Knight v. United Land Association/Opinion of the Court
The case, as presented by this record, involves some very interesting questions. Ever since the decision in Polk's Lessee v. Wendal, 9 Cranch, 87, it has been the settled law of this court that a patent is void at law if the grantor state had no title to the premises embraced in it, or if the officer who issued the patent had no authority so to do, and that the want of such title or authority can be shown in an action at law. Patterson v. Winn, 11 Wheat. 380, 384; Stoddard v. Chambers, 2 How. 284, 318; Easton v. Salisbury, 21 How. 426; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112; Smelting Co. v. Kemp, 104 U.S. 636; Steel v. Refining Co., 106 U.S. 447, 453, 1 Sup. Ct. Rep. 389; Wright v. Roseberry, 121 U.S. 488, 519, 7 Sup. Ct. Rep. 985; Doolan v. Carr, 125 U.S. 618, 625, 8 Sup. Ct. Rep. 1228, and authorities there cited.

It is sought by the plaintiffs to bring this case within that rule; and it is therefore strenuously insisted that the patent for the San Francisco pueblo is void to the extent that it embraces lands below ordinary high-water mark of Mission creek as that line existed at the date of the conquest from Mexico in 1846. In order to sustain this proposition, the claim is put forth that the Stratton survey was correct, and was never legally set aside; that the Von Leicht survey, upon which the patent was issued, was wholly unauthorized in law and void; and that the premises in dispute, being excluded by the Stratton survey, and being proved by parol evidence to have been below the line of ordinary high-water mark, were never legally included in the patent, and were not included in the decree of confirmation.

It is a well-settled rule of law that the power to make and correct surveys of the public lands belongs exclusively to the political department of the government, and that the action of that department, within the scope of its authority, is unassailable in the courts except by a direct proceeding. Cragin v. Powell, 128 U.S. 691, 699, 9 Sup. Ct. Rep. 203, and cases cited. Under this rule it must be held that the action of the land department, in determining that the Von Leicht survey correctly delineated the boundaries of the pueblo grant, as established by the confirmatory decree, is binding in this court, if the department had jurisdiction and power to order that survey. It is claimed, however, and the referee so determined, that no such power or authority existed in the department, because it had been exhausted by the action of the commissioner of the general land-office in approving and confirming the Stratton survey in 1878. This contention is based upon the proposition that the secretary of the interior had no authority to set aside the order of the commissioner approving and confirming the Stratton survey, especially in view of the fact that no appeal was taken from such order, and the authorities of the city acquiesced in that survey. This proposition is unsound. If followed as a rule of law, the secretary of the interior is shorn of that supervisory power over the public lands which is vested in him by section 441 of the Revised Statutes. That section provides as follows: 'The secretary of the interior is charged with the supervision of public business relating to the following subjects: * * * Second. The public lands, including mines.' Section 453 provides: 'The commissioner of the general land-office shall perform, under the direction of the secretary of the interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all [grants] of land under the authority of the government.' Section 2478 provides: 'The commissioner of the general land-office, under the direction of the secretary of the interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title [the public lands] not otherwise specially provided for.'

The phrase, 'under the direction of the secretary of the interior,' as used in these sections of the statutes, is not meaning-less, but was intended as an expression in general terms of the power of the secretary to supervise and control the extensive operations of the land department, of which he is the head. It means that, in the important matters relating to the sale and disposition of the public domain, the surveying of private land claims and the issuing of patents thereon, and the administration of the trusts devolving upon the government, by reason of the laws of congress or under treaty stipulations respecting the public domain, the secretary of the interior is the supervising agent of the government to do justice to all claimants and preserve the rights of the people of the United States. As was said by the secretary of the interior on the application for the recall and cancellation of the patent in this pueblo case, (5 Dec. Dep. Int. 494:) 'The statutes, in placing the whole business of the department under the supervision of the secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised in the absence of statutory direction may be prescribed by such rules and regulations as the secretary may adopt. When proceedings affecting titles to lands are before the department, the power of supervision may be exercised by the secretary, whether these proceedings are called to his attention by formal notice or by appeal. It is sufficient that they are brought to his notice. The rules prescribed are designed to facilitate the department in the dispatch of business, not to defeat the supervision of the secretary. For example, if, when a patent is about to issue, the secretary should discover a fatal defect in the proceedings, or that by reason of some newly-ascertained fact the patent, if issued, would have to be annulled, and that it would be his duty to ask the attorney general to institute proceedings for its annulment, it would hardly be serioulsy contended that the secretary might not interfere and prevent the execution of the patent. He could not be obliged to sit quietly and allow a proceeding to be consummated which it would be immediately his duty to ask the attorney general to take measures to annul. It would not be a sufficent answer against the exercise of his power that no appeal had been taken to him, and therefore he was without authority in the matter.' There is authority in this court for this holding. Magwire v. Tyler, 1 Black, 195, was a case involving the right of the commissioner of the general land-office, under the act of July 4, 1836, (5 St. 107,) reorganizing that bureau, and of the secretary of the interior, under the act of March 3, 1849, (9 St. 395,) establishing that department, to take jurisdiction of surveys made in the upper Louisiana country upon confirmed Spanish titles. One of the questions presented was whether the secretary of the interior could reject such a survey and order a new one of the same claim, and issue a patent upon the second survey. By the act of March 3, 1807, the board of commissioners appointed to pass upon the merits of such claims was required to deliver to each party whose claim was confirmed a certificate that he was entitled to a patent for the tract of land designated. This certificate was to be presented to the surveyor general, who proceeded to thave the survey made and returned, with the certificate, to the recorder of land titles, whose duty it was to issue a patent certificate, which, being transmitted to the secretary of the treasury, (then the head of the land department) entitled the party to a patent. By the act of April 25, 1812, the duty of the secretary of the treasury was transferred to the commissioner of the general land-office. The act of April 18, 1814, required that accurate surveys should be made according to the description in the certificate of confirmation, and proper returns should be made to the commissioner of the certificate and survey, and all such other evidence as the commissioner might require. The court said: 'These acts show that the surveys and proceedings must be, in regard to their correctness, within the jurisdiction of the commissioner; and such has been the practice. Of necessity he must have power to adjudge the question of accuracy preliminary to the issue of a patent.'

After referring to the act of July 4, 1836, which conferred plenary powers on the commissioner to supervise all surveys of public lands, 'and also such as relate to private claims of land and the issuing of patents,' and also to the act of March 3, 1849, the third section of which vested the secretary of the interior, in matters relating to the general land-office, including the power of supervision and appeal, with the same powers that were formerly discharged by the secretary of the treasury, the court said: 'The jurisdiction to revise on the appeal was necessarily co-extensive with the powers to adjudge by the commissioner. We are therefore of the opinion that the secretary had authority to set aside Brown's survey of Labeaume's tract, order another to be made, and to issue a patent to Labeaume, throwing off Brazeau's claim.' 1 Black, 202. See, also, 8 Wall. 661.

A similar question arose in Snyder v. Sickles, 98 U.S. 203, 211, and was decided in the same way, the court going into an elaborate examination of the powers of the secretary of the interior to review the action of the commissioner of the general land-office, and reaffirming the doctrines of Magwire v. Tyler.

In Buena Vista Co. v. Railroad Co., 112 U.S. 165, 175, 5 Sup. Ct. Rep. 84, a question arose whether the decision of the commissioner of the general land-office under the act of March 5, 1872, (17 St. 37,) was intended to be final, from which no appeal would lie to the secretary of the interior. That act provides 'that the commissioner of the general land-officer is hereby authorized and required to receive and examine the selections of swamp lands in Lucas, O'Brien, Dickinson, and such other counties in the state of Iowa as formerly presented their selections to the surveyor general of the district including that state, and allow or disallow said selections and indemnity provided for according to the acts of congress in force touching the same at the time such selections were made, without prejudice to legal entries and rights of bona fide settlers under the homestead or pre-emption laws of the United States at the date of this act.' It is to be observed that there was nothing in that act expressly giving an appeal from the commissioner's decision to the secretary. But the court said: 'There is nothing in the act which alters the relation between the two officers as otherwise established, or puts the decisions of the commissioner, under that act, upon a footing different from his other decisions.

The powers and duties of the secretary of the interior were no greater under the acts under consideration in the cases to which we have referred than they are under sections 441, 453, and 2478 of the Revised Statutes. They were practically, and to all intents and purposes, the same. The general words of those sections are not supposed to particularize every minute duty devolving upon the secretary, and every special power bestowed upon him. There must be some latitude for construction. In the language of this court in the late case of Williams v. U.S., 138 U.S. 514, 524, 11 Sup. Ct. Rep. 457: 'It is obvious-it is common knowledge-that in the administration of such large and varied interests as are intrusted to the land department, matters not foreseen, equities not anticipated, and which are, therefore, not provided for by express statute, may sometimes arise; and, therefore, that the secretary of the interior is given that superintending and supervising power which will enable him, in the face of these unexpected contingencies, to do justice.' See, also, Lee v. Johnson, 116 U.S. 48, 6 Sup. Ct. Rep. 249.

It makes no difference whether the appeal is in regular form according to the established rules of the department, or whether the secretary on his own motion, knowing that injustice is about to be done by some action of the commissioner, takes up the case and disposes of it in accordance with law and justice. The secretary is the guardian of the people of United States over the public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is wasted or is disposed of to a party not entitled to it. He represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands.

Furthermore, the power of supervision and control exercised by the secretary of the interior over all matters relating to the disposition and sale of the public lands, under section 453, Rev. St., is substantially the same as his power over the bureau of pensions, under section 471. That section provides: 'The commissioner of pensions shall perform, under the direction of the secretary of the interior, such duties in the execution of the various pension and bounty laws as may be prescribed by the president.'

There is nowhere any express power given to the secretary of the interior to hear and determine appeals from the commissioner of pensions; and yet the power is exercised daily without question. And such power was expressly asserted in U.S. v. Black, 128 U.S. 40, 9 Sup. Ct. Rep. 12, and impliedly recognized in U.S. v. Raum, 135 U.S. 200, 10 Sup. Ct. Rep. 820.

The same remarks apply to the powers of the secretary of the interior, under a similarly-worded section of the Revised Statutes, (section 463,) to supervise and control the management of the bureau of Indian affairs, which powers, so far as we are advised, have never been questioned.

But even if there was any doubt of the existence of such power in the secretary of the interior, as an original proposition, still the exercise of it for so long a period,-going back to the organization of that department,-without question, ought to be considered as conclusive as to the existence of the power. Railroad Co. v. Whitney, 132 U.S. 357, 10 Sup. Ct. Rep. 112, and authorities there cited.

We conclude, on this branch of the case, that the secretary of the interior had ample power to set aside the Stratton survey, and order a new survey by Von Leicht; and that his action in such matter is unassailable in the courts in a collateral proceeding. The Von Leicht survey, therefore, must be held as a correct survey of the pueblo claim as confirmed by the circuit court. Moreover, the method of running the shore line of the Bay of San Francisco, adopted by the Von Leicht survey, was approved by the circuit court itself in Tripp v. Spring, 5 Sawy. 209; and on this point we entertain no doubt.

The only remaining question in the case, as we understand it, and as we desire to consider it, may be thus stated: Admitting that the Von Leicht survey is correct, and follows the decree of confirmation; admitting, also, that the patent followed the survey and the decree, and that the premises in dispute are embraced in the patent,-was parol evidence admissible to show that these premises were below the ordinary high-water mark, not of the Bay of San Francisco, but of Mission creek, a navigable arm of the bay, as that line existed at the date of the conquest from Mexico in 1846? The contention on this branch of the case is that, if all these admissions be taken as true, yet the land in dispute never was a portion of the pueblo of San Francisco, because, at the date of the conquest, it was below the ordinary high-water mark of Mission creek, and, therefore, upon the admission of California into the Union in 1850, passed to the state in virtue of its sovereignty over tide-lands.

To this contention we cannot give our assent; and in the view which we take of the question we think there was error in admitting evidence to show that the land was below high-water mark of the creek, and that the supreme court erred in sustaining this ruling. For this and other reasons hereinbefore stated the judgment should have been for the defendant.

It is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide-waters in the original states were reserved to the several states, and that the new states since admitted have the same rights, sovereignty, and jurisdiction in that behalf as the original states possess within their respective borders. Martin v. Waddell, 16 Pet. 367, 410; Pollard v. Hagan, 3 How. 212, 229; Goodtitle v. Kibbe, 9 How. 471, 478; Mumford v. Wardwell, 6 Wall. 423, 436; Weber v. Commissioners, 18 Wall. 57, 65. Upon the acquisition of the territory from Mexico the United States acquired the title to tide-lands equally with the title to upland; but with respect to the former they held it only in trust for the future states that might be erected out of such territory. Authorities last cited. But this doctrine does not apply to lands that had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition in some other way, (San Francisco v. Le Roy, 138 U.S. 656, 11 Sup. Ct. Rep. 364;) for it is equally well settled that when the United States acquired California from Mexico by the treaty of Guadalupe Hidalgo, (9 St. 922,) they were bound, under the eighth article of that treaty, to protect all rights of property in that territory emanating from the Mexican government previous to the treaty. Teschemacher v. Thompson, 18 Cal. 11; Beard v. Federy, 3 Wall. 478.

Irrespective of any such provision in the treaty, the obligations resting upon the United States, in this respect, under the principles of international law, would have been the same. Soulard v. U.S., 4 Pet. 511; U.S. v. Percheman, 7 Pet. 51, 87; Strother v. Lucas, 12 Pet. 410, 436; U.S. v. Repentigny, 5 Wall. 211, 260.

These observations lead directly to the determination of the force and effect of the title of the pueblo of San Francisco, derived from the former government of Mexico, as opposed to the title which it is insisted passed to the state of California upon its admission into the Union by virtue of its sovereignty over all tide-lands in the state below the high-water line, even including such as are situated within the limits of the pueblo.

If we have succeeded in showing that the tract in dispute was part of the land claimed by the city of San Francisco as successor of the Mexican pueblo of that name; that it is within the four square leagues described in the decree of the United States circuit court for the district of California, entered May 18, 1865; that that court decided and decreed that the claim of title was valid under the laws of Mexico; that the official survey of the United States officers is correct, and followed the decree of confirmation; and that the patent of the government of the United States, following the survey and decree, embraced within its calls the property in dispute,-we think it clearly follows that the patent of the government is evidence of the title of the city under Mexican laws, and is conclusive, not only as against the government, and against all parties claiming under it by titles subsequently acquired, but also as against all parties except those who have a full and complete title acquired from Mexico, anterior in date to that confirmed by the decree of confirmation. This conclusion is fully sustained by the decisions of this court.

The case of San Francisco v. Le Roy, 138 U.S. 656, 670-672, 11 Sup. Ct. Rep. 364, is directly in point. That was a bill by Le Roy against the city of San Francisco to quiet his title to certain property within the limits of the city. The plaintiff below claimed at the trial the benefit of a deed to the land from the tide-land commissioners of the state, which purported, for a consideration of $352.80, to release to the grantee the right, title, and interest of the state of California to the premises therein described. The city relied on the patent of the govermnent, based on the confirmation of the United States circuit court for the district of California.

The court held that the title of the city rests upon the decree of the court recognizing the title to the four square leagues of land, and establishing their boundaries; and that, even if there were any tidelands within the pueblo, the power and duty of the United States under the treaty to protect the claims of the city of San Francisco as successor to the pueblo were superior to any subsequently acquired rights of California over the tide-lands. Upon the question involved the court said:

'We do not attach any importance, upon this question of reservation, to the deed of the tide-land commissioners, executed to Sullivan on the 3d of December, 1870, for the state did not at that time own any tide or marsh lands within the limits of the pueblo as finally established by the land department. All the marsh lands, so called, which the state of California ever owned, were granted to her by the act of congress of September 28, 1850, know as the 'Swamp-Land Act,' by which the swamp and overflowed lands within the limits of certain states, thereby rendered unfit for cultivation, were granted to the states, to enable them to construct the necessary levees and drains to reclaim them. 9 St. c. 84, p. 519. The interest of the pueblo in the lands within its limits goes back to the acquisition of the country, and precedes the passage of that act of congress. And that act was never intended to apply to lands held by the United States charged with any equitable claims of others, which they were bound by treaty to protect. As to tide-lands, although it may be stated as a general principle-and it was so held in Weber v. Commissioners, 18 Wall. 57, 65-that the titles acquired by the United States to lands in California undertidewaters, from Mexico, were held in trust for the future state, so that their ownership and right of disposition passed to it upon its admission into the Union, that doctrine cannot apply to such lands as had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition in some other way. When the United States acquired California it was with the duty to protect all the rights and interests which were held by the pueblo of San Francisco under Mexico. The property rights of pueblos, equally with those of individuals, were entitled to protection, and provision was made by congress in its legislation for their investigation and confirmation. Townsend v. Greeley, 5 Wall. 326, 337. The duty of the government and its power in the execution of its treaty obligations to protect the claims of all persons, natural and artificial, and, of course, of the city of San Francisco as successor to the pueblo, were superior to any subsequently-acquired rights or claims of the state of California or of individuals. The confirmation of the claim of the city necessarily took effect upon its title as it existed upon the acquisition of the country. In confirming it, the United States, through its tribunals, recognized the validity of that title at the date of the treaty,-at least, recognized the validity of the claim to the title as then existing,-and in execution of its treaty obligations no one could step in between the government of the United States and the city seeking their enforcement. It is a matter of doubt whether there were any lands within the limits of the pueblo, as defined and established by the land department, that could be considered tide-lands, which, independently of the pueblo, would vest in the state. The lands which passed to the state upon her admission to the Union were not those which were affected occasionally by the tide, but only those over which tide-water flowed so continuously as to prevent their use and occupation. To render lands tide-lands which the state by virtue of her sovereignty could claim, there must have been such continuity of the flow of tide-water over them, or such regularity of the flow within every twenty-four hours, as to render them unfit for cultivation, the grovth of grasses, or other uses to which upland IS APPLIED. BUT, EVEN IF THERE WERE SUCH lands, their eXistence could in no way affect the rights of the pueblo. Its rights were dependent upon Mexican laws; and when Mexico established those laws she was the owner of tide-lands as well as uplands, and could have placed the boundaries of her pueblos wherever she thought proper. It was for the United States to ascertain those boundaries when fixing the limits of the claim of the city, and that was done after the most thorough and exhaustive examination ever given to the consideration of the boundaries of a claim of a pueblo under the Mexican government. After hearing all the testimony which could be adduced, and repeated arguments of counsel, elaborate reports were made on the subject by three secretaries of the interior. They held, and the patent follows their decision, that the boundary of the bay, which the decree of confirmation had fixed as that of ordinary high-water mark as it existed on the 7th of July, 1846, crosses the mouth of all creeks entering the bay. There was, therefore nothing in the deed of the tide-land commissioners which could by any possibility impair the right of the city to exercise the power reserved in the Van Ness ordinance over such portions of the lands conveyed to occupants under that ordinance as had been occupied or set apart for streets, squares, end public buildings of the city. Such a reservation should have been embodied in the decree in this case.'

In the case of Beard v. Federy, 3 Wall. 478, 491, the court, upon a question very similar to this in many of its aspects, followed a similar course of reasoning, from which we think the conclusion we have reached is logically decucible. In that case the court uses the following language:

'The position of the defendants is that, as against them, the patent is not evidence for any purpose; that, as between them and the plaintiff, the whole subject of title is open, precisely as though no proceedings for the confirmation had been had, and no patent for the land had been issued. Their position rests upon a misapprehension of the character and effect of a patent issued upon a confirmation of a claim to land under the laws of Spain and Mexico. In the first place, the patent is a deed of the United States. As a deed its operation is that of a quit-claim, or rather a conveyance of such interest as the United States possessed in the land, and it takes effect by relation at the time when proceedings were instituted by the filing of the petition before the board of land commissioners. In the second place, the patent is a record of the action of the government upon the title of the claimant as it existed upon the acquisition of the country. Such acquisition did not affect the rights of the inhabitants to their property. They retained all such rights, and were entitled by the law of nations to protection in them to the same extent as under the former government. The treaty of cession also stipulated for such protection. The obligation to which the United States thus succeeded was, of course, political in its character, and to be discharged in such manner, and on such terms, as they might judge expedient. By the act of March 3, 1851, they have declared the manner and the terms on which they will discharge this obligation. They have there established a special tribunal, before which all claims to land are to be investigated; required evidence to be presented respecting the claims; appointed law officers to appear and contest them on behalf of the government; authorized appeals from the decisions of the tribunal, first to the district and then to the supreme court; and designated officers to survey and neasure off the land when the validity of the claims is finally determined. When informed, by the action of its tribunal and officers, that a claim asserted is valid, and entitled to recognition, the government acts, and issues its patent to the claimant. This instrument is, therefore, record evidence of the action of the government upon the title of the claimant. By it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government, this record, so long as it remains unvacated, is conclusive; and it is equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie. If parties asserting interests in lands acquired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit for his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United States in the location the same, the patent would fail to be, as it was intended it should be, an instrument of quiet and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and, if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rest would be open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid, or was not properly located, and, therefore, he could not be disturbed by the patentee. No construction which will lead to such results can be given to the fifteenth section, [meaning the fifteenth section of the act of 1851, for the purpose of ascertaining and settling private land claims in California.] The term 'third persons,' as there used, does not embrace all persons other than the United States and the claimants, but only those who hold superior title, such as will enable them to resist successfully any action of the government in disposing of the property.'

Judgment reversed and cause remanded, with directions for further proceedings in conformity with this opinion.

The CHIEF JUSTICE, Mr. Justice BRADLEY, and Mr. Justice GRAY did not hear the argument or participate in the decision of this case.

Notes