Board of County Commissioners v. Central Colorado Improvement Co.

2 Colo. 628 | Colo. | 1875

Hallett, C. J.

The question to be determined in this case is, whether the land upon which the, tax was levied was, at the date of the levy, the property of the United States, and therefore exempt from taxation. It appears that a very large tract of land, including that taxed, was, in the year 1843, granted by the Mexican government to G-ervacio Nolan, and that our government subsequently acquired dominion of the country in which that tract is located, now a portion of the county of Pueblo. In the treaty of Guadaloupe Hidalgo (9 Stat. at Large, 929), titles existing under Mexican law were recognized, and it was declared that property of every kind should be inviolably respected. Under this treaty the title of Nolan to the entire tract, if valid at the time it was created, or subsequently perfected under Mexican law, would be unassailable. It is, however, contended that the grant was excessive in quantity, the governor of Mexico having authority, under the act of 1824 and the regulations of 1828, to convey eleven leagues only. U. S. v. Vallejo, 1 Black, 541; U. S. v. Vigil, 13 Wall. 449. The force of this objection was fully appreciated by the owner of the title, if we may judge from the circumstance that he was unwilling to rely upon his title without the aid of congress. On the 1st of July, 1870 (16 Stat. at Large, 646), congress confirmed the grant to the extent of eleven leagues, to be located within the bounds of the original grant, deducting therefrom lands occupied by actual settlers, and allowing the grantee to take other lands elsewhere in lieu of those claimed by the settlers. The Mexican title thus recognized, if invalid before that time, was no longer so, if the grantee or his assignee should accept the provisions of the act, and it appears from the agreed case that this has been done. Whatever may be said of the title given by the Mexican government, we think that the effect of this act of confirmation is to establish the title to the eleven leagues therein mentioned, from the date of the grant by the Mexican government. The language of the act can only be applied to an existing grant, thus excluding the notion that congress intended to create a new estate. The fact that congress assumed to act in the premises may be cited to show that the general government had some interest in the land, but this may be conceded without abandoning the position assumed.

In Fremont’s Case, 17 How. 542, a Mexican grant of 10 leagues of land, to be located in a certain district of country, was said to convey a vested interest in the quantity of land mentioned in the grant, although no land was specifically described. So here, congress appears to have acted upon the assumption that the grant to Nolan was good for 11 leagues, to be located within the bounds of the original claim, and this action of congress is not a grant per se, but a recognition of a pre-existing right in the grantee, conferred by the Mexican government. Consistently with this theory, it may be maintained that the legal title remains in the general government, until all conditions of the act of congress have been complied with, while the beneficial estate in the land is vested in the citizen, giving to the local government a right to collect taxes assessed upon it. Witherspoon v. Duncan, 4 Wall. 210.

In this view, the act of congress was necessary not to create the estate, but to attach the grant to a particular tract by prescribing the manner of locating it. It matters not that in certain contingencies, as for instance, if the grantee had refused to accept the provisions of the act of congress, and had failed to maintain, or had abandoned his Mexican title, the land would have reverted to the United States. In a recent case (U. P. R. Co. v. McShane), the supreme court held that a contingent right in the government to make another grant upon the failure of the first grantee to make sale of the land within a time specified, was not sufficient to exempt the land from taxation. Nor is the circumstance that all tbe conditions of tbe act confirming tbe grant had not been performed at tbe time when tbe tax was levied at all significant as to tbe right of tbe Territory to collect revenue from tbe land. Conceding all these things, tbe controlling fact remains that before tbe tax was levied, tbe land bad been identified as the subject of tbe grant, and it was held by a title which accrued long before tbe United States could have acquired an interest in it. By confirming tbe grant congress recognized the title as paramount to that of tbe general government, and the location having been made, appellee bolds not from tbe United States, but from tbe prior owner of the soil. Tbe fact that appellee claimed at first too much land, and that a portion was afterward withdrawn upon tbe suggestion of tbe commissioner of tbe general land office, does not materially affect tbe question. Payment was not made upon tbe 920 acres withdrawn, and as to tbe remainder of tbe location, in view of all tbe facts, it is impossible to say that it was at tbe time when the tax was levied, or has ever been public land of the United States. In this feature the case is distinguishable from Railway Co. v. Prescott, 16 Wall. 603, and U. P. R. Co. v. McShane, decided at the present term, where a grant was made by the United States upon certain conditions, to be performed by the grantee. Until those conditions were performed, it was thought that no title could pass, and the land remained in the United States, and of course it was exempt from taxation. The case at bar is altogether different, inasmuch as appellee’s title is derived from the Mexican government, and not from the United States. Whitney v. Gunderson, 31 Wis. 359, is more in point, but we are not disposed to follow it. The view here suggested has been fully adopted in California, and appears to rest upon a sound principle. People v. Crockett, 33 Cal. 150.

Tbe judgment of the district court is reversed, and tbe cause remanded, with directions to tbe court below to enter judgment for appellant.

Reversed.