169 U.S.

165
18 S.Ct. 314
42 L.Ed. 702

CESSNA et al.
v.
UNITED STATES et al.
No. 78.
February 21, 1898.
1

On January 9, 1893, the appellants, as plaintiffs, filed their petition in the court
of private land claims, praying that their title to a tract of land in the territory of
New Mexico, and near to the city of El Paso, Tex., be confirmed. The plaintiffs
named as defendants, besides the United States, the unknown owners of the
Dona Ana Bend colony, Mesilla colony, and Bracito grants. The United States,
as well as certain individuals, representing themselves to be the owners of these
grants, appeared and answered. Thereafter a trial was had, and on June 26,
1895, the court entered a decree, finding that the plaintiffs' claim of a land
grant had not been sustained by satisfactory proof, and dismissing the petition.
From such decree the plaintiffs have brought this appeal.

The facts disclosed by the record, and about which there is little dispute, are
substantially as follows: In April, 1823, one Doctor John Heath, or Juan Gid, as
his name is written in the Spanish, petitioned the ayuntamiento or general
council of El Paso for a grant of a tract of land, which petition was acted upon
by the ayuntamiento, and a tract five leagues square was granted to him. This
petition was in these words:

'Dr. Don Juan Gid, citizen of the United States of North America, in the best
legal form allowed by law, appears before your honorable body, and states:
That, not having received up to date any answer to the communication of
December last of last year, which I presented to the former ayuntamiento, the
predecessor of your honorable body, which (communication), approved in all
its parts, was forwarded to his imperial majesty by the same, for which reason
and because of the increase (ampleacion) of the power which is given to your
honorable body by the law of colonization which was issued by the national
instituent assembly (junta) of the empire on the 3d of January of the present
year. For these reasons I again have recourse through this, repeating my request

to your honorable body, adding that I offer to bring for the settlement of the
land of El Bracito, which I ask may be given to me, thirty families of Christian
Catholics, and among them blacksmiths, gunsmiths, silversmiths, carpenters,
tailors, shoemakers, saddlers, architects, mathematicians, chemists,
mineralogists, surgeons, doctors of medicine, and to establish a hospital, with
its corresponding drug store and proper stock therein, with the necessary
instruments for all operations; also to build a warehouse supplied with all kinds
of merchandise for wholesale; the necessary machines for the manufacture of
cotton and cloth goods; another for the manufacture of gunpowder, offering,
until payment of the expense of transportation, to furnish the amount of this
article all this jurisdiction may need at the very low price of one dollar per
pound, it being first class for the use of arms; with the understanding that in al
the said trades there shall be admitted for instruction the youths whose parents
may see fit to dedicate them thereto, the children of this country (suelo) having
the preference thereto.
4

'In view of what has been said, and because, for establishing the said
machinery, utilizing the farms, grazing stock, and for the other field interests, it
is indispensable that it have the extension which is necessary therefor, it
behooves me to demonstrate to your honorable body that the land which may
be assigned to me, limiting me to the smallest amount, be at least enough for
(sea lo menos para) an hacienda, and that said designation be made for me on
both sides, that is to say, that it be on both sides of El Bracito, because, the said
land being broken, it is necessary to leave out various portions of it. I also
propose to your honorable body that, until time permits whatever else may be
desirable, this settlement be attached to the parish of this jurisdiction; likewise
that the pasture and woodlands be common, with the same privilege as other
people of this locality; recommending that it be without prejudice to those
farms (sementeras), and that the petitioner be the person to whom is intrusted
the distribution of said lands, he being considered the legitimate justice of said
families.

'Candor of mind being what I most appreciate, and to join myself with my
brethern, the faithful inhabitants of this empire, living always in the simple
peace, in order to dispel all rumors of hatred, I ask your honors that, you being
pleased, and in order that the said law of colonization be executed in all its
parts, notice of this, my petition, be given to the individuals of this jurisdiction,
in order that all these gentlemen who like may better or equal it with a view to
the right of preference, in which act your honorable body, to whom is intrusted
the power of father of this country (patria), will weigh, at their true value, the
incalculable benefits that result from my petition, whereupon, far from seeking
means to deprive it thereof, it would be encouraged in every way to procure

their increase.
6

'Wherefore I ask and petition your honorable body to be pleased to accede to

what I petition, being pleased to pardon the fault that this my petition is not
upon paper of the proper seal, for there is none in this place, I being ready to
pay the fees that belong to the national treasury. I protest that I do not act in
bad faith, and the necessary,' etc.

'Paso, April 7th, 1823. Juan Gid.'

Certain proceedings were had upon this petition, which it is unnecessary to

mention in detail.

On April 22d this order was made by the ayuntamiento:

10

'This ayuntamiento having on this day received that which by its order was to
be executed by the commission appointed from its midst to do the surveying
that was to be done in the land of El Bracito, this being five leagues in each
direction, the whole of it composing an 'hacienda,' according to article 5 of the
colonization plan, which land was granted by this ayuntamiento to Don Juan
Gid for the purpose of settlement, as stated afterwards, and he being satisfied
with what was done in all its parts by the said commission, it was entered as a
minute, in due witness thereof the president and other members of which that is
composed signing it before me, the secretary, to which I certify. Jos e Ygnacio
Rascon, Jos e Morales, Jos e Maria Belarde, Jos e Francisco Carbajal, Juan
Maria Barela, Antonio Prudencio, Jos e Maria Garc ia, Saturnino Aguiar, Jos e
Manuel Garc ia, Lorenzo Provencio, Jos e Albares.

11

'Juan Maria Ponce de Leon, Secretary.'

And on the 25th the following:

12

'The present expendiente in which there has been granted to Don Juan Gid,
Anglo-American of the United States, the lands of El Bracito for settlement,
being considered by this ayuntamiento as closed, proceed to what is to be done
under the tariff in force in this ayuntamiento and by its secretary that Juan Gid
may know what fees he is to pay for what has been done therein, placing the
original in the archive as a perpetual testimony, but nevertheless to this shall be
sent, together with a certified copy, by the first mail or safe conduct, to the
governor of this province for his superior information; another of the same kind

being given to the party in interest for his protection. And by the present order
the president and members of this corporation so determined and signed it
before me, the secretary, to which I certify. Jos e Ygnacio Rascon, Jos e
Morales, Jos e Maria Belarde, Jos e Francisco Carbajal, Saturnino Aguiar, Jos e
Manuel Garc ia, Lorenzo Provencio.
13

'Juan Maria Ponce De Leon, Secretary.'

14

'It is a copy of the original expediente which on petition of Don Juan Gid was
made in order to grant to him for settlement the land of El Bracito, in
accordance with the colonization plan, together with what is afterwards stated;
which original remains accordingly in the archive, to which I certify.

15

'Juan Maria Ponce De Leon,

16

'Secretary. [Rubric.]' A copy of these proceedings was sent to the governor of

the province, and the following action was taken by the provincial deputation:

17

'In the session of the 17th of the present month the acting governor of this
province, Captain Jos e Antonio Vizcarra, presented to this deputation the
reports which your honorable body makes to him in an undated official
communication which said chief received; and he also presented another
official letter, dated the 26th of last April, accompanied by a copy of the
proceedings had by your honorable body in giving to the foreigner Mr. John
Heath, at the Bracito, possession of land belonging to the people of that
jurisdiction.

18

'The deputation in the same session resolved to express to your honorable body
the surprise it felt at the violent and mistaken procedure with which you
conducted yourselves in giving land to foreigners, not only with prejudice to the
inhabitants of that jurisdiction, but also in violation of the same law of which
your honorable body availed itself in order to carry into effect the possession
referred to, thus opening the door to the continual complaints of its people; this
deputation refraining from making other observations to your honorable body,
on account of the colonization law, which was the moving cause in the
concession of the Bracito land to the said Heath having been repealed; but
proceeding to direct your honorable body that, in order not to make itself
responsible for damages which the foreigner might claim if he should introduce
into this province the families that he offers to bring, it should notify the said
Heath, through the plenipotentiary of the United States resident in New
Mexico, or in some other manner which it may deem more prompt and

effective, that the possession which has been given to him at the Bracito,
belonging to that jurisdiction of El Paso, was through a mistaken opinion and
wrong understanding in relation to the colonization law already repealed.
19

'And I communicate it to you by direction of the said deputation, with the

understanding that I shall communicate to you the decision that may be arrived
at when the petition of Mr. Albo and the other persons of that town shall have
been discussed, your honorable body notifying me of the receipt of and
compliance with these instructions.

20

'God preserve your honorable body many years.

21

'Santa F e, June 19, 1823, the third year of independence and the second of
liberty.

22

'Francisco Javier Chavez. [Scroll.]

23

'Juan Bautista Vigil, [Scroll.]

24

'Deputy Secretary.'

25

It does not appear that notice of this action of the provincial deputation was at
the time communicated to Heath, for soon after the final order of the
ayuntamiento he returned to this country, and to the state of Missouri, of which
state he had theretofore been a citizen, made a disposition of his property, and
collected a body of colonists, with whom, in the year 1824, he proceeded to El
Paso, with a view of taking possession of this tract of land. Instead of bei g
permitted to occupy the tract, he was banished from the country, forced to
abandon the property that he had brought with him, and sent back to the United
States a bankrupt. He returned to Missouri, where he lived until he died, in the
year 1851. Petitioners claim under him.

26

The national colonization law of January 4, 1823, under which these

proceedings were had, is, so far as it can have any application to the present
case, translated by Rockwell (Rock. Sp. Law, p. 617), as follows:

27

'Article 1. The government of the Mexican nation will protect the liberty,
property and civil rights of all foreigners, who profess the Roman Catholic
apostolic religion, the established religion of the empire.

28

'Art. 2. To facilitate their establishment, the executive will distribute lands to

them, under the conditions and terms herein expressed.

29

'Art. 3. The empresarios, by whom is understood those who introduce at least

two hundred families, shall previously contract with the executive, and inform
it what branch of industry they propose to follow, the property or resources
they intend to introduce for that purpose; and any other particulars they may
deem necessary, in order that with this necessary information, the executive
may designate the province to which they must direct themselves; the lands
which they can occupy with the right of property, and the other circumstances
which may be considered necessary.

30

'Art. 4. Families who emigrate, not included in a contract, shall immediately

present themselves to the ayuntamiento of the place where they wish to settle,
in order that this body, in conformity with the instructions of the executive,
may designate the lands corresponding to them, agreeably to the industry which
they may establish.

31

'Art. 5. The measurement of land shall be the following: Establishing the vara
at three geometrical feet, a straight line of five thousand varas shall be a league;
a square, each of whose sides shall be one league, shall be called a sitio; and
this shall be the unity of counting one, two or more sitios; five sitios shall
compose one hacienda.'

32

'Art. 7. One labor shall be composed of one million square varas, that is to say,
one thousand varas on each side, which measurement shall be the unity for
counting one, two or more labors. These labors can be divided into halves and
quarters, but not less.

33

'Art. 8. To the colonists, whose occuption is farming, there cannot be given less
than one labor, and to those whose occupation is stock raising, there cannot be
given less than one sitio.

34

'Art. 9. The government of itself or by means of the authorities authorized for

that purpose, can augment said portions of land as may be deemed proper,
agreeably to the conditions and circumstances of the colonists.

35

'Art. 10. Establishments made under the former government which are now
pending, shall be regulated by this law in all matters that may occur, but those
that are finished shall remain in that state.

36

'Art. 11. As one of the principal objects of laws in free governments ought to be
to approximate, so far as is possible, to an equal distribution of property, the
government, taking into consideration the provisions of this law, will adopt
measures for dividing out the lands, which may have accumulated in large
portions, in the hands of individuals or corporations, and which are not
cultivated, indemnifying the proprietors for the just price of such lands to be
fixed by appraisers.'

37

'Art. 19. To each empresario, who introduces and establishes families in any of
the provinces designated for colonization, there shall be granted at the rate of
three haciendas and two labors, for each two hundred families so introduced by
him, but he will lose the right of property over said lands should he not have
populated and cultivated them in twelve years from the date of the concession.
The premium cannot exceed nine haciendas and six labors, whatever may be
the number of families he introduces.

38

'Art. 20. At the end of twenty years the proprietors of the lands, acquired in
virtue of the foregoing article, must alienate two-thirds part of said lands, either
by sale, donation, or in any other manner he pleases. The law authorizes him to
hold in full property and dominion one-third part.

39

'Art. 21. The two foregoing articles are to be understood as governing the
contracts made within six months, as after that time, counting from the day of
the promulgation of this law, the executive can diminish the premium as it may
deem proper, giving an account thereof to congress, with such information as
may be deemed necessary.

40

'Art. 22. The date of the concessions for lands constitutes an inviolable law for
the right of property and legal ownership; should any one through error, or by
subsequent concession, occupy land belonging to another, he shall have no right
to it, further than a preference in case of sale, at the current price.

41

'Art. 23. If, after two years from the date of concession, the colonist should not
have cultivated his land, the right of property shall be considered as renounced,
in which case the respective ayuntamiento can grant it to another.

42

'Art. 24. During the first six years from the date of the concession the colonists
shall not pay tithes, duties on their produce, nor any contribution under
whatever name it may be called.

43

'Art. 25. The next six years from the same date they shall pay half tithes, and

the half of the contributions, whether direct or indirect, that are paid by the
other citizens of the empire. After this time they shall in all things relating to
taxes and contributions, be placed on the same footing with the other citizens.'
44

'Art. 29. Every person shall be free to leave the empire, and can alienate the
lands over which he may have acquired the right of property, agreeably to the
tenor of this law, and he can likewise take away from the country all his
property, by paying the duties established by law.'

45

There is a dispute as to the proper translation of section 4, the original of which

is:

46

'Art. 4. Las familias queporsi mismas vengan a establecerse, se presentar an

immediatamente al respectivo ayuntamiento del lugar en que quieran radicarse,
para que conforme a las ordenes con que se hallen del gobierno se les designe
por aquel cuerpo el terreno que les corresponda segun la industria que van a
plantear;'

47

And a translation thereof, as furnished by Mr. Tipton, a special agent and

Spanish expert of the department of justice in the office of the United States
attorney for the court of private land claims, is:

48

'Art. 4. The families who come of themselves to settle shall present themselves
immediately to the respective ayuntamiento of the place at which they desire to
establish themselves in order that, in conformity with the orders which they
have from the executive, there be designated to them by that body the lands to
which they are entitled according to the industry which they are going to
undertake.'

49

At the time of the enactment of this colonization law Iturbide was the emperor
of Mexico. Soon thereafter a revolution followed. He abdicated on March 20,
1823, and his banishment was ordered by a decree of the constituent congress
of Mexico, April 23d, in these words:

50

'The sovereign constituent congress of Mexico, in the session of yesterday,

decreed the following:

51

'(1) That the coronation of Agustin de Iturbide being an act of violence and of
force, and void in law, there is no occasion to discuss the abdication he makes
of the crown.

52

'(2) Consequently, it also declares as void the hereditary succession and the
titles that have emanated from the coronation; and that all the acts of the late
government, from the 19th of May to the 29th of March last, are illegal, but
subject to revision by the present congress for their confirmation or revocation.

53

'(3) The supreme executive authority will cause the prompt departure of
Agustin de Iturbide from the territory of the nation.'

54

Article 10 of the original draft of the treaty of Gu dalupe Hidalgo, as agreed

upon between the commissioners representing this government and Mexico,
was as follows:

55

'Art. 10. 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. But the grantees of
land in Texas, put in possession thereof, who, by reason of the circumstances of
the country since the beginning of the troubles between Texas and the Mexican
government, may have been prevented from fulfilling all the conditions of their
grants, shall be under the obligation to fulfill the said conditions within the
periods limited within the same, respectively; such periods to be now counted
from the date of the exchange of ratifications of this treaty; in default of which
the said grants shall not be obligatory upon the state of Texas in virtue of the
stipulations contained in this article. The foregoing stipulation in regard to
grantees of land in Texas is extended to all grantees of land in the territories
aforesaid elsewhere than in Texas, put in possession under such grants; and in
default of the fulfillment of the conditions of any such grant within the new
period, which, as above stipulated, begins with the day of the exchange of
ratifications of this treaty, the same shall be null and void.' Message of the
president of the United States, transmitting papers relative to the treaty of
Guadalupe Hidalgo, Feb. 8, 1849, Ex. Doc. 50, H. R. 30th Cong., 2d Sess. p.
17.

56

That article, however, was stricken out by the senate of the United States, and
in the message of President Polk the reasons for its rejection are stated in the
following language (Id. 32):

57

'The objection to the tenth article of the original treaty was not that it protected
legitimate titles, which our laws would have equally protected without it, but
that it most unjustly attempted to resuscitate grants which had become mere

nullities, by allowing the grantees the same period after the exchange of the
ratifications of the treaty, to which they had been originally entitled after the
date of their grants, for the purpose of performing the conditions on which they
had been made. In submitting the treaty to the senate I had recommended the
rejection of this article. That portion of it in regard to lands in Texas did not
receive a single vote in the senate. This information was communicated by the
letter of the secretary of state to the minister of foreign affairs of Mexico, and
was in possession of the Mexican government during the whole period the
treaty was before the Mexican congress, and the article itself was reprobated in
that letter in the strongest terms. Besides, our commissioners to Mexico had
been instructed 'that neither the president nor the senate of the United States
can ever consent to ratify any treaty containing the tenth article of the treaty of
Guadalupe Hidalgo in favor of grantees of land in Texas or elsewhere.' And
again: 'Should the Mexican government persist in retaining this article, then all
prospect of immediate peace is ended, and of this you may give them an
absolute assurance."
58

And in the treaty as ratified were left the following provisions, which guaranty
only the rights of Mexicans to property belonging to them in the territory (9
Stat. 929, art. 8):

59

'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 remove
at any time to the Mexican republic, retaining the property which they possess
in the said territories, or disposing thereof, and removing the proceeds wherever
they please, without their being subjected, on this account, to any contribution,
tax, or charge whatever. * * * In the said territories, property of every kind,
now belonging to Mexicans not established there, shall be inviolably respected.
The present owners, the heirs of these, and all Mexicans who may hereafter
acquire said property by contract, shall enjoy with respect to it guaranties
equally ample as if the same belonged to citizens of the United States.'

60

The act creating the court of private land claims provides, in section 13 (26
Stat. 860):

61

'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 of the acquisition
of the territory by the United States, the claimant would have had a lawful right
to make perfect had the territory not been acquired by the United States, and

that the United States are bound, upon the principles of public law or by the
provisions of the treaty of cession, to respect and permit to become complete
and perfect if the same was not at said date already complete and perfect.'
62

The eighth subdivision of the same section also contains this limitation:

63

'No concession, grant, or other authority to acquire land made upon any
condition or requirement, either antecedent or subsequent, shall be admitted or
confirmed unless it shall appear that every such condition or requirement was
performed within the time and in the manner stated in any such concession,
grant, or other authority to acquire land.'

64

Robert Rae and J. B. Cessna, for appellants.

65

Sol. Gen. Richards, Matt. G. Reynolds, and Frank Springer, for appellees.

66

Mr. Justice BREWER, after stating the facts in the foregoing language,
delivered the opinion of the court.

67

The court of private land claims was of the opinion that the ayuntamiento or
town council had no power to make a grant, such as this, of a tract entirely
outside the four square leagues supposed to belong to the town; and, secondly,
that, even if it had such power, the conditions of the alleged grant were never
performed by Heath, and therefore he acquired no title to the property.

68

The colonization law of January 4, 1823, was in force only a short time, having
been suspended by the decree of April 11, 1823, and superseded by the law of
August 18, 1824. Few proceedings were had under it, and therefore its true
meaning cannot be considered as determined by any settled usage of the
Mexican authorities. Indeed, counsel for appellants, with all their industry, have
been able to find but one other grant made or attempted to be made under its
authority. It is, to say the least, difficult to discern in this law any warrant for an
original grant by the ayuntamiento. Article 2 provides that 'the executive will
distribute lands.' This is in accord with the settled policy of the old Spanish law,
which reserved to the king the power of granting lands. Doubtless this power
was often exercised under the directions of the king by subordinate officials,
but full control was retained by him. So here the executive retains the control of
the distribution of lands. It is true the article provides that such distribution
shall be 'under the conditions and terms herein expressed,' but that simply
means the conditions and terms under which the executive will act. Article 3
refers to grants to empresarios, and specifically declares that they 'shall

previously contract with the executive,' who will 'designate the province to
which they must direct themselves; the lands which they can occupy.' It is said
that Heath does not come within the terms of this article, because he did not
propose to introduce at least 200 families, and this contention is doubtless
correct. Article 4, upon which the plaintiffs specially rely, makes provision for
families who emigrate 'not included in a contract,' evidently referring thereby to
the empresario contracts specified in the preceding sec ion. Such families are
directed to 'present themselves to the ayuntamiento of the place where they
wish to settle, in order that this body, in conformity with the instructions of the
executive, may designate the lands corresponding to them, agreeably to the
industry which they may establish.' Accepting the contention of plaintiffs that
Heath comes within the scope of this article, we note these limitations: The
emigrating families are to present themselves to the ayuntamiento of the 'place
where they wish to settle,' not the ayuntamiento of the town nearest to the land
upon which they wish to settle. The natural meaning of this is that when
families desire to settle within the limits of a town they shall present themselves
to the ayuntamiento of that town for a designation of the lands they may
occupy. It would be strange to find that a town council was empowered to grant
lands outside the limits of the town and anywhere within the territory or
department in which it was situated, while it is not strange to find that council
authorized to locate emigrants upon those vacant lands, not exceeding four
leagues square, which, according to Spanish and Mexican custom, were
ordinarily appurtenant and subject to the jurisdiction of the town. We do not
mean to intimate that El Paso in fact possessed a territory of four square leagues
over which it had jurisdiction, although that seems to have been the opinion of
the court of private land claims, for it said: 'El Paso, like other Spanish towns,
is presumed to have had a grant of four square leagues of land, and the
ayuntamiento had the power to make allotments of land within the four leagues
so granted.'
69

This matter was considered in U. S. v. City of Santa F e, 165 U. S. 675, 699, 17

Sup. Ct. 472, and the conclusion was reached, after full examination, that it was
not true, under the Spanish law, that every town was entitled to a grant of four
leagues square, the court saying: 'The inference to be deduced from all these
documents supports the theory that under the Spanish laws, as found in the
recopilacion, all towns are not entitled by operation of law to four square
leagues, but that at a late date the Spanish officials had adopted the theory that
four square leagues was the normal quantity which might be designated as the
limits of the new pueblos to be thereafter created.'

70

Still it was undoubtedly true that by special grant or contract many towns did
have such an area of contiguous and dependent territory, and it would seem that

this article gave the ayuntamiento authority to designate such portion of those
lands as it deemed suitable to the industry which the emigrating families
proposed to undertake.
71

We notice another limitation in this article, and that is that the designation by
the ayuntamiento is to be made 'in conformity with the instructions of the
executive.' This contemplates, as preliminary to the action of the ayuntamiento,
some instructions from the executive, either general or special. Within the letter
of this provision the executive might, in a given case, authorize the
ayuntamiento of a particular town to designate lands outside of the town lands
proper for emigrating families; but surely in this article there is no general grant
of power to every town council to give away lands anywhere within the
territory or department without any previous instructions or directions from the
executive. Neither is the power contended for to be found in article 23, which
simply authorizes the ayuntamiento, in case any colonist shall fail to cultivate
the land which has been given him, to regrant the same tract to another. It might
well he that the ayuntamiento should have power after the lapse of a grant to
regrant the same tract to another party. But it does not follows therefrom that
the power to regrant lapsed lands implies a power to make an original grant.

72

Neither is the plaintiffs' case helped by the assertion that the fact of a grant
presumes the power to make it. Counsel quote from U. S. v. Peralta, 19 How.
34 -347: 'The presumption arising from the grant itself makes it prima facie
evidence of the power of the officer making it, and throws the burden of proof
on the party denying it.'

73

Whatever may be the scope of this proposition, we find in these proceedings a

distinct declaration that the town council regarded its action as only
preliminary, and requiring for finality the approval of the government. In the
first resolution passed by the ayuntamiento on the petition of Dr. Heath it is
recited:

74

'(1) That, saving the superior determination of the government to which this
shall be given, his proposals and petition are admitted, and when he presents
himself the land he asks for shall be assigned to him in these terms: The head
(toma) of the Bracito shall be the central point of the square of said 'hacienda';
that is to say, two and a half leagues in a straight line up the river, and two and
a half leagues down the river, the same being observed in the sides that form
the square.'

75

And in the letter transmitting the proceedings to the governor it is said:

76

'The imitative circumstances of the new settlers, and the fact that this
corporation has no municipal ordinances regulating the distribution of land that
may be useful and beneficial in promoting settlement, agriculture, arts, etc.,
place this corporation under the necessity of making known to your superiority
the resolution, that your excellency may be pleased to dictate whatever may be
your pleasure in the matter, whether it be by yourself or after consulting the
most excellent provincial deputation.'
And again:

77

'In order to avoid jealousies among private individuals and interests of some
breeders of stock who generally are prejudicial to these in the development of
agriculture and arts, it is observed that this jurisdiction is just beginning, and at
the same time gets poorer and poorer if it is not given or provided with
industries and arts, and in order to have them in its territory a means therefor is
that adopted by virtue of article 4, inasmuch as to reject it, difficulties would
hereafter arise both because of the scarcity in the national exchequer and the
poverty of these residents, for whom this ayuntamiento, to which it very closely
belongs to look out for their happiness, has, without delay, put in operation the
franchise of the law; this corporation stating, nevertheless, that if it has erred in
anything, the concession has been made subject to the superior determination.

78

***

79

'This ayuntamiento has found it convenient and worthy of public confidence to

bring all of the foregoing before your excellency and the most excellent
provincial deputation, that you may, in view thereof, order what may be just
and convenient to remove uncertainties and to proceed with certainty in every
matter, which is what is desired.'

80

So that the ayuntamiento, assuming to act, declared specifically that it did so

'subject to the superior determination,' and submitted its action to the governor
of the province.

81

Further, on the receipt of this communication by the acting governor, it was

presented to the provincial deputation, which expressly disapproved the
proposed grant, and directed that notice of its disapproval should be promptly
communicated to Dr. Heath. The language of the resolution passed by the
provincial deputation is clear. It declares that the action taken by the
ayuntamiento was not only with prejudice to the inhabitants of that jurisdiction,
but also in violation of law. It is true that it does not point out wherein the

violation of law consists, and refrains from further observations on account of

the repeal of the colonization law, but it does direct the ayuntamiento to give
notice to Heath, through the United States minister, or in some other manner,
that the possession given to him was 'through a mistaken opinion and wrong
understanding in relation to the colonization law already repealed,' and that this
notice should be given in order to prevent any claim for damages in case Dr.
Heath should introduce into the province the families that he had offered to
bring. Even if the disapproval had been based solely on the fact that the
colonization law of 1823 had been repealed, that would have been sufficient;
for whatever might be adjudged the power of the ayuntamiento, and although it
might have made a grant without reference to the provincial deputation or the
governor of the province, yet, for reasons which to it were satisfactory, it
expressly declared that the grant was subject to their approval, and, in case that
approval was withheld, of course the grant never became operative.
82

The other case to which counsel refer, in which the ayuntamiento assumed to
act under the law of 1823, instead of supporting the contention that it had
absolute power in the matter, tends in the other direction, and supports the
opposite contention, for in that, as in this, it referred its action for approval to
the governor of the province. That case was of a grant of a tract on the left side
of the Rio Grande, made to Don Jos e Lerma by this same ayuntamiento of El
Paso, the proceedings in respect to which were introduced in evidence. They
show that upon the petition of Lerma, on August 23, 1823, the ayuntamiento
passed a resolution declaring that it deemed it proper to make the grant, but
adding: 'Let all that has been done be brought to the knowledge of the most
excellent deputation of Chihuahua, in order that it may approve this grant, if it
be its superior pleasure.'

83

In pursuance of this resolution the application was presented to the deputation

of Chihuahua, which on October 10, 1823, approved the proposed grant in the
following words:

84

'Agreeably to the resolution of the enlightened council of the town of El Paso,

this most excellent deputation have deemed it proper to approve the grant of all
the lands, woods, and 'sierras' applied for by the resident Don Jos e Lerma, it
being of advantage to the nation to open fields and to form settlements resulting
in public utility, that enlightened council being ordered to appoint a
commission that shall proceed to survey these lands and to give possession to
the party interested, in the name of the supreme powers of the nation, of the
lands, 'sierras,' woods, and pasturages applied for by him on the left side of the
Rio Bravo del Norte.'

85

86

On the receipt of such approval on October 30, 1823, the ayuntamiento

proceeded to pass this resolution:
'Having received the foregoing application and approbation of the most
excellent provincial deputation of Chihuahua to granting and putting the
resident Don Jos e Lerma in possession of the unimproved lands, woods,
pasturages and 'sierras' for which he made application for the purpose of
settling on the line of the Rio Bravo del Norte and on the left side from
opposite the 'Ojo del Toro,' or be it the 'Sierra de todos Santos,' to the 'Sierra
Blanca,' the enlightened council of this town, in compliance with the order of
said most excellent deputation, resolved to appoint a commission of respectable
and honorable persons who shall proceed to survey and delineate those lands
and to put said Don Jos e Lerma in possession thereof.'

87

It also appointed a commission to set off the tract to Lerma. On December 12,
1823, on the report of that commission, it entered the following order:

88

'The land grant applied for by the resident Don Jos e Lerma being approved by
the enlightened council and by the most excellent provincial deputation of the
city of Chihuahua, as is evidenced by the foregoing proceedings carried on by
the president of the appointed commission, who is also the president of this
corporation, let this record be referred to its secretary for taxation of the per
diem and writing therein, according to the tariff in force in this council, in order
that the party interested may be informed of the fees he must pay.'

89

Even this action did not seem to resolve all doubts as to the validity of this
grant, for, in a petition presented by Lerma to the constitutional governor of the
state of Chihuahua in 1828, he set forth the action of the ayuntamiento and the
provincial deputation in 1823, and the delivery to him of the tract, and then,
after alleging that the subsequent ayuntamiento refused to acknowledge the
validity of the grant, added:

90

'In these terms he appeals to your excellency, praying that he be recognized in

his rights of ownership of the lands which belong to him, confirming him in his
said property which was granted to him in order that a settlement be formed in
said lands, and that the council of the town of El Paso be notified accordingly. I
pray for justice and make the necessary protestation at Paso del Norte, May 12,
1828.'

91

Upon such petition the following action was taken:

92

'To the President of the Council of the

93

Town of El Paso del Norte: 'The decree or title of possession ordered to be

given by the provincial deputation and the council of El Paso del Norte in the
year 1823, whereby fifty leagues of land on the left side of the Rio Bravo were
granted to Don Jos e Lerma, has been ratified and confirmed by the second
constitutional congress of this state in consideration of distinguished military
services rendered to the republic by the retired lieutenant, Jos e Lerma.

94

'Therefore, this government considers that the land transferred by the granted
bounty as an exclusive property of the said Lerma, ratifying it in all its parts.
The council of El Paso del Norte will act accordingly. God and liberty.

95

'Chihuahua, June 30, 1828.'

96

This order of the governor, as will be seen, did not rest the validity of the grant
upon the action of the ayuntamiento, or even upon its action as approved by the
provincial deputation, but recited that the title had been ratified and confirmed
by the second constitutional congress of the state. So that the only other case in
which, as said by counsel, action was taken, under this law of 1823, by any
ayuntamiento, clearly shows that it did not understand that it had absolute
power, but that its proceedings required approval by the provincial deputation
or some higher authority. The court of private land claims was right in its
conclusions that no final grant had ever been made to Dr. Heath of the tract in
controversy.

97

But it is unnecessary to rest the case upon this alone; for, even if the
ayuntamiento had full and final jurisdiction in the premises and had made an
absolute and unconditional grant,one beyond the power of any superior
authority to disapprove and annul,still we think the judgment of the court of
private land claims was right, because, as indisputably appears from the
evidence, when Dr. Heath came with his colonists to take possession of the
tract, the Mexican authorities repudiated the alleged grant, denied his rights,
and practically drove him from the country. Not only that, but, as the record
shows, the Mexican government thereafter granted to other parties large
portions of the same tract. The disavowal, repudiation, expulsion, and
subsequent grants were in no respect the irregular acts of a mere mob or other
unauthorized parties. They were the deliberate official proceedings of the dulyconstituted authorities of the Mexican government. This repudiation
commenced in 1824, and continued until the cession of territory to the United
States, under the treaty of Guadalupe Hidalgo. During all those years, so far as

the record shows, no action was taken by Dr. Heath to enforce his claim or
recover damages from the government of Mexico for the alleged wrongs done
him. Neither were any proceedings taken by him, or those claiming under him,
from the treaty of cession until the presentation of this petition before the court
of private land claims. In other words, for seventy years (more than twenty of
which the land was within the dominion of the government of Mexico) this
claim was permitted to lie dormant. Other people have passed into possession
of parts, at least, of the tract, and are occupying it under subsequent grants from
that government Twice during this lapse of time was provision made for an
adjustment of claims of citizens of the United States against the government of
Mexico. On April 11, 1839, a convention was entered into between the two
nations referring to four commissioners all claims of citizens of the United
States against Mexico which had been presented to this government for
consideration. 8 Stat. 526. And again, in the treaty of Guadalupe Hidalgo, there
was a further provision of like nature. 9 Stat. 922. Article 14 of that treaty
released the Mexican government in these words:
98

'The United States do furthermore discharge the Mexican republic from all
claims of citizens of the United States, not heretofore decided against the
Mexican government, which may have arisen previously to the date of the
signature of this treaty; which discharge shall be final and perpetual, whether
the said claims be rejected or be allowed by the board of commissioners
provided for in the following article, and whatever shall be the total amount of
those allowed.'

99

The fifteenth article, which created the commission, directed that it should be
guided and governed by the principles and rules of decisions prescribed by the
first and fifth articles of a prior unratified convention, and in the first of those
articles it was provided: 'The said commissioners, thus appointed, shall, in the
presence of each other, take an oath to examine and decide impartially the
claims submitted to them, and which may lawfully be considered, according to
the proofs which shall be presented, the principles of right and justice, the law
of nations, and the treaties between the two republics.'

100 So that if Dr. Heath had any claim against the Mexican government on account
of being deprived of this alleged grant he could, by a presentation of it under
one or other of these treaties, have received full compensation. The fact that he
made no claim is persuasive evidence that he did not understand that what had
taken place amounted to a complete grant.
101 Further, when the United States received this territory under the treaty of
Guadalupe Hidalgo, they refused to recognize as still valid and enforceable all

grants which had been assumed to be made prior thereto by the Mexican
authorities. Article 10, as proposed by the commissioners, was rejected by this
government and stricken out from the treaty. That article not only contemplated
binding this government to respect all grants which would have been
recognized as valid by the government of Mexico if no cession had been made,
but also proposed to give to grantees who had failed to perform the conditions
of their grants, and whose failure to perform might be deemed to have avoided
the grants, further time to perform the conditions. By the rejection of this
article this government distinctly declared that it did not propose to recognize
any grants which were not at the time of the treaty of cession recognized by the
Mexican government as valid, or any whose conditions, either precedent or
subsequent, had not been fully performed.
102 In this respect the action taken was in harmony with the general rule of
international law. It is the duty of a nation receiving a cession of territory to
respect all rights of property as those rights were recognized by the nation
making the cession, but it is no part of its duty to right the wrongs which the
grantor nation may have theretofore committed upon every individual. There
may be an exception when the dispossession and wrong of the grantor nation
were so recently before the cession that the individual may not have had time to
appeal to the courts or authorities of that nation for redress. In such a case,
perhaps, the duty will rest upon the grantee nation; but such possible exception
has no application to the present case, and in no manner abridges the general
rule that among the burdens assumed by the nation receiving the cession is not
the obligation to right wrongs which have for many years theretofore been
persisted in by the grantor nation. Bec use Mexico had more than 20 years
before the cession forcibly taken from Dr. Heath land that was rightfully his,
and given part or all of it to other persons, it does not follow that when the
United States accepted the cession they came under obligations to do that
which Mexico had failed to do,place Dr. Heath in possession, and restore to
him the land of which he had been thus wrongfully deprived. Such action, if
taken, might well expose this government to just claims for compensation in
behalf of the subsequent grantees of Mexico, who apparently took no personal
part in the wrongs done to Heath. Dr. Heath may have had a claim against
Mexico for those wrongs, but he failed to prosecute his claim in the way
prescribed, and he cannot now make his failure to pursue such prescribed way
a reason for enforcing a title which that nation had refused to recognize. So
long as Mexico repudiated his claim to this tract his only recourse was by direct
appeal or through the intervention of this government to seek compensation for
the property of which he had been deprived. When this government accepted
the cession of the territory it did not thereby assume an obligation to satisfy any
pecuniary demands which he, as an individual, may have had against the

Mexican government. In other words, it took that territory bound to respect all
rights of property which the Mexican government respected, but under no
obligations to right the wrongs which that government had theretofore
committed.
103

But even if there were an obligation on the part of this government, either under
the general rules of international law or the terms of the treaty of cession, to
recognize plaintiffs' claim to this particular tract, yet the time, manner, and
conditions of enforcing it would depend upon the will of congress. And in
creating the court of private land claims congress has prescribed the character
of claims which that court may determine and the conditions which must attach
to any claim which it may enforce. This claim, even if the grant in its inception
was valid, was not one which it was within the province of the court of private
land claims to approve and confirm. The eighth clause of section 13 forbids the
confirmation of a grant made upon any condition or requirement, either
antecedent or subsequent, unless it appears that such condition and requirement
had been performed within the time and in the manner stated in the grant. That
certain conditions or requirements were attached to this grant is evident from a
perusal of the application and the order. That they were not performed is
admitted by plaintiffs. Their contention is that performance was prevented by
the Mexican authorities, and, having been prevented, it should be considered
that performance was waived and the title had become absolute. Whatever may
be said as to the duty of this government to treat a condition whose performance
was prevented by the Mexican authorities as a condition performed does not
detract from the proposition that the court of private land claims is not vested
with such power. It is a mere creature of statute, with prescribed and limited
powers. It has no general equity jurisdiction. It can confirm a grant made upon
condition only when such condition was performed. It is not under the statute at
liberty to treat anything as equivalent to performance. Cases in which there was
no performance of the conditions of the grant are cases which must be
considered as reserved by congress for further action on its part. So that under
the terms of the act creating the court of private land claims, even if there were
no other objections to the proceedings, the admitted fact that the conditions and
requirements of this grant were never performed is sufficient to justify the
ruling of the court in dismissing the petition.

104 Of course, the observations above made may not be applicable to a case in
which the Mexican government had subsequently to the original grant, and
prior to the cession, waived the performance of the conditions; for, as it had
power in the first instance to make the grant without conditions, its action in
subsequently waiving or removing such conditions was equivalent to an
original grant without conditions.

105 We have not deemed it necessary to consider the matter of limitations and
laches. That this is an old claim is evident, 70 years having elapsed between its
inception and its prosecution. Whether it must also be adjudged a stale claim
and beyond judicial recognition need not be determined. The other reasons
presented for its rejection are sufficient.
106 We see no error in the proceedings, and the judgment is affirmed.