McCormick v. Talcott et al. ceptive) are these: that the former, instead of being of iron, is made of wood; that instead of being movable or adjustable, it is stationary; that it is broader on its lateral surface than is that of the iron portion of McCormick's divider, and on that lateral surface is somewhat curved. But these differences, correctly apprehended, are mere disguises, and were indispensable to shelter the possession of property evidently pirated from the rightful owner. Had the appellees openly taken McCormick's iron instrument, adjusted it so that it could be graduated in practice to the quality or height of the grain in which the machine was to operate, and placed it at an angle suited to the conducting of the grain within the action of the reel and cutters, there would in so bold a piracy have been left no ground, no pretext even, for contest or cavil. Hence the effort at distinctions or differences attempted in the case. To my mind, it seems impossible not to perceive that they are entirely unfounded, and cannot for one instant conceal these truths, viz: that the instrument or structure called a divider, introduced and practiced by the appellees, is in theory or principle, in manner of its operation, in its effects or results, and it may almost be said in its minute constituent portions and formation, identical with the instrument invented by and patented to the appellant, and therefore an infringement of the rights guarantied to him by the Government. Entertaining this opinion, I must dissent from the decision of the court in this cause, and declare it as my opinion that the decree of the Circuit Court should be reversed, and this cause remanded with instructions to reinstate the injunction formerly awarded by the Circuit Court, and to direct an account between the parties. The only legitimate inquiry for the court is this: whether the improvement of McCormick called a divider, and the instrument claimed and put in operation by Manny, are essentially the same, or are essentially or substantially different. All that has been said (and a great deal has been said) about the comparative superiority or inferiority of inventions or improvements previous to those patented to McCormick, is wholly irrelevant, and out of this cause; and is calculated only to confound and to divert the attention from the only proper subject of investigation here, which is the rightfulness of the claims advanced by the appellant and appellees in this cause, relatively to themselves, and to no others. United States v. Fossat. 20h 418 L-ed 944 21h 446 23h 500 1wa316 THE UNITED STATES, APPELLANTS, v. CHARLES FOSSAT. Where a petitioner files a claim to land in California before the board of commissioners created by Congress, the intervention of rival claimants is a practice not to be encouraged. Where there is no natural boundary or descriptive call for the termination of lines of a tract of land, and the quantity of land called for in the grant is "one league of the larger size, a little more or less," the survey must only include a league. The words "a little more or less" must be rejected. The grant is for one league of land, to be taken within the southern, western, and eastern boundaries designated therein, and 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. [MR. CHIEF JUSTIce Taney, being indisposed, did not sit in this case.] THIS was an appeal from the District Court of the United States for the northern district of California. Fossat claimed an interest of three-fourths in the tract of land granted to Justo Larios by Governor Alvarado, on the 1st of August, 1842. The mesne conveyances need not be stated, as the only dispute in this court related to the location of the land. In June, 1842, Larios presented a petition to the Governor, stating that he had previously presented one in 1836, and another in 1840, both of which were lost. He stated that he had purchased a house upon the premises, and resided there since 1836. Whereupon, the following grant was issued: Juan B. Alvarado, Constitutional Governor of the Californias: Whereas the citizen Justo Larios has asked, for his own benefit and that of his family, the land known by the name of the Capitancillos, bounded by the sierra, by the Arroyo Seco, on the side of the establishment of Santa Clara, and by the rancho of citizen José R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward to the sierra, passing by the eastern base of the small hill situated in the centre of the cañada, the necessary steps having been taken and inquiries made, according to the laws and regulations on this subject, by virtue of the powers conferred upon me, in the name of the Mexican nation I have granted him the said land, declaring it his property by these presents, subject to the approval of the Departmental Assembly and to the following conditions: 1st. He may enclose it without injury to the passes, roads, and servitudes; he may enjoy it freely and exclusively, using 2wa 704 2wa 706 2wa724 United States v. Fossat. or cultivating it as may best suit him, and within one year he shall build a house, and it shall be inhabited. 2d. He shall solicit the proper judge to give him juridical possession, in virtue of this decree, by whom the boundaries shall be marked out, and he shall put on the boundaries, in addition to the landmarks, some fruit trees or useful forest trees. 3d. The land herein referred to is one league of the larger size, a little more or less, as is explained by the map accompanying the espediente. The judge who shall give the possession shall have it measured, in conformity to law, leaving the surplus which remains to the nation, for the purposes which may best suit it. 4th. If he should violate these conditions, he shall lose his right, and liable to be denounced by another. Wherefore I order that this title, being held firm and valid, shall be registered in the book of adjudications of vacant lands, and delivered to the person interested, for his protection and other purposes. Given in Monterey, the 1st of August, 1842. The reporter will endeavor to give the reader an idea of the locality without a map, which it would be difficult to make. Let him imagine himself standing upon a range of hills or sierra about three thousand feet above tide. Looking to the north, he sees another range of hills about half as high as the one upon which he stands, and running nearly parallel therewith. The two ranges are connected together by a spur, running from one to the other, and from either side of this spur springs flow, which, running down ravines to his right and left, find their way around the lesser hills in front. Upon his left hand, the spectator may be supposed to trace the Arroyo Seco, which is Larios's boundary on that side; and upon his right he may see the marked line which had been mutually agreed upon by Larios and his neighbor Berreyesa as the separating line between them, and which constituted Larios's boundary upon that side. Thus standing at one end of a narrow parallelogram, the spectator may see the two lines upon his right and left, looking indefinitely into the distance for the closing line. In this state of things, two questions arise: 1st. Which is the sierra where the tract of land begins? Is it the range of hills upon which we have supposed the spectator to stand, or the lesser tange in front, called "Lomas Bajas." 2d. How far does the tract run in the direction where no boundary is given? Does it run as far as the dividing line is laid down between Larios and Berreyesa, or does it stop where United States v. Fossat. the quantity of land called for in the grant is obtained? The board of commissioners adopted the former rule, and therefore continued the tract up to the Arroyo Seco, which was the termination of the boundary line between Larios and Berreyesa. It may not be easy for the reader to apprehend precisely the different decisions hereafter referred to, because the points of the compass did not exactly correspond with those heretofore mentioned in the general view which a spectator is supposed to take from the top of the sierra. The decree of the commissioners was as follows: Decree. CHARLES FOSSAT V. THE UNITED STATES. In this case, on hearing the proofs and allegations, it is adjudged by the commission that the claim of the said petitioner is valid, and it is therefore decreed that the same be confirmed. The land of which confirmation is hereby made is a portion of the place known by the name of Los Capitancillos, situated in Santa Clara county, and the same which was formerly occupied by Justo Larios, and the portion thereof hereby confirmed to the petitioner is bounded and described as follows, to wit: On the south, bounded by the sierra; on the north, by the Arroyo Seco; on the west, by the middle of the ridge of the low hills running north and south, (which hills lie at the western end of said rancho los Capitancillos,) and the said division line being the same line of division adopted in a partition of said rancho, made by William Wiggins, and John B. Weller, and James M. Jones, as will appear by their deeds of partition recorded in the office of the recorder of deeds for Santa Clara county, in liber "C" of deeds, page 458; and on the east, by the place known as the rancho of the citizen José R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward to the sierra, passing by the eastern base of the small hill situated in the cañada. The said premises containing three-fourths of a square league of land, a little more or less; reference to be had to the grant of said rancho to said Justo Larios, and to the map which constitutes a part of the espediente, which are on the file in this ALPHEUS FELCH, THOMPSON CAMPBELL, R. AUG. THOMPSON, Commissioners. case. Filed in office, February 28, 1854. (Signed) GEO. FISHER, Secretary. United States v. Fossat. The United States appealed from this decision to the District Court of the United States for the northern district of California. In that court there were a number of depositions and plats filed. In August, 1857, that court passed the following decree, by which it will be seen that the tract of land was ordered to begin at the higher range of hills, and to run as far as the boundary line reached which had been adopted by Larios and Berreyesa: Transcript from Board of Commissioners, No. 340. THE UNITED States, Appellants, v. Charles Fossat, APPELLEE. On appeal from the final decision of the board of commissioners to ascertain and settle private land claims in the State of California. Decree. This cause came on to be heard at a stated term of the court, on appeal from the final decision of the board of commissioners to ascertain and settle the private land claims in the State of California, under the act of Congress approved on the 3d of March, A. D. 1851, upon the transcript of the proceedings and decision of the said board of commissioners; the papers and evidence on which the said decision was founded, the petition of the appellants and answer of the appellee, and the further evidence given in this court, by leave of the court, and it appearing to the court that the said transcript has been duly filed according to law, and the appellee in open court confessing error in the said decision of the board of land commissioners, in this, that it does not describe in a manner sufficiently defi nite the boundaries of the tract of land intended to be confirmed to the claimant; and consenting that the said decision be reversed, and such decree be entered in this court as may be lawful and proper upon the whole evidence; and counsel for the respective parties having been heard, it is by the court hereby ordered, adjudged, and decreed, that the said decision. of the board of land commissioners be, and the same is hereby, reversed. And the court now proceeding to render a new decree in the premises, it is further hereby ordered, adjudged, and decreed, that the grant made to Justo Larios, from whom the appellee, Charles Fossat, derives his title, is a good and valid grant to said Larios of the place known by the name of Los Capitancillos, situated in the present county of Santa Clara, and formerly occupied by the said Justo Larios, and bounded and described as follows, to wit: On the south by the main sierra, |