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John M. Binckley to Hughes, Denver, & Peck, 5 December 1867

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December 5, 1867. Messrs. Hughes, Denver, & Peck, Counsellors at Law. Gentlemen: With your letter of the 23d ultimo, the Attorney General received a number of maps, affidavits and papers respecting a tract of land described in the surveys of the public laws as the fractional southwest quarter of Section 6, and fraction 1 in Section 7, in Township 3 South, of Range 5 west, containing 130 44/100 acres, situate in San Mateo County, California. It appears that a Mexican grant, now in favor of Henry R. Rayson, interferes to the extent of said tracts, with an entry made under the preëmption laws of the same tracts, by Dr. N. S. Murphy, and also with other entries similarly made by other parties. The present representations are made on behalf of Murphy. The Mexican grant was, of course, long anterior to the settlement of Murphy, but its final confirmation has been subsequent to Murphy's entry. The facts you indicate are substantially the following: Before the inception of Murphy's claim, and in September, 1853, the Surveyor General directed a survey to be made of this Mexican Grant. According to that survey, the law now in question lay outside of the grant. The Surveyor General, therefore, regularly subdivided it, and rendered it subject to preemption, as public land. Hereupon, Murphy settled himself upon the tracts, and on the 5th April, 1857, entered them under the preemption laws, paying the price therefor, and receiving from the land officers the proper certificate, you do not state whether a patent followed this entry, as it probably would have done long since, unless the entry has been suspended for some defect. But I assume that Murphy has received no patent. Meantime, the validity of the Mexican grant, and the title of Payson thereto, were undergoing the usual judicial inquiry, which terminated, subsequently to the entry of Murphy, in a confirmation, and order for a final survey with the object of fixing the definite boundaries of the grant. It does not appear whether Murphy was a party of record in any part of the proceedings referred to, but it is presumed he was not. The definite survey having been made, was approved by the court on the 19th February, 1864. This survey, unlike the one made in 1853, under the direction of the Surveyor General, included the land sold to Murphy, and other lands which had been located and appropriated as public land. From the decree confirming this survey, no appeal was taken to the Supreme Court. In conformity to this survey, and the adjudication of the court, a patent has issued for the grant, in the name of Henry R. Payson, which patent, of course, includes the lands of Murphy. But you are understood to state that previously to the return to the court of the final survey, a stipulation was entered into between the District Attorney, in the name of the United States, and the counsel of Payson, that the action of the court thereon should be accepted as final, and no appeal taken by either party—against which Murphy and others "protested." Under these circumstances, you ask the Attorney General to "instruct the United States District Attorney for the Northern District of California to institute inquiry with a view to the filing of a bill to set aside as much of the " Payson patent as includes the land in question Had no patent issued to Payson, and if an appeal would lie in other respects, the Attorney General would not hesitate, upon satisfactory evidence, to order such appeal, notwithstanding a stipulation intended to conclude the United States and their quasi privies in estate without their consent. But a patent having been issued by the President of the United States, in favor of Payson, ought the suit, if such be deemed necessary, be instituted by the United States? Without considering this question further at present, the preliminary inquiry arises whether the Attorney Gen'l is the judge of the expediency of invoking a remedy for injury alleged to be operating by force of the action of another Department of the administration?—A record made in the Land Office expressly to the point, & duly referred by the Secretary of the Interior, is the proper basis of consideration here, by the established practice of this office. The papers submitted by you are therefore respectfully returned, the Attorney General declining to take further action except at the instance of the proper Department. Respectfully your obedient servant, John M. Binckley, Assistant Attorney Gen'l. [Paper returned]
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