United States v. Fossat.

The point made by the New Almaden Company rests upon the following condition annexed to the grant:

"2. The land herein referred to is one league of the larger size, a little more or less, as is explained by the map accompanying the espediente. The judge who shall give the possession shall have it measured, in conformity to law, leaving the surplus which remains to the nation, for the purposes which may best suit it."

To this point it is answered:

1. The direction to the judge to "have it measured in conformity to law, leaving the surplus which remains to the nation," is a formal direction, accompanying most, if not all, California grants, and does not in this case limit or define any precise quantity. This direction is annexed to grants, whether there be or be not any surplus, and it does not import that any surplus will remain.

The surplus to be left to the nation is what remains after "it," viz: "the land herein referred to" shall be measured. But the "land referred to" is one league of the larger size, a little more or less, as is explained by the map accompanying the espediente. No exact quantity is expressed in the condition, but reference is made to the espediente as explaining what has been granted and is to be measured. The condition therefore expresses an indeterminate quantity, to be made certain by measurement according to the boundaries defined in the grant itself, in connection with which the condition is to be interpreted, and by the map to which reference is made. The words "a little more or less" following the words "one league of the larger size," repel the idea that exactly one league and no more was intended; for if that exact quantity was meant, the words "a little more or less" would not have been added.

In every California case decided by the Supreme Court, it has been held that the subsequent conditions could not defeat the precedent grant. And although a limitation of quantity clearly expressed may restrict prior terms of larger import, yet, in the absence of clear expression, such restriction is not to be imposed. It is a fundamental rule of construction, that a consistent and reasonable effect is to be given, if possible, to all the words of a written instrument. The addition of the words "a little more or less," implies some meaning in the grantorfor explanation of that meaning, distinct reference is made by the condition itself to the diseño. The grant, then, is for land not limited to an exact quantity by the condition, but "as is explained" in the diseño. The grantor used words having some meaning, and referred to a particular document to ex

United States v. Fossat.

plain, and which does explain, that meaning consistently with the boundaries specified in the body of the grant; the words therefore cannot be rejected, nor the condition construed as if they were stricken out.

In the case of The United States v. Larkin et al., 18 How., 561, the Supreme Court held that "the plan or sketch in the espediente, in connection with the description given in the grant, furnishes all the materials essential to determine the boundaries." That creeks, hills, and mountain ranges, exhibited on the maps or diseño, and referred to in the grant, are adequate monuments, and define boundaries of California grants with sufficient certainty, was decided in Pedrorena's case. (19 How., 365.)

No principle of law is better settled, than that designated boundaries called for in a grant control in general the quantity of land that passes by the grant.

Of the multitude of cases on this point, reference to a few only need be made. "Where the boundaries of land are fixed, known, and unquestionable monuments, although neither courses nor distances, nor the computed contents, correspond, the monuments must govern." (6 Mass., 131; 2 Mass. Rep., 380; 5 Pick. Rep., 135; 6 Wheat., 582; 8 Wend., 183; 1 U. S. Dig., Bound., 474, and cases cited.)

"Where a deed describes land by its admeasurement, and at the same time by known and visible monuments, these latter shall govern. "(4 U. S. Dig., Bound., and cases cited; Cleveland v. Smith, 2 Story, 278; Nelson v. Hall, 2 McLean, 518.)

"In locating lands, well-ascertained natural or artificial boundaries are to prevail over course, distance, and quantity; and although the boundaries included 136,000 acres instead of 14,900, the number called for by the deed, the boundaries were held to govern." (Sturgeon v. Floyd, 3 Rich, 80.)

An illustration of this rule is furnished by an early decision of the Supreme Court of the United States, Lodge's Lessee v. Lee, 6 Cranch, 237, where a grant of an island by name, superadding courses, distances, and quantity, which were found to exclude a part of the island, was held to pass the whole island, without regard to the courses, distances, and quantity, called for by the deed. (6 Cranch, 237.)

But it is deemed needless to multiply authorities upon a rule of law so well established.

Mr. Justice CAMPBELL delivered the opinion of the court. The appellée presented to the board of commissioners, appointed under the act of Congress of the 3d March, 1851, (9 Stat. at L., 632, ch. 41,) to settle private land claims in Cali

United States v. Fossat.

fornia, a claim for three-fourths of a league of land, known as part of the Cañada de los Capitancillos. He produced to the board satisfactory evidence of the authenticity of a grant from the Governor of California, bearing date in 1842, to Justo Larios, for a parcel of land having that name; also that Larios had occupied, improved, and cultivated it, conformably to the conditions of the grant; that in 1845 he had sold it to a person from whom the appellee deduced his title to an undivided three-fourths interest, and that his share had been set apart to him by a valid conveyance. The board pronounced in favor of the validity of the grant, and rendered a decree of confirmation in favor of the claimant for land included in specific and well-defined boundaries, but adding as a part of the description the quantity that was embraced in them. It is somewhat doubtful whether the board designed to impose a limitation to the claim for the quantity thus declared. From this decree the United States appealed to the District Court. In that court the appellee confessed that the decree of the commissioners was erroneous, because it did not describe in a manner sufficiently certain the boundaries of the tract of land intended to be confirmed to the claimant, and consented that the decision should be reversed, and such decree be entered in the District Court as might be lawful and proper upon the whole evidence.

The claimant proceeded to examine a number of witnesses to identify the locative calls of the grant to Larios, and produced documentary evidence from the archives disclosing the circumstances under which the grant was asked for and obtained, in order to determine with exactness the subject on which it was designed to operate. He also procured a survey from the surveyor general of California, to exhibit the extent and description of the land included in the claims of those who now represent the rights of Larios. Much counter evidence was adduced under the direction of private and adversary claimants, to whom the law officers of the Government of the United States in California seem to have committed the preparation of the case on the appeal to the District Court, and who were allowed to maintain, in the name of the United States, the alternative of the issue tendered by the claimant.

The District Court confirmed the claim of the appellee to land limited by specific boundaries, and ascertained those boundaries, as they exist on the land, with precision. Under this decree, the grant to Larios includes seven thousand five hundred and eighty-eight and ninety hundredths acres.

It is the opinion of the court that the intervention of adver

United States v. Fossat.

sary claimants in the suit of a petitioner, under the act of 3d March, 1851, for the confirmation of his claim to land in California, is a practice not to be encouraged. The board of commissioners was instituted by Congress to obtain a prompt decision on the validity of private land claims, to enable the Government to distinguish the public land from that which had been severed from the public domain by Mexico; and that it might fulfil the obligation assumed at the time of the cession of California, to secure and protect the property of its inhabitants. The jurisdiction of the board of commissioners in the first instance, and the appellate jurisdiction of the courts of the United States, are limited to the making of decisions on the validity of the claim, preliminary to its location and survey by the surveyor general of California, acting under the laws of the United States. This officer is required to survey and to furnish plats of the claim that may be confirmed.

In reference to interfering and conflicting claims, he is authorized to decide by adopting the lines agreed to by the claimants; and in the absence of an agreement, to follow the rule of justice. The acts of Congress provide, that neither the decisions of the commissioners, nor of the District or Supreme Court, nor of the surveyor general, nor the surveys or patents made in pursuance of them, shall preclude a legal investigation and decision, by the proper judicial tribunal, between parties having such interfering claims; and provision is made in the act of 3d March, 1851, for a contest of the right of the confirmee before the issue of the patent, but after the location and survey; and a patent under the act is only conclusive between the United States and the claimant, and does not affect third persons. (9 Stat. at L., 631, ch. 41; 4 Stat. at L., 492, ch. 116, sec. 6.) The language and policy of these enactments limit a controversy like the present to the United States and the claimant.

We concur in the opinion of the board of commissioners and of the District Court, that affirms the validity of the grant of the Governor of California to Justo Larios, and the regularity of the conveyances through which the claimant deduces his title.

The papers in the record show, that in 1842 the proprietors of adjacent ranches in the valley de los Capitancillos (Larios and Berreyesa) had a dispute concerning the location of their line of separation, which was carried before the public authorities for settlement; that Larios, after the adjustment of the controversy, represented to the Governor that, since 1836, he had occupied his place in the cañada under a purchase from a former proprietor; that the records of his title had been lost,

United States v. Fossat.

and that he desired to obtain a grant which would declare his right. This petition was accompanied by a sketch of the property, and its contents were represented to be one league, a little more or less. The Governor made the necessary order for the issue of the grant, in conformity to the prayer of the petition, and the grant itself was issued in August, 1842. In the grant, the petition for the land known as Capitancillos-bounded by the sierra, by the Arroyo Seco on the side of the establishment of Santa Clara, and by the rancho of the citizen José R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward, to the sierra, passing by the eastern base of the small hill situate in the centre of the cañada-is recited; and the Governor granted it to Larios, to be his property, subject to the approval of the Departmental Assembly, and to the performance of four conditions. The second and third of these conditions are:

"2d. He shall solicit the proper judge to give him judicial possession, in virtue of this decree, by whom the boundaries shall be marked out, and he shall put on the boundaries, in addition to the landmarks, some fruit trees or useful forest

trees.

"3d. The land herein referred to is one league of the larger size, a little more or less, as is explained by the map accompanying this espediente. The judge who shall give the possession shall have it measured, in conformity to law, leaving the surplus which remains to the nation, for the purposes which may best suit it."

The southern, western, and eastern boundaries of the land granted to Larios are well defined, and the objects exist by which those limits can be ascertained. There is no call in the grant for a northern boundary, nor is there any reference to the diseño for any natural object, or other descriptive call, to ascertain it. The grant itself furnishes no other criterion for determining that boundary than the limitation of the quantity, as is expressed in the third condition. This is a controlling condition in the grant. The delivery of judicial possession, an essential ceremony to perfect the title in the land system of Mexico, was to be accommodated to it. The diseño presented by the donee to the Governor, to inform him of his wants, represents the quantity to be one league, a little more or less. This representation is assumed to be true by the Governor, and it forms the basis on which his consent to the petition is yielded. He prescribes to the officer to whom he confided the duty of completing the title, to measure a specified quantity, leaving the surplus that remains to the nation, as preparatory to the delivery of judicial possession to the