Opinion of the Court. Nevada, the region embraced would be immensely enlarged, comprising over fifty square leagues in the one case, and over eighty in the other. Can it be that such an extensive region was under interdict, as reserved land, absolutely exempt from disposition, even by Congress, during the whole period covered by the litigation respecting the validity of the grant, which, in the end, even if found valid, was only for the quantity of eleven square leagues? The investigation continued thirteen years. The grant was found to be a wretched fraud. Even if signed by Pico, it was got up after the Mexican authority had ceased, and was never confirmed by the Departmental Assembly, as no such assembly then existed; and at the date on which it purports to have been confirmed, the Departmental Assembly was not in session. It was, therefore, for good cause that it was rejected by the courts. Laying all this aside, however, and looking at the claim as one fairly sub judice, we may repeat our question, whether it can be possible that so great a region of country was to be regarded as reserved from alienation for so small a cause — an ordinary eleven-league grant? It is contended that the case of Newhall v. Sanger, 92 U. S. 761, has concluded this question by an answer in the affirmative. This case will be examined hereafter. Meantime let us look at the nature of the supposed case. A grant of eleven square leagues is made out of a country seventy or eighty miles in length, and from six to ten in width, containing over eighty square leagues; and this whole eighty leagues is supposed to be retired from the disposable public domain for a period of years, no one knows how long. Does this look reasonable? One or two observations may be made calculated to show the precise question in a still stronger light. First. It is in the option of the government, not of the grantee, to locate the quantity granted; and, of course, a grant by the government of any part of the territory contained within the outside limits of the grant only reduces by so much the area within which the original grantee's proper quantity may be located. If the government has the right to say where it shall be located, it certainly has the right to say where it VOL. CXXVII-29 Opinion of the Court. shall not be located; and if it sells land to a third person at a place within the general territory of the original grant, it is equivalent to saying that the quantity due to the original grantee is not to be located there. In other words, if the territory comprehended in the outside limits and bounds of a Mexican grant contains eighty leagues, and the quantity granted is only ten leagues, the government may dispose of seventy leagues without doing any wrong to the original grantee. This was the Mexican law, and of course it is our law. United States v. Armijo, 5 Wall. 444, 449. In practice, it is true, our authorities, in administering the public lands, have generally allowed the original grantee to make his own selection of the point where he will have his quantity located, provided he has it all located together in one tract. But this is a matter of favor, and not a matter of right. If this were not so, the right of way granted for the railroads by Congress would be subject to question and litigation. There cannot be any doubt, however, of the validity of these grants. The cases which show the law on this subject are numerous; it is only necessary to refer to a few of them. The following may be consulted: Fremont v. United States, 17 How. 542, 558, 565; United States v. Armijo, 5 Wall. 444; Hornsby v. United States, 10 Wall. 224, 234-5; Henshaw v. Bissell, 18 Wall. 255, 266-7; Miller v. Dale, 92 U. S. 473, 476–7; Van Reynegan v. Bolton, 95 U. S. 33, 36. According to this rule of law, though the Moquelamos grant had been unquestionably genuine and valid, the government would have had a right to dispose of the whole territory east of range 6 without infringing in the slightest degree the rights of Pico, who would still have had his eleven leagues at the western extremity of the territory. Any construction of the laws which would tend to trammel and obstruct this right of the government, and render its acts in making alienations void, should be made with great caution and a careful consideration of the necessary import of the terms of such laws. An illustration of the absurdity which may be involved in extending the supposed reservation from sale and alienation to this kind of grants is shown in the large extent of country which Opinion of the Court. has been covered by some of them known to the records of this court. In 1822 a grant of twenty leagues square, or four hundred square leagues of land, was made by the Supreme Government of Mexico to President Yturbide, to be located in Texas. In 1835 the Mexican congress authorized his heirs to locate the land in New Mexico or in Upper or Lower California. In 1841 it was decreed that it should be located in Upper California - that is, the present State of California. This claim was actually presented to the Board of Land Commissioners, and appealed to the District Court and thence to this court. Now, according to the contention of the complainant in the present case, all California was interdicted territory during the pendency of that claim before the board and in the courts. The case is reported in 22 Howard, 290, Yturbide's Executors v. United States. This case arose under the same law as that upon which the case of Newhall v. Sanger was based the act of March 3d, 1851. If a reservation of an entire territory is to be implied from a floating grant of quantity within it, then, logically, every float, or land warrant issued by the government, should, until actually located, operate as a reservation of the entire body of public lands. We can well understand that Indian reservations and reservations for military and other public purposes of the government should be considered as absolutely reserved and withdrawn from that portion of the public lands which are disposable to purchasers and settlers-for, in those cases, the use to which they are devoted, and for which they are deemed to be reserved, extends to every foot of the reservation. The same reason applies to Mexican grants of specific tracts, such as a grant for all the land within certain definite boundaries named, or all the land comprised in a certain rancho or estate. But this reason does not apply to grants of a certain quantity of land, within a territory named or described, containing a much larger area than the amount granted, and where, as in the present case, the right of location within the larger territory is in the government, and not in the grantee. In such case, the use does not attach to the whole territory, but only to a part of it, and to such part as the government chooses to designate, provided the requisite quantity be appropriated. Opinion of the Court. The case of the Leavenworth &c. Railroad Co. v. The United States, 92 U. S. 733, preceded the case of Newhall v. Sanger, and was relied on in the latter case. But the Leavenworth case related to an Indian reservation, and the legislative grant upon which it depended, 12 Stat. 772, entitled, "An act for a grant of lands to the State of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said State," had an express proviso, "that any and all lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operations of this act, except so far as it may be found necessary to locate the routes of said road and branches through such reserved lands, in which case the right of way only shall be granted." The land grant in that case was construed as taking effect immediately, and as vesting a present title in the State of Kansas, though a survey of the lands and a location of the road were held to be necessary to give precision to it, and attach it to any particular tract. The treaty with the Great and Little Osage tribe of Indians, made June 2d, 1825, which contained a cession to the United States of certain land, contained this clause, to wit: "Within the limits of the country above ceded and relinquished there shall be reserved to and for the Great and Little Osage tribe or nation aforesaid, so long as they shall choose to occupy the same, the following described tract of land." The described tract embraced the land in question in the cause, and the court held that it was no part of the public lands of the United States, and that no part of it passed to the State of Kansas under the grant, though the railroad passed through it. In our judgment that case differed materially from the one now before us. The whole reservation was appropriated to the use of the Osage nation as long as they chose to occupy it. The case of Newhall v. Sanger, 92 U. S. 761, on which the complainant confidently relies, was argued and decided shortly after the Leavenworth case. It arose upon a bill to quiet title Opinion of the Court. to a quarter section of land situated in township 3 N., range 7 E., and therefore west of the Jack Tone road, and within the then admitted limits of the Moquelamos grant now under discussion. We have taken the pains to examine the original record. The bill is comprised in a page and a half, and the whole record in six pages. Sanger, the complainant below, claimed title through the Western Pacific Railroad Company, to whom a patent had been issued in April, 1870, in professed compliance with the requirements of the acts of Congress of 1862 and 1864. The bill alleges that Newhall claimed title to the same land under a subsequent patent, which recited that the first patent had issued by mistake to the Western Pacific Railroad Company, because the land was within the exterior limits of a Mexican grant called Moquelamos. The bill alleged that this grant was rejected by the final decision of this court in December term, 1864, before the reservation of lands for the railroad was made; but that the President, in making the second grant, pretended that the Moquelamos grant was not rejected until the 13th day of February, 1865, after the reservation for railroad purposes, claiming the right to look into the minutes of this court to ascertain the precise day when the claim was rejected, and thereby disregarding the mandate; whereas the complainant contended that the rejection took effect from the first day of the term. This was the substance of the bill. The only issue it raised was as to the time when the rejection of the grant legally took effect, whether at the beginning of the term (December 5th, 1864), or on the actual day of rendering the judgment (February 13th, 1865); one date being before and the other after the withdrawal of the lands from sale for the benefit of the railroad company; and such withdrawal being assumed to be the act by virtue of which the railroad title accrued. There was nothing in the bill to show that the boundaries named in the grant contained any more than eleven square leagues of land, the quantity granted. The bill was demurred to, the cause was submitted without argument, and the demurrer was overruled. The defendant adhering to his demurrer, a decree was entered for the com |