1. Where a paper in the form of a special verdict -- except that
after stating the facts, it did not refer the decision on them to
the court in the conditional and alternative way usual in such
verdicts, but found "a general verdict for the plaintiff subject to
the opinion of the court upon the foregoing recited facts" -- was
"
agreed to as a special verdict" by counsel in the cause,
filed of record and passed on as an agreed case by the court below,
this Court -- remarking that as a special verdict the paper was
defective because not ending with the usual conclusion -- in view
of the facts just mentioned considered it as a special verdict or
agreed case, and on error to a judgment given on it below adjudged
the case presented by it.
2. Where a statute gave to a city named certain lands of the
state, excepting such as had been sold or granted by a certain body
or certain officers in accordance with terms specified, or had been
sold or granted by a certain officer and confirmed by a certain
body, but declared also that the deed by which any of the excepted
lands were conveyed by such body or officer should be "
prima
facie evidence of
title and possession, to enable the
plaintiff to recover possession of the land so granted,"
held that the deed made under the statute being in
evidence, a compliance with the terms upon which sales were to be
made (such as sufficient notice) was, under its terms, primarily to
be presumed, and that it was cast upon anyone alleging
noncompliance to prove it.
3. Where a statute of California, passed in 1851, granted
certain lands, excepting from the grant such as had been granted by
a particular officer,
Page 73 U. S. 424
and "registered or recorded on or before April 3, 1850, in some
book of record now in the office &c., of the recorder of the
county,"
held that the term "book" was satisfied, within
the meaning of the act, by copies of the deeds on sheets not bound
or fastened together in any manner, but folded, the name of the
purchaser and number and designation of the class of the lot sold
being endorsed thereon, each distinct class being kept in a
separate bundle, and the sheets not being bound up in the form of
books, until 1856, when they were so bound, each class forming a
separate volume.
Mumford -- plaintiff both below and in error here -- brought
ejectment against Wardwell for a "one
hundred-vara lot,"
No. 186 on the official map of San Francisco. Plea, possession as
owner under a good title. The record showed that the case was set
down on that issue for trial August 26, 1863, when the jury found a
verdict in these words:
"
J. E. Mumford v. C. Otis Wardwell, United States
Circuit Court"
"
Northern District of California"
"We, the jury, find a verdict for the plaintiff, subject to the
opinion of the court."
"GEORGE AMERAGE, Foreman"
"SAN FRANCISCO, August 26, 1863."
The finding set forth no case, nor had any been previously
stated. This verdict was entered of record, but no notice
apparently taken afterwards of it. Subsequently, on the 29th
August,
by consent of counsel, it was ordered that the
further hearing of the cause should be set down for September 5.
The record went on:
"And afterwards, to-wit, on the 5th day of September A.D. 1863,
the following special verdict, by stipulation of counsel, was duly
entered of record in said cause, to-wit:"
"
SPECIAL VERDICT"
"In the Circuit Court of the United States for the Northern
District of California. "
Page 73 U. S. 425
"
JAMES E. MUMFORD, Plaintiff v. CHAS. O. WARDWELL,
Defendant"
"
AT COMMON LAW"
"And now, on this 26th day of August, A.D. 1863, come the
parties aforesaid by their respective attorneys, and thereupon come
a jury, to-wit: [the names of the jurors were here given], twelve
good and lawful men, who, being duly elected, tried, and sworn, the
issues herein joined between said parties well and truly to try,
and a true verdict to render according to the evidence, after
hearing the evidence of said parties respectively, the jurors
aforesaid upon their oaths aforesaid to say . . ."
Following this was set forth the titles of the respective
parties to the lot in controversy. The document ended thus, the
signatures of the respective counsel being appended at the end:
"And the jurors aforesaid, upon their oaths aforesaid, do
further say that they find
a general verdict for the plaintiff,
subject to the opinion of the court upon the foregoing recited
facts."
"The above is
agreed to as a special verdict in this
cause."
It will be observed that in what was here agreed to "as a
special verdict" there was no such conclusion as is technically
usual in special verdict actually found by a jury -- that is to say
the finding did not, after presenting the case, refer the decision
of it to the court, with the conditional and alternative conclusion
that if the court should be of the opinion, in view of the facts,
that the plaintiff was entitled to recover, then they found for the
plaintiff, but if otherwise, they found for the defendant.
But this matter was not the subject of remark either by counsel
here or apparently by them in the court below, and the paper agreed
to was treated everywhere as a case agreed on and stated for the
opinion of the court.
The title of the respective parties as set forth in the case as
settled was as follows, that of the defendant, for more clearness,
being here stated first:
1.
Defendant's title. The lot was what was called a
water lot
Page 73 U. S. 426
-- that is to say, formed part of certain flats, situated below
the high water mark of San Francisco Bay. The conquest of Mexico in
1846 having put the whole region about San Francisco into the
control of the military authorities of the United States, General
Kearney, then acting as Military Governor of California, by deed
reciting that he was acting in virtue of authority vested in him by
the President of the United States, conveyed these flats (with some
unimportant reservations) to the Town of San Francisco, a proviso
being attached to the grant that they should be divided into lots,
and after three months' notice sold at auction to the highest
bidder for the benefit of the town. On the
1st day of December,
1849, the ayuntamiento or town council of San Francisco
ordained:
"That two hundred
fifty-vara town lots be sold at
public auction on
Friday, the 10th instant."
On the same 10th of December, 1849, General J. W. Geary, then
acting as alcalde of San Francisco (under which title the municipal
authority of that city was exercised by officers, either appointed
by the military commandant or elected by the people) -- by deed
reciting that the ayuntamiento or town council of San Francisco, by
resolution passed on the
1st day of December, 1849, had
ordered that certain town lots should be exposed to public sale and
sold to the highest bidder, and that after
due public
notice &c., one of the said lots, No. 186, so ordered to
be sold, was sold to D. O'Brien &c. -- granted and conveyed the
said lot, No. 186, to O'Brien aforesaid.
This deed, like every other deed made by Alcalde Geary during
his term of office, consisted of a printed blank on one sheet,
filled up at the time it was issued, and like them was not
registered or recorded except in the following manner, that is to
say copies of the deeds consisting of similar blanks, filled up in
like manner by the clerk of Alcalde Geary, were retained in the
office of the alcalde. These copies were
folded up, the
name of the purchaser and number
Page 73 U. S. 427
of the lot and designation of the class to which it belonged --
that is to say, whether one hundred-vara, fifty-vara, or water lot
-- being endorsed thereon, and those of each distinct class were
kept in said alcalde's office in a separate
bundle, but
these several copies were not
bound or fastened together in any
manner. In that state they passed into the office of the
county recorder, on its organization in 1850, where they continued
to remain until 1856,
when they were bound up in the form of
books, each class forming a separate volume. The grant to
O'Brien was filled up in the manner above stated, and a copy of it
also, made as above stated, was kept in like manner in the bundle
composed of copies of grants of one-hundred-vara lots, and so
continued until the time it with the other copies was bound up as
above said, in 1856.
Whether General Kearney had authority to make a grant such as he
did make to the Town of San Francisco, or whether the ayuntamiento
or town council of San Francisco ever directed a sale of the lot in
question -- which it will be remembered was a hundred-vara lot, not
a fifty-vara one -- the case agreed on as a special verdict did not
state.
Sometime after the sale, that is to say, on the 26th of March,
1851, the Legislature of California granted these flats, including
this lot, to the City of San Francisco for ninety-nine years. But
the statute contained (§ 2) two exceptions. It excepted from
its operation those portions of the flats which had been
either,
"
First, sold by authority of the ayuntamiento, or town
or city council, or by any alcalde of the said town or city, at
public auction,
in accordance with the terms of the grant known
as Kearney's Grant to the City of San Francisco,"
or
"
Second, sold or granted by any alcalde of the said
City of San Francisco, and
confirmed by the ayuntamiento
or town or city council thereof, and also
registered or
recorded on or before the 3d day of April, A.D. 1850, in
some
book of record, now [that is, on the 26th day of
March, A.D. 1851] in the office, or custody, or control of the
Recorder of the County of San Francisco. "
Page 73 U. S. 428
It contained also (§ 3) this enactment as to the effect,
viewed as evidence, of any deed, by which any of the lands excepted
were conveyed or granted by any ayuntamiento, common council, or
alcalde, declaring that it
"Shall be
prima facie evidence of
title and
possession to enable the plaintiff to recover possession of the
land so granted."
Such was the title of Wardwell, defendant below and here.
2.
The plaintiff's was a sheriff's deed for the lot, on
execution upon a judgment against the City of San Francisco, all
confessedly regular, but all subsequent to the statute above
quoted.
On this case, the court below entered judgment for the defendant
Wardwell.
Page 73 U. S. 431
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Plaintiff brought ejectment against the defendant to recover
possession of a certain tract of land situated in the City of San
Francisco, describing it by metes and bounds, and as the one
hundred-vara lot numbered one hundred and eighty-six, as laid down
and represented on the official map of the city. Defendant pleaded
that he was in the possession of the lot as owner under a good
title, which the plaintiff in his replication denied. Parties went
to trial upon that issue, and the jury empanelled to try the issue
returned the following verdict, as appears by the record: "We, the
jury, find a verdict for the plaintiff, subject to the opinion of
the court."
I. 1. Such a verdict is certainly irregular in form, and it does
not appear that it was ever made the subject of any
Page 73 U. S. 432
further action. Instead of affirming or amending it, or setting
it aside, the parties and the court seem to have treated it as a
nullity. No notice whatever was taken of it except that the cause
was set for hearing at a subsequent day, but when the time for the
hearing came, the parties, by stipulation, entered of record the
paper called the special verdict.
Statement of the introductory allegation of the paper is that a
jury came and that they were duly empanelled and sworn and that,
having heard the parties, they found the facts as therein recited,
but it is not signed by the foreman, and the statement in the
conclusion is that the jury return a general verdict for the
plaintiff, subject to the opinion of the court upon the recited
facts.
Irrespective of the agreement of the parties, it would be
difficult to regard the document as the proper foundation of a
judgment, because the alleged finding of the jury is not in the
alternative, as it should be in a special verdict.
2. Correct practice in such cases is that the jury find the
facts of the case and refer the decision of the cause upon those
facts to the court, with a conditional conclusion that if the court
should be of opinion, upon the whole matter as found, that the
plaintiff is entitled to recover, then they find for the plaintiff,
but if otherwise, then they find for the defendant. By leave of the
court, such a verdict may be prepared by the parties, subject to
the correction of the court, and it may include agreed facts in
addition to those found by the jury. When the facts are settled and
the verdict is reduced to form, it is then entered of record, and
the questions of law arising on the facts so found are then before
the court for hearing as in case of a demurrer.
3. Verdicts should be general or special, as the jury, in the
absence of directions from the court, have nothing to do in respect
to a special case. Principal purpose of a special case is that the
court may have time to hear the parties and give the questions of
law arising at the trial a more deliberate consideration.
4. Such being the understanding between the court and the bar,
the entry is made in the minutes that the verdict is
Page 73 U. S. 433
subject to the opinion of the court, but the entry follows the
verdict and is no part of the finding of the jury.
5. Where the verdict is general, the court may enter judgment on
the verdict or may set it aside and grant a new trial, but the
rulings of the court during the trial cannot be revised on writ of
error save by a regular bill of exceptions. Judgment also may be
rendered on the verdict in a special case, or a new trial may be
granted because the verdict is general, and is for plaintiff or
defendant.
6. Exceptions to the order of the court in granting a new trial
do not lie in any case, and the losing party in case of judgment in
a special case cannot except to the rulings of the court during the
trial unless he seasonably reserved the right to turn the special
case into a bill of exceptions, because the court has no power,
unless otherwise agreed, to render any judgment except upon the
verdict of the jury.
7. Special verdicts having a conditional or alternative finding
are the proper foundation of a judgment for either party, as the
law of the case on the facts found may require, and consequently
the judgment of the subordinate court on such a verdict, whether
for plaintiff or defendant, may be reexamined in the appellate
tribunal without any bill of exceptions. [
Footnote 1]
Viewed strictly as a special verdict, it is evident that the
paper under consideration is defective because it does not contain
the conditional or alternative finding of the jury, and in that
respect it is irregular.
But the parties intended to agree, and did agree, that the facts
as found were correct, and entered the paper of record at the time
under the leave of the court as a correct statement of the facts in
the case. They do not appear to have taken any distinction between
a special verdict and a special case or an agreed statement of
facts, and the record shows that the judgment of the court was
rendered wholly irrespective of any such distinction. Both parties
appear to have
Page 73 U. S. 434
treated the paper as an agreed statement in the court below, and
it has been treated in the same way in this Court. Undoubtedly the
general verdict was superseded when the paper in question was
entered of record, as that was done under the sanction of the court
and by the consent of both parties, and it is certain that the
parties intended that the controversy should be finally decided
upon the facts as therein agreed.
8. Doubt cannot be entertained upon that subject, and yet such a
result cannot follow if the paper is held to be a special verdict
unless the opinion of the court is in favor of the plaintiff, as
there is no proper conclusion in it to warrant a judgment for the
defendant. Regarded as an agreed statement, the paper is in due
form, and inasmuch as no objections are made to the proceedings,
the Court here adopts that view of the subject as the correct one
in the case.
II. Reference will first be made to the title of the plaintiff
as shown in the agreed statement. He claims title under a sheriff's
deed of the lot, bearing date October 17, 1859, which is in due
form, and was duly executed and recorded. Prior to that time
judgment had been recovered against the City of San Francisco by
one of her creditors in the sum of one thousand and seventy dollars
and twenty-five cents, and the city failed to pay the amount.
Execution was duly issued on the judgment and delivered to the
sheriff of the county for legal service, and the sheriff, in
obedience to the command of the process, sold the lot in question
to the purchaser as the highest bidder.
Title of the plaintiff is deraigned through various mesne
conveyances from the grantee of that deed, as fully explained in
the agreed statement. Parties agree that the lot is below what was,
prior to any improvements, the natural high water mark of the bay,
and that prior to March 26, 1851, it was at all ordinary high tides
wholly covered with the tidewaters.
III. 1. Source of the title of the defendant is a deed from the
alcalde of the town dated December 10, 1849, to Daniel O'Brien, as
set forth in the transcript, and as confirmed by the second section
of the Water Lot Act. He holds that title,
Page 73 U. S. 435
whatever it may be, as deraigned through a regular chain of
mesne conveyances from the original grantee. Possession of the
premises was in the defendant at the commencement of the suit, and
it appears that he had been in the actual possession of the same
for the period of three years.
2. Mexican rule came to an end in that department on the 7th of
July, 1846, when the government of the same passed into the control
of our military authorities. [
Footnote 2] Municipal authority also was exercised for a
time by subordinate officers appointed by our military commanders.
Such commander was called military governor, and for a time he
claimed to exercise the same civil power a that previously vested
in the Mexican governor of the department. By virtue of that
supposed authority, General S. N. Kearney, March 10, 1847, as
military governor of the territory, granted to the Town of San
Francisco all the right, title and interest of the United States to
the beach and water lots on the east front of the town, included
between certain described points, excepting such lots as might be
selected for government use.
Requirement of the grant was that the land granted should be
divided into lots and that the lots should be sold after three
months' notice at public auction for the benefit of the town.
Pursuant to that requirement, numerous lots were surveyed and laid
out, and public sales of the same took place at various times as
recited in the agreed statement. Lot one hundred and eighty-six was
subsequently sold at public auction by the alcalde of the town, and
the same was conveyed by deed or grant in due form to the original
grantee, under whom the defendant deraigned his title.
3. But the power to grant lands or confirm titles was never
vested in our military governors, and it follows as a necessary
consequence that the grant as originally made was void and of no
effect. Nothing passed to the town by the grant, and of course the
doings of the alcalde in selling the lot in question was a mere
nullity.
4. California was admitted into the Union September 9,
Page 73 U. S. 436
1850, and the act of Congress admitting her declares that she is
so admitted on equal footing, in all respects, with the original
states. [
Footnote 3] Settled
rule of law in this Court is, that the shores of navigable waters
and the soils under the same in the original states were not
granted by the Constitution to the United States, but were reserved
to the several states, and that the new states since admitted have
the same rights, sovereignty and jurisdiction in that behalf as the
original states possess within their respective borders. [
Footnote 4]
When the Revolution took place, the people of each state became
themselves sovereign, and in that character hold the absolute right
to all their navigable waters and the soils under them, subject
only to the rights since surrendered by the Constitution. [
Footnote 5]
5. Necessary conclusion is, that the ownership of the lot in
question, when the state was admitted into the Union, became vested
in the state as the absolute owner, subject only to the paramount
right of navigation. Corporate powers were exercised by the City of
San Francisco prior to the time when the state was admitted into
the Union, but she was reincorporated April 15, 1851, and the
agreed statement shows that the lot described in the complaint is
within the corporate limits of the city.
6. Certain lots of land situated in the city and within certain
described boundaries were designated in the first section of the
Act of the 26th of March, 1851, as the beach and water-lots of the
city. [
Footnote 6] Second
section of the act granted the use and occupation of all the land
so described to the city for the term of ninety-nine years, with
certain exceptions as therein provided. First, exception was made
of all lands so described which had been previously sold by
authority of the ayuntamiento, or town or city council, or by any
alcalde of the town or city, at public auction, in accordance with
the Kearney grant. Secondly, same exception
Page 73 U. S. 437
was also made of all lands so described which had been granted
or sold by any alcalde of the city, and confirmed by the
ayuntamiento, or town or city council, and registered or recorded
on or before April 3, 1850, in some book of record now in the
office or custody or control of the recorder of the county, and the
provision is that all such excepted lands shall be, and the same
are hereby, granted and confirmed to the purchasers or grantees or
the pr sons holding under them, for the term of ninety-nine years.
The lot in question is included within the boundaries described in
the first section of that act, and it appears that it is not any
part of the lands reserved for public use.
7. Based on these facts, the proposition of the defendant is,
that his title is a good one, and that the judgment of the circuit
court should be affirmed. First, because it appears that the lot
being within the first exception, never passed to the city, as it
had been previously sold to the original grantee, under whom he
claims, at public auction, by an alcalde of the town, in accordance
with the terms of the Kearney grant. Secondly, because the lot
being within the first section of the Water Lot Act, and having
been sold, confirmed, and registered or recorded as required in the
third clause of the second section of that act, the title to the
same under that sale was ratified to the purchaser by the
succeeding clause of that section. Express admission of the parties
is that the lot in question is included within the boundaries
described in the first section of the Water Lot Act, and the third
section of the same act provides that the original deed by which
any of those lands were conveyed by any ayuntamiento, alcalde, or
common council, shall be
prima facie evidence of the title
and possession. [
Footnote
7]
8. Conveyance of the lot in question was previously made by an
alcalde, and the deed of conveyance contains the recital that due
public notice of the intended sale was given before it was exposed
to sale, and sold to the original grantee. Order of sale was passed
by the ayuntamiento only ten days
Page 73 U. S. 438
before the sale, but there is nothing in the agreed statement to
prove that the full notice as specified in the grant to the town
had not been previously given as required. Clear inference from the
recitals of the deed is that it had been previously given, and the
burden of disproving the presumption is, by the express words of
the third section of the act, cast upon the party alleging the
contrary.
IV. 1. Suppose, however, it were otherwise, still the judgment
of the circuit court is correct, because the agreed statement shows
that the lot in question was sold by an alcalde, and confirmed by
the ayuntamiento, and registered or recorded within the time
required, in a book of record in the office, custody or control of
the recorder of the county. Confirmation of the sale by the
ayuntamiento is clearly shown, but it is insisted by the plaintiff
that the deed was never registered or recorded within the meaning
of that requirement. Like the military governor, Alcalde Geary
claimed to exercise powers vested in the alcaldes under the Mexican
rule, and following the usages of some of his predecessors in
office, he made his grants in duplicates, and delivered the
original to the grantee, and filed the duplicate copy in his
office.
2. Duplicate copies retained in the office were labeled with the
name of the purchaser, number of the lot, and the class to which
the grant belonged. Such duplicates, although regularly classified
and endorsed, were not bound in the form of a book, but each class
was kept in a separate bundle, and in that state they were passed
into the office of the recorder of the county at its organization.
They remained there till 1856, when they were bound into the form
of books, each class forming a separate volume.
3. Those books are the only registry ever made of the original
titles to these beach and water lots. Unless it be held that the
grant in this case was registered or recorded within the meaning of
that act, then all the titles are defective, as none of them was
registered in any other way. [
Footnote 8]
Page 73 U. S. 439
Evidently the legislature assumed that some of the lots were
duly registered as required, because the act proceeds to grant and
confirm all such land to purchasers or grantees and persons holding
under them, for the same term as the other lands are granted to the
city.
4. Jurisdiction under the Mexican rule had come to an end more
than three years when the Water Lot Act was passed, and it is a
reasonable presumption that the legislature knew what the course of
proceeding had been in making those grants, and in what condition
the evidences of the title were, as they existed in the recorder's
office. All the act required was that it should appear, if the land
had been sold by an alcalde, that it had been confirmed by the
ayuntamiento and that it had been registered or recorded in some
book of record now in the office, custody or control of the
recorder.
5. Most or all of the grants were made before the office of
recorder of the county was created, and of course it cannot be held
that the act required that the grants should have been recorded by
that officer at the time they were issued. No such registry was in
existence at the time, and the better opinion is that the grants of
lands so sold and confirmed are duly registered or recorded within
the meaning of the requirement in all cases where the duplicate
copy of the grant was, at the date of the Water Lot Act, regularly
deposited in the office of the county recorder. Although not bound
at that date, they had been classified and have since been bound
into volumes. Looking at the case in any point of view consistent
with the agreed facts, our conclusion is that the plaintiff shows
no title and that the decision of the circuit court was
correct.
Judgment affirmed with costs.
[
Footnote 1]
Suydam v.
Williamson, 20 How. 432; 3 Blackstone's
Commentaries 378;
Seward v. Jackson, 8 Cowen 406;
State v. Wallace, 3 Iredell 195.
[
Footnote 2]
United States v.
Castillero, 2 Black 149;
Romero
v. United States, 1 Wall. 743.
[
Footnote 3]
9 Stat at Large 452.
[
Footnote 4]
Pollard's Lessee v.
Hagan, 3 How. 212.
[
Footnote 5]
Martin v.
Waddell, 16 Pet. 410.
[
Footnote 6]
Wood's Digest 519.
[
Footnote 7]
Wood's Digest 520.
[
Footnote 8]
United States v.
Osio, 23 How. 279.
