2. That the steamer Louisiana arrived on said day in Hampton Roads, and was moored to a wharf at Fortress Monroe; that about three o'clock P. M. of said day, said steamer parted her said moorings, and under a heavy wind from the northeast drifted up the said Roads, broadside, against and across the stern of the Flushing, and destroyed her cabin, etc.

3. That the breaking away from her moorings and drifting of the Louisiana, and her collision with the Flushing, were the result of gross carelessness and mismanagement on the part of the officers and crew of the said steamer, and those having charge of her, on the day when the collision took place.

4. That the Louisiana was not properly secured or moored to said wharf and broke away because of the insufficiency and inadequacy of her said moorings.

5. That those in charge of the Louisiana negligently allowed the steam in her boiler to get so low that, when she so parted her moorings the engineer could not control her motions; and that she drifted at the mercy of the waves; and that if her engine and motive power had been in proper order, she could readily have been kept clear of the Flushing.

6. That it was impossible for the Flushing to get out of the way.

The following synopsis will show the contents of the answer:

1. That the Flushing was derelict, forsaken, and abandoned, lying partly sunken, on Hampton bar, in a very dangerous and improper position, in the highway of vessels there navigating, and had been so lying for more than six weeks before the collision, with no person on board; and the answer propounds that she was an existing public nuisance.

2. That the Louisiana, at the time, was in the service of the government of the United States, under a charter by which the government was to coal the vessel; and that in obedience to orders emanating from the government and given by competent authority, the Louisiana proceeded to said wharf for the purpose of there taking in coal; that said wharf was not selected by the master of the Louisiana as her berth, but was described to him as the wharf at which said steamer was to lie for the purpose of coaling.

3. That the said wharf was of such narrow front that it was not possible for the Louisiana because of her length, to lie flush alongside of said wharf; and that, for that reason, uncommon pains were taken to fasten her securely, as a strong, stiff east wind was blowing at the time, and a strong tide, some time after the Louisiana had arrived at said wharf, had set in from the east; that she was, accordingly, fastened by four new cables, one of them a seven inch cable, and the three others each eight and a half inch cables.

4. That the wind, which had previously been violent, suddenly greatly increased in fury, and acting upon the waters of the tide, increased the size and momentum of the waves; and that the combined action of the wind and waves upon the hull of the Louisiana, forced her stern from its position, the stern cable giving way under the pressure; and the stern being thus violently driven round, the steamer was forced from her moorings, the cleets by which the

steamer was attached to her cables in front giving way; and thus the steamer, until her engine could be put in motion, was left completely at the mercy of the wind and waves.

5. That there was sufficient steam in the boiler, and that, in obedience to signals to back, the Louisiana was backed sufficiently to run out the anchor, and that, for a brief space of time, the steamer held to her anchor; but that the fury of the storm produced so great a strain, that the chain of the anchor parted, and the steamer was again free of the control of any fastening.

6. That there was no negligence or want of care and no want of exertion on the part of those in charge of the Louisiana, and the col. lision was the result of inevitable accident.

The cause was decided by the district judge on oral testimony. It was heard by the Chief Justice on appeal, upon the written testimony embodied in the record.

Before the passage of the final decree on the appeal, the libellant, on motion, enlarged his claim from $2,000, the amount originally claimed, to $3,000, and the decree was in favor of the libellant for $2,705, each party to pay its own costs in both courts.

There are two wharves at Fortress Monroe, the government wharf, at which the Louisiana was moored, generally called the "old wharf,” and the Baltimore wharf, commonly called the "new wharf," belonging to and ordinarily used by the appellant.

The "old wharf" is built in the form of a "T," and its outer end is about eighty-two feet in width. It faces the open sea, looking nearly towards Cape Henry. Vessels cannot lie at its side; they can only be moored at the front. The tide is very swift around the wharf and curves in. This wharf belongs to the United States.

The "new wharf" is one hundred and fifty feet front, lies about seventeen hundred feet westerly of the "old wharf," and is much less exposed to the winds and waves.

Hampton bar lies about two hundred and fifty yards westerly of the "new wharf."

Between the "old wharf" and the "new wharf" there is a beach or knoll of sand, which makes out, and between the "new wharf" and the Hampton bar there are opposing currents, which render it almost impossible for a vessel drifting, to make the inner harbor or hole.

At the time of the collision the Louisiana was in the service of the government of the United States as a transport, and, by the terms of the charter, the government was to furnish the fuel. The government had provided a supply of coal at Fortress Monroe, at the "old wharf." The coal yard was about twenty yards from the end of that wharf. They had no coal at the new wharf.

The Louisiana left the White House, on York river, on the 7th of June, laded with wounded and sick soldiers, and reached Old Point at a late hour the same evening, and laid in the stream until next day, when, by order of the quartermaster, she proceeded to the "old wharf" for the double purpose of taking in coal and of landing such of the soldiers as were too sick to be carried to Philadelphia and of taking in other soldiers in their place.

The orders were to lie at that wharf until further orders, and no order to change was given. Two gangs were constructed forward,

acres, defendant Beard, in his answer, disclaims any right; and as to the balance, about seventeen acres, claimed ownership in fee.

The verdict was in favor of defendant, Ellsworth, and against Beard and the other defendants. All the other defendants claimed under Beard.

The plaintiff makes title under the Catholic church, to the bishop of which, Joseph S. Alemany, a patent had been issued by the United States, embracing the land recovered.

The bill of exceptions shows that said patent, on its face, purported to have been issued in virtue of proceedings taken under the act of Congress passed March 3, 1851, "To Ascertain and Settle the Private Land Claims in the State of California."

The said patent and various mesne conveyances under it, constituted the only evidence of title to the premises offered by the plaintiff.

The defendants objected to receiving the said patent in evidence, on the alleged ground that it was void upon its face, inasmuch as it purported to be founded and issued upon a decree of the board of commissioners, after said decree had been removed by appeal to the said United States district court and because, the case still pending in United States district court, no patent could issue upon the decree of said land commissioners, until said court had either issued said appeal or, upon the evidence in the case, had adjudicated upon the title and confirmed said decree.

The recital upon the face of the patent showing, as defendants contend, that no dismissal of the appeal or final adjudication has ever been made, is as follows:

"And whereas, it further appears from a certified transcript filed in the General Land Of fice, that an appeal from the said decision of the Commissioner having been taken on behalf of the United States for the northern district of California, and the Attorney General of the United States having given notice that an appeal would be prosecuted in this case, the said district court, on the 16th day of March, 1857, at a stated term, ordered, adjudged and decreed that claimant have leave to proceed under the decree of the United States Land Commission heretofore rendered in his favor as a final decree."

In connection with this recital, defendants offered to show, by the records of said district court, that the only order made in said district court is the same as is recited as above quoted in the patent.

This evidence and objection was overruled, and defendant excepted.

The 10th section of the act to ascertain and settle private land claims in the state of California provides that when the case has been removed to the district court, that such court "shall proceed to render judgment upon the pleadings and evidence in the case, and upon such further evidence as may be taken by order of said court." This has never been done by said district court.

The only thing done was, upon a notice of the Attorney General being in some way brought to the knowledge of the court, to order that defendants have leave to proceed under the decree of the land commission.

The amendatory act of 1854 provides, in sub

stance, that if the Attorney General shall fail within six months after receiving a transcript to give notice that the appeal will be prosecuted the appeal shall be regarded as dismissed.

The defendants, for the purpose of destroying the effect of the patent, by showing that the commissioners had no jurisdiction to take cognizance or to confirm said claim offered to give in evidence the petition made by said Alemany in behalf of said church before said board, by which petition it is alleged it would appear that said petitioner "Did not set forth any claim or title to the same by virtue of any right or title derived from the Spanish or Mexican government."

The evidence so offered was rejected by the court, to which ruling the defendants excepted. This petition states, in substance:

1. That the Catholic church in California is the owner of sixteen different parcels of land enumerated therein, the tenth of which enumerations embraces the lands of the mission of San José-the land sued for in this action.

2. That, under the Spanish and Mexican law, the Catholic religion being that of all the people of Mexico, the common law of said church was adopted and recognized, as the rule for the government of the Catholic church and all its temporalities.

3. That by the laws of Mexico in force at the time of the cession of California to the United States, it was not necessary that any grant of land for ecclesiastical or church purposes should be evidenced by any deed or writing, public or private, etc.

4. That the Bishop and Clergy, under the laws of Spain and Mexico, were regarded and recognized by law as a body corporate, in whom was vested the management, disposition, and control of all church property.

5. That a diocesan convention held at Monterey in March, 1853, authorized the petitioner, Alemany, to petition the board for a confirmation of said land to him in trust for the Catholic church.

6. That said Alemany has been incorporated as a sole corporation under the statute of California, for the purpose of being enabled to hold said church property.

7. A list or description of said church property "held by the title and tenure aforesaid," showing how long and for what period of time the church had held "indisputable possession" of the same.

8. States that various fraudulent grants have been made to portions of said land by the former Mexican government of California.

9. Prayer for confirmation.

In connection with this petition, defendants offered to show, by said record of said Land Commissioners, that the claimant had no written or documentary title whatever to said land; but the entire right to the confirmation thereof by the board, and on which said board confirmed the same, was based exclusively upon verbal testimony, showing or tending to show, that the missionaries or priests of the Catholic church had, for many years, possessed and occupied the same; and showing, or tending to show, that the former governments of Spain and Mexico had respected and protected such possessions.

This evidence was excluded by the court, and the defendants excepted.

Mr. Crane, for plaintiffs in error: Upon the evidence thus offered and rejected the question arises, whether the board of commissioners had any jurisdiction to cognizance of said claim; in other words, had it any jurisdiction of the subject-matter?

If it had not, it must follow that its decree of confirmation was void, and the patent issued upon it was equally void.

The 8th section of the act of Congress before referred to provides that "each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to the commissioners, together with such documentary evidence and testimony of witnesses as said claimant relies upon in support of such claim," etc.

From the language quoted, it is quite clear that a petitioner under said act must present a "right or title derived from the Spanish or Mexican government."

The whole sum and substance of the case made by the Catholic church before the board, by its petition and evidence, was simply this and nothing more:

"We have peaceably and without question, and under government protection, possessed this land for a long series of years."

The testimony given before the board and upon which the decree of confirmation was based, as above stated, shows that "the entire right of the confirmation thereof, and on which the said board confirmed the same, was based exclusively upon verbal testimony, showing, or tending to show, that the missionaries or priests of the Catholic church had, for many years, possessed and occupied the same; and showing, or tending to show, that the governments of Spain and Mexico had respected and protected such possession."

Such permissive possession, by the missionaries or priests of the Catholic church, conferred upon the church no title whatever to the land thus occupied by them; and consequently, the fact that it was so occupied, had no tendency whatever to show any title whatever in the

church.

In 1856, an action of ejection was brought by Bobili, priest of the mission of Santa Clara against one Redman, to recover the orchard of said mission, founding his rights of recovery upon peaceable possession by the priests and missionaries under government protection. The case is very fully reported in the 6th California Reports, 225.

The plaintiff was nonsuited in the court be low. The court thus, in effect, holding that the possession of the land by the missionaries or priests had no tendency whatever to show title in them, and this decision was affirmed by the supreme court.

This court, in the case of The U. S. v. Cervantes, 18 How. 553, 15 L. ed. 484, held substantially the same opinion.

And the same principle was held in the U. S. v. Ritchie, 17 How. 525, 15 L. ed. 236.

The decree of confirmation, founded as it is upon subject-matter beyond and out of the jurisdiction of the board, is void; and the patent founded upon it is equally so.

We contend, therefore, that within the case of Patterson v. Winn, 11 Wheat. 380, the patent in this case is void, because it was issued upon a void decree of the board of commissioners, a decree not founded upon the kind of claim or title.

But, irrespective of any reference to the petition and proofs made to the board of commissioners, the patent is void on its face.

The patent recites that the bishop, Alemany, in behalf of and for the benefit of the Catholic church, petitioned for the confirmation to him and to his successors, of "certain church property in California," "to be held by him and them in trust for the religious purposes and uses to which the same has been respectively appropriated." "The same has been recognized as the property of the said church by the laws of Mexico in force at the time of the cession of California to the United States."

These recitals, extracted from the patent, show that the only claim of title on which the board could have acted and on which the title was confirmed was, that it was "church prop erty," which has been recognized by the laws of Mexico as such.

Now, all this, as matter of law and of public history, is false.

We pass now to the consideration of the title under which defendant Beard, and the other de fendant under him, claimed to hold the orchard and vineyard of eighteen acres; which, with proofs of ten years' possession under it, was offered in evidence and rejected by the court.

The grant so ordered and recited was one made and executed by Pio Pico, constitutional governor of California, to Juan Castenada, Luis Arenas, and Bonito Dias, bearing date June 20, 1846, and purporting to be a sale of said orchard and vineyard; i. e., the first tract of land described in the complaint, and the only tract which plaintiffs recovered, excepting, however, the church, cemetery and the priests' houses, and expressing the consideration of $3,000.

The grant offered recited that the governor was authorized previously by the departmental assembly "to alienate the missions, with the end of preventing their total ruin, and providing the government resurvey, which it requires to attend to its exigencies."

Defendants admitted that said grant had never been submitted, nor any claim founded thereon for confirmation by the board of commissioners; it was wholly unconfirmed and the grant is not found, and no copy or counterpart thereof, and no record of the same, or of any paper relating to said grant exists or is found among the archives of the former government of Mexico in California.

Defendants offered to prove that said grant was executed and delivered on the day it bears date, and that the consideration therein named ($3,000) was actually paid by the grantees therein named at the time of its execution, and that, by subsequent conveyances from the grantees above named, defendant Beard acquired entire title to said orchard and vineyard-entered into its possession in 1850, and has ever since been in possession under that title-and that the other defendants (except Ellsworth, who was acquitted) hold under said Beard.