The regulations for the colonization of the territories of the
government of Mexico, made 21st November, 1828, in pursuance of the
act of the General Congress, August 18, 1824, provided:
1st. That the governors of the territories should be empowered
to grant vacant lands, among others, to private persons who may ask
for them, for the purpose of cultivating and inhabiting the
same.
2d. That every person soliciting lands shall address to the
governor a petition, expressing his name, country, and religion,
and describing as distinctly as possible, by means of a map, the
land asked for.
3d. The governor shall proceed to obtain the necessary
information, whether the petition contains the proper conditions
required by the law of the 18th August, 1824, both as regards the
land and the petitioner, in order that the application may be at
once attended to; or, if it be preferred, the municipal authority
may be consulted, whether there be any objection to the making of
the grant.
4th. This being done, the governor will accede or not to such
petition, in conformity to the laws on the subject.
5th. The definitive grant asked for being made, a document,
signed by the governor, shall be given, to serve as a title to the
party interested, wherein it must be stated that the grant is made
in exact conformity with the provisions of the law; in virtue of
which, possession shall be given.
6th. The necessary record shall be kept, in a book provided for
the purpose, of all the petitions presented and grants made, with
maps of the lands granted, and a circumstantial report shall be
forwarded quarterly to the supreme government.
Where there was no evidence, with respect to a grant of land in
California, that anyone of these preliminary steps had been taken,
this Court cannot confirm the claim.
The decisions of this Court in cases of claims to land in
Louisiana and Florida are not applicable where precise and recent
regulations exist, directing the manner in which land shall be
granted.
There are also strong grounds of suspicion with respect to the
bona fides of the grant in question; but as the claimant
may not have had an opportunity of producing evidence in the court
below, the case will be remanded to that court for further
proceedings.
The facts are stated in the opinion of the Court.
Page 61 U. S. 60
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, affirming a
decree of the land commissioners.
The claimant below gave in evidence the following document,
purporting to be a grant of a large tract of land on the upper
waters of the Sacramento River, from a Mexican Governor of
California, dated 23d May, 1846:
"Pio Pico, Constitutional governor of the department of
California:"
"Whereas Mr. Henry Cambuston has petitioned, for his own
personal advantage, for a tract of unoccupied land in the valley of
the Sacramento, joining on the north to Antonio Osio, on the south
Mr. Sutter, on the east Mr. Flugge, and on the southwest the River
Sacramento -- the investigations being previously made according to
the custom, and in conformity with the law of the 18th of August,
1824, and the regulations of the 21st of November, 1828 -- in
virtue of the powers which have been conferred on me, in the name
of the Mexican nation, I grant the tract of land expressed, lying
out of the boundaries of the before-mentioned landholders,
declaring it his estate by the present letters, provided it shall
be approved by the extreme departmental assembly, and under the
following conditions: "
Page 61 U. S. 61
"1st. He may, without prejudice to the crossings, roads, or
attendances, fence it, enjoying it freely and exclusively, devoting
it to any use or cultivation, as best may suit his
convenience."
"2d. When the title shall be confirmed, he shall demand of the
respective judge judicial possession of it, by virtue of this
dispatch, by which the boundaries shall be designated with the
necessary landmarks."
"3d. The claim of land, for which this grant is made, has an
area of eleven square leagues of pasture, if there is that outside
of the property of the others, whose boundaries are to be
respected, and if there should not be, the grantee shall be
satisfied with that which remains."
"The judge who gives possession shall cause it to be surveyed
according to the ordinance, leaving the residue for the convenient
uses of the nation."
"Consequently, I command that he hold the present title as true
and valid."
"It shall be recorded in the respective book, and be delivered
to the party interested for his security and other uses."
"Given in the city of Los Angeles, on this common paper, for
want of sealed, on the 23d day of May, 1846."
"[Signed] PIO PICO"
"[Signed] JOSE MATIAS MORENO"
This document was deposited, by the claimant, with Edward
Canbey, Assistant Adjutant General of the Army of the United
States, on the 10th July, 1850, who at that time had charge at
Monterey of the government archives. These archives have since been
transferred to the office of the Surveyor General, kept at San
Francisco. There is no evidence in the case that it was ever seen
in or out of the possession of the claimant, from its date 23d May,
1846 down to the time of depositing it, as above mentioned, except
that derived from one witness, who appears to have been interested
in the grant, and whose testimony, therefore, must be laid out of
the case. Although the document in terms directs that it shall be
recorded in the proper book of records, no record of the same was
given in evidence, nor its absence accounted for. It recites in the
usual way that the claimant had presented to the governor a
petition for a grant of the land, and also that the customary
examinations had been made into the circumstances and fitness of
making the grant to the petitioner. No petition was produced at the
trial, nor any report by any officer as to the reasons and
propriety of conceding the tract asked for, nor any evidence
accounting for the nonproduction of either.
Page 61 U. S. 62
The case stands, so far as the claim of title is concerned, upon
the naked document itself, purporting to be a donation of the
eleven square leagues of land, together with evidence tending to
establish its genuineness, and slight proof in respect to the
possession of the tract.
The original document was not produced either before the
commissioners or the district court, and the only proof of its
genuineness was the testimony of two witnesses who had seen the
signatures of Governor Pico and the Secretary Moreno on file at the
Surveyor General's office. One of them (Crosby) says he believes
the signature of Pico to be genuine, but has no knowledge of the
handwriting of Moreno; the other (Castro) that he knows the
signatures of both Pico and Moreno, and that they are genuine.
There is another witness (Morenhont) who says that he had seen
Moreno write once, and had corresponded with him, and that, so far
as he can judge, it is his genuine signature. This witness,
however, cannot be relied on, as he is the person interested in the
claim.
The regulations for the colonization of the territories of the
government of Mexico, made 21st November, 1828, in pursuance of the
Act of the General Congress, August 18, 1824, provided:
1st. That the governors of the territories should be empowered
to grant vacant lands, among others, to private persons who may ask
for them, for the purpose of cultivating and inhabiting the
same.
2d. That every person soliciting lands shall address to the
governor a petition, expressing his name, country, and religion,
and describing as distinctly as possible, by means of a map, the
land asked for.
3d. The governor shall proceed to obtain the necessary
information, whether the petition contains the proper conditions
required by the law of the 18th August, 1824, both as regards the
land and the petitioner, in order that the application may be at
once attended to, or, if it be preferred, the municipal authority
may be consulted, whether there be any objection to the making of
the grant.
4th. This being done, the governor will accede or not to such
petition, in conformity to the laws on the subject.
5th. The definitive grant asked for being made, a document
signed by the governor shall be given, to serve as a title to the
party interested, wherein it must be stated that the grant is made
in exact conformity with the provisions of the law in virtue of
which possession shall be given.
6th. The necessary record shall be kept, in a book provided for
the purpose, of all the petitions presented and grants made, with
maps of the lands granted, and a circumstantial report shall be
forwarded quarterly to the supreme government. There are many other
provisions in the system of
Page 61 U. S. 63
regulations, relating to the disposition of the public lands,
adopted on the 18th November, 1828, which it is not at present
material to notice. Those specified have a special bearing upon the
case before us. And in view of them it will be observed, according
to the facts as presented at the trial before the commissioners and
afterwards before the district court, to which we have already
referred at large, that not one of the preliminary steps made
requisite by the act of the Mexican Congress of 1824, and the
regulations of 1828, to a grant of the public domain by the
governors has been observed -- at least no evidence was given
before either of these tribunals of the observance of any one of
them. And we do not see how they can well be dispensed with, as
they are not only expressly prescribed by the regulations as
essential to guard against improvident grants, but constitute an
essential part of the record of the title. It is true the document
recites that a petition was presented and that the customary
investigations had been made in respect to the application. But
this cannot be regarded as conclusive or even satisfactory evidence
of these facts when the question is raised whether or not the
alleged grant is made in conformity with the requirements of the
law -- in other words, whether the preliminary conditions had been
complied with, which enabled the governor in the particular case to
make the grant, especially in respect to those preliminary
proceedings which are required to be made matters of record and of
which record evidence should have been produced or its
nonproduction satisfactorily accounted for.
The question here is not whether the fact of the habitual grant
of lands by Mexican governors of the Territory of California to
settlers, and also whether the customary mode and manner adopted in
making grants, do not furnish presumptive evidence both of the
existence of the power and of a compliance with the forms of law in
the execution? We agree that the affirmative of these questions has
been frequently determined by this Court in cases involving Spanish
titles in the territories of Louisiana and Florida.
31 U. S. 6 Pet.
729,
31 U. S. 731;
34 U. S. 9 Pet.
134;
60 U. S. 19
How. 347. But no such presumptions are necessary or admissible in
respect to Mexican titles granted since the act of 18th of August,
1824, and the regulations of 21st November, 1828. Authority to make
the grants is there expressly conferred on the governors, as well
as the terms and conditions prescribed, upon which they shall be
made. The Court must look to these laws for both the power to make
the grant and for the mode and manner of its exercise, and they are
to be substantially complied with, except so far as modified by the
usages and customs of the
Page 61 U. S. 64
government under which the titles are derived, the principles of
equity, and the decisions of this Court.
58 U. S. 17 How.
542
We think, for the reasons above stated, that the case in the
court below was too defective to have warranted a confirmation of
the title to the claimant, as it was unsupported by the evidence,
and also for the further reason, for aught that appears in the
proofs, the alleged grant has never been recorded in the proper
book, or, indeed, in any book of the Spanish records. This is
expressly required by the regulations of November, 1828, and
enjoined in the grant itself. The record should have been produced,
or its nonproduction reasonably accounted for.
In the examination of the evidence in this case, we have found
it very difficult to resist a suspicion as to the
bona
fides of the grant in question. It is a pure donation, without
pecuniary consideration or meritorious services rendered to the
government of Mexico. It is unaccompanied, as we have seen, with
the forms and usages always observed in disposing of the public
lands. Although purporting to be made on the 23d May, 1846, it was
unknown to any person besides the grantee himself; and another
interested party, till filed among the public archives, 10 July,
1850, after the cession of California, by Mexico, to this
government. It was made but a month and a half before the country
was taken possession of by the arms of the United States, and made
by a person who had but recently expelled from the territory by
force its lawful governor, Micheltorena, and taken possession of it
himself. Whether or not Pico had been recognized by the existing
government in Mexico, at the time the grant is dated, does not
appear. Micheltorena was overthrown by the joint forces of Castro
and Pico, in the spring or fore part of the summer of 1845.
See Captain Sutter's evidence, in original record in
Reading's Case,
18 How. 1; also Report of General Cass to Senate on California
Claims, February 23, 1848.
Civil commotion raged throughout the territory, from this period
down to the 7th July, 1846, when the authority of Pico and Castro
themselves was subverted, and possession taken and held by the arms
of the United States, until the cession of the country to this
government by the Treaty of Guadalupe Hidalgo.
The grant purporting to have been made by Pico, so near the time
when the government of the territory had passed from his hands,
and, indeed, during the very heat and conflict of the struggle in
which his power was overthrown, it, and all others similarly
situated, should be inquired into and scrutinized with great care,
both as to the authority of the governor
Page 61 U. S. 65
to make them, and the
bona fides of its exercise, in
order to prevent imposition and frauds.
The court below appears to have been very much pressed with the
unsatisfactory character of the evidence, and with doubts as to the
genuineness of the title, and seems to have yielded rather to the
apparent acquiescence of the representative of the government, in
the decision of the commissioners, than to any settled convictions
of its own judgment.
We should not hesitate to reverse the decree below, and direct a
decree against the claimant, were it not that the mode and manner
of conducting the case, both before the commissioners and the
district court, on behalf of the government, may have misled him,
for if the objections here stated had been made at the proper time
before either of the tribunals, it may have been in his power to
have removed them by the introduction of further evidence. It would
be unjust, therefore, to deprive him, under the circumstances, of
the opportunity to furnish such evidence.
We shall therefore
Reverse the decree and remand the case to the court below
for a further hearing.