Baldwin, J. delivered the opinion of the Court
Field, C. J. and Cope, J. concurring.
Plaintiff holds under a grant from the Governor of California, in 1839, approved by the Departmental Assembly, in 1840, and confirmed and patented by the United States, under the law of 1851. The grant was for one square league, a small portion of which, including the land in question, falls within the limits of four square leagues, measured, according to Mexican ordinances, from the center of the plaza of the old presidio. These facts are admitted. But defendants claim that the land in dispute, being within the general limits assigned by law to the pueblo, which was organized at the end of 1834, was not susceptible of grant by the Governor and Departmental Assembly of California. This question of law is now presented for our decision.
In Hart v. Burnett et al. (15 Cal. 544) we reviewed the facts connected with the existence of the “ mission,” and the organization of the “ pueblo ” of San Francisco, and suggested that, although a portion of these mission lands fell within the general limits of the pueblo, this pueblo may not have acquired a title to these lands, with right of possession, till after the secularization of that establishment, and then, probably, not to such portions of these lands as had been granted in private ownership, or dedicated to pious uses. Moreover, it was also shown that, although the general secularization law was passed in 1833, this mission had not been entirely secularized at the date of this grant, 1839 and 1840. There were numerous fluctuations and changes in the execution of this law of secularization, its execution being at one time entirely suspended, and the mission establishments partially restored to the direction and management of the mission priests. It [458]*458would be very difficult, if not impdssible, to determine, at any particular time, what portions of these mission lands were considered as susceptible of grant by municipal or Territorial authorities, and what portions were considered as still in the possession of the mission establishments. We know of no other rule applicable to this case, than that of the well established rule of legal presumptions, that the land actually granted was susceptible of grant.
It would seem to follow, from these premises, that the portion of land in dispute in this case, being both within the general limits of the pueblo, and within the limits of the old mission, then only partially secularized, was still exempted from the exercise of pueblo rights over it, and, consequently, must be presumed to be grantable, the same as any other land previously occupied by the mission establishments, but not exclusively dedicated to pious uses, as in the case of “ church lands.”
But we do not place our decision entirely upon this view of the case. We shall decide the question submitted: Had the Governor and Departmental Assembly power to make grants of land within the limits of pueblos ?
In discussing this question, we shall consider its application to the tierras consejiles fundos legales, or general body of land included within the pueblo limits, and not to the propios or ejidos, technically so called, which had been measured off, set apart, designated, or assigned, for particular uses, or for special purposes. It is not claimed that any such division, designation, or assignment was made of the lands of the pueblo of San Francisco, and the word ejidos is employed, in this case, in the loose and general sense in which it is often used in California documents, meaning municipal lands generally, and not the portion thereof which had been assigned for a special purpose.
We remarked, in Hart v. Burnett et al. (15 Cal. 549) “ If Governors have granted lands within the general limits of pueblos, it will be presumed, unless the contrary be shown, that such grants were made in accordance with the objects and uses for which such lands had been assigned and dedicated by the laws to the pueblos. The whole matter was subject to the control and direction of the Governor and Territorial Deputation, and the official acts of such officers, within the general scope of their powers, are presumed to have been done by lawful authority.”
The correctness of the general principles here announced is not disputed, but counsel for appellants have endeavored to destroy the force [459]*459of this presumption, by showing that this grant was not made by lawful authority, but in violation of positive law.
In the first place, it is said that this land being within the general limits of the pueblo, the law of 1824 and the regulations of 1828 had no application, and gave no authority to make the grant; and that it is to be inferred that this grant was made only under the authority of that law and of those regulations, because no others are recited or referred to in the grant.
On the contrary, it has been well settled, that a grant may be made under other and different authority than that recited in the grant, and that the grant may be valid, although the authority referred to in it may prohibit it being made, (United States v. Perchman, 7 Peters, 95.)
Nor does it by any means follow, that, because a particular tract of land, or some portion of it, falls within the general limits of a pueblo, this pueblo has such a right or title to this land as to exempt it from the general operation of the granting powers of the Governor and Deputation. The whole course of our reasoning in Hart v. Burnett et al. was opposed to this view of the character of pueblo titles. It is unnecessary to repeat our arguments here.
Supposing this grant to have been made exclusively under the authority conferred by the law of 1824 and the regulations of 1828, it is contended that no presumption of power to grant this land can arise, because the Supreme Court of the United States decided against such presumption, in the case of Cambuston (20 Howard, 63). We do not so understand that decision. It does not pretend to overrule any of the former decisions of that Court with respect to legal presumptions. It simply says, that where the authority to make the grant is expressly conferred, and the terms and conditions expressly prescribed by the law, the Court must look to the law for both the power to make the grant, and for the mode and manner of its exercise. No deviation from the mode and manner prescribed in the law has been suggested, and even if there had been, it may be questioned whether, after final confirmation and patent by the United States, we can inquire into the effect of any such alleged deviation; and if the land belonged to the nation, there could be no question of the power to make the grant. The presumption is, that it did so belong to the nation, until the contrary is shown. This has been attempted, by showing that it was within the legal limits of the pueblo; but, as already remarked, that is not [460]*460sufficient. As shown in Hart v. Burnett et al., the legal title to tliis land may, nevertheless, have remained in the nation, notwithstanding its general dedication or assignment to the pueblo. The only question, then, to be considered is: Was this grant a violation of the general object and uses to which this land was assigned or dedicated ? In other words: Did such assignment or dedication remove it from the exercise of the general authority to grant, conferred by the laws P This cannot be presumed; it must be shown.
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Baldwin, J. delivered the opinion of the Court
Field, C. J. and Cope, J. concurring.
Plaintiff holds under a grant from the Governor of California, in 1839, approved by the Departmental Assembly, in 1840, and confirmed and patented by the United States, under the law of 1851. The grant was for one square league, a small portion of which, including the land in question, falls within the limits of four square leagues, measured, according to Mexican ordinances, from the center of the plaza of the old presidio. These facts are admitted. But defendants claim that the land in dispute, being within the general limits assigned by law to the pueblo, which was organized at the end of 1834, was not susceptible of grant by the Governor and Departmental Assembly of California. This question of law is now presented for our decision.
In Hart v. Burnett et al. (15 Cal. 544) we reviewed the facts connected with the existence of the “ mission,” and the organization of the “ pueblo ” of San Francisco, and suggested that, although a portion of these mission lands fell within the general limits of the pueblo, this pueblo may not have acquired a title to these lands, with right of possession, till after the secularization of that establishment, and then, probably, not to such portions of these lands as had been granted in private ownership, or dedicated to pious uses. Moreover, it was also shown that, although the general secularization law was passed in 1833, this mission had not been entirely secularized at the date of this grant, 1839 and 1840. There were numerous fluctuations and changes in the execution of this law of secularization, its execution being at one time entirely suspended, and the mission establishments partially restored to the direction and management of the mission priests. It [458]*458would be very difficult, if not impdssible, to determine, at any particular time, what portions of these mission lands were considered as susceptible of grant by municipal or Territorial authorities, and what portions were considered as still in the possession of the mission establishments. We know of no other rule applicable to this case, than that of the well established rule of legal presumptions, that the land actually granted was susceptible of grant.
It would seem to follow, from these premises, that the portion of land in dispute in this case, being both within the general limits of the pueblo, and within the limits of the old mission, then only partially secularized, was still exempted from the exercise of pueblo rights over it, and, consequently, must be presumed to be grantable, the same as any other land previously occupied by the mission establishments, but not exclusively dedicated to pious uses, as in the case of “ church lands.”
But we do not place our decision entirely upon this view of the case. We shall decide the question submitted: Had the Governor and Departmental Assembly power to make grants of land within the limits of pueblos ?
In discussing this question, we shall consider its application to the tierras consejiles fundos legales, or general body of land included within the pueblo limits, and not to the propios or ejidos, technically so called, which had been measured off, set apart, designated, or assigned, for particular uses, or for special purposes. It is not claimed that any such division, designation, or assignment was made of the lands of the pueblo of San Francisco, and the word ejidos is employed, in this case, in the loose and general sense in which it is often used in California documents, meaning municipal lands generally, and not the portion thereof which had been assigned for a special purpose.
We remarked, in Hart v. Burnett et al. (15 Cal. 549) “ If Governors have granted lands within the general limits of pueblos, it will be presumed, unless the contrary be shown, that such grants were made in accordance with the objects and uses for which such lands had been assigned and dedicated by the laws to the pueblos. The whole matter was subject to the control and direction of the Governor and Territorial Deputation, and the official acts of such officers, within the general scope of their powers, are presumed to have been done by lawful authority.”
The correctness of the general principles here announced is not disputed, but counsel for appellants have endeavored to destroy the force [459]*459of this presumption, by showing that this grant was not made by lawful authority, but in violation of positive law.
In the first place, it is said that this land being within the general limits of the pueblo, the law of 1824 and the regulations of 1828 had no application, and gave no authority to make the grant; and that it is to be inferred that this grant was made only under the authority of that law and of those regulations, because no others are recited or referred to in the grant.
On the contrary, it has been well settled, that a grant may be made under other and different authority than that recited in the grant, and that the grant may be valid, although the authority referred to in it may prohibit it being made, (United States v. Perchman, 7 Peters, 95.)
Nor does it by any means follow, that, because a particular tract of land, or some portion of it, falls within the general limits of a pueblo, this pueblo has such a right or title to this land as to exempt it from the general operation of the granting powers of the Governor and Deputation. The whole course of our reasoning in Hart v. Burnett et al. was opposed to this view of the character of pueblo titles. It is unnecessary to repeat our arguments here.
Supposing this grant to have been made exclusively under the authority conferred by the law of 1824 and the regulations of 1828, it is contended that no presumption of power to grant this land can arise, because the Supreme Court of the United States decided against such presumption, in the case of Cambuston (20 Howard, 63). We do not so understand that decision. It does not pretend to overrule any of the former decisions of that Court with respect to legal presumptions. It simply says, that where the authority to make the grant is expressly conferred, and the terms and conditions expressly prescribed by the law, the Court must look to the law for both the power to make the grant, and for the mode and manner of its exercise. No deviation from the mode and manner prescribed in the law has been suggested, and even if there had been, it may be questioned whether, after final confirmation and patent by the United States, we can inquire into the effect of any such alleged deviation; and if the land belonged to the nation, there could be no question of the power to make the grant. The presumption is, that it did so belong to the nation, until the contrary is shown. This has been attempted, by showing that it was within the legal limits of the pueblo; but, as already remarked, that is not [460]*460sufficient. As shown in Hart v. Burnett et al., the legal title to tliis land may, nevertheless, have remained in the nation, notwithstanding its general dedication or assignment to the pueblo. The only question, then, to be considered is: Was this grant a violation of the general object and uses to which this land was assigned or dedicated ? In other words: Did such assignment or dedication remove it from the exercise of the general authority to grant, conferred by the laws P This cannot be presumed; it must be shown. But how is this shown ? Certainly, not by the grant itself, for such a grant, on the very outskirts of the pueblo lands, and at a considerable distance from the principal settlement, is not prima facie evidence that it was contrary to the general object of building up a town by encouraging settlement and cultivation, but, on the contrary, that it was conducive to that object. Moreover, the Governor, in this case, consulted the authorities, both of the pueblo and of the mission establishment, before making the grant, and neither made any objections. It is true, that objections were made by the authorities of the mission, in 1834, before the organization of the pueblo; but these objections had all been removed when the grant was made and confirmed, in 1839 and 1840. The Governor and Departmental Assembly seem to have acted with a full understanding of all the circumstances of the case, and we are not disposed, without good and substantial reasons, to question the authority and legality of their acts.
But it has been urged, that inasmuch as Governor Figueroa, in his Regulations of Secularization, of August 9th, 1834, specified that the extent of land to be given to one individual, or head of a family, should not exceed four hundred varas square, we must infer that this grant, for a greater amount, was without authority. There is nothing in these regulations to show that any limitation had been placed upon the power of the Governor and Territorial Deputation, with respect to the extent of grants, other than that imposed by the general laws. Moreover, the paragraph quoted refers to “ the common lands of missions,” not of pueblos. That the Territorial Government did, even at that time, grant larger tracts than four hundred varas square of mission lands to individuals and heads of families, is shown by the records of that Government. We find nothing in these regulations to sustain the proposition that the granting power of the Governor and Territorial or Departmental Legislature had been limited to four hundred varas to one individual, or that such limitation applied to the lands of a pueblo.
We have, thus far, considered this question on the supposition that [461]*461the power of the Governor and Deputation or Assembly to make grants was derived solely from the law of 1824 and regulations of 1828. But, as stated in Hart v. Burnett et al., (15 Cal. 549) we are of opinion that their authority over pueblo lands existed prior to their date, and were not changed or repealed by them; and this opinion is not only sustained by the report of the Junta of Colonization, of 1827, but is confirmed by the documentary evidence referred to by counsel in this case.
In conclusion, we reaffirm the proposition announced in Hart v. Burnett et al.
The whole matter of granting lands, within pueblo limits, was subject to the control and direction of the Governor and Territorial Deputation; and the official acts of such officers, within the general scope of their powers, are presumed to have been done by lawful authority.
That the grant, in this case, was within the general scope of their powers cannot, we think, be denied; and the evidence and authorities adduced, show that them act, in making this grant, was done by lawful authority.
The decision of the Court below is, therefore, affirmed.