# Ainsa v. United States (161 U.S. 208)

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United States Supreme Court
161 U.S. 208
Ainsa v. United States
This was a proceeding on behalf of the United States, instituted by direction of the attorney general in the court of private land claims, under the third clause of section 8 of the act of March 3, 1891 (26 Stat. 854, c. 539). The petition alleged that defendants were asserting a claim to the premises in dispute under an alleged Mexican land grant by virtue of the treaty of December 30, 1853, known as the 'Gadsden Purchase,' and that the title of defendants, and each of them, was open to question in several particulars set out in the petition. And it was prayed that the defendants be notified to show cause why the alleged grant should not be declared null and void, and that the title to said land might be quieted, and forever settled, and for general relief.
Separate answers were filed by Santiago Ainsa, administrator of Frank Ely, and by Juan Pedro Camou and George H. Howard. Defendants admitted that they claimed the land as tenants in common, and each set up and pleaded his title, and asked confirmation of his claim. The New Mexico & Arizona Railroad Company claimed its right of way under them.
The answer of Camou and Howard stated, among other things:
'That, as appears and is shown from and in the said official survey, the minutes whereof are contained in the aforesaid testimonio, the form of the same was nearly square, the northern and southern boundaries conforming, of necessity, angularly with these of the Casita rancho and the Tumacacori and Calabazas tracts; that within the bounds, natural objects, and monuments set forth and established by the said official survey, there is an excess of about _____, more or less, some 4,631 hectaras, 21 aras, and 47 centiaras, or about _____ of such said excess, surplus, or demasias, being in that portion of grant lying and being in the state of Sonora, all of which is set forth and shown in the resurvey of the grant and plot thereof had and made A. D. 1886 by the Mexican government upon the petition of your petitioner, Camou, to purchase the said demasias that lay within the republic of Mexico; which said resurvey and plot thereof and the proceedings thereon, as well as the final sale and grants by the said republic of Mexico _____ petitioner Camou of the said demasias within the said republic, and a final recognition, expressly considered and given, of the aforesaid original grant to _____, made A. D. 1843 by the treasurer general of the department of Sonora, are contained, shown, and set forth in the duly-authenticated original testimonio, which was made and delivered unto the said Camou by the said republic as complete and final evidence of title, a copy of which is filed herein and herewith, marked as 'Exhibit B."
Camou also filed an amended answer, which alleged that the tract in question had been duly located and recorded in the archives of Mexico prior to the 25th of September, referred to in article 6 of the Gadsden treaty, and that his grantors and predecessors in interest, who were the owners of the grant at the time of the adoption of the treaty of Guadalupe Hidalgo and of the Gadsden treaty, were Mexicans, and citizens of the republic of Mexico, and further alleged that the validity of the grant was examined into by the United States surveyor general for Arizona, who made a report thereon, a certified copy whereof, dated February 25, 1881, was made part of his answer. This report states that the grant was 'for the exact quantity of seven and one-half square leagues and two short caballerias, notwithstanding the petition was for the vacant land lying between the northern boundary of Casita and the western boundary of Rancho Tumacacori'; that the survey 'fixed the quantity at exactly seven and one-half square leagues and two short caballerias'; and that 'after survey every act in the proceedings up to and including the formal execution of the grant was upon the basis of the exact quantity as certained by survey.' The surveyor general called attention to the importance attached by the Mexican government to the quantity or area of grants of land as shown by the action of the procurator fiscal, hereinafter referred to, in correcting the error of the appraisers in omitting to value the two short caballerias, which, being done, 'the grant was executed for the definite quantity heretofore stated.' In his opinion, as the petition showed that the petitioner wanted the vacant land bounded on the south by the Casita and northerly by the Calabazas, without special reference to other boundaries, the claim should be made to bind those ranchos with the easterly and westerly lines so established as to include exactly 7 1/2 square leagues and 2 caballerias, and he recommended confirmation of so much of the claim as should be found in Arizona on a survey made as thus indicated.
Upon the trial the court ruled that the object of the proceeding by the government was simply to bring in the parties in order that the claimants' title might be confirmed if it were found that their grant was valid; that, moreover, the defendants had prayed for such confirmation; and that the burden of proof was upon the defendants. They thereupon offered in evidence a titulo of the land in question, entitled 'Title to seven and one-half sitios and two short caballerias of land for raising cattle and horses, contained in the vacant public lands between the north boundary of the ranch of Casita and the west boundary of the mission of Tumacacori and Calabazas, in the upper Pima country, issued to Don Jos e Elias and his parents, Don Francisco Gonzalez and Dona Balvanera Redondo, residents of the town of Imuris.' From this it appeared, although the petition is not in the record, that May 6, 1841, Don Jos e Elias and his parents applied 'for the resurvey of the lands of the ranch of Casita, of which they are the owners and possessors, and which are situated in the jurisdiction of the town of Imuris, and also for the survey, appraisement, and publication of the vacant public lands which they say they need.' This part of the application is also described in the proceedings as being 'for the survey, appraisement, and publication, offer and sale of seven and one-half sitios and two short caballerias of land for raising cattle and horses, which comprise the vacant public lands situated between the north boundary of the ranch of Casita and the west boundary of the mission of Tumacacori and Calabazas, in the upper Pima country, in the district of San Ignacio.' The application was granted by the superior board of the treasury department of Sonora, May 22, 1841, and a resurvey of the ranch of Casita was ordered, as also a survey of the public lands sought to be purchased; and the order directed that separate expedientes should be made of both operations. This action of the board was certified to the superior chief of the treasury, May 26, 1841, who on that day commissioned Don Francisco Navamuel to make the surveys. He was directed to resurvey for Don Jos e Elias and his parents the lands of Casita, 'giving them the area or number of sitios that legally belong to them, with due separation of the sitio or sitios that result in excess within the lawful boundaries of said lands of Casita. And at the same time said commissioner shall execute, in separate expedientes, the proper survey, appraisement, and publication of the vacant public lands the parties in interest apply for, after the indispensable judicial information which said commissioner, under his own strictest responsibility, shall cause to be taken before a competent judge, and shall aggregate to the original proceedings, and which shall be that of three impartial, capable, and upright witnesses of practical intelligence, by which it is legally and sufficiently proved that the parties in interest need such vacant public lands, and have an abundance of stock to stock them with.' The commissioner was required to act in strict compliance with the laws of Sonora of May 20, 1825, and July 11, 1834, and to adjust the sitio or sitios contained in the lands of Casita, their overplus, if any, and the vacant public lands, strictly by the regulations, giving to each sitio the area of 25,000,000 square varas; and he was cautioned, as soon as the operations as to the excess or overplus resulting within the lawful boundaries of Casita were completed, that that excess should not be published, but appraised in accordance with article 2 of decree No. 51 of May 12, 1835. The commissioner procured evidence that Gonzales and his wife had four thousand head of cattle, more or less, and proceeded to resurvey the ranch of Casita, and then to survey the vacant public lands. As to this survey he reported that he started at the north cross monument of Casita, and directed himself 'along the public road that goes toward the north to the presidio of Tubac,' 340 cords (17,000 varas), 'which ended on the high road, in a flat, where a wide canyon that comes down from the slope of the Pajarito Mountains terminates,' where he ordered a monument placed; 'that of Calabazas being about a thousand steps further on, on a high hillock, which slopes down on the other side of said canyon.' 'Having asked the party how he wanted the land squared, he replied that he wanted twenty cords to the east; and thereupon they were measured for him twenty-two (22) cords from the monument which is in the high road, in a straight line, guided by the compass, to a hillock that has many oak trees on its slope, and on the summit a pile of stones was placed as a monument.' Having returned to the cross monument on the high road, the commissioner measured west 50 cords (2,500 varas), where he 'reached very broken ground, which it was impossible to measure with the cord,' when he 'made a scrupulous estimate, together with my assistants, of one hundred and fifty cords, until I arrived to where the Pajarito Mountains turned to the north, near the place they call 'Calaveras,' said Pajarito Mountains having been crossed and within the land surveyed; and there I ordered the party to place a pile of stones as a corner monument.' He then returned to the place of beginning, and measured east 22 cords (1,100 varas), 'which ended upon some hillocks at the trunk of an oak tree, where a pile of stones was placed,' and from the same point he measured and estimated 'in several stretches of rough ground, towards the west, two hundred (200) cords, which ended on a whitish ridge that has considerable pasture, near the so-called 'Planchas de Plata,' which ridge divides the streams that flow towards the ranch of Agua Caliente and those that go towards Agua Zarca. Thus the south boundary was closed with another two hundred and twenty-two (222) cords, and is limited there by the ranch of Casita. In this manner was terminated the survey of the wacant public lands, which include seven and one-half sitios, and the party, when it was made known to him, was satisfied, and understood the area it incloses, and was warned to place, at the first opportunity, fixed monuments of stone and mortar.' The land was then appraised, according to the state law of Sonora, at the minimum price of $15 per sitio, the amount being put at $112, 4 reals; and publication was ordered in accordance with that law for 30 consecutive days, by the public crier, 'in solicitation of bidders who may make a better valuation.' The last publication was on December 10, 1841, when proceedings were suspended, on account of the absence of Don Jos e Elias, Until November 28, 1842, when they were referred, as required by the law of Sonora, to the attorney general of the treasury, who reviewed the same, and reported thereon that the survey was 340 cords from the north to the south and 222 cords from east to west, which, reduced to varas, and multiplied, gave 188,700,000 square varas, making 'seven and one-half sitios and two caballerias, a little short, for raising cattle'; that the appraisement made no account of the two short caballerias, which were of the value of 5 reals 10 grains at the rate of $15 per sitio, for which reason the total value should be $113, 1 real, and 10 grains; and recommended a sale 'of said seven and one-half sitios and two short caballerias of public land for raising cattle and horses, included between the north boundary of the ranch of Casita and the west boundary of the mission of Tumacacori and Calabazas,' to the highest bidder on three public offers. This was so ordered January 5, 1843, and after three public offers, January 5th, 6th, and 7th, sale was made to Don Jos e Elias and his parents. The description of the land offered was in these words: 'There are going to be sold, on account of the public treasury of the department, seven and one-half sitios and two short caballerias of land for raising cattle and horses, contained in the vacant public lands situated between the boundaries of Casita and those of the mission of Tumacacori and Calabazas, in the upper Pima country.' In the third publication the translation uses, instead of the words, 'contained in the vacant public lands,' the words, 'comprising the vacant public lands,' and this difference of phraseology appears in several of the proceedings; that is, sometimes the 7 1/2 sitios are described as contained in the vacant public lands, and sometimes as comprising the vacant public lands. The documents in Spanish were not sent up.
The titulo then recites the receipt of $113, 1 real, and 10 grains, and that in the provisional memorandum book of receipts for the current year the receipt of that sum, 'being the value of seven and one-half sitios and two short caballerias of land for raising cattle and horses, contained in the vacant public lands between the boundaries of Casita and those of the mission of Tumacacori and Calabazas, in the upper Pima country,' was entered. Thereupon the treasurer of the department of Sonora, at Arizpe, on January 7, 1843, executed the grant as follows: 'Therefore, by virtue of the authority which the laws, regulations and superior orders that govern in the matter confer on me, by these presents, in the name of the Mexican nation, I grant, in due form of law, seven and one-half sitios and two short caballerias of land for raising cattle and horses, contained in the vacant public lands situated between the boundaries of Casita and those of the mission of Tumacacori and Calabazas, in the upper Pima country, in the district of San Ignacio, to Don Jos e Elias, and to his parents, Don Francisco Gonzales and Dona Balvanera Redondo, residents of the town of Imuris, in said district, to whom I cede, give, and adjudicate said lands, by way of sale, and with all the requisites, stability, and permanence the laws establish, for themselves, their children, heirs, and successors, etc.'
Appended to the titulo appeared the following certificate, signed by the chief clerk, which was offered in evidence by the defendants as a part thereof: 'By supreme resolution of this day, the adjudication of the land referred to in the title issued on the 7th of January, 1843, is approved, under the provisions of article 3 of the law of December 3, 1855, and it is therefore legally confirmed. And in witness thereof, and for the purposes that may be necessary, this indorsement is made in the department of public works, in Mexico, on the 7th of July, 1886.'
A memorandum was introduced in evidence, showing that the Toma de Razon or record book of land titles of Sonora contained an entry that on January 7, 1943, there was issued a title of grant for 7 1/2 sitios and 2 short caballerias of land for breeding cattle and horses, contained in or comprising the vacant public lands situated between the north boundaries of Ranch La Casita and the western boundary of the mission of Tumacacori and Calabazas, in favor of Don Jos e Elias and his parents. It was admitted that certain field notes and a plat thereto attached were made in December, 1891, by a surveyor, now deceased, named Oury, and that, if living and present, he would testify that said field notes and plat contained a survey of the claim according to the natural objects and others descriptions contained in the original survey; that total area being 78,868.34 acres, of which 25,899.09 were in the United States. These field notes and map were introduced in evidence.
The testimony on behalf of the United States tended to show that by accurate measurement commencing at the north cross monument of the ranch La Casita, and measuring north along the Tubac road 340 cords of 50 varas each, the measurement would terminate in the republic of Mexico 3.54 cords-something over 412 feet-south of the line between Mexico and the United States; and that according to Oury's survey there were within the exterior boundaries named in the titulo and within the boundaries of Mexico 12.21 sitios, or about 52,969.25 acres, and within the exterior boundaries and within the United States 5.96 sitios, making in the aggregate 18.17 sitios within the exterior boundaries, or 78,868 acres, and that 7 1/2 sitios contained 32,744 acres.
There was also evidence to the effect, as sufficiently stated by counsel for the United States, that none of the monuments referred to in the titulo are now in existence, and that the monuments now found on the southern boundary of the grant, being the south cross monument, the southeast monument, and the southwest monument, have been recently constructed and are new monuments; that the so-called north cross monument consists of a mound of earth and pebbles about 18 inches high and 10 or 12 feet in diameter, on top of which is a stone 11 or 12 inches square, on which is marked 'N de E N X,' and has not the appearance of being a monument, but appears more like an ant hill; and about 20 steps from this is a similar mound, except the stone; and that the northeast monument is a recently constructed pile of stone, without mortar, about 4 feet in diameter, built in circular shape; that the southwest corner is not where it ought to be as described by the titulo, and that no such place as Calaveras, named as one of the calls for the northwest corner, was known in that part of the country.
The United States also offered in evidence a transcript of the expediente referred to in the answer of Camou and Howard, being the same proceedings resulting in the order of July 7, 1886, a certificate of which was indorsed on the titulo, and introduced in evidence by all of the defendants.
From these proceedings it appeared that on August 11, 1882, Don Jos e Camou, Jr., through whom defendants Camou and Howard and others claimed, presented to the district judge at Hermosillo a petition alleging that he was a Mexican citizen, and that he was the owner of the ranch known as 'Los Nogales de Elias,' situated on the boundary line of Mexico and the United States, between the ranches La Casita, Tumacacori, and Calabazas, the overplus of which he denounced and sought to purchase under article 8 of a general law of July 22, 1863, 'with the understanding that if the other coproprietors of said ranch of 'Nogales' desire to share in this overplus, I do not object that the adjudication may be made in favor of all the owners thereof in the proportion to which they are entitled, provided they contribute to the expenses of the same.' On August 17, 1882, it was ordered by the district judge of Sonora that the denouncement above referred to be admitted, and citizen Rosas was appointed as commissioner with instructions to resurvey the ranch called 'Los Nogales de Elias' for the overplus so applied for, and he was required to report the true area of the ranch and the overplus of the same, if any, and was required to proceed under the law of July 20 and August 2, 1863. It was further recited that Rosas, in compliance with the order of the district judge, notified the parties in interest and the owners of the adjoining lands, and proceeded to a resurvey of the ranch according to its exterior boundaries as described in the titulo of the grant, and found within such exterior boundaries and monuments an excess within the republic of Mexico of 4,631 hectares, 21 aras, and 47 centiaras (or 2.64 sitios, being 11,443.73 acres) over and above the 7 1/2 sitios sold in 1843. The report of this survey was made to the district judge, and by him referred to the chief of the treasury acting as attorney general, who advised that said excess be adjudicated to Jos e Camou, Jr., subject to the approval of the board of public works, to which the matter was referred. That board required further explanation of the survey, which was made by Rosas on January 15, 1886, and thereafter the district judge was directed to suspend 'approval of the adjudication until it becomes known whether or not it prejudices the growing town of Nogales, and likewise until the validity and legality of the title under which it is pretended to hold said ranch is established,' in respect of which there was reason to entertain doubt, because the titulo of ownership issued to Don Jos e Elias in the city of Arizpe by the departmental treasurer of Sonora, January 7, 1843, disclosed the fact 'that the origin of the property or the original title was vicious and null, as the sale was made and the title issued by a departmental treasurer, and in the year 1842, when the bases of Tacubaya were in force,-that is, when the national government was not only central, but dictatorial,-which two circumstances give the title in question the character of manifest nullity.'
The objections appear to have been obviated, among other things, by securing from the president of the republic of Mexico the order of July 7, 1886, already referred to, and, the whole matter being again remitted to the district judge, the surplus was regularly adjudicated to Jos e Camou, Jr., who paid therefor the value, fixed at $555.74, and costs.
The court of private land claims held that under the original proceedings the right of the grantees was limited to the specific amount of land mentioned in the proclamation of sale and the grant; that the grant was for a specific quantity, and by its express language the quantity was made the controlling matter of the description; and that the intent of the granting officer to reserve to the government the excess over the amount granted within the boundaries, was as clearly manifested as it could have been made by a reservation in express language; and that, even though a grant such as the court held this to be was unknown to the Mexican law, still what was actually effected was to be determined by the language made use of, and that the power of the officers to do what they did do need not be inquired into; that while a parallelogram 340 cords in height and 222 cords in width, measured from the point designated by the commissioner as the cardinal point of survey, would be partly within the territory of Arizona and partly within the state of Sonora, yet that the grant was specific as to quantity, but not as to location, and the only effect of the proceedings was to designate certain boundaries within which the quantity of lands granted was to be located; that, of necessity, the location was to be determined by subsequent action, but no action was ever taken. The conclusion was that, at the time of the treaty of cession, the grant had not been located within the meaning of that instrument, and hence, by its express terms, could not now be recognized as of any validity; and that it was not such a grant as by the terms of the treaty the United States was bound to recognize and confirm, which, by the terms of the act creating the court, was the test of the rights of the parties.
The court of private land claims entered a decree 'that the defendants, or either or any one of them, take nothing by their claim of lands lying north of the international boundary line between the United States and Mexico, and that the claims of the various defendants as made in their answers are hereby declared without merit, and are disallowed.' From this decree an appeal was prosecuted to this court.
Some definitions and explanations may properly be added to the foregoing statement.
A vara equals 32.9927 inches; a cordel, 137.95 feet, or 50 varas; a sitio contains 4,338.464 acres; a caballeria, 105.75 acres; a hectare, 2.471 acres; a 'sitio de ganado menor,' or sheep ranch, 1,928.133 acres. An expediente is a complete statement of every step taken in the proceedings, and a testimonio is the first copy of the expediente. A grant of final title papers is attached to the testimonio and delivered to the grantee as evidence of title, and entry is made at the time in a book called the 'Toma de Razon,' which identifies the grantee, date of the grant, and property granted. The dictionaries define 'tomar razon,' 'to register, to take a memorandum of, to make a record of a thing,' and 'Toma de Razon,' 'memorandum book.' The Gadsden purchase added a strip along the southern boundary of the territory of New Mexico, and Arizona was detached, and made a separate territory in 1863, within which strip and territory the land in controversy is situated.
Rochester Ford, for appellants.
Sol. Gen. Conrad, Matt. G. Reynolds, and L. F. Parker, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

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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