It will be observed that at the date when private grants of land were made with some regard for law, the limitation and conditions required by law to be observed were inserted in such grants, viz.: L.C., No. 342-6, S. D., 398; L. C., No. 254-219, S. D., 228-407; L. C., No. 740-372, N. D., 208; L. C., No. 326-359, N. D., 389; Hoffman's Report Land Cases, pp. 35 et seq.; Surveyor-General's letter, dated San Francisco, March 14, 1883, and addressed to Mrs. William S. Jackson.
The Indians and their descendants, who occupied and now occupy lands within the grants above named, as well as grants containing claims of a similar character, are in our opinion possessed and seized of the lands which were and have been and now are in their possession; and they can hold the same against persons claiming the same by virtue of a United States patent, issued upon a confirmed Mexican grant. This leaves to be answered the following question: Can the Indians hold lands for which a United States patent has issued conditioned as set out in the first question, provided no conditions or limitations are contained or expressed in the grant? This is a question beset and surrounded by many difficulties; nor do we deem it necessary to do more than refer to restrictions and limitations contained in the laws of Mexico concerning private grants of lands upon which Indians were residing,—lands which were occupied by them. It is certain that if such lands were granted by a Mexican official, and the authorities omitted to recite the conditions and limitations required by law, and reserve from the operation of such grant such lands as the law conditioned could not be conveyed by such grant, such a grant would and could not take it out of the operation of the law. It could not defeat the rights of those whose rights attached by reason of law. If the officers of the Mexican Government to whom was confided the trust exceeded their authority as regulated by the solemnities and formalities of the law, the courts are bound to take notice of it, and cannot shield those claiming under such title from the necessary consequence of ignorance, carelessness, or arbitrary assumption of power. (Lesse & Vallejo vs. Clark, 3 Cal. 17.)
It is now necessary to inquire how far and to what extent will the issuance to the grantee of the United States patent change or modify this rule. We shall not discuss, as we do not deem it necessary, the decision of the United States Supreme Court, that "a United States patent cannot be attached collaterally, but may be by a direct proceeding," as we did not regard these decisions as in any way affecting the question submitted and now before us.
In 1851, March 3d, Congress passed an act entitled "An act to ascertain and settle the private land-claims in the State of California." By said statute it was enacted "that it shall be the duty of the commission herein provided for to ascertain and report to the Secretary of the Interior the tenure by which the Mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians." (U. S. Statutes at Large, vol. ix. p. 634, sec. 16, Little & Brown's ed.) We have no means of ascertaining whether such a report was made, or, if made, its contents. We have no doubt the commission did their duty and complied with the law, and that their report will be found on file in the Department of the Interior. This report, if in our hands, would greatly aid us in reaching a correct conclusion. By the same act it is further provided that the patent of the United States issued to parties holding Mexican grants are conclusive between the United States and the said claimants only, and shall not affect the interest of that person. (Ib. p. 634.) If the report of the commission established the fact that the Indians were residing upon and occupying lands within the boundaries of claimed grants, which grants have no conditions or limitation inserted therein, that they claimed such lands by virtue of the laws of Mexico, this evidence, with such other evidence as we understand can be furnished, is in our opinion enough to establish under the law, as we regard it, a right in the Indians to hold and occupy such lands against the confirmee or patentee. If, however, no such report has been made, we are of the opinion, if conclusive evidence can be furnished proving that these Indians were in possession of these lands at the time these grants were made by the Mexican authorities, that they continued in possession, and were in possession at the date of the treaty, and have since continued in possession, the law will entitle them to hold such land against all persons claiming under the patent.
We answer the second question propounded as follows:—
By the fifth amendment to the Constitution of the United States it is provided: *** "Nor shall private property be taken for public use without just compensation." Would the taking of lands belonging to citizens for the purpose of giving the same to Indians be such a public use as is contemplated by the Constitution? We are of the opinion it would not. (Walther vs. Warner, 25 Mo. 277; Board of Education vs. Hockman, 48 Mo. 243; Buffalo & New York Railroad Company vs. Brannan, 9 N.Y. 100; Bradley vs. New York, &c. Railroad Company, 21 Conn. 294; Fisher vs. Horicon Iron Work, &c. Company, 10 Wis. 354; New Orleans & Railroad Company vs. Railroad Company, 53 Ala. 211; Conn vs. Horrigan, 2 Allen, 159; Chambers vs. Sattuler, 40 Cal. 497; Railroad Company vs. City of Stockton, 41 Cal. 149; Channel Company vs. Railroad Company, 51 Cal. 269; Gilmer vs. Lime Point, 18 Cal. 229; Conn vs. Tewksbury, 11 Metcalf, 55; Manufacturing Company vs. Head, 56 N.H. 386; Olmstead vs. Camp, 33 Conn. 532; Buckman vs. Saratoga Railroad Company, 3 Paige Ch. 45; Memphis Freight Company vs. Memphis, 4 Cold. 419; Enfield Toll Bridge Company vs. Hartford Railroad Company, 17 Conn. 42.)
We are, very respectfully,
Brunson & Wells, Attorneys-at-Law.
Abbot Kinney, Esq., Los Angeles, Cal.