Imágenes de páginas

In this case, the decree of confirmation, the petition and grant, are all for the quantity of two square leagues ; and the quantity clearly controls the terms descriptive of boundaries. The decree uses multifarious descriptions of the land confirmed, all subject to the condition of quantity. The land is declared to be “known by the name of Rincon de la Musalacon,”

“ being the same which was granted by Governor Pio Pico to Francisco Berryesa, on the 2d May, 1846;" and it is also declared, that it “is bounded as follows: Beginning at a conical hill known as the Devisidero corner, to the rancho of Jerman Peña, and running thence a little north of east, at right angles across the valley and Russian river with the line of said Peña, to the sierra on the opposite side of the valley, thence northwesterly along the sierra to the mouth of a cañon, formed by the mountains coming in close to the river, thence crossing the river to the mountain or sierra on the other side, and southerly along said sierra to the point of beginning, containing two square leagues and no more, being the same tract of land described in the original grant and map, copies of which are contained in the transcript in this cause, and to which reference is hereby made.” This description of boundaries is not found in terms so detailed and specific in the grant, nor does it appear to be drawn from the map; and it is an obvious remark, that in the absence of any regular survey, these boundaries could not be expected to contain the two square leagues of lands, no more and no less, which it has become, by the confirmation, the duty of the Surveyor-General to locate. Reverting to the grant, it is found to give to Berryesa two leagues, known by the name of “Rincon Musalacon,” “bounded on the south by Don Jerman Peña, and on the other side by the sierras, to be comprised within the limits prescribed in the design or map.” On the map, the hill “known as the devisidero," seems to be shown, from which a line is drawn at right angles, or nearly so, across the valley and river, and forms the No. 1 side of the rectangular figure approximating a square, within the four sides of which, one, two, three, four, as numbered on the map, the two leagues are to be found. Side No. 3, opposite No. 1, is a line parallel to No. 1, and drawn through the cañon where the river passes through the converging sierras, or hills; and sides No. 2 and No. 4 are arbitrary lines, at right angles to the other two. Within the region of country embraced by this rude sketch, the two leagues must be located conformably to the general regulations. From a glance at the plat of survey now before me, and a comparison thereof with the original desiño, the strong presumption arises, that the limits of the latter have been exceeded, and the regulations respecting compactness of form, and conformity to lines of the public surveys, disregarded in the survey made by deputy Tracy.

If sierras are sought as boundaries, on the sides parallel, or nearly so, with the river, it seems probable that hill lands may be found between the mountains and the valley, some of which might be included in the location, and the rectangular shape of the claim preserved, which would, in my opinion, accord more strictly with the grant and confirmation, than the survey of a narrow belt on both sides of the river.

The survey now before me should, as you suggest, be returned to the Surveyor-General, for a re-examination of the case, that he may ascertain with certainty the true locality of the “devisidero," of the map, grant and decree; and with a view of reducing the claim to a form more compact, and more in conformity with the lines of the public surveys.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 658.

Pastoria de las Borregas and Posolmi. Method of proceeding where there is an alleged interference of boundaries between two confirmed claims.


April 27, 1859. After a careful examination of the affidavits filed, and upon which is asked a suspension of the issuance of a patent, in the case of the survey

of that portion of the California land claim, known as “ Pastoria de las Borregas," which has been finally confirmed to Martin Murphy, Jr., I am of the opinion that the patent should not issue, until after a review by the Surveyor-General of the questions of location and conflict, after due notice to the parties, or their attorneys of record, who claim that the present survey interferes with their rights as claimants of the adjoining rancho, under the Posolmi, or Ynigo's grant, and includes part of their land

That there is an interference, or at least that a division line between the two claims must be established, is evident from any and all the papers accompanying your report. The decree in this case assumes the probability of an interference, and it protects the Ynigo claimants by the following stipulations, viz., “the place belonging to the Indian Ynigo, and known as 'Las Animas,' is excepted from this confirmation." It appears that Las Animas has been confirmed, but has not been conclusively located, and the attorneys for that claim complain of the present survey as interfering with the boundaries of the Ynigo claimants; and allege that said survey was made without notice to them or their clients. I think that the affidavits in the case, show the insufficiency of the notice, if any was given; and Mr. Halleck makes oath that the deputy surveyor, after he had returned the plat of survey, admitted to him that no notice had been given, either to the attorneys or claimants of Las Animas. The 13th section of the Act of Congress, March 3, 1851, and the 3d section of the Act of March 3, 1853, prescribes that, in the survey and location of private land claims in California, the Surveyor-General shall have the same power and authority as are conferred on the Register of the Land Office, and the Receiver of the public moneys, by the 6th section of the Act to create the office of SurveyorGeneral of the public lands for the State of Louisiana, approved March 3, 1831. The 6th section of that Act provides, "in relation to all such confirmed claims as may conflict, or in any manner interfere with each other, that the officers,

“shall in their decision, be governed by such conditional lines or boundaries as have been or may be agreed upon between the parties interested, either verbally or in writing, and in case no lines or boundaries be agreed upon between the parties interested, then the said Register and Receiver are hereby authorized to decide between the parties, in such manner as may be consistent with the principles of justice.” In order to the proper execution of the duty, by these Acts imposed on the Surveyor-General of California, in cases wherein he finds that there is a conflict or interference in any manner, or is so notified by a party in interest, he should, in the first place, ascertain if any conditional lines or boundaries have been or are likely to be agreed upon between the parties in interest, and secondly, if none be agreed on, he must then decide si between the parties,” in a manner that is consistent with the principles of justice. It appears to me that a decision between parties, in the manner prescribed, involves a hearing, by the Surveyor-General, of both or either of the parties to the contest, if they desire to be heard, and a fair opportunity to both to present their respective claims.


You will therefore return all the papers in this case to the SurveyorGeneral, with instructions to give both parties a fair hearing, and make his decision between them. I am unable to arrive at the conclusion, that there is no conflict or interference in the lines or boundaries of these two confirmed claims; the decree of confirmation assumes that there is; the claimants and attorneys of “Las Animas,” confidently assert that there is; and the affidavit of the deputy surveyor, filed by Mr. Murphy, admits that there is for he says, that the question of conflict was fully considered by him. Very respectfully, your obedient servant,

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 659.

The Rancho " De Tito" or Quito.
1. A private survey, which has been made by the claimants, which con

forms well to the map and expediente, which the claimants have regarded as a correct delineation of their land, or have encouraged the public so to regard it for many years, is entitled to be respected by the Surveyor-Gene

ral, as far as practicable, in making a final survey of the claim. 2. Where the decree of the court sets forth that the confirmed land has been

cultivated and possessed for many years by the claimants or their original grantees, such cultivation and possession may be followed for the purpose of solving doubts as to boundaries, or the proper location of a confirmed quantity within boundaries.


Washington, July 23, 1859. Sir :-The case of the Rancho de Quito, or Tito, Santa Clara county, California, comes before me under peculiar circumstances. In March, 1857, instructions were issued by Surveyor-General Hays, to deputy C. C. Tracy, who made a survey and returned it. Opposition to its approval was made to Surveyor-General Hays, and afterwards, before Surveyor-General Mandeville. The latter found the survey in his office, without any official action endorsed, and having examined it, and having visited the locality, under date of the 4th May, 1858, forwarded a diagram of it to your office, with an expression of his opinion in favor of its approval. In September, 1858, Mr. Hays made an affidavit, which has been placed on file by the contestants, in which he states, that shortly after the survey he examined it in connection with the expediente and map attached thereto, and declined to approve said survey, because the location was, in his opinion, incorrect, and did not comport with the description of the land, as shown by the expediente and map attached. This opinion was confirmed after a subsequent examination of the locality, on a personal visit for that purpose.

After consideration, you have formed an opinion favorable to Tracy's survey; and with the expression of that opinion submit all the papers in the case for


advice. On a review of the matter, I find serious objections to a decision by the Department favorable to the survey, particularly in the present condition of the matter.

First. As the survey has never been actually approved, and it does not appear that the contestants are aware of any expression by your office in favor of the same, there has been no opportunity of knowing what they

would desire to present before a final disposition of the case. My present action, therefore, ought not to be conclusive, but merely advisory.

Secondly. On an examination of the case, as presented by the papers, I think that it would be proper to return them all to the Surveyor-General, for a full hearing of the claimants and contestants before him, or before some officer authorized to administer oaths and take depositions, to be agreed upon by the attorneys on both sides; and on such hearing, a fair opportunity should be given for both parties to be present, and cross-examine the witnesses produced by the opposing party; for it would be unsafe to render a decision in an important case upon the voluntary affidavits that have been procured and filed heretofore. The merits of the survey made by Mr. Tracy, are not established to my satisfaction. Deputy Tracy and SurveyorGeneral Mandeville, are of the opinion that the claimants are entitled to the location indicated by the survey ; Col. Hays and deputy Lewis, are decidedly of the opposite opinion; and all have been upon the ground, and examined the land in person.

The complaint of the contestants against the survey is, that it extends too far to the northeast, and embraces valuable improvements of squatters, who settled in the belief that the lands they have improved, belonged to the United States. They allege that a line was surveyed in 1851, for the northeast boundary of said rancho, by the authority of Forbes, the agent of the claimant of record, which gave the claim another location; and that the survey under the decree of confirmation ought to be confined to the lines of the Forbes survey, or conformed thereto as nearly as is consistent with quantity. They urge, with great force, that the shape given to the rancho by the private survey of Forbes, is a near approximation to the shape indicated by the desiño, and includes a sufficient quantity of land. It may be added, that the Forbes survey may have been regarded at the date of confirmation, by the agent or attorneys of the confirmee, if not by the Board, as a fair exponent of the desiño, and affording information in regard to the situation of the rancho. A further objection to the survey, as at present viewed, is, that there is a strong indication by an inspection of the desiño and the several sketches among the papers, that all the boundaries named in the decree and grant may become boundaries of the rancho, by a closer adherence to the location given by the Forbes survey. The decree of the Land Commissioners names the rancho of Prado Mesa, as bounding Quito on the north, that of Sebastian Peralta as abutting on the south, with the sierra for a western limit, and the Mission of Santa Clara on the east-reference being made to the grant and map--and the land embracing an oak grove.

The expediente, desiño and map, indicate that there is a roblar in the eastern portion of the land granted, and whether a roblar or any part of one, may be included in a survey, approximating nearly to the shape of the desiño, and having the boundaries called for in the grant and decree, is the matter first to be determined. If this can be done, it ought to be done. The present survey should be then rejected, in favor of such a survey.

But if all the boundaries, the shape, and a roblar, cannot be had in consistent conjunction, the question arises whether the claimants may have such a location of the quantity confirmed to them, as will include the “roblar,” in the direction of Santa Clara, or must they take by the Forbes survey, or a near approximation to it? On this branch of the case, I think the decree of the district court will enable the Surveyor-General to reach a just conclusion. That decree, under date of 20th February, 1857, recites that “the land was occupied and cultivated by the original grantees, and has continued in their possession, and that of parties under them, until the present day. Its boundaries are well known, and described with considerable precision in the grant, and accompanying map.” Now, if a location

harmonizing the desiño, the boundaries, and the natural objects named in the muniments of title, cannot be had, I should

say that the claimants might take their land partly, according to their continuous possession; and if they did occupy and cultivate, and maintain possession under their grant of the particular parcels of lands which the contestants claim should be left out, in making a final survey, the claimants may be allowed to take in the land so possessed and claimed; but if the claimants, and those under them, between 1851, and February 20, 1857, regarded, or caused the public to regard the Forbes survey as a correct delineation of their land, and as fixing the locus of the quantity granted them, and settlers went upon the lands lying between the Forbes survey and Santa Clara Mission, and made valuable improvements, believing that they had settled on public lands, I could not recognize the right of the claimants, at this late period, to choose their confirmed quantity, in such a manner, as to embrace those improvements within their lines, whilst by so doing they were throwing off other land that was within the limits shown by their original desiño, and were departing from the desiño, as to shape, and from the grant, as to the external boundaries mentioned for their rancho. The papers which accompanied your report are now returned. .

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 660.

The Tularcitos Rancho.
Where the boundaries of the land are particularly set forth in the decree

of confirmation, and can be truly ascertained, the Surveyor-General should follow them. The proposition that the true boundary of the grant in one direction, is another ridge of hills or mountains than the ridge which satisfies the calls of the decree, cannot be considered in making the final survey.


Washington, July 30, 1859. Sir:-With your report of the 23d ultimo, the appeal of the attorney for the claimants of “Los Tularcitos” rancho, California, (finally confirmed to Antonio Hignera and others,) from your decision concurring in the views expressed by the Surveyor-General in his report of the 30th June, 1858, has been submitted to me.

The confirmees complain that the Surveyor-General proposes to locate the eastern boundary of their land too far west, thereby excluding from their raucho, the plain and valley of the Calaveras river or creek. They claim that a certain “lone tree,” which he has made a corner of their land, is only an object in their northern line which ought to be extended eastward through and beyond that object till it intersects the highest ridge of the Sierra Madre. That the ridge on which the tree stands, is not properly a sierra, and their decree and other evidences of title will not warrant the adoption of that ridge as their eastern limit, when the Sierra Madre is so near and in the same direction; and that the desiño and their occupation, entitle them to the Calaveras valley.

It may be admitted that their arguments would have great force, if

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