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Opinion of the Court.

p. 45.

The existence of this power of control and disposition as to municipal lands in the supreme Spanish authority finds a further and cogent exemplification in the decree of the Cortes of January 4, 1813, referred to by Hall in his Mexican Law,

A like power, it is to be inferred, is now asserted to be lodged in and has actually been exercised by the general government of Mexico. The constitution of Mexico of February 5, 1857, which went into effect September 16 of the same year, prohibited the acquisition or administration of real property by civil or ecclesiastical corporations without any other exception than the buildings intended immediately or directly for the service or purpose of the institutions, and hence arose the necessity for the abolition of municipal commons (exidos) in order to comply with this constitutional provision. In discussing the subject, Orozco, a Mexican writer, in his “ Legislation and Jurisprudence on Public Lands” (vol. 2, p. 1107), after pointing out the distinction between pueblo sites (fundo) and the ejidos or commons of a pueblo, says:

“ The municipal commons, (ejidos,) as has been seen, were excluded by the laws abolishing mortmain; but, in view of the aforesaid constitutional precept, it was logical to infer that the municipal commons (ejidos) passed to the control of the Federal treasury, as successor by subrogation of the property of corporations, and with so much the more reason since, recalling the origin of the municipal commons (ejidos) as soon as their existence became impossible, nothing is more natural and consequential than that those lands should revert to the dominion of him who granted them for the common use of the residents of the settlements."

After reciting the fact that in order to “reconcile respect for the supreme law with the interest of these pueblos,” the

roys, presidents and pretorial audiences, whenever they shall think fit, to appoint a sufficient time for the owners of lands to exhibit before them and the ministers of their audiences, whom they shall appoint for that purpose, the titles to lands, estates, huts and caballerias, who, after confirming the possession of such as hold the same by virtue of good and legal titles, or by a just prescription, shall restore to us the remainder, to be disposed of according to our pleasure.”

Opinion of the Court.

general law, after fixing the limits of the pueblos and dedicating to public uses the cemeteries and other public places therein, directed that the remainder of the land should be distributed among the fathers or heads of families, the author adds:

" In this way it has been carried into effect, titles signed by the president of the republic in favor of those residents of the pueblos being issued gratis by the department of public works, all of which proves that the Federal government and not the common councils, nor any other authority is that which, as competent in the matter, graciously grants the disposable part of the ancient municipal commons (ejidos).”

It was doubtless a consideration of this state of the Spanish law and the unquestioned power lodged in the King of Spain to exercise unlimited authority over the lands assigned to a town and undisposed of and not the subject of private grant (to all of which rights the United States succeeded as successor of the King of Spain and the government of Mexico), which caused Congress, in enacting the laws of 1864 and 1866, to carve out of the claim of San Francisco such land for public purposes as it saw fit, to authorize further reservations to be made within a period of one year, and to subject the lands relinquished to specific trusts imposed not alone upon the municipality of San Francisco, but also upon the general assembly of California. The power thus asserted by the act was not new, but conformed to and accorded with the practice of the government from the beginning. Thus, in 1812, Congress, by an act approved June 13 of that year, c. 99, 2 Stat. 748, for the settlement of claims to land in the Territory of Missouri (where rights under the laws of Spain existed), provided, by section 1, for the survey of the boundaries of towns and for the confirmation to individuals of such lots therein covered by actual possession, and for the confirmation of such commons to the towns as had been actually possessed and used by the town. So far as all the other commons, not so actually possessed, were concerned, and the lots within the town not possessed and claimed by individuals, the absolute right to dispose of the same was asserted by Congress, and a

Opinion of the Court.

portion thereof was dedicated by that body to public uses. The first section is reproduced in the margin; and the second section, accomplishing the results just indicated, reads as follows:

“Sec. 2. And be it further enacted, That all town or village lots, out lots or common field lots, included in such surveys, which are not rightfully owned or claimed by any private individuals, or held as commons belonging to such towns or villages, or that the President of the United States may not think proper to reserve for military purposes, shall be, and the same are hereby reserved for the support of schools in the respective towns and villages aforesaid : Provided, that the whole quantity of land contained in the lots reserved for the support of schools in any one town or village, shall not exceed one-twentieth part of the whole lands included in the general survey of such town or village."

1 Section 1 of Act of June 13, 1812 (2 Stat. 748). " That the rights, titles and claims, to town or village lots, out lots, common field lots and commons, in, adjoining and belonging to the several towns or villages of Portage des Sioux, St. Charles, St. Louis, St. Ferdinand, Villago a Robert, Carondelet, St. Genevieve, New Madrid, New Bourbon, Little Prairie and Arkansas, in the Territory of Missouri, which lots have been inhabited, cultivated or possessed, prior to the twentieth day of December, one thousand eight hundred and three, shall be and the same are hereby confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several right or rights in common thereto: Provided, that nothing herein contained shall be construed to affect the rights of any persons claiming the same lands, or any part thereof, whose claims have been confirmed by the board of commissioners for adjusting and settling claims to land in the said territory. And it shall be the duty of the principal deputy surveyor for the said territory as soon as may be, to survey, or cause to be surveyed and marketl (where the same has not already been done, according to law) the out boundary lines of the said several towns or villages so as to include the out lots, common field lots and commons, thereto respectively belonging. And he shall make out plats of the surveys, which he shall transmit to the surveyor general, who shall forward copies of the said plats to the Commissioner of the General Land Office, and to the recorder of land titles; the expenses of surveying the said out boundary lines shall be paid by the United States out of the moneys appropriated for surveying the public lands: Provided that the whole expense shall not exceed three dollars for every mile that shall be actually surveyed and marked."

Opinion of the Court.

The same course was adopted by Congress in the act of February 8, 1827, c. 9, 4 Stat. 202, providing for the settlement and confirmation of claims to lands in the former Spanish domain of East Florida. The third section of that act, confirming to the city of St. Augustine certain lands, is as follows:

“Sec. 3. And be it further enacted, That the commons in the city of St. Augustine be, and the same are hereby, confirmed to the corporation of said city, to the same extent that they were used, claimed and enjoyed under the Spanish government. And the parochial church and burying ground in possession of the Roman Catholic congregation are confirmed to them, and the old Episcopal Church lot is, hereby, relinquished and confirmed to the Incorporated Episcopal Church of St. Augustine: Provided always, That the grants in this section specified shall forever inure to the purposes for which they are confirmed, and shall not be alienated without the consent of Congress.”

So, also, it may well be supposed that it was upon this aspect of the imperfect nature of right in land claimed by towns in territory formerly owned by Spain and Mexico, and the long established construction of such rights evidenced by the foregoing acts of Congress, which caused this court, speaking through Mr. Justice Field, in Grisar v. McDowell, supra, to say, p. 373:

“ Even after the assignment the interest acquired by the pueblo was far from being an indefeasible estate such as is known to our laws. The purposes to be accomplished by the creation of pueblos did not require their possession of the fee. The interest

amounted to little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands or as a source of revenue, or for other public purposes. And this limited right of disposition and use was in all particulars subject to the control of the government of the country.”

How completely this language applies to the case here presented is demonstrated when it is considered that there is no

Opinion of the Court.

proof of a single act of ownership by the city, either in its own right or by anybody else, claiming to hold under it, and that it is asserted in the brief of the counsel for the government and not denied that practically every foot of the area of four square leagues now claimed by the city is covered by grants made by the governors of the province of New Mexico to others. Whether these grants be valid or not of course is not before us for consideration.

An inchoate claim, which could not have been asserted as an absolute right against the government of either Spain or Mexico, and which was subject to the uncontrolled discretion of Congress, is clearly not within the purview of the act of March 3, 1891, c. 539, creating the Court of Private Land Claims, 26 Stat. 854, and, therefore, is beyond the reach of judicial cognizance.

The duty of protecting imperfect rights of property under treaties such as those by which territory was ceded by Mexico to the United States in 1848 and 1853, in existence at the time of such cessions, rests upon the political and not the judicial department of the government. Les Bois v. Bramell, 4 How. 449, 461; Ainsa v. United States, 161 U. S. 208, 222. To the extent only that Congress has vested them with authority to determine and protect such rights, can courts exercise jurisdiction. Where, therefore, a tribunal of limited jurisdiction is created by Congress to determine such rights of property, a party seeking relief must present for adjudication a case clearly within the act, or relief cannot be given. United States v. Clarke, 8 Pet. 436, 444.

Section 13 of the act provides that all the proceedings and rights theretofore referred to in the act shall be conducted and decided subject to certain provisions therein enumerated and to the other provisions of the act. Among the provisions contained in section 13 is the following:

“ First. No claim shall be allowed that shall not appear to be upon a title lawfully and regularly derived from the government of Spain or Mexico, or from any of the states of the republic of Mexico having lawful authority to make grants of land, and one that if not then complete and perfect at the date

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