Carpentier v. Montgomery

ERROR to the Circuit Court for the District of California.

Carpentier brought suit against Montgomery and a number of other defendants to recover certain lands in their possession, lying on the east side of the bay of San Francisco, and described in the complaint. Answers were put in by the defendants, severally claiming distinct portions of the lands.

On the trial the plaintiff deraigned title under the children of Maria Teodora Peralta, a deceased daughter of Luis Peralta, and proved mesne conveyances from them to the extent of an undivided five and a half ninths of one-ninth of the land in question. But whether the children of Maria Teodora Peralta were entitled to any estate in the lands, upon which the plaintiff could sustain an action of ejectment against the defendants, was the question.

Luis Peralta, the father of Maria Teodora, died in August, 1851, in possession of the rancho called San Antonio (of which the premises in question were a part), leaving four sons and four daughters, and several grandchildren by a de ceased daughter, the said Maria Teodora. The four sons presented their petition for the confirmation of their claim for the entire rancho to the board of commissioners, organized under the act of Congress of March 3d, 1851, founding their claim upon certain documents establishing their father's right to the rancho, and upon an alleged devise thereof to them. Upon this petition the rancho was confirmed to the said sons in divided parcels, the portion embracing the premises in question being confirmed to Domingo and Vincente Peralta by final decree of this court in December Term, 1856. No final approved survey, however, took place under the confirmation. The defendants held under the confirmees.

On the trial the plaintiff showed by documentary evidence from the archives, that on 20th June, 1820, Luis Peralta, who was then sergeant of the presidio near San Francisco, and commissioner of the pueblo of San Jos e, presented a petition to Pablo Vincente de Sola, then Governor of California, in which he stated that, 'at the distance of eight leagues from the mission of San Jos e, in a northerly or northwesterly course along the coast, there is a creek named by the reverend fathers of the aforesaid mission, San Leandro, and from this to a little hill adjoining the sea-beach, in the same direction and along the coast, there may be four or five leagues, more or less (or about), which place and land he asks and solicits may be granted to him that he may establish a rancho, and place thereon all his goods and chattels.'

Governor Sola, on the 3d of August, 1820, ordered Captain Luis Antonio de Arguello, commandant of the presidio, to appoint an officer to put Sergeant Peralta 'in possession of the lands petitioned for, giving previous notice of it to the reverend fathers, the missionaries of the missions bordering on said land, and then place landmarks on the four points of the compass, that it may be known at all times, the extent of said lands which have been granted to him.'

On the 10th, Arguello appointed Lieutenant Martinez to execute this decree.

On the 16th, Father Duran certified, on behalf of the mission of San Jos e, that there was no objection, on the part of that mission, to the grant asked for by Paralta.

On the same day Martinez certified that, having given due notice, he 'proceeded to the said place, and in presence of the two witnesses, Nicholas Berreyesa and Juan Miranda, the boundaries which separate his (Peralta's) land were marked out to him, to wit: The deep creek called San Leandro, and, at a distance from this (say about five leagues), there are two small mountains (cerritos). The first is close to the beach; next to it follows that of San Antonio, serving as boundaries, the rivulet which issues from the mountain ranges, and runs along the foot of said small mountain of San Antonio, dividing or separating the land; and, at the entrance of the little gulch, there is a rock elevating itself in the form of a monument, and looking towards the north. On both boundaries were fixed firm landmarks; and, inasmuch as this individual does not prejudice any of the adjoining neighbors, and by virtue of the authority on me conferred, and in the name of our Catholic Monarch, Senor Don Ferdinand VII (whom God preserve), I put in possession of the said land the above-named Luis Peralta.'

This return was signed by him and the witnesses in testimony of the facts.

On the 30th of August Governor Sola, reciting that Father Chabot, of the mission of San Francisco, alleged that Don Ignatio Martinez had not fulfilled his decree of the 3d of August, and that through this fault possession had been given to Peralta of some lands pertaining to said mission, ordered that these should be withdrawn from those which were assigned to Peralta, and remain, as they were before, in favor of the neophytes of said mission.

In a paper dated September 14th, 1820, Fathers Chabot and Ordaz, on behalf of the mission, certified that inasmuch as the mission had had possession since the month of November of the previous year, granted by the superior government for agricultural purposes and the feeding of sheep, as far as a rivulet at the distance from the house of the rancho some three and a half to four leagues in the direction of San Jos e, there was 'no objection to set the boundaries of Sergeant Luis Peralta from that place up to the creek called San Leandro.'

On the 16th of September, 1820, Lieutenant Martinez reported that, in the presence of the same witnesses, he had executed the order of the governor of the 30th August, 'by appointing to him (Peralta) anew the boundaries at about one and a half league from the hill of San Antonio towards that part of San Leandro serving as the dividing-line, a rivulet (the Temescal) issuing from the mountain or hill-range, which runs down to the beach, where there is a willow grove, fixing in said place the four landmarks, which shall be valid, and not those that were designated before on the little mountain of San Antonio.'

On the 18th October, 1822, Governor Sola certified that 'this day was issued, in favor of Sergeant Luis Peralta, by the governor of this province, the certifying document for the land which had been granted to him, as appears in this folio, by the writ of possession, which the lieutenant of his company, Don Ignacio Martinez, gave him agreeably to an order issued him by the government.'

The certifying document recited the original petition of Peralta, the reclamation of the fathers of the mission, the appointment of Martinez to give possession, the performance of that order, 'by designating the boundaries, about one league and a half from the small hill of San Antonio, towards the part of the San Leandro Creek serving as a dividing-place, a small brook which falls from the mountains or heights running towards the beach, where ends a willow brake, establishing on said land the four landmarks;' and concluded by saying that this document was given 'in order that, in all time to come, it may be attested that this concession to said Sergeant Luis Peralta was made in remuneration of forty years of service in the military career.'

On the 14th of October, 1820, Sergeant Peralta addressed a letter to his captain, Arguello, complaining of having been dispossessed of the land which had been assigned to him. In that letter he insisted that he had a right to the land, and declared that he yielded up the possession only because he was compelled to do so. He replied also to the allegations of the fathers, that he did not need so much land, by saying that 'five leagues does not seem to me much, in a narrow tract, as you know it is, from the beach to the mountain range,' &c. On 23d June, 1821, Captain Arguello transmitted the memorial of Peralta to the governor, gave the history of Peralta's application, insisted upon his right to the land, and stated his claim upon the government for long and meritorious services as a soldier.

On the 15th of May, 1823, Peralta petitioned the governor directly, praying that 'the land may be returned' to him, showing that the reverend father of the mission had practiced a fraud to induce the governor to dispossess him, by which he says, 'I was deprived of the best land which had been granted to me.' He again refuted the charge that the tract was too large, by saying, 'though it appears to be large, it is not so, for two reasons-1st, because it is situated on the coast, and the shore between the beach and the top of the mountains (La Sierra) is too narrow; 2d, because in the space lying from San Leandro to the said cerrito redondo there is a great part of it forming high lands, revines, and inlets, which are not suitable for the purpose,' &c. Upon this petition, on the 30th November, 1823, the following order or decision was made:

'Let the land which by order of my predecessor, Senor Don Pablo Vincente Sola, was taken from this claimant, after having oeen granted him and possession given, for that reason be returned to him. He shall apply with this decree to the judge then commissioned (Lieutenant Martinez) for the said possession, that he may comply with it. When this be done, he shall annex all the proceedings to the expediente already formed.

'ARGUELLO.'

On the 24th December, 1824, Martinez, who was the person formerly commissioned as the judge to deliver the possession, certified that 'in compliance with the foregoing superior decree of the superior chief of the province, Captain Don Luis Antonio Arguello, the land which by order of Colonel Don Pable Vincente de Sola had been taken from Sergeant Luis Peralta, has hereby been returned to him, and he has newly been put in possession of the place called Cerrito de San Antonio and the rivulet which crosses the place to the coast where is a rock looking to the north; said Peralta has received lawful possession in presence of the same witnesses who assisted when the first possession was given to him.'

On the 7th of October, 1827, Governor Echandia issued an order requiring every individual in possession of a rancho to make a statement describing the boundaries thereof, annexing thereto the title of his possession and the foundation he may have for such possession.

In pursuance thereof Peralta returned 'a description showing the extent of the lands granted me and of which I was placed in possession since the year 1820, to wit: Along the coast of the mission of San Jos e, in a northwesterly course, there is a deep creek called San Leandro, forming the dividing boundary of said mission of San Jos e, thence to a small, round mountain called San Antonio, the dividing boundary with my neighbor, Francisco Castro, which space is a little over four leagues long, and as it is the narrowest portion of the coast, it at most contains half a league in breadth, from the mountain to the sea.'

On the 11th of February, 1844, Ignacio Peralta, a son of Luis, applied to Governor Micheltorena, on behalf of his father, for a new title, stating that the title-papers had been mislaid, and describing the land as the Rancho San Antonio, situated between the mission of San Jos e and San Pablo Point, which was granted to his father by Senor Don Pablo Vincente de Sola, and of which he was put in possession by Lieutenant Don Ignacio Martinez by superior order, any other authority being at that time unknown. The new grant to be 'to the extent expressed by the document of Governor Sola as plat of survey (design) that accompanies it, including the range of hill up to it summit, and thence to the sea.'

The governor referred this petition to Jimeno, then Secretary of State, who reported that the land shown by the plat presented had been granted twenty-two years previously, and had been occupied by the grantee since 1819, and that there was no objection whatever to the grant of a new title. The governor ordered the title to issue on the 13th of February. An instrument was accordingly drawn, which was found in the archives, declaring that Luis Peralta was 'the owner in fee of said land, which is bounded as follows, namely: On the southeast by the creek of San Leandro, on the northwest by the creek of Los Cerritos de San Antonio (the small hills of San Antonio), on the southwest by the sea, and on the northeast by the tops of the hill range,' and directing that this expediente be submitted to the Departmental Assembly. But this paper was not signed by the governor.

The plaintiff gave also parol testimony tending to prove the following facts:

That by the grant of Sola, and the other documents connected with and preceding that grant, and which had been given in evidence, the natural objects described in the original concession, and in the possession given by Martinez, could be ascertained upon the land, and that the objects called for in the second, and reduced or limited possession ordered and given on the representation of the fathers of the mission of San Francisco, and which was intended to be covered by, and included in, the final grant of Sola, could also be ascertained on the ground.

That the original possession given by Martinez was bounded by the San Leandro Creek on the south, southeast, and east, and the crest of the hills to the gap easterly of the monumental rock looking to the north, mentioned in the act or certificate of possession of Martinez; on the north and northwesterly by the creek of the cerrito of San Antonio, and on the west by the bay of San Francisco.

That the boundaries of the restricted possession were the San Leandro Creek on the south, southeast, and east, the Temescal Creek on the north and northwest, and the bay of San Francisco on the west, and that the possession was reduced to the line of the Temescal Creek.

That the sources of the San Leandro Creek and Temescal Creek spring near each other, with merely a narrow dividing ridge between them, not more than a quarter of a mile from the source of the one to the other, and that they both empty into the bay of San Francisco.

He also introduced the evidence of witnesses tending to prove the delivery of possession of the rancho of San Antonio to Luis Peralta, by Lieutenant Martinez, in 1820, and that possession was formally given, and the boundaries designated by Martinez, in accordance with the description thereof, first herein above set forth.

The plaintiff having rested his case the defendants moved the court to strike out all the evidence introduced by the plaintiff, on the ground that the same did not establish nor tend to establish a right in the plaintiff to a verdict.

The court having heard counsel thereon denied the motion, on the ground that the same was irregular in practice, and an evasion of the rule against nonsuits; but stated that, if the defendants would submit their case without evidence on their part, it would instruct the jury to render a verdict for the defendants, to which the plaintiff excepted.

The defendants thereupon declined to offer any evidence on their part, and the evidence was closed.

And the court thereupon, at the request of the defendants, instructed the jury that the plaintiff had failed to establish a case entitling him to a verdict, and that it was their duty to return a general verdict for the defendants, to which decision and instruction the plaintiff excepted. The jury thereupon rendered their verdict for the defendants; and judgment having been entered thereon, the plaintiff brought the case here on error.

Messrs. M. Blair and F. A. Dick, for the plaintiff in error, insisted that Luis Peralta's title was a perfect title under the Spanish and Mexican laws, and was protected by the treaty of Guadalupe Hidalgo, and that the confirmation of it, on the application of the sons, could not add to its strength, and could not take away the right of the daughters as coheirs of their father; and, whether so or not, that the confirmation of the title enured to the benefit of those really entitled under the original grant, their heirs and assigns; and that as no devise from Luis to his sons was exhibited on the trial of this cause, that the plaintiff was entitled to recover under the hereditary right of Maria Teodora's children.

Mr. S. O. Houghton, contra, for the defendants, denied that the title of Luis Peralta was a perfect title; and contended that even if it was, the claim of the daughters could not avail in an action of ejectment against the award of the commissioners in favor of the sons of Luis, which gave them the legal title.

Mr. Justice BRADLEY delivered the opinion of the court.