Mr. Assistant Attorney General West and Mr. C. Edward Wright for appellants.

Mr. Herbert Noble, Mr. G. H. Brevillier and Mr. Joseph W. Bailey, with whom Mr. James W. Vroom was on the brief, for appellees.

By leave of court Mr. William C. Prentiss filed a brief as amicus curiæ.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Appeal from the decree of the Court of Appeals of the District of Columbia affirming a decree of the Supreme Court of the District enjoining the Secretary of the Interior and the Commissioner of the General Land Office from proceeding in the matter of certain attempted entries under the public land laws of the United States upon lands which the decree finds were selected and located by the heirs of Luis Maria Cabeza de Baca on June 17, 1863, and known as Baca Float No. 3, the title to which, the decree further finds, passed out of the United States and vested in said heirs on April 9, 1864. The decree further directs the filing of the field notes and plats of survey of the Float for the purpose of defining the out-boundaries thereof and segregating the same from the public lands of the United States.

The origin and history of the Baca grant are set out in Shaw v. Kellogg, 170 U. S. 312, Maese v. Herman, 183 U. S. 572, and Priest v. Las Vegas, 232 U. S. 604.

It appears that there was a conflict between this grant and the grant to the town of Las Vegas, which was settled by an act passed on June 21, 1860 (12 Stat. 71, 72, c. 167), which enabled the heirs of Baca to select "an equal quantity of vacant land, not mineral, in the Territory of New Mexico, to be located by them in square bodies, not ex

ceeding five in number." It was made 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 the act, and no longer."

The Las Vegas grant was ascertained to contain nearly 500,000 acres (496,446 96-100). The Baca heirs were, therefore, entitled to locate that many acres "in square bodies, not exceeding five in number." This controversy concerns the third of the bodies selected. The selection of each tract was to be determined by the same considerations, and those considerations are declared in Shaw v. Kellogg, supra. Each location, it is there said, would necessarily be of considerable size; in fact, each one was nearly 100,000 acres; and each as a whole was 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." (170 U. S., p. 332.) The limits of location, it was said, was the Territory of New Mexico, limits not so broad as those of the territory ceded by Mexico; within the limits there were large areas of arid lands; "its surface was broken by a few mountain chains, and crossed by a few streams." Lands, it was declared, could not be selected already occupied by others. The lands must be vacant. Nor could lands be selected "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 coextensive 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." And it was declared that the surveyor general of New Mexico was to determine the character of the lands; he was to make survey and location of the lands selected; upon him "was cast the specific duty of seeing that the lands selected were such as the Baca heirs were entitled to select." This is emphasized by saying that "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" (p. 333). In the survey and location it was recognized that he was subject to the "control and direction of the Land Department," and, while he was not to act in defiance and independently of the Land Department, "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 non-mineral" (p. 334).

These are the elements of the decision. How do they apply to the case at bar?

First, as to the allegations of the bill. There are detailed allegations of the origin of the grant to Baca, its presentation to the surveyor general of New Mexico under the then existing law and regulations and his recommendation of its confirmation, also of the confirmation of the grant to the town of Las Vegas, "leaving," as he said, "the respective claimants the right to adjust their conflicting claims in courts." The other facts which the bill alleges we set out in narrative form as follows:

Both grants were confirmed and the right given to the heirs of Baca, as we have seen, to select other lands equal in quantity to the lands claimed by Las Vegas.

On July 26, 1860, about a month after the act was passed, the Commissioner of the General Land Office informed the surveyor general of New Mexico that it was

the latter's duty to separate from the public lands the pueblos or individual confirmed claims, and in that connection drew his special attention to the act of June 21, 1860, which referred to the "claim of the Heirs of Luis Maria Baca," and in order to give the act timely effect the surveyor general was directed to give the claim priority in surveying private land claims. That officer was directed to have the exterior lines of Las Vegas run off, and, this being done, the right would accrue to the Baca claimants to select a quantity equal to the area elsewhere in New Mexico of vacant lands, not mineral, in square bodies, not exceeding five in number. The instructions then proceed as follows:

"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 bodies according to the existing line of the surveys, the matter may be properly disposed of by their application duly endorsed 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 endorsed is to be noted on the records of the Register and Receiver of Santa Fe and sent on here by those officers for approval. Should the Baca 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 conditions 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."

VOL. CCXXXIV-34

The grant to the town of Las Vegas was surveyed and the fact communicated by the surveyor general to the representative of the heirs of Baca and they were informed that they were entitled to select an equal quantity of land, that he was authorized to survey and locate the same and that his office was ready to cooperate with their legal representative "and receive his application for the location of the lands granted by the Government."

Thereupon, on or about June 17, 1863, in pursuance of the notice from the surveyor general and the act of Congress, the following was addressed to the surveyor general:

"I, John S. Watts, the attorney of the heirs of Don Luis Maria Cabeza de Baca, have this day selected as one of the five locations confirmed to said heirs under the 6th section of the act of Congress approved June 21st, 1860, the following tract, to-wit.-Commencing at a point one mile and a half from the base of the Solero Mountain in a direction north forty-five degrees east of the highest point of said mountain, running thence from said beginning point west twelve miles thirty-six chains and forty-four links, thence south twelve miles thirty-six chains and forty-four links, thence east twelve miles thirty-six chains and forty-four links, thence north twelve miles thirty-six chains and forty-four links, to the place of beginning, the same being situate in that portion of New Mexico now included by act of Congress approved February 24, 1863, in the Territory of Arizona, said tract of land is entirely vacant, unclaimed by anyone, and is not mineral to my knowledge.

"JOHN S. WATTS,

66 Attorney for the Heirs of Luis Maria Cabeza de Baca."

On the same day the surveyor general certified to the Commissioner of the General Land Office the fact of the application, repeating it, and concluding as follows: