Mr. Chief Justice Fuller,
after stating the case, delivered the opinion of the court.
Assuming, but without in any manner deciding, that Governor Alencaster had full power to make the grant in any quantity and in any manner he saw proper, we think it clear that he did not, and did not intend to, make a grant of nearly
half a million of acres-to the original applicants, in common, and that the alcalde did not so understand it, and did not attempt to deliver juridical'possession of such á tráct, but only of the various allotments that were made to petitioners in severalty. The petition simply mentioned a tract called the Chama Eiver Canon, and the governor directed the alcalde to report on its extent and boundaries, the proportion of irrigable land, and how many settlers it would accommodate. The alcalde reported that he had personally visited the Chama Eiver Canon and passed over all the land with the greatest care and observation, and he said:
“ The town being placed in the centre, the thirty-one families applying for it may be accommodated and land enough remain for the increase they may have in the way of children and sons in law, and the section of the country is a very de-' sirable one, and the settlers may therefore proceed with their buildings, and for the other two boundaries there is assigned them on the .north and on the south one league for pastures, for on these two sides no injury can result.”
There is nothing in the terms of the grant to indicate that the governor intended to place thirty-one persons in possession, with the exclusive right of property, of a grant twenty-five miles north to south, and thirty miles from east to west. He says: “ In pursuance of the foregoing report, the said alcalde may proceed to the assignment of twenty-six lots of land capable, of being planted with the equivalent of three cuartillas of wheat, one ditto or three almudes of corn, another three of beans, and of having erected on each, of them a small house with a garden.” He directed that Salaza should have two lots, and “the remaining twenty-four to the individuals who, upon report made by the said alcalde, may obtain my decree that they be assigned lands,” etc., and that “to the said parcel of lots held by the twenty-five settlers will be given the name San Joaquin del Eio de. Chama.’” The governor then continued thus:
“ And the said alcalde, having received the said twenty-four titles to settlers, will proceed to deliver and distribute, give possession, and make grant, in the name of .His Majesty, to
the twenty-four settlers aforesaid, and the said Ensign Salazar, being appointed justice and all the foregoing provisions being verified, the granting document will be remitted .to me to be legalized as required, the proper duplicates (testimonios) to be given the parties interested and then the original to be returned, to be duly deposited among the archives of this office.”
Eighteen months thereafter the so-called act of possession was executed on a verbal order of the governor. The alcalde recites:
“
I proceeded with the distribution of the land to them, as appears from the quantities of land they received, noted in the list and certified by me, and into the possession of which I placed them, taking them by the hand and leading each settler over his own piece of land and placing him in possession in the name of the King, whom may God preserve; and they ran joyfully over the land, plucking up weeds and. casting stones and shouting aloud, ‘ Long live the King that protects and helps us! ’ with which they remain in possession, naming the town whose site I pointed out to them, San Joaquin del Rio de Chama, and with -which I have executed the foregoing decree and all of which authenticated with two instrumental witnesses, designating to the settlers as boundaries — on the north, the Ceballa valley; on the south, the Capulín; on the east, the boundaries of the Martinezes; and on the west, the Little White hill
(cejita
blanca), for their pastures and watering places, and with a view to "the coming of other settlers and the increase of families and descendants.”.
The alcalde does not state that he delivered the possession to ariy one individual or to all these individuals in common, of a large tract of land, but possession to each individual of the land to which he was entitled and no 'more, and this was accompanied by a description of the outboundaries within which allotments could be made by the proper governmental officials to persons that might come.in thereafter.
Reference is indeed made to the use óf the lands within the outboundaries for pastures and watering places, but this did not put them out of the class of public lands, and, whatever equities might exist, no title was conveyed.
We have just held in
United States
v.
Sandoval, ante,
278, that as to all unallotted lands within exterior boundaries where towns or communities were sought to be formed, as in this instance, the title remained in the government for such disposition as it might see proper to make.
Moreover, it is clear that the • alcalde had no authority to give possession of 475,000 acres of land to these thirty-one petitioners, even if he could have done so if expressly authorized by direct order of the superior authorities, which is not pretended..
We entirely agree with the holding of the Court of Private Land Claims, as indicated by their decree, that the act of possession, the alcalde’s report and the governor’s decree, taken together, show that the only title which.was passed on or intended to be passed on was to the various allotments which were actually made. Nor can we concur in the view that the result is affected by the proceedings had before the asesor general in 1832. Whatever the judicial authority of this officer, his action did not amount to an adjudication that those who were living on the grant, Or who went there in 1806 or 1808, were the absolute and unconditional owners of 475,000 acres of land, and, indeed, he seems to have been of opinion, not only that the unallotted lands were subject to disposition by the government, but that the proper authority to make such disposition was the territorial deputation.
It is also said that Congress has repeatedly confirmed similar grants, but the fact' that Congress may have thus disposed of the public lands, in its discretion, cannot operate to justify the Court of Private Land Claims in adjudication of a case not coming within the terms of the law of its creation.
The proceedings in the District Court of Rio Arriba County are nothing to the purpose, as the title of this property, under the treaty of Guadalupe Hidalgo and the act of Congress of July 22, 1854, c. 103, 10 Stat. 308, was
sub judioe.
The claimants were then proceeding on their claim before the surveyor general, and Congress, under that act, and an attempt to enforce that title and have it adjudicated by the
local courts, comes within the decision in
Astiazaran
v.
Santa Rita Land & Mining Co.,
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Mr. Chief Justice Fuller,
after stating the case, delivered the opinion of the court.
Assuming, but without in any manner deciding, that Governor Alencaster had full power to make the grant in any quantity and in any manner he saw proper, we think it clear that he did not, and did not intend to, make a grant of nearly
half a million of acres-to the original applicants, in common, and that the alcalde did not so understand it, and did not attempt to deliver juridical'possession of such á tráct, but only of the various allotments that were made to petitioners in severalty. The petition simply mentioned a tract called the Chama Eiver Canon, and the governor directed the alcalde to report on its extent and boundaries, the proportion of irrigable land, and how many settlers it would accommodate. The alcalde reported that he had personally visited the Chama Eiver Canon and passed over all the land with the greatest care and observation, and he said:
“ The town being placed in the centre, the thirty-one families applying for it may be accommodated and land enough remain for the increase they may have in the way of children and sons in law, and the section of the country is a very de-' sirable one, and the settlers may therefore proceed with their buildings, and for the other two boundaries there is assigned them on the .north and on the south one league for pastures, for on these two sides no injury can result.”
There is nothing in the terms of the grant to indicate that the governor intended to place thirty-one persons in possession, with the exclusive right of property, of a grant twenty-five miles north to south, and thirty miles from east to west. He says: “ In pursuance of the foregoing report, the said alcalde may proceed to the assignment of twenty-six lots of land capable, of being planted with the equivalent of three cuartillas of wheat, one ditto or three almudes of corn, another three of beans, and of having erected on each, of them a small house with a garden.” He directed that Salaza should have two lots, and “the remaining twenty-four to the individuals who, upon report made by the said alcalde, may obtain my decree that they be assigned lands,” etc., and that “to the said parcel of lots held by the twenty-five settlers will be given the name San Joaquin del Eio de. Chama.’” The governor then continued thus:
“ And the said alcalde, having received the said twenty-four titles to settlers, will proceed to deliver and distribute, give possession, and make grant, in the name of .His Majesty, to
the twenty-four settlers aforesaid, and the said Ensign Salazar, being appointed justice and all the foregoing provisions being verified, the granting document will be remitted .to me to be legalized as required, the proper duplicates (testimonios) to be given the parties interested and then the original to be returned, to be duly deposited among the archives of this office.”
Eighteen months thereafter the so-called act of possession was executed on a verbal order of the governor. The alcalde recites:
“
I proceeded with the distribution of the land to them, as appears from the quantities of land they received, noted in the list and certified by me, and into the possession of which I placed them, taking them by the hand and leading each settler over his own piece of land and placing him in possession in the name of the King, whom may God preserve; and they ran joyfully over the land, plucking up weeds and. casting stones and shouting aloud, ‘ Long live the King that protects and helps us! ’ with which they remain in possession, naming the town whose site I pointed out to them, San Joaquin del Rio de Chama, and with -which I have executed the foregoing decree and all of which authenticated with two instrumental witnesses, designating to the settlers as boundaries — on the north, the Ceballa valley; on the south, the Capulín; on the east, the boundaries of the Martinezes; and on the west, the Little White hill
(cejita
blanca), for their pastures and watering places, and with a view to "the coming of other settlers and the increase of families and descendants.”.
The alcalde does not state that he delivered the possession to ariy one individual or to all these individuals in common, of a large tract of land, but possession to each individual of the land to which he was entitled and no 'more, and this was accompanied by a description of the outboundaries within which allotments could be made by the proper governmental officials to persons that might come.in thereafter.
Reference is indeed made to the use óf the lands within the outboundaries for pastures and watering places, but this did not put them out of the class of public lands, and, whatever equities might exist, no title was conveyed.
We have just held in
United States
v.
Sandoval, ante,
278, that as to all unallotted lands within exterior boundaries where towns or communities were sought to be formed, as in this instance, the title remained in the government for such disposition as it might see proper to make.
Moreover, it is clear that the • alcalde had no authority to give possession of 475,000 acres of land to these thirty-one petitioners, even if he could have done so if expressly authorized by direct order of the superior authorities, which is not pretended..
We entirely agree with the holding of the Court of Private Land Claims, as indicated by their decree, that the act of possession, the alcalde’s report and the governor’s decree, taken together, show that the only title which.was passed on or intended to be passed on was to the various allotments which were actually made. Nor can we concur in the view that the result is affected by the proceedings had before the asesor general in 1832. Whatever the judicial authority of this officer, his action did not amount to an adjudication that those who were living on the grant, Or who went there in 1806 or 1808, were the absolute and unconditional owners of 475,000 acres of land, and, indeed, he seems to have been of opinion, not only that the unallotted lands were subject to disposition by the government, but that the proper authority to make such disposition was the territorial deputation.
It is also said that Congress has repeatedly confirmed similar grants, but the fact' that Congress may have thus disposed of the public lands, in its discretion, cannot operate to justify the Court of Private Land Claims in adjudication of a case not coming within the terms of the law of its creation.
The proceedings in the District Court of Rio Arriba County are nothing to the purpose, as the title of this property, under the treaty of Guadalupe Hidalgo and the act of Congress of July 22, 1854, c. 103, 10 Stat. 308, was
sub judioe.
The claimants were then proceeding on their claim before the surveyor general, and Congress, under that act, and an attempt to enforce that title and have it adjudicated by the
local courts, comes within the decision in
Astiazaran
v.
Santa Rita Land & Mining Co.,
148 U. S. 80.
In that case it was said by Mr. Justice Gray, delivering the opinion of the court: “Undoubtedly, private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties, belonged to the political department of the government; and Congress might either itself discharge that duty, or delegate it to the judicial department.”
We have frequently reaffirmed the well-settled rule thus announced, and perceive no reason for reviewing it, although counsel suggests that we should do so as bearing on the jurisdiction of the territorial courts and in view of the so-called protocol signed by the commissioners of this country to Mexico, at the time of the exchange of the ratifications of the treaty of Guadalupe Hidalgo. A sufficient account of that diplomatic incident will be found in President Polk’s message of February 8, 1849, Ex. Doc. H. Rep., Second Session, 30th Cong., vol. 5 ; and in Mr. Secretary Bayard’s letter of November 24, 1886, 3 Whart. Int. Dig., (2d ed.,) Appx. § 131, p. 885. We did not feel called upon to discuss it in
Astiazaran's case,
nor do we now in disposing of the case in hand, under the act of March 3, 1891, on this record.
Botiller
v.
Dominguez,
130 U. S. 238.
Furthermore, it is conceded that these records were put in evidence only to show that petitioner had succeeded, in part at least, to the rights of the original grantees.
Decree affirmed.