4. Hon. Caleb B. Smith, Secretary of the Interior, after examination and consideration of the case, ordered a patent to be issued to Mr. McGarrahan.

5. Mr. Usher, the successor in office of Mr. Smith, similarly decided.

6. Mr. Lincoln, after inquiry, decided the grant to be genuine, and that a patent should be issued to Mr. McGarrahan.

From the time when the district court pronounced its decree of confirmation (June 5, 1857) and the President's action on the case (in the fall of 1863), it will be observed, over six years had elapsed, and, in consequence of the lapse of time, an appeal could not be had according to law, unless something should appear to avoid the limitation. In December, 1863, a paper, purporting to be a transcript of proceedings as they appeared on the records of the district court, was prepared in the AttorneyGeneral's office in Washington, D. C., forwarded to the district attorney in California, certified by him out of his district, without comparison with the record and merely from memory, and from which transcript were omitted material parts of the record, and returned to Washington.

Upon the transcript thus made up the case was again brought before the Supreme Court, which being discovered by the claimant, a motion was made to strike off the appeal, which was refused, although it, as it seems to the committee, was out of time, and the transcript had been made up without reference to the actual records of the district court.

Notwithstanding the Supreme Court refused to strike off the appeal taken in the manner indicated, a new transcript was obtained, 1865, from the clerk of the district court, and filed at December term, 1865, eight years and a half after the decree of the district court confirming the title was first pronounced, and more than three years after the period had elapsed within which the law allowed an appeal to be taken in the case, unless some exception takes it out of the limitation. Upon this appeal the Supreme Court, in March, 1866, decided the case against the claimant, and thus matters now stand.

The committee have bestowed a great deal of time and labor upon this case in order to arrive at its real facts and merits. The claimant and the parties resisting his claim have been heard patiently and at great length.

In presenting the conclusion at which the committee have arrived they do not wish to be understood as undertaking to review and reverse the action of the Supreme Court relative to the case. Under and by virtue of the right of petition the claimant has presented his case to Congress, and the House of Representatives directed this committee to inquire into the grounds of his complaint. This has been done. Many facts have been presented to the committee which were not placed before the court. Additional evidence has been submitted and circumstances disclosed which have induced your committee to conclude that the relief prayed for by Mr. McGarrahan ought to be extended to him; and this may very readily be done. The title to the land claimed, and which he asks that he may be allowed to purchase, is now vested in the Government of the United States, and it is merely a question whether he shall be permitted to secure that which, in the judgment of your committee, he acquired title to by virtue of the Mexican grant aforesaid, or it shall fall into the hands of a corporation known as the New Idria Mining Company, which has been resisting his claim for years and paying the expenses of the efforts of said company out of the proceeds of the mines, the title to which rests in the United States.

It is clear that McGarrahan purchased the property in good faith, and for a valuable consideration, when it was regarded as of but little value. His interests have been attacked and his title resisted nominally by the United States, but really by the New Idria Mining Company. The name of the United States, their officers and money, have been used to resist his claim, and all to the end that this property, valable as it now undoubtedly is, may pass into the hands of parties who are wholly unknown to the records of the proceedings had in the courts of the United States respecting the title to the land in question through all its years of transit from the board of land commissioners to and through the Supreme Court of the United States. The company aforesaid placed before the committee a memorial, in which the case is stated as follows:

"The real parties who contested the grant were your memorialists, for against them only were the efforts of the owners of the 'Panoche Grande rancho' directed. For the New Idria mines, and for the fruits of the labor of those who have developed them, the owners of the 'Panoche Grande' are now seeking Congressional interference in their behalf. It may well be doubted whether the 'Panoche Grande' would ever have been heard of in the district court of the United States or in Congress but for the hope of robbing your memorialists of the fruits of their years of labor and vast expenditures of money."

This extract shows that the United States have no interest as between these parties beyond that of preserving its faith as pledged in the treaty made between this Government and that of Mexico. And as to the allegation of robbery, etc., made by said company, it may be remarked that one of its stockhold ers, of large interest, testified

before the committee that after paying all of the expenses of said company, including every outlay, a balance would be left in its treasury on account stated.

The precedents are numerous where the Congress has afforded redress in cases of an analogous character. The following are referred to:

I. The Soscol act, 12 U. S. Stats., p. 808.

II. The Bolsa de Jomales act, 13 U. S. Stats., p. 136.
III. Ex-Mission San José act, 13 U. S. Stats., p. 534.
IV. Laguna de Santos Calle act, 13 U. S. Stats., p. 372.

V. Baron de Bastrop act, 9 U. S. Stats., p. 597.

In addition to which we have the act of June 21, 1860, and the act of March 1, 1861. In view of all the facts developed in the case, and believing that justice and equity demand that the relief prayed for by the claimant be extended to him, the committee recommend the passage of the bill herewith reported.

[Report No. 5, Fortieth Congress, first session.]

IN THE HOUSE OF REPRESENTATIVES.

MARCH 18, 1867.-Read twice and referred to the Committee on the Judiciary.

MARCH 26, 1867.-Reported from the said committee without amendment, ordered to be printed, and recommitted to the said committee.

Mr. JAMES T. WILSON, on leave, introduced the following bill:

A BILL for the relief of William McGarrahan.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the tract of land known as the Panoche Grande rancho, in the State of California, granted by Governor Manuel Micheltorena to Vicente P. Gomez, in the year eighteen hundred and forty-four, and by said Gomez conveyed to William McGarrahan on the twenty-second day of December, eighteen hundred and fifty-seven, surveyed by the United States surveyor-general for the State of California, and approved by him on the eleventh day of September, in the year eighteen hundred and sixty-two, and which said survey is now on file in the General Land Office, be, and the same is, in all respects, hereby fully confirmed to said William McGarrahan upon this condition, however, that the said McGarrahan shall, within twelve months after the passage of this act, pay into the Treasury of the United States the sum of one dollar and twenty-five cents per acre for the lands embraced within the said survey.

SEC. 2. And be it further enacted, That upon the payment of the said sum of money to the Treasurer of the United States by said McGarrahan the said Treasurer shall give a certificate therefor, and upon the presentation thereof to the Commissioner of the General-Land Office a patent shall be issued to said William McGarrahan for said lands.

The bill reported by that committee was passed by the House of Representatives on the 15th day of May, 1868, after debate. (See Congressional Globe, vol. 97, p. 2479.) It will be observed that the bill as it passed the House confirmed the grant to William McGarrahan as surveyed by the United States surveyor-general for the State of California.

The bill when it reached the Senate was referred to the Committee on Private Land Claims. The committee reported adversely to the bill, and on the 25th day of July, 1868, the last evening of the session, the bill was called up and indefinitely postponed. At the next session, to wit, on the 20th day of January, 1869, Mr. Mcrton called up the bill for reference, which motion prevailed by a vote of 27 yeas to 18 nays, after a discussion which consumed a portion of several days, during which the circumstances under which the bill had been indefinitely postponed were fully brought to the attention of the Senate. The bill was recommitted to the Committee on Private Land Claims. It was reported back to the Senate on the 24th day of February, 1869, two of the committee being favorable, two adverse, and one refusing to take any part in the decision. The bill was not further considered during that Congress. The existence of what is claimed to be a record of a patent in the General Land Office to McCarrahan was brought to his attention about the 6th day of July, 1870, at which time his claim was pending before the Committee on the Judiciary of the House of Representatives of the Forty-first Congress. He notified the committee of the discovery, and the committee on the 6th day of July, 1870, through its chairman, Hon. John A. Bingham, called upon the Department of the Interior for the volume of the records containing the same. The volume was produced and the record inspected

by the committee. On the 14th day of July, 1870, an authenticated copy of the record was called for by the chairman of the committee. The copy was not furnished until the 26th day of July, 1870, the record in the mean time, to wit, on the 25th day of July, 1870, having, it is claimed, been mutilated.

A majority of the Committee on the Judiciary reported adversely to the claim, but the chairman of the committee, Hon. John A. Bingham, and Hon. Charles A. Eldridge, a member of the committee, reported a joint resolution providing "that the patent should be transcribed into the records as it stood, without any mutilation or erasure," and authorizing and requiring the President to do in the premises whatever was just and equitable, without regard to any action or proceeding had subsequent to the 14th day of February, 1863, the date of the patent. This joint resolution was passed by the House on the 20th day of February, 1871. It was sent to the Senate, but not considered.

The House of Representatives of the Forty-third Congress passed a resolution requesting the Commissioner of the General Land Office to institute proceedings against the New Idria Company, but the Commissioner refused to bring the suit, and reported his refusal to the House (see Ex. Doc. 180, Forty-third Congress, second session).

The "sundry civil bill" for the year ending June 30, 1876, contained a clause authorizing the Secretary of the Interior to cause an examination to be made for the purpose of ascertaining whether any person, firm, or corporation was occupying any larger portion of said tract of land than was authorized by the laws relating to mining lands, and to make report thereof to Congress (see Ex. Doc. 11, Forty-fourth Congress, first session).

A majority of the Committee on the Public Lands of the House of Representatives of the Forty-fifth Congress reported a bill referring the whole case to the courts for a rehearing without reference to any decisions of the courts previously rendered, but the bill was not acted upon by the House.

A majority of the Committee on Private Land Claims of the House of Representatives of the Forty-sixth Congress reported adversely to a similar bill reported by the Committee on the Public Lands of the Forty-fifth Congress, but suggested that the decisions of the Supreme Court, adverse to the validity of this claim, are erroneous, and McGarrahan's title was originally valid; that "his only remedy" was by "direct act of Congress confirming his title to so much of said land as had not been legally disposed of by the Government, and the payment to him in money or other land of an amount equal in value to so much of the same as the Government had parted title with to innocent purchasers" (see House Report No. 29, third session Forty-sixth Congress). A bill was thereupon introduced in the House in accordance with this suggestion of the committee providing for the confirmation of the grant and the payment to McGarrahan of an amount in money equal to the value of so much of said grant as had been disposed of. The committee, on the 17th day of February, 1881, reported the bill favorably, with an amendment providing that compensation should be made in other land instead of money for so much of said land as the Government had parted title with; but this bill was never considered by the House (see House Report No. 273, Forty-sixth Congress, third session).

In the Forty-seventh Congress a similar bill was reported favorably by Mr. Muldrow, from the Committee on Private Land Claims of the House of Representatives, but it was never considered by the House.

In the Forty-eighth Congress a similar bill was considered by the Judiciary Committee of the House of Representatives and reported adversely, several members of the committee submitting views in favor of the passage of the bill, but no action was taken by the House.

Your committee has given this matter a great deal of consideration. The claim when first presented to Congress was carefully considered by the law committee of the House, and, as has been stated, that committee reported a bill confirming the title to the land in controversy to McGarrahan, and the House passed the bill.

The reasons which led the committee to the conclusions which it reached are stated in the report with great clearness and force. The House of Representatives of the Forty first Congress passed the joint resolution before referred to, which virtually gave effect to the patent, notwithstanding the adverse decision of the Supreme Court, after a protracted debate. Your committee, in view of the action taken at different times by the two houses of Congress and their committees, and also in view of the decisions of the Departments and the different decisions of the courts, as above recited, have thought it best to refer the question of the validity of the grant again to the courts, to be acted on without regard to any former decision. It has likewise referred to the courts the question of indemnity to McGarrahan, in case it is decided that the grant is valid. The bill provides that all evidence taken before the land commissioners, or before a court of the circuit or district court of the United States in California, or before the committees of the two houses of Congress. and before

persons authorized by law to administer oaths, shall be competent testimony on the trial.

It appears that in January, 1881, and subsequently the United States parted with the title to certain portions of the land embracing the New Idria quicksilver mine to the New Idria Mining Company. If there was a grant of this land to Gomez, protected by the treaty of Guadalupe Hidalgo, and the courts so find under the provis ions of the bill reported by your committee, then the question of the liability of the Government, in law or equity, to indemnify said McGarrahan for any portion of the lands disposed of by it is submitted to the court.

Your committee add hereto a letter from the Assistant Commissioner of the General Land Office with an abstract of entries made within the limits of said grant; also a letter from the Acting Commissioner of the General Land Office of January 25, 1888, concerning said entries; also a letter from Mr. McGarrahan and his counsel, the Hon. Eppa Hunton, all of which are made a part of this report, and attached as Exhibits A, B, C, and D.

Your committee, in order that there may be a final determination of this case in accordance with justice and right, recommend the passage of Senate bill 2599.

EXHIBIT A.

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE.
Washington, D. C., May 5, 1988.

SIR: In response to your inquiry of this date I have the honor to transmit herewith an abstract of entries made within the claimed limits of the private grant known as the Panoche Grande, showing the names of the entrymen and the nature and area of the entries.

Very respectfully,

Hon. H. M. TELler,

United States Senate.

T. J. ANDERSON, Assistant Commissioner

Home., lots 1 and 2.

24

17

11

88.18

Domingo Ortez.

May 27, 1884

6099