History of Alameda County, California : including its geology, topography, soil, and productions, Part 44

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206

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DECISION OF THE SECRETARY OF THE INTERIOR IN THE MATTER OF THE SUR- VEY OF THE RANCHO EL SOBRANTE, IN CALIFORNIA.

DEPARTMENT OF THE INTERIOR, WASHINGTON, February 23, 1882.

TO THE COMMISSIONER OF THE GENERAL LAND OFFICE-Sir: I have con- sidered, on appeal from the decision of your office of February 26, 1881, the matter of the survey of the California private land claim known as El Sobrante Rancho, situate in the counties of Contra Costa and Alameda, and confirmed to Juan José and Victor Castro by the Board of Land Commissioners and the United States Dis- trict Court for the Northern District of California, under the Act of Congress approved March 3, 1851 (9 Stats., 631).

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MEXICAN GRANTS.

Such facts appearing of record in your office, as are necessary to a proper under -* standing of the main questions presented for consideration, will be stated as briefly as practicable.

On the 26th of May, 1852, the said Juan José and Victor Castro, by their attor- neys, H. W. Carpentier and John Wilson, filed in the office of the said Board of Land Commissioners a petition in which they set forth, among other things, that on the 22d of April, 1841, they presented their joint petition to Juan B. Alvarado, then Governor of Upper California, "for a grant of all the vacant (sobrante) land lying between the Ranchos San Antonio, San Pablo, Pinole, Valencia, and Moraga, being the surplus or overplus left between the said ranchos after the boundaries to the Ranchos" should "be ascertained and settled;" that "on the 23d of April, 1841, the said Alvarado, so being Governor, and having full power and authority to do so, granted the land as prayed for in the said petition," and directed the petitioners "to

appear anew before the proper authority with a map of the land so asked

* * as soon as the boundaries of the Ranchos named in said petition * * * should be ascertained, regulated and settled;" that they had always been ready to comply with the direction of the Governor to present themselves anew to the proper author- ity, with a map of the land thus conceded to them, but that the boundaries of the ranchos named had not been ascertained and settled; that "the said Victor, several years before the date of the grant, had settled upon the land so granted them, had built and resided in a house, and cultivated fields thereon;" that both the petitioners "pastured their cattle, horses, etc., upon it," the land granted, "before the grant was made," and had continued to do so ever since; that the said Victor had "constantly since resided thereon," and had cultivated three different ranchos thereon, and had, for the last fourteen years (prior to presentation of the petition to the Board), "had and held (and which was known to the owners of the neighboring ranchos mentioned in the grant * *) exclusive and continued possession thereof;" and the peti- * tioners prayed that they might "be allowed to intervene in the cases arising out of the said ranchos when the boundaries thercof " were to be investigated, so that justice might be done them and they obtain "all the vacant (sobrante) land lying between the said ranchos after their boundaries are properly adjudged and regulated," and that their grant might be confirmed and made valid to them "according to the full intent . of the grant at the time the same was made." (Record of Petitions, vol. I, p. 460, et seq., Land Commission of California.)

On the same day, to wit, May 26, 1852, the Castros filed another petition, in which they represented, as before, that they had petitioned for a grant April 22, 1841, of "all the vacant (sobrante) land lying in between the Ranchos of San Antonio, San Pablo, Pinole, the ranch of Valencia, and the ranch of Moraga, being the overplus lying between these several ranchos, which lie in the county of Contra Costa;" that on the 23d of April, 1841, the Governor granted the same to them, "as they peti- tioned," and directed them to "present themselves anew before the proper authority, accompanied by a map of the land so granted, so soon as the boundaries of the ranchos named should be ascertained and settled; *

* * but that the boundaries of the said ranchos " had never been ascertained and settled. They therefore prayed the Board to ascertain and settle said boundaries, and then they would comply with

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

all their duty in the premises. They also stated that they would prove that they had been "in the actual possession of said sobrante, or vacant, land so granted them ever since the date of the said grant," and that they had "had on it a large stock of cattle, horses, sheep, etc."

They further alleged that the grant had not been approved by the Departmental Assembly, "because the boundaries of the adjoining ranchos had not been ascertained," and set forth other matters not necessary to be stated here.

They again prayed the Board to confirm their claim, etc. (Ib. pp. 634-5.)

Whether this petition was to amend the one first herein referred to, or vice versa, does not appear; but the two may be taken together as the petition of the Castros to the Board of Land Commissioners.

It may be well here to state that about the year 1853, after said petition to the Board was filed, and before the claim was confirmed, the county of Contra Costa, in which the petitioners alleged their land to be situated, was divided, and part of it included in the county of Alameda. There is, consequently, no variance between the general location called for in the petition as in Contra Costa County, and that in the Board's decree as in the counties of Contra Costa and Alameda.

In support of their claim the petitioners introduced in evidence the original peti- tition and concession, or grant, and a translation thereof, which translation was certified as correct by George Fisher, Secretary to the Board. This official translation of said petition and grant reads as follows :-

PETITION.

To HIS EXCELLENCY, THE GOVERNOR: The citizens, Juan José and Victor Castro, natives of this Department, and residents within the jurisdiction of San José de Alvarado, present ourselves before your Excellency in the most proper and respectful manner, and represent that, being desirous of being finally settled upon land of our own, for the purpose of devoting ourselves to the labors of agriculture and the raising of cattle, in order by these means to obtain the very necessary means of subsistence for our numerous increased families, which is of such vital importance, we beseech your Excellency that you will deign to grant unto us a piece of vacant land which is situate on the immediate limits (inmediaciones) of San Antonio, San Pablo, Pinole, the farm (ranch) of Valencia, and the farm of Moraga, which land is the over- plus (sobrante) of the ranches aforesaid.

Wherefore we humbly pray, etc.

JUAN JOSÉ CASTRO, VICTOR CASTRO.

MARGINAL CONCESSION OR GRANT.

MONTEREY, April 23, 1841.

As the parties interested petition for in this representation so the land of which they make mention is granted unto them, they remaining under obligation to present themselves anew, accompanied by a map of the land, so soon as the boundaries of the neighboring land-owners shall be regulated. ALVARADO.

(Record of evidence, vol. 19, p. 107, Land Commission, California.)

Testimony was introduced to prove the genuineness of the grant, its character, the settlement of Victor Castro thereon, the possession of the Castros as alleged in

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MEXICAN GRANTS.

the petition, and also some testimony concerning the boundaries of the Peraltas' grant of San Antonio, and the case was submitted for decision, whereupon, on the 3d day of July, 1855, the following opinion and decree were rendered by the Board of Land Commissioners :-

OPINION.

JUAN JOSE AND VICTOR CASTRO,

No. 96. For a sobrante, in the county of Contra

THE UNITED STATES. Costa.

The evidence in this case establishes the following facts: That the petitioners presented their expediente for a sobrante of land lying between ranchos named in said expediente, and in pursuance of said expediente, Juan B. Alvarado, Governor of California, on the 23d day of April, 1841, issued a grant to the petitioners, and requir- · ing them to report a plat of the same as soon as the adjoining ranchos could be surveyed and the extent of the sobrante ascertained, which survey has not been had of said ranchos so as to enable the petitioners herein to define with certainty the boundaries of their said sobrante, and a large amount of testimony has been taken for the pur- pose of settling the boundaries, which is rendered inapplicable to the merits of this claim by the decision of the Supreme Court of the United States in the case of Fremont.

The grant offered in evidence is proven to be genuine, and the proofs in the case go to show that it was issued to the grantees in consideration of services rendered to the nation, and for supplies furnished for the use of the Mexican Government.

We think this claim a valid one, and a decree will be entered confirming the same.

DECREE.

JUAN JOSE CASTRO AND VICTOR CASTRO, vS. No. 96.

THE UNITED STATES.

In this case, on hearing the proofs and allegations, it is adjudged by the Commis- sion that the claim of the said petitioners is valid, and it is therefore decreed that the same be and hereby is confirmed.

The land of which confirmation is hereby made is situated in the counties of Contra Costa and Alameda, and is the surplus (sobrante) which on the 23d day of April, A. D. 1841, the date of the decree of concession to the present claimants, existed, lying between the tracts known as Ranchos of San Antonio, San Pablo, Pinole, Moraga, and Valencia, reference being had to the original expediente on file in this case. (Record of Decisions, vol. 3, pp. 106 and 107, Land Commission, Cali- fornia.)

The case was taken to the proper United States District Court, as provided in section 9 of the Act of 1851, above referred to, and such proceedings were had before, and decree entered by the Court as made the decree entered by the Board the final decree in the matter.

The contest now here on appeal arose over a survey of the claim thus confirmed, which was executed by Deputy Surveyor William Minto, in 1878, under contract with the Surveyor-General of California, approved by your office. The field notes of the

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

survey were returned to the Surveyor-General's office August 26, 1878, and from them a plat was made, after which, in September and October, 1878, notice of the execution of the survey and plat was duly published under section I of the Act of July 1, 1864, (13 Stats., 332), and the survey and plat were retained in the office of the Surveyor- General for inspection, as required by law.

Many objections to the survey, protests against the surveying of the claim as demanded by the owners thereof, and interventions in the case were filed, some before and others after the period of ninety days from the first publication of notice had expired; and thereunder a vast amount of testimony was introduced before the Sur- veyor-General, which was forwarded with the appeal. It is unnecessary to pass upon the status of the various objectors, protestants, intervenors, or to specify those who appeared in time and showed such interest as entitled them to be heard, and to dismiss the proceedings of all others, under the rule laid down by the Department May 28, 1879, in the matter of the survey of the rancho El Corte de Madera del Presidio (Copp's L. O., vol. 6, p. 52), for the reason that the case is appealed by parties having a proper standing therein, who have raised every point, it seems to me, that the cir- cumstances of the case admit, or that arises in the case.

I need not further recite connectedly the history or facts of the case, enough hav- ing already been stated to develop the principal questions involved; but such other matters of record in your office as shall seem proper to be considered will be referred . to and discussed as occasion may require.

It is proper here to state my reasons for not using and discussing the testimony of witnesses taken before the Surveyor-General. I have not done so for the reason as to one branch of the case no such testimony is admissible, and as to the other, from my view of the case, none of it is needed. The explanation is this: The decree is said to be ambiguous. Now, if there is a patent ambiguity, it cannot be explained by testimony unless the terms used are wholly indefinite and equivocal, and convey on their face no certain or explicit meaning, and the decree itself furnishes no mate- rials by which the ambiguity thus arising can be removed. In such a case, rather than the claim which has been adjudicated upon the principles of equity (Sec. II, Act of 1851, 9 Stats., 633), should entirely fail, the light of intrinsic evidence may be brought in to ascertain the intention of the Board. But, in my opinion, the decree is not in such a condition. I think that any patent ambiguity in the expressed decree can be explained by reference to such matters, as under the rules of interpretation applicable to this case, may properly be examined for that purpose as a part of the decree. It follows, therefore, that any ambiguity appearing upon the face of the decree itself must be removed by construction and not by averment, and hence upon this branch of the case the testimony aforesaid is inadmissible.

The latent ambiguity of the decree can, in my opinion, be sufficiently explained by the records of your office or those of the Surveyor-General's office, and therefore the testimony of witnesses was not, and is not, needed in this case. In other words, that which was confirmed by the decree of the Board can be so surveyed as to do substantial justice from light afforded by the records of the Land Department, and no testimony dehors the records would make the matter more certain.

The decree of confirmation in this case is final and conclusive as between the

Gros

Duncan Cameron

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MEXICAN GRANTS.

United States and the Castros, or those claiming under them. If there were error or mistake in it, the only remedy was by appeal. The appeal from the decree of the Board having been dismissed by the District Court, the decree must forever stand as the Court thus made and left it. There is no authority or jurisdiction in any tribunal to correct, altar, amend, or annul it. Nothing remains to be done except to execute it according to its true intent as the law provides. If it is ambiguous and requires construction, then this must be done under the rules of the common law. The decree must serve as the guide to the Surveyor-General in making a survey in execution of the same. It is the duty of the Commissioner of the General Land Office to see to it that the survey conforms as nearly as practicable to the decree, and finally, the Secretary of the Interior, by virtue of his supervisory powers and appellate jurisdic- tion, has authority to review the action of the Commissioner in the premises and direct how the survey shall be made. Each of these several propositions of law will be found fully sustained by some one or more of the following authorities: Higueras vs. The United States (5 Wall., 827, 828, 830, 832, 834); United States vs. Halleck (I Wall., 439); United States vs. Billings (2 Wall., 444); the Fossatt case (ibid., 649); United States vs. Fossatt (21 How., 447); United States vs. Sepulveda (1 Wall., 107); 12 Opins. Attorneys-General, 250; Snyder vs. Sickels (8 Otto., 203); sections 13 and 15, Act of 1851, 9 Stats., 633, 634; sections 1, 6, 7, Act of 1864, 13 Stats., 333, 334; section I, Act of 1812, 2 Stats., 716; section 1, Act of 1836, 5 Stats., 107; section 3, Act of 1849, 9 Stats., 395; section 453 Revised Statutes; and decisions of this Department of March 3, 1881, in the matter of the survey of the pueblo lands of San Francisco, and of May 21, 1881, in the matter of the survey of the Rancho San Jacinto Nuevo y Potrero.

It has been contended in argument by some of the able counsel that the claim of the Castros was not such as, according to the decision of the Supreme Court in numer- ous cases, should have been confirmed; because the paper constituting the petition and concession was in the hands of the Castros until the organization of the Board of Land Commissioners, and until it was filed in the office of the Board; because there was no map accompanying the petition, no reference by the Governor of the petition for information, no report upon the petition by any Government officer, and the grant was not made matter of record in the archives of the Mexican Government; and hence, that the only title to consideration which the claim has is the decree of con- firmation. For these reasons it is contended that, as to the claim, the construction of the decree should be strictissimi juris. Others contend that the doctrine applicable to public or legislative grants should be applied in construing this decree; that it should be strictly construed as against the confirmees. On the other hand, counsel for claimants contend that the doctrine above mentioned does not apply to decrees especially not to a decree under the Act of 1851, founded upon the principles of equity, and that as to such a decree the doctrine of liberal or equitable construction should be applied.

As to the first point, it is only necessary to say that the tribunal created by law to execute the decree cannot go behind it. The presumption is that the Board and the United States District Court did their duty in the premises, and adjudicated the case upon the laws and principles by which they were required to be governed as

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

provided by section 11 of the said Act of 1851, and hence, that the decree is valid and binding upon all parties thereto. Therefore, if construction is necessary, the decree must be considered as entitled to the same respect and consideration as any other final decree of confirmation under said Act.

As to all the foregoing propositions it may be said that the decree must be executed according to its true intent and meaning, and that construction should not be employed to any other end.

Sedgwick, in his work upon Construction of Statutes, etc., after having examined many decisions of courts bearing upon the subject of strict and liberal construction, concludes a long chapter by giving the judiciary and the legal profession, in the form of rules, the benefit of his extended researches, from which I make the following quotations :-

"The intent of the Legislature should control absolutely the action of the judiciary; where the intention is clearly ascertained, the Courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment.

"The idea that an act may be strictly or liberally construed without regard to the legislative intent, according as it is viewed either as a penal or a remedial statute, either as in derogation of the common law or beneficial innovation, is, in its very nature, delusive and fallacious.

"In cases where the intent of the legislation is ambiguous, and the effort to arrive at it is hopeless, and in these cases only, does the power of construing a statute strictly or liberally exist." (Sedgwick on the Construction of Statutory and Consti- tutional Law, 325 and 326.)

The Supreme Court of the United States, in discussing the doctrine of strict con- struction as applicable to legislative grants, held that the grant being considered by them could not extend beyond the intent it expresssd; that-

"It should be neither enlarged by ingenious reasoning, nor diminished by strained construction. The interpretation must be reasonable, and such as will give effect to the intention of Congress. This is to be ascertained from the terms employed, the situation of the parties, and the nature of the grant. If these terms are plain and unambiguous, there can be no difficulty in interpreting them; but if they admit of different meanings-one of extension, and the other of limitation-they must be accepted in a sense favorable to the grantor." (Leavenworth, etc., R. R. Co. vs. U. S., 2 Otto, 740.)

The harmony between the doctrine expressed by the Court and that referred to above is at once apparent. Both agree that the intention must prevail, but when the terms employed are so ambiguous as to render it impossible to ascertain the intention of the framers of the act, then the doctrine of strict or liberal construction may be applied according to the nature of the case. The Supreme Court, in the particular case, held that when the terms admitted of different meanings, one of extension and the other of limitation, they must be accepted in the sense favorable to the grantor. The Court supposed a case wherein it was hopeless, from the ambiguity of the terms employed, to arrive at the intent of the Legislature, in which case it was authorized to employ the doctrine of strict construction as to the grantee, or to take that meaning

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MEXICAN GRANTS.

which was favorable to the grantor. A meaning of extension and another of limita- tion are certainly diametrically opposed to each other, in which case one could be taken to the exclusion of the other. But where no such condition of affairs exists- where the intent can be reasonably ascertained from the whole act or instrument being interpreted-then there is no choice left, and the intent must govern.

In this connection it may be well to advert to the fact that the decree refers to "the original expediente and grant on file in this case." That instrument, therefore, may be read with the decree as a part of it (Sedgwick on Construction, &c., 2d edit., 229 and 230; and Broom's Legal Maxims, 7th edit., 673 et seq., and the numerous cases cited therein); not, however, for the purpose of opening anew any question adjudicated by the Board and District Court, nor for giving to the instrument referred to any other construction or force than that given by the Board and Court, as expressed in their decree; hence, not for the purpose of changing the meaning of terms that are clear and unambiguous in the expressed decree, but only to explain any ambiguity in the decree itself. (U. S. vs. Halleck, 1 Wall., 455; decision of this Department of May 21, 1881, in matter of survey of Rancho San Jacinto Nuevo y Potrero.) Wherein the decree, on its face, is clear so far as it relates to the subject matter or the original petition and grant, it must be held to be the construction of the Board and Court upon those instruments, which cannot be questioned here. Further- more, in referring to the petition and grant in this decree, we can only look to the official translation thereof; we cannot take any other translation, and by it undertake to explain any dubious expression of the decree. The Board had the services of a Secretary "skilled in the Spanish and English languages," a part of whose duty it was , to act as interpreter to the Board, as the law provided. (Sec. I, Act of 1851, 9 Stats., 631.) The Secretary certified the translation of the petition and grant above given to be correct. The Board and District Court gave consideration to the petition and grant, and adjudicated the case in view of that official translation. It follows, upon reasons too apparent to require explanation, that the expert testimony of witnesses before the Surveyor-General, giving a different translation to some of the words in the original petition and concession than that certified by Secretary Fisher, is wholly inadmissible, and that all efforts to inject into the case now any other translation than that which the Board and Court adopted, must fail.

The points raised by the objectors, protestants, etc., are very numerous, and need not be recited here. They are all, in some way, embraced in the three following general questions or propositions:

First. It is contended by the owners of the grant that the decree confirmed to them all the land within the exterior boundaries of the five ranchos named as colin- dantes, which should be left or result as surplus upon the final survey of said ranchos; that their grant is not limited, except as by the exterior boundaries of said ranchos and their finally surveyed limits, and therefore that the locative call in the decree for land "lying between the tracts known as Ranchos of San Antonio, San Pablo, Pinole, Moraga, and Valencia" should be disregarded in making a survey under the decree.

Second. Some of the contestants insist that the claim confirmed was a piece of vacant land, never within the exterior boundaries of the five ranchos referred to, nor any of them, but outside thereof and bounded by them.

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Third. Other contestants admit that the land confirmed was surplus of said five ranchos, or some of them, but insist that it must, from the terms of the decree, lie between those ranchos as finally surveyed, in the sense of being surrounded or partly surrounded and bounded by them.

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 44

Author: Munro-Fraser, J. P Publication date: 1883 Publisher: Oakland, Calif. : M.W. Wood Number of Pages: 1206

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206