and to which, it is insisted on the part of the government, he was never entitled.

I cannot conceive any reason why the judgment of the court should not be treated and respected as the action of a regular and competent tribunal, so far as presumption is concerned, whose jurisdiction must be reviewed only upon error or appeal, and whose decrees while unreversed are binding upon all parties and privies. This was held in McCormick v. Sullivant (10 Wheat., 192) and I am not aware that the doctrine as laid down has been modified. In speaking of proceedings which it was alleged were coram non judice, on account of a want of a sufficient showing of jurisdiction in the proceedings, the court say:

This reason proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction; but they are not on that account inferior courts in the technical sense of those words, whose judgments taken alone are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments are erroneous, and may upon a writ of error or appeal be reversed for that cause. But they are not absolute nullities.

And further on, the doctrine appears as stated in the syllabus, that "until reversed they are conclusive evidence between parties and privies."

The same doctrine is asserted with a full citation of authorities, in Grignon's Lessee v. Astor et al. (2 Howard, 319). On page 341 it is said that the jurisdiction of the courts of the United States

Is limited and special, and their proceedings are reversible on error, but are not nullities, which may be entirely disregarded (3 Peters, 205). They have power to render final judgments and decrees which bind the persons and things before them conclusively in criminal as well as civil causes, unless revised on error or by appeal.

And again:

There can be no judicial inspection behind the judgment save by ap pellate power.

And on page 342:

If the jurisdiction of the court in a civil case is not alleged in the pleadings the judgment is not a nullity, but though erroneous is ob ligatory as one (Peters, 206), and in a proceeding in rem an erroneous judgment binds the property on which it acts; it will not bind it the less because the error is apparent, and the judgement is of complete obligation (3 Peters, 207).

It seems unnecessary to add suggestions on this point. There is no power in this Department to review the decisions of the court in cases like the present. Those surveys not confided to the jurisdiction of the court are by the statute to be passed upon by the Commissioner of the General Land Office, while in court the United States is represented by the district attorney, and he is recited in the proceedings as present at the rendering of the decree. No appeal being taken by either party the same becomes final. It may have been erroneous for any other cause

as well as for want of jurisdiction, but it is not for the parties to complain. The law provided a remedy by appeal and none was sought. This Department should accept as final what was so regarded by the proper Department having charge of the interests of the government, and not arbitrarily attempt to review the proceedings or set them aside, at the request of the disappointed suitor.

The decision remanding the survey for further correction is reversed, and you will issue patent upon the same as finally approved by the United States district court.

PRIVATE CLAIM-CONTROL OF LOCATION.

RANCHO SAN JACINTO NUEVO Y POTRERO.

The location of a confirmed Mexican grant, within limits embracing larger quantity, may be controlled by the General Land Office, as against the selection of the confirmee.

In making the survey, however, reasonable and not arbitrary discretion should be exercised.

Acting Secretary Bell to Commissioner McFarland, February 17, 1882.

In view of the facts and considerations stated in your letter of September 17, 1881, respecting the survey of the Rancho San Jacinto Nuevo y Potrero, I directed, on November 19, 1881, a further survey to be made by said rancho, which should not embrace the land patented to Gustave Mahe in 1880, within the limits of the San Jacinto tract, and should also be within the O'Farrell survey of said San Jacinto rancho.

A motion is now filed by John Mullan, esq., in behalf of the confirmees of said rancho, for a modification of my said direction so that said further survey may include the lands (or a portion thereof) sold and patented to Mahe. The motion is based on the claim that the confirmees of said Jacinto Nuevo have the right to select the quantity confirmed to them, within the boundaries of the O'Farrell survey.

This claim is not well founded, in my opinion, as against the authority of your office to control the location. In the case of United States v. Armijo (5 Wall., 444) it was held that

Where a grant was for a specific quantity, within exterior fimits embracing a much larger quantity (as in the present case), there was no obligation on the part of the former government, nor is there any obligation on the part of the present government, to allow the quantity to be selected in accordance with the wishes of the grantee. The duty of the government is discharged when the right conferred by the grant to the quantity is attached to a specific and defined tract.

Under our system, the right of the grantee to direct a selection of the quantity granted is admitted, subject only to the restriction that the selection be made in one body and in a compact form. This right, we say, is admitted, though strictly it is not a right; it is only a privilege given by the generosity of the government. The exercise

of the right of selection given to the grantee is not permitted by the political authorities, and when a location is subject to the control of the courts, is never permitted by them so as to defeat the equitable prior rights of others.

That the General Land Office, and not the grantee, may select the confirmed lands for patent is held in the case of Van Reynegan v. Bolton (5 Otto, 33), in which the court says:

Even if the limitation to one square league (as in that case) should ultimately be held correct, that square league might be located in a different portion of the tract, by direction of the land department, to which the supervision and correction of surveys of private land claims are intrusted. The confirmees could not measure off the quantity for themselves, and thus legally segregate it from the balance of the tract. The right to make the segregation rested exclusively with the government, and could only be exercised by its officers.

These principles were adopted by Secretary Chandler in his decision of August 8, 1876, in the case of the survey of the California private land claim "Piedra Blanca," wherein he said, inter alia :

Whether it [the right of selection by a confirmee] be called a right or a privilege, it is subject to the control of the proper authorities for the protection of prior equitable rights, and, in my opinion, must be held subservient to the public good. The claimants are entitled to their full quantity of eleven leagues, but if the interests of the public require that it be located in a certain place, it is the duty of this Department to direct such location.

It seems well settled, therefore, by the decisions of the supreme court and of this Department that the location of a confirmed Mexican grant, within a tract embracing a larger amount, may be controlled by your office as against the selection of a location by the confirmee. The discretion of the officers, however, upon whom the duty of making the survey is imposed by law, should not be arbitrary, but should be reasonable,. and should be so exercised, in view of the record of the case, the situation of the land, the improvements and possession of the claimants, and all other circumstances proper and necessary to be considered, as to fulfill the requirements of the decree of confirmation according to its true intent, and thus do substantial justice as between the United States. and the confirmees.

I am advised that the sale to Mahe in 1870 was made after survey of the San Jacinto Nuevo grant, and after publication thereof without objection, and when apparently satisfied, so that the lands were supposed. to be subject to sale. The survey was afterwards found to have been prematurely made (the original San Jacinto grant being pending in the supreme court, not yet confirmed), and subsequently set aside, and a new survey directed; and hence the error in the sale to Mahe at the date thereof. It appears also that Mahe has conveyed portions of the land patented to him to other parties; and that also the confirmees may receive the quantity confirmed to them in a compact form without inter-fering with his and their interests.

Although the sale to Mahe may have been erroneous because the grant was prematurely surveyed, the original grant to Estudillo not having been confirmed until 1875, and the land embraced therein not being subject to settlement under the pre-emption or other laws for the disposal of the public domain, so long as the claim of the grantees remained undetermined, yet it is within the jurisdiction of your office so to control the selection and location of the grant lands that the rights of Mahe and his grantees may be preserved, as between them and the government, and at the same time the confirmees be secured in the quantity of land to which they are entitled. There is no inconsistency in thus harmonizing the application of the two rules.

The motion is denied, and the survey will be made as directed by my letter of November 19, 1881.

PRIVATE CLAIM-DECREE OF CONFIRMATION.

RANCHO EL SOBRANTE.

The translation of the original title papers, adopted in the decree of confirmation is the official translation, and cannot be changed in construing the decree. The term sobrante, means simply surplus; a grant for a "sobrante," is not a grant by name, necessarily including all the surplus of the tracts referred to; but is subject to words of limitation designating the particular location of the surplus granted.

As to boundaries and extent, the decree of confirmation must be the guide in making the survey.

Secretary Kirkwood to Commissioner McFarland, February 23, 1882.

I have considered, on appeal from the decision of your office of February 26, 1881, the matter of the survey of the California private land claim known as El Sobrante rancho, situate in the counties of Contra Costa and Alameda, and confirmed to Juan José and Victor Castro by the Board of Land Commissioners and the United States district court for the northern district of California, under the act of Congress approved March 3, 1851 (9 Stats., 631).

Such facts, appearing of record in your office, as are necessary to a proper understanding of the main questions presented for consideration, will be stated as briefly as practicable.

On the 26th of May, 1852, the said Juan José and Victor Castro, by their attorneys, H. W. Carpenter and John Wilson, filed in the office of the said Board of Land Commissioners a petition in which they set forth, among other things, that on the 22d of April, 1841, they presented their joint petition to Juan B. Alvarado, then governor of Upper California, "for a grant of all the vacant (sobrante, land lying between the ranches San Antonio, San Pablo, Pinole, Valencia, and Moraga, being the surplus or overplus left between the said ranches after the boundaries to the ranches" should "be ascertained and settled"; that "on the 23d of April, 1841, the said Alvarado, so being governor, and having

as soon as

should

full power and authority to do so, granted the land as prayed for in the said petition," and directed the petitioners "to appear anew before the proper authority with a map of the land so asked the boundaries of the ranches named in said petition be ascertained, regulated, and settled"; that they had always been ready to comply with the direction of the governor to present themselves anew to the proper authority, with a map of the land thus conceded to them, but that the boundaries of the ranchos named had not been ascertained and settled; that "the said Victor, several years before the date of the grant, had settled upon the land so granted them, had built and resided in a house, and cultivated fields thereon"; that both the petitioners "pastured their cattle, horses, etc., upon it," the land granted, "before the grant was made," and had continued to do so ever since; that the said Victor had "constantly since resided thereon," and had cultivated three different ranchos thereon, and had, for the last fourteen years (prior to presentation of the petition to the Board), "had and held (and which was known to the owners of the neighboring ranches mentioned in the grant . . . .) exclusive and continued possession thereof"; and the petitioners prayed that they might "be allowed to intervene in the cases arising out of the said ranches when the boundaries thereof" were to be investigated, so that justice might be done them and they obtain "all the vacant (sobrante) land lying between the said ranches after their boundaries are properly adjudged and regulated," and that their grant might be confirmed and made valid to them "according to the full intent of the grant at the time the same was made." (Record of Petitions, vol. 1, p. 460, et seq., Land Commission of California.)

On the same day, to wit, May 26, 1852, the Castros filed another petition, in which they represented, as before, that they had petitioned for a grant April 22, 1841, of" all the vacant (sobrante) land lying in between the ranches of San Antonio, San Pablo, Pinole, the ranch of Valencia and the ranch of Moraga, being the overplus lying between these several ranches, which lie in the county of Coutra Costa "; that on the 23d of April, 1841, the governor granted the same to them, "as they petitioned," and directed them to "present themselves anew before the proper authority, accompanied by a map of the land so granted, so soon as the boundaries of the ranches named should be ascertained and settled; . . . . . but that the boundaries of the said ranches" had never been ascertained and settled. They therefore prayed the Board to ascertain and settle said boundaries, and then they would comply with all their duty in the premises. They also stated that they would prove that they had been "in the actual possession of said (sobrante) or va cant land so granted them ever since the date of the said graut," and that they had "had on it a large stock of cattle, horses, sheep, etc."

They further alleged that the grant had not been approved by the departmental assembly, "because the boundaries of the adjoining