Sherman v. Buick

Citation93 U.S. 209,23 L.Ed. 849
PartiesSHERMAN v. BUICK
Decision Date01 October 1876
CourtUnited States Supreme Court

ERROR to the Supreme Court of the State of California.

The plaintiff in error brought suit in the proper court of the State of California to recover possession of a part of section 36, township 5 south, range 1 east, Mount Diablo meridian, and asserted title thereto under a patent from the United States, bearing date May 15, 1869. The defendant claimed under a patent from the State of California, of the date of Jan. 1, 1869. The title of the State is supposed to rest on the act of Congress of March 3, 1853 (10 Stat. 246), granting to her, for school purposes, with certain limitations, every sixteenth and thirty-sixth section within her boundaries, according to the surveys to be thereafter made of the public lands.

The plaintiff, in aid of his patent, and to defeat the title of the State under the act of 1853, offered to prove, that, as early as Dec. 20, 1862, he had settled upon the land, and had ever since resided on it; that it was not surveyed until Aug. 11, 1866; that he had filed and proved his pre-emption claim to it Nov. 6, 1866; and paid for it, and received a patent certificate, on which his patent was duly issued.

The court excluded this evidence, and gave judgment for the defendant, which was affirmed by the Supreme Court; whereupon the plaintiff sued out this writ of error. The sections of the act which bear upon the case are set forth in the opinion of the court.

Mr. Philip Philips, Mr. S. M. Wilson, and Mr. George A. Nourse, for the plaintiff in error.

1. It was competent for the plaintiff to show that the State, at the date of her patent to the defendant, had no title to the lands in controversy. Polk's Lessee v. Wendell, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 381; Patterson v. Tatum, Pacific Law Reporter, Oct. 6, 1874; Doll v. Meader, 16 Cal. 295; Terry v. Megerle, 24 id. 609; Reichart v. Felps, 6 Wall. 160; Norton v. Nebraska, 21 id. 660.

2. The legal title to sections sixteen and thirty-six did not vest in the State until they were marked out and defined by survey. Until then the grant to her was in the nature of a float. Middleton v. Lowe, 30 Cal. 596; Railroad v. Fremont County, 9 Wall. 94; Gaines v. Nicholson, 9 How. 356; Cooper v. Roberts, 18 id. 173. The settlement of the plaintiff, having been made before such survey, was within the exception contained in the seventh section of the act of 1853. The grant, therefore, did not embrace the lands covered by that settlement, and the patent of the State was an absolute nullity.

3. The intention of Congress to protect pre-emption settlements made on school sections before such survey is clearly manifested by the provision authorizing the State to select other lands in lieu of those on which such settlements were made.

Mr. Montgomery Blair for the defendant in error.

1. The grant of sections sixteen and thirty-six was in proesenti. No settlement on the lands in controversy having been made by the plaintiff at the date of the act, or within one year thereafter, they were not excepted from the grant. Houghton v. Higgins, 25 Cal. 255; Doll v. Meader, 16 id. 296; Van Volkenburg v. McCleud, 21 id. 330; Summers v. Dickinson, 9 id. 554; Owen v. Jackson, id. 322; Keeran v. Griffith, 27 id. 87; Robinson v. Forest, 29 id. 317; Bludworth v. Lake, 23 id. 255; Mezerle v. Ashe, 27 id. 328; 33 id. 74; Rutherford v. Greene, 2 Wheat. 196.

2. Although a survey was required to identify these sections by specific boundaries, a vested interest passed to the State by force of the act of 1853. The doctrine of relation has been uniformly applied when executive acts, whether by survey or patent, are required to give full effect to a grant. The title, whenever they are completed, inures as of the date of the inception of the grant, and defeats all intervening claims. Landis v. Brant, 10 How. 373; Kissell v. The Public Schools, 18 id. 19; Cooper v. Roberts, id. 173; Chouteau v. Gibson, 13 Wall. 92; Maguire v. Tyler, 8 id. 650; Railroad Company v. Smith, 9 id. 95; Veeder v. Guppy, 3 Wis. 502.

It is said, on the other side, that the grant does not attach to the school sections till they are surveyed, because till then there were no such sections. This proves too much. If the thing granted did not exist, or was not described with certainty, the grant would be void, which is not the argument. The thing granted is the land, which did exist. 'Section' is only a word of description, but it is a certain and enduring description; and a grant of a particular section is equally operative to appropriate it, whether its lines have been already run, or are hereafter to be run in the same manner, making the location only a question of measurement and calculation. Hence the description is as complete in the one case as in the other, and is so treated by the law; for the grant applies in terms to the 'surveyed and to the unsurveyed land.' As much violence is done to the language by withholding the 'unsurveyed' lands from the schools as by denying them to pre-emptors.

3. Subsequent acts extending the permission to settle upon unsurveyed lands have no bearing upon this case. They cannot operate to recall the grant of 1853, or impair the rights which the State acquired under it. The government cannot resume its grants. New Orleans v. De Armas, 9 Pet. 224.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.

The contest in this case is between a patent of the United States and a patent of the State of California. To determine which of them conveyed, under the facts offered in evidence, the title to the land in controversy, a construction of the act of 1853 is required. It is entitled 'An Act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes,' and is the first act of Congress which extended the land system of the United States over the newly acquired territory of that State. It provided for surveys, for sales, for the protection of the rights of settlers, miners, and others; and, among the other purposes mentioned in the caption, for magnificent donations to the State of lands for schools and for public buildings.

The sixth and seventh sections of the act are of chief importance in the matter under consideration; the preceding sections having provided for surveying all the lands. The clause of the sixth section, in which the grant to the State of the sixteenth and thirty-sixth sections for school purposes is found, reads as follows:——

'All the public lands in the State of California, whether surveyed or unsurveyed, with the exception of sections sixteen and thirty-six, which shall be, and hereby are, granted to the State for the purposes of public schools in each township; and, with the exception of lands appropriated under this act, or reserved by competent authority, and excepting, also, the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the pre-emption laws of the 4th of September, 1841, with all the exceptions, conditions, and limitations therein, except as is herein otherwise provided; and shall, after the plats thereof are returned to the office of the register, be offered for sale, after six months' public notice in the State of the time and place of sale, under the laws, rules, and regulations now governing such sales, or such as may be hereafter prescribed.'

Then come several provisos, which we will consider hereafter; but we pause here to note the effect of this granting and excepting clause on the lands which should, by the future surveys of the government, be found to be sections sixteen and thirty-six.

It is obviously the main purpose of the section to declare, that after the lands are surveyed they shall be subject to sale, according to the general land system of the government; and, secondly, to subject them to the right of pre-emption as defined by the act of 1841, and to extend that right to lands unsurveyed as well as to those surveyed. But here it seemed to occur to the framer of the act, that California, like other States in which public lands lay, ought to have the sixteenth and thirty-sixth sections of each township for school purposes, and that they should not be liable to the general pre-emption law, as other public lands of the government would be. He accordingly injected into the sentence the grant of these lands to the State, and the exception of them from the operation of the pre-emption law of 1841, together with other lands which in like manner were neither to be sold nor made subject to pre-emption. These were, lands appropriated under the authority of that act, or reserved by competent authority; lands claimed under any foreign grant or title (i.e., Mexican grants); and mineral lands. All these were by this clause exempted from sale and from the general operation of the pre-emption laws.

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