Harvey v. Barker

McFARLAND, J., dissenting.

—I dissent. In addition to-what is said in the dissenting opinion of the chief justice I thinlc that the privileges of the Indians would have been preserved even if, in the grant to Warner, there had been no express words of reservation which could be construed as including them—if there had been no express reservation whatever. I think that. *279 under the general law applicable to the subject—written and unwritten—running back through Mexican and Spanish dominion to the sixteenth century, the legal title to the lands like those in question here always passed subject to the right of the Indians to occupy them as they had been accustomed to “in such manner as that they shall not stand in need of the necessaries of life.” (See Byrne v. Alas, 74 Cal. 628, and the authorities there cited.) I do not think that they were required to present their claims to the land commission, or that they are even to be charged with knowing that there was such a commission, or with a knowledge of the law generally. They are mere wards of the nation, and it is ’to be presumed that the nation has always recognized and protected their customary rights, and that all its grants are made with the understanding that the grantees know those rights, and take subject to them.

Temple, J., concurred in the last dissenting opinion. ,

Rehearing denied.