over that. There were lines in place to be patented, and the patent issued.

Senator NYE. Can we ascertain accurately here this morning the language used by the commission in determining just what acreage was involved in the Lomas de Santiago grant? And do you claim, Judge Finney, that it involved 47,000 acres? Here is a claim that only 17,000 acres, or approximately that, were originally involved.

Mr. MASON. The commission found that the grant was 17,000, but they actually surveyed some 47,000, a difference of 29,000 acres. The finding of the commission was 17,000 acres, and patent was issued for 17,000 acres by the Interior Department. That is a matter of record in the Interior Department.

Mr. FINNEY. The matter of the acreage, of course, is not controlling in the patent. A man may get 150 acres or he may get more or less, but the description of his land by the survey is what is conveyed by the instrument.

Mr. MASON. Is the survey the title, or is the patent the title?

Mr. FINNEY. The patent is the title, and the patent relates to the survey.

Mr. MASON. Then if there was a fictitious survey, or if they surveyed more land than was within the grant they would get title to it?

Mr. FINNEY. The Interior Department was ousted from all jurisdiction over the lands within the survey.

Mr. MASON. In other words, if a patent issued for 10,000 acres and the survey included 200,000 acres that would divest the United States Government of title to the 190,000 acres? Is that true?

Mr. FINNEY. No, sir; that is not necessarily true. If the survey was fraudulent or included through error or mistake lands not intended to be granted or confirmed and the error was discovered in time, suit would lie to vacate or re-form the patent.

Mr. MASON. Suppose the error was not discovered for 40 years. Would it lie then?

Mr. FINNEY. Well, I have my own opinion about that. I think it would not. We might differ.

The CHAIRMAN. The Supreme Court has said in certain cases that the statute of 1891, the six-year statute, only begins to run on the discovery of fraud.

Mr. MASON. That is quite correct.

Mr. FINNEY. But other elements were probably

Mr. MASON. Just a minute, then. Based on that decision of the United States Supreme Court, if this 29,000 acres was erroneously included in that grant the Government could proceed?

Mr. FINNEY. No; I do not think so.

Mr. MASON. Under the decision of the United States Supreme Court?

Mr. FINNEY. I do not think so.

Mr. MASON. Why not?

Mr. FINNEY. In the first place, I think if there was error it was known more than six years ago. In the second place, I do not think the courts will disturb a title so ancient as this on which large amounts of money have presumably been expended and which has

passed from hand to hand by transfer. I think they would say the United States probably had been guilty of laches in not discovering the fraud sooner. Of course, that is only an opinion. Of course I have no interest in this matter, as you realize, Mr. Chairman. This land was patented before I was born and much longer before I entered the Interior Department. I am just giving you my opinion. Mr. MASON. Along that same line, I would like to ask this question, if I may. The dereliction, then, of some one in not prosecuting or not taking steps to set aside a discovered fraudulent survey-that fraud on the part of an agent would bind the United States, then, or that failure to act?

Mr. FINNEY. I think if that fraud or that error was brought to the attention of an official of the Government dealing with those cases the Government would be barred; yes; under the Supreme Court decision, if action was not taken within six years. But I do not think there has been any such error as you are describing.

Mr. MASON. No; I am not asking you to concede that. I only want to make this one observation and then ask a couple more questions.

The application to homestead-and I would like the committee to get this clearly-was not made on any of the land in this Lomas de Santiago or included in the acreage defined in the grant. The grant defines 17,000 acres. It is the extra land that was included in the survey but not included in the grant; that is what the application was made for. It is the sections and quarter sections, the eighties and the forties in that particular tract, called an interstitial space between the Lomas de Sanitago grant and another grant, which is not involved here at this time; it was those sections and quarter sections, the eighties and forties, a list of which Mr. Wickham gave, that is involved here.

I was just going to ask in that connection, if I may; Judge, are you well enough acquainted with the record that you could say what action was taken by the General Land Office after that letter was written by Mr. Wickham?

Mr. FINNEY. You mean after the homestead applications were filed?

Mr. MASON. Filed at Los Angeles; yes, sir.

Mr. FINNEY. You refer now to the indicating

Mr. MASON. Yes, sir. At whose instance were those indictments brought?

Mr. FINNEY. As I say, some 200 or more applications for homestead entry were filed and rejected. Some time thereafter the Commissioner of the General Land Office, according to my understanding, ordered his field agents to make some investigation of the activities of those people who were active in filing. Reports were made by field men, and those reports were brought to the attention of the United States Attorney at Los Angeles, presumably either under the direct order of the Commissioner or under the general authority which field agents and investigators have, and the United States Attorney thereupon secured or attempted to secure the indictment of certain parties who had been connected with these filings.

Mr. MASON. Those indictments were brought against the persons who filed on the list of filings furnished them by Mr. Wickham, were they not?

Mr. FINNEY. I do not know. I presume they were.

Mr. MASON. Won't your records show that?

Mr. FINNEY. I do not know. You mean, Mr. Wickham furnished a list of the lands

Mr. MASON. Furnished a list of the lands before any filings were Senator CAMERON. Have you seen that list?

Mr. FINNEY. No.

Senator NYE. There is such a list.

Mr. MASON. You are familiar with Mr. Wickham's handwriting, are you not, Judge?

Mr. FINNEY. I think so; yes.

Mr. MASON. I will ask you to run through these letters

Mr. FINNEY. Of course that can not affect the legal status of this

case.

Mr. MASON. No; but it can affect going out and indicating a man for something which you advised him he might do. [Handing a paper to the witness:] That is a letter from your office, is it not, sir? Mr. FINNEY. That seems to be a photostat of a letter signed George R. Wickham. [Reading :]

In the office somewhere is two volumes of Lester's Land Decisions. Perhaps they are stored in the junk heap above the cupboards. See if you can find them and loan them to bearer, Mr. Ben McLendon, of 307 Exchange Building, Los Angeles, and oblige. Geo. R. Wickham. August 24, 1922.

Mr. MASON (handing another paper to the witness). I ask you to examine that paper writing and see if you recognize it.

Mr. FINNEY. This is a carbon copy of a letter with the stamp of Mr. Wickham's name on it, addressed to Mr. Ben McLendon. It refers to a personal call wherein Mr. McLendon evidently requested the names of certain homesteaders who in 1906 filed within the Lomas de Santiago and San Joaquin Ranchos. He says, "I have the honor to furnish the information which you have requested," and then follows the list of names and the land descriptions.

Mr. MASON. That is in the record, may it please the committee. Mr. FINNEY. I see no objection to furnishing to a party who inquires information from the records of the office, but still that does not affect the legal question, nor does it bind the Secretary of the Interior.

Mr. MASON. Would it not, in good taste, bind the Commissioner of the General Land Office when one of his subordinates furnishes a list

Mr. FINNEY. It might lead the people to believe that they had a right to file.

Mr. MASON. And then turn around and indict them for doing it? Mr. FINNEY. I think perhaps if I had been writing such a letter I would have called attention to the outstanding patents. However, this department is not prosecuting that criminal case at this time, as far as I know.

Mr. MASON. No; there was a motion to quash filed, and the indictments were dismissed. And the very people that filed upon the lands on this list that was furnished by the office were required, each and every one of them, to put up a bond of $20,000 and remain in durance vile for some several months.

Senator DILL. Judge Finney, I have here these two opinions, one by the Supreme Court in 1863 in the case against Yorba, and the other by the District Court of California in 1876. I notice the Supreme Court decision refers to the Sierra grant. Does the Sierra grant include all these lands?

Mr. FINNEY. Are you speaking of the Yorba decision now?
Senator DILL. Yes.

Mr. FINNEY. I can not say. The Attorney General, in his letter that I read, said that the litigation was res judicata by the case of the United States v. Yorba and the other case.

Senator DILL. There is no doubt about what this decision says about the ground covered by and known as the Sierra grant. It absolutely denies the claim against Yorba and sustains his patent. The district court decision I have not read, but I find here quite a full discussion of the act of March 30, 1851, creating this commission and its work.

The CHAIRMAN. Does it give the powers vested in the commission? Senator DILL. Yes; and a full discussion of them. And here we are 76 years from the time the commission acted.

The CHAIRMAN. And that was confirmed by the Supreme Court of the United States?

Senator DILL. Yes; and by the Circuit Court of California in another case. If it covers these particular lands we are dealing with I think it would be a waste of money to go into it.

Mr. FINNEY. In one of my decisions I cited U. S. v. Peralta, 99 Fed. 618, in which it was held that the decree fixing the boundaries of and confirming a Mexican grant—

When appealed from, and when carried into effect by the issuance of patents by the United States in conformity thereto, became final and conclusive as to such boundaries, and the court was deprived of further jurisdiction to modify the same.

That was our theory, you see, that this patent having issued according to the boundaries established by that survey, it is a final matter and the jurisdiction is gone. So that is the situation. But two of these grants, so far as I know, have come before the department-certainly they are the only ones that have come before the department during the last year.

Senator DILL. Is not this the situation, that the only thing Congress could do would be to create a new commission to go in and overturn the decisions of the commission of 1851? And then the court would protect the present holders of the land as the parties having the first right to patent the land?

Mr. FINNEY. I rather think they would, but I have some doubt about the power of Congress to create such a commission.

Senator DILL. At least as to its acts being effective enough to overturn the decisions of the commission of 1851?

Mr. FINNEY. Yes.

Senator NYE. Judge Finney, can the grant itself for this Lomas de Santiago tract be produced?

Mr. FINNEY. You mean the original grant by the Mexican, or Spanish, Governor? I can not tell you offhand.

Senator NYE. In that connection I should like to insert this statement in the record here, that the chief clerk of the Senate of the Mexican Government on the 25th day of November, 1924, certified:

That in the file of this office there exists no record whatsoever to show that the Congress of the United States or Mexico did ever approve the grant which it is said the Governor of the State of Lower California, Pio Pico, granted to Mr. Teodocio Yorba for the lands known as the Rancho Lomas de Santiago during the years 1845 and 1846.

Senator DILL. But here is the Supreme Court of the United States saying it has approved that grant and patents are issued on it.

Senator NYE. The claim has been made before the committee that the Supreme Court of the United States has many times held that title under a Mexican grant can not be held valid without evidence of its being recorded as retired by Mexican law.

Mr. FINNEY. The inference from that would be, of course, that there had been some evidence before the court that these had been recorded. I do not know.

Senator DILL. They discuss here the question of whether or not these grants were antedated, whether or not they were fraudulent, and after discussing that they confirm the grant.

Mr. MASON. What decision is that, Senator?

Senator DILL. In the case of the United States v. Yorba, in the Supreme Court of the United States.

Mr. MASON. Yes; but they do not confirm the grant in that case.
Senator DILL. The patents were issued as the result of that.
Mr. MASON. Yes; but as I read that the grant is not confirmed

at all.

Senator DILL. Well, the patents were issued under the decision of the Supreme Court of the United States

Mr. MASON. The Supreme Court did not go into the question in that case at all.

The CHAIRMAN. What was the decision of the Supreme Court? Mr. MASON. They do not sustain the grant in that case at all. Senator DILL. They sustained Yorba.

Mr. MASON. They sustained the patent.

Senator DILL. Yes-I say, they sustained Yorba's patent.

Mr. FINNEY. I have been at more or less of a loss as to just what was wanted of me here→

Mr. SUMMERS. The Yorba who was involved in that case of United States v. Yorba was another Yorba. That is not this case at all. The one was Teodocio Yorba, and this is Bernardo Yorba, an entirely different person and a different grant.

Senator DILL. Is it not a fact, though, that these present owners hold their land under a patent from the United States?

Mr. SUMMERS. They are in possession; they are not the owners; the paper is not a patent-it is a paper that could not move the title. Senator DILL. Then it can't be overturned; they do not have to come to Congress.

Mr. SUMMERS. The answer to that is this. Let me ask this question: Judge Finney, is there a Lomas de Santiago grant that was made prior to the 7th day of July, 1846?

Mr. FINNEY. There is a Lomas de Santiago grant, which has been surveyed and on which patent has issued. I can not remember the dates.

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