Whitney v. United States (167 U.S. 529)

by Henry Billings Brown

United States Supreme Court

167 U.S. 529

Whitney  v.  United States

This was a petition by Joel Parker Whitney and others filed in the court of private land claims for the confirmation of what is commonly known and called the 'Ca nada de Cochiti Grant,' containing over 100,000 acres, and situated on the Rio Grande river, in the county of Bernalillo, territory of New Mexico. On the day following, Manuel Hurtado and Jos e Antonio Gallego filed a suit against the United States for the confirmation of the same land, claiming under the same title. It appearing to the court that these two suits were for the same property and under the same original title, the court ordered them to be consolidated, and to proceed as one cause.

The petition set forth: That on the 2d of August, 1728, the king of Spain, by Juan Domingo de Bustamente, governor of the royal province of New Mexico, upon the petition of one Antonio Lucero, made a grant of a certain tract of land, bounded and described as follows: On the north by the old pueblo of Cochit; on the east by the Rio del Norte (otherwise called the Rio Grande); on the south by the lands of the Cochiti Indians; and on the west by the Jemez Mountain, with its entrances and exits, watering places, uses, and customs. That the granting decree for said land was signed by the governor on said date, and countersigned by Antonio de Cruciaga his secretary of state and war, and it directed that the grantee should be placed in royal and personal possession under the boundaries described in said petition, and under the conditions prescribed by the royal ordinances in that behalf as to the settlement of the same. It also directed that, after the possession of the land had been given to the grantee, the original expediente should be returned to the governor, to the end that duplicates thereof might be given to the grantee; that, in execution of said decree, Capt. Andres Montoya, chief alcalde of the pueblos of Cochiti, Santo Domingo, and San Felipe, gave to the said Lucero juridical possession of the land on August 6, 1728, executing and delivering the act of juridical possession on the premises in due form of law in the presence of his attending witnesses.

The petition also alleged that the granting decree and act of juridical possession were returned to the governor and placed in the royal archives at Santa F e, N. M., and that a testimonio, or duplicate thereof, was delivered to the grantee; and that the said testimonio was not in the possession, custody, or control of the petitioners, but that the same was deposited in the governmental archives at Santa F e upon the cession of New Mexico to the United States, and has ever since been in its custody.

It was also alleged that Antonio Lucero settled upon, occupied, improved, enlarged, and claimed the land in fee simple openly, continuously, and uninterruptedly from the date of the act of possession, August 6, 1728, for a period much longer than four years, and up to the time of his death, and that he died fully seised and possessed of the same; that his heirs at law and legal representatives have ever since continued under the same claim of title, peaceably occupying and possessing the same, save only in the year 1785, when it was intruded upon by one Antonio Gallego, a lieutenant in the military service at the place called 'Ca nada del Medio,' under pretense of authority from Governor de Anza to occupy and use the ca ada for the pasturage of the royal cavalry; whereupon, in the month of November, 1785, Antonio Lucero de Godoi and numerous others, descendants and heirs at law of said original grantee, presented their petition to Antonio de Armeta, chief alcalde and war captain, having, as alleged, judicial and administrative jurisdiction in the premises, complaining of the said intrusion by the lieutenant, Gallego, and asking for relief in the premises. It was alleged that, in view of said petition, Armenta, the said chief alcalde, reported said petition, and the subject-matter thereof, to the governor; and, upon due consideration of the petition, the governor found and determined, and so declared in substance to the chief alcalde and war captain, that, inasmuch as the petitioners were in all respects the legal heirs to the said tract of land, they were entitled to occupy the same in preference to any other individuals, and the said intrusion by the said Lieutenant Gallego was unjust and unfounded.

That thereupon the chief alcalde and war captain, under full authority in that behalf conferred upon him by the said governor, duly made his order and judgment, reciting the petition, report to the governor, and the determination of the superior authority thereon, adjudging and declaring that the said order and judgment, being an instrument in writing signed by the said chief alcalde and his witnesses, should remain as conclusive evidence of the rightful title of the said heirs to the said land granted, and its rightful acquisition by them and their descendants from the king of Spain; and by the said instrument the said alcalde, in the exercise of the judicial jurisdiction legally vested in him, declared that the same should remain before any tribunal as evidence for all time of the title of the heirs to the tract of land granted.

That the originals of said petition and adjudicatory instrument were in the possession of the respondent, and kept in the archives at Santa F e.

That the petitioners are interested in said tract under the original grantee by divers mesne conveyances from his heirs and legal representatives; and

That all conditions, precedent and subsequent, of the grant at any time incumbent upon the said grantee, his heirs or assigns, have been fully performed and discharged.

The answer of the United States put in issue the allegations of the petition generally, and specifically denied that the alleged granting decree and act of possession were returned to the governor and placed in the royal archives at the city of Santa F e, N. M.; denied that a testimonio or duplicate thereof was delivered to the said original grantee under and by virtue of the direction of the governor; denied that the alleged testimonio or duplicate was ever placed in the governmental archives at Santa Fe upon the cession of New Mexico to the United States, for the reason that there was no necessity for nor any law authorizing the same, but that the owners, or alleged owners, of the grant were the only proper custodians of said alleged testimonio. It denied specifically that Lucero ever entered upon the tract of land sued for, and occupied or appropriated the same, as alleged in said petition. for the reason that it was impossible and impracticable for him so to do, because, under the conditions of the country at the time and for more than a century thereafter, it was impossible for Lucero or any one else to occupy, appropriate, or use, directly or indirectly, the grant described in the petition,-all of which Lucero knew at the time he applied for said grant.

As to the allegation that, in 1785, Antonio Gallego intruded upon the Ca nada del Medio, an alleged portion of said tract, upon the pretense that he had authority from the governor to use the same for the pasturage of the royal stock, the government alleged that it had no knowledge or information; nor as to whether in said year Antonio Lucero de Godoi and others, claiming as descendants of Lucero, presented a petition to Armenta, chief alcalde, complaining of said intrusion, and asking for an investigation of the same or for relief; nor had it any knowledge or information as to whether Antonio Armenta, alcalde, reported said petition, or the subject-matter thereof, to the governor of New Mexico; nor as to whether, in passing on said matters, the said alcalde had any authority to act in that behalf under the authority of said governor; nor as to whether said alcalde undertook to make a finding in said matter; nor as to whether he undertook to or did attempt to make the allegation set forth in the petition, but it was alleged that, if he did do so, the same was without warrant or authority of law, and without any direct order from the governor, and that the said alcalde had no power or authority in that behalf except such as might be conferred upon him for that purpose by direct order of the governor of the province, and the government therefore denied that said alcalde had jurisdiction in the premises, and denied that any jurisdiction was shown in that behalf.

It denied that the originals of said petition and adjudicatory instrument, dated in the year 1785, before referred to, were or ever had been in the said archives; and alleged that, if the same were in the possession of the surveyor general, they were filed with him under the law of July 22, 1854, which provided for the adjustment of private land claims in the territory of New Mexico, and that they never constituted part of the archives of the Spanish or Mexican governments; that no action was ever taken upon said alleged acts of said justice by the governor of the province; and therefore it constituted neither adjudication nor admission on the part of the Spanish government, but was simply an unauthorized and unapproved act of an alcalde.

Further answering, the government alleged that the petition by Antonio Lucero was one for a small piece of land on which to cultivate ten fanegas of wheat and two of corn, and to pasture small stock and horses; that the boundaries designated in said petition were only to indicate the district of country within which said small piece of land was located; that in acting upon said petition, if he ever did, the said governor did not make a grant, but specially reserved that act until after the alcalde should have placed the petitioner in possession of the property and returned the expediente to him for final action, which was never done, and therefore no grant, either legal or equitable, was ever made.

Upon a hearing upon pleadings and proofs, the court of private land claims was of opinion that the petitioners were not entitled to the grant to the full extent demanded of 104,554.24 acres, but that they were entitled to a grant of land 'bounded on the north by the old pueblo of Cochiti, which is situated on the mesa of Cochiti, on the south side of the ca nada of Cochiti, which point is about 8,190 feet in a northerly direction from the northwest corner of the lands of the Indians of the pueblo of Cochiti, as the same has been fixed and determined by the survey and patent of the same by the United States of America; on the east by the Rio del Norte (otherwise called the Rio Grande); on the south by the lands of the Cochiti Indians, as the same have been fixed and located by the survey and patent thereof to the Indians of the pueblo of Cochiti by and under the authority of the United States of America; and on the west by the same old pueblo first above referred to as the northern boundary of the grant hereby confirmed, which said grant of lands contains in area about five thousand acres of land;' and that such claim was entitled to confirmation in the name of the original grantee, Antonio Lucero, for the use and benefit of all parties in interest, claiming by, through, or under him, by the same title. Whereupon petitioners prayed and were allowed an appeal to this court.

-John H. Knaebel, for appellants.

Matt. G. Reynolds, for the United States.

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

Notes