Fischer v. City of Benicia

Benicia was incorporated under an Act of the Legislature, and the lands included within its corporate limits, under the authority of its officers, were laid out into blocks, lots, streets, alleys, public squares, etc., and a map thereof made and filed. In 1851 another Act incorporating said city was passed, and another map made and adopted as the official map of said city. Many lots were sold to citizens and others in accordance with said surveys and maps by the parties claiming title under the said Mexican grant. The plat embraced a large tract of land, over the greater portion of which the streets and blocks have never to this day been opened, or in any way occupied as public streets, nor have the lots been separately occupied as town lots, but, on the contrary, the land on a large portion of the tract has been fenced up and occupied in large tracts for agricultural and pasturage purposes. In 1862 the claim of title under the Mexican grant was finally rejected by the Supreme Court of the United States, so that the title then appeared to be in the United States, and the lands to be a part of the public domain of the United States. Subsequently the city authorities presented a memorial to Congress, praying the passage of an Act authorizing the city to enter the lands within the corporate limits for the benefit of the occupants and bona fide owners of improvements thereon, according to their respective interests. On the 20th of February, 1866, the Legislature of California, apparently in anticipation of the passage of such an Act by Congress, passed an Act providing for giving notice to claimants, and adopting proceedings for ascertaining who were the rightful occupants of portions of lands so within the charter limits, and for vesting in such occupants any title derived by the city through any patent from the United States to the City of Benicia under any such contemplated Act of Congress, and for disposing of such unoccupied and unimproved property as should fall to the city. Section eleven of said Act authorized the Trustees to close and convey to the owner or owners of property fronting thereon, any and all public squares, streets, and

alleys, as laid down on the official map of said town, north of M street and west of Third street. (Stats. 1865-6, p. 110, Sec. 11.) The portion thus described outside of said lines, includes about two thirds of the entire city plat, and constitutes a large part of that portion in which the streets, alleys, and public squares have never been opened, or used as such, while that portion of the city within said lines, and between these and the waters of the bay, embraces that portion of the city which has been occupied as city lots, and in which the streets, etc., have been opened and used as public streets. On the 23d of July following (1866) Congress passed “ An Act to quiet the title to certain lands within the corporate limits of the City of Benicia,” etc., which provides “that all the right and title of the United States to the land situated within the corporate limits of the City of Benicia, in the County of Solano, State of California, as defined in the Act incorporating said city, passed by the Legislature of the State of California, April 24th, 1851, be and the same are hereby relinquished and granted to the said city and its successors, upon trust, however, that so much of said lands as is in the bona fide occupancy of parties upon the passage of. this Act, by themselves or tenants, shall be conveyed by said city to such parties; provided, however, that the relinquishment and grant by this Act shall not extend to any lands within said corporate limits, occupied as a military depot of the United States, or heretofore reserved by the United States for public purposes, nor shall they interfere with or prejudice any valid adverse right or claim, if such exist, to said land, or any part thereof, or preclude a judicial examination and adjustment thereof.” (14 United States Statutes at Large, 209.) Under these Acts of the Legislature of California, and of Congress, the plaintiff presented his claim to a tract of land, lying outside and to the northward of said M and West Third streets, of which he had been in possession over five years. It was inclosed in large tracts, so as to embrace blocks, lots, portions of streets, alleys, and public squares, and used for residence, tillage, and pasturage,

like other farming lands. Hone of the alleys, streets, or of the portion of Pacific Park, thus inclosed and used, had ever been used as streets, alleys, or park. The Trustees found in favor of the plaintiff" as to the lots and blocks so possessed, and awarded the same to him, but excluded the streets, alleys, and portion of the park, on the ground that it was not contemplated by the Act of Congress that these should be conveyed, and ordered a deed accordingly. The District Court, however, in this action, took a different view, and adjudged that he was entitled to a conveyance of the whole land occupied by him, including the streets, alleys, and portion of the park, of which he was possessed, and in the actual bona fide occupation at the time of the passage of the Act. We think the latter view correct. The title, at the passage of the Act, was in the "United States. The land was a part of the public domain. Heither the United States, nor the occupant for the preceding five years, had ever made any dedication of these lands, or any part of them, to public use. The City of Benicia had not availed itself of any other statutes of the United States, then in force, to acquire title to the lands. The only right it has is derived through the Act of Congress of July 23d, 1866, and the title thus acquired is taken subject to all the trusts and limitations in the Act prescribed. The Legislature of California itself could not modify or limit those trusts. The grant under the Act is, as we have seen, “ upon trust, however, that so much of said, lands as is in the bona fide occupancy of parties, upon the passage of this Act, by themselves or tenants, shall he conveyed by said city to such parties.” Hothing is said about lots, blocks, streets, alleys, or parks. It says, “so much of said lands,” without limitations, or exception, so far as streets, alleys, or parks are concerned. There are other specific exceptions in the proviso, not affecting the question in this case, and it must be presumed that those specified are all the exceptions designed to be made. Ho authority is given to the Legislature, or city, to limit or modify the trust. In the

large tract outside of M and West Third streets, the streets, alleys, and parks laid down on the map do not appear to have ever been opened, or occupied, or used for such purposes by the public. It is evident that the city, like many others, was laid out on a grand scale, and far in advance of the wants of the generation then hi being; and this must have been the opinion of the Legislature in adopting the eleventh section, of the Act of the Legislature, before cited, authorizing the Trustees to vacate the streets, alleys, etc., in that part of the city. For years that part has been occupied like other farming lands, and the tract in question has been thus fenced up and occupied without any reference to streets, alleys, etc. Within the streets named—M and West Third streets—the streets, etc., have been, so far as needed at least, opened and used. Such streets, etc., as have been opened, used, or occupied as such, and so far as the wants of the town had then required, would not, of course, have been fenced up or occupied. They could not well have been in the bona fide occupancy of private parties, and would not, therefore, pass to private parties under the terms of the Act.

We do not see that this provision, as construed, can produce any inconvenience to the public. Whenever the public wants require an extension of the streets over the lands now used for agricultural purposes, the interests of the proprietors, unless human nature has been greatly changed, will doubtless be sufficient to induce a surrender of all that may be required for streets, in order that the value of the remainder, greatly enhanced thereby, may be realized. These considerations were doubtless kept in view in the passage of the Act. But, however this may be, we must construe the Act as we find it, and it seems to us, under the plain reading af the statute, that the plaintiff is entitled to a conveyance of the land, of which he was in the bona fide occupation at the time of the passage of the Act of Congress, including that which was merely designated as streets, etc., on the map of the city, but never used as such. The Government owned it. Ho part of it had ever been dedicated to public use by

the owner. The United States Government was authorized to affix its own conditions to its legislative grant, and one of the terms of the grant, was, that “so much of said lands as is in the bona fide occupancy of parties,” without other limitation, should be in trust for such occupants, and “be conveyed by said city to such parties.” And the rights of the parties rest upon this Act.

Judgment affirmed, and remittitur directed to issue forthwith.