Mb. Justice Beowit,
after stating the case, delivered the opinion of the court.
The main question in this case is whether the language of the documents, which make up the testimonio, indicates anything more than the grant of a right to these pueblos to pasture their cattle upon the lands in question — a right somewhat akin to the right of common under the English law, and one which appears to' have been frequently granted under the Spanish law. United States v. Huertas, 8 Pet. 475; United States v. Davenport's Heirs, 15 How. 1.
The words of the several documents set forth in the testi-monio certainly favor this interpretation: Thus, in the petition, there is no application for a grant of vacant land for cultivation and pasturage, as is usual in this class of cases, but a statement that the pueblos " have considered as their pasture ground in the vicinity of their pueblos, a valley commonly called the Holy Ghost Spring," (which, it seems, had been used in some cases as the pasture ground for the horses of the royal garrison,) and that some applicants were desirous of acquiring the same by public grant, "which will cause them very great injury, as they have considerable cattle, sheep, goats and horses for the royal service," and have no other place in which to pasture them. There was no claim of a grant of the lands, such as the other applicants were seeking to acquire, but a request to have them considered as their pasture ground, and as the pasture ground for the horses of the royal garrison. The prayer bears out this construction of the statement of the petition. It asks, not for a grant of the land, but that his excellency will " be pleased to declare said valley to be the legitimate pasture grounds and pastures of the pueblos," directing a designation of their boundaries, etc.
The order of the captain general upon this petition and the report of the chief alcalde are addressed only to the ascertainment of the boundaries, and to the fact whether there was any other prior grantee in possession, and throw but little light upon the granting act.
The final grant or decree, however, states that the captain general granted the aforesaid lands " for pasturing the stock and horses of the aforesaid three pueblos," designating the boundaries, and with the stipulation that in case of necessity the horses of the royal gárrison of Santa Fé might be kept in the valley where they had been accustomed to graze, and decreed that the aforementioned three pueblos ".will hold the same, with legitimate title, under this royal grant, so that they be not molested by any Spanish citizen or citizens, taking their stock thereupon, deeming the'pasturage to be common." The alcalde was further directed to give royal possession of the grant which he certifies in the act of possession that he did by taking by the hand the governors and war captains of the pueblos with their magistrates, and conducting them over the land, and making a livery of seizin by shouting " Long life to the King, our sovereign, (whom may God preserve,) " and casting stones and pulling up grass in sign of possession, " which I gave them and which they received quietly and peaceably without any opposition whatever, under the conditions mentioned in the aforesaid grant," and, subsequently, attesting these formalities with witnesses.
There is nothing in any of these instruments to indicate that the pueblos desired, or that the governor intended to grant anything beyond a common, whereon the inhabitants of the pueblos might pasture their stock in conformity with ancient usage. "When it is considered that the valley was already used as a pasture ground for the horses of the royal garrison, it is to be inferred that the rights of these pueblos were practically the same as those of the royal garrison, and were not intended to involve a conveyance of a fee of the land. It is true that by the common law of England, livery of seizin was only necessary to be made upon the granting of an estate of freehold, either of' inheritance or for life, (2 Bl. Com. 314;) but, under Spanish law,, it seems to have been a feature commonly connected with the delivery of possession of the land, though to what extent is somewhat uncertain.
The granting clause is not in the usual form of a grant of vacant lands to the grantee for cultivation and pasturage upon condition of actual possession for a number of years. ISTor are there any words indicating an intention to pass a fee simple, such as found in some of the Spanish grants, para adquirir legitimo derecho de propiedad y señorío, " in order to acquire legitimate right of property and dominion." These words, propiedad y señorío, carry-the idea of complete ownership, and seem to be practically the same as the words " fee simple " under the common law.
Upon the contrary, the grant in question provides that the grantees " shall hold the same with legitimate right " of possession {para que lo posean con derecho legitimo) " under this royal grant, so that they be not molested by any Spanish citizen taking their stock thereon, deeming the pasture to be common." It would seem to have been the intention of the governor by these words to vest the pueblos simply with the right to the use of the lands without intending to estop himself; or his successors, from making a subsequent disposition of the same by a grant in fee. This construction is also borne out by the fact that within a few years thereafter a grant was made of the entire tract to other parties. As remarked in the opinion of the court below, " it seems quite unreasonable to. suppose that, if this area in controversy had been granted as an estate in fee to the land, the same granting authority would have deliberately granted a portion of the same land to a third party only twelve years after the former grant, repeat a like act in 1815 and afterwards, and that, too, of land situate near the capital, grazed upon by the royal horses of the capital garrison, a,nd the. local alcallle directed in every case to report officially whether the land proposed to be granted was unoccupied, or that the grant would be to the injury of third parties. This grant was prayed solely as a pasturage right; it seems to have been granted for that purpose alone, and it appears that the governor afterwards treated it as such, and disposed of the paramount title to a large part of the land upon the same view."
In the absence of direct testimony it is somewhat difficult to ascertain with precision the laws of Spain with respect to grants of pueblo lands; but in 2 White's New Kecopila-cion, 254, it is stated by Nicholas Garrido, apparently acting for the Duke of Alagon, in a communication addressed to the governor of Florida, that " the concession of a great extent of land for the rearing and pasture of cattle, constitutes no more than the usufruct, of it, for the time agreed upon, but the grantee has not, nor never- had, the most remote right to solicit the proprietorship, for there is no law or regulation upon which to found it, and consequently the land does not go out of the class of public lands, since it is the same as if it were held on rent. Those who have obtained those con-; cessions as recompense for services are in the same class with the others, and can allege no other right, than what is extended to all those who have suffered losses, and faithfully followed the cause of his majesty." From the correspondence, of which this opinion was a part, and which was considered by this court in United States v. Clarke, 8 Pet. 436, 459, it would seem th'at there was a recognition by the governor and civil authorities of Florida of a distinction between absolute grants of land and "allotments of land made for raising cattle, which may not have titles of proprietorship," (2 White, 252,) the latter of which did not vest in the grantee the ownership of the lands; Certainly if a grant in these terms were made in a State in which the common law prevails, it would be treated simply as a license to pasture, terminable at the will of either party. Such information as we are able to obtain regarding the law of Spain favors a like interpretation of this grant.
The evidence of possession in this case was perfectly consistent with the grant, which on its face vested the pueblos with such possession, and besides, the testimony was of such a vague and contradictory character as to throw but little light upon the nature of the occupation.
The case of United States v. Huertas, 8 Pet. 475, relied upon by the petitioners, seems rather to bear against them. It is said by Chief Justice Marshall, in his brief opinion, that the governor in his decree making the concession states his own knowledge of the facts set forth in the petition, namely, the many and great services rendered to the government in an insurrection. He grants the ten thousand acres with the precise condition to use the same for the purpose of raising cattle, "without having the faculty of alienating the said tract without the knowledge of this government "; but, he adds, that on the 20th of July, 1816, three years'after the concession, Governor Coppinger granted a complete title to this land, reciting the decree made by Governor Kindelan, and the boundaries of the land. It was this second grant which evidently fixed the title of the grantee, notwithstanding the limitations of the prior grant.
Upon the whole, we are of opinion that the court below was correct in holding that the grant in question did not vest the title to the land in the petitioners, but was a mere license to use them for pasturage, and that such license, if not revoked by the subsequent grants, was revoked by the treaty of Guadalupe Hidalgo, ceding this entire territory to the United States; Wallis v. Harrison, 4 M. & W. 538; Cook v. Sterns, 11 Mass. 533; Harris v. Gillingham, 6 N. H. 9 ; Cowles v. Kidder, 24 N. H. 364, 379 ; Blaisdell v. Portsmouth, Great Falls &c. Railroad, 51 N. H. 483; Coleman v. Foster, 1 Hurl. & Norm. 37; S. C. 37 E. L. & E. 489; Prince v. Case, 10 Connecticut, 375; and that in the language of § 13 of the act of March 3, 1891, c. 539, 26 Stat. 854, creating the Court of Private Land Claims,, the title to the land in question was not one " lawfully and regularly derived from the government of Spain," or "one that if not then complete and perfect at the date of the acquisition of the territory by the United States, the claimant had a lawful right to make perfect, had the territory not been acquired by the United States."
The decree of the court below is therefore
Affirmed.