Cassidy v. Carr

Ahpboyal of a Mexican Geant.—If the claimant of a Mexican grant of land which gives a perfect title, presents the same to the Board of Land Commissioners for confirmation, under the Act of Congress of 1851, and it is confirmed and surveyed, and the survey is approved and a patent issued, but by the survey a portion of the land included within the juridical measurement of the Mexican authorities is excluded, the claimant is estopped from afterwards asserting title to the land not included in the survey made by the United States.

Appeal from the District Court, Third Judicial District, County of Monterey. August 5, 1834, Josepha Vallejo petitioned Governor Figueroa for a grant of a rancho called “ Chualar,” within the boundaries of the present county of Monterey. Accompanying the petition was a diseño, and a reference was made to the ayuntamiento of Monterey. A favorable import was made; the priests of the Mission of San Carlos consented to the grant. A reference was then made to the Alcalde, who reported favorably, and a definitive grant was made of the land known by the name of “ Chualar,” bounded by the ranchos Rincon de Buenna Esperanza, Rio de Monterey, Rancho de Canulo and Sierra de Santa Fe. The grant was then approved by the Departmental Assembly. On the 6th day of September, 1839, the grantee abandoned the grant to Juan Malarin, who petitioned for a renewal of the grant to him. After the usual proceedings, there was a renewal of the grant to Malarin, and an approval by the Departmental Assembly, and juridical possession .was given by metes and bounds. There was a map. accompanying the expediente, and the rancho was described as containing two square leagues, a ltttle more or less. Juan Malarin died prior to April, 1852, and Mariano Malarin was his executor, and on the 2d day of April, 1852, petitioned the Board of United States Land Commissioners, appointed under the Act of 1851, for a confirmation of the grant. The Commissioners confirmed the grant. An appeal was taken by the United States to the District Court for the Southern District of California, and the judgment of the Land Commissioners was affirmed, on the 11th day of January, 1856. On the 5th day of February, 1856, the United States waived the right of appeal. A survey was then made, which was, on the 25th day of March, 1862, returned into the United States District Court, and on the next day exceptions were taken to the survey, and on the 12th day of June, 1865, the survey was confirmed by said Court. No appeal was taken from the decree confirming the survey. This .was an action of ejectment to recover possession of the whole Rancho known as “Ckualar.”' The plaintiffs claimed under Malarin. The defendants were in possession of three hundred and twenty acres of land in location number four hundred and seventy-seven, of unsurveyed lands, San Francisco Land District, fractional north half of section eight; fractional northwest quarter and fractional northeast quarter of section nine; and southwest half of southwest quarter of section four, in township number sixteen, range number five east, Mount Diablo Meridian. Also, two hundred and eighty acres of land in location number four hundred and seventy-eight, of unsurveyed lands, San Francisco Land District, southeast quarter of southwest quarter, fractional southeast quarter and fractional east half of northeast quarter of section four. Also fractional northwest quarter of section three, in township number sixteen, range number five east, Mount Diablo Meridian. The land of which the defendants were in possession was within the exterior boundaries of the grant made to Malarin by the Mexican nation, but outside of the exterior boundaries of the grant as confirmed and surveyed by the United States. The defendants claimed title to the land of which they were in possession, under certificates of purchase issued to them by the State of California, under an Act of the Legislature, approved April 23, 1858, entitled, “An Act to provide for the location and sale of the unsold portion of the five hundred thousand acres of land donated to this State for school purposes, and the seventy-two sections donated to this State for the use of a seminary of learning.” The Court below rendered judgment in favor of the plaintiffs, and, on application of the defendants, granted a new trial. The plaintiffs appealed from the order granting a new trial.