1. Grants of the public domain of Mexico, made by governors of
the Department of California, were of three kinds: 1st, grants by
specific boundaries, where the donee was entitled to the entire
tract described; 2d, grants by quantity, as of one or more leagues
situated at some designated place, or within a larger tract
described by outboundaries, where the donee was entitled out of the
general tract only to the quantity specified; and 3d, grants of
places by name, where the donee was entitled to the tract named
according to the limits as shown by its settlement and possession
or other competent evidence.
2. Grants of the second class -- those by quantity -- passed
from the government to the grantees, upon their execution, the
right to the quantity of land specified therein, to be afterwards
laid off by official authority at the place or within the larger
tract designated.
3. Under Mexico, the measurement and segregation from the public
domain of the quantity specified in this class of grants could only
be made by the officers of the government. A measurement by the
grantee was inoperative for any purpose. Although a general
possession of the
Page 77 U. S. 225
land ceded was permitted in California before the official
measurement, the grantee acquired by such possession no absolute
right to the tract occupied, or any interest which could control
the action of the officers of the government in the segregation of
the land.
4. Although the regulations of 1828, which were adopted to carry
into effect the colonization law of 1824, provided that a map of
the land solicited should accompany the petition for a grant, a
compliance with the provision was not exacted in all cases. The
governors exercised a discretionary power of dispensing with it
under special circumstances. No motive existed for insisting upon
its presentation when the information which it was designed to
impart was already in the public archives open to the inspection of
the governor, and such information existed there in the present
case.
5. Although the regulations provided that the governor, upon
receiving a petition for land, should proceed to obtain the
necessary information as to the qualifications of the petitioner
and the character of the land, they did not prescribe any
particular mode by which this information should be acquired. It
might have been obtained by the governor from his own
investigations, or he might, as stated in the regulations, if that
course were preferred, consult the appropriate municipal authority,
which was that of the district, whether any objection existed to
making the grant. Formal reference to the local magistrate, and a
report from him, were not essential to give the information
required, although this course was usually adopted.
6. A clause in the grant in this case subjecting it to the
approval of the departmental assembly, did not prevent the title
from passing to the grantees upon the execution of the instrument.
Such approval was not
a condition precedent to the vesting of the title. According to
the regulations of 1828, the authority to make grants of land in
California was lodged solely with the governor. It was not shared
by him with the assembly. That body only possessed the power to
approve or disapprove of grants made by him. Until such approval,
the estate granted was subject to be defeated. With such approval,
the grant became, as it was termed in the regulations,
"definitively valid" -- that is it ceased to be defeasible, and the
estate was no longer liable to be divested except by proceedings
for breach of its other conditions.
7. It was the duty of the governor, and not of the grantee, to
submit to the assembly grants issued by him for its approbation.
His neglect in this respect suspended the definitive validity, as
it was termed, of the grants -- that is, it prolonged the liability
of the estate to be defeated by the action of the assembly, and of
the supreme government thereon, to which the matter was referred in
case the approval of the assembly was not obtained, and no other
consequence followed. His neglect was not permitted to operate to
divest the grantees of the estate already vested in them.
8. In passing upon claims under Mexican grants in California,
the question is what right did the grantees acquire in the land
from the Mexican
Page 77 U. S. 225
authorities? This Court cannot inquire into any acts or
omissions by them since those authorities were displaced. It is not
authorized to pronounce a forfeiture for anything done or anything
omitted by them since that period.
9. The political department of the government having designated
the 7th of July, 1846, as the period when the conquest of
California was completed, the judiciary follows the action of the
political department. On that date, therefore, the authority and
jurisdiction of Mexican officials in California are considered as
having terminated.
10. The grant in this case was for the surplus land remaining in
two places after satisfying out of those places two previous grants
to other parties, including other lands within the jurisdiction of
the same pueblo to make up the amount of nine leagues, and to it
were annexed conditions, the second of which provided that the
grantees should solicit the proper judge to give them juridical
possession of the land; and it was here objected to the
confirmation of the claim that the grantees had forfeited their
rights under the grant by not applying for such possession and
never entering upon the land. The objection was answered 1st by the
fact that between the date of the grant and the displacement of the
authority of Mexican officials, only sixty-one days had elapsed,
and that within a period so limited juridical possession was seldom
delivered after the issue of a grant; 2d, by the fact, that it was
impossible for the magistrate to deliver such possession until the
previous grants in the same general locality had been surveyed and
severed from the public domain, and no such survey and severance
were had, nor was any action ever taken by the previous grantees to
have the quantity granted to them segregated previous to the
conquest; and the grantees in this case could not of themselves
have lawfully intruded upon the possessions of the previous
grantees and undertaken themselves to determine what part of the
general tract should be set apart to those previous grantees and
appropriate the balance as the surplus to which they were entitled;
3d, by the fact that mere neglect to comply with the condition,
even if unreasonably prolonged, did not of itself work a forfeiture
of the grantees right under the Mexican law, but only left the land
open to denouncement by other parties. Some formal and regular
proceedings were required to effect a divestiture of a grantee's
interest under the Mexican law, and these had their inception in
what is termed a denouncement by a party desirous of obtaining the
land. An investigation then followed whether or not the condition
had been complied with or so disregarded as to justify a decree of
forfeiture. Without such inquisition and decree, the title did not
revert to the government, nor was the land subject to be
regranted.
11. The interest which passed by the grant in this case, whether
it be regarded as a legal title, imperfect in its character and to
be perfected by a subsequent official survey and segregation of the
quantity designated, or as a mere equitable or inchoate title,
constituted property which the United States were bound to protect
by the stipulations of
Page 77 U. S. 227
the treaty of cession. By the term "property," as applied to
lands, all titles are embraced, legal or equitable, perfect or
imperfect.
This case was brought by the appellants, Hornsby and Roland, for
the confirmation of a claim made by them under a Mexican grant for
nine square leagues of land, situated in California, under the Act
of Congress of March 3, 1851, to ascertain and settle private land
claims in that state. [
Footnote
1] The grant was issued to Luis Arenas (whose interest had
since passed to the claimant Hornsby) and Jose Roland, May 6, 1846,
by Pio Pico, then governor of the Department of California.
Some years before the issue of this grant, a grant of two square
leagues in the place called Las Animas had been made to one Thomas
Brown, from whom the property by mesne conveyances had passed to a
certain Charles Weber, and a grant of about the same quantity in
the place called Canada de Pala had been made to Jose Bernal and
others. For the surplus land remaining in these places after
satisfying the previous grants, including lands of the Cerro
Colorado, within the jurisdiction of the same pueblo, to make up
the amount of nine leagues, Arenas and Roland, on the 5th of May,
1846, presented their petition to the governor. No map of the land
accompanied this petition, but the parties in the petition offered
to present a map to the governor at a convenient time.
On the margin of the petition, the governor made an order that a
decree of concession be issued and the title (the grant) be
delivered to the parties for their protection. On the following
day, the 6th, the governor made a full and formal decree of
concession in which he stated that in the exercise of the powers
with which he was invested by the supreme government, and in the
name of the Mexican nation, he declared the petitioners owners of
the land so located and directed that the title (titulo -- the
grant) be issued which would secure to them the property.
Page 77 U. S. 228
The formal grant then issued. In it the governor recited the
petition and then stated that the "necessary steps having been
taken, and inquiries made," he had, by a decree of that day in the
exercise of the powers with which he was invested by the supreme
government in the name of the Mexican nation, declared, and did
then declare the petitioners "owners in full property" of the land,
describing it as in the petition, in conformity with the law of the
18th of August, 1824, and the regulations of November 21, 1828,
"subject to the approval of the departmental assembly, and under
the following conditions:"
"1st. They (the grantees) may enclose it without injuring the
passes, roads, and servitudes, and may enjoy it fully and
exclusively, appropriating it to such use as may suit them."
"2d. They shall solicit the proper judge to give them juridical
possession by virtue of this decree, and he shall mark the
boundaries with the proper landmarks."
"3d. The land hereby granted is nine leagues of the largest
size, and is situated in the surplus or vacant lands of the ranchos
of Don Carlos Weber and Don Jose de Jesus Bernal, including the
lands of the Cerro Colorado towards the valley. The judge who shall
give the possession shall have it measured in conformity to law in
view of the map which will be presented by the parties
interested."
Traced copies of the petition, the marginal order, the decree of
concession, and of the draft of the grant, from the archives of the
Department of California, in the custody of the Surveyor General of
the United States for California, and the original grant issued to
the petitioners, were produced before the board of land
commissioners and in the district court. No question appears to
have been made in either tribunal as to their genuineness. The
grant issued bore the signatures of the governor, Pio Pico, and of
the acting secretary of state at the time, Moreno. The genuineness
of these signatures was proved by a witness produced by the
claimants before the commissioners, but they rejected the claim on
the ground that there was no evidence that the grant was ever
approved by the departmental assembly or
Page 77 U. S. 229
that juridical possession was ever given, or that the grantees
were ever in possession of the land or occupied it in any manner,
and that the description of the land was too vague and indefinite
to enable the commissioners to describe it with any degree of
certainty. The commissioners, without making the fact a distinct
ground of rejection, also observed, in their opinion, that the
governor, the day following the receipt of the petition, had,
"without, so far as appears from the record, making any
inquiries or investigations in relation to the matter, entered a
decree of concession and directed the title to be issued and
delivered to the interested parties."
From the decree of the board of land commissioners an appeal was
taken to the district court. Whilst the case was pending in that
court, the parties entered into a stipulation that certain
depositions of Pio Pico, of Moreno, and of Rufus C. Hopkins, taken
in another case in which Roland was also a claimant, might be used
in this case. In his deposition thus used, Pico testified to the
genuineness of his signature to the grant in this case and also
that it was customary to take
informes (that is, to have
an official report upon the subject) as to the qualifications of
applicants and upon the land solicited before making a concession,
but that it was not indispensable and that it was not unusual for a
petition to be signed, a marginal order and a decree of concession
made, and a title issued on the same day; that often a number of
concessions were made on the same day; and in the assembly a number
of concessions were often confirmed on the same day.
Moreno, in his deposition, also testified to the genuineness of
his own signature and that of Pico to the grant in this case.
Hopkins, the keeper of the Mexican archives in California, in
his deposition testified that he had made the archives of the
former Spanish and Mexican governments in California his special
study for the then last preceding seven years; that there was no
book of record in the archives showing petitions presented for
land, and grants made
with maps of
Page 77 U. S. 230
the lands granted, as required to be kept by the
regulations of November, 1828, and that there was no trace whatever
amongst the archives of the existence of any such book at any
former time; that the nearest approach to any such record were the
espedientes on file in the archives; that these espedientes were
the various proceedings in reference to individual grants, written
upon sheets of paper and stitched together, and, when concluded,
endorsed and numbered by the secretary, and filed in the
archives.
In answer to the question as to what evidence, if there was no
record, did the archives furnish of the fact of the issue of any
grant whatever since 1828, the witness stated,
"That the only evidences to be found in the archives of the
issuance of grants since 1828 are 1st, the espedientes already
referred to; 2d, a book in which titles (the grants) are recorded,
which were issued in 1833, '34, and '35; 3d, the index known as the
'Jemino Index,' embracing grants made from 1833 to 1844, inclusive;
4th, a Toma de Razon, or registry of grants issued in 1844, '45;
5th, an index known as the 'Hartnell Index;' 6th, Toma de Razon,
kept by prefects in 1843; 7th, journals of the departmental
assembly from 1829 to 1846; 8th, official correspondence in which
grants are referred to; 9th, some loose maps and borradors in
reference to grants."
He continued: "The record I have referred to of 1833 to 1835
contains a copy of the entire grant or titulo --
without the
previous proceedings or maps," and with respect to grants
issued in 1846, he testified that
"the only evidence the archives furnish of grants made in 1846
are the espedientes referred to, journals of the departmental
assembly, the Hartnell index, and official correspondence,
borradors &c."
The District Attorney of the United States admitted in writing
in the district court that the grant in this case was issued by
Governor Pico on the 6th of May 1846; and that the extent of the
surplus lands for which it was issued had not then been
ascertained.
The district court affirmed the decree of the board of land
commissioners and rejected the claim, but the district
Page 77 U. S. 231
judge states in his opinion below, that the genuineness of the
papers produced from the archives and of the title produced by the
claimants was not disputed by the counsel of the United States. The
rejection of the claim was placed on the ground that no
investigation was had by the governor as to the condition of the
land or the qualification of the parties, that the whole proceeding
was commenced and consummated within two days, and that no evidence
was offered to show that either of the grantees ever settled or
attempted to settle on the land, or that any surplus lands existed
for which the grant called.
Of the regulations for the colonization of the territories of
Mexico, adopted November 21, 1828, the following are those which
bear upon the questions raised in this case. [
Footnote 2]
"1st. The governors (
gefes politicos) of the
territories are authorized (in compliance with the law of the
General Congress of the 18th of August, 1824, and under the
conditions hereafter specified) to grant vacant lands, in their
respective territories, to such contractors
(empressarios), families, or private persons, whether
Mexicans or foreigners, who may ask for them, for the purpose of
cultivating and inhabiting them."
"2d. Every person soliciting lands, whether he be an
empressario, head of a family, or private person, shall
address to the governor of the respective territory a petition,
expressing his name, country, profession, the number, description,
religion, and other circumstances of the families, or persons, with
whom he wishes to colonize, describing as distinctly as possible,
by means of a map, the land asked for."
"3d. The governor shall proceed immediately
to obtain the
necessary information, whether the petition embraces the
requisite conditions, required by said law of the 18th of August,
both as regards the land and the candidate, in order that the
petitioner may at once be attended to,
or, if it be preferred,
the respective municipal authority may be consulted whether there
be any objection to making the grant or not."
"4th. This being done, the governor will accede or not to
such
Page 77 U. S. 232
petition, in exact conformity to the laws on the subject, and
especially to the before mentioned one of the 18th of August,
1824."
"5th. The grants made to families, or private persons, shall not
be held to be
definitively valid without the previous
consent of the territorial deputation, to which end the respective
documents (espedientes) shall be forwarded to it."
"6th.
When the governor shall not obtain the approbation of
the territorial deputation, he shall report to the supreme
government, forwarding the necessary documents for its
decision."
"7th. The grants made to
empressarios, for them to
colonize with many families, shall not be held to be definitively
valid, until the approval of the supreme government be obtained, to
which the necessary documents must be forwarded along with the
report of the territorial deputation."
"8th. 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 said grant is made
in exact conformity with the provisions of the laws, in virtue
whereof possession shall be given."
"9th.
The necessary record shall be kept in a book destined
for the purpose, of all the petitions presented and grants made,
with the maps of the lands granted, and the circumstantial
report shall be forwarded quarterly to the supreme government."
MR. JUSTICE FIELD delivered the opinion of the Court.
As we have had occasion to observe in several instances,
[
Footnote 3] grants of the
public domain of Mexico, made by governors of the department of
California, were of three kinds: 1st, grants by specific
boundaries, where the donee was entitled to the entire tract
described; 2d, grants by quantity, as of one or more leagues
situated at some designated place, or within a larger tract
described by outboundaries, where the donee was entitled out of the
general tract only to the quantity
Page 77 U. S. 233
specified; and 3d, grants of places by name, where the donee was
entitled to the tract named according to the limits, as shown by
its settlement and possession, or other competent evidence.
The greater number of the grants which have come before this
Court for examination have belonged to the second class. They have
usually designated the land ceded by the general name of the valley
or locality where situated, with a clause annexed that the
concession was limited to the specific quantity mentioned, and that
the magistrate of the vicinage, of whom possession was to be
solicited, should cause the same to be surveyed, and that any
surplus existing should be reserved for the use of the nation.
When the first grant of this kind was presented for the
consideration of this Court in the
Fremont case, [
Footnote 4] which was for ten leagues
within a tract of much greater extent, it was objected that the
grant was void for uncertainty of description, and that no interest
passed to the grantee until the quantity was surveyed and severed
by known boundaries from the public domain; but the court held the
objection untenable and that, as between the government and the
grantee, the latter had a vested interest in the quantity of land
mentioned. "The right to so much land," said the Chief Justice in
delivering the opinion of the court, "to be afterwards laid off by
official authority in the territory described, passed from the
government to him by the execution of the instrument granting it."
And in support of the principle asserted, the court cited the case
of
Rutherford v. Greene's Heirs, reported in 2d Wheat.
[
Footnote 5] which arose upon
an act of the State of North Carolina, passed in 1782, providing
that twenty-five thousand acres of land should be allotted and
given to General Greene and his heirs, within the bounds of a tract
reserved for the use of the army, to be laid off by commissioners
appointed for that purpose. The commissioners, in pursuance of the
act, allotted the twenty-five thousand acres, and caused the
quantity to be surveyed
Page 77 U. S. 234
off, and the survey to be returned to the proper office, and the
question upon which the case turned related to the validity of the
title of General Greene, and the date at which it commenced. The
court held that the general gift of twenty-five thousand acres
lying in the territory reserved, became by the survey a particular
gift of the quantity within the survey, and concluded an elaborate
examination of the title by stating, that it was the clear and
unanimous opinion of the court, that the act of 1782 vested a title
in General Greene to the twenty-five thousand acres to be laid off
within the boundaries designated, and that the survey, made in
pursuance of the act, gave precision to that title, and attached it
to the land surveyed.
And this Court, in deciding the
Fremont case, observed
in reference to this case of
Rutherford v. Greene's Heirs
that
"It recognizes as a general principle of justice and municipal
law that such a grant for a certain quantity of land by the
governments, to be afterwards surveyed and laid off within a
certain territory, vests in the grantee a present and immediate
interest. In the language of the court, the general gift becomes a
particular gift when the survey is made, and when this doctrine has
been asserted in this Court, upon the general principles which
courts of justice apply to such grants from the public to an
individual, good faith requires that the same doctrine should be
applied to grants made by the Mexican government where a
controversy arises between the United States and the Mexican
grantee. [
Footnote 6]"
Under Mexico, the measurement and segregation from the public
domain of the quantity specified in this class of grants could only
be made by the officers of the government. A measurement by the
grantee was inoperative for any purpose. Although a general
possession of the land ceded was permitted in California before the
official measurement, the grantee acquired by such possession no
absolute right to the tract occupied or any interest which could
control the action of the officers of the government in the
segregation of the
Page 77 U. S. 235
land. A private survey was as ineffectual under the former
government as under the present government. The right which the
former government reserved to itself over the survey passed, with
all other public rights, to the United States upon the cession of
the country, and is now to be exercised in pursuance of their laws.
[
Footnote 7]
Now if we consider the present case in the light of these views,
we shall find little difficulty in its disposition. The grant here,
like the one in the
Fremont case, is a grant by quantity.
It was made under the same law and regulations, and like that, was
subject to the approval of the departmental assembly, and has
certain conditions annexed. It was issued to Luis Arenas and John
Roland on the sixth of May, 1846, by the then Governor of
California. A petition for the land had been presented by them to
him on the fifth of May, and the same day he made an order on its
margin directing a decree of concession, and the issue of a grant
to the parties. On the subsequent day, the sixth, a formal decree
was signed by him declaring the petitioners owners of the land and
directing a grant to be issued which would secure to them the
property. The grant followed. The petition, the marginal order, the
decree of concession, and the draft of the grant are in the Mexican
archives now in the custody of the Surveyor General of the United
States for California. Traced copies of these instruments, and the
original grant issued, were produced by the claimants before the
land commissioners and in the district court. Their genuineness and
authenticity were not disputed in either tribunal. The issue of the
grant by the governor was admitted in the written stipulation of
the counsel of the government.
Several years previous to the issue of this grant to Roland and
Arenas, a grant of two square leagues in the place called Las
Animas had been made to one Thomas Brown, from whom the property by
various mesne conveyances had passed to one Charles Weber, and a
grant of about the same quantity in the place called Canada de Pala
had been
Page 77 U. S. 236
made to Jose Bernal and others. For the surplus land remaining
in these places, after satisfying the previous grants, including
lands of the Cerro Colorado within the jurisdiction of the same
pueblo, to make up the amount of nine leagues the petition of
Roland and Arenas was presented, and the grant to them was issued.
No map of the land solicited accompanied the petition, but the
petitioners offered to furnish a map to the governor at a
convenient time -- that is, whenever there might be occasion for
its use.
The grant, after reciting the petition and that the necessary
steps had been taken and inquiries made, proceeds to state that the
governor, by a decree of that day, in the exercise of the powers
with which he was invested by the supreme government and in the
name of the Mexican nation, had declared and did declare the
parties owners in full property of the land solicited, describing
it as in the petition, in conformity with the law of 1824 and the
regulations of 1828, subject to the approval of the departmental
assembly and certain conditions annexed.
The instrument purports on its face to transfer a full title to
the property solicited. If valid when issued, it passed, according
to the decision in the
Fremont case, to the grantees a
present and immediate interest in the quantity of land specified,
to be subsequently laid off by official authority. And this brings
us to the questions whether there was anything in the action of the
governor or of the grantees previous to its issue which impaired
its validity, and if the instrument was valid when issued, whether
there was any such subsequent disregard of its conditions as to
work its forfeiture.
That the governor, under Mexico, was authorized to make grants
of land in the Department of California is not questioned, and that
the instrument produced in this case is genuine and was issued by
him is admitted. But it is said that the grantees did not accompany
their petition with a map of the land solicited, and that the
governor did not make any inquiries as to the qualifications of the
petitioners and the condition of the land, as required by the
regulations
Page 77 U. S. 237
of 1828, which were adopted to carry into effect the
colonization law of 1824.
It is true that the regulations provided that a map of the land
solicited should accompany the petition, but a compliance with the
provision was not exacted in all cases. The governors exercised a
discretionary power of dispensing with it under special
circumstances. No motive existed for insisting upon its
presentation when the information which it was designed to impart
was already in the public archives open to the inspection of the
governor, and such information existed there in the present case.
At any rate, the governor was satisfied with the offer of the
petitioners to furnish a map at the proper time subsequently. As
was said in the
Fremont case in answer to an objection of
a similar character,
"the court could not, without doing injustice to individuals,
give to the Mexican laws a more narrow and strict construction than
they received from the Mexican authorities who were entrusted with
their execution. [
Footnote
8]"
It is also true that the regulations provided that the governor,
upon receiving a petition for land, should proceed to obtain the
necessary information as to the qualifications of the petitioner
and the character of the land. But they did not prescribe any
particular mode by which this information should be acquired. It
might have been obtained by the governor from his own
investigations, or he might, as stated in the regulations, if that
course were preferred, consult the appropriate municipal authority,
which was that of the district, whether any objection existed to
making the grant. In some instances, as in the case of Sutter, the
character of the petitioner and of the land solicited were matters
of general notoriety. [
Footnote
9] The objection appears to proceed upon the idea that a formal
reference to the local magistrate and a report from him were
essential to give the information required. This course was usually
adopted, but it was not
Page 77 U. S. 238
essential. The grant in this case recites that the necessary
steps had been taken and inquiries made, and something more than
mere surmises at this day are necessary to show that the recital is
false. [
Footnote 10]
There is nothing in these objections which touches the validity
of the instrument at the time it issued. And the clause subjecting
the grant to the approval of the departmental assembly did not
prevent the title from passing to the grantees upon the execution
of the instrument. Such approval was not a condition precedent to
the vesting of the title. According to the regulations of 1828, the
authority to make grants of land in California was lodged solely
with the governor. It was not shared by him with the assembly. That
body only possessed the power to approve or disapprove of grants
made by him. Until such approval, the estate granted was subject to
be defeated. With such approval the grant became, as it was termed
in the regulations, "definitively valid" -- that is, it ceased to
be defeasible, and the estate was no longer liable to be divested
except by proceedings for breach of its other conditions.
Besides, it was the duty of the governor, and not of the
grantee, to submit to the assembly grants issued by him for their
approbation. His neglect in this respect suspended the definitive
validity, as it was termed, of the grants -- that is, it prolonged
the liability of the estate to be defeated by the action of the
assembly and of the supreme government thereon, to which the matter
was referred in case the approval of the assembly was not obtained,
and no other consequence followed. His neglect was not permitted to
operate to divest the grantees of the estate already vested in
them. [
Footnote 11] In many
instances, years elapsed before the approval was obtained, although
the grantees were in the meantime in the possession and enjoyment
of the property, and in many instances no approval was had previous
to the conquest.
Page 77 U. S. 239
The grant being valid at the time of its issue, has there been
any such disregard of the conditions annexed as to work its
forfeiture? The objection taken is that the grantees never applied
to the proper magistrate for official delivery of possession, as
provided in the second condition, and that they never entered upon
the land. The objection applies only to the period intervening
between the date of the grant and the time when the country passed
under the jurisdiction of the United States. The question is what
right did the grantees acquire in the land from the Mexican
authorities. The court cannot inquire into any acts or omissions by
them since those authorities were displaced. It is not authorized
to pronounce a forfeiture for anything done or anything omitted by
them since that period. Now the military forces of the United
States took possession of Monterey, an important town of
California, on the 7th of July, 1846, and within a few weeks
afterwards occupied the principal portions of the country, and this
occupation continued until the treaty of peace. On that date,
therefore, the authority and jurisdiction of Mexican officials are
considered as having terminated. The political department of the
government, at least, has designated that day as the period when
the conquest of California was completed, and the judiciary in this
respect follows the action of the political department. [
Footnote 12]
Between the date of the grant under consideration and the period
thus designated, only sixty-one days elapsed. There are very few
instances of grants in California where a juridical possession was
delivered to the grantees within a period as limited as this after
their issue. In many instances, years elapsed before this
proceeding was had, and in many instances no juridical possession
was ever delivered previous to the conquest.
In the case at bar, it was impossible for the magistrate to
deliver such possession until the previous grants to Weber and
Bernal, in the same general locality, had been surveyed
Page 77 U. S. 240
and severed from the public domain. It was for the surplus in
that territory remaining after the quantities granted to them had
been satisfied that the present grant called. What part of the
general tract occupied by the previous grantees would be finally
set apart to them could not be known until the official
measurement. The grantees in this case were therefore necessarily
compelled to await the action of the elder grantees, and no action
was ever taken by them to segregate the quantity granted to them
previous to the conquest.
This want of segregation of the quantities claimed by the
previous grantees furnishes also an excuse to the grantees here for
not entering upon the land without the delivery of juridical
possession. To have made such entry would have been to intrude upon
the possessions of others. They could not of themselves have
undertaken to determine what part of the general tracts should be
set apart of the earlier grantees and appropriate the balance as
the surplus to which they were entitled.
But, independent of the considerations stated, it is a
sufficient answer to the objection to say that mere neglect to
comply with the condition did not of itself work a forfeiture of
the grantees' right under the Mexican law. The neglect of a grantee
to apply for or to take possession, if unreasonably prolonged, only
left the land open to denouncement by other parties. The interest
of a grantee could not be divested under the Mexican law any more
than at the common law, upon mere allegations or surmises. Some
formal and regular proceedings were required to effect such
divestiture, and under the Mexican law, these had their inception
in what is termed a denouncement by a party desirous of obtaining
the land. An investigation then followed whether or not the
condition had been complied with or so disregarded as to justify a
decree of forfeiture. Without such inquisition and decree the title
did not revert to the government, nor was the land subject to be
regranted.
The object of the colonization laws and regulations of Mexico
was the settlement of the vacant lands of the republic,
Page 77 U. S. 241
and grants were usually made to accomplish this purpose without
other consideration. But the public, as observed in the
Fremont case,
"had no interest in forfeiting them even in these cases unless
some other person desired and was ready to occupy them and thus
carry out the policy of extending its settlements. [
Footnote 13]"
The several cases cited by counsel where the absence of
possession and the omission of proceedings usually taken in
obtaining concessions of land are noticed and made grounds of
objection to a confirmation have no application. They are cases
where the grants produced were unaccompanied by any archive
evidence, and the attempt was made to uphold them by evidence of
the recollections of witnesses. Thus, in the
Cambuston
case, [
Footnote 14] the
alleged grant produced was unknown to any person beside the grantee
and an interested party until July, 1850, although bearing date in
May, 1846, and no trace of its existence was found in the archives
of the country. So in the
Castro case, [
Footnote 15] the instrument produced as a
grant first made its appearance in June, 1849, though dated in
April, 1846, and was not sustained by a single document in the
archives. The absence of all traces of the grants, where evidence
would usually be found if it had existed, naturally created a
strong presumption against their validity, which could not be
overcome by testimony resting on the uncertain recollections of
Mexican officials.
There having been no forfeiture of the grantees' interest in the
present case, nor any such disregard of the conditions annexed to
their grant as to have justified a forfeiture, the claimants under
the grant are entitled to a confirmation. The interest which passed
by the grant, whether it be regarded as a legal title, imperfect in
its character and to be perfected by a subsequent official survey
and segregation of the quantity designated, or as a mere equitable
or inchoate title, constituted property which the United States
were bound to protect by the stipulations of the treaty of cession.
That treaty provides for the protection of the rights of
property
Page 77 U. S. 242
of the inhabitants of the ceded territory. And, independent of
the treaty, they were entitled to such protection by the law of
nations, according to which, as said by this Court in
Strother
v. Lucas, [
Footnote
16]
"the rights of property are protected even in the case of a
conquered country, and held sacred and inviolable when it is ceded
by treaty, with or without any stipulation to such effect."
By the term "property," as applied to lands, all titles are
embraced, legal or equitable, perfect or imperfect. It was so held
by this Court in the case of
Soulard v. United States,
[
Footnote 17] when
considering the import of the term in a stipulation contained in
the treaty by which Louisiana was acquired, providing that the
inhabitants of that territory should be protected in the enjoyment
of their property. "It comprehends," said the Court,
"every species of title, inchoate or complete. It is supposed to
embrace those rights which are executory as well as those which are
executed. In this respect, the relation of the inhabitants to their
government is not changed. The new government takes the place of
that which has passed away."
It follows from the views we have expressed that the appellants
possessed under the grant in this case, at the date of the cession
of California to the United States, a right of property in the land
granted, and as a consequence that their claim is valid and should
be confirmed.
The decree of the district court must, therefore, be
Reversed and the cause remanded, with directions to enter a
decree confirming the claim of the petitioners.
CONFIRMING THE CLAIM OF THE PETITIONERS.
[
Footnote 1]
9 Stat. at Large 631.
[
Footnote 2]
Taken from the translation in Rockwell's Spanish and Mexican Law
in relation to mines and titles to real estate, vol. i, p. 453.
[
Footnote 3]
<|5 Wall. 828|>Higueras v. United States, 5 Wall.
828;
<|8 Wall. 339|>Alviso v. United States, 8 Wall.
339.
[
Footnote 4]
<|17 How. 542|>17 How. 542, <|17 How. 558|>558.
[
Footnote 5]
Page <|2 Wheat. 196|>196.
[
Footnote 6]
56 U. S. 17
How. 559.
[
Footnote 7]
58 U. S. 17
How. 565.
[
Footnote 8]
58 U. S. 17
How. 561.
[
Footnote 9]
United States v.
Sutter, 21 How. 172;
The Sutter
Case, 2 Wall. 563.
[
Footnote 10]
United States v.
Johnson, 1 Wall. 329.
[
Footnote 11]
United States v.
Reading, 18 How. 4;
United
States v. Vaca, 18 How. 556;
United
States v. Larkin, 18 How. 558;
United
States v. Cruz Cervantes, 18 How. 553;
United States v.
Johnson, 1 Wall. 329.
[
Footnote 12]
United States v.
Yorba, 1 Wall. 423.
[
Footnote 13]
1 How. 561.
[
Footnote 14]
61 U. S. 20 How.
59.
[
Footnote 15]
65 U. S. 24 How.
346.
[
Footnote 16]
37 U. S. 12
Pet. 436.
[
Footnote 17]
29 U. S. 4 Pet.
511.
MR. JUSTICE DAVIS, with whom concurred CLIFFORD and SWAYNE, JJ.,
dissenting.
I am unable to concur in the decree of the Court in this case,
and as the claim embraces a large tract of country which is a part
of the public domain, if this claim is not
Page 77 U. S. 243
sustainable, I think it proper to state as briefly as possible
the grounds of my dissent. Similar claims have been so frequently
before the Court that any extended discussion of the general rules
of law applicable to them is not necessary, as these rules have
been so often explained in our reported decisions. It is clear that
valid claims should be confirmed, and equally clear that those of a
contrary character should be rejected. Tested by the rules of law
established by this Court in analogous cases, I am of opinion that
the claim of the appellants is invalid. The Mexican authority was
overthrown in California on the 7th of July, 1846, but the history
of the times made it clear to every intelligent man for a
considerable period before this date that the country would pass to
the jurisdiction of the United States. During this period, grants
of land were made very freely by Pio Pico, the acting governor, and
the records of this Court show that many of these grants were
invalid and fraudulent. Doubtless grants were made by him within
that time which were valid, but all must agree, I think, that every
grant which bears his signature should be examined with the most
careful scrutiny. By the record in this case, it appears that the
petition for this grant is dated the 5th day of May, 1846, and the
grant, if any were made, was on the following day, and did not
comply with the requirements of the law conferring power on the
Governor of California to grant lands. The Mexican law, to make a
title valid, required it to be evidenced by certain written
instruments which taken together constitute an expediente. The
expediente, when complete (as decided by this Court), consisted of
a petition, with a diseno or map annexed, a marginal decree
referring the petition to a local officer to report whether the
land was vacant and grantable, and the petitioner a proper person
to obtain the bounty of the government; the report of that officer
on these subjects, called an informe; the decree of concession and
the copy or duplicate of the grant, as the original was delivered
to the petitioner. It was in express terms required by the Mexican
law that the petitions for lands and the grants with maps
annexed
Page 77 U. S. 244
should be recorded. [
Footnote
2/1] It was insisted that the papers which were produced in
this case before the commissioners constituted such an expediente,
but if it be conceded the papers are of Mexican authority, they do
not contain any diseno or map, or reference to the local officer,
or his report thereon. There could be no record of the petition and
grant with the map of the land granted, because no map of any kind
was annexed to the petition, and there is no evidence in the record
that any part of the expediente was recorded as required by Mexican
law. Grants of this kind were made subject to the approval of the
departmental assembly, but there is nothing to show an attempt even
to comply with this requirement. On the contrary, there is every
reason to conclude that it never was presented to that assembly, as
it is well known that there were a large number of grants made
about that time which were presented and approved, and as this one
was not approved, the inference is fair and reasonable that it was
never presented for approval. It also appears that no judicial
measurement of the land was made, nor possession of it taken by the
supposed grantees, as required by the Mexican law, and the
conditions of the grant.
The documents offered in evidence are not shown by any competent
proof to be Mexican documents. The court in its opinion describes
them as having been produced from the public archives, and this
statement might create the impression that the expediente under
consideration came from the Mexican archives. This cannot be so, as
the number of the expediente proves beyond a doubt that it is one
of those papers found in the custom house at Monterey the latter
part of the year 1847 or the fore part of the year 1848, which were
subsequently included in Hartnell's Index.
This index is not and never has been regarded as a Mexican
document. [
Footnote 2/2] Since the
decision of
Castro's Case, [
Footnote 2/3] this Court, until now, as I suppose, has
adhered to the principle that whoever claims title to land in
California under a grant
Page 77 U. S. 245
from a Mexican governor, must as a general rule produce the
grant and show that it came from the public archives of land titles
in the proper office of that department, or that it was found in
Jimeno's Index, or that it was recorded in the Toma de Razon. It is
true, in that case, Chief Justice Taney said that secondary
evidence could be received when it appeared that the grant had been
properly made and that the papers, or some of them, in the office
where they were kept had been lost or mislaid, but the Court held
that a party setting up a grant by such proofs must also show that
there was a judicial survey of the land and that the supposed
grantees took actual possession of it and exercised acts of
ownership over it before the change of jurisdiction. There are a
number of cases in which the same rule is laid down (some of
earlier and others of later date than
Castro's Case), and
it seems to me they ought to control the decision of this case.
[
Footnote 2/4]
No possession of any kind is proved in this case, and the
authenticity of this grant, covering an area of over forty thousand
acres of land, depends on the testimony of a single witness,
unsupported by any proof except the imperfect or mutilated
expediente found among a mass of loose papers on the floor of one
of the rooms of the custom house at Monterey after the Mexican
officials had fled on the approach of our forces.
Possession is essential in such a case to establish an equity,
and as none is proved, the claimant has no equity, and in my
judgment the decree ought to be affirmed.
[
Footnote 2/1]
Knight's
Case, 1 Black 228.
[
Footnote 2/2]
Knight's Case, supra.
[
Footnote 2/3]
65 U. S. 24
How. 349.
[
Footnote 2/4]
United States v.
Cambuston, 20 How. 59;
United
States v. Fuentes, 22 How. 443;
United
States v. Bolton, 23 How. 341;
White v.
United States, 1 Wall. 660;
United
States v. Pico, 2 Wall. 279.
