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UNITED STATES V. ELDER, 177 U. S. 104 (1900)
U.S. Supreme Court
United States v. Elder, 177 U.S. 104 (1900)
United States v. Elder
Argued October 13, 16, 1899
Decided March 26, 1900
177 U.S. 104
United States v. Ortiz, 176 U. S. 422, affirmed and followed to the point that, in order to justify the confirmation of a claim under an alleged Mexican grant, under the Act of March 3, 1891, c. 539, 26 Stat. 854, it is essential that the claimants establish, by a preponderance of proof, the validity of their asserted title.
The mere approval by the governor, endorsed on a petition presented to him for a grant, before a reference to ascertain the existence of the prerequisites to a grant, is not the equivalent of a grant.
In order to vest an applicant under the regulations of 1828 with title in fee to public land, it was necessary that the grant should be evidenced by an act of the governor, clearly and unequivocally conveying the land intended to be granted, and a public record in some form was required to be made of the grant, and the action of the legislative body could not lawfully be invoked for approval of a grant unless the expediente evidenced action by the.governor, unambiguous in terms, as well as regular in character.
The mere endorsement by a Mexican governor of action on the petition, before any of the prerequisite steps mentioned in the regulations of 1828 had been taken to determine whether, as to the land and the applicants, the power to grant might be exercised was a mere reference by the governor to ascertain the preliminary facts required to justify an approval of an application, and had no force and effect as an actual grant of title to the land petitioned for.
Although the documents in question in this case, executed by the prefect and the justice of the peace, fairly import that those officials assumed authority to grant something as respected the land in question, they did not, in 1845, possess power to grant a title to public lands.
The alleged Mexican grant which forms the subject of this controversy relates to a tract of land situate in the County of
Taos, New Mexico, embraced in what is designated as the Cebolla grant. The asserted grant was presented in 1872 for confirmation to the Surveyor General of New Mexico, under the Act of July 2, 1854, by John T. Graham and William Blackmore, who averred that they possessed a perfect title to the land covered by the grant, by reason of mesne conveyances from the original grantees. This claim so presented was favorably reported to Congress, but it does not appear that any action was taken thereon. Upon a survey made by the direction of the General Land Office in November, 1877, the area embraced in the alleged grant was declared to consist of 17,159.57 acres. The controversy now here for review was commenced by proceedings instituted in the Court of Private Land Claims to obtain a confirmation of this alleged grant. The petition to that end was filed on February 18, 1893, on behalf of the present appellees, who asserted that they were the owners of the Cebolla tract by purchase from the heirs and assigns of the original grantees. The alleged grant was asserted to have been made on December 31, 1845, by Manuel Armijo, Governor of New Mexico, and the papers claimed to evidence such grant, as translated, are reproduced in the margin. [Footnote 1]
It was averred in the petition with respect to the survey above referred to, that it was not made in accordance with the boundaries
set forth in the grant, but was "of a different portion of land, a part or all of which is included in the said grant." The
Court of Private Land Claims entered a decree (Murray, J., dissenting) defining the boundaries of the tract covered by the claim as allowed and confirming title thereto in "the heirs and assigns of said five original grantees and to their heirs and assigns." The United States thereupon appealed to this Court.
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