The Fossat or Quicksilver Mine Case
69 U.S. 649 (1864)

Annotate this Case

U.S. Supreme Court

The Fossat or Quicksilver Mine Case, 69 U.S. 2 Wall. 649 649 (1864)

The Fossat or Quicksilver Mine Case

69 U.S. (2 Wall.) 649

APPEAL FROM THE DISTRICT

COURT FOR CALIFORNIA

Syllabus

1. An appeal lies to this Court from a decree of the District Court for California, in a proceeding under the act of 14th of June, 1860, 12 Statutes at Large 33, commonly called the Survey Law.

2. If no appeal from such a decree be taken by the United States, they may appear in this Court as appellees, but cannot demand a reversal or change of the decree.

3. If a California land claim has been confirmed by a decree of the district court under the act of 3d of March, 1851, 9 Statutes at Large 631, and the decree of confirmation fixing the boundaries of the tract stands unreversed, a survey under it is the execution of that decree, and must conform to it in all respects.

4. The Survey Law of 14th of June, 1860, gives the district court no power to amend or change the decree of confirmation.

5. When the title papers designate the beginning place of a straight line, and fix its course by requiring that it shall pass a known and ascertained point to its termination at a mountain, such line cannot be varied by the fact that a rough draft (a Mexican diseno) on which it is

Page 69 U. S. 650

drawn, was not true at all to scale, and that on it the line strikes two ranges of mountains in such a way as to leave certain unnamed elevations on the draft which, with more or less plausibility, it was conjectured, but only conjectured, were meant to represent certain peaks in nature well known, more to the east or west than by reference to other objects on the draft they in nature hold.

About fifteen miles south from the southern end of the Bay of San Francisco, and separated from it by irregular mountain slopes, lies a vale, called the Canada de los Capitancillos, or Valley of the Little Captains. [Footnote 1] The northern limit of this valley is an elevation called the Pueblo Hills -- hills picturesque enough, with nothing else, however, as yet, specially to mark them. Descending or turning these, the traveler is in the vale.

Along the south edge of the valley runs a ridge of hills, range of mountains, or Sierra; for by each of these terms, as by several others, the elevation might properly or improperly be named. A value different from that of the Pueblo Ridge belongs to these. These are filled with cinnabar of unrivaled purity and richness. Here is the ALMADEN MINE -- a mine that with others near it, the Enriqueta, San Antonio &c., is estimated at $20,000,000 -- the gem of quicksilver mines in the New World, perhaps of the entire earth. This range we call the Mining Range, or Mining Ridge. The opposite map may assist a comprehension. [Footnote 2]

Immediately south of, or behind this Mining Range, and detached from it, for the most part, by a steep, narrow,

Page 69 U. S. 651

broken, and irregular depression, gorge, or valley, rises a ridge, range, or Sierra, different, as it was generally regarded,

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from the other, though by some persons regarded as the main part of the same range. This elevation we designate as the Azul Range, or Azul Ridge. [Footnote 3]

Page 69 U. S. 652

The northern limit of the valley we have said is the Pueblo Hills. The top of these is about 1,000 feet above the level of San Francisco Bay and 400 above the lowest part of the valley immediately south of them.

The Mining Ridge at its greatest elevation rises several hundred feet higher than the Pueblo Hills in front of it, across the valley. The Almaden Peak, one peak of this ridge, at its eastern extremity, is 1,500 feet above this level, but the elevations of the ridge generally, as they extend towards the west, diminish in height and are broken by various depressions, which permit easy access from the valley on the north to the foot of the depression or valley at the base of the Azul Range. The Azul Range, behind, rears its head suddenly up, far above the Mining Range before it, to the height of 4,000 feet above the level of the sea.

The Mining Range extends from east to west, and parallel with the Azul Range. It runs about five miles. On its slopes, as well on that towards the valley on the north as on that which makes one side of the ravine upon the south, the best and most permanent grazing of the region is to be found. At its widest place, it is more than a mile and a half from base to base, measuring directly through, and it slopes off gradually at both ends. It is connected with the Azul Range by a ridge four hundred feet lower than itself, and twenty-four hundred lower than the Azul Range. This is a watershed, on one side of which are the sources of the Capitancillos and on the other those of the Alamitos. The one stream runs between the two ranges, and turns to the north at the western end of the Mining Range. The other flows eastward, and turning the eastern end of the range as the other had done the western, crosses the valley till its course is arrested by the Pueblo Hills. Here, turning its course to run along their base, it runs westward till it meets the other stream, and forming with it the Guadalupe River, the two discharge their waters through its channel into San Francisco Bay.

At the place where the Alamitos strikes the Pueblo Hills,

Page 69 U. S. 653

it is joined by a mountain stream called the Arroyo Seco, [Footnote 4] a point which the reader must observe.

Nearly in the center of this valley stands a little hill -- Loma, as it is called in Spanish -- its side or skirt sloping irregularly by a series of graceful undulations towards the plain, its descending curve thus forming that which it required no great imagination to call a "lap."

Such is the valley, its boundaries and its features, as they strike the eye.

In the eastern part of it, an old Mexican, Sergeant Don Jose Reyes Berreyesa, fixed himself, about 1834, by leave of Governor Figueroa. Adjoining him on the west, and holding the western part, was another Mexican, Leandro Galindo. They both built their houses and made their chief improvements at the base of the Pueblo Hills -- that is to say, opposite and away from the Mining and the Azul Ranges, their exposures to the south. Neither of them had any title but such provisional ones as were usual in California while it yet belonged to Mexico, in anticipation of a final grant. In time, Galindo went away, and was succeeded by Justo Larios, who continued his improvements at the foot of the Pueblo Hills, and granted a small piece of land, at the western extremity of the hills and near the junction of the Capitancillos and Alamitos, far off from the southern ridges, to a certain Foster. [Footnote 5] Larios and Berreyesa, however, got along less amicably than had done Galindo and his military neighbor. Berreyesa complained to the Governor that Larios claimed land that was his, and had actually removed his house and set it on the dividing line. Larios, he said, had "room to extend himself outside of the Canada," while he, Berreyesa, "had absolutely nowhere to enlarge." Larios, about the same time presented his petition,

Page 69 U. S. 654

complaining of Berreyesa as overbearing and disposed to be rapacious. The matter disturbed the happy valley and threatened to become a feud. Governor Alvarado referred

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Page 69 U. S. 655

both petitions to the Prefect, the highest judicial officer in his department, and directed him to call the parties before him, to confront them with one another, hear their proofs, and to report the result of his investigation. The Prefect did this. The parties came before him and he succeeded in conciliating them. Berreyesa produced a diseno, and with that before them they agreed upon a division line as follows:

"A straight line (una recta &c), from the angle which the Alamitos forms with the Arroyo Seco, direction southward, passing by the eastern base OR over the eastern skirt, OR lap (the meaning was not clear), of the loma [Footnote 6] (rumbo al Sul LA FALDA de la loma), in the center of the valley TO THE Sierra."

Upon this diseno the Prefect traced a dotted line, which showed what had been agreed upon. He then reported the whole matter to the Governor, and the map, with the dotted line or "L-i-n-d-e-r-o" upon it, went to the archives. A copy is opposite.

The controversy being settled, Larios petitioned the Governor for a grant. Alvarado made it. Thus it ran:

"I declare Justo Larios owner of the tract called 'Los Capitancillos,' bounded by THE Sierra, by the Arroyo Seco on the side of Santa Clara, and by the tract of Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and the Alamitos, southward to THE Sierra, passing by the eastern base, OR over the eastern skirt or lap (rumbo al Sul LA FALDA) of the loma, in the center of the valley."

The grant was subject to these ordinary conditions:

"2d. He shall solicit the proper judge to give him juridical possession in virtue of this decree, by whom the boundary shall be marked out &c."

"3d. The land herein referred to is one league of the larger size, a little more or less. The judge who shall give the possession shall have it measured in conformity to law, leaving the

Page 69 U. S. 656

surplus which remains to the nation for the purposes which may best suit him."

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Page 69 U. S. 657

The diseno submitted by Larios appears on the page opposite. [Footnote 7]

About this same time, Berreyesa applied for a grant. His petition prays for a grant of two sitos, to extend from the dwelling house of Larios up to the matadero, [Footnote 8] "with all the lomas (hills), that pertain to the Canada." The dispute having been in the meantime settled, the Governor (August 20, 1842) made the concession. The grant recites the petition of Berreyesa for a part of the place called the Canada de los Capitancillos, bounded on the north by the lomas bajas of the Pueblo San Jose; on the south by the Sierra; on the west by the rancho of Larios, which has for boundary the angle formed by the Arroyo Seco, and that of the Alamitos course south, the base (or skirt) of the hill situated in the center of the Canada until arriving at the Sierra: (el cual tiene por lindero en angulo que forma el Arroyo Seco y el de los Alamitos, rumbo Sur, la falda de la loma, situada en el centro de la Canada). [Footnote 9]

To the reader who has been able to get before his mind the topographical nature of this place, it will be obvious that questions might arise on the language of the grant to Larios. There were two ridges, or two parts of one ridge, either of which ridges, or parts of a ridge, might be styled a Sierra.Sierra means a saw, and is a term applicable, in some sense, to any range or ridge of hills, serrated as every one naturally is. In certain aspects -- geologically, perhaps, or possibly, topographically maybe as well -- the Mining Range was part of the Azul Range. Was it so within the meaning of the Governor and grant? And bearing on this question

Page 69 U. S. 658

of philology would come perhaps another like it: "What meant in law the word Canada?" Los Capitancillos was a canada. But did this mean a valley so pure and simple that no elevation whatever could break its plain? or might it hold the Mining Ridge and let the vaster Azul Heights overtop the whole, and leave both plain and mine to insignificance below? These were questions which the United States might have to litigate against Berreyesa and Larios both united.

Then assuming the Mining Ridge to be part of the valley, and the United States to be thus disposed of, there might come another question -- a question for Larios and Berreyesa, after disposing of the government, to litigate between themselves. What did "falda" truly mean? It was a term the very favorite of poetry, and with a sense elegantly answered -- answered with truth as well -- by our English "lap," or "skirt," or "fold." Was this the sense in which the old Mexican soldier and his lately litigious neighbor understood it, when making peace for themselves, they made one of the greatest lawsuits which the world has seen for others?

Even conceding "falda" to mean the base of the hill, and that the parties had meant to pass it, another question might still arise upon the very lindero and map which at first seemed so plain as to render question impossible. The line was to pass the base, but did the diseno of Berreyesa, on which it was traced, not show that it also meant to pass the Mining Ridge (on this map plainly marked, and bearing the name of lomas bajas), so as to leave much its greater part with him. In nature, could any line drawn from the junction of the creeks south, past the base, do this? Then on his diseno certain elevations were marked, both on the Mining Ridge and on the Azul Ridge behind. One on the Mining Ridge was especially prominent at its eastern end. Were there any known peaks, in nature, on these ridges? If so, could any line drawn as we have mentioned be made and leave them in that relative position where the diseno seemed to place them? The difficulty may be comprehended by any

Page 69 U. S. 659

reader who compares the map at p. <|69 U.S. 651|>651, a map of the actual related topography, with the diseno of Berreyesa, which gives the parts, but in positions less relatively true.

On these niceties of language -- on such constructions of rude drafts -- depended in part the question whether this Mine of the Almaden -- the glory of the Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla -- should belong to a few citizens or to a whole republic; to the representatives of Justo Larios, to those of "the sergeant Berreyesa," or to the United States as national domain.

The grant was of the valley. The point of departure was confessedly the junction of the creeks Alamitos and Arroyo Seco. A line running "southward" "to the Sierra" Azul, ended the rights of the United States in the matter. A line running "southward" at the base of the loma, as distinguished from one which should be sustained in its curving folds, ended Berreyesa's also. If, therefore, the line was to be run to the Sierra Azul, and at the base of the loma, south and straight from the union of the creeks, the mine belonged to Larios or to whoever might be his fortunate successor.

The questions were worth a controversy.

By 1852, California was a state of the American Union, and three-quarters of the property granted to Larios had become vested in one Fossat; the remaining fourth (which was in the direction of the mission property of Santa Clara, and at the extreme west of the valley) being owned by the Guadalupe Mining Company. [Footnote 10] Fossat now presented his petition to the land commissioners appointed by the Act of Congress of March 3, 1851, to settle the respective rights of the United States and claimants under the former government to lands in California, for a confirmation of his claims derived from Larios. The board decided in favor of it, and the United States appealed to the district court; Berreyesa, however, being no party to the specific proceedings.

Page 69 U. S. 660

That court, saying nothing whatever in its opinion on the question of where the line meant to be fixed on by Larios and Berreyesa would strike the Azul Range (if prolonged to that extent) as respected the Almaden Mine, and as respected the now known and actual topography, went into an argument to show that it must at least come somewhere to that range, and over the Mining Range; in other words, that the west portion of the Mining Range, whatever that portion might be, did not belong to the United States.

The court accordingly decided that the grant was good for the place known as Los Capitancillos, bounded and described on the south by the Azul Range, as distinguished from the lower hills or Mining Ridge; on the west (about which there was no question) by Arroyo Seco on the side of Santa Clara. The decree, then, went thus as respected the eastern line:

"On the east by a line running from the junction of a certain other rivulet, called Arroyo Seco, and the Arroyo de los Alamitos, southward to the aforesaid main Sierra, passing by the point or part of the small hill situated in the center of the Canada, which is designated in the expedientes and grants of Justo Larios and Jose Reyes Berreyesa as 'la falda de la loma,' and crossing the range of hills designated above as the Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla, and in which are situated the said Guadalupe, San Antonio, and New Almaden Mines, and which is the same range of hills designated 'Lomas Bajas' on the diseno or map in the aforesaid expediente of Jose Reyes Berreyesa, the said eastern line herein described being intended to be the same line agreed upon as the line of division between the lands of Justo Larios and Jose Reyes Berreyesa, as expressed in the respective expedientes and grants of said Justo Larios and Jose Reyes Berreyesa, and delineated by the dotted line on the said diseno or map in the expediente of Jose Reyes Berreyesa; in the location of the said line reference to be made to the description thereof in the said expedientes and grants, and the delineation thereof on the said diseno or map in the expediente of Jose Reyes Berreyesa, which expedientes, grants, and diseno, or map, are on file and in evidence in this case. "

Page 69 U. S. 661

The northern boundary of the tract was declared to be that shown in the diseno or map of Larios; which was in effect the stream, marked on his draft as the Arroyo Capitancillos, but on the map styled the Alamitos.

Confirmation was thus made of the whole tract granted to Larios, with the exception of the two adjacent parcels thereof lying on the westerly end of said tract, and claimed by the Guadalupe Mining Company. This gave him a tract of about a league and three quarters.

The court in its opinion noted, indeed, that only three of the boundaries were designated in the grant, the southern, the western, and the eastern, but inclined to think that the description of the tract by name, as Los Capitancillos, a known valley, and the delineation on the diseno of Larios of the two ranges of hills within which it was contained, sufficiently indicated the location of the northern boundary, the mention of which was omitted in the grant; especially as the call was for a league pocos mas o minas -- a league more or less.

From this decree the United States appealed to this Court. [Footnote 11] This Court considered that there was more weight in the last point which the court had noted than the court itself gave to it, and reversed that decree; Campbell J., who gave the opinion, remarking in different parts of it as follows:

"The district court confirmed the claim of the appellee to land limited by specific boundaries, and ascertained those boundaries, as they exist on the land, with precision. Under this decree the grant to Larios includes seven thousand five hundred and eighty-eight 90/100 acres. [Footnote 12]"

"We concur in the opinion of the Board of Commissioners and of the district court, that affirms the validity of the grant of the Governor of California to Justo Larios, and the regularity of the conveyances through which the claimant deduces his title."

The court here gave an account of the dispute between Larios and Berreyesa, and of the settlement of it, and went on:

"The Governor granted the land to Larios, to be his property,

Page 69 U. S. 662

subject to the approval of the Departmental Assembly, and to the performance of conditions. [Footnote 13]"

"The southern, western, and eastern boundaries of the land granted to Larios are well defined, and the objects exist by which those limits can be ascertained. There is no call in the grant for a northern boundary, nor is there any reference to the diseno for any natural object or other descriptive call to ascertain it. The grant itself furnishes no other criterion for determining that boundary than the limitation of the quantity, as is expressed in the third condition. This is a controlling condition in the grant. The delivery of juridical possession, an essential ceremony to perfect the title in the land system of Mexico, was to be accommodated to it. The diseno presented by the donee to the Governor to inform him of his wants represents the quantity to be one league, a little more or less. This representation is assumed to be true by the Governor, and it forms the basis on which his consent to the petition is yielded."

"He prescribes to the officer to whom he confided the duty of completing the title to measure a specified quantity, leaving the surplus that remains to the nation as preparatory to the delivery of judicial possession to the grantee. The obligation of the United States to this grantee will be fulfilled by the performance of the executive acts which are devolved in the grant on the local authority, and which are declared in the two conditions before cited. We regard these conditions to contain a description of the thing granted, and in connection with the other calls of the grant they enable us to define it. We reject the words, 'a little more or less,' as having no meaning in a system of location and survey like that of the United States, and that the claim of the grantee is valid for the quantity clearly expressed. If the limitation of the quantity had not been so explicitly declared, it might have been proper to refer to the petition and the diseno, or to have inquired if the name, Capitancillos, had any significance as connected with the limits of the tract, in order to give effect to the grant. But there is no necessity for additional inquiries. The grant is not affected with any ambiguity. The intention of the government of California is distinctly declared, and there is no rule of law to authorize us to depart from the grant to obtain evidence to contradict, vary, or limit its import. "

Page 69 U. S. 663

"The grant to Larios is for one league of land, to be taken within the southern, western, and eastern boundaries designated therein, and which is to be located, at the election of the grantee or his assigns, under the restrictions established for the location and survey of private land claims in California, by the executive department of this government. The external boundaries designated in the grant may be declared by the district court from the evidence on file, and such other evidence as may be produced before it, and the claim of an interest equal to three-fourths of the land granted is confirmed to the appellee."

"The decree of the district court is reversed, and the cause is remanded to that court with directions to enter a decree conforming to this opinion."

The case was again heard below, and on new evidence, tending, most of it, to the subject of the southern boundary. On the 18th of October, 1858, the district court again gave an opinion and again made a decree. The opinion was a further argument on the evidence, new and old alike, to show that the Azul Range was the true south boundary -- "the most important, if not the only point discussed," the court said, "on the hearing," and which the court treats as "the question to be determined." Nothing is argued about the eastern boundary. The decree again decreed that the grant was a valid one. Its southern and western boundaries were in substance as already above set forth. The eastern boundary was thus again disposed of.

"The eastern boundary is a straight line commencing at the junction of a certain rivulet called Arroyo Seco, with the Arroyo de los Alamitos, and thence running southward to the aforesaid main sierra or mountain range, passing by the point or part of the small hill situated in the center of the Canada, which is designated in the expedientes and grants of Justo Larios and Jose Reyes Berreyesa as 'la falda de la loma,' and crossing the range of hills designated above as the 'Cuchilla de la Mina,' or 'Cuchilla de la Mina de Luis Chabolla,' in which are situated the said Guadalupe and New Almaden mines, and which is the same range of hills designated 'Lomas Bajas,' on the diseno or map in the expediente of Jose Reyes Berreyesa on

Page 69 U. S. 664

file in the case, the said eastern line crossing, also, the said Arroyo de los Alamitos and terminating at the base of said main sierra; and the said eastern line herein described, being intended to be the same line agreed upon as the line of division between the lands of Justo Larios and Jose Reyes Berreyesa, as expressed in the respective expedientes and grants of said Justo Larios and Jose Reyes Berreyesa, and delineated by the dotted line on the said diseno or map in the expediente of Jose Reyes Berreyesa; and in the location of said line, reference is to be made to the description thereof in the said expedientes and grants and the delineation thereof on the said diseno or map in the expediente of Jose Reyes Berreyesa, which expedientes, grants, and diseno or map are on file and in evidence in this case."

It was ordered that the fourth line should be run so as to include one league only; and the title was confirmed on that basis.

The United States again appealed to the Supreme Court, [Footnote 14] but a motion was made to dismiss the appeal because the decree below was interlocutory. The court did dismiss the appeal, and in the opinion say as follows:

"The court determined (when the case was here before),"

"that a grant under which the plaintiff claimed land in California, was valid for one league, to be taken within the southern, western, and eastern boundaries designated therein, at the election of the grantee and his assigns, under the restrictions established for the location and survey of private land claims in California by the executive department of the government. The external boundaries of the grant may be declared by the district court from the evidence on file, and such other evidence as may be produced before it; and the claim of an interest equal to three-fourths of the land granted is confirmed to the appellee."

"This motion to dismiss the present appeal is resisted, because the inquiries and decrees of the Board of Commissioners for the settlement of Private Land Claims in California, by the Act of 3d of March, 1851, in the first instance, and of the courts of the United States, on appeal, relate only to the question of

Page 69 U. S. 665

the validity of the claim, and by validity is meant its authenticity, legality, and in some cases interpretation, but does not include any question of location, extent, or boundary -- and that the district court has gone to the full limit of its jurisdiction in the decree under consideration, if it has not already exceeded it."

The court then examining this matter and declaring what the admitted duties of the district court were, adds:

"But in addition to these questions upon the vitality of the title, there may arise questions of extent, quantity, location, boundary, and legal operation, that are equally essential in determining the validity of the claim. In affirming a claim to land under a Spanish or Mexican grant, to be valid within the law of nations, the stipulations of the Treaty of Guadalupe Hidalgo, and the usages of those governments, we imply something more than that certain papers are genuine, legal, and translative of property. We affirm that ownership and possession of land of definite boundaries rightfully attach to the grantee."

And this Court concludes its opinion thus:

"But after the authenticity of the grant is ascertained in this Court, and a reference has been made to the district court, to determine the external bounds of the grant, in order that the final confirmation may be made, we cannot understand upon what principle an appeal can be claimed until the whole of the directions of this Court are complied with, and that decree made. It would lead to vexatious and unjust delays to sanction such a practice. It is the opinion of the court that this appeal was improvidently taken and allowed, and must be dismissed; and that the district court proceed to ascertain the external lines of the land confirmed to the appellee, and enter a final decree of confirmation of that land."

On the filing of this mandate of dismissal, the Surveyor General of California was ordered to survey the land confirmed in conformity with the decision of the district court, made 18th October. He made the survey, which was approved by the Surveyor General, 18th December, 1860, and

Page 69 U. S. 666

filed it, with a map, in the court below, 22d January, 1861. The survey and map, as was testified by the deputy surveyor Hays, and one Conway, a clerk in his office, who assisted in making it, was made in conformity with the decree which they had before them. That survey is indicated on the map, at page <|69 U.S. 651|>651, by a heavy connected line.

It appeared also that Berreyesa had at one time caused a private survey to be made of his tract, and this survey showed that the line lay essentially as marked by this heavy connected line. Another made for the Guadalupe Mining Company located it in the same way. A public survey, made by Surveyor General Hays, in 1855, located it also thus.

Not long before the above-mentioned order of the district court was made, Congress passed the act of June 14, 1860, [Footnote 15] commonly called the "Survey Act," which authorizes the district court to allow persons not parties to the record to intervene in matters of the survey and location of confirmed private land claims, and to show the true location of the claim. For that purpose they may produce evidence before the court, and on such proof and allegations the court shall render judgment. In regard to appeals, the whole language is simply, "And no appeal shall be allowed from the order or decree as aforesaid of the district court unless applied for within six months."

The survey was accordingly ordered into court. It made the Azul Range, as distinguished from the Mining Range, the southern boundary. The eastern line was drawn, as the reporter supposes -- for he never saw the plat -- from the junction of the two creeks Seco and Alamitos south, past the base of the loma; so leaving the mine on the land of Larios.

Berreyesa, Foster and others, who had not been parties to any of the immediate previous proceedings, now excepted to it.

Berreyesa excepted because the western boundary of his land constituted the eastern of that of Larios,

"to-wit, a line beginning at the junction of the Creeks Alamitos and Seco,

Page 69 U. S. 667

and running southerly to the main Sierra and Sierra Azul, crossing the Lomas Bajas in the manner shown by the diseno of the land granted to said Berreyesa; whereas the survey confirmed in this case locates the eastern line so as to include a tract of land within the exterior lines of the land granted to Berreyesa, and not granted to the said Larios."

Foster excepted because the tract being carried over far to the south, and being confined to one league, his small tract was left out. So, on similar grounds, did other parties who subsequently abandoned their exceptions.

The United States, by the district attorney, entered a formal appearance, but made no objection to the survey at any stage of the hearing, suggested no argument, and offered no evidence against it.

Fossat, who represented Larios, came in to protect the survey, averring that it was right, and should stand.

The district court -- considering that no decision had ever yet been made by it as to the eastern boundary, not understanding, apparently, that any supposed decision with regard to that line had been passed on by the Supreme Court in either of the decisions quoted in the preceding part of this statement; conceiving further, it would seem, that under the new act of 1860 (the "Survey Act," passed after the second decision in this Court was made), the court below might, on the intervention of Berreyesa, then for the first time heard in this particular cause, determine the eastern line, irrespective of any decree obtained by either party in a proceeding which it considered as a proceeding between himself only and the United States -- proceeded to settle the eastern line, and in some degree, it was argued, to treat all things de novo. A great deal of new evidence was taken in regard to this eastern line, evidence bearing also on the southern line. The scope of much of the former was to show entire error of scale in Berreyesa's diseno, and that regulating the eastern line by certain objects, clearly enough indicated on this diseno, other than the loma, the line could not be drawn south from the junction of the creeks past the loma to the point where that diseno showed that it meant to

Page 69 U. S. 668

come. The matter will be understood better further on in the case. The result of the whole was that, affirming the Mining Range as the south boundary -- that is to say, carrying the tract to the Azul Range, as being the true Sierra, the district court now made an east line, somewhat such as is exhibited by the light dotted line on the map at p. <|69 U.S. 651|>651. The line began at the junction of the two creeks, thence ran south to the eastern base of the loma; thence south 55

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