The Yosemite Valley Case
ERROR to the Supreme Court of California; the case being thus:
On the 30th of June, 1864, Congress passed an act,  granting to the State of California the cleft, or gorge, in the Sierra Nevada Mountains, situated in the county of Mariposa in that State, Known as the Yosemite Valley, with its branches and spurs, in estimated length fifteen miles, and in width one mile, with the stipulation that the State should accept the grant upon the express condition that the premises should be held for public use, resort, and recreation, and should be inalienable for all time, except that leases for portions of the premises for periods not exceeding ten years might be made, the income derived therefrom to be expended in the preservation and improvement of the premises, or the roads leading thereto. The act provided that the boundaries of the grant should be established, at the cost of the State, by the Surveyor-General of the United States for California, whose official plat, when affirmed by the Commissioner of the General Land Office, should constitute the evidence of the locus, extent, and limits of the cleft, or gorge; and that the premises should be managed by the governor of the State, with eight other commissioners to be appointed by him, who should receive no compensation for their services.
By the same act Congress also granted to the State the tract of land embracing the grove of mammoth trees in Mariposa, known as 'the Mariposa Big Tree Grove,' the grant to be accepted upon similar conditions as the grant of the Yosemite Valley, and the premises to be held for like public use, resort, and recreation, and to be also inalienable for all time, but with the same privilege as to leases.
At the first session of the legislature of California, subsequently held, an act was passed by which the State accepted the grant thus made of the Yosemite Valley and Big Tree Grove, upon 'the conditions, reservations, and stipulations' contained in the act of Congress, and the governor and eight commissioners, who had previously been appointed by him during the recess of the legislature, were constituted a board of commissioners, 'with full power to manage and administer the grant made, and the trust created by the act of Congress,' and to make rules and regulations for the government, improvement, and preservation of the premises. The act also provided for the appointment by the commissioners of a guardian of the premises, and made it a penal offence in any one to commit wilfully any trespass thereon, to cut down or girdle the trees, to deface or injure the natural objects, to fire the wood or grass, or to destroy or injure any bridge or structure thereon, or other improvement.
On the 19th of May, 1864, six weeks previous to the passage of the act of Congress making the grant to the State, Hutchings entered the valley of the Yosemite and settled upon lands therein, with the intention, according to his declarations, and the findings of the court, to acquire the title to the same under the pre-emption laws of the United States. There were then on the premises a house, outhouses, and a fence inclosing about three acres. These improvements Hutchings purchased of the previous occupant, and he had ever since resided upon the premises, and had improved and cultivated them. The valley at the time was unsurveyed, and no other acts than the settlement thus made and continued had ever been done by him to acquire the title, unless soliciting the State and Congress to recognize his claim can be called such acts. At the time of his settlement, Hutchings was possessed of all the qualifications required of settlers under the pre-emption laws of the United States.
The principal one of these laws, and the one to which all subsequent acts refer, is the act of September 4th, 1841,  entitled 'An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights.' The tenth section of this act provides that any person of the class designated therein, who shall make a settlement upon the public lands, to which the Indian title has been extinguished, and which has been previously surveyed, and shall inhabit and improve the same, and shall erect a dwelling thereon, shall be authorized to enter with the register of the proper land office, by legal subdivisions, one quarter section of land, to include the residence of the claimant, upon paying to the United States the minimum price of said land, subject to certain specified exceptions, among which is that no lands included in any reservation by any treaty, law, or proclamation of the President, or reserved for salines, or for the support of schools, or for other purposes, shall be liable to entry. By other sections various provisions are enacted for the determination of conflicting claims, and the preservation of proofs of settlement and improvement. When all the prerequisites are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the register and receiver, and after a reasonable time to enable the land officers to ascertain whether there are any superior claims, and whether the claimant has complied, in all respects, with the law, he is entitled to a patent of the United States. 
By the sixth section of the act of Congress of March 3d, 1853, entitled 'An act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes,'  all the public lands of the United States in California, whether surveyed or unsurveyed, are made, with certain exceptions, subject to the above act of September 4th, 1841, 'with all the exceptions, conditions, and limitations therein,' with a proviso that when unsurveyed lands are claimed by pre-emption notice of the claim shall be filed within three months after the return of the plats of surveys to the land offices, and proof and payment shall be made prior to the day appointed by the President's proclamation for the commencement of the sale including such lands; the entry of such claims to be made by legal subdivisions according to the United States survey; and also that settlement on unsurveyed lands shall be authorized only where the settlement is made within one year after the passage of the act. This last limitation was subsequently extended by act of Congress two years from March 1st, 1854. 
In some of the States and Territories, by acts of Congress, settlemtnts are authorized on unsurveyed lands, and by the 7th section of the act of May 30th, 1862, 'to reduce the expenses of the survey and sale of the public lands of the United States,'  this privilege was extended to California.
Under this last act, Hutchings conceived that he had a right to settle upon the unsurveyed lands of the United States in the Yosemite Valley, and by the above acts of 1841 and 1853 could acquire and had acquired such a vested interest in the premises, to the extent of one hundred and sixty acres, that the United States could not transfer their title to the State, or dedicate the land to any public use. He therefore refused to surrender the possession to the commissioners appointed by the State. The defendant also refused to take a lease form the commissioners, though offered to him at a mere nominal rate for ten years. They accordingly, in November, 1867, brought the present action, alleging in their complaint that the State was owner in fee of the premises, and that they were entitled to the possession as commissioners of the State.
Pending the action, and on the 20th of February, 1868, the legislature of California passed an act granting to the defendant and one Lamon, each, one hundred and sixty acres of land in the Yosemite Valley; the part granted to the defendant containing his improvements and the premises in controversy. The second section of the act provided that the act should take effect from and after its ratification by Congress. It had never been thus ratified. A bill to ratify it passed the House of Representatives, but failed in the Senate.
The District Court of the State, in which the action was commenced, adjudged that the defendant was right in his view of his interest, and accordingly gave judgment in his favor. The Supreme Court of the State reversed the judgment, and ordered judgment for the possession of the premises in favor of the commissioners. The defendant now brought the case here for review.
Mr. G. W. Julian, for the plaintiff in error:
The question is, whether Congress, in granting the valley to the State of California, could divest the right of Hutchings under the pre-emption laws? In other words, had Hutchings such a vested right or interest, that Congress could not divest it by the grant of it to another party?
The case of Lytle v. The State of Arkansas  is in point. There Cloyes, the pre-emptor, selected his claim under the act of Congress of May 29th, 1830, authorizing and regulating pre-emptions. A later act, dated June 15th, 1832, granted to the Territory of Arkansas one thousand acres for a court-house and jail at Little Rock, including the tract claimed. Before this grant the pre-emption right of Cloyes had accrued under the act of 1830, and he had proved his right, and done everything he could do to perfect it. The court says:
'By this grant to Arkansas, Congress could not have intended to impair vested rights. The grants of the one thousand acres and of the other tracts must be so construed as not to interfere with the pre-emption of Cloyes.'
This case is referred to in the case of Barnard v. Ashley.  The court says:
'In Lytle's case we declared that the occupant was wrongfully deprived of his lawful rights of entry under the pre-emption laws, and the title set up under the selection of the governor of Arkansas was decreed to Cloyes, the claimant: this court holding his claim to the land to have been a legal right by virtue of the occupancy and cultivation, subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase-money.'
This, it will be seen, deals with the right of pre-emption as 'a legal right, by virtue of the occupancy and cultivation' of the pre-emptor, 'subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase-money.'
The court adds:
'The claim of pre-emption is not that shadowy thing which by some it is considered to be. Until sanctioned by law it has no existence as a substantive right; but when covered by the law, it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it.'
If this is true of Cloyes, it must be equally true of Hutchings, and he can only lose his claim 'by a failure to perform the conditions annexed to it,' when those conditions shall be tendered for his performance. In giving the opinion in Lytle v. The State of Arkansas, the court says:
'The adventurous pioneer, who is found in advance of our settlements, encounters many hardships, and not unfrequently dangers from savage incursions. He is generally poor, and it is fit that his enterprise should be rewarded by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres. That this is the national feeling, is shown by the course of legislation for many years.'This expresses the spirit and policy of the pre-emption laws, as they have been understood by the whole country till quite recently. The pioneer settler has been treated as the favorite of the law. The court says further:
'It is a well-established principle, that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case the pre-emptive right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently when he paid the money to the receiver, under subsequent acts the surveys being returned, he could do nothing more than offer to enter the land, which the register would not permit him to do This claim of pre-emption stands before us in a light not less favorable than it would have stood if Cloyes or his representatives had been permitted by the land officers to do what, in this respect, was offered to be done.'
Cloyes was held excused, on the ground that he had doen everything in his power to perfect his claim. Hutchings did the same. Cloyes had gone further in complying with the conditions of title than Hutchings has done, but each went as far as he could, and neither was in default. The good faith of the government is involved in both cases. There is no justice in the argument that the pre-emptor, after having made valuable improvements, and expended his money thereon, and complied with all the conditions of title which were within his power, may nevertheless be driven from his possession, his improvements confiscated, and the land conveyed to another, with notice of all the facts, who can hold it discharged from all the equities of the pre-emptor.
It is conceded on all hands, that if a pre-emptor, in addition to the other acts required of him, has paid for the land, he has acquired a vested right to it, and the government is bound to give him the title; but this concession yields the whole case. If the government is bound by its good faith to protect the settler at one stage of his claim, and as to one condition of title, it is bound to protect him at all stages, and as to every condition. The condition of final payment is no more vital or sacred, either to the settler or the government, than any of those which precede it. In the language already quoted, 'it is fit that his enterprise should be rewarded by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres;' but of what value is this 'privilege,' if the settler holds it at the mere will of the government, which may cut it off at any moment? And what must be thought of a government which holds its individual citizens to perfect good faith, by compelling them to perform their engagements, and yet violates its own faith to the settler, that he should have a home on its lands on specified conditions, with which he is ready and willing to comply? Nor is this question answered by saying that the settler has the option to abandon his pre-emption at any time, and that the government, therefore, should be equally free. The option of the pre-emptor is properly given by the law; for if he abandons his claim, the land, with the improvements made upon it, reverts to the government, which loses nothing. The transaction has been likened to a contract for the sale of lands, in which the owner retains the title as security for the purchase-money. On the other hand, if the settler, after spending his money and his time in improving his pre-emption, and making for himself a home, as in the present case, is driven away by the government, without any default on his part, he loses all unjustly, and is without remedy.
This case of Lytle v. The State of Arkansas deserves particular regard, not only because the principles laid down in it settle the case under consideration in favor of Hutchings, but because it sustains the true land policy of the nation, as universally understood, till within a very recent period.
The counsel on the other side will rely on Frisbie v. Whitney;  the only authority of any Federal court which can be cited in favor of the doctrine now set up as to the rights of settlers under the pre-emption laws. The case is in the face of the explicit language of the court in the case of Lytle v. The State of Arkansas, of which, however, it takes no notice. It is against the current of authorities on the question in the Federal courts, and against the whole spirit and policy of our land laws. It refers to the different sections of the pre-emption act of 1841, but takes no notice of the judicial constructions of the act in favor of the rights of the settler under that act. It cites in support of the points affirmed sundry opinions of attorneys-general and decisions of State courts, which at best are not binding and conclusive authorities in this court; while it fails to discuss or scarcely to refer to the strong cases decided in the Federal courts in favor of an opposite interpretation of the right of pre-emption.
The facts also of the case of Whitney v. Frisbie are peculiar; and the claim of Hutchings cannot be held as conclusively settled adversely, to our view, by that single case.
Mr. E. L. Goold, contra.
Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:
^1 13 Stat. at Large, 325.
^2 5 Stat. at Large, 453.
^3 See opinion of Mr. Justice Miller, 9 Wallace, 194.
^4 10 Stat. at Large, 246.
^5 Ib. 268.
^6 12 Id. 410.
^7 9 Howard, 333.
^8 18 Howard, 43.
^9 9 Wallace, 187.