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DISTRICT COURT OF THE UNITED STATES,

Northern District of California.

OPINION

DELIVERED BY HIS HONOR

OGDEN HOFFMAN, DISTRICT JUDGE,

IN THE CASE OF

JUAN M. LUCO, ET AL.

NO. 428,

CLAIMING THE

"ULPINAS RANCHO."

P. DELLA TORRE, Esq., United States Attorney.
CALHOUN BENHAM, Esq., for Claimants.

SAN FRANCISCO;

1858.

Whitton, Towne & Co's Print, 125 Clay Street.

District Court of the United States,

NORTHERN DISTRICT OF CALIFORNIA.

OPINION,

DELIVERED BY HIS HONOR, OGDEN HOFFMAN,
DISTRICT JUdge.

JUAN M. LUCO ET AL.,

ADS.

No. 428.

THE UNITED STATES.

The claim in this case is for a tract of land of from thirty to fifty square leagues in extent, constituting a sobrante, or surplus, between various ranchos mentioned in the title. It was rejected by the Board as spurious. The testimony is very voluminous. I have considered it with the attention due to its importance.

The claimants have offered in evidence a paper purporting to be the original petition of José de la Rosa, to the Governor, dated Oct. 18, 1855, with a marginal decree of the latter, dated Nov. 8, 1845, Also, the original grant,

signed by Pio Pico, José Ma. Covarrubias, Sec'y, dated Dec. 4th, 1845, with a certificate of approval by the Assembly, signed by the same persons, and dated December 18th, 1845.

These papers are not produced from the archives of the former government, but were deposited in the Surveyor General's office on the 25th October, 1853, by the claimants.

No claim was presented to the Board within the time limited by the act of 1851. An application was therefore made to Congress, and a special act was passed July 17, 1854, authorizing the presentation of the claim. This application was based upon the affidavits of Pio Pico and José Maria Covarrubias, which will hereafter be noticed.

It is contended, on the part of the United States, that all the papers in the case are spurious, and were fabricated long after the conquest of the country.

In deciding upon the genuineness of any title alleged to have been derived from the former government, the most satisfactory evidence which can be offered to the Court is that derived from the archives, and that afforded by a notorious occupation, and a claim of ownership recognized and acquiesced in, if not by the public authorities, at least by the neighbors and adjoining proprietors of the alleged grantee.

In the case at bar the archives show no trace whatever of the existence of the grant. The petition and marginal decree are presented by the claimants from their own custody. No proofs are offered to explain why the claim was not sooner presented to the Board, nor where or in whose custody the documents have been since their alleged delivery to the grantee. The affidavits on which the application to Congress was founded, were made in May and June, 1853. It is clear that neither to Pico or Covarrubias was the original petition presented. In his deposition, taken before the Board, Covarrubias states that all the documents presented to him, when he made his affidavit, are, he believes, referred to in the affidavit; and that as well as he can recollect, all the documents about which he

was then testifying were presented to him. He is not very positive, however. He remembers that the expedi ente was shown him.

Had the witness before testifying adverted to the affidavit itself, he would have seen that he therein swears that, "he (De la Rosa) presented a written petition for said grant of land, but the affiant does not know where said petition now is. The practice with the office was to return the petition with the grant."

It will hardly be contended that the petition was before Covarrubias when he made this affidavit.

The affidavit of Pico refers exclusively to the "original document hereunto annexed, bearing date Dec. 4, 1845," -which was the grant.

Mr. Haight, who was consulted by the claimants as counsel, testifies that he saw, in 1853, the original document, . e., the grant, but is not positive as to the others, and that "the claimants represented to him that there were other papers in Mexico, which they would endeavor to get."

It is evident, therefore, that so late as the beginning of 1853 the petition had not been brought to light.

It is also obvious, from the tenor of the affidavits of Pico and Covarrubias, that the certificate of approval by the Assembly was not exhibited to them when their affidavits were taken. The affidavit of Covarrubias refers exclusively to the grant. Neither Mr. Haight nor Mr. Hawes pretend to have seen the certificate. It is produced for the first time in October, 1853, when it was deposited in the Surveyor General's office.

No explanation whatever of these circumstances is offered by the claimants, nor has any attempt been made to show how it happened that the petition and certificate became separated from the grant; how they, or at least the former, found its way to Mexico; in whose custody they were found, and when, and from whom, and under what circumstances the person in possession of them procured them.

M. G. Vallejo, one of the principal witnessess relied on by the claimants, testifies that in the month of December,

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