purchasers, or their successors or assigns, to comply within 20 days with the order of the court with regard to paying in the balance of the purchase price. The decree of November 12, 1897, requiring the purchaser to comply with his bid, is amended so as to insert in lieu of the 13th day of December, 1897, the 1st day of July, 1898, as the time within which the purchaser shall comply with his bid and pay in the balance of the purchase price, and, as amended, the said decree is in all respects affirmed; and the decree of November 12, 1897, denying the purchaser's right to the earnings of the railroad property since the confirmation of the sale, is also affirmed. APIS et al. v. UNITED STATES (District Court. S. D. California. February 21, 1898.) 1. GRANT OF LANDS UNDER JUDICIAL INVESTIGATION-POWER OF CONGRESS. The permission accorded the legal representatives, successors, or assigns of José and Pablo Apis, by Act Jan. 28, 1879, to litigate their claim and title to "La Jolla Rancho" in the United States district court of California, was a gratuity on the part of the United States, and revocable at any time before final decree in such proceedings. 8. TITLE TO LANDS IN MEXICAN GRANT BURDEN OF Proof. SPECIAL ACT ADVERSE CLAIMS Act Jan. 28, 1879, permitting the legal representatives, successors, or assigns of José and Pablo Apis to litigate their claim to "La Jolla Rancho" in California, provides, inter alia, that no lands shall be confirmed to said claimants to which there are valid adverse claims under any laws of the United States; that, before filing their claims, such claimants shall execute releases to persons in possession of any portion thereof under valid claim; and that the court, before rendering a decree of confirmation, shall ascertain that said releases have been duly executed. Held, that when such claimants fail to affirmatively show that no part of the land claimed by them was possessed by persons having valid claims thereto January 28, 1879, or, if so held, that claimants had, before bringing their suit, executed valid releases to such persons, their claim must be rejected. Byron Waters and Max Loewenthal, for plaintiffs. Frank P. Flint, U. S. Atty., and James R. Finlayson, Asst. U. S. Atty. WELLBORN, District Judge. This action was instituted by plaintiffs, as heirs at law of José and Pablo Apis, against the United States, under a special act of congress approved January 28, 1879, as follows: "An act for the adjudication of title to lands claimed by José and Pablo Apis, in the state of California. "Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the legal representatives, suc cessors, or assignees of José and Pablo Apis, or either of them, be, and they are hereby, permitted to file their claim and title to a certain tract of land in California known as 'La Iolla Rancho,' in and before the United States district court of California; and that said court shall have the same jurisdiction in all things, to be exercised originally to hear and determine upon the said claim and title, to confirm or reject the same, as the several district courts had, under the act of congress of March third, eighteen hundred and fiftyone, and acts amendatory thereunto. And the supreme court of the United States shall have jurisdiction to hear and determine said cause, upon appeal, as decided in said acts: provided, that no lands shall be confirmed to said claimants by said decree to which there are valid claims existing under the pre-emption, homestead or other laws of the United States at the date of the passage of this act; nor shall any decree of confirmation affect any valid adverse right of any other person or persons, or give to the confirmees, or any of them, any claim upon the United States for compensation for any land such confirmees may lose by reason of pre-emption or homestead claims or adverse rights as aforesaid; and that no decree shall be rendered for more than two square leagues: provided, further, that said claimants before filing their claim and title, shall execute releases to any persons who may be in possession of any portion of said lands under valid claims under the preemption, homestead or other laws of the United States at the date of the passage of this act, to the portions of said lands so held respectively, and, before rendering a decree in confirmation the said court shall ascertain that said releases have been duly executed." 20 Stat. 593. The petition was filed July 22, 1884, and the case transferred from the Northern to the Southern district of California, February 24, 1896. Plaintiffs' claim rests upon a Mexican grant, made November 7, 1845, by Pio Pico, governor of California. The genuineness and due execution of the grant are satisfactorily established. The grant on its face shows, among other things, that Indians were established on, and occupying, some of the lands at the date of the grant, and provides that the grant is made without prejudice to such Indians. Plaintiffs have not shown, nor undertaken to show, that Indians are not now in the occupancy of some of the lands; nor have they shown, nor undertaken to show, what particular lands Indians do occupy. The evidence, however, does show affirmatively that one, at least, of the Indians who were upon said lands at the date of the grant to plaintiffs, were occupying them as late as two or three years ago; and the map introduced by plaintiffs also shows an Indian village on said lands. That Indians were in possession of some of these lands in 1845 appears, as already stated, on the face of the expediente itself. In his report upon the petition of the claimants, Arguello, the prefect, states that the land is "occupied with some small summer crops and a few fruit trees that they have there in their style some natives, for which reason, if the petitioners will engage themselves not to molest them, there is no obstacle against granting their petition." The concession of Gov. Pico declares "that the grantees shall not molest the Indians that will have previously established their resi dence there, and occupied some small tracts of land." And the formal grant declares: "But they shall not in any manner molest the Indians who are at present established in it, and occupy some lands that they can go on cultivating and possessing notwithstanding this grant." One of plaintiffs' witnesses, H. G. Stephens, testified that some of the sections claimed by plaintiffs, and which the witness specified, were included within an Indian reservation, created by an executive order, December 27, 1875. That order, so far as material here, was as follows: "Executive Mansion, December 27th, 1875. "It is hereby ordered that the following described lands, in the county of San Diego, California, viz. [San Bernardino Base and Meridian], including Rincon, Gapich, and La Jova Potrero: "T. 10 S., R. 1 E. "Sections 16, 23, 25, 26, 30, 31, 32, 33, 34, 35, 36, and fractional sections 17, 18, 19, 20, 21, 22, 27, 28, and 29. * -Be, and the same are hereby, withdrawn from sale, and set apart as reservations for the permanent use and occupancy of the Mission Indians, in Lower California. U. S. Grant." Although said order was not introduced in evidence, the court takes judicial notice of it. Jenkins v. Collard, 145 U. S. 546, 12 Sup. Ct. 868; Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80; Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513; Code Civ. Proc. Cal. § 1875, subd. 3. Of the sections reserved by that part of the order above quoted, sections 16 and 23, and parts of sections 17, 21, 22, 25, 26, 27, 34, and 35, are included in the lands claimed by plaintiffs. On January 12, 1891, congress passed an act entitled "An act for the relief of the Mission Indians in the state of California" (26 Stat. 712), which contains, among others, the following provisions: "That immediately after the passage of this act the secretary of the interior shall appoint three disinterested persons as commissioners to arrange a just and satisfactory settlement of the Mission Indians residing in the state of California, upon reservations which shall be secured to them as hereinafter provided. "Sec. 2. That it shall be the duty of said commissioners to select a reservation for each band or village of the Mission Indians residing within said state, which reservation shall include, as far as practicable, the lands and villages which have been in the actual occupation and possession of said Indians, and which shall be sufficient in extent to meet their just requirements, which selection shall be valid when approved by the president and secretary of the interior. *** In cases where the Indians are now in occupation of lands within the limits of confirmed private grants, the commissioners shall determine and define the boundaries of such lands, and shall ascertain whether there are vacant public lands in the vicinity to which they may be removed. "Sec. 3. That the commissioners, upon the completion of their duties, shall report the result to the secretary of the interior, who, if no valid objection exists, shall cause a patent to issue for each of the reservations selected by the commission and approved by him in favor of each band or village of Indians occupying any such reservation, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus patented, subject to the provisions of section four of this act, for the period of twenty-five years, in trust, for the sole use and benefit of the band or village to which it is issued, and that at the expiration of said period the United States will convey the same or the remaining portion not previously patented in severalty by patent to said band or village, discharged of said trust, and free of all charge or incumbrance whatsoever." On December 29, 1891, by executive order, and pursuant to the aforesaid act of congress of January 12, 1891, all the sections embraced in the executive order of December 27, 1875, except section 16, were reserved for Mission Indians. These sections, as already stated, are parts of the land claimed by plaintiffs. On the 13th day of September, 1892, the following patent was issued: "The United States of America. "To All to Whom These Presents shall Come-Greeting: "Whereas, it is provided by the act of congress entitled 'An act for the rellef of the Mission Indians in the state of California,' approved January twelfth, Anno Domini one thousand eight hundred and ninety-one (26 Stat. 712), that 'the secretary of the interior shall appoint three disinterested persons as commissioners to arrange a just and satisfactory settlement of the Mission Indians residing in the state of California, upon reservations which shall be secured to them. * * "Sec. 2. That it shall be the duty of said commissioners to select a reservation for each band or village of the Mission Indians residing within said state, which reservation shall include, as far as practicable, the lands and villages which have been in the actual occupation and possession of said Indians, and which shall be sufficient in extent to meet their just requirements, which selection shall be valid when approved by the president and secretary of the interior. * "Sec. 3. That the commissioners, upon the completion of their duties, shall report the result to the secretary of the interior, who, if no valid objection exists, shall cause a patent to issue for each of the reservations selected by the commission and approved by him in favor of each band or village of Indians occupying any such reservation, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus patented, subject to the provisions of section four of this act, for the period of twenty-five years, in trust, for the sole use and benefit of the band or village to which it is issued, and that at the expiration of said period the United States will convey the same or the remaining portion not previously patented in severalty by patent to said band or village, discharged of said trust, and free of all charges or incumbrance whatsoever.' "And whereas, it appears by a copy of a letter dated August 30, 1892, from the acting commissioner of Indian affairs, to the secretary of the interior on file in the general land office, that a selection has been made by the commissioners appointed and acting under said act of congress of January 12, 1891, for the La Piche and La Jolla bands or villages of Mission Indians in California, and such other Mission Indians as are now, or may hereafter become, legal residents thereof, covering fractional sections seventeen, nineteen, twen ty, twenty-one, twenty-two, twenty-seven, twenty-eight, and twenty-nine, and sections twenty-three, twenty-five, twenty-six, thirty, thirty-one, thirty-two, thirty-three, thirty-four, and thirty-five, in township ten south, of range one east, of the San Bernardino Meridian, in the state of California, said tracts being (including fractional section eighteen) designated upon the official plat of survey of township ten south, range one east, San Bernardino Meridian, approved March 25, 1885, by W. H. Brown, United States surveyor general for California, as 'Lot No. 39 Potrero Indian Reservation,' and containing an estimated area of (excluding said fractional section eighteen) eight thousand three hundred and twenty-nine acres and twelve-hundredths of an acre: "Now, know ye, that the United States of America, in consideration of the premises and in accordance with the provisions of the third section of the said act of congress approved January 12, 1891, hereby declares that it does and will hold the said tracts of land selected as aforesaid (subject to all the restrictions and conditions contained in the said act of congress of January 12, 1891) for the period of twenty-five years, in trust for the sole use and benefit of the said La Piche and La Jolla bands or villages of Mission Indians in California, and such other Mission Indians as are now or may hereafter become legal residents thereof, according to the laws of California; and at the expiration of said period the United States will convey the same or the remaining portion not patented to individuals by patent to said La Piche and La Jolla bands or villages of Mission Indians in California, and such other Mission Indians as are now or may hereafter become legal residents thereof, as aforesaid, in fee discharged of said trust, and free of all charge or incumbrance whatsoever: provided, that when patents are issued under the fifth section of said act of January 12, 1891, in favor of individual Indians, for lands covered by this patent, they will override (to the extent of the land covered thereby) this patent, and will separate the individual allotment from the lands held in common; and there is reserved from the lands hereby held in trust for said La Piche and La Jolla bands or villages of Mission Indians in California, and such other Mission Indians as are now or may hereafter become legal residents thereof, a right of way thereon for ditches or canals constructed by the authority of the United States. "In testimony whereof, I, Benjamin Harrison, president of the United States of America, have caused these letters to be made patent, and the seal of the general land office to be hereunto affixed. . "Given under my hand, at the city of Washington, this thirteenth day of September, in the year of our Lord one thousand eight hundred and ninetytwo, and of the Independence of the United States the one hundred and seventeenth. "By the President. Benjamin Harrison. "[Seal U. S. General Land Office.] By E. Macfarland, Asst. Secretary." Recorded in the general land office, by D. P. Roberts, recorder thereof, in Vol. 20, pp. 262 to 265, inclusive. This document, like the executive order of December 27, 1875, is a matter of which the court takes judicial notice. The lands described in said document are embraced in the executive orders before mentioned. Besides the brief filed by the United States district attorney on be half of the government, Messrs. Shirley C. Ward and Frank D. Lewis, as amici curiæ, have also submitted a brief in the case. Among the grounds of opposition to plaintiffs' claim urged in these briefs are the following: First, that the government, by the act of congress of January 12, 1891, and the patent issued pursuant thereto, granting to the Mission Indians a large portion of the lands claimed by plaintiffs, withdrew the lands so granted from the operation of the act of January 28, 1879, which authorized the institution of this action by plaintiffs; second, that plaintiffs have not only failed to show affirmatively that at the time of the passage of the act last aforesaid, January 28, 1879, there were no adverse valid claims to any of the lands now in controversy, but, on the contrary, they have shown that Indians were at said date in possession of portions of said lands, with valid claims thereto, under the laws of the United States, and that plaintiffs did not "before filing their claim and title," which was the institution of this action, execute releases to said Indians for the portions of said lands so held by them; third, that plaintiffs' claim is barred by various statutes of limitation; fourth, that, since the institution of this action, plaintiffs have been guilty of such laches as precludes them from a recovery. If the act of January 12, 1891, and patent issued pursuant thereto, were valid, they, of course, withdrew the lands described in the patent from the operation of the act of January 28, 1879. Plaintiffs, however, assail the validity of the act of 1891, on the ground that congress had no power to make any disposition of said lands, contrary to the provisions of the act of 1879, during the pendency of proceedings authorized by the last-named act; citing Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228; Newhall v. Sanger, 92 U. S. 761; and U. S. v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. 1177. These cases do not support the contention to which they are invoked. In Doolan v. Carr, supra, there was no denial by the court of power in congress to dispose of land embraced within a Mexican claim, under judicial consideration; but the court simply held that such land was not "public land," within |