Crespin v. United States

after stating the case, delivered the opinion of the court.

. The principal question urged upon the attention of the court in this case is whether, under the laws of Mexico, as they existed in 1840, it was within the power of a prefect to make a grant of public lands.

In endeavoring to ascertain what were, the laws of Mexico at any particular time, of which we are bound to táke judicial notice, Fremont v. United States, 17 How. 542 , 557; Romero v. United States, 1 Wall. 721 , we are somewhat embarrassed by the frequency with which the government was changed — usually by revolutionary violence — between the time the Republic gained its independence in 1821 and the treaty of Guadalupe Hidalgo in 1848, under which the northern provinces of Mexico were ceded to the United States. These changes were sometimes accompanied by decrees annulling the acts of previous governments, cancelling grants, and putting new regulations in force with respect to the disposition of public lands. That these difficulties are of long standing is evident from the comments of Chief Justice Marshall in the case of Soulard v. United States, 4 Pet. 511 , in which the court announced itself as unable to form a satisfactory judgment by reason of its inability to obtain proper information with regard to the laws and principles upon which the transfer of Spanish titles depended, and therefore postponed the final disposition of the case until such information could be obtained.

In view of this and similar difficulties, this court, as early as 1832, in United States v. Arredondo, 6 Pet. 691 , laid down as a general proposition that the grant itself was prima facie evidence of its own validity, and that it would be presumed to have been regularly issued until the contrary appeared, or such reasons were offered for doubting its authenticity as were sufficient in law to rebut the legal presumption. To

The courts of California have carried this principle so far as to hold, though apparently with some fluctuation of opinion, that a grant of a pueblo lot made by an alcalde raises a presumption that the alcalde was a proper qualified officer; that he had authority to make the grant, and that the land was within the boundaries of the pueblo. Reynolds v. West, 1 California, 322; Cohas v. Raisin, 3 California, 443; Hart v. Burnett, 15 California, 530; Payne v. Treadwell, 16 California, 220; Leese v. Clarke, 18 California, 535; Donner v. Palmer, 31 California, 500.

In considering their methods of disposing of public lands, this court has had frequent occasion to uphold the validity of grants made by the Governors of the Spanish and Mexican provinces, who appear to have been sometimes also called “Political Chiefs.” Indeed under the regulations for the colonization of the Mexican territories of November 21, 1828, the political chiefs were expressly authorized to grant the public lands of their respective territories. Reynolds’ Land Laws, 141; United States v. Workman, 1 Wall. 745 , 761; Hornsby v. United States, 10 Wall. 224 , 231; Vanderslice v. Hanks, 3 California, 27; Leese v. Clarke, 3 California, 17; Leese v. Clarke, 18 California, 535, 546; but see Jones v. Garza, 11 Texas, 186. A similar power seems also to have been vested in the Spanish intendants. Reynolds’ Land Laws, 59, 60 ; United States v. Clarke, 8 Pet. 436 , 452.

Prefects were functionaries well known in the Roman law, and under the empire were clothed with extensive powers, both judicial and administrative. With the decline of the empire they seem to have lost their importance and to have finally disappeared; but, after remaining in abeyance for some hundreds of years after its fall, the office was revived in the eighth year of the French Republic, (1800,) and bestowed upon the heads of the departments into which the country had bee,, divided by the National Assembly in 1790. In the perform-

By the law of March 20, 1837, for regulating provisionally the interior governments of the departments, it is provided, by article one, that “ the interior government of the departments shall be in charge of the governors, departmental councils, (juntas,) prefects, sub-prefects, common councils, alcaldes and justices of the peace ”; that ■ it shall be the duty of the governors to appoint the prefects, etc. The power of the prefects is thus defined: Article 77 : “ They shall regulate administratively and in conformity with the laws, the distribution of the common lands (tierras comunes), in the towns of the district, provided there is no litigation pending with regard to them, the right being reserved to the parties in interest to apply to the governor, who, without further appeal, shall decide what is most proper, with the concurrence of the departmental council (junta).” Reynolds, 221. This is the only act to which our attention is called which defines their functions.

It is difficult to say exactly what is meant by the poAver “to regulate administratively” the distribution of the common lands in the toAvns of the district. But it would not seem to include the power to make grants of public lands generally, though it might have justified in this case the special allotment {hijuela) to Yicente ■ Sanaora, had it been made by the prefect. The power given to the governor to

Plaintiffs’ counsel offered to show in this connection that other grants had been made by prefects, which had been recognized and confirmed by the proper Mexican authorities, and that several such grants had been confirmed by the Congress of the United States ; but they were not regarded by the court below as sufficient to establish a general custom to recognize grants made by prefects as valid and-legal. Indeed, the power given to prefects to regulate administratively the distribution of the common lands would seem to presuppose a prior grant to the pueblo, made by a higher authority, and to have been intended merely to authorize the prefect to make distribution of such common lands among the inhabitants of the pueblo.

The only case we have been able to find in which the power of prefects to make grants of public lands is discussed is that of Ohm v. San Francisco, 92 California, 437. In that case the complaint alleged that the State of California was, prior to. July 13, 1848, a political department of the Republic of Mexico, and was subdivided into pueblos, constituting political municipalities, supplied with such officials as the republic or governor chose to appointthat. such officers could grant and distribute lands of the municipalities; that the pueblo of Yerba Buena, or San Francisco, was one of such municipalities, and was provided with a prefect appointed by the Republic and the governor of California, who was empowered, among other things, to make a grant and distribution of lands to private persons in fee within his district and said municipality. It seems that the grant in this case had been

The rarity of the question involved, and the special familiarity of the Supreme Court of California with Spanish and Mexican land grants, will justify a somewhat lengthy transcription from its opinion concerning the power of prefects : “ We cannot find,” said the court on page 451, “ in any of the laws or ordinances of Spain and Mexico to which we have been referred any authority conferred upon • prefects to make-grants in fee of the pueblo lands. It is not contained in the decree of the Spanish Cortes of January 4, 1813, nor in the plan of Pitic, nor in the Mexican law of colonization of 1824, nor in the regulations of 1828, nor, we think, in the law of March 20, 1837, to which the prefect himself refers as the source of his authority. The clause of this act, cited and relied on by the appellant, is given in the original Spanish and in translation, at page 314, addenda, Dwinelle’s Colonial History of San Francisco. In terms, it merely authorizes the prefects in their respective districts to ‘ regulate executively ’ the distribution of the common lands of the pueblos, provided there are no law suits pending in the courts concerning them, saving a right of appeal to the governor. The law writers do not agree in their construction of this article. Dwinelle thinks it conferred authority to make grants of the pueblo lands for the pueblo. Halleck thinks that.it merely conferred a power to regulate the temporary use of the common lands. This court has decided that it did not expressly confer power to grant lands in private ownership. Hart v. Burnett, 15 Cal. 572 . As a matter of history it is known that the prefects very rarely attempted to exercise such power, not more than two or three instances, including this grant to Scherrebeck, appearing in the records of San Francisco, and one of those subsequent to the conquest, by Horace Hawes. It is also well known as a fact- and as matter of law that the claim of such power by the prefects has been repudiated by the city from the beginning. The complaint here shows that the validity

In the case under consideration there was no evidence, that the' grant of the prefect ever received the sanction or approval of the governor, the ayuntamiento, (town council,) or other superior authority of the Mexican Republic ; and we do not think the fact that similar grants may have been confirmed by Congress, or received the approval of the Mexican authorities, is decisive in favor of recognizing its validity. In its adjudication of these cases, the Court of Private Land Claims is subject to certain statutory restrictions upon which previous confirmations by Congress of imperfect grants have no proper bearing. Rio Arriba Co. v. United States, 167 U. S. 298 , 308. We are of opinion that it was beyond the power of the prefect to make the grant in. question.

Nor do we think that petitioners are entitled to this grant by prescription or adverse possession, since under section thirteen of the act creating the Court of Private Land Claims* the title to the land must have been “ lawfully and regularly derived from the government of Spain or Mexico,” and one which, if not complete and perfect at the date of the acquisition of the property by the United States, “the claimant

The disposition we have made of this case renders it unnecessary to consider whether the document offered in evidence to establish the plaintiffs’ title, which was neither the expediente, nor the testimonio, or official copy thereof — and was merely an unsworn and unverified copy of the testimonio — was admissible at all.-

If there be any hardship to the petitioners in the rejection of this grant, they must apply for relief to another department of the Government. We are bound by the language of the act creating the Court of Private Land Claims. Its decree in this case was correct, and it is therefore

Affirmed.