I. The Court did not err in directing the jury to reject the patent, provided they should find from the testimony that the lots sought to be recovered were city, town, or village lots of a city, town, or village existent July 7th, 1846
1st. The Board of Land Commissioners, created under the Act of Congress of March 3d, 1851, was a tribunal of limited jurisdiction, and only authorized to act upon such claims and cases as were delegated to it, andpermitted by the law conferring its powers.
On the point in question, the language of the fourteenth section--plainly intended as a limitation of the powers conferred by the eighth section--is explicit. The words of section fourteen are: " That the provisions of this act shall not extend * * * to any city, or town, or village lot, which city, town, or village existed on the seventh day of July, one thousand eight hundred and forty-six; but the claim for the same shall be presented by the corporate authorities of the said town."
Nothing, as we conceive, but an ingenious perversion of the clear intent of the law-maker, manifested in the simple words expressive of such intended limitation of powers conferred upon the Board, can be urged in support of the assumed authority to adjudge the question of a claim to town or village lots of a town or village existent July 7th, 1846, and we suggest that such forced construction has not the merit of plausibility.
Counsel for appellant says the fourteenth section does not support the charge of the Court, and that it is obvious the section did not contemplate a grant by a Governor; and that it was intended to aid those who derivedtheir titles through the common medium of the former officers of the pueblo; and that the language of the section shows that it was not place, but source of title which distinguishes what shall be considered as town lots, village and pasture lots, from any other lands.
A common source of title to vilage or town lots of a town or village existent July 7th, 1846, through which claimants might claim to derive their rights to lots comprising the locality where the town or village was situated, is neither within the meaning, much less the words of this fourteenth section, which prohibits the Board from inquiring into and passing upon the claims of parties to town or village lots of towns or villages established when the country was seized by the Americans. The act proceeded upon the presumption that lands embraced by a town or village, existent when the American flag was raised, were not a part of the public domain; and that as a consequence the United States had no interest in and to such lands to be determined by the Board or any of the tribunals authorized to exercise jurisdiction in separating and distinguishing private claims from the public lands. Lands occupied as town siteswere not assumed to belong to the Government, nor was it presumed that the Government had the slightest interest either in the question of how or when such lands had been segregated from the Mass. of the public domain, or interest in the rights of the individual claimants to them, or any part of them; and hence the positive inhibition contained in the fourteenth section against the United States tribunals inquiring into and determining the rights of claimants to village or town lots in any manner, or for any purpose.
2d. It is indisputable that the authorities of pueblos had power to grant lands of the pueblos in fee to applicants. The same power may have existed in the Governor of the Department, in order to promote the settlement of the town. Assuming that the power was coequal in both, and that the Governor in a given case had attempted to make a concession of a town or village lot, but such attempted concession had not passed the fee by reason of uncertainty of the description, and that there was no actual possession taken, or judicial possession given, under the concession of any specified lot or tract, it then would be deemed at most that such attempted concession would amountonly to a simple equity, and could carry with it the fee to nothing. Suppose, further, that the concessionee had even built a temporary or other structure on what he supposed to be the place intended to be conceded; that soon afterwards the erection was removed or destroyed, and the locality where it stood, as well as the surrounding neighborhood for many hundred yards distant, was entirely unoccupied for any purpose by anybody, and continued so unoccupied and abandoned by any use whatever for seven years and upwards; that thereupon the pueblo authorities, having full power to grant the fee to lands within the pueblo limits, where the fee had not been previously granted, should grant in full property a specific, surveyed, and well defined village lot of fifty varas square, lying in the immediate neighborhood where said house or structure had been erected many years before by the former equitable claimant, and even embracing the very spot where the former erection had stood; in such case it is obvious that a vested right in fee would exist to the particular fifty vara lot in the grantee of the pueblo authorities. Clearly the United States, as the successor of Mexico, could not divestsuch vested right of the pueblo grantee by any act of legislation, decree of its Courts where such grantee was not a party, or survey made by the United States authorities wherein he had no voice or act, and embracing his fifty vara lot.
There can be no doubt that under a proper construction of the Act of March 3d, 1851, when applied to cases within its objects, such as confirmation, surveys, patenting of ranch or rural property, and thereby separating such property from the Mass. of the public lands, a patent issued for a particular tract is conclusive evidence of right to the same in the patentee, not only against the Government issuing it, but as against all other parties who had not a right in fee to the same land before the issuance of the patent; and this may be so as well where the patent covers more or other land than may have been originally granted, as where it is confirmed to the identical land embraced by the grant, because the United States may, when dealing with their own land, dispose of it as they please. Land not granted in fact by the former sovereign or rightful authorities acting under its laws, may be disposed of in fee by the new sovereign, and the patentis conclusive as against the sovereign issuing it, that the fee embraced by it had been parted with. The doctrine of Moore v. Wilkinson , 13 Cal., proceeds upon that view and no other, and has no proper application to the case before the Court.
If then we are correct, it follows that the proceeding had before the Board by Leese and Vallejo touching these town or village lots was unauthorized by law, and all the subsequent steps based thereon, including the issuance of the patent, were simply void and unavailable for any purpose. (Patterson v. Winn, 11 Wheat. 380; Stoddard v. Chambers, 2 How. 284.)
II. But if mistaken in the jurisdictional question, and the Board, notwithstanding the inhibition of the fourteenth section, did rightfully take cognizance and make decree of confirmation to plaintiff and Vallejo, as against the United States, of the lots in question, then it is contended no error was committed by the Court.
1st. The defendants are " third persons" within the meaning of the fifteenth section of the Act of March 3d, 1851, whose interests the decree of confirmation and patent do not affect. The defendants acquired in 1847, through the rightful municipalauthorities, the fee to the lands described in the complaint, provided always that it had not been previously granted. What was a grant was a matter of law, but what had been granted was a question of fact. Before the Board, as between the claimant and the United States, both were determinable by that tribunal; but as between the claimant and rightful " third persons," neither the determination of the question of law or of fact, involved in the claim sought to be confirmed by the Board, would or could in any respect operate a divestiture of the fee to any given tract out of such third parties, and invest it in the claimant. In a word, if the fee to the locus in quo could pass and did pass by municipal grants, and was in the defendants in 1847, no prior but imperfect concession, although made by rightful Mexican authorities, would affect it, even if such prior concession was for the same land.
What was embraced then by any alleged grant was in proper cases a question of fact, which, by the law of March 3d, 1851, was necessarily left to rightful third persons to contest with the patentee, notwithstanding confirmation by the United States tribunals, the survey of the tract claimed, and the issuance of the patent. This was so in the very nature of things, even without reference to the explicit provisions of the act itself declaring the reservation of such rights, and limiting the effect of patents to be issued to claimants under it.
The question of fact as against defendants, claiming the tract in fee covered by the patent, must be determined, not by the patent, but by the grant which was its foundation.
What land was embraced by the grant must then of necessity, in a case like this, have been ascertained by the proofs. The evidence in that respect was full, and the jury were unable from it to locate the land.
2d. The third persons against whose rights and interests the action of the Government and patent are not conclusive, are those " whose title accrued before the duty of the Government and its rights under the treaty attached." See the case of Teschemacher et al., Executors, v. Thompson , 18 Cal. 11, for a definition of " third persons" mentioned in the fifteenth section of the Act of Congress.
The defendants claim through Alcalde grants, under which they went into possession. These grants were made in 1847, and the rights and duty ofthe U.S. Government in the premises only began and attached in May, 1848, at the date of the treaty of Hidalgo.
JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
FIELD, Judge
This is an action of ejectment to recover the possession of two lots situated within the city of San Francisco. The plaintiff counts upon a grant made to himself and Salvador Vallejo, in May, 1839, by Juan B. Alvarado, then Governor of California, and a patent of the United States issued upon its confirmation, in March, 1858. The petition presented to the Governor, and upon which the grant issued, solicits a concession of two lots of one hundred varas each, situated at the Desembarcadero, or landing place of Yerba Buena, and describes them as commencing at the point of the Desembarcadero on the sea shore, and running thence in a northerly course to the Playita or little beach, making a front of two hundred varas, and a depth in a westerly direction towards the hill of one hundred varas. We do not use the exact language of the translation given in the record, but state its manifest purport. The grant concedes to the petitioners the two lots at the place and with the bounds designated. The claim under the grant was presented to the Board of United States Land Commissioners for confirmation in February, 1852, and was by the Board adjudged to be valid, and confirmed in February, 1856. The case having been carried by appeal to the United States District Court, the Attorney General gave notice that the appeal would not be prosecuted, and upon the stipulation of the District Attorney to that effect, the Court in April, 1857, ordered the appeal to be dismissed, and allowed the claimants to proceed upon the decree of the Board as upon a final decree. In May following, an official survey of the lots was made under the directions of the Surveyor General, and approved by him. Upon the approved survey and decree of confirmation, the United States issued to the claimants their patent of the lots, with the specific description of the official survey. The premises in controversy are covered by this patent, and it is admitted that the defendants were in their occupation at the commencement of the action. The interest of Vallejo had been previously conveyed to the plaintiff.
To meet the case thus presented, the defendants produced sundry grants of the same premises, in lots of fifty varas each, made to them or their grantors in 1847 by persons then acting as Alcaldes or Chief Magistrates of the Pueblo of Yerba Buena, or town of San Francisco, and contended that the Board of Land Commissioners had no jurisdiction to pass upon the claim of the plaintiff and Vallejo under the grant of Alvarado, and as a consequence, the subsequent action of the District Court, of the Surveyor, and of the authorities at Washington in issuing the patent, were without authority and void; or, if the Board had such jurisdiction, that the defendants, claiming under the Alcalde grants, were third persons within the meaning of the fifteenth section of the Act of Congress of March 3d, 1851, against whom the decree of confirmation and patent were not conclusive, and that they were in consequence as much at liberty to question the location of the premises as if the grant had never been before the Commission. Proceeding upon this view of the jurisdiction of the Board, and the construction of the fifteenth section, the defendants directed their proof to show that the premises in controversy were not embraced by the grant in question. The evidence as to the locality of the starting point of the premises granted, known in 1839 as the Desembarcadero or landing place of Yerba Buena, was conflicting. The jury found for the defendants, on the ground, as stated in their verdict, that they could not locate the grant as claimed by the plaintiff.
This Court has held, in repeated instances, that at the date of the conquest of California, which is considered as having been effected on the seventh of July, 1846, and previously, running back as far as 1834, San Francisco was a Mexican pueblo, and the objection to the jurisdiction of the Board and the validity of the patent was based upon the fact that the lots granted to the plaintiff and Vallejo were within the limits of this pueblo. The Court below instructed the jury, in substance, that if the land described in the patent were city, town, or village lots of a city, town, or village in existence on the seventh of July, 1846, then neither the Board nor the District Court had any jurisdiction of the claim, and the patent issued for such claim was of no validity, so far as it affected the interests of the defendants, unless the land was granted previous to the existence or for the purposes of the city, town, or village; and further, that if the jury found that the premises were, at the time they were granted, within the pueblo limits, then they were town lots within the meaning of the Act of Congress; and, in that case, the jury must exclude from their consideration the patent of the United States, and could not base their verdict upon the description of the premises or anything it contained. In other words, the Court instructed the jury, that if the lands granted were within the limits of the pueblo, they were town lots within the meaning of the Act of Congress, and if town lots, the claim to the land was not within the jurisdiction of the Land Commissioners, and the patent was issued without authority, and must be excluded from their consideration, so far as it affected any interests of the defendants.
These instructions were confessedly based upon the fourteenth section of the Act of Congress of March 3d, 1851, but are not in our judgment warranted by its provisions. The jurisdiction of the Commission over land claims arises from the eighth and fourteenth sections of the act. The eighth section requires every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican Government, to present the same to the Commission. The fourteenth section qualifies the general language of the eighth section, and excludes from its provisions lots held under grants from any corporation or town to which lands had been granted for the establishment of a town by the Spanish or Mexican Government, and also lots held or claimed by any city, town, or village which was in existence on the seventh of July, 1846, and provides that the claims for the same shall be presented by the corporate authorities of the town, or if the land upon which the city, town, or village was situated was originally granted to an individual, in the name of such individual. The evident object of this section was to aid lot holders who claimed title from a common source--from the authorities of a pueblo or town, or from an individual who was originally the grantee of the land upon which the pueblo or town was built--and to prevent the necessity on the part of the Commissioners of considering a multitude of separate individual claims for small tracts, all of which depended upon the validity of the same original title. The confirmation of the common title in such cases would of course inure to the benefit of all parties holding under the claimants, for between them there would exist privity of estate. We do not consider the second provision of the section as embracing all lots situated within the limits of a city, town, or village, which existed on the seventh of July, 1846, but as embracing only the lots belonging to or claimed by such city, town, or village, thus authorizing the corporate authorities to present under one general claim the interest of the city, town, or village, and the separate interests of individuals under concessions from those authorities. The section, it is true, is not free from ambiguity, and for that reason such construction must be adopted against the literal meaning of the language used as will reconcile apparent inconsistencies, give sense to each part, and carry out the purpose of the entire act. The first clause of the section, for instance, declares that the provisions of the act shall not extend to any town lot, etc., and yet subsequent clauses of the same section designate the manner in which claims to such lots shall be presented. Thus the same section apparently excludes the jurisdiction of the Board from these cases, and at the same time provides for their presentation to the Board for its consideration. But from other provisions and the general object of the act, it is evident that it was only the intention of Congress to distinguish the mode in which the claims designated in this section should be presented from the mode required with respect to individual claims by the eighth section; and hence, the general language of its opening declaration must be restricted and held to apply only to the provisions of that section. So the second provision of the section cannot be construed, notwithstanding its comprehensive terms, to require the claim to every city, or town, or village lot--where the city, town, or village existed on the seventh of July, 1846--to be presented by the corporate authorities, simply from the fact that they are within the limits of such city, town, or village, without reference to the title by which they are held, as such construction would in many instances defeat the very object of the act, and instead of settling would effectually destroy the rights of the lot holders. The confirmation of a claim, whether made to corporate authorities or to individuals, could only be for the benefit of the claimants or parties deriving title through them. It could not of course inure to the benefit of parties holding adversely to the title confirmed, as there would exist no privity of estate between them and the confirmee. If the adverse claims were mere equitable interests, as in many instances is the case, the confirmation followed by a patent would entirely extinguish them; and it would thus follow that the Government, instead of discharging its obligation under the treaty and protecting the equitable interests of its citizens, would have provided for their effectual destruction in numerous cases. It may be said in answer to this, that protection to such adverse interests could be secured by the form of the decree--by the insertion of distinct clauses of confirmation to the owners. But if this were possible, it would be attended with infinite embarrassment and inconvenience. It would be necessary, in the first place, for the corporate authorities to present the separate claim of each lot holder, with as much fullness and particularity, and accompanied with the same documentary evidence required of individual claimants by the eighth section; and to do this the authorities might not possess the information or the means. In the second place, each claim would call for separate examination, discussion, and judgment on the part of the Board, and all the claims being presented in one proceeding would furnish inconsistent and contradictory propositions for consideration, and produce a confusion such as would follow from blending in one complaint different causes of action between different parties. With the single exception of the location of the different lots claimed within the limits of the town, there would be little in common, either in the allegations or proofs. Such a result could not have been contemplated by Congress in the provision in question. Nor could Congress have ever intended to subject the corporate authorities to the expense of establishing the title of third parties, with which they have no connection, but which is adverse to that of the city, whose interests they are supposed to represent and protect. For these reasons, we are of opinion the Court erred in its construction of the second provision of the fourteenth section, and that the fact that the premises described in the grant of Alvarado and patent of the United States were town lots of a pueblo existing on the seventh of July, 1846, or at the date of the grant, on the twenty-first of May, 1839, did not exclude the claim of the grantees from the jurisdiction of the Board, or require the presentation of their claim by the corporate authorities. It is only where the lots are held under concessions from such authorities, or belong to the pueblo, that the claim must be presented as required by the fourteenth section. Leese and Vallejo did not hold or claim under any corporation or town, but directly by grant from the Governor, and their claim is not therefore embraced by the provisions of the section in question when that section is properly construed. It was a claim to be presented under the eighth section of the act; it was so presented, and jurisdiction, in our opinion, was rightfully taken of it by the Board.
A similar construction was given to the fourteenth section by the Board in the consideration of the claim presented by the city of San Francisco, and its jurisdiction to pass upon claims of individual lot holders under grants from the former Governors, upon their separate presentation, has been asserted by it in repeated instances, and this jurisdiction has been recognized by the United States District Court. A denial at this day of such jurisdiction, and the validity of proceedings consequent thereon, would lead to the disturbance of numerous titles, and injuriously affect vast interests within the limits of the city. We have no doubt of the jurisdiction, and that to the patent, issued to the plaintiff and Vallejo, the same operation and effect should be accorded as to any other patent, regular upon its face, issued by the United States, upon the confirmation of a claim under a Mexican grant, pursuant to the Act of Congress of March 3d, 1851.
As to the operation and effect of this patent there can be no question. It is the last act of a series of proceedings taken for the recognition and confirmation of the claim of the patentees to the land it embraces, the first of which was the petition to the Board of Land Commissioners. With respect to such proceedings it takes effect by relation at the date of the first act. As the deed of the United States, it is to be regarded as if it had been executed at that time. It passes whatever interest the United States may then have possessed in the premises. It operates in consequence as an absolute bar to all claims under the United States, having their origin subsequent to the petition. (See Moore v. Wilkinson , 13 Cal. 478; Yount v. Howell , 14 Id. 465; Stark v. Barrett , 15 Id. 362; and Ely v. Frisbie , 17 Id. 250.)
But the patent has a still further operation and effect. It is not merely a deed of the United States conveying whatever interest they may have held in the premises at the institution of proceedings before the Land Commission. It is also a record of the Government, showing its action and judgment with respect to the title of the patentees at the date of the cession. By the treaty of Guadalupe Hidalgo, the United States in effect stipulated for the protection of the rights of property of the inhabitants of the ceded territory. Independent of treaty stipulations, the inhabitants were entitled to such protection by the law of nations. The obligation thus devolved upon the Government upon the acquisition of the country was political in its character, and to be executed in such manner as the Government might judge expedient. To execute this obligation necessarily required an inquiry into the nature and extent of the claims asserted to property at the date of the treaty. This inquiry involved something more than an investigation into the genuineness of the title papers of the patentees: it also involved an ascertainment of the quantity, location, and boundary of the property claimed. Thus in the case of the United States v. Fossatt, 21 Howard, 449, Mr. Justice Campbell, in delivering the opinion of the Supreme Court, said: " In affirming a claim to land under a Spanish or Mexican grant to be valid within the law of nations, the stipulations of the treaty of Guadalupe Hidalgo, and the usages of those Governments, we imply something more than that certain papers are genuine, legal, and translative of property. We affirm that ownership and possession of land of definite boundaries rightfully attach to the grantee." By the Act of March 3d, 1851, the Government provided the means for the ascertainment of the character and extent of the titles alleged to have existed previous to the cession. It established a tribunal before which all claims to land were to be investigated; prescribed rules for its action; required evidence to be presented respecting the claims; authorized appeals from the decisions of the tribunal, first to the District and then to the Supreme Court, and appointed officers to survey and measure off the land when the validity of the claims had been finally affirmed. Informed by the proceedings thus had before its tribunals and officers, the Government regulated its conduct, and to the successful claimant issued its patent. This instrument, as we have stated, is the record of the Government upon the title of the patentee to the land described therein, declaring the validity of that title and that it rightfully attaches to the land. Upon all the matters of fact and law essential to authorize its issuance, it imports absolute verity; and it can only be vacated and set aside by direct proceedings instituted by the Government, or by parties acting in the name and by the authority of the Government. Until thus vacated it is conclusive, not only as between the patentee and the Government, but between parties claiming in privity with either by title subsequent.
The defendants do not question the genuineness of the grant to Leese and Vallejo, but its location. They contend that as to such location they are " third persons" within the meaning of the fifteenth section of the Act of March 3d, 1851, and as a consequence, that the patent is not evidence of such location against them. To determine this question, it is necessary to inquire into the nature of the title to the premises, which, it is alleged, they acquired by their subsequent grants; for the " third persons" within the meaning of the section referred to, who can controvert the location of a grant upon which a patent has issued, are those whose title to the premises patented not only accrued before the duty of the Government and its rights under the treaty attached, but whose title to such premises was at that date such as to enable them to resist successfully any subsequent action of the Government affecting it. ( Teschemacher v. Thompson , 18 Cal. 27; Waterman v. Smith , 13 Cal. 420.) The defendants claim under grants issued previous to the treaty, in 1847, by persons acting as municipal officers of the Pueblo of San Francisco. It is alleged that those officers possessed authority under the laws of Mexico, which were not abrogated during the military occupation of the country, to make grants of land within the limits of the pueblo--in other words, to transfer the title of the pueblo. We shall assume for the purposes of the present appeal that they did, in fact, possess such authority. But the political head of the department of California also possessed a like authority, and exercised it in numerous instances, as the archives of the country abundantly establish; and his authority was paramount--that is to say, its exercise could not be interfered with, or in any way defeated by any subsequent action of the pueblo or its officers. In Hart v. Burnett , 15 Cal. 549, this Court, in speaking of the grants of land made by the former Governors of California within the limits of pueblos, said: " The whole matter was subject to the control and discretion of the Governor and Territorial Deputation, and the official acts of such officers, within the general scope of their powers, are presumed to have been done by lawful authority." And in considering the general character of the right and title which a pueblo acquired to the lands which, within the limits of four square leagues, were susceptible of such acquisition, and after referring to various documents and authorities, this Court, in the same case, observed that those documents and authorities were sufficient to show that pueblos had such a right and interest in the lands within their limits that they could distribute, concede, or grant them in lots to individual settlers, " subject, in this as in all other matters, to the instructions and orders which might be given them by the superior authorities ." (15 Cal. 558.) A great number of grants issued by Alcaldes within the limits of the Pueblo of San Francisco have been before us at different times, and they have almost without exception referred to the authorities of the department as the source of the granting power exercised by them. This is the case in all the grants issued during the year 1847 which have been brought to our notice. Admitting the power of these de facto municipal officers to the fullest extent ever asserted by the present Court, it only extended to lands which had not been previously granted by the superior authorities of the department under the former government. Nor does it matter in any respect whether the grant of those authorities passed a legal or an equitable title. The moment they assumed the control of the property and passed any interest in the same, all granting power of the subordinate officers of the pueblo with respect to the property ceased.
When the grant to Leese and Vallejo passed from the Governor and was received by them, there still remained another proceeding to be taken for the investiture of a complete title. The proceeding was a judicial delivery of the possession. Under the Mexican system this proceeding was an essential ceremony where there was any uncertainty as to the precise bounds of the land granted. That there was such uncertainty in the bounds of the tract, as described in the grant in question, is manifest. The location of the line running from the Desembarcadero, or landing place, to the Playita, or little beach, is one source of uncertainty. That line might be run in several different directions, materially varying from each other, and yet run in each instance in a northerly course from the starting point. There are other sources of equal uncertainty. A delivery of judicial possession was therefore necessary. This proceeding involved a definite ascertainment of the land to be delivered, and for that purpose required a survey and measurement--in other words, a location of the land. The power of locating the land, as preliminary to its formal delivery, belonged to the Government, and could not be exercised by the grantees, at least so as to bind the Government. They took with full knowledge of the right and power of the former Government in this respect, and in strict subordination to them. It does not appear from the record whether that Government ever acted in the matter. Assuming that it did not, the right and power passed to the United States, and could be exercised by them in such manner and at such time as they might deem expedient. The defendants, as junior grantees, took their grants with this knowledge: that if the military occupation of the country cased, and the displaced Mexican authorities were restored, they would only take, if in that event they were allowed to take at all, in subordination to the action of those authorities in the location of the elder grant; and that if the United States permanently retained possession of the country, they would take in subordination to like action of the new Government. By the Act of March 3d, 1851, the new Government designated the manner and conditions under which the right and power of location would be exercised, and declared the effect which should be given to the proceedings had. The defendants, taking whatever interest they may possess in subordination to the future action of the Government, old or new, in determining the location of the elder grant, are in no position to question those proceedings. As the Government acted in this matter only through its appointed tribunals and officers, if it shall discover that imposition and fraud have been practiced upon them, and have produced a result which otherwise would not have been obtained, it may itself institute proceedings to vacate the confirmation and patent, and annul or correct the location. But unless the Government interferes in the matter, the defendants, as junior grantees, are remediless. Their title to the premises was not such at the date of the treaty as to enable them to resist the action of the Government in the location of the elder grant. They are not, therefore, " third persons" within the meaning of the fifteenth section of the Act of Congress.
The language of Mr. Chief Justice Taney in Fremont v. United States, 17 How. 558, to the effect that a subsequent grantee of a tract with specific boundaries, within the general exterior limits of the grant in that case, would have acquired a superior and better title than the original grantee, has no application. The grant in that case was of a specific quantity, lying within limits embracing a much larger quantity, and the Court gave as the reason for its language, that by the general grant the Government did not bind itself to make no other grant within the territory described, until the survey was made. In the case at bar, the grant is of a tract with designated boundaries, uncertain, it is true, in their character, and to be ascertained and fixed upon the surface of the earth by the Government, but embracing no surplus quantity to be the subject of other grants. There is no analogy between the two cases.
Judgment reversed, and cause remanded for a new trial.