United States v. Fossat.

on a spur of which sierra is situated, as shown in evidence, a certain well-known and conspicuous live-oak tree, or enciño, and a portion of which sierra is separated, as shown in evidence, by the stream called the Arroyo de los Capitancillos, from the range of hills called Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla, in which are situated the quicksilver mines known as the Guadalupe, San Antonio, and New Almaden mines; on the west by the Arroyo Seco, on the side of the establishment of Santa Clara, the said Arroyo Seco being the continuation of the same stream above designated as the Arroyo de los Capitancillos; 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 centre of the cañada which is designated, in the espedientes and grants of Justo Larios and José 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 diseño, or map, in the aforesaid espediente of José 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 José Reyes Berreyesa, as expressed in the respective espedientes and grants of said Justo Larios and José Reyes Berreyesa, and delineated by the dotted line on the said diseño, or map, in the espediente of José Reyes Berreyesa; in the location of said line, reference to be made to the description thereof in the said espedientes and grants, and the delineation thereof on the said diseño, or map, in the espediente of José Reyes Berreyesa; which espedientes, grants, and diseño, or map, are on file and in evidence in this case; and the northern boundary of said tract of land granted to Justo Larios being the same which is shown in the diseño, or map, contained in the espediente of Justo Larios, which is on file and in evidence in this case, the said tract of land containing one square league, more or less.

And it is likewise further ordered, adjudged, and decreed, by the court, that the claim of the appellee to a portion of the said described tract of land is a good and valid claim, and that the said claim be, and the same is hereby, confirmed.

The land of which confirmation is hereby made to the appeliee is the whole of the tract of land described above, and which was granted to Justo Larios, with the exception of the two adjacent parcels thereof lying at the westerly end of said

United States v. Fossat.

tract, and claimed by the Guadalupe Mining Company, and which were conveyed to the said Guadalupe Mining Company by the two instruments of writing which are on file and in evidence in this case, and marked, respectively, "Exhibit M" and "Exhibit P;" the line dividing the land intended to be confirmed hereby to the said Charles Fossat, from the land of the said Guadalupe Mining Company, being the same which is expressed in said exhibits to be the eastern line of the tracts thereby severally conveyed, and the same which is more particularly designated as the eastern line of the lands of the Guadalupe Mining Company by the survey made by John La Croze, whose deposition, with the field notes of said survey attached, is on file and in evidence in this case, and delineated on the map of said survey, certified by John C. Hayes, U. S. Surveyor General, which is also on file and in evidence, marked "Exhibit I M," attached to the deposition of John La Croze, to which exhibits, map, deposition of John La Croze, and field notes, reference is made for a more full description of the said line, which is the western line of the land hereby confirmed to the said appellee, Charles Fossat. OGDEN HOFFMAN, U. S. Dist. Judge.

August 17, 1857.

The United States appealed from this decree to this court.

It was argued by Mr. Gillett and Mr. Reverdy Johnson for the United States, with whom were the Attorney General and Mr. Rockwell, and by Mr. Badger and Mr. Bayard for the appellee, with whom were Mr. Carlisle and Mr. Stanton.

It is not possible to do more than merely state the points assumed by the counsel. The arguments from geographical considerations and those founded on authorities must necessarily be omitted.

It has already been mentioned that the two questions which arose in the case were

1st. Whether more land could be given than the quantity called for in the grant.

2d. Where was the sierra at which the location was to begin? Upon the first branch, the counsel for the United States made the following points:

I. The decree of the District Court confirming this claim to the entire amount included in the boundaries of the tract, without regard to the quantity, is erroneous.

II. By the law in force in Mexico when this grant was made, and for a long time prior to that time, a grant like the one in

United States v. Fossat.

question was regarded as a grant of a certain quantity of land within the boundaries named, to be ascertained by measurement and separated from the residue of the tract, which residue or surplus continued to be the property of the nation.

III. This clause requiring the survey, and that the surplus shall remain to the nation, is embraced in most of the California grants, and has received an almost uniform construction by all the tribunals which have been called upon to adjudicate upon these claims. The decision of the commissioners has been uniform, that a grant like the present was only a grant of a quantity of land to be ascertained by measurement, and not a grant by metes and bounds. The same has been the decision of the Circuit Court, and in most cases by the District Court, and these decisions of the commissioners and District Court have been sustained by the Supreme Court of the United States in the cases which have been to that court, although the question was not expressly raised in these cases, nor does it appear that the counsel or court doubted it.

IV. In this very case of Fossat, the commissioners in their opinion regard the grant in this case as one of quantity, and only for one league.

V. Such we claim is the rule according to the law governing the case, yet these views are, we think, strengthened by the principles which prevail at common law in relation to public grants generally, and especially as to the construction of a grant like the one in question.

VI. It is true, as a general rule at common law, that in conveyances between individuals, monuments and definite boundaries are to control in preference to quantity, where the difference of quantity named in a deed does not greatly vary from the amount included within the boundaries, especially when the words "more or less," or "be the same more or less," are used; but this rule does not prevail where the boundaries are not definite, or where the excess or deficiency is large. Nor would the rule apply where the grant was from the Government, nor in a case like the present, where the words are, "a little more or less."

VII. The rule in relation to the survey of confirmed claims under the statute, and the practice adopted by the executive department of the Government, show that the decree of the District Court is erroneous. (9 Stat. at L., 633.)

On the second branch of the subject, the counsel contended that this grant was void for uncertainty, and could not be located. They also contended that the location should not commence at the highest range of hills, which we have seen was on the extreme south.

United States v. Fossat.

The southern boundary. The grant calls for the sierra. In the diseño, the only ranges of hills or mountains shown are the Lomas Bajas on the north, and a range on the south, designated as Sierra del Enciño.

It is in proof, and not denied, that between these two ranges is a valley called the Cañada de los Capitancillos, in which was the house of Justo Larios, and that the eastern and western boundaries being defined, this part of the cañada contained about one square league.

There is no evidence whatever of any possession or occupation by Justo Larios of any land beyond these limits.

This embraced the whole of the cañada between the eastern and western boundaries of this rancho.

The western portion of the same cañada was the rancho of Berreyesa, which was by a grant of a similar kind, with a description by metes and bounds in the body of the grant, but limited to one league, and which he himself described as a grant of "one one league only." We claim on behalf of the United States that this cañada was alone granted-that it is bounded on the south by the highland, and only highland in that direction, represented on the diseño; that either as the sierra mentioned in the grant, or the Sierra del Enciño as named in the diseño, it was clearly designed as the southern boundary of the tract.

The claimants contend that there is at a point much further south a live oak, an enciño, at a considerable elevation, which is more properly called Sierra del Euciño; and that the hills or mountains lying north of it, and on which are the New Almaden mines, are included in the grant. We will examine this question of boundary in reference to the language of the grant alone. 2. In connection with the diseño or map of Justo Larios. And 3. In view of any evidence connected with the claim of Berreyesa.

[The counsel then went into a minute examination of these several points.]

The counsel for the appellee had to establish the three following points:

I. That the land of Larios had to begin at the range of high hills, (where we placed the spectator in the beginning of this report,) instead of the lesser range of hills.

II. That it had to run as far as the boundary line which had been established between Larios and Berreyesa.

III. That by the insertion of the words "a little more or less" in the grant, it was intended that the grantee should not be confined to a league.

United States v. Fossat.

1. At the time when Larios obtained his grant, he presented a map or diseño upon which were depicted, in a very rough -way, the boundaries of the land he was soliciting. Upon this map there was a representation of hills, marked Sierra del Enciño, or Sierra of the Live Oak, and upon the plat introduced upon the argument there was marked the locality of a large oak tree, which some of the witnesses said could be seen for many miles off.

2. Upon this point the remarks of the counsel were as follows:

A corresponding grant to Berreyesa had been made on the 20th of August. The boundaries of this grant are as follows: "A part of the place called Cañada de los Capitancillos, bounded on the north by the Low Hills (Lomerias Bajas) in the vicinity of the plain of the town of San Jose; on the south by the mountain, (sierra;) on the east by the Laurel-tree Hills, (Lomerias del Laurel;) and on the west by the rancho of the citizen Justo Larios, which has for a boundary the angle which the Arroyo Seco (Dry Creek) forms with that of the Alametos' (Little Poplar's) direction; southward the eastern base of the low hill situated in the centre of the valley, (cañada,) until reaching the sierra.”

The

On comparing these grants, it appears that the sierra is called for as the boundary of both-the Pueblo Hills form the northern boundary of both. The division line between them is described in both grants as beginning at the same point, the junction of the Arroyo Seco with the Alametos, and extending southward until reaching the sierra, passing the eastern slope of the lometa or small hill in the centre of the cañada. rancho of one is called for in the other's grant as its abuttal. The division line extending from the junction of the Alametos with the Arroyo Seco, until reaching the sierra, is in Berreyesa's grant declared to be the boundary of Larios's rancho, while in Larios's grant the same line is designated as the boundary of Berreyesa's rancho.

Both ranchos had exactly the same boundary on the south, the southern boundary of both being the same sierra, named in the diseño of one Sierra Azul, and by the other, Sierra del Enciño.

3. As to the quantity of land which was conveyed by the grant, there is room only to insert the two first points, which were as follows:

In the District Court, the counsel for the New Almaden Company sought to limit the quantity to the exact measure of one square league, and no more. By the official survey, the quantity within the boundaries confirmed by the court is one league and a fraction of about three-fourths of a league.