This suit is being prosecuted in pursuance of an act of Congress of date July 27,1917 ( 40 Stat. 247 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 1867ddd]). This act provides that the suit shall be prosecuted in accordance with the laws of the state of California relating to the condemnation of property for public use. The suit is for the determination and appraisement of any rights the defendant may have in North Island, in the harbor of San Diego, Cal., and for the condemnation of such rights. The government took possession of this island, and now . seeks to condemn the defendant’s interest therein, under the above-mentioned act, for use for national defense and in connection therewith as sites for permanent aviation stations for the army and navy and for aviation school purposes.

On August 18, 1824, the sovereign general constituent congress of the United Mexican states issued a decree concerning colonization and settlement of the national lands of said republic. This decree provides:

On November 21, 1828, in pursuance of article 15, the government, through his excellency, issued rules and regulations for the colonization of the territories of the republic. The Mexican government granted the land in controversy to one Pedro Carrillo, a Mexican citizen, on May 15, 1846. This grant was made by Pio Pico, the Governor of California, and recites:

This recitation was made in the grant to comply with article 8 of the rules and regulations of November 21, 1828. It does not appear in the record that the grant was made with the approval of the supreme general executive power, as provided by article 4 of the decree of August 18, 1824. By virtue of the treaty of Guadalupe Hidalgo (9 Stat 922), Congress on March 3, 1851 ( 9 Stat. 631 , e. 41), enacted a law entitled “An act to ascertain and settle the private land claims in the stab', of California.” Pursuant to this act of Congress, Billings and others., assignees of Carrillo, the Mexican grantee, instituted proceedings against the United States before the commissioners created by said act, and subsequently in the District Court of the United Stales, to have the said title confirmed to them. The board of commissioners .rejected the claim of Billings and others, but the District Court confirmed it on the 12th day of January, 1857. The only parties to said suit were Billings and others, as plaintiffs, and the United States, as defendant Plowever, before a patent was issued by the United States for the land, other parties were substituted for Billings and others. The patent issued to the successors of Carrillo makes the following recitation:

*232 Tlie title acquired under this patent passed to the defendant. The. plaintiff claims that the grant to Carrillo created a fee in the grantee, subject to the reservation provided in article 5 of the act of August 18, 1824, above quoted, and claims that the patent was simply a confirmation of such title, and that the right 'reserved to the Mexican government passed to the United States by virtue of the treaty of Guadalupe Hidalgo.

On the contrary, counsel for the defendant contends that the grant to Carrillo passed a fee-simple title, and claims that the first eight articles .of the decree of 1824 referred only to foreign colonization, and not to grants made to citizens of Mexico, and is applicable only to estates, and not to the territories of the republic.

In De Arguello v. U. S., 18 How. 539 , 15 L. Ed. 478 , at the December term, 1855, the Supreme Court, in discussing this question, used the following language:

Necessarily, the District Court, in confirming this grant, was guided by the decision in the Arguello Case. Article 5 of the act of 1824 was, not involved in the Arguello Case, except incidentally; but the reasoning in that case necessarily precludes the idea that article 5 could apply to citizens of Mexico, while all the other articles from 1 to 8, inclusive, apply only to foreigners. It will be seen that the Supreme Court in - dudes article 5 among the eight articles, which it holds apply to foreigners, and not to cilizens. We might well use the language of the Supreme Court, above quoted, making the reference to article 4 read article 5, thus:

It would also seem that the Mexican government could with as much propriety have made a distinction between a Mexican citizen and a foreigner, concerning the right of occupancy as provided in article 5, as to have made the distinction in article 4. It seems to the court that this decision of the Supreme Court of the United States is controlling upon this court.

The court might well stop here, without further comment; but the question of res adjudicata has been carefully investigated, and it is not inappropriate to make the following comment:

Section 15 of the Act of March 3, 1851, provides:

In construing this section, the Supreme Court, in the case of Botiller v. Dominguez, 130 U. S. 238, 248 , 9 Sup. Ct. 525, 527 ( 32 L. Ed. 926 ), says:

In the Botiller Case the court was deciding a controversy between two claimants in an action wherein the United States was not a party, but what the court said in that case is appropriate to a decision in the case at bar. The statute and said decision is to the effect that the patent shall be conclusive on the United States. Certainly, if it is conclusive on anybody, in view of this statute, it ought to be conclusive ©n the United States. A patentee under this statute could not assert with very much confidence, concerning the land he got, that “this is my property,” if the United States could step in at any time and take possession of it forever.

This court is of the opinion that the claim of the plaintiff is not well made for the foregoing reasons.