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Separate Opinion of Mr. Justice Field.

of the government to further private ends, and yet there is no practical difference between that course of procedure and the one adopted in this case. The opinion of the court shows above all controversy the utter groundlessness of the charges upon which it is sought to set aside the survey. A very little attention to the proceedings had before the Land Department in the contest upon that survey would have satisfied the Attorney General of the futility of any attempt to disturb it, and it is not probable that he would have authorized any.

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

Separate Opinion of Mr. Justice Field.

to insti

statute of limitations runs against the government tute 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.

I do not recognize the doctrine that the Attorney General takes any power by virtue of his office except what the Constitution and the laws confer. The powers of the executive officers of England are not vested in the executive officers of the United States government, simply because they are called by similar names. It is the theory, and I may add, the glory of our institutions, that they are founded upon law, that no one can exercise any authority over the rights and interests of others except pursuant to and in the manner authorized by law.

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

Separate Opinion of Mr. Justice Field.

power 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."

If the Attorney General possesses the powers ascribed to him in the absence of any law defining them, we have this singular condition presented, that the owner of property derived from the United States by the most solemn instruments, holds his possession subject to the liability that it may be disturbed at any time by a suit of the government, brought at the will of that officer, a not very creditable commentary on our institutions; but if the owner can trace his title to some other source, he may have a reasonable degree of certainty that he will not be unnecessarily disturbed.

Aside from the qualifications thus expressed to the views of the court, there is much in the opinion which gives me great satisfaction. It holds that in suits brought by the government for relief against an instrument alleged to have been obtained by fraud or deceit, or any practice which would justify a court in granting relief, the government must show, like a private individual, that 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 prejudice 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 have no pecuniary interest in the remedy sought, and are 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 their own, they can no more sustain such an action than any private person could under similar circumstances.

From this ruling some degree of peace and security may come to holders of titles derived by patent from the govern

ment.

Syllabus.

From the clear and full statement, in the opinion of the court, of the case and of the controversies before the Land Department, involving the same questions now presented, there can be but one conclusion, and that is, that the decree below dismissing the bill was in consonance with justice and right.

CLEMENT v. PACKER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

No. 143. Argued January 23, 24, 1888. - Decided March 19, 1888.

An assignment, as error, that the court below rejected certain patents of land offered in evidence by the plaintiff is fatally defective, if the record does not contain copies of the patents.

In an action of ejectment in a Circuit Court of the United States, sitting in the State of Pennsylvania, which involves a question concerning the location of the boundary of a private estate, that rule of evidence respecting the admission of declarations of deceased persons touching the disputed boundary which is laid down by the highest court of that State is the rule to govern the action of the Circuit Court at the trial; and it is well settled in that State that declarations of a deceased person touching the locality of a boundary which was surveyed and located by him, which declarations were made to the witness in pointing out that locality, are admissible in evidence.

Hunnicutt v. Peyton, 102 U. S. 333; and Ellicott v. Pearl, 10 Pet. 412, distinguished.

In Pennsylvania, original marks and living monuments are the highest proof of the location of a survey; the calls for adjoining surveys are the next most important evidence of it; and it is only in the absence of both that corners and distances returned by the surveyor to the land office determine it.

Surveys constituting a block are not treated in Pennsylvania as separate and individual surveys, but are to be located together as a block on one large tract; and if the lines and corners of the block can be found, this fixes its location, as they belong to each and every tract of the block as much as they do to the particular tract which they adjoin. When the location of a survey in Pennsylvania can be determined by its own marks upon the ground, or by its own calls, courses, and distances, it cannot be changed or controlled by the marks or lines of an adjoining junior survey; but when, by reason of the disappearance of these

Statement of the Case.

original landmarks from the senior survey, the location of a line or the identity of a corner is uncertain and is drawn in controversy, then original and well established marks found upon a later survey, made by the same surveyor about the same time, and adjoining the one in dispute, are admissible—not to contest or control the matter- but to elucidate it and thus aid the jury in discovering the location of the senior survey.

After the lapse of twenty-one years from the return of a survey in Pennsylvania, the presumption is that the warrant was located as returned by the surveyor to the land office, and in the absence of rebutting facts, the official courses and distances determine the location of the tract; but this presumption is not conclusive, and may be rebutted by proof of the existence of marked lines and monuments, and other facts tending to show that the actual location on the ground was different from the official courses and distances.

THE Court stated the case as follows:

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, William Shannon, William Elliott, and the Joseph Tyson, all of which

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