sary to resort to the pre-emption law to make out any shadow of such right." In this case the following extract from an opinion of Attorney General Bates was quoted with approval: "A mere entry upon land, with continued occupancy and improvement thereof, gives no vested interest in it. It may, however, give, under our national land system, a privilege of pre-emption. But this is only a privilege conferred on the settler to purchase lands in preference to others. His settlement protects him from intrusion or purchase by others, but confers no right against the government." A number of authorities were cited to the same effect. It was held that it was within the power of congress to withdraw land which had been pre-empted from entry or sale, though this might defeat the imperfect right of the settler. In the Yosemite Valley Case, 15 Wall. 77, the construction given to the pre-emption law in Frisbie v. Whitney was approved, the court observing (page 88): "It is the only construction which preserves a wise control in the government over the public lands, and prevents a general spoliation of them under the pretense of intended pre-emption and settlement. The settler, being under no obligation to continue his settlement and acquire the title, would find the doctrine advanced by the defendant, if it could be maintained that he was possessed by his settlement of an interest beyond the control of the government, a convenient protection for any trespass and waste in the destruction of timber or removal of ores which he might think proper to commit during his occupation of the premises."

The right which is given to a person or corporation by a reservation of public lands in his favor is intended to protect him against the actions of third parties, as to whom his right to the same may be absolute; but as to the government, his right is only conditional and inchoate. By the homestead act (Rev. St. § 2289), certain classes of persons therein specified are entitled to enter a quarter section of land subject to pre-emption at a certain price, upon making an affidavit of facts (section 2290) before the register or receiver, including in such affidavit a statement that "his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use and benefit of any other person." By a later act, adopted in 1891 (26 Stat. 1098), this affidavit is now required to state that the settler "will faithfully and honestly endeavor to comply with all the requirements of law as to settlement, residence, and cultivation necessary to acquire title to the land applied for; that he or she is not acting as the agent of any person, corporation, or syndicate in making such entry, nor in collusion with any person, corporation, or syndicate to give them the benefit of the land entered, or any part thereof, or the timber thereon." By section 2291, no patent shall issue until the expira

tion of five years from the date of the entry, the settler being required to prove by two credible witnesses that he has resided upon or cultivated the land for such term of five years immediately succeeding the time of filing the affidavit, and that no part of such land has been alienated, except for certain public purposes. By section 2297, if, before the expiration of the five years, the settler changes his residence or abandons the land for more than six months at any time, the lands so entered shall revert to the government; and by section 2301, the settler may, at any time before the expiration of the five years, obtain a patent for the lands by paying the minimum price therefor, and making proof of settlement and cultivation, as provided by law, granting pre-emption rights.

From this résumé of the homestead act it is evident-First, that the land entered continues to be the property of the United States for five years following the entry, and until a patent is issued; second, that such property is subject to divestiture, upon proof of the continued residence of the settler upon the land for five years; third, that meantime such settler has the right to treat the land as his own, so far, and so far only, as is necessary to carry out the purposes of the act. The object of this legislation is to preserve the right of the actual settler, but not to open the door to manifest abuses of such right. Obviously the privilege of residing on the land for five years would be ineffectual if he had not also the right to build himself a house, outbuildings, and fences, and to clear the land for cultivation, and to that extent the act limits and modifies the act of 1831, now embraced in Rev. St. § 2461. It is equally clear that he is bound to act in good faith to the government, and that he has no right to pervert the law to dishonest purposes, or to make use of the land for profit or speculation. The law contemplates the possibility of his abandoning it, but he may not in the meantime ruin its value to others, who may wish to purchase or enter it.

With respect to the standing timber, his privileges are analogous to those of a tenant for life or years. In this connection, it is said by Washburn in his work upon Real Property (volume 1, 1st Ed., p. 108): "In the United States, whether cutting of any kind of trees in any particular case is waste seems to depend upon the question whether the act is such as a prudent farmer would do with his own land, having regard to the land as an inheritance, and whether doing it would diminish the value of the land as an estate."

"Questions of this kind have frequently arisen in those states where the lands are new and covered with forests, and where they cannot be cultivated until cleared of the timber. In such case it seems to be lawful for the tenant to clear the land if it would be in conformity with good husbandry to do so,

•499

+498

the question depending upon the custom of farmers, the situation of the country, and the value of the timber. * * Wood cut by a tenant in clearing the land belongs to him, and he may sell it, though he cannot cut the wood for purposes of sale; it is waste if he does."

By analogy we think the settler upon a homestead may cut such timber as is necessary to clear the land for cultivation, or to build him a house, outbuildings, and fences, and, perhaps, as indicated in the charge of the court below, to exchange such timber for lumber, to be devoted to the same purposes, but not to sell the same for money, except so far as the timber may have been cut for the purpose of cultivation. While, as was claimed in this case, such money might be used to build, enlarge, or finish a house, the toleration of such practice would open the door to manifest abuses, and be made an excuse for stripping the land of all its valuable timber. One man might be content with a house worth $100, while another might, under the guise of using the proceeds of the timber for improvements, erect a house worth several thousands. A reasonable construction of the statute a construction consonant both with the protection of the property of the government in the land and of the rights of the settler-we think restricts him to the use of the timber actually cut, or to the lumber exchanged for such timber, and used for his improvements, and to such as is necessarily cut in clearing the land for cultivation.

While this question never seems to have arisen in this court before, in U. S. v. Cook, 19 Wall. 591, a suit in trover for the value of timber cut from an Indian reservation, it was held that, while the right of use and occupancy by the Indians was unlimited, their right to cut and sell timber, except for actual use upon the premises, was restricted to such as was cut for the purpose of clearing the land for agricultural purposes; that, while they were at liberty to sell the timber so cut for the purpose of cultivation, they could not cut it for the purpose of sale alone; in other words, if the cutting of the timber was the principal, and not the incident, then the cutting would be unlawful, and the timber when cut became the absolute property of the United States. Their position was said to be analogous to that of a tenant for life, the government holding the title, with the rights of a remainder-man.

In the courts of original jurisdiction it has been uniformly held that a similar rule applied to homestead entries. U. S. v. McEntee, 23 Int. Rev. Rec. 368, Fed. Cas. No. 15,673; U. S. v. Nelson, 5 Sawy. 68, Fed. Cas. No. 15,864; The Timber Cases, 11 Fed. 81; U. S. v. Smith, 11 Fed. 493; U. S. v. Stores, 14 Fed. 824; U. S. v. Yoder, 18 Fed. 372; U. S. v. Williams, 18 Fed. 475; U. S. v. Lane, 19 Fed. 910; U. S. v. Freyberg, 32 Fed. 795; U. S. v. Murphy, 32 Fed. 376. This general con

census of opinion is entitled to great weight as authority.

While we hold in this case that, as between the United States and the settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, we do not wish to be understood as expressing an opinion whether, as between the settler and the state, it may not be deemed the property of the settler, and therefore subject to taxation. Carroll v. Soffard, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Railway Co. v. Prescott, 16 Wall. 603; Railroad Co. v. McShane, 22 Wall. 444; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341.

As the land in question continued to be "the land of the United States," within the meaning of section 2461, the first question must be answered in the negative, and the second in the affirmative.

(159 U. S. 452)

UNITED STATES v. CHAVES et al. (November 11, 1895.) No. 196.

EVIDENCE

MEXICAN LAND GEANT LOST ARCHIVES JUDICIAL NOTICE-MEXICAN LAWS. 1. The United States courts take judicial no-' tice of the Mexican laws and regulations pertaining to grants made before the cession.

2. On an issue as to whether the Mexican governor of New Mexico made, in 1833, a certain grant to a number of persons for the establishment of the town of Cubero, five witnesses, two of whom claimed to be among the original grantees, and the others of whom were alive at the time of the alleged grant, and claimed under the original grantees, testified to the making of the grant and the giving of possession thereunder, and two of them testified to a current report that the official copy of the grant was stolen. Documents dated in 1835, 1840, and 1841 were produced, showing a settlement of disputes between the town of Cubero and a certain pueblo as to boundaries; and there was also in evidence a petition by the people of Cubero, dated in 1856, stating that they were in possession under a Mexican grant dated about 1834, and that the original papers were lost. To explain the absence of the original grant from the Mexican archives, evidence was given that about 1870 a large number of the archives were lost, and only a part thereof recovered, and it was shown that the registry of Mexican grants in the office of the territorial surveyor general was fragmentary and defective. It also appeared that the claimants under the grant had been in undisturbed possession of the land for 60 years. Held, that the evidence sustained a finding that the grant was made.

Appeal from the Court of Private Land, Claims.

This is an appeal on behalf of the United States from a decree of the court of private land claims, made on the 26th day of September, 1892, in the matter of the claim for certain lands in Valencia county, N. M., commonly called the "Cubero Land Grant."

The case as presented in the pleadings is as follows:

It is claimed by the petitioners that in the year 1833 the republic of Mexico, by Francis

co Sarricino, the governor of the territory of New Mexico, granted to Juan Chaves and about 60 others, "and to the town of Cubero, whose establishment and incorporation were intended and declared by the terms of said grant," a tract of land now situated in the county of Valencia, N. M.

The description of the land as claimed is set out in the petition, and is there said to contain about 11 square leagues.

They allege the loss and destruction of said grant and the testimonio as a reason for not being able to state accurately its date or the description of the land or the act of possession. They allege: That the chief alcalde of that Jurisdiction did, during the same year, put them in possession, but they are unable to state who was the alcalde or what the date was of such delivery of possession.

That the petitioners are the heirs and legal representatives of the original grantees, except Juan Antonio Duran, who is the only survivor of such grantees.

That they are now in possession and occupation of said land, claiming under said grant. That said grant was unconditional, except so far as the colonization law imposed conditions.

They charge that, preliminarily to the making of the said grant, the said governor required the parties petitioning first to purchase certain improvements which had been made upon the said land by one Francisco Baca, a Navajo Indian chief, who had been residing on the tract by permission of the government. That they did purchase of said Indian chief the said improvements, which said Indian chief relinquished to them and vacated the land. *That, said preliminary conditions having been performed, the governor and chief alcalde delivered to the grantees a duplicate of the granting decree and of the act of juridical possession, and placed the originals of said decree and act in the Mexican archives at Santa Fé.

They allege that said originals, although once in the custody of the defendant (the United States) after the solemnization of the treaty of Guadalupe Hidalgo, were wrongfully and negligently destroyed or lost by the defendant.

That the duplicates were intrusted by the grantees to Juan Chaves, one of their number, and he kept them until his death, in 1846. Since his death they have not been found, and plaintiffs aver that they were stolen and carried away and destroyed or lost by one Vicente Margarito Hernandez.

They charge that, the original grant papers having been lost, a controversy arose between the petitioners and the pueblo of Laguna in the year 1841, and in that controversy the boundary line on the side next to Laguna was fixed and adjusted.

They allege that the grant was made to the inhabitants of Cubero at that time for the purpose of establishing a town thereon, and that since that time they have been in possession of the whole of the ground.

The answer of the United States puts in issue all of the allegations of the petition.

It denies that there was ever a grant made by the governor of New Mexico to the alleged grantees, as alleged in the petition.

It denies that the alleged testimonio of said grant was ever lost or destroyed, and that the possession of said plaintiffs or any of them was derived by the act of any official of the Mexican government authorized by the laws of Mexico to grant or deliver the same.

It denies that the duplicate of the alleged granting decree and act of possession was ever delivered by the governor or chief alcalde to the alleged grantees, or was ever placed by the governor among the Mexican archives of Santa Fé.

It avers that, if a grant was made to the alleged grantees*for the purpose of establishing a town, the conditions imposed by law have never been complied with, and therefore they are not entitled to confirmation under the act creating the court of private land claims.

That a large portion of said grant had been disposed of by the United States to the Atlantic & Pacific Railroad Company, and that it was a necessary party defendant; and a misjoinder of parties was pleaded.

On August 29, 1892, the court entered a decree confirming the grant, and denying the right of the Atlantic & Pacific Railroad Company to intervene, except so far as its right of way was concerned, which right was admitted by the plaintiffs, from which decree an appeal was taken by the United States.

Matt. G. Reynolds and Holmes Conrad, Sol. Gen., for the United States.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

It is provided in the ninth section of the act of March 3, 1891, establishing the court of private land claims, that, upon any appeal from such court, "the supreme court shall retry the cause, as well the issues of fact as of law, and may cause testimony to be taken in addition to that given in the court below, and may amend the record of the proceedings below as truth and justice may require; and on such retrial and hearing every question shall be open."

The present case has been submitted to us on the record of the court below, containing the pleadings, the evidence, and the de

cree.

The decree finds as follows: "That the complainants are citizens of the United States and residents of the county of Valencia, in the territory of New Mexico; that in the year 1833 a colony grant of the lands in controversy was made by the proper authority of the republic of Mexico, through the, governor of the territory of New Mexico, Francisco Sarricino,*to Juan Chaves and six-* ty-one others, for the purpose of colonizing the place of Cubero, and that said coloniza.

tion was had and made; that the title to the land in controversy in this cause is 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 this land was situated; that the said complainants are in the possession of the said land embraced within the calls of the said grant, and claim the same; that they and their ancestors and predecessors in right have been in the possession of the same since the issuance of the grant by the Mexican government, and that complainants have such a claim and interest in the land as gives them a right to apply to the court for a confirmation of their title; that the lands claimed embraced an area of about 16,000 acres, but the exact area cannot be stated, as the same has never been surveyed; that the intervener, the Atlantic & Pacific Railroad Company, has no right in or to the real estate and lands included within said grant, except to its right of way for its railroad track as now laid down and operated through and across said lands, which right of way was conceded to said railroad company by said complainants on the trial of the cause."

If these findings of fact are sustained by the evidence in the record, the decree of the court below, adjudging the title and claim of the complainants to be good and valid, and confirming the same in them, their heirs, successors, and assigns, should be affirmed.

The act provides that all proceedings subsequent to the petition shall be "conducted as near as may be according to the practice of courts of equity of the United States;

and that, by a final decree, the court shall settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, according to the law of nations, the stipulations of the treaty between the United States and the republic of Mexico in 1848, and the treaty between the same powers in 1853, and the laws and ordinances of the government from which it is alleged to have been derived."

The first rule of decision thus laid down by congress for our guidance is that we are to have regard to the law of nations; and as to this it is sufficient to say that it is the usage of the civilized nations of the world, when territory is ceded, to stipulate for the property of its inhabitants. Henderson v. Poindexter's Lessee, 12 Wheat. 535; U. S. v. Arredondo, 6 Pet. 712; U. S. v. Ritchie, 17 How. 525.

We adopt the language of Chief Justice Marshall in the case of U. S. v. Percheman, 7 Pet. 51, 86, as follows: "It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign, and assume dominion over the country. The modern usage of nations, which has become law, would be violated, that

sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?"

We are next directed to consider the stipulations of the treaties between the two governments. The provisions of the treaty of 1848 relevant to the present subject are contained in its eighth article (9 Stat. 929), and we find that they declare that "Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, * retaining the property which they possess in said territories. In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected.

The

present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States." And in the ninth section it is further provided that, pending the admission of such territories into the Union of the United States, Mexicans who reside therein "shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction."

The sixth article of the treaty of 1853 (10 Stat. 1035) provides that "no grants of land within the territory ceded by the first article of this treaty bearing date subsequent to the day [twenty-fifth of September] when the minister and subscriber to this treaty on the part of the United States proposed to the government of Mexico to terminate the question of boundary, will be considered valid or be recognized by the United States, nor will any grants previously made be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico."

With such articles contained in the treaties and their meaning submitted to our consideration, we have no difficulty in holding that the question is whether the land in controversy was the property of the claimants before the treaties, and, if so, that its protection is guarantied by the treaties as well as the law of nations.

The next guide prescribed by the act is a regard for "the laws and ordinances of the government from which it [the grant] is alleged to have been derived."

In this part of our inquiry we shall draw our information from a treatise on the Spanish and American land laws, recently published by Matthew G. Reynolds, the United States attorney for the court of private land claims, and which is referred to in the brief filed for the government in the present case. From this we learn that the general constituent congress of Mexico passed on August 18, 1824, a colonization law, providing for the colonization of the territories of the republic; that New Mexico, at the date of the passage of this law, was a territory, and so continued until December 30, 1836, when it became a department.

A code of colonization was adopted on November 21, 1828, which contains regulations for the colonization of the territories, whereby the political chiefs or governors of the territories are authorized to grant the public lands of their respective territories to contractors, families, or private persons, Mexicans or foreigners, who may apply for them, and are directed, when a grant is definitely made, to sign and give a document to serve as a title to the party in interest, it being stated therein that the grant is made in entire conformity with the provisions of the law, in virtue of which the possession shall be given.

A question is raised in the brief for the government whether the courts of the United States can take judicial notice of the laws and regulations of Mexico pertaining to grants made prior to the cession. It was said in Fremont v. U. S., 17 How. 557, referring to a similar question under the treaties with Spain, ceding territories to the United States: "It is proper to remark that the laws of these territories, under which titles were claimed, were never treated by the court as foreign laws, to be decided as a question of fact. It was always held that the court was bound judicially to notice them, as much so as the laws of a state of the Union. In doing this, however, it was undoubtedly often necessary to inquire into official customs and forms and usages."

The same position was asserted in the case of U. S. v. Perot, 98 U. S. 428.

It is, indeed, suggested that the seventh section of the act establishing the court of private land claims, in respect that it provides that "the decree shall in all cases refer to the treaty, law, or ordinance under which such claim is confirmed or rejected," implies a contrary view. We do not so regard that provision, nor do we perceive in any features of the act an intention on the part of congress to restrict the powers of the court recognized by the previous decisions.

We shall now proceed to apply these principles to the facts of the case.

It is conceded by the government's brief that the claimants or their ancestors did come to Cubero in 1833, and were put in

possession of the lands claimed, and have held them ever since. But it is contended that there is no sufficient evidence that the title asserted by the claimants was lawfully and regularly derived from the government of Spain or Mexico, or from any of the states of the republic of Mexico having law. ful authority to make grants of land, as prescribed by section 13 of the act; and it is said that the only title and interest acquired by the claimants was purchased by these settlers from one Francisco Baca, a Navajo Indian.

We have examined the evidence on this point contained in the record, and are of opinion that it warranted 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.

Without undertaking to give the evidence in full, we shall briefly state its principal features.

Penito Baca, a witness on behalf of the claimants, testified that he was 80 years old, and had resided on these lands since the year 1833; that the settlers were put in possession by the government; that Sarricino was governor, who held the government at Santa Fé. He enumerated by name a number of the colonists, and stated that there was in their possession a written grant from the governor, which he had heard read and had seen; that this writing, which was in the custody of Juan Chaves, could not be found after the death of the latter. He also described the boundaries of the grant, and testified that portions of these lands were distributed among the settlers, 25 varas to each, and that the remaining land was given for the common use for the stock of all.

Jose Antonio Duran testified that he was 92 years of age; that he was one of the settlers of the town of Cubero in the year 1833, and had there resided ever since; that their title was a written title, made to them by Francisco Sarricino, the governor. He gave

a description of the boundaries of the land and the names of some of the original settlers of 1833. He stated that Don Juan Chaves and Don Juan Garcia, as commissioners, put them in possession. The witness could read and write Spanish, and he had seen and read the written title*from the

governor, Sarricino. He testified that, when Juan Chaves died, the title paper was missing, and that it was currently reported that one Vicente Margarito Hernandez, who had been his secretary, had carried off the testimonio or official copy of the grant; that since 1833 the settlers and their children have lived upon and cultivated the land. He further stated that, when they applied for the grant from the government, an Indian, named Francisco Baca, was on the