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 superior 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.

Ky 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 public 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.

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 treasurers 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:

"Antonio Lopez de Santa Ana, etc.

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 is, as pointed out by the court of private 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 justifying the proceedings. If these lands were not 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.

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

"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 prop-duct of sales of property having a value beerties (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

low 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 confusing 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 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.

tion, the lands of this pueblo and mission 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 claims that in either view there was a fatal[200] want of power in the departmental treasurer to make the sale, and it is not asserted in the petition, nor was any evidence introduced to show that his action was participated in or ratified by the governor, or by the national government in any manner. And this is not The titulo refers to some lands acquired by a case in which the sale and grant can be purchase, though the record leaves that mat-treated as validated by presumption. ter entirely vague and uncertain, and declares Decree affirmed.

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.,

D.

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]are 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

2.

pation.

tent to locate a town site thereon, but with
out filing a plat or obtaining the adoption of
the town site or a patent therefor until after
a railroad is located thereon, does not prevent
the land from being a part of the public do-
main for the purposes of a grant to the rail-
road company.

The fact that only 25 feet in width of its
right of way has been occupied for railroad
purposes, under a grant of 200 feet on each
side of the track, does not prevent a railroad
company from claiming the full width of the
grant as against persons who had occupied
the premises for the purpose of making a
town site location thereof, but had not ac-
quired a right thereto as against the railroad
company when the road was built.

[No. 93.]

Argued November 4, 5, 1897. Ordered for
Reargument January 10, 1898. Reargued
March 21, 1898. Decided May 31, 1898.

IN ERROR to the United States Circuit

a "list of the urban and rural estates relat-
ing to the temporalities of the ex-Jesuits and
suppressed monastics with a statement of
their values, the burdens they carry, and an-
nual revenue" (Ibid. 117), which did not in- Court of Appeals for the Eighth Circuit to re-
clude the lands in question. The depart-view a judgment of that court affirming the
mental treasurer did not claim, and manifest-
ly 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 church or its ecclesiastics, that decree changed their condition.

judgment of the Circuit Court of the United
States for the District of North Dakota, in
favor of the plaintiff, Patrick R. Smith, in an
action brought by him against the Northern
Pacific Railroad Company to recover the pos-

NOTE. As to pre-emption rights, see note to
United States v. Fitzgerald, 10: 785.

That patents for land may be set aside for
fraud, see note to Miller v. Kerr, 5:381.

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
Kansas P. R. Co. v. Atchison, T. & S. F. R. Co.

And, as many years before the sale in ques- 28: 794.

"Admits that at all times mentioned in the complaint the plaintiff was a resident of the city of Bismarck in the state of North Dakota, and further admits that the de"The complaint of the above-named plain- fendant is a corporation created by the said [261]tiff respectfully shows to this court and act of Congress. Denies each and every alalleges that the plaintiff is, and ever since legation in the complaint not hereinbefore the organization of the state of North Dakota specifically admitted, and it specifically denies has been, a citizen thereof and that prior that by reason of any of the allegations or thereto he was during all the time hereinafter things in the said complaint set forth the mentioned a citizen of the territory of plaintiff has been damaged in any sum whatDakota.

except the rear twenty-five feet thereof, has ever been occupied for railroad purposes.

"The eighty (80) acre tract, on which these lots 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.

"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 this line until the spring of 1873. In the year 1873 the railroad was constructed across this tract and has since remained and been operated upon it. The grading on its line of definite location two miles south was abandoned. The lots in question are within two hundred feet of the main track of this railroad as actually constructed and more than two miles from its line of definite location as shown on its map filed to definitely fix this line, and have been occupied by the defendant, through its tenants, during the period in question; but no part of the same,

"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."

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:

By the second section of the act of July 2, 1864, creating the Northern Pacific Railroad Company, there was granted to that com-[266] pany, its successors and assigns, the right of way through the public lands to the extent of 200 feet in width on each side of said railroad where it may pass through the public domain.

During the year 1872 there was a line staked out across the tract, a portion of which is in dispute in this case, substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the latter year the rail

road was constructed across this tract, and has since remained and been operated upon it. The lots in question are within 200 feet of the main track of this railroad as actually constructed, and have been occupied by the defendant during the entire period since the construction of the road, excepting lots eleven and twelve, which during about three years were in the adverse possession of the firm of Browing & Wringrose and of Patrick R. Smith, the defendant in error, as the tenant of said firm.

road Company a right of way through the public lands, to the extent of 200 feet in width on each side of said railroad; that, in pursuance of said grant, the railroad company had constructed its road in 1873, including in its right of way the land in dispute; that, on November 24, 1873, commissioners, appointed under the 4th section of said act, reported that they had examined the Dakota division of said railroad (including that portion of the same which cov ered the land in controversy) and that they In 1877 an action of ejectment, to recover had found its construction and equipment possession of said lots eleven and twelve, was throughout to be in accordance with the inbrought by the Northern Pacific Railroad structions furnished for their guidance by Company, in the district court of the terri- the Interior Department, and accordingly tory of Dakota against Browing & Wring-recommended the acceptance of the road by rose and said Patrick R. Smith, which action the government; that said report had been, resulted, on January 31, 1878, in a final judg-on December 1, 1873, approved by the Presiment, still subsisting, against said Smith dent; and that the company had maintained and the other defendants. and operated said railroad since its said con

On the trial of the present action, which struction to the time of trial, undoubtedly was brought in the circuit court of the Unit-*there was thus disclosed a prima facie title 268) ed States for the district of North Dakota and right of possession of the disputed tract. in 1893, and which brought into question the To overthrow the railroad company's case title and possession of lots five, six, seven, the plaintiff depended on an alleged conveyeight, nine, and ten, as well as of lots eleven ance made to him after July 21, 1879, by the and twelve, the plaintiff, Patrick R. Smith, city authorities of the city of Bismarck, of set up, as the basis of his title and right of the lots in dispute in this suit, and gave evipossession, a deed of conveyance by the cor-dence that the 80-acre tract on which these porate authorities of the city of Bismarck lots were situated was selected as a portion of the said lots as part of a town-site plat of a town site and surveyed prior to June 20, patented to John A. McLean, as mayor of said city, on July 21, 1879. The record does not disclose a copy of such deed to Smith, nor its date. In his complaint Smith alleged that "on the fourteenth day of September, A. D. 1876, he became and ever since has been and still is duly seised in fee simple and entitled to the possession" of the property in 267]dispute. *In the findings it is stated that the city authorities conveyed these lots to Pat rick R. Smith, the plaintiff, subsequently to the granting of the patent to the mayor on July 21, 1879.

The defendant, the Northern Pacific Railroad Company, at the trial relied on its grant of right of way from the United States on June 2, 1864, on its possession of lots six, seven, eight, nine, and ten since the construction of the railroad in 1873, and of lots elever and twelve since their recovery under the action and judgment in 1878, and the company likewise put in evidence the record of said suit and recovery as constituting res judicata.

The learned judge of the circuit court, af ter stating the foregoing facts, and some others not necessary to be here mentioned, entered judgment that the plaintiff was en titled to recover the possession of all of said lots and the sum of $26,000, as the value o 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; and that judgment was affirmed by the circuit court of appeals. 32 U. S. App.

573.

When it was made to appear that, by the 2d section of the act of June 2, 1864, there was granted to the Northern Pacific Rail

1872, by the Lake Superior & Puget Sound Land Company, and that said land company made and, on February 9, 1874, recorded, a plat thereof, and that said town site and plat was afterwards adopted as the town site of the city of Bismarck under the town site act of the United States (§ 2387, Rev. Stat.) and was patented as such town site to John A. McLean, mayor of said city, on July 21, 1879. The congressional township embrac ing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof was filed in the General Land Office in March, 1873.

It is evident that when in 1873 the Northern Pacific Railroad Company took possession of the land in dispute, as and for its right of way, and constructed its road over and upon the same, if the tract so taken was then part of the public lands, only the United States could complain of the act of the company in changing the location of its tracks from that previously selected. But, so far as this record discloses, the United States did not object to such change of location, but rather, by having, through the commissioners and the President, approved and accepted this part of the road when constructed, must be deemed to have acquiesced in the change of location as properly made.

But was the land in question part of the public domain in the spring of 1873? It certainly was, unless the occupation, at that time, of those who afterwards, in 1879, obtained a patent for a tract of 80 acres, including the land in question as part thereof, for a town site, deprived it of that character.

It has frequently been decided by this court that mere occupation and improvement