David Josiah Brewer

“ It is also undoubtedly true, as disclosed in that case, that, where there is a mere grant of a certain number of acres within specified outboundaries, there may be such indefiniteness as to prevent a court from declaring the true location of the granted lands. And yet it is also true that there may be disclosed by the survey or other proceedings that which will enable a court of equity to determine with reasonable certainty what lands were intended to be granted, and the title to which should be established. ”

“ The cession did not increase rights. That which was beyond challenge before remained so after. That which was subject to challenge before did not become a vested right after. No duty rests on this government to recognize the validity of a grant to any area of greater extent than was recognized by the government of Mexico. ”

“ The changes in the governing power, as well as in the form of government, were so frequent, there is so much indefiniteness and lack of precision in the language of the statutes and ordinances, and the modes of procedure were in so many respects essentially different from those to which we are accustomed, that it is often quite difficult to e termine whether an alleged grant was made by officers who at the time were authorized to act for the government, and was consummated according to the forms of procedure then recognized as essential. ”

“ As shown in the report of the survey in this case, mere estimates were relied upon. Doubtless this carelessness was partly owing to the fact disclosed in Ainsa v. U.S., any overplus above the actual amount paid for still remained the property of the government, payment for which could be compelled of the locator, or, on his failure to make such payment, could be appropriated by any third party desiring to purchase. The fact that during these years no challenge was made of the overplus is not important. ”

“ It would seem not unwarranted and unreasonable to refer to the familiar rule that where an agent, even without express authority, makes a sale of the property of his principal, and the latter, with full knowledge, receives the money paid on account thereof, his retention of the purchase price is equivalent to a ratification of the sale. ”

“ As a rule, congress has not specifically determined the validity of any right or title, but has committed to some judicial tribunal the duty of ascertaining what were good and valid before cession, and provided that, when so determined, they should be recognized and enforced. ”

“ Many things may exist by which the real tract granted can be established. In the case before us, if it be possible to locate the central point from which, according to the report, the survey was made (and we judge from the testimony that it is possible) , the actual grant can be established by reducing each measurement therefrom to such an extent as to make the area that of the tract purchased and paid for. ”

“ The payment was, as appears from the entry in the treasury office, heretofore quoted, of 'one hundred and five dollars, as the principal value for which was auctioned by this intendencia one sitio and three-quarters of another of lands for raising cattle, contained in the place of San Jose de Sonoita.' So, notwithstanding the fact that, as shown by the report of the surveyors, a survey was made, all the proceedings from the commencement to the close contemplated, not the purchase of a given tract of land, but a certain amount of land in the place San Jose de Sonoita. ”

“ The land beyond the reach of these water supplies was deemed of little value, and hence slight attention was paid to it. Every purchase, therefore, must be considered as dominated by this important and single fact. ”

“ It will be unnecessarily limiting its powers to hold that it can act only when the grant to the full outboundaries of the survey is valid, and is powerless when a tract within those outboundaries was granted. ”

“ Of these in their order, though it may be well here to note that the colonization law was not passed until after the sale in controversy had taken place.
On March 18, 1812, in the midst of troublous times in Spain, a constitution (Reyn. Spanish & Mex. Land Laws, p. 79) was adopted, and by it, and the law of the cortes of January 4, 1813 (Id. p. 83) , it is insisted that a different mode of disposing of the public lands was created. ”

“ What powers did the intendant possess at the time this sale is alleged to have taken place? It is conceded by the government that by the ordinance of December 4, 1786 (at which time Mexico was a province of Spain) , the intendants had full authority in reference to the sale of lands. Article 81 of that ordinance (Reyn. Spanish & Mex. Land Laws, p. 60) is as follows:
'Art. 81. ”