Opinion of the Court. 234 U. S. The value of the lands located is alleged to be over $100,000 and that plaintiffs have no adequate remedy at law. An injunction was prayed restraining defendants from further proceeding in the homestead applications, that they be required to place on file for future reference, as required by law, the Contzen survey and plat dated June 17, 1905; that anything shown thereby or connected therewith, other than that included in the order of the Commissioner of April 9, 1864, and other than the exterior boundaries, accessory lines, crosses and distances, monuments and measurements showing the tract located by the Baca heirs known as Location No. 3, together with any topographical features and the references to the lines of the public surveys, be canceled and expunged from the said plat of said survey, and particularly the lines, crosses and distances, monuments and measurements purporting to show the segregation from said land of the alleged mineral portion, the Tubac Township, and the conflicting portions of the San Jose, Sonoita, Tumacacori and Calabasas claims. A demurrer was filed to the bill which set out as grounds: (1) The real purpose of the suit is to recover certain real estate situated in the Territory of Arizona by trial of the legal title thereto and that the relief, if any, plaintiffs are entitled to is at law. (2) If the legal title to the property passed to plaintiffs, as alleged, on April 9, 1864, "naught else remains for the defendants to do other than to perform the ministerial duty of receiving and recording the plat of survey and field notes thereof," and the remedy is by mandamus. (3) If the legal title to the land has not passed to plaintiffs as alleged, it is still in the United States, which it is not shown has consented to this suit; and the court in such event is without jurisdiction. (4) On the face of the bill it is impossible to grant the prayers of plaintiffs without deciding whether the title is still in 234 U.S. Opinion of the Court. the United States. The determination of the suit therefore affects the United States and they are real and indispensable parties in interest and have not consented to be sued. (5) The acts sought to be enjoined are exclusively within the jurisdiction of the Interior Department and are not subject to judicial control. (6) The parties who have initiated claims are materially interested in the suit and are necessary parties to it. (7) The court is without jurisdiction to expunge the matters and things prayed to be expunged from the plat of the survey of the San Jose de Sonoita claim for the reason that the claimants are not parties to the suit and their claim has been confirmed by the Supreme Court of the United States (Ely's Administrator v. United States, 171 U. S. 220). (8) The citizens of Tubac Township are necessary parties. (9) There never has been an adjudication by the Secretary of the Interior and the Commissioner of the General Land Office, or either of them, that the lands involved were on June 17, 1863, non-mineral and vacant or unoccupied lands such as the heirs of Baca were authorized to select under the terms of the sixth section of the act of June 21, 1860 (12 Stat. 71, c. 167). (10) The plaintiffs are not entitled to the relief prayed for, or to any relief. (11) The bill is in other respects uncertain, informal and insufficient to entitle plaintiffs to any relief. The demurrer was overruled, Mr. Justice Barnard of the Supreme Court saying that the main question to be decided on the demurrer was as to the effect of the act of Congress, and, considering the act and the proceedings taken under it recited in the bill, he said he was of opinion that the title to the "tract vested in the heirs of said Baca when the location was approved, and the survey ordered" and that, therefore, plaintiffs might maintain their bill for some portion, at least of the substantial relief for which they prayed, and that the demurrer, being to the whole bill, must be overruled. And he said: "This con clusion as to title, if correct, will enable the suit to be maintained, notwithstanding the objection made as to want of other parties defendant. Title being out of the United States, it has no interest and is not a necessary party; and the Land Department cannot rightfully treat the tract as open to public entry, and the officers may therefore be enjoined." The defendants (appellants) then answered. The answer admitted what must be regarded as the fundamental elements of the bill. So far as its denials of any of the averments of the bill or its allegations of fact are material we shall refer to them hereafter. The proofs taken under the bill and answer were not regarded by the Supreme Court as determining a different decision from that expressed on the demurrer to the bill, that is, the court repeated its view that the title passed on April 9, 1864, to the heirs of Baca and that the court had authority to enjoin defendants from treating the land as being public land. The injunction prayed for was granted except that the "Contzen" survey and plat were ordered to be filed unchanged. A decree was entered accordingly. It was affirmed by the Court of Appeals, as we have said. The crux of the case in the views of the courts below is the question whether title to the lands passed out of the United States in April, 1864, and the careful and elaborate consideration of it makes the discussion of it mere repetition. The contentions of the parties are very accurately opposed. Appellants contend that "under a proper construction of the act of June 21, 1860, title to the 'float' cannot pass until there has been an official survey and a final determination by the proper officers that the land selected in 1863 was of the character which the statute permitted the heirs to take a matter still sub judice in the Department" except as to certain conflicting grants. The appellees insist, and the courts below, as we have 234 U. S. Opinion of the Court. seen, decided, that the location of the grant and the approval of it by the surveyor general of New Mexico and subsequently in April, 1864, by Commissioner Edmunds of the Land Office transferred the title to the heirs of Baca. There is some controversy upon the fact as to whether the Commissioner had before him the proof he had demanded of the non-mineral character of the land. We think the lower courts rightly deduced from the evidence "that the Commissioner," to quote from the opinion of the Court of Appeals, "having carefully considered all the facts in the case, concluded to adopt the approval of the surveyor general of New Mexico of this location to perfect title under the authority of said act [act of 1860], and, in order completely to segregate this land from the public domain, ordered the survey" (41 App. D. C. p. 153). And that this action was within the authority of those officers we may refer to Shaw v. Kellogg, supra. In that case, we have seen, the surveyor general of New Mexico was the officer selected and who was most competent to examine and pass upon the question of the character of the lands, and to pass upon them at the time of location-not upon evidence collected many years after the location, directed to what might have been known many years before. The selection and location was to be made within three years of the passage of the act in a comparative wilderness and the "title was then to pass," and "pass absolutely, and not contingently upon subsequent discoveries." We recognized in Shaw v. Kellogg that the action of the surveyor general was subject to the supervision of the Land Department and that condition is satisfied in the case at bar. The Commissioner was put in possession of all of the facts as to the lands, and, exercising his judgment upon them, approved the location. The facts in Shaw v. Kellogg give pertinence to its prin ciples, notwithstanding some differences between its facts and those in the case at bar. In that case there was a positive declaration by the surveyor general of the nonmineral character of the lands; in the case at bar it is an inference deduced from the circumstances, it being the "duty of the officers to decide the question"-a duty which they "could not avoid or evade." In that case the Land Office undertook to reserve from the grant, lands which might be subsequently discovered to be mineral. In this case it directed an inquiry of their character long after the location of the grant and seeks to determine the legality of the location by the information said to be obtained. The title having passed by the location of the grant and the approval of it, the title could not be subsequently divested by the officers of the Land Department. Ballinger v. United States ex rel. Frost, 216 U. S. 240. In other words, and specifically, the action of the Commissioner in approving the location of the grant cannot be revoked by his successor in office, and an attempt to do so can be enjoined. Noble v. Union River Logging R. Co., 147 U. S. 165; Philadelphia Company v. Stimson, 223 U. S. 605. The suit is one to restrain the appellants from an illegal act under color of their office which will cast a cloud upon the title of appellees. This disposes of the contentions of appellants that this is a suit against the United States, or one for recovery of land merely, or that there is a defect of parties, or that the suit is an attempted direct appeal from the decision of the Interior Department or a trial of a title to land not situated within the jurisdiction of the court "wherein an essential party is not present in the forum and is not even suable-the United States." We agree with the courts below that a survey was necessary to segregate the lands from the public domain. Stoneroad v. Stoneroad, 158 U. S. 240. This was done by the |