A suit may be brought by the United States in any court of
competent jurisdiction to set aside, cancel, or annul a patent for
land issued in its name on the ground that it was obtained by fraud
or mistake.
The initiation and control of such a suit lies with the Attorney
General as the head of one of the Executive Departments.
But the right to bring such a suit exists only when the
government has an interest in the remedy sought by reason of its
interest in the land, or the fraud has been practiced on the
government and operates to its prejudice, or it is under obligation
to some individual to make his title good by setting aside the
fraudulent patent, or the duty of the government to the public
requires such action.
When it is apparent that the only purpose of bringing the suit
is to benefit one of two claimants to the land, and the government
has no interest in the matter, the suit must fail.
In the case before us, the alleged fraud for which it is sought
to annul the patent is in the survey of a confirmed Mexican grant,
on which the patent was issued, and it is charged that at the time
the survey was made, the Commissioner of the General Land Office,
the Surveyor General for California, the chef clerk of the latter's
office, and the deputy who made the survey, were interested in the
ownership of the grant, and by fraud made a false location of the
land to make it contain valuable ores of tin not within its limits
if fairly surveyed.
Of all the officers here charged, only Conway, the chief clerk,
had any real interest in the claim, and he notified the Surveyor
General of his interest and refused to have anything to do with the
survey; it is nowhere shown that he in any manner influenced the
location of the survey, and it is denied under oath by all who took
part in making it.
The fact is much relied on that some of these officers, after
the patent was issued, took shares in a joint stock corporation
organized to work the
Page 125 U. S. 274
mine, but there is no proof that the shares were a voluntary
gift, or were for services rendered in locating the survey, and the
fairness of the purchase of these shares after the patent issued is
sustained by affirmative testimony.
The fact that this survey was contested at every step by
interested parties, and was returned to the surveyor's office for
correction, was twice before that office and twice before the
Commissioner in Washington, and finally decided after six months'
consideration by the Secretary of the Interior, confirming the
decision of the Land Office, affords very strong evidence of the
correctness and honesty of the survey.
In the
Maxwell Land Grant Case, 121 U.
S. 325, we expressed ourselves fully in regard to the
testimony necessary to enable a court of chancery to set aside such
a solemn instrument as a patent of the United States. It was there
said
"that when in a court of equity it is proposed to set aside, to
annul, or to correct a written instrument for fraud or mistake in
the execution of the instrument itself, the testimony on which this
is done must be clear, unequivocal, and convincing, and that it
cannot be done upon a bare preponderance of evidence which leaves
the issue in doubt."
There is no such convincing evidence of fraud in the present
case.
Bill in equity to set aside a patent of public land. Decree
dismissing the bill, from which complainant appealed. The case is
stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The suit in this case, which was a bill in chancery filed April
10, 1883, in the Circuit Court for the District of California,
purports to be brought by the Attorney General on behalf of the
United States against the San Jacinto Tin Company, the Riverside
Canal Company, and the Riverside Land and Irrigating Company. These
corporations are alleged to be in possession of a large body of
land, nearly eleven square leagues in extent, for which a patent
was issued by the United States on the 26th day of October, 1867,
to Maria del Rosario Estudillo de Aguirre, and her heirs and
assigns. The object of the bill is to set aside this patent and
have it declared void
Page 125 U. S. 275
upon the ground that the land described in the survey, which
description is a part of the patent, is not the land granted by the
Mexican government to said Maria, nor that which was confirmed to
her under the proceedings before the Land Commission, and by the
judgment of the district court of the United States, and by this
Court also on appeal. The essential feature of the grievance relied
on by the complainant is that this survey was thus located by fraud
to include different and more valuable land than that granted by
Mexico, and confirmed by the courts, and on account of this fraud
it is prayed that the survey and patent be set aside and
annulled.
Perhaps the nature of this proceeding cannot be better stated
than in the language that heads the brief or printed argument of
the appellant, who was plaintiff below. It is as follows:
"This brief is intended to establish the following general
proposition,
viz., that the lands hereinafter described as
patented to Maria del Rosario de Aguirre and her heirs and assigns
on the 26th day of October, 1867, were obtained from the United
States by a fraudulent survey of the lands described therein in
violation of the decree of the court, and that the persons engaged
in said fraudulent survey were the beneficiaries thereof, and that,
by reason thereof, said patent to the same is void, and should be
set aside, vacated, and annulled."
The case was heard in the circuit court on the bill, answer,
replication, and voluminous testimony by the circuit and district
judges sitting together, who concurred in the decree dismissing the
bill. The bill sets out a grant to one Maria del Rosario Estudillo
de Aguirre of the surplus or "sobrante" of the ranchos of San
Jacinto Viejo y Nuevo, or the overplus which remains in the ranchos
of Old and New San Jacinto; the survey thereof to commence from the
boundaries of Don Jose Antonio Estudillo and Don Miguel Pedrorena.
It alleges that this grant was afterwards confirmed by the District
Court of California on appeal from the land commission. Upon an
appeal taken from that court to the Supreme Court of the United
States, its judgment was affirmed. The decision of the land
commission
Page 125 U. S. 276
was to the effect that the claimant was entitled to five square
leagues of land within this sobrante or surplus. The district
court, however, held that the claimant was entitled to eleven
square leagues, if so much should be found within the sobrante and
to all that was found therein if it were less than that amount.
The language of this decree, as set forth in the body of the
bill and affirmed by the Supreme Court of the United States at its
December term, 1863 (
United States v.
D'Aguirre, 1 Wall. 311), describes the land
confirmed as
"the sobrante or surplus lands remaining within the boundaries
of the tract of land called 'San Jacinto,' as the same are
represented and described in the map of said tract contained in the
expediente of Miguel Pedrorena filed in this case, and referred to
in the grant, over and above certain lands granted to Jose Antonio
Estudillo, and certain other lands granted to Miguel Pedrorena,
within the aforesaid boundaries, to the extent of eleven square
leagues of land, and if said sobrante or surplus within said
boundaries should be less than eleven square leagues, then such
less quantity."
The bill alleges that the location by survey of the lands
confirmed by this decree was not at all within the sobrante of the
San Jacinto grant, but that it was located upon other lands than
those on which it should have been because those which were
embraced by the survey were valuable as containing ores of tin, and
that nearly all the officers engaged in making or establishing it,
from and including the Commissioner of the General Land Office down
to the deputy-surveyors, were interested in the claim at the
time.
It is alleged that throughout the whole transaction, from the
beginning of the effort to have this survey made until its final
completion and the issue of the patent, all the proceedings were
dictated by fraud, and all the officers of the government below the
Secretary of the Interior who had anything to do with it were
parties to that fraud, and to be benefited by it.
The principal points upon which this fraud is said to rest are
that the land survey was not within the larger exterior boundaries
out of which the sobrante of San Jacinto Viejo y Nuevo was to be
taken, but that said survey described a tract
Page 125 U. S. 277
of land of about the same extent, to-wit, of about eleven square
leagues, situated more than six miles at the nearest point, and
more than twenty miles at the furthest point, away from the land in
fact granted and conceded by Pio Pico, governor, to the grantee;
that the survey of said land was never made in the field, nor from
any actual measurements of distances or observation or
determination of courses in the field, as the law of the Land
Department required, nor according to the directions of the decree
confirming said grant; that the plat and survey were made
arbitrarily, and without any actual data in the office of the
Surveyor General of the United States for California, under the
direction and dictation of that officer and one Edward Conway, then
chief clerk in charge of that office, and performing the duties of
Surveyor General, and by one George H. Thompson, a deputy surveyor
acting under the Surveyor General and the chief clerk; that it was
so made up without any reference to the expediente that accompanied
the grant or juridical possession given at the time of the grant,
or to the decree, but that it was made solely with reference to
securing, surreptitiously and fraudulently, letters patent for the
land included and described within the said survey and plat,
although the same lies outside of the boundaries of the tract
called "San Jacinto;" that the land so surveyed and platted was at
that time supposed by said Surveyor General and Edward Conway to
contain, and did in fact contain, valuable lodes of tin and other
mineral ores, and that all this was well known to the defendant, or
to persons composing its stockholders at the time the patent was
issued.
It is further alleged that Upson, the Surveyor General, Conway,
the chief clerk in his office, and Thompson, the deputy who was
directed to make the survey and did make the plat, and Joseph H.
Wilson, the Commissioner of the General Land Office at Washington,
were all interested in and part owners of the claim at the time
this survey was made, and at the very time they acted in reference
to its final confirmation. Other persons are also said to be
inculpated in this fraudulent proceeding whose names it is not
necessary at present to mention.
Page 125 U. S. 278
It will thus be seen that the entire foundation for the relief
sought in this case rests upon a fraud alleged to have been
committed upon the government by its own officers, they being
interested in the claim to be surveyed and patented. There is no
pretense of any mere mistake in the matter, but, on the contrary,
it is asserted that the parties knew exactly what they were doing,
and that it was intended to cheat the United States out of valuable
mineral ores for the benefit and advantage of those parties and
their confederates. The issue is thus narrowed exclusively to the
question of fraud.
Another question, however, is raised by counsel for the
defendant, which is earnestly insisted upon by them, and which
received the serious consideration of the judges in the circuit
court -- namely the right of the Attorney General of the United
States to institute this suit.
The question as presented is one surrounded by some
embarrassment, but as it is, in some form or other, of frequent
recurrence recently, and, if decided in favor of the appellees,
will require the dismissal of the case without a judgment by this
Court upon its merits, we feel called upon to give the matter our
attention. It is denied that the Attorney General has any general
authority under the Constitution and laws of the United States to
commence a suit in the name of the United States to set aside a
patent or other solemn instrument issued by proper authority.
It is quite true that the Revised Statutes, in the title which
establishes and regulates the Department of Justice, simply
declares in § 346 that
"There shall be at the seat of government an executive
department, to be known as the 'Department of Justice,' and an
Attorney General, who shall be the head thereof."
There is no very specific statement of the general duties of the
Attorney General, but it is seen from the whole chapter referred to
that he has the authority, and it is made his duty, to supervise
the conduct of all suits brought by or against the United States
and to give advice to the President and the heads of the other
departments of the government. There is no express authority vested
in him to authorize suits to be brought against the debtors of the
government,
Page 125 U. S. 279
or upon bonds, or to begin criminal prosecutions, or to
institute proceedings in any of the numerous cases in which the
United States is plaintiff, and yet he is invested with the general
superintendence of all such suits, and all the district attorneys
who do bring them in the various courts in the country are placed
under his immediate direction and control. And notwithstanding the
want of any specific authority to bring an action in the name of
the United States to set aside and declare void an instrument
issued under its apparent authority, we cannot believe that where a
case exists in which this ought to be done it is not within the
authority of that officer to cause such action to be instituted and
prosecuted. He is undoubtedly the officer who has charge of the
institution and conduct of the pleas of the United States, and of
the litigation which is necessary to establish the rights of the
government.
If the United States, in any particular case, has a just cause
for calling upon the judiciary of the country in any of its courts
for relief by setting aside or annulling any of its contracts, its
obligations, or its most solemn instruments, the question of the
appeal to the judicial tribunals of the country must primarily be
decided by the Attorney General of the United States. That such a
power should exist somewhere, and that the United States should not
be more helpless in relieving itself from frauds, impostures, and
deceptions than the private individual is hardly open to argument.
The Constitution itself declares that the judicial power shall
extend to all cases to which the United States shall be a party,
and that this means mainly where it is a party plaintiff is a
necessary result of the well established proposition that it cannot
be sued in any court without its consent. There must, then, be an
officer or officers of the government to determine when the United
States shall sue, to decide for what it shall sue, and to be
responsible that such suits shall be brought in appropriate cases.
The attorneys of the United States in every Judicial District are
officers of this character, and they are by statute under the
immediate supervision and control of the Attorney General. How then
can it be argued that if the United States has been deceived,
entrapped,
Page 125 U. S. 280
or defrauded into the making, under the forms of law, of an
instrument which injuriously affects its rights of property, or
other rights, it cannot bring a suit to avoid the effect of such
instrument, thus fraudulently obtained, without a special act of
Congress in each case, or without some special authority applicable
to this class of cases, while all other just grounds of suing in a
court of justice concededly belong to the Department of Justice,
and are in use every day? The Judiciary Act of 1789, in its third
section, which first created the office of Attorney General,
without any very accurate definitions of his powers, in using the
words that "there shall be appointed a meet person, learned in the
law, to act as Attorney General for the United States," 1 Stat. 93,
c. 21, § 35, must have had reference to the similar office with the
same designation existing under the English law, and though it has
been said that there is no common law of the United States, it is
still quite true that when acts of Congress use words which are
familiar in the law of England, they are supposed to be used with
reference to their meaning in that law. In all this, however, the
Attorney General acts as the head of one of the executive
departments, representing the authority of the President in the
class of subjects within the domain of that department and under
his control.
In the case of
United States v.
Hughes, 11 How. 552, one Godbee had entered and
paid for land at the United States Land Office in New Orleans, but
had not taken out his patent. Hughes, well knowing this fact,
entered, paid for, and received a patent for the same land, the
prior entry of Godbee being overlooked by the land officers. The
United States having tendered Hughes his purchase money, the
Attorney General filed an information on behalf of the United
States to repeal the patent. The defendant, Hughes, demurred, on
the ground that no authority existed for bringing such a suit; but
this Court, saying that "it cannot be conceived why the government
should stand on a different footing from any other proprietor,"
overruled the demurrer. When the case afterwards came into this
Court on appeal from the decree on the final hearing, it said:
"It was the plain duty of the United
Page 125 U. S. 281
s U.S. States to seek to vacate and annul the instrument to the
end that their previous engagement might be fulfilled by the
transfer of a clear title, the only one intended for the purchaser
by the act of Congress."
4 Wall.
71 U. S.
236.
In
United States v.
Stone, 2 Wall. 525, Mr. Justice Grier, delivering
the opinion of the Court, said:
"A patent is the highest evidence of title, and is conclusive as
against the government and all claiming under junior patents or
titles until it is set aside or annulled by some judicial tribunal.
In England this was originally done by
scire facias, but a
bill in chancery is found a more convenient remedy."
In the case of
Mowry v.
Whitney, 14 Wall. 440, which was an attempt by a
private party to set aside by a bill in chancery a patent for an
invention, the Court considered the subject rather fully, and said
that "the ancient method of doing this in the English courts was by
scire facias, and three classes of cases are laid down in
which this may be done." The Court held that in England,
"the
scire facias to repeal a patent was brought in
chancery where the patent was of record, and though, in this
country, the writ of
scire facias is not in use as a
chancery proceeding, the nature of the chancery jurisdiction, and
its mode of proceeding, have established it as the appropriate
tribunal for the annulling of a grant or patent from the
government,"
referring to
United States v. Stone, above cited. The
Court denied the right of the private party to sustain a suit to
annul the patent, and said:
"The general public is left to the protection of the government
and its officers. . . . The reasons for requiring official
authority for such a proceeding are obvious. The fraud, if one
exists, has been practiced on the government, and, as the party
injured, it is the appropriate party to assert the remedy or seek
relied."
In
United States v. Throckmorton, 98 U.
S. 70, the Court said:
"In the class of cases to which this belongs, however, the
practice of the English and the American courts has been to require
the name of the Attorney General as endorsing the suit before it
will be entertained. The reason of this is obvious -- namely that
in so important a matter as impeaching the
Page 125 U. S. 282
grants of the government under its seal, its highest law officer
should be consulted and should give the support of his name and
authority to the suit. He should also have control of it in every
stage, so that if at any time during its progress, he should become
convinced that the proceeding is not well founded or is oppressive,
he may dismiss the bill."
In
Moore v. Robbins, 96 U. S. 533,
the Court, speaking of the issuing of patents for land by the
government, said:
"If a fraud, mistake, error, or wrong has been done, the courts
of justice present the only remedy. These courts are as open to the
United States to sue for the cancellation of the deed or
reconveyance of the land as to individuals, and if the government
is the party injured, this is the proper course."
While the cases last cited did not involve directly the power of
the Attorney General to institute a suit to set aside a patent of
the United States, we have had before us quite recently three cases
which did involve that power, brought by the United States for the
express purpose of setting aside patents for land issued by the
government on the ground of frauds or mistakes in their issue. In
the first of these,
Moffat v. United States, 112 U. S.
24, which was prosecuted by the Attorney General, who
appeared in this Court by the Assistant Attorney General to argue
the case, the decree of the circuit court setting aside the patent
as having been obtained by the fraud of the officers of the Land
Department was affirmed. No question was made of the right of the
Attorney General to institute the suit and conduct it to a
successful termination.
In the second case,
United States v. Minor,
114 U. S. 241,
a suit was brought in the Circuit Court for the District of
California to set aside a patent for land issued by the government
to Minor. The bill alleged that the patent was obtained by the
fraud of Minor in making false affidavits and procuring others to
be made before the officers of the Land Department by which he
obtained a patent for the land in question. Although the case was
certified here by the judges sitting in that court on a division of
opinion upon several points, one of which was whether a demurrer to
the amended bill should be sustained, no question seems to have
been made of the right
Page 125 U. S. 283
of the government, by its Attorney General, to institute this
suit the appeal on behalf of the United States being argued by the
Solicitor General, an officer under the control of the Attorney
General.
Some question was, however, made in the opinion in that case in
regard to the right of the Attorney General to bring such a suit
where the only result would have been to take the land from Minor
and give it to one Spence, who had a claim upon part of it, the
Court saying that
"the government in that case would certainly have no interest in
the land when recovered, as it must go to Spence without any
further compensation. And it may become a grave question in some
future case of this character how far the officers of the
government can be permitted, when it has no interest in the
property or in the subject of the litigation, to use its name to
set aside its own patent, for which it has received full
compensation, for the benefit of a rival claimant."
The Court said, however, that the question did not arise in that
case, because Spence only had a claim to one-half of the land
covered by the patent. It will be seen that the only question thus
suggested did not affect the right of the Attorney General, in a
proper case, to institute and carry on such a suit, and the decree
of the circuit court was reversed on the ground that the case
presented was one which justified relief.
In the still later case of
Colorado Coal & Iron Company
v. United States, 123 U. S. 307, the
bill was filed in the name of the United States by the Attorney
General to declare void and cancel sixty-one patents for as many
distinct pieces of land situated at different places in Las Animas
County in the State of Colorado, amounting in the aggregate to over
9,000 acres. The allegation in that case was that the patent had
been obtained by the fraudulent use of fictitious names as grantees
of the land, and the case was fought through with great vigor on
both sides. It was thoroughly and elaborately considered, and the
Court said in regard to these transactions that they
"undoubtedly constituted a fraud upon the United States
sufficient in equity as against the parties perpetrating it, or
those claiming under them with notice of
Page 125 U. S. 284
it, to justify the cancellation of the patents issued to
them,"
quoting the following language from
United States v.
Minor, above cited:
"Where the patent is the result of nothing but fraud and
perjury, it is enough to hold that it conveys the legal title, and
it would be going quite too far to say that it cannot be assailed
by a proceeding in equity, and set aside as void, if the fraud is
proved and there are no innocent holders for value."
If the court had entertained the opinion in these cases that
there existed in the Attorney General no right to institute these
suits to set aside patents for lands obtained by fraud, it would
have been saved the labor of a protracted investigation in each of
them into the facts which were supposed to constitute the fraud,
and in the two cases first mentioned, the Court violated its duty
in sustaining the government and setting aside the patents if there
existed in its judgment no right in the Attorney General to
institute such suits.
We are not insensible to the enormous power and its capacity for
evil thus reposed in that department of the government. Since the
title to all of the land in more than half of the states and
territories of the union depends upon patents from the government
of the United States, it is to be seen what a vast power is
confided to the officer who may order the institution of suits to
set aside every one of these patents, and if the doctrine that the
United States in bringing such actions is not controlled by any
statute of limitations or governed by the rule concerning laches be
sound, of which we express no opinion at present, then the evil
which may result would seem to be endless, as well as enormous. But
it has often been said that the fact that the exercise of power may
be abused is no sufficient reason for denying its existence, and if
restrictions are to be placed upon the exercise of this authority
by the Attorney General, it is for the legislative body which
created the office to enact them.
We do not think, therefore, that it can be successfully denied
that there exists in the Attorney General, as the head of the
Department of Justice, the right to institute, in the name of the
United States, a suit to abrogate, annul, or set aside a patent for
land which has been issued by the government in a
Page 125 U. S. 285
case where such an instrument, if permitted to stand, would work
serious injury to the United States and prejudice its interests,
and where it has been obtained by fraud, imposture, or mistake.
One of the difficulties attending the present case and others of
like character which have come before us in which the authority of
the Attorney General to institute the suit has been questioned is
that no specific plea has been filed denying this authority or
alleging that the suit as made by the bill, or established by the
evidence, does not come within the class of cases in which that
officer can exercise this power.
There is no plea in this case, and all that is said upon this
subject in the answer is in the following language:
"If said officers [meaning the President, the Secretary of the
Interior, and the Commissioner of the General Land Office, who were
such at the time this action was begun] had consulted the records,
they would have been easily informed of the truth; but the said
Attorney General is now informed and moved and instigated by the
same parties who made the contest in the Land Department before the
issuing of the said patent, and M. G. Cobb, the same attorney who
drew the bill herein and instigated the suit and conducts the same
was the attorney of said contestants in said proceedings, and has
represented said parties as such attorney and counsel from the
filing of said objections by said Stearns and Montalva down to the
present time."
But we are of opinion that since the right of the government of
the United States to institute such a suit depends upon the same
general principles which would authorize a private citizen to apply
to a court of justice for relief against an instrument obtained
from him by fraud or deceit, or any of those other practices which
are admitted to justify a court in granting relief, the government
must show that, like the private individual, it has such an
interest in the relief sought as entitles it to move in the matter.
If it be a question of property, a case must be made in which the
court can afford a remedy in regard to that property; if it be a
question of fraud which would render the instrument void, the fraud
must operate to the
Page 125 U. S. 286
prejudice of the United States, and if it is apparent that the
suit is brought for the benefit of some third party and that the
United States has no pecuniary interest in the remedy sought, and
is under no obligation to the party who will be benefited to
sustain an action for his use -- in short, if there does not appear
any obligation on the part of the United States to the public, or
to any individual, or any interest of its own -- it can no more
sustain such an action than any private person could under similar
circumstances.
In all the decisions to which we have just referred, it is
either expressed or implied that this interest or duty of the
United States must exist as the foundation of the right of action.
Of course, this interest must be made to appear in the progress of
the proceedings, either by pleading or evidence, and if there is a
want of it, and the fact is manifest that the suit has actually
been brought for the benefit of some third person, and that no
obligation to the general public exists which requires the United
States to bring it, then the suit must fail. In the case before us,
the bill itself leaves a fair implication that if this patent is
set aside, the title to the property will revert to the United
States, together with the beneficial interest in it. It is argued
in the brief that this is not true; that in fact the government is
but the instrument of one Baker, who married the widow of Abel
Stearns, and that Stearns contested the correctness of this survey
with others before the Land Department very actively and
energetically, because he had such an interest in the land covered
by it that if it was defeated, he would become the equitable or
beneficial owner of the land. This view is supported by some pretty
strong testimony and by the fact that Baker was the man at whose
instance the action was begun.
When the Attorney General required that a bond should be given
to save the United States harmless with regard to the costs of
these proceedings, Baker was the man who furnished the security,
and signed the bond himself. The condition inserted in that
obligation recited
"That whereas the Attorney General of the United States of
America has this day filed
at the request of the above-named R.
S. Baker, a bill in equity in
Page 125 U. S. 287
the name of and on behalf of the United States of America
against the San Jacinto Tin Company, . . . now therefore if the
said Baker shall well and truly save the United States of America
harmless from all costs and expenses which may be incurred by or
against them in the prosecution of said suit to its final
determination and pay or cause to be paid on demand all such costs
and expenses as may necessarily be incurred in such prosecution,
then this obligation to be void."
Taking all these circumstances together, it raises a very strong
implication that Baker expected that, if the patent was set aside,
his right to the land covered by it, or to a large part of it,
would become paramount.
But we are not so entirely satisfied of the want of interest of
the United States in the whole or a part of the land which is
covered by this patent as to justify us in saying that the bill in
the present case ought to be dismissed on that ground.
Coming to the merits of the case, which turn exclusively on the
question of fraud in the location of the survey of the grant to the
original claimant, we are to observe that the issue is by the
pleadings themselves, as well as by the explicit statement of
counsel for appellant, limited to actual fraud in the execution of
that survey. There is no denial of the validity of the original
grant, nor of its confirmation by the Land Commission, as well as
on appeal by the District Court of the United States for California
and by this Court. The justice of a claim for eleven square leagues
of land within the surplus, technically called "sobrante" of the
San Jacinto tract, is not questioned, nor does the decree which is
to be carried out by this survey limit the location of the land
otherwise than that it shall not be more than eleven leagues, and
that it shall be within the out-boundaries of this surplus.
There is a statement in the decree that the measurement of the
land thereby confirmed is to be commenced from the line of the
Estudillo grant as fixed by the act of judicial possession to him,
to which reference is made. We consider this last description as
nothing more than a statement that the land of Estudillo previously
granted within the boundaries of the tract called "San Jacinto"
shall be one of the boundaries of the
Page 125 U. S. 288
claim thus confirmed, and that the survey must not cover the
grant to Estudillo. Reference is also made to map contained in the
expediente among the papers before the court.
The question presented would naturally divide itself into two
parts if there had been any allegation of an unintentional or
accidental mistake in the location of the grant; but the plaintiffs
in this case place themselves outside of the benefit of this claim
of mistake, except as it may be so gross as to aid the belief of an
intentional fraud on the part of those who made it. The main issue,
therefore, in the case is on the question of actual fraud committed
by those who made and established the survey.
The principal foundation on which this fraud is rested by
counsel is that all the officers of the government below the
Secretary of the Interior who had anything to do with the making,
considering, confirming, or ratifying of this survey were
interested in the claim; that the motive of the fraud was to
include within the survey certain lands which were then known to
contain mineral ores believed to be immensely valuable, and that
for this purpose the survey was distorted and wrenched from its
proper place in order to cover these mineral deposits. As will be
shown hereafter, most of the persons charged with having such
interest and with being in position to influence the location of
the land by the surveyor never had any interest in it at all until
after the survey was made and confirmed and the patent issued to
the claimant. If this be true, of course, they were under no
temptation to do wrong, and the fraudulent motive attributed to
them could have had no existence.
Mr. Edward Conway, who had previously bought the property and
received the conveyance of the title from the claimant before the
patent issued, asserts in his testimony that at the time the survey
was made and was pending before the Land Office, he was the only
owner of the property, and that no one had any interest, equitable
or otherwise, in it but himself. After this, he organized a
corporation to which the title of the property was conveyed, which
undertook to work the tin mines found upon it, and most of these
persons so
Page 125 U. S. 289
liberally charged with fraud in the survey are those who became
stockholders therein.
The main instrument of this fraud, according to the theory of
plaintiff's counsel, was Conway, who, it is charged, owned the
whole or at least the predominating interest in the grant at the
time the survey was made. At that time, he was chief clerk in the
office of the Surveyor General of the United States for California,
and during the period when it was under consideration therein, as
well as in the General Land Office and before the Secretary of the
Interior. It is charged that he was often the Acting Surveyor
General, and that this survey was made under his control and
direction while he was thus interested as owner of the claim.
It is also charged that George H. Thompson, a deputy surveyor,
acting under the Surveyor General and said Conway, entrusted with
the duty of making this particular survey, was also interested in
the claim with Conway, as well as one Hancock, at some time a clerk
in the Surveyor General's office. It is asserted further that the
survey was not actually made upon the ground, but, as a matter of
fact, in the office of the Surveyor General by said Conway,
Thompson, and Hancock, solely for the purpose of surreptitiously
securing letters patent upon the land described and included in the
survey and plat, the motive in mislocating said land being that
these parties believed that the land so surveyed contained valuable
lodes of tin and other mineral ores.
The deposition of Conway was taken during the progress of the
suit. He was then sixty years old. He states in that deposition
that at the time it was given, he had no interest whatever in the
San Jacinto Tin Company or in the lands which were the subject of
controversy; the he had long since parted with his shares in the
stock of that company, some of which were sold for assessments
which he was unable to pay. He gives a history of his connection
with the claim and with the Land Office during its pendency before
it, and also states the connection that other parties sustained to
this transaction who are asserted to have been interested in it
during that time. It seems to be a fair and candid statement of all
the
Page 125 U. S. 290
facts about which he was interrogated. He contradicts himself
nowhere during a long examination and cross-examination, and he is
not anywhere successfully contradicted by other testimony in the
case. He appears to have been sincerely anxious to tell the whole
truth, and if his statement is to be believed, he had no interest
to do otherwise.
Mr. Conway states that during the years 1864, 1865, and 1866, he
was chief clerk in the office of the United States Surveyor General
for California, in San Francisco; that he entered that office in
the fall of 1857, resigned in December, 1866, and again entered it
on January 1, 1868, and remained there until December, 1869, his
longest service being as chief clerk, although he commenced at a
lower grade. He served under Surveyors General Mandeville, Beale,
and Upson, and during the entire terms of the two latter, with the
exception of the year stated. He testifies that the approval of
surveys could only be made by the Commissioner of the General Land
Office, who was furnished with the field notes and plats which were
certified to be correct by the Surveyor General, who also made a
report of his action for the approval or disapproval of that
officer; that the first connection he had with the sobrante San
Jacinto Viejo y Nuevo was in 1863; that he then told Surveyor
General Beale that he wished to resign his place as chief clerk, as
he had offers of other business, among which was one from Mr.
Hancock, then a major in the army of the United States, who
informed him that he had control of this sobrante and also of the
Rancho San Jacinto Nuevo -- that is, of the metals that were in
those ranchos -- and he wished him to take charge of the
business.
Throughout the whole of this story, the early connection of
Hancock and Conway with the sobrante claim seems to have been under
a right purchased by Hancock from Mrs. Aguirre of the mineral
products thereof, without any claim to a general grant of the land.
The witness Conway says that Surveyor General Beale told him, upon
being informed of the above facts, that they constituted no
objection to his remaining in the office, and that he did not wish
to part with him. He says:
"I told him I felt a little delicacy about it, and he
Page 125 U. S. 291
answered that he would look out for the interest of the United
States. When Surveyor General Upson came into office, I informed
him of the circumstances; that I was interested not in the rancho,
but in the veins of metals that were supposed to be there; told him
that I wished to have nothing to do with the survey -- to have no
connection with it -- and any reports he wished on the matter he
must get from other officers. In April, 1866, the owner of the
sobrante offered it for sale for $8,000. I think it was $3,000
cash, and $5,000 on time on a mortgage."
He then went on to state that he enlisted Mr. Charles Hosmer,
who advanced him the money for the cash payment, and he (Conway)
then agreed to hold in trust for him one-eighth of the estate, and
repay him his advance out of the first proceeds; that the survey of
the sobrante was made in 1864 at the request of the grantee,
through her attorneys, Patterson and Stow, acting under the
authority of Major Hancock, and in regard to this transaction he
testifies as follows:
"Edward F. Beale was the Surveyor General at the time, and he
issued the instructions for the survey. The deputy who was directed
to make the survey of the sobrante was George H. Thompson. Neither
Surveyor General Beale nor Thompson had any interest, present or
contingent, in the sobrante at that time, or any promise of any
interest. I know positively that they had no interest or promise of
interest. Surveyor General Beale has never owned any interest in
the sobrante rancho, nor ever owned any stock in the San Jacinto
Tin Company, either by himself or in trust or in any other manner.
The survey was made by Thompson in Beale's time, and under his
instructions."
It further appears from his testimony that, the survey having
been forwarded to the department at Washington, it was there
decided that the Act of June 2, 1862, 12 Stat. c. 90, 410, under
which the survey was made, did not apply to California, and it was
returned to the office in San Francisco with instructions, the Act
of July 1, 1864, 13 Stat., c. 194, 332, having been passed in the
meantime, to have it advertised according to the provisions of that
statute. By this act, the survey, with its plat
Page 125 U. S. 292
and field notes, were to be open for public inspection for
ninety days after the expiration of the four consecutive weeks of
publication which was provided for; then if objections were made to
the survey within that time by any party claiming to have an
interest in the tract embraced by it or in any part thereof, they
were to be reduced to writing, stating distinctly the interest of
the objector and signed by him or his attorney and filed with the
Surveyor General, together with such affidavits or other proofs as
he might produce in support of the objection, and at the expiration
of said ninety days, the Surveyor General was bound to transmit to
the Commissioner of the General Land Office at Washington a copy of
the survey and plat, with the objections and proofs filed in
support of them, and also copies of any proofs produced by the
claimant, all of which the Commissioner was to examine into, and
approve the survey, or return the same for correction. All this
Conway testifies was done. He says:
"Exceptions were taken to the survey by Abel Stearns, the owner
of the Sierra rancho on the north, and of the rancho that he
claimed as the Temescal on the west. Surveyor General Upson ordered
the survey reformed in order to leave space on the north for the
Sierra, according to the juridical possession, of one league in
width from the Santa Ana River."
In all this, the witness is confirmed by the records of land
offices. The witness stated that he took no part whatever in these
proceedings with reference to either survey, and, upon being asked
if he exercised any control with respect to this sobrante claim or
the survey thereof, said:
"I simply gave notice to the Surveyors General, Beale and Upson,
of my interest in this rancho, and after that I had nothing to do
with it. The report was made by Mr. Hopkins, and I acted in the
same manner as a judge would on the bench if he was interested in
the case -- step down and out."
He also says that the instructions in regard to the mode of
executing the survey came from the Commissioner of the General Land
Office.
The witness then proceeded to state the facts connected with his
acquisition of this property, as follows:
"I made my first purchase of an interest in this sobrante on
Page 125 U. S. 293
the 3d of April, 1866, the only purchase I made. . . . I
purchased it from Manuel Ferrer and his wife, Maria del Rosario
Estudillo de Aguirre. She was the original grantee of the rancho.
Her husband joined with her in the deed. No person was interested
with me in that purchase, either before or upon the receipt of the
deed, except Mr. Hosmer, as I before stated. That was the only
interest except my own. I had that deed recorded in the office of
the County Recorder of San Bernardino County on the 30th of April,
1866. From April 3, 1866, until April 30, 1866, I was in San
Francisco. The deed was executed in San Diego and sent up to me,
and I sent it down for record immediately. . . . In addition to
myself and Mr. Hosmer, no person except Jeremiah S. Black and
William H. Lowery, attorneys at law, of Washington, were interested
in that sobrante subsequent to the date of that deed, April 3,
1866, and prior to the date of that patent."
This was the period during which the survey was pending in the
office of the commissioner having charge of public lands, awaiting
his approval, and witness says that during that period no interest
in the sobrante was held in trust for any other person, to his
knowledge, except those mentioned; that Black and Lowery were his
attorneys in the case of the Rancho Sobrante San Jacinto before the
Commissioner of the General Land Office and the Secretary of the
Interior, and the consideration which they paid for the interest
which he (Conway) held for them was their service as attorneys in
the matters mentioned. He further says that he resigned his
position in the Surveyor General's office about December 10, 1866,
and proceeded to Washington, returning in December, 1867. He then
goes on to recount his acquaintance in that city with Joseph H.
Wilson, Commissioner of the General Land Office, and several other
persons mentioned, and to deny that either or any of them were
interested with him in any manner whatever in the sobrante by
purchase or otherwise, directly or indirectly, before his return
from Washington on that occasion. He proceeds to say, in the
further history of the matter, that when he returned from
Washington, in December, 1867, he thought it best to form a
corporation for the
Page 125 U. S. 294
purpose of working the ores in the mines, and offered interests
to gentlemen whom he thought responsible, and calculated to further
the joint interests of the corporation; that on the 3d day of
January, 1868, the corporation was formed, and became the owner of
the property; that it agreed to pay off the mortgage, assume the
indebtedness to Hosmer, and pay him (Conway) $7,500, and allow him
to retain a certain number of the shares of its stock, which he
afterwards states to be about one-sixth of the sum at which it was
capitalized, and that all this was done.
Mr. R. C. Hopkins, who is charged as interested in this property
and contributing to the successful fraud in the location of the
land in controversy, states in his deposition that he was then
sixty-seven years of age; that he was in the office of the United
States Surveyor General for California from 1855 until 1879, having
charge of the Spanish archives, which included the records of the
grants made by the governments of Spain and Mexico. Of this witness
it may be generally stated that he was shown to be a man of very
high character, exceedingly useful to the government on account of
his familiarity with and control of these valuable documents, and
very much relied on by all persons interested in the location of
surveys in that country or in the validity of Mexican grants.
In regard to this particular transaction, he states that he was
in that office, in the capacity of keeper of the archives, in 1864,
when the survey was made which is the subject of controversy, at
which time Mr. Beale was Surveyor General; that he saw the written
application made by Hancock through Patterson, for a survey of the
rancho at that time, and probably wrote the instructions for it to
be made. Upon being asked who was the deputy surveyor who made the
survey, he said that it was George H. Thompson. He was then asked,
"By whom was he selected?" to which he replied, "I don't know, but
I presume that the Surveyor General appointed him on his own
motion," and proceeded to say that the instructions were signed by
the Surveyor General. He was then asked, "Was there any person in
the Surveyor General's
Page 125 U. S. 295
office at that time who had any interest in this grant?", to
which he replied, "To my knowledge, no." The inquiry was then
made
"Do you know of any reason, object, or purpose in locating that
grant on the part of anybody in the office other than to locate it
according to the decree of confirmation?,"
to which he answered "I do not." "Had you any interest in this
matter before the issuance of patent?" To this he replied, "No,
sir, neither directly nor indirectly." He was then asked if either
Upson or Beale, the Surveyors General, or Wilson, the Commissioner
of the General Land Office, or Thompson, the deputy who made the
survey, or Whiting had any interest in the claim prior to the
issuance of the patent, to which he answered in each case that they
had not.
He was afterwards interrogated about some shares of the stock of
this company, which he said he had accepted from Conway as a sort
of compensation for previous losses in other speculation, and upon
which he paid large assessments, and finally gave them up, because
he was unable or unwilling to continue the payments required.
Hancock, Upson, and Wilson, he states, are dead.
He also testifies that, with the fullest knowledge of the
surveys and papers, and after an examination of the records in the
office at San Francisco, it seems to him that it would be
impossible to attempt to locate the rancho in any other way so as
to conform to the decree of the court, and that this land is
located within the general limits of the tract called "San
Jacinto," and did conform to that decree. Upon being asked if it
was possible for him to be mistaken about this matter, he
replied:
"I don't think so. It is a question of landmarks that are
unmistakable in their location, having historical names. It is
hardly a matter in which judgment is to be much exercised, but is a
matter of fact -- at least, I looked upon it at that time as such,
when I made this report."
To the question "Was that location made arbitrarily, without
reference to courses or distances, or under the direction or
dictation of Conway?" he answered:
"I think it was made under the instructions of the Surveyor
General -- I presume, without any dictation from anyone. There were
probably some instructions to follow
Page 125 U. S. 296
when public lands were surveyed -- the lines of the public
surveys. . . . That survey, I presume, was made in accordance with
the decree of the district court and with all the data that could
be obtained."
It appears also that Hopkins made the report of the survey to
the Surveyor General, and that he does not doubt that it was
correctly made.
The deposition of Thompson, the deputy who made the survey, was
taken, and his examination of several hundred pages is mainly
confined to his acts in regard to it and the means which he had for
making it correctly. On this branch of the subject, it is
sufficient to say that his statement is very clear to the effect
that the survey was properly located, although he admits that he
did not go upon the land, but made the location, under directions
from the Surveyor General, from maps in his office showing the
actual objects which constituted the out-boundaries of the sobrante
and the other locations which had priority to this.
During his examination, he was asked what he knew about the
ownership of the claim at the time the surveys were made. To this
he replied in effect that he did not know Conway was the owner;
that he understood the request for the survey proceeded from
Hancock or from attorneys employed by Hancock, who represented the
grantee in the decree of confirmation. He nowhere intimates, nor
was he at any time asked, whether he had an interest in the survey
at that time, and there is in fact a total failure to establish the
allegation that he had any interest whatever, either present or
prospective, in the claim when the survey was made by him, or was
influenced by anybody who had.
Without going further into the minutiae of the testimony on this
subject, we are of opinion that there is no evidence that
establishes any interest in the claim under consideration prior to
the issuance of the patent in any man who was connected with the
Land Department of the government, whether as Surveyor General,
deputy surveyor, clerk, or otherwise, except Conway, that Conway's
interest was well known to the Surveyors General who at different
times had charge
Page 125 U. S. 297
of this matter, as well as to the Commissioner of the General
Land Office and the Secretary of the Interior, who finally passed
upon it, and that he abstained from any interference with the
making of the survey or the officers who had it in charge, except
that probably, while he was in Washington, he looked after its
confirmation.
The attempt to deduce an inference of fraud in the establishment
of this survey, and the final issue of the patent, from the
circumstance that, after its issue, and when Conway had become the
sole owner of the property, he, with many other persons of
distinction, some of whom were engaged in other branches of the
government service and some connected with the Land Department,
cooperated to organize a joint-stock company for its development
and improvement, the shares of which they took, and upon which they
paid many assessments, and from the further fact that a very few of
them may have received such stock as compensation for aid rendered
to Conway in his struggle to establish the title, is, we think,
entirely repelled by the testimony, which shows that none of these
persons had any interest in it at the time the fraudulent
transactions are alleged to have occurred. It does not appear that
the stock which they got was in any sense a compensation for
services rendered in establishing the survey, except in the case of
Black and Lowery, who were the attorneys employed for that purpose,
and received some of its shares as their compensation. To hold that
these parties, such as Hopkins, Thompson, Upson, and perhaps
others, when they found the stock of a corporation for sale which
had promise of profit in it, by taking its shares, became
participes criminis in a conspiracy to defraud the
government, of which they knew nothing at the time the fraud is
alleged to have been committed, and that the mere fact of their
taking these shares of stock is evidence they took part in the
conspiracy, is a species of logic on which patents granted by the
United States should not be set aside.
We do not hesitate to say that there is a total failure of
evidence to establish any participation in this fraud on the part
of any of the persons in the service of the government
Page 125 U. S. 298
who are charged with having been engaged in it. While we do not
wish to give countenance to the idea that an officer of the
government before whom any matter may come for his action or to be
acted upon in his office should voluntarily acquire an interest in
such matter, even though he disclose that interest, but, on the
contrary, think that he should accept no such delicate position,
nevertheless that circumstance alone should not be permitted to
divest the rights of others unless it be shown that such position
was used in aid of an actual fraud.
As to Conway, who had the principal, if not the sole, interest
which could induce an effort to secure the false location of the
grant, there is no sufficient evidence in the record to show that
he undertook in any way to control the actual survey of this land.
His testimony, given at a time when he could have had no pecuniary
interest in the result of this suit and delivered with a candor and
apparent readiness to answer promptly all questions put to him,
without any of the evasive expressions, such as, "I don't know," or
"I cannot remember," so commonly used by false witnesses, commands
our confidence.
The strongest argument against the commission of any fraud, and
in favor of the correctness of the location of the grant by the
survey, is to be found in the fact that it went through all the
different offices in the Land Department to which it could possibly
be taken, from its being filed by Thompson in the office of the
Surveyor General up to its consideration by the Secretary of the
Interior himself, and in all these offices ample time was given for
careful examination, and an actual scrutiny of the matter was made
by reason of the contest of Stearns, who succeeded in having the
lines of the survey changed so as to exclude property in which he
was interested. After this change was made, it was again brought
before the Commissioner and argued by counsel on both sides and
considered in the light of all the facts which either party chose
to bring before the office, and abundant time was given for its
investigation. Mr. Wilson, the Commissioner, was a man of many
years' experience in the class of cases to which this belongs and
which he was then called upon to decide. He made a full
Page 125 U. S. 299
report, which is in the record, to the Secretary of the
Interior, Hon. O. H. Browning, a lawyer of eminence and a man
accustomed to weighing testimony, who, after having the case under
consideration from May 22, 1867, to October 19th, of the same year,
made the following decision, which he referred back to the
Commissioner of the General Land Office for execution:
"Sir: I have received your letter of the 22d May last,
submitting for consideration the papers of the private land claim
in California known as the 'Sobrante de San Jacinto,' and asking
for instructions on the 'application for a patent to issue in
accordance with the survey approved by the Surveyor General of
California.' A careful examination of the papers and consideration
of the arguments of counsel have led me to concur in your opinion
that all the requirements of the law have been complied with, and
that patent should issue in accordance with the survey."
We consider this examination of the case in the office of the
Commissioner, and its reexamination by the Secretary of the
Interior, as possessing the very strongest probative force in
regard to the question of fraud, which was mooted before them, as
well as the question of the proper location of the grant. No
stronger evidence could be given of the honesty of Commissioner
Wilson and his belief in the correctness of the survey than the
fact of his reference of the whole matter to the Secretary of his
own motion, without any appeal by either party from his decision.
They had in the Land Office abundant materials for the
investigation of all the matters in dispute. They had before them
the interested parties, with all the evidence which they could
collect, the records, the Mexican archives, and control of all the
papers of the government since the territory came into the
possession of the United States, as well as ample time -- more than
this Court has -- to consider all these subjects. Very little that
is new, or that throws any light upon the questions at issue, is
now produced on the hearing of this case,
With regard to the question of fraud, we have no hesitation in
saying that there is no such case made of intentional fraud, or
actual fraud, committed upon the government of the United
Page 125 U. S. 300
states in this transaction, as justifies the cancellation of the
patent. We have quite recently given our views upon this subject
very freely in the
Maxwell Land Grant Case, 121 U.
S. 325, in regard to the character of the testimony
necessary to set aside such a solemn instrument as a patent of the
United States. It was there held, p.
121 U. S.
381,
"that when, in a court of equity, it is proposed to set aside,
to annul, or to correct a written instrument for fraud or mistake
in the execution of the instrument itself, the testimony on which
this is done must be clear, unequivocal, and convincing, and that
it cannot be done upon a bare preponderance of evidence which
leaves the issue in doubt. If the proposition as thus laid down in
the cases cited is sound in regard to the ordinary contracts of
private individuals, how much more should it be observed where the
attempt is to annul the grants, the patents, and other solemn
evidences of title emanating from the government of the United
States under its official seal."
So far from there being the satisfactory evidence here pointed
out of a fraud against the government having been perpetrated in
this case, there is really little but suspicion, fierce
denunciation, and a bitter use of such words as "fraud," "deceit,"
and "imposition." If the case stood alone upon the testimony
introduced by the government, it would, so far as any fraudulent
purpose is concerned, do but little more than raise a suspicion
that the parties engaged in the transaction sought their own
interest at the expense of the government, and not always by the
most appropriate means; but when the testimony for the defense is
considered, it refutes, not only the existence of any such
fraudulent intent or dishonest acts, but it removes from the main
actors in the matter even the suspicion of having used underhand
and improper means for the accomplishment of their purposes.
As regards the correctness of the location by survey of the
grant, whose validity and justice is not questioned, we do not know
that we can do better than to copy the language of the circuit
judge presiding when the decree was rendered. In his opinion
delivered on that occasion and concurred in by the district judge,
he said:
"It is confidently assumed on the part
Page 125 U. S. 301
of complainant that the location of the lands patented is
palpably wholly outside of the exterior limits described in the
original petition, Mexican grant, and the decree of confirmation;
that this is so obvious that the grant must have been willfully and
fraudulently located where it is. This is an assumption that in our
judgment is wholly without justification in the documentary and
other evidence in the case. Upon a careful consideration of the
subject, we are of the opinion that the most that can be reasonably
said against the location is that the record presents a fair case
for an honest difference of opinion; that a plausible argument can
honestly be made in support of either side of the proposition. An
erroneous location is certainly not so obvious as to necessarily
stamp it as a fraud."
When we consider the greater facilities possessed by the Land
Department of the government for ascertaining the true location,
and their superior fitness for deciding questions pertaining
thereto, over those of the judicial department, and when we also
remember that this location underwent the scrutiny of the officers
in the office of the Surveyor General for California, as well as
those of the General Land Office at Washington, and even of the
Secretary of the Interior himself, and was finally approved by them
all, we are not disposed to make further inquiry as to whether the
location was in all respects in exact accordance with what it might
possibly be if a resurvey were made under the additional light, if
any, now thrown upon the subject.
The result of all these considerations is that
The decree of the circuit court is affirmed.
MR. JUSTICE FIELD, concurring.
I concur in affirming the decree of the court below dismissing
the bill in this case. The bill was filed to set aside a patent of
the United States issued to Maria del Rosario Estudillo de Aguirre,
and her heirs, for land situated in Southern California, in what is
now known as San Bernardino County, granted to her by the Mexican
government. The grant was
Page 125 U. S. 302
of the sobrante or surplus lands remaining within the boundaries
of a tract called "San Jacinto," after satisfying two previous
grants. The claim under it was presented to the board of land
commissioners created by the Act of Congress of March 3, 1851, to
ascertain and settle private land claims in California, and was
adjudged to be valid to the extent of five leagues. On appeal to
the District Court of the United States for the Southern District
of California, the claim was confirmed to the surplus land lying
with in the designated boundaries, not exceeding in extent eleven
square leagues. The case being brought to this Court, the latter
decree was affirmed. The judgment here was rendered at the December
term, 1863. Then followed a protracted contest, accompanied with
much feeling, for the location of the claim. There being within the
San Jacinto tract a tin mine, then supposed to contain a rich body
of metal, every step in the survey was contested. Witnesses were
examined, and repeated arguments made by counsel representing the
parties for and against the location sought. As there were no
boundaries of the sobrante marked by which the claim could be
specifically designated, much was left to the judgment of the
Surveyor General, after having examined the topography of the
county, and heard the statements of witnesses familiar with it. The
limitation made by the grant itself only required that the claim
should be located within the exterior boundaries of the San
Jacinto, and not encroach upon the land covered by the previous
grants. In the determination of the survey and location, several
years were occupied. The matter was at different times before all
officers of the Land Department whose judgment could control any of
the several steps of the proceedings, the United States Surveyor
General for the state, the Commissioner of the General Land Office,
and the Secretary of the Interior. Every objection now urged
against the survey as a ground for revoking the patent was taken
before them, fully argued, and held to be untenable. At length, on
the 26th day of October, 1867, a patent was issued to the
claimants, from whom the defendant, the San Jacinto Tin Company,
derives its title.
Page 125 U. S. 303
In April, 1883, after the company had been in possession of the
property for nearly sixteen years and after all the other land
within the exterior boundaries of the San Jacinto tract had been
patented to the previous grantees or sold by the United States, so
that, if the location and survey on which the patent was issued
could be set aside, there would be no land left to satisfy the
grant without annulling titles which the United States had conveyed
to other parties, this suit was brought. And it was not brought
upon any new fact produced, nor any new reason assigned why the
original survey should be disturbed. All the grounds of complaint
presented for the new litigation had been urged and fully
considered before. And as if convinced that no beneficial result
could come to the United States from the reopening of the old
controversy, as if afraid that the United States might be cast in
the litigation, a bond was taken from one R. S. Baker, with
sureties, to keep the United States harmless from all costs and
expenses which might be incurred by or against them in the
prosecution of the suit. The original contest upon the survey was
carried on, and the expenses of it borne, by one Abel Stearns.
Since his death, this R. S. Baker married the widow of Stearns, and
has sought to retry the issues as to the survey which were decided
and determined in the Land Department years before, when Abel
Stearns was living. The bond recites that
"The Attorney General of the United States of America has this
day filed at the request of the above-named R. S. Baker a bill in
equity in the name of and on behalf of said United States of
America against the San Jacinto Tin Company"
to vacate the patent. Not for the interest of the United States,
not for the protection of their property, or to vindicate their
honor, but at the request of a private litigant, the name and power
of the United States are invoked by the Attorney General to set
aside a patent issued after a protracted contest upon the survey
with the predecessor of this litigant.
If this were a solitary instance where the name and power of the
United States have been used to serve the interests of private
parties, it might be passed by with the simple statement of the
facts. But unfortunately it is not a solitary
Page 125 U. S. 304
instance. The records of this Courts show that it has been a
frequent practice of the Department of Justice in authorizing suits
for the cancellation of patents. In
United States v.
Throckmorton, 98 U. S. 70,
which was here at the October term, 1878, it appeared that the
district attorney of California was directed by the Attorney
General to bring suits to vacate patents for lands in that state
upon security being given by one John B. Howard, or a deposit made
by him, of a sufficient sum to defray the expenses which might be
incurred in the litigation, and the bills filed upon such authority
were not sworn to, nor even authenticated by the signature of the
Attorney General. In this case, the bill bears the signature of the
Attorney General in office at the time it was filed. His signature
gives some assurance, which was wanting in the
Throckmorton case, of his belief in its allegations, and
that the suit is really brought by the United States to protect
their rights, and not merely to promote the interests of private
individuals. In that and other cases brought on the authority of
the Attorney General, the patents embraced many thousand acres of
land, and one of the judges holding the circuit court observed
that
"It is not to be supposed that, if the Attorney General were
persuaded that so large and valuable a property belonged to the
United States, he would have made the assertion of its rights to
depend upon the willingness or ability of private individuals to
defray the expense of the litigation."
United States v. Flint, 4 Sawyer 83. In the present
case, the bill seeks, by setting aside a patent of the United
States, to restore eleven leagues of land to the public domain, and
yet so doubtful did the Attorney General appear to consider the
rights of the United States to this vast tract that he required
from the party at whose instance the suit was brought a bond of
indemnity against the expenses of the proceeding.
In commenting upon a similar bond when the case of
Throckmorton was here, the Court, speaking by MR. JUSTICE
MILLER, said:
"It would be a very dangerous doctrine, one threatening the
title to millions of acres of land held by patent from the
government, if any man who has a grudge or a claim
Page 125 U. S. 305
against his neighbor can, by indemnifying the government for
costs and furnishing the needed stimulus to a district attorney,
institute a suit in chancery in the [name of the] United States to
declare the patent void. It is essential, therefore, to such a suit
that without special regard to form, but in some way which the
court can recognize, it should appear that the Attorney General has
brought it himself, or given such order for its institution as will
make him officially responsible for it, and show his control of the
cause."
P.
98 U. S. 71. And
yet this requirement does not seem to have been potential enough to
induce such an examination of the rights of the United States as to
justify in the present case the attempt to enforce them without
security from private parties.
I cannot admit that the Attorney General can, at the request of
private parties, rightfully allow the use of the name and power of
United States in proceedings for the annulment of patents, upon
such parties executing a bond as security for costs, or upon any
other stipulation of indemnity to them. If the United States have
not sufficient interest in property to justify the expenses of
proper litigation for its maintenance, they had much better let it
go. It would seem that Congress designed to put its mark of
condemnation upon the practice of obtaining services from private
parties, without incurring liabilities for them, such as was
adopted in this case when, on May 4, 1884, it declared that
"Hereafter no department or officer of the United States shall
accept voluntary service for the government, or employ personal
service in excess of that authorized by law, except in cases of
sudden emergency involving the loss of human life or the
destruction of property."
23 Stat. 17, c. 37. The language here used clearly indicates
that the government shall not, except in the emergencies mentioned,
place itself under obligations to anyone. The principle condemned
is the same, whether the party rendering the service does so
without any charge or because paid by other parties. The government
is forbidden to accept the service in either case.
It is not to be supposed that any head of the Department of
Justice has or would intentionally lend the name and power
Page 125 U. S. 306
of the government to further private ends, and yet there is no
practical difference between that course of procedure and the one
adopted in this case. The opinion of the court shows above all
controversy the utter groundlessness of the charges upon which it
is sought to set aside the survey. A very little attention to the
proceedings had before the Land Department in the contest upon that
survey would have satisfied the Attorney General of the futility of
any attempt to disturb it, and it is not probable that he would
have authorized any.
But independently of these considerations, I cannot assent to
the position announced in the opinion of the Court that the
Attorney General has unlimited authority, by virtue of his office,
to institute suits to set aside patents issued by the government.
He is the head of the Department of Justice, and as such he is
charged with the superintendence and direction of all district
attorneys of the United States, and generally of all litigation in
which the United States are interested. He is also the legal
adviser of the heads of the executive departments, and if they are
fraudulently imposed upon in the discharge of their duties or have
mistaken the law, he may at their request take such legal
proceedings as are necessary to correct their errors and revoke
their action. The legislation of Congress points out the infinite
variety of cases where legal proceedings may be taken on behalf of
the United States in the enforcement of their rights, the
protection of their property, and the punishment of offenses, and
wherever no authority is conferred by statute, express or implied,
for the institution of suits, none, in my judgment, exists.
Whenever Congress has felt it important that patents for lands
should be revoked, either because of fraud in their issue or of
breach of conditions in them, it has not failed to authorize legal
proceedings for that purpose. In a multitude of cases, titles to
lands, upon which whole communities live rest upon patents of the
United States. In several instances, cities having more than a
hundred thousand people residing within their limits are built on
land patented by the government. I cannot believe that it is within
the power of the Attorney General, to be exercised at any time in
the future -- this generation or the next -- as no
Page 125 U. S. 307
statute of limitations runs against the government, to institute
suits to unsettle the title founded upon such patents, even where
there are allegations of fraud in obtaining them. There must be a
time when such allegations will not be heeded. The examination into
alleged frauds, when the patents are applied for, ought to close
all controversy respecting them; clearly so unless, upon newly
discovered evidence of the most convincing character, Congress
should direct proceedings to be instituted to set aside the
patents, and that result can be obtained without impairing the
title of innocent parties. The power of the Attorney General, if
admitted when a single person holds title under a patent, may be
exercised in cases where a whole community holds under a similar
instrument. If, without the authority of Congress, such proceedings
may be instituted by him upon the repetition as in this case, of
old charges, or upon the unsupported statements of interested
parties, a cloud may at any moment be cast upon the titles of a
whole people, and there would be in his hands a tremendous weapon
of vexation and oppression. I can never assent to the position that
there exists in any officer of the government a power so liable to
abuse and so dangerous to the peace of many communities.
I do not recognize the doctrine that the Attorney General takes
any power by virtue of his office except what the Constitution and
the laws confer. The powers of the executive officers of England
are not vested in the executive officers of the United States
government simply because they are called by similar names. It is
the theory, and, I may add, the glory, of our institutions that
they are founded upon law; that no one can exercise any authority
over the rights and interests of others except pursuant to, and in
the manner authorized by, law. In the case of
The
Floyd Acceptances, 7 Wall. 676, speaking of the
powers of an officer of the government -- in that case, of the
secretary of war -- this Court said:
"When this inquiry arises, where are we to look for the
authority of the officer? The answer which at once suggests itself
to one familiar with the structure of our government, in which
all
Page 125 U. S. 308
power is delegated and is defined by law, constitutional or
statutory, is that to one or both of these sources we must resort
in every instance. We have no officers in this government, from the
President down to the most subordinate agent, who does not hold
office under the law, with prescribed duties and limited
authority."
If the Attorney General possesses the powers ascribed to him, in
the absence of any law defining them, we have this singular
condition presented: that the owner of property, derived from the
United States by the most solemn instruments, holds his possession
subject to the liability that it may be disturbed at any time by a
suit of the government, brought at the will of that officer -- a
not very creditable commentary on our institutions; but if the
owner can trace his title to some other source, he may have a
reasonable degree of certainty that he will not be unnecessarily
disturbed.
Aside from the qualifications thus expressed to the views of the
court, there is much in the opinion which gives me great
satisfaction. It holds that in suits brought by the government for
relief against an instrument alleged to have been obtained by fraud
or deceit, or any practice which would justify a court in granting
relief, the government must show, like a private individual, that
it has such an interest in the relief sought as entitles it to move
in the matter. If it be a question of property, a case must be made
in which the court can afford a remedy in regard to that property;
if it be a question of fraud which would render the instrument
void, the fraud must operate to the prejudice of the United States,
and if it is apparent that the suit is brought for the benefit of
some third party, and that the United States have no pecuniary
interest in the remedy sought, and are under no obligation to the
party who will be benefited, to sustain an action for his use. In
short, if there does not appear any obligation on the part of the
United States to the public, or to any individual, or any interest
of their own, they can no more sustain such an action than any
private person could under similar circumstances.
From this ruling some degree of peace and security may come to
holders of titles derived by patent from the government.
Page 125 U. S. 309
From the clear and full statement in the opinion of the Court of
the case and of the controversies before the Land Department,
involving the same questions now presented, there can be but one
conclusion, and that is that the decree below dismissing the bill
was in consonance with justice and right.