Sabichi v. Aguilar

By the Court,

Wallace, J.:

The plaintiff deraigns title to the premises in controversy (a lot in the City of Los Angeles) by grant from the municipal authorities; and the only question presented upon this appeal is the effect of the Statute of Limitations pleaded by the defendant in bar of the action.

The claim of the city as successor of the Pueblo of Los Angeles, including the lot in controversy, was duly confirmed under the Act of Congress of March 3d, 1851, pro-Tiding for the settlement of private land claims in California; but no patent pursuant to such confirmation has been issued by the authorities of the United States. The defendants have been in possession of the premises ever since the year 1856. In September, 1858, a survey in the field was made of the lands confirmed, and in July, 1859, this survey, and the plat thereof, were approved in due form by the Surveyor General of the United States for the time being; and the plat thus approved by him remained in his office, subject to inspection, until the month of November, 1860.

In the meantime, on the 14th day of June, 1860, Congress passed the Act defining and regulating the jurisdiction of the District Courts of the United States in regard to the survey and location of confirmed private land claims in this State (12 U. S. Stats, at Large, 38); and in the months of September and October next succeeding its passage the Surveyor General, ex mero moiu, and in assumed compliance with its provisions, published in the newspapers a notice of the fact of survey made, and its approval by him, which publication was conducted in the manner prescribed by the first section of the Act. The action having been commenced on the 13th day of April, 1868, and the defendants having pleaded the Statute of Limitations upon the foregoing facts appearing, the Court below rendered judgment in their favor.

The title of the plaintiff is derived from the Mexican ■ Government, and it will be seen by reference to the Statute of Limitations, as amended in 1855, p. 109, that under its provisions he was at liberty to assert that title by an action “ commenced within five years from the time of final confirmation of such title by the Government of the United States, or its legally constituted authorities.” ,

Final confirmation within the intent of that statute (until the passage of the Act of Congress of January 14th, 1860, already referred to) was held by this Court to be “the issuance of the patent,” and not the approval by the Surveyor General of a survey made by himself. (Johnson v. Van Dyke, 20 Cal. 225; Davis v. Davis, 26 Cal. 46; Beach v. Gabriel, 29 Cal. 580.)

This construction of the Act of 1855 necessarily followed upon the views then recently announced by the Supreme Court of the United States in Castro v. Hendricks, 23 How. 438, where it was substantially held that over a survey, which had not itself been the subject of judicial proceedings to determine its correctness, but had merely been approved by the Surveyor General, the Commissioner of the General Land Office had supervisory authority. Of course this authority would terminate only with the issuance of the patent itself; for until then the duty of the Commissioner would continue, and his authority to see that the location, as actually made, was in conformity to the decree of confirmation as rendered—and until then the survey, as made and approved by the subordinate, the Surveyor General, so far from being definitely final, must necessarily be in fieri merely.

Congress having, however, passed the Act of June 14th, 1860, providing for the final determination of surveys by judicial proceedings before the Courts of the United States, the amendatory Statute of Limitations of the State, passed in 1863 (p. 327, Sec. 7), thereupon enacted that final confirmation should be the patent, or the final determination of the official survey under the provisions of that Act of t Congress.

That a survey, if become final through judicial proceedings, under the Act of Congress of 1860, amounted to final confirmation, even under the Statute of Limitations of 1855, had been distinctly intimated here, in the year 1862, in the case of Johnson v. Van Dyke, supra, and the statute of the following year (1863), in this respect only, embodied in terms a rule already practically reached by this Court upon construction of the Act of April 11th, 1855. In Mahoney v. Van Winkle, 33 Cal. 448, it was held that in all cases in which the survey fell within 'the provisions of the Act of Congress of 1860, the final confirmation mentioned in the statute of 1855 “must be held to be the final judgment of the Courts on the question of location, and the date of such judgment, or the time when it becomes final, must be the terminus a quo of the statute period.”

But I think it clear that the survey in question was not one of that character. It is found as a fact by the Court below that it was made pursuant to a decree of confirmation, rendered by the Board of United States Land Commissioners, and that the Surveyor General approved it on the 2d day of July, 1859.

As thus approved by that officer it was subject only to the supervision of the Commissioner of the General Land Office at Washington. In United States v. Sepulveda, 1 Wallace, 104, it was held by the Supreme Court of the United States that a like survey, approved by the Surveyor General prior to the passage of the Act of June 14th, 1860, was not subject to revision by the District Court of the United States under that Act, unless at the time of the passage of the Act such survey was already returned into the District Court, or proceedings to contest it were already pending there. In that case, upon the suggestion of the District Attorney, to the effect that the survey as made did not conform to the final decree of confirmation rendered by the Boarcl, an order had been made by the District Court of the United States that the Surveyor General return into Court for examination the plat of survey which he had approved. The return was made accordingly, and, upon hearing the objections, it was determined that the survey, as made and approved by the Surveyor General, was erroneous, and thereupon certain corrections, in that respect, were ordered by the Court. Upon appeal, however, the decree was reversed, and the District Court directed to dismiss the proceedings for want of jurisdiction. That case is, upon all points involved, conclusive of this—even had the District Court here, as there, attempted an adjudication of the survey, which, however, it did not. For in that case, and in this as well, the decree upon which the survey was founded was one rendered by the Board of Land Commissioners, and not by the District Court. The survey itself, there as well as here, had been approved by the Surveyor General at the date of the passage of the Act of Congress, and was not, at that time, already returned into the District Court, nor were any proceedings concerning it then pending before that tribunal. The publication of the notice by the Surveyor General, made in the ease at bar, being wholly unauthorized by the Act, was, therefore, nugatory. The purpose of such a notice, when given in a proper case, is merely to initiate judicial proceedings looking to a decree concerning the validity of the particular survey to which the notice refers. It necessarily presupposes a case in which a decree may be rendered definitively determining the survey to be valid, and thereafter not open to question. Here, however, had any party in interest, pursuant to the notice given, sought to intervene for the protection of his supposed interest, the Court could have made no valid order in the premises, except an order dismissing the proceedings for want of jurisdiction to entertain them.

The approval of the official survey in this case was not a determination of its validity had under the Act of Congress of 1860. It was not the judicial determination provided by that Act, but was one made by the Surveyor General in the exercise of the quasi-judicial authority vested in him by the antecedent Acts of Congress, and subject to the Commissioner of the General Land Office at Washington; and the lapse of five years, after the approval so made by the Surveyor General, is ineffectual to bar a recovery by the plaintiff.

The judgment must, therefore, be reversed, and the cause remanded, with directions to render judgment for plaintiff upon the findings.

And it is so ordered.