Apis v. United States

• Decision Date: 21 February 1898
• Docket Number: 846.
• Citation: 88 F. 931
• Parties: APIS et al. v. UNITED STATES.
• Court: U.S. District Court — Southern District of California

88 F. 931

APIS et al. v. UNITED STATES.

No. 846.

United States District Court, S.D. California.

February 21, 1898

Byron Waters and Max Loewenthal, for plaintiffs.

Frank P. Flint, U.S. Atty., and James R. Finlayson, Asst. U.S Atty.

WELLBORN District Judge.

This action was instituted by plaintiffs, as heirs at law of Jose and Pablo Apis, against the United States, under a special act of congress approved January 28, 1879, as follows 'An act for the adjudication of title to lands claimed by Jose and Pablo Apis, in the state of California.

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the legal representatives, successors or assignees of Jose and Pablo Apis, or either of the, be and they are hereby, permitted to file their claim and title to a certain tract of land in California known as 'La Iolla Rancho,' in and before the United States district court of California; and that said court shall have the same jurisdiction in all things, to be exercised originally to hear and determine upon the said claim and title, to confirm or reject the same, as the several district courts had, under the act of congress of March third, eighteen hundred and fifty-one, and acts amendatory thereunto. And the supreme court of the United States shall have jurisdiction to hear and determine said cause, upon appeal, as decided in said acts: provided, that no lands shall be confirmed to said claimants by said decree to which there are valid claims existing under the pre-emption, homestead or other laws of the United States at the date of the passage of this act; nor shall any decree of confirmation affect any valid adverse right of any other person or persons, or give to the confirmees, or any of them, any claim upon the United States for compensation for any land such confirmees may lose by reason of pre-emption or homestead claims or adverse rights as aforesaid; and that no decree shall be rendered for more than two square leagues: provided, further, that said claimants before filing their claim and title, shall execute releases to any persons who may be in possession of any portion of said lands under valid claims under the pre-emption, homestead or other laws of the United States at the date of the passage of this act, to the portions of said lands so held respectively, and, before rendering a decree in confirmation the said court shall ascertain that said releases have been duly executed.'

20 Stat. 593.

The petition was filed July 22, 1884, and the case transferred from the Northern to the Southern district of California, February 24, 1896. Plaintiffs' claim rests upon a Mexican grant, made November 7, 1845, by Pio Pico, governor of California. The genuineness and due execution of the grant are satisfactorily established. The grant on its fact shows, among other things, that Indians were established on, and occupying, some of the lands at the date of the grant, and provides that the grant is made without prejudice to such Indians. Plaintiffs have not shown, nor undertaken to show, that Indians are not now in the occupancy of some of the lands; nor have they shown, nor undertaken to show, what particular lands Indians do occupy. The evidence, however, does show affirmatively that one, at least, of the Indians who were upon said lands at the date of the grant to plaintiffs, were occupying them as late as two or three years ago; and the map introduced by plaintiffs also shows an Indian village on said lands. That Indians were in possession of some of these lands in 1845 appears, as already stated, on the face of the expediente itself. In his report upon the petition of the claimants, Arguello, the prefect, states that the land is 'occupied with some small summer crops and a few fruit trees that they have there in their style some natives, for which reason, if the petitioners will engage themselves not to molest them, there is no obstacle against granting their petition. ' The concession of Gov. Pico declares 'that the grantees shall not molest the Indians that will have previously established their residence there, and occupied some small tracts of land. ' And the formal grant declares: 'But they shall not in any manner molest the Indians who are at present established in it, and occupying some lands that they can go on cultivating and possessing notwithstanding this grant.'

One of plaintiffs' witnesses, H. G. Stephens, testified that some of the sections claimed by plaintiffs, and which the witness specified, were included within an Indian reservation, created by an executive order, December 27, 1875. That order, so far as material here, was as follows:

'Executive Mansion, December 27th, 1875.

'It is hereby ordered that the following described lands, in the county of San Diego, California, viz. (San Bernardino Base and Meridian), including Rincon, Gapich, and La Jova Potrero:

'T. 10 S., R. 1 E.

'Sections 16, 23, 25, 26, 30, 31, 32, 33, 34, 35, 36, and fractional sections 17, 18, 19, 20, 21, 22, 27, 28, and 29. * * * -- Be, and the same are hereby, withdrawn from sale, and set apart as reservations for the permanent use and occupancy of the Mission Indians, in Lower California. U.S. Grant.'

Although said order was not introduced in evidence, the court takes judicial notice of it. Jenkins v. Collard, 145 U.S. 546, 12 Sup.Ct. 868; Jones v. U.S., 137 U.S. 202, 11 Sup.Ct. 80; Caha v. U.S., 152 U.S. 211, 14 Sup.Ct. 513; Code Civ. Proc. Cal. Sec. 1875, subd. 3. Of the sections reserved by that part of the order above quoted, sections 16 and 23, and parts of sections 17, 21, 22, 25, 26, 27, 34, and 35, are included in the lands claimed by plaintiffs.

On January 12, 1891, congress passed an act entitled 'An act for the relief of the Mission Indians in the state of California' (26 Stat. 712), which contains, among others, the following provisions:

'That immediately after the passage of this act the secretary of the interior shall appoint three disinterested persons as commissioners to arrange a just and satisfactory settlement of the Mission Indians residing in the state of California, upon reservations which shall be secured to them as hereinafter provided.

'Sec. 2. That it shall be the duty of said commissioners to select a reservation for each band or village of the Mission Indians residing within said state, which reservation shall include, as far as practicable, the lands and villages which have been in the actual occupation and possession of said Indians, and which shall be sufficient in extent to meet their just requirements, which selection shall be valid when approved by the president and secretary of the interior. * * * In cases where the Indians are now in occupation of lands within the limits of confirmed private grants, the commissioners shall determine and define the boundaries of such lands, and shall ascertain whether there are vacant public lands in the vicinity to which they may be removed. * * *

'Sec. 3. That the commissioners, upon the completion of their duties, shall report the result to the secretary of the interior, who, if no valid objection exists, shall cause a patent to issue for each of the reservations selected by the commission and approved by him in favor of each band or village of Indians occupying any such reservation, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus patented, subject to the provisions of section four of this act, for the period of twenty-five years, in trust, for the sole use and benefit of the band or village to which it is issued, and that at the expiration of said period the United States will convey the same or the remaining portion not previously patented in severalty by patent to said band or village, discharged of said trust, and free of all charge or incumbrance whatsoever.'

On December 29, 1891, by executive order, and pursuant to the aforesaid act of congress of January 12, 1891, all the sections embraced in the executive order of December 27, 1875, except section 16, were reserved for Mission Indians. These sections, as already stated, are parts of the land claimed by plaintiffs.

On the 13th day of September, 1892, the following patent was issued: 'The United States of America.

'To All to Whom These Presents shall Come-- Greeting:

'Whereas it is provided by the act of congress entitled 'An act for the relief of the Mission Indians in the state of California,' approved January twelfth, Anno Domini one thousand eight hundred and ninety-one (26 Stat. 712), that 'the secretary of the interior shall appoint three disinterested persons as commissioners to arrange a just and satisfactory settlement of the Mission Indians residing in the state of California, upon reservations which shall be secured to them. * * *

"Sec. 2. That it shall be the duty of said commissioners to select a reservation for each band or village of the Mission Indians residing within said state, which reservation shall include, as far as practicable, the lands and villages which have been in the actual occupation and possession of said Indians, and which shall be sufficient in extent to meet their just requirements, which selection shall be valid when approved by the president and secretary of the interior. * * *

"Sec 3. That the commissioners, upon the completion of their duties, shall report the result to the secretary of the interior, who, if no valid objection exists, shall cause a patent to issue for each of the reservations selected by the commission and approved by him in favor of each band or village of Indians occupying any such reservation, which patents shall be of the legal effect, and declare that the United States does and will...