This petition was referred, July 6, 1806, by the governor to the alcalde in these words:
On July 14, 1806, the alcalde made the following report:
On August 1, 1806, Gov. Alencaster decreed:
On March 1, 1808, the alcalde made this report:
Then followed the specific distribution of so many varas to each, duly authenticated.
The record showed that these documents were produced from private hands, and it did not appear that they were ever returned to the governor to be legalized, or authority given for the execution of the various testimonios, and the delivery thereof to the grantees, the original remaining in the office of the public record as directed by the governor in his decree of August 1, 1806; nor did it appear that these various testimonios were issued and the original returned.
In 1832, one Juan de Jesus de Chacon, for himself and Mateo Garcia and Antonio Duran, presented a petition to the governor, asking that all the privileges allowed by law be permitted them, stating that two or three years before the alcalde, Ortiz, had placed them in possession of lands on the Gallina river, but that the present alcalde, Gallego, was attempting to dispossess them 'in a manner most strange,' considering that the lands had been given to petitioners by a competent judge, and that they had cultivated it for two consecutive years, and raised all the crops within their means; [167 U.S. 298, 303] and they applied to the governor that he would direct the alcalde to leave them at liberty to make such use as might appear proper of the lands lawfully belonging to them.
On April 2, 1832, the governor referred this petition to the asesor general, the licenciado, Barreiro. On the same day Barreiro made his report, stating that he had previously notified the alcalde of Abiquiu that he could not pass upon the rights of the parties on a simple communication, and recommending that the petitioners form an expediente of the whole matter, and then refer the case to him; also directing, in regard to the possession given by Alcalde Ortiz, that nothing should be done until final adjudication, whereupon the governor made the following order:
On April 6th, the alcalde, Gallego, reported that, having examined the question between the parties, he had directed that a suit of conciliation, with two arbitrators, named by the parties in litigation, be brought, in accordance with article No. 155; and he found that the alcalde had not carried out the will of Gov. Alencaster by properly certifying the grant document, and giving certified copies to the parties in interest, and returning the original to the capital, to be placed in the archives, for which omission and others he adjudged the original possession not to be legal, and to be without right until confirmed by the governor. He also reported, as to the ac- [167 U.S. 298, 304] tion of Alcalde Ortiz, that it was not legal, possession having been given by him without the production of any document approved by the governor, or any approval or certification of petition, as is usual, nor the proper proceedings taken, which was the province of the most excellent territorial deputation, with report of the proper ayuntamiento on the petition, and that a new possession must be given.
This report was returned by Barreiro, who required the alcalde to make up an expediente as originally directed. The alcalde summoned the parties, and their answers, replies, and rejoinders were set forth at length. Salazar and his associates insisted that the possession of the lands at the Ca non de San Joaquin del Rio de Chama and the decree of Go v. Alencaster were legal, but that the action of the alcalde, Ortiz, was wholly without right. On these the asesor general made his report as follows:
On the 10th of May, 1832, Gallego made a partition of lands among 18 interested parties, assigning to them lots of land of 50 varas each, and of uncultivated land of 100 varas each.
The record did not show that the proceedings before the asesor general, or his action and opinion, were returned to or in any way approved by the governor or the territorial deputation, nor that the partition and assignment by the alcalde were ever reported and approved, nor under what authority he acted.
There was considerable controversy as to the west boundary of the tract, but it was not contended that the proceedings of 1832 extended the area of the lands intended to be granted by Gov. Alencaster in 1806
Certain records of suits in 1880 and 1887 in the district court of Arriba county, for the purpose of quieting the title and a partition of said lands as between individual claimants, were set forth in the record.
The court of private land claims confirmed petitioner's claim to the extent of the lands lying in the Ca non del Rio de Chama, which were first actually apportioned among the settlers, and no more, and the company appealed.
F. W. Clancy, for appellant.
Matt. G. Reynolds, for the United States.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
Assuming, but without in any manner deciding, that Gov. Alencaster had full power to make the grant in any quantity and in any manner he saw proper, we think it clear that he did not, and did not intend to, make a grant of nearly [167 U.S. 298, 306] half a million of acres to the original applicants, in common, and that the alcalde did not so understand it, and did not attempt to deliver juridical possession of such a tract, but only of the various allotments that were made to petitioners in severalty. The petition simply mentioned a tract called the 'Chama River Ca non,' and the governor directed the alcalde to report on its extent and boundaries, the proportion of irrigable land, and how many settlers it would accommodate. The alcalde reported that he had personally visited the Chama River Ca non, and passed over all the land with the greatest care and observation, and he said:
There is nothing in the terms of the grant to indicate that the governor intended to place 31 persons in possession, with the exclusive right of property, of a grant 25 miles north to south and 30 miles from east to west. He says: 'In pursuance of the foregoing report, the said alcalde may proceed to the assignment of twenty-six lots of land capable of being planted with the equivalent of three cuartillas of wheat, one ditto or three almudes of corn, another three of beans, and of having erected on each of them a small house with a garden.' He directed that Salazar should have two lots, and 'the remaining twenty-four to the individuals who, upon report made by the said alcalde, may obtain my decree that they be assigned lands,' etc., and that 'to the said parcel of lots held by the twenty-five settlers will be given the name 'San Joaquin del Rio de Chama." The governor then continued thus:
Eighteen months thereafter the so-called act of possession was executed on a verbal order of the governor. The alcalde recites:
The alcalde does not state that he delivered the possession to any one individual, or to all these individuals in common, of a large tract of land, but possession to each individual of the land to which he was entitled, and no more, and this was accompanied by a description of the outboundaries within which allotments could be made by the proper governmental officials to persons that might come in thereafter.
Reference is indeed made to the use of the lands within the outboundaries for pastures and watering places, but this did not put them out of the class of public lands, and, whatever equities might exist, no title was conveyed. [167 U.S. 298, 308] We have just held in U. S. v. Sandoval, 167 U.S. 278 , 17 Sup. Ct. 868, that as to all unallotted lands, within exterior boundaries, where towns or communities were sought to be formed, as in this instance, the title remained in the government, for such disposition as it might see proper to make.
Moreover, it is clear that the alcalde had no authority to give possession of 475,000 acres of land to these 31 petitioners, even if he could have done so if expressly authorized by direct order of the superior authorities, which is not pretended.
We entirely agree with the holding of the court of private land claims, as indicated by their decree, that the act of possession, the alcalde's report, and the governor's decree, taken together, show that the only title which was passed on or intended to be passed on was to the various allotments which were actually made. Nor can we concur in the view that the result is affected by the proceedings had before the asesor general in 1832. Whatever the judicial authority of this officer, his action did not amount to an adjudication that those who were living on the grant, or who went there in 1806 or 1808, were the absolute and unconditional owners of 475,000 acres of land, and, indeed, he seems to have been of opinion, not only that the unallotted lands were subject to disposition by the government, but that the proper authority to make such disposition was the territorial deputation.
It is also said that congress has repeatedly confirmed similar grants; but the fact that congress may have thus disposed of the public lands, in its discretion, cannot operate to justify the court of private land claims in adjudication in a case not coming within the terms of the law of its creation.
The proceedings in the district court of Rio Arriba county are nothing to the purpose, as the title of this property, under the treaty of Guadalupe Hidalgo and the act of congress of July 22, 1854 (10 Stat. 308, c. 103), was sub judice. The claimants were then proceeding on their claim before the surveyor general and congress, under that act, and an attempt to enforce that title, and have it adjudicated by the [167 U.S. 298, 309] local courts, comes within the decision in Astiazaran v. Mining Co., 148 U.S. 80 , 13 Sup. Ct. 457.
In that case it was said by Mr. Justice Gray, delivering the opinion of the court: 'Undoubtedly, private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties, belonged to the political department of the government; and congress might either itself discharge that duty or delegate it to the judicial department.'
We have frequently reaffirmed the well-settled rule thus announced, and perceive no reason for reviewing it, although counsel suggests that we should do so, as bearing on the jurisdiction of the territorial courts, and in view of the so-called protocol signed by the commissioners of this country to Mexico, at the time of the exchange of the ratifications of the treaty of Guadalupe Hidalgo. A sufficient account of that diplomatic incident will be found in President Polk's message of February 8, 1849 (5 Ex. Doc. House Rep. 2d Sess. 30th Cong.), and in Mr. Secretary Bayard's letter of November 24, 1886 (3 Whart. Int. Dig. [2d Ed.] Append. 131, &. 885). We did not feel called upon to discuss it in Astiazaran's Case, nor do we now in disposing of the case in hand, under the act of March 3, 1891, on this record. Botiller v. Dominguez, 130 U.S. 238 , 9 Sup. Ct. 525.
Furthermore, it is conceded that these records were put in evidence only to show that petitioner had succeeded, in part at least, to the rights of the original grantees.