United States v. Reading/Separate Catron
Mr. Justice CATRON.

I agree that the grant to Major Reading describes the land he applied for so that it can be ascertained and surveyed; and secondly, that he took possession and built a house on it within a year after the execution of the grant, in compliance with its material condition, and that the judgments of the board of commissioners, and of the district court of California, were proper. But there are no facts in the case on which any question can be raised, whether the grantee, Reading, was subject to be denounced for failing to take possession and building a house; and therefore I cannot agree that the doctrine should be introduced into the opinion here, as it may embarrass the court in other cases in which the question will properly arise.

Nor can I be committed to the assumption extracted from the Fr emont case, and sought to be sanctioned in the principal opinion, that a Spanish concession, authorizing the grantee to occupy and cultivate, is indefeasible in its operation, although the land was never possessed nor occupied, unless some person shall denounce the land as forfeited, and obtain a second concession for it from the governor. The assumption signifies that every incipient concession made by Mexican authority secured the land to the claimant without the performance of any one condition; that the claimant is only bound to prove that the concession was signed by a person holding the office of governor at the time; or, in other words, that the grant was not forged. How ruinous such an assertion may eventually prove in the cases of old and abandoned claims is quite manifest, as it must apply in all cases where the same land is covered by different grants; the oldest will of course be the better title, unless the younger grantee can show that the land had been denounced, and the first grant revoked by the authority that made it. When such a case is presented, and we are called on to consider this doctrine of a 'denouncement,' I wish to be free to do so, unaffected by previous assertions and dicta in cases that did not involve the question, and in which it was never considered by me.

That the Fr emont case did not involve the doctrine is manifest; it was a floating claim for 50,000 arpens of land, subject to be located by selection and survey in any part of a large section of country bounded by rivers and mountains; and the opinion of this court was, that Alvarado took, and Col. Fr emont held, as assignee of Alvarado, a pervading interest in the entire section of country, and that the land might be taken anywhere within it, so that the rights of others were not disturbed. The rule is, so far as I know, throughout the former dominions of Spain on this continent, where donations of land have been made for the purposes of cultivation or pasturage, and where the donations imposed the condition that the grantee should occupy and cultivate the land, and he failed to do so or abandoned it, that the claim under it was defeated.

It is assumed that the Fr emont claim stood on the footing of that of General Greene, for 25,000 acres derived from North Carolina, to be located and surveyed within the military district by commissioners designated for that purpose.

General Greene's grant, in effect, was a floating claim, just such an interest in the lands as was reserved for the officers and soldiers of the North Carolina line, by virtue of warrants issued to them, and which might be located in a land-office in any part of the military district. This is the doctrine held by the courts of Tennessee, where the land lies, in reference to General Greene's grant, and the interest that warrant holders had in common with General Greene, as will be seen by the case of Neal v. E. T. College, 6 Yerger, 190.

General Greene acquired no specific land; he acquired by the act of the legislature a promise of the specified quantity, to be ascertained by a subsequent survey and allotment. And this was the condition of the Fr emont title, as this court decided.

Now, how was it possible for any one to apply to a Mexican governor, and ask for Alvarado's land, because he did not inhabit or cultivate it, or because he had abandoned it? He never had any land; he only had a promise of land, or a common interest in a large tract of country; and the idea of any one denouncing a holder of this floating claim, and asking for the particular land it covered, would have been unmeaning and idle.

The Fr emont case, therefore, furnished no grounds for raising or deciding the question of denouncement, and the repeal of the first grant and of re-grant to another. What is now claimed for the opinion in that case, as part of the court's legitimate decision, can only be treated as an assertion, and as part of the reasoning of the court in coming to a conclusion on other questions involved in the controversy.

Cases of denouncement in advance of a second grant for the same land are unknown in California, so far as we are advised; and the result of holding this proceeding necessary before a second grant could be made, (although no survey of the first had been secured, nor any possession taken,) must result in the conclusion that, among several concessions for the same land, the oldest will hold it; and those in possession under younger grants must yield the possession. This is the common-law doctrine on which the Fr emont case is supposed to have been decided. But is this the true rule as regards double grants, according to the Spanish law, as administered in countries formerly owned and governed by Spain?

The law has been established in Louisiana for nearly forty years, that where the Spanish authorities have granted the same land twice, and the younger grantee has taken possession and performed the conditions of inhabitation and cultivation, he is entitled to hold the land; and this was held in contests between the first and second grantees, and in cases where no denouncement had been made in favor of the younger grantee. Boissier et al. v. Metayer, 5 Mar. R. 678, (1818;) Gonsanlier's Heirs v. Brashear, 5 Martin's N. S. 33; Baker v. Thomas, 2 Louisiana R. 634; Brossard v. Gonsanlier, 12 Robinson's R. 1.

The correctness of these decisions I have never doubted, and they have been substantially followed by this court, when it held, as it has often done, that a concession or first decree for land, over which no ownership was exercised or possession taken during the existence of the Spanish government, was inoperative, and imposed no obligation on the United States to confirm the title. It was so held in the case of The United States v. Boisdor e, 11 How. 96, which has been followed in various other cases since.

With this explanation, I concur in the affirmance of the judgment.