Full opinion text
Baldwin, J. delivered the opinion of the Court Field, C. J. concurring. The immense interests involved in the decision of this case have drawn to it a laborious and careful examination by numerous and able counsel, of the various points and considerations connected with the controversy. Probably no cause ever submitted to this Court has been more thoroughly and learnedly discussed, both at the bar and in written and printed arguments. We have postponed the decision from time to time for further examination and argument; for we were unwilling to pass upon the question until all attainable sources of correct and reliable information had been exhausted. To that end, we have extended a latitude to the debates which we have not allowed in any other case; and we have postponed attention to much important and pressing business, that we might fully consider this record, unembarrassed by other engagements. This is an appeal from the late Superior Court of the city of San Francisco. It involves the title to a number of fifty vara lots, levied upon and sold by the Sheriff of San Francisco county, under judgment and execution in a suit of Jesse D. Carr v. The City. Although the property actually involved in this case is not very large, the question really to be decided affects property of immense value, and the right and title of the city of San Francisco to what is termed its municipal lands, the construction of the Act of Congress, approved March 3rd, 1851, and the liability of such lands to forced sale under execution. I. In discussing this case, the first question to which we shall direct bur attention is this: Was there any law authorizing the establishment of a pueblo at San Francisco, and was any such pueblo ever established ? It appears from the history of Spanish jurisprudence, that special attention was given in very early times to the establishment of cities, (ciudades) towns, (pueblos) and villages, (villas) and that particular laws were enacted for their foundation and government. Title seven, book four, of the Recopilación de Indies, refers especially to this subject, and contains numerous laws and provisions relating to the different classes of land belonging to such municipalities. Some of these laws will be more particularly referred to hereafter. Title five of the same book, relates especially to the formation of settlements of a municipal character, and their subsequent organization into municipal bodies. Law six of this title authorizes contracts to be made for the founding of towns, and prescribes the conditions to be imposed upon the contractors. Law ten authorizes the founding of towns by the voluntary union of families, without contract with way poblador particular. These laws constitute a part of the system of Spain for the settlement of Spanish America. They contemplate two modes of founding towns or municipal settlements: one by contract with a particular individual or poblador, who undertook to bring together a certain number of families or settlers, and build a town; the other by the voluntary union of a certain number of families or settlers, who were to act in concert for the same object. We find among the printed Mexican laws and orders, and the numerous documents made evidence in this case, and referred to in the briefs of counsel, various official documents relating to this same system, and illustrative of the policy of the Spanish Government with respect to the establishment of such municipal settlements in California. We refer more particularly to the “ Regulations of Presidios,” of September 10, 1772; the “Instructions” of August 17, 1773 ; the “ Regulations ” of June 1, 1779 ; the “ Opinion ” of October 27, 1785 ; and the “ Order ” of June 21, 1786. (Cong Doc. thirty-first Cong. first Sess.; H. of R. Ex. Doc. No. 17, 133 et seq.; Arrillaga’s Recopilacion de Leyes,1828, 121; Limantour Land Com. Ex. “ O.” The opinion of the Fiscal, dated October 27, 1785, and the order of the Commandant General, dated June 21, 1786, fully recognize the right of the Governor of California to form and mark out pueblos, and the right of such pueblos to four leagues of land. (Lim. Land Com. Ex. “O,” 60.) In 1789, November 14th, a plan was formed for the town of Pitic, in Sonora, which, by the direction of the King, was to be taken as a model for all other towns formed in that commandancy, which commandancy then included California. This plan is of record in the archives of California, now under the charge of the United States Surveyor General. It dedicates four square leagues to the town for various municipal purposes, and directs that if they cannot be had in a square, they may be taken in some other form. This plan will be again referred to hereafter. In an order from the Commandant General of this commandancy to the Governor of California, dated October 22, 1791, authority is given to form pueblos out of the existing presidios, and an extent of four square leagues of land is designated for each of such new pueblos. (Ex. Doc. No. 17, 139 ; Lim. Land Com. Ex. “O,” 66 et seq.) A decree of the Spanish Cortes, May 23, 1812, provides for the municipal organization of pueblos, and the election of Ayuntamientos, consisting of Alcaldes, Regidores and Syndicos. Another decree, of August 9 th of the same year, confers upon the Alcaldes of pueblos certain political and judicial powers. These decrees continued in force in Mexico after its separation from Spain. (Leyes Vigentes, 28, 50.) Such is a brief outline of the laws relating to pueblos in California prior to the Colonization Law of 1824, and the Executive Ordinance or Regulation of 1828.) The first of these—the law of August 18, 1824—makes no new provisions for pueblos, but in section two it recognizes the fact that pueblos have a right of property in land. The Executive Regulation of November 21st, 1828, section ten, provides for the formation of new pueblos of at least twelve families each, by capitulantes or contractors. No change, however, is made in the laws respecting pueblos formed in the usual way, by the union of families or settlers for that purpose, or by the conversion of presidios into pueblos. It was also stated in these Regulations that the Missions of California were not “ for the present ” to be colonized. Although the Spanish Cortes, by decree of September 13th, 1813, had claimed the Catholic Missions as Government property, and exercised the right to secularize them and convert them into secular and municipal organizations under the name of pueblos, the Executive of Mexico, in forming the Regulations of 1828, seemed to prefer reserving this subject for the further action of the Mexican Congress. That body, on the seventeenth of August, 1833, passed a law secularizing all the Missions of Upper and Lower California, thus bringing them within the general operation of the laws, and especially of the Colonization Law of 1824, and the Regulation of 1828. A number of departmental laws and regulations were subsequently issued by the Governor and Legislature of California, for converting these Missions into pueblos, for the government of such pueblos, and for the use and disposition of the lands and other property pertaining to them. (Ex. Doc. No. 17, 138 et seq.; Gov. Figueroa’s Manifesto; U. S. Printed Mission Exhibit; Leyes Vigentes, 106.) This brings us to the period when it is claimed that the pueblo of San Francisco was first founded. We will now consider the evidence adduced to show the fact of the establishment of a pueblo, without reference to its boundaries or to its title or right to any lands. We shall make no reference to the Zamorano document, or to what is called the Vallejo line, but only to documents whose genuineness is entirely undisputed. On the third of November, 1834, the Territorial Deputation authorized the election of an Ayuntamiento to reside at the presidio of San Francisco, to be composed of an Alcalde, two Regidores or Councilmen, and a Sindico-Procurador. This Ayuntamiento, when organized, was to exercise the political functions pertaining to such office, and the Alcalde was also to perform the judicial functions which the laws conferred upon him. This decree was communicated to the Military Commandant by the Governor, on the fourth of November, 1834. An election was accordingly held on the seventh of December, 1834, at the presidio of San Francisco, and the Ayuntamiento duly installed. A similar election was held on the thirteenth of December of the following year, (1835) at the same place, which was then officially designated as the pueblo of San Francisco. Other elections of the same character were subsequently held; and there are numerous official documents of undisputed authenticity, which refer to the “Ayuntamiento of San Francisco,” the “Alcalde of San Francisco,” and to the “ Pueblo of San Francisco,” proving, as we think, beyond a doubt, that there was at that place, in 1834, 1835, 1836, and subsequently, a pueblo of some kind, with an Ayuntamiento composed of Alcaldes, Regidores and other municipal officers. What were the rights of this municipality, and what the powers of its officers, and the extent of its territory and jurisdiction, we shall not now inquire. We here refer merely to the fact of the existence, at that time, and at that place, of such an organization, whether corporate or incorporate. And that fact is proved by the official returns of elections, by the official acts of the Governor and of the Territorial or Departmental Legislature, by the official correspondence of Government officers, and by the acts, proceedings, records, and correspondence of the officers of the pueblo itself. As a part of the evidence of this fact, we refer to the election returns of December 7th, 1834, December 13th, 1835, December 3d, 1837, and December 8th, 1838; to the Governor’s letters of January 31st, 1835, October 26th, 1835, January 19th, 1836, January 17th, 1839, and November 14th, 1843; to the expediente of proceedings between May and November, 1835, with respect to certain persons obliged to serve as municipal officers of that pueblo; and to the official correspondence between the Alcaldes of that pueblo and the various officers of the Territorial or Departmental Government of California. II. Had this pueblo a right or title to any lands ? and if so, to what lands ? In examining these questions, it will be necessary to recur to the laws and authorities already referred to. All the old Spanish laws relating to the foundation and government of pueblos in the Indies, seem to admit the fact that such municipal organizations possess some right to, and some control over the lands upon which they are established, and which are included within their limits. In this respect there does not seem to be any essential difference between pueblos founded by an individual poblador or capitulante, and those founded by the actual settlement of a number of families, voluntarily uniting together without any contract or capitulation. A pueblo, when once established, (no matter how or by whom composed) and officially and legally recognized as such, came immediately within the provisions of the general laws relating to pueblos, and was entitled to all the rights and privileges, whether political, municipal, or of property, which the laws conferred upon such organizations or corporations. Sometimes, however, special laws and regulations were made for particular places. Such seems to have been done in very early times, with respect to the infant establishments of Monterey and San Diego, and the pueblos of San José and Los Angeles, and the villa of Branceforte in California. (Recop. de Indies, book 4, tits. 5 and 7; Regulations of Presidios of 1772; Bucareli’s Instructions of 1773; Neve’s Regulations of 1779, etc.; Ex. Doc. No. 17, 134 et seq.; Navarro’s Opinion, October 27th, 1785; Ugarte y Loyola’s Order, June 21st, 1786; Nava’s Order, October 22d, 1791; Limantour Land Com. Ex. “O.”) By law six, title five, of book four, of the Recopilación, a new town, containing at least thirty inhabitants and the other requisites for a municipal organization, was entitled to four square leagues of land, to be laid off in a square or prolonged form, as the nature or circumstances of the land might require. This right of a town, when duly organized, to this extent of land, is particularly referred to and repeated in the Royal Instruction of 1789 for the plan of Pitic, which plan was made applicable to all new towns that should thereafter be established in California, as a part of- that General Commandancia. The particular municipal organization of such new towns was to depend, under the laws, upon the name or title given to them, as ciudad, pueblo, villa, etc. It will be noticed that the town of Pitic was organized out of the Presidio of San Miguel, which was removed to that locality for the purpose of forming, guarding and protecting the new settlement. In the order of 1791, by the Commandant General to the Governor of California, for the formation of pueblos out of presidios, it is also specially directed that the extent of land for each of these pueblos should be four common leagues, measured from the center of the presidio plaza, or square, viz: two leagues in each direction. Of course, under the law and royal instruction above referred to, and upon which this order was based, this form and these dimensions were to be changed according to the nature and circumstances of the land; as when the presidio was adjacent to the sea, or on a bay, or where any portion of the land within such general limits had become private property, or had been devoted to some other special object. It does not appear that any formal grants of land were made to the new pueblos in such cases; but their right or title, whatever it was, to land, to the extent of four square leagues or less, as the case might be, seems to have vested, ipso facto, on the formation or official recognition of such town, and that the powers of the municipal officers over such land resulted from the general laws, immediately on the municipal organization, and their election and entry upon the duties of their respective offices, and that these powers might be restricted or enlarged by the political authority of the State. It is true, that in the case of Pitic, and in some other towns, an officer was appointed to mark off the boundaries of the four square leagues, and to designate the particular kinds of land, and the uses to which they were to be applied, within such limits; but the right or title, whatever that might be, “ to the land so marked out,” could not result from the act of measurement or survey. And as no subsequent grant was made, or seems to have been contemplated, the title, if any passed at all, must have vested ipso facto upon the organization of the pueblo. Such seems to have been the intention of the laws themselves, and the construction put upon them by the officers by whom they were administered. It follows, from what has been already stated, that when near the close of 1834 a municipality was erected at the presidio of San Francisco, by the orders of the Governor and Territorial Deputation of California, and that place was officially recognized as a pueblo, and its organization completed by the election of the municipal officers provided for by law, such pueblo became, ipso facto, vested with some right or title to four, square leagues of land, measured either in a square or prolonged form, from the presidio square as a general central point; excepting so much of the space within such general limits as might not be susceptible of grant, on account of its being water, the private property of individuals or corporations, or lands dedicated to or reserved for other purposes. Before proceeding to investigate the character of this right or title, we will premise a few remarks upon the character of the land embraced within the limits described, in order to give a general idea of the claim of the new pueblo and its boundaries. It appears from official maps made under the direction of the United States Surveyor General and the Superintendent of the United States Coast Survey, that the old presidio of San Francisco was situated near the middle of the northern extremity of the peninsula formed by the ocean and the bay of that name; that the width of this peninsula, as far south as the Mission creek, is less than two leagues, and that still further south, to the Buri-Buri or Sanchez Rancho, the average width is just about two leagues; although two or three points, as Lobos and Avisadero, project somewhat beyond these points very nearly corresponding with indentations, as Mission bay and Merced lake, on the opposite sides. Of course, the pueblo could acquire no right or title to 'the ocean or bay; and consequently, according to the law of its foundation, the four square or common leagues would be taken in a prolonged instead of a square form. Again, it appears from the documentary evidence and from other authentic sources, that at the time of the formation of this pueblo, there was a fort or battery, with its buildings and appendages, at the entrance of the bay of San Francisco; it would seem that the fort and the land pertaining thereto and necessary for its service, would be excepted out of the pueblo claim, for it is understood that such establishments were not, under the Spanish laws, susceptible of acquisition by town settlements or by colonization. (Mitchell et al. v. The United States, 15 Pet. 86 et seq.) Again, it also appears that long prior to the organization of this pueblo, there existed within the limits of the four square leagues, an establishment called the “ Mission of San Francisco ” or “ of Dolores,” with some sort of claim or right to the lands in that immediate vicinity. Perhaps some of these lands were also so dedicated or reserved as to exempt them from any right or title which the pueblo acquired by its organization. If so, what was the extent of the land so reserved or excepted ? It appears that, in very early times, some disputes arose with respect to the lands which the inhabitants of the presidio and Mission were respectively entitled to occupy and use, and that some line of division was established between them corresponding to, or near to Mission creek, and to what is now called the Vallejo line. The lands north of that line, wherever it may have been, were generally called “ presidio lands,” and those on the south, as far as San Mateo creek or the northern boundary of the Pulgas rancho, were called “ Mission lands.” It also appears that the ordinance or regulation of 1828 exempted the lands actually occupied by the Mission from colonization “ at present,” and until it was determined what right the Mission establishments had in these lands. The secularization law passed in 1833, and various measures were subsequently taken by the authorities of California to organize the Missions into pueblos, and to reduce their lands to colonization. It further appears that, on the 3d of November, 1834, a curacy was authorized for the Mission of Dolores, which was one step in the operation of secularization; but that, at a later period, it still retained some of the characteristics of a “ Mission,” although portions of the land which it had formerly occupied, in the direction of San Mateo and across the bay, had already been disposed of by grants to private individuals. The Land Commission and the United States Supreme Court have decided that these titles were valid, and that the lands previously occupied by the Mission establishments were subject to grant in colonization. Moreover, the Commissioners and the law officers of the Government have decided that the Mission church, cemetery, buildings occupied by the priest, and a small piece of land pertaining to these as curtileges, were dedicated to the use of the Catholic church, and consequently were not susceptible of grant in private ownership. It would seem, from these facts, that in December, 1834, when the pueblo was organized, this pueblo could not acquire any title to these “ church lands,” which were occupied by that establishment, although lying within the general limits of the four square leagues designated by the laws. Perhaps, however, when the occupation by the Mission ceased, such of these lands as had not been granted in private ownership, or dedicated to pious uses, became subject to the general right of the pueblo as pueblo lands. There are certain facts shown by the evidence in this case which confirm this view. At first, the municipal authorities of the pueblo made no grants at the Mission, but subsequently, under the orders of the Governor, the same Alcalde granted solares alike at the place called “ Terba Buena,” and at the old “establishment of Dolores,” the latter being limited to fifty varas square. But it is unnecessary to investigate or decide this question here, for it is admitted that the land now in dispute is north of Mission creek and within the tract confirmed to the city of San Francisco under the Act of March 3, 1851. We have thus far considered the question of the establishment of the pueblo of San Francisco, and its limits, without any reference to what is commonly called the “ Zamorano document,” the genuineness of which has been strongly contested in the arguments of counsel. The only tribunal which has judicially investigated the character of that document, seems to have considered its genuineness sufficiently established. But, even admitting its genuineness to be beyond all doubt, we attach to it very little importance for the purpose of this investigation. The more important facts mentioned in it—the' order of the Governor and Territorial Deputation of 1834, for the election, at the presidio of San Francisco, of an Ayuntamiento, and the official recognition of the change of that presidio into the pueblo of San Francisco—are also abundantly proved by other documentary evidence, the genuineness of which has never been called in question. The only effect of the Zamorano document would be to restrict at that particular time the possession of the pueblo to a space less than the four square leagues to which it was entitled under the law. And there is much evidence outside of the document to show that such was the fact. But, as already stated, it is unnecessary, for the purposes of this case, to determine that question, and we therefore have left that document entirely out of consideration. Nor do we deem it necessary to follow counsel through their elaborate discussion respecting the history of the Missions, and the numerous acts and regulations of the Governors and the Legislatures of California under the law of 1833, respecting the secularization and conversion of the establishments themselves into pueblos, and the colonization of the land which they had previously occupied. According to our view, the pueblo of San Francisco was first formed out of the Presidio of that name, and not out of the Mission; and consequently, the question of its original formation was in no way dependent upon the law of secularization. There are, however, some things connected with the execution of that law, which serve to explain certain facts in the subsequent history of this pueblo. It would be very natural, upon the partial or entire secularization of the Mission, considering its advantageous position, and the superior quality of the land at that establishment, the location of the church, the residence of the parish curate, etc., that a portion of the pueblo settlers and of its municipal officers would establish themselves in that place. We accordingly find that, in the infancy of the pueblo, or in 1837, according to the testimony of Sanchez, the Secretary of the Ayuntamiento, most of the inhabitants, not engaged in commerce, did reside there, and also that several of such residents at the old Mission were, at different times, members of the Ayuntamiento. There is, too, some evidence to show that in 1837 or 1838, permission was asked of the Governor to hold the sessions of that body at the old Mission, and as they were so held, it is to be presumed that the request was granted. A few of the inhabitants who were engaged in commerce located themselves at the place called “Yerba Buena,” on account of the advantageous anchorage for shipping in the cove of that name. And, as commerce increased, that little settlement, notwithstanding the nature of the soil, but with the larger element of foreign population which is shown to have been introduced there, very soon outstripped the settlement at the old Mission, which was mostly composed of a less enterprising population of Mexicans. Moreover, it was natural that foreigners, who were mostly engaged in trade, should call that place the “pudblo of Yerba Buena,” while the old inhabitants of the country should apply to it, and to the old Mission, the general terms “ pueblo of San Francisco,” or “ pueblo of Dolores,” as is testified to by various witnesses. It was also very natural that, in the course of time, the names “ pueblo of San Francisco,” “Yerba Buena,” “port of San Francisco,” “Mission of Dolores,” “ pueblo of Dolores,” etc., should by different persons be applied indiscriminately, either to the entire northern portion of the peninsula, or to particular parts thereof. This, it seems to us, fully explains and reconciles some apparent contradictions in the parol and documentary evidence. Again, it should be observed that the term “dé Assis,” which is sometimes affixed to the name “ San Francisco,” although, perhaps, more usually applied to the Mission, was a part of the appellation of the saint whose name was given to the bay when it was first discovered, which appellation belonged alike to the bay, the fort, the presidio, the Mission, and the pueblo—all of which took their name from the same saint. That these words should be more often added in speaking of the Mission is very natural, because there were other Missions in California called after other saints by the name of Francis, as the Mission of Sonoma, which took its name from “ San Francisco de Solano;” the Mission below San Diego, which took its name from “ San Francisco de Borja,” and the Mission further south, which took its name from “ San Francisco Xavier.” (Butler’s Lives of the Saints, verbo Saint Francis; Life of Padre Ugarte; Vanega’s History of California ; Life of Padre Junípero Serra; Garcia y Cubas’ Carta de Baja California.) It may be proper in this connection to allude to some of the objections made by counsel to the view we have taken respecting the organization and character of the pueblo of San Francisco. It is said that the first order calling for the election of an Ayuntamiento at the presidio, was for the “ partido of San Francisco;” that many of the voters and some of the persons elected to office, in 1834 and subsequently, did not then reside at that place ; that the military commandant of San Francisco, who was superseded in authority by the Ayuntamiento so elected, exercised jurisdiction as far south as the Pulgas rancho; that the Ayuntamientos and Alcaldes of San Francisco exercised authority, both political and judicial, not only over the four leagues claimed as constituting the pueblo, but also south to San Mateo or Francisquito creek, and across the bay to the north and east—in fine, over the whole “ partido ” of that name. It was very natural that in founding the new pueblo, the inhabitants of the adjacent country should be called upon to assist in commencing the new settlement, and forming its municipal organization. Where else were settlers to be looked for or obtained ? We hear of no recent arrival of emigrants or colonists who were to build up the new town. Nor was it for such persons, or for the purpose of colonization, that this pueblo was established. It was rather for the purpose of carrying out the general policy which had been pursued by Spain in her American dominions, and which is often alluded to in the instructions issued to the Governors of California, of inducing the scattered inhabitants of the country to unite and build up towns, as being more conducive to civilization, and as forming a better protection against the incursions of hostile Indians. Moreover, the persons entitled to elect Ayuntamientos of pueblos, were not merely those who actually resided within the limits of the lands which pertained to such pueblos. The Alcaldes, who were the principal officers of the Ayuntamientos of pueblos, sometimes exercised political and judicial authority over much larger geographical districts, and the inhabitants of such districts were°entitled to vote at the primary elections which were held to fill such offices. It is shown in official documents, that the Alcaldes of San Jose at one time exercised political and judicial jurisdiction upon the Contra Costa, and over the whole extent of country from the Pulgas Rancho to San Juan Bautista, and that the officers of the pueblo of Los Angeles at one time exercised such jurisdiction from the Conejo Rancho to San Juan Capistrano. Are we to infer from these circumstances that no pueblos had been founded at either of the above named places ? Such an inference would not only be unauthorized, but would be entirely contradicted by well established and indisputable facts. Again, it is said that the Governors of California made grants of land to private persons within the limits of the four square leagues of the so-called pueblo of San Francisco, which fact precludes the idea that this pueblo had any title to the land within such limits. Admitting the fact to be as stated, we do not think the inference logical. Suppose the municipal officers of the pueblo had been precluded from exercising any authority whatever over such lands, and that the right to distribute or grant them to the settlers had been retained by the Governor in his own hands, or had been conferred upon a commissioner, or some other officer in no way connected with the Ayuntamiento; would that fact constitute any argument against the supposition that the pueblo or its inhabitants had a vested right or interest in such lands? We think not. As will be more particularly stated hereafter, the inhabitants of the pueblo may have had a vested right, interest, or use in such lands, and they may have been set apart and dedicated to some special object and purpose, and yet the legal title, subject to such purposes and uses, may have been vested for the purpose of grant in some one else, and the trust may have been executed by the Governor himself, or by some other person duly appointed for that purpose. The ownership of property may be in the sovereign, and the use private or public; or the ownership may be public and the use private. This depends upon the character of the ownership and dedication, and the circumstances of the use. (Bouvier, Law Dictionary, verb Dedication; Town of Pawlet v. Clark, 9 Cranch. 292 ; McConnell v. Town of Lexington, 12 Wheat. 582; Hawkins v. Arthur, 2 Bay, 195; Barclay v. Howell, 6 Pet. 498 ; City of Cincinnati v. White, 6 Id. 431; New Orleans v. The United States, 10 Id. 712.) If Governors of California have granted lands within the general limits of pueblos, it will be presumed, unless the contrary be shown, that such grants were made in accordance with the objects and uses for which such lands had been assigned and dedicated by the laws to the pueblos. The whole matter was subject to the control and direction of the Governor and Territoral Deputation, and the official acts of such officers within the general scope of their powers are presumed to have been done by lawful authority, (United States v. Perchman, 7 Peters, 95.) So far as we have examined the grants made by the different Governors within pueblo limits, they seem to have been in conformity with such general object of building up a town by encouraging settlement and cultivation, and with the uses to which such lands had been dedicated. If the tract granted was of a larger size than that usually given for a building lot or for gardening purposes, the Governor generally first consulted the Ayuntamiento or Alcalde, to ascertain whether there was any objection to the grant, or sent the grant to them for their action prior to its being delivered to the grantee. Moreover, the tracts so granted were usually at a considerable distance from the principal settlement, or upon the very outskirts of the pueblo lands, and a special clause was generally introduced, making the lands so granted subject to the regulations and tax or canon of the respective pueblo. [We shall hereafter examine more particularly the meaning of this word canon.] These facts are highly significant, and tend to confirm the view we have taken of the Spanish and Mexican laws relating to pueblos. The power of the Political Chief and Territorial Deputation, as well as that of the Ayuntamiento and Alcaldes, over the lands assigned to pueblos as pueblo lands, existed prior to the Colonization Law of 1824, and did not result from that law, nor from the Executive Regulation of 1828, which was based upon it. In fact, the law of 1824 expressly excludes from its provisions all lands pertaining to pueblos. And this view, we think, is fully sustained by the very able and interesting reports of the Junta appointed by the Supreme Government of Mexico to propose measures for the settlement and colonization of Upper and Lower California. These reports were printed in a collective form in 1827, and gave rise to the Executive Regulation of ¡November 21st, 1828. This Junta or commission was composed of the most distinguished statesmen and lawyers of Mexico, and among them was Don Pablo Vicente de Sola, who had for some years been Governor of California. The opinions of these men are well worthy of consideration. (Dictamen y Planes de la Junta, 11, etc.; Navarro’s Opinion, cited above.) But it is said that regular grants in colonization and of undoubted authenticity were made by the Governor, after 1834, to lands south of Mission creek, and within or partly within the general limits of the four leagues claimed to have been assigned by law to the pueblo of San Francisco; and it is contended that we must adopt one of two alternatives—either that the pueblo had no title to any lands within the four square leagues, or that such grants in colonization are utterly null and void. We do not feel compelled to adopt either of these conclusions, nor do we see any reasons to justify us in doing so. That the pueblo had a right or interest in some of the lands within the general limits, we believe to be beyond a reasonable doubt, and we think the circumstances we have already alluded to as connected with the secularization of the Mission may fully account for the grants in colonization, which are alleged to have been made by the Governors, of lands which were occupied by the Mission in 1834, when the pueblo of San Francisco was first founded. Again, we have been referred to the proceedings of juridical possession in October, 1835, of the Buri-Buri, or Sanchez Rancho, in which the “ Pueblo of Dolores ” was represented as a colindante, or adjacent landholder, as showing that the pueblo there referred to must have been the unorganized town intended by the secularization laws and regulations to be formed out of the Mission, and not to that which is claimed to have been formed in 1834 at the presidio; because the distance between the presidio square and the northern boundary of the Buri-Buri rancho is greater than the limits which the law assigned to that pretended pueblo, and because there is no evidence whatever that any additional land was ever assigned or dedicated to it. In the first place, we do not think the fact that the pueblo was represented as a colindante, shows that such municipality had any claim to the land next to the northern boundary which was, in that juridical act of possession, assigned to the Buri-Buri rancho. It seems to have been customary in such proceedings to summon all the neighboring landholders, in order that they might witness the act of possession, and see that their own claims were not infringed. We are told that there are cases among the records of the Surveyor General’s office, where landholders were summoned as colindantes, although their lands were many miles distant from the tract to which the juridical possession was to be given. Moreover, there is no evidence to show that a separate pueblo was ever founded at the Mission. There could have been no object in forming one within the general or natural limits which had already been, by law, assigned to another. As already stated, it is much more reasonable to suppose, in the absence of positive evidence to the contrary, that on the final extinction of the Mission, its ungranted lands, which were susceptible of becoming town lands, were regarded as pertaining to the municipality which had been previously established. Moreover, there is abundant evidence to show that the municipal organization at the Mission was the same as that which had previously been established at the presidio, and that both constituted one and the same pueblo. While, therefore, we regard the Buri-Buri documents as in no way conflicting with our view of this casé, we find in them strong evidence that a pueblo was at that time in existence, and that it was officially recognized as having some right or title to land. But it is objected, that if such pueblo had existed since 1834, and it had any title to land, there ought to be found in the archives of the city, or of the Surveyor General, the strongest possible evidence of these facts. Considering that nearly all the old pueblo archives, where such evidence would naturally be looked for, were burned or lost in 1851, and the very imperfect condition of the archives in charge of the Surveyor General, we are only surprised that so much evidence of these facts is still preserved. Of course, those who have sought for a special grant, with boundaries particularly designated by natural or artificial objects, have been disappointed. We think there was no good reason to look for such a grant, as none was required; nor, so far as we can learn, was it usual to issue one. Moreover, the law so expressly designates the manner in which the four leagues were to be laid off, that there could have been no particular necessity of marking them out upon the ground in order to segregate the land from the public domain. If a larger tract had been assigned or granted, some act of grant ought to be shown ; or if the four leagues had been located in a manner different from the usual form, we might expect to find some special designation of boundaries. Again, if a part of the four leagues had been private property, or otherwise exempted from becoming pueblo lands, it may have been desirable to mark out the dividing line between such lands, although such marking out of boundaries was by no means necessary in order to vest a right or title in the pueblo. And again, although not requisite to vest title, it may have been considered important in making other grants, that the exact boundaries of the four square leagues should be marked out as stated in the Report of 1840. The Mexican laws relating to the survey of the four square leagues which the laws assigned to the pueblo (found in Chap. 11, 96, of the “ Ordenanzas de Tierras y Aguas ”) are so very plain and specific that there could have been no possible difficulty in determining the exact boundaries. They are precisely fixed by the law itself. But it is urged that the “ statement ” or report to the Departmental Junta on the sixteenth of January, signed by Jimeno and Arguello, negatives the idea that any lands had been assigned or granted to this or any other pueblo in California. Upon a careful examination of the original “ statement,” we find that the only part of it relating to pueblo lands is a single paragraph, under the head of ejidos, or commons, in which it is stated that none of the pueblos, except Monterey, have their ejidos and propios marked otit (“ tienen demarcadas los ejidos y tierras de propios,” etc). These words are susceptible of several interpretations. They may mean that the two classes of pueblo lands there mentioned had never been specially designated, as they ought to have been, in order to separate them from the other lands of such municipalities and to dedicate them to the objects implied by the names ejidos and propios, which are used; or they may mean that the four square leagues which properly belonged to such pueblo had never been actually marked out on the ground, and “ that, therefore, the Governor, in making concessions of land in the vicinity thereof, had granted the same temporarily, waiting for such regulation, or definitive designation, of town boundaries, before issuing definitive titles.” Again, they may refer to lands outside of the four leagues, and which the old laws say may also be assigned to pueblos, in case it should be deemed advantageous and proper. But neither of these interpretations conflicts, in the slightest degree, with the view which we have taken. On the contrary, they are most strongly confirmatory of that view. If none of the pueblos, except Monterey, had any right or title to land, why mark out their boundaries, or why separate the ejidos and propios? Moreover, if they had none, why was it not proposed to grant lands to such pueblos? But nothing of that kind is recommended, and the only grants spoken of were those already made to individuals in the vicinity of the lands of such municipalities, and which were made as mere temporary concessions, in order to avoid any infringement of the rights or limits of the pueblos. Again, it is said that the very terms of the acts of the Governor and Territorial Deputation, in August and November, 1834, giving to Ayuntamientos a right to grant (dar) lands pertaining to pueblos, and the forming of such municipality at the presidio of San Francisco, show that they had no authority so to do, because article twenty of the former requires report of it to be made for the approbation of the General Congress, and article second of the latter requires it to be reported for the approbation of the Supreme Executive. We do not so understand these articles. That the act for the election of the Ayuntamiento was immediately carried into effect, there can be no question. It seems that the Governor did not think any precedent approval of the Supreme Executive requisite to give it validity. But this, as well as many other acts of the Governor and Deputation, was by the laws required to be submitted to the President, for such measures as he might see fit to take thereon. If approved, it remained as it was; but if disapproved, orders would have been issued to annul and revoke the act. The same remark applies to so much of the Act of August 6th as relates to pueblo lands. But art. twelve of that act contemplated a change of the revenue laws, which could be made only with the sanction of Congress. Hence the references of the act to that body for approval. So far as the establishment of the pueblo of San Francisco and its organization and powers were concerned, we think that the existing laws conferred abundant authority upon the Governor and Deputation. But if the approval of the Supreme Executive were really necessary to give validity to that part of these acts, it will be presumed. (The United States v. Clark, 8 Peters, 452, 463 ; Delassus v. The United States, 9 Id. 134; Patterson v. Jenkins et al. 2 Id. 225, 237; Polk's Lessee v. Wendell, 5 Wheat. 295 ; The United States v. Perchman, 7 Peters, 95-6; Strother v. Lucas, 12 Id. 437.) Counsel have raised various other objections, which we think may be readily answered, and the facts upon which they are founded may be easily reconciled with the view which we have taken; but our limits will prevent us from discussing them, and even from referring to all the laws and authorities from which our opinion has been formed. III. We will next consider the general character of the right or title which a pueblo acquired to the lands which, within the limits of four square leagues, were susceptible of such acquisition. In doing this, we will refer very briefly to the different kinds or classes of pueblo lands, and to the powers of the municipal officers over them. The right or title by which the pueblos held these lands was, of course, in no way dependent upon the powers which the political authority of the State might at any time confer upon the officers of such municipalities. If counsel had observed this distinction, they might, probably, have been saved much time and labor in their arguments and voluminous briefs. Nevertheless, as the character of the powers which such officers were authorized to exercise over such lands may tend to throw some light upon the nature of the title by which they were held, we briefly notice the authorities on this point. The Spanish laws give different names to different portions of land within the limits of a city, pueblo or town, according to the various uses to which they are applied. Thus, there are solares, or house lots of a small size, upon which dwellings, shops, stores, etc., are to be built. There are suertes or sowing grounds, of a larger size, for cultivating or planting, as gardens, vineyards, orchards, etc. There are ejidos, which are quite well described by our word commons, and are lands used in common by the inhabitants of the place for pasture, wood, threshing-ground, etc.; and particular names are assigned to each, according to its particular use. Sometimes additional ejidos were allowed to be taken outside of the town limits. There are also propios or municipal lands, from which revenues are derived to defray the expenses of the municipal administration. There were also other names, such as términos, concejiles, tierras comunes, tierras de labor, tierras de regadío, abrevaderos, dehesas, pastos, montes, plazas, etc., etc. Such were the principal divisions of the land included within the limits of a town, and devoted to the use of its inhabitants. And these divisions, when once made, were not merely nominal, for there were numerous laws relating to each, and having respect to the management, disposition, and use of each; and the provisions which were made for one class were usually very different from those relating to another class. (Escriche Dic. verbo ejidos, propios, etc.; Febrero Mexicano; Sala Mexicano; Recopilacion de Indies, book 4, tit. 7.) The right of the municipal authorities of pueblos to make grants or distributions, in solares and suertes, to individuals and settlers of lands within the limits of such pueblos, seems to have been conferred in very early times, and is very often referred to in the more recent laws and orders as a subsisting right. But certain classes of such lands, as ejidos, etc., could not, in general, be so granted or distributed to individuals for their exclusive use or occupation. Sometimes municipal officers were prohibited from making grants or distributions of any town lands of any class or description without the royal license; and at others, special officers were appointed by the Crown for that purpose. It has been doubted by some if the grants or distributions of the pueblo lands to individuals, made under the earlier Spanish laws, were intended to be grants in full ownership. But we think this question was definitely settled by the law of January 4th, 1813, which makes numerous provisions for distributing or granting in suertes the lands of the pueblos which were not required for ejidos or commons, and declares that, in whatever mode such lands are distributed or granted, it shall be in full ownership—en plena propiedad. (Leyes Vigentes, 57, 59.) There seems to be some difference in the various laws and orders which were issued at different periods, with respect to what particular officers were to make such distributions of lots for building and other purposes. In the cities and larger towns, this duty, at least in early times, devolved up,on the cabildos and corrigedores of such cities and towns. By Neve’s Regulations of 1775, for the establishment of the new pueblos of San José and Los Angeles, the right of distributing the lots was, at least in the beginning, to be exercised by the Governor himself, or by a person commissioned by him for that purpose. But these pueblos were not, for the first two years, to elect any municipal officers, and even after that time, only for such offices as should in the meantime be established. The ordinary Alcaldes, for judicial and police purposes, were to be furnished by the Governor. By the plan of Pitic, in 1789, the lands were to be divided up, and the first distribution made by the engineer and commissioner, who were also to issue the certificates of title. By Nava’s order of 1791, for changing presidios into pueblos, the first distribution of house lots and lands within the limits of the four square leagues, was to be made by the commandants of the presidios; but when a sufficient settlement was made to authorize the municipal organization in place of the military, it is presumed that these duties were to devolve upon the Ayuntamientos, as in other cases. By the law of 1813, the expedientes of titles were to be made by the Ayuntamientos, and referred to the Provincial Deputations for approval. By the law, act or decree of August 6th, 1834, relating to pueblos in California, the Ayuntamientos were to ask that there be marked out or assigned propios and ejidos for each town; and provision was made for granting, en censo enfiteutico, building lots for the erection of houses or dwellings, at a fixed price, and for the leasing of the propios, from which the towns were to derive revenues for the support of the municipal administration. The granting of such house lots and the leasing of such propios were evidently to be made by the Ayuntamientos. The- meaning of the phrase en censo enjiteutico and of el canon, which, by the order of October 26th, 1835, the grantees of such house lots were to pay to the Ayuntamiento of San Franciso for such grants, will be alluded to and explained hereafter. Concessions of house lots were made by the several Alcaldes of San Francisco soon after the formation of that Ayuntamiento; these grants were either fifty or one hundred varas square. In the year 1835, José Joaquin Estadillo applied to the Governor for a grant of two hundred varas square. This petition was referred to the Territorial Deputation, and the committee of that body on municipal lands reported that grants of house lots ought to be limited to one hundred varas square. Accordingly, the Governor, on the twenty-sixth of October, 1835, wrote to the Alcalde, “ that the Ayuntamiento of that pueblo (ese pueblo) may grant lots which do not exceed one hundred varas, for the building of houses in the place called Yerba Buena; ” and “ that you may make it known to the inhabitants of that pueblo, in order that they may not apply with their memorials to this political Government, as it is one of the favors which the Ayuntamiento can grant.” This order of the Governor leads us immediately back to the law or plan of Propios y Arbitrios, of August 6th, 1834. Now, if according to this order, the Ayuntamiento of that pueblo (ese pueblo) could grant lots of land to settlers, and the law of August 6th authorized such Ayuntamiento to impose, at its discretion, a ground rent or canon on such grantees, the right of such pueblo to such lands must have been something more than that of mere temporary occupation and use. According to Escriche, “El canon” means “the annual charge or rent which is paid in recognition of the dominium utile by the person who holds the dominium utile. ( Vide Escriche, verba canon and pension. And for the meaning of the phrase “perteneciente a los propios,” vide Escriche, verba propios and pertinencia.) The meaning of the former has already been explained, and the latter, according to that authority, is “ that which is necessary to, or consequent upon, the principal, and enters with it into the ownership; as -when it is said that any one purchased such an estate with all its appurtenances.” Here, the lands which the Ayuntamientos had a right to grant in lots constituted the principal, and the “ canon perteneciente a los propios ” of “ ese pueblo,” which the Ayuntamiento was authorized to require to be paid as a consideration for such concessions or grants, or an annual rent therefor, was an acknowledgment of the direct dominion which the pueblo, as the owner of such propios, had in the land which was conceded, granted or rented. Again, article two of the law of August 6th, says that these propios, which may be designated to each pueblo, may be rented or granted en censo enjiteutico. Escriche says that “ censo enjiteutico ” is the right which we retain to require of another a certain annual charge or rent, by reason of having transferred to him forever, or for a great length of time, the useful ownership of some real estate, reserving to ourself the direct dominion. Again, the same author says: “ the direct owner or imposer of the censo is he who transfers the useful dominion of the real estate; while the grantee or enjiteutico is he who acquires the useful ownership of the thing charged.” Moreover, it is said that such owner of the dominio utile cannot be ejected from such real estate by the dominio directo, except in case of neglect for several consecutive years to pay the ground tax according to the terms of the grant; that he may impose upon it, without notice to or consent of the dueño directo, any servitude, rent or other charge, and pledge, mortgage or sell it. It would seem from these definitions that pueblos held the direct dominion of these lands, subject to certain trusts and uses, and that the moderate and small portions which they were authorized to grant to individuals, were to be held by the latter as subject to such municipal tax, but in all other respects in absolute ownership, with full right of disposition. These inferences would seem to result from the very words used in these documents. But be this as it may, the right of such municipal officers of this particular pueblo to make such concessions or grants in lots of one hundred varas square was, in 1835, fully recognized by the highest authority in California—the Governor and Territorial Deputation. It appears that the Mexican law of March 20th, 1837, provided that in pueblos having a population under a certain specified standard, Jueces de Paz were to be elected, and were to exercise the powers of Ayuntamientos. But it also appears from the archives that this law was not carried into effect in California until some time in 1839, and that the system was again changed at the end of 1843. By the Governor’s proclamation of November 14th, 1843, which in some respects modifies this organization, Monterey and Los Angeles were to elect Ayuntamientos, composed each of two Alcaldes, four Regidores and one Syndico, and that in the other pueblos, among which San Francisco is named, elections were to be held for the appointment of “ two Alcaldes of first and second nomination.” These new “Alcaldes de nominación,” or Jueces, were to enter upon their duties the first of the following January, and in addition to the judicial powers of the ordinary Alcaldes and the political powers of the Prefects, they were to exercise “ the powers and obligations which the Ayuntamientos have.” (Limantour Land Com. Ex. “ O,” 45, et seq.; Wheeler’s Land Titles; Int. and Schedules.) We think that the documents and authorities to which we have referred are sufficient to show that pueblos had such a right and interest in the lands within their limits that they could distribute, concede, or grant them in lots to individual settlers, subject in this as in all other matters to the instructions and orders which might be given them by the superior authorities, and that the lots so distributed, conceded or granted, were, at least after the law of 1813, passed to the grantees and their heirs and successors in full property and ownership, subject only to the municipal tax or censo. It is said that this Court, in the case of Woodworth v. Fulton, (1 Cal. 295) virtually decided: First, that San Francisco never was a pueblo. Second, that it had no right or title to land which it could transfer or convey to others. Third, that if it had any title, Alcaldes, acting under American authority after the military occupation and conquest of the country, could not convey without authority from the American Government. It is also said that the first two of these grounds were virtually abandoned and overruled by the same Judges in the subsequent case of Reynolds v. West, (1 Cal. 323) in which they sustained the validity of a grant in San Francisco made by a Mexican Alcalde before the war; and that in Cohas v. Raisin (3 Cal. 443) this Court overruled the third ground of the decision of Woodworth v. Fulton, by sustaining a grant made by an American Alcalde during the war with Mexico, and while California was in the military occupation of the United States. Without Examining here the opinions of the .individual Judges in the last case, with respect to the character of the right or title which the pueblo of San Francisco held to the lands within its limits, we will suppose the question which the Court undertook to decide was simply this: Conceding that the pueblo had such a right or title to the lands within its limits that, as held in Reynolds v. West, its Alcalde or municipal officer could convey such land to others in full property, did such power of conveyance continue in such municipal officers during the military occupation of California by the United States, without special authority from the conquering power ? Supposing this to be the only question which was actually passed upon by the Court in that case, we will now proceed to examine the correctness of the conclusions to which the Court arrived. It is a well established principle of international law', that the military occupation of a conquered territory does not, in general, effect any change in the laws of that territory. The political connection between its inhabitants and their former sovereign or State is interrupted or suspended so long as the occupation continues, and is entirely severed on the completion or confirmation of the conquest, whether by treaty of cession or otherwise. The right of the conqueror to govern the enemy’s territory which he may occupy, is not derived from the Constitution or political institutions of his own State, but flows directly from the laws of war, as established by the usage of the world, and confirmed by the writing of publicists and the decisions of Courts; in fine, from the law of nations. It is held by the same code, that, although the conqueror may suspend the laws and entirely displace the former local and civil authorities, or limit or change their powers, this is not usually done; and consequently, that such changes are not to be presumed, but must be proved. Even where the conquest is completed by cession or treaty of peace, although the laws political which bound the country and its inhabitants to the former sovereign are thereby completely abrogated, the municipal laws of the country continue in force until changed by the proper authority; and the existing government and its officers continue to exercise the powers and authority conferred by such laws, so far as they are not inconsistent with the will, expressed or necessarily implied, of the new sovereign. Neither military occupation or complete conquest produces, as a general rule, any change in private property, no matter whether belonging to individuals or munici