1. U.S.
Supreme Court name of Old Point Comfort, on the Chesapeake Bay and
Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8
Wheat. 543 543 (1823)
Johnson & Graham's Lessee v. McIntosh
21 U.S. (8 Wheat.) 543
ERROR TO THE DISTRICT
COURT OF ILLINOIS
Syllabus
A title to lands under grants to private individuals made
by Indian tribes or nations northwest of the River Ohio
in 1773 and 1775 cannot be recognized in the courts of
the United States.
Discovery the original foundation of titles to land on the
American continent as between the different European
nations by whom conquests and settlements were made
here.
Recognition of the same principle in the wars,
negotiations, and treaties between the different
European powers.
Adoption of the same principle by the United States.
The exclusive right of the British government to the
lands occupied by the Indians has passed to that of the
United States.
Foundation and limitation of the right of conquest.
Application of the principle of the right of conquest to
the case of the Indian savages. Nature of the Indian title,
as subordinate to the absolute ultimate title of the
government.
Effect of the proclamation of 1763.
Titles in New England under Indian grants.
This was an action of ejectment for lands in the State
and District of Illinois, claimed by the plaintiffs under a
purchase and conveyance from the Piankeshaw Indians
and by the defendant under a grant from the United
States. It came up on a case stated upon which there
was a judgment below for the defendant. The case
stated set out the following facts:
1st. That on 23 May, 1609, James I, King of England, by
his letters patent of that date, under the great seal of
England, did erect, form, and establish Robert, Earl of
Salisbury, and others, his associates, in the letters
patent named and their successors into a body
corporate and politic by the name and style of "The
Treasurer and Company of Adventurers and Planters of
the City of London for the first Colony in Virginia," with
perpetual succession and power to make, have, and use
a common seal, and did give, grant, and confirm unto
this company, and their successors, under certain
reservations and limitations in the letters patent
expressed,
"All the lands, countries, and territories situate, lying,
and being in that part of North America called Virginia,
from the point of land called Cape or Point Comfort all
along the seacoast to the northward two hundred miles,
and from the said Cape or Point Comfort all along the
seacoast to the southward two hundred miles, and all
that space and circuit of land lying from the seacoast of
the precinct aforesaid up into the land throughout from
the sea, west and northwest, and also all the islands
lying within one hundred miles along the coast of both
seas of the precinct aforesaid, with all the soil, grounds,
rights, privileges, and appurtenances to these territories
belonging and in the letters patent particularly
enumerated," and did grant to this corporation and
their successors various powers of government in the
letters patent particularly expressed.
2d. That the place called in these letters patent Cape or
Point Comfort is the place now called and known by the
Hampton Roads, and that immediately after the
granting of the letters patent, the corporation
proceeded under and by virtue of them to take
possession of parts of the territory which they describe
and to form settlements, plant a colony, and exercise
the powers of government therein, which colony was
called and known by the name of the Colony of Virginia.
3d. That at the time of granting these letters patent and
of the discovery of the continent of North America by
the Europeans, and during the whole intermediate time,
the whole of the territory in the letters patent
described, except a small district on James River, where
a settlement of Europeans had previously been made,
was held, occupied, and possessed in full sovereignty by
various independent tribes or nations of Indians, who
were the sovereigns of their respective portions of the
territory and the absolute owners and proprietors of the
soil and who neither acknowledged nor owed any
allegiance or obedience to any European sovereign or
state whatever, and that in making settlements within
this territory and in all the other parts of North America
where settlements were made under the authority of
the English government or by its subjects, the right of
soil was previously obtained by purchase or conquest
from the particular Indian tribe or nation by which the
soil was claimed and held, or the consent of such tribe
or nation was secured.
4th. That in the year 1624, this corporation was
dissolved by due course of law and all its powers,
together with its rights of soil and jurisdiction under the
letters patent in question were revested in the Crown of
England, whereupon the colony became a royal
government with the same territorial limits and extent
which had been established by the letters patent, and so
continued until it became a free and independent state,
except so far as its limits and extent were altered and
curtailed by the Treaty of February 10, 1763, between
Great Britain and France and by the letters patent
granted by the King of England for establishing the
Colonies of Carolina, Maryland, and Pennsylvania.
5th. That sometime previous to the year 1756, the
French government, laying a claim to the country west
of the Alleghany or Appalachian Mountains on the Ohio
and Mississippi Rivers and their branches, took
possession of certain parts of it with the consent of the
several tribes or nations of Indians possessing and
owning them, and with the like consent established
several military posts and settlements therein,
particularly at Kaskaskias, on the River Kaskaskias, and
at Vincennes, on the River Wabash, within the limits of
the Colony of Virginia, as described and established in
and by the letters patent of May 23, 1609, and that the
government of Great Britain, after complaining of these
establishments as encroachments and remonstrating
against them, at length, in the year 1756, took up arms
to resist and repel them, which produced a war
between those two nations wherein the Indian tribes
inhabiting and holding the countries northwest of the
Ohio and on the Mississippi above the mouth of the
Ohio were the allies of France, and the Indians known by
the name of the Six Nations or the Iroquois and their
tributaries and allies were the allies of Great Britain, and
that on 10 February, 1763, this war was terminated by a
definitive treaty of peace between Great Britain and
France and their allies by which it was stipulated and
agreed that the River Mississippi, from its source to the
Iberville, should forever after form the boundary
between the dominions of Great Britain and those of
France in that part of North America and between their
respective allies there.
6th. That the government of Virginia, at and before the
commencement of this war and at all times after it
became a royal government, claimed and exercised
jurisdiction, with the knowledge and assent of the
government of Great Britain, in and over the country
northwest of the River Ohio and east of the Mississippi
as being included within the bounds and limits
described and established for that colony, by the letters
patent of May 23, 1609, and that in the year 1749, a
grant of six hundred thousand acres of land within the
country northwest of the Ohio and as part of Virginia
was made by the government of Great Britain to some
of its subjects by the name and style of the Ohio
Company.
7th. That at and before the commencement of the war
in 1756 and during its whole continuance and at the
time of the Treaty of February 10, 1763, the Indian
tribes or nations inhabiting the country north and
northwest of the Ohio and east of the Mississippi as far
east as the river falling into the Ohio called the Great
Miami were called and known by the name of the
Western Confederacy of Indians, and were the allies of
France in the war, but not her subjects, never having
been in any manner conquered by her, and held the
country in absolute sovereignty as independent nations,
both as to the right of jurisdiction and sovereignty and
the right of soil, except a few military posts and a small
territory around each, which they had ceded to France,
and she held under them, and among which were the
aforesaid posts of Kaskaskias and Vincennes, and that
these Indians, after the treaty, became the allies of
Great Britain, living under her protection as they had
before lived under that of France, but were free and
independent, owing no allegiance to any foreign power
whatever and holding their lands in absolute property,
the territories of the respective tribes being separated
from each other and distinguished by certain natural
marks and boundaries to the Indians well known, and
each tribe claiming and exercising separate and absolute
ownership in and over its own territory, both as to the
right of sovereignty and jurisdiction and the right of soil.
8th. That among the tribes of Indians thus holding and
inhabiting the territory north and northwest of the
Ohio, east of the Mississippi, and west of the Great
Miami, within the limits of Virginia, as described in the
letters patent of May 23, 1609, were certain
independent tribes or nations called the Illinois or
Kaskaskias and the Piankeshaw or Wabash Indians, the
first of which consisted of three several tribes united
into one and called the Kaskasias, the Pewarias, and the
Cahoquias; that the Illinois owned, held, and inhabited,
as their absolute and separate property, a large tract of
country within the last mentioned limits and situated on
the Mississippi, Illinois, and Kaskaskias Rivers and on the
Ohio below the mouth of the Wabash, and the
Piankeshaws another large tract of country within the
same limits, and as their absolute and separate
property, on the Wabash and Ohio Rivers, and that
these Indians remained in the sole and absolute
ownership and possession of the country in question
until the sales made by them in the manner herein after
set forth.
9th. That on the termination of the war between Great
Britain and France, the Illinois Indians, by the name of
the Kaskaskias tribes of Indians, as fully representing all
the Illinois tribes then remaining, made a treaty of
peace with Great Britain and a treaty of peace, limits,
and amity, under her mediation, with the Six Nations, or
Iroquois, and their allies, then known and distinguished
by the name of the Northern Confederacy of Indians,
the Illinois being a part of the confederacy then known
and distinguished by the name of the Southern
Confederacy, and sometimes by that of the Western
Confederacy.
10th. That on 7 October, 1763, the King of Great Britain
made and published a proclamation for the better
regulation of the countries ceded to Great Britain by
that treaty, which proclamation is referred to and made
part of the case.
11th. That from time immemorial and always up to the
present time, all the Indian tribes or nations of North
America, and especially the Illinois and Piankeshaws and
other tribes holding, possessing, and inhabiting the said
countries north and northeast of the Ohio east of the
Mississippi and west of the Great Miami held their
respective lands and territories each in common, the
individuals of each tribe or nation holding the lands and
territories of such tribe in common with each other, and
there being among them no separate property in the
soil, and that their sole method of selling, granting, and
conveying their lands, whether to governments or
individuals, always has been from time immemorial and
now is for certain chiefs of the tribe selling to represent
the whole tribe in every part of the transaction, to make
the contract, and execute the deed, on behalf of the
whole tribe, to receive for it the consideration, whether
in money or commodities, or both, and finally to divide
such consideration among the individuals of the tribe,
and that the authority of the chiefs so acting for the
whole tribe is attested by the presence and assent of
the individuals composing the tribe, or some of them,
and by the receipt by the individuals composing the
tribe of their respective shares of the price, and in no
other manner.
12th. That on 5 July, 1773, certain chiefs of the Illinois
Indians, then jointly representing, acting for, and being
duly authorized by that tribe in the manner explained
above, did by their deed poll, duly executed and
delivered and bearing date on that day, at the post of
Kaskaskias, then being a British military post, and at a
public council there held by them for and on behalf of
the said Illinois nation of Indians with William Murray, of
the Illinois country, merchant, acting for himself and for
Moses Franks and Jacob Franks, of London, in Great
Britain, David Franks, John Inglis, Bernard Gratz, Michael
Gratz, Alexander Ross, David Sproat, and James Milligan,
all of Philadelphia, in the p\Province of Pennsylvania;
Moses Franks, Andrew Hamilton, William Hamilton, and
Edmund Milne of the same place; Joseph Simons
otherwise called Joseph Simon and Levi Andrew Levi of
the Town of Lancaster in Pennsylvania; Thomas Minshall
of York County in the same province; Robert Callender
and William Thompson, of Cumberland County in the
same province; John Campbell of Pittsburgh in the same
province; and George Castles and James Ramsay of the
Illinois country, and for a good and valuable
consideration in the said deed stated grant, bargain, sell,
alien, lease, enfeoff, and confirm to the said William
Murray, Moses Franks, Jacob Franks, David Franks, John
Inglis, Bernard Gratz, Michael Gratz, Alexander Ross,
David Sproat, James Milligan, Andrew Hamilton, William
Hamilton, Edmund Milne Joseph Simons, otherwise
called Joseph Simon Levi Andrew Levi, Thomas Minshall,
Robert Callender, William Thompson, John Campbell,
George Castles, and James Ramsay, their heirs and
assigns forever, in severalty, or to George the Third,
then King of Great Britain and Ireland, his heirs and
successors, for the use, benefit, and behoof of the
grantees, their heirs and assigns, in severalty, by
whichever of those tenures they might most legally
hold, all those two several tracts or parcels of land
situated, lying, and being within the limits of Virginia on
the east of the Mississippi, northwest of the Ohio, and
west of the Great Miami, and thus butted and bounded:
Beginning for one of the said tracts on the east side of
the Mississippi at the mouth of the Heron Creek, called
by the French the River of Mary, being about a league
below the mouth of the Kaskaskias River, and running
thence a northward of east course in a direct line back
to the Hilly Plains, about eight leagues more or less;
thence the same course in a direct line to the Crab Tree
Plains, about seventeen leagues more or less; thence
the same course in a direct line to a remarkable place
known by the name of the Big Buffalo Hoofs, about
seventeen leagues more or less; thence the same
course, in a direct line to the Salt Lick Creek, about
seven leagues more or less; then crossing the Salt Lick
Creek, about one league below the ancient Shawanese
town in an easterly or a little to the north of east course
in a direct line to the River Ohio, about four leagues
more or less; then down the Ohio by its several courses
until it empties into the Mississippi, about thirty-five
leagues more or less; and then up the Mississippi, by its
several courses, to the place of beginning, about thirty-
three leagues more or less; and beginning for the other
tract on the Mississippi at a point directly opposite to
the mouth of the Missouri and running up the
Mississippi by its several courses to the mouth of the
Illinois, about six leagues more or less; and thence up
the Illinois, by its several courses, to Chicagou or Garlic
Creek, about ninety leagues, more or less; thence nearly
a northerly course, in a direct line, to a certain
remarkable place, being the ground on which a battle
was fought about forty or fifty years before that time
between the Pewaria and Renard Indians, about fifty
leagues more or less; thence by the same course in a
direct line to two remarkable hills close together in the
middle of a large prairie or plain, about fourteen leagues
more or less; thence a north of east course, in a direct
line, to a remarkable spring known by the Indians by the
name of "Foggy Spring," about fourteen leagues more or
less; thence the same course in a direct line to a great
mountain, to the northwest of the White Buffalo Plain,
about fifteen leagues more or less; and thence nearly a
southwest course to the place of beginning, about forty
leagues more or less:
To have and to hold the said two tracts of land, with all
and singular their appurtenances, to the grantees, their
heirs and assigns, forever in severalty or to the King, his
heirs and successors, to and for the use, benefit, or
behoof of the grantees, their heirs and assigns, forever
in severalty, as will more fully appear by the said deed
poll, duly executed under the hands and seals of the
grantors and duly recorded at Kaskaskias on 2
September, 1773, in the office of Vicerault Lemerance, a
notary public, duly appointed and authorized. This deed,
with the several certificates annexed to or endorsed on
it, was set out at length in the case.
13th. That the consideration in this deed expressed, was
of the value of $24,000 current money of the United
States and upwards, and was paid and delivered, at the
time of the execution of the deed, by William Murray,
one of the grantees, in behalf of himself and the other
grantees, to the Illinois Indians, who freely accepted it
and divided it among themselves; that the conferences
in which the sale of these lands was agreed on and
made and in which it was agreed that the deed should
be executed were publicly held for the space of a month
at the post of Kaskaskias, and were attended by many
individuals of all the tribes of Illinois Indians, besides the
chiefs, named as grantors in the deed; that the whole
transaction was open, public, and fair, and the deed
fully explained to the grantors and other Indians by the
sworn interpreters of the government and fully
understood by the grantors and other Indians before it
was executed; that the several witnesses to the deed
and the grantees named in it were such persons and of
such quality and stations, respectively, as they are
described to be in the deed, the attestation, and the
other endorsements on it; that the grantees did duly
authorize William Murray to act for and represent them
in the purchase of the lands and the acceptance of the
deed, and that the two tracts or parcels of land which it
describes and purports to grant were then part of the
lands held, possessed, and inhabited by the Illinois
Indians from time immemorial in the manner already
stated.
14th. That all the persons named as grantees in this
deed were, at the time of its execution and long before,
subjects of the Crown of Great Britain and residents of
the several places named in the deed as their places of
residence, and that they entered into the land under
and by virtue of the deed and became seized as the law
requires.
15th. That on 18 October, 1775, Tabac and certain other
Indians, all being chiefs of the Piankeshaws and jointly
representing, acting for, and duly authorized by that
nation in the manner stated above, did, by their deed
poll, duly executed and bearing date on the day last
mentioned at the post of Vincennes, otherwise called
post St. Vincent, then being a British military post, and
at a public council there held by them for and on behalf
of the Piankeshaw Indians, with Louis Viviat, of the
Illinois country, acting for himself and for the Right
Honorable John, Earl of Dunmore, then Governor of
Virginia, the Honorable John Murray, son of the said
Earl, Moses Franks and Jacob Franks, of London, in
Great Britain, Thomas Johnson, Jr., and John Davidson,
both of Annapolis, in Maryland, William Russel,
Matthew Ridley, Robert Christie, Sr., and Robert
Christie, Jr., of Baltimore Town, in the same province,
Peter Compbell, of Piscataway in the same province,
William Geddes, of Newtown Chester in the same
province, collector of his Majesty's customs, David
Franks and Moses Franks, both of Philadelphia in
Pennsylvania, William Murray and Daniel Murray, of the
Illinois country, Nicholas St. Martin and Joseph Page, of
the same place, Francis Perthuis, late of Quebec, in
Canada, but then of post St. Vincent, and for good and
valuable consideration, in the deed poll mentioned and
enumerated, grant, bargain, sell, alien, enfeoff, release,
ratify, and confirm to the said Louis Viviat and the other
persons last mentioned, their heirs and assigns, equally
to be divided, or to George III, then King of Great Britain
and Ireland, his heirs and successors, for the use,
benefit, and behoof of all the above mentioned
grantees, their heirs and assigns, in severalty, by
whichever of those tenures they might most legally
hold, all those two several tracts of land in the deed
particularly described situate, lying,
brk:
and being northwest of the Ohio, east of the Mississippi,
and west of the Great Miami, within the limits of
Virginia and on both sides of the Ouabache, otherwise
called the Wabash, which two tracts of land are
contained respectively within the following metes and
bounds, courses and distances, that is to say, beginning
for one of the said tracts at the mouth of a rivulet called
Riviere du Chat, or Cat River, where it empties itself into
the Ouabache or Wabash, by its several courses, to a
place called Point Coupee, about twelve leagues above
post St. Vincent, being forty leagues, or thereabouts, in
length, on the said river Ouabache, from the place of
beginning, with forty leagues in width or breadth on the
east side, and thirty leagues in breadth or width on the
west side of that river, to be continued along from the
place of beginning to Point Coupee. And beginning for
the other tract at the mouth of White River where it
empties into the Ouabache, about twelve leagues below
post St. Vincent, and running thence down the
Ouabache by its several courses until it empties into the
Ohio, being from White River to the Ohio, about fifty-
three leagues in length, more or less, with forty leagues
in width or breadth on the east side and thirty in width
or breadth on the west side of the Ouabache, to be
continued along from the White River to the Ohio, with
all the rights, liberties, privileges, hereditaments, and
appurtenances to the said tract belonging, to have and
to hold to the grantees, their heirs and assigns, forever
in severalty or to the King, his heirs and successors, for
the use, benefit, and behoof of the grantees, their heirs
and assigns, as will more fully appear by the deed itself,
duly executed under the hands and seals of the
grantors, and duly recorded at Kaskaskias, on 5
December, 1775, in the office of Louis Bomer, a notary
public, duly appointed and authorized. This deed, with
the several certificates annexed to or endorsed on it,
was set out at length.
16th. That the consideration in this deed expressed was
of the value of $31,000 current money of the United
States and upwards, and was paid and delivered at the
time of the execution of the deed by the grantee, Lewis
Viviat, in behalf of himself and the other grantees, to
the Piankeshaw Indians, who freely accepted it and
divided it among themselves; that the conferences in
which the sale of these two tracts of land was agreed on
and made, and in which it was agreed that the deed
should be executed were publicly held for the space of a
month at the post of Vincennes or post St. Vincent, and
were attended by many individuals of the Piankeshaw
nation of Indians besides the chiefs named as grantors
in the deed; that the whole transaction was open,
public, and fair, and the deed fully explained to the
grantors and other Indians by skillful interpreters, and
fully understood by them before it was executed; that it
was executed in the presence of the several witnesses
by whom it purports to have been attested, and was
attested by them; that the grantees were all subjects of
the Crown of Great Britain, and were of such quality,
station, and residence, respectively, as they are
described in the deed to be; that the grantees did duly
authorize Lewis Viviat to act for and represent them in
the purchase of these two tracts of land and in the
acceptance of the deed; that these tracts of land were
then part of the lands held, possessed, and inhabited by
the Piankeshaw Indians from time immemorial, as is
stated above; and that the several grantees under this
deed entered into the land which it purports to grant
and became seized as the law requires.
17th. That on 6 May, 1776, the Colony of Virginia threw
off its dependence on the Crown and government of
Great Britain and declared itself an independent state
and government with the limits prescribed and
established by the letters patent of May 23, 1609, as
curtailed and restricted by the letters patent
establishing the Colonies of Pennsylvania, Maryland,
and Carolina and by the Treaty of February 10, 1763,
between Great Britain and France, which limits, so
curtailed and restricted, the State of Virginia, by its
Constitution and form of government, declared should
be and remain the limits of the state and should bound
its western and northwestern extent.
18th. That on 5 October, 1778, the General Assembly of
Virginia, having taken by arms the posts of Kaskaskias
and Vincennes, or St. Vincent, from the British forces, by
whom they were then held, and driven those forces
from the country northwest of the Ohio, east of the
Mississippi, and west of the Great Miami, did, by an act
of assembly of that date, entitled "An act for
establishing the County of Illinois and for the more
effectual protection and defense thereof," erect that
country, with certain other portions of territory within
the limits of the state and northwest of the Ohio into a
county, by the name of the County of Illinois.
19th. That on 29 December, 1783, the State of Virginia,
by an act of assembly of that date, authorized their
delegates in the Congress of the United States, or such
of them, to the number of three at least, as should be
assembled in Congress on behalf of the state and by
proper deeds or instruments in writing under their
hands and seals, to convey, transfer, assign, and make
over to the United States, in Congress assembled, for
the benefit of the said states, all right, title, and claim, as
well of soil as jurisdiction, which Virginia had to the
territory or tract of country within her limits, as defined
and prescribed by the letters patent of May 23, 1609,
and lying to the northwest of the Ohio; subject to
certain limitations and conditions in the act prescribed
and specified, and that on 1 March, 1784, Thomas
Jefferson, Samuel Hardy, Arthur Lee, and James
Monroe, then being four of the delegates of Virginia to
the Congress of the United States, did, by their deed
poll, under their hands and seals, in pursuance and
execution of the authority to them given by this act of
assembly, convey, transfer, assign, and make over to the
United States, in Congress assembled, for the benefit of
the said states, all right, title, and claim, as well of soil as
jurisdiction which that state had to the territory
northwest of the Ohio, with the reservations,
limitations, and conditions in the act of assembly
prescribed, which cession the United States accepted.
20th. That on 20 July, 1818, the United States, by their
officers duly authorized for that purpose did sell, grant,
and convey to the defendant in this action, William
McIntosh, all those several tracts or parcels of land,
containing 11,560 acres, and butted, bounded, and
described, as will fully appear in and by the patent for
the said lands, duly executed, which was set out at
length.
21st. That the lands described and granted in and by this
patent are situated within the State of Illinois and are
contained within the lines of the last or second of the
two tracts described and purporting to be granted and
conveyed to Louis Viviat and others by the deed of
October 18, 1775, and that William McIntosh, the
defendant, entered upon these lands under and by
virtue of his patent and became possessed thereof
before the institution of this suit.
22d. That Thomas Johnson, one of the grantees in and
under the deed of October 18, 1775, departed this life
on or about 1 October, 1819, seized of all his undivided
part or share of and in the two several tracts of land
described and purporting to be granted and conveyed to
him and others by that deed, having first duly made and
published his last will and testament in writing, attested
by three credible witnesses, which he left in full force
and by which he devised all his undivided share and part
of those two tracts of land to his son, Joshua Johnson
and his heirs, and his grandson, Thomas J. Graham, and
his heirs, the lessors of the plaintiff in this action, as
tenants in common.
23d. That Joshua Johnson and Thomas J. Graham, the
devisees, entered into the two tracts of land last above
mentioned under and by virtue of the will, and became
thereof seized as the law requires. That Thomas
Johnson, the grantee and devisor, during his whole life
and at the time of his death, was an inhabitant and
citizen of the State of Maryland; that Joshua Johnson
and Thomas J. Graham, the lessors of the plaintiff, now
are and always have been citizens of the same state;
that the defendant, William McIntosh, now is and at and
before the time of bringing this action was a citizen of
the State of Illinois, and that the matter in dispute in this
action is of the value of $2,000 current money of the
United States and upwards.
24th. And that neither William Murray nor any other of
the grantees under the deed of July 5, 1773, nor Louis
Viviat nor any other of the grantees under the deed of
October 8, 1775, nor any person for them or any of
them ever obtained or had the actual possession under
and by virtue of those deeds or either of them of any
part of the lands in them or either of them described
and purporting to be granted, but were prevented by
the war of the American Revolution, which soon after
commenced, and by the disputes and troubles which
preceded it, from obtaining such possession, and that
since the termination of the war and before it, they
have repeatedly and at various times from the year
1781 till the year 1816 petitioned the Congress of the
United States to acknowledge and confirm their title to
those lands under the purchases and deeds in question,
but without success.
Judgment being given for the defendant on the case
stated, the plaintiffs brought this writ of error.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of
the Court.
The plaintiffs in this cause claim the land in their
declaration mentioned under two grants purporting to
be made, the first in 1773 and the last in 1775, by the
chiefs of certain Indian tribes constituting the Illinois
and the Piankeshaw nations, and the question is
whether this title can be recognized in the courts of the
United States?
The facts, as stated in the case agreed, show the
authority of the chiefs who executed this conveyance so
far as it could be given by their own people, and likewise
show that the particular tribes for whom these chiefs
acted were in rightful possession of the land they sold.
The inquiry, therefore, is in a great measure confined to
the power of Indians to give, and of private individuals
to receive, a title which can be sustained in the courts of
this country.
As the right of society to prescribe those rules by which
property may be acquired and preserved is not and
cannot be drawn into question, as the title to lands
especially is and must be admitted to depend entirely
on the law of the nation in which they lie, it will be
necessary in pursuing this inquiry to examine not singly
those principles of abstract justice which the Creator of
all things has impressed on the mind of his creature man
and which are admitted to regulate in a great degree
the rights of civilized nations, whose perfect
independence is acknowledged, but those principles
also which our own government has adopted in the
particular case and given us as the rule for our decision.
On the discovery of this immense continent, the great
nations of Europe were eager to appropriate to
themselves so much of it as they could respectively
acquire. Its vast extent offered an ample field to the
ambition and enterprise of all, and the character and
religion of its inhabitants afforded an apology for
considering them as a people over whom the superior
genius of Europe might claim an ascendency. The
potentates of the old world found no difficulty in
convincing themselves that they made ample
compensation to the inhabitants of the new by
bestowing on them civilization and Christianity in
exchange for unlimited independence. But as they were
all in pursuit of nearly the same object, it was necessary,
in order to avoid conflicting settlements and consequent
war with each other, to establish a principle which all
should acknowledge as the law by which the right of
acquisition, which they all asserted should be regulated
as between themselves. This principle was that
discovery gave title to the government by whose
subjects or by whose authority it was made against all
other European governments, which title might be
consummated by possession.
The exclusion of all other Europeans necessarily gave to
the nation making the discovery the sole right of
acquiring the soil from the natives and establishing
settlements upon it. It was a right with which no
Europeans could interfere. It was a right which all
asserted for themselves, and to the assertion of which
by others all assented.
Those relations which were to exist between the
discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no
other power could interpose between them. In the
establishment of these relations, the rights of the
original inhabitants were in no instance entirely
disregarded, but were necessarily to a considerable
extent impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim to
retain possession of it, and to use it according to their
own discretion; but their rights to complete sovereignty
as independent nations were necessarily diminished,
and their power to dispose of the soil at their own will
to whomsoever they pleased was denied by the original
fundamental principle that discovery gave exclusive title
to those who made it.
While the different nations of Europe respected the
right of the natives as occupants, they asserted the
ultimate dominion to be in themselves, and claimed and
exercised, as a consequence of this ultimate dominion, a
power to grant the soil while yet in possession of the
natives. These grants have been understood by all to
convey a title to the grantees, subject only to the Indian
right of occupancy.
The history of America from its discovery to the present
day proves, we think, the universal recognition of these
principles.
Spain did not rest her title solely on the grant of the
Pope. Her discussions respecting boundary, with France,
with Great Britain, and with the United States all show
that she placed in on the rights given by discovery.
Portugal sustained her claim to the Brazils by the same
title.
France also founded her title to the vast territories she
claimed in America on discovery. However conciliatory
her conduct to the natives may have been, she still
asserted her right of dominion over a great extent of
country not actually settled by Frenchmen and her
exclusive right to acquire and dispose of the soil which
remained in the occupation of Indians. Her monarch
claimed all Canada and Acadie as colonies of France at a
time when the French population was very
inconsiderable and the Indians occupied almost the
whole country. He also claimed Louisiana,
comprehending the immense territories watered by the
Mississippi and the rivers which empty into it, by the
title of discovery. The letters patent granted to the Sieur
Demonts in 1603, constitute him Lieutenant General,
and the representative of the King in Acadie, which is
described as stretching from the 40th to the 46th
degree of north latitude, with authority to extend the
power of the French over that country and its
inhabitants, to give laws to the people, to treat with the
natives and enforce the observance of treaties, and to
parcel out and give title to lands according to his own
judgment.
The states of Holland also made acquisitions in America
and sustained their right on the common principle
adopted by all Europe. They allege, as we are told by
Smith in his History of New York, that Henry Hudson,
who sailed, as they say, under the orders of their East
India Company, discovered the country from the
Delaware to the Hudson, up which he sailed to the 43d
degree of north latitude, and this country they claimed
under the title acquired by this voyage.
Their first object was commercial, as appears by a grant
made to a company of merchants in 1614, but in 1621
the States General made, as we are told by Mr. Smith, a
grant of the country to the West India Company by the
name of New Netherlands.
The claim of the Dutch was always contested by the
English -- not because they questioned the title given by
discovery, but because they insisted on being
themselves the rightful claimants under that title. Their
pretensions were finally decided by the sword.
No one of the powers of Europe gave its full assent to
this principle more unequivocally than England. The
documents upon this subject are ample and complete.
So early as the year 1496, her monarch granted a
commission to the Cabots to discover countries then
unknown to Christian people and to take possession of
them in the name of the King of England. Two years
afterwards, Cabot proceeded on this voyage and
discovered the continent of North America, along which
he sailed as far south as Virginia. To this discovery the
English trace their title.
In this first effort made by the English government to
acquire territory on this continent we perceive a
complete recognition of the principle which has been
mentioned. The right of discovery given by this
commission is confined to countries "then unknown to
all Christian people," and of these countries Cabot was
empowered to take possession in the name of the King
of England. Thus asserting a right to take possession
notwithstanding the occupancy of the natives, who
were heathens, and at the same time admitting the
prior title of any Christian people who may have made a
previous discovery.
The same principle continued to be recognized. The
charter granted to Sir Humphrey Gilbert in 1578
authorizes him to discover and take possession of such
remote, heathen, and barbarous lands as were not
actually possessed by any Christian prince or people.
This charter was afterwards renewed to Sir Walter
Raleigh in nearly the same terms.
By the charter of 1606, under which the first permanent
English settlement on this continent was made, James I
granted to Sir Thomas Gates and others those territories
in America lying on the seacoast between the 34th and
45th degrees of north latitude and which either
belonged to that monarch or were not then possessed
by any other Christian prince or people. The grantees
were divided into two companies at their own request.
The first or southern colony was directed to settle
between the 34th and 41st degrees of north latitude,
and the second or northern colony between the 38th
and 45th degrees.
In 1609, after some expensive and not very successful
attempts at settlement had been made, a new and more
enlarged charter was given by the Crown to the first
colony, in which the King granted to the "Treasurer and
Company of Adventurers of the City of London for the
first colony in Virginia," in absolute property, the lands
extending along the seacoast four hundred miles, and
into the land throughout from sea to sea. This charter,
which is a part of the special verdict in this cause, was
annulled, so far as respected the rights of the company,
by the judgment of the Court of King's Bench on a writ
of quo warranto, but the whole effect allowed to this
judgment was to revest in the Crown the powers of
government and the title to the lands within its limits.
At the solicitation of those who held under the grant to
the second or northern colony, a new and more
enlarged charter was granted to the Duke of Lenox and
others in 1620, who were denominated the Plymouth
Company, conveying to them in absolute property all
the lands between the 40th and 48th degrees of north
latitude.
Under this patent New England has been in a great
measure settled. The company conveyed to Henry
Rosewell and others, in 1627, that territory which is now
Massachusetts, and in 1628 a charter of incorporation
comprehending the powers of government was granted
to the purchasers.
Great part of New England was granted by this
company, which at length divided their remaining lands
among themselves, and in 1635 surrendered their
charter to the Crown. A patent was granted to Gorges
for Maine, which was allotted to him in the division of
property.
All the grants made by the Plymouth Company, so far as
we can learn, have been respected. In pursuance of the
same principle, the King, in 1664, granted to the Duke of
York the country of New England as far south as the
Delaware Bay. His Royal Highness transferred New
Jersey to Lord Berkeley and Sir George Carteret.
In 1663, the Crown granted to Lord Clarendon and
others the country lying between the 36th degree of
north latitude and the River St. Mathes, and in 1666 the
proprietors obtained from the Crown a new charter
granting to them that province in the King's dominions
in North America which lies from 36 degrees 30 minutes
north latitude to the 29th degree, and from the Atlantic
ocean to the South sea.
Thus has our whole country been granted by the Crown
while in the occupation of the Indians. These grants
purport to convey the soil as well as the right of
dominion to the grantees. In those governments which
were denominated royal, where the right to the soil was
not vested in individuals, but remained in the Crown or
was vested in the colonial government, the King claimed
and exercised the right of granting lands and of
dismembering the government at his will. The grants
made out of the two original colonies, after the
resumption of their charters by the Crown, are
examples of this. The governments of New England,
New York, New Jersey, Pennsylvania, Maryland, and a
part of Carolina were thus created. In all of them, the
soil, at the time the grants were made, was occupied by
the Indians. Yet almost every title within those
governments is dependent on these grants. In some
instances, the soil was conveyed by the Crown
unaccompanied by the powers of government, as in the
case of the northern neck of Virginia. It has never been
objected to this or to any other similar grant that the
title as well as possession was in the Indians when it was
made and that it passed nothing on that account.
These various patents cannot be considered as nullities,
nor can they be limited to a mere grant of the powers of
government. A charter intended to convey political
power only would never contain words expressly
granting the land, the soil, and the waters. Some of
them purport to convey the soil alone, and in those
cases in which the powers of government as well as the
soil are conveyed to individuals, the Crown has always
acknowledged itself to be bound by the grant. Though
the power to dismember regal governments was
asserted and exercised, the power to dismember
proprietary governments was not claimed, and in some
instances, even after the powers of government were
revested in the Crown, the title of the proprietors to the
soil was respected.
Charles II was extremely anxious to acquire the property
of Maine, but the grantees sold it to Massachusetts, and
he did not venture to contest the right of that colony to
the soil. The Carolinas were originally proprietary
governments. In 1721, a revolution was effected by the
people, who shook off their obedience to the
proprietors and declared their dependence immediately
on the Crown. The King, however, purchased the title of
those who were disposed to sell. One of them, Lord
Carteret, surrendered his interest in the government but
retained his title to the soil. That title was respected till
the revolution, when it was forfeited by the laws of war.
Further proofs of the extent to which this principle has
been recognized will be found in the history of the wars,
negotiations, and treaties which the different nations
claiming territory in America have carried on and held
with each other.
The contests between the cabinets of Versailles and
Madrid respecting the territory on the northern coast of
the Gulf of Mexico were fierce and bloody, and
continued until the establishment of a Bourbon on the
throne of Spain produced such amicable dispositions in
the two Crowns as to suspend or terminate them.
Between France and Great Britain, whose discoveries as
well as settlements were nearly contemporaneous,
contests for the country actually covered by the Indians
began as soon as their settlements approached each
other, and were continued until finally settled in the
year 1763 by the Treaty of Paris.
Each nation had granted and partially settled the
country, denominated by the French Acadie, and by the
English Nova Scotia. By the 12th article of the Treaty of
Utrecht, made in 1703, his most Christian Majesty ceded
to the Queen of Great Britain "all Nova Scotia or Acadie,
with its ancient boundaries." A great part of the ceded
territory was in the possession of the Indians, and the
extent of the cession could not be adjusted by the
commissioners to whom it was to be referred.
The Treaty of Aix la Chapelle, which was made on the
principle of the status ante bellum, did not remove this
subject of controversy. Commissioners for its
adjustment were appointed whose very able and
elaborate, though unsuccessful, arguments in favor of
the title of their respective sovereigns show how
entirely each relied on the title given by discovery to
lands remaining in the possession of Indians.
After the termination of this fruitless discussion, the
subject was transferred to Europe and taken up by the
cabinets of Versailles and London. This controversy
embraced not only the boundaries of New England,
Nova Scotia, and that part of Canada which adjoined
those colonies, but embraced our whole western
country also. France contended not only that the St.
Lawrence was to be considered as the center of Canada,
but that the Ohio was within that colony. She founded
this claim on discovery and on having used that river for
the transportation of troops in a war with some
southern Indians.
This river was comprehended in the chartered limits of
Virginia, but though the right of England to a reasonable
extent of country in virtue of her discovery of the
seacoast and of the settlements she made on it, was not
to be questioned, her claim of all the lands to the Pacific
Ocean because she had discovered the country washed
by the Atlantic, might, without derogating from the
principle recognized by all, be deemed extravagant. It
interfered, too, with the claims of France founded on
the same principle. She therefore sought to strengthen
her original title to the lands in controversy by insisting
that it had been acknowledged by France in the 15th
article of the Treaty of Utrecht. The dispute respecting
the construction of that article has no tendency to
impair the principle, that discovery gave a title to lands
still remaining in the possession of the Indians.
Whichever title prevailed, it was still a title to lands
occupied by the Indians, whose right of occupancy
neither controverted and neither had then extinguished.
These conflicting claims produced a long and bloody war
which was terminated by the conquest of the whole
country east of the Mississippi. In the treaty of 1763,
France ceded and guaranteed to Great Britain all Nova
Scotia, or Acadie, and Canada, with their dependencies,
and it was agreed that the boundaries between the
territories of the two nations in America should be
irrevocably fixed by a line drawn from the source of the
Mississippi, through the middle of that river and the
lakes Maurepas and Ponchartrain, to the sea. This treaty
expressly cedes, and has always been understood to
cede, the whole country on the English side of the
dividing line between the two nations, although a great
and valuable part of it was occupied by the Indians.
Great Britain, on her part, surrendered to France all her
pretensions to the country west of the Mississippi. It has
never been supposed that she surrendered nothing,
although she was not in actual possession of a foot of
land. She surrendered all right to acquired the country,
and any after attempt to purchase it from the Indians
would have been considered and treated as an invasion
of the territories of France.
By the 20th article of the same treaty, Spain ceded
Florida, with its dependencies and all the country she
claimed east or southeast of the Mississippi, to Great
Britain. Great part of this territory also was in
possession of the Indians.
By a secret treaty which was executed about the same
time, France ceded Louisiana to Spain, and Spain has
since retroceded the same country to France. At the
time both of its cession and retrocession, it was
occupied chiefly by the Indians.
Thus all the nations of Europe who have acquired
territory on this continent have asserted in themselves
and have recognized in others the exclusive right of the
discoverer to appropriate the lands occupied by the
Indians. Have the American states rejected or adopted
this principle?
By the treaty which concluded the war of our revolution,
Great Britain relinquished all claim not only to the
government, but to the "propriety and territorial rights
of the United States" whose boundaries were fixed in
the second article. By this treaty the powers of
government and the right to soil which had previously
been in Great Britain passed definitively to these states.
We had before taken possession of them by declaring
independence, but neither the declaration of
independence nor the treaty confirming it could give us
more than that which we before possessed or to which
Great Britain was before entitled. It has never been
doubted that either the United States or the several
states had a clear title to all the lands within the
boundary lines described in the treaty, subject only to
the Indian right of occupancy, and that the exclusive
power to extinguish that right was vested in that
government which might constitutionally exercise it.
Virginia, particularly, within whose chartered limits the
land in controversy lay, passed an act in the year 1779
declaring her
"exclusive right of preemption from the Indians of all
the lands within the limits of her own chartered
territory, and that no person or persons whatsoever
have or ever had a right to purchase any lands within
the same from any Indian nation except only persons
duly authorized to make such purchase, formerly for the
use and benefit of the colony and lately for the
Commonwealth."
The act then proceeds to annul all deeds made by
Indians to individuals for the private use of the
purchasers.
Without ascribing to this act the power of annulling
vested rights or admitting it to countervail the
testimony furnished by the marginal note opposite to
the title of the law forbidding purchases from the
Indians in the revisals of the Virginia statutes stating
that law to be repealed, it may safely be considered as
an unequivocal affirmance on the part of Virginia of the
broad principle which had always been maintained that
the exclusive right to purchase from the Indians resided
in the government.
In pursuance of the same idea, Virginia proceeded at the
same session to open her land office for the sale of that
country which now constitutes Kentucky, a country
every acre of which was then claimed and possessed by
Indians, who maintained their title with as much
persevering courage as was ever manifested by any
people.
The states, having within their chartered limits different
portions of territory covered by Indians, ceded that
territory generally to the United States on conditions
expressed in their deeds of cession, which demonstrate
the opinion that they ceded the soil as well as
jurisdiction, and that in doing so they granted a
productive fund to the government of the Union. The
lands in controversy lay within the chartered limits of
Virginia, and were ceded with the whole country
northwest of the River Ohio. This grant contained
reservations and stipulations which could only be made
by the owners of the soil, and concluded with a
stipulation that
"all the lands in the ceded territory not reserved should
be considered as a common fund for the use and benefit
of such of the United States as have become or shall
become members of the confederation, . . . according to
their usual respective proportions in the general charge
and expenditure, and shall be faithfully and bona
fide disposed of for that purpose, and for no other use
or purpose whatsoever."
The ceded territory was occupied by numerous and
warlike tribes of Indians, but the exclusive right of the
United States to extinguish their title and to grant the
soil has never, we believe, been doubted. After these
states became independent, a controversy subsisted
between them and Spain respecting boundary. By the
treaty of 1795, this controversy was adjusted and Spain
ceded to the United States the territory in question. This
territory, though claimed by both nations, was chiefly in
the actual occupation of Indians.
The magnificent purchase of Louisiana was the purchase
from France of a country almost entirely occupied by
numerous tribes of Indians who are in fact independent.
Yet any attempt of others to intrude into that country
would be considered as an aggression which would
justify war.
Our late acquisitions from Spain are of the same
character, and the negotiations which preceded those
acquisitions recognize and elucidate the principle which
has been received as the foundation of all European title
in America.
The United States, then, has unequivocally acceded to
that great and broad rule by which its civilized
inhabitants now hold this country. They hold and assert
in themselves the title by which it was acquired. They
maintain, as all others have maintained, that discovery
gave an exclusive right to extinguish the Indian title of
occupancy either by purchase or by conquest, and gave
also a right to such a degree of sovereignty as the
circumstances of the people would allow them to
exercise.
The power now possessed by the government of the
United States to grant lands, resided, while we were
colonies, in the Crown, or its grantees. The validity of
the titles given by either has never been questioned in
our courts. It has been exercised uniformly over
territory in possession of the Indians. The existence of
this power must negative the existence of any right
which may conflict with and control it. An absolute title
to lands cannot exist at the same time in different
persons or in different governments. An absolute must
be an exclusive title, or at least a title which excludes all
others not compatible with it. All our institutions
recognize the absolute title of the Crown, subject only
to the Indian right of occupancy, and recognize the
absolute title of the Crown to extinguish that right. This
is incompatible with an absolute and complete title in
the Indians.
We will not enter into the controversy whether
agriculturists, merchants, and manufacturers have a
right on abstract principles to expel hunters from the
territory they possess or to contract their limits.
Conquest gives a title which the courts of the conqueror
cannot deny, whatever the private and speculative
opinions of individuals may be, respecting the original
justice of the claim which has been successfully
asserted. The British government, which was then our
government and whose rights have passed to the United
States, asserted title to all the lands occupied by Indians
within the chartered limits of the British colonies. It
asserted also a limited sovereignty over them and the
exclusive right of extinguishing the title which
occupancy gave to them. These claims have been
maintained and established as far west as the River
Mississippi by the sword. The title to a vast portion of
the lands we now hold originates in them. It is not for
the courts of this country to question the validity of this
title or to sustain one which is incompatible with it.
Although we do not mean to engage in the defense of
those principles which Europeans have applied to Indian
title, they may, we think, find some excuse, if not
justification, in the character and habits of the people
whose rights have been wrested from them.
The title by conquest is acquired and maintained by
force. The conqueror prescribes its limits. Humanity,
however, acting on public opinion, has established, as a
general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as
eligible as is compatible with the objects of the
conquest. Most usually, they are incorporated with the
victorious nation, and become subjects or citizens of the
government with which they are connected. The new
and old members of the society mingle with each other;
the distinction between them is gradually lost, and they
make one people. Where this incorporation is
practicable, humanity demands and a wise policy
requires that the rights of the conquered to property
should remain unimpaired; that the new subjects should
be governed as equitably as the old, and that confidence
in their security should gradually banish the painful
sense of being separated from their ancient
connections, and united by force to strangers.
When the conquest is complete and the conquered
inhabitants can be blended with the conquerors or
safely governed as a distinct people, public opinion,
which not even the conqueror can disregard, imposes
these restraints upon him, and he cannot neglect them
without injury to his fame and hazard to his power.
But the tribes of Indians inhabiting this country were
fierce savages whose occupation was war and whose
subsistence was drawn chiefly from the forest. To leave
them in possession of their country was to leave the
country a wilderness; to govern them as a distinct
people was impossible because they were as brave and
as high spirited as they were fierce, and were ready to
repel by arms every attempt on their independence.
What was the inevitable consequence of this state of
things? The Europeans were under the necessity either
of abandoning the country and relinquishing their
pompous claims to it or of enforcing those claims by the
sword, and by the adoption of principles adapted to the
condition of a people with whom it was impossible to
mix and who could not be governed as a distinct society,
or of remaining in their neighborhood, and exposing
themselves and their families to the perpetual hazard of
being massacred.
Frequent and bloody wars, in which the whites were not
always the aggressors, unavoidably ensued. European
policy, numbers, and skill prevailed. As the white
population advanced, that of the Indians necessarily
receded. The country in the immediate neighborhood of
agriculturists became unfit for them. The game fled into
thicker and more unbroken forests, and the Indians
followed. The soil to which the Crown originally claimed
title, being no longer occupied by its ancient inhabitants,
was parceled out according to the will of the sovereign
power and taken possession of by persons who claimed
immediately from the Crown or mediately through its
grantees or deputies.
That law which regulates and ought to regulate in
general the relations between the conqueror and
conquered was incapable of application to a people
under such circumstances. The resort to some new and
different rule better adapted to the actual state of
things was unavoidable. Every rule which can be
suggested will be found to be attended with great
difficulty.
However extravagant the pretension of converting the
discovery of an inhabited country into conquest may
appear; if the principle has been asserted in the first
instance, and afterwards sustained; if a country has
been acquired and held under it; if the property of the
great mass of the community originates in it, it becomes
the law of the land and cannot be questioned. So, too,
with respect to the concomitant principle that the
Indian inhabitants are to be considered merely as
occupants, to be protected, indeed, while in peace, in
the possession of their lands, but to be deemed
incapable of transferring the absolute title to others.
However this restriction may be opposed to natural
right, and to the usages of civilized nations, yet if it be
indispensable to that system under which the country
has been settled, and be adapted to the actual condition
of the two people, it may perhaps be supported by
reason, and certainly cannot be rejected by courts of
justice.
This question is not entirely new in this Court. The case
of Fletcher v. Peck grew out of a sale made by the State
of Georgia of a large tract of country within the limits of
that state, the grant of which was afterwards resumed.
The action was brought by a subpurchaser on the
contract of sale, and one of the covenants in the deed
was that the State of Georgia was, at the time of sale,
seized in fee of the premises. The real question
presented by the issue was whether the seizin in fee
was in the State of Georgia or in the United States. After
stating that this controversy between the several states
and the United States had been compromised, the court
thought in necessary to notice the Indian title, which,
although entitled to the respect of all courts until it
should be legitimately extinguished, was declared not to
be such as to be absolutely repugnant to a seizin in fee
on the part of the state.
This opinion conforms precisely to the principle which
has been supposed to be recognized by all European
governments from the first settlement of America. The
absolute ultimate title has been considered as acquired
by discovery, subject only to the Indian title of
occupancy, which title the discoverers possessed the
exclusive right of acquiring. Such a right is no more
incompatible with a seizin in fee than a lease for years,
and might as effectually bar an ejectment.
Another view has been taken of this question which
deserves to be considered. The title of the Crown,
whatever it might be, could be acquired only by a
conveyance from the Crown. If an individual might
extinguish the Indian title for his own benefit, or in
other words might purchase it, still he could acquire
only that title. Admitting their power to change their
laws or usages so far as to allow an individual to
separate a portion of their lands from the common
stock and hold it in severalty, still it is a part of their
territory and is held under them by a title dependent on
their laws. The grant derives its efficacy from their will,
and if they choose to resume it and make a different
disposition of the land, the courts of the United States
cannot interpose for the protection of the title. The
person who purchases lands from the Indians within
their territory incorporates himself with them so far as
respects the property purchased; holds their title under
their protection and subject to their laws. If they annul
the grant, we know of no tribunal which can revise and
set aside the proceeding. We know of no principle which
can distinguish this case from a grant made to a native
Indian, authorizing him to hold a particular tract of land
in severalty.
As such a grant could not separate the Indian from his
nation, nor give a title which our courts could
distinguish from the title of his tribe, as it might still be
conquered from, or ceded by his tribe, we can perceive
no legal principle which will authorize a court to say that
different consequences are attached to this purchase
because it was made by a stranger. By the treaties
concluded between the United States and the Indian
nations whose title the plaintiffs claim, the country
comprehending the lands in controversy has been ceded
to the United States without any reservation of their
title. These nations had been at war with the United
States, and had an unquestionable right to annul any
grant they had made to American citizens. Their cession
of the country without a reservation of this land affords
a fair presumption that they considered it as of no
validity. They ceded to the United States this very
property, after having used it in common with other
lands as their own, from the date of their deeds to the
time of cession, and the attempt now made, is to set up
their title against that of the United States.
The proclamation issued by the King of Great Britain in
1763 has been considered, and we think with reason, as
constituting an additional objection to the title of the
plaintiffs.
By that proclamation, the Crown reserved under its own
dominion and protection, for the use of the Indians, "all
the land and territories lying to the westward of the
sources of the rivers which fall into the sea from the
west and northwest," and strictly forbade all British
subjects from making any purchases or settlements
whatever or taking possession of the reserved lands.
It has been contended that in this proclamation, the
King transcended his constitutional powers, and the
case of Campbell v. Hall, reported by Cowper, is relied
on to support this position.
It is supposed to be a principle of universal law that if an
uninhabited country be discovered by a number of
individuals who acknowledge no connection with and
owe no allegiance to any government whatever, the
country becomes the property of the discoverers, so far
at least as they can use it. They acquire a title in
common. The title of the whole land is in the whole
society. It is to be divided and parceled out according to
the will of the society, expressed by the whole body or
by that organ which is authorized by the whole to
express it.
If the discovery be made and possession of the country
be taken under the authority of an existing government,
which is acknowledged by the emigrants, it is supposed
to be equally well settled, that the discovery is made for
the whole nation, that the country becomes a part of
the nation, and that the vacant soil is to be disposed of
by that organ of the government which has the
constitutional power to dispose of the national domains,
by that organ in which all vacant territory is vested by
law.
According to the theory of the British Constitution, all
vacant lands are vested in the Crown, as representing
the nation, and the exclusive power to grant them is
admitted to reside in the Crown as a branch of the royal
prerogative. It has been already shown that this
principle was as fully recognized in America as in the
Island of Great Britain. All the lands we hold were
originally granted by the Crown, and the establishment
of a regal government has never been considered as
impairing its right to grant lands within the chartered
limits of such colony. In addition to the proof of this
principle, furnished by the immense grants already
mentioned of lands lying within the chartered limits of
Virginia, the continuing right of the Crown to grant lands
lying within that colony was always admitted. A title
might be obtained either by making an entry with the
surveyor of a county in pursuance of law or by an order
of the governor in council, who was the deputy of the
King, or by an immediate grant from the Crown. In
Virginia, therefore, as well as elsewhere in the British
dominions, the complete title of the Crown to vacant
lands was acknowledged.
So far as respected the authority of the Crown, no
distinction was taken between vacant lands and lands
occupied by the Indians. The title, subject only to the
right of occupancy by the Indians, was admitted to be in
the King, as was his right to grant that title. The lands,
then, to which this proclamation referred were lands
which the King had a right to grant, or to reserve for the
Indians.
According to the theory of the British Constitution, the
royal prerogative is very extensive so far as respects the
political relations between Great Britain and foreign
nations. The peculiar situation of the Indians, necessarily
considered in some respects as a dependent and in
some respects as a distinct people occupying a country
claimed by Great Britain, and yet too powerful and
brave not to be dreaded as formidable enemies,
required that means should be adopted for the
preservation of peace, and that their friendship should
be secured by quieting their alarms for their property.
This was to be effected by restraining the
encroachments of the whites, and the power to do this
was never, we believe, denied by the colonies to the
Crown.
In the case of Campbell v. Hall, that part of the
proclamation was determined to be illegal, which
imposed a tax on a conquered province, after a
government had been bestowed upon it. The
correctness of this decision cannot be questioned, but
its application to the case at bar cannot be admitted.
Since the expulsion of the Stuart family, the power of
imposing taxes by proclamation has never been claimed
as a branch of regal prerogative, but the powers of
granting, or refusing to grant, vacant lands, and of
restraining encroachments on the Indians have always
been asserted and admitted.
The authority of this proclamation, so far as it respected
this continent, has never been denied, and the titles it
gave to lands have always been sustained in our courts.
In the argument of this cause, the counsel for the
plaintiffs have relied very much on the opinions
expressed by men holding offices of trust, and on
various proceedings in America to sustain titles to land
derived from the Indians.
The collection of claims to lands lying in the western
country made in the 1st volume of the Laws of the
United States has been referred to, but we find nothing
in that collection to support the argument. Most of the
titles were derived from persons professing to act under
the authority of the government existing at the time,
and the two grants under which the plaintiffs claim are
supposed by the person under whose inspection the
collection was made to be void, because forbidden by
the royal proclamation of 1763. It is not unworthy of
remark that the usual mode adopted by the Indians for
granting lands to individuals has been to reserve them in
a treaty or to grant them under the sanction of the
commissioners with whom the treaty was negotiated.
The practice in such case to grant to the Crown for the
use of the individual is some evidence of a general
understanding that the validity even of such a grant
depended on its receiving the royal sanction.
The controversy between the Colony of Connecticut and
the Mohegan Indians depended on the nature and
extent of a grant made by those Indians to the colony;
on the nature and extent of the reservations made by
the Indians, in their several deeds and treaties, which
were alleged to be recognized by the legitimate
authority; and on the violation by the colony of rights
thus reserved and secured. We do not perceive in that
case any assertion of the principle that individuals might
obtain a complete and valid title from the Indians.
It has been stated that in the memorial transmitted
from the Cabinet of London to that of Versailles, during
the controversy between the two nations respecting
boundary which took place in 1755, the Indian right to
the soil is recognized. But this recognition was made
with reference to their character as Indians and for the
purpose of showing that they were fixed to a particular
territory. It was made for the purpose of sustaining the
claim of His Britannic Majesty to dominion over them.
The opinion of the Attorney and Solicitor General, Pratt
and Yorke, have been adduced to prove that in the
opinion of those great law officers, the Indian grant
could convey a title to the soil without a patent
emanating from the Crown. The opinion of those
persons would certainly be of great authority on such a
question, and we were not a little surprised when it was
read, at the doctrine it seemed to advance. An opinion
so contrary to the whole practice of the Crown and to
the uniform opinions given on all other occasions by its
great law officers ought to be very explicit and
accompanied by the circumstances under which it was
given, and to which it was applied before we can be
assured that it is properly understood. In a pamphlet
written for the purpose of asserting the Indian title,
styled "Plain Facts," the same opinion is quoted, and is
said to relate to purchases made in the East Indies. It is,
of course, entirely inapplicable to purchases made in
America. Chalmers, in whose collection this opinion is
found, does not say to whom it applies, but there is
reason to believe that the author of Plain Facts is, in this
respect, correct. The opinion commences thus:
"In respect to such places as have been or shall be
acquired by treaty or grant from any of the Indian
princes or governments, your Majesty's letters patent
are not necessary."
The words "princes or governments" are usually applied
to the East Indians, but not to those of North America.
We speak of their sachems, their warriors, their
chiefmen, their nations or tribes, not of their "princes or
governments." The question on which the opinion was
given, too, and to which it relates, was whether the
King's subjects carry with them the common law
wherever they may form settlements. The opinion is
given with a view to this point, and its object must be
kept in mind while construing its expressions.
Much reliance is also placed on the fact, that many
tracts are now held in the United States under the
Indian title, the validity of which is not questioned.
Before the importance attached to this fact is conceded,
the circumstances under which such grants were
obtained, and such titles are supported, ought to be
considered. These lands lie chiefly in the eastern states.
It is known that the Plymouth Company made many
extensive grants which, from their ignorance of the
country, interfered with each other. It is also known that
Mason to whom New Hampshire, and Gorges, to whom
Maine was granted, found great difficulty in managing
such unwieldy property. The country was settled by
emigrants, some from Europe, but chiefly from
Massachusetts, who took possession of lands they
found unoccupied, and secured themselves in that
possession by the best means in their power. The
disturbances in England, and the civil war and revolution
which followed those disturbances, prevented any
interference on the part of the mother country, and the
proprietors were unable to maintain their title. In the
meantime, Massachusetts claimed the country and
governed it. As her claim was adversary to that of the
proprietors, she encouraged the settlement of persons
made under her authority, and encouraged likewise
their securing themselves in possession, by purchasing
the acquiescence and forbearance of the Indians. After
the restoration of Charles II, Gorges and Mason, when
they attempted to establish their title, found themselves
opposed by men who held under Massachusetts and
under the Indians. The title of the proprietors was
resisted, and though in some cases compromises were
made and in some, the opinion of a court was given
ultimately in their favor, the juries found uniformly
against them. They became wearied with the struggle,
and sold their property. The titles held under the Indians
were sanctioned by length of possession, but there is no
case, so far as we are informed, of a judicial decision in
their favor.
Much reliance has also been placed on a recital
contained in the charter of Rhode Island, and on a letter
addressed to the governors of the neighboring colonies,
by the King's command, in which some expressions are
inserted, indicating the royal approbation of titles
acquired from the Indians.
The charter to Rhode Island recites
"That the said John Clark and others had transplanted
themselves into the midst of the Indian nations, and
were seized and possessed, by purchase and consent of
the said natives, to their full content, of such lands,"
&c. And the letter recites, that
"Thomas Chifflinch and others, having, in the right of
Major Asperton, a just propriety in the Narraghanset
Country, in New England, by grants from the native
princes of that country, and being desirous to improve it
into an English colony, . . . are yet daily disturbed."
The impression this language might make, if viewed
apart from the circumstances under which it was
employed, will be effaced, when considered in
connection with those circumstances.
In the year 1635, the Plymouth Company surrendered
their charter to the Crown. About the same time, the
religious dissentions of Massachusetts expelled from
that colony several societies of individuals, one of which
settled in Rhode Island, on lands purchased from the
Indians. They were not within the chartered limits of
Massachusetts, and the English government was too
much occupied at home to bestow its attention on this
subject. There existed no authority to arrest their
settlement of the country. If they obtained the Indian
title, there were none to assert the title of the Crown. which was rendered against them in the District Court of
Under these circumstances, the settlement became Illinois.
considerable. Individuals acquired separate property in Judgment affirmed with costs.
lands which they cultivated and improved; a
government was established among themselves, and no
power existed in America which could rightfully
interfere with it.
On the restoration of Charles II, this small society
hastened to acknowledge his authority, and to solicit his
confirmation of their title to the soil, and to jurisdiction
over the country. Their solicitations were successful, and
a charter was granted to them, containing the recital
which has been mentioned.
It is obvious that this transaction can amount to no
acknowledgment that the Indian grant could convey a
title paramount to that of the Crown, or could in itself
constitute a complete title. On the contrary, the charter
of the Crown was considered as indispensable to its
completion.
It has never been contended that the Indian title
amounted to nothing. Their right of possession has
never been questioned. The claim of government
extends to the complete ultimate title, charged with this
right of possession and to the exclusive power of
acquiring that right. The object of the Crown was to
settle the seacoast of America, and when a portion of it
was settled, without violating the rights of others, by
persons professing their loyalty, and soliciting the royal
sanction of an act, the consequences of which were
ascertained to be beneficial, it would have been as
unwise as ungracious to expel them from their
habitations, because they had obtained the Indian title
otherwise than through the agency of government. The
very grant of a charter is an assertion of the title of the
Crown, and its words convey the same idea. The country
granted is said to be "our island called Rhode Island,"
and the charter contains an actual grant of the soil as
well as of the powers of government. The letter was
written a few months before the charter was issued,
apparently at the request of the agents of the intended
colony, for the sole purpose of preventing the
trespasses of neighbors, who were disposed to claim
some authority over them. The King, being willing
himself to ratify and confirm their title was, of course,
inclined to quiet them in their possession.
This charter and this letter certainly sanction a previous
unauthorized purchase from Indians under the
circumstances attending that particular purchase, but
are far from supporting the general proposition, that a
title acquired from the Indians would be valid against a
title acquired from the Crown, or without the
confirmation of the Crown.
The acts of the several colonial assemblies prohibiting
purchases from the Indians have also been relied on as
proving that, independent of such prohibitions, Indian
deeds would be valid. But we think this fact, at most,
equivocal. While the existence of such purchases would
justify their prohibition, even by colonies which
considered Indian deeds as previously invalid, the fact
that such acts have been generally passed, is strong
evidence of the general opinion, that such purchases are
opposed by the soundest principles of wisdom and
national policy.
After bestowing on this subject a degree of attention
which was more required by the magnitude of the
interest in litigation, and the able and elaborate
arguments of the bar, than by its intrinsic difficulty, the
court is decidedly of opinion, that the plaintiffs do not
exhibit a title which can be sustained in the courts of the
United States, and that there is no error in the judgment
 2. U.S. Supreme Court
Chavez v. United States, 175 U.S. 552 (1899)
Chavez v. United States
No. 14
Argued October 17-18, 1899
Decided December 22, 1899
175 U.S. 552
APPEAL FROM THE COURT
OF PRIVATE LAND CLAIMS
Syllabus
In Mexico, in 1831, a departmental assembly or
territorial deputation had no power or authority to
make a grant of lands, and the fact that the governor
presided at a meeting of the territorial deputation at the
time such a grant was made, makes no difference, as
the power to make the grant was exclusively in the
governor, and the territorial deputation had no
jurisdiction in the matter.
The statement of the case will be found in the opinion
of the Court.
MR. JUSTICE PECKHAM delivered the opinion of the
Court.
This is an appeal from a judgment of the Court of Private
Land Claims refusing to confirm the title of the appellant
to some 5,000 acres of land in New Mexico, about one
league from the Manzano grant. The title is evidenced
by a grant by the territorial deputation of New Mexico,
made in 1831, and the first question in the case relates
to the authority of that body to make the grant.
It is also contended that if the territorial deputation did
not have the power to make the grant, and that power
rested with the governor of the department, his
presence in the territorial deputation as its ex
officio president when the grant was made, and, so far
as the record shows, his not protesting but acquiescing
in its action, was equivalent to and the same as a grant
made by himself in his official character as governor.
It is further stated that, by reason of the action of the
governor in writing the letter dated December 22, 1831,
and hereinafter set forth, that officer ratified and
confirmed the grant, and in effect made it his own.
It appears from the record that, on February 28, 1831,
citizen Nerio Antonio Montoya petitioned the honorable
corporation of Tome, and asked it that it would append
to his petition its own report to the most excellent
deputation, so that that body should grant him the land
described in the petition. The corporation of Tome, on
the 19th of March, 1831, granted the prayer of the
petitioner, and adopted a resolution which provided
that his petition should
"go before the most excellent territorial deputation,
which, as the authority competent, may accede to the
donation of the land prayed for by the said petitioner
without injuring the pastures and watering places for
the passers-by."
The resolution was accordingly forwarded to the
territorial deputation, and that body on November 12,
1831, took action as follows:
"(Extract from record of proceedings of the territorial
deputation,"
"session of November 12, 1831)"
"The foregoing record having been read and approved, a
petition of citizen Nerio Montoya, a resident of Valencia,
in which he asks for the donation, for agricultural
purposes, of a tract of vacant land in the Manzano
within the limits of the Ojo de en Medio as far as the
rancheria, was taken up and the report of the
respectable corporation council of Tome, in which it is
set forth that there is no objection to the concession of
the said land, having been heard it was ordered that it
be granted."
"* * * *"
"The session was adjourned."
"Santiago Abreu, President (Rubrick)"
"Juan Rafael Ortiz (Rubrick)"
"Anto. Jose Martinez (Rubrick)"
"Jose Manl. Salazar (Rubrick)"
"Teodosio Quintana (Rubrick)"
"Ramon Abreu, Secretary (Rubrick)"
In accordance with this action, the following direction by
the deputation, signed by its secretary, was given the
alcalde of the proper jurisdiction:
"Santa Fe, November 12, 1831"
"The honorable the deputation of this territory, having
received the report of the constitutional council of
Tome, appended to this petition, has resolved in this
day's session to grant the land prayed for by the
petitioner, charging the alcalde of said jurisdiction to
execute the document that will secure the grantee in
the grant hereby made to him."
"Abreu, Secretary"
The alcalde thereupon executed a document which,
after reciting that,
"In obedience to the decree of the most excellent
deputation of this territory made under date of
November 12 of the current year on the margin of the
petition which, under date of February 28, the citizen
Nerio Antonio Montoya, resident of this said
jurisdiction, presented to this honorable council, and on
which petition is recorded the report made by this
council, in accordance with which report its excellency
has deemed it proper to accede to the petition of
Montoya, granting him full and formal possession of the
tract he prayed for,"
etc., declared that
"Montoya, whenever he may choose or think best to do,
may notify me to proceed with him to the locality to
place him in possession of the property granted him,
with all the customary formality,"
etc. This was dated December 7, 1831, and signed by
the alcalde.
On December 12 in the same year, the same alcalde,
"in compliance with the provision made by this most
excellent deputation of this territory and the
notification given me by the citizen Nerio Antonio
Montoya,"
proceeded with Montoya to the tract of land granted
him and placed him in possession thereof, the act being
signed by the alcalde.
There was also put in evidence on the trial of the action
in the court below, on the question of ratification, the
following:
"Office of the Political Chief of New Mexico"
"By your official communication of the 20th instant, I am
advised of your having executed the decree of the most
excellent deputation granting to the citizen Nerio
Antonio Montoya a tract of land."
"But in regard to the inquiry you make of me, as to how
much your fee should be, I inform you that I am
ignorant in the premises, and that you may, if you
choose to do, put the question to the assessor (asesor),
who is the officer to whom it belongs, to advise the
justices of first instance in such cases."
"God and Liberty. Santa Fe, December 22, 1831."
"Jose Antonio Chavez"
"To Alderman Miguel Olona"
Various mesne conveyances were put in evidence on the
trial, showing the transfer to the appellant of whatever
title Montoya had to the land described, and it was then
admitted that the appellant herein has succeeded to all
the rights of the original grantee, if any, in this case.
Evidence of possession under this grant was also given.
The court below held that the departmental assembly or
territorial deputation had no power or authority to
make a grant of lands at the time the grant in this case
was attempted to be made, and that the fact that the
governor may have presided at the meeting at the time
the action was taken made no difference, as the power
to make the grant was exclusively in the governor, and
the territorial deputation had no jurisdiction in the
matter. The claim was therefore rejected.
We think that in thus deciding, the court below was
right.
We refer to some of the cases which show the territorial
deputation did not have the power to make a grant, but
only the power to subsequently approve it.
In United States v. Vallejo, 1 Black 541, it was held that
the Mexican law of 1824 and the regulations of 1828
altered and repealed the Spanish system of disposing of
public lands, and that the law and the regulations from
the time of their passage were the only laws of Mexico
on the subject of granting public lands in the territories.
It was also held that the governor did not possess any
power to make grants public lands independently of
that conferred by the act of 1824 and the regulations of
1828. Mr. Justice Nelson, who delivered the opinion of
the Court in that case, refers to the various sections of
the law of 1824, and also to the regulations of
November, 1828, for the purpose of showing that the
governors of the territories were authorized to grant
vacant lands within their respective territories with the
object of cultivation or settlement, and that the grants
made by them to individuals or families were not to be
definitively valid without the previous consent of the
departmental assembly, and when the grant petitioned
for had been definitively made a patent, signed by the
governor, was to be issued, which was to serve as a title
to the party. This case did not decide that the territorial
deputation could not make a valid grant, because the
grant was made by the governor, but the various
extracts from the law and regulations indicate very
plainly that the authority to initiate a grant of public
lands existed in the governor alone, and not in the
assembly.
In United States v. Vigil, 13 Wall. 449, it was held that
departmental assemblies (territorial deputations) had
no power to make a grant.
In his argument at the bar, counsel for this appellant
contended that the territorial deputation had lawful
power and authority to make the grant to Montoya, and
in order to maintain that proposition, stated that it was
necessary to discuss the effect of the decision of this
Court in United States v. Vigil. He claimed that what was
said as to the lack of power in the territorial deputation
to make a grant was not necessary to the decision of the
Court in that case, and that such expressions as were
therein used regarding the question would not
therefore constitute a precedent now binding on this
Court.
In Vigil's case, there was a petition to the departmental
assembly, through the Governor of New Mexico, asking
for a grant of land which in fact amounted to over two
million, the grantees binding themselves, if the grant
were made, to construct two wells for the relief and aid
of travelers, and to establish two factories for the use of
the state, and to protect them from hostile invasion.
The governor transmitted the petition to the assembly,
but declined to recommend that favorable action should
be taken upon it. The assembly, notwithstanding this
refusal, granted the tract on January 10, 1846, for the
purpose of constructing wells and cultivating the land,
etc., and the question was as to the validity of this grant.
The opinion was delivered by Mr. Justice Davis, who
stated that it had been repeatedly decided by this Court
that the only laws in force in the territories of Mexico,
for the disposition of public lands, with the exception of
those relating to missions and towns, were the act of
the Mexican Congress of 1824 and the regulations of
1828. In the course of his opinion, he said:
"These regulations conferred on the governors of the
territories, 'the political chiefs,' as they are called, the
authority to grant vacant lands, and did not delegate it
to the departmental assembly. It is true the grant was
not complete until the approval of the assembly, and in
this sense the assembly and governor acted
concurrently, but the initiative must be taken by the
governor. He was required to act in the first instance --
to decide whether the petitioner was a fit person to
receive the grant, and whether the land itself could be
granted without prejudice to the public or individuals. In
case the information was satisfactory on these points,
he was authorized to make the grant, and at the proper
time to lay it before the assembly, who were required to
give or withhold their consent. They were in this respect
an advisory body to the governor, and sustained the
same relation to him that the Senate of the United
States does to the President in the matter of
appointments and treaties."
A subsequent portion of the opinion dealt with the case
upon the assumption that the grant had been made by
the governor, and even in that case it was said the grant
would have been invalid because it violated the
fundamental rule on which the right of donation was
placed by the law; that the essential element of
colonization was wanting, and that the number of acres
granted was enormously in excess of the maximum
quantity grantable under the law. This in nowise
affected the prior ground upon which the opinion was
based, that the departmental assembly had no power to
make the grant. That was the essential and material
question directly involved in the case, while the second
ground mentioned was based upon an assumption that,
even if the governor had made the grant, it would still
have been void for the reason stated. The court did not
base its decision that the departmental assembly had no
power to make the grant because of its enormous
extent. It held that the assembly had no power to make
any grant, no matter what its size. It is, as we think, a
decision covering this case.
In Hayes v. United States, 170 U. S. 637, the grant was
by the territorial deputation of New Mexico, and it was
stated by MR. JUSTICE WHITE, speaking for the Court,
that
"it cannot be in reason held that a title to land derived
from a territory which the territorial authorities did not
own, over which they had no power of disposition, was
regularly derived from either Spain or Mexico or a State
of the Mexican nation."
No presumption that the territorial deputations had
authority to make grants can arise from the fact that in
some instances those bodies assumed to make them.
The case in this respect bears no resemblance to United
States v. Percheman, 7 Pet. 51, 32 U. S. 96, or to United
States v. Clarke, 8 Pet. 436, 33 U. S. 447, 33 U. S. 453. In
those cases, it was not denied that the governor had
authority in some circumstances to make grants, and it
was therefore held that a grant made by him was prima
facie evidence that he had not exceeded his power in
making it, and that he who denied it took upon himself
the burden of showing that the officer by making the
grant had transcended the power reposed in him. There
is in the case before us no evidence that the territorial
deputation had the power, in any event, to make grants
other than the fact that in some instances it assumed to
make them.
The cases heretofore decided in this Court, and some of
which have been above referred to, show that such fact
is inadequate to prove the existence of the authority.
It is, however, urged that the record of the action of the
territorial deputation in regard to this grant shows that
the governor and ex officio president of the deputation
was present when the deputation decided to make the
grant as petitioned for, and that his being so present
and attesting the action of the deputation was
equivalent to the making of the grant himself as
governor. We do not think so. He did not assume to
make any grant whatever, and certainly none in his
character as governor. It does not even appear beyond
doubt that he was present when the deputation made
the grant. His signature is perfectly consistent with a
mere authentication of the previous action of that body.
The petition of Montoya was addressed primarily to the
corporation of Tome, and he requested that corporation
to send his petition, approved by it, to the deputation to
make him a grant of the land described in his petition.
Acting under that request, the corporation of Tome sent
his petition to the "most excellent territorial
deputation," and asked that body to accede to the
donation of the land prayed for. In conformity to the
petition, the territorial deputation itself made the grant.
The fact that the governor, being ex officio a member of
the deputation, signed as president of that body the
record of the act of the deputation is not the equivalent
of a grant by him in his official character of governor,
nor does such act bear any resemblance to a grant by
him. No one on reading the record would get the idea
that the governor was himself making the grant, or that
he thereby intended so to do. It does not even show
that he was in favor of the grant as made by the
deputation. His signing the record constituted nothing
more than an authentication of the act of the
deputation. It purported to be nothing else. He might
have properly signed the record if in fact he had voted
against the grant, and had been opposed to the action
of the assembly. He might have signed the record as an
authentication, and yet have been absent at the time of
the action of the assembly. In any event, it was his
signature as an ex officio member or presiding officer of
the deputation, attesting or perhaps assenting to its
action, and it was not his action as governor making a
grant in that capacity. The signature by the secretary
alone, to the instrument (above set forth, dated
November 12, 1831) which recites the previous action
of the deputation, and charges the alcalde of the
jurisdiction to execute the document which will secure
the grantee in the grant, is simply a direction to the
alcalde, and has no materiality upon this branch of the
case other than as confirming the view that the grant
was solely that of the deputation.
We cannot hold that, when the power was given under
the laws of Mexico to the governor to make grants of
lands, he in any manner exercised that power, or
performed an act equivalent to its exercise, by
presiding ex officio at a meeting of the territorial
deputation which made a grant of lands in conformity to
a petition solely addressed to it and by authenticating as
president the action of the deputation in deciding that
the grant should be made.
The two positions, president of the deputation and
governor, are separate and distinct, and the action of a
governor merely as president of the deputation, and of
the nature above described is not in any sense and does
not purport to be his separate and independent action
as governor, making a grant of lands pursuant to a
petition addressed to him officially. As governor, he
might refuse the grant upon a petition addressed to
himself, when as president of the deputation he might
sign the record authenticating its action in regard to a
petition addressed solely to that body. And it is obvious
from the wording of the record that the president of the
deputation was not assuming to act as governor upon a
petition addressed to himself, but only as the president
of the deputation. It might have been that he
acquiesced in the assumption by the deputation of the
right to make the grant, but his act of signing the record
cannot be tortured into a grant or as the equivalent of a
grant by himself.
It is further urged that there has been what amounts to
a grant by the governor by reason of his letter of
December 22, 1831, signed by him and above set forth,
thus, as is claimed, ratifying the grant of the deputation
and making it his own.
The only evidence that the person who signed the letter
was the governor at that time is the heading of the
letter, "Office of the Political Chief of New Mexico." It
will be also noted that the person signing it is not the
same one who signed the record of November 12, 1831,
as president of the deputation. But, assuming that
Chavez was governor in December, 1831, when he
signed the letter, he therein simply acknowledged the
receipt of the official communication of the alcalde, in
which that officer reports that he had executed the
decree "of the most excellent deputation, granting to
the citizen Nerio Antonio Montoya a tract of land." In
reply to the question as to how much the alcalde's fee
should be, he answered that he was ignorant of the
premises, and advised the alcalde to put the question to
the assessor, the officer to whom it belonged to advise
the justices in the first instances in such cases.
Now what does the governor ratify by this letter?
Nothing.
The contention in favor of the grant, based upon the
letter, is that, assuming the governor had power to
make the grant, it was his duty when he learned from
the report of the alcalde that one had been made by the
deputation, and that possession had been delivered
under it, to protest against and to deny the power of the
deputation to make such grant, and unless he did so, his
silence was evidence of the fact that he not only
approved the act of the deputation in making the grant,
but that he approved it as his own, and that such
approval was the same as if the governor had himself
made the grant, and in substance and effect it was his
grant.
This contention, we think, is not founded upon any legal
principle, and is in itself unreasonable. The writer of the
letter is not the same person who signed the record of
the proceedings of the deputation. The report of the
alcalde gave him the information which, it is true, he
may have had before, that the deputation had assumed
the power to grant the land. His protest as to the
legality of such action would not have altered the fact
that it had occurred, while, on the other hand, his
silence might simply be construed as evidence of his
unreadiness at that time to dispute, or possibly of his
belief in the validity of the action of the deputation. Or
his silence might have been simply the result of his
approval of the act of the alcalde in obeying the
commands of the deputation, while he thought it was
not the proper occasion upon which to contest or deny
the validity of the grant which the deputation had
actually made. Many reasons for his silence might be
suggested, but the claim that it equaled in law a positive
grant by the governor is, as we think, untenable.
While such silence is entirely consistent with other
views that might have been held by the governor, it
certainly cannot properly be ascribed, as a legal
inference from the facts stated, to his desire to make
the grant himself, nor could it be said that his desire (if
he had it) was the legal equivalent of an actual grant.
His knowledge that another body had assumed to make
a grant is not equivalent to the making of the grant
himself, and he was the person who alone had power to
make it. There is nothing in the letter which aids the
plaintiff herein.
Finally, it distinctly appears that the possession of the
parties is insufficient in length of time to prove a valid
title. In United States v. Chaves, 159 U. S. 452, the
possession was under the claim of a grant made by the
governor of New Mexico to the alleged grantees. The
grant had been lost, but it had been seen and read by
witnesses, and its existence had been proved by
evidence sufficient, as was stated in the opinion
(page 159 U. S. 460), to warrant
"the finding of the court below that the complainants'
title was derived from the Republic of Mexico, and was
complete and perfect at the date when the United
States acquired sovereignty in the Territory of New
Mexico, within which the land was situated."
We do not question the correctness of the remarks
made by MR. JUSTICE SHIRAS in regard to evidence of
possession and the presumptions which may under
certain circumstances be drawn as to the existence of a
grant.
We do not deny the right or the duty of a court to
presume its existence in a proper case, in order to quiet
a title and to give to long continued possession the
quality of a rightful possession under a legal title. We
recognize and enforce such rule in the case of United
States v. Chavez, decided at this term, in which the
question is involved. We simply say in this case that the
possession was not of a duration long enough to justify
any such inference.
There is no proof of any valid grant, but, on the
contrary, the evidence offered by the plaintiff himself
and upon which he bases the title that he asks the court
to confirm, shows the existence of a grant from a body
which had no legal power to make it, and which
therefore conveyed no title whatever to its grantee, and
the evidence is, as given by the plaintiff himself, that it
was under this grant alone that possession of the lands
was taken. We cannot presume (within the time
involved in this case) that any other and valid grant was
ever made. The possession of the plaintiff and of his
grantors up to the time of the Treaty of Guadalupe
Hidalgo, in 1848, had not been long enough to presume
a grant. Crespin v. United States, 168 U. S. 208; Hayes v.
United States, 170 U. S. 637, 170 U. S. 649; Hays v.
United States, ante, 175 U. S. 248. The possession
subsequently existing, we cannot notice. Same
authorities.
We think the judgment of the court below should be
Affirmed.
ANOTHER CASE
 3.Valenton vs Marciano 3 Phil. Reports 537, 2
Off. Gaz., 434, March 30, 1904;
ANDRES VALENTON, ET AL., plaintiffs-appellants,
vs.
MANUEL MURCIANO, defendant-appellee.
Montagne and Dominguez for appellants.
Del Pan, Ortigas and Fisher for appellee.
WILLARD, J.:
I. The findings of fact made by the court below in its
decision are as follows:
First. That in the year 1860, the plaintiffs, and
each one of them, entered into the peaceful
and quiet occupation and possession of the
larger part of the lands described in the
complaint of the plaintiffs, to wit [description]:
Second. That on the date on which the
plaintiffs entered into the occupation and
possession of the said lands, as above set forth,
these lands and every part thereof were public,
untilled, and unoccupied, and belonged to the
then existing Government of the Philippine
Islands. That immediately after the occupation
and possession of the said lands by the
plaintiffs, the plaintiffs began to cultivate and
improve them in a quiet and peaceful manner.
Third. That from the said year 1860, the
plaintiffs continued to occupy and possess the
said lands, quietly and peacefully, until the year
1892, by themselves, by their agents and
tenants, claiming that they were the exclusive
owners of said lands.
Fourth. That on or about the 16th day of
January, 1892, Manuel Murciano, defendant in
this proceeding, acting on behalf of and as
attorney in fact of Candido Capulong, by
occupation a cook, denounced the said lands to
the then existing Government of the Philippine
Islands, declaring that the said lands every part
thereof were public, untilled, and unoccupied
lands belonging to the then existing
Government of the Philippine Islands, and
petitioned for the sale of the same to him.
Fifth. That before the execution of the sale
heretofore mentioned, various proceedings
were had for the survey and measurement of
the lands in question at the instance of the
defendant, Murciano, the latter acting as agent
and attorney in fact of said Candido Capulong,
a written protest, however, having been
entered against these proceedings by the
plaintiff Andres Valenton.
Sixth. That on the 14th day of July, 1892, Don
Enrique Castellvie Ibarrola, secretary of the
treasury of the Province of Tarlac, in his official
capacity as such secretary, executed a contract
of purchase and sale, by which said lands were
sold and conveyed by him to the defendant,
Manuel Murciano, as attorney for the said
Candido Capulong.
Seventh. That on the 19th day of July, 1892,
said Candido Capulong executed a contract of
purchase and sale, by which he sold and
conveyed the said lands to the defendants,
Manuel Murciano.
Eight. That from the said 14th day of July, 1892,
Manuel Murciano has at no time occupied or
possessed all of the land mentioned, but has
possessed only certain in distinct and indefinite
portions of the same. That during all this time
the plaintiffs have opposed the occupation of
the defendant, and said plaintiffs during all the
time in question have been and are in the
possession and occupation of part of the said
lands, tilling them and improving them by
themselves and by their agents and tenants.
Ninth. That never, prior to the said 14th day of
July,, 1892, has the defendant, Manuel
Murciano, been in the peaceful and quiet
possession and occupation of the said lands, or
in the peaceful and quiet occupation of any
part thereof.
Upon these facts the Court of First Instance ordered
judgment for the defendant on the ground that the
plaintiffs had lost all right to the land by not pursuing
their objections to the sale mentioned in the sixth
finding. The plaintiffs excepted to the judgment and
claim in this court that upon the facts found by the court
below judgment should have been entered in their
favor. Their contention is that in 1890 they had been in
the adverse possession of the property for thirty years;
that, applying the extra ordinary period of prescription
of thirty years, found as well in the Partidas as in the
Civil Code, they then became the absolute owners of the
land as against everyone, including the State, and that
when the State in 1892 deeded the property to the
defendant, nothing passed by the deed because the
State had nothing to convey.
The case presents, therefore, the important question
whether or not during the years from 1860 to 1890 a
private person, situated as the plaintiffs were, could
have obtained as against the State the ownership of the
public lands of the State by means of occupation. The
court finds that at the time of the entry by the plaintiff
in 1860 the lands were vacant and were public lands
belonging to the then existing Government. The
plaintiffs do not claim to have ever obtained from the
Government any deed for the lands, nor any
confirmation of their possession.
Whether in the absence of any special legislation on the
subject a general statute of limitations in which the
State was not expressly excepted would run against the
State as to its public lands we do not find it necessary to
decide. Reasons based upon public policy could be
adduced why it should not, at least as to such public
lands as are involved in this case. (See Act No. 926, sec.
67.) We are, however, of the opinion that the case at
bar must be decided, not by the general statute of
limitation contained in the Partidas, but by those special
laws which from the earliest times have regulated the
disposition of the public lands in the colonies.
Did these special laws recognize any right of prescription
against the State as to these lands; and if so, to what
extend was it recognizes? Laws of very early date
provided for the assignment of public lands to the
subjects of the Crown. Law 1, title 12, book 4 of
the Recopilacion de Leyes de las Indias is an example of
them, and is as follows:
In order that our subjects may be encouraged
to undertake the discovery and settlement of
the Indies, and that they may live with the
comfort and convenience which we desire, it is
our will that there shall be distributed to all
those who shall go out to people the new
territories, houses, lots, lands, peonias,
and caballerias in the towns and places which
may be assigned to them by the governor of
the new settlement, who in apportioning the
lands, will distinguish between gentlemen and
peasants, and those of lower degree and merit,
and who will add to the possessions and better
the condition of the grantees, according to the
nature of the services rendered by them, and
with a view to the promotion of agriculture and
stock raising. To those who shall have labored
and established a home on said lands and who
shall have resided in the said settlement for a
period of four years we grant the right
thereafter to sell and in every other manner to
exercise their free will over said lands as over
their own property. And we further command
that, in accordance with their rank and degree,
the governor, or whoever may be invested with
our authority, shall allot the Indians to them in
any distribution made, so that they may profit
by their labor and fines in accordance with the
tributes required and the law controlling such
matters.
And in order that, in allotting said lands, there
may be no doubt as to the area of each grant,
we declare that apeonia shall consist of a tract
fifty feet in breadth by one hundred in length,
with arable land capable of producing one
hundred bushels of wheat or barley, ten
bushels of maize, as much land for an orchard
as two yokes of oxen may plough in a day, and
for the planting of other trees of a hardy nature
as much as may be plowed with eight yokes in
a day, and including pasture for twenty cows,
five mares, one hundred sheep, twenty goats,
and ten breeding pigs. A caballeria shall be a
tract one hundred feet in breadth and two
hundred in length, and in other respects shall
equal five peonias — that is, it will include
arable land capable of producing five hundred
bushels of wheat or barley and fifty bushels of
maize, as much land for an orchard as may be
ploughed with ten yokes of oxen in a day, and
for the planting of other hardy trees as much as
forty yokes may plough in a day, together with
pasturage for one hundred cows, twenty
mares, five hundred sheep, one hundred goats,
and fifty breeding pigs. And we order that the
distribution be made in such a manner that all
may receive equal benefit therefrom, and if this
be impracticable, then that each shall be given
his due.
But it was necessary, however, that action should in all
cases be taken by the public officials before any interest
was acquired by the subject.
Law 8 of said title 12 is as follows:
We command that if a petition shall be
presented asking the grant of a lot or tract of
land in a city or town in which one of our courts
may be located, the presentation shall be made
to the municipal council. If the latter shall
approve the petition, two deputy magistrates
will be appointed, who will acquaint the viceroy
or municipal president with the council's
judgment in the matter. After consideration
thereof by the viceroy or president and the
deputy magistrates, all will sign the grants, in
the presence of the clerk of the council, in
order that the matter may be duly recorded in
the council book. If the petition shall be for the
grant of waters and lands for mercantile
purpose, it shall be presented to the viceroy or
municipal president, who will transmit it to the
council. If the latters shall vote to make the
grant, one of the magistrates will carry its
decision to the viceroy or president, to the end
that, upon consideration of the matter by him,
the proper action may be taken.
It happened, in the course of time, that tracts of the
public land were found in the possession of persons who
either had no title papers therefor issued by the State,
or whose title papers were defective, either because the
proper procedure had not been followed or because
they had been issued by persons who had no authority
to do so. Law 14, title 12 book 4 of said compilation
(referred to in the regulations of June 25, 1880, for the
Philippines) was the first of a long series of legislative
acts intended to compel those in possession of the
public lands, without written evidence of title, or with
defective title papers, to present evidence as to their
possession or grants, and obtain the confirmation of
their claim to ownership. That law is as follows:
We having acquitted full sovereignty over the
Indies, and all lands territories, and possession
not heretofore ceded away by our royal
predecessors, or by, or in our name, still
pertaining to the royal crown and patrimony, it
is our will that all lands which are held without
proper and true deeds of grants be restored to
us according as they belong to us, in order that
after reserving before all what to us or to our
viceroys, audiencias, and governors may seem
necessary for public squares, ways, pastures,
and commons in those places which are
peopled, taking into consideration not only
their present condition, but also the future and
their probable increase, and after distributing
to the natives what may be necessary for tillage
and pasturage, confirming them in what they
now have and giving them more if necessary,
all the rest of said lands may remain free and
unencumbered for us to dispose of as we may
wish.
We therefore order and command that all
viceroys and presidents of pretorial courts
designated, at such time as shall to them seem
most expedient, a suitable period within which
all possessors of tracts, farms, plantations, and
estates shall exhibit to them, and to the court
officers appointed by them for this purpose,
their title deeds thereto. And those who are in
 possession by virtue of proper deeds and
receipts, or by virtue of just prescriptive right
shall be protected, and all the rest shall be
restored to us to be disposed of at our will.
While the State has always recognized the right of the
occupant to deed if he proves a possession for a
sufficient length of time, yet it has always insisted that
he must make that proof before the proper
administrative officers, and obtain from them his deed,
and until he did that the State remained the absolute
owner.
In the preamble of this law there is, as is seen, a distinct
statement that all those lands belong to the Crown
which have not been granted by Philip, or in his name,
or by the kings who proceeded him. This statement
excludes the idea that there might be lands no so
granted, that did not being to the king. It excludes the
idea that the king was not still the owner of all
ungranted lands, because some private person had been
in the adverse occupation of them. By the mandatory
part of the law all the occupants of the public lands are
required to produce before the authorities named, and
within a time to be fixed by them, their title papers. And
those who had good title or showed prescription were
to be protected in their holdings. It is apparent that it
was not the intention of the law that mere possession
for a length of time should make the possessors the
owners of the lands possessed by them without any
action on the part of the authorities. It is plain that they
were required to present their claims to the authorities
and obtain a confirmation thereof. What the period of
prescription mentioned in this law was does not appear,
but latter, in 1646, law 19 of the same title declared
"that no one shall be 'admitted to adjustment' unless he
has possessed the lands for ten years."
In law 15, title 12, book 4 of the same compilation, there
is a command that those lands as to which there has
been no adjustment with the Government be sold at
auction to the highest bidder. That law is as follows:
For the greater good of our subjects, we order
and command that our viceroys and governing
presidents shall do nothing with respect to
lands the claims to which have been adjusted
by their predecessors, tending to disturb the
peaceful possession of the owners thereof. As
to those who shall have extended their
possession beyond the limits fixed in the
original grants, they will be admitted to a
moderate adjustment with respect to the
excess, and new title deeds will be issued
therefor. And all those lands as to which no
adjustment has been made shall, without
exception, be sold at public auction to the
highest bidder, the purchase price therefor to
be payable either in cash or in the form of
quitrent, in accordance with the laws and royal
ordinances of the kingdoms of Castile. We
leave to the viceroys and president the mode
and from in which what is here ordered shall be
carried into effect in order that they may
provide for it at the least possible cost; and in
order that all unnecessary expense with
respect to the collections for said lands may be
avoided, we command that the same be made
by our royal officers in person, without the
employment of special collectors, and to that
end availing themselves of the services of our
royal courts, and, in places where courts shall
not have been established, of the town mayors.
And whereas, title deeds to lands have been
granted by officers not authorized to issue
them, and such titles have been confirmed by
us in council, we command that those holding
such a certificate of confirmation may continue
to possess the lands to which it refers, and will,
within the limits stated in the confirmation
certificate, be protected in their possession;
and with respect to any encroachment beyond
such limits will be admitted to the benefits of
this law.
Another legislative act of the same character was the
royal cedula of October 15, 1754 (4 Legislacion
Ultramarina, Rodriguez San Pedro, 673). Articles 3, 4,
and 5 of this royal cedula as follows:
3. Upon each principal subdelegate's
appointment, which will be made in the
manner prescribed in article 1 of this cedula,
and upon his receipts of these instructions, of
which every principal subdelegate already
designated or who may hereafter be appointed
shall be furnished a copy, said subdelegate will
in his turn issue a general order to the courts in
the provincial capitals and principal towns of
his district, directing the publication therein, in
the manner followed in connection with the
promulgation or general orders of viceroys,
presidents, and administrative courts in
matters connected with my service, of these
instructions, to the end that any and all persons
who, since the year 1700, and up to the date of
the promulgation and publication of said order,
shall have occupied royal lands, whether or not
the same shall be cultivated of tenanted, may,
either in person or through their attorneys or
representatives, appear and exhibit to said
subdelegates the titles and patents by virtue of
which said lands are occupied. Said
subdelegates will designate as the period
within which such documents must be
presented a term sufficient in length and
proportionate to the distance the interested
party may have to travel for the purpose of
making the presentation. Said subdelegates will
at the same time warn the parties interested
that in case of their failure to present their title
deeds within the term designated, without a
just and valid reason therefor, they will be
deprived of an evicted from their lands, and
they will be granted to others.
4. If it shall appear from the titles or
instruments presented, or if it shall be shown in
any other legal manner that said persons are in
possession of such royal lands by virtue of a
sale or adjustment consummated by duly
authorized subdelegates prior to the said year
1700, although such action may not have been
confirmed by my royal person, or by a viceroy
or president, they shall in no wise be molested,
but shall be left in the full and quiet possession
of the same; nor shall they be required to pay
any fee on account of these proceedings, in
accordance with law 15, title 12, book 4 of
 the Recopilacion de los Indias, above cited. A
note shall be made upon said title deeds to the
effect that his obligation has been complied
with, to the end that the owners of such rival
lands and their successors may hereafter be
free from denunciation, summons, or other
disturbance in their possession.
Where such possessors shall not be able to
produce title deeds it shall be sufficient if they
shall show that ancient possession, as a valid
title by prescription; provided, however, that if
the lands shall not be in state of cultivation or
tillage, the term of three months prescribed by
law 11 of the title and book cited, or such other
period as may be deemed adequate, shall be
designated as the period within which the lands
must be reduced to cultivation, with the
warning that in case of their failure so to do the
lands will be granted, with the same obligation
to cultivate them, to whomsoever may
denounce them.
5. Likewise neither shall possessors of lands
sold or adjusted by the various subdelegates
from the year 1700 to the present time be
molested, disturbed, or denounced, now or at
any other time, with respect to such
possession, if such sales or adjustments shall
have been confirmed by me, or by the viceroy
or the president of the court of the district in
which the lands are located while authorized to
exercise this power. In cases where the sales of
adjustments shall not have been so confirmed,
the possessors will present to the courts of
their respective district and to the other
officials hereby empowered to receive the
same, a petition asking for the confirmation of
said sales and adjustments. After the
proceedings outlined by the subdelegates in
their order with respect to the measurement
and valuation of the said lands, and with
reference to the title issued therefor, shall have
been duly completed, said courts and officials
will make an examination of the same for the
purpose of ascertaining whether the sale or
adjustment has been made without fraud and
collusion, and for an adequate and equitable
price, and a similar examination shall be made
by the prosecuting attorney of the district, to
the end that, in view of all the proceedings and
the purchase or adjustment price of the land,
and the media anata having been duly, etc.,
paid into the royal treasury, as well as such
additional sum as may be deemed proper,
there will be issued to the possessor, in my
royal name, a confirmation of his title, by virtue
of which his possession and ownership of lands
and waters which it represents will be fully
legalized, to the end that at no time will he or
his heirs or assigns be disturbed or molested
therein.
The wording of this law is much stronger than that of
law 14. As is seen by the terms of article 3, any person
whatever who occupied any public land was required to
present the instruments by virtue of which he was in
possession, within a time to be fixed by the authorities,
and he was warned that if he did not do so he would be
evicted from his land and it would be granted to others.
By terms of article 4 those possessors to whom grants
had been made prior to 1700, were entitled to have
such grants confirmed, and it was also provided that not
being able to prove any grants it should be sufficient to
prove "that ancient possession," as a sufficient title by
prescription, and they should be confirmed in their
holdings. "That ancient possession" would be at least
fifty-four years, for it would have to date from prior to
1700. Under article 5, where the possession dated from
1700, no confirmation could be granted on proof of
prescription alone.
The length of possession required to be proved before
the Government would issue a deed has varied in
different colonies and at different times. In the
Philippines, as has been seen, it was at one time ten
years, at another time fifty-four years at least. In Cuba,
by the royal cedula of April 24, 1833, to obtain a deed
one had to prove, as to uncultivated lands, a possession
of one hundred years, and as to cultivated lands a
possession of fifty years. In the same islands, by the
royal order of July 16, 1819, a possession of forty years
was sufficient.
In the Philippines at a later date royal of September 21,
1797 (4 Legislacion Ultramarina, Rodriguez San Pedro,
p. 688), directed the observation of the said royal cedula
of 1754, but apparently without being subject to the
period of prescription therein assigned.
The royal order of July 5, 1862 (Gaceta de Manila,
November 15, 1864), also ordered that until regulations
on the subject could be prepared the authorities of the
Islands should follow strictly the Laws of the Indies, the
Ordenanza of the Intendentes of 1786, and the said
royal cedula of 1754.
The royal order of November 14, 1876 (Guia del
Comprador de Terrenos, p. 51), directed the provincial
governors to urge those in unlawful possession of public
lands to seek an adjustment with the State in
accordance with the existing laws. The regulations as to
the adjustment (composicion) of the titles to public
lands remained in this condition until the regulations of
June 25, 1880. This is the most important of the modern
legislative acts upon the matter of "adjustment" as
distinguished from that of the sale of the public lands.
The royal degree approving these regulations is dated
1
June 25, 1880, and is as follows:
Upon the suggestion of the colonial minister,
made in conformity with the decree of the full
meeting of the council of state, I hereby
approve the attached regulations for the
adjustment of royal lands wrongfully occupied
by private individuals in the Philippine Islands.
Articles 1, 4, 5, 8, and part of article 6 are as follows:
ART. 1. For the purpose of these regulations
and in conformity with law 14, title 12, book 4
of the Recompilation of Laws of the Indies, the
following will be regarded as royal lands: All
lands whose lawful ownership is not vested in
some private, persons, or, what is the same
thing, which have never passed to private
ownership by virtue of cession by competent
 authorities, made either gratuitously or for a
consideration.
ART. 4. For all legal effects, those will be
considered proprietors of the royal lands
herein treated who may prove that they have
possessed the lands without interruption
during the period of ten years, by virtue of a
good title and in good faith.
ART. 5. In the same manner, those who without
such title deeds may prove that they have
possessed their said lands without interruption
for a period of twenty years if in a state of
cultivation, or for a period of thirty years if
uncultivated, shall be regarded as proprietors
thereof. In order that a tract of land may be
considered cultivated, it will be necessary to
show that it has been broken within the last
three years.
ART. 6. Interested parties not included within
the two preceding articles may legalize their
possession and thereby acquire the full
ownership of the said lands, by means of
adjustment proceedings, to be conducted in
the following manner: . . .
(5) Those who, entirely without title deeds,
may be in possession of lands belonging to the
State and have reduced said lands to a state of
cultivation, may acquire the ownership thereof
by paying into the public treasury the value of
the lands at the time such possessors or their
representatives began their unauthorized
enjoyment of the same.
(6) In case said lands shall never have been
ploughed, but are still in a wild state, or
covered with forest, the ownership of the same
may be acquired by paying their value at the
time of the filing of the claim, as stated in the
fourth paragraph."
ART. 8. If the interested parties shall not ask an
adjustment of the lands whose possession they
are unlawfully enjoying within the time of one
year, or, the adjustment having been granted
by the authorities, they shall fail to fulfill their
obligation in connection with the compromise,
by paying the proper sum into the treasury, the
latter will, by virtue of the authority vested in
it, reassert the ownership of the State over the
lands, and will, after fixing the value thereof,
proceed to sell at public auction that part of
the same which either because it may have
been reduced to cultivation or is not located
within the forest zone is not deemed advisable
to preserve as the State forest reservation.
The other articles of the regulations state the manner in
which applications should be made for adjustment, and
the proceedings thereon.
Do these regulations declare that those who are
included in article 4 and 5 are the absolute owners of
the land occupied by them without any action on their
part, or that of the State, or do they declare that such
persons must seek an adjustment and obtain a deed
from the State, and if they do not do so within the time
named in article 8 they lose all interest in the lands?
It must be admitted from the wording of the law that
the question is not free from doubt. Upon a
consideration, however, of the whole matter, that
doubt must, we think, be resolved in favor of the State.
The following are some of the reasons which lead us to
that conclusion:
(1) It will be noticed that article 4 does not say that
those persons shall be considered as owners who have
occupied the lands for ten years, which would have
been the language naturally used if an absolute grant
had been intended. It says, instead, that those shall be
considered owners who may prove that they have been
in possession ten years. Was this proof to be made at
any time in the future when the question might arise, or
was it to be made in the proceedings which these very
regulations provided for that purpose? We think that
the latter is the proper construction.
(2) Article 1 declares in plain terms that all those lands
as to which the State has never executed any deeds are
the property of the State — that is, that on June 25,
1880, no public lands belonged to individuals unless
they could exhibit a State deed therefor. This is entirely
inconsistent with the idea that the same law in its article
4 declares that the lands in question in this case became
the property of the plaintiffs in 1870, and were not in
1880 the property of the State, though the State had
never given any deed for them.
(3) The royal decree, by its terms, relates to
lands wrongfully withheld by private persons. The
word detentados necessarily implies this. This is
inconsistent with the idea that by article 4 of the
plaintiffs, in 1870, became the absolute owners of the
lands in question, and were not therefore, in 1880,
withholding what did not belong to them.
(4) In the preface to this decree and regulations, the
following language is used:
SIR: The uncertain, and it may be said the
precarious, state of real property in various
parts of the Philippine Islands, as yet sparsely
populated; the necessity for encouraging the
cultivation of these lands; the advantage of
increasing the wealth and products of the
Archipelago; the immense and immediate
profit which must result to all classes of
interests, public as well as private, from the
substitution of full ownership, with all the
privileges which by law accompany this real
right, for the mere possession of the lands,
have long counseled the adoption of the
provisions contained in the following
regulations, which, after consulation with the
Philippine council, and in conformity with an
order passed at a full meeting of the council of
state, the subscribing minister has the honor to
submit for the royal approval. These
regulations refer not only to tenants of royal
lands in good faith and by virtue of a valid title,
but also to those who, lacking these, may,
either by themselves reducing such lands to
cultivation or by the application of intelligence
and initiative, causing their cultivation by
 others who lack these qualities, be augmenting
2
the wealth of the Archipelago.
This preface is the most authoritative commentary on
the law, and shows without doubt that those who held
with color of title and good faith were, notwithstanding,
holding wrongfully, and that true ownership should be
substituted for their possession.
(5) This doubt suggested by the wording of the law was
the subject of inquiries directed to the officers in Manila
charged with its execution. These inquiries were
answered in the circular of August 10, 1881, published
in the Gaceta de Manila August 11, 1881, as follows:
Should possessors of royal lands under color of
title and in good faith seek adjustment?
It is evident that they must do so, for it is to
them that article 4 of the regulations refers, as
also the following article covers other cases of
possession under different circumstances. It
should be well understood by you, and you
should in turn have it understood by other, that
the adjustment of lands whose ownership has
not passed to private individuals by virtue of
cession by competent authorities, is optional
only for those within the limits of the common
district (legua comunal) as provided by article
7. In all other cases where the interested
parties shall fail to present themselves for the
adjustment of the lands occupied by them shall
suffer the penalties set forth in article 8 of said
regulations.
In determining the meaning of a law where a doubt
exists the construction placed upon it by the officers
whose duty it is to administer it is entitled to weight.
(6) There is, moreover, legislative construction of these
regulations upon this point found in subsequent laws.
The royal decree of December 26, 1884, (Berriz Anuario,
1888, p. 117), provides in articles 1 that —
All those public lands wrongfully withheld by
private person in the Philippines which, in
accordance with the regulations of June 25,
1880, are subject to adjustment with the
treasury, shall be divided into three groups, of
which the first shall include those which,
because they are included in articles 4 and 5,
and the first paragraph of article 7, are entitled
to free adjustment.
There were exceptions to this rule which are not here
important. Article 10 provides that if the adjustment is
free for those mentioned in articles 4 and 5, who are
included in the second group, the deed shall be issued
by the governor of the province. Article 11 says that if
the adjustment is not free, because the applicant has
not proved his right by prescription, then no deed can
be issued until the proper payment has been made. The
whole decree shows clearly that the legislator intended
that those mentioned in article 4 and 5 should apply for
a confirmation of their titles by prescription, as well as
those mentioned in article 6. In fact, for the adjustment
of those of the first group, which necessarily included
only those found within articles 4 and 5, a board was
organized (art. 15) in each pueblo whose sole duty it
was to dispatch applications made said two articles.
(7) The royal decree of August 31, 1888 (Berriz Anuario,
1888, p. 120), is another legislative construction of this
regulation. That decree repealed the decree of 1884,
and divided all lands subjects to adjustment under the
regulations of June 25, 1880, into two groups. In the first
group were all those lands which bordered at any points
on other State lands, and those which, though not
bordering on State lands, measured more than 30
hectares. In the second group were those which were
bounded entirely by lands of private persons and did not
exceed 30 hectares. For the second group a provincial
board was organized, and article 10 provides a hearing
before this board, and declares —
If no protest or claim shall be filed, and the
adjustment must be free because the occupant
has proved title by prescription, as provided in
articles 4 and 5 of the regulations promulgated
June 25, 1880, the proceedings shall be duty
approved, and the head officer of the province
will, in his capacity of deputy director general
of the civil administration, issue the
corresponding title deed.
The policy pursued by the Spanish Government from the
earliest times, requiring settlers on the public lands to
obtain deeds therefor from the State, has been
continued by the American Government in Act No. 926,
which takes effect when approved by Congress. Section
54, sixth paragraph of that act, declares that the persons
named in said paragraph 6 "shall be conclusively
presumed to have performed all the conditions essential
to a Government grant and to have received the same."
Yet such persons are required by section 56 to present a
petition to the Court of Land Registration for a
confirmation of these titles.
We have considered the regulations relating to
adjustment — that is, those laws under which persons in
possession might perfect their titles. But there were
other laws relating to the sale of public lands which
contained provisions fatal to the plaintiff's claims. The
royal decree of January 26, 1889 (Gaceta de Manila,
March 20, 1889), approved the regulations for the sale
of public lands in the Philippines, and it was in
accordance with such regulations that the appellee
acquired his title. Article 4 of those regulations required
the publication in the Gaceta de Manila of the
application to purchase, with a description of the lands,
and gave sixty days within which anyone could object to
the sale. A similar notice in the dialect of the locality was
required to be posted on the municipal building of the
town in which the land was situated, and to be made
public by the crier. Articles 5 and 6 declared to whom
such objections shall be made and the course which
they should take. Article 8 is as follows:
ART. 8. In no case will the judicial authorities
take cognizance of the suit against the decrees
of the civil administration concerning the sale
of royal lands unless the plaintiff shall attach to
the complaint documents which show that he
has exhausted the administrative remedy. After
the proceeding in the executive department
shall have been terminated and the matter
finally passed upon, anyone considering his
interests prejudiced thereby may commence a
 suit in the court against the State; but in no
case shall an action be brought against the
proprietor of the land.
Similar provisions are found in the regulations of 1883,
approved the second time by royal order of February 16
(Gaceta de Manila, June 28, 1883). Articles 18 and 23 of
said regulations are as follows:
ART. 18. Possessors of such lands as may fall
within the class of alienable royal lands shall be
obliged to apply for the ownership of the same,
or for the adjustment thereof within the term
of sixty days from the time of the publication in
the bulletin of Sales of the notice of sale
thereof.
ART. 23. The judicial authorities shall take
cognizance of no complaint against the decrees
of the treasury department concerning the sale
of lands pertaining to the state unless the
complainant shall attached to the complaint
documents which proved that he has
exhausted the administrative remedy.
This prohibition appears also in the royal order of
October 26, 1881 (Gaceta de Manila, December 18,
1881) which relates evidently both to sales of public
lands and also to the adjustments with the occupants.
Article 5 of this royal order is as follows:
During the pendency of proceedings in the
executive department with respect to grants of
land, interested parties may present through
executive channels such protest as they may
deemed advisable for the protection of their
right and interests. The proceeding having once
been completed, and the grant made, those
who consider their interests prejudiced thereby
may proceed in court against the State, but
under no circumstances against the grantees of
the land.
The American legislation creating the Court of Land
Registration is but an application of this same principle.
In both systems the title is guaranteed to the petitioner,
after examination by a tribunal. In Spanish system this
tribunal was called an administrative one, in the
American a judicial one.
The court finds that the plaintiffs made a written protest
against the sale to the defendants while the proceedings
for the measurements and survey of the land were
being carried on, but that they did not follow up their
protest. This, as held by the court below, is a bar their
recovery in this action, under the articles above cited.
The plaintiff state in their brief that a great fraud was
committed on them and the State by the defendant in
applying for the purchase of this lands as vacant and
belonging to the public, when they were in the actual
adverse possession of the plaintiffs.
We have seen nothing in the regulations relating to
the sale of the public lands which limited their force to
vacant lands. On the contrary there are provisions which
indicate the contrary. In the application for the purchase
the petitioner is article 3 of the regulations of 1889
required to state whether any portion of the land
sought has been broken for cultivation, and to whom
such improvements belong. Article 9 provides that if one
in possession applies to purchase the land, he
renounces his right to a composicion under the laws
relating to that subject. By article 13 the report of the
officials making the survey must contain a statement as
to whether any part of the land is cultivated or not and
if the applicant claims to be the owner of such
cultivated part.
In the regulations of January 19, 1883 (Gaceta de
Manila, June 28, 1883) is the following article:
ART. 18. Possessors of such lands as may fall
within the class of royal alienable lands shall be
obliged to apply for the ownership of the same,
or for the adjustment thereof, within the term
of sixty days from the time of the publication in
the Bulletin of Sales of the notice of sale
thereof.
In view of all these provisions it seems impossible to
believe that the legislators even intended to leave the
validity of any sale made by the State to be determined
at any time in the future by the ordinary courts on parol
testimony. Such would be the result if the contention of
the plaintiffs is to be sustained. According to their claim,
this sale and every other sale made by the State can be
set aside if at any time in the future it can be proved
that certain persons had been in possession of the land
for the term then required for prescription.
If this claim is allowed it would result that even though
written title from the State would be safe from such
attack by parol evidence, by means of such evidence
damages could have been recovered against the State
for lands sold by the State to which third persons might
thereafter prove ownership but prescription. The
unreliability of parol testimony on the subject of
possession is well known. In this case in the report
which the law required to be made before a sale could
be had it is stated by an Ayudante de Montes that the
tract had an area of 429 hectares, 77 ares, and 96
centares uncultivated, and 50 hectares, 19 ares, and 73
centares broken for cultivation. The official report also
says (1890) that the breaking is recent. Notwithstanding
this official report, the plaintiffs introduced evidence
from which the court found that the greater part of the
tract had been occupied and cultivated by the plaintiffs
since 1860.
It is hardly conceivable that the State intended to put in
force legislation under which its property rights could be
so prejudiced.
We hold that from 1860 to 1892 there was no law in
force in these Islands by which the plaintiffs could
obtain the ownership of these lands by prescription,
without any action by the State, and that the judgment
below declaring the defendant the owner of the lands
must be affirmed.
II. What has been said heretofore makes it unnecessary
to consider the motion for a new trial, made by the
defendant on the ground that the findings of fact are
not supported by the evidence.
III. The exception of the defendant to the order vacating
the appointment of the receiver can not be sustained.
The defendant at no time made any showing sufficient
to authorize the appointment of a receiver.

The case does not fall under No. 4 of section 174 of the
Code of Civil Procedure. Neither party in his pleadings
asked any relief as to the crops. They were not,
therefore, "the property which is the subject of
litigation."

Neither does the case fall under No. 2 of section 174, for
the same reason.

Moreover, under No. 2 it must be shown that the

property is in danger of being lost. There was no
showing of that kind. The pleadings say nothing upon
the subject. In the motion for the appointment of the
receiver it said that the plaintiffs are insolvent. There is
no evidence, by affidavit or otherwise, to support this
statement. A bare, unsworn statement in a motion that
the adverse party is insolvent is not sufficient to warrant
a court in appointing a receiver for property in his
possession.

The judgment of the court below is affirmed. Neither

party can recover costs in this court.

Arellano, C. J., Torres, Cooper, McDonough and Johnson,

JJ., concur.
 4. G.R. No. L-2468 July 16, 1906
MAGDALENA CANSINO, ET AL., plaintiffs-appellees,
vs.
GERVASIO VALDEZ, ET AL., defendants-appellants.
Wade H. Kitchens, for appellants.
Isabelo Artacho, for appellees.
WILLARD, J.:
The decision in this case was announced on the 30th of
April, 1906. The grounds of that decision are as follows:
The case is almost identical with the case of Valenton vs.
1
Murciano (2 Off Gaz., 434), decided on the 30th of
March, 1904. The similarity extends even to the dates
and to the location of the land, for we judge from the
description of the property involved in this suit and the
description of the property involved in the case of
Valenton vs. Murciano that they are two adjoining tracts
of land, one situated in the Province of Pangasinan and
the other in the Province of Tarlac, the boundary line
between the two tracts of land.
In the case of Valenton vs. Murciano, the defendant
bought the land from the Spanish Government by a
deed dated the 14th of July, 1892. In this case the
plaintiff, Magdalena Cansino, bought the property in
question, as public lands of the State from the Spanish
Government and received a deed therefor on the 27th
of October, 1893. In the former case the plaintiffs went
into possession of the land in 1860 and claimed
ownership thereof by the extraordinary prescription of
thirty years. In this case some of the defendants
testified that they went into possession in 1862 and
they claimed the ownership of this land by the same
extraordinary prescription. In either one of the cases did
the occupants have any written title to the land.
In Valenton vs. Murciano we decided that title to lands
such as were involved in that case could not be acquired
by prescription while they were the property of the
State. The decision in that case governs and controls this
case and upon its authority judgment in this case was
affirmed.
Arellano, C.J., Torres and Carson, JJ., concur.
 5. U.S. Supreme Court
Carino v. Insular Government, 212 U.S. 449 (1909)
Carino v. Insular Government of the Philippine Islands
No. 72
Argued January 13, 1909
Decided February 23, 1909
212 U.S. 449
ERROR TO THE SUPREME COURT
OF THE PHILIPPINE ISLANDS
Syllabus
Writ of error is the general, and appeal the exceptional,
method of bringing Cases to this Court. The latter
method is in the main confined to equity cases, and the
former is proper to bring up a judgment of the Supreme
Court of the Philippine Islands affirming a judgment of
the Court of Land Registration dismissing an application
for registration of land.
Although a province may be excepted from the
operation of Act No. 926 of 1903 of the Philippine
Commission which provides for the registration and
perfecting of new titles, one who actually owns property
in such province is entitled to registration under Act No.
496 of 1902, which applies to the whole archipelago.
While, in legal theory and as against foreign nations,
sovereignty is absolute, practically it is a question of
strength and of varying degree, and it is for a new
sovereign to decide how far it will insist upon theoretical
relations of the subject to the former sovereign and how
far it will recognize actual facts.
The acquisition of the Philippines was not for the
purpose of acquiring the lands occupied by the
inhabitants, and under the Organic Act of July 1, 1902, c.
1369, 32 Stat. 691, providing that property rights are to
be administered for the benefit of the inhabitants, one
who actually owned land for many years cannot be
deprived of it for failure to comply with certain
ceremonies prescribed either by the acts of the
Philippine Commission or by Spanish law.
The Organic Act of the Philippines made a bill of rights
embodying safeguards of the Constitution, and, like the
Constitution, extends those safeguards to all.
Every presumption of ownership is in favor of one
actually occupying land for many years, and against the
government which seeks to deprive him of it, for failure
to comply with provisions of a subsequently enacted
registration act.
Title by prescription against the crown existed under
Spanish law in force in the Philippine Islands prior to
their acquisition by the United States, and one
occupying land in the Province of Benguet for more than
fifty years before the Treaty of Paris is entitled to the
continued possession thereof.
7 Phil. 132 reversed.
The facts are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the
Court.
This was an application to the Philippine Court of Land
Registration for the registration of certain land. The
application was granted by the court on March 4, 1904.
An appeal was taken to the Court of First Instance of the
Province of Benguet on behalf of the government of the
Philippines, and also on behalf of the United States,
those governments having taken possession of the
property for public and military purposes. The Court of
First Instance found the facts and dismissed the
application upon grounds of law. This judgment was
affirmed by the supreme court, 7 Phil. 132, and the case
then was brought here by writ of error.
The material facts found are very few. The applicant and
plaintiff in error is an Igorot of the Province of Benguet,
where the land lies. For more than fifty years before the
Treaty of Paris, April 11, 1899, as far back as the findings
go, the plaintiff and his ancestors had held the land as
owners. His grandfather had lived upon it, and had
maintained fences sufficient for the holding of cattle,
according to the custom of the country, some of the
fences, it seems, having been of much earlier date. His
father had cultivated parts and had used parts for
pasturing cattle, and he had used it for pasture in his
turn. They all had been recognized as owners by the
Igorots, and he had inherited or received the land from
his father in accordance with Igorot custom. No
document of title, however, had issued from the
Spanish Crown, and although, in 1893-1894 and again in
1896-1897, he made application for one under the royal
decrees then in force, nothing seems to have come of it,
unless, perhaps, information that lands in Benguet could
not be conceded until those to be occupied for a
sanatorium, etc., had been designated -- a purpose that
has been carried out by the Philippine government and
the United States. In 1901, the plaintiff filed a petition,
alleging ownership, under the mortgage law, and the
lands were registered to him, that process, however,
establishing only a possessory title, it is said.
Before we deal with the merits, we must dispose of a
technical point. The government has spent some energy
in maintaining that this case should have been brought
up by appeal, and not by writ of error. We are of
opinion, however, that the mode adopted was right. The
proceeding for registration is likened to bills in equity to
quiet title, but it is different in principle. It is a
proceeding in rem under a statute of the type of the
Torrens Act, such as was discussed in Tyler v. Court of
Registration, 175 Mass. 71. It is nearer to law than to
equity, and is an assertion of legal title; but we think it
unnecessary to put it into either pigeon hole. A writ of
error is the general method of bringing cases to this
Court, an appeal the exception, confined to equity in the
main. There is no reason for not applying the general
rule to this case. Ormsby v. Webb, 134 U. S. 47, 134 U. S.
65; Campbell v. Porter, 162 U. S. 478; Metropolitan R.
Co. v. District of Columbia, 195 U. S. 322.
Another preliminary matter may as well be disposed of
here. It is suggested that, even if the applicant have
title, he cannot have it registered, because the
Philippine Commission's Act No. 926, of 1903, excepts
the Province of Benguet among others from its
operation. But that act deals with the acquisition of new
titles by homestead entries, purchase, etc., and the
perfecting of titles begun under the Spanish law. The
applicant's claim is that he now owns the land, and is
entitled to registration under the Philippine
Commission's Act No. 496, of 1902, which established a
court for that purpose with jurisdiction "throughout the
Philippine Archipelago," § 2, and authorized in general
terms applications to be made by persons claiming to
own the legal estate in fee simple, as the applicant does.
He is entitled to registration if his claim of ownership
can be maintained.
We come, then, to the question on which the case was
decided below -- namely, whether the plaintiff owns the
land. The position of the government, shortly stated, is
that Spain assumed, asserted, and had title to all the
land in the Philippines except so far as it saw fit to
permit private titles to be acquired; that there was no
prescription against the Crown, and that, if there was, a
decree of June 25, 1880, required registration within a
limited time to make the title good; that the plaintiff's
land was not registered, and therefore became, if it was
not always, public land; that the United States
succeeded to the title of Spain, and so that the plaintiff
has no rights that the Philippine government is bound to
respect.
If we suppose for the moment that the government's
contention is so far correct that the Crown of Spain in
form asserted a title to this land at the date of the
Treaty of Paris, to which the United States succeeded, it
is not to be assumed without argument that the
plaintiff's case is at an end. It is true that Spain, in its
earlier decrees, embodied the universal feudal theory
that all lands were held from the Crown, and perhaps
the general attitude of conquering nations toward
people not recognized as entitled to the treatment
accorded to those in the same zone of civilization with
themselves. It is true also that, in legal theory,
sovereignty is absolute, and that, as against foreign
nations, the United States may assert, as Spain asserted,
absolute power. But it does not follow that, as against
the inhabitants of the Philippines, the United States
asserts that Spain had such power. When theory is left
on one side, sovereignty is a question of strength, and
may vary in degree. How far a new sovereign shall insist
upon the theoretical relation of the subjects to the head
in the past, and how far it shall recognize actual facts,
are matters for it to decide.
The Province of Benguet was inhabited by a tribe that
the Solicitor General, in his argument, characterized as a
savage tribe that never was brought under the civil or
military government of the Spanish Crown. It seems
probable, if not certain, that the Spanish officials would
not have granted to anyone in that province the
registration to which formerly the plaintiff was entitled
by the Spanish laws, and which would have made his
title beyond question good. Whatever may have been
the technical position of Spain, it does not follow that, in
the view of the United States, he had lost all rights and
was a mere trespasser when the present government
seized his land. The argument to that effect seems to
amount to a denial of native titles throughout an
important part of the island of Luzon, at least, for the
want of ceremonies which the Spaniards would not have
permitted and had not the power to enforce.
The acquisition of the Philippines was not like the
settlement of the white race in the United States.
Whatever consideration may have been shown to the
North American Indians, the dominant purpose of the
whites in America was to occupy the land. It is obvious
that, however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would
deny that, so far as consistent with paramount
necessities, our first object in the internal administration
of the islands is to do justice to the natives, not to
exploit their country for private gain. By the Organic Act
of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the
property and rights acquired there by the United States
are to be administered "for the benefit of the
inhabitants thereof." It is reasonable to suppose that
the attitude thus assumed by the United States with
regard to what was unquestionably its own is also its
attitude in deciding what it will claim for its own. The
same statute made a bill of rights, embodying the
safeguards of the Constitution, and, like the
Constitution, extends those safeguards to all. It provides
that
"no law shall be enacted in said islands which shall
deprive any person of life, liberty, or property without
due process of law, or deny to any person therein the
equal protection of the laws."
§ 5. In the light of the declaration that we have quoted
from § 12, it is hard to believe that the United States
was ready to declare in the next breath that "any
person" did not embrace the inhabitants of Benguet, or
that it meant by "property" only that which had become
such by ceremonies of which presumably a large part of
the inhabitants never had heard, and that it proposed to
treat as public land what they, by native custom and by
long association -- one of the profoundest factors in
human thought -- regarded as their own.
It is true that, by § 14, the government of the Philippines
is empowered to enact rules and prescribe terms for
perfecting titles to public lands where some, but not all,
Spanish conditions had been fulfilled, and to issue
patents to natives for not more than sixteen hectares of
public lands actually occupied by the native or his
ancestors before August 13, 1898. But this section
perhaps might be satisfied if confined to cases where
the occupation was of land admitted to be public land,
and had not continued for such a length of time and
under such circumstances as to give rise to the
understanding that the occupants were owners at that
date. We hesitate to suppose that it was intended to
declare every native who had not a paper title a
trespasser, and to set the claims of all the wilder tribes
afloat. It is true again that there is excepted from the
provision that we have quoted as to the administration
of the property and rights acquired by the United States
such land and property as shall be designated by the
President for military or other reservations, as this land
since has been. But there still remains the question
what property and rights the United States asserted
itself to have acquired.
Whatever the law upon these points may be, and we
mean to go no further than the necessities of decision
demand, every presumption is and ought to be against
the government in a case like the present. It might,
perhaps, be proper and sufficient to say that when, as
far back as testimony or memory goes, the land has
been held by individuals under a claim of private
ownership, it will be presumed to have been held in the
same way from before the Spanish conquest, and never
to have been public land. Certainly, in a case like this, if
there is doubt or ambiguity in the Spanish law, we ought
to give the applicant the benefit of the doubt. Whether
justice to the natives and the import of the organic act
ought not to carry us beyond a subtle examination of
ancient texts, or perhaps even beyond the attitude of
Spanish law, humane though it was, it is unnecessary to
decide. If, in a tacit way, it was assumed that the wild
tribes of the Philippines were to be dealt with as the
power and inclination of the conqueror might dictate,
Congress has not yet sanctioned the same course as the
proper one "for the benefit of the inhabitants thereof."
If the applicant's case is to be tried by the law of Spain,
we do not discover such clear proof that it was bad by
that law as to satisfy us that he does not own the land.
To begin with, the older decrees and laws cited by the
counsel for the plaintiff in error seem to indicate pretty
clearly that the natives were recognized as owning some
lands, irrespective of any royal grant. In other words,
Spain did not assume to convert all the native
inhabitants of the Philippines into trespassers, or even
into tenants at will. For instance, Book 4, Title 12, Law
14 of the Recopilacion de Leyes de las Indias, cited for a
contrary conclusion in Valenton v. Murciano, 3 Phil. 537,
while it commands viceroys and others, when it seems
proper, to call for the exhibition of grants, directs them
to confirm those who hold by good grants or justa
prescripcion. It is true that it begins by the characteristic
assertion of feudal overlordship and the origin of all
titles in the King or his predecessors. That was theory
and discourse. The fact was that titles were admitted to recommended an application under the foregoing
exist that owed nothing to the powers of Spain beyond decree, but certainly it was not calculated to convey to
this recognition in their books. the mind of an Igorot chief the notion that ancient
Prescription is mentioned again in the royal cedula of family possessions were in danger, if he had read every
October 15, 1754, cited in 3 Phil. 546: word of it. The words "may prove" (acrediten), as well,
"Where such possessors shall not be able to produce or better, in view of the other provisions, might be
title deeds, it shall be sufficient if they shall show that taken to mean when called upon to do so in any
ancient possession, as a valid title by prescription." litigation. There are indications that registration was
It may be that this means possession from before 1700; expected from all, but none sufficient to show that, for
but, at all events, the principle is admitted. As want of it, ownership actually gained would be lost.
prescription, even against Crown lands, was recognized The effect of the proof, wherever made, was not to
by the laws of Spain, we see no sufficient reason for confer title, but simply to establish it, as already
hesitating to admit that it was recognized in the conferred by the decree, if not by earlier law. The royal
Philippines in regard to lands over which Spain had only decree of February 13, 1894, declaring forfeited titles
a paper sovereignty. that were capable of adjustment under the decree of
The question comes, however, on the decree of June 25, 1880, for which adjustment had not been sought,
1880, for the adjustment of royal lands wrongfully should not be construed as a confiscation, but as the
occupied by private individuals in the Philippine Islands. withdrawal of a privilege. As a matter of fact, the
This begins with the usual theoretic assertion that, for applicant never was disturbed. This same decree is
private ownership, there must have been a grant by quoted by the Court of Land Registration for another
competent authority; but instantly descends to fact by recognition of the common law prescription of thirty
providing that, for all legal effects, those who have been years as still running against alienable Crown land.
in possession for certain times shall be deemed owners. It will be perceived that the rights of the applicant under
For cultivated land, twenty years, uninterrupted, is the Spanish law present a problem not without
enough. For uncultivated, thirty. Art. 5. So that, when difficulties for courts of a different legal tradition. We
this decree went into effect, the applicant's father was have deemed it proper on that account to notice the
owner of the land by the very terms of the decree. But, possible effect of the change of sovereignty and the act
it is said, the object of this law was to require the of Congress establishing the fundamental principles now
adjustment or registration proceedings that it described, to be observed. Upon a consideration of the whole case,
and in that way to require everyone to get a document we are of opinion that law and justice require that the
of title or lose his land. That purpose may have been applicant should be granted what he seeks, and should
entertained, but it does not appear clearly to have been not be deprived of what, by the practice and belief of
applicable to all. The regulations purport to have been those among whom he lived, was his property, through
made "for the adjustment of royal lands wrongfully a refined interpretation of an almost forgotten law of
occupied by private individuals." (We follow the Spain.
translation in the government's brief.) It does not Judgment reversed.
appear that this land ever was royal land or wrongfully
occupied. In Article 6, it is provided that
"interested parties not included within the two
preceding articles [the articles recognizing prescription
of twenty and thirty years] may legalize their
possession, and thereby acquire the full ownership of
the said lands, by means of adjustment proceedings, to
be conducted in the following manner."
This seems, by its very terms, not to apply to those
declared already to be owners by lapse of time. Article 8
provides for the case of parties not asking an
adjustment of the lands of which they are unlawfully
enjoying the possession, within one year, and threatens
that the treasury "will reassert the ownership of the
state over the lands," and will sell at auction such part
as it does not reserve. The applicant's possession was
not unlawful, and no attempt at any such proceedings
against him or his father ever was made. Finally, it
should be noted that the natural construction of the
decree is confirmed by the report of the council of state.
That report puts forward as a reason for the regulations
that, in view of the condition of almost all property in
the Philippines, it is important to fix its status by general
rules on the principle that the lapse of a fixed period
legalizes completely all possession, recommends in two
articles twenty and thirty years, as adopted in the
decree, and then suggests that interested parties not
included in those articles may legalize their possession
and acquire ownership by adjustment at a certain price.
It is true that the language of Articles 4 and 5 attributes
title to those "who may prove" possession for the
necessary time, and we do not overlook the argument
that this means may prove in registration proceedings. It
may be that an English conveyancer would have
6. [G.R. No. 2506. April 16, 1906.
F. STEWART JONES, Plaintiff-Appellee, v. THE
INSULAR GOVERNMENT, Defendant-Appellant.
SYLLABUS
1. ACTS OF THE COMMISSION; RESERVATION OF LANDS
FOR PUBLIC USE. — Where lands have been reserved by
act of the Commission, a notice by the Governor-
General to the Court of Land Registration is sufficient to
five that court jurisdiction of the cases mentioned in Act
No. 648.
2. ID.; PRESCRIPTION AGAINST THE GOVERNMENT. —
The prescription of ten years mentioned in Act No. 648
runs against the Government.
3. ID.; ADVERSE POSSESSION FOR TEN YEARS. — Held,
That the evidence in the case proved an adverse
possession of the land in question for ten years.
4. ID.; NULLITY; ACTS OF CONGRESS. — Act No. 648 is
not void because not previously submitted to the
President and Congress. It is not included in the
provisions of section 13 of the act of Congress of July 1,
1902.
5. ID.; PHILIPPINE COMMISSION; GRANTING OF LAND.
— The provisions of section 14 authorizing the
Commission to issue a patent for 16 hectares of land to
a native of the Islands who was in possession thereof on
August 13, 1898, did not prohibit the Commission from
extending the provisions of Act No. 648 to foreigners.
DECISION
WILLARD, J. :
On the 16th day of January, 1904 F. Stewart Jones
presented a petition to the Court of Land Registration
asking that he be inscribed as the owner of a certain
tract of land situated in the Province of Benguet, and
within the reservation defined in Act No. 636. The
Solicitor-General appeared in the court below and
opposed the inscription upon the ground that the
property was public land. At the trial he objected to any
consideration of the case on the ground that the court
had no jurisdiction to register land situated in that
reservation. The objections were overruled and
judgment entered in favor of the petitioner, from which
judgment the Government appealed to this court.
The act creating the Court of Land Registration (No. 496)
gave it jurisdiction throughout the Archipelago. By Act
No. 1224, which was approved August 31, 1904, and
which applied to pending cases, the court was deprived
of jurisdiction over lands situated in the Province of
Benguet. That act, however, contained a proviso by
which the court was given jurisdiction over applications
for registration of title to land in all cases coming within
the provisions of Act No. 648. Act No. 648 provides in its
first section that —
"The Civil Governor is hereby authorized and
empowered by executive order to reserve from
settlement or public sale and for specific public uses any
of the public domain in the Philippine Islands the use of
which is not otherwise directed by law."cralaw
virtua1aw library
Section 2 provides: "Whenever the Civil Governor, in
] writing, shall certify that all public lands within limits by
him described in the Philippine Islands are reserved for
civil public uses, either of the Insular Government, or of
any provincial or municipal government, and shall give
notice thereof to the judge of the Court of Land
Registration, it shall be the duty of the judge of said
court" to proceed in accordance with the provisions of
Act No. 627. Act No. 627, which relates to military
reservations, provides that when notice is given to the
Court of Land Registration of the fact that any land has
been so reserved, it shall be the duty of the court to
issue notice that claims for all private lands within the
limits of the reservation must be presented for
registration under the Land Registration Act within six
months from the date of issuing such notice, and that all
lands not so presented within said time would be
conclusively adjudged to be public lands, and all claims
on the part of private individuals for such lands, not so
presented, would be forever barred.
On the 26th day of August, 1903, the following letter
was directed by Governor Taft to the judge of the Court
of Land Registration:jgc:chanrobles.com.ph
"SIR: You are hereby notified, in accordance with the
provisions of Act No. 648, entitled "An act authorizing
the Civil Governor to reserve for civil public purposes,
and from sale or settlement, any part of the public
domain not appropriated by law for special public
purposes, until otherwise directed by law, and
extending the provisions of Act Numbered Six hundred
and twenty-seven so that public lands desired to be
reserved by the Insular Government for public uses, or
private lands desired to be purchased by the Insular
Government for such uses, may be brought under the
operation of the Land Registration Act;" that the
Philippine Commission has reserved for civil public uses
of the Government of the Philippine Islands the lands
described in Act No. 636, entitled "An act creating a
Government reservation at Baguio, in the Province of
Benguet," enacted February 11, 1903.
"It is therefore requested that the land mentioned be
forthwith brought under the operation of the Land
Registration Act and become registered land in the
meaning thereof, and that you proceed in accordance
with the provisions of Act No. 648.
"Very respectfully,
(Signed) "WM. H. TAFT,
"Civil Governor."cralaw virtua1aw library
The court of Land Registration, acting upon this notice
from the Governor, issued the notice required by Act
No. 627, and in pursuance of that notice Jones, the
appellee, within the six months referred to in the notice,
presented his petition asking that the land be registered
in his name.
The first claim of the Government is that the provisions
of Act No. 648 were not complied with in the respect
that this letter of the Governor did not amount to a
certificate that the lands had been reserved. The
Solicitor-General says in his brief:jgc:chanrobles.com.ph
"To bring these lands within the operation of section 2
of Act No. 648 it was necessary for the Civil Governor
first to certify that these lands were reserved for public
uses, and second to give notice thereof to the Court of
Land Registration."cralaw virtua1aw library
We do not think that this contention can be sustained.
Act No. 648 conferred power upon the Governor to
reserve lands for public purposes, but it did not make
that power exclusive. The Commission did not thereby
deprive itself of the power to itself make reservations in
the future, if it saw fit; neither did it intend to annul any
reservations which it had formerly made. The
contention of the Government is true when applied to a
case where the land has not been reserved by the
Commission. In such a case it would be the duty of the
Governor to first reserve it by an executive order, and
then to give notice to the Court of Land Registration, but
where the land had already been reserved by
competent authority, it not only was not necessary for
the Governor to issue any executive order reserving the
land but he had no power to do so. In such cases the
only duty imposed upon him was to give notice to the
Court of Land Registration that the land had been
reserved. This notice was given in the letter above
quoted. The court had jurisdiction to try the case.
The petitioner Jones, on the 1st day of May, 1901,
bought the land in question from Sioco Cariño, an
Igorot. He caused his deed to the land to be recorded in
the office of the registrar of property on the 8th day of
May of the same year. Prior thereto, and while Sioco
Cariño was in possession of the land, he commenced
proceedings in court for the purpose of obtaining a
possessory information in accordance with the
provisions of the Mortgage Law. This possessory
information he caused to be recorded in the office of
the registrar of property on the 12th day of March,
1901.
The evidence shows that Sioco Cariño was born upon
the premises in question; that his grandfather, Ortega,
during the life of the latter, made a gift of the property
to Sioco. This gift was made more than twelve years
before the filing of the petition in this case — that is,
before the 16th day of January, 1904. Sioco’s
grandfather, Ortega, was in possession of the land at the
time the gift was made, and has been in possession
thereof for many years prior to said time. Upon the gift
being made Sioco took possession of the property, and
continued in such possession until his sale to Jones, the
petitioner. Since such sale Jones has been in possession
of the land, and is now in such possession. For more
than twelve years prior to the presentation of the
petition the land had been cultivated by the owners
thereof, and the evidence is sufficient, in our opinion, to
bring the case within section 41 of the Code of Civil
Procedure, and to show such an adverse possession
thereof for ten years as is required by the section. The
evidence of Sioco Cariño shows that what he did in the
way of presenting a petition to the Spanish Government
in regard to a deed of the land was done by order of the
then comandante, and was limited to securing a
measurement thereof, as he then believed. These acts
did not interrupt the running of the statute of
limitations.
Acts Nos. 627 and 648 provide that the provisions of
section 41 of the Code of Civil Procedure shall be
applicable to all proceedings taken under either one of
these acts. These acts in effect provide that in
determining whether the applicant is the owner of the
land or not, the general statute of limitations shall be
considered, and shall be applied against the
Government. The evidence showing, as we have said,
such an adverse possession, the petitioner proved his
ownership of the land if the Commission had authority
to make the statute of limitations applicable to these
proceedings.
The claim of the Government is that this provision is
void; that the act thereby disposes of public lands; that
Congress is the only authority that can take such action,
and that it has never authorized or approved the action
of the Commission in applying the statute of limitations
to proceedings under Acts Nos. 648 and 627. We do not
think that this contention can be sustained. Section 12
of the act of Congress of July 1, 1902, provides as
follows:jgc:chanrobles.com.ph
"SEC. 12. That all the property and rights which may
have been acquired in the Philippine Islands by the
United States under the treaty of peace with Spain,
signed December tenth, eighteen hundred and ninety-
eight, except such land or other property as shall be
designated by the President of the United States for
military and other reservations of the Government of
the United States, are hereby placed under the control
of the Government of said Islands, to be administered
for the benefit of the inhabitants thereof, except as
provided in this act."cralaw virtua1aw library
This gives the Government of the Philippine Islands
power to dispose of these lands, and of all public lands,
and to pass the law in question, unless there is some
provision in other parts of the act of July 1, 1902, which
takes away or limits that power. The government says
that such limitation is found in section 13 of the act.
That section and sections 14 and 15 are as
follows:jgc:chanrobles.com.ph
"SEC. 13. That the Government of the Philippine Islands,
subject to the provisions of this Act and except as herein
provided, shall classify according to its agricultural
character and productiveness, and shall immediately
make rules and regulations for the lease, sale, or other
disposition of the public lands other than timber or
mineral lands, but such rules and regulations shall not
go into effect or have the force of law until they have
received the approval of the President, and when
approved by the President they shall be submitted by
him to Congress at the beginning of the next ensuing
session thereof and unless disapproved or amended by
Congress at said session they shall at the close of such
period have the force and effect of law in the Philippine
Islands: Provided, That a single homestead entry shall
not exceed sixteen hectares in extent.
"SEC. 14. That the Government of the Philippine Islands
is hereby authorized and empowered to enact rules and
regulations and to prescribe terms and conditions to
enable persons to perfect their title to public lands in
said Islands, who, prior to the transfer of sovereignty
from Spain to the United States, had fulfilled all or some
of the conditions required by the Spanish laws and royal
decrees of the Kingdom of Spain for the acquisition of
legal title thereto, yet failed to secure conveyance of
title; and the Philippine Commission is authorized to
issue patents, without compensation, to any native of
said Islands, conveying title to any tract of land not
more than sixteen hectares in extent, which were public
lands and had been actually occupied by such native or
his ancestors prior to and on the thirteenth of August,
eighteen hundred and ninety-eight.
"SEC. 15. That the Government of the Philippine Islands
is hereby authorized and empowered, on such terms as
it may prescribe, by general legislation, to provide for
the granting or sale and conveyance to actual occupants
and settlers and other citizens of said Islands such parts
and portions of the public domain, other than timber
and mineral lands, of the United States in said Islands as
it may deem wise, not exceeding sixteen hectares to any
one person, and for the sale and conveyance of not
more than one thousand and twenty-four hectares to
any corporation or association of persons: Provided,
That the grant or sale of such lands, whether the
purchase price be paid at once or in partial payments,
shall be conditioned upon actual and continued
occupancy, improvement, and cultivation of the
premises sold for a period of not less than five years,
during which time the purchaser or grantee can not
alienate or encumber said land or the title thereto; but
such restriction shall not apply to transfers of rights and
title of inheritance under the laws for the distribution of
the estates of decedents."cralaw virtua1aw library
It is first to be noted that section 13 does not apply to all
lands. Timber and mineral lands are expressly excluded.
If the Commission should pass laws relating to mineral
lands without submitting them to Congress, as it has
done (Act No. 624), their validity would not be
determined by inquiring if they had been submitted to
Congress under section 13, but rather by inquiring if
they were inconsistent with other provisions of the act
relating to mineral lands. In other words, the fact that
such laws were not submitted to Congress would not
necessarily make them void.
The same is true of legislation relating to coal lands, as
to which sections 53 and 57 contain provisions. By
section 57 this Government is authorized to issue all
needful rules and regulations for carrying into effect this
and preceding sections relating to mineral lands. Such
regulations need not be submitted to Congress for its
approval. Act No. 1128, relating to coal lands, was not
submitted.
The act of Congress also contains provisions regarding
the purchase of lands belonging to religious orders.
Section 65 provides as to those lands as
follows:jgc:chanrobles.com.ph
"SEC. 65. That all lands acquired by virtue of the
preceding section shall constitute a part and portion of
the public property of the Government of the Philippine
Islands, and may be held, sold, and conveyed, or leased
temporarily for a period not exceeding three years after
their acquisition by said Government, on such terms and
conditions as it may prescribe, subject to the limitations
and conditions provided for in this Act. . . . Actual
settlers and occupants at the time said lands are
acquired by the Government shall have the preference
over all others to lease, purchase, or acquire their
holdings within such reasonable time as may be
determined by said Government."cralaw virtua1aw
library
Does the clause "subject to the limitations and
conditions of this act" require a submission to Congress
of legislation concerning such land? If it does, then Act
No. 1120, which contains such provisions, is void,
because it was never so submitted.
Section 18 of the act of Congress provides as
follows:jgc:chanrobles.com.ph
"That the forest laws and regulations now in force in the
Philippine Islands, with such modifications and
amendments as may be made by the Government of
said Islands, are hereby continued in force."cralaw
virtua1aw library
Must these modifications and amendments be
submitted to Congress for its approval? If they must be,
then Act No. 1148, relating thereto, is void, because it
was not so submitted.
It seems very clear that rules and regulations concerning
mineral, timber, and coal lands, and lands bought from
religious orders need not be submitted to Congress. If
they are not inconsistent with the provisions of the act
of Congress relating to the same subjects, they are
valid.
Congress, by section 12 of the act, gave to the Philippine
Government general power all property acquired from
Spain. When it required the Commission to immediately
classify the agricultural lands and to make rules and
regulations for their sale, we do not think that it
intended to virtually repeal section 12. Such, however,
would be the effect of the rule contended for by the
Government. If, notwithstanding the provisions of
section 12, any law which in any way directly or
indirectly affects injuriously the title of the Government
to public lands must be submitted to the President and
Congress for approval, the general power given by
section 12 is taken away. An examination of some of the
laws of the Commission will show that a holding such as
is contended for by the Government in this case would
apparently require a holding that such other laws were
also void. Act No. 496, which established the Court of
Land Registration, the court that tried this case,
provides in section 38 that the decrees of the court shall
be conclusive on and against all persons, including the
Insular Government, and all the branches thereof.
Neither the President nor Congress ever gave their
consent to this law. They never consented that the title
of the Government to public lands should be submitted
to the judgment of the courts of the Islands. That this
law provides a means by which the Government may be
deprived of its property in such lands is apparent. In this
very case, if the Government had not appealed from the
judgment, or if it should withdraw its appeal, the lands
would be lost to it — lands which the Attorney-General
claims are public lands. The land could not be more
effectually lost by the law shortening the statute of
limitations than by this law making the decrees of the
Court of Land Registration binding on the Government.
In fact, the former law could not in any way prejudice
the Government if it were not for the latter law making
the judgments of this court binding upon it. Both of
these laws in an indirect way affect the title to public
lands, but we do not think that for that reason they are
included in the terms "rules and regulations" used in
section 13 of the act of Congress.
Act No. 1039 granted to the Province of Cavite and to
the pueblo of Cavite certain public lands. This act never
was submitted either to the President or Congress. Acts
Nos. 660 and 732 authorized the leasing of parts of the
San Lazaro estate. The Government leased the
sanitarium at Benguet, and provided for its sale. None of
these acts were ever submitted to the President or
Congress, which authorized such disposition. The
Government owns many isolated tracts of land, such as
the Oriente Hotel, for example. It has reclaimed from
the sea a large tract of land in connection with the
works of the port of Manila. If the Government should
desire to sell this reclaimed land or to lease a part of it
for the site of an hotel, or should desire to sell the
Oriente Hotel building, we do not think legislation to
accomplish such purposes would require the previous
approval of the President and of Congress. The general
purpose of section 13 was to require the Government to
classify agricultural lands and to pass a homestead law
— that is, a law which would state the rules and
regulations by virtue of which title to the public lands of
which it can be decided in every case whether an act of
the Commission constitutes a rule or regulation within
the meaning of section 13. It is sufficient to say that the
law in question (Act No. 648), making a statute of
limitations run against the Government when the title to
few scattered tracts of land throughout the Archipelago
is under consideration, is not such a rule or regulations
as required previous submission to the President and
Congress. It will be observed that be section 86 of the
act of Congress of July 1, 1902, Congress reserves the
right to annul all legislation of the Commission.
There is nothing in section 14 which requires the rules
and regulations therein mentioned to be submitted to
Congress. But it is said that although as to Act No. 648
submission to Congress was not required, it is
nevertheless void when applied to one not a native of
the Islands, because forbidden by this section; and that
this section limits the power of the Commission to
declare possession alone sufficient evidence of title to
cases in which the claimant is native and in which the
amount of land does not exceed 16 hectares.
Section 14 is not limited to agricultural lands, as are
sections 13 and 15. It includes mineral and timber lands.
So far as it relates to proceedings theretofore taken
under Spanish laws its benefits are not limited to natives
of the Islands nor to tracts not more than 16 hectares in
extent. Where the only claim is possession, no
possession for any definite time prior to August 13,
1898, is required, nor is proof of any possession
whatever after that date demanded. According to the
strict letter of the section a native would be entitled to a
patent who proved that he had been in possession for
the months of July and August only of 1898. It is not
stated whether or not one who receives such a patent
must occupy the land for five years thereafter, as
required by section 15. Neither is it stated whether or
not a person who was in possession for the month of
August, 1898, would be entitled to a patent in
preference to the actual settler spoken of in section 6.
When legislating upon the subject—matter of section
14, the Commission, in Act No. 926, did not make such a
limitation as has been suggested. Section 54, paragraph
6, of that act is as follows:jgc:chanrobles.com.ph
"All persons who by themselves or their predecessors in
interest have been in the open, continuous, exclusive,
and notorious possession and occupation of agricultural
public land, as defined by said act of Congress of July
first, nineteen hundred and two, under a bona fide claim
of ownership except as against the Government, for a
period of ten years next preceding the taking effect of
this act, except when prevented by war or force
majeure, shall be conclusively presumed to have
performed all the conditions essential to a Government
grant and to have received the same, and shall be
entitled to a certificate of title to such land under the
provision of this chapter."cralaw virtua1aw library
It is seen that this section does not exclude foreigners,
nor is it limited to tracts not exceeding 16 hectares in
extent. To adopt the view that the power of the
Commission is so limited would require a holding that
this section is void as to foreigners and as to all tracts of
land over 16 hectares in extent.
This paragraph of section 54 of Act No. 926 is in
substance a continuation of Act No. 648 and an
extension of its provisions to all the lands of the Islands.
To adopt the construction contended for would lead to
an unjust result. By the terms of the first part of section
14 the Commission has the power to perfect the title to
100 hectares of land as to which a Spaniards may have
done nothing more than to file an application relating
thereto, and of which he never was in possession, while
by the last party of the section the Commission would
be entirely without power to make any rules by which a
native who by himself and his ancestors had been in
possession of 100 hectares. Such a discrimination in
favor of foreigners and against the natives could not
have been intended. It could not have been the purpose
of Congress to give the Commission ample power to
legislate for the benefit of foreigners and to limit its
power to legislate for the benefit of natives.
The meaning of these sections is not clear, and it is
difficult to give to them a construction that will be
entirely free from objection. But we do not think that
authority given by the Commission to issue to a native a
patent for 16 hectares of land of which he was in
possession during the month of August, 1898, was
intended to limit the general power of control which by
section 12 is given to the Commission.
The judgment of the court below is affirmed, with the
costs of this instance the Appellant. After the expiration
of twenty days let final judgment be entered in
accordance herewith and ten days thereafter let the
cause be remanded to the lower court for proper
procedure. So ordered.
Arellano, C.J., Torres, Mapa, Johnson, and Tracey, JJ.,
concur.
 7. G.R. No. L-24066 December 9, 1925
VALENTIN SUSI, plaintiff-appellee,
vs.
ANGELA RAZON and THE DIRECTOR OF LANDS,
defendants. THE DIRECTOR OF LANDS, appellant.
Acting Attorney-General Reyes for appellant.
Monico R. Mercado for appellee.
VILLA-REAL, J.:
This action was commenced in the Court of First
Instance of Pampanga by a complaint filed by Valentin
Susi against Angela Razon and the Director of Lands,
praying for judgment: (a) Declaring plaintiff the sole and
absolute owner of the parcel of land described in the
second paragraph of the complaint; (b) annulling the
sale made by the Director of Lands in favor of Angela
Razon, on the ground that the land is a private property;
(c) ordering the cancellation of the certificate of title
issued to said Angela Razon; and (d) sentencing the
latter to pay plaintiff the sum of P500 as damages, with
the costs.
For his answer to the complaint, the Director of Lands
denied each and every allegation contained therein and,
as special defense, alleged that the land in question was
a property of the Government of the United States
under the administration and control of the Philippine
Islands before its sale to Angela Razon, which was made
in accordance with law.
After trial, whereat evidence was introduced by both
parties, the Court of First Instance of Pampanga
rendered judgment declaring the plaintiff entitled to the
possession of the land, annulling the sale made by the
Director of Lands in favor of Angela Razon, and ordering
the cancellation of the certificate of title issued to her,
with the costs against Angela Razon. From this judgment
the Director of Lands took this appeal, assigning thereto
the following errors, to wit: (1) The holding that the
judgment rendered in a prior case between the plaintiff
and defendant Angela Razon on the parcel of land in
question is controlling in this action; (2) the holding that
plaintiff is entitled to recover the possession of said
parcel of land; the annulment of the sale made by the
Director of Lands to Angela Razon; and the ordering that
the certificate of title issued by the register of deeds of
the Province of Pampanga to Angela Razon by virtue of
said sale be cancelled; and (3) the denial of the motion
for new trial filed by the Director of Lands.
The evidence shows that on December 18, 1880,
Nemesio Pinlac sold the land in question, then a fish
pond, tho Apolonio Garcia and Basilio Mendoza for the
sum of P12, reserving the right to repurchase the same
(Exhibit B). After having been in possession thereof for
about eight years, and the fish pond having been
destroyed, Apolonio Garcia and Basilio Mendoza, on
September 5, 1899, sold it to Valentin Susi for the sum
of P12, reserving the right to repurchase it (Exhibit A).
Before the execution of the deed of sale, Valentin Susi
had already paid its price and sown "bacawan" on said
land, availing himself of the firewood gathered thereon,
with the proceeds of the sale of which he had paid the
price of the property. The possession and occupation of
the land in question, first, by Apolonio Garcia and Basilio
Mendoza, and then by Valentin Susi has been open,
continuous, adverse and public, without any
interruption, except during the revolution, or
disturbance, except when Angela Razon, on September
13, 1913, commenced an action in the Court of First
Instance of Pampanga to recover the possession of said
land (Exhibit C), wherein after considering the evidence
introduced at the trial, the court rendered judgment in
favor of Valentin Susi and against Angela Razon,
dismissing the complaint (Exhibit E). Having failed in her
attempt to obtain possession of the land in question
through the court, Angela Razon applied to the Director
of Lands for the purchase thereof on August 15, 1914
(Exhibit C). Having learned of said application, Valentin
Susi filed and opposition thereto on December 6, 1915,
asserting his possession of the land for twenty-five years
(Exhibit P). After making the proper administrative
investigation, the Director of Lands overruled the
opposition of Valentin Susi and sold the land to Angela
Razon. By virtue of said grant the register of deeds of
Pampanga, on August 31, 1921, issued the proper
certificate of title to Angela Razon. Armed with said
document, Angela Razon required Valentin Susi to
vacate the land in question, and as he refused to do so,
she brought and action for forcible entry and detainer in
the justice of the peace court of Guagua, Pampanga,
which was dismissed for lack of jurisdiction, the case
being one of title to real property (Exhibit F and M).
Valentin Susi then brought this action.
With these facts in view, we shall proceed to consider
the questions raised by the appellant in his assignments
of error.
It clearly appears from the evidence that Valentin Susi
has been in possession of the land in question openly,
continuously, adversely, and publicly, personally and
through his predecessors, since the year 1880, that is,
for about forty-five years. While the judgment of the
Court of First Instance of Pampanga against Angela
Razon in the forcible entry case does not affect the
Director of Lands, yet it is controlling as to Angela Razon
and rebuts her claim that she had been in possession
thereof. When on August 15, 1914, Angela Razon
applied for the purchase of said land, Valentin Susi had
already been in possession thereof personally and
through his predecessors for thirty-four years. And if it is
taken into account that Nemesio Pinlac had already
made said land a fish pond when he sold it on December
18, 1880, it can hardly be estimated when he began to
possess and occupy it, the period of time being so long
that it is beyond the reach of memory. These being the
facts, the doctrine laid down by the Supreme Court of
the United States in the case of Cariño vs. Government
1
of the Philippine Islands (212 U. S., 449 ), is applicable
here. In favor of Valentin Susi, there is, moreover, the
presumption juris et de jure established in paragraph (b)
of section 45 of Act No. 2874, amending Act No. 926,
that all the necessary requirements for a grant by the
Government were complied with, for he has been in
actual and physical possession, personally and through
his predecessors, of an agricultural land of the public
domain openly, continuously, exclusively and publicly
since July 26, 1894, with a right to a certificate of title to
said land under the provisions of Chapter VIII of said Act.
So that when Angela Razon applied for the grant in her
favor, Valentin Susi had already acquired, by operation
of law, not only a right to a grant, but a grant of the
Government, for it is not necessary that certificate of
title should be issued in order that said grant may be
sanctioned by the courts, an application therefore is
sufficient, under the provisions of section 47 of Act No.
2874. If by a legal fiction, Valentin Susi had acquired the
land in question by a grant of the State, it had already
ceased to be the public domain and had become private
property, at least by presumption, of Valentin Susi,
beyond the control of the Director of Lands.
Consequently, in selling the land in question to Angela
Razon, the Director of Lands disposed of a land over
which he had no longer any title or control, and the sale
thus made was void and of no effect, and Angela Razon
did not thereby acquire any right.
The Director of Lands contends that the land in question
being of the public domain, the plaintiff-appellee cannot
maintain an action to recover possession thereof.
If, as above stated, the land, the possession of which is
in dispute, had already become, by operation of law,
private property of the plaintiff, there lacking only the
judicial sanction of his title, Valentin Susi has the right to
bring an action to recover possession thereof and hold
it.
For the foregoing, and no error having been found in the
judgment appealed from, the same is hereby affirmed in
all its parts, without special pronouncement as to costs.
So ordered.
Avanceña, C.J., Malcolm, Street, Villamor, Ostrand,
Johns, and Romualdez, JJ., concur.
Johnson, J., took no part.
 8. [G.R. No. L-3793. February 19, 1908. ]
CIRILO MAPA, Petitioner-Appellee, v. THE INSULAR
GOVERNMENT, Respondent-Appellant.
SYLLABUS
1. AGRICULTURAL PUBLIC LANDS DEFINED. — The
phrase "agricultural public lands" defined by the act of
Congress of July 1, 1902, which phrase is also to be
found in several sections of the Public Land Act (No.
926), means those public lands acquired from Spain
which are neither mineral nor timber lands.
This case comes from the Court of Land Registration.
The petitioner sought to have registered a tract of land
of about 16 hectares in extent, situated in the barrio of
San Antonio, in the district of Mandurriao, in the
municipality of Iloilo. Judgment was rendered in favor of
the petitioner and the Government has appealed. A
motion for a new trial was made and denied in the court
below, but no exception was taken to the order denying
it, and we therefore can not review the evidence.
The decision of that court was based upon Act No. 926
section 54, paragraph 6 which follows:
"All persons who by themselves or their predecessors in
interest have been in the open, continuous exclusive,
and notorious possession and occupation of agricultural
public lands, as defined by said act of Congress of July
first, nineteen hundred and two, under a bona fide claim
of ownership except as against the Government, for a
period of ten years next preceding the taking effect of
this act, except when prevented by war, or force
majeure, shall be conclusively presumed to have
performed all the conditions essential to a Government
grant and to have received the same, and shall be
entitled to a certificate of title to such land under the
provisions of this chapter."
The only question submitted to the court below or to
this court by the Attorney-General is the question
whether the land in controversy is agricultural land
within the meaning of the section above quoted. The
findings of the court below upon that point are as
follows:
"From the evidence adduced it appears that the land in
question is lowland, and has been uninterruptedly, for
more than twenty years, in the possession of the
petitioner and his ancestors as owners and the same has
been used during the said period, and up to the present,
as fish ponds, nipa lands, and salt deposits. The
witnesses declare that the land is far from the sea, the
town of Molo being between the sea and the said land."
The question is an important one because the phrase
"agricultural public lands" as defined by said act of
Congress of July 1, is found not only in section 54 above
quoted but in other parts of Act No. 926, and it seems
that the same construction must be given to the phrase
wherever it occurs in any part of that law.
The claim of the Attorney-General seems to be that no
lands can be called agricultural lands unless they are
such by their nature. If the contention of the Attorney-
General is correct, and this land because of its nature is
not agricultural land, it is difficult to see how it could be
disposed of or what the Government could do with it if
it should be decided that the Government is the owner
thereof. It could not allow the land to be entered as a
homestead, for Chapter I of Act No. 926 allows the entry
of homesteads only upon "agricultural public lands" in
the Philippine Islands, as defined by the act of Congress
of July 1, 1902. It could not sell it in accordance with the
provisions of Chapter II of Act No. 926 for section 10
only authorizes the sale of "unreserved nonmineral
agricultural public land in the Philippine Islands, as
defined in the act of Congress of July first, nineteen
hundred and two." It could not lease it in accordance
with the provisions of Chapter III of the said act, for
section 22 relating to leases limits them to "nonmineral
public lands, as defined by section eighteen and twenty
of the act of Congress approved July first, nineteen
hundred and two." It may be noted in passing that there
is perhaps some typographical or other error in this
reference to sections 18 and 20, because neither one of
these sections mentions agricultural lands. The
Government could not give a free patent to this land to
a native settler, in accordance with the provisions of
Chapter IV, for that relates only to "agricultural public
land, as defined by act of Congress of July first, nineteen
hundred and two."
In fact, by virtue of the provisions of Act No. 926, the
Government could do nothing with this land except to
lay out a town site thereon in accordance with the
provisions of Chapter V, for section 36 relating to that
matter, says nothing about agricultural land.
The question before us is not what is agricultural land,
but what definition has been given to that phrase by the
act of Congress. An examination of that act will show
that the only sections thereof wherein can be found
anything which could be called a definition of the phrase
are sections 13 and 15. Those sections are as follows:
"SEC. 13. That the Government of the Philippine Islands,
subject to the provisions of this act and except as herein
provided, shall classify according to its agricultural
character and productiveness, and shall immediately
make rules and regulations for the lease, sale, or other
disposition of the public lands other than timber or
mineral lands, but such rules and regulations shall not
go into effect of have the force of law until they have
received the approval of the President, and when
approved by the President they shall be submitted by
him to Congress at the beginning of the next ensuing
session thereof and unless disapproved or amended by
Congress at said session they shall at the close of such
period have the force and effect of law in the Philippine
Islands: Provided, That a single homestead entry shall
not exceed sixteen hectares in extent.
"SEC. 15. That the Government of the Philippine Islands
is hereby authorized and empowered on such terms as
it may prescribe, by general legislation, to provide for
the granting or sale and conveyance to actual occupants
and settlers and other citizens of said Islands such parts
and portions of the public domain, other than timber
and mineral lands, of the United States in said Islands as
it may deem wise, not exceeding sixteen hectares to any
one person and for the sale and conveyance of not more
than one thousand and twenty-four hectares to any
corporation or association of persons: Provided, that the
grant or sale of such lands, whether the purchase price
be paid at once or in partial payments shall be
conditioned upon actual and continued occupancy,
improvement, and cultivation of the premises sold for a
period of not less than five years, during which time the
purchaser or grantee can not alienate or encumber said
land or the title thereto; but such restriction shall not
apply to transfers of rights and title of inheritance under
the laws for the distribution of the estates of
decedents."
It is seen that neither one of these sections gives any
express definition of the phrase "agricultural land." In
fact, in section 15 the word "agricultural" does not
occur.
There seem to be only three possible ways of deciding
this question. The first is to say that no definition of the
phrase "agricultural land" can be found in the act of
Congress; the second, that there is a definition of that
phrase in the act and that it means land which in its
nature is agricultural; and, third, that there is a
definition in the act and that the phrase means all of the
public lands acquired from Spain except those which are
mineral or timber lands. The court below adopted this
view, and held that the land, not being timber or
mineral land, came within the definition of agricultural
land, and that therefore Section 54 paragraph 6, Act No.
926 was applicable thereto.
1. There are serious objections to holding that there is
no definition in the act of the phrase "agricultural land."
The Commission in enacting Act No. 926 expressly
declared that such a definition could be found therein.
The President approved this act and it might be said that
Congress, by failing to reject or amend it, tacitly
approved it. Moreover, if it should be said that there is
no definition in the act of Congress of the phrase
"agricultural land," we do not see how any effect could
be given to the provisions of Act No. 916, to which we
have referred. If the phrase is not defined in the act of
Congress, then the lands upon which homesteads can
be granted can not be determined. Nor can it be known
what land the Government has the right to sell in
accordance with the provisions of Chapter II, nor what
lands it can lease in accordance with the provisions of
Chapter III, nor the lands for which it can give free
patents to native settlers in accordance with the
provisions of Chapter IV, and it would seem to follow,
necessarily, that none of those chapters could be put
into force and that all that had up to this time been
done by virtue thereof would be void.
2. The second way of disposing of the question is by
saying that Congress has defined agricultural lands as
those lands which are, as the Attorney-General says, by
their nature agricultural. As has been said before, the
word "agricultural" does not occur in section 15. Section
13 says that the Government "shall classify according to
its agricultural character and productiveness and shall
immediately make rules and regulations for the lease,
sale, or other disposition of the public lands other than
timber or mineral land." This is the same thing as saying
that the Government shall classify the public lands other
than timber or mineral lands according to its agricultural
character and productiveness; in other words, that it
shall classify all the public lands acquired from Spain,
and that this classification shall be made according to
the agricultural character of the land and according to
its productiveness.
One objection to adopting this view is that it is so vague
and indefinite that it would be very difficult to apply it in
practice. What lands are agricultural in nature? The
Attorney-General himself in his brief in this case says:
"The most arid mountain and the poorest soil are
susceptible of cultivation by the hand of man."
The land in question in this case, which is used as a
fishery, could be filled up and any kind of crops raised
thereon. Mineral and timber lands are expressly
excluded, but it would be difficult to say that any other
particular tract of land was not agricultural in nature.
Such lands may be found within the limits of any city.
There is within the city of Manila, and within a thickly
inhabited part thereof an experimental far. This land is
in its nature agricultural. Adjoining the Luneta, in the
same city, is a large tract of land, Camp Wallace,
devoted to sports. The land surrounding the city walls of
Manila, between them and the Malecon Drive on the
west, the Luneta on the south, and Bagumbayan Drive
on the south and east, is of many hectares in extent and
is in nature agricultural. The Luneta itself could at any
time be devoted to the growing of crops.
The objection to adopting this construction on account
of its uncertainty is emphasized when we consider that
whether certain land was or was not agricultural land, as
defined by the act of Congress, and therefore subject to
homestead entry, to sale, or to lease in accordance with
the provisions of Act No. 926, would be a question that
would finally have to be determined by the courts,
unless there is some express provision of the law
authorizing the administrative officers to determine this
question for themselves. Section 2 of Act No. 926
relating to homesteads provides that the Chief of The
Bureau of Public Lands shall summarily determine
whether the land described is prima facie under the law
subject to homestead settlement. Section 13, relating to
the sale of public lands, provides simply that the Chief of
the Bureau of Public Lands shall determine from the
certificate of the Chief of the Bureau of Forestry
whether the land applied for is more valuable for
agricultural than for timber purposes, but it says nothing
about his decisions as to whether it is or is not
agricultural land in its nature. Section 26 relating to the
lease of public lands provides that the Chief of the
Bureau of Public Lands shall determine from the
certificate of the Chief of the Bureau of Forestry
whether the land applied for is more valuable for
agricultural than for timber purposes and further
summarily determine from available records whether
the land is or is not mineral and does not contain
deposits of coal or salts. Section 34 relating to fee
patents to native settlers makes no provision for any
determination by the Chief of Bureau of Public Lands in
regard to the character of the land applied for.
After homesteads have been entered, lands, sold, and
leases made by the administrative officers on the theory
that the lands were agricultural lands by their nature, to
leave the matter of their true character open for
subsequent action by the courts would be to produce an
evil that should if possible be avoided.
3. We hold that there is to be found in the act of
Congress a definition of the phrase "agricultural public
lands," and after a careful consideration of the question
we are satisfied that the only definition which exists in
said act is the definition adopted by the court below.
Section 13 says that the Government shall "Make rules
and regulations for the lease, sale, or other disposition
of the public lands other than timber or mineral lands."
To our minds, that is the only definition that can be said
to be given to agricultural lands. In other words, that the
phrase "agricultural land" as used in Act No. 926 means
those public lands acquired from Spain which are not
timber or mineral lands. As was said in the case of Jones
v. The Insular Government (6 Phil Rep., 122, 133) where
these same section of the act of Congress were under
discussion:

"The meaning of these sections is not clear and it is

difficult to give to them a construction that would be
entirely free from objection."

But the construction we have adopted, to our minds, is

less objectionable than any other one that has been
suggested.

There is nothing in this case of Jones v. The Insular

Government which at all conflicts with the result here
arrived at. The question as to whether the lands there
involved were or were not agricultural lands within the
meaning of the sections was neither discussed nor
decided. In fact, it appears from the decision that those
lands, which were in the Province of Benguet, were
within the strictest definition of the phrase "agricultural
lands." It appears that such lands had been cultivated
for more than twelve years. What that case decided
was, not that the lands therein involved and other lands
referred to in the decision by way of illustration were
not agricultural lands but that the law there in question
and the other laws mentioned therein were not rules
and regulations within the meaning of section 13.

The judgment of the court below is affirmed, with the

costs of this instance against the Appellant. So ordered.
 9. G.R. No. L-13298 November 19, 1918
CORNELIO RAMOS, petitioner-appellant,
vs.
THE DIRECTOR OF LANDS, objector-appellee.
Basilio Aromin for appellant.
Office of the Solicitor-General Paredes for appellee.
MALCOLM, J.:
This is an appeal by the applicant and appellant from a
judgment of the Court of First Instance of Nueva Ecija,
denying the registration of the larger portion of parcel
No. 1 (Exhibit A of the petitioner), marked by the letters
A, B, and C on the plan, Exhibit 1, of the Government.
One Restituto Romero y Ponce apparently gained
possession of a considerable tract of land located in the
municipality of San Jose, Province of Nueva Ecija, in the
year 1882. He took advantage of the Royal Decree of
February 13, 1894, to obtain a possessory information
title to the land, registered as such on February 8, 1896.
Parcel No. 1, included within the limits of the possessory
information title of Restituto Romero, was sold in
February, 1907, to Cornelio Ramos, the instant
petitioner, and his wife Ambrosia Salamanca.
Ramos instituted appropriate proceedings to have his
title registered. Opposition was entered by the Director
of Lands on the ground that Ramos had not acquired a
good title from the Spanish government and by the
Director of Forestry on the ground that the first parcel
was forest land. The trial court agreed with the
objectors and excluded parcel No. 1 from registration.
So much for the facts.
As to the law, the principal argument of the Solicitor-
General is based on the provisions of the Spanish
Mortgage Law and of the Royal Decree of February 13,
1894, commonly known as the Maura Law. The Solicitor-
General would emphasize that for land to come under
the protective ægis of the Maura Law, it must have been
shown that the land was cultivated for six years
previously, and that it was not land which pertained to
the "zonas forestales." As proof that the land was, even
as long ago as the years 1894 to 1896, forestal and not
agricultural in nature is the fact that there are yet found
thereon trees from 50 to 80 years of age.
We do not stop to decide this contention, although it
might be possible, following the doctrine laid down by
the United States Supreme Court with reference to
Mexican and Spanish grantes within the United States,
where some recital is claimed to be false, to say that the
possessory information, apparently having taken
cognizance of the requisites for title, should not now be
disturbed. (Hancock vs. McKinney [1851], 7 Tex., 192;
Hornsby and Roland vs.United States [1869], 10 Wall.,
224.) It is sufficient, as will later appear, merely to
notice that the predecessor in interest to the petitioner
at least held this tract of land under color of title.
Subsection 6 of section 54, of Act No. 926, entitled The
Public Land Law, as amended by Act No. 1908, reads as
follows:
6. All persons who by themselves or their
predecessors and interest have been in the
open, continuous, exclusive, and notorious
possession and occupation of agricultural
public lands, as defined by said Act of Congress
of July first, nineteen hundred and two, under a
bona fide claim of ownership except as against
the Government, for a period of ten years next
preceding the twenty-sixth day of July,
nineteen hundred and four, except when
prevented by war or force majeure, shall be
conclusively presumed to have performed all
the conditions essential to a government grant
and to have received the same, and shall be
entitled to a certificate of title to such land
under the provisions of this chapter.
There are two parts to the above quoted subsection
which must be discussed. The first relates to the open,
continuous, exclusive, and notorious possession and
occupation of what, for present purposes, can be
conceded to be agricultural public land, under a bona
fide claim of ownership.
Actual possession of land consists in the manifestation
of acts of dominion over it of such a nature as a party
would naturally exercise over his own property. Relative
to actuality of possession, it is admitted that the
petitioner has cultivated only about one fourth of the
entire tract. This is graphically portrayed by Exhibit 1 of
the Government, following:
The question at once arises: Is that actual occupancy of
a part of the land described in the instrument giving
color of title sufficient to give title to the entire tract of
land?lawphil.net
The doctrine of constructive possession indicates the
answer. The general rule is that the possession and
cultivation of a portion of a tract under claim of
ownership of all is a constructive possession of all, if the
remainder is not in the adverse possession of another.
(Barr vs. Gratz's Heirs [1819], 4 Wheat., 213;
Ellicott vs. Pearl [1836], 10 Pet., 412; Smith vs. Gale
[1892], 144 U. S., 509.) Of course, there are a number of
qualifications to the rule, one particularly relating to the
size of the tract in controversy with reference to the
portion actually in possession of the claimant. It is here
only necessary to apply the general rule.
The claimant has color of title; he acted in good faith;
and he has had open, peaceable, and notorious
possession of a portion of the property, sufficient to
apprise the community and the world that the land was
for his enjoyment. (See arts. 446, 448, Civil Code.)
Possession in the eyes of the law does not mean that a
man has to have his feet on every square meter of
ground before it can be said that he is in possession.
Ramos and his predecessor in interest fulfilled the
requirements of the law on the supposition that he
premises consisted of agricultural public land.
The second division of the law requires consideration of
the term "agricultural public land." The law affirms that
the phrase is denied by the Act of Congress of July 1st,
1902, known as the Philippine bill. Turning to the
Philippine Bill, we find in sections 13 to 18 thereof that
three classes of land are mentioned. The first is
variously denominated "public land" or "public domain,"
the second "mineral land," and the third "timber land."
Section 18 of the Act of Congress comes nearest to a
precise definition, when it makes the determination of
whether the land is more valuable for agricultural or for
forest uses the test of its character.
Although these sections of the Philippine Bill have come
before the courts on numerous occasions, what was
said in the case of Jones vs. Insular Government ([1906],
6 Phil., 122), is still true, namely: "The meaning of these
sections is not clear and it is difficult to give to them a
construction that will be entirely free from objection." In
the case which gave most serious consideration to the
subject (Mapa vs. Insular Government [1908], 10 Phil.,
175), it was found that there does exist in the Act of
Congress a definition of the phrase "agricultural public
lands." It was said that the phrase "agricultural public
lands" as used in Act No. 926 means "those public lands
acquired from Spain which are not timber or mineral
lands."
The idea would appear to be to determine, by exclusion,
if the land is forestal or mineral in nature and, if not so
found, to consider it to be agricultural land. Here, again,
Philippine law is not very helpful. For instance, section
1820 of the Administrative Code of 1917 provides: "For
the purposes of this chapter, 'public forest' includes,
except as otherwise specially indicated, all unreserved
public land, including nipa and mangrove swamps, and
all forest reserves of whatever character." This
definition of "public forest," it will be noted, is merely
"for the purposes of this chapter." A little further on,
section 1827 provides: "Lands in public forests, not
including forest reserves, upon the certification of the
Director of Forestry that said lands are better adapted
and more valuable for agricultural than for forest
purposes and not required by the public interests to be
kept under forest, shall be declared by the Department
Head to be agricultural lands." With reference to the
last section, there is no certification of the Director of
Forestry in the record, as to whether this land is better
adapted and more valuable for agricultural than for
forest purposes.
The lexicographers define "forest" as "a large tract of
land covered with a natural growth of trees and
underbrush; a large wood." The authorities say that he
word "forest" has a significant, not an insignificant
meaning, and that it does not embrace land only partly
woodland. It is a tract of land covered with trees, usually
of considerable extent. (Higgins vs. Long Island R. Co.
[1908], 114 N. Y. Supp., 262; People vs. Long Island R.
Co. [1908], 110 N. Y. Supp., 512.)
The foresters say that no legal definition of "forest" is
practicable or useful. B. H. Baden-Powell, in his work on
Forest Law of India, states as follows:
Every definition of a forest that can be framed
for legal purposes will be found either to
exclude some cases to which the law ought to
apply, or on the other hand, to include some
with which the law ought not to interfere. It
may be necessary, for example, to take under
the law a tract of perfectly barren land which at
present has neither trees, brushwood, nor
grass on it, but which in the course f time it is
hoped will be "reboise;" but any definition wide
enough to take in all such lands, would also
take in much that was not wanted. On the
other hand, the definition, if framed with
reference to tree-growth, might (and indeed
would be almost sure to) include a garden,
shrubbery, orchard, or vineyard, which it was
not designed to deal with.
B. E. Fernow, in his work on the Economics of Forestry,
states as follows:
A forest in the sense in which we use the term,
as an economic factor, is by no means a mere
collection of trees, but an organic whole in
which all parts, although apparently
heterogeneous, jumbled together by accident
as it were and apparently unrelated, bear a
close relation to each other and are as
interdependent as any other beings and
conditions in nature.
The Director of Forestry of the Philippine Islands has
said:
During the time of the passage of the Act of
Congress of July 1, 1902, this question of forest
and agricultural lands was beginning to receive
some attention and it is clearly shown in
section 18 of the above mentioned Act; it
leaves to the Bureau of Forestry the
certification as to what lands are for
agricultural or forest uses. Although the Act
states timber lands, the Bureau has in its
administration since the passage of this act
construed this term to mean forest lands in the
sense of what was necessary to protect, for the
public good; waste lands without a tree have
been declared more suitable for forestry in
many instances in the past. The term 'timber'
as used in England and in the United States in
the past has been applied to wood suitable for
construction purposes but with the increase in
civilization and the application of new methods
every plant producing wood has some useful
purpose and the term timber lands is generally
though of as synonymous with forest lands or
lands producing wood, or able to produce
wood, if agricultural crops on the same land
will not bring the financial return that timber
will or if the same land is needed for protection
purposes.
xxx xxx xxx
The laws in the United States recognize the
necessity of technical advice of duly appointed
boards and leave it in the hands of these
boards to decide what lands are more valuable
for forestry purposes or for agricultural
purposes.
In the Philippine Islands this policy is follows to
as great an extent as allowable under the law.
In many cases, in the opinion of the Bureau of
Forestry, lands without a single tree on them
are considered as true forest land. For instance,
mountain sides which are too steep for
cultivation under ordinary practice and which,
if cultivated, under ordinary practice would
destroy the big natural resource of the soil, by
washing, is considered by this bureau as forest
land and in time would be reforested. Of
course, examples exist in the Mountain
Province where steep hillsides have been
terraced and intensive cultivation practiced but
even then the mountain people are very careful
not to destroy forests or other vegetative cover
which they from experience have found protect
their water supply. Certain chiefs have lodged
protests with the Government against other
tribes on the opposite side of the mountain
cultivated by them, in order to prevent other
tribes from cutting timber or destroy cover
guarding their source of water for irrigation.
Dr. M. S. Shaler, formerly Dean of the Lawrence
Scientific School, remarked that if mankind
could not devise and enforce ways dealing with
the earth, which will preserve this source of like
"we must look forward to the time, remote it
may be, yet equally discernible, when out kin
having wasted its great inheritance will fade
from the earth because of the ruin it has
accomplished."
The method employed by the bureau of
Forestry in making inspection of lands, in order
to determine whether they are more adapted
for agricultural or forest purposes by a
technical and duly trained personnel on the
different phases of the conservation of natural
resources, is based upon a previously prepared
set of questions in which the different
characters of the land under inspection are
discussed, namely:
Slope of land: Level; moderate; steep; very
steep.
Exposure: North; South; East; West.
Soil: Clay; sandy loam; sand; rocky; very rocky.
Character of soil cover: Cultivated, grass land,
brush land, brush land and timber mixed, dense
forest.
If cultivated, state crops being grown and
approximate number of hectares under
cultivation. (Indicate on sketch.)
For growth of what agricultural products is this
land suitable?
State what portion of the tract is wooded,
name of important timber species and estimate
of stand in cubic meters per hectare, diameter
and percentage of each species.
If the land is covered with timber, state
whether there is public land suitable for
agriculture in vicinity, which is not covered with
timber.
Is this land more valuable for agricultural than
for forest purposes? (State reasons in full.)
Is this land included or adjoining any proposed
or established forest reserve or communal
forest? Description and ownership of
improvements.
If the land is claimed under private ownership,
give the name of the claimant, his place of
residence, and state briefly (if necessary on a
separate sheet) the grounds upon which he
bases his claim.
When the inspection is made on a parcel of
public land which has been applied for, the
corresponding certificate is forwarded to the
Director of Lands; if it is made on a privately
claimed parcel for which the issuance of a title
is requested from the Court of Land
Registration, and the inspection shows the land
to be more adapted for forest purposes, then
the Director of Forestry requests the Attorney-
General to file an opposition, sending him all
data collected during the inspection and
offering him the forest officer as a witness.
It should be kept in mind that the lack of
personnel of this Bureau, the limited time
intervening between the notice for the trial on
an expediente of land and the day of the trial,
and the difficulties in communications as well
as the distance of the land in question greatly
hinder the handling of this work.
In the case of lands claimed as private
property, the Director of Forestry, by means of
his delegate the examining officer, submits
before the court all evidence referring to the
present forest condition of the land, so that the
court may compare them with the alleged right
by the claimant. Undoubtedly, when the
claimant presents a title issued by the proper
authority or evidence of his right to the land
showing that he complied with the
requirements of the law, the forest certificate
does not affect him in the least as such land
should not be considered as a part of the public
domain; but when the alleged right is merely
that of possession, then the public or private
character of the parcel is open to discussion
and this character should be established not
simply on the alleged right of the claimant but
on the sylvical condition and soil characteristics
of the land, and by comparison between this
area, or different previously occupied areas,
and those areas which still preserve their
primitive character.
Either way we look at this question we encounter
difficulty. Indubitably, there should be conservation of
the natural resources of the Philippines. The prodigality
of the spendthrift who squanders his substance for the
pleasure of the fleeting moment must be restrained for
the less spectacular but surer policy which protects
Nature's wealth for future generations. Such is the wise
stand of our Government as represented by the Director
of Forestry who, with the Forester for the Government
of the United States, believes in "the control of nature's
powers by man for his own good." On the other hand,
the presumption should be, in lieu of contrary proof,
that land is agricultural in nature. One very apparent
reason is that it is for the good of the Philippine Islands
to have the large public domain come under private
ownership. Such is the natural attitude of the sagacious
citizen.
If in this instance, we give judicial sanction to a private
claim, let it be noted that the Government, in the long
run of cases, has its remedy. Forest reserves of public
land can be established as provided by law. When the
claim of the citizen and the claim of the Government as
to a particular piece of property collide, if the
Government desires to demonstrate that the land is in
reality a forest, the Director of Forestry should submit to
the court convincing proof that the land is not more
valuable for agricultural than for forest purposes. Great
consideration, it may be stated, should, and
undoubtedly will be, paid by the courts to the opinion of
the technical expert who speaks with authority on
forestry matters. But a mere formal opposition on the
part of the Attorney-General for the Director of
Forestry, unsupported by satisfactory evidence will not
stop the courts from giving title to the claimant.
We hold that the petitioner and appellant has proved a
title to the entire tract of land for which he asked
registration, under the provisions of subsection 6, of
section 54, of Act No. 926, as amended by Act No. 1908,
with reference to the Philippine Bill and the Royal
Decree of February 13, 1894, and his possessory
information.
Judgment is reversed and the lower court shall register
in the name of the applicant the entire tract in parcel
No. 1, as described in plan Exhibit A, without special
finding as to costs. So ordered.
Arellano, C.J., Torres, Johnson, Street and Fisher, JJ.,
concur.
 10. G.R. No. L-25010 October 27, 1926
THE GOVERNMENT OF THE PHILIPPINE
ISLANDS, Plaintiff-Appellee, vs. PAULINO ABELLA, ET
AL., claimants;
MARIA DEL ROSARIO, petitioner-appellant.
Francisco, Lualhati and Lopez for appellant.
Attorney-General Jaranilla for appellee.
JOHNSON, J.:
This is a petition for the registration of a certain parcel
or tract of land located in the municipality of San Jose,
Province of Nueva Ecija, Philippine Islands. It appears
from the record that on the 21st day of September,
1915, the appellant Maria del Rosario presented a
petition in the Court of First Instance for the registration
under the Torrens system, of the very land now in
question by virtue of her appeal. In that case, after issue
joined and after hearing the evidence, the Honorable
Vicente Nepomuceno, judge, denied the registration of
all of the northern portion of the land included in her
petition represented by Exhibit 1, which was the plan
presented in that action, upon the ground that said
portion was more valuable for timber purposes than for
agricultural purposes. From that judgment Maria del
Rosario appealed.
The Supreme Court after a consideration of the
evidence affirmed the decision of the lower court. In the
course of that decision the Supreme Court, speaking
through Mr. Justice Moir, said: "We have examined the
plans and all the evidence presented in this case and are
of the opinion that the trial court was correct in its
declaration that this send a did not mean the old road to
Boñgabon. The fact that nearly all the northern property
is forestry land is a further indication that the applicant's
possessory information title did not include the land
running up to the road to Bongabon, because all the
papers which the applicant has regarding this property
1
call the land palayero." chanrobles virtual law library
Judge Nepomuceno in his decision directed that the
appellant herein present an amended plan in that case,
showing the particular part or parcel of the land in
question which she was entitled to have registered. We
have no evidence before us showing that order of Judge
Nepomuceno was ever complied with.
upon the ground that the lower court committed an
error in not registering all of the land included in her
opposition in her name.
In this court she presented a motion for rehearing and
in support thereof presents some proof to show that the
northern portion of the land in question is not forestry
land but that much of it is agricultural land. With
reference to said motion for rehearing, it may be said
that all of the proof which is presented in support
thereof existed at the time of the trial and might, with
reasonable diligence, have been presented. It cannot,
therefore, be considered now. It is not newly discovered
evidence. And moreover if it should be accepted it
would not be sufficient to justify the granting of a new
trial.
After a careful examination of the entire record and the
evidence adduced during the trial of this cause as well
as that adduced during the trial of the first cause, we are
fully persuaded that no error has been committed.
Whether particular land is more valuable for forestry
purposes than for agricultural purposes, or vice-versa, is
a question of fact and must be established during the
trial of the cause. Whether the particular land is
agricultural, forestry, or mineral is a question to be
settled in each particular case, unless the Bureau of
Forestry has, under the authority conferred upon it,
prior to the intervention of private interest, set aside for
forestry or mineral purposes the particular land in
question. (Ankron vs. Government of the Philippine
Islands, 40 Phil., 10.) During the trial of the present
cause the appellant made no effort to show that the
land which she claimed, outside of that which had been
decreed in her favor, was more valuable for agricultural
than forestry purposes. For all of the foregoing, the
judgment appealed from is hereby affirmed, with costs.
So ordered.
Avanceña, C. J., Street, Villamor, Ostrand, Johns,
Romualdez and Villa-Real, JJ., concur.

Nothing further seems to have occurred with reference

to the registration of the land included in the former
case until the 26th day of April, 1921, when the Acting
Director of Lands presented the petition in the present
case for the registration, under the cadastral survey, of a
portion of land located in the municipality of San Jose,
which included the very land claimed by Maria del
Rosario in the former action. She presented her
opposition in the present action, claiming the very land
which she claimed in the former action. The only proof
which she presented in support of her claim in the
present action was the proof which she had presented
in the former action. No proof was adduced in addition
thereto, which in the slightest degree showed that she
was entitled to the registration of any other parcel of
land than those which had been conceded to her in the
first action.

Upon the issue and the proof adduced in the present

case the Honorable C. Carballo, Auxiliary Judge of the
Sixth Judicial District, ordered registered in the name of
Maria del Rosario, under the cadastral survey, lots 3238,
3240, 3242 and 3243, which are the very lots which had
been ordered registered in her name in the former
action. From that judgment she appealed to this court
 11. G.R. No. L-13756 January 30, 1919
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, ET
AL., petitioners.
VICENTE JOCSON, ET AL., appellants,
vs.
THE DIRECTOR OF FORESTRY, objector-appellee.
Mariano Locsin Rama and J. E. Blanco for appellants.
Attorney-General Paredes for appellee.
MOIR, J.:
In the cadastral land registration for the town of
Hinigaran, Occidental Negros, the appellants sought to
register the three lots or parcels of land involved in this
appeal, which registration was opposed by the Director
of Forestry.
The trial court found that lot 1104 was almost entirely
"forestry" land, that a small portion of lot 1154 and all
of lots 1158 were "forestry" lands, to which appellants
had no title, and declared the lots public lands, and
refused registration of the parts of these lots to which
opposition had been filed by the Forestry Bureau. The
claimants excepted and perfected their bill of
exceptions and brought the case to this court for review,
setting up the following assignments of error:
1. The court erred in not holding to have been
proven the facts that the lots 1104, 1154, and 1158
of the cadastral survey of Hinigaran were possessed
by Bibiano Jocson as owner during his lifetime and
from a time prior to the year 1880, and, after his
death, by his heirs, on which lots nipa plants were
planted and now exists and that these latter are not
spontaneous plants utilized by said heirs.
2. The court erred in not holding to have been
proven the a part of lot No. 1158 is rice and pasture
land that was possessed as owner by Bibiano Jocson
during his lifetime and peaceably long before 1880, a
possession continued by his heirs who still enjoy the
use of the land up to the present time.
3. The court erred in not holding to have been
proven that on that same lot 1158, there has existed
since the year 1890, and still exists, a fish
hatchery which has been possessed and enjoyed by
the heirs of Bibiano Jocson, as owners, for more than
27 years, not counting the prior possession of their
predecessor in interest.
4. The court erred in holding that lot No. 1158 and
part of lots 1104 and 1154 are forest land, finding
this fact as sufficiently proven by the sole and absurd
testimony of the ranger to the effect that nipa is a
plant of spontaneous growth and in not planted; and
, as the photographs only refer to small portions of
the area of the lot, the court also erred in holding
that the whole lot was covered with firewood trees,
while in fact but a very small portion of it is covered
with trees which protect the nipa plants and the fish
hatchery, it having been proven that a large part of
the lot was sown with rice and used as pasture land.
5. The court erred in not holding that the parts of
lots 1104, 1154 and 1158, covered by mangrove
swamps, are agricultural land, and in not holding to
have been proven that these swamp are not
available, inasmuch as they are drained at low tide;
errors committed with manifest violation of law and
disregard of the jurisprudence established by the
Honorable Supreme Court of the Philippine.
6. The court erred in not holding that the claimants
and appellants, by their peaceable, public, and
continuous possession for more than forty years, as
owners, including that held by their predecessors in
interests, had acquired by prescription lots 1104,
1154, and 1158, in conformity with act No. 190,
section 41, which, without exception, is applicable to
the State as well as to private parties, and by
extraordinary prescription of thirty years.
7. The court erred in not adjudicating said lots to the
claimants and appellants, in consideration of the
possession they have had for more than forty years,
form the time of their predecessor in interest to the
present time, thus violating the legal provision
whereby the holders of land who have been in its
possession for ten years prior to the enactment of
the land law, Act No. 926, by the United States
Philippine Commission, are to be deemed the
absolute owners of such land, and to be presumed to
have applied for the same and to have complied with
the Spanish laws and all the proceedings required by
the Royal Decrees on the composition of titles; and,
therefore, pursuant to said Act now in force, the land
in question should be adjudicated to the possessors
thereof.
8. The court erred in not granting the new trial
requested by the appellants, the motion therefor
being based on the ground that his findings of facts,
if there are any, are openly and manifestly contrary
to the weight of the evidence.
It is not necessary to consider all these assignments of
error, for the main question involved is
whether manglares[mangroves] are agricultural lands or
timber lands. If they are timber lands the claimants
cannot acquire them by mere occupation for ten years
prior to July 26, 1904; if not, they can so acquire them
under the Public Land Act, and no grant or title is
necessary.
This being a cadastral case there are no findings of fact,
but the trial court states that lot 1104 was in possession
of claimants and their ancestors for more than thirty
years and lot 1154 for more than twenty-five years. Lot
1158 is declared to be wholly "forestal." The are of the
lots does not appear.
The evidence fully sustains the contention of the
claimants that they have been in possession of all of
those lots quietly, adversely and continuously under
a claim of ownership for more than thirty years prior to
the hearing in the trial court. There is not a word of
proof in the whole record to the contrary. They set up
no documentary title. They do claim the parts of the
lands denied registration are "mangles" with nipa and
various other kinds of aquatic bushes or trees growing
on them, and that in 1890 on lot 1158 they constructed
a fishpond (vivero de peces) which was later abandoned
as unprofitable, and that part of this lot is pasture land,
part palay and part "mangles."
The attorney-General contends in his brief that the parts
of the lands denied registration are public forest and
cannot be acquired by occupation, and that all
"manglares are public forests."
In the Act of Congress of July 1st, 1902, there is a
classification of all public lands of the Philippine Islands,
and in mentioning forestry land the Act of Congress
used the words "timber land." These words are always
translated in the Spanish translation of that Act as
"terrenos forestales." We think there is an error in this
translation and that a better translation would be
"terrenos madereros." Timber land in English means
land with trees growing on it. The manglar plant would
never be called a tree in English but a bush, and land
which has only bushes, shrubs or aquatic plants growing
on it can not be called "timber land."
The photographs filed by the Government as exhibits in
this case show that at two places there were trees
growing on this land, but the forester who testified for
the Government always calls these lots "mangles," and
he says the trees which are growing on the lands are of
no value except for firewood. The fact that there are a
few trees growing in a manglar or nipa swamp does not
change the general character of the land
from manglar to timber land.
That manglares are not forestry lands within the
meaning of the words "Timber lands" in the Act of
Congress has been definitely decided by this Court in
the case of Montano vs. Insular Government (12 Phil.
Rep., 572). In that case the court said:
Although argued at different times, five of these
cases have been presented substantially together,
all being covered by one brief of the late Attorney-
General in behalf of the Government in which,
with many interesting historical and graphic
citations he described that part of the marginal
seashore of the Philippine Islands known
as manglares, with their characteristic vegetation.
In brief, it may be said that they are mud flats,
alternately washed and exposed by the tide, in
which grow various kindered plants which will not
live except when watered by the sea, extending
their roots deep into the mud and casting their
seeds, which also germinate there. These
constitute the mangrove flats of the tropics, which
exists naturally, but which are also, to some
extent, cultivated by man for the sake of the
combustible wood of the mangrove, like trees, as
well as for the useful nipa palm propagated
thereon. Although these flats are literally tidal
lands, yet we are of the opinion that they can not
be so regarded in the sense in which the term is
used in the cases cited or in general American
jurisprudence. The waters flowing over them are
not available for purpose of navigation, and they
"may be disposed of without impairment of the
public interest in what remains."
The court on page 573 further said:
It is a kindred case to Cirilo Mapa vs. The Insular
Government . . . (10 Phil. Rep., 175).
As some discussion has arisen as to the scope of
that decision, it appears opportune to reaffirm the
principle there laid down. The issue was, whether
lands used as a fishery, for the growth of nipa, and
as salt deposits, inland some desistance from the
sea, and asserted, thought not clearly proved, to
be overflowed at high tide, could be registered as
private property on the strength of ten years'
occupation, under paragraph 6 of section 54 of Act
No. 926 of the Philippine Commission. The point
decided was that such land within the meaning of
the Act of Congress of July 1, 1902, was
agricultural, the reasoning leading up to that
conclusion being that Congress having divided all
the public lands of the Islands into three classes it
must be included in tone of the three, and being
clearly neither forest nor mineral, it must of
necessity fall into the division of agricultural land.
In the case of Mapa vs. Insular Government (10 Phil.
Rep., 175), this court said that the phrase "agricultural
lands" as used in Act No. 926 means those public lands
acquired from Spain which are not timber or mineral
lands.
Whatever may have been the meaning of the term
"forestry" under the Spanish law, the Act of Congress of
July 1st, 1902, classified the public lands in the
Philippine Islands as timber, mineral or agricultural
lands, and all public lands that are not timber or mineral
lands are necessarily agricultural public lands, whether
they are used as nipa swamps, manglares, fisheries or
ordinary farm lands.
The definition of forestry as including manglares found
in the Administrative Code of 1917 cannot affect rights
which vested prior to its enactment.
These lands being neither timber nor mineral lands the
trial court should have considered them agricultural
lands. If they are agricultural lands then the rights of
appellants are fully established by Act No. 926.
Paragraph 6 of section 54 of that Act provides as
follows:
All persons who by themselves or their
predecessors in interest have been in the open,
continuous, exclusive, and notorious possession
and occupation of agricultural public lands, as
defined by said Act of Congress of July first,
nineteen hundred and two, under a bona
fide claim of ownership except as against the
Government, for a period of ten years next
preceding the taking effect of this Act, except
when prevented by war of force majuere, shall be
conclusively presumed to have performed all the
conditions essential to a government grant and to
have received the same, and shall be entitled to a
certificate of title to such land under the provisions
of this chapter.
xxx xxx xxx
This Act went into effect July 26th, 1904. Therefore, all
persons who were in possession of agricultural public
lands under the conditions mentioned in the above
section of Act No. 926 on the 26th of July, 1894, are
conclusively presumed to have a grant to such lands and
are entitled to have a certificate of title issued to them.
(Pamintuan vs.Insular Government, 8 Phil., Rep., 485.)
While we hold that manglares as well as nipa lands are
subject to private acquisition and ownership when it is
fully proved that the possession has been actual,
complete and adverse, we deem it proper to declare
that each case must stand on its own merits.
One cannot acquire ownership of a mangrove swamp by
merely cutting a few loads of firewood from the lands
occasionally. The possession must be more complete
than would be required for other agricultural lands.
The appellants were in actual possession of the lots in
question from 18821, and their ancestors before that
date, and they should have been declared the owners
and title should have been issued to them.
There is no need to consider the other points raised on
appeal.
The judgment of the lower court is reversed and the
case is returned to the lower court, with instruction to
enter a decree in conformity with this decision. So
ordered.
Arellano, C.J., Torres, Johnson, Street, Araullo and
Avanceña, JJ., concur.
 12. G.R. No. L-48321 August 31, 1946 for the grant of such benefits. The condition precedent
OH CHO, applicant-appellee, is to apply for the registration of the land of which they
vs. had been in possession at least since July 26, 1894. This
THE DIRECTOR OF LANDS, oppositor-appellant. the applicant's immediate predecessors in interest failed
Office of the Solicitor General Roman Ozaeta and to do. They did not have any vested right in the lot
Assistant Solicitor General Rafael Amparo for appellant. amounting to the title which was transmissible to the
Vicente Constantino for appellee. applicant. The only right, if it may thus be called, is their
Ferrier, Gomez and Sotelo and J. T. Chuidian as amici possession of the lot which, tacked to that of their
curiae. predecessors in interest, may be availed of by a
PADILLA, J.: qualified person to apply for its registration but not by a
This is an appeal from a judgment decreeing the person as the applicant who is disqualified.
registration of a residential lot located in the It is urged that the sale of the lot to the applicant should
municipality of Guinayangan, Province of Tayabas in the have been declared null and void. In a suit between
name of the applicant. vendor and vendee for the annulment of the sale, such
The opposition of the Director of Lands is based on the pronouncement would be necessary, if the court were
applicant's lack of title to the lot, and on his of the opinion that it is void. It is not necessary in this
disqualification, as alien, from acquiring lands of the case where the vendors do not even object to the
public domain. application filed by the vendee.
The applicant, who is an alien, and his predecessors in Accordingly, judgment is reversed and the application
interest have been in open, continuous, exclusive and for registration dismissed, without costs.
notorious possession of the lot from 1880 to filing of the Moran, C.J., Feria, Pablo, Hilado and Bengzon,
application for registration on January 17, 1940. JJ., concur.
The Solicitor General reiterates the second objection of
the opponent and adds that the lower court, committed
an error in not declaring null and void the sale of the lot
to the applicant. 13. NO COPY OF FULL TEXT UY UN SPANISH
The applicant invokes the Land Registration Act (Act No.
496), or should it not be applicable to the case, then he
would apply for the benefits of the Public Land Act (C.A.
No. 141).
The applicant failed to show that he has title to the lot
that may be confirmed under the Land Registration Act.
He failed to show that he or any of his predecessors in
interest had acquired the lot from the Government,
either by purchase or by grant, under the laws, orders
and decrease promulgated by the Spanish Government
in the Philippines, or by possessory information under
the Mortgaged Law (section 19, Act 496). All lands that
were not acquired from the Government, either by
purchase or by grant below to the public domain. An
exception to the rule would be any land that should
have been in the possession of an occupant and of his
predecessors in interest since time immemorial, for such
possession would justify the presumption that the land
had never been part of the public domain or that it had
been a private property even before the Spanish
conquest. (Cariño vs. Insular Government, 212 U.S., 449;
53 Law. Ed., 594.) The applicant does not come under
the exception, for the earliest possession of the lot by
his first predecessors in interest begun in 1880.
As the applicant failed to show title to the lot, the next
question is whether he is entitled to decree or
registration of the lot, because he is alien disqualified
from acquiring lands of the public domain (sections 48,
49, C.A. No. 141).
As the applicant failed to show the title to the lot, and
has invoked the provisions of the Public Land Act, it
seems unnecessary to make pronouncement in this case
on the nature or classifications of the sought to be
registered.
It may be argued that under the provisions of the Public
Land Act the applicant immediate predecessor in
interest would have been entitled to a decree of
registration of the lot had they applied for its
registration; and that he having purchased or acquired
it, the right of his immediate predecessor in interest to a
decree of registration must be deemed also to have
been acquired by him. The benefits provided in the
Public Land Act for applicant's immediate predecessors
in interest should comply with the condition precedent
 14. G.R. No. L-19535 July 10, 1967
HEIRS OF PELAGIO ZARA; PIO, CLEMENTE, SERAFIA,
PORFIRIO and ESTEBAN, all surnamed MINDANAO;
MARIA and GLICERIA, both surnamed SEDARIA; DULCE
CORDERO, VICTORIA DE LOS REYES and JOSE
GARCIA, applicants-appellants,
vs.
DIRECTOR OF LANDS, DIRECTOR OF
FORESTRY, Government oppositor-appellees.
VICENTE V. DE VILLA, JR., and VICENTE S. DE VILLA, SR.,
private oppositors-appellees.
Jose L. Matias and H. A. Jambora for applicants-
appellants.
Francisco Villanueva, Jr. and Gregorio L. Oquitania for
private oppositors-appellees.
Manuel Reyes Castro for oppositor-appellee Director of
Forestry.
MAKALINTAL, J.:
Appeal from an order of the Court of First Instance of
Batangas (Lipa City) dismissing appellants' "application
for registration of the parcel of land consisting of 107
hectares, more or less, situated in the barrio of Sampiro,
Municipality of San Juan, Province of Batangas, and
designated in amended plan PSU-103696 as Lot A."
The proceedings in the court a quo are not disputed.
On August 4, 1960 appellants filed an application for
registration of the land above described pursuant to the
provisions of Act 496. They alleged that the land had
been inherited by them from their grandfather, Pelagio
Zara, who in turn acquired the same under a Spanish
grant known as "Composicion de Terrenos Realengos"
issued in 1888. Alternatively, should the provisions of
the Land Registration Act be not applicable, applicants
invoke the benefits of the provisions of Chapter VIII,
Section 48, subsection (b) of C.A. 141 as amended, on
the ground that they and their predecessor-in-interest
had been in continuous and adverse possession of the
land in concept of owner for more than 30 years
immediately preceding the application.
Oppositions were filed by the Director of Lands, the
Director of Forestry and by Vicente V. de Villa, Jr. The
latter's opposition recites:
x x x that the parcel of land sought to be
registered by the applicants consisting of 107
hectares, more or less, was included in the area
of the parcel of land applied for registration by
Vicente S. de Villa, Sr. in Civil Case No. 26, L.R.
Case No. 601 in this Court, which was decided
by this same Court through the then incumbent
Judge, the Honorable Juan P. Enriquez, on
September 30, 1949; that the parcel sought to
be registered by the applicants was declared
public land in said decision; that they (the
oppositors Vicente V. de Villa, Jr. and Vicente S.
de Villa, Sr.) have an interest over the land in
question because for a period more than sixty
(60) years, the de Villas have been in
possession, and which possession, according to
them, was open continuous, notorious and
under the claim of ownership; that the
proceeding being in rem, the failure of the
applicants to appear at the case No. 26, L.R.
Case No. 601 to prove their imperfect and
incomplete title over the property, barred
them from raising the same issue in another
case; and that as far as the decision in Civil Case
No. 26, L.R. Case No. 601 which was affirmed in
the appellate court in CA-G.R. No. 5847-R is
concerned, there is already "res-adjudicata" —
in other words, the cause of action of the
applicant is now barred by prior judgment; and
that this Court has no more jurisdiction over
the subject matter, the decision of the Court in
said case having transferred to the Director of
Lands.
On November 15, 1960 the De Villas (De Villa, Sr. was
subsequently included as oppositor) filed a motion to
dismiss, invoking the same grounds alleged in its
opposition, but principally the fact that the land applied
for had already been declared public land by the
judgment in the former registration case.
The trial court, over the objection of the applicants,
granted the motion to dismiss by order dated January
27, 1961, holding, inter alia, that "once a parcel of land
is declared or adjudged public land by the court having
jurisdiction x x x it cannot be the subject anymore of
another land registration proceeding x x x (that) it is
only the Director of Lands who can dispose of the same
by sale, by lease, by free patent or by homestead."
In the present appeal from the order of dismissal
neither the Director of Lands nor the Director of
Forestry filed a brief as appellee. The decisive issue
posed by applicants-appellants is whether the 1949
judgment in the previous case, denying the application
of Vicente S. de Villa, Sr., and declaring the 107 hectares
in question to be public land, precludes a subsequent
application by an alleged possessor for judicial
confirmation of title on the basis of continuous
possession for at least thirty years, pursuant to Section
48, subsection (b) of the Public Land Law, C.A. 141, as
amended. This provision reads as follows:
The following-described citizens of the
Philippines, occupying lands of the public
domain or claiming to own any such lands or an
interest therein, but whose titles have not been
perfected or completed, may apply to the
Court of First Instance of the province where
the land is located for confirmation of their
claims and the issuance of a certificate of title
therefor, under the Land Registration Act, to
wit:
xxx xxx xxx
(b) Those who by themselves or through their
predecessors in interest have been in open,
continuous, exclusive and notorious possession
and occupation of agricultural lands of the
public domain, under a bona fide claim of
acquisition of ownership, for at least thirty
years immediately preceding the filing of the
application for confirmation of title, except
when prevented by war or force majeure.
These shall be conclusively presumed to have
performed all the conditions essential to a
Government grant and shall be entitled to a
certificate of title under the provisions of this
Chapter.1äwphï1.ñët
The right to file an application under the foregoing
provision has been extended by Republic Act No. 2061
to December 31, 1968.
It should be noted that appellants' application is in the
alternative: for registration of their title of ownership
under Act 496 or for judicial confirmation of their
"imperfect" title or claim based on adverse and
continuous possession for at least thirty years. It may be
that although they were not actual parties in that
previous case the judgment therein is a bar to their
claim as owners under the first alternative, since the
proceeding was in rem, of which they and their
predecessor had constructive notice by publication.
Even so this is a defense that properly pertains to the
Government, in view of the fact that the judgment
declared the land in question to be public land. In any
case, appellants' imperfect possessory title was not
disturbed or foreclosed by such declaration, for
precisely the proceeding contemplated in the aforecited
provision of Commonwealth Act 141 presupposes that
the land is public. The basis of the decree of judicial
confirmation authorized therein is not that the land is
already privately owned and hence no longer part of the
public domain, but rather that by reason of the
claimant's possession for thirty years he is conclusively
presumed to have performed all the conditions essential
to a Government grant.
On the question of whether or not the private
oppositors-appellees have the necessary personality to
file an opposition, we find in their favor, considering
that they also claim to be in possession of the land, and
have furthermore applied for its purchase from the
Bureau of Lands.1äwphï1.ñët
Wherefore, the order appealed from is set aside and the
case is remanded to the Court a quo for trial and
judgment on the merits, with costs against the private
oppositors-appellees.
Reyes, J.B.L., Bengzon, J.P., Zaldivar, Castro, Angeles and
Fernando, JJ., concur.
Concepcion, C.J. and Dizon, J., took no part.