The court again decides, as in United States v. Reading, page 1
that it was the duty of the Governor of California, and not that of
the grantee, to submit a grant of land to the departmental
And, moreover, when the case was submitted, and a committee
reported in favor of the grant, but no final action appeared to
have been had upon the matter, the grantee should have the benefit
of the presumption of a decision in his favor.
It again decides, as in the preceding case of Arguello
v. United States,
that the ten littoral leagues
spoken of in the regulations of 1824 and 1828 do not mean
prohibition of grants of land to native citizens for their own
The title to lands held by the missions of California was never
vested in the church, which had only an usufruct in them, and in
the present case the mission assented to the grant in question.
The 17th section of the regulations of 1828 has no application
to the present case. Also, in 1833 and 1834, the government of
Mexico passed laws to secularize the missions.
The nature of the claim is stated in the opinion of the
Page 59 U. S. 554
The decree of the district court was as follows:
"This cause came on to be heard at the above-stated court on the
transcript and evidence and the arguments of counsel for the United
States, and for the claimant Cruz Cervantes being. It is hereby
ordered, adjudged, and decreed, that the decision and decree of the
board of commissioners, for the ascertainment and settlement of
private land claims in claim of the appellant, Cruz Cervantes, be
and the same is hereby confirmed to the extent of two square
leagues or sitios de ganado mayor, and for no more, being the same
land described in the grant and expediente referred to therein, and
of which judicial possession was given to him, as appears by the
evidence, provided that the said quantity to him granted and now to
him confirmed be contained within the boundaries called for in said
grant and map to which the grant refers, and, if there be less than
two square leagues, or sitios de ganado mayor, within the said
bounds, then there is confirmed to him the said less quantity."
"M. H. M'ALLISTER, Circuit Judge
"OGDEN HOFFMAN, JR., District Judge
From this decree the United States appealed to this Court.
MR. JUSTICE GRIER delivered the opinion of the Court.
The appellee, Cruz Cervantes, having complied with the
provisions required by law, obtained a grant from Nicholas
Guterriez, then Governor of California,
"of a parcel of land known by the name of San Joaquin, bounded
on the north by San Felipe, on the south by Santa, on the west by
the plain of San Juan, and on the east by the hills of the same
containing the quantity of two leagues.
This concession, dated April 1, 1836, was presented to the
departmental assembly for confirmation. The committee reported in
favor of the grant -- "on the 12th of July it was returned to the
committee for its reformation." This concludes the expediente as
certified from the archives. It does not appear whether any further
action was taken on the subject by the assembly, nor do the books
exist among the archives from which any further facts can be
The land granted was reported to be within the ten littoral
leagues, and as having at one time appertained to the mission of
San Juan Bautista -- on a reference of the expediente made to the
steward of the mission, their consent was certified, that "the
place to be adjudicated to the petitioner so far as the hills,
without touching the oak grove," &c.
Page 59 U. S. 555
Within the space of two years, Cervantes entered on the land,
built on it, and cultivated it, and continues so to do. On the 10th
of February, 1841, juridical possession was delivered to him by
metes and bounds with the customary formalities.
The objections to the validity of this grant are: 1. that it was
not approved by the departmental assembly; 2. that the land is
within the ten littoral leagues; 3. that it belonged to a mission,
and it was therefore unlawful to grant it.
1. The first objection, if true in fact, has been disposed of by
this Court in the case of United States v.
decided at this term. Besides, so far as
the archives show any action of the assembly on this grant, it is
an approval of it, and as there is no evidence that it was rejected
or annulled or any further report made on it, the grantee should
have the benefit of the presumption of a decision in his favor.
2. The objection that the land lies within the ten littoral
leagues has just been disposed of in the case of United
States v. Arguello.
3. As to the objection that the land had belonged to the
The large tracts of land appurtenant to the mission
establishments were never vested in the church or any other
corporation or individual by any grant of a legal title. The
missionaries and Indians had an usufruct or occupancy of the land
at the will of the sovereign. The record shows that though the
lands now in question had formerly been occupied by the mission,
they were not so at the time this grant was made. It was made also
with the assent of the mission, who set up no claim to further
The 17th section of the regulations of 1828 forbid lands
"occupied" by missions from being made the subject of "colonization
grants for the present," &c., and can therefore have no
application to lands not so occupied and not made the subject of
"colonization." Besides, in 1833 and 1834, the government of Mexico
passed laws to secularize the missions, since which time the public
authorities have granted these lands to individuals in the same
manner as other public lands, as has been decided by this Court in
the case of United States v.
17 How. 525.
The judgment of the district court is therefore
MR. JUSTICE DANIEL dissented.
For the reasons of his dissent see the preceding case of
Arguello v. United