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    SHAW v. KELLOGG, 170 U.S. 312 (1898)

    U.S. Supreme Court

    SHAW v. KELLOGG, 170 U.S. 312 (1898)

    170 U.S. 312

    No. 154.

    May 2, 1898. [170 U.S. 312, 313]   This was an action of ejectment brought in the circuit court of the United States for the district of Colorado on July 3, 1893, to recover possession of a certain tract in Saguache county, in the state of Colorado, described as follows:

      'Section twenty-two (22), township one (1) north, one (1) east, according to the plat of said Baca Grant No. 4, as filed and recorded in the office of the county clerk and recorder of said Saguache county, and including in said section twenty-two, certain mineral-bearing property, designated by the defendant as the 'Eastern Star Mine,' with other mining lands adjacent thereto within said section twenty-two.'

    After answer, a trial was had before a jury, which resulted in a verdict under instructions of the judge for defendant. Upon this verdict, judgment was entered, May 22, 1895. Thereupon the plaintiff sued out a writ of error from the circuit court of appeals for the Eighth circuit. On March 30, 1896, that court certified certain questions. Upon an examination of those questions, and after argument of counsel, this court, on December 22, 1897, ordered a certiorari to bring up the entire record, and upon such entire record the case was submitted for consideration.

    The premises in question are within the limits of the so-called 'Baca Grant No. 4.' The plaintiff is the owner of that grant, and the question presented is as to the validity and extent of his title. Prior to the treaty of Guadalupe Hidalgo between Mexico and the United States, of date February 2, 1848, by which New Mexico and other territory in the southwest was ceded to this government, Mexico had made some quite extensive grants of tracts of land within the territory ceded. Since then congress has provided for the several portions of the ceded territory different modes of determining the validity and extent of those grants. By the act of July 22, 1854 (10 Stat. 308), the office of surveyor general for the territory of New Mexico was created; and, by section 8, it was made his duty to examine into all claims for lands within the limits of that territory, and to make full report thereof to congress. In pursuance of this authority, the surveyor general examined and reported upon various claims, and [170 U.S. 312, 314]   on June 21, 1860 (12 Stat. 71), congress passed an act confirming several of them. There were two opposing claimants for a large tract of land in the vicinity of the town of Las Vegas. In settling the dispute between them, congress enacted, in section 6:

      'Sec. 6. And be it further enacted, that it shall be lawful for the heirs of Luis Maria Baca, who make claim to the said tract of land as is claimed by the town of Las Vegas, to select instead of the land claimed by them, an equal quantity of vacant land, not mineral, in the territory of New Mixico, to be located by them in square bodies, not exceeding five in number. And it shall be the duty of the surveyor general of New Mexico to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them: provided, however, that the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer.'

    On July 26, 1860, a letter of instructions was issued by the land department to the surveyor general of New Mexico in reference to these private land claims. In that letter, after directing a survey of the Las Vegas grant, and a determination of the area thereof, the instructions were as follows:

      'The exact area of the Las Vegas town tract having been thus ascertained, the right will accrue to the Baca claimants to select a quantity equal to the area of the town tract elsewhere in New Mexico of vacant land, not mineral, in square bodies not exceeding five in number.
      'You will furnish them with a certificate, transmitting at the same time a duplicate to this office, of their right and the area they are to select in five square parcels. Should they select in square forms according to the existing line of the public surveys, the matter may be properly disposed of by their application duly indorsed and signed with your certificate designating the parts selected by legal divisions or subdivisions, and so selected as to form five separate bodies in square form. Then the certificate thus indos ed is to be noted on the records of the register and receiver at Santa F e, and sent on here by those officers for approval. Should the Baca [170 U.S. 312, 315]   claimants select outside of the existing surveys, they must give such distinct descriptions and connection with natural objects in their applications to be filed in your office as will enable the deputy surveyor, when he may reach the vicinity of such selections in the regular progress of the surveys, to have the selections adjusted as near as may be to the lines of the public surveys, which may hereafter be established in the region of those selections.
      'In either case the final condition of the certificate to this office must be accompanied by a statement from yourself and register and receiver that the land is vacant, and not mineral.'

    The survey made of the grant to the town of Las Vegas showed an acreage of 496,446.96 acres, a certificate of which fact was given to the heirs of said Baca.

    On December 12, 1862, the following selection was filed with the surveyor general of New Mexico:

    John S. Watts,

    Prior to this time, the territory of Colorado had been organized, and a portion of the territory of New Mexico included within its boundaries, and the land described in this application was within the territory thus included in Colorado. The surveyor general of New Mexico, on the receint of this application, forwarded it to the land department at Washington, and also transmitted a copy to the surveyor general of Colorado. The surveyor general of Colorado, writing on February 24 1863, to the land department, informed it of the receipt of the copy above referred to, and at the close of his letter made this statement:

    In reply, the land department, on March 13, 1863, wrote as follows:

    During the year 1863, Ex-Governor Gilpin, who had become the owner, or at least interested in this location, made application to the surveyor general of Colorado for a survey of the tract. As the land was beyond the limits of the public surveys then completed, the surveyor general made a contract with Deputy Surveyor A. Z. Sheldon for its survey, and forwarded the same to the land department for approval. On November 2, 1863, that office wrote to the surveyor general disapproving of the contract, and adding:

    On December 12th the surveyor general wrote to the land office a letter containing this statement:

    He inclosed in it certificates of himself and the register and receiver of the local land office in the following language:

    To this letter the land office replied on January 16, 1864, stating:

    On February 12, 1864, the land office again wrote to the surveyor general the following letter:

    And, again, on February 26, 1864, the land office sent the following to the surveyor general:

    Thereupon the field notes of the survey assistants were duly filed in the surveyor assistants were duly in the surveyor general's office, and approved by him, his certificate of approval being in these words:

    In the general description accompanying the field notes is this statement by the deputy surveyor:

    The map of the survey was also filed and approved by the surveyor general. The following is a copy of the map, with his certificate of approval:

    On March 29, 1864, the surveyor general forwarded to the land office a transcript of the field notes and plat of the survey with his approval entered thereon, the receipt whereof was acknowledged by the land office in a letter of date May 4, 1864, which letter is as follows:

    These were all the proceedings had at the time in reference to the location, survey, and transfer of title of this grant.

    Subsequently, and on January 14, 1868, application was made for a patent, and declined by the land office in these words:

    Again, in March, 1879, a further application was made through the surveyor general of Colorado for a patent. This application was denied, and the commissioner of the general land office, in his letter declining to issue a patent, after reciting the history of the grant, stated:

    Subsequently, and on June 28, 1884, in response to inquiries as to whether prospectors would be allowed to hold any mineral discoveries made on said location, the land office replied as follows:

    And, again, on June 8, 1889, in response to a similar application, the acting commissioner replied as follows:

    In the annual report of the surveyor general of Colorado of the proceedings of his office, dated October 1, 1864, which was transmitted to congress in the report of the secretary of the interior for 1864, it is stated:

    And in the report of the commissioner of the general land office of the same year, and included in the same report to congress, it is also stated:

    In the same volume is found a map accompanying the report of the secretary of the interior, which shows Baca grant No. 4 segregated from the public domain, and it was admitted by counsel that all government maps issued from that time to this make a similar showing of the segregation of this tract.

    The plaintiff and those under whom he claims have been in continuous and actual possession of this Baca grant No. 4 since, [170 U.S. 312, 329]   at least, 1869. In 1881 a fence was built entirely around the tract, except for a little distance in the northeast corner, where the precipitous character of the mountains created a natural fence, and from that date onward to the present time it has remained under inclosure; and the plaintiff and his grantors have paid the annual taxes levied thereon by the state of Colorado, amounting, since the year 1877, to $66,000.

    In 1876 Francois Herard and two associates discovered a mineral vein, which they named the 'Eastern Star'; and on June 16th of that year filed a certificate of location in the proper office; but in 1877, upon ascertaining that this mineral location was within the limits of the Baca grant, they abandoned the mine. In 1879 the owners of the grant leased ths mine to one William Young, but he immediately thereafter threw up the lease. In 1883 the mine was again leased to the Gold Legion Mining & Milling Company, but this company soon abandoned the lease. In 1887 the defendant took a verbal lease from the manager of the grant for three months, at the expiration of which time be sought a renewal of the lease, but was refused. Subsequently to this refusal, he took possession of the property, and has remained in such possession ever since. And it is this mine, with the adjacent ground, the possession of which was sought to be recovered by this action.

    E. O. Wolcott and Joel F. Vaile, for plaintiff in error.

    John R. Smith, for defendant in error.

    Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

    In 1860, in settlement of a claim under a Mexican grant to land in the vicinity of Las Vegas, congress passed an act giving to the claimants an equal amount of land, to be by them selected elsewhere in the territory of New Mexico, stipulating that the land should be vacant and nonmineral, and should be located within three years in square bodies not exceeding five [170 U.S. 312, 330]   in number. Within the three years they selected and located the tract in question as one-fifth of the land to which they were thus entitled. They applied to the proper officers of the United States to take such steps as would perfect their title. More than 34 years ago the land department took its final action. Since then it has continuously treated the tract as private land, and refused to recognize it in any way as part of the public domain. Within the same year (1864) in which it took its final action, it reported the fact thereof to congress, and that body has never in any way questioned the rightfulness of the action taken. and now, at the end of this lapse of time, the title is challenged, and challenged upon propositions which, if sustained, establish that the owners have never had, and do not have, any certain title to a single foot of the land; and this although they have been in undisturbed possession all these years, and have paid taxes to the state authorities amounting to $66,000 at least, and probably more.

    The party who challenges the title of the plaintiff to the particular portion of the tract in controversy in this suit entered at first into possession of it as a tenant, and when, at the termination of his lease, he was refused a continuance thereof, took steps to maintain a possession, and assert a right adverse to his former landlord. It is undoubtedly true that settled rules of law cannot be ignored because, in any particular case, their application works apparent harshness. At the same time, the result to which the contentions of the defendant lead may well compel a careful examination of them.

    These contentions are that congress granted only nonmineral lands; that this particular tract is mineral land, and therefore, by the terms of the act, is not within the grant; that no patent has ever been issued, and therefore the legal title has never passed from the government; that the land department never adjudicated that this was nonmineral land, but, on the contrary, simply approved the location, subject to the conditions and provisions of the act of congress, thereby leaving the question of title to rest in perpetual abeyance upon possible future discoveries of minerals within the tract.

    In examining these contentions, it is well to consider first [170 U.S. 312, 331]   the act of congress of June 21, 1860, and the circumstances under which it was passed; for as said in Railroad Co. v. Barney, 113 U.S. 618, 625 , 5 S. Sup. Ct. 609, in reference to legislative grants, 'they are to receive such a construction as will carry out the intent of congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent, we must look to the condition of the country when the acts were passed, as well as to thep urpose declared on their face, and read all parts of them together.' This act was a final disposition by congress of certain claims under Mexican grants for lands situate in the territory of New Mexico. The circumstances and character of these claims had been reported to congress by the surveyor general of the territory. Some of them were confirmed as reported and in toto; and, as stated in Tameling v. Emigration Co., 93 U.S. 644 , Maxwell Land-Grant Case, 121 U.S. 325 , 7 Sup. Ct. 1015, and other cases, such confirmation operated as a grant de novo, and took effect at once as a relinquishment by congress of all rights of the United States to the premises. Others were confirmed in part and for only fractions of the areas claimed; and as to them, by section 2, it was made 'the duty of the surveyor general of New Mexico immediately to proceed to make the surveys and locations authorized and required by the terms of this section.' Another claim was not confirmed, but leave was given to the claimant to bring suit, with a proviso that, if the suit should not be instituted within two years, the claim should be presumed to have been abandoned; and, in respect to the claim before us, the right of location was to continue in force for three years, and no longer. Obviously, the thought was that these claims should not only be finally, but speedily, disposed of. It was not contemplated that the title should remain unsettled, a mere float for an indefinite time in the future.

    As the amount of the Las Vegas claim was large, and as the claimants were required to make their locations 'in square bodies, not exceeding five in number,' each location would necessarily be of a tract of considerable size; in fact, each one [170 U.S. 312, 332]   was nearly 100,000 acres. The tract thus located was, as a whole, to be nonmineral. No provision was made for indemnity lands in case mineral should be found in any section or quarter section. So that, when the location was perfected, the title passed to all the lands, or to none.

    It will also be perceived that congress did not permit this location to be made anywhere in the public domain, but only within the limits of the territory of New Mexico. It was not like a military land warrant, subject to location upon any public lands, but only a grant which could be made operative within certain prescribed and comparatively narrow limits,- limits not even so broad as those of the territory ceded by Mexico. There were then but few persons living in New Mexico. It contained large areas of arid lands. Its surface was broken by a few mountain chains, and crossed by a few streams. It was within the limits of this territory, whose condition and natural resources were but slightly known, that congress authorized this location. The grant was made in lieu of certain specific lands claimed by the Baca heirs in the vicinity of Las Vegas, and it was the purpose to permit the taking of a similar body of land anywhere within the limits of New Mexico. The grantees, the Baca heirs, were authorized to select this body of land. They were not at liberty to select lands already occupied by others. The lands must be vacant. Nor were they at liberty to select lands which were then known to contain mineral. Congress did not intend to grant any mines or mineral lands, but, with these exceptions, their right of selection was co-extensive with the limits of New Mexico. We say 'lands then known to contain mineral,' for it cannot be that congress intended that the grant should be rendered nugatory by any future discoveries of mineral. The selection was to be made within three years. The title was then to pass, and it would be an insult to the good faith of congress to suppose that it did not intend that the title, when it passed, should pass absolutely, and not contingently, upon subsequent discoveries. This is in accord with the general rule as to the transfer of title to the public lands of the United States. In cases of homestead, preemption, or townsite entries, [170 U.S. 312, 333]   the law exclue mineral lands; but it was never doubted that the title once passed was free from all conditions of subsequent discoveries of mineral. As was said in Deffeback v. Hawke, 115 U.S. 392, 404 , 6 S. Sup. Ct. 100, where this matter was considered:

    How was the character of the land to be determined, and by whom? The surveyor general of New Mexico was directed to make survey and location of the lands selected. Upon that particular officer was cast the specific duty of seeing that the lands selected were such as the Baca heirs were entitled to select. It is not strange that he was the one named; for, in the original act of 1854, which made provision for the examination of these various claims, the duty of such examination was cast upon the same officer, and he was there required 'to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico, and, for this purpose, may issue notices, summon witnesses, administer oaths, and do and perform all other necessary acts in the premises,' and it was upon his report that congress acted. Further, he was the officer who, by virtue of his duties, was most competent to examine and pass upon the question of the character of the lands selected. We do not mean that congress thereby created an independent tribunal outside of and apart from the [170 U.S. 312, 334]   general land department of the government. On the contrary, the act of 1854 provided that he should act under instructions from the secretary of the interior, and so undoubtedly, in proceeding to make survey and location as required by section 6 of the act of 1860, he was still subject to the control and direction of the land department; but, while he was not authorized by this section to act in defiance or independently of the land department, he was the particular officer charged with the duty of making survey and location, and it was for him to say, in the first instance at least, whether the lands so selected, and by him surveyed and located, were lands vacant and nonmineral. This is in accord with the views of the land department, as appears from the official letter of June 28, 1884, written in response to an application for the right to make mineral locations within the tract, in which the commissioner, after stating what had taken place, added: 'You will see by the foregoing that the land in question was determined, in 1864, by the surveyor general, whose province and duty it was, to be nonmineral. The location was then perfected, and the title passed.'

    It is also worthy of note that congress did not consider that there was any great probability of the discovery of mineral wealth in New Mexico. By the act of 1860 it confirmed various claims, amounting to millions of acres; confirmed them absolutely, and without any reservation of mines then known or to be thereafter discovered within their limits. And this, although under Spanish, if not under Mexican, law, all minerals were perpetually reserved from such grants. 1 Rock. Span. & Mex. Law of Mines, p. 49, 1-3; Id. pp. 112-114. It made no appropriation for the exploration of the claims to be thereaftr located, and, although it required the completion of this location within three years, it made but meager appropriation for surveys, the appropriation in 1860 for surveying both the public lands and private land claims in New Mexico being only $10, 000. 12 Stat. 108.

    It will also be perceived that the surveyor general, as well as the register and receiver of the land office, each certified [170 U.S. 312, 335]   that the land was nonmineral. These certificates were their decision to that effect. They were made in accordance with the original instructions sent out by the land department in July, 1860; and in this respect they were all that was required by those instructions, which were: 'In either case [that is, whether the selection is either within or outside the existing surveys] the final condition of the certificate to this office must be accompanied by a statement from yourself and the register and receiver that the land is vacant, and not mineral.' Thus, the proper officer decided that the land was nonmineral, and accompanied the report of the survey and location with all the certificates and statements required by the original instructions from the land department.

    But it is said that, the attention of the land department having been called to the fact that this location was made upon lands supposed to contain minerals, it was not satisfied with the requirements it had originally made; was not content with the certificates demanded of the surveyor general and the register and receiver, and expressly disapproved the evidence in fact furnished thereby; and also that, while it finally authorized an approval of the survey and location, it directed that the certificate of approval should contain the special reservations named in the statute,-that is, that the location should not embrace mineral lands. It is undoubtedly true that the suspicions of the land department were aroused by the report that was made as to the supposed character of the land embraced within this location, and that by its letter of January 16, 1864, it held that the evidence furnished as to the character of the land was not sufficient. This letter criticises the certificate of the surveyor general on the ground that, as appeared from the accompanying letter, it was based, not solely upon his personal knowledge, but upon 'information and conclusions deduced from reasoning.' It also notes the fact that the certificate of the register and receiver required by the instructions was wanting. There is a seeming confiict between the statements in this letter and the records of the surveyor general's office. The latter indicate that the certificate of the register and receiver was forwarded with the [170 U.S. 312, 336]   certificate of the surveyor general, while the letter of the commissioner says that the former was lacking. This apparent contradiction may arise from the fact that the certificate of the register and receiver was sent in a different inclosure, or perhaps it was overlooked by the commissioner of the land office. At any rate, it was about that time, at least, sent to the land department; for, as appears from the letter of February 26th, it was returned by that department to the surveyor general. Obviously, the land department, after sending the letter of January 16th, reconsidered its action. It had received the certificate of the register and receiver, and had before it all the certificates required by the original letter of instruction; and instead of continuing the suspension of an approval for further proof, as indicated by the letter, of January 16th, it wrote, on February 12th, to close the matter up, pointing out how all the difficulties which stood in the way could be removed. This letter notes the fact that by the statute it is made the duty of the surveyor general to make the survey and location. It contains no disapproval of the certificates or evidence furnished; authorizes him to approve the survey, although it directs that to his certificate of approval he 'add the special reservation stipulated by the statute, but no to embrace mineral lands.' It further notifies him that the statute does not provide for a patent, and that the law with the plat approved by him in the manner indicated will constitute the evidence of title. Thereupon the surveyor general proceeded to approve the survey, his certificate of approval being absolute and unconditional. He also approved the plat, though his certificate of approval to that was made as required by the letter of February 12th, 'subject to the conditions and provisions of section 6 of the act of congress approved June 21, 1860.' He also forwarded to the land department the field notes, the survey, and the plat with his certificates of approval attached, and they were received and filed by the department without objection. But one conclusion can be deduced from these proceedings, and that is that the land department, perceiving that its original instructions had been strictly complied with, that no money had been appropriated [170 U.S. 312, 337]   by congress for actual exploration of the lands, that no way was open for securing further evidence as to their character, that the time within which any other location could be made had passed, that it was the right of the locators to have the question settled and the title confirmed or rejected, ordered the closing of the matter, the passage of the title, and sought to protect the interests of the government and guard against any criticism of its action by directing an entry in the certificate of approval that it was made subject to the conditions and provisions of the act of congress.

    In this, three things are to be noticed: First. That the surveyor genral, the officer specially designated to make the survey and location, the one primarily charged with the duty of determining its character, decided that the land was nonmineral. His certificate to that effect is unqualified. His certificate of approval to the field notes and the survey is the saem. So far, therefore, as his action is concerned, there was an adjudication that the land was nonmineral. Second. The land department directed that the matter be closed, specified how it should be closed, and received and filed without question the report of the surveyor general's action. Third. The only qualification or limitation is found in the direction of the land department, followed by the action of the surveyor general in adding to his certificate of approval of the plat the proviso that it is 'subject to the conditions and provisions of section 6 of the act of congress of June 21, 1860.' There was no reservation of the matter for further consideration in the land department or by the surveyor general. There was a finality so far as they were concerned.

    What is the significance of and what effect can be given to the clause inserted in the certificate of approval of the plat that it was subject to the conditions and provisions of the act of congress? We are of opinion that the insertion of any such stipulation and limitation was beyond the power of the land department. Its duty was to decide, and not to decline to decide; to execute, and not to refuse to execute, the will of congress. It could not deal with the land as an owner, and prescribe the conditions upon which title might be transferred. [170 U.S. 312, 338]   It was agent and not principal. Congress had made a grant, authorized a selection within three years, and directed the surveyor general to make survey and location; and, within the general powers of the land department, it was its duty to see that such grant was carried into effect, and that a full title to the proper land was made. Undoubtedly, it could refuse to approve a location on the ground that the land was mineral. It was its duty to decide the question,-a duty which it could not avoid or evade. It could not say to the locator that it approved the location provided no mineral should ever thereafter be discovered, and disapproved it if mineral were discovered; in other words, that the locator must take the chances of future discovery of minerals. It a a question for its action, and its action at the time. The general statutes of congress in respect to homestead, pre-emption, and townsite locations provide that they shall be made upon lands that are nonmineral; and, in approving any such entry and issuing a patent therefor, could it be tolerated for a moment that the land department might limit the grant and qualify the title by a stipulation that, if thereafter mineral should be discovered, the title should fail? It cannot in that way avoid the responsibility of deciding and giving to the party seeking to make the entry a full title to the land, or else denying it altogether. As said in Deffeback v. Hawke, supra (page 406, 115 U. S., and page 101, 6 Sup. Ct.):

    Further, it must be noticed that the land department has since 1864 again and again decided that the action then taken was final; that the land had been segregated from the public domain, and become private property. Thus, so far as the judgment of the executive branch of the government is con- [170 U.S. 312, 339]   cerned, the finality of the action taken in passing the title has been settled. But we may go further. As appears by the report of the surveyor general and of the land department, transmitted to congress in 1864, the fact that this land had been finally appropriated to the claim of the Baca heirs was disclosed. Mention of that fact was also made in subsequent reports to that body, and yet from that time to the present congress has taken no action in the matter, and has thus, by its silence, confirmed the proceedings of the land department.

    Defendant relies largely on the decision of this court in Barden v. Railroad Co., 154 U.S. 288 , 14 Sup. Ct. 1030, in which it was held that lands identified by the filing of the map of definite location as within the scope of the grant made by congress to that company, although at the time of the filing of such map not known to contain any mineral, did not pass under the grant if, before the issue of the patent, mineral was discovered. But that case, properly considered, sustains rather the contentions of the plaintiff. It is true there was a division of opinion, but that division was only as to the time at which and the means by which the nonmineral character of the land was settled. The minority were of the opinion that the question was settled at the time of the filing of the map of definite location. The majority, relying on the language in the original act of 1864, making the grant, and also on the joint resolution of January 30, 1865, which expressly declared that such grant should not be 'construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States,' held that the question of mineral or nonmineral was open to consideration up to the time of issuing a patent. But there was no division of opinion as to the question that, when the legal title did pass,-and it passed unquestionably by the patent,- it passed free from the contingency of future discovery of minerals.

    Referring to the contention that, if the question of mineral was open for consideration until the issue of a patent, there would be great uncertainty in titles, the court said (pages 326, 327, 154 U. S., and page 1038, 14 Sup. Ct.):

    It quoted these words from the opinion in Smelting Co. v. Kemp, 104 U.S. 636 , 640:

    And added (pages 329, 330, 154 U. S., and page 1039, 14 Sup. Ct.):

    But, it is said, no patent was issued in this case, and therefore the holding in the Barden Case that the issue of a patent puts an end to all question does not apply here. But the significance of a patent is that it is evidence of the transfer of the legal title. There is no magic in the word 'patent,' or in the instrument which the word defines. By it the legal title passes, and when, by whatsoever instrument and in whatsoever manner, that is accomplished, the same result follows as though a formal patent were issued. Rutherford v. Greene's Heirs, 2 Wheat. 196, 206; Bryan v. Forsyth, 19 How. 334; Langdeau v. Hanes, 21 Wall. 521, 530, in which this court said: 'If the claim be to quantity, and not to a specific tract capable of identification, a segregation by survey will be required, and the confirmation will then immediately attach the title to the lands segregated.' The land passes out of the jurisdiction of the land department. The grant has then become complete, and the only remedy for any wrong in the transfer of such title is through the courts, and not in the land department. Lumber Co. v. Rust, 168 U.S. 589, 592 , 18 S. Sup. Ct. 208, and cases cited in the opinion. In this case the land department refused to isu e a patent; decided that it had no power to do so, and that the title was complete without one. It would seem strange to hold that the lack of a patent left the question of mineral an open one, when there was no authority for the issue of a patent, when it was in fact refused, and when the [170 U.S. 312, 342]   title passed the same as though a patent had issued. There was not at the time of these transactions, and has not since been, any statute specifically authorizing a patent for this land. Section 2447, Rev. St. ( taken from Acts 1854,-10 Stat. 599), applies only to the case of a claim to land 'which has heretofore been confirmed by law.' And the same may be said as to the special act of March 3, 1869. 15 Stat. 342. Here there had been no claim confirmed to any tract of land, but only the grant of a right to locate. In that respect it was like a land warrant, subject to location anywhere within the specified territory. As to land warrants, however, there is a specific provision for the issue of patents. Rev. St. 2423. The land department was therefore technically right when it said that the statute did not order the issue of a patent, and that the case was one in which the granting act with the approved survey and location made a full transfer of title. Very likely, if a patent had been issued, the courts would not have declared it void, but have sustained it as the customary instrument used by government to make a transfer of the legal title. Carter v. Ruddy, 166 U.S. 493 , 16 Sup. Ct. 640. But, as there was no statute in terms authorizing a patent, it was not within the power of the locators to compel the issue of one. No court would, by mandamus, order such issue in the absence of a specific and direct statute requiring it. So, when the department refused to issue one, the locators had no alternative but to accept that which the statute had provided as the means of acquiring and the evidence of title, and that must be treated as having all the efficacy of a patent.

    Summing up the whole matter, it results in this: Congress, in 1860, made a grant of a certain number of acres, authorized the grantees to select the land within three years anywhere in the territory of New Mexico, directed the surveyor general of that territory to make survey and location of the land selected, thus casting upon that officer the primary duty of deciding whether the land selected was such as the grantees might select. They selected this tract. Obeying the statute and the instructions issued by the land department, that officer approved the selection, and made the survey and loca- [170 U.S. 312, 343]   tion. The land department, at first suspending action, finally directed him to close up the matter, to approve the field notes, survey, and plat, and notified the parties through him that such field notes, survey, and plat, together with the act of congress, should constitute the evidence of title. All was done as directed. Congress made no provision for a patent, and the land department refused to issue one. All having been done that was prescribed by the statute, the title passed. The land department has repeatedly ruled that the action then taken was a finality. It has noted on all maps and in its reports that this tract had been segregated from the public domain, and become private property. It made report of this to congress, and that body has never questioned the validity of its action. The grantees entered into actual possession, and fenced the entire tract. They have paid the taxes levied by the state upon it as private property, amounting to, at least, $66,000. While the approval entered upon the plat by the surveyor general under the direction of the land department was in terms 'subject to the conditions and provisions of section 6 of the act of congress approved June 21, 1860,' such limitation was beyond the power of executive officers to impose.

    We are of opinion that at this late day the title of the locators and their grantees is not subject to challenge, and that it is a full, absolute, and uc onditional title. The judgment of the circuit court will therefore be reversed, and the case remanded for a new trial.

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