United States v. Cleveland & C. Cattle Co.

• Decision Date: 09 January 1888
• Citation: 33 F. 323
• Parties: UNITED STATES v. CLEVELAND & COLO. CATTLE CO.
• Court: U.S. District Court — District of Colorado

33 F. 323

UNITED STATES v. CLEVELAND & COLO. CATTLE CO.

United States Circuit Court, D. Colorado.

January 9, 1888

H. W Hobson, Dist. Atty., for the Government.

L. S Dixon and J. W. Vroom, for defendant.

BREWER J.

This case is before me now on a motion to dissolve a preliminary injunction. The bill was filed in June, 1886, and upon notice, and after hearing, the preliminary injunction was granted by Judge HALLETT. In the order granting such injunction, no leave was reserved to move for a dissolution after the filing of the answer; and when this motion was brought on for hearing my impressions were very strong that it was not good practice to entertain such motion, and I suggested to counsel on the argument whether, when an injunction had been granted upon notice, and after hearing the true rule was not to let that preliminary injunction stand until the final hearing of the case, unless new matters had intervened since the granting of the injunction which compelled its dissolution, or unless it appeared that, under no circumstances, could an injunction issue upon final hearing. So strong were my impressions in this direction, that I was tempted to overrule the motion at the conclusion of the argument. I now regret that I did not act upon these impressions, for it would have speeded the case. Of course, the decision of a motion is not res adjudicata; the matter may be again called to the attention of the court, so that it cannot be said that there is no foundation for this motion; and yet I cannot but think that such motions should not be encouraged, and that the better practice is that, when a preliminary injunction has been granted after a hearing of both parties, it should stand until the final disposition of the case, unless leave be given to press a motion for a dissolution after the filing of the answer; for, if under the bill a final injunction is possible, the status of the parties might be shifted backwards and forwards by, first, a preliminary injunction, then its dissolution, and, afterwards, by a final injunction. Of course, what I have said does not apply to a case where a preliminary injunction has been granted without notice, or to cases in which some new matters have intervened which so change the situation of the parties as to compel the discontinuance of the injunction, nor to a case in which it is evidence that under no circumstances can any injunction go as the result of the final hearing. On the argument of this motion to dissolve, the entire merits of the controversy were discussed, and, while some of the questions may properly be passed to the final hearing, yet some matters ought to be decided, in view of the elaborate arguments made by counsel, and in order to advance the case as rapidly and as far as possible toward its final determination.

This bill is filed by the government to enjoin the defendant from fencing in a large portion of what is commonly known as the 'Las Animas Grant.' That a bill of this nature can be sustained must be conceded as settled, for this circuit at least, since the decision of Mr. Justice MILLER in the case of U.S. v.Ranch Co., 25 F. 465, 26 F. 218, a case pending, in the circuit court of Nebraska, and decided about two years ago. It becomes necessary, therefore, to trace the history of this grant in order to determine the condition of the title and the rights of the respective parties. The grant is within the territory ceded by the government of Mexico to the United States by the treaty of Guadaloupe hidalgo, of date February 2, 1848, (9 U.S.St.at Large, 922,) by which treaty the fee of the soil passed to the United States government, subject to existing property rights, and by this is meant, of course, all vested rights, whether legal or equitable. An attempt was made by the Mexican government to have incorporated into the treaty a stipulation in respect to the subsequent completion and perfection of inchoate rights, but the United States refused to accept such stipulation, and the clause was stricken out, leaving the transfer of the fee subject simply to existing and vested rights of property, legal or equitable. The clauses of the treaty referring to these matters are the following:

'Art. 8. Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected on this account to any contribution, tax, or charge whatever. In the same territories, property of every kind, of Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy, with respect to it, guaranties equally ample as if the same belonged to citizens of the United States.

'Art.9. The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the constitution; and, in the mean time, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.'

Prior to the war with Mexico, and to this treaty cession, and on December 8, 1843, Vigil and St. Vrain petitioned for a grant. The petition and grant are in these words:

SANTA FE, December 8, 1843.

'Most Excellent Governor: Cornelio Vigil, a resident of the demarcation of Taos, and Geran St. Vrain, a naturalized citizen and resident of the same, appear before your excellency in the manner and form best required by law, and convenient to us, and say that, desiring to encourage the agriculture of the country to such a degree as to establish its flourishing condition, and finding ourselves with but little land to accomplish the object, we have examined and registered with great care the land embraced within the Huerfano, Pisipa, and Cucharas rivers to their junction with the Arkansas and Animas, and finding sufficient fertile land for cultivation, an abundance of pasture, and water, and all that is required for a flourishing establishment, and for raising cattle and sheep, and being satisfied therewith, and certain that it is public land, we have not hesitated to apply to your excellency, praying you to be pleased, by an act of justice, to grant to each one of us a tract of land in the above-mentioned locality, protesting that in the coming spring we will commence operations which will be continued until the colony shall be established and settled, provided your excellency be pleased to grant it to us. We so request, and swear we do not act in malice.

CORNELIO VIGIL. 'GERAN ST.VRAIN.' 'SANTA FE, December 9, 1843.

'To the justice of the peace of the proper jurisdiction, who will give the possession referred to by the petitioners, as this government desires to encourage agriculture and the arts.

ARMIJO.

'DONACIANO VIGIL, Secretary.'

On the second day of January, 1844, the justice of the peach gave juridical possession of the entire tract within the boundaries named in the petition. His certificate is in this language:

'In this district of Taos, on the second day of January, one thousand eight hundred and forty-four, I, Citizen Miguel Sanchez, justice of the peace of this demarcation, by virtue of what is ordered in the foregoing decree, proceeded to the land referred to by Citizen Cornelio Vigil and Seren St. Vrain, in the foregoing petition; and being on the spot, with those in my attendance, and instrumental witnesses appointed for the purpose, we proceeded to the establishment of the moundo (mahaneras,) as described in said foregoing petition, and corresponding with the plat line, (north of the lands of Beaubien and Miranda.) At one league east of the Animas river a mound was erected; thence, following in a direct line to the Arkansas river, one league below the junction of the Animas and the Arkansas, the second mound was erected; and, following up the Arkansas to one and one-half leagues below the junction of the San Carlos river, the third mound was erected; thence, following the direct line to the south until it reached the foot of the first mountain, two leagues west of the Huerfano river, the fourth mound was erected; and, continuing in a direct line to the top of the mountain, to the source of the aforementioned Huerfano, the fifth mound was erected; and, following the summit of said mountain in an easterly direction until it intersects the line of the lands of Miranda and Beaubien, the sixth mound was erected; from thence, following the dividing line of the lands of Beaubien and Miranda, in an easterly direction, I came to the first mount which was erected. Closing here the boundaries of this grant, and having recorded the same, I took them by the hand, and walked with them, and caused them to throw earth, and pull up weeds, and make other demonstrations of possession, with which the ceremony was concluded; the boundaries being established without any claim being presented injuring any third party; as I, the aforementioned justice, in the name of the sovereignty of the Mexican nation, (which may God preserve,) gave to the

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