Colorado Co. v. Commissioners , 95 U.S. 259 ( 1877 )

Mr. Justice Miller

delivered the opinion of the court.

This is a writ of error to the Supreme Court of the Territory of Colorado, to bring up a judgment holding a large body of real estate owned by plaintiffs liable to taxation under the laws of that Territory.

The'ground on which the exemption from taxation is asserted is that the United States retains such an interest in the land that it cannot be taxed under the authority of that Territory; and we are of opinion that the claim is well founded.

In the year 1843, Governor Armijo, of New Mexico, made a grant of land to Gervacio Nolan, bounded by monuments and natural objects, containing about five hundred thousand acres.

Upon a report made to Congress after the United States acquired the country in which this land was situated, that body was of opinion that the grant was good only to the extent of Governor Armijo’s power under the laws of Mexico, namely, eleven square leagues ; and it' passéd the act of. July 1,1870,16 Stat: 646, confirming the grant to that extent.

But as there was no particular designation of these eleven leagues by which to determine their precise location, and as many persons had settled on lands within the boundary of the original grant, Congress declared in that act that the eleven leagues should be adjusted in a compact form, as near as possible within said boundary, and according to the lines of the public surveys. That the claims of all actual settlers falling within the eleven leagues so selected should be allowed, and that for the deficiency thus made in the eleven leagues the grantees might select other lands within the bounds- of the original grant.

It was made the duty of the Commissioner of the General Land-Office to have all the necessary surveys to carry these provisions into effect made at the expense of the government? in the first instance; “but,” it is added, “ before the confirmation provided for by this act shall become legally effective, the heirs of said Gervacio Nolan, or their legal representatives, shall pay the cost of such surveys as inure to their benefit respectively.”

And, by the next section, it is provided that, when all this is done, the surveyor-general shall furnish approved plats to the claimants, which shall be their evidence of title. The plats had not been made nor the expenses paid when this tax was assessed.

We are of opinion that the clause above quoted suspends the vesting of title in the claimants,- or of any perfect equitable right to the title, until the expenses' of the surveys are paid; and that this was done intentionally, to secure that payment. If not paid after a reasonable time subsequent to the perfecting of the surveys and plats, there remains in Congress the power to enforce that payment by a sale of the lands, a resumption of the grant, or any other appropriate mode.

A sale of the land under territorial authority, held by this court to be a sale on a valid tax, might very seriously embarrass the assertion of the rights of the government in the premises. If the tax had been levied on the equitable claim of these holders undér Nolan, whatever that is, the case might be different. But this case shows that it is the land which is taxed, and the sale would convey the ‘title, or nothing.

We are of opinion that Railway Company v. Prescott, 16 Wall. 603, and Railway Company v. McShane et al., 22 id. 444, govern this cáse, and that the learned judge who delivered the opinion in the Supreme Court of the Territory, in holding otherwise, overlooked the express provision in the act of Congress,. supra! that the confirmation was not to be effective until these expenses should be paid.

We agree with what he has said, that the title when per; fected relates back to-and is founded on the grant by Mexico ; but since it was imperfect, and no particular land passed under the grant until selections were made under that act, Congress had a right to annex to the confirmation the condition above recited.

Judgment reversed, with directions to the Supreme Court of the State of Colorado, to whose jurisdiction the case is .now . remitted, to affirm the judgment of the District Court for the county of Pueblo.