"Sec. 4. That the forl'going confirmations shall only be construed as quitclaims or relinquishments on the. part of the United States, and shall not affect the adverse rights of any other person or persons whomsoever." That section 11leans simply that congress does not determine, as between themselves, the rights of any adverse claimants to these 22 leagues, if any there be, 01' as to the present status of the title, leaving that matter to be settled by the courts. It does not, in terms or by any fair implication, reserve for further consideration the validity of the claim for the balance the tract, or in any manner limit the force of the decision expressed in the first 'section; so that we have, as an important fact, the decision of the political department of the government against the validity of the title claimed by this defendant. It is doubtless true that the action of the political departmentis not conclusive upon the courts. It is their duty to construe tl'eaties; to determine rights; and if there be any vested rights of property which the political department oithe government refuses to recognize, such refusal will not prevent recognition and enforcement in the courts. At the same time, this action, though not conclusive, is very pe:rsuasivej it stands upon a higher plane than the mere construction by one party of his contract, and of its terms. It is true a treaty is in the nature of a contract between two and subject to certain rules of construction, as contracts between individuals; but the action of the law-making power in determining the construction of a treaty, the extent t() which rights under it are vested, has also some of the attributes oflegislation. It is such governmental action as may not be wholly disregarded by the courts, and, although not absolutely binding, is, as I said, very persuasive. Again, it is a familiar rule that. grants are to. be construed strictly in favor of the government, and against the grantee. I know of no reason why this rule, which is recognized as of universal force in this country, should not be similarly applied in respect to grants from other governments. Applying that rule to this petition and grant, it would seem that no more was intended to be conveyed than the 11 square leagues to each individual, which was the ordinary rule of Mexican grants. It is, of course, known that empresario grants were made of larger tracts, and it is doubtless true that there was a looseness and carelessness in the action of Mexican officials in respect to grants which have led to confirmation by this government in at least two instances of grants of much larger tracts. Tamelingv. Freehold Co., 93 U. S. 644; U.S. v. Land-Grant 00., 121 U. S. 325, 7 Sup. Ct. Rep. 1015. Nevertheless, the general rule and the ordinary limitation was understood to be 11 square leagues to each individual; and, unless there be something in the proceedings which clearly indicate the intent to grant more, that ought to be considered the limit intended. The petitioners in this case evidently did not ask for the entire tract within the out-boundaries named in their petition, and probably did not contemplate an empresario grant. They say: "We have examined the land embraced within the Huerfano, Pisipa, and eucharas rivers, and, finding sufficient fertile landfor cultivation, an abundance of pasture and water, and all that is required for a flourishing
UNITED STATES 'IJ. CLEVELAND & COLO. CATTLE CO.
establishment, and for raising cattle and sheep." This suggests a per. sonal business,-a "flourishing establishment." They speak as if they were wishing the property for their own use; a place where they could raise cattle and sheep,-where they could carryon an individual business. The language does not contemplate the opening up of the land for settlement, the bringing in of colonists, and that filling up of the country with habitants which was the thought und purpose of ernpresario grants. And, further, they pray the governor to grant "to each one of us a tract of land in the above-mentioned locality." This clearly shows that they were not asking for tB.e whole tract; and the fact that they ask for a grant to each one, instead of to the two jointly, discloses an evident purpose to get the 11 square leagues which might be given to each individual. Indeed, without resorting to the rule heretofore mentioned in respect to governmental grants, the fair import' of this petition is that. the extent of the application was for the familiar amount of 11 square leagues to each. It is true, near the close of the petition, they use the word" colony," and say that in the spring they will commence operations, which shall be continued until the colony shall be established. Of course, this word makes favor ofihis an ernpresario grant; and yet its use ought not to be sufficient to overthrow the clear import of the petitioning clauses. So far as the language of the governor is concerned, it throws little light upon the question, being mainly a confirmation of the petition, in the form of a direction to the justice of the peace to give possession. And yet that which he does say makes in the same direction. It is not the bringing of settlers, the establishment of a colony, but the ment of agriculture and the arts, which is the purpose and consideration of the conce8sion. If the matter rested here it would not seem that there could be any reasonable doubt as to the extent of the grant, as to what was applied for, and what was intended by both the petitioners and the government. The troublesome fact is that the justice of the peace, as appears by his certificate, gave juridical possession, not of 11 square leagues to each, but of the entire tract to both; and the act of this officer, it is insisted, is conclusive upon the government as the act of the proper official to designate on the land the boundaries of the tract conveye(L It is doubtless true that this act of juridical possession was very significant in the conveyance oflands under the Mexican law. It may be difficult to define the exact extent of the powers of this officer, but it would seem strange if an officer, of such an inferior grade, had power to enlarge a grant. It was for him to locate the grant; he could indicate its boundaries. Giving juridical possession was like the giving of seizin at common law. It was the manual transfer of possession; and, where the grant was of a fixed amvunt, but indefinite in location, doubtless the ad of juridical possession was conclusive on the government as to the location of the grant. But to hold that when a grant had been made of 22 square leagues, a justice of the peace could, by the mere act of juridical possession, divest the government of the title to a thousand square leagues, is attributing to him powers which I do not think he Several cases have been decided by the supreme court in
which great stress has 'been laid on his action as designating and defining boundaries; buti'until further advised, I shall hold that the power to designate and define.boundaries, and give juridical possession, do not include the power to the extent of a grant. So, from both the action of the political department of the government, and from the conof the prQoeedij)gs of the Mexican government in respect to this grant, I am constrt:'ined to hold .that no title passed to other than the 22 square leagues confirmed and patented. Nothing need be said in respect to the special matters set up in the answer, as to a lease and confiscation proceedings.. Thelle matters may be explained, qualified, or limited by the testimony; or, if not, it may well be that neither of them work an estoppelagainst the government. One other matter requires notice, and that is the argument so forcibly pressed upon me by counsel at the hearing. The defendant and its grantors have been in the possession for a length of time under what, as must be conceded tobea claim and color of title. Under counsel these circT1JPstances, it urged that equity will not interfere until the rights oftlf.eparties have been determined hy proceedings at law. That, ht:'ve been very persuasive against a preliminaryinjunotrue in respect to the final determination of the case? tion.· But is Must the goverIWlent, finding .partiesin poss 'ssionof the public domain, even though under a, cU!.im a,nd color of title, proceed to an action onaw to establish itstjUe, before restraining such parties from improper use of such land? The :go.vernIAent hall not simply the rights of a property owner in respect to these1am1s; it has all the powers of sovereignty. As the legal .title is iIi. government, the presentation ofthat title casts upon the defendantt4e,dutyof establishing its equities. If a legal aotion were. no equitable defensescopld be pleaded in the United States courts, lind..the defendant would be sent to its separate suit in equity. 'Practically, is. any· hardship done, or any rights of the defendant trespassed upoD,)i the government, in the first instance, comes into a court of invitesthe defendant then and there to a full and final deternlip\itioj) .of its rights? : I haVe thus far considered,fuis case without reference to the act of Feb1885. That act den'ounces inclosures of public lands, and, in terms, authorizes suits by injunction and otherwise; but that act does not purport to take awayany jurisdiction from the circuit courts; to limit their powers, sitting ascQurts of chancery. Its probable purpose and mtent was to call the attentioIl;of the officers of the government to the increasing evil of fencing up the public domaiQ., and perhaps, also, to vest jurisdiction in some CO\uts which may not have had jurisdiction over such litigation. r tllink i[ shall say nothing more. I have not discussed all the questions that ,Were suggested by counsel, nor have I enlarged ,,-pon the matters to which I have spoken as fully as I should .if this were the final hearing of the case. I have said what little I have said to indicate why, J think that, upon the final hearing, the government may be entitled, under this bill,to a perpetual injunction. This is as far I ought, qram at.liberty now, to go. Whatever, upon the
CLARK V. WIV,ON.
facts now presented, would havc been my conclusions as to the propriety of a preliminary injunctionjthe motion to dissolve ought not to be sustained, because, under the bill, it may be at the final hearing the government will be entitled to a perpetual injunction. ' The motion to dissolve is overruled.
CLARK V. WILSON.
(Circuit Court. S.
n. Nf/tD York.
CONTEMPT-WHAT CONSTITUTES-ANSWER BEFORE REFEREE.
On a reference, after decree, to a master to ascertain how many articles defendant had made. in answer to such a question, he stated. "NOD!'. Held.· thllot he was not guilty of contempt in making the auswer.
In Equity. Accounting before a master. AlexanderClark sued James G. Wilson, defendant, for infringement of patent. Decree for plaintiff, and reference to anlaSter. A. J. Todd, for complainant. Francis Jiln'beli, for defendant. LACOMBE, J. The decree refers the Case to a master to ascertain, take, and report the number of (infringing) shutters made, used, or sold by the defendant prior to May 2, 1886; and deferidant is thereby directed and required to attend before the master from time to time, as ,required, and to produce before him such books, papers, exhibits, statements, vou'chers, and documents as he may be directed by said master to produce, and to submit to such oral or other examination as the master may direct. The parties being before the master, the latter directed defendant to produce a statement of the number of the infringing articles manufactured or sold by him during the period covered by this accounting as set forth in the decree; the statement to give also the prices at which such infringing articles were sold. The defendant presented a statement as follows: "Nrimber of infringing articles manufactured and sold by me prior to May 2, 1886: None. [Signed] JAMES E. Wn.80N." The master submitsto the court the question whether the defendant is to be adjudged guilty of contempt in making this apparently on the theory that such a statement ig inconsistent with defendant's former testimony, a.nd with the defense he interposed to the suit. Non con8tat, however. that his present statement is untrue, and it would be a strange proceeding forthe court to compel a. varty by a process of contempt to make a false return. The defendant's statement binds nobody. He is before the master, with all his books and papers, and it is 'the master, not the defendant, who is to take and state the account. When books or papers are withheld, or answers to pertinent guestions refused, or the falsity of his statementil is demonstrated, it will be time enough for the master to invoke the aid of the court.