Beley v. Naphtaly

• Decision Date: 03 February 1896
• Docket Number: 251.
• Citation: 73 F. 120
• Parties: BELEY et al. v. NAPHTALY.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F. 120

BELEY et al. v. NAPHTALY.

No. 251.

United States Court of Appeals, Ninth Circuit.

February 3, 1896

H. F Crane and Philip Teare, for plaintiffs in error.

A. L Rhodes, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and MORROW, District Judge.

ROSS Circuit Judge.

This action was brought by the plaintiff (defendant in error here) to recover the possession of various lots and parcels of land described according to the public surveys of the United States, situated in Contra Costa county, Cal., and also damages for the withholding thereof, the plaintiff relying for title thereto upon two patents issued by the government of the United States, pursuant to an approved application by him to purchase the lands under and by virtue of the seventh section of the act of congress of July 23 1866, entitled 'An act to quiet land titles in California' (14 Stat. 218). That section provides:

'That where persons, in good faith and for a valuable consideration, have purchased land of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same after having such lands surveyed under existing laws at the minimum price established by law, upon first making proofs of the facts as required in this section, under regulations to be provided by the commissioner of the general land office.'

The bill of exceptions recites that on the trial, after introducing the patents in evidence, the plaintiff proved that, when he was in the quiet and peaceable possession of the lands, the defendants entered thereon, and ousted the plaintiff therefrom, and have since withheld the lands from him; that the plaintiff also proved the rental value of the premises; and that it was then admitted by the counsel for the defendants that, at the time of the issuance of the patents, the lands in question were public lands of the United States, subject to sale under its laws, and 'that defendants did not propose to connect themselves in any manner or form with the title of the United States to the premises described in the complaint herein (and in the patents), or any part thereof, either by certificate of purchase, patent, or anything of the kind.'

Confessedly, therefore, the defendants are mere naked trespassers. As such, they claimed the right in the court below to attack the validity of the patents issued to the plaintiff in the action, and, for that purpose, offered in evidence the following documents: First. The application of the plaintiff to purchase the lands from the United States, under the pursuant to the provisions of the seventh section of the act of July 23, 1866, which application set forth, among other things, that the lands were included within the exterior limits and formed part of a grant made by the Mexican government in the year 1844 to Inocencio, Jose, and Mariano Romero, three brothers, who presented their claim thereto for confirmation to the board of land commissioners created by the act of congress of 1851 for the ascertainment and settlement of private land claims in California, which claim was rejected by the commission, and afterwards, on appeal, by the United States district court for California and by the supreme court; that in 1846 or 1847 the Romero brothers partitioned the lands claimed by them under the grant, Inocencio taking that part thereof embraced within a certain inclosure, and including the lands sought to be purchased by the applicant; and that Inocencio Romero used and cultivated the same until December 26, 1853, when he sold and conveyed the same, for value, to Domingo Pujol and Francisco Sanjurjo, who entered into possession of the lands within the inclosure, and used, improved, and continued in the actual possession of those lands, according to the lines of their original purchase, until February 14, 1855, when they sold and conveyed the same, for value, to one J. W. Tice, who entered into the possession thereof, used, improved, and cultivated the same, and continued in the actual possession thereof until August 8, 1859, when he conveyed the same, and transferred the possession thereof to one S. P. Millett; that Millett then entered into the possession of the lands so inclosed, used, improved, and cultivated the same, and continued in the actual possession thereof, according to the lines of the original purchase, until 1868, when he conveyed the same to D. P. Smith, who, in February, 1869, conveyed the same to J. P. Spring, who, in March, 1869, conveyed the same to Martin Clark, who, on May 15, 1876, conveyed the same to the applicant, Naphtaly; that the conveyance to Smith was made, according to the information and belief of the applicant, for the benefit of Millett, and the conveyances to Spring and Clark were made for the benefit of the applicant, who entered into the exclusive possession of the lands, according to the lines of the original purchase made by Pujol and Sanjurjo from Inocencio Romero, according to the information and belief of the applicant; that, according to his information and belief, the applicant and his grantors and predecessors in interest have been in the actual and continuous possession of the lands sought to be purchased by him ever since the year 1847, according to the liens of the original purchase; that on July 23, 1866, there was no adverse claim by any person to the lands, or any part thereof; that they are not mineral lands, and have not been reserved to the United States for any purpose. Second. The record of the Romero claim from the office of the surveyor general of the United States for California. Third. The opinion and decree of the board of land commissioners rejecting the claim. Fourth. The opinion and judgment of the United States district court district of California, as reported in 1 Hoff.Land Cas. 219, Fed. Cas. No. 12,029, affirming the decision of the commissioners. Fifth. The opinion and judgment of the supreme court of the United States, as reported in 1 Wall. 721, affirming the decision of the district court. Sixth. The opinion and decision of the commissioner of the general land office rejecting the application of Naphtaly to purchase the lands. Seventh. The opinion and decision of Secretary of the Interior Vilas, as reported in 8 Land Dec.Dep.Int. 144, affirming the decision of the commissioner of the general land office. Eighth. The opinion and decision of Acting Secretary of the Interior Chandler, as reported in 12 Land Dec.Dep.Int. 667, ordering a rehearing of the application to purchase. Ninth. The opinion and decision of Secretary of the Interior Noble on the rehearing, as reported in 14 Land Dec.Dep.Int. 536, approving the application, and directing patents for the lands in question to be issued to the applicant. To each and all of the documents so offered in evidence, the plaintiff objected, on the ground that such evidence was immaterial, incompetent, and irrelevant. The action of the court below is sustaining the objections, and excluding the documents, constitutes the grounds of the appeal.

Assuming that the defendants, being admittedly mere naked trespassers upon the lands in question, are entitled to attack the patents issued to the plaintiff, we proceed to inquire whether any of the documents offered in evidence tend to affect their validity. Beyond question, the patents are absolutely conclusive in respect to all matters of fact properly cognizable by the officers of the land department. The decisions of the supreme court and of other courts to this effect are so numerous as to render their citation no longer necessary. The real ground of the defendants' contention, however, is that inasmuch as it was found and held by the United States tribunals that no grant was ever made by the Mexican government to the Romeros, nor anything in the semblance of a grant, there was absolutely no case presented by the applicant. Naphtaly, to the officers of the land department, for the application of the provisions of the seventh section of the act of congress of Jul 23, 1866, and that the disposal of the lands in question to the applicant by virtue of those provisions was beyond the power of the secretary of the interior, because unauthorized by law. It is also contended by defendants that one secretary of the interior has no power to grant a rehearing of a case decided by his predecessor, and that the reconsideration of Haphtaly's application to purchase by Mr. Secretary Noble, and its allowance by him, were, therefore, without authority of law, and void. Noble v. Railroad Co., 147 U.S. 165, 13 Sup.Ct. 271, and U.S. v. Stone, 2 Wall. 537, are cited in support of this position; but neither of those cases at all supports it. In Noble v Railroad Co., the company, desiring to avail itself of the act of congress of March 3, 1875 (18 Stat. 482), granting to railroads a right of way through the public lands, took the steps required by the statute to secure that right. When all of those requirements had been observed, the secretary of the interior was authorized to approve the profile of the road, and to cause such approval to be noted upon the plats in the land office of the district where such land was located; and thereupon the granting section of the act became operative, and vested in the company the right of way. The court held that, after this was done, it was beyond the power of a succeeding secretary to revoke the action of his predecessor in office, for the title had already passed to the...