Long-continued and undisturbed possession of land in California,
whilst that country belonged to Spain or Mexico, under a simple
permission to occupy it from a priest of an adjoining mission or a
local military commander, did not create an equitable claim to the
land against either of the governments of those countries, nor is a
claim based upon such possession entitled to confirmation by the
tribunals of the United States under the Act of Congress of March
3d, 1851.
This was a proceeding, under the Act of March 3, 1851, for the
confirmation of a claim to a tract of land in California known as
the rancho of "Temescal," of four square leagues in extent. The
petition to the board of land commissioners asked for the
confirmation on two grounds:
1st. By virtue of an alleged grant of the premises by the
authorities of the King of Spain to Leandro Serrano, the testator
of the claimants, and
2d. By virtue of long-continued and uninterrupted possession of
the premises.
The proof negatived the existence of a grant, but showed that
Serrano had received the written permission of the priest of the
mission of San Luis Rey (to which mission the land originally
belonged), or of the military commander of San Diego, to occupy the
premises, and that under such permission he took possession of
them, and occupied them, or a portion of them, from about 1818 or
1819 until his death, which occurred in 1852.
The present claim was presented by his executrix (the widow) and
his executor.
The deceased Serrano, made some improvements on the premises,
consisting principally of two or three adobe houses, and he had a
vineyard and fruit orchard. He had also several acres under
cultivation, and was the owner of cattle, horses, and sheep in
large numbers which roamed over and grazed on the hills and in the
valleys surrounding his residence to the extent of the four leagues
claimed by him.
Page 72 U. S. 452
His possession was continuous and undisputed until the cession
of the country to the United States.
The land commission rejected the claim, but the district court,
on appeal, reversed the action of the board, and by its decree
adjudged the claim valid, and confirmed it to the extent of four
leagues. From this decree the United States appealed to this
Court.
Page 72 U. S. 459
MR. JUSTICE DAVIS delivered the opinion of the Court.
The court below confirmed the claim of the appellees to the
rancho known as "Temescal," embracing five leagues, and situated in
the County of San Bernardino.
It is insisted by the United States that this judgment was
wrong, because Leandro Serrano, under whom the appellees claim, had
no title, legal or equitable, to the land in controversy.
It can serve no useful purpose to review the voluminous
testimony in the record, for there is no substantial difference in
it on any point material to the decision of the cause, and hardly
any portion of it but what can be readily reconciled. It is clear
that Serrano occupied a portion of the property which was confirmed
to his widow and heirs continuously from 1818 or 1819 until his
death, which occurred in 1852. The improvements on the place
consisted of two or three adobe houses, a small vineyard and fruit
orchard, and a few acres in actual cultivation. At different
periods of his occupancy, he was the owner of cattle, sheep, and
horses, which subsisted on the unenclosed valleys and hills that
surrounded his residence. That his possession and occupation were
undisturbed and undisputed during the whole period of Mexican
sovereignty in California until our acquisition of the country is
fully established. It is not so easy to determine
Page 72 U. S. 460
the extent of his possession, but in the view we take of the
case, the question is unimportant.
The petition presented to the board of land commissioners asked
for the confirmation of this claim on two grounds -- first because
a provisional grant was made, and second by virtue of
long-continued and uninterrupted possession. The proof not only
negatives the existence of a grant, but clearly shows that Serrano
occupied the premises by a written permission from the priest of
the mission or the commandante of San Diego, or from both
conjointly. The only witness who pretends ever to have seen a paper
concerning a grant was Villia, an ignorant man, unable to write,
with very little knowledge of reading, and who, on being shown some
writing in order to test his ability to read, was unable to tell
what it was. It is impossible to escape the conclusion that this
witness was mistaken, without discrediting all the remaining
evidence, including the repeated declarations of Serrano that he
had no title. Villia evidently saw a paper in the hands of Serrano
in relation to this land, but it was not a title of concession by
Governor Sala, but the written permission to occupy given by the
commandante and priest. The archives of the country are totally
silent on the subject of this pretended grant, and there is no
record evidence even of an application for a grant, which exists in
ordinary cases. If Serrano even thought he had such a grant, why
did he reply to Wilson (who was his friend and relative by
marriage), on being advised of the necessity of perfecting his
title, if he had any, "that he had no title, but had been living on
the place ever since the settlement of California, and everybody
respected his claim."
It is apparent from the testimony produced by the claimants,
without considering that offered by the United States, that the
grant was a fiction and that Serrano occupied by a written
permission given to him by the priest, and perhaps by the
commandante. It is equally certain that this permission was the
paper sent by him to Governor Echandea for the purpose of obtaining
from him a title. Under the government of Spain in California, the
commandante or priest
Page 72 U. S. 461
had no authority to grant lands or to make contracts that could
bind the Spanish government to grant them. The governors of the
country only had this power. If Serrano had an imperfect grant, it
would show that he was in possession, claiming title, but a
possession under a simple permission to occupy could not raise even
an equity against the government.
*
It is clear, therefore, that there was nothing done which
estopped the Spanish government from denying Serrano's title, and
his bare possession did not bind the Mexican government, during its
dominion in California, from 1823 to 1846, not to deny it. The
colonization laws of Mexico were exceedingly liberal, and yet they
were never invoked by Serrano to aid him in getting a title.
If, then, Spain and Mexico never granted this land or contracted
to grant it or were under obligations to grant it, the claim has
surely no validity as against the United States.
But it is insisted that if the legal title fails, yet the
notorious and long-continued possession establishes an equitable
one.
The actual possession in this case was limited to a very small
quantity of ground, but conceding that it embraced five leagues, no
equities attached to it, considering the manner in which it was
obtained and continued. There is no adverse holding here, but the
possession was a permissive one, and consistent with the
proprietary interest of Spain and Mexico, and the fact that those
governments did not terminate the possession, which was a mere
tenancy at will, cannot create an equity entitled to confirmation.
Serrano held under a license to occupy, and that license could be
revoked at any time. The failure to revoke it cannot change the
original character of the possession into an adverse one. If
Serrano had entered into possession under a claim of right and had
title papers, though imperfect, he might say that the length of his
possession entitled him to the favorable consideration of the
court. Not so, however, where he had
Page 72 U. S. 462
no interest in the land, never applied for any, either to Spain
or Mexico, and was content with a permission to occupy it for the
purposes of pasturage.
The judgment of the court below is reversed and the case
remanded to the District Court of California, with directions to
enter an order dismissing the petition.
MR. JUSTICE FIELD did not sit in this case nor take any part in
its decision.
*
Peralta Case,
19 How. 343;
United States v.
Clarke, 8 Pet. 436.
