U.S.

Supreme Court

Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 543

(1823)

Johnson & Graham's Lessee v. McIntosh

21 U.S. (8 Wheat.) 543

ERROR TO THE DISTRICT

COURT OF ILLINOIS

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

The plaintiffs in this cause claim the land in their declaration mentioned
under two grants purporting to be made, the first in 1773 and the last in
1775, by the chiefs of certain

Page 21 U. S. 572

Indian tribes constituting the Illinois and the Piankeshaw nations, and the
question is whether this title can be recognized in the courts of the United
States?

The facts, as stated in the case agreed, show the authority of the chiefs
who executed this conveyance so far as it could be given by their own
people, and likewise show that the particular tribes for whom these chiefs
acted were in rightful possession of the land they sold. The inquiry,
therefore, is in a great measure confined to the power of Indians to give,

1
and of private individuals to receive, a title which can be sustained in the
courts of this country.

As the right of society to prescribe those rules by which property may be

acquired and preserved is not and cannot be drawn into question, as the
title to lands especially is and must be admitted to depend entirely on the
law of the nation in which they lie, it will be necessary in pursuing this
inquiry to examine not singly those principles of abstract justice which the
Creator of all things has impressed on the mind of his creature man and
which are admitted to regulate in a great degree the rights of civilized
nations, whose perfect independence is acknowledged, but those
principles also which our own government has adopted in the particular
case and given us as the rule for our decision.

On the discovery of this immense continent, the great nations of Europe

were eager to appropriate to themselves so much of it as they could
respectively acquire. Its vast extent offered an

Page 21 U. S. 573

ample field to the ambition and enterprise of all, and the character and
religion of its inhabitants afforded an apology for considering them as a
people over whom the superior genius of Europe might claim an
ascendency. The potentates of the old world found no difficulty in
convincing themselves that they made ample compensation to the
inhabitants of the new by bestowing on them civilization and Christianity
in exchange for unlimited independence. But as they were all in pursuit of
nearly the same object, it was necessary, in order to avoid conflicting
settlements and consequent war with each other, to establish a principle
2
which all should acknowledge as the law by which the right of acquisition,
which they all asserted should be regulated as between themselves. This
principle was that discovery gave title to the government by whose
subjects or by whose authority it was made against all other European
governments, which title might be consummated by possession.

The exclusion of all other Europeans necessarily gave to the nation

making the discovery the sole right of acquiring the soil from the natives
and establishing settlements upon it. It was a right with which no
Europeans could interfere. It was a right which all asserted for
themselves, and to the assertion of which by others all assented.

Those relations which were to exist between the discoverer and the
natives were to be regulated by themselves. The rights thus acquired
being exclusive, no other power could interpose between them.

Page 21 U. S. 574

In the establishment of these relations, the rights of the original

inhabitants were in no instance entirely disregarded, but were necessarily
to a considerable extent impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim to retain
possession of it, and to use it according to their own discretion; but their
rights to complete sovereignty as independent nations were necessarily
diminished, and their power to dispose of the soil at their own will to
whomsoever they pleased was denied by the original fundamental
principle that discovery gave exclusive title to those who made it.

3
While the different nations of Europe respected the right of the natives as
occupants, they asserted the ultimate dominion to be in themselves, and
claimed and exercised, as a consequence of this ultimate dominion, a
power to grant the soil while yet in possession of the natives. These
grants have been understood by all to convey a title to the grantees,
subject only to the Indian right of occupancy.

The history of America from its discovery to the present day proves, we
think, the universal recognition of these principles.

Spain did not rest her title solely on the grant of the Pope. Her
discussions respecting boundary, with France, with Great Britain, and
with the United States all show that she placed in on the rights given by
discovery. Portugal sustained her claim to the Brazils by the same title.

France also founded her title to the vast territories she claimed in
America on discovery. However

Page 21 U. S. 575

conciliatory her conduct to the natives may have been, she still asserted
her right of dominion over a great extent of country not actually settled by
Frenchmen and her exclusive right to acquire and dispose of the soil
which remained in the occupation of Indians. Her monarch claimed all
Canada and Acadie as colonies of France at a time when the French
population was very inconsiderable and the Indians occupied almost the
whole country. He also claimed Louisiana, comprehending the immense
territories watered by the Mississippi and the rivers which empty into it,
by the title of discovery. The letters patent granted to the Sieur Demonts

4
in 1603, constitute him Lieutenant General, and the representative of the
King in Acadie, which is described as stretching from the 40th to the 46th
degree of north latitude, with authority to extend the power of the French
over that country and its inhabitants, to give laws to the people, to treat
with the natives and enforce the observance of treaties, and to parcel out
and give title to lands according to his own judgment.

The states of Holland also made acquisitions in America and sustained

their right on the common principle adopted by all Europe. They allege,
as we are told by Smith in his History of New York, that Henry Hudson,
who sailed, as they say, under the orders of their East India Company,
discovered the country from the Delaware to the Hudson, up which he
sailed to the 43d degree of north latitude, and this country they claimed
under the title acquired by this voyage.

Page 21 U. S. 576

Their first object was commercial, as appears by a grant made to a

company of merchants in 1614, but in 1621 the States General made, as
we are told by Mr. Smith, a grant of the country to the West India
Company by the name of New Netherlands.

The claim of the Dutch was always contested by the English -- not
because they questioned the title given by discovery, but because they
insisted on being themselves the rightful claimants under that title. Their
pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle more
unequivocally than England. The documents upon this subject are ample

5
and complete. So early as the year 1496, her monarch granted a
commission to the Cabots to discover countries then unknown to
Christian people and to take possession of them in the name of the King
of England. Two years afterwards, Cabot proceeded on this voyage and
discovered the continent of North America, along which he sailed as far
south as Virginia. To this discovery the English trace their title.

In this first effort made by the English government to acquire territory on

this continent we perceive a complete recognition of the principle which
has been mentioned. The right of discovery given by this commission is
confined to countries "then unknown to all Christian people," and of these
countries Cabot was empowered to take possession in the name of the
King of England. Thus asserting a right to take possession

Page 21 U. S. 577

notwithstanding the occupancy of the natives, who were heathens, and at

the same time admitting the prior title of any Christian people who may
have made a previous discovery.

The same principle continued to be recognized. The charter granted to

Sir Humphrey Gilbert in 1578 authorizes him to discover and take
possession of such remote, heathen, and barbarous lands as were not
actually possessed by any Christian prince or people. This charter was
afterwards renewed to Sir Walter Raleigh in nearly the same terms.

By the charter of 1606, under which the first permanent English

settlement on this continent was made, James I granted to Sir Thomas
Gates and others those territories in America lying on the seacoast

6
between the 34th and 45th degrees of north latitude and which either
belonged to that monarch or were not then possessed by any other
Christian prince or people. The grantees were divided into two
companies at their own request. The first or southern colony was directed
to settle between the 34th and 41st degrees of north latitude, and the
second or northern colony between the 38th and 45th degrees.

In 1609, after some expensive and not very successful attempts at

settlement had been made, a new and more enlarged charter was given
by the Crown to the first colony, in which the King granted to the
"Treasurer and Company of Adventurers of the City of London for the first
colony in Virginia," in absolute property, the lands extending along the
seacoast four hundred miles, and

Page 21 U. S. 578

into the land throughout from sea to sea. This charter, which is a part of
the special verdict in this cause, was annulled, so far as respected the
rights of the company, by the judgment of the Court of King's Bench on a
writ of quo warranto, but the whole effect allowed to this judgment was to
revest in the Crown the powers of government and the title to the lands
within its limits.

At the solicitation of those who held under the grant to the second or
northern colony, a new and more enlarged charter was granted to the
Duke of Lenox and others in 1620, who were denominated the Plymouth
Company, conveying to them in absolute property all the lands between
the 40th and 48th degrees of north latitude.

7
Under this patent New England has been in a great measure settled. The
company conveyed to Henry Rosewell and others, in 1627, that territory
which is now Massachusetts, and in 1628 a charter of incorporation
comprehending the powers of government was granted to the
purchasers.

Great part of New England was granted by this company, which at length
divided their remaining lands among themselves, and in 1635
surrendered their charter to the Crown. A patent was granted to Gorges
for Maine, which was allotted to him in the division of property.

All the grants made by the Plymouth Company, so far as we can learn,
have been respected. In pursuance of the same principle, the King, in
1664, granted to the Duke of York the country of New England as far
south as the Delaware

Page 21 U. S. 579

Bay. His Royal Highness transferred New Jersey to Lord Berkeley and
Sir George Carteret.

In 1663, the Crown granted to Lord Clarendon and others the country
lying between the 36th degree of north latitude and the River St. Mathes,
and in 1666 the proprietors obtained from the Crown a new charter
granting to them that province in the King's dominions in North America
which lies from 36 degrees 30 minutes north latitude to the 29th degree,
and from the Atlantic ocean to the South sea.

Thus has our whole country been granted by the Crown while in the
occupation of the Indians. These grants purport to convey the soil as well
8
as the right of dominion to the grantees. In those governments which
were denominated royal, where the right to the soil was not vested in
individuals, but remained in the Crown or was vested in the colonial
government, the King claimed and exercised the right of granting lands
and of dismembering the government at his will. The grants made out of
the two original colonies, after the resumption of their charters by the
Crown, are examples of this. The governments of New England, New
York, New Jersey, Pennsylvania, Maryland, and a part of Carolina were
thus created. In all of them, the soil, at the time the grants were made,
was occupied by the Indians. Yet almost every title within those
governments is dependent on these grants. In some instances, the soil
was conveyed by the Crown unaccompanied by the powers of
government, as in the case of the northern neck of Virginia. It has never

Page 21 U. S. 580

been objected to this or to any other similar grant that the title as well as
possession was in the Indians when it was made and that it passed
nothing on that account.

These various patents cannot be considered as nullities, nor can they be

limited to a mere grant of the powers of government. A charter intended
to convey political power only would never contain words expressly
granting the land, the soil, and the waters. Some of them purport to
convey the soil alone, and in those cases in which the powers of
government as well as the soil are conveyed to individuals, the Crown
has always acknowledged itself to be bound by the grant. Though the
power to dismember regal governments was asserted and exercised, the

9
power to dismember proprietary governments was not claimed, and in
some instances, even after the powers of government were revested in
the Crown, the title of the proprietors to the soil was respected.

Charles II was extremely anxious to acquire the property of Maine, but

the grantees sold it to Massachusetts, and he did not venture to contest
the right of that colony to the soil. The Carolinas were originally
proprietary governments. In 1721, a revolution was effected by the
people, who shook off their obedience to the proprietors and declared
their dependence immediately on the Crown. The King, however,
purchased the title of those who were disposed to sell. One of them, Lord
Carteret, surrendered his interest in the government but retained his title
to the soil. That

Page 21 U. S. 581

title was respected till the revolution, when it was forfeited by the laws of
war.

Further proofs of the extent to which this principle has been recognized
will be found in the history of the wars, negotiations, and treaties which
the different nations claiming territory in America have carried on and
held with each other.

The contests between the cabinets of Versailles and Madrid respecting

the territory on the northern coast of the Gulf of Mexico were fierce and
bloody, and continued until the establishment of a Bourbon on the throne
of Spain produced such amicable dispositions in the two Crowns as to
suspend or terminate them.

10
Between France and Great Britain, whose discoveries as well as
settlements were nearly contemporaneous, contests for the country
actually covered by the Indians began as soon as their settlements
approached each other, and were continued until finally settled in the
year 1763 by the Treaty of Paris.

Each nation had granted and partially settled the country, denominated
by the French Acadie, and by the English Nova Scotia. By the 12th article
of the Treaty of Utrecht, made in 1703, his most Christian Majesty ceded
to the Queen of Great Britain "all Nova Scotia or Acadie, with its ancient
boundaries." A great part of the ceded territory was in the possession of
the Indians, and the extent of the cession could not be adjusted by the
commissioners to whom it was to be referred.

The Treaty of Aix la Chapelle, which was made

Page 21 U. S. 582

on the principle of the status ante bellum, did not remove this subject of
controversy. Commissioners for its adjustment were appointed whose
very able and elaborate, though unsuccessful, arguments in favor of the
title of their respective sovereigns show how entirely each relied on the
title given by discovery to lands remaining in the possession of Indians.

After the termination of this fruitless discussion, the subject was

transferred to Europe and taken up by the cabinets of Versailles and
London. This controversy embraced not only the boundaries of New
England, Nova Scotia, and that part of Canada which adjoined those
colonies, but embraced our whole western country also. France

11
contended not only that the St. Lawrence was to be considered as the
center of Canada, but that the Ohio was within that colony. She founded
this claim on discovery and on having used that river for the
transportation of troops in a war with some southern Indians.

This river was comprehended in the chartered limits of Virginia, but

though the right of England to a reasonable extent of country in virtue of
her discovery of the seacoast and of the settlements she made on it, was
not to be questioned, her claim of all the lands to the Pacific Ocean
because she had discovered the country washed by the Atlantic, might,
without derogating from the principle recognized by all, be deemed
extravagant. It interfered, too, with the claims of France founded on the
same principle. She therefore sought to strengthen her original title to

Page 21 U. S. 583

the lands in controversy by insisting that it had been acknowledged by

France in the 15th article of the Treaty of Utrecht. The dispute respecting
the construction of that article has no tendency to impair the principle,
that discovery gave a title to lands still remaining in the possession of the
Indians. Whichever title prevailed, it was still a title to lands occupied by
the Indians, whose right of occupancy neither controverted and neither
had then extinguished.

These conflicting claims produced a long and bloody war which was
terminated by the conquest of the whole country east of the Mississippi.
In the treaty of 1763, France ceded and guaranteed to Great Britain all
Nova Scotia, or Acadie, and Canada, with their dependencies, and it was
agreed that the boundaries between the territories of the two nations in
12
America should be irrevocably fixed by a line drawn from the source of
the Mississippi, through the middle of that river and the lakes Maurepas
and Ponchartrain, to the sea. This treaty expressly cedes, and has
always been understood to cede, the whole country on the English side
of the dividing line between the two nations, although a great and
valuable part of it was occupied by the Indians. Great Britain, on her part,
surrendered to France all her pretensions to the country west of the
Mississippi. It has never been supposed that she surrendered nothing,
although she was not in actual possession of a foot of land. She
surrendered all right to acquired the country, and any after attempt to
purchase it from the Indians would have been considered

Page 21 U. S. 584

and treated as an invasion of the territories of France.

By the 20th article of the same treaty, Spain ceded Florida, with its
dependencies and all the country she claimed east or southeast of the
Mississippi, to Great Britain. Great part of this territory also was in
possession of the Indians.

By a secret treaty which was executed about the same time, France
ceded Louisiana to Spain, and Spain has since retroceded the same
country to France. At the time both of its cession and retrocession, it was
occupied chiefly by the Indians.

Thus all the nations of Europe who have acquired territory on this
continent have asserted in themselves and have recognized in others the

13
exclusive right of the discoverer to appropriate the lands occupied by the
Indians. Have the American states rejected or adopted this principle?

By the treaty which concluded the war of our revolution, Great Britain
relinquished all claim not only to the government, but to the "propriety
and territorial rights of the United States" whose boundaries were fixed in
the second article. By this treaty the powers of government and the right
to soil which had previously been in Great Britain passed definitively to
these states. We had before taken possession of them by declaring
independence, but neither the declaration of independence nor the treaty
confirming it could give us more than that which we before possessed or
to which Great Britain was before entitled. It

Page 21 U. S. 585

has never been doubted that either the United States or the several
states had a clear title to all the lands within the boundary lines described
in the treaty, subject only to the Indian right of occupancy, and that the
exclusive power to extinguish that right was vested in that government
which might constitutionally exercise it.

Virginia, particularly, within whose chartered limits the land in controversy

lay, passed an act in the year 1779 declaring her

"exclusive right of preemption from the Indians of all the lands within the
limits of her own chartered territory, and that no person or persons
whatsoever have or ever had a right to purchase any lands within the
same from any Indian nation except only persons duly authorized to

14
make such purchase, formerly for the use and benefit of the colony and
lately for the Commonwealth."

The act then proceeds to annul all deeds made by Indians to individuals
for the private use of the purchasers.

Without ascribing to this act the power of annulling vested rights or

admitting it to countervail the testimony furnished by the marginal note
opposite to the title of the law forbidding purchases from the Indians in
the revisals of the Virginia statutes stating that law to be repealed, it may
safely be considered as an unequivocal affirmance on the part of Virginia
of the broad principle which had always been maintained that the
exclusive right to purchase from the Indians resided in the government.

In pursuance of the same idea, Virginia proceeded at the same session

to open her

Page 21 U. S. 586

land office for the sale of that country which now constitutes Kentucky, a
country every acre of which was then claimed and possessed by Indians,
who maintained their title with as much persevering courage as was ever
manifested by any people.

The states, having within their chartered limits different portions of

territory covered by Indians, ceded that territory generally to the United
States on conditions expressed in their deeds of cession, which
demonstrate the opinion that they ceded the soil as well as jurisdiction,
and that in doing so they granted a productive fund to the government of
the Union. The lands in controversy lay within the chartered limits of
15
Virginia, and were ceded with the whole country northwest of the River
Ohio. This grant contained reservations and stipulations which could only
be made by the owners of the soil, and concluded with a stipulation that

"all the lands in the ceded territory not reserved should be considered as
a common fund for the use and benefit of such of the United States as
have become or shall become members of the confederation, . . .
according to their usual respective proportions in the general charge and
expenditure, and shall be faithfully and bona fide disposed of for that
purpose, and for no other use or purpose whatsoever."

The ceded territory was occupied by numerous and warlike tribes of

Indians, but the exclusive right of the United States to extinguish their title
and to grant the soil has never, we believe, been doubted.

Page 21 U. S. 587

After these states became independent, a controversy subsisted

between them and Spain respecting boundary. By the treaty of 1795, this
controversy was adjusted and Spain ceded to the United States the
territory in question. This territory, though claimed by both nations, was
chiefly in the actual occupation of Indians.

The magnificent purchase of Louisiana was the purchase from France of

a country almost entirely occupied by numerous tribes of Indians who are
in fact independent. Yet any attempt of others to intrude into that country
would be considered as an aggression which would justify war.

Our late acquisitions from Spain are of the same character, and the
negotiations which preceded those acquisitions recognize and elucidate
16
the principle which has been received as the foundation of all European
title in America.

The United States, then, has unequivocally acceded to that great and
broad rule by which its civilized inhabitants now hold this country. They
hold and assert in themselves the title by which it was acquired. They
maintain, as all others have maintained, that discovery gave an exclusive
right to extinguish the Indian title of occupancy either by purchase or by
conquest, and gave also a right to such a degree of sovereignty as the
circumstances of the people would allow them to exercise.

The power now possessed by the government of the United States to

grant lands, resided, while we were colonies, in the Crown, or its
grantees. The validity of the titles given by either has never

Page 21 U. S. 588

been questioned in our courts. It has been exercised uniformly over

territory in possession of the Indians. The existence of this power must
negative the existence of any right which may conflict with and control it.
An absolute title to lands cannot exist at the same time in different
persons or in different governments. An absolute must be an exclusive
title, or at least a title which excludes all others not compatible with it. All
our institutions recognize the absolute title of the Crown, subject only to
the Indian right of occupancy, and recognize the absolute title of the
Crown to extinguish that right. This is incompatible with an absolute and
complete title in the Indians.

17
We will not enter into the controversy whether agriculturists, merchants,
and manufacturers have a right on abstract principles to expel hunters
from the territory they possess or to contract their limits. Conquest gives
a title which the courts of the conqueror cannot deny, whatever the
private and speculative opinions of individuals may be, respecting the
original justice of the claim which has been successfully asserted. The
British government, which was then our government and whose rights
have passed to the United States, asserted title to all the lands occupied
by Indians within the chartered limits of the British colonies. It asserted
also a limited sovereignty over them and the exclusive right of
extinguishing the title which occupancy gave to them. These claims have
been maintained and established as far west as the River Mississippi by
the sword. The title

Page 21 U. S. 589

to a vast portion of the lands we now hold originates in them. It is not for
the courts of this country to question the validity of this title or to sustain
one which is incompatible with it.

Although we do not mean to engage in the defense of those principles

which Europeans have applied to Indian title, they may, we think, find
some excuse, if not justification, in the character and habits of the people
whose rights have been wrested from them.

The title by conquest is acquired and maintained by force. The conqueror

prescribes its limits. Humanity, however, acting on public opinion, has
established, as a general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as eligible as is
18
compatible with the objects of the conquest. Most usually, they are
incorporated with the victorious nation, and become subjects or citizens
of the government with which they are connected. The new and old
members of the society mingle with each other; the distinction between
them is gradually lost, and they make one people. Where this
incorporation is practicable, humanity demands and a wise policy
requires that the rights of the conquered to property should remain
unimpaired; that the new subjects should be governed as equitably as
the old, and that confidence in their security should gradually banish the
painful sense of being separated from their ancient connections, and
united by force to strangers.

When the conquest is complete and the conquered inhabitants can be

blended with the conquerors

Page 21 U. S. 590

or safely governed as a distinct people, public opinion, which not even

the conqueror can disregard, imposes these restraints upon him, and he
cannot neglect them without injury to his fame and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages
whose occupation was war and whose subsistence was drawn chiefly
from the forest. To leave them in possession of their country was to leave
the country a wilderness; to govern them as a distinct people was
impossible because they were as brave and as high spirited as they were
fierce, and were ready to repel by arms every attempt on their
independence.

19
What was the inevitable consequence of this state of things? The
Europeans were under the necessity either of abandoning the country
and relinquishing their pompous claims to it or of enforcing those claims
by the sword, and by the adoption of principles adapted to the condition
of a people with whom it was impossible to mix and who could not be
governed as a distinct society, or of remaining in their neighborhood, and
exposing themselves and their families to the perpetual hazard of being
massacred.

Frequent and bloody wars, in which the whites were not always the
aggressors, unavoidably ensued. European policy, numbers, and skill
prevailed. As the white population advanced, that of the Indians
necessarily receded. The country in the immediate neighborhood of
agriculturists became unfit for them. The game fled

Page 21 U. S. 591

into thicker and more unbroken forests, and the Indians followed. The soil
to which the Crown originally claimed title, being no longer occupied by
its ancient inhabitants, was parceled out according to the will of the
sovereign power and taken possession of by persons who claimed
immediately from the Crown or mediately through its grantees or
deputies.

That law which regulates and ought to regulate in general the relations
between the conqueror and conquered was incapable of application to a
people under such circumstances. The resort to some new and different
rule better adapted to the actual state of things was unavoidable. Every

20
rule which can be suggested will be found to be attended with great
difficulty.

However extravagant the pretension of converting the discovery of an

inhabited country into conquest may appear; if the principle has been
asserted in the first instance, and afterwards sustained; if a country has
been acquired and held under it; if the property of the great mass of the
community originates in it, it becomes the law of the land and cannot be
questioned. So, too, with respect to the concomitant principle that the
Indian inhabitants are to be considered merely as occupants, to be
protected, indeed, while in peace, in the possession of their lands, but to
be deemed incapable of transferring the absolute title to others. However
this restriction may be opposed to natural right, and to the usages of
civilized nations, yet if it be indispensable to that system under which the
country has been settled, and be

Page 21 U. S. 592

adapted to the actual condition of the two people, it may perhaps be

supported by reason, and certainly cannot be rejected by courts of
justice.

This question is not entirely new in this Court. The case of Fletcher v.
Peck grew out of a sale made by the State of Georgia of a large tract of
country within the limits of that state, the grant of which was afterwards
resumed. The action was brought by a subpurchaser on the contract of
sale, and one of the covenants in the deed was that the State of Georgia
was, at the time of sale, seized in fee of the premises. The real question
presented by the issue was whether the seizin in fee was in the State of
21
Georgia or in the United States. After stating that this controversy
between the several states and the United States had been
compromised, the court thought in necessary to notice the Indian title,
which, although entitled to the respect of all courts until it should be
legitimately extinguished, was declared not to be such as to be
absolutely repugnant to a seizin in fee on the part of the state.

This opinion conforms precisely to the principle which has been

supposed to be recognized by all European governments from the first
settlement of America. The absolute ultimate title has been considered
as acquired by discovery, subject only to the Indian title of occupancy,
which title the discoverers possessed the exclusive right of acquiring.
Such a right is no more incompatible with a seizin in fee than a lease for
years, and might as effectually bar an ejectment.

Another view has been taken of this question

Page 21 U. S. 593

which deserves to be considered. The title of the Crown, whatever it

might be, could be acquired only by a conveyance from the Crown. If an
individual might extinguish the Indian title for his own benefit, or in other
words might purchase it, still he could acquire only that title. Admitting
their power to change their laws or usages so far as to allow an individual
to separate a portion of their lands from the common stock and hold it in
severalty, still it is a part of their territory and is held under them by a title
dependent on their laws. The grant derives its efficacy from their will, and
if they choose to resume it and make a different disposition of the land,
the courts of the United States cannot interpose for the protection of the
22
title. The person who purchases lands from the Indians within their
territory incorporates himself with them so far as respects the property
purchased; holds their title under their protection and subject to their
laws. If they annul the grant, we know of no tribunal which can revise and
set aside the proceeding. We know of no principle which can distinguish
this case from a grant made to a native Indian, authorizing him to hold a
particular tract of land in severalty.

As such a grant could not separate the Indian from his nation, nor give a
title which our courts could distinguish from the title of his tribe, as it
might still be conquered from, or ceded by his tribe, we can perceive no
legal principle which will authorize a court to say that different
consequences are attached to this purchase because it was made by a
stranger. By the treaties concluded

Page 21 U. S. 594

between the United States and the Indian nations whose title the plaintiffs
claim, the country comprehending the lands in controversy has been
ceded to the United States without any reservation of their title. These
nations had been at war with the United States, and had an
unquestionable right to annul any grant they had made to American
citizens. Their cession of the country without a reservation of this land
affords a fair presumption that they considered it as of no validity. They
ceded to the United States this very property, after having used it in
common with other lands as their own, from the date of their deeds to the
time of cession, and the attempt now made, is to set up their title against
that of the United States.

23
The proclamation issued by the King of Great Britain in 1763 has been
considered, and we think with reason, as constituting an additional
objection to the title of the plaintiffs.

By that proclamation, the Crown reserved under its own dominion and
protection, for the use of the Indians, "all the land and territories lying to
the westward of the sources of the rivers which fall into the sea from the
west and northwest," and strictly forbade all British subjects from making
any purchases or settlements whatever or taking possession of the
reserved lands.

It has been contended that in this proclamation, the King transcended his
constitutional powers, and the case of Campbell v. Hall, reported by
Cowper, is relied on to support this position.

Page 21 U. S. 595

It is supposed to be a principle of universal law that if an uninhabited

country be discovered by a number of individuals who acknowledge no
connection with and owe no allegiance to any government whatever, the
country becomes the property of the discoverers, so far at least as they
can use it. They acquire a title in common. The title of the whole land is in
the whole society. It is to be divided and parceled out according to the
will of the society, expressed by the whole body or by that organ which is
authorized by the whole to express it.

If the discovery be made and possession of the country be taken under

the authority of an existing government, which is acknowledged by the
emigrants, it is supposed to be equally well settled, that the discovery is

24
made for the whole nation, that the country becomes a part of the nation,
and that the vacant soil is to be disposed of by that organ of the
government which has the constitutional power to dispose of the national
domains, by that organ in which all vacant territory is vested by law.

According to the theory of the British Constitution, all vacant lands are
vested in the Crown, as representing the nation, and the exclusive power
to grant them is admitted to reside in the Crown as a branch of the royal
prerogative. It has been already shown that this principle was as fully
recognized in America as in the Island of Great Britain. All the lands we
hold were originally granted by the Crown, and the establishment of a
regal government has never been considered as

Page 21 U. S. 596

impairing its right to grant lands within the chartered limits of such colony.
In addition to the proof of this principle, furnished by the immense grants
already mentioned of lands lying within the chartered limits of Virginia,
the continuing right of the Crown to grant lands lying within that colony
was always admitted. A title might be obtained either by making an entry
with the surveyor of a county in pursuance of law or by an order of the
governor in council, who was the deputy of the King, or by an immediate
grant from the Crown. In Virginia, therefore, as well as elsewhere in the
British dominions, the complete title of the Crown to vacant lands was
acknowledged.

So far as respected the authority of the Crown, no distinction was taken

between vacant lands and lands occupied by the Indians. The title,
subject only to the right of occupancy by the Indians, was admitted to be
25
in the King, as was his right to grant that title. The lands, then, to which
this proclamation referred were lands which the King had a right to grant,
or to reserve for the Indians.

According to the theory of the British Constitution, the royal prerogative is

very extensive so far as respects the political relations between Great
Britain and foreign nations. The peculiar situation of the Indians,
necessarily considered in some respects as a dependent and in some
respects as a distinct people occupying a country claimed by Great
Britain, and yet too powerful and brave not to be dreaded as formidable
enemies, required that means should be adopted for

Page 21 U. S. 597

the preservation of peace, and that their friendship should be secured by

quieting their alarms for their property. This was to be effected by
restraining the encroachments of the whites, and the power to do this
was never, we believe, denied by the colonies to the Crown.

In the case of Campbell v. Hall, that part of the proclamation was

determined to be illegal, which imposed a tax on a conquered province,
after a government had been bestowed upon it. The correctness of this
decision cannot be questioned, but its application to the case at bar
cannot be admitted. Since the expulsion of the Stuart family, the power of
imposing taxes by proclamation has never been claimed as a branch of
regal prerogative, but the powers of granting, or refusing to grant, vacant
lands, and of restraining encroachments on the Indians have always
been asserted and admitted.

26
The authority of this proclamation, so far as it respected this continent,
has never been denied, and the titles it gave to lands have always been
sustained in our courts.

In the argument of this cause, the counsel for the plaintiffs have relied
very much on the opinions expressed by men holding offices of trust, and
on various proceedings in America to sustain titles to land derived from
the Indians.

The collection of claims to lands lying in the western country made in the
1st volume of the Laws of the United States has been referred to, but we
find nothing in that collection to support the argument. Most of the titles
were derived

Page 21 U. S. 598

from persons professing to act under the authority of the government

existing at the time, and the two grants under which the plaintiffs claim
are supposed by the person under whose inspection the collection was
made to be void, because forbidden by the royal proclamation of 1763. It
is not unworthy of remark that the usual mode adopted by the Indians for
granting lands to individuals has been to reserve them in a treaty or to
grant them under the sanction of the commissioners with whom the treaty
was negotiated. The practice in such case to grant to the Crown for the
use of the individual is some evidence of a general understanding that
the validity even of such a grant depended on its receiving the royal
sanction.

27
The controversy between the Colony of Connecticut and the Mohegan
Indians depended on the nature and extent of a grant made by those
Indians to the colony; on the nature and extent of the reservations made
by the Indians, in their several deeds and treaties, which were alleged to
be recognized by the legitimate authority; and on the violation by the
colony of rights thus reserved and secured. We do not perceive in that
case any assertion of the principle that individuals might obtain a
complete and valid title from the Indians.

It has been stated that in the memorial transmitted from the Cabinet of
London to that of Versailles, during the controversy between the two
nations respecting boundary which took place in 1755, the Indian right to
the soil is recognized.

Page 21 U. S. 599

But this recognition was made with reference to their character as

Indians and for the purpose of showing that they were fixed to a
particular territory. It was made for the purpose of sustaining the claim of
His Britannic Majesty to dominion over them.

The opinion of the Attorney and Solicitor General, Pratt and Yorke, have
been adduced to prove that in the opinion of those great law officers, the
Indian grant could convey a title to the soil without a patent emanating
from the Crown. The opinion of those persons would certainly be of great
authority on such a question, and we were not a little surprised when it
was read, at the doctrine it seemed to advance. An opinion so contrary to
the whole practice of the Crown and to the uniform opinions given on all
other occasions by its great law officers ought to be very explicit and
28
accompanied by the circumstances under which it was given, and to
which it was applied before we can be assured that it is properly
understood. In a pamphlet written for the purpose of asserting the Indian
title, styled "Plain Facts," the same opinion is quoted, and is said to relate
to purchases made in the East Indies. It is, of course, entirely
inapplicable to purchases made in America. Chalmers, in whose
collection this opinion is found, does not say to whom it applies, but there
is reason to believe that the author of Plain Facts is, in this respect,
correct. The opinion commences thus:

"In respect to such places as have been or shall be acquired by treaty or

grant from any of the Indian princes or governments,

Page 21 U. S. 600

your Majesty's letters patent are not necessary."

The words "princes or governments" are usually applied to the East

Indians, but not to those of North America. We speak of their sachems,
their warriors, their chiefmen, their nations or tribes, not of their "princes
or governments." The question on which the opinion was given, too, and
to which it relates, was whether the King's subjects carry with them the
common law wherever they may form settlements. The opinion is given
with a view to this point, and its object must be kept in mind while
construing its expressions.

Much reliance is also placed on the fact, that many tracts are now held in
the United States under the Indian title, the validity of which is not
questioned.

29
Before the importance attached to this fact is conceded, the
circumstances under which such grants were obtained, and such titles
are supported, ought to be considered. These lands lie chiefly in the
eastern states. It is known that the Plymouth Company made many
extensive grants which, from their ignorance of the country, interfered
with each other. It is also known that Mason to whom New Hampshire,
and Gorges, to whom Maine was granted, found great difficulty in
managing such unwieldy property. The country was settled by emigrants,
some from Europe, but chiefly from Massachusetts, who took possession
of lands they found unoccupied, and secured themselves in that
possession by the best means in their power. The disturbances in

Page 21 U. S. 601

England, and the civil war and revolution which followed those
disturbances, prevented any interference on the part of the mother
country, and the proprietors were unable to maintain their title. In the
meantime, Massachusetts claimed the country and governed it. As her
claim was adversary to that of the proprietors, she encouraged the
settlement of persons made under her authority, and encouraged
likewise their securing themselves in possession, by purchasing the
acquiescence and forbearance of the Indians. After the restoration of
Charles II, Gorges and Mason, when they attempted to establish their
title, found themselves opposed by men who held under Massachusetts
and under the Indians. The title of the proprietors was resisted, and
though in some cases compromises were made and in some, the opinion
of a court was given ultimately in their favor, the juries found uniformly
against them. They became wearied with the struggle, and sold their
30
property. The titles held under the Indians were sanctioned by length of
possession, but there is no case, so far as we are informed, of a judicial
decision in their favor.

Much reliance has also been placed on a recital contained in the charter
of Rhode Island, and on a letter addressed to the governors of the
neighboring colonies, by the King's command, in which some
expressions are inserted, indicating the royal approbation of titles
acquired from the Indians.

The charter to Rhode Island recites

"That the said John Clark and others had transplanted

Page 21 U. S. 602

themselves into the midst of the Indian nations, and were seized and
possessed, by purchase and consent of the said natives, to their full
content, of such lands,"

&c. And the letter recites, that

"Thomas Chifflinch and others, having, in the right of Major Asperton, a

just propriety in the Narraghanset Country, in New England, by grants
from the native princes of that country, and being desirous to improve it
into an English colony, . . . are yet daily disturbed."

The impression this language might make, if viewed apart from the
circumstances under which it was employed, will be effaced, when
considered in connection with those circumstances.

31
In the year 1635, the Plymouth Company surrendered their charter to the
Crown. About the same time, the religious dissentions of Massachusetts
expelled from that colony several societies of individuals, one of which
settled in Rhode Island, on lands purchased from the Indians. They were
not within the chartered limits of Massachusetts, and the English
government was too much occupied at home to bestow its attention on
this subject. There existed no authority to arrest their settlement of the
country. If they obtained the Indian title, there were none to assert the
title of the Crown. Under these circumstances, the settlement became
considerable. Individuals acquired separate property in lands which they
cultivated and improved; a government was established among
themselves, and no power existed in America which could rightfully
interfere with it.

On the restoration of Charles II, this small society

Page 21 U. S. 603

hastened to acknowledge his authority, and to solicit his confirmation of

their title to the soil, and to jurisdiction over the country. Their solicitations
were successful, and a charter was granted to them, containing the
recital which has been mentioned.

It is obvious that this transaction can amount to no acknowledgment that

the Indian grant could convey a title paramount to that of the Crown, or
could in itself constitute a complete title. On the contrary, the charter of
the Crown was considered as indispensable to its completion.

32
It has never been contended that the Indian title amounted to nothing.
Their right of possession has never been questioned. The claim of
government extends to the complete ultimate title, charged with this right
of possession and to the exclusive power of acquiring that right. The
object of the Crown was to settle the seacoast of America, and when a
portion of it was settled, without violating the rights of others, by persons
professing their loyalty, and soliciting the royal sanction of an act, the
consequences of which were ascertained to be beneficial, it would have
been as unwise as ungracious to expel them from their habitations,
because they had obtained the Indian title otherwise than through the
agency of government. The very grant of a charter is an assertion of the
title of the Crown, and its words convey the same idea. The country
granted is said to be "our island called Rhode Island," and the charter
contains an actual grant of the soil as well as of the powers of
government.

Page 21 U. S. 604

The letter was written a few months before the charter was issued,
apparently at the request of the agents of the intended colony, for the
sole purpose of preventing the trespasses of neighbors, who were
disposed to claim some authority over them. The King, being willing
himself to ratify and confirm their title was, of course, inclined to quiet
them in their possession.

This charter and this letter certainly sanction a previous unauthorized

purchase from Indians under the circumstances attending that particular
purchase, but are far from supporting the general proposition, that a title

33
acquired from the Indians would be valid against a title acquired from the
Crown, or without the confirmation of the Crown.

The acts of the several colonial assemblies prohibiting purchases from

the Indians have also been relied on as proving that, independent of such
prohibitions, Indian deeds would be valid. But we think this fact, at most,
equivocal. While the existence of such purchases would justify their
prohibition, even by colonies which considered Indian deeds as
previously invalid, the fact that such acts have been generally passed, is
strong evidence of the general opinion, that such purchases are opposed
by the soundest principles of wisdom and national policy.

After bestowing on this subject a degree of attention which was more

required by the magnitude of the interest in litigation, and the able and
elaborate arguments of the bar, than by its intrinsic difficulty, the court is
decidedly of opinion, that the plaintiffs do not exhibit a title which can

Page 21 U. S. 605

be sustained in the courts of the United States, and that there is no error
in the judgment which was rendered against them in the District Court of
Illinois.

Judgment affirmed with costs.

34
U.S. Supreme Court

Cariño v. Insular Government, 212 U.S. 449 (1909)

Cariño v. Insular Government of the Philippine Islands

Page 212 U. S. 455

MR. JUSTICE HOLMES delivered the opinion of the Court.

This was an application to the Philippine Court of Land Registration for

the registration of certain land. The application was granted by the court
on March 4, 1904. An appeal was taken to the Court of First Instance of
the Province of Benguet on behalf of the government of the Philippines,
and also on behalf of the United States, those governments having taken
possession of the property for public and military purposes. The Court of
First Instance found the facts and dismissed the application upon
grounds of law. This judgment was affirmed by the supreme court, 7 Phil.
132, and the case then was brought here by writ of error.

The material facts found are very few. The applicant and plaintiff in error
is an Igorot of the Province of Benguet, where the land lies. For more
than fifty years before the Treaty of

Page 212 U. S. 456

Paris, April 11, 1899, as far back as the findings go, the plaintiff and his
ancestors had held the land as owners. His grandfather had lived upon it,
and had maintained fences sufficient for the holding of cattle, according
to the custom of the country, some of the fences, it seems, having been

35
of much earlier date. His father had cultivated parts and had used parts
for pasturing cattle, and he had used it for pasture in his turn. They all
had been recognized as owners by the Igorots, and he had inherited or
received the land from his father in accordance with Igorot custom. No
document of title, however, had issued from the Spanish Crown, and
although, in 1893-1894 and again in 1896-1897, he made application for
one under the royal decrees then in force, nothing seems to have come
of it, unless, perhaps, information that lands in Benguet could not be
conceded until those to be occupied for a sanatorium, etc., had been
designated -- a purpose that has been carried out by the Philippine
government and the United States. In 1901, the plaintiff filed a petition,
alleging ownership, under the mortgage law, and the lands were
registered to him, that process, however, establishing only a possessory
title, it is said.

Before we deal with the merits, we must dispose of a technical point. The
government has spent some energy in maintaining that this case should
have been brought up by appeal, and not by writ of error. We are of
opinion, however, that the mode adopted was right. The proceeding for
registration is likened to bills in equity to quiet title, but it is different in
principle. It is a proceeding in rem under a statute of the type of the
Torrens Act, such as was discussed in Tyler v. Court of Registration, 175
Mass. 71. It is nearer to law than to equity, and is an assertion of legal
title; but we think it unnecessary to put it into either pigeon hole. A writ of
error is the general method of bringing cases to this Court, an appeal the
exception, confined to equity in the main. There is no reason for not
applying the general rule to this case. Ormsby v. Webb, 134 U. S.

36
47, 134 U. S. 65; Campbell v. Porter, 162 U. S. 478; Metropolitan R. Co.
v. District of Columbia, 195 U. S. 322.

Page 212 U. S. 457

Another preliminary matter may as well be disposed of here. It is

suggested that, even if the applicant have title, he cannot have it
registered, because the Philippine Commission's Act No. 926, of 1903,
excepts the Province of Benguet among others from its operation. But
that act deals with the acquisition of new titles by homestead entries,
purchase, etc., and the perfecting of titles begun under the Spanish law.
The applicant's claim is that he now owns the land, and is entitled to
registration under the Philippine Commission's Act No. 496, of 1902,
which established a court for that purpose with jurisdiction "throughout
the Philippine Archipelago," § 2, and authorized in general terms
applications to be made by persons claiming to own the legal estate in
fee simple, as the applicant does. He is entitled to registration if his claim
of ownership can be maintained.

We come, then, to the question on which the case was decided below --
namely, whether the plaintiff owns the land. The position of the
government, shortly stated, is that Spain assumed, asserted, and had
title to all the land in the Philippines except so far as it saw fit to permit
private titles to be acquired; that there was no prescription against the
Crown, and that, if there was, a decree of June 25, 1880, required
registration within a limited time to make the title good; that the plaintiff's
land was not registered, and therefore became, if it was not always,
public land; that the United States succeeded to the title of Spain, and so

37
that the plaintiff has no rights that the Philippine government is bound to
respect.

If we suppose for the moment that the government's contention is so far

correct that the Crown of Spain in form asserted a title to this land at the
date of the Treaty of Paris, to which the United States succeeded, it is
not to be assumed without argument that the plaintiff's case is at an end.
It is true that Spain, in its earlier decrees, embodied the universal feudal
theory that all lands were held from the Crown, and perhaps the general
attitude of conquering nations toward people not recognized as entitled to
the treatment accorded to those

Page 212 U. S. 458

in the same zone of civilization with themselves. It is true also that, in

legal theory, sovereignty is absolute, and that, as against foreign nations,
the United States may assert, as Spain asserted, absolute power. But it
does not follow that, as against the inhabitants of the Philippines, the
United States asserts that Spain had such power. When theory is left on
one side, sovereignty is a question of strength, and may vary in degree.
How far a new sovereign shall insist upon the theoretical relation of the
subjects to the head in the past, and how far it shall recognize actual
facts, are matters for it to decide.

The Province of Benguet was inhabited by a tribe that the Solicitor

General, in his argument, characterized as a savage tribe that never was
brought under the civil or military government of the Spanish Crown. It
seems probable, if not certain, that the Spanish officials would not have
granted to anyone in that province the registration to which formerly the
38
plaintiff was entitled by the Spanish laws, and which would have made
his title beyond question good. Whatever may have been the technical
position of Spain, it does not follow that, in the view of the United States,
he had lost all rights and was a mere trespasser when the present
government seized his land. The argument to that effect seems to
amount to a denial of native titles throughout an important part of the
island of Luzon, at least, for the want of ceremonies which the Spaniards
would not have permitted and had not the power to enforce.

The acquisition of the Philippines was not like the settlement of the white
race in the United States. Whatever consideration may have been shown
to the North American Indians, the dominant purpose of the whites in
America was to occupy the land. It is obvious that, however stated, the
reason for our taking over the Philippines was different. No one, we
suppose, would deny that, so far as consistent with paramount
necessities, our first object in the internal administration of the islands is
to do justice to the natives, not to exploit their country for private gain. By
the Organic Act of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the
property and rights acquired there by the

Page 212 U. S. 459

United States are to be administered "for the benefit of the inhabitants

thereof." It is reasonable to suppose that the attitude thus assumed by
the United States with regard to what was unquestionably its own is also
its attitude in deciding what it will claim for its own. The same statute
made a bill of rights, embodying the safeguards of the Constitution, and,
like the Constitution, extends those safeguards to all. It provides that

39
"no law shall be enacted in said islands which shall deprive any person of
life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws."

§ 5. In the light of the declaration that we have quoted from § 12, it is

hard to believe that the United States was ready to declare in the next
breath that "any person" did not embrace the inhabitants of Benguet, or
that it meant by "property" only that which had become such by
ceremonies of which presumably a large part of the inhabitants never
had heard, and that it proposed to treat as public land what they, by
native custom and by long association -- one of the profoundest factors in
human thought -- regarded as their own.

It is true that, by § 14, the government of the Philippines is empowered to

enact rules and prescribe terms for perfecting titles to public lands where
some, but not all, Spanish conditions had been fulfilled, and to issue
patents to natives for not more than sixteen hectares of public lands
actually occupied by the native or his ancestors before August 13, 1898.
But this section perhaps might be satisfied if confined to cases where the
occupation was of land admitted to be public land, and had not continued
for such a length of time and under such circumstances as to give rise to
the understanding that the occupants were owners at that date. We
hesitate to suppose that it was intended to declare every native who had
not a paper title a trespasser, and to set the claims of all the wilder tribes
afloat. It is true again that there is excepted from the provision that we
have quoted as to the administration of the property and rights acquired
by the United States such land and property as shall be designated by
the President for military or other reservations,
40
Page 212 U. S. 460

as this land since has been. But there still remains the question what
property and rights the United States asserted itself to have acquired.

Whatever the law upon these points may be, and we mean to go no
further than the necessities of decision demand, every presumption is
and ought to be against the government in a case like the present. It
might, perhaps, be proper and sufficient to say that when, as far back as
testimony or memory goes, the land has been held by individuals under a
claim of private ownership, it will be presumed to have been held in the
same way from before the Spanish conquest, and never to have been
public land. Certainly, in a case like this, if there is doubt or ambiguity in
the Spanish law, we ought to give the applicant the benefit of the doubt.
Whether justice to the natives and the import of the organic act ought not
to carry us beyond a subtle examination of ancient texts, or perhaps even
beyond the attitude of Spanish law, humane though it was, it is
unnecessary to decide. If, in a tacit way, it was assumed that the wild
tribes of the Philippines were to be dealt with as the power and inclination
of the conqueror might dictate, Congress has not yet sanctioned the
same course as the proper one "for the benefit of the inhabitants
thereof."

If the applicant's case is to be tried by the law of Spain, we do not

discover such clear proof that it was bad by that law as to satisfy us that
he does not own the land. To begin with, the older decrees and laws
cited by the counsel for the plaintiff in error seem to indicate pretty clearly
that the natives were recognized as owning some lands, irrespective of

41
any royal grant. In other words, Spain did not assume to convert all the
native inhabitants of the Philippines into trespassers, or even into tenants
at will. For instance, Book 4, Title 12, Law 14 of the Recopilacion de
Leyes de las Indias, cited for a contrary conclusion in Valenton v.
Murciano, 3 Phil. 537, while it commands viceroys and others, when it
seems proper, to call for the exhibition of grants, directs them to confirm
those who hold by good grants or justa prescripcion. It is true that it

Page 212 U. S. 461

begins by the characteristic assertion of feudal overlordship and the

origin of all titles in the King or his predecessors. That was theory and
discourse. The fact was that titles were admitted to exist that owed
nothing to the powers of Spain beyond this recognition in their books.

Prescription is mentioned again in the royal cedula of October 15, 1754,

cited in 3 Phil. 546:

"Where such possessors shall not be able to produce title deeds, it shall
be sufficient if they shall show that ancient possession, as a valid title by
prescription."

It may be that this means possession from before 1700; but, at all events,
the principle is admitted. As prescription, even against Crown lands, was
recognized by the laws of Spain, we see no sufficient reason for
hesitating to admit that it was recognized in the Philippines in regard to
lands over which Spain had only a paper sovereignty.

The question comes, however, on the decree of June 25, 1880, for the
adjustment of royal lands wrongfully occupied by private individuals in the
42
Philippine Islands. This begins with the usual theoretic assertion that, for
private ownership, there must have been a grant by competent authority;
but instantly descends to fact by providing that, for all legal effects, those
who have been in possession for certain times shall be deemed owners.
For cultivated land, twenty years, uninterrupted, is enough. For
uncultivated, thirty. Art. 5. So that, when this decree went into effect, the
applicant's father was owner of the land by the very terms of the decree.
But, it is said, the object of this law was to require the adjustment or
registration proceedings that it described, and in that way to require
everyone to get a document of title or lose his land. That purpose may
have been entertained, but it does not appear clearly to have been
applicable to all. The regulations purport to have been made "for the
adjustment of royal lands wrongfully occupied by private individuals." (We
follow the translation in the government's brief.) It does not appear that
this land ever was royal land or wrongfully occupied. In Article 6, it is
provided that

"interested parties not included within the two preceding

Page 212 U. S. 462

articles [the articles recognizing prescription of twenty and thirty years]

may legalize their possession, and thereby acquire the full ownership of
the said lands, by means of adjustment proceedings, to be conducted in
the following manner."

This seems, by its very terms, not to apply to those declared already to
be owners by lapse of time. Article 8 provides for the case of parties not
asking an adjustment of the lands of which they are unlawfully enjoying
43
the possession, within one year, and threatens that the treasury "will
reassert the ownership of the state over the lands," and will sell at
auction such part as it does not reserve. The applicant's possession was
not unlawful, and no attempt at any such proceedings against him or his
father ever was made. Finally, it should be noted that the natural
construction of the decree is confirmed by the report of the council of
state. That report puts forward as a reason for the regulations that, in
view of the condition of almost all property in the Philippines, it is
important to fix its status by general rules on the principle that the lapse
of a fixed period legalizes completely all possession, recommends in two
articles twenty and thirty years, as adopted in the decree, and then
suggests that interested parties not included in those articles may
legalize their possession and acquire ownership by adjustment at a
certain price.

It is true that the language of Articles 4 and 5 attributes title to those "who
may prove" possession for the necessary time, and we do not overlook
the argument that this means may prove in registration proceedings. It
may be that an English conveyancer would have recommended an
application under the foregoing decree, but certainly it was not calculated
to convey to the mind of an Igorot chief the notion that ancient family
possessions were in danger, if he had read every word of it. The words
"may prove" (acrediten), as well, or better, in view of the other provisions,
might be taken to mean when called upon to do so in any litigation. There
are indications that registration was expected from all, but none sufficient
to show that, for want of it, ownership actually gained would be lost.

Page 212 U. S. 463

44
The effect of the proof, wherever made, was not to confer title, but simply
to establish it, as already conferred by the decree, if not by earlier law.
The royal decree of February 13, 1894, declaring forfeited titles that were
capable of adjustment under the decree of 1880, for which adjustment
had not been sought, should not be construed as a confiscation, but as
the withdrawal of a privilege. As a matter of fact, the applicant never was
disturbed. This same decree is quoted by the Court of Land Registration
for another recognition of the common law prescription of thirty years as
still running against alienable Crown land.

It will be perceived that the rights of the applicant under the Spanish law
present a problem not without difficulties for courts of a different legal
tradition. We have deemed it proper on that account to notice the
possible effect of the change of sovereignty and the act of Congress
establishing the fundamental principles now to be observed. Upon a
consideration of the whole case, we are of opinion that law and justice
require that the applicant should be granted what he seeks, and should
not be deprived of what, by the practice and belief of those among whom
he lived, was his property, through a refined interpretation of an almost
forgotten law of Spain.

Judgment reversed.

45
G.R. No. L-2506 April 16, 1906

F. STEWART JONES, plaintiff-appellee,

vs.
THE INSULAR GOVERNMENT, defendant-appellant.

Office of the Solicitor-General, for appellant.

Pillsbury and Sutro, for appellee.

WILLARD, J.:

On the 16th day of January, 1904 F. Stewart Jones presented a petition

to the Court of Land Registration asking that he be inscribed as the
owner of a certain tract of land situatd in the Province of Benguet, and
within the reservation defined in Act No. 636. The Solicitor-General
appeared in the court below and opposed the inscription upon the ground
that the property was public land. At the trial he objected to any
consideration of the case on the ground that the court had no jurisdiction
to register land situated in that reservation. The objections were
overruled and judgment entered in favor of the petitioner, from which
judgment the Government appealed to this court.

The act creating the Court of Land Registration (No. 496) gave it
jurisdiction throughout the Archipelago. By Act No. 1224, which was
approved August 31, 1904, and which applied to pending cases, the
court was deprived of jurisdiction over lands situated in the Province of
Benguet. That act, however, contained a proviso by which the court was
given jurisdiction over applications for registration of title to land in all

46
cases coming within the provisions of Act No. 648. Act No. 648 provides
in its first section that —

The Civil Governor is hereby authorized and empowered by

executive order to reserve from settlement or public sale and for
specific public uses any of the public domain in the Philippine
Islands the use of which is not otherwise directed by law.

Section 2 provides: "Whenever the Civil Governor, in writing, shall certify

that all public lands within limits by him described in the Philippine
Islands are reserved for civil public uses, either of the Insular
Government, or of any provincial or municipal government, and shall give
notice thereof to the judge of the Court of Land Registration, it shall be
the duty of the judge of said court" to proceed in accordance with the
provisions of Act No. 627. Act No. 627, which relates to military
reservations, provides that when notice is given to the Court of Land
Registration of the fact that any land has been so reserved, it shall be the
duty of the court to issue notice that claims for all private lands within the
limits of the reservation must be presented for registration under the
Land Registration Act within six months from the date of issuing such
notice, and that all lands not so presented within said time would be
conclusively adjudged to be public lands, and all claims on the part of
private individuals for such lands, not so presented, would be forever
barred.

On the 26th day of August, 1903, the following letter was directed by
Governor Taft to the judge of the Court of Land Registration:

47
 SIR: You are hereby notified, in accordance with the provisions of
Act No. 648, entitled "An act authorizing the Civil Governor to
reserve for civil public purposes, and from sale or settlement, any
part of the public domain not appropriated by law for special public
purposes, until otherwise directed by law, and extending the
provisions of Act Numbered Six hundred and twenty-seven so that
public lands desired to be reserved by the Insular Government for
public uses, or private lands desired to be purchased by the Insular
Government for such uses, may be brought under the operation of
the Land Registration Act;" that the Philippine Commission has
reserved for civil public uses of the Government of the Philippine
Islands the lands described in Act No. 636, entitled "An act creating
a Government reservation at Baguio, in the Province of Benguet,"
enacted February 11, 1903.

It is therefore requested that the land mentioned be forthwith

brought under the operation of the Land Registration Act and
become registered land in the meaning thereof, and that you
proceed in accordance with the provisions of Act No. 648.

Very respectfully,
(Signed)WM. H. TAFT,
"Civil Governor."

The court of Land Registration, acting upon this notice from the
Governor, issued the notice required by Act No. 627, and in pursuance of
that notice Jones, the appellee, within the six months referred to in the

48
notice, presented his petition asking that the land be registered in his
name.

The first claim of the Government is that the provisions of Act No. 648
were not complied with in the respect that this letter of the Governor did
not amount to a certificate that the lands had been reserved. The
Solicitor-General says in his brief:

To bring these lands within the operation of section 2 of Act No. 648
it was necessary for the Civil Governor first to certify that these
lands were reserved for public uses, and second to give notice
thereof to the Court of Land Registration.

We do not think that this contention can be sustained. Act No. 648
conferred power upon the Governor to reserve lands for public purposes,
but it did not make that power exclusive. The Commission did not thereby
deprive itself of the power to itself make reservations in the future, if it
saw fit; neither did it intend to annul any reservations which it had
formerly made. The contention of the Government is true when applied to
a case where the land has not been reserved by the Commission. In
such a case it would be the duty of the Governor to first reserve it by an
executive order, and then to give notice to the Court of Land Registration,
but where the land had already been reserved by competent authority, it
not only was not necessary for the Governor to issue any executive order
reserving the land but he had no power to do so. In such cases the only
duty imposed upon him was to give notice to the Court of Land
Registration that the land had been reserved. This notice was given in
the letter above quoted. The court had jurisdiction to try the case.

49
The petitioner Jones, on the 1st day of May, 1901, bought the land in
question from Sioco Cariño, an Igorot. He caused his deed to the land to
be recorded in the office of the registrar of property on the 8th day of May
of the same year. Prior thereto, and while Sioco Cariño was in
possession of the land, he commenced proceedings in court for the
purpose of obtaining a possessory information in accordance with the
provisions of the Mortgage Law. This possessory information he caused
to be recorded in the office of the registrar of property on the 12th day of
March, 1901.

The evidence shows that Sioco Cariño was born upon the premises in
question; that his grandfather, Ortega, during the life of the latter, made a
gift of the property to Sioco. This gift was made more than twelve years
before the filing of the petition in this case — that is, before the 16th day
of January, 1904. Sioco's grandfather, Ortega, was in possession of the
land at the time the gift was made, and has been in possession thereof
for many years prior to said time. Upon the gift being made Sioco took
possession of the property, and continued in such possession until his
sale to Jones, the petitioner. Since such sale Jones has been in
possession of the land, and is now in such possession. For more than
twelve years prior to the presentation of the petition the land had been
cultivated by the owners thereof, and the evidence is sufficient, in our
opinion, to bring the case within section 41 of the Code of Civil
Procedure, and to show such an adverse possession thereof for ten
years as is required by the section. The evidence of Sioco Carino shows
that what he did in the way of presenting a petition to the Spanish
Government in regard to a deed of the land was done by order of the

50
then comandante, and was limited to securing a measurement thereof,
as he then believed. These acts did not interrupt the running of the
statute of limitations.

Acts Nos. 627 and 648 provide that the provisions of section 41 of the
Code of Civil Procedure shall be applicable to all proceedings taken
under either one of these acts. These acts in effect provide that in
determining whether the applicant is the owner of the land or not, the
general statute of limitations shall be considered, and shall be applied
against the Government. The evidence showing, as we have said, such
an adverse possession, the petitioner proved his ownership of the land if
the Commission had authority to make the statute of limitations
applicable to these proceedings.

The claim of the Government is that this provision is void; that the act
thereby disposes of public lands; that Congress is the only authority that
can take such action, and that it has never authorized or approved the
action of the Commission in applying the statute of limitations to
proceedings under Acts Nos. 648 and 627. We do not think that this
contention can be sustained. Section 12 of the act of Congress of July 1,
1902, provides as follows:

SEC. 12. That all the property and rights which may have been
acquired in the Philippine Islands by the United States under the
treaty of peace with Spain, signed December tenth, eighteen
hundred and ninety-eight, except such land or other property as
shall be designated by the President of the United States for military
and other reservations of the Government of the United States, are

51
 hereby placed under the control of the Government of said Islands,
to be administered for the benefit of the inhabitants thereof, except
as provided in this act.

This gives the Government of the Philippine Islands power to dispose of

these lands, and of all public lands, and to pass the law in question,
unless there is some provision in other parts of the act of July 1, 1902,
which takes away or limits that power. The government says that such
limitation is found in section 13 of the act. That section and sections 14
and 15 are as follows:

SEC. 13. That the Gonvernment of the Philippine Islands, subject to

the provisions of this Act and except as herein provided, shall
classify according to its agricultural character and productiveness,
and shall immediately make rules and regulations for the lease,
sale, or other disposition of the public lands other than timber or
mineral lands, but such rules and regulations shall not go into effect
or have the force of law until they have received the approval of the
President, and when approved by the President they shall be
submitted by him to Congress at the beginning of the next ensuing
session thereof and unless disapproved or amended by Congress
at said session they shall at the close of such period have the force
and effect of law in the Philippine Islands: Provided, That a single
homestead entry shall not exceed sixteen hectares in extent.

SEC. 14. That the Government of the Philippine Islands is hereby

authorized and empowered to enact rules and regulations and to
prescribe terms and conditions to enable persons to perfect their

52
 title to public lands in said Islands, who, prior to the transfer of
sovereignty from Spain to the United States, had fulfilled all or some
of the conditions required by the Spanish laws and royal decrees of
the Kingdom of Spain for the acquisition of legal title thereto, yet
failed to secure conveyance of title; and the Philippine Commission
is authorized to issue patents, without compensation, to any native
of said Islands, conveying title to any tract of land not more than
sixteen hectares in extent, which were public lands and had been
actually occupied by such native or his ancestors prior to and on the
thirteenth of August, eighteen hundred and ninety-eight.

SEC. 15. That the Government of the Philippine Islands is hereby

authorized and empowered, on such terms as it may prescribe, by
general legislation, to provide for the granting or sale and
conveyance to actual occupants and settlers and other citizens of
said Islands such parts and portions of the public domain, other
than timber and mineral lands, of the United States in said Islands
as it may deem wise, not exceeding sixteen hectares to any one
person, and for the sale and conveyance of not more than one
thousand and twenty-four hectares to any corporation or
association of persons: Provided, That the grant or sale of such
lands, whether the purchase price be paid at once or in partial
payments, shall be conditioned upon actual and continued
occupancy, improvement, and cultivation of the premises sold for a
period of not less than five years, during which time the purchaser
or grantee can not alienate or encumber said land or the title
thereto; but such restriction shall not apply to transfers of rights and

53
 title of inheritance under the laws for the distribution of the estates
of decedents.

It is first to be noted that section 13 does not apply to all lands. Timber
and mineral lands are expressly excluded. If the Commission should
pass laws relating to mineral lands without submitting them to Congress,
as it has done (Act No. 624), their validity would not be determined by
inquiring if they had been submitted to Congress under section 13, but
rather by inquiring if they were inconsistent with other provisions of the
act relating to mineral lands. In other words, the fact that such laws were
not submitted to Congress would not necessarily make them void.

The same is true of legislation relating to coal lands, as to which sections

53 and 57 contain provisions. By section 57 this Government is
authorized to issue all needful rules and regulations for carrying into
effect this and preceding sections relating to mineral lands. Such
regulations need not be submitted to Congress for its approval. Act No.
1128, relating to coal lands, was not submitted.

The act of Congress also contains provisions regarding the purchase of

lands beloning to religious orders. Section 65 provides as to those lands
as follows:

SEC. 65. That all lands acquired by virtue of the preceding section
shall constitute a part and portion of the public property of the
Government of the Philippine Islands, and may be held, sold, and
conveyed, or leased temporarily for a period not exceeding three
years after their acquisition by said Government, on such terms and
conditions as it may prescribe, subject to the limitations and
54
 conditions provided for in this Act. . . . Actual settlers and occupants
at the time said lands are acquired by the Government shall have
the preference over all others to lease, purchase, or acquire their
holdings within such reasonable time as may be determined by said
Government.

Does the clause "subject to the limitations and conditions of this act"
require a submission to Congress of legislation concerning such land? If
it does, then Act No. 1120, which contains such provisions, is void,
because it was never so submitted.

Section 18 of the act of Congress provides as follows:

That the forest laws and regulations now in force in the Philippine
Islands, with such modifications and amendments as may be made
by the Government of said Islands, are hereby continued in force.

Must these modifications and amendments be submitted to Congress for

its approval? If they must be, then Act No. 1148, relating thereto, is void,
because it was not so submitted.

It seems very clear that rules and regulations concerning mineral, timber,
and coal lands, and lands bought from religious orders need not be
submitted to Congress. If they are not inconsistent with the provisions of
the act of Congress relating to the same subjects, they are valid.

Congress, by section 12 of the act, gave to the Philippine Government

general power all property acquired from Spain. When it required the
Commision to immediately classify the agricultural lands and to make
rules and regulations for their sale, we do not think that it intended to
55
virtually repeal section 12. Such, however, would be the effect of the rule
contended for by the Govenrment. If, notwithstanding the provisions of
section 12, any law which in any way directly or indirectly affects
injuriously the title of the Government to public lands must be submitted
to the President and Congress for approval, the general power given by
section 12 is taken away. An examination of some of the laws of the
Commission will show that a holding such as is contended for by the
Government in this case would apparently require a holding that such
other laws were also void. Act No. 496, which established the Court of
Land Registration, the court that tried this case, provides in section 38
that the decrees of the court shall be conclusive on and against all
persons, including the Insular Government, and all the branches thereof.
Neither the President nor Congress ever gave their consent to this law.
They never consented that the title of the Government to public lands
should be submitted to the judgment of the courts of the Islands. That
this law provides a means by which the Government may be deprived of
its property in such lands is apparent. In this very case, if the
Government had not appealed from the judgment, or if it should withdraw
its appeal, the lands would be lost to it--lands which the Attorney-General
claims are public lands. The land could not be more effectually lost by the
law shortening the statute of limitations than by this law making the
decrees of the Court of Land Registration binding on the Government. In
fact, the former law could not in any way prejudice the Government if it
were not for the latter law making the judgments of this court binding
upon it. Both of these laws in an indirect way affect the title to public
lands, but we do not think that for that reason they are included in the
terms "rules and regulations" used in section 13 of the act of Congress.
56
Act No. 1039 granted to the Province of Cavite and to the pueblo of
Cavite certain public lands. This act never was submitted either to the
President or Congress. Acts Nos. 660 and 732 authorized the leasing of
parts of the San Lazaro estate. The Government leased the sanitarium at
Benguet, and provided for its sale. None of these acts were ever
submitted to the President or Congress, which authorized such
disposition. The Government owns many isolated tracts of land, such as
the Oriente Hotel, for example. It has reclaimed from the sea a large tract
of land in connection with the works of the port of Manila. If the
Government should desire to sell this reclaimed land or to lease a part of
it for the site of an hotel, or should desire to sell the Oriente Hotel
building, we do not think legislation to accomplish such purposes would
require the previous approval of the President and of Congress. The
general purpose of section 13 was to require the Government to classify
agricultural lands and to pass a homestead law — that is, a law which
would state the rules and regulations by virtue of which title to the public
lands of which it can be decided in every case whether an act of the
Commission constitutes a rule or regulation within the meaning of section
13. It is sufficient to say that the law in question (Act No. 648), making a
statute of limitations run against the Government when the title to few
scattered tracts of land throughout the Archipelago is under
consideration, is not such a rule or regulations as required previous
submission to the President and Congress. It will be observed that be
section 86 of the act of Congress of July 1, 1902, Congress reserves the
right to annul all legislation of the Commission.

57
There is nothing in section 14 which requires the rules and regulations
therein mentioned to be submitted to Congress. But it is said that
although as to Act No. 648 submission to Congress was not required, it is
nevertheless void when applied to one not a native of the Islands,
because forbidden by this section; and that this section limits the power
of the Commission to declare possession alone sufficient evidence of title
to cases in which the claimant is native and in which the amount of land
does not exceed 16 hectares.

Section 14 is not limited to agricultural lands, as are sections 13 and 15.

It includes mineral and timber lands. So far as it relates to proceedings
theretofore taken under Spanish laws its benefits are not limited to
natives of the Islands nor to tracts not more than 16 hectares in extent.
Where the only claim is possession, no possession for any definite time
prior to August 13, 1898, is required, nor is proof of any possession
whatever after that date demanded. According to the strict letter of the
section a native would be entitled to a patent who proved that he had
been in possession for the months of July and August only of 1898. It is
not stated whether or not one who receives such a patent must occupy
the land for five years thereafter, as required by section 15. Neither is it
stated whether or not a person who was in possession for the month of
August, 1898, would be entitled to a patent in preference to the actual
settler spoken of in section 6. When legislating upon the subject-matter of
section 14, the Commission, in Act No. 926, did not make such a
limitation as has been suggested. Section 54, paragraph 6, of that act is
as follows:

58
 All persons who by themselves or their predecessors in interest
have been in the open, continuous, exclusive, and notorious
possession and occupation of agricultural public land, as defined by
said act of Congress of July first, nineteen hundred and two, under
a bona fide claim of ownership except as against the Government,
for a period of ten years next preceding the taking effect of this act,
except when prevented by war or force majeure, shall be
conclusively presumed to have performed all the conditions
essential to a Government grant and to have received the same,
and shall be entitled to a certificate of title to such land under the
provision of this chapter.

It is seen that this section does not exclude foreigners, nor is it limited to
tracts not exceeding 16 hectares in extent. To adopt the view that the
power of the Commission is so limited would require a holding that this
section is void as to foreigners and as to all tracts of land over 16
hectares in extent.

This paragraph of section 54 of Act No. 926 is in substance a

continuation of Act No. 648 and an extension of its provisions to all the
lands of the Islands.

To adopt the construction contended for would lead to an unjust result.

By the terms of the first part of section 14 the Commission has the power
to perfect the title to 100 hectares of land as to which a Spaniards may
have done nothing more than to file an application relating thereto, and of
which he never was in possession, while by the last party of the section
the Commission would be entirely without power to make any rules by

59
which a native who by himself and his ancestors had been in possession
of 100 hectares. Such a discrimination in favor of foreigners and against
the natives could not have been intended. It could not have been the
purpose of Congress to give the Commission ample power to legislate for
the benefit of foreigners and to limit its power to legislate for the benefit of
natives.

The meaning of these sections is not clear, and it is difficult to give to

them a construction that will be entirely free from objection. But we do not
think that authority given by the Commission to issue to a native a patent
for 16 hectares of land of which he was in possession during the month
of August, 1898, was intended to limit the general power of control which
by section 12 is given to the Commission.

The judgment of the court below is affirmed, with the costs of this
instance the appellant. After the expiration of twenty days let final
judgment be entered in accordance herewith and ten days thereafter let
the cause be remanded to the lower court for proper procedure. So
ordered.

60
G.R. No. 10072 November 29, 1916

WILLIAM ABRAHAM KINCAID, petitioner-appellee,

vs.
CAYETANO CABUTUTAN, ET AL., objectors-appellants.

Bernabe de Guzman, Pedro Abad Santos, Valentin Manglapus and Jose

I. Pinzon for appellants.
E. A. Perkins for appellee.

TORRES, J.:

This appeal by bill of exceptions was raised by counsel for Cayetano

Cabututan, Hilario Milo and others, occupants of different portions of the
land sought to be registered by William Abraham Kincaid, from the
judgment of September 13, 1913, in which the Court of Land
Registration, after a declaration of general default, denied all the adverse
claims filed by the objectors and decreed in favor of William Abraham
Kincaid the adjudication and registration of the land applied for except
the parcel situated in the sitio of Anduyan, barrio of Dacanay,
municipality of Tubao, Province of La Union, described more specifically
in the stipulation between the parties (record, pp. 329, 330). This parcel
was excluded for the reason that on August 25, 1911, it had already been
adjudicated and registered for school purposes in accordance with the
provisions of the Land Registration Act. There was also excluded a strip
of land 12 meters in width which composed the entire length of that part

61
of the Tubao-Rosario Highway that crosses the land in question. The
judgment further ordered the applicant to pay into the public treasury the
sum of P147.58 for the surplus of 93 hectares included in the application,
and that, once the judgment became final, the proper plan should be
amended by excluding therefrom the parcels of land specified in the
judgment. .

On September 28, 1911, counsel for William Abraham Kincaid filed a

written application in the Court of Land Registration for the inscription in
accordance with law of a tract of land situated in the sitio of
Cataguintingan, barrio of Anduyan, municipality of Tubao, La Union, of
which the technical description, metes and bounds are particularized in
the plan Exhibit A, a part of the application, and that stated that said tract
contains an area of 5,738,952 square meters, is assessed at P15,000
and is free of all charges and encumbrances; that the applicant had
acquired this land through conveyance in 1909 by Feliciano de la Rose;
and that the only adjacent owner was Guillermo Cabututan, a resident of
the barrio of Anduyan of the said municipality of Tubao, although the
property is occupied by 336 persons whose names the applicant cites in
a list accompanying his application.

On March 6, 1912, the Director of Lands through the Attorney-General

filed a written opposition to the registration sought on the ground that the
said tract of land was public land, belonging to the Government of the
United States, under the control and administration of the Government of
the Philippine Islands and as such could not be registered in the name of
the applicant, wherefore he prayed the court to deny the said application,
with the costs against the applicant.
62
During the period granted by law, 124 objectors filed in court their
respective adverse claims. Cayetano Cabututan claimed to be the owner
of 1 parcel of land 28,455 square meters, through inheritance from his
ancestors, and of another parcel containing 1,560 square meters,
acquired by purchase from its previous owner; Miguel Lijos also claimed
to be the owner of 1 parcel of land of 64,472 square meters which, he
alleged, he inherited from his ancestors; Nicolas Olat, of a parcel of
3,000 square meters; Felegrin Boado, of a parcel of 8 hectares in area;
Isaac de la Paz, of a parcel of 7,560 square meters; Francisco
Cabututan, of a parcel of 1,820 square meters; Marcos Isit, of a parcel of
10,640 square meters; Modesto Selin, of a parcel of 85,720 square
meters; Perfecto Garcia, of a parcel of 7,270 square meters; Irineo
Viloria, of a parcel of 26,000 square meters; Lucas Ollero. of a parcel of
1,440 square meters; Basilio Gago, of a parcel of 30,000 square meters;
Julian Gago, of a parcel of 10,570 square meters; Antonio Selga, of a
parcel of 10,814 square meters; Guillermo Albay, of a parcel of 7,000
square meters; Bernabe Albay, of a parcel of 7,000 square meters;
Saturnino Garcia, of a parcel of 3,600 square meters; Nazario Garcia, of
a parcel of 2,204 square meters; Guillermo Laron, of a parcel of 3,416
square meters; Aniceto Estoesta, of a parcel of 3,600 square meters;
Lauro Fang, of a parcel of 11,890 square meters; Bonifacio Fang, of a
parcel also of 11,890 square meters; Antonio Tabara, of a parcel of
11,160 square meters; Aniceto Canero, of a parcel of 15,762 square
meters; Bernardo Biduya, of 2 parcels, respectively, of 1,260 and 12,720
square meters; Daniel Cabututan, of 2 parcels of 13,000 and 28,864
square meters, respectively; Felipe Cabututan, of 2 parcels of
respectively 40,000 and 16,700 square meters; Felix Jacola, of 3 parcels
63
of respectively 9,576, 4,120 and 25,800 square meters; Toribio Lijos, of 3
parcels of a total area of 35,785 square meters; Donato Biduya, also of 3
parcels, of a total area of 14,388 square meters; Sinforoso Olarte, of 2
parcels, respectively, of 20,800 and 8,640 square meters; Modesto
Laron, of 3 parcels of a total area of 152,820 square meters; Estanislao
Ramirez, of 2 parcels which together contain 97,100 square meters;
Tiburcio Ventura, of 2 parcels of 1,760 and 13,190 square meters,
respectively; Teodoro Isla, of 3 parcels whose total area amounts to
30,002 square meters; Mauricio Tabares, of 2 parcels, respectively, of
37,056 and 31,862 square meters; Leocadio Romero, of 3 parcels of a
total area of 23,756 square meters; Vidal Tabares, of 2 parcels, of 1,550
and 1,323 square meters, respectively; Lucas Ofilada, of 2 parcels which
together measure 25,600 square meters; Gregorio Selga, of 2 parcels of
2,470 and 50,785 square meters, respectively; Dalmacio Boado, of 3
parcels containing a total area of 21,995 square meters; Silvestre Biduya,
of 3 parcels of a total of 23,704 square meters; Leon Viloria, of 2 parcels
containing, respectively, 6,650 and 990 square meters; Felipe Isla, of 3
parcels containing an area of 7,924 square meters; Segundo Fang, of 2
parcels, of 1,650 and 15,000 square meters, respectively; Antonio Laron,
of 2 parcels, respectively, of 11,899 and 5,300 square meters; Vicente
Lijos, of 3 parcels of a total area of 79,500 square meters; Primo Fang, of
4 parcels containing an area of 54,924 square meters; Felix Tabares, of
2 parcels, respectively, of 528 and 15,080 square meters; Isidro Isla, of 3
parcels of a total area of 37,404 square meters; Crisanto Tabares, of 2
parcels of a total area of 31,900 square meters; Victor Biduya, 5 parcels
which together measure 12,070 square meters; Crisanto Gago, of 3
parcels of a total area of 30,200 square meters; Basilio Aspillaga, of one
64
parcel, the area of which is not stated; Isidro Emperador, of 2 parcels of
1,800 and 5,600 square meters respectively; Eusebio Canero, of 3
parcels containing an area of 2,400 square meters; Damaso Camacho,
of a parcel of 48,300 square meters. All the foregoing objectors, 57 in
number, represented by attorneys Mina, Manglapus, and Pinzon, claim
as their property the respective parcels of land which they occupy, which
they allege they inherited from their ancestors, and which, according to
the stipulation found on page 960 of the record, they have possessed for
more than thirty years.itc_ALF

The following parties also filed adverse claims, alleging themselves to be

the exclusive owners of the parcels of land described in their respective
oppositions, by their quiet, peaceable, and continuous possession
thereof during various period ranging from thirty to sixty years; Alfonso
Ventura, 3 parcels; Eulogio Ventura, 2 parcels; Mariano Halog, 2 parcels;
Guillermo Selga, 1 parcel; Tranquilino Aspuria, in his own name and in
representation of his brothers or brother and sister (Valerio and Mariano
or Maria Aspuria), 1 parcel; Miguel Ventura, 2 parcels; Toribio Milo, 1
parcel; Esteban de la Paz, one parcel; Guillermo Tabara, 1 parcel;
Gregorio Laroya, 1 parcel; Marcos de la Paz, 1 parcel; Justo Rivera, 1
parcel; Nauro Gago, 1 parcel; Antonio Refuerzo, 1 parcel; Alipio Padilla,
2 parcels; Jacinto Selga, 2 parcels; Felipe Lloren, 1 parcel; Valerio
Panelo, as successor of Pablo Panelo, 2 parcels; Narciso Orencia, 1
parcel Felipa Orencia, 1 parcel; Pedro Estoparre, 2 parcels; Tiburcio
Madriaga, 2 parcels; Ambrocio Isla, 4 parcels; Alejandro Estoparre, 2
parcels; Servando Estoparre, 2 parcels; Eustaquio Estoparre, 2 parcels;
but Adolfo R. Gonzalez and Guillermo Orencia each of whom claims one

65
parcel, allege that they hold possession of these lands, the subject
matter of their claims, by title other than that of inheritance.

The following named parties also objected to the registration sought and
alleged themselves to be the exclusive owners of the parcels of land
included within the land sought to be registered and held by the quietly,
peaceably and continuously during periods of time ranging between thirty
and sixty years; Jose Bautista, 1 parcel; Higinio Aspiras, 2 parcels;
Raymundo Padilla, 2 parcels; Inocencio Dacanay, 1 parcel; Angel Milo, 4
parcels; Ignacio Dacalcap, 1 parcel; Roberto Cabututan, 1 parcel;
Faustino Padilla, 1 parcel; Sotero Isla, 2 parcels; Inocencio Padilla, 2
parcels; Doroteo Milo, 2 parcels; Ignacio Dacanay, 1 parcel; Ricardo
Cabututan, 2 parcels in the barrios of Verceles and Lloren; Fausto
Dacanay, 1 parcel; Antonio Isla, in substitution for his deceased father
Segundo Isla, 2 parcels; Miguel de Ocampo, 2 parcels; Gelacio Milo, 3
parcels; Serapio Cabututan, 1 parcel; Valeriano Padilla, 1 parcel; and
Alberto Cabutuan, 2 parcels.

At the hearing of this case, the provincial fiscal of La Union, in

representation of the municipality of Tubao, and the herein applicant,
reached an agreement (part 2 of the record, pp. 329-30), whereby the
applicant excluded from his application the land situated southwest of the
Tubao- Rosario highway, in the sitio of Anduyan, barrio of Dacanay,
municipality of Tubao, containing an area of 5,412 square meters, which
land had already been registered under the Torrens Law, in August,
1911, and had been set aside for school purposes.

66
The interested parties also agreed to exclude the strip of land 12 meters
wide comprising that part of the Tubao- Rosario highway which crosses
the land in question, and also the following four parcels of land, namely:
one of 6 hectares, 43 ares, and 75 centares, in behalf of Santiago Betia;
2 of a total area of 5 hectares, 37 ares, and 50 centares, in behalf of 3
objectors, Feliciano, Cenon, and Candido, brothers, all surnamed Ballejo;
and another of 12 hectares, 18 ares, and 75 centares in area, waived by
the applicant in behalf of the objectors Mariano Orencia and Esteban
Orencia. According to agreement (p. 962 of the record) Tomas
Montemayor, Victoriano Olarte, and Guillermo Milo withdrew their
oppositions, their lands not being included in the land in question.

The application for registration was accompanied by a list of the names

of 336 persons who, according to the applicant, actually occupy the tract
of land situated in Cataguintingan which he seeks to register, and of
whom, in spite of due notification and summons, only 124 filed adverse
claims; 3 of these, Victoriano Olarte, Guillermo Milo or Melo, and Tomas
Montemayor, already mentioned, must be excluded. Three other adverse
claims should be excluded, to wit, those of the aforementioned Santiago
Betia, the representative of the brothers Feliciano, Cenon and Candidio
Ballejo, and the representative of the other brothers Mariano and
Esteban Orencia.

Of the 118 remaining objectors, 4, Fernando Viloria, Bibiana Emperador,

Gregorio Boado, and Simeon Boado, did not appeal from the judgment;
but according to the bills of exceptions, although the objectors Hilario
Milo, Primo Padilla, Honorato Mabalot and Susana or Ricardo Campos,

67
did appeal, yet they did not, either by themselves or by their counsel, file
any brief in support of their appeal in this second instance.

Felipe Padilla, Nicomedes Lustrino, Hilario Gagauin, Emeterio Tabora or

Tabara, Melecio Dacanay, and Bernardo Dacanay do not appear, from
the record, to have filed adverse claims in the Court of Land Registration;
but the record shows that they appealed from the judgment, though their
names, with the exception of Bernardo Dacanay, do not appear in the
briefs presented in this second instance. Bernardo Dacanay's name
appears in the brief submitted by the attorneys Abad Santos, Manglapus
& Pinzon.

After a hearing of the case and the introduction of evidence by the

parties, the court rendered the judgment aforementioned, to which the
interested parties excepted and in writing moved for a reopening of the
case and for a new trial. These motions were overruled, exception was
taken by respondents, and, upon the filing of the proper bills of
exceptions, the same were approved and transmitted to the clerk of this
court.

In this decision, therefore, we shall not only consider the appeal of the
105 objectors named in the bills of exceptions, but also the appeal filed
by Bernardo Dacanay, notwithstanding that he did not object to the
application for registration.

On June 13, 1882, Basilio Biduya, a resident of Agoo, Province of La

Union, applied to the Direccion General de Administracion Civil, under
the previous sovereignty, for the adjudication of 3 parcels of waste or
uncultivated land situated in Ambangonan, Tarambang, and in
68
Cataguintingan. The metes and bounds of this last parcel are as follows:
On the north, the Masalit River; on the east, the barrio of Anduyan; on
the south, that of Damusil; and on the west, the streams or creeks called
Caoigui, Pucai and Tubao. The boundaries of the parcels of land situated
in Ambangonan and Tarambang are not given, their registration not
being applied for, only the parcel of Cataguintingan was included in the
application, as will be seen further on.

Between November 17 and 20, 1882, by delegation of

the gobernadorcillo of Agoo, the teneinte de justicia, accompanied by two
prominently residents and a forestry employees (after due notice and
summon to the holders of the land adjacent to or comprised within those
intended to be inspected) went upon the lands, applied for by Basilio
Biduya for the purpose of measuring the same. As Basilio Biduya had
since died his eldest son Sotero was present in his place and seated but
no opposition or adverse claim whatever was presented. The parcel of
land in Cataguintingan, barrio of Tubao, 7 kilometers from the church,
was found to be waste or uncultivated, situated outside of the legua
comunal of the pueblo, and to have the following boundaries; on the
north, the Masalit River; on the east, the river flowing from Ambangonan
toward Masalit and known as Anduyan, Pugo, etc.; on the south, by the
Damusil Creek and public forests; and on the west, by the creeks known
as Caoigui, Pucao and Tubao. No mention is made of the parcel of land
in Ambangonan, or in Tarambang, as they are not concerned in the
application.

The two tracts of land applied for both in Manila and in La Union, on April
16, 1885, having been offered for sale at public auction, by virtue of the
69
decree issued by the office of the Intendencia General de Hacienda, the
unappropriated public lands situated in Cataguintingan and Ambangonan
were awarded for P750 to the bidders Manuel Bernal and Froilan
Sabugo; and, as on August 11th of the same year, the latter alone paid
the aggregate amount which the two should have paid, to wit, P783.75
(Manuel Bernal making no payment) the subdeputy of the treasurer of La
Union issued to Froilan Sabugo alone, in the name of the Government,
the proper deed to the said land. This document was recorded in
the Administracion General de Rantas y de Propeidades, in
the Inspeccion General de Montes and in the Gobierno Politico Militar of
La Union.

On January 25, 1900, Froilan Sabugo sold the said two tracts of land
Francisco de la Rosa for P800. Feliciano de la Rosa, administrator of the
estate of the deceased Francisco de la Rosa, lacking funds to pay the
fees of attorney William Abraham Kincaid employed in the proceedings
for the probate of the will, on November 3, 1909, made a deed of
conveyance of the tract of 480 hectares situated in Cataguintingan,
Tubao, and bounded on the north by the Masalit River, on the east by the
Anduyan River, on the south by the Damusil Creek and public forests,
and on the west by the Caoigui, Pucao, and Tubao Creeks. This deed of
conveyance, approved by the court, was entered in the registry on
February 4, 1911, by virtue of the decree of the 17th of the preceding
month of January, being rendered on a petition of the said grantee by
said administrator of said estate of Francisco de la Rosa be ordered
registered, notwithstanding that its registration had previously been
denied by the register of deeds of the said Province of La Union.

70
It is unquestionable that the grantee William A. Kincaid, through the
conveyance made by the administrator of the estate of the deceased
Francisco de la Rosa in the deed of November 3, 1909, obtained the
ownership of the tract of land situated in the place known as
Cataguintingan, barrio of Tubao, pueblo of Agoo, containing 5,738,952
squares meters, or an area of 573 hectares. Decedent De la Rosa's title
to the land was derived from Froilan Sabugo who sold it to him in addition
to another for P800, the vendor, Sabugo, in his turn having acquired both
tracts from the Government during the former sovereignty.

Section 19 of Act No. 496 provide that the person or persons claiming,
singly or collectively, an estate in fee simple may apply for registration of
title. The applicant, in applying for the inscription of the said tract of land
in the registry, bases his petition on the ground that he is the owner of
the property by reason of the conveyance made to him by the
representative of its former owner — a conveyance which constitutes a
just title conveying ownership.

Froilan Sabugo, the original owner who acquired from the Government
the tract of land in Cataguintingan together with another tract, resided,
not in the pueblo of Agoo, but in San Fernando, the capital of the
Province of La Union, where he had a store. From the time he purchased
the land in question then occupied by several residents of the place, he
commended the collection of the rents paid by the occupants of the land
for several years before the Revolution broke out in 1896 to the parish
priest of said pueblo of Agoo, but after this priest left the said pueblo, no
one collected the rents or canon for the occupation of the land, according
to the testimony of the witness Timoteo Soberano who stated that he did
71
not know whether Froilan Sabugo cultivated the said land or not. But
another witness, Mariano Fang, positively asserted that for two years he
himself was engaged in clearing the land; that afterwards he himself
delivered it to Sabugo. Witness added that at the time and during a
period of four years, he paid rent for land, within the land in question,
occupied by himself, to Gregorio Selga, one of the collectors; that such
rent consisted of a certain amount of rice, but that he paid this rent in the
belief that the land belonged to the Government, that this was also the
belief of the other holders of various portions of the land in question,
about twenty in number. The parties stipulated between themselves that
the witnesses Antonio Subitan and Sebastian Nieva, if called to the
stand, should give the same testimony as the preceeding witness.
Esterio Romero, 26 years of age, stated that he was one of those who
accompanied the surveyor when the survey was made and boundaries
fixed on the land to be registered.

From the documents exhibited by the applicant, it is unquestionable that

he holds a valid and effective title by virtue of which the ownership of the
land situated in Cataguintingan, containing some 480 hectares, was
conveyed to him by the representative of its former owner, Francisco de
la Rosa, who had acquired it, together with another tract of land, from
Froilan Sabugo who in his turn had purchased it from the Government at
public auction; but the record does not show as duly proven that the
applicant Kincaid, on obtaining by conveyance said tract of land, took
possession in November, 1909, or at any time afterwards, through
himself, or representatives, or agents.

72
Neither does the evidence adduced at the trial show that Froilan Sabugo
held this tract of land for any length of time, for the testimony of the two
witnesses to the effect that they and some twenty other people were
paying rents for certain portions of the land they were occupying, under
the belief that they were thereby complying with an obligation due the
Government, does not show conclusively that Froilan Sabugo was in
possession of these 480 hectares of land awarded to him at an auction
sale by the Government under the previous sovereignty, and still less so
because there is no proof who those twenty persons were who paid such
rents or canon nor whether they or their successors are among the
present objectors and appellants.

There was no proof that Francisco de la Rosa, who substituted Froilan

Sabugo in the rights in the land in Cataguintingan, took possession of the
property. In fact the record discloses no proof whatever of any such
possession, nor can it be considered to have been proven by the
statements of the several witnesses presented by the applicant to the
effect, that prior to the latter's obtaining the conveyance of the land, the
attorney Cayetano Lukban at various times offered to sell portions of the
land to its occupants, in the name and by order of Feliciano de la Rosa.

The owner of real property sought to be registered by him in the property

registry must exercise the ownership, that is, the right of ownership and
possession, of the said realty belonging to him in fee simple (art. 348,
Civ. Code). If the owner does not enjoy the possession of the thing that
belongs to him, he cannot exercise complete right of ownership is entitled
to be respected in his possession, in which case it is presumed that the
owner has, by one or another of the causes specified in article 460 of the
73
same Code, lost the possession of the property of which he is the owner.
It must always be borne in mind that, pursuant to article 447 of the Civil
Code, the possession acquired and enjoyed as owner will serve as a title
for acquiring the ownership, for the reason that the possessor under such
a title has in his favor the legal presumption that he holds possession by
reason of a just title and he cannot be forced to show it (art. 448 of the
same Code). Possession, the unquestionable foundation of the
prescription of ownership, after the expiration of the long period fixed by
law, even without just title or good faith, weakens and destroys the force
and value of the best possible title to the thing possessed by one who is
not the owner thereof (arts. 447, 448, and 1959, Civ. Code).

During the trial of the case and the taking of the evidence adduced by the
objectors, the attorney for the applicant Kincaid and Attorney Valentin
Manglapus, of the law firm of Mina, Manglapus & Pinzon, in
representation of 57 objectors, made the following stipulation:

That the said objectors and their witnesses shall be deemed to

have testified that, were they called to the witness stand, they would
testify that the objectors hold the lands they claim as owners, as set
forth in their oppositions; that they have been in possession,
counting that of their predecessors in interest, for more than thirty
years; and that such possession has been open, public, and
adverse and always as owners, until they were cited to appear in
these proceedings. (Record, p. 961.)

The said 57 objectors referred to in the preceeding stipulation, are:

Crisanto Tabares, Crisanto Gago, Basilio Aspillaga, Isidro Emperador,

74
Eusebio Canero, Damaso Camacho, Cayetano Cabututan, Miguel Lijos,
Nicolas Olat, Felegrin Boado, Isaac de la Paz, Francisco Cabututan,
Marcos Isit, Modesto Selin, Perfecto Garcia, Irineo Viloria, Lucas Ollero,
Basilio Gago, Julian Gago, Antonio Selga, Guillermo Albay, Bernabe
Albay, Saturnino Garcia, Nazario Garcia, Guillermo Laron, Aniceto
Estoesta, Lauro Fang, Bonifacio Fang, Antonio Tabara, Aniceto Canero,
Bernardo Biduya, Daniel Cabututan, Felipe Cabututan, Felix Jacola,
Toribio Lijos, Donato Biduya, Sinfroso Olarte, Modesto Laron, Estanislao
Ramirez, Tiburcio Ventura, Teodoro Isla, Mauricio Tabares, Leocadio
Romero, Vidal Tabares, Lucas Ofilada, Gregorio Selga, Dalmacio Boado,
Silvestre Biduya, Leon Viloria, Felipe Isla, Segundo Fang, Antonio Laron,
Vicente Lijos, Primo Fang, Felix Tabares, Isidro Isla, and Victor Biduya.
No documentary evidence was presented.

It was also stipulated between the attorney for the applicant and Attorney
Alejo Mabanag, in representation of the objectors, Angel Milo, Jose
Bautista, Faustino Dacanay, Inocencio Padilla, Higinio Aspiras, Faustino
Padilla, Valeriano Padilla, Miguel de Ocampo, and Ambrosio Isla, that, if
these objector-appellants and their witnesses were called to the witness
stand, they would testify in accordance with their respective adverse
claims, in regard to the same previously stipulated facts of possession,
and in accordance with the testimony already given by the objectors
Ignacio Dacanay and Pedro Madriaga. By virtue of this stipulation the
said objectors (those mentioned at the beginning of this paragraph) and
their witnesses were deemed to have testified in the sense here
explained (rec., pp. 932 to 936). It is to be noted that four other objectors
who have not appealed are comprised in this stipulation.

75
Ignacio Dacanay testified that for more than thirty years he had been in
the quiet, peaceable and uninterrupted possession of the land that is the
subject matter of his opposition, that he inherited this property from his
ancestors; that he had recognized no person as owner of the land; and
that he had never paid any rent or canon to Father Franco or his agents
or collectors.

Pedro Madriaga testified that for more than forty-five years he had been
in the quiet, peacable and uninterrupted possession of the parcel of land
that is the subject matter of his opposition; that he did not know Father
Saturnino Franco; and that he had not paid him or his representative any
sum whatever as rent or canon.

The record also shows that a stipulation was made between the applicant
and Attorney Ambrosio Asper in representation of 18 of the objectors —
the names of 7 are omitted on account of their not having appealed from
the judgment; the remaining 11 did appeal and a brief was filed in their
names which are as follows: Alfonso Ventura, Eulogio Ventura, Mariano
Halog, Guillermo Selga, Tiburcio or Toribio Milo, Gregorio Laroya,
Marcos de la Paz, Mauro Gago, Justo Rivera, Miguel Ventura, and
Esteban de la Paz. This stipulation consisted in the admission that, were
these objector-appellants called to the witness stand to testify, they
would give the same testimony as that in the stipulation between the
applicant and the attorney Manglapus, to wit, that they have held the
lands they claim for more than thirty years, including in this possession
that of their predecessor in interest, and that their possession has been
open, public and adverse and always as owners (rec., pp. 961 and 979).

76
These facts were corroborated by Jacinto Selga, Antonio Refuerzo, Alipio
Padilla, Tranquiliono Aspuria, and Guillermo Tabara.

The objector Inocencio Padilla presented in evidence the documents

Exhibits 2 and 3. The first of these is a certified copy of a document,
issued by the gobernadorcillo of Agoo on December 5, 1879, wherein, it
appears that Remigio Estoesta was the owner of a parcel of land in
Caoigui, which he had inherited from his ancestors and which was
appraised at P50. This document was protocolized by order of the Court
of First Instance of La Union on December 13 of that year. The second
document is one of a private character. It bears the date of November 16,
1870. In it Remigio Estoesta and his wife Estefania Castillo declare that
they sold a parcel of land in the sitio of Caoigui to Teodoro Padilla for
P40.

To prove his opposition, Valeriano Padilla exhibited a certified copy of the

inscription of a possessory information approved on March 16, 1897,
inscribed thirteen days later on the 29th of the same month, and relating
to 2 parcels of land, one of the m designated by the number 142 and
situated in Caoigui, municipality of Agoo, barrio of Tubao.

The objector Miguel Ocampo, son of the deceased Ocampo, to prove his
opposition, exhibited a certified copy of certain proceedings, entered in
the registry on March 28, 1898, relative to 4 parcels of land, of which the
first and fourth are included in the application for registration and are
situated in Caoigui, municipality or barrio of Tubao (Exhibit 13; rec., p.
563).

77
According to the stipulation (rec., 835) between the applicant and the
Attorney Mabanag (in representation of his client Raymundo Padilla) the
latter, if called to the witness stand, would testify in accordance with the
statements contained in his written opposition. This objector presented in
evidence Exhibit 4, which is a deed of purchase and sale executed on
November 17, 1902, by Encarnacion Gonzalez who, for P300, sold to the
said Raymundo Padilla a parcel of land in Cabacusan, municipality of
Tubao, his inheritance from his deceased father. This deed is shown to
have been entered in the property registry of San Fernando de la Union
on November 22, 1902; the objector also exhibited a certificate of the
municipal president and the municipal council of the said pueblo, of
November 14 of the same year, which states that though by a judgment
of 1900 Santiago Fontanilla, husband of said Encarnacion Gonzalez had
been deprived of his civil rights since then, nevertheless it is evident from
the stipulation (rec., p. 933) that the said document (Exhibit 4) attested by
the gobernadorcillo of Agoo in favor of Padilla was subsequently
protocolized by the notary Tamayo, although it does not seem to have
been entered in the registry in the name of the vendor Gonzalez.
However, every one admits that the old registry books were burned or
destroyed during the Revolution. The document Exhibit G which is a
certificate by the registrar of property of La Union, issued on July 22,
1913, confirms the inscription of said deed in the name of Raymundo
Padilla. (rec., p. 608).

Contrary to the statements of applicant's witnesses known as Mariano

Fang and Sebastian Nieva, that Santiago Betia was Father Franco's
collector and that they themselves had paid the rent or canon for certain

78
parcels of land belonging to one Sabugo, the witness Betia testified that,
though he was acquainted with Father Franco, he had never been
authorized to collect the canon of the land in litigation, and that he never
knew Basilio Biduya had purchased land in Agoo.

Having thus far considered the evidence of record in respect to 78 of the

objectors who in their briefs have maintained their respective appeals in
this second instance, we shall now examine the evidence and proofs of
the remaining 19 objectors who also appealed from the judgment of the
Court of Land Registration without counting the nine other objectors who
presented no evidence at the hearing of the case in first instance and
who are not included in the stipulations aforementioned.

The said 19 objector-appellants are:

Jacinto Selga, 53 years of age, alleges that he is the owner of 2 parcels

of land included in the tract of land which is the subject matter of the
application; that, aside from the possession of his predecessors in
interest, he had been holding the first parcel peaceably and
uninterruptedly for more than ten years, and the second parcel for more
than 33 years, that is, since inheriting them from his father Toribio Selga;
and that he never paid any sum whatever as canon to either Father
Saturnino Franco, Severo Fontanill or Gregorio Selga (with all of whom
he was acquainted). This objector exhibited the document Exhibit 17
which states that the first parcel of land he claims belonged to the
daughters of the deceased Fernando Ulac; he also presented a certified
copy of a possessory information proceeding, instituted by himself,
proving possession under title of ownership of 4 parcels of land entered

79
in the registry on March 18, 1897. The witness Domingo Selga
corroborated the testimony of this objector.

Antonio Refuerzo, 51 years of age, claimed to hold as owner of the

parcel of land that is the subject matter of his opposition, alleging that he
inherited this property from his father some thirty-two years ago, and
stated that he had never paid any sum whatever as canon to Father
Franco, nor to the said Fontanilla or Selga. The testimony of this objector
appears corroborated by the witnesses Jacinto Selga and Domingo
Selga. Furthermore, he exhibited a certified copy of a possessory
information, Exhibit 20, entered in the property registry on March 15,
1897.

Alipio Padilla, 68 years of age, testified that for more than thirty-five years
he had been in the quiet and peaceable possession of two parcels of
land — one acquired from a man named Esteban, and the other inherited
from his father more than forty-five years ago — that he had held these
parcels of land as owner; and that he had paid no canon to any of the
aforesaid parties, Father Franco, Fontanilla or Selga. The witnesses
Teodoro Padilla, 61 years of age, and Valeriano Padilla, 62 years of age,
corroborated the testimony given by this objector who also exhibited a
certificate of possessory information (Exhibit 21) entered in the property
registry on May 7, 1897, relative to a sementera situated in Sabangan
Caoigui of the pueblo of Tubao.lawphil.net

Tranquilino Aspuria testified that in his own name and in the names of his
brother and sister, Mariano and Valeriana Aspuria, he had been holding
as owner a parcel of land for more than eighteen years, without counting

80
the period of possession of his father, Pio Aspuria, who in turn had
inherited the land from the objector's grandfather Pablo Lagleba; that he
never had paid canon for the land; (his testimony was corroborated by
the witness Domino Selga) and presented a possessory information title
(Exhibit 22) obtained in 1856 by proceedings had before
the gobernadorcillo of Agoo and protocolized by a judicial order.

Guillermo Tabara alleged that as owner he had held a parcel of land for
more than seventeen years, without counting the time of possession of
his grandfather, Francisco Aspuria, from whom he inherited the property,
and that he had never paid any canon to any person whomsoever (his
testimony was corroborated by the witness Francisco Aspuria), and he
exhibited a certified copy of a deed of sale (Exhibit 23) executed May,
1879, by Regino Tuvera in favor of Francisco Aspuria and protocolized
on January 2, 1880.

Ignacio Dacanay, 55 years of age, testified that he possessed a parcel of

land in the sitio of Cataguintingan, barrio of Lloren; that he had held it
ever since he was 18 years of age at which date he received it from his
father who in turn had inherited it from Dacanay's grandfather; that he
had never recognized any person whomsoever as the owner of this land,
and that he had paid no canon therefor to Father Franco or to any of his
agents. The witnesses Angel and Hilario Milo corroborated his testimony.

Felipe Lloren testified that he held as owner a parcel of land situated in

the barrio of Lloren and comprised within the land sought to be registered
by the applicant; that 40 years ago he had inherited this property from his
father Francisco Lloren who in turn had acquired same by right of first

81
cultivation, when the objector was 18 years old; and that neither he nor
his father had ever paid any person any sum whatever as canon. (His
testimony was corroborated by the witness Buenaventura Dacanay.) He
presented a possessory information title, obtained by proceedings
brought by Francisco Lloren in February, 1886, before
the gobernadorcillo of Agoo, which document proves his possession of a
parcel of land in the sitio of Tubao, barrio of San Isidro and was approved
by the politico-military governor of La Union and was afterwards
transmitted by order to the main court of the province, for the purposes
required by law.

So far as Felipa Orencia, Narciso Orencia, and Guillermo Orencia are

concerned it was fully proven that these objectors are descendants of
Agustin Orencia who, at his death in 1867, left, among other heirs, his
children named Buenaventura Orencia (father of the objector Felipa),
Quirino Orencia (father of objector Narciso Orencia), and Joaquin
Orencia (father of objector Guillermo Orencia) as well as that the lands
belonging to the said Agustin Orencia, the common predecessor in
interest, were divided among his eight children in 1875. It was also duly
proven with the legal requisites and with the permission of the owners of
the adjoining properties, the said Agustin Orencia filed information
proceedings before the gobernadorcillo of Agoo regarding a parcel of
land he was occupying in the sitio of Cataguintingan, barrio of San Isidro,
pueblo of Agoo, and that his petition was granted, pursuant to article 9 of
the superior decree issued by the governor and captain general, on
October 30, 1827. The fact of the partition in 1875 of a piece of Agustin
Orencia's land in Cataguintingan among his seven children and his

82
adopted son Ramon Ballejo appears to be corroborated by the testimony
of Buenaventura Dacanay, 77 years old, an eyewitness to this partition.

The applicant admitted by stipulation (rec., p. 872) that the objectors

Guillermo Orencia and Narciso Orencia would state, if they testified, that
they adjacent boundary owners and areas of their lands were the same
as those set forth in their adverse claims. It was furthermore shown that
in 1911 Guillermo Orensia inherited from his father Joaquin Orencia the
piece of land 5 hectares, 67 ares, and 60 centares, claimed by this
objector, and that he also presented at the trial the Exhibit 7, a record of
a possessory information proceeding brought by Joaquin Orencia in
March, 1895, in respect to a parcel of land in Cataguintingan which he
alleged he had inherited from his father Agustin Orencia who had held it
since 1858. It is this land that was conveyed to the objector Guillermo
Orencia .The second parcel claimed by the latter is a piece of land which
his father Joaquin Orencia had held since 1858, situated in the barrio of
Anduyan and also a subject matter of the said possessory proceeding,
Exhibit 7, and on January 21, 1896, preventively annotated by the
register of deeds of La Union, for lack of indexed in the old anotaduria.
The piece of land that corresponds to Quirino Orencia, conveyed to him
by the said Agustin Orencia, was likewise the subject matter of a
possessory information proceedings brought by Quirino in 1895; said
land passed into the possession of his son, the objector Narciso Orencia.
However, by reason of a suit for ejectment brought against Santiago
Tabares, the title awarded in the said possessory information proceeding
was attached to the record which disappeared as a result of a fire during
the Revolution, after Narciso Orencia had defeated the said Tabares in

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the suit (as shown by the copy of the judgment therein rendered on
November 12, 1897, in favor of the former, Exhibit 12) wherefore the land
now occupied by Santiago Tabares belongs to the objector Narciso
Orencia.

Felipa Orencia likewise proved that she had received the land she claims
from her grandfather Agustin Orencia, through her father Buenaventura,
in 1875, without considering the possession of her predecessor in
interest which dated from 1858.

Ricardo Cabututan testified that he had held as owner the land he claims
in the barrio of Verceles, pueblo of Tubao, for about twenty-two years,
that he inherited same from his father Basilio Cabututan who had been in
possession thereof for a long period of time, (this testimony was
corroborated by his witness Sotero Isla) and also exhibited the document
Exhibit 8, executed before the gobernadorcillo of Agoo, attesting that
Basilio Cabututan owned a piece of land in the sitio of Piccao, barrio of
San Isidro, which document was protocolized in court on December 13,
1879.

In regard to the opposition of Adolfo R. Gonzalez, of his brothers

Eduardo and Carlos and his sister Encarnacion Gonzalez, this objector
testified that his 26 hectares of land had belonged to his father Felipe
Santiago Gonzales who had acquired the same by purchase from a man
named Manuel Bernal. His testimony in regard to the purchase of the
land from Bernal was corroborated by Raymundo Padilla. The document
Exhibit 9, presented by the Gonzalez brothers and sister, shows that in
1885 Eugenio Ramos bought 3 parcels of land from the Government, of

84
which the second situated in Tubao, pueblo of Agoo, containing an area
of 26 hectares and 63 ares, is the parcel now claimed by these objectors,
and that the payment of the purchase price was made by Manuel Bernal,
as attested by the document Exhibit 10. No documental proof was
adduced of the sale of the land by Manuel Bernal to the father of these
objectors, though, in addition to the affirmation of Adolfo R. Gonzalez and
his witness Raymundo Padilla, it appears that his land was sold by
Bernal to Felipe Santiago Gonzalez who, in May, 1896, (according to the
certified copy Exhibit 11) commenced possessory information
proceedings in regard to 2 parcels of land, of which the second is the one
described as the second parcel in the said document Exhibit 9 and also
that is now claimed by these objectors. The title obtained by the said
possessory proceedings was entered in the property registry of La Union
on August 31, 1896.

Ignacio Dacalcap, 60 years of age, claims to be the owner of a piece of

land situated in the barrio of Lloren, comprised within the land sought to
be registered by Kincaid, and testifies that for more than thirty years he
has been in the peaceable and uninterrupted possession of same which,
inherited from his father, Eusebio, he has held as owner, without ever
having paid to anyone any amount whatever as canon therefor. His
witness Sotero Isla corroborated his testimony.

Sotero Isla, 50 years of age, alleged that he was the owner of 4 parcels
of land, 2 in the barrio of Verceles and 2 in Lloren, as set forth in his
adverse claim, and that he had held possession of them for more than
thirty years, peaceably and uninterruptedly as the owner thereof, by
reason of his having acquired them by inheritance from his father. His
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testimony was corroborated in all respects by the witness Ignacio
Dacalcap.

Valerio Panelo, 36 years of age and the successor in interest in the

adverse claim filed by Pablo Panelo, his father, testified that he held as
owner 2 parcels of land included in the tract sought to be registered,
situated in the barrio of Lloren, and added that his father had bought
them of Ramon Ballejo, who, as an adopted son, had inherited them from
Agustin Orencia. According to the testimony of Buenaventura Dacanay
(rec., p. 866), it is unquestionable that the lands of Agustin Orencia were
distributed among his seven children and an adopted son named Ramon
Ballejo. Although it was not established by documentary evidence that
Ballejo's land was conveyed to Pablo Panelo, it was proven by the
testimony of the witnesses Ignacio Dacalcap and Narciso Orencia (a
grandson of Agustin Orencia) that it was actually so conveyed to Panelo.
Narciso Orencia further stated that for more that twenty years the
Panelos had been in possession of the land that is the subject matter of
this opposition (rec., p. 902). As the applicant made no objection to the
oral evidence, offered by Valerio Panelo, to prove the conveyance of the
land by Ramon Ballejo to the objector's father Pablo Panelo, this fact
must be admitted as proven. (Conlu vs. Araneta and Guanko, 15 Phil.
Rep., 387.)

Antonio Isla, son of Segunda Isla, testified that he was the exclusive
owner of a parcel of land included in Kincaid's application, and that ever
since he could remember his father has cultivated it. His testimony was
corroborated by Sotero Isla.

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Roberto Cabututan testified that he held as owner 2 parcels of land
situated in the barrio of Lloren, comprised within the land sought to be
registered by the applicant, and that he had held possession of them for
more than seventeen years, without considering the time they had been
held by his father from whom he received them. His testimony was
corroborated by Ignacio Dacalcap.

Serapio Cabututan, 46 years of age (whose testimony was corroborated

by Ignacio Dacanay and Roberto Cabututan), stated that he was the
exclusive owner of a parcel of land in the barrio of Lloren, pueblo of
Tubao, comprised within the land sought to be registered by Kincaid, and
that he had inherited same from his father Remigio Cabututan who had
been in possession of it from the time of this objector's earliest
remembrances.

Gelasio Milo, 49 years of age, testified that he was in possession, as

owner, of 3 parcels of land comprised within the land referred to by the
applicant; and that the first of these parcels, situated in the sitio of
Llavan, barrio of Lloren, was purchased for P230 from Erasmo Isit in
October, 1907. (According to the document Exhibit 15, the vended were
Gelasio Milo and Hilario Gagauin, but it appears that in May, 1866,
Erasmo Isit obtained a document accrediting his possession of a parcel
of land in the sitio of Llavan and that his document was attested by
the gobernadorcillo of Agoo, the proceedings being subsequently
approved by the politico-military governor of La Union who ordered them
recorded in the book of purchases and sales of the pueblo of Agoo,
which was done.) Milo alleged that he inherited from his father Toribio
Milo the other 2 parcels of land he claimed; that he has held them as
87
owner for more than ten years; that his possession thereof has been
peaceable, public and adverse, and that at no time has he paid to any
person any sum whatever therefor as canon.

Therefore 97 of the objector-appellants now lawfully hold as owners their

respective parcels of land, inasmuch as they have proven such
possession by parol, and many of them by documentary evidence, and,
furthermore, the applicant admitted that 78 of them had been in
possession of their respective holdings for more than thirty years,
according to the stipulations made between him and the attorneys
representing these objectors. The other 19 objectors have also
satisfactorily proven that they have, for more than twenty years, as
owners, been in possession of the parcels of land they occupy, without
considering the periods of possession enjoyed by their predecessors.

If a person enjoys possession under title of owner for more than thirty
years, even though that title be neither just nor of good faith, especially if
said resident be a native of this country, this fact constitutes title sufficient
to acquire the dominion of the realty, for prescription by virtue of
possession of real property for more than thirty years is a positive
obstacle that an adverse claimant cannot overcome by the best title of
ownership known to law (arts. 446, 447, 1959 and 1960, Civ. Code).

It has not been shown in the instant proceedings that the predecessors of
the applicant were or the applicant himself is now in possession of the
whole tract of land situated in Cataguintingan; wherefore, once proven
that the said 97 objector-appellants have been holding and hold now
possession, as owners, for a period of more than thirty years, some for

88
sixty (counting the possession of their predecessors), it would be
improper to refuse to recognize the right acquitted by these 97 objectors,
by virtue of the long period of prescription, especially when the applicant
himself by stipulation found himself compelled to admit such long
possession enjoyed by 78 of them. For this reason the applicant's title
cannot prevail as a better title against the right of this extraordinary
prescription, acquired over their respective properties, by these 97
objector-appellants.

The applicant's title can only prevail against the 9 objector-appellants

who have not satisfactorily proven that they have acquired the ownership
in the parcels of land they respectively hold, because they have not duly
proven that they have been in possession thereof as owners and for the
period of time prescribed by law. Therefore, not having acquired title of
ownership therein by prescription, the parcels of land in Cataguintingan
sought to be registered by the applicant who for this purpose presented a
title by which he lawfully acquired from the Government the ownership of
the said tract of land awarded to him by the former sovereignty, although,
in accordance with law, the rights held in the parcels of land comprised
within this tract, held under title of ownership by their actual occupants
who have lawfully acquired possession thereof by prescription, must be
respected (arts. 438, 446, 447, and 448, Civ. Code).

The applicant has applied for the registration of 573 hectares, 89 ares,
and 52 centares of land in the said sitio of Cataguintingan, barrio of
Anduyan, municipality of Tubao (formerly only a barrio of the pueblo of
Agoo), Province of La Union. Of this extensive tract of land, 93 hectares,
89 ares, and 52 centares are public land not included within the
89
perimeter of the land awarded by the Spanish government to Froilan
Sabugo, the first of the applicant Kincaid's predecessors in interest. This
applicant now seeks to register not only that land awarded to Sabugao as
above stated, comprising 480 hectares, but also the said 93 odd
hectares, which two tracts make the aggregate area of 573 hectares, 89
ares, and 52 centares.

As, according to the evidence of record, the applicant's petition for

registration may be granted only with respect to less than on-half of the
said aggregate area of 573 and odd hectares of land, we shall now
specify the number of hectares that should be excluded in favor of the
Government, as well as the actual holders who are entitled to be
considered owners of their respective properties. Said land comprises:

1. Six hectares, 43 ares, and 75 centares, actually held by Santiago

Betia, according to the stipulation between the parties.

2. Two parcels of land containing 5 hectares, 35 ares, and 50

centares, actually held by the brothers Feliciano, Candido and
Cenon Ballejo.

3. The parcel of land of 2 hectares, 18 ares, and 75 centares,

actually held by the brothers Mariano and Esteban Orencia, by
virtue of applicant's relinquishment.

4. There should also be excluded from the registration 315

hectares, 60 ares, and 71 centares of land, the aggregate area of
the parcels held by the 97 objectors who have proven their
respective rights and whose rights were recognized by the

90
 applicant, together with the parcel, acquired by the Government for
school purposes, containing 54 ares and 12 centares. It is to be
noted that the measurement of the parcels of land of 16 of the
objectors are those of the circumference which, reduced to hectares
and barring error, are deemed to be equivalent to 23 hectares, 85
ares, and 44 centares, and are comprised within the said aggregate
total area of 315 hectares, 60 ares, and 71 centares that must be
excluded, as aforesaid, from the 573 and odd hectares of land that
are the subject matter of the application.

5. There should also be excluded from the land sought to be

registered, the land of Basilio Aspillaga and the 12-meter strip that
forms the Tubao-Rosario Road, as ascertained by its survey and
boundary marks, in accordance with the stipulations between the
parties.

So that, from the fact hereinabove stated, it follows that 233 hectares, 76
ares, and 69 centares, barring errors, should be adjudicated to the
applicant Kincaid, and should be entered in the property registry. In this
total are included the parcels of land of the 9 objectors who have not
furnished proof of their respective rights therein.

The applicant's petition for the registration of the said 233 hectares, 76
ares, and 69 centares is granted, inasmuch as, in respect thereto, no one
has come forward with any adverse claims and inasmuch as the 9
objectors who filed adverse claims for certain parts of the said land did
not present satisfactory proof. Therefore, by reason of his title the
applicant must be considered as the lawful owner of the said 233

91
hectares, 76 ares, and 69 centares that are not rightfully held by anyone
else. It is to be noted that, by stipulation, the lands of Tomas
Montemayor, Victoriano Olarte, and Guillermo Milo were likewise
excluded, as not being comprised within the land in question.

For the foregoing reasons, it is proper to hold, as we hereby do that (1)

the adverse claims filed by Pedro Estoparre, Eustaquio Estoparre,
Alejandro Estoparre, Servando Estoparre, Inocencio or Tiburcio
Madriaga, Alberto Cabututan, Doroteo Milo, Inocencio Dacanay and
Bernardo Dacanay for certain portions of the land comprised in the
application for registration are denied, as these claimants have not
proved their respective rights therein.

(2) We likewise hold that there shall be excluded from the application for
registration, sought in these proceedings, the parcels of land specified in
the second preceding paragraph of this decision designated under Nos.
1, 2, 3, 4, and 5 in which specific mention is made of the number of
hectares of land to be excluded from the applicant's claim.

(3) After declaration of general default, the adjudication and registration

in the property registry of the said 233 hectares, 76 ares, and 69
centares of land shall be made in behalf and in the name of the applicant,
William Abraham Kincaid, who must pay to the Government the sum of
P147.58 for the excess in the area of the land he seeks to register, and,
at the applicant's expense, a new plan of the adjudicated land shall be
made by the Bureau of Lands, from which plan there shall be excluded
the parcels of land specified in the five paragraphs mentioned in the
preceding paragraph.

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The judgment appealed from is affirmed in so far as it agrees with the
decision, and is reversed in so far as it does not. No special finding is
made as to the costs of both instances. So ordered.

93