Where there was a grant of land in California made by the
governor to the secretary of the government, and neither the
petition nor the patent stated the quantity, but the concession and
direction by the governor to the proper officer to issue the patent
limited the quantity to eleven square leagues, this concession and
direction constitute a part of the evidence of title, and are
sufficient to make a good grant for that amount.
Page 59 U. S. 558
The petition to the governor was accompanied with a sketch or
map giving the location and boundaries of the tract. The patent
refers to this sketch, and by it the land can be located.
The fraudulent nature of the grant was not made a question in
the court below, and therefore cannot be made here. Moreover, there
is no evidence of fraud.
The objections that the case was not submitted to the
departmental assembly and that judicial possession was not taken of
the land are overruled by the case of
United
States v. Fremont, 17 How. 542.
Neither the act of the Mexican congress of 1824 nor the
regulations of 1828 prescribe any particular form of grants or
patents of the public lands. And there is no uniformity with
respect to the conditions imposed upon the grantee either in those
which relate to the cultivation or taking possession of the land.
The absence of the condition of settlement within a limited time
will not avoid the grant in this case.
The facts are stated in the opinion of the Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
This is an appeal from a decree of the district Court of the
United States for the Northern District of California, in which a
land claim was confirmed to the appellees, and which had been
previously confirmed by the board of commissioners.
The grant was made to Manuel Jimeno, who was at the time
secretary of the government of California, by Governor Micheltorena
on the 4th November, 1844.
The petition for the same is as follows:
"EXCELLENT SIR GOVERNOR: "
"I, Manuel Jimeno Cassarin, a resident of this department,
represent before Y. E., with due respect that inasmuch as it suits
my interests to establish a rancho about (port) the Sacramento
River, according to the accompanying sketch, I entreat Y. E. to be
pleased to grant to me, since it lies completely unoccupied, and
nobody has petitioned for it, the land, as it is made apparent by
the general map, formed this year by the Land Surveyor Bidwell. By
which grace I will receive mercy from Y. E."
"[Signed] MANUEL JIMENO"
"Monterey, November the 1, 1844"
And on the same day the governor made the following
memorandum:
"Monterey, November 1, 1844"
"The party concerned not being able to report on account of his
being at a time concerned party and secretary of government,
Page 59 U. S. 559
I order that whatever it may be convenient to have in mind for
the purpose of coming to a determination be brought to my
knowledge."
"[Signed] MICHELTORENA"
And on the next day directions were given for the issuing of the
patent, as follows:
"Monterey, November the 2d, 1844"
"After having seen the petition at the head of this record of
proceedings, the uncultivated state in which the land petitioned
for lies, according to the general map which has been formed of the
Sacramento River, and whatever else it was found convenient to
attend to, in conformity with the laws and regulations on the
subject, I declare Don Manuel Jimeno the owner of eleven square
leagues 'Sitios de Ganado Mayor' between Sacramento River, the
ranch which the children of Senor Larkin have applied for, and the
vacant lands lying south, as the respective sketch shows. Let the
corresponding patent be issued, let it be entered in the respective
book, and let it be delivered to the party concerned, for his
security, and other ends."
"[Signed] MICHELTORENA"
And on the 4th November the patent was issued, in the following
terms:
"[L.S.]"
"[Maritime Custom House, Monterey]"
"The citizen Manuel Micheltorena, general of brigade of the
Mexican army, Adjutant-General of the staff of the same, Governor,
Commandant-General, and Inspector of the Department of
Californias."
"[L.S.]"
"[Govern't of the Department of the Californias]"
"Whereas Don Manuel Jimeno has petitioned for his personal
benefit for the tract of land which is unoccupied between the ranch
which has been granted to the children of Don Tomas O. Larkin, the
River Sacramento, and the uncultivated lands which are on the side
of the south, entirely in conformity with the showing in the
corresponding plan. The necessary preliminaries and investigations
having been gone through with, as directed by the laws and
regulations on the subject, exercising the authority in me vested
in the name of the Mexican nation, I have just granted to him the
said land, subject to the following conditions:"
"1. He may enclose it without prejudice to the cross-ways,
roads, and right of way; he shall enjoy it freely and exclusively,
destining it to the use and cultivation which best suits him."
"2. He shall solicit the proper judge to give him juridical
possession
Page 59 U. S. 560
of it, in virtue of this grant, for the which boundaries thereof
shall be marked out, within the limits of which, besides the usual
landmarks, he shall plant some fruit-bearing or some forest trees
of some utility."
"3. If he shall contravene these conditions, he will lose his
right to the land."
"Wherefore, I order this title, being of itself duly firm and
valid. Record thereof shall be taken in the proper book, and that
it be delivered to the party interested for his security, and for
other purposes."
"Given in Monterey this fourth day of November, one thousand
eight hundred and forty-four."
"[Sg'd] MAN'L MICHELT'A"
"[Sg'd] FRANC'O ARCE"
"First Official"
"The record of this grant has been taken in the proper book,
folio."
"FRANC'O ARCE"
On the 21st April, 1846, Jimeno made application to the
departmental assembly for a confirmation of his grant.
"To the excellent departmental assembly:"
"I, Manuel Jimeno, represent before Y. E., with all due respect,
that by the adjoined title is proved the grant, made in my favor,
of a tract of land on the margins of the Sacramento ('corresponde')
River, and, inasmuch as it pertains correspond to Y. E., to give Y.
E. approval."
"I beg Y. E. to deign to grant it to me, whereby I will receive
grace and mercy. I swear so, and Y. E. will be pleased to excuse my
usage of common paper, there being none of the corresponding
paper."
"[Signed] MANUEL JIMENO"
"Monterey, April the 21, 1846"
And on the 3d June, the same year, that body acted upon the
application of which we have the following record:
"Angeles, June 3, 1846"
"Account having been given in today's session to the excellent
departmental assembly, with this instancy, it was ordered to be
referred, together with the respective record of proceedings, to
the committee on vacant lands."
"[Signed] AUGUSTIN OLIVERA"
Page 59 U. S. 561
Jimeno and his wife conveyed all their interest in the land to
the appellees on the 30th August, 1847, soon after which the
grantees took actual possession, and have occupied and possessed
the same ever since.
The petition to the governor was accompanied with a sketch or
map giving the location and boundaries of the tract solicited, and
referred also to a general map of the valley of the Sacramento
River, made by Bidwell, a land surveyor, the same year. The
quantity of land was not specifically designated in the petition.
Neither does the patent itself designate the quantity, but refers
to the sketch accompanying the petition. But the concession and
direction by the governor to the proper officer to issue the patent
limits the quantity to eleven square leagues, and which concession
and direction constitute a part of the evidence of the title, or,
according to the Mexican vocabulary, a part of the "expediente,"
and therefore may well qualify and limit the quantity to this
number even if the number of leagues within the boundaries, as
given by the rough sketch, exceeded it, especially should this
construction be given as the power of the governor to grant to a
single person was limited so as not to exceed this quantity,
according to the 12th section of the decree of the Mexican Congress
of the 18th August, 1824.
The decree of the commissioners, and also of the district court,
very properly limited the confirmation to the extent only of eleven
square leagues, provided the quantity should be contained within
the sketch called for by the patent, and if there should be less
than that quantity, then no more than this lesser quantity is
confirmed.
No question appears to have been made as to the practicability
of locating the grant in the tribunals below; nor do we see any
ground upon which such a question could have been properly raised
in the case.
The plan or sketch found in the expediente in connection with
the description given in the grant furnishes all the materials
essential to determine the boundaries. Three sides are given, and
the quantity will guide the surveyor in closing the lines by
running the fourth.
It has been suggested on the argument here that this grant is a
fictitious one, made by the governor to the secretary of the
territory according to the forms of law for the purpose of
defrauding the United States. One answer to the suggestion is that
no objection as to the
bona fides of the grant was taken
before either of the tribunals below, where it should have been
made, if relied on by the government, so as to have given the
claimants an opportunity to have met it. To permit it to be taken
in the appellate court for the first time, where there is no
Page 59 U. S. 562
opportunity for explanation, would be a surprise upon them of
which they might justly complain. The commissioners say, "the grant
is fully proven, and we find no cause to doubt its genuineness."
And the judges of the district court observe "that the grant is
fully proved; nor is its genuineness called in question."
Besides this answer to the suggestion, even were we to entertain
the question, we see nothing in the record to justify the
imputation. The grant was made 4th November, 1844, at a time when
California was in the full possession of the Mexican authorities
and more than a year previous to any hostile entry of the forces of
the United States, and more than three years before the cession of
the country to this government. The fact that seems most to be
relied on to maintain the suggestion is that Jimeno, the grantee,
was the secretary of the territory at the time, and hence the grant
an act of favoritism. But there is nothing in the decree of 18th
August, 1824, of the Mexican Congress, or in the regulations of the
21st November, 1828, forbidding such grants. On the contrary, it is
known to be the usual mode of remuneration to an officer of the
government for meritorious public services. A preference is given
to such officers in the distribution of the public lands by the 9th
article of decree of 1824, above referred to.
It is also objected that the grant does not contain the
condition of confirmation by the departmental assembly, and also
that there has been no confirmation by that body.
The 5th regulation of November, 1828, provides that grants to
individuals or families shall not be definitively valid without the
previous approbation of the departmental assembly to which the
respective "expedientes" shall be referred. There is nothing in
this or any other regulation that requires this condition to be
inserted in the patent.
It appears from the records in the case that the grant was
submitted to this body by Jimeno on the 21st April, 1846, and that
that body, on the 3d June following, referred it to the committee
on vacant lands; but for aught that appears, no further action was
had upon it. The expediente, however, which was before this body
seems afterwards to have been returned to the appropriate office
for the keeping of these records, and was found in the government
archives.
The 6th regulation of 1828 provides that "if the governor does
not obtain the approval of the departmental assembly, he shall
report the same to the supreme government," together with the
"expediente," for its decision. Inasmuch as the record of the title
was found returned by the governor to the government archives, and
not forwarded to the supreme government, it is
Page 59 U. S. 563
insisted on behalf of the claimants that the fair presumption is
that the grant had been approved; otherwise it would not have been
returned to government archives.
However this may be it is not important to determine, as it was
settled, after full consideration, in the case of
Fremont v.
United States, 17 How. 542,
58 U. S. 563,
that the omission to procure the confirmation under circumstances
existing similar to those attending this case did not operate to
defeat or avoid the title.
The grant, in that case, to Alvarado, was made by the same
governor and in the same year of the present grant, and we may add
that the grantee was a military officer of the government at the
time; the present grantee was a civil officer.
The same case also furnishes a full answer to the objections
that judicial possession was not taken of the land. We refer to the
grounds there stated without repeating them, as the facts in this
case fully warrant the view there presented.
It is also objected that the grant does not contain the usual
condition of cultivation and habitation within the year. Neither
the act of the Mexican Congress of 1824 nor the regulations of 1828
prescribes any particular form of grants or patents of the public
lands. And there appears to have been no uniformity in the
conditions annexed in those issued by the different political
chiefs, nor even as it respects those issued by the same
individual. Great latitude seems to have been exercised in
prescribing these conditions, both as to the number and the nature
of them; also in respect to the time within which the possession
was to be taken when inserted as a condition. It is understood that
the condition was usually dispensed with in cases where the grantee
was in actual possession at the time of the grant. It was probably
dispensed with in the present case, as the grantee was the
secretary of the territory and his services required at the seat of
government, especially, as it appears that a civil disturbance had
broken out between the political authorities and which continued
down until possession was taken of the country by the United States
in 1846 and 1847.
We think it would be going further than required by any of the
provisions of the law of 1824 or regulations of 1828 to hold the
grant void for the want of this condition of possession within a
limited time, more especially as it appears that actual possession
was taken of the land as soon as the state and condition of the
country would admit, and which has been held ever since. And we are
the more bound to hold this construction in respect to this
particular condition, as the court has already held after the
fullest consideration that even in cases where the condition is
contained in the grant, the noncompliance with its terms will not
necessarily have the effect to avoid the title. Circumstances may
excuse the omission.
Page 59 U. S. 564
Upon the whole, we are satisfied that the judgment of the court
below was right, and should be
Affirmed.
MR. JUSTICE DANIEL and MR. JUSTICE CAMPBELL, dissented. For the
reasons of MR. JUSTICE DANIEL's dissent,
see the preceding
case of
Arguello v. United
States.
MR. JUSTICE CAMPBELL, dissenting.
In exercising the jurisdiction conferred by the Act of Congress
of the 3d March, 1851, in reference to claims for lands in
California, it seems to me this Court should be satisfied that the
claimant has received a title from the governor who was a legal
representative of the Mexican nation, and that no credit should
attach to the acts of the usurpers who from time to time occasioned
anarchy and civil war in that territory; that the grant should be,
in spirit and effect, a colonization grant, in accordance with the
Mexican laws; that it should describe the lands so that they can be
identified; and that the conditions of improvement and occupancy
should be substantially fulfilled. The case before us is a claim
for eleven leagues of land lying on the Sacramento River, with that
length and of a league in width. The papers purport to have been
made during the four first days of November, 1844, by the governor
of the territory in favor of one Jimeno, the secretary of the
government. The usual inquiries could not be made, for the party
interested was charged with the performance of that duty, though
the governor recites that, in making the grant, he had conformed to
the regulations. The patent issued the 4th November, 1844, subject
to the conditions that juridical possession should be taken and the
proper boundaries marked out and that the grantee should plant
fruit-bearing, or forest trees of some utility, and if he failed to
perform the conditions he should lose the land. No act was done by
this person during 1844 or 1845, or the early part of 1846 which
indicates any claim on his part to this land. There is a petition
entered by himself on the expediente directed to the departmental
assembly, dated 21st April, 1846, asking for a confirmation and a
certificate of one Olivera, dated 3 June, 1846, that it had been
presented and referred to the committee of public lands. Here the
connection of Jimeno terminates. The preparation of these papers is
the whole extent of that connection. In August, 1847, the
petitioner, Larkin, Consul of the United States at Monterey,
purchases from Jimeno this claim for one thousand dollars, or
rather, that is the price recited in the deed of Jimeno to him. The
American flag had been raised at Monterey twelve months before, and
the whole country was then in the possession of General
Kearney.
Page 59 U. S. 565
We have some unsatisfactory evidence that Larkin, either in 1847
or 1848, sent a Spaniard to enter upon this land; a camp in which
he might find a shelter and some conveniences for collecting cattle
form the facts of this settlement.
Neither, Jimeno nor Larkin entered upon or occupied the land.
The evidence merely shows that Larkin was laying the foundations
for a claim upon the United States, and was wholly unconnected with
the Mexican regulations. The evidence satisfies me that this claim
was fabricated after the difficulties between the United States and
Mexico had occurred, with a view to enable the American consul at
Monterey to profit from it in the event of the cession of the
country to the United States. I lay no stress upon the fact that
the papers are found in the archives. I presume Jimeno was the
keeper of those archives. I dissent from the judgment of the Court
confirming this claim.