USA > California > Contra Costa County > History of Contra Costa County, California, including its geography, geology, topography, climatography and description; together with a record of the Mexican grants also, incidents of pioneer life; and biographical sketches of early and prominent settlers and representative men > Part 35
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.Mytterback
Charles Cleard
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Mexican Grants.
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 authority, with a map of the land thus con- ceded 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 re- sided 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 Vic- tor had "constantly since resided thereon," and had cultivated three differ- ent Ranchos thereon, and had, forthe last fourteen years (prior to presenta- tion 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 petitioners prayed that they might " be allowed to intervene in the eases arising out of the said Ranchos when the boundaries thereof " 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. 1, p. 460, et seq., Land Commission of California.)
On the same day, to wit, May 26, 1852, the Castros filed another peti- tion, 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 petitioned," and directed them to "present themselves anew before the proper authority, accom- panied 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 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 De- partmental Assembly, " because the boundaries of the adjoining Ranchos had not been ascertained," and set forth other matters not necessary to be stated here.
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They again prayed the Board to confirm their claim, etc. (Ib., p. 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 peti- tion of the Castros to the Board of Land Commissioners.
It may be well here to state that about the year 1853, after said peti- . tion 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 petition 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 (rancho) of Valencia, and the farm of Moraga, which land is the overplus (sobrante) of the ranches aforesaid.
Wherefore we humbly pray, etc.
JUAN JOSE 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 the petition, and also some testimony concerning the
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Mexican Grants.
boundaries of the Peraltas' grant of San Antonio, and the case was submit- ted for decision, whereupon, on the 3d day of July, 1855, the following opinion and decree were rendered by the Board of Land Commissioners :
OPINION.
No. 96 Juan José and Victor Castro,
The United States. VS. For a sobrante, in the county of Contra 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 requiring 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 purpose 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 José Castro and Victor Castro, -
V.S.
No. 96.
The United States.
In this case, on hearing the proofs and allegations, it is adjudged by the commission 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 coun- ties 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, California.)
The case was taken to the proper United States District Court, as pro- vided in section 9 of the Act of 1851, above referred to, and such proceedings
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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 survey were returned to the Surveyor- General's office August 26, 1878, and from theni a plat was made, after which, in September and October, 1878, notice of the execution of the sur- vey and plat was duly published under Section 1 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 Surveyor-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 circumstances of the case admit, or that arises in the case.
I need not further recite connectedly the history or facts of the case, enough having already been stated to develop the principal questions in- volved; 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 certaiu or explicit meaning, and the decree itself furnishes no materials 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. 11, 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
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Mexican Grants.
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 inad- missible.
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 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, alter, amend, or an_ nul 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 construc- tion, then this must be done under the rules of the common law. The de- cree 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 Gen- eral Land Office to see to it that the survey conforms as nearly as practi- cable to the decree, and finally, the Secretary of the Interior, by virtue of his supervisory powers and appellate jurisdiction, 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 (1 Wall., 439) ; United States vs. Billings (2 Wall., 444) ; the Fos- satt case (ibid., 649); United States vs. Fossatt (21 How., 447); United States vs. Sepulveda (1 Wall., 107); 12 Opins. Attorneys-General, 250; Sny- der 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 1, 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
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History of Contra Costa County.
Supreme Court in numerous cases, should have been confirmed; because the paper constituting the petition and concession was in the hands of the Cas- tros 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 accom- panying the petition, no reference by the Governor of the petition for in- formation, no report upon the petition by any government officer, and the grant was not made matter of record in the archives of the Mexican Gov- ernment ; and hence, that the only title to consideration which the claim has is the decree of confirmation. 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 con- strued as against the confirmees. On the other hand, counsel for claimants contend that the doctrine above mentioned does not apply to decrees, espe- cially 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 premi- ses, and adjudicated the case upon the laws and principles by which they were required to be governed as 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 con- sidered 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 re- searches, 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 re- gard to the legislative intent, according as it is viewed either as a penal or remedial statute, either as in derogation of the common law or beneficial innovation, is, in its very nature, delusive and fallacious.
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" 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 con- struing a statute strictly or liberally exist." (Sedgwick on the Construction of Statutory and Constitutional Law, 325 and 326.)
The Supreme Court of the United States, in discussing the doctrine of strict construction as applicable to legislative grants, held that the grant being considered by them could not extend beyond the intent it expressed ; 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 diffi- culty 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 re- ferred 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 construc- tion as to the grantee, or to take that meaning which was favorable to the grantor. A meaning of extension and another of limitation 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 in- strument 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 (Sedg- wick 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 con- struction or force than that given by the Board and Court, as expressed in
21
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History of Contra Costa County.
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 instru- ments, which cannot be questioned here. Furthermore, 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. 1, Act of 1851, 9 Stats., 631). The Secretary certified the translation of the petition and grant above given to be correct. The Board and the Dis- trict 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 con- firmed to them all the land within the exterior boundaries of the five Ranchos named as colindantes, 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 sur- veyed 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.
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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Mexican Grants.
The better to understand the situation, a short explanation of the loca- tion of the five Ranchos mentioned is necessary.
The San Antonio Rancho has the Bay of San Francisco for its western boundary, the ridge of the Coast Range mainly for its eastern boundary, and extends from a small stream called the Cerrito creek, on the north, to the San Leandro creek, on the south, a distance of about twelve miles. This was a grant by specific boundaries, and was surveyed and patented as such.
To the north and northeast of San Antonio, at a distance of about five miles, is the Rancho El Pinole. This, as confirmed, surveyed and patented, was a grant of quantity within larger exterior boundaries. The calls for the exterior boundaries of this grant were natural fixed objects, leaving no uncertainty as to the lines thereof.
San Pablo was a grant of quantity to be located within the boundaries mentioned in the grant, which were the Ranchos of San Antonio, El Pinole, and the Bay of San Francisco; the southeastern boundary being thus neces- sarily uncertain.
To the east of San Antonio, southeast of San Pablo, and south of El Pinole, was the Rancho of Valencia, called Acalanes. It was a grant of quantity, to be measured within the general boundaries mentioned in the grant as San Pablo, San Antonio, and El Pinole.
South of the Acalanes and east of San Antonio was the Moraga Rancho, called Laguna de los Palos Colorados. It was a grant of quantity, to be measured within the exterior boundaries described in the Governor's formal grant, which virtually, though not expressly, called for San Antonio and Acalanes as colindantes.
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