ERROR to the Circuit Court for the Northern District of California.
Mumford-plaintiff both below and in error here-brought ejectment against Wardwell for a 'one hundred-vara lot,' No. 186 on the official map of San Francisco. Plea, possession as owner under a good title. The record showed that the case was set down on that issue for trial August 26th, 1863, when the jury found a verdict in these words:
J. E. Mumford v. C. Otis Wardwell, United States Circuit Court, Northern District of California.
We, the jury, find a verdict for the plaintiff, subject to the opinion of the court.
GEORGE AMERAGE, Foreman.
SAN FRANCISCO, August 26th, 1863.
The finding set forth no case, nor had any been previously stated. This verdict was entered of record; but no notice apparently taken afterwards of it. Subsequently, on the 29th August, by consent of counsel, it was ordered that the further hearing of the cause should be set down for September 5th. The record went on:
'And afterwards, to wit, on the 5th day of September A. D. 1863, the following special verdict, by stipulation of counsel, was duly entered of record in said cause, to wit:
SPECIAL VERDICT.
In the Circuit Court of the United States for the Northern District of California.
JAMES E. MUMFORD, Plaintiff, v. CHAS. O. WARDWELL, Defendant.
AT COMMON LAW.
And now, on this 26th day of August, A. D. 1863, come the parties aforesaid by their respective attorneys, and thereupon come a jury, to wit: [the names of the jurors were here given], twelve good and lawful men, who, being duly elected, tried, and sworn, the issues herein joined between said parties well and truly to try, and a true verdict to render according to the evidence, after hearing the evidence of said parties respectively, the jurors aforesaid upon their oaths aforesaid to say;'
Following this was set forth the titles of the respective parties to the lot in controversy. The document ended thus, the signatures of the respective counsel being appended at the end:
'And the jurors aforesaid, upon their oaths aforesaid, do further say that they find a general verdict for the plaintiff, subject to the opinion of the court upon the foregoing recited facts.
'The above is agreed to as a special verdict in this cause.'
It will be observed that in what was here agreed to 'as a special verdict,' there was no such conclusion as is technically usual in special verdict actually found by a jury; that is to say, the finding did not, after presenting the case, refer the decision of it to the court, with the conditional and alternative conclusion, that if the court should be of the opinion, in view of the facts, that the plaintiff was entitled to recover, then they found for the plaintiff, but if otherwise, thy found for the defendant.
But this matter was not the subject of remark either by counsel here or apparently by them in the court below; and the paper agreed to was treated everywhere as a case agreed on and stated for the opinion of the court.
The title of the respective parties as set forth in the case as settled was as follows, that of the defendant, for more clearness, being here stated first:
1. Defendant's title. The lot was what was called a water-lot; that is to say, formed part of certain flats, situated below the high-water mark of San Francisco Bay. The conquest of Mexico, in 1846, having put the whole region about San Francisco into the control of the military authorities of the United States, General Kearney, then acting as Military Governor of California, by deed reciting that he was acting in virtue of authority vested in him by the President of the United States, conveyed these flats (with some unimportant reservations) to the town of San Francisco; a proviso being attached to the grant that they should be divided into lots, and after three months' notice sold at auction to the highest bidder for the benefit of the town. On the 1st day of December, 1849, the ayuntamiento or town council of San Francisco ordained:
'That two hundred fifth-vara town lots be sold at public auction on Friday, the 10th instant.'