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fruitfu! subject of litigation for many possession thereof, by themselves or ten. years, both in the land department of the ants, on the passage of this act, in such government and in the state and federal quantities and upon such terms and concourts. For the purposes of this case a ditions as the legislature of the state of brief history only of the litigation is California may prescribe, except such deemed essential.

parcels thereof as may be reserved and The city of San Francisco, as the suc set apart by ordinance of said city for cessor of a Mexican pueblo of that name, public uses: provided, however, that the presented its claim to the board of land relinquishment and grant by this act shall commissioners created by the act of con not interfere with or prejudice any valid gress approved March 3, 1851, for the con adverse right or claim, if such exist, to firmation to it of a tract of land to the said land or any part therevi, whether extent of four square leagues, situated on derived from Spain, Mexico, or the United the upper portion of the peninsula of San States, or preclude a judicial examination Francisco. In Derember, 1854, the board and adjustment thereof." 14 St. 4. confirmed the claim for only a portion of The appeals to this court were thereupthe four square leagues, and both the city on dismissed. The measure of the city's and the United States appealed to the dis. title to the four square leagues of land is trict court of the United States. The to be found in the decree of confirmation United States subsequently withdrew its and the act of congress just recited. The appeal, but the case remained in the dis-question of the city's title having been settrict cuurt undisposed of until September, | tled, it became necessary to fix the bound1864, when, under the provisions of the aries of its lands by a survey. This duty, act of congress of July 1, 1864, it was under the law, devolved upon the* polittransferred to the United States circuit ical departmentofthe general government court, which sustained the contention of having charge of the public lands. Acthe city and entered a confirmatory de- cordingly, in 1867 and 1868, under instruccree in its favor on the 18th of May, 1865. tions of Surveyor General Upson, Deputy. 4 Sawy. 553, 577. The language of that Surveyor Stratton made a survey of the decree is as follows: "The land of which confirmed claiin, and the same was apconfirmation is made is a tract situated proved by the surveyor general, and subwithin the county of San Frarcisco, and sequently, after lying in the general land. embracing so much of the extreme upper office at Washington for about 10 years, portion of the peninsula above ordinary it was confirmed by the commissioner on high-water mark (as the same existed at the 11th of November, 1878. 2 C. L. L. 1234. the date of the conquest of the country, In making this survey Stratton ran its namely, the 7th of July, A. D. 1846) on lines along the line of ordinary high-water which the city of San Francisco is situat. mark of the Bay of San Francisco until ed, as will contain an area of four square he came to Mission creek, a small stream leagues; said tract being bounded on the orestuary of the bay, and then followed the north and east by the Bay of San Francis. | tide-line up the creek, and, crossing over, co, on the west by the Pacific ocean, and ran down on the other side. This plan on the south by a due east and west line seems also to have been followed with ref. drawn so as to include the area afore erence to a few o her small estuaries. Baid," subject to certain exceptions and The city protested against this method of deductions not necessary to be stated. survey, and, through her attorney of rec

. Both the United States and the city ord, gave notice of appeal from the action appealed from that decree,-the United of the commissioner of the general land. States from the whole decree, and the city office to the secretary of the interior, claim. from so much of it as included the afore ing that the proper method of running the said deductions and exceptions in the esti line along the bay was to follow the tidemate of the quantity of land confirmed. line of the main body of water, and cut While these appeals were pending, con across the mouths of all estuaries or creeks gress passed the act of March 8, 1866, " to which are arms of the bay. The board quiet the title to certain lands within of supervisors of the city, however, decidthe corporate limits of the city of San ed not to appeal from the decision of the Francisco." This act is as follows:

commissioner of the general land-office “ Be it enacter, etc., that all the right confirming the Stratton survey, and, deand title of the United States to the land claring that the action of the attor. situated within the corporate limits of ney was unauthorized, discharged him. the city of San Francisco, in the state of Thereafter the board passed a resolution, California, confirmed to the city of San addressed to the secretary of the interior, Francisco by the decree of the circuit court in which it was stated that, in its opinof the United States for the northern dis. ion, the Stratton survey was entirely cortrict of California, entered on the eight. | rect and legal, and should be approved. eenth day of May, one thousand eight Notwithstanding this action of the hundred and sixty-five, be, and the same board, the secretary of the interior sent are hereby, relinquished and granted to for the papers in the case, and, upon an the said city of San Francisco and its suc elaborate examination of the points incessors, and the claim of the said city to vulved, reversed the action of the commis. Raid land is hereby confirmed, subject sioner of the general land office approving howerer, to the reservations and excep. the Stratton survey, thus substantially tions designated ju said decree, and upon sustaining the original protest of the city the following trusts, namely, that all the to the running of the boundary line of the said land not heretofore granted to said grant up the estuaries of the bay. city shall be disposed of and conveyed by Upon motion for review, a subsequent said city to parties in the bona fide actual | secretary of the interior sustained the ac

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tion of his predecessor, and ordered a sur the general land office in approving and vey made in conformity with the views of confirming the Stratton survey in 1878. the department. * 2 Dec. Der. Int. 346. It This contention is based upon the propowas under those instructions that the Von sition that the secretary of the interior had Leicht survey was made, upon which the no authority to set aside the order of the patent was issued. Subsequently an ap- commissioner approving and confirming plication was made to a succeeding secre the Stratton survey, especially in view of tary to have the patent recalled and can the fact that no appeal was taken from celed, and a new patent issued; but it was Bucb order, and the authorities of the city denied, the secretary holding that he bad acquiesced in that survey. This proposi. no power under the law to grant the ap tion is unsound. If followed as a rule of plication, and that, even if he had, he law, the secretary of the interior is shorn should decline to exercise it, because he of that supervisory power over the public considered the views of his predecessors lands which is vested in him by section 441 sound and correct. 5 Dec. Dep. Int. 483. of the Revised Statutes. That section • The case, as presented by this record, provides as follows: "The secretary of the involves some very interesting questious. interior is charged with the supervision Ever since the decision in Polk's Lessee v. of public business relating to the followWendal, 9 Cranch, 87, it has been the set- ing subjects: * # Second. The public tled law of this court that a patent is void lands, including mines.” Section 453 proat law if the grantor state had no title to vides: “The commissioner of the general the premises embraced in it, or if the officer land-office shall perform, under the direcwho issued the patent had no authority tion of the secretary of the interior, all ex80 to do, and that the want of such title ecutive duties appertaining to the surveyor authority can be shown in an action ing and sale of the public lands of the at law. Patterson v. Winn, 11 Wheat. United States, or in any wise respecting 380, 384; Stoddard v. Chambers, 2 How. such public lands, and also such as relate 284, 318; Easton y. Salisbury, 21 How. 426; to private claims of land, and the issuing Reichart v. Felps, 6 Wall. 160; Best v. of patents for all (grants] of land under Polk, 18 Wall. 112; Smelting Co. v. Kemp, the authority of the government." Sec. 104 U. S. 636; Steel v. Refining Co., 106 Ú. tion 2478 prorides: "The commissioner S. 447, 453, 1 Sup. Ct. Rep. 389; Wright v. of the general land-office, under the direcRoseberry, 121 U. S. 488, 519, 7 Sup. Ct. tion of the secretary of the interior, is auRep. 985; Doolan v. Carr, 125 U.S. 618, 625, thorized to enforce and carry into execu8 Sup. Ct. Rep. 1228, and authorities there tion, by appropriate regulations, every cited.

part of the provisions of tbis title (tho It is sought by the plaintiffs to bring public lands) not otherwise specially prothis case within that rule; and it is there vided for. fore strenuously insisted that the patent The phrase, “under the direction of the for the San Francisco pueblo is void to secretary of the interior," as used in these the extent that it embraces lands below sections of the statutes, is not meaning. ordinary high-water mark of Mission creek less, but was intended as an expression in as that line existed at the date of the con general terms of the power of the secre. quest from Mexico in 1846. In order to tary to supervise and control the extensustain this proposition, the claim is put sive operations of the land department, of forth that the Stratton survey was cor which he is the head. It means that, in rect, and was never legally set aside; that the important matters relating to the the Von leicht burvey, upon which the sale and disposition of the public domain, patent was issued, was wholly unauthor. the surveying of private land claims and* ized in law and void; and that the prem the issuing of patents thereon, and the ad. jses in dispute, being excluded by the ministration of the trusts devolving upStratton survey, and being proved by pa on the government, by reason of the laws rol evidence to have been below the line of of congress or under treaty stipulations ordinary high-water mark, were never respecting the public domain, the secrelegally included in the patent, and were tary of the interior is the supervising not included in the decree of confirmation. agent of the government to do justice

It is a well-settled rule of law that the to all claimants and preserve the rights power to make and correct surveys of the of the people of the United States. As public lands belongs exclusively to the was said by the secretary of the interior political department of the government, on the application for the recall and canand that the action of that department, cellation of the patent in this pueblo within the scope of its authority, is unas case, (5 Dec. Dep. Int. 494:) “The stat. sailable in the courts except by a direct utes, in placing the whole business of the proceeding. Cragin v. Powell, 128 U.S. department under the supervision of the 691, 699, 9 Sup. Ct. Rep. 203, and cases cit- secretary, invest him with authority to ed. Under this rule it must be held that review, reverse, amend, annul, or affirm the action of the land department, in de all proceedings in the department having termining that the Von Leicht survey cor for their ultimate object to secure the rectly delineate.lithe boundaries of the pu alienation of any portion of the public eblo grant, as established by the confirma- lands, or the adjustment of private claims tory decree, is binding in this court, if the to lands, with a just regard to the rights department had jurisdiction and power of the public and of private parties. Such to order that survey. It is claimed, how supervision may be exercised by direct orever, and the referee so determined, that ders or by review on appeals. The mode no such power or authority existed in the in which the supervision shall be exercised department, because it had been exhaust. in the absence of statutory direction may ed by the action of the commissioner of be prescribed by such rules and regula

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tions as the secretary may adopt. When adjudge the question of accuracy prelim. proceedings affecting titles to lands are inary to the issue of a patent. before the department, the power of super After referring to the act of July 4, 1836, vision may be esercised by the secretary, which conferred plenary powers on the whether these proceedings are called to commissioner to supervise all surveys of his attention by formal notice or by ap- | public lands, “and also such as relute to peal. It is sufficient that they are brought private claims of land and the issuing of to his notice. The rules prescribed are de- patents," and also to the act of March 3,2 signed to facilitate the department in the 1849, the third section of which vested the dispatch of business, not to defeat the su secretary of the interior, in matters relato. pervision of the secretary. For example, ing to the general land-office, including if, when a patent is about to issue, the sec the power of supervision and appeal, with retary should discover a fatal defect in the same powers that were formerly disthe proceedings, or that by reason of charged by the secretary of the treasury, some newly-ascertained fact the patent, the court said: “The jurisdiction to reif issued, would have to be annulled, and vise on the appeal was necessarily co-exthat it would be his duty to ask the ato | tensive with the powers to adjudge by torney general to institute proceedings the commissioner. "We are therefore of the for its annulment, it would bardly be seri. opinion that the secretary had authority ously contended that the secretary might to set aside Brown's survey of Labeaume's not interfere and prevent the execution of tract, order another to be made, and to the patent. Ho could not be obliged to issue a patent to Labeaume, throwing sit quietly and allow a proceeding to be off Brazeau's claim." 1 Black, 202. See, consum niated which it would be immedi. also, 8 Wall. 661. ately his duty to ask the attorney gen. A similar question arose in Snyder y. eral to take measures to annul. It would Sickles, 98 U.S. 203, 211, and was decided in pot be a sufficient answer against the ex. the same way, the court going into an ercise of his power that no appeal had elaborate examination of the powers of been taken to him, and therefore he was the secretary of the interior to review the without authority in the matter.”

uction of the commissioner of the general *There is authority in this court for this land-office, and reaffirming the doctrines holding. Magwire v. Tyler, 1 Black, 195, of Magwire v. Tyler. was a case involving the right of the In Buena Vista Co. v. Railroad Co., commissioner of the general land-office, un 112 U. S. 165, 175, 5 Sup. Ct. Rep. 84, a qucs. der the act of July 4, 1836, (5 St. 107,) re tion arose whether the decision of the organizing that bureau, and of the secre commissioner of the general land-office tary of the interior. under the act of under the act of March 5, 1872, (17 St. 37,) March 3, 1849, (9 St. 395,) establishing that was intended to be final, from which ne department, to take jurisdiction of sur appeal would lie to the secretary of the inveys made in the upper Louisiana coun. terior. That act provides “that the comtry upon confirmed Spanish titles. One missioner of the general land-uffice is hereof the questions presented was whether by authorized and required to receive and the secretary of the interior could reject examine the selections of swamp lands in such a survey and order a new one of the Lucas, O'Brien, Dickinson, and such other same claim, and issue a patent upon the counties in the state of Iowa as forinerly second survey. By the act of March 3, presented their selections to the surveyor 1807, the board of commissioners appoint- general of the district including that state, ed to pass upon the merits of such claims and allow or disallow said selections and was required to deliver to each party indemnity provided for according to the whose claim was confirmed a certificate acts of congress in force touching the that he was entitled to a patent for the same at the time such selections were tract of land designated. This certificate made, without prejudice to legal entries was to be presented to the surveyor gen and rights of bona fide settlers under the eral, who proceeded to have the sur homestead or pre-emption laws of the vey made and returned, with the certifi United States at the date of this act." It cate, to the recorder of land titles, whose is to be observed that there was nothing duty it was to issue a patent certificate, in that act expressly giving an appeal which, being transmitted to the secretary from the comiuissioner's decision to the of the treasury, (then the head of the land secretary. But the court said: “There is department) entitled the party to a pat. nothing in the act which alters the relaent. By the act of April 25, 1812, the tion between the two officers as otherwise duty of the secretary of the treasury was established, or puts the decisions of the transferred to the commisssioner of the commissioner, under that act, upon a general land-office. The act of April 18, footing different from his other decisions." 1814, required that accurate surveys should * The powers and duties of the serretary be made according to the description in of the interior were no greater under the the certificate of confirmation, and proper acts under consideration in the cases to returns should be made to the cominis which we have referred than they are unsioner of the certificate and survey, and der sections 411, 453, and 2478 of the Re. all such other evidence as the commission: vised Statutes. They were practically, er might require. The court said: “These and to all intents and purposes, the same. acts show that the surveys and proceed. | The general words of those sections are ings must be, in regard to their correct. not supposed to particularize every minute Dess, within the jurisdiction of the com duty derolving upon the secretary, and missioner; and such bas been the prac. every special power bestowed upon him. tice. Of necessity be must have power to There must be some latitude for construc

tion. In the language of this court in the vey, and order a

new survey by Von late case of Williams v. U. S., 138 U. S. 514, Leicht; and that his action in such mat. 524, 11 Sup. Ct. Rep. 457: "It is obvious ter is massailable in the courts in a colit is commion knowledge-that in the ad. lateral proceeding. The Von Leicht surministration of such large and varied in- vey, therefore, must be held as a correct terests as are intrusted to the land de. survey of the pueblo claim as confirmed partment, matters not foreseen, equities by the circuit court. Moreover, the not anticipated, and which are, therefore, method of running the shore line of the not provided for by express statute, may Bay of San Francisco, adopted by the Von sometimes arise; and, therefore, that the Leicht survey, was approved by the cirsecretary of the interior is given that su cuit court itself in Tripp v. Spring, 5 perintending and supervising power which Sawy. 209; and on this point we enterwill enable him, in the face of these unex tain no doubt. pected contingencies, to do justice. See, The only remaining question in the also, Lee V. Johnson, 116 C. S. 48, 6 Sup. case, as we understand it, and as we deCt. Rep. 249.

sire to consider it, inay be thus stated : It makes no difference whether the ap Admitting that the Von Leicht survey is peal is in regular form according to the correct, and follows the decree of conestablished rules of the department, or firmation; admitting, also, that the patwhether the secretary on his own motion, ent followed the survey and the decree, knowing that injustice is about to be done and that the premises in dispute are emby some action of the commissioner, takes braced in the patent,-was parol evidence: up the case and disposes of it in accord. admissible to show that these premises ance with law and justice. The secretary were below the ordinary • high-water i is the guardian of the people of United mark, not of the Bay of San Francisco, States over the public lands. The obliga. but of Mission creek, a navigable arm of tions of his oath of office oblige hiin to see the bay, as that line existed at the date that the law is carried out, and that none of the conquest from Mexico in 1846? The of the public domain is wasted or is dis contention on this branch of the case is posed of to a party not entitled to it. He that, if all these admissions be taken as represents the government, which is a true, yet the land in dispute never was a party in interest in every case involving portion of the pueblo of San Francisco, the surveying and disposal of the public because, at the date of the conquest, it lands.

was below the ordinary high-water mark Furtbermore, the power of supervision of Mission creek, and, therefore, upon the and control exercised by the secretary of admission of California into the Union in the interior over all matters relating to 1850, passed to the state in virtue of its the disposition and sale of the public sovereignty uver tide-lands. lands, under section 453, Rev. St., is sub To this contention we cannot give our stantially the same as his power over the assent; and in the view which we take of bureau of pensions, under section 471. the question we think there was error in That section provides: “The commis admitting evidence to show that the land sioner of pensions shall perforın, under the was below high-water mark of the creek, direction of the secretary of the interior, and that the supreme court erred in sus. such duties in the execution of the various taining this ruling. For this and other pension and bounty laws as may be pre reasons hereivbefore stated the judgment scribed by the president.”

should have been for the defendant. There is nowhere any express power It is the settled rule of law in this court given to the secretary of the interior to that absolute property in, and dominion hear and determine appeals from the coin and sovereignty over, the soils under the missioner of pensions; and get the power tide-waters in the original states were reis exercised daily without question. And served to the several states, and that the such power was expressly asserted in U. new states since admitted have the same S. v. Black, 128 U. S. 40, 9 Sup. Ct. Rep. 12, rights, sovereignty, and jurisdiction in and inpliedly recognized in U.S. v. Raum, that behalf as the original states possess 135 U. S. 200, 10 Sup. Ct. Rep. 820.

within their respective borders. Martin v. The same remarks apply tu the powers Waddell, 16 Pet. 367, 410; Pollard v. Hagan, of the secretary of the interior, under a 3 How. 212, 229; Goodtitle v. Kibbe, 9 similarly-worded section of the Revised How. 471, 478; Mumford P. Wardwell, 6 Statutes, (section 463,) to supervise and Wall. 423, 436; Weber v. Commissioners, control the management of the bureau of 18 Wall.57, 65. l'pon the acquisition of the Indian affairs, which powers, so far as we territory from Mexico the United States are advised, have never been questioned. acquired the title to tide-lands equally

But even if there was any doubt of the with the title to upland; but with re. existence of such power in the secretary of spect to the former they held it only in the interior, as an original proposition, trust for the future states that might le still the exercise of it for so long i period, erected out of such territory. Authori. -going back to the organization of that ties last cited. But this doctrine does not department,-without question, ought to apply to lands that had been previously be considered as conclusive as to the ex granted to other parties by the former istence of the power. Railroad Co. v. government, or subjected to trusts which Whitney, 132 U. S. 357, 10 Sup. Ct. Rep. would require their disposition in some 112, and authorities there cited.

other way, (San Francisco v. Le Roy, 138 We conclude, on this branch of the case, U. S. 656, 11 Sup. Ct. Rep. 364;) for it is that the secretary of the interior had am equally well settled that when the Uuited ple power to set aside the Stratton sur States acquired California from Mexico by

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the treaty of Guadalupe Hidalgo, (9 st. | duty of the United States under the treaty 922.) they were bound, under the eighth to protect the claims of the city of San article of that treaty, to protect all Francisco as successor to the pueblo were rights of property in that territory ema superior to any subsequently acquired nating from the Mexican government pre rights of California over the tide-lands. vious to the treaty. Teschemacher V. Upon the :

Thompson, 18 cal. 11; Beard". Federy, ': We do not attach any importance, up:

Wall. 478.

on this question of reservation, to the deed Irrespective of any such provision in the of the tide-land commissioners, executed treaty, the obligations resting upon the to Sullivan on the 3d of December, 1870, for United States, in this respect, under the the state did not at that time own any principles of international law, would tide or marsh lands within the limits of have been the same. Soulard v. U. S., 4 the pueblo as finally established by the Pet. 511; U. S. v. Percheman, 7 Pet. 51, 87; land department. All the marsh lands, Strother v. Lucas, 12 Pet. 410, 436; U. S. p. 80 called, which the state of California Repentigny, 5 Wall. 211, 260.

ever owned, were granted to her by the These observations lead directly to the act of congress of September 28, 1850, determination of the force and effect of known as the 'Swamp-Land Act,' by the title of the pueblo of San Francisco, which the swamp and overflowed lands derived from the former government of within the limits of certain states, thereby Mexico, as opposed to the title which it is rendered unfit for cultivation, were grantinsisted passed to the state of California ed to the states, to enable them to conupon its admission into the Union by vir. struct the necessary levees and drains to tue of its sovereignty over all tide-lands in reclaim them. 9 St. c. 84, p. 519. The inthe state below the high-water line, even terest of the pueblo in the lands within including such as are situated within the its limits goes back to the acquisition of limits of the pueblo.

the country, and precedes the passage of If we have succeeded in showing that that act of congress. And that act was the tract in dispute was part of the land never intended to apply to lands beli by claimed by the city of San Francisco as the United States charged with any equi. successor of the Mexican pueblo of that table claims of others, which they were namy; that it is within the four square bound by treaty to protect. As to tide. leagues described in the decree of the Unit- | lands, although it may be stated as a gened States circuit court for the district of eral principle, and it was so held in Weber California, entered May 18, 1865; that that v. Commissioners, 18 Wall. 57, 65—that the court derided and decreed that the claim titles acquired by the United States to of title was valid under the laws of Mexi lands in California under tide-waters, from co; that the official survey of the United Mexico, were held in trust for the future States officers is correct, and followed the state, so that their ownership and right decree of confirmation; and that the pat of disposition passed to it upon its adent of the government of the United mission into the Union, that doctrine can. States, following the survey and decree, not apply to such lands as had been preembraced within its calls the property in viously granted to other parties by the dispute,- we think it clearly follows that former government, or subjected to trusts the patent of the government is evidence which would require their disposition in of the title of the city under Mexican laws, some other way. When the United States and is conclusive, not only as against the acquired (alifornia it was with the duty government, and against all parties claim to protect all the rights and interests ing under it by titles subsequently ac which were held by the pueblo of San quired, but also as against all parties Francisco under Mexico. The property except those who have a full and complete rights of pueblos, equally with those of title acquired from Mexico, anterior in individuals, were entitled to protection, date to that confirmed by the decree of and provision was made by congress in confirmation. This conclusion is fully its legislation for their investigation and sustained by the decisions of this court. confirmation. Townsend v. Greeley, 5

The case of San Francisco V. Le Roy, Wall. 326, 337. The duty of the govern138 U. S. 656, 670–672, 11 Sup.Ct. Rep. 364, is ment and its power in the execution of its directly in point. That was a bill by Le treaty obligations to protect the laims of Roy against the city of San Francisco to all persons, natural and artificial, and, quiet his title to certain property within of course, of the city of San Francisco as the limits of the city. The plaintiff be. successor to the pueblo, were superior to low claimed at the trial the benefit of a any subsequently-acquired rights or claims deed to the land from the tide-land com of the state of California or of individuals. missioners of the state, which purported, The confirmation of the claim of the city for a consideration of $352.80, to release to necessarily took effect upon its title as it the grantee the right, title, and interest existed upon the acquisition of the counof the state of California to the premises try. In confirming it, the United States, therein described. The city relied on the through its tribunals, recognized the vapatent of the govermnent, based on the lidity of that title at the date of the treaty, confirmation of the United States circuit -at least, recognized the validity of the court for the district of California.

claim to the title as then existing, -and in The court held that the title of the city execution of its treaty obligations no one rests upon the decree of the court recog. could step in between the government of Dizing the title to the four square leagues the United States and the city seeking of land, and establishing their buundaries; their enforcement. It is a matter of doubt and that, even if there were

any tide

whether there were any lands within the lands within the pueblo, the power and i limits of the pueblo, as defined and estilho

981.

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