Kernan v. Griffith

California Supreme Court Jul 1, 1864Published

Before: Shafter

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Holding. The court held that a government survey conducted after the passage of the Swamp Land Act of 1850 is not conclusive evidence of the character of the land, and that the determination of whether land was 'swamp and overflowed' at the time of the grant is a question of fact for a jury.

Issues

Whether a government survey is conclusive evidence of the character of land granted to the state under the Swamp Land Act of 1850.
Whether the United States or the state can unilaterally determine the character of lands granted under the Act of 1850 through ex parte surveys.
How to resolve conflicting claims of title between a state patentee and a federal homestead entryman regarding the character of the land.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The Court instructed the jury that the character of the lands was established conclusively by the Government survey, and under that instruction the jury returned a verdict for the defendant. The question is upon the correctness of that instruction.”

“The instruction was erroneous.”

“Were the lands “ swamp and overflowed” on the 28th of September, 1850, the date of the Government grant ? And that question must always be responded to by the jury on evidence submitted to them and applicable to the question.”

Synopsis

Swamp and Overflowed Lands.—The Act of Congress of* September 28, 1S50, granting to California the swamp and overflowed lands within the State, vested in said State the absolute ownership of all of said lands then undisposed of, and the title of the State in no way depends upon the issuance of a patent to the State by the United States.

Same.—The State of California, since the 28th day of September, 1850, has had the absolute power of selling the swamp and overflowed lands within its limits.

Same.—The Government of the United States has no right to determine by an ex parte survey of its own what are and what are not swamp and overflowed lands in this State.

Evidence as to Land being Swamp or ^Overflowed,—One who claims a tract of land under a patent issued to him hy this State, convoying the same as swamp and overflowed land is not bound, in an action of ejectment brought hy him against one claiming under the Homestead Act, by a survey of the United States designating the same as high land, but may introduce evidence of the real character of the land.

Same.—The fact, whether a given tract of land is swamp or overflowed, or dry land, cannot he determined hy the separate decision of either the State or the United States, hut must be settled hy evidence given in the course of judicial proceedings.

By the Court, Shafter, J. This was an action of ejectment, brought to recover the possession of the northwest quarter of Section Number Seventeen, in Township Number Three south, Range Seven east, according to the surveys of public lands of the United States, in the County of San Joaquin.

The plaintiff claimed by title derived from John D. Winters, to whom the lands were patented by the State as swamp and overflowed lands, January 15, 1856, and who' had purchased them under the Act of April 28, 1855. This claim the plaintiff sustained, prima facie, 'at the trial, by the introduction of the patent and a series of mesne conveyances terminating in himself.

The defendant, having proved that he, on the 20th of February, 1864, duly entered the lands in question in the office of the Register of the United States Land Office for the Stock[89]ton District, under the Homestead Act of 1862, gave, in evidence, the map of the survey by the Government of the United States of the township embracing the quarter section in controversy. The survey, from which said map was prepared, was made in December, 1854, and was approved by the Surveyor-General of the United States for the State of California, June 15, 1857, sixteen months after the issuing of the patent to Winters. It appeared by the map that the quarter section in dispute was high land, and not swamp and overflowed. The Court instructed the jury that the character of the lands was established conclusively by the Government survey, and under that instruction the jury returned a verdict for the defendant. The question is upon the correctness of that instruction.

The instruction was erroneous. The title of the State to the swamp and overflowed lands within its limits, was derived from the General Government under the Act of September 28, 1850. It was held in Summers v. Dickinson, 9 Cal. 554, that upon the passage of the Act of Congress referred to, the State became the absolute owner of all the. swamp lands within her limits which had not been disposed of, and that the title of the State in no way depended upon a patent, the Act itself operating as a full and perfect conveyance in prcesenti. The Court arrived at the same conclusion in Owen v. Jackson, 9 Cal. 322, further holding, however, that a patent issued to the State under the second section of the Act, would have no operation except by way of further assurance. These decisions are not only in harmony with the language of the Act, when properly construed, but are fully sustained by the case of Foley v. Harrison, 15 How. 447, and the case of Wilcox v. Jackson, 13 Pet. 516. As late as November, 1858, Mr. Attorney-General Black, in an offlcial communication to the Secretary of the Interior, held that “ it was not necessary that a patent should issue in order to vest the title under the Act of September 28, 1850;” and in repeated instances circulars have been issued from the Department of the Interior in which the same view of the effect of the grant has been

Kernan v. Griffith

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