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Opinion of the Court.

townships had not been surveyed. For want of these surveys, it was impossible to ascertain the precise locality, in each township, of the sixteenth and thirty-sixth sections, and of course, except in a few instances such as where the whole township was embraced in a private claim under a Mexican or Spanish grant, it could not be known whether there had been any such settlement on those sections as would authorize the State to select other lands in lieu thereof.

The State was embarrassed by this delay in the public surveys, not only in the use of the sixteenth and thirty-sixth sections, and, when they were occupied by settlers, in the selections of lands in lieu of them, but also in the selection of lands granted by other acts of Congress than that of March 3, 1853. By the eighth section of the general pre-emption law of September 4, 1841, five hundred thousand acres of land were granted to each new State subsequently admitted into the Union, and of course to California, for purposes of internal improvement, the selection of the lands to be made from any public land within her limits, except such as was or might be reserved from sale by a law of Congress or the proclamation of the President, and in such manner as her Legislature should direct, and located in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location.

In May, 1852, in advance of any surveys by the United States, the State passed an act for the sale of these five hundred thousand acres. It authorized the governor to issue land warrants for not less than one hundred and sixty acres, and not more than three hundred and twenty acres in one warrant, to the full amount of the grant, the treasurer to sell them at two dollars an acre, and the purchasers and their assigns to locate them on behalf of the State on any vacant and unappropriated land belonging to the United States subject to such location.

Under these laws selections were made by agents of the State, or purchasers of warrants who were authorized to locate the same. Similar legislation was had and similar proceedings were authorized with respect to other lands granted by acts of Congress to the State. When, however, selections thus made

Opinion of the Court.

were brought to the attention of the Land Department at Washington, they were not recognized as conferring any right to the parties claiming under them. Selections made in advance of the public surveys were held to be wholly invalid. This ruling of the department caused great confusion and embarrassment in the State. Titles thought to be unquestionable were found to be worthless, and interests of great magnitude which had grown up upon their supposed validity were endangered. To relieve against the embarrassments arising from this cause the act of Congress of July 23, 1866, "to quiet land titles in California," 14 Stat. 218, was passed. The first section of this act declares, that, in all cases where the State of California had previously made selections of any portion of the public domain in part satisfaction of a grant made to the State by act of Congress, and had disposed of the same to purchasers in good faith under her laws, the lands so selected should be and were thereby confirmed to the State.

From this confirmation were excepted selections of lands to which an adverse pre-emption or homestead or other right had at the date of the passage of the act been acquired by a settler under the laws of the United States, and of lands reserved for naval, military or Indian purposes, and of mineral land or of land claimed under a valid Mexican or Spanish grant.

The second section provided that where the selections had been made of land which had been surveyed by authority of the United States, it should be the duty of the authorities of the State, where it had not already been done, to notify the register of the United States land office for the district, in which the land was located, of uch selections, and that the notice should be regarded as the date of the State's selections.

The third section provided that where the selections had been made of land which had not been surveyed by authority of the United States, but the selections had been surveyed by authority of and under laws of the State, and the land sold to purchasers in good faith, such selections should, from the date of the passage of the act, when marked off and designated in the field, have the same force and effect as the pre-emption rights of a settler on unsurveyed public land.

Opinion of the Court.

As thus seen, selections made pursuant to this act, embracing lands held or claimed under a valid Mexican or Spanish grant, were excepted from confirmation. By the act of 1853, 10 Stat. ch. 145, § 6, lands claimed under "any foreign grant or title" were excepted from pre-emption. The effect of these exceptions was to exclude from settlement large tracts of land in the State, which, upon a definite ascertainment of the boundaries of the grants, would have been open to settlement. A very great portion of the lands in the State were covered by Mexican or Spanish grants. Some of the grants were by specific boundaries, and the extent of the land covered by then could be readily ascertained without an official survey. But, by far the greater number were of a specific quantity of land lying within outboundaries embracing a much larger quantity. Thus, grants of one or two leagues would often describe the quantity as being within boundaries embracing double or treble that amount, the grant declaring that the quantity was to be surveyed off by officers of the vicinage, and the surplus reserved for the use of the nation. The grantee in such case was of course entitled only to the specific quantity named, but what portion of the general tract should be set apart to him could only be determined by a survey under the authority of the government. Until then the grantee and the government were tenants in common of the whole tract. No one could intrude upon any portion of it, the whole being exempted from the pre-emption laws. The practical effect of this condition in many cases was to leave the grantee, until the official survey, in the possession, use and enjoyment of a tract of land containing a much larger quantity than that granted. And before such survey could be made the validity of the grant was to be determined by the commission appointed to investigate private land claims in California, and the action of the commission was subject to review by the District Court of the United States, with a right of appeal from its decision to the Supreme Court. When the validity of the grant was confirmed the confirmee could not measure off the quantity for himself and thus legally segregate it from the balance of the tract. As we said in Van Reynegan v. Bolton, 95 U. S. 33, 36: "The right to make

Opinion of the Court.

the segregation rested exclusively with the government and could only be exercised by its officers. Until they acted and effected the segregation, the confirmees were interested in preserving the entire tract from waste and injury, and in improving it; for until then they could not know what part might be assigned to them. Until then no third person could interfere with their right to the possession of the whole. No third per son could be permitted to determine, in advance of such segregation, that any particular locality would fall within the surplus, and thereby justify his intrusion upon it and its detention from them. If one person could, in this way, appropriate a particular parcel to bimself, all persons could do so; and thus the confirmees would soon be stripped of the land which was intended by the government as a donation to its grantees, whose interests they have acquired, for the benefit of parties who were never in its contemplation. If the law were otherwise than as stated, the confirmees would find their possessions limited, first in one direction and then in another, each intruder asserting that the parcel occupied by him fell within the surplus, until, in the end, they would be excluded from the entire tract. Cornwall v. Culver, 16 Cal. 423, 429; Riley v. Heisch, 18 Cal. 198; Mahoney v. Van Winkle, 21 Cal. 552."

The delays before the official surveys were made, even after the confirmation of a grant, sometimes lasted for years. In some instances they were attributable to the want of sufficient appropriations by Congress to meet the expenses of the surveys. To obviate them from this cause Congress provided in § 6 of the act of July 1, 1864, "to expedite the settlement of titles to lands in the State of California," 13 Stat. ch. 194, that it should be the duty of the Surveyor General of California to cause all private land claims finally confirmed to be accurately surveyed and plats thereof to be made whenever requested by the claimants: provided, that each claimant requesting a survey and plat should first deposit in the District Court of the district within which the land was situated a sufficient sum of money to pay the expenses of such survey and plat, and of the publication required by the first section of the

Opinion of the Court.

act. And in § 7 it prescribed the manner in which the surveys should be made.

But, inasmuch as a confirmee had the possession and use of the whole tract, from which his quantity was to be taken, until it was segregated, he was not in haste to have the survey made of his claim. It was for his interest to postpone it; and therefore few confirmees of grants of quantity within exterior boundaries, embracing a larger amount, applied for surveys under that act. Accordingly when the act of July 23, 1866, "to quiet land titles in California" 14 Stat. 218, ch. 219, was passed, confirming selections previously made by the State, except those from lands held or claimed under a valid Mexican or Spanish grant, it provided in § 8 as follows: "That in all cases where a claim to land by virtue of a right or title derived from the Spanish or Mexican authorities has been finally confirmed, and a survey and plat thereof shall not have been requested within ten months from the passage of this act, as provided by sections six and seven of the act of July first, eighteen hundred and sixty-four, 'to expedite the settlement of titles to lands in the State of California,' and in all cases where a like claim shall hereafter be finally confirmed, and a survey and plat thereof shall not be requested, as provided by said sections within ten months after the passage of this act, or any final confirmation hereafter made, it shall be the duty of the Surveyor General of the United States for California, as soon as practicable after the expiration of ten months from the passage of this act, or such final confirmation hereafter made, to cause the lines of the public surveys to be extended over such land, and he shall set off, in full satisfaction of such grant, and according to the lines of the public surveys, the quantity of land confirmed in such final decree, and as nearly as can be done in accordance with such decree; and all the land not included in such grant as so set off shall be subject to the general land laws of the United States: Provided, that nothing in this act shall be construed so as in any manner to interfere with the right of bona fide pre-emption claimants." 14 Stat. 220, 221.

After the passage of this act neither the State, nor persons

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