Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1892-12-17

IN our view InlS regulation Oh li0t, III Z
connection with law II, referred to, is an
ex press recognition of the rule, that title |
to lands in the midas could be obtained, |
good as against the crown, by what was |
trmed just prescription.
Further referring to the regulation of
1754 section required that notice
should be given to all persons holding
lands under titles originating subsequent
to the year 100 and up the time of the
issuing of the regulation, equiring them
to exhibit their titles and show by what
right they hold their lands, and provided
that this notice should warn them that
they would be deprived of their lands, if,
without just cause, they failed to exhibit
their warrants within the time limited.
Section 4, provided, that those who held
lands by titles issued prior to 100, should
be in no way molested and that their
titles should be confirmed without inves-
tigation. Section 5. provided that these
persons holding land by titles issued sub
seuuent to 17O0 which had not been con-
tirmed by the tribunals or officers design
ated for that purpose, should exhibit
them, and that the tribunals mentioned
should investigate them and the bona
|
and value of the land, and determine
whether or not the titles so issued should
be confirmed. Sections 7 and s, pro-
vided that the notice mentioned should
also have Incorporated the fact that re-
wards would be given to those who should
| inform OF lands occupied without legal
title and that portion of lands so oc-
cuped, would be adjudged to those who
! should inform against them, and that the
| lands so held would be restored to the
crown for the purpose of being re-
granted.
We think, that from review of these
provisions of the regulation of l754,
taken as a whole, it was recognized by the
crown at that time that the legal title to
| land could be taken from the crown by
what was called a just prescription. This
renders it necessary to inquire what was
meant by just prescription.
The rules upon this sub ect are fully laid
down in the civil law of Spain, which we
find in 1st White, beginning at page 81;
it says: Prescription is to hold the pro-
perty or thing of another for certain
length of time and to make it thereby
ones own, so that the rightful owner
|
To constitute prescription
good faith, just title, and capacity of the
thing for the purpose and the persons
who prescribes, are necessary, as also con-
tinued and uninterrupted possession for
q determinate time. Goodfalth
consists in the possessor believing that
the person from whom he received the
thing had the right to alien or transfer
1t. Just title consists in the
cause or consideration by which posses
sion of the the thing is obtained being
one of those by reason of which dominion
is acquired, as purchase, gift, inheritance,
etc.
We find also further provisions as to
the time in which things were prescribed
as against the crown. The time IN
which things are prescribed is compre-
hended under two kinds of prescription,
immemorial and temporal. The last is
proved by witnesses of good fame and
character, who depose to having seen the
person in possession of the thing or prop
erty forforty years, and the first having
! heard their ancestors say that they never
saw nor heard anything to the contrary"
By royal decree dated July 16, 1919, md
/ w
to be described as possession of forty
years. This decree was issued with
reference to the existing condition OF
things concerning the crown lands in the
Island of Cuba, and contains the follow
ing: in the absence of other title
just prescription, that is, possession
of forty years, duly approved according
to law, shall be admitted and respected"
We further lind in law 4, title :, book
II, recopilacion de lndias, a provision
that: Possession immemoral when it
is proved, how and when, and with the
circumstances required by the law of
Toledo, possession of forty years is
sufficient to prescribe against us and our
successors as regards cities, towns and
places, etc"
From this investigation, we can not
escape the conclusion that a continued,
uninterrupted possession of land for
period of forty years, the possession OF
which had been obtained under an APP
parent title, that is, such a title as would
give to the occupant the right of posses
sion and which possession had been taken
in good faith and in the belief on the part of
the occupant, that he was entitled to have
his title confirmed to him, would be suffi-
cient to transfer the entire title from the
crown of Spain to the perso1 who held
sIch possession.
This brings us to the application of
these principles to the facts of this case.
The evidence is sufficient to show that
: possession of the tract in controversy
: was taken by Vigil in ITO, under grant
regularly issued by the governor, and
which was amply sufficient to confer the
right of possession of the property upon
Vigil and his successors; that possession
was taken in good faith; that it was held
continuously from ITO up to the time of
the issuing of this decree of 1854. This
of itself would create title by prescrip-
ton as against the crown of Spain, and
entitle the holders of the possession I'M
der the original grant to a confirmation
of their title by the officials designated
in the decree of 1854 as matter of legal
right, even if by the terms of that decree,
they were required to present evidence of
such prescriptive right in order to obtain
such confirmation.
We think, therefore, it necessarily fol-
lows that they had perfect title at the
date of the decree of 1854.
But suppose we should conclude that it
was necessary under the decree of 1854
for the holders of this tract to go before
the governor and make proof of their
original grant, and of their continued
possession, in order to obtain a confrma-
ton as provided for in the decree, and
that such confirmation was prerequisite
to their obtaining full legal title, the
question recurs, whether the evidence be-
fore us is sufficient to Justify the finding
that such was done.
Immediately following the issuance of
this decree of 1854, another period of
forty years continuous possession of this
tract is shown to have been held under
the title issued to Vigil; that this posses