Boyle v. Hinds

SAWYER, Circuit Judge (after stating the facts). The plaintiff claims that McIntosh had a perfect Mexican title, and that it was unnecessary for his grantee, O’Farrell, to present his claim for confirmation; that, his title being perfect, congress had no constitutional power to deprive him of his land in case of his failure to present bis claim under the act of 1S51. Minturn v. Brower, 24 Cal. 644, is relied on as authority for this position. Under the view I take, it may be conceded that it was unnecessary to present the claim; but the claimant did present his grant, and submit it to examination, and asked its confirmation under the act of congress. The questions as to the genuineness and extent of the grant were litigated between the government and the claimant before a tribunal having jurisdiction to determine them. The grant was confirmed to the extent of two square leagues, and no more. The juridical possession was put in evidence, and the extent of the land to which the claimant was entitled in fact determined. The claimant did not appeal, and the determination became final. He had a right of appeal under the act, and could have gone from court to court, and ultimately had the question directly adjudicated by the supreme court of the United States in that proceeding, whether he had a title to the full extent of the juridical possession or not. The same courts would then have passed upon his title in a direct proceeding to establish his claim to the whole, that are now called upon to determine the same question collaterally. The law afforded him tribunals to determine this very question between him and the United States. The very object of the law was to definitely ascertain what land belonged to Mexican grantees, and what to the United States, in order that the United States might dispose of that which it owned to other parties. The owner of the grant availed himself of the right afforded by the act of congress, and the question between him and the United States was litigated and determined: If he had appealed to the supreme court in that proceeding — a direct proceeding to determine the validity and extent of the grant, the amount of land to which he was entitled under his perfect grant, if it be such — and the supreme court had determined that he must be limited to two leagues, I apprehend that the same question could not be litigated over again collaterally in the same or other courts. The same questions now raised could just as well have been presented then as now. The land commission and the courts on appeal had jurisdiction to determine them. They were embraced within the issues, and actually litigated and determined. The fact that the claimant did not appeal cannot affect the question. If he chose to accept the decision of the inferior tribunal, he is bound by it. Gray v. Dougherty, 25 Cal. 266; Garwood v. Garwood, 29 Cal. 515. Besides, the fifteenth section of the act of 1S51 makes the adjudication final between the government and the claimant, and it must be regarded as res adjudicata. The proceedings ending in a decree limiting the confirmee to two leagues are clearly judicial. The survey and 1112 patent but carry out the decree of confirmation. The patent is the final authentic record of the proceeding, and is conclusive evidence between the parties of the extent of the grant and the correctness of the location. This appears to me to be the result upon authority, as well as upon principle, where the claimant under a Spanish grant, whatever the character of the grant may be, has presented his claim, litigated it with the government in the tribunals provided for the purpose, and had the genuineness and extent of the grant determined. The following authorities lead to this conclusion: Leese v. Clark, 20 Cal. 423, 18 Cal. 571; Teschemacher v. Thompson, Id. 26; Beard v. Federy, 3 Wall. [70 U. S.] 491, 492; Rodriguez v. U. S., 1 Wall. [6S U. S.] 591; Treadway v. Semple, 28 Cal. 655. Judgment must be rendered for defendant with costs, and it Is so ordered.