D.-PRIVATE LAND CLAIMS.

During the fiscal year which ended June 30, 1877, the following cases have been disposed of:

California private land claims patented

New Mexico private land claims patented......

New Mexico donation land claims patented

Oregon and Washington Territory donation land claims patented.

Louisiana and Florida private land claims patented...

Indian claims patented

Final approvals of entries made with certificates of location, act of June 22, 1860, and supplemental legislation....

Cases in Louisiana and Florida for which script has been issued..

Total

21

5

377

20

99

73

11

607

In addition to the foregoing, there have also been examined, approved, and recorded the assignments of 326 certificates of location under said act of June 22, 1860, and supplemental legislation.

The above statement has reference only to such cases as have been finally settled. Preliminary examinations have been made in a large number of cases, some of which have been passed for patent, while others have been suspended on account of imperfections, and are now the subjects of correspondence. A number of cases have been decided, and are now on appeal, or waiting the expiration of the time within which appeal may be taken, or, having been decided on appeal, are now waiting the execution of the decision by the proper officers.

The total number of letters received in this division of the office during the fiscal year was 1,032, and the total number of letters written was 1,135, covering 1,375 record pages.

Decisions of the Supreme Court of the United States affecting private land claims in New Mexico confirmed by the act June 21, 1860, (Statutes at Large, vol. 12, p. 71.)

No. 73.-OCTOBER TERM, 1876.

JOHN G. TAMELING, PLAINTIFF IN ERROR, vs. THE UNITED STATES FREEHOLD AND EMIGRATION COMPANY.

In error to the supreme court of the Territory of Colorado.

Mr. Justice DAVIS delivered the opinion of the court:

This is an action by the defendant in error against Tameling, to recover possession of one hundred and sixty acres, in the county of Costilla and Territory of Colorado. The tract is situate within the exterior boundaries of a larger one, known as the "Costilla estate," which was severed from the "Sangre de Cristo grant." The latter is known and designated as “claim No. 14 of Charles Beanbien," in the letter of the Secretary of the Interior to the Speaker of the House of Representatives, bearing date February 11, 1857. With that claim were transmitted copies of the grant, order of prefect's court, notice of claim, de d of administrator, testimony, and report.

The case was submitted to the district court on an agreed statement of facts. Judgment was rendered in favor of the plaintiff below. It was affirmed by the supreme court of the Territory, and Tameling sued out this writ of error.

The determination of this case depends upon the effect of the act of Congress "to confirm certain private land claims in the Territory of New Mexico" approved June 21, 1860. (12 Stat., 71.) Did the act confirm the Sangre de Cristo grant to the extent of the exterior boundaries of the claim? If it did, the judgment below must be affirmed. If it did not, inasmuch as no specific portion of the land within those boundaries was severed from the remainder and confirmed to the claimants, the plaintiff below, who derives title under them, has not shown his right to the demanded premises, in possession of the defendant below, and the judgment must be reversed.

The plaintiff in error insists that, under the Mexican colonization laws in force when the grant was made, not more than eleven square leagues for each petitioner could be

lawfully granted. There were, in the present instance, but two petitioners, and the lands within the boundaries of the grant are largely in excess of that quantity.

We have repeatedly held that individual rights of property, in the territory ceded by Mexico to the United States, were not affected by the change of sovereignty and jurisdiction. They 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. The duty of providing the mode of securing those rights and fulfilling the obligations which the treaty imposed was within the appropriate province of the political department of the Government. In discharging it, Congress required that all titles to real property in California, whether inchoate or consummate, should undergo judicial examination. If any claimant failed to avail himself, within a prescribed time, of the provisions of the act of March 3, 1851, and assert his rights thereunder, they were completely barred, and the land covered by the claim reverted to the public domain. The California land claims disposed of in this court were generally asserted in a direct proceeding against the United States. It became our duty, as it has been that of the board of commissioners and of the district court, to decide on the validity of the claim upon the documentary and other evidence incorporated in the record. We were required to be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government froin which the claim was derived, the principles of equity, and the decisions of this court, as far as they were applicable. Were we exer cising appellate jurisdiction over the proceedings of a court or officer especially appointed to determine the validity and extent of the grant in question, it would be our duty to either affirm or reverse the decision, pursuant to the rules which Congress has prescribed for our government. But that body adopted a different mode for the adjustment of land claims in New Mexico. By the 8th section of the act of 1854, (10 Stat., 308,) the duty was expressly enjoined upon the surveyor general of that Territory to ascertain the origin, nature, character, and extent of all such claims, under the laws, usages, and customs of Spain and Mexico. He was empowered, for that purpose, to issue notices, summon witnesses, administer oaths, and perform all necessary acts in the premises. He was required to make a full report on all such claims, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same, under the laws, usages, and customs of the country before the cession to the United States. That report, according to a form to be prescribed by the Secretary of the Interior, was to be laid before Congress for such action as might be deemed just and proper.

It will thus be seen that the two modes for the determination of Spanish and Mexican land claims were radically different. In California, a procedure essentially judicial in its character is provided for securing an adjudication of them, with the right of ultimate appeal, by ether the claimant or the United States, to this court. The surveyor general of New Mexico is clothed with large powers, and required to decide upon the validity of each claim. Final action on the subject is reserved to Congress. Such action is, of course, conclusive, and, therefore, not subject to review in this or any other forum.

It is obviously not the duty of this court to sit in judgment upon either the recital of matters of fact by the surveyor general or his decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration and action. We need only say that the facts are distinctly set forth that Luis Lee and Narciso Beaubien, September 27, 1843, petitioned the then civil and military governor of New Mexico" for a grant of land in what is now the county of Taos, embracing the Costilla, Culebra, and Trinchera Rivers, including the Rito of the Indians, and Sangre de Cristo to its junction with the Del Norte River;" that the petition was referred by the governor to the prefect, with instructions to give the possession asked for by the petitioners; that they were put in possession, with the boundaries contained in the petition," vesting in them, their children and successors, a title in fee to said lands." After setting forth that, by the death of one of the parties, Charles Beaubien, as his heir at law, inherited the undivided half of the land, and that he acquired the remainder from the administrator of the other grantee, the conclusion is reached that the grant is a good and valid one, and that a legal title vests in Charles Beaubien to the land embraced within the limits contained iu the petition. The grant was approved and recommended for confirmation by Congress.

Congress acted upon the claim "as recommended for coufirmation by the surveyor general." The confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract. Objections to the validity of the grant have been earnestly and elaborately pressed upon our attention. This was matter for the consideration of Congress, and we deem ourselves concluded by the action of that body. The phraseology of the confirmatory act is, in our opiniou, explicit and unequivocal. We have at the present term, in Ryan et al. vs. Carter et al., recognized and enforced as the settled doctrine of this court that such an act passes the title of the United States as effectually as if it contained in

terms a grant de novo, and that a grant may be made by a law as well as by a patent pursuant to law. Judgment affirmed.

DEPARTMENT OF THE IINTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 10, 1877.

SIR: I have the honor to invite your attention to the decision of your predecessor dared December 31, 1869, in the matter of the survey of the private land claim in New Mexico known as the Beaubean and Miranda or Maxwell grant, wherein it is held, notwithstanding the fact that natural landmarks were called for, that said claim was not confirmed by the act of June 21, 1860, to any greater extent than eleven square leagues to each claimant, which said decision also contained in-tructions to this office, in effect, that where a Mexican clonization grant is confirmed without measurement of boundaris or of distinct specification of the quantity confirmed, either in the statute or in the report upon which confirmation was made, no greater quantity than eleven leagues to each claimant shall be surveyed.

In other words, the effect of said decision was to apply the restriction prescribed by the law of the Mexican Congress of August 18, 1824, to a legislative confirmation of a claim by specific boundaries.

The Supreme Court of the United States, at its October term, 1876, rendered a decision (copy herewith) in the cause entitled John G. Tameling, plaintiff in error, vs. The United States Freehold and Emigration Company, which, in all essential particulars, is a case paral el to the aforesaid Beaubean and Miranda case, wherein it will be observed it is held, Congress having acted upon the claim "as recommended for confirmation by the surveyor general," "the confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract." "We have at the present term recognized and enforced as the settled doctrine of this court that such an act passes the title of the United States as effectually as if it contained in terms a grant de novo, and that a grant may be made by law as well as by a patent pursuant to law."

The doctrine announced in said decision of the Supreme Court being diametrically opposite that set forth in the aforesaid decision of the Department, I have the honor to request that I be instructed as to how I shall proceed in the adjudication of like cases in the future.

SIR: I have the honor to acknowledge the receipt of your communication of the 10th instant, addressed to my predecessor, inclosing the decision of Mr. Secretary Cox, dated December 31, 1869, in relation to the survey of the Beaubien and Miranda claim to lands in New Mexico and Colorado, in which the rule was laid down for that and all like cases, "that where a Mexican colonization grant is confirmed without measurements of boundaries, or of distinct specification of the quantity confirmed, either in the statute or in the report upon which confirmation was made, no greater quantity than eleven square leagues to each claimant shall be surveyed and set off to them; that such quantity shall be surveyed in tracts of eleven square leagues each, the general position of such tracts to be selected by the grantee, and the tract to be then surveyed as compactly as is practicable."

66

You also transmitted a copy of the decision of the Supreme Court of the United States at its October term 1876, in the case of John G. Tameling vs. The United States Freehold and Emigration Company, a case similar in all essential particulars to the case of Beaubien and Miranda, in which the court say, Congress acted upon the claim as recommended by the surveyor general." "The confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract."

The decision of the Supreme Court must be taken as the true construction of the law, by which the rights of parties are to be determined.

You will hereafter be governed by the rule laid down by the court in said case in all similar cases, and patents will issue for the tract recommended by the surveyor general and confirmed by an act of Congress, notwithstanding it may exceed in amount eleven square leagues of land.

The papers transmitted with your letter "D," of March 10, 1877, are herewith returned.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

C. SCHURZ,

Secretary.

The act of appropriation for the fiscal year ending June 30, 1877, (vol. 19, p. 120,) provided for the expenditure of $300,000 in the survey of public lands and private land claims. This sum has been apportioned among the several surveying districts as follows:

Under date August 23, 1876, instructions, modified in accordance with the requirements of the act of appropriation, were issued to the several surveyors-general, substantially as follows:

By an act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1877, and for other purposes, approved July 31, 1876, there was appropriated:

1st. "For survey of the public lands and private land claims, three hundred thousand dollars: Provided, That the sum hereby appropriated shall be expended in such surveys as the public interest may require, under the direction of the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, and at such rates as the Secretary of the Interior shall prescribe, not exceeding the rate herein authorized: Provided, That no lands shall be surveyed under this appropriation except"First. Those adapted to agriculture without artificial irrigation.

"Second. Irrigable lands, or such as can be redeemed, aud for which there is sufficient accessible water for the reclamation and cultivation of the same, not otherwise utilized or claimed.

"Third. Timber lands bearing timber of commercial value.

Fourth. Coal lands containing coal of commercial value. "Fifth. Exterior boundary of town sites.

"Sixth. Private land claims.

"The cost of such surveys shall not exceed ten dollars per mi'e for standard lines, and the starting point for said surveys may be established by triangulation; seven dollars for township and six dollars for section lines, except that the Commissioner of the General Land Office may allow for the survey of standard lines in heavily timbered land a sum not exceeding thirteen dollars per mile." "And provided further, That before any land granted to any railroad company by the United States shall be conveyed to

such company, or any persons entitled thereto under any of the acts incorporating or relating to said company, unless such company is exempted by law from the payment of such cost, there shall first be paid into the Treasury of the United States the cost of surveying, collecting, and conveying the same by the said company or persons in interest."

In conformity to law the Secretary of the Interior, under date of the 22d instant, (August, 1876,) out of said appropriation of $300,000, apportioned the sum of $13,500 for the surveys in your surveying district at the rates prescribed by law, which must not be exceeded in letting contracts for the field work, specifically authorized under the six heads herein before enumerated, and you are hereby directed not to expend any portion of the apportionment in the survey of any other quality of lands than such as are prescribed by the foregoing provisions of the appropriation act.

In order to secure a strict compliance with the law, you are instructed to give priority of survey to lands already settled upon, and to require your deputies to execute the work in person, or under their immediate personal supervision in the field and in acordance with the printed manual of surveying instructions, and your special instructions, which must not conflict with the manual or the existing laws.

You will caution your deputies, who must be practical surveyors and familiar with the Government surveys, not to commence their surveys before the approval of their contracts by the Commissioner of the General Land Office.

With the view of reaching distant settlements awaiting the extension of the lines of public surveys, and to bring such localities within the range of the regular system of the public surveys, provision of law has been made for the determination of the starting point of surveys by triangulation instead of starting from standard parallels or the auxiliar bases prolonged over sterile and unsurveyable lands.

It will, therefore, be in your power to contract for the survey of such tracts, in case exigencies occur which seem to require it. The cost of triangulating in such cases not being provided for by law, will not constitute a proper charge in the accounts of your deputies against the Government.

Where the country intervening between the public surveys and the unsurveyed settlements is of an arable or surveyable character, the proper base should be extended in the usual manner, for which the deputy would be paid at the legal rate.

In letting contracts for the subdivision of the public lands, you are required to stipulate the condition that the survey must include all the lands in the township contracted for subdivision, which are by law classed as surveyable; and, except in case of triangulation, that the deputy shall start from the proper bases or standard parallels.

If these last shall not have been established, that must first be done, and then, if there are no exterior lines of the township surveyed, the deputy must first survey them and finally subdivide the township into sections, running, measuring, and marking the lines from south to north, in the regular process, avoiding the practice in some surveying districts of surveying partly from north to south and partly from south to north, leaving the interior of the township partly unsectionized, ostensibly for specious reasons assigned, that the rough and mountainous features of the country precluded the possibility of extending the lines over the same. Subsequently, the unsurveyed portion of such townships is frequently settled upon, and under the deposit system the survey of the township is completed without difficulty, except that the last surveyor finds it impossible in such cases to connect his work with the corners of the previous surveys by due north and south or east and west lines as the law requires.

In order to obviate similar irregularities in your district you must enjoin your deputies to strictly adhere to the system of public surveys, and comply with the printed Manual of Surveying Instructions and the existing laws as illustrated on diagrams A, B, and C of the Manual, and the requirements of instructions from this office dated April 14, 1875, in reference to the establishment of stone corners by witnessing them by pits. The modification introduced in the supplemental printed instructions of June 1, 1864, requiring navigable rivers to be meandered on one bank only, is hereby rescinded, and you will therefore cause both banks of such streams to be meandered in future, conformably to the printed Manual of Surveying Instructions, of February 22, 1855, at page 15, legalized by act of Congress approved May 30, 1862.

In cases where townships have formerly been partly surveyed, and it becomes necessary to complete the same, you are directed to instruct your deputies to fully describe the old corners identified by them in the field, and from which they will start in the completion of the surveys, and to state in their field notes the kind of corner, bearing trees, or other witnesses to the same, so that there will be no doubt as to the proper corner from which additional surveys are init ated.

The particular localities in your surveying district requiring earliest surveys are left to your election, but you will exercise your best judgment in the selection thereof, so as to subserve the interests of the actual and bona fide settlers on public lands who may apply to you for the extension of the lines of public surveys.

At the same time you will not omit other meritorious claims, and you will bear in mind that you must confine the surveying liabilities within the sum apportioned and