El Nuevo mexicano., 1918-02-21

Appellee in his complaint allegeu
that he had failed to give the required
notice, hence had not received a con-
veyance from the probate court to the
lots in question, and that the lots were
embraced within the townsite patent
ed to the probate judge. Appellant de-
Tended upon the ground that his pre-
decessor in office did not receive a
patent to the land, of which the lots
in question were a portion. The court
after having heard the evidence en-
tered judgment, directing the probate
judge to execute to the appelle a deed
to the lots, in question. No findings
OF fact were made, from such judg-
ment the probate Judge ~prosecutes
this appeal.
Judgment Of the court below, re-
versed cause remanded with instruc-
lions to enter Judgment for appellant.
Syllabus by the Court.
/. BY act of July 20, 1864, 90 Stat.
at large 30S), section Is and 36 in
each township in the territory of New
Mexico, was reserved for the purpose
of being applied to schools in said ter
ritory. BY act of July 81, 1866, GA
Stat. at large 1922 congress provided
! for the Incorporation of the Atlantic
& Pacific railroad company, which
said corporation proposed to build q
railroad through the then territory Of
New Mexico. Section 2 of the act
gave to said railroad company q right
Of way through the public lands Of the
United States, Including all neces-
sary grounds for station buildings,
work shops, depots, switches" etc. On
July 10, 1891, (Stat. at large 718), an
act was passed for the relief of the
inhabitants of Gallup, New Mexico,
which said act authorized the probate
Judge of Bernalillo county, to enter in
trust for the occupants and inhabi-
tants Of said town, for townsite pur-
poses, the southwest quarter OF Sec
ition 16, township is north, range IS
west, subject to the provisions of Sec
lions 1887, 1888 and 1889 of chapter
g OF the revised statutes Of the United
Estates. Pursuant to this act the pro-
bate Judge of Bernalillo county, on
June IL, 1891, applied to enter said
land. Application vas made for the
full quarter section. The receiver is
sued Il said probate judge a final re-
ceipt which had noted thereon that it
was Subject to the station grounds
and right of way of the Atlantic &
Pacific railroad company, containing
27-72 acres Of land as shown by sur
vey map on file in this office" The
patent excepted such station grounds
| containing 27.72 acres from the opera
tion thereof. In 1884 the Atlantic &
! Pacific railroad company filed with
the secretary Of the interior a map
showing it's claim to said section
grounds.
Held ca that the relief act of July
Is, 1891, did not grant to the probate
judge Of Bernalillo county such quar-.
ter section of land, but simply author
lied him to enter the anne in trust
for the occupants and inhabitants of
the town Of Gallup for townsite pur-
poses; that such entry was subject to
the provisions Of the general townsite
law; that until such entry was made
permanent to the provisions Of such
law, the probate Judge of such county
took no title to the land;
(b) Under the provisions of Sec
| llOn 1000 IL. .. w., luG UlOUdlG JuuSc
was only authorized to enter land, the
title to which was in the United States
at the date of the application; that it
was incumbent upon the proper Off
GERS of he land department of the
United States, upon application being
made, to enter the lands for townsite
purposes, to determine whether or
not such lands were subject to entry,
and that such determination on the
part OF said OFFICER was Juuiciai IN
ac9 wben tba annlication was
made herein the officers of the land
department at Santa Fe determined
that the title to the right of way and
station grounds OF the Atlantic q "a
ol,S raaalu naa 1 Ma
us n 11ostnS Ctnts. 80