Circuit Court, N. D. California. Oct. 31, 1864.

365

21FED.CAS.—24

SAN FRANCISCO V. UNITED STATES.

[4 Sawy. 553.]1

MEXICAN GRANTS—PUEBLO—WHATCONSTITUTED—BOUNDARIES ANDUSES—DISPOSAL OF PUEBLO LANDS—DISTRICTATTORNEY.

1. In the San Francisco Pueblo Case, both the United Statesand the city having appealed from the decree of theland commission confirming the claim of the city, andthe United States having subsequently withdrawn anddismissed their appeal: Held, that such dismissal of theappeal on the part of the United States may be regardedas an assent by the government to the main facts uponwhich the claim of the city rests, namely: the existence ofan organized pueblo at the site of the present city upon theacquisition of the country on July 7, 1846; the possessionof such pueblo of proprietary rights in certain lands; andthe succession to such proprietary rights by the city.

[Cited in U. S. v. Vallejo, 1 Black (66 U. S.) 562; Grisarv. McDowell. Case No. 5,832; Montgomery v. Bevans, Id.9,735; Knight v. United States Land Ass'n, 142 U. S. 161,12 Sup. Ct. 261.]

2. A pueblo of some kind, having an ayuntamiento, composedof alcaldes, regidores and other municipal officers, existedat the site of the present city of San Francisco, as early as1834, and continued in existence until and subsequent tothe cession of the country to the United States.

3. By the laws of Mexico in force at the date of the conquest,a pueblo or town, when once-established and officiallyrecognized, became entitled, for its own use and the use ofits inhabitants, to four square leagues of land.

[Cited in Brownsville v. Cavazos, 100 U. S. 139.]

4. Though in some instances under the Mexican laws anofficer was appointed to mark off boundaries of the foursquare leagues to which new pueblos were entitled, andto designate the uses to which particular tracts should beapplied, yet the right of the pueblos and their in habitants

Case No. 12,316.Case No. 12,316.

to the use and enjoyment of the lands was not madedependent upon such measurement and designation.

5. The government retained the right to control the use anddisposition of pueblo lands, and to appropriate them topublic uses until by action of the city authorities, they werevested in private proprietorship.

6. The lands assigned to pueblos, whether by general lawregulating their limits to four square leagues or by specialdesignation of boundaries, were not given to them inabsolute property with full right of disposition andalienation; but to be held by them in trust for the benefitof the entire community, with such powers of use,disposition and alienation as had been already or mightafterward be conferred upon them or their officers for thedue execution of the trust.

7. The United States attorney is the regular officer of thegovernment, having charge of all 366 its legal proceedingswithin his district, subject only to the general directionand supervision of the attorney-general; and when othercounsel are employed in these proceedings, it is to aid himin their management, not to assume his authority or directhis conduct.

[On transfer from the district court of the UnitedStates for the Northern district of California, pursuantto act of July 1, 1864.]

This case, involving the title of the city of SanFrancisco to the pueblo lands, was originallycommenced by the filing of a petition by the city beforethe board of land commissioners on July 2, 1852.The petition set forth a claim made by the city toso much of the northern portion of the peninsula ofSan Francisco as would contain an area of four squareleagues, upon the ground that upon the acquisition ofthe country, July 7, 1846, the then pueblo, now city,of San Francisco, was a town having a population ofabout one thousand inhabitants, and that under andby virtue of the laws of Mexico, it was entitled assuch pueblo, to this quantity of land. There was muchtestimony taken and a number of able counsel engaged,and after a very thorough presentation of the case,the land commissioners, on December 21, 1854, filed

their decree confirming to the city all the land southof the fort and casamata at Fort Point, and north of aline running from the southern part of Rincon Pointthrough Lone Mountain to Point Lobos, and knownas the “Vallejo Line.” The decree did not contain anyexceptions or reservations, and did not refer to thecharacter or nature of the title held by the city; butwas in terms merely a confirmation of the claim madeby the city, within the limits mentioned, particularlydescribing them. In rendering their decision,Commissioners Thompson and Farwell concurred inthe prevailing opinion, and Commissioner Felch fileda dissenting one. The former discussed at great lengththe Spanish and Mexican laws in reference to pueblos,the various documents and evidence presented in thecase, and among others, the so-called Zamoranodocument. This paper, since ascertained and admittedto be spurious, purported to be a copy of a letterfrom Governor Figueroa to General Vallejo, datedMonterey, November 4, 1834, containing an approvalby the government of a plan therein referred to ashaving been presented by General Vallejo in referenceto the pueblo of San Francisco, adopting the Vallejoline, which had been marked out by him, as theboundary, and providing for the installation of the firstayuntamiento, or town council there. It was called theZamorano document from the fact that it purportedto be attested as a true copy by Zamorano, formerlysecretary of the territorial government of California.Besides the Zamorano document, there were severalother documents introduced and discussed, as to thegenuineness of which no question has been made,showing or tending to show the existence of anayuntamiento either at the presidio of San Francisco orat the Mission Dolores as early as 1834 or 1835. Uponthis branch of the subject, and for the purpose ofexhibiting the general character and style of reasoning

of the prevailing opinion, the following extracttherefrom may be given:

“It is probable, from the testimony, that when thepueblo was first organized, the site of the villageor town proper was intended to be at the presidio;but subsequently, from the superior advantages of theanchorage at the place called Yerba Buena, that pointwas selected as the most eligible for that purpose. Itappears from the deposition of Wm. A. Richardson,and the communication of Governor Castro annexedthereto, that in the autumn of 1835 Richardson wasemployed to lay off and make a plan of a townat that point, which plan was communicated to thegovernor and approved by him. About the same timethe resolution of the deputation was passed,authorizing the ayuntamiento to grant building lots atthat place, which was communicated to the municipalauthorities in the order of Governor Castro of thetwenty-sixth of October, 1835, and dated just six daysafter the communication to Richardson approving theplan of the town as submitted by him. There is anevident attempt in the testimony of Richardson tomake it appear that the municipal organization herereferred to was for a pueblo at the Mission Dolores orSan Francisco de Asis, as it was indifferently called.But this is so palpably contradicted by the otherevidence in the case, both documentary and oral,and so inconsistent with the other parts of his owntestimony, as to entitle it to no weight whatever.”

“It is objected further, that even admitting theseproceedings to be sufficient for the establishment ofa pueblo, so far as the territorial authorities wereconcerned, that in order to give them effect andvalidity under the law which authorized them, theapproval of the supreme government was necessary.This is unquestionably true, and we accordingly findthat the resolutions of the territorial deputationdirected that they should be communicated to the

government at Mexico for that purpose. There is noevidence in the case that such approval ever was had;but the resolutions to that effect were doubtless sentto the government by Governor Figueroa, as we canscarcely imagine that one who was so punctual andexact in the discharge of all his official duties, wouldhave neglected it in this instance. The existence ofthe pueblo appears to have been uniformly recognizedby the public authorities from that time, and its civilofficers continued in the exercise of their functionswithout any question as to their authority or thelegality of their acts up to the change of government, aperiod of nearly twelve years. Such approval, therefore,according to well recognized legal principles, would bepresumed.”

The conclusions arrived at by CommissionersThompson and Farwell were stated by 367 them at the

close of their opinion, in the following language:“First. That a pueblo or town was established under

the authority of the Mexican government, in California,on the site of the present city of San Francisco, andembracing the greater portion of the present corporatelimits of said city. Second. That the town soestablished continued and was in existence as amunicipal corporation on the seventh day of July, 1846.Third. That at or about the time of its establishment,certain lands were assigned and laid off in accordancewith the laws, usages and customs of the Mexicannation, for the use of the town and its inhabitants, andthe boundaries of said lands determined and fixed bythe proper officers appointed for that purpose by theterritorial government. Fourth. That the boundaries soestablished are those described in the communicationfrom Governor Figueroa to M. G. Vallejo, datedNovember 4, 1834, a copy of which is filed in the case,marked Ex. No. 18, to the deposition of said Vallejo.These conclusions bring the case, in our opinion,clearly within the operation of the presumption raised

in favor of a grant to the town by the fourteenthsection of the act of the third of March, 1851 [9 Stat.634], and entitled the petitioner to a confirmation ofthe land contained within the boundaries described inthe document above mentioned.”

Commissioner Felch, in his dissenting opinion, heldthat the testimony failed to establish the foregoingconclusions arrived at by his associates, and presenteda number of reasons tending to show, as he claimed,that there had not been established any municipalorganization of a town within the limits described inthe decree of confirmation. But at the same time heheld that the city was entitled to the presumption of agrant in her favor, under the fourteenth section of theact of March 3, 1851. His language, forming the closeof his opinion, was as follows:

“Proof is given of the existence of a small townknown as Yerba Buena, on the site of the presentcity, on the seventh of July, 1846; this was requisiteunder the law to entitle the present corporation toa presumption of a grant; but this being proved, thepresumption extends to the lots as they existed at thetime of the passage of the act (of 1851), and wasnot confined to the limits of the original Mexicantown. It was the American city as it existed in 1851,which congress had in its eye, and not the littlegerm from which it sprung, when it provided formaking its corporation the depository of the titles tothese lands, and this design of quieting the titles bythe presumption of a grant to the city would fail tobe secured, and the manifest object of the law bedefeated, if all the lots within its chartered limits, atthe time the act was passed, were not embraced inthe decree of confirmation. Beyond these limits thepetitioners have established no rights. The decree,therefore, should, in my judgment, be entered in favorof the city for the lots within the corporation limits as

described and established in the charter of 1850, andno more.”

The decree of the land commission, which followedthe prevailing opinion, was filed, as before stated,on December 21, 1854. Both parties were apparentlydissatisfied; the city, because the entire claim had notbeen allowed, and the United States, because so muchof it was allowed; and both gave notice of intentionto prosecute an appeal to the United States districtcourt, and to that court the case was taken. Afterward,in 1857, the appeal on the part of the United Stateswas voluntarily withdrawn by direction of the attorney-general, and in accordance with a stipulation filed bythe United States district attorney, the appeal wasdismissed by the court, and an order entered givingthe city leave to proceed upon the decree of the landcommission, as upon a final decree. The city, however,declined to accept the proffered leave; but on thecontrary, insisted upon its full claim, and continued toprosecute its appeal. Such was the condition of thecase, and the position of the parties upon the passageof the act of July 1, 1864 (13 Stat. 332), authorizinga transfer of the case to the United States circuitcourt. In accordance with the provisions of that act,the district court, on the fifth of September, 1864,transferred the case to the United States circuit court.On the fourth of October following it was arguedand submitted, and on the thirty-first of October wasdecided.

John W. Dwinelle and John H. Saunders, CityAtty., for city of San Francisco.

Delos Lake, U. S. Atty., and John B. Williams, forthe United States.

Briefs on behalf of the United States were alsofiled by Nathaniel Bennett, Edmund Randolph andHorace Hawes. The briefs were very elaborate, andwere devoted mainly to the question of the existence,

or non-existence, of the asserted pueblo under theMexican government.

FIELD, Circuit Justice. This case comes before thiscourt upon a transfer from the district court underthe act of congress of July 1, 1864, “to expedite thesettlement of titles to lands in the state of California.”It was in the district court on appeal from the decreeof the board of land commissioners, created by theact of March 3, 1851. It involves the consideration ofthe validity of the claim asserted by the city of SanFrancisco, to a tract of land situated in the city andcounty of San Francisco, and embracing so much ofthe peninsula, upon which the city is located, as willcontain an area of four square leagues.

The city presented her petition to the board of landcommissioners in July, 1852, asserting in substance,among other things, that in pursuance of the laws,usages and customs of the government of Mexico, andthe act of the departmental assembly of California, ofNovember, 368 1833, the pueblo of San Francisco was

created a municipal government, and became investedwith all the rights, properties and privileges of pueblosunder the then existing laws, and with theproprietorship of the tract of land of four squareleagues above described; that the pueblo continuedsuch municipality and proprietor until after theaccession of the government of the United States,July 7, 1846, and until the passage of the act of thelegislature of the state of California incorporating thecity; and that she thereupon succeeded to the propertyof the pueblo, and has a good and lawful claim to thesame.

In December, 1854, the board of commissionersconfirmed the claim of the city to a portion of thefour square leagues, and rejected the claim for theresidue. The land to which the claim was confirmed,was bounded by a line running near the MissionDolores, and known as the “Vallejo Line.” That line

was adopted principally in reliance upon thegenuineness and authenticity of the documentdescribed in the proceedings as the Zamoranodocument. The spuriousness of that document is nowadmitted by all parties. From the decree of the boardan appeal was taken by the filing of a transcript of theproceedings and decision with the clerk of the districtcourt. The appeal was by statute for the benefit ofthe party against whom the decision was rendered, inthis case of both parties, of the United States, whichcontroverted the entire claim, and of the city, whichasserted a claim to a larger quantity of land; and bothparties gave notice of their intention to prosecute theappeal. Afterward, in February, 1857, the attorney-general withdrew the appeal on the part of the UnitedStates, and in March following, upon the stipulationof the district attorney, the district court ordered thatappeal to be dismissed, and gave leave to the city toproceed upon the decree of the commission as upona final decree. The case therefore remained in thedistrict court upon the appeal of the city alone, andthat is its position here. But the proceeding in thedistrict court, being in the nature of an original suit,the prosecution of the appeal by either party keeps thewhole issue open. “The suit in the district court,” saidMr. Justice Nelson in U. S. v. Ritchie, 17 How. [58 U.S.] 534, “is to be regarded as an original proceeding,the removal of the transcript, papers, and evidenceinto it from the board of commissioners, being but amode of providing for the institution of the suit inthat court. The transfer, it is true, is called an appeal;we must not, however, be misled by a name, but lookto the substance and intent of the proceeding. Thedistrict court is not confined to a mere re-examinationof the case, as heard and decided by the board ofcommissioners, but hears the case de novo, upon thepapers and testimony which had been used before theboard, they being made evidence in the district court;

and also upon such further evidence as either partymay see fit to produce.”

But though the whole issue is thus open, thedismissal of the appeal on the part of the UnitedStates may very properly be regarded as an assentby the government to the main facts upon whichthe claim of the city rests, namely: The existence ofan organized pueblo at the site of the present cityupon the acquisition of the country by the UnitedStates on the seventh of July, 1846; the possessionby that pueblo of proprietary rights in certain lands,and the succession to such proprietary rights by thecity of San Francisco. The district attorney does not,therefore, deem it within the line of his duty tocontrovert these positions, but on the contrary admitsthem as facts in the case, contending only that thelands appertaining to the pueblo were subject, until bygrant from the proper authorities they were vested inprivate proprietorship, to appropriation to public usesby the former government and, since the acquisitionof the country, by the United States. He thereforeinsists upon an exception from the confirmation to thecity, of land heretofore reserved or occupied by thegovernment for public uses; and I do not understandthat the counsel of the city objects to an exceptionof this character. It is unnecessary, therefore, to recitethe historical evidence of the existence of a puebloprevious to, and at the date of, the acquisition of thecountry at the present site of the city of San Francisco,which is very fully presented in the elaborate opinionfiled by the commission on the rendition of itsdecision. Since that decision was made, the questionhas been considered by the supreme court of thestate; and in an opinion in which the whole subjectis examined a similar conclusion is reached; and ifanything were wanting in addition to the argumentsthus furnished, it is found in the able and exhaustive

brief of the counsel of the city.2 The documents ofundoubted authenticity, to which the opinions and thebrief of counsel refer, establish beyond controversythe fact that a pueblo of some kind, having anayuntamiento composed of alcaldes, regidores, andother municipal officers, existed as early as 1834;and that the pueblo continued in existence until and

subsequent to the cession of the country.3

The action of the officers of the United 369 States

in the government of the city and the appointmentor election of its magistrates after the conquest, bothpreceding and subsequent to the treaty of peace,proceeded upon the recognition of this fact; and thetitles to property within the limits of the present city tothe value of many millions rest upon a like recognition.

The material question, therefore, for determination,as the case stands before this court, relates to theextent of the lands in which the pueblo was interested.It is not pretended that such lands were ever markedoff and surveyed by competent authority. It isadmitted, as already stated, that the so-calledZamorano document given in evidence is spurious.The question presented must therefore be determinedby reference to the laws of Mexico at the date of theconquest.

As stated by the commissioners in their opinion,there can be no doubt that by those laws, pueblosor towns, and their residents, were entitled to theuse and enjoyment of certain lands within prescribedlimits immediately contiguous to and adjoining thetown proper; that this right was common to the citiesand towns of Spain from their first organization, andwas incorporated by her colonies into their municipalsystem on this continent; and that the same continuedin Mexico, with but little variation, after her separationfrom the mother country. And there is as little doubtthat by those laws a pueblo or town, when once

established and officially recognized, became entitled,for its own use and the use of its inhabitants, to foursquare leagues of land. The compilation known as theRecopilacion de Leyes de las Indies contains severallaws relating to this subject. The sixth law of title 5of book 4 provides for the establishment of towns bycontract with individuals, and upon compliance withthe conditions of the contract, for the grant of foursquare leagues of land, to be laid off in a squareor prolonged form, according to the character of thecountry.

The opinion of the assessor or legal adviser of thevice royalty of New Spain given to the commandantegeneral in October, 1785, upon the petition of certainsettlers in California, for grants of tracts of landsituated within the limits claimed by pueblos,recognizes this right of pueblos to have foursquareleagues assigned to them. His language is that thegrants “cannot and ought not to be made to themwithin the boundaries assigned to each pueblo, whichin conformity with the law six, title 5, liber 4, of theRecopilacion, must be four leagues of land in a squareor oblong body according to the nature of the ground;because the petition of the new settlers would tendto make them private owners of the forests, pastures,water, timber, wood, and other advantages of the landswhich may be assigned, granted, and distributed tothem, and to deprive their neighbors of these benefits.It is seen at once that their claim is entirely contraryto the directions of the forementioned laws, and theexpress provision in article 8 of the instructions forsettlements (poblaciones) in the Californias, accordingto which all the waters, pastures, wood, and timber,within the limits which in conformity to law may beallowed to each pueblo, must be for the commonadvantage—so that all the new settlers may enjoy andpartake of them, maintaining thereon their cattle, and

participating of the other benefits that may beproduced.”

But the royal instructions of November, 1789, forthe establishment of the town of Pitic, in the provinceof Sonora, is conclusive as to the right of pueblos inCalifornia under the laws of Spain. These instructionswere made applicable to all new towns that shouldbe subsequently established within the generalcomandaneia, which included the province ofCalifornia. They gave minute directions for theformation and government of the new pueblos, andreferring to the laws of the Indies already cited,declared that there should be granted to the townsfour leagues of land in a square or prolonged form.They also provided for the distribution of building andfarming lots to settlers, the laying out of pasture landsand lands for the propios, the residue to constitute theegidos or commons for the use of the inhabitants.

The general provisions of the laws of the Indies,to which these instructions and the opinion of theassessor refer, continued in force in Mexico after herseparation from Spain. They were recognized in theregulations of November, 1828, which were adoptedto carry into effect the colonization law of 1824, andin the regulation of the departmental assembly ofAugust, 1834, providing funds for towns and cities.They were referred to in numerous documents in thearchives of the former government in the custody ofthe surveyor-general. The report of Jimeno, for manyyears secretary of the government of California, foundin the expediente of Dona Castro made in February,1844, is cited by the commissioners in their opinionas removing all doubt on this point. The report is asfollows:

“Most Excellent Governor: The title given to DonaCastro is drawn, subject to the conditions that wereinserted in many other titles during the time ofGeneral Figueroa, in which they subjected the parties

to pay censas (taxes) if the land proved to belong tothe egidos of the town. I understand that the town ofBranciforte is to have for egidos of its population foursquare leagues, in conformity to the existing law ofthe Recopilacion of the Indies, in volume the second,folios 88 to 149, in which it mentions that to thenew town that extent may be marked, to which effectit would be convenient that your excellency shouldcommission two persons deserving your confidence, inorder that, accompanied by the judge of the town, themeasurement indicated may be made, and it 370 may

be declared for egidos of the town the four squareleagues, leaving to the deliberation of your excellencyto free some of the grantees of the conditions towhich they are subject. The supreme judgment of yourexcellency will resolve as it may deem it convenient.Manuel Jimeno. Monterey, February 8, 1844.”

The documents to which reference has been madeare sufficient to establish the position that pueblosonce formed and officially recognized as such, becameby operation of the general laws entitled to have foursquare leagues of land assigned to them, for their useand the use of the inhabitants. It does not appearthat formal grants were made to the new pueblos,though in some instances an officer was appointed tomark off the boundaries of the four square leagues,and to designate the uses to which particular tractsshould be applied. But the right of the pueblos andtheir inhabitants to the use and enjoyment of the landswas not made dependent upon such measurement anddesignation.

It follows from these views that the pueblo, whichis admitted to have been regularly established at thesite of San Francisco on the seventh of July, 1846, was,as such pueblo, vested with the right to four squareleagues of land, to be measured either in a square orprolonged form, according to the nature of the country,excepting from such tract such portions as had been

previously dedicated to or reserved for public uses,or had become private property by grant from lawfulauthority.

It is difficult to determine with precision the exactcharacter of the right or title held by pueblos to thelands assigned to them. The government undoubtedlyretained a right to control their use and disposition;and to appropriate them to public uses until theyhad been vested in private proprietorship. Numerouslaws have been cited to show that the title remainedabsolutely in the government. The same laws werecited to the supreme court of this state when thesubject was before that tribunal, and in relation tothem the court said: “We see nothing in these lawsopposed to the views we have already expressed, thatthe towns had such a right, title and interest in theselands as to enable them to use and dispose of themin the manner authorized by law or by special orders,and consonant with the object of the endowmentand trust. Undoubtedly the right of control remainedin the sovereign, who might authorize or forbid anymunicipal or other officer to grant or dispose of suchlands, even for the purposes of the endowment ortrust. Such general right, with respect to a publiccorporation, exists in any sovereign state, and must,of course, have existed in the absolute monarchy ofSpain, where the property of private corporations andindividuals was to a great degree subject to the royalwill and pleasure.” Hart v. Burnett, 15 Cal. 569. Andreferring to objections to the theory of absolute title inthe pueblo, and the questions which upon that viewmight be suggested, the court said: “There is but onesensible answer to these questions, and we think thatanswer is given in the laws themselves, and in therecorded proceedings of the officers who administeredthem, and who must be presumed to have interpretedthem correctly. It is, that the lands assigned to pueblos,whether by general law regulating their limits to four

square leagues, or by special designation ofboundaries, were not given to them in absoluteproperty, with full right of disposition and alienation,but to be held by them in trust for the benefit of theentire community, with such powers of use, dispositionand alienation, as had been already or might afterwardbe conferred for the due execution of such trusts,upon such pueblos, or upon their officers.” Id. 573.And this view, the court adds, fully reconciles theapparently conflicting disposition of the laws and thecommentaries of publicists respecting the relativerights of the crown and the municipalities to whichcounsel had referred.

In this view of the nature of the title of the puebloand of the city, its successor, I fully concur; and Iam of opinion that under the provisions of the act ofMarch 3, 1851, the city is entitled to a confirmationof her claim. I regret that the recent transfer of thecase to the circuit court, and the great pressure ofother engagements since, have prevented me fromconsidering at greater length the interesting questionspresented. To those who desire to extend theirinquiries, the elaborate opinions to which I have madefrequent reference, and the able brief of counsel willfurnish ample materials.

A decree will be entered confirming the claim ofthe city of San Francisco to a tract of land, situated inthe county of San Francisco, and embracing so muchof the peninsula upon which the city is located, aswill contain an area equal to four square leagues asdescribed in the petition. From the confirmation willbe excepted such parcels of land within said tract ashave been heretofore reserved or dedicated to publicuse by the United States, or have been by grant fromlawful authority vested in private proprietorship. Theconfirmation will be in trust for the benefit of lot-holders under grants from the pueblo, town, or city;and as to any residue, in trust for the use and benefit

of all the inhabitants. A decree will be prepared bycounsel in conformity with this opinion, and submittedto the court.

In accordance with the foregoing opinion, a decreewas entered on November 2, 1864, confirming theclaim of the city, and on the same day an order wasentered allowing an appeal in behalf of the UnitedStates to the United States supreme court. Soonafterward, one John B. Williams, an attorney,371 claiming to act on the part of the United States,

made a motion to vacate the order allowing an appeal,to open the decree, and to grant a rehearing in thecause. In December following, Delos Lake, UnitedStates attorney, under instructions from the UnitedStates attorney-general, joined in the motion. Theproceedings and points made are fully stated in thefollowing opinion rendered on denying the motion,filed May 11, 1865:

FIELD, Circuit Justice. This case was submitted tothe court for its consideration on the fourth of Octoberlast, and was decided on the thirty-first of the samemonth. The decree confirming the claim of the city wassettled and entered on the second of November, andon the same day an appeal was allowed at the instanceof the United States to the supreme court.

On the fourteenth of November, John B. Williams,styling himself “special counsel” for the United States,gave notice that he would move the court on thetwenty-first of the same month, to vacate the orderallowing the appeal, to open the decree confirming theclaim of the city, and to grant a rehearing of the case,upon the ground that the decision of the circuit court“was rendered under a misapprehension of the facts,and without considering the brief of the United States,which was suppressed by the clerk of this court.” Insupport of the motion, the notice was accompaniedwith an affidavit of Mr. Williams, in which he statesthat he is “informed and believes” that the clerk of

the court “unwarrantably and in derogation of” his(said Williams) rights “as a member of this bar, andof the rights of the United States as litigants in theirown courts, suppressed” his briefs in the case, and“with-held them from the circuit judge, and that thearguments submitted in behalf of the United Stateswere in consequence of such usurpation of power bythe clerk, not considered by the circuit judge in hisdetermination of the case, but that said cause wasdecided under, a misapprehension of the positionstaken by, and the proofs offered in behalf of theUnited States.”

The affidavit contains other allegations bashed uponthe assumption that the brief had been suppressedand withheld from the circuit judge. It also refers tocertain concessions alleged to have been made by thedistrict attorney, which will be particularly consideredhereafter.

In this proceeding the district attorney was notconsulted, and that officer upon hearing of it,addressed a note to the “special counsel,” refusing hisassent to the motion, and stating that all motions andother proceedings in the conduct of the cause must bemade by him. Mr. Williams, however, persisted in themotion, and endeavored to have the same heard by thedistrict judge, who did not sit in the case or participatein its decision.

The position of the district attorney in claiming thecontrol of the cause was entirely correct. He is theregular officer of the government, having charge of allits legal proceedings within his district, subject only tothe general direction and supervision of the attorney-general. When other counsel are employed in theseproceedings, it is to aid him in their management, notto assume his authority or direct his conduct. Theposition of Mr. Williams was solely that of assistantcounsel. He could not control the proceedings in the

case, or bind the government by his admissions oraction.

And it appears also from the statement of thedistrict attorney, that Mr. Williams at the time hadbeen retained and paid as counsel by claimants ofwhat are known as “outside lands;” that is, of landswithin the asserted limits of the pueblo, but outsideof the tract confirmed to the occupants by ordinancesof the city, and the legislation of the state and thegeneral government, and that the interests of thesethird parties, upon the question of excepting from thedecree of confirmation the government reserves, weredirectly in conflict with those of the United States.

But there were other considerations whichundoubtedly governed the conduct of the districtattorney. Some of the statements made in the affidavithe knew, were inaccurate, and the correctness of otherstatements he had good grounds to distrust He wasalso influenced, as we have reason to believe, bya just sense of the impropriety of asking a districtjudge, though holding the circuit court, to vacate adecree rendered by the circuit judge, in a case ofsuch magnitude and importance, immediately after thatofficer had left the state, not upon grounds apparentupon the record, but upon statements, the truth ofwhich rested chiefly in the knowledge of the latter.

The district judge did not sit in any of the casesheard at the October term by the circuit judge, andit is a matter of regret that the benefit of his counseland assistance was not had in the determination ofthe present case. The familiarity of that officer withthe laws and customs and policy of Mexico in thedisposition of her public domain, and in theestablishment and endowment of her municipalbodies, would have greatly lessened, the labor ofinvestigating the case. But as he did not participatein its consideration, the district attorney, as we maysuppose, naturally felt the indelicacy of asking any

subsequent interference by him, which, under thecircumstances, would have been to ask him to do anact of judicial discourtesy.

The attorney-general, in subsequently directing thedistrict attorney to unite in the motion, was underthe impression that it was the ordinary case of anapplication for a re-hearing before the same judgewho rendered the decision. When made acquaintedwith the circumstances, he directed, the postponement372 of the motion until it could be heard by that

officer. In the investigation of the case, the briefs ofthe special counsel were carefully examined. His firstbrief was banded by the clerk to the circuit judgethe day on which the case was submitted, and thesecond brief was handed to him on the day of itspresentation. Both were retained in his possessionuntil after the decision was rendered and announcedin court. Numerous other briefs bearing upon thequestion of the existence of a pueblo at the site ofthe present city of San Francisco upon the cession ofthe country, were also examined by him, particularlythe elaborate brief of Mr. Nathaniel Bennett, late oneof the justices of the supreme court of this state; thebrief of the late Mr. Edmund Randolph, and the briefof Mr. Horace Hawes, of this city. These briefs wereall upon the same side of the question taken by the“special counsel,” and are characterized by great abilityand learning, and until the appearance of the brief ofthat gentleman they were supposed to have exhaustedthe argument on that side.

These several briefs were received by the circuitjudge without any indorsement by the clerk, and arestill in his possession. The briefs of Mr. Williamswere returned to the office of the clerk. But as it wasgenerally understood at the time that he was retainedby the occupants of “outside lands,” and the districtattorney knew of no other authority for his appearanceas counsel, the clerk indorsed upon one of them the

reason for not marking it filed, and upon the otherbrief that it was marked filed by mistake, and leftthem both in that condition among the papers of thecase to be given to the author when called for. Hisaction in this respect was at that time approved bythe circuit judge. No such injurious suggestion wasmade, or if made, entertained for a moment, that Mr.Williams was also retained by the United States, andthus had a “divided duty” between the settlers and thegovernment.

From these indorsements alone the special counseldrew his conclusion that his briefs were suppressed.Upon these indorsements alone, as he stated on theargument of this motion, he made the affidavit thathe was “informed and believes” his briefs weresuppressed and withheld from the circuit judge. Hisconclusion in this respect was illogical; there is nonecessary connection between the indorsements madeand the suppression alleged. The indorsements gaveno such information as represented.

The subject provokes further comment, but werefrain, and will only observe that it is the first timewithin our judicial experience that any counsel has hadthe hardihood to make oath to what must necessarilyhave been with him only a matter of inference, andassuming his inference to be a fact has proceeded tocast imputations of misconduct upon officers of thecourt.

In the opinion rendered in this case, after statingthat by the appeal on the part of the city the wholeissue was open, the court said: “But though the wholeissue is thus open, the dismissal of the appeal onthe part of the United States may very properly beregarded as an assent by the government to the mainfacts upon which the claim of the city rests, namely:the existence of an organized pueblo, at the site ofthe present city, upon the acquisition of the countryby the United States, on the seventh of July, 1846,

the possession by that pueblo of proprietary rights incertain lands, and the succession to such proprietaryrights by the city of San Francisco. The district attorneydoes not, therefore, deem it within the line of hisduty to controvert these positions, but on the contrary,admits them as facts in the case, contending only thatthe lands appertaining to the pueblo were subject,until by grant from the proper authorities they werevested in private proprietorship, to appropriation topublic uses by the former government, and since theacquisition of the country by the United States. He,therefore, insists upon an exception from theconfirmation to the city of land heretofore reserved oroccupied by the government for public use, and I donot understand that the counsel of the city objects toan exception of this character.”

The views thus expressed of the effect which mayjustly be given to the dismissal of the appeal of theUnited States, the special counsel finds inconsistentwith the views expressed in the case of Le Roy v.Wright [Case No. 8,273], and the concessions allegedto have been made by the district attorney he assertsare denied by that officer.

There is no inconsistency in the views expressed inthe two cases. In Le Roy v. Wright [supra], certainofficers of the army of the United States, acting underorders of the secretary of war, had taken possessionof a tract of land adjoining the premises claimed bythe complainant at Black Point, within the city limits,and commenced the erection of fortifications for theprotection of the harbor of San Francisco, and haddeclared their intention to take like possession of thepremises in controversy, and to appropriate them forthe erection of barracks and other buildings requiredin connection with the fortifications. The complainant,by his suit, sought to restrain such appropriation untilcompensation to him for the property was previouslymade. He derived his title under the city of San

Francisco, and, as evidence that the ownership ofthe property had been adjudged to the city as thesuccessor of the former pueblo, he produced thedecree of the board of land commissioners confirmingher claim. As the appeal from this decree on the partof the United States had been dismissed by consentof the attorney-general, he regarded the decree asclosing the controversy between. 373 the city and the

government as to the land to which the claim wasconfirmed, and so his counsel contended.

But the court held that in this view of the casethe counsel was mistaken; that, had the city withdrawnher appeal, such result would have followed; but asshe continued to prosecute it for an additional quantitybeyond that confirmed, the whole issue was opened.The counsel of the United States was thereforeallowed to introduce certain documents on file in theoffice of the survey-or-general of the United States forCalifornia, tending to show that a tract embracing thepremises in question had been excepted and reservedfrom sale for public purposes, by order of thepresident, as early as November, 1850; evidence whichhad been inadvertently omitted when the case waspending before the board of land commissioners. Itwas not then pretended by counsel or held by thecourt, nor has it ever been pretended or held since,that the dismissal of the appeal by the United Stateswas an act without any significance. On the contrary,the dismissal has always been regarded as anadmission by the government of the main facts uponwhich the claim of the city rests. The landcommissioners had adjudged that there was anorganized pueblo at the site of the present city of SanFrancisco; that such pueblo held certain proprietaryrights to land, and that the city had succeeded to thoserights. The United States said in substance, throughtheir highest legal officer, we admit the correctnessof this adjudication; we acknowledge the law and the

facts to be as there declared; and we consent thatthis recognition of the validity of the claim of thecity to some lands shall be carried into the decreeof the court. And it was so carried into the decree,and that decree still remains of record in full force.Although on appeal the whole issue be opened, thisrecognition of the rights of the city does not lose allefficacy as evidence on the new hearing. Admissionsonce made in a cause are not necessarily excludedfrom consideration because a second trial of the sameissue is had.

The consent of the government thus remaining onthe files of the court, and being embodied in itsdecree, the only questions of difficulty in the casenecessarily related to the extent and boundaries ofthe claim of the city, and of the reservations of thegovernment for public purposes.

In the statement filed by the district attorney, hementions that, after the case had been submitted,one or more meetings were had at chambers beforethe circuit judge, and additional testimony put in anddiscussion had relative to the government reserves;and that “free conversations took place touching thelaw and the facts;” that he conceded that by repeateddecisions of the supreme court of the state, theexistence of a pueblo was the settled law; and that inview of this state of the law, in connection with thefact that the appeal on behalf of the United Stateshad been dismissed by the attorney-general, he neitherasked nor desired a re-examination of the question inthis court.

To this statement, we will only add that theunderstanding of the circuit judge of the concessionsmade by the district attorney, and of the assent madeby the counsel of the city with respect to landsreserved or occupied by the government for publicpurposes, was expressed in the paragraph cited abovefrom his opinion. That paragraph was written after the

“free conversations” of counsel before him, “touchingthe law and the facts,” and it was read to the districtattorney and to the counsel of the city before theopinion was delivered in court. Neither of thesegentlemen expressed at the time any dissent fromits language, or any intimation that the circuit judgehad misapprehended the concessions, nor was anysuggestion made by the district attorney, until afterthe opinion was published, that the statement of theconcession was in any particular too broad andcomprehensive.

These concessions, however, did not determine thecase. They only obviated the necessity of setting fortha detailed statement of the evidence upon which theclaim of the city rested. Kef erring to them, the opinionsays: “It is unnecessary, therefore, to recite thehistorical evidence of the existence of a puebloprevious to and at the date of the acquisition of thecountry at the present site of the city of San Francisco,which is very fully presented in the elaborate opinionfiled by the commission on the rendition of itsdecision. Since that decision was made the questionhas been considered by the supreme court of thestate, and, in an opinion in which the whole subjectis examined, a similar conclusion is reached; and ifanything were wanting in addition to the argumentsthus furnished, it is found in the able and exhaustivebrief of the counsel of the city.”

The decision was based upon the documentaryevidence found in the record, and the action of theofficers of the government after the conquest.

“The documents,” says the opinion, “of undoubtedauthenticity, to which the opinions and brief of counselrefer, establish beyond controversy the fact that apueblo of some kind, having an ayuntamientocomposed of alcaldes, regidores, and other municipalofficers, existed as early as 1834, and that the pueblocontinued in existence until and subsequent to the

cession of the country. The action of the officers ofthe United, States in the government of the city, andthe appointment or election of its magistrates after theconquest, both preceding and subsequent to the treatyof peace, proceeded upon the recognition of this fact;and the titles to property 374 within the limits of the

present city, to the value of many millions, rest upon alike recognition.”

We have thus disposed of the main positions uponwhich the motion rests. The affidavit, it is true,contains several other matters; it details at some lengththe connection of the special counsel with the case,and it gives an account of communications made to thepublic journals of the city in relation to the decisionof the court and the brief of counsel, but it is notperceived that these particulars, however interestingin themselves, have any pertinency to the motionpresented. The affidavit also attempts to state what thespecial counsel contended for in his brief, but as thisappeared by the brief itself, which was considered bythe court previous to the decision, no information isimparted by the statement.

It follows that the motion to open the decree andto grant a rehearing must be denied. It only remainsto dispose of that part of the motion which asks thatthe order granting the appeal be vacated. We aredisposed to think that a vacation of the order was onlydesired as a preliminary to the opening of the decree.Of course, if the United States desire the appeal tobe withdrawn, their wishes in this respect will becarried out. The order denying the motion generallywill therefore be subject to their right to renew themotion in this particular. Motion denied.

When the judgment of the court was announcedthat the motion would be denied, it was suggestedby counsel for parties claiming lands within the foursquare leagues confirmed, that the decree of the court,entered on the second of November last, did not

embody with entire precision the decision expressedby the opinion of the court delivered at the time, andthat said decree should be modified in some respectsin its language, in order to avoid any uncertainty ordoubt as to its purport and meaning. It was thereforeordered, the attorneys of the city consenting thereto,that the entry of the order denying said motion bestayed until counsel could be heard for a modificationof the decree, so that a modification, if allowed, mightbe made at the same time as the entry of the orderdenying the motion.

Subsequently, on the eighteenth of May, 1865,counsel having been heard on the suggestion, the orderdenying the rehearing was entered, and with it anorder vacating the previous decree, and directing thatin lieu thereof the following decree be entered as thefinal decree in the cause, which was accordingly done:

“The City of San Francisco v. The United States.“The appeal in this case taken by the petitioner, the

city of San Francisco, from the decree of the board ofland commissioners to ascertain and settle private landclaims in the state of California, entered on the twenty-first day of December, 1854, by which the claim ofthe petitioner was adjudged to be valid, and confirmedto lands within certain described limits, coming onto be heard upon the transcript of proceedings anddecision of said board, and the papers and evidenceupon which said decision was founded, and furtherevidence taken in the district court of the UnitedStates for the Northern district of California pendingsaid appeal—the said case having been transferred tothis court by order of the said district court, underthe provisions of section four of the act entitled ‘Anact to expedite the settlement of titles to lands in thestate of California,’ approved July 1, 1864—and counselof the United States and for the petitioner havingbeen heard, and due deliberation had, it is ordered,adjudged, and decreed that the claim of the petitioner,

the city of San Francisco, to the land hereinafterdescribed, is valid, and that the same be confirmed.

“The land of which confirmation is made is atract situated within the county of San Francisco, andembracing so much of the extreme upper portionof the peninsula above ordinary high-water mark (asthe same existed at the date of the conquest of thecountry, namely: the seventh of July, A. D. 1846),on which the city of San Francisco is situated, aswill contain an area of four square leagues—said tractbeing bounded on the north and east by the Bayof San Francisco; on the west by the Pacific Ocean;and on the south by a due east and west line drawnso as to include the area aforesaid, subject to thefollowing deductions, namely: Such parcels of land ashave been heretofore reserved or dedicated to publicuses by the United States; and also such parcels ofland as have been by grants from lawful authorityvested in private proprietorship, and have been finallyconfirmed to parties claiming under said grant, by thetribunals of the United States, or shall hereafter befinally confirmed to parties claiming thereunder by saidtribunals, in proceedings, now pending therein for thatpurpose; all of which said excepted parcels of land areincluded within the area of four square leagues above-mentioned, but are excluded from the confirmation tothe city. The confirmation is in trust, for the benefitof the lot-holders under grants from the pueblo, town,or city of San Francisco, or other competent authority,and as to any residue, in trust for the use and benefitof the inhabitants of the city.

“FIELD. Circuit Justice.“San Francisco, May 18, 1865.”From this decree and directly after its entry, both

parties moved for an appeal to the United Statessupreme court. The motions were denied, the courtfiling the following opinion, giving its reasons for thedenial:

FIELD, Circuit Justice. Both parties to this casedesire to appeal from the final decree entered on theeighteenth instant—the United States from the wholeof the decree, 375 and the city of San Francisco from

so much of the decree as includes in the estimateof the quantity of four square leagues confirmed, theparcels of land which have been reserved or dedicatedto public uses by the United States.

When the appeal from the decree as originallyentered on the second of November last was allowed,it was supposed, without examination, that an appealwould lie to the supreme court Since then ourattention has been called to the act of July 1, 1864 [13Stat. 333], under which the circuit court acquired itsjurisdiction, and to the fact that it makes no provisionfor a review of the decisions of the court.

The jurisdiction of the supreme court, underprevious acts of congress, over the judgments anddecrees of the circuit court, is limited to a reviewof final judgments and decrees in cases originallyinstituted in that court, or transferred to it from thecourts of the several states, or removed to it by appealor writ of error from the district courts of the UnitedStates. The judiciary act of September 24, 1789, § 22(1 Stat. 73); the act of March 3, 1803, § 2, in additionto the judiciary act (2 Stat. 244); the act of July 4, 1836,§ 17, to promote the progress of the useful arts (5 Stat.124); the act of July 4, 1840, § 3, in addition to theacts respecting the judicial system of the United States(5 Stat. 392); the act of May 31, 1844, amending thejudiciary act (5 Stat. 658).

The act of March 3, 1851 [9 Stat. 631], to ascertainand settle private land claims in the state of California,does not provide for any consideration by the circuitcourt of cases of this character. The jurisdiction overthese cases is by that act vested, in the first instance,in a board of commissioners, and afterward on appealfrom the decision of the board, in the district court.

From the decrees of the district court an appeal liesdirectly to the supreme court.

The act of July 1, 1864 [13 Stat 333], authorizes atransfer from the district court to the circuit court ofcases of this kind, where the district judge is interestedin the land, the claim to which is pending before him,and also where the case affects the title to lands withinthe corporate limits of any city or town; but it does notconfer any right of appeal from the action of the circuitcourt in these cases after they are transferred.

The supreme court, by the constitution, takes itsappellate jurisdiction over cases “with such exceptionsand under such regulations as the congress shallmake.” And the designation, by acts of congress, of thecases to which this jurisdiction shall extend, has beenheld to be a legislative declaration that all other casesare excepted from it.

“When the first legislature of the Union,” saysMr. Chief Justice Marshall, “proceeded to carry thethird article of the constitution into effect, they mustbe understood as intending to execute the powerthey possessed of making exceptions to the appellatejurisdiction of the supreme court. They have not,indeed, made these exceptions in express terms. Theyhave not declared that the appellate power of thecourt shall not extend to certain cases; but they havedescribed affirmatively its jurisdiction, and thisaffirmative description has been understood to implya negative on the exercise of such appellate poweras is not comprehended within it.” Durousseau v. U.S., 6 Cranch [10 U. S.] 307. And, in illustration ofthis principle, reference is made to the provision ofthe law which allows a writ of error to a judgmentof the circuit court, where the matter in controversyexceeds the value of $2000. “There is no expressdeclaration,” says the chief justice, “that it will not liewhere the matter in controversy shall be of less value.But the court considers this affirmative description

as manifesting the intent of the legislature to exceptfrom its appellate jurisdiction all cases decided in thecircuits where the matter in controversy is of lessvalue, and implies negative words.”

It follows, therefore, that the appellate jurisdictionof the supreme court exists only in those cases inwhich it is expressly granted. In conformity with thisprinciple, it has been held that such jurisdiction doesnot extend to final judgments in criminal cases, itnot having been conferred by congress. A questionarising in a criminal case can only be brought beforethe supreme court for decision upon a certificate of adivision of opinion between the judges of the circuitcourt. Forsyth v. U. S., 9 How. [50 U. S.] 571. Sounder the judiciary act of 1789 [1 Stat. 73], jurisdictionto review a judgment or decree of the circuit court,rendered in an action brought before it from thedistrict court on writ of error, was denied, as the actonly mentioned judgments and decrees brought beforethe circuit court on appeal from the district court. U.S. v. Goodwin, 7 Cranch [11 U. S.] 108. And in Barryv. Mercein, 5 How. [46 U. S.] 120, it was decidedthat under the twenty-second section of the judiciaryact, which provides for a review by the supremecourt of final judgments and decrees of the circuitcourt, where the matter in dispute exceeds the sumor value of $2000, the appellate power of the courtdid not exist unless the matter in dispute was money,or some right, the value of which in money could becalculated and ascertained. In that case the controversywas between parents for the custody and care of theirchild, a matter, as justly observed, rising superior toall money considerations; yet the court refused toentertain jurisdiction, observing that there were nowords in the law which, by any just interpretation,could be held to authorize it to take cognizance ofcases to which no test of money value could beapplied; that a similar limitation upon its appellate

power existed with reference to judgments in criminalcases, although the liberty or life of the party 376 might

depend on the decision of the circuit court; and thatinasmuch as it could exercise no appellate powerunless it was conferred by act of congress, the writ oferror issued in the case must be dismissed. [Barry v.Mercein] 5 How. [46 U. S.] 103.

From these authorities—and others to the sameeffect might be cited—it is clear that in the absence ofany provision in the act of July 1, 1864, giving a rightof appeal from the decision of the circuit court in thepresent case, the right does not exist.

Nor is the absence of such provision an oversighton the part of congress. It is evident, we think, fromthe general language of the act, and the object soughtto be accomplished by it, that it was the intention ofthe legislature to give finality to the action of the circuitcourt in the cases transferred to its jurisdiction.

The act was designed, as its name purports, toexpedite the settlement of titles to land in the state.Great delays and embarrassments were found to existin determining the location and boundaries of tractsconfirmed after the question of title had beenadjudicated. The hearing by the district court ofexceptions to surveys returned by the surveyor-general,interposed by parties possessing or asserting adverseinterests, the taking of depositions, the discussion ofcounsel, and the modifications or new surveyssometimes ordered, necessarily occupied the timeusually taken by an ordinary suit at law. Then followedthe right of appeal to the supreme court from theaction of the district court, not merely by the originalcontestants to the proceeding, but by third partiesintervening, whether adjoining proprietors, purchasersunder the original grantee, or persons claiming by pre-emption, settlement, or other right under the UnitedStates. To obviate the delays and expense necessarilyattending proceedings of this character, particularly as

occasioned by the appeal to the supreme court, and torelieve that tribunal, already burdened by a crowdeddocket, the act limited its jurisdiction to cases in whichappeals were then pending, and vested jurisdiction inthe circuit court, over cases in which appeals mightbe subsequently taken. When from the decree of thedistrict court, approving or correcting the survey, noappeal had been taken, “no appeal,” says the act,“to that court shall be allowed, but an appeal maybe taken, within twelve months after this act shalltake effect, to the circuit court of the United States,for California, and said court shall proceed to fullydetermine the matter.”

Following these provisions is the section whichdirects that when the district judge is interested in anyland, the claim to which, under the act of March 3,1851 [9 Stat. 631], is pending before him on appealfrom the board of commissioners, the case shall betransferred to the circuit court, “which shall thereupontake jurisdiction and determine the same.” The actthen proceeds as follows: “The said district courtsmay also order a transfer to the said circuit court ofany other cases arising under said act, pending beforethem, affecting the title to lands within the corporatelimits of any city or town, and in such cases both thedistrict and circuit judges may sit”

At the passage of the act there were only twocases pending in the district courts of California, withreference to which the authority conferred by this lastclause could be exercised—the Case of the City of SanFrancisco, and the Case of the City of Sonoma, bothagainst the United States. The first case had then beenpending in the district court for over eight years. Inthe meantime the city had extended in all directions,and interests of vast magnitude had grown up whichdemanded that the title to the land upon which thecity rested should be, in some way, speedily and finallysettled. The land commissioners had adjudged that the

claim of the city was valid within certain describedlimits. The United States, through their highest legalofficer, had assented to this adjudication; and thedecree of the district court, declaring its finality asagainst the government, had been on record for years,and was then in full force. And by the act itself theUnited States relinquished whatever right and titlethey possessed to the land within the charter limits of1851.

The Case of the City of Sonoma had been likewisepending in the district court on appeal for over eightyears. In this case the United States had, throughthe attorney-general, signified their assent to aconfirmation of the decree of the board, and the noticeof prosecuting the appeal on the part of the city hadnot been given within the six months prescribed bythe act of congress. It was under these circumstancesthat the law was passed authorizing a transfer of thesecases to the circuit court. If an appeal from its actionhad been intended, no beneficial object would havebeen accomplished by the transfer for the same delaywould follow an appeal from the circuit court as wouldfollow an appeal from the district court. Nor can anyreason in that view be assigned for allowing both thedistrict and circuit judges, if they desired, to sit in thehearing of these cases.

If the matter were less clear we might yield to thesuggestion of counsel, and allow the appeal pro forma;but as we have no doubt whatever that our decision isfinal, our duty is plain. We might with equal proprietysign a citation upon an appeal under the twenty-secondsection of the judiciary act where the matter in disputeis less than the sum or value of two thousand dollars.

The decision not being subject to appeal, thecontroversy between the city and the government isclosed, and the claim of the city stands precisely asif the United States had owned the land and by anact of congress 377 had ceded it, subject to certain

reservations, to the city in trust for the inhabitants.Motions to allow an appeal denied.

Subsequently, upon application of the attorney-general, the supreme court of the United Statesordered an appeal to be allowed. The opinion of thecourt upon the application is reported in [U. S. v.Circuit Judges] 3 Wall. [70 U. S.] 673. An appealwas accordingly allowed, but whilst it was pendingcongress passed the following act, which was approvedMarch 8, 1866 [14 Stat. 4]: “An act to quiet the title tocertain lands within the corporate limits of the city ofSan Francisco: Be it enacted by the senate and houseof representatives of the United States of America incongress assembled: That all the right and title of theUnited States to the land situated within the corporatelimits of the city of San Francisco, in the state ofCalifornia, confirmed to the city of San Francisco bythe decree of the circuit court of the United Statesfor the Northern district of California entered on theeighteenth day of May, 1865, be and the same arehereby relinquished and granted to the said city ofSan Francisco and its successors, and the claim of thesaid city to said land is hereby confirmed, subject,however, to the reservations and exceptions designatedin said decree, and upon the following trusts, namely:That all the said land not heretofore granted to saidcity shall be disposed of and conveyed by said city toparties in the bona fide actual possession thereof, bythemselves or tenants, on the passage of this act, insuch quantities and upon such terms and conditions asthe legislature of the state of California may prescribe,except such parcels thereof as may be reserved andset apart by ordinance of said city for public uses.Provided, however, that the relinquishment and grantby this act shall not interfere with or prejudice anyvalid adverse right or claim, if such exist, to saidland or any part thereof, whether derived from Spain,

Mexico or the United States, or preclude a judicialexamination and adjustment thereof.”

At the December term of the supreme court for1866, the term following the passage of this act, theappeal of the United States, and the appeal of thecity were both dismissed by stipulation of the attorney-general and counsel of the city. Townsend v. Greeley,5 Wall. [72 U. S.] 337.

The title of the city of San Francisco, therefore,rests upon the above decree of the circuit court,entered on the eighteenth of May, 1863, and the aboveconfirmatory act of congress. Upon this subject, andreferring to the above act, the supreme court of theUnited States, in Grisar v. McDowell, said: “By thisact the government has expressed its precise will withrespect to the claim of the city of San Francisco to herlands, as it was then recognized by the circuit courtof the United States. In the execution of its treatyobligations with respect to property claimed underMexican laws, the government may adopt such modesof procedure as it may deem expedient. It may act bylegislation directly upon the claims preferred, or it mayprovide a special board for their determination, or itmay require their submission to the ordinary tribunals.It is the sole judge of the propriety of the mode, andhaving the plenary power of confirmation it may annexany conditions to the confirmation of a claim restingupon an imperfect right, which it may choose. It maydeclare the action of the special board final; it maymake it subject to appeal; it may require the appealto go through one or more courts, and it may arrestthe action of board or courts at any stage. The act ofMarch 3, 1851 [6 Stat. 631], is a general act applyingto all cases, but the act of March 8, 1866 [14 Stat. 4],referring specially to the confirmation of the claim tolands in San Francisco, withdrew that claim as it thenstood from further consideration of the courts underthe provisions of the general act. It disposed of the

city claim, and determined the conditions upon whichit should be recognized and confirmed. The title ofthe city, therefore, rests upon the decree of the circuitcourt as modified by the act of congress.” See, also,Montgomery v. Bevans [Case No. 9,735].

NOTE A. The following extracts are from theopinion of the supreme court of the state, in Hart v.Burnett, reported in 15 Cal.:

“On the third of November, 1834, the territorialdeputation authorized the election of an ayuntamiento,to reside at the presidio of San Francisco, to becomposed of an alcalde, two regidores or councilmen,and a sindico-procurador. The ayuntamiento, whenorganized, was to exercise the political functionspertaining to such office, and the alcalde was alsoto perform the judicial functions which the lawsconferred upon him. This decree was communicatedto the military commandant by the governor, on thefourth of November, 1834. An election wasaccordingly held on the seventh of December, 1834,at the presidio of San Francisco, and the ayuntamientoduly installed. A similar election was held on thethirteenth of December of the following year (1835),at the same place, which was then officially designatedas the pueblo of San Francisco. Other elections ofthe same character were subsequently held; and thereare numerous official documents of undisputedauthenticity, which refer to the ‘ayuntamiento of SanFrancisco,’ ‘the alcalde of San Francisco,’ and to the‘pueblo of San Francisco,’ proving, as we think, beyonda doubt, that there was at that place, in 1834, 1835,1836, and subsequently, a pueblo of some kind, withan ayuntamiento composed of alcaldes, regidores, andother municipal officers. What were the rights of thismunicipality, and what the powers of its officers, andthe extent of its territory and jurisdiction, we shallnot now inquire. We here refer merely to the factof the existence, at that time, and at that place, of

such an organization, whether corporate or incorporate.And that fact is proved by the official returns ofelections, by the official acts of the governor andof the territorial or departmental legislature, by theofficial correspondence of government officers, and bythe acts, proceedings, records, and correspondence ofthe 378 officers of the pueblo itself. As a part of the

evidence of this fact, we refer to the election returnsof December 7, 1834, December 13, 1835, December3, 1837, and December 8, 1838; to the governor'sletters of January 31, 1835, October 26, 1835, January19, 1836, January 17, 1839, and November 14. 1843;to the expediente of proceedings between May andNovember, 1835, with respect to certain personsobliged to serve as municipal officers of that pueblo;and to the official correspondence between thealcaldes of that pueblo and the various officers of theterritorial or departmental government of California.”15 Cal. 540.

“The evidence in favor of the existence of a puebloin San Francisco prior to July 7, 1846, and its generalright, for pueblo purposes, to four square leagues ofland, to be measured, according to the ordinanzas,from the center of the plaza at the presidio, is, toour minds, irresistible. 1st. We have the general lawsof Spain and the Indies authorizing the formation ofpueblos, assigning their general boundaries, directinghow they were to be surveyed out, designating the usesto which such lands were to be devoted, and definingthe character or the right which the pueblo acquired inthem, and the control which its municipal authorities,as well as the king and his officers, were to exerciseover them. 2d. We have the special orders of theking, and the highest officers of his government, withrespect to the establishment of pueblos in California,and more particularly for the conversion of presidiosinto pueblos, and the extent of land assigned to thepueblos so formed. 3d. We have documentary

evidence showing that at a very early period, andalmost immediately after the discovery of the Bay ofSan Francisco, the viceroy and governor of Californiacontemplated the establishment of a pueblo at thisidentical point, and that the foundation of the presidioand mission of San Francisco, in 1776, was thenconsidered and so announced as merely preliminaryto the organization of a great town, into which theywere to be converted as soon as a sufficient numberof settlers could be procured for that purpose. 4th.We have documentary evidence of unquestionableauthenticity, showing that the governor and territorialdeputation, in 1834, ordered an election at the presidioof an ayuntamiento, consisting of an alcalde, tworegidores and a syndico—officers recognized by law asbelonging only to pueblos; that this and subsequentelections of the same kind were held at the sameplace; and that such municipal organization was then,and has been ever since, recognized in numerousofficial documents signed by the different governors,secretaries of state, and other government officers,as the ‘pueblo of San Francisco.’ or the ‘pueblo ofSan Francisco de Asis.’ 5th. We have documentaryevidence showing that the political chiefs, deputations,and other government officers, recognized, innumerous official papers, that this pueblo had someinterest in, and its municipal authorities some controlover, the lands within the general limits of four squareleagues; and that, at different periods, they wereauthorized to grant in particular localities within suchlimits, small parcels of these lands to private personsin full ownership; and 6th. We have documentaryevidence showing that the municipal officers of thispueblo did, for a long term of years, both beforeand since the conquest, exercise this authority, bygranting small lots of land to numerous individuals,and that their power was recognized both by theMexican government in California, and by the

government of military occupation which succeeded it.”15 Cal. 563, 564.

NOTE B. Documentary evidence relating to thepueblo of San Francisco from the end of 1834 to July7, 1846. The following synopsis of original papers, ofundoubted authenticity, from the archives, city claim,limantour, etc., will serve to prove, if further evidencebe required, the correctness of the opinion of the court(supreme court of California) on this (the existenceof a pueblo at the site of the present city of SanFrancisco) and some other points:

January 31, 1835, Governor Figueroa writes to M.G. Vallejo, military commandant of San Francisco,acknowledging the receipt of a letter from the latter,dated January 1, and thanking him for havingconstitutionally installed “the ayuntamiento of thatpueblo” (el ayuntamiento de este pueblo).

June 22, 1835, Governor Figueroa sends a circularto the military commandant and alcalde of SanFrancisco. This is indorsed by the alcalde, Franciscode Haro, as having been received and published byhim, in “San Francisco de Asis, July 12, 1835.” It willbe seen from this that even at that early day—the firstyear of the formation of the pueblo, and organizationof the ayuntamiento, at the presidio—it was calledby the official authorities, without distinction, “SanFrancisco,” and “San Francisco de Asis.” Soon afterthis Jose Joaquin Bstudillo applied for a grant oftwo hundred varas, in the place called Yerba Buena.This application was for a larger amount of land thanthat designated for house-lots, and consequently thematter was referred to the territorial deputation. Onthe twenty-second of September, that body, on motionof Alvarado, resolved generally, that the ayuntamientoof San Francisco had authority to grant solares in theplace of Yerba Buena, at a distance of two hundredvaras from the beach.

September 23, 1835, Governor Castro transmittedto the “alcalde constitutional of San Francisco,” a copyof the foregoing resolution of the territorial deputation,with respect to the power of “the ayuntamiento ofSan Francisco” to grant lots two hundred varas distantfrom the sea-shore “in the place called Yerba Buena.”October 28, he addresses another official letter tothe “alcalde of San Francisco de Asis,” containinga brief statement of the substance of the resolutionof September 22. and directing him to inform theresidents of “that pueblo” not to apply to the politicalchief for lots, “as it is one of the favors which theayuntamiento can grant.” For these grants a canon wasto be paid to the ayuntamiento.

There is filed in the city claim a certified copy,from the archives, of an old expediente, which containsseveral important papers. It begins with a petition tothe “gefe politico,” dated May 30, 1834, and purportingto be signed by residents of the ranchos of San Pablo,etc., asking to be separated from the jurisdiction ofthe-port of San Francisco, and annexed to that of SanJose. They allege, as reasons for the proposed change,the distance, the difficulty and danger of crossing thebay, and the want of accommodations for themselvesand families at the presidio, “for a whole year, whenthey shall be called upon to discharge some officein the ayuntamiento,” etc. This petition was, by theterritorial deputation, on the fifth of September, 1835,ordered to be referred to the “ayuntamientos of thepueblos of San Jose and San Francisco,” for reports;and the governor so referred it on the twenty-eighthof September. November 4, the ayuntamiento of SanJose reports in favor of the petition, with the remarkthat the petitioners had previously pertained to thatjurisdiction. December 20, the “ayuntamiento of SanFrancisco” reports against the-petition, denying thegenuineness of the signatures to it, and the correctnessof its statements. With respect to the want of

accommodations at the presidio, it says: “It is a well-known and established fact, that the militarycommandant of the presidio furnished houses to thefunctionaries of the present ayuntamiento as soon asit was installed.” This report is dated, “Port of SanFrancisco,” and is signed 379 by the alcalde, Francisco

de Haro, and the secretary, Francisco Sanchez.1836, January 2, Governor Castro directs a

communication to the “illustrious ayuntamiento of SanFrancisco de Asis,” informing it that he had transferredthe political government of the territory to GeneralNicolas Gutierrez. On the same day Gutierrez directsa communication to the “illustrious ayuntamiento ofSan Francisco,” informing that body that he had beenplaced in possession of the political government of theterritory.

1836, January 22, the alcalde, Jose JoaquinEstudillo, directs an official communication to thesindico-procurador, dated at the “pueblo of SanFrancisco de Asis.”

1836, January 19, Governor Gutierrez transmits tothe “alcalde of San Francisco de Asis,” a copy ofan order received from the supreme government ofMexico.

1836, December 13. Governor Alvarado transmitsto the “very illustrious ayuntamiento of San Francisco,”copies of decrees of the congress of the “sovereignstate of Alta California.”

1837, January 2, Alcalde Martinez sends to thesindico-procurador an order for paper for use of the“office of this ayuntamiento.” It is dated, “Puebloof San Francisco.” There are various other officialpapers signed by Martinez, which are dated in thesame way. Francisco Sanchez, as secretary of “thisillustrious ayuntamiento,” signs various official papersdated “Pueblo of San Francisco.” In one case he dates“Presidio,” and in some others “Yerba Buena.”

1837, August 4, Jose Carrillo appeared as thecommissioner from the departmental government, toadminister the oath to “this municipality,” of obedienceto the constitution of 1836. The acta states that itwas sworn to by the “first alcalde of the port of SanFrancisco de Asis.”

1837, December 3, the primary election “in thepueblo of San Francisco de Asis,” is certified to havebeen held in the “plaza of said pueblo.” The return iscertified by Francisco de Haro, as president; FranciscoGuerrero and Francisco Sanchez, as secretaries; andA. M. Peralta and J. de la C. Sanchez as inspectors.The letter transmitting these returns is dated “SanFrancisco, December 7, 1837,” and directed to the“constitutional alcalde, Ignacio Martinez.” At thesecondary election, the returns of which weretransmitted to the governor on the twenty-third,William A. Richardson was chosen alcalde; but hehaving applied to the governor to be excused fromserving as such, for the ensuing year, Alvarado on thethirtieth, directed a letter to the “constitutional alcaldeof San Francisco,” ordering a new election, which washeld January 8, 1838, and Francisco de Haro electedalcalde in place of Richardson. Domingo Sais was, atthe same time, elected second rejidor, which office, itappears, was also vacant. * * *

1839, January 17. Governor Alvarado transmits toAlcalde de Haro a proclamation for putting into effectthe constitutional system of 1837, and for holdingelections according to the law of November 30, 1836,which he says he received from “the supremegovernment by the last mail!”

1839, January 18, Governor Alvarado sends anotherofficial communication directed “to the alcalde of SanFrancisco,” in which he states that inasmuch as manyindividuals had asked for solares for building housesin the lands of Yerba Buena, which had previouslybeen prohibited from being granted, and he was

desirous of advancing the commerce in that recentcongregation of vecinos, he therefore had decreed(dispuesto) that grants for house-lots may be madeof any part of said prohibited lands; with theunderstanding, however, that those asking for suchconcessions shall present to the government theirpetitions for the favor, with the necessary reports, orinformes. The alcalde is directed to give notice of thisto the vecinos.

1839, January 25, Governor Alvarado directs aproclamation “to the alcalde of San Francisco,” andorders him to give in due publication.

1839, February 28, Governor Alvarado directs “tothe illustrious ayuntamiento of San Francisco” hisproclamation of the previous day (twenty-seventh),dividing all California, from the frontier, of the northto Cape St. Lucas, into three districts, the First districtincluding all north of the ex-mission of San LuisObispo. This district was divided into two partidos,one extending from the north of Sonoma to the Llagas,with Dolores as the cabacera, and the other from theLlagas to San Luis Obispo, with the pueblo of SanJuan de Castro as the cabacera. He also informs thatbody of the appointment of Jose Castro as prefectof that district, and that he must be recognized andobeyed according to the laws.

1839, March 9, Governor Alvarado sends “to thealcalde of San Francisco” a proclamation, and directingthat the notice be given that all petitions for landsor other things should be transmitted to the secretarythrough the prefects, for their reports thereon. Duringthe early part of this year Francisco de Haro continuedto act as “alcalde,” but about the middle or a littleafter, Francisco Guerrero assumed the duties of juezde paz, and continued to act in that capacity till theend of 1841, when he was succeeded by FranciscoSanchez, who held that office to the end of 1843, when

the election was held for two “alcaldes of nomination,”under the new organization made by Micheltorena.

1843, May 23, Francisco Sanchez, as “juez de paz ofthe jurisdiction of the port of San Francisco,” issues anorder to the owners of gardens “in the establishmentof Dolores,” respecting irrigation. He dates this orderin “San Francisco.”

1843, November 14, Governor Micheltorena issuesa proclamation restoring, in part, the old system ofayuntamientos, and discontinuing the prefects from thebeginning of the coming year. The pueblo of SanFrancisco was to elect, on the following December, twoalcaldes, of first and second nomination, the first to actas judge of first instance and to take charge of the prefecture. At this election William Hinckley was electedalcalde of first nomination, and Francisco de Haroalcalde of second nomination. The former resided atYerba Buena, and the latter at the old mission.

1844, January 20, Secretary Jimeno writes to the“first alcalde of the port of San Francisco,”congratulating him, in the name of the govern or, onhis election, and hopes he will devote himself to thepublic welfare, and the improvement of that town andits vicinity.

1844, March 6, Secretary Jimeno directs two officialcommunications to the “first alcalde of San Francisco.”

1844, March 14, Jimeno directs an officialcommunication to “the alcalde of first nomination ofthe port of San Francisco.”

1844, March 30. the superior tribunal addresses anofficial communication to “William Hinckley, alcaldeor first, nomination of San Francisco.” April 29, thetribunal addresses him as “first constitutional alcaldein San Francisco de Asis;” on June 4. as “first alcaldeof San Francisco;” and on October 29, as “first juezof San Francisco,” etc. There are various officialdocuments extant, addressed to him by the governor,the secretary, the military commandant, and other

government officers, as “alcalde of San Francisco,”“alcalde of San Francisco de Asis,” “alcalde of theport of San Francisco,” “alcalde of the pueblo of SanFrancisco,” “alcalde of the pueblo of San Franciscode Asis,” “alcalde of Yerba Buena,” “juez of firstnomination of the pueblo of San Francisco de Asis,”etc. Of the local authorities and private persons, someaddressed him as “alcalde 380 of San Francisco,” some

as “alcalde of San Francisco de Asis,” some as “alcaldeof Yerba Buena,” some as alcalde of the pueblo of SanFrancisco,” etc., etc. Hinckley dated his official papers,sometimes, “pueblo of San Francisco,” sometimes,“court of first nomination of San Francisco de Asis,”“Yerba Buena,” etc., etc. In the official correspondencebetween him and the second alcalde, the formerresiding at Yerba Buena, and the latter at the Mission,their letters are dated, indiscriminately, “SanFrancisco,” “San Francisco de Asis,” “pueblo of SanFrancisco,” etc. At that time, at least, no distinctionwas made in the use of these names. On the 12thof November an order was issued by the governor,and directed to the “first alcalde of San Francisco,”to hold an election of alcaldes on the first Sundayin December, for the coming year. On the fifth ofDecember Hinckley issued a notice, dated “SanFrancisco de Asis,” for an election to be held in“Dolores,” on Sunday, the eighth, for first and secondalcaldes, no election having been held on the previousSunday. At the secondary election, held December 15,Juan Padilla was chosen first alcalde, and Jose de laSanchez second alcalde. In the returns it is describedas an election “in the pueblo of San Francisco deAsis;” and these returns are sent to Hinckley, whoresided at Yerba Buena, and is addressed as “firstalcalde of San Francisco de Asis.” Hinckley writes anofficial letter, dated “pueblo of San Francisco de Asis,”and sends it to De Haro, at the Mission, addressed to

the “alcalde of second nomination of San Francisco deAsis.”

1845. In the official correspondence of this year,Padilla and Sanchez are addressed as “first and secondalcaldes;” sometimes “of San Francisco,” sometimes“of San Francisco de Asis,” and sometimes “of thepueblo of San Francisco,” etc., etc. On the twelfth ofOctober, of this year, Sanchez issued a proclamation,dated at “Yerba Buena,” in which he styles himself“constitutional alcalde of the jurisdiction of SanFrancisco.”

1846. Sanchez continued to act as alcalde during theearly part of this year; and, after him, Jose Jesus Noeseems to have officiated until July. Noe is called, in theofficial documents, “alcalde of San Francisco,” “juez ofSan Francisco,” “alcalde of first nomination,” “juez depaz,” etc., etc. The officers appointed and elected afterthe military possession by the United States, in July,at first assumed the title of “magistrate,” but very soonafterwards adopted the Spanish word “alcalde,” whichwas continued until 1850.

The foregoing is but a brief synopsis of a verysmall number of the official papers and records stillexisting. They are sufficient, however, to show thecorrectness of the reasoning of the court on this point,and to disprove the absurd theories which have beenraised by interested parties, about the different namesapplied, in old documents, to the pueblo generally, andto particular localities. The attempt of Richardson, andother Limantour witnesses, to ignore the pueblo of SanFrancisco, which was organized at the end of 1834,and to erect a new “pueblo of Yerba Buena,” witha little plat of land between California and Dupontstreets, and the beach, is so thoroughly exploded bythe official records as to deserve not the slightestconsideration. Note 5 to opinion in Hart v. Burnett, bya member of the California bar.

(This member of the bar was the late GeneralHalleek, of the U. S. army, who, while secretary ofstate, under the government of General Riley, andafterward, while practicing his profession of the law inSan Francisco, had given great attention to the subjectof land titles in California, and particularly to theclaims of pueblos existing upon the acquisition of thiscountry to lands embracing the sites of such pueblos,or within their immediate vicinity.)

1 [Reported by L. S. B. Sawyer, Esq., and herereprinted by permission.]

2 See extracts from opinion of the supreme courtof California in note A, annexed to the report of thiscase.

3 In Grisar v. McDowell, 6 Wall. [73 U. S.] 372,the supreme court of the United States said: “It mustbe conceded that there was a pueblo of some kind atthe site of the city of San Francisco, upon the conquestof the country by the United States, on the seventh ofJuly, 1846. We say a pueblo of some kind, for the termwhich answers generally to the English word town,may designate a collection of individuals residing at aparticular place, a settlement or a village, or may heapplied to a regular organized municipality.” See noteB, annexed to the report

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