121 tion of the grant, have been procured from the archives. For the petition, the informes and the decree of concession form part of the expediente, which remains on file.

That expediente is in evidence in this cause, and contains no decree of concession whatever nor any draft or "borrador" of the formal title delivered to the party, as is almost invariably the case where such a document issued. On the contrary, the last order of governor in effect, refuses, as we have seen, to grant the petition for even a provisional title until a measurement was made, which clearly was not done until after December 1847, if at all.

Besides, if all these papers were procured from the archives, and were delivered to Sandford, how does it happen that only a part of them were restored to the archives and are now produced.

José Ramon Mesa, a witness produced on the part of the U. S., testifies that he was present at the trial of the suit referred to by Mr. Tingley. That no formal title was produced by the Romeros, but only a provisional license to occupy, subject to the boundaries of the neigh

boring proprietors, during the pendency of the proceedings to 122 obtain a title. The witness further swore that he heard Ino

cencio Romero state to Domingo Peralta, in reply to an inquiry as to what title he had, that he had no title-that all he had was a provisional license. That on several occasions he heard Garcia say that he had no title, and that he had intended to take steps to get one, but that all he had was a "provisional license."

This provisional license is in all probability the order made by John Burton, justice of the peace, in April 1847, on the margin of the governor's order of March 23d, 1844, for the measurement of the land, and was in compliance with Romero's petition to him of the 31st March, 1847. The justice of the peace directs that "the interested party will proceed to take possession of the land according to the order of the government," &c. As a copy of Jimeno's order, with this marginal entry of Burton, appears to have been furnished to Romero, and by him sent to Garcia, it is in all probability the "license" referred to. It will not be pretended that any rights could be conferred by such an order of an American justice of the peace, in April 1847. The record of the suit between Peralta and the Romeros has 123 been produced. It contains no evidence whatever even tending to show that a grant was produced at the trial. Antonio M Pico, a witness produced by the claimants, swears that he received an order from the governor to put the coterminous neighbors, Pacheco and Moraga, into possession of their lands, and to measure the same for the purpose of separating them from those of the Romeros. That he was directed by the same order to put the Romeros in possession of the overplus. That he summoned the colindantes, but they did not appear. That he did not then execute the order but repeated the summons to them. That the Romeros made a complaint to the governor, and he, the witness, received from the latter a new order to carry the former into effect, upon which he told the Romeros to go there and settle, which they did in 1844. This witness explicitly states that no title to the land in favor of the Romeros was ever exhibited to him.

124

The orders referred to by Pico are obviously those contained in the expediente. The first order did not, as he supposes, direct him to put the Romeros in possession, but only to measure the land and certify the result, so that it may be granted. Romero's complaint or petition to the governor, stating the failure of the alcalde to measure the land, and asking for a provisional grant, we also find in the expediente, and also the 2nd order of the governor, which, like the former, only directs the measurement of the land. The governor having, as we have seen, adopted Jimeno's recommendation, that the land should be measured and Soto and Romero should present themselves before any grant should issue.

On the parol proof alone, I should come to the conclusion that Mr. Tingley is mistaken in supposing that a grant for the land was ever produced. But the evidence afforded, not only by the expediente but by the repeated declarations of the Romeros themselves, in their various petitions and in the conveyance to Garcia, remove every possible doubt on the question.

The facts of the case are unmistakable. The Romeros solicited land which the governor was disposed to grant. He directed a measurement preparatory to making the grant. And this measurement never was effected. I cannot perceive how this court can recognize these proceedings as giving any title to the land. It may be admitted that in 1844 they went upon the land, as stated by Pico, tho' if so, it is singular that John Burton, alcalde, should in April, 1847, have ordered "the interested parties to proceed to take possession of the mentioned lands, according to the order of the

125

government.'

But this occupation, not authorized, so far as appears, by the government, and only made in pursuance of a verbal permission of Pico, and without the measurement of the land, as required by both orders of Micheltorena, can hardly be deemed to have conferred any title, either legal or equitable, upon the claimants.

The case is, perhaps, a hard one, for there seems no reason to suppose that the grant would have been refused if the measurement had been made and Soto's rights had been found to have been forfeited. But no grant, either perfect or inchoate, was made, nor any promise given that one should be made.

The petitions were favorably received, a provisional grant refused, and a measurement directed. There the action of the government ended, and certainly such proceedings did not confer such a right of property in the land as this court can recognize.

The claim must be rejected.

Endorsed Filed Sept. 16th, 1859.

W. H. CHEVERS,

Deputy Clerk.

127

Order granting stay of proceedings for one week.

United States district court, northern district of California.

THE UNITED STATES

vs.

INOCENCIO ROMERO et al.

At a stated term of the district court of the United States of America for the northern district of California, held at the court-room in the city of San Francisco, on Friday, the 18th day of September, in the year of our Lord one thousand eight hundred and fifty-seven Present: The honorable Ogden Hoffman, district judge.

On motion of E. A. Lawrence, counsel for claimants, it is ordered that a stay of proceedings for one week be allowed, to enable claimants to move for leave to open case and to produce further testimony.

Filed September 18th, 1857.

128

JOHN A. MONROE, Clerk. By J. EDGAR GRYMES, Dep't.

Motion and affidavits of E. A. Lawrence.

In the district court of the United States for the northern district of California.

NORTHERN DISTRICT OF CALIFORNIA, ss:

E. A. Lawrence, of said county, being sworn, says that he is the same who has heretofore made his affidavit on this motion; that he has procured the affidavits of Richmond & Winston since making his last affidavit, which are filed herewith; that he has, at great expense, sought to procure the original title papers in said cause, which he is informed and verily believes were last in the possession of said Sanford, and contained in a box or trunk, left by him at Benecia, containing his papers; that he has used extraordinary diligence in endeavoring to find said trunk or box containing said Sanford's papers, but has been unable to find the same, and verily believes that they have been lost or destroyed.

Deponent further says that he has been informed by Francisco Arce. and Manuel Castro that an honest and bona fide title issued to the

Romeros from Micheltoreno; that said Arce told deponent that he (Arce) wrote the original petition for the Romeros, and, that by 129 documents in his possession at San Luis Obispo, he would be able to give documentary evidence of the dates of the grant and other matters showing its existence. Deponent further says that said Arce is now in the southern district and beyond the jurisdiction of this court, and that his testimony can only be taken by deposition; that he declined to make an affidavit until after consulting his papers, and that deponent has therefore been unable to procure the same.

Deponent further says that Francisco Arce told deponent that Francisco Soto had a spite against one of the Romeros and put in his application for the said ranch for the purpose of preventing the Romeros from obtaining a grant, but that subsequently this matter was arranged, and the grant to the Romeros issued.

Deponent further says that he is informed that Innocentio Romero. will testify that Francisco Soto put in a petition for a portion of the same ranch, but that Micheltoreno refused Soto's petition, on the ground that one ranch, the San Leandro ranch, had been granted to him, and that he could not have two ranches granted to him.

Deponent further says that he has carefully examined the cases in the surveyor general's office, which were presented to the land commission for the purpose of finding said petition of Soto and the pro

ceedings thereon, but deponent says that there is no petition pre130 sented in behalf of Soto or his heirs for any ranch except the

claim of Barbara Soto and al., claimants for the San Leandro ranch, as the heirs of Francisco Soto, that there is no expediente in the surveyor general's office, or any other manuscript, shewing any petition for said ranch by Soto, or any other person for him.

This deponent further says that he is satisfied that considerable testimony can be taken at Monterey, the former capital of California, of which this deponent is now ignorant, tending to shew the existence of a grant to the Romeros.

This deponent further says that he is fully convinced and satisfied, from his examinations and investigations in reference to the title to said ranch, that the same was granted to the Romeros in good faith and in absolute property, and that the title papers are now lost, as above mentioned.

Deponent further says that he has been informed by Innocentio Romero, and expects to prove by him, that his two brothers can neither read nor write; that Burton, the alcade at San José, drew up most of the papers which were filed in the alcade's office himself, without the knowledge of said Innocentio, he having been a friend of the Romeros, and was endeavoring to assist them in fixing their boundaries.

E. A. LAWRENCE.

Sworn to and subscribed to before me this 23d day of Nov., 1857. J. EDGAR GRYMES, Deputy Clerk. Filed Nov. 20th, 1857.

J. EDGAR GRYMES, Dep. Clerk.

Petition for rehearing.

131 In the district court of the United States for the northern district of California.

NORTHERN DISTRICT OF CALIFORNIA, 88:

The petition of the claimants in the above entitled cause respectfully represents to this honorable court

That since the rendition of the opinion of the court herein, rejecting said claim, they have become acquainted with new and important and material facts to prove the existence of said grant, and the loss of the same, which said facts were before to your petitioners unknown, and which said facts appear more fully from the affidavits hereto attached, and forming part of this petition; that said petitioners. made diligent efforts to procure similar testimony before said cause was submitted for decision, but that they were unable to procure the same, as more fully appears by the affidavits hereto attached.

Wherefore your petitioners pray this hon. court to grant a rehearing of said cause, and that the same may be restored to the callendar for further proofs and for such other relief as shall seem meet in the premises.

Filed Nov. 20, 1857.

J. B. CROCKETT,

J. EDGAR GRYMES, Dept. Cľ’k.

Affidavit and motion of E. A. Lawrence.

132 In the district court of the United States for the northern district of California.

E. A. Lawrence, of said county, being sworn, says that he has been engaged as counsel in the above cause with J. B. Crockett, esq'r, the att'y of petitioners, for the last 10 or 12 months; that he became counsel therein by reason of purchase of a portion of said ranch at that time.

Deponent further says that immediately after his said purchase he devoted his whole attention to the prosecution of said claim before this court; that he took the testimony which was taken in this court on behalf of the claimants; that he made a diligent and careful search and inquiry after the original title papers in said cause, but from the information which he was enabled to obtain he verily believes said title papers were lost; that with that impression and belief he took