Carr v. Quigley (1889) · DecisionDepot

Carr v. Quigley

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court May 1, 1889 No. No. 9531Published

Before: Beatty, Paterson, Thornton

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Holding. The court affirmed the judgment and order of the lower court, holding that the issues presented were settled by prior decisions of the United States Supreme Court and the California Supreme Court regarding the Las Pocitas Mexican grant.

Issues

Whether the issues presented regarding the Las Pocitas Mexican grant were settled by prior judicial decisions.
Whether the Las Pocitas grant should be classified as a 'float' grant under federal law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We regard the contention of appellant, Carr, in this case as settled by the decision of the supreme court of the United States in Doolan v. Carr, 125 U. S. 618”

“In our judgment, there is no error in the record, and the judgment and order must be affirmed.”

Synopsis

Public Lands—Railroad Grant—Mexican Grant—Validity oe Patent. — A patent issued to the Central Pacific Railroad Company, as the successor in interest of the Western Pacific Railroad Company, under the acts of July 1, 1862, and July 2, 1864, for land within the exterior limits of a Mexican grant which was sub judice when the lands included in the railroad grant were withdrawn from entry and sale, is void as to such land, it being a “government reservation” within the meaning of the act of 1864.

Opinion — Thornton

Thornton, J. We regard the contention of appellant, Carr, in this case as settled by the decision of the supreme court of the United States in Doolan v. Carr, 125 U. S. 618, and by the decisions of this court made prior to the judgment in Doolan v. Carr, viz., Carr v. Quigley, 57 Cal. 394, and McLaughlin v. Heid, 63 Cal. 208.)

[132]The same points were presented in Doolan v. Carr that are presented in this case, and with reference to the same Mexican grant of Las Pocitas. The only difference is, that in Doolan v. Carr the points arose and were presented on an offer of testimony, and here they arise on the proof of the facts, which Doolan offered to prove in his suit against Carr.

In our judgment, there is no error in the record, and the judgment and order must be affirmed.

So ordered.

Sharpstein, J., McFarland, J., and Works, J., concurred.

Concurrence — Beatty

Beatty, C. J., concurring. I concur in the judgment of affirmance upon the sole ground that what is here decided has become, by virtue of the decision on the former appeal (57 Cal. 394), so far as this court is concerned, the law of the case.

Dissent — Paterson

Paterson, J., dissenting. Doolan v. Carr, cited by Mr. Justice Thornton, seems upon its face to be decisive of this case, and, were it not for other and more recent decisions of the national courts, I should entertain no doubt that the contention, of appellant herein had been settled by the decision in the first case above named.

In United States v. McLaughlin, 127 U. S. 428, the supreme court of the United States considered the different kinds of Mexican grants, and reviewed at length the case of Newhall v. Sanger, 92 U. S. 761, and Leavenwoorth R. R. Co. v. United States, 92 U. S. 743, upon which Doolan v. Carr was largely based. The court there held that “grants of quantity, as of one or more leagues within a larger tract, described by what are called ‘ outside boundaries,’ are floats, to be located by the consent of the government before they can attach to any specific land, like the land warrants of the United States; and that in the case of floating grants it

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The grant has always been treated as a float. It was so considered by Livermore himself, the donee. It has been so treated by the land officers, by the courts, and by all persons interested in a determination of its location and boundaries. It has never been contended by any one, as I understand it, that the grant was for all the land contained within the natural “outside boundaries” of the diseno mentioned in the grant. The land in controversy is within the outside boundaries, but is not included in the tract finally set off, patented to, and accepted by the donees named in the grant. It is therefore the same in character as that which was under consideration in United States v. McLaughlin, supra. Counsel for respondent contends that the only question before the court in United States v. McLaughlin was as to the eastern boundary line of the grant. In this I think he is mistaken. After finding that the grant did not extend east of the Jack Tone road, or the edge of the hills commencing near the same, the court said: “This result would dispose of the present case with regard to [135]nearly all the land in question; but as some of it lies west of said road in range 7, and as the railroad grant extends to the west of said road, it will be necessary to examine the other question referred to, namely, if the lands in controversy did lie within the exterior limits of the Moquelamos grant, and if the title of the railroad company did accrue whilst that grant was under consideration in the courts, did those facts prevent the railroad grant from taking effect?” And the court there decided that in the case of floating grants “it was only the quantity actually grafted which was reserved during the examination of the validity of the grant; the remainder was at the disposal of the government as part of the public domain”; that if there was left sufficient to satisfy the grant, “the railroad company would be entitled to patents for the odd sections of the remainder”; that “if the governmenl has the right to say where it [the grant] shall be located, it certainly has the right to say where it shall not be heated, and if it sells land to a third person at a place vithin the general territory of the original grant, it is equivalent to saying that the quantity due to the original grantee is not to be located there. In other words if the territory comprehended in the outside limits md bounds of a Mexican grant contains eighty leagues, .he government may dispose of seventy leagues without doing any wrong to the original grantee.”

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Synopsis

Opinion — Thornton

Concurrence — Beatty

Dissent — Paterson

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