Opinion of the Court.

So the court held that where a Mexican grant was for a specific quantity within an area containing a much larger quantity it was only the quantity actually granted which was reserved from disposition by the government during the examination of the validity of the grant; the remainder was at its disposal as a part of the public domain. And in considering Newhall v. Sanger the court said that "the opinion in that case took no notice of the fact (which did not appear in the record) that the grant was one of that class in which the quantity granted was but a small part of the territory embraced within the boundaries named. It proceeded throughout as it would have done on the supposition that the grant covered and filled up the whole territory described. It simply dealt with and affirmed the general proposition that a Mexican grant, while under judicial investigation, was not public land open for disposal and sale, but was reserved territory within the meaning of the law a proposition not seriously disputed."

So, in the present case, there was only reserved from sale and appropriation by the government within the exterior boundaries of the Mexican grant to José Noriega and Robert Livermore so much land as would satisfy the quantity actually granted to them, which was two leagues, and it was competent for the government to grant the remainder of the land within the exterior boundaries to whomsoever it might choose. It was land open to sale by the government and could have been appropriated to the railroad company; and its patent to that company passed the land.

The Supreme Court of California acted upon the theory that the exemption from sale extended to all lands within the exterior boundaries of the grant instead of merely to the amount specifically granted, but as we have shown this was an erroneous view to be taken of the case after the decision of United States v. McLaughlin. And Doolan v. Carr, 125 U. S., at page 632, recognizes the doctrine of that decision. If, therefore, the Mexican grant in this case was valid, and it has been so adjudged, there was reserved from sale only two leagues to be selected under the direction and control of the

Statement of the Case.

government out of any lands within those boundaries. It was for the government itself to prescribe the limits from which the quantity granted by the Mexican government should be selected, and having reserved sufficient from the exterior boundaries to satisfy that amount it was perfectly competent for it to grant any surplus remaining; and it appears from the actual survey of the specific quantity granted by Mexico that the Congressional grant to the railroad company was outside of any of the land thus appropriated.

be

It follows that the judgment of the Supreme Court must

Reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

CURTNER v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 258. Argued April 24, 25, 1893. - Decided May 15, 1893.

When, in a suit in equity brought by the United States to set aside and cancel patents of public land issued by the Land Department, no fraud being charged, it appears that the suit is brought for the benefit of private persons and that the government has no interest in the result, the United States are barred from bringing the suit if the persons for whose benefit the suit is brought would be barred.

When a land-grant railroad company conveys a part of its grant without having received a patent from the United States, and it appears that the United States had issued a patent of the tract to a State, as part of a land grant to the State, and the State parts with its title to an individual, the relative rights of the parties can be determined by proceedings in the courts on behalf of the grantees of the company, against the grantees of the State.

THIS was a bill in equity filed by the United States in the Circuit Court of the United States for the Northern District of California, July 23, 1883, against Henry Curtner and others,

Statement of the Case.

patentees of the State of California, for the purpose of having certain listings of indemnity school lands, situated in that State in township three south, range three east, and in township two south, range one east, set aside and cancelled and the lands decreed to be held subject to the grant made for the purpose of aiding the construction of the Pacific Railroad, as provided in the acts of Congress of July 1, 1862, and July 2, 1864.

The bill was demurred to and amended, and to the amended bill a demurrer was interposed, which was overruled, Judge Sawyer delivering an opinion. 11 Sawyer, 411.

The bill averred that on July 1, 1862, Congress passed an act by which the Union Pacific Railroad Company was incorporated for the purpose of constructing a railroad and telegraph line from the Missouri River to the Pacific Ocean, and by which it was provided that "there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a preëmption or homestead claim may not have attached, at the time the line of said road is definitely fixed. And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and preëmption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company," 12 Stat. 489, 492, c. 120; that the Central Pacific Railroad Company of California was, by the act, declared entitled to the benefit of this land grant, on the same terms and conditions as the Union Pacific Railroad Company; that on October 31, 1864, the Central Pacific Railroad Company of California assigned to the Western Pacific Railroad Company the right to earn the land grant along and through the location where the land in controversy is situated; and that this assignment

Statement of the Case.

was ratified by act of Congress of March 3, 1865. 13 Stat. 504, c. 89.

It was further alleged that, by the act of July 1, 1862, the railroad company seeking the benefit of the grant therein provided for, was required, within two years after its passage, to file a map of its general route in the Department of the Interior, and thereupon the Secretary of that department should cause the lands within fifteen miles of such general route to be withdrawn from preëmption, private entry, and sale; that when any portion of said route was finally located, the Secretary of the Interior should cause the said lands so granted to be surveyed and set off as fast as might be necessary for the purposes therein named, 12 Stat. 493; and that, by the act of July 2, 1864, the time for filing the general route map was extended to July 1, 1865. 13 Stat. 356, c. 216. By this act the fifteen-mile limit was enlarged to twenty-five and the five alternate sections to ten, and by its fourth section it was provided that "any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any preëmption, homestead, swamp land, or other lawful claim."

That a map of the general route of the road was filed in the Department of the Interior on December 8, 1864, and that the Secretary of that department, on January 30, 1865, caused the lands within twenty-five miles of such general route to be withdrawn from preëmption, private entry, and sale; that the land in controversy was within those limits; that on February 1, 1870, the map of the line of the road, as definitely fixed, was filed with the Secretary of the Interior; and on that day the line of the road was definitely fixed; that on December 29, 1869, the road was completed in all respects as contemplated by said act of Congress, and the Western Pacific Railroad Company was entitled to have and receive patents from the United States for the land in controversy, the same being within ten miles of the road so completed, and not sold, reserved, or otherwise disposed of by the United States.

And also that the Western Pacific Railroad Company and

Statement of the Case.

the Central Pacific Railroad Company of California became consolidated on June 22, 1870, under the name of the Central Pacific Railroad Company, and that the said Western Pacific and its successor, the Central Pacific, did, within three years of the completion of the said road, sell and dispose of the land in controversy to persons other than the defendants.

The bill then averred that "the Commissioner of the General Land Office did, at the various and respective times hereinafter stated, without right and through error, inadvertence, and mistake, wrongfully list, by certified lists thereof, to the State of California, the said above described lands," and then follow four lists covering the lands in controversy, dated September 8, 1870; March 11, 1871; November 15, 1871; and March 24, 1873.

That on May 12, 1874, the railroad company by its deputy land agent presented to the register and receiver of the local land office a selection of lands claimed by it under its grant, numbered thirteen, including these lands; that the "mistake, error, and inadvertence of the said Commissioner of the General Land Office in listing by certified lists said land to the State of California was not discovered by complainants or its officers of the said Land Department or by said Central Pacific Railroad Company or its grantees until the 12th of May, 1874, nor could the same by reasonable diligence have been discovered sooner; that thereupon said register and receiver wrongfully and in violation of their duty refused to certify said list as aforesaid requested and refused to certify the same in any manner whatever."

It was further alleged "that the State of California did, at various times subsequent to said eighth (8th) day of September, A.D. 1870, by its land patents purport to convey said lands mentioned in said list to divers and sundry persons other than 'the Western Pacific Railroad Company' or its successors, the Central Pacific Railroad Company, and against the will and without the consent of the said companies or either of them, as follows, to wit:" and then follow the dates of the patents, the lands patented, and the names of the patentees, the dates being February 3, 1871; April 3, 1871; November 29, 1871;