Joseph McKenna

“ The lands must be vacant. Nor could lands be selected 'which were then known to contain mineral. Congress did not intend to grant any mines or mineral lands, but, with these exceptions, their right of selection was coextensive with the limits of New Mexico. We say 'lands then known to contain mineral,' for it cannot be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. ”

“ The contentions of the parties are very accurately opposed. Appellants contend that 'under a proper construction of the act of June 21, 1860, title to the 'float' cannot pass until there has been an official survey and a final determination by the proper officers that the land selected in 1863 was of the character which the statute permitted the heirs to take,-a matter still sub judice in the Department,' except as to certain conflicting grants. ”

“ To accommodate conflicting claims, and at the instance of the government, the Baca claimants gave up their rights to a definite tract of land, and, as appellees say, expressing the equities of the claimants, whatever its character or condition, and the government therefore would naturally make provision for the location of the substituted land as expeditiously as possible, and without expense to the Baca heirs. ”

“ The foregoing statement and the certificate of Surveyor General Clark having been submitted to this Department, and having undergone a careful examination, the location being approved by him to perfect title under the authority of the act approved June 21, 1860, application for survey having been made. Instructions (copy herewith attached) have been given to Surveyor General Levi Bashford of Arizona, in which territory the lands located now are, to run the lines indicated and forward complete survey and plat, to be placed on file for future reference as required by law. ”

“ Stimson, 223 U.S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340. The suit is one to restrain the appellants from an illegal act under color of their office which will cast a cloud upon the title of appellees. ”