tempt to enlarge the scope of his invention beyond what was originally disclosed, but, on the contrary, an attempt to secure protection for the invention contained in the patent.'

For the purpose of deciding the question of law, arising on the demurrer to the bill, it is not necessary to set out the several claims in the original and reissued patents, with a view to a comparison. It is sufficient to say that it' is not claimed that the defendant is guilty of an infringement of either of the claims in the original patent as repeated in the reissue; and it is admitted that the claims in the reissued patent, infringement of which is averred, are expansions of the original claims, not covered by them, but alleged, nevertheless, to be embraced within the invention as described in the original patent. This is to say that if, as a matter of fact, the patentee was the first and original inventor of the parts and combinations covered by these claims, the language of the specification to the original patent would sufficiently embrace them. It follows from this that if, at the date of the issue of the original patent, the patentee had been conscious of the nature and extent of his invention, an inspection of the patent, when issued, and an examination of its terms, made with that reasonable degree of care which is habitual to and expected of men in the management of their own interests, in the ordinary affairs of life, would have immediately informed him that the patent had failed fully to cover the area of his invention. And this must be deemed to be notice to him of the fact, for the law imputes knowledge when opportunity and interest, combined with reasonable care, would necessarily impart it. Not to improve such opportunity, under the stimulus of self-interest, with reasonable diligence, constitutes laches which in equity disables the party who seeks to revive a right which he has allowed to lie unclaimed from enforcing it, to the detriment of those who have, in consequence, been led to act as though it were abandoned.

This general doctrine of equity was applied with great distinctness to the correction of alleged mistakes in patents, by reissues, in the case of Miller v. Brass Co. 104 U. S. 350. It was there declared that where the mistake suggested was merely that the claim was not as broad as it might have been, it was apparent upon the first inspection of the patent, and if any correction was desired, it should have been applied for immediately; that the granting of a reissue for such a purpose, after an unreasonable delay, is clearly an abuse of the power to grant reissues, and may justly be declared illegal and *void; that, in reference to reissues made for the purpose of enlarging the scope of the patent, the rule of laches should be strictly applied, and no one should be relieved who has slept upon his rights, and has thus led the public to rely on the implied disclaimer involved in the terms of the original patent; and that when this is a matter apparent on the face of the instrument, upon a mere comparison of the original patent with the reissue, it is competent for the courts to decide whether the delay was unreasonable and whether the reissue was therefore contrary to law and void.

This doctrine has been reiterated in many cases since, and at the present term has been reconsidered, and emphatically repeated as the settled law, in the case of Mahn v. Harwood, 112 U. S. 354, S. C., ante, 174, where it is said by Mr. Justice BRADLEY, delivering the opinion of the court: "We repeat, then, if a patentee has not claimed as much as he is entitled to claim, he is bound to discover the defect in a reasonable time, or he loses all right to a reissue; and if the commissioner of patents, after the lapse of such reasonable time, undertakes to grant a reissue for the purpose of correcting the supposed mistake, he exceeds his power, and acts under a mistaken view of the law; and the court, seeing this, has a right, and it is its duty, to declare the reissue pro tanto void, in any suit founded upon it." It was also there said that, while no invariable rule can be laid down as to what is a reasonable time within which the patentee should seek for the correction of a claim

*102

101

which he considers too narrow, a delay of two years, by analogy to the law of public use before an application for a patent, should be construed equally favorable to the public, and that excuse for any longer delay than that should be made manifest by the special circumstances of the case.

In the present case the delay in applying for the reissue was more than five years. No special circumstances to account for or excuse the delay are set out in the bill. In lieu of such a statement, the complainant avers that he presented to the patent-office a full, sworn statement of facts and circumstances connected with his applying for and obtaining his original patent, and with his delay in applying for the reissue, and that the examiners in chief decided that he had sufficiently and satisfactorily explained the delay, and was entitled to the reissue. But this does not satisfy the law. The question as to whether the delay had been reasonable or unreasonable is for the court to determine, upon the special circumstances brought to its attention; and it cannot substitute the decision of the patent-office upon that question for its own. The very question is whether the patent-office has decided rightly, and, as it is a question of power and jurisdiction, in which the delay shown is prima facie unlawful, it is incumbent on the party seeking to establish the jurisdiction of the patent-office to grant the reissue, to show the facts on which it rests. In every case of a reissue, that office, either expressly or impliedly, decides the question of diligence on the part of the patentee; and the grant of a reissue is a decision that the delay has not been unreasonable. That, therefore, is the very question for judicial review, in every suit to enforce a reissued patent, in which the question is made; and, as we have seen, the settled rule of decision is that if it appears, in cases where the claim is merely expanded, that the delay has been for two years or more, it is adjudged to invalidate the reissue, unless the delay is accounted for and excused by special circumstances, which show it to have been not unreasonable.

When, therefore, the injunction bill sets out or exhibits both the original and the reissued patent, and it appears from inspection that the sole object of the reissue was to enlarge and expand the claims of the original, and that a delay of two or more years has taken place in applying for the reissue, not explained by special circumstances showing it to be reasonable, the question of laches is a question of law arising on the face of the bill, which avails as a defense, upon a general demurrer for want of equity. This rule of equity pleading applies in analogous cases; as where, it otherwise appearing on the face of the bill that the claim is stale, or is barred by lapse of time, and it is sought to avoid the effect of such a bar on the ground that the fraud complained of was concealed, and has been only recently discovered, it is necessary that "the particular acts of fraud or concealment should have been set forth by distinct averments, as well as the time when discovered, so that the court may see whether, by the exercise of ordinary diligence, the discovery might not have been before made." Beaubien v. Beaubien, 23 How. 190; Stearns v. Page, 7 How. 819; Moore v. Greene, 19 How. 69; Marsh v. Whitmore, 21 Wall. 178, 185; Godden v. Kimmell, 99 U. S. 201; Badger v. Badger, 2 Wall. 87, 95; Wood v. Carpenter, 101 U. S. 135; Landsdale v. Smith, 106 U. S. 391; S. C. 1 SUP. CT. REP. 350.

The decree of the circuit court dismissing the bill for want of equity was correct, and is affirmed.

(115 U. S. 102)

FRASHER and others v. 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 consideration by the officers 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 provisions 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, lands 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. missioner of the general land-office is not necessary.

3. SAME-LISTS OF 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. lor, for defendants in error.

E. R. Tay

*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 preemptors 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

"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 Sausal 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. Titles 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 under 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 or 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 specific 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