By Court,
Benedict, J.:This was an action of ejectment brought by the plaintiffs, in the county of San Miguel, under the law which provides that the action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises. The plaintiffs, at the October term, 1853, applied for and obtained a change of venue to the county of Santa Fe. After issue tendered, the record shows many proceedings by the respective parties in the district court, to which the cause was changed up to the June term, 1854, which are not deemed necessary to relate. At this term the cause was submitted to a jury for trial. The object of the plaintiffs was to eject Hatch from a great extent of territory lying in the county of San Miguel, which had been granted, as they claimed, to Juan Esteban Pino, the father of Justo and Manuel, and which by them, since their ancestor’s decease, had been transferred to their wives. To show that the grant bad been made, the plaintiff offered in evidence a document purporting to have been made to said* Juan Esteban by one Bartolomé Baca, as political chief pro tem. of the province of New Mexico, on the twenty-third of December, 1823. With this was also offered the petition of said Juan Esteban to said Baca, praying for the grant and evidence of its presentation by him to the provincial deputation of the territory and their action thereon. To the introduction of this grant by the political chief and the other documents, the defendants objected, and the court sustained the objection, and refused to permit them to go to the jury. The plaintiffs then strove to prove a prescriptive right to the premises by showing the peaceable possession and enjoyment for twenty years, and offered to ask a witness, Domingo Fernandez, a man of about ninety years of age, what was the custom under the Spanish and Mexican governments of getting possession of the public domain, and the court refused to allow said question to be asked. After the plaintiffs had closed their testimony, tire defendants demurred to the evidence, and the court ruled the plaintiff to join in the demurrer on the morning thereafter, and discharged the jury.
A bill of exceptions shows, that after tbe court bad allowed tbe demurrer to evidence and bad ordered tbe joinder in. demurrer, but before tbe joinder was made, tbe counsel for plaintiff could not agree with counsel for defendant as to the facts proved, and tbe court decided what facts bad been proved, so far as tbe dispute was concerned and as to tbe facts in regard to which counsel on both sides disagreed. After tbe joinder was made tbe court found against tbe plaintiff, and rendered a judgment in favor of tbe defendant, for costs. Tbe plaintiffs then filed their exceptions and appealed to this court, after having moved in arrest of judgment and been overruled. Among tbe errors which have been assigned are, that tbe district court erred in excluding tbe documentary evidence offered by plaintiffs, in compelling tbe plaintiff below to join in tbe demurrer to evidence, and in excluding tbe evidence as to custom. This cause is one of very great interest, not only from tbe immense tract of territory embraced in tbe plaintiffs’ claim, but from tbe principles involved, and tbe adverse interests of possession and occupancy which have grown up and now exist, as appears by tbe evidence, upon tbe same tract. Prom tbe direction this case is to take as resulting from tbe opinion to which the court has arrived, and tbe peculiar manner in which tbe record presents the cause before us, we do not deem it necessary to enter into an elaborate discussion to fix and prescribe tbe principles by which such merits as tbe plaintiffs may have in tbe lands claimed, or any part of them, should finally be disposed of. We will, in reviewing tbe exceptions taken by tbe plaintiffs to tbe rulings of tbe court below, consider, first, tbe refusal of tbe court to permit tbe document offered, to be read as evidence to the jury. It is contended by tbe counsel for tbe defendants, that they were properly refused, because it was not shown that tbe sovereign Mexican authority of that nation, after the declaration of its independence of tbe crown of Spain, bad authorized and empowered the political chief or governor of this province to grant away tbe public domain. Tbe plaintiffs’ counsel contends that they were not required to prove affirmatively that Bartolomé Baca bad authority as governor to make tlie grant, but sucb authority is to be presumed from bis acts until the contrary is shown by those disputing the grant. No question seems to have been raised that the plaintiffs did not make all the preliminary proof, as to the forms and execution of the deed and documents, to entitle them to offer these in evidence. The question as to the legality of evidence offered by a plaintiff, and his right that the same shall be allowed to go to the jury, and that of the sufficiency of the evidence to make out his case, are clearly distinct. The legality must be determined by the court, the sufficiency by the,jury.
It has been conceded in the argument of this cause (and the discussions have been able and luminous), that the territory in controversy was public domain, and belonged to the sovereignty of Mexico when Baca executed the documents. The court takes notice that the United States acknowledged the independence of Mexico, which had been achieved from Spain in 1821. Up to that time, the royal order of the king, by virtue of his prerogative, ruled absolutely in the disposition of the public domain, and in the separation thereof, and in the granting of parcels to individuals. Upon the assertion of these prerogatives in Mexico, the power passed to the sovereignty of the latter country. The supreme court of the United States said, in the case of Pollard's Lessee v. Hagan et al., 3 How. 225, asserting the law of nations: “It can not be admitted that the king of Spain could, by treaty or otherwise, impart to the United States aDy of his royal prerogatives; and much less can it be admitted that they have capacity to receive, or power to exercise them. Every nation acquiring territory by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it.”
It follows, then, that all power which governors of provinces, intendants, or other persons had to dispose of public domain, by virtue of authority imparted by the king of Spain, ceased upon the independence of Mexico. The sovereignty over the public domain passed from him to the sovereignty of Mexico. The title passed there, and lodged tliere, and could not be divested without an authority and under a law. Neither a political chief nor a provincial governor could divest the sovereignty of the soil unless expressly authorized by the new power to do so, or his acts should be subsequently sanctioned by the political authority: See Jones v. Borden, 5 Tex. 410. Bartolome Baca, if he had the power to grant the title to the premises in question, derived that power from Mexico, for New Mexico at that time was governed as a part of that nation. And, as before remarked, the argument of the cause has proceeded upon the conceded ground that the sovereignty of the public domain in the province was in Mexico. No one has urged that this domain had become the property of the province, and could have been divested without the authority of Mexico.
But suppose, for the sake of the argument, the ground is assumed as invulnerable that Baca had not been empowered to grant the title to the premises, ought the court to have permitted the documents to have gone to the jury? We think it should. The rule of Spain had been driven from the country. Mexico herself was passing through tumults and revolutions. The Mexican confederation had not then been formed. The next year, after Baca’s grant, the federal constitution was established. The government of this province, as proven by wdtness "Vigil, had been turned over to the republic of Mexico in 1821. Baca- describes himself as having been assisted by a provincial deputation. They doubtless had the power, and did exercise the functions to regulate (and to what extent is not now essential to inquire), the internal affairs of the province and preserve the public peace. If -they had not the legal authority to grant the title and fee-simple in the public domain, we must concede to them as having had the power to regulate the possession and prescribe rules for the occupancy of the domain. The very necessity growing out of the condition of the inhabitants, their wants and welfare, presumes that power to have, existed. The use of the soil for settlement, improvement, and cultivation, and for the erection of establishments for mechanical purposes, could have been properly granted: See 2. How. (U. S.) 603. The documents, to give them no other right, would have aided the plaintiffs in showing the time when and the manner in which their ancestor gained possession of any portion of the premises claimed, and the point of time from which the prescription they strive to prove, as the rancho was actually occupied, began to run as against all individuals not having a higher claim to the possession. This court is fully aware of the importance of giving full effect to the laws in this territory, which bind the courts to protect the rights of possession, improvement, and occupancy, bona fide and peacefully acquired. During the investigation of this case, it was in the contemplation of a majority of the court, at least to make a rigid analysis of the documents, and define from the'results to which our minds have arrived the entire legal effect we think they should have in the determination of this cause by a jury. Upon more mature deliberation, however, we think it proper to refrain from embodying in this opinion our conclusions upon that poiut further than is necessary in disposing of the exceptions taken by the plaintiff. To go further we are not required, and, should we, it might be improperly invading the trial below, should an adjudication of the legal effects and sufficiency of the documents be had.
We turn now to the consideration of the exception to the ruling of the court in refusing the evidence as to custom; the plaintiffs now trying to prove a prescriptive right to a tract of land which Juan Esteban Pino has, as the proof showed, for a long time occupied. If there was a custom in the Spanish and Mexican governments of' getting possession of the public domain, we think the plaintiffs should have been permitted to prove such custom by parol testimony. We are not aware of the rule which would have excluded that proof. At the time referred to they were foreign governments as to us. To quote-no further authority, the United States supreme court say, in the case of The United States v. Wiggins, 14 Pet. 334, “ the practice of the government in disposing of the public domain may be proven by those familiar with the custom,” and this referred to the disposition made by Spain. If such practice could be proven by parol, surely the custom of obtaining possession could be so proven. We come now to tbe exception to the ruling of the court in the demurrer to the evidence. This point has been very lucidly argued by the respective counsel. We are inclined to believe that the record does not show the whole of the facts as they occurred below; but, be that as it may, we are confined to it as it stands before us. On the practice of demurrers to evidence there are reported many adjudicated cases, and seldom without language of marked condemnation; yet when such course is taken by the counsel, the court has but its plain duty to perform, which is to decide all points touching such demurrers as shall be presented in such manner as it shall understand itself to be required by law. A peculiar point is presented in this bill of exceptions, and has been much dwelt upon in argument. It is important that this be disposed of. After the plaintiffs had been ruled to join in demurrer, it seems that a dispute arose between the counsel of the respective parties as to the facts proven, and, they not being able to agree, the court decided what facts had been proven. So far as the dispute was concerned, and as to the facts in regard to which counsel on both sides disagreed, the record does not inform us what the disputed facts were — neither as to number, kind, or importance; but it does show a dispute, and that it was not set- ' tied by the parties, aud that the court did' decide what facts were proven, and upon such decision compelled the plaintr iffs to join in demurrer.
It may be proper here to inquire into the nature of a demurrer to evidence. In Young v. Black, 7 Cranch, 565, the supreme court say: “ A demurrer to evidence is an unusual proceeding, and is allowed or denied by the court in the exercise of a sound discretion, under all the circumstances of the case. The party demurring is bound to admit as true, not only all the facts proved by the evidence introduced by the other party, but also all the facts which that evidence legally may conduce to prove. It follows that it ought never to be admitted, where the party demurring refuses to admit the facts which the other side attempts to prove.’' The same court says, in The Bank of the United States v. Smith, 11 Wheat. 171: “ By this demurrer the defendant has taken the questions of fact from the j ury, where they properly belonged, and has substituted the court in the place of the jury, and' everything which the jury could reasonably infer from the evidence demurred to is to be considered as admitted.” The language of adjudged cases on this subject is very strong, to show that the court will be extremely liberal in their inferences, where the party demurring will take the question from the proper tribunal. It is a course of practice, generally speaking, that is not calculated to promote the ends of justice. In Fowle v. Common Council of Alexandria, 11 Wheat. 320, the court say, “that it is no part of the object of the proceedings (demurrer to evidence) to bring before the court an investigation of the facts in dispute, or to review the force of testimony or the presumptions arising from the evidence; that is the proper province of the jury. The true and proper object of such a demurrer is to refer to the court the laiv arising from the facts. It supposes, therefore, the facts to be admitted, and as ascertained, and that nothing remains for the court but to apply the law to the facts.” This doctrine is clearly established by authorities, and is expounded in a very able manner by Lord Chief Justice Byre, in delivering the opinion of all the judges in the case of Gibson v. Hunter, 2 H. Bl. 187, before the house of lords. It was there held that no party could insist upon the other party’s joining in demurrer, without distinctly admitting upon the record every fact and every conclusion which the evidence given- for his adversary conduced to prove. If, therefore, parol evidence is given in the case, it is loose and indeterminate, and may be applied with more or less effect to the jury as evidence of circumstances which is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of other facts. The party demurring must admit the facts of which the evidence is so loose, indeterminate, and circumstantial, before the court can compel the other side to join therein.
In this case we are compelled to regard the defendant as not admitting upon the record all the facts contended for by the plaintiffs. We are not prepared to say that the plaintiffs’ counsel acted captiously in the dispute. It seems of so grave a nature that the court interposed and decided the facts. This decision of the court seems to be at variance with the opinions above quoted. We are unable to find an adjudged case, in which the court has in such instance exerted such power. We think it was not its province to decide what facts had been proven, and that it erred in doing so, and then compelling the joinder. It had ample power to dispose of the contumaciousuess of the plaintiffs', if any existed. The exceptions do not show which party originated the disagreement, nor in whose favor the court decided the facts. It is impossible to know how differently the proof would appear in the record, had not such decision been made, nor what effect it may have bad upon the final determination of the cause. It was the province of the court, not to find the facts, but to apply the law. In conclusion, we think proper to state, that we express no opinion as to the points much disputed in argument as to the evidence tending to show .Hatch to be upon the actual rancho of Pino. His counsel so placed his case that all inferences which a jury could reasonably draw must be taken’against him, and all that was loose, circumstantial, and indeterminate he was bound to admit against himself. Taking the whole of this case as it appears to us from the record, we think it should be sent dorvn to the district court to be tried de novo. Let the judgment be reversed.