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We are fortunately able to determine with certainty the location of Paraja de los Prietos. Its location on the Thompson and Norway surveys agrees with its location in the survey of the rancho San Marcus; and that such location is correct is admitted by both claimants and contestants in this case. The location of this place as a western boundary also establishes that the cañon Najallagua of the diseño is the cañon through which runs the river Santa Ynez. I am also convinced that the marks on the diseño designating the width of the cañon Najallagua represent the immediate valley of the Santa Ynez, as shown both on Thompson and Norway's surveys. The true north and south boundary is more difficult to locate, though, according to the diseño, those boundaries are the first continuous range of hills or mountains running parallel with the Santa Ynez that are found going north and south from the narrow valley through which that river flows. On the north such a continuous range is shown on the plat of Thompson's survey, about eight miles south of the northern line of the rancho, as there represented, but on the south no such range appears on said plat north of the Santa Ynez or Santa Barbara mountains. The exact location of the northern boundary I shall not attempt to define further, for it cannot be established with certainty without more information with regard to the topography of the country than is contained in the record, though such boundary, as thus indicated, may easily be found on the ground by a surveyor; but on the south I am convinced the marks on the diseño were intended to indicate the range known as the mountains of Santa Ynez or Santa Barbara. This appears, as well from the report of Mr. R. C. Hopkins and the various surveys of that locality as from the affidavit of Dominguez, the grantee of the Mexican government. Hence I adopt as the true southern exterior boundary of this rancho the northern foot of the said range of mountains.
The theory of the claimants in the case, that the northern or southern slope of this range is included within the grant of Najalayegua, is, in my opinion, untenable. In the case of the rancho Caslamayomi, decided by this Office December 15, 1873, and affirmed on appeal August 13, 1874, by the Acting Secretary of the Interior, it was held that where the calls for boundary were hills or mountains, the foot of such hills or mountains was meant, and I see no reason why the same rule should not apply where, instead of being clearly described by words, such a boundary is indicated solely by rough scratches of a pen. An example of this kind may be found in the case of the rancho La Goleta, the diseño of which shows on the north a portion of the identical mountain now claimed by Najalayegua, yet the grant of La Goleta extended only to the foot of the mountain, and to that extent only was it surveyed and patented by the United States With respect to this theory of claimant attention is called to the facts, first, that in February, 1843, while Dominguez's application for a grant was pending, he bought of one Lugo a tract of land on the southern slope of this mountain, and within the limits of Najalayegua, as now claimed; second, that the Najalayegua, as now claimed, on said southern slope, surrounds the buildings of the Mission of Santa Barbara, and bounds on the north the Pueblo of Santa Barbara, whereas in the espediente of Najalayegua the tract petitioned for is described as "alone occupied by wild animals," and no mention whatever is made either of the buildings or lands of the said Mission, or of the lands of the said Pueblo; third, that although the rancho La Goleta was petitioned for
and granted in 1846, after the date of the grant to Dominguez, and although a portion of the mountain now claimed as Najalayegua was made a boundary of La Goleta, yet no reference is found to Najalayegua in the espediente of La Goleta, though the other tracts bounding it, namely, Nicholas Den's rancho, Los Pueblos and the Mission property, are thereon clearly described. That the espediente of Najalayegua would give no further description of the southern boundary of that grant than a few marks of a pen on a rudely constructed map is highly improbable, if, in fact, that boundary was such well known tracts of land as the Mission lands or of the Pueblo of Santa Barbara; nor is it probable that in the espediente of La Goleta the north boundary of that rancho would have been designated generally as mountains if, in fact, the north boundary had been the Najalayegua. The fact, referred to in argument, that only one slope, and that the southern slope of this south boundary, was shown on the diseño, proves nothing, nor does it, in my opinion, raise any presumption that such slope was intended to be included in the grant. In the absence of anything in this case specially to show such a design on the part of the maker of this diseño, no such presumption could arise unless it were shown to be a general custom in making such maps to thus represent hills or mountains intended to be petitioned for. As a matter of fact, however, these diseños were usually made by the petitioner for the grant or some one of his neighbers, and hence each diseño is sui generis in its designations of natural objects. It may be added that it was formerly the practice of engravers on steel to shade one side only of designations of mountains. (See map of China, 1st American ed., printed in Philadelphia in 1832, of "New Edinburgh Encyclopedia.")
The eastern boundary, as shown on the diseño, is the Arroyo de Carpenterie, and the record shows that the Carpenterie is a well-known stream running wholly south of the Santa Barbara or Santa Yenz mountains, and along the north western boundary of the rancho El Rincon, granted by the Mexican authorities June 22, 1835, and patented by the United States November 22, 1872. It is thus evident that, going from Santa Ynez river, we cannot reach the said Carpenterie creek without crossing over a mountain range from two thousand to four thousand feet above the level of the sea, and which we have already determined to be the south boundary of the Najalayegua. The reason for this difference between the location of Carpenterie on the diseño and its actual location is found in the affidavit dated 8th May, 1874, of Dominguez, in which he states that "the Arroyo Carpenterie was marked on said diseño by guess as being in that direction, and without my personal knowledge of its exact position." Either the Carpenterie creek or the said mountain range must therefore be rejected as a boundary, and in rejecting one of those boundaries this Office must retain that which best satisfies the intent of the grant and confirmation. This, in my opinion, is the Santa Barbara range of mountains; for, omitting altogether the statement contained in Dominguez's affidavit before referred to, that he "claimed no land on the south side of the mountain bordering on the Pueblo lands of Santa Barbara," I am satisfied that the Najalayegua never reached the southern slope of said mountains, and hence never reached the Carpenterie. In addition to what has already been said relative to the extension of Najalayegua south of this mountain range, attention is called to the fact that the Arroyo Carpenterie is one of the boundaries of the rancho El Rincon,
which rancho had been granted and its boundaries measured under the Mexican Government years before the Najalayegua was petitioned for by Dominguez, yet the espediente of Najalayegua contains no reference. to El Rincon.
The eastern boundary of Najalayegua will be about the same, whether such boundary be found by running a line due north from Carpenterie creek, or by finding the point on the east where the southern boundary intersects the range of mountains coming down from the north, and marked on Thompson's plat, "San Rafael range of mountains." It is evident, however, that the cañon "Nallagua" of the diseño could not extend farther east than this San Rafael range, and I, therefore, adopt said range on the east, as shown by the plat of Thompson's survey, as the true eastern cxterior boundary of this claim.
It is, therefore, decided by this Office that the exterior boundaries of the rancho Los Prietos y Najalayegua are as follows: On the north the southern foot of the first range of hills or mountains running east and west, north of the narrow valley, through which runs the river Santa Ynez; on the south the northern foot of the range known as the Santa Barbara or Santa Ynez mountains; on the west the point established as a western boundary by Thompson's and Norway's surveys, and on the east the San Rafael range of mountains, as shown on the plat of United States Deputy Surveyor Thompson's survey of Najalayegua. Within these boundaries the claimants may select in compact form the eleven square leagues to which they are entitled, provided such selection be made within a reasonable time. If, however, the claimants neglect or refuse to make such selection, you will proceed to make a survey of this rancho at the expense of the United States, in accordance with instructions of July 8, 1874, from this Office, said survey to contain eleven square leagues within the exterior boundaries above set forth.
You will give notice of this decision to all parties in interest, allowing sixty days from the service thereof for appeal to the honorable Secretary of the Interior, and at the expiration of said sixty days you will make the usual return to this Office.
S. S. BURDETT, Commissioner.
III. IN NEW MEXICO, ARIZONA AND COLORADO. No. 504.
SURVEYOR GENERAL OF NEW MEXICO.
The Surveyor General of New Mexico has power to examine private land claims in the territory acquired by the Gadsden treaty, 8 sec. act of July 22, 1854, (10 Stat., 309; 10 Stat., 575;) except that portion incorporated into the Territory of Arizona, 12 Stat., 664; 16 Stat., 230.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., 17th Feb., 1872. SIR-I have considered the question submitted by you in your letter of the 10th instant, as to the power of the Surveyor General of New Mexico to investigate and report upon private land claims within the territory acquired from Mexico by the Gadsden treaty of 1853.
The 8th section of the act of July 22, 1854, (10 Stat., 309,) made it the duty of the Surveyor General of New Mexico, under instructions from the Secretary of the Interior, to ascertain the origin, nature, character and extent of all claims to lands under the laws, usages and customs of Spain and Mexico, and for that purpose gave him authority to issue notices, summon witnesses, administer oaths, and do and perform all other necessary acts in the premises.
It required him to make a full report to the Secretary of the Interior of all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo, with his decision as to the validity or invalidity of each of the same under the laws, usages and customs of the country, before its cession to the United States. It required the Secretary of the Interior to lay such report before Congress for its action, with a view to confirm bona fide grants and give full effect to the treaty, and until the final action of Congress, all lands covered by such claims, were reserved from sale or other disposal by the Government.
On the 4th of August, 1854, Congress passed an act (10 Stat., 575,) which provided, "That until otherwise provided by law, the territory acquired under the late treaty with Mexico, commonly known as the Gadsden treaty, be and the same is hereby incorporated with the Territory of New Mexico, subject to all the laws of said last named Territory."
What laws are here referred to as "the laws of said last named Territory?" Are they the laws passed by the Territorial Legislature of New Mexico, or the laws passed by Congress for the Territory of New Mexico, or both?
By the Gadsden treaty we acquired a portion of Mexican territory. It became necessary to provide for it a system of laws. It adjoined the Territory of New Mexico, which had such a system. Congress saw fit to attach it to that Territory and make it subject to all its laws. I think the phrase "all the laws of said last named Territory," should be construed to mean all the laws applicable to that Territory, no matter whether such laws are passed by the Territorial Legislature or by Congress. In either case they are the laws of the Territory, the laws to which the Territory is subject.
This construction renders all the territory acquired by the Gadsden treaty subject to all the laws governing New Mexico, and of course to the 8th section of the act of July 22, 1854, unless since the passage of that act the whole, or some portion thereof, has been "otherwise provided for by law."
It has been in
A portion has been thus "otherwise provided for." corporated into the Territory of Arizona. (12 Stat., 664.) A Surveyor General has been given to it, (12 Stat., 664; 16 do., 230,) and he has been clothed with all the powers given to the Surveyor General of New Mexico by the 8th section of the act of July 22, 1854. (10 Stat., 304, sec. 1.)
So that as to that portion of the Gadsden purchase now incorporated into the Territory of Arizona, it is very clear that the Surveyor General of New Mexico has no jurisdiction, and no power to examine into, or report upon any private land claims.
As to the balance of the purchase, being that portion now remaining incorporated into the territory of New Mexico, I am of opinion that he has such power under the 8th section of the act of July 22, 1854, and
the act of August 4, 1854, and you will govern your action in accordance with this opinion.
HON. WILLIS DRUMMOND, Commissioner General Land-Office.
BEAUBIEN AND MIRANDA.
The phrase "cinco leguas cuandradas" must be interpreted to mean five square leagues, and not five leagues square. Where a Mexican colonization grant is confirmed without measurements of boundaries or of distinct specifications of the quantity confirmed, either in the statute or in the report upon which confirmation was made, no greater quantity than eleven square leagues to each claimant shall be set off to them, and that the tract be surveyed as compactly as practicable. DEPARTMENT OF THE INTERIOR,
Washington, D. C., December 31st, 1869. SIR-I have had before me the appeal of L. B. Maxwell from your decision in reference to the survey of Beaubien and Miranda claim to lands in New Mexico and Colorado, and after full consideration and examination find the facts to be as set forth in your communication of the 10th of September last. That the title in question was confirmed by its number (15) by the Act of the 21st of June, 1860, Statutes, Vol. 12, page 71, without any statement either in the Act itself, in the report of the committee of Congress, or in the papers accompanying such report, of the quantity of land contained in such claim. General boundaries by natural features of the country are given, but these afford no clue whatever to the extent of the tract. The only evidence on that subject is contained in a statement to the Mexican authorities made by Beaubien, one of the original grantees, that the whole quantity claimed by them did not exceed fifteen or eighteen square leagues. By the statement of the counsel for the parties in interest, as well as from the other evidence which you have adduced, it appears that under this grant a tract of land is now claimed containing upwards of four hundred and fifty square leagues, or over two millions of acres.
Under these circumstances it becomes the duty of the Department to give an interpretation to said act of Congress, and to fix, if possible, a rule which shall be applicable to this and similar cases.
By referring to the report of the Senate Committee of Private Land Claims made May 19th, 1860, by Mr Benjamin-under which report this claim was confirmed-we have what seems to be so clear an expression of the understanding and intent of the Committee, which was carried out by action of Congress in conformity with their report, that I think there can be no real difficulty in settling this case thereby. That report fixed, in the case of the claim of Scolly and others, the interpretation of the Spanish measurement by leagues, to wit, that the phrase "cinco leguas cuandradas," must be interpreted to mean five square leagues, and not five leagues square, and so in like cases. In the case of the claim of Vigil and St. Vrain, they also declare that "under the Mexican colonization law of 1824 and regulations of 1828, the extreme quantity allowed to be granted by the governor to any colonist was eleven square leagues. In the absence of any other guide your committee suggest that a restriction of the confirmation to the extent of