234 U. S. Opinion of the Court. "And I further certify that the said tract of land being the one-fifth part of the private claim confirmed to the said heirs, contains ninety-nine thousand two hundred and eighty-nine acres and thirty-nine hundredths of an acre, and that this location is the third of the series (application to locate the same, filed in this office October 31, 1862-dated October 30, 1862-having been withdrawnSee Letter of Commissioner of the General Land Office dated February 5, 1863) and, with the three locations, numbered one, two and four heretofore made, included four-fifths of the said private claim confirmed to the heirs of Luis Maria Cabeza de Baca, by the act of Congress approved June 21, 1860.-Said location is hereby approved. "In witness whereof I have hereto set my hand this 17th day of June, 1863. "JOHN A. CLARK, "Surveyor General." The communication was mailed the following day, with a letter to the Commissioner as follows: "SURVEYOR GENERAL'S OFFICE, "Santa Fe, New Mexico, June 18, 1863. "Honl. J. M. EDMUNDS, Comm'r of General Land Office, Washington City, D. C. "Sir: I enclose herewith copy of the application and certificate of location No. 3 of the private claim confirmed to the heirs of Luis Maria Cabeza de Baca. "As this location is far beyond any of the public surveys, I have not deemed it necessary to procure any certificate from the Register and Receiver of the Land Office, as from the nature of the case, they cannot officially know anything concerning it. "I am respectfully your "Obt. servt. "JOHN A. CLARK, "Surveyor General." Opinion of the Court. 234 U.S. On July 18 the Commissioner acknowledged the receipt of the communication, stating: "Your approval of the location under consideration is found to have ignored the imperative condition that the lands selected at the base of Solero Mountain now included by act of Congress approved February 24, 1863, in the Territory of Arizona, is vacant land and not mineral. Before the application of Location No. 3 of the heirs aforesaid can be approved, by this office, it is necessary that our instructions of the 26th of July 1860, should be complied with by furnishing a statement from yourself and Register and Receiver that the land thus selected and embracing one-fifth of the claim or 99,289 39-100 acres is vacant and not mineral. "I am very respectfully, "Your obt. sevt. J. M. EDMUNDS, Commissioner." In a letter dated April 2, 1864, the surveyor general, in reply to that of the Commissioner, stated, "that there is no evidence in the office of the surveyor general of New Mexico" that the tract selected "contains any mineral or that it is occupied. There have been no public surveys made in the neighborhood of said tract, and there is no record of, or concerning, the land in question in the surveyor general's office, nor-as I believe-in the office of the Register or Receiver of the Land Office of New Mexico. As I am personally unacquainted with that region of country, I cannot certify that the land in question is 'vacant and not mineral' or otherwise. Those facts can only be determined by actual examination and survey." On March 25, 1864, the Receiver of the Land Office in New Mexico made a certificate stating that the lands applied for "are vacant and not mineral so far as the records of this office show (not having been surveyed). The Register in his certificate of the same date stated that the lands "are not surveyed, and, from all information in this office, are vacant and not mineral." On about April 9, 1864, having been required by the Baca heirs to survey the tract located by them, the Commissioner of the General Land Office issued instructions to the surveyor general of Arizona which recited that the location by the Baca heirs had been approved by the surveyor general of New Mexico in whose jurisdiction, it was said, the application properly came at the date of the approval. The instructions referred to the act of Congress of 1860 and the rights it conferred and stated that the act of June 2, 1862, required all grants to be surveyed at the expense of the claimants and that whenever the Baca claimants should pay or secure to be paid a sum sufficient to liquidate all the expenses a survey was to be directed of the application and transcripts of the field notes and plats to be transmitted to the General Land Office to constitute "the muniments of title, the law not requiring the issue of patents of these claims." Directions as to the manner of marking lands were given. Accompanying the instructions was a copy of the certificate of the surveyor general of New Mexico dated June 17, 1863, and following that the following order: "GENERAL LAND OFFICE, "LEVI BASHFORD, ESQ., Surveyor-General, Tucson, Ari zona. "Sir: The foregoing statement and the certificate of Surveyor General Clark having been submitted to this Department and having undergone a careful examination, the location being approved by him to perfect title under the authority of the act approved June 21, 1860, application for survey having been made. Instructions (copy herewith attached) have been given to Surveyor General Levi Bashford of Arizona in which Territory the lands located now are, to run the lines indicated and forward complete survey and plat to be placed on file for future reference as required by law. "J. M. EDMUNDS, Commr." In pursuance of this order a survey was undertaken, but the surveyors, while engaged in the work of the survey, were killed by hostile Indiáns, and no survey was ever returned (alleged on information and belief). Notwithstanding the repeated requests of the heirs of Baca, the Commissioner of the General Land Office failed and refused to continue or have made the survey ordered as above stated and persisted in such refusal until on or about June 17, 1905, on which date the Commissioner, by an official order, authorized and directed the surveyor general of Arizona to cause a survey to be made, and in pursuance of and under contract No. 136 dated June 17, 1905, one Philip Contzen was authorized and required to run the lines indicated on the application of the Baca heirs (Float No. 3) so as to adjust the lines, as near as might be, to the lines of the public surveys. The survey was made and duly certified by the surveyor general of Arizona as strictly conformable to the field notes which had been examined, approved and filed in his office, and that the plat and survey had been examined and found correct by the Commissioner of the General Land Office. On or about January 12, 1905, the Commissioner of the General Land Office, disregarding the decision and order of the then Commissioner of the Land Office of April 9, 1864, gave such instructions to the surveyor general of Arizona regarding his duties as to the character of the lands that that officer in December, 1906, forwarded the plat and survey hereinbefore mentioned to the Commissioner of the General Land Office with a report accompanied by the alleged information which he had gathered and the recommendation that the location of Baca Float No. 3, made as hereinbefore stated June 17, 1863, be entirely rejected. On or about May 13, 1907, contrary to law and without jurisdiction so to do, and disregarding the order of his predecessor, the Commissioner rendered a decision ordering a hearing before the surveyor general of Arizona to determine whether said lands were, at the time of said location, vacant and non-mineral. On or about June 2, 1908, the First Assistant Secretary of the Interior, in a decision upon an appeal from said decision of the Commissioner, contrary to law and without jurisdiction, affirmed the decision of the Commissioner in so far as it remanded the case for a hearing before the surveyor general of Ari zona. A motion to review was subsequently made and denied. By the acts done in the selection and location of the lands, including the order of Commissioner Edmunds of April 9, 1864, requiring a survey thereof, the title to the lands vested in fee in the heirs of Baca, and it was not within the power of the Land Department to revoke or annul the prior rulings or to evade the rights of such heirs or their successors in title and that (this on information and belief) the Land Department has always treated the lands selected as segregated from the public domain and they have for many years been so marked upon the maps issued by the Department, as more specially appears from the map of the Territory of Arizona of 1903. It is alleged that one Henry Ohm and one Lyman W. Wakefield have filed homestead applications upon land lying within the lands located by the Baca heirs and instructions have been issued from the officers of the Land Department permitting proofs to be made thereof. It is alleged that there are many other entries upon the lands and that they and Ohm's and Wakefield's applications will cast clouds upon the title of the Baca location. |