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1845, he received from the Governor, by a courier, the grant, which he delivered to Rosa. It was in an envelope which the latter opened, and the witness saw and read it.

In reply to the 6th cross interrogatory, he states that the grant was the only paper received by him, and that he did not see the others. He also states that he never saw the certificate of approval until he saw it in the Surveyor General's office; that he saw the petition when Rosa drew it, but that he does not know that Rosa had the petition after he received the grant.

To the twenty-second cross interrogatory, he replies that he never saw the petition and approval attached together until he saw them in the Surveyor General's office.

Jose de la Rosa, the grantee, testifies that he drew the petition in 1845, and that in the latter part of that year, he received it back again with the title. That the title was delivered to him by M. G. Vallejo in December, 1845, and that the certificate of approval was delivered to him by Vallejo subsequently, in the yeur 1846-in January or February of that year.

The credibility of the testimony of either of these witnesses will be considered hereafter. It is sufficient at present to say that neither pretends to account for the papers after their alleged reception by Rosa in 1845 and 1846. No inquiry was made of the latter as to whether he retained them in his custody; why he did not while the property remained his, i. e., up to March, 18th, 1853, present his claim to the Board; whether at the time of the transfer he delivered the papers to the present claimants, or if not-whether as stated by them to their counsel, Mr. Haight, about the same time-they were then in Mexico, and if so in whose custody, and for what reason sent?

In a case where the chief inquiry is whether the papers be genuine, information on these points ought not to be withheld.

We have seen that Jose Maria Covarrubias, in his affidavit in 1853, states it to have been "the practice with the office to return the petition with the grant."

This extraordinary statement is not only disproved by

the notorious fact that the espedientes containing the petition, informes, orders, and concession were usually retained in the archives where they are now found; the grant or titulo being the only document delivered to the party; but it is contradicted by the evidence of M. G. Vallejo, and by the testimony of Covarrubias himself. In his answer to the sixty-second cross interrogatory, he says: "The petitions and the balance of the espedientes were archived in the archives of the government. This was the general practice before, while, and after I was Secretary."

It is to be regretted that the sense of the necessity of accounting for the absence of the petition from the archives, which may have suggested the statement of Covarrubias in his affidavit, did not lead the claimants then or since to offer a more satisfactory explanation of the circumstance.

The claimants can thus derive no aid to their documents from any presumptions of genuineness which might have arisen from their production from the proper custody. On the contrary, they are liable to the suspicions which their long delay in presenting them, and their entire failure to explain circumstances so clearly requiring and so easily admitting of explanation (if the papers are genuine,) naturally excite.

Evidence has been offered to show an occupation by Rosa of the land said to have been granted to him.

The witnesses on this point are Alvarado, Victor Prudon, Mesa, Salvador, Vallejo, Carillo, Juarez and Ortega. Alvarado swears that in 1849 Rosa told him in San Francisco that he was occupying a rancho near Sonoma.

Victor Prudon testifies that in 1840 he knew Rosa to be in the occupation of a rancho called Julpinas; that he had a house and corral on it, and that he remained there until 1846. The witness on his cross examination admits that he never was on the rancho; that he knew of Rosa's occupation "from Gen. Vallejo and common report," and from his sending goods to the place by Rosa's order, or that of his mayordomo.

Mesa testifies that he knew Rosa to be living on and

occupying a rancho in Solano county, long before the Americans came to the country; that he had an adobe house on the place in which he lived with his family; he had a corral and horses, and some cultivation; that he visited Rosa at his house while he lived there; that he saw Rosa building the house, and that the cultivation was about one hundred varas square.

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Salvador Vallejo swears that he knows Rosa has occupied the place ever since he obtained the grant, i. e., in 1845 or 1846; that he had a house and corral, horses and cattle there, and a portion of the land enclosed and culti vated; that Rosa lived there with his family, but at times during the period he has resided at Napa, Sonoma and Monterey.

On cross examination, he states that he knows Rosa has continued to occupy the land, for it is on the road to Sacramento, and he, the witness, has frequently seen it in passing that way.

José Ramon Carillo testifies that he has frequently stopped at Rosa's house on the rancho of Ulpinas; that Rosa was living there with his family; that he had horses and cattle on it, and had erected a corral. The house was an adobe; that Rosa was still on the place when he, witness, left Sonoma two or three years after the Bear Flag war, i. e., 1848 or 1849.

Cayetano Juares testifies that he was in Rosa's house on the rancho in 1845; that it was built of poles, covered with board and tules; that it was near an estuary of the river; that it could not possibly have been seen from the road to Sacramento, it being eight or ten leagues distant ; that there were eight or ten acres cultivated in wheat; that the house was situated about eight leagues from the road running from Sonoma to Sacramento; that on one occasion he lent him horses and carts to take his family to the rancho; that he had lent him horses on several occasions; that the cultivated land was not fenced, but appeared to have been ploughed.

Ortega swears that in 1838, he saw on the land a house built of poles and plastered with mud; that it was situa

ted on the right hand side of the road as you go from Sonoma to Sacramento, about seventy varas from the estero; that he stopped there on his way to Sacramento, and that he saw the house from the travelled path before he turned off to go to it; there was no wagon road to it, but numerous paths made by cattle and elk.

José de la Rosa, the grantee, testifies that he occupied the land; that he kept his wild horses upon it during the year 1846; that they were three or four hundred in number, and marked with his brand, of which he gives a rough drawing. The tame horses, about fifty in number, he kept at Sonoma; that in 1845 and 1846, he frequently visited his ranch with his family; but "he always went with his own horses; he never had horses belonging to any one else."

Salvador Vallejo testifies in a second deposition, that he conveyed De la Rosa in his launch the first time he went to occupy Ulpinas; that a house was built under his and witness' directions, and was built of poles and mud, and roofed with boards; that a piece of land was enclosed and cultivated there, and that the cattle on the rancho were owned by Rosa, but branded with the mark of M. G. Vallejo.

M. G. Vallejo states, in a general way, that he knows that De la Rosa occupied the rancho. He admits, however, that he never was on it after Rosa received his grant.

The foregoing comprises all the testimony adduced by the claimants to prove occupation by De la Rosa of the land.

It is apparent that the witnesses contradict each other on several material points. As to the extent of the cultivation, as to whether or not it was fenced, as to the material of which the house was composed, as to the brand upon the cattle, and especially as to the situation of the house, whether it was near to and visible from the road, or eight or ten leagues distant. The statement of one of the witnesses that he frequently lent horses and carts to De la Rosa, is inconsistent with the declaration of the latter that he always used his own horses in going to his

rancho, while the frequent voyages in the launch, as described by Vallejo, seem wholly to have escaped the recollection of De la Rosa.

It unnecessary, however, to dwell on these contradictions, for the alleged occupation by Rosa of the land, has been disproved by what I cannot but consider a clear preponderance of testimony.

It is in evidence that up to 1853, the lands were treated by the U. S. as public lands, and surveyed as suchFelipe Peña, one of the original grantees of the adjoining rancho of Putos, of Baca, and Amijo, states that Rosa never built a house upon or occupied the rancho; that he is acquainted with the rancheros in that region, and never knew Rosa to be the proprietor or owner of any land.

Demetrio Peña makes the same statement.

John Bidwell, the original grantee of "Elichama,” and who was acquainted with all the rancheros in that part of the country, states that the premises claimed in this case were never occupied or cultivated by any one to his knowledge, and that had De la Rosa lived on the rancho he thinks he should have known it.

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José Berreyesa, who was Alcalde of Sonoma in 1846, states that he was asked by Don Augustin Bernal if he would report favorably to his (Bernal's) petition for the land, whether it was vacant and could be granted; to which he replied that it was vacant and unoccupied, and that so far as he (Berreyesa) was concerned, there would be no obstacle to the grant.

S. Cooper testifies that he was acquainted with all the rancheros in the neighborhood in 1846, and ever since; that he never heard of Rosa's having a grant; that there was no adobe house upon it. That he was assessor during the first two years California was a State; that all the ranchos were given in to be assessed except one—but this rancho was not given in by any one, and was not taxed.

William Denton testifies that in 1852 and 1853, as County Surveyor, he inquired of all the old rancheros in the neighborhood, and that from the information so obtained, he certified this land to be public land. That he

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