Opinion in
Lane v. Watts, 234 U.
S. 525, explained and leave to file petition for
rehearing denied.
Quaere whether the Act of August 4, 1854, incorporating
the territory acquired under the Gadsden Treaty with, and making it
subject to,
Page 235 U. S. 18
the laws of the Territory of New Mexico made the provisions of §
8 of the Act of July 22, 1854, applicable thereto.
Statutory reservations of lands within territory acquired under
treaty which are covered by claims of private parties may be
subject to repeal, and so
held as to reservations of
Mexican lands under § 8 of the Act of July 22, 1854.
Lockhart
v. Johnson, 181 U. S. 516.
Quaere whether the Act of June 21, 1860, did not repeal
pro tanto the reservation provisions of § 8 of the Act of
July 22, 1854.
Where the lands involved have not been reserved, but are
necessarily included within one or the other of two grants, they
are not public lands, nor subject to disposal by the Land
Department.
The question of superior title of contesting claimants to lands
within territory acquired under the Gadsden Treaty cannot be
determined in an action between the government and one of the
claimants and to which the other claimant is not a party.
The facts, which are the same as those involved in
Lane v.
Watts, 234 U. S. 525, are
stated in the opinion.
Page 235 U. S. 20
MR. JUSTICE McKENNA delivered the opinion of the Court.
Leave to file an application for rehearing is asked. We see no
reason to grant it, but to avoid misunderstanding of the opinion,
we may add a few words.
The opinion is explicit as to the main elements of decision. It
decides that the title to the lands involved passed to the heirs of
Baca by the location of the float and its approval by the officers
of the Land Department and order for survey in 1864, in pursuance
of the Act of 1860, 12 Stat. 71, 72, c. 167. A survey, it was said,
was necessary to segregate the land from the public domain, and the
condition was satisfied by the Contzen survey. It follows,
therefore, that the land was not subject to homestead or other
entry under the public land laws, and the asserted jurisdiction of
the Land Department over it for that purpose could be
restrained.
It is suggested, however, by appellees that appellants urge that
certain claimed Mexican grants conflict with the location, and that
the opinion leaves uncertain the effect of this, and that therefore
it may encourage or require further litigation. Appellants assert
that the effect of the claimed Mexican grants is reserved from
decision, and yet the Land Department is enjoined from exercising
any jurisdiction over the conflicting areas.
Page 235 U. S. 21
A few words of explanation will make certain the extent of our
decision. In adjustment of the conflict between the Baca grant and
the grant to the Town of Las Vegas, the Act of 1860 was passed. The
quantity and the manner of location were defined. The land was to
be located in square bodies and be "vacant land, not mineral, in
the Territory of New Mexico," and it was made the duty of the
Surveyor General of New Mexico to survey and locate the lands when
selected by the heirs of Baca. There were no other conditions, and
these were fulfilled in 1864.
But it is said that portions of the tract as located were then
embraced in two claimed Mexican grants, to-wit, the Tumacacori and
Calabazas grant and the San Jose de Sonoita grant, and that, by
virtue of § 8 of the Act of July 22, 1854, 10 Stat. 308, c. 103,
the lands covered by such claims were reserved from other disposal
and therefore from location under the Baca float. That section made
it the duty of the Surveyor General of New Mexico, under such
instructions as might be given by the Secretary of the Interior, to
ascertain the character and extent of claims to such lands under
the laws, usages, and customs of Mexico and Spain, and to make 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 1848, and report the same to Congress for its consideration and
action. It was provided that,
"until the final action by 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."
Subsequently, by the Act of August 4, 1854, the territory
acquired under the Gadsden treaty was incorporated with the
Territory of New Mexico and made subject to the laws of that
territory, 10 Stat. 575, c. 245. Assuming, not deciding, that this
provision made § 8 applicable to lands acquired under the Gadsden
Treaty, the reservation
Page 235 U. S. 22
was statutory and subject to repeal.
Lockhart v.
Johnson, 181 U. S. 516. And
there are grounds for a contention that the Act of 1860, making a
grant to the Baca heirs, effected a repeal
pro tanto of
the reservation of the Act of 1854. But there are answers more
directly under § 8 of that act. The mere fact of a claimed Mexican
grant did not reserve the lands covered by it.
Ibid. It
was only after their presentation to the Surveyor General of New
Mexico for his report thereon that the lands were reserved "until
the final action of Congress." There was no reservation except by
this statute, and it related only to lands covered by a claim
presented to the Surveyor General. There is no language in the
treaties which implies a reservation.
Lockhart v. Johnson,
at p.
181 U. S.
523.
The Tumacacori and Calabazas grant was not presented to the
Surveyor General until June 9, 1864, and his report was not laid
before Congress until May 24, 1880. A petition for confirmation of
the San Jose de Sonoita grant was not presented to the Surveyor
General until December, 1879. It will be seen, therefore, that
there was no disclosure of these claims until after the selection
of the Baca grant and its location by the Land Department, the
consummation of which was accomplished by the approval of the
location April 9, 1864. Besides, the Tumacacori and Calabazas claim
was held untenable and void by this Court (
Faxon v. United
States, 171 U. S. 244),
and the greater part of the San Jose de Sonoita claim was rejected
in
Ely v. United States, 171 U. S. 220. And
we may say that, before the Contzen survey was made, § 8 of the Act
of 1854 had been repealed.
Lockhart v. Johnson, supra.
The contention that the lands covered by these claims were
reserved by the Act of 1854 being untenable, it results that the
only conflict with the Baca float as located April 9, 1864, which
requires consideration and decision
Page 235 U. S. 23
is the one arising from that part of the San Jose de Sonoita
claim, which has been confirmed as against the United States. And,
in any event, the lands in that conflict are not public lands or
subject to disposal by the Land Department. They belong either to
the owners of the Baca float or to the owners of the confirmed
portion of the San Jose de Sonoita grant. But which is the superior
claim we cannot now consider or decide, because the Sonoita
claimants are not parties to this cause, and because the question
will more properly arise in the local courts, and not in a
proceeding in the District of Columbia against the Secretary of the
Interior.
With this explanation of our former opinion, leave to file
the petition for rehearing is denied.