(concurring.) On the twelfth day of February, 1844, Jose Serafín Ramirez petitioned the governor of‘New Mexico for the grant of a tract of land known as the “Canon del Agua,” near the placer of San Francisco called the “Placer del Tuerto,” and distant from the town about one league, and further described and bounded as follows: “On the north, the road leading from the Placer to the Palo Amarillo; on the south, the northern boundary of the San Pedro grant; on the east, the spring of the Canon del Agua; on the west, the summit of the mountain known as ‘My Own.’ ” Santiago Flores, first justice, etc., certified that he had, according to the decree of Gov. Martinez, put Ramirez in juridical possession of the land known as the “Canon del Agua,” in the placer of San Francisco, with the boundaries set forth in the petition as follows: “On the north, the road of the Palo Amarillo; on the south, the boundary of the Rancho San Pedro; on the east, the spring of the Canon del Agua; on the west, the highest summit of the little mountain of El Tuerto, adjoining the boundary of the mine known as inherited property;” dated February 15, 1844.
In 1859, Ramirez filed in the office of William Pelham, surveyor general of New Mexico, notice of his claim to the Canon del Agua grant, in which he says that the quantity of the land he claims is “5,000 varas square, making one Castilian league, and bounded on the north by the Placer road that goes down to the yellow timber; on the south, the north boundary of the San Pedro grant; on the east, the spring of the Canon del Agua grant; on the west, the summit of the mountain of the mine known as the property of your petitioner,” — reciting that his claim did not conflict with any other lands granted by the governments of Spam and Mexico. The adjudication of this claim before Surveyor General Pelham seems to have been formal and regular in all its parts. The case is entitled “ Ser aftn Ramirez vs. United States.” In the entry of the proceedings it is recited that the ease was set for trial on the tenth day of January, 1860; that the witnesses were present, and duly sworn, and their evidence recorded, and, continuing the recitals, the entry sets forth Ramirez’s derivation of title to the land, viz.: that on the twelfth day of February, 1844, Ramirez petitioned Mariano Martinez, the political and military governor of New Mexico, for a tract of land known as the “Canon del Agua,” situated in the county of Bernalillo, with the boundaries therein set forth; that on the thirteenth day of February, of the same year, the grant was confirmed to him by the departmental assembly of the province of New Mexico, and possession given on the fifteenth day of February by Santiago Flores, justice of the peace, and further stating that Ramirez had filed with the papers in the case a grant made to his great-grandfather, of which himself and his brothers were declared by the assembly granting the land to him to be the proper legal heirs; but goes on to i.eclare that, as no authority was vested in the surveyor to adjudicate upon claims to mines within the territory, no action was taken in the premises, and then proceeds as follows; “The grant to the land situated at the Canon del Agua is made according to the laws in existence at the time it was made, and has been proven to have been in quiet and undisturbed possession of the applicant from that date up to the present time, and is fully covered by the treaty of Guadalupe Hidalgo of 1848. It is therefore approved, and respectfully transmitted for tbe action of congress in the premises.” Dated SantaFe, N. M., January 20,1860. Signed, William Pelham, surveyor general. On January 11,1861, the above report was transmitted to congress, and on June 12, 1866, congress confirmed the grant to Ramirez of the Canon del Agua, as approved by Surveyor General Pelham. This was not a floating claim to land that might be removed from one locality to another at the pleasure of the holder, but it was a claim to a particular tract of land with fixed boundaries, and known as the “Canon del Agua Grant,” about one league from the town of San Francisco. From the inception of the grant in 1844 to its confirmation by congress in 1866, as approved by Pelham, no change was made in the boundaries, nor were the calls for course and distance brought into question by Ramirez during his long residence of 20 years or more on the land. It is understood that the town of San Francisco is sometimes called the “Placer,” or “Plaza,” or the “Placer del Tuerto,” and that Palo Amarillo, or the “Yellow Timber,” is the same place throughout. The southern boundary of the Canon del Agua grant is the northern boundary of the San Pedro grant, or Rancho San Pedro; and without exception, and in the same language, the Canon del Agua grant is bounded on the east “by the spring of the Canon del Agua. The boundary on the west is the summit of the mountain known as * My Own,’ or the highest summit of the little mountain of El Tuerto, adjoining the boundary"of the mine know as inherited property, or the mountain of the mine known as the property of your petitioner.”
It is contended by Ramirez that the mine called the “Big Copper Mine” is the one claimed by him as inherited property from his great-grandfather, Diaz ■de Moradilios. It appears from Exhibit B, attached to the complainant’s bill, that on April 12, 1846, formal registry was made of a mine described as situated in the Plaeerdel Tuerto by Mariano Yarela and Luis Aguilar, called the “Nuestra Señora de los Dolores.” It further appears from Exhibit P, filed with defendant’s evidence, that the mine applied for by Jose Caceldo Lopez de Yiera, as attorney of Don Francisco Diaz Moradilios, was the “Santo Tomas de Yillanueva Lode,” in the Tuerto mountains, about eight leagues from Las Muertas, and which counsel for defendant contends, in his brief, would locate it about where the Big copper mine is situated. The description given of these mines shows that they cannot be the same mines. The vein of the Nuestra’ Señora de los Dolores, registered by Yarela, or Barela, and Aguilar in April, 1846, is described as running from north to south; the vein of the Tomas de Yillanueva mine is described as running from east to west. The claim of Jose Serafín Ramirez to this mine by inheritance from his grandfather, Moradilios, is denied by his brother, Melquíades Ramirez, who testified, as a witness in the case, that he never knew of any grandfather or great-grandfather by the name of Don Francisco Diaz de Moradilios. This witness proved that he knew Mariano Barela and Antonio Jaequez in 1846, and said that they and their associates worked a mine which lies south-east from the town of San Francisco, and about one and a half miles from that town. That the mountain in which this mine is situated is called by different names. It was called “LaSierrittadel Tuerto,” “La Sierra de Bonanza,” or “La Sierra del Placer.” Ramirez further testified that in 1853 or 1854 he and his brother worked this mine, claiming it by denouncement as an abandoned mine, and said that he never heard his brother make any other claim to it; that they worked it from 1853 or 1854 to 1863; that it was called “the Big Copper Mine;” and that it is the same that was worked by Mariano Barela and Aguilar and their associates in 1846. This witness further stated that this mine was never claimed by him as belonging to any grandfather or great-grandfather in his family. He denies that he made the oath or statement purporting to be made by him and his brothers, Jose Sera fin and Serto to the effect that they declared that Francisco Diaz de Moradillos was their grandfather; that he (witness) never signed it; and that his brother Serto could not write. Witness Antonio Jacquez identified the Big Coppermine as the same mine that he and his associates, Barela and Aguilar, worked in 1846, and that they continued to work it until the forces of the United States came into New Mexico. It is alleged in complainants’ bill that the land described in the survey includes valuable gold, silver, and copper, and other ores, and which the defendant in its answer admits, but claims the land, with its mines, under the grant from Mexico and the patent from the United States.
By the laws of Spain and Mexico, farming, stock-raising, and mining were different branches of industry. A distinction was also made between lands suitable for farming or planting, on account of the facility for irrigation, and lands proper for stock-raising. Mines were reserved to the crown or the government, and did not pass with the grant of the land unless mentioned in the grant, or unless by prescription. Rock. Sp. & Mex. Law, c. 5, pp. 49, 50, § 4; Id. pp. 165, 166, 172, 174, §§5, 6; Id. p. 176. Also, Hall, Mex. Law, pp. 356, 511, § 1668; Id. p. 104, § 263; Id. p. 123, § 364. See report of Hon. Tlios. Ewing, secretary of the interior, 1849, in Rock. Sp. & Mex. Law, 410. Also, 1 Bl. Comm. 274, as shown by Rockwell, 514; “Forfeiture or Renouncement of Mines,” Rock. 313; Id. § 11, p. 320; and Hall, p. 376, §§ 1288-1290, etc. The mines were disposed of according to such ordinances and regulations as might be from time to time adopted. Rock. pp. 49, 50, 410, 411. Also, Hall, p. 356. Lands were classified for distribution, and in order to fix the different values. Similar provisions are found in the laws of the United States. Rev. St. § 2325. This was a matter of revenue to the government in all such cases. Hall, Mex. Law, p. 79, '§ 203; Id. p. 80, § 208; and Id. c. 23, p. 98. The statutes asserting paramount title in the United States to mineral lands are in harmony with the laws and practice of other countries on the same subject. It is known to be the practice of this government in the grant of lands to the states, and to corporations to aid in the construction of railroads, and for other purposes, not to include mineral lands, but such lands are reserved to the United States, unless it is otherwise provided in the act making the grant. Rev. St. U. S. c. 6, tit. “Mineral Lands and Mining Resources,” p. 430, § 2346. Mineral lands are also reserved from entry and settlement by the pre-emption and homestead statutes, but open to purchase by citizens of the United States. Rev. St. U. S. §§ 2258, 2302, 2318. A claim for mineral lands must be accurately described by reference to natural objects or permanent monuments, and the description must be incorporated in the patent. Id. § 2325. Under the laws of Spain and Mexico, the surveys of the public lands were made in squares, noting streams of water and lakes, pools, mountains, mineral regions, salt regions, climate of the locality, the character of the soil, and everything else which might give an idea of the improvement of which they might be susceptible. Hall, Alex. Law, p. 122, §§ 354, 357; Id. p. 72, § 173. The statutes of the United States contain substantially the same provisions. Rev. St. tit. “Survey of the Public Lauds,” § 2395, and subds. 7, 8.
Rights acquired before the treaty of Guadalupe Hidalgo were recognized by our government, and provision has been made to ascertain and protect those rights, and also to protect the rights of the government under the treaty. For that purpose congress on the twenty-second day of July, 1854, passed the act to establish the offices of surveyor general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers, and for other purposes. By section 8 of this act, it was made the duty of the surveyor general, under instructions of the secretary of the interior, to ascertain the origin, nature, character, and extent of all claims to land under the usages and customs of Spain and Mexico, and report on the claims that originated before the cession of the territory to the United States by the treaty of 1848, denoting the various grades of title, with his decision as to the validity or invalidity of the same under the laws, usages, and customs of the country before its cession to the United States. 10 St. at Large, p. 308. This report was necessary for the intelligent action of congress, by furnishing what was intended to be reliable information, with a view to confirm bona fide grants, and to give full effect to the treaty between the United States and Mexico. Lands covered by these claims were reserved from sale, and donations granted by the statute, until congress acted on the said claims; that being the last or final action on the claims, and so called to distinguish it from the previous action of the surveyor general and officers of the land department of the government. The donations above referred to were lands granted to actual settlers, but not extended to lands covered by bona fide grants before the treaty with Mexico, and not extending to mineral and other lands reserved from settlement. 10 U. S. St. at Large, 309. In Moore v. Robbins, 96 U. S. 530, the court says: “The decisions of the officers of the land department, made within the scope of their authority, on questions of this kind, [a contest between a purchaser ata'public sale by the officers of a land-district, and another who set up a prior preemption right,] is in general conclusive everywhere, except when reconsidered by way of appeal within that department; and that, as the faetón which their decision is based, in the absence of fraud or mistake, that decision is conclusive, even in courts of justice, when the title afterward comes in question ; but that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, and to relieve against frauds and impositions.” In Shepley v. Cowan, 91 U. S. 340, the court said: “If they [the officers of the land department] err in the construction of the law applicable to any case, or if fraud is practiced upon them, or if they themselves are chargeable with fraudulent practices, their rulings may be reversed or annulled by the courts.”
The land department directs the administration of the land laws generally, and especially it has full power and authority to issue all needful rules and regulations for fully carrying into effect the provisions of the act of July 22, 1854. Under authority of this act, the commissioner of the general land-office, on August 21, 1854, instructed the surveyor general of New Mexico to collect information from authentic sources in reference to the laws of the country as to minerals, and ascertain what conditions were attached to grants of land embracing mines, whether absolute or not, and in every case to ascertain from the parties, and to require testimony, as to whether the tracts claimed were mineral or agricultural, and to make the necessary discrimination in hiS proceedings. Instructions to Surveyor General Pelham, August 21, 1854. As before stated, Pelham declined to adjudicate upon claims to mines, for want of authority, as he says. The survey made by Deputy-Surveyor Griffin includes a body of land of more than ordinary value. In his description of this land he says it includes the greater part of theSierrittadel Tuerto mountains; that the cultivable part of the land is of excellent quality, with considerable pine timber suitable for lumber, with abundant timber and fuel for ordinary purposes, and good grass on almost every part of the grant. .There is abundant water at the Tuerto. The Sierrittadel Tuerto is rich in the precious metals, particularly in gold and copper. Neither the act of congress confirming the grant to Ramirez, as approved by Surveyor General Pelham, nor the patent from the United States to Ramirez, contains the above description of this land. Surveyor General Pelham approved the grant to Ramirez for the land situated at the Canon del Agua, and transmitted his approval for the action of congress, and congress confirmed the grant to Ramirez as approved by Pelham, surveyor general of the territory, as above mentioned.
It is admitted by the defendant in its answer, and shown by Deputy-Surveyor Griffin in his report accompanying his survey, that he disregarded the call for course and distance, and was governed by landmarks and natural objects in making his survey. The principle that landmarks and natural objects will control the calls for course and distance when inconsistent must be understood in a reasonable sense; the intention being to establish the grant if it can be done by any of the calls, and not to defeat it by rejecting all of the calls. In defense of the survey made by Griffin, it is contended by counsel for the defendant that the mine claimed by Ramirez, and the mountain given as the western boundary of the Canon del Agua grant, lie entirely eastward of the Canon del Agua springs, instead of west, as claimed by the complainant, and that there was a mistake in the calls of the boundaries of the grant, and that the natural objects did not lie in the exact position as called for by Ramirez in his petition for the grant, and the act of juridical possession. Though the evidence is in some respects conflicting, it appears with reasonable certainty that there is a mountain to the west called the “Little Tuerto, ” answering to the call for the western boundary of the Canon del Agua grant. With this mountain to control the call of the survey of the western boundary of the grant, and the'Canon del Agua spring to control the survey of the eastern boundary, it is evident that so much of the survey made by Griffin as lies east of a line drawn due north and south, passing through the spring, is improperly included within the boundaries of the Canon del Agua grant as approved by Surveyor General Pelham, and confirmed by congress.
The principle is well settled that the United States has the same remedy in equity to set aside a patent obtained by fraud that an individual has to set aside his deed obtained by fraud. It is true, the decisions referred to were rendered in cases arising out of the homestead and pre-emption laws; but the same principle would seem to be applicable to patents issued on the confirmation of Spanish and Mexican grants obtained under like circumstances. In California the ádjudication of land titles was not the same as in this territory. The decisions of the land department can only bind adverse claimants with notice or parties claiming under them. That there were adverse claimants to the land included in the survey and in the patent to Ramirez was after-wards shown by a petition signed by a great number of citizens, and addressed to the secretary of the interior, asking that legal proceedings be instituted in the name of the United States for the purpose of vacating the patent to Ramirez. The grounds for this request were: (1) That the survey as patented included the tract of land on which was situated the town of San Francisco, and which, as they state, was in existence at the date of the treaty by which New Mexico was acquired by the United States. They further state that though there was no direct grant from the Mexican government to the town, yet, as it was settled in accordance with the laws, customs, and usages of Spain and Mexico, it acquired all the rights, privileges, and immunities that pertain and belong to a Spanish or Mexican town, which was the right to the commons adjoining the town for the distance of one league in each direction from the center of the main square or plaza of the town, for the use and benefit of its inhabitants. (2) That the survey is erroneous, in that it includes a large tract of land not within the boundaries of the grant as confirmed, and wliieh is public domain. The inhabitants of the town of San Francisco were engaged in commercial pursuits, and the town was a place of some importance long before the cession of the country to the United States. One witness testified that the population of the town was not less than 1,000; the names of many of the prominent merchants living there at that time are given; there was a chapel for divine worship; lots of ground for building and residence were acquired on application to the alcalde, as seems to have been usual at the time in other towns of the country. Tr. pp. 140, 141, 160, 162.
The act of July 22,1854, made it the duty of the surveyor general to report all pueblos in the territory, showing the extent and locality of each, the number of inhabitants, and the nature of their titles to-the land. 10 U. S. St. at Large, pp. 308, 309. The supreme court of California, in Welch v. Sullivan, 8 Cal. 165, 187, said: .“Each pueblo was entitled in property to certain tracts of land within the limits of the town, to be set apart by them, called ‘ commons,’ « pasture grounds,’ and ‘ municipal lands,’ by virtue of their organization as pueblos. ” To the same effect is the decision of the supreme court of the United States in Townsend v. Greeley, 5 Wall. 326, 337, and Grisar v. McDowell, 6 Wall. 363. It is further held that these rights were not divested by the treaty of Guadalupe Hidalgo. Mr. Hall, in his treatise on the laws of Mexico, contends that the courts erred in holding that four square leagues of land was the quantity assigned to a town, but says that the quantity was in the discretion of the viceroys and governors. Chapter 7, tit. “Pueblos or Towns,” § 118, etc.
It may be doubted whether the survey made by Griffin ever had the delibérate sanction of the officers of the land department. Commissioner Burdett at first refused to approve the survey, because of the manifest difference between the calls for boundaries contained in the original title papers and their location by Griffin. Commissioner McFarland became satisfied that the land-■office erred in deciding that the survey conformed to the boundaries of the .grant as confirmed by congress, its action being based on testimony entirely ex parte in character; and he proceeds to show that the survey locates the road on the north-west, when, according to the grant, it should be north; and the spring on the south, when it should be on the east; and the San Pedro grant on the west, when it should be on the south, — the remaining boundary, according to the grant or juridical possession, being “the highest summit of the little mountain of El Tuerto, joining the boundary of the mine known as «Inherited Property,’” which was on the west. Commissioner Burdett finally approved the survey, but he did so, as shown by Commissioner McFarland, •on testimony ex parte. The above statement was made by Commissioner McFarland after the patent was issued, when the land department had no control over the title; and his statement is referred to as showing his reasons for recommending suit to vacate the patent, and which appear to be well founded. Mr. Griffin admits that the survey was not made in accordance with what he regards as the correct rule of surveying, but he said it was made under in■structions of the surveyor general.
This is not a suit asserting a claim to lands reserved from sale or donation under the treaty between the United States and Mexico, but is a suit to vacate the patent based on the survey made by Griffin, and which includes other and different lands from the lands granted to Bamirez as approved by Surveyor General Pelham, and approved by congress. But it is contended by counsel for defendant, in their brief, that a patent issued by proper authority raises the presumption that all prequisites have been complied with. This, like all presumptions, is not conclusive in all cases. Fraud or mistake in obtaining a patent is recognized as an exception to the rule. Moore v. Robbins, 96 U. S. 530; Hughes v. U. S., 4 Wall. 232. But the defendant is not in a position .to deny the right of the complainant to redress while said defendant is claiming the benefit of a mistake, as alleged, in the boundaries of the grant to Ramirez.
Another ground of defense set up in the answer of defendant is that said defendant purchased the land in good faith, and without notice of any fraud. The defendant was affected with notice of Ramirez’s title, under which said defendant claims by the boundaries set forth in his grant, and the accompanying title papers, and by Pelham’s approval of the grant according to said boundaries, and by its confirmation by congress, and by the recitals in the patent from the United States to Ramirez. The defendant was also charged with notice that mineral lands did not pass under a grant for agricultural or pastural or grazing lands. The chain of title under which defendant claims shows that the land contained mines and valuable ores. The United States is bound, under the treaty with Mexico, to protect the inhabitants of the town of San Francisco in the enjoyment of the commons and pasture lands belonging to the town; of which treaty, and the laws regulating land grants, the defendant, and the parties it claimed under, were charged with notice. If it could be shown that these proceedings did not give full notice, they were sufficient to put the defendant and its agents on inquiry, and to charge them with knowing all that they might have known by further investigation; besides, the patent protects the rights of adverse claimants.
It is not necessary in the case to invoke the rule that neither laches nor limitation is applied to the government. The rule as applied to individuals will protect the government. The facts were brought to the notice of the attorney general in August, 1881, and the suit was filed in the clerk’s office in September following. The petition of the citizens to the secretary of the interior, and the correspondence between the government officials, seem to have led to the investigation that follows, and to the discovery of the fraud. The' suit was brought in a reasonable time after notice of the fraud. Meader v. Norton, 11 Wall. 458; U. S. v. Minor, 114 U. S. 238, 5 Sup. Ct. Rep. 836; Moore v. Robbins, 96 U. S. 530.
The suit was properly brought in the name of the attorney general, in behalf of the United States; so far, at least, as the government is interested in the property as vacant land. Mowry v. Whitney, 14 Wall. 439; U. S. v. Minor, 114 U. S. 238, 5 Sup. Ct. Rep. 836. In Moore v. Robbins, 96 U. S. 530, the court said: “The courts are as open to the United States to sue for the cancellation of the deed, or the reconveyance of the land, as to individuals, and, if the government is the injured party, this is the proper course. ” Insurance v. Weide, 11 Wall. 439; Hughes v. U. S., 4 Wall. 232; U. S. v. Minor, 114 U. S. 238, 5 Sup. Ct. Rep. 836.
The case before the court differs in its facts from a class of cases in which it is held that, for errors of judgment upon the weight of the evidence in a contested case before the officers of the land department, the only remedy is by appeal from one officer to another of the department. Shipley v. Cowan, 91 U. S. 340; U. S. v. Minor, 114 U. S. 238, 5 Sup. Ct. Rep. 836; Throckmorton's Case, 98 U. S. 61.
As the case is presented by the record, my .opinion is that the survey and patent ought to be set aside and vacated, as prayed for in the bill of complaint. I concur in the opinion and judgment of the court.