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The decree of coufirmation is as follows: "It is decreed that the said claim be confirmed to the claimants, to the extent and quantity of six square leagues or sitios Idegranada mayor, being the same land described in the grant aud expediente referred to therein, and of which possession has been had and enjoyed under the same, provided that the ssid quantity of land granted and now here confirmed, be contained within the boundaries called for in said grant, and map to which the grant refers, and if there be less than the above named quantity within the said bonndaries, than we confirm to the claimants that less quantity."

Carrillo died (the exact date is not known) and his estate was administered upon in the Probate Court of Santa Barbara County, and a sale of the real estate was ordered for a distribution of the proceeds between his heirsat-law. The Sespe grant was accordingly sold at Administrator's sale; 13-14 on Nov. 8, 1854, and 1-14 on May 14, e855, Thomas W. More, became the purchaser thereof for the sum of $18,500. These sales were subsequently confirmed by the Probate Court and deeds were regularly executed by the Admsnistrators and delivered to Mr. More.

In the published notices which preceded said sales, the Sespe grant was described as containing about six square leagues, but the conveyance by the Administrators to More do not state the amount of land conveyed; the description of the property being confined to the name of rancho and the county in which it is located.

A petition for review of the decision of the Board of Land Commissioners was filed in the United States District Court, by the United States District Attorney, on December 29, 1854, and a summons was issued to the heirs of Carrillo to appear and defend said action on Feb. 1, 1855, and service was perfected by the Marshal on March 1, 1855, on Oct., 18, 1855, the name of Thomas W. More, was substituted by order of the court, as the party appellee in place of the heirs of Carlos * Antonio Carrillo, it being shown that he had become the owner of the grant after the decree was rendered by the Board of land Commissioners.

On Feb. 5, 1856, A. F. Hinchman, attorney for More, filed the following stipulation in the United States District Court, viz.: "It is admitted by the claimants in the above entitled cause, that the grant of land claimed in this case as orginally delivered to Carlos Antonio Carrillo, was for two square leagues of land, the quantity granted as shown in the

copy of the expediente as filed in this case, and not for six square leagues. And it is further admitted by said claimants that the said original grant was altered by rasure from two to six square leagues after the time of its excution and delivery to said Carlos Antonio Carrillo without the knowledge or consent of the governor or other officers of the late Mexican Government, in California."

More testified that this stipulation was filed without his knowledge or consent, and that he never believed that the grant was fraudulently changed. The original records of the Mexican Government, however, show conclusively that it was so altered, and More is now estopped from denying the act of his attorney.

He

The reasons why this stipulation was filed are explained in a report made by Surveyor General Day to your predecessor, Mr. Commissioner Wilson, dated May 22, 1869, wherein he says: "I have conversed with Mr. Hinchman, who now lives here. says that Judge Ogier, was fully aware of the attempted fraud, and frowned upon any attorney who attempted to ask for a confirmation of it. At the same time he expressed a willingness to confirm the title for two leagues. Hence the admission of Hinchman, whose client had become satisfied to take one-third of a loaf rather then get no bread. The matter was left unfinished when Judge Ogier died, and it had to be re-argued before Judge Haight. Colonel Whiting then District Attorney, argued the case for the U. S., and he tells me that the facts were fully developed before Judge Haight, whose opinion coincided with that of Judge Ogier, and a decree was rendered for two leagues instead of the six confirmed by the Land Commisisoners

"On examining the original grant on file in this office, I find the word 'scis' accompanied by signs of some kind of alteration, whether by mechanical erasure or by chemical process does not distinctly appear.

*

The hand writing of the word, 'seis' does not agree with that of the rest of the document. The original barrador or office copy of the grant kept by the Governor's Secretary, has the word 'dos' unaltered. So has also the old copy in the record book of titulos."

Said grant was confirmed by the U. S. District Court on June 25, 1862, for two leagues, the decree describing the lands confirmed to be as foilows, viz. "The lands hereby confirmed are those known as 'Sespe,' situated in the county of Santa Barbara, in

:

the southern district of California, and are of the extent of two square leagues within the boundaries called for in the grant and expediente referred to therein; said boundaries being described as follows, to wit: bounded by the missions of San Fernando and Sar. Buenaventura, provided, that should there be less than two square leagues within said boundaries, then confirmation is hereby made of such less quantity.”

On Jan. 12, 1865, the U. S. Supreme Court dismissed the appeal in said case and issued a mandate to the District Court to proceed under the judgment of June 25, 1862, as under final decree.

This mandate was filed and entered on record in the District Court on December 4, 1867.

The survey of this grant was made by Deputy Surveyor Hoffman in Jan. 1868. and a plat thereof transmitted to your office on June 17, 1838.

By this survey said grant was represented as containing 25,360 96-100 acres, including 5,780 29-100 acres of the sandy river bed or arenal.

"That where persons in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the U. S.) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts as required in this section, under regulations to be provided by the Commissioner General Land Office, joint entries being admissible by co-termnous proprietors to such an extent as will enable them to adjust their respective boundaries; Provided, that the provisions of this section shall not be applicable to the City and County of San Francisco. Provided, that the right to purchase herein given shall not extend to lands containing mines of gold, silver, copper or cinnabar; Provided, that whenever it shall be made to appear by petition, from the occupants of such land that

result from running the lines of the public surveys through such permanent improvements, the Commissioner General Land Office may recognize existing lines of subdivision." (14 Stat. p. 220.)

This survey was rejected by acting Secretary Cowen, on July 31, 1871, and a new survey ordered. A new plat of survey was re-injury to permanent improvements would turned by the Surveyor General in December, 1871, by which the grant was located in two tracts: tract number one containing 3, 086 83-100 acres and tract number two containing 5,793 98-100 acres, making a total of 8, 880 81 100 acres. This survey was approved by your predecessor, Mr. Commissioner Drummond, and patent issued thereon March 14, 1872.

On March 18, 1875, More applied to purchase the lands formerly within the claimed limits of said rancho, which were not included in the final survey.

You decided that the plat of the Sespe Rancho, returned by the Surveyor General in 1868, correctly defined the out-boundaries of the grant, and that More (his heirs or assigns) were entitled to purchase all land not included in the final survey of the grant within said boundaries, except the tract lying within the arenal or sandy river bed.

The heirs of More have appealed from so much of your decision as rejects their right to purchase the sandy lands; and the settlers whose claims are affected by your decision, have appealed from so much thereof as awards to the heirs the right to purchase any of the lands in question.

The statute under which this application is made is in the following words viz.:

It will be observed thai the claimants entitled to purchase ueder this section, are divided into two classes, vi. z:

First. Those who in good faith and for a valuable consideration have purchased lands from Mexican grantees or assigns, which grants have been subsequently rejected, and have used, improved and continued in actual possession of the lands according to the lines of their original purchase.

Second. Where the lands purchased as above have been excluded from the final suryey of any Mexican grant, and the claimant has used, improved and continued in actual possession thereof, according to the lines of his original purchase: Provided, in both cases, that the lands are not mineral in character, and there was no valid adverse right or title thereto (except in the U. S.) at the date of the act, or in case of final rejection or determination of the limits of the grant after the passage of the act, at the date of such rejection or determination. In order to bring the case within the first class, the grant as claimed must have been rejected,

In accordance with that decision, the grant as confirmed was surveyed and located within the exterior boundaries of the calls of the grant, in two separate tracts, aggregating in quantity two square leagues of land. The survey of the grant as thus made and located, was approved by your predecessor, and patent issued thereon to Thomas W. More, on March 18, 1872.

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 presented for final adjudication. And while it is immaterial for what reason the grant is rejected in order to give the claimant the right to purchase under said section, the quantity of the land purchased in good faith and for a valuable consideration, from the Mexican grantee, or his assigns, still that right does not exist under this provision unless the grant has been rejected. As this grant was not rejected, but on the contrary was confirmed and satisfied for the full amount granted by the Mexican Government, it is obvious that the claimants do not belong to the class first mentioned and have no right to purchase any lands described in the application on that ground.

Have they a right to purchase said lands by reason of the provision granting the right to purchase "where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved and continued in actual possession of the same as according to the lines of their original purchase?"

The answer to this question must depend upon the fact, whether any lands have been excluded from the final survey of said grant.

In order to determine that fact, an examination of the record, the history of this case, and the acts of the ancestor of the claimants in relation thereto is necessary.

The question of the survey and location of this grant came before my predecessor, Hon. C. Delano, in 1871, on an appeal from the decision of Mr. Commissioner Drnmmond, rejecting the survey thereof, made under the direction of the Surveyor General of California, in 1868, which survey included 25,360 96-100 acres of land.

The decision of the Commissioner reject ing said survey for the reason that it embraced more then the two square leagues confirmed to More, was affirmed by Departmental decision dated July 31, 1871, based upon the opinion of Assistant Attorney General Smith, dated July 25, 1871. (Copp's Land Laws, p. 529.) It was also held that as the grant as confirmed was a grant of quantity within larger exterior boundaries, the claimant as the assignee of a Mexican grantee, had the right to select and have located the quantity confirmed to him any

The right of a claimant to select the quantity of land confirmed to him anywhere within the exterior boundaries of a Mexican grant, was distinctly recognized in the Departmental decision of July 31, 1871, based upon the authorities cited, and inasmuch as no objection by Mr. More, appears to have been raised to the latter survey, or the acceptance of the patent issued thereon, it must be presumed that he exercised this right of selection and was satisfied therewith.

From this brief review of the facts I think it clearly appears that no lands were excluded from the final survey of this rancho. The claimant had the right of selection and did select within the exterior boundaries of the calls of the grant, the full quantity of land confirmed to him, and although it is true that an area of two square leagues will not cover an area of six square leagues, still it does not follow that, because the whole quantity is not embraced within the survey, or patent of the lesser quantity, that any lands not thus selected are excluded from the final survey.

In the selection of the quentity confirmed within larger exterior boundaries, it must always happen that some lands used and occupied by the claimants are not included within the selection and survey, and to hold that the mere fact of such use and occupation for any purpose or in any manner, gives the claimant the right to purchase the land so used and occupied would extend the provisions of said act so as to permit the claimant to purchase any and all lands included within the exterior boundaries of the calls of the grant claimed by him. It may be true where grants were made not of quantity, but by specific boundaries, and the claimant has occupied lands through some mistake or misapprehension, not included within such specific boundaries, that he would have the right to purchase under said section the land

so used and occupied after final survey of the grant had been made, and the tract so occupied had been excluded from such survey upon discovery and identifieation of the land-marks named in the calls of the grant. This right, however, does not extend to grants of quantity within larger exterior boundaries. The reason which would warrant the construction in the onc case does not exist in the other.

In the Act of March 3, 1851, providing a system for the settlement and final adjudication of Spanish and Mexican grants in the State of California, a reservation was created of all the lands embraced within the claimed limits of every Mexican grant valid or invalid althongh the grant in fact, and in almost every instance, was of a quantity much less within the tract so reserved. These large tracts have been used and occupied, pending the final adjustment and satisfaction of the grant under such reservation by claimants, since that time, in, order to protect their rights, as well as to secure the benefits arising from the use of large tracts of lands

Upon the adjustment, however the grant of quantity within larger exterior boundaries I am not aware that in any instance the claimants have sought or at least been allowed by the provision of the law under which this claim is presented to purchase any portion of the lands so reserved, not embraced within the grant as finally adjusted and I see no reason in this case for adopting a different rule from that which has been applied and accepted as the proper construction of said act in other cases.

It is true that this act is remedial in character, and, as such should have such liberal construction as will afford the relief intended by Congress to be granted, but while this is true, it must not be so construed, liberally or otherwise, as to embrace cases not contemplated by its provisions.

In the cases of McGarrahan vs. the Secre

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Carillo had in the "Sespe Rancho and nothing more. The deeds did not state that six squre leagues of land were conveyed thereby, but on the contrary, they mentioned and conveyed the interest which the heirs possessed in the "San Calletano" or "Sespe Rancho," situated in the "County of Santa Barbara in the State of California," without further designation or description of quantity or limits. That interest, as it was finally determined by the Court, consisted of the grant of two square leagues of land, which, as above stated. was selected by him and for which he received a patent in his lifetime.

To permit More, if living, or his heirs or legal representatives now to purchase from the Government, under the provisions of said section, the balance of the land embraced within the exterior boundaries of said grant, would, in my opinion, be a very dangerous precedent, and not warranted thereby.

Owing to the peculiar circumstances connected with this case, if they could be considered as bearing upon the question at issue, I should be disposed to allow the application of the heirs of More to purchase said tracts, if such application could be allowed in any case, to purchase lands within the exterior boundaries not selected, in satisfaction of the quantity granted, but in my opinion such an application cannot be allowed in any case under the provisions of the 7th section of the act of July 23, 1866.

Your decision, therefore, allowing the heirs of More to purchase any of the tracts embraced within the exterior boundaries of the "Sespe Rancho," is hereby reversed and the papers transmitted with your letter of December 5, 1877, are herewith returned.

Very respectfully, C. SCHURZ, Secretary. Commissioner General Land Office.

tary (9th Wallace p. 298), the Supreme Book Notice. and Review.

"LAW OF MECHANICS' LIENS" OF CALIFORNIA

Court clearly indicated the opinion that the 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 sought to be remedied and afford relief in those cases, where without it, the parties

would be remediless.

In this case, the proofs show that Mr. More occupied and used all of the lands embraced within the exterior boundaries described in the calls of the grant. His purchase however, was the interest which the heirs of

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McCausland,

3-The settlement of an estate not a
civil action within the meaning of sec.
15, art. 1 of the Constitution. Ex
parte Smith,
4-Heirs may contest allowed claims on
petition for sale of real estate; claims
to be presented in name of legal owner.
Estate of Crosby,

5-In order to a settlement of accounts
parties must be heard before Probate
Court. Estate of Runyon,

132

382

395

406

187

AMENDMENT.-Land not in original
complaint not to be taken in by. At-
kinson v. Amador and Sacramento
Canal Co.,
APPEAL.-Dismissed, when no copy
of undertaking. Watson v. Cornell, 37
2-CROSS-APPEAL, Judgment on.
cock v. Ashman,
253
3-When frivolous. Adler v. Winkle, 442

Glass-

ATTORNEY.-Authority of, to receive
money. Ambrose v. McDonald,
2 An order associating, void; one may
be substituted for another on notice to
adverse party. Prescott v. Salthouse
et al.,
ATTORNEY IN FACT.-Power to ex-
ecute deed as, must appear. Hagar v.
Spect. (See Estoppel.),
CATTLE-Eating grass by the road-
side, while passing, not subject to the
act of March 3, 1874. Thompson v.
Corpstein,

CERTIORARI.-Office of the writ of.
Ex parte Smith,.

COMMON PROPERTY.-One half of,
only, may be devised subject to
debts; taking out letters testamentary
by wife not a renunciation of her
right to. Estate of Frey,

106

357

21

382

34

Taxes.) Section 3,696 Political Code

2-An Undertaking of railroad company
not just compensation" for property
within the meaning of the Constitu-
tion. Vilhac v. Stockton and Ione
R. R. Co,
CONTEMPT.-Proceedings for, as appli-
cable to Probate as to District Courts;
executor may be subjected to proceed-
ings in. Ex parte Smith,
CONTRACT.-Where varied from, is
evidence of value, if performed in ac-
cordance with specifications; failure
to pay installments on, when due, not
prevention, nor cause for abandon-
ment, or ground of suit for full bene-
fits. Cox v. McLaughlin,
2-Clause of rescission in, construed;
effect of provision as to time. Weill
v. Jones,
3-Claim by, on harvested
crops; les-
see's possession and purchaser subject
thereto. Wentworth et al. v. Miller

440

382

42

69

150

252

& Lux,
4-One-fourth of proceeds of mine
equivalent to a one-fourth interest.
Elliott v. Leopard Mining Co.,
5-The vendor in a contract not to
wait indefinitely, after the failure of
purchaser to comply. The decree
should have fixed a day for payment
on pain of foreclosure. Keller v.
Lewis,
316
CONTRIBUTORY NEGLIGENCE.—
Not abrogated by sec. 486 Civil Code :
no right of action when it exists.
Meeks v. Southern Pacific R. R. Co.,
CORPORATION.--A de facto, pre-
sumed to be a de jure. Stockton &
Linden G. R. Co. v. Stockton & Cop-
peropolis R. R. Co.,
2-Departure from scheme for railroad,
a release of subscribers to stock. Santa
Cruz R. R. Co. v. Schwartz,

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