Colorado Company v. Commissioners
95 U.S. 259 (1877)

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U.S. Supreme Court

Colorado Company v. Commissioners, 95 U.S. 259 (1877)

Colorado Company v. Commissioners

95 U.S. 259

ERROR TO THE SUPREME COURT

OF THE TERRITORY OF COLORADO

Syllabus

Where an act of Congress confirms a Mexican grant of five hundred thousand acres, to the extent of eleven square leagues, to be selected within the limits of the claim, according to the lines of the public surveys which the Commissioner of the General Land Office is directed to cause to be run for the proper location of the quantity confirmed, and provides that the confirmation shall not be legally effective until payment by the confirmee of the expense of so much of the surveys as inure to his benefit,

Held:

1. That until such payment, the confirmee has no title to the eleven square leagues selected pursuant to the act, nor a perfect equitable right to such title, and they are not subject to taxation.

2. That Congress, after the surveys and plats shall have been perfected, may enforce such payment by a sale of the lands, a resumption of the grant, or other appropriate mode.

This suit was brought by the plaintiff in error in the District Court within and for the County of Pueblo to recover taxes paid by it under protest, July 1, 1874, which had been assessed for the year 1873, on certain lands situate in that county. The judgment rendered in its favor by that court having been reversed by the supreme court of the territory, the cause was removed here by writ of error.

Manuel Armijo, governor of New Mexico, granted, Dec. 1, 1843, to Gervacio Nolan, lands in a part of that province now constituting Pueblo County, Colorado, which cover by estimate five hundred thousand acres, bounded by mountains and natural objects.

Congress passed an Act, approved July 1, 1870, 16 Stat. 646,

Page 95 U. S. 260

entitled "An Act to confirm the title of the heirs of Gervacio Nolan, deceased, to certain lands in the Territory of Colorado." The first section confirmed the grant to the extent of eleven square leagues. The remaining sections are as follows:

"SEC. 2. That the exterior lines of said claim of eleven leagues, as confirmed by this act, shall be adjusted according to the lines of the public surveys as near as practicable, but in a compact form, and the claims of all actual settlers falling within the limits of the located claim above referred to shall be adjusted to the extent which will embrace their several settlements upon their several claims being established either as preemptions or homesteads according to law, and for the aggregate of the arears [areas] of claims so established under the preemption or homestead acts, the heirs of said Nolan, or their legal representatives, shall be entitled to locate a like quantity of public lands, not mineral, according to the lines of the public surveys, and not to exceed one hundred and sixty acres in one section, provided that such location shall be made within the bounds of the original grant by the order of Cornelio Vigil to Gervacio Nolan."

"SEC. 3. That it shall be the duty of the Commissioner of the General Land Office to cause the lines of the public surveys to be run in the regions where a proper location would place the said Nolan claim, and the expense of the same shall be paid out of any moneys in the treasury not otherwise appropriated, but before the confirmation provided for by this act shall become legally effective, the heirs of the said Gervacio Nolan or their legal representatives shall pay the cost of so much of said surveys as inures to their benefit respectively, and that all actual settlers whose claims may be adjusted as valid shall have a right to enter their improvements by a strict compliance with the preemption or homestead laws."

"SEC. 4. That upon the adjustment of said claim of the heirs of Gervacio Nolan, according to the provision of this act, it shall be the duty of the surveyor general of the district to furnish properly approved plats to said claimants, or their legal representatives, which shall be evidence of title, the same to be done according to such instructions as may be given by the Commissioner of the General Land Office, provided, however, that when said lands are so confirmed, surveyed, and patented, they shall be held and taken to be in full satisfaction of all further claims or demands against the United States."

"SEC. 5. That immediately upon running the lines provided for in the second of this act, the surveyor general of the district

Page 95 U. S. 261

shall notify the said heirs of Gervacio Nolan or their legal representatives of the fact of such survey's being made, and said claimants shall, within three months after notice of such survey, select and locate their said claims according to the provisions of this act, and shall within said time furnish the surveyor general with a description of such location specifying the lines of the same, and the party failing to make such selection and location, in such manner and within such time, shall be deemed and held to have abandoned their claim, and their rights and equities under this act shall cease and terminate."

The plaintiff in error acquired all the rights and title of the confirmees to the lands, and, a survey of them having been made pursuant to the act, selected them within the required time and in due form, to the extent, as was then believed, of eleven square leagues. A plat and descriptive list, subject to the revision of the Land Department at Washington, were prepared, and on April 27, 1872, delivered to the surveyor general of the territory. Entries of portions of the selected lands by claimants under the homestead and the preemption laws, amounting to six thousand five hundred and sixty-five acres, were subsequently approved by the Secretary of the Interior, and the plaintiff was allowed by the Commissioner of the General Land Office to select, by way of indemnity, other lands within the limits of the original grant. An error was also committed by including nine hundred and twenty acres in excess of eleven square leagues, as, owing to the fact that at the time the plat and list were made the meander line had not been run along the south bank of the Arkansas River, where a portion of the lands were situate, it was impossible to ascertain the exact area of the selected tract. The nine hundred and twenty acres were withdrawn March 9, 1874. On the 30th of January of that year, other lands were selected in lieu of those taken by homestead and preemption claimants and a descriptive list of them delivered to the surveyor general, but that officer has not furnished either a statement of the cost of the survey or the approved plats required by the act, and the plaintiff in error has not paid any part of such cost.

The taxes in question were duly assessed, if the lands embraced within the preliminary selection of eleven square leagues,

Page 95 U. S. 262

after deducting therefrom the nine hundred and twenty acres so withdrawn, and the six thousand five hundred and sixty-five acres so entered, were on the first day of May, 1873, subject to taxation.

Page 95 U. S. 264

MR. JUSTICE MILLER delivered the opinion of the Court.

This is a writ of error to the Supreme Court of the Territory of Colorado to bring up a judgment holding a large body of real estate owned by plaintiffs liable to taxation under the laws of that territory.

The ground on which the exemption from taxation is asserted is that the United States retains such an interest in the land that it cannot be taxed under the authority of that territory, and we are of opinion that the claim is well founded.

In the year 1843, Governor Armijo of New Mexico made a grant of land to Gervacio Nolan, bounded by monuments and natural objects, containing about five hundred thousand acres.

Upon a report made to Congress after the United States acquired the country in which this land was situated, that body was of opinion that the grant was good only to the extent of Governor Armijo's power under the laws of Mexico -- namely eleven square leagues -- and it passed the act of July 1, 1870, 16 Stat. 646, confirming the grant to that extent.

But as there was no particular designation of these eleven leagues by which to determine their precise location, and as many persons had settled on lands within the boundary of the original grant, Congress declared in that act that the eleven leagues should be adjusted in a compact form, as near as possible within said boundary, and according to the lines of the

Page 95 U. S. 265

public surveys. That the claims of all actual settlers falling within the eleven leagues so selected should be allowed, and that for the deficiency thus made in the eleven leagues the grantees might select other lands within the bounds of the original grant.

It was made the duty of the Commissioner of the General Land Office to have all the necessary surveys to carry these provisions into effect made at the expense of the government in the first instance; "but," it is added,

"before the confirmation provided for by this act shall become legally effective, the heirs of said Gervacio Nolan, or their legal representatives, shall pay the cost of such surveys as inure to their benefit respectively."

And by the next section it is provided that when all this is done, the surveyor general shall furnish approved plats to the claimants, which shall be their evidence of title. The plats had not been made nor the expenses paid when this tax was assessed.

We are of opinion that the clause above quoted suspends the vesting of title in the claimants, or of any perfect equitable right to the title, until the expenses of the surveys are paid, and that this was done intentionally, to secure that payment. If not paid after a reasonable time subsequent to the perfecting of the surveys and plats, there remains in Congress the power to enforce that payment by a sale of the lands, a resumption of the grant, or any other appropriate mode.

A sale of the land under territorial authority, held by this Court to be a sale on a valid tax, might very seriously embarrass the assertion of the rights of the government in the premises. If the tax had been levied on the equitable claim of these holders under Nolan, whatever that is, the case might be different. But this case shows that it is the land which is taxed, and the sale would convey the title or nothing.

We are of opinion that Railway Company v. Prescott, 16 Wall. 603, and Railway Company v. McShane, 22 Wall. 444, govern this case, and that the learned judge who delivered the opinion in the supreme court of the territory, in holding otherwise, overlooked the express provision in the act of Congress, supra, that the confirmation was not to be effective until these expenses should be paid.

Page 95 U. S. 266

We agree with what he has said, that the title when perfected relates back to and is founded on the grant by Mexico; but since it was imperfect, and no particular land passed under the grant until selections were made under that act, Congress had a right to annex to the confirmation the condition above recited.

Judgment reversed, with directions to the Supreme Court of the State of Colorado, to whose jurisdiction the case is now remitted, to affirm the judgment of the District Court for the County of Pueblo.

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