Where there was a grant of land in California in 1843, with
three boundaries and the quantity stated, and in 1845 a new grant
was made which was approved by the departmental assembly subject to
the condition that within four months a map of the land should be
made, this was a condition subsequent, the noncompliance with which
did not work a forfeiture of the grant, but only left the land
liable to be denounced.
Moreover, the disturbed state of the country was a sufficient
reason for not making the survey.
The facts are stated in the opinion of the Court.
MR. JUSTICE GRIER delivered the opinion of the Court.
On the 27th January, 1843, the claimants and appellees in this
case, Juan Manuel Vaca and Jose Phelipe Pena, the latter under the
name of Armijo, received a grant of land from Micheltorena, then
governor, the boundaries of which, as stated in the grant, are the
Sacramento River on the east, on the west the Sierra of Napa; at
the north, the Creek of Lihuaytos, which was also given as the name
by which the tract should be designated, and the extent ten sitios
de ganado mayor. Prior to this grant, a sketch or map was
furnished, according to the law, as is shown in the recitals of the
The grant was made, as expressed in it, subject to "the
measurements to be made of contiguous ranchos," and the juridical
possession to be given after the confirmation of the grant.
Among the contiguous ranchos, on the same creek or river, and
which had not been measured, was that of William Wolfskill. Between
the claimants and Wolfskill a dispute of boundary arose which
prevented the lands of either from being measured, which continued
In 1845, the dispute was settled by proceedings had before the
proper authorities, in which it was agreed that Wolfskill should
remain with the lands that he claimed on the upper part of the
creek, and Vaca and Pena should take theirs adjoining his on the
Vaca and Pena petitioned to Governor Pico for a new grant,
corresponding to the agreement, and producing the former grant as a
foundation for it.
Page 59 U. S. 557
The governor made the grant according to the agreement, bounding
the rancho by the eastern limits of Wolfskill, and subject to the
measurement to be made of the contiguous ranchos previously
The prior proceedings and decree of concession were passed to
the departmental assembly, and the concession was approved, under
the condition that within four months they should put in the hands
of the governor a proper map of the land.
The grant by Paco designated the tract as "Los Putos." The
stream of Los Putos is the same called in the former grant
It is not worthwhile to inquire whether the departmental
assembly had any authority to annex new conditions to the grant
thus approved by them. It is a condition subsequent which, at the
worst, only left the title of the grantee open to be denounced. But
as the claimant was hindered from performing it by the
revolutionary state of the country, the nonfulfillment of it will
not work a forfeiture of his title.
The chief objection urged to this grant is the want of a survey,
and that there is no sufficient designation of boundaries to sever
it from the public domain. It is a sufficient answer to this that
the quantity is defined and the general locality. The claimant had
been in possession before applying for the grant under a license
from Vallejo; the tract was known by the designation of "Los
Putos," or "Lihuaytos." It was to be located on the eastern
boundary of Wolfskill, and on the margin of the river.
The district court confirmed the grant on the authority of the
case of Fremont v. United
17 How. 542. As that case is directly in
point and overrules the objections made to this grant, we do not
think it necessary to pursue the subject further.
The decree of the district court is affirmed.
MR. JUSTICE DANIEL dissented.
For the reasons of his dissent, see
the preceding case
of Arguello v. United