(dissenting.) I am unable to agree with the majority in the opinion delivered in this ease. The record is very voluminous, and will not be reviewed in this dissent except in a brief manner, upon the grounds stated as reasons for withholding my assent to the opinion of the court. The original and supplemental bills are both grounded upon alleged frauds committed by the officers of the government, and by the grant claimants.
Ramirez was a claimant under a grant or concession from the republic of Mexico of 5,000 varas square of land lying in New Mexico, and situated within. certain boundaries called for in the concession. After the passage of the act of congress establishing the office of surveyor general of New Mexico, and in obedience to that act, Ramirez filed his claim to the land, and submitted to the surveyor general his title papers and proofs to establish the bona fldes of his claim and the validity of his title. The records of the surveyor general’s office show that the assertion of this title by Ramirez took theform and was in fact an adversary proceeding. It was entitled “Ramirez vs. The United States. ” Proof was taken, and a decision had thereon by the surveyor general, approving and establishing the title, both as to its validity and extent, as fully as that officer had power under the act of congress to do. The report of this officer approving the grant was forwarded to the general landoflice at Washington, and, after approval by the commissioner and secretary of the interior department, it was submitted to congress, and approved as recommended.
The grant having been confirmed by congress, it became the duty of the general land-office to cause the grant to be surveyed, and, in pursuance of authority given to that department, a survey was ordered, so as to definitely set apart the lands to which Ramirez was entitled. After taking some proofs in the form of affidavits by the surveyor-general, or a subordinate of his office authorized to act in his stead, a survey was made, and a plat thereof returned to the commissioner of the general land-office, who, after examination, set it aside, on account of some discrepancies between calls in the grant papers and the survey so made. The surveyor general was ordered to make a further survey, which was done; but little change, however, was made between that and the first. With this second survey before him, accompanied by a map or plat thereof, and after full opportunity to examine the affidavits taken before Griffin and Miller, as well as those taken by the special agent, Treadwell, he approved the survey, and in express words found that the surveyed limits or area contained in the grant thus surveyed was within the boundaries described in the juridical or actual possession delivered to Ramirez when he took formal possession under the Mexican government. With the survey, plats, original title papers, and all the proofs taken from first to last in the ease before him, knowing that one of the calls for courses contained in the original concession had been disregarded, the commissioner of the general land-office approved ■the survey. The secretary of the interior also approved it, and thereupon the patent issued.
The grantee took no ex parte proofs to deceive the surveyor general. Such affidavits as were taken were made by witnesses called upon by the officer of the plaintiff, in order to aid him in surveying the grant according to the true intent and purpose of the parties to the concession. This officer was bound to look for the landmarks, in order to locate the grant. At most, whether looking to the conflicting statements of the witnesses before Miller and Griffin, the special agent, Treadwell, or the record before us, it cannot be affirmed, in the light of the evidence, that any fraud or mistake was made in placing the Tuerto mountain east of the Canon del Agua spring. The evidence preponderates, in my judgment, in favor of the survey, to the extent at least of locating the Tuerto mountain east, instead of west, of the spring. I cannot discover in what way the United States has been, or could have been, defrauded, or its officers deceived, or in any way misled, when the facts were known, at the time the survey was approved and patent issued, as fully as the court has been advised by the pleadings and proofs before us.
I am forced to the conclusion that a bill would not lie at the suit of a private person or corporation to set aside a deed made under like circumstances as the patent is here shown to have been issued. Some force must be given to the acts of the officers, acting within the scope of their admitted powers, and upon a subject-matter confided to them by express legislation of congress. If, in any case before the department, a claim asserted by a citizen growing out of a Spanish or Mexican grant case be said to be adversary proceeding, this is one. The title claimed by Batnirez was against the United States, not by purchase, or as a pre-emptor or homesteader, but in opposition to it, under a title paramount from a different sovereignty. The United States submitted itself to the jurisdiction of a tribunal of its own creation, and there can surely be no reason, in law or justice, for favoring it in such case, unless, under like circumstances, an action would lie at the suit of a citizen. Indeed, this view is taken by the supreme court of the United States in U. S. v. Minor, 114 U. S. 233, 5 Sup. Ct. Rep. 836. In Vance v. Burbank, 101 U. S. 514, it was held that, where there was a hearing, rehearing, and issues made and tried between the parties in such a case, the decision of the proper officers of the department is in the nature of a judicial determination of the matter in dispute. The later case of U. S. v. Minor in express words approves the doctrine announced in Vance v. Burbank, supra.
If, therefore, the facts disclosed in this record are sufficient to bring this case within the principles declared in Vance v. Burbank and U. S. v. Minor, there can be no escape from the conclusion that the bill should be dismissed, unless other and different grounds of relief can be shown. I have, I think, demonstrated from the confessed facts in the record that the claim filed and passed upon in the surveyor general’s office was, both in form and substance, a suit against the United States to assert a title under an older and superior title to that acquired under the treaty of 1848; that proofs were taken, and, upon full consideration, in strict compliance with the laws of congress, the grant was approved; that the proceedings to ascertain the exact lands to which Bamirez was entitled were conducted by the plaintiff through its own officers; the first survey having been unsatisfactory, a second one was ordered, and, after a thorough knowledge of all the facts, the officers of the executive department approved the final survey, and patented the lands. If such a proceeding is not an adversary one, if the government was not an active adverse party in interest in such case, I cannot well imagine any state of case in which the United States could be an adversary party in that department. If, however, under any view of the facts, a bill will lie, and the government can escape that final determination, and come into court for the purpose of setting aside and canceling this patent, it will not be pretended that such relief will be granted, as against an innocent purchaser for value, without notice of the alleged frauds.
The defendant corporation, as appears by its certificate of incorporation, was organized as a corporation, with power to do business, ontbe twenty-second day of March, 1880. The certificate or articles show that this company was created under the General Statutes of Connecticut. By that general law, the filing of a certificate of incorporation, showing the name of the corporation, its capital stock, and other details, is made a condition precedent to its power of exercising or assuming any corporate franchises. Page 108, Gen. St. Conn. 1838. In other words, the filing of the certificate is the act of creating the artificial being known as a corporation. Before that is done it has no legal existence, and it follows that until that period it could neither bind itself nor be bound as a corporation by the act of any of its promoters. After this date, and before the purchase, it is not even pretended that notice was in any manner given of the alleged actual fraud charged in the bill. Hot one line can be found in the evidence to warrant the conclusion that there was actual notice given to any of the defendant’s officers in such manner as to impart legal notice to the corporation. It is true that Ballou, Welch, and Grafton were upon the grant in the month of January or February, 1880, but there is nothing to show that they were acting for or on behalf of the defendant. In fact, the defendant company was not then in existence. Take the statements and conversations of these persons with the miners then upon the grant, and what do they amount to as notice, in the most liberal and general sense? They claimed rights under the United States adverse to the patentee, or his grantees, and ■were promised protection. This was notice to these persons and individuals that there were many people then upon the grant who had made mining locations within the surveyed boundaries of the land, and that such titles were claimed in opposition to the patentee of the United States. It might even be conceded, for the sake of argument and illustration, that notice to these persons was in legal effect notice to the defendant corporation, and still such notice would be wholly insufficient to bind the defendant, or to deny it the right to plead and rely upon its title as a grantee through mesne conveyances from the patentee. Taken in its broadest sense, there would be notice; not of any fraud or fraudulent contrivances on the part of the grantees to obtain a patent, and that the fraud so committed by the patentee induced the-United States to confirm the grant, and to survey and patent the particular lands described in the patent. As between the United States and the defendant corporation, there is not the slightest evidence to induce a belief that the government had been deceived and imposed upon by the patentee. I cannot find any evidence tending to show that the United States had been defrauded by the survey.
But the majority think that the company is constructively put upon inquiry by the chain of title under which it holds, and is therefore affected with notice of the incorrectness of the survey. This line of reasoning is to my mind somewhat strained and forced, to a degree unwarranted by the authorities. Even if a purchaser be bound, as decided in this case, to look to all antecedent acts or documents leading up to the patent; and if, by an inspection of such elements of title, such as the original grant papers in this case, he should find that there is evidence or information to the effect that the lands granted were improperly surveyed, — then the purchaser is bound to take notice that there were frauds and perjuries committed by the patentee, and the witnesses who swore that the true boundary was to the east of the spring, because the landmark called for in the original papers was to the west, instead of the east. No authority has been cited to support such an extreme position, nor do I think a case can be found. Had not any citizen of the United States a right to conclude that the United States was bound and finally concluded by the patent? It was issued at the end of a long controversy with the government itself as a party. The patent does not injuriously affect any adverse claimant, whether as a citizen of the town of San Francisco or a mine-owner. Whatever legal validity there was in the possession or ownership of any class of property within the surveyed limits of the grant held or owned adversely to the patentee, is, in the express words of the patent, not concluded or bound by it. The patent does not preclude them from asserting in the courts whatever right they then owned, unless barred in some way since that time. The United States sued in her own right, and very wisely saved the titles of adverse claimants from the operation of the patent, notwithstanding it included lands, houses, and mineral rights of persons residing upon the granted premises. The naked question is therefore presented: Should the United States stand concluded on the facts shown in this record by her own solemn conveyance made in the manner recited? My answer is that she should be.
I concur in so much of the opinion and judgment as declares that the patent did not operate to pass the precious metals under the surface of the earth. There is nothing to show that Ramirez ever claimed the principal mine, over which so much controversy has arisen, under the patent, as his original source of title. The claim asserted by him for recognition by the United States arose under the mining ordinances of Mexico. That title was a separate and distinct estate from the agricultural grant he solicited and obtained from the government at a later period. Congress confirmed his claim for a grant, but took no action whatever to either grant or confirm him in a title to a mine.
The legal title to the mine or mines located upon the grant can be determined in a court of law; but until some sort of title to the mine has been in some way established the United States can protect herself by injunction to restrain a mere claimant who has in no way lawfully appropriated the ground or the minerals by discovery and locations as prescribed by law. Such a title is essentially a legal one. Equity has no jurisdiction, unless to stay waste, or enjoin a wanton and destructive injury by a naked trespasser.