could be readily ascertained without an official survey. Otherwise, the location and limits of the grant as confirmed were to be ascertained by approved survey and patent issued in accordance therewith. This was especially so, if the decree of confirmation was for a smaller quantity within larger out boundaries. And until the final approval of suck survey the entire tract claimed remained in reservation, or, as the su preme court expressed it, "the grantee and the government were ten ants in common of the whole tract." Frasher v. O'Connor, 115 U. S,

107.

Now, what was the claim presented by Moraga on February 15, 1853, to the Board of Land Commissioners, and was the land in controversy within that claim?

In his petition filed on that day he "gives notice that he claims a tract of land. . . . . known by the name of the Laguna of the Palos Colorados,' with the boundaries described in the grant thereof," which is said to have been made August 10, 1841, by Alvarado, then the gov ernor of California. The petition concludes with the statement that "The original grant and a testimonial of said previous consent and authorization are herewith presented, with translations of the same, and also a certified copy of the original map, or diseño, presented with his petition for said land." We are thus referred to the translations and the map filed in the case, in order to ascertain with particularity what was claimed to have been granted.

From these papers, it appears that this grant was for a limited quantity of land, within larger out boundaries, apparently named with some particularity, the land being described as a "tract" or "place," "known by the name of Laguna de los Palos Colorados, bounded on the north by the San Pablo creek, thence in a direct line to the east, including the spring of water which lies near the old inclosure (corral); on the south by the establishment of San Jose; on the west by the range of mountains up to the summit, and on the east by the ridge of Las Trampas," "of the extent of three square leagues, a little more or less, as explained on the map . . . . . leaving the surplus that may result to the nation."

There are two maps in the record. One was the original referred to in and filed with the petition of Moraga, and the other is a colored copy of the same, identified by the witness Briones and the younger Moraga as correct, in their testimony before the Commissioners. On examination these maps show with considerable particularity the topography of the whole area, within the out-boundaries of which lie the granted premises, corresponding as to the descriptive features thereof with those mentioned in the grant by Alvarado, and the decree of the Board of Land Commissioners.

It will be observed, however, on inspection that in the figure representing the four cardinal points of the compass the east point is placed where the west point ought to be, and vice versa. This is such an ap

It is not necesApart from the

parent error that it can mislead no one, especially in the face of the unmistakable calls for the north, east, and west lines. sary to quote authorities on a point so well settled. error in the cardinal points of the compass, the diseño, or map, is much better than usually found in these cases. It shows on the north, well marked, the "arroyo de San Pablo," a straight line to the east, includ ing the "Ojo de agua" near the "corral antiguo;" on the west is seen the ridge of mountains, with penciled trees thereon, marked “Cierra le los Palos Colorados;" on the east appears two ridges of hills, or mountains, with trees, the inside range broken by the "arroyo de las Trampas," which thereafter flows between the two-the outside mountain ridge, which is continuous, turning to the southwest and marked "Las Trampas."

About these three boundaries there is, I apprehend, no dispute, but it is important to note that the north boundary was definitely fixedanchored as it were-by the Mexican authorities at the time of making the grant, it being shown by the record, filed before the Land Commissioners, that an agreement was then made between Valencia, the grantee of the Acalanes ranch, and Moraga, in the presence of and with the approval of the governor and the military commandant Micheltorena, wherein it is stated, "That from the source of a spring counting three hundred varas to the west towards the source of the San Pablo creek shall commence the dividing line between the lands of Senor Valencia and those of Senor Moraga; leaving to the former a piece of land one hundred varas square, within the tract that corresponds to the latter." This shows beyond any question that the northern line of Moraga-the exact locus of the grant claimed by him-was the southern line of Acalanes, granted to Valencia in 1834. This line is correctly located on the Boardman map.

The difficulty in the case arises with regard to the description of the southern boundary, as contained in the grant and decrees, viz: "On the south by the establishment of San Jose." Referring to the maps, which are so clear up to this point, we find nothing whatever to indicate that the southern boundary is the "establishment of San Jose," if we are to consider the mere buildings and enclosures of the Mission as constituting that establishment. On the contrary, the map shows Las Trampas, or a spur thereof, turning almost at a right angle to the south of west, marked at the point of turning, "Las Trampas." This continuation or spur of that mountain range goes on to the south of west, until it almost forms a junction with the "Cierra de los Palos Colorados,” the western boundary, from which it is separated at the most southerly point on said map by an opening between the hills, through which flows a stream of water, marked "arroyo permanente," near which is located a spring of water, a house, and an enclosure-the said opening being known as a "portzuello."

If it be necessary to go outside of the diseño to find the southern boundary of the grant, which is not conceded, I can not admit the force of the contention that the words "establishment of San Jose" as here used meant the residence and grounds, buildings and curtilage, of the Mission proper as it then existed. But it is clear to my mind that the words used mean the lands, outside of these, used for grazing or any other purposes by the Mission authorities, under the laws or customis of the country, and, therefore, regarded and spoken of as part of that ecclesiastical establishment. The word "establishment" is found in a number of other grants, and is invariably used in the sense stated.

If the Moraga grant was not intended to go as far south as the Mission residence, where then did it meet the mission lands?

The answer to this question involves an inquiry into the nature and history of the Mission lands of Mexico, the result of which shows that the out-lying Mission lands of California were without definite boundaries, and held by no tenure other than that of sufferance. Originally these Missions, which were but few in number, occupied nominally the whole territory, the limits of one covering the intervening space to the next, there being no other occupants of these vast tracts except wild Indians.

In the course of time other Mission settlements were established, the former large limits were curtailed, and the adjacent land became attached to each new Mission, in the same manner as to the older ones, until the greater part of the Territory became sotted over with these establishments, engaged in the praiseworthy object of civilizing and christianizing the Indians. To this end large numbers of the young of both sexes were taken to the residences, where they were sought to be educated in industrial pursuits suitable to their sex and condition. It was to aid in this great purpose that the government permitted the use of these vast out-lying tracts of land for grazing, farming, or other purposes. It was never claimed that such lands were the property of the missionaries, or of the church, or that the tenure was other than temporary in character. It was conceded that, whilst the priests were allowed to administer this large property--the usufruct was for the benefit of themselves and pupils-it was resumable or disposable at the will of the nation. (See Carey Jones' report, p. 9. Dwinelle, p. 20: Beard v. Federy, 3 Wall, 478.)

From time to time, under the laws to encourage colonization, the Mexican authorities made such grants of these Mission lands as were applied for, reference of the application being first made to the reverend father, or other person in charge of the particular Mission, out of whose lands it was proposed to carve the grant.

In this way when application for the grant of San Antonio, adjoining on the west that of Moraga, was made in 1820, it was referred to the Reverend Father Duran, then in charge of the Mission of San Jose, who reported favorably thereon, with certain reservations in favor of

the Mission. So, in 1832, when Pacheco and Castro asked for grant of Las Juntas and San Ramon, north and east of Moraga, the application alleged that the latter place had formerly been used by the Mission, but was now unoccupied, and the matter was referred to Friar Gonzales, then in charge of the same mission, who reported, June 2, 1833, favorably to the grant. So the application of Amador, for part of San Ramon, southeast of Moraga, was referred to the Mission authorities, and reported upon favorably May 21, 1833, by Friar Gonzales, stating the land was no longer necessary for mission purposes.

From the records in these cases it is shown that prior to the application of Moraga, for the grant in 1835, the Mission on the east extended northward certainly as far as the south boundary of Las Juntas, afterwards on the granting of San Ramon to Pacheco and Castro became the south boundary of that tract, and when the more southern portion of San Ramon was granted to Amador, the Mission lands became in turn the southern boundary of the last-named tract.

From the record in the San Antonio grant, which adjoins Moraga on the west, it appears that the Mission lands extended certainly up as far as San Antonio creek, which is nearly due west from the southern patented line of Moraga. After the grant of San Antonio was made the San Leandro creek became the southern boundary of the grant, and consequently the northern boundary of the undisposed of Mission lands at that point.

In one of the original Spanish records of California, now in the office of the United States surveyor general of that State, under date of 1828, is found a description of the then boundaries of the Mission of San Jose by its minister, Friar Narcisso Duran. He states that "on the northwest it confines with the Arroyo of San Leandro, which divides it from the Rancho of the Sergeant Luis Peralta (San Antonio) and remains occupying in the form of a tongue of land some nine leagues in length, having its width from the mountain ranges to the sea one, two and three leagues in its greatest width. The center of the nine leagues being the Rancho and Arroyo of San Lorenzo, at the distance of five leagues to the northwest of the Mission."

According to this description in 1828, after the lines of the San Antonio grant had been conceded, the San Leandro creek became the northwest boundary line of the Mission lands. Tracing that creek from its mouth up its main branch, after its great bend around and to the east side of the base of the coast range of mountains, which constituted the east boundary of San Antonio, and the west boundary of Moraga, the course would be east of north along the base of said mountains, until tract No. 2 of the patented lands of Moraga is entered, then turning due north, following the main branch of said creek it can be traced to its source, which is found in the "Laguna permanente," in the northeast part of the Moraga grant, as shown on the diseño. Doubtless the source is even beyond this in the mountains above, but is not so shown by anything before me.

This creek, well defined as it is in its course, was evidently understood by the friar Duran as the boundary between the Mission land and the San Antonio grant, as far as they were coterminous and beyond that point the creek was the western boundary of the Mission possessions up to its source.

It has already been shown that in 1832 the Mission lands extended in this direction as far north as the southern boundary of Las Juntas, and the locality where the San Leandro creek has its source is not far off.

Accepting then the San Leandro creek from its mouth to its source as the western boundary of the Mission lands, in 1835, when Moraga asked for his grant, probably about one-half of the proposed concession was composed of lands theretofore used and occupied by the Mission, hence his application was referred to the minister in charge-the same Friar Gonzales spoken of above-who, on September 30, 1835, reported in favor of the grant, asking that the right to cut lumber on said land be reserved to the Mission.

In 1841, when the grant of six hundred varas, part of San Lorenzo, was asked, the application was referred to the agent then in charge of the Mission lands, who approved of the grant, and when in 1843 the ranch of San Lorenzo proper was granted, express reservation was made of the right of the Mission cattle to pasture on the same. The grant of San Lorenzo was for six square leagues and adjoined on its north side that of Moraga.

The boundaries of the Mission lands as thus shown would make "a tongue of land" of about the location and description, and approximating the dimensions given by Father Duran in 1828 in the foregoing extract from the Spanish records.

There is no force in the contention that the Mexican act of August 17, 1833, secularizing the missions and curtailing their territorial limits within very restricted bounds was in force on August 10, 1841, when the Moraga grant was made and consequently the southern boundary therein described must have been the new and restricted limits of the Mission under that act. The answer is that, while said act was passed as above, it had not been fully enforced at the time the grant was made, for on November 7, 1835, the General Congress of Mexico decreed the suspension of the act of August 17, 1833, until such time as the curates mentioned therein should take possession, and until that time things were to remain "in the state they were in before said law was enacted." See Halleck's report, p. 154. It is true, that afterwards new regulations were issued for carrying into effect the act of secularization, and in 1843, at the time the grant of San Lorenzo was made, the Mission property of San Jose was in charge of Amador as mayor domo under said rules; yet in that same year that Mission, with quite a number of others, was ordered "to be delivered up to the very reverend padres. . and said Missions shall in future continue to be administered by the very reverend padres .. in the same man