CHAPTER XXVIII. PRIVATE LAND CLAIMS. MEXICAN GRANTS. 510. Four Classes of Grants; from the Crown of Spain. In the Treaty of Guadalupe Hidalgo; in the Gadsden Treaty; Grants in Arizona and New Mexico. § 511. § 510. Four Classes of Grants.-When a Mexican grant has for any reason been declared invalid, and the claim has been finally rejected, the land embraced therein becomes a part of the public domain, and may, after it has been declared open to entry, be acquired by individuals under the general laws of the United States. So, if upon a final survey and confirmation of a valid grant a portion of the land embraced within the boundaries should be rejected, the land thus rejected would become subject to sale under the laws of the United States. For these reasons it becomes necessary to consider very briefly in this chapter some of the great leading principles that govern the adjudication of titles through Mexican grants, and in the next chapter the laws that control surveys of the same. There are in the United States four classes of so-called Mexican grants: 1. Grants coming direct from the crown of Spain, prior to the independence of Mexico, of land then embraced in Mexican territory. These grants are very rare, and will not be separately considered here, except to refer to the case of the United States v. Percham, 7 Pet. 59. § 511. In the Treaty of Guadalupe Hidalgo; in the Gadsden Treaty; Grants in Arizona and New Mexico.-2. Grants (so-called) where the land, after certain preliminary proceedings, were put up at auction and sold to the highest bidder. In other words, they are executed contracts of purchase, instead of grants. They are confined to the land acquired under the Gadsden treaty, and are located principally in New Mexico and Arizona. The system provided by congress for the investigation of these titles is very simple, and as imperfect and inadequate as it is simple. It authorizes, and indeed makes it the duty of, each surveyor general" to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico." It requires him to investigate all claims which originated before the treaty of Guadalupe Hidalgo, and report his decision as to the validity or invalidity of the same to congress for its final action. 10 Stat. 309. This law was a grave mistake on the part of congress; no good, and many evil, results have followed its adoption. If there is any position in the government which requires eminent judicial ability, it is that which passes upon or makes recommendations in reference to these titles. This judicial ability is not usually found in the person of a surveyor general. When the decision of the surveyor general reaches congress many years elapse before any action can be obtained, and then it is usually (or has been thus far) the wrong kind of action. There are two instances known to the writer where congress has taken action on the recommendation of a surveyor general, both of which are in reference to land in New Mexico; one known as the Maxwell grant, and the other as the Cañon del Agua grant. In both these cases the secretary of the interior has recommended suit to be brought by the United States government to vacate the patents on the ground of fraud. In the Maxwell grant, Secretary Kirkwood seems to think, from the evidence before him, that about one million of acres in excess of what should have been included have been embraced in the grant. And there seems to be no legal remedy for these stupendous frauds, as the supreme court of the United States have held that neither that nor any other forum have any jurisdiction or power to set aside or inquire into any of the proceedings under this law, where, upon the decision or recommendation of a surveyor general, congress has confirmed one of these grants. Tamerling v. United States, 3 Otto, 644. The system is wholly bad, impolitic, unwise, and unjust, and I venture to say that the law should be repealed and these questions referred to the courts. § 512. 3. Alcalde Grants to Pueblo Lands.-By the laws of Spain and Mexico, pueblos or towns having a municipal government were invested with the ownership lands. Under the laws of the Indies, whenever a pueblo was formed, by a grant to the founder, or the union of ten or more families, or the foundation of a presidio, or the secularization of a mission, each pueblo was entitled in property to certain tracts of land within the limits of the town to be set apart by them, called commons, pasture grounds, and municipal land, by virtue of their organization as pueblos. Whether the Mexican government retained any power to make grants within the limits of a pueblo or not, the right of the pueblo to have the municipal and common lands assigned was an acknowledged equity, charged with which the United States government succeeded to the fee. The act of congress of 1851 operated as a grant to the pueblos of all lands within their limits vacant and ungranted on the seventh day of July, 1846. Welch v. Sullivan, 8 Cal. 165. A pueblo, when once legally established, became entitled to four square leagues of land, to be surveyed in the form of a square or quadrangle, and marked by boundaries which could be readily known, by official authority. Stevenson v. Bennett, 35 Cal. 424. This right might be forfeited unless presented to the land commission within the time prescribed. Stevenson v. Bennett, 35 Cal. 424. At the date of the conquest, San Francisco was a Mexican pueblo, and at any time after the conquest and before the adoption of the constitution of the state, an alcalde could make a valid grant of pueblo lands. Scott v. Dyer, 54 Cal. 430. Judges of the first instance, and in their absence alcaldes, possessed the municipal power to grant pueblo lands in California. Dewey v. Treawell, 16 Cal. 220; Welch v. Sullivan, 8 Id. 165; Cohas v. Raisin, 3 Id. 443. Alcalde grants were intended to be gifts and not sales; and when the grantee was required to pay a municipal tax or fee, its payment was not a condition precedent to the exercise of the granting power, nor did a failure to pay it defeat or invalidate the grant. Donner v. Palmer, 31 Cal. 500. § 513. 4. Grants under Colonization Laws of Mexico.-We now come to the fourth and last, and by far the most important, class of grants: those to governors of Mexican states under the colonization laws of the country. The authority to make these grants was lodged solely in the governor. It was not shared by him with the departmental assembly, although it was his duty to submit a grant to the said assembly, and afterwards, with the assembly's report, to the supreme government; but the neglect of this did not impair the estate of the grantee. It simply suspended his rights. After the action of the departmental assembly, whether of approval or disapproval, it became the duty of the governor to forward the necessary documents, with the report of the territorial deputation, to the supreme government, and until the approval of that government the grant was subject to be defeated. Ferris v. Coover, 10 Cal. 589. The granting of papers, or the papers which evidence the grant, are known in the Mexican law as the expediente. When complete, it consists of the petition, with the diseño or map attached, a marginal decree approving the petition, the order of reference to the proper officer for information, the report of that officer in conformity to the order, the decree of concession, and the copy or a duplicate of the grant. United States v. Knight, Adm'r, 1 Black, 247. There is a provision in all the treaties with Mexico to the effect that rights acquired under these grants shall be respected by the United States; and, indeed, they would be so respected and protected under the law of nations, in the absence of treaty stipulations. . People change their allegiance; their relations to their ancient sovereign may be dissolved; but their relations to each other and their rights of property remain undisturbed. United States v. Aredondo, 6 Pet.; United States v. Perchman, 7 Id. 59. The eighth article of the treaty of Guadalupe Hidalgo, which was adopted and incorporated into the Gadsden treaty by the fifth article of the latter, contains the following clauses: "In the said territories, property of every kind now belonging to Mexicans not established there shall be inviolably respected." "The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to the United States." Before a grant became definite under the Mexican law it was necessary that it should receive the approval of the departmental assembly, and that judicial possession should be given by survey. Miller v. Dale, 44 Cal. 562; Schmitt v. Giovanari, 43 Id. 617. Where there is a perfect Mexican or Spanish grant, no confirmation under the laws of the United States is necessary to vest title; but if the party holding it wishes a patent he must seek the same through a confirmation. A confirmation, however, in case of inchoate grants, is absolutely necessary, but in the mean time the party is entitled to the possession of the grant to its exterior boundaries, if it is for a specific quantity within the exterior limits of a larger tract, until confirmation and segregation by the government. Rich v. Maples, 33 Cal. 102. Since the act of congress of 1860, taking the surveys of Mexican grants from the executive department and placing it in the judicial, the final confirmation of a grant is the final judgment of the court on the question of location, and not the issuance of a patent. The decree has the force of res adjudicata against all persons, whether they intervened or not. Yates v. Smith, 38 Cal. 60; S. C. affirmed, 40 Id. 662. Where two grants were located on the same land in California, it was held that the patentee under the elder grant, though it was the last located and patented, had the better title. Bissell v. Henshaw, 18 Wall. 255. § 514. Perfect Grants; Inchoate Grants.-In order to convey title there must be a grantee, and where the grant is to John A. Sutter and twelve families, the legal title will pass to John A. Sutter alone. Ferris v. Coover, 10 Cal. 589. And it is equally important that the land should be so described in the grant that a survey and segregation of the same can be made from such description. A Spanish grant in Florida for six miles square," at the place called Dunn's Lake, upon the river St. Johns," was held to be too vague to be confirmed, even with the additional knowledge that the object of the grantee was to establish machinery to be propelled by water power. United States v. Lawton, 5 How. 10. Courts will take cognizance of all equities between the grantee and third parties in regard to the land granted; but a bill to set aside a judgment or decree for fraud will not be sustained, unless the facts constituting the fraud alleged were extrinsic and collateral to the matter tried, and not a fraud which was in issue in the former suit. United States v. Throckmorton, 8 Otto, 61. |