The facts in these two cases are so nearly alike that the Court
thinks it sufficient to consider only the first. The land there in
question is within
the limits of the territory ceded to the United States by the
Guadalupe Hidalgo. The plaintiffs claim title by virtue of a
sued in confirmation of two grants made by the Mexican
government. The defendants, without claiming the fee, claim a right
occupancy as Mission Indians who had been in occupation of the
premises long before the Mexican grants. Held:
(1) That the United States were bound to respect the rights of
private property in the ceded territory, but that it had the right
to require reasonable means for determining the validity of all
titles within the ceded territory, to require all persons having
claims to lands to present them for recognition, and to decree that
all claims which are not thus presented, shall be considered
(2) That, so far as the Indians are concerned, the land was
rightfully to be regarded as part of the public domain, and subject
to sale and disposition by the government.
(3) That if the Indians had any claims founded on the action of
the Mexican government, they abandoned them by not presenting them
to the commission for consideration.
(4) That lands which were burdened with a right of permanent
occupancy were not a part of the public domain, subject to the full
disposal by the United States.
Some discussion appears in the briefs as to the meaning of the
(translated, "usages"). The Court
declines to define its meaning when standing by itself, but holds
that, in these grants, it does not mean that the general occupation
and control of the property was limited by them, but only that such
full control should not be taken as allowing any interference with
established roads or crossroads, or other things of like
These cases were brought by defendants in error in the Superior
Court of the County of San Diego, California, to quiet their title
to certain premises in that county. Decrees rendered in their favor
were carried to the supreme court of the
Page 181 U. S. 482
state, and by that court affirmed. 126 Cal. 262. To such
affirmance these writs of error have been sued out.
The facts in the cases are so nearly alike that it is sufficient
to consider only the first. The land in question is within the
limits of the territory ceded to the United States by the Treaty of
Guadalupe Hidalgo, February 2, 1848. 9 Stat. 922. Generally
speaking, the plaintiffs claim title by virtue of a patent issued
to John J. Warner on January 16, 1880, in confirmation of two
grants made by the Mexican government. On the other hand, the
defendants do not claim a fee in the premises, but only a right of
permanent occupancy by virtue of the alleged fact that they are
mission Indians, so called, and had been in occupation of the
premises long before the Mexican grants, and, of course, before any
dominion acquired by this government over the territory, insisting
further that the government of Mexico had always recognized the
lawfulness and permanence of their occupancy, and that such right
of occupancy was protected by the terms of the treaty and the rules
of international law.
The Treaty of Guadalupe Hidalgo provided in article 8 as
"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 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."
"Those who shall prefer to remain in the said territories may
either retain the title and rights of Mexican citizens or acquire
those of citizens of the United States. But they shall be under the
obligation to make their election within one year from the date of
the exchange of ratifications of this treaty, and those who shall
remain in the said territories after the expiration of that year
without having declared their intention to retain the
Page 181 U. S. 483
character of Mexicans shall be considered to have elected to
become citizens of the United States."
"In the said territories, the 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."
Article 10, as originally prepared, was stricken out by the
Senate, but in the protocol signed by the representatives of the
two nations at the time of the ratification on May 26, 1848, it was
"2d. The American government, by suppressing the tenth article
of the treaty of Guadalupe, did not in any way intend to annul the
grants of lands made by Mexico in the ceded territories. These
grants, notwithstanding the suppression of the article of the
treaty, preserve the legal value which they may possess, and the
grantees may cause their legitimate [titles] to be acknowledged
before the American tribunals."
"Conformably to the law of the United States, legitimate titles
to every description of property, personal and real, existing in
the ceded territory are those which were legitimate titles under
the Mexican law in California and New Mexico up to the 13th of May,
1846, and in Texas up to the 2d March, 1836."
Ex.Doc. No. 50 H.R. 30th Cong.2d Sess. p. 77.
After the acquisition of this territory, Congress, on March 3,
1851, 9 Stat. 631, c. 41, passed an act entitled "An Act to
Ascertain and Settle the Private Land Claims in the California,"
which created a commission to receive and act upon all petitions
for confirmation of such claims. Its decision was subject to appeal
to the district court of the United States and thence to this
Court. As originally organized, the commission was to continue for
three years, but that time was extended by subsequent legislation.
Sections 8, 13, 15, and 16 are as follows:
"SEC. 8. That each and every person claiming lands in California
by virtue of any right or title derived from the Spanish or Mexican
government shall present the same to the said commissioners when
sitting as a board, together with such documentary
Page 181 U. S. 484
evidence and testimony of witnesses as the said claimant relies
upon in support of such claims, and it shall be the duty of the
commissioners, when the case is ready for hearing, to proceed
promptly to examine the same upon such evidence, and upon the
evidence produced in behalf of the United States, and to decide
upon the validity of the said claim and, within thirty days after
such decision is rendered, to certify the same, with the reasons on
which it is founded, to the district attorney of the United States
in and for the district in which such decision shall be
"SEC. 13. That all lands the claims to which have been finally
rejected by the commissioners in the manner herein provided, or
which shall be finally decided to be invalid by the district or
supreme court, and all lands the claims to which shall not have
been presented to the said commissioners within two years after the
date of this act, shall be deemed, held and considered as part of
the public domain of the United States, and for all claims finally
confirmed by the said commissioners, or by the said district or
supreme court, a patent shall issue to the claimant upon his
presenting to the General Land Office an authentic certificate of
such confirmation and a plat or survey of the said land, duly
certified and approved by the surveyor general of California, whose
duty it shall be to cause all private claims which shall be finally
confirmed to be accurately surveyed and to furnish plats of the
same, and in the location of the said claims the said surveyor
general shall have the same power and authority as are conferred on
the registrar of the land office and receiver of the public moneys
of Louisiana, by the sixth section of the act 'to create the office
of surveyor of the public lands for the State of Louisiana,'
approved third March, one thousand eight hundred and thirty-one:
Provided always, That if the title of the claimant to such lands
shall be contested by any other person, it shall and may be lawful
for such person to present a petition to the district judge of the
United States for the district in which the lands are situated,
plainly and distinctly setting forth his title thereto and praying
the said judge to hear and determine the same, a copy of which
petition shall be served upon the adverse party thirty days before
the time appointed
Page 181 U. S. 485
for hearing the same: And provided, further, That it shall and
may be lawful for the district judge of the United States, upon the
hearing of such petition, to grant an injunction to restrain the
party at whose instance the claim to the said lands has been
confirmed from suing out a patent for the same, until the title
thereto shall have been finally decided, a copy of which order
shall be transmitted to the Commissioner of the General Land
Office, and thereupon no patent shall issue until such decision
shall be made, or until sufficient time shall, in the opinion of
the said judge, have been allowed for obtaining the same, and
thereafter the said injunction shall be dissolved."
"SEC. 15. That the final decrees rendered by the said
commissioners, or by the district or Supreme Court of the United
States, or any patent to be issued under this act, shall be
conclusive between the United States and the said claimants only,
and shall not affect the interests of third persons."
"SEC. 16. That it shall be the duty of the commissioners herein
provided for to ascertain and report to the Secretary of the
Interior the tenure by which the mission lands are held, and those
held by civilized Indians, and those who are engaged in agriculture
or labor of any kind, and also those which are occupied and
cultivated by Pueblos or Rancheros Indians."
On the trial before the court, without a jury, the findings of
fact were in substance that the plaintiffs had the ownership in fee
simple of the premises described; that the defendants had no rights
or interest therein, and the decree was in accordance therewith.
The statement on appeal prepared by the trial court disclosed that
the plaintiffs introduced in evidence the patent to John J. Warner,
which patent recited the filing of a petition by Warner with the
land commission praying for confirmation of his title, a title
based on two Mexican grants -- one June 8, 1840, to Jose Antonio
Pico by Juan B. Alvarado, then constitutional governor of the
Californias, and the second, November 28, 1844, to petitioner by
Manuel Micheltorena, governor general commandant and inspector
general of the Californias; recited also a decree of confirmation
of such title, an appeal to the district court of the United
States, and an affirmance of the decision of
Page 181 U. S. 486
the commission, the return of the surveyor general of the state
showing a survey, and conveyed the premises to Warner,
"but with the stipulation that in virtue of the fifteenth
section of the said act neither the conformation of this claim nor
this patent shall affect the interests of third persons."
It was admitted that Warner's title had passed to plaintiffs and
that the taxes had all been paid by them. On the other hand, the
appeal statement showed that the defendants offered copies of the
of both of the grants referred to in the
patent, and also oral testimony of occupation by the defendants and
their ancestors. Some witnesses were introduced by the plaintiffs
to contradict this matter of occupancy, but, on final
consideration, the court struck out all the testimony in reference
to occupancy and of the Mexican grants upon which the patent was
issued. Upon the evidence, therefore, that was received by the
trial court, there could be no doubt of the rightfulness of the
decree, and the question presented by the record to the supreme
court of the state was whether there was error in striking out the
testimony offered on behalf of the defense.
MR. JUSTICE BREWER delivered the opinion of the Court.
Undoubtedly by the rules of international law, and in accordance
with the provisions of the treaty between the Mexican government
and this country, the United States were bound to respect the
rights of private property in the ceded territory. But such
obligation is entirely consistent with the right of this government
to provide reasonable means for determining the validity of all
titles within the ceded territory, to require all persons having
claims to lands to present them for recognition,
Page 181 U. S. 487
and to decree that all claims which are not thus presented shall
be considered abandoned.
"Undoubtedly private rights of property within the ceded
territory were not affected by the change of sovereignty and
jurisdiction, and were entitled to protection whether the party had
the full and absolute ownership of the land or merely an equitable
interest therein which required some further act of the government
to vest in him a perfect title. But the duty of providing the mode
of securing these rights, and of fulfilling the obligations imposed
upon the United States by the treaties, belonged to the political
department of the government, and Congress might either itself
discharge that duty or delegate it to the judicial department.
Croix v. Chamberlain,
12 Wheat. 599, 25 U. S.
-602; Chouteau v. Eckhart,
344, 43 U. S. 374
; Tameling v.
United States Freehold & Emigration Co., 93 U. S.
, 93 U. S. 661
; Botiller v.
Dominguez, 130 U. S. 238
Astiazaran v. Santa Rita Land & Mining Co.,
148 U. S. 80
148 U. S.
Botiller v. Dominguez, 130 U.
, the last case cited in the foregoing quotation,
deserves special notice. The Supreme Court of California had held
in several cases that a perfect title need not be presented to the
land commission; that it was recognized by the treaty of cession,
and required no further confirmation; that the act to ascertain and
settle private land claims applied only to those titles which were
imperfect and needed the action of some tribunal to ascertain and
establish their validity. But, in this case, which came from the
Supreme Court of California, we held the contrary. We quote at some
length from the opinion. Thus, on page 130 U. S. 246
it was said:
"Two propositions under this statute are presented by counsel in
support of the decision of the Supreme Court of California. The
first of these is that the statute itself is invalid as being in
conflict with the provisions of the treaty with Mexico and
violating the protection which was guaranteed by it to the property
of Mexican citizens owned by them at the date of the treaty, and
also in conflict with the rights of property under the Constitution
and laws of the United States so far as it may affect titles
perfected under Mexico. The second proposition is that the statute
was not intended to apply to claims which were supported by a
complete and perfect title from the Mexican
Page 181 U. S. 488
government, but, on the contrary, only to such as were
imperfect, inchoate, and equitable in their character, without
being a strict legal title."
"With regard to the first of these propositions, it may be said
that, so far as the act of Congress is in conflict with the treaty
with Mexico, that is a matter in which the Court is bound to follow
the statutory enactments of its own government. If the treaty was
violated by this general statute enacted for the purpose of
ascertaining the validity of claims derived from the Mexican
government, it was a matter of international concern which the two
states must determine by treaty or by such other means as enables
one state to enforce upon another the obligations of a treaty. This
Court, in a class of cases like the present, has no power to set
itself up as the instrumentality for enforcing the provisions of a
treaty with a foreign nation which the government of the United
States, as a sovereign power, chooses to disregard.
11 Wall. 616; Taylor v.
2 Curtis 454; Head Money Cases, 112 U. S.
, 112 U. S. 598
v. Robertson, 124 U. S. 190
, 124 U. S.
In reference to the second proposition, after noticing several
provisions of the statute, it was declared (p. 130 U. S.
"It is not possible, therefore, from the language of this
statute to infer that there was in the minds of its framers any
distinction as to the jurisdiction they were conferring upon this
board between claims derived from the Spanish or Mexican
government, which were perfect under the laws of those governments,
and those which were incipient, imperfect, or inchoate. . . . It
was equally important to the object which the United States had in
the passage of it that claims under perfect grants from the Mexican
government should be established as that imperfect claims should be
established or rejected."
"The superior force which is attached, in the argument of
counsel, to a perfect grant from the Mexican government had its
just influence in the board of commissioners or in the courts to
which their decisions could be carried by appeal. If the title was
perfect, it would there be decided by a court of competent
jurisdiction, holding that the claim thus presented was valid; if
it was not, then it was the right and the duty of that court
Page 181 U. S. 489
to determine whether it was such a claim as the United States
was bound to respect, even though it was not perfect as to all the
forms and proceedings under which it was derived. So that the
superior value of a perfected Mexican claim had the same influence
in a court of justice which is now set up for it in an action where
the title is contested."
"Nor can it be said that there is anything unjust or oppressive
in requiring the owner of a valid claim, in that vast wilderness of
lands unclaimed, and unjustly claimed, to present his demand to a
tribunal possessing all the elements of judicial functions with a
guaranty of judicial proceedings so that his title could be
established if it was found to be valid or rejected if it was
"We are unable to see any injustice, any want of constitutional
power, or any violation of the treaty in the means by which the
United States undertook to separate the lands in which it held the
proprietary interest from those which belonged, either equitably or
by a strict legal title, to private persons. Every person owning
land or other property is at all times liable to be called into a
court of justice to contest his title to it. This may be done by
another individual or by the government under which he lives. It is
a necessary part of a free government, in which all are equally
subject to the laws, that whoever asserts rights or exercises
powers over property may be called before the proper tribunals to
The views thus expressed have been several times reaffirmed by
this Court, the latest case being Mitchell v. Furman,
180 U. S. 402
which, after quoting the passage last above quoted, we said in
reference to statutes of the United States respecting claims in
Florida (p. 180 U. S.
"We are of opinion that these acts applied and were intended to
apply to all claims, whether perfect or imperfect, in that
particular resembling the California act; that the courts were
bound to accept their provisions, and that there was no want of
constitutional power in prescribing reasonable limitations
operating to bar claims if the course pointed out were not
See also Thompson v. Los Angeles Farming &c. Co.,
180 U. S. 72
180 U. S. 77
which it was said in reference to the statute before us:
Page 181 U. S. 490
"Every question which could arise on the title claimed could
come to and receive judgment from this Court. The scheme of
adjudication was made complete and all the purposes of an act to
give repose to titles were accomplished. And it was certainly the
purpose of the act of 1851 to give repose to titles. It was enacted
not only to fulfill our treaty obligations to individuals, but to
settle and define what portion of the acquired territory was public
domain. It not only permitted but required all claims to be
presented to the board, and barred all from future assertion which
were not presented within two years after the date of the act. Sec.
13. The jurisdiction of the board was necessarily commensurate with
the purposes of its creation, and it was a jurisdiction to decide
rightly or wrongly. If wrongly, a corrective was afforded, as we
have said, by an appeal by the claimant or by the United States to
the district court."
These rulings go far toward sustaining the decision of the
Supreme Court of California in the present cases. As between the
United States and Warner, the patent is as conclusive of the title
of the latter as any other patent from the United States is of the
title of the grantee named therein. As between the United States
and the Indians, their failure to present their claims to the land
commission within the time named made the land, within the language
of the statute, "part of the public domain of the United States."
"Public domain" is equivalent to "public lands," and these words
have acquired a settled meaning in the legislation of this country.
"The words public lands' are habitually used in our legislation
to describe such as are subject to sale or other disposal under
general laws." Newhall v. Sanger, 92 U. S.
761, 92 U. S.
"The grant is of alternate sections of public land, and by
public land, as it has been long settled, is meant such land as is
open to sale or other disposition under general laws."
Bardon v. Northern Pacific Railroad Co., 145 U.
, 145 U. S. 538
See also Mann v. Tacoma Land Co., 153 U.
, 153 U. S. 284
So far, therefore, as these Indians are concerned, the land is
rightfully to be regarded as part of the public domain, and subject
to sale and disposal by the government, and the government has
conveyed to Warner. It is true that the patent,
Page 181 U. S. 491
following the fifteenth section of the act, in terms provides
that the patent shall not "affect the interests of third persons,"
but who may take advantage of this stipulation? This question was
presented and determined in Beard v.
3 Wall. 478, and the Court, referring to
the effect of a patent, said (pp. 70 U. S.
"When informed by the action of its tribunals and officers that
a claim asserted is valid and entitled to recognition, the
government acts, and issues its patent to the claimant. This
instrument is therefore record evidence of the action of the
government upon the title of the claimant. By it, the government
declares that the claim asserted was valid under the laws of
Mexico, that it was entitled to recognition and protection by the
stipulations of the treaty, and might have been located under the
former government, and is correctly located now, so as to embrace
the premises as they are surveyed and described. As against the
government, this record, so long as it remains unvacated, is
conclusive. . . . The term 'third persons,' as there used, does not
embrace all persons other than the United States and the claimants,
but only those who hold superior titles such as will enable them to
resist successfully any action of the government in disposing of
If these Indians had any claims founded on the action of the
Mexican government, they abandoned them by not presenting them to
the commission for consideration, and they could not therefore, in
the language just quoted, "resist successfully any action of the
government in disposing of the property." If it be said that the
Indians do not claim the fee, but only the right of occupation, and
therefore they do not come within the provision of section 8 as
persons "claiming lands in California by virtue of any right or
title derived from the Spanish or Mexican government," it may be
replied that a claim of a right to permanent occupancy of land is
one of far-reaching effect, and it could not well be said that
lands which were burdened with a right of permanent occupancy were
a part of the public domain, and subject to the full disposal of
the United States. There is an essential difference between the
power of the United States over lands to which it has had full
title, and of which it has
Page 181 U. S. 492
given to an Indian tribe a temporary occupancy, and that over
lands which were subjected by the action of some prior government
to a right of permanent occupancy, for, in the latter case, the
right, which is one of private property, antecedes and is superior
to the title of this government and limits necessarily its power of
disposal. Surely a claimant would have little reason for presenting
to the land commission his claim to land and securing a
confirmation of that claim if the only result was to transfer the
naked fee to him, burdened by an Indian right of permanent
Again, it is said that the Indians were, prior to the cession,
the wards of the Mexican government, and by the cession became the
wards of this government, that therefore the United States are
bound to protect their interests, and that all administration, if
not all legislation, must be held to be interpreted by, if not
subordinate to, this duty of protecting the interests of the wards.
It is undoubtedly true that this government has always recognized
the fact that the Indians were its wards, and entitled to be
protected as such, and this Court has uniformly construed all
legislation in the light of this recognized obligation. But the
obligation is one which rests upon the political department of the
government, and this Court has never assumed, in the absence of
congressional action, to determine what would have been appropriate
legislation or to decide the claims of the Indians as though such
legislation had been had. Our attention has been called to no
legislation by Congress having special reference to these
particular Indians. By the act creating the land commission the
commissioners were required (sec. 16)
"to ascertain and report to the Secretary of the Interior the
tenure by which the mission lands are held, and those held by
civilized Indians, and those who are engaged in agriculture or
labor of any kind, and also those which are occupied and cultivated
by Pueblos or Rancheros Indians."
It is to be assumed that the commissioners performed that duty,
and that Congress, in the discharge of its obligation to the
Indians, did all that it deemed necessary, and as no action has
been shown in reference to these particular Indians or their claims
to these lands, it is fairly to be deduced that Congress
Page 181 U. S. 493
considered that they had no claims which called for special
But we are not compelled to rest upon any presumptions from the
inaction of Congress. Turning to the testimony offered in respect
to the matter of occupation, it may be stated that there was
sufficient to call for a finding thereon if the fact of occupation
was controlling. But, in the Mexican grants upon which Warner based
his application to the commission for a confirmation of his title,
we notice these things: the first grant was in 1840, to Jose
Antonio Pico. The application was for
"the place 'Agua Caliente,' belonging to the mission of San Luis
Rey, since it is not needed by the said mission, having a house on
it, and an orchard of little utility."
The report of the justice of the peace was
"that the land 'Agua Caliente' is the property of the San Luis
Rey mission, which has improvements, buildings, and an orchard,
from which derive their subsistence the Indians who live thereon,
which is bounded by the property of Joaquin Ortega, and I believe
it can be awarded to the interested party for being worthy, but
without prejudice to the Indians, who from it derive their
The last paper in the expediente
was the following:
"Juan B. Alvarado, Constitutional Governor of the Department
of both Californias:
"Whereas Jose Antonio Pico has petitioned for his own personal
benefit and that of his family the land known by the name of 'Agua
Caliente,' bounded by the ranch of 'San Jose Valley,' with the
boundary of the canyon of 'Buena Vista,' and by the mountains of
'Palomar,' having previously complied with the writs and
investigations corresponding, as required by the laws and
regulations, exercising the powers which are conferred on me in the
name of the Mexican nation, I have resolved to grant to him the
said place, subjecting himself to pay for the place of worship and
other improvements that be there, belonging to the San Luis Rey
mission, and not molest (prejudicar
) the Indians that
thereon may be established, and to the approbation of the most
excellent assembly of the department, and to the conditions
following, to-wit: "
Page 181 U. S. 494
"First. He is allowed to fence it in, without interfering with
the roads, crossroads, and other usages (servidumbres
will possess it fully and exclusively, turning it to agricultural
or any other use he may see fit, but within a year he shall
construct a house thereon and live in it."
"Second. When the property shall have been confirmed to him, he
shall petition the respective judge to give him possession thereof,
by virtue of this order, and shall mark out the boundaries on whose
limits he shall fix the landmarks, some fruit and wild trees that
may be of some utility."
"Third. The land of which donation is hereby made is of the
extent mentioned in the plan, which goes with the
' The judge who should give possession thereof
shall have it surveyed according to law, leaving the residue that
may result to the nation for other purposes."
"Fourth. If he should fail to comply with these conditions, he
shall forfeit his title to the land, and it will be denounceable by
"Therefore I command that this present order be to him the
title, and holding it for good and valid, a copy thereof be entered
into the proper book, and given to the party interested for his
protection and other purposes."
No approval of this grant by the departmental assembly appears
of record, but the finding of the commission was that whatever of
right passed to Pico was transferred by conveyances to Warner. The
second grant, that in 1845, was made directly to Warner upon his
personal application, which application was thus indorsed:
"Office of the First Justice of the Peace"
"In view of the petition which the party interested remits to
this office, I beg to state that the said 'Valle San Jose' is, and
has for the past two years been vacant and abandoned, without any
goods nor cultivation on the part of San Diego, but said place
belongs at the present time to the said mission, and at
petitioner's request I sign this in San Diego."
"August 6, 1844 Juan MaMarron"
Page 181 U. S. 495
"To the Most R. P. Vincent Olivas:
"With the object of soliciting in property the place known by
the name 'Valle de San Jose,' formerly occupied by the mission
under your charge, I beg of you to be so kind as to inform me if at
the present day the mission of San Diego does occupy the said land,
and if not, how long since it has been abandoned."
"San Diego, August 5, 1844 Juan J. Warner"
"The 'Valley of San Jose' can be granted to the party who
petitions for it, inasmuch as the mission of San Diego, to whom it
belonged, has no means sufficient to cultivate and occupy it, and
it is not so necessary for the mission."
"Fr. Vincent P. Olivas"
"Mission of San Diego, August 5, 1844"
The grant was in these words:
"The citizen, Manuel Micheltorena, general of brigade of the
Mexican army, adjutant general of the same, governor general,
commander, and inspector of both Californias:"
"Whereas Juan Jose Warner, Mexican by naturalization, has
petitioned for his own personal benefit, and that of his family,
the land known by the name 'Valle de San Jose,' bounded on the east
by the entrance into San Felipe and the mountain, on the west by
the mountain and canyon of Aguanga, and on the north bounded by the
mountain, and the boundaries on the south being the 'Carrizo' and
the mountain, having previously complied with the notices and
investigations on such matters as prescribed by the laws and
regulations, exercising the powers conferred on me in the name of
the Mexican nation, I have resolved to grant him the said land,
declaring it by these presents his property, subject to the
approbation of the most excellent assembly of the department and to
the conditions following, to-wit:"
"First. He will not be allowed to sell it, to alienate it, nor
to mortgage it, to place it under bond, or to place it under any
obligation, nor give it away."
"Second. He will be allowed to fence it in, without interference
with the roads, and other usages (servidumbres
). He will
hold it freely and exclusively, turning it to agriculture or
Page 181 U. S. 496
other use he may please, and he shall build a house on it within
one year and live in it."
"Third. He shall apply to the respective judge to give him
judicial possession thereof, by virtue of this order, by which he
shall mark out the boundaries whereon he shall place the stakes,
some fruit and wild trees of some use or other."
"Fourth. The land which is being granted consists of six
leagues, more or less (seis sitios de ganado mayor
according to the respective map or plan. The judge who may give
possession thereof shall have it surveyed according to law, leaving
the residue (sobrante
) to the nation for its use."
"Fifth. Should he fail to comply with these conditions, he shall
forfeit his right to the land, and it will be denounceable by
another. Therefore I order that this present decree be to him his
title, and holding it for good and valid notice thereof be entered
into the respective books and be given to the interested party for
his protection and other purposes."
The grant was subsequently approved by the departmental assembly
on May 21, 1845. On the application to the private land commission,
the matter was investigated, and a report made by Commissioner
Felch in these words:
"J. J. Warner v. The United States,
for the place
called Agua Caliente y Valle de San Jose, in San Diego County,
containing six square leagues of land."
"Two grants are presented and proved in this case, the first
made by Governor Juan B. Alvarado to Jose Antonio Pico on the 8th
day of June, 1840, the other by Governor Manuel Micheltorena on the
28th day of November, 1844, to the present claimant. The land
embraced in the grant to Pico is designated by the name of Agua
Caliente, and that described in the grant to Warner is called the
Valle de San Jose. On comparing the descriptions of the two parcels
of lands and maps which constitute portions of the two
it is manifest that the grant to Warner
embraces the premises described in the previous grant to Pico. The
place known by the name of Agua Caliente constitutes the northern
portion of the valley known by the name of San Jose, while the
grant to Warner describes the entire valley, and the witnesses
testify that the rancho claimed
Page 181 U. S. 497
by Warner is known by these names, but more frequently it has
recently been called Warner's rancho. The testimony shows that Pico
had set out some vines on the place before the grant was made to
him, and that he built a house on the place after the grant, but in
1842, he left the place, probably on account of the danger from the
Indians, and does not appear to have done anything more in
connection with it."
"The proof is scarcely sufficient to establish the performance
of the conditions of the grant by him, while his absence from the
place and the want of any evidence of an attempt to return to it
after 1842 indicate an abandonment of it. It was so treated by
Warner in petitioning for a grant of the same in 1844, and by the
governor in making the concession to him. If, however, there was
any remaining interest in said Pico by virtue of the grant to him,
the present claimant has succeeded to that interest by virtue of a
conveyance made to him by said Pico on the 13th day of January,
1852. This conveyance is given in evidence."
"I think, however, that the right of the present claimant must
be determined entirely by the merits of the case based on
Micheltorena's grant to him."
"This grant was approved by the departmental assembly May 21,
"The testimony of Andres Pico shows that Warner was living with
his family on the place in the fall of 1844, and cultivating
portions of the land."
"His residence on the place appears to have been continued until
1851, when the Indians burnt his buildings and destroyed his stock.
Since that time, his occupation has been continued by his
"In the grant, the description of the land petitioned for is
such as to embrace the entire valley called San Jose, as laid down
on the map constituting a part of the expediente,
well defined landmarks and boundaries, which the witnesses testify
are well known objects."
"The valley is very irregular in shape, and is surrounded by
"Juridical measurement was required and the quantity of six
Page 181 U. S. 498
square leagues was granted, but as the measurement was never
obtained, it is important to determine whether the grantee is
entitled to hold the entire premises described in the grant; using
the scale given on the desino
referred to in the grant,
the quantity included in the premises cannot exceed six square
leagues of land."
"The testimony of the witnesses who were interrogated on the
subject estimate it variously -- some more and some less than the
quantity conceded. On an examination of the whole case, however, we
are inclined to the opinion that the petitioner should have a
confirmation of the premises according to the description contained
in the grant to him, and a decree will be entered accordingly."
Upon that report, the title was confirmed, which, as heretofore
stated, was approved by the district court, and thereupon a patent
From these papers, the following appears: the grant to Pico was
made subject to the condition that he should "not molest the
Indians that thereon may be established." No such condition was
attached to the subsequent grant to Warner. On the contrary, the
report of the justice of the peace was that the land had been for
two years vacant and abandoned; that there were some property
rights vested -- not in the Indians, but in the mission of San
Diego -- and the official of that mission consented to the grant,
inasmuch as the mission had no means to cultivate and occupy the
land, and it was no longer necessary for its purposes.
Some discussion appears in the briefs as to the meaning of the
word translated "usages" (servidumbres
) which appears in
both grants, and it is contended by the plaintiffs in error that it
is equivalent to the English word "servitudes," and is broad enough
to include every right which anyone may have in respect to the
premises subordinate to the fee. We shall not attempt to define the
meaning of the word standing by itself. It may be conceded that it
was sometimes used to express all kinds of servitudes, including
therein a paramount right of occupation, but the context seems to
place a narrower meaning upon its use here. Thus, in the first
grant, not only is there
Page 181 U. S. 499
the distinct provision that the Indians established on the land
shall not be molested, but the grantee "is allowed to fence it in
without interfering with the roads, cross roads, and other usages"
). In the second, the grantee is "allowed to
fence it in without interference with the roads and other usages"
). Obviously it is in these two clauses
contemplated that the fencing is to be without interference with
roads and other usages or burdens. It does not mean that the
general occupation and control of the property is limited by any
but only that such full control
shall not be taken as allowing any interference with established
roads or crossroads, or other things of like nature.
It thus appears that, prior to the cession, the Mexican
authorities, upon examination, found that the Indians had abandoned
the land; that the only adverse claim was vested in the mission of
San Diego and made an absolute grant, subject only to the condition
of satisfying whatever claims the mission might have. How can it be
said, therefore, that, when the cession was made by Mexico to the
United States, there was a present recognition by the Mexican
government of the occupancy of these Indians? On the contrary, so
far as any official action is disclosed, it was distinctly to the
contrary, and carried with it an affirmation that they had
abandoned their occupancy and that whatever of title there was
outside of the Mexican nation was in the mission, and an absolute
grant was made subject only to the rights of such mission.
For these reasons, we are of opinion that there was no error in
the rulings of the Supreme Court of California, and its judgments
in the two cases are
MR. JUSTICE WHITE did not hear the argument of these cases or
take part in their decision.