Scott v. Dyer

Department No. 1, McKinstry, J.: The plaintiff claims title to the lands described in the complaint under a grant of the same made by T. M. Leavenworth, Alcalde of the Pueblo of San Francisco, to one A. C. Harris, on the 22nd day of September, 1848, which was in the usual form of alcalde grants, and made in compliance with the then customary formalities.

The question of the validity of such a grant, and that it conferred the right to the possession upon the grantee, cannot be reconsidered by this Court.

The 7th day of July, 1846, has been recognized by the Courts and by the Congress of the United States, as the date when the authority of the Mexican departmental officials terminated in Calitornia. But in Cohas v. Raisin, (3 Cal.) 448, it was held that a grant, or a town lot, made by an “ American Alcalde,” in 1847, conveyed a title to the grantee; and the Supreme Court said: “ A grant of a lot in San Francisco, made by an Alcalde, whether a Mexican or of any other nation, raises the presumption that the Alcalde was a properly qualified officer; that he had authority to make the grant, and that the land was within the boundaries of the pueblo.” It was further said, that such grants were not of any portion of the public domain, made [433]by officers of the conquering power, but were “ grants of municipal lands, made by the regularly authorized municipal authorities, under the laws, usages and customs of the country, which were not interfered with by the military or de facto government,” etc. It is, indeed true, that the particular grant there present, was a grant made before the treaty of peace; but there is nothing in the reasoning of the Court in Cohas v. Raisin, which would suggest that a different rule could be applied to a grant made after the actual overthrow of the Mexican authority, whether made before or after the treaty was signed and ratified. The Court, in their opinion, add: “ The fact that this right (of granting lots) was exercised by the municipality, in its different forms, from 1835 to 1850, without question or restriction, would prove the usage and custom in the absence of the law.” If it should be admitted, as suggested—and we find it unnecessary to admit it—that the decision in Cohas v. Raisin would be justified only by reason of the disturbed condition of land titles and threatened breaches of the peace, that very fact should induce us, after this lapse of time, to stand by the judicial solution of the question involved as res adjudícala.

' The grant considered in Dewey v. Lambier, (7 Cal. 347) was made by the officer who executed that under which the present plaintiff deraigns title, and was issued nearly two months later. In Dewey v. Lambier, the Court said: “ In the examination of this case we have observed the same line of defense, substantially, as that made in the case of Cohas v. Raisin ; and, lest it might be supposed that there is some disposition on the part of this Court to question that decision, we take this occasion to approbate the same, and to announce our determination of adhering to it.”