United States v. Coronado Beach Co.

• Decision Date: 29 December 1919
• Docket Number: E-34.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. CORONADO BEACH CO.

274 F. 230

UNITED STATES v. CORONADO BEACH CO.

No. E-34.

United States District Court, S.D. California, Southern Division.

December 29, 1919

A Mitchell Palmer, Atty. Gen., Geo. J. Denis, Sp. Asst. Atty Gen., of Los Angeles, Cal., and Robert O'Connor, U.S Atty., of Los Angeles, Cal.

Morrison Dunne & Brobeck, of San Francisco, Cal., for defendant.

TRIPPET District Judge.

This suit is being prosecuted in pursuance of an act of Congress of date July 27, 1917 (40 Stat. 247 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 1867ddd)). This act provides that the suit shall be prosecuted in accordance with the laws of the state of California relating to the condemnation of property for public use. The suit is for the determination and appraisement of any rights the defendant may have in North Island, in the harbor of San Diego, Cal., and for the condemnation of such rights. The government took possession of this island, and now seeks to condemn the defendant's interest therein, under the above-mentioned act, for use for national defense and in connection therewith as sites for permanent aviation stations for the army and navy and for aviation school purposes.

On August 18, 1824, the sovereign general constituent congress of the United Mexican states issued a decree concerning colonization and settlement of the national lands of said republic. This decree provides: Art. 4. That those territories within ten leagues of the sea coast cannot be colonized 'without the previous approval of the supreme general executive power.'

Art. 5. 'If for the defense or security of the nation the federal government should find it expedient to make use of any portion of these lands for the purpose of constructing warehouses, arsenals, or other public edifices, it may do so, with the approbation of the general congress,' etc.

Art. 16. That the government, in conformity with the principles established in this law, will proceed to the colonization of the territories of the republic.

On November 21, 1828, in pursuance of article 15, the government, through his excellency, issued rules and regulations for the colonization of the territories of the republic. The Mexican government granted the land in controversy to one Pedro Carrillo, a Mexican citizen, on May 15, 1846. This grant was made by Pio Pico, the Governor of California, and recites:

'Whereas, Don Pedro Carrillo has, for his personal benefit and that of his family, petitioned for the land known as the island or peninsula in the port of San Diego, the proper examinations being previously made, using the faculties which are conferred on me in the name of the Mexican nation, I have granted him the aforesaid land in decree of this day, declaring to him the ownership of it by these presents, in conformity with the law of August 18, 1824, and the regulations of November 21, 1828, subject to the approval of the most excellent departmental assembly, and under the following conditions,' etc.

This recitation was made in the grant to comply with article 8 of the rules and regulations of November 21, 1828. It does not appear in the record that the grant was made with the approval of the supreme general executive power, as provided by article 4 of the decree of August 18, 1824. By virtue of the treaty of Guadalupe Hidalgo (9 Stat. 922), Congress on March 3, 1851 (9 Stat. 631, c. 41), enacted a law entitled 'An act to ascertain and settle the private land claims in the state of California. ' Pursuant to this act of Congress, Billings and others, assignees of Carrillo, the Mexican grantee, instituted proceedings against the United States before the commissioners created by said act, and subsequently in the District Court of the United States, to have the said title confirmed to them. The board of commissioners rejected the claim of Billings and others, but the District Court confirmed it on the 12th day of January, 1857. The only parties to said suit were Billings and others, as plaintiffs, and the United States, as defendant. However, before a patent was issued by the United States for the land, other parties were substituted for Billings and others. The patent issued to the successors of Carrillo makes the following recitation:

'Now know ye: That the United States of America in consideration of the premises and pursuant to the provisions of the act of Congress aforesaid of 3d March 1851, and the legislation supplemental thereto, have given and granted and by these presents do give and grant unto the said Archibald C. Peachy and William H. Aspinwall, and their heirs, the tract of land embraced and described in the foregoing survey, but with the stipulation that, in virtue of the fifteenth section of the said act, the confirmation of the said claim and this 'patent' shall not affect the interest of third persons.'

'To have and to hold the said tract, with the appurtenances, unto the said Archibald C. Peachy and William H. Aspinwall and to their heirs and assigns forever, with the stipulation aforesaid.' The title acquired under this patent passed to the defendant. The plaintiff claims that the grant to Carrillo created a fee in the grantee, subject to the reservation provided in article 5 of the act of August 18, 1824, above quoted, and claims that the patent was simply a confirmation of such title, and that the right reserved to the Mexican government passed to the United States by virtue of the treaty of Guadalupe Hidalgo.

On the contrary, counsel for the defendant contends that the grant to Carrillo passed a fee-simple title, and claims that the first eight articles of the decree of 1824 referred only to foreign colonization, and not to grants made to citizens of Mexico, and is applicable only to estates, and not to the territories of the republic.

In De Arguello v. U.S., 18 How. 539, 15 L.Ed. 478, at the December term, 1855, the Supreme Court, in discussing this question, used the following language:

'It is evident from an inspection of this act of 1824, and consequent regulations of 1828, that they contemplate two distinct species of grants: (1) Grants to impresarios, or contractors, sometimes called pobladores, who engaged to introduce a body of foreign settlers. (2) The distribution of lands to Mexican citizens, 'families or single persons.'

'While these countries were under the dominion of Spain, the governors had authority to make grants of the latter description, while those of the former required the sanction of the king. As examples of such colonization contracts in Louisiana, those of the Marquis of Maison Rouge and the Baron de Bastrop may be referred to. They came under the consideration of this court in the cases of United States v. King and Coxe, 7 How. 833, and United States v. Philadelphia, 11 How. 609. These contracts were executory. They designated a certain tract of country, which was 'appropriated' to be gratuitously distributed among the colonists, but did not confer an absolute or immediate title to the whole tract to be colonized by the contractor. ' As the object of these grants was to obtain a body of foreign agriculturists, who would settle together under one common leader, in whom the government could confide, liberal terms were offered. A body of such colonists, besides opening, cultivating, improving, the wild lands,

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