Statement of the Case.

WINTER v. MONTGOMERY.

ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA.

No. 533. Submitted February 4, 1895. - Decided March 4, 1895.

Eustis v. Bolles, 150 U. S. 361, affirmed and followed.

MOTION to dismiss, coupled with which was a motion to affirm. The grounds for the motion, as stated by the counsel for the defendant in error, were substantially as follows:

The plaintiff in error filed in the chancery court of Montgomery County, Alabama, an original and amended bill against the defendant in error. The defendant made no answer to these bills, but moved their dismissal on the ground that they were "without equity." This motion was sustained, and decrees rendered by the chancery court dismissing the bills. On appeal to the Supreme Court of Alabama the decrees were affirmed by the judgment.

It is alleged by the complainant in substance that the pavement adjacent to certain property in the city of Montgomery, Alabama, held by him as trustee of his wife, Mary E. Winter, had been taken up by him, the entire sidewalk excavated, apartments for business purposes constructed in the excavation so made, and a new pavement laid, and that this was done by permission of the city council of Montgomery (defendant in error) as evidenced by a report of a special committee, dated July, 1870. It is further set forth that after the complainant. had been for many years in the use of the improvements so made, the city authorities removed the pavement and the structure underneath, filled in the excavation, put down a new and different kind of pavement, known as the "Schillinger pavement," and have since excluded the complainant from the use of the space underneath the pavement in connection with the building adjacent, and that great damage has resulted from these acts of the city authorities.

It appears, also, from the original bill that the city authorities committed the alleged wrongs complained of on the

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Syllabus.

ground, as they claimed, that the sidewalk was out of repair and dangerous for passengers, and that it could only be properly repaired in the way they had done; that complainant had several times during a period of more than a year attempted to make the suggested repairs, but that the authorities had prevented his doing so, and had insisted on replacing the old pavement by the Schillinger pavement.

Among the errors assigned on the appeal to the Supreme Court of Alabama from the decrees of the chancery court were the following:

"3. The court erred in not holding that the ordinance of the city council of Montgomery, as set out as Exhibit 'C' to the original bill, impaired the obligation of the contract set out as Exhibit 'B' to the bill.

"4. The court erred in not holding that the acts of the city council, respondent, as set out in said bill, deprived the complainant and Mary E. Winter, the owner of the corpus, of the interest and property described without due process of law.'"

Mr. Edward A. Graham and Mr. L. A. Shaver for the motions.

Mr. H. E. Paine and Mr. J. S. Winter opposing.

THE CHIEF JUSTICE: The writ of error is dismissed on the authority of Eustis v. Bolles, 150 U. S. 361, and cases cited. Dismissed.

ILLINOIS CENTRAL RAILROAD COMPANY
v. BROWN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.

No. 632. Submitted February 4, 1895. - Decided March 4, 1895.

McLish v. Roff, 141 U. S. 661, and Chicago, St. Paul &c. Railway v. Roberts, 141 U. S. 690, affirmed to the point that this Court has no jurisdiction to

Opinion of the Court.

review in error or on appeal, in advance of the final judgment in the cause on the merits, an order of the Circuit Court of the United States remanding the cause to the state court from which it had been removed to the Circuit Court.

MOTION to dismiss.

Mr. Josiah Patterson for the motion.

Mr. H. W. McCorry opposing.

THE CHIEF JUSTICE: The writ of error is dismissed upon the authority of Railway Company v. Roberts, 141 U. S. 690, and McLish v. Roff, 141 U. S. 661. Dismissed.

HAYS v. STEIGER.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 67. Submitted November 9, 1894. - Decided March 4, 1895.

The grant of the Agua Caliente to Lazaro Pina by Governor Alvarado in 1840 was a valid grant, and embraced the tract in controversy in this action.

THE case is stated in the opinion.

Mr. Frederic Hall and Mr. James A. Waymire for plaintiffs in error.

No appearance for defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

This case comes before us on writ of error from the Supreme Court of California. It was an action originally brought by the plaintiff in the Superior Court of one of the counties of that State, claiming an equitable right to 110.80 acres of land which is part of 160 acres of public land for which a preëmp

Opinion of the Court.

tion claim was filed by one John Mann, through whom the plaintiffs in error claim as heirs at law, charging the defendant as trustee of the legal title, and praying that he be compelled to transfer it to them as the true owners thereof.

The defendant demurred to the complaint and had judg ment thereon. The plaintiffs stood upon the sufficiency of their complaint, and appealed from the judgment of the inferior court, which was, however, affirmed.

From the latter judgment the case is brought to this court on a writ of error.

Mann, through whom the plaintiffs in error claim as heirs, was a qualified preëmptor on one hundred and sixty (160) acres of unsurveyed public land in Sonoma County, California, which embraced the 110.80 acres in controversy here. He made improvements upon the land and resided upon it until his death, which took place in July, 1872. He died intestate.

The township in which the one hundred and sixty (160) acres were situated was afterwards surveyed, and an approved plat thereof was filed in the United States land office in San Francisco in August, 1880.

In October following one of the plaintiffs, on behalf of the heirs of Mann, filed with the register and receiver of the land office a declaratory statement claiming the right to preëmpt, for the benefit and use of the heirs, one hundred and sixty (160) acres of land.

In November, 1880, the defendant in error filed in the land office an application claiming, as a homestead, a certain portion of the land which included the 110.80 acres. The defendant had entered upon the land in dispute in 1870, without the consent of Mann or the plaintiffs.

No entry of any kind was made by the defendant prior to 1870 upon the premises. He claimed the right to purchase the land under the provisions of section seven of the act of Congress of July 23, 1866, entitled "An act to quiet land titles in California." The object of that section was to withdraw from the general operation of the preëmption laws lands continuously possessed and improved by a purchaser under a Mexican grant, which was subsequently rejected, or limited

Opinion of the Court.

to a less quantity than that embraced in the boundaries designated, and to give to him, to the exclusion of all other claimants, the right to obtain the title. The land applied for by both parties, to the extent of 110.80 acres, was within the exterior boundary of the Mexican grant known as Agua Caliente, but which was excluded by the final survey of the United States. The defendant was a purchaser of the land thus excluded, for a valuable consideration, from parties who purchased from the original grantee.

The record contains a description of the grant and sets forth the various proceedings for its recognition and confirmation and survey, which we follow in the history of the proceedings as substantially correct.

The grant was made to Lazaro Pina by Alvarado, as governor of California, in October, 1840, and was approved by the departmental assembly in October, 1845. The claim of title to the grant was confirmed by the United States District Court and by this court.

The description of the land in the decree of confirmation is as follows:

"The land of which confirmation is made is situated in the present county of Sonoma, and is of the extent of two leagues and a half in length by a quarter of a league in width, and known by the name of Agua Caliente, and is bounded on the southwest by the arroyo of the Rancho of Petaluma, on the southeast by the town of Sonoma, on the north by the hills and mountains which intervene and separate the rancho of Mr. John Wilson, being the same land which was granted to Lazaro Pina by Governor Alvarado.”

The parties proved their respective claims to enter the land before the register and receiver, who decided in favor of the defendant in error.

An appeal was taken to the Commissioner of the General Land Office from the decision of the register and receiver. That officer reversed their decision and rendered one in favor of the plaintiffs.

A further appeal was taken to the Secretary of the Interior, who reversed the decision of the Commissioner and affirmed