declaring it "had no power or jurisdiction to enter said order," and the decree thereafter remained as originally made by the Board. When the matter of the survey of the Sobrante grant under this decree was before your office and afterwards on appeal before this Department,it was insisted that said decree was ambiguous, that by a proper construction of it and the grant, the latter embraced not only the lands lying between the five named ranchos, but also all the lands lying within the exterior boundaries thereof, and further that the exterior boundaries of the Moraga grant extended on the south beyond the patented lines of San Lorenzo, and consequently included the land now sought to be pre-empted by Rees.

Mr. Secretary Kirkwood, on February 23, 1882, decided adversely to these pretensions, holding that the claim as presented and confirmed was only for land lying between or partly surrounded by the five ranchos On April 4, 1883, Secretary Teller declined to review said decision and patent was issued in pursuance of same.

It is contended now that these claims and pretensions of the confirmees or those claiming under them-the attempted amendment of the decree in the district court and in the matter of the survey, so as to embrace the exterior as well as interior lands, (those between as well as those outside the five grants,) should be accepted as evidence that such claim had always been made; and held the tract in reservation until the final adjudication of said claim by Secretary Teller on April 4, 1883, the lands all this time being sub judice.

I can not concur in these views. The attempt to alter the decree was a mere futile act, determining nothing though showing that the confirmees thought it did not cover the pretensions then set up, and which do not seem to have been before entertained by them, at any time within the preceding eleven years, which had elasped since their claim had been presented for confirmation, as shown before.

The re-assertion of these pretensions in the matter of the survey was but an attempt to do indirectly what had been formerly sought to be obtained directly by the change in the language of the decree. Both of these efforts properly and signally failed in the view of the very plain and unambiguous language used throughout the whole case.

It was competent for the Castros to have set up a claim to any land they might choose to select under their Sobrante grant, and the assertion of such claim before the Board would of itself have placed the land in reservation. But having set up a claim for land "lying in be tween" five certain ranchos, they can not after final decree giving them exactly what they asked for, be allowed to say that they had set up also another and different claim. The record is conclusive on this point and acts as an estoppel on them and those claiming under them. The claim was for land "lying in between" certain ranchos, and now it insisted this meant land lying on the "outside" of said ranchos. I see no ambiguity whatever. The contention is too baseless to be consid

ered while language is capable of conveying a meaning, and intelligence remains to comprehend it.

But it is further insisted that inasmuch as said decree was actually amended on March 27, 1863; which amendment remained of record from that time until July 26, 1866, a "claim" to the land within the exterior boundaries was actually in existence-recognized in the formal decree of the court, not only as having been made, but as valid—at the time the act of July 2, 1864, increasing the grant to the railroad was passed, embracing within its limits the land in controversy; and that this asserted and recognized claim exempted the land from the operation of said grant, so long as the same thus remained of record.

To this the answer is twofold: (1) Even though a claim had been properly made to the sobrante land within the exterior out-boundaries of each and all of the five grants, there was no sobrante of the Moraga grant on the south, where the land claimed is situate, the patented lines being coincident with the out-boundaries of the grant, as described and claimed before the Board; and (2) the act of March 2, 1851, requiring all "claims" to be filed within two years thereafter, by no possibility can a claim, set up, so far as the record shows, for the first time ten years after the limitation fixed by said act had expired, be regarded as such a claim as would place the land in reservation under its provisions. Besides, the very tribunal which thus allowed the amendment to be made ordered the same to be stricken out on the distinct ground that it had been made by a tribunal without jurisdiction; and no appeal was sought to be taken from this ruling. Surely it is a most extraordinary contention to hold that such an act, confessedly extrajurisdictional, could confer any rights.

I therefore dismiss the pretence that the land in controversy was within the claimed limits of the Sobrante grant.

I proceed now to inquire whether the land in controversy was em braced within the claimed limits of the San Lorenzo grant.

This was a grant of six square leagues, contained in larger bounda ries, which on the east, north and west are described in the grant and diseño, accompanying the expediente as follows: "By the Rancho of Senor Amador, by that of San Ramon, by that of Senor Moraga, by that of the Peraltas" (San Antonio), etc.

The petition filed before the Board claims the same boundaries, substantially, omitting, however, the call for the lands of Amador, and making San Ramon and Moraga the west boundary. The omission of the call for the lands of Amador is unimportant, inasmuch as they were the southerly part of San Ramon, and the call for that ranch might be fairly construed to embrace both.

Designating San Ramon and Moraga as the west boundary is un. questionably error in the petition; San Ramon being, in fact, part of the east and northeast boundary, and Moraga the north boundary, until the east line of San Antonio is met. But, independently of this,

the expediente, diseño and grant are filed with and made part of the petition to the Board, and are properly referable to in order to ascer tain the grant sought to be confirmed. Within the boundaries of San Lorenzo as thus claimed is located the land in controversy.

The San Lorenzo grant was confirmed by the Board February 14, 1853, and this confirmation became final in the district court July 6, 1855; a survey was made in November, 1859, which was set aside and a new one ordered November 11, 1863. This order was vacated October 10, 1864, and a decree, fixing and defining the western boundary of the rancho, passed and further survey ordered, which was made and approved by the surveyor-general on October 17, 1864, and on appeal was affirmed by the United States circuit court October 31, 1864, and patent issued February 14, 1865.

From the aforegoing, it appears that the land remained in reservation because of the San Lorenzo grant until final approval of the survey by the circuit court October 31, 1864, the right to appeal thereto in pending cases being reserved by act of July 1, 1864, for twelve months after its passage.

The next question requiring consideration is, whether this tract, being within the out-boundaries of the San Lorenzo rancho at the date of the passage of the act making the grant, was excepted from the operation of said act. The particular question involved is this: Are lands within the granted limits, which were within the boundaries of a private land claim at date of the granting act, but which were released from such reservation at date of the definite location of the road excepted from the grant?

My predecessor's answer, in the case of Central Pacific Company (2 L. D., 477), was in the negative; but as its correctness is denied by the appellant, I will re-examine the question. I know of but two cases in the supreme court of the United States which are supposed to answer it in the affirmative, namely, Leavenworth, Lawrence and Galveston Railroad Co. v. United States (92 U. S., 733) and Newhall v. Sanger (92 U. S., 761). But, upon examination of these cases, I am of opinion that they do not so answer it.

In the former case, the court adverted to the fact that the granting act contained no provision looking to the extinguishment of the Indian title to the lands in controversy, which had by treaty been reserved to the Osage Indians "so long as they may choose to occupy the same," and that there had been no action looking to such extinguishment at date of the grant; and they held that, regarding the intent of Congress as doubtful for this cause, the grant must be construed against the company, and as not passing title to the lands within the reservation at its date; but that in fact the proviso to the act, excepting from its operation "all lands heretofore reserved to the United States," removed all doubt, and made plain the intention of Congress not to grant them. Now, the Pacific Railroad grant does not contain the proviso just re

ferred to, and, furthermore, at date of its passage the act of March 3, 1851, providing for the settlement of private land claims in the State of California, was in existence and in operation, and it was within the power of the government to determine the number and extent of such claims at any time. Wherefore the controlling facts in that case are not present in the case before me, and for said reason I cannot regard that decision as governing it.

In this case of Newhall v. Sanger, the decision was that certain lands, which were covered by a fradulent Mexican claim at date of a certain withdrawal for railroad purposes did not pass to the company. But, in their concluding remarks, the court said: "As the premises in controversy were not public lands either at date of the grant or of their withdrawal, it follows that they did not pass to the railroad company." This remark has been by some construed to mean that as the lands were not public at date of the grant they did not pass to the company, whether or not they were public at date of the withdrawal. Without stopping to show why this view is palpably erroneous, it is sufficient to say that the court themselves have otherwise expounded their remark. In Ryan e. Central Pacific R. R. Co. (5 Sawyer, 260), the circuit court. said that there was no doubt, under the decision in Newhall v. Sanger, "that the lands in that case would have passed to the railroad company if the Mokelumne grant had been finally rejected before the line of the road had become definitely fixed." This last case came in due time before the supreme court (99 U. S., 382), and they expressly affirmed the circuit court's construction; of the decision in Newhall v. Sanger they said: "It was admitted by clear implication that if the lands had been thus disembarrassed at date of the grant, or their withdrawal from sale, the elder patent would have been valid." See, also, the case of United States v. Central Pacific R. R. (11 Fed. Rep., 449) to the same effect. It is apparent, then, not only that these four last-mentioned cases do not answer the question in the affirmative, but that they answer it in the negative.

What the court actually ruled in Newhall v. Sanger, in reference to the question as to the date at which the grant took effect, is evident from their construction of that decision in the case of Huff v. Doyle (93 U. S., 588). Therein they held that land selected by the State of California, under the school-land grant, while within the out boundaries of a private claim, but notified to the Land Department after segregation by survey, passed to the State under the grant; and they said: "There is in what we have here said no conflict with the principles laid down in Newhall r. Sanger, (92 U. S., 761). In that case the claim under the Mexican grant called Moquelamos was still in litigation when the road of the company was located, and when the lands were withdrawn from public sale. These lands were not then public lands within the meaning of the grant under which the corporation claimed." From this it is clear that that decision is to be regarded as holding that the grant took

effect upon lands which were public at date of the location and withdrawal.

Whenever the Pacific Railroad act has been before the supreme court, and this question has arisen, they have fixed the date of definite location as that which determined whether there were reservations or ap propriations excepting lands from the grant. In Railway Co. v. Railway Co. (97 U. S., 491) they say: "As to the intent of Congress in the grant to the plaintiff, there can be no reasonable doubt. It was to aid in the construction of the road by a gift of lands along its route, without reservation of right except such as were specifically mentioned. The grant was made in the nature of a float, and the reservations excluded only specific tracts to which certain interests had attached before the grant became definite." In Wood v. Railroad Co. (104 U. S., 329) the court said: "The line of the defendant's road was definitely located in June, 1865, and so much of it as has not been previously sold, reserved, or otherwise disposed of, or to which a pre-emption or homestead claim had not attached, was thus appropriated to the satis faction of the grant." In Railway Co. v. Dunmeyer (113 U. S., 629) they said: "In the third section, or granting clause, there are excepted from the grant all lands which at the time the definite location is fixed had been sold, reserved, or otherwise disposed of, and to which a pre-emp tion or homestead claim had attached. When the line was fixed, then the criterion was established by which the lands to which the road had a right were to be determined. . . This filing of

the map of definite location furnished the means of determining what lands had previously to that moment been sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached. In regard to all such sections, they were not granted. The express and unequivocal language of the statute is that the odd sections not in this condition are granted.”

I think that the court could hardly use language more specific than the foregoing, in ruling that the exceptions and reservations from the grant are such as are found to exist at the date of definite location. And that this is the necessary conclusion from the act is evident from its language, which, in my judgment, was intended to grant the alternate sections which were public lands when the line of the road was definitely fixed, and not then sold, reserved, or otherwise disposed of, and to which a pre-emption or homestead claim may not then have attached. The grant of a certain number of odd sections per mile, to be designated by a subsequent location of the road, vested in the company a present interest in the quantity of land specified (Rutherford v. Greene, (2 Wheat., 196); Fremont v. United States, (17 How., 559); Hornsby v. United States, (10 Wall., 244); and as to particular tracts it was a float, and vested no title in them, until date of the definite location of the road, Railroad Co. v. Fremont County, (9 Wall., 89); Leavenworth, Lawrence and Galveston R. R. Co. v. United States, (92 U. S., 741); Railway Co.