The report upon a Spanish or Mexican grant by the Surveyor
General of New Mexico under the Act of July 22, 1854, § 8, 10 Stat.
308, which required such report to be "laid before Congress for
such action thereon as may be deemed just and proper, with a view
to confirm
bona fide grants," is no evidence of title or
right to possession.
In ejectment, the question whether the tract in dispute is
within the boundaries of a grant of public land is to be determined
by the jury on the evidence, as explained by the court.
When the description in the petition and grant of a Mexican
grant differs from the description in the act of possession, the
former mast prevail.
If, from the description and words in the petition and writ of
possession of a Mexican grant, the jury cannot definitely locate
the boundaries of the grant, they mast find for the defendant.
Whether the Nolan title has any validity without confirmation by
Congress,
quaere.
Whether the proviso in the Act of July 1, 1870, 16 Stat. 646,
that when the grants to Nolan to which it related "are so
confirmed, surveyed, and patented, they shall be held and taken to
be in full satisfaction of all further claims or demands against
the United States," was not intended to affect the entire claim of
Nolan for any grant of lands in New Mexico,
quaere.
Ejectment. Judgment for defendant. Plaintiff sued out this writ
of error. The case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action of ejectment brought by Pinkerton, the
plaintiff in error, to recover from the defendants, Julian Ledoux
and Epifanio Ledoux, the possession of a quarter section of land
claimed to be within the tract known as the "Nolan Grant" in Colfax
and Mora Counties in New Mexico, under
Page 129 U. S. 347
which grant the plaintiff claims title, and the main question in
the case is whether the Nolan grant extends far enough westerly and
northerly to embrace the lot in question. The action was commenced
in July, 1881, in Colfax County, and was afterwards removed to Mora
County. The property claimed is described in the declaration as
follows, to-wit:
"That certain tract and parcel of land lying and being situated
in the County of Colfax, in the Territory of New Mexico, and being
a portion of that larger tract of land commonly known as and called
the 'Nolan Grant,' and which said grant was, on or about the 18th
day of November, A.D. 1845, made by Manuel Armijo, then Governor of
the Territory of New Mexico, to Gervacio Nolan and two others,
being the same one hundred and sixty acres of land upon which the
said defendants now reside and occupy, and upon which they have a
dwelling house, wherein the said defendants, or one of them,
reside, situated on the northwest third of the above-mentioned
grant and bounded upon all sides by lands of the plaintiff."
The defendants pleaded not guilty, and three special pleas:
first, title in themselves by virtue of an entry and a grant from
the United States, under which they have erected and placed upon
the premises certain valuable improvements, consisting of dwelling
houses, barns, fences, ditches, etc., of the value of $5,000, which
value they give notice that they will prove at the trial if the
plaintiff shall maintain his title; secondly, that they built the
valuable improvements on the land before the commencement of the
action, and that the plaintiff cannot deprive them of possession
until such improvements are paid for; third, not guilty within ten
years.
The plaintiff took issue on those pleas, and entered a
nolle
prosequi as to Julian Ledoux. On the trial of the cause, the
plaintiff gave in evidence first the original Nolan grant,
consisting of the petition for a concession, dated November 15,
1845; the grant upon the same, endorsed thereon, and dated Santa
Fe, November 18, 1845, and the act of juridical possession, dated
November 30, 1845. The petition was made by Gervacio Nolan, Juan
Antonio Aragon, and Antonio Maria Lucero, soliciting a grant for a
piece of land in the little canyon of Red
Page 129 U. S. 348
River, bounded
"on the north by the possession of Messrs. Miranda and Beaubien;
on the south, one league in a direct line, including the Sapello
River, according to its current; on the west, another league from
Red River and its current, and on the southeast, the little hills
of Santa Clara with their range to the little canyon of the
Ocate."
The grant was made as desired, with the boundaries and limits
asked for. The act of juridical possession describes the boundaries
as follows:
"They are, on the north, the lands of Don Gaudalupe Miranda and
Don Carlos Beaubien; on the south, one league south of the Sapello
River, following the same range; on the east, one league east of
the Red River, with the same range of the river, and on the west,
the little canyon of Ocate, and give hundred varas west of the
little hills of Santa Clara in a direct line."
No plat or desino was shown to have been annexed to the act of
juridical possession. If there had been one, it was not given in
evidence.
It must be acknowledged that these descriptions are somewhat
vague. It would seem that from the northern boundary, adjoining
Miranda and Beaubien (or the Maxwell grant), to the southern
boundary along the Sapello River, the distance is about forty
miles, and if the grant extends westerly from the Red River far
enough to embrace the land in question, as claimed by the
plaintiff, the general width is from twenty-one to twenty-five
miles, the whole tract thus embracing an area of nearly one
thousand square miles, while, if it is confined to one league west
of the Red River, as would seem to be the meaning of the original
petition and grant, the quantity would still be over one hundred
square miles.
The plaintiff then gave in evidence, without objection of the
part of the defendant, the opinion of the surveyor general, dated
July 10, 1860, reporting on the grant in question and stating that
he believed the documents of title to be genuine and the grant to
be good and valid, and that the land embraced within the boundaries
set forth in the petition and juridical possession were severed
from the public domain, and that the title therefor was vested in
the heirs and legal representatives of Gervacio Nolan. He therefore
approved said title
Page 129 U. S. 349
and transmitted it for the action of Congress in accordance with
the eighth section of the Act of July 22, 1854, entitled "An act to
establish the offices of Surveyor General of New Mexico, etc.," 10
Stat. 308, c. 103. The act says:
"Which report shall be laid before Congress for such action
thereon as may be deemed just and proper, with a view to confirm
fide grants and give full effect to the treaty of 1848 between the
United States and Mexico."
It does not appear that this title was ever approved or
confirmed by Congress. The plaintiff then offered in evidence (but
the court rejected) the petition of the claimants of the grant,
addressed to the surveyor general, in order to show what boundaries
they claimed on that occasion. It is unnecessary to recite the
contents of this petition, as we think the court rightly rejected
it. The surveyor general, when referring in his report to the
boundaries set forth in the petition and juridical possession,
evidently referred to the boundaries contained in the original
petition of Nolan and his associates for the grant, and not to the
petition addressed to himself.
The plaintiff then introduced in evidence a map from the
surveyor general's office, which was not admitted as evidence of
the boundaries of the grant in question, nor to show any survey
thereof, but only to inform the jury as to the location and
position of natural objects and course of streams referred to in
other documents. The material part of the map was as follows,
to-wit:
Page 129 U. S. 350
image:a
It shows the Nolan grant to be about forty miles in length,
north and south, and twenty-five miles in width, extending across
the whole of Mora County and five or six miles into Colfax County
on the north and San Miguel county on the south. In the
northwestern part of the Nolan grant, as marked on the map, on
Ocate Creek, some sixteen miles west of the Red River, is shown a
ranch. On the west side of the grant, about midway between the
north and sough bounds, are situated the little hills of Santa
Clara. No proof was offered with regard to the authenticity or
accuracy of this map except that it was brought from the surveyor
general's office. Very little testimony was offered. Mary McKellar
testified that she lived in Colfax County in the ranch noted on the
map; that Ledoux's place (the land in question) was about a mile
and a half to the northeast of her ranch, two or three miles south
of Beaubien and Miranda's grant; that she knew where the stones
were put by Mr. Shaw, as the western boundary of the Nolan grant.
He was the surveyor sent up from Santa Fe to survey the land. Mr.
Ledoux's house is to the east of that line, as surveyed by Mr.
Shaw. She also testified about the little hills
Page 129 U. S. 351
of Santa Clara and the location of the canoncito of the Ocate.
Ledoux was examined to show that he was in possession of the lot
claimed in the suit. The plaintiff was examined to identify the
locality of the little hills of Santa Clara, and the canoncito of
the Ocate, and where a line would run, beginning 500 varas west of
the hills and running a straight line through the canoncito, and
that the defendant lives to the east of that line. He did not know
how many canoncitos were on the Ocate. There might be one near Red
River. He never was there. He also located the county line between
Mora and Colfax Counties. He had only known the country since
1875.
The defendant's counsel admitted that the plaintiff had acquired
all the title of the original grantees in and to the western half
of the grant to the north of the Santa Clara hills. The defendant
also introduced in evidence a map to show the various localities,
position of natural objects, streams, etc., which showed
substantially the same state of facts as the map introduced by the
plaintiff. This was all the evidence in the cause.
The plaintiff then requested the court to instruct the jury as
follows:
"That when a claim to a Spanish or Mexican grant has been
favorably reported by the Surveyor General of New Mexico, as the
one here in question has been, the grantees, or their heirs or
assigns, are entitled to the absolute and exclusive possession of
the land embraced within the limits of such grant, and in this case
it is admitted that the plaintiff has all the right, title, and
interest of the original grantees to all that portion of said grant
north of an east and west line running through the Serritos de
Santa Clara, and west of a northwest and southeast line half way
between the east and west boundaries of said grant."
And the court refused to give said instruction, and the
plaintiff excepted.
We think the refusal was right. The surveyor general's report is
no evidence of title or right to possession. His duties were
prescribed by the Act of July 22, 1854, before referred to, and
consisted merely in making inquiries and reporting to
Page 129 U. S. 352
Congress for its action. If Congress confirmed a title reported
favorably by him, it became a valid title; if not, not. So with
regard to the boundaries of a grant -- until his report was
confirmed by Congress, it had no effect to establish such
boundaries or anything else subservient to the title.
The judge charged the jury that they must be satisfied from a
preponderance of evidence that the defendant was within the
boundaries petitioned for by Nolan, and into which he was inducted
by the writ of possession, and if not so satisfied, they must find
the defendant not guilty; that they must determine what the
boundaries are from the words used in the petition and in the writ
of possession; that if, from the description thus given and from
the extraneous evidence furnished by plaintiff, they were not
convinced that the defendant was upon the land petitioned for and
given by writ of possession to the said Nolan, they must find
defendant not guilty. If, upon the other hand, they were satisfied
from all the evidence that the defendant was upon said land, they
must find him guilty. The judge then compared the words of boundary
and description contained in the petition with those contained in
the writ or act of possession, and added:
"If, upon comparing these descriptions, you cannot make them
agree, you must give the greater weight to the words and
descriptions of the petition, for the petition must control the
writ. In other words, the writ of possession must conform to the
petition, for the grant was made according to the boundaries prayed
for in the petition. You would not be justified in going 500 varas
west of Los Serritos de Santa Clara for the western boundary of the
grant unless you find some authority for doing so in the words and
descriptions of the petition. If, from the descriptions and words
in the petition and writ of possession, you find yourselves unable
definitely to locate the boundaries of the grant, you must find
defendant not guilty."
Then, at the request of the plaintiff, the judge charged:
"2. That if they believe from the evidence that the land of
which the defendant is in possession is within the limits of
the
Page 129 U. S. 353
grant, which has been favorably reported by the surveyor
general, they must find the defendant guilty."
He then charged as follows:
"3. The plaintiff can only recover, if at all, on the strength
of his own title or right of possession, and not on the defects of
any title or right of possession of defendant."
"4. The plaintiff must establish his right to the possession of
the land described in the petition or declaration by competent
evidence in order for him to recover."
"5. In order to find the defendant guilty, you must find that
the defendant did enter upon the land described in the petition or
declaration; that the same is within the boundaries of the portion
of the grant claimed by plaintiff, and that the defendant was, at
the time this suit was instituted, in possession of the same
wrongfully, withholding and detaining the same from the
plaintiff."
The plaintiff excepted to the giving of each of said
instructions, with the exception of the one numbered 2.
The jury, under this charge, rendered a verdict for the
defendant, and judgment was entered accordingly, whereupon the
plaintiff brought this writ of error. The assignment of errors
corresponds to the exceptions. The plaintiff in error, in his
brief, discusses two points upon which he insists upon a reversal
of the judgment: (1) that there is nothing in the evidence to
support the verdict; (2) that the instructions of the court did not
properly submit to the jury the only point to be determined,
to-wit, was the defendant within the boundaries of the portion of
the grant claimed by the plaintiff?
We do not see how the judge who tried the cause could have more
clearly stated than he did, in his charge, the real question to be
determined by the jury, namely the question whether the land in
dispute was included within the boundaries of the grant, as applied
to and sought for in the actual condition of the country, its
surface and mountains and streams. In order to locate a grant of
land upon the surface of the earth, there must be evidence to show
that the place of location agrees with the description in the
grant, and that
Page 129 U. S. 354
evidence is for the jury. The plaintiff alleges that it was
error in the judge to leave this question to the jury. We think
not. The judge may properly explain to the jury the effect of
different portions of the evidence, and, of course, if the jury
find a verdict against plain evidence, their verdict will be set
aside.
The plaintiff complains, however, that the judge laid down an
erroneous rule in charging that if the description contained in the
petition and grant differed from that contained in the act of
possession, the former must prevail, because it was the grant which
conferred title. We think there was no error in this charge. If the
officer assigned to deliver possession does not follow the grant,
his acts are not valid. Where the original grant does not locate
the subject of the grant, as where a certain number of square
leagues is granted to be located within a certain district, the
delivery of possession within the district renders the title
complete, and defines the location of the grant.
The cases referred to by the plaintiff were grants of specific
ranches, plantations, or places, having well known names, and the
boundaries designated in the acts of possession ascertained their
actual extent and limits, and hence were controlling when the
question of title arose. "The juridical possession was conclusive
as to the boundaries and extent of the land granted."
United States v.
Pico, 5 Wall. 536,
72 U. S.
540.
The instruction given that if, from the descriptions and words
in the petition and writ of possession, the jury could not
definitely locate the boundaries of the grant, they must find for
the defendant is supported by several explicit authorities. In
Carpentier v.
Montgomery, 13 Wall. 480, it was held that where
one of the boundaries was so uncertain that it could not be defined
or designated, the grant was void. The same rule was followed in
Scull v. United States, 98 U. S. 410, where
the description was so vague that, as sought to be interpreted by
the claimant, it would embrace over 7,000,000 of acres, and it was
evident to the court that the surveyor was never actually on the
ground, and was mistaken as to the locality of the natural objects
on which he relied for description. The claim was rejected for
uncertainty of description.
Page 129 U. S. 355
We see nothing in the charge of which the plaintiff can properly
complain.
This case seems to have been very perfunctorily tried and
discussed. There is a question which may be entitled to much
consideration, whether the Nolan title has any validity at all
without confirmation by Congress. The Act of July 22, 1854, before
referred to, seems to imply that this was necessary. There is also
another act of Congress which may have a bearing on the case. We
refer to the Act of July 1, 1870, 16 Stat. 646, by which another
grant to Nolan was confirmed to the extent of 11 leagues. After
various provisions with regard to the exterior lines of those 11
leagues, the fourth section declares
"that upon the adjustment of said claim of the heirs of Gervacio
Nolan according to the provisions of this act, it shall be the duty
of the surveyor general of the district to furnish properly
approved plats to said claimants,"
etc.,
"provided that when said lands are so confirmed, surveyed, and
patented, they shall be held and taken to be in full satisfaction
of all further claims or demands against the United States."
Whether this provision was not intended to affect the entire
claim of Nolan for any grant of lands in New Mexico may be a
serious question. Without expressing any opinion on the subject, it
suffices to say that we see no error in the judgment of the Supreme
Court of New Mexico, and it is therefore
Affirmed.