Statement by Mr. Chief Justice Fuller:
This was a petition filed February 28, 1893, by Ainsa, as administrator, against the United States and one Whitney, for confirmation of the Agua Prieta grant, so called, which he represented he owned by virtue of 'a grant title,' dated December 28, 1836, made by the Mexican Republic under article 11 of decree No. 70, of August 4, 1824, and a law of the states of Sonora and Sinaloa, No. 30, of May 20, 1825, and other decrees embodied in sections 3, 4, 5, 6, and 7 of chapter 9 of the organic law of the treasury, No. 26, of July 2, 1834; and that regular and lawful proceedings were had under those laws, by which the Mexican government, December 28, 1836, sold and conveyed the land to Juan, Rafael, and Ignacio Elias Gonzales in consideration of $142.50 and other valuable considerations. The proceedings were set out at length in the petition.
The United States answered, denying the ownership and possession of the petitioner, and alleging that the grant by the state of Sonora was void; that the grant was located within the Republic of Mexico; that it was confirmed in 1882 to Camou brothers by the Mexican government, and lay south of the boundary line; that the demasias of the grant was also confirmed to Camou brothers; and that a large area remained between the north boundary of the grant and of the demasias and the boundary line, which had since been purchased from Mexico by Camou brothers February 14, 1899, on which day the cause came on for trial, petitioner filed an amended and supplemental petition, averring 'that prior to the treaty known as the Gadsden treaty no resurvey of said grant had ever been applied for or ordered by anyone, and that neither the grantees nor their successors in interest had, prior to said treaty, any knowledge or notice that within the said monuments there was an excess of land over the area stated in said title papers, and petitioner avers that the grantees under said grant were, under the laws of Mexico and the state of Sonora existing at the date of said treaty, and for a long time prior thereto had been, holders in good faith of any such excess or surplus, if any such there is, and entitled to occupy and retain the same as their own, even after such overplus is shown, without other obligation than to pay for the excess according to the quality of the land and the price that governed when it was surveyed and appraised; and petitioner further avers that if this honorable court should decide that said sale, as recited in said title papers, did not, as petitioner avers it did, convey to the grantees therein all of the said tract of land to the monuments described in said title papers without further payment therefor, he is ready and willing and now offers to pay to the United States of America any amount that may be found to be due from him for such overplus, and also the costs for ascertaining the same, as soon as the amount of the same and the sum due therefor is ascertained.'
Petitioner tendered the sum of $600 in gold in payment of the overplus and $200 in gold for costs, offered to pay whatever might be adjudged due, and prayed 'that upon said payment this honorable court decree that petitioner is entitled to and is the owner of all of said tract of land, as originally surveyed, including said overplus or surplus, and that by said decree he be secured in the possession and ownership of the whole of said tract,' etc.
The area delineated on petitioner's maps, as included in the grant claimed, was 163,797.48 acres. The court of private land claims rejected the claim, and dismissed the petition.
The documents covered three tracts of land called, respectively, Agua Prieta, Naidenibacachi, and Santa Barbara. And it appeared that on July 21, 1831, Juan, Rafael, and Ignacio Elias Gonzales petitioned the treasurer general of Sonora, stating that they had cattle and sheep whose numbers they could not feed on the sitios belonging to them, for which reason the stock wandered to the four points of the compass, more particularly toward the waters of the Santa Barbara, Naidenibacachi, Agua Prieta, and Coaguyona, by which they suffered incalculable damage.