Field, C. J. delivered the opinion of the Court
Cope, J. and Norton, J. concurring.
This is an action of ejectment to recover the possession of a tract of land known by the name of the “ Rancho Laguna de la Merced,” situated partly in the county of San Francisco and partly in the county of San Mateo. The plaintiff deraigns his title from the former Mexican Government through a grant issued by the Governor of California to one Galindo in September, 1835. Some of the defendants rested their defense upon the inability of the plaintiff to establish a right to the possession, simply denying in their answers the allegations of the complaint; but the majority of them also set up title in themselves to specific parcels of the premises as preemptioners under the laws of the United States, and each of them demanded a separate verdict. The Court instructed the jury to find generally in favor of two of the defendants, and to render a separate verdict against each of the other defendants, with a qualification, however, which in effect rendered the instruction one to [576]*576find generally against each of the latter defendants. The verdict rendered was substantially in conformity with the instruction. To its form objection was taken at the time, but it does not appear from the record in what particular it was urged that its form was defective. The objection as stated was too general to merit consideration.
The grant to Galindo cedes the tract known by the name of “ Laguna de la Merced,” and contains the usual conditions annexed to grants in colonization. It authorizes the inclosure of the land, with a reservation of the crossings, roads, and servitudes, and confers upon the grantee the free and exclusive enjoyment of the same, with a right to subject it to such use and cultivation as may suit his convenience ; and requires the erection of a house thereon and its inhabitation within one year. Immediately after its receipt the grantee entered upon the premises, and within the period designated erected a house thereon and occupied it for nearly two years, when he sold and conveyed his interest to Francisco do Haro. The latter immediately went into possession, and resided with his family upon the premises until his death in 1848 or 1849. In 1852 the claim for the land embraced by the grant was presented by his heirs to the Board of Land Commissioners for confirmation, and by the decree of that body, and afterwards on appeal by the United States District Court, was confirmed. The decree of the latter tribunal became final by the refusal of the Government to prosecute an appeal therefrom, and by the stipulation of the District-Attorney. The validity of the grant is, therefore, a settled question for all time. (Mott v. Smith, 16 Cal. 551.)
As we have already observed, the grant is for a specific tract of land. In this respect it is distinguished from a large class of grants of mere quantity within vague and undefined boundaries, like the grant of Alvarado, under which Fremont claimed. In these latter cases it was undoubtedly the intention of the Government simply to indicate the general locality from which the quantity granted might be selected, and not to pass the entire property within the exterior limits designated. Here the case is different. Here a specific tract, known by a particular name, is ceded, and reference is made to a map accompanying the petition of the grantee for its [577]*577boundaries. The petition represents the tract to be a league in length, and a half of a league in width, more or less. A map similar to the one referred to was required by the Mexican Regulations of November, 1828, which were adopted to carry into effect the Colonization Law of August, 1824, in all cases where a grant of lands was solicited. And the grant usually followed the map or the petition in the general description of the land, and whore a certain quantity was stated in the petition to be embraced within a particular tract named or within certain specified boundaries, it was customary, in order to prevent mistakes or imposition, to insert a clause reserving for the benefit of the nation any surplus which might be found upon a survey and measurement by the officers of the Government. (Ferris v. Coover, 10 Cal. 621.) Until by such a proceeding it was officially determined that within such particular tract or designated boundaries there was a surplus, and it was set apart, the right to the possession of the entire tract rested with the grantee. Until then, as we said in Cornwall v. Culver, (16 Cal. 429) “ no individual can complain, much less can he be permitted to determine, in advance, that any particular locality will fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is is the donee of the Government, would be stripped of its bounty, for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors,”
To this doctrine of the right of the grantee until the official measurement, the common objection is urged that under it double or treble the quantity intended to be ceded by the Government may be possessed by him. Under a grant, it is said, of a tract supposed to embrace but one league, the grantee may, in accordance with this doctrine, recover two or more leagues, and parties equally entitled to the consideration of the Government be thus excluded from settlement upon land which will ultimately be determined to be part of the public domain. The objection thus urged is more specious than sound. If there be a surplus within the designated boundaries of the tract over the specific quantity alleged [578]*578by the grantee in his petition, or intended to be ceded by the grant, the Government can at any time, by directing its measurement and segregation, restrict the grantee’s possession. The grantee cannot himself make the measurement and segregation so as to bind the Government. He cannot know what particular part of the general tract the Government may assign to him, or what part it may reserve to its own use, or offer for sale, or settlement. He is, therefore, directly interested until the official segregation to protect the entire tract from waste and injury, and to improve it; and until then, third persons cannot question his right to the possession of the whole. They have no authority to fix the limits of his possession, under any pretense of a desire or intention to make a settlement upon the surplus which the tract may contain over the specific quantity designated. Lands thus situated are not open to settlement by the legislation of Congress, but on the contrary are expressly exempted therefrom. The determination, therefore, of the limits of the grantee’s possession is a matter resting solely between himself and the Government. Were the rule otherwise, the grantee would find his possession limited, first in one direction and then in another, each intruder coveting a particular tract, asserting that it fell within the surplus reserved to the uses of the nation, until at last the grantee would be excluded from the entire tract. If the doctrine we have stated be not correct, when applied to a grant embracing within its boundaries a large surplus, it is not correct when there is any surplus, even if it be only of a few acres instead of leagues. The surplus acres would be asserted to lie in every portion of the general tract, according to the views or designs of the particular trespasser.
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Field, C. J. delivered the opinion of the Court
Cope, J. and Norton, J. concurring.
This is an action of ejectment to recover the possession of a tract of land known by the name of the “ Rancho Laguna de la Merced,” situated partly in the county of San Francisco and partly in the county of San Mateo. The plaintiff deraigns his title from the former Mexican Government through a grant issued by the Governor of California to one Galindo in September, 1835. Some of the defendants rested their defense upon the inability of the plaintiff to establish a right to the possession, simply denying in their answers the allegations of the complaint; but the majority of them also set up title in themselves to specific parcels of the premises as preemptioners under the laws of the United States, and each of them demanded a separate verdict. The Court instructed the jury to find generally in favor of two of the defendants, and to render a separate verdict against each of the other defendants, with a qualification, however, which in effect rendered the instruction one to [576]*576find generally against each of the latter defendants. The verdict rendered was substantially in conformity with the instruction. To its form objection was taken at the time, but it does not appear from the record in what particular it was urged that its form was defective. The objection as stated was too general to merit consideration.
The grant to Galindo cedes the tract known by the name of “ Laguna de la Merced,” and contains the usual conditions annexed to grants in colonization. It authorizes the inclosure of the land, with a reservation of the crossings, roads, and servitudes, and confers upon the grantee the free and exclusive enjoyment of the same, with a right to subject it to such use and cultivation as may suit his convenience ; and requires the erection of a house thereon and its inhabitation within one year. Immediately after its receipt the grantee entered upon the premises, and within the period designated erected a house thereon and occupied it for nearly two years, when he sold and conveyed his interest to Francisco do Haro. The latter immediately went into possession, and resided with his family upon the premises until his death in 1848 or 1849. In 1852 the claim for the land embraced by the grant was presented by his heirs to the Board of Land Commissioners for confirmation, and by the decree of that body, and afterwards on appeal by the United States District Court, was confirmed. The decree of the latter tribunal became final by the refusal of the Government to prosecute an appeal therefrom, and by the stipulation of the District-Attorney. The validity of the grant is, therefore, a settled question for all time. (Mott v. Smith, 16 Cal. 551.)
As we have already observed, the grant is for a specific tract of land. In this respect it is distinguished from a large class of grants of mere quantity within vague and undefined boundaries, like the grant of Alvarado, under which Fremont claimed. In these latter cases it was undoubtedly the intention of the Government simply to indicate the general locality from which the quantity granted might be selected, and not to pass the entire property within the exterior limits designated. Here the case is different. Here a specific tract, known by a particular name, is ceded, and reference is made to a map accompanying the petition of the grantee for its [577]*577boundaries. The petition represents the tract to be a league in length, and a half of a league in width, more or less. A map similar to the one referred to was required by the Mexican Regulations of November, 1828, which were adopted to carry into effect the Colonization Law of August, 1824, in all cases where a grant of lands was solicited. And the grant usually followed the map or the petition in the general description of the land, and whore a certain quantity was stated in the petition to be embraced within a particular tract named or within certain specified boundaries, it was customary, in order to prevent mistakes or imposition, to insert a clause reserving for the benefit of the nation any surplus which might be found upon a survey and measurement by the officers of the Government. (Ferris v. Coover, 10 Cal. 621.) Until by such a proceeding it was officially determined that within such particular tract or designated boundaries there was a surplus, and it was set apart, the right to the possession of the entire tract rested with the grantee. Until then, as we said in Cornwall v. Culver, (16 Cal. 429) “ no individual can complain, much less can he be permitted to determine, in advance, that any particular locality will fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. If one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is is the donee of the Government, would be stripped of its bounty, for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors,”
To this doctrine of the right of the grantee until the official measurement, the common objection is urged that under it double or treble the quantity intended to be ceded by the Government may be possessed by him. Under a grant, it is said, of a tract supposed to embrace but one league, the grantee may, in accordance with this doctrine, recover two or more leagues, and parties equally entitled to the consideration of the Government be thus excluded from settlement upon land which will ultimately be determined to be part of the public domain. The objection thus urged is more specious than sound. If there be a surplus within the designated boundaries of the tract over the specific quantity alleged [578]*578by the grantee in his petition, or intended to be ceded by the grant, the Government can at any time, by directing its measurement and segregation, restrict the grantee’s possession. The grantee cannot himself make the measurement and segregation so as to bind the Government. He cannot know what particular part of the general tract the Government may assign to him, or what part it may reserve to its own use, or offer for sale, or settlement. He is, therefore, directly interested until the official segregation to protect the entire tract from waste and injury, and to improve it; and until then, third persons cannot question his right to the possession of the whole. They have no authority to fix the limits of his possession, under any pretense of a desire or intention to make a settlement upon the surplus which the tract may contain over the specific quantity designated. Lands thus situated are not open to settlement by the legislation of Congress, but on the contrary are expressly exempted therefrom. The determination, therefore, of the limits of the grantee’s possession is a matter resting solely between himself and the Government. Were the rule otherwise, the grantee would find his possession limited, first in one direction and then in another, each intruder coveting a particular tract, asserting that it fell within the surplus reserved to the uses of the nation, until at last the grantee would be excluded from the entire tract. If the doctrine we have stated be not correct, when applied to a grant embracing within its boundaries a large surplus, it is not correct when there is any surplus, even if it be only of a few acres instead of leagues. The surplus acres would be asserted to lie in every portion of the general tract, according to the views or designs of the particular trespasser.
There is indeed no middle ground between the doctrine we have stated and the doctrine which denies to the grantee all right of possession to any portion of the granted premises until the official segregation ; and it will not be pretended that under the Mexican law, or, to speak more accurately, under the construction given to that law by the Mexican authorities in California, possession was withheld until such segregation was had. Under that law the segregation was effected by the ceremony known as the delivery of juridical possession. But this proceeding could not be legally taken [579]*579at all until the concession had been approved by the Departmental Assembly, and such approval was often delayed for years. In numerous cases it had not been obtained when by the conquest the jurisdiction of the Assembly was displaced. Yet the grantee genenerally took possession at once upon the issuance of the grant, and his possession was respected, both by the authorities of the Government and the adjoining proprietors. It is true, the Mexican Regulations of 1828 contemplated that the approval of the Departmental Assembly should be obtained to the concession of the Governor before the definitive grant issued. So, where the grantee regularly received his title papers the concession was final. The law then intended an immediate delivery of the possession by the proper magistrate of the vicinage. This proceeding had a double operation; first, to make a formal tradition or livery of seizin of the property, which was essential under the civil as at the common law; and second, to measure off and segregate the specific quantity granted, and establish its boundaries. But in time the practice grew up of issuing the final title papers without waiting for the approval of the Departmental Assembly, and as juridical possession could not regularly be made previous to such approval, a provisional possession of the entire tract designated "was permitted. Conditions were annexed to grants thus issued, substantially similar to those annexed to grants issued subsequent to the approval. They conferred upon the grantee the same right to the exclusive use and enjoyment of the land, and oftentimes exacted the construction of a house thereon, and its inhabitation, within a year afterwards. Independent of express conditions on this point, the grants were held subject to the same conditions of cultivation and occupancy, under the Regulations of 1828, as grants already confirmed, and a compliance with these conditions was required to avoid a denouncement and a possible forfeiture of the land. And such compliance, as we observed in Cornwall v. Culver (16 Cal. 426) is considered by the tribunals of the United States as a most material circumstance in determining the right of the grantees to a recognition and confirmation of their claims.
The counsel of the defendants, though controverting this view of the right of the grantee until the official measurement, rested their [580]*580defense chiefly upon an alleged selection and location of the specific quantity designated in the grant by parties claiming under him, and their disclaimers of title to the remainder. The proof they offered on this point was excluded, upon the objection of the plaintiff, and the ruling in this respect constitutes the principal error upon which they rely for a reversal of the judgment.
There is no doubt that a selection and location of the specific quantity may be made by the grantee (and of course by parties claiming through him) under such circumstances and accompanied with such disclaimers as to estop him from the assertion of any title or right to the possession of the remainder existing within the exterior boundaries of the general tract, until by the action of the Government it is determined that his claim under the grant shall be satisfied by land elsewhere selected. There is nothing in the nature of a colonization grant prohibiting him from restricting, if so disposed, his general right to the possession of the entire tract. And we accept as substantially correct the position of counsel that “ when the grantee selects his location and quantity, uses it, leases it, sells or mortgages it, and disclaims title to the remainder, it (the selection) is, and ought to be, obligatory on him until the Government overrules his election and assigns him the land elsewhere.” And we agree with counsel in their statement that: “ by this rule, no hardship is imposed on the grantee. He selects the quantity he is entitled to, and is protected in the enjoyment of it pending his proceedings to perfect the title ; and if the Government repudiates Ms selection and assigns him other lands, his title attaches to the new location. In this way exact justice is done to all. The grantee gets all the grant entitles him to, and settlers outside his location are not disturbed, unless the Government, in the exercise of its sovereign right to segregate the lands of the grantee from the public domain, shall include their possessions in the tract finally awarded to the grantee; in which event their rights must of course yield to his.” The question, then, for determination is whether the proof offered tended to establish any binding selection and location under the grant to Galindo. It is not pretended that any such selection and location were made previous to the year 1853. Up to that time, from the issuance of the grant in 1885—a period of nearly [581]*581eighteen years—the grantee, or the De Haros claiming under him, were in the peaceable and exclusive possession and enjoyment of the entire tract. The grantee, soon after the concession, built a house upon it near its southern line, and occupied the house for one or two years. De Haro built another house near the same spot, and a third house near the northern line of the tract. Both parties resided upon the premises with them families, Galindo until his sale, and De Haro until his death in 1848 or 1849. The heirs of De Haro resided upon them after their father’s death. During this long period no one, so far as appears from the record, questioned their right to the possession of the entire tract or disturbed them in its use. It is upon an alleged selection and location by a survey made in September, 1853, and alleged subsequent disclaimers of title to the lands outside of that survey, that the defendants rely. They offered to prove, substantially, that previous to June, 1853, the lands occupied by them had been “ townshiped and sectionized ” like other public lands of the United States; that in September, 1853, the grantors of the plaintiff caused a survey to be made of the specific quantity designated in the grant; that the claimants under the grant assented to such survey when made; that afterwards some of the grantors sold, mortgaged, and leased portions of the lands lying within the survey, and to the defendants and others publicly disclaimed having any title to or interest in the residue of the general tract; that acting under such disclaimers and acts of some of the said grantors they made them locations; and that they were not within the lines of the said survey. The proof thus offered was, in our judgment, properly excluded.
The defendants could not demand any protection solely as preemptioners, for, until the official segregation of the specific quantity designated in the grant, the entire tract was expressly exempted from preemption and settlement by the Act of Congress. Their right to freedom from disturbance in their occupation rested, therefore, upon the alleged assent of the claimants to a restriction of their rights to the tract surveyed, and them alleged disclaimers as to the balance. But nearly all these claimants—who were seven in number—were incapable of giving any binding assent to such restriction, or making any binding disclaimers. Three of them at the [582]*582time were infants, and two of them were under the disability of coverture. Besides, only a portion of the claimants were grantors of the plaintiff, and it was not in the power of some of them to affect by their action or disclaimers the rights of the other grantors or other claimants. No action of a portion of several tenants in. common can impair the rights of their co-tenants.
There is nothing in the language of the Court in Riley v. Hirsch (18 Cal. 198) which conflicts with the views we have here expressed. That case was an action of ejectment for the possession of certain real estate situated within the City and County of Sacramento, covered by the grant issued by Governor Alvarado to John A. Sutter in June, 1841. The grant embraced a quantity exceeding the eleven leagues ceded, though from the reservation of “ the lands inundated by the impulse and currents of the rivers,” it was difficult, if not impossible, without a survey, to state with anything like accuracy the extent of the excess. But it appeared from the evidence that Sutter had been in possession of the land embraced within the county of Sacramento for years, both before and after the cession of the country to the United States, asserting ownership of it under his grant, and subjecting it to all such uses as he desired without disturbance from any one; and we held that the grant itself conferred a right to the possession—giving to it the same effect which was attributed to it by the Mexican authorities in California; and that though the specific quantity granted could only be definitively and permanently located by a survey and measurement by the proper officers of the Government, yet that it was competent for the grantee, to enable him to comply with the conditions annexed, to make a temporary selection and location, which would be binding and effectual as against intruders and trespassers, and all parties, until the action of the Government. We do not desire to qualify what we thus held. Ho party but the Government can question any selection made by the grantee under his grant. As against all other parties it is sufficient for the grantee to show that the land selected lies within the boundaries designated in the grant. But to restrict the possessory right of the grantee to the selection made, the selection must be accompanied with such disclaimers as to the residue of the general tract as to operate as an [583]*583estoppel upon Mm. There is nothing in the present case creating such an estoppel upon the plaintiff or the parties through whom he claims.
We do not attach any importance to the fact that after the final confirmation of the grant a survey was made by the United States Surveyor-General, and returned to the District Court under the Act of 1860, such survey having been excepted to by the Government, and not having been approved by the Court. By that act, when a survey has been made and plotted, it is the duty of the Surveyor-General to publish notice of the fact for four weeks. In the meantime the survey and plot are to be retained in Ms office subject to inspection. If, upon the expiration of the publication, no application has been made for a return of the survey into the District Court for examination and adjudication, or if made, the application has been refused, the surrey becomes final. On the other hand, if the survey be ordered into Court, it does not become final until it has been approved or has been,modified and reformed by the decree of the Court. Until the survey is established in one of these ways, it is without any binding force. Until then it is only a preliminary proceeding, amounting in effect to no more than a mere report of the action of the Surveyor, filed in Ms office for the inspection of all parties interested, or returned by him into Court by its order, for examination and adjudication. Nor does it make any difference that the exceptions to the survey were taken by the Government, and not by the claimants. Until established in one of the ways we have mentioned, the survey is not binding upon either party. When it binds one party it binds both.
The right of one tenant in common to recover in the action of ejectment the possession of the entire tract as against all persons but his co-tenants, has been repeatedly held by this Court. (Touchard v. Crow, 20 Cal. 162 ; Stark v. Barrett, 15 Id. 371.) The action is merely for the possession ; it determines no rights but those of present possession; and that one tenant in common has such rights as against all parties but his co-tenants is not doubted. The doctrine of the Court, therefore, only allows the enforcement by action of an acknowledged right.
Judgment affirmed.