Stoneroad v. Stoneroad/Opinion of the Court
The first and fundamental question is, did the act of congress of 1860, which confirmed the claim of Preston Beck, Jr., as recommended by the surveyor general, provide for, or by necessary intendment contemplate that, a survey of the grant should be made in order to separate the land embraced within it from the public domain? And we are not relieved from the consideration of this question by the admission made by the parties to the suit that the confirmation was 'absolute, and without any condition whatever.' This admission is in no way the concession of a fact, but is a declaration by the suitors of their opinion on a matter of law. Whether the act of congress was absolute or conditional; whether it required, even though it absolutely confirmed the title, that a survey should be made to determine the extent of the property,-depends upon the terms of the law. The report of the surveyor general who passed upon the claim states, among the reasons for his recommendation to congress: 'The boundaries set forth in the granting decree and natural points, well known to all the community, and in the absence of any survey, which was not required in the grant, are amply sufficient to designate such portions of land as was intended to be severed from the public domain.'

In his recommendation to congress, however, which is practically the decretal part of his opinion, he says: 'The congress of the United States is respectfully recommended to cause a patent to be issued to the said Preston Beck, Jr., by the proper department, and cause the same to be surveyed.' It was this recommendation which was acted upon by congress.

We think the confirmatory act of 1860 by necessary implication contemplated that the confirmed grant should be thereafter surveyed, and that such survey was essential 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. To hold otherwise would be to conclude that congress had confirmed the claim, and yet deprived the claimant of all definite means of ascertaining the extent of his possessions under the confirmed title. In view of the fact that the surveyor general's report so wed the importance of the grant, and that it had never been surveyed, we think it must be considered that congress intended that it should be surveyed, in order that its boundary lines might be accurately fixed, before the issue of a patent. The grant was an unconfirmed Mexican grant, and therefore, before it could take a definite and conclusive shape, so far as the United States was concerned, it required action and approval on the part of this government. As said by this court, in speaking of grants within this territory of New Mexico, in the case of Astiazaran v. Mining Co., 148 U.S. 80, 13 Sup. Ct. 457: 'Undoubtedly, private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties, belonged to the political department of the government, and congress might either itself discharge that duty or delegate it to the judicial department. De la Croix v. Chamberlain, 12 Wheat. 599, 601, 602; Chouteau v. Eckhart, 2 How. 344, 374; Tameling v. Emigration Co., 93 U.S. 644, 661; Botiller v. Dominguez, 130 U.S. 238, 9 Sup. Ct. 525.'

Now, at the time of the passage of this confirmatory act, and for a long time prior thereto, the general laws of the United States confided to certain administrative officers the duty of surveying not only the public lands, but also private land claims. Rev. St. 441-453. The practice of the United States in dealing with the public domain and all governmental grants of land is to survey and issue patent. For this purpose, in the proper administrative branch of the government, accurate and efficient machinery, accompanied with full remedial process for the correction of error, is provided. In speaking of the general policy of the law as to the surveying of the public domain, including private land grants, this court, through Mr. Justice Lamar, in Knight v. Association, 142 U.S. 161, 12 Sup. Ct. 258, said:

'That section provides as follows: 'The secretary of the interior is charged with the supervision of public business relating to the following subjects: * * * Second. The public lands, including mines.' Section 453 provides: 'The commissioner of the general land office shall perform, under the direction of the secretary of the interior, all executive duties appeartaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all agents [grants] of land under the authority of the government.' Section 2478 provides: 'The commissioner of the general land office, under the direction of the secretary of the interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title ['The Public Lands'] not otherwise specially provided for.'

'The phrase, 'under the direction of the secretary of the interior,' as used in these sections of the statutes, is not meaningless, but was intended as an expression in general terms of the power of the secretary to supervise and control the extensive operations of the land department of which he is the head. It means that in the important matters relating to the sale and disposition of the public domain the surveying of private land claims, and the issuing of patents thereon, and the administration of the trusts devolving upon the government, by reason of the laws of congress or under treaty stipulations, respecting the public domain, the secretary of the interior is the supervising agent of the government to do justice of all claimants, and preserve the rights of the people of the Unitd  States. As was said by the secretary of the interior on the application for the recall and cancellation of the patent in this Pueblo Case (5 Land Dec. 494): 'The statutes, in placing the whole business of the department under the supervision of the secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised in the absence of statutory direction may be prescribed by such rules and regulations as the secretary may adopt." It is not to be presumed that congress intended, by confirming a grant which had never been surveyed, and had, therefore, never been distinctly separated from the public domain, to exempt it from the survey essential to its accurate segregation and delimitation, especially when this survey was fully provided for by the general law, in accordance with the uniform public policy of the government in dealing with questions of this character. 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 the particular instance. No such intention is anywhere expressed in the confirmatory act. Indeed, the idea that the act, while confirming the title, did not contemplate a survey, for the purpose of marking its limits, amounts to the contention that the public domain itself should remain in part forever unsurveyed and undetermined, since a separation of the private claim from the public domain was essential to the ascertainment of what remained of the latter. Construing, then, the confirmatory act, in connection with the general law of the United States, the recommendations of the surveyor general upon which the confirmation was made, and the essential requirements of the case as presented to congress, we conclude that a survey of the grant was contemplated by the confirmatory act, and we will determine the rights of the parties in accordance with this conclusion.

It is unquestioned that shortly after the confirmation of the grant a survey was made, and that the land in possession of the defendant below is outside of its lines. The plaintiff's case, therefore, necessarily rests upon a disregard of the official survey. In order to sustain his position, two legal propositions are advanced: First, that the holders of the grant are not bound by the survey, for the reason that it was made without notice to them, and because at the time of the survey some of them were minors and some were under coverture; and, second, that the survey did not conform to the boundaries of the grant, and therefore should be judicially corrected. Both these propositions are untenable. The first attacks the survey as a whole, upon the theory that notice was an essential prerequisite, and that coverture and minority were obstacles to the right of the government to survey the claim as confirmed, for the purpose of ascertaining the extent of the grant, and in order to separate it from the public domain. It is unnecessary to point out the fallacy which underlies this proposition, because, even if its correctness be conceded, the concession would be fatal to the plaintiff's case. As we have seen, a survey was necessary. Now, if the survey was illegal, and is to be treated as not existing, then we are without the guidance provided by law for the purpose of ascertaining whether the land claimed from the defendant was within or without the area of the grant. In other words, if it be conceded that there is no survey, the plaintiff is without right to relief, since a survey was essential to carry out the confirmatory act. The seo nd proposition is equally unsound. It presupposes the existence in the courts of the United States of a power to survey the public domain, and thus discharge a function confided by law to an administrative branch of the government. In West v. Cochran, 17 How. 403, this court, speaking through Mr. Justice Catron, said:

'It has often been held by this court that the judicial tribunals, in the ordinary administration of justice, had no jurisdiction or power to deal with these incipient claims, either as to fixing boundaries by survey, or for any other purpose; but that claimants were compelled to rely upon congress, on which power was conferred by the constitution to dispose of and make all needful rules and regulations respecting the territory and property of the United States. Among these needful regulations was that of providing that these unlocated claims should be surveyed by lawful authority; a consideration that has occupied a prominent place in the legislation of congress from an early day.'

Considering the same subject in Knight v. Association, supra, speaking through Mr. Justice Lamar, the court said:

'It is a well-settled rule of law that the power to make and correct surveys of the public lands belongs exclusively to the political department of the government, and that the action of that department, within the scope of its authority, is unassailable in the courts except by a direct proceeding. Cragin v. Powell, 128 U.S. 691, 699, 9 Sup. Ct. 203, and cases cited. Under this rule it must be held that the action of the land department in determining that the Von Leicht survey correctly delineated the boundaries of the pueblo grant, as established by the confirmatory decree, is binding in this court, if the department had jurisdiction and power to order that survey.'

These views are particularly applicable to the case in hand, since the act providing for the office of the surveyor general for New Mexico authorizes him to examine and report, under such rules and regulations as the secretary of the interior may adopt, and requires that his report shall be transmitted to congress for its action. Even if the general rule were otherwise, these provisions necessarily preclude judicial cognizance of the subject-matter, and confine it to the supervision of the political and administrative departments of the government. And the terms of the act become especially cogent when considered in connection with antecedent legislation under similar circumstances. They differ materially from the language of the measures previously adopted by congress for confirming the outstanding titles in Louisiana, Florida, and California. In those cases the statutes, while creating administrative officers for the purpose of ascertaining and passing on the grants, expressly gave a right to the parties to invoke the aid of the courts, in order that the correctness of the actions of the officers named might be judicially determined. It was under such provisions that many of the cases referred to and relied on by the defendant in error were decided. The absence of a provision in the present statute for a judicial review of the surveyor general's action indicates the intention of congress to reserve to itself the right to pass upon such claims. Astiazaran v. Mining Co., supra. Hence the many authorities cited by the defendant in error have no application. Thus U.S. v. Arredondo, 6 Pet. 691; Mitchel v. U.S., 9 Pet. 711; and Fremont v. U.S., 17 How. 542,-were the results of an express provision giving parties an ultimate recourse to the courts. Langdeau v. Hanes, 21 Wall. 521, involved no assertion of a power in the courts to destroy a survey duly made. There the survey had been made, and was not assailed. The finding of the court below in that case, which was here affirmed, was as follows: '(1) That the act of confirmation of 1807 was a present grant, becoming so far operative and complete to convey the legal title when the land was located and surveyed by the United States in 1820, as tha  an action of ejectment could be maintained on the same.' In Whitney v. Morrow, 112 U.S. 693, 5 Sup. Ct. 333, there had been an unquestioned segregation of the property after the confirmation by the commissioners under a special act of congress, by long-continued actual possession.

Nothing in the record indicates that the defendant in error has availed himself of the legal privilege of appeal to the secretary of the interior, and, of course, his right to do so is not concluded by any expression of opinion which we have made. Our conclusion is that the instruction requested by the defendant was wrongfully refused by the lower court, and the judgment of the supreme court of the territory of New Mexico, which upheld the action of the court below, was erroneous. It is therefore ordered that the judgment be reversed. 

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