Where none of the preliminary steps required by the act of 1824
and regulations of 1828 have been observed or shown, as there
required, previous to the grant, and no record of the title, as
also there required, and but slight evidence of possession, either
as to value or permanency, the proof of the genuineness of the
official signatures to the grant is not sufficient. Evidence under
the circumstances of grants in California should be given so as to
make the antedating of the grant irreconcilable with the weight of
the proof; otherwise there can be no protection against imposition
and fraud.
The record of the title must be shown, or its absence accounted
for to the satisfaction of the court.
The state of the title and a brief summary of the evidence are
given in the opinion of the Court.
Page 63 U. S. 401
MR. JUSTICE NELSON delivered the opinion of the Court.
The case involved a claim to sixteen square leagues of land
known by the name of "La Laguna de Lup-Yomi," situate north of
Sonoma, in the County of Napa, California. It was presented to the
board of land commissioners on behalf of the appellees, who derived
their title from the two brothers, Salvador and Juan Antonio
Vallejo, claiming to be the original grantees of the Mexican
government. The board rejected the claim, but, on appeal to the
district court and the production of further evidence, that court
affirmed it.
The first document produced is a petition of the two brothers,
S. & R. J. A. Vallejo, to the senior commandant general and
director of the colonization of the frontiers, for a grant of eight
leagues of land each, reciting that they were desirous of
establishing a ranch in the Laguna de Lup-Yomi, situate twenty
leagues north of this place, Sonoma, which tract is uncultivated
and in the power of a multitude of savage Indians who have
committed and are daily committing many depredations, and being
satisfied that the tract does not belong to any corporation or
individuals, they earnestly ask the grant, offering to domesticate
the Indians and convert them by gentle means, if possible, to a
better system of life. Salvador Vallejo adds that being in actual
service in quality of captain of cavalry, and not having received
his pay, he proposes to apply $2,500 out of his pay for his portion
of the
Page 63 U. S. 402
land. This petition was dated at Sonoma, October 11, 1838.
Under date of March 15, 1839, the senior commandant general, M.
G. Vallejo, a brother of the petitioners, accedes to their petition
so far as to permit them to occupy the tract, but, for the
accomplishment of the object they must hasten to ask a confirmation
from the departmental government, which will issue the customary
titles, and at the same time they must endeavor to reduce the wild
nature of the Indians, assuring them that the government wishes a
treaty and friendship with them.
The next document is a title, in form, granted by the governor,
Micheltorena, dated Monterey, 5 September, 1844. At the foot of the
grant is a memorandum as follows:
"Note has been made of this decree in the proper book, on folio
4."
"In the absence of the commandante,"
"FRANCIS. C. ARCE"
The signatures of M. G. Vallejo to the permit of occupation, and
of Micheltorena and F. C. Arce, the governor and acting secretary,
are genuine, if three witnesses are to be believed -- Castenada, W.
D. M. Howard, and Salvador Vallejo, one of the original grantees.
The proof of possession and occupation is slight and not entitled
to much consideration in passing upon the equity or justice of the
title or even upon its
bona fides.
This proof rests mainly upon the testimony of S. Vallejo. He was
examined twice on the subject -- once when the case was before the
board of commissioners and again when on appeal before the district
judge. In his first examination, he states that immediately after
permission was given to occupy the ranch (March, 1839), he placed
on the land about one thousand head of cattle, between three and
four hundred head of horses, and from eight hundred to one thousand
head of hogs; that he built a house on the land the same year, and
also corrals, and left an overseer and servants in charge of the
place.
Page 63 U. S. 403
In his second examination, he states that in the year 1842 or
1843 he placed cattle on the ranch, built a house and corrals, and
in the year 1843 or 1844 received a title for the land; that he
then lived on it, but was frequently absent visiting his house and
lot in Sonoma, and his other farms, but always left a mayor domo on
the ranch, and during this time he cultivated beans, corn,
pumpkins, watermelons &c. The last house he built on the place
was about the time the country was invaded by the Americans. That
during the time mentioned, he had on the place from 1,500 to 2,000
head of cattle, 500 to 600 head of horses, and from 1,500 to 2,000
head of hogs. He further states that most of his stock was
subsequently stolen and driven off by the Indians and emigrants.
This evidence is slightly corroborated by the testimony of
Castenada and Carillo.
From the numerous cases that have already been before us, as
well as from our own inquiries into the customs and usages of the
inhabitants of California, especially those engaged in the business
of raising cattle and other stock, this mode of occupation
furnishes very unsatisfactory evidence of possession and
cultivation of the land in the sense of the colonization laws of
Mexico. Any unappropriated portion of the public lands was open to
similar possession and occupation without objection from the public
authorities. Indeed, according to the laws of the Indies, the
pastures, mountains, and waters in the provinces were made common
to all the inhabitants, with liberty to establish their corrals and
herdsmen's huts thereon and freely to enjoy the use thereof, and a
penalty of five thousand ounces of gold was imposed on every person
who should interrupt this common right. 2 White's Recop. 56
There is also a fact stated by the witness Vallejo himself, that
is calculated to excite distrust as to the extent of the possession
and occupation, and for the purpose stated. He says that there were
constant revolutions among the Indians at the time; that it was
unsafe for families to live there, and that the alcalde at Sonoma
refused to deliver him judicial possession in 1845, on account of
the danger.
Page 63 U. S. 404
It is quite apparent also from the testimony of this witness
that the huts built for the herdsmen of the cattle were of a most
unsubstantial and temporary character. No possession of any kind is
shown since the cattle and other stock were carried off by the
Indians and emigrants. When that took place does not appear, but
doubtless as early as the first disturbances in the country in the
fore part of the year 1846.
The possession and occupation, therefore, even in the loose and
general way stated, was only for a comparatively short time.
We have said that the signatures of the officers to the
documentary evidence of the title are genuine if we can believe the
witnesses -- Castenada, How. and Vallejo, but as all of these
officials were living after the United States had taken possession
of the country during the war and even after the cession by Mexico,
and, with the exception of the governor, resided in California,
these signatures may be genuine and still the title invalid. It was
practicable to have made the grant in form genuine, but
antedated.
The permit to take possession of the tract, in connection with
the short and unsubstantial character of the possession, is not of
much importance in making out the claim. Vallejo had no power to
dispose of the public lands. We do not understand that his
permission to occupy, as director of colonization on the frontiers,
laid the governor or Mexican government under any obligations to
grant the title. If followed by valuable and permanent
improvements, considerations might arise in favor of a claimant
that should influence a government when called upon to grant the
property to another. We think, therefore, that the claim rests
chiefly, if not entirely, upon the grant of the title by the
governor of the 4th September, 1844.
This grant stands alone. None of the usual preliminary steps
prescribed by the regulations of 1828, such as the petition,
marginal reference for a report as to the situation and condition
of the land, report of the proper officers and minute of
concession, was observed. These, with satisfactory proof of the
signatures to the papers, give some character to the grant and
Page 63 U. S. 405
tend to the establishment of its genuineness. Even the permit of
Vallejo is not noticed by the governor, nor any present occupation
of the premises by the grantees.
So far, therefore, as respects the title or even any rightful
claim to the tract, it depends mainly upon proof of the signatures
of Micheltorena and of F. C. Arce, the acting secretary. There is
no record of the title in the proper book shown in the case nor
exists in fact, as it is understood this book of records exists for
the years 1844, 1845, and no record is there found. The memorandum,
therefore, at the foot of the grant, by Arce, the secretary, "Note
has been made of this decree in the proper book, on folio 4," is
untrue. Nor has there been found any approval of the grant by the
departmental assembly, for those records are extant, as found in
the Mexican archives. These archives are public documents which the
court has a right to consult, even if no made formal proof in the
case. The absence of any record evidence is remarkable, if the
title is genuine, as one of the grantees, Juan Antonio Vallejo,
resided at the time in Monterey, where these records were kept and
where all the formalities of a regular Mexican grant might readily
have been complied with. The parties also were men of more than
ordinary intelligence, and belong to one of the most influential
Mexican families of the territory, and doubtless well understood
the regulations concerning grants of the public domain.
The nonproduction of this record evidence of the title, under
the circumstances, is calculated to excite well grounded suspicions
as to its validity, and throws upon the claimant the burden of
producing the fullest proof of which the party is capable of the
genuineness of the grant. We do not say that the absence of the
record evidence is of itself necessarily fatal to the proof of the
title, but it should be produced or its absence accounted for to
the satisfaction of the court.
We have already said that the genuineness of the official
signatures to the paper title might be established and yet the
title forged, and stated our reasons. Proof of the genuineness of
these alone can never be regarded as satisfactory. It must be
carried farther by the claimant. The record proof is, generally
Page 63 U. S. 406
speaking, the highest. Possession and occupation of some
duration, permanency, and value are next entitled to weight.
At least satisfactory evidence should be required, under the
circumstances in which most of these Mexican grants were made, as
to make the antedating of any given grant irreconcilable with the
proof; otherwise there can be no protection against imposition and
fraud in these cases.
The decree of the court below reversed and the case remanded
for further evidence and examination.