By the Act of Congress passed on the 3d March, 1851, 9 Stat.
631, to ascertain and settle the private land claims in the State
of California, it is made the duty of every person claiming lands
in California, by virtue of any right or title derived from the
Spanish or Mexican government, to present the same to the
commissioners to be appointed under that act who were to examine
and decide upon the validity of the claim.
The commissioners, the district, and the Supreme Court, in
deciding on any claim brought before them, were directed to be
governed by the Treaty of Guadaloupe Hidalgo, the law of nations,
the laws, usages, and customs of the government from which the
claim is derived, the principles of equity, and the decisions of
the Supreme Court of the United States, as far as they are
applicable.
Under this act, not only inchoate or equitable titles, but legal
titles also were required to be passed upon the court. This was an
essential difference from the act of 1824, under which claims to
land in Louisiana and Florida were decided, and which related to
inchoate equitable titles.
Grants of land in Louisiana and Florida were usually preceded by
a concession and survey, and until a survey took place, no title
accrued to the grantee. Hence this Court has always decided that
where the grantee took no further steps in the matter, he had
acquired no right, legal or equitable, to the lands under the
Spanish government.
The laws of these territories, under which titles were claimed,
were never treated by this Court as foreign laws, to be decided as
a question of fact, but the Court held itself bound to notice them
judicially, as much so as the laws of a state of the Union.
On the 29th of February, 1844, Micheltorrena, the Governor of
California, granted to Juan B. Alvarado, the tract of land known by
the name of Mariposas, to the extent of ten square leagues within
the limits of the Snow Mountain, Sierra Nevada, and the rivers
known by the names of the Chanchilles, of the Merced and San
Joaquin, as his property, subject to the approbation of the most
excellent departmental assembly, and to certain conditions.
This grant conveyed to him a present and immediate interest. If
any subsequent grantee of the government had made a survey within
the described limits, his title would have been paramount to that
of Alvarado. But no such grant and survey were made.
The case of
Rutherford v. Greene's
Heirs, 2 Wheat. 196, examined.
No further and definite grant, stating that the conditions had
been complied with, was necessary.
The conditions were conditions subsequent, but a noncompliance
with them did not amount to a forfeiture of the grant.
There was no unreasonable delay or want of effort on the part of
Alvarado to fulfill the conditions, so that there is no room for
the presumption that he intended to abandon the property.
The reasons explained why Alvarado did not make a survey or a
settlement, and why Fremont, his vendee, did not.
One of the conditions was that Alvarado should not sell,
alienate, or mortgage the property. But this restriction was void
as being against the laws of Mexico, and moreover, at the time of
the sale to Fremont, California was held by the United States as a
conquered country, and an American citizen had a right to purchase
property. Although Mexico might have avoided the sale, there is no
public law which could require the United States to do so; and any
law which subjected an American citizen to disabilities was
necessarily abrogated without a formal repeal.
The question about the right to mines does not arise in the
present case.
The United States has to direct, by law, how the survey is to be
made, in the form and divisions prescribed for surveys in
California, embracing the entire grant in one tract.
MR. JUSTICE DANIEL did not sit in this cause.
Page 58 U. S. 543
Fremont, the appellant, claimed title to a large tract of land,
and prosecuted his claim before the board of commissioners, who
decided in his favor. That decision having been reversed by the
district court, the case was now brought here by appeal.
The title of Fremont was derived from Juan Alvarado, to whom a
grant was issued, in 1844, by Manuel Micheltorrena, then Governor
and Commandant-General of the Department of the Californias,
purporting to be founded upon the patriotic services of Alvarado.
It appears that as early as 1836, Alvarado was conspicuous in the
commotions which took place in California, resulting from the same
proceedings of the government of Mexico which occasioned the
revolution in Texas. California declared itself opposed to the
centralization of power in Mexico, and Alvarado was proclaimed
governor by the provincial deputation. In 1837, he repelled the
effort of Cavvillo to take possession of the government, who had
been appointed governor by Mexico, and Alvarado was afterwards
confirmed as constitutional governor by the authorities of Mexico.
He continued in authority until 1842, when Micheltorrena was
appointed to succeed him, under whom Alvarado was employed as first
counselor of the departmental junta, with a salary of $1,500.
On the 23d of February, 1844, Alvarado petitioned Micheltorrena
to grant him the land in question. And as this is one of the first
cases in this Court of this description, it is deemed proper to
insert in full the title under which the appellant claimed. The
documents are as follows:
"Record of proceedings instituted by citizen Juan Bautista
Alvarado, colonel of the auxiliary militia, soliciting the tract of
land called 'Las Mariposas.'"
"
Anno 1844. Number 352."
"To his Excellency the Governor:"
"I, Juan B. Alvarado, colonel of the auxiliary militia of this
department, to your Excellency, with due respect, do represent,
that being actually the owner (by purchase which I made) of a very
small tract of land, which is not sufficient to support the cattle
with which it is stocked, without injury to the estates likewise
there established, and being desirous of increasing it, at the same
time to contribute to the spreading of the agriculture and industry
of the country, I solicit your Excellency, according to the
colonization laws, to be pleased to grant me ten sitios de ganado
mayor (ten square leagues) of land, north of the River San Joaquin,
within the limits of the Snow Mountain (Sierra
Page 58 U. S. 544
Nevada), in the same direction the River Chanchilles, in the
east part of the Merced, on the west, and the before-mentioned San
Joaquin, with the name of the Mariposas, offering to present to Y.
E. the proper plan and draft thereof so soon as the same shall be
made with exactness, not doing it at this time for the difficulty
of being a wilderness country on the confines of the wild Indians,
and because I desire that my claim for this cause may not be
delayed."
"Therefore I hope from the good intentions of Y. E., in favor of
the improvements of the country, the most favorable result, if it
be in justice, by which I will receive favor."
"[Signed] JUAN B. ALVARADO"
"Rancho del Alizal, 23d of February, 1844"
"Monterey, 27th of February, 1844"
"Let the secretary of state report, and he may require such
other reports as he may deem expedient, should he need them."
"[Signed] MICHELTORRENA"
"As directed by his Excellency, the governor, let the preceding
petitioner be referred to the first alcalde of San Jose, that he
may be pleased to report thereon."
"[Signed] MANUEL JIMENO"
"Monterey, 26th
* of February, 1844."
"To the Secretary of State:"
"The land solicited in this petition by Don Juan B. Alvarado is
entirely vacant; it does not belong to any individual, town, or
corporation, and I believe that for these reasons, as well as that
of the petitioner being meritorious for his patriotic services and
commendable circumstances, there is no impediment for granting him
the said land in fee. This is all I have to report to your Honor in
answer to your preceding superior order, which opinion I submit to
the decision of your Honor, which will be the most proper one."
"[Signed] ANTONIO M'A PICO"
"Town of San Jose, Gaudaloupe, February 29, 1844"
"To his Excellency the Governor:"
"According to the report of the magistrate of San Jose, and the
information I have acquired from persons who know the land, it is
ascertained the same may be granted to the petitioner, who may be
favorably considered for the services which he has rendered to the
department. The superior judgment of Y. E. will decide the
expediency."
" [Signed] MANUEL JIMENO"
"Monterey, 29th of February, 1844 "
Page 58 U. S. 545
"Monterey, 22d of February, 1844"
"Let the title be issued, expressing that he the petitioner is
meritorious for his patriotic services, and consequently worthy of
preference."
"[Signed] MICHELTORRENA"
"Monterey, 29th of February, 1844"
"Having considered the petition which is at the beginning of
this record of proceedings, espediente, the preceding report, and
the patriotic services of the petitioner, with everything worthy of
consideration in the premises, in conformity with the laws and
regulations upon the subject, I declare Don Juan Bautista Alvarado
owner in fee of the tract of land known by the name of 'Las
Mariposas,' within the boundaries of the Snow Mountains, Sierra
Nevada, and the rivers called the Chanchilles, the Merced, and San
Joaquin."
"Let the proper patent be issued, let it be registered in the
respective book, and let this record of proceedings be transmitted
to the most excellent departmental assembly, for its approval."
"MANUEL MICHELTORRENA"
"
Brigadier General of the Mexican Army, Adjutant
General"
"
of the staff of the same, Governor and Commandant
General"
"
of the Department of the Californias"
"Whereas, Don Juan B. Alvarado, colonel of the auxiliary militia
of this department, is worthy, for his patriotic services, to be
preferred in his pretension for his personal benefit and that of
his family, for the tract of land known by the name of the
Mariposas, to the extent of ten square leagues sitios de ganado
mayor within the limits of the Snow Mountain, Sierra Nevada, and
the rivers known by the names of the Chanchilles, of the Merced,
and the San Joaquin, the necessary requirements, according to the
provisions of the laws and regulations, having been previously
complied with, by virtue of the authority in me vested, in the name
of the Mexican nation, I have granted to him the aforesaid tract,
declaring the same by these presents his property in fee, subject
to the approbation of the most excellent the departmental assembly,
and to the following conditions:"
"1. He shall not sell, alienate, or mortgage the same, nor
subject it to taxes, entail, or any other encumbrance."
"2. He may enclose it without obstructing the crossings, the
roads, or the right of way; he shall enjoy the same freely and
without hindrance, destining it to such use or cultivation as may
most suit him; but he shall build a house within a year, and it
shall be inhabited."
"3. He shall solicit, from the proper magistrate, the judicial
possession of the same, by virtue of this patent, by whom the
boundaries shall be marked out, on the limits of which he the
grantee shall place the proper landmarks. "
Page 58 U. S. 546
"4. The tract of land granted is ten sitios de ganado mayor, ten
square leagues, as before mentioned. The magistrate who may give
the possession shall cause the same to be surveyed according to the
ordinance, the surplus remaining to the nation for the proper
uses."
"5. Should he violate these conditions, he will lose his right
to the land, and it will be subject to being denounced by
another."
"Therefore, I command that these presents being held firm and
binding, that the same be registered in the proper book, and
delivered to the party interested, for his security and other
purposes."
"Given in Monterey, this 29th day of the month of February, in
the year of 1844."
"MANL. MICHELTORRENA"
"MANUEL JIMENO,
Secretary"
"This patent is registered in the proper book on the reverse of
folio '6.'"
"JIMENO"
The evidence showed that the land continued to be disturbed by
hostile Indians until after the occupation of California by the
Americans and until 1849.
On February 10, 1847, Alvarado executed a deed of the
above-described property to Fremont, with a general warranty of
title. The consideration stated was three thousand dollars.
In 1849, Fremont caused a map of the grant to be made, and used
efforts to have it settled.
On the 21st of January, 1852, Fremont filed his claim before the
commissioners to ascertain and settle the private land claims in
the State of California, sitting as a board, in the City of San
Francisco.
On December 27, 1852, the board decreed that the claim be
confirmed, to the extent of ten square leagues, being the same land
described in the grant and map filed in the office of the United
States Surveyor General for California, November 21, 1851.
On the 20th of September, 1853, there was filed in the office of
the commissioners a notice from the Attorney General of the United
States, that an appeal from the decision of the commissioners to
the District Court of the United States for the Northern District
of California, would be prosecuted; and in consequence of that
appeal, the decision of the commissioners was reversed on the 7th
of January, 1854. It was now brought before this Court by an appeal
from the district court.
Page 58 U. S. 552
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The court have considered this case with much attention. It is
not only important to the claimant and the public, but it is
understood that many claims to land in California depend upon the
same principles, and will, in effect, be decided by the judgment of
the court in this case.
A preliminary question has been raised, as to the jurisdiction
of the district court from which the appeal has been taken; but the
same question has been already examined and decided in the case of
the
United States v. Ritchie, and it is unnecessary to
discuss it further. We think it very clear that the district court
had jurisdiction, and proceed to examine the validity of the claim
upon this appeal.
The 8th section of the Act of March 3, 1851, "to ascertain
Page 58 U. S. 553
and settle the private land claims in the State of California,"
directs:
"That each and every person claiming lands in California, by
virtue of any right or title derived from the Spanish or Mexican
government, shall present the same to the commissioners, to be
appointed under that act, when sitting as a board, together with
such documentary evidence and testimony of witnesses as the said
claimant relies upon in support of such claims; and it shall be the
duty of the commissioners, when the case is ready for hearing, to
proceed promptly to examine the same upon such evidence, and upon
the evidence produced in behalf of the United States, and to decide
upon the validity of the said claim, and, within thirty days after
such decision is rendered, to certify the same, with the reasons on
which it is founded, to the district attorney of the United States
in and for the district in which such decision shall be
rendered."
And the 11th section provides
"That the commissioners therein provided for, and the district
and Supreme Court, in deciding on any claim brought before them
under the provisions of that act, shall be governed by the Treaty
of Guadaloupe Hidalgo, the law of nations, the laws, usages, and
customs of the government from which the claim is derived, the
principles of equity, and the decisions of the Supreme Court of the
United States, as far as they are applicable."
The decisions of the Supreme Court, mentioned in this section,
evidently refer to decisions heretofore given in relation to titles
in Louisiana and Florida, which were derived from the French or
Spanish authorities, previous to the cession to the United States.
And as these decisions must govern the case under consideration as
far as they are applicable, it is proper to state the principles
upon which they were made before we proceed to examine it. In doing
this, however, we do not propose to refer separately to each of the
numerous decisions which may be found in the reports; nor is it
necessary. They will be found to have been uniformly decided upon
certain fixed principles of law, applicable to those grants, which
cannot always be applied with justice and equity to a case like the
one before us. The laws of Congress, giving the jurisdiction, were
different in one respect, and the condition of the countries, as
well as the laws and usages of the nation making the grants, were
also different.
It will be seen from the quotation we have made that the 8th
section embraces not only inchoate or equitable titles, but legal
titles also, and requires them all to undergo examination and to be
passed upon by the court. The object of this provision appears to
be, to place the titles to land in California upon a stable
foundation, and to give the parties who possess them an
Page 58 U. S. 554
opportunity of placing them on the records of the country, in a
manner and form that will prevent future controversy.
In this respect, it differs from the act of 1824, under which
the claims in Louisiana and Florida were decided. The jurisdiction
of the Court in these cases was confined to inchoate equitable
titles, which required some other act of the government to vest in
the party the legal title or full ownership. If he claimed to have
obtained from either of the former governments a full and perfect
title, he was left to assert it in the ordinary forms of law, upon
the documents under which he claimed. The Court had no power to
sanction or confirm it when proceeding under the act of 1824, or
the subsequent laws extending its provisions.
And the language of the Court in passing judgment upon the
claims in Louisiana of Florida must always be understood as
applying to cases in which the government still held the ownership
of the land, and where the right of the party to demand a
conveyance, upon principles of equity and good faith, must be shown
by him, before he could claim it from the United States.
The mode and form of granting lands in these provinces, and the
character and stability of the provincial governments, must also be
considered, before we can determine how far the principles
established in the decisions of those cases are applicable to the
grants by the Mexican authorities, after the country was separated
from Spain.
Grants of land in Louisiana and Florida were usually made in the
following manner: the party who desired to form a settlement upon
any unoccupied land presented his petition to the officer who had
authority to grant, stating the quantity of land he desired, the
place where it was situated, and the purposes to which it was to be
applied. Upon the receipt of the petition, the governor, or other
officer who had the power to grant, issued what is usually called a
concession to the party, authorizing him to have the land surveyed
by the official surveyor of the province. And it was the duty of
this officer to ascertain whether the land asked for was vacant, or
the grant of it would prejudice the right of other parties, and if
the surveyor found it to be vacant, and that the grant would not
interfere with the rights of others, he returned a plat, or
figurative plan, as it was called, and the party thereupon received
a grant in absolute ownership.
These grants were almost uniformly made upon condition of
settlement, or some other improvement, by which the interest of the
colony, it was supposed, would be promoted. But until the survey
was made, no interest, legal or equitable, passed in
Page 58 U. S. 555
the land. The original concession granted on his petition was a
naked authority or permission, and nothing more. But when he had
incurred the expense and trouble of the survey, under the
assurances contained in the concession, he had a just and equitable
claim to the land thus marked out by lines, subject to the
conditions upon which he had originally asked for the grant. But
the examination of the surveyor, the actual survey, and the return
of the plat, were conditions precedent, and he had no equity
against the government, and no just claim to a grant until they
were performed, for he had paid nothing, and done nothing, which
gave him a claim upon the conscience and good faith of the
government. There were some cases, indeed, in which there were
absolute grants of title with conditions subsequent annexed to
them. The case of Arredondo, reported in 6 Peters and of which we
shall speak hereafter, was one of this description. But the great
mass of cases which come before this Court, and which have been
supposed to bear on this case, were of the character above
mentioned.
It necessarily happened from this mode of granting that many
concessions were obtained which the parties never afterwards acted
on. A person who had contemplated a settlement, or planting a
colony, or making some other improvement in a particular place,
sometimes changed his mind, or found some other situation more
suitable, or found himself unable to comply with the conditions
which, in his petition, he had proposed to perform.
But these concessions or permissions were never recalled, and
remained in the possession of the party, although he had abandoned
all thoughts of acting upon them. And when the United States
obtained the sovereignty of these countries, and the energy,
enterprise, and industry of our citizens were rapidly filling it,
and lands which were of no value under the Spanish government would
be ample fortunes under the United States, many persons, who for
years had held these concessions without attempting to avail
themselves of the authority they gave him, came forward and claimed
the right to do so under the government of the union.
A few cases which appear to have been relied on in the argument
in behalf of the United States will show the character of most of
them and the principles upon which they were decided in this Court.
In the case of
Boisdore, 11
How. 63, he had obtained the authority or concession on which he
relied in the year 1783. He had never caused a survey to be made
during the existence of the Spanish government, although twenty
years had elapsed before its cession to this country.
Page 58 U. S. 556
Nor was any step taken by him to obtain a title from the United
States, nor any claim legally brought forward, for seventeen years
after the territory had been ceded to the United States. And
nothing like any serious attempt had been made to fulfill the
conditions upon which he had obtained the concession.
So, too, in the case of
Glenn v. United
States, 13 How. 250, usually called the
Clamorgan Case, the grant was obtained in 1796, and no
possession taken, and no survey had, nor any of the stipulations
into which he had entered complied with, while the Spanish
government lasted. Nor, indeed, was any claim made to it for
several years after the cession to the United States; nor until the
country in which it was situated was filling up with an industrious
population, and the land becoming of great value.
So, again, in the case of
Villemont v. United
States, 13 How. 266, the concession or authority
was made in 1795, and there was an express provision in the
concession, that unless the establishment he proposed in his
petition was made on the land in three years, the concession should
be null. Yet he did nothing during the continuance of the Spanish
government, although it lasted eight years afterwards, and the
excuse from Indian hostility could hardly avail him, because no
difficulty of that kind is suggested in his petition, and from the
character of the improvements he promised to make, it would seem
that one of the objects of this large grant was to form an
establishment which would be useful in repelling Indian hostilities
from the neighboring Spanish settlements.
This brief statement of the facts in these cases shows that the
parties had acquired no right, legal or equitable, to these lands
under the Spanish government. The instruments under which they
claimed were evidently not intended as donations of the land, as a
matter of favor to the individual, or as a reward for services
rendered to the public. They were intended to promote the
settlement of the territories and to advance its prosperity. But up
to the time when Spain ceded them, the parties had done nothing to
accomplish the object, or to carry out the policy of the
government. They had evidently no claim, therefore, upon the
justice or conscience of the Spanish government. It had not granted
them the land, and they had done nothing which, in equity, bound
that government to make them a title. And when Spain ceded the
territories to the United States, it held these lands as public
domain as fully and amply as if those concessions or authorities
had never been given; and the United States received the title in
the same full and ample manner; neither the legal nor equitable
right to them, as public domain, had been impaired
Page 58 U. S. 557
by any act of the Spanish authority, nor had any right been
conveyed to or vested in the claimants.
It is proper to remark that the laws of these territories under
which titles were claimed were never treated by the court as
foreign laws, to be decided as a question of fact. It was always
held that the court was bound judicially to notice them, as much so
as the laws of a state of the Union. In doing this, however, it was
undoubtedly often necessary to inquire into official customs and
forms and usages. They constitute what may be called the common or
unwritten law of every civilized country. And when there are no
published reports of judicial decisions which show the received
construction of a statute, and the powers exercised under it by the
tribunals or officers of the government, it is often necessary to
seek information from other authentic sources, such as the records
of official acts, and the practice of the different tribunals and
public authorities. And it may sometimes be necessary to seek
information from individuals whose official position or pursuits
have given them opportunities of acquiring knowledge. But it has
always been held that it is for the court to decide what weight is
to be given to information obtained from any of these sources. It
exercises the same discretion and power, in this respect, which it
exercises when it refers to the different reported decisions of
state courts, and compares them together, in order to make up an
opinion as to the unwritten law of the state, or the construction
given to one of its statutes.
With these principles, which have been adjudicated by this
Court, to guide us, we proceed to examine the validity of the grant
to Alvarado which is now in controversy.
There can be no question as to the power of the Governor of
California to make the grant. And it appears to have been made
according to the regular forms and usages of the Mexican law. It
has conditions attached to it; but these are conditions subsequent.
And the first point to be decided is whether the grant vested in
Alvarado any present and immediate interest; and, if it did, then,
secondly, whether anything done or omitted to be done by him,
during the existence of the Mexican government in California,
forfeited the interest he had acquired, and revested it in the
government? For if, at the time the sovereignty of the country
passed to the United States, any interest, legal or equitable,
remained vested in Alvarado or his assigns, the United States are
bound in good faith to uphold and protect it.
Now the grant in question is not like the Louisiana and Florida
concessions -- a mere permission to make a survey in a particular
place, and return a plat of the land he desires, with
Page 58 U. S. 558
a promise from the government that he shall have a title to it
when these things are done. But the grant, after reciting that
Alvarado was worthy, for his patriotic services, to be preferred in
his pretension for his personal benefit, and that of his family,
for the tract of land known by the name of Mariposas, to the extent
of ten square leagues, within certain limits mentioned in the
grant, and that the necessary requirements, according to the
provisions of the laws and regulations, had been previously
complied with, proceeds, in the name of the Mexican nation, to
grant him the aforesaid tract, declaring the same, by that
instrument, to be his property in fee, subject to the approbation
of the departmental assembly and the conditions annexed to the
grant.
The words of the grant are positive and plain. They purport to
convey to him a present and immediate interest. And the grant was
not made merely to carry out the colonization policy of the
government, but in consideration of the previous public and
patriotic services of the grantee. This inducement is carefully put
forth in the title papers. And although this cannot be regarded as
a money consideration, making the transaction a purchase from the
government, yet it is the acknowledgment of a just and equitable
claim, and when the grant was made on that consideration, the title
in a court of equity ought to be as firm and valid as if it had
been purchased with money on the same conditions.
It is argued that the description is so vague and uncertain that
nothing passed by the grant, and that he had no vested interest
until the land was surveyed, and the part intended to be granted
severed by lines or known boundaries from the public domain. But
this objection cannot be maintained. It is true that if any other
person within the limits where the quantity granted to Alvarado was
to be located, had afterwards obtained a grant from the government,
by specific boundaries, before Alvarado had made his survey, the
title of the latter grantee could not be impaired by any subsequent
survey of Alvarado. As between the individual claimants from the
government, the title of the party who had obtained a grant for the
specific land would be the superior and better one. For, by the
general grant to Alvarado, the government did not bind itself to
make no other grant within the territory described, until after he
had made his survey. But as between him and the government, he had
a vested interest in the quantity of land mentioned in the grant.
The right to so much land, 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.
Page 58 U. S. 559
This principle of law was maintained by the decision of this
Court, in the case of
Rutherford v. Greene's
Heirs, reported in 2 Wheat. 196. The State of North
Carolina in 1780 passed an act reserving a certain tract of country
to be appropriated to its officers and soldiers, and in 1782, after
granting 640 acres in the territory reserved to each family that
had previously settled on it and appointing commissioners to lay
off in one or more tracts the land allotted to the officers and
soldiers, proceeded to enact that 25,000 acres of land should be
allotted for and given to Major General Nathaniel Greene his heirs
and assigns within the bounds of the lands reserved for the use of
the army, to be laid off by the aforesaid commissioners "as a mark
of the high sense the state entertained of the extraordinary
services of that brave and gallant officer."
In pursuance of this law, the commissioners allotted 25,000
acres of land to General Greene and caused the tract to be surveyed
and returned to the proper office. The manner in which the title
originated under which Rutherford claimed, is not very clearly
stated in the case. The decision turned altogether on the validity
of the title of General Greene and the date at which it commenced.
And the court said that the general gift of 25,000 acres lying in
the territory reserved, became, by the survey, a particular gift of
the 25,000 acres contained in the survey. And, after examining the
title very fully, the Court in conclusion said:
"It is clearly and unanimously the opinion of the court, that
the act of 1782 vested a title in General Greene to 25,000 acres of
land, to be laid off within the boundaries allotted to the officers
and soldiers, and that the survey made in pursuance of that act,
and returned March 3, 1783, gave precision to that title, and
attached it to the land surveyed."
There was a further objection taken to the title of General
Greene upon the ground that, by the Constitution of North Carolina,
there should be a seal of the state to be kept by the governor and
affixed to all grants. And it was objected that this grant by the
legislature had not the formality required by the Constitution to
pass the estate. But in answer to this, the court said that this
provision was intended for the completion and authentication of an
instrument attesting a title previously created by law. That it was
merely the evidence of prior legal appropriation, and not the act
of the original appropriation itself.
The principles decided in this case appear to the Court to be
conclusive as to the legal effect of the grant to Alvarado. It
recognizes as a general principle of justice and municipal law,
that such a grant for a certain quantity of land by the government,
to be afterwards surveyed and laid off within a certain
Page 58 U. S. 560
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.
The act that the grant to General Greene was made by an act of
assembly, did not influence the decision; nor did the Court allude
to it as affecting the question. It is the grant of the state,
whether made by a special law of the legislature, or by the public
officer authorized to make it.
Another objection has been made, upon the ground that the 8th
article of the regulations of 1828 requires what is called a
definite grant, signed by the governor, to serve as a title to the
party interested, wherein it must be stated that the said grant is
made in exact conformity with the provisions of the laws, in virtue
whereof possession shall be given; and it is argued that no title
passed until this definite grant was obtained. But this document is
manifestly intended as the evidence that the conditions annexed to
the grant have all been complied with. It is not required in order
to give him a vested interest, but to show that the estate,
conveyed by the original grant upon certain conditions, is no
longer subject to them; and that he has become definitely the
owner, without any conditions annexed to the continuance of his
estate. It is like the patent required by the laws of North
Carolina after the original grant to General Greene which the court
said was for the completion and authentication of an instrument
attesting a title previously created by law, and, like the case of
General Greene Alvarado had a vested interest without it.
Regarding the grant to Alvarado, therefore, as having given him
a vested interest in the quantity of land therein specified, we
proceed to inquire whether there was any breach of the conditions
annexed to it, during the continuance of the Mexican authorities,
which forfeited his right and revested the title in the
government.
The main objection on this ground is the omission to take
possession, to have the land surveyed, and to build a house on it,
within the time limited in the conditions. It is a sufficient
answer to this objection to say, that negligence in respect to
these conditions and others annexed to the grant does not, of
itself, always forfeit his right. It subjects the land to be
denounced by another, but the conditions do not declare the
land
Page 58 U. S. 561
forfeited to the state, upon the failure of the grantee to
perform them.
The chief object of these grants was to colonize and settle the
vacant lands. The grants were usually made for that purpose,
without any other consideration and without any claim of the
grantee on the bounty or justice of the government. But the public
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. They seem to have been
intended to stimulate the grantee to prompt action in settling and
colonizing the land, by making it open to appropriation by others,
in case of his failure to perform them. But as between him and the
government, there is nothing in the language of the conditions,
taking them all together, nor in their evident object and policy,
which would justify the court in declaring the land forfeited to
the government, where no other person sought to appropriate them,
and their performance had not been unreasonably delayed; nor do we
find anything in the practice and usages of the Mexican tribunals,
as far as we can ascertain them, that would lead to a contrary
conclusion.
Upon this view of the subject, we proceed to inquire whether
there has been any unreasonable delay, or want of effort, on the
part of Alvarado to fulfill the conditions? For if this was the
case, it might justly be presumed, as in the Louisiana and Florida
concessions, that the party had abandoned his claim before the
Mexican power ceased to exist, and was now endeavoring to resume
it, from the enhanced value under the government of the United
States.
The petition of Alvarado to the governor is dated February 23,
1844, and, after passing through the regular official forms
required by the Mexican law, the grant was made on the 29th of the
same month. According to the regulations for granting lands, it was
necessary that a plan or sketch of its lines and boundaries should
be presented with the petition; but in the construction of these
regulations the governors appear to have exercised a discretionary
power to dispense with it under certain circumstances. It was not
required in the present instance. The reason assigned for it in the
petition was the difficulty of preparing it, the land lying in a
wilderness country, on the confines of the wild Indians. This
reason was deemed by the governor sufficient, and the grant issued
without it; and in deciding upon the validity of a Mexican grant,
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. It is the duty of the Court to protect rights obtained
under them, which would have been
Page 58 U. S. 562
regarded as vested and valid by the Mexican authorities. And as
the governor deemed himself authorized, under the circumstances, to
dispense with the usual plan, and his decision, in this respect,
was sanctioned by the other officers entrusted with the execution
of the law, it must be presumed that the power he exercised was
lawful, and that the want of a plan did not invalidate the grant.
The fact that the country where the land was situated was such a
wilderness, and bordered by such dangerous neighbors, that no plan
could then be prepared, is proved by these documents, and that
fact, officially admitted, is worthy of consideration when we come
to the inquiry whether there was unreasonable delay in taking
possession. For by dispensing with the plan or draft on that
account, which was a condition precedent, it may justly be inferred
that the conditions subsequent were not expected by the governor to
be performed, nor their performance intended to be exacted, until
the state of the country would permit it to be done with some
degree of safety.
Now it is well known that Mexico, and California as a part of
it, had for some years before been in a disturbed and unsettled
state, constantly threatened with insurrectionary and revolutionary
movements, and in this state of things the uncivilized Indians had
become more turbulent, and were dangerous to the frontier
settlements, which were not strong enough to resist them. It is in
proof that this state of things existed in the Mariposas Valley
when this grant was made, that it was unsafe to remain there
without a military force, and that this continued to be the case
until the Mexican government was overthrown by the American arms.
In the very year of the grant, a civil war broke out in the
province which ended by the expulsion of the Mexican troops, and
Colonel Fremont entered California at the head of an American force
in 1846, and the country was entirely subdued and under the
military government of the United States in the beginning of 1847,
and continued to be so held until it was finally ceded to the
United States under the Treaty of Guadaloupe Hidalgo. In February,
1847, while California was thus occupied by the American forces,
Alvarado conveyed to Colonel Fremont.
Now it is very clear from the evidence that during the
continuance of the Mexican power it was impossible to have made a
survey, or to have built a house on the land and occupied it for
the purposes for which it was granted. The difficulties which
induced the governor to dispense with a plan when he made the grant
increased instead of diminishing. We have stated them very briefly
in this opinion, but they are abundantly and in more detail proved
by the testimony in the
Page 58 U. S. 563
record. Nobody proposed to settle on it or denounced the grant
for a breach of the conditions. And at the time when the Mexican
authorities were displaced by the American arms, the right which
Alvarado had obtained by the original grant remained vested in him
according to the laws and usages of the Mexican government, and
remained so vested when the dominion and control of the government
passed from Mexico to the United States. The same causes which made
it impossible to take possession of the premises and obtain a
survey made it equally impracticable to obtain the approval of the
departmental assembly. The confusion and disorder of the times
prevented it from holding regular meetings. It is doubtful whether
it met more than once after this grant was made, and its
proceedings, from the state of the country, were necessarily
hurried, and the assembly too much engrossed by the public dangers
to attend to the details or private interests. It does not appear
that the governor ever communicated this grant to the assembly. At
all events, they never acted on it. And the omission or inability
of the public authorities to perform their duty cannot, upon any
sound principle of law or equity, forfeit the property of the
individual to the state. It undoubtedly disabled him from obtaining
what is called a definitive title showing that all the conditions
had been performed, but it could not devest him of the right of
property he had already acquired by the original grant and revest
it in the state.
And certainly no delay is chargeable to Alavardo or Fremont
after California was subjected to the American arms. The civil and
municipal officers who continued to exercise their functions
afterwards did so under the authority of the American government.
The alcalde had no right to survey the land or deliver judicial
possession except by the permission of the American authorities. He
could do nothing that would in any degree affect the rights of the
United States to the public property, and the United States could
not justly claim the forfeiture of the land for a breach of these
conditions, without showing that there were officers in California,
under the military government, who were authorized by a law of
Congress to make this survey, and deliver judicial possession to
the grantee. It is certain that no such authority existed after the
overthrow of the Mexican government. Indeed, if it had existed, the
principles decided in the case of
Arredondo,
6 Pet. 745,
31 U. S. 746,
would furnish a satisfactory answer to the objection.
Two other objections on the part of the United States to the
confirmation of this title remain to be noticed. The first
condition annexed to the grant prohibits grantee from selling,
alienating, or mortgaging the property, or subjecting it to
taxes,
Page 58 U. S. 564
entail, or any other encumbrances. And by the laws of Mexico,
the grantee could not, it is said, sell or convey the land to
anyone but a Mexican citizen, and that Fremont was not a Mexican
citizen at the time of the conveyance under which he claims.
In relation to the first objection, it is evident from the
disturbed state and frequent revolutions in the province, that
there was some irregularity in the conditions annexed to grants,
and that conditions appropriate to one description of grant, from
clerical oversight, or some other cause, were sometimes annexed to
others. This is manifestly the case in the present instance, for
this condition is in violation of the Mexican laws, and could not,
therefore, be legally annexed to this grant. For by the decree of
the Mexican Congress of August 7, 1823, all property which had been
at any time entailed, ceased to be so from the 20th of September,
1820, and was declared to be and continue absolutely free, and no
one in future was permitted to entail it. And the prohibition in
the 13th article of the regulations of 1824 to transfer property in
mortmain necessarily implies that it might be aliened and
transferred in any other manner.
But if this condition was valid by the laws of Mexico, and it
any conveyance made by Alvarado would have forfeited the land under
the Mexican government as a breach of this condition, or if it
would have been forfeited by a conveyance to an alien, it does not
by any means follow that the same penalty would be incurred by the
conveyance to Fremont.
California was at that time in possession of the American
forces, and held by the United States as a conquered country,
subject to the authority of the American government. The Mexican
municipal laws, which were then administered, were administered
under the authority of the United States, and might be repealed or
abrogated at their pleasure, and any Mexican law inconsistent with
the rights of the United States, or its public policy, or with the
rights of its citizens, were annulled by the conquest. Now there is
no principle of public law which prohibits a citizen of a
conquering country from purchasing property, real or personal, in
the territory thus acquired and held; nor is there anything in the
principles of our government, in its policy or its laws, which
forbids it. The Mexican government, if it had regained the power,
and it had been its policy to prevent the alienation of real
estate, might have treated the sale by Alvarado as a violation of
its laws; but it becomes a very different question when the
American government is called on to execute the Mexican law. And it
can hardly be maintained that an American citizen, who makes a
Page 58 U. S. 565
contract or purchases property under such circumstances, can be
punished in a court of the United States with the penalty of
forfeiture, when there is no law of Congress to inflict it. The
purchase was perfectly consistent with the rights and duties of
Colonel Fremont, as an American officer and an American citizen,
and the country in which he made the purchase was, at the time,
subject to the authority and dominion of the United States.
Still less can the fact that he was not a citizen of Mexico
impair the validity of the conveyance. Every American citizen who
was then in California had at least equal rights with the Mexicans,
and any law of the Mexican nation which had subjected them to
disabilities, or denied to them equal privileges, were necessarily
abrogated without a formal repeal.
In relation to that part of the argument which disputes his
right, upon the ground that his grant embraces mines of gold or
silver, it is sufficient to say that under the mining laws of
Spain, the discovery of a mine of gold or silver did not destroy
the title of the individual to the land granted. The only question
before the Court is the validity of the title. And whether there be
any mines on this land, and, if there be any, what are the rights
of the sovereignty in them are questions which must be decided in
another form of proceeding, and are not subjected to the
jurisdiction of the commissioners or the court, by the act of
1851.
Some difficulty has been suggested as to the form of the survey.
The law directs that a survey shall be made and a plat returned of
all claims affirmed by the commissioners. And as the lines of this
land have not been fixed by public authority, their proper location
may be a matter of some difficulty. Under the Mexican government,
the survey was to be made or approved by the officer of the
government, and the party was not at liberty to give what form he
pleased to the grant. This precaution was necessary in order to
prevent the party from giving it such a form as would be
inconvenient to the adjoining public domain and impair its value.
The right which the Mexican government reserved to control this
survey passed, with all other public rights, to the United States,
and the survey must now be made under the authority of the United
States and in the form and divisions prescribed by law for surveys
in California, embracing the entire grant in one tract.
Upon the whole, it is the opinion of the Court that the claim of
the petitioner is valid, and ought to be confirmed. The decree of
the district court must therefore be reversed and the case remanded
with directions to the district court to enter a decree conformably
to this opinion.
Page 58 U. S. 566
MR. JUSTICE CATRON and MR. JUSTICE CAMPBELL dissented.
MR. JUSTICE CATRON dissenting.
On the 23d of February, 1844, Juan B. Alvarado petitioned the
governor, Micheltorrena, for ten leagues of land, alleging that the
tract which he then owned was not sufficient to support his stock
of cattle, and which he was desirous to increase. He at the same
time proposed to contribute to the spreading of the agriculture and
industry of the country. And he further declared that because of
the good intentions of the governor in favor of the improvements of
the country, the petitioner hoped for a favorable consideration of
his demand.
The governor referred the petition to the alcalde of San Jose,
who reported that the land was vacant, that the petitioner was
meritorious, and that there was no objection to making the grant.
In this report, Jimeno, the government secretary, concurred.
The governor declared the petitioner meritorious for his
patriotic services, and therefore worthy of a preference, and
accordingly, on the 29th of February, 1844, proceeded to grant to
Alvarado, for his personal benefit and that of his family, the
tract of land known by the name of Mariposas, to the extent of ten
square leagues, within the limits of the Snow Mountain, Sierra
Nevada, and the rivers known by the names of the Chanchilles, of
the Merced, and the San Joaquin,
"the necessary requirements, according to the provisions of the
laws and regulations having been previously complied with, subject
to the approbation of the departmental assembly and the following
conditions,"
that is to say:
"1. He shall not sell, alienate, nor mortgage the same, nor
subject it to taxes, entail, or other encumbrance."
"2. He may enclose it without obstructing the roads or the right
of way. He shall enjoy the same freely, without hindrance,
destining it to such use or cultivation as may best suit him, but
he shall build a house within a year, and it shall be
inhabited."
"3. He shall solicit from the proper magistrate the judicial
possession of the same by virtue of this grant, by whom the
boundaries shall be marked out on the limits of which he the
grantee shall place the proper landmarks."
"4. The tract of land granted is ten sitios de ganado mayor, ten
square leagues, as before mentioned. The magistrate who may give
the possession shall cause the same to be surveyed according to the
ordinance, the surplus remaining to the nation for the proper
use."
"5. Should he violate these conditions, he will lose his right
to the land and it will be subject to being denounced pretended for
by another. "
Page 58 U. S. 567
"Therefore I command that these presents being held firm and
binding, that the same be registered in the proper book, and
delivered to the party interested, for his security, and other
purposes."
The foregoing conditions, in effect, are imposed by the
colonization law of 1824, and the regulations made in pursuance
thereof by the chief executive of Mexico in 1828, both of which
were equally binding upon the territorial governors when they
exercised the granting power.
The concession, according to these laws, could only be made for
agricultural purposes and for raising cattle. Colonization was the
great object of the law of 1824, and to this end alone was its
execution prescribed and arranged by the regulations of 1828.
Much stress has been laid on the fact that, in the concession to
Alvarado, patriotic services are referred to as a reason why a
preference was given to the grantee in obtaining the land; that
preference was founded on the 8th section of the act of 1824, which
provides
"That in the distribution of lands, Mexican citizens are to be
attended to in preference, and no distinction shall be made among
these, except such only as is due to private merit and services
rendered to the country."
Private merit or public services could form no part of the
consideration for grants made for the purposes of grazing and
cultivating; nor had the governor of a territory power to grant for
any other purpose. The 11th section of the act of 1824 reserved the
power to the supreme executive to alienate lands in the territories
in favor of civil or military officers of the federation. This
grant, therefore, stands on the footing of others, and is subject
to the same conditions. Alvarado's petition, and the governor's
concession founded on it, must be taken together; they are a
necessary part of the contract between the applicant and the
government, under the colonization law of 1824, and the regulations
of 1828, which, with inconsiderable exceptions, remained in full
force when this concession was applied for and issued.
The government of the United States received the legal title to
the public lands in California by treaty, and encumbered under the
laws of nations with all the equitable rights of private property
therein, that they were subject to in the hands of Mexico at the
time of their transfer; and the question here is what interest in
the land claimed, Alvarado or his assignee had, when the treaty was
made? The consideration for the grant was a performance of its
leading conditions on the part of the grantee, the principal
condition being the inhabitation of the land in the manner and
within the time prescribed. As to the terms of this condition, the
regulations of 1828 declare that the party soliciting
Page 58 U. S. 568
for lands, shall describe, as distinctly as possible, by means
of a map, the land asked for; and a record shall be kept of the
petitions presented and grants made, with the maps of the lands
granted; and the governor was required, by the 11th rule of the
regulations, to designate to the colonist the time within which he
was bound to cultivate or occupy the land, "it being understood
that if he does not comply, the grant of the land shall remain
void," and by the 12th rule, the grantee was required to prove
before the municipal authority that he had cultivated or occupied,
so that a record should be made of the fact thus established, "in
order that he might consolidate and secure his right of ownership,
and have power to dispose freely of the land." Accordingly, certain
conditions were inserted in the grant as part of it, by the second
of which, the colonist was bound to build and inhabit a house on
the land granted, within one year. This was therefore the time
allowed from the date of the grant, for the fulfillment of the
important condition on which an equitable claim to it arose.
In this case, the land was granted to Alvarado in February,
1844, and three years after, he conveyed to Colonel Fremont, the
petitioner. No possession had been taken by Alvarado before that
time, nor any further act done to acquire a title, than the first
step of obtaining the concession; and if this step gave him an
equity to have a perfect title from the Mexican government, then
his equity is the same as against the United States.
In the first place, the 11th rule above cited declares that no
right accrues to the colonist unless he occupies the land; and in
the next place, the act of Congress of March 3, 1851, by the
authority of which we are acting, declares, ยง 11, that the board of
commissioners and the courts, deciding on California land claims,
shall be governed by the decisions of the Supreme Court of the
United States, so far as they are applicable.
By these decisions, it has been settled for many years, that a
Spanish concession, containing a condition of inhabitation and
cultivation, the performance of which is the consideration to be
paid for an ultimate perfect title, is void unless the condition
was performed within the time prescribed by the ordinances of
Spain. It was so held in the case of the
United
States v. Wiggins, 14 Pet. 350. And the opinion
then given was followed in the cases of
Buyck, 15
Pet. 222, and of
Delespine, 15
Pet. 319. But the rule was more distinctly laid down in the case of
the
United States v.
Boisdore, 11 How. 96. There the Court said:
"The grantee might have his land surveyed, or he might decline;
he might establish himself on the land, or decline; these acts
rested wholly in his discretion. But, if he failed to take
possession, and establish himself, he had no claim to a title; his
concession or
Page 58 U. S. 569
first decree, in such case, had no operation. So the supreme
court of Louisiana held, in
Lafayette v. Blanc, 3 La.Ann.
60, and, in our judgment, properly. There, the grantee never having
had actual possession under his concession, the court decided that
he could set up no claim to the land, at law or in equity. This
case followed
Hooter v. Tippett, 17 La. 109. We take it to
be undoubtedly true, that, if no actual possession was taken, under
a gratuitous concession, given for the purpose of cultivation, or
of raising cattle, during the existence of the Spanish government,
no equity was imposed on our government to give any consideration
or effect to such concession, or
requete."
The case of
Glenn v. United
States, 13 How. 259, maintains the same doctrine.
It was there declared that a promise of performance -- that is, to
inhabit and cultivate, on the part of Clamorgan, the grantee, was
the sole ground on which the Spanish commandant made the
concession; that actual performance, by cultivating the land, was
the consideration on which a complete title could issue, and that
so far from complying, Clamorgan never took a single step after his
concession was made, and in 1809 conveyed for the paltry sum of
fifteen hundred dollars, and, under these circumstances, says the
Court, we are called on to decide in his favor, according to the
principles of justice; this being the rule prescribed to us by the
act of 1824, and the Spanish regulations. The Court then declares
that the claim had no justice in it, and to allow it would be to
sanction an attempt at an extravagant speculation merely; referring
to
Boisdore's Case, as having established the principle
that occupation was indispensable, and the real consideration of
grants for purposes of inhabitation or cultivation.
But it is insisted here that no possession was taken of the
land, nor a survey of it made, because of the danger from hostile
Indians in its neighborhood. If this were a valid excuse, then on
the Indian borders grants would carry no substantial conditions
with them. The point is settled in the cases of
Kingsley,
12 Pet. 484, and of
De
Villemont, 13 How. 267, that where the hostility of
Indians was alleged as an excuse for not occupying the land, and it
appeared that the hostility existed when the grant was made, and
was merely continued, that then the grantee could not be permitted
to set up such an excuse.
Alvarado manifestly took the grant at his own risk, and if he
did not intend to perform the condition of inhabitation, or could
not do it, he must bear the consequences. To hold otherwise would
be to subvert the manifest design of the colonization laws of
Mexico by reserving indefinitely, to single individuals,
Page 58 U. S. 570
large bodies of uncultivated and unoccupied lands, in the
instance before us amounting to fifty thousand arpens.
It is, I think, impossible to exempt this claim from the settled
doctrine, that occupation is a consideration indispensable to its
validity. It is thus laid down in various instances, and especially
in the cases above cited, of
Boisdore, of
Glenn,
and of
De Villemont, nor can this claim be sustained,
unless they are overruled, and the act of Congress, declaring that
this Court is bound by them, disregarded. The district judge, who
rejected this claim in California, held that he could not do so,
and, in my opinion, held properly. I give the conclusion of his
opinion as it is found in the record.
"But in the case at bar, the time for making a settlement is
limited to one year. So far as appears, Alvarado never even saw the
tract he assumed to convey to Fremont, nor was any settlement
effected by the latter until a year after the ratification of the
treaty. It cannot be urged in this, as in other cases, that the
grant was not made complete by the assent of the assembly, owing to
accident or the neglect of the governor, for Alvarado himself says
it could not be submitted to them without the diseno, or plan,
which, on account of the hostilities of the Indians, he was unable
to furnish, and yet the danger from that source existed at the time
of his application, for he assigns it to the governor as a reason
why the diseno did not accompany the petition."
"It is urged that the political disturbances of the country
contributed to prevent the settlement; but I think it clear from
the evidence that the principal if not the only reason why it was
not effected by Alvarado or Fremont until after the treaty was the
danger from the savages, and that this danger existed to
substantially the same degree before and after the grant."
"Upon the whole, after a most careful consideration of this
case, and with every desire to give the claimant the full benefit
of every favorable consideration to which he is entitled, I have
been unable to resist the conclusion that the cases of
Glenn, of
De Villemont, and of
Boisdore
lay down for me rules of decision applicable to this case, and from
which I am not at liberty to depart."
2. The next question is whether a concession, which is in fact a
floating land warrant, seeking a location on any part of a large
region of country containing nine hundred square miles can be
confirmed by this Court, acting as it does of necessity in a
judicial capacity? The assumption thus to locate the ten leagues
asserts power in the claimant to have the land surveyed at his
discretion, either in a body or in single tracts, so that they
adjoin each other at any point of the respective surveys; in
the
Page 58 U. S. 571
latter form he did have them surveyed, and in this form of
location the grant was declared valid by the board of
commissioners.
I understand the Mexican laws as not to allow any such undefined
floating claims. It is impossible to recognize them under the act
of 1824, the object of which was to colonize particular tracts of
land.
By that act the petitioner was bound to describe the land asked
for "as distinctly as possible, by means of a map," according to
which it was granted, and next he was required to solicit from the
proper magistrate usually the alcalde of the next pueblo judicial
possession of the land described, and this magistrate was required
to survey and designate the boundaries, on the limits of which the
party interested was bound to place proper landmarks. Now that
Alvarado had no separate interest to any specific tract of land was
admitted on the argument, but it was insisted that he was, and his
assignee is, a tenant in common with the government in all the
country situate in a region called Mariposas, lying within the
limits of the Sierra Nevada, and the rivers known by the names of
Chanchilles, of the Merced, and the San Joaquin. In any part of
this large scope of country it is assumed the Mexican magistrate
and surveyor could have laid off the ten leagues, and that the
Surveyor General of California can do the same now.
This claim, standing on the concession alone, lost its binding
operation in one year, and became void if the land was not
designated within that time, unless the time was enlarged or new
conditions prescribed by the governor. So I understand the eleventh
rule of the regulations of 1828.
To hold that the Mexican government designed to leave in force
for an indefinite length of time large undefined concessions, that
might be surveyed at the election of the claimant at any time and
at any place, to the hindrance of colonization and to the
destruction of other interests, is an idea too extravagant to be
seriously entertained; so far from it, the Mexican colonization
laws contained more positive provisions, to the end of granting
distinct and known tracts of land to colonists, than did any
Spanish laws that have at any time been brought to the
consideration of this Court.
It is proper to remark that by the Mexican laws, an assignee
could not be put into possession of land by force of the first
decree or concession. Alvarado alone could apply for judicial
possession. By the 11th rule, a possession could be transferred
when it was duly proved and recorded; but the alcalde could not
recognize an assignee as a colonist, because by the 3d rule the
governor was bound to judge of the fitness of the candidate,
Page 58 U. S. 572
and having decided as to his fitness, the alcalde was held to an
execution of that decision, and could not recognize an
assignee.
We are here called on to award a patent for a floating claim of
fifty thousand arpens of land in the gold region of California, to
an assignee whose vendor claimed under the colonization laws of
Mexico, but who never was a colonist, who never did a single act
under his contract to colonize, and who, it is admitted, could not
have obtained a definite title from the political department of the
territory of California, to-wit, from the departmental assembly,
whose province it was to pass on and confirm grants to
colonists.
At law, this claim has no standing; it cannot be set up in an
ordinary judicial tribunal. It addresses itself to us as founded on
an equity incident to it by mere force of the contract, no part of
which was ever performed. The claim is as destitute of merit as it
can be, and has no equity in it; nor is it distinguishable from
that of Clamorgan, which was pronounced invalid in the case of
Glenn v. United States.
If this claim is maintained, all others must likewise be, if the
first step of making the concession is proved to have been
performed by the acting governor; as no balder case than the one
before us can exist in California, where the grant is not infected
with fraud or forgery.
And this presents a very grave consideration, affecting
preemption rights. The country in California is filled up with
inhabitants cultivating the valleys and best lands, and where they
rely almost as confidently on their government titles, founded on
acts of Congress, as if they had a patent for the land. No other
American title is known in the State of California, except such as
are founded on the preemption laws.
These agricultural people are quite as much contractors with the
United States as the Mexican grantees were contractors with their
government. By the Acts of March 3, 1853, and March 1, 1854,
Congress promised to each settler who was on the land March 1,
1854, or might settle on it within two years thereafter, 160 acres,
to include his residence, at one dollar and twenty-five cents an
acre. This was a policy to populate the country, which is yet in
progress. That these occupants have an equitable interest, and hold
the land as purchasers, is the settled doctrine of the department
of public lands, which exercises jurisdiction over them. Much of
labor and money has been expended on the faith that a preference
right was a safe title, and exempt from floating Mexican
concessions, such as that made to Alvarado, and now in litigation
here. And this was most natural. Incipient Mexican claims had no
standing in an ordinary court of justice, and Congress created
special courts to try them,
Page 58 U. S. 573
and prescribed the laws and rules by which these courts should
be governed in their adjudications; and among other rules it was
provided, that the decrees of the Supreme Court of the United
States should govern where they applied. They thus had given to
them the force of a legislative enactment. These decisions apply as
a governing rule most emphatically to the requirement of a specific
location of Spanish claims, to which the court had held litigants
with a strictness often complained of, but always necessary for the
protection of the public and its alienees; and it was the necessary
consequence that cultivators of the soil should believe themselves
safe from the ruin that lurks in a floating claim, familiar even to
western ploughmen, many of whom remember the history of exhausting
and fierce litigation in their own families for the paternal
hearth, and who relied on the firm and consistent decisions of this
Court to protect their new homes on the Pacific. Nor do I think
that any preemption right can be included in a survey of the
Alvarado claim, so as to make the preference right part of the land
belonging to the grant, because Col. Fremont's claim has never been
located, and our decree cannot disturb innocent owners until it is
located. It was so held by this Court, in the case of
Menard v.
Massey, 8 How. 309. And unless that case is
disregarded, one having a preference right cannot be deprived of
his possession by this floating claim.
MR. JUSTICE CAMPBELL, dissenting.
The concession, upon which the decree in favor of the United
States was pronounced, is for ten square leagues, to be located in
a district of country which contains above one hundred square
leagues. To the concession there is no plan or design to indicate
the place of location; nor was there any survey, delivery of
judicial possession, occupancy, or improvement, at any time prior
to the Treaty of Guadaloupe Hidalgo. The conditions to the validity
of a grant prescribed by the laws of colonization of Mexico, and
which were specifically annexed to the grant under consideration,
made these necessary.
The case of
Smith v. United
States, 10 Pet. 326, and many others where the
doctrine of that case was applied, is, in my opinion, conclusive of
this. The claim arose on a petition of St. Vrain to the
governor-general of Louisiana, in November, 1795, praying for a
grant, in full property to him and his heirs, of ten thousand
superficial arpens, with the special permission to locate in
separate pieces, upon different mines, of whatever nature they may
be, without obliging him to make a settlement, which grant, as
prayed for, was granted by the governor-general in February,
1796.
Page 58 U. S. 574
The Court in that case collects some of the principles which had
been employed by the Court in the settlement of claims under the
treaties of Florida and Louisiana. "We have held," they say,
"that, in ascertaining what titles would have been perfected if
no cession had been made to the United States, we must refer to the
general course of the law of Spain, to local usage and custom, and
not what might have been done by the special favor or arbitrary
power of the King or his officers."
"It has also been distinctly decided," they say,
"in the Florida cases, that the land claimed must have been
severed from the general domain of the King, by some grant which
gives it locality by its terms, by reference to some description,
or by a vague general grant, with an authority to locate afterwards
by survey, making it definite; which grant or authority to locate
must have been made before the treaty of cession -- that is, 24th
January, 1818"
The Court, then coming to the case under consideration,
describes it as a
"grant to vest in the petitioner a title in full property to all
the lands in the province containing minerals, which he might at
any time locate, in quantities to suit his own pleasure. . . . Its
condition at the cession was precisely as it was at the date of the
grant; there was no evidence that the grantee had done or offered
to do any act, or made any claim or demand, asserting or affirming
any right under the grant."
The Court said that, at the date of the surrender of
Louisiana,
"there was not an arpen on which his right had any local
habitation; until a location was made, it was a mere authority to
locate, which he might have exercised at his pleasure, both as to
time and place, by the agency of a public surveyor authorized to
separate lands from the royal domain by a survey pursuant to a
grant, warrant, or order of survey."
"At the time of the cession, nothing had been so severed, either
by a public or private surveyor, or any act done by which the King
could in any way be considered as a trustee for St. Vrain, for any
portion of the ten thousand arpens, and there was no spot in the
whole ceded territory in which he had, or could claim, an existing
right of property. An indispensable prerequisite to such right was
some act by which his grant would acquire such locality as to
attach to some spot; until this was done, the grant could by no
possibility have been perfected into a complete title. It is clear,
therefore, that the integrity of the public domain had in no way
been affected by this grant, in March, 1804, at the treaty of
cession."
Here was a grant "in full property" from the highest political
authority having the power to make grants -- without condition
Page 58 U. S. 575
or limitation as to the manner or time of the survey --
pronounced invalid, for the reason that, when the sovereign parted
with the territory, it had no definite location nor limit.
The concession now before the Court agrees with the one we have
considered, as being indefinite, attaching to no particular spot in
a large extent of territory. The Mexican Governor of California
declares it to be the property of the grantee by the letters then
issued, not in full property, but as "subject to the approbation of
the most excellent departmental assembly, and to conditions
underwritten." Among these conditions are those of a survey and
delivery of possession by a public officer, and occupancy and
improvement in a limited period. For very nearly four years, while
the land remained as the property of Mexico, no act was done, nor
right asserted to any portion of the ten square leagues, and
nothing was performed to distinguish them from any other part of
the public domain. The integrity of the public domain in this
district had never been disturbed at the Treaty of Guadaloupe
Hidalgo, even by a visit from the grantee.
The case of
Rutherford v. Greene's
Heirs, 2 Wheat. 196, does not conflict, in my
judgment, with the case I have cited. The question in that case
was, whether an act of a state legislature, appropriating a certain
number of acres in a particular district of country, "to be
allotted" by public officers named in the act, and, after that
allotment was perfected, whether it amounted to a legal or
equitable title, for the case was in chancery, to the particular
lot of land, against a claimant under a subsequent entry or
purchase from the state. To make that case parallel to this, the
claim of the grantee should have rested upon the general grant
only, without the completing process of the allotment. The analogy
fails, in respect to the present case, at the point where the
question of doubt is suggested.
In the case of
Smith, this Court considered the effect
of the acts of the grantee, performed after the treaty of cession,
towards locating the grant, and whether they had any relation back
to the date of the title, so as to unite with it and give
definiteness to it. And the Court said that the surveys must be
performed by public officers, under a legal authority, as a public
trust, and that this was the law of both the United States and of
Spain. And that the United States, having acquired the territory by
cession, were entitled to hold it discharged of all claims, where
the specific lands could not be identified by the description in
the grant, or a supplementary survey.
The doctrine of this case has been applied with uniformity by
this Court in a long series of cases, some of which with a degree
of strictness bordering upon severity.
Lecompte
v.
Page 58 U. S. 576
United States, 11 How. 119;
United
States v. King, 3 How. 773;
S.C.
48 U. S. 7 How.
833;
United States v.
Wiggins, 14 Pet. 334;
Bissell v.
Penrose, 8 How. 317.
The nonfulfillment of these conditions, it was competent to
Mexico to overlook or to forgive.
It is probable that, in the lax administration of her laws, in
the distant province of California, all investigation would have
been avoided, if the cession to the United States had not been
made. It is equally within the power of Congress to remit the
consequences attaching to the omissions, and to concede as a grace
what, in California, might have been yielded from indolence or
indulgence.
But Congress has chosen to deal with the subject of titles in
California, upon principles of law, embracing in that term the
whole body of jurisprudence applicable to the subject; and that the
solution of all the questions arising upon them shall be made by
courts of justice acting upon their fixed rules of judgment. Among
the guides it has directed us to follow are the decisions of this
Court in analogous cases. In my opinion, the cases I have cited
control this case, and I do not feel at liberty to depart from what
is to me their clear and manifest import.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of California, and was argued by counsel. On consideration
whereof, it is the opinion of this Court that the claim of the
petitioner to the land, as described and set forth in the record,
is a good and valid claim; whereupon it is now here ordered,
adjudged, and decreed by this Court that the decree of the said
district court in this cause be and the same is hereby reversed,
and that this cause be and the same is hereby remanded to the said
district court for further proceedings to be had therein, in
conformity to the opinion of this Court.
* NOTE BY THE REPORTER. The dates of these muniments of title
are as above, in the printed record. If there be an error, the
reporter has no means of knowing where it is.