cision. And thereupon the supreme court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal."

And it is also provided, in respect of cases In which the judgments and decrees of the circuit courts of appeals are made final, that "It shall be competent for the supreme court to require, by certiorari or otherwise, any such case to be certified to the supreme court for its revision and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court." Thus, in the interest of jurisprudence and uniformity of decision, the supervision of this court, by way of advice or direct revision, is secured. In re Woods, Petitioner, 143 U. S. 202, 12 Sup. Ct. Rep. 417; Lau Ow Bew, Petitioner, 141 U. S. 583, 12 Sup. Ct. Rep. 43; Id., 144 U. S. 47, 58, 12 Sup. Ct. Rep. 517.

In order, however, to invoke the exercise of our jurisdiction in the instruction of the circuit courts of appeals as to the proper decision of questions or propositions of law arising in the classes of cases mentioned, it is necessary that such questions or propositions should be clearly and distinctly certified, and that the certificate should show that the instruction of this court as to their proper decision is desired.

It was long ago settled under the statutes authorizing questions upon which two judges of the circuit court were divided in opinion to be certified to this court, that each question so certified must be a distinct point or proposition of law, clearly stated, so that it could be definitely answered, (Perkins v. Hart, 11 Wheat. 237; Sadler v. Hoover, 7 How. 646; Jewell v. Knight, 123 U. S. 426, 432, 8 Sup. Ct. Rep. 193; Association v. Wickham, 128 U. S. 426, 9 Sup. Ct. Rep. 113,) and that, if it appeared upon the record that no division of opinion actually existed among the judges of the circuit court, this court would not consider a question as certified, even though it were certified in form, (Railroad Co. v. White, 101 U. S. 98; Webster v. Cooper, 10 How. 54; Nesmith v. Sheldon, 6 How. 41.)

We regard the certificate before us as essentially defective. It does not specifically set forth the question or questions to be answered, and, apart from that, it does not state that instruction is desired for the proper decision of such question or questions. On the contrary, it appears therefrom that the court had arrived at a conclusion, nothing doubting, (for reasons, we may remark, given in its opinion reported in 52 Fed. Rep. 337,) but that, because the circuit court

of appeals* for another circuit had reached the opposite conclusion, under similar circumstances, the request for instruction is preferred.

While the fact that the circuit court of appeals for one circuit has rendered a different judgment from that of the circuit court of appeals for another, under the same conditions, might furnish ground for a certiorari, on proper application, the assertion of the existence of such difference, and of the wish that it might be determined by this court, is not equivalent to the expression of a desire for instruction as to the proper decision of a specific question or questions requiring determination in the proper disposition of the particular case. The difference can only exist when the courts have actually reached contradictory results, but each must proceed to its own judgment, unless such grave doubts arise as to induce the conviction that this court should be resorted to for their solution in the manner provided for.

As, in our judgment, this certificate is not. in compliance with the statute, we must decline to certify any opinion upon the matters involved, and direct the cause to be dismissed.

1. A civil suit, instituted, under Act of February 25, 1885, (23 St. p. 321,) in the name of the United States, against persons inclosing public lands, for the destruction of such inclosure, is a summary proceeding in the natureof a suit in equity for abatement, and defendant is not entitled to a jury trial.

2. This statute was only intended to prevent mere trespassers from inclosing publiclands, and in a proceeding thereunder it is a sufficient defense to show that the lands inclosed are not public lands, or that defendant: had color of title acquired in good faith.

3. A claim to land by certain boundaries. under a Mexican grant of "four square leagues of land in the place called 'San Rafael de la Zanja," the limits to be designated by stonemonuments, is a claim under color of title, it appearing that such designation was actually made; that judicial possession was delivered in pursuance thereof; and that, though the surveyor general, on application for confirmation of the grant, has reported in favor of limiting it to four square leagues, the claim and report are still pending undetermined beforecongress. 21 Pac. Rep. 177, reversed.

4. Where, under such circumstances, a portion of the lands is occupied under a claim of title to all within the boundaries thus fixed, it cannot be regarded as part of the public lands of the United States; for it is the settled policy of the government to protect all claims to land, though founded on an inchoate or imperfect title, until their validity is determined by a competent tribunal.

5. Color of title exists wherever there is a reasonable doubt regarding the validity of an apparent title, whether the doubt arises from.

the circumstances under which the land is held, the identity of the land conveyed, or the construction of the instrument under which the party in possession claims title.

6. No change of policy in this respect as to Arizona is to be inferred from the fact that the provision in the act (10 St. at Large, p. 308) establishing the office of surveyor general for New Mexico, (then including Arizona,) that "until the final action of congress on such claims all lands covered thereby shall be reserved from sales or other disposals by the government, and shall not be subject to the donations granted by the previous provisions of this act,' was omitted from the act (16 St. at Large, p. 230) establishing the same office for Arizona, especially as the sundry civil appropriation act for the same year (16 St. at Large, p. 304) provides that the surveyor general of Arizona shall have all the powers and perform all the duties enjoined upon the surveyor general of New Mexico.

Mr. Chief Justice Fuller dissenting.

Appeal from the supreme court of the territory of Arizona.

Suit by the United States under Act Feb. 25, 1885, (23 St. p. 321,) against Colin Cameron for the destruction of an inclosure of public lands. Judgment for complainant. 21 Pac. Rep. 177. Defendant appeals. Reversed.

Statement by Mr. Justice BROWN:

This case was originally instituted by the filing of a complaint by the United States in the district court of the first judicial district of the territory of Arizona to compel the removal by the defendant, Cameron, of a wire fence, by which it was alleged he had Inclosed about 800 acres of public lands "without any title or claim or color of title acquired in good faith thereto, and without having first made application to acquire title thereto, or any part thereof, according to law." The proceeding was taken under an act of congress of February 25, 1885, (23 St. p. 321,) to prevent the unlawful occupancy of public lands. The first section of the act reads as follows: "All inclosures of any public lands in any state or territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, to any of which land included within the inclosure the person * making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use or occupancy of any part of the public lands of the United States in any state or any of the territories of the United States without claim, color of title, or asserted right, as above specified, as to inclosure, is likewise declared unlawful, and hereby prohibited."

In his answer the defendant denied in general terms the allegations of the complaint, and in an amendment thereto set up a Mexican grant of May 15, 1825, to one Romero and other citizens of Santa Cruz; the death of Romero in 1873; the purchase by Alfred A. Green of the interest of his heirs in the grant; the sale by Green to one Rollin R. Richardson of an undivided nine tenths of Green's interest upon certain terms and conditions expressed in the contract; the entry by Richardson upon the land, claiming the right to the possession thereof; the sale by Richardson to the defendant, Cameron, of all his interest in the land, and the assignment of his contract with Green, whereby the defendant became the equitable owner of the said undivided nine-tenths interest, and "is in the possession thereof, and entitled to be in possession thereof." The answer further averred that an application was then pending before congress for the confirmation of this grant; that the same had been examined by the surveyor general of Arizona, who had reported it to be a valid grant, and recommended that it be confirmed to the representatives of Romero and his associates to the extent of four square leagues, but defendant claimed that it should be confirmed to the exterior boundaries thereof, as set forth and described in the original expediente. Upon the trial the court found the issues in favor of the United States; decreed the inclosure to be of public lands, and therefore unlawful; and rendered a special judgment in the terms of the act that the fence be removed by the defendant within five days, and, in default of his so doing, that the same be destroyed by the United States marshal.

Defendant thereupon appealed to the supreme court of the territory, by which the judgment was affirmed. 21 Pac. Rep. 177. Defendant was then allowed an appeal to this court.

Rochester Ford and Jas. C. Carter, for appellant. Sol. Gen. Aldrich and Wm. H. Barnes, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case was originally dismissed upon the ground that the question at issue between the parties being the fact whether defendant had claim or color of title to the lands in question, acquired in good faith, there was no evidence of the value of such claim or color of title, even if the same were capable of pecuniary estimation, of which the court expressed a doubt. 146 U. S. 533, 13 Sup. Ct. Rep. 184.

The case was subsequently reinstated upon it being made to appear that the inclosed tract contained 1,200 acres; that defendant had been engaged since 1883 in the busk

ness of grazing cattle upon this grant and the lands adjacent thereto; that his fence inclosed and controlled the only unappropriated water in a section of grazing country embracing not less than 100 square miles; that without such fence the use and control of the inclosed land and water would be of no use to him; that if he had not the ability to maintain the fence, the land and water would be at once seized and appropriated by other persons, and defendant's cattle driven and kept away; that he would be unable to conduct his cattle business in this section; and that the possession, use, and occupation of such inclosure exceeds the value of $10,000. These facts make a wholly different showing, and the case is, therefore, properly before us on its merits.

1. A preliminary objection is made by the appellee to the consideration of the case upon the ground that the proceeding is in the nature of a common-law action; that it was tried without the intervention of a jury, and without a stipulation waiving a trial by jury; that the supreme court of Arizona could not properly consider any of the matters raised by the bill of exceptions, nor can this court do so; that all the supreme court could do was to affirm the judgment of the district court; and that all this court can do is to affirm the judgment of the supreme court of Arizona. By section 2 of the act of February 25, 1885, under which this prosecution was commenced, the district attorney was given authority "to institute a civil suit in the proper * * territorial district court in the name of the United States, and against the parties named or described who shall be in charge of or controlling the inclosure complained of as defendants; and jurisdiction is also hereby conferred on any

*ter

ritorial district court having jurisdiction over the locality where the land inclosed, or any part thereof, shall be situated, to hear and determine proceedings in equity, by writ of injunction, to restrain violations of the provisions of this act. ** In any case, if the inclosure shall be found to be unlawful, the court shall make the proper order, judgment, or decree for the destruction of the inclosure in a summary way, unless the inclosure shall be removed by the defendant within five days after the order of the court."

It is a sufficient answer to this objection of the government to say that this is not a common-law action, but a summary proceeding, more in the nature of a suit in equity, and that the decree provided by the act for the abatement of the inclosure is unknown to an action at common law as administered in this country. Proceedings by assize of nuisance and by writ quod permittat prosternere have been abolished by statute in England, and are now obsolete, if ever used, in this country. 3 Bl. Comm. 221. In cases like the present the only common-law remedy available to the United States would be an action

of ejectment or trespass to oust the intruders. The proceeding contemplated by this act is more nearly analogous to the summary remedies provided for the enforcement of mechanics' liens, considered by this court in Implement Co. v. Bradbury, 132 U. S. 509, 10 Sup. Ct. Rep. 177, or the special proceedings under the territorial statutes of Utah, discussed in Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, Id. 619; Neslin v. Wells, 104 U. S. 428; Gray v. Howe, 108 U. S. 12, 1 Sup. Ct. Rep. 136; and in Ely v. Railroad Co., 129 U. S. 291, 9 Sup. Ct. Rep. 293, appealed from the supreme court of Arizona. In these cases the validity of special statutory proceedings of this description was sustained, and in Hecht v. Boughton, 105 U. S. 235, it was held that under the act of April 7, 1874, (18 St. pt. 3, p. 27,) an appeal was the only proceeding by which this court could review the judgment or decree of a territorial court in a case where there was not a trial by jury.

The practice pursued in this case conformed to the territorial statutes of Arizona, which provide for a waiver by oral consent in open court of a trial by jury in actions arising upon contract, and, with the assent of the court, in other cases. The case is not governed by section 649 of the Revised Statutes.

2. The act of congress which forms the basis of this proceeding was passed in view of a practice which had become common in the western territories of inclosing large areas of lands of the United States by associations of cattle raisers, who were mere trespassers, without shadow of title to such lands, and surrounding them by barbed wire fences, by which persons desiring to become settlers upon such lands were driven or frightened away, in some cases by threats or violence. The law was, however, never intended to operate upon persons who had taken possession under a bona fide claim or color of title; nor was it intended that, in a proceeding to abate a fence erected in good faith, the legal validity of the defendant's title to the land should be put in issue. It is a sufficient defense to such a proceeding to show that the lands inclosed were not public: lands of the United States, or that defendant had claim or color of title, made or acquired in good faith, or an asserted right thereto by or under claim made in good faith, with a view to entry thereof at the proper land office under the general laws of the United States. As the question whether the lands inclosed by the defendant in this case were public lands of the United States depends upon the question whether he had claim or color of title to them, the two questions may be properly considered together.

Defendant justified under an expediente of the Mexican government which appears to have been obtained in the following manner: On July 19, 1821, Don Manuel Bustillo applied to the governor intendente of Sonora

and Sinaloa, to purchase at auction four square leagues of land for the raising of stock at the placed named "De la Zanja," "three square leagues of land (tres sitios de tierra) in the same presidio in which I reside, and outside of the boundaries thereof, and on the side of the north, and one square more (un sitios mas) for an 'estancia' in the place of the 'cajoncito' on the side of the east;" and prayed for a measurement of the lands by the proper officers, and for a valuation of the same. Upon this petition the intendente ordered a measurement of the lands, summoning the adjacent landowners, and appointing appraisers for the valuation of the land, publication to be made for 30 days for the purpose of soliciting bidders. The measurements were made (the details of which are fully set forth) from a a central point, named "San Rafael," two leagues in each direction, i. e. to the four points of the compass, and monuments were put up on the four corners of the square as well as in the center of the four exterior lines. All these monuments were placed at the time the lands were measured under the authority of the government. The monuments included 4 leagues square, or 16 square leagues.

Upon the completion of this survey the lands were valued at $60 each for the three square leagues, for the reason that they contained permanent water, and the remaining square league at $30, for the reason that it contained no water except such as was furnished by wells. The land wasthereupon put up at auction, and, after some spirited bidding between Bustillo and Romero, was struck off to the latter at $1,200, and the grant made to him by the proper officer in the name of the Mexican republic, in which the land is described as four square leagues for the raising of cattle, (cuatro sitios de tierra para cria de ganado mayor,) included in the place called "San Rafael de la Zanja," situated in the jurisdiction of the presidio of Santa Cruz, to Don Ramon Romero and other citizens (vecinos) interested. The grantees were also required to confine themselves within their respective limits, "which are to be designated by monuments of lime and stone," (mojoneras de cal y canto,) and were guarantied the free enjoyment and quiet and peaceful possession of said lands.

A petition to the surveyor general of the territory of Arizona was filed February 28, 1880, by the heirs of Romero for the confirmation of this grant, under an act of congress of July 22, 1854, (10 St. p. 308,) as marked by the survey and monuments. See, also, act of July 15, 1870, (16 St. p. 304.) The surveyor general reported that the grant should be confirmed to the extent of four square leagues, and no more.

The court found that the fence maintained by the defendant was within the exterior boundaries of the grant, as said boundaries

were recited as measured in the expediente, and outside the four square leagues measured by the surveyor general; that the defendant had succeeded to all the rights of Romero in the grant, and was and had been in possession of all the buildings on the four square leagues surveyed by the surveyor general, and claimed, and had always claimed, title to the possession of all the land within the exterior boundaries as measured in the expediente, claiming title thereto; "that the report of the said surveyor general upon said grant has never been finally acted upon by congress; and that said claim and said report are still pending before congress."

Upon proof of the foregoing facts, we think it clear that defendant established a color of title to the lands in question. In Wright v. Mattison, 18 How. 50, 56, it was said by Mr. Justice Daniel: "The courts have concurred, it is believed, without an exception, in defining 'color of title' to beg that which in appearance is title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title. The inquiry with them has been whether there was an apparent or colorable title, under which an entry or a claim has been made in good faith. A claim to property, under a conveyance, however inadequate to carry the true title to such property, and however incompetent might have been the power of the grantor in such conveyance to pass a title to the subject thereof, yet a claim asserted under the provisions of such a deed is strictly a claim under color of title." In that case a tax deed was held to convey a colorable. title. And in Gregg v. Sayre, 8 Pet. 244,. a deed purporting to convey a title in fee, which was fraudulent as to the grantor, but which the grantee had accepted in good faith, was held to have the same effect. In. Bryan v. Forsythe, 19 How. 334, it was held that under an act of congress making a general grant of land to the inhabitants of a village, when the survey was made and approved, by which the limits of the lot. were designated, the title was such as to sustain an action of ejectment even before a patent was issued. To the same effect are Pillow v. Roberts, 13 How. 472; Meehan v. Forsyth, 24 How. 175; Gregg v. Forsyth, Id. 179; Hall v. Law, 102 U. S. 461; Deffeback v. Hawke, 115 U. S. 392, 407, 6 Sup. Ct. Rep. 95.

It is true there are cases to the effect that color of title by deed cannot exist as to lands beyond what the deed purports to convey; but where the deed is fairly open to construction as to what it does purport to convey, and at the time it was executed the land was officially surveyed according. to the theory of the party claiming under. such deed, it is manifest these authorities

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have no application. Color of title exists wherever there is a reasonable doubt regarding the validity of an apparent title, whether such doubt arises from the circumstances under which the land is held, the identity of the land conveyed, or the construction of the instrument under which the party in possession claims his title.

While a grant of four square leagues of land in the place called "San Rafael de la Zanja," standing alone, would appear to have been a grant of a certain quantity of land, when it appears by the same instrument that the limits of the grant were to be designated by monuments of lime and stone, that such designation was actually made, and that juridical possession of the land was delivered in pursuance thereof, it is at least open to doubt whether it does not fall within the class of concessions by specific boundaries, as these grants are distinguished in U. S. v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177. Under the view taken by the court below, that the grant was of only four square leagues of land, it was evidently a mere float, and defendant would have no -color of title to any specific land, until the same was designated, and would have no authority to maintain a fence around any part of the tract. In the case of Fremont v. U. S., 17 How. 542, a grant of a tract of land known as "Mariposas," to the extent of 10 square leagues within the limits of the Sierra Nevada and certain rivers, was held to convey a present and immediate interest to so much land to be afterwards laid off by official authority. As no survey in that case was made, it was held to be a grant of quantity only. The same ruling was made with regard to the Moquela mos grant, which was described as "bounded on the east by the adjacent sierra." U. S. v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177. See, also, U. S. v. Armijo, 5 Wall. 444; Higueras v. U. S., Id. 827; Alviso v. U. S., 8 Wall. 337; Hornsby v. U. S., 10 Wall. 224.

It is evident that the lands in question were not public lands of the United States within the meaning of that term as used in the acts of congress respecting the disposition of public lands. As early as 1839 it was held by this court in Wilcox v. Jackson, 13 Pet. 498, that whenever a tract of land had once been legally appropriated to any purpose, it became from that moment severed from the mass of public lands. In that case there was a reservation of lands for a military post, for an Indian agency, and for the erection of a lighthouse, and it was held that the lands so reserved were not subject to entry at the land office. So in Leavenworth, etc., Ry. Co. v. U. S., 92 U. S. 733, the doctrine of the former case was reaffirmed and held to apply to Indian reservations. And in Newhall v. Sanger, Id. 761, lands within the boundaries of an alleged Mexican or Spanish grant, which were sub

Judice at the time the secretary of the interior ordered a withdrawal of the lands along the road of a certain railroad, were held not to be embraced in a grant to the company. Speaking of such claims, it was said by Mr. Justice Davis "that claims, whether grounded upon an inchoate or a perfected title, were to be ascertained and adequately protected. This duty, enjoined by a sense of natural justice and by treaty obligations, could only be discharged by prohibiting intrusion upon the claimed lands until the opportunity was afforded the parties in interest for a judicial hearing and determination. It was to be expected that unfounded and fraudulent claims would be presented for confirmation. There was, in the opinion of congress, no mode of separating them from those which were valid, without investigation by a competent tribunal; and our legislation was so shaped that no title could be initiated under the laws of the United States to lands covered by a Mexican or Spanish claim, until it was barred by lapse of time or rejected." It was urged in that case that the reservation could only be of lands "lawfully" claimed, but it was said expressly that there was no authority to import the word "lawful" into the statute in order to change its meaning, and that the act in question expressly excluded from pre-emption and sale all lands covered by any foreign grant or title. In Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228, it was held that, if the grant was of a specific quantity within designated outboundaries containing a greater area, only so much land within the outboundaries as was necessary to cover the specific quantity granted was excluded from the grant to the railroad companies. Indeed, the cases in which these rules have been applied to lands reserved for any purpose whatever are too numerous even to require citation. In this case there is an express finding that the report of the surveyor general, limiting the grant to four square leagues, has never been finally acted upon by congress, and that the claim and report are still pending before congress; in other words, that the claim is sub judice.

It is true that in the act of July 22, 1854, (10 St. p. 308,) establishing the office of surveyor general for New Mexico, (then including Arizona,) there is a provision, which is omitted in the act of July 11, 1870, (16 St. p. 230,) establishing the same office for Arizona, that "until the final action of congress on such claims all lands covered thereby shall be reserved from sale or other disposal by the government, and shall not be subject to the donations granted by the previous provisions of this act;" but as the sundry civil appropriation act of that year (16 St. p. 304) provides that the surveyor general of Arizona shall have all the powers and perform all the duties enjoined upon the surveyor general of New Mexico, there could