Fremont v. United States,
58 U.S. 542 (1854)

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U.S. Supreme Court

Fremont v. United States, 58 U.S. 17 How. 542 542 (1854)

Fremont v. United States

58 U.S. (17 How.) 542


By the Act of Congress passed on the 3d March, 1851, 9 Stat. 631, to ascertain and settle the private land claims in the State of California, it is made the duty of every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, to present the same to the commissioners to be appointed under that act who were to examine and decide upon the validity of the claim.

The commissioners, the district, and the Supreme Court, in deciding on any claim brought before them, were directed to be governed by the Treaty of Guadaloupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, as far as they are applicable.

Under this act, not only inchoate or equitable titles, but legal titles also were required to be passed upon the court. This was an essential difference from the act of 1824, under which claims to land in Louisiana and Florida were decided, and which related to inchoate equitable titles.

Grants of land in Louisiana and Florida were usually preceded by a concession and survey, and until a survey took place, no title accrued to the grantee. Hence this Court has always decided that where the grantee took no further steps in the matter, he had acquired no right, legal or equitable, to the lands under the Spanish government.

The laws of these territories, under which titles were claimed, were never treated by this Court as foreign laws, to be decided as a question of fact, but the Court held itself bound to notice them judicially, as much so as the laws of a state of the Union.

On the 29th of February, 1844, Micheltorrena, the Governor of California, granted to Juan B. Alvarado, the tract of land known by the name of Mariposas, to the extent of ten square leagues within the limits of the Snow Mountain, Sierra Nevada, and the rivers known by the names of the Chanchilles, of the Merced and San Joaquin, as his property, subject to the approbation of the most excellent departmental assembly, and to certain conditions.

This grant conveyed to him a present and immediate interest. If any subsequent grantee of the government had made a survey within the described limits, his title would have been paramount to that of Alvarado. But no such grant and survey were made.

The case of Rutherford v. Greene's Heirs, 2 Wheat. 196, examined.

No further and definite grant, stating that the conditions had been complied with, was necessary.

The conditions were conditions subsequent, but a noncompliance with them did not amount to a forfeiture of the grant.

There was no unreasonable delay or want of effort on the part of Alvarado to fulfill the conditions, so that there is no room for the presumption that he intended to abandon the property.

The reasons explained why Alvarado did not make a survey or a settlement, and why Fremont, his vendee, did not.

One of the conditions was that Alvarado should not sell, alienate, or mortgage the property. But this restriction was void as being against the laws of Mexico, and moreover, at the time of the sale to Fremont, California was held by the United States as a conquered country, and an American citizen had a right to purchase property. Although Mexico might have avoided the sale, there is no public law which could require the United States to do so; and any law which subjected an American citizen to disabilities was necessarily abrogated without a formal repeal.

The question about the right to mines does not arise in the present case.

The United States has to direct, by law, how the survey is to be made, in the form and divisions prescribed for surveys in California, embracing the entire grant in one tract.

MR. JUSTICE DANIEL did not sit in this cause.

Page 58 U. S. 543

Fremont, the appellant, claimed title to a large tract of land, and prosecuted his claim before the board of commissioners, who decided in his favor. That decision having been reversed by the district court, the case was now brought here by appeal.

The title of Fremont was derived from Juan Alvarado, to whom a grant was issued, in 1844, by Manuel Micheltorrena, then Governor and Commandant-General of the Department of the Californias, purporting to be founded upon the patriotic services of Alvarado. It appears that as early as 1836, Alvarado was conspicuous in the commotions which took place in California, resulting from the same proceedings of the government of Mexico which occasioned the revolution in Texas. California declared itself opposed to the centralization of power in Mexico, and Alvarado was proclaimed governor by the provincial deputation. In 1837, he repelled the effort of Cavvillo to take possession of the government, who had been appointed governor by Mexico, and Alvarado was afterwards confirmed as constitutional governor by the authorities of Mexico. He continued in authority until 1842, when Micheltorrena was appointed to succeed him, under whom Alvarado was employed as first counselor of the departmental junta, with a salary of $1,500.

On the 23d of February, 1844, Alvarado petitioned Micheltorrena to grant him the land in question. And as this is one of the first cases in this Court of this description, it is deemed proper to insert in full the title under which the appellant claimed. The documents are as follows:

"Record of proceedings instituted by citizen Juan Bautista Alvarado, colonel of the auxiliary militia, soliciting the tract of land called 'Las Mariposas.'"

"Anno 1844. Number 352."

"To his Excellency the Governor:"

"I, Juan B. Alvarado, colonel of the auxiliary militia of this department, to your Excellency, with due respect, do represent, that being actually the owner (by purchase which I made) of a very small tract of land, which is not sufficient to support the cattle with which it is stocked, without injury to the estates likewise there established, and being desirous of increasing it, at the same time to contribute to the spreading of the agriculture and industry of the country, I solicit your Excellency, according to the colonization laws, to be pleased to grant me ten sitios de ganado mayor (ten square leagues) of land, north of the River San Joaquin, within the limits of the Snow Mountain (Sierra

Page 58 U. S. 544

Nevada), in the same direction the River Chanchilles, in the east part of the Merced, on the west, and the before-mentioned San Joaquin, with the name of the Mariposas, offering to present to Y. E. the proper plan and draft thereof so soon as the same shall be made with exactness, not doing it at this time for the difficulty of being a wilderness country on the confines of the wild Indians, and because I desire that my claim for this cause may not be delayed."

"Therefore I hope from the good intentions of Y. E., in favor of the improvements of the country, the most favorable result, if it be in justice, by which I will receive favor."


"Rancho del Alizal, 23d of February, 1844"

"Monterey, 27th of February, 1844"

"Let the secretary of state report, and he may require such other reports as he may deem expedient, should he need them."


"As directed by his Excellency, the governor, let the preceding petitioner be referred to the first alcalde of San Jose, that he may be pleased to report thereon."


"Monterey, 26th * of February, 1844."

"To the Secretary of State:"

"The land solicited in this petition by Don Juan B. Alvarado is entirely vacant; it does not belong to any individual, town, or corporation, and I believe that for these reasons, as well as that of the petitioner being meritorious for his patriotic services and commendable circumstances, there is no impediment for granting him the said land in fee. This is all I have to report to your Honor in answer to your preceding superior order, which opinion I submit to the decision of your Honor, which will be the most proper one."


"Town of San Jose, Gaudaloupe, February 29, 1844"

"To his Excellency the Governor:"

"According to the report of the magistrate of San Jose, and the information I have acquired from persons who know the land, it is ascertained the same may be granted to the petitioner, who may be favorably considered for the services which he has rendered to the department. The superior judgment of Y. E. will decide the expediency."


"Monterey, 29th of February, 1844 "

Page 58 U. S. 545

"Monterey, 22d of February, 1844"

"Let the title be issued, expressing that he the petitioner is meritorious for his patriotic services, and consequently worthy of preference."


"Monterey, 29th of February, 1844"

"Having considered the petition which is at the beginning of this record of proceedings, espediente, the preceding report, and the patriotic services of the petitioner, with everything worthy of consideration in the premises, in conformity with the laws and regulations upon the subject, I declare Don Juan Bautista Alvarado owner in fee of the tract of land known by the name of 'Las Mariposas,' within the boundaries of the Snow Mountains, Sierra Nevada, and the rivers called the Chanchilles, the Merced, and San Joaquin."

"Let the proper patent be issued, let it be registered in the respective book, and let this record of proceedings be transmitted to the most excellent departmental assembly, for its approval."


"Brigadier General of the Mexican Army, Adjutant General"

"of the staff of the same, Governor and Commandant General"

"of the Department of the Californias"

"Whereas, Don Juan B. Alvarado, colonel of the auxiliary militia of this department, is worthy, for his patriotic services, to be preferred in his pretension for his personal benefit and that of his family, for the tract of land known by the name of the Mariposas, to the extent of ten square leagues sitios de ganado mayor within the limits of the Snow Mountain, Sierra Nevada, and the rivers known by the names of the Chanchilles, of the Merced, and the San Joaquin, the necessary requirements, according to the provisions of the laws and regulations, having been previously complied with, by virtue of the authority in me vested, in the name of the Mexican nation, I have granted to him the aforesaid tract, declaring the same by these presents his property in fee, subject to the approbation of the most excellent the departmental assembly, and to the following conditions:"

"1. He shall not sell, alienate, or mortgage the same, nor subject it to taxes, entail, or any other encumbrance."

"2. He may enclose it without obstructing the crossings, the roads, or the right of way; he shall enjoy the same freely and without hindrance, destining it to such use or cultivation as may most suit him; but he shall build a house within a year, and it shall be inhabited."

"3. He shall solicit, from the proper magistrate, the judicial possession of the same, by virtue of this patent, by whom the boundaries shall be marked out, on the limits of which he the grantee shall place the proper landmarks. "

Page 58 U. S. 546

"4. The tract of land granted is ten sitios de ganado mayor, ten square leagues, as before mentioned. The magistrate who may give the possession shall cause the same to be surveyed according to the ordinance, the surplus remaining to the nation for the proper uses."

"5. Should he violate these conditions, he will lose his right to the land, and it will be subject to being denounced by another."

"Therefore, I command that these presents being held firm and binding, that the same be registered in the proper book, and delivered to the party interested, for his security and other purposes."

"Given in Monterey, this 29th day of the month of February, in the year of 1844."


"MANUEL JIMENO, Secretary"

"This patent is registered in the proper book on the reverse of folio '6.'"


The evidence showed that the land continued to be disturbed by hostile Indians until after the occupation of California by the Americans and until 1849.

On February 10, 1847, Alvarado executed a deed of the above-described property to Fremont, with a general warranty of title. The consideration stated was three thousand dollars.

In 1849, Fremont caused a map of the grant to be made, and used efforts to have it settled.

On the 21st of January, 1852, Fremont filed his claim before the commissioners to ascertain and settle the private land claims in the State of California, sitting as a board, in the City of San Francisco.

On December 27, 1852, the board decreed that the claim be confirmed, to the extent of ten square leagues, being the same land described in the grant and map filed in the office of the United States Surveyor General for California, November 21, 1851.

On the 20th of September, 1853, there was filed in the office of the commissioners a notice from the Attorney General of the United States, that an appeal from the decision of the commissioners to the District Court of the United States for the Northern District of California, would be prosecuted; and in consequence of that appeal, the decision of the commissioners was reversed on the 7th of January, 1854. It was now brought before this Court by an appeal from the district court.

Page 58 U. S. 552

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