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Dissenting Opinion

United States Supreme Court

59 U.S. 557

United States  v.  Larkin

Mr. Justice CAMPBELL, dissenting.

In exercising the jurisdiction conferred by the act of congress of the 3d March, 1851, in reference to claims for lands in California, it seems to me this court should be satisfied that the claimant has received a title from the governor who was a legal representative of the Mexican nation, and that no credit should attach to the acts of the usurpers who from time to time occasioned anarchy and civil war in that territory; that the grant should be, in spirit and effect, a colonization grnat, in accordance with the Mexican laws; that it should describe the lands so that they can be identified; and that the conditions of improvement and occupancy should be substantially fulfilled. The case before us, is a claim for eveven leagues of land lying on the Sacramento River, with that length and of a league in width. The papers purport to have been made during the four first days of November, 1844, by the governor of the territory, in favor of one Jimeno, the secretary of the government. The usual inquiries could not be made, for the party interested was charged with the performance of that duty; though the governor recites that, in making the grant, he had conformed to the regulations. The patent issued the 4th November, 1844, subject to the conditions that juridical possession should be taken, and the proper boundaries marked out, and that the grantee should plant fruit-bearing, or forest trees of some utility; and if he failed to perform the conditions he should lose the land. No act was done by this person during 1844 or 1845, or the early part of 1846, which indicates any claim on his part to this land. There is a petition entered by himself on the expediente, directed to the departmental assembly, dated 21st April, 1846, asking for a confirmation and a certificate of one Olivera, dated 3d June, 1846, that it had been presented and referred to the committee of public lands. Here the connection of Jimeno terminates. The preparation of these papers is the whole extent of that connection. In August, 1847, the petitioner, Larkin, consul of the United States at Monterey, purchases from Jimeno this claim for one thousand dollars, or rather, that is, the price recited in the deed of Jimeno to him. The American flag had been raised at Monterey twelve months before, and the whole country was then in the possession of General Kearney.

We have some unsatisfactory evidence that Larkin, either in 1847 or 1848 sent a Spaniard to enter upon this land; a camp, in which he might find a shelter and some conveniences for collecting cattle, form the facts of this settlement.

Neither, Jimeno nor Larkin entered upon or occupied the land. The evidence merely shows that Larkin was laying the foundations for a claim upon the United States, and was wholly unconnected with the Mexican regulations. The evidence satisfies me that this claim was fabricated after the difficulties between the United States and Mexico had occurred, with a view to enable the American consul at Monterey to profit from it, in the event of the cession of the country to the United States. I lay no stress upon the fact that the papers are found in the archives. I presume Jimeno was the keeper of those archives. I dissent from the judgment of the court confirming this claim.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).