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tion of the board of directors and officers road of the New Orleans Pacific Railway of a float. It is of sections to be afterof the former company was afterwards ap- Company.

ward located, their location depending proved and ratified by the stockholders The following are the questions sub- upon the establishment of the line of the thereof at a meeting held in December, mitted :

road. Until this is definitely fixed, the 1881.

“1. Was the grant of the New Orleans, grant does not attach to any specific tracts The New Orleans Pacific Railway Com- Baton Rouge and Vicksburg Railroad of land. Upon the line of the road being pany was originally incorporated under Company a grant in presenti ?

definitely located the grant then first acthe general laws of the State of Louisiana " 2. Had the New Orleans, Baton quires precision, and the company becomes in June, 1875. Its charter was subse- Rouge and Vicksburg Railroad Company, invested with an inchoate title to the parquently amended by acts of the Louisiana at the date of its alleged transfer of lands ticular lands covered thereby, which can legislature, passed February 19, 1876, and to the New Orleans Pacific Railway Com- ripen into a perfect title only as the conFebruary 5, 1878. It is thereby authori- pany, such an interest in the lands, under struction of each section of twenty miles zed to construct a railroad " beginning at said act, as was assignable ?

of road is completed and approved, when a point on the Mississippi River, at New "3. Is the New Orleans Pacific Railway the right to patents for the lands opposite Orleans or between New Orleans and the Company such a successor to or assignee to and co-terminous with such constructed parish of Iberville, on the right bank of of the New Orleans, Baton Rouge and section accrues. the Mississippi, and Baton Rouge, on the Vicksburg Railroad Company as is con- The proviso in the grant that the company left bank, etc., or from any point within templated by said act ?

shall complete the whole of its road withthe limits of this State, and running thence " 4. Should it appear that the 68 miles in five years from the date of the act is a towards and to the city of Shreveport,” of the New Orleans, Mobile and Texas condition subsequent, the failure to perwhich is made its northwestern terminus. Railroad was constructed prior to the act form which does not ipso facto work a

The route of this company as projected of March 3, 1871, granting lands to aid forfeiture of the grant, but only gives rise is understood to extend from New Orleans in the construction of the New Orleans, to a right in the government to enforce a to Baton Rouge, and thence by way of Baton Rouge and Vicksburg Railroad, can forfeiture thereof. Yet in order to enAlexandria to Shreveport. Between New the New Orleans Pacific Company (its as- force a forfeiture such rights must be asOrleans and Baton Rouge it lies on the signee) claim any benefit from the grant? serted by a judicial proceeding, authorized west side of the Mississippi River; while Or in case of such prior construction, and by law, or by some legislative action the designated route of the New Orleans, the non-construction of any portion of the amounting to a resumption of the grant. Baton Rouge and Vicksburg Railroad New Orleans, Baton Rouge and Vicksburg (Schulenberg is. Harriman, 21 Wall., 44.) Company, between the same points, lies Road, has the purpose for which the grant Hence, until advantage is taken of the nonon the east side of that river. Between was made failed, and the grant conse- performance of the condition, under legisBaton Rouge and Shreveport its general quently lapsed ?

lative authority, the interest of the grantee course and direction correspond, in the "5. If the New Orleans, Mobile and Texas in the grant remains unimpaired thereby. main, with the route designated by the Road was constructed, subsequently to Such being the nature and effect of the last-named company. It is throughout its the date of said act, is so much of its road grant and its accompanying condition, and entire length from New Orleans to Shreve- as is now owned by the New Orleans Pa- no action having been taken either by legport within the limits of the before-men-cific Company such a road as is contem-islation or judicial proceedings to enforce tioned withdrawals of public lands. plated for acceptance by the President a forfeiture thereof, it follows that at the

In October, 1881, the president of the within the meaning of said act, and may period of said transfer by the New OrNew Orleans Pacific Railway Company patents issue to the latter for lands oppo- leans, Baton Rouge and Vicksburg Railmade affidavit that three sections of its site to and co-terminous with such con- road Company this company was invested road were then completed and really for structed portion of road?”

with a present interest in the number of alexamination by the government; where- These questions are accompanied by a ternate sections of the public lands per mile upon a commissioner was appointed to request for an opinion upon such other granted by the act of 1871, notwithstandexamine the same, the result of whose ex- questions of law as may suggest them- ing it was already in default in the peramination appears in a report made by selves touching the transfer of said land formance of the condition referred to, and him to the Secretary of the Interior, grant, to which reference is above made. that it still retained a right to proceed under date of the 26th of that month. Of the above-stated questions the first with the construction of the road in aid of One of the sections embraces 68 miles of three may be considered together in con- which the grant was made, until advantage road, beginning on the west bank of the nection with the following inquiry, which should be taken of the default. But as it Mississippi River, opposite New Orleans, presents itself at the outset, whether the had not then definitely fixed the line of its and ending near the town of Donaldson- assent of Congress to the transfer made by road, although a map designating the genville ; another embraces 20 miles of road the New Orleans, Baton Rouge and Vicks- eral route thereof was duly filed, that innear Alexandria ; and the third embraces burg Railroad Company of all its interest terest did not attach to any specific tracts 50 miles of road terminating at Shreve. in said land grant to the New Orleans Pa- of land, but remained a float, as it were, port. For each of these sections lands cific Railway Company is necessary (by needing a definite location of the road beare claimed by that company under the reason of anything in the provisions of fore it could become thus attached. Was aforesaid land grant, as assignee of the the grant itself) to entitle the latter com- the interest here described assignable to New Orleans, Baton Rouge and Vicksburg pany to the benefit of said grant in aid of another company, so as to entitle the latRailroad Company.

the construction of the road projected by ter to the benefit of the grant in aid of the No map of definite location of any por-it.

construction of its road between the places tion of its road has been filed, other than The act of March 3, 1871, passed to the named therein, without the assent of Conthose of the constructed portions.

New Orleans, Baton Rouge and Vicks-gress? It appears that in February, 1881, the burg Railroad Company a present interest Doubt has perhaps arisen on this point New Orleans Pacific Railway Company in a certain number of alternate sections in view of the fact that in one or two inpurchased from Morgan's Lousiana a nd of public lands per mile within the limits stances it has been thought expedient to Texas Railroad and Steamship Company, there prescribed. Its language is "there obtain legislation by Congress confirming the road constructed on the west bank of is hereby granted to the said company” or authorizing a similar assignment (see the Mississippi River by the New Or. the number of alternate sections men- section 2 of the act of March 3, 1865, leans, Mobile and Texas Railroad Com- tioned; words which import a grant in chapter 88, and section 1 of the act of pany, from Westmego to White Castle, a pra senti, and not one in futuro, or the March 3, 1869, chapter 127), and also in distance of 68 miles, and that the same promise of a grant. (97 U. S. Rep., 496.) view of the adverse ruling of this departhas become a part of the main line of the But the grant thus made is in the nature' ment in the case of the Oregon Central

Had a


Railroad Company. (13 Opin. 382.) consideration of those provisions, the Ore-Congress to the assignment made by the However, a similar assignment made in gon Central Company was alone within New Orleans, Baton Rouge and Vicksburg 1866 by the Hannibal and Saint Joseph the contemplation of Congress in respect Railroad Company, as above, is not necesRailroad Company to the Pike's Peak of the donations made and duties imposed sary in order to entitle the assignee to the Railroad Company, afterward known as by that act. The words their successors benefit of the land grant in question. the Central Branch. Company, was held to and assigns," as used in the act, were re- The remaining questions relate to the 68 be valid by Attorney-General Stanbury in garded as words of limitation merely. miles of railroad formerly belonging to the an opinion given to the Secretary of the But the grounds upon which that de- New Orleans, Mobile and Texas Railroad Treasury under date of July 25, 1866. cision appears to have been based are not Company, but now owned by the New

In the latter case the Hannibal and found to exist in the case now under con- Orleans Pacific Company, and made apart Saint Joseph Company, which was incor-sideration. Here a grant of a certain of its main line between New Orleans and porated by the State of Missouri, with au- number of alternate sections of public Baton Rouge. thority to construct a railroad between lands per mile is made to the New Orleans, The land grant in question was, as its Hannibal and Saint Joseph, within that Baton Rouge and Vicksburg Railroad language imports, made in aid of the conState, was by the Pacific Railroad act of Company, its successors and assigns, instruction of a railroad between certain terJuly 1, 1862 (section 13), authorized to aid of the construction of a road from mini, contemplating a road to be con" extend its road from Saint Joseph, via New Orleans, by the route indicated, to structed, not one already constructed. It Atchison, to connect and unite with the connect with the eastern terminus of the has not been the policy of Congress thus road through Kansas, * * * and may for Texas and Pacific railroad, which lands are to aid constructed roads. this purpose use any railroad charter required to be withdrawn from the mar- structed road existed at the date of the which has been or may be granted by the ket, selected, and patents issued therefor, grant, which extended from one terminus legislature of Kansas," etc., and by the and opened for settlement and pre-emption to the other, and afterwards the New Orfifteenth sections of the same act it was upon the same terms and in the same leans, Baton Rouge and Vicksburg Railprovided that “wherever the word com- manner and time as is provided for and road Company, instead of entering upon pany is used in this act it shall be construed required from said Texas Pacific Railroad and completing the construction of a road, to embrace the words their associates, suc- Company.” The grant is coupled with no had purchased the road already concessors, and assigns, the same as if the special duties or trusts, for the perform structed, this, it seems to me, would not words had been properly added thereto.” ance of which there is reason to believe have satisfied the purposes of the grant so Subsequently, in 1863, an assignment was the particular company named therein was as to entitle the company to the benefit made by that company of all its rights un- more acceptable to Congress than any thereof. The same objection would apply der said act (which included an interest other. Its purpose is to secure the con- where the constructed road extended over in both a land and a bond subsidy) to the struction of a railroad between the points only a part of the route contemplated by Atchison and Pike's Peak Railroad Com- designated, and whether this purpose be the grant. So far as I am advised, the pany, a company previously organized un- fulfilled by that company or by another action of the government hitherto has der a charter granted by the legislature company must be deemed unimportant in accorded with this view. On the other of Kansas. The latter company having the absence of any provision indicative of hand, if such road was constructed subseconstructed a section of 20 miles of the the contrary. The interest derived by the quently to the date of the grant, and is proposed road west from Atchison, claimed grantee, though it remain only a float, is a owned by the grantee or the assignee of the benefit of the grant made to the Han- vested interest, and is held under the the latter, I see no ground for excluding nibal and Saint Joseph Company as its same limitations which apply after it de- it from the benefit of the grant should it assignee, and this claim was recognized velops into an estate in particular lands otherwise fulfill the requirements thereof. and allowed, in accordance with the opin- until extinguished by forfeiture for non- Agreeably to the foregoing views, and ion of the Attorney-General. It will be performance of the condition annexed to in direct response to the several questions observed, however, that the Hannibal and the grant. I perceive no legal obstacle submitted, I have the honor to reply as Saint Joseph Company was authorized to arising out of the grant itself to a transfer follows: The first, second, and third ques“use any railroad charter which has been of such interest by the grantee to another tions I answer in the affirmative. The or may be granted by the legislature of company; and should the latter construct fourth question (including the alternative Kansas," and this, together with the pro- the road contemplated agreeably to the added thereto) I answer in the negative. vision in the fifteenth section quoted requirements of the grant, and thus ac- The fifth question I answer in the aflirmaabove, may have been regarded as suffi- complish the end which Congress had in tive-assuming, as I do, the company cient to sustain the assignment.

view, I submit that it would clearly be named therein to be ay assignee of the In the case of the Oregon Central Rail-entitled to the benefits thereof. road Company, mentioned above, a grant The question of the assignability of the grantee in the act referred to.

BENJAMIN HARRIS BREWSTER, of a right of way through the public lands, interest of the grantee would be more

Attorney General. and also of alternate sections thereof, was difficult if, after definitely locating the line Hon. H. M. TELLER, made to that company, " and to their suc- of its road, and thus attaching the grant Secretary of the Interior. cessors and assigns,” by the act of May 4, to particular lands along the same it was 1870, chapter 69, for the purpose of aiding proposed to transfer that interest to an

PRIVATE LAND CLAIMS. in the construction of a railroad and tele- other company for the benefit of a road to graph line between certain places in Ore- be constructed by the latter on a different

PETER SHERREBACK CLAIM. gon. In August following, an instrument line, though following the general course Status of this claim, which is situated within was executed by the company assigning of the other road. But in the present case the Pueblo of San Francisco. all its interests in the grant to the Willam- the facts give rise to no such difficulty. COMM'R MCFARLAND to Surveyor-Gen, Brown, ette Valley Railroad Company, and there. The grant had not previous to the transfer San Francisco, Cala. Apr. 18, 1883. (J. R. D.) upon the question arose whether the grant become thus identified with a particular It appears from the record in the case was susceptible of being thus transferred. line of road, and was thereafter susceptible of the Peter Sherreback claim situated The Attorney-General (Mr. Akerman), to of location upon the line of the road pro- within the limits of the Pueblo of San whom the question was submitted, after jected by the assignee (the New Orleans Francisco, that application for the cofirreviewing the various provisions of the act, Pacific Company), provided this road met mation thereof, made to the Board of some of which (see section 5) imposed the requirements of the grant in other Land Commissioners, was denied, but on certain duties and required certain import- respects, as to which no doubt is sug- appeal from said decision to the United ant acts to be performed by the company, gested.

States District Court, before Hon. Ogden decided in the negative, holding that upon My conclusion is that the assent of Hoffman, judge of said court, it was con


firmed to the claimant for eight varas engaged in the exercise of its appellate Judge of the Court organized under this square by decree of Dec. 5, 1879: jurisdiction from decisions of the Board act is hereby authorized to hold said That afterwards in the same court, held / of Land Commissioners.

court,” etc. by Hon. M. Hall McAllister, United And objecting

The Circuit Judge having, by himself States Circuit Judge, under section 6, of Ist. That the evidence of the “opinion” alone, constituted the court, the continthe act of March 2, 1855, (10 Stat., 636) required from the Circuit Judge is con- gency enabling him legally to do so, upon application on the part of the spicuously absent from the record. though not set forth in the record, will be United States, filed on the 26th of May 21. That the record nowhere shows that presumed to have occurred. 1860, and upon hearing of both parties, the clerk of the District Court gave the With regard to what must appear in the by order of June 2, 1860, the decree of notice requireil.

record to justify and uphold judicial action, confirmation was vacated and set aside 3d. That the only evidence in the record a distinction is made between the judg. and a new trial and hearing granted, at of the purpose for which the court was ments of superior and inferior tribunals. which as directed by said order both parties sitting is the entry in the minutes of the The District Courts of the United States, were to be permitted to present further opening of the court, to wit: “for the though their decisions are subject to reproofs, said order also recognizing a mo- trial of land cases ;” but not showing that view on appeal, are not nevertheless as tion on the part of the claimant, to rein- they were cases pending on appeal from to their construction, action and ordinary state the decree of Dec. 5, 1859, and set- the Land Commission, of which only the jurisdiction, though the latter is entirely ting the same for hearing, without further court, as constituted, could have jurisdic- statutory, inferior courts. notice on the first Monday of July, tion.

In McCormick and wife et al. vs. Sulli. 1860 :

These objections are severely and forci- vant et al. (10 Wheaton, 192), the Superior That the motion to reinstate the vacated bly urged by the counsel, the summing up Court held, as per head-note: “ The Courts decree was heard in the District Court of the argument being, “ that the vacating of the United States are of limited jurisdicheld by Hon. Ogden Hoffman, District order was ultra vires, and that the decree tion; but they are not technically interior Judge, on the 28th day of August, 1860, of December 5, 1859, is in full force." courts; their judgments and decrees are the United States and the claimant being The question presented is as to the jur- binding until reversed, though no jurisdicrepresented, and denied :

isdiction of the court, and the points of tion be shown on the record.It may be That on the 20th day of June and the objection thereto naturally divide them- urged that the rule here stated applies to 14th and 30th days of July, 1862, orders selves into those that relate to form, and cases and subjects coming within the scope were made in said District Court by that which has regard to substance. Of of their ordinary jurisdiction only. This Judge Hoffman, extending the time for the former class are the first and second will be considered further on. closing the proof's in said case; the order objections stated in the brief of the coun. In Grignon's Lessee et al. vs. Astor et al. of the 14th of July having been inade on sel, and of the latter, the third. They (2 Howard 319), which was case in a motion of claimant's counsel, and it not will be considered in their order : county court having probate jurisdiction, appearing upon whose motion the other First. The section of the act referred to, for license to sell the decedents' estate, two orders named were granted.

under which the Court making the vacat- one question being whether the record susIt does not appear in the case that ing order was held, authorizes the Circuit tained the jurisdiction of the court, the further proofs were produced, or that a Judge, " at any time when in his opinion Supreme Court held as follows: new trial

hearing was had the business of his own Court will permit “ The granting the license to sell is an therein, in pursuance of the order of the and that of the Courts of the northern adjudication upon all the facts necessary court, by Judge McAllister, of June 2, and southern districts of California re- to give jurisdiction, and whether they ex. 1860.


quire,” to sit in the District Court, etc. isted or not, is wholly immaterial, if no On the 21st of October, 1882, the pres It is hardly to be supposed that the appeal is taken. The rule is the same ent claimants, by A. Everett Ball, Esq., Circuit Judge would attend and assume whether the law gives an appeal or not; their attorney, made application to your to hold the District Court, unless in his if none is given from the final decree, it is office for a survey of the claim under the opinion the business of the two courts pre- conclusive on all whom it concerns. decree of confirmation of December 5, sented the conditions contemplated by the It may also be fairly assumed, as to the 1859, as foundation for a patent of the statute. On the contrary the presumption objections under consideration, that the same, alleging that the order setting aside arising from this act forces the conclusion provisions of the statute upon which they said decree was void, etc., which applica- that he entertained the required opinion. are founded are merely directory; and tion was referred by you to this office, by The statute did not require him to make the main object of the statute, the holding your letter of October 21, 1882, for direc- either written proclamation or record of it. of the court in the manner and for the purtion in the premises.'

Second. The statute, in the cases con- pose intended, having been attained, that December 1, 1882, L. D. Woodworth, templated by it, makes it the duty of the its action cannot be defeated nor prejuEsq., entered appearance before this Oflice clerk of the District Court" to give thirty diced by the want of literal compliance for the claimants, and on the 21st of the days' written notice to the Judge of the with the preliminary directions, if such same month filed a brief and argument in Court organized under this act,” (to wit : want of compliance occurred. support of their application for a survey the Circuit Judge) “ of the time and place The following is the rule applicable to and patent, claiming :

of the sitting of such District Court for this view of the subject : That patent should issue under 2447 the discharge of such appellate jurisdic " When statutes direct certain proceedRevised Statutes, setting forth as ground tion,” etc.

ings to be done in a certain way or at a for application that the statute under The notice required was for the inform- certain time, and a strict compliance with which the court was held by Judge McAl- ation of the Judge merely, it had no rela- these provisions of time and form does lister, in which the vacating order was tion to parties; and the Judge having not appear essential to the judicial mind, made, required as preliminary steps to be attended and held the term, it must be the proceedings are held valid, though the taken, before a judge of the circuit court presumed that he had the prescribed command of the statute is disregarded or could sit in the district court notice.

disobeyed. (Sedgwick on Construction of First. That in his opinion the business The same may be said of the holding Statutory and Constitutional Law, 316.) of his own court must permit, and that of the Court by the Circuit Judge alone, Directory acts are said to be those the district court require it.

which is not made a point of objection by which are not of the substance of the thing Second. That a notice of thirty days the counsel. The statute provides, that provided for.(Id. note A, citing McKune must be given by the clerk of the district in case the Judge of such District Court vs. Weller, 11 Cal., 49; and see same note court to the circuit judge; and,

shall fail, from sickness or other casualty, for examples of statutes held to be directThird. That the district court must be to attend at such time and place, the ory.)


“Where the words are affirmative, and of confirmation of Dec. 5, 1859, is headed as supposed by claimants' counsel. That relate to the manner in which power or in the usual manner, with a statement of section applies only to cases where no jurisdiction vested in a public body and the term of the court, the presence of the provision is made in the confirmatory semble a public officer), “is to be exer- judge, and the title of the case, the latter statute for the issue of a patent. The cised, and not to the limits of the power being as follows: “ Peter Sherreback vs. several acts which have provided for, or or jurisdiction itself, they may be, and The United States, No. 356." It then had reference to the confirmation of prioften have been, construed to be direct- proceeds: " This cause came on to be vate land claims in California, authorize ory ; but negative words, which go to the heard on appeal from the final decision of the issuing of patents on all claims conpower or jurisdiction itself

, have never, the Board of Land Commissioners to as-firmed under them. that I am aware of, been brought within certain and settle the private land claims The application of the claimants is dethat category. A clause is directory, says in the State of California," etc., and is nied. It would seem that their remedy Taunton, J., when the provisions con- signed “Ogden Hoffman, District Judge." must he sought in the United States Distained mere matters of direction and no The order of June 2, 1860, vacating the trict Court under the order of the court more, but not so when they are followed above decree, is headed : “ In the District granting them a re-hearing in the case or by words of positive prohibition." (Wells Court of the United States, in and for the otherwise. on the Jurisdiction of Courts, 56, citing Northern District of California.”

The Bladen vs. Philadelphia, 60 Pa. St., 466.) case is entitled: “ Peter T. Sherreback vs. SUPREME COURT OF COLORADO. .

The provisions contained in the act in The United States, No. 356. District question in this case, preliminary to the Court, No. 795, Land Commission."

POIRE VS. WELLS. exercise of the jurisdiction conferred by After preliminary recitals it proceeds: Public Lands -A patent, granted by the United it, are clearly within the rule as declared " It is hereby ordered, that the decision States Land Department is unassailable, exby the authorities here cited. and decree heretofore entered in this court cept in a direct proceeding, if the department

had jurisdiction to act. The land officers act The first and second objections of the in this cause, on the 5th day of December,

judicially, and their decision is conclusive in case are overruled.

1859, be and the same is hereby vacated all collateral proceedings. Third. The third objection goes to the and set aside, and that there be a new Mineral Grounk. It is within the jurisdiction of substance or subject matter of the order trial and hearing in this action," etc. The the United States Land Office to determine vacating the decree of confirmation; and order is signed, " M. Hall McAllister,

whether any part of the public domain is though it has been held that courts, prop- Judge Cir. Court U. S. District of Cal.” Toron-sitc. -A town-site is not exempt from loca

“mineral ground."! erly constituted, determine their own jur The minute of the court, a certified tion as mineral land. isdiction, and that their judgments are copy of which is produced by the claim- Claim.-A claim may include any number of conclusive, and binding upon all parties, ants, simply shows that the term was held adjacent locations. courts and public officers, until set aside by the Circuit Judge, " for the trial of Beck, C. J– Wells, the appellee, brought or reversed on appeal by judicial author- land cases." The title and number of the an action against the appellant in the Disity, I apprehend that there is some dis- cases are given, with this entry: “Order trict Court of Lake county, on the 30th tinction to be made, that the broad rule entered setting aside decree and granting day of April, 1879, to recover the possesshere stated has application more especially a rehearing."

ion of lot thirteen, block. 6, of Stevens & to subjects of ordinary or general juris The decree of confirmation, the order Leiter's subdivision of United States surdiction; and that where the jurisdiction is of June 2, 1860, vacating it, and the vey No. 271. special, or where created by special stat- minute of the court above, constitute the The lot in controversy is situated in the ute and directed to a special purpose, it whole record, as far as relates to the sub-city of Leadville. Plaintiff claims title should affirmatively appear by the record, ject matter of the jurisdiction of the court through Stevens & Leiter, to whom a pattested by the provisions of the statute. making the vacating order. The claimants ent was granted by the United States on There is such a thing as a judgment void do not seek to go back of the decree of the 5th day of November, 1878, for a tract for want of jurisdiction; and if void, of Dec. 5, 1859, but rely upon it, making it of land embracing the lot in controversy. course no judgment, and no legal protec- the object of their application. The The defendant's amended answer sets tion to parties or officers acting under it. statement in that decree, quoted above, up, among other defences, that this pat-· Whoever is called to execute it must act shows explicitly that in making it, the ent, which is the source and foundation of upon his peril. (See Wells on Jurisdic- court was “engaged in the discharge of plaintiff's title, is fraudulent and void. tion, quoted above, p. 11, and cases cited). the appellate jurisdiction vested in it over That prior to any claim made by Stevens It must, therefore, be competent, when the decisions of the Board of Commission. & Leiter to the premises in controversy, action is required having reference to a ers for the settlement of private land and while said lot and premises comprised judgment or order founded upon a tech-claims in the State of California," being a portion of the public domain of the nical and special authority to be exercised the precise subject of jurisdiction as to United States, and was unoccupied and by a court specially constituted, to exam- which the Circuit Judge was authorized unclaimed by any one, the defendant's ine as to its validity.

to sit, and act in the District Court. grantor took possession of the same and The statute referred to, under which The order of June 2, 1860, was but a made valuable and permanent improvethe court granting the vacating order of continuation of the former proceeding ments thereon. Afterwards, when the said June 2, 1860, was held, provides : opening the case by vacating the decree Stevens & Leiter made their application

That the judge appointed under this and granting a rehearing with permission for a patent to ground including said lot, act (“ the Circuit Judge,”) shall from to the parties to produce further proofs, they induced defendant's grantor to refrain time to time

form part of, etc. This is shown by the title and num- from adversing their application, by false and preside over the said district courts ber of the case in the order, and its ex- and fraudulent representations, and by for the Northern and Southern Districts press reference to the decree by its date. promises to execute a deed of conveyance of California, "when either of the appel. There was no new jurisdiction invoked, to him of said lot, after issue of the patent, late jurisdiction vested in it over the de- and that exercised was that which the in consideration of his claim and improvecisions of the Board of Commissioners for act expressly conferred upon the Circuit ments and the payment of the nominal the settlement of private land claims in Judge when sitting as the District Court. sum of $25. That in violation of said the state of California,” etc., and said The jurisdiction being shown affirma- promises, they fraudulently conveyed the judge is authorized to sit alone and by him- tively by the record, the claimant’s third lot to the plaintiff, after issue of the patent. self constitute the District Court in the objection is overruled, and the order of It is charged that the grantees named in contingency before considered. June 2, 1860, held to be valid.

the patent imposed upon the officers of The record in the present case shows Patent could not issue in this case in the Government, by causing false and the following proceedings : The decree any event under Revised Statutes 2447, fraudulent representations to be made



them for the purpose of procuring this the disposition of the public lands, and ground. This was a question of fact cog. patent. They represented that the ground the various steps and proceedings neces- nizable by the Land Department, and the covered by it was placer mining ground, sary to be taken and had, especially in ap- presumption obtains that the evidence and the patent was granted for a placer plications for mineral lands before the produced before it upon this, and all other mining claim, whereas the land granted title can pass by the issuance of a patent. matters properly determinable by it, juswas not and never had been placer ground. He says the various provisions are all su- tified its action in executing the grant.

Another charge of fraud is in these pervised by the Land Department, which The answer avers that the patent is void words : " That on, to wit, the first day of has been created for this purpose, and for upon its face, for the reason that the land July, A. D. 1878, and long before any ap- the purpose of seeing that the require- embraced within it was a town-site, replication for such mining patent had been ments of different acts of Congress are served from sale under the mining laws of made, the ground included in and covered fully complied with.

the United States, and that it covers sevby said patent was a natural and pros- This department constitutes a part of eral separate locations made since July 9, pective center of population for a town the administrative and executive branch 1870, containing more than twenty acres site, with a population of about 10,000 of the Government. The oflicers of this for each individual claimant, and exceedpeople, with township organization department hear testimony upon the mat- ing in the aggregate one hundred and sixty known as the town of Agassiz, with town ters presented for their consideration and acres of land. officers, streets, alleys, schools, churches, pass upon their credibility and weight. In In the case of Steele vs St. Louis Smeltsmelters, banks and residences, and was this respect they exercise a judicial func- ing and Refining Company, supra, the anwholly reserved from location, entry or tion, and their judgment as to matters of swer contains an averment, that the defensale under the mining laws of the United fact properly determined by them is con- dants were the owners of the land in conStates, or the State of Colorado, and that clusive when brought to notice in a col- troversy," by superiority of possessory said Stevens & Leiter well knew that fact lateral proceeding. Upon issuance of the title and priority of actual possession," when they made application for said patent the presumption obtains that all of the premises, as part of a town-site on patent.”

the requirements preliminary to its issue the public domain of the United States, loIt is further charged that the patent have been complied with.

cated and occupied since June, 1860. covers several distinct and separate loca- The court holds that this presumption Upon this question Mr. Justice Field tions, containing more than twenty acres is not open to rebuttal in an action at law, says : “ Land embraced within a townfor each individual locator, which were and that the patent itself is unassailable, site on the public domain, when unoccumade since July 9, 1870. That the patent except by a direct proceeding in equity pied, is not exempt from location and sale contains more than 160 acres of land, all for its correction or annulment.

for mining purposes; its exemption is only of the locations covered by it aggregat- This doctrine is limited to cases where from settlement and sale, under the preing 2981% acres. That separate applica- the Land Department had jurisdiction to emption laws of the United States. tions were not made for each location. act and to execute the grant. Where a of the most valuable mines in the country That proper notices were not posted; that want of jurisdiction in the Land Depart- are within the limits of incorporated cities, the proper work was not done on each lo- ment exists, its action is held to be exam- which have grown up on what was, on its cation; separate notices of the intention aminable at law. The court cites, as ex- first settlement, part of the public domain, to apply for patent were not published, amples of want of jurisdiction, cases where and many of such mines were located and nor were separate plats, surveys or ab- the lands did not belong to the United patented after a regular municipal govstracts filed as required by law.

States, or had previously been disposed of, /ernment had been established.” The plaintiff demurred to that portion or where Congress bad made no provisions He further says: “ The acts of Congress of the amended answer which denied the for their sale, or had reserved them from rélating to town-sites recognize the possesvalidity of the patent, assigning as ground sale.

sion of mining claims within their limits, of demurrer that the patent cannot be at- It is further said, that whenever the and forbid the acquisition of any mine of tacked in a collateral proceeding, but for patent is absolutely void on its face, it gold, silver, cinnabar or copper within the purposes of this suit is conclusive evi- may be impeached collaterally in a court them, under proceedings by which title to dence of the title of the patentees to the of law. The expression “ void on its face,” other lands there situated is secured, thus premises conveyed therein.

is defined to mean "that the patent is seen leaving the mineral deposits within townThe demurrer was sustained, and the to be invalid, either when read in the light sites open to exploration, and the land in defendant elected to abide by his said of existing law, or by reason of what the which they are found to occupation and amended answer.

The cause was then court must take judicial notice of; as, for purchase, in the same manner as such detried by the court without a jury, result- instance, that the land is reserved by stat-posits are elsewhere explored and posing in a finding and judgment for the ute from sale, or otherwise appropriated, sessed, and the lands acquired. Revised plaintiff.

or that the patent is for an unauthorized Statutes United States, Section 2386, By stipulation of counsel for the re-amount, or is executed by officers who are 2392." spective parties, the only question pre- not entrusted by law with the power to The learned justice concludes as fol. sented for our consideration is the validity issue grants of portions of the public lows upon this branch of the case: of the patent. domain."

“Whenever, therefore, mines are found All the questions raised by the demur- Referring now to the charges of fraud in lands belonging to the United States, rer to

the answer have recently been set up in the answer, by means of which whether within or without town-sites, passed upon by the Supreme Court of the the patent is alleged to have been obtained they may be claimed and worked, proviUnited States in the cases of the St. Louis in the present case, it is clear from the ded existing rights of others from prior Smelting and Refining Company vs. Kemp cases cited that the patent cannot be at- occupation not interfered with. and Nuttall, 14 Otto, 636 ; and Steele et. tacked on this ground in an action to eject Whether there are rights thus interfered al., vs. St. Louis Smelting and Refining the defendant from a portion of the pre-with which should preclude the location Company, 3 Colorado Law Reporter, 221. mises therein conveyed to the plaintiff

. of the miner, and the issue of the patent It will, therefore, only be necessary for us The patent is regular upon its face, and, to him or his successor in interest, is, to call attention to the rulings made by in the language of Mr. Justice Miller, in when not subjected under the law of that court, in respect to the questions Johnson vs. Towsley, 13 Wall., 83,“ no in- Congress to the local tribunals, a matter arising in this case, as they must be re- quiry can be permitted into the circum- properly cognizable by the Land Departgarded as final and conclusive.

stances under which it was obtained,” in ment, when application is made to it for a Mr. Justice Field, who wrote the opin- this proceeding. The rule applies with patent; and the inquiry thus presented ions of the court in both cases, states what equal force to the averment of the answer, must necessarily involve a consideration provisions the Government has made for that the ground patent was not mineral of the character of the land to which title


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