O'DONNELL v. United States

• Decision Date: 07 June 1937
• Docket Number: No. 7522.,7522.
• Citation: 91 F.2d 14
• Parties: O'DONNELL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F.2d 14 (1937)

O'DONNELL et al. v. UNITED STATES.

No. 7522.

Circuit Court of Appeals, Ninth Circuit.

October 22, 1936.

As Amended on Denial of Rehearing June 7, 1937.

COPYRIGHT MATERIAL OMITTED

James E. Kelby, Gordon Lawson, and Samuel M. Garroway, all of Los Angeles, Cal. (Robert N. Denham, of Washington, D. C., of counsel), for appellants.

Warren Olney, Jr., and Robert L. Lipman, both of San Francisco, Cal., for appellants on rehearing.

H. H. McPike, U. S. Atty., and Esther B. Phillips and Robert B. McMillan, Asst. U. S. Attys., all of San Francisco, Cal. (Philip Buettner, Department of the Navy, of Washington, D. C., of counsel), for the United States.

Before DENMAN, MATHEWS, and HANEY, Circuit Judges.

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, Governor 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.¹

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 præsenti, 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 an attempt, formally perfect, to reserve Mare Island, including the swamp and overflowed lands, "from sale." On February 11, 1853, he again made an 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 to 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 Bissell 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 nonaction 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...