the Mexican government, reference must, in the first instance, be had to the archives of the country embracing the period when the grant purports to have been made. If they furnish no information on the subject, a strong presumption naturally arises against the validity of the instrument produced, which can only be overcome, if at all, by the clearest proof of its genuineness, accompanied by open and continued possession of the premises."

Under the civil, as at the common, law, a for-
mal tradition or livery of seisin of the prop-
erty was necessary. As preliminary to this
proceeding the boundaries of the quantity
granted had to be established, when there
was any uncertainty in the description of
the premises. Measurement and segregation
in such cases, therefore, preceded the final
delivery of possession. By the Mexican law
various regulations were prescribed for the
guidance, in these matters, of the magis-
trates of the vicinage. The conditions an-
nexed to the grant in the case at bar required
the grantee to solicit juridical possession
from the proper judge. In compliance with
this requirement, within four months after
the issuance of the grant, he presented the
requested him to designate a day for deliv-
ering the possession. The judge designated
a day, and directed that the adjoining pro-
prietors be cited, and that measurers and
counters be appointed. On the day desig-
nated the proprietors appeared, and two
measurers and two counters were appointed
and sworn for the faithful discharge of their
duties. A line provided for the measure-
ment was produced, and its precise length
ascertained. The measurers then proceeded
to measure off the land, the judge and the
proprietors accompanying them. The meas-
urement being effected, the parties went to
the center of the land, and there the judge
directed the grantee to enter into the posses-
sion, which he did, and gave evidence of the
fact by pulling up grass and making demon-
strations as owner of the land.'. Of the vari-
ous steps thus taken, from the *appointment[118]
of the day to the final act of delivery, a com-
plete record was kept by the judge, and by
him transmitted to the grantee after being
properly entered upon the 'book of posses-
sions." "

In Peralta v. United States, 3 Wall. 434,
18 L. ed. 221, there was considered the va-
lidity of an alleged grant claimed to have
been made in the early part of 1846. The
grant was attempted to be established by
the introduction in evidence, from private
hands, of an expediente, embracing docu-instrument to the judge of the district, and
ments exhibiting the proceedings had pre-
liminary to the making of the alleged grant,
including an order of the governor, based
upon the report of a prefect, that a title is-
sue, and parol proof of the execution of a
formal grant. În the course of the opinion
affirming the decree of the district court re-
jecting the grant, the court reiterated for-
mer declarations, saying (p. 440, L. ed. p.
223):

"The colonization regulations of 1828 constitute the laws and usages' by which the validity of a. Mexican title is to be determined. It is not important to restate the nature and extent of those regulations, for they have been so often commented on that they are familiar to the profession. The Mexican nation attached a great deal of form to the disposition of its lands, and required many things to be done before the proceedings could ripen into a grant. But the important fact to be noticed is, that a record was required to be kept of whatever was done. This record was a guard against fraud and imposition, and enabled the government to ascertain with accuracy what It appears from the adjudications of this portions of the public lands had been alien- court that the formal grants made to land ated. The record was the grant, and within the territory of California enumerated out it the title was not devested. The gov- conditions attached to the grant, in seeming ernor was required to give a document to the compliance with the spirit if not the letter party interested, which was evidence of title, of the Mexican colonization law, and with and enabled him to get possession; but this the exactions of the regulations adopted to 'titulo' did not devest the title, unless rec-execute the same. It certainly cannot be ord was made in conformity with law." 117] *The solemnity of juridical possession as connected with the investiture of a private person with a complete and perfect title to public lands of Mexico has been commented upon in various decisions of this court. Malarin v. United States, 1 Wall. 289, 17 L. ed. 595; Graham v. United States, 4 Wall. 259, 18 L. ed. 333; Van Reynegan v. Bolton, 95 U. S. 33, 24 L. ed. 351; United States v. Pico, 5 Wall. 536, 18 L. ed. 695; and More v. Steinbach, 127 U. S. 70, 32 L. ed. 51, 8 Sup. Ct. Rep. 1067.

questioned that, under Spanish dominion, the public lands were not granted in the first instance, in fee, to settlers or colonists, freed from conditions. As said by this court in Chaves v. United States, 168 U. S. 188, 42 L. ed. 430, 18 Sup. Ct. Rep. 76, speaking of the Spanish law in force in 1788:

"Lots and lands were distributed to those who were intending to settle, and it was provided that 'when said settlers shall have lived and labored in said settlements during the space of four years, they are hereby empowered, from the expiration of said term, In Malarin v. United States, discussing to sell the same and freely to dispose of them the claim of the execution of an alleged grant at their will as their own property.' But of public lands in the territory of Califor-confirmation by the audiencia, or the governnia in 1840, the court said (p. 289, L. ed. p. 595):

or if recourse to the audiencia was impracticable, after the four years had elapsed, was "When the grant to Pacheco was issued required in completion of the legal title." there still remained another proceeding to The constituents of the preliminary pabe taken for the investiture of the title.pers leading up to a grant and of the grant

itself, and the distinction betwen them, to grant an absolute title to land, and operated which attention had been so often directed to constitute a formal deed of grant. The by this court was pointedly reiterated in the indorsement thus referred to is as follows: statement of the case made by Mr. Chief Justice Fuller in Ainsa v. United States, 161 U. S. 219, 40 L. ed. 677, 16 Sup. Ct. Rep. 548, as follows:

"An expediente is a complete statement of every step taken in the proceedings, and a testimonio is the first copy of the expediente. A grant of [or?] final title paper [s] is attached to the testimonio and delivered to the grantee as evidence of title, and entry is made at the time in a book called the Toma de Razon, which identifies the grantee, date of the grant, and property granted."

It is manifest, from the foregoing review of the decisions under the California act, that it was held that in order to vest an [119] applicant under the regulations of 1828 with title in fee, either absolute and perfect, or conditional and imperfect, to public land, substantial compliance with the preliminary requisites to a grant was essential, it was necessary that a grant should be evidenced by an act of the governor, clearly and unequivocally conveying the land intended to be granted, and a public record, in some form, was required to be made of such grant. As a corollary from the foregoing, it of course follows that the action of the legislative body could not lawfully be invoked for the approval of a grant, unless the expediente evidenced action by the governor, unambiguous in terms as well as regular in

character.

Although it be assumed that there was a settled practice in New Mexico prior to the treaty of cession, to evidence a grant of land by a decree of the governor entered upon the reports made to him, without the execution of an independent and formal grant, such assumption would not avail in this case. For, undoubtedly, it would be essential in a par per of the character referred to that it should indicate the land to which the grant referred and the persons to whom it was made, and, further, that there should be a

Santa Fé, December 31, 1845. *To the prefect of the district, that he as-[120] certain whether the land applied for has an owner, and cause the corresponding justice to deliver the land referred to by the petitioner. Armijo.

Juan Bautista Vigil y Alarid, Secretary.

have referred, the mere indorsement by a
But, under all the authorities to which we
Mexican governor of action on the petition,
tioned in the regulations of 1828 had been
before any of the prerequisite steps men-
taken to determine whether as to the land
and the applicants the power to grant might
be exercised, was treated as a mere reference

by the governor to ascertain the preliminary
facts required to justify an approval of an
application, and not as having force and ef-
fect as an actual grant of title to the land
petitioned for. Under the decisions referred
to, it cannot be doubted that the regular
practice was deemed to be the execution of a
formal deed of grant, following a decree ac-
ceding to the application, after reports made
as to the results of the investigation di-
rected to be had as required by law.
the practice in New Mexico for the governor
Whilst, as we have said, it may have been
not to make an independent, formal grant,
but, after the receipt of reports from sub-
ordinate officials, to indorse a decree of con-
cession or grant upon the papers evidencing
the "proceedings" in the matter, such prac-
tice would not justify the conclusion that
the mere approval indorsed on a petition,
amounting but to a direction to take the nec-
essary steps for the ascertainment of needed
with any manifestation by the governor of
information, should be treated as dispensing
his intention to grant a title to land after
cated to him. It is manifest that the prefect
the requisite information had been communi-
the petition was addressed did not consider
to whom the indorsement by the governor on
it as a grant of title to the tract of land in
question, since he directed the justice of the
peace, if the land was vacant and third par-
ties would not be injured thereby, to "pro-
ceed to grant them of the land an abundance

record thereof. It is patent that the regu-
lations contemplated that the original "pro-
ceedings" or expediente which were to be for-
warded to the departmental assembly, if evi-
dencing the fact that a grant had actually
been made, should remain in the custody of
the public officials, and that such "proceed-
ings" to be complete should exhibit the ac-dition that they inclose the same with a reg;
of what each can cultivate, under the con-
tion taken by the governor after the ascer-
tainment of the prerequisites required by

law.

The only ground for contending that there was a grant by the governor must rest on the inference that the indorsement by the official named, on the petition of Santistevan, manifested the purpose of the governor to

ular fence, in order to prevent damage, and
that they do not obstruct the roads, pas-
tures, and watering *places, and with notice[121]
that they should keep arms sufficient for
their defense."

Now, it is undoubted that the documents
executed by the prefect and the justice of the
peace fairly import that those officials as-
sumed authority to grant something as re-
spected the land in question, either title or
a right of possession for purposes of cultiva-
tion, but it is beyond controversy that the
officials referred to did not, in 1845, possess
power to grant the title to public lands.
Hays v. United States, 175 U. S. 248, ante,
150, 20 Sup. Ct. Rep. 80; Crespin v. United

States, 168 U. S. 215, 42 L. ed. 440, 18 Sup.
Ct. Rep. 53; United States v. Bergere, 168
U. S. 66, 42 L. ed. 383, 18 Sup. Ct. Rep. 4.
If, however, the subordinate officials referred
to presumed to act on behalf of the governor
in making a grant of title, the failure of the
latter to subsequently ratify their action
rendered their acts nugatory. United States
v. Bergere, 168 U. S. 66, 42 L. ed. 383, 18
Sup. Ct. Rep. 4.

Regarded as a grant of title, the documents relied upon import, contrary to the letter and spirit of the regulations, that it was a matter of no consequence to what particular individuals a grant was to be made, and that Santistevan might designate, at his pleasure, the persons to be placed with himself in possession. But, by article 3 of the regulations, the determination whether the conditions required by the colonization law existed, "both as regards the land and the applicant," was imposed upon the executive head of the territory. And as already shown, the grant could not have been created by the mere conferring of juridical possession since the authority to give possession was necessarily derived from and must have conformed to a precedent grant.

As a grant of title by the governor was a prerequisite to the conferring of juridical possession, of necessity the delivery thereof must have conformed to such precedent grant, and the mere act of possession cannot in any view have the force and effect of a grant. The document evidencing possession certainly formed no part of the "proceedings" or expediente which was required to be transmitted to the legislative body for its decision, approving or disapproving action taken by the governor antecedent to the giv-tify the petitioners, and did not, in terms, ing of possession.

It is manifest that the indorsement of Governor Armijo, considered by itself or in conjunction with the petition, failed to iden

purport to grant title to land. As Santiste-
van petitioned that the grant be made by the
governor "in the name of the high powers of
our Mexican Republic," it is not permissible
to infer that the governor intended to dele-
gate to subordinate officials the power to de-
cide whether an absolute or any title to the
land petitioned for should *be granted, or to[123]
determine what portion thereof should be
granted. The reasonable interpretation of
the act of the governor would appear to be
that he intended either to license the occupa-
tion of land within the prescribed limits for
cultivation, or that he desired an examina-
tion and report to be made, with a delivery
of temporary possession, pending further ac-
tion on his part.

Passing, however, from the mere question of form and considering the substance of things, can the papers relied upon be treated as constituting a grant of title to the land in question? Certainly, the adjudications of this court upon the regulations of 1828, from the beginning, have established the doctrine that a grant of Mexican land could not be confirmed unless there had been at least a reasonable compliance with the require ments of those regulations. Now, the Mexican law under which, if at all, a grant of this land could have been made, required the governor to be informed both as to the capacity of the individual under the law to receive the grant, and as to whether the land petitioned for was in a condition for grant. When it is borne in mind that the applicaAnd whilst exacting that the governor should tion of Santistevan purports to have been thus have the means of information in order made at a time when hostilities were impendto enable him to form a judgment, the law ing between Mexico and the United States, pointed out the officials to whom he should and the territory of New Mexico was unrefer the petition for examination and re-doubtedly in a disturbed condition, its citiport on these subjects. zens in all probability preoccupied with [122]* *Now, in the case before us, that the gover-preparations for an impending clash of arms, nor at the inception of the proceedings was the inference from the documents we have not sufficiently informed, either as to the land been considering is not unwarranted that or the applicants, to take final action upon but a mere temporary possession or license the petition, is patent on the face of the doc- was intended by the prefect and justice of uments. Thus, the petition does not desig- the peace to be conferred upon the applinate who were the "five" associates of San- cants. Such an hypothesis would account tistevan, and the governor in his indorse for the long delay following the direction of ment requires the prefect to ascertain the the prefect to the justice of the peace, bearcondition of the land. Further, though the ing date January 3, 1846, and the delivery of prefect was not informed, either by the peti-possession on the 20th of March following. tion or the indorsement of the governor, as And it is to be remarked that such a possesto who were the petitioners to whom delivery sion as could have been had of the land in of the land was to be made, he remained ig- question under then existing circumstances norant on the subject, and directed the jus- during the short time intervening the asserttice of the peace to ascertain the conditioned delivery of possession and the conquest of of the land, and to grant to the "petitioners" (asserted in the petition of Santistevan to be six in number) an abundance of what each could cultivate of the land, under certain prescribed conditions. We find, how ever, the justice of the peace assuming to grant to "five petitioners" jointly, either a title to, or the right of possession of, all the land within described boundaries.

the country by the American forces, would
have been insufficient to have constituted
even an equity in favor of the alleged gran-
tees, which this court could recognize were
it clothed with the broad powers conferred
by the California act. Peralta v. United
States, 3 Wall. 434, 441, 18 L. ed. 221, 224.
It may be added that the record fails to sat-
isfactorily establish any occupancy or culti-

COMPANY, Plff. in Err.,

vation prior to the conquest, and but trifling | *JAMESTOWN & NORTHERN RAILROADŢIE
cultivation thereafter, and the latter by a
portion only of the alleged grantees.

บ.

THEODORE J. JONES.

(See S. C. Reporter's ed. 125–132.)

filing map.

To summarize. In the documents presented as establishing title in the alleged original grantees, there is an entire disregard of the requirements of the regulations of 1828, and the proceedings do not warrant the find- Land grant to railroads-road built without ing that the acts of the prefect and of the justice of the peace were ever reported to or received the approval of the governor, or that the latter official ever made a grant of title. The major portion of the documents claimed [124]*to constitute title, if regular, properly constituted part and parcel of an expediente belonging to the archives. They, however, bear no indorsement to indicate that they had ever been among public archives prior to Argued February 1, 1900. Decided March their production in 1872 from private custody for filing in the office of the surveyor general of New Mexico. So, also, no evi

A definite location of the right of way of a railroad, which will entitle it to the benefits of the act of Congress of March 3, 1875, granting lands to railroads, is made by the actual construction of the road, although a prodle map of the road has not been filed.

[No. 142.]

26, 1900.

dence was introduced tending to show that IN ERROR to the Supreme Court of the

any sort of official record had ever been made
of a grant of title to the land in controversy,
while the tenor of the act of possession for-
bids the inference that any formal grant was
ever executed by the governor. The case is
cherefore without the principle of various de-
cisions of this court where, with respect to a
formal grant, introduced in evidence, comply.
ng with the requirements of the regulations,
but whose authenticity was disputed, the
ase was remanded to the lower court to per-
nit the introduction of evidence, if such

ould be produced, to establish that archive
vidence of the grant once existed. One of
he prerequisites for the introduction of sec-
ondary evidence of title is proof that a
'grant was obtained and made in the manner
he law required." United States v. Castro,
24 How. 350, 16 L. ed. 660.

Unless it be assumed that the Mexican government was indifferent as to the disposition of its lands, and that anybody and everybody possessed power to convey them, as a matter of course, to whoever chose to ask for them, proceedings such as those we have reviewed cannot be treated as having had the effect of devesting the Republic of Mexico of title to a portion of its public lands.

Sustaining, as we do, the first two contentions urged by the government, it becomes unnecessary to consider or pass upon the others which were pressed upon our atten

tion.

As a consequence of the foregoing reasons, it results that the claim should have been rejected by the court of private land claims, and that because it erroneously confirmed the alleged grant, the decree made below should be reversed, and the cause remanded with instructions to reject the claim and dismiss the petition.

And it is so ordered.

Mr. Justice Brewer and Mr. Justice Brown concur in the result.

State of Dakota to review a judgment affirming a dismissal of an action to establish a railroad right of way under a land grant Reversed.

See same case below, 7 N. D. 619, 76 N. W. 227.

Statement by Mr. Justice McKenna:
This suit was brought by plaintiff in error
to have itself adjudged the owner of a right
of way over the northwest quarter of section
of Stutsman, state of North Dakota.
8, in township 141, of range 64, in the county

March 3, 1875, entitled, "An Act Granting
Its title rests upon the act of Congress of
to Railroads the Right of Way through the
Public Lands of the United States."

The plaintiff was organized September 17, 1881, under the laws of the territory of Dakota. After its organization it surveyed a line of route for its railroad from a point near Jamestown in a northwesterly direction through the county of Stutsman and othe land in controversy. The survey was 1.. hed the 30th of October, 1881. A map representing the survey was made by a resolution of the board of directors, and was adopted as the definite route of the railroad.

In 1882 the road was constructed upon the line surveyed, and since that time trains have been continuously run over it by the plaintiff.

On the 26th of January, 1883, the plaintiff filed with the Secretary of the Interior &

copy of its articles of incorporation, and due On the 13th of March, 1883, plaintiff's map proofs of its organization under the same. of definite location was filed and approved by the Secretary of the Interior. There was some uncertainty in the evidence whether such map was ever filed in the office of the register of the local land office, but it prob ably was.

*On the 12th of February, 1881, the land[126 then being public land of the United States, duly surveyed, one Sherman Jones filed declaratory statement upon it, alleging set

NOTE.-48 to land grant to railroads Mr. Justice Shiras and Mr. Justice Mo-note to Kansas P. R. Co. v. Atchison, T. & S. F. Kenna dissent.

R. Co. 28 L. ed. U. S. 794.