# Hornsby v. United States/Dissent Davis

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Davis
United States Supreme Court
77 U.S. 224
Hornsby v. United States
Mr. Justice DAVIS, with whom concurred CLIFFORD and SWAYNE, JJ., dissenting.
I am unable to concur in the decree of the court in this case, and as the claim embraces a large tract of country which is a part of the public domain, if this claim is not sustainable, I think it proper to state as briefly as possible the grounds of my dissent. Similar claims have been so frequently before the court, that any extended discussion of the general rules of law applicable to them is not necessary, as these rules have been so often explained in our reported decisions. It is clear that valid claims should be confirmed, and equally clear that those of a contrary character should be rejected. Tested by the rules of law established by this court in analogous cases, I am of opinion that the claim of the appellants is invalid. The Mexican authority was overthrown in California on the 7th of July, 1846, but the history of the times made it clear to every intelligent man for a considerable period before this date, that the country would pass to the jurisdiction of the United States. During this period grants of land were made very freely by Pio Pico, the acting governor, and the records of this court show that many of these grants were invalid and fraudulent. Doubtless, grants were made by him within that time which were valid, but all must agree, I think, that every grant which bears his signature should be examined with the most careful scrutiny. By the record in this case, it appears that the petition for this grant is dated the 5th day of May, 1846, and the grant, if any were made, was on the following day, and did not comply with the requirements of the law conferring power on the Governor of California to grant lands. The Mexican law, to make a title valid, required it to be evidenced by certain written instruments which taken together constitute an expediente. The expediente, when complete (as decided by this court), consisted of a petition, with a diseno or map annexed; a marginal decree referring the petition to a local officer to report whether the land was vacant and grantable, and the petitioner a proper person to obtain the bounty of the government; the report of that officer on these subjects, called an informe; the decree of concession and the copy or duplicate of the grant, as the original was delivered to the petitioner. It was in express terms required by the Mexican law, that the petitions for lands, and the grants, with maps annexed, should be recorded. It was insisted that the papers which were produced in this case before the commissioners, constituted such an expediente, but if it be conceded the papers are of Mexican authority, they do not contain any diseno or map, or reference to the local officer, or his report thereon. There could be no record of the petition and grant with the map of the land granted, because no map of any kind was annexed to the petition, and there is no evidence in the record that any part of the expediente was recorded as required by Mexican law. Grants of this kind were made subject to the approval of the departmental assembly, but there is nothing to show an attempt, even, to comply with this requirement. On the contrary, there is every reason to conclude that it never was presented to that assembly, as it is well known that there were a large number of grants made about that time which were presented and approved, and as this one was not approved, the inference is fair and reasonable that it was never presented for approval. It also appears that no judicial measurement of the land was made, nor possession of it taken by the supposed grantees, as required by the Mexican law, and the conditions of the grant.
The documents offered in evidence are not shown by any competent proof to be Mexican documents. The court in its opinion describes them as having been produced from the public archives, and this statement might create the impression that the expediente under consideration came from the Mexican archives. This cannot be so, as the number of the expediente proves beyond a doubt that it is one of those papers found in the custom-house at Monterey the latter part of the year 1847, or the fore part of the year 1848, which were subsequently included in Hartnell's Index.
This index is not, and never has been regarded as a Mexican document. Since the decision of Castro's case, this court, until now, as I suppose, has adhered to the principle, that whoever claims title to land in California under a grant from a Mexican governor, must, as a general rule, produce the grant and show that it came from the public archives of land titles in the proper office of that department, or that it was found in Jimeno's Index, or that it was recorded in the Toma de Razon. It is true, in that case, Chief Justice Taney said that secondary evidence could be received, when it appeared that the grant had been properly made, and that the papers, or some of them, in the office where they were kept, had been lost or mislaid, but the court held, that a party setting up a grant by such proofs, must also show that there was a judicial survey of the land, and that the supposed grantees took actual possession of it, and exercised acts of ownership over it, before the change of jurisdiction. There are a number of cases in which the same rule is laid down (some of earlier and others of later date than Castro's case), and it seems to me they ought to control the decision of this case.
No possession of any kind is proved in this case, and the authenticity of this grant, covering an area of over forty thousand acres of land, depends on the testimony of a single witness, unsupported by any proof, except the imperfect or mutilated expediente, found among a mass of loose papers on the floor of one of the rooms of the custom-house at Monterey, after the Mexican officials had fled, on the approach of our forces.
Possession is essential in such a case to establish an equity, and as none is proved, the claimant has no equity, and in my judgment the decree ought to be affirmed.

## Notes

* ↑ Knight's Case, 1 Black, 228.
* ↑ Knight's Case, supra.
* ↑ 24 Howard, 349.
* ↑ The United States v. Cambuston, 20 Howard, 59; United States v. Fuentes, 22 Id. 445; United States v. Bolton, 23 Id. 341; White v. United States, 1 Wallace, 660; United States v. Pico, 2 Id. 279.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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