O'DONNELL et al. v. UNITED STATES, 91 F.2d 14

DENMAN, Circuit Judge. This case began in a bill filed by the United States for the cancellation of two patents granting certain swamp and overflowed lands in the State of California to that state, the patent from that state to one Darlington, and the successor deeds thereto, and for the quieting of the title of the United States against the successors in interest to California in the patented lands. The lands are a part of Mare Island, northwesterly of the main plant of the Mare Island Navy Yard. The District Court held for the United States, and this appeal followed.

Preceding the reasoning and extended consideration of the authorities of this opinion is a brief chronological statement of the facts and successive issues presented and our holding in each. The United States asserts it has deraigned title from one Castro, claimed grantee from the Mexican government. Also, if the Castro title is not valid, it claims title by virtue of reservations of the land for naval purposes, made after the lands were ceded to the United States by the Treaty of Guadalupe Hidalgo (9 Stat. 922).

Appellants, deraigning title from the State of California, claim Castro had no title and that the lands were granted by Congress to California prior to the attempted naval reservations. The government asserts that the evidence shows that in 1840 one Jose Victor Castro, a Mexican citizen, petitioned the then Governor of California, one Alvarado, for a grant of Mare Island, including the swamp and overflowed lands here in controversy.

The acting Governor Jimeno gave Castro a provisional permit to occupy Mare Island, and on May 2, 1841, Govern- or Alvarado executed an instrument purporting to grant to Castro Mare Island, including the land in question. No evidence of the recordation or filing of the grant in the archives of the Mexican government was ’ offered.

We hold this evidence not available to the government because in the proceeding before the Board of Land Commissioners, hereafter discussed, in which the evidence was produced, the United States violated a trust relationship to the State of California with reference to these lands, or, alternatively, because California was a third person alien to the proceeding in which-the evidence appears, and because the action there was nonadversary and presented no justiciable issue, all of which contentions are more fully considered hereafter. We hold further under Berreyesa v. U.

S., 154 U.S. 623, 14 S.Ct. 1179, 23 L.Ed. 913, and other cases later cited, that, even were these facts proved, they show no title in Castro because of the lack of filing or recordation of the grant in the Mexican archives. On July 4, 1848, California was ceded to the United States by the Treaty of Guadalupe Hidalgo. We hold this treaty transferred the lands in dispute to the United States. On September 28, 1850, by

an act of Congress, 9 Stats. 519 (see 43 U.S.C.A. §§ 982-984), the United States granted to California whatever title it had to the swamp and overflowed lands here in question. The brief of the United States concedes “that the lands in controversy were swamp and overflowed in physical character and would have been swamp and overflowed lands under the Act of September 28, 1850,” if they were public lands of the United States on that date. The patents sought to be canceled are for a'part of these swamp and overflowed lands so granted to California.

In this proceeding the patents establish the status of California and its successors in interest as- present owners of the legal title. They further establish that California, was granted, in - prsesenti, in 1850, the full equitable interest by the congressional act of that year, the United States reserving the bare legal title. This status, established by the patents, is "the given quantity in the legal problem here involved. To overcome it, the government has upon it the extraordinary burden of proof necessary to defeat the title and rights established by such a solemn instrument.

On November 6, 1850, 5 weeks after the grant to California, President Fillmore made án attempt, formally perfect, to reserve Mare Island, including the swamp and overflowed lands, “from sale.” On February 11, 1853, he again made ah attempt, formally perfect, to make of Mare Island and these swamp and overflowed lands a “reservation of public lands” authorized under

an Act of- Congress of August 31, 1852 (section 3 [10 Stat. 104]). We hold that, because of the prior grant to that state, neither reservation was effective to divest California’s then full equitable interest in the lands in dispute. On March 3, 1851 (9 Stats. 631, c. 41), Congress created a commission of three commissioners “for the purpose of ascertaining and settling private land claims in the State of California.”

Section 1. This act provided that any one claiming title to lands in California derived from a Spanish or Mexican grant must within 2 years present his claim to the commission which must render a decision on the validity' of the claim.

Section 9 provided for a review of such decision by the District Court, and

section 10 provided for an appeal to the Supreme Court. With respect to all lands, the claims to which were not presented to the commission within the 2-year period, such lands were to be considered as a part of the public domain.

Section 15 provided that the final decrees rendered, or any patent issued, under the act “shall be conclusive between the United States and the said claimants only, and shall not affect the -interests of third persons." (Italics supplied.) The act provided for service by the claimant on. the United States and for its defense against the validity of the claimed Mexican titles.

If there were such a defense, it was the duty of the United States attorney to seek a “final decree” in its favor which “shall be conclusive between the United States and the said claimants.” On August 31, 1852, the Castro claim was presented to the Land Commission by Bissell and Aspinwall, to whom it had come by mesne conveyances. On January 4, 1853, the United States purchased the interest of the claimants Bissell and Aspinwall in the Castro claim fo Mare Island, thereby merging in the United States the interests of both parties to the controversy.

The deed declared the purpose of the purchase to be to carry out the provisions of

an act of Congress to devote the property to the use of a United States navy yard. We hold that by this transaction the United States sought to acquire the Castro title for its own use, and adverse to the use and interest of the State of California, its cestui que trust. On October 10, 1854, and after it had acquired whatever title Castro had, the United States for the first time appeared in the Land Commission proceeding in the taking of a deposition.

Without advising the Commission of its personal proprietary interest in the Castro title, it proceeded to conduct a pretended controversy with Bis-sell and Aspinwall. Further depositions were taken and witnesses examined by both parties in this sham proceeding.

The United States contends that California was not a “third person” alien to this controversy within the meaning of the statute creating the commission, but contends that California and appellants here “are remote claimants under, successors to, and in privity with, the United States of America,” and hence the decree in favor of the Castro title is a decree also against California and appellants, and they “are bound by said decree.” This although at all times after its appearance it was to the proprietary interest of the United States to establish that the Mexican government granted the lands in controversy to Castro and therefore that they were not ceded to the United States by the Treaty of Guadalupe Hidalgo.

Such action of the United States was at all times adverse to California, its cestui que trust to which, in the absence of a grant to Castro, the lands were granted by the United States in 1850. On May 8, 1855, the Land Commission gave its decree against the United States, and confirming to Bissell and Aspinwall the Castro title, which they no longer owned. On February 18, 1856, the United States filed its petition for review in the District Court, where, under the act, it was entitled to a trial de novo.

The petition alleged that the Castro “claim is invalid.” On the same day, Bissell and Aspinwall, who over three years before had transferred the title to the United States, appeared and answered the petition, alleging “Their” title “to Mare Island” “Is a good and valid title” and praying an affirmance of the decree of the Land Commission. Of date March 2, 1857, a decree affirming the decision of the Land Board, prepared for the judge, appears in the record. It was never signed. The case rested in this condition for 73 years.

Appellants suggest that the reasons for this long non-action by the United States were the opinions of Attorney General Caleb Cushing, of date April 9 and October 12, 1853, later considered. These opinions were given after the United States had acquired the Castro claim, but before any testimony was taken before the Land Board.

They declare that a pretended defense against the Castro claim “probably could not affect any adverse claimant” and that California may set up, and probably maintain, title as against the United States, as to so much of Mare Island” as constitutes “uncultivatible overswamped land within its limits.” On March 18, 1857, about a fortnight after the date of the unsigned decree, the State of California gave to one David Darlington its patent to the Mare Island swamp and overflowed lands, identified as those in Survey No. 34, the lands in dispute.

In the present suit the United States seeks also the cancellation of the Darling-ton patent from California, and of all intervening conveyances to and including those to appellants. From March 18, 1857, Darlington and his successors in interest have persistently and in good faith maintained that they have held all the title to these lands which was granted to California in 1850.

Some time prior to March 6, 1928, a mandamus proceeding was brought on the relation of appellant O’Donnell against Hubert Work, then Secretary of the Interior, in the Supreme Court of the District of Columbia, to compel the Secretary to issue the patent .of the United States to appellant O'Donnell' and others for the lands in Survey No. 34. Proceedings therein were duly had and a peremptory writ issued to the Secretary to issue the patent. Appeal was taken to the Court of Appeals of the District of Columbia where the issue of the writ was affirmed. Work v. U. S. ex rel. O’Donnell, 57 App.D.C. 309, 23 F.(2d) 136.

Certiorari was not sought by the Secretary. We hold that as to the decision against the Secretary it is res judicata as to the character of the lands in question as swamp and overflowed lands to which California, if it had been granted them by the act of 1850, was entitled to patent by virtue of this identification by Survey No. 34 filed with the Secretary. On April 15, 1930, in the District Court, the case of U. S. v. Bissell and Aspinwall was reopened, and a decree nunc pro tunc of March 2, 1857, was ordered in favor of Bissell and Aspinwall.

The decree recites both the acquisition of their title by the United States and that the order directing a decree establishing the Castro title was “by consent of the United States District Attorney.” Neither the State of California, then holding the United States patent, nor any of its successors' in interest appeared or were made parties to this action, and no notice of any kind given them. So far as California and its successors are cestuis que trust of the United States, the decree of April 15, 1930, was secretly obtained.

Nevertheless the decree purports to be binding upon them, holding: “ * * * That all the right, title and interest of the Appellees herein in and to the said claim, have passed to and have been acquired by the United States, the Appellant herein, by purchase from the said Appellees, and that all persons [California and its successors] claiming by, under, or through the Appellants [the United States] or the Appellees or any of them, are chargeable with notice of this action and of everything that has been done therein, and therefore, that no rights of third persons have intervened or could intervene(Italics supplied.) We hold that California and appellants are not bound by the decree or anything done in the Bissell and Aspinwall case, whether they be regarded as cestuis que trust, claiming, as asserted in the decree, under the United States, which thus sought and procured a decision adverse to their interest, or as “third persons” alien to the litigation within the meaning of the act creating the Land Commission.

We further hold, sitting in this equitable proceeding, that, as in any such case, appellants may show by any evidence, whether within or dehors the Bissell'and Aspinwall record, the adverse interest of the United States, as trustee to that of its cestuis, California and appellants. They may thereby defeat the United States’ assertion that, because they hold their equitable interest by grant of the United States they are bound by the decree, by showing that such a contention cannot be maintained with clean hands. Michaels v. Post, 21 Wall. 398, 426, 22 L.Ed. 520.

We also hold that the decree is not binding upon appellants because it. was given in a nonadversary action in which the claimant and defendant were one, and hence no justiciable issue existed upon which adjudication could be had. The United States also contends, though not pressing it with vigor, that by the Treaty of Guadalupe Hidalgo there was a withdrawal of the swamp and overflowed lands in question because of the pendency of the invalid Castro claim. Such a withdrawal would remove the claimed area from the “public lands” category, and hence it would not pass to California by virtue of the grant of 1850.

We hold there was no such withdrawal. I. The patents to California determine the satisfaction by the patentee of the requirements of the granting act of 1850 as to identifying the land by surveys as swamp and overflowed land, of which the United States conveyed whatever title it had in 1850.

The patents sought to be declared void were given by the Secretary of the Interior to California under the compulsion of a mandate in a proceeding brought by the successors to the state title in the Supreme Court of the District of Columbia, in which litigation the Court of Appeals finally determined that the writ should issue. Work v. U. S. ex rel. O’Donnell, 57 App.D.C. 309, 23 F.(2d) 136.

The authorities we discuss infra show that the above admission of the United States as to the swamp and overflowed character of the lands described in the patent is an admission that the act of 1850 granted to California at least a full equitable and indefeasible interest in whatever property the United States then had in them.

We take it that the United States is not seeking to cancel the patents because of a mere failure of the Secretary in some ministerial duty regarding the approval of one or another survey in his files; that is to say, invoking this court, sitting in equity, to avoid temporarily what ultimately must be done. The compulsion of the mandate in the proceeding against the Secretary of the Interior required him merely to exercise his ministerial discretion. It did not prescribe the method of its exercise.

In response to the writ he exercised it with reference to a survey in his files, called Survey No. 34, upon which the descriptions in the patent are based.

His return shows the exercise of that discretion on January 10, 1925, in the following language: “From the evidence before me I am led to the conclusion that the body or strip of land known as Survey No. 34, was, at the date of the swamp-land grant of September 28, 1850, swamp in character, * * * Accordingly, it is hereby declared to be swamp land, and, as such, subject to patent to the State of California in the absence of other sufficient reasons.” Plaintiff’s Exhibit J, p. 45. Work v. U. S., 57 App.D.C. 309, 23 F.(2d) 136.

Upon this approval of Survey No. 34, so evidenced in the Secretary’s return, the writ of mandate was issued for the execution of the assailed patents. The Secretary’s determination with regard to the survey and character of the land is conclusive and may not be collaterally attacked. Cragin v. Powell, 128 U.S. 691, 699, 9 S.Ct. 203, 32 L.Ed. 566; Knight v. United Land Ass’n, 142 U.S. 161, 176, 12 S.Ct. 258, 35 L.Ed. 974; Rogers Locomotive Works v. Emigrant Co., 164 U.S. 559, 571, 17 S.Ct. 188, 41 L.Ed. 552; Gauthier v. Morrison, 232 U.S. 452, 460, 34 S.Ct. 384, 58 L.Ed. 680.

The patent reverts back to the date of the grant of 1850, and conveys as of that date, whatever legal title it then had, thus completing in law whatever had been granted in equity. French v. Fyan, 93 U.S. 169, 170, 23 L.Ed. 812, considered infra. The United States nevertheless is entitled to seek to cancel the patent on grounds that it had no title to the lands, or that before the patentee’s interest had become vested, in equity or at law, the lands had been reserved to a public use. United States ex rel. McBride v. Schurz, 102 U.S. 378, 396, 404, 26 L.Ed. 167. IT.

The heavy burden of proof on the United States in seeking to cancel its patents. In seeking to have declared void a patent from the United States, which by reverting to September 28, 1850, evidences a then grant of full legal title to the lands, the United States has a more than ordinary burden of proof.

To avoid such “solemn evidences of title emanating from the government of the United States under its official seal” requires the observance of the rule that it “cannot be done upon a .bare preponderance of evidence which leaves the issue in doubt” even more than in suits between private parties for such cancellations. Only “that class of evidence which commands respect, and that amount of it which produces conviction, shall make such an attempt successful.” United States v. Maxwell Land-Grant Co., 121 U.S. 325, 381, 382, 7 S.Ct. 1015, 1029, 30 L.Ed. 949.

This language was quoted and reaffirmed in United States v. Stinson, 197 U.S. 200, 204, 205, 25 S.Ct. 426, 49 L.Ed. 724. Also in Wright-Blodgett Co. v. U. S., 236 U.S. 397, 402, 403, 35 S.Ct. 339, 59 L.Ed. 637. As stated, the patent, until overcome by such evidence, establishes • the fee to the land in the appellants. As later shown, it also establishes the status of California as the cestui que trust of the United States, holding the full equitable title by virtue of the congressional grant of 1850; the United States, as trustee, holding the bare legal title.

This is the given quantity, to displace which this heavy burden rests on the United States. We will now consider the claim of the United States that it has shown the validity of the Castro title by evidence in the instant case, as distinguished from its claim, later considered, that its validity is established by the decree in the Bissell and Aspinwall case. III. Assuming that the Castro title could be established against the patents by new evidence in the instant case, commenced more than 65 years after the expiration of the time to file claims before the Land Board, its validity is not sustained here, because (

a) The paper writing purporting to be a certified copy of a writing in Spanish, in words of a Mexican grant to Castro, recorded in a county other than that of the location of the land, with no showing of execution of an original, and without acknowledgment, is not admissible under the California law, even though unsuccessful search for an original has been proved; (

b) Even if execution of some grant to Castro had been shown and the alleged copy offered in the course of proving the contents of an ancient document, it was not admissible because no proper search for the original was made. Herein of the decision in the Bouldin v. Phelps case ([C.C.] 30 F. 547) that the Castro grant was fraudulent and void certain ethical considerations relative to the conduct of the United States here seeking equity; (

c) Even if the execution by the Mexican government of a document in words of a grant to Castro had been shown, he did not acquire title, because the duplicate was not shown to have been filed in the Mexican archives; (

d) There is no evidence of even a possessory right in or possession by Castro. Underlying all the government’s several attacks on the patents to California is its claim that one Castro, in 1841, was granted the swamp and overflowed lands by the Mexican government, which lands the United States acquired by mesne conveyance in 1853.; that is, after the grant to California in 1850. If this contention be correct, the United States did not acquire these 'lands from Mexico in the cession of area now constituting the State of California, and hence they were not granted to California by the act of 1850. (

a) The-paper writing purporting to be a certified copy of a writing in Spanish, in words of a Mexican grant to Castro, recorded in a county other than that of the location of the land, with no showing of execution of an original, and without acknowledgment, is not admissible under the California law, even though unsuccessful search for an original has been proved. Aside from the record in Bissell and Aspinwall v.

United States, which we hold, infra, cannot be considered against the California title, there is nothing in the transcript of the record of the trial below relating to a grant by ■ the Mexican authorities of the lands here in question, to which the United States claimed to have deraigned title, b.ut a copy of an unacknowledged, unsealed, and uncertified document in Spanish, shown only to have been copied in July 28, 1852, in the Book of Deeds in the office of the recorder of Sonoma, county, Cal.

The bill alleges, and it is admitted, that Mare Island is in the county of Solano, not Sonoma, the place.of the claimed recordation. Nor was it in Sonoma county oh July 28, 1852. By the Act of May 3, 1852 (Cal.Stats. 1852, p. 236), the boundaries of - Sonoma county were so changed as to exclude Mare Island from that county. This act -under the California Constitution as it then stood went into effect on the date of its approval, that is, May 3, -1852, over two month's before the recordation. People v. Clark (1851) 1 Cal. 406.

That a certified copy of a' document which is recorded in a county other than that where the land lies is' not admissible under the statutes permitting the introduction of a copy of recorded instruments, is established by all the authorities. It will suffice to refer to Virginia & West Virginia Coal Co. v. Charles (D.C.1917) 251 F. 83, 102; 22 C.J. p. 883, § 967, and cases there cited. The translation of the document shows the words of a grant from a former Governor, one Alvarado, to one Victor Castro. It purported to have been dated May 2, 1841. No original document was offered by the government.

Appellants below moved to strike it from the record, on the ground that such a document had no evidentiary value, citing Wilson v. Corbier, 13 Cal. 166. No contrary authority has been cited by the government, and in brief and argument it offers no opposition to the contention. The holding of the California Supreme Court that such a document acquires no evidentiary value under California’s provisions for recordation (Cal.Stats.1851, p. 199), and that it is not admissible as evidence of title, is clear.

The report states the issue as follows: “Ejectment for a tract of land, being a part of the Jimeno Grant, in Colusa County. Plaintiff, in designing title from Jimeno, -offered and read in evidence a copy of the grant, with translation attached. Next, he offered a book from the Recorder’s office of Colusa County, and asked to read therefrom, what purported to be a copy, in the Spanish language, of a deed from Jimeno to Larkin and Missroon, executed in 1847.

To the introduction of which defendants objected, on various grounds, but mainly that the deed, as recorded in said book, purported to be a copy; that .there was no proof of the execution of an original, and that the original did not appear to have been properly acknowledged, or proved and certified. Plaintiff then proved that he had made search for the original deed, without success. The Court ruled out the deed, and plaintiff excepted.” (Italics supplied.) Wilson v. Corbier, supra, 13 Cal. 166. The court held as follows: “The plaintiff failed to deraign title.

The deed from Jimeno to Larkin and Missroon was not proven. The deed was executed in 1847, and made a record in the office of Colton, Alcalde of Monterey. A copy in the Spanish languagé appears to be on the records of Colusa County. But we know no law which authorized the Recorder or Clerk of Colusa to record this copy so as to make it evidence, without further proof.” Wilson v. Corbier, supra, 13 Cal. 166, 167.

The document should have been excluded, for even had there been a proper search, the copy was not admissible under the California law which controls the admission of evidence in suits in the Federal courts involving title to California lands. In Olcott v. Bynum (1872) 17 Wall. (84 U.S.) 44, 21 L.Ed. 570, the matter under consideration was a land title in North Carolina, and the question was as to the admissibility in evidence of a certified copy of a deed improperly recorded. As to this question the Supreme Court said: “It is one to be determined by the lex loci rei sit».

It is to he considered solely in the light of the statutes and adjudications of North Carolina. This court must hold and administer the law upon the subject as if it were sitting as a local court of that State.” Olcott v. Bynum, supra, 17 Wall. 44, 57, 21 L.Ed. 570. This, of course, is nothing more than a particular application of the general rule that in matters pertaining to real property the law of the situs governs. In view of our holding, infra, that the record in Bissell and Aspinwall v.

United States is not competent evidence against .appellants deraigning the California title, the record here is bare of any evidence that prior to the Treaty of Guadalupe Hidalgo, Mexico ever did anything to divest itself of its title to the lands in question. They therefore became public lands of the United States upon the cession to the United States by that Treaty. (

b) Even if execution of some grant to Castro had been shown and the alleged copy offered in the course of proving the contents of an ancient document, it was not admissible because no proper search for the original was made. Herein of the decision in Bouldin v. Phelps that the Castro grant was fraudulent and void and certain pertinent ethical considerations relative to the conduct of the United States here seeking •equity.

It should be noted, in this equitable proceeding, that the Castro deed became an ..ancient document because of the passage of time during the government’s delay of •seventy-seven years in prosecuting its unified nonadversary claimant-defendant appeal in the District Court.

That is from 1857 to 1930, when, after over sixty years’ • delay before the Interior Department, and, finally, by pressure of mandate from the District Court of the District of Columbia, the United States, in 1928, was compelled to recognize the 1855 Survey No. 34 and grant its patent for the lands so surveyed, and then, for use in canceling its patent, caused the nunc pro tunc decree to be entered in the case in the California District Court.

This should be considered in connection •with the further claim of the government that by delaying for seventy-three years m taking its decree, really in favor of itself, it kept Mare Island subjudice and hence not subject to patent, while it retained its use for its Navy Yard, Also it warrants its consideration in connection with the contention, considered infra, that the United States, as trustee, can conduct a proceeding against a faked opponent, though really against itself, and then claim the benefit of the judgment as adverse to its cestui.

We pass these considerations for the purpose of fully exploring the government’s claims. Assuming that there had been proof of the execution of some kind of document to Castro, and that the claimed anciency of the copy of the writing in Spanish is available to prove the contents of an original grant, all the authorities are agreed that a thorough search for the original must be made. No such search was proved to have been made by the government in this case. In this connection it must he remembered that under the Mexican law there are two documents containing the words of a grant of land from that government.

One is the original, held by the grantee, and the other is the copy which must he deposited in the Mexican archives. The document sought to be proved is the claimed original, once in the possession of Castro, as grantee.

Proper search for this document would require, first, inquiry of Castro himself, who is not shown not to be alive; if, as is likely, he is dead, then of his representatives and heirs; failing there, search among those to whom the document might have passed as a muniment of title, including Bissell and Aspinwall, and their heirs, or the successors to their papers and documents; and, finally, in the archives of the United States itself, the claimant seeking to avail itself of this title against its cestui. There is no evidence of any such search.

There is evidence of a search, more than sixty-five years after the appeal of the Bissell and Aspinwall suit to the District Court. This search was of the Mexican archives and of the records of the Land Commission in the office of the Surveyor General for California, who, it is claimed, became their successor custodian. With regard to the search of the Mexican archives, it is obvious that this is meaningless so far as concerns the original document, if any, given to Castro. That document has no reason to be in the Mexican archives.

So far as concerns the records of the Land Commission, ■ we hold, infra, that the United States cannot avail itself of the transcripts of the evidence taken adverse to California in the Bissell and Aspinwall proceeding. There is, therefore, no evidence that the claimed lost document ever came into the possession of the Land Commission or became a part of its records. There is, therefore, no relevancy to evidence of a search of those records. However, it appears that the government was charged with knowledge of the record in Bouldin v.

Phelps (C.C.1887) 30 F. 547, in which the same court from which comes this appeal found that the claimed original Castro grant was given to it in evidence and was there held to be a fraudulent document, actually executed after Governor Alvarado had ceased to be Governor and after California had ceased to be Mexican territory. In this'proceeding in equity the District Court in the trial below should have had called to its attention the record in Bouldin v.

Phelps, supra, which shows the existence of a controversy over the same document that is here relied on, and the presence of that document in THAT record in 1887, some thirty years after the hearing before the Land Commission, concerning the title in question here. The record in the same court, involving the same Mexican title, that court properly could consider under the decisions of Lockhart v. Johnson, 181 U.S. 516, 520, 21 S.Ct. 665, 45 L.Ed. 979; Criscuolo v. Atlas Imp. Diesel Engine Co. (C.C.A.9) 84 F.(2d) 273, 275; National Fire Ins. Co. v. Thompson, 281 U.S. 331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881.

We pursue the consideration of the conduct of the United States in this case under the criterion laid down by Justice Miller. That criterion is that the evidence offered to cancel a patent of the United States must be evidence that “commands respect.” U. S. v. Maxwell Land-Grant Co., 121 U.S. 325, 381, 382, 7 S.Ct. 1015, 30 L.Ed. 949. We have seen the holding of the obvious by' the Supreme Court that the 'United States is bound to the bona tides towards its adverse citizen litigant, at least as. great as that of'-private'persons.

It is, therefore, pertinent to note that the court'below-had, in' it's records, the'case of Bouldin v. Phelps, involving the same grant to Castro; that in that case the United States District Attorney, appearing for the Commandant in charge of Mare Island, and an attorney, appearing separately for the United States itself, there sought to prove, and succeeded in proving, that the Castro claim could not defeat the title of the United States acquired by the cession of the Treaty of Guadalupe Hidalgo, because the alleged grant was fraudulently executed. Bouldin v. Phelps, supra.

Entirely apart from the question of ethics involved, is that of the effect of this purposeful shift of position as to the validity of the Castro grant, within the judicial knowledge of the court below, on the right of the government, in a court of equity, to attempt to justify a search of the record in the Bissell and Aspinwall case, for the original Castro grant, as the place where last seen, when it knew it was not last seen there. We hold that no search has been made to justify the proof of the Castro grant as an ancient document. (

e) Even if the execution by the Mexican government of a document in words of a grant to Castro had been shown, he did not acquire title, because the duplicate was not shown to have been filed in the Mexican archives. Even if we were to consider the testimony in the Bissell and Aspinwall case it shows no grant to Castro.

The Supreme Court has repeatedly held that the Republic of Mexico has not granted lands in the territory ultimately ceded to the United States unless it appears that the “grant from the Mexican government had been 'deposited and recorded in the proper public office, among the public archives of the republic.’ ” Berreyesa v. U. S., 154 U.S. 623, 14 S.Ct. 1179, 23 L.Ed. 913. That decision cites and relies on the following cases: United States v. Cambuston, 20 How. 59, 64, 15 L.Ed. 828; United States v. Castro, 24 How. 346, 349, 16 L.Ed. 659; United States v.

Knight’s Adm’r, 1 Black, 227, 251, 17 L.Ed. 76; Peralta v. U. S., 3 Wall. 434, 440, 18 L.Ed. 221. All of these sustain the proposition there laid down. If we were to seek a reason for the requirement that the grant arose from the deposit and recordation, it is suggested by the finding, in the Bouldin Case, supra, of fraud in the execution of the Castro grant by the Mexican Governor, after he had ceased to occupy the office. There are many reported cases in the federal courts upon similar charges of fraud.

Nowhere in the record of the Bissell Case is it shown that there was any deposit or recordation in the public archives of the Republic of Mexico of the claimed grant to Castro. Not only is there a failure to show a deposit in the Mexican archives, but Governor Alvarado, who claimed to have executed' a grant to Castro, testified: “Q. Was there any record of said grant kept in the archives? A. I do not remember. “Q. Was it usual to keep a record of such grants? A. There was a book in which an entry was made of such grants generally though the Secretary might forget it. * * * “Q.

Why did you not as was your usual custom first make a decree annexed to the Expedient and then make the grant on a separata piece of paper? A. Because. I was sufficiently well satisfied with what I did.” (Italics supplied.) The espediente is the recordation of the successive steps in the acquisition of title of California lands under the then prevailing Mexican law. The Supreme Court in the case of United States v.

Knight’s Adm’r, 1 Black (66 U.S.) 227, 245, 246, 17 L.Ed. 76, has described the documents necessary for recordation made in the espediente, as follows: “These several papers — that is, the petition, with the diseño annexed, the order of reference, the informé, the decree of concession, and the copy of the grant, appended together in the order mentioned — constitute a complete espediente, within the meaning of the Mexican law.” (Italics supplied.) In the record before the Board of Land Commissioners appears a full transcript of the espediente as claimed by the government.

It contains the petition, the order of reference, and the informé. It does not contain cither the original, a duplicate, or a copy of the grant to Castro. If it were admissible it would defeat the government’s contention. (

d) There is no evidence' of even a possessory right in or possession by Castro. The government claims that the Castro claim was confirmable upon the basis of the incomplete espediente plus possession. It does not claim, and cannot claim, that mere possession in the absence of some showing upon which to base a grant warrants a confirmation of title. U. S. v. Montalva De Serrano (1866) 5 Wall. (72 U.S.) 451, 18 L.Ed. 494; Miller v. Dale (1875) 92 U.S. 473, 23 L.Ed. 735; Romero v. U. S. (1863) 1 Wall. (68 U.S.) 721, 17 L.Ed. 627.

The only evidence upon which the claim of possession even colorably could be asserted is in the depositions before the Land Commission, taken after the United States had acquired whatever Castro claimed to have owned. The record containing these depositions we hold, infra, cannot be considered in evidence here, and, therefore, we hold that the government has not established any right in Castro based upon possession. Even if we were to consider this evidence, it does not show that Castro’s occupation of the Island, such as it was, was exclusive. It is entirely silent on this point.

After putting horses on the Island, Castro went away with his brother; he did not live on the Island; he did not cultivate it; he did not make a home there; he merely pastured a few horses in the care of Indian caretakers. As to the swamp and overflowed portion of Mare Island as distinguished from its upland, it is a fair inference that the horses were pastured on the 700 to 800 acres of upland and not in the swamp. That this is not a sufficient showing of possession to satisfy the standards established by the federal decisions is apparent from U. S. v.

Teschmaker (1859) 22 How. (63 U.S.) 392, 402 to 404, 16 L.Ed. 353; U. S. v. Vallejo (1859) 22 How. (63 U.S.) 416, 16 L.Ed. 359; Whitney v. U. S. (1897) 167 U.S. 529, 546, 17 S.Ct. 857, 42 L.Ed. 263; Bergere v. U. S. (1897) 168 U.S. 66, 79, 80, 18 S.Ct. 4, 42 L.Ed. 383; U. S. v. Polack (1857) 27 Fed.Cas. 580, 584, 585, No. 16,061; U. S. v. De Haro (1862) 25 Fed.Cas. 805, 807, 808, No. 14,939. Furthermore, the claimed Castro grant is of a certain place by name and without the mention or description of the boundaries.

Hence, even if the horses and the Indians indicated possession of some part of Mare Island, the occupancy of the swamp land described by Survey No. 34 must be specifically shown. Nothing of the kind is shown by the depositions in the case before the Land Commission, even if they were admissible. The leading case establishing this rule is Higuera’s Heirs v. U. S. (1864) 5 Wall. (72 U.S.) 827, 833, 834, 18 L.Ed. 469.

In that case the Supreme Court of the United States said: “Concessions or grants of land by Mexican governors were of three kinds, and in some respects the rules applicable to their construction are widely different.

They were concessions or grants by specific boundaries, where, of course, the donee is entitled to the entire tract or concession, or grants by quantity, as of one or more leagues of land situate at some designated place, or within a larger tract described by what are called out-boundaries, where the donee is entitled to the quantity specified and no more, or grants or concessions of a certain place or rancho by some particular name, either with or without specific boundaries, where the donee is entitled to the tract according to the boundaries, if boundaries are given, and if not, according to the extent and limits of the tract or rancho as shown by the proofs of settlement and possession(Italics supplied.) This rule has found repeated expression in the later decisions of the United States Supreme Court.

See, as illustrative: Alviso v. U. S. (1869) 8 Wall. (75 U.S.) 337, 339, 19 L.Ed. 305; Williams v. U. S. (1875) 92 U.S. 457, 23 L.Ed. 497; U. S. v. McLaughlin (1888) 127 U. S. 428, 448, 8 S.Ct. 1177, 32 L.Ed. 213. Not only has this rule been frequently stated (and, so far as we have been able to find, without any dissent whatsoever), but it has also been applied in a number of instances.

Thus, in the Alviso Case the grant under consideration was of a place known as “Milpitas,” as to which the Supreme Court said (8 Wall. 337, 340, 19 L.Ed. 305): “It is also a grant of a certain place by name, and as the boundaries are not given, its extent and limits must be shown by the settlement and possession of the grantee (Italics supplied.) The court went on to consider this question and, in view of conflicting evidence, upheld the judgment of the court below approving the third survey of the tract. See, also, U. S. v. Chaboya (1862) 25 Fed.Cas. 371, No. 14,769.

We therefore hold that, in so far as concerns any direct evidence of the claimed grant to Castro, offered in the instant case, there is none. We therefore proceed to the consideration of the effect on the patents of the suit and decree of the District Court in United States v. Bissell and Aspinwall. IY. The grant to California by the act of 1850 was a grant in presentí. It transferred to California the entire equitable interest in the lands, the United States thereafter holding the bare legal title.

It removed the swamp and overflow area from the “public lands.” Thereafter they were no longer lands from which could be made a presidential reservation “from sale” or “of public lands.” On November 6, 1850, 6 weeks after the grant to California, President Fillmore attempted to make a reservation of Mare Island “from sale,” as follows: “The President of the United States exempts -and reserves from sale, for public purposes, the following tracts or parcels of land in the State of California: * * * “On the eastern side of the Bay of San Pablo. “6th. Mare Island. “7th.

The land on the eastern side' of Mare Island Straits, beginning at the high hills between those Straits and the City of Benecia, about 2000 to 2500 yards from the former, and extending in a line nearly parallel to it, to a point opposite the northern extremity of Mare Island, and thence to the Straits so as to join them at a point about 800 yards north of the northermost high hills on the eastern side of the Straits.” (Italics supplied.) On February 11, 1853, a second reservation was made.

This reservation was confined by the express provision of the congressional act of August 31, 1852, to a “reservation of public lands,” the act providing that the Secretary of the Navy is “ * * * authorized and directed to select a site for a navy-yard and naval depot in the bay of San Francisco, in California, or neighboring waters, either by purchase or by reservation of public lands, as the case may be.” (Italics supplied.)

Section 3 (10 Stat. 104). It will be noted that neither the reservation “from sale” nor of “Public Lands” purports to be or is an exercise of eminent domain, by which the United States sought to deprive California of her interest in the lands. The act expressly provides for “purchase” of any outstanding interest. It is immaterial under the act whether the outstanding intérest be in California or in one holding by Mexican grant prior to the Treaty of Guadalupe Hidalgo.

On April 2, 1853, the Secretary of the Navy requested the Attorney General’s opinion as to whether under the provisions of the Act of March 3, 1853 (10 Stat. 220), the funds appropriated therein may legally be expended for certain objects of construction at Mare Island. This act appropriated the sum of $100,000 for such purpose, with the provision “that before this sum shall be expended, the Attorney-General of the United States shall decide that the United States have good title to the land upon which the buildings are to be erected.” 10 Stat. 223.

Attorney General Cushing in his reply of the same date stated: “I recommend therefor as indispensable prerequisites to any lawful expenditure of public money on Mare Island— “First, that due investigation be had, through the District Attorney of the Northern District of California, or otherwise, into the claim of Henry Sanford, and any other ground of individual claim of date subsequent to the conquest. “Secondly, that the State of California be invited to relinquish to the United States whatever claim, if any, she may have, to the shores or the overflowed land of Mare Island.” (Italics supplied.) Congress in passing the act must have had the same view as to California’s title as the Attorney General.

California never relinquished the swamp and overflowed lands in the patents here attacked, though it did certain lands to the eastward of those in the patents.

The purported reservation of 1853 comprised : “ * * * That the tract of land in the Bay of San Francisco bounded by the Bay of San Pablo, the Straits of Carquiues and Napa Creek, known as Mare Island, together with all its appendages of Tule or Marsh land ordinarily reputed to belong to said island, and the harbors, waters and anchorages connected therewith and necessary to the use of the same, be reserved to the United States for public uses.” (Italics supplied.) The question of the power of Congress to divest a state to which it granted swamp and overflowed lands by the 1850 act early came before the Supreme Court.

In the case of French v. Fyan, 93 U.S. 169, 23 L.Ed. 812, Congress, by that act, had granted the lands in question to Missouri. Later, in 1857, as here to California, a patent was issued to the State of Missouri. In the interim, under a congressional grant of 1852, the swamp and overflowed lands were certified in 1854 to the Missouri Pacific Railway Company.

If it constituted a reservation at all, this certification of the lands by the Secretary of the Interior to the railway under the act of Congress of 1852 (10 Stat. 8) was as complete a reservation of the swamp and overflowed lands “from sale” and from the “Public Lands” as was the withdrawal of swamp and overflowed lands in dispute under the act of August, 1852.

The Supreme Court held that the withdrawal by certification of the lands to the railway under the act of 1852 could not divest Missouri of its title to the swamp and overflowed lands granted in 1850, since the earlier act was a grant in prsesenti to that state: “This court has decided more than once that the swamp-land act was a grant in preesenti, by which the title to those lands passed at once to the Slate in which they lay, except as to States admitted to the Union after its passage.

The patent, therefore, which is the evidence that the lands contained in it had been identified as swamp-lands under that act, relates back and gives certainty to the title of the date of the grant. As that act was passed two years prior to the act granting lands to the State of Missouri, for the benefit of the railroad, the defendant had the better title on the face of the papers, notwithstanding the certificate to the railroad company for the same land was issued three years before the patent to the State, under the act of 1850.

For while the title under the swamp-land act, being a present grant, takes effect as of the date of that act, or of the admission of the State into the Union, when this occurred after-wards, there can be no claim of an earlier date than that of the act of 1852, two years later, for the inception of the title of the railroad company.” French v. Fyan, 93 U.S. 169, 170, 23 L.Ed. 812. In many succeeding cases the Supreme Court has reaffirmed this decision that the grant of 1850 was such a present grant. The principle established in French v. Fyan has recently been reaffirmed by the Supreme Court in U. S. v.

Minnesota, 270 U.S. 181, 46 S.Ct. 298, 303, 70 L.Ed. 539, where the cases and decision of the Secretaries of the Interior are reviewed: “By the Act of September 28, 1850, Congress granted to the several states the whole of the swamp lands therein then remaining unsold. 9 Stat. 519, c. 84. The first

section was in the t usual terms of a grant in prcesenti, its words being that the lands described ‘shall be, and the same are hereby, granted.’ The second

section charged the Secretary of the Interior with the duty of making out and transmitting to the Governor of the state accurate lists and plats of the lands described, and of causing patents' to issue at the Governor’s request, and it then declared that on the issue of the patent the fee simple to the lands should vest in the state. The third

section directed that, in making out the lists and plats, all legal subdivisions the greater part of which was wet and unfit for cultivation should be included, but where the greater part was not of that character the whole should be excluded. The question soon arose whether, in view of thé terms of the first and second sections, the grant was in prcesenti and took effect on the date of the act, or -rested in promise until the issue of the patent and took effect then. The then Secretary of the Interior, Mr.

Stuart, concluded that the grant was in prcesenti in the sense that the state became immediately invested with an inchoate title which would become perfect, as of the date of the act, when the land was identified and the patent issued. 1 Lester’s Land Laws, 549. [‘As the grants are regarded as taking effect from the date of the laws making them respectively, and as vesting the inchoate title in the states, it follows that any subsequent sale or location of swamp and overflowed lands must be held to be illegal and the purchase money refunded, or a change of location ordered’. 1 Lester’s Land Laws.] That conclusion was accepted by his successors, was approved by the Attorney General (9 Op.Attys.Gen. 253) [‘This difficulty, therefore, is solved if the mere grant (of 1850), as you call it, gave the State a right to the land from the day of its date.

That it did so there can be no doubt. In an opinion which I sent you on the 7th of June, 1857, concerning one of the same laws now under consideration, I said that a grant by Congress does of itself, proprio vigore, pass to the grantee all the estate which the United States had in-the subject matter of the grant, except what is expressly excepted.’ * * * 9 Op.Attys.Gen. 253.] was adopted by the courts of last resort'in the states affected, and was sustained by this court in many cases. (French v. Fyan, 93 U.S. 169, 170, 23 L.Ed. 812; Wright v.

Roseberry, 121 U.S. 488, 500, et seq., 7 S.Ct 985, 30 L.Ed. 1039; Rogers Locomotive Works v. Emigrant Co., 164 U.S. 559, 570, 17 S.Ct. 188, 41 L.Ed. 552; Work v. Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259.) A case of special interest here is Rice v. Sioux City & St. Paul R. R. Co., 110 U.S. 695, 4 S.Ct. 177, 28 L.Ed. 289. The question there was whether the act of 1850 operated, when Minnesota became a state in 1858, to grant to her the swamp lands therein.

The court answered in the negative, saying that the act of 1850 ‘operated as a grant in prasenti to the states then in existence’; that it ‘was to operate upon existing things, and with- reference to an existing state of facts’; that it ‘was to' 'take effect at once, between an existing grantor and several separate existing grantees’ ; and that, as Minnesota was not then a state, the act made no grant to her.” (Italics supplied.) United States v. Minnesota, 270 U.S. 181, 202, 203, 46 S.Ct. 298, 70 L.Ed. 539.

In that case the grant to Minnesota by the act of 1860 (12 Stat. 3 [see 43 U.S.C.A. § 988]) differed from that to California in specifically excepting from a grant in presentí “all lands which might be reserved, sold, or disposed of (in pursuance of any law theretofore enacted) prior to the confirmation of title under the grant — the confirmation being the issue of patent.” 270 U.S. 181, 204, 205, 46 S.Ct. 298, 304, 70 L.Ed. 539. Under this exception in the grant it was held that a prior treaty with the Indians constituted a reservation of the lands, and thus was within the excepting clause of the act of 1860.

The court also holds that even in the absence of such a specific exception, of lands reserved prior to the grant, these would be “impliedly excepted.” In considering the Minnesota act of 1860 as a grant in presentí, the court again relies on the opinions of the Attorneys General and established practice of the Interior Department. “The act of 1860 was construed as we here construe it by Secretary Delano in 1874 (1 Copp’s P.L.L. 475), and by Secretary Schurz in 1877 (2 Copp, 1081); and their construction was adopted and applied by their successors up to the time of this suit, and was approved by the Attorney General in 1906, 25 Op.Attys.Gen. 626.

So, even if there were some uncertainty in the act, we should regard this long-continued and uniform practice of the officers charged with the duty of administering it as persuasively determinative of its construction.” United States v. Minnesota, supra, 270 U.S. 181, 205, 46 S.Ct. 298, 304, 70 L.Ed. 539. The opinion of Attorney General Moody so accepted by the Supreme Court was upon a case not as strong as that of appellants’ here.

After the 1860 grant to Minnesota, the Congress, in 1872, authorized the Department of Agriculture to withdraw for forestry certain of the swamp and overflowed lands, just as did the act of August, 1852, authorize the Secretary of the Navy to withdraw the lands here patented. The withdrawal of the Minnesota lands was prior to patent under the act of 1860, and the question was whether the congressional withdrawal of the lands for forestry lands divested the state of its rights under the grant of 1860.

The case was weaker for the Minnesota than -for the California claim here, for here the swamp land patents have been issued.

In deciding that the congressional withdrawal did not divest Minnesota of its rights under the earlier grant, the Attorney General says: “Your first question is whether the swamp land grant is a grant in preesenii to the State of Minnesota of all the swamp lands therein, to be afterwards identified. “I shall not dwell upon this question, because your Department and the courts have frequently held that it is such a grant. “It has been held that the legal title does not pass until patent, and that when it does pass it relates to the date of the granting act. (Rogers Locomotive Works v.

Emigrant Company, 164 U.S. 559, 570 [17 S.Ct. 188, 41 L.Ed. 552]; Michigan Land & Lumber Company v. Rust, 168 U.S. 589, 591 [18 S.Ct. 208, 42 L.Ed. 591].) “Aside from the decisions, it seems clear that the intention of Congress was to give the beneficial title immediately to the State of all swamp lands in it, as against claimants attempting to initiate rights afterwards, except under laws theretofore enacted.” (Italics supplied.) 25 Op.Attys. Gen. 628, 629. We thus see that the Supreme Court in 1926, in United States v. Minnesota, supra, reaffirmed the holding of French v.

Fyan, supra, in 1876, that a subsequent congressional reservation cannot divest a state of its grant in pnesenti of swamp and overflowed lands under the act of 1850. In 1886 the same question came before Mr. Justice Field and Circuit Judge Sawyer with reference to a claimed divesting of California by the act of August, 1852, of the lands identical in character with that covered by the patents in this appeal, in San Francisco Sav. Union v. Irwin (C.C.) 28 F. 708, 709, 715. Mr. Justice Field relies on French v.

Fyan and other cases as establishing the present character of the grant to California of the act of 1850, and holds that the presidential reservation under the act of August, 1852, the reservation here relied on to void California’s patent, did not divest California of her title. At the time of the trial there had been no certification of the lands to California by the Secretary of the Interior. The plaintiff’s case rested on the title granted by the state patent. The government’s defense was that the act of 1850 was not a grant in praesenti. Upon this it asserted two propositions:

(1) That, since California had no title, the lands were public lands of the United States and hence subject to and withdrawn by the presidential withdrawal of 1853; and (2) that, before listing the lands as swamp and overflowed to the state by the Secretary of the Interior, California had no title, and hence plaintiffs’ showing that the lands were in fact swamp land overflowed in 1850 was not competent evidence. In disposing of these contentions Mr.

Justice Field, sitting with Circuit Judge Sawyer, held: “This is an action to recover possession of a tract of land situated partly in the county of Napa, and partly in the county of Solano, consisting of 7,413 acres and a fraction of an acre. It is alleged to be swamp and overflowed land, and that the title to it therefore passed to the state by the Act of congress of September 28, 1850, ‘to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.’ 9 Stat. 519. “The first

section of that act grants to the state of Arkansas ‘the whole of those swamp and overflowed lands, made unfit thereby for cultivation,’ which were unsold at the date of its passage. The fourth .section extends the provisions of the act to, and confers their benefits upon, each of the other states of the Union in which swamp and overflowed lands are situated. “The act is a grant in preesenti, to each state then in the Union, of lands situated within its limits of the quality described.

Its language is that they ‘shall be, and the same' are hereby, granted to said state/— words which import an immediate transfer of interest, and not one in the future. * * “On the seventh of April, 1874, the state, through her properly authorized officers, issued a patent of the tract in controversy to one George W. Pearson, describing it as swamp and overflowed land, and giving its metes and bounds. Through him, by various mesne conveyances, the plaintiffs trace their title, each having acquired an undivided one-third' interest in the premises as tenant in common with the others.

The' state, by various enactments, had. provided, for .the sale- of lands of'this character, and.no question is made as to the conformity of the proceedings with their .requirements in the issue of the patent. The objection taken is to the acquisition of any title by the state until the lands had been listed and patented to her by the United States.

The patent-of the state is the conveyance of whatever interest she had at that time in the land; and, if it were within the description of swamp and overflowed land, her interest was paramount to that of the United States, unless their title antedates the act of 1850. * * * In. the absence of any action of the secretary of the interior which would be conclusive in the matter as against collateral attack, the testimony of witnesses having knowledge of the subject as to the character of the land was admissible under the decisions mentioned.

That testimony clearly showed that the land was subject to periodical overflow by the rising of the tides in the bay of San Pablo, so as to make it unfit to raise the ordinary crops of the country without protecting it with levees from such overflow. * * * “We do not give any weight to the fact that in 1853, by order of the president of the United States, Mare island was reserved', with all its alleged appendages of tule or marsh lands ordinarily reputed to belong to such island; for, if such reservation was intended to include all the swamp and overflowed lands in controversy, it was to that extent inoperative, — the title, as we have already seen, having passed to the state by the act of September 28, 1850.” (Italics supplied.) San Francisco Sav.

Union v. Irwin (C.C.) 28 F. 708, 709, 712, 715. Mr. Justice Field delivered the opinion in the Savings Union Case on a trip to his circuit in July, 1886. At the succeeding October term of the Supreme Court he reaffirmed his holding' in the Circuit Court that the grant to California was in presentí in his-opinion in the case of Wright v. Roseberry, 121 U.S. 488, 7 S.Ct. 985, 30 L.Ed. 1039. In Wright v. Roseberry, Mr. Justice Field again relies on French v. Fyan as establishing the present character of the grant of the act of 1850, and that thereafter the state cannot be divested by subsequent reservation.

He also relies on the same opinions of the Secretaries of the Interior, Stuart and Schurz, cited as establishing the law in United States v. Minnesota, which, in turn, cites, at page 205 of 270 U.S., at page 304 of 46 S.Ct., 70 L.Ed. 539, Wright v. Roseberry as establishing the present character of the swamp land grant to the states. One of the questions in the Roseberry Case was whether, the 1850 grant being in prsesenti, the holder of the deed from the state could establish by parol evidence the overflowed character of the land at that date.

The Supreme Court held it could be so shown because after the 1850 grant the lands “were not after-wards public lands at the disposal of the United States.” “The court below held, and placed its decision upon the ground, that, because the- commissioner of the general land-office had not certified the lands in controversy to the state as swamp and overflowed, when, this action was commenced in 1870, there was no title in the state by the grant of 1850 which could be enforced, thus making the investiture of title depend upon the act of the commissioner instead of the act of congress; whereas the certificate of that officer, when the previous requirements of the law have been complied with, is only an official recognition that the lands are of the character designated, and of the completeness of their segregation.

The decision is in conflict with its previous decisions, and with the adjudged cases to which our attention has been called. “In Sacramento Valley Reclamation Company v. Cook [61 Cal. 341] decided as late as 1882, that court recognized the swamp-land grant of 1850 as one in prmsenti.

Its language was: ‘It is as well settled as anything can be by the courts that the donation of swamp and overflowed lands by the United States to the states in which such lands were situated at the date of the passage of the act of September 28, 1850, “was a grant in pmsenti, by which the title to those lands passed at once to the states in which they lay, except as to states admitted into the Union after its passage,” ’ citing French v.

Fyan, 93 U.S. 169 [23 L.Ed. 812], “For the error in holding that the certificate of the commissioner was necessary to pass the title of the demanded premises to the state, the case must go back for a new trial, when the parties will be at liberty to show whether or not the lands in controversy were in fact swamp and overflowed on the day that the swamp-land act of 1850 took effect. If they are proved to have been such lands at that date, they were not afterwards subject to pre-emption by settlers. They were not afterwards public lands at the disposal of the United States.

Parties settling upon such lands must be deemed to have done so with notice of the title of the state, and, after the segregation map was deposited with the surveyor general of the state, with notice also that they were actually segregated and claimed by the state as such lands. “Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.” (Italics supplied.) Wright v. Roseberry, 121 U.S. 488, 520, 521, 7 S.Ct. 985, 1000, 30 L.Ed. 1039.

Not thereafter being “public lands” of the United States, they therefore could not be withdrawn by the act of 1852 authorizing a reservation from “public lands” as here claimed by the United States to void the instant patents to California. The appeal in San Francisco Savings Union v. Irwin (136 U.S. 578, 10 S.Ct. 1064, 34 L.Ed. 540) came before the Supreme Court shortly after Wright v. Roseberry. The United States appeared on the appeal, giving the decision a finality it could not have against Commandant Irwin, a mere administrative officer.

The government’s bill of exceptions abandoned the claim that the reservation under the act of 1852 divested California of the lands now in the patents sought to be voided. The sole point raised was whether, there being a grant in prsesenti, and the lands no longer public lands, as held in Wright v. Roseberry, but no certification of the lands to the state, the overflowed character of the land in 1850 could be shown by parol. The Supreme Court held on the authority of Wright v. Roseberry that it could. Irwin v. San Francisco Savings Union, 136 U.S. 578, 580, 10 S.Ct. 1064, 34 L.Ed. 540.

The government here relies on District Judge Van Fleet’s opinion in Sawyer v. Osterhaus (D.C.) 212 F. 765, as overruling Justice Field’s and Circuit Judge Sawyer’s decision in the Circuit Court in the Irwin Case. This was a suit in ejectment brought by Sawyer against Osterhaus, commandant of Mare Island Navy Yard, and, having in possession the swamp lands in Survey No. 34, here in question. Sawyer deraigned title from the Darlington patent. Since California then had not acquired its patent from the United States, Sawyer could not show legal title.

The court rested its decision, denying ejectment on the ground “that plaintiff has wholly failed to make out, as was incumbent upon him, a legal title to the premises in suit.” 212 F. 765, 775. Continuing as a dictum, but declaring he did not rest his decision on it because “it was not urged upon the attention of the court,” Judge Van Fleet says, “I think” that the congressional act of 1850 did not constitute a grant in prsasenti, and hence the two naval reservations would defeat the right of California to a patent.

Not only is this a mere dictum, but, had it been a holding, it decided nothing in favor of the United States. The Attorney General made a special appearance in the case, claiming it should be dismissed because the United States was the real party in interest, and had not given permission to be sued. The motion was denied on the ground that the title of the United States was not involved. Sawyer v. Osterhaus (D.C.) 195 F. 655. A judgment for or against the commandant’s possessory right would not estop either the United States or the California claimants in a subsequent suit between them. Hussey v. U.

S., 222 U.S. 88, 32 S.Ct. 33, 56 L.Ed. 106; Carr v. U. S., 98 U.S. 433, 437, 25 L.Ed. 209. This District Court dictum was many years before U. S. v. Minnesota, and is of no weight against the latter’s holding of the present character of the grant to California. Judge Van Fleet’s error rested on the assumption that the grant of 1850 is a grant in futuro vesting nothing in California until the date of the certification of the lands by the Secretary of the Interior or of the ensuing United States patent, and that before that time the swamp lands remained “public lands” subject to a presidential reservation.

He cites certain decisions on school land grants as supporting this thesis, failing to note the essential difference between tHe present grant of swamp lands and the future and promissory quality of the school land grants. The school land case of Heydenfeldt v. Daney Gold & S. Min. Co., 93 U.S. 634, 638, 639, 23 L.Ed. 995, cited by Judge Van Fleet, and which precedes Wright v. Roseberry, construes the school land grant as in futuro. Wisconsin v. Hitchcock, 201 U.S. 202, 213, 26 S.Ct. 498, 50 L.Ed. 727, also cited by him, rests on United States v. Thomas, 151 U.S. 577, 582, 14 S.Ct. 426, 38 L.Ed. 276.

They hold merely that lands of which the Indians had a right of occupancy prior to the school land grant, were not included in it. In United States v. Morrison, 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599, the school land grant to Oregon was held to be in futuro and not to prevent an intervening reservation for forestry purposes. All these cases precede United States v. Minnesota, 270 U.S. 181, 210, 46 S.Ct. 298, 70 L.Ed. 539, where the distinction between the two characters of grant is clearly made. One of the cases relied on in Sawyer v. Osterhaus, supra, is Minnesota v.

Hitchcock, 185 U.S. 373, 385, 22 S.Ct. 650, 46 L.Ed. 954, deciding the future vesting of a school land grant to Minnesota. In United States v. Minnesota, the school grant of the Hitchcock Case is distinguished from swamp land grants, as follows: “The case of Minnesota v. Hitchcock, 185 U.S. 373, 385, 22 S.Ct. 650, 46 L.Ed. 954, is cited as making for a different conclusion; but it does not do sol The question there was whether the state was entitled, under the school land grant, to sections 16 and 36 in the part of the Red Lake reservation which was ceded under the act of 1889.

That grant was expressed in words of promise, not of present grant. Title was to pass when the lands were identified by survey, if they were then public; and if at .that time they were not public but otherwise disposed of, the state was to be entitled to other lands in their stead.” (Italics supplied.) United States v. Minnesota, supra, 270 U.S. 181, 210, 46 S.Ct. 298, 306, 70 L.Ed. 539. The court regarded the holding that the swamp land grants were in prassenti was necessary to the decision of United States v. Minnesota.

If they were in futuro, there would have been no question that the Indian treaties of 1863 and 1865 took the swamp and overflowed lands of the 1860 grant which had not then been certified to the state. On the question whether a treaty with another nation had some higher constitutional power to divest Minnesota’s title than a statute reserving the lands, the court expresses grave doubt, but avoids deciding it by a construction of the treaty’s terms as not intending such taking from the state. U. S. v. Minnesota, supra, 270 U.S. 181, 208, 209, 46 S.Ct. 298, 70 L.Ed. 539. If French v.

Fyan, supra, and the succeeding cases had not settled the question of the immediate vesting of the full equitable title of the swamp lands in California, a similar construction of the act of August, 1852, would lead us to conclude that Congress did not intend to take any lands from California of which lands it had vested in California the full equitable title; and that the 1850 reservation of Mare Island “from sale” contemplated the upland portion of the island, which, until recently, contained all the navy yard plant, and not California’s swamp and overflowed lands on its then doubtful borders.

The patents and appellee’s admission of the swampy character of the lands, and the case of French v. Fyan and succeeding cases, _ reviewed above, conclusively establish that, whatever title the United States had prior to the grant of September 28, 1850, thereafter, at most, it held the bare legal title in trust for California, to which then had been transferred, in presentí, the entire equitable interest.

We therefore hold that neither of the attempted reservations made by the President and the Secretary of the Navy after the congressional grant of 1850 divested California of its full equitable interest vested by the grant. V. The United States, seeking equity, can take no benefit against California and its successors from the decree in United States v. Bissell and Aspinwall confirming Castro’s invalid Mexican title, because (

a) If that suit, in its ordinary course, would be binding, upon California, as the then holder of the equitable title under the prior grant of 1850, in this case it would not so be binding because the United States, holding whatever legal title it acquired from Mexico, and required by the statute to defend it as .California’s trustee against the Castro title, prior to appearing against that title, acquired it for its own governmental use and thereafter appeared before the Land Commission, and waging a pretended adversary proceeding in which its private interest was adverse to its trust, carried it to a decree adverse to California; (

a) We consider the contention of the government relative to the advantage it may take of the District Court decree of 1930 rendered in the Bissell and Aspinwall case, having in view that its burden of proof to cause cancellation of the patents can he sustained only on “that class of evidence which commands respect.” The United States contends that the California title to the lands was defeated by the 1930 decree of the District' Court, given on appeal in the proceedings before the Land Board created by the act of Congress of 1851.

The act provides for filing with the Board of Land Commissioners of all claims to land based on Mexican titles and their adjudication as against the United States. The United States’ briefs here claim that whatever rights California held when the litigation was pending before the Land Board, then were in the United States and that California could not there appear as a party. We here consider this contention, disregarding any effect of the patent of 1928 as reverting the transfer of the legal title back to 1850.

We have seen that, since the lands are admitted to be swamp and overflowed, the United States, prior to the contested patents, held a bare legal title in trust for California. As was said by the Supreme Court, in a case determining the condition of unpatented swamp and overflowed lands, by applying to them the law regarding the homesteader: “ ‘The government holds the legal title in trust for him, and he may not be dispossessed of his equitable rights without due process of law. Due process in such case implies notice and a hearing.

But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the land department.’ Orchard v. Alexander, 157 U.S. 372, 383, 15 S.Ct. 635, 639 [39 L.Ed. 737].” (Italics supplied.) Brown v. Hitchcock, 173 U.S. 473, 478, 19 S.Ct. 485, 487, 43 L.Ed. 772. Whatever title Castro had, had been acquired by Messrs. Bissell and Aspinwall. They presented their claims to the Land Board, and issue was joined by the United States, the adversary party created by the statute.

Although appellants, before the decree rendered in 1930, held the 1928 patents giving them the legal title, they were never made parties to the action, nor asked to present their rights amicus curise. The decree was obtained without their knowledge. While the proceedings were pending, the United States in 1853 bought from Bis-sell and Aspinwall their claim under the Castro title.

We thus have the United States claiming here that it acquired the Mexican title from its adversary parties and then proceeded to the trial of the controversy as to its validity in simulated opposition to litigants no longer having an interest, and that it thereby established in itself a title adverse to California. The depositions taken in this situation, reprehensible in a court of law, and, if anything, more so in a court of equity, show a most perfunctory cross-examination of the witnesses, presumably offered by parties opposed to the government, but, in fact, representing its acquired interest.

The result of such an examination by pretended adversaries seeking the single objective of a perfect title gave to Governor Alvarado and the other witnesses the opportunity to disprove the fraud suggested in some of the questions and found in the Bouldin v. Phelps Case, supra. In its pretended adversary position the government “rode to a fall” to perfect the title it had acquired. However, this court is not required to measure the industry and effectiveness of the performance of the government’s statutory duty and obligation to California to resist the Castro claim.

Once the government acquired the interest adverse to California, its cestui, it can take no advantage from the proceeding before the commission. “We have no desire to weaken or qualify in any way the wholesome doctrine laid down by this court in the case of Michoud v. Girod, 4 How. 503 [11 L.Ed. 1076], that a trustee cannot legally purchase on his own account that which his duty requires him to sell on account of another, nor purchase on account of another that which he sells upon his own account; in other words, he cannot unite the two opposite characters of buyer and seller.

So jealous is the law of dealings of this character by persons holding confidential relations to each other that the cestui que trust may avoid the transaction, even though the sale was without fraud, the property sold for its full value, and no actual injury to his interests be proven.” Hoyt v. Latham, 143 U.S. 553, 566, 12 S.Ct. 568, 572, 36 L.Ed. 259. “Convinced that the relation of the parties was fiduciary and not merely contractual, we are unable to accept the view thus outlined.

It would require a clear case to warrant a court of equity in declaring that the trustees of an express trust, in the very course of their administration of the trust, had acquired a dominant interest in the trust property and in effect a discharge of the trust, through mere inattention or even negligence — not raising an estoppel or amounting to laches — on the part of the parties beneficially interested, or of their executive officers. Conduct merely equivocal, or apparently inconsistent with a vigilant insistence upon the obligations of the trustee, is not sufficient to discharge a trust.

The cestui que trust is entitled to rely upon the fidelity of the trustee, until plainly put on guard against him.” Chicago, M. & St. P. Ry. Co. v. Des Moines, etc., R. Co., 254 U.S. 196, 220, 41 S.Ct. 81, 90, 65 L.Ed. 219. On the basis of the government’s assumption that California was not a “third persons” and could not appear as a party, because her equity was held in trust by the United States, the government appears in a position to which the language of Mr.

Justice Chase seems applicable: “I think that the United States are not absolved in their dealings with citizens from the obligations of honesty by which individuals are usually controlled.” Mason v. U. S., 17 Wall. 67, 75, 21 L.Ed. 564. It does .not ameliorate the situation, but rather heightens it, -when we consider that the evidence of the depositions so taken shows • that Castro did not have any grant of land from the Mexican government under the clear provisions of the Mexican law. It cannot be said that the United States unconsciously violated its duty to its cestui.

On April 9, 1853, over a year before the 'first deposition was taken, the United States Attorney General Caleb Cushing gave an opinion on the Castro proceedings before the Board of Land Commissioners. 8 Op.Attys.Gen. 422. The review is made with reference to the effect of the purchase by the United States of the Castro title pending these proceedings. His letter to the Secretary of the Navy, in specific language, sustains the contention here made by appellants.

Speaking of the purchase of this Castro claim, he says this is done by “the payment of a large sum of money * * * to silence and extinguish it: — which, it seems, has accordingly been done.” Discussing the further conduct of litigation, he says: “True, the United States may decline to resist the claim óf'Castró.on the pending suit, and, by consent, or by omission to enter an appeal, may, in fact, take the side of the adversary party, his claim being vested in them, and allow a final judgment tó be entered affirming the grant to Castro.

But I, as Attorney General, in view of the special duties imposed on me by the acts for the settlement of private land claims in California, and of my general obligation to look after the rights of the United States in the premises, cannot pursue this course

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