1. In 1844, persons in California petitioned the Mexican
governor of that province for a grant of certain described land,
situated in the vicinity of the Mission of San Francisco. The
petition was referred to the secretary of state, who reported that
the land was unoccupied, but that inasmuch as "common lands"
(ejidos) were to be assigned to the said mission, he was of opinion
that in the meanwhile the petitioners might occupy the land
solicited under a provisional license. The governor thereupon made
a decree declaring the petitioners "empowered to occupy
provisionally" the land, and directing a proper document to be
issued to them and a registry made of it. An instrument was
accordingly issued to the petitioners, signed by the governor and
attested by the secretary of state, by which the governor, in
virtue of the authority vested in him and in the name of the
Mexican nation, granted "to them the occupation" of the land,
subject to the measurement to be made of common lands for the
establishment of San Francisco, with conditions against alienation,
and for the occupation of the land within a year, and for
forfeiture in case the conditions were not complied with. On this
case
Held that the decree of the governor constituted only a
naked license to occupy the land provisionally, and that the
instrument issued pursuant to the decree did not pass any title to
or interest in the land; that this license was a personal privilege
of the parties, and upon their death did not extend to their heirs;
that a claim for land resting upon a license of this character is
not entitled to confirmation under the Act of Congress of March 3,
1851.
Page 72 U. S. 600
2. The term "titulo," in the Spanish language, only means the
instrument which is given as evidence of the right, interest, or
estate conferred; it does not indicate the measure of such right,
interest, or estate; hence it applies equally to papers which
convey title in the usual acceptation of the term, and to those
which confer a mere right of occupancy.
Appeal from the District Court for the Northern District of
California in a claim for land, now of immense value, originally
presented to the board of land commissioners established by the Act
of March 3, 1851. The case was thus:
In April, 1844, Ramon and Francisco de Haro presented a petition
to the Mexican governor of the province of California for a grant
of a tract of land, called the "Potrero of San Francisco," situated
near the mission of that name. The petitioners were minors, and
their petition was accompanied with the consent of their father
that they might present it, and also his application to the local
alcalde for information as to the condition of the land solicited,
and the alcalde's reply thereto. The petition and accompanying
papers were referred to the secretary of state for his report
thereon. The secretary reported that the land was unoccupied, but,
for reasons stated, he was of opinion that a provisional license to
occupy it should be given to the petitioners. A decree was
accordingly made pursuant to this suggestion, and was followed by
the issue and delivery to the petitioners of a formal document
ceding to them the occupation provisionally, subject to certain
conditions. The following is a translation of the several papers
mentioned:
"
[Petition for the Grant]"
"EXCELLENT SENOR GOVERNOR OF BOTH CALIFORNIAS:"
"We, Francisco de Haro and Ramon de Haro, in the name of our
family, Mexican citizens by birth and residents of the ex-Mission
of San Francisco de Asis, represent to your Excellency with due
submission that inasmuch as we have to remove the share of cattle
appertaining to our deceased mother out of the rancho of the
deceased Jose Antonio Sanchez, and as we have in view to tame them,
we entreat your Excellency to
grant to us in the exercise
of your Excellency's powers
a small parcel of land called
Potrero de San Francisco &c., because there is no
Page 72 U. S. 601
competent person to do it, according to the annexed sketch that
we submit to your Excellency; and as said parcel of land can be
enclosed, we intend to place on it the tamed cattle, because of the
small extent of the location occupied at present by the cattle of
our father, who has given us due permission to petition, as we are
under the parental power and control. Therefore we entreat your
Excellency to grant us this benefit, whereby we shall receive favor
and grace. We swear not to proceed moved by malice &c. This
memorial has not been written on paper of the corresponding stamp,
there not being any here."
"RAMON DE HARO"
"FRANCISCO DE HARO."
"SAN FRANCISCO, April 12, 1844"
"
[Consent of the Father of the
Petitioners]"
"I, the undersigned, grant by the present document, to my sons,
Francisco and Ramon de Haro, the corresponding assent enabling them
(because they are minors) to solicit the Superior Government of the
Department the grant of the Potrero of the ex-Mission of San
Francisco de Asis, at present lying unoccupied, and represented in
the sketch accompanying the petition."
"The said Potrero being intended to be (if it should please the
Superior authority to grant it) for the benefit of their other
brothers as well as themselves, and to answer due ends I give them
this document in the aforementioned ex-Mission of San Francisco de
Asis, on the 12th day of April, 1844."
"FRANCISCO DE HARO"
"
[Application of the Father of the Petitioners to the
local Alcalde"
"
for Information as to the Condition of the land
solicited]"
"TO THE HONORABLE THE ALCALDE OF FIRST NOMINATION OF SAN
FRANCISCO:"
"I, Francisco de Haro, a resident of this jurisdiction, in the
name of my sons, Francisco and Ramon, formally appear and say that
my sons aforementioned have received my assent to solicit of the
Superior Government of the Department the grant of the Potrero that
lies opposite the ex-Mission of San Francisco de Asis, which stands
unoccupied, and the enclosures of which
Page 72 U. S. 602
are thrown down and lying on the ground, and inasmuch as I wish
to remove the obstacles that may obstruct the speedy dispatch of
said petition, and since it must be referred thence to this place
for report and information and I want to obviate this delay, I
therefore apply to you, in order that you be pleased to report as
you may think convenient, in the subject of my solicitation."
"Therefore I entreat you to proceed in this matter according to
right, and to direct this memorial, written on common paper, there
not being here any of the corresponding stamped. Thus I swear
&c."
"FRANCISCO DE HARO"
"SAN FRANCISCO, April 13, 1844"
"
[Reply of the local Alcalde to the Application for
Information]"
"SAN FRANCISCO DE ASIS, April 13, 1844"
"In consideration of the reasons presented by the party who
solicits, I proceed to report about the location in request,
declaring that up to this day there are no claimants of any kind,
and it is not occupied by any community or private individual."
"G. HINKLEY"
"
[Order of Governor referring Petition and accompanying
Papers to the"
"
Secretary of state to report thereon]"
"MONTEREY, April 29, 1844"
"Let the secretary of state report on the same and take the
necessary information."
"MICHELTOREAN"
"
[The Report of the Secretary]"
"MONTEREY, April 29, 1844"
"EXCELLENT SENOR GOVERNOR:"
"
The Mission of San Francisco no longer holds property of
any kind, and consequently the Potrero (or enclosed place for
keeping horses)
in request is lying unoccupied, as the
soliciting parties show by means of a report proceeding from the
respective judge, and inasmuch as
there are to be assigned to
said establishment, its
Page 72 U. S. 603
corporation or common land (ejidos [Footnote 1]), I am of opinion that
in the
meanwhile the parties might occupy the plot of land, by virtue
of
a provisional license of your Excellency, because no
prejudice is caused
thereby to the community, to any
private individual. Your Excellency's own decision will doubtless
be the most proper one."
"MANUEL JIMENO"
"MONTEREY, April 30, 1844"
"In conformity"
"MICHELTORENA"
"
[The Decree of the Governor upon the Petition and
Secretary's Report]"
"MONTEREY, April 30, 1844"
"After
examining the petition at the head of this
proceeding,
the preceding reports, and whatever else was
thought to the purpose,
in conformity with the laws and
regulations on the subject, I declare Francisco and Ramon de
Haro
empowered to occupy provisionally the piece of land
called Potrero de San Francisco, to the extent of half a square
league, the boundaries to be the extremities of the mouth of the
Potrero, and the range of hillocks or highlands environing it.
Let the corresponding patent be issued; let it be duly entered,
and let this information be communicated to the person in charge of
said establishment."
"
[The Document issued by the Governor, and delivered to
the petitioners"
"
pursuant to the above decree]"
"MANUEL MICHELTORENA, GENERAL OF BRIGADE IN THE MEXICAN ARMY,
ADJUTANT-GENERAL OF THE STAFF OF THE SAME, COMMANDANT-GENERAL,
GOVERNOR AND INSPECTOR OF THE DEPARTMENT OF CALIFORNIA:"
"Whereas, Francisco and Ramon de Haro have solicited the grant
of the Potrero de San Francisco, so called, from the mouth of the
estuaries, together with the high land surrounding it, all the
necessary investigations having been made according as the laws and
regulations in the matter prescribed, by virtue of the authority in
me vested, I have thought proper, in the name of the Mexican
nation,
to grant to them
the occupation of the
aforementioned
Page 72 U. S. 604
Potrero, subject to the mensuration to be made of the
corporation or common lands
(ejidos) for the establishment
of San Francisco, and under the following conditions: [
Footnote 2]"
"1st.
They shall have no power, under any consideration, to
sell or alienate it to the detriment of any of the proprietors of
the establishment of San Francisco."
"2d. They shall not
obstruct the paths, roads, and
servitudes, using it for culture and cattle they intend to
introduce on it, but
within a year at the most it must be
occupied."
"3d. The parcel of land to which reference is made is of half a
square league,
and if they should transgress any of these
conditions, they shall lose their right to this provisional grant,
which is delivered to the parties concerned for their security, and
other ends."
"Given in Monterey on the first day of May, 1844."
"MANUEL MICHELTORENA"
"MANUEL JIMENO"
Under the last document, the De Haros went into possession of
the land and occupied if for the pasturage of horses and cattle
until their death, which occurred in May, 1846. [
Footnote 3] The land was enclosed on three
sides by water, and a wall had been erected by the priests of the
mission on the fourth side. This wall had gone to ruin, and the De
Haros, after obtaining their concession, repaired it. The land was
not a fertile tract, and was only fit for pasturage. The father of
the De Haros succeeded to whatever interest they possessed in the
property at their death, and he occupied the land afterwards in a
similar manner -- that is, for the pasturage of horses and cattle
-- until his death, which took place in 1849. His successors in
interest were his children, six girls and one son, all minors at
the time. From these children the property passed into the hands of
numerous American citizens, for whose benefit, after our conquest,
the claim was
Page 72 U. S. 605
presented for confirmation to the board of land commissioners,
established by the Act of March, 1851, to settle private land
claims in California.
When the claim was pending before the land commissioners, two
papers additional to those set out at pages <|72 U.S.
600|>600-604 were produced and given in evidence, one of them
purporting to be a grant in fee simple of the land to the De Haros,
signed by Governor Micheltorena, bearing date May 24, 1844, and the
other purporting to be a grant of a similar nature signed by the
same officer September 18, 1844. The signature to both was genuine,
but it was added after the cession of the country to the United
States. The instruments were antedated, but by whom they were
prepared was not shown.
The commission confirmed the claim, rejecting the paper of May
24, 1844, as a forgery or antedated, but relying upon the paper of
September 18, 1844, though not without grave doubts as to its
genuineness.
On appeal to the district court, additional proof as to the
second paper was taken and its real character exposed, and it, as
well as the first paper, was formally abandoned by the counsel of
the claimants, and the claim for confirmation was based solely on
the provisional license and the proofs showing an occupation under
it.
The clause which usually appears in Mexican grants of land in
California, namely, that the party shall lose his right to the
land in case he violates the conditions attached, was
altered in the document of May 1, 1844, issued to the De Haros by
the governor, to the words, "he shall lose his right to this
provisional concession" in case he violates the
conditions.
The document was mentioned in the list of grants made by the
secretary of state, Jimeno, known as Jimeno's Index, and is noted
in the record Toma de Razon. The entry in this last book was as
follows:
"226. Don Francisco and Ramon Haro, on the 1st May, 1844. "
Page 72 U. S. 606
"Title (titulo) delivered to them of the tract named El Potrero,
in extent of one half league square."
The district court rejected the claim, holding that the right
conferred by the document in question was a mere license to occupy
the premises until the ejidos, or common lands, should be
measured.
In distinguishing the case from some others cited, the court in
its opinion said:
"
In this case the permission is given to occupy only until
an assignment of the land to the pueblo is effected. The
governor not only indicates no willingness or intention to grant,
but, in obedience to Jimeno's suggestion, he refuses to grant, and
ex industria limits the concession to the permission to
occupy land not then used by the Mission."
From the decree of that court the case was now here on the
appeal of the claimants.
Page 72 U. S. 622
MR. JUSTICE DAVIS delivered the opinion of the Court.
The case, on account of the large pecuniary value of the land in
controversy, has elicited great interest. We have been aided by
oral and written arguments of rare ability, and the question of
pueblo and mission rights and the powers of the Mexican governors
of California over them has been much pressed upon our
attention.
The construction, however, which we give to the espediente,
conceded to be genuine, and on which the plaintiffs must recover if
at all, supersedes the necessity of discussing the remaining
questions, which in any other aspect of the case it would be
important to do.
In order to ascertain the proper effect of the espediente as an
entire thing, it is necessary to analyze all its parts. And with
this analysis, the meaning of it, in our opinion, cannot be
mistaken. The petition presented by Francisco
Page 72 U. S. 623
and Ramon de Haro, residents of the ex-mission of San Francisco,
to Governor Micheltorena, asks for the grant of the potrero for the
purpose of pasturing cattle inherited from their mother, which they
were desirous of taming and had to remove out of the rancho where
they then were. The assent of their father was necessary to enable
them to solicit the grant, as they were minors, and it was
given.
According to the custom of the country, this petition was
referred to the secretary of the department to ascertain what was
the true state of facts and report to the governor. The informe, as
it is called, or official report of Jimeno, who was then secretary,
as it was approved by the governor, and formed the basis of his
action, is of material assistance in arriving at the true nature of
the right which was subsequently conceded. It is in these words,
addressed to the governor:
"The mission of San Francisco has no longer any property, and
consequently the potrero which is petitioned for is lying
unoccupied, as the soliciting parties show by means of a report
proceeding from the respective judge; and inasmuch as there are to
be assigned to said establishment, its corporation or common lands,
I am of opinion that in the meanwhile the parties might occupy the
plot of land, by virtue of a provisional license of your
Excellency, because no prejudice is caused thereby to the community
(or) to any private individual."
The significant fact appearing on the face of this document is
that it ignores the very matter for which the De Haros petitioned.
They solicited a grant of the land pertaining to the potrero, but
Jimeno, among the most intelligent of Mexican officials, knew if
the mission was secularized, there would remain an incipient
pueblo, which might embrace for its common lands, the piece of
ground asked for, and therefore reported that the grant of it could
not be safely conceded, as it might prejudice the rights of the
community. But as the enclosure was vacant, no harm could result to
the public or any private individual by its temporary occupancy,
and as the petitioners wanted very
Page 72 U. S. 624
much a place to pasture the cattle, which had fallen to them in
right of their deceased mother, he recommended that they be
permitted to occupy it temporarily, and for their security, the
governor should issue to them a provisional license. The report was
evidently predicated on the belief that the grant of the land would
interfere with the rights of the mission or pueblo; but in the
meantime, as they were not ascertained, there could be no
reasonable objection to the De Haros having the permissive
occupation of the tract. It nowhere appears an interest in the land
was in any event to be conceded, nor were any promises held out to
the De Haros, if the potrero should prove to be outside of the
common lands, a title in fee, or any less title should be assured
to them. Jimeno recommended nothing more than a provisional
license, enabling the parties to occupy the land for the occasion.
The question arises, was Micheltorena's decision in conformity with
Jimeno's recommendation? The material part of the order or decree
of the governor, and which was extended on the same day of the
approval of the report, is as follows:
"I declare Francisco and Ramon de Haro, empowered to occupy
provisionally the piece of land called Potrero de San Francisco to
the extent of half a square league. . . .
Librese el
correspondiente despacho -- let the corresponding order or
dispatch be delivered; let it be duly entered, and let this
information be communicated to the person in charge of said
establishment."
It is very clear that this decree conforms to the
recommendations of the report, and that Micheltorena did not intend
to confer any greater powers on the De Haros than Jimeno
advised.
There are no words used indicating an intention to give a title,
or to vary from the position taken in the informe. The document to
be issued is one corresponding to the right conferred, which was to
occupy provisionally the potrero. And the dispatch which did issue
for the protection of the parties conformed to the terms of the
decree, as will sufficiently appear by an examination of its
essential provisions. "I have determined," says the governor,
"to
permit the Messrs. De Haro to occupy the
beforementioned pasture
Page 72 U. S. 625
ground, subjecting themselves to the limits that shall be
prescribed to the establishment of San Francisco."
If language has any meaning, Micheltorena intended by this
instrument to give nothing more than the power to occupy, and even
this power was made expressly subject to the paramount claim of the
establishment of San Francisco. To permit pasture ground to be
occupied excludes all idea that a grant of the land was
contemplated. There are absolutely no words indicating an intention
to make a future grant on the happening of any event whatever. But
the dispatch goes further and forbids the De Haros to sell or alien
it or do any act prejudicial to the property of the establishment,
on penalty "of losing their right to this provisional concession."
The prohibition against sale and alienation by necessary intendment
refers to the right of occupancy, for no other right was to be
conceded, and this right was to cease if the fundamental conditions
attached to "the provisional concession," delivered to the De Haros
for their protection, were violated. If they were to lose their
right to the land, as is contended, why were the words appropriate
to a concession of the land, which an inspection of the original
document shows were written in it, stricken out, and the phrase
"they shall lose their right to this provisional concession"
substituted in their stead? It is clear enough that Jimeno, who was
in the habit of writing grants for land, inadvertently pursued the
usual form for such grants, but recovering himself, wrote the words
appropriate to confer a license to occupy, which he had recommended
and the governor approved.
It surely cannot need more evidence to demonstrate that the
Mexican officials intended the espediente to be what it is, a mere
license to occupy, not permanently, but "in the meantime," until
the ejidos were measured. It is impossible to divest the mind of
the conviction that Micheltorena and Jimeno either believed they
had not the power to grant the potrero or, if they had, the
circumstances of the mission forbade its exercise, and conceded a
permissive occupation, not of right, but by way of grace and
favor.
Page 72 U. S. 626
But it is said the occupation thus permitted could ripen into a
grant in fee or some lesser estate in case the potrero was not
included within the admeasurement of the ejidos. Not so, however,
for there are in the title papers no words granting the tract of
land, either absolutely or on condition, provisionally or
otherwise, nor any words by which any estate or interest in it can
be raised by implication. The power conferred resembles a grant in
no particular, but is a bare naked license, and to be governed by
the rules of law applicable to such a power.
But the authority of the "Toma de Razon" is invoked to bolster
up the claim of title because in the entry of this case the word
"titulo" is used.
It is proper to remark that the nature and effect of an
espediente, when it is clearly ascertainable from contemporaneous
and official construction, cannot be defeated by an entry in the
Toma de Razon. The office of the Toma de Razon is to support, not
destroy, the espediente. In this case, however, the entry did not
mistake the character of the transaction, for the Spanish word
"titulo" does not indicate the measure of the right, interest, or
estate of the party. "It means," according to Spanish authority,
[
Footnote 4] "the cause in
virtue of which anything is possessed, and the instrument by which
the right is accredited," and in Spain and Mexico there are a class
of titles (titulos), not translative of property. Therefore Jimeno
did not err in characterizing the instrument given to the De Haros
as a "titulo," for the word "titulo" is a
nomen
generalissimum, to be applied as well to title papers, which
convey title, in the usual acceptation of the term, as to those
which confer a mere right of occupancy. And the claimants can
derive no help from the use of the word "concession," for a
distinguished Spanish scholar (Escriche) gives this definition of
it: "Whatsoever is granted as favor or reward, as the privileges
granted by the prince." As a matter of favor, Micheltorena conceded
to the De Haros the privilege of temporarily occupying the
Page 72 U. S. 627
potrero in question. There was no contract to do more nor the
semblance of one.
Without pursuing the subject further, we are satisfied from a
careful examination of this Mexican record that the only thing
conferred or intended to be conferred on the De Haros was a
provisional or temporary license of occupation, which the governor
was willing should be in writing, instead of by parol, to enable
the licensees to enjoy their possession with greater security. And
this leads us to a consideration of the law on the subject of
licenses. If the license in question has been terminated, there is
an end to this case, and it is wholly unnecessary to consider the
other questions which have been discussed at the bar.
There is a clear distinction between the effect of a license to
enter lands, uncoupled with an interest, and a grant. A grant
passes some estate of greater or less degree, must be in writing,
and is irrevocable unless it contains words of revocation, whereas
a license is a personal privilege, can be conferred by parol or in
writing, conveys no estate or interest, and is revocable at the
pleasure of the party making it. There are also other incidents
attaching to a license. It is an authority to do a lawful act which
without it would be unlawful, and while it remains unrevoked is a
justification for the acts which it authorizes to be done. It
ceases with the death of either party, and cannot be transferred or
alienated by the licensee, because it is a personal matter and is
limited to the original parties to it. A sale of the lands by the
owner instantly works its revocation, and in no sense is it
property descendible to heirs. These are familiar and well
established principles of law, hardly requiring a citation of
authorities for their vindication, but if they are needed, they
will be found collected in the notes to 2d Hare & Wallace's
American Leading Cases commencing on page 376. [
Footnote 5] We are not aware of any difference
between the civil and common law on this subject.
Testing this case by these rules of law, is not the license
Page 72 U. S. 628
given by Micheltorena ended? The De Haros died in 1846, while
the Mexican government owned California, and with their death the
license terminated. As long as they were in full life, they had a
valid authority to enter upon the potrero and pasture their cattle,
but as the privilege was a personal one, it ceased when they died,
and did not extend to their heirs. The continued possession by the
father and those under him estops no one -- certainly not a
sovereign power like Mexico or the United States. The
representatives of the De Haros could doubtless lawfully enter upon
the potrero in order to remove the property left there, but their
authority extended no further.
It is argued the license was to last until the ejidos were
measured, and therefore is not determinable until that event
occurs. This argument has no force unless it was the intention of
Micheltorena to give some interest in the land to the De Haros when
the ejidos were assigned, if they did not embrace the potrero, but
we have seen that he had no such intention. He promised nothing; he
did not say what he would do or not do when the common lands were
measured, but told the De Haros, meanwhile, until they are
measured, you can occupy the potrero for a pasture ground for your
cattle. This was not a contract on consideration that they and
their heirs should have the right of occupancy until the happening
of this event. It might never happen, and what was intended as a
mere license would be thus converted into a grant. Micheltorena
could have lawfully ousted the De Haros from the possession at any
time before their death, because the privilege conferred was at all
times within his control, and liable to be countermanded.
The De Haros, so to speak, were tenants at will, and held at the
sufferance of the Mexican authorities. They could not have been
deceived as to the nature of the right conferred, for they repaired
to Monterey to get the land in full property, and returned to San
Francisco with only a provisional license to pasture their cattle
on it. The term provisional excludes the idea of permanency; it
means something temporary and for the occasion.
Page 72 U. S. 629
It may be true that Micheltorena, when he conceded to the De
Haros the privilege of pasturing cattle on the potrero, did not
intend to revoke it, if the conditions were observed, until the
ejidos were measured, and that it was so understood by them; but
this can in no aspect of the case alter the relations of the
parties to this suit. It was a personal privilege conceded to the
De Haros alone, and with their death it ceased. The license itself
not only contains no words extending it beyond the lives of the
parties, but all the circumstance of the case exclude the idea that
the governor intended to pass any interest descendible to
heirs.
If this is so, this claim, if presented to the Mexican
government, would have been rejected, and is therefore not entitled
to confirmation under the act of Congress against the United
States.
In concluding this opinion, we are sorry to have to state that
this record is not a clean one. It is tainted with fraud and
forgery. When this claim was originally pressed for confirmation,
it was on title papers conveying a grant of the land, which are now
withdrawn as being forgeries. If the espediente on which the claim
is now rested carried the title to the property, why substitute
forged grants? A crime is never committed without an adequate
motive, and it is clear that, in the opinion of the party who did
it, the genuine espediente fell short of a concession of the
potrero in full property.
We are gratified, on a consideration of the evidence, to learn
that the young De Haros, during the short period they occupied the
potrero, did not mistake the nature of the power conferred on them.
They did not add to the value of the land by improvements, and left
nothing on it but what could be easily removed and made available
to their heirs.
Decree affirmed.
MR. JUSTICE FIELD dissented.
[
Footnote 1]
The word is elsewhere translated as "places for common resort,"
or "pleasure grounds." -- REP.
[
Footnote 2]
This translation of the document is given in the record;
elsewhere the translation of the last four lines of the first
paragraph is given as follows:
"I have determined to permit the Messrs. De Haro to occupy the
beforementioned pasture ground, subjecting themselves to the limits
that shall be prescribed to the establishment of San
Francisco."
[
Footnote 3]
They were killed by the Americans during our war with
Mexico.
[
Footnote 4]
Escriche.
[
Footnote 5]
Or in the last edition (4th), p. 736, notes to
Prince v.
Case and
Rerick v. Kern. -- REP.
