# Shaw v. Kellogg/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
170 U.S. 312
Shaw v. Kellogg
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 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 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 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 the purpose 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 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, 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 Sup. Ct. 100, where this matter was considered:
'We also say lands 'known' at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterwards, rich deposits of mineral may be discovered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler, and patented by the government under the pre-emption laws, may be found, years after the patent has been issued, to contain valuable minerals. Indeed, this has often happened. We therefore use the term 'known' to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued.' See, also, Colorado Coal & Iron Co. v. U.S., 123 U.S. 307, 8 Sup. Ct. 131.
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 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 thereafter 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 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 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 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. 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.):
'The position that the patent to the plaintiff should have contained a reservation excluding from its operation all buildings and improvements not belonging to him, and all rights necessary or proper to the possession and enjoyment of the same, has no support in any legislation of congress. The land officers, who are merely agents of the law, had no authority to insert in the patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed.'
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 concerned, 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.):
'We do not think that any apprehension of disturbance in titles from the views we assert need arise. The law places under the supervision of the interior department and its subordinate officers, acting under its direction, the control of all mattes affecting the disposition of public lands of the United States, and the adjustment of private claims to them under the legislation of congress. It can hear contestants, and decide upon the respective merits of their claims. It can investigate and settle the contentions of all persons with respect to such claims. It can hear evidence upon and determine the character of lands to which different parties assert a right; and, when the controversy before it is fully considered and ended, it can issue to the rightful claimant the patent provided by law, specifying that the lands are of the character for which a patent is authorized.'
It quoted these words from the opinion in Smelting Co. v. Kemp, 104 U.S. 636, 640:
'The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and, as they can lawfully be performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands, under the law, is intrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law.'
And added (pages 329, 330, 154 U.S., and page 1039, 14 Sup. Ct.):
'There are undoubtedly many cases arising before the land department in the disposition of the public lands where it will be a matter of much difficulty on the part of its officers to ascertain with accuracy whether the lands to be disposed of are to be deemed mineral lands or agricultural lands; and in such cases the rule adopted that they will be considered mineral or agricultural, as they are more valuable in the one class or the other, may be sound. The officers will be governed by the knowledge of the lands obtained at the time as to their real character. The determination of the fact by those officers that they are one or the other will be considered as conclusive. * * *
'It is true that the patent has been issued in many instances without the investigation and consideration which the public interest requires; but if that has been done without fraud, though unadvisedly by officers of the government charged with the duty of supervising and attending to the preparation and lssue of such patents, the consequence must be borne by the government until, by further legislation, a stricter regard to their duties in that respect can be enforced upon them. The fact remains that, under the law, the duty of determining the character of the lands granted by congress, and stating it in instruments transferring the title of the government to the grantees, reposes in officers of the land department.'
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 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 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 location. 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 unconditional title. The judgment of the circuit court will therefore be reversed, and the case remanded for a new trial.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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