by the state, in lieu of sections 16 and 36, as was supposed, in pursuance of the act of congress on the subject, adjudging such listing to be unauthorized and void, annulling and vacating the patents issued to purchasers by the state, after such selecting and listing, and decreeing that no title to the lands passed thereby to the patentees. The grounds of the bill are, that the listing over to the state was by mistake and without authority of law; the lands having been granted to the Central Pacific Railroad Company before any right could have attached in favor of the state, and were therefore, not subject to selection by the state under the said acts. After a contest continued for many years, the secretary of the interior has finally decided that the lands in question belong to the railroad company, and that it is entitled to a patent, that they were listed to the state by mistake, without authority of law, and that the listing is void. But the department refuses to complicate matters by issuing patents. According to the view of the secretary of the interior, the United States are under obligation to convey a clear title to the railroad company, and they are unable to do so by reason of the mistake of the officers of the government, in unlawfully listing the lands to the state; and, consequently, that it is the duty of the government to have the prior listing to the state annulled, and the patents issued thereon declared to be unauthorized and void by a decree of the court, before issuing patents to the party entitled. For these reasons, and upon these grounds, this bill has been filed by the attorney general, at the request of the secretary of the interior.

The lands in question are odd sections, lying within the 20-mile limit of the grant of lands made to the Central Pacific Railroad Company, to aid in the construction of its road, by the act of congress of July 1, 1862, and the act of 1864 amending said act. 12 St. p. 492, § 3; 13 St. p. 358,. § 4. Part of the lands lie in township 3 S., range 3 E., Mt. Diablo Base and Meridian, and a part in township 2 S., range 1 E. The lands in township 3, range 3, were surveyed in the field in August, 1862, and sectionized, and a plat thereof was made and approved by the surveyor general of California, December 24, 1862, but a duly-certified copy of the plat was not filed in the land-office of the district till June 4, 1869. The certified copy of the plat then filed is regarded by the department as the official plat, and the date of its filing, June 4, 1869, as the date of the survey. On December 28, 1865, a plat of the township, approved by the surveyor general December 18, 1865, was filed in the district land-office, but this plat is not regarded by the department as official, or as indicating the date of the official survey. Township 2 S., range 1 E., was first surveyed in the field in March, 1865, and an approved plat thereof first filed in the district land-office June 10, 1865. In accordance with the provisions of said acts of 1862 and 1864, the railroad company filed in the department of the interior, on December 8, 1864, its map designating the general route of the road, and on December 23, 1864, the secretary of the interior, in pursuance of the provisions of said acts, issued an order withdrawing the said lands for the distance of 25 miles on each side of the line of said road so designated, "from sale,

location, pre-emption and homestead." A map, showing distinctly the lands so withdrawn, accompanied said order. Said order of withdrawal and map were received and filed in the district land-office, and went into effect, at latest, on January 30, 1865. This action was before any of the lands in township 2, range 1, had been surveyed in the field, and before any plat recognized by the department as official, of the lands. surveyed in township 3, range 3, had been filed, but after this latter township had been actually surveyed in the field. The road having been fully completed and accepted by the president, the railroad company filed its map of definite location on February 1, 1870. In 1839 the Mexican governor, Alvarado, made a grant of land called "Las Pocitas," to one Livermore and another, who presented it to the board of land commissioners for confirmation, and it was confirmed by the board, February 14, 1854. The decree is in the words following, to-wit?'

"The lands of which confirmation are hereby made of 'Las Pocitas,' are bounded and described as follows, to-wit: On the north by the Lomas de las Cuevas; on the east by the Sierra de Buenos Ayres; on the south by the dividing line of the establishment of San Jose; and on the west by the rancho of Don Jose Dolores Pacheco, containing in all two square leagues, a little more or less. Reference for further description to be had to the map marked 'C,' and filed in the cause."

The exterior boundaries contained from 10 to 12 leagues. The district court, on appeal, affirmed the decree of the board, February 18, 1859, and the supreme court of the United States finally confirmed the grant on appeal in January, 1861.'. The final decree of confirmation is in the words following:

"The land of which confirmation is hereby made is known as Las Pocitas,' and is bounded and described as follows, to-wit: On the north by the Lomas de las Cuevas; on the east by the Sierra de Buenos Ayres; on the south by the dividing line of the establishment of San Jose; and on the west by the rancho of Don Jose Dolores Pacheco, containing in all two square leagues, provided that quantity be contained within the boundaries named, and if less than that quantity be contained therein, then the less quantity is hereby confirmed. Reference for further description to be had to the map marked C,' filed in

this case."

After confirmation by the board, and before the appeal, at the request of Livermore, then the owner of the grant, on April 5, 1854, William J. Lewis, a deputy-surveyor, was directed by the United States surveyor general of California to make a survey. He was directed to notify any adjoining claimants who might be interested, of the time and place when any line would be run; to note any objections, and report any protest that might be made. He made the survey in accordance with the instructions. Livermore being present, and pointing out his corners and boundaries; and the deputy-survey or reported that the owner, Livermore, "expressed himself entirely satisfied with the boundaries as I surveyed them, and as represented in the accompanying map." He reports that he has no doubt that "the survey as made fulfills the intentions of the Mexican grant, as derived from the terms of the grant." The neigh

Not reported.

boring owners were notified, and were also present with Livermore, and pointed out their boundaries; and they, as well as Livermore, were satisfied. This survey was approved by the surveyor general June 19, 1854. It embraced over four-nearly five-square leagues of land, more than double the amount afterwards stated in the decree of confirmation by the supreme court, but did not include any of the lands now in controversy. An appeal having afterwards been taken by the United States from the decree of confirmation, nothing further was done under this survey. The final decree of confirmation by the supreme court in January, 1861, limited the amount to two square leagues, by striking out the words "more or less," in the decree of the board, and adding other words indicating the purpose; the language of the final decree being "containing in all two square leagues, provided that quantity is contained. within the boundaries named," etc. In 1858, pending the appeal, Livermore died. The claim having been finally confirmed in 1861, Mr. Dyer, a deputy-surveyor, in 1865, under instructions dated September 21, 1865, made a survey, which embraced ten square leagues instead of two, to which the quantity was limited by the terms of the final decree. This survey embraced the entire Lewis survey, and extended far beyond it, in nearly all directions, and especially to the south-east and northwest. It also embraced the lands in controversy in this suit, at the two extremities of the survey, in the longest direction of the survey. The survey was approved by the surveyor general of California on February 8, 1867. On July 30, 1868, the secretary of the interior set aside this survey as being "clearly wrong," and directed the commissioner to return it to the "surveyor general, with instructions to reduce the quantity of land to two square leagues." A new survey was made by Dyer, deputy-surveyor, by which the land was reduced to two square leagues, all of which lies within the boundaries of the Lewis survey, but does not cover one-half of that survey. None of the lands in controversy are within the two square leagues, or even within the boundaries of the Lewis survey. This last survey of two square leagues was approved by the surveyor general May 11, 1870, by the commissioners of the general land-office, March 1, 1871, and by the acting secretary of the interior on June 6, 1871, by which it became final. The land was patented in accordance with this survey, and the patent accepted by the claimant. Between May 15, 1863, and May 16, 1864, after actual survey in the field, but before the survey had been officially adopted or recognized by the secretary of the interior, and before it had been approved by the surveyor general, and filed in the district land-office, the state of California, by its locating agent, made selections and locations of all the lands now in controversy in township 3, range 3, in part satisfaction of the grant to the state, of lands in lieu of sections 16 and 36, under the act of March 3, 1853, (10 St. p. 246, §§ 6, 7.) Between February 17, 1864, and February 9, 1866, the state had issued its certificates of purchase to the several purchasers thereof, the first payments of the purchase money having been made. The selections, apparently, at their respective dates were by the register of the land-office entered in his of

fice. A portion of these lands was certified over to the state by the land department at Washington, approved by the secretary of the interior on November 15, 1871, and the remainder on March 24, 1873, and they were afterwards patented to the purchasers by the state.

The lands in controversy situate in said township 2, range 1, were selected in advance of any survey in the field by the United States surveyor general, upon surveys made by the county surveyors of the state, between July 28, 1862, and July 20, 1863. Certificates of sale were issued to purchasers by the state for a part between March 2, 1863, and January 25, 1864, and for the remainder, between February 20, and March 14, 1865. These selections were entered by the register of the land-office on June 12, 1865. A part was certified over to the state by the secretary of the interior on September 8, 1870, and the rest on March 11, 1871. These lands were also afterwards patented to the purchasers by the state. The listings over to the state were all after the final approval of the two square league survey of the Rancho Las Pocitas, which was on June 6, 1871; also after the filing of the map of general route of the road by the railroad company in December, 1864, and the withdrawal by the secretary of the interior in January, 1865; as well as after the filing of the map of the definite location of the Western Pacific Railroad Company, on February 1, 1870. But the surveys and selections and issue of certificates of purchase by the state were before the said dates of June 6, 1871, and February 1, 1870. The Western Pacific Railroad was completed in accordance with the terms of the several acts of congress relating to the subject, on or before December 29, 1869, and the company thereby became entitled to the lands granted. A contest thereupon immediately arose before the department of the interior, between the railroad company and the settlers who settled subsequently to the grants on the odd sections, as to what lands were included by the grant, and this was supposed to depend upon the exterior boundaries of the Las Pocitas grant. This matter was earnestly liti gated before the department, a test case, (Arthur St. Clair v. The Western Pacific Railroad Company,) having been made by stipulation with the settlers, until January, 1874, when it was decided in favor of the railroad company. Soon thereafter, on May 12, 1874, the land agent of the company presented a list of lands for which the company claimed patents, including the lands in controversy, when it was discovered that the latter had been listed over to the state by mistake, upon the state selections herein before referred to, as indemnity lands for losses of sections 16 and 36 granted for school purposes, and that they were claimed by purchasers from the state. The claim of the company for patents to these lands was vigorously prosecuted by the company, with varying results; until it was finally determined by the secretary of the interior, upon petition for reconsideration by the company, filed April 22, 1880, that the company was entitled to the lands; but he declined to complicate matters by issuing patents until the question of right should be settled by the courts. Thereupon, and for the purpose of having the question authoritatively adjudicated, upon his request the bill in this

case was filed by the attorney general on July 23, 1883. Upon the allegations of the bill, a demurrer was interposed, on the ground, among others, that the cause of action was barred by the statute of limitations; and if the statute of limitations does not run against the United States, then that the cause of action is stale, and it would be inequitable to enforce it at this late day. The demurrer was overruled, since the statute does not run against the United States, and the railroad company had, from the first, been active in pursuing its right before the department. The delay was entirely owing to the course of procedure in the department, and the large amount of other similar business incident to the administration of its affairs. U. S. v. Curtner, 11 Sawy. 411, 26 Fed. Rep. 296. Since the decision on the demurrer, the supreme court has decided the case of U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Rep. 1086, in which it is held that, after a lapse of 45 years, a suit in the name of the United States to cancel a patent obtained by fraud, and in which the United States has no interest, is barred-the suit being affected by the laches of those whose interests it asserts. The point is, therefore, now again made at the hearing, and this case is relied on as determining the question. We do not think it reaches the case. There has, certainly, been no laches here on the part of the railroad company. It has been pressing its claim earnestly before the department from the first, and it could not go any faster than the business and course of procedure of the department permitted. The company could not sue the governBesides, we do not think the government is wholly without interest. If these lands are within the statutory grant, the company has earned them by a full performance of its part of the statutory contract, and an absolute indefeasible right to a patent, unincumbered by any cloud, has vested. The government, in that case, is legally bound to make a good title. It is legally liable to perform its part of the contract, and issue the patent as required by the statute. The United States are, therefore, responsible to the railroad company for the land, or its full value. By the mistake of their officers, they have put it out of their power to comply with their contract; and they are interested to the full value of the land in setting aside the listing and patents resulting from their mistakes, or having them judicially adjudged inoperative and void, in order that they may relieve themselves from their liability. For these reasons, we do not think the decision relied on reaches the case.

ment.

As we have seen from the facts stated, the lands in question are odd sections within the limits prescribed by the act of 1862, granting lands to aid the construction of the Western Pacific Railroad. The Mexican grant called "Las Pocitas" was a float-a grant of two leagues within exterior boundaries embracing ten or more leagues, unlocated both at the date of the act of 1862, and at the times when the claims of the state to the land in question were initiated. After the rights of both parties, whatever they were, had attached, this grant was finally located and patented so as to exclude the lands in controversy. There was then ample land other than these lands to satisfy this float, both at the time of the passage of the act of 1862, and at the time when the right of the railroad