(dissenting).
The decision in this case is important, not for the mere fact that the government has expended $2,000,000 on improvements on the land in question, but because under the doctrine of the majority opinion, none of the hundreds of Mexican grants in California are immune to attack. As the statement of facts is somewhat scattered throughout the majority opinion, I restate them for a better understanding of the case.
I. Statement of Facts.
(a) The Land in Question.
The land in controversy was at one time designated as “swamp and overflow Land Survey No. 34.” There is involved a question as to whether or not the land is a part of Mare Island; if it is not, it is very close to the island, being depicted on most maps as a part thereof. The southern part of the island is used by the government as a navy yard. The northern part of the island obtained by certain claimants in San Francisco Sav. Union v. Irwin (C.C.Cal.) 28 F. 708, affirmed 136 U.S. 578, 10 S.Ct. 1064, 34 L.Ed. 540, was known as “Swamp and Overflow Land Survey No. 569.” The southern boundary of No. 569 is the northern boundary of the land in' controversy, and the southern boundary of this latter tract is about one mile south of the northern boundary. The area of the tract in question originally was 164.55 acres, but, because of accretions, consists now of about 500 acres.
The western boundary of the tract is San Pablo Bay, and the eastern boundary is the Napa river. The island, including the tract involved herein, lies nearly in direction from northwest to southeast.
(b) History of Appellants’ Claims.
By the Act of September 9, 1850, c. 50 (9 Stat. 452), California was admitted as one of the United States.
The Act of September 28, 1850, c. 84 (9 Stat. 519), provided that “the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted to said State” of Arkansas. Section 1. Another provision of the act provided: *46“That the provisions of this act be extended to, and their benefits be conferred upon, each of the other States in the Union in which such swamp and overflowed lands, known as designated as aforesaid, may be situated.” (Italics supplied.) Section 4.
On June 11 and 12, 1855, one Patton, then county surveyor for Solano county, Cal., made a survey of the land in controversy, as “swamp or tule” land, for one David N. Darlington. On October 10, 1856, a survey was made “for David N. Darlington, by David P. Wade County Surveyor of Solano County through Em. A. d’Hemecourt deputy.”
The survey covered the land in question and was called “Survey No. 34,” and in this survey it was said: “The whole being swamp and overflowed land to the full intent and meaning of an' act of the legislature of this state entitled an act to provide f«r the disposal of the Swamp, and overflowed land belonging to this State, passed April 28th 1855, and surveyed in accordance with the provisions of said act and the directions of the Surveyor General of the State of California.”
On March 18, 1857, the State of California issued a patent to the land in question to Darlington.
The Act of July 23, 1866, c. 219 (14 Stat. 218, 219), provided that “it shall be the duty of the commissioner of the general land office to certify over to the State of California, as swamp and overflowed, all the lands represented as such” (section 4 [see 43 U.S.C.A. § 987]) on approved plats of township surveys made under authority of the United States.
The State of California, by an act of its Legislature approved March 27, 1872 (St. 1871-72, p. 622), with respect to patents theretofore issued by it, conveyed “all its right, title and interest in and to the lands in such patents described.”
One E. H. Sawyer brought an action of ejectment against the then commandant of the Navy Yard at Mare Island and another, to recover possession of the land involved herein. Judgment was rendered for defendants because the court held that it was necessary for plaintiff to prove a legal title in himself, and, as he had not shown a patent from the United States to the State of California, the legal title still remained in the United States. Sawyer v. Osterhaus (D.C.Cal.) 212 F. 765, decided February 7, 1914. In that opinion, at page 775 of 212 F., it is said “that the lands in suit were at the date in question, and continued to be down to a period long after their survey for plaintiff's predecessors, strictly within the definition of tide lands, as distinguished from swamp lands.”
A letter dated September 16, 1914, from the Commissioner of the General Land Office to Register and Receiver at San Francisco, states that the State of California by its State Surveyor General applied for the certification to it of the land in question as “swamp and overflowed” lands on July 29, 1912. The Commissioner by this letter rejected the application for two reasons:
. “1. No segregation survey of said swamp and overflowed lands, showing their location and area, has been approved.
“2. If they be on Mare Island, that was in private ownership under a Mexican grant since May 20, 1841, and so was not subject to the grant made by the Act of September 28, 1850 (9 Stat. 519).”
The United States Surveyor General for California on January 6, 1915, instructed one W. J. Lightfoot, United States Surveyor, to examine and investigate certain alleged swamp lands, and his report referred to the land in question as “swamp and overflowed.” Similar instructions were given to one Francis E. Joy on January 27, 1921, to make a report on “Lands Properly Belonging To Mare Island.” His report was submitted on October 23, 1922, wherein it was said: “The results of my investigations and observations * * * lead me to believe that there is no doubt that water at extra high tides * * * crossed over [the questioned tract] and probably at ordinary high tides with a stiff wind from the southwest, but that the water crossed over the shore * * * more in the manner of an overflow, a broad sheet or spillway, • without any definite channel, and only in one direction to the northeast. * * * ”
In 1924, the United States, in the Supreme Court of the District of Columbia, on the relation of one of the appelleesherein, filed a petition to obtain a writ of mandamus against the Secretary of the Interior requiring the latter to determine whether or not the land in question was-swamp and overflowed land. A writ was-issued on May 29, 1924, and in response thereto the following decision by the Secretary was made on January 10, 1925: “From the evidence before me I am led to. *47the conclusion that the body or strip of land known as Survey No. 34, was at the date of the swamp-land grant of September 28, 1850, swamp in character. * * * Accordingly, it is hereby declared to be swamp land, and, as such, subject to patent to the State of California in the absence of other sufficient reasons.”
Thereafter, the Secretary of Interior refused to certify the lands for patent to the State of California. On May 25, 1925, the same party in the action above outlined filed a petition for a writ requiring the Secretary to “certify said lands for patent to the State of CaUSirnia.” The writ was granted on October 29, 1926, and the judgment was affirmed on appeal, Work v. U. S. ex rel. O’Donnell, 57 App.D.C. 309, 23 F.(2d) 136, 138, the court saying: “The mere issuance of patent to California determines no legal or equitable right of the United States in the premises.”
The patent covering this land from the United States to the State of California is dated March 9, 1928.
The appellants deraign their title from Darlington.
(c) History of Appellee’s Claim.
The government claims title derived from a Mexican grant to one Castro.
The Congress of United Mexican States decreed on August 18, 1824, the colonization act. It provided:
“2d. The objects of this law are those national lauds which are neither private property nor belonging to any corporation or pueblo, and can therefore be colonized.
“3d. To this end the Congress of the States will form, as soon as possible, the laws and regulations of colonization of their respective demarcation, with entire conformity to the constitutive act, the general constitution, and the rules established in this law.
“4th. Those territories comprised * * within ten leagues of the seacoast cannot be colonized without the previous approval of the supreme general executive power.” Executive Document No. 17, p. 139, dated January 21, 1850; Reynolds, Spanish and Miexican Laws, 1895, p. 121.
On November 21, 1828, the rules and regulations for the colonization of territories were promulgated. Among them were:
“1st. The governors * * * of the territories are authorized * * * to grant vacant lands in their respective territories to such * * * private persons * * * who may ask for them, for the purpose of cultivating and inhabiting them.
“2d. Every person soliciting lands * * * shall address to the governor of the respective territory a petition, expressing his name [etc.] * * * describing as distinctly as possible, by means of a map, the land asked for * * *.
“4th. * * * The governor will accede or not to such petition, in exact conformity to the laws on the subject, and especially to the beforementioned one of the 18th of August, 1824.
“5th. The grants made to * * * private persons shall not be held to be- definitely valid without the previous consent of the territorial deputation, to which end the respective documents * * * shall be forwarded to it.
“6th. When the governor shall not obtain the approbation of the territorial deputation, he shall report to the supreme government, forwarding the necessary documents for its decision. * * *
“8th. The definitive grant asked for being made, a document signed by the governor shall be given, to serve as a title to the party interested, wherein it must be stated that said grant is made in exact conformity with the provisions of the laws in virtue whereof possession shall be given.
“9th. The necessary record shall be kept, in a book destine’d for the purpose, of all the petitions presented, and grants made, with the maps of the land granted, and the circumstantial report shall be forwarded quarterly to the supreme government.” Executive Document, supra, p. 141; Reynolds, supra, p. 141.
Jose Victor Castro, on October 30, 1840, petitioned the Governor of California for a grant of “an adjacent Island in the Bay of San Francisco, called ‘Mare Island’ which has no owners.” The next day, the Governor ad interim granted permission to Castro “to occupy with horses the island called la Yegna in the Straits of Carquinez,” which permission was also signed by the secretary ad interim. Subsequently Castro renewed his petition, and the following writing was made on the paper upon which the permission had been written.:
“Juan B. Alvarado, duly commissioned constitutional governor of the Department of the California.
*48“Whereas Dn. Victor Castro, a Mexican by birth, has petitioned this government for .ownership of the island named la Yegu situated near the Carquinez Straits, in consequence whereof the foregoing license was given him by Dn. Manuel Ximeno Casarin in charge ad interim of this government, and by virtue of the fact that the petitioner has again repeated his petitions proving that said island does not belong to the ownership of any individual, pueblo nor corporation. I have by means of a decree of this date declared, as I now declare by these presents Dn. Victor Castro owner of the property o'f the said island in all its extent in conformity with the powers conferred upon me by the supreme national government.
_ “In consequence let this be delivered to the interested party in order that it may serve him as evidence of his title and for such other purpose as may be convenient.
“Given at Monterrey, Capital of the Department, on the 20th day of May, 1841.
“Juan B. Alvarado.”
The Treaty of Guadalupe Hidalgo was proclaimed July 4, 1848 (9 Stat. 922). This treaty provided that the Mexican grants “preserve the legal value which they may possess, and the grantees may cause their legitimate [titles] to be acknowledged before the American tribunals.” It was also provided: “Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territories are those which were legitimate titles under the Mexican law in California * * * up to the 13th of May, 1846. * ' * * ”
One Bissell and one Aspinwall became vested with the title to whatever interest Castro had acquired by the above-mentioned grant by mesne conveyances. By the Act of March 3, 1851, c. 41 (9 Stat. 631), a commission consisting of three commissioners was constituted “for the purpose of ascertaining and settling private land claims in the State 'of California.” Section 1. (Italics supplied.) This act provided that any one claiming title to lands in California derived from a Spanish or Mexican grant must within 2 years present his claim to the commission which must render a decision on the validity of the claim. Section 9 provided for a review of such decision by the District Court, and section 10 provided for an appeal to the Supreme Court. With respect to all lands, the claims to which were not presented to the commission within the 2-year period, such lands were to be considered as a part of the public domain. A claimant', whose claim was finally confirmed, could receive a patent upon his "presentation to the General Land Office of his certificate of confirmation” and a plat or survey of the said land, duly certified and approved by the surveyor-general of California, whose duty it shall be finally to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same.”
By section 11 of the act it was provided: “That the commissioners herein provided for, and the District and Supreme Courts, in deciding on the validity of any claim brought before them under the provisions of this act, shall be governed by the treaty of. Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of'the United States, so far as they are applicable.”
Section 15 provided that the final decrees rendered, or any patent issued, under the act “shall be conclusive between the United States and the said claimants only, and’ shall not affect the interests of third persons.”
The Act of August 31, 1852, c. 108 (10 Stat. 76), provided for an automatic appeal from the decision of the commissioners to the District Court in accordance with certain conditions therein specified.
On August 31, 1852, Bissell and Aspinwall presented their claim to the Land Commission.
Negotiations commenced on behalf of the government on July 23, 1852, to purchase Mare Island, culminated in the purchase from the assignees of Castro, of the island for $83,491.00 by deed dated January 4, 1853, pursuant to the authority contained in the Act of August 31, 1852, c. 109, § 3 (10 Stat. 100, 104).
The facts concerning this purchase are not disclosed in the proceedings before the commission. . The first proceeding taken by the commission after the petition was presented and filed, occurred on April 20, 1854. Further proceedings were had thereafter, but the record in that proceeding discloses no evidence showing that the alleged grant was recorded in the Mexican archives. The case was submitted on briefs and taken un*49der advisement by the commission on November 7, 1854.
On May 8, 1855, the commission delivered an opinion stating in part:
“Strong suspicion has been raised by the testimony as to the genuineness of the grant * * *
“ * * * from the facts before us we do not feel warranted in discrediting entirely the testimony of Governor Alvarado, and if any force is given to it, it must be for the full extent of his statements, and in that event, this claim must be confirmed and a decree herein will be entered accordingly.”
On the same date a decree of confirmation was entered wherein it is said:
“ * * * it is adjudged by the Commission that the claim of the said petitioners is valid, and it is therefore deemed that their application for a confirmation thereof be allowed.
“The place of which confirmation is hereby given is situate in the Bay of San Francisco and is called ‘Isla de la Yegue’ or Mare Island and being an Island is bounded by the water’s edge.”
On February 1, 1856, notice of appeal to the District Court was filed, and on March 2, 1857, the District Court entered its decree, which is unsigned, affirming the decision of the commissioners, that the grant “is a good and valid claim and that the said claim be and the same is hereby confirmed to the said ‘Isla de la Yegua’ or ‘Mare Island’ with its natural boundaries.”
On April 1, 1857, a minute order allowing an appeal to the Supreme Court was made, and thereafter during that year (the day and month not being disclosed) the parties stipulated that such appeal be vacated “and that claimants have leave to proceed under the decree of this court hereto tore rendered in their favor, as under Final Decree.” A minute entry of an order of the District Court referring to the same matter uses language identical to that above quoted. Both minute orders are unsigned.
On April 15, 1930, a decree nunc pro tunc was entered in the District Court, stating, among other things “that the said claim be and the same is hereby confirmed to the said ‘Isla De La Yegua’ or ‘Mare Island’ with its natural boundaries.”
(d) The Issues.
On November 24, 1930, appellee filed its bill alleging that a grant was made by the instrument hereinabove referred to; that the grant was confirmed by a decree of the Land Commission; that on petition for review, the lower court ordered judgment to be entered on March 2, 1857; that the decree of the lower court was entered on April 15, 1930; and that appellants are bound by the decree, because they claim under and in privity with appellee against whom the decree was rendered. The facts concerning the purchase of the land in question for $83,491 were alleged, as were the reservations, and the occupation of the lands in question by appellee since September 16, 1853.
The bill further alleged the issuance of the Darlington patent; that appellants claim some title and right to the land in question by virtue of mesne conveyances, and that “each of said claims is wholly without right or foundation in law or fact”; that appellee issued a patent to the State of California, but that the same “is null and void and is without force and effect and has no validity.” Appellee prayed that the patent issued to the State of California, the patent issued by the latter to Darlington, and the mesne conveyances mentioned, be for cancellation; that appellants be ad-declared void, and the same be surrendered judged to have no title or interest in the lands in question; and that appellee be adjudged to be the owner in fee simple absolute, and possessed of the lands in question.
Appellants answered alleging, generally, that the Castro grant was void, and never finally confirmed, and that appellee had no right, title, or interest in the land in question because the patent to the State of California, and the Darlington patents were valid.
The court decreed in favor of appellee, from which this appeal was taken.
(e) Questions Presented.
The mere fact that appellee issued a patent does not conclude an attack against it, for as said in Steel v. Smelting Co., 106 U.S. 447, 452, 1 S.Ct. 389, 394, 27 L.Ed. 226, that if the lands covered by the patent “never were the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of or reserved from sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time and in any form of action.” The reason for such rule is found *50in Davis’ Administrator v. Weibbold, 139 U.S. 507, 509, 11 S.Ct. 628, 636, 35 L.Ed. 238, where it is said that such patents “are conclusive in such actions [referring to actions of the land department] of all matters of fact necessary to their issue, where the department had jurisdiction to act upon such matters, and to determine them; but if the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale or other disposition, or they had been reserved from sale, the department had no jurisdiction to transfer the land, and their attempted' conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed.” And in United States v. Conway, 175 U.S. 60, 68, 20 S.Ct. 13, 16, 44 L.Ed. 72, it is said that “nothing is better settled by this court than that a patent issued by the United States to lands which they do not own is a simple nullity,” citing cases.
In the light of the pleadings, then, it is apparent that our first inquiry is directed to the question as to whether or not the United States owned the lands in question at the time of the conveyance thereof to the state. We may assume that such conveyance occurred, if at all, at the time of the enactment of the Swamp Act, for if it did not own the lands at that time, the state acquired nothing. I believe this is conceded by both parties. The majority likewise agree, for it says that if the land was granted to Castro in 1841 “the United States did not acquire -these lands from Mexica in the cession of area now constituting the State of California, and hence they were not granted to California by the Act of 1850.”
In determining whether or not the lands in question were owned by appellee at the time of the enactment of the Swamp Act, it is alleged that the prior grant to Castro was confirmed by the Land Commission, and by the District Court. The answers, taken in connection with contentions of appellants, present three issues: (1) Was there a decree of confirmation actually entered? (2) If so, was it valid? (3) If so, is it binding on appellants ?
II. Confirmation of the Castro Grant,
(a) Decree of Confirmation Was Entered.
It is conceded that the Commission entered and signed the decree mentioned. No reason appears why the rendition of the decree of the District Court on March 2, 1857, was not made, except that such decree was unsigned. I see no reason why that decree is invalid. I find neither statute nor decision which requires the judge to sign a decree in the federal court. 33 C.J. 1212, § 152; 15 R.C.L. 585, § 21; and see Secombe v. Steele, 20 How. (61 U.S.) 94, 102, 15 L.Ed. 833. Nothing in Equity Rule 3 (28 U.S.C.A. following section 723) requires it. The act creating the Land Commission says, in section 10, 9 Stat. 633, that “The District Court shall proceed to render judgment,” but nothing requires the judgment to be signed. It therefore appears that the nunc pro tunc decree did nothing more than was already done.
However, since the parties have made no point of it, I do not need to rest the conclusion, that the Castro grant was in fact confirmed, on the point just mentioned, for the decree of the Commission is conclusive until vacated. Beard v. Federy, 3 Wall. (70 U.S.) 478, 492, 18 L.Ed. 88. Cf. Central National Bank v. Stevens, 169 U.S. 432, 459, 18 S.Ct. 403, 42 L.Ed. 807.
We must, therefore, accept the conclusion that the grant was in fact confirmed, under either theory mentioned.
(b) Validity of the Decree of Confirmation.
First. It is not contended that the decree is void because the Commission did not have jurisdiction over the persons of the claimants, and the United States, and no such contention could be made, for the claimants and the United States submitted to the jurisdiction of the Commission and the District Court.
Second. Appellants originally contended that the decree was void because it was rendered on insufficient evidence, in that there was no evidence before the Commission that the Castro grant was recorded in the archives of Mexico, or for other reasons requiring proof by evidence. This contention is disposed of by the following quotation from Beard v. Federy, supra, 3 Wall. 478, 489, 18 L.Ed. 88: “The board having acquired jurisdiction, the validity of the claim presented, and whether it was entitled to confirmation, were matters for it to determine, and its decision, however erroneous, cannot be collaterally assailed on the ground that it was rendered upon insufficient evidence. The rule which applies to the judgments of other inferior tribunals applies here, — that when it has *51once acquired jurisdiction its subsequent proceedings cannot be collaterally questioned for mere error or irregularity.” Further, whether or not the grant was valid is a conclusion of law to be drawn from the facts. After the term, at which a judgment or decree was rendered, has expired, such judgment or decree, except on appeal therefrom, cannot be set aside upon the sole ground that it is erroneous as a matter of law. Bank of United States v. Moss, 6 How. (47 U.S.) 31, 12 L.Ed. 331.
On rehearing, appellants concede the correctness of that holding by saying: “We readily admit that, except upon direct appeal, a decree of confirmation may not be questioned because of any inadequacy of the evidence upon which it is based.”
Third. Appellants also contended that upon purchase of the Bissell and Aspinwall claim prior to determination thereof by the Commission the controversy ended, and so none was pending when the Commission entered its decree.
There are two answers to that contention : The Commission had jurisdiction, after presentation of the claim, regardless of whether or not a controversy existed; and there was in fact a controversy.
The act (9 Stat. 631, § 1) creating the commission begins with the statement, “That for the purpose of ascertaining and seltling private land claims in the State of California.” The only purposes of the act were stated to be “ascertaining * * * private land claims” and “settling private land claims.” Thus the jurisdiction of the Commission was extended to the problem of ascertaining what grants were in existence. Ascertaining what grants were in existence was important to the United States in regard to the newly acquired lands, as shown by More v. Steinbach, 127 U.S. 70, 81, 8 S.Ct. 1067, 32 L.Ed. 51, and Newhall v. Sanger, 92 U.S. 761, 763 et seq., 23 L.Ed. 769. It is obvious that grants could be ascertained without the existence of a controversy, and that, therefore, its jurisdiction did not depend on the existence of a controversy.
The majority now holds that the duty, thus stated “was to ascertain and settle it as between two adverse parties.” It says that such a conclusion follows from certain provisions of the act. That the provisions do not state expressly that such is the fact, is shown by a perusal of them. That the provisions contain no such meaning by implication, is shown by the fact that they, on their face, relate to cases where there was in fact a controversy.
The second reason why the contention of appellants is unsound is that there was in fact a controversy. The officers of the United States were required to be present at all hearings before the commissioners. Even in the case of perfect grants, such officers had the duty to prevent encroachment on the public lands by claimants under their grants, or in other words, to see that the claimants did not claim more than actually belonged to them. Appellants on rehearing deny the application of that statement saying: "Surely it will not be contended that the United States had a controversy with itself to prevent its claiming as against itself more land than it was entitled to.” From this, I understand that it is argued that officers of the United States may violate duties imposed by statute whenever their judgments so dictate. I do not understand that to be the law. The statute prescribes the duty as stated, and all the wisdom appellants may muster cannot controvert it. It is for Congress to prescribe the duty, not appellants. The presumption is that the officers performed their duty, and appellants have not overcome it.
A further reason why there was in fact a controversy is that even at the time of the decree of the land commissioners, the United States, under the theory of the majority that the land was conveyed to California, still held the legal title because no patent had been issued. Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 18 S.Ct. 208, 42 L.Ed. 591. Therefore there was a contest between the holder of the legal title against persons claiming it. It was exactly so held in Sawyer v. Osterhaus, supra, and the decree in that case is res judicata because appellants claim under the plaintiff in that case, and are in privity with him. Dowell v. Applegate, 152 U.S. 327, 343, 14 S.Ct. 611, 38 L.Ed. 463; Litchfield v. Goodnow, 123 U.S. 549, 550, 8 S.Ct. 210, 31 L.Ed. 199.
Fourth. The majority holds that appellee was trustee for California, at the time of the decree of the Commission, and that it violated its duties as trustee in haphazardly or perfunctorily contesting the Castro claim to the detriment of the cestui, and therefore appellee “can take no advantage from the proceeding before the Commission.”
*52That argument is based on the assumption that actually the equitable title passed only if the land was public at the time the swamp act was passed. And-to determine that question, one must first determine whether the decree of the Land Commission can be attacked, because if not, California received no interest whatever. The holding is analogous to the homely examples of the cart pulling the horse, and crossing the bridge before it is reached. Attaching the word “equity” to a court does not permit it to transmit power to. the cart to pull the horse, nor does it permit the bridge to be crossed before it is reached.
The fallacy in the-holding of the majority is that the grant is attacked without first considering whether or not the decree is subject to attack, and once having successfully attacked the grant, the result thereof is the establishment of an equitable title, which is then used as a basis for an attack upon the decree. But the existence of the equitable title arises from a successful attack on the decree. Such reasoning, in my opinion, has neither beginning nor end.
That is what I said in the original dissent, and it is now applicable. Appellants, on rehearing, erroneously state: “The dissenting opinion conceives that the majority opinion reasons in a circle, the argument in this connection being this: that the confirmation proceedings cannot be attacked, except by one having an equity in the property; that the majority assume that the United States held the legal title in trust for the State under the Swamp Land Act and that therefore the appellants, as successors in interest, may question the confirmation proceedings; whereas, so it is urged, until the confirmation proceedings are disposed of no equity in the State is shown which would give it, or appellants as its successors in interest, any standing to attack the proceedings.” Nowhere did I state that “one having an equity in the property” could attack the confirmation proceedings. In fact, the statement is untrue. One might own an equity under a claimant before the Commission, but under section 15 of the act, he could not attack the confirmation proceedings.
The majority answer this argument by saying: “ * * * Implicit in this bill, so recognizing the patents which it seeks to cancel, is the recognition of the status of the United States as holder of the bare legal title in 1850, at the time of the grant to California, in trust for California as its cestui, having the whole equitable interest.” Let us see what the bill recognizes. After alleging the issuance of the patent by appellee to appellants, it is alleged that such patent “ * * * is null and void and is without force and effect and has no validity for the reason that the lands described in said purported patent were, claimed and held in private ownership under and by virtue of the aforesaid grant from the Governor of Mexico at the time of the passage and approval of the above mentioned Swamp Land Act and were not a part and never had been a part of the public domain * * * ” Several other reasons were alleged in the bill as grounds for the allegation that the patent was void. I am unable to agree with the majority holding -with respect to this specific matter in view of such allegations.
Appellants on rehearing offer the following observation with respect to my conclusion that the majority reasoning was circuitous : “This line of argument, we respectfully suggest, wholly misconceives the position of appellants. They are not claiming that, because the Government held the legal title in trust for the State, they are free to attack the confirmation proceedings. Appellants are not, in any true sense, attacking those proceedings at all. Their claim is merely that those proceedings, be they good or bad, are not binding upon them * * *” (Italics supplied.)
These statements were either made erroneously, or appellants now wish to change the theory heretofore urged. Proof of my statement is found in appellants’ briefs, where I find nearly 15 pages devoted to an attack upon the decree of confirmation. In their brief they'say: “We submit, upon the grounds stated, that the decree of the Land Commission was, and is, void, and upon the same grounds the nunc pro tunc decree was and is void”; “We need not pause to inquire the effect on the Castro claim of the-void decrees”; and in the Résumé: “It results, therefore, that on each of the grounds stated, the Land Board, and equally the District Court, was without jurisdiction or power to confirm the Castro grant, and being so without power or jurisdiction, the decrees respectively of the Land Board and the District Court, are nullities.” A similar statement is made in appellant’s reply brief.
The point herein under discussion was not originally made by appellants. It seems *53to me from the above quotation, that appellants disclaimed any intention of relying upon it in their petition for rehearing. If not, however, the fact that the reasoning is circuitous shows the fallacy in the argument, and I believe the correct conclusion is that it is untenable.
Fifth. As the case is presented to us, there is a presumption of validity of the decree of confirmation, and the burden is on appellants to overcome that presumption. I believe the foregoing discussion shows that none of the points raised are tenable; that therefore the Commission and the District Court had jurisdiction over the persons of the claimants and appellee, and over the subject-matter; and that therefore the decree is valid.
(c) Effect of the Decree of Confirmation.
Having established the validity of the decree of confirmation, I next consider its effect. Under section 13 of the act creating the commission (9 Stat. 633), it is provided that “for all claims finally confirmed by the said commissioners, or by the said District or Supreme Court, a patent shall issue to the claimant” upon compliance with certain procedural conditions. With respect to claims finally rejected, and those not presented to the Commission within two years, it is provided that the lands so claimed shall be considered a part of the public domain.
In section 15 (9 Stat. 634) it is provided: “ * * * That the final decrees rendered by the said commissioners, or by the District or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.”
First. That a grant once finally confirmed, as here, was to be protected against such forays as the one here presented, seems to have been definitely settled.
In Beard v. Federy, 3 Wall.(70 U.S.) 478, 492, 18 L.Ed. 88, involving the validity-of a Mexican grant in California, it is said: “If parties asserting interests in lands acquired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit for his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United States in the location of the same, the patent would fail to be, as it was intended it should be, an instrument of quiet and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rest would be open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid, or was not properly located, and. therefore, he could not be disturbed by the patentee. No construction which will lead to such results can be given to the fifteenth section.”
In Thompson v. Los Angeles F. & M. Co., 180 U.S. 72, 76, 21 S.Ct. 289, 291, 45 L.Ed. 432, it is said:
“The ultimate basis of the contention is that the court of private land claims had no jurisdiction to confirm the grant because the governor of the Californias had no power to convey the public land for a money consideration. That is to say, the grant being void it could not be the basis of a claim to lands ‘by virtue of any right or title derived from the Spanish or Mexican government.’ * * *
“We think that counsel put too limited a signification on the words of section 8, that the claim shall be ‘by virtue of any right or title derived from the Spanish or Mexican government.’ The words, of course, were descriptive of the class of claims of which the board of land commissioners was given jurisdiction. They made a special tribunal of the board, limited to hear a particular class of claims, but not limited to the questions of law and fact which could arise in passing on and determining the validity of any claim of the class. The power to consider whatever was necessary to the validity of the claim — propositions of law or propositions of fact, the fact of a grant, or the power to grant — was conferred. If there should be a wrong decision the remedy was not by a collateral attack on the judgment rendered. The statute provided the remedy. * * * The jurisdiction of the board was necessarily commensurate with the purposes of its creation, and it was a jurisdiction to decide rightly or wrongly. If wrongly, a corrective was afforded, as we have said, by an appeal by the claimant or by the United States to the district court.”
*54These quotations seem to be decisive of the instant case. It is urged that there are two reasons why the rules therein stated are not applicable. Those will be considered next.
Second. Appellants for the first time have, on rehearing urged a new point, which the majority, in its amended opinion, has held to be well founded. I quote from appellants’ brief on rehearing: “ * •* * appellants assert that, whatever the form, the fact of the matter is that the United States did not represent the State, for the reason that the interests of the United States were hostile and adverse to those of the State, and one who has an adverse interest cannot represent those to whose interest his own are hostile. The fact cannot be gainsaid that upon purchasing the interests of Bissell, Aspinwall and McArthur the United States was the only real party in interest on both sides of the proceedings * * * ” Under those facts it is said that the applicable law is that a decree given in a proceeding in which the real party in interest on both sides is the same, is “not binding upon any one other than the actual parties to the proceeding.”
Assuming, without holding, that the rule as stated by appellants is correct, as applied to courts deriving their power from the Constitution, I explore the contention further to demonstrate its unsoundness.
The treaty of Guadalupe Hidalgo pro•vided that “grantees may cause their legitimate [titles] to be acknowledged before the American tribunals.” (Italics supplied.)
The following quotation from United States v. Ferreira, 13 How. (54 U.S.) 40, 45, 46, 14 L.Ed. 42, respecting a somewhat similar treaty provision, is applicable: “The treaty certainly created no tribunal by which these damages were to be adjusted, and gives no authority to any court of justice to inquire into or adjust the amount which the United States were to pay to the respective parties who had suffered damage from the causes mentioned in the treaty. It rested with Congress to provide one, according to the treaty stipulation. But when that tribunal was appointed it derived its whole authority from the law creating it, and not from the treaty; and Congress had the right to regulate its proceedings and limit its power; and to subject its decisions to the control of an appellate tribunal, if it deemed it advisable to do so.”
In accordance with that principle the nature of the obligation under the present treaty is shown by the following from Beard v. Federy, 3 Wall. (70 U.S.) 478, 492, 18 L.Ed. 88: “The obligation, to which the United States thus succeeded, was of course political in its character, and to be discharged in such manner and on such terms as they might judge expedient. By the Act of March 3d, 1851, they have declared the manner and the terms on which they will discharge this obligation.” And more specifically, it is staked in Grisar v. McDowell, 6 Wall. (73 U.S.) 363, 379, 18 L.Ed. 863: “In the execution of its treaty obligations with respect to property claimed under Mexican laws, the government may adopt such modes of procedure as it may deem expedient. It may act by legislation directly upon the claims preferred, or it may provide a special board for their .determination, or it may require their submission to the ordinary tribunals. It is the sole judge of the propriety of the mode, and having the plenary power of confirmation it may annex any conditions to the confirmation of a claim resting upon an imperfect right, which it may choose. It may declare the action of the special board final; it may make it subject to appeal; it may require the appeal to go through one or more courts, and it may arrest the action of board or courts at any stage.”
This quotation was approved in Trenouth v. San Francisco, 100 U.S. 251, 255, 25 L.Ed. 626. See, also, Astiazaran v. Santa Rita Mining Co., 148 U.S. 80, 81, 13 S.Ct. 457, 37 L.Ed. 376. It was held in Grisar v. McDowell, supra, where a claim was confirmed by the circuit court on appeal from a decree of confirmation made by the commission, and Congress thereafter confirmed the claim and modified the decree of the circuit court while appeal to the Supreme Court was pending, that the action of Congress was conclusive, and that the Supreme Court had no power to and could not affect the grant by its decision.
From these authorities I believe it is apparent that the discharge of the duties placed on the United States by the treaty was, in the first instance, to be carried out by Congress. Congress performed the duties by establishing the land commission, and providing that when that tribunal made a decision with respect to a particular claim, the decree so made “shall be conclusive between the United States and said claimants.” And as subsequently held by the *55Supreme Court, if the decree was conclusive upon those parties, it was equally conclusive on those who claimed under such parties. Congress has specified the condition, as it had the power to do, and we must give effect to that condition as it is written, without restricting or enlarging it. Reading into the provision quoted the effect of the decision of the majority we would then have the act read in effect: “The decree shall be conclusive between the United States and said claimants, excepting when made in proceedings where one party is the real party in interest on both sides.”
I am content to let Congress pass the legislation, and believe there is no authority in this court to usurp that function. Congress itself confirmed grants in New Mexico under the same treaty. Act June 21, 1860, ch. 167, 12 Stat. 71. I am doubtful if even appellants would contend that such action of Congress could be held to be not binding on the ground of the exception herein proposed. Tameling v. United States Freehold, etc., Co., 93 U.S. 644, 662, 23 L.Ed. 998; Astiazaran v. Santa Rita Mining Co., supra. It is difficult to see how a decree of the commission, acting on behalf of and pursuant to authority conferred by Congress, can be held not binding on the same ground, since Congress did not so provide in the act.
With respect to the grants in California, Congress delegated its duty to a special commission. Although that commission is more in the nature of a congressional committee, some of the cases speak of it as exercising judicial functions. Statements in Astiazaran v. Santa Rita Mining Co., supra, imply that the commission was a court. Concede that fact, and it is still apparent that the authority of the court was only that given to it by the act of its creation; that it could confirm or reject grants only in the manner prescribed by the acts; that it did not function as a court with plenary powers, and was not intended as such. I believe that the foregoing conclusively shows that the confirmation by the commissioners was, except as to “third persons,” to have the same effect with respect to attack such as this, as a confirmation by Congress, which, as the Supreme Court said in Tameling v. United States Freehold, etc., Co., supra, 93 U.S. 644, 662, 23 L.Ed. 998, was “conclusive, and there fore not subject to review in this or any other forum.”
Third. It was originally contended by appellants, that appellants were “third persons” within the meaning of section 15 of the act. The majority so held, but did not consider the complete statute.
Section 15 (9 Stat. 634) provides that “the final decrees rendered * * * shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.” It is quite clear from the statute that neither the United States nor the claimants can be “third persons.” And it likewise means that all persons claiming under either the United States or the claimants are concluded, for in Beard v. Federy, supra, 3 Wall. 478, 492, 18 L.Ed. 88, speaking of the patent which follows the decree of confirmation it was said: “As against the government this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent.” See, also, More v. Steinbach, supra, 127 U.S. 70, 83, 8 S.Ct. 1067, 32 L.Ed. 51. In fact, that is merely the general principle prevailing in all suits to quiet title, that the decree concludes the parties and their privies. See Dowell v. Applegate, supra, and Litchfield v. Goodnow’s Adm’r, supra. When the statement quoted from Beard v. Federy, supra, is read in connection with the statement appearing in the same paragraph, it is apparent that the only persons who could “hold superior titles, such as will enable them to resist successfully any action of the government in disposing of the property” are those who claim under some title not descending from either the United States or the claimants. Here appellants claim under the United States and are concluded by the decree.
On rehearing, appellants concede that such contention is unsound law, saying: “Nor is it our contention that, in the ordinary sense, the State of California and its successors in interest are ‘third parties’ within the meaning of section 15 of the Land Commission Act. Were that question still open, we think it could be demonstrated that the State of California and these appellants were intended by Congress to be regarded as ‘third persons’ whose interests should not be affected by proceedings in confirmation * * * But we concede that it has been decided otherwise by the Supreme Court in regard to this particular statute. * * * ”
Notwithstanding this concession, the majority on rehearing reiterates its holding, though on other grounds. In Lord v. *56Veazie, 8 How. (49 U.S.) 251, 252, 12 L.Ed. 1067, an action was brought on a covenant in “a written instrument, which purported to be a conveyance by Veazie to Lord of 250 shares of the stock of” a railroad company. The railroad company, chartered by the State of Maine, had executed a deed to a bank, “by virtue of which that bank claimed to hold the entire property of the” railroad company. Veazie by the written instrument covenanted that the property of the corporation was free and clear of encumbrances, and that the stockholders thereof had a right to use certain river waters, which, it was shown, was granted by the State of Maine_ to Moor and others. In the Supreme Court, Moor for himself and as counsel for the bank, moved “to dismiss the appeal, upon the ground that it was a fictitious case, got up between said parties for the purpose of settling legal questions upon which he * * * [and the bank] had a large amount of property depending.” The motion to dismiss was sustained, the court saying, 8 How. 251, at page 255, 12 L.Ed. 1067: “The objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.”
Based on this case, the majority say that “it would require an unequivocal decision of the Supreme Court to establish that California was not intended by Congress to be included in the phrase ‘interests of third persons’ used in the Land Board Act of 1851.” It is sufficient to point out that the case relied on did not construe the phrase in the act mentioned, because that case dealt with an ordinary action at law, and was decided two years before the act in question was enacted. In Beard v. Federy, supra, and More v. Steinbach, supra, the phrase was construed as used in the act in question. The construction so given is opposite to the one used by the majority, and is controlling.
(d) Time When Confirmation Takes Effect.
In More v. Steinbach, 127 U.S. 70, 83, 8 S.Ct. 1067, 1072, 32 L.Ed. 51, it is said: “The confirmation takes effect, by relation, as of the date of the first proceeding commenced before the land commissioners; and an adjudication that at that date it was valid, is also an adjudication that it was valid at the date it was made.”
As applied to the instant case, the Castro grant was made in 1841, and therefore the land covered the’reby was not ceded to the United States as public land by the Treaty of Guadalupe Hidalgo. It follows that instead of the State of California receiving an equitable title under the Swamp Act of 1850, it, in my opinion, received nothing, which is the title appellants now have.
III. The Evidence.
(a) Copy of Grant From Deed Records.
Appellee introduced into evidence a certified copy of the grant as recorded in the deed records of Sonoma county, Cal. The majority held such copy inadmissible because under California law “a certified copy of a document which is recorded in a county other than that where the land lies is not admissible.”
In addition appellee introduced the record of the proceedings before the Commission in the Bissell case, as filed in the District Court. A copy of the grant was included in that record. Inasmuch as I believe the latter copy was admissible, it is unnecessary to discuss the holding of the deed record copy.
(b) Admissibility of the Bissell Record.
The majority h.olds that the entire record in the Bissell case is inadmissible in the instant case, for the same reason it holds the decree not binding on appellants. I have heretofore discussed those reasons, and I believe shown them to be untenable, and therefore such record is admissible.
(c) Copy of Grant from the Bissell Record
Appellee opened its case with testimony of the loss of papers and records.
Witness Iva Frances Bailey testified on behalf of appellee, as follows: “I am an. employee in the office of the United States Surveyor General for California and have been there for thirty-seven years. Prior to the San Francisco earthquake and fire in 1906, there was in the possession and in. the custody of that office the records and archives of the Mexican Government of California, also the records of land claims, under Spanish grants presented to the Land Commission in California. I understand that all original papers connected. *57with the grant were also on file in the office. The effect of the fire of 1906 was a total destruction of all of these papers with the exception of a few that were in the safe.”
Witness Frank E. Barker testified on behalf of appellee, as follows: “I am the office cadastral engineer in the Office of the Public Survey, which was formerly the United States Surveyor General for California. I have been there since 1909. I have had occasion to make a search through the archives of the Mexican Government prior to the acquisition of California by the United States and have found some of them. The proceedings before the Land Commission in the case of the confirmation of Mare Island I have been unable to find. There appears to be an incomplete ex-pediente on the original documents that were submitted as exhibits to the Land Commission at the time of the application for confirmation. I do not find the original document of the grant from Juan B. Alvarado to Castro, * * * ”
The majority stated, in its opinion, with respect to the Castro grant: “No original document was offered by the government or its absence explained. There is absence of search or proof of loss.”
Ordinarily the original grant would have been in the possession of the Land Commission after the hearing. To show that the original grant was presented to the commission, I quote from its opinion confirming the grant: “The claimants in this case ask confirmation of their title which they derive from Victor Castro, by virtue of a grant issued to the said Castro, on the 20th day of May, 1841, by Governor Juan B. Alvarado, and have offered in evidence in support of their claim the original grant to the said Castro * * * ” (Italics supplied.) There are also numerous other references in the record of the proceedings before the Land Commission showing that the original grant was “filed” with it.
Upon completion of its work, the Land Commission deposited its records in the office of the Surveyor General. The Act of May 18, 1858, ch. 39, § 1 (11 Stat. 289), made it the duty of the Secretary of the Interior to cause to be collected and deposited in the same office, “all official books, papers, instruments of writing, documents, archives * * * that may be found in the unauthorized possession of any individual.” By the same act the Surveyor General was required to safely keep such documents. The presumption is that the officers performed their duties. In the absence of proof to the contrary, we must presume that the original grant was in the possession of the Surveyor General of California.
This is sufficient to show that if we consider the record of the proceedings before the Land Commission, filed with the District Court, the original grant was in fact filed with the Commission. On the other hand, if we do not so consider such record, then we must presume that it was in the hands of the Surveyor General, so that under either theory the Surveyor General did in fact have the original grant. The evidence quoted shows the loss or destruction thereof. In view of what has been said, there seems to be justification for the suggestion that the statements quoted from the original majority opinion were improvidently made.
As amended on rehearing, the majority holds that the copy of the grant in the Bissell record is inadmissible because: (1) “all the authorities are agreed that a thorough search for the original must be made” in order for a copy of an ancient document to be admissible, and “no such search was proved to have been made by the government in this case”; and (2) it does not appear from the record of the Bissell case “that there was any deposit or recordation in the public archives of the Republic of Mexico of the claimed grant to Castro.”
With respect to the majority holding that the copy of the grant in the Bissell record is inadmissible because there was no proof of a thorough search for the original, the testimony quoted, I believe, shows the contrary.
With respect to the second holding that there must be proof of recordation of the grant in the Mexican archives, I believe the majority has confused this suit with a proceeding, before the Land Commission. In the latter, such recordation should be shown. But after action by the Commission on the claim presented, and its final affirmance, the parties cannot thereafter in a separate suit require proof of such facts. If such proof were required it would be contrary to Beard v. Federy, supra, and Thompson v. Los Angeles F. & M. Co., supra. It is there shown that if a patent is issued pursuant to a decree confirming a grant, it is that “record” which *58is conclusive, or in other words; parties rely on their patents. Here,. of course, there was no necessity for appellee to issue a patent to itself. Under such circumstanc'es, I doubt that the original grant, or a copy thereof, need be shown in a separate suit, such as this.' No reason appears why the decree itself should not be sufficient.
IV. Property Covered by the Grant.
The Castro grant conveyed the “island in all its extent.” The question arises as to whether this description is sufficient to cover the land in question.
It has been mentioned that the Sloat Board commenced negotiations for the purchase of the island on July ,23, 1852. The next day, in reply to the letter from the Sloat Board, Bissell answered that he would sell his interest in the island a.t “$250 Two hundred & fifty dollars per acre, for that portion of the ‘Island’ lying south of the mam body of the tule or low ground and $50 Fifty dollars per acre for that portion lying north of the high or dry land, the first supposed to contain about. nine hundred acres and the last about thirteen hundred acres.” On July 7, 1852, Bissell offered to sell “the whole Island” for $160,-000. The contract entered into between the owners and the government dated December 10, 1852, described the property to be conveyed as: “ * * * Mare Island * * * including all the tule or low land and marsh belonging to the same, or which has ever been reputed or claimed to belong to the same * * * and all privileges, rights or claims to the waters, harbors, and creeks supposed or claimed to belong to the same tract known as Mare Island.”
On December 13, 1852, the Secretary of the Navy wrote the Sloat Board asking their estimate of the value of Mare Island “with all its appendages.” On the same date, this board advised the Secretary the amount of their estimate, stating that “the Island including the tule opposite Vallejo contains about nine hundred acres in addition to a large tract of tule,” which description included the land in controversy.
The actual deed, dated January 4, 1853, described the. property as: “Mare Island in the Bay of San Pablo, as recently surveyed by the board of officers of the United States sent to California for the selection of a site for the Navy .Yard there, including all the Tule or low land and Marsh belonging to the same or which has ever been reputed or claimed to belong to the same. * * * ”
On February 9, 1853, the Secretary of Navy wrote the President, stating ‘that he was contemplating the selection of Mare Island as the site of the Navy Yard and Naval Depot in pursuance of the Act- of August 31, 1852, c. 109, § 3 (10 Stat. 100, 104); that “negotiations have been in progress for the purchase of this island and its appendages for some time past”; that there was some doubt as to whether or not the United States did not at that time own title to the land, and therefore requested the reservation of “Mare Island, together with all its appendages of Tule or Marsh land ordinarily reputed to belong to said island. * * *”
■On February .11, 1853, the President made the reservations recommended, and the following day the Secretary of Navy advised the Secretary of the Interior of the reservation, describing the land in the identical language quoted. This last letter was answered by the Commissioner of the General Land Office, on February 16, 1853, advising that the order of reservation had been duly recorded in his office.
The opinion of the Attorney General, of April 9, 1853, sáid: “I am satisfied that the State of California may set up, and probably maintain, title, as against the United States, to so much of Mare Island as is subject to overflow by water, whether periodically or otherwise, that is, at least, to all below high water mark.”
The decree of confirmation by the commission on May 8, 1855, confirmed the grant to Mare Island, describing it as “an Island is bounded by the water’s edge.” The unsigned decree of the District Court, March 2, 1857, confirmed the grant to Mare Island “with its natural boundaries.”
The land in controversy was shown as a part of Mare Island in the Dyer Survey, approved by the United States Surveyor General of California on September 17, 1863.
On September 17, 1873, the chief of the Bureau of Yards and Docks, Navy Department, acting under authority of the Secretary of Navy, appointed a board of civil engineers to present a plan for the development of the Navy Yard at Mare Island.
The commandant of the Navy Yard, Mare Island, wrote the Chief of the Bureau on September 26, 1873, that “Mare *59Island” included the land here in controversy.
The board thus appointed, on September 17, 1873, made its report on November 19, 1873, from which we quote:
“The extreme length of this island, including a large tract of tule on the northern side, and extending toward Napa and Sonoma, is about ten miles, and its average width, including tule, about three-quarters of a mile.
“The area of upland is 741 acres, and of the tulelands on the east side, which will be available for yard purposes, is 135 acres.
“No accurate measurement has been made of the area of the tule on the northern side, but an approximate area is 3,973 acres. * * *
“Soon after our arrival the commandant of the yard * * * informed us that a question had been raised as to the validity of the title held by the United States to the tract of tule on the northerly side of the island. * * * ”
The commandant of the Mare Island Navy Yard advised the Register at Sacramento, Cal., on November 24, 1873 that the United States claimed the land here in question, and likewise advised the Board of Supervisors of Solano county, Cal., by letter dated the following day.
The United States Surveyor General instructed one Freeman to make a survey of Mare Island (in accordance with the Act of July 1, 1864, c. 194, 13 Stat. 332) on July 19, 1877. Freeman made his survey thereafter, showing the land in question, and the area of Mare Island as 5,337.22 acres. Notice that the survey had been made was published in accordance with the act. On July 5, 1879, an attorney for the then alleged owners of the land in controversy protested against the Freeman Survey to the Surveyor General, and on July 16, 1879, protested likewise to the commissioner of the Land Office. On August 7, 1879, the Surveyor General forwarded the survey to the commissioner, saying that the survey should be limited to the lands lying south of those in controversy, and: “I consider the survey incorrect in that it not only includes tracts which are properly islands in themselves but also embraces a large quantity of tide lands. * * * ”
It does not appear that the Freeman Survey was approved by the Commissioner as provided in the act. Evidence was also introduced to show that one E. H. Sawyer (referring to Sawyer v. Osterhaus, supra), was, at the time the letter of the Surveyor General was written, the corresponding clerk who wrote the letter.
On December 22, 1883, the chief of the Bureau of Yards and Docks advised the Secretary of Navy that “Mare Island” included the “tule” or “swamp” land in dispute.
In a corrected report of Spanish and Mexican grants in California complete to February 25, 1886, prepared by the State Surveyor General, “G. W. P. Bissell et al.” are shown as “confirmee” of Mare Island, the area of which is shown to be 5,527.22 acres.
In San Francisco Sav. Union v. Irwin, decided July 8, 1886, supra, it is indicated that the land in question was not covered by the grant.
In Sawyer v. Osterhaus, supra, decided February 7, 1914, it is said that the land in controversy “is physically a part of the body of land officially known and designated as ‘Mare Island.’ ”
The Commissioner of the General Land Office wrote the Register and Receiver at San Francisco, on September 16, 1914, regarding certification to the State of California of certain swamp lands on Mare Island, saying that: “As the whole of the island was granted to Castro, such a description would include the lowland or the tule and marsh, as well as the high or uplands.”
United States Surveyor Lightfoot, acting under instructions of the Surveyor General dated January 6, 1915, made his report of examination and investigation of alleged “Swamp and Overflowed” land and extent of Mare Island, that the land in question was a part of Mare Island.
Francis E. Joy, United States Cadastral Engineer, acting under instructions of United States Surveyor General dated January 27, 1921, made his report on “Lands Properly Belonging To Mare Island,” on October 23, 1922. His opinion seemed to be that the lands in question were tidelands, and his plat sent with the report was not accepted, and was ordered revised. The revised plat was accepted on November 8, 1923, and shows the land in question as a part of Mare Island.
One of the appellants herein brought suit in the District of Columbia against the Secretary of the Interior, in which suit, on May 27, 1924, a peremptory writ of man*60damus was issuecj directing the Secretary to decide whether the land here in question was or was not “swamp land” on September 28, 1850. On January 10, 1925, the Secretary decided that such lands were swamp in character, and “that it was above ordinary high-water mark and formed a contiguous body attached to the higher portion of Mare Island.”
On February 12, 1925, the Secretary of the Navy wrote the Secretary of the Interior concerning this land, and, after outlining certain facts, said: “From the foregoing it seems clear that the grant to Victor Castro of Mare Island ‘in the entire extent’ included all of the tule lands which physically formed an integral part thereof. If it had been intended to eliminate the tule lands from this grant such sweeping language would not have been used. The words ‘in the entire extent’ clearly indicate that it was intended to grant all lands which in any way were connected with and formed part of Mare Island.”
Many maps were introduced in evidence. Nineteen of these maps were dated in 1850 or prior, the earliest being dated 1775, being a Spanish map by Ayala. Four of the maps were dated in 1850. Of these three were made by Ringgold of the United States Navy, and the other was a United States Coast Survey map. From this evidence it is quite possible to infer that Mare Island included the land in question. Approximately thirty maps’ dated from 1851 to 1931 were also introduced. In all but two or three of these maps Mare Island is depicted as including the land in controversy.
There was also introduced in evidence a plat showing cross-sections of the land in controversy. The line of the mean high tide is shown and the line of the surface of the land is depicted by using notes of surveys made in 1850 to 1852. The plat is some evidence that the land in controversy was, in 1850, higher than the line of mean high tide.
Some of the foregoing evidence is inadmissible, and with respect thereto consideration has been given to it herein for historic purposes only, some of it of only slight probative effect, but, considering the difficulty now of proving the extent of the island at the time of the confirmation, I believe that the admissible evidence before us shows that the land in controversy was at such time above the line of mean high tide, as the trial court held.
In United States v. Pacheco, 2 Wall. (69 U.S.) 587, 590, 17 L.Ed. 865, it is said: “By the common law, the shore of the sea, and, of course, of arms of the sea, is the land between ordinary high and low-water mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails.”
The decree of confirmation, stating the boundary as “the water’s edge,” would therefore mean the line of mean high tide, and such a description would include the land in question.
V. Other Questions.
Appellee contends, also, that from the time of the cession until the grant was finally confirmed or rejected, the lands ceded were reserved, and therefore could not pass to the state under the Swamp Act.
In San Francisco v. Le Roy, 138 U.S. 656, 670, 11 S.Ct. 364, 368, 34 L.Ed. 1096, it was said that the Swamp Act “was never intended to apply to lands held by the United States charged with any equitable claims of others, which they were bound by treaty to protect.” Appellee also contends that the evidence shows possession of the land in question by Castro, which is an equitable claim (without the necessity of considering the decree), and therefore the land could not pass to the state.
Discussion of these questions is unnecessary in view of the conclusion I have heretofore reached.
In retrospect it seems to me that appellants’ concessions on rehearing have made it impossible to legally support a title in appellants. The decision of the District Court should be affirmed.
For the reasons above set forth, I dissent from the majority opinion as amended and from the order denying the petition for rehearing.