Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-04-28

DaIpUV, UiNG C6Ilulhiy 2SVeiSt 'A''"N
TONS forever. True, those proceedings
do not estop party claiming the same
land under prior grant from the Mexl-
can government. But, to succeed in his
claim. he must recover on the strength OIL
his own title. In other words, he must
establish the validity OF his own grant in
order to defeat subsequent grant which
has been adudged valid in proper legal
proceedings. The confirmation and
patenting of tie grant to Beaubien
and Miranda operated to divest the
United States OF all their rights to
the land embraced in the grant which
this country acquired from Mexico
by the treaty of Guadalupe Hidalgo. And
the only way that that grant can be de-
feated now is to show that the lands en-
braced in it had been previously granted
by the Mexican government to some 9th
er person.
This leads naturally to the considera-
ton of the nature and extent OF the grant
to Royuela and Beales in 1882, which is
the foundation OF the appellants title. On
the one hand it is contended that the con-
tract of the states of Coahuila and Texas
with the empresarios operated as grant of
the fee to the contractors of all the land
described in the instruments OF
title, subject to be defeated only by the
failure OF the empresarios to perform the
conditions subsequent of the grant; that
the performance OF those conditions be-
came impossible by reason Of the fact that
one of the grantor states engaged in open
war with the Republic of Mexico, and
achieved its independence prior to the
time within which such performance was
required and that the grant was thereby
relieved of those conditions and became
absolute. The tract thus claimed en-
braces about 60000,000 acres. On the
part of the defendant it is insisted that
the conditions Of the grant were precedent,
and that, therefore, no title passed to the
contractors until those conditions were
performed; and that, in no event, under
the contract, could the empresarios have
acquired title to the whole body OF land
described, even if all the conditions had
been performed. In other words, it is
said that the grant IN question operated
simply to designate large tract of coun-
try within which the empresarios might
establish colony or colonies; that no til
tie to any land passed to them until such
colony was established; that if colony
was established, the colonists were to be
supplied with land taken from this large
body of land that the amount OF land to
which the empresarois would be entitled,
upon the establishment of colony, WAS
to be determined by the number of fami-
lies introduced by them, and must-also be
! taken from this large body OF land; and
that, OF necessity, those premium lands,
of the contractors, as they were called,
must be of less quantity than the grant
as designated by its outboundaries.
The Circuit Court adoped, substantial
t ly, the views OF the defendant. In this
we think the court was correct. In fact,
the opinion Of the learned Judge who pre-
{ sided on the hearing of the case is a COM
: prehensive and exhaustive review of the
3 case, as presented by the original bill and
: demurrer, and leaves little to be said on
the questions then presented. A few OBJ
q servations, we think, will de nonstrate
/ the correctness of that conclusion. In
: constituting the instruments of title, refer
Q erence must be had to all parts of them,
Q The mere fact that the word grant" is
:. used many times in them, sometimes ap-
!. perently in its general and unrestricted
. sense OF conveyance of title, ought not
& to be permitted to outweigh other parts
e of the instruments which clearly negative
v that idea. Referring to the first article
e of the conditions of the grant," its len
e guage is found to be as follows "The
s government accepts the proposal made in
n the foregoing petition as far as it is con-
formable with the laws of colonization
j nassed by the honorable Congress of the
Q State on the twenty-fourth of March, one
l. thousand eight hundred and twenty-five,
a and consequently assigns to the petit
# TONERS the tract of land included within
S the following limits, that they may estab-
Q llsh thereon the proposed colony" etc.
n AS was well remarked by Judge Brewer,
i this article may be considered as most
+ nearly like the granting clause in an ordi-
i nary deed" Now, does it in any sense
n purport to convey the fee in the lands
}, specified to the:empresarios? We think
s not. The government "assigns" to the
Q contractors!the tract of land described.
!, But did it do so absolutely? Certainly
+ not; but for aparticular purpose, viz the
q the establishment thereon of colony.
!, The establishment of colony was the
t consideration for the assignment. And if,
D as is contended, the empresarios thereby
9 became possessed of the fee to.that vast
4 region of country, where were the colon
: lists provided for? Where were they to
y get lands? An answer to these questions
3 shows at once the fallacy of the appel
: lant's position. Again, that idea is Who'll
/ ly inconsistent with article 5, which pro-
) vides that "the state retains to itself the
> right of property over all the surplus lands
t which shall remain of this grant, after
laying off those which belong to the en-
presarios and their settlers, according to
, the laws in that behalf provided" How
, could there be any surplus lands if the
. empresarios got all of them? That sec
ton, if it eansanything at all, clearly
, negatives the appellants contention, and
is in complete harmony with the law of
1925 to which we shall presently refer.
But furthermore, the proposition of the
) petition OF the petitioners was accepted,
and the assignment was made "as far as
1t is (was) conformable with the laws of
colonization passed by the honorable Con-
gress of the State on the Gath of March,
1926" To ascertain with precision the
meaning of the contract, it's terms must
be read in the light of that act. It is
found in Rockwell's Spanish and Next
can Law, p. GAL, and consists of 4S arti-
cles. The articles bearing particularly
+ upon the question under consideration,
are as follows:
Art. 8. The projects for new settle
ments, in which one or more persons Of
fer to bring at their expense one hundred
or more families, shall be presented to
/ the government, and if found conforma-
BILE with this law they shall be admitted:
and the government will Immediately des-
ignate to the contractors the land where
they are to establish themselves, and the
term of six years, within which they must
present the number of families they con-
tracted for, under the penalty of losing