Opinion of the Court. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Perez petitioned for the grant " pursuant to the provisions of the national laws and the terms of the royal cedula of February 14, 1805." That cedula provided that, (for the reason "that the settlement of a sitio of a league in extent was very difficult for a person of large means, and that lands of large area were held without this legal obligation having been fulfilled to the prejudice of others,") "there should not be adjudicated nor granted more than three or four tracts (to the wealthy), and two to the poor;" "with the understanding that the lowest estimate was not to be less than ten dollars for lands without water, thirty for lands irrigable by means of wells, and sixty for those capable of regular irrigation." Reynolds, p. 72. Recognizing the limitation, Perez prayed for the sale to him of "the four sitios." The entire proceedings were directed to the acquisition of four sitios. Four sitios were valued; four sitios were put up at the auctions; four sitios were purchased; four sitios were paid for; and four sitios were granted. The intention to convey only so much and no more is plain, and is controlling. The title of the grantee was limited to that quantity. Ainsa v. United States, 161 U. S. 208; Ely's Administrator v. United States, 171 U. S. 220; United States v. Maish, 171 U. S. 277; Perrin v. United States, 171 U. S. 292. The cabida legal, or lawful area, was, therefore, four sitios or something over seventeen thousand three hundred and fifty acres, and this lawful area, "the four sitios," was described by Perez as "the depopulated place down the San Pedro River, situate in this province, toward the north, on the hostile frontier, close to the abandoned place of Las Nutrias." The primitive survey was at the place of San Pedro, and Las Nutrias was two or three miles to the southwest. It is plain that the old house of San Pedro was in existence at that time. When Antunes appeared from the place of Terrenate, which was a short distance west of the house of San Pedro, he was willing that the survey should proceed "from the house of San Pedro down the river," (the river ran north or somewhat east Opinion of the Court. of north,) while Perez claimed it should be located up the river to get the benefit of the water of the marsh. This dispute was compromised by agreeing to divide the water of the marsh, which lay some distance above the house of San Pedro. The starting point of the survey was plainly up the river from the house, and then the line ran below it, for the survey states: "I caused a monument to be placed at a rectangular corner, from which, taking the course southwest to northwest, there were measured and counted fifty cords, the last of which terminated down the river from the house, on the edge of the ford, on the bank." That the house of San Pedro was an important call in the location of the grant on the ground is unquestionable. That house was the ancestral home of the Elias family, and on that place some of its members still reside. It was and is in Mexico, several miles south of the boundary line. Accordingly when Manuel Elias made a formal denouncement, July 8, 1880, of the demasias there might be in the ranch of San Pedro, and it became necessary to mark the cabida legal on the ground, the Mexican authorities laid off the four sitios so as to embrace the San Pedro settlement. The omission of San Pedro from the lawful area of the San Pedro grant would have, indeed, been something remarkable. The owners of the grant thus obtained from Mexico full satisfaction of its cabida legal, and no legal or equitable claim therefor existed against the United States when this petition was filed. In Ainsa v. United States, 161 U. S. 234, it was said: "We have referred to the proceedings of 1882, 1886, in Mexico, as furnishing persuasive evidence of the proper construction of this grant under Mexican law, and it may be further observed that the adjudication of the overplus required the location of the 7 sitios, which location Mexico, as the granting government, assumed it had the right to make, and made out of the land within its jurisdiction. In this way the grant was satisfied by the receipt of all the grantees had bought and were entitled to under the Mexican law, the result as to the overplus inuring to Camou's cotenants by the terms of his petition." In Ely's Administrator v. United States, 171 U. S. 220, the court, referring to linsa's case, observed: "In that case it ap Statement of the Case. peared that while the boundaries of the survey extended into the territory ceded by Mexico to the United States, the grantee had taken and was in possession of land still remaining within the limits of Mexico to the full extent which he had purchased and paid for, and therefore no legal or equitable claim existed against the United States in reference to the land within the ceded territory." It is quite impossible to entertain the proposition that the Court of Private Land Claims should have adjudged to appellants another cabida tegal on this side of the boundary line. According to the doctrine of Ely's case no different location could have been recognized-if the entire area had been in this country. Something is said in respect of the right to confirmation of the tract sued for treated as demasias. But, apart from other insuperable objections to that suggestion, such a claim would be imperfect for want of fulfillment of conditions, and barred by section 12 of the act of March 3, 1891. Decree affirmed. AINSA v. UNITED STATES. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. No. 40. Argued January 29, 1902.-Decided March 17, 1902. This case is governed by Reloj Cattle Company v. United States, just decided. The grant was a grant by quantity, and the lawful area was south of the international boundary line, and had been set off to the owners by Mexico. The right to acquire demasias or overplus was not a vested right, and where the conditions were unfulfilled in accordance with the terms of the grant at the time of the cession, claims to demasias cannot be confirmed. THIS was a petition filed February 28, 1893, by Ainsa, as administrator, against the United States and one Whitney, for confirmation of the Agua Prieta grant, so called, which he represented he owned by virtue of "a grant title," dated De Statement of the Case. cember 28, 1836, made by the Mexican Republic under article eleven of decree No. 70, of August 4, 1824, aud a law of the States of Sonora and Sinaloa, No. 30, of May 20, 1825, and other decrees, embodied in sections 3, 4, 5, 6 and 7 of chapter 9 of the organic law of the treasury, No. 26, of July 2, 1834; and that regular and lawful proceedings were had under those laws, by which the Mexican government, December 28, 1836, sold and conveyed the land to Juan, Rafael and Ignacio Elias Gonzales in consideration of $142.50 and other valuable considerations. The proceedings were set out at length in the petition. The United States answered, denying the ownership and possession of the petitioner, and alleging that the grant by the State of Sonora was void; that the grant was located within the Republic of Mexico; that it was confirmed in 1882 to Camou brothers by the Mexican government, and lay south of the boundary line; that the demasias of the grant was also confirmed to Camou brothers: and that a large area remained between the north boundary of the grant and of the demasias and the boundary line, which had since been purchased from Mexico by Camou brothers. February 14, 1899, on which day the cause came on for trial, petitioner filed an amended and supplemental petition, averring" that prior to the treaty known as the Gadsden treaty no resurvey of said grant had ever been applied for or ordered by any one, and that neither the grantees nor their successors in interest had, prior to said treaty, any knowledge or notice that within the said monuments there was an excess of land over the area stated in said title papers, and petitioner avers that the grantees under said grant were, under the laws of Mexico and the State of Sonora existing at the date of said treaty, and for a long time prior thereto had been, holders in good faith of any such excess or surplus, if any such there is, and entitled to occupy and retain the same as their own, even after such overplus is shown, without other obligation than to pay for the excess according to the quality of the land and the price that governed when it was surveyed and appraised; and petitioner further avers that if this honorable court should decide that said sale, as recited in said title papers did not, as petitioner avers it did, convey to the grantees Statement of the Case. therein all of the said tract of land to the monuments described in said title papers without further payment therefor, he is ready and willing and now offers to pay to the United States of America any amount that may be found to be due from him for such overplus, and also the costs for ascertaining the same, as soon as the amount of the same and the sum due therefor is ascertained." Petitioner tendered the sum of $600 in gold in payment of the overplus and $200 in gold for costs, offered to pay whatever might be adjudged due, and prayed "that upon said payment this honorable court decree that petitioner is entitled to and is the owner of all of said tract of land, as originally surveyed, including said overplus or surplus, and that by said decree he be secured in the possession and ownership of the whole of said tract," etc. The area delineated on petitioner's maps, as included in the grant claimed, was 163,797.48 acres. The Court of Private Land Claims rejected the claim, and dismissed the petition. The documents covered three tracts of land called, respectively, Agua Prieta, Naidenibacachi, and Santa Barbara. And it appeared that on July 21, 1831, Juan, Rafael and Ignacio Elias Gonzales petitioned the treasurer general of Sonora, stating that they had cattle and sheep whose numbers they could not feed on the sitios belonging to them, for which reason the stock wandered to the four points of the compass, more particularly toward the waters of the Santa Barbara, Naidenibacachi, Agua Prieta, and Coaguyona, by which they suffered incalculable damage. They therefore made denouncement of the lands that might be" found to be public lands within the points and waters aforesaid, which are bounded on the north by the Chiricahua Mountains, on the south by the lands of the Sinaloas, on the east by the mountains of Coaguyona, and on the west by the lands of the Saus;" and petitioned that, under the law of May 20, 1825, the denouncement might be admitted, and orders issued for the survey, appraisement, publications, sale and other necessary proceedings. The petition was referred, testimony taken and report made as to the necessities of the case, and in October, 1831, at Hermosillo, Treasurer General Mendoza appointed Joaquin VOL. CLXXXIV-41 |