It is the usage of the civilized nations of the world, when
territory is ceded, to stipulate for the property of its
inhabitants.
The courts of the United States are bound to take judicial
notice of the laws and regulations of Mexico prior to the cessions
under the Treaty of Guadalupe Hidalgo and the Treaty of December
30, 1853.
It is the general rule of American law that a grant will be
presumed upon proof of an adverse, exclusive, and uninterrupted
possession for twenty years, and such rule will be applied as a
presumptio juris et de jure whenever, by possibility, a
right may be acquired in any manner known to the law, including
occupations of claimants under alleged Mexican grants prior to the
said treaties.
On the facts, the Court decides that the land in controversy in
this case was the property of the claimants before the treaties
with Mexico, and consequently that its protection is guaranteed as
well by those treaties as by the law of nations.
Page 159 U. S. 453
This is an appeal on behalf of the United States from a decree
of the Court of Private Land Claims, made on the 26th day of
September, 1892, in the matter of the claim for certain lands in
Valencia County, New Mexico, commonly called the "Cubero Land
Grant."
The case as presented in the pleadings is as follows:
It is claimed by the petitioners that in the year 1833, the
Republic of Mexico, by Francisco Sarricino, the Governor of the
Territory of New Mexico, granted to Juan Chaves and about sixty
others, "and to the Town of Cubero, whose establishment and
incorporation were intended and declared by the terms of said
grant," a tract of land now situated in the County of Valencia, New
Mexico
The description of the land as claimed is set out in the
petition, and is there said to contain about eleven square
leagues.
They allege the loss and destruction of said grant and the
testimonio as a reason for not being able to state accurately its
date or the description of the land or the act of possession.
They allege that the chief alcalde of that jurisdiction did,
during the same year, put them in possession, but they are unable
to state who was the alcalde or what the date was of such delivery
of possession.
That the petitioners are the heirs and legal representatives of
the original grantees, except Juan Antonio Duran, who is the only
survivor of such grantees.
That they are now in possession and occupation of said land,
claiming under said grant.
That said grant was unconditional, except so far as the
colonization law imposed conditions.
They charge that, preliminarily to the making of the said grant,
the said governor required the parties petitioning first to
purchase certain improvements which had been made upon the said
land by one Francisco Baca, a Navajo Indian chief, who had been
residing on the tract by permission of the government.
That they did purchase of said Indian chief the said
improvements, which said Indian chief relinquished to them and
vacated the land.
Page 159 U. S. 454
That, said preliminary conditions having been performed, the
governor and chief alcalde delivered to the grantees a duplicate of
the granting decree and of the act of juridical possession, and
placed the originals of said decree and act in the Mexican archives
at Santa Fe.
They allege that said originals, although once in the custody of
the defendant (the United States) after the solemnization of the
treaty of Guadalupe Hidalgo, were wrongfully and negligently
destroyed or lost by the defendant.
That the duplicates were entrusted by the grantees to Juan
Chaves, one of their number, and he kept them until his death in
1846. Since his death, they have not been found, and plaintiffs
aver that they were stolen and carried away and destroyed or lost
by one Vicente Margarito Hernandez.
They charge that, the original grant papers having been lost, a
controversy arose between the petitioners and the pueblo of Laguna
in the year 1841, and in that controversy the boundary line on the
side next to Laguna was fixed and adjusted.
The allege that the grant was made to the inhabitants of Cubero
at that time for the purpose of establishing a town thereon, and
that since that time they have been in possession of the whole of
the ground.
The answer of the United States puts in issue all of the
allegations of the petition.
It denies that there was ever a grant made by the governor of
New Mexico to the alleged grantees, as alleged in the petition.
It denies that the alleged testimonio of said grant was ever
lost or destroyed, and that the possession of said plaintiffs or
any of them was derived by the act of an official of the Mexican
government authorized by the laws of Mexico to grant or deliver the
same.
It denies that the duplicate of the alleged granting decree and
act of possession was ever delivered by the governor or chief
alcalde to the alleged grantees or was ever placed by the governor
among the Mexican archives of Santa Fe.
It avers that if a grant was made to the alleged grantees
Page 159 U. S. 455
for the purpose of establishing a town, the conditions imposed
by law have never been complied with, and therefore they are not
entitled to confirmation under the act creating the Court of
Private Land Claims.
That a large portion of said grant had been disposed of by the
United States to the Atlantic and Pacific Railroad Company, and
that it was a necessary party defendant, and a misjoinder of
parties was pleaded.
On August 29, 1892, the court entered a decree confirming the
grant, and denying the right of the Atlantic and Pacific Railroad
Company to intervene, except so far as its right of way was
concerned, which right was admitted by the plaintiffs, from which
decree an appeal was taken by the United States.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is provided in the ninth section of the Act of March 3, 1891,
establishing the Court of Private Land Claims, that upon any appeal
from such court,
"the supreme court shall retry the cause, as well the issues of
fact as or law, and may cause testimony to be taken in addition to
that given in the court below, and may amend the record of the
proceedings below as truth and justice may require, and on such
retrial and hearing every question shall be open."
The present case has been submitted to us on the record of the
court below, containing the pleadings, the evidence, and the
decree.
The decree finds as follows:
"That the complainants are citizens of the United States and
residents of the County of Valencia, in the Territory of New
Mexico; that in the year 1833, a colony grant of the lands in
controversy was made by the proper authority of the Republic of
Mexico, through the Governor of the Territory of New Mexico,
Francisco Sarricino,
Page 159 U. S. 456
to Juan Chaves and sixty-one others, for the purpose of
colonizing the place of Cubero, and that said colonization was had
and made; that the title to the land in controversy in this cause
is derived from the Republic of Mexico, and was complete and
perfect at the date when the United States acquired sovereignty in
the Territory of New Mexico, within which this land was situated;
that the said complainants are in the possession of the said land
embraced within the calls of the said grant, and claim the same;
that they and their ancestors and predecessors in right have been
in the possession of the same since the issuance of the grant by
the Mexican government, and that complainants have such a claim and
interest in the land as gives them a right to apply to the court
for a confirmation of their title; that the lands claimed embraced
an area of about 16,000 acres, but the exact area cannot be stated,
as the same has never been surveyed; that the intervener, the
Atlantic and Pacific Railroad Company, has no right in or to the
real estate and lands included within said grant except to its
right of way for its railroad track as now laid down and operated
through and across said lands, which right of way was conceded to
said railroad company by said complainants on the trial of the
cause."
If these findings of fact are sustained by the evidence in the
record, the decree of the court below adjudging the title and claim
of the complainants to be good and valid and confirming the same in
them, their heirs, successors, and assigns, should be affirmed.
The act provides that all proceedings subsequent to the petition
shall be
"conducted as near as may be according to the practice of courts
of equity of the United States; . . . and that, by a final decree,
the court shall settle and determine the question of the validity
of the title and the boundaries of the grant or claim presented for
adjudication according to the law of nations, the stipulations of
the treaty between the United States and the Republic of Mexico in
1848, and the treaty between the same powers in 1853, and the laws
and ordinances of the government from which it is alleged to have
been derived. "
Page 159 U. S. 457
The first rule of decision thus laid down by Congress for our
guidance is that we are to have regard to the law of nations, and
as to this it is sufficient to say that it is the usage of the
civilized nations of the world, when territory is ceded, to
stipulate for the property of its inhabitants.
Henderson v.
Poindexter, 12 Wheat. 535;
United
States v. Arredondo, 6 Pet. 712;
United
States v. Ritchie, 17 How. 525.
We adopt the language of Chief Justice Marshall in the case of
United States v.
Percheman, 7 Pet. 51,
32 U. S. 86, as
follows:
"It may not be unworthy of remark that it is very unusual, even
in cases of conquest, for the conqueror to do more than to displace
the sovereign and assume dominion over the country. The modern
usage of nations, which has become law, would be violated, that
sense of justice and of right which is acknowledged and felt by the
whole civilized world would be outraged, if private property should
be generally confiscated and private rights annulled. The people
change their allegiance; their relation to their ancient sovereign
is dissolved; but their relations to each other and their rights of
property remain undisturbed. If this be the modern rule, even in
cases of conquest, who can doubt its application to the case of an
amicable cession of territory?"
We are next directed to consider the stipulations of the
treaties between the two governments. The provisions of the treaty
of 1848 relevant to the present subject are contained in its eighth
article, 9 Stat. 929, and we find that they declare that
"Mexicans now established in territories previously belonging to
Mexico, and which remain for the future within the limits of the
United States as defined by the present treaty, shall be free to
continue where they now reside, . . . retaining the property which
they possess in said territories. . . . In the said territories,
property of every kind now belonging to Mexicans not established
there shall be inviolably respected. . . . The present owners, the
heirs of these, and all Mexicans who may hereafter acquire said
property by contract shall enjoy with respect to it guaranties
equally ample as if the same belonged to citizens of the United
States."
And in the ninth section, it is further provided
Page 159 U. S. 458
that, pending the admission of such territories into the Union
of the United States, Mexicans who reside therein
"shall be maintained and protected in the free enjoyment of
their liberty and property, and secured in the free exercise of
their religion without restriction."
The sixth article of the treaty of 1853, 10 Stat. 1035, provides
that
"no grants of land within the territory ceded by the first
article of this treaty bearing date subsequent to the day
[twenty-fifth of September] when the minister and subscriber to
this treaty on the part of the United States proposed to the
government of Mexico to terminate the question of boundary will be
considered valid or be recognized by the United States, nor will
any grants previously made be respected or be considered as
obligatory which have not been located and duly recorded in the
archives of Mexico."
With such articles contained in the treaties and their meaning
submitted to our consideration, we have no difficulty in holding
that the question is whether the land in controversy was the
property of the claimants before the treaties, and, if so, that its
protection is guarantied by the treaties as well as the law of
nations.
The next guide prescribed by the act is a regard for "the laws
and ordinances of the government from which it [the grant] is
alleged to have been derived."
In this part of our inquiry, we shall draw our information from
a treatise on the Spanish and American land laws, recently
published by Matthew G. Reynolds, the United States Attorney for
the Court of Private Land Claims, and which is referred to in the
brief filed for the government in the present case. From this we
learn that the General Constituent Congress of Mexico passed, on
August 18, 1824, a colonization law providing for the colonization
of the territories of the republic; that New Mexico, at the date of
the passage of this law, was a territory, and so continued until
December 30, 1836, when it became a department.
A code of colonization was adopted on November 21, 1828, which
contains regulations for the colonization of the territories
Page 159 U. S. 459
whereby the political chiefs or governors of the territories are
authorized to grant the public lands of their respective
territories to contractors, families, or private persons, Mexicans
or foreigners, who may apply for them, and are directed, when a
grant is definitely made, to sign and give a document to serve as a
title to the party in interest, it being stated therein that the
grant is made in entire conformity with the provisions of the law,
in virtue of which the possession shall be given.
A question is raised in the brief for the government whether the
courts of the United States can take judicial notice of the laws
and regulations of Mexico pertaining to grants made prior to the
cession. It was said in
Fremont v. United
States, 17 How. 557, referring to a similar
question under the treaties with Spain ceding territories to the
United States:
"If is proper to remark that the laws of these territories under
which titles were claimed were never treated by the court as
foreign laws, to be decided as a question of fact. It was always
held that the court was bound judicially to notice them, as much so
as the laws of a State of the Union. In doing this, however, it was
undoubtedly often necessary to inquire into official customs and
forms and usages."
The same position was asserted in the case of
United States
v. Perot, 98 U. S. 428.
It is indeed suggested that the seventh section of the act
establishing the Court of Private Land Claims, in respect that it
provides that "the decree shall in all cases refer to the treaty,
law, or ordinance under which such claim is confirmed or rejected,"
implies a contrary view. We do not so regard that provision, nor do
we perceive in any features of the act an intention on the part of
Congress to restrict the powers of the court recognized by the
previous decisions.
We shall now proceed to apply these principles to the facts of
the case.
It is conceded by the government's brief that the claimants or
their ancestors did come to Cubero in 1833, and were put in
possession of the lands claimed, and have held them ever since.
Page 159 U. S. 460
But it is contended that there is no sufficient evidence that
the title asserted by the claimants was lawfully and regularly
derived from the government of Spain or Mexico, or from any of the
states of the Republic of Mexico having lawful authority to make
grants of land, as prescribed by section 13 of the act, and it is
said that the only title and interest acquired by the claimants was
purchased by these settlers from one Francisco Baca, a Navajo
Indian.
We have examined the evidence on this point contained in the
record, and are of opinion that it warranted the finding of the
court below that the complainants' title was derived from the
Republic of Mexico, and was complete and perfect at the date when
the United States acquired sovereignty in the Territory of New
Mexico, within which the land was situated.
Without undertaking to give the evidence in full, we shall
briefly state its principal features.
Penito Baca, a witness on behalf of the claimants, testified
that he was eighty years old, and had resided on these lands since
the year 1833; that the settlers were put in possession by the
government; that Sarricino was governor, who held the government at
Santa Fe. He enumerated by name a number of the colonists, and
stated that there was in their possession a written grant from the
governor, which he had heard read and had seen; that this writing,
which was in the custody of Juan Chaves, could not be found after
the death of the latter. He also described the boundaries of the
grant, and testified that portions of these lands were distributed
among the settlers, twenty-five varas to each, and that the
remaining land was given for the common use for the stock of
all.
Jose Antonio Duran testified that he was ninety-two years of
age; that he was one of the settlers of the Town of Cubero in the
year 1833, and had there resided ever since; that their title was a
written title, made to them by Francisco Sarricino, the governor.
He gave a description of the boundaries of the land and the names
of some of the original settlers of 1833. He stated that Don Juan
Chaves and Don Juan Garcia, as commissioners, put them in
possession. The witness could read and write Spanish, and he had
seen and read the written title
Page 159 U. S. 461
from the governor, Sarricino. He testified that when Juan Chaves
died, the title paper was missing, and that it was currently
reported that one Vicente Margarito Hernandez, who had been his
secretary, had carried off the testimonio or official copy of the
grant; that since 1833, the settlers and their children have lived
upon and cultivated the land. He further stated that when they
applied for the grant from the government, an Indian, named
Francisco Baca, was on the land, and that it was made a condition
that the Indian would abandon it.
Pablo Pino was a witness, eighty-two years of age, and had lived
in the Town of Cubero for forty-eight years, where he had purchased
some land from the original settlers, in possession of which he had
remained ever since.
Pedro Molina, eighty years of age, was one of the original
settlers in 1833, and had lived with his children on these lands
and cultivated them ever since.
Juan Duran had lived in Cubero since 1833. His father and
grandfather were original settlers. He had heard the original grant
read. The papers were in the possession of and read by Juan Garcia
and one Juan Chaves, judge and commissioner. That it was one of the
conditions before they were allowed to settle that they should buy
the claim of Francisco Baca, the Navajo Indian. This witness
testified to the tradition that the title papers of the grant had
been stolen or carried away by Vicente Margarito Hernandez. The
witness had been a school teacher for many years, could read and
write Spanish, and had seen the original testimonio of the grant,
and heard it read, and testified that it was given by the governor
Francisco Sarricino.
The record likewise contains translations of documents found in
the archives of Valencia County, pertaining to a dispute between
the Town of Cubero and the pueblo of Laguna as to boundaries. These
papers were dated in 1835, 1840, and 1841, and disclose a
settlement of the dispute, certified to by Jose Francisco Chaves of
Baca, Judge Commissioner in the Second District of the Department
of New Mexico. In this certificate, the lands within Cubero are
stated to have been purchased from Francisco Baca, the Navajo.
Page 159 U. S. 462
A number of original deeds were likewise in evidence, variously
dated from 1841 to 1856, showing sales of parcels of these lands;
also a petition by the people of the Town of Cubero to the Surveyor
General of the Territory of New Mexico, dated April 2, 1856,
stating that they were in possession under authority of a grant
from the Mexican government about the year 1834, that the original
documents were lost, and asking that their lands should be
surveyed, etc.
The claimants likewise proved, by quite a number of witnesses,
residents of the Territory of New Mexico, that about 1870, a
considerable portion of the archives of that territory, containing
documents relating to Mexican grants made to lands within that
territory, were lost; that these papers were deposited in the
territorial library, where some of the witnesses had seen them in
1868 and 1869; that they were sold as waste papers by the
librarian, Bond, and were scattered through the country. Many of
these were Spanish documents, and pertained to grants of land. When
the governor of the territory heard that there was complaint made
by the people of this treatment of public archives, he made efforts
to get them returned, but the evidence is clear that many of them
were destroyed and lost. The claimants also called as a witness
William M. Tipton, who had been employed for several years in the
office of the Surveyor General of the Territory of New Mexico and
had charge of the Spanish and Mexican archives. He testified that
the books and records in that office purporting to contain the
registry of land grants made by the Spanish and Mexican governments
prior to the time the government of the United States took charge
are in a disconnected, fragmentary form, and that one of the most
important books, containing a record of grants made by the Spanish
and Mexican governments, is missing, and is supposed to have been
stolen. He also stated that there was not in the surveyor general's
office any index of the dates, list of original expedientes, or
warrants of title to Spanish and Mexican grants.
This evidence was adduced to sustain the allegation in the
petition that the governor and chief alcalde delivered to the
settlers a duplicate of the granting decree and of the act of
Page 159 U. S. 463
juridical possession of the chief alcalde in the premises, and
placed the originals of said decree and act in the Mexican archives
at Santa Fe, and that said originals, with a great part of other
valuable archives of the Mexican government, although once in the
custody of the United States after the treaty of Guadalupe Hidalgo,
were negligently destroyed or lost.
The only evidence adduced by the United States was the testimony
of Ira M. Bond, who had acted as territorial librarian in 1869 and
1870, and who testified that, under instructions of Governor Pile,
he had sold and disposed of a lot of the old records, supposing
them to be of no value; that this created quite a talk in the town;
that finally the governor instructed him to recover them back, and
that most, but not all, of them were recovered. This witness said
that he could not read Spanish, that these documents were in that
language, and that there might have been grants among them.
In view of this large body of uncontradicted evidence, we think
that the court below was plainly right in finding that the
claimants had satisfactorily sustained the allegations of their
petition. Not only was there evidence of the existence of an
original grant by the government of New Mexico and of the loss of
original records sufficient to justify the introduction of
secondary evidence, but there is the weighty fact that for nearly
sixty years the claimants and their ancestors have been in the
undisturbed possession and enjoyment of this tract of land. The
counsel for the government, indeed, contend that the Court of
Private Land Claims and this Court have no power to presume a grant
upon proof of long continued possession only; that their power is
confined to confirming grants lawfully and regularly derived from
Spain and Mexico.
It is scarcely necessary for us to consider such a question,
because, as we have seen, there is ample evidence from which to
find that these settlers were put in juridical possession under a
grant from the Governor of New Mexico, who, under the laws then in
force, had authority to make the grant. However, we do not wish to
be understood as undervaluing the fact of a possession so long and
uninterrupted as disclosed
Page 159 U. S. 464
in this case. Without going at length into the subject, it may
be safely said that, by the weight of authority as well as the
preponderance of opinion, it is the general rule of American law
that a grant will be presumed upon proof of an adverse, exclusive,
and uninterrupted possession for twenty years, and that such rule
will be applied as a
presumptio juris et de jure wherever,
by possibility, a right may be acquired in any manner known to the
law. 1 Greenleaf Ev. (12th ed.) § 17;
Ricard
v. Williams, 7 Wheat. 109;
Coolidge v.
Learned, 8 Pick. 504.
Nothing, it is true, can be claimed by prescription which owes
its origin to, and can only be had by, matter of record; but lapse
of time, accompanied by acts done or other circumstances, may
warrant the jury in presuming a grant or title by record. Thus
also, though lapse of time does not, of itself, furnish a
conclusive bar to the title of the sovereign, agreeably to the
maxim
nullum tempus occurrit regi, yet if the adverse
claim could have a legal commencement, juries are advised or
instructed to presume such commencement after many years of
uninterrupted possession or enjoyment. Accordingly, royal grants
have been thus found by the jury after an indefinitely long
continued peaceful enjoyment accompanied by the usual acts of
ownership. 1 Greenleaf Ev. § 45.
The principle upon which this doctrine rests is one of general
jurisprudence, and is recognized in the Roman law and the codes
founded thereon. Best's Principles of Evidence § 366, and was
therefore a feature of the Mexican law at the time of the
cession.
Finally, the rule of the law of nations that private property in
territory ceded by one nation to another, when held by a title
vested before the act of cession, should be respected, the express
provisions to that effect contained in the treaty between Mexico
and the United States; the evidence of the fact of a grant, legal
under the forms of Mexican law, and of a juridical possession given
thereunder, and the strong presumption growing out of an exclusive
and uninterrupted possession and enjoyment of more than half a
century, bring us to concur in the decree of the court below.
Page 159 U. S. 465
The objection that the Atlantic and Pacific Railroad Company, as
grantee from the United States of a part of the tract in question,
was a necessary party defendant, has not been pressed in argument,
and we only notice it to say that, under the provisions of the
fifth section of this act, the private rights of third parties are
not affected by any proceeding or decree under said act.
The decree of the court below is
Affirmed.