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town was entitled to four square leagues. On the contrary, those acts were tantamount to an assertion by Congress of its undoubted right to control the disposition of the land so far as it deemed best to do so. Acts July 1, 1864, c. 194, sec. 5, 13 Stat. 332, 333, and March 8, 1866, c. 13, 14 Stat. 4.

In passing, we also observe that the same reasons which cause it to be unnecessary to examine, in detail, the opinion of the board of land commissioners, also renders it unessential to analyze and determine the persuasive effect of the cases subsequently decided by the Supreme Court of California, cited in argument by the city, viz., Welch v. Sullivan, 8 California, 165, 168; Hart v. Burnett, 15 California, 530. The issue which those cases presented was the nature of the title of San Francisco, on the conceded premise that it possessed a title of some kind. This question was solved by a full reference to the Spanish and Mexican law, much in the same manner as the board of land commissioners had previously done.

An appeal was taken from the decision of the board of land commissioners to the District Court of the United States. We quote, as to subsequent steps in the controversy, from the opinion in San Francisco v. LeRoy, 138 U. S. 656, 666:

"In April, 1851, the charter of San Francisco was repealed and a new charter adopted. Pending the appeal of the pueblo claim in the United States District Court, the Van Ness ordinance, above mentioned, was passed by the common council of the city, by which the city relinquished and granted all its right and claim to land within its corporate limits as defined by its charter of 1851, with certain exceptions, to parties in the actual possession thereof by themselves or tenants on or before the first of January, 1855; provided such possession was continued up to the time of the introduction of the ordinance into the common council, which was in June, 1855, or, if interrupted by an intruder or trespasser, had been or might be recovered by legal process; and it declared that for the purposes contemplated by the ordinance persons should be deemed possessors who held titles to land within those limits by virtue of a grant made by any ayuntamiento, town council, alcalde or justice of the peace of the former pueblo

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before the 7th of July, 1846, or by virtue of a grant subsequently made by the authorities, within certain limits of the city previous to its incorporation by the State, provided the grant, or a material portion of it, had been recorded in a proper book of records in the control of the recorder of the county previous to April 3, 1851. The city, among other things, reserved from the grant all the lots which it then occupied or had set apart for public squares, streets and sites for school houses, city hall and other buildings belonging to the corporation, but what lots or parcels were thus occupied or set apart does not appear.

"Subsequently, in March, 1858, the legislature of the State ratified and confirmed this ordinance (Stat. of Cal. of 1858, c. 66, p. 52), and by the fifth section of the act of Congress to expedite the settlement of titles to lands in the State of California, the right and title of the United States to the lands claimed within the corporate limits of the charter of 1851 were relinquished and granted to the city and its successors for the uses and purposes specified in that ordinance. 13 Stat. 333, c. 194, § 5."

But that the relinquishment thus referred to was not considered by Congress as equivalent to a recognition of an absolute title in the city of San Francisco, but was deemed to be an act of grace and grant on the part of Congress, is shown by the fact that the fifth section contained, in addition to the relinquishment referred to in the foregoing quotation, the following provision: "There being excepted from this relinquishment and grant all sites or other parcels of lands which have been, or now are, occupied by the United States for military, naval or other public uses, or such other sites or parcels as may hereafter be designated by the President of the United States, within one year after the rendition to the General Land Office by the surveyor general, of an approved plat of the exterior limits of San Francisco, as recognized in this section, in connection with the lines of the public surveys." It was also further provided: "That the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others whether asserted

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adversely under rights derived from Spain, Mexico or the laws of the United States, nor preclude a judicial examination and adjustment thereof."

This act of Congress transferred the appeal which had been taken to the District Court from the decision of the board of land commissioners from that court to the Circuit Court of the United States. The latter court, in its opinion rendered on the hearing of the appeal, San Francisco v. United States, 4 Sawyer, 553, 561, 573, accepted as admitted "the existence of an organized pueblo at the present site of the city of San Francisco upon the acquisition of the country by the United States on the 7th of July, 1846; the possession by that pueblo of proprietary rights in certain lands and the succession to such proprietary rights by the city of San Francisco." It was also assumed to be conceded (pp. 561-574): "That the lands appertaining to the pueblo were subject, until by grant from the proper authorities they were yested in private proprietorship, to appropriation to public uses by the former government and, since the acquisition of this country, by the United States." The Circuit Court, contrary to the holding of the board, found that the limits of the pueblo had never been measured or marked off, and considered the question as to the extent of lands in which a pueblo acquired an interest under Mexican laws, and determined it to be four square leagues. But although the opinion referred to the Spanish law, the conclusion as to the right of San Francisco was based upon Mexican laws, customs and usages, and the reasoning of the opinion was in accord with that of the board of land commissioners, to which we have already referred. The claim of the city was confirmed "in trust, for the benefit of the lotholders under grants from the pueblo, town or city of San Francisco, or other competent authority, and as to any residue in trust for the use and benefit of the inhabitants of the city." There was excepted, however, from the confirmation such parcels of land within the four square leagues, “as have been heretofore reserved or dedicated to public uses by the United States; and also such parcels of land as have been by grants from lawful authority vested in private pro

Opinion of the Court.

prietorship, and have been finally confirmed to parties claiming under said grants, by the tribunals of the United States, or shall hereafter be finally confirmed to parties claiming thereunder by said tribunals, in proceedings now pending therein for that purpose." San Francisco v. United States, supra, 577.

That this decision was in conflict with the claim of the city that under the Mexican law it was entitled, as a matter of right, to four square leagues, is shown by the finding of the court that whatever was the right in the city it was so inchoate that up to the time of confirmation by the United States all the ungranted land within the area claimed was subject to such dedication for public purposes as the United States saw fit to make. That is, that the whole ungranted land covered by the claim was substantially public domain at the entire disposition of the United States for public purposes. That this decision was not in accord with the asserted claims. of the city of San Francisco, is also again shown by the fact that appeals were taken therefrom to this court by both the city and the United States. Pending these appeals, Congress passed an act to quiet titles to the land within the city limits, which was approved March 8, 1866, c. 13, 14 Stat. 4. At that time the limits of the city were coterminous with those of the county, and embraced the whole of the four leagues to which the city asserted rights. The act of 1864, it must be remembered, merely released the right and title of the United States to the lands within the then corporate limits of the city of San Francisco, as defined in the charter of April 15, 1851, which was much less than the four square leagues.

By the act of 1866 the United States relinquished and granted to the city all the land embraced in the decree of the Circuit Court subject to the reservations and exceptions designated in that decree, and upon the following further conditions and trusts, viz.:

"That all the said land, not heretofore granted to said city, shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon.

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such terms and conditions as the legislature of the State of California may prescribe, except such parcels thereof as may be reserved and set aside by ordinance of said city for public uses."

The act moreover provided that such relinquishment and grant should not interfere with or prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from Spain, Mexico or the United States, or preclude a judicial examination thereof.

It will thus be seen that the act of 1866 again asserted the power of Congress over the entire subject by materially modifying the decree of the Circuit Court of the United States, inasmuch as it placed restrictions on the power of disposition of the lands, and practically imposed a trust, not only upon the city of San Francisco, but upon the legislature of the State of California. In consequence of the passage of this act, the appeals of both the city and the United States which were pending in this court were withdrawn. Townsend v. Greeley, 5 Wall. 326; San Francisco v. Le Roy, 138 U. S. 656, 667.

Subsequent to the passage of the act of Congress, an act was passed by the legislature of California known as the "San Francisco Outside Land Bill," but it was vetoed by the governor of California, because in his opinion it was in conflict with the act of Congress of March 8, 1866. (Dwinelle, App. p. 352.)

We are now brought to consider the last proposition advanced by the city, which is—

Third. That the interpretation of the Spanish law upon which the city bases its right, is sanctioned by previous adjudications of this court.

The decisions relied upon are Townsend v. Greeley, 5 Wall. 326; Grisar v. McDowell, 6 Wall. 363; Brownsville v. Cavazos 100 U. S. 138; and San Francisco v. LeRoy, 138 U. S. 656.

An examination, however, of these cases will show that they cannot be held to sustain the proposition.

Townsend v. Greeley came to this court on error to a judgment of the Supreme Court of California, affirming a judg ment in favor of Greeley, who had acquired a title to land