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Statement of the Case.

high-water mark, and that Mission Creek (which is an estuary of the bay of San Francisco and runs alongside this block) was, at that time, navigable for a considerable distance above them. This evidence was objected to, on the ground that parol evidence was inadmissible to prove the boundary lines of the decree of confirmation of the pueblo lands, but the objection was overruled and an exception noted.

The plaintiffs then offered in evidence certain documents relative to the confirmation to the city of San Francisco of its pueblo lands, and also the first survey of those lands under the decree of confirmation, which survey, made by deputy surveyor Stratton, approved by the surveyor general of California and confirmed by the Commissioner of the General Land Office, did not include the premises in controversy. They also produced a witness who testified that the premises were below ordinary high-water mark, as laid down on such survey. To the introduction of this survey as evidence, and to the parol proof of the location of the premises with reference to the line of high tide, as delineated thereon, the defendant objected on the ground that the survey was not matter of record, that it did not tend to prove, as between the parties hereto, where the line of high tide was, being res inter alios acta, and that it had been cancelled and superseded by another survey subsequently made in accordance with instructions of the Secretary of the Interior. The objection was overruled, the survey was admitted in evidence, and the defendant duly excepted.

The plaintiffs also produced in evidence certain maps made by persons in official station in 1853, 1857, 1859 and 1864, showing the line of high tide at about the same line as on the aforesaid Stratton survey. Objections were made to these maps as evidence, but they were overruled and exceptions were noted.

The plaintiffs also introduced in evidence the original minutebook of the board of supervisors of the city and county of San Francisco, and read a resolution passed by the board on the 23d of December, 1878, that no appeal should be taken from the action of the Commissioner of the General Land Office

Statement of the Case.

approving the Stratton survey. Objection was made to this evidence, but it was overruled and an exception was noted.

The plaintiffs then offered in evidence the deeds from the state land commissioners to one Ellis, (from whom they derived their title,) together with the letter of the attorney general of the State, advising the board to dispose of all the tide lands not in litigation, and where they could ascertain to whom the state title ought to go, in pursuance of the tideland acts. The deeds embrace the property in dispute. The defendant objected to these deeds on the ground that they were incompetent, in that the board of tide-land commissioners had no power or jurisdiction to make them, and on the further ground that there was nothing to show that the board was advised by the attorney general to make such deeds. The objection was overruled, and an exception was noted. The plaintiffs thereupon rested their case.

The defendant, to sustain the issues on his part, offered in evidence the patent of the San Francisco pueblo lands, regularly issued to that city on the 20th of June, 1884, and also the plat of said pueblo lands surveyed under instructions from the United States surveyor general by deputy surveyor Von Leicht in December, 1883, which showed an endorsement of approval by the Commissioner of the General Land Office, under date of May 15, 1884, and was also endorsed as follows: “The field-notes of the survey of the pueblo lands of San Francisco, from which this plat has been made, are strictly in accordance with the instructions of the honorable Commissioner of the General Land Office received with his letter, dated November 25, 1883, as the same appear of record and on file in this office. United States surveyor general's office, San Francisco, California, January 17th, 1884. W. H. Brown, United States surveyor general for California."

It was admitted that the land in question is included within the exterior boundaries of the patent; but the patent was objected to as incompetent to show title in the city of San Francisco, as against grantees of the State of the premises, for the following reasons:

“ 1st. The State of California acquired her title by virtue of

Statement of the Case.

her sovereignty on her admission into the Union, and her title could not be overthrown by declarations of the United States made after title had vested in her.

“ 2d. That as to lands acquired by virtue of her sovereignty, the State was not the owner of a private land claim, and was not bound to present her claims to the board of land commissioners, organized under the act of Congress entitled, 'An act to ascertain and settle the private land claims in the State of California,' passed March 3, 1851, nor is she concluded as to her rights by not presenting them as provided in section 13 thereof, nor by any decision on the claim of another person. The act did not apply to her or her property.

“ 3d. The only authority for the patent was a decree of the United States Circuit Court, which court was not vested with jurisdiction over the State or the property of the State, although it was vested with jurisdiction over natural persons and corporations. Neither the decree nor any proceedings under the decree could affect the title of the State or furnish evidence against her.

“4th. The State was not a party to the record in the case of The City, &c. v. The United States, nor is she affected as a natural person or corporation would be by a failure to attend before the United States surveyor general and object to a survey, as provided in section one of the act of Congress approved July 1, 1864, and entitled • An act to expedite the settlement of titles to lands in the State of California. But, being a stranger to the entire record and proceeding, the patent is not competent evidence against her or her property.

“5th. The first survey is the final adjudication of the land office of the location of the premises described in the decree, because

" (a.) In confirming a survey under the acts of March 3, 1851, and July 1, 1864, the Commissioner acts in a special judicial capacity, and his decisions are not appealable to the Secretary of the Interior.

"(6.) The city refused to appeal, and this refusal appears in the record, and there was no appeal.

(c.) The first confirmed survey is better evidence of the

Statement of the Case.

location in this case than the patent, and the patent is void to the extent that it departs from it.

(d.) The decree confirms to the city only the land above or within the ordinary high-water mark at the date of the conquest.

“The premises are outside that specific boundary, and, as the surveyor general had no authority under the acts of Congress to survey, nor the land office to patent, land not confirmed to the claimant, the decree controls, and the patent is void to the extent that it departs from the specific boundary given in the decree.”

The evidence was admitted, but the referee refused to find thereon in favor of the defendant, and an exception was noted.

The defendant also introduced in evidence the judgment roll in a case tried in a state court between this defendant and the city and county of San Francisco, in which a judgment was rendered in his favor in November, 1868, quieting his title to the premises.

That was all the evidence introduced, and upon it the referee found the material facts of the case substantially as follows: The premises in dispute are below ordinary high-water mark as the same existed on the 7th of July, 1846, (the date of the conquest of Mexico,) and are below and outside of a survey of the pueblo claim made by deputy surveyor Stratton, and approved by the surveyor general of California on the 13th of August, 1868, and confirmed by the Commissioner of the General Land Office, November 11, 1878, but are within a subsequent survey of the pueblo, made by deputy surveyor Von Leicht in 1884, which was not approved by the surveyor general of California, but was certified by him to have been made in accordance with orders from the Secretary of the Interior. The patent for the pueblo lands was issued on this second survey, and recited, among other things, the proceedings had in relation to the perfecting of the pueblo title, including the decree of confirmation and the confirmatory acts of Congress. The plaintiffs derived their title from the State through certain mesne conveyances, regular and legal in all

Statement of the Case.

respects, while the defendant did not connect himself with the title of the State.

Upon the foregoing facts the referee found as conclusions of law that

(1) The State of California upon her admission into the Union, September 9, 1850, became seized in fee of the premises in dispute;

(2) This title subsequently became vested in the plaintiffs, by virtue of certain conveyances described ;

(3) This title of the plaintiffs was subject to defeat by the decree of the Circuit Court confirming the claim of the pueblo, but the premises being without the confirmed survey of 1878, and outside of the specific boundary given in the decree, remained the property of the State;

(4) “ The second (Von Leicht) survey was illegal because it was not approved by the surveyor general of California, .no appeal was taken to the Secretary of the Interior from the decision of the Commissioner of the General Land Office approving the prior survey; and because the second survey was not retained in the office of the United States surveyor general for ninety days, and no notice of the same was given to enable parties in interest to file protests, as required by law; and because, in approving said prior survey, said Commissioner of the General Land Office was acting in a judicial capacity and his judgment thereon is not reversible and was not legally reversed”; and,

(5) The description of the premises contained in the patent being in excess of the premises described in the prior survey and in the decree, the patent, to the extent that it covered land of the State not confirmed to the claimant, was invalid, and did not operate to convey the State's title to the premises in controversy.

The judgment of the Supreme Court of the State was based upon substantially the same grounds as that of the referee; and the correctness of the propositions of law involved therein is drawn in question by this writ of error.

To understand precisely the exact nature of the questions involved in this case a somewhat more detailed statement of

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