Petitioners averred that Ortiz gave jurisdical possession of the grant to Marquez and his associates, and that they soon after 'formed a settlement thereon as required by the terms and conditions of the said grant known as the 'Town of San Miguel del Bado,' on the present site of the town of that name, within the limits of the said grant,-the said settlement being formed, as your petitioners are informed and believe, as a villa, with a corporation council, mayor, aldermen, attorney, and secretary; and that the said settlement of San Miguel del Bado continued as a municipal corporation up to the time the territory of New Mexico was ceded to the United States; the said town of San Miguel del Bado embracing within its jurisdiction all of the land within the exterior boundaries of the said grant heretofore described, and the said grant, being, as your petitioners are informed and believe, given to the said settlement of San Miguel del Bado upon the condition that the said settlement should be formed, and that the said tract should be in common, not only to the petitioners, but to all other settlers who might join them in the future.'
That the grant has since been occupied by the original settlers, their descendants and assigns and others who have become part of that settlement, or moved upon the grant and formed other settlements within its exterior boundaries, or built isolated residences and settled thereon, and 'has always been recognized as being a concession made to the town or settlement of San Miguel del Bado and all other settlers who [167 U.S. 278, 280] might join them in the future, and from thence hitherto as being the property of all the settlers within the exterior boundaries of the said grant, to be held and used by them in common, except as to such parts and portions as from time to time have been set apart in severalty to individual settlers thereon.
Certain proceedings were set forth as having been had on March 18, 1857, before the surveyor general of the territory of New Mexico on a petition 'made for and in the name of the inhabitants of the settlements of La Cuesta, San Miguel, Las Mulas, El Pueblo, Puerticita, San Jose, El Gusano, and Bernal; the said settlements existing at the date thereof within the limits of the said grant, and the inhabitants thereof comprising at that time all of the settlers upon the said grant; the said petition reciting that the inhabitants of said settlements claimed said grant as being the legal heirs and successors of Lorenzo Marquez and fifty- one other persons, and that they had been up to that date in continual possession of the said grant'; also, a report made to congress on November 13, 1879, and a survey made of the tract July 26, 1880, it [167 U.S. 278, 281] being stated that 'no action has ever been taken by congress in reference to the said San Miguel del Bado grant, either looking to its confirmation or rejection.'
The prayer of the petition was as follows:
The United States answered that the petition of Lorenzo Marquez of November, 1794, was not for, nor intended to be for, the exclusive use, benefit, and behoof of said Lorenzo Marquez, or any one else; that, if Ortiz put Marquez and his co-petitioners in possession of the property, it was not intended that said 'Marquez and his co-petitioners should have the exclusive possession of the whole of the property described in the boundaries set forth in his alleged petition, but that the same was for the use and benefit of said Marquez, his co-petitioners, and any and all citizens without lands who might thereafter settle upon the same; and, further, that the entrances and exits, waters and pastures, and the use of the land unappropriated by individuals in severalty, should be common.'
The answer further averred that the alcalde Pino was directed by Gov. Chacon in March, 1803, to ascertain whether the terms of the grant had been complied with, and that he reported March 12th that he 'found fifty- eight heads of families occupying the same; that in obedience to his said instructions he caused an amicable partition among them to be made, and assigned to each one the land he was so occupying and cultivating; that upon the return of said report the same was approved and confirmed by said Governor Chacon on the 30th day of March, 1803, to the resi- [167 U.S. 278, 282] dents of the new town of El Bado, known as 'San Miguel'; that thereafter, up to the occupation of this country by the American troops in 1846, under the terms and conditions of said grant, various parties have moved upon the same, have occupied and cultivated it, and are holding and occupying, were and have been recognized ever since, until now there are a large number of settlements under said grant, consisting of several thousand people, and upon which several towns have grown up under the form and construction given to the grant by Governor Chacon in 1803, and under the terms of the conditions of the pretended possession designated by the alcalde Ortiz in 1794, which in point of fact was never executed as alleged and claimed, but was given by Pino in 1803
After the commencement of Sandoval's suit, two others were instituted, one by Levi P. Morton and the other by Marquez and others, claiming that Lorenzo Marquez took [167 U.S. 278, 283] the title to the entire grant, as the other 51 were not named in the grant, petition, or act of possession, and asking confirmation in their names alone as successors in interest to Lorenzo. These suits were consolidated with that of Sandoval, and the three heard as one case.
The court of private land claims held that the act of partition of 1803 rendered the grantees certain, and dismissed the petitions of Morton and Marquez, and confirmed the grant in the name of Lorenzo Marquez and his co-grantees, and all other persons who might have come in and settled on the grant up to December 30, 1848; Murray, J., dissenting. The United States and Morton appealed.
The papers referred to in Sandoval's petition, and constituting the expediente, were as follows:
(The list referred to does not appear.)
Antonio Jose Ortiz.
Here followed the list of 58 individuals, with the number of varas each one received, running from 49 varas in one instance to 230 in another, 65 varas being allotted in 38 instances.
It appeared in evidence that the alcalde Pino, two days after making the distribution at San Miguel, made another [167 U.S. 278, 289] at the place of San Jose, within the same grant, which was approved by Gov. Chancon, March 30, 1803, the same day that he approved the allotment of land at San Miguel; that allotments were made from time to time within this grant at various other places until at least 1846; that a town was formed, known as the 'Town of San Miguel del Bado,' an ayuntamiento or town council being elected, and also an alcalde; that the town continued until the American occupation; that jurisdiction was exercised by the town council, not only over the municipality and those living therein, but over the adjoining country and settlements, which were too small to be entitled to an ayuntamiento; and that at present there are living within the outboundaries of the grant at least four or five thousand people, who have collected themselves principally within four or five settlements. Testimony was further introduced, disclosing the manner in which the lands included within the outboundaries had been administered, and also the administration of property rights in adjoining settlements. This tended to show that the people cultivated the portions of land that were partitioned to them according to the number in the family; that they obtained the land from the ayuntamiento, but the alcalde was the person who, under the direction of the board, made the partition to those who came in from time to time to settle, from lands which had not been partitioned before; that the unassigned lands were common pasture grounds for everybody, and the water and watering places were free to all, and for the benefit of all families, but none of them were considered the owners of the common pasture grounds, and they had no right to sell anything except the tracts upon which they had houses and farms.
In brief, the evidence is correctly summed up by counsel for the United States as showing that subsequent to the allotment and partition of 1803, and up to the date of the American occupation, the lands within the boundaries of this grant, and a large amount of outlying lands, were administered by the government of New Mexico through the ayuntamiento of San Miguel del Bado; that persons coming subsequent to [167 U.S. 278, 290] the allotment of 1803 applied to the ayuntamiento for land, and, if the petition or application were favorably received and considered, the alcalde was instructed to make them allotments of land for agricultural purposes, and to put them into possession of the same, but always subject to the territorial deputation.
Matt. G. Reynolds, for the United States. John De Witt Veeder, for sandoval.
T. B. Catron, for Morton.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
By article 8 of the treaty of Guadalupe Hidalgo of February 2, 1848 ( and we are not concerned here with the treaty of December 30, 1853), Mexicans established in territories previously belonging to Mexico, and remaining for the future within the limits of the United States as defided by the treaty, were free to continue where they then resided, or to remove at any time to Mexico, 'retaining the property which they possessed in said territories or disposing thereof or removing the proceeds wherever they pleased,' and 'in the said territories property of every kind now belonging to Mexicans now established there shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may acquire said property by contract, shall enjoy, with respect to it, guarantees equially ample as if the same belonged to citizens of the United States.' 9 Stat. 922, 929.
The mode in which private rights of property may be secured, and the obligations imposed upon the United States by treaties fulfilled, belongs to the political department of the government to provide. In respect to California, this was done through the establishment of a judicial tribunal; but, in [167 U.S. 278, 291] respect of the adjustment and confirmation of claims under grants from the Mexican government in New Mexico and in Arizona, congress reserved to itself, prior to the passage of the act of March 3, 1891, creating the court of private land claims, the determination of such claims. Astiazaran v. Mining Co., 148 U.S. 80 , 13 Sup. Ct. 457; Ainsa v. U. S., 161 U.S. 208, 222 , 16 S. Sup. Ct. 544.
By the act of March 3, 1851, c. 41 (9 Stat. 631), congress created a board of land commissioners to determine claims to land in California asserted 'by virtue of any right, or title, derived from the Spanish or Mexican government.' Section 8.
Section 11 of the act provided that the board of commissioners thereby created, the district court, and this court, 'in deciding on the validity of any claim brought before them under the provisions of this act, shall be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the supreme court of United States, so far as they are applicable'; that is, the decisions theretofore given in relation to titles in Louisiana and Florida, which were derived from the French or Spanish authorities previous to the cession to the United States. Fremont v. U. S., 17 How. 542, 553.
Section 14 permitted the claims of lot holders in a city, town, or village to be presented in the name thereof, and authorized the presumption of a grant to such city, town, or village, when shown to have been in existence on the day named.
The act of March 3, 1891, is couched in different phraseology.
Section 6 authorizes any person or persons or corporation, or their legal representatives, claiming lands within the limits of the territory derived by the United States from the republic of Mexico, 'by virtue of any such Spanish or Mexican grant, concession, warrant, or survey as the United States are bound to recognize and confirm by virtue of the treaties of cession of said country by Mexico to the United States which at the date of the passage of this act have not been confirmed [167 U.S. 278, 292] by act of congress, or otherwise finally decided upon by lawful authority, and which are not already complete and perfect,' to file a petition in the court of private land claims praying that 'the validity of such title or claim may be inquired into and decided.'
By section 7 it is provided that the proceedings should 'be conducted as near as may be according to the practice of the courts of equity of the United States,' and the court is empowered 'to settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, according to the law of nations, the stipulations of the treaty concluded between the United States and the republic of Mexico at the city of Guadalupe Hidalgo, on the second day of February, in the year of our Lord, eighteen hundred and forty-eight, or the treaty concluded between the same powers at the City of Mexico, on the thirtieth day of December, in the year of our Lord, eighteen hundred and fifty-three, and the laws and ordinances of the government from which it is alleged to have been derived.'
Section 13 provides that all the proceedings and rights thereinbefore referred to shall be conducted and decided subject to certain enumerated provisions, and to the other provisions of the act.
Among the provisions contained in section 13 is the following:
The seventh subdivision of the same section reads thus: [167 U.S. 278, 293] 'No confirmation in respect of any claims or lands mentioned in section six of this act or in respect of any claim or title that was not complete and perfect at the time of the transfer of sovereignty to the United States as referred to in this act, shall in any case be made or patent issued for a greater quantity than eleven squares leagues of land to or in the right of any one original grantee or claimant, or in the right of any one original grant to two or more persons jointly, nor for a greater quantity than was authorized by the respective laws of Spain or Mexico applicable to the claim.'
But this limitation does not, in our judgment, affect the construction of the act, so far as brought in question in the case in hand.
In Ainsa v. U. S., 161 U.S. 208, 223 , 16 S. Sup. Ct. 544, 549, attention was called to the act of March 3, 1851, and it was said: 'But under the act of March 3, 1891, it must appear, in order to the confirmation of a grant by the court of private land claims, not only that the title was lawfully and regularly derived, but that, if the grant were not complete and perfect, the claimant could, by right and not by grace, have demanded that it should be made perfect by the former government, had the territory not been acquired by the United States.'
This was reaffirmed in U. S. v. City of Santa Fe, 165 U.S. 675, 714 , 17 S. Sup. Ct. 472, 487; and Mr. Justice White, speaking for the court, said: 'An inchoate claim, which could not Fe, 165 U.S. 675, 714 , 17 S. Sup. Ct. 472, 487; the government of either Spain or Mexico, and which was subject to the uncontrolled discretion of congress, is clearly not within the purview of the act of March 3, 1891, c. 539, creating the court of private land claims (26 Stat. 854), and therefore is beyond the reach of judicial cognizance. The duty of protecting imperfect rights of property under treaties such as those by which territory was ceded by Mexico to the United States in 1848 and 1853, in existence at the time of such cessions, rests upon the political, and not the judicial, department of the government. Le Bois v. Bramell, 4 How. 449, 461; Ainsa v. U. S., 161 U.S. 208, 222 , 16 S. Sup. Ct. 544. To the extent only that congress has vested them with authority to determine and protect such [167 U.S. 278, 294] rights can courts exercise jurisdiction. Where, therefore, a tribunal of limited jurisdiction is created by congress to determine such rights of property, a party seeking relief must present for adjudication a case clearly within the act, or relief cannot be given. U. S. v. Clarke, 8 Pet. 436, 444.'
And after referring to sections 13 and 7, and pointing out that 'the meaning of the words 'complete and perfect," as used in section 6, 'is to be derived by considering the context, and not by segregating them from the previous part of the sentence exacting that the claim must be one which the United States was bound to recognize and confirm by virtue of the treaty,' and that 'these words are moreover controlled by the mandatory requirements of section 13,' the opinion thus continues: 'Although the act of 1891, in section 11, authorized a town presenting a claim for a grant to represent the claims of lot holders to lots within the town, this provision does not override the general requirements of the statute as to the nature of the claim to title which the court is authorized to confirm. The difference between the act of 1891 and the California act of 1851, hitherto referred to, accentuates the intention of congress to confine the authority conferred by the later act to narrower limits than those fixed by the act of 1851. The act of 1851 authorized the adjudication of claims to land by virtue of any 'right' or 'title' derived from the Spanish government, and conferred the power in express language on the board and court to presume a grant in favor of a town. The act of 1891 not only entirely omits authority to invoke this presumption, but, as we have seen, excludes by express terms any claim, the completion of which depended upon the mere grace or favor of the government of Spain or Mexico, and of the United States as the successor to the rights of these governments.'
The contention on behalf of the United States is that the court of private land claims had no power to confirm lands situlated as these were, within the outboundaries, that had not been allotted prior to the date of the treaty, because under the laws of Spain and Mexico the jus disponendi of all unassigned [167 U.S. 278, 295] lands remained in the government, and passed to the United States.
The papers in the expediente show that it was the intention that a town or pueblo should be, and that it was, established. The application stated that the land asked for was intended, not only for the 51 petitioners, 'but also for every one in the province not supplied.' The Alcalde Ortiz was directed to execute the grant on 'the conditions and requisites required in such cases to be observed.' The conditions are set out by the alcalde in his report as all agreed to by petitioners; among them being the provision that the tract was to 'be in common, not only in regard to themselves, but also to all the settlers who may join them in the future.'
In 1803 the alcalde Pino, under instructions from the governor, went upon the grant, and divided the lands which had been occupied and cultivated among the original petitioners and some others, and put each one in the possession of the lot drawn by him; notifying them that no one should have the right to sell the land allotted to him until the expiration of 10 years from that date, as directed by the governor. The grant purported to convey only the use of the land, with the right to acquire the legal title to such portion of it as might be allotted to each in severalty, on condition that they remained on it and cultivated it for 10 years, while the unoccupied or common lands were declared to be for the benefit of the original grantees and all other persons who might desire to settle on the grant, and who complied with the terms in regard to settlement and cultivation.
Did the fee to lands embraced within the limits of the pueblo, and intended for community use, continue to remain in the sovereign, or did it pass to the pueblo?
The general subject was much considered in U. S. v. City of Santa Fe, supra, and it was said: 'It cannot be doubted that under the law of Spain it was necessary that the proper authorities should particularly designate the land to be acquired by towns or pueblos before a vested right or title to the use thereof could arise.' Various extracts were made from the laws of the Indies, and the fol- [167 U.S. 278, 296] lowing passages from Elizondo's Practica Universal Forense were quoted:
And it was then observed: 'Moreover, the general theory of the Spanish law on the subject indicates that, even after a formal designation, the control of the outlying lands, to which a town might have been considered entitled, was in the king, as the source and fountain of title, and could be disposed of at will by him, or by his duly-authorized representative, as long as such lands were not affected by individual and private rights. This is shown by the quotation from Elizondo already made. The provisions of law 14, tit. 12, bk. 4, of the Recopilacion (2 White, New Recop. p. 52), which is reproduced in the margin, illustrate the absolute control thus exercised by the king of Spain over the subject.'
The existence of this power of control and disposition as to municipal lands in the supreme Spanish and then Mexican authority was shown by further references, and various acts of congress were cited as enacted in view 'of this state of the Spanish law, and the unquestioned power lodged in the king of Spain to exercise unlimited authority over the lands assigned to a town, and undisposed of, and not the subject of private grant, to all of which rights the United States succeeded [167 U.S. 278, 297] as successor of the king of Spain and the government of Mexico.'
Although the particular question arising in the foregoing case was whether the Spanish law, proprio vigore, conferred upon every Spanish villa or town a grant of four square leagues of land, yet its disposition involved the same considerations as those presented on this record, and we regard its reasoning and conclusions as decisive here.
Under the laws of the Indies, lands not actually allotted to settlers remained the property of the king, to be disposed of by him, or by those on whom he might confer that power. As Mr. Hall says (chapter 7, 122): 'The fee of the lands embraced within the limits of pueblos continued to remain in the sovereign, and never in the pueblo as a corporate body.' Subsequent decrees, orders, and laws did not change the principle.
Towns were established in two ways: By their formation by empresarios or contractors, the title to the lands granted vesting in the contractors and settlers, minute provisions being made in relation thereto. By individuals associating themselves [167 U.S. 278, 298] together for that purpose, and applying to the governor of the province, through whose action a city, villa, or place was established. These municipalities appear to have been quasi corporations, corporations sub modo, and their ayuntamientos exercised political control over the pueblos, and over surrounding country attached to their jurisdiction. The alcalde made allotments subject to the orders of the ayuntamiento, and they, again, were apparently subject to the provincial deputation, or an equivalent superior body. At all events, unallotted lands were subject to the disposition of the government.
At the date of the treaty of Guadalupe Hidalgo, neither these settlers nor this town could have demanded the legal title to such lands of the former government, and the court of private land claims was not empowered to pass the title to either. It is for the political department to deal with the equitable rights involved.
The result is that the decree in Morton v. United States is affirmed, and the decree in United States v. Sandoval and others is reversed, and the cause remanded, that a decree may be entered in conformity with this opinion.