portant questions continually arising in the adjudication of surveys of private land-claims in California; and, with a view of obtaining more reliable evidence in such cases, you are hereby directed in all future cases of objection to the survey of a private land-claim, duly published according to law, to notify the parties in interest that the testimony of no witness hereafter examined, and whose statements are tendered to prove or disprove any of the matters in controversy, will be received unless said testimony shall have been taken under oath, before you or the clerk of some court of record, after notice to adverse parties of the time and place of taking such testimony and an opportunity given for cross-examination. It is desired, when practicable, that evidence of this character should be taken before you; but, to avoid inconvenience to parties living at a distance from San Francisco, it is thought proper to permit them to go before some one of the officers above named. In all cases, however, in which such evidence is not taken by you, the officers before whom it may be taken must transmit it under seal direct to your office.

In submitting to this Office documents filed as evidence in cases of objection to a survey as aforesaid, you will exercise due care that no such document be considered by you as evidence, or transmitted to this Office as such, until all the parties in interest have had an opportunity to inspect the same.

WILLIS DRUMMOND, Commissioner. J. R. HARDENBERGH, United States Surveyor-General, San Francisco, Cal.

Where the final decree designated the specific boundaries of a confirmed claim, those boundaries must be followed; but if the decree only confirmed a certain quantity of land within exterior boundaries, the quantity is to be located in a compact form, or if the character of the ground renders it impracticable to locate it in one tract, then each separate location must be in a compact form.

The amount of land awarded by the final decree is to be surveyed so as to give the claimant what was intended by the original grant, in such a form as to render it convenient and easy of access, and if possible equal in value to the portion excluded.

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY GENERAL, Washington, July 25, 1871. SIR: I have considered the case of survey of Rancho Sespe, confirmed to Thomas M. Moore by decree of the U. S. District Court for the State of California. The land in controversy, known as the Rancho Sespe, is claimed under a Mexican grant made in the year 1833, by José Figueroa, Brigadier General in the national armies of Mexico, Commandant General, Inspector and Superior Political Chief of Alta-California, to Carlos Antonio Carillo.

Carillo's grant was duly confirmed by the Departmental Assembly, and juridical possession given him. On the 17th of February, 1852, the land having passed, by the treaty of Guadaloupe Hidalgo, under the

jurisdiction of the United States, Carillo petitioned the Board of Commissioners created by the act of March 3d, 1851, (9 Stat., 631,) for a confirmation of his grant, and on the 18th day of April, 1853, it was confirmed to the extent of six square leagues. Shortly after his petition to the Board was filed Carillo died, and his administrator after the confirmation above referred to sold the tract to Thomas M. Moore, the present claimant, receiving in consideration therefor the sum of $18,500 in coin.

An appeal from the decision of the Commissioner to the U. S. District Court resulted in a confirmation of the grant to the extent of two square leagues, an admission of Moore being filed that this was the amount included in the original Mexican grant. An appeal taken to the Supreme Court was dismissed on motion of the Attorney General of the United States.

A survey was made in January, 1868, under the direction of the Surveyor General of California, as required by law; it was duly approved by him June 17th, 1868, and the publication required by the act of 1864, (13 Stat., 332,) was regularly made. This survey included 25,360 acres of land, nearly six square leagues. The land is situated between two abrupt ranges of mountains along the valley and on each side of the Santa Clara river. The river bank on each side is composed to a considerable extent of sandy plain or "avenal," perfectly worthless for purposes of pasture or agriculture. The arable and pasture land forms on each side of the river a comparatively narrow strip between the mountains on one side and avenal on the other.

By the act of 1864 (1st Section) surveys of private claims in cases of the kind under consideration are made subject to the "examination and approval" of the Commissioner of the General Land-Office. The survey of the land in controversy was forwarded to the Commissioner, who, upon examination, rejected the same, and awarded to the claimant the "right of selection to the extent of the quantity confirmed within the exterior boundaries of the grant," with the restriction that such selections should be made, as nearly as possible, in a compact form, allowing him, however, to exclude the avenal or sandy plain lying along the bed of the Santa Clara river.

James F. Stuart, attorney for settlers, has appealed to the Secretary, and in substance alleges as errors the following points in the decision of the Commissioner:

1st. That the claimant was allowed to select his claim within the exterior boundaries of the original grant.

2d. That he was allowed to exclude the sandy plain or avenal land along the valley of the Santa Clara river.

1st. The seventh section of the act of 1864, (13 Stat., p. 334,) reads as follows: "That it shall be the duty of the Surveyor General of California, in making surveys of the private land claims finally confirmed, to follow the decree of confirmation as closely as practicable, whenever such decree designates the specific boundaries of the claim. But when such decree designates only the out-boundaries within which the quantity confirmed is to be taken, the location of such quantity shall be made as near as practicable in one tract and in a compact form. And if the character of the land or intervening grants be such as to render the location impracticable in one tract, then each separate location shall be made as near as possible in a compact form. And it shall be the duty of the Commissioner of the General Land-Office to re

quire a substantial compliance with the direction of this section before. approving any survey and plat forwarded to him."

The duty of the Surveyor General under this section is plain. Where the final decree has designated the specific boundaries of the confirmed claim, he is to follow those boundaries, and make his survey conform to them. If the decree only confirms a certain quantity of land within exterior boundaries, he is to locate the quantity confirmed as nearly as possible in a compact form within those boundaries. And if it is impracticable, having reference to the character of the land, to so locate the claim in one tract, then "each separate location shall be made as near as possible in compact form." It is further made the duty of the Commissioner to require a substantial compliance with the requirements of this section before approving the survey. Under the direction of the Commissioner, and his power of supervision, the Surveyor General is to exercise a sound discretion in so locating the claim as to deal justly with the (Mexican) grantee, and still protect the rights of the govern

ment.

Natural obstacles to the location of the claim in one tract, or circumstances which would make such location a departure from the intent of the grantor, are sufficient reasons for the location of the claim in separate tracts, each in compact form. The amount of land awarded by the final decree is to be surveyed to the claimant, so as to give him as nearly as possible what was intended by the original grant, in such a form as to render it convenient and easy of access, and if possible equal in value to the portion excluded, giving it, however, where possible, compactness in form. This it seems to me is a reasonable construction of the act, and one that does but simple justice to the bona fide claimant.

The practice of allowing claimants in cases similar to this to select in compact form within the exterior boundaries the amount of land awarded by final decree is well established, and almost universally allowed by the Land Office. It has also been recognized by the Supreme Court of the United States. Mr. Justice Field, in U. S. v. Armijo, (5 Wallace, 449,), uses the following language: "Under our system. the right of the grantee to direct a selection of the quantity granted is admitted, subject only to the restriction that the selection be made in one body and in compact form." And again: "The objection that the survey does not locate the land in a compact form cannot be sustained. Compactness of form must depend in many instances upon a variety of circumstances, such as the character of the country, its division into different parcels by mountains, rivers, and lakes, and sometimes by the relation of the tract to neighboring grants." This right of the claimant to select the confirmed grant within exterior boundaries, as has been shown, is well established by the practice of the Land-Office, and is sanctioned by the courts, and therefore not now to be denied.

2d. A comparison of the original petition, grant and deseño, shows an intention on the part of all parties concerned to exclude the sandy plain or avenal. The petition recites the fact that along the river is "a very large bed of sand (avenal) which produces no pasture whatever, and consequently is of no use." The grant was made in compliance with the petition, and it may be reasonably inferred in the absence of words expressing the contrary that it was intended to cover only such land as was prayed for, and not that which was expressly represented to be worthless. The deseño shows the pasture land separated from avenal, and it was evidently intended to distinguish one from the other.

It seems to have been the intention of Carillo to ask for, and the Mexican authorities to grant, the pasture land on each side of the river, within the boundaries named, to the extent of two square leagues, and to exclude the avenal along the banks of the river.

It is shown that Moore paid a valuable consideration for the land, after the right of his vendor to it had been affirmed by the Board of Commissioners to the extent of six square leagues; that he has made valuable improvements on both sides of the river, and that he cannot now select the two square leagues finally awarded to him so as to include such improvements, without taking on both sides of the river. To compel him to include in his selection the river and the avenal banks, would, in my opinion, be unjust, and would defeat the intention of the original grantor.

I advise an affirmance of the order made by the Commissioner.
Very respectfully,

W. H. SMITH, Assistant Attorney General. HON. C. DELANO, Secretary of Interior.

Concurred in by the Acting Secretary, July 31, 1871.

No. 478.

WM. MCGARRAHAN.

Held-That the law presumed that a patent had been duly issued, when such a patent was found duly recorded in the record of patents. Dondige, 12. Wheat., 69.

That such presumption might be overcome by proof. Lea v. Polk County Copper Co., 21 How., 494.

That the Secretary of the Interior had power to make the record conform to the facts, although the transaction took place prior to his induction into office.

That a former Secretary having jurisdiction, and having acted upon the matter, his decision should not be reversed by his successor. 2 Op. Atty. Genl., 9, 464. 4 Do., 341. 5 Do., 29, 123. 9 Do., 101, 301, 387. 12 Do., 358. Hoar, April 26, 1869, and Akerman, March 7, 1871. U. S. v. Bank of Metropolis, 15 Pet., 401.

Decision by Acting Secretary Cowen, Aug. 4, 1871.

No. 479.

RANCHO CORTE DE MADERA DEL PRESIDIO.

The decree of the court confirming the title of this claim, being one of a U. S. court sitting in a State where the common law prevails, must be construed by the ordinary rules of the common law applicable to it.

2. Where a written instrument is capable of two constructions, one consistent with and the other contrary to law, that consistent with the law must be given it.

3. When lines are laid down on a plat and are referred to accordingly in a written instrument, they are to be regarded as giving a true description of the parcel, as much so as if expressly recited in the instrument itself.

4. Juridical possession of a Mexican grant in California, is a segregation of the grant from the public lands, and is equivalent to a judicial determination of the boundaries of the grant.

5. The rule of law that natural objects when identified govern courses and distances applies to Spanish grants in California.

6. A written instrument must be so construed as to give effect to all its parts, and the whole instrument may be considered to determine the meaning of a particular clause or phase; and if parts are inconsistent they must be reconciled so as to serve the general intent.

7. When language used is capable of two constructions, one consistent with and the other opposed to the general intent, the law presumes the former to be the true one.

8. The final decree of the United States District Court confirming a private land claim in California, is conclusive both as to title and extent.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., January 6, 1872. SIR-I return herewith the papers transmitted with your letter of 30th September last, in the matter of the survey of the California private land-claim known as "Corte de Madera del Presidio," heirs of John Read, confirmees.

It appears from the papers that on the 2d of October, 1834, the then governor of California granted to Read land of the extent of one square league, a little more or less, as shown by the map attached to the expediente.

On the 28th November, 1835, juridical possession of the land described in the grant was given to Read, according to the boundaries as shown in said map.

The board of land commissioners confirmed the claim as containing one square league of land, be the same more or less, reference being had to the record of juridical possession.

The United States district court affirmed the decision of the board "in all things."

If the decree of the court ended here there could no question arise as to the extent of the rancho claimed; the grant, juridical possession, action of the board, and decree of the court all concurring as to the boundaries indicated by the map of the expediente.

But the decree adds that the claim is "confirmed to the extent and quantity of one square league."

You consider this limitation of quantity as conclusive upon your office, and accordingly approve Mathewson's survey for that quantity. After careful examination of the papers and consideration of the arguments of counsel, I am constrained to differ with you on this point. There is an ambiguity in the decree, rendering it possible to give it two different constructions. One of these constructions would confirm what had before been done, give effect to the juridical possession, and be consistent with law. The other would disregard the antecedent history of the case, give no effect to the juridical possession, and arbitrarily limit the extent of the grant. In such a case, I am clearly of the opinion that the construction should be adopted which gives full force and effect to the action of the Mexican authorities, as sanctioned by the board of land commissioners.

Mathewson's survey is, therefore, disapproved; and you will direct another to be made conforming to the juridical possession.

The Assistant Attorney General in his opinion (copy herewith) discusses at length the questions of law and fact involved in the case, and I fully concur in the conclusion at which he arrives.

I am, sir, very respectfully, your obedient servant,
C. DELANO, Secretary

HON. WILLIS DRUMMOND, Commissioner General Land-Office.