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The decree of coufirmation is as follows: copy of the expediente as filed in this case,

"It is decreed that the said claim be con- and not for six square leagues. And it is fur, firmed to the claimants, to the extent and ther admitted by said claimants that the said quantity of six square leagues or sitios de original grant was altered by rasure from two granada mayor, being the same land described to six square leagues after the time of its excuin the grant aud expediente referred to there- tion and delivery to said Carlos Antonio Car. in, and of which possession has been had and rillo without the knowledge or consent of the enjoyed under the same, provided that the governor or other officers of the late Mexican ssid quantity of land granted and now here Government, in California.” contirmed, be contained within the boundaries More testified that this stipulation was called for in said grant, and map to which filed without his knowledge or consent, and the grant refers, and if there be less than the that he never believed that the grant was above named quantity within the said bonnd. fraudulently changed. The original records aries, than we confirm to the claimants that of the Mexican Government, however, show less quantity."

conclusively that it was so altered, and More Carrillo died (the exact date is not known) is now estopped from denying the act of his and his estate was administered upon in the attorney. Probate Court of Santa Barbara County, and The reasons why this stipulation was filed a sale of the real estate was ordered for a are explained in a report made by Surveyor distribution of the proceeds between his heirs. General Day to your predecessor, Mr. Coinat-law. The Sespe grant was accordingly missioner Wilson, dated May 22, 1869, sold at Administrator's sale ; 13-14 on Nov. wherein he says: "I have conversed with 8, 1854, and 1-14 on May 14, e855, Thomas Mr. Hinchman, who now lives here. He W. More, became the purchaser thereof for says that Judge Ogier, was fully aware of the sum of $18,500. These sales were sub- the attempted fraud, aud frowned upon any sequently confirmed by the Probate Court attorney who attempted to ask for a confirm. and deeds were regularly executed by the ation of it. At the same time he expressed Admsnistrators and delivered to Mr. More. a willingness to contirm the title for two

In the published notices which preceded leagues. Hence the admission of Hinchman, said sales, the Sespe grant was described as whose client had become satisfied to take containing about six square leagues, but the one-third of a loaf rather then get no bread. .conveyance by the Administrators to More The matter was left unfinished when Judge do not state the amount of land conveyed; Ogier died, and it had to be re-argued before the description of the property being confined Judge Haight. Colonel Whiting then Disto the name of rancho and the county in trict Attorney, argued the case for the U.Ş., which it is located.

and he tells me that the facts were fully deA petition for review of the decision of the veloped before Judge Haight, whose opinion Board of Land Commissioners was filed in coincided with that of Judge Ogier, and a the United States District Court, by the decree was rendered for two leagues instead United States District Attorney, on December of the six confirmed by the Land Commis. 29, 1854, and a summons was issued to the isonersheirs of Carrillo to appear and defend said "On examining the original grant on file actiou on Feb. 1, 1855, and service was per- in this office, I find the word "seis' accomfected by the Marshal on March 1, 1855, on panied by signs of some kind of alteration, Oct., 18, 1855, the name of Thomas W. More, whether by mechanical erasurə or by chemwas substituted by order of the count, as the ical process does not distinctly appear. party appellee in place of the heirs of Carlos The hand writing of the word 'scis' Antonio Carrillo, it being shown that he had does not agree with that of the rest of the become the owner of the grant after the document. The original barrador or office decree was rendered by the Board of land copy of the grant kept by the Governor's Commissioners.

Secretary, has the word "dos' unaltered. On Feb. 5, 1856, A. F. Hinchman, attor- So has also the old copy in the record book ney for More, filed the following stipulation of titulos." in the United States District Court, viz. : Said grant was confirmed by the U. S. "It is admitted by the claimants in the above District Court on June 25, 1862, for two entitled cause, that the grant of land claimed leagues, the decree describing the lands conin this case as orginally delivered to Carlos firined to be as foilows, viz. : "The lands Antonio Carrillo, was for two square leagues hereby confirmed are those known as 'Sespe,' of land, the quantity granted as shown in the situated in the county of Santa Barbara, in the southern district of California, and are "That where persons in good faith and for a of the extent of two square leagues within valuable consideration, have purchased lands the boundaries called "for in the grant and of Mexican grantees or assigns, which grants expediente - referred to therein ; said bound- have subsequently been rejectəd, or where aries being described as follows, to wit: the lands so purchased have been excluded bounded by the missions of San Fernando from the final survey of any Mexican grant, and Sar. Buenaventura, provided, that should and have used, improved, and continued in there be less than two square leagues within the actual possession of the same as accordsaid boundaries, then confirmation is hereby ing to the lines of their original purchase, made of such less quantity.”

and where no valid adverse right or title On Jan. 12, 1865, the U. S. Supreme Court (except of the U. S.) exists, such purchasers dismissed the appeal in said case and issued may purchase the same, after having such a mandate to the District Court to proceed lands surveyed under existing laws, at the under the judgment of Inne 25, 1862, as minimum price established by law, upon under final decree.

first making proof of the facts as required in This mandate was filed and entered on this section, under regulations to be provided record in the District Court on December 4, by the Commissioner General Land Office, 1867.

joint entries being admissible by co-termThe survey of this grant was made by nous proprietors to such an extent as will Deputy Surveyor Hoffman in Jan. 1868. and enable them to adjust thcir respective bound'& plat thereof transmitted to your office on aries ; Provided, that the provisions of this June 17, 1838.

section shall not be applicable to the City By this survey said grant was represented and County of San Francisco. Provided, as containing 25,360 96-100 acres, including that the right to purchase herein given shall 5,780 29-100 acres of the sandy river bed or not extend to lands containing mines of arenal.

gold, silver, copper or cinnabar; Provided, This survey was rejected by acting Sec- that whenever it shall be made to appear by retary Cowen, on July 31, 1871, and a new sur- petition, from the occupants of such land that vey ordered. A new plat of survey was re- injury to permanent improvements would turned by the Surveyor General in December, result from running the lines of the public 1871, by which the grant was located in two surveys through sueh permanent improve. tracts : tract number one containing 3, 086 ments, the Commissioner General Land 83-100 acres and tract number two contain. Office may recognize existing lines of subing 5,793 98-100 acres, making a total of 8, division." (14 Stat. p. 220.) 880 81 100 acres. This survey was approved It will be observed thai the claimants enby your predecessor, Mr. Commissioner titled to purchase ueder this section, are Drummond, and patent issued thereon divided into two classes, vi. z: March 14, 1872.

First. Those who in good faith and for a On March 18, 1875, More applied to pur- valuable consideration have purchased lands chase the lands formerly within the claimed from Mexican grantees or assigns, which limits of said rancho, which were not included grants have been subsequently rejected, in the final survey.

and have used, improved and continued You decided that the plat of the Sespe in actual possession of the lands according Rancho, returned by the Surveyor General to the lines of their original purchase. in 1868, correctly defined the out-boundaries Second. Where the lands purchased as of the grant, and that More (his heirs or above have been excluded from the final surassigns) were entitled to purchase all land yey of any Mexican grant, and the claimant not included in the final survey of the grant has used, improved and continued in actual within said boundaries, except the tract possession thereof, according to the lines of lying within the arenal or sandy river bed. his original purchase: Provided, in both

The heirs of More have appealed from so cases, that the lands are not mineral in charmuch of your devision as rejects their right acter, and there was no valid adverse right to purchase the sandy lands; and the settlers or title thereto (except in the U. S.) at the whose claims are affected by your decision, date of the act, or in case of final rejection have appealed from so nuch thereof as or determination of the limits of the grant awards to the heirs the right to purchase after the passage of the act, at the date of any of the lands in question.

such rejection or determination. In order The statute under which this application to bring the case within the first class, the is made is in the following words viz. :' grant as claimed must have been rejected,

not in part, but entirely. The word "rejected" | where within those exterior boundaries, in is not a word of great elasticity nor of compact form if practicable, and if impracdoubtful meaning, either in common par: ticable to locate the same in a compact form lance or in legal signification, and as used in one tract, then in separate tracts. each in this statute, it means a legal determina- separate location being made as near as tion adverse to the claim as presented by the possible in a compact form. tribunal before whom the claim shall be pre- In accordance with that decision, the sented for final adjudication. And while it grant as confirmed was surveyed and located is immaterial for what reason the grant is within the exterior boundaries of the calls of rejected in order to give the claimant the the grant, in two separate tracts, aggregatright to purchase under 'said section, the ing in quantity two square leagues of land. quantity of the land purchased in good faith | The survey of the grant as thus made and for a valuable consideration, from the and located, was approved by your predeMexican grantee, or his assigns, still that cessor, and patent issued thereon to Thomas right does not exist under this provision un. W. More, on March 18, 1872. less the grant has been rejected. As this The right of a claimant to select the grant was not rejected, but on the contrary quantity of land confirmed to him anywhere was confirmed and satisfied for the full within the exterior boundaries of a Mexican amount granted by the Mexican Govern- grant, was distinctly recognized in the Dement, it is obvious that the claimants do not partinental decision of July 31, 1871, based belong to the class first mentioned and have upon the authorities cited, and inasmuch as no right to purchase any lands described in no objection by Mr. More, appears to have the application on that ground.

been raised to the latter survey, or the acHave they a right to purchase said lands ceptance of the patent issued thereon, it must by reason of the provision granting the right be presumed that he exercised this right of to purchase "where the lands so purchased selection and was satisfied therewith. have been excluded from the final survey of From this brief review of the facts I any Mexican grant, and have used, improved think it clearly appears that no lands were and continued in actual possession of the excluded from the final survey of this rancho. same as according to the lines of their orig. The claimant had the right of selection and inal purchase ?"

did select within the exterior boundaries of The answer to this question must depend the calls of the grant, the full quantity of upon the fact, whether any lands have been land confirmed to him, and although it is excluded from the final survey of said grant. true that an area of two squart leagues will

In order to determine that fact, an exam- not cover an area of six square leagnes, still ination of the record, the history of this case, it does not follow that, because the whole and the acts of the ancestor of the claimants quantity is not embraced within the survey, in relation thereto is necessary.

or patent of the lesser quantity, that any The question of the survey and location lands not thus selected are excluded from of this grant came before my predecessor, the final survey. Hon. C. Delano, in 1871, on an appeal from In the selection of the quentity confirmed the decision of Mr. Commissioner Drnm within larger exterior boundaries, it must al. mond, rejecting the survey thereof, made ways happen that some lands used and occuunder the direction of the Surveyor General pied by the claimants are not included within of California, in 1868, which survey included the selection and survey, and to hold that the 25,360 96-100 acres of land.

mere fact of such use and occupation for any The decision of the Commissioner reject. purpose or in any manner, gives the claiming said survey for 'the reason that it em- ant the right to purchase the land so used braced more then the two square leagues and occupied would extend the provisions confirmed to More, was affirmed by Depart of said act so as to permit the claimant to mental decision dated July 31, 1871, based purchase any and all lands included within upon the opinion of Assistant Attorney the exterior boundaries of the calls of the General Smith, dated July 25, 1871. (Copp's grant claimed by him. It may be true Land Laws, p. 529.) It was also held that where grants were made not of quantity, but as the grant as confirmed was a grant of by specific boundaries, and the claimant has quantity within larger exterior boundaries, occupied lands through some mistake or the claimant as the assignee of a Mexican misapprehension, not included within such grantee, had the right to select and have specific boundaries, that he would have the located the quantity confirmed to him any.' right to purchase under said section the land 80 used and occupied after final survey of Carillo had in the “Sespe Rancho" and the grant had been made, and the tract so nothing more. The deeds did not state that occupied had been excluded from such survey six squre leagues of land were conveyed there. upon discovery and identifieation of the by, but on the contrary, they mentioned and land-marks named in the calls of the grant. conveyed the interest which the heirs posThis right, however, , does not extend to sessed in the "San Calletano” or “Sespe grants of quantity within larger exterior Rancho," situated in the "County of Santa boundaries. The reason which would war- Barbara in the State of California," without rant the construction in the one case does further designation or description of quantity not exist in the other.

or limits. That interest, as it was finally de. In the Act of March 3, 1851, providing a termined by the Court, consisted of the grant system for the settlement and final adjudi. of two square leagues of land, which, as above cation of Spanish and Mexican grants in the stated. was selected by him and for which he State of California, a reservation was created received a patent in his lifetime. of all the lands embraced within the claimed To permit More, if living, or his heirs or limits of every Mexican grant valid or invalid legal representatives now to purchase from althongh the grant in fact, and in almost the Government, under the provisions of said every instance, was of a quantity much less section, the balance of the land embraced within the tract so reserved. These large within the exterior boundaries of said grant, tracts have been used and occupied, pending would, in my opinion, be a very dangerous the final adjustment and satisfaction of the precedent, and not warranted thereby. grant under such reservation by claimants, Owing to the peculiar circumstances consince that time, in, order to protect their nected with this case, if they could be conrights, as well as to secure the benefits aris- sidered as bearing upon the question at issue, ing from the use of large tracts of lands: I should be disposed to allow the application

Upon the adjustment, however the grant of the heirs of More to purchase said tracts, of quantity within larger exterior bounda- if such application could be allowed in any ries I am not aware that in any instance the case, to purchase lands within the exterior claimants have sought or at least been al- boundaries not selected, in satisfaction of the lowed by the provision of the law under quantity granted, but in my opinion such an which this claim is presented to pnrchase application cannot be allowed in any case unany portion of the lands so reserved, not der the provisions of the 7th section of the embraced within the grant as finally adjusted act of July 23, 1866. and I see no reason in this case for adopting Your decision, therefore, allowing the heirs a different rule from that which has been of More to purchase any of the tracts embraced applied and accepted as the proper construc- within the exterior boundaries of the “Sespe tion of said act in other cases.

Rancho,” is hereby reversed and the papers It is true that this act is remedial in transmitted with your letter of December 5, character, and, as such should have such 1877, are herewith returned. liberal construction as will afford the relief Very respectfully, C. SCHURZ, intended by Congress to be granted, but

Secretary. while this is true, it must not be so con- Commissioner General Land Office. strued, liberally or otherwise, as to embrace cases not contemplated by its provisions.

In the cases of McGarrahan vs. the Secretary (9th Wallace p. 298), the Supreme Book Notice. and Review. Court clearly indicated the opinion that the

“LAW OF MECHANICS' LIENS" OF CALIFORNIA act is not to be extended to any cases except those which are brought by the proofs clearly -with expanatory remarks. For mechanics, within its provisions. In other words, that it and material men. This accurate, complete, must be extended only to cure the mischief and valuable work, of 32 Pages, has just been sought to be remedied and afford relief in those cases, where without it, the parties handed us by the authors, Messrs York and would be remediless.

Clement, of the San Francisco Bar ;--and In this case, the proofs show that Mr. we can safely recommend it to all who need More occupied and used all of the lands em such a work, as reliable, and with a full supbraced within the exterior boundaries described in the calls of the grant. His purchase ply of the proper forms, for use. Furnished however, was the interest which the heirs of by the RECORD OFFICE—price only 50 cents.

OF THE

SUPREME COURT OF CALIFORNIA.

Written Opinions.

42

ADMINISTRATION.-Presentment of I CONSTITUTIONAL LAW. ---( See

claims against estate ; time when due Taxes.) Section 3,696 Political Code

must appear. Elliot v. Peck, adm'rx, 125 unconstitutional ; rule for determining
2—“Family allowance" not a claim or validity of statutes. Wills v. Austio,
demand against an estate. Estate of Tax Collector, etc.,

407
McCausland,

132 2–An Undertaking of railroad company
3-The settlement of an estate not a not just compensation" for property

civil action within the meaning of sec. withiv the meaning of the Constitu-
15, art. 1 of the Constitution. Ex tion. Vilhac v. Stockton and Jone
parte Smith,

382
R. R. Co,

440
4-Heirs may contest allowed claims on CONTEMPT.-Proceedings for, as appli.
petition for sale of real estate ; claims

cable to Probate as to District Courts;
to be presented in name of legal owner. executor may be subjected to proceed.
Estate of Crosby,

395
ings in. Ex parte Smith,

382
5-In order to a settlement of accounts
parties must be heard before Probate

CONTRACT.-Where varied from, is
Court. Estate of Runyon,

406

evidence of value, if performed in ac-

cordance with specifications ; failure
AMENDMENT.-Land not in original to pay installments on, when due, not

complaint not to be taken in by. At- prevention, nor cause for abandon.
kinson v. Amador and Sacramento ment, or ground of suit for full bene.
Canal Co.,

187 fits. Cox v. McLaughlin,
APPEAL.-Disinissed, when no copy

2-Clause of rescission in, construed ;
of undertaking. Watson v. Cornell, 37

effect of provision as to time. Weili
2-CROSS-APPEAL, Judgment on.

69
Glass-

V. Jones,
3 +Claim

by, on harvested crops ; les.
cock v. Ashman,

253
3-When frivolous. Adler v. Winkle, 442

see's possession and purchaser subject

thereto. Wentworth et al. v. Miller
ATTORNEY. ~Authority of, to receive

& Lux,

150
money. Ambrose v. McDonald, 106 4-One-fourth of proceeds of mine
2 An order associating, void ; one may

equivalent to a one-fourth interest.
be substituted for another on notice to Elliott v. Leopard Mining Co., 252
adverse party. Prescott v. Salthouse 5-The vendor in a contract not to
et al.,

357 wait indefinitely, after the failure of
ATTORNEY IN FACT.-Power to ex-

purchaser to comply. The decree

should have fixed a day for payment
ecute deed as, must appear. Hagar v.

Keller v.
Spect. (See Estoppel.),

6

on pain of foreclosure.
Lewis,

316
CATTLE. ---Eating grass by the road-
side, while.passing, not subject to the

CONTRIBUTORY NEGLIGENCE.
act of March 3, 1874. Thompson v.

Not abrogated by sec. 486 Civil Code :
Corpstein,

21

no right of action when it exists.

Meel v. Southern Pacific R. R. Co., 25
CERTIORARI. -Office of the writ of.

CORPORATION.--A de facto, pre-
Ex parte Smith,

382

sumed to be a de jure. Stockton &
COMMON PROPERTY.-One half of, Linden G. R. Co. v. Stockton & Cop-
only, may be devised subject to peropolis R. R. Co.,

86
debts; taking out letters testamentary 2-Departure from scheme for railroad,
by wife not a renunciation of her a release of subscribers to stock. Santa
right to. Estate of Frey,
34 Cruz R. R. Co. v. Schwartz,

167

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