1. Spanish grants made in Texas for lands in the "Neutral
Ground," east of the Sabine, from 1790 to 1800, are valid.
2. The Mexican league applicable to grants of such lands, being
a square of 5000 varas on each side, has always been estimated at
4428.4 acres, the vara being considered 33 1/3 American inches.
3. The true Mexican vara is slightly less than 33 American
inches, but by use in California it is estimated at 33 inches, and
in Texas at 33 1/3 inches.
4. The common usage of a country in reference to its measures
should be followed in estimating them when mentioned in grants
taking effect there.
5. Where countries have been acquired by the United States, its
courts take judicial notice of the laws which prevailed there up to
the tithe of such acquisition. Such laws are not foreign, but those
of an antecedent government.
The facts are stated in the opinion of the Court.
Page 98 U. S. 429
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The claim in this case is for four leagues of land granted by
Bernardo Fernandez, commandant of the post of Nacogdoches, under
the Spanish government, in the Province of Texas, to Pedro Dolet,
on the 27th of December, 1795, and extended in possession on the
14th of January, 1796. The land was situated on the bayou of the
Adoise, in the settlement of Bayou Pierre, and in what is known as
the Neutral Ground, lying east of the Sabine River, and west of the
arroyo Hondo, the Kisachey, and the Calcasieu. This territory was
then claimed as belonging to Texas, and was occupied and settled by
the Spanish authorities of that province, though claimed by the
Province of Louisiana -- the Spanish settlements in Texas having
been pushed forward easterly across the Sabine. After the cession
of Louisiana to the United States, it became a subject of dispute
between our government and Spain, and the Sabine was finally
acquiesced in as the boundary line. But as Spain owned both
provinces at the time of this grant, there can be no question as to
its validity. Such a grant for a large tract of over 200,000 acres
of land in the same district was confirmed by this court in
United States v. Davenport's
Heirs, 15 How. 1. The grant in that case was made
in the same year as the grant in this case, 1795. The Court, by Mr.
Justice Campbell, said:
"The land comprehended in these grants at their respective dates
was within the unquestioned dominions of the crown of Spain. The
evidence clearly established that the commandants of the posts at
Nacogdoches, before and subsequently, were accustomed to make
concessions to lands in the neutral territory. This was not at all
times an unquestioned jurisdiction, but between the years 1790 and
1800 it seems to have been generally acquiesced in."
We think, therefore, that the grant must be sustained. The
evidence produced to authenticate it is, under the circumstances,
all that the claimants could be expected to produce.
But the grant is for four leagues only. The claimants obtained a
decree below for four American or English leagues, and such leagues
may have been inadvertently allowed in some previous cases. But it
is evident that no such leagues were in the minds of the parties.
The leagues intended were Spanish
Page 98 U. S. 430
leagues, such as were used in land measures and grants in Mexico
and Texas at that period. Now we are bound to take judicial notice
that the Mexican league was not the same as the American league.
The laws of Mexico, of force in Texas previous to the Texan
revolution, were the laws not of a foreign, but of an antecedent
government, to which the government of the United States, through
the medium of the Republic of Texas, is the direct successor. Its
laws are not deemed foreign laws, for as to that portion of our
territory they are domestic laws, and we take judicial notice of
them.
Fremont v. United
States, 17 How. 542,
58 U. S.
557.
If any doubt existed as to the extent of the Mexican league, an
inquiry might be necessary to ascertain it. But no such doubt
exists. The old legal league, by the laws of Spain, and which was
adopted in Mexico, consisted of 5,000 varas, and a vara in Texas
has always been regarded as equivalent to 33 1/3 English inches --
making the league equal to a little more than 2.63 miles, and the
square league equal to 4,428 4/10 acres. This is perfectly well
understood in Texas, where controversies respecting Spanish titles
are constantly brought before the courts.
Strictly speaking, the standard vara of Mexico is somewhat less
than 33 1/3 inches. Our engineers, at the close of the Mexican war,
brought back with them a copy of that standard found in the Mexican
archives, being one of a set prepared for distribution among the
Mexican States. This standard is still preserved in the Coast
Survey office, and by careful comparison with our standards by
Professor Bache, was found to be only 32.9682 inches. This agrees
very closely with the public reports of the government of Mexico on
the subject, which make their vara 838 millimeters, which are
equivalent to 32.9927 inches. Humboldt, in 1803, found it to be
839.16 millimeters, or a slight fraction over 33 inches. But it
seems that a vara measure of somewhat larger dimensions obtained in
Texas from an early period, and the result is what has been stated
above, 32 1/3 inches to the vara, and 4,428.4 acres to the league.
The cordel, a cord of 50 varas, or about 137 1/2 feet in length,
was the instrument generally used in measuring large tracts, one
hundred of these making a league, and it is
Page 98 U. S. 431
probable that the cordel originally employed in Texas had become
somewhat lengthened by use.
See the Constitution and Laws
of the Republic of Mexico and of the States of Coahuila and Texas,
New York, 1832; also Yoakum's History of Texas, vol. i. p. 217;
Rockwell's Spanish and Mexican Laws, p. 664; Halleck's Report,
Ex.Doc. No. 17, H.Rep. 1st Sess. 31st Cong. p. 145.
The standard Mexican vara is so near to 33 inches (wanting,
according to the best measurements, less than a hundredth of an
inch of that quantity), that a standard vara measure laid on an
American yard would so nearly correspond with 33 inches, that the
difference could not be perceived by the naked eye. Hence, in
California, after its acquisition by the United States, a vara came
to be considered as exactly equal to 33 inches, and this result was
sanctioned by the General Land Office as early as 1852. The United
States Surveyor General of California, in a report to the land
office, dated at San Francisco, Nov. 14, 1851, said:
"All the grants, &c., of lots or lands in California, made
either by the Spanish government or that of Mexico, refer to the
'vara' of Mexico as the measure of length. By common consent here,
that measure is considered as being exactly equivalent to
thirty-three American inches."
He then refers to other estimates found in a recent publication,
and adds:
"It is important that the relative proportions of their measures
should be clearly settled. I therefore have to ask the aid of the
department in doing so."
The commissioner, in an answer to this letter, dated Washington,
March 5, 1852, said:
"You state that by common consent it [the Mexican vara] is
considered in California as exactly equivalent to 33 American
inches. I can see no reason why there should be any departure from
this ratio, and agree with you that any important change in the
length of the 'vara' recognized and acted upon in California would
produce confusion."
It is understood that the department has always, since that
time, acted upon this standard of value of the vara in respect to
surveys in California, which makes the square league of 5,000 varas
to the side, equivalent to 4,340.278 acres. In a letter addressed
by Mr. Wilson, Commissioner of the General Land Office, to the late
Mr. Justice Catron of this Court on
Page 98 U. S. 432
the 20th of February, 1855, he says that the practice of the
land office is to consider and allow the vara in California as
equivalent to 33 inches, and the league as equivalent to 4,340.27
acres.
It is important that the uniform practice and usage of a country
should be observed in the construction of all grants made therein
whilst such usage prevailed.
For this reason, we think that in Texas, and in relation to
grants emanating from the Mexican government in that province,
before its separation from the parent state, the vara and league
recognized in land measures there should be respected.
Allowing the claimant, therefore, at the rate of 4,428.4 acres
to the league, according to the rate above referred to, he is
entitled to a decree for 17,713 6/10 acres, instead of 23,040, as
decreed by the court below, requiring a deduction of 5,326 4/10
acres. If the claimant will remit this excess, he will be entitled
to an affirmance of the decree for the balance, namely, for 17,713
6/10.
On filing such remitter, a decree may be entered accordingly;
and it is
So ordered.
NOTE -- The following table shows the different values given to
the Mexican vara and league by different measurements and
authorities:
image:a
Vide Diccionario Universel de Historia y de Geografia,
article Medidas y Pesas, and authorities cited in opinion.