United States v. Redondo Development Co.

• Decision Date: 18 November 1918
• Docket Number: 5035.
• Citation: 254 F. 656
• Parties: UNITED STATES v. REDONDO DEVELOPMENT CO.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F. 656

UNITED STATES v. REDONDO DEVELOPMENT CO.

No. 5035.

United States Court of Appeals, Eighth Circuit.

November 18, 1918

J. O Seth, Asst. U.S. Atty., of Santa Fe, N.M. (Summers Burkhart U.S. Atty., of Albuquerque, N.M., on the brief), for the United States.

George S. Klock and Alonzo B. McMillen, both of Albuquerque, N.M for appellee.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

This is a suit by the United States to enjoin the Redondo Development Company from fencing and cutting timber from a tract of land in New Mexico known as 'Baca Location No. 1,' outside the exterior boundaries thereof as established by the official government survey and marked upon the ground by the surveyors. The defendant affirmatively sought a judicial confirmation of its boundary claim. Upon final hearing the trial court held that the true boundaries were delineated in the field notes and plat of the survey officially reported, were not correctly marked upon the ground, and that the fencing of the defendant was upon the right lines. It dismissed the complaint of the government but retained jurisdiction of the cause for further orders if defendant was interfered with. The government appealed.

The Baca floats, locations, or grants as variously called, are five in number, and their history may be found in Shaw v. Kellogg, 170 U.S. 312, 18 Sup.Ct. 632, 42 L.Ed. 1050, involving No. 4, and Lane v. Watts, 234 U.S. 525, 34 Sup.Ct. 965, 58 L.Ed. 1440, and 235 U.S. 17, 35 Sup.Ct. 3, 59 L.Ed. 104, involving No. 3. See, also, Maese v. Herman, 183 U.S. 572, 22 Sup.Ct. 91, 46 L.Ed. 335. Only so much will be recited as is necessary to exhibit the present controversy. By Act June 21, 1860, c. 167, 12 Stat. 71, and proceedings under it, the heirs of Luis Maria Baca were entitled to select from the vacant, nonmineral, public lands in the then territory of New Mexico an aggregate of 496,446.90 acres in not more than five square tracts or bodies. In December, 1860, they made selection No. 1, to contain one-fifth of the quantity, or 99,289.39 acres, and located it by describing a point, definitely determinable by reference to section, township, and range of a distant government survey, 'as a common center, and extending north, south, east, and west a sufficient distance to embrace the area last above mentioned, and that the boundaries of said location shall conform to the cardinal points of the compass. ' A few days later the surveyor general of New Mexico, being duly authorized, certified that he approved and had located the selection. His certificate recited the quantity and the description furnished by the heirs. The Commissioner of the General Land Office approved the selection. A survey was necessary to segregate the lands from the public domain. Lane v. Watts, supra.

In 1876 the Commissioner of the General Land Office directed the surveyor general to make survey in accordance with the selection and location. Following the practice which obtained in those days, the surveyor general contracted with a firm of surveyors to do the work, and in June, 1876, they returned field notes and plat showing a survey in exact accordance with the selection and location; that is to say, of a tract of land in square form containing the number of acres mentioned and with boundaries on the cardinal points of the compass equidistant from the center designated. The survey as reported was approved by the officials of the Department of the Interior. The lands in the location and the surrounding country were wild, mountainous, and principally in forest, unsettled in 1860 and ever since. In October, 1909, the defendant purchased the location, relying solely upon the field notes and plat for its boundaries and contents. In proceeding to inclose it, it was discovered that the marks upon the ground of the survey of 1876 were grossly inaccurate. Defendant's petition for a resurvey was denied by the Commissioner of the General Land Office, and on appeal by the Secretary of the Interior. In 1910 it caused a private survey to be made on the lines shown by the field notes and plat of 1876, and commenced the erection of fences. This suit by the government followed.

The field notes and plat of the survey of 1876 conformed to the selection and location and embraced the quantity of land intended to be confirmed to the locators. But it clearly appears that the surveyors practiced a gross fraud in that part of their duty which consisted in marking the boundary lines upon the ground. A tracing of the lines according to such of their marks and monuments as could be found disclosed a shortage in the required area of nearly 10,000 acres. In very few, if any, instances were the marks and monuments at the places indicated in their report, and for long distances none whatever were found. It is quite apparent that a considerable part of the exterior lines was not traversed at all by the surveyors. They reported a completion of their work in about one-sixth of the time reasonably necessary for a faithful performance by the force they employed; their contract rate of compensation was by the mile. We think that their marking of the lines upon the ground was fully discredited. To sustain them it is necessary that the intent of the government and the Baca heirs and the field notes and plat reported by the surveyors be put aside. The case is not one of mere deviation from mathematical accuracy, but one in which a part of what is comprised in the term 'survey' may be said not to have been performed.

The government contends that the tracks of the original surveyors so far as they are discoverable upon the ground must prevail over the calls and distances of the field notes and plat notwithstanding their apparent inaccuracy and the great discrepancy in the area. The general order of precedence of proofs for...