delivered the opinion -of the court.
The case, on account of the large pecuniary value of the land in controversy, has elicited great interest. We have been aided by oral and written arguments of, rare ability, and the question of pueblo and mission rights, and the powers of the Mexican governors of California over them, has been much pressed upon our attention.
The construction, however, which we give to the espediente, conceded to be genuine, and on which the plaintiff's must recover, if at'all, supersedes the necessity of discussing the remaining questions, which in any other aspect of the case, it would be important to do.
■ In order to asee;tain the proper effect of the espediente as an entire thing, it is necessary to analyze all its parts. And with this analysis, the meaning of it, in our opinion, cannot be mistaken. The petition presented by Francisco
According to the custom of the country, this petition was referred to the secretary of the department to ascertain what ivas the true state of facts, and report to the governor. The informe, as it is called, or official report of Jimeno, who was then secretary, as it was approved'by the governor, and formed the basis of his action, is of material assistance in arriving at the true nature of the right which was subsequently conceded. It is in these words, addressed to the governor: “The mission of San Francisco has no longer any propertjq and consequently the potrero which is petitioned for' is lying unoccupied, as the soliciting parties show by means of a report proceeding from the respective judge; and inasmuch as there are to be assigned to said establishment, its. corporation or common lands, I am of opinion, that, in the meanwhile, the parties might occupy the plot of land, by virtue of a provisional license of your excellency, because no prejudice is caused thereby to the community (or) to any private individual.”
The significant fact appearing on the face o.f this document, is, that it ignores the very matter for which the De Haros petitioned. They solicited a grant of the land pertaining to the potrero, but Jimeno, among the most intelligent of Mexican officials, knew, if the mission was secularized, there would remain an incipient pueblo, which might embrace' for its common lands, the piece of ground asked for; and, therefore, reported that the grant of it could not be safely conceded, as it might prejudice the rights of the community. But, as the inclosure was vacant, no harm could result to the public, or any private individual, by its' temporary occupancy, and as the petitioners wanted very
There are no words used indicating an intention to give a title, or to vary from the position taken in the informe. The document to be issued, is one corresponding to the right conferred, which was to occupy 'provisionally the potrero. And the despatch which did issue for the protection of the parties, conformed' to the terms of the decree, as will sufficiently appear by an examination of its essential provisions. “I have determined,” says the governor, “to permit the Messrs. De ITaro to occupy the beforementioned pasture
If language has any meaning, Micheltorena, intended by this instrument to give nothing more than the power to occupy, and even this power was made expressly subject to the paramount claim of the establishment of San Francisco. To permit pasture-ground to be occupied, excludes all idea that a grant of the- land was contemplated. There are, absolutely,-no words indicating an intention to'make a future grant on the happening of any event whatever. But the despatch goes further, and forbids the De Haros to sell or alien it, or do any act prejudicial to the property of the establishment, on penalty “ of losing their right to this provisional concession.” The prohibition against sale and alienation, by necessary intendment, refers to the right of occupancy, for no other right was to be conceded, and this right was to cease, if-the fundamental conditions attached to “the provisional concession,” delivered to the De Haros for their protection, were violated. If they were to lose their right to the land, as is contended, why were the words appropriate to a concession of the land, which an inspection of the original document shows were written in it, stricken out, and the phrase “they shall lose their right to this provisional concession,” substituted in their stead? It is clear enough, that Jimeno, who was in the habit of writing grants for land, inadvertently pursued the usual form for such grants, but recovering himself, wrote the words appropriate to confer a license to occupy, which he 'had recommended and the governor approved.
It surely cannot need more evidence to demonstrate that the Mexican officials intended the espediente to be what it is, a mere license to occupy, not permanently, but “ in the meantime,” until the ejidos were measured. It is impossible to divest the mind of the conviction, that Micheltorena and Jimeno, either believed they had not the power to grant the potrero, or, if they had, the circumstances of the mission forbade its exercise,- and conceded a permissive occupation, not.of light, but by way of grace and favor.
But, the authority of the “ Toma de Razón” is invoked to bolster up the claim of title, because in the entry of this case, the word “ titulo ” is used.
It is proper to remark that the nature and effect of an espediente, when it is clearly ascertainable, from contemporaneous and official construction, cannot be defeated by an entry in the Toma de Razón. The office of the Toma de Razón is to support, not destroy the espediente. In this case, however, the entry did not mistake the character of the transaction, for the Spanish word “titulo” does not indicate the measure of the right, interest, or estate of the party. “It means,” according to Spanish authority,* “ the cause in virtue of which anything is possessed, and the instrument by which the right is accredited,” and in Spain and Mexico there are a class of titles (títulos), not translative of property. Therefore, Jimeno did not err in characterizing the instrument given to the De Haros as a “ titulo,”’ for the word “ titulo ” is a nomen genemlissimum., to be applied as well to title-papers, which convey title, in the usual acceptation of the term, as to those which confer a mere right of occupancy. And the claimants can derive no help from the use of the word “ concession,” for a distinguished Spanish scholar (Escriche), gives this definition of it: " “ Whatsoever is granted as favor or reward, as the privileges granted by the prince.” As a matter of favor, Micheltorena conceded to the De Haros, the privilege of temporarily occupying the
Without pursuing the subject further, we ai’e satisfied, from a careful examination of this Mexican record, that the only thing conferred, or intended to be conferred, on the Be Haros, was a-provisional „or temporary license of occupation, which the governor was willing should be in Writing, instead of by parol, to enable the licensees' to enjoy their possession with greater security. And this leads us to a consideration of the law on the subject of licenses. If the license in question has been terminated, there is an end to this case, and it is wholly unnecessary to consider the other questions which have been discussed at the bar.
There is a clear distinction between the effect of a license to enter lands, uncoupled with an interest, and a grant. A grant passes some estate of greater or less degree, must be in writing, and is irrevocable, unless it contains words of revocation; whereas a license is a personal privilege, can be conferred by parol or in writing, conveys no estate or interest, and is revocable at the pleasure of the party making if. There are also other incidents attaching to a license. It is an authority to do a lawful act, which, without it, would be unlawful, and while it remains unrevoked is a justification for the acts which it authorizes to be done. It ceases with the death of either party, and cannot be transferred or alienated Dy the licensee, because it is a personal matter, and is limited to the original parties to it. A sale of the lands by the owner instantly works its revocation, and in no sense is it property descendible to heirs. These are familiar and well-established principles of law, hardly requiring a citation of authorities for their vindication; but if they are needed, they will be found collected in the notes to 2d Hare & "Wallace’s American Leading Cases, commencing on page 376.* We are not aware of any difference between the civil and common law on this subject.
Testing this case by these rules of law, is not the license
It is argued, the license was to last until the ejidos were measured, and therefore is not determinable until that event occurs. This argument has no force, unless it was the intention of Micheltorena to give some’interest in the land to the De Haros when the ejidos were assigned, if they did not embrace the potrero; but we have seen that he had no such intention. He promised nothing; he did not say what he would do or no.t do when the common lands were measured, but told the De Haros, meanwhile, until they are measured, you can occupy the potrero for a pasture-ground for your cattle. This was not a contract on consideration that they and their heirs should have the right of occupancy until the happening of this event. It might never happen; and what was intended as a mere license would be thus converted into a grant. Micheltorena could have lawfully ousted the De Piaros from the possession at any time before their death, because the privilege conferred was at all times within his control, and liable to be countermanded.
The De Haros, so to speak, were tenants-at-vull, and held at the sufferance of the Mexican authorities. They could not have been deceived a3 to the nature of the right conferred, for they repaired to Monterey to get the land in full property, and returned to San Francisco with only a provisional license to pasture their cattle on it. The term provisional excludes the idea of permanency; it means something temporary and for the occasion.
If this is so, this claim, if presented to the Mexican government, would • have been rejected, and is, therefore, not entitled to confirmation, under the act of Congress, against the United States.
In concluding this opinion, we are sorry to have to state that this record is not a clean one. It is tainted with fraud and forgery. When this claim was originally pressed for confirmation, it was on title-papers conveying a grant of the land, which are now withdrawn as being forgeries. If the espediente on which the claim is now rested carried the title to the property, why substitute forged grants ? A crime is never committed without an adequate motive, and it is clear that, in the opinion of the party who did it, the genuine espediente fell short of a concession of the potrero in full property.
We are gratified, on a consideration of the evidence, to learn.that the young De Haros, during the'short period they occupied the potrero, did not mistake the nature of the power conferred on them. They did not add to the value of the land by impi’ovements, and left nothing on it but what could be easily removed and made available to their heirs.
Decree affirmed.,
*.
Escriche.
*.
Or in the last edition (4th), p. 736, notes to Prince v. Case and Rerick v. Kern. — Rep.