Joseph Palmer, Charles Cook Bethuel Phelps, and Dexter Wright, Appellants v. the United States

• Decision Date: 01 December 1860
• Citation: 65 U.S. 125,24 How. 125,16 L.Ed. 609
• Parties: JOSEPH C. PALMER, CHARLES W. COOK BETHUEL PHELPS, AND DEXTER R. WRIGHT, APPELLANTS, v. THE UNITED STATES
• Court: U.S. Supreme Court

65 U.S. 125

24 How. 125

16 L.Ed. 609

JOSEPH C. PALMER, CHARLES W. COOK BETHUEL PHELPS, AND DEXTER R. WRIGHT, APPELLANTS, v. THE UNITED STATES.

December Term, 1860

THIS was an appeal from the District Court of the United States for the northern district of California.

The case is stated in the opinion of the court.

It was argued by Mr. Benjamin for the appellants, and by Mr. Black (Attorney General) for the United States.

The arguments consisted of comments upon the evidence in the case, which would not be interesting to the profession generally.

Mr. Justice GRIER delivered the opinion of the court.

The appellants claim the land in dispute as assigness of Benito Diaz. This claim was rejected by the board of land commissioners, and also by the District Court.

The documentary evidence, upon which the case rests, is as follows:

1. A petition of Benito Diaz, dated April 3, 1845, in which he asks for a grant of land which he calls 'a vacant place within the jurisdiction of San Francisco, known by the name of 'Punta de Lobos,' bounded on the north by the sea, which flows to the port of San Francisco; on the south with the Cerro, in the rear of the mission known by the name of the 'Cerro de Laguna Honda;' on the east with the 'Loma Alta;' and on the west by 'la Punta de Lobos;' which will comprehend two leagues.' The petition adds that the presidio and castle are within the tract, but the petitioner does not ask for them unless the Government is willing; but if that be done, he promises to erect a house of certain dimensions in the port of San Francisco for the military command.

2. An order of reference, bearing date May 24, 1845, and signed Pico, ordering the petition to pass for information to the respective judge, and await the report of the military commander upon the matter.

3. A report from Jose de la Cruz Sanches, who seems to have been alcalde at the pueblo of San Francisco, dated August 16, 1845, in which he declares that the land is vacant, and the petitioner has the necessary requisites according to law, but declining to give any information about the military lands.

4. A report by Francisco Sanches, the military commander, dated at the military command of San Francisco, October 18, 1845, setting forth that the land the petitioner solicits is vacant and may be conceded to him, 'not comprehending in the grant the two military points of the castle and presidio that are included in the petition.'

These documents are all written on the same paper. The Governor's order of reference is on the margin, and the reports endorsed. But there is no concession or order that a definitive title should issue to the petitioner, as is always found when the Governor accedes to the prayer of the petition. (See Arguello v. United States, 18 Howard, 543.)

The petition is not accompanied by a dise no or map of the land, as required by the regulations of 1828. This is all the document found among the archives or public records, and shows this fact only: that the petitioner asked for land; that the inform e did not satisfy the Governor, who did not accede to the request, and therefore the petitioner took nothing by his application. That the Governor had good reasons for refusing the prayer of this petition, is apparent from the fact, not only of the public fortifications of the harbor being erected thereon, but because on the 4th of November, 1834, Governor Figueroa, in his decree establishing the puebla of San Francisco, had included a large portion of the land now claimed, and the remainder was claimed as the land of the Mission Dolores, which the Departmental Assembly afterwards (15th April, 1846) ordered to be sold at auction, and suspended the further alienation of the same as vacant.

This is all the record evidence, on which alone the court can rely as speaking the truth. It does not show even an inchoate equity in Benito Diaz; nor does the fact that he carried off some of the materials of the dilapidated fort to build him a house in San Francisco add to it.

The next fact which we can admit as sufficiently proved is, the sale by Benito Diaz of the land claimed to Thomas O. Larkin, in September, 1846, reciting a grant or patent to Diaz, dated 25th of June, 1846. This instrument purports to be a patent or definitive title to Benito Diaz, for all the land included in the boundaries mentioned in the petition. The public fortifications which protect the harbor of San Francisco are not excepted. The value of such a grant might easily be anticipated, when the occupation of the country by the United States had taken place. Pio Pico, after his deposition from the government, could afford to be more liberal in 1846 than in 1845, when he very properly refused to make it. There is no trace of this grant to be found on record, or in the public archives. It purports to be signed by Pio Pico, and attested by his secretary, Moreno; and each of them has been called to attest the genuineness of the signatures. We have decided in the case of Luco v. United States, (23 How., 543,) 'that, owing to the weakness of memory with regard to the dates of grants signed by them, the testimony of the late officers of the Mexican Government in California cannot be...