Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-05-11

ervation of any lands which may have
been sold or disposed of by the United
States. A survey of the whole tract has
been made, and the plat thereof has
been approved by the court, and certi-
fled to the secretary of the interior for
the issuance of patent. The present
proceeding is petition under the four
| teenth section of the act under which
| this court Is constituted for compensa-
ton for 2056.73 acres, which plaintiffs
lie land laws of the United States, and
for which patents had issued before the
suit for confirmation was instituted,
but which fact was then unknown to
them.
In one division Of the answer filed by
the government, it Is pleaded in effect
that by the failure to make any allega-
tion in their original petition Of the dis
position of lands now complained Of,
and by failing to serve the patentees
with copies of their petition. and by
taking judgment of confirmation Of the
whole tract, they have waived and
abandoned all claim for compensation
A demurrer to that portion of the an
swer was interposed by plaintiffs, which
raises the only questions we are now
called upon to consider.
| The position of counsel for the United
States is that no action for compensa-
ton for lands sold or disposed of by
the United States within a grant con-
| f1rned by this court can be maintained,
unless the fact of such sale or disposi-
tion was made to appear upon the trial
of the original petition, and the lands
so disposed of identified in the decree
of confirmation and excluded from It's
operation.
1t must be borne in mind that we are
| dealing with grant which was COM
plete and perfect at the date of the
treaty of cession; that is, the title and
ownership of the property were vested
absolutely in the grantees of the former
government. The claimants, therefore,
| were the owners of the property in
/ whole or in part. 1t needs neither argu-
| ment nor the citation of authorities to
establish that they could not be divest-
| the government in giving patents to 1t
to other parties. Claimants under
grants of that character are permitted,
but are not required, to file petitions in
| this court asking for the confirmation
of their title; the benefits which accrue
| to them upon confirmation are that
| their titles are adjudged to be complete
and perfect, their lands are segregated
by official survey. and they secure pat
ents therefor from the government. But
the act provides in the eighth section:
"If in any such case, title so claimed
to be perfect shall be established and
confirmed, such confirmation shall be
for so much land only as such perfect
title shall be found to cover, always ex-
cepting any part of such land that shall
have been disposed of by the United
| States" And in the four
teenth section: "That If In any case 1t
shall appear that the lands or any part
thereof decreed to any claimant under
the provisions of this act shall have
been sold or granted by the United
| States to any other person, such title
from the United States to such other
person shall remain valid. notwith-
standing such decree. :"
The first provision quoted contem-
plates doubtless that the lands disposed
of by the government within the grant
shall be excluded by the terms of the
decree of confirmation from it's opera
tion. But it is equally clear that by
the language of the fourteenth section
the same result was intended to be eff
fected, even though the decree should
be silent on the subject.
When a claimant under such grant
files his petition in this court for con-
consideration Of the benefits which will
accrue to him under decree of confir-
nation to be divested Of his title to all
lands which the government may have
disposed of within his grant, and to ac-
cept the compensation provided in the
act therefor and the effect Of the pro-
ceeding in this case was not only to d.
vest the claimant of all title to the
lands in question, but to establish and
confirm the title thereto In the pat.
entees under the government. And il
can make no difference at this tim'
that the patentees were never served
with copies Of claimants petition. Fo
! as they are not and could not be affect
ed by the judgment, they were not nee
essary parties to the proceeding.
Taking the allegations of the presen
petition as true, which at this stage o.
the proceedings must be done the fact:
which will entitle the claimants to {
money Judgment under the fourteenth
section of the act. now exist. Their tt
: tie Is adjudged to be perfect title, ant
quantity of land within the grant hat
; and they are divested of title to it b!
the proceedings and the statute. And 1
can make no difference that the decree
of confirmation is silent on the subject
for the right to the compensation grow
out of the facts that the lands were dis
posed of by the government, and tina
the former owners have been divestet
of the title to 1t, and these facts can b.
made to appear as readily in a proceed
ing subsequent to the decree of confir
=, nation as in the proceedings In whicl
r that decree was entered.
The court, under the statute, has jur
isdiction of the subject, and that juris
diction continues until the power con
ferred upon the court Is exercised.
An ordar will fharafora he anfara