Van Valkenburg v. McCloud

Field, C. J. delivered the opinion of the Court Cope, J. concurring. In Doll v. Meador (16 Cal. 296) we had occasion to consider the effect of the eighth section of the Act of Congress of September, 1841, by which 500,000 acres of land were donated to several States, designated by name in its first section, and the same quantity to each new State which should be thereafter admitted into the Union. The language of the section with reference to the States designated differs materially from its language with reference to new States which might subsequently be created. As to the old States, the words are inoperative to pass the fee from the General Government. It was so held by the Supreme Court of the United States in Foley v. Harrison (15 How. 447). “The words of the Act of 1841,” said the Court, “ are that there shall be granted to each State,’ not that there is hereby granted. The words import that a grant shall be made in future.” The very terms, the absence of which was thus considered as excluding a construction giving to the act the operation of a present grant to the old States, are used when new States are referred to. The language as to the new States is, “ there shall be and hereby is granted ” to each of them, upon its admission into the Union, the quantity designated. This language imports a present, not a future grant, and it operates to vest the specific quantity in each new State immediately upon its admission into the Union. California, therefore, upon her admission acquired a present and vested interest in the 500,000 acres, with a right to select the same, in such manner as her Legislature might direct, out of any of the public lands of the United States, except such as were or might be reserved from sale by any law of Congress or the proclamation of the President—the selections to be made in parcels conformably to sectional divisions and subdivisions prescribed by the general system of surveys of the United States, and of not less than three hundred and twenty acres each. With reference to the old States, the act provides that the selections may be made at any [336] time after the public lands in those States respectively have been surveyed according to existing laws. But with reference to the new States, the time at which the selections may be made is not designated. The concluding words of the grant to them—providing that the land is “ to be selected and located as aforesaid ”— refer (as we held in Doll v. Meador) only to the manner and form of the selection, and the quantity which the several parcels must embrace. As we said in that case: “ Conformity in the locations with the sectional divisions and subdivisions is required to preserve intact the general system of surveys adopted by the Federal Government, and to prevent the inconvenience which would ensue from any departure therefrom. When, therefore, any location is made by the State previous to the survey of the United States, it must be subject to change if subsequently, upon the survey being made, it be found to want conformity with the lines of such survey. With this qualification, and the further qualification of a possible reservation by a law of Congress or a proclamation of the President previous to the survey, which may require further change or the entire removal of the location, we do not perceive, either in the language of the act or the object to be secured, any limitation upon the right of the State to proceed at once to take possession and dispose of the quantity to which she is entitled by the grant. It would hardly be pretended that she would be deprived of the bounty of the General Government if no surveys were ever directed by its authority, or that the enjoyment of the estate vested in her would be suspended indefinitely by reason of its inaction in the matter. The legislation of the State has proceeded upon a construction of the Act of Congress similar to that which we have given, and under it interests of great magnitude have grown up, any disturbance of which would lead to consequences greatly to be regretted.” At the time the opinion was rendered from which this citation is taken (October, 1860) the selections made under the authority of the State from unsurveyed lands exceeded 150,000 acres. Since then the number must be greatly increased; and so long as the restrictions .upon the action of the State, in making the selections provided by the Act of Congress, are secured, it is difficult to perceive the force of the objections urged against a selection from [337] unsurveyed lands. In Doll v. Meador we held that objections, such as are made in the present case, were untenable, and we reaffirm the decision in that respect. This conclusion disposes of the appeal. The selection of Carnduff was made by the location of school warrants in December, 1852. These warrants were in fact powers of attorney from the State, authorizing the holder to select for her three hundred and twenty acres of the 500,000 donated by the United States. Carnduff was in the possession of the premises at the time, and he erected a dwelling-house thereon, in which he resided, cultivating the land, and exercising ownership over it, until June, 1857, when he conveyed the premises, together with the warrants, to Alonzo McCloud, and the latter, in September of the same year, conveyed them to the defendant, who immediately entered upon the premises, and has continued in their possession ever since. The original selection was not strictly in conformity with the lines of the subsequently made survey of the United States, but after such survey the defendant caused it to be changed so as to conform with the lines of the sectional divisions and subdivisions established by the survey, and deposited his warrants in the United States Land Office of the district. The plaintiff claims under a location of school warrants made in the land office of Benicia, after the survey of the United States, and he relies for a recovery upon the alleged invalidity of the location of Carnduff in 1852, because made on unsurveyed land. This ground of reliance, for the reasons we have stated, fails him in the case. Judgment affirmed.