H. N. D. Land Co. v. (abeyta

• Decision Date: 18 September 1940
• Docket Number: No. 4548.,4548.
• Parties: H. N. D. LAND CO.v.SUAZO et al. (ABEYTA et al., Interveners.
• Court: New Mexico Supreme Court

44 N.M. 547

105 P.2d 744

H. N. D. LAND CO.

v.SUAZO et al. (ABEYTA et al., Interveners.

No. 4548.

Supreme Court of New Mexico.

Sept. 18, 1940.

Appeal from District Court, Rio Arriba County; Irwin S. Moise, Judge.

Action to quiet title by the H. N. D. Land Company, a corporation, against Juan M. Suazo and others, wherein Medardo Abeyta and others intervened. From judgment for plaintiff, defendants and interveners appeal.

Affirmed.

Regardless of whether original Mexican grant was a private grant or a community grant, confirmatory act of Congress and patent issued in pursuance thereto vested in grantee absolute title to common and unallotted lands. Treaty of Guadalupe Hidalgo, 9 Stat. 922; Act Cong. July 22, 1854, 10 Stat. 308; Act Cong. June 21, 1860, 12 Stat. 71.

Robert Hoath LaFollette, of Albuquerque, for appellants.

Seth & Montgomery and Gilbert & Hamilton, all of Santa Fe, for appelle.

MABRY, Justice.

Complaint was filed seeking to quiet title to certain lands known as El Paso Ranch, located in Rio Arriba county, within the Tierra Amarillo Grant. A large number of persons were made defendants and others became parties by intervention, title to the lands was quieted in plaintiff and defendants and intervenors appeal.

The lands involved in this case are the unallotted, or common lands within the exterior boundaries of the said grant. Several assignments of error are presented. We shall notice only two, either of which is determinative of the appeal.

This grant was made by the Mexican government on July 20th, 1832, “unto Manuel Martinez, together with eight sons and some others who voluntarily desire to accompany him.” The parties do not agree whether this was, at its inception, a community grant, made under provision of the Mexican Colonization Laws of 1824, or a conventional private grant to Manuel Martinez. It becomes unimportant whether the original grant be classified as one or the other under our view of the case, as will be hereinafter explained.

This grant contained 594,515.55 acres, a part of which lay in what is now the state of Colorado. The surveyor-general of New Mexico, acting under authority of the congressional act of July 22, 1854, 10 Stat. 308, reported favorably upon the grant as being made by the Mexican government to the said Manuel Martinez, and congress approved and confirmed the grant to Francisco Martinez, heir of the original grantee, by the act of June 21st 1860, 12 Stat. 71. This grant was surveyed in July, 1876, and thereafter and on February 21, 1881, patent thereto was issued to the said Francisco Martinez. The patent conveying was in the conventional form and like other patents issued under this congressional authority. The patent contained the ordinary and familiar clause found in all other like patents of the time, to which appellants attach much significance. This clause reads: “This patent shall be construed as a quitclaim or relinquishment upon the part of the United States and shall not affect the adverse rights of any person or persons whosoever.”

Appellants also rely upon the language used by the surveyor-general in recommending to Congress the confirmation of the grant, which shows the action of the surveyor-general to have been taken upon the original documents which he had examined. He recites that this case is one “governed by the Treaty of Guadalupe Hidalgo and the decisions of the Supreme court of the United States in the case of J. C. Fremont v. United States, etc. [17 How. 542, 15 L.Ed. 241];” and points out that those originally placed in possession were required to leave the pastures, watering places and roads free “according to the custom existing in every settlement.” He concludes that this is a good and valid grant and should be confirmed to Francisco Martinez, heir of the original and present claimant.

Appellants would impress upon this language of the surveyor-general much force, since it is assumed that he was reciting, for the benefit of Congress, the character of, and limitation upon, the title Congress was being asked to confirm in the applicant. This becomes a rather unimportant matter when Congress has once acted upon the recommendation, as we shall hereafter show.

It is conceded that appellee is, through mesne conveyance under the deed of Francisco Martinez et ux to one Manzanares, of the date of June 21, 1871, successor in title of all title that could be conveyed, except insofar as any rights may have been previously conveyed to appellant's predecessors in interest. All of the common, but none of the allotted, lands are involved in this suit. Appellants contend that such deed conveyed only the 150 varas described, together with a right only in common with all others to use the common land.

Appellee claims that since Congress confirmed this grant to Francisco Martinez on June 21, 1860, his deed thereafter made to Manzanares actually conveyed a fee simple title to all the common lands in question.

Appellants rely upon more than one hundred documents made and executed by Francisco Martinez to their predecessors in title conveying particular tracts of 200 varas each, which said varas remain with the right of “pastures, woods, water, lumbers, watering places, and roads, common and free.” Such deeds declare they are made as “free gift and transfers according to the Articles of the deeded grant.” All of these deeds upon which appellants rely were executed and recorded between the dates of 1861 and 1866. These deeds, say appellants, were made under and in view of the Colonization Laws of the Republic of Mexico, of which this territory of New Mexico was then, and until 1847, a part; and, that the grantor, Martinez, was endeavoring in all these conveyances to observe what he thought was a legal obligation enjoined upon him by the terms of the Mexican grant and the Mexican Laws of Colonization, to see that the Common and unallotted lands remain free for the common rights to water, timber, roads, etc.

A voluminous stipulation, covering all facts in the case and embracing over fifty pages of the transcript, was entered into by the parties. It is therein conceded that, in addition to the question of title by purchase and conveyance, appellee has perfect title to these common lands by adverse possession if, under the law, title by adverse possession could be relied upon as to such lands.

Appellee contends that in any event, it and its predecessors in title are not held to constructive notice of attempted prior conveyances of any of the said common lands by the said Francisco Martinez, because of the form and language of the several deeds, and because of the lack of statutory acknowledgements; it is stipulated that there was no actual, as distinguished from constructive, notice of appellants' claims. All deeds upon which appellant rely are substantially identical as to form and language employed in the alleged acknowledgement.

Appellants contend that they are entitled to rely upon the terms of the original Mexican Grant of 1832 and the rules and regulations of the Mexican Colonization Laws in force at the time, even if not in determining the character of title Francisco Martinez obtained, at least for the purpose of showing his intention, when, thereafter, he granted to appellants' predecessors in title the several tracts of land by the several deeds under which they here claim. The clear intention of the patentee, Martinez, who was grantor of the several tracts, appellants contend, was to reserve to all owners of allotted land within the grant, the free and undisturbed perpetual use of all the common and unallotted lands for the purpose of having for the common use, pasture, water, and road-ways “according to the custom existing in every settlement.”

Whether such intention may be shown in this manner, or whether it can be shown at all under the language of the several deeds and the customs and surrounding circumstances, is one thing, and whether it would afford appellants any support for their position in any event, is another.

Appellee contends that appellants are not entitled to look beyond the congressional act of confirmation and the patent issued, to determine what kind of title passed to the grantee, Manuel Martinez; that adjudication of many like questions by the supreme court of the United States, the United States Circuit Court of Appeals, and our territorial court, has settled the question that all “common” lands of private and community grants made under authority of the Kingdom of Spain or the Republic of Mexico, were reserved to the crown or governmental authority, and that when this domain passed to the United States under the Treaty of Guadalupe Hidalgo, 9 Stat. 922, that the terms of said Treaty and all customs observed, and provisions of Mexican Law as to the use and disposition of the common and unallotted lands, became subservient to the authority of the United States government, which properly chose its own manner and method of establishing, confirming and passing title to such lands. It cites many authorities in support of this view. Act of Congress, July 22, 1854, 10 Stat. 308; Act of Congress, June 21, 1860, 12 Stat. 71; Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80, 13 S.Ct. 457, 37 L.Ed. 376; Botileer v. Dominguez, 130 U.S. 238, 9 S.Ct. 525, 32 L.Ed. 926; Catron v. Laughlin, 11 N.M. 604, 72 P. 26; Chavez v. Chavez de Sanchez, 7 N.M. 58, 32 P. 137; Reilly v. Shipman, 8 Cir., 266 F. 852; Tameling v. United States Freehold & Emigration Co., 93 U.S. 644, 23 L.Ed. 998; United States v. Maxwell Land-Grant Co. (on rehearing), 122 U.S. 365, 7 S.Ct. 1271, 30 L.Ed. 1211; Yeast v. Pru, D.C.N.M., 292 F. 598; Act of Congress, March 2, 1889, 25 Stat. 854; Bond v. Unknown Heirs of Barela, 16 N.M. 660, 120 P. 707, affirmed 229 U.S. 488, 33 S. Ct. 809, 57 L.Ed. 1292; Merrifield v. Buckner, 41 N.M. 442, 70 P.2d 896; Rio Arriba Land & Cattle Co. v. United States, 167 U.S. 298, 17 S.Ct. 875, 42 L.Ed. 175; United...