But I

to me, but to Mr. Ronquillo, who is the person who should have it. attach hereto a photograph of the said document, which will be found marked 'Exhibit A.''

Second deposition:

"(2) If you are the same person whose depositions were taken in said cause, please state whether or not you have in your possession a certain book containing official documents, a decree printed by you in the year 1834. If yea, is there now, or was there at the time you gave your former deposition, any executive decree No. 16, promulgating an act of congress of Chihuahua, confirming a grant of land to Jose Ygnacio Ronquillo, or any document whatever, relating to said grant in said book? Ans. Yes. He has the collection of decrees referred to in the first part of the second question, but there is no decree No. 16 in the same that refers to the concession of land made to Col. Jose Ygnacio Ronquillo." "Now, please state if you intended to testify in said answer that you had at that time any printed paper or document in said book confirming the grant of Jose Ygnacio Ronquillo, or having any relation thereto. If not, explain fully what you intended to say in answer to said interrogatory. Ans. I said, when answering the interrogatory 18, to which reference is here made, I did not intend to signify that I had any decree in my collection relative to the concession made to Col. Ronquillo, but only that the decree which was presented to me by Lawyer Ronquillo seemed to be the same type and of the same time that I was in charge of the government printing office." "Cross Int. 5. When this paper was shown you at the city of Chihuahua, some time previously to the taking of your testimony, did you not at that time then and there say to E. N. Ronquillo that upon comparison of this paper with another like it that you thought it was genuine, and that it had been printed by you in 1834, and that you were willing to certify to the same, and did you not then and there take this paper, and write in your handwriting upon it the words included in cross interrogatory No. 4? Ans. I only certified that the decree presented by Mr. Ronquillo was like the type and bore the same date as the ones I have in my collection of the same time."

This evidence falls far short of establishing the fact that De la Garza, as official printer, printed in the government printing office, state of Chihuahua, in the year 1834, the copy of the alleged decree of the congress of Chihuahua confirming the Ronquillo grant. evidence is worth, at most, that of a more or less qualified expert who gives an opinion that the copy presented by the complainant is genuine.

The

The testimony of expert witnesses offered by the complainant to sustain the genuineness of the document found in Santa Barbara, taken with that of the expert witnesses offered by the defendants and not attacked by the complainant in his motion to suppress, as a whole, is of such a character, and so conflicting, that the nonexpert, after reading and considering it, cannot intelligently say on which side the truth lies. Certain it is, the preponderance is not in favor of the complainant.

On September 24, 1834, the date on which it is alleged the decree of confirmation of the Ronquillo grant was passed by the congress of Chihuahua, the state of Chihuahua was divided into 11 partidos, of which the partido of Parral included the mining district of Santa Barbara. The president of the ayuntamiento of the chief town in the district was the political chief, and, with the ayuntamiento, administered the government of each pueblo or municipality in the district; and it was alone through them that all communications were

made, and all orders and decrees sent by the governor to the president of each municipality in the district. The ayuntamientos were required to keep a register of all deeds of land, either public or private, in their districts, and were required to make and keep an exact inventory of all the public archives in their respective places or towns. The laws and decrees of congress, when printed and signed by the governor and secretary of state, were sent to the political chief of the district, who was required to distribute them to his own ayuntamiento, and to the several towns and municipalities in his district, and to take receipts for all decrees distributed by him. See Laws of Congress, State of Chihuahua, January 5, 1826. All decrees, therefore, that were sent to Santa Barbara in 1834 should have been, and probably were, sent through the political chief of the partido of Parral, and the same decrees should be also found in the archives of Parral when found anywhere in the district, and the receipts for such decrees should also be found at Parral, and the inventory and registry of both Parral and Santa Barbara should show that any decree properly found in the archives at either place had been duly filed, and the date thereof. Evidence of this character in relation to the decree in question is entirely wanting in this record.

Complainant's case, then, as to the genuineness of the printed copy of the decree of confirmation of the Ronquillo grant found in Santa Barbara in 1890, depends entirely upon the document itself, and the place where found. It is not aided by the circumstances attendant upon the finding; nor by the testimony and certificate of Melchor de la Garza, the alleged printer; nor by the weight of opinion on the part of competent experts; nor by evidence that the existence of such a document was, or ever had been, of record elsewhere, or was known by interested parties, or had ever been the basis of transactions between parties in relation to the Ronquillo grant; nor by evidence tending to show that the congress of Chihuahua ever passed, or considered even, any decree relative to said grant; nor by evidence showing that any genuine decree of confirmation was ever in any of the public archives in Mexico. Suspicion and doubt attach to the case, because a duly-authenticated copy is nowhere found, and seems never to have been heard of. No similar copies of such decree of confirmation are found in the public archives or elsewhere. No such decree of confirmation was claimed or asserted by anybody prior to the institution of this suit. It is a conceded fact that the public archives in Juarez, Mexico, were invaded in the interest of the claim now asserted, and a false and forged decree placed in the archives in such a manner as to obtain full credit, so far as forming a part of the public archives is concerned. The document is irregularly, if not falsely, numbered, the alleged number 16 belonging to a genuine decree of the same day, month and year; and the confirmation of the Ronquillo grant by the congress of Chihuahua involved a violation of the state and national policy in regard to the disposing of public lands as declared in the colonization laws of 1824, 1825, and 1828. In view of all of which the learned judge of the court a quo, in his opinion dismissing the complainant's bill, said:

"Considering the circumstances of this case, and the conflict of opinion between experts, and my own examination of these papers, I am thoroughly satisfied that the Santa Barbara decree is a forgery. I can draw no other conclusion consistent with the facts and circumstances of this case."

If the genuineness of the document in question is admitted so far as fabrication, date, and place of deposit are concerned, still it is only secondary and circumstantial evidence, and, in the absence of other proof tending to show that the congress of Chihuahua in the year 1834 took some action in regard to the Ronquillo grant, is of not sufficient value and authenticity to establish the alleged decree of confirmation, when taken in connection with the established fact that for more than 50 years no claim of title by and under such decree was asserted by any of the persons under whom the complainant claims title. See U. S. v. Castro, 24 How. 346; Romero v. U. S., 1 Wall. 721; Pico v. U. S., 2 Wall. 279. The printed paper produced, although it may be a genuine circular letter distributed for information, is not authentic, does not import verity, does not prove itself, and never was intended, unauthenticated, to make proof. A congressional decree confirming a doubtful grant is a law as well as a grant, and should be promulgated and proved as other laws. The constitution of the state of Chihuahua of 1825, tit. 7, art. 45 (translated), is as follows:

"The governor shall publish the law under this formula: N. of the governor of the state of Chihuahua to all of its inhabitants. Know ye, that the congress of said state has decreed the following: [Here a literal copy of the law], to the end that he command it to be printed, published, promulgated and executed in all of its parts. [The date, the name and signature of the governor and secretary of state].'"

Article 46 (translated) is as follows:

"Article 46. The governor will circulate the laws authenticated by the secretary of state, without which requisite they shall not be obeyed."

And article 74, tit. 13, of the same constitution, is as follows: "The decrees, resolutions and ordinances of the governor shall be issued, signed by the secretary of state, without which requisite they shall not be obeyed."

The act of the congress of Chihuahua of the 18th of February, 1826, (arts. 35, 36, and 37), prescribing the duties "Del Secretario del Despatcho," provides as follows:

"Art. 35. The secretary shall be the first chief of his office. Art. 36. He shall authenticate with his full signature all those proceedings that are signed by the governor, and shall use his signature when the governor shall do the same. Art. 37. He shall authenticate all copies which emanate from the office of secretary in his charge."

From these specific provisions as to promulgation of laws and decrees it would seem that proof of congressional decrees, as well as of decrees, resolutions, and ordinances of the governor, could and should be taken as proved only when properly signed and attested with name and signature (evidently by hand) of the governor and secre tary of state.

Our impression of the complainant's case, after patient and careful investigation of some 1,900 printed pages of record and abstracts, with the aid of 566 pages of printed brief and three days of oral argu

ment by very able and experienced solicitors, is substantially as follows:

In 1832-33, Don Jose Ygnacio Ronquillo, lieutenant colonel, was an active and enterprising officer in command of the frontier of the upper Rio Grande, at which time, probably, and on the ground of military services, he applied for a land grant. It is probable that several, and perhaps all, of the preliminary steps were taken to secure to him such a grant, and it is more than probable that Cesario Herrera, about that time alcalde of the town of Presidio del Norte, had knowledge of Ronquillo's application, and perhaps, as alcalde, was called on to aid in some of the preliminary steps; but the troubled condition of the border, with the departure and subsequent death of Col. Ronquillo, in 1834, resulted in the abandonment of the proceedings, and in the abandonment of the grant. Matters remained in this shape some 16 years,-until after the close of the war between the United States and Mexico, resulting in the acknowledgment of the title of the state of Texas to all that part of the state of Chihuahua lying north of the Rio Grande,-when the enterprising Ben Leaton appeared upon the scene, became acquainted with Cesario Herrera, former alcalde, and between them the Ronquillo grant was resurrected, and located on an immense territory in western Texas. A testimonio was concocted, with such transfers as would permit Leaton to assert title, and a persistent effort was made by Leaton to secure and record a recognition of the Ronquillo grant. It was then that the record in San Antonio was obtained, the survey by Howard was made, and the map, herein before referred to, marked "Ben Leaton's Claim," deposited in the land office of the state of Texas. The efforts of Leaton and his agents were kept up until 1854-55, notwithstanding the arrest of Cesario Herrera, formerly alcalde, on the charge of manufacturing false titles, about which time Ben Leaton died. Again there was an abandonment and a period of quiet with regard to claimants under the Ronquillo grant until about 1887-88, when, western Texas land becoming more valuable,-important silver and other mines being discovered and developed, the Ronquillo grant was again resurrected, and put forward as a genuine claim for the immense tract involved. The value of the property in question with the chances presented to speculative lawyers and other parties naturally inspired the most pertinacious and industrious efforts to prove up the claim. One great value of the property being in its silver mines, and, silver mines not passing by ordinary land grants under the government of Mexico, it was necessary to show title direct from the sovereign, which would convey the minerals. Such title could only be secured by a decree of the congress of the state,-a matter that it seems Cesario Herrera and Ben Leaton had overlooked in preparing the testimonio and transfers,and therefore was concocted the admitted forged decree placed in the archives of Juarez, forming the original basis of complainant's suit, but purporting to be signed in writing, with rubrics attached, by the governor and secretary of state, and afterwards (again profiting by experience) was found the Santa Barbara copy, wholly in

print, with no tale-telling signatures or rubrics; both of which alleged decrees convey full title to all the minerals found in the tract.

It is proper to say that, in so far as this record goes, the present complainant, Mr. Owen, is to be acquitted of all knowledge of or complicity in the matter of all doubtful efforts and transactions entered into to establish the validity of the Ronquillo grant. His good faith is apparent, and it is to be regretted that his persistent efforts to maintain his case, with his very able, candid, and industrious exposition of the same, cannot be rewarded.

In our opinion, the decree of the circuit court dismissing the complainant's bill was correct, and should be affirmed, with costs; and it is so ordered.

COE et al. v. AIKEN et al.

(Circuit Court, D. New Hampshire. August 26, 1893.)

No. 228.

1. EMINENT DOMAIN-CONTRACT-ESTOPPEL.

A party asking relief against a railway company upon a contract which necessarily assumes a right of eminent domain in the latter cannot, in the same suit, complain of an additional taking of lands, on the ground that the company is not of a kind to be invested with such right.

2. SAME-FRAUDULENT LOCATION-SETTING ASIDE.

A court of equity cannot set aside an adjudication of a proper tribunal determining and locating the quantity of lands required for a public use merely because the parties who brought about the adjudication had a fraudulent or illegal intent; but it must appear that the tribunal itself proceeded fraudulently, or in excess of its powers, or that it committed a gross mistake, or was imposed upon by fraudulent methods.

3. SAME-EXTENT OF LOCATION-EQUITY JURISDICTION.

A court of equity has power to determine whether the amount of land taken is needed for public use, but in this respect the courts are liberal towards the party exercising the right, as the owner is protected by the requirement for compensation; and every reasonable intendment will be made in favor of the adjudication of the tribunal awarding the lands. 4. SAME-UNCERTAINTY OF LOCATION.

A location of lands taken for public use cannot stand if it is uncertain in law; but that it is uncertain in fact, so as to require a resort to the courts for settlement of its boundaries, does not render it uncertain in law, for in law that is certain which can be made certain. 5. CONTRACT-CONSTRUCTION-LEASE.

The owners of a mountain summit leased a portion thereof to a tourists' railroad company for five years, with the privilege of erecting an hotel and At the termination of the lease, the lessors were other buildings thereon. to have the right to purchase whatever buildings were on the premises, whether within or without the limits of the railroad right of way, "excepting such parts of said buildings and improvements within said limits A hotel and other as may be required by said second party for the proper and convenient use of its road, and for its engines, cars, and repairs." buildings were accordingly erected, partly within and partly without the The lease was twice renewed, and after the expiration railroad location. of the last term, and before any adjustment was reached, the railroad company made an additional location, which was claimed to include the hotel and most of the other buildings. Held, that the question whether or not the buildings were required for railroad purposes was to be determined by the condition of things at the termination of the lease; that, reading the contract as a whole, the lessors were not to take any buildings re