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entirely dependent on the mere pleasure of those who might be in power, - such as might be rejected without giving just cause of imputation against the faith of those in office.” 17

The cases of United States o. Santa Fé, 165 U. S. 675, United States v. Sandoval, 167 U. S. 278, and Zia v. United States, 168 U. S. 198, decided under the Act of March 3, 1891,18 are all examples of situations where the claimant's interests were of such a contingent or uncertain nature that they could not have been judicially enforced in the courts of the ceding state at the time of cession. The first case involved the claim of the municipality of Santa Fé to the customary four square leagues, measured from the center of the plaza of the town, which were ordinarily granted to municipalities by Spanish officials, but which no records existed to show had been actually granted to the town of Santa Fé. The land in question was also claimed in part by other Spanish adverse grantees as well as by the United States Government which had established a military post within its limits. The second case involved an interest of the same character. In each of these cases, involving difficult determinations as to the nature of the interest concerned, the court came to the conclusion that inasmuch as the claim asserted could not have been judicially enforced in the Mexican courts at the time of cession, it would not be upheld in the United States courts. The case of Zia v. United States, 168 U. S. 198, in

17 A legislative statement of what is believed to constitute the true rule of international law on this point will be found in the first provision of Sec. 18 of the Act of March 3, 1891, setting up a board of land commissioners to pass upon claims to land in California by virtue of any Spanish or Mexican grant or concession made prior to the acquisition of the territory by the United States. The enactment reads as follows: "First. No claim shall be allowed that shall not appear to be upon a title lawfully and regularly derived from the Government of Spain or Mexico, or from any of the States of the Republic of Mexico having lawful authority to make grants of land, and one that if not then complete and perfect at the date of the acquisition of the territory by the United States, the claimant would have had a lawful right to make perfect had the territory not been acquired by the United States, and that the United States are bound, upon the principles of public law, or by the provisions of the treaty of cession, to respect and permit to become complete and perfect if the same was not at said date already complete and perfect."

18 For the text of this act, see the preceding note.

19 In Ainsa v. United States, 161 U. S., 208 at 223, the court said: But under the Act of March 3, 1891, it must appear, in order to the confirmation of a grant

volved the claim of the pueblo of Zia to the valley of the Holy Ghost Spring in New Mexico, the claimants asserting that from the founding of the pueblo they had considered it as their common pasture ground, and that they had been granted express permission to pasture their cattle therein by the Spanish Governor and Captain General in 1766. The United States Supreme Court, however, held that the claimants had acquired no more than a revocable license; and since this could not be enforced against the Mexican Government prior to the cession of the territory to the United States, the claimants held no interest which United States courts would recognize. These cases will be enough, perhaps, to show that a change of sovereignty does sometimes injure contingent interests of property claimants.

On the other hand, a real property right, even though inchoate or merely equitable, will be enforced by the courts of the receiving state. The leading case on this point is Delassus v. United States (9 Pet. 117). In this case the claimant's father held a concession of land in Upper Louisiana granted by the Spanish Government in 1795. At the time of the cession of Louisiana to the United States no legal title had passed; yet Chief Justice Marshall, who decided the case in the United States Supreme Court in 1835, confirmed the plaintiff's title to the land, since, as he said, “The concession is unconditional; the land was regularly surveyed, and the party put into possession.” Everything had been done before the date of cession to perfect the claimant's concession, which would be binding under the Spanish law; all that was lacking was a bare legal title, which the claimant could have demanded from the Spanish Government as of right. The United States Supreme Court, therefore, held that the plaintiff should not be deprived of his property rights by the fact that at the time of cession he held no legal title. “No principle is better settled in this country," said Chief Justice Marshall, “than that an inchoate title to lands is property.” 20 by the Court of Private Land Claims, not only that the title was lawfully and regularly derived, but that, iî the grant were not complete and perfect, the claimant could, by right and not by grace, have demanded that it should be made perfect by the former government, had the territory not been acquired by the United States."

20 This rule is laid down in many cases. For instance, in Mitchel o.


The second group of cases comprises those of claims to land held under a conditional grant. Here the succeeding government must clearly confirm title where the condition has been performed before cession; as clearly it may refuse to confirm grants where the time for the performance of the condition has expired before the cession, and the condition, whether express or implied, has been unperformed. The case of most difficulty is where at the time of cession the condition has been unperformed but the time allowed for performance has not yet expired. If the claimant in that case perform the condition after cession, may he then demand a confirmation of title from the new sovereign as of right; or may the new sovereign refuse to confirm such titles, on the ground that at the time of cession, the claimant's interest was a mere contingent expectancy? The true rule of law would seem to be that the receiving state should have the right at the time of cession to declare that it will not allow under its jurisdiction and law the further completion of title by the performance of unfulfilled conditions, and will therefore grant titles only to such claimants as are at the time of cession substantially owners of the interest claimed. Where no such declaration is made, however, it would seem that the receiving state should be compelled to perfect the titles of claimants who have in good faith performed after cession the unfulfilled conditions of their grants before the expiration of the time allowed in the condition.

United States, 9 Pet. 711, where the question involved lands granted to the claimants by certain Indians and held without legal title, the court at p. 733 says: “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 partakes of the one character 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 or proceedings under them, or a treaty, acquired a right which would have been valid, if the territory had remained under the dominion and in possession of Spain."

Such would seem to be the doctrine acted upon by the United States. In the treaty of Guadalupe Hidalgo between Mexico and the United States in 1848, the United States Government struck out Article 10 as proposed by the commissioners. “That article," says Mr. Justice Brewer in Cessna v. United States, 169 U. S. 165 at 186, "not only contemplated binding this government to respect all grants which would have been recognized as valid by the Government of Mexico if no cession had been made, but also proposed to give to grantees who had failed to perform the conditions of their grants, and whose failure to perform might be deemed to have avoided the grants, further time to perform the conditions. By the rejection of this article this government distinctly declared that it did not propose to recognize any grants which were not at the time of the treaty of cession recognized by the Mexican Government as valid or any whose conditions, either precedent or subsequent, had not been fully performed.” "In this respect," the court adds, "the action taken was in harmony with the general rule of international law." 21

The principles governing grants on condition are illustrated by numerous United States decisions, particularly those affecting land granted in Florida by the Spanish Government before 1819. In United States v. Kingsley, 12 Pet. 476, a grant in 1816, on condition that the grantee build a mill on the land granted within six months, was refused recognition by the United States Supreme Court in 1838 on the ground that the express condition was never performed. This was followed

21 An example of a treaty expressly allowing the fulfillment of unperformed conditions after cession is the treaty of 1819 between Spain and the United States whereby the former ceded to the latter the territories of East and West Florida. Art. VIII of that treaty says:

"All the grants of land made before the 24th of January, 1818, by His Catholic Majesty, or by his lawful authorities, in the said territories ceded by His Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty. But the owners in possession of such lands, who, by reason of the recent circumstances of the Spanish nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the terms limited in the same, respectively, from the date of this treaty; in default of which the said grants shall be null and void."

by a number of similar "mill grant" cases. In United States o. Wiggins, 14 Pet. 334, a grant which contained no express condition was refused confirmation by the United States Supreme Court because of the nonperformance of a condition improvement and settlement) implied in the grant under the general regulations covering land grants laid down by the Spanish governor. On the other hand, where the compliance with the condition amounts to nothing more than a mere formality, the courts will frequently allow the performance of the condition after cession.22

The United States Supreme Court has gone so far as to suggest that even where the claimant under a conditional grant has failed to perform the conditions contained in the grant, the receiving state should confirm his title if the reason for nonperformance is due to the acts of the ceding or receiving state itself. In the case of United States v. Arredondo, 6 Pet. 291, the grant was made upon condition that the grantees should settle and improve the land in three years, upon the failure to perform which the grant should become void, and upon the further condition that they should settle upon it 200 Spanish families; no time was fixed for the performance of the latter condition. The first condition was duly performed within the time set; the second was never performed. Yet the court confirmed title in the grantees, holding that performance of the second condition was excused, because it was rendered probably impossible

» In United States v. Clarke, 19 Pet. 167, the court confirmed a Spanish grant where the survey, which was necessary in order to confirm the Spanish title, had not been made until after the time of cession, the court affirming that a concession on condition becomes absolute when the condition is performed." This case, however, should be read in the light of Article VIII of the treaty of 1819 between Spain and the United States (quoted in the preceding note). See to the same effect United States v. Hanson, 16 Pet. 194, where the court allowed the claimant to have a public survey of his land made after the cession, where the grant was specific and definite, and contained no conditions which had not been performed.

One must be careful to distinguish this group of cases, where a perfectly definite tract of land has been granted, but the public surveyor has not yet fixed the boundary marks at the time of the cession, from the group of cases, to be next considered, where the grant conveys a specific number of acres or quantity of land without defining or fixing the position of the land, and at the time of cession the land has not yet been selected or surveyed.

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