Where a claimant of land in California produced documentary
evidence in his favor copied from the archives in the office of the
Surveyor General and other original grants by Spanish officers, the
presumption is in favor of the power of those officers to make the
Page 60 U. S. 344
If the power be denied, the burden of proof is upon the party
who denies it.
The history of California with respect to the power of its
governors to grant land examined.
The boundaries of the tract of land, as decreed by the district
The nature of the claim, and a list of the documents in support
of it, are given in the opinion of the Court.
The decree of the district court was as follows,
"That the claim presented in the petition filed in this case for
the place called San Antonio is valid to the whole extent of its
bounds, to-wit, having for its northern boundary a line commencing
on the Bay of San Francisco at a point where there are close to the
said bay the two cerritos, as described in the first possession
given by Martinez to Louis Peralta on the 16th of August, 1820,
running from the said bay eastwardly along by the southern base of
the cerritos of San Antonio up a ravine, at the head of which there
is a large rock or monument looking to the north, described in
evidence as the Sugarloaf Rock; thence by the southern base of said
rock to the comb or crest of the coast range of mountains, or the
Sierra; thence for the western boundary a line running along the
comb of the said Sierra until it reaches the eastern extremity of a
line, beginning on the said Bay of San Francisco at the mouth of
the deep creek of San Leandro, and running eastwardly up the said
creek to its head or source in the Sierra, and to the comb or crest
thereof, which last line is the southern boundary of the land of
San Antonio; and by the said Bay of San Francisco, from the mouth
of the said deep creek of San Leandro up to the beginning of the
said line, which has been described as the northern boundary of
said tract, which line along the bay constitutes its western
"And it is hereby further adjudged, ordered, and decreed that
there be confirmed to the said Domingo and Vicente Peralta the
northern portion of said land of San Antonio, bounded as follows:
on the north by the northern boundary of said tract of San Antonio
as above described, on the east by the comb of the said Sierra, on
the west by the Bay of San Francisco, and on the south by a ravine
a short distance south of the buildings in the Town of Oakland, on
the north of which ravine there is a small house in sight of the
public road, being the line of division between this land and the
land of Antonio Peralta, which line extends from the said bay to
the most eastern boundary of the rancho of San Antonio."
The United States appealed from this decree.
Page 60 U. S. 345
MR. JUSTICE GRIER delivered the opinion of the Court.
This case originated before the commissioners for ascertaining
and settling private land claims in California.
Domingo and Vicente Peralta claimed as grantees and devisees of
their father, Luis Peralta.
The documentary evidence filed in support of the claim consists
of a true copy from the archives in the office of the Surveyor
General of California, containing, so far as they are material in
the present inquiry, the following averments:
1. The petition of Luis Peralta to the governor for a grant of
land, extending from the creek of San Leandro to a small mountain
adjoining the sea beach, at the distance of four or five leagues,
for the purpose of establishing a rancho, dated June 20, 1820.
2. The decree of Governor Sola, therein directing Captain Luis
Antonio Arguello to appoint an officer to place the petitioner in
possession of the lands petitioned for, dated August 3, 1820.
3. Order of Captain Arguello, dated August 10, 1820, detailing
Lieut. Don Ignacio Martinez for that purpose.
4. The relinquishment of Father Narciso Duran, on behalf of the
Mission of San Jose, of any claim to the land, and reserving the
privilege of cutting wood on the same, which, he says, should
remain in common, dated August 16, 1820.
5. Under the same date, the return of Lieut. Martinez, upon the
order to give the possession, describing the boundaries &c.
6. The decree of the governor directing a portion of the lands
assigned to Luis Peralta, by the foregoing act of possession, to be
withdrawn, upon the reclamation of the Mission of San Francisco,
who claimed that the said portion of the lands was then in the
occupancy of the mission as a sheep ranch.
7. The consent of Father Juan Cabot and Paloz Ordez, ministers
of the mission, that the boundaries of the land solicited by Luis
Peralta should be established at the rivulet, at the distance of
three and a half to four leagues from the rancho house of the
8. The return of Maximo Martinez upon Governor Sola's second
decree for the delivery of possession, filing the boundaries in
accordance with the claim of the mission, at a rivulet which runs
down from the mountains to the beach, where there is a grove of
willows, and about a league and a half from the cerito (little
mountain) of San Antonio, in the direction of San Leandro.
Page 60 U. S. 346
9. A document dated October, 1822, and signed Sola, setting out
that on that day was issued in favor of Sergeant Luis Peralta by
the governor of the province the certifying document for the land
which has been granted him, as appears by the writ of possession
which was given him by the lieutenant of his company, Don Ignacio
Martinez, in conformity with the orders of the government.
10. A letter from Luis Peralta protesting against the claim of
the mission, dated October 14, 1820.
11. A representation from Captain Don Luis Arguello to the
governor, dated June 23, 1821, advocating the rights of Sergeant
Peralta, in opposition to those of the mission, to the land in
controversy; and lastly the description of the land returned by
Luis Peralta, in obedience to the government, of the 7th of
The claimants gave in evidence also the original grant from
Governor Sola to Luis Peralta, dated 18th of August, 1822; the
petition of Luis Peralta to Governor Arguello, praying the
restitution of the lands which had been taken from him on the
demand of the mission; and the decree of Arguello making such
restitution and directing him to be again put in possession by the
same officer who had executed the former act of possession. To this
order Maximo Martinez made a return, duly executed, certifying that
the grantee had been newly put in possession of the place called
"Cerito de St. Antonio, and the rivulet which crosses the place, to
the coast, where is a rock looking to the north."
It was further shown from the public records, that on the 9th of
April, 1822, the civil and military authorities of California
formally recognized and gave in their adhesion to the new
government of Mexico, according to the plan of Iguala and Treaty of
Cordova. Also that in 1844, Ignacio Peralta, one of the heirs of
Luis Peralta, petitioned the government for a new title to the land
claimed in consequence of the original title papers' having been
lost or mislaid. The archives show also that on the 13th of
February, 1844, an order was made by Micheltorena that a title be
issued. Of the same date, there is the usual formal document
"declaring Don Luis Peralta owner in fee of said land, which is
bounded as follows:"
"On the southeast by the Creek of San Leandro; on the northwest
by the Creek of Los Ceritos de San Antonio, the small hills of San
Antonio; on the southwest by the sea; and on the northeast by the
tops of hills range, without prohibiting the inhabitants of Contra
Costa from cutting wood for their own use, they not to sell the
This document contains an order that "this espediente be
transmitted to the dupartmental
Page 60 U. S. 347
assembly for their approval," but nothing further appears to
have been done, nor is the signature of Micheltorena attached to
The authenticity of these documents is admitted. The objections
urged against their sufficiency to establish the claim are first,
that the officers had no power to make grants of land, and second
that the northern boundary of the land described does not extend
beyond a certain creek or stream known by the name of San Antonio.
This would exclude about one half of the claim.
We are of opinion that neither of these objections is supported
by the evidence in the case.
We have frequently decided that
"the public acts of public officers, purporting to be exercised
in an official capacity and by public authority, shall not be
presumed to be usurped, but that a legitimate authority had been
previously given or subsequently ratified."
To adopt a contrary rule would lead to infinite confusion and
uncertainty of titles. The presumption arising from the grant
itself makes it prima facie
evidence of the power of the
officer making it, and throws the burden of proof on the party
denying it. The general powers of the governors and other Spanish
officers to grant lands within the colonies in full property, and
without restriction as to quantity, and in reward for important
services, were fully considered by this Court in the case of
United States v.
8 Pet. 436.
The appellants, on whom the burden of proof is cast to show want
of authority, have produced no evidence, either documentary or
historical, that the Spanish officers who usually acted as
governors of the distant provinces of California were restricted in
their powers and could not make grants of land. The necessity for
the exercise of such a power by the governors if the Crown desired
these distant provinces to be settled is the greater because of
their distance from the source of power. By the royal order of
August 22, 1776, the northern and northwestern provinces of Mexico
were formed into a new and distinct organization called the
Internal Provinces of New Spain. This organization included
California. It conferred ample powers, civil, military, and
political, on the commandant general. The archives of the former
government also show that as early as 1786, the governors of
California had authority from the commandant general to make
grants, limiting the number of sitios which should be granted. In
1792, California was annexed to the viceroyalty of Mexico, and so
continued till the Spanish authority ceased. An attempt to trace
the obscure history of the various decrees, orders, and regulations
Page 60 U. S. 348
the Spanish government on this subject would be tedious and
unprofitable. It is sufficient for the case that the archives of
the Mexican government show that such power has been exercised by
the governors under Spain and continued to be so exercised under
Mexico, and that such grants made by the Spanish officers have been
confirmed and held valid by the Mexican authorities. Sola styles
himself political and military Governor of California. He continued
to exercise the same powers after his adhesion to the Mexican
government under the provisions of the plan of Iguala and the
twelfth section of the Treaty of Cordova. The grant in fee given by
Sola was after the revolution.
The government of Mexico since that time has always respected
and confirmed such concessions when any equitable or inchoate
right, followed by possession and cultivation, had been conferred
by the governors under Spain. The Case
18 How. 540, was that of a permit by
Governor Sola, afterwards confirmed by the Mexican government and
by this Court. The plaintiff in error has not been able to produce
anything from historical documents or the archives of California
tending to show a want of power in the respective officers in this
case. On the contrary, the presumption of law is confirmed by both.
The order of Micheltorena, in 1844, for the granting the new title
to Peralta, is itself evidence of the usage and custom, and that
the acts of Sola and Arguello were considered valid, and that the
title, whether equitable or legal, conferred to them, should be
respected and confirmed by the government.
As the validity of the petitioner's title has been assailed on
the ground of want of authority alone, it is unnecessary to notice
more particularly the various documents exhibited in support of it.
The grant by Sola of a portion of the tract of which Peralta had
been originally put in possession is a complete grant in fee for
that portion. The restoration by Arguello of the original
boundaries, by decree and act of the public officer, may not have
the character of a complete grant, but it is of little importance
to the decision of the case whether it conferred only an inchoate
or equitable title, connected with an undisputed possession of
thirty years, and confirmed again in 1844, by the order of the
governor of California; its claim for protection under the treaty
with Mexico cannot be doubted notwithstanding its want of
confirmation by the departmental assembly.
The only remaining question is the position of the northern
Peralta's original petition in June, 1820, described the
Page 60 U. S. 349
desired, as beginning at a creek called San Leandro, "and from
this to a white hill, adjoining the sea beach, in the same
direction, and along the coast four or five leagues."
The return of Ignacio Martinez, the officer who executed the
order for delivery of possession on the 16th of August, 1820,
"the boundaries which separate the land of Peralta, to be marked
out as follows: the deep creek called San Leandro, and at a
distance from this, say five leagues, there are two small
mountains, cerritos; the first is close to the beach; next to it
follows the San Antonio, serving as boundaries, the rivulet which
issues from the mountain range, and runs along the foot of said
cerrito of San Antonio, and at the entrance of a little gulch there
is a rock elevating itself in the form of a monument, and looking
towards the north."
This is the description of the northern boundary. It refers to
stable monuments -- two hills, a rivulet passing at their foot, and
a monumental rock. In other documents, Peralta speaks of this line
"as the dividing boundary with my neighbor, Francisco Castro."
Again, in the return of Ignacio Martinez to the order of the
governor, Arguello, in 1823, to redeliver the possession to Peralta
up to his original boundary, he describes this within boundary by
the same monument, "the cerrito San Antonio, the arroyito or
rivulet which crosses the place to the coast, where is a rock
looking to the north."
Lastly, the title of confirmation by Micheltorena in 1844, as
quoted above, though not in the very words of the above documents,
clearly describes the same monuments. These hills, rivulet, and
rock, are well known monuments, and their position is
The testimony of the opinions of witnesses who have but lately
arrived in the country, who are ignorant of the language and
traditions of the neighborhood, and who are all interested in
defeating the claim of the petitioners, can have little weight
against the knowledge of others who were present when the lines
were established some thirty years ago, and have known these
boundaries till the present time.
The decree of the circuit court is therefore
MR. JUSTICE DANIEL dissented.