FIELD, Circuit Justice.
This is an action for the possession of a portion of the fifty-vara lots, numbers five and six, in block lying between Folsom and Harrison streets, and between Main and Spear streets, in the city of San Francisco. The demand in the complaint is for the entire lots, but it was admitted on the trial that the title of the plaintiff does not extend to that portion of the lots which lies below the ordinary high-water mark of the Bay of San Francisco, as that mark existed on the acquisition of the country.
The claim of the plaintiffs to the upland portion rests upon the hypothesis that previous to the admission of California into the Union, the premises were reserved for public purposes by the action of officers of the army of the United Stales, and that such reservation was recognized by the subsequent legislation of congress, and by the decree of this court in the Pueblo Case [Case No. 12.316].
The defendants not only controvert the positions of the plaintiffs, but assert title in themselves, or parties they represent, from three sources: (1) By virtue of a grant from a justice of the peace of the city of San Francisco, in January, 1850; (2) by virtue of a deed from the sheriff of the county of San Francisco, bearing date in October. 1S51. executed upon a sale of the premises under a judgment and execution against the city; (8) by virtue of a conveyance by the city through the commissioners of the sinking fund created in 1850, and the commissioners of the funded debt created in 1851. That a Mexican pueblo existed at the site of the present city of San Francisco upon the acquisition of The country by the United States, on the seventh of July, 1S4I!; that it possessed an interest in lands to the extent of four square leagues measured off from the northern portion of the peninsula upon which the city is situated; and that [145]*145the city has succeeded to such interest, are matters no longer open to discussion. They have been settled by judicial decision in a controversy between the city and the United States after the most mature consideration.
it was admitted on the trial that the premises in controversy were within the-four square leagues mentioned. They were not, therefore, the subject of levy and sale under judgment and execution against the city. That source of title to the defendants may therefore be laid aside. So the grant of the justice of the peace may also be passed over without consideration, as no authority for the exercise of any power to grant portions of the municipal lands by officers of that description in the pueblo lias been furnished us in the laws or customs of the country. The alleged title of the defendants by conveyance from the city arises in this wise: in August. 1850, the common council of San Francisco passed an ordinance to create a fund for the erection and promotion of city improvements, and provided, in the execution of this purpose, for the issue of city stock to be called a "sinking fund siock." The ordinance appointed a board of five pel-sons. entitled "the commissioners of the sinking fund." and invested them with the charge ol' all the real estate in the possession of the city, and pledged the property as security for the redemption of the stock and'interest at maturity. By a subsequent ordinance the common council directed a conveyance of this property to be made to the commissioners, .in trust, foi the purposes mentioned; and such conveyance was executed on the twenty-fifth of December, 1850. This conveyance includes the premises in controversy, and all the tract known as the "Government lie-serve" at Itincou Point.
On the fourth of May. 1851, llie legislature of the state passed an act "to authorize the funding of the boating debt of the city of San Francisco, and to provide for the payment of the same." The act created a board called •‘Commissioners of the Funded Debt of the City of San Francisco." and directed the commissioners of the sinking fund, created as mentioned by the ordinance of the city, to convey to them all the property and rights of property belonging to the city; and empowered them to sell or lease the property at sucli time and place as in their discretion the interest of the city might require, and to apply the proceeds to the liquidation of its floating debt.
Under this act the commissioners of -the sinking fund, on the seventeenth of May, 1851. executed the conveyance directed, of all the property embraced in the deed which they had received Soon after the issue of the grant by the justice of the peace, which we have mentioned, the defendants, or the parties whom they represent, went into possession ot the premises, and were in possession when they obtained the conveyance of the sheriff. Under the title thus derived they asserted ownership until the passage of the ordinance of the common council for the settlement of land titles, in June, 1S55, known as the "Van Ness Ordinance,” and its confirmation by the legislature in March, 1858, after which they also claimed under the ordinance. Some conflict thus arose between them and the commissioners of the funded debt. Similar conflicts had also arisen with other parties, claiming under like circumstances against the commissioners. To remove the embarrassment arising from this cause, the legislature, in April, 1802, passed an act authorizing a compromise between parties thus situated and the commissioners; and a conveyance of the title by the latter to such parties Under this act, and in pursuance of its provisions, a compromise was effected, and conveyances were executed in 1862, and 181E1 to the defendants, or the parties represented by them.
No question is raised as to the validity of these conveyances, except that the premises had previously been appropriated for the public purposes of the government. Though it has been held that there was no authority in the common council of the city, under the charter of 1850, to create the board of commissioners of the sinking fund, or to execute a conveyance of the city property to them, yet it has not been doubted that it was competent for the legislature to direct a conveyance of the property by them to the commissioners of the funded debt, or that such conveyance passed the interest of the city. The power of the city to dispose of the property was, after the admission of California into the Union, subject to the control of the legislature of the state. The legislature could restrain or enlarge, at its pleasure, the authority of the agents of the city over the property. and could authorize a transfer of the title through the commissioners of the sinking fuño as well its in any other way. or through, any other body. Payne v. Treadwell. 16 Cal. 233, and authorities there cited.
The real question, therefore, at issue, relates to the efficacy of the acts of the officers of the army of the United States, in creating a reservation of the promises before the title had thus passed from the city, and the effect upon such acts of the legislation of congress and the decree in the Pueblo Case. In considering the claim of the plaintiffs, we shall assume, that until the action of the city authorities in disposing of the property, the United States retained the same right to reserve for public purposes portions of the pueblo lands to which the city had succeeded as they possessed to reserve portions of the public domain; at least, that they retained such right previous to the admission of California into the Union. As we have had frequent occasion to observe, it is difficult to state with precision the exact nature of the title or interest which the pueblo possessed in its lauds. They were not held in [146]
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FIELD, Circuit Justice.
This is an action for the possession of a portion of the fifty-vara lots, numbers five and six, in block lying between Folsom and Harrison streets, and between Main and Spear streets, in the city of San Francisco. The demand in the complaint is for the entire lots, but it was admitted on the trial that the title of the plaintiff does not extend to that portion of the lots which lies below the ordinary high-water mark of the Bay of San Francisco, as that mark existed on the acquisition of the country.
The claim of the plaintiffs to the upland portion rests upon the hypothesis that previous to the admission of California into the Union, the premises were reserved for public purposes by the action of officers of the army of the United Stales, and that such reservation was recognized by the subsequent legislation of congress, and by the decree of this court in the Pueblo Case [Case No. 12.316].
The defendants not only controvert the positions of the plaintiffs, but assert title in themselves, or parties they represent, from three sources: (1) By virtue of a grant from a justice of the peace of the city of San Francisco, in January, 1850; (2) by virtue of a deed from the sheriff of the county of San Francisco, bearing date in October. 1S51. executed upon a sale of the premises under a judgment and execution against the city; (8) by virtue of a conveyance by the city through the commissioners of the sinking fund created in 1850, and the commissioners of the funded debt created in 1851. That a Mexican pueblo existed at the site of the present city of San Francisco upon the acquisition of The country by the United States, on the seventh of July, 1S4I!; that it possessed an interest in lands to the extent of four square leagues measured off from the northern portion of the peninsula upon which the city is situated; and that [145]*145the city has succeeded to such interest, are matters no longer open to discussion. They have been settled by judicial decision in a controversy between the city and the United States after the most mature consideration.
it was admitted on the trial that the premises in controversy were within the-four square leagues mentioned. They were not, therefore, the subject of levy and sale under judgment and execution against the city. That source of title to the defendants may therefore be laid aside. So the grant of the justice of the peace may also be passed over without consideration, as no authority for the exercise of any power to grant portions of the municipal lands by officers of that description in the pueblo lias been furnished us in the laws or customs of the country. The alleged title of the defendants by conveyance from the city arises in this wise: in August. 1850, the common council of San Francisco passed an ordinance to create a fund for the erection and promotion of city improvements, and provided, in the execution of this purpose, for the issue of city stock to be called a "sinking fund siock." The ordinance appointed a board of five pel-sons. entitled "the commissioners of the sinking fund." and invested them with the charge ol' all the real estate in the possession of the city, and pledged the property as security for the redemption of the stock and'interest at maturity. By a subsequent ordinance the common council directed a conveyance of this property to be made to the commissioners, .in trust, foi the purposes mentioned; and such conveyance was executed on the twenty-fifth of December, 1850. This conveyance includes the premises in controversy, and all the tract known as the "Government lie-serve" at Itincou Point.
On the fourth of May. 1851, llie legislature of the state passed an act "to authorize the funding of the boating debt of the city of San Francisco, and to provide for the payment of the same." The act created a board called •‘Commissioners of the Funded Debt of the City of San Francisco." and directed the commissioners of the sinking fund, created as mentioned by the ordinance of the city, to convey to them all the property and rights of property belonging to the city; and empowered them to sell or lease the property at sucli time and place as in their discretion the interest of the city might require, and to apply the proceeds to the liquidation of its floating debt.
Under this act the commissioners of -the sinking fund, on the seventeenth of May, 1851. executed the conveyance directed, of all the property embraced in the deed which they had received Soon after the issue of the grant by the justice of the peace, which we have mentioned, the defendants, or the parties whom they represent, went into possession ot the premises, and were in possession when they obtained the conveyance of the sheriff. Under the title thus derived they asserted ownership until the passage of the ordinance of the common council for the settlement of land titles, in June, 1S55, known as the "Van Ness Ordinance,” and its confirmation by the legislature in March, 1858, after which they also claimed under the ordinance. Some conflict thus arose between them and the commissioners of the funded debt. Similar conflicts had also arisen with other parties, claiming under like circumstances against the commissioners. To remove the embarrassment arising from this cause, the legislature, in April, 1802, passed an act authorizing a compromise between parties thus situated and the commissioners; and a conveyance of the title by the latter to such parties Under this act, and in pursuance of its provisions, a compromise was effected, and conveyances were executed in 1862, and 181E1 to the defendants, or the parties represented by them.
No question is raised as to the validity of these conveyances, except that the premises had previously been appropriated for the public purposes of the government. Though it has been held that there was no authority in the common council of the city, under the charter of 1850, to create the board of commissioners of the sinking fund, or to execute a conveyance of the city property to them, yet it has not been doubted that it was competent for the legislature to direct a conveyance of the property by them to the commissioners of the funded debt, or that such conveyance passed the interest of the city. The power of the city to dispose of the property was, after the admission of California into the Union, subject to the control of the legislature of the state. The legislature could restrain or enlarge, at its pleasure, the authority of the agents of the city over the property. and could authorize a transfer of the title through the commissioners of the sinking fuño as well its in any other way. or through, any other body. Payne v. Treadwell. 16 Cal. 233, and authorities there cited.
The real question, therefore, at issue, relates to the efficacy of the acts of the officers of the army of the United States, in creating a reservation of the promises before the title had thus passed from the city, and the effect upon such acts of the legislation of congress and the decree in the Pueblo Case. In considering the claim of the plaintiffs, we shall assume, that until the action of the city authorities in disposing of the property, the United States retained the same right to reserve for public purposes portions of the pueblo lands to which the city had succeeded as they possessed to reserve portions of the public domain; at least, that they retained such right previous to the admission of California into the Union. As we have had frequent occasion to observe, it is difficult to state with precision the exact nature of the title or interest which the pueblo possessed in its lauds. They were not held in [146]*146absolute property, with full right of alienation and disposition. They were subject to the control and disposition of the government. until by proceedings of the officers of the pueblo, acting under the regulations established for the disposition of the property, the title passed to private parties. Several grants to individuals within the limits of the four square leagues were made by the governors of the department, some with, and some without, the sanction of. or consultation with, the authorities of the pueblo. The validity of these grants has been repeatedly recognized by judicial decision. If the governors could thus pass the title to private persons, it would seem to be a reasonable inference. as we said in the case of Grisar v. McDowell [Case No. 5,832]. “that they could reserve from the disposition of these authorities such portions of the lands as might be required by the government for public purposes." This right of control and disposition. which existed with the former government, passed iq>on the cession of the country, with all other public rights, to the United States, and could afterward be exercised by them at any time before the property had passed to third parties by the action of the authorities of the pueblo in accordance'with existing law.
The various acts of the officers of the army of the United States, upon which the asserted reservation is based, can be briefly stated. On the tenth of March, 1847, whilst California was in possession of the military forces of the United States. Brigadier-General S. W. Kearny, then acting as military governor of the country, issued a document purporting to grant and convey to the town of San Francisco all the right, title and interest of the United States, and of the territory of California. in the beach and water lots on the east: front of the town, included between points known as “Rincon" and “Fort Montgomery." excepting such lots as might be afterwards selected for the use of the government by the senior officers of the United States, then present a.t the town. The attempted grant was subject to the condition that the property should be sold at public auction after three months previous notice. On the twenty-third of dune. 1847, Major General Sherman, then first lieutenant of the third artillery, and assistant adjutant-gen-oral, acting under the authority of Colonel Mason, who had succeeded General Kearny. ns military governor of California, directed Major .Tas. A. Hardie. who was then in command at San Francisco, to consult with < lommodore Biddle, or other senior naval officers on the station, and 1o select, in accordance with the terms of the grant of General Kearny, lots best suited for wharves, both for army and navy purposes, with space for all the buildings that it might become necessary to erect, and a suitable lot for a customhouse. and the storehouses that it might require: and to inform the alcalde of the town of the selections'made before the day of sale under the grant. On the eighteenth of duly, 1847. Major Hardie informed the alcalde of the town that, in obedience to the orders of the governors he had selected for the use of the government all that portion of Rincon Point which was not then divided off into lots, and was marked “Government Reserve" upon a map of the beach and water lots then in the alcalde’s office: and that the portion thus designated included all of Rincon Point, lying east of Beale street and south of Folsom street, and bounded by the tide waters of the bay; and that he had also selected certain described beach and water lots. On the thirtieth of September, 1847, Colonel Mason. acting as such military governor, notified the alcalde of the town not to grant or give any deed for.lots within the tract thus designated at Rincon Point, stating that the land was intended for the use of the United States government. Several communications between the commanding generals of the country and subordinate officers, subsequent to 1847. up to the time of the admission of California into the Union, relate to the land designated at Rincon Point, and speak of it as reserved to the government for public purposes. Notices were directed by the officers to be published forbidding the erection of buildings upon the premises, or any intrusion thereon, and in some instances parties intruding were forcibly removed. On the twenty-seventh of November, 1S4Í), General E. D. Keyes, then captain of the third artillery ai San Francisco, executed, with the approval of Brigadier-General Riley, the successor of Colonel Mason, as military governor of California. to Theodore Shillaber a lease for ten years of a part of the beach and water lots known as the “Government Reserves,” and also that portion of the upland thus designated as Rincon Point. This lease was approved by the secretary of the interior in April. ISfil. In .Tune. 1851. the commissioners for the construction of public buildings at San Francisco; appointed by the secretary of the treasury, notified the lessee. Shillaber. that acting under the instructions of the secretary. they had selected Rincon Point as a suitable site for a marine hospital, without, however, indicating what portion of the general tract thus designated was intended. By ¡t provision of the lease to Shillaber. the government reserved the right to take* possession at any time of any portion of the property which might be required for its purposes. the lessee being allowed ninety days for the removal of any buildings, which might lie placed thereon.
Previous to the selection, and on the thirtieth of September, 1850. congress had appropriated the sum of $50.001) for the construction of a marine hospital, to be located by the secretary of the treasury, at or near San Francisco. In August. 1852. and in August. 1854. further appropriations were made for the completion of the building, and [147]*147tlie arrangement and inclosure of tlie grounds upon wliicb it is situated. But before the erection of the building was commenced, application was made on behalf of the government to the city of San Francisco for a conveyance of its interest in the land at Rincon Point, which had been selected as the site of the hospital. In accordance with that request an ordinance was passed on the tenth of December. 1852. by the common council of the city, directing the mayor to execute to the United States a conveyance of its right, title and interest to six iifty-vara lots, which include the premises in controversy. The hospital was subsequently erected on two of these six lots, being lots numbers one and two of the block, and out-buildings connected with the hospital were erected on two others of them, being numbers three and four of the block.
It is very clear from this statement of the action of the military officers of the United States, that there was no valid reservation for public purposes made by them of the tract at Rincon Point. The treaty of Guadalupe Hidalgo was not made until tlie second of February. ISIS, and ratifications were not exchanged until the thirtieth of May following. Until the treaty, and long subsequently. California was simply occupied by the military forces of the United States, and whatever powers the officers of the army may have exercised, from the necessity of the case, for the preservation of the country and maintenance of public order, the power to grant or dispose, or to reserve from grant or disposition, any portion of the pueblo lands, or any portion of the public property of the United States, was uot one of them. They could in no respect impair any rights which the United States may have acquired over either by the conquest, or might subsequently acquire by treaty. If the absolute title to the land liad passed to the Uuited States, neither its alienation, nor its reservation could have been made, except by congress. or subject to its regulation. The constitution vests in that body the sole power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States. The attempted grant to San Francisco of the beach and water lots by General Kearny was. therefore, without any validity. It was an act beyond his authority to execute, and it. of course, passed no interest whatever.
The selection made by Major Ilardie of the. upland at Rincon Point, for the use of the government was not a selection in accord-anee with the terms of tlie Kearny grant, ns that grant embraced only beach and water lots; nor was the selection in conformity with the instructions of Colonel Mason, un-dor which Major Hardie purported to act. 'fliis fact, however, did not change the char-actor of the proceeding, for such selection appears to have been subsequently approved by tbe commanding general. This approval. however, did not add to or give validity to the transa etion. If the title had been in the United States absolutely, the selection and the subsequent acts of the military officers in excluding intruders, and in holding tlie premises, would not have effected an appropriation of the land to public purposes. Such appropriation of public lands could only have been made by act of congress or order of tlie president, and it is not pretended that any such act was passed or any such order was made in tlie present case.
Nor can the legislation of congress, in September 1850, appropriating $50,000 for the construction of a marine hospital, to be located by the secretary of the treasury, at or near San Francisco, he justly consideren as giving any sanction to the previous proceedings of the officers of the army, or as bal ing any reference whatever to the property at Rincon Point. It only indicated tlie intention of congress that the institution should be erected at or in the vicinity of the city; and was as applicable to any other point as the one finally selected by tlie commissioners of public buildings. The appropriations made In 1852 and 1854 for the completion of the building and the inclosure of the site, cannot be deemed to have any efficacy whatever. ns the title had previously passed to tlie commissioners of the funded debt under the legislation of 1851.
There are several circumstances which go to show that the title derived from the city is the only "title upon which the United States ever relied. In the first place, the tract designated as “Rincon Point” by the officers of the army in the proceedings to make a reservation, included all the land lying cast of Beale street and south of Folsom street, and bounded by the tide wateis of the hay, which embraces several entire blocks; but tlie United States since 1850 have made no claim, except in one insta rice, to any portion of it. besides the six lots embraced in the deed of the city. The exceptional instance was in 1805. when suit was brought for the entire trad. The suit was abandoned, it is understood, upon a representation of the facts at Washington. In 1he. second place, in November. 1850. a formal reservation was made by order of President Fillmore, for the purposes of the government. of several parcels of land at San Francisco. and its vicinity, and no reference was made therein to the land at Rincon Point: nor was any such reference made in any subsequent order of the president respecting reservations at San Francisco. The approval of the lease to Shillaber. by the secretary of the interior, in April 1851. added nothing to the validity of the attempted reserva lion. Whilst the president was authorized, in particular cases, to reserve from sale for public uses portions of tlie public, lands, no such power was vested in the head of any department of the government Nor eotllil the secretary of the treasury execute or approve of [148]*148a lease of any property belonging to the United States without special authority of law. In the third place no attempt was made to erect the building until after the deed of the city was obtained.
Findings were accordingly filed and judgment entered thereon for the defendants. The case was afterward taken to the supreme court of the United States, on writ of error, and the judgment was there affirmed by a divided court.
It only remains to consider the effect of the final decree in the Pueblo Case. Parties obtaining conveyances from tin* city, whilst its claim for the lands was pending before the tribunals of the United States, necessarily took whatever they acquired, subject to the determination of the claim. Their title stood or fell with the claim, for the decree took effect by relation on the day when the petition of the city was presented to the land commission, in July, 1852. It is to be considered as if entered on that day. The claim confirmed embraces an area of four square leagues, subject to certain deductions. among which are ‘‘such parcels of land as have been heretofore reserved or dedicated to public uses by the United States." It is contended that this exception covers The premises in controversy. We do not think so. The terms are fully answered by limiting the application to the four lots actually occupied by the hospital, and the reservations at the Presidio and Black Point. They cannot be extended so as to embrace the two lots claimed by the defendants withouf being also extended so as to include the whole of the tract known as “Rincon Point,” embracing several blocks held under conveyances from the city, and which have been improved by the erection of largé and valuable buildings. The construction contended for would also conflict with the concluding clause of the decree, which declares that the confinnation is in trust for the benefit of lot-holders under grants from the pueblo, town or city of San Francisco. The term “grants " comprehends all previous conveyances from the city.
It follows that judgment must pass for the defendants. Counsel will prepare the proper findings, and present them to the court for settlement.