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 36
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The foregoing brief explanation, and the connected map prepared by the Surveyor-General in compliance with telegraphic order from your predeces- sor of October 24, 1878, from data on file in his office, which map was cer- tified by the Surveyor-General November 22, 1878, or the map subsequently substituted therefor by the Surveyor-General, will give a tolerably correct idea of the country occupied by said Ranchos, and their relative situation both as regards their exterior and their finally surveyed boundaries ; but as to a part of the exterior boundaries there is some question as to their being accurately delineated on said maps, which will be discussed hereafter.
It will be seen that a large tract of land is left nearly surrounded and bounded by said Ranchos as finally surveyed and patented, in addition to which there were numerous other smaller tracts excluded by final surveys, not surrounded by nor lying between said Ranchos, but within the exterior limits of some of them, most of said tracts being entirely disconnected with the large tract and with each other, and scattered about in various parts, mainly on the outskirts of the general tract embraced by the exterior boundaries of the five Ranchos mentioned in the decree.
Your predecessor, having decided that the decree confirmed to the
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Castros all the surplus land of the Ranchos aforesaid-that is, all the land within their exterior boundaries excluded by final survey-and that the said Ranchos were coterminous as to their exterior boundaries in the central portion in the general tract embraced by them all, set aside the Minto sur- vey, and directed a new survey to be made, which should include not only the large tract nearly surrounded by the Ranchos as finally surveyed, but all the other tracts excluded from the final surveys, limiting his award only by the quantity of twenty-two square leagues.
In this, it seems to me, your office did not follow the decree of confirma- tion, assuming that the tract confirmed was surplus of some of the said Ranchos resulting upon final survey thereof.
The crror in the decision proceeds from premises, which, to my mind, are not supported by the relevant facts and the law of the case, to wit, first, that the word " sobrante," as used in the grant and decree of confirma- tion necessarily meant all of the sobrante of said Ranchos, and could not be limited by the words designating the particular location of the sobrante, nor by the words designating it as a piece-one piece-of land; and, secondly, that it was a grant by name of the sobrante, and hence included all of the sobrante.
It cannot be maintained upon general principles that power was wanting in the Governor to grant, or in the Board and Court to confirm, as sobrante any portion of the surplus of grants of quantity, and define its location and boundaries. As a matter of fact the records of your office will show that more than one such grant has been made of the sobrante of a single grant, and the grants thus made have been confirmed and patented accordingly. Now, that the tract confirmed in this case, admitting it to be sobrante of some of the Ranchos mentioned in the decree, was limited, seems clear to me, and that the surveyor has no authority to locate or survey any land in any other locality than that mentioned in the decree cannot be success- fully questioned. In view of the authorities hereinbefore mentioned no one will deny that the decree of confirmation must be the guide in making the survey, or that the surveyor must follow it. In the United States vs. Fossatt (21 How. 449), the Supreme Court, in speaking of the powers and duties of the Board and Courts under the Act of 1821, said :
"But, in addition to these questions upon the validity of the title, there may arise questions of extent, quantity, location, boundary, and legal opera- tion, that are equally essential in determining the validity of a claim."
This doctrine was re-affirmed in the Fossatt case (2 Wall., 707). In United States vs. Sepulveda (1 Wall., 107 and 108) the Court said :
"It is true, for the determination of the validity of claims presented, some consideration must have been had of their extent, location, and bound- aries. The petition of the claimants must necessarily have designated, with more or less precision, such extent and location."
yours Truly Jos & Jours
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Mexican Grants.
In the light of these decisions no one can consistently say that the Sur- veyor-General, your office, or this Department can disregard the words of the decree that point out the locus of the land confirmed, in making or directing a survey thereof. The decree recites that the land of which con- firmation is thereby made " is the surplus (sobrante) which, on the 23d day of April, A. D. 1841. * * existed lying between the tracts known as Ranchos of San Antonio, San Pablo, Pinole, Moraga, and Valencia."
Is it possible that any land that does not lie between those Ranchos can be surveyed under this decree ? By what authority can the Surveyor-Gen- eral look for land under this decree, except in that locality ?
But the Commissioner suggests that the words "lying between," etc., constitute a false description of the land, and that it grew out of the mistaken meaning of the words " en las inmediaciones," in the petition for the grant, which he says were carelessly taken to be translatable by the word " between ;" and he further says that the Board did well to refer for greater certainty to the original grant.
The answer to this has already been anticipated. The Board having thus translated and interpreted the grant, there is no tribunal that has the power to change it. Certainly it does not lie with the claimants to object to the translation, for the record shows it to be their own, notwithstanding it was adopted as the official translation. The regulations of the Commis- sioners, found in journal, vol. 1, p. 24, required every claimant to accompany his petition " by a copy of the original grant and a translation," and the petition of the Castros shows that this regulation was complied with, and the records do not show that said copy and translation were rejected or objected to. Unless the Board was to adopt the translation, if found correct, there was no object in requiring it to be filed.
But the idea that there is repugnance in the language of the grant and that of the decree on this point is not well founded. Referring to the offi- cial translation of the petition and grant, it will be found that the Castros petitioned for " a piece of vacant land which is situated on " (not "in " as the Commissioner has it) " the immediate limits (inmediaciones) of San Antonio," etc., "which land is the overplus (sobrante) of the ranchos aforesaid."
Here we find that this tract must be "on the immediate limits of" the said Ranchos. Now, from the very meaning of these words, taking the actual situations of the grants named, the land must lie between them all in the sense of being surrounded, or partly surrounded, and bounded by them. The word "immediate," as here used, means "not separated in respect to place by anything intervening." (See any standard dictionary.) It was one tract that was granted and the same tract was confirmed ; and it was not a tract of land, vacant or otherwise, that surrounded all these Ranchos and bounded their outer limits. The bays of San Francisco and San Pablo and the strait of Carquinez put an end to such an idea, even if
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the absurdity of the proposition in itself does not. Where else, then, than in the midst of these Ranchos can a tract of land be found that can lie on the immediate limits of each and all of the Ranchos named in actual contact with all of them. There is not the slightest repugnancy between the description in the grant and that of the decree, so far as the words "lying between " are concerned.
But it is urged the word " between" can refer to but two objects, and hence was not the proper expression to use to convey the idea above expressed. Perhaps in a literal, narrow sense this may be true ; but a definition is given it in dictionaries like this, "in the immediate space of ;" "having mutual relation to two or more of ;" in fact, the word is quite commonly used with respect to more than two persons or things, as " between us, to go no further, I will tell you something," the pronoun "us " embracing, perhaps, twenty individuals. But, " qui hærret in litera hæret in cortice." Such verbal criticisms as are indulged in upon the words " lying between," as used in the decree, are of little value in the interpretation of written instruments. The well-known general and comprehensive rule for the interpretation of writ- ten instruments is that where the intention is clear, too great a stress should not be laid on the strict and precise signification of words. One who will consider for a moment what other word can be found to describe the locality of a tract of land surrounded, or nearly so, by a number of Ranchos, will soon discover that no form of expression in the English language is better adapted briefly but clearly to define its location than that it lies between them. But if their could be any doubt as to what the Board meant by the. use of the words "lying between," in the connection in which they were employed, it would be at once resolved by reference to the petition and grant, as has already been demonstrated.
Suppose, however, that the petition and grant did not make clear the terms in the written decree, and that the Department were required to look beyond them, then I should turn to the Board's finding of facts in the opin- ion preceding the decree. The Board there says that the evidence establishes the fact that the petitioners presented their expediente for a "sobrante " of land "lying between Ranchos named in said expediente." If this were not satisfactory, then I should read the petitions of the Castros to the Board. In the first one they describe the land as "lying between " the said Ranchos, and, as if to leave no room for doubt as to what they really meant, in their other petition to the Board they describe it as "lying in between " said Ranchos. No one knew better than the Castros where the land was for which they petitioned. Now, with this expression, so oft-repeated, it seems to me that no other locality than the intervening space inclosed (or partially inclosed) by all these Ranchos, could be sought for the location of the piece of land confirmed, even if the original grant did not so effectually settle the question.
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Mexican Grants.
But there is no confusion in the decree about this matter. The meaning of the Board and Court as to the locality of the land is plain, especially when the papers referred to in the decree are read.
It is hardly necessary to say more on this point. The mere mention of the rule, which is applicable to this decree as well as to other written in- struments, that the whole instrument must be construed together, so that, if possible, every part shall stand, that no words are to be rejected as mean- ingless and none interpolated or added, would perhaps have been sufficient to answer all that has been said in favor of the rights of the owners of EI Sobrante to have other land surveyed than that found to lie between the five Ranchos in the sense in which the Board clearly employed the word " between," that is, within the surroundings of the five Ranchos ; not between any two, or three, or four of them, but between all of them.
Whatever the land may be, whether an independent, vacant tract (vacant in the sense of never having been included within the exterior limits of any of the Ranchos named) or vacant surplus land (sobrante, in the sense of having been included in some of the exterior boundaries named in the grants, and vacant in the sense of being subject to grant), it must be found in the locality designated in the decree as above defined.
I am supported in this view by the Supreme Court of California. In the case of Tewksbury vs. Derosier, decided November 11, 1881, (The Pacific Coast Law Journal, vol. 8, No. 17, p. 683,) the Court, speaking of this very decree, said :-
"The confirmation of El Sobrante was of lands 'lying between the tracts known as Ranchos of San Antonio, San Pablo, Pinole, Moraga, and Valencia.' The lands in controversy are not between the Ranchos above named, or any of them. On the contrary, they are on the shore of the Bay of San Francisco, and between it and the Rancho San Pablo. They are not even in the vicinity of any of said Ranchos, unless it be the Ranchos San Pablo and San Antonio."
The land in question before the Court, and of which the Court was speaking, is one of the tracts which your office directed to be included in the new survey.
After so much has been said, it is hardly necessary to discuss the propo- sition that this is a grant by name. Surplus is undoubtedly a name, be- cause it is a noun, but it was not a proper noun as used by the Castros in their petition. There is nothing in the case to show that it was ever the name of this Rancho at or before the date of this grant. Sobrante means in English surplus or overplus. The three words mean the same. There is probably no foreign word that can be translated into our English with more exactness of definition than the Spanish word "sobrante" by the English word "surplus." If the Board in its decree had put in parenthesis the word " overplus," instead of " sobrante," after the word " surplus," the
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decree would have meant exactly what it does now, each word being the exact equivalent of the other. The use of the word " sobrante" in paren- thesis simply shows that the Board translated it by the word "surplus." The Castros asked for vacant, surplus land.
Whether surplus of vacant public land left in the general tract occupied by the five Ranchos outside of and defined by their exterior boundaries, or of that which should remain within the exterior boundaries, after the quan- tities of said grants should be surveyed, will be determined next in order. They did not ask for a place known by the name of Surplus, or Lo So- brante, or El Sobrante ; but for a piece of vacant, surplus land. That is all the name the Rancho had. That does not fill the well-known definition of a Mexican grant, by name of the place granted, nor the old common law case or illustration of " Black Acre."
The second proposition above set forth presents more difficult questions than the one just disposed of.
The expressed, recorded decree describes the land confirmed as the surplus " which, on the 23d day of April, 1841, the date of the decree of the concession to the present claimants, existed, lying between the tracts known as Ranchos of San Antonio, San Pablo, Pinole, Moraga and Valencia."
The Supreme Court of the United States has, in several instances, de- scribed the different kinds of grants which could be made under Mexican law and regulations by governors of the Department of California, thus :- 1st, grants by specific boundaries where the donee was entitled to the entire tract described ; 2d, grants by quantity, as of one or more leagues situated at some designated place, or within a larger tract described by out-bounda- ries, where the donee was entitled out of the general tract only to the quantity specified ; and, 3d, grants, or places by name, where the donee was entitled to the tract named according to the limits, as shown by its settle- ment and possession, or other competent evidence. (Higueras vs. U. S., 5 Wall., 828; Alviso vs. U. S., 8 Id., 339 ; and Hornsby vs. U. S., 10 Id., 224.)
The claim of the Castros, having been decreed to be valid, should belong to one of the kinds of grants thus defined. It is clear upon the face of the decree that it was not a grant of quantity nor one of place by name. It therefore necessarily falls into the category of grants by boundaries; and as no calls are given for boundaries, except the five Ranchos named, it must be limited by their boundaries and lie between them all. If this be not so, then, although confirmed as valid, the claim is void for uncertainty.
In United States vs. Fossatt (21 How., 449), the Supreme Court said that " in affirming a claim to land under a Spanish or Mexican grant to be valid within the law of nations, the stipulations of the treaty of Guadalupe Hidalgo, and the usages of those governments, we imply something more than that certain papers are genuine, legal and translative of property. We affirm that ownership and possession of land of definite boundaries right-
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fully attach to the grantee." See also Fossatt's case (2 Wall., 707), and United States vs. Sepulveda (1 Wall., 107 and 108). In United States vs. Grimes (2 Black, 613), the Court, speaking of the duty of the Land Com- missioners under the Act of 1851, said : " It is their duty to establish the boundaries as well as the validity of the Mexican grant as between him (the grantee) and the Government." The Board and Court, then, had power to fix the boundaries as they did.
Now, the presumption in favor of the validity of the decree, and that the Board and Court performed their duties under the law, forces the con- clusion that the decree in some manner indicates the boundaries of the claim with more or less certainty, which in executing it must be ascertained with reasonable exactitude; for not to ascertain them would render that void which the Board and Court have affirmed to be valid ; hence the decree must be construed, if possible, so as not to make void that which has thus been affirmed as valid, whether the construction be as to patent or latent ambiguity. In doing this, so far as ascertaining the boundaries is con- cerned, that which is certain should be preferred to that which is uncertain.
Now, as regards these boundaries, the expressed decree seems to be am- biguous, but the ambiguity is mainly latent, and, wherein it is so, it may be explained by matters dehors the decree or the documents referred to therein.
While there may be no uncertainty as to the ordinary meaning of the word " surplus " or "sobrante," yet, when applied to land, it seems to me that it may embrace lands differing in condition or status, although it is strongly maintained that it cannot. The ordinary definition of "surplus" is that which remains when use is satisfied ; excess beyond what is pre- scribed or wanted-overplus. Now, was the land confirmed surplus of vacant public land which was left of the general tract out of which the said five Ranchos were to be satisfied, and which was never within the ex- terior boundaries mentioned in the Governor's grants of the said surround- ing Ranchos, and bounded by their exterior boundaries ; or was it surplus of those Ranchos, or of any of them-that which should remain of the larger tracts when the quantity to which the donees were severally entitled should be satisfied-bounded by said Ranchos after they should be measured off and segregated ?
The decree does not clearly state of what the land confirmed was sur- plus. But it is insisted that what here may appear to be ambiguitas latens and subject to explanation by extrinsic evidence is explained by subsequent terms in the decree, and no other evidence is admissible ; that wherein the decree describes the surplus as that "which on the 23d day of April, A. D. 1841, *
* existed, lying between the tracts known as Ranchos of San Antonio," etc., the Board and Court necessarily meant a tract of vacant public land, in the sense of lying without the exterior boundaries named
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by the Governor in the grants of said tracts, and hence surplus of the gene- ral tract of public land out of which the several Ranchos mentioned were taken, and bounded by their exterior boundaries; that in describing the land as surplus, which existed in 1841, lying between tracts known by the names mentioned, those tracts must have had known boundaries, and that a grant of quantity which might be located anywhere within the exterior limits mentioned would not have been referred to as a known tract.
But it will be seen that these subsequent terms necessarily lead for ex- planation and certainty to matters outside the decree itself. To ascertain what surplus existed in 1841, we certainly must look to matters not set forth in the decree. Were the Ranchos mentioned grants from the Mexican Government ? Were they completed grants ? Were they grants by names of places, or by specific boundaries, or of quantity within larger exterior limits ? If of quantity, had they been set off and segregated ? If not, what were their exterior boundaries ? These and divers other necessary questions are not answered by the decree, and the decree itself necessarily refers us to extrinsic matters. This is latent ambiguity, and the decree is by no means peculiar in this respect.
It is well settled that even the instruments referred to in the decree cannot be read to vary the natural import of the language used, if there be no uncertainty therein, nor to control the description of boundaries that are certain and free from ambiguity, but only to explain an ambiguity (U. S. vs. Halleck, 1 Wall., 455 ; decision in San Jacinto Nuevo y Potrero, above cited), and the same may be said of all extrinsic evidence resorted to.
Now, looking at the petition and grant referred to in the decree we find that the Castros petitioned for "a piece of vacant land which is situated 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 Ranchos aforesaid." Here we find the land de- scribed as both " vacant " and " sobrante ;" but in terms as sobrante of the Ranchos mentioned in the petition. What is meant by the word " vacant" as used in the petition ? Does it mean land that was vacant in the sense of not being or having been within the exterior limits of any of the Ranchos mentioned, or vacant in the sense that it was not occupied by any of the grantees of the said Ranchos, nor claimed as being included in the quantity to which they were respectively entitled and hence subject to grant ? It would appear from the further description thereof, " which land is the over- plus (sobrante) of the Ranchos aforesaid," that the latter was meant.
The Governor granted to the Castros the land of which they made men- tion in the petition, and by no other description than that which they had employed, holding them " under obligation to present themselves anew, ac- companied by a map of the land, so soon as the boundaries of the neighbor- ing Ranchos should be regulated."
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Mexican Grants.
It would appear from this that the boundaries by which the tract was to be defined were not then fixed and certain, and that the lines of the neighboring Ranchos had not then been regulated.
As has been explained, San Antonio was a grant by boundaries, which were as certain then as now ; but San Pablo, Pinole, Acalanes, and Laguna de los Palos Colorados were grants of quantity, which quantity had not been segregated in 1841. Enough appears in the records of the Land Com- missioners to show that as San Pablo and Acalanes were claimed and occu- pied in 1841, there was land in the locality named by the Castros, which would not be taken to satisfy the quantity to which these grants were re- spectively limited.
The establishment of the Castros, owners of San Pablo, was on the part of the Rancho adjoining the bays of San Francisco and San Pablo, and that of Valencia was considerably east of the western exterior boundary of the large tract. It was well known that there was more land lying between these Ranchos as thus possessed than would be required in satisfying the quantity to which the respective donees were entitled. The northern limit of Moraga's Rancho would not interfere with this sobrante. The bounda- ries of San Antonio and the exterior boundaries of Pinole, as defined in the grant in 1842, were natural objects ; and if surplus was thrown off of neither of them there would still be a large tract between them, surplus of San Pablo and Acalanes. Now, if all the exterior boundaries of San Pablo, Acalanes, and Moraga's Rancho were clear, then there would have been no difficulty in presenting a map of the sobrante asked for, if it was composed of a tract bounded by the exterior boundaries of the five Ranchos mentioned. But it does not appear that it was customary to regulate exterior bounda- ries of grants of quantity in the sense of establishing them permanently. Consideration was, of course, to be given them, so far as to locate the quan. tity granted within them; but I think it cannot be questioned that the boundaries to be regulated were such as defined the quantity of the land actually granted, and remained as the boundaries of the land to which the donee was legally entitled under the grant.
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