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(115 U. S. 102)

FRASHER and others 0. O'CONNOR.

(May 4, 1885.) 1. PUBLIC LANDS—GRANT TO STATE-JURISDICTION OF GOVERNMENT OFFICERS.

In adjusting congressional grants of lands to a state, the only questions for con. sideration by the oiticers of the general government are whether the state possessed the right to claim the land under her grant, and whether the land was subject to selection by her agents. Those officers have no jurisdiction to review transactions between the state and her purchasers, nor between the state and her locating agents, and determine whether such purchasers or locating agents complied with the pro

visions of her laws relating to the sale of the lands. 2. SAME-CALIFORNIA LANDS-SURVEYS UNDER ACT OF JULY 23, 1866.

Surveys under the eighth section of the act of July 23, 1866, "to quiet land titles in California,” become operative by approval of the United States surveyor general for the state, and his filing in the local land-office of the township plats. Upon such approval of a survey and filing of the township plats, lauds thereby excluded from a confirmed private land claim become subject to state selections, and other modes of disposal of public lands. Previous approval of the survey by the com.

moissioner of the general land-office is not necessary. 3. SAME-Lists Or Lands CERTIFIED TO STATE-TITLE.

Lists of lands certified to the state by the commissioner of the general land-office, and the secretary of the interior, convey as complete a title as patents; and lands embraced therein are not thereafter open to settlement and pre-emption. In Error to the Supreme Court of the State of California. Geo. F. Edmunds and Wm. J. Johnston, for plaintiffs in error. E.R. Tay

ay ng lor, for defendants in error. *FIELD, J. This is an action for the possession of a parcel of land in Los Angeles county, California. The plaintiff, the defendant in error here, traces title to the premises by a patent of the state, issued to Robert Thompson on the twenty-first day of April, 1874, and certain mesne conveyances from the patentee. The title of the state was derived from selections of land in lieu of sections 16 and 36 granted for school purposes by the act of congress of March 3, 1853.

The defendants below, the plaintiffs in error here, contend that the selections by the state were void, because made within the asserted limits of a claim under a Mexican grant before the survey of such grant, which excluded the disputed premises, had become final; and set up a right to the land as preemptors under the laws of the United States by settlement and improvement subsequent to the state patents, with a tender to the officers of the land department of the required sums in such cases to entitle them to patents of the United States.

The position of the defendants below is that, being entitled as such pro emptors to patents from the United States of the lands in controversy, they are in a position to call in question the validity of the proceedings by which the land was selected by the state agents and listed to the state. To determine the questions thus presented, it will be necessary to give a brief history of the legislation of congress and of California with respect to the lands granted to the state for school purposes.

The act of congress of March 3, 1853, “to provide for the survey of the pub lic lands in California, the granting of pre-emption rights therein, and for other purposes,” placed the public lands in that state, with certain specified exceptions, subject to the general pre-emption law of September 4, 1811. 10 St. 246, § 6. Among the excepted lands were sections 16 and 36 of each township, which were declared to be thereby granted to the state for the purposes of public schools, and lands claimed under any foreign grant or title. The act also declared, in its seventh section, that where a settlement by the erection of a dwelling-house, or the cultivation of any portion of the land, should be made on the sixteenth and thirty-sixth sections before they should be surveyed, or where such sections should be reserved for public uses, or

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"taken by private claims,” other lands should be selected in lieu thereof by the proper authorities of the state. The lands in controversy were within the boundaries of a tract claimed under a confirmed Mexican grant, known as the “Rancho Sansal Redondo.” As sections 16 and 36 of townships were covered by the grant, a case was presented within the seventh section of the act of congress, in which the state was authorized to select other lands in lieu of them. The legislature of California, by an act passed April 27, 1863, provided for the sale of certain lands granted to the state by congress, and, among others, of the sixteenth and thirty-sixth sections in the several townships, or of lands which might be selected in lieu thereof. It prescribed the proceedings to be taken for the purchase of the lands, and required each state locating agent to keep a record of applications to purchase made to him, and when they amounted to 320 or more acres, to apply on behalf of the state to the register of the United States land-office of the district for such lands, in part satisfaction of the grant under which they were claimed, and to obtain his acceptance of the selections thus made. Various other proceedings were required by the act to secure a proper presentation to the land department of the United States of the lands thus purchased of the state; that is, of lands thus selected in satisfaction of the grant to her.

Surveys of the public lands in California were greatly delayed after the passage of the act of 1853, and as late as 1866 many townships had not been surveyed. For want of these surveys, it was impossible to ascertain the precise locality, in each township, of the sixteenth and thirty-sixth sections, and of course, except in a few instances, such as where the whole township was embraced in a private claim under a Mexican or Spanish grant, it could not be known whether there had been any such settlement on those sections as would authorize the state to select other lands in lieu thereof. The state was embarrassed by this delay in the public surveys, not only in the use of the sixteenth and thirty-sixth sections, and, when they were occupied by settlers, in the selections of lands in lien of them, but also in the selection of lands granted by other acts of congress than that of March 3, 1853. By the eighth section of the general pre-emption law of September 4, 1841, 500,000 acres of land were granted to each new state subsequently admitted into the Union, and of course to California, for purposes of internal improvement; the selection of the lands to be made from any public land within her limits, except such as was or might be reserved from sale by a law of congress or the proclamation of the president, and in such manner as her legislature should direct, and located in parcels conformably to sectional divisions and subdivisions of not less than 320 acres in any one location.

In May, 1852, in advance of any surveys by the United States, the state passed an act for the sale of these 500,000 acres. It authorized the governor to issue land-warrants for not less than 160 acres, and not more than 320 acres in one warrant, to the full amount of the grant; the treasurer to sell them at two dollars an acre, and the purchasers and their assigns to locate them on behalf of the state on any vacant and unappropriated land belonging to the United States subject to such location. Under these laws selections were made by agents of the state, or purchasers of warrants who were authorized to locate the same. Similar legislation was had and similar proceedings were authorized with respect to other lands granted by acts of congress to the state. When, however, selections thus made were brought to the attention of the land department at Washington, they were not recognized as conferring any right to the parties claiming under them. Selections made in advance of the public surveys were held to be wholly invalid. This ruling of the department caused great confusion and embarrassment in the state. Tidles thought to be unquestionable were found to be worthless, and interests of great magnitude which had grown up upon their supposed validity were endangered. To relieve against the embarrassments arising from this cause the act of congress of July 23, 1866, "to quiet land titles in California,” was passed. 14 St. 218. The first section of this act declares that, in all cases where the state of California had previously made selections of any portion of the public domain in part satisfaction of a grant made to the state by act of congress, and had disposed of the same to purchasers in good faith undei her laws, the lands so selected should be and were thereby confirmed to the state. From this confirmation were excepted selections of lands to which an adverse pre-emption or homestead or other right had at the date of the passage of the act been acquired by a settler under the laws of the United States, and of lands reserved for naval, military, or Indian purposes, and of mineral land, or of land claimed under a valid Mexican or Spanish grant. The second section provided that where the selections had been made of land which had been surveyed by authority of the United States, it should be the duty of the authorities of the state, where it had not already been done, to notify the register of the United States land-office, for the district in which the land was located, of such selections, and that the notice should be regarded as the date of the state's selections. The third section provided that where the selections had been made of land which had not been surveyed by authority of the United States, but the selections had been surveyed by authority of and under laws of the state, and the land sold to purchasers in good faith, such selections should, from the date of the passage of the act, when marked off and designated in the field, have the same force and effect as the preemption rights of a settler on unsurveyed public land.

* As thus seen, selections made pursuant to this act, embracing lands held on claimed under a valid Mexican or Spanish grant, were excepted from confirmation. By the act of 1853 lands claimed under “any foreign grant or title" were excepted from pre-emption. 10 St. c. 145, $ 6. The effect of these exceptions was to exclude from settlement large tracts of land in the state, which, upon a definite ascertainment of the boundaries of the grants, would have been open to settlement. A very great portion of the lands in the state were covered by Mexican or Spanish grants. Some of the grants were by specitic boundaries, and the extent of the land covered by them could be readily ascertained without an official survey. But by far the greater number were of a specific quantity of land lying within out-boundaries embracing a much larger quantity. Thus, grants of one or two leagues would often describe the quantity as being within boundaries embracing double or treble that amount; the grant declaring that the quantity was to be surveyed off by officers of the vicinage, and the surplus reserved for the use of the nation. The grantee in such case was of course entitled only to the specific quantity named, but what portion of the general tract should be set apart to him could only be determined by a survey under the authority of the government. Until then the grantee and the government were tenants in common of the whole tract. No one could intrude upon any portion of it, the whole being exempted from the preemption laws. The practical effect of this condition in many cases was to leave the grantee, until the official survey, in the possession, use, and enjoyment of a tract of land containing a much larger quantity than that granted. And before such survey could be made, the validity of the grant was to be determined by the commission appointed to investigate private land claims in California, and the action of the commission was subject to review by the district court of the United States, with a right of appeal from its decision to the supreme court. When the validity of the grant was confirmed, the confirmee could not measure off the quantity for himself and thus legally segregate it from the balance of the tract. As we said in Van Reynegan v. Bolton, 95 U. S. 36: “The right to make the segregation rested exclusively with the government, and could only be exercised by its officers. Until they acted, and effected the segregation, the confirmees were interested in preserving the entire tract from waste and injury, and in improving it, for until then they

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could not know what part might be assigned to them. Until then no third person could interfere with their right to the possession of the whole. No third person could be permitted to determine, in advance of such segregation, that any particular locality would fall within the surplus, and thereby justify his intrusion upon it and its detention from them. If one person could, in this way, appropriate a particular parcel to himself, all persons could do so, and thus the confirmees would soon be stripped of the land which was intended by the government as a donation to its grantees, whose interests they have acquired, for the benefit of parties who were never in its contemplation. If the law were otherwise than as stated, the confirmees would find their possessions limited, first in one direction and then in another, each intruder asserting that the parcel occupied by him fell within the surplus, until, in the end, they would be excluded from the entire tract. Cornwall v. Culo 16 Cal. 429; Riley v. Heisch, 18 Cal. 198; Mahoney v. Van Winkle, 21 Cal. 552."

The delays before the official surveys were made, even after the confirmation of a grant, sometimes lasted for years. In some instances they were attributable to the want of sufficient appropriations by congress to meet the expenses of the surveys. To obviate them from this cause congress provided in the sixth section of the act of July 1, 1864, "to expedite the settlement of titles to lands in the state of California," that it should be the duty of the surveyor general of California to cause all private land claims finally confirmed to be accurately surveyed, and plats thereof to be made whenever requested by the claimants: provided, that each claimant requesting a survey and plat should first deposit in the district court of the district within which the land was situated, a sufficient sum of money to pay the expenses of such survey and plat, and of the publication required by the first section of the act,*(13 St. C. 194;) and in the seventh section it prescribed the manner in which the surveys should be made. But, inasmuch as a confirmee had the possession and use of the whole tract, from which his quantity was to be taken, until it was segregated, he was not in haste to have the survey made of his claim. It was for his interest to postpone it; and therefore few confirmees of grants of quan. tity within exterior boundaries embracing a larger amount applied for surveys under that act. Accordingly, when the act of July 23, 1866, “to quiet land titles in California," was passed, confirming selections previously made by the state, except those from lands held or claiined under a valid Mexican or Spanish grant, it provided in its eighth section as follows: "That in all cases where a claim to land by virtue of a right or title derived from the Spanish or Mexican authorities has been finally confirmed, and a survey and plat thereof shall not have been requested within ten months from the passage of this act, as provided by sections six and seven of the act of July 1, 1864, 'to expedite the settlement of titles to lands in California,' and in all cases where a like claim shall hereafter be finally confirmed, and a survey and plat thereof shall not be requested, as provided by said sections, within ten months after the passage of this act, or any final confirmation hereafter made, it shall be the duty of the surveyor general of the United States for California, as soon as practicable after the expiration of ten months from the passage of this act, or such final confirmation hereafter made, to cause the lines of the public surveys to be extended over such land, and he shall set off, in full satisfaction of such grant, and according to the lines of the public surveys, the quantity of land confirmed in such final decree, and as nearly as can be done in accordance with such de cree; and all the land not included in such grant as so set off shall be subject to the general land laws of the United States: provided, that nothing in this act shall be construed so as in any manner to interfere with the right of bona fide pre-emption claimants.” 14 St. 218, c. 219.

After the passage of this act neither the state, nor persons-desiring to settle upon the public lands, were obliged to wait beyond 10 months for the grantee of a confirmed Mexican land claim to take action for the segregation

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of the specific quantity granted to him. If he delayed for that time after the passage of the act, if his claim had been previously contirmed, or for that time after the confirmation of his claim, if it should be subsequently confirmed, to obtain a final survey, it became the duty of the surveyor general of the United States to proceed and extend the lines of the public surveys over the land, and to set off in satisfaction of the grant, and according to the lines of sucli surveys, the quantity of land confirmed, and all the land not included in such grant as so set off was made “subject to the general land laws of the United States."

The grant known as the “Rancho Sausal Redondo" was made to Antonio Ygnacio Abila, May 20, 1837, by Alvarado, then governor ad interim of the department of California. The claim of the grantee to the land was confirmed on the tenth of June, 1855, by the board of land commissioners for the ascertainment and settlement of private land claims in California, and at its Deceinber term, 1855, by the district court of the United States. It embraced land within the limits of Los Angeles county. The decree of the district court became final, the appeal from it to the supreme court having been dismissed by stipulation of the attorney general. In 1858 a deputy surveyor made a survey of the claim, but it was not approved by the surveyor general, and was, in consequence, of no validity. For more than 10 years afterwards no other survey was made, nor does it appear from the record that the grantee, or those owning the claim, made application for any under the act of July 1, 1864. Accordingly, in 1868, more than 10 months having elapsed after the passage of the act of July 23, 1866, at the instance of Gen. Rosecrans, the rancho was surveyed by a deputy United States surveyor, George Hansen, and land was set off to the grantee in satisfaction of the grant. Over the land, within the boundaries of the grant confirmed, the United States surveyor extended the section and township lines; and on April 22, 1868, the township. plats were filed in the district land-office at San Francisco. Subsequently, Gen. Rosecrans, as hereafter stated, applied to the state to purchase the lands outside of the tract allotted to the grantee, part of which are the subject of the present controversy. The owners of the grant protested that notice of the survey had not been given to them, and that it did not conform to the decree of confirmation, and demanded a new survey. The surveyor general thereupon recalled the township plats and ordered a new survey, which was made in July, 1868, by deputy surveyor Thompson. This new survey included the lands in controversy as part of the grant. Afterwards, however, in October, 1871, the secretary of the interior set aside this new survey, ordered the township plats to be returned to the land-office, and affirmed the survey made by Hansen. Before, however, the recall of the township plats, and the order for a new survey, Gen. Rosecrans had procured a number of men to make applications for his benefit for the purchase of the lands in controversy, and to transfer their interests thus acquired to him. The applications were approved by the locating agents of the state, and the lands, as selections by the state, were afterwards listed to her, and patents were issued to the purchasers or their assignees.

According to the findings of the local district court, the applications and subsequent proceedings were very loosely conducted, and great irregularities are charged against the principal purchaser. But if the locating agents of the state were satisfied with the applications to purchase, and the selections thus made were approved by the land department of the United States, and the lands were listed to the state as part of the grant to her, it is not perceived what ground of complaint the loose character of the proceedings furnish to the defendants. Their title is not advanced by showing how irregularly the proceedings were conducted by parties who obtained the title of the state; and to the general government it is enough that she does not complain, but accepts the selections in satisfaction of the grant to her. The same view was taken

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