120 U.S. 605 (1887), Gonzales v. Ross

Citation:120 U.S. 605, 7 S.Ct. 705, 30 L.Ed. 801
Party Name:GONZALES and others v. Ross and another.
Case Date:March 14, 1887
Court:United States Supreme Court

Page 605

120 U.S. 605 (1887)

7 S.Ct. 705, 30 L.Ed. 801

GONZALES and others

v.

Ross and another.

United States Supreme Court.

March 14, 1887

In Error to the Circuit Court of the United States for the Western District of Texas.

COUNSEL

Page 607

[7 S.Ct. 706] H. E. Barnard, for plaintiffs in error.

C. W. Ogden and B. Coopwood, for defendants in error.

OPINION

BRADLEY, J.

This is an action of trespass to try title, brought by the heirs of Juan Gonzales against the International & Great Northern Railroad Company and their tenant in possession, (Ross,) to recover 11 leagues of land situate in Kinney county, Texas, adjoining the Rio Grande. The defendants pleaded not guilty, and title from the sovereignty of the soil. At the trial a jury was waived, and the court found the facts specially, (which are set out in a bill of exceptions,) and rendered judgment for the defendants. The judgment is based upon the failure of the plaintiffs to make out their title; and their failure to make title arose from the court's overruling and rejecting the testimony offered by the plaintiffs as evidence of the extension of title to their ancestor, Juan Gonzales.

The court found and decided that the plaintiffs had shown an application for and concession of 11 leagues of land in the name of Juan Gonzales, in the state of Coahuila and Texas,

Page 608

and gave the purport of the documents showing the same, being an exemplification of the original in the archives of the government of Coahuila, at Saltillo. These documents were in Spanish, accompanied by a verified translation. They were exemplified under date of August 20, 1874, and had been duly recorded in the clerk's office in the records of Kinney county on the eighth of February, 1878, as appeared by the clerk's certificate thereon.

The application of Gonzales, as translated, was as follows, to-wit:

'To his Excel'cy: The citizen Juan Gonzales, before your excel'y, with greatest respect, states that, in accordance with the provisions of the law of colonization of the state, your excel'cy will please grant me the sale of eleven sitios of land of those vacant lands of the department of Monclova and places by me designated, promising to introduce in them the number of stock required by the same law, and paying the value, delivering at once the fourth part of the same, and binding myself to fulfill all requirements of the same law. Praying your excel'y will grant this petition as requested, will receive grace and justice.

JUAN GONZALES.'

The grant, bearing date, Leona Vicairo, October 16, 1832, was attached to the application, and was in the name of the governor in the usual form, and, as translated, was as follows:

'In accordance to article 13 of the new law of colonization enacted by the honorable congress of the state, April 28, 1832, I grant the sale to petitioner of the eleven sitios of land prayed for, at the place designated by him, provided that they shall be all in one tract, and not under any title belonging to any corporation or person whatsoever. The commissioner for the division of lands in the enterprise to which corresponds the one which petitioner solicits, and in his default, or in case there is none, or not being engaged in any other enterprise, the alcalde 1st, or the only one acting of the respective municipality or the nearest one, complying with order given in the matter, will place him in

Page 609

possession of the said sitios, and will extend the corresponding title to the same, first classifying the quality of said lands, so as to be able to state the amount to be paid the state, which payment must first be paid by the interested party in the manner and terms specified in the last part of said article [7 S.Ct. 707] 13, making the payment at once, as provided by this article, in the treasury of the state, receipt of which he will present to the secretary, so that the secretary, upon sight of it, will proceed to give interested party copy of his petition, with which he will go to the commissioner, and have its requirements complied with.

ECA Y MUSQUIZ. [One rubric.]

'SANTIAGO DEL VALLE, Secretary.' [One rubric.]

The court next found as follows: 'Second. That Fortunato Soto was duly appointed by the proper authority of the state of Coahuila and Texas as commissioner to extend titles in the colony contracted for by Juan Carlos Beales and Diego Grant; that his commission of authority was dated March 13, 1834, and was signed by Francisco Vidann'y Vallastenor, the then governor of the state of Coahuila and Texas, and by J. Mijuel Falcon, the then secretary of state of Coahuila and Texas. Third. The plaintiffs are the legal heirs of Juan Gonzales, the beneficiary and grantee of the concession referred to in decision number one, above set forth. Fourth. That defendants are in possession of the land described in plaintiffs' petition. Fifth. That the boundaries of the colony contracted for by Juan Carlos Beales and Diego Grant are shown by the following * * * contract of colonization entered into with the citizen Diego Grant and D'n Juan Carlos Beales as empresarios to introduce 800 families in the vacant lands of the state.'

The contract referred to, between the government of Coahuila and Texas and Juan Carlos Beales and Diego Grant, is then set out in full, the application bearing date October 5, 1832, and the concession, October 9, 1832. It included--First,

Page 610

a grant for the whole territory lying between the Rio Grande and Nueces rivers, and bounded south by the state of Tamaulipas, and north by the twenty-ninth parallel of latitude; secondly, a grant of a tract formerly granted to Woodbury and Vehlein, and subject to their right to colonize 200 families, embracing a territory over 200 miles in length, bounded north by the thirty-second parallel of latitude, south by the old road leading from Rio Grande to Bexar, west by the one hundredth degree of west longitude, and east by other grants in the interior of Texas. The first tract adjoins the south-west corner of the second; and Kinney county, in which the lands in question are situated, lies in the angle between the two tracts, but outside of both. The ninth article of the concession to Beales and Grant has the following provision: 'This colony shall be regulated and their lands divided by a commissioner of the government, who in proper time will be appointed, and will discharge his duties in accordance with the laws and instructions that for said officials have been approved by the honorable congress.'

The bill of exceptions then exhibits two maps given in evidence by the plaintiffs, certified by the secretary of state of the United States, one being a copy taken from Disturnell's map of the United Mexican States, published in 1847, and deposited with the treaty of Guadalupe Hidalgo, 1848; the other showing the boundary line between the United States and Mexico, as laid down in Melish's map, published in 1818, and agreed to in the treaty of January 12, 1828. These maps show that the province of Texas did not then embrace any territory west of the River Nueces.

In view of this evidence, and the findings of the court thereon, the plaintiffs then offered in evidence a paper purporting to be a testimonio, with formal and sufficient proof of its execution, by which testimonio it appeared that in April, 1834, the possessory title of the land in controversy was extended to Juan Gonzales, the ancestor of the plaintiffs, by Fortunato Soto, commissioner for the state in the colony of Rio Grande. This paper was in the Spanish language, and, together with the authentications and translation thereof, had been recorded in the clerk's office of Kinney county on the twenty-first of June,

Page 611

1878, as appears by the clerk's certificate thereon. The following is a copy of the said document as translated, to-wit:

'In the village of Dolores, state of Coahuila, Texas, on the eighteenth day [7 S.Ct. 708] of the month of April, 1834, I, the citizen Fortunato Soto, as commissioner for the supr. government of the state in the colony of the Rio Grande, and in compliance with the contract [celebrated] [entered into] between said government and the citizen Juan Gonzales, and in accordance with the requirements and stipulations which the law provides in this matter, I extend the present title, in the name of the government, and in accordance with the provision in its superior decree of the sixteenth of October, 1832, contained in the aforesaid contract, to the citizen Juan Carlos Beales, as attorney of the said citizen Juan Gonzales, which power of attorney he presented, of the eleven sitios of land to which said contract has reference, which said lands in their actual state I have classed as pasture lands, and which said boundaries are: Commencing from the place where the boundary line of the property of Dona Dolores Soto de Beales forms an angle between south and west a line will be drawn to the south prolonging in the same direction, which will there terminate the said section at a distance of thirteen thousand seven hundred and fifty varas; from whence another line will be drawn in a right angle, which, crossing the arroyo [creek] of Piedra Pinta, will have the length of twenty thousand varas; and from this point another line will be drawn towards the north, parallel with the first, and of the same length, and ends with another line to the east that, crossing the same arroyo, [crrek,] will extend up to the place of begining. So that, in all form and right, he, the said citizen Juan Gonzales, may at all times prove his rights to the said eleven sitios of land, I went with his attorney, citizen Juan Carlos Beales, which, after being surveyed by the surveyor, C. Guill Edgerton, I put him...

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