or may have observed in the employees of the treasury of the department. "76. The minutes of the board shall be spread on the proper book, which shall be signed by all the members thereof, and ar authenticated copy transmitted to the supe rior chief of the treasury to enable him to make a report to the supreme government, when the case requires it." By a law of December 7, 1837, it was made the duty of the governors, among other things, "to preside over the boards of sale and of the treasury, with power to defer the resolutions of these latter until, in the first or second session thereafter, the matter under consideration is more carefully examined into." 3 Mex. Laws, 443. under other pretext shall, in any manner, embarrass the proceedings of the board of sale in making the sales, but the right of parties in interest to apply to the supreme government, or to the proper authorities, shall remain intact. "Therefore I order this to be printed, published, and circulated, and demand that it be complied with." 4 Mex. Laws, 114. Lopez certified that it was in virtue of this decree that he had sold the lands in question as belonging to the class of temporalities, and as being of a value not exceeding $500, in which case he assumed that he was authorized to sell irrespective of the board of sales in view of article 73 of the decree of April 17, 1837. The argument is that as that article provided that all purchases and sales exceeding $500 should be made necessarily by the board of sales, therefore all property under that value could be sold by the departmental treasurer alone; but the difficulty Hy article 140 of a decree of June 13, 1843, 1856]it was made the duty of the governor of each department to publish the decrees of the president and cause them to be complied with; and by subdivision 10 of article 142, the governor was made the chief of the pub-is, as pointed out by the court of private lic treasury of the department with general supervision of the same. 4 Mex. Laws, 428. And in passing it may be remarked that there is absolutely nothing in this record to indicate that the governor participated in any way in the act of sale, while the terms of the testimonio clearly show that the departmental treasurer proceeded and assumed to proceed upon his own sole authority. land claims, that even if that provision operated in the manner contended for, it had no application to a sale under the decree of February 10, 1842, which specifically directed that the sales should be made by the board, and contained nothing to suggest that the value of the property affected the power and duty of the board in any way. The decree recognized the existence of the boards of sale as the only proper official organs to accomplish the results desired, and it was this decree that was relied on as justify of the temporalities, then the basis of the sale utterly failed, as the decree applied only to property of that class, and if of the temporalities the sales were to be made by the board. December 16, 1841, the office of the superior chief of the treasury created by the decree of April 17, 1837, was abolished, and it was provided that the departmental treasuring the proceedings. If these lands were not ers should continue for the present to perform the functions of their office as established by the law creating them, and also to perform those of the discontinued chiefs of the treasury, except such as were assigned to the commandants general, who were to be inspectors and visitors of the treasury offices, and to see that the public revenues were well and faithfully collected, administered, and disbursed; and to make timely reports to the supreme government of what they observed, which should be brought to its attention. 4 Mex. Laws, 75. On February 10, 1842, the following decree was issued: In relation to article 73 of the law of 1837, some further observations may be added. The regulations of July 20, 1831, and the law of April 17, 1837, treated of the same subject-matter, and must be read together; and prior laws, so far as not conflicting, were expressly saved from repeal by article 92 of the latter act. *By § 73, the board of sales was necessarily 258 to make sales exceeding $500, but nothing was said as to sales for less than that sum. This would seem to have left the law of 1831 "Antonio Lopez de Santa Ana, etc. "Article 1. The boards of sale in the several departments will proceed to sell, at pub-in force in respect of the making and the conlic auction, to the highest bidder, the properties (fincas) situated therein that pertain to the department of temporalities. "2. No bid will be admitted that does not cover the amount considered to be the value of the property (fincas), computed from the amount of the leases, which shall be considered as the interest thereof, at the rate of five per cent. "3. The bids shall be made for cash, which shall be paid when the sale is approved, less the amount of the burden imposed on each property (fincas), which the buyers shall continue to recognize with a mortgage thereof. "4. No action or claim, which the actual lessors of the property (fincas), in question, [257]may intend to set up for improvements or duct of sales of property having a value below that amount, and whether the board of sales consisted of the membership prescribed by § 73, or was composed in some respects of a different membership, is not material. While these various laws are rather confus ing in their number and minuteness, nothing is clearer than that the power to make sales and grants was vested in the treasury department of the nation and governed by strict rules and regulations, none of which contemplated that any single officer could make the sales. It is enough that the departmental treasurer did not possess the power, acting singly and on his own respon sibility, to conclusively determine to what class lands belonged, and their value, and aving decided these points, thereupon to | tion, the lands of this pueblo and mission exercise the sole power of sale. Tumacacori, Calabazas, and Huebabi are said to have been originally separate and distinct pueblos and missions, of which the two latter were abandoned as early as December, 1806, when the native Indians of Tumacacori and the governor of said Indians presented petitions to the governor and intendente conde to give them title in accordance with the royal instructions of October 15, 1754, and of article 81 of the royal ordinances of December 4, 1786 (alleging the loss or destruction of their old title papers), of the lands embraced in the fundo legal and the estancia of each pueblo and mission, whereupon the grant of 1807 was made. were abandoned, it would seem that they thus became a part of the public domain of the nation, and that as such the only laws applicable to their disposal were the laws of the nation in relation to its vacant public lands, to which the proceedings in this instance do not purport to have conformed or to have been made under them. We concur with the court of private land The titulo refers to some lands acquired by a case in which the sale and grant can be the grant to be made to the pueblo and na tives of Tumacacori, that they may "enjoy the use and freely possess at will and for their NORTHERN PACIFIC RAILROAD COM. PANY et al., Plffs. in Err., 0. PATRICK R. SMITH. (See S. C. Reporter's ed. 260-276.) own benefit in community and individually, and for the decent support of the church of said mission, but under the condition that in no case and in no manner shall they alienate at any time any part of said lands which are adjudicated and assigned to them, since they Grant to railroad company-extent of occu (259 Jare all to be considered as belonging to the Republic and community of natives alone, for their proper use, as well for sowing purposes. The occupation and survey of lands with inas for stockraising and the increased prosperity of the same.' This was in accordance with the general rule that the missionaries and Indians only acquired a usufruct or occupancy at the will of the sovereign. United States v. Cervantes, 18 How. 553 [15: 484]. Prior to 1829, the tribunal of the inquisition had been abolished by the Cortes, and the monastic and other religious orders suppressed, and on the 10th of May of that year it was ordered, through the department of the treasury, that "the property in which consist the funds of the temporalities of the ex-Jesuits and monastics and the rural and urban estates belonging to the inquisition" be sold at public sale to the best and highest bidder. 2 Mex. Laws, 108. May 31, 1829, the commissary general of Mexico published a "list of the urban and rural estates relating to the temporalities of the ex-Jesuits and suppressed monastics with a statement of their values, the burdens they carry, and annual revenue" (Ibid. 117), which did not include the lands in question. The departmental treasurer did not claim, and manifestly did not acquire, the power to sell these lands under the order of May 10, 1829, or the regulations of July 7, 1831, bearing on that subject. By a decree of April 16, 1834 (2 Mex. Laws, 689), the missions of the Republic were secularized, that is to say, converted from sacred to secular uses, and so far as these lands could have been regarded as temporalities, that is, profane property belonging to the or its ecclesiastics, that decree changed their condition. church 2. pation. tent to locate a town site thereon, but with The fact that only 25 feet in width of its [No. 93.] Argued November 4, 5, 1897. Ordered for IN ERROR to the United States Circuit Court of Appeals for the Eighth Circuit to re- NOTE.-A8 to pre-emption rights, see note to That patents for land may be set aside for As to errors in surveys and descriptions in patents for lande; how construed, see note to Watts v. Lindsey, 5: 423. As to land grants to railroads, see note to And, as many years before the sale in ques- 28: 794. missed upon an opinion filed and certain findings of fact, it will be presumed to have been dismissed upon the merits (Loudenback v. Collins, 4 Ohio St. 251); and that such dismissal covered every question put in issue by the pleadings, including the validity of the patent and its use by the defendants. [208] *But if there were any doubt with regard to this point, it would be resolved by an inspection of the opinion of the court (which may be examined for the purposes of identification), as it is published in 20 Court of Claims, 354, wherein it not only appears that the case was considered and disposed of upon the merits, but the court concludes its opinion (p. 370) in the following language: "Upon our construction of the patent in issue the government cartridges do not in fringe the claimant's; but if we are in error as to this, still the claimant cannot recover, as the essential characteristics of his inven tion now found in the government cartridge were developed by officers of the army in 1864. That is, if the relative position of the vents and the wall of the fulminate chamber is a material part of the claimant's patent, the government has not infringed, this feat ure not appearing in its cartridges; but if this position is not material, still the claimant cannot recover, as the other characteristics of his invention, found in the cartridge now used by the defendants, were introduced by them prior to the use of the patent or the filing of the application for it, and even prior to the application of 1865." Whether the reasons given by the court of claims for the dismissal of this petition are correct or not; whether, indeed, this judgment were right or wrong upon the tacts presented, is of no importance here. If such judgment were based upon an erroneous view of the claimant s patent, it was his duty to have promptly taken an appeal to this court, where the whole case would have been reopened and the error of the court of claims. if such there was, would have been rectified. It is insisted by the claimant that in the former action the main contention arose upon the manufacture and use of what was known as the "cup-anvil cartridge," together with a certain reloading cartridge, which had been experimentally manufactured, and that no claims for the "cup-anvil cartridge" or for the reloading cartridge in that suit are in issue in the case at bar. The suit, how ever, was upon the same patent, and it was found by the court of claims to have been upon the same facts, and we think the estop209]pel operates upon everything *which was, if not upon everything which might have been. put in issue in the former case. The presumption is that the issues were the same, and if they were in fact different, it was incumbent upon the claimant to show that the prior case was decided upon questions not involved herein. We have before us only a decision upon the merits, and upon the same state of facts, of a claim identical with this, and we perceive no reason why it should not operate as an estoppel. But there seems to be nothing upon which to base claimant's argument that the issues were not the same. The findings show that the manufacture of the reloading cartridge with the grooved anvil disk, referred to in finding 6, commenced at the Frankfort Arsenal in the month of July, 1879, and that from February, 1879, to March 31, 1883, being the period covered by the first suit, the United States manufactured 3,866,352 reloading cartridges. We see nothing to indicate that these reloading cartridges were manufactured experimentally, or that the issue as to these cartridges was not presented and decided in the former case. The claim in the present suit is also for reloading cartridges. But, even if a somewhat different theory or state of facts were developed upon the trial of the second case, the former judgment would not operate the less as an estoppel, since the patentee cannot bring suit against an infringer upon a certain state of facts, and after a dismissal of his action, bring another suit against the same party upon the same state of facts, and recover upon a different theory. The judgment in the first action is a complete estoppel in favor of the successful party in the subsequent action upon the same state of facts. Walker, Patents, § 468; Dubois v. Philadelphia, W. & B. Railroad Co. 5 Fish. Pat. Cas. 208; David Bradley Mfg. Co. v. Eagle Mfg. Co. 18 U. S. App. 349, 57 Fed. Rep. 989, 6 C. C. A. 661. 2. It only remains to consider, then, whether any proceedings taken in the court of claims since the dismissal of such petition deprived its judgment of its character as an estoppel. A motion for a new trial was made August 14, 1885, but as this motion was overruled in the following December, clearly this would not deprive the judgment of its efficacy as a plea *in bar. Indeed, it may well[210] be doubted whether the pendency of a motion for a new trial would interfere in any way with the operation of the judgment as an es toppel. Harris v. Barnhart, 97 Cal. 546; Chase v. Jefferson, 1 Houst. (Del.) 257; Young v. Brehe, 19 Nev. 379. 3. It further appears that on August 21, 1885, an application for an appeal was filed by the claimant, but as this appeal was never allowed or perfected, and as it does not appear that a transcript of the record was ever filed in this court, it is obvious that the authorities which hold that an appeal perfected to a superior court vacates the judgment of the court below have no application to this except the rear twenty-five feet thereof, has ever been occupied for railroad purposes. "The eighty (80) acre tract, on which these lota were situated, was selected as the location of a portion of this town site, and sur- "In the year 1877 the defendant commenced veyed prior to June 20, 1872. In the year an action in the district court of Burleigh 1872 the attorney of the Lake Superior & county, territory of Dakota (now the state of Puget Sound Land Company-the company North Dakota), in which county the premthat first made this selection-commenced ises next hereinafter described were and are and thereafter continued to sell lots upon this situated, against certain parties, including the town site according to a plat thereof, which plaintiff herein, to recover the possession of was then made, and subsequently, on Febru- part of the premises here in question, which ary 9, 1874, recorded in the office of the portion is particularly described as follows: register of deeds of the county in which the Commencing at the *southeast corner of Main[265] land was situated. By the first of January, and Third streets in the city of Bismarck, the 1873, thirty buildings had been erected on the same being the northwest corner of block town site, and from that time until the eight (8), running thence east along the patent was issued the population of the city south line of said Main street, a distance of and the improvements in it continued to in- fifty (50) feet; thence south, parallel with crease. It was upon the town site thus the east line of said Third street, a distance selected and the plat thus made, which of seventy-five (75) feet to said east line of was afterwards adopte! as the plat and site said Main street, a distance of fifty (50) feet, of the city of Bismarck, that the patent to Mc- to said Third street; thence north, along said Lean was based, and this patent contained no east line of said Third treet, a distance of reservation of any right of way to the North- seventy-five (75) feet to the place of beginern Pacific Railroad Company. ning. Anu such proceedings were duly had in said action in said court (the same being a court of competent jurisdiction of the parties and subject-matter of said action) that the defendant in the action herein (the plaintiff in the action last above referred to) duly recovered in said action a judgment against the defendants in that action including the plaintiff in this action, for the possession of the premises last above described and for nominal damages for the withholding thereof. "The congressional township embracing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof filed in the General Land Office in March, 1873. "That the value of the use and occupation of the premises in question, for six years prior to December 28, 1891, the date of the commencement of the action, is the sum of twenty-six thousand dollars. "From the foregoing facts I find, as conclusions of law, that the plaintin is entitled to the possession of the premises above described, and to recover from the defendant the sum of twenty-six thousand dollars with interest thereon from the 28th day of December, A. D. 1891, at the rate of seven per cent per annum, and his costs and disbursements." "On February 21, 1872 the Northern Pacific [264]Railroad Company filed in the Department of the Interior the map of its general route east of the Missouri river. This route passed about three quarters of a mile south of this eighty-acre tract. On May 26, 1873, it filed with the Secretary of the Interior, in the office of the Commissioner of the General Land Office, and he accepted, its map fixing the definite location of its line. The Interior Department thereupon designated such line upon its record maps for its use, and copies of such record maps were forwarded to and remain on file in the office of the register and receiver of the land office at Bismarck, having jurisdiction of that part of the public domain embracing the premises in question. The line thus fixed passed about two miles south of this eighty-acre tract. During the year 1872 grading was done by the company on this line extending in a continuous line from its grading east of the township in which this tract was located to a point onequarter of a mile west of the west line of this eighty-acre tract extended south to its intersection with the grading. During the year 1872 there was a line staked out across this tract substantially where the railroad is now constructed, but no grading was done on By the second section of the act of July 2, this line until the spring of 1873. In the year 1864, creating the Northern Pacific Railroad 1873 the railroad was constructed across this Company, there was granted to that com-[266] tract and has since remained and been oper- pany, its successors and assigns, the right of ated upon it. The grading on its line of way through the public lands to the extent definite location two miles south was of 200 feet in width on each side of said railabandoned. The lots in question are within road where it may pass through the public two hundred feet of the main track of this domain. Mr. C. W. Bunn for plaintiff in error on both arguments. Mr. C. W. Holcomb filed a supplemental brief for plaintiff in error by leave of the court. Mr. Hiram F. Stevens for defendant in error on both arguments. Mr. Justice Shiras delivered the opinion of the court: railroad as actually constructed and more During the year 1872 there was a line than two miles from its line of definite loca- staked out across the tract, a portion of tion as shown on its map filed to definitely fix which is in dispute in this case, substantially this line, and have been occupied by the de- where the railroad is now constructed, but fendant, through its tenants, during the no grading was done on this line until the period in question; but no part of the same, spring of 1873. In the latter year the rail lowing communication addressed to the collector of customs at New York: Mr. Justice Brown delivered the opinion of the court: The single question presented for our conTreasury Department, July 31, 1889. sideration in this case is whether the boxes Sir: Referring to department letter of or cases exported by the petitioner were March 2, 1885, addressed to the then collect-"wholly manufactured" in the United States or at your port, in which a rate of drawback within the meaning of the section hereinafter was established on shooks used in the manu- cited. facture of boxes, you are informed that the department has recently given the matter further consideration, and it appears upon investigation that the boxes are made complete in Canada, with the exception of nailing, and that the only manufacture which they receive in this country consists in their thus being nailed together, which part of the labor is omitted to be done in Canada merely for the convenience in shipping to the United States. The boxes appear to have been manufactured complete abroad, and in the condition imported resemble the finished furniture imported in pieces which the department has heretofore held to be dutiable at the rate applicable to finished furniture. (See Synopsis, 4272.) The facts were, in substance, that the claimant imported from Canada in 1889 and 1890 box shooks, and from Europe steel rods, upon which duties were paid to the amount of $39,636.20 under the tariff act of March 3, 1883 (22 Stat. at L. 488, 502, chap. 121), which levied a duty of 30 per cent upon "casks and *barrels, empty, sugar-box shooks, and[215] packing boxes, and packing-box shooks, of wood, not specially enumerated or provided for in this act." The box shooks so imported were manufactured in Canada from boards, which were planed and cut into the required lengths and widths for making into boxes without further labor than nailing them together. They were then tied up into bundles of sides, ends, bottoms, and tops, of from fifteen to twenty-five in a bundle, for convenience in handling and shipping. After importation, they were made up into boxes or cases, by nailing the proper parts together with The simple act of nailing them together is not, in the opinion of the department, a manufacture within the meaning of § 3019, Revised Statutes, and the authority to al-nails manufactured in the United States out low drawback thereon is hereby revoked. You will accordingly receive no further entries for drawback in such cases. Respectfully yours, George C. Tichnor, Collector of Customs, New York. [214] *7. The Treasury regulations of 1884 referred to in finding 5, viz., articles 966, 967, and 968, are as follows: when defective in length or width, to make of the imported steel rods, and by trimming, the boxes or cases without projecting parts. The ends and sides of the boxes were nailed together by nailing machines, and the sides trimmed off even with the ends by saws. Then bottoms were nailed on and trimmed in the same manner. After being filled, the tops were nailed on, and the boxes made ready for exportation. The cost of the labor ex "Art. 966. On articles wholly manufac-pended in the United States in the nailing, tured of imported materials on which duties have been paid, a drawback is to be allowed on exportation, equal in amount to the duty paid on such imported materials, less 10 per cent thereof, except on exportations of refined sugars, in which case the legal retention is 1 per cent. "Art. 967. The entry in such cases will be as follows, and must be filed with the collect about one tenth of the value of the boxes. handling, and trimming of the boxes was The principal part of the labor in trimming the boxes was occasioned by the Canadian manufacturer not cutting the shooks into the required lengths and widths for making the boxes, the cost of which trimming the claimant sometimes charged to the Canadian man ufacturer. or at least six hours before putting or lad-claim for duties paid as above upon the Upon this state of facts petitioner made ing any of the merchandise on board the vessel or other conveyance for exportation." Here follows a form of entry for exportation with oaths of exporter and of the pro prietor and foreman of manufactory. Upon the foregoing findings the court found the ultimate fact, so far as it was a question of fact, that the boxes or cases so exported were not manufactured in the United States, and, as a conclusion of law, that the claimant was not entitled to recover; and the petition was dismissed. Whereupon petitioner appealed to this court. Mr. Edwin B. Smith for appellant. Messrs. Henry M. Hoyt, Assistant Attorney General, and Felix Brannigan, for appellee. shooks, under Rev. Stat. § 3019, which reads as follows: wholly manufactured of materials imported on which duties have been paid when exported, a drawback equal in amount to the duty paid on such materials, and no more, to be ascertained under such regulations as shall be prescribed by the Secretary of the Treasury. Ten per centum on the amount of all drawbacks so allowed shall, however, be retained for the use of the United States by the collectors paying such drawbacks respectively." "There shall be allowed on all articles The question arises whether the boxes in question were*"wholly manufactured" within[216) the United States of "materials imported" from abroad. The section above quoted uses the words "wholly manufactured of materials imported," but we understand it to be con |