Santa Rita Land & Mining Co. v. Mercer

• Decision Date: 15 April 1893
• Docket Number: Civil 256
• Citation: 33 P. 944,4 Ariz. 104
• Parties: THE SANTA RITA LAND AND MINING COMPANY, Plaintiff and Appellant, v. T. LILLIE MERCER, Defendant and Appellee
• Court: Arizona Supreme Court

33 P. 944

4 Ariz. 104

THE SANTA RITA LAND AND MINING COMPANY, Plaintiff and Appellant, v. T. LILLIE MERCER, Defendant and Appellee

Civil No. 256

Supreme Court of Arizona

April 15, 1893

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.

Haynes & Mitchell, for Appellant.

One entering upon a portion of a large tract of land under a deed from one having title to the whole, which describes the whole by metes and bounds, may maintain ejectment against a mere intruder who enters upon or who unlawfully withholds possession of any portion of the premises described in such deed, without proof of a pedis possessio of the part withheld. Prescott v. Nevers, 4 Mason, 326, Fed Cas. No. 11,390, 21 Myer's Fed. Dec., sec. 3722; Clark v. Courtney, 5 Pet. 319, 354; Ellicott v Pearl, 10 Pet. 552; Brobst v. Brock, 10 Wall 531; Unger v. Mooney, 63 Cal. 593, 49 Am. Rep. 100. The treaty entered into at the time of the Gadsen Purchase does not provide that any kind of a grant "shall be ratified and confirmed," but it does provide that "property of every kind shall be inviolably respected," except certain kinds of grants. The effect of the general guarantee was before the supreme court of California in an early case, the grant being one of the class excepted in the Gadsen Treaty, and Field, J., uses this language:--

"Under the former government, Sutter was entitled to the possession of his land under his grant; indeed, the conditions of occupation or cultivation attached to it. To avoid a denouncement and a possible forfeiture of his estate, he was required to cultivate or occupy the land, and its possession was his right, which could have been enforced under the Mexican government. It was the right to the use and enjoyment of property, and as such was guaranteed by the stipulation of the treaty. It accompanied his grant, and, like any other right of property, may be enforced in our courts. The grant conveying, as we have seen, the title carries with it the right of use, possession, and enjoyment of the land, until, by the appropriate action of the general government, the estate of the grantee is defeated, admitting that it is competent for the government to provide for defeating it. It follows that the action of ejectment will lie directly upon the grant to recover the land, or any portion thereof, embraced within its boundaries." Ferris v. Coover, 10 Cal. 621. This case is of particular force because the grant was of the usual eleven leagues within much larger boundaries, but the court held, not that the grantee must wait until the exact boundaries of his claim had been ascertained, but that he could maintain ejectment for the larger tract or any part of it until the government had set apart his eleven leagues. Judge Field, speaking of the same grant in a later case, said: "Indeed, it is a matter of surprise that there ever was any serious question as to the right of Sutter (the grantee), or those claiming under him, to recover by virtue of the grant itself." See, also, Cornwall v. Culver, 16 Cal. 426; Mahoney v. Vanwinkle, 21 Cal. 576; Thornton v. Mahoney, 24 Cal. 576; Airhart v. Massieu, 98 U.S. 491.

Hereford & Lovell, for Appellee.

Plaintiff must show a legal title before it can maintain the action. "In an action of ejectment the plaintiff must recover, if at all, upon the strength of his own title; and the weakness of his adversary's title cannot avail him." McNitt v. Turner, 16 Wall. 352; Watts v. Lindsey, 7 Wheat. 158; Marsh v. Brooks, 8 How. 223; Fussell v. Gregg, 113 U.S. 550, 5 S.Ct. 631. "A plaintiff in ejectment, where the defendant is in possession, must show a valid legal title, and not merely an equitable one, to authorize a recovery. Where no such title is shown, defendant's possession is sufficient for his protection. Morehouse v. Phelps, 21 How. 294. Plaintiff has not established a legal or any title at all to the premises in question. Plaintiff claims under a Mexican grant, and alleges in its complaint that the surveyor-general of Arizona in 1880 recommended the same for confirmation.

The claim is therefore pending before Congress for its final determination as to the validity of the grant; and it necessarily follows that until Congress has finally acted, it is uncertain and undetermined whether plaintiff has any title or not. Congress may affirm or reject the claim. Congress constituted itself, in conjunction with the surveyor-general a tribunal to pass upon and finally settle the title to Mexican land grants in this territory. No power or jurisdiction is conferred by the act of 1854 upon any other tribunal or court to determine the validity of such claims. "No jurisdiction over such claims in New Mexico...