Merle v. Dixey , 31 Cal. 130 ( 1866 )

By the Court, Rhodes, J.:

The plaintiffs rely upon a Governor’s grant to Guilliermo Hinckley, purporting to have been made in 1846, of a lot of land consisting of one hundred varas in length by fifty varas in width, situated in Yerba Buena. The papers, which they claim are copies of those which constitute the expediente, were rejected by the Court when offered in evidence, on the ground that the claim had not been presented to the United States Board of Land Commissioners for confirmation, and they allege that the ruling was erroneous, and rely upon this point for a reversal of the judgment of nonsuit. The case presents the same questions that were very fully considered and decided in Leese v. Clark, 18 Cal. 535, and which were again passed on in Steinbach v. Moore, 30 Cal. 402, where the doctrine of Leese v. Clark was affirmed.

The learned counsel for the plaintiff admits, very candidly, that he “ must, of course, avoid the authority and also the reasoning of Leese v. Clark.” On our part we as freely acknowledge the force of some of his points, and would be disposed to give them their just due was the conclusion to which they tend an open question in this Court, but they do not take the case out of the principles laid down in that case. It is useless to attempt to ascertain whether the Governor was a co-ordinate distributing officer to the extent to which the municipal powers go, or where the land goes, in case of forfeiture for non-representation of the claim under the Governor’s grant to the Board of Land Commissioners; for, whatever might be the answer to these questions, it has been determined that the title acquired under the Governor’s grant is taken, not under the authority of the pueblo, but adversely to it, and that the Board had jurisdiction of the claim under the provisions of the eighth section of the Act of Congress of March 3d, 1851.

The dimensions of the lot, whether greater or less than a solar, or of the same area, do not give character to the grant as adverse or in subordination to the pueblo title, but that question, as was held in Leese v. Clark, depends on the granting power. In Leese v. Clark the land granted to two persons consisted of two lots of one hundred varas each ; and in this case the lot is fifty by one hundred varas, but we do not understand that either in that case or in this the lots were of' the then recognized dimensions of solares.

Without passing on the other points presented by either party, we are of the opinion that the case must be disposed of on the authority of Leese v. Clark and Steinbach v. Moore.

Judgment affirmed.