Mound City Land & Water Ass'n v. Philip

McKinstry, J. Vejar, Palomares, and. Arenas obtained a grant of the “San José” rancho and the “Addition” thereto. Dalton acquired the interest of Arenas.

In 1846 certain proceedings were had before the judge of first instance, which (as claimed by appellant), resulted in a judgment of partition of the lands granted between Vejar, Palomares, and Dalton.

In 1853 Vejar and Dalton presented their petitions to the board of land commissioners for confirmation of the tracts claimed to have been set aside to them respectively by the judgment of partition, and Palomares presented his petition for the confirmation of his claim to an undivided one third part of the “San José” and “Addition.” The decree of the District Court (on appeal from the commissioners) confirmed to each of the persons named an undivided one third part of the “San José” and “Addition.” The appeal to the Supreme Court of the United States having been dismissed, and final survey of the lands made, each of the confirmees obtained a patent from the United States for an undivided one third part of the lands, the claims to which were confirmed by the decree. One of the patents was issued in December, 1875; the other January 26, 1875. This action for a partition of the lands described in the patents was commenced January 19, 1880. -

It would seem, that, in the - proceeding before him, the judge of first instance undertook to perform the task reserved to the political department of the government, to wit: the task of fixing definitely and finally the boundaries of land granted. He then divided the lands within such boundaries. His attempt to fix, for the government, the boundaries of the lands granted gave no additional force to his- alleged judgment of partition. If juridical possession had previously been given, and its effect was to confine all the rights of the parties within the limits of such juridical possession, the judge could not, pendente lite, or by his judgment, extend their rights beyond such limits. They were not owners, as tenants in common or otherwise, of any lands finally ascertained to- be part of the public domain. If juridical possession had not been given, the right of the grantees or their assigns to the temporaiy possession of all the lands, as the same appeared from the diseño and [495]grant, could not be extended beyond the exterior limits thus appearing.

Even if the survey, made under the supervision of the judge of first instance in the partition proceedings, can be treated merely as an ascertainment of the exterior boundaries as the same were laid down on the diseño, and described in the grant and petition therefor, the partition of the lands temporarily ■possessed by the grantees, or their assigns—that is to say, of • the lands which they had the right to possess in common until the lands granted should be measured by the government— . was operative only until such measurement. A decree of partition does not give a new title to the parties among whom the possession is distributed in severalty. ( Wade v. Deray, 50 Cal. 376.) Neither the judge of first instance, nor the parties in interest, could then know where, within the exterior limits, the ■ government would select the specific tract in and to which their complete title would ultimately vest. Until such selection the ■ grantees, and their successors in interest, retained, as against trespassers, a right to the possession of the whole. (Ferris v. Coover, 10 Cal. 589:) But this possession they held subject to the power of the government to segregate a specific tract, and thus to deprive them of all right beyond the limits of such tract.. Like every other judgment, the judgment of partition (if there was one), Avas binding and conclusive only with respect ■ to its subject-matter. It was the right to the temporary possession, previously held in common, Avhich was affected by the judgment. The lands beyond the boundaries Avhich the United ' States, as successor of Mexico, established, continued to be • government property until the boundaries were so established. • In the mean time the grantees occupied to the exterior limits by license of 'the government; a license which was revoked, as to lands without the final survey, when the final survey was . approved. The right of possession was not an equitable right which ripened into a legal title to the same lands upon final measurement. It was contingent and limited in time as to the lands which should be excluded by the final measurement. The judgment in partition did not and could not anticipate the action of the political power and divide in advance the lands which should subsequently be surveyed. It operated upon the