its legally constituted arihorities.” (Session Laws of 1855, chap. 87, sec. 1.) The Hftent action was commenced on the twelfth of November, 1860, within the meaning of the Statute of Limitations, and the question presented is, whether this was within five years from the time of the final confirmation of the title to the premises in controversy “ by the Government of the United States or its legally constituted authorities.” The patent to Fremont was issued upon the confirmation of a grant of the former Mexican Government under the Act of Congress of March 3d, 1851. The final confirmation of the claim of Fremont under the grant was entered in the District Court of the United States, pursuant to the mandate of the Supreme Court, on the twenty-seventh of June, 1855; and the position of the respondent is that the Act of this State of 1855 commenced running from that date. We do not thus construe the Act of 1855. The final confirmation to which the Act of Congress refers is the final adjudication of the tribunals of the United States upon the validity of the title of the claimant under the Mexican grant. The survey and the patent follow such adjudication. Where the grant is of a certain quantity without specific boundaries, lying within an area of larger extent, as was the grant under which Fremont claimed, the survey is essential to give precision to the title and attach it to any particular tract. Until the survey is made and approved, the title in such case is only confirmed generally; it is not definitively confirmed to any particular premises. (Waterman v. Smith 13 Cal. 373.) The confirmation to which the Act of this State refers is the definitive confirmation. It is the recognition of the validity of the title to certain specifically described premises by the Government—that is, by the Executive Department, which formerly exercised supervision and control over the subject of the location of confirmed Mexican grants, as well as by the Judicial Department—and supposes not merely that the tribunals of the United States have finally acted, but that the subsequent survey has been made and approved. Such recognition, until the late Act of Congress vesting the supervision and control of surveys in the United States District