De Guyer v. Banning

De Haven, J. This is an action to recover possession of a tract of land known as Mormon Island, lying within the exterior boundaries of the inner bay of San Pedro. The plaintiffs claim the land in controversy as a part of the rancho San Pedro, the title to which is a Spanish grant confirmed by the United States district court on appeal thereto from the board of land commissioners appointed under the act of Congress of March 3, 1851, to ascertain and settle private land claims in this state, and a United States patent therefor dated December 18, 1858. This patent conveys the land embraced in the said rancho San Pedro as the same was surveyed by the United States surveyor-general after the confirmation of said grant, the patent referring to the survey and plat thereof for purposes of description. The survey recites that it was made in conformity to the boundaries specified in the decree of confirmation, and after giving certain named exterior boundaries, which it is contended by plaintiffs are the same as those fixed in the decree of confirmation, it proceeds as follows: Excepting, reserving, and excluding from the tract as thus surveyed that portion thereof covered by the navigable waters of the inner bay of San Pedro, and which are included within the following described lines, to wit.” The lines thus referred to as following this general description being those which mark the exterior boundaries of the inner bay of San Pedro.

The judgment of the superior court was in favor of defendant, and the plaintiffs appeal.

The whole controversy in this case grows out of the alleged difference between the boundaries of the said grant as given in the decree confirming it, and those fixed in the patent, this difference being made bj^ the exception contained in the survey above referred to.

The appellants contend, — 1. That they have title to all the land within the specific boundaries of the rancho San Pedro as fixed in the decree of confirmation, and that the exception contained in the patent and survey must be disregarded as unauthorized and void; 2. That [402]if the exception is not held to be void, that it should be construed only as embracing the navigable waters of the inner bay of San Pedro, and not all the land within the exterior boundaries of such inner bay, in which case the land sued for would not be within the exception.

1. In support of their first proposition the appellants’ insist that in surveying the rancho San Pedro no discretionary power was vested in the United States surveyor-general, and that his only authority was to make a survey which would conform to the boundaries given in the decree of confirmation, and that as bj' this exception land is excluded from the survey which was included within the boundaries of the rancho as confirmed, it is void.