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In 1854 congress passed 'An act to establish the offices of surveyor- general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes.' 10 Stat. 308. Sections 8 and 9 of this law read as follows:
Under these provisions Preston Beck, Jr., a citizen of the United States, and a resident of the territory of New Mexico, presented his petition to the surveyor general on May 10, 1855, to be recognized as the legal owner in fee of a certain tract of land lying in the county of San Miguel, in that territory, 'known as the Hacienda de San Juan Bautista del Ojito del Rio de las Gallinas,' and bounded 'on the north by the landmarks of the sitio of Don Antonio Oritz and the mesa of the aguage de la Yegua, on the south by the river Pecos, on the east by the mesa of Pajarito, on the west by the point of the mesa of the Chupaines. ... And the [158 U.S. 240, 242] said Preston Beck, the 'present claimant,' claims a perfect title to said land by virtue of a grant made on the twenty-third day of December, in the year one thousand eight hundred and twenty-three, by Bartolm e Baca, governor and superior political chief of the province of New Mexico, by and with the advice and approbation of the provincial deputation of the said province of New Mexico, to Juan Estevan Pino, a citizen of New Mexico, whichs aid grant was made as aforesaid by authority of the laws, usages, and customs of the republic of Mexico in force at the time, and of the laws and regulations of Spain which were declared and recognized to be in force and effect at that time in the republic of Mexico. ...
The controversy initiated before the surveyor general by the filing of this petition was decided by him in 1856. His opinion recites the claim, the grant made, the fact that the grantee was put in possession by the alcalde, the acquisition by Preston Beck Jr., from the grantee or heirs of all their rights, states that a hearing was had between Beck as owner of the grant and a large number of settlers, and continues:
On June 21, 1860, congress passed an act, of which the first section reads as follows:
In 1885, George W. Stoneroad, the person thus conceded to be the owner of one-third of the original grant, brought an action of ejectment against James P. Stoneroad, alleging that he was entitled to the possession of the Preston Beck grant, and that the defendant had illegally possessed himself of a portion thereof. The defendant pleaded not guilty. At the trial of the case the parties entered into the stipulation, in which the facts, as above stated, were admitted, and one clause of this stipulation, in addition, says, in reference to the act of congress, 'said confirmation being absolute, and without any condition whatever, and to the extent of the boundaries given in the original muniments o the title, as the same are correctly copied in said Exhibit A'; the 'Exhibit A' referred to being the original grant, describing the property as above mentioned. Besides the admissions which were thus made, oral evidence was introduced, tending to show that the defend- [158 U.S. 240, 246] ant, James P. Stoneroad, possessed two tracts of land outside of the lines of the survey made by the government, but, as asserted, within the limits of the designated boundaries of the grant. At the trial the defendant asked the court to give the following instruction:
This instruction was refused, and a verdict was rendered in favor of the plaintiff. The defendant, after an ineffectual attempt to obtain a new trial, took the case by writ of error to the supreme court of the territory. There the judgment below was affirmed, and the defendant then brought the case here by error.
C. H. Gildersleeve, for plaintiff in error.
John H. Knaebel and T. B. Catron, for defendant in error.
Mr. Justice WHITE, after stating the case, delivered the opinion of the court.
The first and fundamental question is, did the act of congress of 1860, which confirmed the claim of Preston Beck, Jr., as recommended by the surveyor general, provide for, or by necessary intendment contemplate that, a survey of the grant should be made in order to separate the land embraced within it from the public domain? And we are not relieved from [158 U.S. 240, 247] the consideration of this question by the admission made by the parties to the suit that the confirmation was 'absolute, and without any condition whatever.' This admission is in no way the concession of a fact, but is a declaration by the suitors of their opinion on a matter of law. Whether the act of congress was absolute or conditional; whether it required, even though it absolutely confirmed the title, that a survey should be made to determine the extent of the property,-depends upon the terms of the law. The report of the surveyor general who passed upon the claim states, among the reasons for his recommendation to congress: 'The boundaries set forth in the granting decree and natural points, well known to all the community, and in the absence of any survey, which was not required in the grant, are amply sufficient to designate such portions of land as was intended to be severed from the public domain.'
In his recommendation to congress, however, which is practically the decretal part of his opinion, he says: 'The congress of the United States is respectfully recommended to cause a patent to be issued to the said Preston Beck, Jr., by the proper department, and cause the same to be surveyed.' It was this recommendation which was acted upon by congress.
We think the confirmatory act of 1860 by necessary implication contemplated that the confirmed grant should be thereafter surveyed, and that such survey was essential for the purpose of definitely segregating the land, to which the right was confirmed, from the public domain, and thus finally fixing the extent of the rights of the owners of the grant. To hold otherwise would be to conclude that congress had confirmed the claim, and yet deprived the claimant of all definite means of ascertaining the extent of his possessions under the confirmed title. In view of the fact that the surveyor general's report so wed the importance of the grant, and that it had never been surveyed, we think it must be considered that congress intended that it should be surveyed, in order that its boundary lines might be accurately fixed, before the issue of a patent. The grant was an unconfirmed Mexican grant, and therefore, before it could take a definite and conclusive shape, [158 U.S. 240, 248] so far as the United States was concerned, it required action and approval on the part of this government. As said by this court, in speaking of grants within this territory of New Mexico, in the case of Astiazaran v. Mining Co., 148 U.S. 80 , 13 Sup. Ct. 457: 'Undoubtedly, private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties, belonged to the political department of the government, and congress might either itself discharge that duty or delegate it to the judicial department. De la Croix v. Chamberlain, 12 Wheat. 599, 601, 602; Chouteau v. Eckhart, 2 How. 344, 374; Tameling v. Emigration Co., 93 U.S. 644 , 661; Botiller v. Dominguez, 130 U.S. 238 , 9 Sup. Ct. 525.'
Now, at the time of the passage of this confirmatory act, and for a long time prior thereto, the general laws of the United States confided to certain administrative officers the duty of surveying not only the public lands, but also private land claims. Rev. St. 441-453. The practice of the United States in dealing with the public domain and all governmental grants of land is to survey and issue patent. For this purpose, in the proper administrative branch of the government, accurate and efficient machinery, accompanied with full remedial process for the correction of error, is provided. In speaking of the general policy of the law as to the surveying of the public domain, including private land grants, this court, through Mr. Justice Lamar, in Knight v. Association, 142 U.S. 161 , 12 Sup. Ct. 258, said:
It is unquestioned that shortly after the confirmation of the grant a survey was made, and that the land in possession of the defendant below is outside of its lines. The plaintiff's case, therefore, necessarily rests upon a disregard of the official survey. In order to sustain his position, two legal propositions are advanced: First, that the holders of the grant are not bound by the survey, for the reason that it was made without notice to them, and because at the time of the survey some of them were minors and some were under coverture; and, second, that the survey did not conform to the boundaries of the grant, and therefore should be judicially corrected. Both these propositions are untenable. The first attacks the survey [158 U.S. 240, 251] as a whole, upon the theory that notice was an essential prerequisite, and that coverture and minority were obstacles to the right of the government to survey the claim as confirmed, for the purpose of ascertaining the extent of the grant, and in order to separate it from the public domain. It is unnecessary to point out the fallacy which underlies this proposition, because, even if its correctness be conceded, the concession would be fatal to the plaintiff's case. As we have seen, a survey was necessary. Now, if the survey was illegal, and is to be treated as not existing, then we are without the guidance provided by law for the purpose of ascertaining whether the land claimed from the defendant was within or without the area of the grant. In other words, if it be conceded that there is no survey, the plaintiff is without right to relief, since a survey was essential to carry out the confirmatory act. The seo nd proposition is equally unsound. It presupposes the existence in the courts of the United States of a power to survey the public domain, and thus discharge a function confided by law to an administrative branch of the government. In West v. Cochran, 17 How. 403, this court, speaking through Mr. Justice Catron, said:
Considering the same subject in Knight v. Association, supra, speaking through Mr. Justice Lamar, the court said:
These views are particularly applicable to the case in hand, since the act providing for the office of the surveyor general for New Mexico authorizes him to examine and report, under such rules and regulations as the secretary of the interior may adopt, and requires that his report shall be transmitted to congress for its action. Even if the general rule were otherwise, these provisions necessarily preclude judicial cognizance of the subject-matter, and confine it to the supervision of the political and administrative departments of the government. And the terms of the act become especially cogent when considered in connection with antecedent legislation under similar circumstances. They differ materially from the language of the measures previously adopted by congress for confirming the outstanding titles in Louisiana, Florida, and California. In those cases the statutes, while creating administrative officers for the purpose of ascertaining and passing on the grants, expressly gave a right to the parties to invoke the aid of the courts, in order that the correctness of the actions of the officers named might be judicially determined. It was under such provisions that many of the cases referred to and relied on by the defendant in error were decided. The absence of a provision in the present statute for a judicial review of the surveyor general's action indicates the intention of congress to reserve to itself the right to pass upon such claims. Astiazaran v. Mining Co., supra. Hence the many authorities cited by the defendant in error have no application. Thus U. S. v. Arredondo, 6 Pet. 691; Mitchel v. U. S., 9 Pet. 711; and Fremont v. U. S., 17 How. 542,-were the results of [158 U.S. 240, 253] an express provision giving parties an ultimate recourse to the courts. Langdeau v. Hanes, 21 Wall. 521, involved no assertion of a power in the courts to destroy a survey duly made. There the survey had been made, and was not assailed. The finding of the court below in that case, which was here affirmed, was as follows: '(1) That the act of confirmation of 1807 was a present grant, becoming so far operative and complete to convey the legal title when the land was located and surveyed by the United States in 1820, as tha an action of ejectment could be maintained on the same.' In Whitney v. Morrow, 112 U.S. 693 , 5 Sup. Ct. 333, there had been an unquestioned segregation of the property after the confirmation by the commissioners under a special act of congress, by long-continued actual possession.
Nothing in the record indicates that the defendant in error has availed himself of the legal privilege of appeal to the secretary of the interior, and, of course, his right to do so is not concluded by any expression of opinion which we have made. Our conclusion is that the instruction requested by the defendant was wrongfully refused by the lower court, and the judgment of the supreme court of the territory of New Mexico, which upheld the action of the court below, was erroneous. It is therefore ordered that the judgment be reversed.
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Citation: 158 U.S. 240
Docket No: No. 11
Decided: May 20, 1895
Court: United States Supreme Court
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