engagements of the adjoining proprietors; and inasmuch as they may not soon get these proprietors to assemble, for the purpose of measuring the land, they solicit in the mean time, a grant of the land provisionally, or in such other manner as the Governer shall see fit, so that they may immediately proceed with their planting, before the season is too far advanced. They state that the neighboring proprietors are satisfied with the boundaries, which the petitioners claim, and are desirous of having them as neighbors, as appears from the report of the alcalde and Secretary of State, in the official documents "which we enclose together with the petition that contains the result to which we limit ourselves."

On the 23rd March, 1844, Jimeno, the Secretary, reported to the Governor, that in his opinion, the order of February 4th ought to be carried into execution, in respect to the measurement of the land, and as soon as this is done with the least practicable delay, the Romeros can present themselves, together with Soto, who claims that he has a right to the land.

On the same day the Governor made the following decree: "Let everything be done agreeable to the foregoing report.' The foregoing papers constitute the "Expediente" on file in the Surveyor-General's office.

The deposition of Pico, the alcalde, was taken in the cause, and he testifies not only to the signatures to the papers, but that he received the order for the measurement of the land, and summoned the adjoining proprietors on two separate occasions, for the purpose of proceeding with it. They did not appear, however, and afterwards said that they were prevented by sickness. That after the Romeros had complained to the Governor of his failure to make the measurement, he received another order from the Governor directing him to proceed with it. This was doubtless the order of the 23d March. He says that instead of executing the order, he directed the Romeros to take possession of the land and settle on it; whereupon one of them (Ino

cencio) immediately went upon it, built a house and corral, and put his cattle on the place, which he has ever since continued to occupy. Other testimony in the cause, establishes beyond question, the fact of occupation and cultivation, by the Romeros and those claiming under them, from 1844 to the present time.

not

These facts establish a clear equity in the claimants, which ought to be perfected into a legal title. Their petition was received with favor by the Governor. The Alcalde reported that the adjoining proprietors, the surplus of whose lands was solicited by the Romeros, only did not object, but desired the grant to be made. The Secretary of State concurred in the recommendation and advised that the lands be measured, in order to ascertain the surplus. The Governor assented, and ordered the surplus to be ascertained, "so that it may be granted to the petitioners." An order was then issued to the Alcalde, to make the measurement. Up to this point in the proceeding it is evident the Governor had acceded to the petition. He was willing they should have the land, and delayed the formal concession and final grant, for the sole purpose of having the surplus segregated from the adjoining ranchos. This was a mere ministerial act, and does not impair the force of the fact, that the Governor, on the 4th February, had decided to grant this surplus to the petitioners, as appears from his decree of that date. The decree amounts but to this: "I accede to the petition and have concluded to grant the surplus as solicited ; but before completing the title, it is necessary to have the surplus measured, which I order to be done, after which I will perfect the grant." In other words, it decrees a survey to be made, not to enable him to decide whether or not he will grant the land, but only as one of the proper steps to be taken towards perfecting the title, which he had concluded to grant. He had already made up his mind to grant it; but before proceeding to make the concession in form, deemed it best to have a survey, in order to establish the boundaries and thus avoid disputes with the adjoining proprietors. In effect, it is pre

In

cisely the same as if he said in express terms, "I grant you the land, but it must be measured in order to ascertain its boundaries.” California, there are many cases in which within the exterior limits of a grant there is a larger surplus over the quantity granted. In the Fremont case for example, the grant was for eleven leagues, to be taken within certain exterior limits embracing at least one hundred leagues. Before Fremont's claim was confirmed and located, it was competent for the Congress of the United States to dispose of this surplus as it saw fit, subject to Fremont's rights. In that stage of the proceeding if an application had been made to Congress for this surplus, whereupon the matter had been referred to a committee, which had reported in favor of the application, and thereupon an act had passed ordering a survey to ascertain and locate the surplus, "in order that it may be granted to the petitioner," and if the petitioner had thereupon entered into the possession, with the authority of an officer, whose special duty it was to deliver possession in similar cases, and if this possession had continued for many years, without disturbance, or the assertion of any claim on the part of the Government, and if, while the matter remained in this condition the territory had been transferred to another sovereign it would be a hard and rigid rule, which would deny to the claimant, at least an equity in the land. But the exact and technical rules which would apply to a grant by our Government, ought not to prevail in respect to Mexican grants. Ours is a system administered by intelligent agents, under strict rules of proceeding, and their acts are interpreted by laws abounding in nice distinctions and subtle technicalities. The Mexican system was plain, simple, and well adapted to the habits of the people. The first step was a short petition to the Governor. If he required further information on the subject, he referred the matter to his Secretary, or some Alcalde, or "Padre." When their reports came in, the Governor either granted or denied the petition. If he acceded to it, he usually issued a concession first and afterward the formal grant. The

granting power belonged to him alone, subject, however, to the approval of the Territorial Deputation, before the title could become absolutely perfect. In all these cases, therefore, the question to be ascertained is whether the Governor in fact assented to the petition. If it appears on the face of the papers, found in the archives, that there was a petition, and "informe," and that the Governor assented to it, this of itself, establishes an incohate title, and creates an equity, especially when accompanied with long possession, which our Government and Courts will respect. It matters not in what words, his assent is expressed, provided they are sufficiently intelligible to declare the fact that he does assent. That he did accede to the petition in this case, is evident from the fact that the reports of the Alcalde ard Secretary were both favorable—that no opposition was made by the adjoining proprietors, who on the contrary favored the application and that the Governor upon these reports ordered the land to be measured, "so that it may be granted to the petitioners." It is a distinct declaration, that he acceded to their application;—and if the expediente had stopped at this point it would not, we apprehend, have been seriously questioned, that the claimants acquired an equity which ought to be protectod. But at the argument in the District Court, it was said on behalf of the United States, that a new face was put upon the proceeding by the Governor's decree of the 23d March; that at this time, being informed of the pretension set up by Soto to the same land, he simply ordered a survey and directed the Romeros and Soto to appear before him, in order that he might adjudicate their respective claims; and that it does not appear from the archives, that Romero and Soto ever appeared before the Governor, or that any further steps were taken in the matter. It is true, the expediente exhibits no further proceedings; but the archives show the fact, that another rancho called the "Rancho San Lorenzo " was granted to Soto, which has since been finally confirmed to his widow and heirs; (See Jimeno's Index for the grant to Soto), and the oral testimony

clearly establishes, that Romero and Soto did appear before the Governor, and that on that occasion Soto waived his pretension to this land, in consideration of the grant to him by the Governor, of the rancho "San Lorenzo."

It further appears, that immediately after the 23d March, the Romeros, with the authority of the Alcalde, entered into possession, and they and their vendees have ever since resided on the land. Their right to the possession was not questioned, whilst Mexico continued to exercise dominion; on the contrary, the possession was open, notorious and evidently bona fide, under a claim of title, which was recognized by all the "colindantes," and which Soto, nor the Mexican Government, ever attempted to disturb. The expediente, as shown by the proof, consists of several documents, not fastened together. It may have happened, that other documents pertaining to it, were lost or destroyed, during the rough usage to which the archives were exposed, at the conquest of California, as shown by the depositions of Generals Halleck and Fremont, to be found in the record of this case. At all events, the fact that Soto has never asserted any title or claim to the land-that another tract was granted to him about the same timethat the Mexican Government never disturbed or questioned the propriety of Romeros' possession-that the claim of the Romeros was notorious and was acknowledged to be valid by all their neighbors, is strong, if not conclusive, evidence, that Soto abandoned his pretensions to the land, and tends strongly to fortify the testimony of Inocencio Romero, who swears that he and Soto appeared in person before the Governor, and that Soto expressly abandoned his claim, in consideration that the Governor would grant him the tract of San Lorenzo. Unfortunately the Governor, his Secretary, and Soto, are all dead; but Romero, who has no interest in the land, testifies positively to these facts, and the truth of his statement, is established by the circumstances referred to. It is manifest that on the 23d March, the Governor had decided to grant the land to the Romeros, unless it should appear that Soto had