The decision of the Court of Private Land Claims that the
ayuntamiento of El Paso had no power to make a grant, like the one
in controversy in this case, entirely outside of the four square
leagues supposed to belong to El Paso, and that even if it had such
power, the conditions of the alleged grant were never performed by
the grantee, and therefore that he acquired no title to the
property, was correct.
On January 9, 1893, the appellants, as plaintiffs, filed their
petition in the Court of Private Land Claims, praying that their
title to a tract of land in the Territory of New Mexico, and near
to the City of El Paso, Texas, be confirmed. The plaintiffs named
as defendants, besides the United States, the unknown owners of the
Dona Ana Bend colony, Mesilla colony, and Bracito grants. The
United States, as well as certain individuals representing
themselves to be the owners of these grants, appeared and answered.
Thereafter a trial was had, and on June 26, 1895, the court entered
a decree finding that the plaintiffs' claim of a land grant had not
been sustained by satisfactory proof and dismissing the petition.
From such decree the plaintiffs have brought this appeal.
The facts disclosed by the record, and about which there is
little dispute, are substantially as follows: in April, 1823, one
Doctor John Heath, or Juan Gid, as his name is written in the
Spanish, petitioned the ayuntamiento or general council of El Paso
for a grant of a tract of land, which petition was acted upon by
the ayuntamiento, and a tract five leagues square was granted to
him. This petition was in these words:
"Dr. Don Juan Gid, citizen of the United States of North
America, in the best legal form allowed by law, appears before your
honorable body and states that, not having received up to date any
answer to the communication of December last of last year, which I
presented to the former
Page 169 U. S. 166
ayuntamiento, the predecessor of your honorable body, which
[communication], approved in all its parts, was forwarded to his
imperial majesty by the same, for which reason and because of the
increase [ampleacion] of the power which is given to your honorable
body by the law of colonization which was issued by the national
constituent assembly [junta] of the empire on the 3d of January of
the present year. For these reasons, I again have recourse through
this, repeating my request to your honorable body, adding that I
offer to bring for the settlement of the land of El Bracito, which
I ask may be given to me, thirty families of Christian Catholics,
and among them blacksmiths, gunsmiths, silversmiths, carpenters,
tailors, shoemakers, saddlers, architects, mathematicians,
chemists, mineralogists, surgeons, doctors of medicine, and to
establish a hospital, with its corresponding drugstore and proper
stock therein, with the necessary instruments for all operations;
also to build a warehouse supplied with all kinds of merchandise
for wholesale; the necessary machines for the manufacture of cotton
and cloth goods; another for the manufacture of gunpowder,
offering, until payment of the expense of transportation, to
furnish the amount of this article all this jurisdiction may need
at the very low price of one dollar per pound, it being first class
for the use of arms; with the understanding that in all the said
trades there shall be admitted for instruction the youths whose
parents may see fit to dedicate them thereto, the children of this
country [suelo] having the preference thereto."
"In view of what has been said, and because, for establishing
the said machinery, utilizing the farms, grazing stock, and for the
other field interests, it is indispensable that it have the
extension which is necessary therefor, it behooves me to
demonstrate to your honorable body that the land which may be
assigned to me, limiting me to the smallest amount, be at least
enough for [sea lo menos para] an hacienda, and that said
designation be made for me on both sides -- that is to say that it
be on both sides of El Bracito, because, the said land being
broken, it is necessary to leave out various portions of it. I also
propose to your honorable body that until time
Page 169 U. S. 167
permits whatever else may be desirable, this settlement be
attached to the parish of this jurisdiction; likewise that the
pasture and woodlands be common, with the same privilege as other
people of this locality, recommending that it be without prejudice
to those farms [sementeras], and that the petitioner be the person
to whom is entrusted the distribution of said lands, he being
considered the legitimate justice of said families."
"Candor of mind being what I most appreciate, and to join myself
with my brethren, the faithful inhabitants of this empire, living
always in the simple peace, in order to dispel all rumors of
hatred, I ask your honors that, you being pleased, and in order
that the said law of colonization be executed in all its parts,
notice of this, my petition, be given to the individuals of this
jurisdiction in order that all these gentlemen who like may better
or equal it with a view to the right of preference, in which act
your honorable body, to whom is entrusted the power of father of
this country [patria] will weigh at their true value the
incalculable benefits that result from my petition, whereupon, far
from seeking means to deprive it thereof, it would be encouraged in
every way to procure their increase."
"Wherefore I ask and petition your honorable body to be pleased
to accede to what I petition, being pleased to pardon the fault
that this my petition is not upon paper of the proper seal, for
there is none in this place, I being ready to pay the fees that
belong to the national treasury. I protest that I do not act in bad
faith, and the necessary,"
etc.
"Paso, April 7th, 1823."
"Juan Gid"
Certain proceedings were had upon this petition which it is
unnecessary to mention in detail.
On April 22. this order was made by the ayuntamiento:
"This ayuntamiento having on this day received that which by its
order was to be executed by the commission appointed from its midst
to do the surveying that was to be done in the land of El Bracito,
this being five leagues in each direction,
Page 169 U. S. 168
the whole of it composing an 'hacienda,' according to article 5
of the colonization plan, which land was granted by this
ayuntamiento to Don Juan Gid for the purpose of settlement, as
stated afterwards, and he being satisfied with what was done in all
its parts by the said commission, it was entered as a minute, in
due witness thereof the president and other members of which that
is composed signing it before me, the secretary, to which I
certify. Jose Ygnacio Rascon, Jose Morales, Jose Maria Belarde,
Jose Francisco Carbajal, Juan Maria Barela, Antonio Prudencio, Jose
Maria Garcia, Saturnino Aguiar, Jose Manuel Garcia, Lorenzo
Provencio, Jose Albares."
"Juan Maria Ponce de Leon,
Secretary"
And on the 25th the following:
"The present expendiente, in which there has been granted to Don
Juan Gid, Anglo-American of the United States, the lands of El
Bracito for settlement, being considered by this ayuntamiento as
closed, proceed to what is to be done under the tariff in force in
this ayuntamiento and by its secretary that Juan Gid may know what
fees he is to pay for what has been done therein, placing the
original in the archive as a perpetual testimony, but nevertheless
to this shall be sent, together with a certified copy, by the first
mail or safe conduct, to the governor of this province for his
superior information, another of the same kind being given to the
party in interest for his protection. And by the present order, the
president and members of this corporation so determined and signed
it before me, the secretary, to which I certify. Jose Ygnacio
Rascon, Jose Morales, Jose Maria Belarde, Jose Francisco Carbajal,
Saturnino Aguiar, Jose Manuel Garcia, Lorenzo Provencio."
"Juan Maria Ponce De Leon,
Secretary"
"It is a copy of the original expediente which on petition of
Don Juan Gid was made in order to grant to him for settlement the
land of El Bracito, in accordance with the colonization plan,
together with what is afterwards stated; which original remains
accordingly in the archive, to which I certify."
"Juan Maria Ponce De Leon,
Secretary [Rubric]"
Page 169 U. S. 169
A copy of these proceedings was sent to the governor of the
province, and the following action was taken by the provincial
deputation:
"In the session of the 17th of the present month the acting
governor of this province, Captain Jose Antonio Vizcarra, presented
to this deputation the reports which your honorable body makes to
him in an undated official communication which said chief received,
and he also presented another official letter, dated the 26th of
last April, accompanied by a copy of the proceedings had by your
honorable body in giving to the foreigner Mr. John Heath at the
Bracito, possession of land belonging to the people of that
jurisdiction."
"The deputation in the same session resolved to express to your
honorable body the surprise it felt at the violent and mistaken
procedure with which you conducted yourselves in giving land to
foreigners, not only with prejudice to the inhabitants of that
jurisdiction, but also in violation of the same law of which your
honorable body availed itself in order to carry into effect the
possession referred to, thus opening the door to the continual
complaints of its people; this deputation refraining from making
other observations to your honorable body, on account of the
colonization law, which was the moving cause in the concession of
the Bracito land to the said Heath having been repealed; but
proceeding to direct your honorable body that, in order not to make
itself responsible for damages which the foreigner might claim if
he should introduce into this province the families that he offers
to bring, it should notify the said Heath, through the
plenipotentiary of the United States resident in New Mexico, or in
some other manner which it may deem more prompt and effective, that
the possession which has been given to him at the Bracito,
belonging to that jurisdiction of El Paso, was through a mistaken
opinion and wrong understanding in relation to the colonization law
already repealed."
"And I communicate it to you by direction of the said
deputation, with the understanding that I shall communicate to you
the decision that may be arrived at when the petition
Page 169 U. S. 170
of Mr. Albo and the other persons of that town shall have been
discussed, your honorable body notifying me of the receipt of and
compliance with these instructions."
"God preserve your honorable body many years."
"Santa Fe, June 19, 1823, the third year of independence and the
second of liberty."
"Francisco Javier Chavez [Scroll]"
"Juan Bautista Vigil [Scroll]"
"
Deputy Secretary"
It does not appear that notice of this action of the provincial
deputation was at the time communicated to Heath, for soon after
the final order of the ayuntamiento, he returned to this country
and to the State of Missouri, of which state he had theretofore
been a citizen, made a disposition of his property, and collected a
body of colonists, with whom, in the year 1824, he proceeded to El
Paso with a view of taking possession of this tract of land.
Instead of being permitted to occupy the tract, he was banished
from the country, forced to abandon the property that he had
brought with him, and sent back to the United States a bankrupt. He
returned to Missouri, where he lived until he died, in the year
1851. Petitioners claim under him.
The national colonization law of January 4, 1823, under which
these proceedings were had, is, so far as it can have any
application to the present case, translated by Rockwell (Rockwell's
Spanish Laws, p. 617), as follows:
"Art. 1. The government of the Mexican nation will protect the
liberty, property and civil rights of all foreigners, who profess
the Roman Catholic apostolic religion, the established religion of
the empire."
"Art. 2. To facilitate their establishment, the executive will
distribute lands to them, under the conditions and terms herein
expressed."
"Art. 3. The empresarios, by whom is understood those who
introduce at least two hundred families, shall previously contract
with the executive, and inform it what branch of industry they
propose to follow, the property or resources they
Page 169 U. S. 171
intend to introduce for that purpose, and any other particulars
they may deem necessary, in order that, with this necessary
information, the executive may designate the province to which they
must direct themselves; the lands which they can occupy with the
right of property, and the other circumstances which may be
considered necessary."
"Art. 4. Families who emigrate, not included in a contract,
shall immediately present themselves to the ayuntamiento of the
place where they wish to settle in order that this body, in
conformity with the instructions of the executive, may designate
the lands corresponding to them, agreeably to the industry which
they may establish."
"Art. 5. The measurement of land shall be the following:
establishing the vara at three geometrical feet, a straight line of
five thousand varas shall be a league; a square, each of whose
sides shall be one league, shall be called a sitio, and this shall
be the unity of counting one, two or more sitios; five sitios shall
compose one hacienda."
"Art. 7. One labor shall be composed of one million square
varas, that is to say, one thousand varas on each side, which
measurement shall be the unity for counting one, two or more
labors. These labors can be divided into halves and quarters, but
not less."
"Art. 8. To the colonists whose occupation is farming, there
cannot be given less than one labor, and to those whose occupation
is stock raising, there cannot be given less than one sitio."
"Art. 9. The government of itself or by means of the authorities
authorized for that purpose, can augment said portions of land as
may be deemed proper agreeably to the conditions and circumstances
of the colonists."
"Art. 10. Establishments made under the former government which
are now pending shall be regulated by this law in all matters that
may occur, but those that are finished shall remain in that
state."
"Art. 11. As one of the principal objects of laws in free
governments ought to be to approximate, so far as is possible, to
an equal distribution of property, the government, taking
Page 169 U. S. 172
into consideration the provisions of this law, will adopt
measures for dividing out the lands, which may have accumulated in
large portions, in the hands of individuals or corporations, and
which are not cultivated, indemnifying the proprietors for the just
price of such lands to be fixed by appraisers."
"Art. 19. To each empresario who introduces and establishes
families in any of the provinces designated for colonization there
shall be granted at the rate of three haciendas and two labors, for
each two hundred families so introduced by him, but he will lose
the right of property over said lands should he not have populated
and cultivated them in twelve years from the date of the
concession. The premium cannot exceed nine haciendas and six labors
whatever may be the number of families he introduces."
"Art. 20. At the end of twenty years, the proprietors of the
lands acquired in virtue of the foregoing article must alienate
two-thirds part of said lands either by sale, donation, or in any
other manner he pleases. The law authorizes him to hold in full
property and dominion one-third part."
"Art. 21. The two foregoing articles are to be understood as
governing the contracts made within six months, as after that time,
counting from the day of the promulgation of this law, the
executive can diminish the premium as it may deem proper, giving an
account thereof to Congress with such information as may be deemed
necessary."
"Art. 22. The date of the concessions for lands constitutes an
inviolable law for the right of property and legal ownership;
should anyone, through error or by subsequent concession, occupy
land belonging to another, he shall have no right to it further
than a preference in case of sale at the current price."
"Art. 23. If, after two years from the date of concession, the
colonist should not have cultivated his land, the right of property
shall be considered as renounced, in which case the respective
ayuntamiento can grant it to another."
"Art. 24. During the first six years from the date of the
concession, the colonists shall not pay tithes, duties on their
produce, nor any contribution under whatever name it may be called.
"
Page 169 U. S. 173
"Art. 25. The next six years from the same date, they shall pay
half-tithes, and the half of the contributions, whether direct or
indirect, that are paid by the other citizens of the empire. After
this time, they shall in all things relating to taxes and
contributions be placed on the same footing with the other
citizens."
"Art. 29. Every person shall be free to leave the empire, and
can alienate the lands over which he may have acquired the right of
property agreeably to the tenor of this law, and he can likewise
take away from the country all his property by paying the duties
established by law."
There is a dispute as to the proper translation of section 4,
the original of which is:
"Art. 4. Las familias queporsi mismas vengan a establecerse, se
presentar an immediatamente al respectivo ayuntamiento del lugar en
que quieran radicarse, para que conforme a las ordenes con que se
hallen del gobierno se les designe por aquel cuerpo el terreno que
les corresponda segun la industria que van a plantear,"
and a translation thereof, as furnished by Mr. Tipton, a special
agent and Spanish expert of the Department of Justice in the office
of the United States Attorney for the Court of Private Land Claims,
is:
"Art. 4. The families who come of themselves to settle shall
present themselves immediately to the respective ayuntamiento of
the place at which they desire to establish themselves in order
that, in conformity with the orders which they have from the
executive, there be designated to them by that body the lands to
which they are entitled according to the industry which they are
going to undertake."
At the time of the enactment of this colonization law, Iturbide
was the Emperor of Mexico. Soon thereafter, a revolution followed.
He abdicated on March 20, 1823, and his banishment was ordered by a
decree of the Constituent Congress of Mexico, April 23d in these
words:
"The sovereign Constituent Congress of Mexico, in the session of
yesterday, decreed the following:"
"1. That the coronation of Agustin de Iturbide being an
Page 169 U. S. 174
act of violence and of force, and void in law, there is no
occasion to discuss the abdication he makes of the crown."
"2. Consequently, it also declares as void the hereditary
succession and the titles that have emanated from the coronation,
and that all the acts of the late government, from the 19th of May
to the 29th of March last, are illegal, but subject to revision by
the present Congress for their confirmation or revocation."
"3. The supreme executive authority will cause the prompt
departure of Agustin de Iturbide from the Territory of the
nation."
Article 10 of the original draft of the Treaty of Guadalupe
Hidalgo, as agreed upon between the commissioners representing this
government and Mexico, was as follows:
"Art. 10. All grants of land made by the Mexican government, or
by the competent authorities in territories previously appertaining
to Mexico and remaining for the future within the limits of the
United States, shall be respected as valid to the same extent that
the same grants would be valid if the said territories had remained
within the limits of Mexico. But the grantees of land in Texas, put
in possession thereof, who, by reason of the circumstances of the
country since the beginning of the troubles between Texas and the
Mexican government, may have been prevented from fulfilling all the
conditions of their grants, shall be under the obligation to
fulfill the said conditions within the periods limited within the
same, respectively, such periods to be now counted from the date of
the exchange of ratifications of this treaty, in default of which
the said grants shall not be obligatory upon the State of Texas in
virtue of the stipulations contained in this article. The foregoing
stipulation in regard to grantees of land in Texas is extended to
all grantees of land in the territories aforesaid elsewhere than in
Texas, put in possession under such grants, and in default of the
fulfillment of the conditions of any such grant within the new
period, which, as above stipulated, begins with the day of the
exchange of ratifications of this treaty, the same shall be null
and void."
(Message of the President of the United States, transmitting
papers relative to the Treaty
Page 169 U. S. 175
of Guadalupe Hidalgo, Feb. 8, 1849, Ex.Doc. 50, H.R. 30th Cong.,
2d Sess. p. 17.)
That article, however, was stricken out by the Senate of the
United States, and in the message of president Polk, the reasons
for its rejection are stated in the following language
(
ib. 32):
"The objection to the tenth article of the original treaty was
not that it protected legitimate titles, which our laws would have
equally protected without it, but that it most unjustly attempted
to resuscitate grants which had become mere nullities by allowing
the grantees the same period after the exchange of the
ratifications of the treaty, to which they had been originally
entitled after the date of their grants, for the purpose of
performing the conditions on which they had been made. In
submitting the treaty to the Senate, I had recommended the
rejection of this article. That portion of it in regard to lands in
Texas did not receive a single vote in the Senate. This information
was communicated by the letter of the Secretary of State to the
Minister of Foreign Affairs of Mexico, and was in possession of the
Mexican government during the whole period the treaty was before
the Mexican Congress, and the article itself was reprobated in that
letter in the strongest terms. Besides, our commissioners to Mexico
had been instructed"
"that neither the President nor the Senate of the United States
can ever consent to ratify any treaty containing the tenth article
of the Treaty of Guadalupe Hidalgo in favor of grantees of land in
Texas or elsewhere."
And again:
"Should the Mexican government persist in retaining this
article, then all prospect of immediate peace is ended, and of this
you may give them an absolute assurance."
And in the treaty as ratified were left the following
provisions, which guaranty only the rights of Mexicans to property
belonging to them in the territory (9 Stat. 929, art. 8):
"Mexicans now established in territories previously belonging to
Mexico, and which remain for the future within the limits of the
United States, as defined by the present treaty, shall be free to
continue where they now reside, or to remove
Page 169 U. S. 176
at any time to the Mexican Republic, retaining the property
which they possess in the said territories or disposing thereof and
removing the proceeds wherever they please, without their being
subjected, on this account, to any contribution, tax, or charge
whatever. . . . In the said territories, property of every kind now
belonging to Mexicans not established there shall be inviolably
respected. The present owners, the heirs of these, and all Mexicans
who may hereafter acquire said property by contract shall enjoy
with respect to it guaranties equally ample as if the same belonged
to citizens of the United States."
The act creating the Court of Private Land Claims (Act of March
3, 1891, c. 539, 26 Stat. 584), provides, in section 13, 26 Stat.
860:
"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 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."
The eighth subdivision of the same section also contains this
limitation:
"No concession, grant, or other authority to acquire land made
upon any condition or requirement, either antecedent or subsequent,
shall be admitted or confirmed unless it shall appear that every
such condition or requirement was performed within the time and in
the manner stated in any such concession, grant, or other authority
to acquire land. "
Page 169 U. S. 177
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The Court of Private Land Claims was of the opinion that the
ayuntamiento or town council had no power to make a grant, such as
this, of a tract entirely outside the four square leagues supposed
to belong to the town, and secondly that even if it had such power,
the conditions of the alleged grant were never performed by Heath,
and therefore he acquired no title to the property.
The colonization law of January 4, 1823, was in force only a
short time, having been suspended by the decree of April 11, 1823,
and superseded by the law of August 18, 1824. Few proceedings were
had under it, and therefore its true meaning cannot be considered
as determined by any settled usage of the Mexican authorities.
Indeed, counsel for appellants, with all their industry, have been
able to find but one other grant made or attempted to be made under
its authority. It is, to say the least, difficult to discern in
this law any warrant for an original grant by the ayuntamiento.
Article 2 provides that "the executive will distribute lands." This
is in accord with the settled policy of the old Spanish law, which
reserved to the King the power of granting lands. Doubtless this
power was often exercised under the directions of the King by
subordinate officials, but full control was retained by him. So
here, the executive retains the control of the distribution of
lands. It is true the article provides that such distribution shall
be "under the conditions and terms herein expressed," but that
simply means the conditions and terms under which the executive
will act. Article 3 refers to grants to empresarios, and
specifically declares that they "shall previously contract with the
executive," who will "designate the province to which they must
direct themselves; the lands which they can occupy." It is said
that Heath does not come
Page 169 U. S. 178
within the terms of this article because he did not propose to
introduce at least two hundred families, and this contention is
doubtless correct. Article 4, upon which the plaintiffs specially
rely, makes provision for families who emigrate "not included in a
contract," evidently referring thereby to the empresario contracts
specified in the preceding section. Such families are directed
to
"present themselves to the ayuntamiento of the place where they
wish to settle in order that this body, in conformity with the
instructions of the executive, may designate the lands
corresponding to them, agreeably to the industry which they may
establish."
Accepting the contention of plaintiffs that Heath comes within
the scope of this article, we note these limitations: the
emigrating families are to present themselves to the ayuntamiento
of the "place where they wish to settle," not the ayuntamiento of
the town nearest to the land upon which they wish to settle. The
natural meaning of this is that when families desire to settle
within the limits of a town, they shall present themselves to the
ayuntamiento of that town for a designation of the lands they may
occupy. It would be strange to find that a town council was
empowered to grant lands outside the limits of the town and
anywhere within the territory or department in which it was
situated, while it is not strange to find that council authorized
to locate emigrants upon those vacant lands, not exceeding four
leagues square, which, according to Spanish and Mexican custom,
were ordinarily appurtenant and subject to the jurisdiction of the
town. We do not mean to intimate that El Paso in fact possessed a
territory of four square leagues over which it had jurisdiction,
although that seems to have been the opinion of the Court of
Private Land Claims, for it said:
"El Paso, like other Spanish towns, is presumed to have had a
grant of four square leagues of land, and the ayuntamiento had the
power to make allotments of land within the four leagues so
granted."
This matter was considered in
United States v. Santa
Fe, 165 U. S. 675,
165 U. S. 699,
and the conclusion was reached, after full examination, that it was
not true under the Spanish law that every town was entitled to a
grant of four leagues square, the
Page 169 U. S. 179
Court saying:
"The inference to be deduced from all these documents supports
the theory that, under the Spanish laws as found in the
recopilacion, all towns are 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 the new
pueblos to be thereafter created."
Still, it was undoubtedly true that, by special grant or
contract, many towns did have such an area of contiguous and
dependent territory, and it would seem that this article gave the
ayuntamiento authority to designate such portion of those lands as
it deemed suitable to the industry which the emigrating families
proposed to undertake.
We notice another limitation in this article, and that is that
the designation by the ayuntamiento is to be made "in conformity
with the instructions of the executive." This contemplates, as
preliminary to the action of the ayuntamiento, some instructions
from the executive, either general or special. Within the letter of
this provision, the executive might, in a given case, authorize the
ayuntamiento of a particular town to designate lands outside of the
town lands proper for emigrating families; but surely in this
article there is no general grant of power to every town council to
give away lands anywhere within the territory or department without
any previous instructions or directions from the executive. Neither
is the power contended for to be found in article 23, which simply
authorizes the ayuntamiento, in case any colonist shall fail to
cultivate the land which has been given him, to regrant the same
tract to another. It might well he that the ayuntamiento should
have power after the lapse of a grant to regrant the same tract to
another party. But it does not follows therefrom that the power to
regrant lapsed lands implies a power to make an original grant.
Neither is the plaintiffs' case helped by the assertion that the
fact of a grant presumes the power to make it. Counsel quote from
United States v.
Peralta, 19 How. 343,
60 U. S.
347:
"The presumption arising from the grant itself makes it
prima facie
Page 169 U. S. 180
evidence of the power of the officer making it, and throws the
burden of proof on the party denying it."
Whatever may be the scope of this proposition, we find in these
proceedings a distinct declaration that the town council regarded
its action as only preliminary, and requiring for finality the
approval of the government. In the first resolution passed by the
ayuntamiento on the petition of Dr. Heath it is recited:
"1. That, saving the superior determination of the government to
which this shall be given, his proposals and petition are admitted,
and when he presents himself, the land he asks for shall be
assigned to him in these terms: the head [toma] of the Bracito
shall be the central point of the square of said 'hacienda' -- that
is to say, two and a half leagues in a straight line up the river,
and two and a half leagues down the river, the same being observed
in the sides that form the square."
And in the letter transmitting the proceedings to the governor,
it is said:
"The imitative circumstances of the new settlers, and the fact
that this corporation has no municipal ordinances regulating the
distribution of land that may be useful and beneficial in promoting
settlement, agriculture, arts, etc., place this corporation under
the necessity of making known to your superiority the resolution,
that your excellency may be pleased to dictate whatever may be your
pleasure in the matter, whether it be by yourself or after
consulting the most excellent provincial deputation."
And again:
"In order to avoid jealousies among private individuals and
interests of some breeders of stock who generally are prejudicial
to these in the development of agriculture and arts, it is observed
that this jurisdiction is just beginning, and at the same time gets
poorer and poorer if it is not given or provided with industries
and arts, and in order to have them in its territory, a means
therefor is that adopted by virtue of article 4, inasmuch as, to
reject it, difficulties would hereafter arise both because of the
scarcity in the national exchequer and the poverty of these
residents, for whom this ayuntamiento,
Page 169 U. S. 181
to which it very closely belongs to look out for their
happiness, has, without delay, put in operation the franchise of
the law; this corporation stating nevertheless that if it has erred
in anything, the concession has been made subject to the superior
determination."
"
* * * *"
"This ayuntamiento has found it convenient and worthy of public
confidence to bring all of the foregoing before your excellency and
the most excellent provincial deputation that you may in view
thereof order what may be just and convenient to remove
uncertainties and to proceed with certainty in every matter, which
is what is desired."
So that the ayuntamiento, assuming to act, declared specifically
that it did so "subject to the superior determination," and
submitted its action to the governor of the province.
Further, on the receipt of this communication by the acting
governor, it was presented to the provincial deputation, which
expressly disapproved the proposed grant and directed that notice
of its disapproval should be promptly communicated to Dr. Heath.
The language of the resolution passed by the provincial deputation
is clear. It declares that the action taken by the ayuntamiento was
not only with prejudice to the inhabitants of that jurisdiction,
but also in violation of law. It is true that it does not point out
wherein the violation of law consists, and refrains from further
observations on account of the repeal of the colonization law, but
it does direct the ayuntamiento to give notice to Heath, through
the United States minister or in some other manner, that the
possession given to him was "through a mistaken opinion and wrong
understanding in relation to the colonization law already
repealed," and that this notice should be given in order to prevent
any claim for damages in case Dr. Heath should introduce into the
province the families that he had offered to bring. Even if the
disapproval had been based solely on the fact that the colonization
law of 1823 had been repealed, that would have been sufficient, for
whatever might be adjudged the power of the ayuntamiento, and
although it might have made a grant without reference to the
provincial deputation
Page 169 U. S. 182
or the governor of the province, yet, for reasons which to it
were satisfactory, it expressly declared that the grant was subject
to their approval, and in case that approval was withheld, of
course, the grant never became operative.
The other case to which counsel refer, in which the ayuntamiento
assumed to act under the law of 1823 instead of supporting the
contention that it had absolute power in the matter, tends in the
other direction, and supports the opposite contention, for in that,
as in this, it referred its action for approval to the governor of
the province. That case was of a grant of a tract on the left side
of the Rio Grande, made to Don Jose Lerma by this same ayuntamiento
of El Paso, the proceedings in respect to which were introduced in
evidence. They show that, upon the petition of Lerma on August 23,
1823, the ayuntamiento passed a resolution declaring that it deemed
it proper to make the grant, but adding:
"Let all that has been done be brought to the knowledge of the
most excellent deputation of Chihuahua in order that it may approve
this grant if it be its superior pleasure."
In pursuance of this resolution, the application was presented
to the deputation of Chihuahua, which on October 10, 1823, approved
the proposed grant in the following words:
"Agreeably to the resolution of the enlightened council of the
Town of El Paso, this most excellent deputation have deemed it
proper to approve the grant of all the lands, woods, and 'sierras'
applied for by the resident Don Jose Lerma, it being of advantage
to the nation to open fields and to form settlements resulting in
public utility, that enlightened council being ordered to appoint a
commission that shall proceed to survey these lands and to give
possession to the party interested, in the name of the supreme
powers of the nation, of the lands, 'sierras,' woods, and
pasturages applied for by him on the left side of the Rio Bravo del
Norte."
On the receipt of such approval on October 30, 1823, the
ayuntamiento proceeded to pass this resolution:
"Having received the foregoing application and approbation of
the most excellent provincial deputation of Chihuahua to granting
and putting the resident Don Jose Lerma in possession
Page 169 U. S. 183
of the unimproved lands, woods, pasturages and 'sierras' for
which he made application for the purpose of settling on the line
of the Rio Bravo del Norte and on the left side from opposite the
'Ojo del Toro,' or be it the 'Sierra de todos Santos,' to the
'Sierra Blanca,' the enlightened council of this town, in
compliance with the order of said most excellent deputation,
resolved to appoint a commission of respectable and honorable
persons who shall proceed to survey and delineate those lands and
to put said Don Jose Lerma in possession thereof."
It also appointed a commission to set off the tract to Lerma. On
December 12, 1823, on the report of that commission, it entered the
following order:
"The land grant applied for by the resident Don Jose Lerma being
approved by the enlightened council and by the most excellent
provincial deputation of the City of Chihuahua, as is evidenced by
the foregoing proceedings carried on by the president of the
appointed commission, who is also the president of this
corporation, let this record be referred to its secretary for
taxation of the per diem and writing therein, according to the
tariff in force in this council, in order that the party interested
may be informed of the fees he must pay."
Even this action did not seem to resolve all doubts as to the
validity of this grant, for, in a petition presented by Lerma to
the Constitutional Governor of the State of Chihuahua in 1828, he
set forth the action of the ayuntamiento and the provincial
deputation in 1823, and the delivery to him of the tract, and then,
after alleging that the subsequent ayuntamiento refused to
acknowledge the validity of the grant, added:
"In these terms he appeals to your excellency, praying that he
be recognized in his rights of ownership of the lands which belong
to him, confirming him in his said property which was granted to
him in order that a settlement be formed in said lands, and that
the Council of the Town of El Paso be notified accordingly. I pray
for justice and make the necessary protestation at Paso del Norte,
May 12, 1828."
Upon such petition, the following action was taken:
"To the president of the Council of the Town of El Paso del
Norte: "
Page 169 U. S. 184
"The decree or title of possession ordered to be given by the
provincial deputation and the Council of El Paso del Norte in the
year 1823, whereby fifty leagues of land on the left side of the
Rio Bravo were granted to Don Jose Lerma, has been ratified and
confirmed by the second constitutional Congress of this state in
consideration of distinguished military services rendered to the
republic by the retired lieutenant Jose Lerma."
"Therefore this government considers that the land transferred
by the granted bounty as an exclusive property of the said Lerma,
ratifying it in all its parts. The Council of El Paso del Norte
will act accordingly. God and liberty."
"Chihuahua, June 30, 1828."
This order of the governor, as will be seen, did not rest the
validity of the grant upon the action of the ayuntamiento, or even
upon its action as approved by the provincial deputation, but
recited that the title had been ratified and confirmed by the
Second Constitutional Congress of the state. So that the only other
case in which, as said by counsel, action was taken, under this law
of 1823, by any ayuntamiento, clearly shows that it did not
understand that it had absolute power, but that its proceedings
required approval by the provincial deputation or some higher
authority. The Court of Private Land Claims was right in its
conclusions that no final grant had ever been made to Dr. Heath of
the tract in controversy.
But it is unnecessary to rest the case upon this alone, for even
if the ayuntamiento had full and final jurisdiction in the premises
and had made an absolute and unconditional grant -- one beyond the
power of any superior authority to disapprove and annul -- still we
think the judgment of the Court of Private Land Claims was right
because, as indisputably appears from the evidence, when Dr. Heath
came with his colonists to take possession of the tract, the
Mexican authorities repudiated the alleged grant, denied his
rights, and practically drove him from the country. Not only that,
but, as the record shows, the Mexican government thereafter granted
to other parties large portions of the same tract. The disavowal,
repudiation, expulsion, and subsequent grants were in no respect
the irregular acts of a mere mob or other unauthorized parties.
They
Page 169 U. S. 185
were the deliberate official proceedings of the duly constituted
authorities of the Mexican government. This repudiation commenced
in 1824, and continued until the cession of territory to the United
States under the Treaty of Guadalupe Hidalgo. During all those
years, so far as the record shows, no action was taken by Dr. Heath
to enforce his claim or recover damages from the government of
Mexico for the alleged wrongs done him. Neither were any
proceedings taken by him, or those claiming under him, from the
treaty of cession until the presentation of this petition before
the Court of Private Land Claims. In other words, for seventy years
(more than twenty of which the land was within the dominion of the
government of Mexico), this claim was permitted to lie dormant.
Other people have passed into possession of parts at least, of the
tract, and are occupying it under subsequent grants from that
government. Twice during this lapse of time was provision made for
an adjustment of claims of citizens of the United States against
the government of Mexico. On April 11, 1839, a convention was
entered into between the two nations referring to four
commissioners all claims of citizens of the United States against
Mexico which had been presented to this government for
consideration. 8 Stat. 526. And again, in the Treaty of Guadalupe
Hidalgo, there was a further provision of like nature. 9 Stat. 922.
Article 14 of that treaty released the Mexican government in these
words:
"The United States do furthermore discharge the Mexican Republic
from all claims of citizens of the United States, not heretofore
decided against the Mexican government, which may have arisen
previously to the date of the signature of this treaty, which
discharge shall be final and perpetual, whether the said claims be
rejected or be allowed by the board of commissioners provided for
in the following article, and whatever shall be the total amount of
those allowed."
The fifteenth article, which created the commission, directed
that it should be guided and governed by the principles and rules
of decisions prescribed by the first and fifth articles of a prior
unratified convention, and in the first of those articles it was
provided:
Page 169 U. S. 186
"The said commissioners, thus appointed, shall, in the presence
of each other, take an oath to examine and decide impartially the
claims submitted to them, and which may lawfully be considered,
according to the proofs which shall be presented, the principles of
right and justice, the law of nations, and the treaties between the
two republics."
So that if Dr. Heath had any claim against the Mexican
government on account of being deprived of this alleged grant, he
could, by a presentation of it under one or other of these
treaties, have received full compensation. The fact that he made no
claim is persuasive evidence that he did not understand that what
had taken place amounted to a complete grant.
Further, when the United States received this territory under
the Treaty of Guadalupe Hidalgo, they refused to recognize as still
valid and enforceable all grants which had been assumed to be made
prior thereto by the Mexican authorities. Article 10, as proposed
by the commissioners, was rejected by this government and stricken
out from the treaty. That article not only contemplated binding
this government to respect all grants which would have been
recognized as valid by the government of Mexico if no cession had
been made, but also proposed to give to grantees who had failed to
perform the conditions of their grants, and whose failure to
perform might be deemed to have avoided the grants, further time to
perform the conditions. By the rejection of this article, this
government distinctly declared that it did not propose to recognize
any grants which were not at the time of the treaty of cession
recognized by the Mexican government as valid, or any whose
conditions, either precedent or subsequent, had not been fully
performed.
In this respect, the action taken was in harmony with the
general rule of international law. It is the duty of a nation
receiving a cession of territory to respect all rights of property
as those rights were recognized by the nation making the cession,
but it is no part of its duty to right the wrongs which the grantor
nation may have theretofore committed upon every individual. There
may be an exception when the
Page 169 U. S. 187
dispossession and wrong of the grantor nation were so recently
before the cession that the individual may not have had time to
appeal to the courts or authorities of that nation for redress. In
such a case, perhaps, the duty will rest upon the grantee nation;
but such possible exception has no application to the present case,
and in no manner abridges the general rule that among the burdens
assumed by the nation receiving the cession is not the obligation
to right wrongs which have for many years theretofore been
persisted in by the grantor nation. Because Mexico had, more than
twenty years before the cession, forcibly taken from Dr. Heath land
that was rightfully his, and given part or all of it to other
persons, it does not follow that when the United States accepted
the cession, they came under obligations to do that which Mexico
had failed to do -- place Dr. Heath in possession and restore to
him the land of which he had been thus wrongfully deprived. Such
action, if taken, might well expose this government to just claims
for compensation in behalf of the subsequent grantees of Mexico,
who apparently took no personal part in the wrongs done to Heath.
Dr. Heath may have had a claim against Mexico for those wrongs, but
he failed to prosecute his claim in the way prescribed, and he
cannot now make his failure to pursue such prescribed way a reason
for enforcing a title which that nation had refused to recognize.
So long as Mexico repudiated his claim to this tract, his only
recourse was by direct appeal or through the intervention of this
government to seek compensation for the property of which he had
been deprived. When this government accepted the cession of the
territory, it did not thereby assume an obligation to satisfy any
pecuniary demands which he, as an individual, may have had against
the Mexican government. In other words, it took that territory
bound to respect all rights of property which the Mexican
government respected, but under no obligations to right the wrongs
which that government had theretofore committed.
But even if there were an obligation on the part of this
government, either under the general rules of international law or
the terms of the treaty of cession, to recognize plaintiffs'
Page 169 U. S. 188
claim to this particular tract, yet the time, manner, and
conditions of enforcing it would depend upon the will of Congress.
And, in creating the Court of Private Land Claims, Congress has
prescribed the character of claims which that court may determine
and the conditions which must attach to any claim which it may
enforce. This claim, even if the grant in its inception was valid,
was not one which it was within the province of the Court of
Private Land Claims to approve and confirm. The eighth clause of
section 13 forbids the confirmation of a grant made upon any
condition or requirement, either antecedent or subsequent, unless
it appears that such condition and requirement had been performed
within the time and in the manner stated in the grant. That certain
conditions or requirements were attached to this grant is evident
from a perusal of the application and the order. That they were not
performed is admitted by plaintiffs. Their contention is that
performance was prevented by the Mexican authorities, and, having
been prevented, it should be considered that performance was waived
and the title had become absolute. Whatever may be said as to the
duty of this government to treat a condition whose performance was
prevented by the Mexican authorities as a condition performed does
not detract from the proposition that the Court of Private Land
Claims is not vested with such power. It is a mere creature of
statute, with prescribed and limited powers. It has no general
equity jurisdiction. It can confirm a grant made upon condition
only when such condition was performed. It is not under the statute
at liberty to treat anything as equivalent to performance. Cases in
which there was no performance of the conditions of the grant are
cases which must be considered as reserved by Congress for further
action on its part. So that, under the terms of the act creating
the Court of Private Land Claims, even if there were no other
objections to the proceedings, the admitted fact that the
conditions and requirements of this grant were never performed is
sufficient to justify the ruling of the court in dismissing the
petition.
Of course, the observations above made may not be applicable
Page 169 U. S. 189
to a case in which the Mexican government had, subsequently to
the original grant and prior to the cession, waived the performance
of the conditions, for as it had power in the first instance to
make the grant without conditions, its action in subsequently
waiving or removing such conditions was equivalent to an original
grant without conditions.
We have not deemed it necessary to consider the matter of
limitations and laches. That this is an old claim is evident,
seventy years having elapsed between its inception and its
prosecution. Whether it must also be adjudged a stale claim and
beyond judicial recognition need not be determined. The other
reasons presented for its rejection are sufficient.
We see no error in the proceedings, and the judgment is
Affirmed.
