« ForrigeFortsett »
duties of the register and receiver, and also the circumstances connected with the act of February 25, 1869.
Let it be remembered that, by this act, Congress was providing for the extension of surveys over the entire claim of Vigil and St. Vrain, in conformity with our system of public surveys, thereby treating their whole claim as part of the public domain.
It was then provided that these derivative claimants of Vigil and St. Vrain should establish their claims to the satisfaction of the register and receiver. This devolved upon these officers very similar duties to those that are imposed under our homestead and pre-emption laws, which require judgment to be formed in regard to facts as well as to the laws governing such facts.
I cannot resist the conclusion that it was intended to subject to the supervision and control of the Commissioner, under the act of July 4, 1836, the duties imposed upon the register and receiver in regard to the derivative claimants under Vigil and St. Vrain. I doubt if Congress would have referred the rights of such derivative claimants to these officers, but for the fact that their decisions would be subject to such supervision.
If I had serious doubts in reference to the construction of the act now under consideration, I should be inclined to hold in favor of the right of appeal until such doubts were removed, because I think the public service would suffer from a contrary ruling. The amount of ability, intelligence, and knowledge which we are able to secure in persons necessarily employed as registers and receivers, would make it dangerous to devolve such important powers upon them without the right of appeal.
This question has been substantially decided by the Supreme Court of the United States in the case of Barnard's heirs v. Ashley, (18 Howard, p. 43,) at the December term, 1855. It was conceded in that case that, under the pre-emption laws of 1830-34, the power of ascertaining and deciding on the facts which entitled a party to the right of preemption was vested in the register and receiver of the land-district in which the land was situated, from whose decision there was no direct appeal to higher authority.
The court, referring to this, alludes to certain circumstances in which, under this legislation, the right of supervision over the acts of the register and receiver might be exercised by the Commissioner of the General Land-Office, and quotes the first section of the act of July 4, 1836. The court then proceeds to say:
The necessity of "supervision and control" vested in the Commissioner, acting under the direction of the President, is too manifest to require comment further than to say that the facts found in this record show that nothing is more easily done than apparently to establish, by ex parte affidavits, cultivation and possession of particular quarter-sections of land when the fact is untrue That the act of 1836 modifies the powers of registers and receivers to the extent of the Commissioner's action in the instances before us, we hold to be true. But if the construction of the act of 1836 were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety.
After carefully reviewing the act of February 25, 1869, I am unable to resist the conclusion that the duties therein devolved upon these officers are embraced in the act of July 4, 1836; and with the light thrown upon this question by the decision of the Supreme Court of the United States, before referred to, I am compelled to accept the con
clusion that an appeal lies from their decision in the case now before me.
I am therefore of the opinion that it was not the intention of Congress to make the register and receiver final arbiters in reference to the rights of such derivative claimants. Had Congress intended to make their decisions conclusive, they would, I think, have used some expressions leading necessarily to the inference that such was their intention, or else they would have selected persons not connected with the Land-Office, and constituted them commissioners to decide upon the rights of such derivative claimants, as was done for the settlement of private land-claims in California, Louisiana, and elsewhere.
Before concluding this opinion, I wish to refer particularly to the act of Congress, passed June 2, 1858, entitled "An act to provide for the location of certain confirmed private land-claims in the State of Missouri, and for other purposes." This act, after making provisions in reference to the location of certain confirmed private land-claims, in its third section provides :
That in all cases of confirmation by this act, or where any private land claim has been confirmed by Congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatsoever, other than the discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor-general of the district in which such claim was situated, upon satisfactory proof that such claim has been so confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant, or his legal representatives, certificate of location for a quantity of land equal to that so confirmed and unsatisfied.
It will be observed that this act authorizes the surveyor-general, under certain circumstances, to issue a certificate of location for the quantity of land to which the applicant was entitled, and which land had, for any satisfactory reason, been lost to the applicant. This certificate was to be issued upon proof satisfactory to the surveyor-general that the claim had been confirmed, and that it remained, in whole or in part, unsatisfied. And such certificate, by the act, could be used in locating any of the lands of the United States subject to sale or private entry, at a price not exceeding $1.25 per acre.
The duty thus imposed upon the surveyor-general was very similar to that imposed upon the register and receiver by the act of 1860.
It is difficult to discover any substantial difference in these two acts, so far as they impose certain duties upon the register and receiver and the surveyor-general.
Under this act the Department assumed to regulate by rules the conduct of the surveyor-general in discharging the duties devolved upon him, and the Land-Office has uniformly and continuously, for a period of sixteen years, exercised supervision and control over the acts of the surveyor-general connected with the discharge of his duties under the act of June 2, 1858.
The right of such supervision and control has never been questioned. It seems to have been conceded by all those interested in questions arising under this act that such supervisory power exists, and was authorized by the act of July 4, 1836.
The observations made in reference to the act of June 2, 1858, are applicable to the private act of June 21, 1860, (12 Stat., p. 866,) as well as to the practice of the Land-Office in executing the provisions of this private act. There are many other statutes that might be
referred to in support of the same conclusion, but it is deemed unnecessary to mention them particularly.
The refusal to recognize the right of appeal in the case now before me would reverse the practice of the Land-Office, and might result in disturbing interests that are at present free from doubt or controversy. The motion under consideration is overruled, and the papers filed are herewith transmitted.
C. DELANO, Secretary. HON. S. S. BURDETT, Commissioner of the General Land-Office.
EXTRACT OF A TREATY,
Made with the Mexican government, which accompanied a report dated November 14, 1851, from the United States surveyor-general of California, respecting the ratio of land measures between those employed under the Mexican government and those in use in the United States.
[From the Mexican ordinance for land and sea.]
Article 20th of the agreement entered into between the minister plenipotentiary of the Mexican republic and her agents in London, the 15th of September, 1837, with the holders of Mexican bonds.
20th. In compliance of what is ordered by the seventh article of the preceding law, and in order to carry into effect the stipulation in the preceding agreement, in regard to the holders of bonds deferred, it is declared that the act of which mention is made in said agreement answers to 4,840 English yards squared, equivalent to 5,762.403 Mexican varas square; inasmuch that the sitio de gañado moyer contains 4,338.964 acres, the Mexican vara having been found, by exact measures, equal to 837 French millimetres, and consequently to *646% of the English imperial yard.
Reducing the ratio of 4,840 square yards and 5,762.403
square varas, the vara will be......
Reducing the 4,338.464 acres..
32.99312 32.99311 32.992884
TABLE OF LAND MEASURES ADOPTED IN THE REPUBLIC OF MEXICO.
* From a translation of a note at the foot of the page, it appears that the first figure
6 should be 9.
2,500 1,200 1,440,000
Names of the Measures.
The Mexican vara is the unit of all the measures of length, the pattern and size of which are taken from the Castilian vara of the mark of Burgos, and is the legal vara used in the Mexican republic. Fifty Mexican varas make a measure which is called cordel, which instrument is used in measuring lands.
The legal league contains 100 cordels, or 5,000 varas, which is found by multiplying by 100 the 50 varas contained in a cordel. The league is divided into two halves and four quarters, this being the only division made of it. Half a league contains 2,500 varas, and a quarter of a league 1,250 varas. Anciently the Mexican league was divided into three miles, the mile into a thousand paces of Solomon, and one of these paces into five-thirds of a Mexican vara; consequently the league had 3,000 paces of Solomon. This division is recognized in legal affairs, bat has been a very long time in disuse, the same as the pace of Solomon, which in those days was called vara, and was used for measuring lands. The mark was equivalent to two varas and seven-eighthsthat is, eight marks containing twenty-three varas-and was used for measuring lands.
IV. JUDICIAL DECISIONS.
PRIVATE LAND CLAIMS.
(a) In Alabama and Mississippi.
A donation certificate, under the act of 3 March, 1803, gives a title superior to that acquired by a purchase at a public land sale. Ross v. Barland, 1 Pet., 655.
Such certificate is sufficient if it show the occupancy required by the act, and the particular land granted. Ibid.
The commissioners appointed under that act were empowered to hear evidence as to the time of the evacuation by the Spanish troops, and to decide upon the fact.
A Spanish grant, confirmed under the act of 3 March, 1803, is valid, as against any other claimant under a Spanish title. Robinson v. Minor, 10 H., 627.
The decisions of the commissioners under the act of 31 March, 1814, and its supplements, are conclusive between the parties, in all cases within their jurisdiction. Brown v. Jackson, Wh., 218. S. P. Landes v. Brant, 10 H., 348.
The exception in the act of 26 May, 1824, confirming certain lots to the city of Mobile, and to individuals, refers to grants made by Spanish authorities, after the acquisition of Louis iana by the United States and before the cession of Florida, of lands lying between the Mississippi and Perdido rivers, and in dispute between the two governments. Pollard's Heirs v. Kibbs, 14 Pet., 353. And see Mobile v. Eslava, 16 Pet., 234. Mobile v. Hallett, Ibid., 261. Mobile v. Emannes, 1 H., 95 Pollard v. Files, 2 H., 591.
Such claims are within the power of Congress to confirm. Jurisdiction of the commissioners appointed to settle the claims of the New England Mississippi Land Company to the Yazoo lands. Gilman v. Brown, 1 Mas., 191. s. c., 4 Wh., 255.
(b) In Lousiana, Missouri and Arkansas
Under the acts of 1805 and 1807, the confirmation by the commis
sioners of a land claim in Louisiana, does not necessarily enure to the benefit of the holder of the true French or Spanish title. Strother v. Lucas, 6 Pet., 763.
Where the French owner twice conveyed, and possession went with the junior title, and its holder presented his claim, which was confirmed, and the holder of the elder title did no act under the laws of Congress, he was held entitled to no benefit from such confirmation. Ibid.
To entitle a claimant to confirmation under the act of 1805, it is necessary that the parties should be residents, that the Indian title should have been extinguished, and that the land should have been actually inhabited and cultivated by the grantees, or for their use. United States v. D'Auterieve, 10 H., 609. United States v. Castant, 12 H., 437.
The act of 26 May, 1824, did not create any rights, or enlarge those previously existing. Ibid.
A patent issued to a claimant on a confirmation under the act of 1807 is conclusive evidence that he had the best Spanish title, and was the lawful owner thereof. Landes v. Brant, 10 H., 348.
Where the inchoate title was sold in execution, whilst proceedings were pending for its confirmation, and a patent was subsequently granted to the debtor, it enured to the benefit of the sheriff's vendee. Ibid. S. P., Massey v. Papin, 24 H., 362.
A patent was necessary to perfect a title founded on a settlement right before its issuance; the title, though finally confirmed, was but an equitable one.
The act of 3 March, 1807, did not grant legal titles, it merely enables the owners of inchoate titles to obtain patents. Burgess v. Gray, 16 H., 48.
The act of 12 April, 1814, confirmed only such titles; as had been rejected for want of evidence of inhabitancy, on the 20th December, 1803. Ibid.
Under the act of 3 March, 1807, a claimant of land in Missouri obtained, by the decision of the commissioners, no title to any particular tract; a survey was necessary, in order to locate it, before his title could attach. West v. Cochran, 17 H., 403.
The proviso to the 10th section of the act of 3 March, 1811, merely withdrew lands claimed under that act from public sale, until the commissioners had decided on the claim. Ham v. Missouri, 18 H., 126.
The act of 13 June, 1812, confirming commons, &c., in St. Louis, excepted out of its operatian only lands the claims whereto had been confirmed by the board of commissioners. Les Bois v. Bromell, 4 H., 449. Menard's Heirs v. Massey, 8 H., 293. Willot v. Sandford, 19 H., 79. The owner of an inchoate Spanish title to land in Missouri who had not presented a petition for its confirmation prior to 29 May, 1829, was barred by a subsequent legislative confirmation to an opposing claimIbid. S. P., Robinson v. Minor, 10 H., 627.
The owner of such claim never had any standing in court, except as conferred upon him by the political power. Ibid.
Under the act of 1812, it was not necessary that the claimant of an out-lot should have had, either under the French or Spanish authorities, or those of the United States, any written recognition of his title, or any public survey. Guitard v. Stoddard, 16 H., 494. S. P., Savignac v. Garrison, 18 H., 136. Glasgow v. Hortiz, 1 Bl., 595.
Nor was he required by the act of 1824 to present the evidence of his claim and have it recognized. Ibid.