The opinion concludes as follows: "your decision upon the entire survey of the claim, confirmed by said decree and Acts of Congress, except as herein modified, is affirmed." The modification alluded to was his direction in conformity to the recommendation of Surveyor-General Day that the line of ordinary high-water mark of the bay should be followed, and not the banks of Mission and other creeks; but that said creeks should be crossed at their mouths in following the line of the bay. To this end he directed that a map, known as Eddy's Red Line Map, should be made the basis of said amended survey, which map the Secretary claimed had been established, sanctioned and recognized in the most solemn manner by the State laws and by the city for years, and contained the best available evidence of the line of ordinary highwater mark of 1846, around that portion of the city.

Soon after the conclusion of Mr. Schurz's term of office and Secretary Kirkwood's appointment as Secretary of the Interior, an application to the latter was made for a re-hearing, in support of which a report from the surveyor-general's office was brought to his attention referring to certain representations of Deputies Minto and Allardt setting forth that the red line on Eddy's map, as ordered by Mr. Schurz, could not be followed; that the said red line diverged widely from ordinary high-water mark, at one point extending two hundred feet out into the bay, at another running along the side and on the top of the bluff; and at still another at an elevation of sixty-eight feet above tide level; and that the marsh lands near the mouth of Mission creek were reached by the ordinary high tides and totally submerged, from one to eighteen inches, by about one hundred and twenty tides every year.

To this petition for a re-hearing, based on these reports from the surveyor-general's office, Secretary Kirkwood issued an order to the Commissioner of the General Land Office, in these words: "I desire the survey, ordered by my predecessor, to be made at once, according to the best judgment of the surveyor-general. When so made it will be a proper subject for consideration by your office and the Department. You will so instruct the surveyor-general immediately.

Mr. Teller, who had become Mr. Kirkwood's successor, was informed that the surveyor-general of California was not making the survey ordered by Mr. Schurz, but was disregarding that order under what he construed to be the discretion vested in him by the words "according to your best judgment." Thereupon Mr. Teller telegraphed the surveyor-general to suspend his operations. But, inasmuch as the survey and field notes had been returned to his office, he, notwithstanding Mr. Teller's order, platted and sent it forward to the Department with his approval. The survey thus made was substantially a repetition of the Stratton survey.

Another application was made by Messrs. Shellabarger and Wilson, attorneys for claimants under the Stratton survey, to Secretary Teller that the whole matter be re-heard and the survey made by Allardt and

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Minto confirmed. This motion was orally argued before Secretary Teller on the 11th day of December, 1882, and on July 12, 1883 (2 L. D., 346) he rendered his decision in which he substantially confirmed that of his predecessor and directed that "in running along the line of ordinary high-water mark of the bay, the main shore or coast line of such body of water, identified by its larger description, shall be followed, cutting across the mouths of streams, estuaries and creeks which, intersecting the body of the peninsula, find their entrance into said ocean or bay."

Instructions in accordance with this decision were issued by the Commissioner of the General Land Office to the United States surveyorgeneral of California, in obedience to which the deputy-surveyor, F. Von Licht, proceeded to make a survey of said lands, a map of which, with his report, was sent on to Washington. Said deputy-surveyor, however, in certifying that it was in accordance with instructions received, stated that it was his belief, based upon close inspection of the ground and investigations made, that the survey was not in accordance with the decree of the United States circuit court.

As a part of the history of this case it is proper to state that before action was taken in the Land Office on this survey, a mandamus was sued for, in the supreme court of the District of Columbia, on the relation of the city and county of San Francisco, to compel the Commissioner to issue the patent in accordance with the Stratton survey upon the ground that the original opinion of Land Commissioner Williamson, approving that survey, was final, and that no appeal lies to the Secretary of the Interior in the matter of surveys of private land claims. The court, after argument, denied the writ.

A resolution was also introduced in the 48th Congress for the purpose of interfering with the issue of any patent based upon any other than the Stratton survey. Upon this latter resolution the judiciary committee made a report holding that the Secretary of the Interior was the supervisory head of the Department; that the Commissioner of the Land Office was his subordinate; that no action of the latter is beyond the reach of appeal to the former; that the Secretary of the Interior had good reason for deciding that the boundary line of San Francisco must run along the bay and cross the mouths of the estuaries and creeks from headland to headland thereof; and that if the grantees of the State or others had superior rights to those of the city, they could assert them in the courts of the country without any legislative assistance, and therefore recommended that the resolution lie on the table.

Pending these proceedings in the court and in Congress, the Von Licht survey was approved by the Commissioner of the General Land Office, and on June 20, 1884, the patent of the United States in accordance therewith was issued to the city of San Francisco, signed by the President, recorded in the Department, forwarded to the mayor of San

See also 2 L. D., 353.

Francisco, and accepted in behalf of the city and county. The city, now, by its attorneys, insists upon the correctness and legality of said patent and protests against its cancellation and the issue of any other patent.

The decisions of Secretaries Schurz and Teller, above referred to, were made after hearing extended argument by counsel, and after elaborate examination. Every important consideration bearing upon the subject which has been pressed upon me was fully presented to them. The correctness of the Stratton survey itself; the recognition of the Stratton survey by the supervisors of the city; their acquiescence in numerous acts of the State assuming the Stratton survey to be correct, and the consequent estoppel upon them to contest its correctness; the conclusiveness of the approval of the survey by the Commissioner of the General Land Office; the refusal of the supervisors of the city to order an appeal from his decision; the consequent invalidity of the action of the city attorney in making an appeal or attempting to make one; the want of any appellate authority whatever over the Commissioner of the General Land Office respecting matters of surveys of private land claims; the impossibility of complying with the directions given by Secretary Schurz and reiterated by Secretary Teller for the new surveys; were all argued before the two Secretaries above named and were disposed of by them in carefully prepared opinions.

I am now asked to treat this consideration and judgment of my predecessors, as well as the opinion pronounced by the judge of the circuit court of the United States, as recorded in the official reports of its decisions, as of no validity; to hold that my predecessors had no jurisdiction to review the act of the Commissioner; that the circuit court had no jurisdiction to render the decision it pronounced; and that the Commissioner of the General Land Office was the only officer clothed with lawful authority to determine the validity of the survey of the land confirmed to the city. In other words, I am called upon to disregard as null the action of my predecessors and to reopen the question as to the title of the city to the land covered by the patent issued to it.

It is to be observed that this application does not ask that I, as the supervising authority of this Department, should review and correct its previous action in a case undisposed of and still pending in the Depart ment. The question presented is whether when a contest for title is once closed by the issue of a patent to a claimant, which is accepted by such claimant, the jurisdiction of the Secretary of the Interior over that title continues. In other words, when the Land Department, acting within the scope of its authority, issues a patent which is delivered to and accepted by the grantee, the Secretary of the Interior has the right to annul that patent and issue another and a different one in its stead. In Moore v. Robbins (96 U. S., 530) the court said:

"While conceding for the present to the fullest extent that when there is a question of contested right between private parties to receive

from the United States a patent for any part of the public lands, it be longs to the head of the Land Department to decide that question, it is equally clear that when the patent has been awarded to one of the contestants and has been issued, delivered and accepted, all right to control the title or to decide on the right to the title has passed from the Land Office. Not only has it passed from the Land Office, but it has passed from the executive department of the government." The court goes on to say, "The offices of Register and Receiver and Commissioner are created mainly for the purpose of supervising the sales of the public lands and it is a part of their daily business to decide when a party has by purchase, by pre-emption, or by any other recognized mode established a right to receive from the government a title to any part of the public domain. This decision is subject to an appeal to the Secre tary if taken in time, but if no such appeal be taken, and the patent issued under the seal of the United States, and signed by the President, is delivered to and accepted by the party, the title of the government passes with this delivery. With the title passes away all authority or control of the executive department over the land and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can of his own volition recall, cancel or annul the instrument which he has made and delivered. If fraud, mistake, error or wrong has been done the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or re-conveyance of the land as to individuals, and if the government is the party injured this is the proper course." Again the court says, the functions of the executive department "necessarily cease when the title has passed from the government, and the title does so pass in every instance where, under the decisions of the officers having authority in the matter, a conveyance generally called a patent has been signed by the President and sealed and delivered to and accepted by the grantee. It is a matter of course that after this is done neither the Secretary nor any other execu tive officer can entertain an appeal. He is absolutely without authority. If this were not so the titles derived from the United States instead of being the safe and assured evidence of ownership which they are generally supposed to be, would be always subject to the fluctuating and in many cases unreliable action of the Land Office. No man could buy of the grantee with safety because he could only convey subject to the right of the officers of the government to annul his title. If such a power exists when does it cease? There is no statute of limitations against the government and if this right to reconsider and annul a patent after it has once become perfect exists in the executive department it can be exercised at any time, however remote. It is needless to pursue the subject further, the existence of any such power in the land department is utterly inconsistent with the universal principle on which the right of private property is founded. The order of the Secretary of the Interior therefore in Moore's case was made without authority and is utterly void and he has a title perfect both at law and in equity."

The court here re-affirms the doctrine laid down in Johnson v. Towsley (13 Wallace, 72,) in the following language:

"The decision of the officers of the land department made within the scope of their authority on questions of this kind is, in general, conclusive everywhere, except when reconsidered by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake that decision is conclusive even in courts

of justice when the title afterwards comes in question; but that in this class of cases as in all others there exists in courts of equity the jurisdic tion to correct mistakes, to relieve against frauds and impositions, and in cases where it is clear that those officers have by a mistake of the law given to one man the land which on the undisputed facts belonged to another, to give appropriate relief."

If, now, I should, as the Secretary of the Interior did in Moore's case, after the patent has been issued by the Land Office; signed by the President, sealed and delivered to and accepted by the City of San Francisco, order that patent to be recalled and another one issued, the supreme court would be bound to say under this decision that "The order of the Secretary was made without authority and is utterly void." The supreme court expressly says that after this is done neither the Secretary nor any other executive officer can entertain an appeal. In Steele v. The Smelting Company (106 U. S., 450) the court says:

"We have so often had occasion to speak of the land department, the object of its creation, and the powers it possesses in the alienation by patent of portions of the public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlook our decisions on the subject."

After reviewing these decisions the court uses the following language: "So with a patent for land of the United States, which is the result of the judgment upon the right of the patentee by that department of the government, to which the alienation of the public lands is confided, the remedy of the aggrieved party must be sought by him in a court of equity, if he possess such an equitable right to the premises as would give him the title if the patent were out of the way. If he occupy with respect to the land no such position as this, he can only apply to the officers of the government to take measures in its name to vacate the patent or limit its operation. It cannot be vacated or limited by the officers themselves. Their power over the land is ended when a patent is issued and placed on the records of the Department; this can be accomplished only by regular judicial proceedings, taken in the name of the government for that special purpose."

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From these and numerous other decisions that might be cited to the same effect, denying all authority whatever in the Interior Department to recall or cancel a patent once issued by its orders, I can come to no other conclusion than that if every allegation of those who make this application could be established, as to the circumstances under which the patent was issued, as to the unwise and erroneous action of Secretary Schurz and Secretary Teller, their errors of law in the case or mistake of facts; the formal defect in the proceedings for appeal made to Secretary Schurz; the only remedy is with the judiciary and not in any authority vested in the head of this Department over the subject.

The case of Adams against Norris (103 U. S., 591) is cited as being an authority for the power which I am here asked to exercise. That was a case where a patent was issued for a portion of the Mexican land grant confirmed by the circuit court. Subsequently, finding that the