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was to have the loan of horses, mules, cattle, farming utensils, &c. The streets, squares, municipal and common lands of the pueblos, and the solares or house-lots, and suertes of sowing lands of the pobladores, were to be designated by the government.
Discharged soldiers were to receive building and planting lots, the same as the colonists. All the pobladores were to possess the right of pasturing their cattle and of cutting wood on the common lands of the jueblos. Certain conditions were to be attached to these grants of land, such as the building of houses, planting of trees, &c., within a specified pe iod of time.-(Vide appendix No. 2.)
C'hese regulations, with slight modifications, have formed the basis of the laws which have ever since governed the pueblos of California.
On the 22d of October, 1791, orders were sent to Governor Romen autherizing the captains of the presidios to grant and distribute house-lots and lands to the soldiers and citizens within the extent of two common leagues in every direction from the centre of each presidio square.—(Vide appendix No. 3.)
Immediately after the independence of Mexico, and during the government of Iturbide, a system of laws were established for colonization, dated April 11, 1823; but as these laws were suspended almost immediately afterwards, it is believed no grants of land were made under them in Upper California. On the 18th of August, 1824, the constituent congress passed a decree for the colonization of the territories of the republic, which decree was limited and defined by a series of regulations, dated Nov. 21, 1828.
By these laws and regulations the governors (gefes politicos) of territories were authorized to grant (with certain specified exceptions) vacant lands to contractors, (empressarios,) heads of families, and private persons. The grants to empressarios for colonies or towns were not to be valid till approved by the supreme government.
No grants were made to individuals or single families to be held as definitively valid, till approved by the territorial deputation; and if the territorial deputation should not give its approval, the governor was to refer the documents to the supreme government for its action.
But, without the previous approval of the supreme government, no territorial governor could make grants of land within ten leagues of the seacoast, nor within twenty leagues of the boundaries of any foreign power. Moreover, the general government reserved to itself the right to make use of any portion of these lands for the purpose of constructing warehouses, arsenals, or other public edifices which it might deem expedient for the defence or security of the nation. The maximum and minimum amounts of land which could be given to any one person were specified, and also the circumstances under which the grant should become void.-(Vide appendix Nos. 4 and 5.)
These laws and regulations are believed to be still in force, as they are referred to in the titles to lands granted in Upper California as late as July 8, 1846. The usual form of a confirmation of a grant of land by the territorial legislature is as follows: “The grant made to N, of the place called in the jurisdiction of —, comprising - sitios of large catile, (square leagues,) is approved according to the title given to him on the
day of —,184—, in conformity with the law of the 18th of August, 1824, and the 5th article of the regulations of the 21st of November, 1828.
“A. B., President of the Departmental Ass. mbly. "C. D., Secretary.”
The restriction contained in paragraph 4 of the decree of August 18, 1824, is also fully recognised in the proceedings of the territorial legislature. For example: in the instructions of the territorial junta to the dep. uty from Upper California to the general congress of Mexico, dated July 25, 1836, (paragraph 4,) it is expressly conceded that the general government of Mexico alone had power to dispose of islands on the coast of California; and (paragraph 19) the deputy is directed to solicit from the general government an absolute confirmation of the grants of lands made in California under the colonization decree of August 18, 1824, and the reg. ulations of November 21, 1828, releasing the proprietors from the restrictions contained in these laws and regulations.
Again: in 1840, the territorial deputation made a representation to the general government, asking that the law of colonization be extended so as to include lands lying within ten leagues of the coast of California, and that the grants already made by the territorial government within these limits be confirmed by Mexico. It is believed, however, that the general government never acted on this representation, and that the aforementioned laws and regulations remain unchanged.
The restriction contained in paragraph 7 of the regulations of November 21, 1828, is also recognised in the proceedings of the territorial legislature, and has been announced and enforced by the supreme government. In 1845, when the supreme government confirmed the grant made to Don Estenare Smith of lands situated at and near the port of Bodega, orders were issued that no more grants of that kind be made by the territorial government, without obtaining the necessary authority from the supreme government of Mexico.—(Vide Governor Alvarado's certificate, appendix No. 6.)
Again this restriction is alluded to and recognised in a letter from the Department of Relations, dated Mexico, August 11, 1845, and signed Louis G. Cuenas; and in a letter from the Minister of Foreign Affairs, Government, and Policy, dated Mexico, January 19, 1846, and signed Costillo Lauras—both of these letters having reference to the Macnamara colonization grant-and even in the grant itself, which was given by Governor Pico, and dated July 4, 1846, it is expressly stated that the approval of the supreme government is necessary to make it valid.-(Vide Senate Doc. No. 75, 1st session 30th Congress.)
The territorial governments were originally prohibited from making grants of public lands of the islands of the coast, as well as of those in the bays, without the consent or approbation of the general government of Mexico; but the consent of the supreme executive power was given in 1838 to make grants of islands on the coast of California. The islands in the bays, however, are not included in this permission.—(Vide appendix
The general government of Mexico has also reserved to itself the right to take, and use for the purpose of fortifications or arsenals, lands belonging to any State, by indemnifying the State for the value of the lands so taken. This law was passed by Congress the 6th of April, 1830, and is in the following words:
"Art. 4. The Executive may take such lands as it considers useful for fortifications or arsenals, and for the new colonies, indemnifying the States for the value thereof out of the amount due by them (the different States) to the federation.”
This same law repealed the 7th article of the law of August 18, 1824, in the following words:
“Art. 11. In virtue of the power which the general Congress reserved to itself in the 7th article of the law of the 18th of August, 1824, foreigners belonging to nations whose possessions are bounded by the States and territories of the federation are prohibited from colonizing such adjoining lands; consequently, all contracts opposed to this law which may not as yet have been fulfilled shall be suspended.”
A large number of land titles in California are very indefinite with respect to boundaries, the grants being for so many “sitios,” « creaderos,' &c., lying between certain hills, streams, &c., as shown by rough sketches attached to the petitions. These sketches frequently contain double the amount of land included in the grants; and even now very few of these grants have been surveyed or iheir boundaries definitely fixed. The usual form of these titles is shown in appendix No. 8.
Some of the land titles given by the California government contain conditions respecting their sale, &c., which are not only onerous to the holders, but contrary to the spirit of our laws. These onerous conditions should be removed by act of Congress. A number of the grants of land made by the governors of California have never been confirmed by the territorial legislature. In some cases that body has positively refused its approbation; in other cases it has merely declined to act until furnished with certain information respecting the amount asked for, its boundaries, &c.; in others again, the petition, though before the legislature, was not reached previous to its final adjournment in July, 1846; and it is probable that some of these titles through carelessness were never submitted to that body for approval. Again: it has been alleged, by very respectable authority, that certain titles to land were given by Governor Pico after the United States had taken possession of the country, and made to bear dates prior to the 7th of July, 1846. These grants have of course never been confirmed by the territorial legislature, for that body adjourned on the 8th of July, the day after our flag was raised at Monterey; nor have they been recorded in any book of records among the government archives, although it is said they purport to be so recorded. In settling land titles in this country, a broad distinction should be made between titles of this kind and those which were given in good faith by the California governors previous to our taking possession of this country, but which have failed to receive the requisite confirmation for want of action on the part of the territorial legislature. In appendix No. 9 I have given a description of the different land measures adopted by the Mexican government. The description and table are translated from the “Ordenanzas de Tierras y Aguas," by Mariaus Galvan, edition of 1844.
Where grants of land have been made by the territorial government for towns, (fundos legal para pueblos,) in conformity to the provisions of artieles 10, 11, 12, and 13 of the regulations of November 21, 1828, the land lying within the limits of such grants may be disposed of by the founders or municipal authorities, agreeably to the general laws regulating the government of such towns. The spirit of these laws in California may be judged of by the following extracts from an act of the territorial deputation, dated August 6, 1834:
“ART. 1. The ayuntamientos will make application through the ordi
nary channels, requesting lands to be assigned to each pueblo for egido (common lands,) and proprios (municipal lands.)
“Art. 2. The lands assigned to each pueblo for proprios shall be sub divided into middling-sized and small portions, and may be rented out o given at public auction, subject to an emphitennic rent or tax-en sens enfitentico. The present possessors of lands belonging to the proprio will pay an annual tax, to be imposed by the ayuntansiento, the opinio of three intelligent men of honor being first taken.
“Art. 3. For the grant of a household lot for building on, the partie interested shall pay six dollars, and two rials for each lot of one hundre varas square, and in the same manner for a larger or smaller quantity, a the rate of two rials for each vara front.'
All grants, however, of land lying within ten leagues of the coast whether made for towns or for any other purpose, must be approved by the supreme executive power of Mexico in order to make them valid moreover, they are all subject to the reservation contained in article 5 o law
August 18, 1824; that is, general government has reserved to itself the right to make use of any portion of these lands for the purpose of constructing warehouses, arsenals, and other public edifices.
These town grants are usually not only definitively limited in their ex tent, but are made with certain conditions respecting the sale or division of these municipal lands, the price being fixed by law.
It appears from the documents and laws which have been referred to
1st. That no grants of land made by the governors of California, afte the 21st of November, 1828, are valid without the approval of the territo rial legislature, or of the supreme government of Mexico.
2d. That the governor and legislature of California could, without the approval of the supreme government, make no grants whatever of land within ten leagues of the seacoast, nor within twenty leagues of the boundaries of any foreign power; nor could they anywhere grant to any one person more than one league square (una legua cuadrada) of five thousand varas of irrigable land, (tierra de regadio,) four superficial ones of land dependent on the seasons, (cuotro de superficie de temporal,) and six superficial ones for rearing cattle, (sers de superficie de abrenado. )
3d. That where grants are made and properly approved for towns, all municipal lands lying within the limits of such grants may be disposed of by the municipal authorities in solares cr building lots, in conformity to the laws applicable to such cases, except such lands as may be required by the general government for constructing warehouses, arsenals, or other public edifices, for the defence or security of the nation.
4th. That all lands in California not included within the limits of grants made in conformity to law, and prior to July 7, 1846, formed a part of the public domain of Mexico at the moment when the United States took possession of this territory.
Since the conquest no material change has taken place in the legal condition of land titles in this country.
Numerous applications have been made to the governor to decide upon the validity of these titles; but all questions of this kind have been postponed until some competent tribunal shall be formed for their adjudica. tion, the several claimants being advised in the mean time to have their lands surveyed by some competent surveyor.
Soon after General Kearny became governor of this country, representa
tions were made to him that it was important to the growth and prosperity of the town of San Francisco that the general government of the United States should immediately designate what land within the limits of that town was required for its use, (as pointed out in article 5 of the colonization law of August 18, 1824,) the town being permitted to dispose of the remainder as municipal lands. General Kearny, acting in the double capacity of civil governor of California and legal representative of the United States, made a decree, dated March 10, 1847, directing the selection of such land as was required for government purposes, and surrendering on the part of the United States all claim to the remainder within certain defined limits.
If the beach and water lots “ included between the points known as the Rincon and Fort Montgomery" are actually included within the original limits of the town, this decree of General Kearny can hardly be regarded as an ordinary land grant made by a territorial governor; it was rather the act of an agent of the supreme executive power of the general government, designating the lands required for the purposes contemplated in article 5 of the law of August 18, 1824, and releasing the remaining lands within such limits from the action of the general reservation contained in that article.-(Vide appendix No. 10.)
Representations having been made in 1847 to the governor that the former alcalde of the town of Sonoma had been guilty of fraud in the grants and records of sale of municipal lands, a board of commissioners was appointed to examine into these charges, with powers to settle ques. tions of title to these lands according to equity and justice. The proceedings and findings of these commissioners were approved by the governor, and, on the 9th of October, 1847, returned to the alcalde of Sonoma for file in his office.-(Vide appendix No. 11.)
Representations were also made to the governor that the municipal authorities of the pueblo of San José de Guadalupe had exceeded their powers in selling lands not belonging to, or at the disposal of, the town, and that they had divided up and granted or distributed to individuals all the common lands of the pueblo, the use of which had been conceded to the people of that place for the common purposes of pasture, wood, and sowing, but which had never been placed at the disposal of the municipal authorities either for distribution or sale. The opinion and action of the Executive on these proceedings are given in appendix No. 12.
It has also been alleged that the local authorities of other towns have not only disposed of municipal lands in a manner contrary to the provisions of the territorial laws, but in some instances have even gone beyond the limits of the town grants, and made sale of lands which properly belong to the national domain. But, as has already been said, there being no tribunals in the country competent to decide upon questions of this kind, they have been left for adjudication till the proper courts shall be established. And inasmuch as these questions touching the validity of land titles are exceedingly numerous, and as disputes are daily arising respecting the rights of the different claimants, it is deemed exceedingly important to the peace and prosperity of the country that measures be taken without delay for the speedy and final settlement of these titles upon principles of equity and justice.
II. Laws and regulations respecting the lands and other property be. longing to the missions of California. - The first law relating to the secu