of Louisiana from France. In the latter case, particularly, a very much larger number of claims by private individuals existed to the soil acquired by the treaty, some of whom resided on the lands which they claimed, while others did not, and the titles asserted were as diverse in their nature as those arising under the cession from Mexico.1

118. Adjustment of claims to Mexican grants in other states and territories.- As to claimed Mexican grants situated within the territory of New Mexico, congress, on July 22, 1854, passed an act" providing, among other things, that the surveyor-general for that territory should examine into and report to the interior department upon the status of private land claims within his jurisdiction. The provisions of this act were extended to Colorado by the act of February 28, 1861,3 and to Arizona by the act of February 24, 1863.*

Some of the grants so reported upon under these acts were presented to congress, and were confirmed. But by far the greater proportion awaited the passage of some general law providing a uniform method of adjustment. Such a law was passed March 3, 1891.5

This act created a court of private land claims, consisting of a chief justice and four associate justices, to which tribunal all persons 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 and Arizona, and the states of Nevada, Colorado, Wyoming, and Utah, are called upon to submit their claims. This court has had submitted to it a large number of claimed grants. It has confirmed some, and rejected

'Botiller v. Dominguez, 130 U.S. 238.

'10 Stats. at Large, 308.

312 Stats. at Large, 172.

'Id. 664.

526 Stats. at Large, 854.

"The California act required all classes of claimed grants to be presented, whether perfect or inchoate. The act of 1891 leaves it optional with the owner of a perfect grant to present it or not, as he sees fit.

J

others. Many are still being litigated. This act may be said to be drawn on lines parallel to the one passed for California, but, in one respect at least, it makes a radical innovation. The California act made no mention of or reference to mineral lands distinctively. The law under which the court of private land claims has been and is now acting contains the following provision:

"No allowance or confirmation of any claim shall con"fer any right or title to any gold, or silver, or quicksilver "mines, or minerals of the same, unless the grant claimed "effected the donation or sale of such mines or minerals to "the grantee, or unless the grantee has become otherwise "entitled thereto in law or equity; but all such mines "and minerals shall remain the property of the United States, with the right of working the same, which fact "shall be stated in all patents issued under this act. But "no such mine shall be worked on any property confirmed "by this act without the consent of the owner of such "property, until specially authorized thereto by an act of congress hereafter passed."

This is a radical departure from the previous policy of the government. All reservations heretofore made. or authorized by congress, with the exception of "known "mines," in the pre-emption act of 1841, and "veins," or "lodes," in the townsite act of 1865, have been of the lands containing mineral, not the mineral within the lands. The effect of these new provisions and the construction of the patents to be issued under them will be duly considered at the proper time.

119. Claims to mines asserted under the Mexican mining ordinances.-It may be conceded on the threshold that where a valid claim to a mine or a mining right existed prior to the cession within the territory ceded, such right must be respected, and may be determined in the same manner as claims to other land are determined. We are not aware of any such claim ever having been thus far successfully established.

1 Castillero v. United States, 2 Black, 17.

But few were ever asserted in California; and, of course, the time for such assertion has long since elapsed. From what we know of the history of mining in the remaining portion of the ceded territory, it is not likely that many such claims will be presented to the present court of private land claims. If such should be the case, and they are confirmed, the title to the minerals will, of course, pass. If they should not be confirmed, the tract claimed will be restored to the public domain, and, if mineral in character, will become public mineral lands, and subject to the mining laws. Therefore, we have no further concern with this hypothetical class of claims. We are to deal only. with rights asserted to lands claimed either under the colonization laws of Mexico or for agricultural, pastoral, and kindred purposes.

120. Status of grants considered with reference to condition of title. So far as the inquiry is pertinent to the questions considered in this treatise, Mexican grants may be considered in four different aspects:

(1) Grants sub judice-that is to say, awaiting final confirmation and determination of boundaries;

(2) Grants confirmed finally by action of the judicial tribunals under the California act, and the boundaries fixed; (3) Grants confirmed by direct action of congress;

(4) Grants which have been, or may be, finally confirmed under the act of March 3, 1891, situated in Colorado, Wyoming, Utah, Nevada, New Mexico, or Arizona. Let us consider these in the order named.

121. Grants sub judice.-With respect to all classes. of Mexican grants, it may be said that they are sub judice until the title has been established and the boundaries. finally defined by the tribunals charged with these functions, or the right is finally declared invalid and without foundation, or until the period fixed by the various acts

requiring presentation to the respective tribunals is passed, and no such presentation has been made.'

2122. Different classes of grants. Mexican grants were of three kinds:

(1) Grants by specific boundaries where the donee is entitled to the entire tract;

(2) Grants of quantity, as of one or more leagues within a larger tract, described by what are called outside boundaries, where the donee is entitled to the quantity specified, and no more;

(3) Grants of a place or rancho by name, where the donee is entitled to the whole tract, according to the boundaries given, or, if not given, according to the extent as shown by previous possession."

2123. Grants of first and third classes. With respect to lands containing mines or mineral deposits within the claimed exterior boundaries of any grant, falling within the first and third classes, it may be stated that no right to any such lands can be acquired under the general mining laws so long as the grant remains sub judice. Such lands are not "public lands" within the meaning of that term as used in the acts of congress respecting the diposition of the public domain.3

And it is immaterial whether the claim is lawfully made or not. As was said by the supreme court of the United States,

Under the California act all classes of grants, whether perfect or imperfect, were required to be presented. Under the act of March 3, 1891, the owners of perfect grants may present their claims or not, as they see fit. As to when such class of grants cease to be sub judice is a question. Even after the present court of private land claims goes out of existence, the status of these grants claimed as perfect and their extent may be the subject of controversy; and it may be said that they will perpetually remain sub judice, so far as the government is concerned. We do not think, considering the general scope of this treatise, that we are called upon to elaborate this question.

* United States v. McLaughlin, 127 U. S. 428; Higueras v. United States, 5 Wall. 827; Hornsby v. United States, 10 Wall. 224.

3 Cameron v. United States, 148 U. S. 301; Doolan v. Carr, 125 U. S. 618.

"Claims, whether grounded upon an inchoate or 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 prohibit"ing intrusion upon the claimed lands until an 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 sepa"rating them from those which were valid without investi"gation 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 Spanish or Mexican claim, until it was barred by lapse of time or rejected."1

The theory by which grants of the two classes under consideration were while sub judice withheld from appropriation under the general land laws of congress is thus stated by the same tribunal:

"The right to make the segregation rested exclusively "with the government, and could only be exercised by its "officers. Until they acted and effected the segregation, "the confirmees were interested in preserving the entire "tract from waste and injury and in improving it; for until "then they could not know what part might be assigned to "them. Until then no third person could interfere with "their right to the possession of the whole. No third person "could be permitted to determine in advance of such segre"gation that any particular locality would fall within the "surplus, and thereby justify his intrusion upon it and its 'detention from them. . . . If the law were otherwise "than as stated, the confirmees would find their possessions "limited, first in one direction, and then in another, each "intruder asserting that the parcel occupied by him fell "within the surplus, until in the end they would be ex"cluded from the entire tract."2

This was the doctrine early announced by the supreme court of the state of California, and maintained through a long line of decisions."

Newhall v. Sanger, 92 U. S. 761, 764.

"Van Reynegan v. Bolton, 95 U. S. 33–36, (citing Cornwall v. Culver, 16 Cal. 429; Mahoney v. Van Winkle, 21 Cal. 552; Riley v. Heisch, 18 Cal. 198). Ferris v. Coover, 10 Cal. 589; Mahoney v. Van Winkle, 21 Cal. 552; Thornton v. Mahoney, 24 Cal. 569; Rich v. Maples, 33 Cal. 102; Mott v. Reyes, 45 Cal. 379; Shanklin v. McNamara, 87 Cal. 371.