1. An appeal of a case originating below under the statute of
June 14, 1860, relating to surveys of Mexican grants in California,
and in which the appellants appear on the record as
The United
States, simply (no intervenors being named), remains within
the control of the attorney general, and a dismissal of the case
under the 29th rule of this Court is not subject to be vacated on
the application of parties whose names do not actually appear in
the record as having an interest in the case, even although it is
obvious that below there were some private owner
Page 68 U. S. 711
contesting the case under cover of the government name, and that
some such were represented by the same counsel who now profess to
represent them here. SWAYNE and DAVIS, JJ., dissenting. TANEY,
C.J., and GRIER, J., absent.
2. Where parties are permitted by the district court under this
act to appear and contest the survey and location, the order of the
court permitting such appearance and contest should be set forth in
the record. Only those persons who by such order the made parties
contestant will be heard on appeal. MILLER, SWAYNE, and DAVIS, JJ.,
dissenting. TANEY, C.J., and GRIER, J., absent.
3. Where, under this act, notice has been given to all parties
having or claiming to have any interest in the survey and location
of the claim, to appear by a day designated, and intervene for the
protection of their interest, and upon the day designated certain
parties appeared, and the default of all other parties was entered;
the opening of such default with respect to any party subsequently
applying for leave to appear and intervene, is a matter resting in
the discretion of the district court, and its action on the subject
is not open to revision on appeal.
An Act of Congress of June 14, 1860,
* authorizes the
district courts of California, on the application of any party
interested, to make an order requiring the survey of any private
land claims to be returned into court. The order is to be granted
on the application of "
any party" whom the court
"shall deem to have such an interest in the survey and location
. . . as to make it just and proper that he should be allowed to
take testimony, and to intervene for his interest therein."
If the objection to the survey and location is made on the part
of the United States, the order to return the survey into court is
to be on the motion of the district attorney, founded on sufficient
affidavits.
"And if the application for such order is made by other parties
claiming to be interested in, or that their rights are affected by
such survey and location, the court, or the judge, in vacation,
shall proceed summarily, on affidavits or otherwise, to inquire
into the fact of such interest, and shall, in its discretion,
determine whether the applicant has such an interest therein as,
under the circumstances of the case, to make it proper that he
should be heard in opposition to the survey, and shall grant or
refuse the order. "
Page 68 U. S. 712
But the act provides also
"that all the parties claiming interest &c., derived from
the United States,
shall not be permitted to intervene
separately, but the rights and interests of said parties shall
be represented by the District Attorney of the United States,
intervening
in the name of the United States, aided by
counsel acting for said parties jointly, if they think proper to
employ such counsel."
The act also provides that before proceeding to determine the
validity of any objection to the location made by the surveyor
general, notice by newspaper publication shall be given to all
parties in interest, that objection has been made, and admonishing
them to intervene for the protection of their interest.
The present case -- another case (
United States v.
Nunez) being just like it and depending upon it -- was one of
these surveys and locations which had been certified into the
District Court for the Northern District of California. The record
-- a confused sort of document -- showed that on the 3d of October,
1860, "the United States Attorney, E. W. Sloan, and
J. B.
Williams appeared for the
United States," other
counsel for the claimant, Estudillo, and R. Simson for a certain
Castro,
"and on motion, it was ordered that he be allowed five days to
make showing of his right to intervene herein, and
no other
party appearing, whereupon it is ordered that
the default
of all parties not appearing as aforesaid be and the same is hereby
entered."
Subsequently, to-wit, October 31, 1860, "come the
United
States by
their attorney, and except to the official
survey." Subsequently to this "the petition of Thomas W. Mulford,
by his attorneys, E. W. Sloan and J. B. Williams," set forth that
he had an interest in the land claimed, and prayed the court to
open the default entered on the preceding 3d, which motion the
court, on the 20th of February, 1861, "denied." The case being here
by appeal, as the
United States, appellant, and J. J.
Estudillo, appellee, Mr. Bates, A.G., in behalf of the United
States, and Mr. Laitham for J. B. Estudillo, appellee, signed an
agreement at the last vacation that the appeal should be dismissed;
and the case was dismissed by the clerk accordingly, this agreement
and dismissal purporting to be made under the
Page 68 U. S. 713
29th rule of this Court, which provides that when the appellant
and appellee in any appeal may, in vacation, by
their
respective attorneys,
who are entered as such upon the
record, sign and file with the clerk an agreement in writing,
directing the case to be dismissed, it shall be the duty of the
clerk to enter the case dismissed.
Page 68 U. S. 715
MR. JUSTICE FIELD delivered the opinion of the Court.
The appeal in this case was dismissed during the last vacation
by stipulation of the parties under the twenty-ninth rule. A motion
is now made on behalf of one Thomas W. Mulford and others that the
stipulation be vacated, the mandate of the Court be withheld, and
their attorney be allowed to enter his appearance and be heard on
their behalf.
The case was brought before the Court on appeal from the decree
of the District Court of the Northern District of California
approving a survey of a confirmed private land claim under the Act
of June 14, 1860. After the survey was returned into the district
court, a monition was issued to the marshal requiring him to notify
all parties having or claiming to have any interest in the survey
and location of the claim, to appear on a day designated and
intervene for the protection of their interests. The only parties
who
Page 68 U. S. 716
appeared in pursuance of the notice given by the marshal were
the United States, the claimant, and one Castro, and the court
ordered the default of all other parties to be entered.
Subsequently, Mulford, who now appears in the motion before us,
applied to the court to open the default and to allow him to
intervene, alleging an interest in a portion of the land embraced
by the survey under a patent from the State of California, but his
application was denied. The action of the court in this respect is
not subject to revision, the opening of the default being a matter
resting in its discretion.
The motion is on behalf of Mulford
and others, but who
are included by the term "others" we are not informed by the
record. Their names are not given, nor is their interest stated,
except in the very general and loose terms with which it is
designated in the argument of counsel as that of settlers on the
land under the laws of the United States.
The act of 1860 is liberal in the permission it gives for
interposing objections to the surveys of confirmed claims made by
the Surveyor General of California, but at the same time it limits
with special care the permission to those who are in fact
interested in making a contest. It authorizes the return of surveys
for examination and adjudication only upon the application of
parties who, in the judgment of the court or district judge, have
such interest as to make it proper for them to intervene for its
protection. It provides that when objections are interposed by the
United States, the application shall be made by the district
attorney and be founded on "sufficient affidavits," and that when
application is made by "other parties claiming to be interested in
or that their rights are affected by" the survey and location,
there shall be a preliminary examination into the fact of such
alleged interest. "The court or the judge in vacation," says the
statute,
"shall proceed summarily on affidavits or otherwise to inquire
into the fact of such interest, and shall in its discretion
determine whether the applicant has such an interest therein as,
under the circumstances of the case, to make it proper that he
should be heard in opposition to the
Page 68 U. S. 717
survey, and shall grant or refuse the order to return the survey
and location as shall be just."
The proceedings upon this examination, or at least the order of
the court or judge thereon, should appear in the record, for we can
only know by the order whether the parties have been permitted to
contest the survey before the court. When the interest of parties
applying is shown and the order is made, those who claim under the
United States by "preemption, settlement, or other right or title"
must intervene not separately, but collectively, in the name of the
United States, and be represented by the district attorney, and any
counsel employed by them cooperating with him.
In the present case, it does not appear that any of the
precautionary steps required by the act in question were pursued by
the nameless
"others" for whom the present motion is made.
No presentation, so far as the record discloses, was made of the
interest of any persons against the survey besides those we have
named. And it is not permissible for parties to appear in this
Court and be heard in opposition to the survey approved who have
never participated or asked to participate in the proceedings upon
the survey in the court below.
These views also dispose of the motion to set aside the
dismissal of the appeal in the case of
United States v.
Nunez.
The motion in both cases is
Denied.
MESSRS. JUSTICES SWAYNE and DAVIS dissented.
* 10 Stat. at Large 33.
MR. JUSTICE MILLER.
I concur in the judgment of the Court overruling the motion to
set aside the agreement between the attorney general and the
counsel of the claimant, by which it is agreed that this appeal
shall be dismissed. But I do not agree to the ground upon which the
judgment of the Court is based, and as the matter involves the
construction of an important provision of the Act of June 14, 1860,
concerning surveys of Mexican grants in California, I think it of
sufficient consequence to justify a statement of my views
separately.
Page 68 U. S. 718
That act provides in its third section that any party whom the
district judge "shall deem to have sufficient interest in the
survey and location of a land claim," "shall be allowed to
intervene for his interest therein," and that the court or judge in
vacation shall proceed summarily to determine, in his discretion,
whether the applicant has such an interest as entitles him to be
heard in opposition to the survey which has been made and reported
to the court. The statute then proceeds in the following
language:
"
Provided, however, that all parties claiming interests
under preemption, settlement, or other right or title derived from
the United States shall not be permitted to intervene separately,
but the rights and interests of said parties shall be represented
by the District Attorney of the United States, intervening in the
name of the United States, aided by counsel acting for said parties
jointly, if they think proper to employ such counsel."
The motion in this case is made in behalf of persons belonging
to the class mentioned in this proviso, who allege that their
rights have been sacrificed by the attorney general in making the
agreement to dismiss the appeal. It is overruled on the ground that
their names do not appear in the record as having any interest in
the case or as having been represented by the district attorney in
the name of the United States in the proceedings in the district
court. The statute says that persons in their condition must appear
by the district attorney in the name of the United States. They can
contest the matter in no other way and through no other attorney.
Yet because they did not appear in their own name in violation of
the statute, it is said they have lost a right which they would
have had if they could in some way have procured their names to be
placed on the record as contestants. When the act says that they
can only appear in the name of the United States, I cannot conceive
that this Court or the district court should hold them to have been
guilty of laches because they did not in some manner evade both the
letter and spirit of the law by procuring their own names to be
inserted in the record.
The language of the statute is that "the rights and
interests
Page 68 U. S. 719
of said parties shall be represented by the district attorney."
It is true he may be
aided by other counsel, if the
parties choose to employ them, but they are
represented by
the district attorney. He is their attorney of record, and they
cannot discharge him, or compel him to adopt any other mode of
proceeding than what he deems best. He, adhering to the statute,
makes his objections to the survey in the name of the United
States, and when one of these parties requests him to insert
his name in the proceedings, the attorney refuses. Has
such party any remedy? The law says he
must be represented
by the district attorney, and he has no right to displace him and
substitute another. But because he cannot do this, he is deprived
of the right to be heard here, or in the court below, according to
the opinion of the court in this case.
For myself, if I believed the parties making this motion had any
such right, and were really amount the persons represented by the
district attorney in the court below, I would permit that fact to
be shown here by affidavit, or in any other mode which would
satisfy the court that it was so. And I think the contrary rule
operates as a trap and delusion, by holding that they have an
interest, which gives them a right of appeal, but affords them no
means of rendering that right effectual.
But I do not believe that persons included in the proviso
already quoted have any right of appeal, or any other right of
contesting the survey, except as it may be exercised through the
law officers of the government, subject to their judgment of what
may be their official duty in the premises.
The act divides those who may contest the survey into two
classes: those who claim through or under the United States and
those who do not. All who claim through the United States, whether
by "
preemption, settlement, or any other
right or
title," constitute one class, who must appear by her
attorney and is her name. The words above italicized, expressive of
the nature of the interest derived from the United States, are not
mere synonyms, but are cumulative, and when, in addition to the
several inchoate rights of settlement
Page 68 U. S. 720
and preemption, the word title is used, it must mean a patent,
or some other legal title, emanating from the United States.
Who constitute the other class? They must be those who claim
under rights or grants, more or less perfect, derived from the
Mexican government. This class consists of persons having claims,
confirmed or otherwise, the location of which would interfere with
the survey, which is the subject of contestation.
As to this class of persons, the government has, by its solemn
treaty, bound itself to protect their rights. It is therefore
eminently proper that they should be permitted to assert their
rights in their own name, and by such counsel as they may choose to
employ. The statute gives them this privilege, and if the court
below has found that such persons had an interest in the contest
there, it gives them the additional right of an appeal to this
Court. But as to the other class, who claim through the United
States, it is clear that any right or title which they may have,
must have been acquired subject to the final determination and
location of the Mexican claims existing when this government became
lord of the soil. The government may therefore very well say to
them,
"You knew when you settled, or made preemption, or took a
patent, that all just Mexican claims must be first satisfied, and
you have made your location subject to this risk. The honor of the
United States is concerned to see that no unjust obstacle shall be
interposed by her, or those to whom she has made concessions, to
the proper settlement and location of those claims. If you choose,
therefore, to appear in the name of the United States, and by her
attorney, and make such objections to these surveys as her
officers, uninfluenced by personal motives, may deem just and
proper under the circumstances, you have that privilege, but you
can do it in no other manner, and the right to contest the
proceeding and cease from the contest at any stage of it must
remain to the government, and to this end it shall be conducted in
her name and controlled by her officers."
I think this is the true construction of the statute. I see
Page 68 U. S. 721
no other reason for requiring this class of persons to appear in
the name of the United States, and by her attorney, while persons
of the other class are at liberty to select their own attorney and
appear in their own name.
Besides, it is evident that the framers of the statute did not
regard this right of contesting the survey as one so very sacred,
since the judge of the district court can decide on the right in
his discretion, in court, or in vacation, summarily, and without
appeal.
It is therefore my opinion that it was entirely within the
discretion of the attorney general to dismiss this appeal, if he
thought it right to do so, and that this Court cannot interfere in
his exercise of that discretion, and upon this ground alone, I
place my concurrence in the action of the Court.
