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Concurring Opinion

United States Supreme Court

68 U.S. 710

United States  v.  Estudillo

AN act of Congress of June 14th, 1860, [1] authorizes the District Courts of California, on the application of any party interested, to make an order requiring the survey of any private land claims to be returned into court. The order is to be granted on the application of 'any party' whom the court 'shall deem to have such an interest in the survey and location . . . as to make it just and proper that he should be allowed to take testimony, and to intervene for his interest therein.' If the objection to the survey and location is made on the part of the United States, the order to return the survey into court is to be on the motion of the district attorney, founded on sufficient affidavits. 'And if the application for such order is made by other parties claiming to be interested in, or that their rights are affected by such survey and location, the court, or the judge, in vacation, shall proc ed summarily, on affidavits or otherwise, to inquire into the fact of such interest, and shall, in its discretion, determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to the survey, and shall grant or refuse the order.' But the act provides also, 'that all the parties claiming interest, &c., derived from the United States, shall not be permitted to intervene separately; but the rights and interests of said parties shall be represented by the District Attorney of the United States, intervening in the name of the United States; aided by counsel acting for said parties jointly, if they think proper to employ such counsel.' The act also provides that before proceeding to determine the validity of any objection to the location made by the surveyor-general, notice by newspaper publication shall be given to all parties in interest, that objection has been made, and admonishing them to intervene for the protection of their interest.

The present case-another case (United States v. Nunez), being just like it, and depending upon it-was one of these surveys and locations which had been certified into the District Court for the Northern District of California. The record-a confused sort of document-showed that on the 3d of October, 1860, 'the United States Attorney, E. W. Sloan, and J. B. Williams appeared for the United States,' other counsel for the claiment, Estudillo, and R. Simson for a certain Castro, 'and on motion, it was ordered that he be allowed five days to make showing of his right to intervene herein, and no other party appearing, whereupon it is ordered that the default of all parties not appearing as aforesaid be and the same is hereby entered.' Subsequently, to wit, October 31st, 1860, 'come the United States by their attorney, and except to the official survey.' Subsequently to this 'the petition of Thomas W. Mulford, by his attorneys, E. W. Sloan and J. B. Williams,' set forth that he had an interest in the land claimed, and prayed the court to open the default entered on the preceding 3d, which motion the court, on the 20th of February, 1861, 'denied.' The case being here by appeal, as the United States, appellant, and J. J. Estudillo, appellee, Mr. Bates, A. G., in behalf of the United States, and Mr. Laitham for J. B. Estudillo, appellee, signed an agreement at the last vacation that the appeal should be dismissed; and the case was dismissed by the clerk accordingly; this agreement and dismissal purporting to be made under the 29th rule of this court, which provides that when the appellant and appellee in any appeal may, in vacation, by their respective attorneys, who are entered as such upon the record, sign and file with the clerk an agreement in writing, directing the case to be dismissed, it shall be the duty of the clerk to enter the case dismissed.

Mr. J. B. Williams, of California, he being the same Mr. 'J. B. Williams' already mentioned as appearing in the District Court there, now came into court (Mr. Carlisle being of counsel), and presenting himself as attorney of 'Thomas W. Mulford and others,' moved the court 'to vacate the stipulation, made under the 29th rule of this court, dismissing the appeal of the United States herein (which stipulation,' the motion ran, 'was made without their consent, or the consent of their attorney, or the consent of the District Attorney of the United States for the Northern District of California, and was made to their great prejudice and injury as settlers upon the public land of the United States); and that no mandate may issue upon said stipulation, but that the cause may stand to be heard in its order or otherwise as this court may direct; and that the attorney for Mulford and others be allowed to enter his appearance in this court, and be heard in their behalf, in the manner provided by the third section of said act of June 14, 18 0.'

Mr. J. B. Williams and Mr. Carlisle, in support of the motion: The act of June 14th, 1860, subjects the work of the surveyor-general to the revision of the District Courts, and enables all contestants to file objections, and have the survey examined and corrected if found to be erroneous. By obliging the surveyor-general to give notice, by publication, whenever he has made a survey of any private land claim, and by requiring all parties in interest to appear and intervene, a survey when finally approved is not only conclusive between the United States and the claimant, but is conclusive as to third parties, and the patentee can rely upon his legal title against all the world.

It is clear, from the provisions of the act, that Congress did not intend to allow each settler the privilege to intervene in his own name, with a separate right of appeal; its intention was to give them those rights jointly, and the use of the name of the United States. And if they can be heard jointly by their own counsel in the court below, why not in this court on appeal? Where does the Attorney-General of the United States find his authority for dismissing an appeal taken by the district attorney in behalf of the settlers? The 29th rule of this court applies only to the appellant and appellee by their attorneys. The attorney-general is not the attorney of those claiming under the laws of the United States. He is the attorney of the United States-not of the settlers. The appeal was taken in the name of the United States, but it was taken in behalf of Mulford and others, appearing jointly, and represented by their counsel. The attorney-general might well refuse to appear for the settlers, but he can have no right to dismiss their appeal when they stand ready to prosecute it by their counsel.

Mulford and other settlers on the lands under the laws of the United States, claim that if the confirmed tract be properly surveyed and located, they will be gainers. The District Court decided against them. They ask to be heard here by their counsel. If the decision of the District Court had been in their favor, and the claimant had appealed, they would have been compelled to defend themselves as appellees. The attorney-general would not have appeared in their behalf, for his action in dismissing the appeal shows that he would have considered a decision against the survey as unjust. They do not ask the attorney-general now to appear in their behalf, but to let them appear and be heard by their own counsel, leaving him to express the views of the United States, as proprietors of vacant public land, if he thinks proper.

The right of the attorney-general to dismiss appeals in general, where the United States is the appellant, is not questioned. Where the suit is strictly one between the United States and the claimant, in which neither the alienees of the claimant, nor those claiming under the United States, nor adjoining proprietors, can intervene, the right and duty of the attorney-general to desist from the prosecution of an appeal which only works ruin to the claimant under a genuine and valid title, is clear. But the location and survey of a confirmed claim almost always involves the interests of parties with whom the government has no concern. Here they are made to intervene. Does any one doubt if this case stays dismissed, and Mulford were hereafter to bring ejectment, that the record of this case would be used against him?

The right of special counsel-counsel acting for the individual claimants, though appearing to act for the United States-has never been questioned below; where the case is managed almost wholly by them, and where the question whether appeal shall or shall not be taken is left to their view of what their interests may suggest. There should be no different rule here, after the parties are brought, at an immense expense, a distance of six thousand miles.

Messrs. Bates, A. G., Black, and Johnson, contra.

Mr. Justice FIELD delivered the opinion of the court.


^1  10 Stat. at Large, 33.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).