Opinion of the court.

execution. They are more conveniently and as fully brought before the court by a summary proceeding on motion." The case we cite was in essential respects like this; but the court held it to be "regularly" before it.

Then, is appeal the form of remedy which we should adopt? or ought we, as the other side urges, to rely on a motion for mandamus to vacate the order below? We think that appeal is a proper form, and perhaps the most proper. Here, too, Perkins v. Fourniquet is in point. The case there, like this one, was an appeal, and a motion was made to dismiss it, on the ground urged here by our opponents, that appeal was not the proper practice, and that mandamus alone But what decides the court? "The subject might," says the late Chief Justice, speaking for it, "without doubt, be brought here upon motion, and a mandamus issued to compel the execution of the mandate; but an appeal from the decision of the court below is equally convenient and suitable, and perhaps more so in some cases, as it gives the adverse party notice that the question will be brought before this court, and affords him the opportunity of being prepared to meet it at an early day of the term."

was.

The CHIEF JUSTICE delivered the opinion of the court, announcing that the order in question was a decree, and was a final decree, from which any party aggrieved by supposed error in finding the amount of interest, or in omitting to ascertain and apply to the reduction or discharge of interest the amount of moneys in the hands of the receiver or receivers, might appeal. The ruling of this court in Perkins v. Fourniquet, cited by the appellant's counsel, was a full and direct sanction to this conclusion.

NOTE.

MOTION DENied.

For greater caution, Mr. Carpenter, before this motion was heard, had moved for a mandamus to vacate the already mentioned order of the Circuit Court. The appeal being allowed, that motion was of course refused; the Chief Justice, in announcing such refusal, saying that it was made without express

Statement of the case.

ing any opinion as to the applicability of that remedy to the case before the court.

[For a further part of this case, and for the reasons and justification (under the special facts) of the court below, in executing the mandate as it did, see Railroad Company v. Soutter; infra, p. 510.]

UNITED STATES v. BILLING.

1. The doctrine of United States v. Halleck (1 Wallace, 439), that the decrees of the District Court on California land surveys under the acts of Congress are final, not only as to the questions of title, but as to the boundaries which it specifies, redeclared; and the remedy, if erroneous, stated to be by appeal.

2. Appeals on frivolous grounds, from decrees in cases of California surveys, in the name of the United States, acting for intervenors, under the act of June 14, 1860, discouraged as being liable to abuse; since, on the one hand, the party wronged by the appeal gets no costs from the Government; while, on the other, the Government is made to pay the expenses of a suit promoted under its name by persons who may be litigious intervenors merely.

THE Board of Land Commissioners, established by act of Congress of March 3, 1851, to settle private land claims in California, confirmed, in 1851, to Billing and others, a tract of land granted in 1839 by the Mexican Government to one Felis.

The decree set forth the boundaries of the land essentially as follows:

Commencing at the mouth of the creek Avichi, emptying into the Petaluma marsh, and running up said creek ten thousand varas, to a point called Palos Colorados; thence in a northerly direction five thousand varas, to a place marked by a pile of stones; thence in an easterly direction to a place called Olympali, five thousand varas; from thence with the estuary, around the Punta del Potrero, on the estuary, to the place of beginning; containing two square leagues, a little more or less."

Statement of the case.

The diagram below will illustrate the general position of things; enough to give an idea.

It was admitted that no difficulty existed in ascertaining the boundaries described in this decree.

A survey was made according to these boundaries; but, thus surveyed, the tract included nearly three leagues, and the United States excepted to the survey on that ground.

While the case was pending in the District Court on that exception, one of the deputies of the Surveyor-General of the United States,-not acting under immediate direction of his superior, acting, indeed, without his knowledge at the time, though the principal afterwards issued instructions in execution of what his deputy had done-made a survey which excluded one league on the western side of the Novato tract, including it within another called Nicasio, now patented by the United States; the patent of the Government, however, by its terms, being declared not to "affect the interests of third persons." The District Court confirmed the survey for the tract as it stood, including the Potrero, and excluding the league on the west. This made a tract of about two leagues. From this decree the claimants made no appeal.

Statement of the case.

[The part of the land confirmed which was thus excluded from the Novato tract, and included in the Nicasio, lies in shade in the left of the diagram.] In both the Nicasio and the Novato tract the names of the same persons, either as owners or as attorneys, or as agents or assignees, appeared to have been in some way connected.

In accordance with the Mexican custom, what is called juridical possession-a species of livery of seizin*—was delivered to Felis in 1842 by the Mexican alcalde, of the tract in question, either with the Potrero included or without the Potrero; but whether it was with, or whether it was without, was not clear. The alcalde, in this record, declares:

Being in the fields, in the creek of Avichi, a boundary of Novato, November 13, 1842, I, the magistrate, with two assisting witnesses, coterminous resident neighbors, proceeded to see and reconnoitre the lands of said rancho; and for the better understanding, being on horseback, ['procedi á ver y reconoces las tierras de d'ho rancho, y para mayor claridad puesto á caballo,'] in company with all the parties and witnesses before mentioned, I ordered the aforesaid witnesses to point out the places, limits, and boundaries of the land as they described them in their depositions. They did so; and I, the magistrate, and those of my assistance, saw and examined them and the documents presented, and in testimony I made official note of it, &c."

This officer then goes on to give some account of the measurement, which, he says, was made with a rope of hemp with measures stamped on it; and he concludes that by this rope, well twisted and stretched, it resulted that the rancho has five thousand "varas" in length and ten thousand in breadth. After which conclusion the owner having "been made to know the lands which belong to him, for a sign of true possession and customary form, pulled up grass and stones, and threw to the four winds of heaven, in manifestation of the legal and legitimate possession which he for himself took."

* See it described, Malarin v. United States, 1 Wallace, 284.

Argument for the appellant.

This Mexican record, the judge below, (Hoffman, J.,) after careful examination, thought so inaccurate and incomplete, that he considered himself free entirely to discard it, as hopelessly confused and unintelligible; and his IIonor confirmed to Billing and the others the tract as marked out by the second survey; that is to say, the tract with the western league excluded and the Potrero included. The correctness of his action was the point on appeal here.

Mr. Wills, for the United States, contended, that the owners of both tracts were in fact the same persons; that if the deputy surveyor had not made his survey excluding the league on the west,-the league put into the Nicasio tract,— the Potrero would have been excluded, and the claimants have thus lost the most valuable part of the whole tract; that to get this Potrero they had procured this survey by the deputy surveyor to be made, and had got the one league on the west included in the Nicasio tract (their tract, also, as was argued), in order to get the Potrero included in the Novato. The whole thing, it was urged, was a plan to get three leagues, the Potrero being included, where, otherwise, they would have got but two, with the Potrero excluded. It was argued, upon the evidence, not here reported, that the record of juridical possession did show that the Potrero was excluded, and that the tract of which possession was delivered was the Novato without that and with the part which the deputy had put into the Nicasio. In Malarin v. United States,* this court relied largely on this ancient proceeding of the Mexican law,-the identical form almost of the common law of England; and though no doubt, as was rightly decided in United States v. Halleck,† it will, as a general thing, follow boundaries distinctly given in a decree, it will not do so where it is plain that by the act of juridical possession the party was confined to less space; which space conforms exactly with the amount called for by the very grant confirmed.

Mr. Goold, contra:

* 1 Wallace, 282.

† Id. 439.