Colorado Company v. Commissioners

• Decision Date: 01 October 1877
• Citation: 95 U.S. 259,24 L.Ed. 495
• Parties: COLORADO COMPANY v. COMMISSIONERS
• Court: U.S. Supreme Court

95 U.S. 259

24 L.Ed. 495

COLORADO COMPANY v. COMMISSIONERS.

October Term, 1877

ERROR to the Supreme Court of the Territory of Colorado.

This suit was brought by the plaintiff in error in the District Court within and for the county of Pueblo, to recover taxes paid by it under protest, July 1, 1874, which had been assessed for the year 1873, on certain lands situate in that county. The judgment rendered in its favor by that court having been reversed by the Supreme Court of the Territory, the cause was removed here by writ of error.

Manuel Armijo, governor of New Mexico, granted, Dec. 1, 1843, to Gervacio Nolan, lands in a part of that province, now constituting Pueblo County, Colorado, which cover by estimate five hundred thousand acres, bounded by mountains and natural objects.

Congress passed an act, approved July 1, 1870, 16 Stat. 646 entitled 'An Act to confirm the title of the heirs of Gervacio Nolan, deceased, to certain lands in the Territory of Colorado.' The first section confirmed the grant to the extent of eleven square leagues. The remaining sections are as follows:——

'SECT. 2. That the exterior lines of said claim of eleven leagues, as confirmed by this act, shall be adjusted according to the lines of the public surveys as near as practicable, but in a compact form, and the claims of all actual settlers falling within the limits of the located claim above referred to shall be adjusted to the extent which will embrace their several settlements upon their several claims being established either as pre-emptions or homesteads according to law, and for the aggregate of the arears [areas] of claims so established under the pre-emption or homestead acts, the heirs of said Nolan, or their legal representatives, shall be entitled to locate a like quantity of public lands, not mineral, according to the lines of the public surveys, and not to exceed one hundred and sixty acres in one section: Provided, that such location shall be made within the bounds of the original grant by the order of Cornelio Vigil to Gervacio Nolan.

'SECT. 3. That it shall be the duty of the Commissioner of the General Land-Office to cause the lines of the public surveys to be run in the regions where a proper location would place the said Nolan claim, and the expense of the same shall be paid out of any moneys in the treasury not otherwise appropriated; but, before the confirmation provided for by this act shall become legally effective, the heirs of the said Gervacio Nolan, or their legal representatives, shall pay the cost of so much of said surveys as inures to their benefit respectively, and that all actual settlers whose claims may be adjusted as valid shall have a right to enter their improvements by a strict compliance with the pre-emption or homestead laws.

'SECT. 4. That upon the adjustment of said claim of the heirs of Gervacio Nolan, according to the provision of this act, it shall be the duty of the surveyor-general of the district to furnish properly approved plats to said claimants, or their legal representatives, which shall be evidence of title, the same to be done according to such instructions as may be given by the Commissioner of the General Land-Office: Provided, however, that when said lands are so confirmed, surveyed, and patented, they shall be held and taken to be in full satisfaction of all further claims or demands against the United States.

'SECT. 5. That, immediately pon running the lines provided for in the second of this act, the surveyor-general of the district shall notify the said heirs of Gervacio Nolan, or their legal representatives, of the fact of such survey being made; and said claimants shall, within three months after notice of such survey, select and locate their said claims according to the provisions of this act, and shall, within said time, furnish the surveyor-general with a description of such location, specifying the lines of the same; and the party failing to make such selection and location, in such manner and within such time, shall be deemed and held to have abandoned their claim, and their rights and equities under this act shall cease and terminate.'

The plaintiff in error acquired all the rights and title of the confirmees to the lands, and, a survey of them having been made pursuant to the act, selected them within the required time and in due form, to the extent, as was then believed, of eleven square leagues. A plat and descriptive list, subject to the revision of the Land Department at Washington, were prepared, and on April 27, 1872, delivered to the surveyor-general of the Territory. Entries of portions of the selected lands by claimants under the homestead and the pre-emption laws, amounting to six thousand five hundred and sixty-five acres, were subsequently approved by the Secretary of the Interior; and the plaintiff was allowed by the Commissioner of the General Land-Office to select, by way of indemnity, other lands within the limits of the original grant. An error was also committed by including nine hundred and twenty acres in excess of eleven square leagues, as, owing to the fact that at the time the plat and list were made the meander line had not been run along the south bank of the Arkansas River, where a portion of the lands were situate, it was impossible to ascertain the exact area of the selected tract. The nine hundred and twenty acres were withdrawn March 9, 1874. On the 30th of January of that year, other lands were selected in lieu of those taken by homestead and pre-emption claimants, and a descriptive list of them delivered to the surveyor-general; but that officer has not furnished either a statement of the cost of the survey or the approved plats required by the act, and the plaintiff in error has not paid any part of such cost.

The taxes in question were duly assessed, if the lands embraced within the preliminary selection of eleven square leagues after deducting therefrom the nine hundred and twenty acres so withdrawn, and the six thousand five hundred and sixty-five acres so entered, were on the first day of May, 1873, subject to taxation.

Mr. John D. McPherson for the plaintiff in error.

1. The act of Governor Armijo was ultra vires. He had no authority, under the act of the Mexican Congress of 1824 and the regulations of 1828, to grant to one person more than eleven square leagues of public land. United States v. Hartnell's Executors, 22 How. 286; United States v. Vigil, 13 Wall. 450; United States v. Vallejo, 1 Black, 451. The grant of a tract with ascertained boundaries which contains more than ten times that quantity was therefore a nullity, and the title of the plaintiff must be derived from the United States.

2. But the grant, if in any aspect of the case valid pro tanto, did not vest a title to any specific tract of eleven square leagues. Some further official act, severing that quantity of land from the public domain, and subjecting it to the operation of the grant, was indispensable. This was not done by Mexico; and the grantee had, under the treaty or the law of nations, nothing beyond an equitable claim upon our government that eleven square leagues should be set apart to him within the limits of a larger tract. The...