Steinbach v. Moore

By the Court, Rhodes, J.: The plaintiff offered in evidence the petition of Ridley to Governor Alvarado, in which he solicited that there might be conceded to him in the ex-Mission of Dolores “ a ruined house by the name of Juan Prado (already deceased,) in order that he may repair it, with fifty varas to the east of said house, and four hundred varas between the house and the artilleryman Gomez and the Estero, in order to form his sowing ground,” etc.; and he also offered the concession of the Governor, by which there was conceded to the petitioner the “ house petitioned for in the new pueblo of Dolores, making use at the same time of the four hundred varas of land for cultivation.” The plaintiff admitted that the claim to the land mentioned in the petition had not been presented to the Board of United States Land Commissioners; and on that ground the defendants objected to the admission in evidence of the petition, concession and the accompanying papers, and they were excluded by the Court. This ruling constitutes the principal ground of controversy in the case.

The counsel for the plaintiff contends that the action of the Governor as shown by the petition and accompanying papers offered in evidence amounted to “ a repartiamento—a proceeding in its nature judicial, a partition of common property— copveyed land in severalty in absolute fee to Ridley; was perfect in itself; required no further act to be done on the part of the Government; derived its existence from the right of the pueblo; did not require to be presented to the Board of Land Commissioners, and was not within their jurisdiction.”

Mexican grant in pueblo.

In support of these positions the counsel has filed an elaborate brief—showing very careful research, and remarkable industry, as well as an intimate acquaintance with the law relating to the topics treated of—in order to show the origin, nature, force and effect of a repartiamento ; and for this pur[506]pose lie has traced the origin, history and nature of pueblos, and the nature and extent of their communal property, from a period anterior to the foundation of Rome, down through the laws and customs existing during the successive Governments of Spain and Mexico, to the colonization of California. The purpose of this is to show that the grant of the Governor was only a partition of the common lands of the .pueblo, that the grantee held in severalty, by a perfect title, and under and by title derived from the pueblo, and that therefore the Court was in error in excluding the papers offered in evidence, on the ground that the claim to the land had not been presented to the Board of Land Commissioners according to the eighth section of the Act of Congress of March 3d, 1851. The very able argument of the counsel, supported by such copious citations from the Spanish laws upon the points discussed, would, we have no doubt, have been of service to the Court in considering the case of Leese v. Clark, 18 Cal. 535 and 20 Cal. 387, as well as Brown v. San Francisco, 16 Cal. 451, and Hart v. Burnett, 15 Cal. 530 ; but it comes too late. Mr. Chief Justice Field, in delivering the opinion of the Court in Leese v. Clark, 18 Cal. 570, says: “For these reasons we are of opinion that the Court erred in its construction of the second provision of the fourteenth section, and that the fact that the premises described in the grant of Alvarado and patent of the United States were town lots of a pueblo existing on the 7th of July, 1846, or at the date of the grant, oil the 21st of May, 1839, did not exclude the claim of the grantees from the jurisdiction of the Board, or require the presentation of their claim by the corporate authorities. It is only where lots are held under concessions from such authorities, or belong to the pueblo, that the claim must be presented as required by the fourteenth section. Leese and Vallejo did not hold or claim under any corporation or town, but directly by grant from the Governor, and their claim is not therefore embraced by the provisions of the section in question when that section is properly construed. It was a claim to be presented under the eighth section of the Act; it was so presented, and jurisdiction, in our opinion, was