21 P. 177 | Ariz. | 1889
This is a civil suit in which plaintiff alleges that defendant has unlawfully inclosed a portion of the public lands in violation of sections 1 and 2 of the act entitled “An act to prevent unlawful occupancy of the public lands,” approved February 25, 1885. The defendant admits the construction of a fence at the place alleged, but denies that the lands inclosed are public lands, and alleges that they are within the boundaries of the private land claim San Rafael de la Zanja, a Mexican grant, which has been filed with the surveyor-general of Arizona, as is provided for in the act of July 15, 1870, (16 Stats, at Large, 304). There it is provided that it shall be the duty of the surveyor-general of Arizona, under such instructions as may be given by the secretary of the interior, to ascertain and report upon the origin, nature, character, and extent of the claims to lands under the laws, usages, and customs of Spain and Mexico; and for this purpose he shall have all the powers conferred, and shall perform all the duties enjoined, upon the surveyor-general of New Mexico by the eighth section of the act entitled “An act to establish the offices of surveyor-general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers, and for other purposes,” approved July 22, 1854, and his report shall be laid before Congress for such action thereon as shall be deemed just and proper. In the petition the claimants urged or laid claim to about sixteen square leagues, or about 117,000 acres, of land. As evidence thereof they filed with their petition title papers called an “expediente.” The surveyor-general reported that the claim was valid, and that the amount of land conveyed was four square leagues,—three in a line north and south, and one to the west of the southern square league. His report was laid before Congress, where the same awaits action. It is insisted that the report of the surveyor-general is not competent evidence for any purpose, and it is so held in Pinkerton v. Ledoux, 129 U. S. 346, 9 Sup. C t. Rep. 399.
This ease has been argued by counsel upon the assumption that the act of 1870 above quoted is the same as the act of 1854, referred to in the act of 1870. They, however, are not the same, but differ very materially. In the former law it was provided: “And until the final action of Congress on
Concessions or grants of land by Mexican governors were of three kinds. They were concessions or grants by,—1.
In this case a grant of four sitios is asked for, and nowhere throughout the whole expediente is any other quantity mentioned, and in the final decree the habendum clause grants
It is urged that the words of: limitation, viz., four sitios, are to be disregarded as falsa demonstrate non nocet, and the survey be treated as measuring the land conveyed, and, as that includes sixteen, instead of four, sitios, that must govern. We are aware of the principle invoked, that where there is a doubt as to what is conveyed, and where the boundary is certain and disagrees with the quantity mentioned, the latter is false non nocet. But this rule is established, and can be invoked, only to aid the evident intent. Where to apply the rule defeats the evident intent, it is disregarded. Cases cited supra. And see Webb v. Webb, 29 Ala. 606; Davis v. Rainsford, 17 Mass. 210; Jackson v. Loomis, 18 Johns. 81; Norwood v. Byrd, 1 Rich. 135, 42 Am. Dec. 406; Jackson v. Blodget, 16 Johns. 172; Proctor v. Pool, 4 Dev. (15 N. C.) 370. Pour sitws at the place La Zanja can be no other than the four sitios that touch that point; that is, that corner there. Any other construction makes this grant void for uncertainty. Shackleford v. Bailey, 35 Ill. 391; Peck v. Mallams, 10 N. Y. 530.
It is urged, however, against this view that the act of 1885 prohibited all inclosures of any public lands by any person who had “no claim or color of title thereto, made or acquired in good faith.” And it is insisted that defendant claims to own the lands fenced, and has urged his claim by petition to the surveyor-general under the act of 1870, who has reported thereon, and that the claim is pending before Congress; that this is the very question there pending; that his right thereto is the question in dispute; that that is the tribunal established
Wright, C. J., and Porter, J., concur.