Confirmed Mexican Grant—Possession of till Survey.—Where, by the decree of a Court of the United States, a specific quantity of land is confirmed to a grantee, from the Mexican Nation, or to his assignee, to be selected and surveyed within the exterior boundaries of a larger tract, the confirmee, by virtue of the grant and the confirmation, is entitled, until a final survey, to recover possession of any portion of the land embraced within the exterior boundaries of the larger tract, except as against a person holding title from or the right of possession under the Government.
Partition—Parties to must have Title.—An agreement to establish a partition line between the occupants of adjoining tracts of land is of no validity and cannot be enforced unless the title to the adjoining tracts has passed from the Government and become vested in the parties by whom the agreement is made. In order to render such agreement for a partition line effectual, each party must have the title to and right to dispose of the tract claimed by him, or, in other words, they must be co-terminous proprietors.
Estoppel—What necessary to Create.—A disclaimer of title to land made to one who has no claim or right to the land to which the disclaimer applies, cannot operate as an estoppel, unless the person to whom it is made is directly influenced to act upon it, and does so act upon it that it would be a fraud upon him to permit the disclaimer to be retracted.
What Jury may Pass on.—It is error for the Court to submit to a jury the question of the legal effect of written documents offered in evidence during the trial.
By the Court, Rhodes, J. This is an action of ejectment to recover the possession of a ■ portion of the Rancho San Ramon, situated in the County of Contra Costa.
The plaintiff claims title under a grant issued by the Governor of California to Bartolo Pacheco and Mariano Castro, in 1833, and approved by the Territorial Deputation in 1834. Mariano Castro, by deed dated August 6th, 1852, recited that in 1843 he had conveyed,.and he thereby again conveyed, all his right, title, and interest in and to the said rancho to Domingo Peralta, who, in 1857, conveyed the same to John B. Watson, and Watson, in 1858, conveyed the same to the plaintiff.
Domingo Peralta having filed his petition for confirmation before the Board of United States Land Commissioners, praying for the confirmation of the title to the one undivided half of said rancho, such proceedings were had before said Board and before the District Court of the United States that a final decree was filed in said Court on the 4th day of June, 1862, finally confirming to said plaintiff (who had been substituted for said Peralta) the undivided half of said rancho, the tract confirmed being restricted to two square leagues of land, the whole rancho containing six square leagues.
The complaint alleges that the plaintiff is the owner in fee and entitled to the possession of a certain portion of the rancho, described by metes and bounds, and contains the usual allegations of ouster arid possession by the defendants.
[279]The defendants, by then answer, deny that the plaintiff is the owner or is entitled to the possession of the premises; and allege that they are the owners in fee and entitled to the possession of the premises under title derived from Inocencio, José, and Mariano Romero, who were formerly the owners thereof. And they allege, for a further defense, that before the commencement of the suit the Romeros were in possession of the premises, claiming title under a grant from the Mexican Glovernment, and that said Peralta was in possession claiming title to an adjoining rancho; that a dispute arose between the Romeros and Peralta in respect to the dividing line of the twok ranchos ; that thereupon, to terminate said dispute, the parties agreed upon and established a dividing line, and that thereby the premises in dispute were included in the rancho of the Romeros; that by mesne conveyances the defendants have succeeded to the rights of the Romeros. The pleadings are verified.
The case was tried by a jury, who returned a general verdict for the defendant, and special findings, in answer to the several interrogatories submitted to them on motion of the respective parties.
The plaintiff excepted to the general verdict, and to several of the findings on the special issues, and moved for judgment in his favor upon the special findings; and the motion having been overruled, and judgment having been entered for the defendants, the plaintiff moved for a new trial, which was denied.
The plaintiff appeals from the order denying the motion for a new trial and from the final judgment, and assigns many errors, which, however, may be reduced to a few general heads.
There is no question that the plaintiff is the owner in fee of the undivided half of the Rancho San Ramon, as confirmed by the final decree of the District Court of the United States, to the extent of two square leagues, and that by virtue of the grant under which he claims and said confirmation, he is entitled, until a final survey, to recover the possession of any portion of the whole rancho from any one, except a person claim[280]ing title or the right of possession under or through Pacheco or Castro, the grantees, or the Government.
This principle has been so fully settled by this Court by repeated decisions, and particularly in the case of Mahoney v. Van Winkle, 21 Cal. 552, that it is unnecessary to give any reason therefor; and the learned counsel of the defendants admits the correctness of the general proposition. He' insists, however, that this case falls within the exceptions to the general rule, as stated in the case last cited, viz : if the grantee, in advance of a survey, elects his quantity and location, uses it, leases it, and sells it, and by his acts or words disclaims title to the remainder, he is estopped to assert title or right of possession to any land outside of his selection prior to a survey; and he says that as Pacheco and Castro not only consented to the occupation of the sobrante by the Romeros, but agreed upon a dividing line between the rancho and the sobrante, and as both parties occupied in accordance with said dividing line, the grantees are estopped from claiming beyond the division line prior to a final survey. This brings us to the consideration of the principal question involved in the case.
The document introduced in evidence by the defendants against the objections of the plaintiff, consisting of the two petitions of the Romeros to the Governor, the first dated January, 1844, for the grant of the sobrante of the Ranchos of Moraja, Lorenzo Pacheco and Julian Wil, the other dated March, 1844, for a grant, provisionally, that they might commence sowing before the proper season should pass, with the orders for the informe and for the measurement of the land, and the two petitions to the Alcalde of San José, together with his orders respecting the same, fail to establish (as was decided by the District Court of the United States) any title in the Romeros, either perfect or inchoate, to any portion of the Rancho San Ramon as against the Government, and those documents, therefore, did not confer upon them any right of possession. No other evidence was offered by the defendants tending to show title or right of possession in them derived from the Government. The Romeros, [281]therefore, were not in a position to establish a partition line as between adjoining owners of the land.
But it is insisted by the defendants that the establishment of the division line, as testified to by the witnesses, though not sufficient as a technical partition line between co-terminous proprietors, was evidence of the selection of the location of the two square leagues by Pacheco and Castro, and that such selection of the location, accompanied by evidence of a disclaimer of the residue of the land not included within the location, amounted to an estoppel against the said grantees, and would effectually prevent a recovery of any of the lands outside of said location prior to a final survey. The estoppel claimed is of the class of equitable estoppels, which has grown up under the influence of equity in modem times, and not of the technical estoppels recognized by the old rules of the common law. An equitable estoppel is well defined by Mr. Chief Justice Field, in Biddle Boggs v. Merced Mining Company, 14 Cal. 367. He says : “ It must appear, first, the party making the admission, by Ms declarations or conduct, was apprised of the true state of Ms own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.” The estoppel relied upon by the defendants is not claimed to have affected the title, but only that it attached itself to the possession, and continued effective until the person holding the title could proceed, upon a final survey, to take possession by virtue of his title and the survey; and, in order to create one of the requisites of such estoppel, they allege that the Romeros took and held possession of the sobrante with the consent of the grantees as well as of the Government.
The consent of the grantees must be proved to have been one of the causes moving the Romeros to take possession, otherwise it could not operate so as to constitute one of the facts creating [282]the estoppel. Inocencio Romero testified., against the objection of the plaintiff, that he took possession under the order of the Governor—he evidently referring to the two petitions of the Romeros to the Governor, and the orders thereon—and the jury found as a fact, upon an interrogatory submitted to them, that the Romeros did take possession, in 1844 or 1845, by virtue of those two petitions and the orders thereon. His testimony concerning his conversation with Pacheco shows that the conversation related to the question as to whether Pacheco was willing that the Romeros should procure a grant of the sobrante, and he states that Pacheco was willing that it should be done; but there is no evidence showing that the Romeros expected to or did take possession by reason of such consent, nor that at that time there was any understanding or expectation that the Romeros would take possession before the land was granted to them by the Government.
It is contended by the defendants that the designation by Pacheco and Castro of the creek mentioned by the witnesses as their northern boundary, amounted to a location by them of their two square leagues, and a disclaimer as to the residue of the rancho—the land north of said creek—and that the disclaimer would continue operative against them and then- grantees, by way of an estoppel, until a final survey of the rancho, (not considering the boundary line as a technical partition, and not regarding the disclaimer as a consent to the defendants’ occupation of the residue so disclaimed,) and in support of this position they rely particularly upon the doctrine enunciated in the case of Mahoney v. Van Winkle, 21 Cal. 580.
The Court in that case holds that the grantee may make a selection and location of his specific quantity, “under such circumstances and accompanied with such disclaimers as to estop him from the assertion of any title or right to the possession of the remainder existing within the exterior boundaries of the general tract, until, by the action of the Government, it is determined that his claim under the grant shall be satisfied by land elsewhere selected.” Mr. Chief Justice Field, in delivering the opinion of the Court, then proceeds to discuss the [283]nature and effect of the disclaimer; and in declaring its effect upon the question of the recovery of possession, he evidently regards it as one of the facts which, taken in connection with other circumstances, may operate as an estoppel as to the residue not included within the location; for it could not be contended that a mere verbal disclaimer, be it as complete as it may, if made to one having no right or title to the lands to which the disclaimer applied, could, by its own proper force, operate as an estoppel, unless the person to whom it was made was directly influenced to rely upon it, and did act thereon in such a manner that it would be a fraud to him to permit the disclaimer to be retracted.
The decision in that case fully harmonizes, on this point, with that of Biddle Boggs v. Merced Mining Co. But, even assuming that the Court was considering the consequences of a disclaimer, taken by itself and disconnected from any other facts (except the possession of the defendants) which might, united with it, amount to an estoppel, the Court held, in that case, that the proof offered in the Court below was properly excluded, as it showed that a part only of the tenants in common of the rancho participated in the alleged disclaimer.
In the case at bar, Inocencio Romero testified that his conversation about the dividing line was with Pacheco, and not with Castro, his tenant in common; and he does not mention any conversation between him and Peralta, who succeeded Castro, and he does not pretend that any agreement was made concerning the division line, except the one mentioned as having been made in 1844, between him and Pacheco.
The testimony of Pico shows that several attempts were made by him to have the survey of the northern line of the Rancho San Ramon made, but in this he failed, when he told Romero to put himself in possession until a survey should be made; and Romero having put himself in possession, “it so remained until 1849, when a dispute arose between Romero and Peralta about the boundaries, and then a surveyor went to measure the land.” This does not indicate that a location of the rancho was made and the line dividing the rancho agreed upon, but [284]rather the contrary; and it would seem that the true solution of the matter is found in Pico’s testimony, when he states that the rodeo line of the ranch was near a creek which divides it. The defendant’s witnesses—Victor Castro, Ignacio Sibrian, and José Maria Amador—all mention the creek as the rodeo line.
If we admit that there was some evidence that Pacheco agreed to a line as a dividing line between the rancho and the sobrante sufficient for the jury to find that he had so agreed, still there is no evidence that Castro or Peralta regarded such a line as anything more that a rodeo line, a line that might or might not coincide with the true line of the rancho. Their agreement or assent to that line as the rodeo line could not operate as a disclaimer on their part as to the residue of the rancho north of the line.
The evidence in the case fails to show the existence of other facts necessary to create the estoppel, as defined in the case above cited. (Biddle Boggs v. Merced Mining Company.) Neither Pacheco, Castro, nor Peralta, could at that time point out the limits of the two square leagues that would be surveyed for the Rancho San Ramon; the Romeros had the means of acquiring the knowledge of the true state of the title to the rancho, and they evidently did know it, and there is not sufficient, if any, evidence to prove that the Romeros relied directly uqion the acts of admission of Pacheco or Castro for any purpose except to procure a grant of the sobrante; and the petitions of two of the Romeros, in 1847, to Burton, as Alcalde of San José, state that they had not then qn’ocured the possession of the lands they had petitioned for in 1844.
The view that we have thus taken of the case, renders it unnecessary to consider in detail the several errors assigned.
The Court should have given to the jury the fourth, seventh, and eighth instructions asked for by the plaintiff.
The following instructions given by the Court were erroneous, for the reasons already stated, viz: “ That from all the evidence and circumstances, the jury might find an agreement between Inocencio Romero and Mariano Castro, relating to a [285]division line between them, notwithstanding the jury might find that said Romero had positively testified in this case that he did not make any agreement with said Castro, or have any conversation with him in relation theretoalso, “that if Bartolo Pacheco or Lorenzo Pacheco agreed with the Romeros, or either of them, upon a dividing line prior to the occupation of the Romeros, and with a view to their occupation in expectation of a grant, and if Mariano Castro, while he was a part owner of the Rancho San Ramon, was informed of and acquiesced in said agreement, such an agreement was as obligatory upon him as if it had been made by him in person."
The Court also erred in submitting to the jury the fourth. interrogatory requested by the defendants, for the additional reason that it leaves the jury the determination of the legal effect of the papers referred to in the interrogatory. The seventh, eighth, ninth, and seventeenth interrogatories of the defendants were improperly submitted to the jury.
The judgment is reversed and the cause remanded for a new trial.
By Sawyer, J., concurring specially:
I concur in the opinion that the judgment should be reversed and the cause remanded.