Mariano Sena v. United States

• Citation: 47 L.Ed. 787,23 S.Ct. 596,189 U.S. 233
• Decision Date: 06 April 1903
• Docket Number: No. 40,40
• Parties: MARIANO F. SENA, Appt. , v. UNITED STATES
• Court: United States Supreme Court

189 U.S. 233

23 S.Ct. 596

47 L.Ed. 787

MARIANO F. SENA, Appt.,

v UNITED STATES.

No. 40.

Argued January 16, 19, 1903.

Decided April 6, 1903.

This was a petition for the confirmation of a tract of land in the county of Santa F e, New Mexico, known as the Jos e de Leyba grant, which has never been officially surveyed, but is estimated to contain about 18,000 acres.

After filing the petition, it was found there were a number of persons holding portions of the tract sued for under a claim of title adverse to the grant; and, upon motion of the United States, requiring these adverse claimants to be made parties defendant, the original petition was amended, and two of these, the American Turquoise Company and one McNulty, joined with the United States in defending the case.

The court disallowed the claim upon the ground that the evidence did not show a perfect grant, inasmuch as there was no evidence of a compliance with the royal ordinance of 1754, which provided that all grants subsequent to 1700 must be confirmed as a prerequisite to their validity; and that, if it were an imperfect grant, it should, under the act creating the court of private land claims, have been filed within two years from the taking effect of the act, and was therefore barred.

Since the decree of the court of private land claims, certain additional evidence has been discovered, tending to show possession of the land covered by the grant for a long period subsequent thereto, and which, it is now insisted, supplies the defects which caused the rejection of the grant.

Messrs. Frank W. Clancy, and H. S. Clancy for appellant.

Messrs. Matthew G. Reynolds, William H. Pope, Edward L. Bartlett, James W. Vroom, and Solicitor General Richards for appellee.

Mr. Justice Brown delivered the opinion of the court:

The petition of Leyba, upon which the grant was originally made, and which is the material document in this case, and is in the Spanish language, is thus translated in the record:

City of Santa F e, May 24, 1728, before the governor and captain general of this kingdom, there was presented this petition with its contents:

Joseph de Leyba, resident of the city of Santa F e, appear before your excellency in due legal form, and state that, in accordance with the royal ordinance of His Royal Majesty, I enter a piece of land and wood, vacant and unsettled, enough for half a fanega of corn-planting land, somewhat more or less, which is bounded on the east by the San Marcos road; on the south by an arroyo called Cuesta del Oregano; on the west by land of Juan Garcia de las Rivas, and on the north by lands of Captain Sebastian de Vargas.

Therefore, I ask and pray, your excellency be pleased to make me, in the name of His Majesty, a grant for the said piece of land, for myself and my children, heirs and successors, and that the act of royal possession be executed to me, whereby I will receive benefit and favor as well as justice which I seek. And I swear in due form that this, my petition, is not made in malice, and as it may be necessary, etc.

Joseph de Leyba.

Annexed thereto is the grant of the governor and captain general of the province, with the condition that the grantees settle the land within the term prescribed by the royal ordinances, and a direction to the alcalde to put the party in possession.

Following this is the report of the chief alcalde of the city of Santa F e, that, having taken witnesses and 'inspected the lands and woods prayed for by the said petitioner,' he put him in royal possession by performing the customary ceremonies of livery of seisin.

There are two disputed propositions connected with this petition of Leyba's: (1) As to the quantity of land granted; (2) as to its boundaries. It is admitted by both parties that the above translation from the record of the quantity of the land granted 'as a piece of land and wood, vacant and unsettled, enough for half a fanega of cornplanting land, somewhat more or less,' is incorrect, the original Spanish being as follows: 'Registro un pedaso de tierras y monte, yermo y despoblado, que cabe media fanega de maiz de sembradura, poco mas 6 menos.'

The argument of the government is that the quantity covered by the grant was only enough land to plant half a fanega of corn, a little more or less, and that, as a fanega de maiz is a measure of corn which will plant 8.82 acres, half of a fanega would measure 4.41 acres; the government translation being: 'I register a piece of land and woods, uncultivated and unsettled, that will contain half a fanega de maiz de sembradura, a little more or less.' The inference from this is that all that was conveyed was a piece of land that 'will contain' enough for half a fanega of maiz. Claimant's translation, however, of the words que cabe is that it is a tract of land that 'contains' within its outer boundaries half a fanega of corn, that is, of land capable of cultivation.

The probabilities, aside from the fact that the word cabe is a verb of the present tense, favor the construction of the claimant, as the words 'lands and woods' would hardly be used as descriptive of a tract of 4 1/2 acres. In addition to that, however, the description of quantity is wholly inconsistent with the boundaries (hereafter stated), which evidently contemplated a large tract of land, according to the Spanish and Mexican customs of making grants to settlers. Indeed, a grant of 4 1/2 acres of land at a distance from any town, city, or settlement is so rare that the presumptions are all against it. If the boundaries were defined with accuracy, we should have very little difficulty in holding that they would not be controlled by the vague description of 'a parcel of land and woods, uncultivated and unsettled, which includes half a fanega of corn-planting land.'

This is the more apparent by an inspection of the subsequent documents, which include a will of Simon de Leyba, son of the grantee, of the year 1783, giving the boundaries of the tract, and a deed of Salvador Antonio de Leyba, grandson of Jos e, to his son in 1834, also describing the lands by similar boundaries. Indeed, none of the subsequent documents make any reference whatever to the half fanega of corn-planting land. The will also contains a bequest of live stock and farming tools seemingly appurtenant to the ranch and greatly in excess of what would naturally belong to a tract of 4 1/2 acres.

2. The difficulty, however, is with the description of the boundaries themselves, which is: 'On the east by the San Marcos road; on the south by an arroyo called Cuesta del Oregano; on the west by land of Juan Garcia de las Rivas, and on the north by lands of Captain Sebastian de Vargas.' In the will of Simon de Leyba of 1783, the boundaries are the same upon the south and east, and on the north 'the road which goes towards Pecos from the Cerrillos, or lands of Captain Sebastian de Vargas,' and on the west 'with the lands of the old pueblo of the Cienega.' The land is described in substantially the same terms in the deed of 1834. The description of the lands on the east side as bounded by the San Marcos road is clearly defined. The description of the north boundary as the road from Pecos to the Cerrillos is also defined with somewhat less certainty, the lands of Sebastian de Vargas having been located, surveyed, and confirmed several miles to the east of the Leyba grant; but upon the west and south the boundaries, even as sworn to orally by witnesses, are so uncertain as to afford little guide to a surveyor in attempting to locate the tract.

The west boundary, which is described in the grant as 'the lands of Juan Garcia de las Rivas,' is described in the will of 1783 as 'the lands of the old purblo of the Cienega.' While there is some evidence from the archives that the father of Garcia de las Rivas, in 1701, owned a piece of land somewhere west of the Leyba tract, known even then as the old Pueblo of la Cienega, there is nothing to show the east boundary of the pueblo, and consequently the west boundary of the Leyba tract. The south This house long since fell into ruins, and Cuesta del Oregano,' it seems to be impossible to locate with any degree of certainty, though it was probably near the Coyote spring, at which the only house built upon this tract appears to have been located. This house long since fell into ruins, and there is no evidence that it has been occupied since the last owner of the grant, Juan Angel de Leyba, was supposed to have been killed by the Indians in 1839.

The evidence of possession subsequent to the grant does not afford much aid in fixing the boundaries, since the land, like most of that in Spanish-American territories, was not of a kind admitting of a well-defined, actual, and adverse possession, such as that of cultivated land. The most favorable view for petitioner that can be taken of this evidence is that possession of a house or a certain field of arable land may be referable to the entire tract included within the boundaries of the grant; but when the...