LEESE and VALEJO, Appellants, v. CLARKE, Respondent, 3 Cal. 2

Murray, Chief Justice, delivered the opinion of the court. Anderson, Justice, concurred; “ that the judgment of the court below be affirmed.” This was an action of ejectment brought by the appellants to recover possession of a certain tract of land, situated in the City of San Francisco. The whole record is encumbered with exceptions to the various rulings of the court below, which are unnecessary to be considered, as the case must ultimately turn on the question, whether the grant under which the plaintiffs claim title is sufficient in law to sustain an ejectment.

The grant under which plaintiffs claim, purports to have been made to them May, 21st, 1839, by Alvarado, Governor of California, prior to its acquisition by the United States.

Assuming for the present that the courts of this State can entertain jurisdiction of titles of this description without previous confirmation or legislative recognition, a position to which this court is by no means to be considered as assenting, and that the land in question was public domain of Mexico at the time of its alienation, it is necessary for us to ascertain the regulations established by the government of Mexico in relation to grants of land, and whether the present one under consideration is sufficient and in conformity to the law.

It may be as well to observe in the outset, that the authorities cited by counsel and supposed to be conclusive by many in relation to the decisions of Louisiana and Florida land claims, and the laws and decrees of Spanish monarchs, together with the usages of the royal councils and governors, have no particular weight as authority in the decision of this case.

Prior to the Mexican revolution which produced the Plan of Igula, February 24,1821, the unappropriated lands in this country constituted a part of the domain of the Spanish monarchs, who alone represented and exercised the sovereignty of the Spanish nation. The royal governors were the mere deputies of the king, and exercised the sovereignty in his name. His will, manifested in the form prescribed by his regulations, operated as a valid alienation of the public domain.

His governors, acting under his authority, and in his name, were the mere executors of his will—whence the law or decrees of the kings, and the regulations and usages of their governors, sanctioned by royal approval or acquiescence, afforded the proper tests by which to determine the validity of grants of land belonging to the nation whose sovereignty those kings represented and exercised, and they are accordingly consulted and relied upon by the courts of the United States in adjudicating Spanish claims in Florida and Louisiana.

But on the 24th of February, 1821, the relation between Mexico and Spainceased, and the sovereignty became vested in the Mexican nation; and since that time no valid alienation could be made in any of the territories of Mexico, except by

an act of Mexican sovereignty. The royal decrees, regulations, and usages, ceased to have any effect whatever as to subsequent grants of lands. This point was determined by the Mexican Congress, in a case-which arose shortly after the independence of that government, and has ever since been acquiesced in. On the 17th of January, 1821, the elder Austin obtained an inchoate grant of lands from-the royal governor of Texas. On the 19th of August, the Mexican governor of that province (Martinez), assuming the powers properly exercised by the royal governors, modified the grant in favor of the younger Austin.

Had the royal laws and usages still continued to retain their force, the acts of Martinez would have been valid,’but the Mexican government, at the same time it recognized the act of the-royal governor as valid, because done before the change of sovereignty, refused to confirm the act of its own governor, done after the change, on the ground that the sovereignty could be exercised only by the Mexican nation.

The subject attracted public attention, and the Mexican Congress were about passing a general law in relation to the alienation of public lands, when Iturbide forcibly dispersed the members of that body, and caused himself to be proclaimed emperor. On the 4th of January, 1823, he promulgated a general law on the subject, but being shortly afterwards deposed, Congress, on the 11th of April, 1823, suspended that law.

On the 18th of August, 1824, Congress enacted a general colonization law, prescribing the mode of granting public lands throughout the Mexican territory. (1 White’s Recap. 561, 8, 71, 76, and 82.) That law was limited and defined by a series of regulations ordained by the Mexican government (November 21, 1828).

By these laws and regulations, which have ever since continued in force, the governors of territories were authorized to grant, with certain specified exceptions, vacant lands, &c. (Congressional Documents relative to California, 1850, p. 120-1.) By the fundamental law of ’24, the regulations of 1828, and the legislation of the departmental legislature consistent therewith, must be ascertained and determined the validity of every grant of land in California.

Art. 2d, of the Act of ’28, declares, that within it are comprehended, “those lands of the nation, not the property of individual corporations or towns, which can be colonized.” The 3d

article provides, that “ the legislatures of all the States will, as soo'n as possible, form colonization laws, regulating for their own States, conforming themselves in all things to the constitutional acts, general constitution, and the regulations established in this law.” The 4th

article provides, “that no lands shall be colonized within twenty leagues of the limits of any foreign nation, nor within ten leagues of the coast, without the previous approbation of the supreme executive power.” The first

article 'Of the regulations of ’28, referred to, declares that “the governors of territories are authorized, in compliance with the law of ’24, and under the conditions hereinafter specified, to grant vacant lands in their respective territories, &c., for the purpose of cultivating and inhabiting them.” Art. 2d. “ Every person soliciting lands shall address to the governor of the territory a petition, describing, as distinctly as possible, by means of a map, the land asked for.” Art. 4th. “The governor will accede^or not to such petitions, in exact conformity to the laws on the subject, and especially to the laws of 1824.” Art. 5th and 6th. “ The grants so made shall not be held to be definitively valid, without the previous consent of the territorial deputation, to which end the respective documents (expedientes) shall be forwarded to it.

When the governor shall not obtain the approval of the territorial deputation, he shall report to the Supreme Government, forwarding the necessary documents for its decision.” Art. 8th. “ The definitive grant asked for, being made, a document, signed by the governor, shall be given, to serve as a title to the party interested, wherein it must he stated, that said grant was made in exact conformity with the provisions of the law, in virtue whereof possession shall be given.” Art. 9th. “The necessary record shall be kept in a book, destined for the purpose, of all the petitions presented and grants made, with the maps of the lands granted, &c.” ' I have cited these regulations to show that the alienation of the public domain of Mexico was a subject of careful consideration with that government, hedged around with an infinity of restrictions for the protection of the sovereignty, and that the loose and careless conduct of her governors, in executing this trusc, was not approved by the Supreme Government, although removal from the scene, and the insignificant value of the lands at that time, seemed to divert public attention from these abuses.

To these regulations this court can alone look, and by them every grant must be determined. Had we the power to discriminate, its exercise would be more dangerous, and productive of more injustice, than the total inability to go beyond them. If the officers of the Mexican government, to whom was confided this trust, exceeded their authority or neglected the solemnities and formalities of the law, this court is bound to take notice of it, and cannot shield those claiming under such titles from the necessary consequences of ignorance, carelessness, or arbitrary assumptions of power.

The grant from Alvarado to Leese and Valejo contains nothing but a petition and grant of the governor. There is no map attached, no survey, record, or evidence, that the plaintiffs have ever been put in judicial possession, no act of the territorial deputation confirming the act of the governor, or evidence that the grant, together with the map, were recorded in a book, kept by law as a record of said grants, as provided in sec. 9th of the Act of ’28.

But that these requisitions must be fully complied with, this court has no doubt, without which a severance of the land from the public domain and a rigid adherence in all other respects, the title did not pass to the grantees, but remained in the government of Mexico. The title at best can only be considered as inchoate. It passed with the map of the property of Mexico to the United States, who now hold it, subject to the trust imposed by the treaty of cession and the equities of the grantees.

The execution of this trust, however, is a political power, to which the judiciary is not competent, until made so by legislation. Wenvard v. Massey, 8th Howard; Boisdu v. United States, ibid. In the case of Wenvard v. Massey, already cited, the court held, that every step pointed out by the law must be complied with, and although a grant and survey were regularly recorded, yet without the approval of the Intendant General, the grantee did not become the owner, and the title remained in the sovereign, notwithstanding the Intendant always confirmed the grants, or had never been known to reject one.

If the governor of California possessed any authority to make this grant, and the land so granted was at the time part of the public domain of Mexico, then the government of Mexico retained the power to confirm or reject it. That power was a political one, and passed to the United States under the treaty of cession, to whom the exercise of it belongs. In the same case, the court held that, “ No suit can be brought in an ordinary action of ejectment on a concession and survey, for want of strict legal title to sustain it.

Such claimants were not regarded as the owners of the land, until the real title was delivered, completed, in the language of Spanish regulation. It was therefore manifest, that claims resting on the first incipient steps, must depend for their sanction and completion upon the sovereign power. “ No standing has therefore ever been allowed in any ordinary judicial tribunal, until Congress has confirmed them, and vested the legal title in the plaintiff.” Many arguments have been adduced to demonstrate, that the grant to Leese and Yalejo is absolutely void.

It is not our purpose to follow this matter further than the necessities of the ease require. Holding as we do that the law of ’24, and the regulations of ’28, must be strictly complied with, that the title of the plaintiffs at best is inchoate and incomplete, and therefore insufficient to maintain ejectment, we are of opinion the court below properly excluded it as testimony. Whatever errors may be found in the record on other points is a matter of no moment, and the court sees no reason for sending this case back. The judgment' of the court below is therefore affirmed.