On a petition to the Governor of the Province of New Mexico, in
1819, for a grant of public land, made by a resident in that
province, the governor directed possession to be given by the
alcalde, and the expediente to be transmitted by that officer to
the office of the governor, so that, if approved
Page 168 U. S. 67
by him, the proper testimonio might be ordered to be given
to
the petitioner.
Held:
(1) That no grant was made until return should be made by the
alcalde, and that, until his action should be approved by the
governor, it was without effect.
(2) That as there was no evidence in this case, either in the
papers presented in support of the petitioner's claim or in the
facts and circumstances proved, from which an approval could
properly be presumed, the petitioner must be held to have failed in
a material part of her case.
(3) That in consequence of such failure, the petitioner was not
entitled to judgment for eleven square leagues of the land claimed,
under the 7th subdivision of § 13 of the Act of March 3, 1891, c.
539, 26 Stat. 854, creating the Court of Private Land Claims.
The case is stated in the opinion.
MR. JUSTICE PECKHAM delivered the opinion of the Court.
These are cross-appeals from a judgment of the Court of Private
Land Claims, confirming in the petitioner, Bergere, for herself and
the other heirs of Manuel Antonio Otero and Miguel Antonio Otero,
the title to eleven square leagues of land in the Territory of New
Mexico. The petition was filed in the court below, asking that the
validity of the title to a very much larger tract of land in the
above territory, alleged to have been granted in 1819 to one
Bartolome Baca by Acting Governor Melgares, might be confirmed to
the heirs and legal representatives of Baca, of whom, she alleged,
she was one.
The number of acres contained in the alleged grant was not
stated, but it has been variously estimated at from half a million
to a million and a half.
The judgment of confirmation was granted upon the ground, as
stated by the court, that the grant to Baca was imperfect at the
time of the cession of the Department of New Mexico
Page 168 U. S. 68
to the United States by the Treaty of Guadalupe Hidalgo, and
hence it could only be confirmed by the court for the amount of
eleven square leagues, under the seventh subdivision of section 13
of the Act of Congress of March 3, 1891, 26 Stat. 854, c. 539,
creating the Court of Private Land Claims. That subdivision reads
as follows:
"No confirmation of any claims or lands mentioned in section six
of this act, or in respect of any claim or title that was not
complete and perfect at the time of the transfer of sovereignty to
the United States as referred to in this act, shall in any case be
made or patent issued for a greater quantity than eleven square
leagues of land to or in the right of any one original grantee or
claimant, or in the right of any one original grant to two or more
persons jointly, nor for a greater quantity than was authorized by
the respective laws of Spain or Mexico applicable to the
claim."
The petitioner thought the court below should have confirmed her
title to the whole of the land described in the alleged grant,
while the counsel for the government was of the opinion that the
judgment ought not to have confirmed her title to any portion
thereof. Both parties have therefore appealed from the judgment to
this Court.
In the course of the trial, certain papers were put in evidence
on the part of the petitioner for the purpose of proving the
alleged grant. They were written in the Spanish language, and a
sworn translation thereof, also appearing in the record, reads as
follows:
"To the Acting Governor:"
"Don Bartolome Baca, captain of the volunteer militia company of
cavalry of the villa of Albuquerque, residing in the jurisdiction
of Tome, before you with the greatest respect and subordination, as
by law required, represents: that he has a number of sheep, horned
cattle, and horses, without legitimate property on which to keep
them together under shepherds, cattle herders, and horse herders,
to take care of them, and secure their safety, they now roving over
different places, exposed to all the contingencies arising from
their being
Page 168 U. S. 69
scattered. There being vacant on the other side of the Abo
Mountain a tract called the 'Torreon,' and which extends, on the
north, to the Monte del Cibolo, on the south to the Ojo del Cuervo,
on the east to the springs called the Estancia Springs, on the west
to the said Abo Mountain, he prays you to be pleased to grant the
same in real possession, in the exercise of the powers upon you
conferred by his majesty, in order to establish thereon a permanent
ranch or hacienda, which he engages to occupy with his stock,
sustaining the same with armed servants, who may defend it against
the incursions of the enemy without abandoning it, and he will
also, if possible, open lands for cultivation, whether irrigable or
dependent upon the seasons, for the advancement of agriculture;
and, although the water sources it contains are small and
uncertain, he proposes to improve them with reservoirs and other
appliances which will secure every advantage possible, and he
affirms that it has at present no owner, and that it never has had
any known owner."
"Wherefore he prays you to be pleased to grant this his petition
in conformity with law, and to direct the royal judge of his
district to give him legal possession, with the proper documents
and other formalities which are required, whereby he will receive
favor, grace, and justice. I swear that I do not act in bad faith,
and in that which is necessary etc."
"San Fernando, February 4, 1819."
"Bartolome Baca [Rubric]"
"Santa Fe,
July 2, 1819"
"As he asks it according to law, and I understand that no injury
results to any third party, but, on the contrary, increase of stock
raising and agriculture under the conditions asked:"
"Don Jose Garcia De La Mora will proceed to give the possession,
designating limits, and doing what is proper, which, being
concluded, he will transmit the expediente to this superior office,
so that, if it be approved, the proper testimonio may be ordered to
be given to the petitioner."
"Melgares [Rubric] "
Page 168 U. S. 70
"In execution of the decree of July 2, 1819, I, Jose Garcia De
La Mora, the judge commissioned by Lieutenant Colonel Facundo
Melgares, Governor of the province of New Mexico, proceeded in
company with Captain of Volunteer Militia Bartolome Baca, who, by
his merits and conduct in the service of both majesties, as has
been proved by the offices which have been conferred upon him of
alcalde mayor, and in other services in the field, the governors
always appointing him commander of campaigns and scouting parties,
which he always led with honor and valor, and in addition to all
this he has always surpassed others in voluntary contributions,
setting a good example to his inferiors; wherefore, in reward of
all these merits and services, I have proceeded in his company to
examine the tract he applies for, and knowing that it is wild land,
and that no injury results to any third party, I have placed him in
possession in the name of the King (whom may God preserve), and I
took him by the hand, and led him over the whole tract, he
shouting, and plucking up grass, and throwing stones in the name of
the King, saying, 'Long live our beloved monarch, Don Fernando VII,
whom God may preserve,' with hurrahs and shouts, and I shed tears
of delight at his acclamations, and I designated to him for his
boundaries: on the south, the Ojo del Cuervo, following its line to
the Ojo del Chico; on the east, the Cerro del Pedernal; on the
north, the Ojo del Cibolo; on the west, the Altura de la Sierra
(summit of the mountain range); the said gentleman being satisfied
and grateful to the said governor for the benefit conferred upon
him, binding himself to increase by his intelligence the limited
waters which have been donated to him in order that his herds may
be maintained, to which he is bound, transmitting the whole for
your approval, he will satisfy the fees which may be charged to
him."
"Wherefore I transmit this to the superior authority in order
that, it being examined by you, you may decide as you may deem
just."
"San Fernando, September 12, 1819. To which I certify with my
two assisting witnesses."
"Jose Garcia De La Mora [Rubric]"
Page 168 U. S. 71
"Assisting witness:"
"Jose Andres Caller [Rubric]"
"Assisting witness:"
"Franco. Galiz [Rubric]"
"[Torn] the boundaries by [torn]"
"[Rubric]"
"[Torn] elgares"
The original of the last portion of the above paper, from the
words "San Fernando," etc., reads in Spanish as follows:
"San Fernando, doce de sepre. de mil ochocientos diez y nueve
anos. De qe. doy fee, con los dos de mi assistencia."
"Jose Garcia De La Mora [Rubrica]"
"De assa.:"
"Jose Andres Caller [Rubrica]"
"De assa.:"
"Franco Galiz [Rubrica]"
"[Roto] de los limites por [Roto]"
"[Rubrica]"
"[Roto] elgares"
The petitioner claims that the evidence shows an approval by the
governor of the action of the alcalde in delivering juridical
possession of the land described in the petition of Baca, and that
thereby the grant became effective and absolute. Also that there is
sufficient evidence of an adverse possession of such land by Baca
from 1819 to the time of his death in 1834, and after that time by
his heirs and representatives.
The court below found the following facts:
"First. That on February 4, 1819, Bartolome Baca presented a
petition to the then governor of the province of New Mexico,
Facundo Melgares, setting forth that he had registered a piece of
vacant land, which was called the 'Torreon;' that the said governor
made the said grant as petitioned for on July 2, 1819, and directed
Jose Garcia De La Mora to give possession, designating the limits
and officiating duly; that, afterwards, to-wit, on September 12,
1819,
Page 168 U. S. 72
the said official gave to the said Bartolome Baca the actual
possession of the said tract of land called the 'Torreon,'
petitioned for."
"Second. That the said tract of land called the 'Torreon' had
been in the actual possession of Bartolome Baca for more than four
years from the date of the grant on said September 12, 1819."
"Third. That the said petitioner, who filed her petition for
herself and other heirs of Manuel Antonio Otero and Miguel Antonio
Otero, are the legal successors in interest to the rights of the
said heirs of the said Bartolome Baca."
"The court finds as a matter of law that the grant to said
Bartolome Baca was imperfect at the time of the cession of the
department of New Mexico to the United States of America by the
Treaty of Guadalupe Hidalgo, and that the petitioner, for herself
and other heirs of Manuel Antonio Otero and Miguel Antonio Otero,
as the legal representatives of the said Bartolome Baca, is
entitled to a confirmation of eleven square leagues of land within
the outboundaries of the tract of land called the 'Torreon,'
granted to said Baca, and of which he was put in actual
possession."
"It is therefore ordered, adjudged, and decreed by this Court
that the claim of the petitioner for the land hereinbefore
described and set out be, and the same is hereby, confirmed to the
extent of eleven square leagues to the heirs and legal
representatives of Bartolome Baca, provided that this confirmation
shall not confer any right or title to any gold, silver, or
quicksilver, mines or minerals, of the same."
In regard to the character of the grant involved in this
proceeding, it is conceded on the part of counsel for petitioner
that the approval of the governor was necessary in order to make
the grant effective. In their brief they say:
"Now, this grant was not finally made until return was made by
the alcalde, and approval had. Before that time, it had no
existence. The confirmation of the government was the one act that
fixed the right of the grantee, and that final act was based upon
the return, and, necessarily in this case, in confirmation of the
return. "
Page 168 U. S. 73
We have no doubt of the correctness of this view. The governor,
in his reference of the case to the alcalde, bids him transmit the
expediente to his office so that, if approved, the proper
testimonio may be ordered to be given the petitioner. Until
approved, the action of the alcalde was of no effect.
The burden of showing this approval rested with the petitioner,
and, unless she has sustained it, she has failed in this branch of
her case.
In speaking of the burden cast upon a petitioner who asks
confirmation of an alleged grant of land under the act of 1891,
above referred to, this Court, in
Whitney v. United
States, 167 U. S. 529, at
page
167 U. S. 547,
said:
"Upon the whole, we have come to the conclusion that the
claimants have not made out their case by a fair preponderance of
evidence or such weight of testimony as is necessary to establish
their title to this large tract of land."
Counsel for the petitioner claim that, assuming the burden as
above stated, there is a presumption, arising from an inspection of
these papers and from a consideration of the other evidence in the
case, that there was an approval of the action of the alcalde by
the governor, and that the grant was thus made effective. We do not
concur in this view, and we are of opinion that the papers
themselves show no approval by the governor, and that there is no
evidence of other facts or circumstances from which such approval
could properly be presumed.
There is no approval to be found upon the papers themselves.
This is too plain for argument. The torn portion of the paper
following the report of the alcalde has no word of approval
thereon. There is part of a sentence which, as translated, means
"the boundaries by," and under it is the signature of Melgares,
with the exception that the first letter of his name is lacking.
This does not and cannot, in and of itself, constitute an approval
in fact, and there must be something more than this torn paper upon
which to found a presumption of such approval.
It is, however, urged that the presumption arises from an
inspection of all the papers above referred to, aided by a
consideration of the other evidence in the case.
Page 168 U. S. 74
We think no such presumption can be indulged in from an
inspection of all of the papers in question, even when aided by the
other evidence.
Such an inspection shows that the alcalde proceeded on his own
account to deliver juridical possession of a much larger tract of
land than Baca had petitioned for in his petition to the governor.
This larger tract the alcalde described in his report to the
governor, and submitted his action to the governor for his final
approval.
The action of the alcalde is sufficient to prevent a presumption
of approval founded solely on an inspection of the papers. The
difference between the amount of the land asked for and that
delivered by the alcalde is too great to permit of any presumption
of approval. There must be some proof of it. We are not aided in
making this presumption by a consideration of the other
evidence.
Counsel for the petitioner refer to the fact of the possession
of these papers by Baca as an important piece of evidence in aid of
this presumption. The possession alluded to was proved by one of
the grandsons of Baca, who was a witness for the petitioner. He
testified that his mother was a daughter of Baca, and that his
father was Baca's administrator. The papers of Baca were in the
possession of his father as such administrator. His father died
somewhere about 1880, and after his death the witness took the box
of papers that had belonged, as he said, to his grandfather, and
kept it. He did not know its contents until he was looking for some
papers belonging to his father, when he found what he describes as
a part of the grant of a tract to Bartolome Baca. Witness took the
paper to Manuel Antonio Otero, who said, "Let us search for the
other part and I will buy it from you and the other heirs," and
then, after a further search, the other part was found, and these
papers thus found are the ones above set forth.
Upon these facts, it is said that it appears that the papers
were in possession of Baca, and that they were delivered to him by
or on behalf of the governor, and it therefore follows that the
grant was approved by him, or otherwise the paper
Page 168 U. S. 75
would not have been delivered. The bare fact of possession of
the papers as above stated is all that the evidence shows. There is
not one word of proof of any delivery of the papers to Baca, and we
cannot see, from the mere fact of possession of the papers under
these circumstances, sufficient ground upon which to base a
presumption of delivery, and therefore of approval.
We are asked to presume the fact of delivery because the papers
were found in the box of papers once belonging to Baca, and we are
then further asked to presume an approval because of the presumed
delivery. This requires an entirely too free use of presumptions
unsupported by evidence tending in the direction of proof of the
facts to be presumed. If the papers had contained an approval by
the governor, it might, perhaps, have been admissible to presume a
delivery from the fact of possession. It is too much to ask us to
presume both facts from the sole fact of the possession of the
papers. The other evidence in the case, viewed in connection with
these facts, is wholly insufficient to permit of the presumption.
It is directed only to the fact of possession of the land by Baca,
the character and weight of which evidence will be spoken of
hereafter. It is enough to say here that it is insufficient to be
used as lending any strength to the presumption of approval which
we are at present discussing.
In the condition in which the papers were found, some evidence
further than mere possession of them should have been given. The
papers were not found together or at the same time. They were torn,
and part of the name of the governor had disappeared. They were not
of a character to be probably found in the hands of Baca. The proof
as to the manner in which Spanish grants were evidenced, as
ascertained from an examination of the records in the surveyor
general's office in the territory, is unimportant. The witness was
simply unable to give an opinion as to the general custom. Here,
however, the papers themselves showed that something other than
those papers were to be given the grantee. The papers formed the
expediente, and belonged in the archives of the government when
approved, and they show on their face that,
Page 168 U. S. 76
if the government approved, there was to be given in that case a
proper testimonio to the petitioner, which it was evidently
contemplated should be something other than this expediente. There
is no proof of the existence of any such paper or that it was ever
given.
Under all these circumstances, some explanation as to the
possession of these papers by Baca should have been given, showing
they were intended as in place of the testimonio, so that the
presumption of a delivery and an approval by reason thereof would
not necessarily rest solely upon the fact that the papers without
any approval endorsed on the return were found as stated.
Evidence of the delivery of juridical possession of the land to
Baca is also referred to as aiding the presumption of the
subsequent approval by the governor, and the delivery of the papers
to Baca, and the further alleged fact of the retention of such
possession by Baca up to his death, in 1834, is also mentioned for
the purpose of strengthening this presumption. The alcalde in fact
delivered to Baca juridical possession of much more land than was
asked for by Baca in his petition. This fact is attempted to be
explained upon the theory that the petition of Baca did not
describe in detail the land he asked for, and that the governor, in
referring the petition to the alcalde, directed him to designate
the limits, and do what was proper etc. There is, however, a
sufficient description of the land contained in the petition of
Baca. It was in regard to that particular land thus described that
the acting governor said that, "as he asks it according to law,"
etc., "Don Mora will proceed to give the possession, designating
the limits." Was this an authority to Don Mora to designate such
limits as might seem good to him, or was it simply an authority to
designate those limits which were described in the petition of
Baca? We have no doubt it was the latter, and hence, when the
alcalde made return that he had delivered juridical possession of a
much larger tract of land than had been asked for, it would
naturally be supposed there might be hesitation and refusal to
approve on the part of the governor. Certainly no presumption of
approval would arise from these
Page 168 U. S. 77
facts. Therefore the delivery of juridical possession, as shown
in this case, has not the usual importance that is attached thereto
when such delivery takes place as the concluding act in a grant of
an absolute character. This delivery was concededly conditional,
and could have no final effect until the approval by the governor,
and this approval must be shown by the petitioner to have been
given, and cannot be presumed to follow the delivery of juridical
possession.
Actual possession of the land described in the alleged grant for
four year by Baca, as found by the court below, is also claimed as
an important fact upon which, in addition to the evidence already
alluded to, the presumption of approval may properly be sustained.
The evidence upon which the finding is based is not substantially
contradicted, and it shows that, after the delivery of juridical
possession by the alcalde, Baca built some small buildings on a
portion of the land for the use of his herders and servants, who
occupied them, and who were attending to the business of looking
after his horned cattle, sheep, and horses, for which Baca wanted
pasture. He never himself resided on the land, but, subsequently to
his taking possession from the alcalde, and at different times
prior to his death, in 1834, other persons, embracing in all a
number of families, had come upon Baca's portion of the land, and
had dwelt there, without any molestation from him, and probably
with his consent, on account of the protection their presence would
afford to his interests against the Indians. During the years
subsequent to the grant in question, there were granted within the
boundaries thereof small grants to settlements or towns, which the
petitioner says were granted with the assent of Baca, and his legal
representatives. There is also evidence of some small attempts at
cultivation within a narrow range of land contained in the grant --
hardly enough to speak of. Some of the witnesses for the petitioner
said the place was called "Torreon" because Baca built a torreon
there, and the people gave it that name for that reason. The
accuracy of this evidence becomes doubtful, to say the least, when,
by referring to the original application of Baca to the acting
governor for
Page 168 U. S. 78
the grant, he describes it therein as "a vacant . . . tract
called the
Torreon,' and which extends," etc., as described.
Two of the sons of Baca occupied at one time a log house that was
built by Baca upon the land, and they occupied it while
superintending the herders who were caring for the cattle being
pastured in the vicinity. Petitioner's witnesses also said that,
since 1819, and up to the death of Baca, he was recognized as the
owner of the property, and after his death the property was
recognized and respected as that of Baca.
Who were the persons thus recognizing ownership is not stated --
whether servants and agents of Baca, or independent third persons.
Some of the witnesses making these statements were wholly ignorant,
as they said, of the fact that grants of portions of this land had
been made by the Mexican government as vacant and occupied lands.
Subsequently to the date of 1819, such conveyances were in fact
made, and whether the title conveyed by them was good or bad, it
appears conclusively that the Mexican government, during the time
when this possession of Baca is claimed to have been in existence,
regarded the tract as vacant and unoccupied so far as to permit of
its conveyance to others of various portions of the land now
claimed. Another witness thought that Baca occupied about three
hundred varas in width from east to west and from north to south,
but he was ignorant as to the boundaries of the grant, although, so
far as he knew, Baca claimed no more than three hundred varas, and
this was under some cultivation for a distance of about one hundred
varas from north to south, and this was as late as 1829 or 1830.
Other persons during this time came in and made application to the
judge of first instance, as witness remembered, for other portions
of land embraced in this alleged grant, on the theory that such
portions were vacant and unoccupied.
This, in substance, is the evidence of possession, and it
cannot, as we think at all strengthen the presumption of an
approval of the grant, and a possession in accordance with it.
Nor do we think there is any evidence upon which to base a claim
of adverse possession of this land as of right, or under
Page 168 U. S. 79
some claim of title. There is no evidence showing a possession
exclusive in its nature, and founded upon a claim of right to the
land so possessed. If there had been evidence of an approval of the
grant, the delivery of juridical possession, as stated in the
return of the alcalde, might be sufficient evidence of title at one
time to the whole land; yet, in the absence of such evidence of
approval, we are of opinion that the actual possession, as proved,
was totally insufficient to support a claim of title to this
immense tract of land; nor is it sufficient to support a
presumption that the acting governor did approve the grant, and
that what appears upon the torn expediente is in reality part of
his written approval thereof. The recognition of the property as
belonging to Baca was very probably a recognition of the occupancy
by him of the three hundred varas above alluded to, and is surely
not definite enough to base a claim that the possession of this
large amount of land by Baca was either notorious or in any degree
exclusive, or that any portion of it was ever used by him for any
purpose other than the pasturing of his cattle, sheep, and horses,
and purposes connected therewith, but in no way exclusive of other
persons.
In regard to proof of the fact of pasturing cattle as evidence
of an adverse possession upon which to base a claim of title, we
have held that such fact is of very slight weight when applied to
cases arising under alleged grants of land of the nature of the one
under consideration. In the case of
Whitney v. United
States, 167 U. S. 529,
167 U. S. 546,
already above cited, this Court said, speaking through MR. JUSTICE
BROWN, as follows:
"The claimant also relies upon a long continued adverse
possession of this land, maintained for nearly 170 years from the
date of the grant, and nearly eighty years from the date of the
testimonio issued by the alcalde mayor, de Baca. Had it been shown
that this possession was complete, adverse, and undisputed during
the whole life of this grant, such possession would probably be
regarded as complete evidence of title. Nor are we disposed to deny
that the fact that the Luceros and their descendants pastured stock
upon these lands is evidence of such possession, but, in order to
make it of any
Page 168 U. S. 80
particular weight, it should be shown to have been exclusive,
and that no other person pastured, or had the same right to
pasture, upon these lands. The proceedings in the case first above
mentioned, of the intrusion of the Romeros, indicate the lands to
have been held in common, and to have been subject to pasturage by
the Indians and other residents of that neighborhood. Under such
circumstances, it should be made to appear that the rights of
Lucero and his descendants were exclusive in this particular. In
addition to this, however, it is a fact so notorious that we may
take judicial notice of it -- that mere pasturage upon these
Western lands is very slight evidence of possession. The court
below was of the opinion that, from a practical standpoint, the
grazing of stock in this country has no value as evidence of
practical location. In view of the fact that all, or nearly all, of
this testimony respecting possession is given by witnesses who are
descended from Lucero, or connected with his family, or are
interested in the litigation, and the possession relied upon is not
shown to have been exclusive or inconsistent with the use of this
vast tract as a pasturage common to all the dwellers in that
neighborhood, we think the court did not err in refusing to give it
weight as evidence of title."
These remarks apply with great force to this case, so far as the
evidence herein goes to show actual possession by reason of the
pasturing of stock, which is really all the evidence of possession
the case affords. It is entirely lacking in evidence of an
exclusive possession under a claim of right, and the testimony is
consistent with a mere occupancy of but a small portion of the land
by Baca and his servants for purposes of pasturage, and without
claim of further or exclusive right or title.
There is another fact that we think bears with a good deal of
force upon the question whether there ever was an approval by the
governor, and, as connected therewith, whether Baca himself ever
thought that he had, or claimed to have, any title to or property
in the land described in his petition or in the report of the
alcalde, and that fact is that he makes no mention whatever of this
property in his will, and does not, in
Page 168 U. S. 81
that instrument, claim to have any title to or interest in the
same. The will was put in evidence only for the purpose of showing
the written declarations of Baca as to his ownership of property
and his omission to name the property in question, and we think it
sufficiently proved for that purpose.
The failure to enumerate in his will a particular piece of
property owned by a testator would, in ordinary cases, be of not
the slightest significance. But a perusal of the will under
examination shows, as we think, quite plainly, that the testator
was, in effect, marshaling his assets, and mentioning in the
instrument all his property, and making specific dispositions
thereof. He speaks in great detail of his different pieces of
property, both real and personal. The paper cannot be read without
giving the impression that the testator was naming therein every
piece of real property which he claimed to own. A reading of the
will is the most satisfactory and the best proof of the correctness
of this statement, and the instrument, with the exception of the
formal parts, is therefore given in full in the margin.
*
Page 168 U. S. 82
After reading the will, the inference is, as we think,
irresistible, that Baca did not suppose he owned, and made no claim
to own, the property in question here. If he had owned it, or
Page 168 U. S. 83
claimed to own it, there can be no doubt it would have been
mentioned in the will. A grant containing at the lowest estimate
half a million acres of land would be much too large
Page 168 U. S. 84
for the testator to have overlooked or ignored in a declaration
of ownership of property such as is contained in this will.
We should infer from this omission that Baca knew he did not own
the land, and was aware of the fact that the action of the alcalde
had never been approved by the governor.
From the fact of Baca's omission to name this land as his
property we must infer that such actual possession as he had taken
of a small portion of this land never led him to suppose that he
was the owner of it, or that he had any title to it.
It was, in fact an occupation of a comparatively small piece of
the land in question, for the purpose of pasturage, but in no way
exclusive in its nature, and under no claim of right or title.
Hence the omission of Baca to mention the land as his property, or
to refer to it in any way.
The action of the Mexican government in making grants to third
parties of certain portions of these lands as vacant and unoccupied
lands is also of some importance. The grants were made at times
which were long subsequent to the petition of Baca and the making
of the return of the alcalde, and were made after an official
examination of the lands than granted, and a certificate that they
were vacant.
We express no opinion as to the validity of these grants, and we
allude to the subject only for the purpose of pointing out how the
facts appeared to the Mexican officials, who, at
Page 168 U. S. 85
that time, were engaged in an investigation of the question of
occupancy, and who reported the lands mentioned in the respective
grants as vacant and unoccupied, which we may assume they would
scarcely have done had Baca or his heirs then been in the actual
possession and occupation of those very lands.
We have now referred to the substance of all the evidence
contained in this record, and we are compelled to conclude that the
petitioner has failed to make out a title of any kind to the land
in question. While the court below failed to give judgment to the
petitioner for the full amount of her claim, yet it did give her
judgment for the amount already stated of eleven square leagues of
land. The court found that the grant was an imperfect grant at the
time of the cession of the territory to the United States.
In our view of the case, no grant, perfect or imperfect, was in
existence at that time, and hence the finding of the court that the
petitioner was entitled to a confirmation of eleven square leagues
within the limits of the outboundaries of the tract cannot be
sustained.
The act creating the Court of Private Land Claims (above cited)
provides in the first subdivision of section 13 for the
confirmation of imperfect grants.
This Court has construed the language there used to mean
"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."
Ainsa v. United States, 161 U.
S. 208,
161 U. S.
223.
The same construction was upheld in
United States v. Santa
Fe, 165 U. S. 675,
165 U. S. 714,
and it is again approved in
United States v. Sandoval,
167 U. S. 278,
167 U. S. 293.
After a full consideration of the case, we must hold there is not
sufficient evidence to show that at the time of the cession of the
Territory of New Mexico to the United States, the predecessors or
grantors of the petitioner had any title of any kind whatever,
perfect or imperfect, to the land described in the petition herein,
and
Page 168 U. S. 86
consequently there could be no confirmation of any alleged
imperfect title or grant.
The judgment of the Court of Private Land Claims must
therefore be reversed on the appeal of the United States, and the
record remanded to that court, with directions to enter judgment in
conformity with this opinion.
*
"
Will of Bartolome Baca"
"First, I commend my soul to God, our Lord, who, from nothing,
created it, and my body to the earth, from which it was made,
which, when a corpse, I direct be shrouded in the habit of our
seraphic father, San Francisco, and to be buried in the Church of
the Pure and Spotless Concepcion de Tome."
"It is my will that my burial be humble, and with mass, with the
body present. I also declare that I am lawfully married, in
facie ecclesiae, to Dona Maria De La Luz Chaves, from
which marriage we have had and have, as our legitimate children,
Maria Rita, Manuela Antonia, Maria Manuela, Juan, Manuel, and Maria
Lugarda. I also declare as my property the house where I live,
containing seventeen serviceable and three unserviceable rooms,
with a chapel where the holy sacrifice of private mass is
celebrated, adorned with thirty-five images in sculpture and
pictures, a pulpit, twenty-four mirrors, a censer with its boot of
silver, five chasubles with their corresponding accessories, two
capes, two albs, two sashes, six altar draperies, two missals, one
chalice with its accessories, two cruettes with their salvers,
eight metal candlesticks, and its vestry, with a chest in which the
ornaments are kept. I also declare as my property the utensils of
my house, consisting of eight mirrors, eleven silver plates, twelve
spoons, and eight forks also of silver, three copper kettles, two
large chests, four carts with trappings, five trunks, three
hampers, one silver vase and a tankard of the same, one wardrobe,
one carriage, four serviceable and three unserviceable wagons, one
flask case with twelve flasks, eight hoes, three axes, two adzes,
three bars of iron, two American saws, one thousand six hundred
dollars in money, one copper boiler. I also declare as my property
nine small houses in this place of San Fernando, four small houses
at El Cerro, the farming land I have at this place and at El Cerro,
with the purchase I have in this said sitio, which is coterminous
with the sitio of Valencia. I also declare as my property a house I
have in the sitio of the Peraltas, a broken field, and an interest
in the"
"[Good for seal third for the years 1833 and '34. Rubric.]"
"said sitio. I also declare as my property a house and lands in
the sitio of the Aragons, an interest in said sitio, which I bought
of the late Jose Aragon."
"I also declare as my property a ranch which I bought of Don
Luciano Garcia on the other side, in front of Bernalillo, which
consists of a house and lands, the value of which is one thousand
dollars, which I gave for it. I also declare as my property two
ranches in the sitio of Tome, with its houses, which I purchased of
Jose Manual Apodaca and Andres Mirabal, and two large fields
purchased of Felipe Montoya. I also declare as my property two
fields, and an interest in the sitio of Las Enlames, which I
purchased of the late Antonio Jose Baca. I also declare as my
property that which I have in a room in my house set apart as a
store, and in which there are forty-five pieces of calico,
domestic, and muslin. I also declare as my property two houses I
have in La Joya de Sevilleta, together with their share of lands in
the sitio. I also declare as my property a house I have in the
village of El Paso del Rio del Norte, with its vineyard and
corresponding land, as appears from the document executed for me,
and which is in my possession. I also declare as my property the
land I have in the sitio of Sansal, which Juan Antonio Baca paid
me, and which was received by Tomas Sanchez. I also declare as my
property the broken lands I have in the sitio of Mansano, and my
interest therein, together with the will under the management of
Jose Antonio Torres. I also declare as my property a mill I have in
this place of San Fernando. I also declare as my property four
hundred and fifty head of cattle from the brand up, seven thousand
head of small stock, eight hundred ewes of mine which Don Francisco
Ortiz has on shares, one thousand ewes which Gonzales, who resides
at Seboyeta, has on shares. I also declare as my property forty
broken mules, a little more or less; twenty-four aparejos, with
accessories; one hundred horses between unbroken and broken;
twenty-four young mules one two years old; two asses. I also
declare th't Don Mateo Sandoval owes me"
"[Good for seal third for the years 1833 and '34. Rubric.]"
"four hundred and thirty dollars in money, which I order
collected. I also declare that, according to the cash book in my
use and the obligations that have been made to me, collections be
made of all the individuals who owe me, and are not credited on
their accounts and obligations. I also declare that I owe the house
of the late Francisco Chaves four thousand and odd dollars in money
and five thousand ewes I had from said house on shares. I order
that it be paid. I also declare that I owe as tithes at El Paso del
Norte four thousand dollars. This is being paid, and what is found
not to have been paid, I order that it be paid. I also declare that
I owe to Don Santiago Arichavala for one thousand two hundred
sheep. I order that they be paid for. I also declare that I owe Don
Rafael Ortiz for six hundred sheep for the year eighteen hundred
and thirty-four. I order that they be paid for. I also declare that
I owe my stepson, Jose Luna, for five hundred sheep. I also declare
that Don Ricardo Ester owes me four thousand five hundred dollars.
I order that it be collected. I also declare that Don Ignacio De La
Campa, who lives in Sonora, owes me one thousand five hundred and
fifty-six dollars, two reals. I order that it be collected. I also
declare that Don Alexandro Legren owes me four hundred dollars, two
hundred of which appear in an obligation he executed for me, and
for the other two hundred he made no obligation. I order that it be
collected. I also declare as my property a tract of land in the
sitio of Lunas, which Antonio Jose Padilla paid me. I also declare
that Ruybali De Savinal owes me for three hundred ewes. I order
that it be collected. I also declare that Vicente Provencio, who
resides at Oposura, in the State of Sonora, owes me five hundred
dollars in money. I order that it be collected. I also declare that
all the servants of my house, according to their accounts, are
obligated to earn them in the house, even to the last real, and he
who does not wish to serve shall pay in full. I also declare as my
property forty she goats, which are in the possession of Gertrudis
Montoya, who resides in Belen. I also declare as my property one
iron cot and two bells."
"[Good for seal third for the years 1833 and '34. Rubric.]"
"I also declare as my property a cross with its iron weather
vane, which is used on the belfry. I also declare that I leave to
my wife, Dona Maria De La Luz Chaves, my dwelling and all the
household furniture within the doors thereof, it being observed
that I have given houses to all my children; to Manuelita the house
I have in Santa Fe, with its corresponding land, and to all the
others I have also given houses in this place of San Fernando, with
their respective lands. I also declare that I leave to my wife,
Maria De La Luz Chaves, the land enclosed by a wall I have in this
place and orchard."
"In order to carry out all the wishes this will contains, and
which the codicil will contain, in case I leave one, I appoint as
my executor, in the first place, my wife, Maria De La Luz Chaves;
in the second, Don Jacinto Sanches; and, in the third, Don Enrique
Luna -- and each one
in solidum, and I give them ample
power to take possession of my property as soon as I die, and to
pay all I owe, and that their collection be lawful and real, and
that they make it with the legality their good conscience may
indicate to them, which charge shall continue for the legal year
and as much more time as they may need, since I extend it. And
after it is completed, and everything is paid, in the sale of my
property, furniture, real property, rights and shares, present and
future, I constitute as my sole and universal heirs my wife, Dona
Maria De La Luz Chaves, and my said children, Maria Rita, Manuela
Antonio, Maria Manuela, Juan Clemente, Manuel, and Maria Lugarda,
who, after paying all I owe (except what I have given them), shall
make a lump of what is left, the half for my said wife and the
other half to be shared in equal parts by my children, that they
may enjoy it with the blessing of God and my own. And by these
presents I revoke and cancel the wills and other testamentary
provisions I may have made heretofore."