115 U.S. 102 (1885), Frasher v. O'connor

Citation:115 U.S. 102, 5 S.Ct. 1141, 29 L.Ed. 311
Party Name:FRASHER and others v. O'CONNOR.
Case Date:May 04, 1885
Court:United States Supreme Court

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115 U.S. 102 (1885)

5 S.Ct. 1141, 29 L.Ed. 311

FRASHER and others



United States Supreme Court.

May 4, 1885


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[5 S.Ct. 1141] Geo. F. Edmunds and Wm. J. Johnston, for plaintiffs in error.

E. R. Taylor, for defendants in error.



This is an action for the possession of a parcel of land in Los Angeles county, California. The plaintiff, the defendant in error here, traces title to the premises by a patent of the state, issued to Robert Thompson on the twenty-first day of April, 1874, and certain mesne conveyances from the patentee. The title of the state was derived from selections of land in lieu of sections 16 and 36 granted for school purposes by the act of congress of March 3, 1853.

The defendants below, the plaintiffs in error here, contend that the selections by the state were void, because made within the asserted limits of a claim under a Mexican grant before the survey of such grant, which excluded the disputed premises, had become final; and set up a right to the land as preemptors under the laws of the United States by settlement and improvement subsequent to the state patents, with a tender to the officers of the land department of the required sums in such cases of entitle them to patents of the United States.

The position of the defendants below is that, being entitled as such preemptors to patents from the United States of the lands in controversy, they are in a position to call in question the validity of the proceedings by which the land was selected by the state agents and listed to the state. To determine the questions thus presented, it will be necessary to give a brief history of the legislation of congress and of California with respect to the lands granted to the state for school purposes.

The act of congress of March 3, 1853, 'to provide for the survey of the public lands in California, the granting of pre-

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emption rights therein, and for other purposes,' placed the public lands in that state, with certain specified exceptions, subject to the general pre-emption law of September 4, 1841. 10 St. 246, § 6. Among the excepted lands were sections 16 and 36 of each township, which were declared to be thereby granted to the state for the purposes of public schools, and lands claimed under any foreign grant or title. The act also declared, in its seventh section, that where a settlement by the erection of a dwelling-house, or the cultivation of any portion of the land, should be made on the sixteenth and thirty-sixth sections before they should be surveyed, or where such sections should be reserved for public uses, or [5 S.Ct. 1142] 'taken by private claims,' other lands should be selected in lieu thereof by the proper authorities of the state. The lands in controversy were within the boundaries of a tract claimed under a confirmed Mexican grant, known as the 'Rancho Sausal Redondo.' As sections 16 and 36 of townships were covered by the grant, a case was presented within the seventh section of the act of congress, in which the state was authorized to select other lands in lieu of them. The legislature of California, by an act passed April 27, 1863, provided for the sale of certain lands granted to the state by congress, and, among others, of the sixteenth and thirty-sixth sections in the several townships, or of lands which might be selected in lieu thereof. It prescribed the proceedings to be taken for the purchase of the lands, and required each state locating agent to keep a record of applications to purchase made to him, and when they amounted to 320 or more acres, to apply on behalf of the state to the register of the United States land-office of the district for such lands, in part satisfaction of the grant under which they were claimed, and to obtain his acceptance of the selections thus made. Various other proceedings were required by the act to secure a proper presentation to the land department of the United States of the lands thus purchased of the state; that is, of lands thus selected in satisfaction of the grant to her.

Surveys of the public lands in California were greatly delayed after the passage of the act of 1853, and as late as 1866 many

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townships had not been surveyed. For want of these surveys, it was impossible to ascertain the precise locality, in each township, of the sixteenth and thirty-sixth sections, and of course, except in a few instances, such as where the whole township was embraced in a private claim under a Mexican or Spanish grant, it could not be known whether there had been any such settlement on those sections as would authorize the state to select other lands in lieu thereof. The state was embarrassed by this delay in the public surveys, not only in the use of the sixteenth and thirty-sixth sections, and, when they were occupied by settlers, in the selections of lands in lien of them, but also in the selection of lands granted by other acts of congress than that of March 3, 1853. By the eighth section of the general pre-emption law of September 4, 1841, 500,000 acres of land were granted to each new state subsequently admitted into the Union, and of course to California, for purposes of internal improvement; the selection of the lands to be made from any public land within her limits, except such as was or might be reserved from sale by a law of congress or the proclamation of the president, and in such manner as her legislature should direct, and located in parcels conformably to sectional divisions and subdivisions of not less than 320 acres in any one location.

In May, 1852, in advance of any surveys by the United States, the state passed an act for the sale of these 500,000 acres. It authorized the governor to issue land-warrants for not less that 160 acres, and not more than 320 acres in one warrant, to the full amount of the grant; the treasurer to locate them at two dollars an acre, and the purchasers and their assigns to locate them on behalf of the state on any vacant and unappropriated land belonging to the United States subject to such location. Under these laws selections were made by agents of the state, or purchasers of warrants who were authorized to locate the same. Similar legislation was had and similar proceedings were authorized with respect to other lands granted by acts of congress to the state. When, however, selections thus made

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were brought to the attention of the land department at Washington, they were not recognized as conferring any right to the parties claiming under them. Selections made in advance of the public surveys were held to be wholly invalid. This ruling of the department caused great confusion and embarrassment in the state. Titles thought to be unquestionable were...

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