"the authority of this Court, on appeal from a territorial
court, is limited to determining whether the court's findings of
fact support its judgment or decree, and whether there is any error
in rulings, duly excepted to, on the admission or rejection of
evidence, and does not extend to a consideration of the weight of
evidence or its sufficiency to support the conclusions of the
court."
A bill in equity on the part of the United States to set aside a
patent of public lands issued by mistake or obtained by fraud will
lie either when there are parties to whom the government is under
obligation in respect to the relief invoked or when that government
has a direct pecuniary interest in such relief each of which facts
appears to exist in this case, and one of which is not denied in
the letter of Attorney General Brewster, which is set forth in the
opinion of the Court.
When the government has a direct pecuniary interest in the
subject matter of the litigation the defenses of stale claim and
laches cannot be set up as a bar.
United States v. Dalles
Military Road Co., 140 U. S. 599,
affirmed to this point.
T. was a special agent and examiner of surveys for the Land
Department. After this suit had been commenced, he was directed by
the Land Department to proceed to the disputed territory and make
an examination as to the survey. He did so, and besides making
surveys and taking photographic views, he also obtained thirteen
affidavits of witnesses, selected by himself, as to boundaries,
etc. When called as a witness, he produced these affidavits as part
of his testimony and gave his conclusions as to the proper
boundaries of the grant, based partly at least upon the information
obtained from them. After his deposition containing these matters
had been filed in the case, and before the hearing in the district
court, two motions were made by the defendant -- one to strike out
the entire deposition and the other to suppress parts of it. Both
were overruled and no exception taken. The district court found for
the defendant, and entered a decree dismissing the bill. An appeal
having been taken to the supreme court of the territory, the entire
record was transferred to that court. There, no new motion to
strike out this deposition, or any part of it, was presented, nor
were the two motions made in the district court renewed in the
supreme court,
Page 146 U. S. 121
or action asked of that court thereon. The Supreme Court
reversed the decision of the district court and set aside the
patent. A motion for a rehearing was made, which was denied.
Held:
(1) That no motion to exclude the deposition or any part of it
having been made in the Supreme Court before decision, and it not
appearing in the record that the Supreme Court in giving its
decision passed upon the question of its admissibility, there was
nothing in that decision to review in that regard.
(2) That the action of the court on the motion for a rehearing
presented no question for review by this Court.
(3) That this Court could not review the action of the district
court. On the facts it appearing that a fraud was committed in
making the survey for the patent and that the defendant was not a
bona fide purchaser, it is immaterial that the surveyor
was not a party to the fraud.
On February 12, 1844, Jose Serafin Ramirez, a citizen of the
Republic of Mexico, and a resident of Santa Fe, in the Department
of New Mexico, petitioned the governor of that department for a
grant of a tract of land known as the "Canon del Agua," together
with the confirmation of the title to a mine claimed as an
inheritance from his grandfather. The material part of the petition
is as follows:
"I apply to your excellency in the name of the donation laws of
the 4th of January, 1813, and 18th of August, 1824, and in the name
of the Mexican nation, asking for a tract of vacant land known as
the 'Canon del Agua,' near the placer of San Francisco, called
'Placer del Tuerto,' and distant from that town about one league,
more or less."
"The land I ask for is vacant, and without owner, and I solicit
it because I have no possession or property by which I can support
my family. The boundaries solicited are: on the north, the road
leading from the placer to the Palo Amarillo; on the south, the
northern boundary of the grant of San Pedro; on the east, the
spring of the Canon del Agua; on the west, the summit of the
mountain of the mine known as 'My Own,' as will appear by the
accompanying document No. 1, for which I ask your ratification and
that of the departmental assembly, in the manner that I received
it, as an inheritance from my grandfather, Don Francisco Dias de
Moradillos, and I ask that this title be ratified according to the
mining ordinances dated
Page 146 U. S. 122
in the year 1813, title 5, article 1; in view of all of which I
pray and request your excellency to grant me possession of the
mine, to work it, and the land which it embraces, which is about
one league, for cultivation and pasturing my animals, and for
grinding ore and smelting metal."
"Jose Serafin Ramirez"
"Santa Fe, February 12, 1844"
To which petition the departmental assembly and the governor
thus responded:
"
Departmental Assembly of New Mexico"
"In session of today the departmental assembly decrees that Don
Serafin Ramirez, auditor of the departmental treasury, and the
other heirs of Don Francisco Dias de Moradillos, deceased, have a
right, as grandchildren, to the mine referred to in the petition,
and title of possession and property, as expressed in the mining
laws, and further decrees that his excellency, the governor of the
department, in conformity with the colonization laws, shall grant
the tract of land prayed for."
"Martinez,
President"
"Thomas Oztiz,
Secretary"
"Santa Fe,
February 13, 1844"
"And in answer to your petition, I grant you the tract asked
for, and revalidation of the title to the mine, which are enclosed
herewith."
"God and liberty Mariano Martinez"
"To Don Serafin Ramirez, auditor of the departmental Treasury,
Santa Fe"
The same year, juridical possession of the tract was given, the
description in the certificate thereof being:
"On the north, the road of the Palo Amarillo; on the south, the
boundary of the Rancho San Pedro; on the east, the spring of the
Canon del Agua; on the west, the highest summit of the little
mountain of El Tuerto, adjoining the boundary of the mine known
Page 146 U. S. 123
as 'Inherited Property,' from this date, according to the
colonization laws of the republic."
By the Treaty of Guadalupe Hidalgo, in 1848, 9 Stat. 922, the
Territory of New Mexico was transferred to the United States. In
1859, Ramirez filed with the surveyor general of New Mexico his
petition, asking official recognition by this government of his
grant. The description in this petition was:
"The quantity of land claimed is five thousand varas square,
making one Castilian league, and bounded on the north by the placer
road that goes down to the yellow timber; on the south, the
northern boundary of the San Pedro grant; on the east, the spring
of the Canon del Agua; on the west, the summit of the mountain of
the mine known as the property of your petitioner, as appears by
the original title deeds accompanying the notice, numbered 1, 2, 3,
4, 5."
A hearing was had on this application on the 10th day of
January, 1860. The surveyor general reported in favor of the grant,
and on June 12, 1866, Congress passed the following act of
confirmation:
"
An act to confirm the title of Jose Serafin
Ramirez"
"
to certain lands in New Mexico"
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that the
grant to Jose Serafin Ramirez of the Canon del Agua, as approved by
the Surveyor General of New Mexico January twenty, eighteen hundred
and sixty, and designated as number seventy in the transcript of
private land claims in New Mexico, transmitted to Congress by the
Secretary of the Interior January eleven, eighteen hundred and
sixty-one, is hereby confirmed: provided, however, that this
confirmation shall only be construed as a relinquishment on the
part of the United States. and shall not affect the adverse rights
of any person whatever."
"Approved June 12, 1866. 14 Stat. 588"
On August 9, 1866, a survey was made by a deputy surveyor, under
the direction of the Surveyor General of New
Page 146 U. S. 124
Mexico. This survey, after approval by such surveyor general,
was forwarded to the Land Department at Washington, and on July 1,
1875, a patent was issued granting the land with boundaries as
established by this survey. The following is a plat of the property
as surveyed and patented:
image:a
In 1866, Ramirez conveyed the property to Cooley and others,
from whom, in 1880, it passed to the present defendant. Thereafter,
and on September 15, 1881, this suit was commenced by the United
States in the District Court of the first Judicial District of the
Territory of New Mexico, to set
Page 146 U. S. 125
aside the patent and annul the title conveyed thereby, on the
ground of fraud in the survey. An answer was filed, proofs were
taken, and the case went to final hearing before the district
court. By that court, on February 16, 1885, a decree was entered in
favor of the defendant dismissing the bill. From such decree an
appeal was taken to the supreme court of the territory, which, on
January 28, 1888, reversed the decision of the district court and
entered a decree in favor of the government setting aside and
annulling the patent and the survey upon which it was based, from
which decree the defendant has appealed to this Court.
Page 146 U. S. 130
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The supreme court of the territory, at the request of the
defendant, made and certified a statement of the facts in the case.
This is in accordance with the Act of April 7, 1874, 18 Stat. 27,
which, in section 2, a section providing for the exercise of the
appellate jurisdiction of this Court over the judgments and decrees
of territorial courts, reads:
"That on appeal, instead of the evidence at large, a statement
of the facts of the case in the nature of a special verdict, and
also the rulings of the court on the admission or rejection of
evidence, when excepted to, shall be made and certified by the
court below, and transmitted to the supreme court, together with
the transcript of the proceedings and judgment or decree."
Construing this statute, it was held in the case of
Idaho
& Oregon Land Company v. Bradbury, 132 U.
S. 509,
132 U. S. 514,
that
"the authority of this Court, on appeal from a territorial
court, is limited to determining whether the court's findings of
fact support its judgment or decree, and whether there is any error
in rulings, duly excepted to, on the admission
Page 146 U. S. 131
or rejection of evidence, and does not extend to a consideration
of the weight of evidence or its sufficiency to support the
conclusions of the court.
Stringfellow v. Cain,
99 U. S.
610;
Cannon v. Pratt, 99 U. S.
619;
Neslin v. Wells, 104 U. S.
428;
Hecht v. Boughton, 105 U. S.
235,
105 U. S. 236;
Gray v.
Howe, 108 U. S. 12;
Eilers v.
Boatman, 111 U. S. 356;
Zeckendorf v.
Johnson, 123 U. S. 617."
Hence, notwithstanding the large volume of testimony taken and
used in the court below has been incorporated into the record sent
to us, we are not at liberty to review that testimony for the
purpose of ascertaining whether the findings in the statement of
facts are or are not in accordance with the weight of the evidence.
This narrows materially the range of our inquiry.
The first proposition of the appellant is that the United States
has no interest in the controversy, and did not in good faith
institute and prosecute this suit. This claim rests upon the fact
that in the record is found the following letter:
"Department of Justice"
"Washington, October 17, 1883"
"F. W. Clancy, Esq., 1426 Corcoran St., Washington, D.C."
"Sir: To your inquiry whether the United States will pay the
costs incurred in the case against the San Pedro and Canon del Agua
Company, I answer that the United States has no beneficial interest
in the proceeding. It was instituted at the instance of parties who
claimed a right to the possession of the lands. Upon their request,
special counsel were appointed by this department to commence and
carry on the suit, but they were not to be compensated by the
United States, and it was the understanding of this department, as
in other similar cases, that whatever costs and expenses were
incurred in the preparation and conduct of the case should be paid
by the parties on whose petition the proceedings were instituted. I
must decline therefore for the government, to pay said costs and
expenses, or any part thereof. "
"Very respectfully, Benjamin Harris Brewster"
"
Attorney General"
Page 146 U. S. 132
Apparently the attention of the court below was not called to
this letter, nor any action taken in reference to it. It simply
appears as a paper filed by someone in the clerk's office, and by
the clerk, of his own motion, incorporated into the record. Mr.
Clancy, to whom the letter was addressed, was up to January, 1883,
the clerk of the court in which the suit was pending; subsequently,
although, so far as the record discloses, not till after October,
1883, he became one of the counsel for defendant.
There are several reasons why the claim of the defendant in this
respect cannot be sustained. In the first place, we have no
assurance that the letter is genuine. Such a paper does not prove
itself. It was not offered in evidence. The court took no notice of
it. It was addressed not to an officer of the court or a counsel in
the case, but to a stranger. The clerk, by merely filing such a
document, does not adjudicate that it is in fact that which on its
face it purports to be.
Again, even if it be regarded as the letter of the Attorney
General, it does not contain any such statement as precludes the
government from maintaining this action. There is nowhere an
intimation that Attorney General MacVeagh, the predecessor of the
writer of the letter, when commencing the suit, was not acting in
the utmost good faith, and in the belief that the government had a
pecuniary interest in the lands, or was under an obligation to
third parties, which it could protect only by setting aside this
patent; and while the letter declares that the United States has no
beneficial interest in the controversy, it does not deny that the
United States is under obligation to other parties respecting the
relief invoked, and that, it is now settled, is sufficient for
maintaining an action to set aside a patent.
United States v.
San Jacinto Tin Co., 125 U. S. 273;
United States v. Beebe, 127 U. S. 338,
127 U. S. 342,
in which latter case it was said:
"And it may now be accepted as settled that the United States
can properly proceed by bill in equity to have a judicial decree of
nullity and an order of cancellation of a patent issued in mistake
or obtained by fraud where the government has a direct interest, or
is under an obligation respecting the relief invoked."
See
Page 146 U. S. 133
also United States v. Missouri, Kansas & Texas
Railway, 141 U. S. 358,
141 U. S.
380.
But chiefly the statement made by the supreme court shows that
in fact there were parties to whom the United States was under
obligation in respect to the relief invoked, and also that the
government had a direct pecuniary interest in the relief sought.
The application for a grant described a tract of vacant land near
the placer of San Francisco called "Placer del Tuerto," and distant
from that town about one league, more or less. This town, with a
varying population of a few hundreds, perhaps thousands, of people,
was in existence before the application of Ramirez for the grant at
the date of the annexation of New Mexico to this country, and at
the time of the survey and patent. The inhabitants held their
possessions by the indefinite and unrecorded titles of dwellers in
Mexican villages. By the treaty of cession as well as the general
law in respect to the acquisition of foreign territory, the United
States was bound to respect all existing rights, and, among them,
the rights and titles of these inhabitants. Yet the survey and
patent included the town. It is true that the act of confirmation
as well as the patent recites that it is only a relinquishment on
the part of the United States, and is not to affect the adverse
rights of any person, and it is very likely that the equitable
titles of the inhabitants could be established notwithstanding the
patent; but the government owed it to them not to burden their
equitable rights by an apparently adverse legal title, and, having
been induced to do so through the fraudulent acts of the patentee
and his associates, it is discharging a moral obligation, at least,
when it takes steps to set aside such patent and to relieve them
from the apparent cloud on their title.
Further, the statement of facts finds that
"Outside of the boundary line of the said Canon del Agua grant
as granted to said Ramirez by the government of Mexico, there was
at the time when the supplemental bill in this cause was filed a
mining property of great value known as the 'Big Copper Mine,'
yielding valuable quantities of both copper and gold. There were
also numerous other mines of the precious metals east of the Canon
del Agua spring.
Page 146 U. S. 134
These mines were and are upon a part of the public domain of the
United States, but within the lines of the said grant as
fraudulently extended by Ramirez and his confederates aforesaid.
The defendant, as shown by its answer to the supplemental bill at
the time of the filing of the same, actually occupied and possessed
said Big Copper mine, and was extracting ore therefrom, claiming
the legal right to do so as against the United States, and was also
in possession of the land upon which said other mines were
situated, and also claiming the right to the same. The defendant
was not so in possession under the mineral laws of the United
States as a locator, or claiming under or through any locator by
virtue of such mining laws, but was in possession under and by
means of the said fraudulent survey, and was claiming under the
agricultural patent to Ramirez, the action of the surveyor general
thereon, the confirmation by Congress, the survey and patent
thereunder, the lawful right to hold said mines and extract
therefrom the precious metals for its own use, to the exclusion of
the United States therefrom and in defiance of the mineral laws of
the United States, predicating such claim of right upon mesne
conveyances from parties holding under and by virtue of said
patent."
"The possession of the said mine by the defendant as aforesaid,
and the manner in which the same is being worked and carried on, is
such as to prevent other mining prospectors from locating thereon
or making any claim or acquiring any title thereto by location and
development under the mining laws of the United States, and, if
permitted to continue, would enable the defendant, under claim of
legal title which does not exist, to continuously extract therefrom
large quantities of valuable precious metals, and thus greatly to
lessen the value of said property and to hinder and delay the
development thereof, and to prevent location thereon and
development under the mining laws of the United States. The claim
of said defendant constitutes a cloud upon a title to the said
mines and upon the right of the United States to open the same to
be prospected, located, and developed as mineral land, and deprives
it of the revenue which would
Page 146 U. S. 135
otherwise accrue to it, from such settlement and
development."
The United States has therefore a pecuniary interest in
maintaining this action, that it may recover possession of these
mines and secure to itself the revenue naturally derivable
therefrom.
This last matter is also a sufficient answer to the second point
made by the appellant, and that is that the prosecution of this
suit is barred by laches, for it is well settled that when the
government has a direct pecuniary interest in the subject matter of
the litigation, the defenses of stale claim and laches cannot be
set up as a bar.
United States v. Dalles Military Road
Company, 140 U. S. 599, and
cases cited in the opinion.
The third point of appellant is that much of the testimony of
John B. Treadwell, and the exhibits attached thereto, were
incompetent, and should have been excluded, and, because they were
not the decree of the supreme court of the territory, ought to be
reversed. Mr. Treadwell was a special agent and examiner of surveys
for the Land Department. After this suit had been commenced, he was
directed by the Land Department to proceed to the disputed
territory and make an examination as to the survey. He did so, and,
besides making surveyes and taking photographic views, he also
obtained thirteen affidavits of witnesses, selected by himself, as
to boundaries, etc. When called as a witness, he produced these
affidavits as part of his testimony and gave his conclusions as to
the proper boundaries of the grant, based partly, at least, upon
the information obtained from them. After his deposition containing
these matters had been filed in the case, and before the hearing in
the district court, two motions were made by the defendant, one to
strike out the entire deposition and the other to suppress parts of
it. Both were overruled, and no exception taken. The district
court, as heretofore stated, found for the defendant and entered a
decree dismissing the bill. An appeal having been taken to the
supreme court of the territory, the entire record was transferred
to that court. There, no new motion to strike out this deposition,
or any part of it, was presented, nor were the
Page 146 U. S. 136
two motions made in the district court renewed in the supreme
court, or action asked of that court thereon. Obviously the
defendant, relying upon its success in the district court, with
this testimony in the case and before the court, did not deem the
matter of sufficient importance either to renew the motions made in
the district court or to file additional ones, and so let the case
pass to the consideration of the supreme court with all the
testimony, including this deposition, unchallenged. But our inquiry
is limited to the rulings of the supreme court of the territory. It
is its judgment which we are reviewing. By the appeal, the case was
transferred as a whole from the district court to the supreme
court. The rulings of the former court did not bind or become those
of the latter, either as to the admission or rejection of testimony
or the decree to be entered. All the testimony taken and filed in
the one court was spread before the other, and was apparently
proper for its consideration. If the defendant had wished to narrow
the examination of that court to any portion of the testimony, it
should by appropriate motion to it have challenged the supposed
objectionable parts. Counsel, appreciating this necessity of the
case, has endeavored to show that the supreme court did in fact
rule on the admissibility of this testimony, but we think his
contention is not borne out by the record. Certainly no new motion
was filed in the supreme court, or any entry made of a renewal of
the motions in the district court, or of a decision thereon, and if
error is to be predicated upon any ruling of the lower court, it
would seem that the ruling should affirmatively and distinctly
appear. And in this connection, notice may well be taken of Rule 13
of this Court:
"In all cases of equity . . . heard in this Court, no objection
shall hereafter be allowed to be taken to the admissibility of any
deposition, deed, grant, or other exhibit found in the record as
evidence unless objection was taken thereto in the court below, and
entered of record, but the same shall otherwise be deemed to have
been admitted by consent."
Upon what grounds does counsel contend that the supreme court
did rule upon this matter? In the order of the court refusing the
petition for rehearing is the following:
Page 146 U. S. 137
"The court . . . does now overrule such petition, and refuses to
grant the same, for reasons set forth in an opinion by Chief
Justice Long."
This was the second reason assigned for rehearing:
"2. The court bases its conclusion as to the location of said
Sierra del Tuerto largely upon
ex parte affidavits taken
by one John B. Treadwell, without notice to anyone or opportunity
for cross-examination, improperly injected into the record of the
court below after all the proofs on both sides were closed, which
defendant moved to strike out and suppress before the final
hearing, as is shown by the record."
And in the opinion is this statement.
"The defendant has filed a petition for rehearing, assigning
therein twelve reasons why the same should be granted. The . . .
second . . . points made are but a repetition of those urged both
in oral argument and in the printed briefs, and already fully
considered and determined. They present no new consideration, and
are fully met by the opinion."
But this does not show that any motion was made in the supreme
court, or any ruling had thereon. The second reason assigned is
that the court based its conclusion upon this improper testimony.
It is true, reference is made to a motion to suppress, but it is
only by way of description of the improper matter, and the motion
referred to is one "shown by the record," and the only such motion
is the one made in the district court. The record shows none in the
supreme court.
Again it is insisted that the denial of the rehearing (one of
the grounds therefor being that already stated) is, in itself, a
sufficient objection and exception to the testimony. But when the
petition for rehearing was filed, the case had been decided. A
petition for rehearing is no more significant than a motion for a
new trial, which, as well settled, presents no question for review
in this Court. Further, it would be strange if a case could be
submitted on certain testimony and decided, and then the defeated
party could, by motion for a new trial or petition for rehearing,
compel the striking out of a part of that testimony and thus a
retrial of the case. By not challenging
Page 146 U. S. 138
the objectionable testimony until after the decision, he waives
his right to challenge it at all.
Again, after the decision, the defendant made application for a
statement of the facts of the case and also the rulings of the
court on the admission and rejection of the evidence, to be
transferred to this Court, which motion was consented to by the
United States and a statement of facts prepared. Thereafter the
defendant moved to have included in such statement the testimony of
Treadwell, the rulings of the district court on the motions, and
also the rulings of the supreme court upon said testimony, which
motion was denied, and, on complaint of the defendant that the
statement did not contain any rulings of that court on the
admission or rejection of evidence, and especially with respect to
the testimony of John B. Treadwell, and the exhibits filed
therewith, the supreme court said:
"The motion for an additional finding touching the admission of
the deposition, map, and exhibits of John B. Treadwell has been
considered. The appeal was taken by the United States. There being
no cross-appeal by the appellee, we decline to review the action of
the court below, as that is not before us on this appeal, and
overrule said motion, and decline any action upon it for reasons
stated."
Whatever may be thought of the reason given by the supreme
court, the fact appears from this language that present action only
was invoked, which was action after the decision, and, further that
such action was only in reference to a review of the ruling of the
district court. Indeed not only is the silence of the record
conclusive against any motion in the supreme court to exclude the
testimony or any action by that court in the way of exclusion, but
also the fair inference from all the matters presented by counsel
is that, after the decision, it was sought to get from the supreme
court only some review of the ruling of the district court on the
motion to exclude the testimony. We cannot review the action of the
district court, and no action was taken by the supreme court prior
to the decision. The appellant can therefore take nothing by this
contention.
Again it is insisted that upon the facts of the case, the
Page 146 U. S. 139
appellant is entitled to a reversal. But clearly this is
untenable. The statement of facts is plain to the effect that the
survey was inaccurate and obtained by fraud. The force of this is
not obviated by the fact that Griffin, the surveyor, was not found
to have been a party to the fraud. The wrong is the wrong of the
patentee, and the fact, if it be a fact, that he did not secure the
wrongful assistance of all the officers of the government connected
with the survey does not make his wrong any the less. It may be, as
Chief Justice Long intimates, that Griffin, the surveyor, was
innocent; that he was misled by the misrepresentations and
fraudulent acts of others; but, if it be, as found by this
statement of facts, that the survey was erroneous, that it and the
patent were obtained by fraud, and that the patentee was a party to
such fraud, that is enough to sustain a decree setting aside the
survey and the patent, and leaving the defendant to whatever rights
may exist under the original confirmation.
Finally it is insisted that the defendant was a
bona
fide purchaser, but the findings of fact do not warrant this
conclusion. The president of the company and a large stockholder,
together with others interested, visited the property before the
purchase. They were warned of the adverse claims. They examined the
land and could easily perceive the situation of some of the points
named in the description, and also the presence, within the limits
of the patent, of this Town of San Francisco. Indeed, it is
distinctly stated in the findings that
"the said defendant, through its said company, had notice in
fact by the means aforesaid of the adverse claim to said grant, and
in addition thereto information sufficient to put it on inquiry as
to the fraud alleged in the bill of complaint."
Undoubtedly, upon the facts as found and stated by the court,
the defendant was not entitled to hold as a
bona fide
purchaser.
These are all the matters complained of, and in them finding no
error, the decree of the supreme court of the territory is
Affirmed.
