In 1834 Juan Reed applied to and received from the Mexican [180 U.S. 362, 363] governor of California a grant of a tract of land. In 1854 his heirs petitioned the commission created by the United States for a confirmation of that grant. It was confirmed, the order therefor being in these words:
An appeal was taken therefrom to the district court of the United States, and the following order of confirmation was made on January 14, 1856: [180 U.S. 362, 364] 'This cause came on to be heard at a stated term of the court on appeal from the final decision of the board of commissioners to ascertain and settle the private land claims in the state of California under the act of Congress approved on the 3d of March, A. D. 1851, upon the transcript of the proceedings and decision of the board of commissioners, and the papers and evidence on which the said decision was founded, and it appearing to the court that the said transcript has been duly filed according to law, and counsel for the respective parties having been heard, it is by the court thereby ordered, adjudged, and decreed that the said decision be, and the same is hereby, in all things, affirmed, and it is likewise further ordered, adjudged, and decreed that the claim of the appellees is a good and valid claim, and that the said claim be, and the same is hereby, confirmed to the extent and quantity of 1 square league, being the same land described in the grant and of which the possession was proved to have been long enjoyed. Provided, that the said quantity of 1 square league now confirmed to the claimants be contained within the boundaries called for in the said grant and the map to which the grant refers, and if there be less than that quantity within the said boundaries, then we confirm to the claimants that less quantity.'
No appeal was taken from this order of confirmation, and it, therefore, became final. In 1858, a survey was ordered by the Land Department, and was made by a surveyor, named Mathewson, who surveyed 1 square league as being the full amount of the tract confirmed to the petitioners. The petitioners claimed that their grant was of a tract described by metes and bounds, and not of a given quantity within exterior boundaries, and after some controversy between them and the Land Department the latter recognized their claim, set aside the Mathewson survey, and ordered a new survey. This was made in 1871. It was confirmed by the Land Department, and has never been questioned therein. Thereupon a patent was issued to the petitioners, conveying the tract by metes and bounds as described in the order of the commission and shown by the last survey.
The tract in controversy is outside the limits of both surveys. Prior to the last survey Ebenezer Wormouth, the testator of [180 U.S. 362, 365] defendant in error, settled upon the tract in controversy, and thereafter made application to enter the tract as public land of the United States. A contest was had between such testator and one Samuel R. Throckmorton, claiming title from the heirs of Reed, the original grantee, first in the local land office, thence carried by appeal to the General Land Office, and thereafter to the Secretary of the Interior. The right to enter was sustained and a patent issued. Thereafter this action against the plaintiffs in error holding under Throckmorton was instituted in the superior court of the county of Marin, California, which, at first a mere action in ejectment, became by the pleadings subsequently filed a suit in equity to try title. The decree in the trial court was in favor of Wormouth, which was affirmed by the supreme court of the state (125 Cal. 316, 58 Pac. 20), and thereafter this writ of error was sued out.
In the trial court the question of title was submitted to the court and findings of fact made. Among them were the following:
The opinion of the supreme court rested upon the single proposition that the land department had jurisdiction of the controversy, and that its judgment was founded upon disputed questions of fact, and, therefore, was not subject to review in the courts.
[Mr. George W. Monteith for plaintiffs in error.
Messrs. C. K. Bonestell and Alfred L. Black for defendant in error.
Mr. Justice Brewer delivered the opinion of the court:
The plaintiffs in error base their right to the land in controversy upon this provision of the act of July 23, 1866 (14 Stat. at L. 218, 220, chap. 219, 7):
Every branch of the Land Department, from the register and receiver of the local land office up to the Secretary of the Interior, decided against the contention of Throckmorton (under whom the plaintiffs in error claim), holding that the land was not within the exterior boundaries of the grant, and that Throckmorton was not a purchaser in good faith from the grantee or his assigns. The trial court, referring to the decision of the Land Department, found that it was not based upon any matter of law, but upon questions of fact in respect to which there was [180 U.S. 362, 369] conflicting testimony. Further, that court upon the testimony adduced before it found in accord with the conclusions of the Land Department, and the supreme court of the state has sustained such finding.
Certain propositions may be stated which compel an affirmance of the judgment of the supreme court of the state. And first, 'it is a well- settled rule of law that the power to make and correct surveys of the public lands belongs exclusively to the political department of the government, and that the action of that department, within the scope of its authority, is unassailable in the courts except by a direct proceeding.' Knight v. United Land Asso. 142 U.S. 161, 176 , 35 S. L. ed. 974, 979, 12 Sup. Ct. Rep. 258, 262.
The grant was one not of quantity, but by metes and bounds, and the final survey, approved by the Land Department, determined conclusively the exterior boundaries of that grant. The land in controversy was not within those boundaries. Counsel for plaintiff in error assumes that the correctness of this survey may be litigated in an action between private parties. He insists that the last survey, which he says was a mere compilation, and not an actual resurvey, included a large body of lands on the one side which were not, in fact, within the boundaries of the tract of which juridical possession had been given, and excluded on the other side a large body which were within such boundaries and which included the lands in controversy. If his contentions were sustained to the full extent the result would be to enlarge the boundaries of the grnat on the one side without reducing them on the other, and so increase the area of the grant several hundred acres above its admittedly true size. In other words, the United States, which obtained by the treaty of cession full title to all lands not subject to private grant, would be deprived of these extra acres, undoubtedly their property. He has mistaken his remedy. It was by application to the Land Department to correct the survey, and failing to secure correction there, a direct proceeding in the courts in which the Reed heirs should have been parties, and in which they could have been heard to defend the survey and patent.
Again, the determination of the Land Department in a case within its jurisdiction of questions of fact depending upon conflicting [180 U.S. 362, 370] testimony is conclusive, and cannot be challenged by subsequent proceedings in the courts. Burfenning v. Chicago, St. P. M. & O. R. Co. 163 U.S. 321, 323 , 41 S. L. ed. 175, 176, 16 Sup. Ct. Rep. 1018, and cases cited in the opinion; Johnson v. Drew, 171 U.S. 93 -99, 43 L. ed. 88-91, 18 Sup. Ct. Rep. 800.
The Land Department found and adjudged not only that the land in controversy was outside the exterior boundaries of the grant, but also that Throckmorton was not a purchaser in good faith. Both of these findings were matters of fact and based upon the testimony. No proposition of law controlled such findings, and no error of law is apparent. Both questions of fact were determined by the Land Department adversely to the plaintiffs in error, and that determination concludes the courts. Counsel insists that there was no conflicting testimony. He ignores the survey which is in itself evidence, and that of a most persuasive kind. There are many things which a surveyor sees and finds in making a survey which are not and cannot be reproduced on paper, and which yet guide him, and wisely guide him, in the lines he runs. So that, even in a case in which a survey is a proper subject of attack, it can be overthrown only upon satisfactory evidence of mistake. It cannot be ignored, and the only matter considered be the tendency and significance of the oral testimony of witnesses as to lines, metes, and bounds.
The trial court, in addition to its findings in reference to the proceedings in the Land Department, found as independent matters of fact, that the land in controversy was outside the exterior boundaries of the grant, and that Throckmorton was not a bona fide purchaser. The supreme court of the state sustained those findings. Now, in proceedings in this court to review the action of state courts we do not enter into a consideration of questions of fact. We accept the determination of those courts in such matters as conclusive, and inquire simply whether there have been errors of law. Dower v. Richards, 151 U.S. 658 , 38 L. ed. 305, 14 Sup. Ct. Rep. 452; Egan v. Hart, 165 U.S. 188 , 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Hedrick v. Atchison, T. & S. F. R. Co. 167 U.S. 673, 677 , 42 S. L. ed. 320, 322, 17 Sup. Ct. Rep. 922.
For these reasons the judgment of the Supreme Court of California is affirmed.