record shows, and the defendants by their pleadings admit, that the plaintiff claims under a patent of the United States. Some of the questions in the case have been determined heretofore upon demurrers to former answers. The questions now to be considered arise upon demurrer to the third amended answer. By this pleading, the defendants seek to attack, in this action of ejectment, the patent under which the plaintiff claims. They do so upon two grounds, substantially. The answer is quite voluminous, but its allegations may all be summarized under two heads:

First-That the patent was obtained by the patentee, Mr. Starr, under whom the plaintiff's claim, by fraud, conspiracy, bribery and perjury.

Second-Defendants plead, as an estoppel, certain facts, to which I will refer presently.

and there are none in conflict with it-patent for any public land subject to sale, there can be no doubt that the Court by pre-emption or otherwise, is conclusive below erred in admitting the record of the of the legal title, must be admitted on the proceedings upon which the patent was is- principle above stated, and in all Courts and sued, in order to impeach its validity. in all forms of judicial proceedings where The judgment of the department, upon this title must control, either by reason of their sufficiency, was not, as already stated, the limited powers of the Court or the open to contestation. If, in issuing a pat- essential character of the proceeding, no ent, its officers took mistaken views of the inquiry can be permitted into the circumlaw, or drew erroneous conclusions from stances under which it was obtained. On the evidence, or acted from imperfect the other hand, there has always existed views of their duty, or even from corrupt in the Courts of equity the power, in cermotives, a Court of law can afford no rem- tain classes of cases, to inquire into and edy to a party alleging that he is thereby correct mistakes, injustice and wrong in aggrieved. He must resort to a Court of both judicial and executive action, howequity for relief, and even there his com- ever solemn the form which the result of plaint cannot be heard unless he connect that action may assume when it invades himself with the original source of title, private rights; and, by virtue of this so as to be able to aver that his rights are power, the final judgments of Courts of injuriously affected by the existence of law have been annulled or modified, and the patent; and he must possess such patents and other important instruments equities as will control the legal title in issuing from the Crown or other executive the patentee's hands. (Boggs vs. Merced branch of the Government, have been Mining Company, 14 Cal. 363-4). It does corrected, or declared void, or other relief not lie in the mouth of a stranger to the granted." title to complain of the act of the Govern- It is hardly necessary to say that an ment with respect to it. If the Govern- action of ejectment is pre-eminently an ment is dissatisfied, it can, on its own ac-action in which the legal title must precount, authorize proceedings to vacate the vail, and, therefore, one in which, accordpatent or limit its operation." ing to this ruling, the patent cannot be attacked collaterally.

With regard to the defense that the patent was obtained by fraud, etc., it may be observed that many of the allegations of the answer are too general in their character to be sufficient. It is, of course, not enough to say in general terms, that an instrument has been obtained or procured by fraud, perjury or conspiracy. The pleader must state facts which will enable And proceeding, the Court say: "The the Court, and not the pleader, to deter- case at bar, then, is reduced to the quesmine whether there is a case of fraud, or tion, whether the patent to Starr is void conspiracy, or perjury. Still, we are of on its face, that is, whether, read in the the opinion that there are, in this answer, light of existing law, it is seen to be inallegations sufficient to call for a reply, if valid. It does not come within any of the it be true, as claimed by the counsel for exceptions mentioned in the cases cited. defendant, that a patent of the United The lands it purports to convey are minStates in an action of ejectment can be at-eral, and were a part of the public domain. tacked collaterally for fraud. And this The law of Congress had provided for makes it necessary to determine that their sale. The proper officers of the question. It is a question about which Land Department supervised the proceed the authorities are not in entire harmony.ings. It bears the signature of the PresiBut we are, of course, concluded by the dent, or rather of the officer authorized by decisions of the Supreme Court of the law to place the President's signature to United States, and it is therefore proper that we should refer to the decisions of that Court, and determine whether the question is settled, so far as this Court is concerned.

Another action of ejectment, arising upon this identical patent, was brought in this Court some time since, and was tried here. The Court in that case admitted certain evidence tending to show that the officers of the Land Department had issued the patent improperly and erroneously. The judgment of the Court in that case has been reversed, and an elaborate opinion, pronounced by Mr. Justice Field, is now before us. In that opinion, the doctrine is laid down so clearly and emphatically as to leave no room for doubt, that in an action of ejectment, the defendant cannot be permitted to attack a patent, even upon the ground of fraud. He must resort to a Court of equity.

After citing numerous cases in the Supreme Court of the United States, the opinion in the case just referred to proceeds as follows:

"According to the doctrine thus expressed, and the cases cited in its support

it-which is the same thing-it is properly
countersigned, and the seal of the General
Land Office is attached to it. It s regu-
lar on its face, unless some limitation in
the law, as to the extent of a mining claim
which can be patented, has been disre-
garded."

Without reading further from that opin-
ion, it is sufficient to say that the doctrine
is fully and elaborately discussed, and nu-
merous cases are cited as establishing the
doctrine that a patent of the United
States, in an action of ejectment, cannot be
collaterally attacked.

Governed and controlled, therefore, by the decisions of the Supreme Court of the United States, we are bound to say that so much of this answer as sets up fraud, conspiracy, etc., is bad, and that the demurrer must therefore be sustained.

I come now to the consideration of that part of the answer in which the defendant pleads estoppel. It is somewhat voluminous, but I will state in condensed form the substance, as I understand it, of the pleading.

The answer demurred to, so far as this question of estoppel is concerned, pleads certain facts, which, it is claimed, should estop plaintiff to recover in this case. Many of these facts tend only to show fraud, and are therefore, under the doctrine already announced, not admissible in this form of action. Eliminating the allegations falling within this description, we have remaining in substance the following:

First-The defendants are owners of and entitled to the possession of the property in controversy, by virtue of prior, adverse and exclusive possession of the the same, as part of a town site on the public domain.

Second-That Starr obtained the mining patent, under which plaintiff claims title, for 164 61-100 acres, all of which was included within the town site and city of

The cases referred to may be mentioned, although I shall not take the time to read from them or comment upon them: Pope's Lessees us. Wendall, 9 Cranch, 87; Patterson vs. Winn, 11 Wheaton, 380; Hoof- Leadville. nagle vs. Anderson, 7 Wheaton, 212; Third-That said Starr claimed under Boardman vs. Reed, 6 Peters, 342; Bag-placer mining claims which had their innell vs. Broderick, 13 Peters, 448; John- ception in favor of his grantors in 1800, son vs. Towsley, 13 Wallace, 72; Moore the claims of Starr himself dating from vs. Robbins. 96 United States, 585. August, 1877.

In the case of Johnson vs. Towsley, the doctrine was stated by Mr. Justice Miller, in these words (13 Wallace, 83); "That the action of the Land Office, in issuing a

Fourth-That, after the inception of these claims, and prior to the issuance of the patent to Starr upon them, the city of Leadville grew to a city of 20,000 people,

and the property greatly increased in value.

Fifth-That, during that time, Starr, the patentee, was living in Leadville and witnessed the improvements that were being made, and the large sums of money being expended by defendants, as settlers on the lots now in controversy; and during all said time, said Starr and his grantors stood by and kept quiet in regard to his or their ownership of said mining claims, and confederated with certain other parties in interest to stand by and secrete all their claims to ownership and all their efforts to obtain a patent.

Sixth-That plaintiff had an interest in the Starr patent, and by its general manager, August Myers, also stood by and saw the property improved by defendants, and never at any time notified defendants that the plaintiff had made or would make any claim to said land, but, on the contrary, secreted and concealed the same.

Assuming, however, that for the purposes of this decision the aefendants did stand in the relation of owners of this land at the time I do not think this principle of the law of estoppel can be carried so far as to hold that even the owner of real estate who stands by and sees another make improvements upon it, and Seventh-That said Myers, general makes no objection, is thereby estopped agent, and one Harrison, the president of thereafter to claim the title of the real esplaintiff company, conspired and com- tate; he may be estopped to claim the bined with Starr to secrete and conceal improvements, but I do not think that he their claims, with the intention of allowing is estopped to claim the title in an action the defendants to go on and spend their of ejectment. money, in making valuable improvements,

be invoked in a case of this character; for them that after obtaining a patent, it would it is not claimed, and cannot be, that at sell to them for a nominal price, and the time these plaintiffs are charged with would not disturb them in their posseshaving stood by and advised the erection sion. This is not a good plea of estoppel. of these improvements, they were the It lacks some of the essential elements of owners of this property; and I have never such a plea. It alleges an arrangement, heard it asserted before that a party who understanding or agreement, entered into intends to purchase land, or who has ap- confessedly with full notice on the part of plied to the owner for the right to defendants that Starr had applied for a purchase it, stands in stands in the position patent, with a view to obtaining title to of ownership within the meaning of this the land, and by which defendants were to principle, so that he is bound to warn obtain that title from Starr, or plaintiff, all persons to make no improvements after it should be vested in one or both of upon such land, at the peril of losing them. How, then, can it be set up as an them. estoppel to prevent plaintiff from recovering that title in ejectment? Defendants did not act in ignorance of the facts, but with notice, relying upon the promise of plaintiffs to convey title upon certain terms and conditions after obtaining it. If, therefore, the arrangement amounted to anything, it is simply a contract under which, if it be valid and binding, defendants may be entitled to have a remedy. If it be a contract capable of specific perfor mance, it must be in a Court of equity. If it be one upon which defendants are entitled to recover damages, the proper action must be brought for that purpose. There is another reason why it is diffi. As the arrangement, whatever it was. cult to hold that this doctrine of estoppel clearly contemplated the obtaining of the Eighth-It is, however, admitted that can apply to a case like this; the law pre- legal title by plaintiff, it cannot be set up defendants were notified of the application scribes the mode and manner by which en- by way of estoppel in the present action. for a patent made by Starr, and it is tries of the public mining lands are to be There is still another branch of the anaverred that after defendants found that made, and, among other things, it is pro-swer, in which there is a counter-claim, said application included land situated in vided by section 2335 of the Revised Stat- based upon the value of these improvesaidcity of Leadville, the said Starr and utes of the United States that an applicant ments. Without going much into that. Myers and Harrison, through their attor- for a mineral patent must post a plat of we overrule the demurrer to that part of ney, one Hereford, assured defendants that the land and notice of his application for the answer, and reserve the question as to in case said patent should be obtained, de- a patent in a conspicuous place on the what the law may be until the evidence fendants would not be disturbed or inter- land embraced in such plat. Now, it must shall be produced. fered with in their right and possession, be presumed that this law was complied and at most, only a nominal sum would be expected or demanded of defendants, and in no case to exceed twenty-five dollars per lot, andadvised defendants to go on making improvements, and that they did go on, relying upon these assurances, and made valuable improvements, etc.

etc.

Ninth. That after obtaining the patent, plaintiff gave notice that it would claim the full value of the lots.

It will be observed that the plea of estoppel rests upon two separate allegations: The first is, that the plaintiff stood by and saw defendants make improvements upon these lots, and failed to make known to the defendants the fact that they (the plaintiffs) were seeking to obtain a patent for the land upon which defendants were making the improvements.

The principle sought to be invoked, I apprehend, upon this branch of the case, is the very familiar rule of the law of estoppel, that if the owner of an estate stands by and sees another erect improvements on the estate in the belief that he has the right to do so, and does not interpose to prevent the work, he will not be permitted to claim said improvements after they are erected.

with; and if so, how can it be said that
the parties applying for the patent gave
no notice, no warning, to anybody? The
very fact of their giving notice was of it-
self a warning to all who were upon the
land, or were about to erect improvements
upon it, that these parties were applying
for a patent, and were seeking to obtain
the title. Moreover, it is admitted by this
answer that they did, in fact, ascertain the
fact of this application for a patent. Now,
one of the familiar rules with regard to
estoppel, which we all understand per-
fectly, is this: That the party to whom
the representations are made must be ig-
norant of the truth of the matter about
which they are made. If he knows the
fact, and chooses to take his chances, the
other party is not estopped.

For these reasons, then, we are con-
strained to hold that the allegation that
the plaintiffs and their grantors stood by
while these improvements were being
made, and made no objection, does not
amount to a good plea of estoppel in this
action of ejectment.

The other allegation under this head is that, after the defendants were notified and informed of this application for patIn the first place, it is extremely doubt-ent, they had an arrangement with the ful whether that principle of the law can plaintiff, by which the plaintiff assured

In view of the importance of this case, and of the fact, as we are advised, that it will affect the decision in numerous other cases, we have given such consideration to it as was possible under the circumstances. If we are wrong in any of the conclusions which have been announced, the record will be in good shape for the defendants to present the question to the Supreme Court, where the whole matter can be reviewed, and, perhaps, in the best possible form for the defendants,being an issue upou demurrer, which will raise all the questions they desire to have determined.

The demurrer to so much of the answer as sets up fraud and estoppel is sustained. The demurrer to the counter-claim is over-ruled.

NINTH CIRCUIT, DISTRICT OF CALI-
FORNIA.

UNITED STATES VS. CENTRAL PACIFIC RAIL-
ROAD Co.

Indispensable Parties.-The owners of the land
at the time of filing a bill in equity to vacate
a patent of the United States, are indispen-
sable parties to the bill; and when it is filed
against the patentee alone after he has con-
veyed the land and ceased to have any interest
in it, the bill will be dismissed for want of
necessary parties.

Moquelamos Grant.-Where a claim was filed for the confirmation of a Mexican grant of eleven leagues, within exterior boundaries

containing three times that quantity of land, point of uncertainty is the location of the vate entry to any parties desiring to purand the Surveyor-General in extending the eastern exterior boundary-" the adjacent chase, in the same manner as all other surpublic surveys found the grant within the sphere of his operations, and surveyed it in ridge of mountains "-and its proper lo- veyed public lands are open to entry after advance of confirmation, in pursuance of the cation would depend upon where the ridge having been offered at public sale in purstatute of 1852 (10 Stat. 90), reserving nearly is situated, and what points of the ridge suance of proclamation by the President; double the quantity necessary to satisfy the are to be taken for the line. The range and many of them were so entered. In grant, which survey was acquiesced in by the line of the public surveys, between ranges September, 1864, Messrs. Stanley & Hayes, claimant, and surveyed into sections, platted, and returned to the land office the surplus as 7 and 8, crosses the tract now claimed by attorneys for the claimant, in the case public lands, which surplus was thereafter the complainant to be within the exterior pending in the United States Courts, for treated as public lands by the Government, boundaries of the Moquelamos grant, on confirmation of the Moquelamos grant, adopened to pre-emption, offered for public sale such a line as leaves about ninety thousand dressed a communication, bearing date by proclamation of the President, and after-acres to the west of said range line, and September 22, 1864, to the Surveyor-Genwards opened to private entry and homesteads, patents being issued therefor for all about sixty thousand acres to the east, eral of the United States for the State of such purposes, and to satisfy a congressional making about one hundred and fifty thou- California, notifying him that the case was grant to the Central Pacific Railroad Com- sand acres in the whole. The said range pending on appeal to the United States pany it seems, that such surplus will be line, between ranges 7 and 8, lies further Supreme Court; that the land claimed lay regarded as emancipated from the claim of east than any point in the easternmost line on the Moquelamos river, and "includes the Spanish grant, and that the patents issued therefor in the usual course of the of the lands of Mr. Gulnac-the Rancho and covers the land embraced in township ordinary business of the land office, and to el Campo de las Franceses-as finally (2) two north, ranges five, six, and seven give effect to congressional grants as public located; and the final location corresponds east, Mount Diablo meridian; also township lands, will be regarded as valid. Ex parte Surveys as Evidence. It seems that an filed in the case. very well with the diseno of the grant (3) three north, ranges five, six, and seven So that, between the east, Mount Diablo meridian; also townex parte survey, made by direction of the Commissioner of the Land Office, of the exte- said range line on the east, the lands of ship (4) four north, range six east, Mount rior boundaries of a rejected Spanish grant Mr. Gulnac, as granted and located on Diablo meridian; part of township south many years after the rejection, and after the the south, the estuaries of the shore on the of Moquelumne river; also township (4) lands embraced in the supposed grant have west, and the Moquelumne river on the four north, range seven east, Mount Diabeen regularly officially surveyed and disnorth, there are about ninety thousand blo meridian; part of township south of posed of as public lands, is not admissible as evidence on the part of the Government in a acres of land, or about forty thousand Moquelumne river; also township (4) four suit to vacate a patent. acres more than enough to satisfy the north, range five east, Mount Diablo megrant-eleven square leagues, containing ridian; part of township south of Moqueforty-eight thousand eight hundred lumne river.” twenty-five and a fraction acres-or nearly double the amount called for by the grant.

Sawyer, Circuit Judge:

This is a bill in equity to vacate and annul five several patents issued by the United States to the defendant under the Act of Congress granting land to aid in the construction of the Central Pacific Railroad, for something over fourteen acres of land in the aggregate, on the ground that the patents were issued by mistake for lands not embraced in the grant by Congress.

66

They further notified the Surveyor-General that the lands thus described were To the east of said range line, between "not subject to entry or pre-emption," and ranges 7 and 8, there are about sixty requested him to suspend all proceedings thousand acres claimed by complainant to in regard to pre-emption of "said lands, be within the exterior boundaries of the or any part thereof, until the final deterMoquelamos grant, bounded on the north mination of the claim." On the notice is by the Moquelumne, and on the south by endorsed: "Suspended September 21, the Calaveras rivers; but no part of it is 1864," one day earlier than the date of the The patents respectively bear date bounded by Mr. Gulnac's land, either as notice. One of the dates is, doubtless, erApril 9, 1870, April 3, 1872, February 28, finally located, or as shown on the diseno roneous. On the same day the said Sur1874, November 23, 1875, and June 6, to the grant-said Gulnac's land all lying veyor-General addressed to S. F. Nye, 1879. The lands are all odd sections, and to the westward of said range line. About Register of the land office at Stockton, a lie within the limits of the grant desig- two-thirds of the lands now in question communication, bearing date September nated in the Act of Congress. On Sep- lie in that portion of the assumed Mosque- 21, 1864, informing him that the towntember 22, 1852, Andreas Pico presented lamos grant, which is east of said range ships and plats of townships, including to the Board of Land Commissioners for line, between ranges 7 and 8, and about the lands described in the notice and resettling titles to lands in California, in one-third to the west of said range line. quest of Messrs. Stanley & Hayes, giving pursuance of the Act of Congress of In 1852 and 1853, the township lines the same description as that contained in March 3, 1851, a petition for a confirma- were run by the United States Surveyor- the notice, were "suspended to await the tion of a claim to a grant of a tract of General, laying off all these lands within final determination of the boundaries of land embracing eleven square leagues, the boundaries of the Moquelamos grant, the Rancho Moquelamos, now pending becalled "Moquelamos." The description as claimed, into townships. In 1855, the fore the U. S. District Court." The claim in the grant, as set out in the petition, is section lines were run, and plats by the to the grant was finally rejected by the U. as follows: "Eleven square leagues on the surveys filed in the proper land office, for S. Supreme Court as fraudulent, February river Moquelumne, bordering upon the all lands lying east of said range line, be- 13, 1865; and thereupon, the Surveyornorth upon the southern shore of said tween ranges 7 and 8. From the time of General, on November 21, 1865, revoked river; on the cast upon the adjacent ridge the survey and filing of the plats, these said suspension. All of the lands described of mountains; on the south upon the land lands, east of said range line, were treated in said notice and request by Stanley & of Mr. Gulnac, and upon the west upon as all other surveyed public lands by the Hayes, in regard to which the surveys and the estuaries of the shore." There was no United States Land Office, and all gov-plats were suspended, lie to the west of diseno accompanying the grant. The ernment offices having anything to do with said range line, between said ranges 7 and grant to Gulnac, referred to as the south- them, and pre-emption claims, and, after 8. and within and constitute the ninety ern boundary, was surveyed in February the passage of the homestead laws, home- thousand acres lying west of that line. and March, 1858, and the location became steads, were recognized, proved up, allowed Thus it appears, that the attorneys of the final by dismissal of the appeal in Febru- and patented. In February-on the 15th claimant themselves limited their claim to ary, 1862, before the congressional grant and 16th of February, 1859-upon public lands lying west of said range line, between to the railroad company by Congress. proclamation made by the President of the ranges 7 and 8, and only looked to those Thus, at the time of the congressional United States, these lands were offered at lands to satisfy this grant in case of a congrant, the northern, western and southern public sale at the land office at Stockton, firmation. There is no evidence that there exterior boundaries of the Moquelamos and some sold and patented; and after such was any other action on the part of the grant were fixed and certain, and the only public sale, the lands were opened for pri- Government, or any of its officers, reserving

said lands or suspending action with ref authorizes the location of confirmed grants, and 8, which has in fact, Gulnac's land for erence to pre-emptions, homesteads, sale, but I know of none authorizing the loca- a southern boundary, as is necessary to or entry of them, or any part thereof, from tion of rejected grants for any purpose, satisfy the grant. Besides, the Govern the time of their survey in 1852 and 1855, and especially for the location of the ex- ment of the United States surveyed the down to the date of the withdrawal in con- terior boundaries of rejected Mexican lands east of said range line as public sequence of filing the plat of the location grants many years after the rejection, em- lanes, and in all its departments treated of the Central Pacific Railroad, January bracing three times the amount of land them in all respects like other surveyed 31, 1865, which was only thirteen days be- called for by the grant. The lands were public lands, opening them to pre-emption, fore the final rejection of the Moquelamos already officially surveyed, and all or offering them for public sale upon procla grant, after it had been pending for about nearly all, disposed of. The main purpose mation by the President, and afterwards thirteen years. With reference to the land would seem to have been to make evi- to private entry and for homesteads, and lying east of the range line, between ranges dience for this contemplated case. Cer-actually patented all, or nearly all, which 7 and 8, the certificate of Otis Perrin, Re-tainly, the United States Land Office can had gone into second, and still other ceiver, and Geo. A. McKenzie, Register of no more properly thus make legal testi- hands before this bill was filed, and rethe Stockton Land Office, is as follows: mony ex parte against its grantees to de- served an ample amount within the undis"We do hereby certify that the records of feat grants already made in contemplated puted exterior boundaries for the satisfacthis office show that no land was ever suits, than any other grantor. tion of the grant. withdrawn or reserved for the Moquelamos grant claim,' east of the line dividing ranges seven (7) and eight (8) east of Mount Diablo meridian."

The answer alleges, and the uncontra- The Appropriation Act of August 31, dicted testimony also establishes the fact, 1852, appears to authorize proceedings rethat all the lands included in the patents stricting the location to smaller limits in question were conveyed by the Central than the exterior boundaries, and surveyPacific Railroad Company, to bona fide ing the surplus as public lands. The propurchasers, before the filing of this bill- vision of the statute is: "For surveying And it also appears, that a very large por- private claims in California which may tion, if not all the lands, were also con- have been presented in good faith to the veyed by the grantees of the defendant to Board of Land Commissioners, twentyvarious parties, so that now the lands are two thousand five hundred dollars. Proin the hands of numerous purchasers, vided, that the authority hereby conferred many of them holding in small parcels. on the Surveyor-General shall apply only At the commencement of this suit, there- to such unconfirmed cases as in the gradfore, the Central Pacific Railroad Com-ual extension of the lines of the public pany, defendant, did not own an acre of surveys he shall find within the immediate the land in question, and it had no interest whatever in this controversy.

sphere of his operations and which he is satisfied ought to be respected, and actually surveyed in advance of confirmation."

Thus it appears affirmatively by the uncontradicted evidence, that prior to the issuing of the patents in question, no action of any kind was ever taken by the Government, or any of its officers, to reserve any portion of this land east of said range line for the satisfaction of the Moquelamos grant, or for any other purpose except to satisfy the railroad grant in question. On the contrary, these lands were townshiped in 1852, sectionized in 1855, thenceforth opened to pre-emption till February, 1859, when they were offered for public sale, and some of them In 1876, the Supreme Court decided the sold at Stockton in pursuance of the pro- case of Newhall vs. Sanger, (92 U. S. 761,) In this case there was a claim for the clamation of the President of the United in which it was held that the odd sections unconfirmed Moquelamos grant pending States, and thereafter held open for home- within the exterior boundaries of the al- before the Board of Land Commissioners, steads, pre-emption, and private entry, leged Mexican grant called Moquelamos, which," in the gradual extension of the like all other public lands of the United the claim for confirmation of which had lines of the public surveys," the SurveyorStates. There is no legal evidence in the not been finally determined at the time of General seems to have found" within the case that the eastern exterior boundary the withdrawal of the lands by the Secre- immediate sphere of his operations, and of the grant, or the "adjacent range of tary of the Interior in January, 1865, for which he was satisfied ought to be respected the mountains" is in fact east of the the Central Pacific Railroad Company, and actually surveyed in advance of said range line, between ranges 7 and were not "public lands" within the mean-confirmation." He accordingly surveyed 8. All the evidence indicates that the ing of the Act of Congress, granting lands it, leaving an ample quantity of by far Gulnac claim never extended east of to that corporation, and were, therefore, that line, and there is nearly double the not included in that grant-a majority of amount necessary to satisfy the Moquel- the Justices taking a different view of that amos grant, west of that line, that is, in question from that taken, and still confifact, bounded on the south by the Gulnac dently entertained by me, and reversing grant. The evidence claimed by com- the judgment of this Court on that ground. plainant to be admissible to show the loca- That decision settles the law upon that tion of the " adjacent ridge of mountains," point, so far as this Court is concerned, and the eastern exterior boundary of the and is controlling in all cases to which it Moquelamos grant, is a certified copy of is fairly applicable, and it is probably apa plat of a survey and location of that line plicable to all those lands embraced in filed in the office of the Surveyor-General the patents now in question, lying west of of California, June 3, 1879, made in pur- the range line, between ranges 7 and 8. suance of the directions of the Commis- I think, however, that it ought not be held sioner of the General Land Office, bearing applicable to those lands situated to the date February 18, 1879. This proceeding east of said range line. The description is subsequent to the issue of these patents, of the Moquelamos grant is not very defiand wholly ex parte. The Moquelamos nite as to its eastern boundary. There is grant had been rejected as fraudulent no diseno to make it definite. The quanfourteen years before, and all the lands tity is limited to eleven square leagues, The claimant of the grant himself, also affected by the survey had been surveyed and its southern boundary is the land of as we have seen, by his counsel, limited into sections, and in all respects dealt Mr. Gulnac, and the eastern exterior his claim to the lands so reserved for the with and treated as public lands by all de- boundary, as claimed by complainant, purpose lying west of the said range line, partments of the Government for about would carry it some nine or ten miles east so that all parties in interest acquiesced twenty-four years. Nearly all, if not quite of the eastern boundary of Gulnac's claim, in limiting the eastern exterior boundary all, had actually been patented by the while there is nearly twice as much land of the land out of which the grant was to United States to somebody. The statute west of the range line, between ranges 7 be satisfied to the said range line.

the best and most valuable portion of the
land west of the range line mentioned, to
more than satisfy the grant, sectionizing
and platting the surplus-being that part
situate to the east of said range line-as
"public land," subject to be treated as other
public lands, and returning the surveys
and plats to the proper land office. This
proceeding seems to have been authorized
by the provision of the statute cited, and
to have emancipated that portion of the
land lying to the east of the range line,
between ranges 7 and 8 from any further
claim under the Moquelamos grant. If
that be the effect, then, there can be no
question that these lands, at least, were
subject to, and embraced in, the congres-
sional grant to the Central Pacific Rail-
road Company.

Certainly, if the doctrine of estoppel had the withdrawal for the railroad oc- Pacific Railroad Company is the only deapplies to any case as against the United curred two weeks later, the congressional fendant, and before the filing of the bill, States, it ought to be made applicable grant, under the law as it is, would have it had conveyed all the lands in question, here, where all parties, including the taken effect upon these lands. (Ryan vs. and ceased to have any interest in the claimant himself, for so many years C. P. R. R. Co., 5 Saw, 261, affirmed; 99 subject-matter in controversy. Not a peracquiesced in accepting said range line U. S. 382.) Yet the only difference in son who had any interest in the matters as the eastern exterior boundary of the the condition of the lands and the laws, in controversy when the bill was filed, has land within the land within which the as they were on the 12th and 14th of Feb- been made a party to this suit. The grant was to be located. Besides, as be- ruary, is, that on the intermediate day, Court is asked to vacate patents to large fore suggested, there is no sufficient legal the baleful shadow of an overhanging quantities of lands, held by numerous evidence as against the defendant, that fraud had been floated away by a final re- parties under these patents, without anythe eastern exterior boundary is, in fact, jection of the Moquelamos grant. On body having an interest in the lands being east of that line. But conceding this re- the 12th of February these lands were a party to the suit. The parties in intercent ex parte survey to be legal evidence, not, and on the 14th they were "public est are not only proper, but indispensable it surely is not entitled to greater weight lands," within the meaning of the Act parties. No decree can be rendered anthan the strictly official survey of 1855, of Congress. Yet there had been no nulling or affecting the title of parties to executed under the express authority of change in the title in the meantime. land without their presence. They are the statute of 1852 cited, by which the The rejection of the fraudulent claim entitled to their day in Court. (Shields eastern boundary of the tract out of which only determined judicially where the title vs. Barrows, 17 How. 130; Coiron vs. Milthe grant was to be satisfied was located was. It simply adjudged that the claim laudon, 19 Ib. 113; Barney vs. Baltimore, at the range line, between ranges 7 and was not valid, and, consequently, that the 6 Wal. 285; Ribon vs. Railroad Com8, and which was ever afterwards, till lands claimed then were, and that they panies, 16 Wal. 450; Railroad Co. vs. Orr, after issue of these patents, acted upon by always had been, a part of the public 18 Wal. 475.) The defendant in this suit the government, the claimant himself, and domain. There was no reservation for having no interest in the subject-matter the people at large, as properly located. any other purpose than to ascertain involved, is not even a necessary, if a Upon the facts disclosed in this case, it whether they belonged to the United proper, party to the bill to annul the seems hardly consistent with good faith States or to private parties, and there was patents. To vacate the patents on this on the part of the United States, and no necessity for a reservation for that bill, would be very much like foreclosing scarcely worthy a great nation, at this purpose. Had the claim been confirmed, a mortgage upon lands, in a suit against a late date, and after these lands have passed it would have taken suflicient land to sat-mortgagor not personally liable for the into the hands of numerous citizens as isfy the grant, whether reserved or not, debt secured, after he has conveyed the purchasers, to seek to vacate the patents as it would then have been adjudged to mortgaged lands, without making the upon which their titles rest. To many of belong to the grantee and not to the owner of the lands a party. All the inthese lands, especially to the west of the United States. The Act of Congress dispensable parties are omitted from the range line mentioned, a second patent has only granted, and only purported to bill, and those not necessary to be made already been issued by the United States, grant, lands that belonged to the United parties are sued. and some of the occupants, it is generally States, not those owned by private parties. understood, as a means of security from further annoyance, have acquired the title under both patents.

These observations are not made by way of criticism upon, or to question the propriety of, the decision of the Supreme Court, to which I yield implicit obedience, but to point the suggestions made respecting the consideration due from the Government to the parties holding titles under the patents now in question.

cusable, if they supposed these patents
carried a good title. They ought, cer-
tainly, to be entitled to some considera-
tion at the hands of the Government.
And even as to the lands west of the said
range line, the Government, as well as the
Courts, State and National, from the date

The reservation of the lands by which they were taken out of the railroad grant is not made in express terms by the statute itself, but it is worked out by construction from implications as to the policy of the Government, drawn from Accepting the decision of the Supreme other statutes relating to other objects, Court as correct, stili considering these containing express reservations as to those facts, and the action of the Government particular objects, which to my mind are itself upon the opposite construction for a not very apparent, and are wholly unsat- long term of years-more than twenty isfactory; and which did not command years-the people who purchased are exthe assent of all the Justices of the Supreme Court who sat in the case. Down to the decision in Newhall vs. Sanger, the United States Courts for the district of California, and the Supreme Court of the State-and they may be reasonably supposed to have been somewhat familiar with the condition of these matters of the rejection of the Moquelamos grant held the lands in question to be within till the case of Newhall vs. Sanger-a the congressional grant. (Sanger vs. Sar- period of ten years-took the view and gent, U. S. Circuit Court, in pamphlet, acted upon it, that the odd sections were decided in September, 1874, and other cases in that Court; C. P. R. R. Co. vs. Yolland, 49 Cal. 439, and other cases.) So, also, some of the Justices of the United States Supreme Court itself, in- But however the case may be on the cluding the Justice from this circuit, took merits, under the decision of Newhall vs. the same view; and the executive depart- Sanger, as to the lands lying east of the ment of the National Government had range line, between ranges 7 and 8, there early adopted and for many years prior is another point upon which the present thereto acted upon that hypothesis. Even bill must be dismissed, as to all the lands under the decisions of the Supreme Court, and patents in question. The Central

embraced in the railroad grant; otherwise,
there would have been no occasion for
this or other suits, to vacate the patents
issued in pursuance of that view.

The bill must be dismissed on this

ground, if on no other, and it is so ordered.

April 17, 1882.

MINERAL PATENTS ISSUED. Since our last report, patents have been issued for the following mining claims:

ARIZONA.

Cochise County.
Theo. F. White, et al., Silver Cable Lode.

CALIFORNIA.

Calaveras County.

John Batten, et al., Bowling Green Placer.
Heirs of A. M. Mitchell, Bonny Placer Mine.
Del Norte County.

S. Ambrose, et al., Placer.
Inyo County.
Nathan Rhine, Hirsh G. & S. Mino.

COLORADO.

Boulder County.

Theresa Jaeger, Little Emily Lode.

E. R. Marsh, O. & M. Lode and Mill site.
G. A. Reuter, Iron Lode.

Chaffee County.

Henry Frankle, et al., Laura Levy Lode. Toronto & New York Cons. SMg. Co., Toronto Lode.

Clear Creek County.

Julien Fountain, Independence Lode.

G. W. Hall, Colorado Central Extension Lode.

J. P. Ward, Stella Lodo.