On May 19, 1888, the defendant in error, as plaintiff, commenced this action in the circuit court of the United States for the district of Colorado to recover the possession of a cer- [158 U.S. 253, 254] tain tract of land. After answer, the case came on for final trial on October 10, 1890. The verdict and judgment were in favor of the plaintiff, and the defendants allege error.
The facts disclosed by the testimony are substantially these: On May 19, 1879, a patent was issued by the United States to Charles Beaubien and Guadalupe Miranda, their heirs and assigns, for a tract of land known as the 'Maxwell Land Grant.' This patent recites that on January 11, 1841, the territorial governor of New Mexico (that being at the time a part of the Republic of Mexico) made a grant to Beaubien and Miranda of a tract of land with specified boundaries; that on June 21, 1860, congress passed an act confirming such grant, with the boundaries therein specified; that on December 16, 1878, the surveyor general of the United States for the territory of New Mexico returned to the land department at Washington a survey officially made, giving in detail the boundaries as established by that survey; and in terms 'grants to tract of land embraced and described in the foregoing survey.' The land in controversy is within the limits of the survey, and thus within the terms of the patent. In 1871 the regular surveys of public lands in the southern part of Colorado were extended so as to include this land, which, by those surveys, was marked and described as the 'west half of the southeast quarter, and the northeast quarter of the southwest quarter, and the southwest quarter of the northeast quarter of section 20, township 33 south, range 68 west of sixth principal meridian.' On April 6, 1874, Richard D. Russell, the ancestor of defendants, applied at the local land office to enter this tract under the homestead laws, and on September 5, 1876, proved up, and received his final receipt therefor.
Ira W. Buell, for plaintiffs in error.
Chas. E. Gast and Frank Springer, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. [158 U.S. 253, 255] The Maxwell land grant is no stranger to this court. After the issue of the patent a bill was filed by the United States to set it aside on the ground of error and fraud, and after an exhaustive investigation, both in the circuit and this court, a decree was entered, dismissing the bill. Maxwell Land-Grant Case, 121 U.S. 325 , 7 Sup. Ct. 1015; Id., 122 U.S. 365 , 7 Sup. Ct. 1271; Interestate Land Co. v. Maxwell Land-Grant Co., 139 U.S. 569, 580 , 11 S. Sup. Ct. 656, in which it was said:
See, also, Beard v. Federy, 3 Wall. 478; More v. Steinbach, 127 U.S. 70 , 8 Sup. Ct. 1067. The confirmation of this grant was made by act of congress of June 21, 1860 (12 Stat. 71). Whatever doubts might have existed before as to the limits or extent of the grant, were settled by that confirmation. Langdeau v. Hanes, 21 Wall. 521; Tameling v. Emigration Co., 93 U.S. 644 . The only claim of the defendants is one under the United States, arising on April 6, 1874, 14 years after the confirmation of the Maxwell land grant. It is therefore inferior and subordinate to that of the plaintiff.
In order to obviate that effect of this, the defendants offered to prove on the trial that the survey described in and upon which the patent was based was inaccurate, and that a correct survey would run the lines of the Maxwell land grant so as to exclude therefrom the tract in controversy. This testimony was rejected by the court, and this is the error complained of.
In the suit brought to set aside the patent, it was said by this court ( 121 U.S. 382 , 7 Sup. Ct. 1015):
The accuracy of the survey is, therefore, so far as the government is concerned, no longer open to inquiry. If, in a direct proceeding in equity brought by the United States to set aside the patent on the ground of error in the survey, the matter has become res adjudicata, it would seem that the patentee could not be compelled in every action at law between itself and its neighbors to submit the question of the accuracy of the survey as a matter of fact to determination by a jury. Nor is the matter open to such inquiry. A survey made by the proper officers of the United States, and confirmed by the land department, is not open to challenge by any collateral attack in the courts. By section 453, Rev. St., full jurisdiction over the survey and sale of the public lands of the United States, and also in respect to private claims of land, is vested in the commissioner of the general land office, subject to the direction of the secretary of the interior. In Cragin v. Powell, 128 U.S. 691, 698 , 9 S. Sup. Ct. 203, it was said by Mr. Justice Lamar, speaking for the court, and citing in support thereof a number of cases:
The case of Beard v. Federy, supra, is in point. In that case the effect of a patent to land in California, after confirma- [158 U.S. 253, 257] tion and survey, was before the court. The land, as in this case, was claimed under and old Mexican grant, and, while the proceeding for confirmation of such claims in California differed from that pursued in New Mexico, yet the result of the confirmation is the same. There, as here, was a statutory provision that the confirmation should not prejudice the rights of third persons, and some reliance was placed upont hat provision. It was said by the court, discussing this entire question (on page 492):
In More v. Steinbach, supra, the same propositions were affirmed, the court saying, on page 83, 127 U. S., and page 1067, 8 Sup. Ct.:
These authorities are decisive upon this question; and, in the nature of things, a survey made by the government must be held conclusive against any collateral attack in controversies between individuals. There must be some tribunal to which final jurisdiction is given in respect to the matter of surveys, and no other tribunal is so competent to deal with the matter as the land department. None other is named in the statutes. If, in every controversy between neighbors, the accuracy of a survey made by the government was open to question, interminable confusion would ensue. Take the particular case at bar; if the survey is not conclusive in favor of the plaintiff, it is not conclusive against it. So we might have the land- grant company bringing suit against parties all along its borders, claiming that, the survey being inaccurate, it was entitled to a portion of their lands; and as, in every case, the question of fact would rest upon the testimony therein presented, we should doubtless have a series of contradictory verdicts; and out of those verdicts, and the judgments based thereon, a multitude of claims against the United States for return of money erroneously paid for land not obtained, or for a readjustment of boundaries so as to secure to the patentees in some other way the amounts of land they had purchased.
It may be said that the defendants have the same right to rely upon h e regular surveys that the plaintiff has upon the survey of this special land grant. This is undoubtedly true, [158 U.S. 253, 259] but the survey is one thing and the title another. If sectional lines had been run through the entire limits of the Maxwell grant, it would not thereby have defeated the grant, or avoided the effect of the confirmatory act. A survey does not create title; it only defines boundaries. Conceding the accuracy of a survey is not an admission of title. So the boundaries of the tract claimed by defendants may not be open to dispute, but their title depends on the question whether the United States owned the land when their ancestor filed his homestead claim thereon. If at that time the government had no title, it could convey none.
It this connection it may be well to notice a distinction which interprets some dicta and decisions found in respect to the jurisdiction of courts over boundaries. Whether a survey as originally made is correct or not is one thing, and that, as we have seen, is a matter committed exclusively to the land department, and over which the courts have no jurisdiction otherwise than by original proceedings in equity. While, on the other hand, where the lines run by such survey lie on the ground, and whether any particular tract is on one side or the other of that line, are questions of fact which are always open to inquiry in the courts. In the case before us the offer was not to show that the land in controversy was one side or other of the line established by the survey. On the contrary, it was conceded that it was within the limits of the survey, and the offer was simply to show that that survey was inaccurate, and that the lines should have been run elsewhere; but this is not a matter for inquiry in this collateral way in the courts.
There was no error in the ruling of the circuit court, and its judgment is affirmed.