122 U.S. 365
7 S.Ct. 1271
30 L.Ed. 1211
MAXWELL LAND GRANT Co. and others.
May 27, 1887.
Asst. Atty. Gen. Maury, for petition.
[Petition for Rehearing from pages 366-370 intentionally omitted]
A petition for a rehearing has been filed in this case, and on account of its importance, as well as the interest in it manifested by the department of the interior, we have considered the petition very fully, and, departing from our usual custom, make some response to its suggestions.
The first ground on which a rehearing is asked is that this court was in error in treating the grant to Beaubien and Mirands as an empresario grant, upon which alleged mistake it is asserted that the decision of the court turned. The error, however, is in the assumption in the petition that the decision of the court turned upon that point. It is true that the assistant attorney general, in his argument on behalf of the United States, rested the case almost exclusively, so far as he was concenred, on the proposition that the validity of the grant was governed by the limitation of the decree of the Mexican congress of 1824 to 11 square leagues for each grantee, in ordinary grants; and in response to that argument we endeavored to show that while the land in controversy was not strictly an empresario grant, there being no evidence of a contract with any person to bring emigrants from abroad for the purpose of settling them upon the land, yet that it partook very largely of that character; and that Beaubien and Miranda, Gov. Armijo, the departmental assembly, and the surveyor general had all looked upon it as partaking so much of that nature, in regard to the quantity of land granted, as well as the actual settlement of families upon it, that the congress of the Unites States was justified in treating it likewise. But we stated distinctly that we did not rest our judgment upon the fact of its being an empresario grant, but upon the proposition that the congress of the United States, having confirmed this grant as made to Beaubien and Miranda, and reported for confirmation by the surveyor general of New Mexico to that body, without qualification or limitation as to its extent, acted in that respect within its power, and that its action was conclusive upon the court.
In the opinion, after discussion the history of this grant, and its conformity to the character of a colonization grant, it was said, (121 U. S. 363, ante, 1019:) 'The final confirmation of this grant by the congress of the United States in 1860 affords strong ground to believe that that body viewed it as one of this character, and not one governed by the limitation of eleven square leagues to each grantee.' Afterwards we added, (page 365, ante, 1020:) 'But whether, as a matter of fact, this was a grant not limited in quantity by the Mexican decree of 1824, or whether it was a grant which in strict law would have been held by the Mexican government, if it had continued in the ownership of the property, to have been subject to that limitation, it is not necessary to decide at this time. By the treaty of Guadalupe Hidalgo, under which the United States acquired the right of property in all the public lands of that portion of New Mexico which was ceded to this country, it became it right, it had the authority, and it engaged itself by that treaty, to confirm valid Mexican grants. If, therefore, the great surplus which it is claimed was conveyed by its patent to Beaubien and Miranda was the property of the United States, and congress, acting in its sovereign capacity upon the question of the validity of the grant, chose to treat it as valid for the boundaries given to it by the Mexican governor, it is not for the judicial department of this government to controvert their power to do so.'
In support of this we cited Tameling v. United States Freehold, etc., Co., 93 U.S. 644, in which that proposition is emphatically laid down. And in the concluding paragraph of the opinion, referring to the constitutional provision that congress shall have power to dispose of the territory or other property belonging to the United States, (page 382, ante, 1029,) we further said: 'At the time that congress passed upon the grant to Beaubien and Miranda, whatever interest there was in the land claimed which was not legally or equitably their property was the property of the United States; and congress having the power to dispose of that property, and having, as we understand it, confirmed this grant, and thereby made such disposition of it, it is not easily to be perceived how the courts of the United States can set aside this action of congress.' It is therefore quite clear that, as regards this question, the court rested its opinion upon the action of the congress of the United States.
In reference to this action of congress the petition says that it was error on the part of the court 'further to assume that the surveyor general reported to congress upon the extent of the grant, or that congress knew or considered the question of quantity, since no survey had been made, and no statement of area, other than that made by Beaubien to the departmental assembly, appears in the papers in the case.' It is nowhere stated in the opinion of the court that congress had before it any actual computation of the contents of this grant, either of the number of acres or the number of square leagues; but what the court said upon that subject was in reply to the argument of the counsel for the United States that the surveyor general had no authority to determine upon the extent of the grant. This was shown to be an error, inasmuch as the statute under which he acted required him to report upon the extent of the grant, as well as upon its validity. It is true that there was in the papers no report of the number of leagues or the number of acres embraced within the grant. That was probably not known with any degree of accuracy by anybody at that time. But the grant by Armijo to Beaubien and Miranda described the boundaries in a manner which could leave no doubt upon the mind of congress that the grant was an immense one, and so largely exceeded 22 leagues that there could be no question upon that subject. Besides this, there was among the papers in the office of the surveyor general the diseno or plat, made and returned by the Alcalde Vigil, who delivered the juridical possession to the grantees, which also made it plain that an immense quantity of land beyond the 22 leagues was included within the grant.
Other reasons given in the opinion, which we do not think it necessary to repeat here, convince us that congress knew that it was dealing with an extraordinary grant, and must have decided that it should not be limited by the 11 leagues of the Mexican law. It is said, further, in the petition that 'the court was also mistaken in conceiving that Beaubien's statement to the departmental assembly, that the grant claimed did not exceed fifteen or eighteen leagues, referred to a grant made to Martinez.'
In the argument of the case before us counsel made but a brief allusion to the proposition that Beaubien, in the petition which he presented against the intrusion of the priest Martinez, speaks of his own grant as being only about 15 leagues, to which we responded, (page 373, ante, 1023:) 'We think a critical examination of that petition will show that he is speaking of the claim of Martinez and his associates as amounting in all to about fifteen leagues, and not of his own claim under the grant.' As this is again presented to us as a reason for a rehearing in this case, we will give a little more attention to it than its importance deserves.
After the grant was made to Beaubien and Miranda, on January 11, 1841, Cornelio Vigil, on the twenty-second day of February, 1843, as justice of the peace, delivered the juridical possession, of which we have already spoken, to the grantees. The petition of Charles Beaubien to the then governor of New Mexico, who appears to have been some person other than Armijo, the original grantor, is dated April 13, 1844. It was designed to obtain a revocation of an order made by the then governor, February 27, 1844, permitting Martinez to use and occupy a part of the land included within the grant by Armijo to Beaubien and Miranda. The whole matter is very imperfectly stated, but it would seem that Martinez, in his petition asking for this order, asserted that the grant to Mr. Charles Bent, which was prior in time to that to Beaubien and Miranda, included the land which he and his associates desired to use, and which he had purchased of Bent. It will be readily seen by any one, even through the bad translation of the language of Beaubien, that he is endeavoring to show that the grant to Bent could not include any of the land within his own grant. He says on that subject: 'I have been prevented from carrying those projects into effect, [meaning the making of settlements upon his grant,] on account of the decree of the twenty-seventh of February last, issued by your excellency, and which, through your secretary, was communicated to the prefecture of the First district, in order that paying attention to the petition addressed to your excellency by the curate Martinez and others, in reference to the grant of lands made to the citizen of the United States, Mr. Charles Bent, and that all use made of them be suspended, I have to state to your excellency, in defense of those lands which are in our possession, according to the titles thereto, which are in our possession, that the petition addressed to your excellency by the curate Martinez and others is founded upon an erroneous principle, as the aforesaid Mr. Bent has not acquired any right to the said lands. It is therefore very strange that the curate Martinez and others pretend to involve our property, as it has no connection with that of that individual. Therefore it is to be presumed, the necessary consequence must be, that the curate Martinez and his associates do not know to whom those lands belong, nor their extent; as he states that a large number of leagues were granted, when the grant does not exceed fifteen or eighteen, which will be seen by the accompanying judicial certificates.' He then goes on to show other errors and mistakes in the claim of Martinez and his associates, on account of which he appeals to the governor, who referred the matter to the departmental assembly, and that body recommended the revocation of the order in favor of Martinez, to which the gv ernor conformed.
We think it impossible for anybody, after reading this statement, with any just conception of the facts to which it related, to believe that Beaubien, in referring to the 15 or 18 leagues, meant his own grant, and not the grant to Charles Bent, under which the curate Martinez was claiming. It would be an absurdity to suppose that Beaubien, claiming a grant whese boundaries, described by rivers, mountains, and uplands, must have contained more than a million of acres, to whom juridical possession had been delivered, and the report of it made about a year before these proceedings, could have intended to make to any public authority a statement, which must be referred to the departmental assembly composed of the representatives of the territory, that his grant only included 15 or 18 leagues. This fact, concurring with the grammatical construction of the language used, the meaning of which can be plainly perceived through what is, perhaps, a very imperfect translation, leaves no doubt now in our minds, after a thorough examination, that the statement of the opinion was correct.
There is a reference in the part of the petition for a rehearing which was prepared in the office of the commissioner of the general land-office to the existence of new and material evidence touching the fraudulent character of the grant, which we must suppose to have been addressed to the secretary of the interior and the attorney general, as reasons for obtaining a new trial if they could, and not addressed to this court as any legal foundation for reconsidering its decision. If this court should grant a rehearing, it could only be had, according to the uniform course of the court during its whole existence, upon the record now before the court as it came from the circuit court for the district of Colorado.
We have thus considered all the points suggested in the petition as grounds for rehearing with the utmost care. The case itself has been pending in the courts of the United States since August, 1882, and, on account of its importance, was advanced out of its order for hearing in this court. The arguments on both sides of the case were unrestricted in point of time, and were wanting in no element of ability, industrious research, or clear apprehension of the principles involved in it. The court was thoroughly impressed with the importance of the case, not only as regarded the extent of the grant and its value, but also on account of its involving principles which will become precedents in cases of a similar nature, now rapidly increasing in number. It was therefore given a most careful examination, and this petition for a rehearing has had a similar attentive consideration. The result is that we are entirely satisfied that the grant, as confirmed by the action of congress, is a valid grant; that the survey, and the patent issued upon it, as well as the original grant by Armijo, are entirely free from any fraud on the part of the grantees, or those claiming under them; and that the decision could be no other than that which the learned judge of the circuit court below made, and which this court affirmed.
The petition for rehearing is therefore denied.