Contra Costa County CA Archives History - Books .....U. S. Vs Rosa Pacheco, Et. Al. 1882
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ca/cafiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Joy Fisher sdgenweb@gmail.com November 22, 2005, 8:50 pm

Book Title: History Of Contra Costa County, California

   THE UNITED STATES, Appellants, vs. ROSA PACHECO et al, claiming the Rancho
Arroyo de las Nueces y Bolbones.—Claim for two leagues of land, more or less, in
Contra Costa county, confirmed by the Board of two leagues, and appealed by the
United States and by claimants. In this case appeals have been taken both by the
United States and by the claimants. The Board confirmed the title to the land to
the extent of two leagues, and the claimants assert that they are entitled to a
confirmation of the tract granted by metes and bounds, and irrespective of
quantity. With regard to the validity of the grant no question seems to be
raised. In the brief filed on the part of the United States it is observed that,
"on the general question of the validity of the whole grant, it is not designed
to repeat objections and arguments which this Court has so often decided to be
untenable." The validity of the title being thus admitted, under the principles
laid down in former adjudications of this Court, the only question is as to the
extent to which it should be confirmed. The petition was presented to Governor
Figueroa on the fifteenth of May, 1834, and the usual order of reference for
information was made. After receiving the report of the Ayuntamiento of San Jose
Guadalupe, a further reference was made to the Alcalde of Monterey, directing
him to examine witnesses, to be produced by the petitioner, as to her
qualifications, as to whether the land was vacant, as to its extent and nature,
and as to whether she had the means of stocking it with cattle. The Alcalde
accordingly took the depositions of the witnesses, by which it appeared that, as
stated by two of them, the land was two and one-half leagues, "a little more or
less," long, and about two leagues broad; and as deposed by the third, that it
was two leagues long, more or less, and about two leagues broad. Upon receiving
these reports, the Governor made the usual order of concession, declaring this
petitioner "owner of the land between the Arroyo de las Nueces and the Sierra de
los Golgones, bounded by the said places and by the Ranches of San Ramon, Las
Juntas and Monte del Diablo," and directing the expediente to be sent to the
Most Excellent Deputations for their due approval. The grant or final title, in
what would seem to be strict compliance with the colonization laws, was withheld
until the approval of the Assembly had made the grant definitely valid. On the
eleventh of July, 1834, the Assembly passed a resolution approving "the grant
made to Dona Juana Sanches de Pacheco of the place included between the Arroyo
de las Nueces and the Bolbones." On the thirty-first of July, the Governor,
after referring to the resolution of approval, ordered the title to issue. It
accordingly issued on the same day. The grant, after reciting that Dona J. S. de
Pacheco had petitioned for the land included between the Arroyo de las Nueces
and the Sierra de los Golgones, bounded by the said places and the Ranchos de
las Juntas, San Ramon and Monte del Diablo, and after referring to the
resolution approving the grant of the land between the Arroyo de las Nueces and
the the Sierra de los Golgones, grants to her "the aforesaid land, declaring to
her the ownership of it by these presents, and subject to the following
conditions." The fourth condition is as follows: "The land of which mention is
made is two square leagues, a little more or less, as shown by the map which
goes with the expediente. The magistrate who may give the possession will cause
it to be measured in conformity with the ordinance, for the purpose of making
out the boundaries, leaving the surplus which may result to the nation for its
convenient uses." It is contended on the part of the United States that by this
condition the quantity of land is limited to two leagues, a little more or less.
It is urged on the part of the claimants, that the original order of concession,
the resolution of approval, and the description of the land in the grant itself,
clearly show the intention to have been to grant the land as delineated on the
diseno and described in the grant; and that if the fourth condition be construed
to limit the quantity, it is repugnant to the rest of the grant, inconsistent
with the previous concession and resolution of approval, and probably introduced
by mistake. If such was the intention of the Governor when he made the
concession, and of the Assembly when they approved of it, the final title,
issued with an express reference to, and avowed conformity with the resolution
of approval, should, if possible, be so construed as to give effect to it. The
inquiry therefore is, did the Governor intend by the fourth condition to limit
the quantity of land granted, or is the mention of quantity to be treated as
merely a mis-description of the extent of the land, which should, as at common
law, yield to boundaries, when the latter are distinctly mentioned, and when
such construction is necessary to give effect to the intention of the parties?
In the case of the United States vs. Wright, it was held by the Court that where
land had been granted by specific boundaries, which included in fact about eight
leagues, and the condition specified the extent as four leagues, a little more
or less, the grant could not be construed to embrace the larger quantity. But in
that case it appeared that the petitioner himself, as well as the witnesses
produced by him, had represented the land as only "three or four leagues in
extent." The  Governor, therefore, in limiting the grant to the quantity
represented to be included within the boundaries, either merely carried into
effect the understanding and intentions of all parties, or else the
representations were fraudulent, and the parties to the deception could not in a
Court of Equity be allowed the fruits of their fraud. It seemed to the Court in
that case that justice would be satisfied and every substantial right protected
by limiting the extent of the land to the quantity which the Governor intended
to grant and the petition asked for. But the case at bar is different. The
Governor was fully apprised of the extent of the land, not only by the testimony
of the witnesses produced before the Alcalde, but the diseno which was submitted
both to the Governor and the Assembly, and which  is referred to in the
condition, shows the land included within the boundaries to be of about the
extent mentioned by the witnesses. The boundaries mentioned in the concession,
the resolution of approval, and the grant, are the same as those indicated on
the map, and the Governor, in all probability, derived his description of the
land from that source. It is clear from this fact, as well as the express
language of the condition, that the Governor intended to grant the land "as
shown by the map;" and that map contains a scale which must, independently of
other information, have apprised the Governor that the quantity was greater than
two leagues, In this, as in all analogous cases, the only object of the Court
should be to carry out the instructions of the granting power. When, therefore,
we find the land granted by specific boundaries, and those boundaries
represented to the grantor to contain a certain quantity; when the grantor's
attention has been directed to the point; and on ascertaining that the quantity
is the same as that represented, he nevertheless proceeds to grant all the land
within those boundaries, and refers to the map which clearly indicates the
quantity—under all these circumstances, we must consider that the intention was
to grant all the land included within the boundaries, notwithstanding that in a
subsequent condition the quantity may be erroneously stated. That conditions
applicable only to one species of grants were often asserted by mistake in
grants of a different species is notorious. In this case the mention of two
leagues as the extent of the granted land is, perhaps, owing to the fact that
the clerk who drafted the document forgot that a tract two leagues broad by two
wide contained four and not two square leagues. However this may be, we think it
clear that in this case all the land within the boundaries was intended to be
granted; and as there is no proof or suggestion that the land so included
exceeds in extent the quantity testified to by the witnesses before the alcalde,
that the claim should be confined to the tract as described in the grant and
delineated on the map. (June Term, 1856.)

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.


File at: http://files.usgwarchives.net/ca/contracosta/history/1882/historyo/usvsrosa29ms.txt

This file has been created by a form at http://www.poppet.org/cafiles/

File size: 9.8 Kb