Supreme Court of United States.
*529 Messrs. Stinson and Browning, with whom were Messrs. Ewing and Carlisle, for the appellant Stone.
Mr. Coffey, special counsel of the United States, contra.
*535 Mr. Justice GRIER delivered the opinion of the court.
A patent is the highest evidence of title, and is conclusive as against the Government, and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England this was originally done by scire facias, but a bill in chancery is found a more convenient remedy.
Nor is fraud in the patentee the only ground upon which a bill will be sustained. Patents are sometimes issued unadvisedly or by mistake, where the officer has no authority in law to grant them, or where another party has a higher equity and should have received the patent. In such cases courts of law will pronounce them void. The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law, such patent is void for want of authority. But one officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act, and requires the judgment of a court.
It is contended here, by the counsel of the United States, that the land for which a patent was granted to the appellant was reserved from sale for the use of the Government, *536 and, consequently, that the patent is void. And although no fraud is charged in the bill, we have no doubt that such a proceeding in chancery is the proper remedy, and that if the allegations of the bill are supported, that the decree of the court below cancelling the patent should be affirmed.
The grant to the Delaware Indians in 1829 calls for Camp Leavenworth as a boundary; consequently, the camp and its appurtenances were not included in the grant. What lands properly belonged to this military post, and the proper curtilage necessary for the use and enjoyment of it not being fixed with precision in the general description of the land granted, could be ascertained only by a survey on the ground.
The resolution of the Senate of May 29th, 1830, provides that the President should employ a surveyor "to run the lines, and to establish certain and notorious landmarks accurately and permanently, to distinguish the boundaries of the country granted, in the presence of an agent to be designated by the Delaware nation, the surveyor to make report with a map or draft of the said granted country," &c. The Secretary of War, by the authority of the President, referred the execution of this duty to a surveyor (McCoy), instructing him "to be governed in every particular by the treaty and the resolution of the Senate."
No copy of this report, with the map approved by the agent of the Delawares, and with the signature and seal of the President, as provided for in the Senate resolution, is found in the War Office, and it does not appear that search was made in the State Department. There is, however, a copy found in the War Office, directed to the Secretary of War, and filed among its documents.
This survey was made in the presence of the agent of the Delawares. It marked the usual quantity of about three miles square, as appurtenant to the post and necessary for its use and subsistence, making the lines thereof the boundary of the grant to the Delawares, with the concurrence and consent of the agent of the nation. It was made in the year 1830, and since that time both parties have held possession *537 and claimed up to the lines then established by the survey. In the case of private persons, a boundary surveyed by the parties and acquiesced in for more than thirty years, could not be made the subject of dispute by reference to courses and distances called for in the patents under which the parties claimed, or on some newly discovered construction of their title deeds. We see no reason why the same principle should not apply in the present case, notwithstanding the absence or loss of the document required by the resolution of the Senate.
The authority of the President, acting through the Secretary of War and his officers, to have posts and forts established, with a proper quantity of ground appropriated for the use of each reserved from sale, is fully discussed and decided in Wilcox v. Jackson.
In 1854, a survey was made under orders of the Secretary of War, "including the buildings and improvements, and so much land as may be necessary for military purposes, at Fort Leavenworth." This survey adopted the southern boundary as run by McCoy, and commenced at the same point. It did not include all the land reserved by that survey, but the land now claimed is embraced within its limits. This survey was approved by the President, and the land contained in it formally reserved for military purposes. The survey made of the Delaware lands, under the treaty of 1854, adopted the McCoy line.
The Secretary of the Interior, in 1861, transcended his authority when he attempted to overrule the acts of his predecessors, and ordered surveys to be made north of that line to include the land now in question.
We are of opinion, therefore,
1st. That the land claimed by appellant never was within the tract allotted to the Delaware Indians in 1829 and surveyed in 1830.
2d. That it is within the limits of a reservation legally made by the President for military purposes.
Consequently, the patents issued to the appellant were without authority and void.
*538 The question on the construction of the treaty of 1860, as to whether the grants to the chiefs and interpreter were to be located within that portion of these lands which was reserved for their "permanent home," or in that portion which was to be sold for their use, would be also fatal to the claim of appellant. But the decision of the other points in the case make this one only hypothetical, and, as it is a question not likely to ever arise again, we think it unnecessary to vindicate our opinion by arguments.
DECREE AFFIRMED.
