with the contracts upon the entry of new col- cree the following provisional law for the pur-
onists, and to examine as to how far those chase of the lands of the state." Subsequent
already entered into have been complied with. legislation of the state is in the same line.
"4. The executive shall have the power to Further, §§ 8 and 9 of article 161 of the
take the lands he may consider suitable for national Constitution of 1824 made it the
fortifications and arsenals, and for new col-duty of each Mexican state:
onies, and shall give the states credit for their "To present annually to each one of the
value on the accounts they owe the federa-houses of the general congress a minute and
tion." Reynolds, p. 148.

comprehensive report of the amounts that
are received and paid out at the treasuries
within their limits, together with a statement
of the origin of the one and the other, and
touching the different branches of agricul-
ture, commercial and manufacturing indus-
tries," etc.

And also,

"To forward to the two chambers (of the federal government) and when they are in recess, to the council of the government, a certified copy of their constitutions, laws, and decrees."

The language of this decree is very signifi-
cant, and clearly recognizes some title in the
states, for why should commissioners be au-
thorized to contract with the legislatures of
the states for the purchase of lands which be-
longed to the nation? It also clearly recog-
nizes the right of the states to sell these va-
cant lands and apply the proceeds in settle-
ment of the demands made against them by
the general apportionment of the revenue law
of 1824. It declares that the executive may
take the lands he considers suitable for forti-
fications, arsenals, and for new colonies, and
at the same time provides that he shall give
the states credit on the amount they owe the
confederation. But why should any credit
be given if these lands so taken by the ex-
ecutive where the property of the nation, and
the states without authority to sell them or
receive the proceeds of sales? If during
all these years the lands were the property of
the nation, were to be held and sold only by
the nation, and the proceeds thereof to be ac-
counted for directly to the nation, why should "In the first place, we observe that the law
it be decreed that if the nation takes any part has received the implied sanction of congress.
of them for arsenals and other public pur- It was adopted in 1859. It has been upon
poses, credit for the value thereof is to be en- the statute book for more than twelve years.
tered upon the amounts due by the states to It must have been transmitted to congress
the nation? We find it difficult to escape the soon after it was enacted, for it was the duty
force of this decree of 1830. It indicates that of the secretary of the territory to transmit
although the language of the revenue decree to that body copies of all laws, on or before
of 1824 is indefinite, and does not in terms the first of the next December in each year.
name vacant public lands, yet both the nation The simple disapproval by congress at any
and the states understood that its effect was time would have annulled it. It is no un-
to grant authority to the states to sell such reasonable inference, therefore, that it was
lands and appropriate the proceeds in settle-approved by that body."
ment of the amounts charged against them
[286]by the nation. We see no other way in which
to give reasonable force to the language of
this decree of 1830, and it must be held to be
a national interpretation of the revenue de-

It may be assumed that these require-
ments of the national Constitution were com-
plied with, and that the constitutions, laws
and decrees of the state and the proceedings
had in reference to these several sales of land
were reported to the congress of the nation.
We find no act of that congress setting aside
*such legislation or sales. This is significant,[287]
and it is not inappropriate to refer to Clinton
v. Englebrecht, 13 Wall. 434, 446 [20:659,
662], in which it was said:


cree of 1824.

We are not insensible of the fact that the provisions of the act of September 21, 1824, creating the office of commissary general, an act which we had occasion to consider in Ely's Administrator v. United States, 171 U. S. 220 [ante, 142] seem to make against the But we are not limited to this authoritative idea of the administration of vacant lands by national exposition of the meaning of the rev- the states, and it is difficult to work out from enue law of 1824. The testimony in the sev-all the statutes a consistent, continuous, and eral cases of a similar nature now before us, harmonious rule. We must in each case enincluding therein the reports of the officers deavor to ascertain what the Mexican gov. of this government sent to examine the ernment recognized as valid, and when that archives of Mexico, discloses that the state is done the duty of respecting and enforcing of Sonora at least assumed that the revenue the grant arises. Other matters are referred act of 1824 authorized its disposal of the va- to by counsel in their briefs, but it would cant public lands, and acting on that as-needlessly prolong this opinion to refer to sumption did in a multitude of cases make them. Our conclusion is that at the time of sales thereof. In this connection it may be observed that the Constitution of the state of Sonora, or State of the West, declares, article 47, that the right of selling lands belongs to the state. This Constitution bears date May 11, 1825. Law No. 30 of that state, of May 20, 1825, the law referred to by the treasurer general in the expediente, recites that "the congress has seen fit to de

these transactions the several states had authority to make sales of vacant public lands within their limits, and that such sales, unless annulled by the national government, must be considered as grants to be recognized by this government under the terms of the treaty of 1853.

We pass, therefore, to a consideration of the effect of the decrees of Santa Anna. The

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tances, and courses and distances control
quantity, but where there is uncertainty in
specific description, the quantity named may
be of decisive weight, and necessarily so if
the intention to convey only so much and no
more is plain."

same time, that, continuing the measurement
along the cañon (because it was impossible to
go in any other direction on account of the
roughness of the ground), by reason of the
many turns that had to be made, so many
cords should be deducted from the total
number measured as would be calculated to
result in excess of the *real length measured,[236]
taken on a straight line, and considering
his demand reasonable I ordered the con-
tinuation of the survey as follows, to wit.

We think this case comes within the rule thus stated. The defendant in his answer alleges that the grant comprises 12,147.69 acres, while counsel for the government say that the measurements given by the surveyor make the area 22,925.87 acres. The amount of land appraised, advertised, sold and auc"And in view of the suggestion made by tioned off was one and three quarter sitios the claimant to reduce the number of cords (7,591.61 acres). While, of course, any slight actually measured so much as might be caldiscrepancy between the area of the survey culated to be in fact in excess of the true and that ostensibly sold might be ignored, measurement by reason of the many turns of yet the difference between the amount which the cañon over which the survey was made, as was understood to have been sold and the it could not be carried on straight, I apamount now found to be within the limits of pointed for that purpose Lieutenant Don the survey is so great as to suggest the pro- Manuel Leon and the citizen Don Jose Ma. priety of the application of the rule laid down Sotelo who were unanimously of the opinion in Ainsa v. United States, supra. There can to deduct twenty-five cords out of the three be no doubt from the record of the proceed- hundred and twelve cords measured in the ings that one and three quarter sitios was all last survey down the cañon, the claimant conthat the purchaser supposed he had pur-senting thereto as just; the survey was cal[35]chased, all that the intendant supposed he culated to be two hundred and eighty cords, had sold, and all that was advertised or paid with which this survey was finished, resultfor. The original petition, after stating that ing from it one sitio and three fourths of anthere was a place known as San Jose de other sitio, registered by Don Leon Herreros Sonoita, declared that the petitioner for raising stock and for farming purposes." registered "in the aforesaid place two sitios The appraisers reported as follows: of land," which he desired to have surveyed, and to pay therefor the just price at which it might be valued. The petition therefore was not for any tract known by a given name, but for a certain amount of land in such place. The report of the survey is very suggestive. We quote from it as folbows:

"In virtue thereof they said that according to and because of the examination they had made and being aware of the existing regulations on the subject, the price should be fixed at, and they fixed it at, sixty dollars for each sitio, because they have running water and several banks of arable land which can be made use of by cultivation."

"In the ancient abandoned place of San The direction for the almoneda or offer of
Jose de Sonoita, on the 26th day of the month sale was of the lands "composed of one sitio
of June, 1821, I, the said lieutenant com- and three fourths of another." The first al-
mander and subdelegate of the military post moneda was of lands "comprising one sitio
and company of Tubac and its jurisdiction, in and three fourths of another.
order to make the survey of the land de- appraised in the sum of one hundred and five
nounced by Don Leon Herreros of this dollars, at the rate of sixty dollars per sitio."
vicinity, delivered to the appointed officials The property put up for sale was lands "com-
a well twisted and stretched cord, and in my prising one sitio and three fourths of another,
presence was delivered to them a castilian
appraised at one hundred and five
vara, on which cord were measured and dollars, at the rate of sixty dollars each
counted fifty regulation varas, and this be- sitio." The report of the promoter fiscal
ing done, at each were tied poles, and stand-opens with this statement:

ing on the spot assigned by the claimant as "The promoter fiscal of this treasury has
the center, which was in the very walls of the examined carefully the expediente of the
already mentioned Sonoita, there were lands surveyed in favor of Don Leon Her-
measured in a northeasterly direction sixty-reros, resident of the military post of Tubac,
three cords, which ended at the foot of some by the Commissioner Don Elias Ygnacio
low hills, a little ahead of a spring-a chain Gonzales, lieutenant *commander of the[237]
of mountains of a valley which goes on and post, in the place called San Jose de Sonoita,
turns to the east, where was placed a heap in that jurisdiction, from which resulted one
of stones as a monument; and being about sitio and three fourths of another, for raising
to return to the center, the claimant ex-stock and horses, valued at sixty dollars each
pressed a desire that the survey should be sitio, which sums up one hundred and five
continued down the cañon until the two sitios dollars, as it has running water and some
should be completed, that on each side we pieces of land fit for cultivation."
should survey to him only twenty-five cords,
because if the survey should extend further,
by reason of the broken-up condition of the
country and the rocky hills in sight, such
land would be useless to him, saying, at the

Subsequently to this report the direction was made for three public auctions, which were made, and the record of the first auction, the others being similar, is in these words:

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determination of rights created during peace- for. The decree of the Court of Private Land ful and regular eras. The devestiture of Claims will be reversed, and the case remandtitles once legally vested is a judicial act. ed for further proceedings.



In governments subject to ordinary constitutional limitations a mere executive declaration disturbs no rights that have been vested, and simply presents in any given case to the judicial department the inquiry whether the rights claimed to have been UNITED vested were legally so vested. Undoubtedly this government dealing with Mexico, and finding Santa Anna in control, rightfully dealt with him in a political way in the negotiation of a treaty and the purchase of territory, and the judicial department of this government must recognize the action of its executive and political department as controlling. But when the courts are called upon to inquire as to personal rights existing Argued March 16, 17, 1898. Decided May in the ceded territory, a mere declaration by the temporary executive cannot be deemed absolutely and finally controlling. It is unAPPEAL from a decree of the Court of 191necessary to rest this case upon the fact dis- Private Land Claime decreeing that the closed that these decrees of Santa Anna were claim of the plaintiff, Robert Perrin, to a immediately thereafter revoked. It is not tract of land formerly in the state of Sonora significant that the substance of them was in the Republic of Mexico, but now in the thereafter re-established. We are compelled territory of Arizona, known and designated to inquire whether prior to such decree there as the Rancho San Ygnacio del Babocomari, were rights vested, rights which the Mexican described in his petition, is invalid, and disgovernment recognized, and then determine missing the petition. Reserved, and case rewhether those rights were by such decree ab-manded for further proceedings.

STATES, Crittenden
Cattle Company, et al.
(See S. C. Reporter's ed. 292.)

Land &

Camou v. United States, 171 U. S. 277 [ante,
163], followed.
[No. 30.]

solutely destroyed.

31, 1898.

The facts are stated in the opinion.

Messrs. Byron Waters, John T. Mor gan, and J. H. Meredith for appellant. Messrs. Matthew G. Reynolds and John K. Richards, Solicitor General, for appellee. Mr. Justice Brewer delivered the opinion of the court:

Turning to the decree of November 25, 1853, the first and second articles are mere declarations of law. The third article directs the officials to proceed to the execution of the decree and to recover and take possession of the lands coming within the scope of the prior articles. It does not appear that any steps were taken by any officials to carry into execution this decree. Whether this So far as the question of title is concerned particular grant came within the scope of the this case is similar to the one immediately two declarations of law was a question to be preceding. (Camouv. United States, 171 U. Š. considered and determined. On that ques- 277 [ante, 163]). For reasons therein stated tion the grantee never was heard. There the decree of the court of private land claims never was a judicial adjudication that his will be reversed, and the case remanded for grant came within the scope of the first two further proceedings. It is true, as suggested articles. He was never dispossessed. His in its opinion, the court of private land property was never taken possession of. It is going too far to hold that the mere declaration of a rule of law made by a temporary dictaor, never enforced as against an individual grantee in possession of lands, is to be regarded as operative and determinative of the latter's rights.

As for the reasons heretofore mentioned we are of opinion that a valid grant was made in this case, we think this arbitrary declaration by a temporary dictator was not potent to destroy the title. The decree of the court of private land claims must therefore be reversed. As shown by the statement of facts the survey of the land claimed in the petition is in excess of the four sitios granted and paid for. While the excess is not so great as in many cases, yet we think the rule laid down in Ely's Administrator v. United States, 171 U. S. 220 [ante, 142] should control, and that this government discharges its full duty under the treaty when it recognizes a grant as valid to the amount of land paid

claims thought that there was no sufficient location of the tract in controversy, and that probably the grant was void for uncertainty in the description of the property. It may be that this conclusion was right. At the same time, in view of what has been recently said by this court in respect to boundaries, description and area, we think that justice requires that we reverse the judgment and remand the case for further proceedings. Perhaps the claimants may be able to satisfactorily identify a tract not larger than the area purchased and paid for which should equitably be recognized as the tract granted.


of a grant to any area of greater extent than | If the outboundaries disclose a square or any was recognized by the government of Mex-rectangular figure, the excess of area suggests ico. If that government had a right, as we simply a carelessness of measurement, and [240]have seen in Ainsa v. United States it had, can be corrected by a proportionate reducto compel payment for an overplus or resell tion in each direction. In other cases, the such overplus to a third party, then this gov- location of the waterway, the configuration ernment is under no moral or legal obliga- of the ground, may be such as to enable a tions to consider such overplus as granted, court of equity by its commissioner or masbut may justly and equitably treat the grant ter to determine exactly what was intended as limited to the area purchased and paid to pass under the grant. We do not mean to for. anticipate all the questions that may arise. We simply hold that the mere fact that the grant is narrower than the limits of the outboundaries does not prevent the court of private land claims from determining through the aid of a commissioner, surveyor, or master exactly what equitably did pass under the grant. It is enough for this case to hold that the powers of the court of private land claims are not narrow and restricted, and that, when it finds that there is a valid grant for a certain number of acres within the outboundaries of a larger tract, it may inquire, and, if it finds sufficient reasons for determining the true boundaries of the tract inat was granted, it can so prescribe them, and sustain the claim to that extent, re.erring to the land department the final and absolute surIt is also undoubtedly true, as disclosed in veys thereof. In view of these considerathat case, that where there is a mere grant tions, we are of opinion that this grant should of a certain number of acres within specified be sustained to the amount of one and threeoutboundaries there may be such indefinite-fourths sitios, and the judgment of the Court ness as to prevent a court from declaring the of Private Land Claims is reversed, and the true location of the granted lands. And yet case remanded to that tribunal, with direcit is also true that there may be disclosed by tions to examine and decide whether there be the survey or other proceedings that which suflicient facts to enable it to determine the will enable a court of equity to determine true boundaries of the one and three fourths with reasonable certainty what lands were sitios. intended to be granted and the title to which should be established. It must be remembered in this connection that by § 7 of the act creating the court of private land claims, it is provided "that all proceedings subsequent to the filing of said petition shall be conducted as near as may be according to the practice of the courts of equity of the United States." Therefore in an investigation of this kind that court is not limited to the dry, technical rules of a court of law, but may inquire and establish that which equitably was the land granted by the government of Mexico. It was doubtless the purpose of Congress, by this enactment, to provide a tribunal which should examine all claims and titles, and that should, so far as was practicable in conformance with equitable rules, finally settle and determine the rights of all claim[241]ants. *It will be unnecessarily limiting its

It may be said that to consider the tract granted as one not extending to the limits of the outboundaries of the survey is to hold that the tract granted was not located, and therefore, within the terms of the Gadsden treaty, not to be recognized by this government, as suggested in Ainsa v. United States. In that case it appeared that while the outboundaries of the survey extended into the territory ceded by Mexico to the United States, the grantee had taken and was in possession of land still remaining within the limits of Mexico, to the full extent which he had purchased and paid for, and therefore no legal or equitable claim existed against the United States in reference to land within the ceded territory.




31, 1898.

powers to hold that it can act only when the Argued March 15, 16, 1898.
grant to the full outboundaries of the survey
is valid, and is powerless when a tract within
those outboundaries was granted. Many
things may exist by which the real tract grant
ed can be established. In the case before us,if
it be possible to locate the central point from
which according to the report the survey was
made (and we judge from the testimony that
it is possible) the actual grant can be estab-proceedings.
lished by reducing each measurement there- The facts are stated in the opinion.
from to such an extent as to make the area NOTE. AS to Missouri private land claims,
that of the tract purchased and paid for. see note to Les Bois v. Bramell, 11: 1051.

FREDERICK MAISH and Thomas Driscoll,
Partners as Maish & Driscoll.

(See S. C. Reporter's ed. 242, 243.),

Extent of Mexican grant.

A Mexican grant should not be sustained by the court of private land claims for pore than the amount purchased, petitioned, and paid for, when all the proceedings contemplated a sale of that quantity only.

[No. 297.]

Decided May

APPEAL from a decree of the Court of Private Land Claims confirming the title of the petitioners, Frederick Maish et al., to a tract of land in the county of Pima, and territory of Arizona, under a Mexican grant. Reversed, and case remanded for further

Messrs. Matthew G. Reynolds and charges. Nothing seems to have been done John K. Richards, Solicitor General, for ap-on this purchase until 1849, when title paper pellant. were issued by the substitute treasurer gen

eral of the state of Sonora.

Mr. Rochester Ford for appellees.
Mr. George Lines filed a brief for the Sopori
Land & Mining Company.

Mr. Justice Brewer delivered the opinion

of the court:

Without repeating the discussion contained in the foregoing opinion, we think that the grant should be sustained for the four sitios purchased, petitioned and paid for, and for no more. As the grant was confirmed in toto we are compelled to order that the decree of the Court of Private Land Claims be reversed, and the case remanded to the court for further proceedings.

This case resembles that of Ainsa v. United States just decided, 171 U. S. 220 [ante, 142]. The proceedings for the sale were had in 1820 and 1821 and before the same intendant. We deem it unnecessary to add anything to what was stated in that opinion as to the law controlling. It is sufficient to say that while the claim now made is for 46,696.2 acres, WILLIAM FAXON, Jr., Trustee, et al [244] the application for purchase was for four sitios (17, 353.84 acres). All the proceedings contemplated a sale of only that amount of UNITED STATES and George W. Atkinson land. Thus the appraisers staid that "from their examination they said that each sitio should be valued at thirty dollars, taking into consideration that none of them had running water or natural standing water, but that water facilities might be obtained by means of a well." The first of the three final auctions was reported in these words:

et al.


"In the city of Arizpe, on the 13th day of December, 1821, there met as a board of auction the provisional intendant, as president, and the other members that compose it, to hold the first auction of the lands to which these proceedings refer, and they caused the people to be assembled at this office by the [243]*beating of the drum, and many persons gathered at the office of the intendant, when the auctioneer, Loreto Salcido, in their presence was ordered to ask for a bid, which he did in a loud and clear voice, saying: 'Here before this board of the treasury are being sold four sitios of public land for the raising of cattle situated at the place called San Ygnacio de la Canoa,within the jurisdiction of the military post of Tubac, surveyed in favor of Tomas and Ygnacio Ortiz, residents of that same town, and appraised in the sum of one hundred and twenty dollars, being at the rate of thirty dollars for each sitio, it being necessary to dig a well to make the land Argued March 18, 1898. useful. Whosoever wishes to make a bid upon this land, let him come forward and do so in the manner established by law before this board, where his bid will be heard, notice being given that the Rev. Father Fray Juan Bano, minister of the mission of San Xavier del Bac, in the name of Ygnacio Sanches and Francisco Flores, resident citizens of the same town, had bid for said land the amount of two hundred and ten dollars; and with the understanding that on the third auction, which is to take place on the day after tomorrow, the sale shall be settled upon the highest bidder.' As no bidder appeared, the board adjourned, and the minutes were signed by the president and members of this board." At the third auction a bid of $250 was made, and on that bid the property was struck off to Tomas and Ygnacio Ortiz, who subsequently paid into the treasury the full amount of the purchase price with all



(See S. C. Reporter's ed. 244–260.)

Court of private land claims-power of treas
urer of Sonora to grant Mexican lands-
pueblo and mission lands.

In order to the confirmation of any claim,

the court of private land claims must be satisfied of the regularity in form of the proceedings, and that the official body or person mak ing the grant was vested with authority, or that the exercise of power, if unwarranted, was subsequently lawfully ratified.


The treasurer of the department of Sonora did not in 1844 have the power to determine by his sole authority that abandoned pueblo and mission lands belonged to the class of the temporalities, and that their value was not over $500, and to sell and grant them independently of other officials.

[No. 119.]


3. Pueblo and mission lands in Mexico when abandoned seem to have become, under the laws existing in 1844, a part of the public domain of the nation, to the disposal of which only the laws of the nation applied, and which could not be granted by the treasurer of a department.

Decided May 31,

APPEAL from a decree of the Court of

Private Land Claims, rejecting the claim of William Faxon, Jr., trustee, for the confirmation of his title to land known as the Tumacacori, Calabazas, and Huebabi grant, situated in the valley of the Santa Cruz river, Pima county, Arizona. Affirmed.

Statement by Mr. Chief Justice Fuller: Three separate petitions were filed in the court of private land claims for the confirmation of what was commonly called and known as the Tumacacori, Calabazas, and Huebabi grant, situated in the valley of the Santa Cruz river, Pima county, Arizona, the petitioners in each claiming under the original grantee. The causes were consolidated

NOTE. As to Missouri private land claims, see note to Les Bois v. Bramell, 11: 1051.

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