USA > California > Santa Clara County > History of Santa Clara County, California : including its geography, geology, topography, climatography and description > Part 21
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It is not necessary now to recapitulate the various considerations upon which the Court determined the question. It was of opinion that where the boundaries of the land granted were designated with reasonable certainty,
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MEXICAN GRANTS.
the mention in the condition of a certain number of leagues, " more or less," as the quantity of land granted, should be considered as indicating an inten- tion to grant the whole tract within the boundaries, provided the excess over and above the number of leagues mentioned was not so great as to in- dicate gross error or fraud; and that, as under the former government the ordinary unit of measurement was a league, the term " more or less" should at least be constructed to embrace such fractional parts of a league as might be found within the boundaries, if no greater excess than some fraction of a league were found within them. It may deserve consideration whether such a mention of quantity should not be considered in all cases, except those of gross error or fraud, rather a conjectural estimate of the quantity previously granted than as a limitation of that quantity, and whether the grant should not be deemed, except in the cases referred to, a grant by metes and bounds, or by boundaries.
It is enough, however, for the present, to say that this Court has decided that under the words " more or less" such fractional part of a league over and above the number of leagues mentioned will pass, as may be contained within the boundaries described in the grant. This point was not discussed at the hearing of this case, the District Attorney being aware that it had already been passed upon by the Court.
The questions more particularly debated were :- First, whether the Court had any power by its decree to designate the boundaries of the tract con- firmed to the claimant, or whether the language of the grant must be adopted, leaving the location of the boundaries and the identification of the natural objects called for to the Surveyor General. Secondly, what were the boundaries called for.
As to the first point I entertain no doubt. The Court is not, it is true, authorized by the Act to designate the "extent, locality anl boundaries" of the land. This, in the absence of a preliminary survey, would be impracti- cable; but the determination of the validity of a claim to a particular tract of land necessarily involves an inquiry, to a certain degree, into the bound- aries or the extent of the tract, the validity of the title to which is in ques- tion.
If the Court decrees that the title of the claimant is valid to a piece of land, it should by its decree identify and designate that land, so that it may be known to what the claim is valid. But surely it is not only its right but its duty to construe by the aid of evidence and argument any ambiguity or uncertainty apparent on the face of the grant itself, and where the grant, as in this case, speaks of a "Sierra" as a boundary, to ascertain and declare what Sierra is meant, and to express in its decree that it confirms a claim to a tract bounded by a particular and specified Sierra, an l not by such Sierra as the Surveyor General may consider to have been inten led.
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HISTORY OF SANTA CLARA COUNTY, CALIFORNIA.
The Supreme Court, in many of the cases brought up on appeal from this Court, have entered fully and freely into the question of boundaries, and appear to have considered their determination not only as within their juris- diction, but as an appropriate and important part of their duties.
The remaining question to be considered is, what boundaries were intended by the grantor. The only one of those mentioned, the identity of which was debated, is the southern boundary mentioned in the grant as "the Sierra." The point to be determined is-what natural object was meant.
The evidence shows that the tract called Capitancillos is a valley lying along an arroyo or brook; on the southerly side extends a range of low hills, running from east to west. At their eastern extremity, where they are intersected by the Alamitos, these hills attain considerable elevation, but they decline in height towards the west, where they reach and are turned by the Arroyo Seca. Behind this ridge or cuchilla the main Sierra or mountain chain raises itself to a great height, and is separated from the ridge of " lomas bajas," already spoken of, by the two streams mentioned. These streams rise at an inconsiderable distance from each other and flowing in opposite directions between the Sierra and the lomas bajas, they turn the eastern and western extremities of the latter and debouch into the plain. Upon the slopes of the ridge of low hills, as well towards the valley on the north as towards the streams behind it on the south, the best or most permanent grazing is to be found, and on this ridge are situated the valuable quicksilver mines, the existence of which gives to this inquiry its chief importance.
The question is-Is the Sierra mentioned in the grant the mountain chain to the south of the lomas bajus, or is it the lomas bajas themselves ?
If there were no other means of determining this question, the word " Sierra " itself, by its necessary import, as well as from the evidence which shows to which of these natural objects it was in fact applied, would leave little room for doubt. The natural and ordinary meaning of the term clearly points us to a great mountain chain, rather than to a ridge of low hills parallel to but separated from it. The evidence is conclusive that such was the meaning and use of the word with reference to these particular natural objects, and that while the mountain range was known as the Sierra, the ridge of low hills was known as the "Cuchilla la mina de Luis Chaboya," or as the lomas bajas.
The expediente furnishes more conclusive evidence on this point. The tract is described, as we have seen, as of one "league, a little more or less, as is explained by the map accompanying the expediente." On this map is found rudely delineated a mountain range, and this mountain range is inscribed " Sierra del Encino," or "of the oak tree." The Sierra mentioned in the grant is therefore evidently the "Sierra del Encino," for that is the only Sierra delineated on the map.
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The evidence discloses that there is on the main Sierra or mountain chain an oak tree of extraordinary proportions and striking appearance. Situated on a spur or ridge of the mountain, it is a conspicuous natural object from all parts of the valley and for many miles around. The photograph exhib- ited in Court shows that its size and isolateil situation are such as to strike the eye and arrest the attention of the most casual observer. Few who reside in that part of the country but are acquainted with the existence and situation of this tree, and it appears in the speech of many of the former inhabitants to have given a name to the Sierra on which it is situated. If then, as appears indisputably, the Sierra referred to in the grant be the "Sierra del Encino," the Sierra on which this oak tree is situated must be the one.
A still further confirmation of these views is derived from the map accompanying the expediente of Berreyessa.
The grant we are considering mentions as the eastern boundary of the tract granted "the rancho of citizen Jose R. Berreyessa, which has for a boundary a line running from the junction of the Arroyo Seca and Arroyo de los Alamitos southward to the Sierra," etc. This line thus dividing the two ranchos had previously been a subject of dispute between the colindantes or neighboring proprietors. It was finally settled, however, by the Govern- ment before the grants were issued, and a dotted line, indicating the boundary agreed upon by the parties and fixed by the Government was made on the diseño of Berreyessa. This line is described in both grants in the same terms.
That under consideration refers, as we have seen, to the rancho of Berrey- essa as the boundary of the rancho of Justo Larios, and then describes the line as the boundary of Berreyessa's tract. The same inverted mode of description is used in the grant to Berreyessa.
To determine what the boun- dary of Justo Larios' land is, we must, in literal compliance with the terins of the grant, ascertain the boundary of Berreyessa's land, and in ascertaining the latter we resort to the map on which the dotted line is marked. In Berreyessa's grant, as in that of Justo Larios, the line is described as extend- ing to the "Sierra," and as the ranchos were conterminous, and the eastern boundary of one is the western boundary of the other, the "Sierra " to which their common line of division extends must be the same. On recur- ring, then, to Berreyessa's map and the dotted line alluded to, all doubt is dis- sipated as to the range of mountains referred to.
On this map two ranges of hills or mountains are rudely but unmistake- ably delineated. They are separated by a broad valley-far broader than that actually existing, but indicating by its exaggerated delineation the dis- crimination in the grantor's mind between the ridge of low hills and the Sierra, or mountain range behind it. The lower ridge is inscribed "Lomas Bajas," while the chain behind it and distinctly separated from it is inscribed " Sierra Azul," from the hue which the mountains assume at a distance.
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HISTORY OF SANTA CLARA COUNTY, CALIFORNIA.
The dotted line which by the grant is to terminate at the "Sierra " is pro- duced across the " Lomas Bajas," across the valley beyond them, and termi- nates at the " Sierra Azul."
There can thus be no room for doubt that the Sierra intended was the main Sierra or mountain range, and as the western line of the land of Berreyessa extended to this range, the land of Justo Larios, which has the same line described in the same terms as its eastern boundary, must have the same extent. The Sierra referred to in Justo Larios' grant must necessa- rily be the same as that referred to in grant the of Berreyessa, and as to the latter, there can be, as we have seen, no question.
Other considerations in support of this view might be urged. I think it unnecessary. There seems to me no room for doubt that the Sierra referred to in the grant was the main Sierra described by the witnesses, and not the range of low hills which has been attempted to be assigned as a boundary.
THE UNITED STATES, Appellants, vs. JAMES ENRIGHT, claiming a tract of lund in Santa Clara county. Two thousand varas square.
An inchoate title, followed by juridical possession, presents an equity which the United States are bound to respect.
This claim was confirmed by the Board, and appealed by the United States.
The documentary evidence of title exhibited by the claimant in this case is as follows: A petition to the Governor dated December 20, 1844; a margi- nal decree or order for information by the Governor, and a favorable report by the Secretary, Manuel Jimeno. On receiving this report, the Governor makes the following decree, "January 6, 1845. Granted as asked for and reported by the most Reverend Father Minister Micheltorena."
The claimant has also produced a record of judicial possession, which seems to have been formally given him by the Constitutional Judge of First Instance of the Pueblo of San Jose Guadalupe, February 18, 1846.
It is objected that these documents are insufficient to vest any title, either legal or equitable, in the claimant. It must be admitted that the con- cession in this case is not the final documento or title which, by the eighth article of the regulations, the Governor was authorized to issue when the definitive concession was made. In Arguello vs. The United States, (18 How., 543) the Supreme Court, after alluding to the "informes" usually required, says: "by the fourth section, the Governor being thus informed may 'accede or not' to the petition. This was done in two ways; some- times he expressed his consent by merely writing the word ' concedo' at the bottom of the expediente; at other times it was expressed with more formal- ity, as in the present case. * It is intended merely to show that the Gov- ernor has 'acceded' to the request of the applicant, and as an order for a
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MEXICAN GRANTS.
patent or definitive title in due form to be drawn out for execution. It is not itself such a document as is required by the eighth section, which directs that the definitive grant asked for being made, a document signed by the Governor shall be given to serve as a title to the parties interested." But this concession, although not' the final title which issued under the eighth article, is nevertheless a grant. The words of the grant are positive and plain; and though shorter and more informal than the usual decree of con- cession, commencing with the words " vista la peticion," it is in all respects as effectual to constitute an inchoate or imperfect title.
It has always been held by this Court, that according to the provisions of the regulations the formal or definitive title contemplated by the eighth article could not issue until after the concession of the Governor had been approved by the Departmental Assembly; and that though the practice of issuing that document in advance of such approval, and in terms " subject to it," obtained to a considerable extent, yet such [a document, where no approval had been obtained, constituted merely an inceptive or equitable title. Whether this latter view be correct or not, no doubt can be enter- tained that the first decree of concession, whether made in the more formal manner usually observed or, as in the present case, by the short declaration that the land was "granted as asked for," afforded the basis for the Depart- mental Assembly, whose approbation was necessary to perfect or give " definitive validity " to the title.
When, therefore, it appears that this inceptive title has been delivered to the party shortly after its date, and has been regarded by the judicial officer as furnishing the requisite authority to enable him to put the grantee in possession, it should be treated as vesting in the grantee the inchoate or equitable title, which, when followed by occupation and cultivation, ought to be respected.
There is no reason to suppose that when the Governor, after having obtained the requisite information, had acceded to the petition, made a decree of con- cession, and ordered the patent to issue, he would have declined to sign the title in form. So far as his action was concerned he was functus officio, except the merely formal act of signing the final " documento ;" and it may well be doubted whether, if this concession had been approved by the Assembly, he would have been at liberty to withhold from the party the formal evidence of title which the eighth article directs him to issue in such cases. It is not explained why the Governor did not in this case pursue the more usual practice of issuing the final title "subject to the approval of the Assembly." He may, perhaps, in strict conformity with the regulations, have withheld it until the approval was obtained, or he may, according to the loose and informal practice of the country, have considered that for so small a piece of land the grant indorsed upon the petition was sufficient to secure
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HISTORY OF SANTA CLARA COUNTY, CALIFORNIA.
the rights of the applicant. The concession was at all events delivered to the grantee; for we find it in his hands very soon after its date, and by virtue of it the possession was formally delivered to him.
The next inquiry is, did the grantee fulfill the conditions usually annexed to the formal title, and in consideration of which it issued?
On this point there is some conflict of evidence. After referring to the testimony, the Board, in their opinion, say :
"From a careful examination of all the proofs in the case, we think the preponderance of proof is in favor of the claimant, and must be regarded as establishing the fact of the cultivation of the place, by Garcia, from a period anterior to the grant, to the time of sale to Enright" (the present claimant). We see no reason to dissent from this conclusion.
The remaining question relates to the location and extent of the land. The petition described it as " two thousand" varas of farming land; a note in the margin of the petition, by Pacheco, states that the petition for the farming land is for eight thousand varas.
Under this description juridical possession was given of a piece of land two thousand varas square. There might, perhaps, be some room to doubt whether the land described in the petition was two thousand varas square or two thousand square varas; but the note of Pacheco, the construction given to the concession by the Alcalde, as well as the natural interpretation of the words when properly used, satisfy us that the intention was to grant a piece of land two thousand varas square, or bounded by a line eight thousand varas long, taking the four sides together, as stated by Pacheco. .
On the whole, we are of opinion that the grantee acquired by the conces- sion, an inceptive or inchoate title, which, when followed by cultivation and juridical possession, constitute an equity the United States are bound to respect. The decree of the Board must be affirmed.
THE UNITED STATES, Appellants, vs. MARY S. BENNETT, claiming two tracts of land in Santa Clara county.
Where a decree, through mistake or accident, does not express the judg- ment of the Court, it may be corrected on motion made after the expiration of the term at which it was enrolled.
This was a motion to amend the decree of confirmation so as to conform to the decree of the Board of Commissioners.
When this case was called in its order on the calendar, the District Attorney stated to the Court that he had no objection to make to the affirmance of the decree of the Board and to the confirmation of the claim. An order confirming the claim was thereupon entered upon the minutes, and the parties were directed to draft the decree and present it to the Judge for sig- nature, first submitting it to the District Attorney for examination. A draft
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MEXICAN GRANTS.
decree was accordingly presented to the Judge, with an indorsement thereon, signed by the District Attorney, that the same was correct. It was there- fore signed by the Judge without examination, and 'in entire reliance upon the consent of the District Attorney that the decision of the Board should be affirmed, and his certificate that the form of the decree was correct.
Notice having been received from the Attorney General that the United States would not prosecute the appeal from the decision of the Board, and a decree in this Court having been made, as above stated, before the reception of the notice, the District Attorney entered into a stipulation and consent that, no appeal should be taken from the decree of this Court, and that the claimants might proceed as under a final decree. After this stipulation was entered into, it was discovered by the District Attorney, that, through error or accident, the description of the land, contained in the decree of this Court, was widely different from that contained in the decree of the Board; and that the land confirmed by this Court is of larger extent and different situa- tion from that confirmed to the claimants by the Board-the claim to which alone he intended to consent should be affirmed, and the United States had consented not further to litigate. A motion is now made to amend the de- cree signed by this Court, as above stated, so as to make it conform to the decision of the Board. It is resisted, on the ground that the term having expired, the Court has no power to alter or amend its final decrees.
If the application were intended to procure a revision and correction of any errors, either in law or in fact, or to change opinions once given, or to obtain a new decision, it would of course be denied. Even if a Court had no jurisdiction over the cause, the judgment is binding until reversed on error. (6 How., 31.) But in this case, so far as the Court can be said to have passed at all upon the questions submitted to it, its judgment and intention were that the decision of the Board should be affirmed. It certainly cannot be said to have intended to depart from that decision by confirming to the claimant another and a different tract.
Such was the obvious effect of the first order of confirmation directed in open Court to be made, and such was supposed to be the effect of the decree signed on the faith of the District Attorney's certificate of correctness. If then, through accident or mistake of the District Attorney, the decree approved by him and signed by the Court does not describe the land which he was willing should be confirmed, and which the Court supposed it was confirming, it would seem to present a case of mistake which the Court after enrollment has the power to correct. In so doing it makes no new decree, nor does it review or reverse any former judgment, nor make a new decision on points already passed upon. It merely makes the written decree con- form to what was in fact the judgment of the Court, and enters a decree now, such as it intended to enter then.
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HISTORY OF SANTA CLARA COUNTY, CALIFORNIA.
The case of Marr's Administrator vs. Miller's Executor (1 Henring & Munf., 204) is directly in point.
In that case a decree was improperly entered at a previous term by the inattention of counsel who drew it. It was sought to be amended on motion.
Per Curiam .- " The practice of this Court heretofore and of the Federal Courts in this place has been inquired into, and it appears that in all cases where, by mistake, an entry has been made, it has been rectified on motion. And where any error has been committed by the officers of the Court, or gentlemen of the Bar, it has been corrected on motion. Let the decree be set aside and entered now as it should have been."
A similar power appears to have been exercised by Lord Hardwicke, in Kemp vs. Squire, (1 Vesey, Jr., 205) and in other cases cited in the brief on the part of the United States.
On the whole, we think that the case presented is one where the Court has the authority to amend its decree; and that a decree should be entered nunc pro tunc, affirming the decision of the Board, and confirming the claim of the appellees to the land as therein described.
It should, perhaps, be observed that it is contended by the counsel for the claimant that the decree entered in this Court does not substantially differ from that of the Board. It is enough to say that the description of the land is entirely different, and designates boundaries not mentioned either in the original petition of the claimant, or in any of the documents presented by her. It is apparent that the land confirmed by the decree of this Court may le different from that confirmed by the Board. The possible existence of such a discrepancy would seem to be enough to warrant the amendment of the decree, so that it may conform to the decision intended to be, as expressed in the decree itself, "in all things affirmed."
'CIPRIANO THURN et al., claiming part of the Rancho Canada de Corte Madera, Appellants, vs. THE UNITED STATES.
Where one of two persons to whom a grant was made has exhibited a deed from his co-grantee, and obtained a confirmation of his claim to the whole tract, the co-grantee who has presented his separate claim for his half, and who denies the execution of the deed, is entitled to a confirmation as against the United States, and the rights of the parties inter sese will be left to be determined by the ordinary tribunals.
Claim for one-half of a square league of land in Santa Clara county, rejected by the Board, and appealed by the claimants.
In this case the genuineness of the grant, the regularity of the proceed- ings, and the fulfillment by the grantees of all the conditions are established by abundant proofs, and admitted on the part of the United States. The
3. J Jamison
YID
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proceedings up to the issuance of a final title and including an approval of the grant by the Departmental Assembly, were conducted in strict conformity to the Regulations of 1828; and on June 11, 1834, the final documento required by those regulations was issued to the appellants, Maximo Martinez and Domingo Peralta.
The present claim is by the representatives of the latter, and is for one- half of the rancho. Maximo Martinez has also presented his claim, which, however, embraced the whole rancho. To establish his title to the share of his co-grantee, he gave in evidence an alleged conveyance, dated May 19, 1834, from Peralta to himself. As this conveyance seemed prima facie to show the whole title to be in Martinez, the claim to the whole was confirmed to him by the Board and by this Court. Domingo Peralta now presents his claim, and would clearly be entitled to a confirmation of one-half of the land, had not the United States put in evidence the conveyance alleged to have been made by him to Martinez as above stated. Many objections to this document were urged on the part of the claimant; but its genuineness and supposed legal effect were strenuously denied.
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