Botiller v. Dominguez

This is a writ of error to the supreme court of the state of California. The action was in the nature of ejectment, brought in the superior court of the county of Los Angeles by Dominga Dominguez against Brigido Botiller and others, to recover possession of a tract of land situated in said county, known as 'Rancho Las Virgenes.' The title of the plaintiff was a grant claimed to have been made by the government of Mexico to Nemecio Dominguez and Domingo Carrillo, on the 1st day of October, 1834, but no claim under this grant had ever been presented for confirmation to the board of land commissioners, appointed under the act of congress of March 3, 1851, (9 St. 631,) 'to ascertain and settle the private land claims in the state of California,' and no patent had ever issued from the United States to any one for the land, or for any part of it. It appeared that the defendants, Botiller and others, prior to the commencement of the action, had settled upon and severally were in the occupancy of the respective parcels or tracts of land claimed by them, and had improved and cultivated the same, and were in the possession thereof, with the purpose and intention of holding and improving the several tracts of land so severally held, as pre-emption or homestead settlers, claiming the same to be public lands of the United States. It was shown that they were competent and proper persons to make pre-emptions or nomestead claims, and that the land in controversy was within the territorial limits of she so-called 'Rancho Las Virgenes.' On this state of facts the judge of the inferior court instructed the jury as follows: 'First. It is made my duty to construe the written instruments received in evidence in this case, and to declare their legal effect. I therefore instruct you that the documents, plaintiff's Exhibits A and B, and the acts evidenced thereby under the Mexican law in force at the time they were made, constituted a perfect grant, and operated to vest in the grantees therein named all the right, title, and interest of the Mexican government. They vested as much title under the laws of Mexico in the grantee as does a patent from the United States to the patentee under our system of government. Second. The title to the land by grant from Mexico being perfect at the time of the acquisition of California by the United States, the grantee was not compelled to submit the same for confirmation to the board of commissioners, established by the act of congress of March 3, 1851, nor did the grantee, Nemecio Dominguez, forfeit the land described in the grant by a failure to present his claim for confirmation before said board of commissioners, and the title so acquired by the grantee may be asserted by him or his successor in interest in the courts of this country.' To this ruling and instruction the defendants excepted. Judgment was rendered for plaintiff, which was affirmed by the supreme court of the state of California, and to that judgment this writ of error is directed. 13 Pac. Rep. 685.

J. M. Gitchell, for plaintiffs in error.

A. L. Rhodes, for defendant in error.

[Argument of Counsel from pages 239-242 intentionally omitted]

MILLER, J.