OPINION OP THE COURT.
HANNA, J.(after stating the facts as above)
[1]' The first question for our consideration is with respect to the nature and extent of the jurisdiction of the Court of Private Land Claims.
Appellee contends that this court was one of special and limited jurisdiction, without power to do anything except settle controversies between claimants to a Spanish or Mexican grant and the United States, and that its decree operated only as a quitclaim, so far as the government was concerned; the court being precluded, by the statute creating it, from attempting to decide disputes between rival claimants to the same lands. For which reasons the Court of Private Land Claims had no -jurisdiction of the original petition of Felipe Peralta and Tomas Cordoba for the confirmation of the Sevilleta grant so far as it conflicted with the Belen grant.
In support of this contention our attention is directed to subdivisions 4 and 5 of section 13 of the congressional act creating this court (Act March 3, 1891, c. 539, 26 Stat. 860). These subdivisions read as follows:
“Fourth. No claim shall be allowed for any land the right to which has hitherto been lawfully acted upon and decided by Congress, or under its authority.
“Fifth. No proceeding, decree, or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be reserved and saved to the same effect as if this act had not been passed; but the proceedings, decrees, and acts herein provided for shall be conclusive of all rights as. between the United States and all persons claiming any interest or right in such lands.”
The Supreme Court of the United States, in construing subdivision 4, supra, said:
“The peremptory declaration of Congress that hio claim shall be allowed for any land the right to which has hitherto been lawfully acted upon and decided by Congress’ necessarily prohibits the court from passing upon the merits of any such claim.” United States v. Baca, 184 U. S. 659, 22 Sup. Ct. 543, 46 L. Ed. 733.
And, again, in the case of United States v. Conway, 175 U. S. 71, 20 Sup. Ct. 17, 44 L. Ed. 72, the same court said:
“When the title has once been confirmed by Congress it should be respected by the Court of Private Land Claims as if it were a confirmation by the court itself, and conflicting claimants are at liberty to resort to the ordinary remedies at law or in equity, according to the nature of the claim.”
By the appellant it is contended that the original petition of Peralta and Cordoba was an original proceeding under section 8 of the act creating the court. This section is as follows:
“That any person or corporation claiming lands in any of the states or territories mentioned in this act under a title derived from the Spanish or Mexican government that was complete and perfect at the date when the United States acquired sovereignty therein, shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for other cases for a confirmation of such title; and on such application said court shall proceed to hear, try, and determine the validity of the same and the right of the claimant thereto, its extent, location and boundaries, in the same manner and with the same powers as in other cases in this act mentioned.
“If in any such case, a 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 excepting any part of such land that shall have been disposed of by the United States, and always subject to and not to affect any conflicting private interest, rights, or claims held or claimed adversely to any such claim or title, or adversely to the holder of any such claim or title. ■And nd confirmation of claims or title in this section mentioned shall have any effect other or further than as a release of all claim of title by the United States; and no private right of any person as between himself and other claimants or persons, in respect of any such lands, shall be in any manner affected thereby.
“It shall be lawful for and the duty of the head of the Department of Justice, whenever in his opinion the public interest or the rights of any claimant shall require it, to cause the attorney of the United States in said court to file in said court a petition against the holder or possessor of any claim or land in any of the states or territories mentioned in this act who shall not have voluntarily come in under the provisions of this act, stating in substance that the title of such holder or possessor is open to question or stating in substance that the boundaries of any such land, the claimant or possessor to or of which has not brought the matter into court, are open to question, and praying that the title to any such land, or the boundaries thereof, if the title be admitted, be settled and adjudicated; and thereupon the court shall, on such notice to such claimant or possessor as it shall deem reasonable, proceed to hear, try, and determine the questions stated in such petition or arising in the matter, and determine the matter according to law, justice, and the provisions of this act, but subject to all lawful rights adverse to such claimant or possessor, as between such claimant an\d possessor and any other claimant or possessdr, and subject in this respect to• all the provisions of this section applicable thereto6 Fed. Stat. Ann. 54.
It is to be observed by an examination of the italicized portion of section 8 that a confirmation by the Court of Private Land Claims was to be always subject'to, and not to affect, any conflicting private interests, or claims held adversely, but to operate only as a quitclaim or release of all claim of title by the United States. The limitation upon the jurisdiction of the Court of Private Land Claims, as thus pointed out in section 8, again appears in subdivision 5 of section 13, quoted supra, and there can be no question that the court was thus limited as is contended by appellee.
We are therefore unable to agree with this position of appellant upon the question of jurisdiction.
It is next ably argued by appellant that the Court of Private Land Claims had jurisdiction to hear and adjudicate the objections filed by Sanchez and Sais and to order the resurvey.
In this connection appellant contends that the ease presented to the Court of Private Land Claims by the petition of Sanchez and Sais was not one of overlapping grants, and that the petitioners did not claim that their lands had been previously disposed of by the United States, but was a case invoking the jurisdiction of the court for the purpose of locating a common boundary line between the two grants, and to confine the decree of confirmation to that common boundary line. We think this is quite true, but it now develops that, as a result of the resurvey thus brought about, something like 11,000 acres previously included within the Belen grant, as confirmed by Congress, was confirmed to the Sevilleta claimants. In this connection appellee argues that appellant’s contention that this was an original proceeding under section 8, supra, does not apply, because, while confirmations of grants having a perfect title are sanctioned by the section referred to, nevertheless all lands previously disposed of by the United States are to be excepted from such confirmation. The act in question constituting and creating this court having withheld jurisdiction over lands previously granted by the United States, the act of the objectors could not confer upon the court a jurisdiction not •conferred by the congressional act.
[2] Appellee further argues that the main object of the Court of Private Land Claims was to determine whether or not the land included in the Sevilleta grant was private or public property, and, if found to be private property, • to confirm the grant. As we understand •appellant’s position, it is not inconsistent with the legal principles urged by appellee, but is essentially that the •act of Congress did not require the defendant to invoke the jurisdiction of the court to locate the true boundary, ■and, having elected to invoke the jurisdiction, the appellee is bound by the result, upon the principle of res adjudicata. We cannot agree with appellant in this, as it is axiomatic that jurisdiction cannot be conferred by consent.
_ The rule upon the subject of res adjudicata was well stated by the Supreme Court of the United States, in Washington, Alexandria & Georgetown S. P. Co. v. Sickles et al., 65 U. S. (24 How.) 333, at page 342, (16 L. Ed. 650), in the following language:
“A judgment or decree set up as a bar by plea, or relied on as evidence by way of estoppel, must have been made by a court of competent jurisdiction upon the same subject-matter, between the same parties, for the same purpose.”
It is our opinion that the Court of Private Land Claims was so plainly limited in its jurisdiction in both instances of previous grant by the government and private rights •of other claimants that it must be held that there was a total want of jurisdiction, which clearly could not-be conferred by consent, and that the doctrine of res adjudicata •could not, therefore, apply.
We do not deem it necessary to pass upon appellee’s further contention that the action of the Court of Private ’Land Claims in ordering a resurvey was a mere finding-that the same should be made, fixing a certain line as a boundary, and not a judgment decreeing the land in question.
The third point urged in appellant’s brief is that the-Court of Private Land Claims ascertained as a fact, by a proceeding essentially judicial in its nature, the common boundary between the two grants. Appellant disclaims-any intention of asserting that the Court of Private Land’ Claims had power to annul the patent to the owners of the Belen grant, but does contend that the court had the-power to ascertain the fact (of boundary) upon which the law, in this subsequent proceeding, declared the result. We are of the opinion that this point is disposed of by our conclusion upon the section point, and that the Court of Private Land Claims, having no jurisdiction over the subject-matter of the controversy, could not exercise judicial power over it.
It is next submitted that the owners of the Belen graut are estopped to question the location of the northern boundary line or to claim any land to the south of the line as. established. This question-is ably and earnestly presented by counsel upon the theory of estoppel by conduct notwithstanding the alleged lack of jurisdiction, but we find' ourselves unable to agree with the reasoning of appellant. We agree with appellee in this aspect of the case, and: quote, with approval from its brief upon this point
“The mere objection to the first survey of the La Joya grant, even if it be conceded that Sanchez and Sais were authorized to, and did, act for all the claimants of the Belen grant, was not a submission of the question of title to the land here in controversy to a court of competent jurisdiction for settlement. This objection, even if' the claimants to the Belen grant authorized it, was, at most, but a protest against the United States confirming the survey, and thus easting a cloud on their title. Counsel concedes that the Belen grant was under no obligation to protest, and, if they did not protest, the confirmation of the Sevilleta de La Joya grant would not affect their rights. If this argument is correct, then the Belen claimants were under no obligation to protest against the last survey, and, not having done so, are in no way bound by the decree. As we have seen, the decree, by the very terms of the statute, could have no effect 'other or further than as a release of all claims of title by the United States; and no private right of any person as between himself and other claimants or persons, in respect to such lands, shall be in any manner affected thereby.’ Section 8, Act March 3, 1891; 6 Fed. St. Ann. 54.”
Appellant, as a final proposition, urges that Sanchez and Sais represented in the Court of Private Land Claims the defendant in this case, appellee here, and its predecessors in title. We do not understand that this contention of appellant was controverted .by appellee, and deem it immaterial by reason of our conclusion upon the question of jurisdiction and our opinion that jurisdiction could not be conferred by consent.
We do therefore conclude that the judgment of the trial court must be affirmed; and it is so ordered.
Roberts, C. J., and Parker, J., concur.