998.

298.

considered some of the grants as being of the character to which the limitation applied, and did not so consider others, though they included immense areas. But whether, as a matter of fact, this was a grant not limited in quantity by the Mexican decree of 1824, or whether it was a grant which in strict law would have been held by the Mexican government, if it had continued in the ownership of the property, to have been subject to that limitation, it is not necessary to decide at this time. By the treaty of Guadalupe Hidalgo, under which the United States acquired the right of property in all the publio lands of that portion of New Mexico which was ceded to this country, it became its right, it had the authority, and it engaged itself by that treaty, to confirm valid Mexican grants. If, therefore, the great surplus which it is claimed was conveyed by its patent to Beaubien and Miranda was the property of the United States, and congress, acting in its sovereign capacity upon the question of the validity of the grant, chose to treat it as valid for the boundaries given to it by the Mexican governor, it is not for the judicial department of this government to controvert their power to do so. Tameling v. United States Freehold Co., 93 U. S. 644.

This case of Tameling, while it cannot be said to be conclusive of the one now before us, for the reason that that was an action of ejectment founded upon a title confirmed by an act of congress, in which the title could not be collaterally assailed for fraud or mistake, and the present is a suit attacking the patent, and the survey upon which it issued, directly by a bill in chancery to set them aside for such fraud and mistake, still the opinion announces principles which, as applicable to this case, and as regards the question of the extent of the grant, it would seem should govern it. The title in that case was confirmed to Tameling's predecessor in interest by the same act which confirmed the grant now in question to Beaubien and Miranda, the one being No. 14 and the other No. 15, as enumerated in the section of the statute already recited. In regard to that statute, and its effect upon the title confirmed by it, this court (page 662) says: “No jurisdiction over such claims in New Mexico was conferred upon the courts; but the surveyor general, in the exercise of the authority with which he was invested, decides them in the first instance. The final action on each claim reserved to congress is, of course, conclusive, and therefore not subject to review in this or any other forum. It is obviously not the duty of this court to sit in judgment upon either the recital of matters of fact by the surveyor general, or his decision declaring the validity of the grant. They are embodied in his report, which was laid before congress for its consideration and action. * * *Congress acted upon the claim as recommended for confirmation by the surveyor general.' The confirmation being absolute and unconditional, without any lim itation as to quantity, we must regard it as effectual and operative for the entire tract. The plaintiff in error insists that, under the Mexican colonization laws in force when the grant was made, not more than eleven square leagues for each petitioner could be lawfully granted. As there were in the present instance but two petitioners, and the land within the boundaries in question is largely in excess of that quantity, the invalidity of the grant has been earnestly and elaborately pressed upon our attention. This was a matter for the consideration of congress; and we deem ourselves concluded by the action of that body. The phraseology of the confirmatory act is, in our opinion, explicit and unequivocal."

It will be seen that the same question was raised in that case as in this in regard to the effect of the decree of the Mexican congress of 1824 in limiting the extent of the grant, which by its boundaries very largely exceeded the quantity which the two petitioners in that case, as in this, would be entitled to. The cases were Nos. 14 and 15 out of a series of 18 or 20. They were confirmed by the same section of the same statute, and were in immediate contiguity in the context. In both there were two claimants under the same

grant, who would have been entitled, under the decree of 1824, if applicable to the case, to 22 square leagues; that is, to 11 square leagues each. They were recommended for confirmation by the same surveyor general, who had investigated the titles, and who was authorized by the statute which created his office to pass upon the extent as well as the validity of the grants. The question was, therefore, in the Tameling Case precisely the same as in the present, and it is not perceived how the questions of reforming the grant by a direct proceeding in chancery, and giving a construction to it in an action of ejectment, can be decided upon any different principles. If the Mexican government had no power to grant anything beyond 22 square leagues in either case, the excess of the grant beyond that was void. This objection could as well be taken in an action of ejectment, where no particular 22 leagues had been set apart out of the much larger grant covered by the boundaries, as it could by a bill in chancery to set aside or correct the patent. The principles of law applicable to the issue are the same in both cases, and the declaration of the court in the Tameling Case, that this was matter for the consideration of congress, and it deemed itself concluded by the action of that body, is as applicable to the present case as it was to that.

The argument is here much pressed that the power of the surveyor general of New Mexico, in investigating and reporting upon these Mexican grants, was limited to ascertaining the validity of the claim as a grant by the Mexican government, and not to its extent, and that the act of congress confirming the report of that officer, and confirming the grant, was not intended to be conclusive in regard to the boundaries or the quantity. But section 8 of the act of July 22, 1854, (10 U. S. St. at Large, 308,) under which the report of the surveyor general was made in regard to these claims, directs him to ascertain the extent, as well as other elements of the claims to be referred to him. The language of that section is as follows:

"That it shall be the duty of the surveyor general, under such instructions as may be given by the secretary of the interior, to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico; and for this purpose may issue notices, summon witnesses, administer oaths, and do and perform all other necessary acts in the premises. He shall make a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same under the laws, usages, and customs of the country before its cession to the United States."

In the present case the surveyor general had before him, not only the original grant of Armijo to Beaubien and Miranda, but he had the record of the juridical possession delivered to the grantees, according to the laws of Mexico on that subject, made by the justice of the peace Cornelio Vigil, accompanied by a map or diseno laying down with at least attempted particularity and precision the complete boundaries of this tract of land. So that the surveyor general not only had the authority to determine the extent of the grant, as well as its validity, but he had the means of ascertaining it. Upon what argument, therefore, it can be held that the surveyor general, with this entire matter before him, and with the means of ascertaining or describing with precision the extent of the grant to these parties, should be held not to have passed upon it, but simply upon the validity of the original transaction with Armijo, is not readily to be perceived. The surveyor general was not certainly of the class of officers to whom would have been confided by law the mere question of the legal validity of a grant made by a Mexican governor to a Mexican citizen. Others could do that as well as he when the facts were laid before them. But as his office was a surveying office, and was designed to ascertain the location and the extent of grants by an examination of the maps and surveys,

and making new surveys if necessary, a function pre-eminently appurtenant to his office, he must be supposed to have reported upon all that was proper for consideration in its confirmation. And when the congress of the United States, after a full investigation, and elaborate reports by its committees, confirmed these grants "as recommended for confirmation by the surveyor general" of the territory, we must suppose that it was intended to be a full and

870

1. Sketch from the desino of the Beaubien and Miranda grant, extended on the

lines of United States surveys.

complete confirmation, as regards the legal validity, fairness, and honesty of the grant, as well as its extent. This is made the more emphatic by the two or three cases in which the extent and location of the grant are specially limited in the very act of confirmation included in the same section and the same sentence.

It is observable that, in the argument of the counsel for the United States in this case, the boundaries of this tract of land are constantly spoken of as outboundaries, within which a smaller quantity of land may be located, as the real grant in this case. This phrase, "out-boundary," has its proper use in regard to certain classes of Mexican grants, but it is wholly inapplicable and misleading as referring to the one now under consideration. There were grants* made by officers of the Mexican government which were limited in quantity by the terms of the grant, and which the grantee might locate at any place he chose inside of a much larger quantity of land, the limits of which were correctly described as “out-boundaries." In such cases the use of the term, as describing the larger and greater tract within which the smaller and more limited quantity might be selected by the grantee, had its just and well-understood meaning. Grants of that class were quite numerous, and sometimes half a dozen grants to different individuals would be made within the same out-boundaries, and occasionally there are cases where these smaller portions must include a dwelling or some improvement held by the grantee at the time. The whole of this subject is very well considered and explained by Justice FIELD in the opinion of this court in the case of Hornsby v. U. S., 10 Wall. 224. He says: "As we have had occasion to oberve in several instances, [referring to Higueras v. U. S., 5 Wall. 828; Alviso v. U. S., 8 Wall. 339,] grants of the public domain of Mexico, made by governors of the department of California, were of three kinds: (1) Grants by specific boundaries, where the donee was entitled to the entire tract described; (2) grants by quantity, as of one or more leagues situated at some designated place, or within a larger tract described by out-boundaries, where the donee was entitled out of the general tract only to the quantity specified; and (3) grants of places by name, where the donee was entitled to the tract named according to the limits, as shown by its settlement and possession, or other competent evidence."

It is entirely clear that the grant to Beaubien and Miranda was a grant of the first class, a grant by specific boundaries, where the donee was entitled to the entire tract described. There is nothing in the language of the grant, nor in the petition, nor in anything connected with it, nor in the act of juridical possession, to indicate that either Gov. Armijo or Beaubien and Miranda, or the officer who delivered the juridical possession to them, had any idea or conception that the grantees were not to have all the land within the boundaries established by that juridical possession. Hence the idea of counsel that there were only 22 square leagues, or 97,424.08 acres, granted within this great boundary, is entirely unsupported; the case not being one of a grant of a more limited quantity within a large out-boundary. While the argument, whether sound or unsound, that the grant could only be unheld for the 22 square leagues, may be pressed now against the validity of the grant in excess of that amount, there was evidently no such thought in the minds of the parties when it was made.

It is not inappropriate here to allude to an argument suggested, but not much pressed, by counsel, that, in the petition of Beaubien against the intrusion of the priest Martinez, he speaks of his own grant as being only about 15 leagues. We think a critical examination of that petition will show that he is speaking of the claim of Martinez and his associates as amounting in all to about 15 leagues, and not of his own claim under the grant.

We are therefore of opinion that the extent of this grant, as confirmed by congress, is not limited to the 22 square leagues, according to the argument of counsel, and that the act of congress makes valid the title under the patent

of the United States, unless proved to be otherwise, by reason of error or mistake in the survey, or fraud in its procurement.

As regards the survey on which the patent was issued, and which is made a part of the patent, under the seal of the United States and the signature of the president, it is to be observed that the evidence shows that the general land-office made every effort to have it accurate. The survey was made by authority of the commissioner of that office, under the supervision of the surveyor general of New Mexico. A survey had been previously made by W. W. Griffin, who was employed by the claimants to make it, because the then secretary of the interior had declined to order a survey. This survey was completed during the year 1870; and, though purely a private enterprise and unofficial, the plat and field-notes were deposited in the general land-office by the claimant, presumably for the information of the government as to the exact location of the exterior lines as claimed by the owners of the grant. The land-office having afterwards, under the influence of the decision of the supreme court in Tameling v. United States Freehold Co., supra, determined that it was its duty to ascertain the extent of this grant, and to issue a patent for it, was about issuing orders to the surveyor general of New Mexico to have this grant surveyed, when it was suggested by the claimants that the commissioner should adopt the survey of Griffin, above referred to. He, however, declined to pursue this course-First, because he did not think it was a proper procedure; and, second, because he did not think that the eastern and northern boundaries had been correctly located by the Griffin survey. The surveyor general thereupon made a contract for the work with Elkins and Marmon, and the commissioner of the general land-office, in approving this contract, gave his own directions as to how these boundaries should be located, and furnished for the guidance of the surveyors an explanatory diagram. This survey was made in the autumn of 1877. The map or plat of it is a part of the record, together with the proofs taken by the surveyors to establish the calls of the grant. Contests were initiated before the surveyor general upon the validity of this survey by parties who were interested against it, and the case was fully heard on testimony, which testimony was filed with the commissioner of the general land-office. He finally approved the survey, and the patent was issued in accordance with it on May 19, 1879.

It is attempted in argument here to point out many errors and mistakes as objections to the accuracy of this survey. There is no reason to doubt that the surveyor general and the officers employed by him, and the commissioner of the general land-office, all of whom gave particular attention to this survey, were well informed on the subject. They knew that it was an immense tract of land, that it would be the subject of grave criticism, and they knew more about it, and were better capable of forming a judgment of the correctness of that survey, than this court can be. We may add that, after all the research, industry, and ability of special counsel for the government, when the testimony taken in the case to prove these errors, and the record of the juridical possession, have been considered with the best judgment that we can bring to them, we are not satisfied that the survey is in any essential particular incorrect, but, on the whole, we believe that it substantially conforms to the grant originally made by Gov. Armijo.

The principal point in dispute to which the argument of counsel has been addressed, is that the part of the land included in this survey north of the present line which divides the state of Colorado and the territory of New Mexico was improperly included within the survey. In other words, it is argued that this northern line of the survey should have been run from the east to the west upon the summits of the Raton mountains. This range of hills, rather than mountains, seems to project itself as a spur from the great range running north and south, which divides the waters that flow east from those which dow west. Running almost due east as you ascend along the foot of this

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