“126. All purchases, sales, and contracts the notary, who, besides, shall draw up all made on account of the treasury, whatever other acccssary papers. In the absence of a be their purpose, shall be made by the com- notary, a clerk, whom the commissary shall missaries general sitting as boards of sale; bring for the purpose, shall draw up the min. but before convoking them, it shall be abso-utes and the conclusions.” The proceedings lutely necessary to receive first the order were then to be forwarded with a report therefor, either from the supreme govern. thereon to the supreme government, “without ment, communicated directly or through the whose approval the purchase, sale, or contract treasury general, or rather from the directory shall not be carried into effect;" and it was of revenues, when it relates to matters sub- also provided that “when there is evidence ject thereto.

that any member of the board has bought or [253] *"127. Said board shall hold its sessions in sold at the sale, himself or through a third

the room most suitable for the purpose in the persor, the sile shall he void and he shall be commissariats, or in the public place nearest punished with the penalties the laws impose to those offices, and the regular members shall upon those who commit like abuses.” be the commissary or subcommissary, who In 1835 the state legislatures were abol. shall preside, the senior officer of the treasury, ished and department bouies established; and or the one who acts in his stead, and the at the bases for a new constitution were adopttorney general, where there is one, and each ed, followed by such constitution dividing the ct these employees shall take the place or seat country into departments, the interior to which he is entitled in the order in which government of which was intrusted to the they are named.”

governors in subordination to the general Besides the regular members, it was pro- government. 3 Mex. Laws, 75, 89, 230, 258. vided by article 128 that there should be By a decree of April 17, 1837, the principal special members, depending on the character officer of the general treasury in each deof the sale, purchase, or contract being made,partment was designated as a superior chief as for instance, when it related to the offices of the treasury, and on him and his subordi. or revenues in the federal district subject to nates were conferred by article 92 the powers the directory general, the auditor in charge and duties forinerly exercised by the comshould attend; and if subject to any of the missary general and his subcommissaries, "in other departments, the chief clerk of the bu. so far as they do not conflict with this dereau of accounts, etc. If it related to supplies cree, for in that respect all existing laws for army service, the officer appointed by the stand repealed.” 3 Mex. Laws, 363. proper inspector should be present; if to busi Articles 73, 74, 75, and 76 were as follows: ness pertaining to the artillery arsenals, etc., "73. All the purchases and sales that are the chief oflicer thereof; if to hospital ser- offered on account of the treasury and exceed vice, the first assistant of the medical corps; five hundred dollars shall we made neces. if to fortitication works, the chief of the corps sarily by the board of sales, which, in the of engineers; and if, finally, to other matters, capital of each department, shall be composed the employee of me nearest related depart of the superior *chief of the treasury, the de-[2551 ment appointed by the commissary general. partmental treasurer, the first alcalde, the atTimely notice was required to be given to torney general of the treasury, and the auditthe regular and special members of the day or of the treasury, who shall act as secretary. and hour of the sale, which ordinarily should Its minutes suall be spread on a book which be held at 10 o'clock in the morning.

shall be kept for the purpose, and shall be It was also provided that if there was a signed by all the members of the board, and notary public in the place, he should neces- a copy thereof shall be transpuitted to the sarily be present at the sessions of the board, superior chief of the treasury, for such pur. and that whatever was done therein should poses as may be necessary and to enable him be certified to by him, or by two attending to make a report to the supreme government. witnesses, if there was none; that the sales “74. The superior chiefs shall hold mcetor purchases intended to be made should be ings of the boards of the treasury at least published for at least eight days beforehand twice a month, and when they consider it by placards put up in the most public and necessary according to the dilliculty and imfrequented places, and also inserted in news- portance of the business. These boards shall papers of greatest circulation, if there were be composed of said chief, the departmental any, care being taken that the notices con- treasurer, the attorney general of the treastained the necessary information about the ury, the principal collector of the revenues matter and its most essential circumstances; and the auditor of the treasury, who shall that when the sale was opened, and the cus act as secretary thereof.

tomary proclamations made, all lawfully “75. The object of the board of the treas(254]made bids should be received *until the day ury shall be to procure the prosperity and

Cof final sale, which should be made to the increase of the revenues of the treasury, the bidder wbo oliers the most advantages to the most easy and prompt collection thereof, to treasury, as determined by an absolute ma- promote ihe economies that should be made, jority of the votes of the board, which minuts in expedite such grave matters of dillicult and everything that may have occurred et solution cs the superior chief may bring to the sale shall be entered on the book, which its knowledge, and to make a report to the tbe commissary and subcommissaries shall latter of bad management, improper conduct, keep for the purpose, and which the members failure to comply with their duties and other shall sign with attending witnesses or with Comissions of which they may have knowledgą,

ar may have observed in the employees of the under other pretext shall, in any manner, emtreasury of the department.

| barrass the proceedings of the board of sale in "76. The minutes of the board shall be making the sales, but the right of parties in spread on the proper book, which shall be interest to apply to the supreme government, signed by all the members thereof, and ar or to the proper authorities, shall remain inauthenticated copy transmitted to the supe tact. rior chief of the treasury to enable him to “Therefore I order this to be printed, pubmake a report to the supreme government, lished, and circulated, and demand that it be when the case requires it."

complied with.” 4 Mex. Laws, 114. By a law of December 7, 1837, it was made Lopez certified that it was in virtue of this the duty of the governors, among other decree that he had sold the lands in question things, "to preside over the boards of sale as belonging to the class of temporalities, and of the treasury, with power to defer the and as being of a value not exceeding $500, resolutions of these latter until, in the first in which case he assumed that he was auor second session thereafter, the matter under thorized to sell irrespective of the board of consideration is more carefully examined sales in view of article 73 of the decree of into.” 3 Mex. Laws, 443.

April 17, 1837. The argument is that as that by article 140 of a decree of June 13, 1843, article provided that all purchases and sales 1988]it was made the duty *of the governor of each exceeding $500 should be made necessarily

department to publish the decrees of the by the board of sales, therefore all property president and cause them to be complied under that value could be sold by the de with; and by subdivision 10 of article 142, partmental treasurer alone; but the difficulty 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 | land claims, that even if that provision op. supervision of the same. 4 Mex. Laws, 428. erated in the manner contended for, it had And in passing it may be remarked that no application to a sale under the decree of there is absolutely nothing in this record to | February 10, 1842, which specifically directed indicate that the governor participated in | that the sales should be made by the board, any way in the act of sale, while the terms and contained nothing to suggest that the of the testimonio clearly show that the de- value of the property affected the power and partmental treasurer proceeded and assumed duty of the board in any way. to proceed upon his own sole authority. The decree recognized the existence of the

December 16, 1841, the office of the supe-boards of sale as the only proper official orrior chief of the treasury created by the de- gans to accomplish the results desired, and it cree of April 17, 1837, was abolished, and it was this decree that was relied on as justify. was provided that the departmental treasur ing the proceedings. If these lands were not ers should continue for the present to per of the temporalities, then the basis of the form the functions of their office as estab sale utterly failed, as the decree applied only lished by the law creating them, and also to to property of that class, and if of the temperform those of the discontinued chiefs of poralities the sales were to be made by the the treasury, except such as were assigned to board. the commandants general, who were to be in- In relation to article 73 of the law of 1837, spectors and visitors of the treasury offices, some further observations may be added. and to see that the public revenues were well The regulations of July 20, 1831, and the and faithfully collected, administered, and law of April 17, 1837, treated of the same disbursed; and to make timely reports to subject-matter, and must be read together; the supreme government of what they ob- and prior laws, so far as not conflicting, were served, which should be brought to its atten. expressly saved from repeal by article 92 of tion. 4 Mex. Laws, 75.

the latter act. On February 10, 1842, the following decree *By $ 73, the board of sales was necessarily[238) was issued :

to make sales exceeding $500, but nothing "Antonio Lopez de Santa Ana, etc.

was said as to sales for less than that sum. “Article 1. The boards of sale in the sev- This would seem to have left the law of 1831 eral departments will proceed to sell, at pub in force in respect of the making and the con. lic auction, to the highest bidder, the prop-duct of sales of property having a value beerties (fincas) situated therein that pertain low that amount, and whether the board of to the department of temporalities.

sales consisted of the membership prescribed “2. No bid will be admitted that does not by $ 73, or was composed in some respects of cover the amount considered to be the value a different membership, is not material. of the property (fincas), computed from the While these various laws are rather confusamount of the leases, which shall be con- ing in their number and minuteness, nothing sidered as the interest thereof, at the rate of is clearer than that the power to make sales five per cent.

and grants was vested in the treasury de"3. The bids shall be made for cash, which partment of the nation and governed by shall be paid when the sale is approved, less strict rules and regulations, none of which the amount of the burden imposed on each contemplated that any single officer could property (fincas), which the buyers shall con- make the sales. It is enough that the detinue to recognize with a mortgage thereof.partmental treasurer did not possess the

"4. No action or claim, which the actual power, acting singly and on his own respon.

lessors of the property (fincas), in question, sibility, to conclusively determine to what 1257]may intend to set up for *improvements or class lands belonged, and their value, and


saving decided these points, thereupon to tion, the lands of this pueblo and mission exercise the sole power of sale.

were abandoned, it would seem that they thus Tumacacori, Calabazas, and Huebabi are became a part of the public domain of the said to have been originally separate and dis- nation, and that as such the only laws appli. tinct pueblos and missions, of which the two cable to their disposal were the laws of the latter were abandoned as early as December, nation in relation to its vacant public lands, 1806, when the native Indians of Tumacacorito which the proceedings in this instance do and the governor of said Indians presented pe- not purport to have conformed or to have titions to the governor and intendente conde been made under them. to give them title in accordance with the We concur with the court of private land royal instructions of October 15, 1754, and of claims that in either *view there was a fatal[200g article 81 of the royal ordinances of December want of power in the departmental treasurer 4, 1786 (alleging the loss or destruction of to make the sale, and it is not asserted in the their old title papers), of the lands embraced petition, nor was any evidence introduced to in the fundo legal and the estancia of each show that his action was participated in or pueblo and mission, whereupon the grant of ratified by the governor, or by the national 1807 was made.

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 N

NORTHERN PACIFIC RAILROAD COM. own benefit in community and individually,

PANY et al., Plffs. in Err., and for the decent support of the church of said mission, but under the condition that in

PATRICK R. SMITH. no case and in no manner shall they alienate at any time any part of said lands which are (See S. C. Reporter's ed. 260-276.)

adjudicated and assigned to them, since they Grant to railroad company-extent of ocok 59 are all *to be considered as belonging to the Republic and community of natives alone, for

pation. their proper use, as well for sowing purposes as for stockraising and the increased pros

1. The occupation and survey of lands with inperity of the same.”

out filing a plat or obtaining the adoption of This was in accordance with the general

the town site or a patent therefor until after rule that the missionaries and Indians only a railroad is located thereon, does not prevent acquired a usufruct or occupancy at the will the land from being a part of the public doof the sovereign. United States v. Cervantes, main for the purposes of a grant to the rallo 18 How. 553 (15: 484].

road company. Prior to 1829. the tribunal of the inguigi. 2. The fact that only 25 feet in width of its tion had been abolished by the Cortes, and

right of way has been occupied for railroad the monastic and other religious orders sup

purposes, under a grant of 200 feet on each pressed, and on the 10th of May of that year

side of the track, does not prevent a railroad

company from claiming the full width of the it was ordered, through the department of

grant as against persons who had occupied the treasury, that "the property in which the premises for the purpose of making a consist the funds of the temporalities of the town site location thereof, but had not acex-Jesuits and monastics and the rural and quired a right thereto as against the railroad urban estates belonging to the inquisition” be

company when the road was built. sold ai public sale to the best and highest

[No. 93.] bidder. 2 Mex. Laws, 108. May 31, 1829, the commissary general of Mexico published

Argued November 4, 5, 1897. Ordered for a "list or the urban and rural estates relat

Řeargument January 10, 1898. Reargued ing to the temporalities of the ex-Jesuits and

March 21, 1898. Decided May 31, 1898. suppressed monastics with a statement of their values, the burdens they carry, and an

IN ERROR to the United States Circuit nual revenue” (Ibid. 117), which did not in-1 Court of Appeals for

in Court of Appeals for the Eighth Circuit to reclude the lands in question. The depart view a judgment of that court affirming the mental treasurer did not claim and manifest- / judgment of the Circuit Court of the United IV did not acquire the power to sell these States for the Distriot of North Dakota. in lands under the order of May 10. 1829. or the favor of the plaintiff, Patrick R. Smith, in an regulations of July 7, 1831, bearing on that

that action brought by him against the Northern subject.

Pacific Railroad Company to recover the posBy a decree of April 16, 1834 (2 Mex. Laws,

NOTE.-A8 to pre-emption rights, see note to 889), the missions of the Republic were secu- United States v. Fitzgerald, 10 : 785. larized, that is to say, converted from sacred That patents for land may be set aside for to secular uses, and so far as these lands fraud, see note to Milier v. Kerr, 5:381. could have been regarded as temporalities. As to errors in surt'eys and descriptions in that is, profane property belonging to the po

erty belonging to the patents for lands; howo construed,-sce note to, chrrch or its ecclesiastics, that decree

| Watts v. Lindsey, 5: 423.

As to land grants to railroads, see note to . changed their condition.

Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. And, as many years before the sale in ques-1 28 : 794.

session of land in the city of Bismarck and "The defendant for amended answer to the[ 26. territory of Dakota, now state of North Da- complaint herein: kota. Judgments of the Circuit Court of Ap | "First. For a first defense, alleges peals and of the Circuit Court reversed, and "That the land mentioned in the complaint cause remanded to the latter court with di- is situated within two hundred feet of the rections to enter a judgment in favor of the center line of the road bed of its line of railroad defendants.

constructed through the state of North See same case below, 19 U. S. App. 131, 58 Dakota, and has been for more than twenty Fed. Rep. 513, 7 C. C. A. 397.

years in its lawful possession as its right of

way, roadbed and depot grounds, and that the Statement by Mr. Justice Shiras:

same was granted to it as a right of way by This was an action brought by Patrick R. the act of Congress described in the com. Sinith on the 28th day of December, 1891, plaint. in the circuit court of the United States for "Admits that at all times mentioned in the the district of North Dakota against the complaint the plaintiff was a resident of the Northern Pacific Railroad Company. The city of Bismarck in the state of North complaint and answer were as follows: Dakota, and further admits that the de.

“The complaint of thy 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 al

alleges 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.

ever. “That during all the time hereinafter “Second. For a second defense mentioned the above-named defendant has "That on the ninth day of May, 1889, the been and still is a corporation created by and plaintiff impleaded the defendant in the disexisting under and in virtue of an act of the trict court within and for the county of Bur. Congress of the United States of America, leigh, in the sixth judicial district for the terentitled 'An Act Granting Lands to Aid in ritory of Dakota (now the state of North the Construction of a Railroad and Telegraph Dakota), for the same cause of action for Line from Lake Superior to Puget Sound on which he has impleaded it in this action. the Pacific Coast, by the Northern Route,'| “That at the time of the commencement of approved July 2, 1864.

this action, said action was pending in said **That on the 14th day of September, A. D. court and is still pending therein. 1876, the plaintiff became and ever since has “Third. For a third defensebeen and still is duly seised in fee simple and “That on the 31st day of January, 1878, the entitled to the possession of the following- defendan't recovered judgment against the described real property situated in the city plaintiff for the possession of a portion of the of Bismarck, in the county of Burleigh and property described in the complaint, to wit, territory of Dakota (now, and since the that portion thereof described as lots eleven organization thereof under a state govern- and twelve, for six cents damages and for ment, the state of Norch Dakota), to wit: $ costs, and that said judgment was Lots numbered five, six, seven, eight, nine, ten, rendered upon the cause of action mentioned eleven, and twelve, in block number eight, ac- in the complaint, which judgment is in full cording to the recorded plat of the city of force, unreversed, and unsatisfied. Bismarck, Dakota Territory, together with "Wherefore, the defendant demands judg- . the hereditaments, privileges, and appurte- ment: 1st. That the complaint be dismissed. mances thereof and thereto belonging. 2d. For its costs and disbursements in this

"That said defendant more than six years action.” prior to the commencement of this action *The findings of fact and law made by the[ 263 wrongfully and unlawfully went into posses-trial court were as follows: sion of the premises above described." That “The property in controversy, the same besaid defendant ever since said entry has ing eight lots in the city of Bismarck in wrongfully and unlawfully retained and with- North Dakota, described as lots five (5) to held, and still does wrongfully and unlawfully twelve (12) both inclusive, in block eight (8), retain and withhold, the possession thereof in the city of Bismarck, which was formerly from the plaintiff. And that the use and oc- known as Edwinton, and the name of which cupation thereof during said time was worth was changed by act of the legislature of the at least five thousand dollars a year. That territory of North Dakota to 'Bismarck' the damage to the plaintiff by the wrongful was part of an eighty (80) acre tract of land with holding of the possession of the premises which was entered by John A. McLean as as aforesaid is the sum of thirty thousand mayor of the city of Bismarck, in behalf of dollars.

its inhabitants, under the town-site act (Re“Wherefore the plaintiff demands judgment vised Statutes, $ 2387), and was patented to against said defendant for the possession of him thereunder July 21, 1879. said premises and for the sum of thirty “The corporate authorities of that city subthousand dollars, his damage3 as aforesaid, sequently and more than six years prior to together with his costs and disbursements the commencement of the action conveyed berein."

these lots to Patrick R. Smith, the plaintiff.

"The eighty (80) acre tract, on which these except the rear twenty-five feet thereof, hws lots were situated, was selected as the loca- ever been occupied for railroad purposes. tion of a portion of this town site, and gur- "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 eigbt (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 adoptel 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 “The congressional township embracing the in said action in said court (the same being premises in question was surveyed in the a court of competent jurisdiction of the par. months of October and November, 1872, and ties and subject-matter of said action) that the plat thereof filed in the General Land the defendant in the action herein (the plainOffice in March, 1873.

tiff in the action last above referred to) duly “On February 21, 1872 the Northern Pacific recovered in said action a judgment against (264]Railroad Company filed in the Department the defendants in that action including the

of the Interior the map of its general route plaintiff in this action, for the possession of east of the Missouri river. This route passed the premises last above described and for about three quarters of a mile south of this nominal damages for the with holding thereof. eighty-acre tract. On May 26, 1873, it filed “That the value of the use and occupation with the Secretary of the Interior, in the of- of the premises in question, for six years fice of the Commissioner of the General Land prior to December 28, 1891, the date of the Office, and he accepted, its map fixing the commencement of the action, is the sum of definite location of its line. The Interior twenty-six thousand dollars. Department thereupon designated such line "From the foregoing facts I find, as conupon its record maps for its use, and copies of clusions of law, that the plaintif is entitled such record maps were forwarded to and re-to the possession of the premises above demain on file in the office of the register and scribed, and to recover from the defendant receiver of the land office at Bismarck, hav- the sum of twenty-six thousand dollars with ing jurisdiction of that part of the public intercet thereon from the 28th day of Decemdomain embracing the premises in question. ber, A. D. 1891, at the rate of seven per cent The line thus fixed passed about two miles per annum, and his costs and disbursements.” south of this eighty-acre tract. During the year 1872 grading was done by the company Mr. C. W. Bunn for plaintiff in error on on this line extending in a continuous line both arguments. Mr. C. W. Holcomb filed from its grading east of the township in a supplemental brief for plaintiff in error by which this tract was located to a point one- leave of the court. quarter of a mile west of the west line of this Mr. Hiram F. Stevens for defendant in eighty-acre tract extended south to its in- error on both arguments. tersection with the grading. During the year 1872 there was a line staked out across Mr. Justice Shiras delivered the opinion this tract substantially where the railroad is of the court: now constructed, but no zrading was done on By the second section of the act of July 2, this line until the spring of 1873. In the year 1804, creating the Northern Pacific Railroad 1873 the railroad was constructed across this Company, there was granted *to that com-12661 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 rail. abandoned. The lots in question are within road where it may pass through the public two hundred feet of the main track of this domain.. 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 rai).

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