Opinion of the Court.

sustain, upon payment of which the injunction would be vacated.

Assuming, as the Circuit Court did, and as we prefer to do in disposing of the case upon this record, that if the complainant had sustained damage, it had a cause of action, we, nevertheless, entirely agree that the bill was properly dismissed.

Evidence was adduced of the extent and character of the alleged damage, although the Circuit Court did not undertake to go into the question of amount, and the result was that the court concluded that the use of the track had not seriously obstructed, and would not in future seriously obstruct, access to complainant's premises, and that the lessening of the market or rental value of the property was in any event small; that a jury might find that no damage had been sustained or that it was inconsiderable; and that there was no proceeding which defendant could take to obtain an assessment of damages, if any, while the complainant had an adequate and simple remedy by an action at law.

The prayer was for an unconditional injunction, and although this was coupled with a prayer for general relief, a decree different from that specifically prayed could hardly have been awarded under the general prayer, as the averments of the bill were not introduced for that purpose; and besides, the complainant explicitly disclaimed upon the hearing any desire for the ascertainment of damages in this proceeding.

The statutes of Missouri provided for the assessment of compensation for the taking of property for public use, but not for such assessment where property was merely damaged, and complainant occupied the position of seeking by an absolute injunction to compel the defendant to pay such amount as accorded with its own judgment upon that matter. It may be that if this had been a case where compensation as such was demandable, the defendant, by filing a cross-bill, could have obtained an order such as was entered in MoElroy v. Kansas City, but it is useless to indulge in speculation in this regard. We are satisfied that complainant was not entitled to the relief prayed, and the decree of the Circuit Court is accordingly

Affirmed

Statement of the Case.

NEW ORLEANS v. PAINE.

APPEAL FROM THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

No. 1154. Submitted January 4, 1893. - Decided January 16, 1893.

While the location of the boundary lines of a land grant is pending before the Land Department, and the proper officers are bringing to bear upon it their own judgment and discretion, the courts have no right to interfere with their action by injunction.

The general rule is that the judicial power will not interpose, by mandamus or injunction, to limit or direct the action of departmental officers in respect of matters pending, within their jurisdiction and control.

THIS was a bill in equity filed in the Circuit Court for the Eastern District of Louisiana, by the city of New Orleans, suing as residuary legatee under the will of John McDonough, deceased, against the deputy surveyor general of the United States for the State of Louisiana, to enjoin him from surveying and locating a new back line or rear boundary of a French grant, and from dividing into sections lands alleged to belong to the plaintiff north of, and contiguous to, such new back line.

The grant in question was made April 3, 1769, by the proper authorities of the Province of Louisiana, then an appanage of the French crown, to Pierre Delille Dupard, and was described as "thirty arpents of front to the river, upon the whole depth which shall be found unto Lake Maurepas, of the land where heretofore were two villages of the Collapissas savages," etc. Upon the acquisition of the Territory of Louisiana by the United States, under the treaty of 1803, the greater part of this grant was confirmed to John McDonough, Jr. & Co., and was described by the board of land commissioners as having "thirty-two arpents front on the Mississippi River, with a depth as far as the Lake Maurepas, with side lines diverging as they extended into the interior," etc. McDonough having purchased the interest of his partner, devised his portion of the grant, upon certain charitable uses, to the cities of New Orleans and Baltimore, and upon partition made be

Statement of the Case.

tween the said devisees, the lands described in the bill fell to the plaintiff. In due course the government surveyed and fixed the front and side lines of the grant, but it seems that neither of these lines touched Lake Maurepas, nor was it included between them. When, in 1885, the State of Louisiana, claiming adversely to the city of New Orleans under the swamp land grant of March 2, 1849, 9 Stat. 352, c. 87, raised the question before the General Land Office as to what depth the claims were entitled, the surveyor general of Louisiana, to whom the matter had been referred, decided that the grant should extend to Lake Maurepas and the Amite River, by extending its lower side line back to said water boundary. On appeal to the Commissioner of the General Land Office, the decision of the surveyor general was affirmed; but on further appeal to the Secretary of the Interior, Mr. Lamar, he decided on January 6, 1888, that the depth of the grant should be determined by a straight line drawn through the centre of the grant from the front to the rear, terminating at the point of intersection of a line drawn at right angles thereto, so as to touch the lowest point of the southern shore of Lake Maurepas.

The matter was referred to the surveyor general of Louisiana, who directed the defendant Paine, as deputy surveyor, to examine carefully the southern shore line of Lake Maurepas, and, if entirely satisfied from reliable evidence, that there had been a change in said shore line since the grant was made in 1769, he was to run the line according to such location, and not according to its then location. These instructions were approved by the Commissioner of the General Land Office, under date of March 4, 1890. The defendant, the deputy surveyor, proceeded under these instructions, and satisfied himself that the southern shore line of Lake Maurepas had, for an indefinite time, been a moving line, slowly extending itself south and southwest; but as to where the shore line was in 1769, he could form no definite conclusion. "The only thing which seemed certain is that it was a long way from where it now is, and in fixing upon the distance . I have tried to adopt a location which would probably give the

Counsel for Appellant.

claims all the depth they are entitled to without extending them so far as some of the evidence would require." The bill averred that this survey was approved by the surveyor general, and was forwarded to the Commissioner of the General Land Office, "and thereupon, and in due official course, the said surveys of the said R. B. Paine were duly paid for by the United States, including his said survey and location of said back line of said Dupard grant.”

This survey seems, however, never to have been formally approved, and on May 14, 1891, Mr. Chandler, then acting Secretary of the Interior, wrote to the Commissioner of the General Land Office, saying that he found nothing in the decision of the department of January 6, 1888, to indicate that it was the intention of the Secretary to authorize an investigation as to whether the shore of the lake had been changed since 1769; but, on the contrary, it seemed to be clearly indicated that the southern shore of the lake, as it now exists, should be fixed absolutely as the starting point and determine the back line of the said grant. "You will instruct the surveyor general accordingly." In pursuance of this, the Commissioner of the General Land Office instructed the surveyor general to enter into a new contract with some competent deputy for the establishment of the back line from the southern shore of the lake as it now exists, and thereupon a new contract was entered into with the defendant Paine for a resurvey upon the basis of such instructions. Thereupon plaintiff filed this bill to enjoin such resurvey.

A restraining order was issued upon the filing of the bill, and a day fixed for the hearing of the motion for an injunction. A demurrer being filed to the bill, the case was brought to a hearing upon bill and demurrer, and a decree entered denying the injunction and dismissing the bill. 49 Fed. Rep. 12. From this decree an appeal was taken and allowed to the Circuit Court of Appeals, by which court the decree of the Circuit Court was affirmed and an appeal allowed to this court. 2 U. S. App. 330.

Mr. J. L. Bradford for appellant.

Opinion of the Court.

Mr. Assistant Attorney General Maury for appellee.

MR. JUSTICE BROWN delivered the opinion of the court.

This case turns upon the power of the court to enjoin the action of an officer of the Land Department in relocating the boundaries of a land grant; and an injunction is demanded upon the theory that a former survey of the same line had been examined, approved and paid for, and that the rights of the plaintiff to the lands included in such survey had thereby become vested.

In Noble v. Union River Logging Railroad, decided at the present term, (ante 165,) we had occasion to examine the question as to when a court was authorized to interfere by injunction with the action of the Head of a Department, and came to the conclusion that it was only where, in any view of the facts that could be taken, such action was beyond the scope of his authority. If he were engaged in the performance of a duty which involved the exercise of discretion or judgment, he was entitled to protection from any interference by the judicial power. In that case it appeared that the only remedy of the plaintiff was to enjoin the Secretary of the Interior from revoking his approval of a certain map, which operated as a grant of land. His contemplated action amounted in effect to the cancellation of a land patent.

So, in this case, if it were made to appear that the former survey had been completed and approved in such manner that all the lands included within the lines of the former survey had become vested in the plaintiff, it is possible that it might be entitled to an injunction against any act which would have the effect of disturbing or unsettling a title thereby acquired. But the difficulty here is that the facts do not exhibit such a case. It appears that the first survey was made under the direction of the surveyor general, who was himself acting under instructions from Mr. Lamar, then Secretary of the Interior, which instructions in his opinion authorized him to direct the defendant Paine to ascertain the shore line of Lake Maurepas as it existed in 1769, the date of the grant; and his