De Haro v. United States,
72 U.S. 599 (1866)

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U.S. Supreme Court

De Haro v. United States, 72 U.S. 5 Wall. 599 599 (1866)

De Haro v. United States

72 U.S. (5 Wall.) 599


1. In 1844, persons in California petitioned the Mexican governor of that province for a grant of certain described land, situated in the vicinity of the Mission of San Francisco. The petition was referred to the secretary of state, who reported that the land was unoccupied, but that inasmuch as "common lands" (ejidos) were to be assigned to the said mission, he was of opinion that in the meanwhile the petitioners might occupy the land solicited under a provisional license. The governor thereupon made a decree declaring the petitioners "empowered to occupy provisionally" the land, and directing a proper document to be issued to them and a registry made of it. An instrument was accordingly issued to the petitioners, signed by the governor and attested by the secretary of state, by which the governor, in virtue of the authority vested in him and in the name of the Mexican nation, granted "to them the occupation" of the land, subject to the measurement to be made of common lands for the establishment of San Francisco, with conditions against alienation, and for the occupation of the land within a year, and for forfeiture in case the conditions were not complied with. On this case

Held that the decree of the governor constituted only a naked license to occupy the land provisionally, and that the instrument issued pursuant to the decree did not pass any title to or interest in the land; that this license was a personal privilege of the parties, and upon their death did not extend to their heirs; that a claim for land resting upon a license of this character is not entitled to confirmation under the Act of Congress of March 3, 1851.

Page 72 U. S. 600

2. The term "titulo," in the Spanish language, only means the instrument which is given as evidence of the right, interest, or estate conferred; it does not indicate the measure of such right, interest, or estate; hence it applies equally to papers which convey title in the usual acceptation of the term, and to those which confer a mere right of occupancy.

Appeal from the District Court for the Northern District of California in a claim for land, now of immense value, originally presented to the board of land commissioners established by the Act of March 3, 1851. The case was thus:

In April, 1844, Ramon and Francisco de Haro presented a petition to the Mexican governor of the province of California for a grant of a tract of land, called the "Potrero of San Francisco," situated near the mission of that name. The petitioners were minors, and their petition was accompanied with the consent of their father that they might present it, and also his application to the local alcalde for information as to the condition of the land solicited, and the alcalde's reply thereto. The petition and accompanying papers were referred to the secretary of state for his report thereon. The secretary reported that the land was unoccupied, but, for reasons stated, he was of opinion that a provisional license to occupy it should be given to the petitioners. A decree was accordingly made pursuant to this suggestion, and was followed by the issue and delivery to the petitioners of a formal document ceding to them the occupation provisionally, subject to certain conditions. The following is a translation of the several papers mentioned:

"[Petition for the Grant]"


"We, Francisco de Haro and Ramon de Haro, in the name of our family, Mexican citizens by birth and residents of the ex-Mission of San Francisco de Asis, represent to your Excellency with due submission that inasmuch as we have to remove the share of cattle appertaining to our deceased mother out of the rancho of the deceased Jose Antonio Sanchez, and as we have in view to tame them, we entreat your Excellency to grant to us in the exercise of your Excellency's powers a small parcel of land called Potrero de San Francisco &c., because there is no

Page 72 U. S. 601

competent person to do it, according to the annexed sketch that we submit to your Excellency; and as said parcel of land can be enclosed, we intend to place on it the tamed cattle, because of the small extent of the location occupied at present by the cattle of our father, who has given us due permission to petition, as we are under the parental power and control. Therefore we entreat your Excellency to grant us this benefit, whereby we shall receive favor and grace. We swear not to proceed moved by malice &c. This memorial has not been written on paper of the corresponding stamp, there not being any here."



"SAN FRANCISCO, April 12, 1844"

"[Consent of the Father of the Petitioners]"

"I, the undersigned, grant by the present document, to my sons, Francisco and Ramon de Haro, the corresponding assent enabling them (because they are minors) to solicit the Superior Government of the Department the grant of the Potrero of the ex-Mission of San Francisco de Asis, at present lying unoccupied, and represented in the sketch accompanying the petition."

"The said Potrero being intended to be (if it should please the Superior authority to grant it) for the benefit of their other brothers as well as themselves, and to answer due ends I give them this document in the aforementioned ex-Mission of San Francisco de Asis, on the 12th day of April, 1844."


"[Application of the Father of the Petitioners to the local Alcalde"

"for Information as to the Condition of the land solicited]"


"I, Francisco de Haro, a resident of this jurisdiction, in the name of my sons, Francisco and Ramon, formally appear and say that my sons aforementioned have received my assent to solicit of the Superior Government of the Department the grant of the Potrero that lies opposite the ex-Mission of San Francisco de Asis, which stands unoccupied, and the enclosures of which

Page 72 U. S. 602

are thrown down and lying on the ground, and inasmuch as I wish to remove the obstacles that may obstruct the speedy dispatch of said petition, and since it must be referred thence to this place for report and information and I want to obviate this delay, I therefore apply to you, in order that you be pleased to report as you may think convenient, in the subject of my solicitation."

"Therefore I entreat you to proceed in this matter according to right, and to direct this memorial, written on common paper, there not being here any of the corresponding stamped. Thus I swear &c."


"SAN FRANCISCO, April 13, 1844"

"[Reply of the local Alcalde to the Application for Information]"

"SAN FRANCISCO DE ASIS, April 13, 1844"

"In consideration of the reasons presented by the party who solicits, I proceed to report about the location in request, declaring that up to this day there are no claimants of any kind, and it is not occupied by any community or private individual."


"[Order of Governor referring Petition and accompanying Papers to the"

"Secretary of state to report thereon]"

"MONTEREY, April 29, 1844"

"Let the secretary of state report on the same and take the necessary information."


"[The Report of the Secretary]"

"MONTEREY, April 29, 1844"


"The Mission of San Francisco no longer holds property of any kind, and consequently the Potrero (or enclosed place for keeping horses) in request is lying unoccupied, as the soliciting parties show by means of a report proceeding from the respective judge, and inasmuch as there are to be assigned to said establishment, its

Page 72 U. S. 603

corporation or common land (ejidos [Footnote 1]), I am of opinion that in the meanwhile the parties might occupy the plot of land, by virtue of a provisional license of your Excellency, because no prejudice is caused thereby to the community, to any private individual. Your Excellency's own decision will doubtless be the most proper one."


"MONTEREY, April 30, 1844"

"In conformity"


"[The Decree of the Governor upon the Petition and Secretary's Report]"

"MONTEREY, April 30, 1844"

"After examining the petition at the head of this proceeding, the preceding reports, and whatever else was thought to the purpose, in conformity with the laws and regulations on the subject, I declare Francisco and Ramon de Haro empowered to occupy provisionally the piece of land called Potrero de San Francisco, to the extent of half a square league, the boundaries to be the extremities of the mouth of the Potrero, and the range of hillocks or highlands environing it. Let the corresponding patent be issued; let it be duly entered, and let this information be communicated to the person in charge of said establishment."

"[The Document issued by the Governor, and delivered to the petitioners"

"pursuant to the above decree]"


"Whereas, Francisco and Ramon de Haro have solicited the grant of the Potrero de San Francisco, so called, from the mouth of the estuaries, together with the high land surrounding it, all the necessary investigations having been made according as the laws and regulations in the matter prescribed, by virtue of the authority in me vested, I have thought proper, in the name of the Mexican nation, to grant to them the occupation of the aforementioned

Page 72 U. S. 604

Potrero, subject to the mensuration to be made of the corporation or common lands (ejidos) for the establishment of San Francisco, and under the following conditions: [Footnote 2]"

"1st. They shall have no power, under any consideration, to sell or alienate it to the detriment of any of the proprietors of the establishment of San Francisco."

"2d. They shall not obstruct the paths, roads, and servitudes, using it for culture and cattle they intend to introduce on it, but within a year at the most it must be occupied."

"3d. The parcel of land to which reference is made is of half a square league, and if they should transgress any of these conditions, they shall lose their right to this provisional grant, which is delivered to the parties concerned for their security, and other ends."

"Given in Monterey on the first day of May, 1844."



Under the last document, the De Haros went into possession of the land and occupied if for the pasturage of horses and cattle until their death, which occurred in May, 1846. [Footnote 3] The land was enclosed on three sides by water, and a wall had been erected by the priests of the mission on the fourth side. This wall had gone to ruin, and the De Haros, after obtaining their concession, repaired it. The land was not a fertile tract, and was only fit for pasturage. The father of the De Haros succeeded to whatever interest they possessed in the property at their death, and he occupied the land afterwards in a similar manner -- that is, for the pasturage of horses and cattle -- until his death, which took place in 1849. His successors in interest were his children, six girls and one son, all minors at the time. From these children the property passed into the hands of numerous American citizens, for whose benefit, after our conquest, the claim was

Page 72 U. S. 605

presented for confirmation to the board of land commissioners, established by the Act of March, 1851, to settle private land claims in California.

When the claim was pending before the land commissioners, two papers additional to those set out at pages <|72 U.S. 600|>600-604 were produced and given in evidence, one of them purporting to be a grant in fee simple of the land to the De Haros, signed by Governor Micheltorena, bearing date May 24, 1844, and the other purporting to be a grant of a similar nature signed by the same officer September 18, 1844. The signature to both was genuine, but it was added after the cession of the country to the United States. The instruments were antedated, but by whom they were prepared was not shown.

The commission confirmed the claim, rejecting the paper of May 24, 1844, as a forgery or antedated, but relying upon the paper of September 18, 1844, though not without grave doubts as to its genuineness.

On appeal to the district court, additional proof as to the second paper was taken and its real character exposed, and it, as well as the first paper, was formally abandoned by the counsel of the claimants, and the claim for confirmation was based solely on the provisional license and the proofs showing an occupation under it.

The clause which usually appears in Mexican grants of land in California, namely, that the party shall lose his right to the land in case he violates the conditions attached, was altered in the document of May 1, 1844, issued to the De Haros by the governor, to the words, "he shall lose his right to this provisional concession" in case he violates the conditions.

The document was mentioned in the list of grants made by the secretary of state, Jimeno, known as Jimeno's Index, and is noted in the record Toma de Razon. The entry in this last book was as follows:

"226. Don Francisco and Ramon Haro, on the 1st May, 1844. "

Page 72 U. S. 606

"Title (titulo) delivered to them of the tract named El Potrero, in extent of one half league square."

The district court rejected the claim, holding that the right conferred by the document in question was a mere license to occupy the premises until the ejidos, or common lands, should be measured.

In distinguishing the case from some others cited, the court in its opinion said:

"In this case the permission is given to occupy only until an assignment of the land to the pueblo is effected. The governor not only indicates no willingness or intention to grant, but, in obedience to Jimeno's suggestion, he refuses to grant, and ex industria limits the concession to the permission to occupy land not then used by the Mission."

From the decree of that court the case was now here on the appeal of the claimants.

Page 72 U. S. 622

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