The United States, Appellants v. Henry Cambuston

• Citation: 15 L.Ed. 828,20 How. 59,61 U.S. 59
• Parties: THE UNITED STATES, APPELLANTS, v. HENRY CAMBUSTON
• Decision Date: 01 December 1857
• Court: United States Supreme Court

61 U.S. 59

20 How. 59

15 L.Ed. 828

THE UNITED STATES, APPELLANTS, v. HENRY CAMBUSTON.

December Term, 1857

THIS was an appeal from the District Court of the United States for the northern district of California, which affirmed a decree of the land commissioners in favor of a grant of land to Cambuston.

The facts are stated in the opinion of the court.

It was argued by Mr. Black (Attorney General) for the United States, and Mr. J. Mason Campbell for the appellee.

Mr. Black made the following points:

1. Assuming the paper on which the claim is based to be genuine, it is, nevertheless, void and worthless, for want of a petition and inquiry.

2. The grant is inoperative, for want of evidence that it was delivered while the Governor had power to make it.

3. The grant is fraudulent, fictitious, and simulated.

Mr. Campbell's points were the following:

1. That the grant itself is evidence, as of the power of Pico to make it, so also of the observance by him of all the necessary preliminaries, and that there is no proof to the contrary. (United States v. Peralta, 19 How., 347; United States v. Arredondo, 6 Pet., 729, 731; United States v. Delassus, 9 Pet., 134; Minter v. Crommelin, 18 How., 88; Bagnell v. Broderick, 13 Pet., 448.)

2. That the possession of the grant is evidence of its delivery to the grantee by Pico, and the presumption of law is that such delivery was made when it might be lawfully, and that there is no evidence to the contrary.

3. That the absence of an approval by the Departmental Assembly, or of a survey, &c., will not defeat the grant. (United States v. Fremont, 17 How., 560; United States v. Reading, 18 How., 7; United States v. Cruz Cervantes, 18 How., 553; United States v. Vaca, 18 How., 556; United States v. Larkin, 18 How., 563.)

4. As no allegation of fraud was made, either before the commissioners or before the District Court, it cannot be entertained in this court, though, if entertained, the circumstances of the case conclusively show the fairness of the transaction. (United States v. Larkin, 18 How., 557.)

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from a decree of the District Court of the United States for the northern district of California, affirming a decree of the land commissioners.

The claimant below gave in evidence the following document, purporting to be a grant of a large tract of land on the upper waters of the Sacramento river, from a Mexican Governor of California, dated 23d May, 1846:

Pio Pico, Constitutional Governor of the Department of California:

Whereas Mr. Henry Cambuston has petitioned, for his own personal advantage, for a tract of unoccupied land in the valley of the Sacramento, joining on the north to Antonio Osio, on the south Mr. Sutter, on the east Mr. Flugge, and on the southwest the river Sacramento—the investigations being previously made according to the custom, and in conformity with the law of the 18th of August, 1824, and the regulations of the 21st of November, 1828—in virtue of the powers which have been conferred on me, in the name of the Mexican nation, I grant the tract of land expressed, lying out of the boundaries of the before-mentioned landholders, declaring it his estate by the present letters, provided it shall be approved by the extreme Departmental Assembly, and under the following conditions:

1st. He may, without prejudice to the crossings, roads, or attendances, fence it, enjoying it freely and exclusively, devoting it to any use or cultivation, as best may suit his convenience.

2d. When the title shall be confirmed, he shall demand of the respective judge judicial possession of it, by virtue of this despatch, by which the boundaries shall be designated with the necessary landmarks.

3d. The claim of land, for which this grant is made, has an area of eleven square leagues of pasture, if there is that outside of the property of the others, whose boundaries are to be respected; and if there should not be, the grantee shall be satisfied with that which remains.

The judge who gives possession shall cause it to be surveyed according to the ordinance, leaving the residue for the convenient uses of the nation.

Consequently, I command that he hold the present title as true and valid.

It shall be recorded in the respective book, and be delivered to the party interested, for his security and other uses.

Given in the city of Los Angeles, on this common paper, for want of sealed, on the 23d day of May, 1846.

(Signed) PIO PICO.

(Signed) JOSE MATIAS MORENO.

This document was deposited, by the claimant, with Edward Canbey, Assistant Adjustant General of the Army of the United States, on the 10th July, 1850, who at that time had charge at Monterey of the Government archives. These archives have since been transferred to the office of the Surveyor General, kept at San Francisco. There is no evidence in the case that it was ever seen in or out of the possession of the claimant, from its date (23d May, 1846) down to the time of depositing it, as above mentioned, except that derived from one witness, who appears to have been interested in the grant, and whose testimony, therefore, must be laid out of the case. Although the document in terms directs that it shall be recorded in the proper book of records, no record of the same was given in evidence, nor its absence accounted for. It recites, in the usual way, that the claimant had presented to the Governor a petition for a grant of the land, and also that the customary examinations had been made into the circumstances and fitness of making the grant to the petitioner. No petition was produced at the trial, nor any report by any officer as to the reasons and propriety of conceding the tract asked for, nor any evidence accounting for the non-production of either.

The case stands, so far as the claim of title is concerned, upon the naked document itself, purporting to be a donation of the eleven square leagues of land, together with evidence tending to establish its genuineness, and slight proof in respect to the possession of the tract.

The original document was not produced either before the commissioners or the District Court, and the only proof of its genuineness was the testimony of two witnesses who had seen the signatures of Governor Pico and the Secretary Moreno, on file at the Surveyor General's office. One of them (Crosby) says he believes the signature of Pico to be genuine, but has no knowledge of the handwriting of Moreno; the other, (Castro,) that he knows the signatures of both Pico and Moreno, and that they are genuine. There is another witness, (Morenhont,) who says that he had seen Moreno write once, and had corresponded with him; and that, so far as he can judge, it is his genuine signature. This witness, however, cannot be relied on, as he is the person interested in the claim.

The regulations for the colonization of the territories of the Government of Mexico, made 21st November, 1828, in pursuance of the act of the General Congress, August 18,...