Opinion of the Court. vey made November 24, 1841, and following days, in the presence of Marcello Bonilla, the coterminous owner, by which survey the land was segregated from the public domain." But Ignacio Lopez was not a judicial officer, and had no authority to perform a judicial act; neither Lopez nor the attending witnesses nor the grantees were, on the seventh of January, 1843, upon the land, nor anywhere near it, but were at the city of Arizpe; the coterminous proprietors were none of them then called to give assent to the final act investing the grantees with title and possession, and there was, of course, no physical act on the part of the grantees accepting or taking possession of the grant. The attempt of counsel is to make out the act of juridical possession by reference to the date of the survey, which was more than a year before the land had been sold, bought, and paid for; nor was there at that time any pretence of the formal delivery of possession if it could have been done by anticipation. The application, it will be remembered, was for a resurvey of Casita, as well as for a survey of the public land sought to be acquired, and it appears from the expediente that the mission of Tumacacori and Calabazas was represented by Don Marcelo Bonilla on that occasion. And Navamuel also says that "in this manner was terminated the survey of the vacant public lands, which include seven and one half sitios, and the party, when it was made known to him, was satisfied and understood the area it encloses and was warned to place, at the first opportunity, fixed monuments of stone and mortar." But it still remained for the property to be sold and purchased, and possession to be taken, and though the applicant had the preference at the price fixed by the appraisement, a higher bid would have taken the property. Nor are we prepared to accede to the suggestion that because, in the final execution of the grant, the purchasers were cautioned "to restrict and limit themselves to the land, holdings, metes and bounds particularly described in the herein before inserted proceedings of survey," and to comply with the law as to monuments at their boundary termini, therefore it is to be inferred that the act of juridical possession Opinion of the Court. had already taken place though not disclosed by Navamuel's report. The seven and one half sitios could undoubtedly have been located, juridical possession delivered, and monuments of stone and mortar put up, and the grantees would then have been limited to their metes and bounds thus ascertained; but the grantees did not do this, and, so long as these public lands remained in Mexico, were liable on resurvey to account for the excess over what they actually bought on such terms as the government imposed. We have referred to the proceedings of 1882, 1886, in Mexico as furnishing persuasive evidence of the proper construction of this grant under Mexican law, and it may be further observed that the adjudication of the overplus required the location of the seven and a half sitios, which location Mexico, as the granting government, assumed it had the right to make, and made, out of the land within its jurisdiction. In this way the grant was satisfied by the receipt of all that the grantees had bought and were entitled to under the Mexican law, the result as to the overplus enuring to Camou's cotenants by the terms of his petition. In any view no reason is perceived for disregarding the construction thus put upon the titulo, and as the land purchased was not located at the date of the cession, the United States were not bound by the treaty to recognize the claim as of right, nor could the Court of Private Land Claims confirm it. The fact that a parallelogram of 340 cordels by 222 cordels, making seven and one half sitios and two caballerias, if correctly measured from the initial point of Navamuel's survey, would be partly within the Territory of Arizona, is immaterial. Decree affirmed. MR. JUSTICE PECKHAM was not a member of the court at the time this case was argued, and took no part in its decision. No. 769. Submitted January 18, 1896. - Decided March 2, 1896. As a claim of invention, made in an application for a patent, is a right incapable of being ascertained and valued in money, no appeal lies to this court from a judgment of the Court of Appeals for the District of Columbia, affirming the decision of the Supreme Court of the District that the applicant was not entitled to a decree, under Rev. Stat. § 4915, authorizing the Commissioner of Patents to issue a patent to him for his alleged invention. THIS was a bill brought by Caleb W. Durham, under the provisions of section 4915 of the Revised Statutes, in the Supreme Court of the District of Columbia, to obtain a decree authorizing the Commissioner of Patents to issue a patent to him for an improved drainage apparatus for buildings. The Supreme Court adjudged on the evidence that Durham was not entitled to a decree, and dismissed the bill, whereupon he carried the case by appeal to the Court of Appeals for the District of Columbia, and that court affirmed the decision of the court below. From this decree an appeal was taken to this court, and a motion was made to dismiss the appeal for want of jurisdiction. Section 4915 is as follows: "Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant. may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the require Counsel for Parties. ments of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not." Section 8 of the act establishing the Court of Appeals of the District of Columbia and for other purposes, approved February 9, 1893, c. 74, 27 Stat. 434, provides: "SEC. 8. That any final judgment or decree of the said Court of Appeals may be reëxamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in all causes in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as heretofore provided for in cases of writs of error on judgments or appeals from decrees rendered in the Supreme Court of the District of Columbia; and also in cases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States." The act of March 3, 1885, c. 355, 23 Stat. 443 reads thus: "That no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the Territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars. "SEC. 2. That the preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute." Mr. Levin H. Campbell for the motion. Mr. J. Nota McGill and Mr. Don M. Dickinson opposing. Opinion of the Court. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Appeals to this court from the Court of Appeals of the District of Columbia are governed by section 8 of the act of February 9, 1893. It is essential to our jurisdiction that it should appear that the matter in dispute in the courts below was money to an amount exceeding five thousand dollars exclusive of costs, or some right, the value of which could be ascertained in money and exceeded that sum; or that the validity of a patent or copyright was involved; or that the validity of a treaty or statute of or an authority exercised under the United States was drawn in question. South Carolina v. Seymour, 153 U. S. 353, and cases cited. The question here was whether Durham was "entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear." What Durham sought was to obtain an adjudication authorizing the Commissioner of Patents to issue a patent to him, and the matter in dispute was whether Durham was entitled to a patent as for a patentable invention. Durham had presented his application for a patent, filed in due form, to the Commissioner of Patents in accordance with section 4888 of the Revised Statutes, which application was rejected by the Commissioner, and thereupon he appealed to the Supreme Court of the District of Columbia in general term, which affirmed the decision of the Commissioner. He then filed this bill in equity in accordance with section 4915 of the Revised Statutes, and although, as remarked by Mr. Justice Blatchford, in Gandy v. Marble, 122 U. S. 432, 439, it "is a suit according to the ordinary course of equity practice and procedure, and is not a technical appeal from the Patent Office, nor confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced upon the whole merits, yet the proceeding is, in fact, and necessarily a part of the application for the patent." Considered in this light it is clear that the validity of a patent was not involved. And we may add that it appears to us to be quite |