In Ferris v. Coover, (10 Cal. 589) and the series of cases following it, the rights claimed under Mexican grants have been placed on a firm foundation, and are no longer questioned in the Courts.Summary of this case from Lathrop v. Mills
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Appeal from the District Court of the Sixth Judicial District, County of Sacramento.
These were actions of ejectment, to recover the possession of two lots, situated in the city of Sacramento. By the agreement of parties, they were tried together in the Court below.
On the trial, John A. Sutter was examined as a witness, and he testified that he arrived in that part of California where the city of Sacramento is situated, in August, 1839; that he received, in June, 1841, from the then Governor of California, Juan B. Alvarado, a grant of eleven leagues of land; that the grant was accompanied with a map; that the map and grant were both delivered by him to John S. Fowler, in 1850; the map produced and subsequently offered in evidence, (and of which the one given in this statement of the case is substantially a correct copy,) was a true copy of the original map accompanying the grant, so far as he could recollect; that previous to applying for the grant, he had a survey of the land made by Capt. Vioget; that the southern boundary of that survey was below Sutterville (a place some miles south of the American River); that he was living, at the time of the survey, at the Fort; that he had stock, and cattle, and from fifteen to twenty men with him; that between the issuing of the grant and the year 1848 he had 1,500 head of cattle, 2,400 head of horses, a flock of sheep, the buildings where the Fort stands, improvements on the American River, an establishment at Sutterville, a blacksmith's shop, carpenter's shop, shoemaker's shop, a tannery, distillery, and saddler's shop; that he took possession of the land with the permission of the Mexican government, and afterwards held the land under his grant.
John S. Fowler, who was examined as a witness, testified that the original grant and map were destroyed by fire in October, 1851; that he had possession of them at the time of their destruction; that the grant had been copied in the book of records of Sacramento County; that the record was written by one Clough; that the witness and Clough compared together, the day following the recording, the original grant with the record, and found the record correct; that the map and grant were connected together with a seal.
The plaintiff then offered in evidence the record of the grant, to the introduction of which the defendant objected on several grounds, but on the appeal relied upon the following: first, that the grant was imperfect, inchoate, and incomplete; and, second, that the grant does not include the land in controversy; but the Court overruled the objection, and allowed the record of the grant to be read, the original being destroyed, and the defendant excepted.
The petition upon which the grant was issued was also read in evidence.
The deposition of John J. Vioget was had in the case. He testified that he was a practical surveyor, and surveyed a tract of land for John A. Sutter, in or about the year 1841; that the said tract commences on the Sacramento River, at the southern part of a laguna, or pond, about three or four miles south of the American River, and runs thence east along the shore of the laguna; that he made the survey with a compass, chain, and sextant; that Captain Sutter ordered him to make the southern line of the survey south of the above-mentioned laguna; that he made for Sutter two plats, or maps, one of which Sutter filed at Monterey with his petition to the government for a grant, and the other Sutter kept; that the one Sutter kept was a correct copy of the one filed at Monterey; that the survey made by the witness was preparatory to the grant of the land from the government; that, owing to some defect in the artificial horizon used in determining latitudes, the latitudes given on the map made at that time are not correct, and the error, whatever it may be, affects all the designations of latitude on the map; that the southern boundary line, which, according to the map, lies in latitude north 38 [degrees] 41' 32", was the estimated latitude of a point of land on the east bank of the Sacramento River, on the high ground southward of the laguna, below a town called Sutter, and is distant about four and one-half miles, in a southerly direction, from Sutter's Fort; that the line marked 38 [degrees] 45' 42" was the estimated latitude of the place known as Sutter's Fort; that Captain Sutter came to this country in 1839, and settled that year at " New Helvetia; " that Sutter's Fort and " New Helvetia" were one and the same place; that an exact duplicate of the original map, made by witness at the same time with the original, was placed in the possession of Sutter; that afterwards, the witness made a true copy from the duplicate for himself, on vegetable transparent paper; that the map produced (afterwards offered in evidence) is substantially correct; that the courses of the Sacramento River, from latitude 38 [degrees] 41' 32" up to its junction with Feather River, and the courses of Feather River and of the American River, as laid down on the original map, were taken by actual survey, but that the course of the Sacramento River, after its junction with Feather River, up as far as it is laid down on the map, was taken by sight from the Three Peaks; that witness made an actual survey of that portion of the tract which lies between the southern boundary and the Sacramento and American Rivers.
To the admission of the parol testimony of Sutter and Vioget, in explanation of the boundaries of the grant, and to fix the location of the land granted, the defendants excepted.
The following is a translation of the petition and grant, with a copy of the map referred to in the testimony of the witnesses:
" Most Excellent Governor of this Department:
" John Augustus Sutter, a native of the Republic of Switzerland, naturalized in the Mexican Republic, and residing in this Department, with due respect, represents to the notorious justice of Your Excellency:
" That, since he first arrived in this country, being desirous of cultivating a part of the many vacant lands which it possesses, he solicited and obtained your superior approbation to establish himself on the land which he now occupies, accompanied by some industrious families, who chose to follow him. In consequence of assiduous labor, his establishment now promises flattering hopes to himself, and advantages to the Department in general; for, stimulated by the example of his followers, industrious ideas are awakening in the other inhabitants of this country, and, at the same time, the place, from its situation, serves as a strong barrier to the incursions of the barbarous tribes to the settlements, and as a school of civilization, both to the barbarous natives, and to those subjected to the missions, who, in the long period of time that they have been under subjection, have never been useful members to society in general, as the undersigned has now the satisfaction to know that they will become, owing to his indefatigable labors.
" For all these reasons, the undersigned, in order to aggrandize his enterprise, and establish twelve families, is under the necessity of requesting of the goodness of Your Excellency, that you would be pleased to grant him eleven leagues of land, in the establishment named New Helvetia, situated towards the north, in exact accordance with the land designated on the plat* which he has the honor to accompany, not including in said eleven leagues the land which is periodically inundated with water in winter, and protesting to Y.E., and to the Mexican nation, that the existing laws of colonization, and all those connected with the subject, shall be faithfully obeyed by him. He therefore requests that Y. E., in virtue of the faculties with which the laws invest you, would be pleased to grant his petition, and, at the same time, interpose your powerful influence with the Supreme Government of the nation, for the purpose of obtaining its superior approval, by which favor the undersigned will receive a benefit, and the agriculture of the country support.
* A substantially correct copy of the plat is given on the opposite page.--Reporter.
" Most Excellent Sir,
" (Signed) John A. Sutter.
" Monterey, June 15th, 1841.
" Juan B. Alvarado, Constitutional Governor of the Department of the Californias.
" Whereas, Mr. Augustus Sutter, a native of the Republic of Switzerland, and naturalized in the Mexican nation, has, in conformity with the law of 18th August, 1824, and regulations of 21st November, 1828, asked, for his personal benefit, and that of twelve families, eleven leagues of land, on the margins of the River Sacramento, in the vacant lands of the frontiers of the North, to colonize and improve them, in the terms mentioned in said laws, to which end he has sufficiently accredited his laboriousness, good conduct, and other qualifications, required in such cases; and has already, in advance, manifested his great efforts, his constant firmness, and truly patriotic zeal, in favor of our institutions, by reducing to civilization a large number of savage Indians, natives of those frontiers; and this Government, being sufficiently informed that said lands do not belong to the private property of any individual, town, or corporation, and that, consequently, they belong to those classified in said laws;
" I have, in conformity with the powers conferred upon me, in the name of the Mexican nation, granted to said Mr. Augustus Sutter, by these presents, for himself and his colonists, the said land named New Helvetia, subject to the approval or disapproval of the Supreme Government, and of the most excellent Departmental Junta, under the following conditions:
" 1st. He may enclose it, without prejudice to the paths, highways, and privileges, particularly the traffic and navigation of the rivers.
" 2d. He shall maintain the native Indians of the different tribes of those points, in the enjoyment and liberty of their possessions, without molesting them, and he shall use no other means of reducing them to civilization but those of prudence and friendly intercourse, and not make war upon them in any way, without previously obtaining authority from government.
" 3d. The land granted to him consists of eleven square leagues, (sitios de ganada mayor,) comprehended in the extent designated in the plat which accompanies the expediente, without including the lands inundated by the impulse and currents of the rivers, its boundaries being: on the north, the Three Peaks, and latitude 39 [degrees] 41' 45" north; on the east, the margins of Feather River; on the south, latitude 38 [degrees] 49' 32" north; on the west, the River Sacramento.
" 4th. When this grant shall be confirmed, he will ask the respective magistrate for possession of the land, in order that it may be measured, according to law, the surplus being left for the benefit of the nation, for the uses which may be required.
* In the draft of the grant on file, among the archives, the concluding clause is as follows: " I therefore command that, holding this title to be firm and valid, a note of it be made in the proper book, and the expediente be forwarded to the most excellent Departmental Junta. Thus I, Juan B. Alvarado, Constitutional Governor of the Department, have commanded and required. Whereof I give testimony. Monterey, 18th of June, 1841." After 1837, the secretary did not make a full transcript of the grants, as issued, in any book of records. The draft of the grant remained on file, and from it the formal instrument was prepared, to which the Governor affixed his signature, and a minute was made of the grant, in a book kept for that purpose, giving the name of the grantee, the date of the grant, and the quantity of land granted.
" Given at Monterey, the eighteenth day of June, one thousand eight hundred and forty-one.
" (Signed) Juan B. Alvarado.
" (Signed) Manuel Jimeno, Secretary."
" A note of this decree has been made in the Book of Decrees in relation to adjudications of Vacant Lands, at folio 4.
" (Signed) Jimeno."
The plaintiff traced title to the lots in controversy from Sutter to himself. These lots are included within the survey made by Vioget for Sutter. The defendants were in their occupation at the commencement of the action. When the plaintiff rested his case, the defendant moved for a nonsuit, on the following grounds: first, that the plaintiff had not shown that the grant to Sutter includes the land in controversy; second, that the title of the plaintiff was shown to be imperfect and inchoate; and third, that there was not sufficient evidence of prior possession to enable plaintiff to recover. The motion was overruled, and the defendants excepted.
One of the defendants, Krause, offered in evidence a tax-deed of a portion of one of the lots in suit, which was rejected by the Court. The deed was executed to one Madden, by the Sheriff of the county, upon a sale for unpaid taxes, for the year 1853. The deed was not under seal, and contains in its recitals the following extract from the assessment-book:
It was not assessed to the owner, occupant, or unknown owners. The defendants then offered to show that if plaintiff ever had, by himself or any of his grantors, any possession of the premises in controversy, actual or constructive, he had abandoned that possession for upwards of six years; but the Court refused to admit the evidence, and to the ruling the defendants excepted.
The defendants had made improvements upon the lots occupied by them, to the value of several thousand dollars.
The Court gave to the jury the following instruction:
" If you believe, from the evidence, that the lots in controversy are embraced within the boundaries of the map introduced before you, in this case, and that the map is a correct copy of the original map delivered to John A. Sutter, at the time he got his grant from the Mexican government, the plaintiff is entitled to recover. You must take the grant and map together, and if you believe the land in this suit is within the grant, as explained by the map, you will find for plaintiff."
To this instruction, the defendants' counsel excepted.
The defendants' counsel then requested the Court to give the jury the following instruction, which the Court refused to do, and to the refusal exception was taken:
" If you find that plaintiff or his grantors, or some of them, stood by and saw defendants making valuable improvements, and did not interfere, nor give any notice of an adverse claim to the lots, then you are entitled to find for the defendants."
Other exceptions were taken by the defendants, on the trial, but they were either expressly waived, or not pressed on the appeal. The exceptions stated raise all the questions argued on appeal.
The jury found that the plaintiff was entitled to the lots in controversy and to their possession, and also found the value of the improvements placed upon the lots by the different defendants.
The Court rendered judgment for the plaintiff, without regard to the finding in respect to the improvements. A motion for a new trial was made and overruled, and the defendants appealed, both from the judgment and from the order denying a new trial.
I. The defendants objected to the introduction of the grant to Sutter, because, first, it was imperfect, inchoate, and incomplete; second, it does not include the land in controversy in this suit.
The questions of law raised in this connection are:
1. Is an unconfirmed, floating concession evidence of legal title in the grantee of sufficiently high character to sustain ejectment?
2. Can parol testimony be introduced to vary a written instrument?
3. If parol testimony may be introduced to explain the grant and map, is there any such explanation of terms thereof as will warrant a recovery?
The first of these questions is discussed and decided in the cases of Leese v. Clark, (3 Cal. 16,) and Vanderslice v. Hanks, (Id. 27,) wherein it was decided that a mere concession, not approved by the Departmental Assembly, would not support ejectment.
This doctrine has never been overruled by any decision of this Court.
The matter was referred to by Murray, C. J., in rendering the decision in Gunn v. Bates, (6 Cal. 263,) and his dictum indicates that on that question his opinion has been changed by the decision of the United States Supreme Court, in Fremont v. The United States, 17 How. 542.) But Judge Terry, who alone united in rendering the decision in Gunn v. Bates, expressly dissents from the opinion of the Chief Justice, and places his assent to the decision on a different ground.
So far as the decisions of our own Supreme Court are concerned, the law is settled that such incipient concession will not support ejectment.
If this dictum of the Chief Justice unsettles the law, the question may be regarded as an open one, and we will proceed to examine how stands the law:
1. By our statutes;
2. By common law, and the course of decisions of our Courts of last resort.
By the statute 1856, p. 54, § 1, all lands in this State are, in our Courts, to be regarded as public lands till the legal title is shown to have passed from the Government.
By section three of that Act, it is provided that the rights of parties claiming title under patents shall be deemed to begin at the date of the patent. These provisions are made in view of the law as decided by this Court in Vanderslice v. Hanks, and with the evident intention on the part of the Legislature to establish a rule of decision for the Courts in such cases.
By the first section, it is required that the party plaintiff shall show that the legal title has passed. How do legal titles pass? Under our statute, by deed signed by the party grantor. But when the Government is the grantor, it must be shown by proper instrument, or it may be by a law containing words of grant. But the whole instrument must show that it is the final document. An incipient interlocutory paper will not pass title. Such a concession, then, will not show title to have passed even from the Spanish Government. But the statute says the showing must be that the title has passed from the Government. What government? Evidently the Government of the United States.
By the Act of 1851, organizing the Board of U.S. Land Commission, it is provided that all land titles in this State shall be passed in review before that commission, and that all land shall be deemed public the title to which shall not be confirmed under that law. That Act provides for the issuance of a patent from the United States to the claimant for all lands the title to which shall be confirmed.
In view of this state of facts, our Legislature established the rules above stated, and they seem to contemplate that our Courts are to consider the title to lands in this State as held in abeyance by the Government until the patent issue, and the right of the claimant is deemed to accrue at the date of the patent.
There is less hardship in this rule than to hold the opposite doctrine, that even before the claimant himself knows where his land will be, he can prevent the settlement of a much larger tract than he claims, by suing and recovering of parties found thereon. The hardship to claimants resulting from the rule for which we contend, does not occur from any act of parties holding adversely. It results from the indefinite, imperfect character of the interest the claimant possesses. Thus it is with all imperfect rights. The party must perfect them before he can sue and recover.
This is precisely what the claimants of land in this State, under Mexican grants, are now proceeding to do. But why is John A. Sutter now asking the Government for a patent, if his title is good without it? If it is now perfect, a patent will not add to its perfection, and the proceedings before the United States Court, to obtain a patent, are a farce.
II. But it is said that the decision of the U.S. Supreme Court in the Fremont case has overruled the previous decisions of that Court on that point, and established a different rule.
That Court have not, in terms, overruled their decisions in former cases, arising under the Louisiana purchase. They have, however, taken a new departure, but they predicate their change of ruling on the differences and want of uniformity between the cases.
It is said that the late decisions of the U.S. Supreme Court go to the extent of the establishment of a rule, that concession passes complete title to the land mentioned in the grant. I submit that such is not the rule established.
In stating this question, the Supreme Court say: " The point to be decided is, whether the grant vested in Alvarado any present and immediate interest."
Chief Justice Taney, in delivering the opinion of the majority of the Court, avoids stating that the concession vested a title to the land in Alvarado. But the decision is, that he, by virtue of the grant, acquired a vested interest in ten leagues of land, which our Government was bound to respect and perfect, and the Court say: " If, at the time the sovereignty of the country passed to the United States, any interest, legal or equitable, remained vested in Alvarado or his assigns, the United States are bound in good faith to uphold and protect it." Why refer, in that case, to equitable claims if the grantee had legal title? Why the proceedings at all, in that Court, if Fremont had legal title which could be enforced in our local Courts? The Court, in effect, admit that Alvarado had not legal title when they say that if any other person within the limits when the quantity granted to Alvarado was to be located, had afterwards obtained a grant from Government by specific boundaries, before Alvarado had made his survey, the title of the latter grantee could not be impaired by any subsequent survey of Alvarado. Now, the idea of a grant is inseparable from the idea of the thing granted. If the thing granted is not ascertained, whatever rights may exist in equity, the grant will be void at law. (See, on this point, 13 Sme. and M. 381; 4 Phill. Ev. C. and H.'s Notes, 526; 4 Mass. 205; 4 Dev. 373; 13 Mo. 430; 1 Cow. 285; Johnson v. Shelton, 4 Ire. Eq. 85; 4 Phill. Ev. C. and H.'s Notes, 526.) And a distinction is evidently drawn between cases where a government is a party, and where the litigants are private persons. See case in 4 Ire. supra, where the doctrine seems to be held that while the government is holding out inducements to settle, a void description may be corrected or made operative; but that the legal title still rests in government, and may be passed to a subsequent grantee, who would hold against a prior grant with defective description.
To hold that Fremont had a title on which he could recover in ejectment before he got his patent, would establish the following absurd propositions:
1. A person could hold the legal title to land not susceptible of ascertainment by the terms of the grant under which he claims; or,
2. He would hold the legal title to the whole land within certain boundaries, when the title under which he holds limits the quantity, and reserves the whole surplus.
3. It would establish the doctrine that rights vested under the grant could be divested by subsequent survey and location, according to the terms of the grant.
But full force and effect can be given to the Fremont decision, and still maintain intact the rules of law heretofore held to govern such cases. The Fremont case does not decide that Fremont had legal title to the tract called " Las Mariposas." It decides he had a vested interest in so much land, which amount of land he could take and receive the legal title therefor, by doing the following acts:
1. He must procure a confirmation of his grant;
2. He must procure a survey to be made by a proper officer;
3. He must apply for and take his patent, after which have the legal title to the land described in his patent.
III. The Judge, in this case, instructed the jury that if the land in controversy was within the map put in evidence, they must find for the plaintiff. Now, the amount of territory represented on that map is not less than five hundred square leagues.
Is it possible that under a claim of eleven leagues, that extent of territory can be held?
If it cannot, then there was error in the charge of the Court, and the judgment must be reversed.
IV. The particular point now under discussion, " Are the rights of the original grantee, John A Sutter, perfect and complete?" cannot be held in the affirmative without deciding that the right thus complete comprehends the full extent of the description, because no segregation of the land granted from the public domain has as yet been effected.
The eleven leagues granted lie, as yet, within a larger tract, any eleven leagues of which may be taken in satisfaction of the grant; and until the location is definitely made, the right of the claimant is incomplete.
V. How is this segregation to be effected? Clearly in the manner pointed out by the Act of 1851.
I do not discuss the question whether a legal title may be passed, under Mexican rule, by a concession, approved by the Departmental Assembly. That does not arise in this case. But it clearly does not pass without segregation, and the Court below holding the opposite, such ruling is error.
VI. But even if this Court should hold otherwise, the defendants are still entitled to judgment.
On the trial below, the plaintiff, to make out his case, offered in evidence an original grant to John A. Sutter, dated June 18th, 1841, for eleven leagues of land on the margin of the River Sacramento, and more particularly described as follows: " The land, of which donation is made to him, is of the extent of eleven square leagues, as exhibited in the deseno (sketch) annexed to the proceedings, without including the lands overflowed by the swellings and currents of the rivers.
" It is bounded, on the north, by the Three Peaks, (Los Tres Picos ,) in 39 [degrees] 41' 45" north latitude; on the east, by the margins of Feather River; on the south, by parallel 38 [degrees] 49' 32" of north latitude; and on the west, by the river Sacramento."
The above description contains a reference to a sketch, and a copy of a map is introduced in evidence.
By reference to the deseno, it will be seen that the words of description confine the land granted to the territory between the Sacramento and Feather Rivers and certain mountains forming prominent and well-defined and well-known landmarks, and the land sued for lies without, south of, and some twelve or fourteen miles distant from, the most southern boundary of the land described in the grant.
The Court admitted the parol testimony of Vioget and Sutter, to vary the terms of description contained in the concession, against the objections of the defendants, and they excepted.
In parol testimony admissible to vary a written instrument?
The authorities answer the above question in the negative. (Johnson v. Shelton, 4 Ire. Eq. 85; 2 Phill. Ev. 300, 282, 285, 326, 332, 534; 3 How. Miss. 230; Kea v. Robinson, 5 Ire. Eq. 373; 1 S.C. St. 300; 4 Mass. 196; 18 Johns. 107; 1 N.H. 93; Mesick v. Sunderland , 6 Cal. 297.) And known and established monuments control in matters of description. (4 Bac. Abr. 525; 2 Mass. 380; 2 Caines, 367; 1 Johns. 157; 2 Johns. 37; 4 Phill. Ev. C. and H. Notes, 548.)
The counsel for respondent cites Conn et al. (1 Pet. C. C. 496,) as establishing the familiar rule that courses and distances in a survey are controlled by fixed and permanent monuments. That rule undoubtedly applies to proper cases. But here was no survey, except for exploration, and no course or distance set down by Vioget. But there are natural, fixed, permanent, unmistakable objects set down in the map, which are referred to by, and adopted into the grant, forming the description of the line within which the eleven leagues of land granted must be located. These monuments consist of mountains and rivers, and they cannot be disregarded or rejected as surplusage.
Courts of Law never supply words of description, but they frequently reject, if different words of description conflict and are inconsistent with each other. Those words which refer to objects less fixed, and liable to be mistaken, in such cases would be rejected, and if, after rejecting those words as surplusage, enough remains to fully identify the land, the Court will uphold the deed, and give effect to the description. Now, apply this rule to the facts in this case, proved. The Feather and Sacramento Rivers, flowing together, form two sides of a triangle; a line drawn east and west, through Los Tres Picos, forms the third. Here the boundary is complete, after rejecting all other words of description as surplusage.
It is said, by the respondents, that a mistake was made in this matter of description; that Sutter intended to petition for land lying south of the American River, and that the Governor intended to grant the land in dispute. How is this to be ascertained? The answer is plain: by the words of description contained in the grant; and parol testimony is not admissible to vary the words. (See authorities above cited.)
Witness Vioget testifies that he made an exploration of the country for Sutter, in the latter part of 1840 or fore part of 1841, beginning with such exploration at a point on the Sacramento River some six miles south of the land in dispute, and continued his explorations till he was able to make the deseno offered in evidence. This, however, was before the grant was made.
Did the survey give any right? Certainly not; it was a private act.
What did give Sutter any right in the soil? Not the survey, for that was the act of claimant; not the act of making the map, for the same reason. To the grant, then, we must refer for origin of title, and so far as the map was adopted as a part of the grant by way of description, so far it is important in this case.
But for the purpose of wresting the words of the grant from their proper purport, to suit the views of interested parties, a theory is advanced which, if adopted, overturns the plainest rules of law.
It is insisted that the actual residence of Sutter must be included, and that the name " New Helvetia" gives locality; that a survey made before the grant identifies the land and overrules the words of description. The name of New Helvetia had no locality, except that given by the grant, and this clearly and explicitly expressed, limited, and confined, by specific words of description.
The argument of the counsel for the respondent proceeds upon the hypothesis that a line of latitude must be held to be a more permanent landmark than certain fixed objects on the surface of the earth, and that the line of latitude is in conflict with the other calls in the concession, or that the plaintiff must recover. This is not a fair statement of our theory. There is no real or apparent inconsistency or mistake in the grant, and it is only when the respondent desires to float a claim confined by the terms of the concession between the Sacramento and Feather Rivers, to a point some twelve miles south of the junction of those rivers, that any difficulty arises.
By examining the deseno, it will be seen that the parallel of latitude, 38 [degrees] 49' 32", cuts the Sacramento River at or near its junction with the Feather River. This is the true location of that line. The concession and map are to be construed as one instrument, and the deseno can only be used by way of description. That plat exhibits a territory lying between the foothills of the Sierra Nevada and the Coast Range; it then lays down the Feather and Sacramento Rivers, and the Butte Mountains; and the grant, referring to those objects, says the land granted lies between them--the latitude does not conflict with those words. In effect, the whole instrument declares that the land granted is in California, in the Department of the North, inside of the boundaries contained in the map, and further limited between two rivers and a mountain named; and, with the same show of reason, might we urge that the land granted lies on the west side of the Sacramento, as on the south side of the American.
It was urged, by counsel for the respondent, that the name of New Helvetia must control all other locative calls.
It is evident this must depend upon the questions under the circumstances:
1. Whether the locative calls in the concession, taken as a whole, are inconsistent; and if so,
2. Whether, under the rule, more force and effect should be given to the term New Helvetia than to the rivers and mountains therein mentioned in locating the land.
The first of these questions has been partially discussed, and, indeed, it would seem to require no argument to prove that Sacramento and Feather Rivers are more certain in their location than the lines of a tract of land called New Helvetia, and that full force can be given to all the calls. The concession was dated June 18th, 1841. At that time there was no place named New Helvetia, having definite location. The name must be taken as meant in the instrument, and as explained by other words therein. There may have been other places called New Helvetia, and probably the fact was, that about the time he took his grant, Sutter intended to designate the whole of North California by the name New Helvetia. But the government was not authorized, or did not desire, to grant him that entire territory, and accordingly the title was made out for eleven leagues in his establishment.
Now, it is evident that the entire of that establishment was not granted, otherwise there would have been words conveying the whole, and no words would have been inserted limiting the quantity to a particular number of leagues, within certain definite locative calls, containing less land than the whole establishment.
The question of intention must be determined by the language of the instrument, and cannot be sought for in evidence aliunde, particularly when the instrument to be construed--as in this case--contains no patent ambiguity. If the foregoing remarks are correct, then the term " New Helvetia" was, at the date of the grant, too indefinite to give location to any eleven leagues of land. A grant of Blackacre might be good, if it was a certain piece of land having fixed boundaries, but a grant of eleven acres in the Blackacre tract, when that tract contained greatly more than eleven acres, would be void, as against third parties, at least; but if the conveyance were for eleven acres in Blackacre, bounded definitely by natural objects mentioned in the deed, those objects would locate the land conveyed, and as well might the purchaser claim land outside those definite calls, as for the plaintiff in this case to claim the land in dispute.
VII. The defendant, A. F. Krause, offered in evidence a deed from the Tax Collector, for State and county taxes for the year 1853, to James F. Madden, and from Madden to said Krause.
The plaintiff objected, because by the deed it appears that the property was assessed to unknown owners.
Section twenty-five of the Revenue Act of 1853 provides that " if the owner or owners of any property liable to taxation shall be unknown, it shall be the duty of the Assessor, or his authorized deputy, to make a list thereof from the best information he can obtain, and attach thereto such valuation as he may deem just, and enter the assessment on his roll; and the assessment thus made shall have the same force and effect as though it had been made by the owner."
In the same Act it is provided that " if the owner shall fail to redeem a sale for taxes, the Sheriff shall execute a deed of conveyance in fee-simple to the purchaser or purchasers, or assigns thereof, for said real estate and improvements, acknowledging said deed before some person authorized by law to take acknowledgments of deeds, and the sale shall become absolute, and said deed shall be prima facie evidence, in all Courts of this State, of the conveyance of all right, title, and interest in said property owned by delinquent at the time of sale."
The general design and scope of the Act referred to is to enable the Assessor to levy and the Sheriff to collect the taxes assessed. For this purpose, a deed made by the Collector is made prima facie evidence of title.
The only question raised by the exception of the plaintiff is, does the fact that the Assessor listed the lot to unknown owners avoid the force of the deed?
There is a direct provision in the Act quoted above, authorizing such assessment in cases where the owners are unknown. Unknown to whom? Answer: to the Assessor.
Now, in this case, the fact that the owner and occupant were unknown appears by the assessment, and the Assessor acted within the strict letter of the law in thus listing the lot.
The requisition to list it in the name of the owner is directory, and only applied to cases where the owner or occupant was known to the Assessor; and, even if the provision is not strictly proved, the deed is valid. (7 Barb. 133, 141; 21 Pick. 64; 1 Hill, 130; 19 Pick. 436; 20 Id. 418; 3 Mass. 230; 21 Id. 75; 1 Gilman, 160.)
Den, on demise of Martin v. Lucey, (reported in 1 Murphy's Law and Eq. 311,) is a strong case, where it is held, inter alios, that it is not incumbent on a purchaser of lands, sold for taxes acknowledged to be due, to show on the trial of ejectment against him by the person who was bound and failed to pay the taxes, anything more by way of defense than the Sheriff's deed for the land so sold.
In Read v. Goodyear, (17 S. & R. 350,) it is held that lapse of time strengthened a tax-title; and failure to redeem might go to the jury as evidence of abandonment; and a tax-sale is good, though the property be taxed and sold under a wrong name. (1 Caines, 92; 11 Wend. 95; Met. 470; 20 Pick. 418.)
In a tax-sale, the title of the real owner, whatever it may be, passes to the purchaser, whether assessed in his name or a stranger's, or whether the person in whose name it is assessed had any title or not. (See 1 Watts & S. 166, 175; 16 Serg. & R. 352; 9 Watts, 323; 7 Id. 490; 2 Id. 396; 5 Id. 288.) Even if the Assessor might have ascertained the name of the owner or occupant, his neglect to do so does not render his assessment void. (7 Barb. 133.)
The authorities quoted sustain the doctrine that Courts will not inquire into every neglect of the Assessor. They will not, it seems to us, in this hold that the fact existing that the Assessor did not find the owner, where by further search he might have made the discovery, will vitiate the whole proceeding. The Revenue Act authorizes an assessment to unknown owners, and if the owners were unknown, it still passes their title. The authorities cited prove that the title passes by sale for taxes, even where the wrong person is named as owner. Why, then, under statute authorizing its assessment to unknown owners, may not a sale [ILLEGIBLE WORD] title?
I. Defendants, to sustain their defense, offered to prove an abandonment of the locus in quo, by the plaintiff or his grantor, but the Court ruled the evidence inadmissible. To which ruling defendants' counsel excepted.
An abandonment may, as we contend, be set up as a defense in ejectment in all cases where the plaintiff does not rest his claim upon actual title. Indeed, such was the view entertained by the Court below, but that Court held that plaintiff could recover upon actual title, and not upon prior possession acquired under color of title.
If, on the contrary, plaintiff did not recover upon actual title, but only upon possession obtained under color of title, the defense of abandonment can be sustained.
Plaintiff certainly did not recover upon actual title, because he sued on a Mexican grant, against which, among other things, an outstanding title of the United States was set up, and the tribunals of the United States have not yet finally adjudicated the questions involved in the case.
II. The parties through whom the plaintiff claims stood by and saw valuable improvements made upon the premises without disclosing their title; and as they would be estopped from setting up title against the occupant, so is the plaintiff. (Sayles v. Smith, 12 Wend. 57.)
The general principles relating to abandonment and estoppel may be set forth as follows:
Where a party makes any statement, or does any act, which would operate as a fraud upon a third party, or which has induced a third party to act upon it, he is estopped from denying it. (2 Smith's Lead. Cas. 531; Stephens v. Baird, 9 Cow. 274; Dewey v. Field, 4 Met. 384; Presbyterian Congregation v. Williams, 9 Wend. 148; Pickard v. Barrett, 6 Adol. & El. 469.)
So, where the owner of property sanctions a purchase from a third party, (as, for example, the purchase of defendants under their tax-titles and subsequent mesne conveyances,) whether such sanction be expressor by implication, he will be estopped from setting up his own right to defeat the purchaser. (2 Smith's Lead. Cas. 532; Lee v. Porter, 5 Johns. Ch. 268; Hatch v. Kimball , 16 Me. 146; Storer v. Barber, 6 Johns. Ch. 166; Raugely v. Spring , 21 Me. 137; Pickard v. Barrett, 6 Adol. & El. 467; Carr v. Wallace, 7 Watts, 394; 1 Mart. & Y. 333.)
Where the owner stands by and sees valuable improvements made on his land, without giving notice of his title, he will be estopped from setting up his title against the occupant. (Hamilton v. Hamilton, 4 Barr, 194; Robinson v. Justice, 2 Penn. 19; Wendell v. Van Rensellaer, 1 Johns. Ch. 354; Higginbotham v. Barrett , 5 Id. 589; East India Co. v. Vincent, 2 Atk. 83; 1 Bay, 239; Gray v. Bartlett, 20 Pick. 193; Shannon v. Broadstreet, 1 Scho. & L. 73; 1 Story's Eq. Jur. 385, 388, 389.)
For a further and fuller exposition of the doctrine of abandonment and estoppel, see Cluggage v. Lessee of Duncan, 1 Serg. & R. 122; Whitney v. Wright, 15 Wend. 176-178; Atchison v. McCulloch, 4 Watts 13; McDonald v. Nulbollan , 5 Id. 175; Jackson v. Walker, 7 Cow. 641; 1 Greenl. Ev. 207.
Inthe case of Whitney v. Wright, (15 Wend. 178,) which is very similar in principle to the present, the Court decides that the evidence of abandonment ought to go to the jury. The Court further holds the following doctrine:
" If the occupant abandon the possession, or, what is the same thing, suffer it to pass into the hands of a stranger, without any effort, within a reasonable time, to regain it, or any excuse for the omission, the original presumption in favor of his title must give place to another presumption in favor of a better right in the new occupant."
Applying the principles established by the case just cited, to the case at bar, it follows, conclusively, that the Court below erred in excluding the question of abandonment from the jury, and in ruling out defendants' evidence on that point.
III. Conceding, for the sake of argument, that defendant has failed to make out a defense, and that plaintiff is entitled to an affirmance of the judgment rendered in the Court below, yet still, under the equitable jurisdiction of this Court, defendant should be allowed a new trial, for the following reasons:
The effect of affirming the judgment of the Court below, without any modification, would be, or might be, to give plaintiff the possession of improvements erected by defendants in good faith, in ignorance of plaintiff's claim, of equal value with the land, and worth in round numbers, $ 5,000. It is true that defendants might have resorted to an equitable action, or set up an equitable defense in the Court below for relief quoad their improvements, thereby invoking the aid of the Court of Chancery, and their neglect to do this might be construed as a degree of laches which justifies the loss of their improvements. But it will be remembered that when this action was begun, and while it continued pending in the Court below, there existed a statute of our State (supposed to be constitutional until this Court recently decided to the contrary) which permitted defendants to be allowed the value of their improvements, and they, therefore, leaning as they did upon this statute, and setting up a claim to its benefits in their answer, and assuming it to be the law of the land, in the absence of any decision to the contrary, had no reason to resort to the powers or jurisdiction of the Court of Chancery, which could give them no further relief in this behalf than what the then prevailing statute expressly guaranteed to them.
As the decision of this Court, declaring the statute in question unconstitutional, has been rendered since the trial of this case at law, and shuts them out of the relief which the jury allowed them on the trial, viz., a proper compensation for their improvements, it is but right that the case should be sent back to the Court below for a new trial, so that defendants may amend their answer in such wise as to avail themselves of the equitable defenses which this Court must see they possess.
John H. McKune, for Appellants.
J. W. Winans, also for Appellants.
Thomas Sunderland, for Respondent.
E 70 No. 30
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of S 70
2 and 3
I. Two questions, of great practical importance, arise in this case:
First --Does the grant to Sutter confer title sufficient to support the action of ejectment?
Second --If so, does the grant cover the premises in controversy?
The other questions are of minor importance, and will be noticed hereafter.
1. In Leese v. Clark, (3 Cal.) and Vanderslice v. Hanks, (Id.) this Court held that a mere grant of land, by a Governor of California, while under the Mexican government, and before the approval of the Departmental Assembly, conveyed an inchoate title only, and would not support an action of ejectment.
These decisions were founded upon the supposition that the condition, as to the approval of the Departmental Assembly, was a condition precedent, and no such approval being proved, the legal title was held to be in the United States.
In the case of Fremont v. The United States, (17 How. 542,) the Supreme Court of the United States decided all the conditions of the grant to be subsequent. If the conditions be subsequent, then the estate became absolute in Sutter the instant the grant was made. (See 2 Blk. Com. 157.) In the case of Fremont, above cited, the Court, on page 558, say: " The words of the grant are positive and plain; they purport to convey to him a present and immediate interest." If there was a present and immediate interest conveyed, did not the right to possess and enjoy result as a necessary consequence? What present right or interest was conveyed, if a mere intruder might dispossess the grantee? What interest, less than possession and the right of possession, can be conveyed?
This action is merely a possessory action, and many of the rules laid down by Courts, as to the kind of title which alone will support ejectment, are inapplicable to our present action for possession. It is not an action of right to determine the title. The simple question is, who has the better right to the possession, the plaintiff or defendant? If, then, the grant was only a mere license to Sutter, to take and hold possession of the land granted, it gave him the right to maintain an action for possession against all the world, except the grantor, entering after condition broken, or a party holding the legal title from the government.
After the decision in the Fremont case, this Court changed the rule laid down in the cases of Leese v. Clark, and Vanderslice v. Hanks. In Gunn v. Bates, (6 Cal. 263,) the Court say: " The land belonged either to the United States or the claimant under the Mexican grant. If the Federal government accedes to the right of the grantee, not on the ground of a confirmation of a prior equitable interest, but on the ground that he held a perfect title, who shall gainsay it? Certainly not a mere intruder. It would appear strange, at least, when the Federal government had established a tribunal, with authority to decide these questions, that the Courtsof this State should be found arrayed against those decisions, questioning the rule by which she voluntarily abandoned her claim of title, and asserting for her rights which she had already disclaimed, through the solemn adjudication of her Courts. There can be no subserviency of opinion in this Court yielding to a decision made between the United States (to her prejudice) and one of her own subjects, where they alone are interested; and the interference of the judiciary of California, under such circumstances, would be Quixotic in the extreme."
In Billings v. Hall, (7 Cal. 3,) this Court again refer to the Fremont case, as having changed the rule established in the cases in 3 Cal. There they say: " The decisions of this Court, prior to the decision of the Fremont case by the Supreme Court of the United States, have prevented the holders of bona fide titles from commencing suits for the recovery of their property." The title, in this last case, is the same as the title of the respondent in the present case. From these decisions, I cannot doubt that this Court will follow the decisions of the Supreme Court of the United States. While that determination remains, the title of the plaintiff must be held sufficient to maintain this action. Since the Fremont decision, the Supreme Court of the United States have gone further, and decided, in so many words, that the grant itself confers an absolute fee-simple title, the very doctrine contended for by respondent.
In United States v. Peralta, (19 How. 348,) the Court say: " The grant by Sola," (then under consideration,) " of a portion of the tract of which Peralta had been originally put in possession, is a complete grant in fee for that portion."
Again: in United States v. Sutherland (Id. 365,) the Court say: " The patent to the claimant's mother conferred a title in fee to an estate, known by the name of 'El Cajon,' or 'The Chest.'" This language of the highest judicial tribunal of the land leaves no room to doubt what the opinion of that Court is. It is plain and to the point. It would seem that in that Court the question is no longer doubted, or even discussed; for the quotations above contain all that is said upon the question. It is true that, in the case of Sutherland, there was the approval of the Departmental Assembly, but they give to such approval no importance, and speak of the patent(grant) which issued prior to the approval of the Assembly. No title or evidence of title issued after the approval; none seems now to be considered necessary.
As a matter of argument not easily answered, I refer the Court to the opinion of Justice Heydenfeldt, in Vanderslice v. Hanks (3 Cal. 27).
Conceding, however, that the legal title did not pass, still the plaintiff is entitled to recover. Some kind of title or right did pass. This is not disputed. Whatever right Sutter had, by virtue of his grant, was protected by the treaty between the United States and Mexico. Prior to the treaty, Sutter had the undisputed possession of the land granted, claiming title to the same. No one held adversely, or claimed to do so. There had been no forfeiture of this right to the possession by Sutter; no regranting of the land to another; no denouncement by a third party; no act by the grantor or grantee, during the continuance of the Mexican government, evidencing an intention on the one part to resume the possession, or on the other to abandon the same. The actual possession, then, of a part of the land, claiming under title, extended the constructive possession to the limits of the land granted, and the plaintiff must recover on his title, proved by prior possession.
It is objected, however, that the grant contained more than eleven leagues of land, and as only eleven leagues were granted, the plaintiff cannot recover. This objection is not valid, for many reasons. There is no proof that the quantity embraced within the limits of the grant exceeds eleven leagues, and the Court will not draw any such inference, unsupported by proof. The map was before the Governor when he made the grant. It is not to be presumed he was mistaken as to quantity until that fact is proved.
Again: there was reserved from the grant all lands inundated by the currents of the rivers. What quantity was or is so covered is not and cannot be known until an actual survey. But whether more or less than the eleven leagues was embraced within the lines named in the grant, can make no difference. The whole passed to the grantee. Such was declared to be the law in the case of Vanderslice v. Hanks (supra ). Although the judgment in that case was subsequently reversed, it was upon other grounds.
Again: it is a rule adopted by the Land Office Department, and one by which Courtsought to be governed, to allow the grantee, after the survey, to elect which part of the land he will take, in case there is an excess. The rule goes further, and makes a sale by the grantee before the survey an election, and the government will thus compel him to act in good faith to his grantees. The premises in controversy were sold by deed of warranty, and thus Sutter elected to take those particular lots as a part of his eleven leagues.
For these reasons, and upon these authorities, it is urged that the objection to the grant, on account of the excess in quantity of land over and above the eleven leagues, is not valid.
2. Does the grant cover the land in controversy?
The southern boundary named in the grant, 38 [degrees] 49' 32" north latitude, is located, as now ascertained, near the junction of the Sacramento and Feather Rivers, and, for this reason, it is insisted by appellants' counsel, that the grant cannot cover the locus in quo. If there were no other guide to determine the southern boundary, the latitude named would be conclusive. But in this, as in all such grants, a map accompanied the petition, and was made a part of the grant, by special referencethereto. The petition asks for the land in exact accordance with the map. The grant also refers to the map, and grants according to the same. The map, therefore, becomes a part of the grant, and, for description, must control the words of the grant. " When lines are laid down on a map or plan, and are referred to in the deed, the courses, distances, and other particulars appearing on said plan, are to be regarded as the true description of the land conveyed, as they would be if expressly recited in the deed." (17 Mass. 211; see, also, United States v. Sutherland, 19 How. 363.) The description in this last case is the land known as " El Cajon," and " the land of which grant is made is that which the map attached to the respective expediente expresses." There can be no other object in preparing a map, and it can serve no other purpose, than to describe the land granted. If the grant and map are to be construed together, it can easily be seen that there was a mistake in the latitude named in the grant as the southern boundary. At the extreme southern part of the map there is found a line crossing the river, and called a boundary-line (lindero ). This is the same word used in the grant, and translated boundary. It therefore seems clear that this line was intended as the southern boundary. It is marked latitude 38 [degrees] 41' 32". This map was before the Governor when he made the grant, but, by some mistake in drawing the grant, the figure 9 was inserted in the place of the figure 1, which mistake might easily occur.
That there was a mistake is proved by the fact that no line marked on the map answers to the latitude called for in the grant. It being proved by the grant and map that there was a mistake, parol evidence can then be introduced to correct the mistake. The thing intended to be granted is the thing granted. Greenleaf, in his note to Section 301, (Greenl. Ev.) lays down the following rules in cases like the present: " 1. The highest regard is had to natural boundaries; 2. To lines actually run, and to courses actually marked, at the time of the grant; 3. To courses and distances, giving preference to one or the other, according to circumstances." " Evidence of long-continued occupation, though beyond the given distances, is admissible." (See, also, 17 Mass. 210; 9 Cranch, 178; 7 Wheat. 7; 2 Id. 306.)
In confirming the claim of Sutter, Judge Thompson says: " The circumstances surrounding the parties at the time the grant was made, the language, both of the petition for the grant and the grant itself, show conclusively the intent and meaning of the instrument. Capt. Sutter had, some three years before, with the sanction of the Government, located himself at a place near the junction of the American and Sacramento Rivers, and had, at great expense and labor, built up an extensive settlement in that locality, which, in honor of the land of his nativity, he named New Helvetia. It was natural to suppose that he would be desirous of indemnifying himself for his trouble and expense, and of obtaining the means of remunerating the settlers whom he had induced to join him in his enterprise, by securing a title to those lands whose value had been thus enhanced by their common efforts, and on which their settlements were established. To suppose that Capt. Sutter, in soliciting, and the Governor, in granting, the land, should have intended to exclude that portion on which all his money and labor had been expended, and which was principally looked to as the reward for three years of toil, privation, and danger, in an unsettled wilderness, is an assumption so improbable, not to say absurd, so inconsistent with the terms of the grant, and the motives which usually influence human conduct, as to be utterly irreconcilable, either with the rules of evidence applicable to the subject, or the plainest dictates of reason or common sense." (See, also, McIver v. Wharton, 4 Wheat. 444.)
By the testimony of Vioget, it is proved that, before the grant was made, Sutter employed Vioget to survey the land and make a map of it; which map, the result of the survey, accompanied the petition of Sutter. The survey commenced on the east bank of the Sacramento River, about four and a half miles below the mouth of the American River. The line surveyed as the southern line ran on the margin of two lagunas laid down on the map. The survey included two leagues of land south of the American River, including, also, the land in dispute.
Vioget's testimony also proves a mistake in the latitude, and that the latitude named on the map was intended to be the latitude of the line marked on the map as the southern boundary before spoken of. He says that, in taking the latitude, the instrument used by him was defective, and that whatever mistake occurred in one line occurred in all.
This statement is corroborated by the map introduced by defendants. This shows the northern boundary-line, according to the designation of latitudes named in the grant, instead of running through the Buttes, runs at least twenty miles north of them.
It is also proved, by Vioget, that Sutter had already commenced his improvements at the Fort. Is it likely that Sutter would cause a survey to be made of lands, and petition the Governor therefor, and exclude all his improvements, his actual residence, and lands by him brought under cultivation? Here were his workshops, his tannery, his manufactories of different kinds; here his stock ranged; here was his Fort, erected to defend himself and employees from the savages.
In addition to these facts, we find on the map the lagunas--the American River--the establishment called New Helvetia--the River Sacramento. These are natural objects whose locality is not changed; they occupy the several places designated on the map.
A mistake in the latitude, taken in early times, with imperfect instruments, or by an unpracticed hand, is certainly not to be wondered at, when the latitude of the Fort is still unsettled. Until recently, the longitude of the coast of our State was unknown, and the loss of many vessels, including one or more belonging to the general government, was the consequence. When scientific men, sent out by the former government, made a mistake of more than half a degree in the longitude of our coast, is it surprising that Vioget should have made a mistake of some twenty miles? And when that mistake is proved, beyond controversy, will the Court confine Sutter to a line named in the grant as the southern boundary, against all the evidence introduced to prove and to establish the line? I trust not.
The decree of the Board of U.S. Land Commissioners, and that of the U.S. District Court, establishing the boundary, though not absolute authority, are entitled to respect, and the Court is referred to those decrees.
II. One of the defendants, Krause, offered in evidence a tax-deed, which was rejected in the Court below. This deed does not cover, as claimed by appellants, the premises in possession of defendant Coover, but only her own.
The deed contains an extract from the assessment-book, by which it appears that the land was not assessed to the owner, occupant, or unknown owner, but to --. The sale was for taxes of 1853. It is void, because the extract shows there was no valuation of the lot by the Assessor. There was no amount of taxes extended on the line opposite the lot, as required by law.
The other deeds, offered by defendants, were made by parties who had no title to convey, and, consequently, they could convey no right to defendants. It is contended, however, that these deeds prove that defendants had entered into possession in good faith, and made lasting improvements. For what purpose this argument is urged I know not. The decision in Billings v. Hall is not called in question.
III. It is contended by appellants, that the Court erred in refusing to allow them to prove an abandonment of the possession of the premises. If the Court below was right in believing that plaintiff had proved title, then there could be no abandonment. When there is a bare, naked possession, without title--in other words, when the only evidence of title is possession, that possession, and the right growing out of the possession, may be abandoned; but when a title, either legal or equitable is proved, there can be no abandonment. The abandonment of the possession is not abandonment of the title, and that some kind of title passed to Sutter, by virtue of his grant, will hardly be doubted. The whole argument of appellants, upon this point, is based upon the supposition that plaintiff showed no title. The authorities cited by them are mostly upon the question of estoppel, and have no bearing, in any way, upon the question of abandonment.
IV. It is urged that the following instruction of the Court to the jury was wrong: " If you believe, from the evidence, that the lots in controversy are embraced within the boundaries of the map introduced before you in this case, and that the map is a correct copy of the original map delivered to John A. Sutter, at the time he got his grant from the Mexican government, the plaintiff is entitled to recover. You must take the grant and map together, and if you believe the land in this suit is within the grant, as explained by the map, you will find for plaintiff."
The map and grant are to be taken together, and, thus taken, the instruction was clearly correct.
JUDGES: Field, J., delivered the opinion of the Court. Baldwin, J., concurring.
On an application for an extension of time to file a petition for a rehearing, Field, J., delivered the opinion of the Court--Baldwin, J., concurring.
This is an application for an extension of the time to file a petition for a rehearing. The application is based upon the affidavit of Mr. Weeks, that he has just been retained as counsel in the cases, and is unable to present the petition within the time prescribed by the rules of the Court. There is nothing in the reason assigned which entitles the defendants to any extension. These cases were submitted more than a year since, and elaborate written arguments were subsequently filed by the original counsel of the respective parties. They have been the subject of long and mature consideration by the Court. The questions involved in them are not new; they have been the subject of discussion with the profession for the last seven years; they have attracted the attention of the ablest jurists of the State, and been placed before the Court in every possible view, and it would be no disparagement to the learning and ability of the counsel to say that we think it highly improbable that he could throw sufficient new light upon the questions to induce us to change our deliberate judgment.
The counsel of the plaintiffs, and one of the counsel of the defendants, have repeatedly called the attention of the Court to the cases, and invoked a decision. The cases were placed on the calendar for the present term, like all other cases previously submitted, to be argued only in the event they were not decided before they were reached, and, like a great number similarly situated, they were so decided. No oral arguments could have been more elaborate or perfect than the written arguments on file.