15 Cal. 530, Hart v. Burnett

Citation:15 Cal. 530
Opinion Judge:BALDWIN, Judge
Party Name:HART v. BURNETT et al.
Attorney:Thornton, Williams & Thornton, Edmund Randolph, Wm. J. Shaw, R. Aug. Thompson, Horace Hawes, John Nugent, and F. J. Lippitt, for Appellants. McDougall & Sharp and F. M. Haight, for Respondent. Hoge & Wilson, J. B. Townsend, McDougall & Sharp, and F. M. Haight, for Respondent.
Judge Panel:JUDGES: On petition for rehearing, Baldwin, J., delivered the opinion of the Court. Field, C J., concurring. COPE
Case Date:April 01, 1860
Court:Supreme Court of California

Page 530

15 Cal. 530



BURNETT et al.

Supreme Court of California

April, 1860

Page 531

[Syllabus Material]

Page 532

[Syllabus Material]

Page 533

[Syllabus Material]

Page 534

[Syllabus Material]

Page 535

[Syllabus Material]

Page 536

15 Cal. 530 at 623.

Original Opinion of April 1860, Reported at: 15 Cal. 530.

Rehearing denied.


Thornton, Williams & Thornton, Edmund Randolph, Wm. J. Shaw, R. Aug. Thompson, Horace Hawes, John Nugent, and F. J. Lippitt, for Appellants.

McDougall & Sharp and F. M. Haight, for Respondent.

The mere points, with the authorities of appellants, as given in a brief signed by most of the counsel, are as follows:

I. Neither the municipal incorporation of Yerba Buena (if such ever existed, which we deny) or the city of San Francisco, as its successor, ever had any title to the lands within their respective limits. But the title to them prior to the seventh of July, 1846, was in the Mexican Government, and since, by conquest and treaty, in the Government of the United States. (Vide opinion of Land Commissioners, under act of Congress, approved March 3d, 1851, in the case of San Francisco v. The United States, and authorities therein cited; Febrero Mexicano Libro Segundo, chap. 1, arts. 13 to 16 inclusive; Ordenanzas de Tierras y Aguas, 102-3-4; Decree of Spanish Cortes, January 4th, 1813; Land Laws in California, etc., (White) 2 vol. 46-161; Law of March 20th, 1837--entitled " Reglamento provisional para el Gobierno Interior de los Departamentos," and authorities (additional) under point No. III.; Mexican Executive Regulations of 1828; Escriche Dic. de Leg. y Juris, 571-3; Elizondo's Practica Universal Forens. vol. 3, 109; Id. vol. 5, 226; 5 La. 103; 10 Pet. 723; 2 White, 46-55; Id. 76, 111-125; Escriche, Verbum Baldio.)

II. The act of Congress approved March 3d, 1851--entitled " An Act to ascertain and settle Private Land Claims in the State of California" --is not a grant to the city of San Francisco of the lands, or of any portion of them, embraced within the limits of the city. (Vide Debates in the Senate of U.S. on the fourteenth section of said Act of Congress, approved March 3d, 1851; Bryant v. Forsyth, 15 How. 335; Kissell v. St. Louis Public Schools, 18 How. 19 .)

III. Conceding, for the sake of argument, that the city of San Francisco was invested with title to the lands within the corporate limits of the city; then such lands were held for public purposes, and were not subject to levy and sale under execution. (See authorities under point I.; 15 How. 367; Edgerton v. Third Municipality of New Orleans, 1 L. An. 435; La. State Bank v. Orleans Nav. Co., 3 La. An. 294; Municipality No. 3 v. Hart, 6 La. An. 570; Mayor v. Hopkins, 13 La. (O. S.) 208; Gilman v. Contra Costa, 8 Cal. 52; Emeric v. Gilman, 10 Cal. 404 ; 10 How. 534; Police Jury of Baton Rouge v. Michel, 4 La. An. 84; Heirs of Villars v. Kennedy, 5 La. An. 725-729; 4 Wheat. 660-1; 13 Wend. 337 ; 10 How. 534; 6 Id. 534; 1 Tucker's Com. 454; 5 Cal. 216; 9 Watts & S. 28 ; 3 How. 550 .)

IV. There is no proof in the record that the land in controversy is within the limits of the place called Yerba Buena, nor within the limits of any grant to such a municipal corporation as Yerba Buena; the plaintiff therefore cannot recover in this case.

Hoge & Wilson, J. B. Townsend, McDougall & Sharp, and F. M. Haight, for Respondent.

The points and authorities of Hoge & Wilson, for respondent, upon the leviable character of the city's interest in the municipal lands, as to defendants' right to set up the want of leviable title in the city, and upon the rule of stare decisis were:

I. Defendants claim under the city, relying upon a title under her ordinances, and are estopped to dispute her title. (Trahan v. McManus, 2 La. 209-214; 8 Id. 237; Jackson v. Shutee, 5 Cow. 182; Lessee of Cooper v. Galbraith, 3 Wash. C. C. R. 546; Hughes v. Barrow, 4 La. An. 250, and cases cited.)

II. As to stare decisis. (1 Blac. Com. 70, 71, and notes; 3 Johns. 562; Ram on Legal Judgment, 9 vol. Law Lib. 20, 21, 74-6; Curtis v. Leavitt, 15 N.Y. 187-8; Towle v. Forney, 14 Id. 423; Oakley v. Aspinwall, 3 Ker. 500; Welch v. Sullivan, 8 Cal.)

To sustain the defence in this case, the Court must first reverse the current of decisions in relation to San Francisco land titles. These are some of the cases: 1st. As to the title of the city to her pueblo lands. (Cohas v. Raisin, 3 Cal. 443; Seale v. Mitchell, 5 Id. 401; Dewey v. Lambier, 7 Id. 347; Welch v. Sullivan, 8 Cal. 165, 511; Norton v. Hyatt, Id. 539; Touchard v. Touchard, 5 Id. 307.)

2d. As to the right to sell the lands of the city under execution. (Smith v. Morse, 2 Cal. 524; Thorne v. San Francisco, 4 Id. 127; Seale v. Mitchell, 5 Id. 401; 8 Id. 165, 511; Wood v. The City, 4 Id. 193 .)

The counsel on the other side contend that the decision of Cohas v. Raisin may be sustained, so far as involves alcalde titles, and yet lend no sanction to the positions of the plaintiff in this case.

Alcalde titles can only be maintained upon the principle of ownership in the pueblo. Unless this be established, an American alcalde grant is not worth the paper it is written on. If the lands did not belong to the pueblo, then they were the property of the Mexican nation, and passed under the treaty to the United States. If so, by what authority did an American alcalde or magistrate, appointed under the authority of the United States, undertake to grant away the public lands? That such an officer had no such power, no one denies. This was the very basis of the decision in Woodworth v. Fulton. The whole case proceeds upon the assumption that there was no right of property existing in the pueblo. The very first step, therefore, in the case of Cohas v. Raisin et al. was to establish the title of the pueblo to her lands. Upon this rests the whole case. The argument of the Court is addressed to it. The principle once ascertained, the consequences necessarily follow. The property belonging to the municipality, her officers, under the regulations of the law, have authority to grant, not the lands of the Mexican nation, or of the United States, but of the pueblo, or incorporated body. We think it may be successfully maintained that the authority exercised by the Mexican Government over the pueblos and their property was political entirely, and not proprietary. It was the same power now exercised by our Legislature over incorporated municipal bodies. It would be difficult to maintain the validity of a Mexican alcalde grant upon the theory of our opponents.

III. The right of the pueblo to the lands within its limits is, at least, that of a perpetual usufruct of the property; and this the civil law construes into a gift of the property itself. (Arnauld v. Delachaise, 4 La. An. 119; 2 Prudhon, 6-9; New Orleans v. Bermudez, 3 Mart. 309; Lane v. U.S. 10 Pet. 728-35-6; 2 Bay, 195; 1 Ired. 194; 1 Doug. 546 .) The doctrine of the common law upon the subject of dedication leads to the same result. Such a dedication passes the absolute title to the town. (6 Pet. 481, 438, and case before cited from 10 Id.)

IV. These lands could be levied on and sold under judgments rendered against the city.

In this State, all property, whether real or personal, of the judgment debtor, not exempt by law, is liable to execution. (Statutes of 1850, 443; 1851, 83, tit. 7, ch. 1; 1854, 89; 1850, 94, secs. 8, 9, 10; 1851, 390, sec. 11; 1859, 76, sec. 2; 1858, 196, sec. 10; 1855, 266, sec. 66; 1858, 267, sec. 1; McKeon v. Bisbee, 9 Cal. 137 .) The Legislature cannot exempt municipal corporations from the ordinary process of the law. (Const. art. 4, sec. 33; 1 Duer, 494, 496.) A municipal corporation, as to her private property, as to her contracts, and as to her torts, occupies the same, and no other position, and is liable in the same way, and to the same extent with an individual or private corporation, as is abundantly clear from the following authorities: Touchard v. Touchard, 5 Cal. 306; Bailey v. Mayor of New York, 3 Hill, 538-541; S. C. 2 Den. 438; 1 Brown's Ch. 469; Milhau v. Sharp, 15 Barb. 211-12, 237-8; 9 Cal. 469; 7 Id. 376 -7; 10 Barb. 233-244; Lacour v. Mayor of New York, 3 Duer, 415; 15 B. Mon. 672-5, 642; 24 Barb. 482-3; 2 Rob. La. 211; 4 Id. 244; 1 Duer, 495-6; 1 Seld. 374; 12 Ill. 8; 3 Barb. 257; 25 Miss. 434; 5 Ired. 297; 1 Adol. & E. 700; 41 E. C. L. 736; 15 Mees. & W. 571; 3 McLean, 580; 2 Vern. 379.

The points and authorities of Mr. Townsend, for Respondent, upon the leviable character of the city's interest, were:

By reservation and dedication to the uses of a town and its inhabitants of the lands within its limits, such lands became, under the Spanish law, so absolutely the right and property of the town, that even the grant of the King himself could not alienate them. (2 White Recop. 100; Novis. Recop. lib. 7, tit. 16, Laws 1 and 2; Partida 3, tit. 28, Laws 9 and 10; Mexican Colonization Law of August 18th, 1824, sec. 2; 1 Febrero Mexicano, lib. 2, tit. 1, ch. 1, secs. 7, 13, 14, 15, 20, 25, 26.)

Such land was said to be granted to it " en clase de dote,' that is, as its dower or legal endowment. (See Ord. de Tier. y Ag. 102-3, 14, 19, 20, 21, 22, 23 .)

That such dedication passes the absolute title, at least to the perpetual use of the land, to the town, is as well the doctrine of the common law as of the civil. (See Devisees of Hawkins v. Arthur, 2 Bay, 195; Deu v. Boyd, 1 Ired. 194; Cincinnati v. White, 6 Pet. 431; Barclay v. Howell, 6 Id. 498; McConnell v. Town of Lexington, 12 Wheat. 582 .)

Such grant, when made by the sovereign or legislative authority, ipso facto, creates the inhabitants of such town a corporation, with capacity...

To continue reading