Gardner v. Bonestell/Opinion of the Court
The plaintiffs in error base their right to the land in controversy upon this provision of the act of July 23, 1866 (14 Stat. at L. 218, 220, chap. 219, § 7):

'That where persons in good faith and for a valuable consideration have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant; and have used, improved, and continued in the actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same.'

Every branch of the Land Department, from the register and receiver of the local land office up to the Secretary of the Interior, decided against the contention of Throckmorton (under whom the plaintiffs in error claim), holding that the land was not within the exterior boundaries of the grant, and that Throckmorton was not a purchaser in good faith from the grantee or his assigns. The trial court, referring to the decision of the Land Department, found that it was not based upon any matter of law, but upon questions of fact in respect to which there was conflicting testimony. Further, that court upon the testimony adduced before it found in accord with the conclusions of the Land Department, and the supreme court of the state has sustained such finding.

Certain propositions may be stated which compel an affirmance of the judgment of the supreme court of the state. And first, '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.' Knight v. United Land Asso. 142 U.S. 161, 176, 35 L. ed. 974, 979, 12 Sup. Ct. Rep. 258, 262.

The grant was one not of quantity, but by metes and bounds, and the final survey, approved by the Land Department, determined conclusively the exterior boundaries of that grant. The land in controversy was not within those boundaries. Counsel for plaintiff in error assumes that the correctness of this survey may be litigated in an action between private parties. He insists that the last survey, which he says was a mere compilation, and not an actual resurvey, included a large body of lands on the one side which were not, in fact, within the boundaries of the tract of which juridical possession had been given, and excluded on the other side a large body which were within such boundaries and which included the lands in controversy. If his contentions were sustained to the full extent the result would be to enlarge the boundaries of the grnat on the one side without reducing them on the other, and so increase the area of the grant several hundred acres above its admittedly true size. In other words, the United States, which obtained by the treaty of cession full title to all lands not subject to private grant, would be deprived of these extra acres, undoubtedly their property. He has mistaken his remedy. It was by application to the Land Department to correct the survey, and failing to secure correction there, a direct proceeding in the courts in which the Reed heirs should have been parties, and in which they could have been heard to defend the survey and patent.

Again, the determination of the Land Department in a case within its jurisdiction of questions of fact depending upon conflicting testimony is conclusive, and cannot be challenged by subsequent proceedings in the courts. Burfenning v. Chicago, St. P. M. & O. R. Co. 163 U.S. 321, 323, 41 L. ed. 175, 176, 16 Sup. Ct. Rep. 1018, and cases cited in the opinion; Johnson v. Drew, 171 U.S. 93-99, 43 L. ed. 88-91, 18 Sup. Ct. Rep. 800.

The Land Department found and adjudged not only that the land in controversy was outside the exterior boundaries of the grant, but also that Throckmorton was not a purchaser in good faith. Both of these findings were matters of fact and based upon the testimony. No proposition of law controlled such findings, and no error of law is apparent. Both questions of fact were determined by the Land Department adversely to the plaintiffs in error, and that determination concludes the courts. Counsel insists that there was no conflicting testimony. He ignores the survey which is in itself evidence, and that of a most persuasive kind. There are many things which a surveyor sees and finds in making a survey which are not and cannot be reproduced on paper, and which yet guide him, and wisely guide him, in the lines he runs. So that, even in a case in which a survey is a proper subject of attack, it can be overthrown only upon satisfactory evidence of mistake. It cannot be ignored, and the only matter considered be the tendency and significance of the oral testimony of witnesses as to lines, metes, and bounds.

The trial court, in addition to its findings in reference to the proceedings in the Land Department, found as independent matters of fact, that the land in controversy was outside the exterior boundaries of the grant, and that Throckmorton was not a bona fide purchaser. The supreme court of the state sustained those findings. Now, in proceedings in this court to review the action of state courts we do not enter into a consideration of questions of fact. We accept the determination of those courts in such matters as conclusive, and inquire simply whether there have been errors of law. Dower v. Richards, 151 U.S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452; Egan v. Hart, 165 U.S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Hedrick v. Atchison, T. & S. F. R. Co. 167 U.S. 673, 677, 42 L. ed. 320, 322, 17 Sup. Ct. Rep. 922.

For these reasons the judgment of the Supreme Court of California is affirmed. 

Notes