Mission Rock Co. v. United States

• Decision Date: 16 May 1901
• Docket Number: 682.
• Citation: 109 F. 763
• Parties: MISSION ROCK CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F. 763

MISSION ROCK CO. v. UNITED STATES.

No. 682.

United States Court of Appeals, Ninth Circuit.

May 16, 1901

Page McCutcheon, Harding & Knight, for plaintiff in error.

Marshall B. Woodworth, U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges. This was an action of ejectment originally

ROSS Circuit Judge.

This was an action of ejectment originally brought by the United States against the California Dry-Dock Company, a corporation, for the recovery of the possession of a tract of land containing 14.69 acres, and including the rock known as 'Mission Rock,' and a small adjacent rock, in the Bay of San Francisco, together with damages for the withholding of the premises, and rents, issues, and profits thereof aggregating $355,000. The defendant Mission Rock Company, a California corporation, having, pending the action, acquired all the right, title, and interest of the California Dry-Dock Company in the premises sued for, was, by an order of the court, based upon the request of the respective parties substituted for the original defendant, and the action continued against it. The case comes before us on the judgment roll, and upon findings of fact which appear to have been agreed to by the respective parties. From those findings it appears that the title of the United States to the lands in controversy, under the treaty of Guadalupe Hidalgo, as successor of the Mexican republic, has not since been devested by patent or other conveyance, and that the title thereto is still in the United States, unless the same passed to the state of California by virtue of the admission of that state into the Union under the act of congress of September 9, 1850, or unless the United States relinquished its title thereto under subsequent acts of congress. At the time of the admission of California into the Union the premises sued for consisted of two rocks or islands adjacent to one another, and projecting above the plane of ordinary high water in the Bay of San Francisco, the larger of which rose to a height of more than 20 and less than 40 feet above such high water, and of other lands contiguous thereto and surrounding the rocks or islands, which were completely submerged, and over which the daily tides continuously flowed and ebbed. The areas of these rocks or islands above ordinary high-water mark at the time of the admission of the state into the Union were as follows: The one called 'Mission Rock' had an area of .14 of an acre; the other an area of .01 of an acre. These rocks or islands rose abruptly out of the bay. Their sides, to the extent that they were covered and uncovered by the flow and ebb of the tide, varied from 10 to 25 feet, depending on their steepness. Both rocks were barren, without soil or water, and were of no value for agricultural or mining purposes. They lay at a distance of about half a mile from the then shore line of that part of the bay upon which the city of San Francisco fronted. Navigable waters divided and still divide the lands sued for from the mainland, and surrounded and now surround them; and they were not, at the date of the admission of California into the Union, within the boundaries of any valid private or pueblo grant of lands of the Spanish or Mexican governments. No approved plat of the exterior limits of the city of San Francisco, as provided by the terms of section 5 of the act of congress of July 1, 1864 (13 Stat. 332), has been filed or rendered to the general land office of the United States or of the state of California. The lands sued for are within such exterior limits. On the 13th day of January, 1899, the president of the United States, purporting to act in conformity with that act of congress, issued the following order:

'Executive Mansion.

'January 13, 1899.

'It is hereby ordered that Mission Island and the small island southeast thereof, designated on the official plat on file in the general land office, approved October 12, 1898, as lots 1 and 2 of section 11, township 2 south, range 5 west, Mount Diablo meridian, California, containing, according to the plat, fourteen one-hundredths of an acre and one one-hundredth of an acre, respectively, be, and they are hereby, declared as permanently reserved for naval purposes.

William McKinley.'

On the . . . day of March, 1864, the United States surveyor general for the state of California extended the public surveys so as to comprehend and include the rocks or islands and the lands in controversy. On April 4, 1870, the governor of the state of California approved an act of the legislature of the state entitled 'An act to provide for the sale and conveyance of certain submerged lands in the city and county of San Francisco to Henry B. Tichenor ' (St. 1869-70, p. 801), which lands therein described included the lands sued for in this action. On the 11th day of July, 1872, the state of California, in conformity with the act of April 4, 1870, issued its patent for the lands in controversy herein to Tichenor, purporting to convey the same to him, which patent was duly recorded. After the execution of the patent Tichenor executed a deed of grant, bargain, and sale, of date May 1, 1878, purporting to convey the lands in controversy to the California Dry-Dock Company, which thereafter, and on the 6th day of June, 1900, executed to the defendant Mission Rock Company a like deed to the same lands, which still holds whatever rights it thereby acquired, and into the possession of which lands the Mission Rock Company then entered and has ever since remained. After the execution of the deed by Tichenor to the California Dry-Dock Company, that company undertook the improvement of the lands covered by the deed by filing in portions of the submerged lands immediately around and contiguous to the rocks or islands with many thousands of tons of rock, thus increasing the available area of the lands to about 4 acres, upon which extensive warehouses were built by it, and wharves erected for the accommodation of shipping. Ever since the issuance of the patent by the state of California to Tichenor, the patentee and those holding under him have been in the continuous and uninterrupted possession of the lands covered by the patent, using the same and the improvement thereon for commercial purposes, and claiming to be the absolute owner thereof. On the 7th day of April, 1890, Col. George H. Mendell, then in charge of the corps of engineers of the United States army on the Pacific Coast, caused to be served on the California Dry-Dock Company the following notice:

'United States Engineer's Office, No. 533 Kearney Street.

'San Francisco, Cal., April 7th, 1890.

'Captain Oliver Eldridge, President California Dry-Dock Company, 303 California Street, San Francisco, Cal.-- Sir: Under the provisions of section 12 of the river and harbor act of August 11th, 1888 (a copy of which is inclosed), a board of engineer officers was appointed to establish the harbor line of San Francisco harbor and adjacent waters. There is transmitted herewith for your information a map upon which are shown the limiting lines of wharves, and the line beyond which no deposits shall hereafter be made at Mission Rock, as established by the board and approved by the secretary of war March 24th, 1890.

'Very respectfully,

G. H. Mendell, 'Colonel, Corps of Engineers.'

The limits referred to in this letter and delineated in the map are, in effect, the limits of Mission Rock as approved at that time.

Upon the facts so found and agreed to by the respective parties the court below gave the government judgment for the possession of the premises sued for, with costs, but without any damages, rents, issues, or profits. The appeal is from that judgment.

From the foregoing statement of the case it will be seen that the judgment is not limited to the two rocks or islands embraced in the executive order of January 13, 1899, the one covering .14 and the other .01 of an acre, but awards the government the entire contract of 14.69 acres, including the warehouses and other improvements constructed by the defendant and its predecessors in interest. The case therefore involves not only legal questions of great importance, but also property rights of great value. As no part of the property in controversy ever was within any private or pueblo grant, the title to the whole tract in question passed to the United States, as the successor of the republic of Mexico. The questions are, has the title to the whole or any part of the premises passed out of the United States, and, if so, subject to what, if any, conditions? The act of congress of September 9, 1850, admitting California into the Union 'on an equal footing with the original states in all respects whatever,' was subject to the 'express condition that the people of said state shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and the right to dispose of, the same shall be impaired or questioned; and that they shall never lay any tax or assessment of any description whatsoever upon the public domain of the United States, and in no case shall non-resident proprietors, who are citizens of the United States, be taxed higher than residents; and that all the navigable waters within the said state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor: provided, that nothing herein contained shall be construed as recognizing or rejecting the propositions tendered by the people of California as articles of compact in the ordinance adopted by the convention which formed the constitution of that state. '...