Cessna v. United States, 169 U.S. 165 (1898)
Cessna v. United States
No. 78
Argued and submitted January 4, 1898
Decided February 21, 1898
169 U.S. 165
APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS
Syllabus
The decision of the Court of Private Land Claims that the ayuntamiento of El Paso had no power to make a grant, like the one in controversy in this case, entirely outside of the four square leagues supposed to belong to El Paso, and that even if it had such power, the conditions of the alleged grant were never performed by the grantee, and therefore that he acquired no title to the property, was correct.
On January 9, 1893, the appellants, as plaintiffs, filed their petition in the Court of Private Land Claims, praying that their title to a tract of land in the Territory of New Mexico, and near to the City of El Paso, Texas, be confirmed. The plaintiffs named as defendants, besides the United States, the unknown owners of the Dona Ana Bend colony, Mesilla colony, and Bracito grants. The United States, as well as certain individuals representing themselves to be the owners of these grants, appeared and answered. Thereafter a trial was had, and on June 26, 1895, the court entered a decree finding that the plaintiffs’ claim of a land grant had not been sustained by satisfactory proof and dismissing the petition. From such decree the plaintiffs have brought this appeal.
The facts disclosed by the record, and about which there is little dispute, are substantially as follows: in April, 1823, one Doctor John Heath, or Juan Gid, as his name is written in the Spanish, petitioned the ayuntamiento or general council of El Paso for a grant of a tract of land, which petition was acted upon by the ayuntamiento, and a tract five leagues square was granted to him. This petition was in these words:
Dr. Don Juan Gid, citizen of the United States of North America, in the best legal form allowed by law, appears before your honorable body and states that, not having received up to date any answer to the communication of December last of last year, which I presented to the former ayuntamiento, the predecessor of your honorable body, which [communication], approved in all its parts, was forwarded to his imperial majesty by the same, for which reason and because of the increase [ampleacion] of the power which is given to your honorable body by the law of colonization which was issued by the national constituent assembly [junta] of the empire on the 3d of January of the present year. For these reasons, I again have recourse through this, repeating my request to your honorable body, adding that I offer to bring for the settlement of the land of El Bracito, which I ask may be given to me, thirty families of Christian Catholics, and among them blacksmiths, gunsmiths, silversmiths, carpenters, tailors, shoemakers, saddlers, architects, mathematicians, chemists, mineralogists, surgeons, doctors of medicine, and to establish a hospital, with its corresponding drugstore and proper stock therein, with the necessary instruments for all operations; also to build a warehouse supplied with all kinds of merchandise for wholesale; the necessary machines for the manufacture of cotton and cloth goods; another for the manufacture of gunpowder, offering, until payment of the expense of transportation, to furnish the amount of this article all this jurisdiction may need at the very low price of one dollar per pound, it being first class for the use of arms; with the understanding that in all the said trades there shall be admitted for instruction the youths whose parents may see fit to dedicate them thereto, the children of this country [suelo] having the preference thereto.
In view of what has been said, and because, for establishing the said machinery, utilizing the farms, grazing stock, and for the other field interests, it is indispensable that it have the extension which is necessary therefor, it behooves me to demonstrate to your honorable body that the land which may be assigned to me, limiting me to the smallest amount, be at least enough for [sea lo menos para] an hacienda, and that said designation be made for me on both sides -- that is to say that it be on both sides of El Bracito, because, the said land being broken, it is necessary to leave out various portions of it. I also propose to your honorable body that until time permits whatever else may be desirable, this settlement be attached to the parish of this jurisdiction; likewise that the pasture and woodlands be common, with the same privilege as other people of this locality, recommending that it be without prejudice to those farms [sementeras], and that the petitioner be the person to whom is entrusted the distribution of said lands, he being considered the legitimate justice of said families.
Candor of mind being what I most appreciate, and to join myself with my brethren, the faithful inhabitants of this empire, living always in the simple peace, in order to dispel all rumors of hatred, I ask your honors that, you being pleased, and in order that the said law of colonization be executed in all its parts, notice of this, my petition, be given to the individuals of this jurisdiction in order that all these gentlemen who like may better or equal it with a view to the right of preference, in which act your honorable body, to whom is entrusted the power of father of this country [patria] will weigh at their true value the incalculable benefits that result from my petition, whereupon, far from seeking means to deprive it thereof, it would be encouraged in every way to procure their increase.
Wherefore I ask and petition your honorable body to be pleased to accede to what I petition, being pleased to pardon the fault that this my petition is not upon paper of the proper seal, for there is none in this place, I being ready to pay the fees that belong to the national treasury. I protest that I do not act in bad faith, and the necessary,
etc.
Paso, April 7th, 1823.
Juan Gid
Certain proceedings were had upon this petition which it is unnecessary to mention in detail.
On April 22. this order was made by the ayuntamiento:
This ayuntamiento having on this day received that which by its order was to be executed by the commission appointed from its midst to do the surveying that was to be done in the land of El Bracito, this being five leagues in each direction, the whole of it composing an "hacienda," according to article 5 of the colonization plan, which land was granted by this ayuntamiento to Don Juan Gid for the purpose of settlement, as stated afterwards, and he being satisfied with what was done in all its parts by the said commission, it was entered as a minute, in due witness thereof the president and other members of which that is composed signing it before me, the secretary, to which I certify. Jose Ygnacio Rascon, Jose Morales, Jose Maria Belarde, Jose Francisco Carbajal, Juan Maria Barela, Antonio Prudencio, Jose Maria Garcia, Saturnino Aguiar, Jose Manuel Garcia, Lorenzo Provencio, Jose Albares.
Juan Maria Ponce de Leon,
Secretary
And on the 25th the following:
The present expendiente, in which there has been granted to Don Juan Gid, Anglo-American of the United States, the lands of El Bracito for settlement, being considered by this ayuntamiento as closed, proceed to what is to be done under the tariff in force in this ayuntamiento and by its secretary that Juan Gid may know what fees he is to pay for what has been done therein, placing the original in the archive as a perpetual testimony, but nevertheless to this shall be sent, together with a certified copy, by the first mail or safe conduct, to the governor of this province for his superior information, another of the same kind being given to the party in interest for his protection. And by the present order, the president and members of this corporation so determined and signed it before me, the secretary, to which I certify. Jose Ygnacio Rascon, Jose Morales, Jose Maria Belarde, Jose Francisco Carbajal, Saturnino Aguiar, Jose Manuel Garcia, Lorenzo Provencio.
Juan Maria Ponce De Leon,
Secretary
It is a copy of the original expediente which on petition of Don Juan Gid was made in order to grant to him for settlement the land of El Bracito, in accordance with the colonization plan, together with what is afterwards stated; which original remains accordingly in the archive, to which I certify.
Juan Maria Ponce De Leon,
Secretary [Rubric]
A copy of these proceedings was sent to the governor of the province, and the following action was taken by the provincial deputation:
In the session of the 17th of the present month the acting governor of this province, Captain Jose Antonio Vizcarra, presented to this deputation the reports which your honorable body makes to him in an undated official communication which said chief received, and he also presented another official letter, dated the 26th of last April, accompanied by a copy of the proceedings had by your honorable body in giving to the foreigner Mr. John Heath at the Bracito, possession of land belonging to the people of that jurisdiction.
The deputation in the same session resolved to express to your honorable body the surprise it felt at the violent and mistaken procedure with which you conducted yourselves in giving land to foreigners, not only with prejudice to the inhabitants of that jurisdiction, but also in violation of the same law of which your honorable body availed itself in order to carry into effect the possession referred to, thus opening the door to the continual complaints of its people; this deputation refraining from making other observations to your honorable body, on account of the colonization law, which was the moving cause in the concession of the Bracito land to the said Heath having been repealed; but proceeding to direct your honorable body that, in order not to make itself responsible for damages which the foreigner might claim if he should introduce into this province the families that he offers to bring, it should notify the said Heath, through the plenipotentiary of the United States resident in New Mexico, or in some other manner which it may deem more prompt and effective, that the possession which has been given to him at the Bracito, belonging to that jurisdiction of El Paso, was through a mistaken opinion and wrong understanding in relation to the colonization law already repealed.
And I communicate it to you by direction of the said deputation, with the understanding that I shall communicate to you the decision that may be arrived at when the petition of Mr. Albo and the other persons of that town shall have been discussed, your honorable body notifying me of the receipt of and compliance with these instructions.
God preserve your honorable body many years.
Santa Fe, June 19, 1823, the third year of independence and the second of liberty.
Francisco Javier Chavez [Scroll]
Juan Bautista Vigil [Scroll]
Deputy Secretary
It does not appear that notice of this action of the provincial deputation was at the time communicated to Heath, for soon after the final order of the ayuntamiento, he returned to this country and to the State of Missouri, of which state he had theretofore been a citizen, made a disposition of his property, and collected a body of colonists, with whom, in the year 1824, he proceeded to El Paso with a view of taking possession of this tract of land. Instead of being permitted to occupy the tract, he was banished from the country, forced to abandon the property that he had brought with him, and sent back to the United States a bankrupt. He returned to Missouri, where he lived until he died, in the year 1851. Petitioners claim under him.
The national colonization law of January 4, 1823, under which these proceedings were had, is, so far as it can have any application to the present case, translated by Rockwell (Rockwell’s Spanish Laws, p. 617), as follows:
Art. 1. The government of the Mexican nation will protect the liberty, property and civil rights of all foreigners, who profess the Roman Catholic apostolic religion, the established religion of the empire.
Art. 2. To facilitate their establishment, the executive will distribute lands to them, under the conditions and terms herein expressed.
Art. 3. The empresarios, by whom is understood those who introduce at least two hundred families, shall previously contract with the executive, and inform it what branch of industry they propose to follow, the property or resources they intend to introduce for that purpose, and any other particulars they may deem necessary, in order that, with this necessary information, the executive may designate the province to which they must direct themselves; the lands which they can occupy with the right of property, and the other circumstances which may be considered necessary.
Art. 4. Families who emigrate, not included in a contract, shall immediately present themselves to the ayuntamiento of the place where they wish to settle in order that this body, in conformity with the instructions of the executive, may designate the lands corresponding to them, agreeably to the industry which they may establish.
Art. 5. The measurement of land shall be the following: establishing the vara at three geometrical feet, a straight line of five thousand varas shall be a league; a square, each of whose sides shall be one league, shall be called a sitio, and this shall be the unity of counting one, two or more sitios; five sitios shall compose one hacienda.
Art. 7. One labor shall be composed of one million square varas, that is to say, one thousand varas on each side, which measurement shall be the unity for counting one, two or more labors. These labors can be divided into halves and quarters, but not less.
Art. 8. To the colonists whose occupation is farming, there cannot be given less than one labor, and to those whose occupation is stock raising, there cannot be given less than one sitio.
Art. 9. The government of itself or by means of the authorities authorized for that purpose, can augment said portions of land as may be deemed proper agreeably to the conditions and circumstances of the colonists.
Art. 10. Establishments made under the former government which are now pending shall be regulated by this law in all matters that may occur, but those that are finished shall remain in that state.
Art. 11. As one of the principal objects of laws in free governments ought to be to approximate, so far as is possible, to an equal distribution of property, the government, taking into consideration the provisions of this law, will adopt measures for dividing out the lands, which may have accumulated in large portions, in the hands of individuals or corporations, and which are not cultivated, indemnifying the proprietors for the just price of such lands to be fixed by appraisers.
Art. 19. To each empresario who introduces and establishes families in any of the provinces designated for colonization there shall be granted at the rate of three haciendas and two labors, for each two hundred families so introduced by him, but he will lose the right of property over said lands should he not have populated and cultivated them in twelve years from the date of the concession. The premium cannot exceed nine haciendas and six labors whatever may be the number of families he introduces.
Art. 20. At the end of twenty years, the proprietors of the lands acquired in virtue of the foregoing article must alienate two-thirds part of said lands either by sale, donation, or in any other manner he pleases. The law authorizes him to hold in full property and dominion one-third part.
Art. 21. The two foregoing articles are to be understood as governing the contracts made within six months, as after that time, counting from the day of the promulgation of this law, the executive can diminish the premium as it may deem proper, giving an account thereof to Congress with such information as may be deemed necessary.
Art. 22. The date of the concessions for lands constitutes an inviolable law for the right of property and legal ownership; should anyone, through error or by subsequent concession, occupy land belonging to another, he shall have no right to it further than a preference in case of sale at the current price.
Art. 23. If, after two years from the date of concession, the colonist should not have cultivated his land, the right of property shall be considered as renounced, in which case the respective ayuntamiento can grant it to another.
Art. 24. During the first six years from the date of the concession, the colonists shall not pay tithes, duties on their produce, nor any contribution under whatever name it may be called.
Art. 25. The next six years from the same date, they shall pay half-tithes, and the half of the contributions, whether direct or indirect, that are paid by the other citizens of the empire. After this time, they shall in all things relating to taxes and contributions be placed on the same footing with the other citizens.
Art. 29. Every person shall be free to leave the empire, and can alienate the lands over which he may have acquired the right of property agreeably to the tenor of this law, and he can likewise take away from the country all his property by paying the duties established by law.
There is a dispute as to the proper translation of section 4, the original of which is:
Art. 4. Las familias queporsi mismas vengan a establecerse, se presentar an immediatamente al respectivo ayuntamiento del lugar en que quieran radicarse, para que conforme a las ordenes con que se hallen del gobierno se les designe por aquel cuerpo el terreno que les corresponda segun la industria que van a plantear,
and a translation thereof, as furnished by Mr. Tipton, a special agent and Spanish expert of the Department of Justice in the office of the United States Attorney for the Court of Private Land Claims, is:
Art. 4. The families who come of themselves to settle shall present themselves immediately to the respective ayuntamiento of the place at which they desire to establish themselves in order that, in conformity with the orders which they have from the executive, there be designated to them by that body the lands to which they are entitled according to the industry which they are going to undertake.
At the time of the enactment of this colonization law, Iturbide was the Emperor of Mexico. Soon thereafter, a revolution followed. He abdicated on March 20, 1823, and his banishment was ordered by a decree of the Constituent Congress of Mexico, April 23d in these words:
The sovereign Constituent Congress of Mexico, in the session of yesterday, decreed the following:
1. That the coronation of Agustin de Iturbide being an act of violence and of force, and void in law, there is no occasion to discuss the abdication he makes of the crown.
2. Consequently, it also declares as void the hereditary succession and the titles that have emanated from the coronation, and that all the acts of the late government, from the 19th of May to the 29th of March last, are illegal, but subject to revision by the present Congress for their confirmation or revocation.
3. The supreme executive authority will cause the prompt departure of Agustin de Iturbide from the Territory of the nation.
Article 10 of the original draft of the Treaty of Guadalupe Hidalgo, as agreed upon between the commissioners representing this government and Mexico, was as follows:
Art. 10. All grants of land made by the Mexican government, or by the competent authorities in territories previously appertaining to Mexico and remaining for the future within the limits of the United States, shall be respected as valid to the same extent that the same grants would be valid if the said territories had remained within the limits of Mexico. But the grantees of land in Texas, put in possession thereof, who, by reason of the circumstances of the country since the beginning of the troubles between Texas and the Mexican government, may have been prevented from fulfilling all the conditions of their grants, shall be under the obligation to fulfill the said conditions within the periods limited within the same, respectively, such periods to be now counted from the date of the exchange of ratifications of this treaty, in default of which the said grants shall not be obligatory upon the State of Texas in virtue of the stipulations contained in this article. The foregoing stipulation in regard to grantees of land in Texas is extended to all grantees of land in the territories aforesaid elsewhere than in Texas, put in possession under such grants, and in default of the fulfillment of the conditions of any such grant within the new period, which, as above stipulated, begins with the day of the exchange of ratifications of this treaty, the same shall be null and void.
(Message of the President of the United States, transmitting papers relative to the Treaty of Guadalupe Hidalgo, Feb. 8, 1849, Ex.Doc. 50, H.R. 30th Cong., 2d Sess. p. 17.)
That article, however, was stricken out by the Senate of the United States, and in the message of president Polk, the reasons for its rejection are stated in the following language (ib. 32):
The objection to the tenth article of the original treaty was not that it protected legitimate titles, which our laws would have equally protected without it, but that it most unjustly attempted to resuscitate grants which had become mere nullities by allowing the grantees the same period after the exchange of the ratifications of the treaty, to which they had been originally entitled after the date of their grants, for the purpose of performing the conditions on which they had been made. In submitting the treaty to the Senate, I had recommended the rejection of this article. That portion of it in regard to lands in Texas did not receive a single vote in the Senate. This information was communicated by the letter of the Secretary of State to the Minister of Foreign Affairs of Mexico, and was in possession of the Mexican government during the whole period the treaty was before the Mexican Congress, and the article itself was reprobated in that letter in the strongest terms. Besides, our commissioners to Mexico had been instructed
that neither the President nor the Senate of the United States can ever consent to ratify any treaty containing the tenth article of the Treaty of Guadalupe Hidalgo in favor of grantees of land in Texas or elsewhere.
And again:
Should the Mexican government persist in retaining this article, then all prospect of immediate peace is ended, and of this you may give them an absolute assurance.
And in the treaty as ratified were left the following provisions, which guaranty only the rights of Mexicans to property belonging to them in the territory (9 Stat. 929, art. 8):
Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories or disposing thereof and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever. . . . In the said territories, property of every kind now belonging to Mexicans not established there shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.
The act creating the Court of Private Land Claims (Act of March 3, 1891, c. 539, 26 Stat. 584), provides, in section 13, 26 Stat. 860:
First. No claim shall be allowed that shall not appear to be upon a title lawfully and regularly derived from the government of Spain or Mexico, or from any of the states of the republic of Mexico having lawful authority to make grants of land, and one that, if not then complete and perfect at the date of the acquisition of the territory by the United States, the claimant would have had a lawful right to make perfect had the territory not been acquired by the United States, and that the United States are bound, upon the principles of public law or by the provisions of the treaty of cession, to respect and permit to become complete and perfect if the same was not at said date already complete and perfect.
The eighth subdivision of the same section also contains this limitation:
No concession, grant, or other authority to acquire land made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition or requirement was performed within the time and in the manner stated in any such concession, grant, or other authority to acquire land.