Richardson v. Ainsa

• Decision Date: 27 March 1908
• Docket Number: Civil 1024
• Citation: 11 Ariz. 359,95 P. 103
• Parties: R. R. RICHARDSON et al., Defendants and Appellants, v. SANTIAGO AINSA, Administrator with the Will Annexed of the Estate of FRANK ELY, Deceased, Plaintiff and Appellee
• Court: Arizona Supreme Court

95 P. 103

11 Ariz. 359

R. R. RICHARDSON et al., Defendants and Appellants, v. SANTIAGO AINSA, Administrator with the Will Annexed of the Estate of FRANK ELY, Deceased, Plaintiff and Appellee

Civil No. 1024

Supreme Court of Arizona

March 27, 1908

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Santa Cruz. John H Campbell, Judge. Affirmed.

The facts are stated in the opinion

J. B Wright, for Appellants.

Between the twenty-second day of July, 1854, and the third day of March, 1891 (date of act creating court of private land claims), the only tribunals that had jurisdiction to try title to land grants were the surveyor general of New Mexico and Arizona, and the Congress of the United States. Astiazaran v. Santa Rita Min. Co., 148 U.S. 80, 13 S.Ct 457, 37 L.Ed. 376. This suit was instituted on June 24, 1887 or almost four years prior to the enactment of the court of private land claims act. Therefore, under the decision of Astiazaran v. Santa Rita Mining Co., aforesaid, the court had no jurisdiction, and the supreme court of the United States committed a grave error, through a mistake of fact, when it decided that our lower court had jurisdiction of this identical case, as it was so instituted prior to the passage of the court of private land claims act, while the case which the supreme court followed (Ainsa v. New Mexico & A.R.R., 175 U.S. 76, 20 S.Ct. 28, 44 L.Ed. 78), in deciding this case now at bar, supposing the facts the same, was instituted subsequent to the passage of the court of private land claims act.

The provisions of the court of private land claims act are clear (appellant contends) that in all cases lands theretofore patented by the United States must be eliminated from the grants. The patent to the grant expressly provides that it is made subject to the provisions of said act of Congress. Therefore, the defendant Richardson, as to the two pieces of land originally granted by the United States to Morgan and Ryan, is entitled to judgment. See United States v. Conway, 175 U.S. 60, 20 S.Ct. 13, 44 L.Ed. 72; Real de Dolores v. United States, 175 U.S. 75, 20 S.Ct. 17, 44 L.Ed. 76; Botiller v. Dominquez, 130 U.S. 238, 9 S.Ct. 525, 32 L.Ed. 926; United States v. Martinez, 184 U.S. 441, 22 S.Ct. 422, 46 L.Ed. 632; United States v. Baca, 184 U.S. 653, 22 S.Ct. 541, 46 L.Ed. 733.

S. M. Franklin, for Appellee.

As the supreme court of the United States, in this particular case, has held that the lower court had jurisdiction, that question is forever settled; it is the law of this case and is not subject to consideration or review again. 26 Am. & Eng. Ency. of Law, pp. 184-186, and authorities there cited; Snyder v. Pima County, 6 Ariz. 45, 53 P. 6, 7; United States v. Camou, 184 U.S. 572-577, 22 S.Ct. 505, 46 L.Ed. 694, 697; Illinois ex rel. Hunt v. Illinois Cent. R. Co., 184 U.S. 77-79, 22 S.Ct. 300, 46 L.Ed. 440-449; Sibbald v. United States, 12 Pet. 488, 492, 9 L.Ed. 1167; Thompson v. Maxwell Land Grant & R. Co., 168 U.S. 451, 471, 18 S.Ct. 121, 42 L.Ed. 539, 547.

"The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property." United States v. Percheman, 7 Pet. 86, 87, 8 L.Ed. 604; Ainsa v. N.M. & A.R. Co., 175 U.S. 81-84, 20 S.Ct. 28, 44 L.Ed. 78-84. But the Gadsden treaty by its terms provided that the rights to private property, within the ceded territory, should be protected, or, to quote the United States supreme court on the subject: "This government promised to inviolably respect the property of Mexicans." Ely v. United States, 171 U.S. 239, 18 S.Ct. 840, 43 L.Ed. 149. So that under the law of nations, and under the provisions of the treaty of cession, the rights of Leon Herreras and his grantees to the lands so patented to him by Mexico in 1825 were not altered, changed or diminished when the sovereignty changed to the United States. Dent v. Emmeger, 14 Wall. 308, 314, 20 L.Ed. 838; Trenier v. Stewart, 101 U.S. 797-810, 21 L.Ed. 1021. These patents are void, utterly void, because the United States never had any title to the land. It never had anything to convey. They are also void, for the reason that the officers who executed the patents had no authority to do so. The power given to the president to issue patents to public lands of the United States, under the public land laws, does not authorize him to issue patents to private lands, or any lands except public lands of the United States. Knight v. United Land Assn., 142 U.S. 161, 216, 12 S.Ct. 258, 35 L.Ed. 974; Easton v. Salisbury, 21 How. (U.S.) 426-432, 16 L.Ed. 181, where the court says: "The President of the United States has no right to issue patents for lands, the sale of which is not authorized by law." Under section 8, act of Congress of March 3, 1891, no land could be excluded from the confirmation of a perfect grant when the United States itself brought the claimant involuntarily into court to test the validity of his title, and no land was or could be excluded from the confirmation of the Sonoita grant. Ely's Admr. v. Magee, 34 L.D. 506-517.

OPINION

SLOAN, J.

-- This suit was originally brought in the district court of Pima county by one Frank Ely in 1887, and was entitled "Frank Ely v. New Mexico & Arizona Railroad Company et al." The complaint was in form one to quiet title, the subject matter of the action being a Mexican land grant situated in Santa Cruz county, and known as the "Rancho San Jose de Sonoita." The grant, at the time the suit was brought, was unconfirmed. The defendants, of whom there were a large number, demurred to the complaint upon the ground that it did not state a cause of action, in that it appeared therein that the plaintiff was not in the possession of the grant, and in order to maintain the action was required to show that he was without adequate remedy at law, and to set up grounds for equitable relief. This demurrer was sustained. This court affirmed this ruling of the district court, whereupon the plaintiff appealed to the supreme court of the United States, which reversed the judgment of this court, and remanded the cause for trial. In 1893, Ely having in the meantime died, and Santiago Ainsa, as administrator with the will annexed, having been substituted as plaintiff, the case was tried on its merits, and judgment entered dismissing the case upon the ground that the court had no jurisdiction over the subject matter of the action, for the reason that it appertained to the title of an unconfirmed Mexican land grant. This judgment was affirmed on appeal by this court, but subsequently reversed by the supreme court of the United States. Ainsa v. New Mexico etc. R. Co., 175 U.S. 91, 20 S.Ct. 33, 44 L.Ed. 84. The holding of the supreme court of the United States was that, after the passage of the act of Congress, approved March 3, 1891, chapter 539, 26 Stat. 854 (U.S. Comp. Stats. 1901, p. 765), establishing the court of private land claims, the courts of this territory had jurisdiction, as between private parties, to determine the title of an unconfirmed Mexican grant, which had not been rejected by, or was not pending before, Congress, and which was asserted to be complete and perfect at the date of the cession. It was therefore found that the court had jurisdiction of the case. The complaint was amended by consent on the twenty-seventh day of September, 1907, in the respect that certain defendants were omitted from the suit, among them being the railroad company, and certain additional facts being set up. The essential allegations of this amended complaint are: That the plaintiff, as administrator with the will annexed of the estate of Frank Ely, deceased, is the owner in fee of the grant in question; that at the time of the Gadsden Purchase this grant was complete and perfect; that in 1902 the United States brought suit in the court of private land claims against plaintiff and the defendants in this suit to try the title of said grant; that thereafter said court of private land claims confirmed said grant in plaintiff as a valid, complete, and perfect grant at the date of the cession, and specifically described the boundaries thereof; that thereafter, in pursuance of said decree of confirmation, the United States issued its patent to said grant to the original grantee from the Mexican government, his heirs, successors in interest, and assigns; that the...