Opinion of the Court.

company shall have completed not less than twenty consecutive miles of any portion of said railroad and telegraph line, ready for the service contemplated by this act, and supplied with all necessary drains, culverts, viaducts, crossings, sidings, bridges, turnouts, watering places, depots, equipments, furniture, and all other appurtenances of a first-class railroad, the rails and all the other iron used in the construction and equipment of said road to be American manufacture of the best quality, the President of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that not less than twenty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue conveying the right and title to said lands to said company, on each side of the road as far as the same is completed, to the amount aforesaid; and patents shall in like manner issue as each twenty miles of said railroad and telegraph line are completed, upon certificate of said commissioners."

The definite location of the road was fixed in January, 1865, and the road was completed in all respects as required by the act of Congress and accepted by the President prior to the 1st of June, 1869. The Mexican grant to José Noriega and Robert Livermore was known by the name of "Las Pocitas," and as confirmed was described and bounded as follows, viz.: On the north by the Lomas de las Cuevas, on the east by the Sierra de Buenos Ayres, on the south by the dividing line of the establishment of San José, and on the west by the rancho of Don José Dolores Pacheco, containing in all two square leagues, a little more or less. The confirmation was of that quantity if contained within the boundaries named; and if less than that quantity was found to be contained therein, then the confirmation was for the less quantity, and for all of the described tract.

The grantees in February, 1852, petitioned the board of land commissioners, created by the act of Congress of March 3, 1851, for a confirmation of the grant, and in February,

Opinion of the Court.

1854, it was confirmed with the description and condition mentioned.

On appeal the decree was affirmed by the United States District Court for the Northern District of California in February, 1859, to the same extent and for the same quantity and under the same condition. On appeal the decree of the District Court was affirmed by the Supreme Court of the United States in January, 1861, and its mandate was filed in the District Court in February, 1865, upon which an order was entered in that court that the claimants, the grantees named, have leave to proceed upon the decree of the District Court as a final decree.

Two official surveys were made of the land confirmed, one in 1865 by the deputy United States surveyor-general of the district. This survey, as appears on the maps, embraced within the exterior boundaries nearly ten square leagues. It was disapproved by the Secretary of the Interior, because it embraced more than two square leagues, and he directed that a new survey be made. A new survey was accordingly made, which was approved by the surveyor-general and the Commissioner of the Land Office, and, on the 6th of June, 1871, by the Secretary of the Interior. On the 20th of August, 1872, a patent of the United States for the land, the survey of which was thus approved, was issued to the grantees. The land in controversy in this case is not included in the land thus surveyed and patented.

In Newhall v. Sanger, 92 U. S. 761, it was held that land within the boundaries of a Mexican grant, while proceedings were pending in the tribunals of the United States to determine its validity, was exempt from sale and preëmption, and, therefore, of appropriation under the land grant acts of the United States in aid of the construction of railroads and telegraph lines. Those acts declared that the sections of land granted were to be of public lands of the United States, and by public lands were meant lands of the United States which were open for sale and preëmption; and that of these public lands there should be excepted such portions as had been sold or reserved from sale or otherwise disposed of by the United

VOL. CXLIX-42

Opinion of the Court.

States, or to which a preëmption or homestead right had attached at the time of the definite location of the roads.

For some years after the decision in Newhall v. Sanger it was supposed that the reservation from such appropriation was extended to all lands within the outboundaries of a Mexican grant without reference to the actual quantity granted. The interpretation given to the term "boundaries " used in the opinion in that case led to this conclusion.

But the case of United States v. McLaughlin, 127 U. S. 428, where it was attempted to extend the reservation from sale to lands nearly one hundred miles square upon the ground that that amount was within the exterior boundaries designated, although the amount intended to be granted was only eleven leagues, led to a consideration of the facts in Newhall v. Sanger, and to a better understanding of the import of its decision. It then appeared that there was no allegation in the pleadings of that case that the boundaries of the grant designated exceeded the actual amount intended to be granted. As appeared by them, it was a grant of a specific quantity within bounda ries which embraced no greater amount. The language used with reference to the exemption of a grant of that character evidently presented a different question from that of a grant with boundaries embracing an area exceeding many times the quantity actually granted. So in United States v. McLaughlin, the court considered the different kinds of grants of the Mexican government, which were: 1, grants by specific boundaries, where the donee was entitled to the whole tract; 2, grants of quantity, as of one or more leagues within a larger tract described by what was called outboundaries, where the donee was entitled to the quantity specified, and no more; 3, grants of a certain place or rancho by name, where the donee was entitled to the whole tract, according to the boundaries given, or, if not given, according to its extent as shown by previous possession. In the second class, where the grant was of quantity within boundaries embracing a much larger quantity, the grant was a float, to be located by the action of the government before it could attach to any specific tract, like the land warrants, as the court said, of the United States.

Opinion of the Court.

The grant in the McLaughlin case was a float, and, according to the different interpretations of the outside boundaries, the region embraced within them was fifty square leagues in the one case and over eighty in the other, and the court pertinently asked whether such an extensive region could be under an interdict, as reserved land, absolutely exempt from disposition even by Congress, during the whole period covered by the litigation respecting the validity of the grant, which, if found valid, was only for the quantity of eleven square leagues.

In that particular case the grant was found to be a wretched fraud, but the court said: "Laying all this aside, however, and looking at the claim as one fairly sub judice, we may repeat our question, whether it can be possible that so great a region of country was to be regarded as reserved from alienation for so small a cause-an ordinary eleven-league grant."

The grant of eleven square leagues out of a country seventy or eighty miles in length, and from six to ten in width, containing over eighty square leagues, was, upon the theory of reservation advanced, deemed to have the effect of retiring from the supposed public domain the whole eighty leagues. and more for a period of years, no one could state how long. The court did not consider that this view of the reservation intended was reasonable, and observed that it was at the "option of the government, not of the grantee, to locate the quantity granted; and, of course, a grant by the government of any part of the territory contained within the outside limits of the grant only reduces by so much the area within which the original grantee's proper quantity may be located. If the government," added the court, "has the right to say where it shall be located, it certainly has the right to say where it shall not be located; and if it sells land to a third person at a place within the general territory of the original grant, it is equivalent to saying that the quantity due to the original grantee is not to be located there. In other words, if the territory comprehended in the outside limits and bounds of a Mexican grant contains eighty leagues, and the quantity granted is only ten leagues, the government may dispose of seventy leagues without doing any wrong to the original grantee.' It ob

Opinion of the Court.

served, it is true, that it was the practice in administering the public lands to allow the original grantee to make his own selection of the place where he will have the quantity located, provided it could be located in one tract, but that was a matter of favor and not of right.

In illustrating the serious, if not absurd, results which would follow from a different view, the court referred to the grant made by the Mexican government to President Yturbide in 1822 of twenty leagues square, or four hundred square leagues of land, to be located in Texas. In 1835 the Mexican Congress authorized his heirs to locate the land in New Mexico or in Upper or Lower California. In 1841 it was decreed that it should be located in Upper California—that is, the present State of California. And the claim was actually presented to the board of land commissioners and appealed to the District Court, and thence to the Supreme Court. So, observed the court, "according to the contention of the complainant in the present case, all California was interdicted territory during the pendency of that claim before the board and in the courts." "We can well understand," the court added, "that Indian reservations and reservations for military and other public purposes of the government should be considered as absolutely reserved and withdrawn from that portion of the public lands which are disposable to purchasers and settlers, for, in those cases, the use to which they are devoted, and for which they are deemed to be reserved, extends to every foot of the reservation. The same reason applies to Mexican grants of specific tracts, such as a grant for all the land within certain definite boundaries named, or all the land comprised in a certain rancho or estate. But this reason does not apply to grants of a certain quantity of land, within a territory named or described, containing a much larger area than the amount granted, and where, as in the present case, the right of location within the larger territory is in the government, and not in the grantee. In such case, the use does not attach to the whole territory, but only to a part of it, and to such part as the government chooses to designate, provided the requisite quantity be appropriated."