The law of Mexico, passed in 1824, directs that it shall not be
permitted to unite in one hand, as property, more than one league
of irrigable land, four leagues of farming land, and six for stock
raising.
Therefore where a person had obtained a grant of five leagues in
Lower California and another grant of eleven leagues in Upper
California, and the departmental assembly held the law to be that
the governor could not unite in the same hand more than eleven
leagues, although it might be in different tracts, the grant in
Upper California must be restricted to six leagues.
It was necessary to its being definitively voted that the grant
of the governor should have the concurrence of the departmental
assembly, and as they reduced it, taking off five leagues, this was
the state of the title, as respected quantity, when the treaty with
Mexico was made.
The facts are stated in the opinion of the Court.
Page 63 U. S. 288
MR. JUSTICE CATRON delivered the opinion of the Court.
Hartnell got a grant from Governor Alvarado, dated June 28,
1841, for a body of land lying in Lower California. The quantity is
not specified in the grant, the outboundaries only being
designated.
In November, 1844, he obtained another grant for eleven square
leagues, lying in Upper California. Both claims were duly set forth
in a petition seeking confirmation before the board of land
commissioners, and they were confirmed, with modifications -- the
lower grant to the extent of five leagues and the upper for six
leagues.
From this decree the parties appealed, and brought their cause
to the District Court held at San Francisco. That court, sitting in
the upper district, had no jurisdiction to reexamine the judgment
of the board as respected the five leagues confirmed in the
district of Lower California, and as to that tract, the appeal was
dismissed, and therefore that title stands confirmed.
There being cross-appeals, the question arises here whether the
upper grant should be confirmed for six leagues or for
Page 63 U. S. 289
eleven -- the grant of the governor calling for the latter
quantity.
The district court adjudged six leagues as the proper quantity,
and on this single point the cause comes before us, both parties
being satisfied with the decree below in all other respects.
The narrow question is had the Governor of California power in
1844 to grant gratuitously, for the purposes of tillage,
inhabitancy, and pasturage, more than eleven leagues of land to any
one person? Section 12 of the law of 1824 provides that it shall
not be permitted to
unite in one hand as property more
than one league of irrigable land, four leagues of farming land,
not irrigable, and six for stock raising.
Both titles of Hartnell were brought before the departmental
assembly. That body held the law to be that the governor could not
"unite in the same hand" more than eleven leagues, although it
might be in different tracts, and so reported to him.
The public
domain was the property of the Mexican
nation, and those who were enabled to displace that title, separate
portions of it from the public lands, and vest such portions into
individual proprietors by perfected titles could only do so in the
exercise of sovereign power, because the public title was a
sovereign right, and agents who assumed to exercise this authority
must show that they represented the nation. The governors of
California do not show that they did represent the nation so as to
conclusively bind it; to have this effect, the governor's
grant must have the concurrence of the departmental deputation. It
follows that the assembly was the controlling power, and could
reform or
nullify the governor's grant, and having
reformed it to the extent of five leagues in the case before us,
the claimant came in under the treaty of peace with Mexico having
no interest in these five leagues.
49 U. S. 8 How.
303-304.
We have no doubt that the departmental assembly, the board of
commissioners, and the district court, construed the law of 1824
(section 12) correctly, and order the decree below to be
Affirmed in all its parts.