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Dan. Ch. Pr., Perk. ed., Vol. III., 1724; scott v.
Blaine, Bald., 287; Whiting v. Bank of The U.
S., 13 Pet., 6-13.

Here it is held that a decision, final in words, is also final in fact, unless rehearing is moved at the rendition of the decree.

Dexter v. Arnold, 5 Mas., 303; Whiting v. Bank of U. S., 13 Pet., 6-13.

After that the court has no power to review, except on a bill of review.

Cameron v. McRoberts, 3 Wheat., 591. In ascertaining the boundaries of land conveyed, monuments, natural or artificial, govern as against decisions, distances, and courses. Preston's Heirs v. Bowmar, 6 Wheat., 580; Cleaveland v. Smith, 2 Story, 278; Nelson v. Hall, 1 McLean, 518; McPherson v. Foster, 4 Wash., 45; Newsom v. Pryor, 7 Wheat., 10; Den v. Wright, Pet. C. C., 64; Barclay v. How ell, 6 Pet., 498; McIver v. Walker, 9 Cranch, 173; Shearman v. Noyes, 3 Dane's Abr., 399; Howe v. Bass, 2 Mass., 380; Pernam v. Wead., 6 Mass., 131; Bosworth v. Sturtevant, 2 Cush., 392; Machias v. Whitney, 16 Me., 343, 347; Town v. Needham, 3 Paige, 546; Jackson v. Ives, 9 Cow., 661; Doe v. Thompson, 5 Cow., 371; Jackson v. Frost, 5 Cow., 346; Blasdell v. Bissell, 6 Pa., 258; Thompson v. McFarland, 6 Pa., 478; Calhoun v. Hall, 2 Har. & McH., 416; Chamberlain v. Crawford, 1 Har. & McH., 355; Carl v. Norwood, 5 H. & Johns., 163.

Where lines are drawn on a map or plan and referred to in a deed, the courses, distances and other particulars, appearing on such plan, are to be considered as the true description of the land conveyed as such, as if such courses, distances and other particulars are fully recited in the deed.

Lunt v. Holland, 14 Mass., 149; Davis v. Rainsford, 17 Mass., 207; Blaney v. Rice, 20 Pick., 62; Heaton v. Hodges, 14 Me., 66.

Decisions of this court in effect confirm these adjudications of the courts of the State.

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Yontz v. U. S., 23 How., 498, 16 L. ed. 473, Catron, J.; Mezes v. Greer, 24 How., 268, 16 L. ed. 661; Singleton v. Touchard, 1 Black, 344 (ante, 50); Menard's Heirs v. Massey, 8 How., 306; Bryan v. Forsyth, 19 How., 335, 15 L. ed. 674; Ledoux v. Black, 18 How., 475, 15 L. ed. 457; 5 How., 28; U. S. v. Pacheco, 22 How., 226, 16 L. ed. 336. Catron, J.

As to the rights of the United States:

The Treaty of the Cession from Mexico covers the equitable position of a subsequent purchaser for value, and without notice of all the ungranted public land in California, and as such in the location and survey of all antecedent grants made by Mexico, it is entitled to all the rights and equities which belonged to that character.

The government, therefore, is entitled to insist as against the claimants, under Larios and Berreyesa's grants.

First. That as they ask equities, they shall also do equities.

Second. That they shall only claim and have allotted to them the land actually and in good faith inhabited, cultivated, improved and occupied by them in the valley of the Capitancillos, and not elsewhere, because their equities attach to those lands and to none other.

Third. That in locating these grants, the courts and the surveyors as their instruments, should be governed by the intention of the grantor as expressed in the grants when read by the light of surrounding circumstances, because the act of locating the grant is merely the identification, on the ground of the subjectin-matter of the grant and demarcation there of its lines, according to the intention of the grant.

U. S. v. Sutherland, 19 How., 363, 15 L. ed. 666; U. S. v. Pacheco, 22 How., 226, 16 L. ed. 337; Blake v. Doherty, 5 Wheat., 359.

The course given from point to point is tended to be a straight line.

Baker v. Talbott, 6 Mon., 182.

The United States cannot contest here in the decision of the court below, to which it did not interpose appeal.

Gonzales v. U. S., 22 How., 161, 16 L. ed. 332. Messrs. Edward Bates, Atty-Gen., and J. A. Wills, for the United States:

1. As to the rights of the grantees. First. The validity of both these grants has been determined by this court in the Larios grant by the decision in U. S. v. Fossat, 20 How., 125, 15 L. ed. 944. In the Berreyesa grant, by the decision of The U. S. v. Berre yesa's Heirs, 23 How., 500, 16 L. ed. 474.

Second. The grants in both these cases were incomplete; first, because they were never approved by the Departmental Assembly; second, because the lands granted, were never severed from the public domain of Mexico by survey and delivery of juridical possession to the gran

tees.

Yontz v. U. S., 23 How., 498, 16 L. ed. 473, Catron, J.

The facts involved in these statements will be admitted as true.

Fourth. That the cotemporaneous exposition of rights under these grants, given by the grantees themselves, by their occupancy under them during the whole period of the Mexican dominion after they were made, should be regarded as furnishing strong evidence of the locality of their grants.

Fifth. That the location of a grant in a different place from that indicated and intended by a grant, is not the executive consummation of a previous grant, but is equivalent to a new grant by the surveyor, which is illegal.

Villabolos v. U. S., 10 How., 555, 556, Catron, J.; The U. S. v. Breward, 16 Pet., 146, Catron, J.

Sixth. That the discovery of the New Almaden and other quicksilver mines in the vicinity of the valley of Capitancillos, confers no new rights upon either of these grantees, but that their grant should be located and surveyed by the United States now, precisely as they ought to have been located, and would have been located by Mexico immediately after they were made, if the grants had been completed and ju

dicial possession of them had been to their grantees.

In short, the United States has a right to insist that these grants shall be located within their external boundaries precisely as if no mines had been discovered, in the mine ridge and where the grantees would have had a right to have had them located, and if the case had been reversed and the mines had been discovered in the valley instead of in the mountains. And, reciprocally, the United States maintain that these grantees have no more right now to locate their grants in the mountains because of that discovery in the mine ridge, even if they should be found within the external limits of the grants, than the United States would have had under like circumstances to have located the grants in the mountains, if the mines had been discovered in the valley.

The argument of the United States will consist of the progressive development and establishment of these three leading propositions, viz.: 1. That the pueblo hills on the north, the Laurel hills on the east, and the first range of highlands as a part of the sierra lying nearest the valley on the south, are the natural boundaries of the valley of the Capitancillos.

2. That the natural boundaries of the valley of the Capitancillos are also the legal external boundaries of both of the grants of that valley, made by the Mexican Government to Larios and Berreyesa.

3. That in the survey and location of the Larios and Berreyesa grants within the natural and legal external boundaries of the valley of the Capitancillos, regard must be had, in their successive order, to following particulars, viz.: First. To the limitations of quantity in each grant.

Second. To the form of the grant as indicated by their diseños and boundaries called for, viz.: That of rectangular parallelograms, located in and including the length of the valley.

Third. In the selection of the less from the greater quantity of land within the specified external boundaries of each grant, regard must be had first to the selection made by the grantees themselves, as evidenced by the locality of their dwellings, improvements and cultivations, so as bona fide to include them in a compact form in the bodies of the grants; and second, to the selection subsequently made by their assignees, as evidenced under the exclusive regulations of the General Land Office, by the sales of lands within the limits of grants; and,

Fourth. In the survey, and locations of these grants, regard should be had, on grounds of justice as well as of public policy and convenience, to the clause of vicinage, or of coterminous boundaries, so that those who were "colindantes" or adjoining owners under the Mexican Government, should continue to be so, and the surveys and locations of grants be made by the United States as legal successors of Mexico. Messrs. J. M. Carlisle and Williams, for the widow and for the heirs of Berreyesa:

It is clear that the boundaries designated in the grant to Larios, within which the claim of Fossat was confirmed by this court, are as follows: The sierra, the Arroyo Seco on the Eide of the establishment of Santa Clara, and the rancho of José Reyes Berreyesa, which has

for the boundary the angle which forms Arroyo Seco and that of Alamitos towards the south, the slope of the hill situate in the center of the cañada towards the east, until it reaches the sierra.

The widow and the heirs of José Reyes Berreyesa filed their petitions before the Board of Commissioners, Dec. 30, 1852, more than eleven years since. The claim was confirmed by the Board July 3, 1855, by the District Court March 30, 1857, and by this court at the Dec. Term, 1859. They made no effort to obtain a confirmation in terms which might be open to more than one construction, but were satisfied to have their claim confirmed for one square league, to be located according to the description and within the boundaries set out in the original grant and delineated on the diseño contained in the espediente, to both of which reference is made for a more particular description. They believe that the eastern boundary of Larios is located by the final decree in a manner substantially correct; that Larios obtained exactly the land granted to him, and that equal and exact justice might be done had all parties of the final decree of the district Court in this cause, been affirmed by this court, and so enable these intervenors to have their confirmed claim properly located, surveyed and patented.

Mr. Justice Nelson delivered the opinion of the court:

This case has already been twice before the court. The first report of it will be found U. S. v. Fossat, 20 How., 413, 15 L. ed. 944. The second Same v. Same, 21 How., 445, 16 L. ed. 186. It was very ably and elaborately argued at the bar on both occasions, and fully considered by the court. There is very little, if anything, left that is new to be considered or decided upon the present argument.

The main question in contestation in the two preceding arguments, and which has again been ably and claborately presented, is that involved in the settlement of the southern boundary of the grant, whether or not the foot of the sierra, the mountain range, or the Lomas Bajas, a range of low hills north of it, constituted this southern boundary. The Board of [*705 Commissioners adopted the sierra, and its decree, in this respect, was confirmed by the district court. On an appeal to this court the same line was fully recognized.

The court, after referring to the lines of the grant to Larios, and to the sierra, as described in the grant to Berreyesa, the west line of which was a line in common between the two ranches, as agreed upon between the parties previous to the issue of either grant by the Governor, say, "The southern, western, and eastern boundaries of the land granted to Larios are well defined, and the objects exist by which those limits can be ascertained. There is no call in the grant for a northern boundary, nor is there any reference to the diseño for any natural object, or other descriptive call to ascertain it. The grant itself furnishes no other criterion for determining that boundary than the limitation of quantity, as expressed in the third condition." The decree of the district court was reversed, for the reason that it confirmed to the claimant a larger quantity of land than was embraced in

to the motion to dismiss, which were, [*707 that the inquiries and decrees of the Board of Land Commissioners and of the district court could relate only to the question of the validity of the claim, and not to questions of location, extent and boundary, and that the district court had gone in its decree to the full limit of its jurisdiction. These objections, after a full consideration of the Acts of Congress, of adjudged cases, and of the principles upon which the court was bound to proceed, were overruled: and the court observe that, in addition to the 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 the claim; and that, in affirming a claim to land under the Spanish or Mexican grants to be valid within the law of nations, the stipulations of the Treaty of Guadalupe Hidalgo, and the usages of these 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 And in closing the opinion, it is observed that, "After the authenticity of the grant is ascertained in this court, and a reference has been made to the district court to determine the external bounds of the grant, in order that the final confirmation may be made, we cannot understand upon what principle an appeal can be claimed until the whole of the directions of this court are complied with, and that decree made. It would lead to vexatious and unjust delays to sanction such a practice."

the grant, and the cause was remitted to that
court to enter a decree in conformity with the
opinion. As it became necessary to remand the
cause for the purpose of locating upon the
ground of quantity as limited by the above de
cision, authority was given to the district court
to fix the boundaries from the evidence on file
and such other evidence as might be produced
before it. On filing the mandate in the district
court, the counsel for the United States applied
for liberty to furnish further evidence, which
application was granted. Several witnesses
were examined accordingly, their testimony re-
lating chiefly to the southern boundary of the
tract as described in the grant. The court had
suspended the entry of the decree, in pursuance
of the mandate, until after this evidence was
furnished. The decree was filed and entered
October 18, 1858. It reaffirmed the sierra, or
mountain range, as the southern boundary, and
directed the line to be so drawn as to include
the bottom and lowlands along the base of this
sierra, and declared the eastern line to be a
straight line commencing at the junction of the
Arroyo Seco and the Arroyo de Alamitos, and
706*] thence *running southward to the afore-grantec.
said sierra, or mountain range, passing by the
eastern point of the small hill situated in the
center of the cañada, which was designated in
the grants to Larios and Berreyesa, being the
same line agreed upon between them as a
division line, and which is delineated by a
dotted line on the diseño or map in the espe-
diente of Berreyesa. It declares also the west-
ern boundary to be the Arroyo Seco, which is
the continuation of a stream known as the
Arroyo Capitancillos, and the northern bound-
ary to be a line or lines located, at the election
of the grantee or his assigns, under the re-
strictions established for the location and sur-
vey of private land claims in California, in such
manner that, between the northern, southern,
eastern and western lines, there shall be con-
tained one league of land, and no more.

The decree then fixes the western line of Fossat, which is a line between him and the Guadalupe Mining Company, that owns one fourth of the league granted to Larios, and confirms to Fossat the remaining three fourths within the lines above declared.

This decree was appealed by the United States to this court, the report of which will be found as already stated in 21 How., 445, 16 L. ed., 186. The court dismissed the appeal as prematurely brought, the decree below not being a final decree.

It will be seen, from this opinion, that the reasons for the conclusion that the decree of the district court was not a final one, were, that the land granted had not been located on the ground by fixed and definite boundaries. A survey of the tract was indispensable in order to locate the northern boundary. That boundary was not given in the descriptive calls of the grant, and depended upon the limitation of the quantity; and until the survey of the three lines given, namely: the eastern, southern and western, and the three fourths of a league of land located within them, the northern *boundary could not be ascertained or [*708 fixed. The location of this line was an essential step to be taken on the part of the district court, in fulfillment of the duty enjoined by the mandate of this court. In the interpretation of that mandate, in the opinion, this court, U. S. v. Fossat, 21 How., 447, 16 L. ed., 186, observes "The district court, in conformity with the directions of the decree, declared the external lines on three sides of the tract claimed, leaving the other line to be completed by a survey to be made." That had not been done.

In the opinion dismissing the appeal, it is said, after referring to the case when previously before us, and reported in 20 How., 413, 15 L. ed., 944. "The court had determined that the grant under which the plaintiff claimed land in California was valid for one league, to be taken within the southern, western and eastern boundaries designated therein, at the election of the grantee and his assigns, and adds. the district court, in conformity with the directions of the decree, declared the externality lines on three sides of the tract claimed, leaving the other line to be completed by a survey to be made. From the decree, in this form, the United States have appealed."

The court then answers the objections taken

On the filing of the mandate of dismissal of the appeal in the district court, an order was made directing the Surveyor-General to proceed and survey the land confirmed in conform

with the decree as entered in that court, and which, as we have seen, was entered on the 18th October, 1858. That survey was made and is found in the record. It was approved by the Surveyor-General 18th December, 1860, and filed in the court below 22d January, 1861.

We have also the testimony of Hays, the deputy-surveyor, who surveyed the lines on the ground, and constructed the map; also of Conway, a clerk in the office, who assisted him, and of Mandeville, the Surveyor-General, who approved of the map, showing that the survey and map were made in strict conformity with the boundaries of the tract as given in the decree, of which they had a copy, and followed as their guide.

This survey having been made in conformity with the decree of the district court, entered in pursuance of our mandate, would, doubtless, have closed this controversy, had it not been for the Act of Congress passed 14th June, 1860. after the entry of the decree in the district court, but before the surveyor of the tract by the Surveyor-General. The Act purports to be an Act to Regulate the Jurisdiction of the District Court of United States in California, in regard to the survey and location of confirmed private land claim. It authorizes the court to allow intervenors, not parties to the record, to appear and contest the survey, or in the words 709*] *of the Act, "to show the true and proper location of the claim," and for that purpose to produce evidence before the court, and directs that, "on the proofs and allegations, the court shall render judgment thereon." Any party dissatisfied with the decision may appeal to this court within the period of six months. Under this Act several parties intervened, and much testimony was furnished to the court in relation to the survey and location of the tract by the Surveyor-General, and which is found in the record, embracing some two hundred and twenty pages. And on the 16th November, 1861, the court entered an order reforming the survey, as to the eastern line. In stead of adopting the eastern line of the survey, which had been located as directed in its decree and which was a straight line from the point of beginning to the termination at the sierra (the southern boundary), passing by the eastern point or base of the low hill in the center of the cañada, the court directed that, from the base of the low hill, the line south should be deflected fifty-five degrees west, until it reached a given point or object, and from thence south thirty-four degrees west till it reached the sierra or mountain range. Instead of a straight line for the eastern boundary, three lines were directed to be run, at considerable angles to each other, between the starting point and the termination. This direction of the court not only reformed the survey of the tract as made by the Surveyor-General, but reformed the decree itself of the court, entered on the 18th October, 1858, in pursuance of which the survey had been made. The court assumed that the survey and location of the tract was not to be governed by the decree, but, on the contrary, that it was open to the court to revise, alter and change it at discretion, and to require the Surveyor-General to conform his survey and location to any new or amended decree; for, certainly, if it was competent to change this eastern line from that settled in the decree, it was equally competent for it to change every other line or boundary as there described and fixed.

Now, it must be remembered, that this decree 710*] of the district court designating with

great exactness this eastern line, with such exactness that the Surveyor-General had no difficulty in its location, was entered in pursuance of and in accordance with, the mandate of this court, and by which, that court was instructed at the time of the dismissal of the appeal, that the three external lines declared in it were in conformity with the opinion of this court; and that the other line-the north line -only remained to be completed by a survey to be made, and that this line was to be governed by quantity, which quantity had been previous ly determined.

This radical change, therefore, of the eastern line of the tract. involves something more than a change by the court of its own decree; it is the change of a decree entered in conformity with the mandate of this court. But we do not intend to place any particular stress upon this view, for we hold that it is not competent for the court to depart from its own decree in the exercise of the power conferred by the Act of the 14th June, 1860, ch. 128 (12 Stat., 55). The duty enjoined is not a rehearing of the decree on its merits; it is to execute it; to fix the lines on the ground in conformity with the decree entered in the case. The decree is not only the foundation of the validity of the grant, but of the proceedings in the survey and location of land confirmed. But, independently of this view, which we regard as conclusive, and even if the question was an open one, this alteration is wholly unsustainable. Indeed, the learned counsel for the appellees did not undertake to sustain it on the argument. The fact was admitted that the line was a straight one between the two termini.

An attempt, however, was made to sustain the termination of the line at the same point on the sierra, or southern boundary, consistent with the line being run straight from the point of starting. This is sought to be accomplished by disregarding one of the descriptive calls in the line, a natural object, namely: the eastern base of the low hill, an object which must have been visible to the eyes of both Larios and Berreyesa at the time they agreed upon the settlement of the line as their common boundary. But even this departure from the grant will not answer the purpose. There is still the [*711 difficulty of getting at the point of termination at the foot of the sierra. That point or corner must, first be ascertained before a straight line can be extended to it from the junction of the two creeks, the starting point. The only description in the grant by which this point of termination can be ascertained is by running a line from the junction of the two creeks past the eastern base of the low hill southward to the sierra. It is the extension of this line, in the manner described, by which this corner on the sierra is reached and identified. Anyone seeking to ascertain it without the use of these means, will find himself without compass or guide.

Now, this corner, the learned counsel for the appellees propose to fix arbitrarily or by conjecture, and then by drawing a line from the junction of the two creeks to it, a straight line is obtained, and by this process of ascertaining the corner at the Sierra, it is made easy to select the one reached by the crooked line of the court below. But then, the line, as is admitted,

instead of passing by the eastern base of the low hill, would cut it not far from or even west of its center.

The court below, as is apparent, yielded to this argument, so far as respected the arbitrary selection of the corner at the Sierra, but refused to depart from the call in the line for the eastern point of the low hill. Hence, the crooked line between that point and the termination. The crooked line has the advantage over the straight one of the learned counsel, as it observes one of the principal calls in the grant. Theirs observes none of them except thè starting point.

There are two objections to this view, either of which is fatal.

may be seen by the cases referred to in the opinion of the court U. S. v. Fossat, 21 How., 445, 16 L. ed. 186, and in many others to be found in the reports. The powers of the Surveyor-General under these Acts were as extensive and as well defined as under the Act of 1851. The Act of 1860 did not enlarge or in any way affect his powers. They remained the same as before.

The first Act of Congress, March 2d, 1805, ch. 26 (2 Stat., 324), amended March 3d, 1807, ch. 36 (2 Stat., 440), establishing a Board of Commissioners to settle private French and Spanish land claims, under the Louisiana treaty, provided for a survey of the confirmed Tract by the Surveyor-General, under the direc tion of the commissioners. Secs. 6, 7, 2 U. S. Stat., p. 441.

And the Act of 26th May, 1824, ch. 173 (4 Stat. at L., 52), the first Act which placed these land claims under the jurisdiction of the United States District Courts, provided that a copy of the decree of the confirmed claim should be delivered to the Surveyor-General, and that he should cause the land specified in

The first, the point selected at the foot of the Sierra for a corner, is arbitrary and conjectural, and in contradiction to the clear description in the grant. And, second, it disregards one of the principal and most controlling calls in it, the eastern base of the low hill. Our conclusion upon this branch of the case is. first, that the court erred in departing from 712*] the eastern boundary, as specifically described and fixed in the decree of the 18th the decree to be surveyed, and which survey, October, 1858. And, second, that irrespective of that decree, the line in the survey and location approved by the Surveyor-General, 20th December, 1860, is the true eastern line of the land confirmed.

The only party that appealed from this order or decree of the district court, in respect to the survey and location, as appears from the record, is the present claimant. He insists upon the correctness of the first survey by the Surveyor-General, and that the alteration by the court, of the eastern line, and consequently of the other lines made necessary by this change,

are erroneous.

being presented to the Commissioner of the Land Office by the claimant, entitled him to a patent. Under this Act and other similar Acts, the cases referred to in 21 Howard arose, and in which this court entertained appeals from decrees in the district courts upon the survey and location of confirmed claims. The 13th section of the Act of 1851 corresponds substantially with the above provision of the Act of 1824. It makes it the duty of the Surveyor-General to cause all confirmed claims to be accurately surveyed, and provides that the claimant, on presenting a copy of the decree of confirmation and a plat of survey to the General Land Office, a patent shall issue. It also confers upon this officer the powers of the registers and receivers, under the 5th section of the Act of March 3, 1831, 4 U. S. Stat., p. 492, which relates simply to the case of interfering confirmed claims.

The United States did not appeal. They are, however, a party to the record as appellees, and appeared by counsel on the argument in this court, and took objections to the survey and location, mainly on the ground that the proceedings under the Act of 1860 were not ju- *The duty of the Surveyor-General, [*714 dicial, but purely executive and ministerial; under all these Acts, is to survey and locate the and, as a consequence, that the appeal from the confirmed tract, in conformity with the decree. order or decree of the district court, regulating It is the only guide which is furnished to him; the survey and location, ought not to be enter- and one of the first instructions from the Land tained that the courts could only determine Office is as follows: "In the survey of finally the validity of the grant, leaving its survey confirmed claims you must be strictly governed and location to the Executive Department of the by the decree of confirmation; and when the Government. In other words, that the Act of terms of such decree are specific, they must be 1860 was unconstitutional and void. We need exactly observed in fixing the locality of and only refer to the opinion of this court, in the surveying the claim." This instruction was present case, the second time it was before us, given under the Act of 1851, and in relation to as presenting a conclusive refutation of these the private land claims of California; and it several positions. The fundamental error in was in accordance with this instruction that the the argument is, in assuming that the survey survey of the present claim was made and apand location of the land confirmed are not pro- proved by the Surveyor-General, 20th Decem ceedings under the control of the court render-ber, 1860, and filed in the court below 22d Janu ing the decree, and hence not a part of the judi-ary following, and which was reformed by the cial action of the court. These proceedings are simply in execution of the decree, which execution is as much the duty of the court, and as much within its competency, as the hearing of the cause and the rendition of its judgment; as much so as the execution of any other judgment or decree rendered by the court.

This power has been exercised by the court 713*] ever since the *Spanish and French land claims were placed under its jurisdiction, as

court by the alteration of the eastern line, as already explained. Those who are desirous of putting the Land Office above the decrees of the courts, should at least be satisfied with this instruction of the department, if not with the decrees.

It has been argued, that the lines of the tract, as given in the grant, were out-boundaries, like the case of Frémont and others which have been before the court, and embraced a larger area

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