dissenting:
I coincide with the reasoning of the opinion which has been read, on a majority of the points discussed, and' concur fully in the judgment of the court on all the points involved, so far as it reverses the ruling of the court below and remands the cause for a new trial. I regret, however, to have to feel it my duty to deliver a separate opinion on the most important question involved in the case. I allude to the grant or deed offered by the plaintiffs in the court below as evidence to maintain their action, and by the court excluded from the jury, as complained of in the third bill of exceptions. In deciding that the court below erred in refusing to allow that grant to go to tbe jury, it seems proper that some reasons should be assigned showing that the grant, when it shall be brought to the consideration of the jury in the new trial, is to have some force and effect, and to indicate the principles which ought to govern the construction thereof when it shall come to be considered as evidence in the court below. I have to regret that in this view of the duty of this tribunal, I stand unsupported by the other members of the court.
This grant appears to have been executed by Don Bar-tolomé Baca, as supreme political chief of the province of New Mexico, under the supreme national government of the republic of Mexico, with the consent of the national deputation of the province. It comes before us, as it was before the court below, as a duly authenticated copy of the original, bearing the appearance of genuineness, and seeming to have been executed in due accordance with the forms, ceremonies, and solemnities of the law. This document of concession grants to Don Juan E. Pino a certain extensive tract of land lying within the territory of New Mexico, the metes and bounds whereof are therein described, embracing, as it is alleged, the ranch. occupied by Alexander Hatch, for the possession of which this action of ejectment was instituted in the court below. The plaintiffs in the original cause are the lawful heirs of the grantee, Don Juan E. Pino, and in the action of ejectment offered this grant as evidence of their right to recover possession. The said grant having been rejected by the court below, the plaintiffs have brought the question of its validity to this appellate tribunal. The question is one of a very delicate and important character, and in view of the importance of the principles involved, the extent of property depending on the result of this cause, and the effect which the final adjudication of this question must have upon the real estate of a large portion of the people of this territory, it is natural that I should experience some regret in differing from a majority of the court in the opinion which I entertain in reference to this most interesting and important branch of the case.
In tlie investigation of the character of the grant in question, and in the application thereof to this case, we must inquire, has it emanated from a proper source? Is it duly authenticated ? What is its legitimate force and effect, and is it such a grant as should command the protection of the courts of the country? It is an undisputed and admitted fact, that Don Bartolomé Baca, the grantor, was at the time of the making of the said grant the duly authorized political chief of this, the then province of the republic of Mexico, to whose wisdom and care, under the advice of the provincial deputation, was confided the government and the interests of this province. It is before us upon the record, that the grantee, Don Juan E. Pino, on the sixth day of December, 1823, petitioned the said political chief for a grant of the tract of land described in the document of concession, the petitioner setting forth in the petition, the uses and purposes to which he desired to appropriate the tract of land for which he petitioned. Those uses were the cultivation of the soil, the pasturing of flocks, the promotion and encouragement of industrial pursuits, and in general such purposes as looked to the settlement of the uninhabited portions of the province, the enhancement of the value of the soil, the development of the resources of the country, and the promotion of the public good. It further appears that the said petition was referred by the said political chief, Don Bartoleme Baca, to the provincial deputation of the province, for their advice and consent, it seeming clearly to have been the duty of said provincial deputation to counsel and advise with the said political chief in relation to the propriety, and wisdom of making such grants. It further appears that the said provincial deputation, having duly considered the matters set forth in the petition thus referred to them, gave their agreement and assent to the concession of the lands petitioned for, and that then, and not until then, the said political chief, in the name of the supreme national government, made to the petitioner, Don Juan E. Pino, a grant of the tract of land for which he petitioned, and for the purposes for which the said grant was sought.
It has already been remarked that the grantor, Don Bartolomé Baca, was the undisputed and admitted political chief of the province of New. Mexico at the time of making such grant. He held that office under the repub-lie-of Mexico and it was in that capacity that he made to Don Juan B. Pino the grant in question. It is to be presumed that all of his official acts were legitimate and in conformity to the will of the law of' the sovereign power under which he exercised his authority. Such must be the rational and legal presumption, until it be shown that he transcended his powers, or acted in violation óf laws bearing. upon the subject. The presumption that he acted within the legitimate scope of his authority, in making the grant, derives strength from .the circumstances attending the concession of the land from the incipiency to the consummation of the grant. In the first place, let us look at the petition of the party seeking the grant. It is apparent from the form of the petition, the consideration therein set forth, and the motives by which it was obviously incited, that the petitioner acted under full conviction that he was applying to the true and lawful authority for. the desired grant. The reference of the petition by the political chief to the provincial deputation, indicates that the said functionary was disposed, like a faithful public officer, to proceed with due deliberation, care, and wisdom, in the discharge of a delicate and important public duty. The deliberations of the provincial deputation, and their final assent to the concession of the land in conformity to the prayer of' the petitioner, the acceptance of the task devolved upon them by the reference of the petition to their investigation, deliberation, and counsel, and their response in advising the political chief to make the solicited grant, indicate that they were acting in conformity to law, and that the political chief, with whom they thus counseled and advised, acted in pursuance of legal authority, in referring the case to their consideration and in ultimately making the concession. The presumption in favor of the legality of the act of making the grant derives additional strength from the considerations which moved the grantor thereto. In doing the act, he seems to have been influenced by motives that looked to the public weal, such as the population of the unsettled portions of the province, the cultivation of the soil, the enhancement of the value of the adjacent lands belonging to the public domain, the development of the resources of the country, and other- benefits to the general interest of the province, which Avould legitimately flow ft-om a settlement of the uninhabited portions of the territory and a spread of industrial pursuits. It is apparent that the considerations which moved the grantor in making the grant were founded in a desire to stimulate the dormant energies and develop the latent resources of the country. In this he seems to have acted the part of a faithful public officer, looking not only to the welfare of the province over which he presided, but also to the interest and aggrandizement of the supreme national government, under whose authority he held his office and in whose-name he executed the grant.
These considerations go strongly to support the presumption that Don Bartolomé Baca, as political chief of the province, made this grant by virtue of authority in him duly vested by the supreme national government of Mexico. This presumption is favored by the declaration in the document of concession that he made the grant by virtue of the authority upon him conferred, and in the name'of the supreme national government. This grant appears from the record to have been made in the year 1823, twenty-five years before the republic of Mexico parted with the right of soil, and her political authority over this territory, wherein the land in question lies, and where the grant thereof was made. The act of granting this land was, of course, a public proceeding. The record thereof passed to the archives of the government, and it is to be presumed and admitted that such official functions, when exercised by the high public authorities of the provincial government, were not unknown to the supreme national authority. It is not to be supposed that a nation would establish within her own domains a provincial or subordinate government, appoint officers thereto, and devolve upon them the responsible duty of managing the affairs and superintending the interests of that subordinate government, without taking cognizance of the important acts of its functionaries.
It appears, then, that the supreme national government of Mexico acquiesced in the act of its subordinate authorities in this province, in making the grant of land here in question, for the lapse of about twenty-five years. We are to construe the silence of the supreme authority in regard to the public acts of its subordinate authorities into an affirmation or approval of those acts. It has not been shown that the supreme national government did any act, passed any law, or issued any edict disavowing grants made in this manner and by these authorities. It does not appear that anything has been done by the national government of Mexico tending to indicate that she disapproved of such proceedings; but, on the contrary, those functionaries were permitted for years Jo go on uninterruptedly in the exercise of such powers. By virtue thereof, countless tracts of land are now possessed by the inhabitants of this territory, who will tremble in their homes, hitherto deemed permanent and secure, when they shall have learned, from the intimation of this court, by how frail a tenure, in the' opinion of this tribunal, they hold their possessions. The purposes for which such grants as the one in question were made, being such as look to the welfare of the province, the development of its resources, and consequently to the interest and greatness of the supreme government, give encouragement and strength to the idea of presumed acquiescence on the part of the superior power.
After the lapse of nearly twenty-five years from the period of this grant, this territory passed from the ownership of Mexico into that of the United States, and in the transition from the jurisdiction and authority of the old government to those of the new, the plaintiffs brought with them this grant, which had been respected and maintained inviolate for nearly a quarter of a century, and they now ask us if we will not recognize as lawful and valid an act from a high official source, which for so long a period had the unreserved acquiescence of their former sovereign. The supreme court of the United States, in the case of The United States v. Arredondo et al., 6 Pet. 691, recognize 'the principle as to all public grants of lands or acts of public officers in issuing warrants, orders of survey, permission to cultivate .or improve, as evidence of inceptive and nascent title's. That the public acts of public officers, purporting to be exercised in an official capacity and by public authority, shall not be presumed to be usurped, - but a legitimate authority, previously given, or subsequently ratified, which is equivalent. In that case it is said, “if it were not a legal presumption that public and responsible officers, claiming and exercising the right of disposing of the public domain, did it by order and consent of the government in whose name the acts were done, the confusion and uncertainty of titles and possessions would be infinite.” The same case, page 723, says: “The grants of colonial governors, before the revolution, have always been and yet are taken as plenary evidence of the grant itself, as well as authority to dispose of the public lands. Its actual exercise, without any evidence of disavowal, reyocation, or denial by the king, and his consequent acquiescence and presumed ratification, are sufficient proof, in the absence of any to the contrary (subsequent to the grant), of the royal assent to the exercise of his prerogative by his legal governors. This or no other court can require proof that there exists in any government a power to dispose of its property. In the absence of any elsewhere, we are bound to presume and consider that it exists in the officers or tribunal who exercise it by making grants, and that it is fully evidenced by occupation, enjoyment, and transfers of property, had and made under'them, without disturbance by any superior power, respected by all coordinate and inferior officers and tribunals throughout the state, colony, or province where it lies.”
The government of the United States, in all the special legislation which it has had in reference to grants by the former sovereign of portions of the domain over which she has subsequently acquired authority and jurisdiction, has always recognized the principle here insisted upon, and in the same case, United States v. Arredondo and others, the supreme court of the United States says, in allusion to such legislation by congress, that “in their whole legislation on the subject (which has beeu examined), there has not been found a solitary law, which directs that the authority on which a grant has been made uuder the Spanish government should be filed by a claimant and recorded by a public officer, or submitted to any tribunal appointed to adjudicate its validity and the title it imparted. Congress has been content that the rights of the United States should be surrendered and confirmed by patent to the 'claimant under a grant purporting to have emanated under all the official forms and sanctions of the legal government. This is deemed evidence of their -having been issued by proper, lawful, aud legitimate authority, when uuimpeaehed by proof to the contrary.”
In the same case the court say: “ The judicial history of the landed controversies under the land laws of Virginia and North Carolina, as construed and acted on within those states, and in those where the land ceded by the states to the United States lie, and Pennsylvania, whose land tenures are very similar in substance, in all which the origin of titles is in very general, vague, inceptive equity, will show the universal rule that the acts of public officers, in disposing of public land by color or claim of public authority, are evidence thereof until the contrary appears by the showing of those who oppose the title set up under it, and deny the power by which it professed to be granted. Without the recognition of this principle there would be no safety in title papers and no security for the enjoyment of property under-them. It is true that a grant made without authority is void under all governments: 9 Cranch, 99; 5 Wheat. 303; but, in’all, the question is on whom the law throws the burden of proof of its existence or non-existence. A grant is void unless the grantor has the power to make it, but it is not void because the grantee does not prove or produce it. The law supplies this proof by legal presumption, arising from the full legal and complete execution of the official grant under all the solemnities known or proved to exist. or to be required by the law of the country where it is made aud the land is situated.”
The grant in this case comes before us with all the appearances of having been executed in conformity to the solemnities and sanctions of law. In that respect it stands unimpeached. In view of the foregoing reasoning and authorities cited, it is clear to my mind that this grant must be respected as having emanated from a lawful source, such as would be recognized by congress in legislation upon the subject, and of which the courts can not be regardless. If the authority by which the grant was made is to be viewed as legitimate aud binding, let us inquire what is the character and extent of the rights thereby vested in the grantee. It is obvious that the designs of the grantor were to give to the grantee, not a mere possessory right, but a permanent right to the land granted. This intention is evinced and undoubtedly indicated by the instructions or requirements of the document of concession, wherein the grantor says: “ I have thought proper to grant, in the name of the supreme national government, to Don Juan Ei Pino, and by this document of concession, the site which he solicits, on the river Gallinas, which shall be called Hacienda de San Juan Bautista del Ojito de las Gallinas, with the known boundaries on the north of the landmarks of the site of Don Antonio Ortiz and the mesa of the Aguage de la Tegua; on the south the river Pecos; on the east the mesa of Pajarito; on the -west the points of the mesa Ohapamius; in which fixed points he shall place formal and well-constructed landmarks, so that in all time the dividing lines of the lands which have been granted to him may be recognized, in order that in conformity with the laws now in force, or that may be in force, he may enjoy them for himself and his legitimate heirs.”
It is not, however, necessary, in view of the bearing which this grant should have in the court below, in the action of ejectment, to determine whether the effect of the grant was to vest in the grantee a title in full property to the land therein embraced, or only the right to settle and possess. That the grant was sufficient to vest in the grantee the right to settle and possess, there can be no rational doubt, and there can be no more reason for uncertainty and doubt as to the quantity of land or the extent of the tract over which the right of the grantee was carried. This right of possession was to the whole of the lands within the boundaries laid down and described in the grant. The possession of a part of the tract was in legal contemplation a possession of the whole, to the effect that all other persons entering thereon without a higher and better right, derived from public authority, from the grantee himself or those holding under the grant, would be there as mere trespassers.
It appears from the evidence that the grantee did take possession of the tract of land by the erection of buildings and actual occupancy of the same. His right of possession thereby became perfected, and it was by virtue of that right' that the action «of ejectment was brought in the court below. Is the right thus acquired such as the courts of our country should protect? It is a humane and just principle of. the law of nations that even in conquest private and individual rights of property are not disturbed in the passage of the conquered country from the old to the new sovereign. The conqueror seizes on the possession of the state and the public property, while private individuals are permitted to retain theirs. They suffer but indirectly by the war, and the conquest only subjects them to a new master: Vat., Law of Nations, b. 3, c. 13, sec. 200. The supreme court of the United States, in the case of United States v. Percheman, 7 Pet. 86, say it may not be unworthy of remark, that “ it is very unusual now in cases of conquest for the conqueror to do more than to displace the sovereign, and assume dominion Over the country. The modern usage of nations, which has become law, would be. violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world, would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relation to each other and their rights of property remain undisturbed. If tbis ’ be the modern rule, even in eases of conquest, who can doubt its application to the case of amicable cession of territory?”
Brit independent of this’ general principle, it is expressly stipulated between the United States of America and the Mexican republic in the treaty of Guadalupe Hidalgo, article 10, “that all grants of land made by the Mexican government, or by the competent authorities in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States, shall be respected as valid to the same extent that the same grants would be valid if the said territories had remained within the limits of Mexico.” By the same treaty it is also stipulated that “Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free, to continue where they now reside, or to move at any time to the Mexican republic, retaining the property Avliich they possess in said territories, or disposing' thereof and removing the proceeds wherever they please:” Id., sec. 8. The term property here is to be taken in the most general and liberal sense, as applying to lands as well as to movable possessions. By the word property, as applied to lands, is comprehended every species of title, inchoate or perfect, embracing all those rights which lie in contract, those which are executory as well as those which are executed. In this respect the relation of the inhabitants to the government is not changed: Smith v. The United States, 10 Pet. 326.
The scrupulous care and fidelity which our government intended to maintain in regard to the rights of property of the inhabitants of this territory is further evinced by the duty assigned to the surveyor-general of the territory in the law creating that office, wherein it is made the duty of that officer to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico, and to make a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe’ Hidalgo, of 1848, denoting the various grades of title, with his decision as to the validity or invalidity of each of the, same under the laws, usages, and customs of the country before its cession to the "United States: Statutes at Large, 1853-1854, Sheet Acts, 309.
It thus directly appears by the treaty stipulations between the United States and the republic of Mexico, and by the subsequent legislation of congress, that all rights of property of every description appertaining to the citizens or inhabitants of the territory previous to its cession to the United States, were to be sacredly respected and inviolably maintained. Thus do whatever rights were acquired by the plaintiff in this suit by virtue of the grant of the political chief of this province, stand securely panoplied against all invasion, and, although congress has thought proper to make, itself the judge of the validity of such grants, it is the duty of the courts of the territory to give to the parties claiming under them such protection as the law and equity of their respective claims demand, until their rights shall have been finally determined by the government of the United States. Without deciding whether the grant in question in this case gave to the grantee a title in full property to the tract of land therein described, it is unquestionable that it invested him with a right of possession to the whole tract, which could not be defeated by any but the lawful authority in the annulment or disavowal of the grant. In the absence of -any evidence of the annulment, revocation, or disavowal of the act by the supreme national government of Mexico, it must stand as evidence of the right of possession of those claiming under or by virtue of the grant. The action of ejectment is purely a possessory remedy. Its whole object is to put the party claiming possession into the enjoyment thereof. A judgment in ejectment is a recovery of the possession, without prejudice to the right, however it may appear after-wards, even between the parties: Adams on Ejectment, 32; City of Cincinnati v. the Lessee of White, 6 Pet. 431. Such was the character of the action in the court below. The plaintiffs sought to recover possession, and offered this grant as evidence of their right of recovery. The grant distinctly defines by prominent and enduring natural objects, the metes and bounds of the tract of land which it purports to convey. These objects still exist, and are as distinctly marked now as they were at the time at which they were mentioned in the deed of concession, so that there can be no doubt as to the precise boundaries within which the grant lies.
It was proved on the trial, as appears from the evidence on record, that the ranch occupied by the defendant, Alexander Hatch, was within those metes and bounds. If the grant is worth anything more than a blank sheet of paper as an instrument, tending to clothe the plaintiffs .with a possessory right; if it is sufficient to give them a right of possession to one foot of the land, it is ample for the purpose of giving possession to the whole, and sufficient to maintain the action .of ejectment against all other persons entering thereon who can not show a better right. The der fendant in the court below did not prove, or attempt to prove, a better right, and in the absence of such proof this grant (had it been permitted to go to the jury), aided by the other testimony adduced on behalf of the plaintiffs, should have enabled them to recover.