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lands. The presumption which might obtain in other places from the inaction of the government, the failure of any individual to assert a claim to the overplus, is in respect to the lands in this territory of no significance. Who there would care to question the right of a locator along a waterway to any overplus of arid lands? Such overplus was of no value, and no third party would ever care to challenge the locator's right to this overplus, and the government, like the individual, was also indifferent. So the silence and inaction of the government and third parties are not strange, and create no presumption in favor of the validity of the grant to the extent of the survey.

"1st auction. At the city of Arizpe, on the | was made of the overplus is not important. 8th day of the month of November, 1821, The government was indifferent. Its rights there convened as a board of auction the in- could be enforced at its leisure, and no inditendente as president and the members com-vidual cared to purchase any surplus of arid posing the board, in order to make the first auction of the lands referred to in this expediente. They caused many persons to collect by the beating of drums at the office of the intendencia, and in their presence they made the crier, Loreto Salcido, announce, as he did in a loud and clear voice, saying: 'There is to be auctioned at this board of auction one sitio and three fourths of another of public lands, for raising cattle, comprised in the place of San Jose de Sonoita, in the jurisdiction of the military post of Tubac, surveyed in favor of Don Leon Herreros, resident of the same, and appraised in the sum of one hundred and five dollars, at the rate of sixty dollars per sitio; whoever wants to make a bid on it, let him do so before this board, which will admit it if done properly; with the understanding that at the third and last auction, which will take place the day after to-morrow, the property will be sold to the highest bidder.'

Sustaining the validity of the grant to the extent of the land paid for is but carrying[239] out the spirit of the treaty, the obligation of international justice and the duties in posed by the act creating the court of privuce land claims. Article 8 of the treaty of The payment was, as appears from the Guadalupe Hidalgo provided in reference to entry in the treasury office, heretofore the ceded territory that "Mexicans now esquoted, of "one hundred and five dollars as tablished in territories previously belonging the principal value for which was auctioned to Mexico, and which remain for the future by this intendencia one sitio and three within the limits of the United States, as dequarters of another of lands for raising cattle, fined by the present treaty, shall be free to contained in the place of San Jose de Son-continue where they now reside, or to reoita." So, notwithstanding the fact that as move at any time to the Mexican Republic, shown by the report of the surveyors, a sur-retaining the property which they possess in vey was made, all the proceedings from the commencement to the close contemplated, not the purchase of a given tract of land, but a certain amount of land in the place of San Jose de Sonoita. Every consideration of [238]equity, therefore, demands that the title of the purchaser should be confined to the one and three fourths sitios for which he paid.

the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever," and that “in the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected" (9 Stat. at L. 929); and As indicated in Ainsa v. United States, these stipulations were reaffirmed in article supra, too much stress cannot be laid on the 5 of the Gadsden Treaty (10 Stat. at L. 1035). technical rules of the common law in refer- Article 6 of that treaty, which placed a limence to the dominance of courses and dis- itation, provided "that no grants of land tances over area. It is a matter of common within the territory ceded will be knowledge that in this part of the country considered valid or be recognized by the large areas beyond the immediate reach of United States, or will any grants made prewater courses or springs were arid; that pur-viously be respected or be considered as obchases were of lands so watered or so sus-ligatory, which have not been located and ceptible of watering that crops could be expected therefrom, or pasturage furnished for stock. The land beyond the reach of these water supplies was deemed of little value, and hence slight attention was paid to it. Every purchase therefore must be considered as dominated by this important and single fact. Rude methods of measurement were resorted to. As shown in the report of the survey in this case mere estimates were relied upon. Doubtless this carelessness was partly owing to the fact disclosed in Ainsa v. United States, that any overplus above the actual amount paid for still remained the property of the government, payment for which could be compelled of the locator, or, on his failure to make such payment, could be appropriated by any third party desiring to purchase. The fact that during these years no challenge

duly recorded in the archives of Mexico." But this limitation is not to be understood as denying the obligations imposed by the rules of international law in the case of cession of territory, but simply as defining specifically the evidences of title which are to be recognized. The spirit of the treaty is fully carried out when the amount of land petitioned and paid for is secured to the grantee or his successors in interest. This government promised to inviolably respect the property of Mexicans. That means the property as it then was, and does not imply any addition to it. The cession did not increase rights. That which was beyond challenge before remained so after. That which was subject to challenge before did not become a vested right after. No duty rests on this government to recognize the validity

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. It may be said that to consider the tract We simply hold that the mere fact that the granted as one not extending to the limits of grant is narrower than the limits of the outthe outboundaries of the survey is to hold boundaries does not prevent the court of prithat the tract granted was not located, and vate land claims from determining through therefore, within the terms of the Gadsden the aid of a commissioner, surveyor, or mastreaty, not to be recognized by this govern- ter exactly what equitably did pass under the ment, as suggested in Ainsa v. United States. grant. It is enough for this case to hold In that case it appeared that while the out-that the powers of the court of private land boundaries of the survey extended into the claims are not narrow and restricted, and territory ceded by Mexico to the United that, when it finds that there is a valid grant States, the grantee had taken and was in for a certain number of acres within the outpossession of land still remaining within the boundaries of a larger tract, it may inquire, limits of Mexico, to the full extent which he and, if it finds sufficient reasons for determinhad purchased and paid for, and therefore no ing the true boundaries of the tract inat was legal or equitable claim existed against the granted, it can so prescribe them, and susUnited States in reference to land within the tain the claim to that extent, re.crring to the ceded territory. 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 true location of the granted lands. And yet it is also true that there may be disclosed by the survey or other proceedings that which will enable a court of equity to determine with reasonable certainty what lands were 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 establisn 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

of Private Land Claims is reversed, and the case remanded to that tribunal, with directions to examine and decide whether there be suflicient facts to enable it to determine the true boundaries of the one and three fourths sitios.

UNITED STATES, Appt.,

2'.

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.]

31, 1898.

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

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.

[242]

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 papers pellant.

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:

were issued by the substitute treasurer general of the state of Sonora.

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

Appts.,

v.

et al.

contemplated a sale of only that amount of UNITED STATES and George W. Atkinson land. Thus the appraisers stad that "from their examination they said that each sitio should be valued at thirty dollars, taking into consideration that none of them had run

ning 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:

(See S. C. Reporter's ed. 244-260.)

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

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2.

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 1841 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.

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.

[No. 119.]

Decided May 31,

"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 3. 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, Statement by Mr. Chief Justice Fuller: Three separate petitions were filed in the which is to take place on the day after tomorrow, the sale shall be settled upon the court of private land claims for the confirhighest bidder.' As no bidder appeared, the mation of what was commonly called and board adjourned, and the minutes were signed known as the Tumacacori, Calabazas, and by the president and members of this board." Huebabi grant, situated in the valley of the At the third auction a bid of $250 was Santa Cruz river, Pima county, Arizona, the made, and on that bid the property was petitioners in each claiming under the origistruck off to Tomas and Ygnacio Ortiz, who nal grantee. The causes were consolidated subsequently paid into the treasury the full NOTE. As to Missouri private land claims, amount of the purchase price with all see note to Les Bois v. Bramell, 11: 1051.

1898.

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.

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and tried under the petition of William | dependencies; that the alleged grant was ever Faxon, Jr., trustee, and others. The located and recorded as provided by the sixth petition alleged that the claimants were article of the treaty of Mesilla (Gadsden purthe owners in fee of the tract of land in chase); that the original grantee or grantees question under and by virtue of a certain were ever owners of the property as against instrument in writing, dated April 19, 1844, the Republic of Mexico, or are now the own"made and executed by the treasury depart-ers thereof as against the United States or ment of Sonora in compliance with the law its grantees; that the grantee Aguilar, in of the Mexican Congress of the 10th of Feb- the year 1844, went into actual possession ruary, 1842, providing for the denouncement and occupation of the grant, and erected and sale of abandoned pueblos," running to monuments thereon, or that he and his repreDon Francisco Alejo Aguilar, to whom said sentatives have continued ever since in the treasury department sold the tract April 18, actual possession, use, and occupation of the 1844, for the sum of $500. That in the year 1806, the governor of the The answer averred that the proceedings 245]Indian pueblo of Tumacacori petitioned Don for sale were never taken under the express Alejo Garcia Conde, intendente of the prov-order or approval of the general government, ince, etc., etc., to issue to the Indians of the pueblo a grant of lands for the "fundo legal" and also for the "estancia" of the pueblo to replace ancient title papers which had been lost or destroyed; that in accordance with that petition the lands mentioned were ordered to be surveyed, which was done, and the boundary monuments established, by Don Manuel de Leon, commandante of the presidio of Tubac; that on April 2, 1807, the said intendant Conde is sued a royal patent or title to the Indians of the pueblo of Tumacacori for the lands, as set forth in the proceedings of the survey thereof and in the copy of the original expediente.

That under the law of the Mexican Congress of February 10, 1842, Don Francisco Aguilar, on April 18, 1844, became the owner by purchase, as before mentioned, "of the four square leagues of agricultural and grazing lands of the 'fundo legal' of the abandoned pueblo of Tumacacori and the sitios of the estancia (stock farm) of Calabazas, and the other places thereunder pertaining." It was averred that all the steps and proceedings in the matter of the grant and sale were regular, complete, and legal and vested a complete and valid title in fee in the grantee; and that the grantee at the time went into actual possession, use, and occupation of the grant and erected the proper monuments thereon, and that he and his legal representatives have continued ever since and until the present time in the actual possession, use, and occupation of the same, and are now possessed and seised in fee thereof.

The United States answered alleging that the alleged sale to Aguilar was without warrant or authority of law and void; that, if these lands had been theretofore granted to the pueblo of Tumacacori, they were abandoned about 1820, and by virtue thereof became public lands; that the title to said property, if any passed in 1807, was purely usufructuary, and vested no estate, legal or equitable, in the said pueblo. or mission, but that the same and the right of disposition were reserved to and remained in the national government.

The answer denied that Aguilar became the owner by purchase or otherwise of any lands [246]included in the alleged grant *of 1807 to the pueblo, or of any land of that mission or its

and never submitted to said general government for ratification or approval; that the lands claimed far exceeded those contained in the original survey; that the sale was by quantity and limited; and that the alleged grant was so indefinite and uncertain as to description as to carry no title to any land.

On the hearing the testimonios of the grants of 1807 and of 1844 were put in evidence. Evidence was adduced to the effect that Aguilar, the original grantee, never took or had possession of the lands; that he was the brother-in-law of Manuel Maria Gandara, who was the Governor of Sonora in 1842, and in 1845 to 1853, except a few months; to whom Aguilar conveyed in 1856, and, more formally, in 1869; that Gandara was in possession in 1852, 1853, 1854, and 1855, through his herdsmen; and that, as contended by counsel for petitioner, the money for the purchase was furnished by Gandara, and Aguilar took the title as trustee for him. Apparently the expedientes were not in the archives, nor was there any note of the grant in the book of toma de razon for 1844.

A translation of the titulo of 1844 is given in the margin.†

Seal

Treasury of the Department of Sonora, 1844. Title of sale, transfer, and adjudication of agricultural lands which include the 4 leagues of the fundo legal of the deserted pueblo of Tumacacori and the 2 sitios of its estancia (stock ranch) of Calabasas and the other places thereto annexed, the same being situated in the jurisdiction of the District of San Ignacio, issued by the said departmental Treasury in compliance with the supreme decree of the 10th of February, 1842, in favor of Don Francisco Alejandro Aguilar, a resi dent of the port and village of San Fernando de Guaymas. Second Seal. Four Dollars. Eighteen hundred and forty-four and eighteen hundred and forty-five. Ignacio Lopez, captain of cavalry retired to the infantry, honorary intendant of the army and treasurer of the Department of Sonora. 1842, provides for the sale, on account of the Whereas the supreme decree of February 10, critical condition of the public treasury, of the properties pertaining to the department of temand the lands for breeding cattle and horses reporalities, of which class are the farming lands spectively of the 4 leagues of the town site of the depopulated town of Tumacacori and the 2 sitios of the stock farm of the same at the points of Huebabi, Potrero, Cerro de San Cayetano, and Calabazas, whose areas, boundaries, monuments, and conterminous tracts are stated cuted in the year 1807 by the commissioned sur in the corresponding proceedings of survey exe

In the year 1884 the complainant and his co-owners objected to the overlap, and demanded of the Champion Mining Company that it abandon all claims to the surface and lode to the south of the Providence boundary line, above described. Thereupon, in the month of November, 1884, John Vincent, the superintendent of the defendant, the Champion Mining Company, under the authority and by the direction of the said company, relocated the New Years Extension Mine by a notice of relocation, in which the fact of the overlap under the original location was particularly recited, and the lines were readjusted so as to avoid the overlap and to conform to said line f-g of the Providence Mine, as shown on figure 1.

crosscut was run back to the Contact vein
on the 600 foot level, and another on the
1,250 foot level, and much of the ground now
in controversy was thereby prospected and
opened up by complainant and his co-owners.
(See Fig. 1.)

The claims of the respective parties will be
readily understood by reference to Figure 1,
which shows the relative position of all the
mining properties belonging to both, with the
lines claimed by them.

The portion of the Contact vein in dispute is that upon the dip of the ledge lying between the line marked "Line claimed by Providence" and the line marked "Line claimed by Champion."

The apex of the Contact vein is represented by the dotted line x-x, and shows the vein as far as exposed in both the Champion and Providence ground. South of the course of the vein in the Providence

The line f-g is the same line as that desig nated A-B by some of the witnesses.

In the notice of relocation the lode line was particularly described as follows: "The lode line of this claim as originally located, nd which I hereby relocate, is described as follows: Commencing at a point on the north-ground is unknown. erly bank of Deer creek, which point is 60 feet S., 11 degrees 45 minutes east of the month of the New Years tunnel and running thence along the line of the lode towards the N. E. corner of the Providence mill, about S. 46 degrees 15 minutes east, 200 feet, more or less, to a point and stake on the northerly line of the Providence Mine, patented designated as Mineral Lot No. 40 for the south end of said lode line."

It also contained the following statement: "And whereas, part of this claim, as originally described and as hereby relocated, conflicts with the rights granted by letters patent of said Providence Mine, said lot No. 40, now, therefore, so much of this claim, both for lode and surface ground, as originally conflicted or now conflicts with any portion of the surface or lode claims or rights granted by said patent, is and are hereby abandoned, which portion of this claim so abandoned is described as follows: All that portion of the above-described New Years Extension Claim for surface and lode which lies south of the [299]northern boundary line of said *Providence Mine, which runs north 43 degrees 10 minutes east, across the southeastern corner of this claim."

Upon the trial the circuit court held that there could be but one end line for each end of the Providence location, and that the lines g-h and a-p constituted such end lines; that *such lines constituted the end[300] lines of not only the originally discovered Providence lode, but also of every other vein that might be discovered within the surface lines of the location. But, notwithstanding this holding, in entering the decree the line f-g was also established as an end line of the Contact vein, but for its length only, and then that from "g" the line g-h, and that line extended indefinitely eastwardly, constituted another end line for the same end of the lode, and constituted the line through which the plane determinative of all extralateral rights in the vein must be drawn.

From this decree the appellant here was allowed an appeal to the circuit court of appeals.

The latter court established the line g-h-h1 as the sole line of the Contact vein, and reversed the decree of the circuit court in so far as it fixed the line f-g as an end line.

As a result of this decree the complainant was not only shut out of all extralateral rights in the Contact vein north of the line

The New Years Extension as relocated is conterminous with the Providence Mine on the northerly boundary line designated as the line f-g, running south 43 degrees west.g-h-h', but also of that portion of the vein (Fig. 1.)

That line is the only boundary between the two properties, and the only boundary of the Providence location which is crossed by the Contact ledge.

lying vertically beneath the surface lines of
the Providence which extend north of that
line, and which are marked upon the figures
as constituting the parallelogram_h-i-k-h1,
which was awarded to the Champion. (See
figure 1, showing the end line fixed by the
circuit court, and that line as subsequently
fixed by the court of appeals with the latter
line extended in its own direction both east-
wardly and westerly.)

The first workings of the appellee involved
no conflict with appellant. The shaft ran
parallel with the Providence line, and
none of the levels crossed that line until
about three months before this suit was be-
gun, when the 1,000-foot level was driven From the judgment of the circuit court of
across it into the ground in dispute. Sub-appeals the appellant has appealed to this
sequently the eighth and ninth levels were
driven across.

court.

There are nine assignments of error. The The work done by the Providence was car- first eight attack so much of the decree as ried on through a shaft sunk on the Provi- establishes the line g-h as an end line, for dence or Granite ledge, from which shaft al the purpose of determining the extralateral

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