ERROR to the District Court of the United States for the Eastern District of Texas; the case being essentially thus: By the Mexican colonization law of August 18th, 1824, and the legislation of Coahuila and Texas authorized by it, the Governor of the State just mentioned had power to grant lands for colonization; but it was declared that the territory comprised within twenty leagues of the boundaries of a foreign nation, or within ten leagues of the sea-coast, could not be colonized without the previous approval of the supreme executive power.
In this state of the law, one Miguel Arceniga, a resident of Bexar, made his petition for concession of eleven leagues of land. The petition was dated March 31st, 1831, and the concession of the Governor, granting the quantity asked for, was made on the 6th of April of the same year, accompanied with a direction to the proper local officers to give possession of the land to the grantee, and to issue to him the proper title. Neither document designated the land. A petition to the alcalde, for survey, possession, and title, of the eleven leagues, in the vicinity of the 'Red River of the Nachitoches,' was followed by the appropriate action of the officer for that purpose, and on the 22d of September, 1835, by the issue to the grantee of a formal certificate of possession and title of the land thus situated. This was before the annexation of Texas to the United States, and the land thus granted laid within twenty leagues of what was then the northern boundary between Texas and the United States. Texas having become part of the Union, one Christy, claiming under the grantee, brought trespass to try title for these eleven leagues, now situated in Harrison County, Texas.
The court ruled that the grant being issued without the previous assent or approval of the supreme executive power of Mexico, was illegal and void, and excluded it from the jury. Thereupon, the jury found for the defendant. The alleged error in this ruling was the only question before this court.
Mr. T. Ewing, Jr., for the plaintiff in error:
The title, on its face, being valid and complete-its genuineness unquestioned-it comes within the principle declared by this court in Fuentes v. United States, that 'the public acts of public officers, importing to be exercised by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given, or subsequently ratified;' and in Delassus v. United States, that the concession, being regular in form and made by the proper officer, is prim a facie evidence that it was within the power of the officer to make it, and that he who alleges that an officer intrusted with an important duty has violated it, must show it.
The chief object of the colonization law, as is known, was to encourage the immigration of foreigners, and their establishment in colonies with liberal bounties of lands. It was decided in Arguello v. United States, and affirmed in Cruz Cervantes v. The Same, that this law did not restrict the distribution by the States to Mexican citizens of public lands within the littoral and the frontier leagues. As there is no other provision of the constitution or laws of Mexico requiring the assent of the national executive to the disposition of vacant lands in Coahuila and Texas, it was therefore settled by those cases that the State had the power, without the assent of the supreme executive, to make the grant in question.
Mr. Adams and Mr. Leech, contra:
The invalidity and nullity of the Mexican grants within the ten coast, and twenty border, leagues of Texas, unless the assent of the supreme executive of Mexico was affirmatively shown to such grants, have been repeatedly and firmly settled by the Supreme Court of Texas, in a series of cases.
These decisions have, for years, been acquiesced in by the bar and the people, and constitute a rule of property for a very large portion of the State.
The plaintiff in this action undertook a course of litigation to overthrow these decisions; but they have been reiterated and affirmed both in the Supreme Court of Texas, and in this court, in League v. Egery, and Foote v. Egery, until it is not possible to conceive a more fixed and settled course of decisions and rule of property than the nullity of grants of this character.
Reply: 1. All the matters necessary to a consideration of the question do not seem to have been presented to this court in League v. Egery, and Foote v. Egery, acquiescing in the Texas decisions, and were not considered in its opinion when pronounced.