*70

on the south to the Ojo del Cuervo, on the east to the springs called the Estancia Springs, on the west to the said Abó Mountain, he prays you to be pleased to grant the same in real possession, in the exercise of the powers upon you conferred by his majesty, in order to establish thereon a permanent ranch or hacienda, which he engages to occupy with his stock, sustaining the same with armed servants, who may defend it against the incursions of the enemy without abandoning it; and he will also, if possible, open lands for cultivation, whether irrigable or dependent upon the seasons, for the advancement of agriculture; and, although the water sources it contains are small and uncertain, he proposes to improve them with reservoirs and other appliances which will secure every advantage possible; and he affirms that it has at present no owner, and that it never has had any known

owner.

"Wherefore he prays you to be pleased to grant this his petition in conformity with law, and to direct the royal judge of his district to give him legal possession, with the proper documents and other formalities which are required, whereby he will receive favor, grace, and justice. I swear that I do not act in bad faith, and in that which is necessary, &c. "San Fernando, February 4, 1819.

"Bartolomé Baca. [Rubric.]" "Santa Fé, July 2, 1819. "As he asks it according to law, and I understand that no injury results to any third party, but, on the contrary, increase of stock raising and agriculture under the conditions asked:

"Don José Garcia De La Mora will proceed to give the possession, designating limits, and doing what is proper, which, being concluded, he will transmit the expediente to this superior office, so that, if it be approved, the proper testimonio may be ordered to be given to the petitioner. Melgares. [Rubric.]"

"In execution of the decree of July 2, 1819, I, José Garcia De La Mora, the judge commissioned by Lieutenant Colonel Facundo Melgares, governor of the province of New Mexico, proceeded in company with captain of volunteer militia, Bartolomé Baca, who, by his merits and conduct in the service of both majesties, as has been proved by the offices which have been conferred upon him of alcalde mayor, and in other services in the field, the governors always appointing him commander of campaigns and scouting parties, which he always led with honor and valor, and in addition to all this he has always surpassed others in voluntary contributions, setting a good example to his inferiors; wherefore, in reward of all these merits and services, I have proceeded in his company to examine the tract he applies for, and knowing that it is wild land, and that no injury results to any third party, I have placed him in possession in the name of the king (whom may God preserve), and I took him by the hand, and led him over the whole tract, be shouting, and plucking up grass, and throw

ing stones in the name of the king, saying, 'Long live our beloved monarch, Don Fernando VII., whom God may preserve!' with hurrahs and shouts, and I shed tears of delight at his acclamations; and I designated to him for his boundaries: On the south, the Ojo del Cuervo, following its line to the Ojo del Chico; on the east, the Cerro del Pedernal; on the north, the Ojo del Cibolo; on the west, the Altura de la Sierra (summit of the mountain range); the said gentleman being satisfied and grateful to the said governor for the benefit conferred upon him, binding himself to increase by his intelligence the limited waters which have been donated to him in order that his herds may be maintained, to which he is bound, transmitting the whole for your approval, he will satisfy the fees which may be charged to him.

"Wherefore I transmit this to the superior authority in order that, it being examined by you, you may decide as you may deem just.

"San Fernando, September 12, 1819. To which I certify with my two assisting witnessJosé Garcia De La Mora. [Rubric.l "Assisting witness:

es.

The original of the last portion of the above paper, from the words "San Fernando," etc., reads in Spanish as follows:

"San Fernando, doce de sepre. de mil ochocientos diez y nueve años. De qe doy fee, con los dos de mi asistencia.

"José Garcia De La Mora. [Rubrica.] "De assa.:

"José Andrés Caller. [Rubrica.] "De assa.:

"Franco. Galiz. [Rubrica.] "[Roto.] de los limites por [Roto].

"[Roto.] elgares."

"[Rubrica.]

The petitioner claims that the evidence shows an approval by the governor of the action of the alcalde in delivering juridical possession of the land described in the petition of Baca, and that thereby the grant became effective and absolute. Also that there is sufficient evidence of an adverse possession of such land by Baca from 1819 to the time of his death in 1834, and after that time by his heirs and representatives.

The court below found the following facts: "First. That on February 4, 1819, Bartolomé Baca presented a petition to the then governor of the province of New Mexico, Facundo Melgares, setting forth that he had registered a piece of vacant land, which was called the "Torreon'; that the said governor made the said grant as petitioned for on July 2, 1819, and directed José Garcia De La Mora to give possession, designating the limits and officiating duly; that afterwards, to wit, on September 12, 1819, the said official gave to the said

7་

Bartolomé Baca the actual possession of the said tract of land called the "Torreon,' petitioned for.

"Second. That the said tract of land called the Torreon' had been in the actual possession of Bartolomé Baca for more than four years from the date of the grant on said September 12, 1819.

"Third. That the said petitioner, who filed her petition for herself and other heirs of Manuel Antonio Otero and Miguel Antonio Otero, are the legal successors in interest to the rights of the said heirs of the said Bartolomé Baca.

"The court finds as a matter of law that the grant to said Bartolomé Baca was imperfect at the time of the cession of the department of New Mexico to the United States of America by the treaty of Guadalupe Hidalgo, and that the petitioner, for herself and other heirs of Manuel Antonio Otero and Miguel Antonio Otero, as the legal representatives of the said Bartolomé Baca, is entitled to a confirmation of eleven square leagues of land within the outboundaries of the tract of land called the "Torreon,' granted to said Baca, and of which he was put in actual possession.

"It is therefore ordered, adjudged, and decreed by this court that the claim of the petitioner for the land hereinbefore described and set out be, and the same is hereby, confirmed to the extent of eleven square leagues to the heirs and legal representatives of Bartolomé Baca, provided that this confirmation shall not confer any right or title to any gold, silver, or quicksilver, mines or minerals, of the same."

In regard to the character of the grant involved in this proceeding, it is conceded on the part of counsel for petitioner that the approval of the governor was necessary in order to make the grant effective. In their brief they say: "Now, this grant was not finally made until return was made by the alcalde, and approval had. Before that time it had no existence. The confirmation of the government was the one act that fixed the right of the grantee, and that final act was based upon the return, and, necessarily in this case, in confirmation of the return."

We have no doubt of the correctness of this view. The governor, in his reference of the case to the alcalde, bids him transmit the expediente to his office, so that, if approved, the proper testimonio may be ordered to be given the petitioner. Until approved, the action of the alcalde was of no effect.

The burden of showing this approval rested with the petitioner, and, unless she has sustained it, she has failed in this branch of her

case.

In speaking of the burden cast upon a petitioner who asks confirmation of an alleged grant of land under the act of 1891, above referred to, this court, in Whitney v. U. S., 167 U. S. 529, at page 547, 17 Sup. Ct. 863, said: "Upon the whole, we have come to the conclusion that the claimants have not made out their case by a fair preponderance of evidence or such weight of testimony as is

necessary to establish their title to this large tract of land."

Counsel for the petitioner claim that, assuming the burden as above stated, there is a presumption, arising from an inspection of these papers and from a consideration of the other evidence in the case, that there was an approval of the action of the alcalde by the governor, and that the grant was thus made effective. We do not concur in this view, and we are of opinion that the papers themselves show no approval by the governor, and that there is no evidence of other facts or circumstances from which such approval could properly be presumed.

There is no approval to be found upon the papers themselves. This is too plain for argument. The torn portion of the paper following the report of the alcalde has no word of approval thereon. There is part of a sentence which, as translated, means "the boundaries by," and under it is the signature of Melgares, with the exception that the first letter of his name is lacking. This does not and cannot, in and of itself, constitute an approval in fact; and there must be something more than this torn paper upon which to found a presumption of such approval.

It is, however, urged that the presumption arises from an inspection of all the papers above referred to, aided by a consideration of the other evidence in the case.

* We think no such presumption can be indulged in from an inspection of all of the papers in question, even when aided by the other evidence.

Such an inspection shows that the alcalde proceeded on his own account to deliver juridical possession of a much larger tract of land than Baca had petitioned for in his petition to the governor. This larger tract the alcalde described in his report to the governor, and submitted his action to the governor for his final approval.

The action of the alcalde is sufficient to prevent a presumption of approval founded solely on an inspection of the papers. The difference between the amount of the land asked for and that delivered by the alcalde is too great to permit of any presumption of approval. There must be some proof of it. We are not aided in making this presumption by a consideration of the other evidence.

Counsel for the petitioner refer to the fact of the possession of these papers by Baca as an important piece of evidence in aid of this presumption. The possession alluded to was proved by one of the grandsons of Baca, who was a witness for the petitioner. He testified that his mother was a daughter of Baca, and that his father was Baca's administrator. The papers of Baca were in the possession of his father as such administrator. His father died somewhere about 1880, and after his death the witness took the box of papers that had belonged, as he said, to his grandfather, and kept it. He did not know its contents until he was looking for some

papers belonging to his father, when he found what he describes as a part of the grant of a tract to Bartolomé Baca. Witness took the paper to Manuel Antonio Otero, who said, "Let us search for the other part, and I will buy it from you and the other heirs;" and then, after a further search, the other part was found, and these papers thus found are the ones above set forth.

Upon these facts it is said that it appears that the papers were in possession of Baca, and that they were delivered to him by or on behalf of the governor, and it therefore follows that the grant was approved by him, or otherwise the paper*would not have been delivered. The bare fact of possession of the papers as above stated is all that the evidence shows. There is not one word of proof of any delivery of the papers to Baca, and we cannot see, from the mere fact of possession of the papers under these circumstances, sufficient ground upon which to base a presumption of delivery, and therefore of approval.

We are asked to presume the fact of delivery because the papers were found in the box of papers once belonging to Baca, and we are then further asked to presume an approval because of the presumed delivery. This requires an entirely too free use of presumptions unsupported by evidence tending in the direction of proof of the facts to be presumed. If the papers had contained an approval by the governor, it might, perhaps, have been admissible to presume a delivery from the fact of possession. It is too much to ask us to presume both facts from the sole fact of the possession of the papers. The other evidence in the case, viewed in connection with these facts, is wholly insufficient to permit of the presumption. It is directed only to the fact of possession of the land by Baca; the character and weight of which evidence will be spoken of hereafter. It is enough to say here that it is insufficient to be used as lending any strength to the presumption of approval which we are at present discussing.

In the condition in which the papers were found, some evidence further than mere possession of them should have been given. The papers were not found together, or at the same time. They were torn, and part of the name of the governor had disappeared. They were not of a character to be probably found in the hands of Baca. The proof as to the manner in which Spanish grants were evidenced, as ascertained from an examination of the records in the surveyor general's office in the territory, is unimportant. The witness was simply unable to give an opinlon as to the general custom. Here, however, the papers themselves showed that something other than those papers were to be given the grantee. The papers formed the expediente, and belonged in the archives of the government when approved; and they show on their face that, if the government

approved, there was to be given in that case a proper testimonio to the petitioner, which it was evidently contemplated should be something other than this expediente. There is no proof of the existence of any such paper or that it was ever given.

Under all these circumstances, some explanation as to the possession of these papers by Baca should have been given, showing they were intended as in place of the testimonio, so that the presumption of a delivery and an approval by reason thereof would not necessarily rest solely upon the fact that the papers without any approval indorsed on the return were found as stated.

Evidence of the delivery of juridical possession of the land to Baca is also referred to as aiding the presumption of the subsequent approval by the governor; and the delivery of the papers to Baca, and the further alleged fact of the retention of such possession by Baca up to his death, in 1834, is also mentioned for the purpose of strengthening this presumption. The alcalde, in fact, delivered to Baca juridical possession of much more land than was asked for by Baca in his petition. This fact is attempted to be explained upon the the ory that the petition of Baca did not describe in detail the land he asked for, and that the governor, in referring the petition to the alcalde, directed him to designate the limits, and do what was proper, etc. There is, however, a sufficient description of the land contained in the petition of Baca. It was in regard to that particular land thus described that the acting governor said that, "as he asks it according to law," etc., "Don Mora will proceed to give the possession, designating the limits." Was this an authority to Don Mora to designate such limits as might seem good to him, or was it simply an authority to designate those limits which were described in the petition of Baca? We have no doubt it was the latter, and hence, when the alcalde made return that he had delivered juridical possession of a much larger tract of land than had been asked for, it would naturally be supposed there might be hesitation and refusal to approve on the part of the governor. Certainly, no presumption of approval would arise from these facts. Therefore the delivery of juridical possession, as shown in this case, has not the usual importance that is attached thereto when such delivery takes place as the concluding act in a grant of an absolute character. This delivery was concededly conditional, and could have no final effect until the approval by the governor; and this approval must be shown by the petitioner to have been given, and cannot be presumed to follow the delivery of juridical possession.

Actual possession of the land described in the alleged grant for four year by Baca, as found by the court below, is also claimed as an important fact upon which, in addition to the evidence already alluded to, the presumption of approval may properly be sustained. The evidence upon which the finding is based is not substantially contradicted, and it shows

that, after the delivery of juridical possession by the alcalde, Baca built some small buildings on a portion of the land, for the use of his herders and servants, who occupied them, and who were attending to the business of looking after his horned cattle, sheep, and horses, for which Baca wanted pasture. He never himself resided on the land, but, subsequently to his taking possession from the alcalde, and at different times prior to his death, in 1834, other persons, embracing in all a number of families, had come upon Baca's portion of the land, and had dwelt there, without any molestation from him, and probably with his consent, on account of the protection their presence would afford to his interests against the Indians. During the years subsequent to the grant in question there were granted within the boundaries thereof small grants to settlements or towns, which the petitioner says were granted with the assent of Baca, and his legal representatives. There is also evidence of some small attempts at cultivation within a narrow range of land contained in the grant,-hardly enough to speak of. Some of the witnesses for the petitioner said the place was called "Torreon" because Baca built a torreon there, and the people gave it that name for that reason. The accuracy of this evidence becomes doubtful, to say the least, when, by referring to the original application of Baca to the acting governor for the grant, he describes it therein as "a vacant

tract called the "Torreon,' and which extends," etc., as described. Two of the sons of Baca occupied at one time a log house that was built by Baca upon the land, and they occupied it while superintending the herders who were caring for the cattle being pastured in the vicinity. Petitioner's witnesses also said that since 1819, and up to the death of Baca, he was recognized as the owner of the property; and after his death the property was recognized and respected as that of Baca.

Who were the persons thus recognizing ownership is not stated,-whether servants and agents of Baca, or independent third persons. Some of the witnesses making these statements were wholly ignorant, as they said, of the fact that grants of portions of this land had been made by the Mexican government as vacant and occupied lands. Subsequently to the date of 1819, such conveyances were, in fact, made; and, whether the title conveyed by them was good or bad, it appears conclusively that the Mexican government, during the time when this possession of Baca is claimed to have been in existence, regarded the tract as vacant and unoccupied so far as to permit of its conveyance to others of various portions of the land now claimed. Another witness thought that Baca occupied about 300 varas in width from east to west and from north to south, but he was ignorant as to the boundaries of the grant, although, so far as he knew, Baca claimed no more than 300 varas; and this was under some cultivation for a distance of about 100 varas from north to south, and this was as late as 1829 or 1830. Other persons during this time

came in and made application to the judge of first instance, as witness remembered, for other portions of land embraced in this alleged grant, on the theory that such portions were vacant and unoccupied.

This, in substance, is the evidence of possession, and it cannot, as we think, at all strengthen the presumption of an approval of the grant, and a possession in accordance with it.

Nor do we think there is any evidence upon which to base a claim of adverse possession of this land as of right, or under some claim of title. There is no evidence showing a possession exclusive in its nature, and founded upon a claim of right to the land so possessed. If there had been evidence of an approval of the grant, the delivery of juridical possession, as stated in the return of the alcalde, might be sufficient evidence of title at one time to the whole land; yet, in the absence of such evidence of approval, we are of opinion that the actual possession, as proved, was totally insufficient to support a claim of title to this immense tract of land; nor is it sufficient to support a presumption that the acting governor did approve the grant, and that what appears upon the torn expediente is in reality part of his written approval thereof. The recognition of the property as belonging to Baca was very probably a recognition of the occupancy by him of the 300 varas above alluded to, and is surely not definite enough to base a claim that the possession of this large amount of land by Baca was either notorious or in any degree exclusive, or that any portion of it was ever used by him for any purpose other than the pasturing of his cattle, sheep, and horses, and purposes connected therewith, but in no way exclusive of other persons.

In regard to proof of the fact of pasturing cattle as evidence of an adverse possession upon which to base a claim of title, we have held that such fact is of very slight weigh when applied to cases arising under alleged grants of land of the nature of the one under consideration. In the case of Whitney v. U. S., 167 U. S. 529, 546, 17 Sup. Ct. 857, 863, already above cited, this court said, speaking through Mr. Justice Brown, as follows:

"The claimant also relies upon a long-continued adverse possession of this land, maintained for nearly 170 years from the date of the grant, and nearly 80 years from the date of the testimonio issued by the alcalde mayor, De Baca. Had it been shown that this possession was complete, adverse, and undisputed during the whole life of this grant, such possession would probably be regarded as complete evidence of title. Nor are we disposed to deny that the fact that the Luceros and their descendants pastured stock upon these lands is evidence of such possession, but, in order to make it of any particular weight, It should be shown to have been exclusive, and that no other person pastured, or had the same right to pasture, upon these lands. The proceedings in the case first above mentioned, of the intrusion of the Romeros, indicate the

lands to have been held in common, and to have been subject to pasturage by the Indians and other residents of that neighborhood. Under such circumstances it should be made to appear that the rights of Lucero and his descendants were exclusive in this particular. In addition to this, however, it is a fact so notorious that we may take judicial notice of it, that mere pasturage upon these Western lands is very slight evidence of possession. The court below was of the opinion that from a practical standpoint the grazing of stock in this country has no value as evidence of practical location. In view of the fact that all, or nearly all, of this testimony respecting possession is given by witnesses who are descended from Lucero, or connected with his family, or are interested in the litigation, and the possession relied upon is not shown to have been exclusive, or inconsistent with the use of this vast tract as a pasturage common to all the dwellers in that neighborhood, we think the court did not err in refusing to give it weight as evidence of title."

These remarks apply with great force to this case, so far as the evidence herein goes to show actual possession by reason of the pasturing of stock, which is really all the evidence of possession the case affords. It is entirely lacking in evidence of an exclusive possession under a claim of right, and the testimony is consistent with a mere occupancy of but a small portion of the land by Baca and his servants for purposes of pasturage, and without claim of further or exclusive right or title.

There is another fact that we think bears with a good deal of force upon the question whether there ever was an approval by the governor, and, as connected therewith, whether Baca himself ever thought that he had, or claimed to have, any title to or property in the land described in his petition or in the report of the alcalde, and that fact is that he makes no mention whatever of this property in his will, and does not, in that instrument, claim to have any title to or interest in the same. The will was put in evidence only for the purpose of showing the written declarations of Baca as to his ownership of property and his omission to name the property in question, and we think it sufficiently proved for that purpose.

The failure to enumerate in his will a particular piece of property owned by a testator would, in ordinary cases, be of not the slightest significance. But a perusal of the will under examination shows, as we think, quite plainly, that the testator was, in effect, marshaling his assets, and mentioning in the instrument all his property, and making specific dispositions thereof. He speaks in great detail of his different pieces of property, both real and personal. The paper cannot be read without giving the impression that the testator was naming therein every piece of real property which he claimed to own. A reading of the will is the most satisfactory and the best proof of the correctness of this statement;

and the instrument, with the exception of the formal parts, is therefore given in full in the margin. 1

After reading the will, the inference is, as we think, irresistible, that Baca did not suppose he owned, and made no claim to own, the property in question here. If he had owned it, or claimed to own it, there can be no doubt it would have been mentioned in the will. A grant containing at the lowest estimate half a million acres of land would be much too large for the testator to have' overlooked or ignored in a declaration of ownership of property such as is contained in this will.

We should infer from this omission that Baca knew he did not own the land, and was

1 Will of Bartolomé Baca.

First, I commend my soul to God, our Lord, who, from nothing, created it, and my body to the earth, from which it was made, which, when a corpse, I direct be shrouded in the habit of our seraphic father, San Francisco, and to be_buried in the Church of the Pure and Spotless Concepcion de Tome.

It is my will that my burial be humble, and with mass, with the body present. I also declare that I am lawfully married, in facie ecclesiæ, to Dona Maria De La Luz Chaves, from which marriage we have had and have, as our legitimate children, Maria Rita, Manuela Antonia, Maria Manuela, Juan, Manuel, and Maria Lugarda. I also declare as my property the house where I live, containing seventeen serviceable ana three unserviceable rooms, with a chapel where the holy sacrifice of private mass is celebrated, adorned with thirty-five inrages in sculpture and pictures, a pulpit, twenty-four mirrors, a censer with its boot of silver, five chasubles with their corresponding accessories, two capes, two albs, two sashes, six altar draperies, two missals, one chalice with its accessories, two cruettes with their salvers, eight metal candlesticks, and its vestry, with a chest in which the ornaments are kept. I also declare as my property the utensils of my house, consisting of eight mirrors, eleven silver plates, twelve spoons, and eight forks also of silver, three copper kettles, two large chests, four carts with trappings, five trunks, three hampers, one silver vase and a tankard of the same, one wardrobe, one carriage, four serviceable and three unserviceable wagons, one flask case with twelve flasks, eight hoes, three axes, two adzes, three bars of iron, two American saws, one thousand six hundred dollars in money, one copper boiler. I also declare as my property nine small houses in this place of San Fernando, four small houses at El Cerro, the farming land I have at this place and at El Cerro, with the purchase I have in this said sitio, which is coterminous with the sitio of Valencia. I also declare as my property a house I have in the sitio of the Peraltas, a broken field, and an interest in the [Good for seal third for the years 1833

and '34. Rubric.]

said sitio. I also declare as my property a house and lands in the sitio of the Aragons, an interest in said sitio, which I bought of the late José Ara

gon.

I also declare as my property a ranch which I bought of Don Luciano Garcia on the other side, in front of Bernalillo, which consists of a house and lands, the value of which is one thousand dollars, which I gave for it. I also declare as my property two ranches in the sitio of Tome, with its houses, which I purchased of José Manuol Apodaca and Andres Mirabal, and two large fields purchased of Felipe Montoya. I also declare as my property two fields, and an in