provisions of said Act, E. W. F. Sloan and John | claim that if the confirmed tract be properly
B. Williams appeared in open court in aid of surveyed and located, they will be left upon
the district attorney, as attorneys for said Mul- public land. They do not ask the Attorney-Gen-
ford and others, claiming an interest in said eral to appear in their behalf, but leave him to
survey, under a right derived from the United express the views of the United States, as pro-
States; that the District Attorney of the Unit-prietors of the vacant public land, if he thinks
ed States for said district, filed in said court, proper. We contend, therefore, that under the
the exceptions of said Mulford and others in the law of 1860, the Attorney-General has no right
name of the United States; that, thereupon, tes- to dismiss an appeal taken in behalf of the set-
timony was taken in support of said exceptions; tlers, unless by consent of the counsel employed
that in January, 1861, said Mulford, to ascer- by them, and that the settlers have a clear,
tain his right to intervene in his own name, substantial right to intervene in the name of
filed his petition to that end, and moved the the United States, and to appear by their coun-
court for leave to intervene, which motion was sel in the court below, and in this court on ap-
denied by the district court on the ground that peal; and this, not as a privilege, but as a
his interest was under a right derived from the right under the law. The right to appear in
United States, and that he was already repre- the court below has never been questioned there,
sented jointly with other parties claiming under either by the court or by the district attorney,
the United States, by the counsel employed to but has been uniformly sustained.
aid the district attorney in the name of the Messrs. Edward Bates, Atty. Gen., J. S.
United States; that, in September, 1862, a de- Black, and Reverdy Johnson, opposed.
cree was entered by the district court approv-
ing the survey of the Surveyor-General, which
decree was adverse to the interests of said Mul-
ford and others; that afterwards, within the
time prescribed by law, the district attorney, at
the request of said Mulford and others and in
their behalf, obtained an order granting an ap-
peal to this court from said decree in the name
of the United States, as prescribed by said law
of June 14th, 1860; that said appeal was duly
sent up to this court and docketed as number
282, and was not reached at the last term of
The case was brought before the court on ap-
this court, and is on the calendar of the pres- peal from the decree of the District Court of
ent court as number 207; that said stipulation the Northern District of California, approving
was not signed by the said Mulford and others, a survey of a confirmed private land claim, un-
nor by their attorney in the court below, nor by der the Act of June 14th, 1860. After the sur-
anyone authorized to sign such stipulation for vey was returned into the District Court, a
them, but the same was signed by the Attorney-monition was issued to the Marshal requiring
General of the United States against the pro-
test of said Mulford and others and their attor-

ney.

Messrs. J. B. Williams, and J. M. Carlisle, for the motion:

The 2d section of the Act of June 14th, 1860, provides, that “all parties claiming interest under pre-emption, settlement or other right or title derived from the United States, should not be permitted to intervene separately; but the rights and interests of said parties should be represented by the District Attorney of the United States, intervening in the name of the United States, aided by counsel acting for said parties jointly, if they think proper to employ such counsel."

Congress thereby intended to give to each settler a right to intervene jointly, and the use of the name of the United States. The right of the settlers to intervene and be heard jointly, cannot be successfully questioned. The Attorney-General of the United States has no authority for dismissing an appeal taken by the district attorney in behalf of the settlers. He is not the attorney of those claiming under the laws of the United States. The appeal was taken in the name of the United States, but in behalf of Mulford and others, appearing jointly and represented by their counsel. The Attorney-General can have no right to dismiss their appeal. Mulford holds partly under a patent from the State of California and partly as a settler. There are other settlers who are affected and who appear jointly with him. They

Mr. Justice Field delivered the opinion of the court:

The appeal in this case was dismissed during the last vacation, by stipulation of the parties, under the 29th rule. A motion is now made on behalf of one Thomas W. Mulford and others, that the stipulation be vacated, the mandate of the court be witheld, and their attorney be allowed to enter his appearance and be heard on their behalf.

him to notify all parties having or claiming to
have, any interest in the survey and location of
the claim, to appear on a day designated and
intervene for the protection of their interests.
The only parties who appeared in pur- [*716
suance of the notice given by the Marshal were
the United States, the claimant and one Castro;
and the court ordered the default of all other
parties to be entered. Subsequently, Mulford,
who now appears in the motion before us, ap-
plied to the court to open the default and to
allow him to intervene, alleging an interest in
a portion of the land embraced by the survey
under a patent from the State of California;
but his application was denied. The action of
the court in this respect is not revisable, the
opening of the default being a matter resting in
its discretion.

The motion is on behalf of Mulford and
others, but who are included by the term "oth-
ers" we are not informed by the record. Their
names are not given, nor is their interest stated,
except in the very general and loose terms with
which it is designated in the argument of coun-
sel as that of settlers on the land under the
laws of the United States.

The Act of 1860 is liberal in the permission it gives for interposing objections to the surveys of confirmed claims made by the SurveyorGeneral of California; but at the same time it limits with special care the permission to those who are in fact interested in making a contest. It authorizes the return of surveys for examination and adjudication only upon the applica

ANN

tion of parties who, in the judgment of the court or district judge, have such interest as to make it proper for them to intervene for its protection. It provides that when objections are interposed by the United States, the application shall be made by the district attorney, and be founded on "sufficient affidavits;" and that when application is made by "other parties claiming to be interested in, or that their rights are affected by," the survey and location, there shall be a preliminary examination into the fact of such alleged interest. "The court, or the judge in vacation," says the statute, "shall proceed summarily on affidavits or otherwise to inquire into fact of such interest, and shall in its discretion determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to 717*] the *survey, and shall grant or refuse the order to return the survey and location, as shall be just."

The proceedings upon this examination, or at least the order of the court or judge thereon, should appear in the record; for we can only know by the order whether the parties have been permitted to contest the survey before the court. When the interest of parties applying is shown and the order is made, those who claim under the United States by "pre-emption, settlement, or other right or title," must intervene, not separatively, but collectively, in the name of the United States, and be represented by the district attorney, and any counsel employed by them co-operating with him.

In the present case, it does not appear that any of the precautionary steps required by the Act in question were pursued by the nameless "others" for whom the present motion is made. No presentation, so far as the record discloses, was made of the interests of any persons against the survey besides those we have named. And it is not permissible for parties to appear in this court and be heard in opposition to the survey approved, who have never participated, or asked to participate, in the proceedings upon the survey in the court below.

These views also dispose of the motion to set aside the dismissal of the appeal in the case of U. S. v. Nunez.

The motion in both cases is denied.

Mr. Justice Miller concurring:

entitles him to be heard in opposition to the survey which has been made and reported to the court. The statute then proceeds in the following language: "Provided, however, that all parties claiming interests under pre-emption, settlement, or other right or title derived from the United States, shall not be permitted to intervene separately, but the rights and interests of said parties shall be represented by the District Attorney of the United States, intervening in the name of the United States, aided by counsel acting for said parties jointly, if they think proper to employ such counsel."

The motion in this case is made in behalf of persons belonging to the class mentioned in this proviso, who allege that their rights have been sacrificed by the Attorney-General in making the agreement to dismiss the appeal. It is overruled on the ground that their names do not appear in the record as having any interest in the case, or as having been represented by the district attorney in the name of the United States, in the proceedings in the district court. The statute says that persons in their condition must appear by the district attorney, in the name of the United States. They can contest the matter in no other way, and through no other attorney. Yet because they did not appear in their own name, in violation of the statute, it is said they have lost a right, which they would have had, if they could in some way have procured their names to be placed on the record as contestants. When the Act says that they can only appear in the name of the United States, I cannot conceive that this court, or the district court, should hold them to have been guilty of laches, because they did not in some manner evade both the letter and spirit of the law, by procuring their own names to be inserted in the record.

The language of the statute is, that "the rights and interests of said parties [*719 shall be represented by the district attorney." It is true he may be aided by other counsel, if the parties choose to employ them; but they are represented by the district attorney. He is their attorney of record, and they cannot discharge him or compel him to adopt any other mode of proceeding than what he deems best. He, adhering to the statute, makes his objections to the survey in the name of the United States, and when one of these parties requests him to insert his name in the proceedings, the over-attorney refuses. Has such party any remedy? The law says he must be represented by the district attorney, and he has no right to displace him and substitute another. But because he cannot do this, he is deprived of the right to be heard here or in the court below, according to the opinion of the court in this case.

I concur in the judgment of the court, ruling the motion to set aside the agreement between the Attorney-General and the counsel of the claimant, by which it is agreed that this appeal shall be dismissed. But I do not agree to the ground upon which the judgment of the court is based; and as the matter involves the construction of an important provision of the Act of June 14, 1860, concerning surveys of Mexican grants in California, I think it of sufficient consequence to justify a statement of my views separately.

For myself, if I believed the parties making this motion had any such right and were really among the persons represented by the district attorney in the court below, I would permit that fact to be shown here by affidavit or in any other mode which would satisfy the court that it was so. And I think the contrary rule operates as a trap and delusion, by holding that they have an interest, which gives them a right of appeal, but affords them no means of render

718*] That Act provides, in its 3d section, that any party whom the district judge "shall deem to have sufficient interest in the survey and location of a land claim," "shall be allowed to intervene for his interest therein," and that the court, or judge in vacation, shall proceeding that right effectual. summarily to determine, in his discretion, But I do not believe that persons included in whether the applicant has such an interest as the proviso already quoted have any right of

appeal or any other right of contesting the survey, except as it may be exercised through the law officers of the government, subject to their judgment of what may be their official duty in the premises.

The Act divides those who may contest the survey into two classes: those who claim through or under the United States, and those who do not. All who claim through the United States, whether by "pre-emption, settlement, or any other right or title," constitute one class, who must appear by her attorney and in her name. The words above italicized, expressive of the nature of the interest derived fron. the United States, are not mere synonyms, but are cumulative; and when, in addition to the several inchoate rights of settlement 720*] *and pre-emption, the word "title" is used, it must mean a patent or some other lcgal title, emanating from the United States.

Who constitute the other class? They must be those who claim under rights or grants. more or less perfect, derived from the Mexican Government. This class consists of persons having claims, confirmed or otherwise, the location of which would interfere with the survey, which is the subject of contestation.

As to this class of persons, the government has, by its solemn treaty, bound itself to pro tect their rights. It is therefore eminently proper that they should be permitted to assert their rights in their own name, and by such counsel as they may choose to employ. The statute gives them this privilege, and if the court below has found that such persons had an interest in the contest there, it gives him the additional right of an appeal to this court. But as to the other class, who claim through the United States, it is clear that any right or title which they may have, must have been acquired subject to the final determination and location of the Mexican claims existing when this government became lord of the soil. The government may therefore very well say to them, "You knew when you settled, or made pre-emption, or took a patent, that all just Mexican claims must be first satisfied, and you have made your location subject to this risk. The honor of the United States is concerned to see that no unjust obstacle shall be interposed by her, or those to whom she has made concessions, to the proper settlement and location of those claims. If you choose, therefore, to appear in the name of the United States, and by her attorney, and make such objections to these surveys as her officers, uninfluenced by personal motives, may deem just and proper, under the circumstances, you have that privilege; but you can do it in no other manner, and the right to contest the proceeding and cease from the contest at any stage of it must remain to the government; and to this end it shall be conducted in her name and controlled by her officers."

I think this is the true construction of the 721*]statute. I see no other reason for requiring this class of persons to appear in the name of the United States, and by her attorney, while persons of the other class are at liberty to select their own attorney and appear in their

Own name.

'Besides, it is evident that the framers of the atatute did not regard this right of contesting the survey as one so very sacred, since the judge of the district court can decide on the

The Governor of California had no authority, under Mexican law, to make a grant of mission lands. vacant lands, was derived from the Colonization Authority of Governor of California, to grant Law of Aug. 18, 1824, and the Regulations of Nov. 21, 1828.

His authority was restricted to the granting of
unoccupied public lands and could not be enlarged
or diminished by the Departmental Assembly.

Public establishments could not be granted under
those laws, nor lands in the lawful possession and
occupancy of persons claiming provisional title un-
der the government.
[No. 130.]

Argued Jan. 28, 1864. Decided Apr. 18, 1864.

APPEAL from the District Court of the Unit

ed States for the Southern District of Cali

fornia.

The decree appealed from confirmed to the claimants their claim to the Mission of San Gabriel and the lands connected therewith.

This claim is based upon a grant claimed to have been made by Governor Pio Pico, dated June 8th, 1846, of which the following is a copy, viz.:

"Pio Pico, Constitutional Governor of the De-
partment of the Californias:

Having been personally empowered by the
most excellent Departmental Assembly for the
alienation of the Missions, both for the payment
of their indebtedness, and to prevent the total
ruin thereof, and to provide resources that may
assist in the common defense in case of foreign
invasion, which, according to some evident data,
is very near happening; in which event the gov-
ernment of the department is fully empowered
by the Supreme Ruler of the Nation, consider-
ing that the Messrs. Don Perfecto Hugo Reid
and Don Julian Workman have rendered valu-
able services to the government and furnished
eminent aid for the protection and security of
the department, under the guaranty of a just
indemnification, when the general Treasury
should be unembarrassed, the said persons hav
ing solicited, for their own benefit and that of
their families, the Mission of San Gabriel, with
all the lands, town and county property, in
payment of the amounts which, at different
times, they have furnished the Departmental
Government, they binding themselves, moreover,
to satisfy, integrally and religiously, the paper
debts of the said Mission that may appear
proved according to the specification formed
'thereupon by the committee on Missions, and

also to designate a portion or an amount suffi-
cient for the support of the ministering fathers
that may reside there, and for the preservation
of divine worship; all that is necessary having
been considered and examined in the exercise of
the powers with which I am vested, I have con-
cluded to execute a real sale and perpetual
alienation forever of the Mission of San Gabriel
to the said Perfecto, Hugo Reid, and Julian
Workman, and according as it has suited them,
with all the appurtenances recognized as there-
unto belonging, consisting of lands, improve
ments, real estate or self moving property.
In testimony whereof, for its validity and
better fulfillment, the following conditions are
inserted:

"Proclamation. Pio Pico, Constitutional Governor of the De partment of California, to its inhabitants: Know ye that the country, being menaced by the sea and land forces of the United States of America, which has already occupied the towns of Monterey, Sonoma, San Francisco and other frontier places north of this department, where already waves the flag of the stars, threatening to occupy the other ports and towns and subject the same to their laws; and this government being firmly resolved to make all possible efforts to repel the most unjust of aggressions which the latter centuries have beheld made by a nation, inspired by the most unheard of ambition," etc.

1. They shall pay to the creditors of the Appellants contended that the evidence was Mission of San Gabriel, the amounts that may that no possession was taken of the lands grantbe presented, properly proven, within a termed before the flight of the Governor, nor claim of two years, at most, with whom they may agree as to the time, crediting themselves with the amounts they may have paid out, which are recognized as legal.

2. Sale is made of the principal edifices and every description of other improvements, orchards, vineyards and other real estate and self moving property, and of all the entire vacant lands thereunto belonging and not recognized as the property and belonging to any individual. 3. Henceforth and forever they shall provide at their own cost, whatever may be necessary for the subsistence of the ministering fathers who shall at any time reside there, and likewise for the preservation of divine worship.

4. The lesion enorne cannot be alleged for this sale in behalf of anyone; and the excess, whether a small or great amount, to be in favor of the purchasers, the amount which the said Mission actually has, being the just value thereof, and there being no one who would give more therefor.

Therefore I declare, by these presents, the aforesaid individuals to be the legitimate owners of the said Mission of San Gabriel, in common upon the terms and under the conditions above written. In virtue whereof they may take immediate possession.

made until after the military occupation of California. In 1850, the lands were claimed by Padre Blas Ordas, who claimed that the lands were the property of the Mission. At that time the claimants had not, nor did they pretend to have, any possession of the lands. Respondents claimed that there was evidence of possession.

There is no evidence of the payment of the consideration money other than the recital in the grant. Moreno was unable to swear of his own knowledge that anything had ever been paid.

There is no allegation in this case in the grant or elsewhere, that this Mission was sold "at public auction, after giving the customary notice as is specifically required by the Act of the Departmental Assembly of March 30th, 1846, in regard to the Mission of San Gabriel by name.

"Art. 1. The government is authorized to carry into effect the object of the decree of 28th May last, published by this honorable Assembly respecting missions: to which end, seeing the impracticability of renting, mentioned in Article 3 of said decree, the Departmental Government will act in the manner which may appear most conducive to obviate the total ruin of the Missions of San Gabriel, San Luis Rey, San Diego, and the remainder which are in similar circumstances.

And for the due testimony thereof at all times, I give this document as a formal deed Art. 2. As most of these establishments are which shall be recognized and respected by allowing large amounts, if the property on hand the civil and military authorities of the Mexi- should not be sufficient to satisfy their acknowlcan Nation, to this and all other departments, edged debts, attention shall be had to what the and even by the General Government thereof, laws determine respecting bankruptcies, and duly authorized by my signature and that of steps shall be taken accordingly. the Secretary of the State, on this common paper for the entire want of stamped, on the 8th day of June, 1846.

PIO PICO.

JOSÉ MATIAS MORENO, Secretary ad interim.
This patent is entered in the respective book.

MORENO."

The proof of the authenticity of the grant is by the testimony of Nicholas A. Den, to the genuineness of the signatures of Pio Pico, Gov ernor, and of José Matias Moreno, the Secre tary. And a copy of the grant in the nature of an espediente, certified from the archives in possession of the Surveyor-General of California. Connected with this copy of the grant and cer tified along with it, is a copy of a proclamation of Governor Pio Pico without any date, but stating facts which show it to have been issued after the 7th of July, 1846. The proclamation is as follows, viz.:

Art. 3. Should the government, by virtue of this authority, find that in order to prevent the total ruin which threatens said Missions, it will be necessary to sell them to private persons; this shall be done at public auction, the customary notice being previously given."

The only authority for the sale alleged in the grant, is that of "the Supreme Ruler of the Nation," ," "to provide measures that may assist in the common defense in case of foreign invasion, &c."

The other facts in the case are stated in the opinion.

Messrs. J. A. Wills and Edward Bates,
Atty.-Gen., for the United States:
This claim must be rejected.

I. Because, supposing it genuine, it is not formally proved.

No evidence of the authenticity of the grant has been offered, but secondary evidence of the

68 U.S.

"During the continuance of the war, the conqueror in possession has only a usufructuThere is no evidence to show that the pre-ary right, and the latent title of the former liminary condition required by the Departmental Assembly, dated March 10th, 1846, Articles 1 to 3 inclusive, was ever complied with. The very grant itself does not pretend that it was fulfilled. As a special authority, it should have been strictly followed.

ANN