Arizona weekly citizen., 1892-03-12
U. S. LAND COURT.
Important Opinion in the Colorado
 Grant Case.
New Mexican.

grant," whose petition was filed ir the U $. court of private land claims on Wed nesday and demurred to by the U.
 attorney. the court, by Chief Justic,
 Reed, this morning rendered the follow ing opinion:
 This is proceeding under the Sth sec
 ton of the act approved March 5, 1891 creating this court, in which plaintiff
 seeks the confirmation off grant of land
 alleged to have been made by the gOver
 nor general of Mexico, to Rosalia Valdez
 and others. on the 25th day of June
 1739.
 4 demurrer has been interposed by
 the attorney for the United States, which
 in general terms raises the question a'
 to the suificiency of the allegations oi
 the petition. A number of special assign
 ments are also made, the first of which is
 that there is defect of parties.
 The petition alleges that the grantees
 under the grant were placed in possession
 of the land; the portions of which fit fol
 cultivation. were subsequently, divided by
 competent authority, among them, and
 their legal representatives, of whom
 plaintiff is one, are now in possession
 and that there are no known adverse
 claims.
 The petition is entitled, "The owners of
 the Plaza Colorado grant, plaintiffs, vs.
 the United States" It recites that the
 action is brought by Jose M. c. Chavez
 and the other owners of the grant, and 1t
 is signed by MT. Chavez for himself and
 the other owners; but none of the other
 parties are named in the pleading, or do
 they otherwise appear as parties to the action.
 If the fact that the parties are in pos session of portions of the land covered
 by the grant makes them necessary par ties to the proceeding, 1t must be admitted that the pleading is insufficient, for they are in no manner subjected to the juris- diction of the court, and would not be bound by any judgment or decree 1t might render But we are of the opinion that while they may be proper parties to the proceeding, they are not necessary parties to it. It is true that the 9th sec tion provides, that, ''the name or names of any person or persons in possession of (the land) or claiming the same, other wise than by leave or permission of the petitioner" shall be stated in the petition. And this provision standing alone would seem to require that all persons in pos session of any portion of the land, should be named, whether they are asserting right adverse to that claimed by the peti- tiOner. or were claiming under the same grant alleged by him. The only possible object, however, in naming them in the petition, would be to make them parties to the proceeding. But if they are to be made parties, they must, unless they join as plaintiffs, be served with process, and the subsequent prOvis- ions of the section provide only, for the service of process upon the attorney for the United States, and upon adverse claimants and possessors. So that when the two provisions are construed together as under familiar rules of construction, they must be, 1t is clear, we think, that the act contemplates that only such per sons in possession as are asserting an adverse right or interest, are necessary parties to the proceeding.
 The plaintiff, Chavez, alleges, in ef feet, that he is an owner Of a portion of the tract granted. In other words and in the language of Sth section, he IS claiming lands under title derived from the Spanish government, that was com plete and perfect at the date when the United States acquired sovereignty, etc. and we know of no reason why he may not prosecute his claim in his own name and right, independent of other parties. who may have d similar right to other portions of the land covered by the same grant. If the others in possession choose to u 9ite with him In prosecuting the claim, they doubtless nave the right to do so, otherwise the reference to them ln the petition as parties to the action may be treated as mere surplusage,
 Another objection to the petition specified Dy the demurrer IS that 1t does not comply with the first r2le of prac- tice. This objection is sustained. The of the rule that the cause shall be entitled in the name of the claimant as plaintiff against the United States, as defendant, was adopted as matter of convenience in the keeping of our records. It is reasonable and cas- fly complied with, and .wil. be enforced Tn all cases.
 Another ground of the demurrer is tLat, neither the particular form of the alleged grant nor its substance is stated in the petition. This ground of de- murrer is also sustained. The 9th sec- 5ion of the act, provides that the peti- tioner shall ''set forth fully the nature of theIr claims to the lands, and partlc- u iarly state the date and form of the grant, concession or order of survey un- der which they claim"
 While the nature of the plaintiffs claim is, perhaps, sufficiently stated in the petition, no attempt has been made 10 state its form; but it is alleged that 5i original grant papers are on file in the office of the surveyor general of this territory, and we are asked to send for them, and make them part of the peti- ton. But this does not meet the re- luirements of the statute or rules of Tie requirements of the statute will best be complied with by embodying in or at to the petition, as an exhibit, a copy of the grant or concession. If for any reason that can Tot be done its sub stance should be stated. But a mere -eference to the place where it may be ,ound is net sufficient, nor can the court be asked to order its production to enable party to complete his plead ing, except upon q showing that the of ieer having it in charge has refused a permit copy (which IS all that will be required for the purpose of pleading) to De made. Under section of the act, it s true we may require the officer hav- ng the looks and papers material to case, to produce them at session Of he court. But chat is for the purpose ,f the trial, rather than the making up ,f the issues.
 We take occasion also in this -connec- ion to call attention to the require pent of section 6, that map of the land l shall be filed with the petition, which | las not been compiled with in this case; slso to the requirement. that the petition | shall state whether the clam has ever | been confirmed, considered or acted up | ,n by congress. etc., in the same section. | The allegation that the claim has been recommended by the surveyor general or confirmation is not alone a compli- | lnce with that requirement..
 The assignment of demurrer most re- jed upon however, is the sixth, which is n substance, that, the petition does not