Opinion of the Court. within the limits confirmed to San Francisco by the board of land commissioners, under an ordinance of the city. The defendant claimed title under a sale on execution upon a judgment recovered against the city. The rights of both parties, therefore, depended upon the existence of a title in the city, and the only question at issue between them was which had derived the paramount right from the city, the defendant disputing the possession which plaintiff claimed had been in his grantors. Under this state of the record it was, of course, absolutely impossible for the question to arise whether or not there was title in the city to the land in dispute, or the extent of land which the title of the city, whatever it was, covered. The sole question presented in this court was whether the lower court had committed error in rejecting certain proffered evidence, and the determination of this question involved the ascertainment of whether the title which was in the city was of such a character as could be seized and sold under execution. In deciding this question the opinion, whilst referring to the facts out of which the controversy arose, contains the statement (p. 336) that "the laws and ordinances of Spain for the settlement and government of her colonies on this continent provided for the assignment to pueblos or towns, when once established and officially recognized, for their use and the use of their inhabitants, of four square leagues of land." But this language was not material to the question before the court, and was not, therefore, a decision settling the matter. The decision in Grisar v. McDowell, supra, was, in fact, a denial of any right in San Francisco by operation of law, Spanish or Mexican, to four square leagues of land. The case involved a controversy between one holding a title under San Francisco and an officer of the United States in possession of a military reservation within the four square leagues. The court simply decided that, conceding some right or interest or claim in the city to land, it was subject to appropriation by the government for public uses. In a general reference to the claims of the city, there are dicta to the effect that by the laws of Spain a pueblo acquired some right in four square leagues VOL. CLXV-45 Opinion of the Court. of land, but the decision did not necessarily determine that question, as it was not before the court. In Brownsville v. Cavazos, supra, the question at issue was the title to land of Brownsville derived under Mexican laws. The action was ejectment by the city of Brownsville as the successor in the United States of the Mexican town of Matamoras, claiming title to a tract of land, to obtain title to which the city of Matamoras had instituted proceedings in expropriation or condemnation. The decision was that the city of Matamoras had never acquired title to the land because compensation had not been made, and that Brownsville consequently possessed no title. It is obvious that in the determination of that question the rights of pueblos, under Spanish laws, were not involved. It follows, therefore, that the reiteration, in the course of the opinion in that case, of the dicta found in the previous cases on the subject of the rights of pueblos under Spanish law cannot be treated as authoritative on that question. In San Francisco v. LeRoy, supra, the object of the bill filed was to quiet the title of complainant as against the city of San Francisco to certain lands within the city limits. There was no controversy as to the extent of land in which a Spanish pueblo acquired some right by its establishment, nor was the question considered by the court. In reciting the history of the litigation over the San Francisco claim to four square leagues, the learned justice who delivered the opinion of the court did not directly refer to the rights acquired under Spanish laws, but contented himself with an allusion to the rights which a Mexican pueblo acquired in lands by operation of Mexican laws. In passing from this brief review of the decisions of this court relied on by the city of Santa Fé, we note the reference to the case of Lewis v. San Antonio, 7 Texas, 288. In that case the court found that there had been an express grant of six square leagues to the predecessor of the town of San Antonio, and refuted the attempt to destroy the express grant on the ground that as, by operation of law, towns were entitled to four leagues, the express grant of six was void, by saying that Opinion of the Court. no law had been referred to supporting such an assertion. The implication from this adjudication refutes rather than supports the claim here contended for. But, in concluding the consideration of the foregoing contentions advanced by the city of Santa Fé, and which are shown by the review which we have made to be without merit, we will now demonstrate that the right to recover the land here claimed, is without foundation on other and distinct grounds. It cannot be doubted that under the law of Spain it was necessary that the proper authorities should particularly designate the land to be acquired by towns or pueblos, before a vested right or title to the use thereof could arise. Thus, by law 7, book 4, title 7, of the Recopilacion which regulated the mode of distribution of a tract granted by agreement to a founder of a settlement, it was provided as follows (2 White, New Recop. p. 46): "The tract of territory granted by agreement to the founder of a settlement shall be distributed in the following manner: They shall, in the first place, lay out what shall be necessary for the site of the town and sufficient liberties, [exidos,] and abundant pasture for the cattle to be owned by the inhabitants, and as much besides for that which shall belong to the town [propios]. The balance of the tract shall then be divided into four parts; one to be selected by the person obligated to form the settlement, and the remaining three parts to be divided in equal portions among the settlers." Law 11 of the same book and title, provides also (2 White, New Recop. p. 46): "The lots shall be distributed among the settlers by lot, beginning with those adjoining the main square, and the remainder shall be reserved to us, to give, as rewards, to new settlers, or otherwise, according to our will; and we command that a plan of the settlement be always made out.” And law 12 of the same book and title declares (2 White, New Recop. p. 47): "We command that no houses be erected within the distance of three hundred paces from the walls or breast works of Opinion of the Court. the town, this being necessary for the good of our service and for the safety and defence of the towns, as provided with regard to castles and fortresses." And it is well to notice at this point that Santa Fé was a fortified town; it possessed a castle, and not only the land upon which it was erected but a considerable extent of land surrounding it was in any view a part of the public domain, and passed as such to the United States. Mitchel v. United States, 15 Pet. 52, 89, 91. The Spanish understanding of the prerequisite designation is well illustrated by the following passages from Elizondo's Practica Universal Forense. At vol. 3, p. 109, he says: "The Kings, the fountains of jurisdictions, are the owners of all the terminos situated in their kingdoms, and as such can donate them, divide or restrict them, or give any new form to the enjoyment thereof, and hence it is that the pueblos cannot alienate their terminos and pastos without precedent royal license and authority." And at vol. 5, p. 226, he says: "There is nothing whatever designated by law as belonging to towns, other than that which by royal privilege, custom or contract between man and man, is granted to them, so that although there be assigned to the towns at the time of their constitution a territorio and pertinencias, which may be common to all the residents, without each one having the right to use them separately, it is a prerogative reserved to the princes to divide the terminos of the provinces and towns, assigning to these the use and enjoyment, but the domain remaining in the sovereigns themselves." Considering this subject, this court, speaking through Mr. Justice Field in Grisar v. Mc Dowell, 6 Wall. 363, 373, said: "These laws provided for the assignment to the pueblos, for their use and the use of their inhabitants, of land not exceeding in extent four square leagues. Such assignment was to be made by the public authorities of the government upon the original establishment of the pueblo, or afterwards upon the petition of its officers or inhabitants; and the land was to Opinion of the Court. be measured off in a square or prolonged form, according to the nature and condition of the country. All lands within the general limits stated, which had previously become private property or were required for public purposes, were reserved and excepted from the assignment. "Until the lands were thus definitely assigned and measured off, the right or claim of the pueblo was an imperfect one. It was a right which the government might refuse to recognize at all, or might recognize in a qualified form; it might be burdened with conditions and it might be restricted to less limits than the four square leagues, which was the usual quantity assigned." Moreover, the general theory of the Spanish law on the subject indicates that, even after a formal designation, the control of the outlying lands, to which a town might have been considered entitled, was in the King, as the source and fountain of title, and could be disposed of at will by him or by his duly authorized representative, as long as such lands were not affected by individual and private rights. This is shown by the quotation from Elizondo, already made. The provisions of law 14, title 12, book 4, of the Recopilacion (2 White, New Recop. p. 52), which is reproduced in the margin, illustrates the absolute control thus exercised by the King of Spain over the subject.1 1 Law 14, title 12, book 4 of Recopilacion. "Whereas we have fully inherited the dominion of the Indies; and, whereas the waste lands and soil which were not granted by the kings, nor predecessors, or by ourselves, in our name, belong to our patrimony and royal crown, it is expedient that all the land which is held without just and true titles be restored, as belonging to us, in order that we may retain, before all things all the lands which may appear to us and to our viceroys, audiences and governors, to be necessary for public squares, liberties, [exidos,] reservations, [propios] pastures and commons, to be granted to the villages and councils already settled, with due regard as well to their present condition as to their future state, and to the increase they may receive, and after distributing among the Indians whatever they may justly want to cultivate, sow and raise cattle, confirming to them what they now hold, and granting what they may want besides - all the remaining land may be reserved to us, clear of any incumbrance, for the purpose of being given as rewards, or disposed of according to our pleasure: For all this, we order and command the vice |