APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This suit was begun by a petition for partition and to quiet title, filed by George W. Bond and eighty-two others in the District Court of Valencia County, New Mexico, against the unknown heirs of twenty-nine persons named, all deceased, and the unknown owners, proprietors and claimants of the premises commonly called the Tome grant situate in that county and described as containing 121,594.53 acres. The plaintiffs alleged that they were owners of an undivided half interest.
The town of tome appeared and answered, denying any title or interest in the plaintiffs, averring that the grant by Spain was to the town in communal right, was confirmed by act of Congress to the town, a then existing municipality, was so patented by the United States, and was incorporated under the laws of New Mexico; that allotments were made of parts of the land to settlers on the grant in fee in severalty, and ownership of the residue was in the municipality and had been held by it exclusively and adversely since it was patented, April 5, 1871.
Doroteo Chaves, with three hundred and ninety-one others, appeared and answered, denying any individual right in any of the plaintiffs, adopting the answer of the town as to the communal character of the grant, averring that they were themselves severally owners in fee of parts of the grant, and resisting partition.
Translations of the title papers were, by stipulation, made parts of the answers. Demurrers to the latter were overruled, and a reply was filed, to which there was a demurrer. This demurrer was sustained, and, the plaintiffs electing to stand upon their reply, judgment was rendered dismissing the suit. Upon the plaintiffs' appeal the Supreme Court of the Territory affirmed the judgment, 16 New Mex. 660, and on a further appeal the case is now before this court.
The facts are settled by the pleadings. The questions here are, whether the original grant made by the Crown of Spain in 1739 was in fee in individual right or in communal right to the town, title remaining in the Crown except as to specific parcels allotted to individuals, and whether, if it was a grant in individual right, the confirming act of Congress, and the patent pursuant thereto, changed its character.
The facts, as shown by the record, are these: Juan Barela, with twenty-eight others, in 1739 petitioned that the governor "be pleased to donate to them the land called Tome Dominguez, granted to those who first solicited the same and who declined settling thereon." The governor did "grant to them, in the name of His Majesty, whom may God preserve, the land petitioned for, called the land of Tome Dominguez, for themselves, their successors, and whomever may have a right thereto under the conditions and circumstances required in such cases, and which is to be without prohibition to any one desiring to settle the same, holding and improving it during the time required by law. In view of which, I should order, and did order, that said senior justice or his lieutenant, whose duty it is, shall place them in possession of the aforementioned lands, giving in all cases to each one the portion he may be entitled to in order to avoid difficulties which may occur in the future."
There was a giving of "juridical possession," a form and
ceremony essential to the passing of title by grant under the Spanish law. The report of the officer conducting this ceremony, so far as here material, is as follows: "In the new settlement of 'Nuestra Senora de la Concepcion de Thomi Dominguez,' instituted and established by Don Gaspar Mendoza, actual governor and captain general of this Kingdom of New Mexico, on the thirtieth day of the month of July, in the year one thousand seven hundred and thirty-nine, . . . the parties concerned being together, I proceeded to the above-mentioned place, and all being present, I notified them of the decree; I took them by the hand, walked with them over the land; they cried out, pulled up weeds, threw stones, as required by law; and having placed the new settlers in possession of said lands, I gave them the title and vocation they should have in the settlement, which bears the name aforementioned. . . . And the first proceedings having been noted, I proceeded to establish the boundaries as contained in the first petition . . . at which principal boundaries I ordered them to perpetuate their existence with permanent land marks, pointing out to them also, as a means of good economy, their common pastures, water and watering places, and uses and customs for all, to be the same without dispute, with the condition that each one is to use the same without dispute, in equal portions, the richest as well as the poorest; and by virtue of what has been ordered, I pronounce this royal possession as sufficient title for themselves, their children, heirs and successors, to hold their lands now and forever at ...