States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States. In the said territories, property of any kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States."7 By protocol, made the 26th of May, 1848, between the Commissioners of the United States and Mexico it was explained that "The American government by suppressing the 10th article of the treaty of Guadalupe, did not intend in any way to annul the grants of lands made by Mexico in the ceded territories. These grants, notwithstanding the suppressing of the article of the treaty, preserve their legal value, which they may possess, and the grantees may cause their legitimate titles to be acknowledged before the American tribunals. Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territories, are those which were legitimate titles under the Mexican laws of California and New Mexico, up to the 13th of May, 1846, and in Texas, up to the 13th of March, 1836." The declaration of the Mexican commissioners that no grants of land were made by Mexican governors, after May 13, 1846, cannot affect the rights of parties under grants made after that date, while the governors still had in fact authority." July 7, 1846, is the date recognized by our political department as the termination of the authority of such governors, Bryan et al. v. Kennett et al., 113 U. S. 179. "The term 'property' comprehends every species of title, inchoate or complete, legal or equitable, and embraces rights which lie in contract, executory as well as executed." 7 Art. VIII; 9 St. at L. 922. 8 Public Treaties of the U. S., p. 502. 9 U. S. v. Pico, 22 How. 406; U. S. v. Yorba, 1 Wall. 412. and this the judiciary follows.10 The authority of the former government existed while in actual possession." By the Gadsden Purchase, a treaty between Mexico and the United States, concluded December 30, 1853, it was provided that, "All the provisions of the eighth and ninth, sixteenth and seventh articles of the treaty of Guadalupe Hidalgo, shall apply to the territory ceded by the Mexican Republic in the first article of the present treaty, and to all the rights of persons and property, both civil and ecclesiastical, within the same, as fully and effectually as if the said articles were herein again recited and set forth." 12 "No grants of land within the territory ceded by the first article of this treaty bearing date subsequent to the daytwenty-fifth of September when the minister and subscriber to this treaty on the part of the United States proposed to the government of Mexico to terminate the question of boundary, will be considered valid or be recognized by the United States, or will any grants made previously be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico." 13 § 459. Former method of settlement, and decisions as to validity of Mexican and Spanish land grants.- For many years the adjustment of these claims has been attempted through the instrumentality of the General Land Office, followed by a Congressional reference and confirmation.1 Many grants prior to 1871 were in this way finally disposed of; but there are still pending, now forty years after the treaties, a large number of unconfirmed grants, where the intricacies are so great that Congress seems to have been unwilling to act. 10 Mumford v. Wardwell, 6 Wall. 423; Stearns v. U. S., 6 Wall. 589; U. S. v. Wilson, 1 Black, 267; U. S. v. Castillero, 2 Black, 17; Hornsby v. U. S., 10 Wall. 224; Alexander v. Roulet, 13 Wall. 386. 11 U. S. v. Watkins, 97 U. S. 219. 12 Art. V; 10 St. at L. 1031. 13 Art. VI; 10 St. at L. 1031. § 459. Act of July 22, 1854, 10 St. at L. 308; Arizona, July 15, 1870, 16 St. at L. 291; Colorado, Feb. 28, 1861, 12 St. at L. 172; Utah, March 14, 1862, 12 St. at L. 355; Wyoming, Feb. 5, 1870, 16 St. at L. 64; Nevada, March 2, 1861, 12 St. at L. 209. Examples of Congressional confirmation in accordance with Act of July 22, 1854: 11 St. at L. 374; 12 St. at L. 71; 12 St. at L. 887; 13 St. at L. 125; 14 St. at L. 588; 15 St. at L. 438; 15 St. at L. 275; 15 St. at L. 342; 16 St. at L 373; 20 St. at L. 592. In cases of such difficulty as these, a judicial investigation was clearly the only possible means of a satisfactory and fair adjustment, and the bill recently passed is similar to bills for the purpose that have been pending before many previous Congresses. Such judicial investigation is now for the first time possible by this Court of Private Land Claims, under the Act of March 3, 1891.2 Similar legislation has been held constitutional. The cases referred to throughout this chapter are principally decisions of the Federal courts upon the Act of March 3, 1851, relating to private land claims in California, while the lands to which this new act applies are situated in other States and Territories than California, and have heretofore fallen under the Act of 1854.4 These decisions therefore are not directly in point; but as the subject-matter is the same, and the provisions of the earlier act evidently influenced the act creating this court, we may regard them as valuable precedents by analogy. 226 St. at L. 854, ch. 539. Beard v. Federy, 3 Wall. 478. 49 St. at L. 631, ch. 41. 5 U. S. v. Cambuston, 20 How. 59. Interpretation of Mexican Law and Grants.-The laws of Mexico are not regarded as foreign laws, but as those of an antecedent government. Fremont v. U. S., 17 How. 542; U. S. v. Cambuston, 20 How. 59, 64; U. S. v. Perot, 98 U. S. 428. The authority of the former government continued while in actual possession. U. S. v. Watkins, 97 U. S. 219. The authority of Mexican officials ceased after July 7, 1846. U. S. v. Pico, 22 How. 406; U. S. v. Wilson, 1 Black, 267; U. S. v. Yorba, 1 Wall. 412; Mumford v. Wardwell, 6 Wall. 423; Hornsby v. U. S., 10 Wall. 224; More v. Steinbach, 127 U. S. 70. The law of 1824 and Regulations of 1828 were the only laws in force for granting public lands in California, at the acquisition of that territory by the United States. Bouldin v. Phelps, 30 Fed. R. 547. Grants not recognized by Mexico are rejected by the United States. Zia v. U. S., 168 U. S. 198; U. S. v. Sutter, 21 How. 170; U. S. v. Nye, 21 How. 408; U. S. v. Bassett, 21 How. 412; U. S. v. Bennitz, 23 How. 255; U. S. v. Rose, 23 How. 262; Cessna v. U. S., 169 U. S. 165. A grant valid against Mexico, although no particular tract had been designated at the cession to the United States, was held to be valid. Fremont v. U. S., 17 How. 542. The governors had the right to make grants in conformity with the law of 1824 and Regulations of 1828. U. S. v. Peralta, 19 How. 343; Mumford v. Wardwell, 6 Wall. 423; Bouldin v. Phelps, 30 Fed. R. 547. See Camon v. U. S., 171 U. S. 277; Perrin v. U. S., 171 U. S. 292. The governor's decree, sometimes, was only a personal license. Such a title is not recognized by the United States. De Haro v. U. S., 5 Wall. 599; Serrano v. U. S., 5 Wall. 451. A prefect had no such power in 1840. Crespin v. U. S., 168 U. S. 208. An intendant had such power after the separation of Mexico from Spain. Ely v. U. S., 171 U. S. 220. An approval of a grant by the government § 460. Organization of the Court of Private Land Claims. The court consists of a chief justice and four associate justices appointed by the President with the advice and consent of Sonora in 1838 was not an approval by the national government of Mexico. U. S. v. Coe, 170 U. S. 681. The departmental treasurer of Sonora had no such power. Faxon v. U. S., 171 U. S. 244. As to the power of an alcalde, see Hays v. U. S., 175 U. S. 248; U. S. v. Pena, 175 U. S. 500. As to the power of a treasurer of a department, Faxon v. U. S., 171 U. S. 244. In 1833, and thence till 1838, the several States in Mexico had the power to grant land within their respective limits. Camon v. U. S., 171 U. S. 277: Perrin v. U. S., 171 U. S. 292. But the territorial deputation of New Mexico had not. Hays v. U. S., 170 U. S. 637. A departmental assembly had no power to make grants, U. S. v. Vigil, 13 Wall. 449; not even when the governor presided, Chavez v. U. S., 175 U. S. 552. Departmental assemblies had the right to confirm, reject, or modify concessions of the governor, and such action was conclusive. U. S. v. Hartnell, 22 How. 286. The absence of approval by a depart mental assembly does not necessarily defeat a grant. U. S. v. Hartnell, 22 How. 286; U. S. v. Sutter, 21 How. 170; Beard v. Federy, 3 Wall. 478; Bouldin v. Phelps, 30 Fed. R. 547. It was the duty of the governor, and not of the grantee, to submit a grant to the assembly, and his neglect to do so would not divest title. Hornsby v. U. S., 10 Wall. 224; Bouldin v. Phelps, 30 Fed. R. 547. Delivery by juridical possession was necessary for a complete title. Graham v. U. S., 4 Wall. 259; More v. Steinbach, 127 U. S. 70. Mere possession without a grant confers no title. U. S. v. Chaboya, 2 Black, 593; Peralta v. U. S., 3 Wall. 434; Serrano v. U. S., 5 Wall. 451; Hornsby v. U. S., 10 Wall. 224. Nor does a grant without possession. U. S. v. Repentigny, 5 Wall. 211; More v. Steinbach, 127 U. S. 70. Time may act as a bar to a claim. Manning v. San Jacinto Tin Co., 9 Fed. R. 726. A condition in a Mexican grant inconsistent with the public policy of the United States is held to have been annulled by the conquest. Fremont v. U. S., 17 How. 542. When a condition precedent is not fulfilled no title passes; it is not a grant, but only a contract to convey upon performance of the condition. Interstate L. Co. v. Maxwell L. G. Co., 41 Fed. R. 275. Non-compliance with the conditions of a grant does not work a forfeiture, unless an intention to abandon a grant is shown. Fremont v. U. S., 17 How. 542, 560; U. S. v. Reading. 18 How. 1. Nor does a condition subsequent. U. S. v. Vaca, 18 How. 556. See Gonzales v. Ross, 120 U. S. 605. A condition of settlement may be complied with in a reasonable time. U. S. v. Larkin, 18 How. 557. Absence of proof of survey or performance of condition show abandonment. Fuentes v. U. S., 22 How. 443. When there is an express condition that a certain act must be performed within three years, and this is not done, the grant will not be sustained in the absence of a proper excuse. McMicken v. U. S., 97 U. S. 204. Conditions as to inhabitancy and cultivation are not strictly enforced, Fremont v. U. S., 17 How. 542; U. S. v. Larkin, 18 How. 557; U. S. v. Reading, 18 How. 1; U. S. v. Yorba, 1 Wall. 412; but an unreasonable delay works a forfeiture, U. S. v., Reading, 18 How. 1. The failure of authorities to perform their duty of the Senate, who hold their offices until June 30, 1902,1 originally till December 31, 1895. On this date the court ceases to exist, unless its term is again extended by Congress. Three of these judges constitute a quorum. The act also provides for the appointment of a clerk, "who shall attend all sessions of the court," and a deputy clerk for each place of holding the does not work a forfeiture of the grant. Fremont v. U. S., 17 How. 542. A confirmation by the Mexican authorities will be reversed or denied when all the circumstances show probable fraud in the grantas alteration in the title papers, or a date just previous to the possession of the United States, or no possession of the lands granted by the claimants, or slight evidence of the genuineness of the grant. U. S. v. Galbraith, 22 How. 89; U. S. v. Pico, 23 How. 321; U. S. v. Castro, 24 How. 346; U. S. v. Knight, 1 Black, 227; U. S. v. Auguisola, 1 Wall. 352. A legislative grant is construed most strongly against the grantee. Sidell v. Grandjean et al., 111 U. S. 412. A Spanish or Mexican title does not convey the minerals contained in the land granted, nor any interest in them. Mines and minerals can only be acquired under the mining ordinances. The Mexican colonization law of 1824 and the Regulations of 1828, pursuant thereto, do not apply to mineral lands, or mines, which could not be granted thereunder. U. S. v. Castillero, 2 Black, 17, 217. Where Congress authorizes a court to examine private land claims, the United States being a party therein, and in deciding it "to be governed by the law of nations and of the country from which the title is derived; by principles of natural justice and according to the law of nations and the stipulations of treaties, an objection of mere alienage and consequent incapacity to take or hold must be regarded as waived." U. S. v. Re pentigny, 5 Wall, 211. See also U. S. v. Reading, 18 How. 1. A grant to an infant is voidable, not void. Palmer v. Low, 98 U. S. 1. By the laws of Mexico, an Indian is capable of receiving and holding a grant the same as a white person. U. S. v. Ritchie, 17 How. 525. And they have the same rights as citizens of the United States. U.S. v. Santistevan, 1 N. M. 583; U. S. v. Lucero, 1 N. M. 422. The assignment of Pueblo lands upon petition is sufficient evidence of title. U. S. v. Pico, 5 Wall. 536. Without such assignment recognition by the United States is necessary. Grisar v. McDowell, 6 Wall. 363. Grants of lands to towns, under Mexican law, are protected by the treaty of Guadalupe Hidalgo, and such lands are to be held in trust for the inhabitants. Townsend v. Greeley, 5 Wall. 326; Lynch v. Bernal, 9 Wall. 315. A pueblo or town, duly formed and officially recognized, became entitled to the use of certain lands, which were upon petition assigned to it, and such assignment was a sufficient evidence of title. U. S. v. Pico, 5 Wall. 536. "The decisions of this court in cases of claims to land in Louisiana and Florida are not applicable where precise and recent regulations exist, directing the manner in which land shall be granted." U. S. v. Cambuston, 20 How. 59. § 460. 126 St. at L. 854, § 19; 29 St. at L. 577; 31 St. at L. 132. 2 Ibid. 3 Ibid. 426 St. at L 854, § 1. |