A grant of land in California, purporting to have been made by
Governor Pio Pico on the 2d of May, 1846, and insufficient on the
archive papers, decided not to be helped by papers produced by the
claimant, these being found by the Court, upon the evidence in the
case, not genuine, but an afterthought, and produced in court only
because the growth of California had stimulated the cupidity of
speculators to experiment with fragments of title papers left
unfinished by Pico, and which were gathered up by our officers on
the conquest of the country.
Appeal from the District Court for the Northern District of
California respecting a land claim under the Act of March 3, 1851.
The grant purported to have been made on the 2d of May, 1846, by
Pio Pico, Moreno being secretary
ad interim; this Court
having decided that, after the 7th July, 1846, Pico had no powers
as governor. The claim was for "eleven leagues of land in
California, at the junction of the San Joaquin and Stanislaus
Rivers." The expediente was obtained from the archives, and was
among the papers of which Hartwell made an index. In consisted of a
petition, marginal order that the title issue, decree of
concession, and the borrador, or draft, of the title, to be given
to the party interested. It differed from other expedientes in
this, that there was no report, no diseno, no approval by the
departmental assembly, and because the whole proceedings were begun
and consummated on the same day. This document not being enough to
establish the title, the claimant, in order to make it complete,
produced from his own custody
Page 74 U. S. 744
the titulo which annexed conditions to the grant, a petition
asking for further time to comply with these conditions, the order
of the governor granting the request, and a certificate that the
departmental assembly approved the grant.
In the borrador, the land was described "as eleven leagues,
situated on the banks of the Rivers Stanislaus and San Joaquin,"
corresponding with the description given in the petition. The
titulo, issued on the same day as the borrador, directed "that the
measurement of the eleven leagues shall be on the banks of the
Stanislaus, of the width of one league, commencing where the two
rivers run."
The signature, "Pio Pico," to the grant in this case had a
different aspect, in certain particulars, from other signatures to
public documents of the same governor, especially in the letter
P.
Pico and Moreno were examined as witnesses. Pico testified that
he believed that the signature to the grant purporting to be his
was his, and he thought that the one purporting to be Moreno's was
Moreno's. As to the one purporting to be his own, and the
difference between it and some signatures admitted, he said that he
"was accustomed to sign his name sometimes in one way and sometimes
in another." He could not tell whether he had signed any document
at a date different from that which the document bore, but he
believed that he had not; he had no recollection when he signed
this document; he believed that he had made no grants after 1846,
but did not remember when in 1846 he ceased making them. He might
have made, elsewhere than in Los Angeles, grants dated as if there
made, but he was positive that he signed none of the papers in this
case in 1847 or 1848. He had no recollection of anything connected
with this particular grant, and "none whatever" of Roland's
application. He knew Roland, however, and had known him since 1840;
thought that he was naturalized; he remembered, at all events, that
he had married a Mexican woman; there was no particular reason, he
testified, for granting so much as eleven leagues to Roland "except
that he was an honest man, had a family and considerable
property."
Page 74 U. S. 745
The law, as he considered, imposed no limits; but eleven leagues
was his limit in fact.
Moreno testified that he believed the signature of Pico to be
genuine. He remembered that Roland "petitioned for lands" during
the short time that he, Moreno, was secretary, and that they were
granted to him, but he did not recollect the time when or the
circumstances under which the grant now set up was made; but he
stated that in 1846, the country was generally in a state of
agitation, and that great confusion prevailed in all the public
offices. The record contained a certificate from Pio Pico that the
departmental assembly met on the 4th day of May, 1846, and approved
this grant. It appeared, however, from the journals of the
departmental assembly that the earliest meeting in May was on the
8th of May, when minutes of the 29th of April were read and
approved. Pico, in his testimony given, accounted or attempted to
account for this by saying that at that time
"there was great informality in all public affairs, and that it
might have been that the notes of the meeting of the 4th were lost
or mislaid; that they might have been left on the table, and only
the draft of the 29th April been delivered to the secretary, to be
copied into the book."
He had no recollection that the grant was approved by the
departmental assembly or of his giving a certificate that it had
been, nor any reason whatever for believing that it had been except
his seeing what he was positively sure was his own certificate that
it was.
Some slight omissions and discrepancies were also pointed out in
the journal.
It was admitted by an agreement of record as a fact that on the
22d day of July, 1845, Governor Pico granted to Roland and one
Julius Horkman four leagues of land, and that the claim had been
prosecuted and confirmed. And that on the 6th day of May, 1846, he
granted to Roland and one Louis Avenas the sobrantes of certain
ranchos to the extent of nine leagues. This grant had been
presented for confirmation, and was now pending in the District
Court of California.
Page 74 U. S. 746
The district court rejected the claim and the claimant now
appealed here, the question at issue being whether the title here
set up was a genuine title to land in California acquired under
Mexican rule which this government was under obligations to
protect.
MR. JUSTICE DAVIS delivered the opinion of the Court.
The haste and recklessness, to use no harsher term, with which
this grant was made cannot but suggest grave doubts of the
bona
fides of the transaction. It nowhere appears that Roland had
any claim on the bounty of the Mexican nation or ability or
intention to occupy so large a tract of country, and yet Pico, near
the time when power passed from his hands in the midst of civil
commotion, disregarding the customary and established modes of
making concession of the public domain to meritorious persons,
without an informe, without a map, without any inquiry whatever,
grants to him eleven leagues of land (the maximum quantity
grantable to a single person) in a remote wilderness occupied by
hostile Indians, and of which so little was known that the best
description that could be given of it was that it was situated on
the banks of the San Joaquin and Stanislaus Rivers.
That the plain requirements of the Mexican colonization laws
were violated in these proceedings is very apparent from the
frequent decisions of this Court in this class of cases, but it is
unnecessary to examine the effect of this departure on this title,
if it were genuine, because in our opinion it has no validity. And
it is not the first time, in the history of California land cases
in this Court that grants made at or
Page 74 U. S. 747
near the time of the one in controversy purports to be made by
Governor Pico, and countersigned by his secretary, Moreno, have
been held not to be genuine. [
Footnote 1]
The struggle in this case, as in others of like character, is to
make up by parol proof for a deficiency of record evidence. Pico
and Moreno have been examined in support of the title, but their
testimony is singularly unsatisfactory. Pico has no recollection of
making the grant, nor indeed of Roland's application, but is able
to identify his signatures. Although he knew Roland -- that he had
married a Mexican woman, the number of his children, and the state
of his property -- yet he cannot recollect that he donated to him
an immense tract in a remote part of the country, and broke through
all the forms of law in order to do it quickly.
A transaction of this magnitude, where the favored party was
known, is not apt to be forgotten, and to say the least on the
subject, this want of memory on Pico's part, is in itself a
circumstance of great suspicion that the grant was never made.
Moreno's memory, if somewhat better than Pico's, is not enough so
to clear away the difficulties from this title.
It is a little singular, if Pico's signatures to the papers
produced by the claimant are authentic, that they should differ so
materially from his signatures to public documents of that date. In
Luco v. United States, [
Footnote 2] the same differences existed, and the Court
adopted the conclusion that they were not genuine. If these
inequalities in Pico's signatures create distrust as to their
genuineness, the different phraseology in describing the land in
the borrador from that used in the titulo increases the distrust in
the authenticity of this title.
In the borrador, the land is described "as eleven leagues,
situated on the banks of the Rivers Stanislaus and San Joaquin,"
corresponding with the description given in the petition,
Page 74 U. S. 748
while the titulo, issued on the same day as the borrador,
directs "that the measurement of the eleven leagues shall be on the
banks of the Stanislaus, of the width of one league, commencing
where the two rivers run." On the theory that the borrador and
titulo were actually signed on the same day, how did it come to
pass that the designation of the tract is so much more particular
in the one than in the other? It will be borne in mind that Pico
and Moreno have no definite recollection concerning this grant, and
yet in this most important point the title paper issued to the
claimant differs essentially from the one which forms part of the
expediente. Why think of the
necessity of this change of
description when both documents were made on the same day and form
part of the same transaction? The change of description cannot be
explained on the hypothesis that both papers were prepared and
executed on the same day, but it is easily understood if the titulo
was prepared at a subsequent date, when the parties interested
could see that a more definite description was wanting than that
which the borrador furnished.
But there are much graver difficulties affecting this title than
those which we have noticed.
The claimant, in attempting to prove too much, has established
the falsity of his title. This Court has frequently decided that
the approval by the departmental assembly was not necessary to the
validity of a grant, but has also observed that under certain
circumstances, the absence of such approval is entitled to great
weight. It was doubtless with a view to meet all objections and to
show the fullness of his title that the claimant furnished evidence
that the Assembly did approve the grant. If this evidence is true,
it strengthens the claimant's title, but if false it destroys all
confidence in it. It is important, therefore, to ascertain whether
the assembly met on the 4th day of May, 1846. Pico certifies that
it did meet on that day, and approved this grant, but it is clear
that very little reliance can be placed on this certificate, if
genuine, because when interrogated on the subject, Pico testifies
that he has no recollection of the approval, nor indeed of giving a
certificate to that effect, and but for the
Page 74 U. S. 749
fact that he sees his signature to the certificate of approval,
he has no reason to believe that the grant was approved. It is true
he testifies that there was great looseness in the administration
of public affairs at the time, but from this no inference can be
properly drawn that the departmental assembly convened on the 4th
day of May, 1846. It will not do to say that there might have been
a meeting of that body on that day. In the absence of direct proof
of the fact, there must be evidence affording reasonable grounds to
believe that the meeting actually took place and that the records
of it are lost. But we are not left in this case to rely on
conjectures or probabilities, for fortunately the journals of the
departmental assembly have been preserved, and they show that the
body was not in session at the date when the testimonio states the
grant to have been approved. It appears by the journals that the
earliest meeting in May was the 8th day of the month, when the
minutes of the meeting held on the 29th day of the preceding month
of April, as was customary, were read and approved.
It is not credible that the Assembly could have met between
these dates, and overlooked the fact in recording the proceedings
of the 8th of May.
To escape the force of this evidence, the claimant has pointed
out some discrepancies and omissions in the journals, but they are
not of a character requiring notice, and do not tend to prove that
the Assembly convened on the day when the testimonio purports to
have been signed.
If Pico does not remember the sale of this large tract of
country nor the fact of approval by the Assembly, of what value is
his testimony that the approval must have been obtained, because
the document certifying to it bears his signature?
But if what has been said is not enough to show that the alleged
grant was not issued to Roland, there is still further evidence in
the record which is conclusive on the point.
In deciding this case, we are to be governed by the laws and
usages of the Mexican government in granting lands before the
conquest of California and according to the principles
Page 74 U. S. 750
of equity. Tested by these rules, this claim has neither a legal
or equitable status.
Lands were to be granted by the colonization laws of Mexico, for
the purpose of cultivating and inhabiting them, and no more than
eleven leagues could be granted to a single individual. It is
stipulated in the record that on the 22d day of July, 1845,
Governor Pico granted to John Roland and Julius Horkman four
leagues of land, and that the claim has been prosecuted and
confirmed. And that on the 6th day of May, 1846, only four days
after the date of the grant in controversy, a still further grant
was made to John Roland and Louis Arenas of the sobrantes of
certain ranchos to the extent of nine leagues. This latter grant is
also claimed to be genuine, and has been presented for
confirmation, and is now pending in the District Court of
California. All these grants cannot be sustained, because Pico had
no power to make them. If they could be sustained, Roland would
receive from the Mexican government (if the surplus lands of the
ranchos reached nine leagues) a quantity of land exceeding
seventeen leagues. The United States is under no obligations to
recognize grants which aggregate, in the hands of one person, such
a quantity of land, even if they were actually made, but the strong
probability is that the eleven-league grant was abandoned when the
petition was presented, and the grant obtained for other lands in a
different part of the country. In no other way can we acquit Pico
of a willful departure from the law under which he acted and
account for the petition and grant of the 6th of May.
It is fair to infer from this record that Roland was an
intelligent man and knew the limit of the governor's power to grant
lands and the corrective applied by the departmental assembly when
he exceeded his authority. If so, he knew Pico had no right to make
the eleven-league grant, because he had already conceded to him the
undivided half of four leagues in July, 1845. It may be, before the
proceedings were completed for the eleven-league grant, he saw his
difficulty, and concluded to rely on the first grant made
Page 74 U. S. 751
to him, and to ask for a concession of other lands nearer the
settled part of the state, and which lands, although less in
quantity, were more desirable. Adopting this theory, the conduct of
Roland in asking for other lands on the 6th of May can be
explained. On any other theory, his petition on that day for an
additional grant, and Pico's action conceding it, were palpable
frauds committed against the letter and spirit of the colonization
laws of Mexico.
Without pursuing the subject further, in our opinion, this claim
should not be confirmed.
The archive papers fail to make out the title, and the papers
produced by the claimant are not genuine, but the result of an
afterthought, and would never have been produced in court if the
unparalleled growth of California had not stimulated the cupidity
of speculators to experiment with fragments of title papers left
unfinished by Pico, and which were gathered up by our officers on
the conquest of the country.
Decree affirmed.
MILLER and FIELD, JJ., dissenting.
[
Footnote 1]
Knight's Case,
1 Black 227;
Galbraith's
Case, 2 Black 394;
Luco's
Case, 23 How. 543.
[
Footnote 2]
64 U. S. 23
How. 543.
