no other use will be made of the land but for cultivation, on condition that if, at any time, they make any other use of it, it shall be considered as abandoned, and the grantees without any right to its possession, and that these have the same right as the rest of the public to pasture their animals in the vicinity thereof." This order is signed by Armijo, who was president of the territorial deputation (and at the same time Governor of the territory), and by Ramon Abreau, its Secretary. While appellants base their title upon this order, the appellees contend that the grant, if supporting appellants' title at all, was the foundation of their claim to only those portions of the grant as were specifically allotted to appellants' grantors, the original grantees, and not as supporting any title to an interest in the undivided lands in the grant. The meaning of the grant can be best interpreted in the light of the proceedings which begot it. The initial step was the petition of Domingo Fernandez, dated April 26, 1822, in which he applied to the then Governor of the territory of New Mexico for the grant of lands for himself, his son, and other persons, according to the boundaries mentioned in his petition; stating that what he asked was limited, and was without injury, as land remained in the four directions for most extensive commons. (We refer to the original Spanish, which seems to be fuller in certain places than the English translation.) The land was not then granted by the Governor, but he referred the petition to the town council to report on April 27, 1822. On June 13, 1822, the town council requested Domingo Fernandez to make a full report, which he did on June 25, 1822. On June 27, 1822, the town council appointed a committee to examine the land and report in regard to the statements set out by Fernandez in his report. On July 8, 1822, the committee reported as Fernandez had represented, and stated that they found no obstacle to granting the land solicited by Fernandez and the others with him to the amount that each one could cultivate without injury to the pastures or watering places. Nothing further was done until June 16, 1827, when Domingo Fernandez petitioned the territorial deputation or the Governor (it is doubtful which), referring to his former petition, and made further statements of fact, and thereby asked that the land be granted to him and 30 others, who accompanied him, and stated that the boundaries were the same as he had given in his former petition. On June 25, 1827, this last petition was referred by the territorial deputation to the ayuntamiento of Santa Fé for report. On July 26th following, the ayuntamiento, by the alcalde, who was the president thereof, made a report recommending the grant, and that the waters and pastures be common. Shortly after the making of the order or grant by Armijo, and in pursuance thereto, on August 21, 1827, José Maria Martinez, first constitutional al

calde at Santa Fé, being also president of the ayuntamiento at Santa Fé, at the request of Domingo Fernandez to place him and those who accompanied him in possession, gave juridical possession of the land included in the grant, in which he recited that its excellency had granted the land known as the "Old Pueblo of San Cristobal" to Domin go Fernandez and 30 men, who accompanied him to the said place, and that they should enjoy the same for themselves, their heirs and successors, with the understanding that, if they should want to sell, they should do so to the persons possessing, and for the current price of land, and that if any one should wish to cause damage by selling to any other person than the grantees in consideration of his being a person of influence, from which might result damage to the poor people possessing it, etc. To this they agreed, and said that they would always guard that circumstance, and that he who should fail in that regard should be declared without any right. The alcalde then, at the request of Fernandez to place in possession himself and his companions, took him by the hand, and conducted said Fernandez (the original grant document is here torn, the words missing probably being "y sus") and his companions, or those who accompanied him, over said tract. He pulled up grass, scattered handfuls of earth, broke off branches from trees, and they, from great joy and satisfaction, uttered expressions, saying, "Long live our actual president, Don Guadalupe Victoria! Long live the Mexican nation!" and they used other ceremonies and acts of possession in evidence that they said they took possession of the tract of land quietly, pacifically, and without any opposition, for themselves, their heirs, and successors. To this the alcalde certifies, and says: "I then showed them the boundaries on the east the Ojo de la Vaca, on the west the front of the middle Creston, on the south the Bajada de los Comanches, and on the north, the brow of the Creston, which are the boundaries inclosing the tract, the said Domingo Fernandez receiving the Cañon de la Cueva to the spring of la Vaca, partitioning for cultivation the rest of the plan and place of the Canada de la Casita, the pasturage remaining free in the other directions up to said boundaries." The alcalde then divided out the cultivable lands, giving to Domingo Fernandez from the Mesita de la Lagunita upwards to the Ojo de la Vaca under the boundaries of the grant, and in continuation he measured from the said Mesita west, and designated 100 varas to each of 25 persons in addition to Fernandez, making in all 26 persons; all of whom he says received quiet and peaceable possession. It will be seen that there are two documents of possession-one which gives the possession of the entire grant, and specifies a certain portion set apart to Domingo Fernandez, and other certain portions set apart to all the other parties. The second act of pos

The

session is the one giving out the specific pieces of land to all the persons, including Fernandez, for cultivation. These tracts designated in both the first and second documents of possession, which seem to have been consummated on the same day, gave out the cultivable lands which Fernandez received for himself and those received by the other parties for themselves, it being specified that the pastures remained free to all the grantees without being divided or separated between them specifically. In the second specification of possession, made by Alcalde Martinez, he says that all the parties agreed to build a house and work on the church, acequias, and tanks. But he does not express any damage which would result, or any penalty which would be imposed, in case of noncompliance; nor did he express that they should do so within any given time, nor that they were required to do so. It is not a condition. only condition placed upon this grant by the granting authority was that of cultivation. The alcalde pretended to make a condition in his acts of possession that if they sold to any one else than the other parties at the current price, it should not be lawful, and they should lose their rights; but, viewing the grant as unaffected by any act of confirmation by Congress, it is clear that the alcalde had no right to impose any condition which was not imposed by the authorities making the grant in the grant itself. If he did have such right, there is furthermore no pretense that these parties ever sold while the country was under the Mexican government, so that the condition never could operate as a forfeiture. Freemont v. U. S., 17 How. 561, 15 L. Ed. 241. While he and the deputation specified, the one that no other use should be made of the land than cultivation, and the other that it should not be sold, and in case it was used for other purposes, or sold contrary thereto, that it should be declared forfeited or abandoned, yet there is no such a condition attached to the failure to work on the church, or to build a house, or work on the acequias or tanks; and it is a rule of law that, where a condition is attached for failure to do one thing, and no condition is attached for failure to do another, the failure to do the thing to which no condition is attached is not to be considered as embraced in the penalty attached to the other, but the expression of the one idea excludes the other.

From the foregoing we can see no justification for the contention of the appellees that the grant as originally made was made solely to Domingo Fernandez. The order of the Governor of August 9, 1827, shows that the grant was made to all the petitioners. The petition therefor shows that it was asked for Fernandez and 30 others, who accompanied him; and the act of juridical possession shows that the alcalde took Fernandez and 25 other of the original petitioners over the grant, all of whom accepted the possession for themselves, their children

and successors, and expressed joy and satisfaction at the same. But that the grant made by the Mexican government was in itself, unaided by the sanction of Congress, a valid grant of all the land within the boundary specified in the act of juridical possession, we need not and do not assert. The courts of justice are concluded by the action of the political department, and, the political department of the government having acted upon this grant, that action must be regarded as a complete adjudication of the law as affecting this grant. The final action of Congress herein is to be found in the act confirming the grant, which is as follows: "That the private land claims in the territory of New Mexico, as recommended for confirmation, by the Surveyor General of that territory, and in his letter to the Commissioner of the General Land Office, of the twelfth of January, eighteen hundred and fifty eight, designated as numbers one, three, four, six, eight, nine, ten, twelve, fourteen, fifteen, sixteen, seventeen, and eighteen, and the claim of E. W. Eaton, not entered on the corrected list of numbers, but standing on the original docket and abstract returns of the Surveyor General as number sixteen, be and they are hereby confirmed." It is contended by appellees that it was not the intention of Congress to confirm by this act the claim of E. W. Eaton "as recommended by the Surveyor General," but as expressing its intention to absolutely confirm the grant to Eaton alone. We think, however, that the grammatical sense of the phrase "as recommended for confirmation" applies to the claim of E. W. Eaton, which is here designated objectively, and that this grant was confirmed in the same manner as those grants designated by numbers in the act were confirmed.

Having determined that the grant was confirmed as recommended, we are guided by the decision of the Supreme Court of the United States in the case of Tameling v. Freehold Co., 93 U. S. 644, 23 L. Ed. 998, involving a grant confirmed by the same act of Congress, as to the effect to be given to the recommendation of the Surveyor General. That court there say: "The Surveyor General, in the exercise of the authority in which he is vested, decides then in the first instance. The final action on each claim reserved to Congress is, of course, conclusive. It is obviously not the duty of this court to sit in judgment upon either the recital of matters of fact by the Surveyor General, or his decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration and action. Congress acted upon the claim as recommended for confirmation by the Surveyor General." Therefore, whether this confirmation was a grant de novo, as appellees contend, or was a recognition of a pre-existing right and title, and related back to the inception of that

right or title, as appellants contend, depends entirely upon the declaration of Congress in the premises. If Congress has expressed its intention within the law itself with certainty, it is not admissible to depart from that intention on any extraneous consideration or theory of construction. Sutherland on Stat. Const. § 236. Without resorting to implication or presumption, therefore, we must give full force and effect to all that Congress has expressly declared. We think it indisputable that Congress, in approving the recommendations of the Surveyor General, has thereby adjudicated that all which he recommended is law so far as this case is concerned. The language of the section of the act of July 22, 1854, § 8 (10 Stat. 309), under which the report of the Surveyor General in this case was made in regard to these claims is as follows: "That it shall be the duty of the Surveyor General, under such instruction as may be given by the Secre tary of the Interior to ascertain, the origin, nature, character and extent of all claims to lands under the laws and usages and customs of Spain and Mexico. ** He

shall make a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same under the laws, usages and customs of the country before its cession to the United States." The Surveyor General found that all the documents acted upon were original and duly authenticated; that the grant was legally made, and the parties placed in possession, and that it was, therefore, deemed a good and valid grant, and confirmed to E. W. Eaton, as the assignee and legal representative of Domingo Fernandez, and to the remaining original grantees who had not forfeited their right to the land by a noncompliance with the conditions of the grant. From one of the papers so duly authenticated we find that "legal, personal, and loyal possession" was given of the entire grant, and that Fernandez and his companions took possession of it quietly and peacefully for themselves, their children and successors, The operative words of this grant are those of a present grant in fee simple, with a condition subsequent annexed, and, in the absence of any expression to the contrary by Congress, they must be held to have been sufficient to accomplish the purpose the parties had in view, and which Congress has declared was accomplished. We conclude, therefore, that the grade of the title denoted by the Surveyor General was of the highest kind, that no further steps were required to complete the grant, and that the grantee put in possession acquired vested rights thereunder. All of which Congress has made res judicata by the confirmatory act. Kennedy v. Hunt, Lessee, 7 How. 586-592, 12 L. Ed. 829; Palmer v.

Low, 98 U., S. 1-19, 25 L. Ed. 60; Tameling v. Freehold Co., supra; U. S. v. Joseph, 94 U. S. 614, 24 L. Ed. 295.

In support of their position the appellees cite Tameling v. Freehold Co., supra. In this case, the Supreme Court of the United States was dealing with a Spanish land grant in New Mexico, recommended for confirmation and confirmed by the same act of Congress which confirmed the grant here involved, and they quote therefrom the following: "I hold, therefore, that the act of Congress operated as a grant de novo for all the land within the boundaries as given in the report of the Surveyor General;" and appellees argue on the theory that under the laws of Mexico the grant was legally a grant to the associates of Domingo Fernandez of the 100-vara strips allotted to them for cultivation, and therefore, if the claim had been presented to the court of private land claims, that court would have been obliged to reject the unallotted portion of the grant, and that the political department of the government alone could have confirmed that portion to anybody, and therefore insist that Congress, in confirming the grant, made a grant de novo. In the Tameling Case, supra, we think the court decided in effect that, although it might be true that a correct interpretation of the laws of Mexico as applied to a Mexican land grant would entitle the claimants thereunder to only a fractional part of the tract confirmed by Congress as such a grant, still Congress, having confirmed the grant so enlarged, did by its confirmatory act pass the title of the United States to such portion of the tract as had not been theretofore granted by Mexico to its grantees as effectually as if it contained in terms a grant de novo. The court did not decide that the United States held the legal title to that portion of the grant in excess of the number of leagues which might have been lawfully granted under the Mexican government; nor did it decide that the interpretation of the Mexican laws by Congress could be revised in any manner. Indeed, it decided the contrary. It anchored its judgment upon the sole proposition that the action of Congress in confirming the grant as recommended by the Surveyor General without limitation as to quantity was an unassailable finality. The grantees here being determined to have vested rights in the entire grant, we conclude that appellees' theory, as herein stated, is inapplicable to this case. They contend further, however, that, in any event, the act of confirmation itself amounts to a new grant, and fixes the rights of the parties in the case, relying again upon the quotation from the Tameling Case, supra. The meaning of this quotation may be best understood by looking further into the case in which it is used, and by considering similar language as applied in other cases by the Supreme Court. That court in the Tamel

ing Case further says: "We have repeatedly held that individual rights of property in the territory acquired by the United States from Mexico were not affected by the change of sovereignty and jurisdiction. They were entitled to protection, whether the party had the full and absolute ownership of the land or merely an equitable interest therein which required some further act of the government to vest in him a perfect title. No jurisdiction over such claims in New Mexico was conferred upon the courts." The decision then recites the authority of the Surveyor General and the binding character of his findings of fact, and then proceeds: "We need only say that he distinctly sets forth that they were put in possession, vesting in them, their children and successors, a title in fee to said land, and that he reached the conclusion that the grant is a good and valid one, and that a legal title vests in Beaubien to the land embraced within the limits contained in the petition. * ** Congress acted upon the claim as recommended for confirmation by the Surveyor General. The confirmation being absolute and unconditional, we must regard it as effectual and operative for the entire tract. The phraseology of the confirmatory act is, in our opinion, explicit and unequivocal. In Ryan v. Carter et al., 93 U. S. 78, 23 L. Ed. 807, we recognized and enforced as the settled doctrine of this court that such an act passes the title of the United States as effectually as if it contained in terms a grant de novo, and that a grant may be made by law as well as a patent pursuant to law." Does this language mean all that it is claimed to mean by the appellees, and more than on its face it purports to declare? A brief examination of the authorities will show that we are not justified in expanding its meaning beyond the literal import. The case of Ryan v. Carter, from which this language is adopted into the Tameling Case, was a case in which the Supreme Court considered the effect of the act of June 13, 1812 (2 Stat. 748, c. 99), which act it held "confirmed proprio vigore the rights, title, and claims to the lands embraced by it, and operated as a grant to all intents and purposes. Repeated decisions of this court have declared that such a statute passes the title of the United States as effectually as if it contained in terms a grant de novo."

Numerous cases decided by the Supreme Court of the United States involving the construction of this act of June 13, 1812, reveal the fact that in every case the confirmatory act has been construed either "to operate as a grant of" or to be a grant of the fee from the United States to the claimant. In Glasgow v. Baker, 125 U. S. 560, 9 Sup. Ct. 154, 32 L. Ed. 513, that court held it to be a grant in præsenti of all the title of the United States. The expressions, "operate as a grant," "be as effectual as a grant," and the

like, are in no case used by the Supreme Court in any different sense than that in which they are used in the cases cited. It is simply a judicial construction to the effect that Congress intends by an act of confirmation, when there is a confirmee or class of confirmees to take thereunder, that the same shall operate to vest in the confirmee any legal title which may be in the United States. A clear statement of the doctrine laid down by the United States Supreme Court in the construction of these acts of confirmation is to be found in the case of Langdeau v. Hanes, 21 Wall. 521, 22 L. Ed. 606. We quote therefrom as follows: "In the legislation of Congress a patent has a double operation. It is a conveyance by the government when the government has any interest to convey. But where it is issued upon the confirmation of a claim of a pre-existing title it is documentary evidence, having the dignity of a record, of the existence of that title, or of such equities representing the claim as justify its recognition and confirmation. The instrument is not the less efficacious as evidence of previously existing right because it also embodies words of release or transfer from the government. The whole error of the plaintiff arises from his theory that the fee to the land in controversy passed to the United States by the cession from Virginia, and that a patent was essential for its transfer to the claimant; whereas, with respect to the possession of the inhabitants and settlers mentioned in the deed of cession, the fee never passed to the United States; and if it had passed, and a mere equitable title had remained in the complainants, the confirmation by the act of 1807 would have operated as a release to them of the interest of the United States. * ** A legislative confirmation of a claim to land is a recognition of the validity of such claim, and operates as effectually as a grant or quitclaim from the government. * * * It was for the confirmation of existing possessions and titles that the deed of cession stipulated, not the transfer of any new title. Virginia recognized the general rule of public law that by the cession of territory from one state to another public property and sovereignty alone pass. Even in cases of conquest, Mr. Chief Justice Marshall observes, in U. S. v. Percheman, 7 Pet. 51, 87, 8 L. Ed. 604, ‘it is unusual for the conqueror to do more than displace the sovereign and assume dominion over the country, and the sense of justice and right which is felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled.' Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. This con

firmation was the fulfillment of the condition stipulated in the deed of cession, so far as the complainants are concerned. It was an authoritative recognition by record of the ancient possession and title of their ancestor, and gaye to them such assurance of the validity of that possession and title as would be always respected by the courts of the country." There can be no misunderstanding of the reasoning of Justice Field in Langdeau v. Hanes, supra; nor the effect to be given the phrase "operate as effectually as a grant or quitclaim from the government," as used by him. Similar language in Ryan v. Carter, supra, is used in precisely the same sense. Nor in the Tameling Case have we seen that it had any other signification. The same construction is put upon similar language used by the Supreme Court in the case of U. S. v. Maxwell Land Grant Company, 121 U. S. 366, 7 Sup. Ct. 1015, 30 L. Ed. 949. Any other construction would be antagonistic to many decisions of the Supreme Court of the United States, as well as contrary to reason, and we find no case in which that court has departed from this long-settled doctrine. As a judicial interpretation of the intention of Congress to recognize and confirm appellants' ancient title, they have cited the case of U. S. v. Joseph, 94 U. S. 614, 24 L. Ed. 295, involving the confirmation of the claim of the Pueblo of Taos, by a similar act of Congress. The Supreme Court there say: "The Pueblo Indians, on the contrary, hold their lands by a right superior to that of the United States. Their title dates back to grants made by the government of Spain, before the Mexican Revolution; a title which was fully recognized by the Mexican government, and protected by it in the treaty by which this country and the allegiance of its inhabitants were transferred to the United States. * ** It is unnecessary to waste words to prove that this was a recognition of the title previously held by those people, and a disclaimer by the government of any right of present or future interference, except such as would be exercised in the case of any individual holding by competent and perfect title in his individual right." In Palmer v. Low, 98 U. S. 1-19, 25 L. Ed. 60, the Supreme Court say, referring to an act of Congress in confirming an alcalde grant: "Clearly, therefore, the act of Congress could not have been intended for the grant of a new right, but simply for the confirmation of the old one." And in Colorado Company v. Commissioners, referring to a grant held by the Supreme Court to have been an imperfect one, the Supreme Court of Colorado said: "Whatever may be said of the title given by the Mexican government, we think the effect of this act of confirmation is to establish the title from the date of the grant by the Mexican government." The Supreme Court of the United States, in affirming the above doctrine, say: "We agree with what he has said [referring to Supreme Court of Colorado] that

the title, when perfected, relates back to and is founded on the grant by Mexico." Colorado Company v. Commissioners, 95 U. S. 266, 24 L. Ed. 495; Tripp v. Spring, 5 Sawy. 215, Fed. Cas. No. 14,180; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039; Slidell v. Grandjean, 111 U. S. 439, 4 Sup. Ct. 475, 28 L. Ed. 321; Langdeau v. Hanes, 21 Wall. 521, 22 L. Ed. 606; Knight v. United Land Ass'n, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974. And this doctrine is again clearly announced by the Supreme Court in the recent case of United States v. De Conway (decided Oct. 30, 1899) 20 Sup. Ct. 13.

We conclude, from an examination of these authorities, that the Supreme Court of the United States considers these acts of confirmation as operating in two ways: First, as a legislative recognition of the existence and validity of the original grants; and, second, as a quitclaim and transfer of any possible interest which our government might have in and to the lands alleged to be within the grants. It is also very clear that the United States Supreme Court have so regarded the effect of an act of confirmation and patent thereunder by Congress in its numerous decisions in those cases in which both parties claimed the premises in controversy under conflicting confirmations. Willot v. Sandford, 19 How. 79, 15 L. Ed. 549; Les Bois v. Bramell, 4 How. 464, 11 L. Ed. 1051; Henshaw v. Bissell, 18 Wall. 255, 21 L. Ed. 835; Miller v. Dale, 92 U. S. 474, 23 L. Ed. 735; Trenier v. Stewart, 101 U. S. 797, 25 L. Ed. 1021. We must decide, therefore, that, when the fee is not vested in the United States, the confirmatory act is the fulfillment of the treaty obligation of the government, and an authoritative recognition by record of the ancient possessions and title of the confirmees, and gives to them such assurance of the validity of that possession and title as would always be respected by the courts of the country.

The fee having passed directly from the Mexican government to the grantee, and Congress having perceived the possibility of forfeiture under the Mexican government of one or of all of the interests except that of Eaton as the assignee and legal representative of Domingo Fernandez, out of an abundance of caution, and in order that there might be no question as to the confirmation extending to others than those who had rights entitled to protection under the treaty, has merely performed its whole duty in the premises in inviolably respecting vested rights thereunder by confirming the grant to those who had not forfeited. The confirmation operated, therefore, as to those interests under the Mexican grant which had not been forfeited at the time of the treaty, as an authoritative recognition of the record and validity of the ancient possession and title, while it seems to have operated as a grant de novo to the confirmee or confirmees of