It does not appear that this so-called amended application was ever approved by the surveyor-general, or that any action was taken by that officer looking to such approval. June 11, 1866, he acknowledged receipt of your said office communication of May 21, 1866, and submitted an estimate of the probable cost of the survey, accompanied by the statement that upon being advised of the deposit of such estimated sum of money for the purposes of the survey, he would proceed to have the same executed in accordance with the said instructions of April 9, 1864, and of May 21, 1866. July 2, 1866, the attorney for the Baca heirs was notified of the estimated cost of the survey and required to make deposit of the amount thereof, but the deposit was never made nor was the survey ever executed.

From a diagram or plat prepared in your office apparently for the purpose of showing the proximate position on the face of the earth of the selection or location as made, June 17, 1863, and the relative position of the selection or location under the so-called amended application of April 30, 1866, it appears that the latter lies almost wholly to the east and north of the former, and that but a very small portion of the land embraced by the latter is within the limits of the former.

August 15, 1877, John H. Watts, representing himself to be the son of the aforesaid John S. Watts (then deceased), and as attorney for the heirs of his father, and part owner of the grant, addressed a communication to your office in which he requested that permission be given him to "relocate" said Baca Float No. 3, on the stated ground that the lands embraced by the selection or location previously made by his father were supposed to be mineral, though thought to be vacant and not mineral when the selection was made. This request was denied by your office September 20, 1877, on the ground that the act of June 21, 1860, expressly limited the right of selection thereunder to the period of three years from its date. October 10, 1877, another application was made to "relocate" the grant on the alleged ground that subsequently to the former "location," mineral had been discovered thereon by various persons and companies who were then engaged in hunting for gold, silver, and other precious metals within the boundaries of said claim to the ouster of the owners thereof. This application was also denied for the reasons given in the denial of the former one.

Thus the matter remained, apparently, until February 13, 1885, when John C. Robinson, an alleged owner of the grant, addressed to your office a communication setting forth the selection of June 17, 1863, and the so-called amended selection of April 30, 1866, respectively; stating in substance that, on account of the hostility of the Indians, no survey of the claim had ever been made; that no definite action had been taken by your office in the premises, "nor could the locations selected have been confirmed for the reason that the land was mineral;" and asking that he be authorized to "locate" the grant on land non-mineral within the limits of what was known as the Territory of New Mexico on June 21, 1860.

March 21, 1885, your office considered the application of Robinson and held that the same should be allowed.

The matter subsequently came before the Department, however, and by decision of June 15, 1887, supra, the action of your office was disapproved and it was held that there is no power or authority in the Land Department to authorize a selection or location under the grant after the expiration of the time limited by the statute.

Following this decision numerous protests against both the selection of 1863 and the so called amended selection of 1866 were forwarded to your office by various and sundry persons alleging in substance that about three-fourths of the lands embraced in the selection of 1863 were mineral; that nearly all the lands covered by the amended selection of 1866 were mineral; and that such had been the known character of the lands for over one hundred years. Considerable correspondence was had by your office with the protestants and others relative to the subject matter of said protests, during the years 1887 and 1888, but no definite action looking to the survey of the grant or to a final adjustment of the controversy resulted therefrom.

December 21, 1888, the attorney for said John C. Robinson filed in your office a formal application for the survey of the grant under the existing selection, and offered to make deposit of the necessary funds to cover the cost of such survey. Upon consideration of this application your office, in a communication of March 5, 1889, addressed to the surveyor-general of Arizona, directed that a hearing be had for the purpose of determining the known character of the lands claimed, at the date of the selection of 1863 and at the time of said amendment of 1866, and as an incident to said hearing, but as such only, the surveyor. general was authorized to make preliminary survey of the out boundaries of the claim upon payment of the cost thereof by the grant claimant, as far as deemed necessary or advisable to aid in the determination of the question submitted, but no farther.

An appeal was taken from that action to the Department, resulting in the decision of June 24, 1891, supra, adhered to on review, November 28, 1891, supra, wherein the order for the hearing was approved with the modification that the inquiry should be directed to the known character of the land at the date of the hearing, and not the dates of the selection of 1863 and so-called amendment thereof, as specified in the order of your office. The hearing thus ordered has never been had, and so the matter has stood until the receipt of your office communication of May 6, 1899, first above mentioned.

Such are the facts shown by the record as far as deemed material to the consideration and determination of the pending controversy.

The present applicants express a willingness to deposit to the credit of the surveyor-general of Arizona a sum of money sufficient to pay the cost of an official survey of the grant as soon as notified of the amount required. Your office in the said communication of May 6, 2967-VOL 29-4

1899, recommends that a survey of the exterior lines of the claim, at least, be authorized, and that all questions relating to the character of the lands be left for future determination by the Department and the courts.

It must be apparent to all concerned that the interests of the gov ernment and the grant claimants alike demand that this matter-so long pending before the Land Department-should be speedily and finally adjusted.

There can be no doubt that the heirs of Luis Maria Baca had the right for the period of three years after the act of June 21, 1860, to select in one square body within the Territory of New Mexico as it then existed, as and for the one-fifth part of their grant made by said act, and as No. 3 of the series of selections thereby authorized, vacant lands, not mineral, to the full quantity now claimed in this case.

The questions presented by the record are:

1. Is the selection of June 17, 1863, binding upon the applicants for survey, or are they entitled to claim under the so-called amended selection of April 30, 1866?

2. Is the question as to the character of the land selected-that is, whether vacant and not mineral and therefore subject to the graut, or occupied, or mineral, and for that reason not subject to the grant-to be determined with relation to the date of the selection, or with reference to the date of the approval of the survey of the claim?

3. By whom and in what manner is the character of the land to be ascertained and determined?

I. It will be observed that by express provision of the act of June 21, 1860, the right of selection thereby granted was to continue in force during the period of three years from the passage of the act, "and no longer." The language used is so clear and explicit on this point that there would seem to be scarcely room for construction. The right to select was to continue in force for three years, and no longer. If not exercised within that time the right no longer existed. In other words, if not previously exercised, the right of selection became extinct at the expiration of the time limited, and could not be exercised thereafter. This view is supported by the recent case of Shaw v. Kellogg (170 U. S., 312), and its correctness will hardly be questioned. How do the grant claimants in this case stand with reference to this matter?

The selection of June 17, 1863, was within time and appears to have been in all respects regular. It was approved by the surveyor-general, whose approval, subsequently supported by the certificates of the register and receiver as shown, was accepted by your office and the survey of the claim ordered.

The application of April 30, 1866, filed after the expiration of the three years' limitation, purported in name to be an amendment of the former application or selection, but the courses of the exterior lines of the claim as therein given are totally different from those of

the original selection, and besides, it is expressly stated in the new application that the lands embraced thereby are not the same as those covered by the original selection. These facts taken in connection with the diagram or plat hereinbefore referred to (which is a part of the record in the case) showing the relative positions on the earth's surface of the tracts embraced by the selection of 1863 and the so-called amended selection, indicate very clearly that instead of the application of April 30, 1866, having for its object the amendment of the selection of June 17, 1863, with a view to correcting mistakes in the description of the exterior lines thereof or of giving greater certainty thereto, it was in reality, except as to the very small area common to both, an application to make a new selection, with a situs almost wholly removed from that of the selection of 1863. It is not believed that such a change in the locus of the claim as was thus attempted to be made can be recognized under the pretext or claim that the change was simply by way of amendment of the existing selection.

It is not necessary to deny or even question that the Baca heirs would have had the right, after the expiration of the three years' limitation, or that their assignees would now have the right to make necessary amendments of description for the purpose of correcting ascertained mistakes, if any, so as to cause the record of the claim to conform to its position upon the earth's surface as actually selected within the time prescribed by the statute, if a selection had been made and marked upon the ground. But such is not the case here. The application of April 30, 1866, sets forth that owing to the hostility of the Indians a personal examination of the locality was prevented prior to the selection of June 17, 1863, and that upon such examination subsequently had it was found that a mistake had been made whereby most of the land designed to be included in the selection had not been so included. Manifestly if there had been no personal examination of the locality prior to the selection of 1863, there could have been no location or marking of the claim upon the earth's surface prior to that time, and consequently the selection of 1863 could have no fixed locus other than that indicated by the record of the selection itself. There was therefore no marked boundaries of the claim on the earth's surface, to conform to which it was necessary or proper that an amendment be made of the description contained in the selection of 1863.

It was not simply a "mistake in the initial point" of this selection that was sought to be corrected by the application of 1866, as therein suggested, but a complete change of the selection was thereby asked for, including as well the courses of the exterior lines of the claim, as the "initial point" thereof. Under these circumstances to allow the so-called amended selection to stand would be. in reality, to allow a new selection under the grant after the expiration of the time limited for the exercise of the right of selection, and for this there is no authority found in the statute making the grant or elsewhere. The Depart

ment is therefore of the opinion that the grant claimants are bound by the selection of June 17, 1863, and that they can not be allowed to take under the application of April 30, 1866.

II. In the case of Shaw v. Kellogg, supra, the supreme court had under consideration selection No. 4 of the series authorized by said act of June 21, 1860, and in the discussion of the questions there presented it was said (page 332):

The grant was made in lieu of certain specific lands claimed by the Baca heirs in the vicinity of Las Vegas, and it was the purpose to permit the taking of a similar body of land anywhere within the limits of New Mexico. The grantees, the Baca heirs, were authorized to select this body of land. They were not at liberty to select lands already occupied by others. The lands must be vacant. Nor were they at liberty to select lands which were then known to contain mineral. Congress did not intend to grant any mines or mineral lands, but with these exceptions their right of selection was coextensive with the limits of New Mexico. We say 'lands then known to contain mineral,' for it cannot be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. The selection was to be made within three years. The title was then to pass, and it would be an insult to the good faith of Congress to suppose that it did not intend that the title when it passed should pass absolutely, and not contingently upon subsequent discoveries.

Under the authority of that case it would seem clear that the time with reference to which the character of the land is to be determined is the date of the selection and not the date of approval of the survey of the claim, as formerly held by the Department, and nothing further need be said here on that subject.

III. But by whom and in what manner is the character of the land to be determined? The granting act places the duty of surveying and locating the lands selected upon the surveyor-general of New Mexico. In the Shaw-Kellogg case, supra, this question was also considered by the supreme court, and it was there said (pages 333-334):

How was the character of the land to be determined, and by whom? The surveyor general of New Mexico was directed to make survey and location of the land selected. Upon that particular officer was cast the specific duty of seeing that the lands selected were such as the Baca heirs were entitled to select. It is not strange that he was the one named; for, in the original act of 1854, which made provision for the examination of these various claims, the duty of such examination was cast upon the same officer, and he was there required "to ascertain the origin, nature, character and extent of all claims to lands under the laws, usages and customs of Spain and Mexico; and, for this purpose, may issue notices, summon witnesses, administer oaths and do and perform all other necessary acts in the premises," and it was upon his report that Congress acted. Further, he was the officer who, by virtue of his duties, was most competent to examine and pass upon the question of the character of the lands selected. We do not mean that Congress thereby created an independent tribunal outside of and apart from the general Land Department of the government. On the contrary, the act of 1854 provided that he should act under instructions from the Secretary of the Interior, and so undoubtedly in proceeding to make survey and location as required by section 6 of the act of 1860, he was still subject to the control and direction of the Land Department; but while be was not authorized by this section to act in defiance or independently of the Land Department, he was the particular officer charged with the duty of making survey