Carr v. Quigley

HAYNE, C. Ejectment. The plaintiff claims through a United States patent issued to the Central Pacific Railroad Company, as successor in interest of the Western Pacific Railroad Company, under the act of July 1, 1862, and the amendatory acts. The defendant was in possession at the commencement of the action, claiming that the land was public land, and that he had complied with the pre-emption laws. .The court below gave judgment for the defendant, and the plaintiff appeals. Inasmuch as the plaintiff relies solely upon a paper title, he must recover upon the strength of that title. It is therefore immaterial whether the defendant’s pre-emption proceedings were regular or not. The question is as to the validity of the patent.

Upon the former appeal, the judgment was reversed, because the court below rejected evidence to the effect that, at the time the grant from Congress to the company took effect, the land was within the limits of a Mexican grant then sub judiee: Carr v. Quigley, 57 Cal. 395. The necessary result of this decision (although it is not stated in terms) is that, [825]if at said time the land was within the exterior limits of a Mexican grant then sub judice, the patent was void, and could be attacked collaterally. The case does not appear to have been taken to the supreme court of the United States, and consequently the decision became the law of the case, and is not now subject to review. This is a familiar rule in this state, and, as we understand, it prevails in the federal court: Ex parte Sibbald, 12 Pet. 491, 9 L. Ed. 1169; Bridge Co. v. Stewart, 3 How. (U. S.) 413, 11 L. Ed. 658.

The record before us recites that, upon the retrial in the court below, the defendant “proved by testimony and established,” among other things, that the Mexican government, in 1839, granted to Jose Noriega and Robert Livermore a tract of land known as “Las Pocitas,” and described as follows, viz.: ‘ ‘ Bounded on the north by the Lomas de las Cuevas; • on the east by the Sierra de Buenos Ayres; on the south by the dividing line of the establishment of San Jose, and on the west by the rancho of Don Jose Dolores Pacheco; containing in all two square leagues, a little more or less, provided that quantity be contained within the said boundaries; and, if less than that quantity be found to be contained therein, then that less quantity, and all of said described tract of land.” This grant was confirmed by the same description by the board of land commissioners on February 14, 1854, and by the United States district court on February 18, 1859. Among the things which defendant ‘' proved by testimony and established ’ ’ was that the tract in controversy was ‘1 within the boundaries designated and set forth in the said decree of the board of land commissioners and the United States district court.” And this was expressly stipulated on the motion for new trial. Was this grant sub judice at the time of the location of the line of the road, viz., on April 16, 1868 ? The decree of the district court was affirmed by the supreme court in 1861, the mandate being filed in the lower court in October, 1865. In that year a “final” survey was made by one Dyer, a deputy in the office of the surveyor general. By this survey it would seem that nearly ten leagues were included in the description above given. This survey was approved by the surveyor general in 1867, and by the commissioner of the land office in 1868, but was set aside by the Secretary of the Interior on July 30, 1868, on the ground that it included a