The boundaries of the Mexican grant, called the Moquelamos
grant, considered, the same being described as "bounded on the east
by the adjacent sierra."
Held, as the result of the
evidence adduced, that its eastern limit was at the point where the
foothills of the sierra begin to rise above the plain, near the
range line between ranges 7 and 8.
Mexican grants were of three kinds: 1, grants by specific
boundaries, where the donee is entitled to the entire tract; 2,
grants of quantity within a larger tract described by outside
boundaries, where the donee is entitled to the quantity specified
and no more; 3, grants of a certain place or rancho by name, where
the donee is entitled to the whole place or rancho. The second
kind, grants of quantity in a larger tract, are, properly, floats,
and do not attach to any specific land until located by authority
of the government. The Moquelamos grant was of this kind.
In the case of floating grants, as above described, it was only
the quantity actually granted which was reserved during the
examination of the validity of the grant. The remainder was at the
disposal of the government as part of the public domain. If within
the boundaries of a land grant made in aid of a railroad, such land
grant would take effect, except as to the quantity of land, or
float, actually granted in the Mexican grant. If that quantity
lying together was left to satisfy the grant, the railroad company
would be entitled to patents for the odd sections of the
remainder.
Page 127 U. S. 429
In the case of a floating Mexican grant, the government retained
the right of locating the quantity granted in such part of the
larger tract described as it saw fit, and the government of the
United States succeeded to the same right. Hence the government
might dispose of any specific tracts within the exterior limits of
the grant, leaving a sufficient quantity to satisfy the float.
Patents issued to the Central Pacific Railroad Company under its
land grant, for any sections lying easterly of range 6 east within
the outside boundaries of the Moquelamos grant, are valid, there
being enough land lying west of range 7 to satisfy the floating
grant of eleven square leagues.
The bill in this case was filed by the Attorney General on
behalf of the United States to vacate a patent granted to the
Central Pacific Railroad Company for lands lying east of range 6
within the claimed limits of the Moquelamos grant -- the ground of
relief being that all the lands within the exterior limits of that
grant were reserved lands.
Held that the lands in question
were not reserved lands, and that the bill should be dismissed.
Bill in equity to cancel a patent of public land issued to the
Central Pacific Railroad Company of California. Decree dismissing
the bill. Complainant appealed. The case is stated in the
opinion.
Page 127 U. S. 430
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is a bill in equity filed by the Attorney General on behalf
of the United States against the Central Pacific Railroad Company,
Kate D. McLaughlin, as executrix of Charles McLaughlin, deceased,
and others, to cancel and annul a certain patent of the United
States, issued on the 23d day of November, 1875, to the Central
Pacific Railroad Company from the General Land Office, for certain
sections and fractional sections of land in San Joaquin and
Calaveras Counties in California. The ground of relief stated in
the bill is that
Page 127 U. S. 431
the patent was issued without authority of law, for the reason
that all of said lands were within the boundaries of a certain
Mexican grant claim, called the "Moquelamos Grant," and were held
and reserved for adjustment and satisfaction of said claim at the
time when the line of railroad belonging to said company was
definitely fixed, and when, by virtue of that fact, the government
grant on which the patent was based accrued. The patent was granted
to the railroad company for the lands in question as portions of
its land grant under the Pacific Railroad Acts passed by Congress
in 1862 and 1864. This grant was originally made to the Central
Pacific Railroad Company of California; was assigned at the place
in question, by said company, to the Western Pacific Railroad
Company on the 31st day of October, 1864, which assignment was
approved by Act of Congress of March 3, 1865, and the two companies
named were consolidated together, and constituted the present
Central Pacific Railroad Company in August, 1870, upon which last
company devolved all the franchises, rights, privileges, and
property of the said two first-named companies.
The bill sets forth the alleged Mexican grant, called the
"Moquelamos Grant," and the proceedings in relation thereto upon
the claim made for its confirmation, before the commissioners to
ascertain and settle private land claims in California, and the
district and supreme courts of the United States, resulting in the
final rejection of said claim by the adjudication of the supreme
court on the 13th of February, 1865. The bill also states that the
lands included within the boundaries of said claim were held and
reserved during said proceedings, to await final adjudication,
until said last-mentioned date; that said lands lie in the Counties
of San Joaquin and Calaveras, on each side of the road of the said
railroad company, between the Cities of Sacramento and San Jose. It
recites those parts of the acts of Congress passed in 1862 and 1864
which granted to the Central Pacific Railroad Company of California
the right to construct a railroad and telegraph line from the
Pacific Coast at or near San Francisco to the eastern boundary of
the state, and states the fact that under and
Page 127 U. S. 432
by virtue of said acts, there were granted, for the purpose of
aiding in the construction of said road and telegraph line, ten
alternate sections of the public lands on each side of and within
twenty miles of the road, designated by odd numbers, not sold,
reserved, or otherwise disposed of by the United States, and to
which a homestead or preemption claim might not have attached at
the time the line of the road of said company should be definitely
fixed. The bill then alleges that on the 5th day of October, 1864,
the line of said road from the City of Sacramento to its western
terminus at the City of San Francisco, including that portion
opposite to the Moquelamos grant, was definitely fixed, and a map
of said definite location of said road was filed by the said
Central Pacific Railroad Company of California with the Secretary
of the Interior on the 8th of December, 1864, and that on the 31st
of January, 1865, the Secretary of the Interior ordered all of the
public lands not then sold, reserved, or otherwise disposed of
within the limits of twenty-five miles on each side of said road to
be withdrawn from preemption, private entry, and sale.
The bill then states the assignment on the 31st of October,
1864, by the Central Pacific Railroad Company of California to the
Western Pacific Railroad Company of the right to construct the road
from Sacramento to San Jose, with all privileges and benefits,
etc., and the confirmation of said assignment by Act of Congress
approved March 3, 1865. It further states that notwithstanding the
lands within the boundaries of the Moquelamos grant claim were held
and reserved for the satisfaction of said claim from the
acquisition of California until the final rejection of the claim on
the 13th day of February, 1865, embracing the time when the line of
said road was definitely fixed, yet the said patent was issued as
aforesaid to the said Central Pacific Railroad Company, as the
successor in interest of the Western Pacific Railroad Company, for
the lands in question, which it is alleged were embraced within the
boundaries of said Moquelamos grant claim.
The defendants, in their answer, deny that the line of the
railroad from Sacramento to its western terminus was
Page 127 U. S. 433
definitely fixed in October, 1864, or at any time prior to 1868,
or that a map of the definite location of the said line or of the
portions thereof opposite the Moquelamos grant was filed with the
Secretary of the Interior, or in the General Land Office, in
December, 1864, or at any time prior to the 1st of February, 1870.
They admit that on the 5th of October, 1864, the Central Pacific
Railroad of California designated the general route of its said
road between San Francisco and Sacramento, and on the 8th of
December, 1864, filed a map of the general route of its said
railroad in the Department of the Interior. They admit that the
lands in question are within twenty miles of the railroad as
definitely located and fixed.
They allege that the Western Pacific Railroad Company, in the
year 1868, definitely and finally located and fixed that portion or
section of the line and route of said railroad and telegraph
extending from a point at or near the City of Stockton to a point
at or near Sacramento, and, on the 1st of February, 1870, filed in
the Department of the Interior a map of said portion or section of
said line, and that after the consolidation and the formation of
the present Central Pacific Railroad Company, to-wit, on the 27th
day of February, 1873, the said company filed in the Department of
the Interior a map of the line and route of said railroad as
definitely and finally located and fixed from the end of the first
twenty-mile section from San Jose to a point at the end of the
133.16 miles from San Jose at or near Sacramento, and that said
line and route so definitely and finally located and fixed are
opposite to the lands in question, and include the line or section
definitely located by the Western Pacific, and shown on the map
filed in February, 1870.
The defendants further allege that the lands in question were
public lands, and were not reserved or disposed of in any manner at
the time of the passage of the acts of July 1, 1862, and July 2,
1864, respectively, and at the time of filing the general route of
the railroad in Dc ember, 1864, and of the withdrawal of the lands
by the Secretary of the Interior in January, 1865, and of the
definite and final location in 1868, and of filing the map of the
road in February, 1870,
Page 127 U. S. 434
and the map in February, 1873. They deny that said lands were
included in any Mexican grant or that they were reserved or held
under the laws of the United States for the satisfaction of any
claim under such grant, and they aver that said lands, during all
the times mentioned in the bill, up to and until the issuing of the
patent, were public lands of the United States; that said patent
was issued to said railroad company under and in accordance with
the provisions of said Pacific Railroad Acts, and was and is legal
and valid; that on the 12th of January, 1876, the Central Pacific
Railroad Company conveyed to Charles McLaughlin, in fee simple, the
lands in question, for which he paid a full and adequate
consideration. The defendants append schedules to their answer
showing the particular parcels for which they severally defend. To
this answer several exceptions were taken, and, being overruled,
the general replication was filed. Thereupon the parties joined in
a written admission of certain facts agreed to be true, which,
omitting those relating to the status of the parties, and the
organization of the corporations mentioned in the pleadings, is as
follows, to-wit:
"8. That on, to-wit, the 22d day of September, A.D. 1852, one
Andres Pico, since deceased, presented and filed his petition to
and with the Board of Land Commissioners appointed under the
provisions of the Act of Congress approved March 3, 1851, entitled
'An act to ascertain and settle private land claims in the State of
California,' in which petition he claimed in fee, as a grant by the
Mexican government, a certain tract of land situated in the said
state and district of California, and known by the name of
'Moquelamos,' for eleven square leagues of land, which he alleged
in his petition was granted to him within the boundaries as
described in the grant made June 6, A.D. 1846, by Pio Pico, the
then Mexican Governor of California, by virtue of the authority in
him vested, and said petition closed with a prayer to allow and
confirm to him, the petitioner, Andres Pico, the said tract of
land, as described in the grant made by the aforesaid governor, Pio
Pico, with the boundaries as therein set forth, to-wit: once sitios
de ganado mayor en el rio de Moquelumnes que linda al
Page 127 U. S. 435
norte con la orilla sure de dicho rio; al oriente con la sierra
immediata al sur con el terreno del Senor Gulnak; y al poniente con
los esteros de la plaza, and the translation thereof presented to
said board with said petition is as follows, to-wit:"
"Eleven square leagues on the River Moquelamos, bordering on the
north upon the southern shore of said river; on the east upon the
adjacent ridge of mountains; on the south upon the lands of Mr.
Gulnak, and on the west upon the estuaries of the shore."
"That said petition was in the usual form of petitions to the
Board of Land Commissioners, for the confirmation of claims to land
in California, founded upon grants made by the Mexican
government."
"9. That said Board of Land Commissioners proceeded to consider
and determine the said petition and claim of the said Andres Pico,
and on the 3d day of October, 1854, rendered a decree denying the
application of said petitioner for a confirmation of his said grant
of land, and rejecting his claim therefor."
"10. That afterwards, to-wit, on the 11th day of June, 1855, the
said claimant and petitioner, Andres Pico, appealed to and
petitioned the United States District Court for the Northern
District of California for a reversal of the proceedings and
decision of the said Board of Land Commissioners, and prayed that
the decree of rejection by said board be reversed and that the
petitioner's claim to the said tract of land above described be
declared valid, and that a decree be entered confirming the same to
the petitioner, Andres Pico, in accordance with said alleged grant
to him by the Mexican government, as aforesaid, and the said
district court thereupon proceeded to hear consider, and review the
said decision and decree of said Board of Land Commissioners, and
the petition of said Andres Pico, and at a stated term of said
court, held on the 24th day of April, 1857, made and entered a
decree reversing the decree of rejection of said claim by the said
Board of Land Commissioners, and adjudged and decreed that the
claim of petitioner was valid, and confirmed the Moquelamos grant
above described to the petitioner, Andres Pico, and defined the
boundaries thereof as follows: "
Page 127 U. S. 436
"The land of which confirmation is hereby made is of the extent
of eleven square leagues, and no more, and is known by the name of
'Moquelamos,' and is situate on the River Moquelamos, bordering
upon the north upon the southern shore of said river; on the east
on the adjacent ridge of said mountains; on the south on the land
of Mr. Gulnak, and upon the west upon the estuaries of the shore,
as described in the original decree and grant of the same by the
Governor of California on the 6th day of June, 1846, a copy of
which is on file in the transcript in this case."
"11. That thereafter the United States appealed from said decree
of confirmation to the Supreme Court of the United States, and at
the December term, 1859, of said court, the aforesaid decree of
confirmation of said district court was, by the Supreme Court of
the United States, reversed, and the case remanded, with directions
to have further evidence taken in the cause and claim of said
Andres Pico, for said Mexican grant Moquelamos. That thereafter the
said district court proceeded to take further evidence in said
case, and after such further evidence was taken, the case was again
brought before said district court for hearing, and by that court a
decree was entered on the 4th day of June, 1862, adjudging the
claim of the petitioner to be invalid, and rejecting the same."
"12. That thereafter, on, to-wit, the 15th day of October, 1862,
the petitioner, Andres Pico, appealed to the Supreme Court of the
United States from said decree of said district court rejecting his
claim as invalid. That a final hearing of said cause was had before
said supreme court, and on the 13th day of February, A.D. 1865, a
judgment was made and entered by said United States supreme court
affirming said decree of the United States district court,
rejecting the claim of said Pico, and adjudging the same to be
invalid."
"13. That all of the lands included within the boundaries of
said alleged Moquelamos grant above described lie in said state,
and lie on each side of the road of said the Western Pacific
Railroad Company, and opposite thereto in its course from said City
of Sacramento to said City of San Jose."
"14. That under and by virtue of the Act of Congress
Page 127 U. S. 437
approved July 1, 1862, entitled"
"An act to aid in the construction of a railroad and telegraph
line from the Missouri River to the Pacific Ocean, and to secure to
the government the use of the same for postal, military, and other
purposes,"
"and the act amendatory thereof, approved July 2, 1864, commonly
known as the 'Pacific Railroad Acts,' the Central Pacific Railroad
Company of California was authorized to construct a railroad and
telegraph line from the Pacific Coast at or near San Francisco to
the eastern boundary of said State of California, and under and by
virtue of said acts of Congress there were granted for the purpose
of aiding in the construction of the road and telegraph line of
said the Central Pacific Railroad Company of California ten
alternate sections of the public lands of the United States on each
side and within twenty miles of the road of said company,
designated by odd numbers, not sold, reserved, or otherwise
disposed of by the United States, and to which a homestead or
preemption claim might not have attached at the time the line of
the road of said company should be definitely fixed."
"15. That the said railroad company filed its assent to said
Central Pacific Railroad Acts at the time and in the manner in said
acts provided."
"16. That on, to-wit, the 23d day of December, 1864, the
Secretary of the Interior of the United States ordered all of the
public lands not then sold, reserved, or otherwise disposed of
within the limits of twenty-five miles on each side of the route or
line of the road of said railroad company to be withdrawn from
preemption, private entry, and sale in accordance with the
provisions of said acts of Congress, for said railroad company, and
said order was thereupon transmitted to the register and receiver
of the United States Land Offices at Stockton, San Francisco, and
Sacramento, State of California, and received by them on the 31st
day of January, 1865."
"17. On the 29th day of September, 1866, the president of the
Western Pacific Railroad Company made and filed with the United
States Surveyor General of the State of California the varied
statement provided for by § 4 of said Act of July 1, 1862, and § 6
of said Act of July 2, 1864, showing the
Page 127 U. S. 438
construction, completion, and equipment by said Western Pacific
Railroad Company of the most westerly twenty miles,
viz.,
the twenty miles next northeasterly from the City of San Jose, of
the railroad and telegraph line of said Western Pacific Railroad
Company, in compliance with and conformity to the requirements and
provisions of said sections of said acts of Congress, and said
surveyor general thereupon, at the request of said railroad
company, notified the commissioners designated and provided for by
said acts to examine said twenty miles of said road and telegraph
line and report thereon in accordance with the provisions of said
acts of Congress, and on the 5th day of October, 1866, said
commissioners made their report and certificate to the effect that
said twenty miles of road and telegraph line mentioned in said
verified statement had been constructed, completed, and equipped by
said railroad company, as provided and prescribed in and by said
acts of Congress."
"Similar verified statements were made by the president of said
Western Pacific Railroad Company as follows: on April 28, 1869, for
a section of the road beginning at the junction thereof with the
road of the Central Pacific Railroad Company of California at the
American River bridge, near Sacramento city, and extending thence
southwesterly twenty (20) miles; also, on October 12, 1869, for a
section of said road beginning at the westerly end of the
last-mentioned section, and extending thence southwesterly
sixty-three (63) miles; also, on December 29, 1869, for a section
of said road beginning at the westerly end of the last-mentioned
section and extending thence twenty and two-tenths (20.2) miles to
the easterly end of the first-mentioned section of twenty miles,
beginning at San Jose."
"That all those statements were, upon their being made, filed
with said surveyor general, and he did forthwith, upon the filing
of each statement respectively, and at the request of said company,
notify said commissioners. That said commissioners did thereupon
examine said sections of said road, and made their respective
reports thereon, to the same effect as upon the first section of
said road, as aforesaid, said reports
Page 127 U. S. 439
being made, respectively, on the 29th day of April, 1869, and
the 13th of October, 1869, and the 6th day of January, 1870."
"That each of the four reports of said commissioners was
thereupon filed with the Secretary of the Interior, and he
thereupon recommended the acceptance of the same, and the issue of
the bonds and patents for lands due on account of said sections of
road, agreeably to the provisions of said Pacific Railroad Acts,
and thereupon the President of the United States approved the same,
and ordered the Secretary of the Interior and the Secretary of the
Treasury to carry the said recommendation into effect, the first of
which approvals by the President of the United States was made on
the 4th day of December, 1866, and the last on the 21st day of
January, 1870. That the four sections above mentioned comprise the
whole of said road from the City of San Jose to the City of
Sacramento. That said road has been in full operation, and has been
operated for the transportation of passengers and freight, since
the 9th day of June, A.D. 1869."
"18. That thereafter there was issued, on the 23d day of
November, 1875, to said Central Pacific Railroad Company (?) under
the signature of the President of the United States, attested by
the Recorder of the General Land Office and under the seal of the
General Land Office, what purported to be, and in form was, a
patent."
"That the patent was in the usual form of the patents issued by
the United States to the several railroad companies under and in
pursuance of said Pacific Railroad Acts of Congress."
"19. That said patent described and purported to convey to said
railroad company the several tracts of land mentioned and described
in said bill of complaint."
"20. That all of said lands described in the bill of complaint
herein are opposite to, and within the 25-mile limits on each side
of, the route or line of said railroad company's road, as laid down
on the map filed by said Central Pacific Railroad Company of
California in the Department of the Interior on the 8th day of
December, 1864."
Besides these admissions, a large amount of evidence was
Page 127 U. S. 440
taken in the case, and a final hearing was had before the court
below in November term, 1886, and a decree was made dismissing the
bill of complaint.
The court, in its opinion, held, among other things:
1. That the map of the route of the Western division of the
Central Pacific Railroad of California, filed with the Secretary of
the Interior December 8, 1864, is the map of the general route, and
not of the line as "definitely fixed" within the meaning of the
Land Grant Act of 1862.
2. That the map of the route of said road as finally located and
constructed, filed with the Secretary of the Interior February 1,
1870, and accepted as such by that officer, is the map of definite
location.
3. That the Moquelamos grant was finally rejected February 13,
1865, after which the lands within the exterior boundaries of the
grant ceased to be
sub judice, and became public lands, to
the odd sections of which, within twenty miles of the line of the
road, the right of the railroad company attached and became
indefeasible immediately upon the filing of the map of definite
location of the road and the acceptance thereof as such by the
Secretary of the Interior.
4. That as, from the year 1855, the land between the Moquelamos
and Calaveras Rivers east of the range (or meridian) line between
ranges 7 and 8 was treated by the government as lying outside of
the Moquelamos grant claim, and as being public land, by running
the section lines, and filing plats of survey, and selling some of
the lands, and opening the others to private entry, etc., the
government should be held in a court of equity to be estopped as
against the grantees of the patentee from now alleging that those
lands are within the boundaries of the claim.
5. That the withdrawal of the lands upon filing the map of the
general route of the road, for twenty-five miles on each side of
the line indicated, protected the lands against the attaching of
any other right as against the railroad company until the filing of
the map of definite location.
Without expressing at present any opinion on the conclusions
thus reached by the circuit court, we will proceed to
Page 127 U. S. 441
examine 1st, whether the land in question was actually within
the outside limits of the pretended Moquelamos grant? If it was,
and if the title of the railroad company accrued whilst the grant
was under judicial examination, we will inquire 2dly, whether, for
that reason, the railroad grant was prevented from taking effect
within the said outside limits?
The defendants adduced evidence to show that the greater part of
the lands in question were not embraced within the limits of the
grant. Those limits are fairly well defined on three sides, the
northern boundary being the Moquelamos or Moquelumne River, the
southern, the lands of Mr. Gulnak (being the "Campo de los
Franceses"), and the western being the "estuaries of the shore," or
the marshes bordering on the San Joaquin River, not very clearly
defined in outline, but sufficiently so to serve as a boundary. On
the east side, the supposed grant is bounded con la sierra
immediata -- "by the adjacent ridge of mountains," or "by the
adjacent sierra." This is interpreted as meaning to exclude the
sierra itself -- in other words, the grant extends, according to
its terms, to the commencement of the mountain or sierra.
One of the witnesses, R. C. Hopkins, who had been employed by
the government for more than thirty years in the surveyor general's
office in California in connection with the Spanish land grants,
making translations and testifying in the courts, was asked to
translate the descriptive portion of the Moquelamos grant, which he
did as follows:
"Eleven square leagues on the Moquelamos River, which bounds on
the north with the southern shore of the said river, on the east
with the contiguous sierras, on the south with the lands of Mr.
Gulnak, and on the west with the estuaries of the beach."
He further testified that when "sierra immediata" is called for
as a boundary, the "sierras" are excluded.
Now if there were any mountain ridge or sierra in the
neighborhood of the other boundaries called for, lying to the
eastward and in the vicinity of the Gulnak tract, the solution
would be easy. But the Sierra Nevada is the only mountain in that
direction, and that is sixty or seventy miles east of the line of
the railroad, and still further from the marshes of
Page 127 U. S. 442
the beach forming the western boundary of the grant -- an extent
which would give a total area of over eighty square leagues. The
defendants contend that such an extension of the outside boundaries
of the grant (supposing it to have been a real grant) cannot be
presumed to have been in the minds of the parties, and they produce
evidence to show that, starting from the marshes on the west and
proceeding eastwardly between the Gulnak tract and the Moquelumne
River, the land is level valley land as far as the "Jack Tone
Road," which runs north and south on the range line between ranges
7 and 8 E., about seven miles east of the railroad, and that beyond
this road the lands are hilly, covered with timber and brush, and
gradually increase in altitude above the sea level up to the Sierra
Nevada itself, becoming more broken and precipitous as we
proceed.
As an example of this evidence, the testimony of Edward E.
Tucker, an experienced surveyor in that country and official
surveyor of San Joaquin County, may be referred to. Among other
things, he says:
"I will say that from a line east of what is called the 'Jack
Tone Road' -- an irregular line about, well, I suppose, averaging
say two miles east of the road, some places it comes within
three-quarters of a mile of the Jack Tone Road and at other places
it is two or three miles from it -- the ground becomes more or less
broken and hilly, and in some places there are well defined hills,
and in other places it is what would be designated, I suppose,
rolling land; but the general character of the country from the
point I have designated, east, between the Moquelumne and Calaveras
Rivers, is irregular. It is up and down, and generally rising --
that is to say, the further east a person goes, the higher the
hills become and the more irregular they are, until the county line
is reached. There are a number of places where there are quite high
hills and some deep elevations, and other places where perhaps a
whole section would be what we call rolling land. There are no very
steep hills or very high hills in a particular section, but it is
what I would call, generally speaking, hilly land, the whole of it,
and a rising tendency going toward the east.
Page 127 U. S. 443
There are a great many sections and quarter-sections that I
could locate from memoranda that I have in my book; hills I could
designate particularly; quarter-sections if required; but generally
from that line indicated, east, the country is hilly. . . ."
"Q. 50. What can you say generally with reference to the
elevation of the country going east from the line indicated by you
as marking the division line between the plain land and the well
defined hills near the Jack Tone Road, and between the Moquelumne
and Calaveras Rivers?"
"A. The country as I described it before -- some of it is
rolling, some rough, hilly, and broken; but it is all gradually,
and some very rapidly, ascending. It is constantly ascending --
that is, the hills, as you go east, are higher than -- they keep
getting higher as you go east. . . ."
"Q. 54. In your opinion as a surveyor and civil engineer, where,
with reference to the tract of country between the Calaveras and
Moquelumne Rivers, does the Sierra Nevada range of mountains begin
as a range or system?"
"A. In my opinion, a range of mountains begins -- what you might
properly call the base of the mountains -- on the plains where the
land commences to go up regularly, and the hills are well defined
-- what are generally called foothills of the mountains, and in
this instance I think the mountains begin where I have drawn that
heavy red line on this diagram, Exhibit 18. I, of course, want it
understood that I am not stating that those are mountains down
there. I do not claim that they are mountains. I claim that they
are well defined hills, and that they are regular from there east.
They run right into the mountains, and there is no way of drawing a
line from them mountains east without going over hills -- that is,
a north and south line."
The witness further testified on cross-examination, as
follows:
"Q. 1. Did you hear, or come to know from anybody, that the
rolling lands in range 9 east, any part of it, was ever designated
as any part of the Sierra Nevada Mountains?"
"A. No, sir."
"Q. 2. Did you ever know or hear of the rolling land in range 10
east being ever designated as part of the Sierra Nevada
Mountains?"
"A. A great deal of land in both those ranges
Page 127 U. S. 444
has always been referred to by myself and others in speaking of
it, as foothills. We never call it the Sierra Nevada Mountains; we
speak of it as foothills -- going up to the mountains."
"Q. 3. Did you ever hear of rolling hills, if any there be, in
range eight, designated as Sierra Nevada Mountains?"
"A. No, sir. I have heard that spoken of in the same manner --
as foothills, but not as mountains."
This seems to us to be a fair exhibit of the general evidence on
the subject. The complainant produced a number of witnesses to show
that there is a mountain called "Bear Mountain," east of range 11,
commencing at the eastern side of said range, which would be
twenty-four miles east of the Jack Tone Road, thirty-one miles east
of the railroad, and from thirty-six to forty miles east of the
marshes of the San Joaquin. But the parties concur in considering
the Moquelamos grant as comprised between the Moquelumne River on
the north and the Calaveras River on the south, and this Bear
Mountain is entirely south of the Calaveras. There is, north of it
and separated from it by the Calaveras River itself, a hill, called
"Central Hill," but it is no more of a mountain than many other of
the high and abrupt hills at that distance eastward from the
railroad. One of the most intelligent of the complainant's
witnesses referred to was a Mr. Terry, a surveyor and teacher. The
following is the material part of his examination on the
subject:
"Q. 3. State whether or not, as a surveyor, you have been
engaged at any time by the United States to survey public
lands."
"A. I have."
"Q. 4. State what you surveyed in that neighborhood of country
as United States surveyor."
"A. Townships four and five north, ranges eleven and twelve
east, Mount Diablo base and meridian."
"Q. 5. state whether you know a mountain in that locality known
as 'Bear Mountain.'"
"A. Yes, sir, and sometimes that range of mountains is called
'Hog Back.' But it is laid down as 'Bear Mountain' on the maps, and
is generally called so by surveyors."
"Q. 6. Please explain the general features, the condition,
Page 127 U. S. 445
and appearance of that mountain known as 'Bear Mountain.'"
"A. Well, it is a low mountain. The north end of it is covered
with chaparral or shemisel, or whatever it is called."
"Q. 7. How in regard to its extension northward?"
"A. It does not extend north of the Calaveras River."
"Q. 8. Do you know a mountain or high elevation known as
'Central Hill?'"
"A. Yes, sir."
"Q. 9. state what connection there is, if any, between Central
Hill and Bear Mountain."
"A. There is no connection that I know of. The Calaveras River
runs between them."
"Q. 11. State whether you know the locality north and south from
and including Bear Mountain, to and including Central Hill, and for
a few miles north of that."
"A. Yes sir; that was in may contract. I traveled all over that
range of hills in surveying."
"Q. 12. Did you survey all that country?"
"A. Yes, sir; that was in my contract."
"Q. 13. Please give a general description, and as particular a
description as you can, of that country north and south from and
including Bear Mountain, to and including a few miles north -- say
five miles north -- of Central Hill."
"A. There is a low range of hills running from the Calaveras
River northerly -- perhaps a little bit east or west of north --
that is pretty hilly. That is from the west boundary -- bluff, or
bank, as you may call it -- of the Calaveras River and of Chili
Gulch. That is in townships four and five north, range eleven
east."
"Q. 14. Describe the character of that land."
"A. It is hilly land; some of it is agricultural. I have
surveyed several mines in there, about Central Hill and further up.
I do not know as I can tell exactly how those mines are located.
The hilly lands of which I have been speaking are those north of
the Calaveras River."
"Q. 15. State what the general character and appearance of Bear
Mountain is."
"A. It is a low mountain, and there is considerable oak and pine
timber on it; but on the north end there is chaparral. Perhaps a
mile up, running south, is covered with this brush."
"Q. 16. Does not Bear Mountain appear conspicuous and
Page 127 U. S. 446
in full view for, say, ten or twelve miles west of it?"
"A. Yes sir, from most points on the west it does. Ordinarily,
this Bear Mountain is within sight for several miles down here to
the west. I used to travel over that country to the west of Bear
Mountain, and between the Rivers Moquelumne and Calaveras a good
deal."
We do not perceive that this evidence shows the existence of a
sierra at this point, especially between the two rivers. But even
if it did, it is still nearly forty miles east of the San Joaquin
Marshes, and the contents of the entire territory within the
granted limits would be over fifty square leagues, an extent of
country which, compared with the quantity of lands granted (eleven
leagues), cannot, any more than can the eighty square leagues
embraced within the limits of the Sierra Nevada, be presumed to
have been within the intention of the parties. It would require
clear and positive evidence to establish such a result.
The defendants contend that the commencement of the hilly land
at or near the Jack Tone Road is the true commencement of the
"adjacent sierra" named in the grant, and that the hilly and broken
land east of that road is all comprehended in the foothills of the
mountain, and excluded from the grant. In confirmation of this
view, they not only rely on the topographical evidence which has
been noticed, but on the fact that when the claim to the Moquelamos
grant was first presented to the Board of Land Commissioners in
1852 and for some time afterwards, the petitioner Andres Pico did
not pretend or claim that the grant extended further east than the
Jack Tone Road, and on the further fact that the Surveyor General
for California, in surveying the public lands, and delimiting the
boundaries of unconfirmed grants under the authority conferred upon
him by the appropriation Act of August 31, 1852, 10 Stat. 91,
assumed the range line between ranges 7 and 8 (or the Jack Tone
Road) to be the utmost eastern boundary of the Moquelamos grant,
and made his surveys up to that line, and no further. And in
September, 1864, when further surveys were proposed, the attorneys
of Pico gave notice to the surveyor general that the lands
Page 127 U. S. 447
in townships 2, 3, and 4, south of the Moquelumne River, in
ranges 5, 6, and 7 east -- that is, the ranges immediately west of
the Jack Tone Road -- were claimed by Pico under the Moquelamos
grant, and that the said claim had been appealed to the Supreme
Court of the United States, and was then pending, and requested the
surveyor general to suspend proceedings for preempting said land,
or any part thereof. The quantity of land thus claimed to be within
the said grant was more than twice the amount required to satisfy
the grant, showing that the limits named in the notice did not
refer to a specific location of the eleven leagues, but to the
outside limits of the grant. This evidence, it is true, might not
of itself be binding as against the government, but, taken in
connection with the acts of the government itself and the conduct
of its officials, from high to low, acquiescing in this view, it
shows a state of things, a concord of words and acts between the
parties interested, which, on a question of boundary, is not only
admissible, but entitled to much weight, especially after so long a
period elapsed before this suit was instituted.
Another circumstance relied on to show that the limits of the
grant did not extend, at most, further east than the commencement
of the hills near the Jack Tone Road is that the southern boundary
called for is the land of Gulnak. This land is conceded to be the
French Camp Grant, or Rancho Campo de los Franceses. And this grant
was so determinately located by the accurate
diseno
annexed to it that its position was established without difficulty,
and has never been seriously questioned. As thus located, its
northern line coincides in part with the Calaveras River, being
situated a little to the north of the river towards the west, and
the whole tract lies altogether west of the Jack Tone Road, and
does not at the nearest point approach it within less than half a
mile, so that if the Moquelamos grant (as required by its
description) is to be bounded on the south by the Gulnak tract, it
cannot itself extend to the east of said road without being forced
to do so by the call of some distinct natural object. On the whole,
we are satisfied that the outside boundary
Page 127 U. S. 448
limits of the Moquelamos grant, as called for in the grant
itself, do not extend east of the Jack Tone Road or the edge of the
hills commencing near the same. This result would dispose of the
present case with regard to nearly all the land in question
therein. But as some of it lies west of said road in range 7, and
as the railroad land grant extends to the west of said road, it
will be necessary to examine the other question referred to,
namely, If the lands in controversy did lie within the exterior
limits of the Moquelamos grant and if the title of the railroad
company did accrue while that grant was under consideration in the
courts, did those facts prevent the railroad land grant from taking
effect?
The Moquelamos grant belongs to that class of grants which may
properly be called "floats" -- that is, grants of a certain
quantity of land to be located within the limits of a larger area.
Mexican grants were of three kinds: (1) grants by specific
boundaries, where the donee is entitled to the entire tract,
whether it be more or less; (2) grants of quantity, as of one or
more leagues within a larger tract described by what are called
"outside boundaries," where the donee is entitled to the quantity
specified, and no more; (3) grants of a certain place or rancho by
name, where the donee is entitled to the whole tract according to
the boundaries given, or, if not given, according to its extent as
shown by previous possession.
Higueras v. United
States, 5 Wall. 827,
72 U. S. 834.
In the first and third kinds, the claim of the grantee extends to
the full limits of the boundaries designated in the grant or
defined by occupation, but in the second kind -- a grant of
quantity only, within a larger tract -- the grant is really a
float, to be located by the consent of the government before it can
attach to any specific land, like the land warrants of the United
States. A float may be entitled to location either on any public
lands in the United States or only in a particular state or
territory or within a more circumscribed region or district. Its
character remains the same. The present grant is one of this kind.
If it only extends to the Jack Tone Road, as we suppose, it is
still largely in excess of the quantity granted. If it extends, as
the complainant insists, to the Bear Mountain or the Sierra
Page 127 U. S. 449
Nevada, the region embraced would be immensely enlarged,
comprising over fifty square leagues in the one case, and over
eighty in the other. Can it be that such an extensive region was
under interdict as reserved land, absolutely exempt from
disposition, even by Congress, during the whole period covered by
the litigation respecting the validity of the grant, which, in the
end, even if found valid, was only for the quantity of eleven
square leagues? The investigation continued thirteen years. The
grant was found to be a wretched fraud. Even if signed by Pico, it
was got up after the Mexican authority had ceased, and was never
confirmed by the departmental assembly, as no such assembly then
existed, and at the date on which it purports to have been
confirmed, the departmental assembly was not in session. It was
therefore for good cause that it was rejected by the courts.
Laying all this aside, however, and looking at the claim as one
fairly
sub judice, we may repeat our question whether it
can be possible that so great a region of country was to be
regarded as reserved from alienation for so small a cause -- an
ordinary eleven-league grant? It is contended that the case of
Newhall v. Sanger, 92 U. S. 761, has
concluded this question by an answer in the affirmative. This case
will be examined hereafter. Meantime, let us look at the nature of
the supposed case. A grant of eleven square leagues is made out of
a country seventy or eighty miles in length, and from six to ten in
width, containing over eighty square leagues, and this whole eighty
leagues is supposed to be retired from the disposable public domain
for a period of years, no one knows how long. Does this look
reasonable?
One or two observations may be made calculated to show the
precise question in a still stronger light.
First. It is
in the option of the government, not of the grantee, to locate the
quantity granted, and, of course, a grant by the government of any
part of the territory contained within the outside limits of the
grant only reduces by so much the area within which the original
grantee's proper quantity may be located. If the government has the
right to say where it shall be located, it certainly has the right
to say where it
Page 127 U. S. 450
shall not be located, and if it sells land to a third person at
a place within the general territory of the original grant, it is
equivalent to saying that the quantity due to the original grantee
is not to be located there. In other words, if the territory
comprehended in the outside limits and bounds of a Mexican grant
contains eighty leagues, and the quantity granted is only ten
leagues, the government may dispose of seventy leagues without
doing any wrong to the original grantee. This was the Mexican law,
and, of course, it is our law.
United States v.
Armijo, 5 Wall. 444,
72 U. S. 449.
In practice, it is true, our authorities, in administering the
public lands, have generally allowed the original grantee to make
his own selection of the point where he will have his quantity
located, provided he has it all located together in one tract. But
this is a matter of favor, and not a matter of right. If this were
not so, the right of way granted for the railroads by Congress
would be subject to question and litigation. There cannot be any
doubt, however, of the validity of these grants. The cases which
show the law on this subject are numerous; it is only necessary to
refer to a few of them. The following may be consulted:
Fremont v. United
States, 17 How. 542,
58 U. S. 558,
58 U. S. 565;
United States v.
Armijo, 5 Wall. 444;
Hornsby v.
United States, 10 Wall. 224,
77 U. S.
234-235;
Henshaw v.
Bissell, 18 Wall. 255,
85 U. S.
266-267;
Miller v. Dale, 92 U. S.
473,
92 U. S.
476-477;
Van Reynegan v. Bolton, 95 U. S.
33,
95 U. S. 36.
According to this rule of law, though the Moquelamos grant had
been unquestionably genuine and valid, the government would have
had a right to dispose of the whole territory east of range 6,
without infringing in the slightest degree the rights of Pico, who
would still have had his eleven leagues at the western extremity of
the territory. Any construction of the laws which would tend to
trammel and obstruct this right of the government and render its
acts in making alienations void should be made with great caution,
and a careful consideration of the necessary import of the terms of
such laws. An illustration of the absurdity which may be involved
in extending the supposed reservation from sale and alienation to
this kind of grants is shown in the large extent of country
which
Page 127 U. S. 451
has been covered by some of them known to the records of this
Court. In 1822, a grant of twenty leagues square, or four hundred
square leagues of land, was made by the supreme government of
Mexico to President Yturbide, to be located in Texas. In 1835 the
Mexican Congress authorized his heirs to locate the land in New
Mexico, or in Upper or Lower California. In 1841, it was decreed
that it should be located in Upper California -- that is, the
present State of California. This claim was actually presented to
the Board of Land Commissioners, and appealed to the district
court, and thence to this Court. Now according to the contention of
the complainant in the present case, all California was interdicted
territory during the pendency of that claim before the board and in
the courts. The case is reported in
63 U. S. 22 How.
290,
Yturbide's Executors v. United States. This case
arose under the same law as that upon which the corporation under
the laws of Great Act of March 3, 1851. If a reservation of an
entire territory is to be implied from a floating grant of quantity
within it, then logically every float or land warrant issued by the
government should, until actually located, operate as a reservation
of the entire body of public lands.
We can well understand that Indian reservations and reservations
for military and other public purposes of the government should be
considered as absolutely reserved and withdrawn from that portion
of the public lands which are disposable to purchasers and
settlers, for in those cases the use to which they are devoted and
for which they are deemed to be reserved extends to every foot of
the reservation. The same reason applies to Mexican grants of
specific tracts, such as a grant for all the land within certain
definite boundaries named or all the land comprised in a certain
rancho or estate. But this reason does not apply to grants of a
certain quantity of land within a territory named or described,
containing a much larger area than the amount granted, and where,
as in the present case, the right of location within the larger
territory is in the government, and not in the grantee. In such
case, the use does not attach to the whole territory, but only to a
part of it and to such part as the government chooses to designate,
provided the requisite quantity be appropriated.
Page 127 U. S. 452
The case of the
Leavenworth &c. Railroad Co. v. United
States, 92 U. S. 733,
preceded the case of
Newhall v. Sanger, and was relied on
in the latter case. But the
Leavenworth case related to an
Indian reservation and the legislative grant upon which it
depended, 12 Stat. 772, entitled "An act for a grant of lands to
the State of Kansas, in alternate sections, to aid in the
construction of certain railroads and telegraphs in said state,"
had an express proviso
"that any and all lands heretofore reserved to the United States
by any act of Congress, or in any other manner by competent
authority, for the purpose of aiding in any object of internal
improvement, or for any other purpose whatsoever, be, and the same
are hereby, reserved to the United States from the operation of
this act, except so far as it may be found necessary to locate the
routes of said road and branches through such reserved lands, in
which case the right of way only shall be granted."
The land grant in that case was construed as taking effect
immediately, and as vesting a present title in the State of Kansas,
though a survey of the lands and a location of the road were held
to be necessary to give precision to it, and attach it to any
particular tract. The treaty with the Great and Little Osage tribe
of Indians, made June 2, 1825, which contained a cession to the
United States of certain land, contained this clause, to-wit:
"Within the limits of the country above ceded and relinquished
there shall be reserved to and for the Great and Little Osage tribe
or nation aforesaid, so long as they shall choose to occupy the
same, the following described tract of land."
The described tract embraced the land in question in the cause,
and the court held that it was no part of the public lands of the
United States, and that no part of it passed to the State of Kansas
under the grant, though the railroad passed through it. In our
judgment, that case differed materially from the one now before us.
The whole reservation was appropriated to the use of the Osage
nation as long as they chose to occupy it.
The case of
Newhall v. Sanger, 92 U. S.
761, on which the complainant confidently relies, was
argued and decided shortly after the
Leavenworth case. It
arose upon a bill to quiet title
Page 127 U. S. 453
to a quarter-section of land situated in township 3 N., range 7
E., and therefore west of the Jack Tone Road, and within the then
admitted limits of the Moquelamos grant, now under discussion. We
have taken the pains to examine the original record. The bill is
comprised in a page and a half, and the whole record in six pages.
Sanger, the complainant below, claimed title through the Western
Pacific Railroad Company, to whom a patent had been issued in
April, 1870, in professed compliance with the requirements of the
acts of Congress of 1862 and 1864. The bill alleges that Newhall
claimed title to the same land under a subsequent patent, which
recited that the first patent had issued by mistake to the Western
Pacific Railroad Company, because the land was within the exterior
limits of a Mexican grant called "Moquelamos." The bill alleged
that this grant was rejected by the final decision of this Court in
December term, 1864, before the reservation of lands for the
railroad was made; but that the President, in making the second
grant, pretended that the Moquelamos grant was not rejected until
the 13th day of February, 1865, after the reservation for railroad
purposes, claiming the right to look into the minutes of this Court
to ascertain the precise day when the claim was rejected, and
thereby disregarding the mandate, whereas the complainant contended
that the rejection took effect from the first day of the term.
This was the substance of the bill. The only issue it raised was
as to the time when the rejection of the grant legally took effect,
whether at the beginning of the term (December 5, 1864), or on the
actual day of rendering the judgment (February 13, 1865), one date
being before and the other after the withdrawal of the lands from
sale for the benefit of the railroad company, and such withdrawal
being assumed to be the act by virtue of which the railroad title
accrued. There was nothing in the bill to show that the boundaries
named in the grant contained any more than eleven square leagues of
land, the quantity granted.
The bill was demurred to, the cause was submitted without
argument, and the demurrer was overruled. The defendant adhering to
his demurrer, a decree was entered for the
Page 127 U. S. 454
complainant. An appeal was then taken to this Court, the cause
was submitted on printed briefs, and the decree of the circuit
court was reversed. The opinion took no notice of the fact (which
did not appear in the record) that the grant was one of that class
in which the quantity granted was but a small part of the territory
embraced within the boundaries named. It proceeded throughout as it
would have done on the supposition that the grant covered and
filled up the whole territory described. It simply dealt with and
affirmed the general proposition that a Mexican grant, while under
judicial investigation, was not public land, open for disposal and
sale, but was reserved territory, within the meaning of the law --
a proposition not seriously disputed. On the question of time when
the rejection of the grant took effect, it held with the defendant,
that the records of this Court could be consulted to ascertain the
precise day of rendering judgment. After deciding this point, there
was no difficulty, under the admission of the bill, in reversing
the decree of the circuit court. The opinion, however, examined
somewhat at large the grounds on which it should be held that
Mexican grants, whether valid or invalid, while under judicial
consideration, should be treated as reserved lands. The principal
reason was that they were not "public lands" in the sense of
congressional legislation, those terms being habitually used to
describe such lands as are subject to sale or other disposal under
general laws. The Pacific Railroad Acts of 1862 and 1864 only
granted, in aid of the railroads to be constructed under them,
"every alternate section of public land . . . not sold,
reserved, or otherwise disposed of by the United States, and to
which a preemption or homestead claim may not have attached at the
time the line of said road is definitely fixed."
The lands comprised in a Mexican grant, it was held, must be
regarded not as "public lands," but as "reserved" lands, because,
by the treaty with Mexico, all private property was to be
respected. And when the Act of March 3, 1851, created a board of
commissioners to examine all claims to Mexican grants, the
thirteenth section declared
"that all lands the claims to which have been finally rejected
by the commissioners in the manner herein provided,
Page 127 U. S. 455
or which shall be finally decided to be invalid by the district
or supreme court, and all lands the claims to which shall not have
been presented to the commissioners within two years after the date
of this act, shall be deemed, held, and considered as part of the
public domain of the United States,"
9 Stat. 633, implying that until then they were not part of the
public domain. The same conclusion was thought to be inferred from
the Act of March 3, 1853, which introduced the land system into
California, the sixth section of which, among other things,
exempted from preemption and sale "lands claimed under any foreign
grant or title." And this reservation, the court argued, would
apply equally to grants that were fraudulent and void, as to those
that were valid, for, until investigated, it could not be known
which were valid and which were void. This reasoning of the Court
in
Newhall v. Sanger is entirely conclusive as to all
definite grants which identified the land granted, such as the case
before it then appeared to be, but is it fairly applicable to
floats? -- that is to say, grants of a quantity to be located
within a certain tract or territory, whether of limited extent,
marked by certain bounds, or anywhere in the state, as in the case
of Yturbide? Many small grants of only a few leagues were
susceptible of location in large territories. The Alvarado grant,
claimed by Fremont,
Fremont v. United
States, 17 How. 542, was only for ten square
leagues within a region containing upwards of a hundred square
leagues. The description in the grant was
"the tract of land known as 'Mariposas,' to the extent of ten
square leagues, within the limits of the Sierra Nevada, and the
rivers known by the names of the Chanchilles, of the Merced, and of
the San Joaquin."
Did all this vast region cease to be the public domain of the
United States for the sake of the ten leagues which constituted the
actual grant? Would not such a conclusion have been unreasonable,
prejudicial to the public interest, and entirely unnecessary for
the protection of the grantee? It may be that the land office might
properly suspend ordinary operations in the disposal of lands
within the territory indicated, and in that sense they might not
be
Page 127 U. S. 456
considered as public lands; but why should they not be regarded
as public lands disposable by Congress itself, care being taken to
preserve a sufficient quantity to satisfy the grant?
As we have already seen, there can be no doubt that a grant made
by Congress within the limits of a territory subject to a Mexican
float would take precedence of the float if sufficient land
remained to satisfy it. The only question is whether the surplus
land so at the disposal of Congress may be regarded as public land
within the meaning of the railroad aid grants. We are disposed to
think that it may be, and that as to grants of this character --
"floating grants," as they may be called -- the railroad aid grants
are not deprived of effect provided a sufficient quantity lying
together be left to satisfy the grant. In this case, no difficulty
could occur in carrying out this view. The territory described has
sufficient extent west of range 7 to satisfy the grant of eleven
leagues, and there seems to be no valid reason why it should not be
satisfied from this part. Of course, the satisfaction of the grant
is a fiction, for it never had any validity. But the part referred
to would be sufficient to satisfy it if it had been a valid grant.
And as the government had the right of location, and has made a
grant of its title to the railroad company, the company may
exercise the same right, subject to the like conditions. The
company has made its election to take its lands in range 7 and the
ranges that lie easterly thereof, and this option leaves the tract
west of range 7 (subject to its right of way) open to disposal in
the ordinary manner of other public lands.
There is really nothing in means of ascertaining how much the
taxpayers conflict with the views here expressed, because the court
did not have before it the case of a floating grant. In a number of
cases decided since the decision in
Newhall v. Sanger,
that case has been referred to with approbation, and in some of
them expressions have been used as if the question of floating
grants to be located in larger territories had been decided
therein. But we have seen that this is not correct, and we are not
aware of any case in which this class
Page 127 U. S. 457
of grants has been actually involved, and has formed the subject
of decision.
The decree of the circuit court is affirmed in this and the
other cases argued with it. In consequence of the death of Kate D.
McLaughlin, the decree will be entered as of the first day of the
term, nunc pro tunc.