United States v. San Jacinto Tin Co., 125 U.S. 273 (1888)

The suit in this case, which was a bill in chancery filed April 10,1883, in the Circuit Court for the District of California, purports to be brought by the Attorney General on behalf of the United States against the San Jacinto Tin Company, the Riverside Canal Company, and the Riverside Land and Irrigating Company. These corporations are alleged to be in possession of a large body of land, nearly eleven square leagues in extent, for which a patent was issued by the United States on the 26th day of October, 1867, to Maria del Rosario Estudillo de Aguirre, and her heirs and assigns. The object of the bill is to set aside this patent, and have it declared void, p. 275upon the ground that the land described in the survey, which description is a part of the patent, is not the land granted by the Mexican government to said Maria, nor that which was confirmed to her under the proceedings before the land commission, and by the judgment of the District Court of the United States, and by this court also on appeal. The essential feature of the grievance relied on by the complainant is, that this survey was thus located by fraud to include different and more valuable land than that granted by Mexico and confirmed by the courts, and on account of this fraud it is prayed that the survey and patent be set aside and annulled.

The bill sets out a grant to one Maria del Rosario Estudillo de Aguirre of the surplus or “sobrante” of the Ranchos of San Jacinto Viejo y Nuevo, or the overplus which remains in the Ranchos of Old and New San Jacinto, the survey thereof to commence from the boundaries of Don J osé Antonio Estudillo and Don Miguel Pedrorena. It alleges that this grant was afterwards confirmed by the District Court of California on appeal from the land commission. Upon an appeal taken from that court to the Supreme Court of the United States its judgment was affirmed. The decision of the land commission p. 276was to the effect that the claimant was entitled to five square leagues of land within this sobrante or surplus. The District Court, however, held that the claimant was entitled to eleven square leagues, if so much should be found within the sobrante, and to all that was found therein if it were less than that amount.

The principal points upon which this fraud is said to rest are, that the land surveyed was not within the larger exterior boundaries out of which the sobrante of San Jacinto Viejo y Neuvo was to be taken, but that said survey described a tract p. 277of land of about the same extent, to wit, of about eleven square leagues, situated more than six miles at the nearest point, and more than twenty miles at the farthest point, away from the land in fact granted and conceded by Pio Pico, governor, to the grantee; that the survey of said land was never made in the field, nor from any actual measurements of distances or observation or determination of courses in the field, as the law of the land department required, nor according to the directions of the decree confirming said grant; that the plat and survey were made arbitrarily and without any actual data in the office of the Surveyor General of the United States for California, under the direction and dictation of that officer and one Edward Conway, then chief clerk in charge of that office, and performing the duties of Surveyor General, and by one George H. Thompson, a deputy surveyor acting under the Surveyor General and the chief clerk; that it was so made up without any reference to the expediente that accompanied the grant or juridical possession given at the time of the grant, or to the decree, but that it was made solely with reference to securing, surreptitiously and fraudulently, letters-patent for the land included and described within the said survey and plat, although the same lies outside of the boundaries of the tract called San Jacinto; that the land so surveyed and platted was at that time supposed by said Surveyor General and Edward Conway to contain, and did in fact contain, valuable lodes of tin and other mineral ores, and that all this was well known to the defendant, or to persons composing its stockholders, at the time the patent was issued.

It is quite true that the Revised Statutes, in the title which establishes and regulates the Department of Justice, simply declares, in § 346, that “ there shall be at the seat of government an Executive Department to be known as the Department of Justice, and an Attorney General, who shall be the head thereof.” There is no very specific statement of the general duties of the Attorney General, but it is seen from the whole chapter referred to that he has the authority, and it is made his duty, to supervise the conduct of all suits brought by or against the United States, and to give advice to the President and the heads of the other departments of the government. There is no express authority vested in him to authorize suits to be brought against the debtors of the government, p. 279or upon bonds, or to begin criminal prosecutions, or to institute proceedings in any of the numerous cases in which the United States is plaintiff; and yet he is invested with the general superintendence of all such suits, and all the district attorneys who do bring them in the various courts in the country are placed under his immediate direction and control. And notwithstanding the want of any specific authority to bring an action in the name of the United States to set aside and declare void an instrument issued under its apparent authority, we cannot believe that where a case exists in which this ought to be done it is not within the authority of that officer to cause such action to be instituted and prosecuted. He is undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States, and of the litigation which is necessary to establish the rights of the government.

If the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief by setting aside or annulling any of its contracts, its obligations, or its most solemn instruments, the question of the appeal to the judicial tribunals of the country must primarily be decided by the Attorney General of the United States. That such a power should exist somewhere, and that the United States should not be more helpless in relieving itself from frauds, impostures, and deceptions than the private individual, is hardly open to argument. The Constitution itself declares that the judicial power shall extend to all cases to which the United States shall be a party, and that this means mainly where it is a party plaintiff is a necessary result of the well-established proposition that it cannot be sued in any court without its consent. There must, then, be an officer or officers of the government to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases. The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervision and control of the Attorney General. How, then, can it be argued that if the United States has been deceived, p. 280entrapped, or defrauded into the making, under the forms of law, of an instrument which injuriously affects its rights of property, or other rights, it cannot bring a suit to avoid the effect of such instrument, thus fraudulently obtained, without a special act of Congress in each case, or without some special authority applicable to this class of cases, while all other just grounds of suing in a court of justice concededly belong to the Department of Justice, and are in use every day? The judiciary act of 1789, in its third section, which first created the office of Attorney General, without any very accurate definition of his powers, in using the words that “ there shall also be appointed a meet person, learned in the law, to act as Attorney General for the United States,” 1 Stat. 93, c. 21, § 35, must have had reference to the similar office with the same designation existing under the English law. And though it has been said that there is no common law of the United States, it is still quite true that when acts of Congress use words which are familiar in the law of England, they are supposed to be used with reference to their meaning in that law. In all this, however, the Attorney General acts as the head of one of the Executive departments, representing the authority of the President in the class of subjects within the domain of that department and under his control.

In United States v. Throckmorton, 98 U. S. 61, 70, the court said: “ In the class of cases to which this belongs, however, the practice of the English and the American courts has been to require the name of the Attorney General as indorsing the suit before it will be entertained. The reason of this is obvious, namely, that in so important a matter as impeaching the p. 282grants of the government under its seal, its highest law officer should be consulted, and should give the support of his name and authority to the suit. He should also have control of it in every stage, so that if at any time during its progress he should become convinced that the proceeding is not well founded, or is oppressive, he may dismiss the bill.”

In the second case United States v. Minor, 114 U. 8. 233, 241, a suit was brought in the Circuit Court for the District of California to set aside a patent for land issued by the government to Minor. The bill alleged that the patent was obtained by the fraud of Minor in making false affidavits and procuring others to be made before the officers of the land department, by which he obtained the patent for the land in question. Although the case was certified here by the judges sitting m that court on a division of opinion upon several points, one of which was whether a demurrer to the amended bill should be sustained, no question seems to have been made of the right p. 283of the government by its Attorney General to institute this suit; the appeal on behalf of the United States being argued by the Solicitor General, an officer under the control of the Attorney General.

In the still later case of The Colorado Coal de Iron Company v. United States, 123 U. S. 307, the bill was filed in the name of the United States by the Attorney General to declare void and cancel sixty-one patents for as many distinct pieces of land, situated at different places in Las Animas County, m the State of Colorado, amounting in the aggregate to over nine thousand acres. The allegation in that case was, that the patent had been obtained by the fraudulent use of fictitious names as grantees of the land, and the case was fought through with great vigor on both sides. It was thoroughly and elaborately considered, and the court said, in regard to these transactions, that they “ undoubtedly constituted a fraud upon the United States sufficient in equity as against the parties perpetrating it, or those claiming under them with notice of p. 284it, to justify the cancellation Of the patents issued to them,” quoting the following language from. United States v. Minor, above cited: “ Where the patent is the result of nothing but fraud and perjury, it is enough to hold that it conveys the legal title, and it would be going quite too far to say that it cannot be assailed by a proceeding in equity and set aside as void, if the fraud is proved and there are no innocent holders for value.”

We do not think, therefore, that it can be successfully denied that there exists in the Attorney General, as the head of the Department of Justice, the right to institute, in the name of the United States, a suit to abrogate, annul, or set aside a patent for land which has been issued by the government in a p. 285case where such an instrument if permitted to stand would work serious injury to the United States, and prejudice its interests, and where it has been obtained by fraud, imposture, or mistake.

But we are of opinion that since the right of the government of the United States to institute such a suit depends upon the same general principles which would authorize a private citizen to apply to a court of justice for relief against an instrument obtained from him by fraud or deceit, or any of those other practices which are admitted to justify a court in granting relief, the government must show that, like the private individual, it has such an interest in the relief sought as entitles it to move in the matter. If it be a question of property a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud which would render the instrument void, the fraud must operate to the p. 286prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be benefited to sustain an action for his use; in short, if there does not appear any obligation on the part of the United States to the public, or to any individual, or any interest of its own, it can no more sustain such an action than any private person could under similar circumstances.

When the Attorney General required that a bond should be given to save the United States harmless with regard to the costs of these proceedings, Baker was the man who furnished the security and signed the bond himself. The condition inserted in that obligation recited “ that whereas the Attorney General of the United States of America has this day filed, at the request of the above-named 1?. 8. Baker, a bill in equity w p. 287the name of and on behalf of the United States of America against the San Jacinto Tin Company: . . . Now, therefore, if the said Baker shall well and truly save the United States of America harmless from all costs and expenses which may be incurred by or against them in the prosecution of said suit to its final determination, and pay or cause to be paid on demand all such costs and expenses as may necessarily be incurred in such prosecution, then this obligation to be void.” Taking all these circumstances together, it raises a very strong implication that Baker expected that if the patent was set aside his right to the land covered by it, or to a large part of it, would become paramount.

There is a statement in the decree that the measurement of the land thereby confirmed is to be commenced from the line of the Estudillo grant as fixed by the act of judicial possession to him, to which reference is made. We consider this last description as nothing more than a statement that the land of Estudillo previously granted within the boundaries of the tract called San Jacinto shall be one of the boundaries of the p. 288claim thus confirmed, and that the survey must not cover the grant to Estudillo. Reference is also made to a map contained in the expediente among the papers before the court.

Mr. Edward Conway, who had previously bought the property and received the conveyance of the title from the claimant before the patent issued, asserts in his testimony that at the time the survey was made and was pending before the Land Office he was the only owner of the property, and that no one had any interest, equitable or otherwise, in it but himself. After this he organized a corporation, to which the title of the property was conveyed, which undertook to work the tin mines found upon it, and most of these persons so p. 289liberally charged with fraud in the survey are those who became stockholders therein.

Throughout the whole of this story the early connection of Hancock and Conway with the sobrante claim seems to have been under a right purchased by Hancock from Mrs. Aguirre of the mineral products thereof, without any claim to a general grant of the land. The witness Conway says that Surveyor General Beale told him, upon being informed of the above facts, that they constituted no objection to his remaining m the office, and that he did not wish to part with him. He says: “I told him I felt a little delicacy about it, and he p. 291answered that he would look out for the interest of the United States. When Surveyor General Upson came into office I informed him of the circumstances; that I was interested, not in the rancho, but in the veins of metals that were supposed to be there; told him that I wished to have nothing to do with the survey — to have no connection with it — and any reports he wished on the matter he must get from other officers. Tn April, 1866, the owner of the sobrante offered it for sale for 88000; I think it was $3000 cash and $5000 on time on a mortgage.”

It further appears from his testimony that the survey having been forwarded to the department at Washington, it was there decided that the act of June 2, 1862, 12 Stat. c. 90, 410, under which the survey was made did not apply to California, and it was returned to the office in San Francisco, with instructions, the act of July 1,1864,13 Stat. c. 194, 332, having been passed ln the meantime, to have it advertised according to the provisions of that statute. By this act the survey and its plat p. 292and field-notes were to be open for public inspection for ninety days after the expiration of the four consecutive weeks of publication which was provided for; then if objections were made to the survey within that time by any party claiming to have an interest in the tract embraced by it, or in any part thereof, they were to be reduced to writing, stating distinctly the interest of the objector, and signed by him or his attorney, and filed with the Surveyor General, together with such affidavits or other proofs as he might produce in support of the objection ; and at the expiration of said ninety days the Surveyor General was bound to transmit to the Commissioner of the General Land Office at Washington a copy of the survey and plat, with the objections and proofs filed in support of them, and also copies of any proofs produced by the claimant, all of which the Commissioner was to examine into, and approve the survey or return the same for correction. All this Conway testifies was done. He says: “ Exceptions were taken to the survey by Abel Stearns, the owner of the Sierra Rancho on the north, and of the rancho that he claimed as the Temescal on the west. Surveyor General Upson ordered the survey reformed in order to leave space on the north for the Sierra, according to the juridical possession, of one league in width from the Santa Ana River.” In all this the witness is confirmed by the records of land offices.

“ I made my first purchase of an interest in this sobrante on p. 293the 3d of April, 1866, the only purchase I made; . . . I purchased it from Manuel Ferrer and his wife, Maria del Rosario Estudillo de Aguirre. She was the original grantee of the rancho. Her husband joined with her in the deed. No person was interested with me in that purchase, either before or upon the receipt of the deed, except Mr. Hosmer, as I before stated. That was the only interest except my own. I had that deed recorded in the office of the county recorder of San Bernardino County on the 30th of April, 1866. From April 3d, 1866, until April 30th, 1866, I was in San Francisco. The deed was executed in San Diego and sent up to me, and I sent it down for record immediately. ... In addition to myself and Mr. Hosmer, no person except Jeremiah S. Black and Williain H. Lowery, attorneys-at-law, of Washington, were interested in that sobrante subsequent to the date of that deed, April 3, 1866, and prior to the date of that patent.”

This was the period during which the survey was pending in the office of the Commissioner having charge of public lands, awaiting his approval, and witness says that during that period no interest in the sobrante wag held in trust for any other person, to his knowledge, except those mentioned; that Black and Lowery were his attorneys in the case of the Rancho Sobrante San Jacinto before the Commissioner of the General Land Office, and the Secretary of the Interior, and the consideration which they paid for the interest which he, Conway, held for them was their service as attorneys in the matters mentioned. He further says that he resigned his position in the Surveyor General’s Office about December 10, 1866, and proceeded to Washington, returning in December, 1867. He then goes on to recount his acquaintance in that city with Joseph H. Wilson, Commissioner of the General Land Office, and several other persons mentioned, and to deny that either or any of them were interested with him in any manner whatever in the sobrante, by purchase or otherwise, directly or indirectly, before his return from Washington on that occasion. He proceeds to say in the further history of the matter that when he returned from Washington, in December, 1867, he thought it best to form a corporation for the p. 294purpose of working the ores in the mines, and offered interests to gentlemen whom he thought responsible, and calculated to further the joint .interests of the corporation; that on the 3d day of January, 1868, the corporation was formed, and became the owner of the property; that it agreed to pay off the mortgage, assume the indebtedness to Hosmer and pay him, Conway, $7500, and allow him to retain a certain number of the shares of its stock, which he afterwards states to be about one-sixth of the sum at which it was capitalized; and that all this wras done.

In regard to this particular transaction he states that he was in that office, in the capacity of keeper of the archives, in 1864, when the survey was made which is the subject of controversy, at which time Mr. Beale was Surveyor General; that he saw the written application made by Hancock, through Patterson, for a survey of the rancho at that time, and probably wrote the instructions for it to be made. Upon being asked who was the deputy surveyor who made the survey, he said that it was George H. Thompson. He was then asked, “ By whom was he selected ? ” to which he replied, “ I don’t know, but I presume that the Surveyor General appointed him on his own motion; ” and proceeded to say that the instructions were signed by the Surveyor General. He was then asked, “ Was there any person in the Surveyor Generals p. 295office at that time who had any interest in this grant ? ” to which he replied, “ To my knowledge, no.” The inquiry was then made, “ Do you know of any reason, object, or purpose in locating that grant on the part of anybody in the office other than to locate it according to the decree of confirmation ? ” to which he answered, “ I do not.” “ Had you any interest in this matter before the issuance of patent?” To this he replied, “ No, sir; neither directly nor indirectly.” He was then asked if either Upson or Beale, the Surveyors General, or Wilson, the Commissioner of the General Land Office, or Thompson, the deputy who made the survey, or Whiting, had any interest in the claim prior to the issuance of the patent; to which he answered in each case that they had not.

He also testifies, that, with the fullest knowledge of the surveys and papers, and after an examination of the records in the office at San Francisco, it seems to him that it would be impossible to attempt to locate the rancho in any other way so as to conform to the decree of the court, and that this land is located within the general limits of the tract called San Jacinto, and did conform to that decree. Upon being asked if it was possible for him to be mistaken about this matter, he replied : “ I don’t think so; it is a question of landmarks that are unmistakable in their location, having historical names; it is hardly a matter in which judgment is to be much exercised, but is a matter of fact; at least, I looked upon it at that time as such, when I made this report.” To the question, “ Was that location made arbitrarily, without reference to courses or distances, or under the direction or dictation of Conway ? ” he answered: “ I think it was made under the instructions of the Surveyor General; I presume, without any dictation from any one. There were probably some instructions to follow, p. 296when public lands were surveyed, the lines of the public surveys. . . . That survey, I presume, was made in accordance with the decree of the District Court, and with all the data that could be obtained.”

Without going farther into the minutiae of the testimony on this subject, we are of opinion that there is no evidence that establishes any interest in the claim under consideration prior to the issuance of the patent in any man who was connected with the land department of the government, whether as Surveyor General, deputy surveyor, clerk, or otherwise, except Conway; that Conway’s interest was well known to the Surveyors General, who at different times had charge p. 297of this matter, as well as to the Commissioner of the General Land Office, and the Secretary of the Interior who finally passed upon it, and that he abstained from any interference with the making of the survey or the officers who had it in charge, except that probably while he was in Washington he looked after its confirmation.

We do not hesitate to say that there is a total failure of evidence to establish any participation in this fraud on the part of any of the persons in the service of the government, p. 298who are charged with having been engaged in it. While we do not wish to give countenance to the idea that an officer of the government, before whom any matter may come for his action, or to be acted upon in his office, should voluntarily acquire an interest in such matter, even though he disclose that interest, but, on the contrary, think that he should accept no such delicate position; nevertheless that circumstance alone should not be permitted to divest the rights of others, unless it be shown that such position was used in aid of an actual fraud.

The strongest argument against the commission of any fraud, and in favor of the correctness of the location of the grant by the survey, is to be found in the fact that it went through all the different offices in the land department to which it could possibly be taken, from its being filed by Thompson in the office of the Surveyor General up to its consideration by the Secretary of the Interior himself, and in all these offices ample time was given for careful examination, and an actual scrutiny of the matter was made by reason of the contest of Stearns, who succeeded in having the lines of the survey changed, so as to exclude property in which he was interested. After this change was made, it was again brought before the Commissioner and argued by counsel on both sides, and considered in the light of all the facts which either party chose to bring before the office, and abundant time was given for its investigation. Mr. Wilson, the Commissioner, was a man of many years’ experience in the class of cases to which this belongs, and which he was then-called upon to decide. He made a full p. 299report, which is in the record, to the Secretary of the Interior, Hon. 0. H. Browning, a lawyer of eminence and a man accustomed to weighing testimony, who, after having the case under consideration from May 22, 1867, to October 19 of the same year, made the following decision, which he referred back to the Commissioner of the General Land Office for execution:

With regard to the question of fraud, we have no hesitation in saying that there is no such case made of intentional fraud, or actual fraud, committed upon the government of the United p. 300States in this transaction as justifies the cancellation of the patent. We have quite recently given our views upon this subject very freely in the Maxwell Land Grant Case, 121 U. 8. 325, in regard to the character of the testimony necessary to set aside such a solemn instrument as a patent of the United States. It was there held, p. 381, “ that when in a court of equity it is proposed to set aside, to annul, or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt. If the proposition, as thus laid down in the cases cited, is sound in regard to the ordinary contracts of private individuals, how much more should it be observed where the attempt is to annul the grants, the patents, and other solemn evidences of title emanating from the government of the United States under its official seal.”

As regards the correctness of the location by survey of the grant, whose validity and justice is not questioned, we do not know that we can do better than to copy the language of the circuit judge presiding when the decree was rendered. In his opinion delivered on that occasion, and concurred in by the district judge, he said: “ It is confidently assumed on the part p. 301of complainant that the location of the lands patented is palpably wholly outside of the exterior limits described in the original petition, Mexican grant, and the decree of confirmation; that this is so obvious that the grant must have been wilfully and fraudulently located where it is. This is an assumption that, in our judgment, is wholly without justification in the documentary and other evidence in the case. Upon a careful consideration of the subject we are of the opinion that the most that can be reasonably said against the location is, that the record presents a fair case for an honest difference of opinion; that a plausible argument can honestly be made in support of either side of the proposition. An erroneous location is certainly not so obvious as to necessarily stamp it as a fraud.”

I concur in affirming the decree of the court below dismissing the bill in this case. The bill was filed to set aside a patent of the United States issued to Maria del Rosario Estudillo de Aguirre, and her heirs, for land situated in Southern California, in what is now known as San Bernardino County, granted to her by the Mexican government. The grant was p. 302of the sobrante, or surplus lands remaining within the bounda ries of a tract called San Jacinto, after satisfying two previous grants. The claim under it was presented to the Board of Land Commissioners created by the act of Congress of March 3, 1851, 9 Stat. 631, c. 41, to ascertain and settle private land claims in California, and was adjudged to be valid to the extent of five leagues. On appeal to the District Court of the United States for the Southern District of California, the claim was confirmed to the surplus land lying within the designated boundaries, not exceeding in extent eleven square leagues. The case being brought to this court, the latter decree was affirmed. The judgment here was rendered at the December term, 1863. Then followed a protracted contest, accompanied with much feeling, for the location of the claim. There being within the San Jacinto tract a tin mine, then supposed to contain a rich body of metal, every step in the survey was contested. Witnesses were examined, and repeated arguments made by counsel representing the parties for and against the location sought. As there were no boundaries of the sobrante marked, by which the claim could be specifically designated, much was left to the judgment of the Surveyor General, after having examined the topography of the country, and heard the statements of witnesses familiar with it. The limitation made by the grant itself only required that the claim should be located within the exterior boundaries of the San Jacinto, and not encroach upon the land covered by the previous grants. In the determination of the survey and location several years were occupied. The matter was at different times before all officers of the Land Department whose judgment could control any of the several steps of the proceedings, the United States Surveyor General for the State, the Commissioner of the General Land Office, and the Secretary of the Interior. Every objection now urged against the survey as ground for revoking the patent was taken before them, fully argued, and held to be untenable. At length, on the 26th day of October, 1867, a patent was issued to the claimants, from whom the defendant, the San Jacinto Tin Company, derives its title.

If this were a solitary instance where the name and power of the United States have been used to serve the interests of private parties, it might be passed by with the simple statement of the facts. But, unfortunately, it is not a solitary p. 304instance. The records of this court show that it has been a frequent practice of the Department of Justice in authorizing suits for the cancellation of patents. In United States v. Throckmorton, 98 U. S. 61, which was here at the October term, 1878, it appeared that the District Attorney of California was directed by the Attorney General to bring suits to vacate patents for lands in that State, upon security being given by one John B. Howard, or a deposit made by him of a sufficient sum to defray the expenses which might be incurred in the litigation; and the bills filed upon such authority were not sworn to, nor even authenticated by the signature of the Attorney General. In this case the bill bears the signature of the Attorney General in office at the time it was filed. His signature gives some assurance, which was wanting in the Throckmorton case, of his belief in its allegations, and that the suit is really brought by the United States to protect their rights, and not merely to promote the interests of private individuals. In that and other cases, brought on the authority of the Attorney General, the patents embraced many thousand acres of land, and one of the judges holding the Circuit Court observed that: “ It is not to be supposed that if the Attorney General were persuaded that so large and valuable a property belonged to the United States he would have made the assertion of its rights to depend upon the willingness or ability of urivate individuals to defray the expense of the litigation.” United States v. Flint, 4 Sawyer, 42, 83. In the present case the bill seeks, by setting aside a patent of the United States, to restore eleven leagues of land to the public domain. And yet, so doubtful did the Attorney General appear to consider the rights of the United States to this vast tract, that he required from the party, at whose instance the suit was brought, a bond of indemnity against the expenses of the proceeding.

In commenting upon a similar bond, when the case of Throckmorton was here, the court, speaking by Mr. Justice Miller, said: “ It would be a very dangerous doctrine, one threatening the title to millions of acres of land held by patent from the government, if any man who has a grudge or a claim p. 305against his neighbor can, by indemnifying the government for costs, and furnishing the needed stimulus to a district attorney, institute a suit in chancery in the [name of the] United States to declare the patent void. It is essential, therefore, to such a suit, that, without special regard to form, but in some way which the court can recognize, it should appear that the Attorney General has brought it himself, or given such order for its institution as will make him officially responsible for it, and show his control of the cause.” p. 71. And yet this requirement does not seem to have been potential enough to induce such an examination of the rights of the United States as to justify in the present case the attempt to enforce them without security from private parties.

But independently of these considerations I cannot assent to the position announced in the opinion of the court, that the Attorney General has unlimited authority by virtue of his office to institute suits to set aside patents issued by the government. He is the head of the Department of Justice, and as such he is charged with the superintendence and direction of all district attorneys of the United States, and generally of all litigation in which the United States are interested. He is also the legal adviser of the heads of the executive departments, and if they are fraudulently imposed upon in the discharge of their duties, or have mistaken the law, he may at their request take such legal proceedings as are necessary to correct their errors and revoke their action. The legislation of Congress points out the infinite variety of cases where legal proceedings may be taken on behalf of the United States in the enforcement of their rights, the protection of their property, and the punishment of offences, and wherever no authority is conferred by statute express or implied for the institution of suits, none in my judgment exists. Whenever Congress has felt it important that patents for lands should be revoked, either because of fraud in their issue, or of breach of conditions in them, it has not failed to authorize legal proceedings for that purpose. In a multitude of cases titles to lands, upon which whole communities live, rest upon patents of the United States. In several instances, cities having more than a hundred thousand people residing within their limits are built on land patented by the government. I cannot believe that it is within the power of the Attorney General, to be exercised at any time in the future, this generation or the next — as no p. 307statute of limitations runs against the government — to institute suits to unsettle the title founded upon such patents, even where there are allegations of fraud in obtaining them. There must be a time when such allegations will not be heeded. The examination into alleged frauds, when the patents are applied for, ought to close all controversy respecting them ; clearly so, unless, upon newly discovered evidence of the most convincing character, Congress should direct proceedings to be instituted to set aside the patents, and that result can be obtained without impairing the title of innocent parties. The power of the Attorney General, if admitted when a single person holds title under a patent, may be exercised in cases where a whole community holds under a similar instrument. If, without the authority of Congress, such proceedings may be instituted by him upon the repetition, as in this case, of old charges, or upon the unsupported statements of interested parties, a cloud may at any moment be cast upon the titles of a whole people and there would be in his hands a tremendous weapon of vexation and oppression. I can never assent to the position that there exists in any officer of the government a power so liable to abuse and so dangerous to the peace of many communities.

In the case of The Floyd Acceptances, 7 Wall. 666, 676, speaking of the powers of an officer of the government — in that case of the Secretary of War — this court said: “When this inquiry arises, where are we to look for the authority of the officer? The answer which at once suggests itself to one familiar with the structure of our government, in which all p. 308power is delegated, and is defined by law, constitutional or statutory, is, that to one or both of these sources we must resort in every instance. We have no officers in this government, from the President, down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority.”

The plaintiff below, Packer, brought an action of ejectment to recover from the defendant below, Clement, one hundred and twenty acres of land located in Mount Carmel Township, Northumberland County, Pennsylvania. He claimed this 120 acres as part of a tract of land surveyed in October, 1794, under a warrant dated 26th of November, 1793, issued in the name of William Elliott, the title to which was in him, the plaintiff. On the trial he adduced evidence, showing that this William Elliott tract was one of six tracts of a block of surveys — a term which, under the Pennsylvania land system, means a series of surveys made by one surveyor at the same time upon warrants issued upon the same day, owned by the same person, dependent upon each other in succession, calling for each other, and returned to the land office at the same time, and so located on the ground that the tracts each adjoin the other side by side as a body. In that State the warrant and survey thereon and the return of the survey constituted the legal mode of acquiring lands from the Commonwealth. The block just mentioned was known as the Le Fevre block, and the tracts composing it were designated by the names of the persons to whom they were warranted, as follows: The Ebenezer Branham, Nathaniel Brown, Lewis Walker, Wilham Shannon, William Elliott, and the Joseph Tyson, all of which p. 311were dated November 26, 1793, surveyed on the 21st and 22d days of October, 1794, and returned into the land office by William Gray, deputy surveyor, February 23, 1795.

The deposition of David Rockefeller, taken on a former trial, was then read in evidence to show the location of this small maple tree called for as the common corner of the Reynolds and Billington tracts, (southeast of the one and southwest of the other,) in which Rockefeller testifies that in surveying p. 315these lands in 1847 he found the line between these two tracts (the Reynolds and the Billington) well defined upon the ground by marks made at the time of the original survey in 1793, and that he found in running from the northern corner, according to the official courses, at the end of the official distance, a small maple stump and maple sprouts growing around it, and a small maple tree lying on the ground, the trunk of which was burned entirely away for 6 or 7 feet, so that no surveyor’s.mark could be found upon it. The testimony of Cochran and others was to the same effect, and they all gave it as their opinion that this was the true location of the maple tree called for as the common corner of the Reynolds and Billington tracts.

In reply, the defendant contended that the true mode of ascertaining the lines of a survey was to run them according Io the marks and monuments on the ground made by the surveyor at the time of the survey, along with the lines and distances of the official return, when these latter corresponded p. 316with such marks and monuments upon the ground; but in case of a conflict or variance, the original marks and monuments were to prevail and determine the location of the survey.

The surveyors, hereinbefore referred to as witnesses for the plaintiff, state that the Francis West and the Richard Martin have a common corner the southwest of the former, and southeast of the latter; that this corner is also called for as a mark on the northern line of the Ebenezer Branham, as above noted; that, starting from this recognized corner, called for by the three surveys, (the Francis West, the Richard Martin, and the Ebenezer Branham,) and following the southern line of the Richard Martin, (which is also the northern line of the Ebenezer Branham tract, and which all the surveyors, on both sides, testify is marked by monuments counting back to 1793, for a distance of 150 perches,) in its official courses and distances, it intersects the common line between the Lobdil and Martin tracts extended 32 perches south of its official length; that at this point of intersection there is a well-established corner common to the Martin and Lobdil tracts; that if the southern line of the Brush Valley block was run, starting from this southeast corner of the Lobdil tract, according to the official courses and distances, it would be carried actually p. 319upon the line claimed by the defendant below, indicated by the marked line trees and monuments, and strike the point at which he claimed the maple corner was located in the edge of the swamp; and therefore would place the land in controversy without the Elliott tract, and within the Charlotte Ruston and Mary Myers surveys.

Numerous exceptions were taken during the trial, and p. 320exceptions were also taken to the charge of the court. The jury returned a verdict for the plaintiff below, upon which judgment was rendered. The defendant below then sued out this writ of error.

The second specification relates to the rejection by the court of a portion of the deposition of John Fisher, referred to m the above statement. We gather from the brief of counsel p. 321that the ground on which these declarations were ruled out was, that they were not within any of the exceptions to the general rule, that hearsay evidence is inadmissible to establish any specific fact which in its nature is capable of being proved by the testimony of a person who speaks from his own knowledge.

Mr. Justice McLean states one of these grounds. In Boardman v. Lessees of Reed, 6 Pet. 328, 341, he says: “ That boundaries may be proved by hearsay testimony is a rule well settled; and the necessity or propriety of which is not now questioned. Some difference of opinion may exist as to the application of this rule, but there can be none as to its legal force. Landmarks are frequently formed of perishable materials. . . . By the improvement of the country, and from other causes, they are often destroyed. It is therefore important, in many cases, that hearsay or reputation should be received to establish ancient boundaries.” This was a*base of private boundaries purely, and the declarations were rejected, not upon the ground of hearsay, but because they were p. 322corsidered as immaterial, and not tending to elucidate any question before the jury.

In Kennedy n . lubold, 88 Penn. St. 246, the declarations of a deceased surveyor, made thirty-five years before the trial, were allowed to go to the jury, but the court below, in p. 323charging the jury as to the nature and force of this evidence, used the following language: “ There is evidence of what Herrington or some surveyor said when he went to this tract corner. That is hearsay evidence, and we admitted that with a good deal of reluctance. We hardly believe it is evidence. We say to you in determining that evidence, it is weak evidence. It is not as strong evidence as that of witnesses who come here upon the witness stand and submit to cross-examination in testifying to what is the true corner from the very necessity of the case.” The case being carried up by a writ of error to the Supreme Court of Pennsylvania, Chief Justice Agnew delivered the opinion of the court, and said: “ These two cases were argued together. They seem to have been tried upon the doctrine of leaving first principles, and going on to perfection. But old surveys are not to be so tested. Most perfect in the beginning, they are constantly undergoing change and decay, until by wind, fire, rottenness, and the acts and frauds of men, their evidences lie only in memory and hearsay. Hence when the learned judge said of the acts of the surveyors, who forty years before went upon the ground, ran the lines, blocked the trees, counted the growths, found original marks, and pronounced the hickory the numbered corner of donation lot No. 1260, it was mere hearsay, he hardly believed it evidence, admitted it with reluctance, and it was weak evidence in determining, he clearly misled the jury. The reverse is true — the evidence was strong, and ought to prevail unless clearly rebutted, by showing either a mistake of the witness relating the facts, or error in the surveyors making the declaration. . . . The declarations as to the corners when found, blocked, and counted were a part of the res gesta, and so far from being doubtful evidence were competent and always admitted when the transaction is old and the Isurveyor dead.” p. 255.

In Kramer v. Goodlander, 98 Penn. St. 366, the witness having testified that he had owned the land in dispute thirty years before the trial, and employed one Ferguson, a surveyor since dead, to trace the lines, it was offered to prove what Goodlander said as to the lines whilst he was on the ground p. 324searching for them. This was rejected as purely hearsay. Justice Trunkey, delivering the opinion of the court, said: “From an early day in this State, in litigations respecting boundaries, it has been competent to prove, after the death of a surveyor who had examined a line, what he said respecting it at the time and on the ground. . . . The offer should have been admitted.”

The case of Bender v. Pitzer, 27 Penn. St. 333, 335, is an interesting case in its examination of the qualifications and some of the aspects of this rule. The declarations of a deceased surveyor who had not made the original survey, nor p. 325subsequently examined it, nor run the lines upon the ground, and who was not an adjoining owner, and did not point out the lines at the time of those declarations, were held to be rightfully rejected. But Justice Knox, while rejecting the evidence, took especial care to reiterate the principles laid down in the cases heretofore cited. In delivering the opinion of the court he said: “ It has long since been settled, both in this country and in England, that ancient boundaries are provable by general reputation, in a question involving public rights. In Pennsylvania a still greater latitude has been allowed in questions of boundary. Here the declarations of a deceased person touching the locality of boundary between adjoining owners have been admitted where the survey was made by the person making the declaration, or where the declaration was made by an adjoining owner, who pointed out the boundary line between the tracts to the witness at the time the declarations were made.” Caufman v. Congregation of Cedar Spring, 6 Binney, 59 ; Hamilton v. Menor, 2 S. & R. 70.

The first of these cases states the English rule, and summarizes some of the results to be deduced from the decisions of the state tribunals. The court concedes that, had the Supreme Court of Texas decided differently, it would have felt constrained to apply the Texas rule to the case in question ; but even under the summary of the general law in this country, as it was conceived to exist on the subject at that time, the evidence rejected in the present case ought to have been received. It is not necessary for us to approve or disapprove the departures from the original rule, because the court held that the evidence there offered was not admissible under any well-established exceptions to the rule. The court is particular to say the declarations of Moore were made, not when p. 326he was pointing out the boundaries of the Basquez survey, but when he was at a distance from the place of beginning of that survey and from its upper line. That Moore had made the survey, or had ever been upon its upper line, or on the upper line of the reserve, was proved only by his assertion, which the court allowed to be given in evidence. There was no such proof aliunde.

At the request of the plaintiff, the court below said to the jury, “ that in the absence of marks on the north made for the William Elliott in 1794, by the deputy surveyor, the William Elliott must go to its calls for adjoiners on the north; that as there is no evidence of any such original marks, the William Elliott must go to its northern calls for the Daniel Reese, Mary Myers, Charlotte Ruston, and John Reynolds, and, therefore, the William Elliott will embrace the land in p. 327dispute by locating the Mary Myers and Charlotte Ruston, according to the official courses and distances from their northern line, or from the Rockefeller maple corner.”

By the settled law of Pennsylvania, applicable to the location of surveys, original marks and living monuments on the ground constitute the survey, and they are the highest proof of its true location. The next most important evidence of location is the calls for adjoining surveys; and in the absence of both of them, and then only, the lines according to courses and distances, returned by the surveyor into the land office, determine the location. But it is equally well settled, by an unbroken current of decisions in that State, that the surveys constituting a block are not to be treated as separate and individual surveys; nor can each tract be located independently p. 328of the rest, by its own individual lines or calls or courses and distances; but such surveys are to be located together as a block or one large tract. If lines and corners made for such a block of surveys can be found upon the ground, this fixes the location of the block, even to the disregard of the call for adjoiners. The lines and corners found upon any part of the block of surveys belong to each and every tract of the block, as much as they do to the particular tract which they adjoin.

In Fritz v. Brandon, 78 Penn. St. 342, 351, Chief Justice Agnew says : “ When one person is owner of all the warrants, they may be surveyed together in a single block by exterior lines, leaving the interior lines to be settled by the owner himself. Mock v. Astley, 13 S. & R. 382; Stevens v. Hughes, 3 W. & S. 465; Collins v. Barclay, 7 Barr [7 Penn. St.] 73; H& gerty v. Mathers, 7 Casey [31 Penn. St.] 348. The legal effect is, that the entire block is viewed as one tract. Hence, Chief Justice Lewis said, in Hole v. Rittenhouse, 1 Casey [25 Penn. St.] 491, i Under these circumstances it is evident that the whole fifteen surveys adjoining each other in a single block, without interior lines, all made at one time and owned p. 329by the same party, were essentially but one tract.’ . . . This principle was in the mind of Chief Justice Woodward when he said, in Malone v. SaUada, 12 Wright [ 48 Penn. St.] 425: £ And when we are dealing with blocks of surveys we must remember that the marks on any part of the block belong to each tract in the block.’ So Judge Strong said, in Darrah v. Bryant, 6 P. F. Smith [56 Penn. St.] 75: i And if they were surveyed as a block, they must be located as a block.’ ”

In Malone v. Ballada, 48 Penn. St. 419, Chief Justice Woodward says: “Located by these adjoiners, Isaac Miller would take the land in dispute, but several of its courses and distances and the configuration of the survey as returned into the land office would essentially be changed. Notwithstanding these consequences,, ho we ver, the defendants insisted upon its location by its calls. . . . The plaintiffs, on the other hand, contended that the whole block of twenty-five surveys should be located by the marks on the ground, with no other reference to calls for adjoiners than such as would be consistent with the marks on the ground; and that it is immaterial that no marks are found on the Miller survey, since authentic marks are found on other tracts of the block sufficient to locate the whole block, and that these marks apply with decisive effect to Isaac Miller. They deny also that Merrick Starr was called for on the west of Isaac Miller; but if it was, they say it was a mistake, and must be rejected in favor of the courses and distances as returned. In a word, the plaintiffs would locate the Isaac Miller by the marks on the ground of other tracts, in connection with which it was surveyed and returned. . . . And when we are dealing with ilocks of surveys we must remember that the marks on any part of the block belong to each tract of the block. Interior lines were never run and marks are not to be looked for on them; but if marks are found upon the ground to establish an exterior line of a particular tract of the block, and we find other tracts returned with that same line, we are to presume it was adopted as the boundary of these tracts, no less than of the tracts which bear the marks. When the surveyor, for instance, ran from the p. 330pine corner of Gilbert and Brooks to the stone corner of Lomison and Paul, his course for more than three hundred perches was S. 10° E. and his only other course for eighty-nine perches was S. 4£° E. and these two courses carried him the whole width of the Gilbert and Miller tracts, and formed the western boundary of these respective tracts. No marks are found on these lines, but the pine and stones are sufficient to locate them.” p. 425.

A. B. Cochran, a surveyor produced by the plaintiff below as a witness in his own behalf, testified that the “ post by a pine,” called for by the Ebenezer Branham as a monument on its northern line, was a well recognized mark on that line; and that he found three other trees on that line west of the “ post p. 331by a pine ” in the line of official courses, for 150 perches. And there were not less than five surveyors, who, as witnesses produced by the defendant, testified that they found five or six trees on the northern line of the Ebenezer Branham, in the official courses of the same line. These marks, if the jury believed the witnesses, must be regarded, according to the authorities, marks and monuments sufficient, if not overcome by the force of rebutting evidence, to fix the entire northern line of the Le Fevre block and of each tract composing it, including the William Elliott. For these reasons we consider that the inevitable effect of that portion of the charge in question was to mislead the jury.

In Clement v. Northumberland Coal Co., 87 Penn. St. 291, this very question came up as to the effect of the “ post by a pine,” and the pitch-pine upon the southern line of the Richard Martin, in fixing the southern line of the Mary Myers. The court below allowed this evidence to go to the jury to be considered in determining the southern line of the Mary Myers-The Supreme Court affirmed the well-established rule, that p. 333marks upon an adjoining junior survey cannot control or enlarge the dimensions of an earlier survey, (even though the junior survey adopts the lines of the older,) but that such marks may be submitted to the jury as evidence tending to discover the actual location of the older survey. The court said: “ The point, though made in the oral argument against the instruction of the learned court below, we think, is without a sufficient foundation in the charge. The judge very correctly held that a subsequent survey could not control the lines of a former, but he did not leave the case upon this single instruction, by omitting to inform the jury that the subsequent acts of the deputy surveyor in locating a junior warrant and the marks left by him on the ground, might be considered as evidence tending to disprove the actual location of the older survey. On the contrary, he answered the third point of the plaintiff below, which raised the question very plainly, so as to bring the true distinction fairly before the minds of the jury. The point is clear, and he replied: ‘ Marks found upon adjoining surveys made about the time of the survey are evidence upon the subject of location, but they cannot control or enlarge the dimensions of an earlier survey, even though they may adopt its lines.’ Thus the jury was left to locate the earlier survey by those marks, if they should conclude that they indicated the true place of the earlier location ; and were at the same time informed that the lines of a later survey cannot alter or enlarge the lines of a former survey, although the courses and distances of these former lines may be adopted. Certainly, this was a fair instruction, and brought the charge within the precedents cited. The difference between that which is evidence of a fact and an effect which controls the fact is plain. Then, when the judge came to state the evidence of the marks found, he most distinctly referred to the pitch-pine on the southern line of the Martin tract, and the post or pine as the material matter in determining the question to the southern boundary of Mary Myers. In the next paragraph he refers to his answers to the points and leaves the question of the boundary, as indicated by those marks, to the iury” p. 294.

In the case of the Northumberland Coal Co. v. Clement, 95 Penn. St. 126, the Supreme Court of Pennsylvania passed upon this same question as to the effect of marks upon the southern line of the Richard Martin, (which marks were “ post by a pine ” and the pitch pine,) as evidence to fix the location of the line that divides the Billington tract from the Walker tract, defining the southern limit of the former and the northern limit of the latter. The court said: “ The official survey of the Thomas Billington calls for a small maple as its southwest comer. Maple sprouts are found at the place claimed by the defendant in error to be the southwest corner of the tract. The original surveys of all these tracts were made by Henry Donnel, acting as a deputy surveyor. It is shown that the same Donnel, in 1814, in running the northern line of the Lewis Walker tract, fixed the line between it and the Thomas Billington to be where it is now claimed by the defendant in error. The official survey of the Richard Martin calls for a white pine tree in its south line. That tree is standing and identified. That warrant was located by the same surveyor, and the return of survey was made three days before the survey of the Billington tract was returned. It calls for the Samuel Lobdil on the west, and the line between the tracts is of the same length in each survey. He had the warrants in his hands at the same time. The location of the latter throws light on the former. The location claimed by Ike defendant in error for the Billington is not only in harmony p. 335with the block of surveys of which it forms a part, but also with the location of the Richard Martin made by the same surveyor soon thereafter.” The counsel for the plaintiff below, in their able brief, say that there are some errors of fact in that case which detract very much from it as an authority. We do not discover in it any material errors of fact, but it is hardly necessary to consider the suggestion in view of the general concurrence of authorities in the principle therein laid down. See Pennsylvania Canal Co. and others v. Kunkel, 33 Leg. Int. 339; see also Sweigart v. Richards, 8 Penn. St. 436; Bellas n . Cleaver, 40 Penn. St. 260.