Statement of the Case. Taos, New Mexico, embraced in what is designated as the Cebolla grant. The asserted grant was presented in 1872 for confirmation to the surveyor general of New Mexico, under the act of July 2, 1854, by John T. Graham and William Blackmore, who averred that they possessed a perfect title to the land covered by the grant, by reason of mesne conveyances from the original grantees. This claim so presented was favorably reported to Congress, but it does not appear that any action was taken thereon. Upon a survey made by the direction of the General Land Office in November, 1877, the area embraced in the alleged grant was declared to consist of 17,159.57 acres. The controversy now here for review was commenced by proceedings instituted in the Court of Private Land Claims to obtain a confirmation of this alleged grant. The petition to that end was filed on February 18, 1893, on behalf of the present appellees, who asserted that they were the owners of the Cebolla tract by purchase from the heirs and assigns of the original grantees. The alleged grant was asserted to have been made on December 31, 1845, by Manuel Armvjo, governor of New Mexico, and the papers claimed to evidence such grant, as translated, are reproduced in the margin.1 1 Seal Fourth. [SEAL] Two reales. Years one thousand eight hundred and forty-two and one thousand eight hundred and forty-three. Habilitated for the years one thousand eight hundred and forty-four and one thousand eight hundred and forty-five. Administrator AGUSTIN DURAN. Governor MANUEL ARMIJO. To his excellency Manuel Armijo, Governor of this Department of New Mexico: I, Carlos Santiste van, for myself and in the name of five other associates, all residents of the town of Dolores, in the district of Taos, before your excellency in due legal form, represent and state that finding without any land with title in fee to cultivate for the support of ourselves and our needy families, and having found a vacant tract very suitable tract for cultivation, irrigable from certain water, said to be from the Lama, quite sufficient for its irrigation, at the place called by that name up to another place, the Cebolla, which places are between the settlements of the Rio Colorado and San Cristoval, pertaining to the said district of Dolores de Taos, I ask and pray, from the well known and distinguished liberality of your excellency, that in the name of the high powers of our Mexican Republic, you be pleased to Statement of the Case. It was averred in the petition with respect to the survey above referred to, that it was not made in accordance with the boun make us a grant of the said tract; for the same is of very convenient size, and has ample water to be cultivated, and to afford sufficient support for the petitioners and their families, and would not injure any third party with respect to property or pasturage, or in any other way, but would rather result in the great welfare and increase of population and of agriculture; and, besides relieving the necessity of the petitioners, it will also strengthen that locality or frontier which guards the said population of the Rio Colorado, from which the said tract is distant but about one league, and from the settlement of San Cristoval somewhat more. Therefore I earnestly pray that your excellency be pleased to accede to this our petition. I declare and protest, etc. City of Santa Fé, December 31, 1845. At the disposition of your excellency. CARLOS SANTISTEVAN. SANTA FÉ, December 31, 1845. To the prefect of the district, that he ascertain whether the land applied for has an owner, and cause the corresponding justice to deliver the land referred to by the petitioner. ARMIJO. JUAN BAUTISTA VIGIL Y ALARID, Secretary. RIO ARRIBA, January 3, 1846. The justice of the peace to whom it corresponds to do so will investigate whether the tract the petitioners apply for is vacant, and whether any injury to a third party would result from the granting thereof; and, none resulting, he will proceed to grant them of the land an abundance of what each can cultivate, under the condition that they inclose the same with a regu lar fence, in order to prevent damages, and that they do not obstruct the roads, pastures and watering places, and with notice that they shall keep arms sufficient for their defense. D. LUCERO. In this, the third precinct, Dolores, of the district of Taos, on the twentieth day of the month of March, one thousand eight hundred and fortysix, I, Juan Lorenzo Martines, justice of the peace, by authority of law, for the said precinct, in pursuance of a decree of January 3, eighteen hundred and forty-six, by his honor Diego Lucero, prefect of the second district of the north, issued to me as the proper justice, that I investigate whether the land applied for by the five petitioners is vacant, and I, meeting no impediment, proceeded to the tract and, finding the same uncultivated and unoccupied, took the petitioners by the hand, and leading them very slowly and in full legal form, in virtue of holding competent authority, I placed them in possession of the land they pray for for cultivation, they being without land in fee, doing so in the name of God and of the Statement of the Case. daries set forth in the grant, but was "of a different portion of land, a part or all of which is included in the said grant." The high authority of our wise Mexican laws, which are sufficient to grant the public domain, to the end that idleness be banished and agriculture be encouraged. Wherefore they, at the instant they received their liberal donation and were favored in this manner, shouted with joy, saying huzza for the renowned sovereignty of the Mexican nation. And in this joy they plucked up grass and cast stones, as being lawful proprietors of the land which they wished to irrigate with the water of the valley of the Lama, as relying upon that small water source they had applied for the donation; and I therefore designate to them for limits: On the north, the boundaries of the Rio Colorado grant; on the south, to where the dividing line of San Cristoval is reached; on the east, the mountain, and on the west, the edge of the bluff of the Rio Del Norte, leaving the pastures, roads, and watering places free, eastwardly, from where they cannot irrigate; they not to prevent pasturing in virtue of being the possessors; and they are also obligated to inclose with a regular fence, so that they may not have to claim damages, and shall keep arms sufficient for their protection. And to the end that this grant may in all time subsist, I authenticate the same under the authority conferred upon me, with my attending witnesses, for the lack of a notary public, there being none in this department; and it is done on this common paper, there being none of the proper stamp, the new settlers binding themselves to supply the same of the proper stamp whenever they can opportunely procure it; to all of which I certify. J. LORENZO MARTINES. Attending: JUAN JOSÉ CORDOVA. NOTE. The persons placed in possession, with their full names, are those following in this list of names, made that they, for the sake of peace and good neighborhood, may in proportion to the tract divide among themselves the land I delivered them without measuring, owing to the very inclement day and the much thicket which impeded the cord; and they are in this list: Juan Carlos Santistevan, José Manuel Garcia, Julian Santistevan, Carlos Ortivis, Tomas Ortivis. Valid. Attending: JUAN JOSÉ CORdova. [RUBRIC.] Tomas Ortivis being of those placed in possession in this grant, at the foot of which this note is appended, he transfers to his brother Carlos Ortivis, all his rights in this grant; and he signed this before me, Lorenzo Martin, alcalde, and the said Tomas signed this with me this 7th April, 1850. LOR'O MARTIN, Alcalde. TOMAS ORTIVIS. X Attending: RAFAEL SISNEROS. Opinion of the Court. Court of Private Land Claims entered a decree, (Murray, J., dissenting,) defining the boundaries of the tract covered by the claim as allowed, and confirming title thereto in "the heirs and assigns of said five original grantees and to their heirs and assigns." The United States thereupon appealed to this court. Mr. Matthew G. Reynolds for the United States. Mr. Solic itor General and Mr. William H. Pope were on his brief. Mr. T. B. Catron for Elder. MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court. It is contended that the court below erred in confirming the alleged grant 1. Because the documents relied upon, assuming them to be genuine, do not show that a grant was made, for the reason that on their face they do not purport to be a grant by the governor of New Mexico; 2. Even if the papers can, on their face, be construed as importing a grant by the governor, the claimants were not entitled to confirmation, because there was no archive evidence of the alleged grant and no inscription of the same in the records of the former government; 3. That the governor of New Mexico was without authority to make a grant of public lands at the time the papers relied upon purport to have been executed; and 4. That even if it be conceded that the governor, at the time in question, had power to make a grant, and that the papers are held to be a manifestation of his purpose to do so, yet, be Carlos Ortivis being of those placed in possession under this grant, at the foot of which this note is appended, he transfers to the citizen José Gonzales his rights in the grant; and he signed this before two witnesses present; and he transferred his rights for the price of two dry cows, one cow with a calf and one yoke of oxen; which he signed with the witnesses this 29th of September, 1850. CARLOS ORTIVIS. X Witness: JosÉ MIGUEL PACHECO. Witness: JoSÉ BITOR VALES. X Opinion of the Court. cause of a failure to show compliance with essential conditions exacted by the Mexican law, the claimants have not established such a case as entitles them to a decree of confirmation. The matters embraced in the two last propositions involve legal questions of serious moment, which have been elaborately discussed at bar, but are unnecessary to be considered, if at all, until the subjects covered by the first two contentions are disposed of. Before approaching a consideration of the two first questions, which logically come under one head, we premise by stating that in order to justify the confirmation of a claim, under the act of March 3, 1891, c. 539, 26 Stat. 854, it is essential that the claimants establish, by a preponderance of the proof, the validity of their asserted title. United States v. Ortiz, 176 U. S. 422. To ascertain whether the papers relied upon constitute a grant of title to land, and to determine whether the existence of archive evidence of a grant is an essential prerequisite to the confirmation of the alleged title, it is necessary to briefly recapitulate the provisions of the Mexican colonization law of 1824 and the regulations of 1828 thereunder, and to review previous adjudications on the subject of the form required by Mexican law to manifest that the power to grant had been exercised. It is necessary to do this, since it is undoubted that although it be conceded that the governor of the Territory of New Mexico possessed power in 1845 and 1846 to make a grant of public lands situated within that territory, nevertheless the right to exercise such power as well as the documents by which it was essential to manifest the calling into play of the power, was derived from and was dependent upon the colonization law and the regulations thereunder just mentioned. The law of 1824 was enacted to provide for the colonization of vacant public lands, and the regulations were adopted for the purpose of executing the powers which the law conferred. Certain articles or sections of the regulations of 1828, to which we shall hereafter have occasion to refer, are printed in the margin.1 Excerpts from the Regulations of November 21, 1828 (Reynolds' Span. & Mex. Land Laws, pp. 141, et seq.); |