RUDOLPH STEINBACH v. JOSEPH H. MOORE et als., 30 Cal. 498

By the Court, Rhodes, J.: The plaintiff offered in evidence the petition of Ridley to Governor Alvarado, in which he solicited that there might be conceded to him in the ex-Mission of Dolores “ a ruined house by the name of Juan Prado (already deceased,) in order that he may repair it, with fifty varas to the east of said house, and four hundred varas between the house and the artilleryman Gomez and the Estero, in order to form his sowing ground,” etc.; and he also offered the concession of the Governor, by which there was conceded to the petitioner the “ house petitioned for in the new pueblo of Dolores, making use at the same time of the four hundred varas of land for cultivation.” The plaintiff admitted that the claim to the land mentioned in the petition had not been presented to the Board of United States Land Commissioners; and on that ground the defendants objected to the admission in evidence of the petition, concession and the accompanying papers, and they were excluded by the Court.

This ruling constitutes the principal ground of controversy in the case.

The counsel for the plaintiff contends that the action of the Governor as shown by the petition and accompanying papers offered in evidence amounted to “ a repartiamento—a proceeding in its nature judicial, a partition of common property— copveyed land in severalty in absolute fee to Ridley; was perfect in itself; required no further act to be done on the part of the Government; derived its existence from the right of the pueblo; did not require to be presented to the Board of Land Commissioners, and was not within their jurisdiction.” Mexican grant in pueblo.

In support of these positions the counsel has filed an elaborate brief—showing very careful research, and remarkable industry, as well as an intimate acquaintance with the law relating to the topics treated of—in order to show the origin, nature, force and effect of a repartiamento ; and for this purpose lie has traced the origin, history and nature of pueblos, and the nature and extent of their communal property, from a period anterior to the foundation of Rome, down through the laws and customs existing during the successive Governments of Spain and Mexico, to the colonization of California.

The purpose of this is to show that the grant of the Governor was only a partition of the common lands of the .pueblo, that the grantee held in severalty, by a perfect title, and under and by title derived from the pueblo, and that therefore the Court was in error in excluding the papers offered in evidence, on the ground that the claim to the land had not been presented to the Board of Land Commissioners according to the eighth

section of the Act of Congress of March 3d, 1851. The very able argument of the counsel, supported by such copious citations from the Spanish laws upon the points discussed, would, we have no doubt, have been of service to the Court in considering the case of Leese v. Clark, 18 Cal. 535 and 20 Cal. 387, as well as Brown v. San Francisco, 16 Cal. 451, and Hart v. Burnett, 15 Cal. 530 ; but it comes too late. Mr. Chief Justice Field, in delivering the opinion of the Court in Leese v.

Clark, 18 Cal. 570, says: “For these reasons we are of opinion that the Court erred in its construction of the second provision of the fourteenth section, and that the fact that the premises described in the grant of Alvarado and patent of the United States were town lots of a pueblo existing on the 7th of July, 1846, or at the date of the grant, oil the 21st of May, 1839, did not exclude the claim of the grantees from the jurisdiction of the Board, or require the presentation of their claim by the corporate authorities.

It is only where lots are held under concessions from such authorities, or belong to the pueblo, that the claim must be presented as required by the fourteenth section. Leese and Vallejo did not hold or claim under any corporation or town, but directly by grant from the Governor, and their claim is not therefore embraced by the provisions of the

section in question when that

section is properly construed. It was a claim to be presented under the eighth

section of the Act; it was so presented, and jurisdiction, in our opinion, was rightfully taken of it by the Board.” And the Court said that a similar construction had been repeatedly given both by the Board and the United States District Court; and that a denial of such jurisdiction at that day “ would lead to a disturbance of numerous titles and injuriously affect vast interests within the limits of the city.” The doctrine of that case having long before that time become rule of property, and it then being so clearly affirmed, we do not now, after the lapse of five years, feel at liberty to re-examine the,question.

Consequences still more serious must ensue if a different construction of that

section should be given ; and we are fully justified on this, if on any question, in invoking the doctrine of stare decisis. The only ground upon which he can base his claim to exemption from the operation of that clause of

section thirteen which declares thai “ all lands, the claims to which shall not have been presented to the said Commissioners within two years after the date of this Act, shall be deemed, held and considered as part of the public domain of the United States,” is to be found, if anywhere, in the fact, as alleged by him, that his title was a perfect title at the time of the cession of California, and according to the principles announced in Minium v.

Broioer, 24 Cal. 644, was not subject to the provisions of the Act of Congress, and liable to be defeated upon the failure of the claimant to present his claim to the Board of Land Commissioners. Inchoate Mexican grant.

The defendants do not controvert the principles of that case, nor does the plaintiff deny the authority of the numerous cases, both in the Supreme Court of the United States and of this State, holding that claims to land depending upon imperfect titles, must be presented to the Board of Land Commissioners for confirmation, according to the provisions of the Act of Congress, under the penalty, in case of failure, of having the land “ deemed, held and considered as part of the public domain of the United States.” It is unnecessary to discuss here the questions considered in Minturn v.

Brower, or to define a perfect title derived from the Spanish or Mexican Government j and it will be sufficient for all the purposes of the present inquiry to say, that a title derived from that source was not perfect while any further act was required on the part of the Mexican Government or that of the United States, as its successor, in order to invest the claimant with the entire legal title to, and the absolute possession of, the specific lands granted.

The land granted is described in the grant only by reference to the petition, and it is therein described as “ four hundred varas between the house (the ruined house in the ex-Mission of Dolores,) and the artilleryman Gomez, and the Estero.” The words “ four hundred varas ” are understood to mean four hundred varas square, unless they are controlled by other portions of the description requiring a different form for the land granted, and such is the usual construction of similar words when found in Mexican grants.

It does not appear from the documents offered by the plaintiff, by any reasonable construction, that the ruined house mentioned, the house of Gomez, and the Estero, constituted the boundaries of the four hundred varas intended to be granted, whether the same was taken in a square, or, indeed, in any other form. The two houses might become points in boundary lines, but were not of themselves boundary- lines.

A survey, or a juridical possession made or given by competent authority, was requisite in order to attach the grant to any specific tract of land—to segregate the particular parcel intended to be granted. (Strother v. Lucas, 12 Pet. 438 ; Barry v. Gamble, 3 How. 33 McCabe v. Worthington, 16 How. 96.) While such act remains to be done, the grant is regarded as inchoate or imperfect. The same difficulty also exists in respect to the fifty vara lot. Judgment affirmed.