The Act of Congress of June 21, 1860, c. 167, confirming the
claim,of Preston Beck, Jr., to a grant of land from Mexico made
before the Treaty of Guadalupe Hidalgo, by necessary implication
contemplated that the grant should be thereafter surveyed, and that
such survey was essential for the purpose of definitely segregating
the land confirmed from the public domain.
Such survey could only be made by the proper officer of the
political department of the government, but notice thereof was not
necessary.
Such survey having been made by such officer, and on the trial
of this case evidence having been introduced tending to show that
land of the defendant in controversy lay outside of the lines of
that survey, but within the limits of the designated boundaries of
the grant under which the plaintiff claimed, the defendant was
entitled to have the jury instructed that if they found from the
evidence that the grant had been properly surveyed by the United
States, and that that survey had been approved, as the correct
location of the grant, and that the land in dispute in the
defendant's occupation and possession was outside the limits of the
survey, they must find for the defendant, although they might
believe that the land so in dispute was within the boundaries of
the grant as set forth in the original title papers thereof.
The right of the defendant in error to avail himself of the
legal privilege of appeal from the survey to the Secretary of the
Interior is not concluded by any expression of opinion by the Court
in this case.
In 1854, Congress passed "An act to establish the offices of
surveyor general of New Mexico, Kansas, and Nebraska, to grant
donations to actual settlers therein, and for other purposes." Act
of July 22, 1854, c. 103, 10 Stat. 308. Sections 8 and 9 of this
law read as follows:
"SEC. 8.
And be it further enacted that it shall be the
duty of the surveyor general, under such instructions as may be
given by the Secretary of the Interior, to ascertain the origin,
nature, character, and extent of all claims to lands under the
laws, usages, and customs of Spain and Mexico,
Page 158 U. S. 241
and for this purpose may issue notices, summons witnesses,
administer oaths, and do and perform all other necessary acts in
the premises. He shall make a full report on all such claims as
originated before the cession of the territory to the United States
by the treaty of Guadalupe Hidalgo, of eighteen hundred and
forty-eight, denoting the various grades of title, with his
decision as to the validity or invalidity of each of the same under
the laws, usages, and customs of the country before its cession to
the United States, and shall also make a report in regard to all
pueblos existing in the territory, showing the extent and locality
of each, stating the number of inhabitants in the said pueblos
respectively, and the nature of their titles to the land. Such
report to be made according to the form which may be prescribed by
the Secretary of the Interior, which report shall be laid before
Congress for such action thereon as may be deemed just and proper,
with a view to confirm
bona fide grants and give full
effect to the treaty of eighteen hundred and forty-eight between
the United States and Mexico, and, until the final action of
Congress on such claims, all lands covered thereby shall be
reserved from sale or other disposal by the government, and shall
not be subject to the donations granted by the previous provisions
of this act."
"SEC. 9.
And be it further enacted that full power and
authority are hereby given the Secretary of the Interior to issue
all needful rules and regulations for fully carrying into effect
the several provisions of this act."
Under these provisions, Preston Beck, Jr., a citizen of the
United States and a resident of the Territory of New Mexico,
presented his petition to the surveyor general on May 10, 1855, to
be recognized as the legal owner in fee of a certain tract of land
lying in the County of San Miguel in that territory, "known as the
Hacienda de San Juan Bautista del Ojito del Rio de las Gallinas,"
and bounded
"on the north by the landmarks of the sitio of Don Antonio Oritz
and the mesa of the arguage de la Yegua, on the south by the River
Pecos, on the east by the mesa of Pajarito, on the west by the
point of the mesa of the Chupaines. . . . And the
Page 158 U. S. 242
said Preston Beck, the 'present claimant,' claims a perfect
title to said land by virtue of a grant made on the twenty-third
day of December, in the year one thousand eight hundred and
twenty-three, by Bartolme Baca, governor and superior political
chief of the Province of New Mexico, by and with the advice and
approbation of the provincial deputation of the said Province of
New Mexico, to Juan Estevan Pino, a citizen of New Mexico, which
said grant was made as aforesaid by authority of the laws, usages,
and customs of the Republic of Mexico in force at the time, and of
the laws and regulations of Spain which were declared and
recognized to be in force and effect at that time in the Republic
of Mexico. . . ."
"The said Preston Beck claims and further states that he cannot
show the quantity of land claimed by him, except as set forth in
said grant, as within the above-described well known metes and
boundaries, nor can he furnish a plat of survey, as no survey has
ever been executed."
"Claimant further states that one Alexander Hatch and about one
hundred other persons have settled upon said grant without a title
from any person or from any government, and with a full knowledge
of the existence of the claim now presented."
"Claimant further states that by virtue of said grant, Juan
Estevan Pino was lawfully put in possession of said tract of land
by the competent authorities, and settled upon said claim with a
large amount of property, and there held possession of the same for
the space of twenty-one years, and until expelled by the
hostilities of the savage Indian tribes; that upon the death of
Juan Estevan Pino, the said tract of land was inherited by his two
sons, Justo Pino and Manuel D. Pino, who were his only heirs, and
the present claimant claims his title by virtue of deeds from Justo
Pino and Gertrudes Roscom, his wife, and from Manuel D. Pino and
Josefa Oritz, his wife, all of original grants and deeds of
transfer and documentary titles, marked A, B, C, D, E, are herewith
filed and made part of this claim."
"Claimant files this, his said claim, before you under the
8th
Page 158 U. S. 243
section of the Act of Congress approved 22 July, 1854, entitled
'An act to establish the offices of surveyor general of New Mexico,
Kansas, and Nebraska, to grant donations to actual settlers
therein, and for other purposes,' and respectfully asks
confirmation by you of his said claim."
The controversy initiated before the surveyor general by the
filing of this petition was decided by him in 1856. His opinion
recites the claim, the grant made, the fact that the grantee was
put in possession by the alcalde, the acquisition by Preston Beck
Jr., from the grantee or heirs of all their rights, states that a
hearing was had between Beck as owner of the grant and a large
number of settlers, and continues:
"This case was argued very elaborately by the counsel on both
sides, and many points concerning boundaries of the grant were
introduced in the testimony and the arguments, which this office
deems unnecessary at present to notice, as they have no direct
reference to the validity of the grant."
"This case has been considered by this office with much
attention, and as it is understood that the validity of nearly all
the private land claims in this territory depends upon the same
principles, all the authorities that could be procured having any
bearing on the case have been carefully examined and maturely
deliberated. The documents presented in this case are original, and
the signatures of the granting officers and conveyors are proven by
testimony to be genuine, and the chain of title from the original
grantee to the present claimant is complete. . . ."
"The boundaries set forth in the granting decree and natural
points, well known to all the community, and in the absence of any
survey, which was not required in the grant, are amply sufficient
to designate such portions of land as was intended to be severed
from the public domain. The evidence presented by the claimant
shows that the grantee did have possession of the land granted to
him; that he occupied it with his stock, and cultivated certain
portions of it, and he continued to do so until he was driven off
by the hostile Indians. Not having voluntarily abandoned the land,
he did therefore voluntarily forfeit his right to the grant.
Page 158 U. S. 244
[It is evident from the context that the word 'not' has been
omitted before the word 'therefore' in the last sentence.]"
"The intention of the provincial deputation and the
recommendation of the governor, and no conditions being attached to
it, makes the grant a positive and absolute one, and vests in the
grantee a title in fee to all the land embraced within the
boundaries set forth in the granting decree."
"The objections made by counsel against the validity of the
grant are therefore overruled."
"Believing this to be one of the cases coming under the
provisions of the Treaty of Guadalupe Hidalgo of 1848, and having
strong claims to validity under the decisions of the Supreme Court
of the United States in similar cases, the grant made to Juan
Estevan Pino to a certain tract of land in the County of San
Miguel, and known as the 'Hacienda de San Juan Bautista del Ojito
del Rio de las Gallinas,' and of which Preston Beck, Jr., is the
present claimant, is hereby approved, and the Congress of the
United States is respectfully recommended to cause a patent to be
issued to the said Preston Beck, Jr., by the proper department, and
cause the same to be surveyed."
On June 21, 1860, Congress passed an act, of which the first
section reads as follows:
"That the private land claims in the Territory of New Mexico, as
recommended for confirmation by the surveyor general of that
territory, and in his letter to the Commissioner of the General
Land Office of the twelfth of January, eighteen hundred and
fifty-eight, designated as numbers one, three, four, six, eight,
nine, ten, twelve, fourteen, fifteen, sixteen, seventeen, and
eighteen, and the claim of E. W. Eaton, not entered on the
corrected list of numbers, but standing on the original docket and
abstract returns of the surveyor general as number sixteen, be, and
they are hereby, confirmed:
provided that the claim number
nine, in the name of John Scolley and others, shall not be
confirmed for more than five square leagues, and that the claim
number seventeen, in the name of Cornelio Vigil and Ceran St.
Vrain, shall not be confirmed for more than eleven square leagues
to each of said claimants."
12 Stat. 71.
Page 158 U. S. 245
Preston Beck's claim was designated as "number one" in the
report of the surveyor general, and was therefore embraced in this
confirmatory act. After the passage of the above act, a survey of
the grant in question was made by the officers of the government
and approved by the Secretary of the Interior. A statement of
facts, signed by both parties, admits that this survey was made
"without notice to the owners of said grant, or either of them." It
is also admitted that Preston Beck, Jr., in whose name the grant
was confirmed, died in 1860, a short time before the passage of the
confirmatory act, leaving his estate, in which the above grant was
included, to his brother, cousin, nephews, and nieces, all of whom
were nonresidents of the Territory of New Mexico. It is conceded by
the same statement that at the time of the making and approval of
the survey, three of the beneficiaries under the will of Preston
Beck, Jr., were minor children, and three others were married
women, and that the plaintiff, George W. Stoneroad, was not one of
the legatees under said will, but subsequently acquired a third
undivided interest in the grant. And it is further admitted that
none of the owners of the land have acquiesced in the survey since
the same was made and approved.
In 1885, George W. Stoneroad, the person thus conceded to be the
owner of one-third of the original grant, brought an action of
ejectment against James P. Stoneroad, alleging that he was entitled
to the possession of the Preston Beck grant, and that the defendant
had illegally possessed himself of a portion thereof. The defendant
pleaded not guilty. At the trial of the case, the parties entered
into the stipulation, in which the facts, as above stated, were
admitted, and one clause of this stipulation, in addition, says in
reference to the act of Congress,
"said confirmation being absolute, and without any condition
whatever, and to the extent of the boundaries given in the original
muniments of the title, as the same are correctly copied in said
Exhibit A,"
the "Exhibit A" referred to being the original grant, describing
the property as above mentioned. Besides the admissions which were
thus made, oral evidence was introduced tending to show that the
defendant,
Page 158 U. S. 246
James P. Stoneroad, possessed two tracts of land outside of the
lines of the survey made by the government, but, as asserted,
within the limits of the designated boundaries of the grant. At the
trial, the defendant asked the court to give the following
instruction:
"The jury are instructed that if they find from the evidence in
this case that the grant in evidence in this case has been surveyed
by the proper authorities of the United States, and that such
survey has been approved by the proper authorities of the United
States as the correct location of said grant, and that the land in
dispute in this case and in the occupation and possession of said
defendant is outside the limits of survey, they must find for the
defendant, though they may also believe that the said land so in
dispute is within the boundaries of said grant, as such boundaries
are set forth in the original title papers of said grant, and the
recommendation of the surveyor general relative thereto is evidence
in this cause."
This instruction was refused, and a verdict was rendered in
favor of the plaintiff. The defendant, after an ineffectual attempt
to obtain a new trial, took the case by writ of error to the
supreme court of the territory. There, the judgment below was
affirmed, and the defendant then brought the case here by
error.
MR. JUSTICE WHITE, after stating the case, delivered the opinion
of the Court.
The first and fundamental question is did the act of Congress of
1860, which confirmed the claim of Preston Beck, Jr., as
recommended by the surveyor general, provide for or by necessary
intendment contemplate that a survey of the grant should be made in
order to separate the land embraced within it from the public
domain? And we are not relieved from
Page 158 U. S. 247
the consideration of this question by the admission made by the
parties to the suit that the confirmation was "absolute, and
without any condition whatever." This admission is in no way the
concession of a fact, but is a declaration by the suitors of their
opinion on a matter of law. Whether the act of Congress was
absolute or conditional; whether it required, even though it
absolutely confirmed the title, that a survey should be made to
determine the extent of the property -- depends upon the terms of
the law. The report of the surveyor general who passed upon the
claim states, among the reasons for his recommendation to
Congress:
"The boundaries set forth in the granting decree and natural
points, well known to all the community, and in the absence of any
survey, which was not required in the grant, are amply sufficient
to designate such portions of land as was intended to be severed
from the public domain."
In his recommendation to Congress, however, which is practically
the decretal part of his opinion, he says:
"The Congress of the United States is respectfully recommended
to cause a patent to be issued to the said Preston Beck, Jr., by
the proper department, and cause the same to be surveyed."
It was this recommendation which was acted upon by Congress.
We think the confirmatory act of 1860 by necessary implication
contemplated that the confirmed grant should be thereafter
surveyed, and that such survey was essential for the purpose of
definitely segregating the land, to which the right was confirmed,
from the public domain, and thus finally fixing the extent of the
rights of the owners of the grant. To hold otherwise would be to
conclude that Congress had confirmed the claim, and yet deprived
the claimant of all definite means of ascertaining the extent of
his possessions under the confirmed title. In view of the fact that
the surveyor general's report showed the importance of the grant,
and that it had never been surveyed, we think it must be considered
that Congress intended that it should be surveyed in order that its
boundary lines might be accurately fixed before the issue of a
patent. The grant was an unconfirmed Mexican grant, and therefore,
before it could take a definite and conclusive shape,
Page 158 U. S. 248
so far as the United States was concerned, it required action
and approval on the part of this government. As said by this Court,
in speaking of grants within this Territory of New Mexico, in the
case of
Astiazaran v. Santa Rita Mining Co., 148 U. S.
80:
"Undoubtedly private rights of property within the ceded
territory were not affected by the change of sovereignty and
jurisdiction, and were entitled to protection whether the party had
the full and absolute ownership of the land or merely an equitable
interest therein which required some further act of the government
to vest in him a perfect title. But the duty of providing the mode
of securing these rights, and of fulfilling the obligations imposed
upon the United States by the treaties belonged to the political
department of the government, and Congress might either itself
discharge that duty or delegate it to the judicial department.
De la
Croix v. Chamberlain, 12 Wheat. 599,
25 U. S.
601-602;
Chouteau v. Eckhart, 2 How.
344,
43 U. S. 374;
Tameling v.
United States Freehold Co., 93 U. S. 644,
93 U. S.
661;
Botiller v. Dominguez, 130 U. S.
238."
Now at the time of the passage of this confirmatory act, and for
a long time prior thereto, the general laws of the United States
confided to certain administrative officers the duty of surveying
not only the public lands, but also private land claims. Rev.Stat.
ยงยง 441-453. The practice of the United States in dealing with the
public domain and all governmental grants of land is to survey and
issue patent. For this purpose, in the proper administrative branch
of the government, accurate and efficient machinery, accompanied
with full remedial process for the correction of error, is
provided. In speaking of the general policy of the law as to the
surveying of the public domain, including private land grants, this
Court, through Mr. Justice Lamar, in
Knight v. United States
Land Association, 142 U. S. 161,
said:
"That section provides as follows: 'The Secretary of the
Interior is charged with the supervision of public business
relating to the following subjects: . . . Second. The public lands,
including mines.' Section 453 provides:"
"The Commissioner of the General Land Office shall perform,
under the
Page 158 U. S. 249
direction of the Secretary of the Interior, all
executive duties appertaining to the surveying and sale of the
public lands of the United States or in anywise respecting such
public lands, and also such as relate to private claims of land,
and the issuing of patents for all agents [grants] of land under
the authority of the government."
"Section 2478 provides:"
"The Commissioner of the General Land Office,
under the
direction of the Secretary of the Interior, is authorized to
enforce and carry into execution by appropriate regulations every
part of the provisions of this title [The Public Lands] not
otherwise specially provided for."
"The phrase, 'under the direction of the Secretary of the
Interior,' as used in these sections of the statutes, is not
meaningless, but was intended as an expression in general terms of
the power of the secretary to supervise and control the extensive
operations of the Land Department of which he is the head. It means
that in the important matters relating to the sale and disposition
of the public domain, the surveying of private land claims, and the
issuing of patents thereon, and the administration of the trusts
devolving upon the government by reason of the laws of Congress or
under treaty stipulations respecting the public domain, the
Secretary of the Interior is the supervising agent of the
government to do justice of all claimants, and preserve the rights
of the people of the United states. As was said by the Secretary of
the Interior on the application for the recall and cancellation of
the patent in this pueblo case (5 L.D. 494):"
"The statutes, in placing the whole business of the department
under the supervision of the Secretary, invest him with authority
to review, reverse, amend, annul, or affirm all proceedings in the
department having for their ultimate object to secure the
alienation of any portion of the public lands, or the adjustment of
private claims to lands, with a just regard to the rights of the
public and of private parties. Such supervision may be exercised by
direct orders or by review on appeals. The mode in which the
supervision shall be exercised in the absence of statutory
direction may be prescribed by such rules and regulations as the
secretary may adopt. "
Page 158 U. S. 250
It is not to be presumed that Congress intended, by confirming a
grant which had never been surveyed and had therefore never been
distinctly separated from the public domain, to exempt it from the
survey essential to its accurate segregation and delimitation,
especially when this survey was fully provided for by the general
law, in accordance with the uniform public policy of the government
in dealing with questions of this character. The general rule being
to exact a survey, the grant here under consideration could only be
exempted from this requirement by an express statement in the act
of Congress indicating an intention to depart from the rule in the
particular instance. No such intention is anywhere expressed in the
confirmatory act. Indeed, the idea that the act, while confirming
the title, did not contemplate a survey, for the purpose of marking
its limits, amounts to the contention that the public domain itself
should remain in part forever unsurveyed and undetermined, since a
separation of the private claim from the public domain was
essential to the ascertainment of what remained of the latter.
Construing, then, the confirmatory act, in connection with the
general law of the United States, the recommendations of the
surveyor general upon which the confirmation was made, and the
essential requirements of the case as presented to Congress, we
conclude that a survey of the grant was contemplated by the
confirmatory act, and we will determine the rights of the parties
in accordance with this conclusion.
It is unquestioned that shortly after the confirmation of the
grant, a survey was made, and that the land in possession of the
defendant below is outside of its lines. The plaintiff's case
therefore necessarily rests upon a disregard of the official
survey. In order to sustain his position, two legal propositions
are advanced: first, that the holders of the grant are not bound by
the survey, for the reason that it was made without notice to them
and because at the time of the survey some of them were minors and
some were under coverture, and second that the survey did not
conform to the boundaries of the grant, and therefore should be
judicially corrected. Both these propositions are untenable. The
first attacks the survey
Page 158 U. S. 251
as a whole upon the theory that notice was an essential
prerequisite and that coverture and minority were obstacles to the
right of the government to survey the claim as confirmed, for the
purpose of ascertaining the extent of the grant and in order to
separate it from the public domain. It is unnecessary to point out
the fallacy which underlies this proposition, because, even if its
correctness be conceded, the concession would be fatal to the
plaintiff's case. As we have seen, a survey was necessary. Now if
the survey was illegal and is to be treated as not existing, then
we are without the guidance provided by law for the purpose of
ascertaining whether the land claimed from the defendant was within
or without the area of the grant. In other words, if it be conceded
that there is no survey, the plaintiff is without right to relief,
since a survey was essential to carry out the confirmatory act. The
second proposition is equally unsound. It presupposes the existence
in the courts of the United States of a power to survey the public
domain, and thus discharge a function confided by law to an
administrative branch of the government. In
West v.
Cochran, 17 How. 403, this Court, speaking through
Mr. Justice Catron, said:
"It has often been held by this Court that the judicial
tribunals, in the ordinary administration of justice, had no
jurisdiction or power to deal with these incipient claims either as
to fixing boundaries by survey or for any other purpose, but that
claimants were compelled to rely upon Congress, on which power was
conferred by the Constitution to dispose of and make all needful
rules and regulations respecting the territory and property of the
United States. Among these needful regulations was that of
providing that these unlocated claims should be surveyed by lawful
authority; a consideration that has occupied a prominent place in
the legislation of Congress from an early day."
Considering the same subject in
Knight v. U.S. Land
Association, supra, speaking through Mr. Justice Lamar, the
Court said:
"It is a well settled rule of law that the power to make and
correct surveys of the public lands belongs exclusively
Page 158 U. S. 252
to the political department of the government, and that the
action of that department, within the scope of its authority, is
unassailable in the courts except by a direct proceeding.
Cragin v. Powell, 128 U. S. 691,
128 U. S.
699, and cases cited. Under this rule, it must be held
that the action of the Land Department in determining that the Von
Leicht survey correctly delineated the boundaries of the pueblo
grant, as established by the confirmatory decree, is binding in
this Court if the department had jurisdiction and power to order
that survey."
These views are particularly applicable to the case in hand,
since the act providing for the office of the surveyor general for
New Mexico authorizes him to examine and report, under such rules
and regulations as the Secretary of the Interior may adopt, and
requires that his report shall be transmitted to Congress for its
action. Even if the general rule were otherwise, these provisions
necessarily preclude judicial cognizance of the subject matter, and
confine it to the supervision of the political and administrative
departments of the government. And the terms of the act become
especially cogent when considered in connection with antecedent
legislation under similar circumstances. They differ materially
from the language of the measures previously adopted by Congress
for confirming the outstanding titles in Louisiana, Florida, and
California. In those cases, the statutes, while creating
administrative officers for the purpose of ascertaining and passing
on the grants, expressly gave a right to the parties to invoke the
aid of the courts in order that the correctness of the actions of
the officers named might be judicially determined. It was under
such provisions that many of the cases referred to and relied on by
the defendant in error were decided. The absence of a provision in
the present statute for a judicial review of the surveyor general's
action indicates the intention of Congress to reserve to itself the
right to pass upon such claims.
Astiazaran v. Santa Rita Mining
Co., supra. Hence, the many authorities cited by the defendant
in error have no application. Thus,
United
States v. Arredondo, 6 Pet. 691;
Mitchel v.
United States, 9 Pet. 711, and
Fremont v.
United States, 17 How. 542, were the results of
Page 158 U. S. 253
an express provision giving parties an ultimate recourse to the
courts.
Langdeau v.
Hanes, 21 Wall. 521, involved no assertion of a
power in the courts to destroy a survey duly made. There, the
survey had been made, and was not assailed. The finding of the
court below in that case, which was here affirmed, was as
follows:
"1st. That the act of confirmation of 1807 was a present grant,
becoming so far operative and complete to convey the legal title
when the land was located and surveyed by the United States in
1820, as that an action of ejectment could be maintained on the
same."
In
Whitney v. Morrow, 112 U. S. 693,
there had been an unquestioned segregation of the property after
the confirmation by the commissioners under a special act of
Congress by long continued actual possession.
Nothing in the record indicates that the defendant in error has
availed himself of the legal privilege of appeal to the Secretary
of the Interior, and, of course, his right to do so is not
concluded by any expression of opinion which we have made. Our
conclusion is that the instruction requested by the defendant was
wrongfully refused by the lower court, and the judgment of the
Supreme Court of the Territory of New Mexico, which upheld the
action of the court below, was erroneous. It is therefore ordered
that the judgment be
Reversed.
