From its examination of the evidence in this case, this Court
concurs in the view of the Court of Private Land Claims that a
definite location and possession of the grant here in question,
prior to the date of the Gadsden Treaty, are shown with reasonable
certainty, and affirms the decree of that court confirming the
claim to the extent of the four
sitios granted and paid
for.
In December, 1891, Juan Pedro Camou filed a petition in the
Court of Private Land Claims, praying to have confirmed to him a
certain tract of land situated in the County of Cochise, Territory
of Arizona, known and designated as the San Rafael del Valle grant.
Subsequent proceedings resulted in a trial and a decree in favor of
the government, adjudging petitioner's claim and title invalid, and
dismissing the petition. The case was then brought by appeal to
this Court, where the decree of the Court of Private Land Claims
was reversed and the case remanded for further proceedings.
171 U. S. 171 U.S.
277.
Subsequently further proceedings were had in the Court of
Private Land Claims in pursuance of the mandate of this Court,
resulting, on June 2, 1899, in a decree confirming the petitioner's
title to 17,474.93 acres. From this decree of confirmation an
appeal was allowed to this Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
When this cause was before us, in
171 U. S. 171 U.S.
277, the validity of the claim was, upon full consideration,
upheld. It was, however, held that the recovery should be
restricted to the land
Page 184 U. S. 573
claimed in the petition and paid for, and as it was shown that
the survey was in excess of the land granted and paid for, the
cause was remanded to the Court of Private Land Claims for further
proceedings which resulted, as shown by this record, in a final
decree of confirmation establishing the boundaries of the grant,
and finding it to contain 4
sitios, or 17,474.93
acres.
The contention made on behalf of the government in this appeal
is that this grant of four
sitios was a mere float within
exterior boundaries containing a larger tract; that there were no
means afforded of identifying where, within those exterior
boundaries, such four
sitios were located; that,
accordingly, as matter of law, prescribed in the sixth section of
the Gadsden Treaty, the tract cannot be said to have been located,
and hence the grant must be held to be invalid.
It may well be doubted whether, even if this contention were
well founded, it can be urged at this stage of the controversy.
When the case was originally tried in the Court of Private Land
Claims, and subsequently was heard on appeal in this Court, the
principal contention on the part of the government was that the
State of Sonora had no power to make a grant of public lands, and
hence that the grant in question, although made in the name and by
the proper officers of that state, was invalid. The subject was
fully considered by this Court, and it was held that the several
states of the Republic of Mexico, of which Sonora was one, had at
the time when the transaction in question took place, authority to
make sales of vacant public lands within their limits.
The government further contended that this and similar grants by
the separate states had been annulled by certain decrees of Santa
Anna, when acting as dictator of Mexico, and that, as the
government of the United States had recognized Santa Anna, in
purchasing the territory covered by the Gadsden Treaty, the courts
of the United States must recognize, when dealing with personal
rights existing in the ceded territory, his declarations or decrees
in respect to titles, as authoritative. But this view of the legal
effect of the decrees of Santa Anna
Page 184 U. S. 574
upon the private rights of residents within the ceded territory
was not accepted by this Court, and, for reasons given in the
opinion of MR. JUSTICE BREWER, it was held that, as the grant made
by the State of Sonora was valid when made, it was not destroyed by
the arbitrary decree of a temporary dictator.
As, however, it appeared that the survey of the land claimed in
the petition was in excess of the four
sitios granted and
paid for, the Court applied the rule laid down in
Ely's
Administrator v. United States, 171 U.
S. 220, that, where there is a valid grant for a certain
number of acres within the outboundaries of a larger tract, the
Court of Private Land Claims may inquire, and, if it finds
sufficient reasons for determining the true boundaries of the tract
that was granted, it can so prescribe them, and sustain the claim
to that extent.
Upon this second appeal, we have only to consider whether the
Court of Private Land Claims reached its final decree in due
pursuance of the previous opinion and mandate of this Court. The
decision there made is the law of the case, and is not open for
reconsideration in the subsequent appeal. This subject was recently
considered in
Illinois v. Illinois Central Railroad,
184 U. S. 77, and
it was there shown that it is the settled law of this Court that,
after a case has been brought here and decided, and a mandate
issued to the court below, if a second writ of error is sued out,
it brings up for revision nothing but the proceedings subsequent to
the mandate. None of the questions which were before the Court on
the first writ of error can be reheard or examined on the second.
To allow a second writ of error or appeal to a court of last resort
on the same questions which were open to dispute on the first would
lead to endless litigation. In chancery, a bill of review is
sometimes allowed on petition to the court; but there would be no
end to a suit if every obstinate litigant could, by repeated
appeals, compel a court to listen to criticisms on their opinions
or speculate on chances from changes in its members.
Accordingly, in the present case, everything involved in the
question of the validity of the grant might be deemed to have been
determined on the first appeal, as well its alleged invalidity for
want of definite location, as for the want of power in the
Page 184 U. S. 575
state of Sonora to make the grant. However, even if this view
were waived, and it were conceded that our former mandate left it
open to the government to urge the invalidity of the grant by
reason of alleged want of definite location, our examination of the
record has satisfied us that the final decree of the Court of
Private Land Claims defining the boundaries of the grant was
justified by the evidence.
It is clearly shown that, on March 12, 1827, Rafael Elias
presented his petition to the Treasurer General of the State of
Sonora, asking for a grant of public lands adjacent to the ranch of
San Pedro, within the jurisdiction of Santa Cruz; that, on July 1,
1827, the Treasurer General issued an order directed to the
alcalde of the police of Santa Cruz, empowering him to
proceed to survey, appraise, and offer at public sale for thirty
consecutive days the lands indicated in the petition; that, on
August 20, 1827, in obedience to said order, the
alcalde
executed what is called an act of obedience, wherein he stated that
he would go to the ranch of San Pedro in order to proceed with the
survey of the lands petitioned for; that he appointed four citizens
to act as counters, tallymen, and chainmen, who were duly
qualified; that the survey was so proceeded in that there resulted
a segregated tract of land containing four
sitios, of
which Rafael Elias took possession; that at the conclusion of the
survey, the
testimonio states the
alcalde
proceeded to the appraisement of the land through experts, who
adjudged the value of the four
sitios to be $240 at the
rate of $60 each, and that, upon this appraisement, the
alcalde put them up at auction, asking for bidders, for
thirty consecutive days, from August 30 to September 30, 1827. On
September 30, 1827, after summoning the interested party, the
alcalde remitted the proceedings to the Treasurer General,
who transmitted them to the fiscal attorney, who on February 7,
1828, reported his opinion that "the proceedings be continued to
adjudication, according to the forms and requisites in use." The
testimonio then states that the Treasurer General, being
satisfied with the report of the fiscal attorney, by order of April
16 proceeded, asking for bidders, and none appearing, the four
sitios were auctioned off in favor of Rafael Elias. The
testimonio further discloses that
Page 184 U. S. 576
the purchase money was duly paid into the treasury, and a
certificate of the Treasurer General, of April 21, 1828, concluded
the proceedings; that, on December 25, 1832, followed the grant or
patent by the Treasurer General of the State of Sonora, stating
that the proceedings had been concluded with all the requisites and
formalities provided by law, and remained in the custody of the
Treasurer General as a perpetual muniment of title; that therefore,
in the exercise of the faculties conferred on him by law, and in
the name of the sovereign State of Sonora, he granted in due form
of law the four
sitios of land for the raising of cattle
and horses, comprised in the locality of San Rafael del Valle,
situated in the jurisdiction of the
presidio of Santa
Cruz, in favor of the citizen Rafael Elias, to whom he conceded,
gave, and adjudged the said land by way of sale, with the condition
and permanency established by the law, for himself and his
successors, with the injunction and condition that he must keep
said
sitios occupied and settled, without letting them be
abandoned or deserted at any time, with the understanding that, if
they be abandoned for the period of three consecutive years, and
there should be any person to petition for them, in such event,
with previous proof of the fact, they would be declared public
lands and granted anew to the highest bidder, excepting in such
cases where the abandonment was caused by the notorious invasion of
the public enemies, and admonishing said Elias and his successors
that they must keep and confine themselves to the land and limits
as marked precisely in the foregoing proceedings of survey, and
comply exactly with the law which imposed obligations to mark the
metes and boundaries with monuments of stone and mortar. It is
admitted by the government that the
expediente of this
grant is on file in the archives of Hermosillo, and is in the usual
form, and that, on folio 11 and on the back of it, of the book of
"Toma de Razon," is recorded an entry of the delivery of the title
deed to Rafael Elias for four
sitios of land, comprised in
the place called Rafael del Valle, situate in the jurisdiction of
the
presidio of Santa Cruz. This was followed by evidence
showing the continuous possession of the tract by Rafael Elias
until forced to leave it by hostile incursions of the Apache
Indians.
Page 184 U. S. 577
There was also proof of a regular deraignment of title from the
original grantee to Camou, the appellee in the present case.
Taking together, the evidence adduced by the claimant on the
first trial before the Court of Private Land Claims, and that
introduced after our mandate had gone to that court, we think it is
satisfactorily shown that the land described in the final decree is
that described in the original survey and of which Rafael Elias was
put in possession. The principal witnesses in this part of the case
were George J. Roskruge, a surveyor of more than twenty years'
experience in that part of the country, and who made the survey and
map of the San Rafael del Valle land grant, which was used upon the
trial. Douglass Snyder and Max Marks, who assisted in making that
survey, were also examined. These witnesses were subjected to a
rigorous cross-examination by the attorney of the government, and
their testimony has been minutely criticised in his brief.
But we are not able to perceive that the statements of these
witnesses have been materially shaken. Some discrepancies indeed
appear, but they are not important, and are naturally to be
expected from the nature of the case. Neither the original nor the
subsequent surveys were made with the care and precision that
characterize surveys made in the long settled parts of the country.
But it is evident -- and this is the important point -- that the
latter surveys were made to verify and renew the original survey,
and not with a purpose to locate a floating grant of uncertain
boundaries and extent. In this particular, this case is plainly
distinguishable from the case of
Ainsa v. United States,
161 U. S. 208,
where the claimant's case failed because there had been no actual
location of the grant prior to the Gadsden Treaty and because there
was no satisfactory evidence that the act of juridical possession
had ever taken place.
From our examination of the evidence, we concur in the view of
the Court of Private Land Claims that a definite location and
possession of the grant in question, prior to the date of the
Gadsden Treaty, are shown with reasonable certainty, and
accordingly the decree of that court, confirming the claim to the
extent of the four
sitios granted and paid for, is
Affirmed.