Shaw v. Kellogg
170 U.S. 312 (1898)

Annotate this Case

U.S. Supreme Court

Shaw v. Kellogg, 170 U.S. 312 (1898)

Shaw v. Kellogg

No. 154

Submitted February 28, 1898

Decided May 2, 1898

170 U.S. 312

Syllabus

In 1860, Congress granted a quantity of land in New Mexico in fulfillment of a grant of nonmineral lands made by Mexico before its transfer, the land to be selected by the grantees and the Surveyor General to survey and locate the land selected, and thus determine whether it was such as the grantees might select. The grantees made their selection, and after considerable correspondence as to the forms of the application and as to the evidence that the selected lands were not mineral lands, the Surveyor General, under the direction of the Land Department, approved the selection, and made the survey and location. The Land Department approved the survey, field notes and plat, and the parties were notified thereof, but no patent was issued, as Congress had not provided for such issue. The Land Department noted on its maps that this tract had been segregated from the public domain, and had become private property, and so reported to Congress, and that body never questioned the validity of its action. The grantees entered into possession, fenced the tract, and paid all taxes assessed upon it as private property by the state. Held that the action taken by the Land Department was a finality, and that the title passed, all having been done which was prescribed by the statute.

Such approval entered upon the plat in the Land Department by the Surveyor General, under the directions of that department, was in terms "subject to the conditions and provisions of section 6 of the Act of Congress approved June 21, 1860." Held that such limitation was beyond the power of executive officers to impose.

Page 170 U. S. 313

This was an action of ejectment brought in the Circuit Court of the United States for the District of Colorado on July 3, 1893, to recover possession of a certain tract in Saguache County, in the State of Colorado, described as follows:

"Section twenty-two (22), township one (1) north, one (1) east, according to the plat of said Baca Grant No. 4, as filed and recorded in the office of the county clerk and recorder of said Saguache County, and including in said section twenty-two, certain mineral-bearing property, designated by the defendant as the 'Eastern Star Mine,' with other mining lands adjacent thereto within said section twenty-two."

After answer, a trial was had before a jury, which resulted in a verdict under instructions of the judge for defendant. Upon this verdict, judgment was entered, May 22, 1895. Thereupon the plaintiff sued out a writ of error from the Circuit Court of Appeals for the Eighth Circuit. On March 30, 1896, that court certified certain questions. Upon an examination of those questions and after argument of counsel, this Court, on December 22, 1897, ordered a certiorari to bring up the entire record, and upon such entire record the case was submitted for consideration.

The premises in question are within the limits of the so-called "Baca Grant No. 4." The plaintiff is the owner of that grant, and the question presented is as to the validity and extent of his title. Prior to the Treaty of Guadalupe Hidalgo between Mexico and the United States, of date February 2, 1848, by which New Mexico and other territory in the southwest was ceded to this government, Mexico had made some quite extensive grants of tracts of land within the territory ceded. Since then, Congress has provided for the several portions of the ceded territory different modes of determining the validity and extent of those grants. By the Act of July 22, 1854, c. 103, 10 Stat. 308, the office of Surveyor General for the Territory of New Mexico was created, and, by section 8, it was made his duty to examine into all claims for lands within the limits of that territory, and to make full report thereof to Congress. In pursuance of this authority, the Surveyor General examined and reported upon various claims, and

Page 170 U. S. 314

on June 21, 1860, Congress passed an act, c. 167, 12 Stat. 71, confirming several of them. There were two opposing claimants for a large tract of land in the vicinity of the Town of Las Vegas. In settling the dispute between them, Congress enacted, in section 6:

"SEC. 6. And be it further enacted, that it shall be lawful for the heirs of Luis Maria Baca, who make claim to the said tract of land as is claimed by the Town of Las Vegas, to select instead of the land claimed by them, an equal quantity of vacant land, not mineral, in the Territory of New Mexico, to be located by them in square bodies, not exceeding five in number. And it shall be the duty of the Surveyor General of New Mexico to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them, provided, however, that the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer."

On July 26, 1860, a letter of instructions was issued by the Land Department to the Surveyor General of New Mexico in reference to these private land claims. In that letter, after directing a survey of the Las Vegas grant and a determination of the area thereof, the instructions were as follows:

"The exact area of the Las Vegas town tract having been thus ascertained, the right will accrue to the Baca claimants to select a quantity equal to the area of the town tract elsewhere in New Mexico of vacant land, not mineral, in square bodies not exceeding five in number."

"You will furnish them with a certificate, transmitting at the same time a duplicate to this office, of their right and the area they are to select in five square parcels. Should they select in square forms according to the existing line of the public surveys, the matter may be properly disposed of by their application duly endorsed and signed with your certificate designating the parts selected by legal divisions or subdivisions, and so selected as to form five separate bodies in square form. Then the certificate thus indorsed is to be noted on the records of the register and receiver at Santa Fe, and sent on here by those officers for approval. Should the Baca

Page 170 U. S. 315

claimants select outside of the existing surveys, they must give such distinct descriptions and connection with natural objects in their applications to be filed in your office as will enable the deputy surveyor, when he may reach the vicinity of such selections in the regular progress of the surveys, to have the selections adjusted as near as may be to the lines of the public surveys, which may hereafter be established in the region of those selections."

"In either case, the final condition of the certificate to this office must be accompanied by a statement from yourself and register and receiver that the land is vacant, and not mineral."

The survey made of the grant to the Town of Las Vegas showed an acreage of 496,446.96 acres, a certificate of which fact was given to the heirs of said Baca.

On December 12, 1862, the following selection was filed with the Surveyor General of New Mexico:

"Santa Fe, New Mexico, Dec. 12, 1862"

"To Surveyor General John A. Clark, Surveyor General of New Mexico: I, John S. Watts, attorney of the heirs of Luis Maria Baca, have this day selected, as one of the five locations belonging to the said heirs under the sixth section of the Act of Congress approved June 21, 1860, a tract of land in the Territory of New Mexico, described as follows:"

" Beginning at a point on the eastern edge of the valley of San Luis, where the thirty-eighth parallel of north latitude crosses the base of the snowy range, dividing the waters of the rivers Arkansas and Del Norte; thence east, along said parallel, four and one-half miles; thence south, along a meridian line, twelve miles, thirty-six (chains), and forty-four links distance; thence west at a right angle, twelve miles, thirty-six chains, and forty-four links distance; thence north, to the said specified parallel of latitude; thence east, with said parallel, to the place of beginning."

"I further state that the said land is entirely vacant, not claimed by anyone, is not mineral, but located for purposes

Page 170 U. S. 316

of arable and pastoral agriculture, and is within the limits of the Territory of New Mexico as established in the organic act. I hereby accordingly make application for the survey and location of the tract of land in accordance with the provisions of the above act of Congress."

"John S. Watts"

"Attorney for Heirs of Luis Maria Baca"

Prior to this time, the Territory of Colorado had been organized, and a portion of the Territory of New Mexico included within its boundaries, and the land described in this application was within the territory thus included in Colorado. The Surveyor General of New Mexico, on the receipt of this application, forwarded it to the Land Department at Washington and also transmitted a copy to the Surveyor General of Colorado. The Surveyor General of Colorado, writing on February 24 1863, to the Land Department, informed it of the receipt of the copy above referred to, and at the close of his letter made this statement:

"I suppose this selection has been made by Ex-Governor Gilpin, as he told me last summer he was in possession of one of the Baca 'floats,' and should locate it as this is located, for the reason that, in his opinion, it would cover rich minerals in the mountains."

In reply, the Land Department, on March 13, 1863, wrote as follows:

"It is necessary, before the application can be approved by this office, that it be accompanied by the certificates of the Surveyor General and the register and receiver that the land selected is vacant, and not mineral. This is in accordance with our instructions to the Surveyor General of New Mexico, extracts from which were furnished your office in our communication of June 7, 1862; especially should the character of the location as to minerals be carefully ascertained after the important statement of Ex-Governor Gilpin, which you communicated in your official letter to this office. Whenever you shall acquire good and satisfactory information that the lands included in this selection are vacant and not mineral, to enable

Page 170 U. S. 317

you to do, you will transmit to this office your official certificate setting forth these facts."

"You will also correspond with the register and receiver of Colorado, when they enter upon their official duties, communicating to them the substance of this communication, and call upon them to furnish their certificate, when able, under the same conditions that your own is to be furnished under, which, when received, you will forward to this office."

During the year 1863, Ex-Governor Gilpin, who had become the owner, or at least interested in this location, made application to the Surveyor General of Colorado for a survey of the tract. As the land was beyond the limits of the public surveys then completed, the Surveyor General made a contract with Deputy Surveyor A. Z. Sheldon for its survey, and forwarded the same to the Land Department for approval. On November 2, 1863, that office wrote to the Surveyor General disapproving of the contract, and adding:

"In your letter dated the 10th March last, transmitting the application of the attorney of said heirs for the location of this claim, you say:"

"I suppose this selection has been made by Ex-Governor Gilpin, as he told me last summer he was in possession of one of the Baca floats, and should locate it as this is located, for the reason that, in his opinion, it would cover rich minerals in the mountains."

"Upon receipt of your letter, you were expressly informed, under date of the 13th March, 1863, that before the application could be approved, it must be accompanied by the certificates of the Surveyor General and the register and receiver that the land is vacant, and not mineral, and I then took occasion to communicate the following explicit instructions:"

"Especially should the character of the locations as to minerals be carefully ascertained after the important statement of Ex-Governor Gilpin, which you communicate in your official letter to this office. Whenever you shall acquire good and satisfactory information that the lands included in the selection are vacant and not mineral, to enable you to do so, you will transmit to this office your official certificate setting forth these facts. "

Page 170 U. S. 318

"In our communication of the 7th June, 1862, you were also furnished with extracts from our instructions to the Surveyor General of New Mexico, referring to the location of these claims, in which it was plainly indicated that, should selections be made outside of the existing surveys, the survey thereof must be postponed until the vicinity is reached by the regular progress of the public surveys. You will be guided in your official acts by our instructions, which are full and explicit, in relation to the location of the claims referred to. The contract and instructions for the survey of the above-mentioned claim are herewith returned."

On December 12th, the Surveyor General wrote to the land office a letter containing this statement:

"Sir: I have the honor to acknowledge the receipt of your letter of the second of November last disapproving of the contract for the survey of grant No. 4 of the floats belonging to the heirs of Luis Maria Baca."

"I herewith transmit my certificate that the lands are 'not mineral, and are vacant.' You refer to a letter of the former Surveyor General of this district, in which he says that he supposes that this location was made by Mr. Gilpin 'for the reason that, in his opinion, it would cover rich mineral lands.' I do not believe that at the time Mr. case wrote that letter, he had the least idea that the float as located covered any mineral lands. I have signed the accompanying certificate partly from my own knowledge of the country, but mostly for the following reasons:"

"1st. The discoveries of gold thus far go to show that the gold lands of Colorado commence at the base of Long's Peak, and extend in a course about 30

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