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Argument for Appellant.

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objections were made at the hearing to the testimony of Treadwell and the exhibits thereto.

This was done both orally and by brief, and this constitutes a sufficient exception under the act of Congress regulating the practice of appeals from territorial courts.

Then, after the decision, an application was made for a rehearing. The order of the court refusing this petition contains the following : “ The court

does now overrule such petition and refuses to grant the same for reasons set forth in an opinion by Chief Justice Long.” The second reason assigned for rehearing was the following: “2. The court bases its conclusion as to the location of said Sierra del Tuerto largely upon ex parte affidavits taken by one John B. Treadwell without notice to any one or opportunity for cross-examination, improperly injected into the record of the court below after all the proofs on both sides were closed, which defendant moved to strike out and suppress before the final hearing as is shown by the record.”

Chief Justice Long says, in the opinion which is thus incorporated into the order of the court that “the defendant has filed a petition for rehearing assigning therein twelve reasons why the same should be granted. The

points made, are but a repetition of those urged both in oral argument and in the printed briefs and already fully considered and determined. They present no new consideration and are fully met by the opinion.”

I submit that the reference in the order, denying the petition for rehearing, in this opinion filed by Chief Justice Long, incorporates the opinion into the record, and that it is not merely a “recorded and filed” opinion as required by the rules of the Supreme Court of the Territory of New Mexico, or a certified opinion as required by the rules of this court, but that it is thus by reference made part of the record of proceedings of the Supreme Court, with the same effect as if the reasons referred to by the court in its order and stated therein to have been “set forth in an opinion by Chief Justice Long," had been incorporated into the order itself.

I further submit that this reference to the opinion shows

second

VOL. CXLVI-9

Opinion of the Court.

that both in the oral argument and in the printed briefs it was objected at the hearing, that Treadwell's testimony and ex parte affidavits were without cross-examination or notice to any one improperly injected into the record in the court below, and retained there in the face of the defendant's motion to strike out and suppress. This is the only form in which the objection could have been made in the oral argument and the printed briefs.

And I also submit that the denial of the rehearing to which the defendant was entitled upon the second ground above stated by its counsel, is a sufficient objection and exception to the testimony of Treadwell and the ex parte affidavits attached thereto.

Mr. Assistant Attorney General Parker and Mr. Thomas Smith for appellee.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

case.

The Supreme Court of the Territory, at the request of the defendant made and certified a statement of the facts in the

This is in accordance with the act of April 7, 1874, 18 Stat. 27, which, in section 2, a section providing for the exercise of the appellate jurisdiction of this court over the judgments and decrees of territorial courts, reads : “ That on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certified by the court below and transmitted to the Supreme Court, together with the transcript of the proceedings and judgment or decree.” Construing this statute, it was held, in the case of Idaho & Oregon Land Company v. Bradbury, 132 U. S. 509, 514, that “the authority of this court, on appeal from a territorial court, is limited to determining whether the court's findings of fact support its judgment or decree, and whether there is any error in rulings, duly excepted to, on the ad.

Opinion of the Court.

mission or rejection of evidence, and does not extend to a consideration of the weight of evidence or its sufficiency to support the conclusions of the court. Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 U. S. 619; Neslin v. Wells, 104 U. S. 428; Hecht v. Boughton, 105 U. S. 235, 236; Gray v. Howe, 108 U. S. 12; Eilers v. Boatman, 111 U. S. 356; Zeckendorf v. Johnson, 123 U. S. 617.” Hence, notwithstanding the large volume of testimony taken and used in the court below has been incorporated into the record sent to us, we are not at liberty to review that testimony for the purpose of ascertaining whether the findings in the statement of facts are or are not in accordance with the weight of the evidence. This narrows materially the range of our inquiry.

The first proposition of the appellant is that the United States has no interest in the controversy, and did not in good faith institute and prosecute this suit. This claim rests upon the fact that in the record is found the following letter:

“ DEPARTMENT OF JUSTICE,

“WASHINGTON, October 17, 1883. “F. W. CLANCY, Esq., 1426 Corcoran St., Washington, D. C.

“Sır: To your inquiry whether the United States will pay the costs incurred in the case against the San Pedro and Cañon del Agua Company, I answer that the United States has no beneficial interest in the proceeding. It was instituted at the instance of parties who claimed a right to the possession of the lands. Upon their request special counsel were appointed by this Department to commence and carry on the suit, but they were not to be compensated by the United States, and it was the understanding of this Department, as in other similar cases, that whatever costs and expenses were incurred in the preparation and conduct of the case should be paid by the parties on whose petition the proceedings were instituted. I must decline, therefore, for the government, to pay said costs and expenses or any part thereof. Very respectfully, BENJAMIN IIARRIS BREWSTER,

Attorney General.

Opinion of the Court.

Apparently the attention of the court below was not called to this letter, nor any action taken in reference to it. It simply appears as a paper filed by some one in the clerk's office, and by the clerk, of his own motion, incorporated into the record. Mr. Clancy, to whom the letter was addressed, was, up to January, 1883, the clerk of the court in which the suit was pending; subsequently, although, so far as the record discloses, not till after October, 1883, he became one of the counsel for defendant.

There are several reasons why the claim of the defendant in this respect cannot be sustained. In the first place, we have no assurance that the letter is genuine. Such a paper does not prove itself. It was not offered in evidence. The court took no notice of it. It was addressed, not to an officer of the court or a counsel in the case, but to a stranger. The clerk, by merely filing such a document, does not adjudicate that it is in fact that which on its face it purports to be.

Again, even if it be regarded as the letter of the Attorney General, it does not contain any such statement as precludes the government from maintaining this action. There is nowhere an intimation that Attorney General MacVeagh, the predecessor of the writer of the letter, when commencing the suit, was not acting in the utmost good faith, and in the belief that the government had a pecuniary interest in the lands, or was under an obligation to third parties, which it could protect only by setting aside this patent; and while the letter declares that the United States has no beneficial interest in the controversy, it does not deny that the United States is under obligation to other parties respecting the relief invoked; and that, it is now settled, is sufficient for maintaining an action to set aside a patent. United States v. San Jacinto Tin Co., 125 U. S. 273; United States v. Beebe, 127 U. S. 338, 342, in which latter case it was said: “ And it may now be accepted as settled that the United States can properly proceed by bill in equity to have a judicial decree of nullity and an order of cancellation of a patent issued in mistake or obtained by fraud where the government has a direct interest or is under an obligation respecting the relief invoked.” See

Opinion of the Court.

also United States v. Missouri, Kansas & Texas Railway, 141 U. S. 358, 380.

But, chiefly, the statement made by the Supreme Court shows that in fact there were parties to whom the United States was under obligation in respect to the relief invoked ; and, also, that the government had a direct pecuniary interest in the relief sought. The application for a grant described a tract of vacant land near the placer of San Francisco called Placer del Tuerto, and distant from that town about one league, more or less. This town, with a varying population of a few. hundred, perhaps thousands, of people was in existence before the application of Ramirez for the grant, at the date of the annexation of New Mexico to this country, and at the time of the survey and patent. The inhabitants held their possessions by the indefinite and unrecorded titles of dwellers in Mexican villages. By the treaty of cession, as well as the general law in respect to the acquisition of foreign territory, the United States was bound to respect all existing rights, and among them the rights and titles of these inhabitants. Yet the survey and patent included the town. It is true that the act of conformation, as well as the patent, recites that it is only a relinquishment on the part of the United States, and is not to affect the adverse rights of any person, and it is very likely that the equitable titles of the inhabitants could be established notwithstanding the patent; but the government owed it to them not to burden their equitable rights by an apparently adverse legal title, and having been induced to do so through the fraudulent acts of the patentee and his associates, it is discharging a moral obligation, at least, when it takes steps to set aside such patent, and to relieve them from the apparent cloud on their title.

Further, the statement of facts finds that

“Outside of the boundary line of the said Cañon del Agua grant as granted to said Ramirez by the government of Mexico there was at the time when the supplemental bill in this cause was filed a mining property of great value, known as the Big Copper mine, yielding valuable quantities of both copper and gold. There were also numerous other mines of the precious metals east of the Cañon del Agua spring.

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