# United States v. Vallejo (66 U.S. 541)/Opinion of the Court

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United States Supreme Court
66 U.S. 541
United States v. Vallejo
This is an appeal from a decree of the District Court of the United States for the northern district of California.
The claim of Vallejo and his assigns covers a tract of land known by the name of Suscol, in the county of Solano, California, bounded on the north by lands named Tulucay and Suisun, on the east and south by the Straits of Carquines, Ysla del a Yegua, and the Estero de Napa, without any limitation as to quantity, and embraces from ninety to one hundred thousand acres, including Mare Island, on which the United States have established their navy-yard on the Pacific, and the city of Benicia, situate on the bay of San Francisco. Two grants of the tract to Vallejo were given in evidence-one a colonization grant, dated 15th March, 1843, and the other a grant founded on a sale for the consideration of $5,000, dated 19th June, 1844. Both grants purport to be signed by Micheltorena, Governor, and Francisco Arce, Secretary ad interim.
From a letter of Micheltorena to Vallejo, 16th March, 1843, one day after the date of the colonization grant, in which he states that he transmits to him a title for the place named Suscol, and that he accepts the offer to pay $5,000 for the same, it is reasonable to conclude that the colonization grant was intended to be founded on the contract of sale; and doubting, perhaps, that the grant could not be maintained in this form, the second was executed without any reference to the colonization laws.
A paper purporting to be a decree for the formal approval of these two grants by the Departmental Assembly, dated 26th September, 1845, and signed by Pio Pico, and Jose Ma. Covarrubias, Secretary, is in the record, but there is no evidence of its genuineness. It seems to have been given up as spurious.
The evidence of possession and cultivation is slight. Indeed, considering the magnitude of the tract granted, it is entitled to very little weight. As the grants were dated 1843 and 1844, and the country taken possession of by this Government in 1846, there could be but two or three years' possession or occupation under them at the time of our taking possession. The evidence that Vallejo occupied and cultivated the tract previous to the grants, which, of itself, is slight and unsatisfactory, is still further weakened by the fact, which is shown, that the ranch had been occupied by the claimant as a military commandant with soldiers and Government property.
The witnesses, who speak of the possession as early as 1841, might very readily have confounded this possession for the uses of the Government with a possession for Vallejo himself. We can give very little weight to a possession so limited as to duration and in extent, when offered in support of a grant of ninety or one hundred thousand acres of land. If the grant cannot be maintained by its own force and effect, this possession will scarcely uphold it. Coming then to the grants, we may as well lay aside the first one, the colonization grant, at once, as entirely defective within the law of 1824 and the regulations of 1828. The only document in evidence is the naked grant itself. It would be a waste of time, after the numerous cases in this court on these titles, to go over the objections to this source of title.
The next is the grant founded on the sale, and which is the only one entitled to consideration.
The main objection to this grant is the want of power in the Governor to make it; and this raises the question, whether or not the Governor possessed any power to make grants of the public lands independently of that conferred by the act of 1824 and the regulations of 1828.
The Mexican Congress, after the country had thrown off the government of Spain, and had erected a new and an independent government in its place, representing the sovereign power of the nation, passed the law of 1824 providing for the grant and colonization of the public lands.
The second section provides that the lands of the nation, which are not the property of any individual, corporation, or town, are the subject of this law, and may be colonized. Section third: For this purpose the Congress of the States shall, with the least delay, enact laws and regulations for colonizing within their respective boundaries, conforming in all respects to the constitutive act, the general constitution, and the rules established in this law.
The act then prohibits the colonization of any lands within twenty leagues bordering on any foreign nation, or within ten leagues of the sea-coast, without the consent of the supreme government; and further, that in the distribution of the lands preference is to be given to Mexican citizens; that no person shall be allowed to obtain a grant of more than eleven leagues; and that no person who may obtain a grant under the law shall retain it if he resides out of the limits of the republic.
The sixteenth section then provides, that the Executive shall proceed, in conformity with the principles established in this law, to the colonization of the Territories of the republic.
The Supreme Executive Government, acting under the above sixteenth section, on the 21st November, 1828, established regulations for the granting and colonization of the public lands in the Territories, and, among others, in California.
The first section declares, 'that the political chiefs (the Governors) of the Territories are hereby authorized to grant vacant lands within their respective Territories,' 'to either Mexicans or foreigners who may petition for them, with the object of cultivation or settlement. Said grants shall be made according to the laws of the general Congress of 18th August, 1824, and under their qualifications.'
Then follows a series of preliminary proceedings, specially enjoined for the purpose of ascertaining the fitness of the petitioner to receive a grant, and also of ascertaining if the land asked for may be granted without prejudice to the public or individuals; and it is declared, in view of these, the Governor will grant or not the land; but if the grant is made, it must be in strict conformity with the laws upon the subject, and especially with reference to the law of 1824; and the grants made to individuals or families shall not be definitively valid without the previous consent of the Departmental Assembly.
Section eighth. The grant petitioned for having been definitively made, a patent, signed by the Governor, shall be issued, which shall serve as a title to the party, expressing therein that the grant has been made in strict accordance with the provisions of the law, by virtue of which possession shall be taken; and section nine, of all petitions and grants a record shall be made in a book kept for that purpose, with the plats of the land granted.
There are many other stringent provisions and conditions imposed which it is not important to refer to specially; it is sufficient to say, that the system thus established by the sovereign power of the nation for the grant and distribution of the public lands, exhibits a deliberation and care over the subject that is in striking contrast with the system of granting the public lands under our Government, and furnishes the highest evidence of the extreme interes the Mexican Government took in guarding against impositions and frauds, by or upon the political chiefs in the execution of the law.
Now, the above are the only laws of the Mexican Congress passed on the subject of granting the public lands, with the exception of those relating to the missions and towns, which have no bearing upon the question. No others have been produced on the argument, nor have our researches found any, nor were any others discovered by the public agents which were authorized by this Government to inquire particularly into the subject. (See Halleck's Rep., March 1, 1849, Exec. Doc., 1st Sess. 31st Cong., p. 119; Jone's Rep., April 10, 1850, Senate Doc., 2d Sess. 31st Cong., p. 18; see also Calif. 3 Rep., pp. 23, 24, 25; ib., 37, 38; 20 How., 63; 21 ib., 177; 23 ib., 315; 24 ib., 349.)
The ground taken to uphold this grant concedes that no other power has been conferred upon the Governor by any express act of the Mexican Congress; but it is insisted that the law of 1824, and regulations of 1828, did not repeal the power, if it previously existed, to make a grant of the public lands by sale for a pecuniary consideration; and the decree of the Spanish Cortes, of January, 1813, is referred to as confirming that authority.
But any one looking into this law will see that it provides for a very different system of disposing of these lands from that found in the Mexican law of 1824, and the regulations of 1828; and unless specifically recognised or excepted, would necessarily be repealed as repugnant and inconsistent with the system adopted. After providing for the reduction of the public lands to private ownership in the way and with the qualifications stated, the act declares, that half of the vacant and crown lands of the monarchy shall be reserved as a security for the payment of the national debt, and of those to whom the nation is indebted, who are inhabitants of villages to which the lands are adjacent; and provision is made for the distribution of them to the public creditors belonging to these villages; also for distribution among the officers and soldiers of the army; and then provides, that the location of these tracts shall be made by a board of magistrates of the villages to which the lands are adjacent, and the proceedings are afterwards to be sent to the provincial deputation for approval.
The law then provides for grants of the residue of the vacant or crown lands to every inhabitant of the villages who ask for them for the purpose of cultivation, and has no land of his own. The patents are to be made by a board of magistrates free of charge, and the provincial delegation are to approve of them. The decree was to be published not only among all the people of the kingdom, but among the national armies, and in every way, so that it might come to the knowledge of all the subjects.
This law may be very properly referred to as the foundation and source of many titles to the public lands in the Mexican Government, and also of titles in the province or Territory of California, if any were derived under it during the authority of the Spanish Government. The change of Government would not affect them. But grants made after this change, and the establishment of a new and independent Government, present a very different question. Grants under this law were to be made to the creditors, officers, and soldiers of the old Government. They were called rewards for patriotism, and were not to be extended to individuals other than those who may serve or who have served in the present war, (was between the Emperor Napoleon and Spain then existing,) or in quelling disturbances in some of the provinces beyond sea. Individuals, not military men, who had served in their districts, or contributed in any other way in this war, or in the disturbances in America, and who were injured or crippled, or disabled in battle, were included in the grants to be made. Serious disturbances existed in the vice-royalty of Mexico at this time, arising out of revolutionary struggles, headed by Hidalgo Morelos and Bravo. One of the objects of the law was to compensate and encourage the defenders of the mother Government against these revolutionary movements.
Without pursuing the inquiry further, we think it quite clear that this law could not have been in force after the change of Government, unless expressly recognised by the Mexican Congress; and not then, without being first essentially modified in its policy and purposes; and certainly, unless thus modified, and the power in express terms conferred on the political chiefs of the Territories to grant the public lands on sale, no such power can be derived from its provisions.
There are other serious objections to this claim. It is directed in the title-paper that a 'note be made of it in the respective book;' and the Secretary ad interim declares at the foot of the grant, 'note has been made of this title in the respective book.' The grant, as we have seen, was made 19th June, 1844. The book of records of that year is in existence, and in good condition. No record was made of the title. The note of the Secretary is untrue. It was well said, in The United States vs. Sutter, (21 How., 175,) that 'in every well-regulated Government the deeds of its officers, conveying parts of the public domain, are registered or enrolled, to furnish permanent evidence to its grantees of the origin of their title.' An exemplification of such a record is admissible as evidence of the same dignity as of the grant itself. (5 Peters, 233; 15 How., 1.)
This rule exists in States which have adopted the civil law. In those States the deed is preserved in the archives, and copies are given as authentic acts-that is, acts which have a certain and accredited authority and merit confidence. The acts thus preserved are public instruments, and all doubts that arise upon the copies that may be delivered are resolved by a reference to the protocol from which the copies are taken, and without which they have no authority.
We add, it is important, also, that a record should be made of these grants, so that the Government may be advised in respect to the portions of the public domain that have been sold or disposed of, and as a security against the frauds of the public officers upon whom the power of making the grants has been conferred. Grants of this description, when made in due and orderly form, are either made at the seat of government, where the public records are kept, and a record can be readily made, or, if signed by the public officer residing at a different place, are not deemed grants till the proper record is made.
Without this guard, the officers making the grants, as, in the present instance, the Governor and Secretary, would be enabled to carry with them in their travels blank forms, and dispose of the public domain at will, leaving the Government without the means of information on the subject till the grant is produced from the pocket of the grantee.
Without pursuing the examination further, in every view we have been able to take of the case, we are satisfied that the grant is one that should not be confirmed, and we shall order the judgment below to be reversed, and the record remitted to the court to enter judgment for the United States.
The Chief Justice, Mr. Justice Catron, Mr. Justice Clifford, and Mr. Justice Swayne, concurred in the opinion of Mr. Justice Nelson.
Decree of the District Court reversed and record remitted, with a mandate ordering that the claimant's petition be dismissed.

## Notes

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