A title which has passed by location of a grant and its approval
by proper officers of the Land Department cannot be subsequently
divested by the then officers of the department.
Ballinger v.
Frost, 216 U. S. 240.
The action of the Commissioner in approving the location of a
nonmineral float cannot be revoked by his successor in office, and
an attempt so to do can be enjoined.
Noble v. Union River
Logging Co., 147 U. S. 165.
A suit to restrain the Secretary of the Interior and the Land
Commissioner from doing under color of their office an illegal act
which will cast a cloud upon the title of complainant is not one
against the United States, nor in this case is it one for recovery
of land merely, or an attempted appeal from the decision of the
Interior Department, or a trial of title to land not within the
jurisdiction of the court and wherein the United States is not
present or suable.
A survey is necessary to segregate from the public domain lands
attempted to be located by a float grant.
Stoneroad v.
Stoneroad, 158 U. S. 240. In
this case,
held that a survey was made and approved.
In this case,
held that the report of the Surveyor
General and the subsequent proceedings and survey by the Surveyor
General of Arizona amounted to a survey and finding that the lands
were nonmineral and that title thereto vested in the holder of the
float grant selecting the lands and passed out of the United
States.
Where, as in this case, in order to accommodate conflicting
claims and at the instance of the government, claimants have given
up rights to a definite tract and accepted float grants for an
equal amount of land, it will be presumed that the government would
make provision for the location of the substituted land as
expeditiously as possible and without expense to the holders of the
float.
41 App.D.C. 139 affirmed.
The facts, which involve the title to lands assigned on one of
the Baca Float Grants issued in substitution of the Las Vegas
Grant, are stated in the opinion.
Page 234 U. S. 526
MR. JUSTICE McKENNA delivered the opinion of the Court.
Appeal from the decree of the Court of Appeals of the District
of Columbia affirming a decree of the Supreme Court of the District
enjoining the Secretary of the Interior and the Commissioner of the
General Land Office from proceeding in the matter of certain
attempted entries under the public land laws of the United States
upon lands which the decree finds were selected and located by the
heirs of Luis Maria Cabeza de Baca on June 17, 1863, and known as
Baca Float No. 3, the title to which, the decree further finds,
passed out of the United States and vested in said heirs on April
9, 1864. The decree further directs the filing of the filed notes
and plats of survey of the float for the purpose of defining the
outboundaries thereof and segregating the same from the public
lands of the United States.
The origin and history of the Baca grant are set out in
Shaw
v. Kellogg, 170 U. S. 312;
Maese v. Herman, 183 U. S. 572, and
Priest v. Las Vegas, 232 U. S. 604.
It appears that there was a conflict between this grant and the
grant to the Town of Las Vegas, which was settled by an act passed
on June 21, 1800 (12 Stat. 71, c. 167), which enabled the heirs of
Baca to select
"an equal quantity of vacant land, not mineral, in the Territory
of New Mexico, to be located by them in square bodies not
exceeding
Page 234 U. S. 527
five in number."
It was made the duty of the Surveyor General of New Mexico
"to make survey and location of the lands so selected by said
heirs of Baca when thereunto required by them: Provided, however,
that the right hereby granted . . . shall continue in force during
three years from the passage of this act, and no longer."
The Las Vegas grant was ascertained to contain nearly 500,000
acres (496,446 96/100). The Baca heirs were therefore entitled to
locate that many acres "in square bodies, not exceeding five in
number." This controversy concerns the third of the bodies
selected. The selection of each tract was to be determined by the
same considerations, and those considerations are declared in
Shaw v. Kellogg, supra. Each location, it is there said,
would necessarily be of considerable size; in fact, each one was
nearly 100,000 acres, and each as a whole was to be nonmineral.
"No provision was made for indemnity lands in case mineral
should be found in any section or quarter-section. So that, when
the location was perfected, the title passed to all the lands or to
none."
The limits of location, it was said, was the Territory of New
Mexico -- limits not so broad as those of the territory ceded by
Mexico; within the limits, there were large areas of arid lands;
"its surface was broken by a few mountain chains, and crossed by a
few rivers." Lands, it was declared, could not be selected already
occupied by others. The lands must be vacant. Nor could lands be
selected
"which were then known to contain mineral. Congress did not
intend to grant any mines or mineral lands, but, with these
exceptions, their right of selection was coextensive with the
limits of New Mexico. We say 'lands then known to contain mineral,'
for it cannot be that Congress intended that the grant should be
rendered nugatory by any future discoveries of mineral. The
selection was to be made within three years. The title was then to
pass, and
Page 234 U. S. 528
it would be an insult to the good faith of Congress to suppose
that it did not intend that the title, when it passed, should pass
absolutely, and not contingently upon subsequent discoveries."
And it was declared that the Surveyor General of New Mexico was
to determine the character of the lands; he was to make survey and
location of the lands selected; upon him "was cast the specific
duty of seeing that the lands selected were such as the Baca heirs
were entitled to select." This is emphasized by saying that "he was
the officer who, by virtue of his duties, was most competent to
examine and pass upon the question of the character of the lands
selected." In the survey and location, it was recognized that he
was subject to the "control and direction of the Land Department,"
and, while he was not to act in defiance and independently of the
Land Department,
"it was for him to say, in the first instance at least, whether
the lands so selected and by him surveyed and located were lands
vacated and nonmineral."
These are the elements of the decision. How do they apply to the
case at bar?
First, as to the allegations of the bill. There are detailed
allegations of the origin of the grant to Baca, its presentation to
the Surveyor General of New Mexico under the then-existing law and
regulations, and his recommendation of its confirmation, also of
the confirmation of the grant to the Town of Las Vegas, "leaving,"
as he said, "the respective claimants the right to adjust their
conflicting claims in courts." The other facts which the bill
alleges we set out in narrative form as follows:
Both grants were confirmed and the right given to the heirs of
Baca, as we have seen, to select other lands equal in quantity to
the lands claimed by Las Vegas.
On July 26, 1860, about a month after the act was passed, the
Commissioner of the General Land Office informed the Surveyor
General of New Mexico that it was
Page 234 U. S. 529
the latter's duty to separate from the public lands the pueblos
or individual confirmed claims, and in that connection drew his
special attention to the Act of June 21, 1860, which referred to
the "claim of the Heirs of Luis Maria Baca," and, in order to give
the act timely effect, the Surveyor General was directed to give
the claim priority in surveying private land claims. That officer
was directed to have the exterior lines of Las Vegas run off, and,
this being done, the right would accrue to the Baca claimants to
select a quantity equal to the area elsewhere in New Mexico of
vacant lands, not mineral, in square bodies not exceeding five in
number. The instructions then proceed as follows:
"You will furnish them with a certificate, transmitting at the
same time a duplicate to this office, of their right and the area
they are to select in five square parcels. Should they select in
square bodies according to the existing line of the surveys, the
matter may be properly disposed of by their application, duly
indorsed and signed with your certificate, designating the parts
selected by legal divisions or subdivisions, and so selected as to
form five separate bodies in square form. Then the certificate thus
indorsed is to be noted on the records of the Register and Receiver
of Santa Fe, and sent on here by those officers for approval.
Should the Baca claimants select outside of the existing surveys,
they must give such distinct descriptions and connection with
natural objects in their applications to be filed in your office,
as will enable the deputy surveyor, when he may reach the vicinity
of such selections in the regular progress of the surveys, to have
the selections adjusted as near as may be to the lines of the
public surveys which may hereafter be established in the region of
those selections. In either case, the final conditions of the
certificate to this office must be accompanied by a statement from
yourself and register and receiver that the land is vacant and not
mineral. "
Page 234 U. S. 530
The grant to the Town of Las Vegas was surveyed, and the fact
communicated by the Surveyor General to the representative of the
heirs of Baca, and they were informed that they were entitled to
select an equal quantity of land, that he was authorized to survey
and locate the same, and that his office was ready to cooperate
with their legal representative "and receive his application for
the location of the lands granted by the government."
Thereupon, on or about June 17, 1863, in pursuance of the notice
from the Surveyor General and the Act of Congress, the following
was addressed to the Surveyor General:
"I, John S. Watts, the attorney of the heirs of Don Luis Maria
Cabeza de Baca, have this day selected as one of the five locations
confirmed to said heirs under the 6th section of the Act of
Congress approved June 21st, 1860, the following tract, to-wit:
commencing at a point one mile and a half from the base of the
Solero mountain in a direction north forty-five degrees east of the
highest point of said mountain, running thence from said beginning
point west twelve miles, thirty-six chains, and forty-four links,
thence south twelve miles, thirty-six chains, and forty=four links,
thence east twelve miles, thirty-six chains, and forty-four links,
thence north twelve miles, thirty-six chains, and forty-four links,
to the place of beginning, the same being situated in that portion
of New Mexico now included by act of Congress approved February 24,
1863, in the Territory of Arizona; said tract of land is entirely
vacant, unclaimed by anyone, and is not mineral to my
knowledge."
"JOHN S. WATTS"
"Attorney for the Heirs of Louis Maria Cabeza de Baca"
On the same day, the Surveyor General certified to the
Commissioner of the General Land Office the fact of the
application, repeating it, and concluding as follows:
Page 234 U. S. 531
"And I further certify that the said tract of land being the
one-fifth part of the private claim confirmed to the said heirs,
contains ninety-nine thousand two hundred and eighty-nine acres and
thirty-nine hundredths of an acre, and that this location is the
third of the series (application to locate the same, filed in this
office October 31, 1862, dated October 30, 1862, having been
withdrawn -- see letter of Commissioner of the General Land Office
dated February 5, 1863), and, with the three locations, numbered
one, two, and four heretofore made, included four-fifths of the
said private claim confirmed to the heirs of Luis Maria Cabeza de
Baca, by the Act of Congress approved June 21, 1860. Said location
is hereby approved."
"In witness whereof, I have hereto set my hand this 17th day of
June, 1863."
"JOHN A. CLARK"
"Surveyor General"
The communication was mailed the following day, with a letter to
the Commissioner as follows:
"SURVEYOR GENERAL'S OFFICE"
"Santa Fe, New Mexico, June 18, 1863"
"Honl. J. M. EDMUNDS, Comm'r of General Land Office,"
"Washington City, D.C."
"Sir:"
"I enclose herewith copy of the application and certificate of
location No. 3 of the private claim confirmed to the heirs of Luis
Maria Cabeza de Baca."
"As this location is far beyond any of the public surveys, I
have not deemed it necessary to procure any certificate from the
register and receiver of the land office, as, from the nature of
the case, they cannot officially know anything concerning it."
"I am respectfully your"
"Obt. servt."
"JOHN A. CLARK"
"Surveyor General "
Page 234 U. S. 532
On July 18, the Commissioner acknowledged the receipt of the
communication, stating.
"Your approval of the location under consideration is found to
have ignored the imperative condition that the lands selected at
the base of Solero Mountain now included by the Act of Congress
approved February 24, 1863, in the Territory of Arizona, is vacant
land and not mineral. Before the application of location No. 3 of
the heirs aforesaid can be approved, by this office, it is
necessary that our instructions of the 26th of July, 1860, should
be complied with by furnishing a statement from yourself and
Register and Receiver that the land thus selected and embracing
one-fifth of the claim, or 99,289 39/100 acres, is vacant and not
mineral."
"I am very respectfully your"
"Your obt. servt."
"J. M. Edmunds, Commissioner"
In a letter dated April 2, 1864, the Surveyor General, in reply
to that of the Commissioner, stated "that there is no evidence in
the office of the Surveyor General of New Mexico" that the tract
selected
"contains any mineral, or that it is occupied. There have been
no public surveys made in the neighborhood of said tract, and there
is no record of or concerning the land in question in the Surveyor
General's office, nor, as I believe, in the office of the Register
or Receiver of the Land Office of New Mexico. As I am personally
unacquainted with that region of country, I cannot certify that the
land in question is 'vacant and not mineral' or otherwise. Those
facts can only be determined by actual examination and survey."
On March 25, 1864, the Receiver of the Land Office in New Mexico
made a certificate stating that the lands applied for "are vacant
and not mineral so far as the records of this office show (not
having been surveyed)." The Register, in his certificate of the
same date, stated that
Page 234 U. S. 533
the lands "are not surveyed, and, from all information in this
office, are vacant and not mineral."
On about April 9, 1864, having been required by the Baca heirs
to survey the tract located by them, the Commissioner of the
General Land Office issued instructions to the Surveyor General of
Arizona which recited that the location by the Baca heirs had been
approved by the Surveyor General of New Mexico, in whose
jurisdiction, it was said, the application properly came at the
date of the approval. The instructions referred to the Act of
Congress of 1860 and the rights it conferred, and stated that the
Act of June 2, 1862, required all grants to be surveyed at the
expense of the claimants, and that, whenever the Baca claimants
should pay or secure to be paid a sum sufficient to liquidate all
the expenses, a survey was to be directed of the application and
transcripts of the field notes and plats to be transmitted to the
General Land Office to constitute "the muniments of title, the law
not requiring the issue of patents of these claims." Directions as
to the manner of marking lands were given. Accompanying the
instructions was a copy of the certificate of the Surveyor General
of New Mexico, dated June 17, 1863, and following that the
following order:
"GENERAL LAND OFFICE"
"April 9, 1864."
"LEVI BASHFORD, ESQ., Surveyor General, Tucson, Arizona"
"Sir:"
"The foregoing statement and the certificate of Surveyor General
Clark having been submitted to this Department, and having
undergone a careful examination, the location being approved by him
to perfect title under the authority of the act approved June 21,
1860, application for survey having been made. Instructions (copy
herewith attached) have been given to Surveyor General Levi
Bashford of Arizona, in which territory the lands
Page 234 U. S. 534
located now are, to run the lines indicated and forward complete
survey and plat, to be placed on file for future reference as
required by law."
"J. M. EDMUNDS, Commr."
In pursuance of this order, a survey was undertaken, but the
surveyors, while engaged in the work of the survey, were killed by
hostile Indians, and no survey was ever returned (alleged on
information and belief). Notwithstanding the repeated requests of
the heirs of Baca, the Commissioner of the General Land Office
failed and refused to continue or have made the survey ordered as
above stated, and persisted in such refusal until on or about June
17, 1905, on which date the Commissioner, by an official order,
authorized and directed the Surveyor General of Arizona to cause a
survey to be made, and in pursuance of and under contract No. 136,
dated June 17, 1905, one Philip Contzen was authorized and required
to run the lines indicated on the application of the Baca heirs
(Float No. 3) so as to adjust the lines, as near as might be, to
the lines of the public surveys.
The survey was made and duly certified by the Surveyor General
of Arizona as strictly conformable to the field notes which had
been examined, approved, and filed in his office, and that the plat
and survey had been examined and found correct by the Commissioner
of the General Land Office.
On or about January 12, 1905, the Commissioner of the General
Land Office, disregarding the decision and order of the then
Commissioner of the Land Office of April 9, 1864, gave such
instructions to the Surveyor General of Arizona regarding his
duties as to the character of the lands that that officer, in
December, 1906, forwarded the plat and survey hereinbefore
mentioned to the Commissioner of the General Land Office with a
report, accompanied by the alleged information which he had
gathered
Page 234 U. S. 535
and the recommendation that the location of Baca Float No. 3,
made, as hereinbefore stated, June 17, 1863, be entirely
rejected.
On or about May 13, 1907, contrary to law, and without
jurisdiction so to do, and disregarding the order of his
predecessor, the Commissioner rendered a decision ordering a
hearing before the Surveyor General of Arizona to determine whether
said lands were at the time of said location, vacant and
nonmineral. On or about June 2, 1908, the First Assistant Secretary
of the Interior, in a decision upon an appeal from said decision of
the Commissioner, contrary to law and without jurisdiction,
affirmed the decision of the Commissioner insofar as it remanded
the case for a hearing before the Surveyor General of Arizona.
A motion to review was subsequently made and denied.
By the acts done in the selection and location of the lands,
including the order of Commissioner Edmunds of April 9, 1864,
requiring a survey thereof, the title to the lands vested in fee in
the heirs of Baca, and it was not within the power of the Land
Department to revoke or annul the prior rulings, or to evade the
rights of such heirs or their successors in title, and that (this
on information and belief) the Land Department has always treated
the lands selected as segregated from the public domain, and they
have for many years been so marked upon the maps issued by the
Department, as more especially appears from the map of the
Territory of Arizona of 1903.
It is alleged that one Henry Ohm and one Lyman W. Wakefield have
filed homestead applications upon land lying within the lands
located by the Baca heirs, and instructions have been issued from
the officers of the Land Department, permitting proofs to be made
thereof. It is alleged that there are many other entries upon the
lands, and that they and Ohm's and Wakefield's applications will
cast clouds upon the title of the Baca location.
Page 234 U. S. 536
The value of the lands located is alleged to be over $100,000,
and that plaintiffs have no adequate remedy at law.
An injunction was prayed restraining defendants from further
proceeding in the homestead applications, that they be required to
place on file for future reference, as required by law, the Contzen
survey and plat dated June 17, 1905; that anything shown thereby or
connected therewith, other than that included in the order of the
Commissioner of April 9, 1864, and other than the exterior
boundaries, accessory lines, crosses and distances, monuments and
measurements showing the tract located by the Baca heirs known as
location No. 3, together with any topographical features and the
references to the lines of the public surveys be cancelled and
expunged from the said plat of said survey, and particularly the
lines, crosses and distances, monuments and measurements purporting
to show the segregation from said land of the alleged mineral
portion, the Tubac township, and the conflicting portions of the
San Jose, Sonoita, Tumacacori, and Calabasas claims.
A demurrer was filed to the bill which set out as grounds: (1)
the real purpose of the suit is to recover certain real estate
situated in the Territory of Arizona by trial of the legal title
thereto, and that the relief, if any, plaintiffs are entitled to,
is at law; (2) if the legal title to the property passed to
plaintiffs, as alleged, on April 9, 1864,
"naught else remains for the defendants to do than to perform
the ministerial duty of receiving and recording the plat of survey
and field notes thereof,"
and the remedy is by mandamus; (3) if the legal title to the
land has not passed to plaintiffs, as alleged, it is still in the
United States, which it is not shown has consented to this suit,
and the court in such event is without jurisdiction; (4) on the
face of the bill, it is impossible to grant the prayers of
plaintiffs without deciding whether the title is still in
Page 234 U. S. 537
the United States; the determination of the suit therefore
affects the United States, and they are real and indispensable
parties in interest, and have not consented to be sued; (5) the
acts sought to be enjoined are exclusively within the jurisdiction
of the Interior Department, and are not subject to judicial
control; (6) the parties who have initiated claims are materially
interested in the suit and are necessary parties to it; (7) the
Court is without jurisdiction to expunge the matters and things
prayed to be expunged from the plat of the survey of the San Jose
de Sonoita claim for the reason that the claimants are not parties
to the suit, and their claim has been confirmed by the Supreme
Court of the United States (
Ely's Administrator v. United
States, 171 U. S. 220);
(8) the citizens of Tubac Township are necessary parties; (9) there
never has been an adjudication by the Secretary of the Interior and
the Commissioner of the General Land Office, or either of them,
that the lands involved were, on June 17, 1863, nonmineral and
vacant or unoccupied lands such as the heirs of Baca were
authorized to select under the terms of the sixth section of the
Act of June 21, 1860 (12 Stat. 71, c. 167); (10) the plaintiffs are
not entitled to the relief prayed for, or to any relief; (11) the
bill is in other respects uncertain, informal, and insufficient to
entitle plaintiffs to any relief.
The demurrer was overruled, Mr. Justice Barnard of the supreme
court, saying that the main question to be decided on the demurrer
was as to the effect of the Act of Congress, and, considering the
act and the proceedings taken under it, recited in the bill, he
said he was of opinion that the title to the "tract vested in the
heirs of said Baca when the location was approved and the survey
ordered," and that therefore plaintiffs might maintain their bill
for some portion at least, of the substantial relief for which they
prayed, and that the demurrer, being to the whole bill, must be
overruled. And he said:
"This conclusion
Page 234 U. S. 538
as to title, if correct, will enable the suit to be maintained
notwithstanding the objection made as to want of other parties
defendant. Title being out of the United States, it has no interest
and is not a necessary party, and the Land Department cannot
rightfully treat the tract as open to public entry, and the
officers may therefore be enjoined."
The defendants (appellants) then answered.
The answer admitted what must be regarded as the fundamental
elements of the bill. So far as its denials of any of the averments
of the bill or its allegations of fact are material, we shall refer
to them hereafter. The proofs taken under the bill and answer were
not regarded by the supreme court as determining a different
decision from that expressed on the demurrer to the bill -- that
is, the court repeated its view that the title passed on April 9,
1864, to the heirs of Baca, and that the court had authority to
enjoin defendants from treating the land as being public land. The
injunction prayed for was granted except that the "Contzen" survey
and plat were ordered to be filed unchanged. A decree was entered
accordingly. It was affirmed by the Court of Appeals, as we have
said.
The crux of the case, in the views of the courts below, is the
question whether title to the lands passed out of the United States
in April, 1864, and the careful and elaborate consideration of it
makes the discussion of it mere repetition.
The contentions of the parties are very accurately opposed.
Appellants contend that,
"under a proper construction of the Act of June 21, 1860, title
to the 'float' cannot pass until there has been an official survey
and a final determination by the proper officers that the land
selected in 1863 was of the character which the statute permitted
the heirs to take -- a matter still
sub judice in the
Department,"
except as to certain conflicting grants. The appellees insist,
and the courts below, as we have
Page 234 U. S. 539
seen, decided, that the location of the grant and the approval
of it by the Surveyor General of New Mexico, and subsequently, in
April, 1864, by Commissioner Edmunds of the Land Office,
transferred the title to the heirs of Baca.
There is some controversy upon the fact as to whether the
Commissioner had before him the proof he had demanded of the
nonmineral character of the land. We think the lower courts rightly
deduced from the evidence "that the Commissioner," to quote from
the opinion of the Court of Appeals,
"having carefully considered all the facts in the case,
concluded to adopt the approval of the Surveyor General of New
Mexico of this location to perfect title under the authority of
said act [Act of 1860], and in order completely to segregate this
land from the public domain ordered the survey [41 App.D.C.
153]."
And that this action was within the authority of those officers,
we may refer to
Shaw v. Kellogg, 170 U.
S. 312. In that case, we have seen, the Surveyor General
of New Mexico was the officer selected and who was most competent
to examine and pass upon the question of the character of the
lands, and to pass upon them at the time of location -- not upon
evidence collected many years after the location, directed to what
might have been known many years before. The selection and location
was to be made within three years of the passage of the act in a
comparative wilderness, and the "title was then to pass," and "pass
absolutely, and not contingently upon subsequent discoveries."
We recognized in
Shaw v. Kellogg that the action of the
Surveyor General was subject to the supervision of the Land
Department, and that condition is satisfied in the case at bar. The
Commissioner was put in possession of all of the facts as to the
lands, and, exercising his judgment upon them, approved the
location.
The facts in
Shaw v. Kellogg give pertinence to its
principles,
Page 234 U. S. 540
notwithstanding some differences between its facts and those in
the case at bar. In that case, there was a positive declaration by
the Surveyor General of the nonmineral character of the lands; in
the case at bar, it is an inference deduced from the circumstances,
it being the "duty of the officers to decide the question" -- a
duty which they "could not avoid or evade." In that case, the Land
Office undertook to reserve from the grant lands which might be
subsequently discovered to be mineral. In this case, it directed an
inquiry of their character long after the location of the grant,
and seeks to determine the legality of the location by the
information said to be obtained.
The title having passed by the location of the grant and the
approval of it, the title could not be subsequently divested by the
officers of the Land Department.
Ballinger v. United
States, 216 U. S. 240. In
other words, and specifically, the action of the Commissioner in
approving the location of the grant cannot be revoked by his
successor in office, and an attempt to do so can be enjoined.
Noble v. Union River Logging R. Co., 147 U.
S. 165;
Philadelphia Company v. Stimson,
223 U. S. 605. The
suit is one to restrain the appellants from an illegal act under
color of their office which will cast a cloud upon the title of
appellees.
This disposes of the contentions of appellants that this is a
suit against the United States, or one for recovery of land merely,
or that there is a defect of parties, or that the suit is an
attempted direct appeal from the decision of the Interior
Department, or a trial of a title to land not situated within the
jurisdiction of the court "wherein an essential party is not
present in the forum and is not even suable,-the United
States."
We agree with the courts below that a survey was necessary to
segregate the lands from the public domain.
Stoneroad v.
Stoneroad, 158 U. S. 240.
This was done by the
Page 234 U. S. 541
Contzen survey, which, we have seen, was directed to be filed by
the lower courts without alteration -- a decision which we
approve.
There are other contentions of appellants which call for no
extended comment, as we concur with the courts below in regard to
them. For instance, it is contended that the Surveyor General of
New Mexico had lost authority to approve the location, and that
duty had devolved upon the Surveyor General of Arizona. To the
contention it may be replied, as the Court of Appeals in effect
replied, that the Act of 1860 devolved the duty on the Surveyor
General of New Mexico, and the Land Office, upon whom devolved the
ultimate responsibility, approved the location.
A point is made upon attempts to change the location, of which
it is enough to say that they were not accepted by the Land
Department, and the claimants were remitted to the location under
consideration.
Another contention is made on the conflict of the grant as
located with other grants, to which the Court of Appeals replied
that it was not now concerned with such question, and that if, as
suggested, a controversy should arise, it "will properly be
adjudicated in the courts where the lands are located." In this we
concur.
Whose duty it was to pay the expense of the survey is also in
controversy. The appellants assert it to have been the duty of the
claimants under the Act of June 2, 1862 (12 Stat. 410, c. 90), and
that was the view, we have seen, of the Land Department. The
appellees contend that the obligation was upon the government under
the granting act. That act provides, as we have seen, that
"it shall be the duty of the Surveyor General of New Mexico to
make survey and location of the land so selected by the said heirs
of Baca when thereunto required by them. . . ."
The obligation is explicit, and there was reason for it. To
accommodate conflicting claims, and at the instance of
Page 234 U. S. 542
the government, the Baca claimants gave up their rights to a
definite tract of land, and, as appellees say, expressing the
equities of the claimants, whatever its character or condition, and
the government therefore would naturally make provision for the
location of the substituted land as expeditiously as possible, and
without expense to the Baca heirs. We therefore think the Act of
1860, not that of 1862, applied.
The contention that appellees have not shown sufficient title is
untenable.
Decree affirmed.