Creery v. Haskell

• Decision Date: 06 December 1886
• Citation: 119 U.S. 327,30 L.Ed. 408,7 S.Ct. 176
• Parties: McCREERY v. HASKELL and another
• Court: U.S. Supreme Court

119 U.S. 327

7 S.Ct. 176

30 L.Ed. 408

McCREERY v. HASKELL and another.

December 6, 1886.

Geo. F. Edmunds, for plaintiff in error.

A. T. Britton, A. B. Browne, and Walter H. Smith, for defendant in error.

FIELD, J.

This was an action for the possession of a tract of land in the county of Los Angeles, California, described in the complaint as the S. E. 1/4 of section 14, in township 2, in that county. The plaintiff asserted title to the premises by a patent of the United States bearing date October 10, 1879, issued upon an alleged settlement and purchase under the pre-emption laws. He claimed to have settled upon the land December 21, 1869; to have filed his declaratory statement November 28, 1871; and to have paid the purchase money and received his certificate of entry in April, 1876. When this action was commenced, and when it was tried, Mrs. Fuller was one of the defendants. She traced title to the land by a patent of the stated of California to one Keller, bearing date March 4, 1874, issued to him upon a certificate of purchase given December 21, 1871, and by conveyance from him to her husband, now deceased. By order of the probate court of Los Angeles county the land was set apart to her as a homestead. The other defendant claimed possession merely as her agent and employe. After the case was brought to this court she died, and, upon representation that her interest had passed to Ellen Haskell, the latter was substituted as defendant in her place.

The land was selected by the state in part satisfaction of section 16 of one of the townships of the county, which was within the limits of a confirmed Mexican grant, as hereafter mentioned. By the act of congress of March 3, 1853, making the public lands of California, with certain exceptions, subject to the general pre-emption law of September 4, 1841, sections 16 and 36 of each township were granted to the state for the purpose of public schools, provided the sections, before the public surveys were extended over them, were not settled upon, and the settlement shown by the erection of a dwelling-house, or the cultivation of a portion of the land, or were not reserved for public uses, or 'taken by private claims.' If the sections were thus settled upon, or reserved, or 'taken by private claims,' the state was authorized to select othe lands in lieu thereof. 10 St. 244, c. 145, §§ 6, 7. The Mexican grant, within the claimed limits of which the premises in controversy were situated, was known as the 'Sausal Redondo Rancho.' It also embraced sections 16 and 36 of the township. It was made to one Antonio Ignacio Abila, May 20, 1837, by the then acting governor of California. The claim of the grantee to the land was confirmed on the tenth of June, 1855, by the board of land commissioners for the ascertainment and settlement of private land claims in California, and by the district court of the United States, at its December term, 1856. The decree of the court became final by the dismissal, under stipulation of the attorney general, of the appeal taken from it to the supreme court of the United States. In 1858, a survey of the land claimed was made by a deputy surveyor, but, not being approved by the surveyor general, it amounted to nothing more than a private survey. It was not until 1868 that any other survey was made, nor does it appear that there was any application for one by the grantee, or any party interested in the claim. For such neglect the act of congress of July 23, 1866, 'to quiet land titles in California,' furnished a remedy. 14 St. 218, c. 219. It provided that in all cases where a claim to land by virtue of a right or title derived from the Spanish or Mexican authorities had been finally confirmed, or should thereafter be finally confirmed, and a survey and plat thereof should not have been requested within 10 months after the passage of that act, or after the final confirmation subsequently made, it should be the duty of the surveyor general of the United States for California, as soon as practicable, to cause the lines of the public surveys to be extended over said lands, and to set off in full satisfaction of such grant, and according to the lines of the public surveys, the quantity of land confirmed by such final decree, and, as nearly as could be done, in accordance with it. And the act declared that 'all the land not included in such grant as so set off, shall be subject to the general land laws of the United States.' Under this act the land claimed was surveyed by a deputy United States surveyor, George Hansen, and set apart to the grantee in satisfaction of the grant. The survey was approved by the surveyor general, and over the land the section and township lines were extended. On the twenty-second of April, 1868, the township plats were filed in the district land-office at San Francisco.

The land lying outside of this survey thus became, in the language of the acts, 'subject to the general land laws of the United States.' It was open to settlement with other public lands, and consequent pre-emption by settlers, and to selection by the state in lieu of the school sections within the confirmed Mexican grant. Frasher v. O'Connor, 115 U. S. 102, 113; S. C. 5 Sup. Ct. Rep. 1141. As between the settler and the state, the party which first commenced the proceedings required to obtain the title, if followed up to the final act of the government for its transfer, is considered as being entitled to the property. In such cases, the rule prevails that the first in time is the first in right.

In Shepley v. Cowan, 91 U. S. 330, where there was a contest between a state selection and a settler, we said: 'The party who takes the initiatory step in such cases, if followed up to patent, is deemed to have acquired the better right, as against others, to the premises. The patent which is afterwards issued relates back to the date of the initiatory act, and cuts off all intervening claimants. Thus, the patent upon a state selection takes effect as of the time when the selection is made and reported to the land-office, and the patent upon a pre-emption settlement takes effect from the time of the settlement as disclosed in the declaratory statement or proofs of the settler to the register of the local land-office. The action of the state and of the set ler must, of course, in some way, be brought officially to the notice of the officers of the government having in their custody the records and other evidences of title to the property of the United States, before their respective claims to priority of right can be recognized. But it was not intended by the eighth section of the act of 1841, in authorizing the state to make selections of land, to interfere with the operation of the other provisions of that act regulating the system of settlement and pre-emption. The two modes of acquiring title to land from the United States were not in conflict with each other. Both were to have full operation, that one controlling, in a particular case, under...