David Josiah Brewer

“ The single question is whether these lands were, between the dates of the two surveys, sub judice, and therefore not passing under the grant to the railroad company. The map of definite location was filed and approved in 1874, and at that time, which was between the dates of the two surveys, the grant took effect. The description of the lands in the Mexican grant and in the decree of confirmation was not in the language of the United States land legislation, by section, township, and range, nor was it such that, without a survey, the exact boundaries could be determined. ”

“ It did not suggest that there had been no final order of confirmation, nor has it at any time raised any question of the right to that survey, and the Land Department ordered the second only upon a doubt of the accuracy of the first. It does not lie within the mouth of a third party to say that the government had a right to appeal, could have insisted on that right, and could have objected to the first survey on the ground of a failure to obtain a final order of confirmation. ”

“ Even between individuals, if one brings a suit in a Federal court to quiet his title to a tract of land, and obtains a decree in accordance with his bill, and on appeal this court sets aside the decree and orders the suit to be dismissed for lack of proper allegations in respect to divers citizenship,-while it may be that the proceedings are ineffectual to determine the title, yet, can it be said that no suit was pending, no claim was made? ”