Hornsby v. United States,
77 U.S. 224 (1869)

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U.S. Supreme Court

Hornsby v. United States, 77 U.S. 10 Wall. 224 224 (1869)

Hornsby v. United States

77 U.S. (10 Wall.) 224


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

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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

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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

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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.

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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

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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

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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

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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

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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."

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