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Dissenting Opinion
Daniel
Separate Opinion
Catron

United States Supreme Court

59 U.S. 1

United States  v.  Reading

THIS was an appeal from the district court of the United States for the northern district of California.

The claim was originally presented to the board of commissioners, who confirmed it in December, 1852, to the extent and quantity of six square leagues and no more, as described in the Mexican grant, if that quantity be contained within the boundaries called for in the grant; and if less, then they confirmed it for that smaller quantity.

The United States appealed to the district court, which affirmed the decision of the commissioners. An appeal brought the case up to this court.

The title of Reading is set forth in the opinion of the court, except the conditions of the grant, which were as follows, namely.

'In the name of the Mexican nation I have granted to him said land, subject to the approval of the most excellent departmental assembly, and to the following conditions:--

1. He shall not sell, alienate, or hypothecate it, nor impose on it any tax, entail any other incumbrance, nor shall he donate it.

2. He shall not hinder the cultivation or other profits which the natives of that region may derive from said land.

3. He may inclose it without prejudice to the crossing roads and public uses; he may enjoy it freely, appropriating it to the cultivation which best suits him, but within a year he shall build a house and it shall be inhabited.

4. The land which has been granted is of the extent of which mention has already been made. The judge who shall give the possession shall cause it to be measured according to ordinance, and the overplus which may result shall remain to the nation for convenient uses.

5. If he contravene these conditions, he shall lose his right to the land, and it shall be denounced by any other person.'

The case was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Lawrence and Mr. Bibb, for the appellee. There was also a brief filed upon the side of the appellee, by Mr. Volney E. Howard.

Mr. Cushing made the following points:--

1. Reading not being a Mexican citizen, could not take and hold a grant of land in a Mexican territory.

For the rule of naturalization prior to 10th September, 1846, see Scmidt's Laws of Spain and Mexico, 353. For additional provisions made then, see Leyes y Decretos, 1844-1846, p. 423.

2. Reading was not entitled to take and hold lands in California, which was frontier territory.

3. The grant was not approved by the departmental assembly.

4. Without the approbation of the departmental assembly, there was no grant passing any title. Fifth regulation of November 21, 1828.

5. Reading would have no claim, in law or equity, upon Mexico to complete and confirm his incipient title, if she had not transferred California to the United States by treaty.

6. Reading abandoned whatever claim he had, before the final conquest by the United States.

Mr. Bibb contended that, with respect to the condition of obtaining the approval of the departmental assembly, it was the duty of the governor, and not the grantee, to lay the case before that body. Fifth and sixth regulations of 1828. The omission or neglect of the governor to do this, could not deprive the grantee of his vested interest. 5 Cranch, 242; 9 How. 333.

So also are the legal maxims, Nemo punitur sine injuria, facto, seu defalta. Nul prenada advantage de son tort demesne. Coke's 2 Inst. 287, 713, and maxims at the end of that volume. Domat's Civil Law, book I. title 1, § 5, par. 17, p. 29; Pothier on Obligations, part 2, chap. 3, par. 212; Co. Litt. 205 b; 2 Comyn's Dig. Condition, (D. 7,) p. 327; 5 Viner, Condition, (N. c,) pleas 23, 25, p. 246.

With respect to the other condition subsequent, namely, the judicial mensuration and marking out of the boundaries, the evidence shows that the grantee was not to blame.

The United States have not claimed nor attempted to exert the power to annul Mexican grants for non-performance of conditions. 9 Stats. at Large, 633, § 11, et seq.

Mr. Justice WAYNE delivered the opinion of the court.

NotesEdit

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).