The authority given the Land Department over surveys of "public lands" of the United States, and its authority under the preemption law to patent lands "belonging to the United States," did not empower it to make a survey defining the boundary between an upland lot belonging to the United States, and tideland belonging to a State, which would be conclusive against the State or her grantee in a subsequent suit against one claiming the lot under a preemption patent. Knight v. United States Land Assn., 142 U.S. 160, distinguished. P. 16. 5.
custody of the defendant between his removal to the state prison and his execution; and Andrews, J., speaking for the court, said: "It not infrequently happens that the execution of a sentence to imprisonment continues, notwithstanding an appeal. The convict, if he obtains a reversal of the judgment, and is again convicted on a second trial, may be sentenced to a new term of imprisonment, and the court is not bound to regulate the second sentence in view of the fact that the convict has already suffered imprisonment under the first sentence. The resentence in the present case was rendered necessary by reason of the fact that Trezza, by his own act in his own interest, had by his appeal prevented the execution of the death penalty at the time fixed by the first sentence." Trezza also applied to the Circuit Court of the United States for the Southern District of New York for a writ of habeas corpus, which the court refused to grant, and its order was affirmed by this court on appeal. 142 U.S. 160. In McElvaine v. Brush, 142 U.S. 155, McElvaine had been sentenced to death, and the judgment was reversed and a new trial granted.
Nor can we say that isolated confinement on "death row" constitutes cruel and unusual punishment. See, McElvaine v. Brush (1891), 142 U.S. 155; Trezza v. Brush (1891), 142 U.S. 160; Rosenburg v. Carroll (S.D.N.Y. 1951), 99 F. Supp. 630. See also, State v. Scott (1972), 17 Ariz. App. 183, 496 P.2d 609; Adams v. Pate (7th Cir. 1971), 445 F.2d 105.
Madden v. CaldWell Land Co., 16 Idaho 59, 100 P. 358, by citing with approval the following cases adopted the law therein announced declaring such rule and more fully expounded and applied in 29 Ida. at 116, ante: Hamilton v. Cutts, 4 Mass. 349, 3 Am. Dec. 222; Drew v. Towle, 30 N.H. 531, 64 Am. Dec. 309; Merritt v. Morse, 108 Mass. 270; Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360; Rawle on Covenants, p. 289; 2 Sutherland on Damages, sec. 604, p. 2096. The secretary of the interior has original, exclussive jurisdiction to pass upon questions concerning the title to public lands as passing from the United States. Standard Oil Co. of California v. United States, 107 F.2d 402; Knight v. United Land Association, 35 L.Ed. 974, 142 U.S. 160; Johanson v. Washington, 190 U.S. 179, 23 S.Ct. 825, 47 L.Ed. 1008; Pengra v. Munz, 29 Fed. 830; U.S. v. Winona, etc., R. Co., 67 Fed. 949, 15 C.C.A. 96, affirmed 165 U.S. 463, 17 S.Ct. 368, 41 L.Ed. 789; U.S. v. Schlierholz, 133 Fed. 333; Neff v. U.S., 165 Fed. 273, 91 C.C.A. 241; New Dunderberg Min. Co. v. Old, 79 Fed. 598; King v. McAndrews, 111 Fed. 860, 50 C.C.A. 29; Knight v. United Land Ass'n, 12 S.Ct. 258, 142 U.S. 161, 35 L.Ed. 974; Orchard v. Alexander, 15 S.Ct. 635, 157 U.S. 372, 39 L.Ed. 737; Hawley v. Diller, 20 S.Ct. 986, 178 U.S. 475, 44 L. Ed. 1157. His findings of fact are conclusive upon the courts. Clear Lake Power etc. Co. v. Chriswell, 31 Idaho 339, 173 P. 326; Hurst v. Idaho Iowa L. R. Co., 42 Idaho 436, 246 P. 23; 50 C. J. 1089, sec. 485. His rulings, however, on questions of law may be reviewed. 50 C. J. 1091, sec. 486; Hawley v. Diller, 44 L.Ed. 1157, 178 U.S. 475.
The lands attempted to be conveyed to plaintiffs' predecessors were never authorized to be conveyed by the state. (United Land Assn. v. Knight , 85 Cal. 448; 142 U.S. 160; Carr v. Quigley , 57 Cal. 394; McLaughlin v. Heid , 63 Cal. 208; Chicago etc. Co. v. Oliver , 75 Cal. 194; 7 Am. St. Rep. 143.) The legislature had no right to dispose of the lands, even if it had tried to do so. (Illinois Central Ry. Co. v. Illinois , 146 U.S. 387.)