Lane v. Watts

41 App. D.C. 139, 1913 U.S. App. LEXIS 1986

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 1, 1913
• Docket: No. 2584
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

Appellants contend that the title to this land was not to pass from the United States to the heirs of Baca, unless and until the surveyor general should survey and examine the same, and report to the Department that such survey and examination disclosed that the land was vacant and not mineral, June 1Y, 1863. Appellees insist, on the other hand, and the court below adopted their view, that the title to this land passed out of the United States and vested in the heirs of Baca on April 9, 1864. If title did so pass, it is plain that what remained to bo done after the survey had been made, namely the filing of the plat and field notes, was a more1, ministerial act, tile doing of which the court might direct. Ballinger v. United, States, 216 U. S. 240, 54 L. ed. 464, 30 Sup. Ct. Rep. 338; Board of Liquidation v. McComb, 92 U. S. 531, 23 L. ed. 623. It is equally plain that the court would have power to restrain the .Department from attempting* to exercise jurisdiction and control over this land after it had vested in the heirs of Baca, to their injury. Noble v. Union River Logging R. Co. 147 U. S. 165, 37 L. ed. 123, 13 Sup. Ct. Rep. 271; Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 56 L. ed. 570, 576, 32 Sup. Ct. Rep. 340. Wo will proceed, therefore, to determine this the vital question in the case.

In Shaw v. Kellogg, 170 U. S. 312, 42 L. ed. 1050, 18 Sup. Ct. Rep. 632, there was involved Baca grant No. 4. In that, case the Department, not being fully satisfied that the land selected was nonrnineral, although the proper surveyor general and register and receiver had furnished certificates to that effect, approved the location, survey, and field notes, but directed the surveyor general to add to his certificate of approval the special reservation stipulated by the statute that the land thus selected should not embrace mineral lands, nor interfere, with any other vested rights, if such should exist. The Land Office noted on its maps that this tract had been segregated from the public domain, and had become private property, and so reported to Congress. The grantees entered into possession, fenced the tract, and paid all taxes assessed upon it by the State. It was held that the action taken by the Land Department was a finality, and that the title then passed, and hence that the limitation attempted to be inserted by the surveyor general, under the direction of the Department, -was beyond the power of executive officers to impose. While the facts of that case differ quite materially from the facts of this, the opinion of the court contains much that is helpful in the determination of the questions arising in this case. The court then directed attention to the fact that said act of June 21, 1860, “was a final disposition by Congress of certain claims under Mexican grants for lands situated in the Territory of New Mexico;” that some of those claims had been confirmed as reported and in tolo; and that the confirmation operated as a grant de novo, and amounted to a relinquishment by Congress of all rights of the United States to the premises. After referring to certain other claims, including that of the Baca heirs, the court said: “Obviously, the thought was that these claims should not only be finally but speedily disposed of. It was not contemplated that the title should remain unsettled, a mere float for an indefinite time in the future.” The court observed, further, that at the time of this legislation, there were but few persons living in New Mexico; that it contained large areas of arid lands; that its surface was broken by a few mountain chains and crossed by a few streams. “It was,” said the court, “within the limits of this Territory, whose conditions and natural resources were but slightly known, that Congress authorized this location.” The court further observed that while Congress did not intend to grant any lands then known to be mineral, it could not have been intended that a grant should be rendered nugatory by any future discoveries of minerals. The court pointed out that Congress evidently did not consider that there was any great probability of the discovery of mineral wealth in New Mexico, for by said act it confirmed claims amounting to millions of acres, with no reservation of mines then known, or to be thereafter discovered, within their limits; and that no appropriation was made for the exploration of claims to be thereafter located, although it required the completion of this location within three years.

The location in the present case was made in virtue of. the same act of Congress that was before the court in Shaw v. Kellogg. The tract of lánd located was square in form, so that, if the initial point was definitely determined, no difficulty whatever would be encountered thereafter in fixing the identity of the location. In the first letter of the commissioner to the surveyor general of New Mexico, he was told that, ■ should ■ the Baca claimants select outside of the existing surveys, they must give such distinct descriptions and connection with natural .objects as would enable the deputy surveyor, “when- he might reach the vicinity of such selections in the regular progress of the surreys," to have the selections adjusted, as near as might be, to the lines of the pttblic surveys; that the final certificate to the Land Office must be accompanied by the statement from the surveyor general, register, and receiver, as to the vacant and nonmineral character of the land. The application for the location of this part of the grant was thereupon made, and in that application, it will be noted, the claimants strictly complied with the requirements that they give such distinct description and connection with natural objects as would permit of the identification of the tract. Indeed, while this application was filed in 1863, and the actual survey was not made for more than forty years, no difficulty whatever seems to have been encountered in tracing the outboundaries of the land therein described. It was probably owing, in part, to the definite character of this description, that the surveyor general, in forwarding the application to the Land Office, added his certificate approving the location of this grant. Owing to conditions then obtaining, and to which the court referred in Shaw v. Kellogg, the surveyor general deemed it unnecessary to procure any certificate from the register and receiver. The Land Office, however, not being satisfied upon this point, immediately notified the surveyor general that before the approval by the Land Office of said application of location, prior instructions should be complied with, and the Office furnished witli a statement from tbe surveyor general, register, and receiver, as to the vacant and nonmineral character of this land. Subsequent to the date of this communication from the Land Office, the surveyor general wont to Washington and there filed in the Land Office, as we have seen, on April 2, 1864, his acknowledgment of the letter of the office requiring such certificates, saying that, inasmuch as he was unacquainted with the region of country comprising the location, he could not certify as requested, and that the facts could only be determined by actual examination and survey. The certificates of the register and receiver were then on their way to Washington, for they are dated March 25, 1864. Counsel for appellants insist that'these certificates'did not reach the Land Office until after the action of the Commissioner on April 9th approving this location and directing the survey of the land. 'Whether they did or not is immaterial, for it is apparent, from the notation on the surveyor general’s letter, “See letter of Mr. Watts inclosing R & R certificates,” that the Land Office came into possession of information of a sufficiently satisfactory character as to cause it to reconsider and recede from its previous decision requiring further proof as to the nonmineral character of this land. Giving to this notation the effect to which it is now entitled, and indulging in the inferences naturally deducible therefrom, we must assume that when the communication of April 9th was sent forth by the Commissioner, he knew of the? views entertained by the register and receiver concerning the character of this land, and that he considered those views and the other evidence before him sufficient, in the circumstances of the case, to justify him in approving the location. It must bo Borne in mind that the surveyor general had previously written that the location was so far beyond any public surveys that he did not even deem it um. ury to procure any certificate from the- register and- receiver, and that, as observed by the supreme court in Shaw v. Kellogg, it was not then thought by anyone that there was any great probability of the discovery of mineral wealth in the Territory. Indeed, it is not probable that this grant was then considered of any particular value. At all events, we find opposite the statement of the surveyor general that, he being personally unacquainted with the region of cmintry embracing this location, the facts as to its mineral character could only be determined by actual examination and survey, the notation admittedly made by the Land Office officials specifically directing attention to the letter óf Mr. Watts inclosing the certificates of the register and receiver, and expressing the hope that such certificates would result in the confirmation of the location; We must assume from the record before us that the Land Office was then in possession of information upon which it'was satisfied to act, notwithstanding the lack of knowledge on the part of the surveyor general. An analysis of the communication of the Commissioner to- the surveyor general of Arizona lends cogency to this view. Attention is there drawn to the. approval of the location by the surveyor general of New Mexico, “under whose jurisdiction the application properly came at the date of the approval.” The surveyor general of Arizona is then authorized, whenever the claimants shall pay or secure to be paid a sum sufficient to liquidate the expenses incident thereto, to have “the claim numbered 3 of the series surveyed as described in the- inclosed applicationHe was to transmit to the Land Office transcripts of the field notes and plats duly certified. There was not a word in this communication requiring or suggesting an examination of this land at the time of this survey, for the purpose of determining whether it was non mineral in character. The sole duty devolving upon the surveyor general in carrying out these instructions was lo malee ihe survey and, when made, to transmit to the Land Office his field notes and plats, that the same might “constitute the muniments of title, the law not requiring the issue of patents on these claims.” (Still further proof of the intent of the Land Office is found in the certificate which, for some reason, the Commissioner deemed necessary to accompany the specific directions included in the communication of even date, for therein it is recited that the. foregoing statement and certificate of the surveyor general of New Mexico had been submitted to the Department, "and, having undergone a careful examination, the location being approved by him to perfect title under the authority of the act approved June 21, 1860, application for survey having been made.” instructions bad been given to tbe surveyor general of Arizona “to run tbe lines indicated, and forward complete survey and plat to be placed on file for future reference as required by law.” We think tbe conclusion irresistible, from the language of this certificate, that the Commissioner, having carefully considered all the facts in the case, concluded to adopt the approval of the surveyor general of New Mexico of this location to perfect title under the authority of said act, and, in order completely to segregate this land from the public domain, ordered the survey.

A survey was necessary. “The general rule being to exact a survey, the grant here under consideration could only be exempted from this requirement by an express statement in the act of Congress indicating an intention to depart from the rule in 1he particular instance.” Stoneroad v. Stoneroad, 158 U. S. 240, 250, 39 L. ed. 966, 969, 15 Sup. Ct. Rep. 822. The statute of June 21, 1860,-under which this location was made, clearly contemplates that a survey shall be made. Rut when the Land Office, upon whom devolved the duty of passing'upon the location of this land, had acted, we think the title became absolutely confirmed in the heirs of Baca, and that the survey which the Land Office directed to be made was essential only “for the purpose of definitely segregating the land to which the right was confirmed, from the public domain, and thus finally fixing the extent of the rights of the owners of the grant.” Stoneroad v. Stoneroad, 158 U. S. 240, 39 L. ed. 966, 15 Sup. Ct. Rep. 822. And when the title to this land passed out of the United States and vested in these heirs, the finding as to the character of the land could not thereafter be disturbed by the Land Office. “One officer of the Land Office is not competent to cancel or annul the act of his predecessor. That is a judicial act and requires the judgment of a court.” United States v. Stone, 2 Wall. 525, 17 L. ed. 765. The claim of jurisdiction to readjudicate the character of the land, which we have found passed out of the United States, amounted to an attempt to deprive the heirs of Baca of their property without due process of law. Noble v. Union River Logging R. Co. 147 U. S. 165, 37 L. ed. 123, 13 Sup. Ct. Rep. 271; Moore v. Robbins, 96 U. S. 530, 24 L. ed. 848.

Counsel for appellants have raised the qxiestion whether the proper surveyor general originally approved the location of this grant. The basis for this contention is the act of . Congress of February 24, 1863 (12 Stat. at L. 664, chap. 56), to provide-a temporary government for the Territory, of Arizona. That, government, however, was not established until January, .1864, A surveyor general for Arizona was provided .for by this act,, but he -was to receive no salary 'until his active duties commenced. It is conceded that he did not open an office.in Arizona until January, 1864. The act of June 21, 1-860, under which this grant was located, expressly provided that the surveyor general of New Mexico should make the survey and location, of course, under the direction and supervision of the Land Office. At the time he assumed jurisdiction to act, the surveyor general of Arizona had not assumed the duties of his office, and, as ruled by the Commissioner of the Land Office in his communication of April 9, 1864, to the surveyor general of Arizona, he unquestionably had jurisdiction of the application at the date of its approval by him. But this is of small moment here, for, after all, it made little difference which surveyor general acted. The material question is whether the Land Office, upon whom devolved the ultimate responsibility, approved the location. That approval was given, and the rights of these heirs then became fixed. It is very clear, we think, that the act under which the location was made contemplated present action by the Land Office, and not action fifty years deferred.

LVe do not think the efforts to change the location in question affect the situation here. The Department itself has repeatedly ruled that all those efforts were abortive, and, hence, that the claimants must be remitted to this location. In their answer, appellants aver that there were conflicting Mexican grants to some of the land included in this Iffioat, and that it therefore was not subject to location in 1866. It is conceded that no rights under those grants had been asserted agreeably to the provisions of said act of July 22, 1854 (10 Stat. at L. 308, chap. 103). Under that act the Secretary of the Interior promulgated regulations requiring all claimants to appear and present evidence of their title. The matter, therefore, did not become sub judies until the filing of the claim. In other words, when this location was made by the Baca heirs, the alleged Mexican grants, to which attention is now drawn, tvere mere undisclosed claims. Clearly the existence of such undisclosed claims did not deprive the Land Office of jurisdiction over the land embraced in this location. But this is a question with which we need not be concerned. If, as suggested by the court below, adverse claims are made to any portion of this tract of land, the questions arising out of such claims will properly be adjudicated in the courts where the lands are located. The question with which we are concerned is whether, upon this record, title passed out of the United States and vested in the .Baca heirs in 1863.

The act of June 21, 1860, imposed upon the surveyor general of New Mexico the duty to make survey of this land when required by the heirs’of Baca, and the act of June 2, 1862 (12 Stat. at L. 4Í0, chap. 90), merely required that claims or grants derived from a foreign state or government should, be surveyed at the expense of the claimants. This grant was not derived from a foreign state or government, but was made to compensate the heirs of Baca for the relinquishment of their foreign grant. We think, therefore, that the Land Office was in error when it required the deposit of the estimated cost of survey as a prerequisite to its being made at all.

Appellees base their claim of title upon a deed dated May 1, 1864, to John S. Watts, which was recorded within one year from its date. This deed purports to have been executed by the heirs of Baca. Inasmuch as it is more than thirty years old and bears no suspicious indicia, it proves itself. Ford v. Ford, 27 App. D. C. 401, 6 L.R.A.(N.S.) 442, 7 Ann. Cas. 245; Applegate v. Lexington, 117 U. S. 255, 29 L. ed. 892, 6 Sup. Ct. Rep. 742; Foote v. Brown, 81 Conn. 218, 70 Atl. 699; Hodge v. Palms, 54 C. C. A. 570, 117 Fed. 396. In the absence of any evidence attacking appellees’ chain of title, it is enough-if they have established a prima facie title. Clearly they have done this. Decree affirmed, with costs. Affirmed.

An appeal to the Supreme Court of the United States was allowed January 5, 1914.