Pacific Coast Law Journal.

VOL. 2.

JANUARY 4, 1879.

No. 19.

Current Topics.

WE give considerable space in this number to the Throckmorton case. It is our desire to acquaint the bar with every important decision available, and especially those that affect the titles to lands within the State. We feel assured our efforts are appreciated.

JUDGE WRIGHT, of the County Court, has made the following order in insolvency: The assignee or assignees of any insolvent shall, upon request of any creditor or creditors of such insolvent, permit said creditor or creditors, or their agent or agents, selected for such purpose, to inspect or examine, at reasonable times, any or all of the books, papers, vouchers, notes, bonds, bills, securities, or other evidences of debt, in any manner relating to the estate of said insolvent, which have come into the custody or control of such assignee or assignees.

THE question raised and discussed in regard to the Bodie mine titles presents an important issue. By the Act of March 3, 1853 (10 Stat. 244), Section 7, Congress granted Sections 16 and 36 to the State of California for school purposes. The same act provides for the selection of other lands by the State, in lieu of those sections, in the event of certain contingencies. It is claimed by the mining companies that, in the event these sections should contain mineral lands, they are excepted from the donation, and the State can have no title to them as against those claiming under United States patents. It is contended, on the other hand,

that the act confers title absolute, except in certain events, and makes no exception in respect of mineral lands. We present below a review of the question, and cases bearing upon it, furnished us by one well-informed in such matters: The State of California derives its title to these sections under the provisions of the sixth section of the Act of Congress, approved March 3, 1853.

This section provides that all the public lands in the State of California, whether surveyed or unsurveyed ** * * shall be subject to the pre-emption laws of 4th September, 1841, etc. But there are four exceptions to this provision, and which are embodied in that portion of the above sentence marked with asterisks.

1. Sections Sixteen and Thirty-six, which shall be and hereby are granted to the State for the purposes of public schools in each township.

2. Lands appropriated under the authority of this act, or reserved by competent authority.

3. Lands claimed under any foreign grant or title.

4. Mineral lands.

The seventh section of the act provides that where settlement is made prior to survey upon Sections Sixteen or Thirty-six, or where such sections are reserved for public uses, or taken by private claims (Spanish grants), the State may select other lands in lieu of or as indemnity therefor, but in no portion of the act is there anything to indicate that Congress did not intend to grant to the State these sections when mineral, nor is there any provision made to indemnify the State for the loss of such mineral sections, which would certainly have been done had Congress intended to reserve such mineral sections from the operation of the grant to the State.

The Supreme Court of California has repeatedly decided that the wording of the act "shall be and hereby are granted, etc.," constituted a present grant to the State of such sections, and that the title of the State thereto vested immediately on the passage of the act. And in Higgins vs. Houghton (25 Cal. 252), the court held that "mineral lands are not ex

cepted from the operation of the grant of the Sixteenth and Thirty-sixth Sections in each township made to California for school purposes by the Act of Congress of March 3, 1853," the decision being rendered by a full bench, all the judges concurring.

In this view of the act our Supreme Court has never beenoverruled by the Supreme Court of the United States; but, on the contrary, that tribunal held in the case of Cooper vs. Roberts (18 Howard, 173), which was a case from Michigan, that the words of the act, "Section Sixteen, shall be granted, etc.," constituted a present grant to that State, and that under it the minerals passed to the State.

Some reference has been made to the cases of Sherman vs. Buick and Natoma Water and Mining Co. vs. Bugbey to prove that the Supreme Court of the United States has decided that the State of California acquires no title to Sections Sixteen and Thirty-six when mineral; but in neither of these cases did this question come up for decision, as both were decided on the single question of the right of a settler on such sections prior to survey to enter the same under the pre-emption laws, and the court very properly decided that he had such right.

Unfortunately for the position taken by learned counsel, that the United States Supreme Court in these two cases holds that the State acquires no title to these sections when mineral, Mr. Chief Justice WAITE, in delivering the opinion of the court in the case of Natoma Water and Mining Co. vs. Bugbey, says: "In Sherman vs. Buick it was decided that the State of California took no title to Sections Sixteen and· Thirty-six under the Act of 1853 as against an actual settler before the survey, claiming the benefit under the pre-emption laws, who perfected his claim by a patent from the United States. *** As against all the world, except the pre-emption settler, the title of the United States passed to the State upon the completion of the surveys. And if the settler failed to assert his claim or make it good the rights of the State became absolute." (See 96 U. S., page 167.)

In the Keystone case we find that the decision was render

ed by the then Secretary of the Interior, à ministerial officer, whose opinions have no weight in a court of law. Moreover, these opinions are prepared and written out by some irresponsible clerk in the department, who may or may not be a person competent to pass upon questions of law, and about the only connection the Secretary of the Interior can be said to have in the rendering of the opinions is the attaching of his signature thereto without even knowing its

contents.

But one case has ever been decided by the United States Supreme Court holding that a State does not acquire these sections when mineral, viz.: Heydenfeldt vs. Daney Gold and Silver Mining Co., decided in October, 1876, and reprinted in 93 U. S., page 637, et seq., and which went up from Nevada.

This case was decided by the court, not on the ground that under the words of the original grant minerals were excluded; but that Congress had subsequently passed an act reserving such mineral lands from the operation of the grant, the conditions of which the State of Nevada, by legislative act, dated February 13, 1867, had ratified and accepted.

No reservation having been made of the mineral lands in the grant to the State, the Act of Congress of July 26, 1864, 1870, and May 10, 1872, providing for the sale of mineral lands, can be of no effect as against the title of the State to the Sixteenth and Thirty-sixth Sections though mineral, for, as has been very ably expressed by Hon. Edward Bates, while Attorney-General of the United States: "The Government, like an individual, has no power to withdraw or annul its grants of land. The first lawful grant must stand, and the second can not operate as a conveyance, for the simple reason that the grantor when he made it had no estate to convey."

Supreme Court of California.

NOVEMBER TERM, 1878.

[No. 5,433.]

[Filed December 9, 1878.]

S. C. V. PEAT FUEL CO. APPELLANT,

VS.

TUCK, RESPONDENT.

ATTACHMENT-IMPLIED CONTRACTS.-Where a sum of money has been paid upon a consideration which has entirely failed, the law implies a promise to refund it. In such a case there is an implied contract for the direct payment of money, and an attachment will lie in a suit to recover the money so paid.

Appeal from the Twentieth Judicial District, County of Santa Clara.

Sufficient facts appear in the opinion.

Moore, Laine & Leib, for appellant.

S. A. Barker, for respondent.

CROCKETT, J.

The motion to dissolve the attachment was not based on any alleged insufficiency in the affidavit, but on the ground that the cause of action set forth in the complaint was of such a nature that under the statute no attachment could issue upon it; or, in other words, it was claimed that the facts alleged in the complaint did not state a cause of action "upon a contract, expressed or implied, for the direct payment of money." The substance of the complaint was, that the defendant, by a written contract (a copy of which was annexed to the complaint), had agreed with the plaintiff to construct a peat machine and its appurtenances within sixty days, at his own expense, and put the same in running order at a point on the San Joaquin River. The contract specifies the machinery, and as a part of it a scow of certain proportions; and the complaint avers, that at the time of the execution of the agreement and soon thereafter, the plaintiff