The case is fully stated by the court. Messrs. S. F. Leib and A. Chester, for plaintiff in error. Mr. Geo. A.Nourse, for defendant in error. the 3d Judicial District of California. Judg-| valuable consideration have purchased land of ment having been given against him, and af- Mexican grantees or assigns, which grants have firmed upon appeal by the Supreme Court of subsequently been rejected, or where the lands the State he sued out this writ of error. so purchased have been excluded from the final survey of any Mexican grant, and have used, improved and continued in the actual possession of the same according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proofs of the facts under regulations to be provided by the Commissioner of the General Land-Office.' 14 Stat. at L., 220, sec. 7. Mr. Justice Field delivered the opinion of the court: The defendant has a patent of the United States for certain land in the County of Santa Clara, in the State of California. The plaintiff claims that he has an equitable right to the land by virtue of his settlement thereon, and subsequent proceedings under the preemption_laws; and, therefore, seeks to charge the defendant as trustee of the title for his benefit, and to compel its transfer to him. * In the present case, it appears that prior to February, 1862, Estrada, the original grantee of the Mexican Government, sold to one Lyons his right to a portion of the land within the boundaries mentioned in his grant, embracing the premises in controversy; that previously, in Oc premises and erected a house thereon, claiming that he made the settlement under the preemption laws of the United States; that, in February, 1862, he was evicted from them by the sheriff of the county under a judgment in ejectment recovered by Lyons; and that thereupon he removed his house and improvements to adjacent land. After this eviction, the defendant purchased from Lyons his right under the grant to the premises, and has ever since been in their actual possession and use. The grant had been previously confirmed, but for a less quantity than that contained within the boundaries mentioned; and upon the final survey, which was approved in June, 1865, after the defendant's purchase, these premises were excluded. The It appears from the record that the premises are within the boundaries of a grant made by the former Government of Mexico to one Estober, 1856, the plaintiff had settled upon these trada. The grants of that government in California were sometimes of tracts with defined boundaries, and sometimes of places by name where the boundaries were known and could be readily identified; but more frequently they were of a specified quantity of land within boundaries embracing a larger amount, to be measured off and segregated by magistrates of the vicinage. A grant of the latter class was usually in form of the entire tract within the boundaries mentioned, with a condition limiting its extent to the quantity specified, the surplus after the measurement being reserved for the use of the nation. The grantee could not measure off the quantity thus specified so as to bind the government. This could be done only by its officers, pursuant to regulations estab-public surveys were subsequently extended over lished for that purpose. Until the segregation was thus made, no third person could interfere with the grantee's possession, and attempt to limit it to any particular place within the boundaries designated. Soon after the acquisition of California, Congress provided by law for an examination of the various grants of land made by the former government, the confirmation of such as were found to be valid and entitled to recognition, the survey and measurement of the tracts or quantities granted, and the issue of patents to the confirmees. And in order that these proceedings might not be defeated, and that the rights of the grantees in the meantime should not be impaired or embarrassed by the settlement of others, upon pretense that the grants were invalid or that there was a surplus within their boundaries over the quantity granted, which could be appropriated, the lands claimed under these grants were excepted from the operation of the preemption laws, when they were extended over the State. In the investigations thus authorized, many grants supposed to be valid were rejected; and in numerous instances land purchased from the grantees and improved was excluded by the surveys from the tracts confirmed. To meet the hardships thus arising, and to enable purchasers in good faith and for value to hold the tracts improved by them, Congress, in an Act passed on the 23d of July, 1866, to quiet the title to lands in California, provided as follows: "That where persons in good faith and for a the land, and in July, 1866, the plaintiff filed a declaratory statement in the proper Land-Office, claiming to preempt the premises together with other land, alleging his settlement thereon in October, 1856; and in September following made proof of his claim before the Register and Receiver, and was allowed to enter the land. He then paid the purchase money and obtained a certificate of payment. In the meantime, the Act of July 23, 1866, was passed, and under it the defendant claimed the right to purchase the premises. The Commissioner of the General Land-Office thereupon directed the Register and Receiver at San Francisco to investigate the entry of the plaintiff, and to take such testimony as might be offered by him and the defendant concerning their respective claims, and to report the same to him, together with their decision. Both parties appeared before these officers and supported their respective claims. The decision of the officers was in favor of the plaintiff; the defendant appealed to the commissioner, by whom the decision was reversed, and the land awarded to him. On further appeal to the Secretary of the Interior the decision of the commissioner was affirmed; and, upon payment of the purchase money, a patent was issued to the defendant. The decision of the Commissioner and of the Secretary was clearly correct. The plaintiff had acquired by his settlement, in 1856, no such interest in the premises as could control the disposition of them by the United States, should it The contention of the plaintiff, if we understand it, is that the proviso in the 8th section of the Act of 1866, changed the doctrine stated, and gave him a right of preemption to land excluded by the survey from the tract confirmed, although it was at the time in the occupation of the defendant. The proviso is, that nothing in the Act "Shall be construed so as in any manner to interfere with the right of bona fide preemption claimants;" and it is argued that some operation must have been intended to be given it, and that it can have none against a purchase by the claimant under the grant title, unless a preemption right could be acquired to the land whilst in his possession. Conceding this to be correct, we do not perceive that the conclusion follows for which the plaintiff contends. If the proviso can have no operation against a purchase by a claimant under the grant title, it is for the obvious reason that the conditions upon which the claimant can make a purchase are incompatible with those upon which a preemption right can arise. The inference is that the proviso must be applied to other land which the Act mentions. The object of the Act was to withdraw land continuously possessed and im be ultimately determined that they were not cov-bought the land in good faith, and for a valuered by the grant. The land within the bound-able consideration, from the assignee of the Mexaries of the grant was not open to settlement ican grantee, before the survey of the grant; and under the preemption laws; and his occupation that it has since been in his actual possession from 1856 to his eviction in 1862 was that of a and use, according to the lines of his original trespasser, and did not originate any rights purchase. And besides, the use, occupation and which the Government was bound to respect. improvement of the land required by that Act, The land was not then "public land," in the being matters for the determination of the offisense of those laws; and even if it had been pub- cers of the Land Department, it must be prelic land, to which no private claim was made, sumed from their decision that they were suffiit would not have been subject to settlement ciently established. under them until it had been surveyed. The Act of Congress of March 3, 1853, allowing a settlement on unsurveyed lands in California, was limited in its operation to one year. 10 Stat. at L., 246, proviso to sec. 6. By the Act of March 1, 1854, this privilege was extended for two years from that date, when it expired. 10 Stat. at L., 268. No other statute was passed opening unsurveyed lands in California to preemption settlement until May 30, 1862. 12 Stat. at L., 409. The occupation, therefore, of the plaintiff, in October, 1856, was a mere intrusion upon the claim of another, without any license of the Government; and after he was evicted by legal process in February, 1862, the premises were in the possession of the defendant and, therefore, not open to settlement by him. What ever right of preemption the plaintiff acquired by his settlement to land outside of the boundaries of the Mexican grant, originated after May 30, 1862; but as to land within those boundaries, no right could be initiated until the land was excluded from the tract confirmed by the approved survey in June, 1865. In neither case could the right of preemption extend to land in the occupation of the defendant at those dates. To create a right of preemption there must be set-proved by a purchaser under a Mexican grant, tlement, inhabitation and improvement by the preemptor, conditions which cannot be met when the land is in the occupation of another. Settlement, inhabitation and improvement of one piece of land can confer no rights to another adjacent to it, which, at the commencement of the settlement, is in the possession and use of others, though upon a subsequent survey by the Government, it prove to be part of the same sectional subdivision. Under the preemption laws, as held in Atherton v. Fowler [ante, 732], the right to make a settlement is to be exercised on unsettled land; the right to make improvements is to be exercised on unimproved land; and the right to erect a dwelling-house is to be exercised on vacant land; none of these things can be done on land when it is occupied and used by others. There was, therefore, no valid adverse right or title, except that of the United States, to the premises in controversy when they were excluded by the approved survey, from the tract confirmed; nor had the plaintiff the right of a preemption claimant to them. No just ground, consequently, existed for refusing to the defendant the privilege of purchasing them under the Act of 1866. It is found by the court that he 1132 from the general operation of the preemption laws, and to give to him, to the exclusion of all other claimants, the right to obtain the title. That it was competent for Congress to deal with the land as it chose, does not admit of question. No vested rights in the land could be acquired by anyone until it was open to settlement; nor afterwards unless the preemptor made his entry and obtained a patent certificate before the passage of the Act. Frisbie v. Whitney, 9 Wall., 187 [76 U. S., XIX., 688]; Yosemite Valley Case, 15 Wall., 77 [82 U. S., XXI., 82]. The term bona fide," as applied to the preemption claimant, does not change the qualifi cations of such claimant, nor the conditions upon which, under the general law, a settlement with a view to preemption is permitted. It was intended to designate one who had settled upon land subject to preemption, with the intention to acquire its title, and had complied or was proceeding to comply, in good faith, with the requirements of the law to perfect his right to it. The plaintiff does not come within this class. Judgment affirmed. Cited-104 U. S., 423. 97 U.S. END OF VOL. 97. GENERAL INDEX TO THE FOUR VOLUMES CONTAINED IN THIS BOOK. 94, 95, 96, 97. ABANDONED AND CAPTURED State between real and personal property as assets. 1. At law, the pendency of a former action be- Mutual Life Ins. Co. v. Brune's Assignee, 737 Idem, 737 Idem, 222 SEE APPEAL AND ERROR, 22. ADVERSE POSSESSION. 222 1. Adverse possession in the defendant for Hogan v. Kurtz, 317 2. The question whether the possession of the de- A foreigner domiciled in the rebellious States, APPEAL AND ERROR. 409 JURISDICTION, passim. STATE LAWS AND DECISIONS, 3, 7. 9. 1. This court may refuse to hear a criminal case 32 2. Order of circuit court dismissing or remand- TORS. 1. The Missouri Statute of 1868 does not author- Union Mutual Life Ins. Co. v. Lewis. 1114 U. S. v. Clark, 222 4. No discrimination is made by the law of that 17. The granting of a rehearing or of a tempo- Buffington v. Harvey, 381 Transportation Line v. Hope, 477 20. Where the pleading was appropriate in form Milner v. Meek, 444 22. Appeals, in admiralty, to the Circuit Court The Wanata, sufficient to constitute a cause of action, it may be 615 Saye v. Railroad Co., 27. A decree confirming a sale, if it is final, may The City of Hartford v. Rideout, 930 30. This court will not reverse a decree in chan- 31. The objection that there was neither a de- APPEAL AND ERROR, PRACTICE SEE APPEAL AND ERROR, passim. 1. Objection not made in court below, is too late Wheeler v. Sedgwick, Selma R. R. Co. v. La. Nat. Bank, 32 Dayton v. Lash, 33 Clark v. Hancock, 146 United States v. Young, 153 7. The proceedings for new trial cannot be brought Idem, 153 8. Where notice of motion to dismiss an appeal 237 9. Parties who do not appeal cannot be heard ex- Davy v. Good, 10. Bill of exceptions cannot be taken on trial of Johnson v. Harmon, 14. A proceeding which took place after the judg-| 34. A paper in the record entitled a "case and ex- Idem, 368 15. There is but one mode of bringing upon the Phoenix Ins. Co. v. Lanier, 383 Idem, 383 17. This court, may upon such terms as it may Pearson v. Yewdall, 436 Idem, 958 35. When a cause is reached in its order upon the Hurley v. Jones, 1008 36. The rules of this court requiring causes to be 1008 37. An appeal will not be entertained by this court 38. This court will, upon such an appeal, if the U. S. v. R. R. Co., 436 SEE APPEAL AND ERROR, PRACTICE ON, 35. Union Pacific Railway Co. v. Stewart, 431 641 659 SEE PAYMENT, 1. 1044 AND CAPTURED PROPERTY 6. An order drawn by one having a claim against 7. Where cotton was captured and sold, and the Erwin v. U. S., 8. The Act of Congress of Feb. 26, 1853 (10 Stat. 170), 30. Where by order the court permitted the clerk |