Sena v. United States

after making the foregoing statement, delivered the opinion of the court.

The petition of Leyba, upon which the grant was originally made, and which is the material document in this case, and is in the Spanish language, is thus translated in the record :

“ City of Santa Fé, May 24, ■ 1728, before the governor and captain general of this kingdom; there was presented this petition with its contents:

“ Joseph de Leyba, resident of the city of Santa Fé, appear before your excellency in due legal form, and state that in accordance with the royal ordinance of his Royal Majesty, I enter a piece of land and wood, vacant arid unsettled,, enough for half a fanega of corn-planting land, somewhat more or less, which is bounded on the east by the San Marcos road; on the

south by an arroyo called Cuesta del Oregano; on the west by land of Juan Garcia de las Eivas, and on the north by lands of Captain Sebastian de Yargas.

“ Therefore, I ask and pray, your excellency be pleased to make me in the name of His Majesty, a grant for the said piece of land, for myself and my children, heirs and successors, and that the act of royal possession be executed to me whereby I. will receive benefit and favor as well as justice which I seek. And I swear in due form that this my petition is not made in malice and as it may be necessary, etc.

“Joseph de Leyba.”

Annexed thereto is the grant of the governor and captain general of the province, with the condition that the grantees settle the land within the term prescribed by the royal ordinances, and a direction to the alcalde to put the party in possession.

Following this is the report of the chief alcalde of the city, of Santa Fé, that having taken witnesses and “ inspected the lands and woods prayed for by the .said petitioner,” he put him in royal possession by performing the customary ceremonies of livery of seizin.

There are two disputed propositions connected with this petition of Leyba’s : (1) As to the quantity of land granted; (2) as to its boundaries. It is admitted by both parties that the above translation from the record of the quantity of the land granted “ as a piece of land and wood, vacant and unsettled, enough for half a fanega of corn-planting land, somewhat more or less,” is' incorrect, the original Spanish being as follows: “ Registro un pedaso de tierras y monte, yermo y despoblado, que cabe media fanega de maíz de sembrad^ora,poco mas ó menos.”

The argument of the government is that the quantity covered by the grant was only enough land to plant half a fanega of corn, a little more or less, and that as a fanega de maiz is a measure of corn which will plant 8.82 acres, half of a fanega would measure, I.-11 acres; the government translation being “ I register a piece of land, and woods, Uncultivated and unsettled, that will contain half a fanega de maiz'de sembradura, a

The probabilities, aside from the fact that the word “cabe” is a verb of the present tense, favor the construction of the claimant, as the words “lands and woods” would hardly be used as descriptive of a tract of four and one half acres. In addition to that, however, the description of quantity is wholly inconsistent with the boundaries, (hereafter stated^) which evidently contemplated .a large tract of land, according to the Spanish and Mexican customs of making grants to settle. Indeed, a grant of four and one half acres of land at a distance, from any town, city or settlement is.so rare that the presumptions are all against it. If the boundaries were defined with accuracy, we should, have very little difficulty in holding that they would not be controlled by the vague description of “a parcel of land and woods, uncultivated and unsettled, which includes half a fanega of corn-planting land.”

This is the more apparent by an inspection of the subsequent documents, which include a will of Simon de Leyba, son of the grantee, of the year 1783, giving the boundaries of the tract, and a deed of Salvador Antonio de Leyba, grandson of José, to his son in 1834, also describing the lands by similar boundaries. Indeed, none of the subsequent documents make any reference whatever to the half fanega of corn-planting land. The will also contains a bequest, of live stock and farming tools seemingly appurtenant to the ranch and greatly in excess of what would naturally belong to a tract of four and a-half acres.

2. The difficulty, however, is with the description of the boundaries themselves, which is: “ On the east by the San Marcos road; on the south by an arroyo called Cuesta del Oregano; on the west by land of Juan Garcia de las Rivas, and on the north by lands of Captain Sebastian de Vargas.” In the will of Simon de Leyba of 1783 the boundaries are the same upon the south and east, and on the north “ the road which goes

The west boundary, which is described in the grant as “ the lands of Juan Garcia de las Rivas,” is described in the will of 1783 as “ the lands of the old Pueblo of the Cienega.” While there is some evidence from the archives that the father of Garcia de las Rivas, in 1701, owned a piece of land somewhere west of the Leyba. tract, known even then as the old Pueblo of la Cienega, there is nothing to show the east boundary of the Pueblo, and consequently the west boundary of the Leyba tract. The south boundary, said to be “ an arroyo called Cuesta del Oregano,” it seems to be impossible to locate with any degree' of certainty, though it was probably near the Coj'ote Spring, at which the only house built upon this tract appears to'have been located. This house long since fell into ruins, and there is no evidence that it has been occupied since the last owner of the grant, Juan Angel de Leyba, was supposed to have been killed by the Indians in 1839.

The evidence of possession subsequent to the grant does not afford much aid in fixing the boundaries, since the land, like most of that in Spanish-American territories, was not of a kind admitting of a well defined, actual and adverse possession, such as that of cultivated land. The most favorable view for petitioner that can be taken of this evidence is that possession of a house or a certain field of arable land may be referable to the entire tract included within the boundaries of the grant; but when the boundaries themselves aye indefinite, the. possession of a house is of no value in fixing the boundaries. A grant too

The grant was made and possession ivas given to the grantee in 1728. Nothing being shown to the contrary; we presume that the possession continued until 1783, the date of the will of Simon de Leyba, to his son Salvador Antonio de Leyba, “ whom' I recognize as my sole heir;” The next item of interest tending to show possession is the deed of' Salvador Antonio de Leyba in 1834 to his son Juan Angel de Leyba, who are both described as residents of the city of Santa Fé, wherein the same boundaries are also given, although the land is called “ the rancho of the Coyote Spring, with its hous.es and corrals, together with the grant in which the said ranch is situated, which was given to my grandfather by the King of Spain May 25, 1728.” Juan Angel appears to have been killed by Indians'a few years after this deed was made, but it seems to have been uncertain whether he was in actual possession of the tract.

To rebut the case made by the claimant the government offered in evidence the depositions of several residents of that neighborhood, who swore that they had never heard of the José de Leyba grant, or its boundaries!. Objection was made to the reading of these deposition's upon the ground that the witnesses named were present in court, and might be sworn orally! It is unnecessary to determine whether the court erred in admitting the depositions under such circumstances, in view of the vague and unsatisfactory evidencp oh behalf of the claimant of the-boundaries and possession of this tract.

Admitting that the documents introduced afforded a sufficient presumption of a continued possession from 1738 to 1834, there was no evidence-of the occupation of the land by 'any member of the Leyba family subsequent to 1839. This fact of

"While in construing these Spanish grants, owing to the loose, manner in which they were made, and the. boundaries described, we have been extremely liberal, still we are bound-to consider that grants of this description, as of all others, must be construed favorably to the government, and the grantee is bound to show not only the grant itself but that the boundaries were fixed with reasonable certainty. Slidell v. Grandjean, 111 U. S. 412 , 437; United States v. Oregon &c. R. R., 164 U. S. 526 , 539.

" 3. But conceding that an experienced surveyor, acquainted with the land in that neighborhood, might locate the boundaries of this tract, there is a still more serious difficulty in the evidence of abandonment and the laches of the claimant, which defences may properly be considered together. Under our Anglo-Saxon system of jurisprudence, questions of the abandonment of land by the owner rarely arise, since they are usually sold to a purchaser or to the State for' taxes ; but the Spanish law recognizes distinctly the right to abandonment. It is stated in 1 Partidas, Law 50, p. 365, that “if a man be dissatisfied with his immovable estate and abandons it, immediately he departs from it corporally, with an intention that it shall be no longer his, it will become the property of him who first enters thereon.” See also Hall’s Mexican Law, § 1489. The same-principle is stated by Escriche, Title “ Abandono de cosas : ”

As there is no testimony tending to show that the Leybas ever sought to resume possession of the land after the death of Juan Angel in 1839, there was at least a presumption of abandonment. Not only is there no evidence tending to show possession of the land- by representatives of the original grantee since 1839, but for sixty years thereafter there was no attempt made to assert title thereto. By section 7 of the Private Land Claims act, 26 Stat. 854 , “ all proceedings ” therein “ shall be conducted as near as may be according to the practice of the courts.of equity of the United States,” and by section 13 no claim shall be allowed upon an imperfect title unless “ the claimant would have had a lawful right to make it perfect had the territory not been acquired by the United States,” and it is one “ that the United States are bound, upon the principles of public law, or by the provisions of the treaty of cession, to respect and permit to become complete and perfect if the same was not at said date already complete and perfect.” While it is true that we have held that evidence of possession since the date .of the treaty cannot be regarded as an element going to make up a title, Crespin v. United States, 168 U. S. 208 ; Hayes v. United States, 170 U. S. 637 , 653; Hays v. United States, 175 U. S. 248 , 259, it does not follow that abandonment of the land and failure to assert a title since the treaty may not operate as a bar. It is clear that, in the establishment of a title as of a certain date, possession subsequent to that date

In United States v. Moore, 12 How. 209 , it was said of a Spanish grant in Louisiana: “We are called on to decide in this case according to the rules governing a court of equity,- and are bound to give due weight to lapse of time. The party was under no disability, and slept on his rights,-as he now claims them, .for nearly fifty, years, without taking a single step. . He makes' no excuse for his long delay, and cannot now get relief by having his title completed. No case has come within Our experience, where the obscurity and antiquity of the transaction more forcibly than in' the present case, required a court of equ-. ity to bar a complainant on legal presumptions founded on lapse of time; and where the bar should take the place óf individual belief.” To the same effect are Gildersleeve v. New Mexico Mining Co., 161 U. S. 573 , and United States v. Martinez, 184 U. S. 441 .

There are facts connected with this case which render the doctrine of laches peculiarly applicable. -This land passed into' the possession of the United States, under the treaty with Mexico of 1848. Possession of the land had then been abandoned-by the descendants of the grantees for at least nine years, and. probably longer. In 1854, six years after the treaty, a surveyor general was appointed for New Mexico, 10 Stat. 308 , whose duty it was to ascertain the'origin, nature, character and existence of all claims to lands under the laws, usages and customs of. Spain and Mexico, and report to Congress with a view of confirming Iona fide grants, and giving full effect to the treaty. No action appears to have been taken before him to ascertain the validity or boundaries of this grant, although the act seems to have remained in force until 1891, when the Court of Private Land Claims was created.- The public land surveys were extended over the tract in 1861; homestead and other entries were made, improvements established, patents secured, mines opened and developed, but no attempt made to assert the rights of the grantee or his descendants. The Court of Private Land Claims was established in 1891, and all persons having imper-

The decree of the court below is therefore

Affirmed.

(See note on page .504.)