The Spanish law did not,
proprio vigore, confer upon
every Spanish villa or town a grant of four square leagues of land,
to be measured from the center of the plaza of such town.
Although, under that law, all towns were not, on their
organization, entitled by operation of law to four square leagues,
yet, at a time subsequent to the organization of Santa Fe, Spanish
officials adopted the theory that the normal quantity which might
be designated as the limits of new pueblos to be thereafter created
was four square leagues.
The rights of Santa Fe depend upon Spanish law as it existed
prior to the adoption of that theory.
An inchoate claim, which could not have been asserted as an
absolute right against the government of either Spain or Mexico and
which was subject to the uncontrolled discretion of Congress, is
clearly not within the purview of the Act of March 3, 1891, c. 539,
creating the Court of Private Land Claims, but the duty of
protecting such imperfect rights of property rests upon the
political department of the government.
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
Page 165 U. S. 676
This case comes on appeal taken by the United States from a
decree of the Court of Private Land Claims confirming to the lot
holders in privity with the City of Santa Fe the lots held by them
in severalty in that city, and confirming to the city itself, in
trust for the use of its inhabitants, a tract of four square
leagues claimed by the city, except mines of gold, silver, and
quicksilver, and property appropriated, used, occupied, possessed,
or owned by the United States.
It is conceded or shown that, prior to 1680, there existed a
Spanish town known as "La Villa de Santa Fe," which was the seat of
government of the Spanish province of New Mexico, and that there
was also prior to that date the official mechanism required by the
Spanish law to direct the affairs of a Spanish villa or town. The
origin of the town or villa is obscure, but the record indicates
that as early as 1543, the settlement was made by deserters from
the Spanish military force under Coronado, who refused to accompany
their commander on his return to Mexico, and settled at Santa Fe.
In 1680, the Spaniards were driven out by an Indian insurrection,
and Santa Fe was destroyed, the Spaniards retreating to Paso del
Norte, where they remained until 1692, when Diego de Vargas
reconquered the country. In 1693, De Vargas reestablished Santa Fe.
From that time to the American occupation -- although the record
does not fix the precise character of the municipal government --
there is no doubt that there was a settlement on the site of the
old villa of Santa Fe, and that it was also the capital of the
province. In 1851, Santa Fe was incorporated, and its boundaries
defined by act of the Territorial Legislature of New Mexico. Laws
of New Mexico, 1851-52, Kearney's Code 112. The municipal charter
granted in 1851 was shortly thereafter repealed, and the probate
judge of the county became, by operation of law, the custodian of
the records of the corporation, and was a trustee to wind up its
affairs. Laws of New Mexico, 1851-52, Kearney's Code 272. No
municipal body existed from this time until the year 1891, when
Santa Fe was again organized pursuant to the laws of New
Mexico.
Under the eighth section of the Act approved July 22, 1854,
Page 165 U. S. 677
10 Stat. 308, the probate judge of the County of Santa Fe
presented to the surveyor general of New Mexico a claim on behalf
of the city for four square leagues of land. This claim was
substantially based upon the averment that, as the City of Santa Fe
was in existence during the whole period of Spanish sovereignty
over New Mexico, it was certain that,
"under the Spanish laws, usages, and customs, the inhabitants
thereof were, as a community, entitled to receive, and your
petitioners believe and claim did in fact receive, a grant from the
crown for at least four square leagues of land and commons, which
they now claim."
As the legal authority for this asserted right of the city,
reference was made to specified provisions of the law of Spain, and
the prayer of the petition was
"that said land be surveyed, and that a patent therefor be
issued by the United States to the probate judge for the time being
of said County of Santa Fe, in trust for the use and benefit of the
landholders and inhabitants within said tract and for the City of
Santa Fe until the same be by law incorporated under charter, and
thereby become the rightful custodian of the patent for said tract
of land."
The surveyor general reported for confirmation to Congress the
claim thus made (H. of R. Ex.Doc. 239, 43d Cong., 1st Sess.), and,
the recommendation not having been acted upon, this suit was
commenced by the City of Santa Fe under the provisions of the Act
of March 3, 1891, creating the Court of Private Land Claims. 26
Stat. 854, c. 539.
The petition originally filed on behalf of the city, after
setting out the existence of the Spanish villa known as "La Villa
de Santa Fe," substantially averred that the municipality of Santa
Fe occupied the situs of the Spanish villa and possessed
jurisdiction over the same territory, and therefore was, in law,
the successor to all the rights enjoyed by the Spanish villa. It
alleged that prior to the Indian insurrection in 1680, the villa
had received a pueblo grant of four square leagues of land, the
central point of which was in the center of the plaza of the City
of Santa Fe; that the grant was made by the King of Spain; that
juridical possession was given thereunder, and that such facts were
evidenced by a valid
testimonio; that
Page 165 U. S. 678
the archives and records of the villa were destroyed in the
Indian insurrection of 1680, and therefore the title could not be
produced. The fact was also averred that the claim had been
submitted to the surveyor general, and had been by him recommended
favorably to Congress. The prayer was for a confirmation of the
grant to the city
"in trust for the use and benefit of the inhabitants thereof,
and of such grantees and assignees of parts of the said lands as
have derived, or may hereafter acquire by due assignments,
allotments, and titles in severalty to said parts
respectively."
The defendant demurred on the ground that the petition stated no
cause of action, and also because it failed to disclose the fact
that there were many adverse claimants, under Spanish grants, to
the land sued for, and that such claimants were necessary parties
defendant.
Appearances were thereafter filed by seventeen persons, alleging
that they were the holders of Spanish titles to land within the
area claimed and that their interests were therefore adverse to
those of the city. Thereupon an amended petition was filed by the
city which in its caption mentions as defendants not only the
original defendant, the United States, but the seventeen persons
who had made appearance as having adverse interests. This amended
petition substantially reiterated the averments of the original
petition as to the foundation and existence of the villa of Santa
Fe, but omitted the allegations on the subject of an express grant
to La Villa de Santa Fe, the delivery of juridical possession
thereunder, and the issuance of a
testimonio. The
allegation on these subjects was that, prior to the insurrection in
1680,
"La Villa de Santa Fe was entitled to, and had under the laws of
the Kingdom of Spain in force in that territory at that time, a
municipal or pueblo grant conceding to and vesting in said Spanish
town or villa a certain tract of land containing four square
Spanish leagues."
The positive averment in the original petition as to the
destruction during the insurrection of 1680 of the evidence showing
the existence of an express grant was replaced by a qualified
averment that "all the muniments of title of such municipal grant,
if any such existed, were utterly destroyed by the hostile
Indians engaged in such insurrection."
Page 165 U. S. 679
The amended petition also averred that within the boundaries of
the grant claimed there
"are now living about seven thousand people and about fifteen
hundred heads of families, nearly all of whom own, occupy, and have
improved lands which they claim to hold under the said grant to the
Villa de Santa Fe, and there is erected thereon buildings and
improvements in public and private ownership claiming under said
grant, to the value of several millions of dollars, and that none
of said claimants and occupants are in any sense adverse claimants
to your petitioner. And your petitioner further shows that there
are claimed to be certain private land grants to individuals named
as defendants in this proceeding of tracts of land within the
exterior line of said four square leagues granted to your
petitioner as aforesaid. But your petitioner avers that if any such
exist, each and all of them are junior in date, subordinate, and
subject to the said municipal grant to your petitioner's
predecessor as a town and villa, and whether the said private land
grants are claimed adversely to your petitioner or not your
petitioner is not advised, but it states that all of said private
land grants have been filed before this Court for adjudication, and
have already been set for hearing in this Court for the same date
as this case, and that all of said claimants have subjected
themselves to this Court, with their alleged private land grants
for its determination and decision, when the matter of their
interests as against those of your petitioner can be fully and
finally determined."
The answer of the United States denied the alleged facts as to
the foundation and organization of La Villa de Santa Fe; denied
that the plaintiff, a municipal corporation, existing under the
laws of New Mexico, was the successor or entitled to assert the
rights, if any, of the Spanish villa. It also denied that the
Spanish villa had received title to or was by operation of the
Spanish law entitled to claim the four square leagues of land;
averred that title to a large portion of the land embraced within
the four square leagues was claimed under Spanish grants by others
than the plaintiff, the validity of which claims was not, however,
admitted, and that other portions of the four square leagues were
in control, occupancy,
Page 165 U. S. 680
and possession of the United States for a military post known as
"Fort Marcy," for a building known as the "federal building," and
for an establishment known as the "Indian Industrial School," and
that another portion was in possession of the territorial executive
officers under the authority of the United States.
The persons holding conflicting grants, who were made
defendants, also filed answers specially denying the making of the
Spanish grant to La Villa de Santa Fe, or the right of that villa
to a grant of four square leagues by operation of the Spanish law.
It, moreover, specially denied that the heads of families,
residents, or other persons who occupy or own house lots or lands
in the City of Santa Fe, claim to hold the same under the alleged
grant of the villa of Santa Fe, whether express or implied, and
specially denied that the holders of lots in the City of Santa Fe
were not adverse to the claim asserted by the city to the four
square leagues. It moreover alleged the various grants, eighteen in
number, alleged to have been made by the Spanish authorities to the
respective parties, averred their conflict with the asserted rights
of the city, and prayed that, as such claims had been filed and had
been previously presented to the court, that they be considered and
approved, and that the claim of the city by rejected. The issues
made up by these pleadings were tried. In the opening of the trial,
the counsel for the plaintiff made the following statement:
"After consultation with most of the counsel for the city, the
disposition seems to be to respect the claims of the United States
either under its original disposition or under its purchases from
private individuals. There is no disposition to deny the right of
the United States to those properties which it has occupied since
the change of sovereignty. We are willing to concede that to the
United States attorney."
"I desire to make a statement to the court as to what our
evidence is to be, and as to how we are claiming we are entitled to
the grant under which we claim to represent here. Our claim is
analogous to the claim made in the City of San Francisco case, and
is analogous to the claim which is known as the Brownsville, Texas,
claim. If the court please, we claim our grant on, not so must as
to the existence of papers of title,
Page 165 U. S. 681
or documentary evidence, but through operation of law, as was
claimed and held in the case of the Town of Albuquerque, which this
Court has already decided, and as was held in San Francisco and
Town of Brownsville, Texas. The case of the City of San Francisco
was decided by the Supreme Court of the United States after the
City of San Francisco produced evidence sufficient to show that it
was a corporation under the Mexican and Spanish governments; that,
as such corporation, it possessed an ayuntamiento and other city
officials which belonged to it, and on this evidence the court
presumed and said it was entitled to four square leagues. It was so
held in the Town of Brownsville, and was so decided by this
honorable court in the Town of Albuquerque against the United
States, case No. 8."
"In our case, we expect to show that we had an existence in the
year 1680, and that as far back at least as 1704, we had a
corporate existence, and that, as having such corporate existence,
and having duly constituted officials, an ayuntamiento and alcalde
of that corporation, that this court will presume that we are
entitled to four square leagues of land, to be measured from the
center of the plaza of this town."
"In regard to these adverse claims presented here, I do not just
now desire to call the attention of the court to what we think is
the law fixing their rights. I will, however, say that we will
combat the idea that the governors of this territory had any power
to make grants within the exterior boundaries of the Santa Fe
grant; whether they have been made, I do not pretend to admit, and
we will combat the idea that they were made through lawful
authority by the persons granting them."
The proof established the settlement and organization of the
City of Santa Fe in accordance with the facts already stated. The
various grants referred to in the answer of the several defendants
were offered in evidence, and testimony adduced tending to show
that they covered territory embraced within the claim to the four
leagues, and were therefore adverse to the claims of the city.
There was no evidence whatever introduced showing that
Page 165 U. S. 682
La Villa de Santa Fe, in any of its forms of organization under
the Spanish government, or that the City of Santa Fe itself, had
ever possessed the four square leagues to which it asserted title,
or that any lot holder in the city claimed to own or hold by virtue
of any title derived under the supposed right of the city. Indeed,
there was an entire absence of any proof showing that any right by
possession or otherwise within the area claimed was held under or
by virtue of the implied grant of four square leagues, upon which
the city relied. On the contrary, there was proof that in 1715, the
City of Santa Fe petitioned for a grant of a tract of swamp land
situated within the boundaries of the four square leagues, to which
it now asserts title by operation of law, and that this prayer was
granted.
The judgment of the court, which allowed the claim of the city,
with the reservations and conditions stated in the opening of this
opinion, rejected the claims of the defendants who appeared and
asserted the various adverse Spanish grants, so far at least as
they were in conflict with the claim of the city to which we have
referred. As, however, the United States has alone appealed from
the decree in favor of the city, we are concerned on this appeal
only with the issues which arise between the United States and the
City of Santa Fe.
The fundamental question in the case is did the Spanish law,
proprio vigore, confer upon every Spanish villa or town a
grant of four square leagues of land, to be measured from the
center of the plaza of such town. The claim that the law of Spain
conferred such right is based on certain provisions of that law
applicable to the possessions of that government on this continent,
and which are to be found in a compilation promulgated in 1680 and
known as the "Recopilacion de las Indias."
The compilation itself is thus described by Schmidt in his
treatise on the Civil Laws of Spain and Mexico, who says (p.
94):
"The method adopted in this code is the same as that pursued in
the Nueva Recopilacion of the Laws of Spain. It is divided into
nine books, comprising two hundred and eighteen
Page 165 U. S. 683
titles, which contain six thousand four hundred and forty-seven
different legal enactments, all of which, derived from the orders,
decrees, and regulations of different sovereigns, and often
temporary in their character, are dignified with the title of laws.
Hence, there is found united in this compilation many laws on the
same subject, in which the preceding law is only repeated, others
in which it is modified, and still others in which it is abrogated,
either in whole or in part. The veneration of the compilers for
laws which once had received the royal sanction seems to have been
so great that they did not consider themselves at liberty to omit
them. This mode of proceeding has swelled this code to its present
dimensions, when, if a more rational method had been adopted, it
could readily have been compressed into one-third of the space it
actually accupies."
The reliance of the City of Santa Fe is first on the text of the
Spanish law, second on the contention that if there be ambiguity in
the text, the right of the city to the four square leagues results
from a construction given to the Spanish law in proceedings with
reference to the claim of the City of San Francisco to a grant of
land and from acts of Congress in relation to such claim, and third
upon the contention that the interpretation of the Spanish law upon
which the city bases its right is sanctioned by previous
adjudications of this Court. We will examine these propositions in
the order stated.
First.
The Spanish law relied upon.
The only provisions of the Recopilacion to which we are referred
as sustaining the claim of the city are laws 6, 7, and 10, of title
5, book 4, which are found in 2 White, New Recopilacion, pp. 44-45.
They read as follows:
Law 6:
"If the situation of the land be adapted to the founding of any
town to be peopled by Spaniards, with a council of ordinary
alcaldes and regidores; and, if there be persons who will contract
for their settlement, the agreement shall be made upon the
following conditions: that within the prescribed time, it shall
comprise at least thirty heads of families, each of whom to possess
a house, ten breeding cows, four
Page 165 U. S. 684
steers, or two steers and two young bullocks, a breeding mare, a
breeding sow, twenty breeding ewes from Castile, and six hens and a
cock; he shall, moreover, appoint a priest to administer the
sacraments, who the first time shall be of his choice, and
afterwards, according to our royal patronage; he shall provide the
church with ornaments and articles necessary for divine worship,
and he shall give bond to perform the same within said period of
time, and if he fail in fulfilling his agreement, he will lose all
that he may have built, worked, or repaired, which shall be applied
to our royal patrimony, and incur the forfeiture of one thousand
ounces of gold to our chamber (camera), and if he should fulfill
his obligations, there shall be granted to him four square leagues
of territory, either in a square or lengthwise, according to the
quality of the land, in such a manner that, when located and
surveyed, the four leagues shall be in a quadrangle, and so that
the boundaries of said territory be at least five leagues distant
from any city, town or village, inhabited by Spaniards and
previously settled, and that it cause no prejudice to any Indian
tribe, nor to any private individual."
Law 7:
"If anyone should propose to contract for a settlement in the
prescribed form, to consist of more or less than thirty heads of
families, provided it be not below ten, he shall receive a grant of
a proportionate quantity of land, and upon the same
conditions."
Law 10:
"Whenever particular individuals shall unite for the purpose of
forming new settlements, and among them there shall be a sufficient
number of married men for that purpose, license may be granted to
them, provided there be not less than ten married men, together
with an extent of territory proportioned to what is stipulated, and
we empower them to elect, annually, from among themselves, ordinary
alcaldes and officers of the council."
Law 6, as we have quoted it from White's work, varies from the
translation of Reynolds in his work on Mexican Law; the latter
version, instead of saying that the land "shall be granted," being
that it "may be given." No importance, however, is to be attached
to this difference, since it is evident
Page 165 U. S. 685
from either translation of the law as a whole that it was
optional, and not obligatory, on the representative of the King to
enter into the contracts which the law authorized to be made. It is
apparent also from the text of these laws that they provided solely
for the allotment of lands for the purpose of a settlement to be
made under contract and on the performance of certain conditions --
in other words, that these laws delegated authority to contract for
certain specific quantities of land to accomplish the particular
results which the laws contemplated. The effect of law 7 was to
forbid contracts for the establishment of towns unless the
settlement was to be made by ten persons, and to vary the amount of
land to be granted according as the number of heads of families
might exceed ten and be less than thirty, which latter is treated
by law 6 as being normally required for a contract settlement.
Looking at the text of the laws, it is difficult to understand upon
what theory the claim is advanced that every Spanish town, whether
settled under contract or not, was entitled to four square leagues.
It cannot be denied that this quantity of land was not the right of
every town settled under contract, since the amount varied with the
number of heads of families with whom the contract was made, and
who were to constitute the settlement.
The argument, however, is pressed that law 10 embraces all towns
not settled under contract, since it says, "whenever particular
individuals shall unite for the purpose of forming new
settlements." From this expression is deduced the proposition that,
as the provisions for contract related to settlements of towns made
by a particular contractor, therefore they were inapplicable to
settlements made by individuals united for that purpose, in which
latter case it is claimed the right to the land arose not by virtue
of a contract, but by operation of law. Granting, for argument's
sake the correctness of the contention, it fails to justify the
claim of the city, because law 10 does not specify the quantity of
land to be enjoyed by a settlement made by individuals uniting for
the purpose of settling a new town, but simply says that they shall
have an extent of territory "proportioned to what is
stipulated."
Page 165 U. S. 686
This reference to what is stipulated must either be to the
requirements of laws 6 and 7 or to some other regulation on the
subject. If it relates to laws 6 and 7, then it would necessarily
subject individuals uniting to form a settlement to the terms of
laws 6 and 7, and therefore render it necessary that the right to
land should arise from contract. Indeed, the argument in favor of
the claim of the city logically leads to the inconsistent position
that laws 6 and 7 are read into law 10 for the purpose of the
quantity of land to be granted, and are read out of that law
insofar as the prerequisite necessity of a contract is
concerned.
But reference to the ordinances of Philip II. (promulgated more
than one hundred years prior to the Recopilacion), in which law 10
was found, makes its meaning perfectly clear and demonstrates that
the construction now sought to be given law 10 has no other
foundation than the confusion in compiling the Recopilacion of
which we have made mention in citing the language contained in the
treatise of Schmidt on the subject. Thus, in the ordinance of
Philip, law 6 of title 5, book 4, of the Recopilacion, was numbered
as ordinances 88 and 89. Following those ordinances, down to 99,
inclusive, are various provisions regulating contract settlements.
Then comes ordinance 100, which is now law 7, above referred to.
The next ordinance (101) is identical with law 10. Ordinances 102
and 103 (now law 20, book 4, title 7; law 9, book 4, title 5, and
law 21, book 4, title 7, of the Recopilacion) read as follows:
Law 20, book 4, title 7:
"A contract having been made under the authority of a colony, a
governor, an alcalde mayor, a mayor, a town or village, the
council, and those who made the same in the Indies shall not be
satisfied with having accepted and made the contract, but shall
continue to control it and direct how it shall be carried into
effect, and shall keep a record of all that is being done."
Law 9, book 4, title 5:
"In contracts for new settlements made by the government, or
whoever shall be thereto authorized in the Indies, with cities,
adelantado, superior alcalde or corrigidor, the
Page 165 U. S. 687
person entering into the agreement shall do so likewise with
each individual who may enlist to join the settlement, and he will
bind himself to grant building lots in the new settlement, together
with pastures and lands for cultivation in a number of peonias and
caballerias proportionate to the quantity of land which each
settler shall obligate himself to improve; provided it shall not
exceed, nor shall he grant more to each than five peonias or three
caballerias, according to the express distinction, difference, and
measurement prescribed in the laws of the title concerning the
distribution of lands, lots, and waters."
Law 21, book 4, title 7:
"We direct that the governor and the magistrate of the town
newly settled,
ex officio or on petition of a party, shall
require the fulfillment of the contract with due diligence and care
by all of those who may be bound to make new settlements, and the
council and the corporation attorneys shall appear by petition
against such settlers as have not fulfilled their contracts within
the term agreed upon, in order that they be compelled, with all
rigor of law, to carry out that which was stipulated, and that the
judges shall proceed against those who may be absent, and that they
be arrested and brought to the settlements, and that requisition be
made for those who may be in other jurisdictions, and all judges
shall grant them under penalty of our displeasure."
This retrospect at once demonstrates that the rights acquired
under law 10 depended upon contract, and could only arise
therefrom, since that law was but one provision of a system
providing for grants under contract alone. To illustrate, reviewing
the provisions in the order in which they stood before their
confused compilation in the Recopilacion, ordinances 88 and 89 (law
6) and ordinance 100 (law 7) provided for contracts with an
individual for founding a town, for the quantity of land to be
contracted for, and prescribed regulations for the new settlement.
Ordinance 101 (law 10) provided for individuals uniting for the
purpose of a settlement. Ordinance 102 (law 20, book 4, title 7)
also in this latter case treated a contract with such united
individuals or
Page 165 U. S. 688
colony as a necessary prerequisite, and the subsequent
provisions ordain rules for the government of these settlements and
the enforcement of the obligations arising under the contracts.
Various provisions in the Recopilacion, moreover, clearly
establish that the power to make contracts for settlements, whether
with one contracting person or with a community of individuals, was
not unrestrained and was subject to exception.
Thus, law 6, book 4, title 7, provided as follows (2 White, New
Recop. p. 46):
"No tract of land for new settlements shall be granted or taken
by agreement in any seaport, nor in any part which might at any
time be prejudicial to our royal crown or to the republic, our will
being that they be reserved to us."
The same law is thus translated in the appendix to the brief for
the government:
"Land and term for a new settlement shall not be granted or
taken under contract in seaports, nor at any place where at any
time damage may result to our royal crown or the community, because
it is our will that they be reserved for us."
The object of these provisions was clearly not only to prevent
contracts as to seaport settlements, but also such contracts as to
places where it might be prejudicial to make grants of land,
although there might be general authority to that end.
It may well also be implied from the provisions in the
Recopilacion that the right of a town to hold land for public
purposes was required to be evidenced by a grant from the viceroy
or governor, and that such grant, when made, required confirmation
by the crown. Thus, law 1, title 13, book 4, of the Recopilacion (2
White, New Recop. p. 55), is as follows:
"The viceroys and governors, being thereto authorized, shall lay
out for each town or village which shall be newly founded and
peopled the lands and lots which they may want, and the same shall
be granted to them as reservations (proprios) without prejudice to
third persons. They shall transmit to us information of what they
shall have laid out, that we may order the same to be confirmed.
"
Page 165 U. S. 689
While it may be that the necessity for confirmation was
dispensed with at some date much later than the establishment of
Santa Fe, there is no question that this provision was in force at
the time when it is claimed that the settlement came into existence
as a Spanish town.
The theory, then, of the vesting by operation of law in every
Spanish town at the time of its organization of a title to four
square leagues of land finds no support in the text of the Spanish
laws, and is repugnant to their general tenor, as it is in direct
conflict with mandatory provisions of that law exacting a grant and
its confirmation. Of course, the existence of power to make
contracts for settlements in particular cases cannot be held to
have deprived the proper authorities of the right to make grants in
other cases where a general power to that effect was possessed.
There are various texts of the Recopilacion showing not only that
the Spanish crown itself, by its supreme authority, contemplated
the making of gifts of land to individuals, but also that such
gifts were expected to be made for the purpose of the settlement of
towns where there was originally no contract therefor, either with
colonies or with a particular contractor. To avoid prolixity as far
as possible, we do not quote the text of the laws on this subject,
contenting ourselves with establishing the existence of the power
by showing some instances where it was undoubtedly exercised. The
petition for and grant made to Santa Fe itself of the tract of
swamp land to which we have called attention is one of such
instances. We find in the record the petition of one Juan Lucero de
Godoy, dated El Paso, January 15, 1693, addressed to the governor
and captain general and reciting in substance that prior to the
insurrection of 1680, he had taken up his residence in Santa Fe,
and received a grant of land, and praying for a regrant of the
land, part of which was situated within the area of four square
leagues to which the city now asserts title. There is also a
recognition of the exercise of this power referred to in
Chouteau v.
Eckhart, 2 How. 343, where it appears that the
Village of St. Charles applied for an enlargement of its commons,
and that the Spanish governor replied that the intendant of the
province
Page 165 U. S. 690
must make such grant, but that he would provisionally allow the
town to occupy the land prayed for. So, in
Lewis v. San
Antonio, 7 Tex. 288, it was shown that there had been an
express grant, and that the boundaries had been duly marked and
laid out, covering six square leagues. But the concession that
there was a power in the Spanish crown or its authorized officers
to make grants of land when considered by them to be proper would
not justify a holding that the authorities must have deemed it
imperative to make a grant of a definite quantity to every town
when established, no matter under what circumstances it was
founded. To so conclude would amount to saying that it was the duty
of the United States, after the cession by Mexico of the territory
covered by the treaty, to presume, because the Spanish officials
had the power to make grants, that they had actually exercised it
in favor of every town and every individual within the territory
ceded. If we were to make so preposterous an assumption, the task
would yet remain of determining how much land it would be
presupposed had been given because the power to give existed in
each case -- a duty impossible of performance.
If, however, it were conceded, in plain violation of the letter
of the Spanish law, that every town was entitled to a grant of land
by operation of law, the quantity to which the town would be
entitled would remain wholly undefined and undetermined, and would
have, if allowed by inference, to be created by an arbitrary
exercise of judicial power. Plainly, from the provisions of the
Recopilacion, the quantity varied with the condition of the
respective settlements, and to imply a grant of land to the extent
of four square leagues in every case would be to suppose that every
settlement was alike, while the law itself contemplated that they
would be different, and subject to different allowances. This
consequence is shown by a statement in the treatise of Hall on
Mexican Law, where it is said, sec. 117, p. 51:
"Limits of Pueblos. -- There never existed any general law
fixing four square leagues as the extent of pueblos or towns. That
extent of land was assigned to pueblos founded by contractors for
Spaniards, by law 6, title 5, book 4, of the
Page 165 U. S. 691
laws of the Indies. Those formed by the government, independent
of contractors, were only limited by the discretion of the
governors of the provinces and viceroys, subject to approval or
disapproval of the King. There are numerous pueblos in Mexico which
have less, and many that have more, than four square leagues."
And in section 118, the same author declares that the jurists of
Mexico are unacquainted with any such provision of Spanish
jurisprudence as that four square leagues should be the superfice
of pueblos.
These facts as to the condition of things in Mexico are in
accord with the claims to land made against the United States under
the law of Spain by villages and towns in Florida and Missouri, to
which we shall hereafter take occasion to refer more
particularly.
As the right which the city asserts is devoid of every element
of proof tending to show a possession coupled with claim of title,
but rests upon the mere assumption of a right asserted to have
arisen by operation of law hundreds of years ago, of course, there
is no room for the application of a presumption of an actual grant,
within the doctrine declared in
United States v. Chaves,
159 U. S. 452.
Even did the case present a claim of express grant, proof of the
existence of which rested on presumptions arising from acts of
possession, etc., there are many circumstances attending the
history of Santa Fe, and the nature of its establishment, which we
have heretofore recited, which would strongly tend to rebut the
presumption. The town was, it would seem, originally a colony of
deserters from the Spanish army which was located in the midst of
the native Indians. It became afterwards the capital seat of the
province, and a fortified town, and was presumably, in its
permanent creation, the outcome and development of the success of
the Spanish arms, rather than of the exercise of the power to
induce settlements by contracts with individuals or otherwise. It
is impossible, on the theory of the petitioner, to explain the
petition presented by the city to the Spanish governor, in 1715,
for a concession of a tract of swamp land situated within the four
square leagues now claimed,
Page 165 U. S. 692
for, if the right to the entire four square leagues then
existed, it was complete. At the time of this petition, if the
claim here advanced had any foundation, or was deemed by anyone to
exist, such fact would, of course, have been then known, and have
rendered the petition for the grant of the swamp wholly
unnecessary.
We now proceed to examine the next proposition advanced to
support the claim of the City of Santa Fe, which is as follows:
Second.
Whatever, as an original question, may be the
correct interpretation of the Spanish law, the right of every town
to four square leagues of land under that law is no longer a
subject of controversy, but is concluded in favor of such right by
the report of the board of land commissioners, which passed upon
the of San Francisco, by the decision of the circuit court of the
United States on the same subject, by the persuasive force of
certain decisions of the Supreme Court of California referring to
the title of San Francisco, and finally by the action of Congress
on the subject.
The history of the San Francisco claim, however, does not
justify the contention thus urged. The pueblo of San Francisco, in
the first place, was not a Spanish, but a Mexican, town, and its
claimed rights were asserted to have been obtained from the supreme
government of Mexico. Thus, as stated in the report of the board of
land commissioners, the petition alleged (Dwinelle, Colonial
History of California, Append. p. 121):
"That in pursuance of the laws, usages, and customs of the
government of Mexico, and an act of the departmental legislature of
California of the 9th of November, 1833 (1834), and proceedings in
pursuance thereof, the pueblo of San Francisco was duly created and
constituted a municipal corporation, with a municipal government,
and with all the rights, properties, and privilege of pueblos under
the then existing laws, during the said year 1833 (1834), and that
there was then and there, by the supreme government of Mexico, in
the manner by law prescribed, ceded and granted to the said pueblo
for town lands and for common lands, all and singular the premises
described in their said petition. "
Page 165 U. S. 693
It may be conceded
arguendo that there was in force at
the time the pueblo of San Francisco was established laws of the
government of Mexico and regulations based thereon expanding the
law of Spain, so as to entitle a newly established pueblo to have
measured off and assigned to it by officers of the government four
square leagues of land, without in any way implying that such right
existed under early Spanish laws. The necessity for action by
Congress in the case of San Francisco was produced by various
causes, such as grants made by the officials of the pueblo while
San Francisco was part of the territory of Mexico, and grants which
purported to have been made after the occupation of the town by the
forces of the United States by persons claiming to be the lawful
successors of such Mexican officials. For these reasons, there was
great confusion and uncertainty in the titles to land in the city.
By the Act of March 3, 1851, 9 Stat. c. 41, p. 631, Congress
created a board of land commissioners to determine claims to land
in California asserted "by virtue of any
right' or `title'
derived from the Spanish or Mexican government." Section 14 of that
act permitted the claims of lotholders in a city to be presented in
the name of such city and authorized the presumption of a grant
to a city which was shown to have been in existence on a date
named. The section is found in full in the margin. [Footnote 1]
Page 165 U. S. 694
The City of San Francisco was incorporated in 1850, with
municipal boundaries of less extent than four square leagues. It,
however, presented to the board a claim for confirmation of title
to a four-square league tract. In December, 1854, the claim of the
city was confirmed by the board to only a certain portion of the
four square leagues claimed. The opinion of the majority of the
commissioners is contained in the appendix to Dwinelle's Colonial
History, pp. 121-147. The opinion makes clear the fact that the
decree of confirmation was based upon the following conclusions,
to-wit:
"1st. That a pueblo or town was established under the authority
of the Mexican government in California on the site of the present
City of San Francisco, and embracing the greater portion of the
present corporate limits of said city."
"2d. That the town so established continued and was in existence
as a municipal corporation on the 7th day of July, 1846."
"3d. That at or about the time of its establishment, certain
lands were laid off and assigned in accordance with the laws,
usages, and customs of the Mexican nation for the use of the town
and its inhabitants, and the boundaries of said lands determined
and fixed by the proper officers appointed for that purpose by the
territorial government."
"4th. That the boundaries so established are those described in
the communication from Governor Figueroa to M. G. Vallejo, dated
November 4, 1834, a copy of which is filed in the case, marked 'Ex.
No. 18,' to the deposition of said Vallejo."
(Dwinelle, Append. 147.)
After the foregoing finding of facts, the board summed up the
law in the following language:
"These conclusions bring the case, in our opinion, clearly
within the operation of the presumption raised in favor of a grant
to the town by the fourteenth section of the Act of the 3d of
March, 1851, and entitle the petitioner to a confirmation of the
land contained within the boundaries described in the document
above mentioned."
While the ultimate finding of the board was thus rested upon the
authority to presume a grant conferred by Congress
Page 165 U. S. 695
and upon the Mexican law and regulations and conduct of Spanish
and Mexican officials, which were limited to particular localities
and which have no application to the Spanish law as it appears in
the Recopilacion, its opinion yet contained a copious historical
review of the Spanish and Mexican law on the subject of grants to
towns. From the fact that both the early Spanish law and the
Mexican law were considered, and growing out of some forms of
expression contained in the opinion, it has sometimes been said
with inaccuracy that the opinion sanctioned the proposition that
every Spanish town, considering the Spanish law to which reference
has been made, was entitled to a grant of four square leagues.
The want of foundation for this often reiterated misconception
of the finding of the board of commissioners will be at once shown
by a brief consideration of the instructions and documents, apart
from the text of the Recopilacion itself, upon which the board
acted. They were five in number, as follows:
(1) Instructions, etc., of Don Antonio Bucareli y Urusu, dated
Mexico, August 17, 1773. (Dwinelle, Append. p. 2; 1 Rockwell,
444.)
(2) Regulations of Don Felipe de Neve, approved by the King on
October 1, 1781. (Dwinelle, Append. p. 3; Rockwell, 445.)
(3) Instructions made for the establishment of the new Town of
Pitic, dated Chihuahua, November 14, 1789. (Dwinelle, Append. p.
11.)
(4) Decree of Don Pedro de Nerva, dated Chihuahua, March
(October) 22, 1791. (Dwinelle, Append. 17; 1 Rockwell, 451),
and
(5) Opinion of the assessor or legal adviser of that
comandancia, dated in 1785.
Document No. 1 makes no reference to a designation or granting
of lands for the use of pueblos.
No. 2 -- to wit, regulations of 1781 for the government of the
province of California -- referred to the existence of the new
establishments of the presidios and the respective ports of San
Diego, Monterey, and San Francisco, and the founding and building
of the pueblo of San Jose, and prescribes certain
Page 165 U. S. 696
regulations for carrying into effect the expected establishment
of proposed new settlements. These regulations rested undoubtedly
on the laws of the Indies, but make material additions and
modifications thereto. Section 4 provides that, conformably to the
provisions of the laws of the Kingdom, competent common lands shall
be "designated" for the pueblos, but there is no statement as to
the law governing the quantity of land to be marked out. The
regulations, however, were specially approved by the King of
Spain.
No. 3 -- the plan of Pitic -- commences with the following
statement:
"Instructions approved by His Majesty, and made for the
establishing of the new Town of Pitic, in the province of Sonora,
ordered to be adopted by the other new projected settlements
(poblaciones), and by those that may be established in the district
of this general 'comandancia.'"
The second section of the instruction reads af follows:
"(2) In conformity with the decree of the law 6th, title 5th, of
the same book 4th, relative to the towns of Spaniards that may be
founded by agreement or contract, and first in relation to those
which for want of contractors shall be erected by private settlers
(pobladores) who may establish themselves and agree to found them,
there may be granted to the town in question four leagues of bounds
or territory in a square or in length, (
que se fundaren y
concordaren enformanas se podra a la de que se exara quatro leguas
determino o territorio en quadro o prolongado) as shall be
adapted to the better location of the land that shall be selected
or marked out so that its true boundaries shall be known, wherein
there can be no inconvenience, and, inasmuch, as it is distant more
than five leagues from any other town, city or village of
Spaniards, there shall not result injury to any private individual,
nor to any 'pueblo' of Indians, on account of that (the village)
'de los Seris' remaining within the demarcation as part or suburb
of the new settlement, subject to its jurisdiction, and with the
advantage of enjoying as neighbors the same benefits public and
common that the settlers may have, and of which at present those
same natives are wanting, owing to their indolence,
Page 165 U. S. 697
their default of application, and of intelligence reserving to
them the faculty of choosing their 'alcaldes and regidores,' with
the jurisdiction, economy and other circumstances prescribed by the
laws 15 and 16, title 5, book 6."
It is obvious from the most casual examination of this section
that it not only does not support the theory that, under the
Recopilacion the right to four square leagues was granted to each
and every settlement, but, on the contrary, that its plain purpose
was simply to grant the discretionary power to allot four square
leagues to settlements not under contract, and to exempt such
grants from many requirements of the Recopilacion, such as that as
to the number of residents, and the conditions to be performed on
the part of the founder of the settlement. In other words, this
decree, which was approved by the King of Spain, was substantially
an act of new and supplementary legislation, adding to the
provisions of the Recopilacion and conferring rights not covered by
its text. The fact of the making of this decree conveying the
authority to give four square leagues in cases where there was no
contract demonstrates, of course, that the power thus given was not
deemed theretofore to have existed by the specific terms of laws
specially applicable to town settlements, for how can it be
supposed that a solemn order would have been required from the King
to sanction the doing of that which the law already expressly
permitted. It is to be observed also that the delegation of power
to make a grant of four square leagues in cases of noncontract does
not import the significance that, by operation of law such a grant
was made in every case. The language is, there "may be" granted to
the town in question, not that there "shall be" granted in every
case, or that the governor "shall be" obliged to do so.
No. 4 -- the decree of Pedro de Nerva, under date of October 22,
1791 -- refers to an opinion of an official styled the "assessor of
the comandancia general." The portion of the decree having
pertinency here reads as follows:
"And considering the extent of four common leagues measured from
the centre of the presidio square,
viz., two leagues
Page 165 U. S. 698
in every direction, to be sufficient for the new pueblos to be
formed under the protection of said presidios (
que van
formandose a su abrigo), I have likewise determined, in order
to avoid doubts and disputes in the future, that said captains
restrict themselves henceforward to the quantity of house lots and
lands within the four leagues already mentioned, without exceeding
in any manner said limits, leaving free and open the exclusive
jurisdiction belonging to the intendentes of the royal hacienda,
respecting the sale, composition, and distribution of the remainder
of the land in the respective districts."
The language of this decree, instead of confirming the theory
that every town was entitled to four square leagues under the law
of Spain, on the contrary would seem to indicate that De Nerva
considered that the extent of the boundaries of the new pueblos
should be subject to his uncontrolled discretion. Indeed, in
Welch v. Sullivan, 8 Cal. 195, this decree was interpreted
as largely extending the limits of pueblos beyond four square
leagues.
No. 5 -- the opinion of one Galindo Nevara -- is printed on
pages 10 and 11 of the appendix to Dwinelle's work, and is treated
as the opinion cited in De Nerva's decree of October 22, 1791. It
was addressed to the honorable commandant general, and is dated
October 27, 1785. It considers the question of the right to make
requested allotments of lands for cattle ranches, and in the course
of the document, the writer observes that such allotments should
not be made within the boundaries assigned to pueblos, which in
conformity to law 6, title 5, lib. c. 4, of the Recopilacion, must
be four leagues of land in a square or oblong body, according to
the nature of the ground. This cannot be the opinion to which De
Nerva referred in 1791, for the one to which he alludes related to
the authority which was possessed over the distribution of lands of
a presidio. Nor can this mere opinion, if authentic, be considered
as conclusive, or even as persuasively determining the meaning of
law 6, since it cannot be reconciled with the subsequent decree of
1791, declaring that, "in order to avoid doubts and disputes in
future," it was necessary to specify the precise quantity of land
to constitute the limits of the
Page 165 U. S. 699
pueblos to be subsequently established. The inference to be
deduced from all these documents supports the theory that, under
the Spanish laws, as found in the Recopilacion, all towns were not
entitled by operation of law to four square leagues, but that at a
late date, the Spanish officials had adopted the theory that four
square leagues was the normal quantity which might be designated as
the limits of new pueblos to be thereafter created.
Whether from these amendments or supplements to the Spanish law
it was correctly held that a fixed quantity of land passed to every
new pueblo by effect of law is not relevant to the matter now under
consideration, as the rights of Santa Fe, if any, arose long prior
to the period to which these documents relate, and depend upon the
Spanish law, and that law exclusively. It would seem, however, from
the statement of Hall, already quoted
supra, that the
implication that every new Mexican town was entitled to four square
leagues was a misconception. This review has been made in order, at
the outset, to remove the erroneous conception which has been so
often reiterated, as to the right of towns, by mere operation of
law, under the Spanish law, to four square leagues. It is really
unnecessary, however, to analyze the opinion of the board of land
commissioners for the purpose of showing that no recognition of a
right, by operation of law, to four square leagues was contained in
it, for the reason that it is obvious that the decision of the
board confirming only a portion of the claim of the City of San
Francisco was a rejection of the four square league theory. That
San Francisco so interpreted the decree is manifested by the fact
that it was not accepted by that city as final, but an appeal was
taken to the district court, to which court also the United States
appealed. Moreover, the action of Congress in confirming, in 1864,
under certain conditions, a limited right in favor of San
Francisco, and its final action, in 1866, in confirming the right
of that city to four square leagues, with many important
reservations, and upon conditions wholly incompatible with the
existence in that city of a primordial right to four square
leagues, amounted to a refusal by Congress to recognize the theory
that every
Page 165 U. S. 700
town was entitled to four square leagues. On the contrary, those
acts were tantamount to an assertion by Congress of its undoubted
right to control the disposition of the land so far as it deemed
best to do so. Acts July 1, 1864, c.194, section 5, 13 Stat. 333,
and March 6, 1866, 14 Stat. c. 13, p. 4.
In passing, we also observe that the same reasons which cause it
to be unnecessary to examine in detail the opinion of the board of
land commissioners also render it unessential to analyze and
determine the persuasive effect of the cases subsequently decided
by the Supreme Court of California, cited in argument by the city,
viz., Welch v. Sullivan, 8 Cal. 168,
Hart v.
Burnett, 15 Cal. 530. The issue which those cases presented
was the nature of the title of San Francisco, on the conceded
premise that it possessed a title of some kind. This question was
solved by a full reference to the Spanish and Mexican law, much in
the same manner as the board of land commissioners had previously
done.
An appeal was taken from the decision of the board of land
commissioners to the district court of the United States. We quote,
as to subsequent steps in the controversy, from the opinion in
San Francisco v. Le Roy, 138 U. S.
666:
"In April, 1851, the charter of San Francisco was repealed and a
new charter adopted. Pending the appeal of the pueblo claim in the
United States district court, the Van Ness ordinance, above
mentioned, was passed by the common council of the city, by which
the city relinquished and granted all its right and claim to land
within its corporate limits as defined by its charter of 1851, with
certain exceptions, to parties in the actual possession thereof by
themselves or tenants on or before the 1st of January, 1855,
provided such possession was continued up to the time of the
introduction of the ordinance into the common council, which was in
June, 1855, or, if interrupted by an intruder or trespasser, had
been or might be recovered by legal process, and it declared that,
for the purposes contemplated by the ordinance, persons should be
deemed possessors who held title to land within those limits by
virtue of a grant made by an ayuntamiento, town council, alcalde,
or justice of the peace of the former pueblo
Page 165 U. S. 701
before the 7th of July, 1846, or by virtue of a grant
subsequently made by the authorities, within certain limits of the
city previous to its incorporation by the state, provided the
grant, or a material portion of it, had been recorded in a proper
book of records in the control of the recorder of the county
previous to April 3, 1851. The city, among other things, reserved
from the grant all the lots which it then occupied or had set apart
for public squares, streets, and sites for schoolhouses, city hall,
and other buildings belonging to the corporation, but what lots or
parcels were thus occupied or set apart does not appear."
"Subsequently, in March, 1858, the legislature of the state
ratified and confirmed this ordinance (Stat. of Cal. of 1858, c.
66, p. 52), and, by the fifth section of the act of Congress to
expedite the settlement of titles to lands in the State of
California, the right and title of the United States to the lands
claimed within the corporate limits of the charter of 1851 were
relinquished, and granted to the city and its successors for the
uses and purposes specified in that ordinance. 13 Stat. 333, c.194,
§ 5."
But that the relinquishment thus referred to was not considered
by Congress as equivalent to a recognition of an absolute title in
the City of San Francisco, but was deemed to be an act of grace and
grant on the part of Congress, is shown by the fact that the fifth
section contained, in addition to the relinquishment referred to in
the foregoing quotation, the following provision:
"There being excepted from this relinquishment and grant all
sites or other parcels of lands which have been, or now are,
occupied by the United States for military, naval, or other public
uses, or such other sites or parcels as may hereafter be designated
by the President of the United States, within one year after the
rendition to the General Land Office by the surveyor-general, of an
approved plat of the exterior limits of San Francisco, as
recognized in this section, in connection with the lines of the
public surveys."
It was also further provided:
"That the relinquishment and grant by this act shall in no
manner interfere with or prejudice any
bona fide claims of
others whether asserted
Page 165 U. S. 702
adversely under rights derived from Spain, Mexico, or the laws
of the United States, nor preclude a judicial examination and
adjustment thereof."
This act of Congress transferred the appeal which had been taken
to the district court from the decision of the board of land
commissioners from that court to the circuit court of the United
States. The latter court, in its opinion rendered on the hearing of
the appeal,
San Francisco v. United States, 4 Sawyer 553,
561, 573, accepted as admitted
"the existence of an organized pueblo at the present site of the
City of San Francisco upon the acquisition of the country by the
United States on the 7th of July, 1846; the possession by that
pueblo of proprietary rights in certain lands, and the succession
to such proprietary rights by the City of San Francisco."
It was also assumed to be conceded (pp. 561-574),
"that the lands appertaining to the pueblo were subject, until
by grant from the proper authorities they were vested in private
proprietorship, to appropriation to public uses by the former
government, and, since the acquisition of this country, by the
United States."
The circuit court, contrary to the holding of the board, found
that the limits of the pueblo had never been measured or marked
off, and considered the question as to the extent of lands in which
a pueblo acquired an interest under Mexican laws, and determined it
to be four square leagues. But although the opinion referred to the
Spanish law, the conclusion as to the right of San Francisco was
based upon Mexican laws, customs, and usages, and the reasoning of
the opinion was in accord with that of the board of land
commissioners, to which we have already referred. The claim of the
city was confirmed
"in trust for the benefit of the lotholders under grants from
the pueblo, town, or City of San Francisco, or other competent
authority, and, as to any residue, in trust for the use and benefit
of the inhabitants of the city."
There was excepted, however, from the confirmation such parcels
of land within the four square leagues
"as have been heretofore reserved or dedicated to public uses by
the United States, and also such parcels of land as have been by
grants from lawful authority vested in private proprietorship,
Page 165 U. S. 703
and have been finally confirmed to parties claiming under said
grants, by the tribunals of the United States, or shall hereafter
be finally confirmed to parties claiming thereunder by said
tribunals, in proceedings now pending therein for that
purpose."
San Francisco v. United States, 4 Sawy. 577.
That this decision was in conflict with the claim of the city
that, under the Mexican law it was entitled, as a matter of right,
to four square leagues, is shown by the finding of the court that
whatever was the right in the city, it was so inchoate that, up to
the time of confirmation by the United States, all the ungranted
land within the area claimed was subject to such dedication for
public purposes as the United States saw fit to make -- that is,
that the whole ungranted land covered by the claim was
substantially public domain at the entire disposition of the United
States for public purposes. That this decision was not in accord
with the asserted claims of the City of San Francisco is also again
shown by the fact that appeals were taken therefrom to this Court
by both the city and the United States. Pending these appeals,
Congress passed an act to quiet titles to the land within the city
limits, which was approved March 6, 1866, 14 Stat. c. 13, p. 4. At
that time the limits of the city were coterminous with those of the
county, and embraced the whole of the four square leagues to which
the city asserted rights. The act of 1864, it must be remembered,
merely released the right and title of the United States to the
lands within the then corporate limits of the City of San
Francisco, as defined in the charter of April 15, 1851, which was
much less than the four square leagues.
By the act of 1866 the United States relinquished and granted to
the city all the land embraced in the decree of the circuit court
subject to the reservations and exceptions designated in that
decree, and upon the following further conditions and trusts,
viz.:
"That all the said land, not heretofore granted to said city,
shall be disposed of and conveyed by said city to parties in the
bona fide actual possession thereof, by themselves or
tenants, on the passage of this act, in such quantities and
upon
Page 165 U. S. 704
such terms and conditions as the legislature of the State of
California may prescribe, except such parcels thereof as may be
reserved and set aside by ordinance of said city for public
uses."
The act, moreover, provided that such relinquishment and grant
should not interfere with or prejudice any valid adverse right or
claim, if such exist, to said land or any part thereof, whether
derived from Spain, Mexico, or the United States, or preclude a
judicial examination thereof.
It will thus be seem that the act of 1866 again asserted the
power of Congress over the entire subject by materially modifying
the decree of the circuit court of the United States, inasmuch as
it placed restrictions on the power of disposition of the lands,
and practically imposed a trust, not only upon the City of San
Francisco, but upon the legislature of the State of California. In
consequence of the passage of this act, the appeals of both the
city and the United States which were pending in this Court were
withdrawn.
Townsend v.
Greeley, 5 Wall. 326;
San Francisco v. Le
Roy, 138 U. S.
667.
Subsequent to the passage of the act of Congress, an act was
passed by the Legislature of California known as the "San Francisco
Outside Land Bill," but it was vetoed by the governor of
California, because, in his opinion, it was in conflict with the
act of Congress of March 2, 1866. (Dwinelle, App. p. 352.)
We are now brought to consider the last proposition advanced by
the city, which is:
Third.
That the interpretation of the Spanish law upon which
the city bases its right is sanctioned by previous adjudications of
this Court.
The decisions relied upon are
Townsend
v. Greeley, 5 Wall. 326;
Grisar v.
McDowell, 6 Wall. 363;
Brownsville v.
Cavazos, 100 U. S. 138, and
San Francisco v. Le Roy, 138 U. S.
664.
An examination, however, of these cases, will show that they
cannot be held to sustain the proposition.
Townsend v. Greeley came to this Court on error to a
judgment of the Supreme Court of California, affirming a judgment
in favor of Greeley, who had acquired a title to land
Page 165 U. S. 705
within the limits confirmed to San Francisco by the board of
land commissioners, under an ordinance of the city. The defendant
claimed title under a sale on execution upon a judgment recovered
against the city. The rights of both parties therefore depended
upon the existence of a title in the city, and the only question at
issue between them was which had derived the paramount right from
the city, the defendant disputing the possession which plaintiff
claimed had been in his grantors. Under this state of the record,
it was, of course, absolutely impossible for the question to arise
whether or not there was title in the city to the land in dispute,
or the extent of land which the title of the city, whatever it was,
covered. The sole question presented in this Court was whether the
lower court had committed error in rejecting certain proffered
evidence, and the determination of this question involved the
ascertainment of whether the title which was in the city was of
such a character as could be seized and sold under execution. In
deciding this question, the opinion, while referring to the facts
out of which the controversy arose, contains the statement (p. 336)
that
"the laws and ordinances of Spain for the settlement and
government of her colonies on this continent provided for the
assignment to pueblos or towns, when once established and
officially recognized, for their use and the use of their
inhabitants, of four square leagues of land."
But this language was not material to the question before the
court, and was not therefore a decision settling the matter.
The decision in
Grisar v. McDowell, supra, was, in fact
a denial of any right in San Francisco by operation of law, Spanish
or Mexican, to four square leagues of land. The case involved a
controversy between one holding a title under San Francisco and an
officer of the United States in possession of a military
reservation within the four square leagues. The court simply
decided that, conceding some right or interest or claim in the city
to land, it was subject to appropriation by the government for
public uses. In a general reference to the claims of the city,
there are dicta to the effect that, by the laws of Spain, a pueblo
acquired some right in four square leagues
Page 165 U. S. 706
of land, but the decision did not necessarily determine that
question, as it was not before the court.
In
Brownsville v. Cavazos, supra, the question at issue
was the title to land of Brownsville derived under Mexican laws.
The action was ejectment by the City of Brownsville, as the
successor in the United States of the Mexican Town of Matamoras,
claiming title to a tract of land, to obtain title to which the
City of Matamoras had instituted proceedings in expropriation or
condemnation. The decision was that the City of Matamoras had never
acquired title to the land, because compensation had not been made,
and that Brownsville consequently possessed no title. It is obvious
that, in the determination of that question, the rights of pueblos,
under Spanish laws, were not involved. It follows therefore that
the reiteration, in the course of the opinion in that case, of the
dicta found in the previous cases on the subject of the rights of
pueblos under Spanish law, cannot be treated as authoritative on
that question.
In
San Francisco v. Le Roy, supra, the object of the
bill filed was to quiet the title of complainant, as against the
City of San Francisco, to certain lands within the city limits.
There was no controversy as to the extent of land in which a
Spanish pueblo acquired some right by its establishment, nor was
the question considered by the court. In reciting the history of
the litigation over the San Francisco claim to four square leagues,
the learned justice who delivered the opinion of the court did not
directly refer to the rights acquired under Spanish laws, but
contented himself with an allusion to the rights which a Mexican
pueblo acquired in lands by operation of Mexican laws.
In passing from this brief review of the decisions of this Court
relied on by the City of Santa Fe, we note the reference to the
case of
Lewis v. San Antonio, 7 Tex. 288. In that case,
the court found that there had been an express grant of six square
leagues to the predecessor of the Town of San Antonio, and refuted
the attempt to destroy the express grant on the ground that as, by
operation of law, towns were entitled to four leagues, the express
grant of six was void, by saying that
Page 165 U. S. 707
no law had been referred to supporting such an assertion. The
implication from this adjudication refutes, rather than supports
the claim here contended for.
But, in concluding the consideration of the foregoing
contentions advanced by the City of Santa Fe, and which are shown
by the review which we have made to be without merit, we will now
demonstrate that the right to recover the land here claimed is
without foundation on other and distinct grounds.
It cannot be doubted that, under the law of Spain, it was
necessary that the proper authorities should particularly designate
the land to be acquired by towns or pueblos before a vested right
or title to the use thereof could arise. Thus, by law 7, book 4,
Tit. 7, of the Recopilacion, which regulated the mode of
distribution of a tract granted by agreement to a founder of a
settlement, it was provided as follows (2 White, New Recop. p.
46):
"The tract of territory granted by agreement to the founder of a
settlement shall be distributed in the following manner: they
shall, in the first place, lay out what shall be necessary for the
site of the town and sufficient liberties (exidos), and abundant
pasture for the cattle to be owned by the inhabitants, and as much
besides for that which shall belong to the town (propios). The
balance of the tract shall then be divided into four parts; one to
be selected by the person obligated to form the settlement, and the
remaining three parts to be divided in equal portions among the
settlers."
Law 11 of the same book and title provides also (2 White, New
Recop. p. 46):
"The lots shall be distributed among the settlers by lot,
beginning with those adjoining the main square, and the remainder
shall be reserved to us, to give, as rewards, to new settlers or
otherwise,
according to our will, and we command that a
plan of the settlement be always made out."
And law 12 of the same book and title declares (2 White, New
Recop. p. 47):
"We command that no houses be erected within the distance of
three hundred paces from the walls or breastworks of
Page 165 U. S. 708
the town, this being necessary for the good of our service and
for the safety and defense of the towns, as provided with regard to
castles and fortresses."
And it is well to notice at this point that Santa Fe was a
fortified town. It possessed a castle, and not only the land upon
which it was erected but a considerable extent of land surrounding
it was, in any view, a part of the public domain, and passed as
such to the United States.
Mitchel v. United
States, 15 Pet. 52,
40 U. S.
89-91.
The Spanish understanding of the prerequisite designation is
well illustrated by the following passages from Elizondo's Practica
Universal Forense.
At vol. 3, p. 109, he says:
"The Kings, the fountains of jurisdictions, are the owners of
all the
terminos situated in their lingdom, and, as such,
can donate them, divide or restrict them, or give any new form to
the enjoyment thereof, and hence it is that the pueblos cannot
alienate their
terminos and
pastos without
precedent royal license and authority."
And at vol. 5, p. 226, he says:
"There is nothing whatever designated by law as belonging to
towns other than that which, by royal privilege, custom, or
contract between man and man, is granted to them, so that although
there be assigned to the towns at the time of their constitution a
territorio and
pertinencias, which may be common
to all the residents without each one having the right to use them
separately, it is a prerogative reserved to the princes to divide
the
terminos of the provinces and towns, assigning to
these the use and enjoyment, but the domain remaining in the
sovereigns themselves."
Considering this subject, this Court, speaking through MR.
JUSTICE FIELD in
Grisar v.
McDowell, 6 Wall. 373, said:
"These laws provided for the assignment to the pueblos, for
their use and the use of their inhabitants, of land not exceeding
in extent four square leagues. Such assignment was to be made by
the public authorities of the government upon the original
establishment of the pueblo, or afterwards upon the petition of its
officers or inhabitants, and the land was to
Page 165 U. S. 709
be measured off in a square or prolonged form, according to the
nature and condition of the country. All lands within the general
limits stated, which had previously become private property or were
required for public purposes, were reserved and excepted from the
assignment."
"Until the lands were thus definitely assigned and measured off,
the right or claim of the pueblo was an imperfect one. It was a
right which the government might refuse to recognize at all or
might recognize in a qualified form. It might be burdened with
conditions and it might be restricted to less limits than the four
square leagues, which was the usual quantity assigned."
Moreover, the general theory of the Spanish law on the subject
indicates that even after a formal designation, the control of the
outlying lands, to which a town might have been considered
entitled, was in the King, as the source and fountain of title, and
could be disposed of at will by him, or by his duly authorized
representative, as long as such lands were not affected by
individual and private rights. This is shown by the quotation from
Elizondo already made. The provisions of law 14, Tit. 12, bk. 4, of
the Recopilacion (2 White, New Recop, p. 52), which is reproduced
in the margin, illustrates the absolute control thus exercised by
the King of Spain over the subject. [
Footnote 2]
Page 165 U. S. 710
The existence of this power of control and disposition as to
municipal lands in the supreme Spanish authority finds a further
and cogent exemplification in the decree of the Cortes of January
4, 1813, referred to by Hall in his Mexican Law, p. 45. A like
power, it is to be inferred, is now asserted to be lodged in, and
has actually been exercised by, the general government of Mexico.
The Constitution of Mexico of February 5, 1857, which went into
effect September 16th of the same year, prohibited the acquisition
or administration of real property by civil or ecclesiastical
corporations without any other exception than the buildings
intended immediately or directly for the service or purpose of the
institutions, and hence arose the necessity for the abolition of
municipal commons (exidos) in order to comply with this
constitutional provision. In discussing the subject, Orozco, a
Mexican writer, in his Legislation and Jurisprudence on Public
Lands (vol. 2, p. 1107), after pointing out the distinction between
pueblo sites (fundo) and the ejidos or commons of a pueblo,
says:
"The municipal commons (ejidos), as has been seen, were excluded
by the laws abolishing mortmain; but, in view of the aforesaid
constitutional precept, it was logical to infer that the municipal
commons (ejidos) passed to the control of the federal treasury, as
successor by subrogation of the property of corporations, and with
so much the more reason since, recalling the origin of the
municipal commons (ejidos) as soon as their existence became
impossible, nothing is more natural and consequential than that
those lands should revert to the dominion of him who granted them
for the common use of the residents of the settlements."
After reciting the fact that, in order to "reconcile respect for
the supreme law with the interest of these pueblos," the
Page 165 U. S. 711
general law, after fixing the limits of the pueblos and
dedicating to public uses the cemeteries and other public places
therein, directed that the remainder of the land should be
distributed among the fathers or heads of families. The author
adds:
"In this way it has been carried into effect, titles signed by
the President of the republic in favor of those residents of the
pueblos being issued
gratis by the department of public
works, all of which proves that the federal government, and not the
common councils, nor any other authority, is that which, as
competent in the matter, graciously grants the disposable part of
the ancient municipal commons (ejidos)."
It was doubtless a consideration of this state of the Spanish
law and the unquestioned power lodged in the King of Spain to
exercise unlimited authority over the lands assigned to a town, and
undisposed of, and not the subject of private grant (to all of
which rights the United States succeeded, as successor of the King
of Spain and the government of Mexico), which caused Congress, in
enacting the laws of 1864 and 1866, to carve out of the claim of
San Francisco such land for public purposes as it saw fit, to
authorize further reservations to be made within a period of one
year, and to subject the lands relinquished to specific trusts
imposed not alone upon the municipality of San Francisco, but also
upon the General Assembly of California. The power thus asserted by
the act was not new, but conformed to and accorded with the
practice of the government from the beginning. Thus, in 1812,
Congress, by an Act approved June 13th of that year, 2 Stat. 784,
for the settlement of claims to land in the Territory of Missouri
(where rights under the laws of Spain existed), provided, by
section 1, for the survey of the boundaries of towns, and for the
confirmation to individuals of such lots therein covered by actual
possession, and for the confirmation of such commons to the towns
as had been actually possessed and used by the towns. So far as all
the other commons, not so actually possessed, was concerned, and
the lots within the town not possessed and claimed by individuals,
the absolute right to dispose of the same was asserted by Congress,
and a
Page 165 U. S. 712
portion thereof was dedicated by that body to public uses. The
first section is reproduced in the margin, [
Footnote 3] and the second section, accomplishing the
results just indicated, reads as follows:
"SEC. 2.
And be it further enacted that all town or
village lots, out lots, or common field lots, included in such
surveys, which are not rightfully owned or claimed by any private
individuals, or held as commons belonging to such towns or
villages, or that the President of the United States may not think
proper to reserve for military purposes, shall be, and the same are
hereby reserved for the support of schools in the respective towns
and villages aforesaid,
provided that the whole quantity
of land contained in the lots reserved for the support of schools
in any one town or village shall not exceed one-twentieth part of
the whole lands included in the general survey of such town or
village. "
Page 165 U. S. 713
The same course was adopted by Congress in the Act of February
8, 1827, c. 9, 4 Stat. 202, providing for the settlement and
confirmation of claims to lands in the former Spanish domain of
East Florida. The third section of that act, confirming to the City
of St. Augustine certain lands, is as follows:
"SEC. 3.
And be it further enacted that the commons in
the City of St. Augustine be, and the same are hereby, confirmed to
the corporation of said city, to the same extent that they were
used, claimed and enjoyed under the Spanish government. And the
parochial church and burying ground in possession of the Roman
Catholic congregation are confirmed to them, and the old Episcopal
Church lot is hereby relinquished and confirmed to the Incorporated
Episcopal Church of St. Augustine, provided always, that the grants
in this section specified shall forever inure to the purposes for
which they are confirmed, and shall not be alienated without the
consent of Congress."
So, also, it may well be supposed that it was upon this aspect
of the imperfect nature of right in land claimed by towns in
territory formerly owned by Spain and Mexico, and the long
established construction of such rights evidenced by the foregoing
acts of Congress, which caused this Court, speaking through MR.
JUSTICE FIELD in
Grisar v. McDowell, supra, to say (p.
73 U. S.
373):
"Even after the assignment, the interest acquired by the pueblo
was far from being an indefeasible estate, such as is known to our
laws. The purposes to be accomplished by the creation of pueblos
did not require their possession of the fee. The interest . . .
amounted to little more than a restricted and qualified right to
alienate portions of the land to its inhabitants for building or
cultivation, and to use the remainder for commons, for pasture
lands, or as a source of revenue, or for other public purposes. And
this limited right of disposition and use was in all particulars
subject to the control of the government of the country."
How completely this language applies to the case here presented
is demonstrated when it is considered that there is no
Page 165 U. S. 714
proof of a single act of ownership by the city, either in its
own right or by anybody else, claiming to hold under it, and that
it is asserted in the brief of the counsel for the government, and
not denied, that practically every foot of the area of four square
leagues now claimed by the city is covered by grants made by the
governors of the province of New Mexico to others. Whether these
grants be valid or not, of course, is not before us for
consideration.
An inchoate claim, which could not have been asserted as an
absolute right against the government of either Spain or Mexico and
which was subject to the uncontrolled discretion of Congress, is
clearly not within the purview of the Act of March 3, 1891, c. 539,
creating the Court of Private Land Claims, 26 Stat. 854, and
therefore is beyond the reach of judicial cognizance.
The duty of protecting imperfect rights of property under
treaties such as those by which territory was ceded by Mexico to
the United States in 1848 and 1853, in existence at the time of
such cessions, rests upon the political, and not the judicial,
department of the government.
Le Bois v.
Bramall, 4 How. 449,
45 U. S. 461;
Ainsa v. United States, 161 U. S. 222.
To the extent only that Congress has vested them with authority to
determine and protect such rights can courts exercise jurisdiction.
Where, therefore, a tribunal of limited jurisdiction is created by
Congress to determine such rights of property, a party seeking
relief must present for adjudication a case clearly within the act,
or relief cannot be given.
United States v.
Clarke, 8 Pet. 436,
33 U. S.
444.
Section 13 of the act provides that all the proceedings and
rights theretofore referred to in the act shall be conducted and
decided subject to certain provisions therein enumerated, and to
the other provisions of the act. Among the provisions contained in
section 13 is the following:
"First. 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 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
Page 165 U. S. 715
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 said date
already complete and perfect."
By section 7 of the act, the court was also required, in
reaching a conclusion as to the validity of the claim, to be guided
by the laws of nations, the stipulations of the treaties concluded
between the United States and the Republic of Mexico of February 2,
1848, and December 30, 1853.
Although section 6 of the act also authorized the adjudication
by the Court of Private Land Claims of all claims which the United
States
"are bound to recognize and confirm by the treaties of cession
of said country by Mexico to the United States, which at the date
of the passage of this act have not been confirmed by act of
Congress or otherwise finally decided upon by lawful authority, and
which are not already complete and perfect,"
the meaning of the words "complete and perfect" is to be derived
by considering the context, and not by segregating them from the
previous part of the sentence, exacting that the claim must be one
which the United States were bound to recognize and confirm by
virtue of the treaty. These words are, moreover, controlled by the
mandatory requirements of section 13.
Indeed, the controlling nature of the provisions of section 13
of the act of 1891 was considered and settled by this Court in
Ainsa v. United States, 161 U. S. 208,
where, speaking by MR. CHIEF JUSTICE FULLER, it was said:
"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."
Although the act of 1891, in section 11, authorized a town
Page 165 U. S. 716
presenting a claim for a grant to represent the claims of
lotholders to lots within the town, this provision does not
override the general requirements of the statute as to the nature
of the claim to title which the court is authorized to confirm. The
difference between the act of 1891 and the California act of 1851,
hitherto referred to, accentuates the intention of Congress to
confine the authority conferred by the later act to narrower limits
than those fixed by the act of 1851. The act of 1851 authorized the
adjudication of claims to land by virtue of any "right" or "title"
derived from the Spanish government, and conferred the power in
express language on the board and court to
presume a grant in
favor of a town. The act of 1891 not only entirely omits
authority to invoke this presumption, but, as we have seen,
excludes by express terms any claim the completion of which
depended upon the mere grace or favor of the government of Spain or
Mexico, and of the United States as the successor to the rights of
those governments.
Nor do certain expressions contained in the opinion in
San
Francisco v. Le Roy, 138 U. S. 656, and
Knight v. United States Land Association, 142 U.
S. 161, when properly understood, conflict with the
foregoing conclusions. Those cases dealt with the rights of San
Francisco after they were recognized by Congress, and to the extent
only of that recognition. The language referred to therefore simply
amounted to saying that, as Congress had to a certain extent
recognized the claim of San Francisco, to the limit of this
recognition, and no further, the rights of that city would be
treated as relating back and originating from the nature of the
claim presented, and which in part, through the grace of Congress,
had been allowed. In the case at bar, we are not concerned with
considering or determining to what period of time or source of
right the claim would relate if it were found to be within the
reach of the provisions of the act of 1891.
The petition is framed upon the theory merely of a right to four
square leagues, vested in the city by operation of law, and as the
record contains no proof whatever as to the possessory claims of
lotholders in the City of Santa Fe, or as to the
Page 165 U. S. 717
actual possession enjoyed by that city of public places, these
latter rights, if any, as well as the asserted title of the city to
the swamp tract to which reference has been made in the course of
this opinion, are not to be controlled by the rejection now made of
the pretensions of the city to a title to the four square leagues
tract asserted to have been acquired by operation of Spanish
laws.
The decree below is reversed, and the cause remanded with
instructions to dismiss the petition.
MR. JUSTICE BREWER concurs in the result.
[
Footnote 1]
"SEC. 14.
And be it further enacted that the provisions
of this act shall not extend to any town lot, farm lot, or pasture
lot held under a grant from any corporation or town to which lands
may have been granted for the establishment of a town by the
Spanish or Mexican government, or the lawful authorities thereof,
nor to any city, or town, or village lot, which city, town, or
village existed on the seventh day of July, eighteen hundred and
forty-six; but the claim for the same shall be presented by the
corporate authorities of the said town, or where the land on which
the said city, town, or village was originally granted to an
individual, the claim shall be presented by or in the name of such
individual, and the fact of the existence of the said city, town,
or village on the said seventh July, eighteen hundred and
forty-six, being duly proved, shall be
prima facie
evidence of a grant to such corporation, or to the individual under
whom the said lotholders claim, and where any city, town, or
village shall be in existence at the time of passing this act, the
claim for the land embraced within the limits of the same may be
made by the corporate authority of the said city, town. or
village."
[
Footnote 2]
Laws 14, Tit. 12, bk. 4, of Recopilacion:
"Whereas we have fully inherited the dominion of the Indies, and
whereas, the waste lands and soil which were not granted by the
kings, nor predecessors, or by ourselves, in our name, belong to
our patrimony and royal crown, it is expedient that all the land
which is held without just and true titles be restored, as
belonging to us,
in order that we may retain, before all things
all the lands which may appear to us and to our viceroys, audiences
and governors, to be necessary for public squares, liberties
(exidos), reservations (propios), pastures and commons, to be
granted to the villages and councils already settled, with due
regard as well to their present condition as to their future state,
and to the increase they may receive, and after distributing
among the Indians whatever they may justly want to cultivate, sow
and raise cattle, confirming to them what they now hold, and
granting what they may want besides, all the remaining land may be
reserved to us, clear of any incumbrance, for the purpose of being
given as rewards, or disposed of according to our pleasure: for all
this, we order and command the viceroys, presidents and pretorial
audiences, whenever they shall think fit, to appoint a sufficient
time for the owners of lands to exhibit before them and the
ministers of their audiences, whom they shall appoint for that
purpose, the titles to lands, estates, huts, and caballerias, who,
after confirming the possession of such as hold the same by virtue
of good and legal titles, or by a just prescription, shall restore
to us the remainder, to be disposed of according to our
pleasure."
[
Footnote 3]
Section 1, Act June 13, 1812, 2 Stat. 784:
"That the rights, titles and claims, to town or village lots,
out lots, common field lots and commons, in, adjoining and
belonging to the several towns or villages of Portage des Sioux,
St. Charles, St. Louis, St. Ferdinand, Villago a Robert,
Carondelet, St. Genevieve, New Madrid, New Bourbon, Little Prairie
and Arkansas, in the Territory of Missouri, which lots have been
inhabited, cultivated, or possessed, prior to the twentieth day of
December, one thousand eight hundred and three, shall be and the
same are hereby confirmed to the inhabitants of the respective
towns or villages aforesaid, according to their several right or
rights in common thereto, provided that nothing herein contained
shall be construed to affect the rights of any persons claiming the
same lands, or any part thereof, whose claims have been confirmed
by the board of commissioners for adjusting and settling claims to
land in the said territory. And it shall be the duty of the
principal deputy surveyor for the said territory as soon as may be,
to survey, or cause to be surveyed and marked (where the same has
not already been done, according to law) the out boundary lines of
the several towns or villages so as to include the out lots, common
field lots and commons, thereto respectively belonging. And he
shall make out plats of the surveys, which he shall transmit to the
surveyor general, who shall forward copies of the said plats to the
Commissioner of the General Land Office, and to the recorder of
land titles; the expenses of surveying the said outboundary lines
shall be paid by the United States out of the moneys appropriated
for surveying the public lands, provided that the whole expense
shall not exceed three dollars for every mile that shall be
actually surveyed and marked."