No. 653. Where two Mexican grants of land in California have been confirmed, pursuant to the provisions of the Act of Congress of 3d March, 1851, the older grant, which has also the earlier confirmation, is entitled to a preference in location, by the Surveyor-General, if the two grants lie afoul of each other. The survey of the older grant and confirmation, should be returned for patenting; and it is lawful to survey to the junior grant so much land as lies within its proper sketch, and is not interfered with by the location of the senior grant, though the quantity thus surveyed be less than the quantity of land confirmed to such junior grant. The action of the Surveyor-General will not, however, preclude a future investigation by the proper judicial tribunals. ATTORNEY-GENERAL'S OFFICE, Sir-From your letter dated May 9, 1859, and the documents which accompany it, I learn that Manuel Jimeno received from the Mexican Government, in due form, a grant for eleven leagues of land lying upon the Sacramento river. The shape and situation of the land granted are described in the act of concession, and defined more exactly by a map accom same position. Supposing it to be genuine, yet the situation of Micheltorena at its date would impair its validity. He had been driven from the capital, was not in the peaceful exercise of his official authority, and was shortly after compelled to abdicate. The grant was not recognized by his successors, nor was it placed in the archives. It was not a valid claim at the date of the treaty of Guadalupe Hidalgo.-United States v. Sutter, 21 Howard, 170. Where there was a petition for land in California, addressed to Micheltorena, the Governor, which was referred by him to the Secretary, Jimeno, and by him to Sutter, and there is no evidence that these papers, with Sutter's certificate, was ever returned to the Governor, or sanctioned by the authorities of the State subsequently, the evidence is not sufficient to support the claim, although sanctioned by what is called Sutter's general title.-United States v. Nye, 21 Howard, 408. (See also United States v. Bassett, 21 Howard, 412.) The jurisdiction of the Board of Commissioners for the settlement of private land claims in California, and of the courts of the United States on appeal, extends not only to the adjudication of questions relating to the genuineness and authenticity of the grant, and others of a similar character, but also to all questions relating to its location and boundaries; and does not terminate until the issue of a patent conformably to the decree. It is the duty of the Surveyor-General to cause all private claims which shall be finally confirmed, to be accurately surveved and to furnish plats of the same.- United States v. Fossatt, 21 Howard, 445. The Supreme Court of Missouri has decided that the treaty by which Louisiana was acquired, imposed only a political obligation upon the Government of the United States to perfect titles, rights and claims, originating under France and Spain, and when the government confirms lands to one claimant it extinguishes any mere inchoate title in another.-Mackay v. Dillon, 7 Missouri Reports, 7. (See also on the latter point Harrold v. Simmonds, 9 Missouri Reports, 323; and Cottle v. Sydnor, 10 Missouri Reports, 763.) Also, that the confirmation of a claim of six thousand arpents of land, will not entitle the confirmee to hold a larger quantity, as included by the metes and bounds fixed by a subsequent survey, especially if such survey interferes with the claim of another person, which has been confirmed.-Dent v. Bingham, 8 Missouri Reports, 579. As to boundary, survey and description, see the following Missouri cases. Strother v. Chisty, 2 Mo. Reps, 148; Page v. Schiebel, 11 Mo. Reps. 167; Joyal v. Ripley, 19 Mo. Reps. 660; Carondelet City v. M Pherson, 20 Mo. Reps. 192; Papin v. Hines, 23 Mo. Reps. 274; St. Louis v. Toney, 21 Mo. Reps. 243; Magmir v. Taylor, 25 Mo. Reps. 484. panying the expediente. Subsequent to the date of Jimeno's grant, another grant was made to John Bidwell, of a tract called Colus, also lying upon the Sacramento river. The precise location of this grant is also ascertainable without difficulty, from the description contained in the grant and desiño. The two being compared together it becomes very clear that one lies afoul of the other. Both parties have obtained decrees of confirmation by the Board of Land Commissioners, by the District Court of the United States for California, and by the Supreme Court. Jimeno, or those claiming under him, not only has the advantage of his competitor in the priority of the grant, but was first in obtaining the several decrees of confirmation. Without repeating the questions which you propound to me, I shall answer all the points that have been raised in your Department concerning all the rights of these claimants with respect to surveys and patents. Both parties are not and cannot be entitled to the land which both of them claim. The title of one is beyond all question paramount to that of the other. It cannot be that the junior grant is equal to the senior. At the time that the concession was made by the Government of Mexico of the Colus tract, Jimeno was the owner of the land in controversy, and the Government had no right which it could convey. The Jimeno title then, being in every respect prior in point of time, must be regarded as better in law and equity than the other. It must take the interference, to the total exclusion of the other claim. It is the plain and manifest duty of the Surveyor-General to locate the whole of the Jimeno ranche just as it would have been located, if no opposing claim to the land it covers had been set up. The owners of the Colus grant are entitled to whatever land may still be left within the proper limits of their grant after satisfying the calls of the Jimeno tract. The SurveyorGeneral may, however, run on the ground, and designate in some proper way upon his plat, the lines which would have been assigned to the Colus ranche in case it had not been interfered with. But he cannot return for patenting more than one of the two conflicting surveys of the same land. It follows from what I have said, that it is lawful, in a case like this, to survey to the claimant, under the junior grant, less land than was confirmed. The elder grant must have what it calls for, and the junior can only take what is left. These views coincide not only with the instructions issued by your Department to the Surveyor-General, but also with the 13th section of the Act of March 3d, 1851, (No. 189,) which gives to the Surveyor-General the same power and authority as are conferred on the Register of the Land Office and Receiver of the public moneys of Louisiana, by the 6th section of the Act of March 3, 1831. The provision in the Act of 1831, referred to in that of 1851, is one which authorized the Register and Receiver to decide between the parties, when they are unable to agree among themselves, in such manner as may be consistent with the principles of justice. To decide, in that act, means to determine which of the two claimants has the better right, according to the principles of justice. The Surveyor-General's decision, however, is not final, and does not preclude a future inquiry by the proper judicial tribunals. While therefore he should in this case return the Jimeno survey for patenting, it is proper that he should do nothing which will obscure the right of the other party or prevent a fair investigation of it. In am, very respectfully, Hon. Jacob Thompson, Secretary of the Interior. J. S. BLACK. No. 654. No grants have been made by Congress to individuals, of gold mines in Lead and Copper mines in the northwest, pass to Grantees. * * * * Congress, in regard to the gold mines of California, has not made any special grants to individuals, nor passed any general law by which special rights thereto, by individuals, might be acquired. Under the Spanish or Mexican law, it is contended that no rights to said mines within the Mariposas claim were acquired by the original grant, the basis of the present patent, * It is proper further to state, that the present policy of the United States in relation to the lead and copper mines of the northwest, is understood to be at variance with that pursued by the Mexican government. Here, wherever a grant has been made of land, and any lead or copper mines were discovered in them, the latter passed to the grantee. Hon. Franklin Pierce. R. M'CLELLAND, Secretary. No. 655. Case of the Novato Rancho. 1. Quantity and boundaries. Where the quantity confirmed by the decree of the court, is less than that ascertained by survey, to lie within the boundaries specified, the effect of the decree is to give the quantity to be located within the boundaries. 2. As a general rule, in case of Mexican grants, the quantity which is certain, and can be exactly ascertained, may be regarded as controlling boundaries which are uncertain, which have never been officially surveyed, and concerning which there is room for dispute. DEPARTMENT OF THE INTERIOR, Your report of the 23d ultimo, with your proposed instructions to the Surveyor-General of California, in the matter of the approval of the survey of the Novato rancho, have been carefully considered. The Surveyor-General reports that the survey in question was made under instructions from his predecessor, and includes about three square leagues of land, whilst the decree of confirmation, after specifying boundaries, contains these words also, "containing two square leagues a little more or less." He reports that his decision would be, if not otherwise directed, that the claimant "has a right to select, in satisfaction of his confirmation, out of the prescribed boundaries, a tract of two leagues, having a compact form." Your proposed reply in the matter recites, that there were two grants in this case, "one by Governor Alvarado, on the 16th of April, 1839, the other by acting governor Jimeno, on the 13th November of the same year, both describing the tract granted by the name of Novato, the same boundaries recited in both, and also sketched in the desiño, and the contents given, as two square leagues a little more or less, with the usual sobrante clause." Rejecting the words "a little more or less," as having no meaning in a system of surveys like our own, the question arises, whether the Surveyor-General should approve a survey by boundaries which include about three square leagues, or should cause a survey to be made, which would restrict the claim to two square leagues, the quantity mentioned. If it were impossible to ascertain and mark the boundaries called for, with proximate certainty, without including more than the area of two square leagues, it may still be said, that by the usual sobrante clause in a Mexican grant, the quantity of land granted is stated, and the officer who gave possession, was required to have it measured, in conformity to law, leaving the surplus which might remain, to the nation, for such purposes as might best suit it. The limitation of quantity, thus rendered certain, became a controlling condition of the grant, although the boundaries described might include more. In this case, the Surveyor-General, on whom the duty of surveying confirmed claims is by law devolved, on turning to the original grants and other papers on file in his office, finds that all these documents, as well as the decree itself, indicate to him a tract of two square leagues in extent. The water lines, and other boundaries specified, inform him of the geographical location of the tract, and if it is not possible for him to find the tract, which has the required size and the limits stated, it is possible to find a tract embracing the proper quantity, and lying within the limits named, and this, it is, in my opinion, his duty to do. As allusion is made in your proposed communication, to my decision of the 8th July last, in the case of the San Pedro rancho, I take occasion to remark, that in that case, when reference was had to the documents on file, it was found that there had been a grant by the Spanish authorities, which had been recognized by Mexico, for the "estate of San Pedro," with fixed boundaries, and without limitation of quantity or reservation of excess, to the nation; and as there was no limitation of quantity in any of the muniments of title from the Spanish or Mexican Governments, and the boundaries of the rancho, as set forth in the decree, were well known, and had been accurately ascertained, the statement of quantity in the decree was regarded as descriptive, and as controlled by the notorious and well ascertained boundaries of the lands, of which confirmation was made. On the contrary, in this case, when we revert to the original muniments of title, we find that the land was twice granted by quantity, and that the same quantity is mentioned in the decree of the court. As a general rule, in cases of Mexican grants, the quantity which is certain, and can be exactly ascertained, may be regarded as controlling boundaries, which are uncertain, which have never been officially surveyed and marked, and concerning which there is room for dispute. My decision upon the survey of the San Pedro rancho, should not therefore be regarded as a precedent, in any case which lacks, or falls short, in respect to any one of the several strong reason in that case, for regarding the confirmation as of a tract with determinate boundaries, within which more land was found than the quantity mentioned in the decree of the court. Your instructions to the SurveyorGeneral, in the matter of the survey of the Novato rancho, will be drawn so as to conform to the views above expressed. The papers submitted with your report, are now returned. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 656. Showing amount of Money appropriated for surveying Lands in California, extent of Surveys, &c. GENERAL LAND OFFICE, Sir-I have the honor to acknowledge the receipt, by reference, of the letter addressed to you, by Hon. Chas. L. Scott, under date of the 7th instant, and in reply to the seven several interrogatories, have the honor to report as follows: 1st. "The amount of money appropriated for the survey of the public lands and private land claims, in the State of California, from the time the office was first established up to the present time," is $1,639,516 58. 2d. "The number of acres surveyed, of the public lands," is 25,000,000. 3d. "The number of Spanish grants finally surveyed." This can only be ascertained by application to the Surveyor-General's Office, at San Francisco. The number for which approved surveys have been returned to this Office, is one hundred and eighteen. 4th. "The number of Spanish grants finally confirmed." Unknown to this Office, but the information may be obtained from the Attorney-General of the United States. 5th. "The number of Spanish grants patented," is forty-five. 6th. "The number of Spanish grants unsurveyed." This, like the third interrogatory, can only be answered by application at the Surveyor-General's Office, in California. 7th. "And the amount of appropriation asked for, and the amount appropriated for each year, by the several respective Surveyor-General's. The appropriation asked for, and the amount appropriated for each year, by the respective Surveyor-General's, is as follows, viz. : Asked for, Appropriated and apportioned, $2,592,350 00 Jos. S. WILSON, Acting Commissioner. Hon. J. Thompson, Secretary of the Interior. No. 657. Case of the Rincon de la Musalacon. 1. The effect of the Decree of Confirmation in this case, is to give the claimant two square leagues. 2. Where the outline map, or desiño, represents a rectangular figure, within the sides of which the granted land is found, and the boundaries as named in the decree comprise a much larger area than that quantity, it is a proper case for preserving, in the form of the two leagues located, a resemblance in shape to the shape of the tract embraced within the recited boundaries, and indicated by the maps. The land should not be located in a narrow strip, extending entirely through the centre of the tract shown by the maps, and taking up the lands on both sides of the river. DEPARTMENT OF THE INTERIOR, The survey of the rancho "Rincon de la Musalacon," and the other papers, submitted with your report of the 14th instant, are herewith returned. |