DECISIONS

RELATING TO

THE PUBLIC LANDS.

PRIVATE LAND CLAIMS-TREATY RESERVATION.

JOSEPH FARR.

By the terms of the treaties between the United States and the Republic of Mexico, all lands embraced within the boundaries of Mexican or Spanish grants, at the date said treaties were ratified, were placed in a state of reservation for the ascertainment of rights claimed under said grants, and by the act of March 3, 1891, said reservation is continued in force, and will so remain until final action is taken on the respective claims or grants affected thereby.

uary 8, 1897.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) (W. M. W.) The case of Joseph Farr has been considered on his appeal from your office decision of August 21, 1895, rejecting his application to enter under the homestead law the E. of the NW. 1, and lots 1 and 2 of Sec. 30, T. 9 N., R. 3 E., Santa Fe, New Mexico, land district. On September 12, 1894, Farr made an application to enter the land in question under the homestead law.

On September 14, 1894, the register and receiver rejected said application, for the reason—

that the land applied for was withdrawn from entry on June 2, 1886, by the Hon. Commissioner, it being within the limits of the Diego Padilla, or El Tago grant. Farr appealed. In his appeal he alleged

that the said tract of land is not now within the limits of the said Diego Padilla, or El Tago grant, because the said grant claim was rejected by the United States court of private land claims, on the 8th of September, 1894, prior to the filing of said homestead application.

It appears from a certified statement of the deputy clerk of the court of private land claims that on the 8th day of September, 1894, said private land claim was rejected by that court, and that an appeal from the judgment of said court was taken to the supreme court of the United States, where the case was pending when your office decision was rendered affirming the judgment of the local officers.

Farr appeals.

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The appellant alleges that the land applied for is not now within the limits of the Diego Padilla or El Tago grant, for the reason that said grant was rejected by the court of private land claims on September 8, 1894.

Your office found that:

The land within the claimed limits of the El Tago grant is in a state of statutory reservation, to satisfy the claim, under the provisions of section 8 of the act of July 22, 1854. (10 Stat., 308.)

Said section 8 provided 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 provisions of this act.

This was clearly a statutory reservation, covering all lands situated in the territory acquired from Mexico, claimed under Mexicau or Spanish grants; it was to remain in force until the final action of Congress on such claims."

By act of March 3, 1891 (26 Stat., 854), Congress established the court of private land claims, with jurisdiction to hear and determine all cases or claims presented by any person or persons or corporation or their legal representatives,

claiming lands within the limits of the Territory derived by the United States from the Republic of Mexico and now embraced within the Territories of New Mexico, Arizona, or Utah, or within the States of Nevada, Colorado, or Wyoming, by virtue of any such Spanish or Mexican grant, concession, warrant, or survey, as the United States are bound to recognize and confirm, by virtue of treaties of cession of said country by Mexico to the United States, which at the date of the passage of this act have not been confirmed by act of Congress, or otherwise finally decided upon by lawful authority, and which are not already complete and perfect.

The purpose of Congress in passing this act evidently was to provide a special tribunal to pass upon, settle, determine and adjudicate every claim that existed, or could properly be made, under any and all grants made by Spain or Mexico to lands within the territory specified in said act, prior to its acquisition by the United States from Mexico. By the 7th section of the act it is provided, inter alia, that:

The said court shall have full power and authority to hear and determine all questions arising in cases before it relative to the title to the land the subject of such case, the extent, location, and boundaries thereof, and other matters connected therewith fit and proper to be heard and determined, and by a final decree to settle and determine the question of the validity of the title and the boundaries of the grant or claim presented for adjudication, according to the law of nations, the stipulations of the treaty concluded between the United States and the Republic of Mexico at the city of Guadalupe-Hidalgo, on the second day of February, in the year of our Lord, eighteen hundred and forty-eight, or the treaty concluded between the same powers at the city of Mexico, on the thirtieth day of December, in the year of our Lord, eighteen hundred and fifty-three, and the laws and ordinances of the government from which it is alleged to have been derived, and all other questions properly arising between the claimants or other parties in the case and the United States.

Section 9 of the act provides that the party against whom the court shall decide in any case:

Shall have the right of appeal to the supreme court of the United States, such appeal to be taken within six months from date of such decision, and in all respects to be taken in the same manner and upon the same conditions, except in respect of the amount in controversy as is now provided by law for the taking of appeals from decisions of the circuit courts of the United States. On any such appeal the supreme court shall re-try the cause, as well the issues of fact as of law, and may cause testimony, to be taken in addition to that given in the court below, and may amend the record of the proceedings below as truth and justice may require; and on such re-trial and hearing, every question shall be open, and the decision of the supreme court thereon shall be final and conclusive. Should no appeal be taken as aforesaid, the decree of the court below shall be final and conclusive.

The act contains nineteen sections, in which full and specific provisions are made for determining all the rights of all claimants under Mexican or Spanish grants, in the States and Territories named. The 15th section expressly repeals section 8 of the act of July 22, 1854, referred to in your office decision as reserving the land involved. The repeal of said section is without any qualification and goes to the entire section, "and all acts amendatory or in extension thereof, or supplementary thereto." It follows that your office erred in holding that the land in question is in a state of statutory reservation under the act of 1854, supra.

However, it does not necessarily follow that your office decision must be reversed; for, if the conclusion reached was the correct one under the law and record presented, then it should be affirmed.

The question to be determined is, whether the land in question was properly subject to entry under the homestead law at the time Farr made his application.

As long as the 8th section of the act of 1854, supra, was in force, there can be no question but what this land was reserved. It should be borne in mind that in enacting said section Congress undertook to provide a manner whereby it was intended to ascertain the origin, nature, character and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico. The surveyor-general for 'New Mexico, under instructions of the Secretary of the Interior, was required to make a full report of all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe-Hidalgo.

By the terms of said treaty the United States bound itself to protect all claimants having such claims in their rights, and it may be that the express reservation made by section 8 of said act was placed therein more in the nature of a precaution than as a necessity. Whatever may

have been the purpose of Congress in making said reservation, it is clear that all lands embraced within the claimed limits of grants made by Mexico or Spain prior to said treaty were in a state of reservation under the terms of the treaty itself, independent of any reservation that might be made after such treaty was duly ratified. It follows that

the repeal of the section of the statute containing the reservation would not have the effect of releasing lands reserved under treaty obligations from such reservation.

As has been shown, the act of March 3, 1891, provided for a special tribunal to determine the rights of claimants to lands included within grants claimed to have been obtained from Mexico or Spain prior to the treaty of Guadalupe-Hidalgo. Congress invested said tribunal with full authority to determine every question, subject to the right of appeal to the supreme court of the United States, respecting the validity, extent and scope of all unadjusted claims to lands included in Spanish or Mexican grants. The title, validity and boundaries of such grants or claims were to be adjudicated "according to the law of nations, the stipulations of the treaty concluded between the United States and the Republic of Mexico at the city of Guadalupe-Hidalgo," on February 2, 1848, and the treaty between the same powers on December 30, 1853.

It is, therefore, held that under the above named treaties all lands embraced within the boundaries of Mexican or Spanish grants or claims at the date said treaties were duly ratified were by said treaties placed in a state of reservation; that said reservation has been continued in force by the act of March 3, 1891, supra; that such reservation will continue in force until after the judgment of said court becomes final and in all respects complete.

Farr's application to enter the land in question, having been made at a time when said land was in a state of reservation and not subject to entry, was rightfully rejected.

The conclusion of your office in the decision appealed from was correct. The judgment appealed from is accordingly affirmed.

RAILROAD GRANT-LAND EXCEPTED-DONATION CLAIM.

OREGON AND CALIFORNIA R. R. Co. v. CROCKER.

A donation claim of a married man embracing more than three hundred and twenty acres is not void, but voidable only, and land included therein, at the time when a railroad grant becomes effective, is excepted from the operation of the grant.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 8, 1897.

(W. A. E.)

The SE. of the SW. 4, and the fractional SE. 4 of the SE. † (or lot 1) of Sec. 7, T. 1 S., R. 2 W., Oregon City, Oregon, land district, are within the primary limits of the grant made by act of July 25, 1866 (14 Stat., 239), to aid in the construction of the Oregon and California Railroad, and lie opposite the portion of said road that was definitely located January 29, 1870.

March 30, 1880, said tracts were listed by the railroad company, per list 13.