Ainsa v. New Mexico & Arizona Railroad Co.

• Decision Date: 29 January 1894
• Docket Number: Civil 376
• Citation: 36 P. 213,4 Ariz. 236
• Parties: SANTIAGO AINSA, Administratrix with the Will Annexed of the Estate of FRANK ELY, Deceased, Plaintiff and Appellant, v. NEW MEXICO AND ARIZONA RAILROAD COMPANY, Defendant and Appellee
• Court: Arizona Supreme Court

36 P. 213

4 Ariz. 236

SANTIAGO AINSA, Administratrix with the Will Annexed of the Estate of FRANK ELY, Deceased, Plaintiff and Appellant, v. NEW MEXICO AND ARIZONA RAILROAD COMPANY, Defendant and Appellee

Civil No. 376

Supreme Court of Arizona

January 29, 1894

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Richard E. Sloan Judge.

Affirmed.

Rochester Ford, and S. M. Franklin, for Appellant.

Under the Gadsden treaty complete title to land needed no legislative confirmation, and the owners of such titles may assert them in the ordinary form of law upon the documents under which they claim. United States v. Pillerin, 13 How. 9; United States v. McCullagh, 13 How. 216; United States v. Roselius, 15 How. 36; Fremont v. United States, 17 How. 553; McGuire v Tyler, 8 Wall. 650; Trenier v. Stewart, 101 U.S. 797.

The grant under which plaintiff claims is a complete and perfect title and vested the fee in the grantee. United States v Turner, 11 How. 663; United States v. Watkins, 97 U.S. 219; Carpentier v. Montgomery, 13 Wall. 480; United States v. Knight's Admr., 1 Black, 227; Phelan v. Poyorena, 74 Cal. 448, 13 P. 681, 16 P. 241; United States v. Pico, 5 Wall. 538; Malarin v. United States, 1 Wall. 282; United States v. Pacheco, 22 How. 225; Cameron v. United States, 148 U.S. 301, 13 S.Ct. 595.

William Herring, for Appellee.

Hawkins, J. Baker, C. J., and Rouse, J., concur.

OPINION

The facts are stated in the opinion.

HAWKINS J.--

This was an action filed in the district court of the first judicial district of the territory of Arizona in and for the county of Pima, on the first day of June, 1892, to quiet the plaintiff's title to the certain tract of land described in the complaint, known as and called the "Rancho San Jose De Sonoita," situate in the Sonoita Valley, in Pima County, Arizona Territory, plaintiff's decedent claiming under a Mexican grant to Don Leon Herreros, dated May 25, 1825. Defendant claims a right of way through said premises by virtue of certain mesne conveyances from certain persons who had settled on portions of the lands conveyed by said grant, claiming same to be public lands of the United States. The cause was submitted to the court below on an agreed statement of facts showing: 1. The copy of the grant papers, and admitting that the same was made, executed, and delivered to the grantee named therein, and by the persons and officials when, where, and by whom it purports to have been signed, made, executed, and delivered; that the plaintiff (appellant) herein is the vendee and assignee of, and has acquired all the right, title, and interest of the original grantee thereof; 2. That claimant under said grant filed on December 29, 1879, under acts of Congress of July 22, 1854, and July 15, 1870, a petition for the confirmation of said grant; that said petition was never acted upon by Congress, and that at the institution of this suit no proceedings for the confirmation of said grant were pending before any surveyor-general of the United States, or before Congress, or before the court of private land claims created by act of Congress of March 3, 1891; 3. That prior to this action certain persons had entered upon land within the limits of plaintiff's grant as pre-emption or homestead settlers, claiming said lands to be public lands of the United States; that thereafter, and before the commencement of this suit, by condemnation proceedings against and sundry mesne conveyances from said persons, the defendant acquired and now claims a right of way through said several tracts of land so settled upon, which right of way is within the limits of the said grant. And the court held that it had no jurisdiction of the subject-matter of said suit, and dismissed plaintiff's complaint.

The record shows that the Mexican grant claimed by plaintiff had not been confirmed by Congress. The question for us to consider seems to be, Can a private claim to land in Arizona under an unconfirmed Mexican land grant be contested in the local courts of justice where no proceedings are pending before Congress, the surveyor-general of the United States or the private land court of March 3, 1891? Astiazaran v. Mining Co., 148 U.S. 80, 13 S.Ct. 457, settles the question that no such action could be maintained if the claim had been reported to Congress by the surveyor-general, if commenced before Congress had acted thereon. But appellant contends that under the Gadsden treaty complete or perfect titles to land needed no legislative confirmation, and the owners of such titles may assert in the ordinary forms of law upon the documents under which they claim, and cites numerous authorities to support said position, all of which seem to us to be under different treaties, and where Congress had given the courts certain jurisdiction. Appellant also contends that the grant under which he claims is a complete and perfect title, and vested the fee in the grantee. Who is to decide this question? Under the treaty, Congress seems to have reserved this right to itself. It provided a mode of settling the property rights of these grants by acts of July 22, 1854, and July 15, 1870, and since by the act of March 3, 1891, (26 Stats. 854). It was the duty of Congress under the treaty to protect these rights. It could do so itself or delegate the power to the judicial...