Prefects in California, however appointed or elected, had no
power, after the conquest of the country by the United States, to
make grants of the common or unappropriated lands of the pueblos
within their jurisdiction. And titles derived from them cannot,
unless assisted by legislation, be regarded as valid.
Alexander brought ejectment against Roulet and others in the
court below to recover a piece of land in San Francisco,
California. The title was thus:
The conquest of California was complete, as decided by this
Court, [Footnote 1
] July 7,
1846. On the 12th of January, 1850, Horace Hawes, at that time, by
virtue of an appointment from the then military governor of the
then Territory of California and an election by the people of the
district, acting as the prefect of the district embracing the then
pueblo, now City of San Francisco, granted to Edward Carpenter the
premises in controversy. The title of Carpenter, thus acquired,
became vested in the plaintiff. The premises were within the limits
of the said pueblo, now City of San Francisco.
The court gave judgment for the defendant, holding, among other
things, that although each prefect of California, while the same
was part of the Mexican territory, had power to make grants of the
common and unappropriated lands of the pueblos within their
jurisdiction, yet that
Page 80 U. S. 387
from and after the conquest and acquisition of the country by
the United States, they ceased to have such power, and consequently
that the grant of Prefect Hawes was void.
On error here, among the questions raised were these:
1. Whether, while California was still part of the Mexican
territory, prefects there had power to make grants of the common or
unappropriated lands of pueblos within their jurisdiction.
2. Assuming that they had the power while the region was under
Mexican rule, whether prefects elected by the people as well as
appointed by military governors of the United States after the
cession and conquest had the same power.
MR. JUSTICE DAVIS delivered the opinion of the Court.
It has been repeatedly decided by this Court that a recovery
cannot be had in an action of ejectment in the federal courts
except on a legal title, and the inquiry is whether the plaintiff
in this case is clothed with such a title.
This title rests on the authority of Horace Hawes, acting as
prefect of the district embracing the then pueblo of San Francisco
under the appointment of the military governor of California and an
election by the people of the district, to grant a part of the
common lands of the pueblo.
It is not necessary for the purposes of this suit to decide
whether prefects of California, while the same was a part of the
Mexican territory, were authorized to make grants of the common or
unappropriated lands of the pueblos within their jurisdiction,
because in this case, the grant was after the conquest and
acquisition of the country by the United States, and if the prefect
had such authority before that event, it clearly ceased with the
changed relations of the people. By the conquest of the country,
Mexican rule was displaced and with it the authority of Mexican
officials to alienate the public domain, and as a necessary
consequence of this conquest, the Constitution of the United
Page 80 U. S. 388
gives to Congress the disposition of the public lands, was
extended over the Territory of California. Until Congress provided
a government for the country, it was in charge of military
governors, who, with the aid of subordinate officers, exercised
municipal authority; but the power to grant land or confirm titles
was never vested in these military governors [Footnote 2
] nor in any person appointed by
It is contended, however, that Hawes' election by the people of
the pueblo to the office of prefect on the retirement of the
Mexican officials gave him all the power a Mexican prefect would
have had if the country had not been conquered. Is this position
maintainable? Pueblos or towns, by the laws of Mexico, were
entitled to a certain quantity of lands adjoining them, which were
held in trust for the benefit of their inhabitants. The nature and
extent of these pueblo rights have been the subject of a great deal
of controversy since the acquisition of California, and came before
this Court for consideration in the case of Townsend v.
JUSTICE FIELD, in delivering the opinion of the Court in that case,
"It may be difficult to state with precision the exact nature of
the right or title which the pueblos held in these lands. It was
not an indefeasible estate; ownership of the lands in the pueblos
could not in strictness be affirmed. It amounted in truth to little
more than a restricted or qualified right to alienate portions of
the land to its inhabitants for building or cultivation and to use
the remainder for commons, for pasture lands, or as a source of
revenue or for other public purposes. This right of disposition and
use was in all particulars subject to the control of the government
of the country."
Manifestly, if this right of disposition and use were subject to
Mexican control while Mexican rule prevailed, it was equally
subject to the control of our government when this rule was
changed. It must be conceded that these pueblos had an equitable
right to have their common lands confirmed to them, but they did
not hold them as a private individual
Page 80 U. S. 389
does his estate, and it needed legislative action to ripen this
equitable right into a legal title. Congress has acted upon this
subject and confirmed the lands of the pueblo of San Francisco,
including the demanded premises, and this confirmation could not
enure to the benefit of anyone claiming under a grant by an
American prefect unless there were an express declaration to that
effect. As there is no pretense that the grant in this case was
protected by legislation, it follows that the plaintiff has no
title of any sort to rest upon.
Stearns v. United
6 Wall. 590.
6 Wall. 435.
72 U. S. 5