Where a grant of land in California describes it by name and
boundaries, and then states that the land of which donation is made
is one league in length and three-quarters of a league in breadth,
a little more or less, as shown by the map which goes with the
expediente, with the usual reservations of the sobrante or overplus
to the use of the nation, the grant will be confirmed to the extent
of one league in length and three-quarters of a league in breadth,
without extending it to the boundaries mentioned.
All the title papers are set forth in the opinion of the
Court.
Page 63 U. S. 165
MR. JUSTICE McLEAN delivered the opinion of the Court.
"
[Translation of Title]"
"Provisionally authorized by the Administration of the Maritime
Custom-House of Monterey for the years 1832 and 1833."
"Jose Figueroa, General of Brigade of the national Armies of
Mexico, Commander General, Inspector, and Superior Political Chief
of Upper California."
"Whereas Juan Jose Gonzales, a Mexican by birth, has, for his
own personal benefit and that of his family, petitioned for the
land known by the name of San Antonio, or El Pescadero, bounded by
the rancho Antonia Buelnos Sierra, the coast, and the Arroyo of
Buntano, the proper measures and examinations being previously made
as required by laws and regulations, using the powers which are
conferred on me in decree of the seventh of this month, in the name
of the Mexican nation, I have granted him the aforesaid land,
declaring to him the ownership of it by these presents -- said
grant being understood to be in entire conformity with the
provisions of the laws, subject to the approval or disapproval of
the most excellent territorial deputation and of the supreme
government, under the following conditions:"
"1. That he will submit to those which may be established by the
regulation which is to be made for the distribution of vacant
lands, and, in the meantime, neither the grantee nor his heirs can
divide or alienate that which is granted to them, subject to any
tax, entail, pledge, mortgage, or other encumbrance, even for pious
purposes, nor convey it in mortmain."
"2. He may enclose it, without prejudice to the crossings,
roads, and servitudes; he will enjoy it freely and exclusively,
Page 63 U. S. 166
making such use or cultivation of it as may best suit; but
within one year, at furthest, he shall build a house, and it shall
be inhabited."
"3. When the ownership is confirmed to him, he will request the
proper magistrate to give him juridical possession in virtue of
this title, by whom the boundaries will be marked out, in which,
besides the bounds, he will place some fruit or forest trees of a
useful character."
"4. The land of which donation is made him is one league in
length by three-quarters of a league in breadth, a little more or
less, as shown by the map which goes in the expediente; the
magistrate who may give the possession will cause it to be in
conformity with the ordinance, in order to mark out the boundaries,
leaving the surplus which may result to the nation for its
convenient uses."
"5. If he contravene these conditions, he will lose his right to
the land, and it will be subject to denouncement by another
person."
"In consequence I order that the present serving him for a
title, and being held as firm and valid, note be made of it in the
corresponding book, and it be delivered to the person
interested."
"Given in Monterey, on the 24th December, 1833."
"JOSE FIGUEROA"
"[Signed] AGUSTIN V. ZAMORANO,
Sec'y"
"OFFICE OF THE SURVEYOR GENERAL OF THE"
"UNITED STATES FOR CALIFORNIA"
"Samuel D. King, Surveyor General &c., and as such now
having in my office and under my custody a portion of the archives
of the former Spanish and Mexican territory or department of Upper
California, do hereby certify that the fifteen preceding and
hereunto annexed pages of tracing paper, numbered from one to
_____, inclusive, and each of which is verified by my initials,
S.D.K., exhibit true and accurate copies of certain documents on
file and forming part of the said archives in this office."
"In testimony whereof &c. "
Page 63 U. S. 167
"
[Translation of Expediente]"
"Provisionally authorized by the maritime custom house of
Monterey, for the years one thousand eight hundred and thirty-three
and 1834."
"[Signed] FIGUEROA"
"[Signed] JOSE RAFAEL GONZALES"
"
To his Excellency the Commanding General:"
"I, citizen Juan Jose Gonzales, native of the Mission of Santa
Cruz, resident of the Town of Branciforte, residing and employed in
said Mission of Santa Cruz, and mayor domo of the same; married,
with a family of thirteen persons; having served the nation eight
years and two months as a soldier, and having obtained my discharge
from his excellency the commanding general Don Manuel Victoria,
with the condition of furnishing a recruit, which I did at my own
expense; and finding myself with 500 head of large cattle, and
having no land or place to settle on; tired of the trouble of being
together in the same village where I have been, and am unable to
progress on account of the same; living where I have rated a great
loss in the stock which I have placed twelve years ago; and being
now actually favored by the same Mission of Santa Cruz, where my
deceased father sacrificed himself for twenty years, and where I
served in his place, the salaries of this post rent in the same
mission, Friar Antonio Real, satisfied with my services and those
of my deceased father, has wished to favor me, by assigning to me
the rancho of San Antonio, formerly El Pescadero Realengo, which is
not occupied by said mission, is distant twelve leagues to the
northwest, bounded by the rancho of San Gregoria, which place _____
delineated on the accompanying paper, including a square of about
four leagues, extending from the coast to the sierra, and from the
rancho of San Gregoria rancho occupied by citizen Antonio Buelna to
the rancho of La Punta de Nuevo, which is the further occupied by
the mission, and desiring a security or guarantee in the same
place, I apply, with the consent of the minister, to your
excellency, with the due respect, praying that you will be pleased
to give me in possession the aforesaid place, in consideration of
my family, and which will
Page 63 U. S. 168
confer favor and grace on your most attached subject and
servant, who wishes you many years of life &c."
"JUAN GONZALES"
"SANTA CRUZ, November 26, 1833"
"MONTEREY, November 29, 1833"
"In conformity with the laws on the matter, let the ayuntamiento
of the Town of Branciforte report whether the person interested in
this petition possesses the requisites to the _____ attended to in
his petition; whether the land he asked is included in the 20
leagues from the boundary, or 10 from the sea shore, referred to in
the law of August, 1824; if it is irrigable, dependent on the
seasons or pasture of land; if it belongs to the ownership of any
private individual, corporation of pueblo, with everything else
which may be proper to explain the matter."
"This being concluded, it will pass this expediente to the
reverend father minister of the Mission of Santa Cruz, that he may
report what he knows on the matter. Senor Don Jose Figueroa,
general of brigade and commandant, inspector general, and superior
political chief of the territory, thus ordered, decreed, and
signed, to which I certify."
"FIGUEROA"
"AGUSTIN V. ZAMORANO,
Sec'y"
"In compliance with your excellency's _____ to this
ayuntamiento, under your command in the decree of November 29th,
1833, to report whether the person interested in this petition
possesses the requisites to be attended to in his request, and if
the land he asks for be included in those referred to in the
law."
"The land asked for by the person interested in this petition
may now be granted to him, for he has all the circumstances
required to be attended to, and is entitled to it."
"It is an unoccupied place; has no irrigable lands; has land
dependent on the seasons; has been recognized as the property of
the Mission of Santa Cruz; and for the purposes it may serve, I
sign this with the second regidor, on account of the absence _____,
in the town hall of the Town of Branciforte, on the 2d December,
1833."
"[Signed] ANTONIO ROBLES"
"[Signed] JOSE MARIA SALASON"
Page 63 U. S. 169
"I agree to there being granted the petitioner, Juan Jose
Gonzales, the place he asks for, as it is a place which this
mission does not at present occupy; nor is it deemed necessary for
it, in consideration of the fact that it has land enough for its
cattle, and that, being unoccupied, it is considered public land;
besides, when the mission occupied it _____ had abundance of
cattle, _____ have died and diminished, and the few that remain do
not need the land. He is a person of merit, and the mission ought
to place him before any other person. He has all the requisites,
and is entitled to it; and _____ testimony I sign, on the 7th
December, 1833."
"Friar ANTONIO SURRA DEL REAL"
"
Minister of Santa Cruz"
"MONTEREY, December 10, 1833"
"Let it pass to the alcalde of this capital, before whom the
party will produce, on information of three fit witnesses, who will
be questioned upon the following points:"
"1. If the petitioner is a Mexican by birth; if he has served in
the army; if he is married, and has children; if he is of good
conduct."
"2. If the land he asks for is of the ownership of any
individual, or corporation or pueblo; if it is irrigable, dependent
on the seasons, or pasture land, and what is its extension."
"3. If he has cattle with which to stock it, or the possibility
of acquiring them."
"This examination being made, let him return the expediente for
its decision. His excellency the political chief, commanding
general, inspector and general of brigade, Don Jose Figueroa, thus
ordered, decreed, and signed it, to which I certify."
"[Signed] JOSE FIGUEROA"
"[Signed] AUGUSTUS V. ZAMERANO"
"Let the party interested in this expediente be notified to
present the witnesses who are to be examined on the points included
in the superior decree of the 10th instant which precedes this.
"
Page 63 U. S. 170
"Thus I, the alcalde, decreed, ordered, and signed it, with the
assisting witnesses, in the established form."
"MARCELINO ESCOBAR"
"Assisting witnesses:"
"[Signed] JOSE MARIA MALDORADO"
"[Signed] JOSE ANTONIO ROMERO"
"On the same day, present Juan Jose Gonzales, the foregoing act
was made known to him, and having understood it, he said that he
heard it, and that he presents citizens Salvio Pacheco, Manuel
Larios, and Felipe Hernandez, and he signed it with me and the
assisting witnesses."
"[Signed] N. ESCOBAR"
"[Signed] JUAN GONZALES"
"Assisting witnesses:"
"[Signed] JOSE MARIA MALDORADO"
"[Signed] JOSE ANTONIO ROMERO"
"In the port of Monterey, on the 13th day of the month of
December, one thousand eight hundred and thirty-three, present,
Salvio Pacheco, witness presented on the part of the persons
interested, oath was received in form of law."
"The petitioner is a Mexican by birth; was in the army; has
thirteen children. The land petitioned for has no private
ownership; understood it belongs to the Mission of Santa Cruz; that
its extent is from a league to a league and a half from east and
from north to south; he does not know how much of it is, as it is a
canon which reaches to the rancho of citizen Antonio Buelna. He has
two hundred head of cattle, a drove of mares and tame horses
&c."
"Manuel Larios, a witness, says he is a Mexican; was in the
army; is married; has children; knows that the land petitioned for
pertains to the Mission of Santa Cruz; that the said place is
dependent on the seasons; that the land is about a league or more
wide, and two from the beach to the hills."
"A witness, Felipe Hernandez, repeats the same facts as stated
by the prior witness."
"MONTEREY, December 3, 1833"
"The official acts ordered in the foregoing superior being
finished,
Page 63 U. S. 171
let the expediente be returned to the superior political chief
for the superior decision."
"N. ESCOBAR"
"MONTEREY, December 17, 1833"
"Having seen the petition with this expediente, commences the
report of the municipal authority of the Town of Branciforte, that
of the Rev. father minister of Santa Cruz, the declarations of the
witnesses, together with all other things which were presented and
deemed proper to be seen, in conformity with the provisions of the
laws and regulations on the matter, Juan Jose Gonzales is declared
owner in fee of the land known by the name of San Antonio, or El
Pescadero, bounded by the rancho of Antonio Buelna, the sierra, the
coast, the Arroyo del Bratano, subject to the conditions which may
be stipulated. Let the corresponding patent issue, let note be made
in the proper book, and let this expediente be directed for the
approbation of the most excellent territorial, in which case the
person interested, who will be made to know this decree, will again
present his title, that it may be revalidated."
"JOSE FIGUEROA"
"The committee on colonization and vacant lands, to whom was
referred the expediente, the formation of which was caused by the
petition of citizen Juan Jose Gonzales for the place named San
Antonio, or El Pescadero, having examined it with the corresponding
circumspection, taking into consideration at the same time the law
of August 18, 1824, those agreeing with it, and the general
directions which, on the 24th November, 1828, the supreme
government of the Union gave for the better fulfillment of the
first; from the examination of the expediente, the committee has
become impressed with the opinion which it before held of the
scrupulousness and tact with which his excellency the political
chief ordered it to be made, so that neither in its formation, nor
in the steps taken, in any essential requisite wanting; wherefore
the committee concludes by offering to the deliberation of this
most excellent deputation the following proposition:"
"1. Approved the grant made to citizen Juan Jose Gonzales of the
place named San Antonio El Pescadero, on the 24th
Page 63 U. S. 172
December, 1833, in entire conformity with the provisions of the
law of August 18, 1824, and article 5th of the regulation of
November, 1828."
"MONTEREY, May 10, 1834."
"[Signed] CARLOS ANTONIO CARRILLO"
"[Signed] JOSE CASTRO"
"[Signed] JOSE T. ORTEGA"
"[Signed] JOSE A. ESTUDILLO"
"MONTEREY, May 17, 1834"
"In sessions of this day, the proposition of the foregoing
report was approved by the most excellent deputation ordering that
the expediente be returned to his excellency the superior political
chief, for the convenient purposes."
"[Signed] JOSE FIGUEROA"
"JUAN B. ALVARADO,
Secretary"
"GEORGE FISHER,
Secretary"
"
Opinion of the Board by Com'r R. Aug.
Thompson"
"For the place called San Antonio, or El Pescadero. Claim of for
one square league of land in the county of Santa Cruz."
"This claim is founded on a grant made by Governor Figueroa on
24th December, 1833, to the present claimant, which was duly
approved by the territorial deputation on the 17th day of May
following. The grant describes the land as that known by the name
of San Antonio, or El Pescadero, bounded by the rancho of Antonio
Buelna, the sierra, the coast, and the Arroyo de Butano. The fourth
condition states that the land of which donation is made is one
league in length and three-quarters of a league in breadth, a
little more or less, as shown by the map which goes with the
expediente, with the usual reservations of the sobrante or overplus
to the use of the nation. The boundaries are distinctly marked out
on the map, and although there is no scale on the map by which the
extent of the boundaries can be ascertained, yet there is a note
made upon it stating that they extend one league from north to
south, and three-quarters of a league from east to west. This
description, taken in connection with that contained in the grant,
shows very clearly that it is a grant by metes and bounds, and that
consequently no sobrante can result. "
Page 63 U. S. 173
The original grant is in evidence, and the genuineness of the
signatures of the governor and secretary appearing thereon are duly
proved by the deposition of David Spence. Manuel Jimeno proves that
the claimant has occupied the land since 1833, that he had a house,
horses, and sowings on it, and he still lives on it.
Entertaining no doubt, from the facts of the case, that the
grant is a valid one to the extent of one league in length, and
three-quarters of a league in breadth, it is hereby confirmed to
that extent; the three-fourths of a league to be surveyed within
the outboundary represented on the diseno.
MR. JUSTICE CAMPBELL delivered a separate opinion, in which MR.
JUSTICE NELSON concurred.
The plaintiff was confirmed in his claim to a parcel of land
designated as San Antonio, or El Pescadero, in the County of Santa
Cruz, by the board of commissioners. The description of the land in
their decree is as follows:
"Being the same which has been held and occupied by the present
claimant since the year 1833 to the present time, and is bounded as
follows: beginning at the mouth of the Arroyo de Butano and running
along the seacoast and bordering thereon to the boundary line of
Antonio Buelna, the distance being one league, a little more or
less; thence with the line of said Buelna east three-quarters of a
league; thence a line southerly parallel with the sea coast until
it intersects the Arroyo del Butano, at the distance of
three-quarters of a league from the coast; thence along said arroyo
and bordering thereon to its mouth, the place of beginning; the
same being in extent three-fourths of a square league, a little
more or less. For a more particular description, reference being
had to the original grant and map contained in the expediente from
the archives now in the custody of the United States Surveyor
General for California, the first of which and a traced copy of the
latter are filed in the case."
The parties appealed to the district court, and, upon the
hearing of the cause, the decree of the commissioners was affirmed
and it was further ordered that the claim of the
Page 63 U. S. 174
said Juan Jose Gonzales is a good and valid claim to the land
known by the name of San Antonio, or Pescadero, to the extent and
within the boundaries mentioned in the grant and map, the original
of the former and copy of the latter being on file in the records
of this case. From this decree the plaintiff appealed. The only
question presented on the appeal is whether the grant is to be
located according to the natural calls in the grant, or whether the
claimant is to be confined to the quantity specified in the 4th
condition of the grant. But the decision of this question is
reserved in the decree of the district court, and will properly
arise after the location. The failure to direct the precise manner
of the location is not erroneous. The result therefore is that the
decree must be affirmed.