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,
image:a
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
image:b
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."
image:c
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� west to a point where another
angle was made; thence south 34� west to the Azul Range. The effect
was that while Larios or his representative got
some part
of the Mining Ridge, the eastern line was made to reach that ridge
at a point so far west that the ALMANDEN MINE, the great object of
contest, and the largest portion of the ridge, fell into the tract
of Berreyesa.
From this decree the claimants under Larios appealed to this
Court. So did Foster.
The United States took no appeal,
and the representatives of Berreyesa, of course, were desirous to
maintain the decree.
The whole case was now before this Court -- the case as it was
presented by all the evidence taken in all the proceedings below.
This was the case viewed as an original case.
But on this occasion it was here also, of course, as it might be
affected by what had been decided in it on the two different
occasions when it was here before on appeal, and when the court had
expressed itself, and had given mandates, such as have been
previously stated in this report. The effect of the district
court's
own two decisions on its power to decide further
was also to be considered; its power, perhaps, under the Survey Law
of 1860, to change the decree of confirmation.
As an original case -- the detached parts in which it presented
itself below, and on the three different hearings being brought
together, and all presented in sequence -- the matter was
essentially thus: the
disenos of both Larios and
Berreyesa, the last with the
L-i-n-d-e-r-o upon it, being,
of course, parts of the case everywhere.
1.
As to the southern boundary: witnesses were brought
to
Page 69 U. S. 669
show that the ranges were one sierra, and so that the tract did
not include any part of the Mining Ridge. Mr. Veach, a geologist,
swore thus:
"The Mining Ridge is detached from the main mountain by a stream
that runs from east to west, making a sharp hill between the higher
mountain and the plain; but
I look upon this as only a
bench-like portion of the mountain, which has been separated from
it by the gorge cut down by the stream. The reason why I so
consider it is the
gorge-like character of the valley of
the little stream, and the sharpness of the ridge, and the
elevation of the bottom of the gorge so considerably above the
level of the valley; it is, I should judge, 300 feet above it. From
geological considerations, also,
I should
consider this ridge clearly and distinctly a portion of the
mountain. The ridge does not present the spur-like character which
would show its detachment from the mountain, for it runs parallel
with the general course of the latter."
Mr. Matheson, engaged in the public surveys of the United
States, testified in the same way:
"I do not consider that there is a main sierra separate from any
other portion of the sierra. The Mine Ridge is merely a spur, and
connected by a ridge with the main sierra. You can travel from the
valley
right up to the highest point of the ridge."
Referring to the diseno of Larios (p. <|69 U.S. 656|>656),
it will be noted that his tract, as there indicated, came
to a range of hills called
Sierra del Encino
("range of
the live-oak," or, less accurately, perhaps, in
a grammatical point of view, "live-oak range"). [
Footnote 16]
Oaks, it was shown, grew everywhere about here. "There are a
considerable number of them," said one witness,
"on the mountains back of the Mine Ridge and also on the plains
north of it.
There are also a considerable number of them found
generally on the northern slope of the ridge, and presenting a
very beautiful green appearance. "
Page 69 U. S. 670
Then there was on this diseno but one sierra indicated. The
tract did not include it by passing over to any other behind it. No
second range was marked. No streams of any kind answering to any in
nature ran on this diseno at the foot of the range, though streams
did, in fact, run at the foot of the Azul Range. At the foot of the
Pueblo Hills, where a stream ran, in fact, one ran also on the
diseno.
Moreover, the residence of Larios -- that in which he had
succeeded Galindo -- was, like the home of Berreyesa, on the
north edge of the tract, at the foot of the Pueblo Hills.
[
Footnote 17] Larios was
living in this part of the valley. No tract of
one league,
not very irregular in shape, could include the Mining Ridge without
excluding nearly all the land along the base of the Pueblo Hills.
The maps, moreover, reversed the ordinary law which governs the
construction of maps and make the top represent the south, the
bottom the north, the right the west, and the left the east; hence,
an inference that the point from which everything was viewed was
the north edge of the valley. An experiment showed also that the
disenos of Berreyesa and of Larios were much the same in size, and
taking the two and putting them edge to edge in the manner of
"Indentures" -- fitting the edge which indicated the western side
of Berreyesa's tract against that which indicated the eastern side
of that of Larios, the Pueblo Hills, as marked on each, being
fitted and made the starting-point -- that the
Sierra del
Encino of the draft of Larios ranged itself opposite to the
Lomas Bajas (the Mining Ridge, undoubtedly) of
Berreyesa's, and not against the
Sierra Azul, so plainly,
on the draft of Berreyesa, distinguished from it. [
Footnote 18]
On the other hand, witnesses showed that in many respects
Page 69 U. S. 671
the two ridges might be considered different, and by many were
so; that the separation, if sometimes called a gorge or ravine, was
as often or oftener called a valley. Then one witness, an American
who had lived since about 1835 in California and near the place,
testified that the Mining Ridge had been known by the name of
Cuchilla de la Mina, and as a thing separate from the Azul
Range, often known by the name of
Sierra Santa Cruz, the
former being
connected with the latter only by a ridge at
one place. It was shown also, too, that Larios was quite
illiterate, "unable to handle a pen," and that his diseno had been
made for him by a friend of his named Rios, from oral description
given him at Monterey, away from the land, Rios himself never
having been on the land nor knowing anything about it. He had not,
however, drawn that of Berreyesa. The testimony -- that of
photography included -- showed, moreover, and this past any
question, that while the elevations hereabouts, and the plain also
were fruitful in oaks, there was upon the Azul Range one umbrageous
oak of venerable years and extraordinary size, standing on a spur
of the mountain, projecting boldly from the mass of the range and
presenting so clear an outline to an observer in certain directions
as to be visible for fifteen miles -- a prominent feature in the
landscape. It was testified, in fact, to be so well known to the
people of the neighborhood as to have acquired the name of
"Encino Coposo de la Sierra Azul." Further, on the diseno
of Berreyesa, the Mining Ridge was styled
Lomas Bajas,
which means "Low Hills," and the term Sierra was given to the Azul
Range -- "Sierra Azul." Hence, ground for an inference that the
term "Sierra," in the parlance of that place and time, had become
appropriated to the Azul Range, and that "Lomas Bajas," or Low
Hills, was the common title of the Mining Range.
The
L-i-n-d-e-r-o, it will be observed, crosses the
Mining Ridge and goes to the Azul Mountains, here designated Sierra
Azul.
2.
Then as to the eastern boundary. In favor of the
claim
Page 69 U. S. 672
of Larios, there of course was the
L-i-n-d-e-r-o and
its history.
On the other hand, and in favor of Berreyesa and of the line as
settled by the decree below, the testimony of Mr. W. J. Lewis, an
acute-minded and well educated surveyor, went to prove that the
compass on the diseno of Berreyesa was erroneous to the extent of
45�, the north point being represented that much to the eastward;
that the actual position of the loma was much more to the east, and
near to the junction of the
Alamitos and
Seco
than that diseno indicates; that standing at the junction of the
creek, and looking south, the range of the Azul did present one
peak at the west, Mount Umunhum, higher than any near it, and one
peak at the east, Mount Bache, much higher than any near it, and
higher even than Mount Umunhum. [
Footnote 19] Two elevations, answering or not answering
this character, are presented, it will be seen, on the diseno of
Berreyesa. So in nature at the Mine, which is near the eastern end
of the Mining Ridge, there is a peak known as the Mine Peak, and
from that peak there is a continuous descent to the Alamitos Creek.
On the diseno of Berreyesa, at the eastern edge of the
Lomas
Bajas, or Low Hills (meant confessedly to represent the Mining
Ridge, in some part, or to some extent), there was or was not, at
its east end, such an elevation and descent. Then it was shown by
Mr. Lewis -- who had spent months here, and made surveys and
observations of every natural feature of the region -- that while
indicating different objects very well, the diseno was drawn
without any reference to scale whatever, relative position being
wholly misrepresented. The house of Larios, for example, which was
in fact thirty feet wide, was made to cover a fifth of the width of
the valley, there a mile wide.
Mr. Lewis accordingly thought that he could see in the diseno an
intent to represent the three peaks, especially the
Page 69 U. S. 673
two former. [
Footnote 20]
Assuming this to be so, and comparing the diseno with
nature, there would be a great error. In nature, less than one mile
in length lay eastward of the division based on the L-i-n-d-e-r-o,
and over four and a half miles lay to the westward, whereas the
part of the ridge represented on Berreyesa's diseno as lying to the
westward of the line would be but five-sixths of a mile, and all
the rest was east, on Berreyesa's own land. Hence, the loma or
lomita, not being shown in a position true to scale, an inference
that Mount Umunhum -- an unmistakable object, and the Mining Peak
another -- should govern the location in preference to the lomita,
nearer the starting point and less definite,
as this surveyor
conceived. The difficulty was that by the terms of the grant,
the line was to be drawn at the
falda de la loma, which
the interests of Larios interpreted "base of the hill." If the line
could cross the hill, going over its "skirt" or "lap"
to a
perfectly ascertained point at the other side of the valley, a
decree fixing the eastern line as Lewis fixed it could be
supported. The case as to the meaning of "
falda" was thus:
one witness being Mr. Hopkins,
"keeper of the Spanish archives in the office of the Surveyor of
the United States for California, well acquainted with the Spanish
language and in the habit of translating documents,"
who had in fact made one translation of this grant.
"Q. You have translated the word
'falda' by the word
'skirt;' have you considered well the exact definition of the word
'falda,' and is it exactly expressed by the word used in
your translation?"
"A. I have carefully examined the definition of the word
'falda' as laid down in the standard lexicons of the
Spanish tongue. I have examined the word as used by ancient and
modern writers of the Spanish language, and I can think of no word
in the English language which more clearly or legitimately
Page 69 U. S. 674
expresses the meaning than the word 'skirt.' I arrive at this
conclusion from the definitions that I find given to the word in
the Spanish lexicons and from its use by celebrated Spanish
writers."
"Q. In the sense in which you use the word 'skirt,' to what part
of a hill or loma is it to be applied?"
"A. It is to be applied to the lower or inferior part of the
hill, or
loma."
"Q. Have you made any translation of the definition of the word
'falda' given in any lexicon? if yea, please produce that
translation."
"A. I have made a translation of the definition of the word
'falda,' as laid down in the Royal Dictionary of the
Spanish Academy, dedicated to Don Felipe V, and printed at Madrid
in the year 1732. Here it is:"
"
Falda. That part of the long dress from the waist
down, as the skirt or blouse of women."
" 'Queen Mary promptly dismounted, and, raising the edges of her
skirt
(falda) and the sleeves of her dress, drew a
hunting-knife from her belt, and with her own hands opened the
stag.'"
" 'The great queen was riding on a small ass, with the boy-god
(nino dios) in her lap
(falda).'"
"
Falda. It is very commonly applied to that which
drags from the afterpart of a dress worn either by a person holding
high office or as a symbol of sorrow by mourners accompanying a
funeral."
" He carried the train
(falda) of Mary, Queen of Scots,
the bride of the Dauphin Francis."
"
Falda. By allusion, or metaphorically, is called that
part of the hill or mountain which falls or descends from the
middle down. LAT.
Montis Radix."
" 'They reached the skirt
(falda) of a small hill. Naim
was a small city situated on the skirt
(falda) of Mount
Hermon.'"
"
Perrillo de falda (lap dog). The small pet dog, so
called because women are so much attached to them that they usually
keep them in their laps
(faldas) that they may not hurt
themselves."
" 'I wager that you do not know why Apelles painted Ceres, the
goddess of corn, with a lap dog
(parillo de faldas).'"
"Q. Please give such examples of the use of the word
'falda' by Spanish writers as occur to you, and give the
translation into English of those passages in which the word is
used. "
Page 69 U. S. 675
"A. The following I found some years ago:"
"The first is from Martin, a Spanish poet."
Iba congi endo flores
Y quard ando en la
falda
Mi ninfa para hacer una Guirnalda,
&c.
The translation of which is:
"My love was gathering flowers, and keeping them in her lap
(falda) to make a garden."
"The second is from Jose de Cadalso, a celebrated Spanish
scholar and poet:"
Con pecho humilde y reverente paso
Llegue a la sacra
falda del Parnaso;
Y como en sue nos vi que llamaban
Desde la sacra cumbre, y me alentaban
Ovidio y Taso, a cuyo docto influjo
Mi numen estos versos me produjo.
"The translation of which is:"
" With humble breast and reverent step I reached the sacred
foot (falda) of Parnassus, and, as in dreams, heard
calling me from the sacred summit, Ovid and Tasso, who inspired me,
and under whose wise influence my muse produced these verses."
"The third is a translation made by Juan de Janrequi, I think in
the sixteenth century, from an Italian play. The following is an
explanation of these four lines:"
"A romantic young shepherd was very much enamored of a beautiful
shepherdess, who, perhaps from a spirit of coquetry, treated him
with scorn; the young man took the disappointment so much to heart
that he madly threw himself from a neighboring precipice, and the
lines of the poet are a description given by an old hermit of the
condition and place in which he found the young man:"
" Yo me estaba junto a mi cueva, que vecina al valle, y casi al
pie del gran col lado yace, do forma
falda su ladera
enhiesta."
"The translation of which is:"
" I was at my cave, which lies near the valley and almost at the
foot of the great hill where its steep side forms a
(falda)
skirt."
"The fourth is from Jovellanos, a poet of the eighteenth
century:"
De la Siniestra orrilla un bosque ombrio
Hasta la
falda del vecino monte
Se extiende; tan ameno y delicioso
Que le hubiera jazgado el gentilisimo
Morada de algun dios, o a los misterios
De las Silvanas Driadas guadado.
Page 69 U. S. 676
"The translation of which is:"
" From the left shore shady wood extends as far as the
skirt of the neighboring mountain, so pleasant and
delicious that the pagan world might have devoted it as the
dwelling of some God, or to the mysteries of the sylvan
Dryads."
"The fifth is from a geological report made by Antonio del
Castillo, one of the professors in the Mining College of Mexico, in
relation to the quicksilver mine of Pedernal, and is as
follows:"
" La loma del Durazo esta unida por la parte del sur a otros de
la misma formacion que ella separadas por hondonadas o bajios de
corta estension, y limitadas al oriente por el mismo arroyo que
pasa por la
falda norte de la primera."
"The translation of which is:"
" The hill of Durazo is united on the part of the south to
others of the same formation with it, separated by ravines of short
extent, and limited on the east by the same arroyo which flows by
the northern skirt of the first."
"
Cross-examination"
"Q. Have you any reason for supposing that the Spanish
dictionary mentioned by you -- the Royal Dictionary of the Spanish
Academy, dedicated to Don Felipe V, and printed at Madrid in the
year 1732 -- is the
identical dictionary from which the native
Californians obtained their definition of the word
'falda,' or any other words in use by them?"
"A. I have no reason for so supposing."
On the other hand, evidence from other poets, other
dictionaries, and other prose writers tended to prove that if
falda meant skirt, it meant the edge of the skirt, its
extremity as well as its higher folds.
In addition to all this evidence on both sides, of geologists,
surveyors, scholars &c., photography and landscape painting
both were largely invoked for the cause of justice, and the judges
of this Court being unable, of course, to visit the place, three
thousand miles away, which the judge below had actually done, sworn
representations, the artists' oaths accompanying their work were
laid before this bench. To exhibit these photographs and landscapes
as part of the "case"
Page 69 U. S. 677
is beyond a reporter's art, as attained to up to this day. The
list below, if not giving to the reader an idea of the topography
as it existed in nature, will give him some idea of the very
special features of the case as it was exhibited in this Court, and
bring excuse to the reporter if, without the reader's having them
before him, the narrator has failed to present the "case" in its
truest and clearest form; and with those impressions from it which,
after all, may have influenced the decision. Here they are,
photograph and landscape alike -- the landscapes without their
colors:
PHOTOGRAPHS
Exhibit No. 1, Photographic View, taken near the junction of the
two creeks, looking westerly.
Exhibit No. 2, Photographic View, taken one-quarter of a mile
below the junction, looking southwesterly.
Exhibit No. 3, Photographic View of the eastern hill of the
Lomita, taken near the junction of the two creeks.
Exhibit No. 4, Photographic View, showing part of the valley and
Pueblo Hills.
Exhibit No. 5, Photographic View, showing continuation of valley
and Pueblo Hills, and part of Mine Ridge.
Exhibit No. 6, Photographic View, taken near the hacienda,
looking towards the southwest.
Exhibit No. 7, Photographic View, taken near the hacienda,
looking towards the northeast.
LANDSCAPES
Exhibit No. 1, Landscape View, showing Mine Ridge, a portion of
the Pueblo Hills, and the valley between, looking towards the
east.
Exhibit No. 2, Landscape View, showing Mine Ridge, a portion of
the Pueblo Hills, and the valley between, looking to the west.
Exhibit No. 3, Landscape View, taken from the west bank of the
Alamitos, south of the hacienda, looking southerly up the gorge
through which the Alamitos flows.
Exhibit No. 4, Landscape View, taken from the same point as No.
3, and looking northerly down the gorge through which the Alamitos
flows.
Exhibit No. 5, Landscape View, taken from the east bank of the
Alamitos, half a mile above the hacienda, looking up the gorge.
Exhibit No. 6, Landscape View, taken from the south bank of the
Arroyo Seco, a short distance above the junction of the two creeks,
looking southwesterly.
Page 69 U. S. 678
On this long case the following questions, in effect, now came
up for discussion:
1. Did any appeal lie from the "Survey Act?"
2. If so, had the United States, which filed no objections to
the survey as made by the Surveyor General, nor took any appeal
below, a right to ask here for a reversal or any modification of
the decree?
3. After the two decrees of the district court itself and the
two decisions made in this Court, was the matter of this eastern
line open below for such action as was taken on it by the district
court the last time?
4. As an original case and on its merits, what and where were
the true east and south boundaries of the tract, the west being
settled, and the north run for quantity?
Page 69 U. S. 704
MR. JUSTICE NELSON delivered the opinion of the Court.
This case has already been twice before the court. [
Footnote 21] It was very ably and
elaborately argued at the bar on both occasions, and fully
considered by the Court. There is very little, if anything, left
that is new to be considered or decided upon the present
argument.
The main question in contestation in the two preceding
arguments, and which has again been ably and elaborately presented,
is that involved in the settlement of the southern boundary of the
grant, whether or not the foot of the Sierra, the mountain range,
or the
Lomas Bajas, a range of low hills north of it,
constituted this southern boundary. The Board
Page 69 U. S. 705
of Commissioners adopted the Sierra, and its decree, in this
respect, was confirmed by the district court. On an appeal to this
Court, the same line was fully recognized.
The court, after referring to the lines of the grant to Larios,
and to the Sierra, as described in the grant to Berreyesa, the west
line of which was a line in common between the two ranches, as
agreed upon between the parties previous to the issue of either
grant by the Governor, said,
"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 quantity, as expressed in the third
condition."
The decree of the district court was reversed for the reason
that it confirmed to the claimant a larger quantity of land than
was embraced in the grant, and the cause was remitted to that court
to enter a decree in conformity with the opinion. As it became
necessary to remand the cause for the purpose of locating upon the
ground the quantity as limited by the above decision, authority was
given to the district court to fix the boundaries from the evidence
on file and such other evidence as might be produced before it. On
filing the mandate in the district court, the counsel for the
United States applied for liberty to furnish further evidence,
which application was granted. Several witnesses were examined
accordingly, their testimony relating chiefly to the southern
boundary of the tract, as described in the grant. The court had
suspended the entry of the decree, in pursuance of the mandate,
until after this evidence was furnished. The decree was filed and
entered October 18, 1858. It reaffirmed the Sierra, or mountain
range, as the southern boundary, and directed the line to be so
drawn as to include the bottom and low lands along the base of this
Sierra, and declared the eastern line to be a straight line
commencing at the junction of the Arroyo Seco and the Arroyo de
Alamitos, and thence
Page 69 U. S. 706
running southward to the aforesaid Sierra, or mountain range,
passing by the eastern point of the small hill situated in the
center of the canada, which was designated in the grants to Larios
and Berreyesa, being the same line agreed upon between them as a
division line, and which is delineated by a dotted line on the
diseno or map in the expediente of Berreyesa. It declares also the
western boundary to be the Arroyo Seco, which is the continuation
of a stream known as the Arroyo Capitancillos, and the northern
boundary to be a line or lines 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, in such
manner that, between the northern, southern, eastern, and western
lines, there shall be contained one league of land, and no
more.
The decree then fixes the western line of Fossat, which is a
line between him and the Guadalupe Mining Company, that owns
one-fourth of the league granted to Larios, and confirms to Fossat
the remaining three-fourths within the lines above declared.
This decree was appealed from by the United States to this
Court. [
Footnote 22] The
court dismissed the appeal as prematurely brought, the decree below
not being a final decree.
In the opinion dismissing the appeal, it is said, after
referring to the case when previously before us, [
Footnote 23]
"The court had determined that the 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,
and adds, the district court, in conformity with the directions of
the decree, declared the external lines on three sides of the tract
claimed, leaving the other line to be completed by a survey to be
made. From the decree in this form the United States has
appealed."
The court then answers the objections taken to the motion
Page 69 U. S. 707
to dismiss, which were that the inquiries and decrees of the
Board of Land Commissioners and of the district court could relate
only to the question of the validity of the claim, and not to
questions of location, extent, and boundary, and that the district
court had gone in its decree to the full limit of its jurisdiction.
These objections, after a full consideration of the acts of
Congress, of adjudged cases, and of the principles upon which the
court was bound to proceed, were overruled, and the court observe
that, in addition to the questions upon the validity 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, and that in affirming a claim to land under
the Spanish or Mexican grants to be valid within the law of
nations, the stipulations of the Treaty of Guadalupe Hidalgo and
the usages of these governments, we imply something more than that
certain papers are genuine, legal, and translative of property. We
affirm ownership and possession of land of definite boundaries
rightfully attach to the grantee. And in closing the opinion, it is
observed that,
"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 will be seen from this opinion, that the reasons for the
conclusion that the decree of the district court was not a final
one were that the land granted had not been located on the ground
by fixed and definite boundaries. A survey of the tract was
indispensable in order to locate the northern boundary. That
boundary was not given in the descriptive calls of the grant, and
depended upon the limitation of the quantity; and until the survey
of the three lines given -- namely the eastern, southern, and
western, and the three-fourths of a league of land located within
them -- the northern
Page 69 U. S. 708
boundary could not be ascertained or fixed. The location of this
line was an essential step to be taken on the part of the district
court in fulfillment of the duty enjoined by the mandate of this
Court. In the interpretation of that mandate, this Court, in its
opinion, [
Footnote 24]
observes,
"The district court, in conformity with the directions of the
decree, declared the external lines on three sides of the tract
claimed, leaving the other line to be completed by a survey to be
made."
That had not been done.
On the filing of the mandate of dismissal of the appeal in the
district court, an order was made directing the Surveyor General to
proceed and survey the land confirmed in conformity with the decree
as entered in that court, and which, as we have seen, was entered
on the 18th October, 1858. That survey was made and is found in the
record. It was approved by the Surveyor General 18 December, 1860,
and filed in the court below 22 January, 1861. We have also the
testimony of Hays, the deputy surveyor, who surveyed the lines on
the ground, and constructed the map; also of Conway, a clerk in the
office, who assisted him, and of Mandeville, the Surveyor General,
who approved of the map, showing that the survey and map were made
in strict conformity with the boundaries of the tract as given in
the decree, of which they had a copy, and followed as their
guide.
This survey having been made in conformity with the decree of
the district court, entered in pursuance of our mandate, would,
doubtless, have closed this controversy, had it not been for the
act of Congress passed 14 June, 1860, after the entry of the decree
in the district court, but before the survey of the tract by the
Surveyor General. The act purports to be an act to regulate the
jurisdiction of the district courts of the United States in
California, in regard to the survey and location of confirmed
private land claims. It authorizes the court to allow intervenors,
not parties to the record, to appear and contest the survey, or in
the words
Page 69 U. S. 709
of the act, "to show the true and proper location of the claim,"
and for that purpose to produce evidence before the court, and
directs that, "on the proofs and allegations, the court shall
render judgment thereon." Any party dissatisfied with the decision
may appeal to this Court within the period of six months.
Under this act, several parties intervened, and much testimony
was furnished to the court in relation to the survey and location
of the tract by the Surveyor General, and which is found in the
record, embracing some two hundred and twenty pages. And on the
16th November, 1861, the court entered an order reforming the
survey, as to the eastern line. Instead of adopting the eastern
line of the survey, which had been located as directed in its
decree, and which was a straight line from the point of beginning
to the termination at the Sierra (the southern boundary), passing
by the eastern point or base of the low hill in the center of the
canada, the court directed that, from the base of the low hill, the
line south should be deflected fifty-five degrees west, until it
reached a given point or object, and from thence south thirty-four
degrees west till it reached the Sierra, or mountain range. Instead
of a straight line for the eastern boundary, three lines were
directed to be run, at considerable angles to each other, between
the starting point and the termination. This direction of the court
not only reformed the survey of the tract as made by the Surveyor
General, but reformed the decree itself of the court, entered on
the 18th October, 1858, in pursuance of which the survey had been
made. The court assumed that the survey and location of the tract
was not to be governed by the decree, but, on the contrary, that it
was open to the court to revise, alter, and change it at
discretion, and to require the Surveyor General to conform his
survey and location to any new or amended decree, for certainly if
it was competent to change this eastern line from that settled in
the decree, it was equally competent for it to change every other
line or boundary as there described and fixed.
Now it must be remembered, that this decree of the district
Page 69 U. S. 710
court designating with great exactness this eastern line, with
such exactness that the Surveyor General had no difficulty in its
location, was entered in pursuance of and in accordance with the
mandate of this Court, and by which that court was instructed at
the time of the dismissal of the appeal, that the three external
lines declared in it were in conformity with the opinion of this
Court, and that the other line -- the north line -- only, remained
to be completed by a survey to be made, and that this line was to
be governed by quantity, which quantity had been previously
determined.
This radical change, therefore, of the eastern line of the tract
involves something more than a change by the court of its own
decree; it is the change of a decree entered in conformity with the
mandate of this Court. But we do not intend to place any particular
stress upon this view, for we hold that it is not competent for the
court to depart from its own decree in the exercise of the power
conferred by the act of the 14th June, 1860. The duty enjoined is
not a rehearing of the decree on its merits; it is not execute it,
to fix the lines on the ground in conformity with the decree
entered in the case. The decree is not only the foundation of the
validity of the grant, but of the proceedings in the survey and
location of land confirmed. But independently of this view, which
we regard as conclusive, and even if the question was an open one,
this alternation is wholly unsustainable. Indeed, the learned
counsel for the appellees did not undertake to sustain it on the
argument. The fact was admitted that the line was a straight one
between the two termini.
An attempt, however, was made to sustain the termination of the
line at the same point on the Sierra, or southern boundary,
consistent with the line being run straight from the point of
starting. This is sought to be accomplished by disregarding one of
the descriptive calls in the line, a natural object, namely, the
eastern base of the low hill, an object which must have been
visible to the eyes of both Larios and Berreyesa at the time they
agreed upon the settlement of the line as their common boundary.
But even this departure from the grant will not answer the purpose.
There is
Page 69 U. S. 711
still the difficulty of getting at the point of termination at
the foot of the Sierra. That point or corner must first be
ascertained before a straight line can be extended to it from the
junction of the two creeks, the starting-point. The only
description in the grant by which this point of termination can be
ascertained is by running a line from the junction of the two
creeks past the eastern base of the low hill southward to the
Sierra. It is the extension of this line in the manner described by
which this corner on the Sierra is reached and identified. Anyone
seeking to ascertain it without the use of these means will find
himself without compass or guide.
Now this corner the learned counsel for the appellees propose to
fix arbitrarily or by conjecture, and then by drawing a line from
the junction of the two creeks to it, a straight line is obtained,
and by this process of ascertaining the corner at the Sierra it is
made easy to select the one reached by the crooked line of the
court below. But then the line, as is admitted, instead of passing
by the eastern base of the low hill, would cut it not far from or
even west of its center.
The court below, as is apparent, yielded to this argument so far
as respected the arbitrary selection of the corner at the Sierra,
but refused to depart from the call in the line for the eastern
point of the low hill. Hence, the crooked line between that point
and the termination. The crooked line has the advantage over the
straight one of the learned counsel, as it observes one of the
principal calls in the grant. Theirs observes none of them except
the starting point.
There are two objections to this view, either of which is
fatal.
The first, the point selected at the foot of the Sierra for a
corner, is arbitrary and conjectural, and in contradiction to the
clear description in the grant. And second, it disregards one of
the principal and most controlling calls in it, the eastern base of
the low hill.
Our conclusion upon this branch of the case is first that the
court erred in departing from the eastern boundary, as
Page 69 U. S. 712
specifically described and fixed in the decree of the 18th
October, 1858. And second, that irrespective of that decree, the
line in the survey and location approved by the Surveyor General,
18 December, 1860, is the true eastern line of the land
confirmed.
The only party that appealed from this order or decree of the
district court, in respect to the survey and location, as appears
from the record, is the present claimant. He insists upon the
correctness of the first survey by the Surveyor General, and that
the alteration by the court of the eastern line, and consequently
of the other lines made necessary by this change, are
erroneous.
The United States did not appeal. It is, however, a party to the
record as appellees, and appeared by counsel on the argument in
this Court, and took objections to the survey and location, mainly
on the ground that the proceedings under the act of 1860 were not
judicial, but purely executive and ministerial, and as a
consequence that the appeal from the order or decree of the
district court, regulating the survey and location, ought not to be
entertained; that the courts could only determine the validity of
the grant, leaving its survey and location to the Executive
Department of the government. In other words, that the act of 1860
was unconstitutional and void. We need only refer to the opinion of
this Court in the present case the second time it was before us as
presenting a conclusive refutation of these several positions. The
fundamental error in the argument is in assuming that the survey
and location of the land confirmed are not proceedings under the
control of the court rendering the decree, and hence not a part of
the judicial action of the court. These proceedings are simply in
execution of the decree, which execution is as much the duty of the
court, and as much within its competency, as the hearing of the
cause and the rendition of its judgment; as much so as the
execution of any other judgment or decree rendered by the
court.
This power has been exercised by the Court ever since the
Page 69 U. S. 713
Spanish and French land claims were placed under its
jurisdiction, as may be seen by the cases referred to in the
opinion of the Court in this case when last before us, [
Footnote 25] and in many others to
be found in the reports. The powers of the Surveyor General under
these acts were as extensive and as well defined as under the act
of 1851. The act of 1860 did not enlarge or in any way affect his
powers. They remained the same as before.
The first Act of Congress, March 2, 1805, [
Footnote 26] amended March 3, 1806, establishing
a Board of Commissioners to settle private French and Spanish land
claims under the Louisiana Treaty, provided for a survey of the
confirmed tract by the Surveyor General, under the direction of the
commissioners.
And the Act of 26 March, 1824, the first act which placed these
land claims under the jurisdiction of the United States district
courts, provided that a copy of the decree of the confirmed claim
should be delivered to the Surveyor General, and that he should
cause the land specified in the decree to be surveyed, and which
survey, being presented to the Commissioner of the Land Office by
the claimant, entitled him to a patent. Under this act and other
similar acts, the cases referred to in 21 Howard arose, and in
which this Court entertained appeals from decrees in the district
courts upon the survey and location of confirmed claims. The 13th
section of the act of 1851 corresponds substantially with the above
provision of the act of 1824. It makes it the duty of the Surveyor
General to cause all confirmed claims to be accurately surveyed,
and provides that the claimant, on presenting a copy of the decree
of confirmation and a plat of survey to the General Land Office, a
patent shall issue. It also confers upon this officer the powers of
the registers and receivers, under the 5th section of the act of
March 3, 1831, [
Footnote 27]
which relates simply to the case of interfering confirmed
claims.
Page 69 U. S. 714
The duty of the Surveyor General, under all these acts, is to
survey and locate the confirmed tract, in conformity with the
decree. It is the only guide which is furnished to him; and one of
the first instructions from the Land Office is as follows:
"In the survey of finally confirmed claims you must be strictly
governed by the decree of confirmation; and when the terms of such
decree are specific, they must be exactly observed in fixing the
locality of and surveying the claim."
This instruction was given under the act of 1851, and in
relation to the private land claims of California, and it was in
accordance with this instruction that the survey of the present
claim was made and approved by the Surveyor General 20 December,
1860, and filed in the court below 22 January following, and which
was reformed by the court by the alteration of the eastern line, as
already explained. Those who are desirous of putting the Land
Office above the decrees of the courts should at least be satisfied
with this instruction of the department, if not with the
decrees.
It has been argued that the lines of the tract as given in the
grant were outboundaries, like the case of Fremont and others which
have been before the Court, and embraced a larger area of land than
the one square league, and that the survey and location should not
have been controlled by these lines as specific boundaries.
The first answer to this objection is, admitting it to be true,
it can have no influence upon the judgment to be given by this
Court. These lines have been adjudicated and settled and
incorporated in the decree of the district court, and which decree
was entered in pursuance of the mandate of this Court, and no
appeal has been taken from that decree. It is said, however, that
the decree was not in conformity with the mandate. If so, the party
aggrieved should have appealed, and this Court would have corrected
the error. This is common learning, and needs no authority.
The error, it would seem, was not discovered until the survey;
but this affords no reason for violating established law. The more
natural conclusion, we think, is that the
Page 69 U. S. 715
omission to appeal was the result of a conviction the decree was
right. It was entered after much testimony taken in respect to it
and full argument on behalf of the very parties who now set up this
pretext.
The second answer to the objection is that the lines in the
grant are not outboundaries in the sense of the cases referred
to.
This Court said when the case was first before it,
"The southern, western, and eastern boundaries of the land
granted to Larios are well defined, and the objects exist by which
these 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 furnishes no other criterion for determining that boundary
than the limitation of the quantity as expressed in the third
condition."
And the same opinion is substantially expressed by the Court
when before it the second time. The Court said:
"The district court, in conformity with the directions of the
decree, declared the external lines on three sides of the tract
claimed, leaving the other line to be completed by a survey to be
made."
It should be remembered this was said of the decree now in
question, which was then before the Court. The observations were
made in express reference to it.
But, independently of this and looking at the question as an
original one, there can be no reasonable doubt about it. The
eastern line was in dispute between the two adjoining rancheros
(Larios and Berreyesa), and which was carried before the public
authorities for settlement, and there finally adjusted by the
agreement of the parties. A line could hardly be made more
specific. A boundary settled and fixed after litigation by the
adjoining owners. The western boundary is a well known natural
object, the Arroyo Seco -- a creek; the southern, the Sierra, or
mountain range; and no boundary on the north. The grant was of
quantity, and of necessity this boundary must be determined by the
limitation of that quantity between the lines given.
Page 69 U. S. 716
It is true, in the second condition of the grant it is said the
judge who shall give possession of the land shall have it measured
in conformity to law, leaving the
sobrante, the surplus,
to the nation. But this is a formal condition, to be found, for
abundant caution, in every Mexican grant. There is no
sobrante here, nor could the judge have measured the grant
according to the law or ordinance in a way to have any. Aside,
therefore, from the lines being fixed and specific according to the
opinion of this Court, and of the decree of the court below in
pursuance of it, there could be no reasonable doubt upon the
question if an original one.
Much has been said on the argument in respect to the first
locations and residences of the claimants on the low lands outside
of this northern boundary, and as to the duty of the court to so
locate this boundary as to include these possessions. But the
answer to these suggestions is obvious. At the time these claimants
took possession of the tract, they supposed they were entitled to a
larger quantity of land than one league -- nearly two leagues --
which would have carried this line over and beyond these
possessions. But this Court cut down the quantity to one league,
and hence these possessions are, with the exception of the old
house of Larios, necessarily excluded. It is also said that sales
were made to third persons in the valley outside of the line, and
that their title should be protected. But they are not complaining
of the survey or location as made in pursuance of the decree. Some
of them appeared before the district court, and filed objections to
it, but have since withdrawn and abandoned them. We do not refer to
these objections as entitled to any particular weight or
importance, but because the explanations are at hand, for we place
the decision of the case upon the ground that the boundaries of the
tract have been settled by the final decree of a court of competent
jurisdiction, and until that decision is got rid of, there is an
end of the controversy.
Our conclusion is that the order or decree of the court below,
of the 16th November, 1861, which set aside the survey
Page 69 U. S. 717
of the tract approved by the Surveyor General, 18 December,
1860, and which order or decree was directed to be filed
nunc
pro tunc, as of the 31st October, 1861, and, also, the order
or decree of the 16th November, 1861, confirming the new survey,
which was filed in court by the Surveyor General on 11th of that
month, be reversed and annulled, and that the cause be remitted to
the court below with directions to that court to enter a decree
confirming the survey of the Surveyor General, approved 18
December, 1860, and filed in court 22 January following.
The only objection that can be made to this survey is that the
tract is not located in a compact body. A comparatively small strip
or tongue of land is extended from the main body along the eastern
line north to the junction of the two creeks, with a view to reach
the starting point of the description in the grant. This was
unnecessary, as we have seen, for the cutting down of the quantity
to a league necessarily carried the north line further south than
originally supposed. This northern line might have been closed with
the eastern direct instead of adopting the divergence north to the
junction of the two creeks. But the quantity of land embraced in
this strip is unimportant, is of no interest to anyone except the
government, and scarcely any to it, as, if corrected, an equal
quantity must be taken to make out the quantity in the grant from
some other part of the public lands. Besides, the government has
not appealed.
To remit the case with directions that a new survey be made in
conformity with the decree, and for the purpose of correcting this
small error, would occasion delay and expense, and benefit no
one.
The truth is, since the determination that the southern boundary
of the tract was the Sierra, and not the Lomas Bajas, and that the
eastern was a straight line, its direction southward to be
controlled by the eastern base of the low hills, there is nothing
left of this controversy worth contending for -- scarcely merit
enough to make it respectable.
Decree reversed and the cause remitted, with
directions
Page 69 U. S. 718
to enter a decree confirming the survey approved by Surveyor
General, 18 December, 1860.
[
Footnote 1]
According to Mexican traditions, the valley was occupied in
early days by two Indians of very diminutive stature, whose
bravery, however, was so noted that each was the chief of his
tribe. The name of "Little Captains," came from them.
[
Footnote 2]
The reader must be particular to note that both on this map and
on the two more rough topographical sketches given in the case, the
ordinary rule of position in regard to maps is reversed. The top of
the map as the reader looks at it, or in the cases of the disenos
at pp. <|69 U.S. 654|>654, <|69 U.S. 656|>656, as he
turns the book round to read what is on them, is the south; the
bottom north; the right the west, and the left the east. The two
rough Mexican disenos were thus originally made, and conforming
other maps to them has been found more convenient than to adopt the
more usual method. The compass on the sketch at p. <|69 U.S.
654|>654 shows the thing.
[
Footnote 3]
The portion
between these two ranges, marked on the map
"Ridge," must be distinguished both from the Azul and the Mining
Ridge or Range.
It, as stated directly, is a low,
connecting ridge.
[
Footnote 4]
The meaning is a dry creek, this sort of
arroyo being
common in a country of hills and plains, sometimes filled with
water from the mountains and sometimes a mere stony bed or "gulch."
In this case we have two
arroyo secos, one of them,
however, always designated as the "
arroyo seco on the side
of Santa Clara."
[
Footnote 5]
Marked F. on the map at p. <|69 U.S. 651|>651.
[
Footnote 6]
Called indifferently
"loma" and
"lomita."
[
Footnote 7]
The diseno of Berreyesa is a very good one; better than
forty-nine in fifty of the Mexican disenos. That of Larios is less
good, and justifies the title of "daub" given by Grier, J.,
supra, p. <|69 U.S. 448|>448, to Mexican disenos in
general. The arroyo, or stream called Alamitos, on the map, at p.
<|69 U.S. 651|>651, is on this called Capitancillos, as
indeed it sometimes was; and the Arroyo Seco, on the side of Santa
Clara, called simply "Arroyo Seco," is made the west boundary.
[
Footnote 8]
Slaughterhouse.
[
Footnote 9]
The diseno is
supra at page <|69 U.S.
654|>654.
[
Footnote 10]
The quarter of a league conveyed to the company, is indicated on
the map at page <|69 U.S. 651|>651, in shade.
[
Footnote 11]
61 U. S. 20 How.
413.
[
Footnote 12]
About a league and three quarters -- REP.
[
Footnote 13]
Given on page <|69 U.S. 655|>655.
[
Footnote 14]
62 U. S. 21 How.
445.
[
Footnote 15]
12 Stat. at Large 33.
[
Footnote 16]
The plural would be
Sierra de los Encinos.
[
Footnote 17]
On Berreyesa's diseno, as the reader will see, these hills
marked as "Lomas Bajas, para la parte del plan del Pueblo." On that
of Larios they are styled simply "L-o-m-a-s B-a-j-a-s."
[
Footnote 18]
From the necessity of getting the whole of both disenos in the
page, and so of making the scale of Berreyesa small enough to let
in the "Sierra Azul," this thing is not so well shown by the two
disenos given to the reader. The scale of Berreyesa's is the
smaller.
[
Footnote 19]
Mount Umunhum is 3,440 feet above the sea; Mount Bache, 3,780
feet, or 350 feet more. The position of Mount Bache is not, from
want of space, accurately indicated on the map at p. <|69 U.S.
651|>651. It is sufficiently so, however, to explain things. In
nature it stood more to the east and south.
[
Footnote 20]
Mount Bache, as Mr. Lewis supposed, was meant to be designated
by the elevation over the letter C in "Cierra," Mount Umunhum being
at the right of the same ridge, and the Mine Peak being over the
letter L in "Lomas Bajas."
[
Footnote 21]
United States v.
Fossat, 20 How. 413;
Same v.
Same, 21 How. 445.
[
Footnote 22]
United States v.
Fossat, 21 How. 445
[
Footnote 23]
Reported
61 U. S. 20 How.
413
[
Footnote 24]
62 U. S. 21
How. 447.
[
Footnote 25]
65 U. S. 21
How. 445.
[
Footnote 26]
2 Stat. at Large p. 441; §§ 6, 7.
[
Footnote 27]
4 Stat. at Large 494.
MR. JUSTICE CLIFFORD dissenting.
I concur in the opinion that the true division line between the
rancho of Justo Larios and that of Jose Reyes Berreyesa is a
straight line, and consequently that the decree in question should
be reversed, but I dissent altogether from the directions given to
the court below and from the reasons assigned in support of those
directions. Some brief reference to the title papers and to the
facts and circumstances of the case is indispensable in order to a
clear understanding of the nature of the controversy and of the
grounds of my dissent from the views expressed in the opinion
pronounced in behalf of a majority of the Court.
I. Appellant, in his original petition to the commissioners
appointed under the act of the 3d of March, 1851, prayed for the
confirmation of his title to an undivided interest of three-fourths
in a certain tract of land lying in the County of Santa Clara, in
the State of California, and known as the Canada de los
Capitancillos, which, as he alleged, was contained within certain
natural boundaries. When he presented the petition, he filed with
it copies of the expediente and of the original grant under which
he claimed, and his representation was that he held the title to
the tract through certain mesne conveyances therein mentioned and
described. Referring to the expediente, it will be seen that it
consists of the petition of Justo Larios, the original donee of the
tract, addressed to the Governor, together with the diseno and the
usual marginal decree and the concession or vista la peticion and
the titulo or original grant. Provisional grant of the land it
seems had been made at some early period by the Ayuntamiento of the
Pueblo of San Jose Guadalupe to one Leandro Galindo, who built a
house on the premises and lived there for many years prior to the
grant of Justo Larios, or to any application by him for the same.
House of the occupant was north of the highway and pretty close to
the southern base of the Pueblo Hills. Original
Page 69 U. S. 719
claimant, Justo Larios, in his petition to the Governor, dated
at Monterey, on the sixteenth day of June, 1842, represented that
he had purchased from the owner of the house all the right he had
to the land by virtue of that provisional concession. Such
provisional concessions, it is known, were often made, and that it
frequently became necessary for a subsequent applicant for a grant
of the same tract to purchase the improvements made by the occupant
as a means of facilitating his own application. Petitioner
describes the tract as a place known by the name of the Canada de
los Capitancillos, and states that the limits of said tract are
from the boundaries of Santa Clara to the corral, called the corral
of the deceased Macario. Decree of concession recites that Justo
Larios is the owner in full property of a part of the land called
Canada de los Capitancillos, bounded by the Sierra, by the Arroyo
Seco, on the side of Santa Clara, and by the rancho of the citizen
Jose Reyes Berreyesa, which has for boundary a line commencing at
the angle formed by the junction of the Arroyo Seco and the Arroyo
de los Alamitos, thence southward to the Sierra, passing the
eastern base of the small hill situated in the center of the
canada.
II. Attention to the description given of the canada, as
contained in the concession, will show, especially when it is taken
in connection with the language of the petition, that all of the
boundaries of that part not previously granted are either expressly
given or so clearly indicated as to amount to the same thing, and
to leave no room for doubt as to the intention of the granting
power. All will agree, I suppose, that the course of the Arroyo
Seco, on the side of the church property called Santa Clara, was
well known. Properties of that description were usually well
defined, and there is not the slightest pretense of evidence in the
case to show that this line was ever in dispute. West line of the
tract is therefore fixed beyond peradventure. East line of it, as
agreed on all sides, is the west line of the rancho of Jose Reyes
Berreyesa. Controversy arose at one time between the original
proprietors of those ranchos as to that division line,
Page 69 U. S. 720
but it was duly settled by competent authority. Nothing need be
added upon that subject, as I agree that the line should be a
straight one, as assumed in the opinion of the Court; but I insist
that it commences at the angle formed by the junction of the Arroyo
Seco and the Arroyo de los Alamitos, and runs south to the Sierra,
wherever that may be. Beginning is at the angle formed by the
junction of those two Arroyos, and that angle, as all must agree,
is north of the house built by Leandro Galindo, and close to the
base of the Pueblo Hills, on the northern side of the canada.
Larios purchased that house and the adjacent improvements, and was
living in the house when he presented his petition to the Governor
and when the grant was made. He asked for the valley, alleging that
he had occupied it "since the year 1836," and it was part of the
valley which was granted to him, as will presently more fully
appear. Rancho of Jose Reyes Berreyesa lies east of this tract, and
of course the west line of that rancho is the east line of the
claim under consideration. Grant to Jose Reyes Berroyesa is the
elder grant, and as the tract in question is bounded on that
rancho, it is both proper and necessary to refer to the title
papers in that case and to look at the actual location of that
grant upon the land to aid in the solution of the present
controversy. Grantee, in that case, became possessed of a part of
the same canada or valley, in the year 1834, under a grant from
Governor Figueroa, and he continued to occupy it with his family
until 1842, and perhaps later. During that year, he complained to
the Governor that his neighbor, Justo Larios, had disturbed his
possessions, and prayed that there might be granted to him two
sitios of the valley, extending from the house of Justo Larios to
the matadero or slaughterhouse, erected by him at the easterly end
of the valley, "with all the hills that belong to the canada."
Commissioners confirmed his claim for one league, and on appeal the
decree was confirmed by the district court. Appeal was thereupon
taken to this Court, and this Court held that the concession and
titulo described a parcel of land included within natural
boundaries, but that the conditions of the grant confined
Page 69 U. S. 721
it to a single league in quantity, and affirmed the decree of
the district court, ordering
"the land to be located according to the description, and
within the boundaries set out in the original grant, and
delineated on the map contained in the expediente. [
Footnote 2/1]"
III. All or nearly all the improvements made by the claimant in
that case also were north of the
camino or highway, and
close to the Pueblo Hills on the northern side of the valley. He
built two houses, and they were and are both situated nearly as far
north as the angle formed by the junction of the before-mentioned
arroyos. Northern boundary of the canada, therefore, was evidently
understood by the grantees of both these ranchos to be what it is
in truth and faith -- the southern base of the Pueblo Hills.
Southern boundary of the canada is described as the Sierra, and
much effort is expended in the attempt to prove that by the word
"Sierra" is meant the Sierra Azul, or the main Sierra. Be that as
it may, still, in my view of the case, the opinion of the Court is
clearly founded in error.
But I deny that the canada, or valley, as described in the title
papers, and as understood either by the respective petitioners or
by the granting power, extended southwardly beyond what are called
the Lomas Bajas, or low hills. Those hills, or certain portions of
them, are seventeen hundred feet above the level of the Bay of San
Francisco, and might well have been regarded by the petitioners and
the governor as the northern base of the main Sierra. Evidence
shows that there is no table land between those hills and the main
Sierra, which is called the Sierra Azul, and that they are only
separated from the higher range by a narrow, broken, irregular
gorge, which forms the bed of the Arroyo de los Capitancillos,
through which tumble the waters of that stream on their way from
their source in the highlands to the southern skirt of the valley
below, which takes its name from the name of the arroyo by which it
is watered. Party then interested asked for the
sobrante
of the canada lying
Page 69 U. S. 722
between the Arroyo Seco, on the side of Santa Clara, and the
rancho of Jose Reyes Berreyesa; but the Governor refused to make
the grant in that form, but limited it to one
sitio de ganada
mayor, or to one league of a larger size.
IV. Application was for the
sobrante of the canada, but
if the quantity of the table land was insufficient to meet the
requirement of the grant, then there would be some show of reason
for giving the document a more liberal interpretation, so as to
include within the boundaries the quantity granted. No such
difficulty, however, arises in the case, because, in any view taken
of the subject, the quantity included within the outboundaries is
more than double the quantity to which the claimant is
entitled.
Stripped of all side issues, therefore, the only question is
whether the grant which was for the lands of the valley shall be
located there or upon the mountain, which is the southern boundary
of the valley where the land lies for which the petitioner asked
when he made his application to the Governor.
V. Suppose it were otherwise, and that the main Sierra, or
Sierra Azul, is really the southern boundary of the valley, still I
maintain that the directions given to the court below to enter a
decree confirming the survey of the twentieth of December, 1860,
are plainly and clearly erroneous. Operation of those directions,
when they are carried into effect, will be to locate the principal
portion of the claim upon the
Lomas Bajas and to exclude
all the table lands except the narrow strip called in the opinion
of the Court a tongue, which is more than a mile in length and only
from twenty to thirty rods in width, and borders on the west line
of the adjacent rancho. Survey apparently was commenced at the main
Sierra on the line of the rancho of Jose Reyes Berreyesa, and runs
northwardly no that line entirely across the valley to the angle
formed by the junction of the Arroyo Seco and the Arroyo de los
Alamitos, whereas it should have been commenced at the angle formed
by those two arroyos, and run south for quantity, so as to have
included the valley for which the petitioner asked when he applied
to the governor
Page 69 U. S. 723
for the grant. Having determined to commence south and run north
for quantity, it became necessary to make that narrow strip or
tongue, else one of two things would follow which must be avoided.
Either the tract would not include the house of the claimant or it
would exceed the quantity of one league if it included the
quicksilver mine. Apparently it was a
sine qua non that it
should include the mine, and it was doubtless thought desirable
that it should also include the house of the claimant, because it
must have been known that the usages and customs of the country
required it in the location of such grants.
Besides, the recital of the concession is that the rancho of
Jose Reyes Berreyesa has for boundary a line commencing at the
angle of the two arroyos before mentioned, and it may be that it
was thought proper to have some regard to that recital. But it
would not do to take more than a narrow strip of the valley,
because if more was taken, either the mine must be excluded or the
quantity would be too great, and hence all the residue of the table
lands must be excluded. Boundaries in the grant are the same as
those given in the concession, and consequently are subject to the
same observations. Second condition of the grant is that the donee
shall solicit the proper judge to give him juridical possession in
virtue of the decree, by whom
the boundaries shall be measured
out, and he shall put on the boundaries, in addition to the
landmarks, some fruit trees or useful forest trees. Third condition
describes the land as one league of the larger size, and the
requirement is that the judge who shall give the possession shall
have the land measured in conformity to law, leaving the surplus
which remained to the nation. Land commissioners confirmed the
claim for one league, but on appeal taken by the claimant to the
district court that decree was reversed and a decree entered
confirming the claim as one for the whole tract with specific
boundaries. Whereupon an appeal was taken to this Court, and this
Court reversed that decree and decided that the claim was for one
league of land, to be taken within the southern, western, and
eastern boundaries designated therein,
Page 69 U. S. 724
and which was 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 the government. Plainly this Court then decided that
the grant in this case was not one by specific boundaries, but was
a grant by quantity, to-wit, for one league of land. And the Court
went on to say that the external boundaries designated in the grant
may be declared by the district court from the evidence on file,
and from 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. Nothing can be plainer, I think, than
the fact that it was the outboundaries of the canada that this
Court authorized the district court to declare. Decree of the
district court then under revision declared the grant to be one of
specific boundaries, and assumed to fix them, but this Court
reversed that decree and declared that the grant was not one of
specific boundaries, but a grant for one league of land, and
expressly declared that it was to be taken within the three
boundaries named, and was 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 the government. [
Footnote 2/2]
VI. Where there are no guides in the title papers and the
claimant has made no improvement nor done any act, as by sale of a
part or otherwise, to influence the decision as to the location,
the regulations of the Executive Department, as a general rule,
allow the claimant an election as to the location within the
external or outboundaries of the tract or place described within
the grant, subject to the qualification that he must take the land
in a compact form, and as far as practicable leave the residue in
the same condition. But where the title papers furnish a guide or
where he has built a house or made other improvements on the claim,
or where he has sold a part of his claim, very different rules
Page 69 U. S. 725
prevail. Locations under such circumstances are made to conform
as near as may be to the intent of the granting power as indicated
in the title papers -- always, however, subject to the
qualification that it must include the improvements of the
claimant, and, as far as is consistent with the public interest, be
made to conform to the parts conveyed, so that the location may be
in one body, and leave the public lands in the same condition.
Reference undoubtedly was made by the court to these rules, when it
is said that the location must be made under the restrictions
established by the Executive Department of the government. These
suggestions are sufficient, I think, to demonstrate beyond cavil
that the boundaries mentioned in the opinion of the court in that
case were the external boundaries, and that it was those boundaries
which were to be fixed by the district court, and not the specific
boundaries of the claim, else there would have been nothing to
which the restrictions established by the Executive Department of
the government could be applied. Taking this view of the opinion in
that case, it is clear and consistent, and if it had been followed,
the case would have been free from all embarrassment. Grant of
claimant was declared to be a grant by quantity, to be located
within certain outboundaries, three of which were already
ascertained, and it was left to the district court to ascertain the
fourth from the evidence on file and such other evidence as might
be taken by the parties, but the survey and location were to be
made under the rules and regulations of the land department.
Mandate of this Court was that the decree of the district court
should be reversed and that the cause be remanded with directions
to enter a decree in the case in conformity to the opinion of this
Court. Opinion of this Court was, as before stated, that an
interest equal to three-fourths of the land granted should be
confirmed to the claimant, and that the district court should
ascertain the northern boundary of the canada, and when that was
done that the land department should make the survey and location.
Cause was remanded, but the district court, instead of following
the mandate of this Court, on the
Page 69 U. S. 726
eighteenth of October, 1858, entered a decree defining the
specific boundaries of the claim.
VII. Appeal was taken to this Court by the United States, but
this Court dismissed the appeal, holding that it was improvidently
taken, and remanded the case for further proceedings to be had
therein in conformity to the opinion of this Court. Decision, in
effect, was that this Court had no jurisdiction of the case, and
hence the opinion of the Court upon any matter connected with the
merits of the controversy can hardly be regarded as authority; but
it is not necessary to decide that point, as the Court in express
terms reaffirm what had been decided in the first case. Both
decisions of this Court in this case therefore show that the grant
is one by quantity, to be located within the boundaries of the
canada, and I entertain no manner of doubt that such is the true
construction of the grant. Such a claim should be surveyed and
located under the rules and regulations of the Executive
Department, whether it be made by the Land Office or by the courts.
Location as decided in the opinion of the court in this case will
be in violation of everyone of those rules and regulations, and
will also be diametrically opposed to the opinions of this Court in
the two cases to which reference has already been made. These
propositions, as it seems to me, are not refuted in the opinion
just pronounced, even if they are not impliedly admitted; but the
suggestion is that the district court, in the decree of the
eighteenth of October, 1858, decided that the grant was one with
specific boundaries and proceeded to fix them in the decree, and
that the decree then entered is in full force and unreversed, and
that inasmuch as the appeal taken by the United States was
dismissed and no new appeal was taken, the decree is binding on
this Court although it was contrary to the mandate of this Court
given in the same cause. Considering the peculiar nature of the
jurisdiction in this class of cases, I cannot admit that doctrine.
Proceedings in this class of cases are very different from the
proceedings in suits at common law. Where the grant is of a tract
by specific boundaries, there would be some force in the argument,
because in
Page 69 U. S. 727
that class of cases it is incumbent upon the court not only to
determine the question of confirmation but also, if it be decided
to confirm the claim, to determine the boundaries of the grant as a
part of the original adjudication.
VIII. Such, however, is not the rule, and never was where the
claim is what is called a floating claim, or where the grant is one
by quantity, to be located within certain outboundaries, embracing
a larger tract than the grant. All the courts have to do in such
cases is to decide the question of confirmation, and leave the
location to the Executive Department of the government. Attention,
however, is called to the Act of the fourteenth of June, 1860; but
the answer to that reference is that the provisions of that act
have nothing to do with the decree of the district court, entered
on the eighteenth of October, 1858, nearly two years before the act
was passed. Opinion of the Court undertakes to vindicate the
directions given in the cause, not upon the ground that the
provisions of that act apply in the case, but upon the ground that
the prior decree of the district court had the effect to determine
the controversy, and really that no further survey and location are
necessary. Questions of this magnitude cannot be evaded, and ought
not to be under any circumstances. Having given the subject all the
consideration in my power, I am of the opinion that all that part
of the decree of the district court, rendered on the eighteenth of
October, 1858, which attempts and professes to fix the boundaries
of the claim in this case, was
coram non judice, and
utterly void. Reluctant as I am to differ from the majority of the
Court on this occasion, still I have much satisfaction in reaching
that conclusion; because if twenty millions of property must pass
from the United States to those who have no pretense of title to
it, I am not willing to cast the blame of such a monstrous result
upon the office of the Attorney General, or to place my decision in
such a cause upon a mere technicality. Patient and thorough
investigation has convinced me that the title to the quicksilver
mine is in the United States, and it shall never pass into other
hands by my vote while that conviction
Page 69 U. S. 728
remains, although I may stand alone. If this great wrong must be
done, I would that it could have been done upon some other ground;
for it seems that, in the opinion of the Court, the case has been
pending six years since it was finally and conclusively decided,
which is an anomaly, perhaps, never before witnessed in a judicial
tribunal. In my view of the case, the decree of the court should be
reversed, and the cause remanded with directions to order a new
survey under the rules and regulations of the Executive Department
of the government.
[
Footnote 2/1]
United States v. Heirs of
Berreyesa, 23 How. 499.
[
Footnote 2/2]
United States v.
Fossat, 20 How. 427.
