Mr. SUMMERS. Where was it recorded?

Mr. FINNEY. I do not know.

Mr. SUMMERS. Was it recorded anywhere?
Mr. FINNEY. I do not know.

Mr. SUMMERS. Could it be a grant if it was not recorded under the decision of the Supreme Court?

Mr. FINNEY. That is not a question for me to settle.

Mr. SUMMERS. All right. Let me ask you this question: Can the Land Department pass title to the lands of the United States without an act of Congress?

Mr. FINNEY. No, sir.

Mr. SUMMERS. Under what act of Congress did the Commissioner of the General Land Office issue a patent to Teodocio Yorba and his heirs for 47,000 acres of land?

Mr. FINNEY. That patent was issued pursuant to the findings of a commission appointed under the act of 1851 to adjudicate these old grants.

Mr. SUMMERS. Under that act, all right. But the act of Congress of March 3, 1851, was enacted by Congress for the specific purpose of finding out, so the Supreme Court says, what is public domain and what is private property.

Mr. FINNEY. Quite right.

Mr. SUMMERS. And that specifically stripped the Land Department of jurisdiction until the commission should find that the United States had no title.

Mr. FINNEY. Correct.

Mr. SUMMERS. All right. But a patent is an instrument by which the Government conveys title to land, isn't it?

Mr. FINNEY. That is right.

Mr. SUMMERS. All right. But the commissioner could not issue a patent when it was found that the Government had no title to convey, could he?

Mr. FINNEY. I know that a great many of these grants have been considered by these commissions or boards under the act of 1851, and they have been certified, plats and field notes, etc., have been filed, and those particular patents have been issued by the Land Department.

Senator DILL. Yes; and these owners to-day hold them as a result of patents issued by the United States Government, and the United States Government can not go in and overturn its own patents. Mr. SUMMERS. Let me ask you this: If the United States had no title could the commissioner's patent move the title to that land? Mr. FINNEY. I can not quite understand that proposition. If this were public land of the United States-you claim now, as I understand it, Judge, that this is public land of the United States. Mr. SUMMERS. Absolutely; there is no doubt about it.

Mr. FINNEY. All right. Now, if it ever had the status of public land, if it had it in 1851 or 1856 or 1858, a patent issued in 1868, whether rightfully or wrongfully, and by metes and bounds conveyed this land. So it is gone as far as the department's jurisdiction is concerned.

Mr. SUMMERS. That is a conclusion.
Mr. FINNEY. That is my view of it.

Mr. SUMMERS. Well, let us find out. If there was a valid grant to Yorba then that was for four leagues, wasn't it?

Mr. FINNEY. Yes.

Mr. SUMMERS. If there was a valid grant it was for 17,000 acres, not for 47,000. If there was a valid grant from Mexico to Yorba when Mexico could grant and Yorba could take, that took the title, didn't it?

Mr. FINNEY. If there was a valid grant——

Mr. SUMMERS. If there was a valid grant.

Mr. FINNEY. Yes.

Mr. SUMMERS. So that any patent that the Government could issue could not add to that grant, could it?

Mr. FINNEY. Possibly not. It might be a further assurance.
Mr. SUMMERS. It could not pass title, could it?

Mr. FINNEY. Well, if any of this land passed under the grant to Yorba, it is gone. If there was any public land of the United States there that was patented in 1868, on the face of the record, it is gone by patent.

Mr. SUMMERS. Wait a minute; that is a conclusion. If the act of Congress of March 3, 1851, was an act under which the Commissioner of the General Land Office could not pass title, then it did not pass it, did it?

Mr. FINNEY. If it was an act under which it could not pass, if there was no other act under which it could pass, possibly that would be correct.

Mr. SUMMERS. Now, then, if title ever passed to Yorba, it did not pass under the act of March 3, 1851, did it? It did not, because it could not?

Mr. FINNEY. It seems to me that is not getting anywhere, because Congress did pass the act and the commissions did function under the act. They made findings, whether rightfully or wrongly. Surveys were made. So I can not quite see, Judge, where that is getting us.

The CHAIRMAN. I think, Mr. Summers, the committee has a very good idea of the questions involved here. Our time is short, and we must proceed. Judge Finney, I do not know that there is anything more you can give us that would be enlightening.

Mr. FINNEY. I do not think of anything more to suggest.
The CHAIRMAN. We would like to hear from Mr. Parmenter now.

STATEMENT OF HON. BERTICE M. PARMENTER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. PARMENTER. May it please the committee, I do not know very much about this matter. After I received your call last evening, we got the office files to see what they showed about it. We have here, evidently, a copy of the patent.

Senator NYE. Not a copy of the patent. You mean the decree. Mr. MASON. No; the grant.

Senator NYE. The grant was what I was speaking about.

Mr. PARMENTER. In our records here I find a memorandum dated November 26, 1894, which was under my predecessor, Mr. Wells,

prepared by Mr. Underwood, special assistant to the Attorney General. There are some 21 pages. He says:

My conclusion is that no action can be taken to attack the patent here involved.

And he

goes into it in some considerable detail and cites authorities. Senator DILL. Do you understand that there is any land held in southern California covered by this resolution that has not been patented by the United States?

Mr. PARMENTER. I understand it has been patented.
Senator DILL. It has all been patented.

Mr. PARMENTER. All that applies to this transaction.

Senator DILL. Yes; all that is covered by this resolution has been patented by the United States?

Mr. PARMENTER. Yes, sir.

Senator DILL. And they hold it under patents issued by the Land Office?

Mr. PARMENTER. That is my understanding.

Now, on March 6, 1925, which was before my time, Mr. Horace H. Smith, who committed suicide about Christmas time, who had been in charge of that since I have been in office, made a memorandum here of about 20 pages. The closing portion of it is:

After having acquiesced in both of those decisions, it does not seem to me that an action brought to cancal a patent 57 years old, following a delay of 79 years after the decision in the Flint case, would be favorably received by a court of equity.

Now, many times this matter has been up in the department since I have been there, and it came back again. On November 5, 1925, Mr. Smith prepared this memorandum and signed it :

On December 4, 1924, Hon. E. C. Finney, First Assistant Secretary of the Interior, without recommendation, suggested consideration of the advisability of a suit by the Government to reform a patent issued under the Rancho Lomas de Santiago grant for 47,426.60 acres, or nearly 11 square leagues, in southern California, instead of the 4 square leagues, more or less, covered by the grant and embraced in a survey made by the Mexican Government.

I recommend that no suit be instituted, for the following reasons:

1. Any action attempted to be maintained would be barred by the statute of limitations.

2. The facts that are involved in such a suit are res judicata.

3. The institution of such a suit would be the third attack by the Government upon the title to this land, and this in my opinion would be against sound public policy now under the facts so submitted.

4. There have been two dismissals in the Supreme Court by former attorneys general of suits involving the same subject matter and the same relief.

Since I have been sitting here this morning I find that heretofore this has been considered in our department by Messrs. Underwood, Dyer, and H. H. Smith. Then there is another memorandum hereI do not see it before me at this moment-where Mr. Eustis Smith, an assistant who is not now with the department, came to the same conclusion. I also have the letter written to the Secretary of the Interior November 11, 1925, by the Attorney General; that has already been read in and you have it.

About all the time I have had since you called me yesterday evening has been spent in going through our files, but about all the aid I can give to the committee is a statement of the amount of attention that has been given to this matter in the Department of Justice.

I would be glad to furnish you with copies of these memoranda and decisions, which I understand go into all the details. `I did not have time to have copies made before I came over here.

Senator DILL. Suppose a committee were appointed and on investigation they found that the Land Office did issue patents back fifty some years ago on lands on which it should not have issued them and that the holder has remained in possession undisturbed all these years. What would be the attitude of the courts in a suit of the United States to dispossess them?

Mr. PARMENTER. My notion about it is that the court would not disturb it.

Senator DILL. There is not any doubt about it, is there?

Senator NYE. But can it be safely said that they have held there without being disturbed?

Senator DILL. The only time the Government attempted to disturb them they were confirmed.

Mr. PARMENTER. I am not familiar with the facts. I did talk with Horace Smith and we discussed it thoroughly, and I thought I understood the situation at that time. I do not understand that they have ever been disturbed in their possession.

Senator DILL. Not by the United States, certainly.

Mr. PARMENTER. My recollection is, by anybody.

Senator DILL. And the action would have to be by the United States?

Mr. PARMENTER. I think so. They are all trying to get us to act. Senator DILL. Mexico is not claiming anything here?

Mr. PARMENTER. No. I think there are many questions that might have been raised in a proceeding away back at that time which would have been vital in this matter, but those things having been passed many of those points that could have been successfully raised then can not be raised now.

Senator DILL. And if they could not be successfully raised in 1863 and 1876 that much more apparent is it that they could not be successfully raised now.

Mr. PARMENTER. And I notice while sitting here that two former attorneys general had this up in court and had the cases dismissed, as this memorandum says, for the reason that there was no merit in the contention.

Mr. MASON. Mr. Parmenter, have you a memorandum there of May 20, 1925, ordering the survey and an attack on this patent? Mr. PARMENTER. No, sir; I have not, but I do recall in a general way about that.

Mr. MASON. There was such an opinion, was there not?

Mr. PARMENTER. Well, there was some talk about it; I do not know whether it was an opinion or what it was. As I remember, I was opposed to it, because it would have cost lots of money and would have got nowhere, for the reason that we had already come to the conclusion that there was no merit in the contention and therefore a survey would be useless.

Mr. MASON. Do you have a copy of that in your office?

Mr. PARMENTER. I do not know.

Mr. MASON. Can you find out, and, if so, furnish it to the committee?

Mr. PARMENTER. Oh, yes; surely.

Mr. SUMMERS. Mr. Parmenter, this was prior to your coming to the office. That opinion was prepared by Judge Wells and approved by General Sargent on May 20, 1925.

Mr. PARMENTER. I think the matter came there

Mr. SUMMERS. I was present at the time.

Mr. PARMENTER. I think the matter came there, and at that time I said, "Yes; let them go and survey it." Then I gave it more mature consideration and reached the conclusion that a survey would be a useless expenditure of money, and I am of that opinion now.

Mr. FINNEY. As of May 25, 1925, a letter was received from Mr. Wells suggesting a survey. I haven't the letter, but I have a reference to it here in another decision.

The CHAIRMAN. Were the three attacks that were referred to in the letter of the Attorney General all against this Rancho de Lomas de Santiago?

Mr. PARMENTER. That is my understanding; yes, sir.

The CHAIRMAN. And each failed?

Mr. PARMENTER. Each failed.

The CHAIRMAN. How far were they pursued?

Mr. PARMENTER. I noticed a moment ago in looking through these papers here that they were appealed, and when they got up to the appellate court, instead of pursuing it to a final adjudication it was dismissed. I believe there was one of them in the State court.

Senator NYE. The main point, it seems to me, of the complaint that has been left here with the committee is that those homesteaders have been barred from carrying their action into court. Mr. Mason, can you state that situation in just a few words, how the homesteaders are barred from the courts and from carrying on their action?

Mr. MASON. Why, there is no remedy at law for them. What is their remedy? If they can not bring a suit in the name of the United States they can not attack this patent. The only party that can bring this action is the United States.

Senator DILL. All right. If the United States brought suit and it was decided in the courts that the Commissioner of the General Land Office had wrongfully issued these patents who would have the preference right to file on the lands?

Mr. MASON. Certainly a man would not have a preference who was holding with guilty knowledge.

Mr. PARMENTER. That does not answer the question.

Senator DILL. No; not at all.

Mr. MASON. Why, the priority of the application on file would determine it, according to the law.

Senator DILL. I can not agree with you.

Mr. MASON. The law fixes that.

Mr. SUMMERS. This is the answer to your question, Senator Dill. Even though the suggestion of Judge Finney should prevail, a homestead would amount to only 160 acres, not 47,000 acres. So if we hold that Irvine, who is in possession of this land now, has a preference right, all he could ever get would be a preference right to 160

acres.

Senator DILL. Who did this man Irvine get this property from?