U.S. Supreme Court De Haro v. United States, 72 U.S. 5 Wall. 599 599 (1866)
De Haro v. United States
72 U.S. (5 Wall.) 599
APPEAL FROM THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA
1. In 1844, persons in California petitioned the Mexican governor of that province for a grant of certain described land, situated in the vicinity of the Mission of San Francisco. The petition was referred to the secretary of state, who reported that the land was unoccupied, but that inasmuch as "common lands" (ejidos) were to be assigned to the said mission, he was of opinion that in the meanwhile the petitioners might occupy the land solicited under a provisional license. The governor thereupon made a decree declaring the petitioners "empowered to occupy provisionally" the land, and directing a proper document to be issued to them and a registry made of it. An instrument was accordingly issued to the petitioners, signed by the governor and attested by the secretary of state, by which the governor, in virtue of the authority vested in him and in the name of the Mexican nation, granted "to them the occupation" of the land, subject to the measurement to be made of common lands for the establishment of San Francisco, with conditions against alienation, and for the occupation of the land within a year, and for forfeiture in case the conditions were not complied with. On this case
Held that the decree of the governor constituted only a naked license to occupy the land provisionally, and that the instrument issued pursuant to the decree did not pass any title to or interest in the land; that this license was a personal privilege of the parties, and upon their death did not extend to their heirs; that a claim for land resting upon a license of this character is not entitled to confirmation under the Act of Congress of March 3, 1851.
2. The term "titulo," in the Spanish language, only means the instrument which is given as evidence of the right, interest, or estate conferred; it does not indicate the measure of such right, interest, or estate; hence it applies equally to papers which convey title in the usual acceptation of the term, and to those which confer a mere right of occupancy.
Appeal from the District Court for the Northern District of California in a claim for land, now of immense value, originally presented to the board of land commissioners established by the Act of March 3, 1851. The case was thus:
In April, 1844, Ramon and Francisco de Haro presented a petition to the Mexican governor of the province of California for a grant of a tract of land, called the "Potrero of San Francisco," situated near the mission of that name. The petitioners were minors, and their petition was accompanied with the consent of their father that they might present it, and also his application to the local alcalde for information as to the condition of the land solicited, and the alcalde's reply thereto. The petition and accompanying papers were referred to the secretary of state for his report thereon. The secretary reported that the land was unoccupied, but, for reasons stated, he was of opinion that a provisional license to occupy it should be given to the petitioners. A decree was accordingly made pursuant to this suggestion, and was followed by the issue and delivery to the petitioners of a formal document ceding to them the occupation provisionally, subject to certain conditions. The following is a translation of the several papers mentioned:
" [Petition for the Grant] "
"EXCELLENT SENOR GOVERNOR OF BOTH CALIFORNIAS:"
"We, Francisco de Haro and Ramon de Haro, in the name of our family, Mexican citizens by birth and residents of the ex-Mission of San Francisco de Asis, represent to your Excellency with due submission that inasmuch as we have to remove the share of cattle appertaining to our deceased mother out of the rancho of the deceased Jose Antonio Sanchez, and as we have in view to tame them, we entreat your Excellency to grant to us in the exercise of your Excellency's powers a small parcel of land called Potrero de San Francisco &c.;, because there is no
competent person to do it, according to the annexed sketch that we submit to your Excellency; and as said parcel of land can be enclosed, we intend to place on it the tamed cattle, because of the small extent of the location occupied at present by the cattle of our father, who has given us due permission to petition, as we are under the parental power and control. Therefore we entreat your Excellency to grant us this benefit, whereby we shall receive favor and grace. We swear not to proceed moved by malice &c.; This memorial has not been written on paper of the corresponding stamp, there not being any here."
"RAMON DE HARO"
"FRANCISCO DE HARO."
"SAN FRANCISCO, April 12, 1844"
" [Consent of the Father of the Petitioners] "
"I, the undersigned, grant by the present document, to my sons, Francisco and Ramon de Haro, the corresponding assent enabling them (because they are minors) to solicit the Superior Government of the Department the grant of the Potrero of the ex-Mission of San Francisco de Asis, at present lying unoccupied, and represented in the sketch accompanying the petition."
"The said Potrero being intended to be (if it should please the Superior authority to grant it) for the benefit of their other brothers as well as themselves, and to answer due ends I give them this document in the aforementioned ex-Mission of San Francisco de Asis, on the 12th day of April, 1844."
"FRANCISCO DE HARO"
" [Application of the Father of the Petitioners to the local Alcalde "
" for Information as to the Condition of the land solicited] "
"TO THE HONORABLE THE ALCALDE OF FIRST NOMINATION OF SAN FRANCISCO:"
"I, Francisco de Haro, a resident of this jurisdiction, in the name of my sons, Francisco and Ramon, formally appear and say that my sons aforementioned have received my assent to solicit of the Superior Government of the Department the grant of the Potrero that lies opposite the ex-Mission of San Francisco de Asis, which stands unoccupied, and the enclosures of which
are thrown down and lying on the ground, and inasmuch as I wish to remove the obstacles that may obstruct the speedy dispatch of said petition, and since it must be referred thence to this place for report and information and I want to obviate this delay, I therefore apply to you, in order that you be pleased to report as you may think convenient, in the subject of my solicitation."
"Therefore I entreat you to proceed in this matter according to right, and to direct this memorial, written on common paper, there not being here any of the corresponding stamped. Thus I swear &c.;"
"FRANCISCO DE HARO"
"SAN FRANCISCO, April 13, 1844"
" [Reply of the local Alcalde to the Application for Information] "
"SAN FRANCISCO DE ASIS, April 13, 1844"
"In consideration of the reasons presented by the party who solicits, I proceed to report about the location in request, declaring that up to this day there are no claimants of any kind, and it is not occupied by any community or private individual."
" [Order of Governor referring Petition and accompanying Papers to the "
" Secretary of state to report thereon] "
"MONTEREY, April 29, 1844"
"Let the secretary of state report on the same and take the necessary information."
" [The Report of the Secretary] "
"MONTEREY, April 29, 1844"
"EXCELLENT SENOR GOVERNOR:"
" The Mission of San Francisco no longer holds property of any kind, and consequently the Potrero (or enclosed place for keeping horses) in request 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 land (ejidos [ Footnote 1 ]), 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, to any private individual. Your Excellency's own decision will doubtless be the most proper one."
"MONTEREY, April 30, 1844"
" [The Decree of the Governor upon the Petition and Secretary's Report] "
"MONTEREY, April 30, 1844"
"After examining the petition at the head of this proceeding, the preceding reports, and whatever else was thought to the purpose, in conformity with the laws and regulations on the subject, I declare Francisco and Ramon de Haro empowered to occupy provisionally the piece of land called Potrero de San Francisco, to the extent of half a square league, the boundaries to be the extremities of the mouth of the Potrero, and the range of hillocks or highlands environing it. Let the corresponding patent be issued; let it be duly entered, and let this information be communicated to the person in charge of said establishment. "
" [The Document issued by the Governor, and delivered to the petitioners "
" pursuant to the above decree] "
"MANUEL MICHELTORENA, GENERAL OF BRIGADE IN THE MEXICAN ARMY, ADJUTANT-GENERAL OF THE STAFF OF THE SAME, COMMANDANT-GENERAL, GOVERNOR AND INSPECTOR OF THE DEPARTMENT OF CALIFORNIA:"
"Whereas, Francisco and Ramon de Haro have solicited the grant of the Potrero de San Francisco, so called, from the mouth of the estuaries, together with the high land surrounding it, all the necessary investigations having been made according as the laws and regulations in the matter prescribed, by virtue of the authority in me vested, I have thought proper, in the name of the Mexican nation, to grant to them the occupation of the aforementioned
Potrero, subject to the mensuration to be made of the corporation or common lands (ejidos) for the establishment of San Francisco, and under the following conditions: [ Footnote 2 ]"
"1st. They shall have no power, under any consideration, to sell or alienate it to the detriment of any of the proprietors of the establishment of San Francisco. "
"2d. They shall not obstruct the paths, roads, and servitudes, using it for culture and cattle they intend to introduce on it, but within a year at the most it must be occupied. "
"3d. The parcel of land to which reference is made is of half a square league, and if they should transgress any of these conditions, they shall lose their right to this provisional grant, which is delivered to the parties concerned for their security, and other ends. "
"Given in Monterey on the first day of May, 1844."
Under the last document, the De Haros went into possession of the land and occupied if for the pasturage of horses and cattle until their death, which occurred in May, 1846. [ Footnote 3 ] The land was enclosed on three sides by water, and a wall had been erected by the priests of the mission on the fourth side. This wall had gone to ruin, and the De Haros, after obtaining their concession, repaired it. The land was not a fertile tract, and was only fit for pasturage. The father of the De Haros succeeded to whatever interest they possessed in the property at their death, and he occupied the land afterwards in a similar manner -- that is, for the pasturage of horses and cattle -- until his death, which took place in 1849. His successors in interest were his children, six girls and one son, all minors at the time. From these children the property passed into the hands of numerous American citizens, for whose benefit, after our conquest, the claim was
presented for confirmation to the board of land commissioners, established by the Act of March, 1851, to settle private land claims in California.
When the claim was pending before the land commissioners, two papers additional to those set out at pages 72 U.S. 600|600-604 were produced and given in evidence, one of them purporting to be a grant in fee simple of the land to the De Haros, signed by Governor Micheltorena, bearing date May 24, 1844, and the other purporting to be a grant of a similar nature signed by the same officer September 18, 1844. The signature to both was genuine, but it was added after the cession of the country to the United States. The instruments were antedated, but by whom they were prepared was not shown.
The commission confirmed the claim, rejecting the paper of May 24, 1844, as a forgery or antedated, but relying upon the paper of September 18, 1844, though not without grave doubts as to its genuineness.
On appeal to the district court, additional proof as to the second paper was taken and its real character exposed, and it, as well as the first paper, was formally abandoned by the counsel of the claimants, and the claim for confirmation was based solely on the provisional license and the proofs showing an occupation under it.
The clause which usually appears in Mexican grants of land in California, namely, that the party shall lose his right to the land in case he violates the conditions attached, was altered in the document of May 1, 1844, issued to the De Haros by the governor, to the words, "he shall lose his right to this provisional concession " in case he violates the conditions.
The document was mentioned in the list of grants made by the secretary of state, Jimeno, known as Jimeno's Index, and is noted in the record Toma de Razon. The entry in this last book was as follows:
"226. Don Francisco and Ramon Haro, on the 1st May, 1844. "
"Title (titulo) delivered to them of the tract named El Potrero, in extent of one half league square."
The district court rejected the claim, holding that the right conferred by the document in question was a mere license to occupy the premises until the ejidos, or common lands, should be measured.
In distinguishing the case from some others cited, the court in its opinion said:
" In this case the permission is given to occupy only until an assignment of the land to the pueblo is effected. The governor not only indicates no willingness or intention to grant, but, in obedience to Jimeno's suggestion, he refuses to grant, and ex industria limits the concession to the permission to occupy land not then used by the Mission."
From the decree of that court the case was now here on the appeal of the claimants.
MR. JUSTICE DAVIS 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 plaintiffs 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 ascertain 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
and Ramon de Haro, residents of the ex-mission of San Francisco, to Governor Micheltorena, asks for the grant of the potrero for the purpose of pasturing cattle inherited from their mother, which they were desirous of taming and had to remove out of the rancho where they then were. The assent of their father was necessary to enable them to solicit the grant, as they were minors, and it was given.
According to the custom of the country, this petition was referred to the secretary of the department to ascertain what was 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 property, 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 of 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 enclosure was vacant, no harm could result to the public or any private individual by its temporary occupancy, and as the petitioners wanted very
much a place to pasture the cattle, which had fallen to them in right of their deceased mother, he recommended that they be permitted to occupy it temporarily, and for their security, the governor should issue to them a provisional license. The report was evidently predicated on the belief that the grant of the land would interfere with the rights of the mission or pueblo; but in the meantime, as they were not ascertained, there could be no reasonable objection to the De Haros having the permissive occupation of the tract. It nowhere appears an interest in the land was in any event to be conceded, nor were any promises held out to the De Haros, if the potrero should prove to be outside of the common lands, a title in fee, or any less title should be assured to them. Jimeno recommended nothing more than a provisional license, enabling the parties to occupy the land for the occasion. The question arises, was Micheltorena's decision in conformity with Jimeno's recommendation? The material part of the order or decree of the governor, and which was extended on the same day of the approval of the report, is as follows:
"I declare Francisco and Ramon de Haro, empowered to occupy provisionally the piece of land called Potrero de San Francisco to the extent of half a square league. . . . Librese el correspondiente despacho -- let the corresponding order or dispatch be delivered; let it be duly entered, and let this information be communicated to the person in charge of said establishment."
It is very clear that this decree conforms to the recommendations of the report, and that Micheltorena did not intend to confer any greater powers on the De Haros than Jimeno advised.
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 dispatch 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 Haro to occupy the beforementioned pasture
ground, subjecting themselves to the limits that shall be prescribed to the establishment of San Francisco."
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 dispatch 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 right, but by way of grace and favor.
But it is said the occupation thus permitted could ripen into a grant in fee or some lesser estate in case the potrero was not included within the admeasurement of the ejidos. Not so, however, for there are in the title papers no words granting the tract of land, either absolutely or on condition, provisionally or otherwise, nor any words by which any estate or interest in it can be raised by implication. The power conferred resembles a grant in no particular, but is a bare naked license, and to be governed by the rules of law applicable to such a power.
But the authority of the "Toma de Razon" 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 Razon. The office of the Toma de Razon 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, [ Footnote 4 ] "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 (titulos), 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 generalissimum, 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
potrero in question. There was no contract to do more nor the semblance of one.
Without pursuing the subject further, we are satisfied from a careful examination of this Mexican record that the only thing conferred or intended to be conferred on the De 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 it. 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 by 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. [ Footnote 5 ] 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
given by Micheltorena ended? The De Haros died in 1846, while the Mexican government owned California, and with their death the license terminated. As long as they were in full life, they had a valid authority to enter upon the potrero and pasture their cattle, but as the privilege was a personal one, it ceased when they died, and did not extend to their heirs. The continued possession by the father and those under him estops no one -- certainly not a sovereign power like Mexico or the United States. The representatives of the De Haros could doubtless lawfully enter upon the potrero in order to remove the property left there, but their authority extended no further.
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 not 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 Haros 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 will, and held at the sufferance of the Mexican authorities. They could not have been deceived as 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.
It may be true that Micheltorena, when he conceded to the De Haros the privilege of pasturing cattle on the potrero, did not intend to revoke it, if the conditions were observed, until the ejidos were measured, and that it was so understood by them; but this can in no aspect of the case alter the relations of the parties to this suit. It was a personal privilege conceded to the De Haros alone, and with their death it ceased. The license itself not only contains no words extending it beyond the lives of the parties, but all the circumstance of the case exclude the idea that the governor intended to pass any interest descendible to heirs.
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 improvements, and left nothing on it but what could be easily removed and made available to their heirs.
MR. JUSTICE FIELD dissented.
[ Footnote 1 ]
The word is elsewhere translated as "places for common resort," or "pleasure grounds." -- REP.
[ Footnote 2 ]
This translation of the document is given in the record; elsewhere the translation of the last four lines of the first paragraph is given as follows:
"I have determined to permit the Messrs. De Haro to occupy the beforementioned pasture ground, subjecting themselves to the limits that shall be prescribed to the establishment of San Francisco."
[ Footnote 3 ]
They were killed by the Americans during our war with Mexico.
[ Footnote 4 ]
[ Footnote 5 ]
Or in the last edition (4th), p. 736, notes to Prince v. Case and Rerick v. Kern. -- REP.