1. Where a Mexican grant of land in California designates the
land granted by a particular name and specifies the quantity, but
does not give any boundaries, the grantee is entitled to the
quantity specified within the limits of his settlement and
possession, if that amount can be obtained without encroachment
upon the prior rights of adjoining proprietors.
2. When the evidence upon a boundary line, between two Mexican
grants, is conflicting and irreconcilable, this Court will not
interfere with the decision of the court below.
3. Parties not claiming under the United States, who are allowed
to intervene in proceedings of the district court to correct
surveys of Mexican land grants in California, under the Act of June
14, 1860, must claim under cessions of the former Mexican
government. The order of the district court, allowing a party thus
claiming to intervene, is it determination that he possesses such
interest derived from that government as to entitle him to contest
the survey, and objection to his intervention, on the ground that
he possesses no such interest, cannot be taken for the first time
in this Court.
4. The United States cannot object to the correctness of a
boundary line in an approved survey if they have not appealed from
the decree approving the survey.
This was an appeal from a decree of the District Court of
California, approving a survey of a confirmed Mexican land claim.
There were two grants issued by the Mexican government to the
claimant.
The original grant, issued in September, 1835, described the
land ceded as known by the name of Milpitas, and as being one
league in length, from north to south, and oneself a league in
width, from east to west, and being in extent equal to half a
square league, as shown by the accompanying map. The second grant,
issued in October following,
Page 75 U. S. 338
added a half league to the original quantity on the west, so as
to make the entire tract ceded a square league. The second of these
title papers, merely adding to the quantity originally granted, the
two are spoken of in the opinion, as constituting one concession or
grant.
Neither of the title papers gave any boundaries of the land, or
referred to any documents by which the boundaries could be
ascertained, except the map mentioned. This map was a rude and
imperfect sketch, indicating only the general locality of the land,
without fixing, with any precision, its exterior limits.
The decree of the district court upon the claim of the grantee
did not give the boundaries of the claim. It adjudged the claim to
be valid, to the extent and quantity of one square league, provided
that quantity be contained "within the boundaries called for in the
grants," and the map to which they referred; and if there were less
than that quantity, then the confirmation was to be restricted
accordingly. But no boundaries were, in fact, stated in the grants.
The decree also declared the tract confirmed to be the land "of
which the possession was proved to have been long enjoyed" by the
claimant. The proof here mentioned, only showed that the claimant
had been, for many years, in possession of some of the land granted
to him, without mentioning any boundaries of the land, or
indicating that any were established.
Three surveys of the claim were made by different surveyors, and
submitted to the district court for examination and approval, and
in relation to each of them, testimony was taken and counsel were
heard, either upon the intervention of the United States or of the
claimant or of adjoining proprietors.
The first two surveys were set aside, and the questions
presented arose upon the third survey. One Higuera owned a tract on
the north, and it appeared from the evidence that the boundary line
between him and Alviso, at one time in dispute, was settled and
fixed under the Mexican government. On the west, one White owned a
tract, as confirmee
Page 75 U. S. 339
of a grant known as Rincon de los Esteros, and a creek, known as
Penetencia Creek, was the boundary between him and Alviso. The
questions on this case related to the southern boundary of the
tract of the claimant, and upon this the evidence was conflicting
and irreconcilable. One Berrysea claimed the land on the south, and
he intervened in the proceedings upon the survey in the district
court, by leave of the court. In his petition for permission to
intervene, he alleged that he was the owner of the rancho on the
south of the claim of the claimant, as surveyed under title derived
from the Mexican government; that the Creek Milpitas was the
boundary between his rancho and the rancho confirmed to the
claimant, and that the survey of the claimant's claim included
about fifteen or eighteen hundred acres of land belonging to him.
There was no other evidence in the record that Berrysea had any
grant.
The appeal was by the claimant.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
In the case of
Higueras v. United States, [
Footnote 1] this Court speaks of
concessions or grants of public lands, made by Mexican governors,
as being of three kinds: 1st., grants by specific boundaries, where
the donee was entitled to the entire tract; 2d, grants by quantity,
as of one or more leagues of land situates in a larger tract,
described by outboundaries, where the donee was entitled only to
the quantity specified; and 3d., grants of a certain place or
rancho by some particular name, either with or without specific
boundaries, where the donee was entitled to the tract, according to
the boundaries, if given, and if not given, according to the limits
of the tract, as shown by the proofs of settlement and
possession.
The grant in the case before us, partakes of the two latter
classes. It is a grant by quantity, and the claimant is
entitled
Page 75 U. S. 340
to the amount specified, if that amount can be obtained without
encroachment upon the prior rights of adjoining proprietors. It is
also a grant of a certain place by name, and as the boundaries are
not given, its extent and limits must be shown by the settlement
and possession of the grantee.
The correctness of the ruling of the court in setting aside the
first survey is not questioned, and the appellant himself united
with adjoining proprietors in excepting to the second survey. The
testimony taken established, with sufficient distinctness, the
northern and western boundaries, as fixed by the third and approved
survey. It showed that the northern boundary, between Alviso and
Higueras -- at one time, a matter of dispute between them -- was
settled and fixed under the Mexican government, and that the
Penetencia Creek was the dividing line on the west, between Alviso
and White, the confirmee of the grant of Rincon de los Esteros.
But as to the southern boundary -- the boundary between Alviso
and Berrysea -- the testimony was conflicting and unsatisfactory.
Indeed, it is impossible to reconcile the different statements of
the witnesses as to the extent of the occupation of either party,
south of Milpitas Creek. Some of them testified that the possession
of Alviso extended far south of it, whilst others asserted that the
creek itself was recognized, both by him and Berrysea, as the
boundary between them. The contradictions are so flat that the
counsel of the appellant is forced to state that the mind is left
in uncertainty whether there was any exclusive occupation of the
land by either of the parties. Under these circumstances, there
being great doubt as to which side the weight of evidence inclines,
we should not be justified, under any rules governing our action
upon such cases, in interfering with the decision of the district
court.
The counsel of the appellant objects that there is no evidence
in the record that Berrysea had any grant, or if he had any, that
it was ever confirmed, and insists that no weight should therefore
be given to his possession against the claim of the appellant. This
objection cannot be made
Page 75 U. S. 341
for the first time in this Court. The right of Berrysea to
contest the survey originally made, and the nature of his interest,
were determined by the district court on his application to
intervene. The act of June 14, 1860, provides for the return into
court of surveys for examination and adjudication upon the
application of parties who, in the judgment of the district court
or judge, have such interest in the survey and location as to
render it proper for them to intervene for its protection. It
enacts that where objections are advanced by the United States, the
application shall be made by the district attorney, and be "founded
on sufficient affidavits," and that when the application is made by
"other parties claiming to be interested in, or that their rights
are affected" by the survey and location, there shall be a
preliminary examination into the fact and nature of such alleged
interest. "The court or judge in vacation," says the statute,
"shall proceed summarily, on affidavits or otherwise, to inquire
into the fact of such interest, and shall, in its discretion,
determine whether the applicant has such an interest therein as,
under the circumstances of the case, to make it proper that he
should be heard in opposition to the survey, and shall grant or
refuse the order to return the survey and location as shall be
just."
When the interest of the applicant is shown and the order is
made, those who claim under the United States, whether by
"preemption settlement or other right or title," must intervene in
the name of the United States, and be represented by the district
attorney and counsel employed by them acting with him. All other
parties not claiming under the United States and allowed to
intervene, must necessarily claim under cessions more or less
perfect of the former Mexican government. In the case at bar, when
the original survey was made, Berrysea applied for and obtained an
order for its return into court. In his petition he set forth that
he was the owner of the rancho south of the claim surveyed, under
title derived from the Mexican government, that the creek Milpitas
was the boundary between his rancho and the rancho confirmed, and
that the survey included about fifteen or eighteen hundred
acres
Page 75 U. S. 342
of land belonging to him. The order of the court made thereon
necessarily involved under the statute a determination that he
possessed such interest, derived from the former government, as to
render it proper that he should be heard in opposition to the
survey. His right to contest the survey, founded upon the interest
alleged, was then settled. The claimant might, perhaps, have
subsequently insisted that the intervenor had no such interest as
to give him a right to object to the survey, and have asked on that
ground for a revocation of the order. But not having taken any such
course, he cannot now object to the position of the intervenor as a
contestant. As contestant, the intervenor could, of course, show
his own occupation of the land in dispute to meet and overthrow the
pretensions of the claimant founded upon his asserted possession of
the premises.
As to the eastern boundary of the approved survey, we are not
entirely satisfied that it is correct. There is much force in the
position that this boundary should run along the base of the hills,
and not embrace any portion of their sides. But the United States,
who might have interposed an objection of this character, have not
appealed from the decree approving the survey in its present form.
They cannot, therefore, raise any objection to its correctness now.
[
Footnote 2]
Upon the whole case, we are satisfied that the survey approved,
is as favorable to the appellant as any which the evidence would
justify. The decree sustaining that survey must therefore be
Affirmed.
[
Footnote 1]
72 U. S. 5 Wall.
827.
[
Footnote 2]
Fossat Case, 2
Wall. 649.
