Opinion of the Court.

entitled, with his widow, under § 2269 of the Revised Statutes, to the benefit of the patent obtained by her. That section is as follows:

"Where a party entitled to claim the benefits of the preemption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased preemptor, and a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned."

Neither of these grounds is well taken. No portion of the public domain, unless it be in special cases not affecting the general rule, is open to sale until it has been surveyed and an approved plat of the township embracing the land has been returned to the local land office. A settlement upon the public lands in advance of the public surveys is allowed to parties who in good faith intend, when the surveys are made and returned to the local land office, to apply for their purchase. If, within a specified time after the surveys, and the return of the township plat, the settler takes certain steps, that is, files a declaratory statement, such as is required when the surveys have preceded settlement, and performs certain other acts prescribed by law, he acquires for the first time a right of preemption to the land, that is, a right to purchase it in preference to others. Until then he has no estate in the land which he can devise by will, or which, in case of his death, will pass to his heirs at law. He has been permitted by the government to occupy a certain portion of the public lands and therefore is not a trespasser, on his statement that when the property is open to sale he intends to take the steps prescribed by law to purchase it; in which case he is to have the preference over others in purchasing, that is, the right to preëmpt it. The United States make no promise to sell him the land, nor do they enter into any contract with him upon the subject. They simply say to him-if you wish to settle upon a portion of the public lands, and purchase the title, you can occupy any

Opinion of the Court.

unsurveyed lands which are vacant and have not been reserved from sale; and, when the public surveys are made and returned, the land not having been in the meantime withdrawn from sale, you can acquire, by pursuing certain steps, the right to purchase them. If those steps are from any cause not taken, the proffer of the government has not been accepted, and a title in the occupant is not even initiated. The title to the land remains unaffected, and subject to the control and disposition of the government, as before his occupancy. This doctrine has been long established in this court. Thus in Frisbie v. Whitney, 9 Wall. 187, 193, where the subject was fully considered, it was held that occupation and improvement on the public lands, with a view to preëmption, did not confer a vested right in the land so occupied. Speaking of the settlement in that case, the court, by Mr. Justice Miller, said: "So far as anything done by him is to be considered, his claim rests solely upon his going upon the land and building and residing on it. There is nothing in the essential nature of these acts to confer a vested right, or, indeed, any kind of claim to land, and it is necessary to resort to the preëmption laws to make out any shadow of such right." The same doctrine was affirmed in The Yosemite Valley Case, 15 Wall. 77, the court observing that until all the preliminary steps to the acquisition of the title of the United States, prescribed by law, have been complied with, the settler has not acquired any title against the United States. Among these are the entry of the land at the appropriate land office and the payment of its price. "Until such payment and entry," the court added, "the acts of Congress give to the settler only a privilege of preëmption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event, in preference to others. The United States by those acts enter into no contract with the settler, and incur no obligation to any one that the land occupied by him shall ever be put up for sale. They simply declare that in case any of their lands are thrown open for sale, the privilege to purchase them in limited quantities, at fixed prices, shall be first given to parties who have settled upon and improved them." Nothing was

Opinion of the Court.

done in this case by the deceased occupant beyond his occupancy, and therefore nothing to initiate a title in him; not even the privilege of purchasing the land was acquired by him. His death occurred two years before the surveys were made and returned.

Section 2269 of the Revised Statutes, upon which the plaintiffs rely, has no application to the case presented by them. That section was taken from § 2 of the act of March 3d, 1843, 5 Stat. 620, "to authorize the investigation of alleged frauds under the preemption laws, and for other purposes." At that time no settlement on unsurveyed lands was permitted by the laws of the United States, and the second section was intended to secure to the heirs of the deceased preëmptor a claim to the benefit of the preëmption laws, which he had initiated, but not completed before his death, "by filing in due time all the papers essential to the establishment of the same." His executor or administrator, or one of his heirs, was in that event allowed to file such papers. No claim of the deceased in this case was lost by any failure to file the necessary papers. The time for any papers to be filed did not arrive during his life.

The contention of the plaintiffs in error is, that the section, upon a correct construction, extends to heirs of a deceased occupant of unsurveyed public land of the United States, who during his life did nothing beyond its occupation and improvement, the same rights which are conferred upon heirs of a person entitled at the time of his death to the benefits of the preëmption laws. It is upon the supposed denial of such rights to the plaintiffs by the court below that the jurisdiction of this court is invoked; it is upon that denial alone that the jurisdiction can be maintained. What we have said as to the legal effect of the deceased's occupation and improvement shows that no title was initiated or right of preemption created by them, and of course nothing was left by the deceased to be completed by his heirs, and hence there was no denial of any rights to them under the statute, as claimed. Judgment affirmed.

Statement of the Case.

BOTILLER v. DOMINGUEZ.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 1370. Submitted January 7, 1889. Decided April 1, 1889.

If an act of Congress is in conflict with a treaty of the United States with a Foreign Power, this court is bound to follow the statutory enactments of its own government.

No title to land in California, dependent upon Spanish or Mexican grants, can be of any validity, which has not been submitted to, and confirmed by, the board provided for that purpose under the act of March 3, 1851, 9 Stat. 631; or, if rejected by that board, confirmed by the District Court or by the Supreme Court of the United States.

THE case which raised the federal question was stated by the court in its opinion as follows:

This is a writ of error to the Supreme Court of the State of California.

The action was in the nature of ejectment, brought in the Superior Court of the county of Los Angeles by Dominga Dominguez against Brigido Botiller and others, to recover possession of a tract of land situated in said county, known as Rancho Las Virgenes. The title of the plaintiff was a grant, claimed to have been made by the government of Mexico to Nemecio Dominguez and Domingo Carrillo on the first day of October, 1834; but no claim under this grant had ever been presented for confirmation to the board of land commissioners appointed under the act of Congress of March 3, 1851, 9 Stat. 631, "to ascertain and settle the private land claims in the State of California," and no patent had ever issued from the United States to any one for the land or for any part of it.

It appeared that the defendants, Botiller and others, prior to the commencement of the action, had settled upon and severally were in the occupancy of the respective parcels or tracts of land claimed by them, and had improved and cultivated the same, and were in the possession thereof, with the pur

Argument for Defendant in Error.

pose and intention of holding and improving the several tracts of land so severally held, as preëmption or homestead settlers, claiming the same to be public lands of the United States. It was shown that they were competent and proper persons to make preëmptions or homestead claims, and that the land in controversy was within the territorial limits of the so-called Rancho Las Virgenes.

On this state of facts the judge of the inferior court instructed the jury as follows:

"First. It is made my duty to construe the written instruments received in evidence in this case and to declare their legal effect. I therefore instruct you that the documents, Plaintiff's Exhibits A and B, and the acts evidenced thereby under the Mexican law in force at the time they were made, constituted a perfect grant and operated to vest in the grantees therein named all the right, title and interest of the Mexican government. They vested as much title under the laws of Mexico in the grantee as does a patent from the United States to the patentee under our system of government.

"Second. The title to the land by grant from Mexico, being perfect at the time of the acquisition of California by the United States, the grantee was not compelled to submit the same for confirmation to the board of commissioners established by the act of Congress of March 3d, 1851, nor did the grantee, Nemecio Dominguez, forfeit the land described in the grant by a failure to present his claim for confirmation before said board of commissioners, and the title so acquired by the grantee may be asserted by him or his successor in interest in the courts of this country."

To this ruling and instruction the defendants excepted. Judgment was rendered for plaintiff, which was affirmed by the Supreme Court of the State of California, and to that judgment this writ of error is directed.

Mr. J. M. Gitchell for plaintiffs in error.

Mr. A. L. Rhodes for defendant in error.

The grant of the rancho constituted a perfect Mexican title, and was not required to be presented to the board of commis