Contra Costa County CA Archives History - Books .....Rancho El Sobrante 1882
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Book Title: History Of Contra Costa County, California

DECISION OF THE SECRETARY OF THE INTERIOR IN THE MATTER OF THE SURVEY OF THE
RANCHO EL SOBRANTE, IN CALIFORNIA.

                            DEPARTMENT OF THE INTERIOR,
                                  Washington, February 23, 1882.

   To the Commissioner of the General Land Office—SIR: I have considered, on
appeal from the decision of your office of February 26, 1881, the matter of the
survey of the California private land claim known as El Sobrante Rancho, situate
in the counties of Contra Costa and Alameda, and confirmed to Juan Jose and
Victor Castro by the Board of Land Commissioners and the United States District
Court for the Northern District of California, under the Act of Congress
approved March 3,1851 (9 Stats., 631).

   Such facts, appearing of record in your office, as are necessary to a proper
understanding of the main questions presented for consideration, will be stated
as briefly as practicable.

   On the 26th of May, 1852, the said Juan Jose and Victor Castro, by their
attorneys, H. W. Carpentier and John Wilson, filed in the office of the said
Board of Land Commissioners a petition in which they set forth, among other
things, that on the 22d of April, 1841, they presented their joint petition to
Juan B. Alvarado, then Governor of Upper California, "for a grant of all the
vacant (sobrante) land lying between the Ranchos San Antonio, San Pablo, Pinole,
Valencia, and Moraga, being the surplus or overplus left between the said
Ranchos after the boundaries to the Ranchos" should "be ascertained and
settled;" that "on the 23d of April, 1841, the said Alvarado, so being Governor,
and having full power and authority to do so, granted the land as prayed for in
the said petition," and directed the petitioners "to appear anew before the
proper authority with a map of the land so asked * * * as soon as the boundaries
of the Ranchos named in said petition * * * should be ascertained, regulated and
settled;" that they had always been ready to comply with the direction of the
Governor to present themselves anew to the proper authority, with a map of the
land thus conceded to them, but that the boundaries of the Ranches named had not
been ascertained and settled; that "the said Victor, several years before the
date of the grant, had settled upon the land so granted them, had built and
resided in a house, and cultivated fields thereon;" that both the petitioners
"pastured their cattle, horses, etc., upon it," the land granted, "before the
grant was made," and had continued to do so ever since; that the said Victor had
"constantly since resided thereon," and had cultivated three different Ranches
thereon, and had, for the last fourteen years (prior to presentation of the
petition to the Board), "had and held (and which was known to the owners of the
neighboring Ranches mentioned in the grant * * *) exclusive and continued
possession thereof;" and the petitioners prayed that they might "be allowed to
intervene in the cases arising out of the said Ranches when the boundaries
thereof" were to be investigated, so that justice might be done them and they
obtain "all the vacant (sobrante) land lying between the said Ranches after
their boundaries are properly adjudged and regulated," and that their grant
might be confirmed and made valid to them "according to the full intent of the
grant at the time the same was made." (Record of Petitions, vol. 1, p. 460, et
seq., Land Commission of California.)

   On the same day, to wit, May 26, 1852, the Castros filed another petition, in
which they represented, as before, that they had petitioned for a grant April
22, 1841, of "all the vacant (sobrante) land lying in between the Ranchos of San
Antonio, San Pablo, Pinole, the ranch of Valencia and the ranch of Moraga, being
the overplus lying between these several Ranchos, which lie in the county of
Contra Costa;" that on the 23d of April, 1841, the Governor granted the same to
them, "as they petitioned," and directed them to "present themselves anew before
the proper authority, accompanied by a map of the land so granted, so soon as
the boundaries of the Ranchos named should be ascertained and settled; * * * but
that the boundaries of the said Ranchos" had never been ascertained and settled.
They therefore prayed the Board to ascertain and settle said boundaries, and
then they would comply with all their duty in the premises. They also stated
that they would prove that they had been "in the actual possession of said
sobrante or vacant land so granted them ever since the date of the said grant,"
and that they had "had on it a large stock of cattle, horses, sheep, etc."

   They further alleged that the grant had not been approved by the Departmental
Assembly, "because the boundaries of the adjoining Ranchos had not been
ascertained," and set forth other matters not necessary to be stated here.

   They again prayed the Board to confirm their claim, etc.   (Ib., p. 634-5.)

   Whether this petition was to amend the one first herein referred to, or vice
versa, does not appear; but the two may be taken together as the petition of the
Castros to the Board of Land Commissioners.

   It may be well here to state that about the year 1853, after said petition to
the Board was filed, and before the claim was confirmed, the county of Contra
Costa, in which the petitioners alleged their land to be situated, was divided,
and part of it included in the county of Alameda. There is, consequently, no
variance between the general location called for in the petition as in Contra
Costa county, and that in the Board's decree as in the counties of Contra Costa
and Alameda.

   In support of their claim the petitioners introduced in evidence the original
petition and concession, or grant, and a translation thereof, which translation
was certified as correct by George Fisher, secretary to the Board. This official
translation of said petition and grant reads as follows:

PETITION.

   To his Excellency, the Governor: The citizens, Juan Jose and Victor Castro,
natives of this Department, and residents within the jurisdiction of San Jose de
Alvarado, present ourselves before your Excellency in the most proper and
respectful manner, and represent that, being desirous of being finally settled
upon land of our own, for the purpose of devoting ourselves to the labors of
agriculture and the raising of cattle, in order by these means to obtain the
very necessary means of subsistence for our numerous increased families, which
is of such vital importance, we beseech your Excellency that you will deign to
grant unto us a piece of vacant land which is situate on the immediate limits
(inmediaciones) of San Antonio, San Pablo, Pinole, the farm (rancho) of
Valencia, and the farm of Moraga, which land is the overplus (sobrante) of the
ranches aforesaid.

Wherefore we humbly pray, etc.                JUAN JOSE CASTRO,
                                              VICTOR CASTRO.

MARGINAL CONCESSION OR GRANT.

                                    MONTEREY, April 23, 1841.

   As the parties interested petition for in this representation so the land of
which they make mention is granted unto them, they remaining under obligation to
present themselves anew, accompanied by a map of the land, so soon as the
boundaries of the neighboring land owners shall be regulated.
                                                 ALVARADO.

   (Record of evidence, vol. 19, p. 107, Land Commission, California.)

   Testimony was introduced to prove the genuineness of the grant, its
character, the settlement of Victor Castro thereon, the possession of the
Castros as alleged in the petition, and also some testimony concerning the
boundaries of the Peraltas' grant of San Antonio, and the case was submitted for
decision, whereupon, on the 3d day of July, 1855, the following opinion and
decree were rendered by the Board of Land Commissioners:

                                    OPINION. 
No. 96 Juan Jose and )
Victor Castro,       ) for a sobrante, in the county of Contra Costa,
vs.                  )
The United States.   )

   The evidence in this case establishes the following facts: That the
petitioners presented their expediente for a sobrante of land lying between
Ranches named in said expediente, and in pursuance of said expediente, Juan B.
Alvarado, Governor of California, on the 23d day of April, 1841, issued a grant
to the petitioners, and requiring them to report a plat of the same as soon as
the adjoining Ranches could be surveyed and the extent of the sobrante
ascertained, which survey has not been had of said Ranchos so as to enable the
petitioners herein to define with certainty the boundaries of their said
sobrante, and a large amount of testimony has been taken for the purpose of
settling the boundaries, which is rendered inapplicable to the merits of this
claim by the decision of the Supreme Court of the United States in the case of
Fremont.

   The grant offered in evidence is proven to be genuine, and the proofs in the
case go to show that it was issued to the grantees in consideration of services
rendered to the nation and for supplies furnished for the use of the Mexican
Government.

   We think this claim a valid one, and a decree will be entered confirming the
same.

DECREE.
Juan Jose Castro and Victor Castro, )
vs.                                 )  No. 96.
The United States.                  )

   In this case, on hearing the proofs and allegations, it is adjudged by the
commission that the claim of the said petitioners is valid, and it is therefore
decreed that the same be and hereby is confirmed.

   The land of which confirmation is hereby made is situated in the counties of
Contra Costa and Alameda, and is the surplus (sobrante} which on the 23d day of
April, A. D. 1841, the date of the decree of concession to the present
claimants, existed, lying between the tracts known as Ranchos of San Antonio,
San Pablo, Pinole, Moraga, and Valencia, reference being had to the original
expediente on file in this case. (Record of Decisions, vol. 3, pp. 106 and 107,
Land Commission, California.)

   The case was taken to the proper United States District Court, as provided in
section 9 of the Act of 1851, above referred to, and such proceedings were had
before, and decree entered by the Court as made the decree entered by the Board
the final decree in the matter.

   The contest now here on appeal arose over a survey of the claim thus
confirmed, which was executed by Deputy Surveyor William Minto, in 1878, under
contract with the Surveyor-General of California, approved by your office. The
field notes of the survey were returned to the Surveyor-General's office August
26, 1878, and from them a plat was made, after which, in September and October,
1878, notice of the execution of the survey and plat was duly published under
Section 1 of the Act of July 1,1864, (13 Stats., 332), and the survey and plat
were retained in the office of the Surveyor-General for inspection, as required
by law.

   Many objections to the survey, protests against the surveying of the claim as
demanded by the owners thereof, and interventions in the case were filed, some
before and others after the period of ninety days from the first publication of
notice had expired; and thereunder a vast amount of testimony was introduced
before the Surveyor-General, which was forwarded with the appeal. It is
unnecessary to pass upon the status of the various objectors, protestants,
intervenors, or to specify those who appeared in time and showed such interest
as entitled them to be heard, and to dismiss the proceedings of all others,
under the rule laid down by the Department May 28, 1879, in the matter of the
survey of the Rancho El Corte de Madera del Presidio (Copp's L. O., vol. 6, p.
52), for the reason that the case is appealed by parties having a proper
standing therein, who have raised every point, it seems to me, that the
circumstances of the case admit, or that arises in the case.

   I need not further recite connectedly the history or facts of the case,
enough having already been stated to develop the principal questions involved;
but such other matters of record in your office as shall seem proper to be
considered will be referred to and discussed as occasion may require.

   It is proper here to state my reasons for not using and discussing the
testimony of witnesses taken before the Surveyor-General. I have not done so for
the reason as to one branch of the case no such testimony is admissible, and as
to the other, from my view of the case, none of it is needed. The explanation is
this: The decree is said to be ambiguous. Now, if there is a patent ambiguity,
it cannot be explained by testimony unless the terms used are wholly indefinite
and equivocal, and convey on their face no certain or explicit meaning, and the
decree itself furnishes no materials by which the ambiguity thus arising can be
removed. In such a case, rather than the claim which has been adjudicated upon
the principles of equity (Sec. 11, Act. of 1851, 9 Stats., 633), should entirely
fail, the light of intrinsic evidence may be brought in to ascertain the
intention of the Board. But, in my opinion, the decree is not in such a
condition. I think that any patent ambiguity in the expressed decree can be
explained by reference to such matters, as, under the rules of interpretation
applicable to this case, may properly be examined for that purpose as a part of
the decree. It follows, therefore, that any ambiguity appearing upon the face of
the decree itself must be removed by construction and not by averment, and hence
upon this branch of the case the testimony aforesaid is inadmissible.

   The latent ambiguity of the decree can, in my opinion, be sufficiently
explained by the records of your office or those of the Surveyor-General's
office, and therefore the testimony of witnesses was not, and is not, needed in
this case. In other words, that which was confirmed by the decree of the Board
can be so surveyed as to do substantial justice from light afforded by the
records of the land department, and no testimony dehors the records would make
the matter more certain.

  The decree of confirmation in this case is final and conclusive as between the
United States and the Castros, or those claiming under them. If there were error
or mistake in it the only remedy was by appeal. The appeal from the decree of
the Board having been dismissed by the District Court, the decree must forever
stand as the court thus made and left it. There is no authority or jurisdiction
in any tribunal to correct, alter, amend, or an., nul it. Nothing remains to be
done except to execute it according to its true intent as the law provides. If
it is ambiguous and requires construction, then this must be done under the
rules of the common law. The decree must serve as the guide to the
Surveyor-General in making a survey in execution of the same. It is the duty of
the Commissioner of the General Land Office to see to it that the survey
conforms as nearly as practicable to the decree, and finally, the Secretary of
the Interior, by virtue of his supervisory powers and appellate jurisdiction,
has authority to review the action of the Commissioner in the premises and
direct how the survey shall be made. Each of these several propositions of law
will be found fully sustained by some one or more of the following authorities:
Higueras vs. The United States (5 Wall., 827, 828, 830, 832, 834); United States
vs. Halleck (1 Wall., 439); United States vs. Billings (2 Wall., 444); the
Fossatt case (ibid., 649); United States vs. Fossatt (21 How., 447); United
States vs. Sepulveda (1 Wall., 107); 12 Opins. Attorneys-General, 250; Snyder
vs. Sickels (8 Otto., 203); sections 13 and 15, act of 1851, 9 Stats., 633, 634;
sections 1, 6,7, act of 1864, 13 Stats., 333, 334; section 1, act of 1812, 2
Stats., 716; section 1, act of 1836, 5 Stats., 107; section 3, act of 1849, 9
Stats., 395; section 453 Revised Statutes; and decisions of this Department of
March 3, 1881, in the matter of the survey of the pueblo lands of San Francisco,
and of May 21, 1881, in the matter of the survey of the Rancho San Jacinto Nuevo
y Potrero.

  It has been contended in argument by some of the able counsel that the claim
of the Castros was not such as, according to the decision of the Supreme Court
in numerous cases, should have been confirmed; because the paper constituting
the petition and concession was in the hands of the Castros until the
organization of the Board of Land Commissioners, and until it was filed in the
office of the Board; because there was no map accompanying the petition, no
reference by the Governor of the petition for information, no report upon the
petition by any government officer, and the grant was not made matter of record
in the archives of the Mexican Government; and hence, that the only title to
consideration which the claim has is the decree of confirmation. For these
reasons it is contended that, as to the claim, the construction of the decree
should be strictissimi juris. Others contend that the doctrine applicable to
public or legislative grants should be applied in construing this decree; that
it should be strictly construed as against the confirmees. On the other hand,
counsel for claimants contend that the doctrine above mentioned does not apply
to decrees, especially not to a decree under the Act of 1851, founded upon the
principles of equity, and that as to such a decree the doctrine of liberal or
equitable construction should be applied.

   As to the first point, it is only necessary to say that the tribunal created
by law to execute the decree cannot go behind it. The presumption is that the
Board 'and the United States District Court did their duty in the premises, and
adjudicated the case upon the laws and principles by which they were required to
be governed as provided by section 11 of the said Act of 1851, and hence, that
the decree is valid and binding upon all parties thereto. Therefore, if
construction is necessary, the decree must be considered as entitled to the same
respect and consideration as any other final decree of confirmation under said act.
   As to all the foregoing propositions it may be said that the decree must be
executed according to its true intent and meaning, and that construction should
not be employed to any other end.

   Sedgwick, in his work upon Construction of Statutes, etc., after having
examined many decisions of courts bearing upon the subject of strict and liberal
construction, concludes a long chapter by giving the judiciary and the legal
profession, in the form of rules, the benefit of his extended researches, from
which I make the following quotations:—

   "The intent of the legislature should control absolutely the action of the
judiciary; where the intention is clearly ascertained, the courts have no other
duty to perform than to execute the legislative will, without any regard to
their own views as to the wisdom or justice of the particular enactment.
   "The idea that an act may be strictly or liberally construed without regard
to the legislative intent, according as it is viewed either as a penal or
remedial statute, either as in derogation of the common law or beneficial
innovation, is, in its very nature, delusive and fallacious.

   "In cases where the intent of the legislation is ambiguous, and the effort to
arrive at it is hopeless, and in these cases only, does the power of construing
a statute strictly or liberally exist." (Sedgwick on the Construction of
Statutory and Constitutional Law, 325 and 326.)

   The Supreme Court of the United States, in discussing the doctrine of strict
construction as applicable to legislative grants, held that the grant being
considered by them could not extend beyond the intent it expressed; that—

   "It should be neither enlarged by ingenious reasoning, nor diminished by
strained construction. The interpretation must be reasonable, and such as will
give effect to the intention of Congress. This is to be ascertained from the
terms employed, the situation of the parties, and the nature of the grant. If
these terms are plain and unambiguous, there can be no difficulty in
interpreting them; but if they admit of different meanings—one of extension, and
the other of limitation—they must be accepted in a sense favorable to the
grantor." (Leavenworth, etc., R. R. Co. vs. U. S., 2 Otto, 740.)

   The harmony between the doctrine expressed by the Court and that referred to
above is at once apparent. Both agree that the intention must prevail, but when
the terms employed are so ambiguous as to render it impossible to ascertain the
intention of the framers of the act, then the doctrine of strict or liberal
construction may be applied according to the nature of the case. The Supreme
Court, in the particular case, held that when the terms admitted of different
meanings, one of extension and the other of limitation, they must be accepted in
the sense favorable to the grantor. The Court supposed a case wherein it was
hopeless, from the ambiguity of the terms employed, to arrive at the intent of
the legislature, in which case it was authorized to employ the doctrine of
strict construction as to the grantee, or to take that meaning which was
favorable to the grantor. A meaning of extension and another of limitation are
certainly diametrically opposed to each other, in which case one could be taken
to the exclusion of the other. But where no such condition of affairs exists—
where the intent can be reasonably ascertained from the whole act or instrument
being interpreted—then there is no choice left, and the intent must govern.

   In this connection it may be well to advert to the fact that the decree
refers to "the original expediente and grant on file in this case." That
instrument, therefore, may be read with the decree as a part of it (Sedgwick on
Construction, &c., 2d edit., 229 and 230; and Broom's Legal Maxims, 7th edit.,
673 et seq., and the numerous cases cited therein); not, however, for the
purpose of opening anew any question adjudicated by the Board and District
Court, nor for giving to the instrument referred to any other construction or
force than that given by the Board and Court, as expressed in their decree;
hence, not for the purpose of changing the meaning of terms that are clear and
unambiguous in the expressed decree, but only to explain any ambiguity in the
decree itself, (U. S. vs. Halleck, 1 Wall., 455; decision of this Department of
May 21, 1881, in matter of survey of Rancho San Jacinto Nuevo y Potrero).
Wherein the decree, on its face, is clear so far as it relates to the subject
matter or the original petition and grant, it must be held to be the
construction of the Board and Court upon those instruments, which cannot be
questioned here. Furthermore, in referring to the petition and grant in this
decree, we can only look to the official translation thereof; we cannot take any
other translation, and by it undertake to explain any dubious expression of the
decree. The Board had the services of a Secretary "skilled in the Spanish and
English languages," a part of whose duty it was to act as interpreter to the
Board, as the law provided. (Sec. 1, Act of 1851, 9 Stats., 631). The Secretary
certified the translation of the petition and grant above given to be correct.
The Board and the District Court gave consideration to the petition and grant,
and adjudicated the case in view of that official translation. It follows, upon
reasons too apparent to require explanation, that the expert testimony of
witnesses before the Surveyor-General, giving a different translation to some of
the words in the original petition and concession than that certified by
Secretary Fisher, is wholly inadmissible, and that all efforts to inject into
the case now any other translation than that which the Board and Court adopted,
must fail.

   The points raised by the objectors, protestants, etc., are very numerous, and
need not be recited here. They are all, in some way, embraced in the three
following general questions or propositions:

   First. It is contended by the owners of the grant that the decree confirmed
to them all the land within the exterior boundaries of the five Ranches named as
colindantes, which should be left or result as surplus upon the final survey of
said Ranches; that their grant is not limited, except as by the exterior
boundaries of said Ranches and their finally surveyed limits, and therefore that
the locative call in the decree for land "lying between the tracts known as
Ranches of San Antonio, San Pablo, Pinole, Moraga, and Valencia" should be
disregarded in making a survey under the decree.

   Second. Some of the contestants insist that the claim confirmed was a piece
of vacant land, never within the exterior boundaries of the five Ranches
referred to, nor any of them, but outside thereof and bounded by them.

   Third. Other contestants admit that the land confirmed was surplus of said
five Ranches, or some of them, but insist that it must, from the terms of the
decree, lie between those Ranchos as finally surveyed, in the sense of being
surrounded or partly surrounded and bounded by them.

   The better to understand the situation, a short explanation of the location
of the five Ranches mentioned is necessary.

   The San Antonio Rancho has the Bay of San Francisco for its western boundary,
the ridge of the Coast Range mainly for its eastern boundary, and extends from a
small stream called the Cerrito creek, on the north, to the San Leandro creek,
on the south, a distance of about twelve miles. This was a grant by specific
boundaries, and was surveyed and patented as such.

   To the north and northeast of San Antonio, at a distance of about five miles,
is the Rancho El Pinole. This, as confirmed, surveyed and patented, was a grant
of quantity within larger exterior boundaries. The calls for the exterior
boundaries of this grant were natural fixed objects, leaving no uncertainty as
to the lines thereof.

   San Pablo was a grant of quantity to be located within the boundaries
mentioned in the grant, which were the Ranches of San Antonio, El Pinole, and
the Bay of San Francisco; the southeastern boundary being thus necessarily
uncertain.

   To the east of San Antonio, southeast, of San Pablo, and south of El Pinole,
was the Rancho of Valencia, called Acalanes. It was a grant of quantity, to be
measured within the general boundaries mentioned in the grant as San Pablo, San
Antonio, and El Pinole.

   South of the Acalanes and east of San Antonio was the Moraga Rancho, called
Laguna de los Palos Colorados. It was a grant of quantity, to be measured within
the exterior boundaries described in the Governor's formal grant, which
virtually, though not expressly, called for San Antonio and Acalanes as
colindantes.

   The foregoing brief explanation, and the connected map prepared by the Survey
or-General in compliance with telegraphic order from your predecessor of October
24, 1878, from data on file in his office, which map was certified by the
Surveyor-General November 22,1878, or the map subsequently substituted therefor
by the Surveyor-General, will give a tolerably correct idea of the country
occupied by said Ranchos, and their relative situation both as regards their
exterior and their finally surveyed boundaries; but as to a part of the exterior
boundaries there is some question as to their being accurately delineated on
said maps, which will be discussed hereafter.

   It will be seen that a large tract of land is left nearly surrounded and
bounded by said Ranchos as finally surveyed and patented, in addition to which
there were numerous other smaller tracts excluded by final surveys, not
surrounded by nor lying between said Ranchos, but within the exterior limits of
some of them, most of said tracts being entirely disconnected with the large
tract and with each other, and scattered about in various parts, mainly on the
outskirts of the general tract embraced by the exterior boundaries of the five
Ranchos mentioned in the decree.

   Your predecessor, having decided that the decree confirmed to the Castros all
the surplus land of the Ranches aforesaid—that is, all the land within their
exterior boundaries excluded by final survey—and that the said Ranches were
coterminous as to their exterior boundaries in the central portion in the
general tract embraced by them all, set aside the Minto survey, and directed a
new survey to be made, which should include not only the large tract nearly
surrounded by the Ranches as finally surveyed, but all the other tracts excluded
from the final surveys, limiting his award only by the quantity of twenty-two
square leagues.

   In this, it seems to me, your office did not follow the decree of
confirmation, assuming that the tract confirmed was surplus of some of the said
Ranches resulting upon final survey thereof.

   The error in the decision proceeds from premises, which, to my mind, are not
supported by the relevant facts and the law of the case, to wit, first, that the
word "sobrante," as used in the grant and decree of confirmation necessarily
meant all of the sobrante of said Ranchos, and could not be limited by the words
designating the particular location of the sobrante, nor by the words
designating it as a piece—one piece—of land; and, secondly, that it was a grant
by name of the sobrante, and hence included all of the sobrante.

   It cannot be maintained upon general principles that power was wanting in the
Governor to grant, or in the Board and Court to confirm, as sobrante any portion
of the- surplus of grants of quantity, and define its location and boundaries.
As a matter of fact the records of your office will show that more than one such
grant has been made of the sobrante of a single grant, and the grants thus made
have been confirmed and patented accordingly. Now, that the tract confirmed in
this case, admitting it to be sobrante of some of the Ranchos mentioned in the
decree, was limited, seems clear to me, and that the surveyor has no authority
to locate or survey any land in any other locality than that mentioned in the
decree cannot be successfully questioned. In view of the authorities
hereinbefore mentioned no one will deny that the decree of confirmation must be
the guide in making the survey, or that the surveyor must follow it. In the
United States vs. Fossatt (21 How. 449), the Supreme Court, in speaking of the
powers and duties of the Board and Courts under the Act of 1821, said:

   "But, in addition to these questions upon the validity of the title, there
may arise questions of extent, quantity, location, boundary, and legal
operation, that are equally essential in determining the validity of a claim."

   This doctrine was re-affirmed in the Fossatt case (2 Wall., 707). In United
States vs. Sepulveda (1 Wall., 107 and 108) the Court said:

   "It is true, for the determination of the validity of claims presented, some
consideration must have been had of their extent, location, and boundaries. The
petition of the claimants must necessarily have designated, with more or less
precision, such extent and location."

   In the light of these decisions no one can consistently say that the
Surveyor-General, your office, or this Department can disregard the words of the
decree that point out the locus of the land confirmed, in making or directing a
survey thereof. The decree recites that the land of which confirmation is
thereby made "is the surplus (sobrante) which, on the 23d day of April, A. D.
1841. * * * existed lying between the tracts known as Ranches of San Antonio,
San Pablo, Pinole, Moraga, and Valencia."

   Is it possible that any land that does not lie between those Ranchos can be
surveyed under this decree? By what authority can the Surveyor-General look for
land under this decree, except in that locality?

   But the Commissioner suggests that the words "lying between," etc.,
constitute a false description of the land, and that it grew out of the mistaken
meaning of the words "en las inmediaciones," in the petition for the grant,
which he says were carelessly taken to be translatable by the word "between;"
and he further says that the Board did well to refer for greater certainty to
the original grant.

   The answer to this has already been anticipated. The Board having thus
translated and interpreted the grant, there is no tribunal that has the power to
change it. Certainly it does not lie with the claimants to object to the
translation, for the record shows it to be their own, notwithstanding it was
adopted as the official translation. The regulations of the Commissioners, found
in journal, vol. 1, p. 24, required every claimant to accompany his petition "by
a copy of the original grant and a translation," and the petition of the Castros
shows that this regulation was complied with, and the records do not show that
said copy and translation were rejected or objected to. Unless the Board was to
adopt the translation, if found correct, there was no object in requiring it to
be filed.

   But the idea that there is repugnance in the language of the grant and that
of the decree on this point is not well founded. Referring to the official
translation of the petition and grant, it will be found that the Castros
petitioned for "a piece of vacant land which is situated on" (not "in" as the
Commissioner has it) "the immediate limits (inmediaciones) of San Antonio,"
etc., "which land is the overplus (sobrante) of the ranches aforesaid."

   Here we find that this tract must be "on the immediate limits of" the said
Ranches. Now, from the very meaning of these words, taking the actual situations
of the grants named, the land must lie between them all in the sense of being
surrounded, or partly surrounded, and bounded by them. The word "immediate," as
here used, means "not separated in respect to place by anything intervening."
(See any standard dictionary.) It was one tract that was granted and the same
tract was confirmed; and it was not a tract of land, vacant or otherwise, that
surrounded all these Ranches and bounded their outer limits. The bays of San
Francisco and San Pablo and the strait of Carquinez put an end to such an idea,
even if the absurdity of the proposition in itself does not. Where else, then,
than in the midst of these Ranchos can a tract of land .be found that can lie on
the immediate limits of each and all of the Ranchos named in actual contact with
all of them. There is not the slightest repugnancy between the description in
the grant and that of the decree, so far as the words "lying between" are
concerned.

   But it is urged the word "between" can refer to but two objects, and hence
was not the proper expression to use to convey the idea above expressed. Perhaps
in a literal, narrow sense this may be true; but a definition is given it in
dictionaries like this, "in the immediate space of;" "having mutual relation to
two or more of;" in fact, the word is quite commonly used with respect to more
than two persons or things, as "between us, to go no further, I will tell you
something," the pronoun "us" embracing, perhaps, twenty individuals. But, "qui
haerret in litera haeret in cortice." Such verbal criticisms as are indulged in
upon the words "lying between," as used in the decree, are of little value in
the interpretation of written instruments. The well-known general and
comprehensive rule for the interpretation of written instruments is that where
the intention is clear, too great a stress should not be laid on the strict and
precise signification of words. One who will consider for a moment what other
word can be found to describe the locality of a tract of land surrounded, or
nearly so, by a number of Ranchos, will soon discover that no form of expression
in the English language is better adapted briefly but clearly to define its
location than that it lies between them. But if their could be any doubt as to
what the Board meant by the use of the words " lying between," in the connection
in which they were employed, it would be at once resolved by reference to the
petition and grant, as has already been demonstrated.

   Suppose, however, that the petition and grant did not make clear the terms in
the written decree, and that the Department were required to look beyond them,
then I should turn to the Board's finding of facts in the opinion preceding the
decree. The Board there says that the evidence establishes the fact that the
petitioners presented their expediente for a "sobrante" of land "lying between
Ranchos named in said expediente." If this were not satisfactory, then I should
read the petitions of the Castros to the Board. In the first one they describe
the land as "lying between" the said Ranchos, and, as if to leave no room for
doubt as to what they really meant, in their other petition to the Board they
describe it as "lying in between" said Ranchos. No one knew better than the
Castros where the land was for which they petitioned. Now, with this expression,
so oft-repeated, it seems to me that no other locality than the intervening
space inclosed (or partially inclosed) by all these Ranchos, could be sought for
the location of the piece of land confirmed, even if the original grant did not
so effectually settle the question.

   But there is no confusion in the decree about this matter. The meaning of the
Board and Court as to the locality of the land is plain, especially when the
papers referred to in the decree are read.

   It is hardly necessary to say more on this point. The mere mention of the
rule, which is applicable to this decree as well as to other written
instruments, that the whole instrument must be construed together, so that, if
possible, every part shall stand, that no words are to be rejected as
meaningless and none interpolated or added, would perhaps have been sufficient
to answer all that has been said in favor of the rights of the owners of El
Sobrante to have other land surveyed than that found to lie between the five
Ranchos in the sense in which the Board clearly employed the word "between,"
that is, within the surroundings of the five Ranches; not between any two, or
three, or four of them, but between all of them.

  Whatever the land may be, whether an independent, vacant tract (vacant in the
sense of never having been included within the exterior limits of any of the
Ranches named) or vacant surplus land (sobrante, in the sense of having been
included in some of the exterior boundaries named in the grants, and vacant in
the sense of being subject to grant), it must be found in the locality
designated in the decree as above defined.

  I am supported in this view by the Supreme Court of California. In the case of
Tewksbury vs. Derosier, decided November 11,1881, (The Pacific Coast Law
Journal, vol. 8, No. 17, p. 683,) the Court, speaking of this very decree, said:—

   "The confirmation of El Sobrante was of lands 'lying between the tracts known
as Ranchos of San Antonio, San Pablo, Pinole, Moraga, and Valencia.' The lands
in controversy are not between the Ranchos above named, or any of them. On the
contrary, they are on the shore of the Bay of San Francisco, and between it and
the Rancho San Pablo. They are not even in the vicinity of any of said Ranchos,
unless it be the Ranchos San Pablo and San Antonio."

  The land in question before the Court, and of which the Court was speaking, is
one of the tracts which your office directed to be included in the new survey.

  After so much has been said, it is hardly necessary to discuss the proposition
that this is a grant by name. Surplus is undoubtedly a name, because it is a
noun, but it was not a proper noun as used by the Castros in their petition.
There is nothing in the case to show that it was ever the name of this Rancho at
or before the date of this grant. Sobrante means in English surplus or overplus.
The three words mean the same. There is probably no foreign word that can be
translated into our English with more exactness of definition than the Spanish
word "sobrante" by the English word "surplus." If the Board in its decree had
put in parenthesis the word "overplus," instead of "sobrante," after the word
"surplus," the decree would have meant exactly what it does now, each word being
the exact equivalent of the other. The use of the word "sobrante" in parenthesis
simply shows that the Board translated it by the word "surplus." The Castros
asked for vacant, surplus land.

   Whether surplus of vacant public land left in the general tract occupied by
the five Ranchos outside of and defined by their exterior boundaries, or of that
which should remain within the exterior boundaries, after the quantities of said
grants should be surveyed, will be determined next in order. They did not ask
for a place known by the name of Surplus, or Lo Sobrante, or El Sobrante; but
for a piece of vacant, surplus land. That is all the name the Rancho had. That
does not fill the well-known definition of a Mexican grant, by name of the place
granted, nor the old common law case or illustration of "Black Acre."

   The second proposition above set forth presents more difficult questions than
the one just disposed of.

   The expressed, recorded decree describes the land confirmed as the surplus
"which, on the 23d day of April, 1841, the date of the decree of the concession
to the present claimants, existed, lying between the tracts known as Ranches of
San Antonio, San Pablo, Pinole, Moraga and Valencia."

   The Supreme Court of the United States has, in several instances, described
the different kinds of grants which could be made under Mexican law and
regulations by governors of the Department of California, thus:-— 1st, grants by
specific boundaries where the donee was entitled to the entire tract described;
2d, grants by quantity, as of one or more leagues situated at some designated
place, or within a larger tract described by out-boundaries, where the donee was
entitled out of the general tract only to the quantity specified; and, 3d,
grants, or places by name, where the donee was entitled to the tract named
according to the limits, as shown by its settlement and possession, or other
competent evidence. (Higueras vs. U. S., 5 Wall, 828; Alviso vs. U. S., 8 Id.,
339; and Hornsby vs. U. S., 10 Id., 224.)

   The claim of the Castros, having been decreed to be valid, should belong to
one of the kinds of grants thus defined. It is clear upon the face of the decree
that it was not a grant of quantity nor one of place by name. It therefore
necessarily falls into the category of grants by boundaries; and as no calls are
given for boundaries, except the five Ranchos named, it must be limited by their
boundaries and lie between them all. If this be not so, then, although confirmed
as valid, the claim is void for uncertainty.

   In United States vs. Fossatt (21 How., 449), the Supreme Court said that "in
affirming a claim to land under a Spanish or Mexican grant to be valid within
the law of nations, the stipulations of the treaty of Guadalupe Hidalgo, and the
usages of those governments, we imply something more than that certain papers
are genuine, legal and translative of property. We affirm that ownership and
possession of land of definite boundaries rightfully attach to the grantee." See
also Fossatt's case (2 Wall., 707), and United States vs. Sepulveda (1 Wall.,
107 and 108). In United States vs. Grimes (2 Black, 613), the Court, speaking of
the duty of the Land Commissioners under the Act of 1851, said: "It is their
duty to establish the boundaries as well as the validity of the Mexican grant as
between him (the grantee) and the Government." The Board and Court, then, had
power to fix the boundaries as they did.

   Now, the presumption in favor of the validity of the decree, and that the
Board and Court performed their duties under the law, forces the conclusion that
the decree in some manner indicates the boundaries of the claim with more or
less certainty, which in executing it must be ascertained with reasonable
exactitude; for not to ascertain them would render that void which the Board and
Court have affirmed to be valid; hence the decree must be construed, if
possible, so as not to make void that which has thus been affirmed as valid,
whether the construction be as to patent or latent ambiguity. In doing this, so
far as ascertaining the boundaries is concerned, that which is certain should be
preferred to that which is uncertain.

   Now, as regards these boundaries, the expressed decree seems to be ambiguous,
but the ambiguity is mainly latent, and, wherein it is so, it may be explained
by matters dehors the decree or the documents referred to therein.

   While there may be no uncertainty as to the ordinary meaning of the word
"surplus " or "sobrante," yet, when applied to land, it seems to me that it may
embrace lands differing in condition or status, although it is strongly
maintained that it cannot. The ordinary definition of "surplus" is that which
remains when use is satisfied; excess beyond what is prescribed or
wanted—overplus. Now, was the land confirmed surplus of vacant public land which
was left of the general tract out of which the said five Ranchos were to be
satisfied, and which was never within the exterior boundaries mentioned in the
Governor's grants of the said surrounding Ranchos, and bounded by their exterior
boundaries; or was it surplus of those Ranchos, or of any of them—that which
should remain of the larger tracts when the quantity to which the donees were
severally entitled should be satisfied—bounded by said Ranchos after they should
be measured off and segregated?

   The decree does not clearly state of what the land confirmed was surplus. But
it is insisted that what here may appear to be ambiguitas latens and subject to
explanation by extrinsic evidence is explained by subsequent terms in the
decree, and no other evidence is admissible; that wherein the decree describes
the surplus as that " which on the 23d day of April, A. D. 1841, * * * existed,
lying between the tracts known as Ranchos of San Antonio," etc., the Board and
Court necessarily meant a tract of vacant public land, in the sense of lying
without the exterior boundaries named by the Governor in the grants of said
tracts, and hence surplus of the general tract of public land out of which the
several Ranchos mentioned were taken, and bounded by their exterior boundaries;
that in describing the land as surplus, which existed in 1841, lying between
tracts known by the names mentioned, those tracts must have had known
boundaries, and that a grant of quantity which might be located anywhere within
the exterior limits mentioned would not have been referred to as a known tract.

   But it will be seen that these subsequent terms necessarily lead for
explanation and certainty to matters outside the decree itself. To ascertain
what surplus existed in 1841, we certainly must look to matters not set forth in
the decree. Were the Ranchos mentioned grants from the Mexican Government? Were
they completed grants? Were they grants by names of places, or by specific
boundaries, or of quantity within larger exterior limits? If of quantity, had
they been set off and segregated? If not, what were their exterior boundaries?
These and divers other necessary questions are not answered by the decree, and
the decree itself necessarily refers us to extrinsic matters. This is latent
ambiguity, and the decree is by no means peculiar in this respect.

   It is well settled that even the instruments referred to in the decree cannot
be read to vary the natural import of the language used, if there be no
uncertainty therein, nor to control the description of boundaries that are
certain and free from ambiguity, but only to explain an ambiguity (U. S. vs.
Halleck, 1 Wall., 455; decision in San Jacinto Nuevo y Potrero, above cited),
and the same may be said of all extrinsic evidence resorted to.

   Now, looking at the petition and grant referred to in the decree we find that
the Castros petitioned for "a piece of vacant land which is situated on the
immediate limits (inmediaciones) of San Antonio, San Pablo, Pinole, the farm
(Rancho) of Valencia, and the farm of Moraga, which land is the overplus
(sobrante) of the Ranchos aforesaid." Here we find the land described as both
"vacant" and "sobrante;" but in terms as sobrante of the Ranchos mentioned in
the petition. What is meant by the word "vacant" as used in the petition? Does
it mean land that was vacant in the sense of not being or having been within the
exterior limits of any of the Ranchos mentioned, or vacant in the sense that it
was not occupied by any of the grantees of the said Ranchos, nor claimed as
being included in the quantity to which they were respectively entitled and
hence subject to grant? It would appear from the further description thereof,
"which land is the overplus (sobrante) of the Ranchos aforesaid," that the
latter was meant.

   The Governor granted to the Castros the land of which they made mention in
the petition, and by no other description than that which they had employed,
holding them "under obligation to present themselves anew, accompanied by a map
of the land, so soon as the boundaries of the neighboring Ranchos should be
regulated."

   It would appear from this that the boundaries by which the tract was to be
defined were not then fixed and certain, and that the lines of the neighboring
Ranches had not then been regulated.

   As has been explained, San Antonio was a grant by boundaries, which were as
certain then as now; but San Pablo, Pinole, Acalanes, and Laguna de los Palos
Colorados were grants of quantity, which quantity had not been segregated in
1841. Enough appears in the records of the Land Commissioners to show that as
San Pablo and Acalanes were claimed and occupied in 1841, there was land in the
locality named by the Castros, which would not be taken to satisfy the quantity
to which these grants were respectively limited.

   The establishment of the Castros, owners of San Pablo, was on the part of the
Rancho adjoining the bays of San Francisco and San Pablo, and that of Valencia
was considerably east of the western exterior boundary of the large tract. It
was well known that there was more land lying between these Ranchos as thus
possessed than would be required in satisfying the quantity to which the
respective donees were entitled. The northern limit of Moraga's Rancho would not
interfere with this sobrante. The boundaries of San Antonio and the exterior
boundaries of Pinole, as defined in the grant in 1842, were natural objects; and
if surplus was thrown off of neither of them there would still be a large tract
between them, surplus of San Pablo and Acalanes. Now, if all the exterior
boundaries of San Pablo, Acalanes, and Moraga's Rancho were clear, then there
would have been no difficulty in presenting a map of the sobrante asked for, if
it was composed of a tract bounded by the exterior boundaries of the five
Ranchos mentioned. But it does not appear that it was customary to regulate
exterior boundaries of grants of quantity in the sense of establishing them
permanently. Consideration was, of course, to be given them, so far as to locate
the quantity granted within them; but I think it cannot be questioned that the
boundaries to be regulated were such as defined the quantity of the land
actually granted, and remained as the boundaries of the land to which the donee
was legally entitled under the grant.

   This seems to be the view taken by the Board and the Court; for in the
finding of facts the Commissioners say that Alvarado issued a grant to the
petitioners "requiring them to report a plat of the same as soon as the
adjoining Ranchos could be surveyed and the extent of the sobrante ascertained,
which survey has not been had of said Ranchos so as to enable the petitioners
herein to define with certainty the boundaries of their said sobrante." If the
exterior boundaries of the adjoining Ranchos were the ones to be regulated, then
that could have been done much better in 1841, when witnesses were living who
would be more likely to know of them than those that can be produced at this
late day. Moreover, if the Board had supposed that such boundaries were to be
regulated, then as it was their duty to fix the boundaries with as much
certainty as the case would admit, and having the Governor's grants of the said
Ranchos before them, and living witnesses to point out their boundaries, they
would have found them and set them forth in the decree. But they found that the
boundaries to be regulated were to be ascertained by surveys. No survey, to this
day, has been made of those exterior boundaries of the grants of quantity. When
will the surveys that were to make these boundaries clear and develop the extent
of the sobrainte be made, if the exterior boundaries of the grants were the ones
intended? There will have to be further legislation by the Goverment to
accomplish this, for their is no provision for surveying other than the land
confirmed by the decrees of the Board of Land Commissioners and the Courts, and
the five Ranchos have been surveyed and patented. Undoubtedly the Governor
referred to the regulation of boundaries that took place under the Mexican land
system upon juridical measurement, for that was the "regulation" of boundaries
required by law and ordinance, and which usually was expressly provided for in
grants. In all cases in which the juridical measurement had not been had under
the Mexican Government, this duty of measuring and segregating the lands granted
was transferred to and devolved upon our Government; and it is fully performed
by our final surveys and patents. Our official surveys take (or rather fill) the
place of the juridical measurement required under Mexican law. This has been
settled beyond question by the decisions of the Supreme Court. It would
therefore appear that the boundaries to be regulated or the surveys to be made,
which were to develop the sobrante granted and show its boundaries and extent,
are those carried into the patents of the said Ranchos.

   But suppose this view should be incorrect; then, looking into the condition
of the surrounding Ranchos in 1841, no independent, vacant tract, with certain
boundaries can be found. The San Pablo grant was to be located within the
following limits, taking the description in the Governor's concessions of 1834
and 1835: "Bounded by the Ranchos of San Antonio and El Pinole, and by a portion
of the port of San Francisco." The southeastern boundary, according to these
calls, was clearly not definite and certain. It is suggested that the diseno
accompanying the petition will make the southeastern boundary more certain, but
examination thereof throws very little light on this matter. It will not
indicate from what points on the boundaries of El Pinole and San Antonio a line
should be drawn to form this boundary. The map or deseno here referred to is
found in Volume 2 of maps, Land Commission Records, page 421, on which the
southeastern portion of the tract, within which the quantity was to be surveyed,
is limited only by the border of the map.

   The southeastern exterior line of Pablo, drawn on the Boardman map attached
to the objections of Edson Adams, does not agree with that drawn by the
Surveyor-General upon the connected map hereinbefore referred to.

So it seems that, with all the light afforded by the Surveyor-General's office,
and by actual examination in the field (see Surveyor-General's certificate on
connected map), skilled surveyors cannot to-day agree as to the southeastern
exterior of San Pablo.

   In the third and fourth conditions, both in the decree of 1834 and that of
1835, the donees were to solicit juridical possession of the proper judge, who
should measure the tract according to law, for the purpose of having the
boundaries of the grant marked out, the surplus to remain to the nation for
proper uses.

   But this measurement was not made by the Mexican Government, and it devolved
upon our Government to finish the work that was left undone by the former
Government. Our Government has measured the quantity and given it certain
boundaries. Were not these certain boundaries the ones that the Governor and the
Board referred to as requiring regulation in order to define the boundaries and
show the extent of the sobrante granted and confirmed, rather than boundaries
that are never to be regulated in the sense of being accurately surveyed and
established, that are shown to be uncertain and possibly impossible of
ascertainment?

   Again, take Valencia's Rancho Acalanes. The Governor's grant describes it as
"the tract of land known by the name of Acalanes, bounded by the Ranches of San
Pablo, San Antonio, and El Pinole."

   It is contended that the large tract out of which the quantity granted to
Valencia was to be measured was not bounded by San Pablo, notwithstanding the
calls in the grant; because in limiting the quantity in the fourth condition,
and directing the judge who should give Valencia possession to measure it
conformably to ordinance, the overplus remaining for the use of the nation,
etc., it was said that the tract to be measured was "one league in length by
three-quarters of a league in width, according as is explained on the map,"
which was with the record of proceedings; and the map had written on its margin
that the place asked for was "situated between the arroyo Galindo and the arroyo
Grande," those streams being delineated on the map or diseno. In other words,
that the map on which was sketched the country to the northwest as far as the
coast, should control, instead of the aforesaid calls of the grant, because it
showed the situation of the three-quarters of a square league that was granted
as being between the arroyos aforesaid. Upon this showing it is insisted that a
vacant tract is developed between the line formed by those two arroyos (Galindo
being a tributary to the arroyo Grande or San Pablo creek, with junction
southeast of the claimed southeastern exterior line of the Rancho San Pablo) and
the southeastern exterior of San Pablo.

   Now, if this were true, there would still be the uncertainty as to San
Pablo's southeastern boundary; and it is not clear how this boundary could be
"regulated" so as to define such tract. But the vacant tract disappears,
admitting the arroyos Grande and Galindo to be the northwestern exterior
boundary of Acalanes, for then the southeastern exterior line of San Pablo
becomes certain, and comes up to said arroyos. The grant of Acalanes ought not
to be held repugnant in its terms if they can be made harmonious. Then if the
arroyos Grande and Galindo are the western and northwestern boundaries of
Acalanes, the call expressed in the grant for San Pablo as a boundary should not
be repugnant thereto; and as the southeastern boundary of Pablo was uncertain,
this call brought it to the arroyos aforesaid. But I look upon the language of
the fourth condition in Valencia's grant as simply a more specific designation
of the locality in which the quantity was to be measured, and not as
contradicting the general boundaries within which it was to be located.

   It follows, then, that the mentioned Ranches had coterminous boundaries, and
that the land confirmed was the surplus of some of them that should be defined
by their boundaries as established or regulated by final survey.

   This fulfills the legal proposition that the grant, having been confirmed as
valid, necessarily has definite boundaries; and this was its condition in 1841,
under the well-known rule that in law that is certain which is capable of being
rendered certain. Any other conclusion would result, it seems to me, in
inextricable confusion.

   It is contended that the tract confirmed could not have been sobrante of any
of the grants, because the grantees had the right of possession of the entire
tract until segregation of quantity, and hence the Castros could not have had
possession of other than land not within the exterior boundaries of the grants
of quantity. Such an objection might be made to any grant of sobrante; still
sobrante grants have been confirmed, surveyed, and patented. While it is true,
as held by the Supreme Court in Van Reynegan vs. Bolton (5 Otto, 33), that the
right to make selection of the quantity granted rested exclusively with the
Government, and could be exercised only by its officers, and that until
segregation the grantee had the right of possession of the entire tract within
which the quantity was to be measured, yet the discretion to be exercised by the
officers charged by law with the execution of decrees in such cases was not
arbitrary but reasonable, and was to be so exercised, in view of the record of
the case, the situation of the land, the improvements and possession of the
donees, and all other circumstances proper and necessary to be considered, as to
fulfill the intent and requirements of the decree, and thus do substantial
justice between the United States and the confirmees.

   For example, no survey would be deemed a proper one that excluded the
improvements and actual possession of the donee against his selection of land
thus improved and possessed, provided it was within the boundaries called for.

   Now, notwithstanding the donees of the grants of quantity in the case might
have had the right of possession to the limits of the larger tracts, yet they
did not object to the occupancy and possession of the Castros in this case. Why
they permitted the Castros to occupy the land is not a matter of just concern of
this department. The Castros received a concession of a tract of vacant, surplus
land, and the claim thereunder has been confirmed, and the regulation of
boundaries of the neighboring Ranches has developed such a tract in the place
called for in the grant and decree. Beyond this it is not profitable or
pertinent to inquire.

   A tract or piece of land, no portion of which shall lie east of the western
line of Acalanes, or south of the northern line of Moraga, or west of the
eastern lines of San Antonio and San Pablo, or north of the southern line of El
Pinole, as those lines have been established by the final surveys and patents of
said Ranchos, will substantially fulfill the decree, and do justice according to
the record of the case as between the United States and the owners of the
sobrante grant.

   The next question for consideration is, should the survey of El Sobrante
embrace any portion of the Rancho La Boca de la Canada del Pinole?

   As regards the La Boca tract, it is contended by the owners of the sobrante
title that it was a part of the sobrante which existed April 23, 1841, and which
on that date was granted to the Castros, and subsequently confirmed to them
under the act of 1851; that as it is the duty of the Surveyor-General to follow
the decree of confirmation, he has no right to look at the fact that said tract
has been patented in making survey of the Sobrante; that it is the duty of the
Land Department, under the act of 1864, to include in the survey all the lands
included in the decree.

   Against this the owners of the La Boca tract refer to the fact that the
survey of their claim was ordered into Court under the act of 1860 (12 Stats.,
33); that the owners of El Sobrante intervened in that matter and were made
parties thereto; that the decree of the Court approving the final survey of that
claim was entered by consent of all the parties; and that, therefore, the
Sobrante claimants are estopped from demanding that any portion of the La Boca
shall be included in their survey, and your predecessor so decided. Cases are
cited as supporting this proposition.

   As against this position, the sobrante owners, some of them at least, argue
in effect that under the act of 1851 the Land Commissioners and Courts had no
jurisdiction to adjudicate upon title as between third parties, but only as
between the United States and claimants; that the primary object of the said act
was to separate lands owned by private individuals from the public domain; that
confirmation under the act of 1851 simply affirmed that the land embraced by the
decree was private land; that the patent of the United States under said act is
but a relinquishment of claim, or a quit-claim, to the tract confirmed, and
record evidence of the action of our Government upon the claim, operating by
relation from the time when the claim was presented to the Board of Land
Commissioners; that such patent is simply conclusive as between the United
States and the claimants and the privies of the respective parties; that the
District Court of California, under the act of 1860, had no greater
jurisdiction, to say the least, than the tribunal created by the act of 1851,
for ascertaining and settling private claims; that the matter before the Court
under the act of 1860 was simply upon the question of the correctness of the
survey, in other words, to determine the question as to whether the survey was
an execution of the decree of confirmation, the same as that of the
Surveyor-General now under the act of 1864, or formerly under the act of 1851;
that parties to proceedings before the Court upon approval of a survey under the
act of 1860 are only bound by the decrees, and estopped as to the subject-matter
before and within the jurisdiction of the Court, and that all questions of title
between third parties, claiming under grants of Mexican origin were necessarily
referred to the judiciary; and cases in support of these propositions are cited.

   The foregoing statement is made in order to develop the positions of the
contending parties in this matter. However, I do not think myself called upon,
as I understand the case, to decide or express an opinion as to which is the
correct one. It would undoubtedly be necessary to decide the question were it
shown that the land patented as the La Boca de la Canada del Pinole was vacant,
sobrante, land within the meaning of and embraced by the decree in the Sobrante
case. To my mind not only is this not shown, but it seems to me that the records
of your office and of the Surveyor-General's office show beyond question that
the land patented to the La Boca claimants was not vacant, sobrante, or surplus
of any of the five Ranches mentioned, existing as such April 23, 1841, within
the true intent and meaning of the decree of confirmation of this case.

   The records prove with reasonable clearness that it was neither vacant nor
sobrante at that time, and it was well said by one of the contestants in
argument, that as the Government has patented the La Boca, the survey of the
Sobrante should not, in any view of the case, invade such patented territory
except upon clear proof that the land so patented is embraced by the decree of
confirmation to the Castros.

   The question whether the La Boca was vacant and sobrante or surplus land of
any of the Ranches mentioned in 1841, and is embraced by the decree of
confirmation, is one to be determined by the officers or tribunal upon whom the
duty of executing the decree is imposed by law; as only vacant, surplus land,
within the meaning of the decree, can be surveyed.

   In the first place, the La Boca was not a grant of the surplus or sobrante of
El Pinole, or any of the other Ranchos mentioned as boundaries of El Sobrante.
It was not a sobrante grant in any sense, according to its terras; but it was a
grant of quantity to be surveyed within designated boundaries.

   The Land Commission record shows that Ignacio Martinez claimed to have
received a grant of the place called El Pinole as early as 1823; he so
represented to the Mexican authorities in 1834, stating that he had lost his
title papers, and soliciting a renewal of the same. Record evidence was not
found to support his allegations, and he was required to petition anew, which he
accordingly did November 10, 1837, stating that as he had mislaid or lost the
grant issued to him in 1823, and as it was impossible for him to make it appear
that such a grant had been made, he was under the necessity of making a second
petition. In this petition he described the land as "three sitios, which are '
Canada del Pinole,' and that which is called 'La Hambre,' straits of Garquinez,
running towards the 'Mar de la Norte,' that is called the Bay of Sonoma,
adjoining the mouth of the same Canada del Pinole, as is explained in the
adjoining plan." For reasons set forth in the petition he asked for an
additional league. (Record of Evidence, vol. 15, p. 427.)

   Thus it will be observed there was nothing in the archives of the Mexican
Government in 1837 designating boundaries to the place known as El Pinole; and,
as proceedings on the petition of Martinez were pending in 1841, when the grant
was made to the Castros, and were not terminated until June 1, 1842, when the
first and only recorded grant to Ignacio Martinez was issued, it follows that El
Pinole had no boundaries recognized by the Mexican Government in 1841, and
consequently that the boundaries declared in the grant to Martinez, in 1842, are
the true boundaries of El Pinole, within which the four leagues granted to
Martinez were to be surveyed, and within which the boundaries of quantity were
to be regulated, as provided in the grant and decree in the sobrante case. That
these boundaries did not include La Boca de la Canada del Pinole will appear
from what follows.

   While proceedings were pending upon the petition of Ignacio Martinez, Felipe
Briones, on the 24th day of July, 1839, petitioned for the grant of the place
known by the name of El Pinole, stating that it was then more than ten years
that he had possessed said place, comprising three "sitios de ganado mayor,"
more or less, as designated upon the plan accompanying the petition. Briones
further alleged that he had built a house on the land prayed for, "planted a
garden of much consideration, and cultivated some lands," by which and "some
milking cattle" he had maintained his family, composed of eighteen persons. This
petition was referred to Ignacio Peralta, a Justice of the Peace, who reported
thereon July 29, 1839, that the Rancho. of El Pinole had been occupied by Don
Ignacio Martinez since 1824, by order of the Governor pro tem., Don Luis
Arguello, and that Briones, in his petition, did not make mention of the land
that he (Briones) had occupied, called "El Corral de Galindo," where he kept his
cattle, and hence that it would appear as though his petition operated
injuriously by asking for the Canada del Pinole, and not stating that he held
the aforesaid "Corral de Galindo." Peralta further reported that Briones went on
the land under an arrangement with Martinez, entered into in 1831, the parties
"agreeing that their ends should meet"; that Briones "should assist at rodeos,
and place his small houses immediate for company."

   The report of Peralta does not make it clear whether Briones intended to
procure a grant of all the land occupied by Martinez and himself, or only for
that occupied by himself, giving the land he desired the wrong name. But the
tract called " Corral de Galindo " embraced a part of the Canada of Pinole, and
it is probable that Briones intended to ask for the land occupied by himself,
known as well by the name of La Boca de la Canada del Pinole and San Felipe, as
Corral de Galindo, as facts hereinafter mentioned will show. However this may be
the matter of the several petitions was pending when the Governor made the grant
to the Castros, and was not finally settled until more than a year afterward by
the issuance of grants to Martinez and the widow of Briones, respectively,
(Briones having died about the year 1840.) That the Governor considered Briones
entitled to the land occupied by him, and so decided before he issued a grant to
Martinez; that Martinez so understood the matter, and acquiesced in the
Governor's decision; and that it was well understood that the tract known as La
Boca de la Canada del Pinole, in the possession of Briones, was not included
within the exterior boundaries named by the Governor in his grant of El Pinole
to Martinez, will appear from the following:

   On the 1st of June, 1842, evidently having in view both of the petitions of
Martinez and Briones, and of the report of Peralta, the Governor, Alvarado, who
made th'e grant to the Castros, issued a grant to Ignacio Martinez. In the
concession of that date, the tract within which the quantity was to be surveyed
was described as "commencing at the mouth of the Canada del Pinole, eastwardly
along the same until it adjoins with the Corral de Galindo, from this place to
La Canada de la Hambre, and from thence to the straits of Carquinez."

   In the formal title issued the same day the four square leagues granted were
to be surveyed within the following boundaries: " By the name of Pinole, its
limits being from the mouth of the ravine (Canada) of the same name, in an
easterly direction by the same until it joins with the 'Corral de Galindo;' from
this place to the Canada de la Hambre, and along the same to the Straits of
Carquinez, the boundaries to terminate at the mouth of said Canada del Pinole
into the Bay of San Francisco."

   Evidently this description was not to include the "place" called "Corral de
Galindo," otherwise La Boca, etc. The ravine (Canada del Pinole) was to be
followed until it adjoined with the "Corral de Galindo; from this place to the
Canada de la Hambre," etc.

   The same facts appear, and are placed beyond doubt by the language of the
grant to the widow Briones, made twenty days after the grant to Martinez.
    

   The grant to Maria Manuela Valencia, widow of Briones, was made upon her
petition of the 8th of June, 1842, in which she set forth interalia that she was
the " widow of the late Felipe Briones, and established in the mouth of the
Canada of Pinole (en la Boca de la Canada del Pinole);" that for more than
eleven years she had " lived in peaceable possession of said place, with a
considerable amount of stock, consisting of four hundred head of cattle, having
also an adobe house, and more than one thousand grapevines, together with some
fruit trees;" and she prayed the Governor to concede to her " the legal
ownership of the said place, containing three square leagues, as shown by the
accompanying diseno." The accompanying diseno distinctly called for the land of
Ignacio Martinez as a northwestern, northern, and northeastern boundary (see
Record of Maps. vol. 2, p. 489). Her allegations accorded with those of her
husband in his petition of 1839 as regards possession and the length of time
that the Briones' family had occupied the place, as also with the report of
Peralta upon the petition of Briones. The widow's petition, having been referred
to the proper judge for investigation and report, was presented to Ignacio
Martinez, adjoining owner, who stated concerning the same, June 13, 1842, as
follows: "The Senora Manuela Valencia,who petitions for the place, as shown by
the annexed diseno, is worthy of being heard, and what she asks may be granted
to her, since it does not prejudice my land." (The underscoring in the foregoing
quotation is my own.)

   On the 14th of the same month, the Judge to whom the petition was referred,
Guillermo Castro, reported that, in view of the report of Ignacio Martinez, the
tract asked for might be granted to the petitioner.

   On the 21st of June, 1842, the land was granted to the widow of Briones, the
Governor stating that, in view of the petition, the foregoing reports, "and all
other matters necessary to be considered (the other matters necessary to be
considered undoubtedly included the former petition of Briones and Peralta's
report thereon), Dona Maria Manuela Valencia is declared owner of the place
named in Boca de la Canada de Pinole, bounding with the Rancho of Don Ygnacio
Martinez, with that of Don Julio Wil, and with that of Candelario Valencia;" and
in the formal grant of the same date the land is described by the same
boundaries, being limited in the third condition to three square leagues, as
shown by the diseno annexed, the sobrante remaining to the convenient uses of
the nation. (Exhibit 32, Adams, from the archives in the Surveyor-General's
office.) In bounding the general tract out of which the quantity should be
surveyed to Mrs. Briones with "the Rancho of Don Ygnacio Martinez," the
boundaries of El Pinole, as declared by the Governor a few days before in the
grant to Martinez, were unquestionably meant.

   When this claim was before the District Court upon petition for confirmation,
the testimony of Jose de Jesus, son of Ignacio Martinez, was taken. Being asked
what he knew in regard to the boundaries of the tract, the witness stated that
on the north it was bounded by the Rancho of Ignacio Martinez, father of the
witness, called El Pinole; that the original map (diseno} was made by him in
1841, and that it was correct; that it was the original map presented by Dona M.
M. Valencia to the Governor when she petitioned for the land, and that he made
it for that purpose; and that when he made it the houses, corral and garden were
on the Rancho as represented on the map. The witness further stated that he
became acquainted with the boundaries of La Boca by going over the land with a
son of Mrs. Briones for the purpose of making the map; that he had lived on his
father's Rancho since April, 1830, and ridden over the La Boca Rancho "thousands
of times," and that he was well acquainted with everything connected with it.
(Exhibit 58, Blum, from archives in Surveyor-General's office.)

   From the foregoing I conclude that the La Boca Rancho was not within the
boundaries of El Pinole as established by the Governor's grant in 1842, the
first official definition of the exterior boundaries of that place. And taking
the facts above stated in connection with the testimony of William Richardson,
(vol. 5, 245, Evidence), C. Briones, and Napoleon B. Smith, (vol. 4, pp. 561 and
720, Evidence), delivered to the Board in the case of El Pinole, and the
location of the tract called Corral de Galindo, and the Cuchilla de Chemisal, as
laid down on the connected map hereinbefore mentioned and on the official map of
Mr. Minto's survey, it would appear that the northern patented line of La Boca
very nearly represents the calls of the grant and decree in the Pinole case for
Pinole's southern exterior boundary in this locality. It follows, therefore,
that La Boca was not surplus (sobrante) of El Pinole, and as the District Court
decreed the claim of Mrs. Briones to be good and valid to the land known, by the
name of " La Boca de la Canada del Pinole " to the extent of three square
leagues " within the boundaries so described in the grant and map on file in the
records," and as the grant and diseno call for Acalanes and Pinole for
boundaries, and as Acalanes calls for Pinole as one of its boundaries, it
necessarily follows, from the situation of these several grants, that La Boca
was not surplus of any of the five grants mentioned in the grant to the Castros
of 1841, the presumption of law being that La Boca was located within the
boundaries called for in the decree of confirmation.

   Again, La Boca was not vacant land in 1841, within the meaning of the decree
of confirmation in the sobrante case. The evidence in the case of the La Boca
upon petition for confirmation, as well as that of Jose de Jesus Martinez,
hereinbefore referred to, and that of Peralta in his report, show a continued
occupancy and possession from about 1831 till long after April, 1841, by the
Briones family, the widow continuing in occupancy and possession after the death
of her husband, and that the land was improved by them as alleged in the
petitions therefor of 1839 and 1842. It was the very land occupied and in the
possession of her husband that Mrs. Briones petitioned for, and it makes no
difference whether it is called La Boca de la Canada del Pinole, San Felipe, or
Corral de Galindo.

   In the opinion of the Board in that case, it was stated that the depositions
on file showed a long residence on the land by the grantee, and established very
clearly a substantial compliance with the conditions of the grant, and that the
only obstacle to confirmation was to be found in the proof of boundaries. The
decree of the Board rejecting the claim was reversed by the District Court, and
the claim was decreed to be good and valid, and it has been surveyed and
patented accordingly.

   It was manifestly against the policy of the Mexican Government to grant lands
to one party that were improved and in possession of another; and petitions were
referred to the proper magistrate for the purpose of ascertaining whether they
called for lands occupied by others. In the very matter of the petition of
Martinez it is seen that, although he asked for land by the name of a place that
might have embraced the establishment of Briones, and Briones had no grant from
the Government, yet the possession of Briones was recognized as well as that of
Martinez, and the land possessed by him was carefully excluded from the grant to
Martinez.

  Now, as the Governor recognized and protected the possession of Briones; as
that possession was continued by his widow, and was of the same land; as
proceedings were pending before the Government for a grant of this land at the
time of the grant to the Castros; as upon the death of Briones the claim for the
grant was continued in the name of his widow, she alleging the possession that
had continued since 1831; and as the grant to the widow was made in view of all
the proceedings mentioned, and necessarily in consideration of the uninterrupted
possession of the Briones family since 1831, it follows that the possession was
not a trespass. The presumption is that the final survey followed the decree of
confirmation; that it embraces the quantity of land thus possessed as limited in
the decree; that it correctly shows the boundaries thereof, and that the land
was surveyed within the boundaries mentioned in the decree; and, as the
possession which continued from 1831 was not a trespass, it extended to the
boundaries of the claim as surveyed and patented; all of which results in this
conclusion: That in 1841 the land surveyed as the Rancho La Boca de la Canada
del Pinole was not vacant.

   Finally, it seems to me that the Mexican authorities, having jurisdiction in
the premises, decided, in 1842, that the land known as La Boca de la Canada del
Pinole was not embraced within any former grant. The reference of the petition
of Mrs. Briones to the auxiliary Judge of Contra Costa required him to report
whether "the land referred to belonged to any individual, with all other matters
that may be necessary." His report, as well as that of Martinez, and that of
Estrada, the Senor Prefect of the district, and the action of the Governor
thereon in making the grant to Mrs. Briones, which, he stated, was in
consideration of those reports, and all other matters necessary to be
considered, amounted to a decision that the land granted was not included in any
former grant.

   In view of the facts and the legal conclusions relative to this matter, it
would be just as consistent to hold that the land surveyed under the grant to
Martinez was vacant sobrante land in 1841, as to hold that that which was
surveyed under the Briones grant was vacant sobrante land at that time; and the
survey of El Sobrante might as well include the one tract as the other. The
grants of Pinole and La Boca are precisely similar in character, and were
virtually the result of the final determination of the same proceedings before
the Mexican Government pending and undecided April 23, 1841.

   I therefore decide that no part of the Rancho La Boca de la Canada del Pinole
should be embraced in the survey of the Rancho El Sobrante.

   The Minto survey not only embraces the larger portion of the La Boca, but
also a small part of the Rancho Laguna de los Palos Colorados (Moraga's claim)
as patented, and does not include all of the land embraced in the decree as
herein construed. It is therefore set aside.

   The remaining question is with regard to the tract marked "No. 7" on the
Boardman map, and as public land on the Minto plat of survey of El Sobrante. I
do not consider that that tract lies between the five Ranches mentioned, within
the meaning of the decree, and it will accordingly be excluded from the final
survey.

   You will therefore direct a new survey to be made of the following
boundaries: Beginning at post S. P. No. 67, at the terminus of course No. 195 in
the patented line of the San Pablo Rancho; thence in a direct line to post P. R.
No. 4, terminus of course No. 4, in the patented line of El Pinole Rancho;
thence with the patented line of El Pinole to a point therein at which the
westernmost line of the Rancho La Boca de la Canada del Pinole as patented
extended northwardly intersects said line of El Pinole; thence with the patented
line of the Rancho La Boca de la Canada del Pinole to the point at which the
western patented line of Acalanes intersects the same; thence with the said line
of Acalanes to the north patented line of the Rancho Laguna de los Palos
Colorados; thence with the last-named line and the same extended west to the
eastern patented line of the Rancho San Antonio; thence northward with the
patented lines of the Ranchos San Antonio and San Pablo to the place of beginning.

   The decision of your office is modified accordingly, and the papers of the
case are herewith returned.        Very respectfully,
                                            S. J. KIRKWOOD,
                                                   Secretary.



Additional Comments:
Extracted from:

HISTORY OF CONTRA COSTA COUNTY,
CALIFORNIA,
INCLUDING ITS GEOGRAPHY, GEOLOGY, TOPOGRAPHY, CLIMATOGRAPHY AND DESCRIPTION;
TOGETHER WITH A RECORD OF THE MEXICAN GRANTS; THE BEAR FLAG WAR; THE MOUNT
DIABLO COAL FIELDS; THE EARLY HISTORY AND SETTLEMENT, COMPILED FROM THE MOST
AUTHENTIC SOURCES; THE NAMES OF ORIGINAL SPANISH AND MEXICAN PIONEERS; FULL
LEGISLATIVE HISTORY OF THE COUNTY; SEPARATE HISTORY OF EACH TOWNSHIP, SHOWING
THE ADVANCE IN POPULATION AND AGRICULTURE;
ALSO,
Incidents of Pioneer Life; and Biographical Sketches
OF EARLY AND PROMINENT SETTLERS AND REPRESENTATIVE MEN;
AMD OF ITS TOWNS, VILLAGES, CHURCHES, SECRET SOCIETIES, ETC.
ILLUSTRATED.
SAN FRANCISCO: W. A. SLOCUM & CO., PUBLISHERS
1882.


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