132 U.S. 554 (1889), Hale v. Akers

Citation:132 U.S. 554, 10 S.Ct. 171, 33 L.Ed. 442
Party Name:HALE et al. v. AKERS et al. [1]
Case Date:December 23, 1889
Court:United States Supreme Court
 
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Page 554

132 U.S. 554 (1889)

10 S.Ct. 171, 33 L.Ed. 442

HALE et al.

v.

AKERS et al. 1

United States Supreme Court.

December 23, 1889

In error to the supreme court of the state of California.

COUNSEL

[10 S.Ct. 171] W. W. Cope, for plaintiffs in error.

F. W. Hackett, for defendants in error.

OPINION

BLATCHFORD, J.

This is an action, brought August 22, 1879, in the superior court in and for the county of Sonoma, in the state of California, by Henry M. Hale and Georgiana L. Schell, executors of the will of Theodore L. Schell, deceased, against Stephen Akers and Montgomery Akers, to recover the possession of a piece of land in Sonoma county, being a portion of the Huichica rancho, and described as follows: 'Beginning at a point on the northerly line of the lane which runs from the dwelling-house of said Schell, westerly to the road leading from the Sonoma Plaza to the Embarcadero, called 'Montgomery street,' or 'Broadway,' which place of beginning is distant 23.24 chains from the point of intersection of said lane and said road; thence north, 50 deg. and 45 min. west, along a fence 18.98 chains; thence south, 37 deg. 15 min. west, about 25 chains to a point on the northerly line of said lane, distant 3.63 chains easterly from the point of intersection aforesaid; thence north, 78 [10 S.Ct. 172] deg. 30 min. east, along said northerly line

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19.61 chains to the place of beginning,--containing eighteen and a half acres.' The answer of the defendants set up, among other defenses, that Stephen Akers entered into possession of the premises more than 25 years before the suit was brought, under a claim of title by a written conveyance, made in 1858 by the city of Sonoma, in Sonoma county, which city was then in the possession of, and claimed title to, the premises, under a decree of confirmation by the board of land commissioners, dated January 22, 1856, and by the judgment and decree of the circuit court of the United States for the northern district of California, made November 16, 1864; that he was the owner in fee of the premises; that on the 11th of October, 1860, he entered into a written agreement with Schell, the testator of the plaintiffs, whereby he released to Schell one-half of a piece of land then in the possession of Akers, and containing 111 acres and 2 rods of land, and Schell agreed thereby that, in the event the city of Sonoma should establish its claim to any part of such released tract of land, he would deliver the possession of the same, or such portions thereof as might be so established, together with a yearly rent of $5 per acre for the land so to be delivered, and that Akers thereby agreed that, in the event of the city of Sonoma not being able to establish its claim beyond the present line of the Huichica patent, he would deliver possession to Schell of all, or such portion of the remainder, of such tract of land as might be within the line of the Huichica patent, and would pay a yearly rental for the same, at the rate of $5 per acre, to Schell; that by that agreement Schell relinquished all claim to the premises in question, and acquiesced in Akers' title and right of possession; that previous to October 11, 1860, and then and ever since, the city of Sonoma claimed the said lands as its pueblo lands, adversely to Schell, and was then, and ever since had been, prosecuting its claim before the land department of the government; that, before that time, the said city conveyed by deed to Akers the premises for which the suit was brought, and by virtue thereof he was, on the 11th of October, 1860, in possession of the premises, and claiming the

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same adversely to Schell; that at that time Akers claimed that the premises were within the pueblo lands of the city of Sonoma, and that that city would establish, before the land department of the United States and the commissioner of the general land-office, its claim thereto; that the defendants and the said city then and ever since claimed that the pueblo extended on the south-east to the Arroyo Seco, and that the Arroyo Seco formed the boundary line between the pueblo lands of the city and the lands of Schell, while Schell then claimed that the Arroyo Seco did not form such boundary line, but extended beyond it on the north, and included the lands of Akers; that, to settle the difficulties and avoid litigation, Akers and Schell made said agreement to await and abide the decision of the land department of the United States on the application of the city to have its title to its lands confirmed; that Schell then agreed with Akers that Schell should never claim any title to the lands described in the complaint, until it was determined by a decree of the land department of the United States that the city could not establish its title thereto; that Akers, for the purpose of avoiding litigation, and to await and abide the decision of said land department, delivered over to Schell other land within the pueblo, to await such decision, and Schell then agreed that, in the event the city established its claim to any of the land, he would forever release all claim of title or possession thereto, deliver up to Akers all the lands claimed by Akers within the pueblo, and pay to Akers $5 per acre per year for the use thereof; that Akers was to hold the land until the city should so fail to establish its title thereto; that the city had not failed to do so, but had established its claim; that on the 31st of March, 1880, and since the suit was commenced, the United States issued and delivered to the city and the trustees thereof a patent for the land described in the complaint; that the plaintiffs claimed the land by virtue of a patent issued by the United States to one Leese, and known as the Huichica patent; that said patent does not include the premises; that, if it does, the same was made without authority of law; that the only authority on which the...

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