Leviston v.Ryan

Hayne, C. —Ejectment. The plaintiff claims through a patent from the state of California, issued under the act of 1862, and amendatory acts in relation to agricultural colleges. The defense is, that the patent is void. The court below gave judgment for the defendant, and the plaintiff appeals. Two points are made by the defendant in support of the judgment.

1. It is said that the tract in controversy is part of the four leagues confirmed to the city and county of San Francisco as successor of the pueblo. If this were true there could be no doubt but that the plaintiff’s patent is void. But there is nothing in the findings or the evidence to show that it is true. The finding is, that “ it is impossible to determine whether or not the lands in controversy are within the limits of the lands so confirmed to the city and county of San Francisco.”

It may be remarked in this connection that we see nothing impossible in the determination of the question. There is no question of fact which is material to the decision of a cause—that is to say, which the law requires to be decided—which cannot be settled by proof or presumption. The machinery of a court must be supposed to be equal to any demand which the law permits to be made upon it. The law does not require impossibilities. In the present instance the description in the decree of confirmation is clear, and it was a mere question of applying it to the ground. If sufficient evidence to satisfy the mind of the court was not produced by the parties, it should have found the fact against the party on whom was the burden of proof (Speegle v. Léese, 51 Cal. 415), and the burden in this case was upon the defendant. It was not required to make an official survey, but simply to decide, as between the parties before it, whether the tract in controversy was within the description contained in the decr.ee of confirmation.

The facts which the court did find showed a valid patent; and this being the case, the supposed impossibil[295]ity of finding further facts showing it to be invalid was no reason for holding it to be so. In the absence of a showing that the land was part of the four leagues, we must conclude that the patent is valid unless there be some other ground upon which it can be attacked.

2. The defendant contends • that such other ground is furnished by the fact that the land was at the date of the selection within the limits of an incorporated city. It is alleged in the complaint, and not denied by the answer, that the land " is situate in the city and county of San. Francisco.” This averment of course speaks only from the time of the commencement of the action. But we know as a matter of law that the act establishing the corporate limits has not been changed since the date of the selection, and the land has certainly not moved since then. So that it must be taken as an established fact that the land was within the limits of the city and county of San Francisco at the date of its selection. This does not necessarily mean that it was a part of the four leagues. It is well known that the corporate limits extend somewhat beyond the four leagues. So that the tract might be “ in the city and county of San Francisco ” without being a part of the four leagues. And the respondent’s argument upon this point is based upon the assumption that such is the case.