Serrano v. United States
THIS was a proceeding, under the act of March 3d, 1851, for the confirmation of a claim to a tract of land in California known as the rancho of 'Temescal,' of four square leagues in extent. The petition to the board of land commissioners asked for the confirmation on two grounds:
1st. By virtue of an alleged grant of the premises by the authorities of the King of Spain to Leandro Serrano, the testator of the claimants; and
2d. By virtue of long-continued and uninterrupted possession of the premises.
The proof negatived the existence of a grant, but showed that Serrano had received the written permission of the priest of the mission of San Luis Rey (to which mission the land originally belonged), or of the military commander of San Diego, to occupy the premises, and that under such permission he took possession of them, and occupied them, or a portion of them, from about 1818 or 1819, until his death, which occurred in 1852.
The present claim was presented by his executrix (the widow), and his executor.
The deceased Serrano, made some improvements on the premises, consisting principally of two or three adobe houses, and he had a vineyard and fruit orchard. He had also several acres under cultivation, and was the owner of cattle, horses, and sheep, in large numbers, which roamed over and grazed on the hills and in the valleys surrounding his residence, to the extent of the four leagues claimed by him. His possession was continuous and undisputed until the cession of the country to the United States.
The land commission rejected the claim, but the District Court, on appeal, reversed the action of the board, and by its decree adjudged the claim valid, and confirmed it to the extent of four leagues. From this decree the United States appealed to this court.
Mr. Stanbery, A. G., and Mr. Wills, for the United States:
I. There is no archive evidence of the existence of a grant by Spain or Mexico to Serrano.
There is no petition, no diseno, no informs, no concession, no titulo, no confirmation by the departmental assembly, and no act of juridical possession. In short, there is not a single link in the ordinary chain of title for grants of land in California by the Spanish or Mexican governments, either before or after the passage of the colonization law of 1824 and the regulations of 1828.
The claim must, therefore, be rejected, on the authority of a long line of cases. 
II. Serrano's possession did not originate and continue under such circumstances as to bind the faith of Spain or Mexico, or to create an equity against the United States.
According to his own statement, these lands were originally occupied by the mission San Luis Rey, of which Serrano was the mayor-domo. The priest of that mission permitted him to settle on and occupy a portion of the lands claimed by it. Now, it is well settled that the mission had no title, and consequently could give no binding title or possession. 
According to his own statement, he was allowed to continue his possession by the military commandante. Military commandantes had no authority to make grants, except in pueblos.
Messrs. J. Hartman and Cornelius Cole, contra, for the respondents:
The positions taken for the claimants are, that Serrano, having entered in good faith under what he believed and may be presumed to have been competent authority, and having continued to occupy and improve the land under the governments of Spain and Mexico until the acquisition of this country by the United States and till this time, a period of about forty-eight years, has acquired thereby a title by prescription against this government as the successor of the former ones; and if this position be untenable, that the facts of the case present an equitable title, which should be confirmed.
I. The Spanish law of prescription is laid down in Escriche. 
Attention need be directed only to those provisions which declare a possession of twenty years, without title but in good faith, induced by the acts of others with the knowledge of the proprietor, to be good as a prescription even against the absent, and ten years against the present; and continuous possession of thirty years, however acquired, without suit brought against it, to constitute a prescription, even if it were acquired by violence or robbery; good faith not being exacted in a prescription of thirty years. 
By the Spanish law prescription of forty years is good against the king.
In the Recopilacion,  will be found a royal decree, which, after reciting that persons hold cities, towns, and villages without title, and that it is doubted whether the same could be acquired against the crown, ordained, 'That immemorial possession proved in the manner and under the conditions required by the law of Toro,  be afficient to acquire against us and our successors any cities, towns, use, jurisdiction, civil or criminal, and thing or part thereof annexed or belonging thereto, provided the time of said prescription be not interrupted by our command, naturally or civilly.'
The law of Toro, above referred to as defining the conditions on which property is acquired by prescription, is as follows:
'The time in which things are prescribed is comprehended under two kinds of prescription, immemorial and temporal; the first is proved by witnesses of good fame and character, who depose to having seen the person in possession of the thing or property for forty years, and having heard their ancestors say they never saw or heard anything to the contrary.' 
In Landry v. Martin,  the Supreme Court of Louisiana decided that the Spanish government recognized verbal as well as written grants to lands; and that after a long possession, for nearly half a centuary, a written grant, if necessary, would be presumed.
In Barclay v. Howell's Lessee,  this court held that an uninterrupted possession for thirty years would authorize the presumption of a grant. 'Indeed, under peculiar circumstances,' they say, 'a grant has been presumed from a possession of less than the number of years required to bar the action of ejectment by the statute of limitation.' It seems that the common law rule (that the presumption derived from possession is that the possessor owns absolutely), is applicable to possession before the introduction of the common law. 
In United States v. Castro,  where the grant was not produced, but the claimant had occupied the land for twenty years, the court says:
An occupation so long-continued and notorious, with a claim of ownership so universally recognized, might of itself be deemed sufficient evidence of ownership.'
Serrano undoubtedly always believed he was lawfully in possession, and had a right to the possession; and that belief was induced and fully justified by the acts of the Mexican authorities for a long course of years.
It is difficult, if not impossible at this day, to ascertain exactly what discretionary authority was vested, by the governors under the Spanish regime, in the priests of the mission, and the military commandantes in remote and thinly settled districts. Rockwell, in his Spanish and Mexican Law,  gives us some 'instructions of the viceroy (dated Mexico, August 17th, 1773), to be observed by the commandante appointed to the new establishments of San Diego and Monterey.'
Among them were:
'Article 12th. With the desire to establish population more speedily in the new establishments, I, for the present, grant the commandante the power to designate the common lands, and also even to distribute lands in private to such Indians as may most dedicate themselves to agriculture and the breeding of cattle; for having property of their own, the love of it will cause them to radicate themselves more firmly; but the commandante must bear in mind that it is very desirable not to allow them to live dispersed, each one on the lands given to them, but that they must necessarily have their house or habitation in the town or mission where they have been established or settled.
'Article 13th. I grant the same faculty to the commandante with respect to distributing lands to the other founders (pobladores), according to their merits and means of labor. They also living in the town and not dispersed, declaring that in the practice of what is prescribed in this article and in the preceding, twelfth, he must act in every respect in conformity with the provisions made in the collection of the laws respecting newly acquired countries and towns (reducciones y poblaciones), granting legal titles for the owner's protection, without exacting any remuneration for it, for the act of possession.'
Here is authority conferred upon the commandante, whose successor, at San Diego, placed Serrano in possession, for the distribution and granting of lands, with full discretion as to quantity, outside of the towns and missions; for it provides that the grantees shall not live dispersed on the lands granted, but in the towns and missions, for mutual defence.
The commandantes sometimes acted as the informing officers, when there was no civil officer in the vicinity, and grants were made upon their informations; and in pueblos, at least, they had full power to put parties in possession of land.
Similar functions were exercised by the priests, and they could give permission to occupy. It is not assuming anything to say that Serrano entered into possession lawfully, and not as a trespasser.
At common law the general rule with regard to prescriptive claims is, that every such claim is good, if by possibility it might have had a legal commencement,  and for upwards of twenty years' enjoyment of an easement, or profit a prendre, a grant, or, as Lord Kenyon is reported to have said, even a hundred grants, will be presumed, even against the crown, if by possibility they could legally have been made.  In Parker v. Baldwin,  Lord Ellenborough recognizes the right to presume a grant after twenty years, and asserts the practice of the courts to do so. And this doctrine has been repeatedly affirmed in our own country. 
The law will presume anything which would make the ancient appropriation goods, for whatever may commence by grant is good by prescription.
This court has passed upon the validity of permission to occupy lands where no grant had ever issued. It did so in the case of Berdugo et al. v. United States, for the San Rafael rancho, and in that of Yorba et al. v. United States, for the rancho of Santana, in both of which the claims were confirmed and appeals dismissed. The court has also uniformly held that the term 'grants' in a treaty comprehends not only those which are made in form, but also any concession, warrant, or permission to survey, possess, or settle, whether evidenced by writing or parole, or presumed from possession,  and that in the term 'laws,' is included custom and usage, when once settled, though of recent date. 
II. The equities of this case are sufficient to sustain the claim for a decree of confirmation. In Mitchel v. United States,  this court, in referring to the Florida case, uses this language:
'Another objection is of a more general nature, that the grantees did not acquire a legal title to the land in question. But it must be remembered that the acts of Congress submit these claims to our adjudication as a court of equity, and, as often and uniformly construed in its repeated decisions, confer the same jurisdiction over imperfect, inchoate, and inceptive titles, as legal and perfect ones, and require us to decide by the same rules on all claims submitted to us, whether legal or equitable. Whether, therefore, the title in the present case can partake of the one case or the other, it remains only for us to inquire whether that of the petitioner is such, in our opinion, that he has, either by the law of nations, the stipulations of any treaty, the laws, usages, and customs of Spain, or the province in which the land is situated, the acts of Congress and the proceedings under them, or a treaty, acquired a right which would have been valid if the territory had remained under the dominion of Spain.'
The same construction has been placed upon the rights of claimants, under the act of Congress by which this case is brought within the jurisdiction of this court. In United States v. Alviso,  where the claimant had only taken the preliminary steps for the acquisition of title, and had obtained, pending his application, a mere permission to occupy, under which he had occupied the land since 1840, had improved and cultivated it, and his family had resided on it, the court says:
'The claimant appears to have been a citizen of the department, and no objection was made or suggested why he should not have been a colonist of that portion of the public domain he has solicited; no imputation has been made against the integrity of his documentary evidence, and no suspicion exists unfavorable to the bona fides of his habitation, or the continuity of his possession and claim. He has been recognized as the proprietor of this land since 1840.'
The documentary evidence referred to in that case, consisted only of the petition and permission to occupy; of no legal effect as a grant, but showing the bona fides of his occupancy, and the knowledge and assent of the authorities, which, coupled with his continuous possession, gave him, in the opinion of the court, an equitable title which they felt bound to recognize.
In United States v. Wilson,  where the claim rested upon a general order of Governor Alvarado, in 1842, to the alcalde of the mission of Obispo, to distribute the mission lands among the resident Indians, according to the merits of each, under which order the alcalde made a general distribution, giving to one Romualdo much more than to the others, upon a special order of the governor, in reward for meritorious services, Romualdo having lived on the land for many years, the court says: 'The title seems to be in conformity with the practice and usages of the Mexican Government. . . . In the present instance the possession and cultivation were of considerable duration, and the distribution was intended to be permanent, and as a home for the occupant. The claim appears to be an honest one, unaccompanied by suspicion, and under the circumstances, we think, was properly confirmed.'
The decision of the court does not recognize the order of Alvarado as competent to convey title, but as merely creating an equity recognized by Mexican usages, which, coupled with a long possession and cultivation, constituted 'an honest claim,' which the court did not feel it could disregard.
Mr. Justice DAVIS delivered the opinion of the court.
^1 See, among the more recent, Romero v. United States, 1 Wallace, 721; White v. United States, Id. 660; Pico v. United States, 2 Id. 281.
^2 United States v. Ritchie, 17 Howard, 525, 540; United States v. Cruz Cervantes, 18 Id. 553; Nobili v. Redman, 6 California, 325.
^3 Vol. ii, pages 741-2, tit. Prescripcion de Dominio.
^4 Siete Partidas, title xxix, L. 18, 19; see Moreau & Carlton's translation, vol i, pages 382-3; Feb Mejicano, vol. i, lib. 2, cap. 2, cap. 2, § 41 to 45.
^5 L. 1, B. 4, title 16.
^6 Which is law 1, title 7, b. 5, of the Recopilacion.
^7 White's Recop., 1 vol. 95; see Lewis v. San Antonio, 7 Texas., 288, where the above law is cited.
^8 15 Louisiana, 1.
^9 6 Peters, 498.
^10 Herndon v. Casiano, 7 Texas, 322; New Orleans v. United States, 10 Peters, 734.
^11 1 Hoffman, 125.
^12 444 Appendix, No. 1; see Halleck's Report, California Correspandence, 119, where also there instructions are to be found.
^13 Lord Pelham v. Pickersgill, 1 Term, 667.
^14 Roe v. Ireland, 11 East, 284.
^15 Id. 490.
^16 Gayetty v. Bethune, 14 Massachusetts, 49; Kirk v. Smith, 9 Wheaton, 241; Rowland v. Wolf, Bailey, 56; Hogg v. Gill, 1 McMullan, 329.
^17 Strother v. Lucas, 12 Peters, 436.
^18 Renner v. Bank, 9 Wheaton, 585.
^19 9 Peters, 733; see, also, the opinion of the court in Strother v. Lucas, 12 Peters, 446, for a full discussion of the equity jurisdiction over inceptive titles.
^20 23 Howard, 318.
^21 1 Black, 267.