protection may maintain a bill to have the patentee declared a trustee for him; but such a patent is merely voidable, not void, and can not be successfully attacked by strangers who had no interest in the land at the time the patent was issued and were not prejudiced by it. (Colorado Coal & Iron Co. v. United States, 123 U. S. 307, 313; Diamond Coal Co. v. United States, 233 U. S. 239; Germania Iron Co. v. United States, 165 U. S. 379; Duluth & Iron Range Railroad Co. v. Roy, 173 U. S. 587, 590; Hoofnagle v. Anderson, 7 Wheat. 212, 214-5.) In the last case this court said, speaking through Chief Justice Marshall: 'It is not doubted that a patent appropriates land. Any defects in the preliminary steps, which are required by law, are cured by the patent. It is a title from its date, and has always been held conclusive against all those whose rights did not commence previous to its emanation. If the patent has been issued irregularly, the Government may provide means for repealing it; but no individual has a right to annul it, to consider the land as still vacant, and to appropriate it to himself.' Of the same import are Cooper v. Roberts (18 How. 173, 182); Spencer v. Lapsley (20 How. 264, 273); Ehrhardt v. Hogaboom (115 U. S. 67, 68)."

* * *

I regret that this memorandum has been so unduly extended. I made it so intentionally because of the insistence of those who had asked that proceedings be instituted by the United States. Ordinarily, I would have disposed of the matter much more quickly.

Before closing the memorandum I think I should call attention to the fact that some of the petitioners are under indictment for using the mails in furtherance of a scheme to defraud. The scheme concerns these very lands. It is represented by the parties to the fraud that for a stated consideration they can procure for the "victims " a preference right to these lands. scheme in detail is like that in United States v. Comyns (248 U. S. 349).

The

Of course, if in defense of the criminal case defendants can show that the question of suit to restore these lands to the public domain is being seriously considered by the Attorney General, a very substantial impression of sincerity on their part may be established. While I have no doubt that they would be very glad to have the lands made available for entry, yet a secondary consideration, at least, may be building up a defense to the criminal proceedings. My conclusion is that no action can be taken to attack the patent here involved.

Respectfully,

H. L. UNDERWOOD,

Special Assistant to the Attorney General.

INVESTIGATION RESOLUTION MODIFIED (S. RES. 374)

The resolution (S. Res. 333) authorizing and providing for the investigation, as modified by the committee, was reintroduced by Senator Cameron, thereby becoming S. Res. 374, and referred to the Committee on Public Lands and Surveys on February 26, 1927. The modified resolution (S. Res. 374), which was reported favorably to the Senate without amendment, and referred to the Committee to Audit and Control the Contingent Expenses of the Senate on February 28, 1927, is as follows:

[Senate Resolution 374, Sixty-ninth Congress, second session]

Resolved, That the Committee on Public Lands and Surveys, or any subcommittee thereof, be, and it hereby is, authorized and directed to make a thorough investigation of and report to the Senate, on or before January 2, 1928, its findings and recommendations regarding charges that have frequently been made and continue to persist, and report that have long been current and now prevail, that a vast tract of land, known as the Rancho Lomas de Santiago, situated in the county of Orange, State of California, being within the area of the lands ceded to the United States by the Government of Mexico, was corruptly and fraudulently turned over to and delivered into the possession of private interests, and has been held and is now held by said interests without color of title, and has been exploited and is now being exploited by said interests in violation of law.

That said committee is hereby authorized to sit and perform its duties at such times and places as it deems necessary or proper, and to require the attendance of witnesses by subpoena or otherwise; to require the production of books, papers, surveys, maps, grants, patents, and any and all other documents pertaining thereto; to employ such clerical and stenographic assistants; and to employ stenographers to report such hearings at a cost not exceeding 25 cents per hundred words. The chairman of the committee, or any member thereof, may administer oaths to witnesses and sign subpoenas for witnesses and records; and every person duly summoned before said committee, or any subcommittee thereof, who refuses or fails to obey the process of said committee, or refuses to answer the questions pertaining to said investigation, shall be punished as prescribed by law. The expenses of said investigation, which shall not exceed the sum of $15,000, shall be paid from the contingent fund of the Senate on vouchers of the committee or subcommittee signed by the chairman and approved by the Committee to Audit and Control the Contingent Expenses of the Senate.

(Whereupon, at 12.05 o'clock p. m., the committee went into executive session, and at the conclusion of which adjourned to meet subject to the call of the chairman.)

INDEX

THURSDAY, FEBRUARY 17, 1927

Senate Resolution 333, proposed resolution authorizing investigation___.
Williamson S. Summers, attorney at law, Los Angeles, Calif., statement of
Correspondence regarding the furnishing to Ben McLendon of records
and data, and calling his attention to certain reports of the
Commissioner of the General Land Office: Letter addressed to E. B.
Wickham or V. H. Koenig, Los Angeles, Calif., from George R.
Wickham, General Land Office, Washington, D. C., dated August
28, 1922; etc___

Letter to Ben McLendon, Los Angeles, Calif., from George R. Wick-
ham, Assistant Commissioner, General Land Office, Washington,
D. C., dated September 7, 1922, inclosing information regarding the
names of certain homesteaders who in 1906 filed upon certain lands
within the Lomas de Santiago and San Joaquin Ranchos in Orange
County, Calif., together with the descriptions of the lands filed
on by said homesteaders; to which memoranda is also attached
an excerpt from the report of the Commissioner of the General
Land Office, setting forth a partial list of other patented ranchos
in which irregular proceedings have been had, and an immense
quantity of public land has wrongfully been embraced within the
patented lines of the same, and also reports of the surveyor general
of New Mexico in cases No. 49, 50, and 51, which had been sub-
mitted to the Secretary of the Interior for transmittal to Congress_
Letter to Ben McLendon, Washington, D. C., from George R. Wick-
ham, Assistant Commissioner, General Land Office, Washington,
D. C., dated December 19, 1922, advising that no action has as yet
been taken in homestead application Los Angeles 035363--
Letter to Ben McLendon from George A. Ward, Washington, D. C.,
dated September 6, 1922, regarding effort to obtain a certain
address_

Letter to Ben McLendon, Esq., Alhambra, Calif., from Charles D.
Hamel, Washington, D. C., dated May 12, 1925, regarding conver-
sation with friend of Mr. McLendon's from whom information was
learned regarding the situation___.

Guy Mason, attorney at law, Washington, D. C., granted permission
to interrogate the witness__.

Citation from volume 7, Federal Statutes, annotated (second edition),
section 19, page 484, regarding conspiracy to injure, oppress,
threaten, or intimidate any citizen in the free exercise or enjoy-
ment of any right or privilege secured to him by the Constitution
or laws of the United States__
Citation from the case of the United States v. Waddell (112 U. S.
76), regarding right to establish claim under homestead acts_-_-
Letter of George R. Wickham, Assistant Commissioner, General Land
Office, Washington, D. C., stating that he hopes the information
furnished will answer the purpose_-

Data furnished by Mr. Williamson S. Summers, inserted in the record for
the information of the committee__

Brief filed with the committee setting forth the facts regarding the
Lomas de Santiago grant_----

Petition (before the Department of the Interior, Ben McLendon et al.
v. Rancho Lomas de Santiago and James Irvine) for recommenda-
tion by the Secretary of the Interior to the Attorney General that
a suit be instituted in the proper jurisdiction to cancel, annul,
vacate, and reform the patent heretofore issued for lands errone-
ously, inadvertently, and by mistake, and without authority of
law, included in and as a part of the Rancho Lomas de Santiago,
submitted by Ben McLendon et al., petitioners, and filed by Wil-
liamson S. Summers, Clark & Clark, and Samuel H. Moyer, attor-
neys for petitioners__..

Page

1

2-31

3

3-6

6

6

7

19

19

28

31-91

31-35

36-38

Data furnished by Mr. Williamson S. Summers-Continued.
Petition (before the Department of the Interior)-Continued.
Affidavit of Horace F. Clark, member of the firm of Clark &
Clark, stating that a true copy of the petition had been mailed
to James Irvine, present owner of the Rancho Lomas de Santi-
ago, at San Francisco, California_.

Brief and argument in support of the petition submitted by Wil-
liamson S. Summers, Clark & Clark, and Samuel H. Moyer,
attorneys for petitioners__.

Statement

Map of land applied for, granted, and confirmed to Theo-
docia Yorba, 4 square leagues, or 17,752.72 acres
(Fig. 3)

Map of land purporting to show the 4 square leagues
granted and confirmed to Yorba, 11 square leagues, or
47,226.61 acres (fig. 4).

I. The matter in no respect can be considered res judicata__
II. The act of March 3, 1891, section 8, commonly known as
the statute of limitations, does not apply to this case_-.
III. That the possible claim of innocent purchaser can not
be made here_.

IV. That the possible claim of possession under color of title
can not be pleaded---

V. That under the facts and law it is the duty of the Land
Department without further delay to take the necessary
steps to recall the patent issued erroneously, and by inad-
vertence and mistake, and that upon refusal to so surren-
der said patent, to submit the matter to the Attorney Gen-
eral of the United States for such action as the facts and
law may warrant__

Reply to brief for respondent submitted by Williamson S. Sum-
mer, Clark & Clark, and Samuel H. Moyer, attorneys for peti-
tioners_
Letter to the Attorney General from Judge E. C. Finney, First As-
sistant Secretary of the Interior, dated December 4, 1924, suggest-
ing that the Attorney General consider the advisability of a suit
by the Government to reform a patent issued under the Rancho
Lomas de Santiago grant, and setting forth certain facts relative
thereto__.

Memorandum to the Secretary of the Interior, dated May 18, 1925,
being findings made by Hon. Ira K. Wells, the Assistant Attorney
General, and approved by Hon. John G. Sargent, Attorney General,
in re grant to and patent for lands known as the Rancho Lomas de
Santiago, in pursuance of the letter of the Secretary of the Interior
of December 4, 1924, and also suggesting that action upon the pend-
ing homestead applications be withheld awaiting the outcome of
such proceedings as may be deemed advisable and necessary.
Letter to Hon. Hubert Work, Secretary of the Interior, from Hon.
John G. Sargent, Attorney General, dated May 20, 1925, suggesting
that a resurvey of the Rancho Lomas de Santiago grant be made__
Letter to the Commissioner of the General Land Office from Judge
E. C. Finney, First Assistant Secretary of the Interior, dated July
23, 1925, directing that the resurvey asked for by the Attorney Gen-
eral be made__.

Memorandum stating that on August 20, 1925, the Attorney General
directed a communication to the Secretary of the Interior with-
drawing his request for a survey-.

Letter to Hon. John G. Sargent, Attorney General, from Clark &
Clark, by Horace F. Clark and Williamson S. Summers, attorneys
for petitioners, dated September 23, 1925, requesting that when
the report covering the history and facts of the case is made to
the Attorney General that no conclusion be reached by him or
action taken in regard thereto until Mr. Summers could be heard-
Note stating that Attorney General Sargent's letter, in answer to Mr.
Williamson S. Summers's communication of September 23, 1925,
fixed the hearing for October 26, 1925---.

Data furnished by Mr. Williamson S. Summers-Continued.
Letter to Hon. Hubert Work, Secretary of the Interior, from Hon.
John G. Sargent, Attorney General, dated November 11, 1925,
giving four reasons why no suit should be instituted__
Memorandum stating that the homesteaders did not know their
rights had been disposed of until November 17, 1925.
Letter to Hon. John G. Sargent, Attorney General, from Williamson
S. Summers, dated November 17, 1925, regarding the findings sub-
mitted to the Secretary of the Interior___.
Letter to Williamson S. Summers, Washington, D. C., from Hon.
John G. Sargent, Attorney General, dated November 19, 1925,
regarding the granting of a hearing upon Mr. Summers's return
from California

Letter to the President of the United States, Washington, D. C.,
from Williamson S. Summers, Los Angeles, Calif., dated Decem-
ber 4, 1925, inclosing copy of communication sent to the Attorney
General, Washington, D. C., of the same date__
Letter to Hon. John G. Sargent, Attorney General, Washington, D. C.,
from Williamson S. Summers, Los Angeles, Calif., dated December
4, 1925. (NOTE. This is the communication mentioned in Mr.
Summers's letter to the President of the same date, reciting the
facts leading up to the presentation to the Secretary of the Interior
of the conclusions of the Attorney General, and the facts subse-
quent thereto).

Memorandum giving a résumé of the facts in the ceding of the Cali-
fornia land grant to the United States by Mexico, and the so-called
Lomas de Santiago grant---

Senator Hoar in the Belknap case, 1882_.

Letter to Williamson S. Summers, Los Angeles, Calif., from Hon.
John G. Sargent, Attorney General, dated December 12, 1925,
stating that notwithstanding the tone of Mr. Summers's letter of
December 4, 1925, he will still give him a hearing in the case_.
Letter to the President of the United States, Washington, D. C.,
from Williamson S. Summers, Los Angeles, Calif., dated December
30, 1925, inclosing a further letter to the Attorney General of
the same date__
Letter to Hon. John G. Sargent, Attorney General, Washington,
D. C., from Williamson S. Summers, Los Angeles, Calif., dated
December 26, 1925. (NOTE. This is the letter mentioned in Mr.
Summers's letter to the President, as above regarding the hearing
suggested by the Attorney General).

Letter to the President of the United States, Washington, D. C.,
from Williamson S. Summers, Los Angeles, Calif., dated February
10, 1926, setting forth the facts in the California land grant to
the United States by Mexico, etc_-

Section 1, article 2, Constitution__
The Interior Department-.

The Department of Justice__

77

77

78

The Lomas de Santiago an alleged Mexican grant-the relation
this alleged grant sustains to an illegal survey of lands
included in the so-called Irvine Ranch__.

78

The homestead_.

"The California Syndicate'

Fraudulent surveys in California-developments as to the sur-

veying syndicate__

Titles to lands in California....

Treaty of Guadalupe Hidalgo_.

Protocol of Guadalupe Hidalgo treaty.

Court or commission__‒‒‒

Grants-.

Patents

The Department of Justice_

The Interior Department--

The Supreme Court of the United States.

The President____.

The people----

Faith, good and bad_--

Obstruction by departments----