Opinion of the court.

knowledge of counsel, become the dominus litis on both sides, still that the question of damages for infringement on the bill remained to be adjusted, and that this required a settlement of the merits as they originally stood.

Mr. Justice NELSON delivered the opinion of the court. The case, as it now stands, is this: The complainants having purchased in the patents under which the suit was defended, own both sides of the subject-matter of this litigation; and, further, the owners of the Dixon patents having taken, in consideration for the sale, stock in the complainants' company, their interest has been transferred to the side of the complainants.

It is said, notwithstanding all these negotiations, exchanges, and transfers, the damages for the alleged infringement in the bill have not been compromised. But, before that question can be reached, as the bill was dismissed below, this court must hear and determine the question on the merits, whether or not the defences set up in the answer are sustained upon the proofs. If the court should determine they were not, then the question of damages would arise; if otherwise, not. Now, upon this question of merits, the complainants own both sides of the litigation, and control them; and, in the language of the Chief Justice, in the case of Lord v. Veazie, the plaintiff and defendant have the same interest, and that interest adverse, and in conflict with the interest of third persons, whose rights would be seriously affected, if the question of law was decided in the manner that both parties to this suit desire it to be." And, for this reason, the case should not be heard by this court.

*

If anything further was necessary to show that the litigation is no longer a real one, even if the suit should proceed, and the question of damages be reached, there would be the same interest on both sides, Dixon, one of the defendants, since the sale of his patents, having a large interest on the side of the complainants, and, as defendant, would be

* 8 Howard, 255.

Statement of the case.

subject to his payment of part, or the whole amount, of the damages recovered. Indeed, the weight of the proofs is, that he has bound himself to keep his co-defendants harmless.

The motion to dismiss the case, for the reasons above given, must be

GRANTED.

ALVISO v. UNITED STATES.

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 14th, 1860, must claim under cessions of the former Mexican government. The order of the District Court, allowing a party thus claiming to intervene, is a determination that he possesses such interest derived froni 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 onehalf 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,

Statement of the case.

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

Opinion of the court.

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. Bradley, for the appellant; Mr. Wills, contra

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

In the case of Higueras v. United States,* 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 situated in a larger tract, described by out-boundaries, 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 bounda ries, 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 en

* 5 Wallace, 827.

Opinion of the court.

titled 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.