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the ranchos mentioned. On the contrary, it does lie east of the Moraga, that is, on the side most remote from El Sobrante.

More than this, it does not even lie within the exterior boundaries of the Moraga claim. It falls outside of what is known as the Higley survey of said rancho, which survey, I decided in the Docking case, (supra) located substantially the exterior boundaries of said rancho, as claimed.

I therefore decide that the land in question was not in reservation at the date (July 30, 1878,) when the additional homestead entries were made, but was public land subject to entry. This being the case, the allowance of said entries was proper. The land was appropriated thereby. The entries are still of record. Indeed, final certificates had ⚫ issued on account of same prior to appellant's application and prior to his alleged date of settlement.

Your decision rejecting said application is affirmed.

CAPITAN GRANDÉ CAÑON (INDIAN) RESERVATION.
JAMES MEAD.

The lands in question, in Capitan Grandé cañon (which have recently been set apart as a reservation), were in 1853, long prior to the entry, occupied by the Indians with consent of the government, and under direction of the military authorities; since the cancellation of the entry was made by order of the Depar.ment, the appeal is dismissed.

Secretary Teller to Commissioner McFarland, November 28, 1884.

I have before me the appeal of James Mead from your decision of January 8, 1884, canceling his homestead entry No. 987, upon the N. of N. W., and the N. of N. E. 4, of Sec. 22, T. 10 S., R. 2 E., S. B. M., Los Angeles district, California.

This is one of a number of cases of alleged wrongful appropriation of lands in the Capitan Grandé cañon, which have been occupied, with the consent of the government, by the Indian tribe bearing the same name since 1853, when the military commandant at San Diego assigned and allotted said canon for their use. By executive order of June 19, 1883, the tract was formally set apart as an Indian reservation. The Commissioner of Indian Affairs having brought these entries to my atten tion, I issued an order (June 7, 1883,) for their cancellation.

It was in pursuance of said order that you directed the cancellation of Mead's entry. His appeal from your action is therefore dismissed.

THE MORAGA GRANT.

JOEL DOCKING.

The claimed limits of Joaquin Moraga's grant (Laguna de los Palos Colorados) are to be determined with reference to the claim filed with the board of land commissioners, which, the evidence shows, was substantially located by the Higley survey, made in April, 1855. The grant was finally located within the exterior limits on August 10, 1878, by the approval of the Boardman survey and issue of patent. As the tract which Docking claims was not within the claimed limits of the Moraga rancho, as indicated by the Higley survey, it was subject to the soldiers' additional entries made on August 8, 1878, which barred his subsequent settlement in 1880.

Secretary Teller to Commissioner McFarland, July 15, 1884.

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I have considered the appeal of Joel Docking from your decision of March 26 last, rejecting his application to file pre-emption declaratory statement, for the reason that the land was covered by certain soldiers' additional homestead entries, filed August 8, 1878. Your decision so fully and clearly sets out the history of the Moraga grant and claim . . . that I deem a recital here unnecessary. Concurring, as I do after careful consideration, in the conclusions of law and fact reached by you, I do not regard the case as calling for any extended argument on my part. I am satisfied that the Higley survey locates substantially the exterior boundaries of said rancho, as claimed.

COMMISSIONER'S DECISION.

The appeal of Joel Docking from your action rejecting his application to file pre-emption declaratory statement for the S. E. of Sec. 32, T. 1 S., R. 2 W., M. D. M., is before me for consideration.

Docking, the appellant, applied to make his filing May 12, 1883, alleging settlement August 20, 1880, and his application was denied by you on the ground that the land was covered by certain soldiers' additional homestead entries, filed August 8, 1878. The ground of appeal is that at the date of the homestead entries the land was not subject to entry, being within the claimed limits of the rancho El Sobrante, the question of the location of said claim being then pending undetermined.

In my decision of November 10, 1883, in the case of Ernest Trelut (see 3 L. D., 228), it was held that the statutory reservation for El Sobrante claim was limited to lands lying between the five ranchos of San Antonio, Pinolé, San Pablo, Valencia and Moraga, and did not extend to lands lying outside of the exterior boundaries of any of them and not between them. That decision is applicable to this case, in as far as regards the claimed limits of El Sobrante, the tract in question not lying between the said five ranchos and therefore not reserved August 8, 1878, on account of the Sobrante claim.

It however is alleged to have been within the exterior boundaries of the Moraga rancho, "Laguna de los Palos Colorados," the location of which was at the time of said homestead entries pending undetermined, and therefore was not subject to entry at that date .. The Moraga rancho was granted to Joaquin Moraga and Juan Bernal by Governor Alvarado, for three square leagues-sitios de ganado mayor-August 10, 1841, by the following specified boundaries: “At the north by the Arroyo

de San Pablo-San Pablo Creek—a straight line to the east, inclusive of an Ojo de Agua-spring of water-which lies contiguous to the Corral Antiguo; at the south by the establishment of San José; at the west by the Sierra-mountain ridge-up to the top of it, and at the east by the Cuchilla de las Trampas." The claim was confirmed by the board of land commissioners, January 23, 1855, for three leagues, more or less, by the boundaries set forth in the grant; and at the same date the board ordered a transcript of the proceedings and decision to be filed in United States district court. The court by its decree of March 24, 1856, confirmed the claim by the same description of boundaries, reference to be had "to the original grant and maps contained in the expediente filed in this case," but restricted the quantity to three square leagues and no more; and its decree became final by waiver of appeal, April 8, 1858, which ended the proceedings on title. Under instruc tious of the surveyor general of March 7, 1855, issued upon the application of the attorney for the claimants, a preliminary survey of the claim was made by United States deputy surveyor Higley in April, 1855, the object of said survey being, as stated in said instructions, to segregate the claim from the lands of the public domain, and to locate it agreeably to its specific boundaries. As this survey is an important incident in the determination of the question raised by the appeal with reference to Moraga, its history will be here briefly stated.

The act of March 3, 1851 (9 Stat., 631), organized the land commission, and created the machinery for the adjudication and patenting of private claims in California originating in Spanish and Mexican grants. The thirteenth section made it the duty of the surveyor general to cause all such claims, which should be finally confirmed, to be acurately sur veyed, and to furnish approved plats of the same, upon which patents should issue. An item in the civil and diplomatic bill passed August 31, 1852 (10 Stat., 91), made appropriation for surveys of unconfirmed claims which had been presented to the land commissioner in good faith; but provided that the authority thereby conferred on the surveyorgeneral should only apply to such unconfirmed claims as, in the gradual extension of the lines of the public surveys, he should find within the immediate sphere of his operations, and which he should be satisfied ought to be respected and actually surveyed in advance of confirmation. It appears from reference made in a letter of instructions of this office to the surveyor general of February 19, 1853, that early in the history of the land commission, the commissioners, in some cases, issued orders for initiatory surveys upon application of claimants (and it is presumed at their expense, and probably to aid them in presenting their claims), but had discontinued the practice. The surveyorgeneral, however, decided to continue making surveys of unconfirmed claims, when applied for by parties interested, without the order of the commissioners therefor; but, being in doubt as to the propriety of treating claims which had not been confirmed by the land commission, but were liable to be confirmed, or were pending on appeal, as unconfirmed, declined to make surveys in such cases. This office, however, by the letter of instructions aforesaid, approved the conclusion of the surveyorgeneral as to surveys of unconfirmed claims, and advised that claims confirmed by the commission, but still not finally determined, should be regarded and treated, in regard to preliminary surveys thereof, as unconfirmed claims.

At the time the Higley survey was made, the Moraga claim had been confirmed by the laud commission, and by operation of the statute was pending on appeal to the district court. There is nothing to show that

the lines of the public surveys were being extended in the vicinity of the claim; indeed, the plat shows no symptoms of contiguous public surveys; and while the survey was not authorized by the clause aforesaid in the act of August 31, 1852, it certainly was by said instructions. The record also shows that in July, 1858, after the confirmation of the claim by the decree of the district court aforesaid, a survey of the claim, limited however as to quantity, was made by United States deputy-surveyor La Croze, which was approved by the surveyor-general November 20, 1860, published under the act of June 14, 1860, and, on objections, ordered into the United States district court August 29, 1859. This survey was rejected by a decree of the district court, rendered on the twenty-seventh day of July, 1874, which also directed how the survey should be made, and specified in detail the boundaries fixed by the decree of confirmation as the exterior limits within which the three leagues confirmed should be located. This decree was affirmed, by a decree of the United States circuit court, December 4, 1874, which terminated the judicial proceedings upon survey.

A new survey was accordingly made by United States deputy-surveyor Boardman in 1875, which was approved by the surveyor-general December 20, 1877, and by this office by its decision of April 13, 1878. On appeal from said decision to the department, the Secretary of the Interior, under date of August 9, 1878, held that said survey was made in substantial compliance with the decrees of the district and circuit courts, that there was no error in the decision of this office aforesaid, and pro forma dismissed said appeal. The survey was thereupon finally approved by this office August 10, 1878, and patent issued of that date. This was the termination of the proceedings on survey, and the final location of the claim.

By the act of March 3, 1851 (9 Stat., 631), in effect, and the sixth section of the act of March 3, 1853 (10 Stat., 246), in terms, "lands in the State of California claimed under any foreign grant or title" were reserved from entry as public lands of the United States. Pending proceedings for the confirmation and location of such claims, the decision of the courts and the practice of the Land Department have conformed to this rule, which is fully declared and enforced in the case of Newhall v. Sanger (92 U. S., 761), and in Van Reynegan v. Bolton (95 U. S, 33), and which applies as well to grants for quantity within exterior boundaries containing larger area as to those by boundaries without specification of quantity. In the present case, which was a grant for three leagues within larger exterior boundaries, it becomes necessary to locate those boundaries in order to ascertain and determine whether the tract in question fell within them as surplus resulting from the final survey; for if determined affirmatively, it did not become public land until the approval of said survey and the issue of a patent thereupon, August 10, 1878.

The northern, eastern, and western boundaries are correctly represented by the Higley survey, but the southern boundary, which is described in the grant and confirmation as the establishment of San José, as located by said survey, seems to be controverted. The boundaries of the establishment of San José, if it ever had any, are not designated by any permanent marks on the ground nor by natural objects; and inasmuch as the lands which formed the areas of missionary occupation were within the control of the government and subject to grant, and consequently liable to change from time to time, it is difficult even to approximately locate them. The said sixth section of the act of March 3, 1853, as construed by the decision of the Supreme Court of the

United States in the case of Newhall v. Sanger (supra) reserved until the grant in this case was finally located, only such land as was claimed; and it follows, therefore, that the sense in which the words, establishment of San José, are used as a boundary, must be determined with reference to the claim filed before the board of land commissioners and the United States district court in the proceedings upon title.

According to the grant, the boundaries contained three leagues of land, a little more or less. The record shows that the petition for its confirmation was made by Joaquin Moraga, one of the original grant

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It will be observed that the witnesses testify with great particularity as to the boundaries claimed by Moraga, that they embrace about three leagues of land, not to exceed three and one-half; and such was the judgment of the commissioners, which is entitled to much consideration in view of the authorities hereinafter cited, as will appear from the following extract from the opinion delivered in the case: "The proof shows a full compliance with the conditions of the grant, and the boundaries are described in the grant and delineated on the map to which reference is made with sufficient certainty to obviate any difficulty in their indentification and location. It is also in proof that the quantity of land embraced by them is about three leagues, not exceeding three and a half;" (Decisions of Board, Vol. 2, p. 461.)

In U. S. v. Fossatt (21 How., p. 445), the Supreme Court, in speaking of the powers and duties of the board and courts under the act of 1851, said: "But, in addition to these 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." This doctrine was reaffirmed in the Fossatt case (2 Wall., 707). In U. S. v. Sepulveda (1 Wall., 107, 108), the Court said: "It is true, for the determination of the validity of claims presented, some consideration must have been had of their extent, location and boundaries. The petition of the claimants must necessarily have designated, with more or less precision, such extent and location."

The map "A. P. L." referred to in the testimony and the decrees of confirmation for a more particular description of boundaries is the diseño. It represents the grant as nearly surrounded by mountains. On the east is the well defined mountain ridge called "Cuchilla de las Trampas." At the point which may be taken as the southeast corner, the range makes a bend bearing a little south of west, and from thence the boundary is represented as a succession of hills or mountains extending nearly the width of the area represented. In the southeastern corner and where the Las Trampas makes the bend, the Las Trampas creek has its rise. This is regarded as a very important feature in locating that corner, as the source of said stream is found by an examination of the diagram of T. 1 S., R. 2 W., M. D. M., transmitted by the surveyor-general of California, pursuant to my letter of September 12, 1883, calling upon him. to locate the Cuchilla de las Trampas in connection with the public surveys, the one branch about sixty chains and the other about twenty chains north of the southeast corner of the Higley survey, and within its eastern and southern boundaries, thus showing reasonable conformity with the diseño as to the location of that corner. At this corner said diagram also shows that the Cuchilla de las Trampas makes a bend and extends thence in a northwesterly direction, instead of southwest as shown by the diseño. According to the diseño Moraga's improvements are located almost due west of the southeast corner on the western bound

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