Woodworth v. Fulton

• Decision Date: 01 December 1850
• Citation: 1 Cal. 295
• Court: California Supreme Court
• Parties: WOODWORTH v. FULTON, ET. AL.

1 Cal. 295

WOODWORTH v. FULTON, ET. AL.

Supreme Court of the State of California

December Term, 1850

December 1, 1850

APPEAL from the Court of First Instance of the District of San Francisco.

The action was brought to recover possession of a portion of a one hundred vara lot in the City of San Francisco. The defendants were in the actual possession of the lot claimed, having purchased it of a third person for a full consideration and having erected valuable improvements upon it.

The plaintiff claimed to recover by virtue of a grant from an Alcalde of San Francisco, of which the following is a copy:

"To Edwin Bryant, Esq., Alcalde of the District of San Francisco: Your petitioner being a citizen of California, according to the proclamation of his Excellency, Commodore R. F. Stockton, and a resident of the town of San Francisco, would respectfully solicit for the grant of a title to a lot of land, No. 22, containing one hundred varas square, in the vicinity of the town of San Francisco, the said lot being a corner lot, and marked in the plan or map now exhibited in your office, now vacant and unoccupied; upon which he intends to erect a dwelling house, according to the rules and regulations governing in such cases; and desires that he may be put in possession thereof as soon as your convenience will permit.

(Signed) "S. E. WOODWORTH, U. S. Navy."

"Whereas, S. E. Woodworth has presented the foregoing petition solicting for the grant of a title to a lot of land in the vicinity of the town of San Francisco, containing one hundred varas square, as therein described; therefore, I, the undersigned Alcalde, do hereby give, grant and convey the said lot number twenty-two (22) unto the said S. E. Woodworth, his heirs and assigns forever, subject to the following conditions:

"First—That the said S. E. Woodworth, his heirs or assigns, shall erect or cause to be erected a dwelling house on said premises, within one year from the date of these presents.

"Second—That the said S. E. Woodworth, his heirs and assigns, shall enclose or cause to be enclosed said lot with a suitable fence.

"Third—And to be subject to all rules and regulations governing in such cases.

"In testimony whereof I have hereunto set my hand and subscribed my name as Alcalde, this fifteenth day of April, A.D. 1847.

(Signed) "EDWIN BRYANT, Chief Magistrate."

In addition to this paper the plaintiff relied upon certain acts of possession which he performed in 1848, and which, he insisted, entitled him to judgment, although his title should be held to be invalid. These are noticed in the opinion of the Court. The cause was argued by

Edward Norton, for Plaintiff, who made the following points:

I. The plaintiff, having the legal paper title, was entitled to the possession:

First—It is a part of the history of this country, of which the Court will take notice, that Alcaldes' grants, at least under the Mexican dominion, conveyed a title sufficient to enable the grantee to take, hold, and recover possession of municipal lands. (Henthorn v. Doe, 1 Blackford, 159; 1 Kent's Comm. 470-473.)

Second—The authority of Alcaldes to make such grants continued under the American dominion.

Because, the town lands, being the property of the pueblo, did not pass to the United States as part of the public domain and could be legally granted by the town authorities in accordance wih the municipal laws of the conquered country, which continued in force until others were substituted. (Halleck's Report, p. 9; Peachy's Report to Com. Council, March 5, 1850; Bryant's "What I saw in California," 437-439; Proclamation of General Kearny, Bryant, 431; The Ordinance of the Town Council.) As to the exercise of the power by the town authorities, see 1 Kent's Comm. 470-73.

And because, if the pueblo lands did pass to the United States, the grants have been authorized and sanctioned by the United States. (Acts of General Kearny and of Alcaldes appointed by him, Bryant, 437, 439.)

Third—Both parties claim under the same source of title, and the plaintiff's grant, being the older, is the better. (See recital in Deed to Fulton; Penrose v. Griffith, 4 Binn. 231; Chambers v. The People, 4 Scammon, 351; Riddle v. Murphy, 7 Sergeant & Rawle, 230.)

Fourth—The grant was lawfully made by American authority to an American citizen, because, at the time, the country was held by the United States by right of conquest and the treaty confirmed their title and related back to its inception. (Wheaton's Law of Nations, 208, 396, 440.)

Fifth—The conditions of the grant were abrogated by the party that imposed them. If not, the title is not divested until re-entry after legal denouncement. (See Ordinance; Case fol. 8, 9.)

II. The prior possession of the plaintiff was sufficient to authorize him to be restored. (1 White's Recop. 87, Cap. 4; Escriche's Dic. 541; Jackson v. Hubble, 1 Cowen, 613; Whitney v. Wright, 15 Wend. 171; Wheeler v. Rogers, 4 Hill, 466; Carpenter v. Weeks, 2 Hill, 341—New York Reports; Den v. Sinnickson, 4 Halstead, 149—New Jersey; Ellithorp v. Dening, 1 Chipman, 141—Vermont; Hoey v. Furman, 1 Penn. State Rep. 295—Pennsylvania; Hutchins v. Erickson, 1 Har. and McHenry, 339—Maryland; Ludlow's Heirs v. McBride, 3 Ham. 240—Ohio; Jackson v. Porter, Paine. 457; 2d Circuit, Robinson v. Doe, 6 Blackford, 85—Indiana.)

First—The plaintiff had actual possession of the whole lot under claim of title, and adverse to all the world.

The petition and act of taking possession show the good faith. (Escriche's Dic. 541; 1 White's Rec. 87, 92; 7 Feb. Tapia, 33; Northrop v. Wright, 7 Hill, 488; Jackson v. Newton, 18 J. R. 355; Gardner v. Heart, 1 Comstock, 528; Cook v. Rider, 16 Pickering, 186.)

Second—The plaintiff's entry, being by color of a deed, his possession extended by contraction to the limits of the premises described in his deed. (Ellicott v. Pearl, 10 Pet. 412; Hammond v. Ridgley, 5 Har. & J. 245; Jackson v. Camp, 1 Cowen, 605-9; Hoey v. Furman, 1 Penn. State Rep. 295; numerous Cases cited in 3d Vol. U. S. Digest, 411, No. 177.)

Third—The plaintiff's right being established, continues, without an actual pedis possessio, unless a presumption is raised that he has abandoned his claim, and that was a fact to be passed upon by the jury. (1 White's Rec. 93, Sec. 5; 1 Domat, 481, Sec. 24; Whitney v. Wright, 15 Wend. 171—New York; Myers v. McMillan, 4 Dana, 485—Kentucky; Warner v. Paige, 4 Vermont, 291—Vermont; Ellicott v. Pearl, 1 McLean, 206; 7th Circuit—Mazyck v. Birt, 2 Brevard, 155—South Carolina; Sanger v. Newland, 9 Vermont, 383; Cook v. Rider, 16 Pickering, 186—Massachusetts.)

R. A. Wilson, for Defendants,

Insisted that the judgment of the Court below ought to be reversed, on the grounds that plaintiff had shown neither title, nor possession of the premises in controversy; that the proceedings in the Court below were a combination of the summary action of possession, and a petitory action upon title, and that plaintiff had failed to make out a case in either form of proceeding.

The paper offered in evidence by plaintiff to establish his title, had none of the characteristics of a title deed, or of a buying and selling contract under the civil law. It is without seal, without subscribing witnesses, without a notarial act of verification, and without consideration, and purports to be a gift by a public officer, by virtue of his office. The question is, whether it was ever intended by the grantor for a title deed, and if so, whether he had a right, by virtue of his office, to make the grant.

Mr. Edwin Bryant, addressed by the title of "Alcalde," but holding a commission from the commander of the American invading army, of Chief Magistrate and Justice of the District of San Francisco, was not a municipal officer of the incorporated town (pueblo) of Yerba Buena, if there ever was such an incorporation. He was but a civil lieutenant of the commanding General, whose duties were limited necessarily to the preservation of order and the maintenance of authority over a conquered village; possessing, from necessity, the right to determine personal actions, that arose from time to time, during the continuance of the military occupation, and until such time as the magistracy and laws of the conquered party should be reinstated, or the territory annexed to the dominions of the conqueror by a treaty. (Vattel, p. 395, Sec. 212.) During this military occupancy, neither the commanding General, nor any of his lieutenants, had the right to make a grant of lands, either out of the public domain, or out of the lands of individuals or pueblos. Nor did the United States at that time possess a sufficient property in the lands of the conquered territory to give a valid title. (Vattel, p. 391, Sec. 202; p. 386, Sec. 197.) From these premises the inference is irresistible that Mr. Bryant had no authority by the law of nations to make the grant, and he manifestly had no such authority by the laws of his own country.

The next exception taken in the Court below was that the plaintiff was an officer in the naval service of the United States. It was his duty to preserve, as far as lay in his power, the conquests of his country. For doing this he was paid. In attempting to acquire an individual property in this land, he violated principles of discipline, and principles of law as old as the civil law itself. (Ayliffe's Pandects, p. 287; Vattel, p. 365, Secs. 164, 165.)

But it may be said that in these military agricultural establishments, or colonies known as pueblos, the fee of the whole land is in the society itself; and that after a new colonist has paid his initiation fee of six dollars and two reales, he is entitled to have assigned to him a house lot, which only operating as a permit to take possession of a vacant lot, the possessor acquires an indefeasible interest therein, in consequence of complying with all the requirements of the law, in making improvements; that the Town Council having dispensed with the condition imposed by...