David Davis

“ It is matter of common knowledge, that when this grant was issued, California was a sparsely settled country, without fences, with no obstruction to prevent the herds and flocks from roaming in an untamed state over its whole surface. All the inhabitants without grants might be said to be tenants-at-will of the government lands, and the government officers would have had no more thought of disturbing them in the possession of the ungranted portions, than our government now thinks of expelling pre-emptors from the public lands. ”

“ Conceding that the Mexican authorities granted to the De Haros only a right to possess and occupy this land, is not this right to possess and occupy still subsisting so long as the event limiting that right has not happened, and the conditions for the violation of which that right was to be forfeited, have all been complied with?
We say that it is; and that, until such event happens, or the conditions are violated, such a grant vests in a grantee an estate;-whether called an estate in fee, or a lease, or a license, makes no difference. ”

“ It surely cannot need more evidence to demonstrate that the Mexican officials intended the espediente to be what it is, a mere license to occupy, not permanently, but 'in the meantime,' until the ejidos were measured. It is impossible to divest the mind of the conviction, that Micheltorena and Jimeno, either believed they had not the power to grant the potrero, or, if they had, the circumstances of the mission forbade its exercise, and conceded a permissive occupation, not of right, but by way of grace and favor. ”

“ Certainly it would never have occurred to any Mexican citizen to ask, nor to any governor to grant, a right to use lands for so long as the governor should so will. Even in the most populous countries it would hardly suggest itself to any private person to put a license to occupy land in writing, provided such license were revocable at will. Such a license would naturally be granted by word of mouth or by occupation without objection. ”

“ The Mission of San Francisco no longer holds property of any kind, and consequently the Potrero (or inclosed place for keeping horses) in request in lying unoccupied, as the soliciting parties show by means of a report proceeding from the respective judge; and inasmuch as there are to be assigned to said establishment, its corporation or common land (ejidos [1] ) , I am of opinion that in the meanwhile the parties might occupy the plot of land, by virtue of a provisional license of your Excellency, because no prejudice is caused thereby to the community, to any private individual. ”

“ But, it is said, the occupation thus permitted could ripen into a grant in fee, or some lesser estate, in case the potrero was not included within the admeasurement of the ejidos. Not so, however, for there are in the title-papers no words granting the tract of land, either absolutely or on condition, provisionally or otherwise; nor any words by which any estate or interest in it can be raised by implication. The power conferred, resembles a grant in no particular, but is a bare, naked license, and to be governed by the rules of law applicable to such a power. ”

“ There are also other incidents attaching to a license. It is an authority to do a lawful act, which, without it, would be unlawful, and while it remains unrevoked is a justification for the acts which it authorizes to be done. It ceases with the death of either party, and cannot be transferred or alienated by the licensee, because it is a personal matter, and is limited to the original parties to it. A sale of the lands by the owner instantly works its revocation, and in no sense is it property descendible to heirs. ”

“ Under the Mexican system, the petitioner for vacant lands, who complied in all respects with the colonization law, had a legal right to a grant as much as a pre-emptioner under the American law has a right to a patent. Governor Micheltorena, recognizing this right on the part of the petitioners, refers the matter to the secretary of state, for the purpose of ascertaining if any reasons there were why the De Haros should not receive a full title in fee to this land, as they had asked. ”

“ The significant fact appearing on the face of this document, is, that it ignores the very matter for which the De Haros petitioned. They solicited a grant of the land pertaining to the potrero, but Jimeno, among the most intelligent of Mexican officials, knew, if the mission was secularized, there would remain an incipient pueblo, which might embrace for its common lands, the piece of ground asked for; and, therefore, reported that the grant of it could not be safely conceded, as it might prejudice the rights of the community. ”

“ Testing this case by these rules of law, is not the license given by Micheltorena ended? The De Haros died in 1846, while the Mexican government owned California, and with their death the license terminated. As long as they were in full life they had a valid authority to enter upon the potrero and pasture their cattle, but, as the privilege was a personal one, it ceased when they died, and did not extend to their heirs. The continued possession by the father, and those under him, estops no one certainly not a sovereign power like Mexico or the United States. ”

“ How could a title be security to them, unless it proved on its face that rights were thereby conveyed; that if they violate these conditions they will lose their rights to this provisional concession? What possible meaning can be given to a provision like this on the theory of opposing counsel that either this grant conveyed no rights, or else that the rights which it did convey were revocable at the will of the grantor? Is it not absurd to speak of losing rights in consequence of the violation of conditions, when there are no rights to lose ”

“ The secretary continues, 'because no prejudice is [would be] caused thereby to the community or to any private individual.'
Take, now, the objection of the secretary to the full granting of this land with his recommendation to the governor, and is it not clear that the secretary said, in substance, to the governor: 'These are vacant and unclaimed lands; but there is a possibility that a certain public corporation may at some day require them for public purposes. Were it not for this possibility, I would recommend that a grant in fee absolute be made to the petitioners. ”

“ We go farther, and assert that, whereas, under the Mexican system, in pastoral countries it was deemed of paramount interest to the public that ejidos, or pleasure lands, should be reserved for public use, under the American system the demands of commerce require that lands in the vicinity of a seaport be appropriated to private business and held in private proprietorship. ”

“ He promised nothing; he did not say what he would do or not do when the common lands were measured, but told the De Haros, meanwhile, until they are measured, you can occupy the potrero for a pasture-ground for your cattle. This was not a contract on consideration that they and their heirs should have the right of occupancy until the happening of this event. It might never happen; and what was intended as a mere license would be thus converted into a grant. ”

“ When this claim was originally pressed for confirmation, it was on title-papers conveying a grant of the land, which are now withdrawn as being forgeries. If the espediente on which the claim is now rested carried the title to the property, why substitute forged grants? A crime is never committed without an adequate motive, and it is clear that, in the opinion of the party who did it, the genuine espediente fell short of a concession of the potrero in full property. ”

“ The province of these archives was to inform the world that certain lands had already been granted, and by consequence were no longer open to settlement, and no longer subject to the disposition of the government. ”

“ It further states that the petitioners repaired the old wall which had been erected around this tract by the priests; that they placed their cattle and horses thereon, which were regularly attended by their herdsman and themselves, who resided at the Mission. In construing the provisional grant in this case, the court states that it is a permission given [to the grantees] to occupy until an assignment of the land to the pueblo is effected. ”

“ The petition, the reports, and the laws, are all made a part of this decree by incorporation, and this decree must be read by their light. Now, is it to be supposed that either the governor or the secretary thought that these lands should forever be taken out of the market and excluded from the beneficial purposes of agriculture and commerce, simply because they might be possibility be afterwards wanted for a use for which they were then not necessary at all ”