Anzar v. Miller

Temple, C. — Defendants appeal from the judgment and an order refusing a new trial.

This action is brought under sections 738 and 380 of the Code of Civil Procedure to try title to and recover possession of 28.41 acres of land in the county of San Benito.

The plaintiff derives title under a patent from the United States in confirmation of a grant made by a prefect to Mariano Castro, May 19, 1839. The defendant claimed under a grant to one José Modesto, an Indian, dated- March 23, 1843. Judicial possession was given to Modesto, March 28, 1843.

Defendants also plead the statute of limitations. The claim of Modesto was never presented to the United States board of land commissioners for confirmation. On the trial the defendants relied upon the grant to Modesto and the judicial possession as a perfect grant, not forfeited by non-presentation; but since this appeal was taken, the supreme court of the United States, in the case of Botiller v. Dominguez, 130 U. S. 238, declared that all Mexican grants, whether perfect or not, must have been presented to the land commissioners on pain of [344]forfeiture. The only defense left is, therefore, the plea of the statute.

• In addition to their claim under Modesto, the defendants also procured a patent from the state of California, to which the lands had been listed by the United States.

Of the defendant’s possession it is sufficient to say, that since 1861 they have maintained an adverse possession of the demanded premises, sufficient in all respects to constitute a bar under the statute, if the plaintiff’s title could thus be barred prior to the issuance of the patent.

The grant to Castro was for a plat of ground one hundred varas front and two hundred varas deep, a square of one hundred varas in front of his house, “ being the spot which is occupied by his garden and the four pieces of land (suertes de tierra) which he cultivates on the Eicon de Pajaro, without detriment, however, to the Indians, who there have lands which have been granted to them.”

The Eicon de Pajaro contained about one hundred acres of land, and the evidence seems to show that Castro cultivated different portions in different years.

The grant was therefore an imperfect grant, and it has been held repeatedly that in such cases the fee was in the United States, and vested in the patentee for the first time upon the issuance of the patent. This precise question was presented in Gardiner v. Miller, 47 Cal. 570, and was there fully considered, and a conclusion reached which has since been uniformly adhered to, and we are entirely satisfied with it.