In order to the confirmation of a Mexican grant by the Court of
Private Land Claims, it must appear not only that the title was
lawfully and regularly derived, but that, if the grant were not
complete and perfect, the claimant could, by right and not by
grace, have demanded that it should be made perfect by the former
government had the territory not been acquired by the United
States, and by the treaty no grant could be considered obligatory
which had not been theretofore located.
The grant under which the plaintiff in error claims was a grant
of a specific quantity of land, to-wit, seven and a half sitios and
two scant caballerios within exterior boundaries, and not a grant
of the entire eighteen leagues contained within those exterior
boundaries, and as location was a prerequisite to any action by the
Court of Private Land Claims, and as the grant had not been located
at the date of the Gadsden Treaty, it cannot be confirmed.
This was a proceeding on behalf of the United States, instituted
by direction of the Attorney General in the Court of Private Land
Claims, under the third clause of section 8 of the Act of March 3,
1891, 26 Stat. 854, c. 539. The petition alleged that defendants
were asserting a claim to the premises in dispute under an alleged
Mexican land grant by virtue of the treaty of December 30, 1853,
known as the "Gadsden Purchase," and that the title of defendants,
and each of them, was open to question in several particulars set
out in the petition. And it was prayed that the defendants be
notified to
Page 161 U. S. 209
show cause why the alleged grant should not be declared null and
void, and that the title to said land might be quieted and forever
settled, and for general relief.
Separate answers were filed by Santiago Ainsa, administrator of
Frank Ely, and by Juan Pedro Camou and George H. Howard. Defendants
admitted that they claimed the land as tenants in common, and each
set up and pleaded his title, and asked confirmation of his claim.
The New Mexico & Arizona Railroad Company claimed its right of
way under them.
The answer of Camou and Howard stated, among other things:
"That, as appears and is shown from and in the said official
survey, the minutes whereof are contained in the aforesaid
testimonio, the form of the same was nearly square, the northern
and southern boundaries conforming, of necessity, angularly with
these of the Casita rancho and the Tumacacori and Calabazas tracts;
that within the bounds, natural objects, and monuments set forth
and established by the said official survey, there is an excess of
about _____, more or less, some 4,631 hectaras, 21 aras, and 47
centiaras, or about _____ of such said excess, surplus, or
demasias, being in that portion of grant lying and being in the
State of Sonora, all of which is set forth and shown in the
resurvey of the grant and plot thereof had and made A.D. 1886 by
the Mexican government upon the petition of your petitioner, Camou,
to purchase the said demasias that lay within the republic of
Mexico; which said resurvey and plot thereof and the proceedings
thereon, as well as the final sale and grants by the said Republic
of Mexico _____ petitioner Camou of the said demasias within the
said republic, and a final recognition, expressly considered and
given, of the aforesaid original grant to _____, made A.D. 1843 by
the treasurer general of the department of Sonora, are contained,
shown, and set forth in the duly authenticated original testimonio,
which was made and delivered unto the said Camou by the said
republic as complete and final evidence of title, a copy of which
is filed herein and herewith, marked as 'Exhibit B.'"
Camou also filed an amended answer, which alleged that the
Page 161 U. S. 210
tract in question had been duly located and recorded in the
archives of Mexico prior to the 25th of September, referred to in
article 6 of the Gadsden Treaty, and that his grantors and
predecessors in interest, who were the owners of the grant at the
time of the adoption of the Treaty of Guadalupe Hidalgo and of the
Gadsden Treaty, were Mexicans, and citizens of the Republic of
Mexico, and further alleged that the validity of the grant was
examined into by the United States surveyor general for Arizona,
who made a report thereon, a certified copy whereof, dated February
25, 1881, was made part of his answer. This report states that the
grant was
"for the exact quantity of seven and one-half square leagues and
two short caballerias, notwithstanding the petition was for the
vacant land lying between the northern boundary of Casita and the
western boundary of Rancho Tumacacori;"
that the survey "fixed the quantity at exactly seven and
one-half square leagues and two short caballerias;" and that
"after survey, every act in the proceedings up to and including
the formal execution of the grant was upon the basis of the exact
quantity as ascertained by survey."
The surveyor general called attention to the importance attached
by the Mexican government to the quantity or area of grants of land
as shown by the action of the procurator fiscal, hereinafter
referred to, in correcting the error of the appraisers in omitting
to value the two short caballerias, which, being done, "the grant
was executed for the definite quantity heretofore stated." In his
opinion, as the petition showed that the petitioner wanted the
vacant land bounded on the south by the Casita and northerly by the
Calabazas, without special reference to other boundaries, the claim
should be made to bind those ranchos with the easterly and westerly
lines so established as to include exactly seven and one-half
square leagues and two caballerias, and he recommended confirmation
of so much of the claim as should be found in Arizona on a survey
made as thus indicated.
Upon the trial, the court ruled that the object of the
proceeding by the government was simply to bring in the parties in
order that the claimants' title might be confirmed if it were
Page 161 U. S. 211
found that their grant was valid; that, moreover, the defendants
had prayed for such confirmation, and that the burden of proof was
upon the defendants. They thereupon offered in evidence a titulo of
the land in question, entitled
"Title to seven and one-half sitios and two short caballerias of
land for raising cattle and horses, contained in the vacant public
lands between the north boundary of the ranch of Casita and the
west boundary of the mission of Tumacacori and Calabazas, in the
upper Pima country, issued to Don Jose Elias and his parents, Don
Francisco Gonzalez and Dona Balvanera Redondo, residents of the
Town of Imuris."
From this it appeared, although the petition is not in the
record, that May 6, 1841, Don Jose Elias and his parents
applied
"for the resurvey of the lands of the ranch of Casita, of which
they are the owners and possessors, and which are situated in the
jurisdiction of the Town of Imuris, and also for the survey,
appraisement, and publication of the vacant public lands which they
say they need."
This part of the application is also described in the
proceedings as being
"for the survey, appraisement, and publication, offer and sale
of seven and one-half sitios and two short caballerias of land for
raising cattle and horses, which comprise the vacant public lands
situated between the north boundary of the ranch of Casita and the
west boundary of the mission of Tumacacori and Calabazas, in the
upper Pima country, in the district of San Ignacio."
The application was granted by the superior board of the
Treasury Department of Sonora, May 22, 1841, and a resurvey of the
ranch of Casita was ordered, as also a survey of the public lands
sought to be purchased, and the order directed that separate
expedientes should be made of both operations. This action of the
board was certified to the superior chief of the Treasury, May 26,
1841, who on that day commissioned Don Francisco Navamuel to make
the surveys. He was directed to resurvey for Don Jose Elias and his
parents the lands of Casita,
"giving them the area or number of sitios that legally belong to
them, with due separation of the sitio or sitios that result in
excess within the lawful boundaries of said lands of Casita. And at
the same time, said commissioner
Page 161 U. S. 212
shall execute, in separate expedientes, the proper survey,
appraisement, and publication of the vacant public lands the
parties in interest apply for, after the indispensable judicial
information which said commissioner, under his own strictest
responsibility, shall cause to be taken before a competent judge,
and shall aggregate to the original proceedings, and which shall be
that of three impartial, capable, and upright witnesses of
practical intelligence, by which it is legally and sufficiently
proved that the parties in interest need such vacant public lands,
and have an abundance of stock to stock them with."
The commissioner was required to act in strict compliance with
the laws of Sonora of May 20, 1825, and July 11, 1834, and to
adjust the sitio or sitios contained in the lands of Casita, their
overplus, if any, and the vacant public lands, strictly by the
regulations, giving to each sitio the area of 25,000,000 square
varas, and he was cautioned, as soon as the operations as to the
excess or overplus resulting within the lawful boundaries of Casita
were completed, that that excess should not be published, but
appraised in accordance with article 2 of decree No. 51 of May 12,
1835. The commissioner procured evidence that Gonzales and his wife
had four thousand head of cattle, more or less, and proceeded to
resurvey the ranch of Casita, and then to survey the vacant public
lands. As to this survey, he reported that he started at the north
cross monument of Casita, and directed himself "along the public
road that goes toward the north to the presidio of Tubac," 340
cords (17,000 varas), "which ended on the high road, in a flat,
where a wide canyon that comes down from the slope of the Pajarito
Mountains terminates," where he ordered a monument placed; "that of
Calabazas being about a thousand steps further on, on a high
hillock, which slopes down on the other side of said canyon." "
Having asked the party how he wanted the land squared, he replied
that he wanted twenty cords to the east, and thereupon they were
measured for him twenty-two (22) cords from the monument which is
in the high road, in a straight line, guided by the compass, to a
hillock that has many oak trees on its slope, and on the summit a
pile of stones was placed as
Page 161 U. S. 213
a monument." Having returned to the cross monument on the high
road, the commissioner measured west fifty cords (twenty-five
hundred varas), where he "reached very broken ground, which it was
impossible to measure with the cord," when he
"made a scrupulous estimate, together with my assistants, of one
hundred and fifty cords, until I arrived to where the Pajarito
Mountains turned to the north, near the place they call
'Calaveras,' said Pajarito Mountains having been crossed and within
the land surveyed, and there I ordered the party to place a pile of
stones as a corner monument."
He then returned to the place of beginning, and measured east
twenty-two cords (eleven hundred varas), "which ended upon some
hillocks at the trunk of an oak tree, where a pile of stones was
placed," and from the same point he measured and estimated
"in several stretches of rough ground, towards the west, two
hundred (200) cords, which ended on a whitish ridge that has
considerable pasture, near the so-called 'Planchas de Plata,' which
ridge divides the streams that flow towards the ranch of Agua
Caliente and those that go towards Agua Zarca. Thus, the south
boundary was closed with another two hundred and twenty-two (222)
cords, and is limited there by the ranch of Casita. In this manner
was terminated the survey of the vacant public lands, which include
seven and one-half sitios, and the party, when it was made known to
him, was satisfied, and understood the area it encloses, and was
warned to place at the first opportunity, fixed monuments of stone
and mortar."
The land was then appraised, according to the state law of
Sonora at the minimum price of fifteen dollars per sitio, the
amount being put at one hundred twelve dollars, four reals, and
publication was ordered in accordance with that law for thirty
consecutive days, by the public crier, "in solicitation of bidders
who may make a better valuation." The last publication was on
December 10, 1841, when proceedings were suspended, on account of
the absence of Don Jose Elias, until November 28, 1842, when they
were referred, as required by the law of Sonora, to the attorney
general of the treasury, who reviewed the same, and reported
thereon that the survey was 340 cords
Page 161 U. S. 214
from the north to the south and 222 cords from east to west,
which, reduced to varas, and multiplied, gave 188,700,000 square
varas, making "seven and one-half sitios and two caballerias, a
little short, for raising cattle;" that the appraisement made no
account of the two short caballerias, which were of the value of
five reals ten grains at the rate of fifteen dollars per sitio, for
which reason the total value should be one hundred thirteen
dollars, one real, and ten grains, and recommended a sale
"of said seven and one-half sitios and two short caballerias of
public land for raising cattle and horses, included between the
north boundary of the ranch of Casita and the west boundary of the
mission of Tumacacori and Calabazas,"
to the highest bidder on three public offers. This was so
ordered January 5, 1843, and after three public offers, January
5th, 6th, and 7th, sale was made to Don Jose Elias and his parents.
The description of the land offered was in these words:
"There are going to be sold, on account of the public treasury
of the department, seven and one-half sitios and two short
caballerias of land for raising cattle and horses, contained in the
vacant public lands situated between the boundaries of Casita and
those of the mission of Tumacacori and Calabazas, in the upper Pima
country."
In the third publication, the translation uses, instead of the
words, "contained in the vacant public lands," the words,
"comprising the vacant public lands," and this difference of
phraseology appears in several of the proceedings; that is,
sometimes the seven and one-half sitios are described as contained
in the vacant public lands, and sometimes as comprising the vacant
public lands. The documents in Spanish were not sent up.
The titulo then recites the receipt of one hundred and thirteen
dollars, one real, and ten grains, and that in the provisional
memorandum book of receipts for the current year the receipt of
that sum,
"being the value of seven and one-half sitios and two short
caballerias of land for raising cattle and horses, contained in the
vacant public lands between the boundaries of Casita and those of
the mission of Tumacacori and Calabazas, in the upper Pima
country,"
was entered. Thereupon the treasurer of the department of
Page 161 U. S. 215
Sonora at Arizpe, on January 7, 1843, executed the grant as
follows:
"Therefore, by virtue of the authority which the laws,
regulations and superior orders that govern in the matter confer on
me, by these presents, in the name of the Mexican nation, I grant,
in due form of law, seven and one-half sitios and two short
caballerias of land for raising cattle and horses, contained in the
vacant public lands situated between the boundaries of Casita and
those of the mission of Tumacacori and Calabazas, in the upper Pima
country, in the district of San Ignacio, to Don Jose Elias, and to
his parents, Don Francisco Gonzales and Dona Balvanera Redondo,
residents of the Town of Imuris, in said district, to whom I cede,
give, and adjudicate said lands, by way of sale, and with all the
requisites, stability, and permanence the laws establish, for
themselves, their children, heirs, and successors, etc."
Appended to the titulo appeared the following certificate,
signed by the chief clerk, which was offered in evidence by the
defendants as a part thereof:
"By supreme resolution of this day, the adjudication of the land
referred to in the title issued on the 7th of January, 1843, is
approved, under the provisions of article 3 of the law of December
3, 1855, and it is therefore legally confirmed. And in witness
thereof, and for the purposes that may be necessary, this
endorsement is made in the department of public works, in Mexico,
on the 7th of July, 1886."
A memorandum was introduced in evidence, showing that the Toma
de Razon or record book of land titles of Sonora contained an entry
that on January 7, 1943, there was issued a title of grant for
seven and one-half sitios and two short caballerias of land for
breeding cattle and horses, contained in or comprising the vacant
public lands situated between the north boundaries of Ranch La
Casita and the western boundary of the mission of Tumacacori and
Calabazas, in favor of Don Jose Elias and his parents. It was
admitted that certain field notes and a plat thereto attached were
made in December, 1891, by a surveyor, now deceased, named Oury,
and that, if living and present, he would testify that said field
notes and plat contained a survey of the claim according to
Page 161 U. S. 216
the natural objects and others descriptions contained in the
original survey; that total area being 78,868.34 acres, of which
25,899.09 were in the United States. These field notes and map were
introduced in evidence.
The testimony on behalf of the United States tended to show that
by accurate measurement commencing at the north cross monument of
the ranch La Casita, and measuring north along the Tubac road three
hundred and forty cords of fifty varas each, the measurement would
terminate in the Republic of Mexico three and fifty-four hundredths
cords -- something over four hundred twelve feet -- south of the
line between Mexico and the United States, and that, according to
Oury's survey, there were within the exterior boundaries named in
the titulo and within the boundaries of Mexico twelve and
twenty-one hundredths sitios, or about 52,969.25 acres, and within
the exterior boundaries and within the United States five and
ninety-six hundredths sitios, making in the aggregate eighteen and
seventeen hundredths sitios within the exterior boundaries, or
78,868 acres, and that seven and one-half sitios contained 32,744
acres.
There was also evidence to the effect, as sufficiently stated by
counsel for the United States, that none of the monuments referred
to in the titulo are now in existence, and that the monuments now
found on the southern boundary of the grant, being the south cross
monument, the southeast monument, and the southwest monument, have
been recently constructed and are new monuments; that the so-called
north cross monument consists of a mound of earth and pebbles about
eighteen inches high and ten or twelve feet in diameter, on top of
which is a stone eleven or twelve inches square, on which is marked
"N de E N X," and has not the appearance of being a monument, but
appears more like an ant hill, and about twenty steps from this is
a similar mound, except the stone, and that the northeast monument
is a recently constructed pile of stone, without mortar, about four
feet in diameter, built in circular shape; that the southwest
corner is not where it ought to be as described by the titulo, and
that no such place as Calaveras, named as one of the calls for the
northwest corner, was known in that part of the country.
Page 161 U. S. 217
The United States also offered in evidence a transcript of the
expediente referred to in the answer of Camou and Howard, being the
same proceedings resulting in the order of July 7, 1886, a
certificate of which was endorsed on the titulo, and introduced in
evidence by all of the defendants.
From these proceedings it appeared that on August 11, 1882, Don
Jose Camou, Jr., through whom defendants Camou and Howard and
others claimed, presented to the district judge at Hermosillo a
petition alleging that he was a Mexican citizen, and that he was
the owner of the ranch known as "Los Nogales de Elias," situated on
the boundary line of Mexico and the United States, between the
ranches La Casita, Tumacacori, and Calabazas, the overplus of which
he denounced and sought to purchase under article eight of a
general law of July 22, 1863,
"with the understanding that if the other co-proprietors of said
ranch of 'Nogales' desire to share in this overplus, I do not
object that the adjudication may be made in favor of all the owners
thereof in the proportion to which they are entitled, provided they
contribute to the expenses of the same."
On August 17, 1882, it was ordered by the district judge of
Sonora that the denouncement above referred to be admitted, and
citizen Rosas was appointed as commissioner with instructions to
resurvey the ranch called "Los Nogales de Elias" for the overplus
so applied for, and he was required to report the true area of the
ranch and the overplus of the same, if any, and was required to
proceed under the law of July 20 and August 2, 1863. It was further
recited that Rosas, in compliance with the order of the district
judge, notified the parties in interest and the owners of the
adjoining lands, and proceeded to a resurvey of the ranch according
to its exterior boundaries as described in the titulo of the grant,
and found within such exterior boundaries and monuments an excess
within the Republic of Mexico of 4,631 hectares, 21 aras, and 47
centiaras (or 2.64 sitios, being 11,443.73 acres) over and above
the seven and one-half sitios sold in 1843. The report of this
survey was made to the district judge, and by him referred to the
chief of the treasury acting as attorney general, who advised that
said excess be adjudicated to Jose Camou,
Page 161 U. S. 218
Jr., subject to the approval of the board of public works, to
which the matter was referred. That board required further
explanation of the survey, which was made by Rosas on January 15,
1886, and thereafter the district judge was directed to suspend
"approval of the adjudication until it becomes known whether or
not it prejudices the growing Town of Nogales, and likewise until
the validity and legality of the title under which it is pretended
to hold said ranch is established,"
in respect of which there was reason to entertain doubt, because
the titulo of ownership issued to Don Jose Elias in the City of
Arizpe by the departmental treasurer of Sonora, January 7, 1843,
disclosed the fact
"that the origin of the property or the original title was
vicious and null, as the sale was made and the title issued by a
departmental treasurer, and in the year 1842, when the bases of
Taxubaya were in force -- that is, when the national government was
not only central, but dictatorial -- which two circumstances give
the title in question the character of manifest nullity."
The objections appear to have been obviated, among other things,
by securing from the President of the Republic of Mexico the order
of July 7, 1886, already referred to, and, the whole matter being
again remitted to the district judge, the surplus was regularly
adjudicated to Jose Camou, Jr., who paid therefor the value, fixed
at $555.74, and costs.
The Court of Private Land Claims held that, under the original
proceedings, the right of the grantees was limited to the specific
amount of land mentioned in the proclamation of sale and the grant;
that the grant was for a specific quantity, and by its express
language the quantity was made the controlling matter of the
description, and that the intent of the granting officer to reserve
to the government the excess over the amount granted within the
boundaries, was as clearly manifested as it could have been made by
a reservation in express language, and that, even though a grant
such as the court held this to be was unknown to the Mexican law,
still what was actually effected was to be determined by the
language made use of, and that the power of the officers to do what
they did do need not be inquired into; that while a
Page 161 U. S. 219
parallelogram 340 cords in height and 222 cords in width,
measured from the point designated by the commissioner as the
cardinal point of survey, would be partly within the Territory of
Arizona and partly within the State of Sonora, yet that the grant
was specific as to quantity, but not as to location, and the only
effect of the proceedings was to designate certain boundaries
within which the quantity of lands granted was to be located; that,
of necessity, the location was to be determined by subsequent
action, but no action was ever taken. The conclusion was that at
the time of the treaty of cession, the grant had not been located
within the meaning of that instrument, and hence, by its express
terms, could not now be recognized as of any validity, and that it
was not such a grant as by the terms of the treaty the United
States was bound to recognize and confirm, which, by the terms of
the act creating the court, was the test of the rights of the
parties.
The Court of Private Land Claims entered a decree
"that the defendants, or either or anyone of them, take nothing
by their claim of lands lying north of the international boundary
line between the United States and Mexico, and that the claims of
the various defendants as made in their answers are hereby declared
without merit, and are disallowed."
From this decree an appeal was prosecuted to this Court.
Some definitions and explanations may properly be added to the
foregoing statement.
A vara equals 32.9927 inches; a cordel, 137.95 feet, or 50
varas; a sitio contains 4,338.464 acres; a caballeria, 105.75
acres; a hectare, 2.471 acres; a "sitio de ganado menor," or sheep
ranch, 1,928.133 acres. An expediente is a complete statement of
every step taken in the proceedings, and a testimonio is the first
copy of the expediente. A grant of final title papers is attached
to the testimonio and delivered to the grantee as evidence of
title, and entry is made at the time in a book called the "Toma de
Razon," which identifies the grantee, date of the grant, and
property granted. The dictionaries define "tomar razon," "to
register, to take a memorandum of, to make a record of a thing,"
and "Toma de Razon," "memorandum book."
Page 161 U. S. 220
The Gadsden Purchase added a strip along the southern boundary
of the Territory of New Mexico, and Arizona was detached, and made
a separate territory in 1863, within which strip and territory the
land in controversy is situated.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
As remarked in
Astiazaran v. Santa Rita Mining Co.,
148 U. S. 80,
148 U. S. 81, a
case involving title to the ranchos of Tumacacori, Calabazas, and
Huevavi, undoubtedly private rights of property within ceded
territory are not affected by the change of sovereignty and
jurisdiction, and are entitled to protection, whether the party had
the full and absolute ownership of the land or merely an equitable
interest therein which requires some further act of the government
to vest in him a perfect title. And this is so by the law of
nations, "with or without any stipulation to such effect,"
Strother v.
Lucas, 12 Pet. 410,
37 U. S. 436, but
when stipulations exist, the terms in which the high contracting
parties have expressed themselves are to be observed.
By article 8 of the Treaty of Guadalupe Hidalgo, February 2,
1848, Mexicans, established in territories previously belonging to
Mexico, and remaining for the future within the limits of the
United States, as defined by the treaty, were free to continue
where they then resided or to remove at any time to the Mexican
Republic, "retaining the property which they possess in said
territories, or disposing thereof, and removing the proceeds
wherever they please," and
"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
Page 161 U. S. 221
to it, guaranties equally ample as if the same belonged to
citizens of the United States."
9 Stat. 922, 929.
Article VI of the Gadsden Treaty, December 30, 1853, is as
follows:
"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, or will any
grants made previously be respected or be considered as obligatory,
which have not been located and duly recorded in the archives of
Mexico."
10 Stat. 1031, 1035.
The difference in language between the two treaties is readily
seen. Grants previous to the cession which have not been located
are by the terms of the latter treaty not to be respected or
considered as obligatory, as matter of right, whatever the United
States might see fit to do as matter of grace under particular
circumstances. And grants which have not been located would seem
manifestly to be grants of a specific quantity of land within
exterior boundaries containing a larger quantity. This was a
familiar class of Mexican grants, and is referred to by MR. JUSTICE
FIELD in
Hornsby v. United
States, 10 Wall. 224,
77 U. S. 232,
where, delivering the opinion of the Court, he said:
"As we have had occasion to observe in several instances, grants
of the public domain of Mexico, made by governors of the department
of California, were of three kinds: (1) grants by specific
boundaries, where the donee was entitled to the whole tract
described; (2) grants by quantity, as of one or more leagues
situated at some designated place, or within a larger tract
described by outboundaries, where the donee was entitled, out of
the general tract, only to the quantity specified, and (3) grants
of places by name, where the donee was entitled to the tract named
according to the limits, as shown by its settlement and possession,
or other competent evidence. The greater part of the grants which
have come before this Court for examination have belonged to the
second class. "
Page 161 U. S. 222
The mode in which private rights of property may be secured, and
the obligations imposed upon the United States by treaties
fulfilled, belong to the political department of the government to
provide. In respect to California, this was done through the
establishment of a judicial tribunal, but in respect of the
adjustment and confirmation of claims under grants from the Mexican
government in New Mexico and in Arizona, Congress reserved to
itself, prior to the passage of the Act of March 3, 1891, c. 539,
creating the Court of Private Land Claims, 26 Stat. 854, the
determination of such claims, enacting, as to New Mexico:
"That the surveyor general for the territory, under the
instructions of the Secretary of the Interior, should ascertain the
origin, nature, character and extent of all such claims, and for
this purpose might issue notices, summon witnesses, administer
oaths and do all other necessary acts, and should make a full
report on such claims, with his decision as to the validity or
invalidity of each under the laws, usages and customs of the
country before its cession to the United States, and that his
report should be laid before Congress for such action thereon as
might be deemed just and proper, with a view to confirm
bona
fide grants, and to give full effect to the treaty of 1848
between the United States and Mexico."
Astiazaran v. Santa Rita Mining Company, supra; Act of
July 22, 1854, 10 Stat. 308, c. 103, ยง 8, and similarly as to the
surveyor general of Arizona by the Act of July 15, 1870, 16 Stat.
304, c. 292.
As to the claim in question, this officer made the report
attached to one of the pleadings, but the claim was never
confirmed. An authentic survey and final determination of the
location and boundaries of such claims was contemplated in any
event.
Stoneroad v. Stoneroad, 158 U.
S. 240. Then came the passage of the Act of March 3,
1891, repealing the prior acts and creating the court whose decree
is now under review.
By the first subdivision of section 13 of this act, it is
provided that:
"No claim shall be allowed that shall not appear to be upon a
title lawfully and regularly derived from the government of Spain
or Mexico, or from any of the states
Page 161 U. S. 223
of the Republic of Mexico having lawful authority to make grants
of land, and one that, if not then complete and perfect at the date
of the acquisition of the territory by the United States, the
claimant would have had a lawful right to make perfect had the
territory not been acquired by the United States, and that the
United States are bound, upon the principles of public law, or by
the provisions of the treaty of cession, to respect and permit to
become complete and perfect if the same was not at such date
already complete and perfect."
Here again, there are significant differences between this
phraseology and that used in the Act of March 3, 1851, "to
ascertain and settle the private land claims in the State of
California," 9 Stat. 631, c. 41, which provided that the board of
commissioners thereby created, the district court, and this Court,
in deciding on the validity of any claim brought before them,
should
"be governed by the Treaty of Guadaloupe Hidalgo, the law of
nations, the laws, usages and customs of the government from which
the claim is derived, the principles of equity, and the decisions
of the Supreme Court of the United States, so far as they are
applicable;"
that is, the decisions theretofore given in relation to title in
Louisiana and Florida, which were derived from the French or
Spanish authority previous to the cession to the United States.
Fremont v. United
States, 17 How. 542,
58 U. S.
553.
But, under the Act of March 3, 1891, it must appear, in order to
the confirmation of a grant by the Court of Private Land Claims,
not only that the title was lawfully and regularly derived, but
that, if the grant were not complete and perfect, the claimant
could, by right, and not by grace, have demanded that it should be
made perfect by the former government, had the territory not been
acquired by the United States, and by the treaty no grant could be
considered obligatory which had not been theretofore located.
It is contended on behalf of the United States that this grant
was void because the departmental officers had no power, under the
laws of Mexico in force when it purported to be made, to make it
without the approval of the supreme government, which it is not
claimed had been given, and also, if
Page 161 U. S. 224
otherwise valid, that confirmation could not be accorded,
because the evidence failed to show that it was duly recorded in
accordance with the requirements of the Mexican laws; but we need
not enter upon the consideration of either of these propositions,
since, assuming that this was a valid grant, made by the proper
officers and duly recorded, we concur with the court below that it
was the grant of a specific quantity of land, and not of the entire
eighteen leagues contained within the exterior boundaries, and, not
having been located at the date of the treaty, could not be
confirmed.
It is to be noted that the petition of Don Jose Elias does not
appear in the expediente, and its nonproduction is nowhere
accounted for. The recitals in other parts of the proceedings as to
the contents of such a petition were not considered in
United States v.
Cambuston, 20 How. 59,
61 U. S. 63, as
conclusive or even satisfactory evidence of that fact, and
appellants' argument treats the exact terms of the application as
of importance, since they insist it was a petition for all the
vacant public lands between the north boundary of Casita and the
west boundary of Tumacacori and Calabazas. But the most that can be
claimed is that the petition was for seven and one-half sitios as
what was needed for the cattle of Don Elias and his parents, and
that Don Elias may have assumed that that number of sitios covered
all the vacant lands. And as in our judgment the expediente shows
that what was directed to be appraised, what was appraised, what
was directed to be sold, what was sold, what was paid for, and what
purported to be granted was seven and one-half sitios and two short
caballerias, while the alleged preliminary survey indicated general
boundaries containing over eighteen sitios, we think, as the Court
of Private Land Claims did, that the grant was of seven and
one-half sitios and two scant caballerias within exterior
boundaries, and that location was a prerequisite to any action by
the court.
Appellants insist that the grant of a certain quantity of land
situated at some designated place, or within a larger tract
described by outboundaries, was not known to the "the West," made
up of Sonora and Sinaloa, and reference is made
Page 161 U. S. 225
to certain laws of May 20, 1825 and of July 11, 1834, as showing
that lands in that state were to be surveyed before they were sold,
and sold by metes and bounds as surveyed. The order of the superior
board of the treasury of the department, set forth in the
expediente, required compliance with the provisions of the law of
July 11, 1834, and also with the regulations for surveying lands
for raising cattle and horses made under the law of May 20, 1825;
and, as to any overplus within the lawful boundaries of Casita,
required it not to be published, but appraised in conformity with
article 2 of decree No. 51 of May 12, 1835.
Article 30 of the law of 1825 provided that the owners of sitios
should place at their boundary termini monuments of stone and
mortar "as soon as possession thereof is given them, and if within
three months from the date the survey is concluded they do not do
so," that a fine should be exacted from them, and monuments ordered
constructed at their expense. Article 63 of the law of 1834 was to
the same effect, and read:
"It is the duty of owners of sitios to place upon the boundary
lines of their estates landmarks of stone as ordered by the
statutes, as soon as they are in possession of their estates, and
if within three months counting from the date that they receive
their title, they have not complied with this regulation, they
shall incur a penalty of twenty-five dollars, which they shall pay
to the judge for the public funds, and moreover shall cause the
said landmarks to be constructed at the cost of said
proprietors."
And it is said that in Sonora (and as respects lands acquired
under the Gadsden Treaty), when public lands were parted with, the
transaction constituted an executed contract of purchase, rather
than a grant. Conceding that the boundaries mentioned in these laws
are not outboundaries, but specific boundaries, they are boundaries
ascertained by authentic survey of specific tracts taken possession
of as so delineated, and it does not follow that these proceedings
were anything more than the Court of Private Land Claims found them
in effect to be, namely, a grant of a specific quantity of land,
which was to be afterwards located.
Page 161 U. S. 226
Compliance with decree No. 51 of Sonora of May 12, 1835, with
reference to the overplus in La Casita was required, as we have
said, and, moreover, the review of the proceedings by the attorney
general of the treasury states that the commissioner proceeded
"to the resurvey of the ranch of Casita, from which there
resulted within this property the same nine sitios the original
surveyor, Jose Olave, measured and estimated on the 20th day of
April, 1742, and nine million two hundred thousand square varas
more, which do not make half a sitio; and, even if they had reached
that fraction, they should not be considered as overplus, under the
provisions of the last clause of article 2 of decree No. 51 of the
12th of May, 1835, of the old state, and which is still in
force."
That article is as follows:
"Article 2. Those are likewise '
bona fide' owners who,
under the descriptions given in their records of survey, occupy
some excess of land, and they are entitled to such excess, even
after such excess is shown, without any other requirement than that
of paying for the excess in accordance with the quality of the land
and the price which prevailed when the land was measured and
appraised, and only in case the owner does not want the excess, or
when such excess is very great in the opinion of the government,
upon the report of the Treasury, shall such excess be awarded to
anyone denouncing or soliciting it, and such person shall bear the
expense of the resurvey, if the excess has not been ascertained. In
lands measured by calculation (
graduacion), none shall be
regarded as excess that does not exceed half a sitio."
It thus appears that the resurvey of grants was provided for to
ascertain the excess over the quantity intended to be granted;
that, unless the excess was more than half a sitio, it might be
disregarded, and that if it exceeded that, the owner of the
original grant might be allowed to take it at the valuation. The
application of Don Jose Elias was for a resurvey of the Casita in
order that he might obtain the overplus lands therein on an
appraisal, whereas if that ranch had been acquired by purchase and
corpus -- that is to say, all the lands included by certain metes
and bounds, possession delivered,
Page 161 U. S. 227
and monuments set up -- it is not apparent how the necessity for
having a resurvey could have existed, and so, when in 1882 and 1886
the Mexican government was applied to by defendant Camou, under the
law of July 22, 1863, his application proceeded upon the theory
that the grant under consideration was a grant of a specific
quantity within exterior limits, and what he sought and was
accorded was an adjudication of the overplus on paying the value
thereof "in conformity with the tariff in force at the time of the
denouncement."
Certain articles of the law of July 22, 1863, treat of the
ascertainment and disposition of excesses where the indicated
boundaries are supposed to cover only a certain quantity of land
which, when resurveyed, turns out to be much larger than as
described in the titles, and such resurveys had been practiced from
an early day, and were recognized by Don Elias himself in his
application in respect of La Casita. Royal Decree, Oct. 15, 1754,
sec. 7, Reynold's Span. & Mex. Land Law 54; Law July 11, 1834,
c. 9, sec. 3;
Id., 187; Law July 22, 1863, Hall's Mex.Law
174.
In any view, whether treated upon the principles applicable to a
voluntary grant or as a purchase and sale, appellants' contention
that Don Elias and his parents took all the public lands north of
Casita as one tract by metes and bounds could be sustained only on
proof of a determination of such metes and bounds by actual survey
and delivery of possession accordingly.
Navamuel was instructed to survey seven and one-half sitios of
the vacant public lands "situated between the north boundary of the
ranch of Casita and the west boundary of the mission of Tumacacori
and Calabazas," and to measure the land between the north boundary
of one tract and the west boundary of another may be supposed to
involve considerable difficulty. However, it is said that the
mission of Tumacacori and Calabazas lay north of these lands, and
the surveyor general of Arizona was of opinion that the claim
should bind the ranchos of Casita and Calabazas "with the easterly
and westerly lines so established as to include exactly seven and
one-half square leagues and two caballerias." The proceedings
Page 161 U. S. 228
show that Navamuel understood that the sale was not to be of a
particular tract for a sum in gross, but of a specific number of
sitios at the upset price fixed by the appraisal of those sitios,
and that he was not to survey the whole of an existing tract, but
to delineate a tract containing the desired number of sitios. With
that understanding he apparently attempted, partly by measurements
and partly by conjecture, to survey a parallelogram of 340 cordels
by 222 cordels, which would contain seven and one-half sitios,
running a little over, and, so far from intending to include all
the public lands, he consulted the party "as to how he wanted the
land squared" -- that is, the land to come to him -- and acted on
his reply.
Appellants deny that Navamuel laid out a parallelogram
containing seven and a half sitios, and insist that instead he
designated the boundaries of a tract containing all the public
lands, being somewhat over eighteen sitios. They say that the
northwest and southwest corners were arrived at partly by
estimation; that the height of the grant as described was 449.82
cords, and not 340, as stated, and that the distance from the north
cross monument to the northwest corner was over 470 cords, instead
of 200. Navamuel did not visit the western boundary, and the
southwest corner as claimed seems on the evidence not to be where
that corner should be according to the titulo. As to the northwest
corner, Oury, in December, 1891, could find no place called
"Calaveras," and no monument 200 cords west of the north cross
monument; but as he did find an old monument of loose rock 470-odd
cords west at Calabazas pass, and because of Navamuel's reference
to the Pajarito Mountains in that connection, he concluded to
accept that monument as the northwest corner; in other words, he
fixed on a point twelve and a half miles west as the point Navameul
placed at five miles and a fraction. We fear that these
speculations did injustice to Navamuel, but we think they make it
quite clear that to apply the rules of metes and bounds to the
entire tract of vacant public lands is quite inadmissible when
taken with the other facts and circumstances.
In common law conveyances, the words "more or less,"
Page 161 U. S. 229
while sometimes having practically no effect, are frequently
added to prevent the precise quantity named from being conclusive
on the parties, and may operate to make a sale of land one in gross
instead of by the acre; but the bare fact that Navamuel estimated a
portion of his measurements was not equivalent to stamping "more or
less" on the transaction or rendering the specified quantity not of
its essence.
So monuments control courses and distances and courses and
distances control quantity, but where there is uncertainty in
specific description, the quantity named may be of decisive weight,
and necessarily so if the intention to convey only so much and no
more is plain.
These considerations need not be elaborated, nor the common law
cases cited examined, inasmuch as we are of opinion on this record
that the number of sitios specifically named was controlling.
How much land was appraised and sold and paid for? The minimum
price at which the land could be appraised and sold was $15 per
sitio. The price paid was at that rate for exactly seven and
one-half sitios and two caballerias. The commission to the
appraisers was for the appraisement of seven and one-half sitios;
the appraisement was for seven and one-half sitios; the procurator
fiscal, in his review of the proceedings, pointed out that the
appraisers had erred in taking no account of the two short
caballerias, which he valued at five reals and ten grains, raising
the total value from $112.50 to $113.15; the order for publication
of notice referred to "the sitios surveyed for Don Jose Elias and
Don Francisco Gonzalez" as "having now been appraised," and the
notices published were for the sale of "seven and one-half sitios
and two short caballerias of land appraised at $113, 1 real, and 10
grains." The order striking off and selling the property to the
purchasers, after reciting the assembling of the board, stated
that, the crier having announced that the seven and one-half sitios
and the two short caballerias of land were to be sold, and that
thereupon the agent of Don Jose Elias and his parents came forward
and again offered the one hundred and thirteen dollars, one real,
and ten grains, for which the land was
Page 161 U. S. 230
appraised, continued:
"And the midday hour of twelve having sounded, for the last time
the crier said:"
"Going once, twice, three times; sold, sold, sold; may it do
much good, good, good, to Don Jose Elias and his parents, Don
Francisco Gonzalez and Dona Balvanera Redondo."
"In these terms this act was terminated, and there was publicly
and solemnly sold the seven and one-half sitios and two short
caballerias of land for raising cattle and horses, comprising the
vacant public lands situated between the boundaries of Casita and
those of the mission of Tumacacori and Calabazas, in the upper Pima
country, in the jurisdiction of the Town of Imuris, for the sum of
one hundred and thirteen dollars, one real, and ten grains, in
which they were appraised."
It is true that in the translation before us the words
"comprising the vacant public lands" are used, while in other parts
of the proceedings the specified quantity is described as
"contained in" or "comprised in" the vacant public lands; as, for
instance, in the execution of the grant the words are, "contained
in the public lands." But we do not think this difference in
translation, or if existing in the original, can operate to make
this an appraisement, advertisement, and sale of all the public
lands north of Casita, no matter what their extent, but that these
proceedings and the grant were plainly an appraisement,
advertisement, sale, purchase, and grant of the specific quantity
of seven and one-half sitios and two caballerias scant. It is
certain that the officers had no authority and did not intend to
sell 78,868 acres for the purchase price of 32,744 acres; that in
all the proceedings the transaction was limited to seven and
one-half sitios; that Navamuel determined what was needed by Elias
as a cattle breeder, made his survey, approved the appraisement,
and published for bids at "a better valuation" on that basis, and
that the Mexican government has construed the grant in the same way
in ordering a resurvey, and thereupon adjudicating the excess over
seven and one-half sitios.
This brings us to consider whether juridical possession was
delivered to the grantee as asserted by appellants.
In
United States v.
Pico, 5 Wall. 536, where there was
Page 161 U. S. 231
a concession by specific boundaries, and the words "in extent
twelve square leagues" were added to the resolution of approval of
the departmental assembly after the description of the tract ceded,
it was held that these words did not create a limitation on the
quantity granted, as they were evidently not used for any such
purpose, but merely indicated a conjectural estimate of the
quantity, and MR. JUSTICE FIELD observed that
"when, in Mexican grants, boundaries are given, and a limitation
upon the quantity embraced within the boundaries is intended, words
expressing such intention are generally used,"
and that, in case of doubt as to the intention to cede all the
land within the designated boundaries, the doubt would be removed
by the juridical possession delivered to the grantees which
"proceeding involved an ascertainment and settlement of the
boundaries of the land granted by the appropriate officers of the
government specially designated for that purpose, and has all the
force and efficacy of a judicial determination."
In
Malarin v. United
States, 1 Wall. 282,
68 U. S. 289,
MR. JUSTICE FIELD, again speaking for the Court, in setting forth
the act of juridical possession described in the expediente in that
case, said:
"Under the civil, as at the common, law, a formal tradition or
livery of seisin of the property was necessary. As preliminary to
this proceeding, the boundaries of the quantity granted had to be
established when there was any uncertainty in the description of
the premises. The measurement and segregation in such cases
therefore preceded the final delivery of possession. By the Mexican
law, various regulations were prescribed for the guidance in these
matters of the magistrates of the vicinage. The conditions annexed
to the grant in the case at bar required the grantee to solicit
juridical possession from the proper judge. In compliance with this
requirement, within four months after the issue of the grant, he
presented the instrument to the judge of the district and requested
him to designate a day for delivering the possession. The judge
designated a day and directed that the adjoining proprietors be
cited and that measurers and counters be appointed. On the day
designated, the proprietors appeared,
Page 161 U. S. 232
and two measurers and two counters were appointed, and sworn for
the faithful discharge of their duties. The line provided for the
measurement was produced, and its precise length ascertained. The
measurers then proceeded to measure off the land, the judge and the
proprietors accompanying them. The measurement being effected, the
parties went to the center of the land, and there the judge
directed the grantee to enter into the possession, which he did,
and gave evidence of the fact 'by pulling up grass and making
demonstration as owner of the land.' Of the various steps thus
taken, from the appointment of the day until the final act of
delivery, a complete record was kept by the judge, and by him
transmitted to the grantee, after being properly entered upon the
'book of possessions.'"
In
More v. Steinbach, 127 U. S. 70,
127 U. S. 80-81,
the grant required the grantee to
"petition the proper judge to be put in juridical possession by
him in virtue of this document, by whom the boundaries shall be
marked out, on the limits of which he shall place the proper
landmarks. The land now granted is of the extent of four square
leagues, more or less, as shown by the map which accompanies the
expediente. The judge who shall give him possession shall have it
measured in conformity with the evidence, the surplus that results
remaining in the nation for its proper use."
This requirement of the grant was not complied with, and this
Court said:
"The grantees were not invested with such title, and could not
be, without an official delivery of possession under the Mexican
government, and such delivery was not had, and could not be had,
after the cession of the country, except by American authorities
acting under a law of Congress."
Appellants' counsel contends that
"the juridical possession of 'said seven and one-half sitios and
two short caballerias of land, comprising the vacant public lands
between the boundaries of Casita and those of Tumacacori and
Calabazas' was, on January 7, 1843, the date of the grant,
delivered by Ignacio Lopez, the treasurer general of the department
of Sonora, in the presence of the two witnesses, Antonio Teran y
Peralta and Joaquin Urias, to the grantees, in pursuance of the
survey
Page 161 U. S. 233
made November 24, 1841, and following days, in the presence of
Marcello Bonilla, the coterminous owner, by which survey the land
was segregated from the public domain."
But Ignacio Lopez was not a judicial officer, and had no
authority to perform a judicial act; neither Lopez nor the
attending witnesses nor the grantees were, on the 7th of January,
1843, upon the land nor anywhere near it, but were at the City of
Arizpe; the coterminous proprietors were none of them then called
to give assent to the final act investing the grantees with title
and possession, and there was, of course, no physical act on the
part of the grantees accepting or taking possession of the grant.
The attempt of counsel is to make out the act of juridical
possession by reference to the date of the survey, which was more
than a year before the land had been sold, bought, and paid for,
nor was there at that time any pretense of the formal delivery of
possession, if it could have been done by anticipation. The
application, it will be remembered, was for a resurvey of Casita,
as well as for a survey of the public land sought to be acquired,
and it appears from the expediente that the mission of Tumacacori
and Calabazas was represented by Don Marcelo Bonilla on that
occasion. And Navamuel also says that
"in this manner was terminated the survey of the vacant public
lands, which include seven and one-half sitios, and the party, when
it was made known to him, was satisfied and understood the area it
encloses, and was warned to place at the first opportunity, fixed
monuments of stone and mortar."
But it still remained for the property to be sold and purchased,
and possession to be taken; and, though the applicant had the
preference at the price fixed by the appraisement, a higher bid
would have taken the property.
Nor are we prepared to accede to the suggestion that because, in
the final execution of the grant, the purchasers were cautioned "to
restrict and limit themselves to the land, holdings, metes and
bounds particularly described in the hereinbefore inserted
proceedings of survey," and to comply with the law as to monuments
at their boundary termini, therefore it is to be inferred that the
act of juridical possession
Page 161 U. S. 234
had already taken place, though not disclosed by Navamuel's
report.
The seven and one-half sitios could undoubtedly have been
located, juridical possession delivered, and monuments of stone and
mortar put up, and the grantees would then have been limited to
their metes and bounds thus ascertained; but the grantees did not
do this, and, so long as these public lands remained in Mexico,
were liable on resurvey to account for the excess over what they
actually bought on such terms as the government imposed.
We have referred to the proceedings of 1882, 1886, in Mexico, as
furnishing persuasive evidence of the proper construction of this
grant under Mexican law, and it may be further observed that the
adjudication of the overplus required the location of the seven and
one-half sitios, which location Mexico, as the granting government,
assumed it had the right to make, and made, out of the land within
its jurisdiction. In this way the grant was satisfied by the
receipt of all that the grantees had bought and were entitled to
under the Mexican law, the result as to the overplus inuring to
Camou's cotenants by the terms of his petition.
In any view, no reason is perceived for disregarding the
construction thus put upon the titulo, and, as the land purchased
was not located at the date of the cession, the United States were
not bound by the treaty to recognize the claim as of right, nor
could the Court of Private Land Claims confirm it.
The fact that a parallelogram of 340 cordels by 222 cordels,
making seven and one-half sitios and two caballerias, if correctly
measured from the initial point of Navamuel's survey, would be
partly within the Territory of Arizona is immaterial.
Decree affirmed.
MR. JUSTICE PECKHAM was not a member of the Court at the time
this case was argued, and took no part in its decision.
