United States v. Ortiz, 176 U.
S. 422, affirmed and followed to the point that, in
order to justify the confirmation of a claim under an alleged
Mexican grant, under the Act of March 3, 1891, c. 539, 26 Stat.
854, it is essential that the claimants establish, by a
preponderance of proof, the validity of their asserted title.
The mere approval by the governor, endorsed on a petition
presented to him for a grant, before a reference to ascertain the
existence of the prerequisites to a grant, is not the equivalent of
a grant.
In order to vest an applicant under the regulations of 1828 with
title in fee to public land, it was necessary that the grant should
be evidenced by an act of the governor, clearly and unequivocally
conveying the land intended to be granted, and a public record in
some form was required to be made of the grant, and the action of
the legislative body could not lawfully be invoked for approval of
a grant unless the
expediente evidenced action by
the.governor, unambiguous in terms, as well as regular in
character.
The mere endorsement by a Mexican governor of action on the
petition, before any of the prerequisite steps mentioned in the
regulations of 1828 had been taken to determine whether, as to the
land and the applicants, the power to grant might be exercised was
a mere reference by the governor to ascertain the preliminary facts
required to justify an approval of an application, and had no force
and effect as an actual grant of title to the land petitioned
for.
Although the documents in question in this case, executed by the
prefect and the justice of the peace, fairly import that those
officials assumed authority to grant something as respected the
land in question, they did not, in 1845, possess power to grant a
title to public lands.
The alleged Mexican grant which forms the subject of this
controversy relates to a tract of land situate in the County of
Page 177 U. S. 105
Taos, New Mexico, embraced in what is designated as the Cebolla
grant. The asserted grant was presented in 1872 for confirmation to
the Surveyor General of New Mexico, under the Act of July 2, 1854,
by John T. Graham and William Blackmore, who averred that they
possessed a perfect title to the land covered by the grant, by
reason of mesne conveyances from the original grantees. This claim
so presented was favorably reported to Congress, but it does not
appear that any action was taken thereon. Upon a survey made by the
direction of the General Land Office in November, 1877, the area
embraced in the alleged grant was declared to consist of 17,159.57
acres. The controversy now here for review was commenced by
proceedings instituted in the Court of Private Land Claims to
obtain a confirmation of this alleged grant. The petition to that
end was filed on February 18, 1893, on behalf of the present
appellees, who asserted that they were the owners of the Cebolla
tract by purchase from the heirs and assigns of the original
grantees. The alleged grant was asserted to have been made on
December 31, 1845, by Manuel Armijo, Governor of New Mexico, and
the papers claimed to evidence such grant, as translated, are
reproduced in the margin. [
Footnote
1]
Page 177 U. S. 106
It was averred in the petition with respect to the survey above
referred to, that it was not made in accordance with the
boundaries
Page 177 U. S. 107
set forth in the grant, but was "of a different portion of land,
a part or all of which is included in the said grant." The
Page 177 U. S. 108
Court of Private Land Claims entered a decree (Murray, J.,
dissenting) defining the boundaries of the tract covered by the
claim as allowed and confirming title thereto in "the heirs and
assigns of said five original grantees and to their heirs and
assigns." The United States thereupon appealed to this Court.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
It is contended that the court below erred in confirming the
alleged grant --
1. Because the documents relied upon, assuming them to be
genuine, do not show that a grant was made, for the reason that, on
their face they do not purport to be a grant by the governor of New
Mexico,
2. Even if the papers can, on their face, be construed as
importing a grant by the governor, the claimants were not entitled
to confirmation, because there was no archive evidence of the
alleged grant and no inscription of the same in the records of the
former government,
3. That the governor of New Mexico was without authority to make
a grant of public lands at the time the papers relied upon purport
to have been executed, and
4. That even if it be conceded that the governor, at the time in
question, had power to make a grant, and that the papers are held
to be a manifestation of his purpose to do so, yet, because
Page 177 U. S. 109
of a failure to show compliance with essential conditions
exacted by the Mexican law, the claimants have not established such
a case as entitles them to a decree of confirmation.
The matters embraced in the two last propositions involve legal
questions of serious moment, which have been elaborately discussed
at bar but are unnecessary to be considered, if at all, until the
subjects covered by the first two contentions are disposed of.
Before approaching a consideration of the two first questions,
which logically come under one head, we premise by stating that, in
order to justify the confirmation of a claim, under the Act of
March 3, 1891, it is essential that the claimants establish, by a
preponderance of the proof the validity of their asserted title.
United States v. Ortiz, 176 U. S. 422.
To ascertain whether the papers relied upon constitute a grant
of title to land, and to determine whether the existence of archive
evidence of a grant is an essential prerequisite to the
confirmation of the alleged title, it is necessary to briefly
recapitulate the provisions of the Mexican colonization law of 1824
and the regulations of 1828 thereunder, and to review previous
adjudications on the subject of the form required by Mexican law to
manifest that the power to grant had been exercised. It is
necessary to do this since it is undoubted that, although it be
conceded that the governor of the Territory of New Mexico possessed
power in 1845 and 1846 to make a grant of public lands situated
within that territory, nevertheless the right to exercise such
power, as well as the documents by which it was essential to
manifest the calling into play of the power, were derived from and
were dependent upon the colonization law and the regulations
thereunder just mentioned.
The law of 1824 was enacted to provide for the colonization of
vacant public lands, and the regulations were adopted for the
purpose of executing the powers which the law conferred. Certain
articles or sections of the regulations of 1828, to which we shall
hereafter have occasion to refer, are printed in the margin.
[
Footnote 2]
Page 177 U. S. 110
In brief, the regulations of 1828, adopted to carry into effect
the law of 1824, required every applicant for a grant of land to
present a petition to the executive head of the territory,
alleging
Page 177 U. S. 111
the existence of certain facts. That official was directed to
obtain information as to whether or not the necessary conditions
authorizing the making of a grant existed, and upon the receipt of
such information, the application was to be granted or rejected in
strict conformity to law. As respected grants to heads of families
or private persons, the "proceedings" culminating in a grant were
required to be forwarded to the legislative body of the territory
for its approval, until which approval grants were not to be
definitively valid, while grants to contractors for the
colonization of many families required the approval of the supreme
government, to whom the proceedings were to be sent for its
action.
Concerning the fourth article or section of the regulations,
this Court said, in
De Arguello v. United
States, 18 How. 539,
59 U. S.
543:
"By the fourth section, the governor, being thus informed, may
'accede or not' to the prayer of the petition. This was done in two
ways -- sometimes he expressed his consent by merely writing the
word '
concedo' at the bottom of the
expediente,
at other times it was expressed with more formality, as in the
present case. But it seldom specified the boundaries, extent, or
conditions of the grant. It is intended merely to show that the
governor has 'acceded' to the request of the applicant, and as an
order for a patent or definitive title in due form to be drawn out
for execution. It is not itself such a document as is required by
the eighth section, which directs that 'the definitive grant asked
for being made, a document signed by the governor shall be given to
serve as a title to the parties interested.'"
That the mere approval by the governor endorsed on a petition
presented to him for a grant, before a reference to ascertain the
existence of the prerequisites to a grant, or indeed the action of
the governor antecedent to the actual execution by him of a formal
grant which was required by law, was not the equivalent
Page 177 U. S. 112
of the grant, was clearly decided. The court, referring to a
mere approval of a claim for land, said:
"The document of the 26th has none of the characteristics of a
definitive grant. It shows only that the governor assents that the
petitioner shall have a grant of a tract of land called 'Las
Pulgas.' It describes no boundary, and ascertains no quantity. It
contemplates a 'corresponding patent,' and does not purport itself
to be such document."
In
Hornsby v. United
States, 10 Wall. 224, the court considered the
requirement of article 5 of the regulations. It was declared to
have been the duty of the governor, and not of the grantee, to
submit to the legislative body of a Territory of the Republic of
Mexico, for its approbation, grants issued by the governor; that,
by a grant, regular in form and of which archive evidence existed,
a title of some kind passed to the applicant, and that, as
respected such a grant, under the powers conferred on the court by
the California act, a failure to obtain juridical possession or the
approval of the departmental assembly, prior to the treaty of
cession, did not operate to forfeit the title of the grantee or
prevent a confirmation of a claim based on such grant. Whether this
rule applies under the Act of March 3, 1891, is one of the
questions embraced in the propositions which we have postponed
considering, and as to which therefore we presently intimate no
opinion whatever.
The "proceedings" which by article 5 of the regulations were to
be forwarded to the legislative body were termed an
expediente. What was embraced in the
expediente
is thus stated in
United States v.
Moorehead, 1 Black 227,
66 U. S.
245.
"When complete, an
expediente usually consists of the
petition, with the
diseno annexed; a marginal decree
approving the petition; the order of reference to the proper
officer for information; the report of that officer in conformity
to the order, the decree of concession and the copy or a duplicate
of the grant. These several papers -- that is, the petition with
the
diseno annexed, the order of reference, the
informe, the decree of concession and the copy of the
grant, appended together in the order mentioned -- constitute a
complete
expediente within the meaning of the Mexican law.
"
Page 177 U. S. 113
And in
United States v.
Larkin, 18 How. 561, this Court, speaking of the
final order or decree by a governor exhibiting favorable action
upon an application, it was expressly declared that a "concession
and direction constitute a part of the evidence of the title, or,
according to the Mexican vocabulary, a part of the
expediente.'"
In
Fuentes v. United
States, 22 How. 443, the nature and importance of
an
expediente was commented upon. In that case,
confirmation was sought of a purported grant without the production
of an
expediente. The Court said (p.
63 U. S.
453):
"The case, then, stands altogether disconnected from the
archives, and exclusively upon the paper in the possession of
Fuentes. It has no connection with the preliminary steps required
by the Act of Mexico of the 18th of August, 1824, or with the
regulations of November 28, 1828. It is deficient in every
particular -- unlike every other case which has been brought to
this Court from California. There was no petition for the land; no
examination into its condition, whether grantable or otherwise;
none into the character and national status of the applicant to
receive a grant of land; no order for a survey of it; no reference
of any petition for it to any magistrate or other officer, for a
report upon the case; no transmission of the grant -- supposing it
to be such -- to the departmental assembly or territorial
legislature, for its acquiescence; nor was an
expediente
on file in relation to it according to the usage in such
cases."
"All of the foregoing were customary requirements for granting
lands. Where they had not been complied with, the title was not
deemed to be complete for registration in the archives, nor in a
condition to be sent to the departmental assembly for its action
upon the grant. The governor could not dispense with them with
official propriety, nor shall it be presumed that he has done so,
because there may be, in a paper said to be a grant, a declaration
that they had been observed, particularly in a case where the
archives do not show any record of such a grant."
That the proceedings evidenced by the
expediente may be
examined in passing upon the claim of a grant in fee was expressly
adjudicated in
De Haro v. United
States, 5 Wall. 599.
Page 177 U. S. 114
Speaking of the execution of a grant in duplicate, it was said
in
United States v.
Osio, 23 How. 273,
64 U. S.
279.
"Grants under the colonization laws were usually issued in
duplicates -- one copy being designed for the party to whom it was
made and the other to remain in the archives to be transmitted with
the
expediente to the departmental assembly for its
approval. They were in all respects the same, except that the copy
left in the office, sometimes called the duplicate copy, was not
always signed by the governor and secretary, and did not usually
contain the order directing a note of the grant to be entered in
the office where land adjudications were required to be
recorded."
As shown in the excerpt of article 9 of the regulations of 1828,
it was required that a record should be made of the applications
presented and grants made. Concerning this provision, this Court,
in the case last cited, said (p.
64 U. S.
279):
"Adjudications of land titles were required by the Mexican law
to be recorded. That requirement, however, was regarded as
fulfilled, according to the practice in the Department of
California, when a short entry was made in a book kept for the
purpose specifying the number of the
expediente, the date
of the grant, a brief description of the land granted, and the name
of the person to whom the grant was issued."
Again, referring to article 9, in
United
States v. Bolton, 23 How. 341, this Court said (p.
64 U. S.
350):
"Sec. 11 [9?] directs that a proper record shall be kept of all
the petitions presented and grants made, with maps of the lands
granted."
"This record is the evidence of grant. It being made, the
governor (sec. 8) shall sign a document and give it to the party
interested to serve as a title, wherein it must be stated that said
grant (to-wit,
the record) is made in exact conformity
with the provisions of the laws. In virtue of this document issued
to the party, possession of the lands shall be given, but the
document is not sufficient of itself to prove that the governor has
officially parted with a portion of the public domain and vested
the land in an individual owner. This must be established before
the board of commissioners by record evidence,
Page 177 U. S. 115
as found in the archives, or which had been there and has been
lost."
As instructive upon the point now under consideration, we quote
from the opinion delivered in
Pico v. United
States, 2 Wall. 279:
"The regulations of 1828, which were adopted to carry into
effect the colonization law of 1824 prescribed with great
particularity the manner in which portions of the public domain of
Mexico might be granted to private parties for the purposes of
residence and cultivation. It is unnecessary to state the several
proceedings designated, as they have been the subjects of frequent
consideration in previous opinions of this Court. All of them, from
the petition of the colonist or settler to the concession of the
governor, were required to be in writing, and when the concession
was made, to be forwarded to the departmental assembly for its
consideration. The action of that body was entered with other
proceedings upon its journals, and these records, together with the
documents transmitted to it, were preserved among the archives of
the government in the custody of the secretary of state of the
department. The approval of the assembly was essential to the
definitive validity of the concession, and when obtained, a formal
grant was issued by the governor to the petitioner. The regulations
contemplated an approval to precede the issue of the formal grant,
so when the grantee received this document, the concession should
be considered final. For a long time after the adoption of the
regulations, this course of proceeding was followed, but
afterwards, and for some years previous to the conquest, a
different practice prevailed, and the formal title papers were
issued without waiting for the action of the assembly, a clause
being inserted to the effect that the grant was subject to the
approval of that body. Of the petitions presented and grants
issued, whether before or after the approval of the assembly, a
record was required to be kept in suitable books provided for that
purpose."
"As will be perceived from this statement, it was an essential
part of the system of Mexico to preserve full record evidence of
all grants of the public domain, and of the various
Page 177 U. S. 116
proceedings by which they were obtained. When, therefore, a
claim to land in California is asserted under an alleged grant from
the Mexican government, reference must, in the first instance, be
had to the archives of the country embracing the period when the
grant purports to have been made. If they furnish no information on
the subject, a strong presumption naturally arises against the
validity of the instrument produced, which can only be overcome, if
at all, by the clearest proof of its genuineness, accompanied by
open and continued possession of the premises."
In
Peralta v. United
States, 3 Wall. 434, there was considered the
validity of an alleged grant claimed to have been made in the early
part of 1846. The grant was attempted to be established by the
introduction in evidence, from private hands, of an
expediente embracing documents exhibiting the proceedings
had preliminary to the making of the alleged grant, including an
order of the governor, based upon the report of a prefect, that a
title issue, and parol proof of the execution of a formal grant. In
the course of the opinion affirming the decree of the district
court rejecting the grant, the Court reiterated former
declarations, saying (p.
70 U. S.
440):
"The colonization regulations of 1828 constitute the 'laws and
usages' by which the validity of a Mexican title is to be
determined. It is not important to restate the nature and extent of
those regulations, for they have been so often commented on that
they are familiar to the profession. The Mexican nation attached a
great deal of form to the disposition of its lands, and required
many things to be done before the proceedings could ripen into a
grant. But the important fact to be noticed is that a record was
required to be kept of whatever was done. This record was a guard
against fraud and imposition, and enabled the government to
ascertain with accuracy what portions of the public lands had been
alienated.
The record was the grant, and without it, the
title was not divested. The governor was required to give a
document to the party interested, which was evidence of title, and
enabled him to get possession; but this '
titulo' did not
divest the title unless record was made in conformity with law.
"
Page 177 U. S. 117
The solemnity of juridical possession as connected with the
investiture of a private person with a complete and perfect title
to public lands of Mexico has been commented upon in various
decisions of this Court.
Malarin v. United
States, 1 Wall. 289;
Graham v.
United States, 4 Wall. 259;
Van Reynegan v.
Bolton, 95 U. S. 33;
United States v.
Pico, 5 Wall. 536, and
More v. Steinbach,
127 U. S. 70.
In
Malarin v. United States, discussing the claim of
the execution of an alleged grant of public lands in the Territory
of California in 1840, the Court said (p.
68 U. S.
289):
"When the grant to Pacheco was issued, there still remained
another proceeding to be taken for the investiture of the title.
Under the civil as at the common law, a formal tradition or livery
of seisin of the property was necessary. As preliminary to this
proceeding, the boundaries of the quantity granted had to be
established when there was any uncertainty in the description of
the premises. Measurement and segregation in such cases therefore
preceded the final delivery of possession. By the Mexican law,
various regulations were prescribed for the guidance in these
matters of the magistrates of the vicinage. The conditions annexed
to the grant in the case at bar required the grantee to solicit
juridical possession from the proper judge. In compliance with this
requirement, within four months after the issuance of the grant, he
presented the instrument to the judge of the district and requested
him to designate a day for delivering the possession. The judge
designated a day and directed that the adjoining proprietors be
cited and that measurers and counters be appointed. On the day
designated, the proprietors appeared and two measurers and two
counters were appointed and sworn for the faithful discharge of
their duties. A line provided for the measurement was produced and
its precise length ascertained. The measurers then proceeded to
measure off the land, the judge and the proprietors accompanying
them. The measurement being effected, the parties went to the
center of the land, and there the judge directed the grantee to
enter into the possession, which he did, and gave evidence of the
fact 'by pulling up grass and making demonstrations as owner of the
land.' Of the various steps thus taken, from the
Page 177 U. S. 118
appointment of the day to the final act of delivery, a complete
record was kept by the judge, and by him transmitted to the grantee
after being properly entered upon the 'book of possessions.'"
It appears from the adjudications of this Court that the formal
grants made to land in the Territory of California enumerated
conditions attached to the grant, in seeming compliance with the
spirit if not the letter of the Mexican colonization law and with
the exactions of the regulations adopted to execute the same. It
certainly cannot be questioned that under Spanish dominion, the
public lands were not granted in the first instance in fee to
settlers or colonists, freed from conditions. As said by this Court
in
Chaves v. United States, 168
U. S. 188, speaking of the Spanish law in force in
1788:
"Lots and lands were distributed to those who were intending to
settle, and it was provided that"
"when said settlers shall have lived and labored in said
settlements during the space of four years, they are hereby
empowered, from the expiration of said term, to sell the same and
freely to dispose of them at their will as their own property."
"But confirmation by the
audiencia, or the governor if
recourse to the
audiencia was impracticable, after the
four years had elapsed, was required in completion of the legal
title."
The constituents of the preliminary papers leading up to a grant
and of the grant itself, and the distinction between them, to which
attention had been so often directed by this Court was pointedly
reiterated in the statement of the case made by MR. CHIEF JUSTICE
FULLER in
Ainsa v. United States, 161
U. S. 219, as follows:
"An
expediente is a complete statement of every step
taken in the proceedings, and a
testimonio is the first
copy of the
expediente. A grant of [or?] final title
paper[s] is attached to the
testimonio and delivered to
the grantee as evidence of title, and entry is made at the time in
a book called the
Toma de Razon, which identifies the
grantee, date of the grant, and property granted."
It is manifest from the foregoing review of the decisions under
the California act that it was held that, in order to vest an
Page 177 U. S. 119
applicant under the regulations of 1828 with title in fee,
either absolute and perfect or conditional and imperfect, to public
land, substantial compliance with the preliminary requisites to a
grant was essential, it was necessary that a grant should be
evidenced by an act of the governor, clearly and unequivocally
conveying the land intended to be granted, and a public record in
some form was required to be made of such grant.
As a corollary from the foregoing, it of course follows that the
action of the legislative body could not lawfully be invoked for
the approval of a grant unless the
expediente evidenced
action by the governor, unambiguous in terms as well as regular in
character.
Although it be assumed that there was a settled practice in New
Mexico prior to the treaty of cession to evidence a grant of land
by a decree of the governor entered upon the reports made to him,
without the execution of an independent and formal grant, such
assumption would not avail in this case. For undoubtedly it would
be essential in a paper of the character referred to that it should
indicate the land to which the grant referred and the persons to
whom it was made, and further that there should be a record
thereof. It is patent that the regulations contemplated that the
original "proceedings" or
expediente which were to be
forwarded to the departmental assembly, if evidencing the fact that
a grant had actually been made, should remain in the custody of the
public officials, and that such "proceedings," to be complete,
should exhibit the action taken by the governor after the
ascertainment of the prerequisites required by law.
Inspecting, then, the alleged granting papers on the assumption
of their genuineness, we proceed to determine whether or not they
justify the contention that thereby a valid grant of any kind was
made. In doing so, let us consider first the form of the alleged
granting papers, and second their substance.
The only ground for contending that there was a grant by the
governor must rest on the inference that the endorsement by the
official named, on the petition of Santistevan, manifested the
purpose of the governor to grant an absolute title to land, and
operated to constitute a formal deed of grant. The endorsement thus
referred to is as follows:
Page 177 U. S. 120
"Santa Fe,
December 31, 1845"
"To the prefect of the district, that he ascertain whether the
land applied for has an owner, and cause the corresponding justice
to deliver the land referred to by the petitioner."
"Armijo"
"Juan Bautista Vigil y Alarid,
Secretary"
But, under all the authorities to which we have referred, the
mere endorsement by a Mexican governor of action on the petition,
before any of the prerequisite steps mentioned in the regulations
of 1828 had been taken to determine whether as to the land and the
applicants the power to grant might be exercised, was treated as a
mere reference by the governor to ascertain the preliminary facts
required to justify an approval of an application, and not as
having force and effect as an actual grant of title to the land
petitioned for. Under the decisions referred to, it cannot be
doubted that the regular practice was deemed to be the execution of
a formal deed of grant, following a decree acceding to the
application, after reports made as to the results of the
investigation directed to be had as required by law.
Whilst, as we have said, it may have been the practice in New
Mexico for the governor not to make an independent, formal grant,
but, after the receipt of reports from subordinate officials, to
endorse a decree of concession or grant upon the papers evidencing
the "proceedings" in the matter, such practice would not justify
the conclusion that the mere approval endorsed on a petition,
amounting but to a direction to take the necessary steps for the
ascertainment of needed information, should be treated as
dispensing with any manifestation by the governor of his intention
to grant a title to land after the requisite information had been
communicated to him. It is manifest that the prefect to whom the
endorsement by the governor on the petition was addressed did not
consider it as a grant of title to the tract of land in question,
since he directed the justice of the peace, if the land was vacant
and third parties would not be injured thereby, to
"proceed to grant them of the land an abundance of what each can
cultivate, under the condition that they enclose the same with a
regular fence, in order to prevent damage, and that they do not
obstruct the roads, pastures, and watering
Page 177 U. S. 121
places, and with notice that they should keep arms sufficient
for their defense."
Now it is undoubted that the documents executed by the prefect
and the justice of the peace fairly import that those officials
assumed authority to grant something as respected the land in
question, either title or a right of possession for purposes of
cultivation, but it is beyond controversy that the officials
referred to did not, in 1845, possess power to grant the title to
public lands.
Hays v. United States, 175 U.
S. 248;
Crespin v. United States, 168
U. S. 215;
United States v. Bergere,
168 U. S. 66. If,
however, the subordinate officials referred to presumed to act on
behalf of the governor in making a grant of title, the failure of
the latter to subsequently ratify their action rendered their acts
nugatory.
United States v. Bergere, 168 U. S.
66.
As a grant of title by the governor was a prerequisite to the
conferring of juridical possession, of necessity, the delivery
thereof must have conformed to such precedent grant, and the mere
act of possession cannot in any view have the force and effect of a
grant. The document evidencing possession certainly formed no part
of the "proceedings" or
expediente which was required to
be transmitted to the legislative body for its decision approving
or disapproving action taken by the governor antecedent to the
giving of possession.
Passing, however, from the mere question of form and considering
the substance of things, can the papers relied upon be treated as
constituting a grant of title to the land in question? Certainly,
the adjudications of this Court upon the regulations of 1828, from
the beginning, have established the doctrine that a grant of
Mexican land could not be confirmed unless there had been at least
a reasonable compliance with the requirements of those regulations.
Now the Mexican law under which, if at all, a grant of this land
could have been made, required the governor to be informed both as
to the capacity of the individual under the law to receive the
grant, and as to whether the land petitioned for was in a condition
for grant. And whilst exacting that the governor should thus have
the means of information in order to enable him to form a judgment,
the law pointed out the officials to whom he should refer the
petition for examination and report on these subjects.
Page 177 U. S. 122
Now in the case before us, that the governor at the inception of
the proceedings was not sufficiently informed, either as to the
land or the applicants, to take final action upon the petition is
patent on the face of the documents. Thus the petition does not
designate who were the "five" associates of Santistevan, and the
governor in his endorsement requires the prefect to ascertain the
condition of the land. Further, though the prefect was not informed
either by the petition or the endorsement of the governor as to who
were the petitioners to whom delivery of the land was to be made,
he remained ignorant on the subject, and directed the justice of
the peace to ascertain the condition of the land and to grant to
the "petitioners" (asserted in the petition of Santistevan to be
six in number) an abundance of what each could cultivate of the
land under certain prescribed conditions. We find, however, the
justice of the peace assuming to grant to "
five
petitioners" jointly either a title to or the right of possession
of all the land within described boundaries.
Regarded as a grant of title, the documents relied upon import,
contrary to the letter and spirit of the regulations, that it was a
matter of no consequence to what particular individuals a grant was
to be made, and that Santistevan might designate, at his pleasure,
the persons to be placed with himself in possession. But by article
3 of the regulations, the determination whether the conditions
required by the colonization law existed, "both as regards the land
and the applicant," was imposed upon the executive head of the
territory. And, as already shown, the grant could not have been
created by the mere conferring of juridical possession, since the
authority to give possession was necessarily derived from and must
have conformed to a precedent grant.
It is manifest that the endorsement of Governor Armijo,
considered by itself or in conjunction with the petition, failed to
identify the petitioners, and did not in terms purport to grant
title to land. As Santistevan petitioned that the grant be made by
the governor "in the name of the high powers of our Mexican
Republic," it is not permissible to infer that the governor
intended to delegate to subordinate officials the power to decide
whether an absolute or any title to the land petitioned for
should
Page 177 U. S. 123
be granted or to determine what portion thereof should be
granted. The reasonable interpretation of the act of the governor
would appear to be that he intended either to license the
occupation of land within the prescribed limits for cultivation or
that he desired an examination and report to be made, with a
delivery of temporary possession, pending further action on his
part.
When it is borne in mind that the application of Santistevan
purports to have been made at a time when hostilities were
impending between Mexico and the United States, and the Territory
of New Mexico was undoubtedly in a disturbed condition, its
citizens in all probability preoccupied with preparations for an
impending clash of arms, the inference from the documents we have
been considering is not unwarranted that but a mere temporary
possession or license was intended by the prefect and justice of
the peace to be conferred upon the applicants. Such an hypothesis
would account for the long delay following the direction of the
prefect to the justice of the peace, bearing date January 3, 1846,
and the delivery of possession on the 20th of March following. And
it is to be remarked that such a possession as could have been had
of the land in question, under then existing circumstances, during
the short time intervening the asserted delivery of possession and
the conquest of the country by the American forces, would have been
insufficient to have constituted even an equity in favor of the
alleged grantees which this Court could recognize were it clothed
with the broad powers conferred by the California act.
Peralta v. United
States, 3 Wall. 434,
70 U. S. 441. It
may be added that the record fails to satisfactorily establish any
occupancy or cultivation prior to the conquest, and but trifling
cultivation thereafter, and the latter by a portion only of the
alleged grantees.
To summarize. In the documents presented as establishing title
in the alleged original grantees, there is an entire disregard of
the requirements of the regulations of 1828, and the proceedings do
not warrant the finding that the acts of the prefect and of the
justice of the peace were ever reported to or received the approval
of the governor, or that the latter official ever made a grant of
title. The major portion of the documents
Page 177 U. S. 124
to constitute title, if regular, properly constituted part and
parcel of an
expediente belonging to the archives. They
however bear no endorsement to indicate that they had ever been
among public archives prior to their production in 1872 from
private custody for filing in the office of the Surveyor General of
New Mexico. So also, no evidence was introduced tending to show
that any sort of official record had ever been made of a grant of
title to the land in controversy, while the tenor of the act of
possession forbids the inference that any formal grant was ever
executed by the governor. The case is therefore without the
principle of various decisions of this Court where, with respect to
a formal grant, introduced in evidence,
complying with the
requirements of the regulations, but whose authenticity was
disputed, the case was remanded to the lower court to permit the
introduction of evidence, if such could be produced, to establish
that archive evidence of the grant once existed. One of the
prerequisites for the introduction of secondary evidence of title
is proof that a "grant was obtained and made in the manner the law
required."
United States v.
Castro, 24 How. 350.
Unless it be assumed that the Mexican government was indifferent
as to the disposition of its lands, and that anybody and everybody
possessed power to convey them as a matter of course to whoever
chose to ask for them, proceedings such as those we have reviewed
cannot be treated as having had the effect of divesting the
Republic of Mexico of title to a portion of its public lands.
Sustaining as we do the first two contentions urged by the
government, it becomes unnecessary to consider or pass upon the
others which were pressed upon our attention. As a consequence of
the foregoing reasons, it results that the claim should have been
rejected by the Court of Private Land Claims and that, because it
erroneously confirmed the alleged grant, the decree made below
should be
Reversed, and the cause remanded with instructions to reject
the claim and dismiss the petition, and it is so ordered.
MR. JUSTICE BREWER and MR. JUSTICE BROWN concur in the
result.
MR. JUSTICE SHIRAS and MR. JUSTICE McKENNA dissent.
[
Footnote 1]
"Seal Fourth [SEAL.] Two reales"
"
Years one thousand eight hundred and forty-two
and"
"
one thousand eight hundred and forty-three"
"
Habilitated for the years one thousand eight hundred and
forty-four"
"
and one thousand eight hundred and forty-five."
"Administrator Agustin Duran Governor Manuel Armijo"
"To his excellency Manuel Armijo, Governor of this Department of
New Mexico:"
"I, Carlos Santistevan, for myself and in the name of five other
associates, all residents of the Town of Dolores, in the District
of Taos, before your excellency in due legal form, represent and
state that finding without any land with title in fee to cultivate
for the support of ourselves and our needy families, and having
found a vacant tract very suitable tract for cultivation, irrigable
from certain water, said to be from the Lama, quite sufficient for
its irrigation at the place called by that name up to another
place, the Cebolla, which places are between the settlements of the
Rio Colorado and San Cristoval, pertaining to the said District of
Dolores de Taos, I ask and pray, from the well known and
distinguished liberality of your excellency, that in the name of
the high powers of our Mexican Republic, you be pleased to make us
a grant of the said tract, for the same is of very convenient size,
and has ample water to be cultivated, and to afford sufficient
support for the petitioners and their families, and would not
injure any third party with respect to property or pasturage or in
any other way, but would rather result in the great welfare and
increase of population and of agriculture, and, besides relieving
the necessity of the petitioners, it will also strengthen that
locality or frontier which guards the said population of the Rio
Colorado, from which the said tract is distant but about one
league, and from the settlement of San Cristoval somewhat
more."
"Therefore I earnestly pray that your excellency be pleased to
accede to this our petition. I declare and protest, etc."
"City of Santa Fe, December 31, 1845. At the disposition of your
excellency."
"Carlos Santistevan"
"Santa Fe,
December 31, 1845"
"To the prefect of the district, that he ascertain whether the
land applied for has an owner, and cause the corresponding justice
to deliver the land referred to by the petitioner."
"Armijo"
"Juan Bautista Vigil y Alarid,
Secretary"
"Rio Arriba,
January 3, 1846"
"The justice of the peace to whom it corresponds to do so will
investigate whether the tract the petitioners apply for is vacant,
and whether any injury to a third party would result from the
granting thereof, and, none resulting, he will proceed to grant
them of the land an abundance of what each can cultivate, under the
condition that they enclose the same with a regular fence, in order
to prevent damages, and that they do not obstruct the roads,
pastures, and watering places, and with notice that they shall keep
arms sufficient for their defense."
"D. Lucero"
"In this, the third precinct, Dolores, of the District of Taos,
on the twentieth day of the month of March, one thousand eight
hundred and forty-six, I, Juan Lorenzo Martines, justice of the
peace, by authority of law, for the said precinct, in pursuance of
a decree of January 3, eighteen hundred and forty-six, by his honor
Diego Lucero, prefect of the second district of the north, issued
to me as the proper justice, that I investigate whether the land
applied for by the five petitioners is vacant, and I, meeting no
impediment, proceeded to the tract and, finding the same
uncultivated and unoccupied, took the petitioners by the hand, and
leading them very slowly and in full legal form, in virtue of
holding competent authority, I placed them in possession of the
land they pray for for cultivation, they being without land in fee,
doing so in the name of God and of the high authority of our wise
Mexican laws, which are sufficient to grant the public domain, to
the end that idleness be banished and agriculture be encouraged.
Wherefore they at the instant they received their liberal donation
and were favored in this manner, shouted with joy, saying huzza for
the renowned sovereignty of the Mexican nation. And in this joy
they plucked up grass and cast stones, as being lawful proprietors
of the land which they wished to irrigate with the water of the
valley of the Lama, as relying upon that small water source they
had applied for the donation, and I therefore designate to them for
limits: on the north, the boundaries of the Rio Colorado grant; on
the south, to where the dividing line of San Cristoval is reached;
on the east, the mountain, and on the west, the edge of the bluff
of the Rio del Norte, leaving the pastures, roads, and watering
places free, eastwardly, from where they cannot irrigate; they not
to prevent pasturing in virtue of being the possessors, and they
are also obligated to enclose with a regular fence, so that they
may not have to claim damages, and shall keep arms sufficient for
their protection."
"And to the end that this grant may in all time subsist, I
authenticate the same under the authority conferred upon me, with
my attending witnesses, for the lack of a notary public, there
being none in this department, and it is done on this common paper,
there being none of the proper stamp, the new settlers binding
themselves to supply the same of the proper stamp whenever they can
opportunely procure it, to all of which I certify."
"J. Lorenzo Martines"
"Attending: Juan Jose Cordova."
"Attending: Jose Concepcion Medina."
"NOTE. -- The persons placed in possession, with their full
names, are those following in this list of names, made that they,
for the sake of peace and good neighborhood, may in proportion to
the tract divide among themselves the land I delivered them without
measuring, owing to the very inclement day and the much thicket
which impeded the cord, and they are in this list: Juan Carlos
Santistevan, Jose Manuel Garcia, Julian Santistevan, Carlos
Ortivis, Tomas Ortivis."
"Valid [RUBRIC]"
"Attending: Juan Jose Cordova."
"Attending: Jose Concepcion Medina."
"Tomas Ortivis being of those placed in possession in this grant
at the foot of which this note is appended, he transfers to his
brother Carlos Ortivis all his rights in this grant, and he signed
this before me, Lorenzo Martin, alcalde, and the said Tomas signed
this with me this 7th April, 1850."
"Lor'o Martin,
Alcalde"
"Attending: Rafael Sisneros Tomas Ortivis X"
"Attending: Mateo Romero. X"
"Carlos Ortivis being of those placed in possession under this
grant at the foot of which this note is appended, he transfers to
the citizen Jose Gonzales his rights in the grant, and he signed
this before two witnesses present, and he transferred his rights
for the price of two dry cows, one cow with a calf, and one yoke of
oxen, which he signed with the witnesses this 29th of September,
1850."
"Carlos Ortivis X"
"Witness: Jose Miguel Pacheco"
"Witness: Jose Bitor Valdes X"
[
Footnote 2]
Excerpts from the Regulations of November 21, 1828 (Reynolds'
Span. & Mex.Land Laws pp. 141
et seq.):
"1. The political chiefs of the territories are authorized,
under the law of the General Congress of the 18th of August, 1824,
and under the conditions that will hereafter be stated, to grant
the public lands of their respective territories to the
contractors, families, or private persons, Mexicans or foreigners,
who may apply for them for the purpose of cultivating them or
living upon them."
"2. Every applicant for land, whether contractor, head of
family, or private person, shall apply to the political chief of
the respective territory with an application in which is given his
name, country, profession, the number, nature, religion, and other
circumstances of the families or persons whom he desires to
colonize, and shall also mark as distinctly as possible and
describe on a map the land he applies for."
"3. The political chief shall proceed immediately to obtain the
necessary information as to whether or not the conditions required
by said law of the 18th of August are found in the application,
both as regards the land and the applicant, either that this latter
be attended to simply or that he be preferred, and shall at the
same time hear the respective municipal authority as to whether any
objection or not is found to the grant."
"4. In view of all of which the political chief shall grant or
not said application in strict conformity with the law applicable
to the matter, especially with that of the 18th of August, 1824,
already cited."
"5. The grants made to private persons or families shall not be
held to be definitely valid without the previous consent of the
territorial deputation, for which purpose the respective
proceedings shall be forwarded to it."
"
* * * *"
"8. The grant asked for being definitely made, a document signed
by the political chief shall be issued to serve as a title to the
party in interest, it being stated therein that the grant is made
in entire conformity with the provisions of the laws, in virtue of
which the possession shall be given."
"9. The corresponding entries of all the applications presented
and grants made shall be made in a book intended for the purpose,
with the maps of the lands that shall be granted, and a detailed
report shall be forwarded to the supreme government every
quarter."
"10. No stipulation shall be admitted for a new settlement
unless the contractor obligates himself to furnish at least twelve
families as settlers."
"11. The political chief shall set a reasonable time for the
settler, within which he must necessarily cultivate or occupy the
land in the terms and with the number of families which he has
stipulated, in the intelligence that, if he does not do so, the
grant of the land should be void, but the political chief may
nevertheless revalidate it in proportion to the part in which the
party in interest had complied."
"12. Every new settler, after he has cultivated or occupied the
land under his stipulation, shall be careful to so show to the
municipal authority, in order to consolidate and secure his right
to the property to enable him to freely dispose thereof, after the
proper record has been made."