MEXICAN LAND GRANT FRAUDS

SATURDAY, FEBRUARY 26, 1927

UNITED STATES SENATE,

COMMITTEE ON PUBLIC LANDS AND SURVEYS,

Washington, D. C.

The committee met, pursuant to call, at 10.30 o'clock a. m., in the committee room, Capitol, Senator Robert N. Stanfield presiding. Present: Senators Stanfield (chairman), Cameron, Dill, and Nye. Present also: Hon. Edward C. Finney, Assistant Secretary of the Interior; Hon. Bertice M. Parmenter, Assistant Attorney General; Guy Mason, attorney at law, Washington, D. C.; and Williamson S. Summers, attorney at law, Los Angeles, Calif.

The CHAIRMAN. The committee will come to order. Judge Finney and Mr. Parmenter, this meeting was called for the purpose of taking up Senate Resolution 333. The committee has had this under consideration at two or three other meetings, and it was the unanimous conclusion of the committee that they would like to have you gentlemen come before the committee and tell us what you know about the conditions out of which this resolution has grown. We would like to hear from one or the other of you. Which one do you suggest

that we listen to first?

Mr. PARMENTER. Either way that suits the committee.

The CHAIRMAN. I do not know which department it comes through first and which would be the best order.

Assistant Secretary FINNEY. We have had to deal with at least two of these grants recently, and in on case we submitted the matter to the Attorney General for an opinion.

The CHAIRMAN. I think the better way, then, is to listen to you, Judge Finney, if you will proceed.

STATEMENT OF HON. EDWARD C. FINNEY, ASSISTANT SECRETARY OF THE INTERIOR

Mr. FINNEY. The resolution apparently deals with Mexican or Spanish grants, of which there have been a large number in California and some of the other Southern and Southwestern States. Typical of some of them at least have been two cases which have been brought before the Interior Department through the filing, or attempted filing, of homestead applications.

Senator CAMERON. Will you give the committee the names of those two?

Mr. FINNEY. The first one is known as the Rancho de Lomas de Santiago, a tract of land situated near Los Angeles, Calif. It was confirmed by a commission or board of private land claims which

functioned under an act of Congress. I believe this confirmation occurred in 1856. Those commissioners were to pass upon the old Mexican and Spanish grants, and where they found them to be valid. to have a survey of the grant, which survey, when made on the field by metes and bounds and approved, formed the basis of the patent which would be later issued by the Interior Department.

Senator CAMERON. Judge Finney, who appointed or created that commission?

Mr. FINNEY. It was a commission authorized by an old act of Congress.

Senator DILL. What was the date of that-did you say? About when?

Mr. FINNEY. I think it was in 1851, because this particular grant was confirmed in 1856.

Senator DILL. Just how did they proceed? Do you know?
Mr. FINNEY. Of course, I am not very familiar with it.

Senator DILL. I thought perhaps you had looked up the history of it.

Mr. FINNEY. The act of Congress authorized the appointment of a commission, who were to examine into these grants and to hear evidence and if, as I say, they determined that the grant was a sound one in whole or in part they then had the land surveyed in order to get the metes and bounds description.

Senator DILL. I suppose there is no record of their doings and deliberations, or what steps they took, is there?

Mr. FINNEY. I do not think we have in the department any record of their hearings. We have records of their having confirmed this particular grant, for instance, and then, of course, we have the plat and the field notes of the survey which was made pursuant to that, and a copy of the patent issued.

Senator CAMERON. Was there ever a grant to this land in question filed with the commission?

Senator NYE. This Lomas de Santiago grant. What record is there of that?

Mr. FINNEY. There is a record of a survey and a record of confirmation by this board. It has also had consideration by the courts. Senator DILL. I notice here a letter of the Attorney General dated November 11, 1925, which relates particularly to two cases, United States v. Yorba, and the United States v. Flint.

Mr. FINNEY. Yes; United States v. Yorba, 1856-1858, and United States v. Flint, 1875-1878.

Senator DILL. Do you know what the court decided in those cases? Mr. FINNEY. The effect of the decisions was to confirm the grantees or their assignees in their ownership and possession of the lands as we view it. Patents were issued by the Land Department in

1868, 59 years ago.

A very large number of homestead applications were tendered to the local land office in Los Angeles, some 230 in number, covering some 30,000 acres of land. Those were rejected by the register and receiver on the ground that the lands were patented and were no longer lands of the United States, and they had no authority to allow the entries. Appeal was taken-I am speaking now, of course, with reference to this Lomas de Santiago-to the Commissioner of

the General Land Office. The Commissioner of the General Land Office affirmed the action of the register for the following reasons: The tract is embraced in an unrejected Mexican land grant under which claim was timely presented. The land is covered by an outstanding and uncanceled patent in due form issued for the lands, which contains the necessary recitals and is prima facie evidence on its face.

Senator DILL. A patent from whom?

Mr. FINNEY. From the United States to the heirs of Yorba, the grantee. [Reading:]

The Secretary of the Interior has no power to inquire into or determine the validity of the grant.

The issuance of the patent took away from and deprived the Land Department of the power to allow an entry under the application or take any action looking to its allowance. The Secretary of the Interior has not the power to inquire into or determine the validity of a patent for the purpose of annulling it or vacating it by his own order, nor can he ignore its existence. The land can not be restored to or become subject to entry until after a court of competent jurisdiction shall have set aside the decree of the district court affirming the grant, declaring the grant invalid and simply set aside the patent to Yorba. Senator DILL. That refers to Lomas de Santiago?

Mr. FINNEY. Lomas de Santiago; yes. And even if set aside by the court, no application could be presented until the land had been opened to entry.

Senator DILL. Is it the view of the department that these patents are based on the decision of the commission of 1851?

Mr. FINNEY. Yes.

Senator DILL. And that you can not go back of that commission's decisions?

Mr. FINNEY. More than that. We would say that we can not go back of the patent which issued in 1868.

Senator DILL. The patent was issued in 1868, after this case in court?

Mr. FINNEY. Yes; after the finding by the commission and after the case in court the patent issued, which sharply deprives the Interior Department of all jurisdiction over the land.

Senator DILL. But the real basis of the patent is the decision of the commission of 1851?

Mr. FINNEY. Yes.

Senator DILL. And to attack these titles or patents now it would be necessary to go back beyond the commission of 1851 and overturn their decision?

Mr. FINNEY. That is my understanding, that we would have to go back really to whether the original grant was a valid one or not. Öf course, I do not know whether these original grants were valid or invalid, whether they were fraudulent or not.

Senator DILL. But all of these titles have been passed upon by the commission created by Congress in 1851?

Mr. FINNEY. Yes.

Senator DILL. And it decided that these grants were valid?

Mr. FINNEY. Yes; and caused a survey to be made to define the areas, and based on that patent issued.

The CHAIRMAN. Do you know just what power was vested in this commission by Congress at that time?

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Mr. FINNEY. They had absolute power to declare the validity of

the grant.

The CHAIRMAN. Did Congress vest that power in them, or were they only to be advisory?

Mr. FINNEY. I think they were to examine into it, and take evidence, etc., and make a finding, and that finding was later confirmed by the courts.

The CHAIRMAN. And then patent issued?

Mr. FINNEY. Yes; and then patent issued.

Senator CAMERON. Was the question ever decided by the commission whether there was a valid grant or not?

Mr. FINNEY. The inference of implication of Congress, Senator, would be that they found it to be a valid grant.

Senator NYE. Do you know, Judge Finney, how many acres were involved in that grant as agreed upon by the commission? Mr. FINNEY. My recollection is it was 47,000 acres.

Senator NYE. Is that correct, Mr. Summers?

Mr. SUMMERS. No, sir; 17,752.71 acres.

Senator NYE. And that was approved by the commission?

Mr. SUMMERS. Yes, sir; that there was a grant of 17,000 acres. The excess, 29,686 acres, was included under what Mr. Finney found December 4, 1924, was an unauthorized survey made without respect to either the grant or the findings.

Senator NYE. So that we are not necessarily now questioning the title of the Lomas de Santiago ranch, but 17,000 acres of that? Homesteaders have only endeavored to lay claim to and to homestead this acreage in excess of what you claim was the original grant?

Mr. SUMMERS. All of the applications for homesteads were on the 29,000 acres, and that is the acreage that was furnished to the applicants by the Land Department as being public domain.

Mr. MASON. As outside of the reserve.

Mr. FINNEY. I can not quite agree with that statement. I never made any holding that the 29,000 acres were public lands of the United States. If I had held that 29,000 acres were vacant public lands of the United States, these entries might have been allowed. I held that the whole area, a total of 44,000 acres, had been included in a survey and that that survey had formed the basis of a patent and that that acreage was included in an outstanding patent.

Mr. MASON. I did not mean to say, Judge Finney, that you personally had done that. I mean to say that there is in this record, however, a letter from your office that is, the office of the Commissioner of the General Land Office-signed by Mr. Wickham, his own letter

Mr. FINNEY. Assistant commissioner at that time.

Mr. MASON. Assistant Commissioner of the General Land Officea letter dated in 1923, stating that this 29,000 acres is an interstitial base between two grants and is not a part of the Lomas de Santiago grant. It was on that that these applications were filed. It was not said that you had said so.

Mr. FINNEY. Of course that is just Mr. Wickham's letter as an officer of the department

Senator DILL. I want to get your view of that phase of the ques tion. These patents having been granted on the authority of the