US SUPREME COURT DECISIONS

This case is governed by Reloj Cattle Co. v. United States, just decided.

The grant was a grant by quantity, and the lawful area was south of the international boundary line, and had been set off to the owners by Mexico.

The right to acquire demasias, or overplus, was not a vested right, and where the conditions were unfulfilled in accordance with the terms of the grant at the time of the cession, claims to demasias cannot be confirmed.

This was a petition filed February 28, 1893, by Ainsa, as administrator, against the United States and one Whitney, for confirmation of the Agua Prieta grant, so called, which he represented he owned by virtue of "a grant title" dated December chanrobles.com-red

Page 184 U. S. 640

28, 1836, made by the Mexican Republic under article 11 of decree No. 70, of August 4, 1824, and a law of the States of Sonora and Sinaloa, No. 30, of May 20, 1825, and other decrees embodied in sections 3, 4, 5, 6, and 7 of chapter 9 of the organic law of the treasury, No. 26, of July 2, 1834, and that regular and lawful proceedings were had under those laws by which the Mexican government, December 28, 1836, sold and conveyed the land to Juan, Rafael, and Ignacio Elias Gonzales in consideration of $142.50 and other valuable considerations. T he proceedings were set out at length in the petition.

The United States answered, denying the ownership and possession of the petitioner and alleging that the grant by the State of Sonora was void; that the grant was located within the Republic of Mexico; that it was confirmed in 1882 to Camou brothers by the Mexican government, and lay south of the boundary line; that the demasias of the grant was also confirmed to Camou brothers, and that a large area remained between the north boundary of the grant and of the demasias and the boundary line, which had since been purchased from Mexico by Camou brothers February 14, 1899, on which day the cause came on for trial, petitioner filed an amended and supplemental petition, averring

"that, prior to the treaty known as the Gadsden Treaty, no resurvey of said grant had ever been applied for or ordered by anyone, and that neither the grantees nor their successors in interest had, prior to said treaty, any knowledge or notice that within the said monuments there was an excess of land over the area stated in said title papers, and petitioner avers that the grantees under said grant were, under the laws of Mexico and the State of Sonora existing at the date of said treaty, and for a long time prior thereto had been, holders in good faith of any such excess or surplus, if any such there is, and entitled to occupy and retain the same as their own, even after such overplus is shown, without other obligation than to pay for the excess according to the quality of the land and the price that governed when it was surveyed and appraised, and petitioner further avers that, if this honorable court should decide that said sale, as recited in said title papers, did not, as petitioner avers it did, convey to the grantees

Page 184 U. S. 641

therein all of the said tract of land to the monuments described in said title papers without further payment therefor, he is ready and willing and now offers to pay to the United States of America any amount that may be found to be due from him for such overplus, and also the costs for ascertaining the same, as soon as the amount of the same and the sum due therefor is ascertained."

Petitioner tendered the sum of $600 in gold in payment of the overplus and $200 in gold for costs, offered to pay whatever might be adjudged due, and prayed

"that, upon said payment, this honorable court decree that petitioner is entitled to and is the owner of all of said tract of land, as originally surveyed, including said overplus or surplus, and that by said decree, he be secured in the possession and ownership of the whole of said tract,"

etc.

The area delineated on petitioner's maps as included in the grant claimed was 163,797.48 acres. The Court of Private Land Claims rejected the claim, and dismissed the petition.

The documents covered three tracts of land called, respectively, Agua Prieta, Naidenibacachi, and Santa Barbara. And it appeared that, on July 21, 1831, Juan, Rafael, and Ignacio Elias Gonzales petitioned the Treasurer General of Sonora, stating that they had cattle and sheep whose numbers they could not feed on the sitios belonging to them, for which reason the stock wandered to the four points of the compass, more particularly toward the waters of the Santa Barbara, Naidenibacachi, Agua Prieta, and Coaguyona, by which they suffered incalculable damage.

They therefore made denouncement of the lands that might be

"found to be public lands within the points and waters aforesaid, which are bounded on the north by the Chiricahua Mountains, on the south by the lands of the Sinaloas, on the east by the Mountains of Coaguyona, and on the west by the lands of the Saus,"

and petitioned that, under the law of May 20, 1825, the denouncement might be admitted, and orders issued for the survey, appraisement, publications, sale, and other necessary proceedings. The petition was referred, testimony taken, and report made as to the necessities of the case, and in October, 1831 at Hermosillo, Treasurer General Mendoza appointed Joaquin chanrobles.com-red

Page 184 U. S. 642

Vincente Elias, resident of San Ignacio, to proceed to take the legal steps, to "the survey of the said public lands," effecting the measurement, appraisement, and publications as is provided, in the decrees No. 30, of May 20, 1825, and No. 175 of November 20, 1830, etc. In August, 1835, Elias proceeded to execute the commission, and on September 28 appointed and qualified his assistant measurers and recorders, and commenced the survey of the Agua Prieta tract. He asked

"the attorney of Messrs. Elias to point out the place they wanted as the center; he did so, fixing a lagoon or pool that is in the middle of a valley called by the same name as the place and the center of all the circumference."

The survey then followed and is given at length, and closed as to the Agua Prieta tract thus:

"The survey being in this manner concluded, and containing in its area, the calculation having been made with entire correctness, six and a half short sitios, the party, who assented to what had been done, was cautioned to inform his parties in due time to have monuments of stone and mortar constructed as is provided."

Then came the survey of the Santa Barbara and Naidenibacachi tracts, and they were found to contain an area of eleven and one-half sitios and twelve and one-half caballerias, which made, with the six and one half sitios, a total of eighteen sitios and twelve and one-half caballerias. Appraisers were then designated, and the six and one-half sitios composing the survey of Agua Prieta were valued, one at sixty dollars, as it had a limited water course, and the others at fifteen dollars each, as they were absolutely dry, and the eleven and one-half sitios and twelve and one-half caballerias were appraised, one at eighty dollars, another at sixty dollars, and the rest at fifteen dollars, making a total of four hundred and thirty-two dollars and fifty cents. Thereupon the lands were published for thirty consecutive days at the values fixed, from June 4 until July 3, 1836. The advertisement exposed for sale eighteen sitios and twelve and one-half caballerias for raising cattle, comprised in the places of Agua Prieta, Naidenibacachi, and Santa Barbara, surveyed in favor of the citizens Elias, and appraised in the sum of four hundred thirty-two dollars and four reals. Three public auctions were then ordered and had on September 15, 16, 17, 1836. The advertisement was as follows: chanrobles.com-red

Page 184 U. S. 643

"There are going to be sold on account of the public treasury of the department eighteen sitios and twelve and one-half caballerias of land for the raising of cattle and horses, comprised in the places called Agua Prieta, Naidenibacachi, and Santa Barbara, situate in the jurisdiction of the presidio of Fronteras, in the district of this capital, surveyed at the request of the citizens Juan, Rafael, and Ignacio Elias Gonzales, of this town, and appraised in the sum of four hundred thirty-two dollars and four reals, as follows: the six and one-half sitios, which compose the survey of Agua Prieta, one in the sum of sixty dollars, on account of having a small spring, and the other five and one-half at the rate of fifteen dollars each, on account of their being absolutely dry, and the other eleven and one-half sitios, together with the twelve and one-half caballerias, of which the other two places consist, one in the sum of eighty dollars, one in the sum of sixty dollars, and the others at fifteen dollars each, all of which sums together go to make up the total amount of four hundred thirty-two dollars and four reals."

The property was sold to the Messrs. Elias at four hundred and thirty-two dollars and four reals, the record stating:

"On these terms this act was concluded, the said eighteen sitios and twelve and one-half caballerias of land which compose the said places of Agua Prieta, Naidenibacachi, and Santa Barbara, situate in the jurisdiction of the presidio of Fronteras, having been publicly and solemnly sold to these interested parties for the said sum of four hundred and thirty-two dollars and fifty cents at which said lands had been appraised."

September 27, the treasurer general directed the parties to be notified to pay the sum in question into the treasury. The title was issued December 28, 1836, declaring that the purchase money for said

"eighteen sitios and twelve and one-half caballerias of land for breeding cattle and horses, which are comprised in the places called Naidenibacachi, Agua Prieta, and Santa Barbara"

had been paid, and granting in the usual terms the said eighteen sitios and twelve and one-half caballerias contained in those places.

On the trial, Ainsa, administrator, introduced in evidence a chanrobles.com-red

Page 184 U. S. 644

number of deeds made by descendants of the original grantees to Ainsa's intestate, ranging in date from December 24, 1886, to January 24, 1893.

The United States introduced a deed of the Eliases dated July 25, 1862, conveying to the Messrs. Camou of Hermosillo, Mexico, by way of conditional sale, all of the property forming the subject matter of this suit, and also certain proceedings of March 17, 1869, and of November 15, 1880, showing the extinguishment of the equity of redemption.

May 31, 1899, petitioner asked for an order making Eduardo Camou party defendant, and presented a deed from Juan Pedro Camou to said Eduardo, quitclaiming the grantor's interest in the Agua Prieta grant, north of the international boundary line.

In addition to the documents, much oral evidence in reference to the surveys was adduced on both sides.

The government introduced a certified copy of the expediente of the denouncement of the demasias of the grant made by Camou brothers before the Mexican tribunals by proceedings initiated April 22, 1880. The lands mentioned were the three places of Agua Prieta, Santa Barbara, and Naidenibacachi, and four others. The denouncement was admitted by the District Judge of Guaymas, May 31, 1880, and a resurvey ordered of the seven tracts, with direction that special care be taken to make the survey of each of the lands separately, and to designate in the minutes of the survey and on the several maps the demasias pertaining to each. The parties in interest were summoned, and were satisfied with the survey made. In 1887, Plutarco Elias, for himself and his mother and brothers, brought an adverse suit against the denouncement on the theory that the Eliases, though not entitled to the cabida legal, were entitled to the demasias, but the contention was rejected. The value of the overplus was fixed, and the judge decreed that the owner was entitled under article 5 of the law of public lands, the law of July 22, 1863, to a reduction of one-half the price as fixed, and it was so liquidated. The final result was the issue, January 30, 1888, of the title to the demasias in favor of Camou. The government also introduced in evidence the expediente chanrobles.com-red

Page 184 U. S. 645

of denouncement of a tract of public land amounting to 16,920 acres, situated between the north boundary of the Agua Prieta grant and the international boundary line. This proceeding was initiated May 4, 1881; the denouncement was admitted and a surveyor appointed, who issued summons to Elias, owner of the ranch of San Pedro, to Camou, owner of the ranches of Agua Prieta and Naidenibacachi, and to Ainsa, representing the lands surveyed to one Rochin, situated east of the Agua Prieta tract. A survey was had and the tract surveyed divided among the three petitioners, Mr. Camou, the owner of the Agua Prieta grant, acting as attorney in fact giving his receipt for the three titles to the property, and describing it as public land. The government also put in evidence the withdrawal by Mr. Camou from the consideration of the surveyor general of Arizona of the grant now in controversy in July, 1880.