SUMMERS v. DICKINSON et al., 9 Cal. 554

Terry, C. J., delivered the opinion of the Court—Field, J., and Burkett, J., concurring. The points taken by appellant in Ms argument, are: 1. The State, by virtue of her sovereignty, is the owner of all the public domain within her jurisdiction, and that her title to the land in question passed to plaintiff by virtue of the patent. 2. The patent is conclusive evidence of everything it purports to contain. The question as to the ownership of the public domain within the State is not pertinent to any issue raised by the record.

By the act of Congress “to enable Arkansas and other States to reclaim the overflowed lands within their limits,” passed September 28, 1850, all the swamp lands within her limits which had not before been disposed of, were granted to the State of California. Provision was made in the act for the survey of those lands, and for the issuance of a patent to the State whenever their extent and boundaries were ascertained. But the title of the State in no way depends on the patent. The act itself operated as a conveyance.

The language of the act is explicit: “the whole of those swamp and overflowed lands, etc., are hereby granted to said State;” and, immediately upon its passage, the State became the owner of the land, with absolute power of disposition. The Legislature, by the act of April, 1855, provided for a sale of these lands, and authorized the Governor to issue patents in favor of persons purchasing under the act.

In issuing patents, the Governor acted as the agent of the State, under the powers conferred by the statute; his authority extended only to such lands as were granted to the State by the act of September, 1850; and a patent issued by him, for any land not embraced in this grant, would be .void, for want of power to.convey. The ancient doctrine, as to the effect of a patent from the Sovereign does not apply to the patent under consideration.

The theory of the common law is, that the King, by virtue of his sovereignty, is the owner of all the lands within the realm, ; therefore, a grant directly from the King is conclusive evidence of title. The sovereignty of the State of California is represented by the law-making power; the property of the State can be disposed of only by act of the Legislature ; and a patent from the Governor, purporting to convey the lands of the State, can have no validity unless expressly authorized by law.

The patent offered by the plaintiff, purported to convey the land in controversy as a portion of the domain granted to the State by the act of September, 1850; and as the law presumes in favor of the acts of all public officers, it should have been admitted as prima facie evidence of title in the plaintiff, which the defendant might disprove, by showing that the land in question was not included in the act of Congress, or is within the exceptions contained in the eighteenth

section of the act of the Legislature of 1855. Judgment reversed, and cause remanded.