and so offset several miles to the west and then continued north. It is questionable whether any of Darling's markers can now be found.
The dispute comes down to this: the lands sought to be leased lie north of the San Juan River and are either just within the Navajo Reservation or else they are public lands bordering on part of the eastern boundary. If the lands are within the reservation, there is no question but that plaintiff's application was properly denied since lands within an Indian reservation are not subject to the leasing provisions of 30 U.S.C.A. § 226. But if the lands lie outside the Navajo Reservation, they are public lands and thus the defendant would be required to issue leases to the plaintiff since he was the first qualified applicant.
Plaintiff's contention is that the treaty line as surveyed and projected by Darling is the official one and that the lands sought to be leased are to the east of this line. Defendant argues that its official records, which include Darling's survey as well as other surveys based on Darling's, put the lands within the reservation.
The Court is of the opinion that the plaintiff should have an opportunity to show that the treaty line as laid by Darling puts the lands sought to be leased outside the reservation. As has been noted, the defendant is required to grant plaintiff's applications if the land is public land; this mandatory nature of the statute would become a dead letter in the circumstances of this case if the Court were to hold unreviewable the defendant's decision that the land is not public land. If the surveyors after Darling relied upon Darling's markers and these markers had been moved away from the place where Darling placed them, it would appear that those later surveys are in error. While Darling's errors, if any, may be too late to question, later surveys, seeking to reestablish Darling's original line, may be examined to see if they were successful. Galt v. Willingham, 5 Cir., 1926, 11 F.2d 757; and see Beard v. United States, 9 Cir., 1930, 41 F.2d 711, certiorari denied, 1930, 282 U.S. 886, 51 S. Ct. 90, 75 L. Ed. 781.
The principal point urged by the defendant is that the Court no jurisdiction to change or direct an existing public survey. But the issue is not whether a survey should be changed. The issue is 'where the lines run by such survey lie on the ground, and whether any particular tract is on one side or the other of that line, (and these) are questions of fact which are always open to inquiry in the courts.' Russell v. Maxwell Land-Grant Co., 1895, 158 U.S. 253, 259, 15 S. Ct. 827, 830, 39 L. Ed. 971. Since these questions are here in dispute, the defendant's motion for summary judgment must be denied.