The plaintiff's claimed as heirs and legal representatives of
the original grantees under a grant alleged to have been made March
24, 1840, by "the prefect or superior political chief of the
district of Bernalillo," in the Republic of Mexico. There was no
evidence that the grant of the prefect ever received the sanction
or approval of the governor, the ayuntamiento, or other superior
authority of the Mexican Republic.
Held that it was beyond
the power of the prefect alone to make the grant in question.
Possession of land so granted after the date of the Treaty of
Guadalupe Hidalgo, however exclusive and notorious, cannot be
regarded as an element going to make up a perfect title.
This was a petition by Crespin and about forty others for the
confirmation of what is commonly known as the "San Antonito Grant,"
situated in Bernalillo County, New Mexico, and alleged to contain
32,000 acres.
Plaintiffs claimed as the hers and legal representatives of the
original grantees, and set forth in their petition that on March
24, 1840, the Republic of Mexico, through Antonio Sandoval,
"the prefect or superior political chief of the district of
Bernalillo, thereunto duly authorized by the laws, usages, customs,
superior orders, and decrees of the said republic, or of its duly
constituted and competent authorities,"
granted and delivered possession of this tract of land unto the
grantees therein named. That the original grant or expediente of
title remained in the office, and formed a part of the archives of
the said prefect, and that an official copy or testimonio was at
the time delivered to the grantees, as a complete and final title
in fee.
That the petitioners were unable to find the original
expediente, which, with a large part of the other public archives,
was lost, destroyed, or stolen, and that the official copy, or
testimonio, has also been stolen, but that, while the expediente
was in the archives of the prefecture, a testimonio, or
Page 168 U. S. 209
true copy, thereof, was made by one Rumaldo Chaves for his own
use, and that such copy was prior to 1846 transferred and delivered
by said Chaves, by endorsement thereon, unto Gaspar Atencio, one of
the grantees of the original grant, for his uses and purposes, and
has ever since remained in his possession.
The petitioners further alleged, upon information and belief,
that the grant was finally confirmed and approved by Gov. Manuel
Armijo and the departmental assembly, and that by virtue thereof,
an allotment was made in severalty to each of the grantees, and
juridical possession given to such grantees by Jose Trujillo, in
accordance with the decree of the prefect and the laws then
competent and in force in said territory, and that the grantees
since then have been in open and notorious possession of the tract.
The remaining allegations of the petition are immaterial.
Upon the trial of the case, plaintiffs offered in evidence a
petition addressed to "Senior Prefect Don Antonio Sandoval" by
"Juan Jose Garcia and Gaspar Atencio, residents of the demarcation
of Albuquerque," stating that they and their constituents, finding
themselves without tillable land by which to subsist,
"and there being back of the Sandia Mountain a tract of land
called San Antonito, the fertility of which and the increase of
whose waters all invite its cultivation, by this means the
commendable promotion of agriculture and the progressive benefit of
the petitioners will be accomplished,"
they inform the prefect
"that it is fifteen years, a little more or less, since this
tract was donated to Cristobal Jaramillo, deceased; yet, moreover,
in all this space of time, said land has not been cultivated at
all; and, if this has been forfeited in accordance with our laws,
we humbly beg your honor to be pleased to grant us what we ask, as
it is without prejudice to a third party."
In compliance with this petition, the prefect, signing himself
simply "Sandoval," made an order, under date of March 21, 1840,
that the petition be transmitted to the justice of the peace of Los
Ranchos to report in detail the nature of the land and the need of
the petitioners.
Page 168 U. S. 210
On the following day, Jose Trujillo, the justice, filed his
report, stating, after having fully informed himself as to the
nature of the lands, that "it is fitted for agriculture, very
pleasing, and very delightful for a life of tranquility, very
favorable to everything for a most comfortable living," and that
the petitioners are in need of landed property, with the exception
of three persons named, who are known to have land, but do not
count upon it, because they are in debt, and have it secured by
said lands, and that all the others have not such property.
Upon this report Sandoval made the following decree:
"Barelas,
Mar. 24, 1840"
"One of the most commendable and beneficial things to a people
being the promotion of agriculture, let this petition be
transmitted to the justice of the peace of Los Ranchos, in order
that with all the customary formalities he give the possession
solicited by the parties in interest, without prejudice to a third
party, and only for cultivation the lands necessary, leaving free
the pastures and watering places, which under no circumstances
ought to be interfered with; and, after this is done, he shall make
a full report to this prefecture."
"Sandoval"
"Francisco Sarracino,
Secretary"
In compliance with this decree, Trujillo, justice of the peace,
reported that he had given juridical possession of the lands to the
petitioners and their associates to the number of twenty-seven, who
were each given one hundred varas, except two of the petitioners,
who were given one hundred and fifty, in the usual form of livery
of seisin under Spanish grants.
The testimonio, or official copy, of these papers, was not made
by the secretary of the prefect Sandoval, but by Rumaldo Chaves,
the clerk of the justice of the peace Trujillo, and seems to have
been made for the personal use of Chaves, and afterwards
transferred by endorsement to Gaspar Atencio, who appears, from the
document, to have been one of the leading petitioners, and
received, according to the allotment, one hundred and fifty
varas.
Page 168 U. S. 211
Plaintiffs next offered in evidence the following
hijuela, or certificate of allotment, executed April 11,
1840, by Jose Trujillo, purporting to show an allotment of one
hundred varas of land at San Antonito to Vicente Samora, under the
decree of the prefect Sandoval:
"The citizen Jose Trujillo, justice of the peace of the
jurisdiction of Los Ranchos De Albuquerque, does hereby certify in
form of law that one hundred varas of land at San Antonito were
donated to Vicente Samora in accordance with and as stated in the
general grant made by me, the said justice of the peace, by virtue
of the decree of March 24th made by the prefect Don Antonio
Sandoval. The foregoing certificate is given at the ranchos this
11th day of April, 1840, I signing it with my two attending
witnesses, to which I certify."
"Jose Trujillo [Rubric]"
"Attending witness:"
"Rumaldo Chavez [Rubric]"
"Attending witness:"
"Pablo Roman Sisneros [Rubric]"
Plaintiffs further offered to refer to other cases and documents
for the purpose of showing that other grants had been made by
prefects, which were recognized and confirmed by the proper Mexican
authorities, and also that several of such grants had been
confirmed by the Congress of the United States.
These documents were all objected to by the government, and were
admitted subject to these objections. Some further explanatory oral
testimony was introduced in support of petitioner's claim, but no
evidence was offered on behalf of the government.
Upon this state of facts, the court delivered judgment
dismissing the petition and rejecting the grant, whereupon the
plaintiffs appealed to this Court.
Page 168 U. S. 212
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The principal question urged upon the attention of the Court in
this case is whether, under the laws of Mexico, as they existed in
1840, it was within the power of a prefect to make a grant of
public lands.
In endeavoring to ascertain what were the laws of Mexico at any
particular time, of which we are bound to take judicial notice,
Fremont v. United
States, 17 How. 542,
58 U. S. 557;
Romero v. United
States, 1 Wall. 721, we are somewhat embarrassed by
the frequency with which the government was changed -- usually be
revolutionary violence -- between the time the republic gained its
independence, in 1821, and the Treaty of Guadalupe Hidalgo, in
1848, under which the northern provinces of Mexico were ceded to
the United States. These changes were sometimes accompanied by
decrees annulling the acts of previous governments, cancelling
grants, and putting new regulations in force with respect to the
disposition of public lands. That these difficulties are of
longstanding is evident from the comments of Chief Justice Marshall
in the case of
Soulard v. United
States, 4 Pet. 511, in which the court announced
itself as unable to form a satisfactory judgment by reason of its
inability to obtain proper information with regard to the laws and
principles upon which the transfer of Spanish titles depended, and
therefore postponed the final disposition of the case until such
information could be obtained.
In view of this and similar difficulties, this Court, as early
as 1832, in
United States v.
Arredondo, 6 Pet. 691, laid down as a general
proposition that the grant itself was
prima facie evidence
of its own validity, and that it would be presumed to have been
regularly issued until the contrary appeared, or such reasons were
offered for doubting its authenticity as were sufficient in law to
rebut the legal presumption. To
Page 168 U. S. 213
the same effect are
United States v.
Clark, 8 Pet. 436;
United
States v. Percheman, 7 Pet. 51;
Strother
v. Lucas, 12 Pet. 410,
37 U. S. 437;
Reynolds v. West, 1 Cal. 322, 326;
Jones v.
Garza, 11 Tex. 186, 207.
The courts of California have carried this principle so far as
to hold, though apparently with some fluctuation of opinion, that a
grant of a pueblo lot made by an alcalde raises a presumption that
the alcalde was a properly qualified officer; that he had authority
to make the grant, and that the land was within the boundaries of
the pueblo.
Reynolds v. West, 1 Cal. 322;
Cohas v.
Raisin, 3 Cal. 443;
Hart v. Burnett, 15 Cal. 530;
Payne v. Treadwell, 16 Cal. 220;
Leese v. Clark,
18 Cal. 535;
Donner v. Palmer, 31 Cal. 500.
In considering their methods of disposing of public lands, this
Court has had frequent occasion to uphold the validity of grants
made by the governors of the Spanish and Mexican provinces, who
appear to have been sometimes also called "Political Chiefs."
Indeed, under the regulations for the colonization of the Mexican
territories of November 21, 1828, the political chiefs were
expressly authorized to grant the public lands of their respective
territories. Reynolds' Land Laws 141;
United
States v. Workman, 1 Wall. 745,
68 U. S. 761;
Hornsby v. United
States, 10 Wall. 224,
77 U. S. 231;
Vanderslice v. Hanks, 3 Cal 27;
Leese v. Clark, 3
Cal. 17, 18 Cal. 535, 546,
but see Jones v. Garza, 11 Tex.
186. A similar power seems also to have been vested in the Spanish
intendants. Reynolds' Land Laws 59-60;
United
States v. Clark, 8 Pet. 436,
33 U. S.
452.
Prefects were functionaries well known in the Roman law, and
under the empire were clothed with extensive powers, both judicial
and administrative. With the decline of the empire, they seem to
have lost their importance, and to have finally disappeared; but,
after remaining in abeyance for some hundreds of years after its
fall, the office was revived in the eighth year of the French
republic (1800), and bestowed upon the heads of the departments
into which the country had been divided by the national assembly in
1790. In the performance
Page 168 U. S. 214
of their duties they were aided by a council of prefecture. The
prefect was charged with the administration of local affairs, and
was practically the representative of the central government in
public matters. The title was carried into several states, whose
legislation was framed upon the model of the Code Napoleon, but,
until the establishment of the republic, was apparently unknown in
Mexico. It seems to have been recognized, however, prior to 1836,
since by the constitutional law or decree of December 29th of that
year, defining the powers of the president and governors, there was
given to the latter the authority
"to appoint the prefects, to approve the appointment of the
sub-prefects of the department, to confirm that of the justices of
the peace, and to remove any of these officials."
Reynolds' Land Laws 205.
By the law of March 20, 1837, for regulating provisionally the
interior governments of the departments, it is provided by article
one that
"the interior government of the departments shall be in charge
of the governors, departmental councils (juntas), prefects,
sub-prefects, common councils, alcaldes, and justices of the
peace;"
that it shall be the duty of the governors to appoint the
prefects, etc. The power of the prefects is thus defined (article
77):
"They shall regulate administratively and in conformity with the
laws, the distribution of the common lands (tierras comunes) in the
towns of the district, provided there is no litigation pending with
regard to them, the right being reserved to the parties in interest
to apply to the governor, who, without further appeal, shall decide
what is most proper, with the concurrence of the departmental
council (junta)."
Reynolds' Land Laws 221. This is the only act to which our
attention is called which defines their functions.
It is difficult to say exactly what is meant by the power "to
regulate administratively" the distribution of the common lands in
the towns of the district. But it would not seem to include the
power to make grants of public lands generally, though it might
have justified in this case the special allotment (hiyuela) to
Vicente Samora, had it been made by the prefect. The power given to
the governor to
Page 168 U. S. 215
make grants of public lands, which was expressly given by the
regulations of November 21, 1828 (though the constitutional decrees
of 1836 and 1837 were silent upon the subject), taken in connection
with the limited powers conferred upon the prefects by the law of
March 20, 1837, apparently preclude the idea that the more general
power of granting public lands was intended to be conferred upon
the latter; in other words, the limited authority conferred upon
them by Article 77 repels the inference of more extensive powers
which had theretofore been vested in the governors, and in the
governors alone.
Plaintiffs' counsel offered to show in this connection that
other grants had been made by prefects, which had been recognized
and confirmed by the proper Mexican authorities, and that several
such grants had been confirmed by the Congress of the United
States, but they were not regarded by the court below as sufficient
to establish a general custom to recognize grants made by prefects
as valid and legal. Indeed, the power given to prefects to regulate
administratively the distribution of the common lands would seem to
presuppose a prior grant to the pueblo, made by a higher authority,
and to have been intended merely to authorize the prefect to make
distribution of such common lands among the inhabitants of the
pueblo.
The only case we have been able to find in which the power of
prefects to make grants of public lands is discussed is that of
Ohm v. San Francisco, 92 Cal. 437. In that case, the
complaint alleged that the State of California was prior to July
13, 1848, a political department of the Republic of Mexico, and was
subdivided into pueblos, constituting political municipalities,
supplied with such officials as the republic or governor chose to
appoint; that such officers could grant and distribute lands of the
municipalities; that the pueblo of Yerba Buena, or San Francisco,
was one of such municipalities, and was provided with a prefect
appointed by the republic and the governor of California, who was
empowered, among other things, to make a grant and distribution of
lands to private persons in fee within his district and said
municipality. It seems that the grant in this case had been
Page 168 U. S. 216
approved by the governor of the department by virtue of his
superior power to grant vacant lots within the boundaries of the
republic, and had been subsequently confirmed by the district
court.
The rarity of the question involved, and the special familiarity
of the Supreme Court of California with Spanish and Mexican land
grants, will justify a somewhat lengthy transcription from its
opinion concerning the power of prefects. "We cannot find," said
the court on page 451,
"in any of the laws or ordinances of Spain and Mexico to which
we have been referred, any authority conferred upon prefects to
make grants in fee of the pueblo lands. It is not contained in the
decree of the Spanish Cortes of January 4, 1813, nor in the plan of
Pitic, nor in the Mexican law of colonization of 1824, nor in the
regulations of 1828, nor, we think, in the law of March 20, 1837,
to which the prefect himself refers as the source of his authority.
The clause of this act, cited and relied on by the appellant, is
given in the original Spanish, and in translation, at page 314,
addenda, Dwinelle's Colonial History of San Francisco. In terms, it
merely authorizes the prefects in their respective districts to
'regulate executively' the distribution of the
common
lands of the pueblos, provided there are no law suits pending in
the courts concerning them, saving a right of appeal to the
governor. The law writers do not agree in their construction of
this article. Dwinelle thinks it conferred authority to make grants
of the pueblo lands for the pueblo. Halleck thinks that it merely
conferred a power to regulate the temporary use of the common
lands. This Court has decided that it did not expressly confer
power to grant lands in private ownership.
Hart v.
Burnett, 15 Cal. 572. As a matter of history, it is known that
the prefects very rarely attempted to exercise such power, not more
than two or three instances, including this grant to Scherrebeck,
appearing in the records of San Francisco, and one of those
subsequent to the conquest, by Horace Hawes. It is also well known
as a fact and as matter of law that the claim of such power by the
prefects has been repudiated by the city from the beginning. The
complaint here shows that the validity
Page 168 U. S. 217
of this Scherrebeck grant was denied by the city as early as
1853, and ever since. The Van Ness ordinance, passed in 1855, and
ratified by the legislature in 1858, practically confirmed all
previous grants of pueblo lands made by any ayuntamiento, town
council, alcalde, or justice of the peace of the former pueblo, or
of the city, but was entirely silent as to grants by prefects. Even
the allegations of the complaint do not show that the prefect had
power as agent and acting in behalf of the pueblo to alienate its
lands in fee. He is said to have authority to make grants and
distribution of lands within the pueblo limits, but this power may
have been derived from the departmental authorities, and exercised
independently and against the will of the municipal authorities.
And this appears to have been the case with the Scherrebeck claim.
The making of the grant was opposed by the alcalde, the only
municipal officer who appears to have had anything to do with it,
but it was approved by the governor and the superior
authorities."
In the case under consideration, there was no evidence that the
grant of the prefect ever received the sanction or approval of the
governor, the ayuntamiento (town council), or other superior
authority of the Mexican republic, and we do not think the fact
that similar grants may have been confirmed by Congress or received
the approval of the Mexican authorities is decisive in favor of
recognizing its validity. In its adjudication of these cases, the
Court of Private Land Claims is subject to certain statutory
restrictions upon which previous confirmations by Congress of
imperfect grants have no proper bearing.
Rio Arriba Co. v.
United States, 167 U. S. 298,
167 U. S. 308.
We are of opinion that it was beyond the power of the prefect to
make the grant in question.
Nor do we think that petitioners are entitled to this grant by
prescription or adverse possession, since, under section thirteen
of the act creating the Court of Private Land Claims, the title to
the land must have been "lawfully and regularly derived from the
government of Spain or Mexico," and one which, if not complete and
perfect at the date of the acquisition of the property by the
United States, "the claimant
Page 168 U. S. 218
would have had a lawful right to make perfect had the territory
not been acquired by the United States." This would preclude the
idea that possession since the date of the treaty, however
exclusive and notorious, could be regarded as an element going to
make up a perfect title. There was no evidence of more than six or
eight years' possession prior to the date of the treaty, and this,
under any construction of the Spanish or Mexican laws, would be
insufficient to constitute a title as against the sovereign.
Indeed, it may be open to doubt whether, under the legislation of
Mexico, public lands are not imprescriptable; but, if it be
otherwise, it would seem that, under the decree of the King of
Spain of July 16, 1819, nothing less than a possession of forty
years could be deemed or respected as creating title by adverse
possession. 2 White's New Recopilacion 562.
The disposition we have made of this case renders it unnecessary
to consider whether the document offered in evidence to establish
the plaintiffs' title, which was neither the
expediente
nor the
testimonio, or official copy thereof, and was
merely an unsworn and unverified copy of the testimonio, was
admissible at all.
If there be any hardship to the petitioners in the rejection of
this grant, they must apply for relief to another department of the
government. We are bound by the language of the act creating the
Court of Private Land Claims. Its decree in this case was correct,
and it is therefore
Affirmed.
