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

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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

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Contzen survey, which we have seen was directed to befiled by the lower courts without alteration, a decision which we approve.

There are other contentions of appellants which call for no extended comment, as we concur with the courts below in regard to them. For instance, it is contended that the surveyor general of New Mexico had lost authority to approve the location and that duty had devolved upon the surveyor general of Arizona. To the contention it may be replied, as the Court of Appeals in effect replied, that the act of 1860 devolved the duty on the surveyor general of New Mexico and the Land Office, upon whom devolved the ultimate responsibility, and who approved the location.

A point is made upon attempts to change the location, of which it is enough to say that they were not accepted by the Land Department and the claimants were remitted to the location under consideration.

Another contention is made on the conflict of the grant as located with other grants, to which the Court of Appeals replied that it was not now concerned with such question and that if, as suggested, a controversy should arise it "will properly be adjudicated in the courts where the lands are located." In this we concur.

Whose duty it was to pay the expense of the survey is also in controversy. The appellants assert it to have been the duty of the claimants under the act of June 2, 1862 (12 Stat. 410, c. 90), and that was the view, we have seen, of the Land Department. The appellees contend that the obligation was upon the Government under the granting act. That act provides, as we have seen, that "it shall be the duty of the surveyor general of New Mexico to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them. The obligation is explicit, and there was reason for it. To accommodate conflicting claims and at the instance of

the Government the Baca claimants gave up their rights to a definite tract of land, and, as appellees say, expressing the equities of the claimants, whatever its character or condition, and the Government therefore would naturally make provision for the location of the substituted land as expeditiously as possible and without expense to the Baca heirs. We therefore think the act of 1860, not that of 1862, applied.

The contention that appellees have not shown sufficient title is untenable.

Decree affirmed.

WESTERN UNION TELEGRAPH COMPANY v.

BROWN.

ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA.

No. 355. Argued May 5, 1914.-Decided June 22, 1914.

A recovery in one jurisdiction for a tort committed in another must be based on the ground of an obligation incurred at the place of the tort which is not only the ground, but the measure, of the maximum

recovery.

A State cannot legislate so as to affect conduct outside of its jurisdiction and within territory over which the United States has exclusive jurisdiction.

A State may not determine the conduct required of a telegraph company in transmitting interstate messages by determining the consequences of not pursuing such conduct in another State. The statute of South Carolina making mental anguish caused by the negligent non-delivery of a telegram a cause of action is, as applied to telegrams the negligent non-delivery of which occurred in the District of Columbia, an unconstitutional attempt to regulate conduct within territory wholly under the jurisdiction of the United