Work v. United States, 4561.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: MARTIN, Justice, and ROBB and VAN ORSDEL, Associate Justices
• Citation: 57 App. DC 309,23 F.2d 136
• Parties: WORK, Secretary of the Interior, v. UNITED STATES ex rel. O'DONNELL.
• Docket Number: No. 4561.,4561.
• Decision Date: 07 November 1927

57 App. DC 309, 23 F.2d 136 (1927)

WORK, Secretary of the Interior,
v.
UNITED STATES ex rel. O'DONNELL.

No. 4561.

Court of Appeals of District of Columbia.

Submitted October 4, 1927.

Decided November 7, 1927.

G. P. Barse and N. M. Lacy, both of Washington, D. C., for appellant.

Edmund Burke, J. G. Jaeger, and S. H. Rourke, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

A peremptory writ of mandamus was issued by the court below to compel the appellant, Secretary of the Interior, to certify to the state of California for patent certain lands, under the Act of Congress of September 28, 1850 (9 Stat. 519 43 USCA §§ 982-984; Comp. St. §§ 4958-4960), alleged to be swamp and overflow in character.

The lands were surveyed in 1856 by authority of the state of California, and identified under the survey as "survey 34" containing 164.55 acres. Appellee, relator below, James E. O'Donnell, claims title to this tract of land through mesne conveyances from the state of California. No certificate or other evidence of title has been issued by the United States to the state; however, in proceedings brought in the Department of the Interior to secure recognition of the claim of the state to these lands, the Secretary, in a decision dated January 10, 1925, held that "the body or strip of land known as survey No. 34 was, at the date of the swamp land grant of September 28, 1850, swamp in character; that it was above the ordinary high-water mark and formed a contiguous body attached to the higher portion of Mare island. Accordingly it is hereby declared to be swamp land, and, as such, subject to patent to the state of California, in the absence of other sufficient reasons."

This finding was in response to a writ of

23 F.2d 137

mandamus issued by the Supreme Court of the District of Columbia in a former suit, brought by this relator, requiring the Secretary to determine whether the lands in question were swamp in character at the date of the swamp land grant. The Secretary, however, refused to certify the lands for patent to the state; hence the present suit

The defense is now interposed that the land in question is a part of the Mare Island Navy Yard, and that title to this land was acquired by the United States by purchase from parties who had derived title from one Victor Castro, who claimed under a Mexican grant at the time of the cession of California by Mexico to the United States. The claim of Castro was presented by his grantees, George W. Bissell and William H. Aspenwall, to the Board of Land Commissioners, created by the Act of Congress of March 3, 1851 (9 Stat. 631), to ascertain and settle private land claims in the state of California, and was confirmed by the commissioners. On January 4, 1853, the grantees of Castro conveyed to the United States, for the consideration of $83,491, the following-described property: "All that tract of land and island called and known as Mare Island, in the bay of San Francisco, as recently surveyed by the board of officers of the United States, sent to California for the selection of a site for the navy yard there. including all the tule or low land, and marsh belonging to the same, or which has ever been reputed or claimed to belong to the same, and all the waters, harbors, bays, creeks, and other waters, privileges, benefits, advantages, tenements, hereditaments, and appurtenances thereunto belonging."

In May, 1910, one Sawyer, a predecessor in title to relator, brought suit in ejectment in the United States District Court for the Northern District of California, claiming to be the owner of the land included in survey No. 34, making as defendant in said case one Osterhaus, then a rear admiral in the United States Navy and commandant at Mare Island Navy Yard. A judgment was entered against Sawyer. Sawyer v. Osterhaus et al. (D. C.) 212 F. 765.

It also appears that, in a suit instituted in the Circuit Court of the United States for the Northern District of California in 1887, against the then commandant of the navy yard, to recover Mare Island, the entire Castro grant and all proceedings under it...