USA > California > Santa Clara County > History of Santa Clara County, California : including its geography, geology, topography, climatography and description > Part 23
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As this Court had already declared the southern and only disputed boun- dary of the tract, the remanding of the cause, with the directions above
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stated, appeared to this Court to be an instruction to review and reconsider its opinion on that point, and also to allow further evidence to be taken in relation to it. The cause having been originally heard, with the consent of both parties, and without any suggestion that further evidence was desired or obtainable, the application on the part of the United States for leave to take further testimony was resisted on the part of the claimant. It seemed. however, to the Court, that the directions of the Supreme Court clearly con- templated that such testimony should be taken, if offered, and that the obe- dience due from this Court to the mandate of its superior required it to per- mit either side to offer such further testimony as might be desired. Addi- tional testimony has therefore been taken, and it now remains for the Court again to declare the boundaries as originally declared in its former decree, or differently, if on reconsideration that decree should appear to be errone- ous, or if the additional testimony is such as to induce it to change its opinion.
In the opinion heretofore delivered, it was observed-" 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 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 incon- siderable distance from each other, and flowing in opposite directions, between the Sierra and 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 in this ridge are situated the valuable quicksilver mines, the existence of which gives to this inquiry its chief importance." To this description it may be added, that the range of low hills are not throughout their whole length entirely detached from the sierra, but are connected with it at one point by a spur or ridge running nearly at right angles to the general direction of the sierra and the lomas. This ridge is at its lowest point one thousand one hundred feet above the level of the valley. The height of the Almaden Peak at the eastern extremity of the lomas is about one thousand five hundred feet above the level of the valley, but the lomas as they extend towards the west diminish in height, and are separated by various depressions, which permit easy access from the valley on the north to the Arroyo Seca at the base of the sierra. The average width of the ridge is one mile and four-tenths, and though at the Almaden Peak the descent
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to the valley is abrupt, yet further to the west the diminished height of the hills, and the frequent depressions in the ridge, permit the valley to be reached at many points by easy and gentle declivities.
It is proper to add that after the proofs were submitted, the Judge, at the suggestion of the District Attorney, and accompanied by that officer and the representative of the claimant, visited the premises in order by personal inspection to become acquainted with its topography, and to be able more accurately to understand and to appreciate the testimony.
The question, then, to be determined is-What is the southern boundary designated in the grant ?
The grant itself describes the land as bounded by the "Sierra;" but the question recurs-What is the natural object so designated? Is it the main chain to the south of the Lomas Bajas, or is it the Lomas Bajas themselves? The natural meaning of the term "Sierra " would seem to point to a great mountain chain, rather than to a range of hills parallel to it and separated from it, except at one point where the two ranges are connected by a narrow ridge or divide.
On the diseño presented by Larios, the sierra is described as the " Sierra del Encino." The very remarkable oak tree from which this name was evi- dently derived is situated on the main chain of mountains, and is a conspic- uous object from all parts of the valley. The "Sierra " mentioned in the grant is that on which this tree is situated, as distinguished from the Lomas Bajas or lower ridge to the north of it. Or did he intend to include within it both ranges ?
On the part of the claimant, numerous witnesses testify that the part of the Sierra Azul on which the oak tree is situated, is called Sierra del Encino, but that the low range of hills on the south of it, and separated from it by the creeks, was never known as the sierra .. That they were, until the discovery of the mine, called Lomas Bajas, and subsequently " Las Lomas de Mina de Luis Chaboya," or " Cuchilla de la Mina de Chaboya." They describe the range known as the "Sierra" as rising from the streams, and the latter as running between the sierra and the ridge known as the Cuchilla de la Mina.
No less than nine witnesses, many of whom have lived in the neighborhood from twenty to forty years, testify to these facts, and to their testimony may be added that afforded by the diseño of Berreyessa, who at the time he pre- sented it had been established in the cañada abont nine years. On this map the two ranges of hills are distinctly delineated separated by a broad valley- far broader than the ravine actually existing. The lower range is inscribed " Lomas Bajas" while the upper is marked "Sierra Azul;" thus indicating that in 1842 and at the time when the petitions of both Larios and Ber- reyessa were before the Governor, and before the question had any im-
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portance, a marked discrimination was made even in the rude diseño presented by the applicant between the ridge of Lomas Bajas and the sierra behind it.
Since the case has been remanded, the testimony of three witnesses, on this point, has been taken by the United States.
Antonio Suñol testifies that he never heard of the Sierra del Encino, nor of any range of hills called the "Cuchilla de la Mina de Luis Chaboya." That the mouth of the mine is in the " Sierra Azul." On his cross-examination he states that the ridge has been called "Lomas" or "Lomas Muertas de la Sierra Azul," and that after the mine was discovered " we always said the mine of Chaboya which is in the Sierra Azul."
José Maria Amador testifies that he does not know the "Sierra del En- cino," nor " La Cuchilla de la Mina de Luis Chaboya." That the mine is situated on the " Loinas Bajas de la Sierra Azul." "It is in the Sierra Azul itself. The Sierra descends regularly; there is no breach nor separation in it. The mine is in a low loma. It is all known as the Sierra Azul. from the foot to the top of it."
José Romero testifies that he does not know the Sierra del Encino, nor the Cuchilla de la Mina de Luis Chaboya. That the name of the mountain on which the mine is situated is the "Sierra Azul."
On his cross-examination, in reply to an inquiry as to the name of the creek " which passes between the Guadalupe mine and the Sierra," he states its name to be the "El Arroyito del Corral del defunto Rafael." That he knows the loma where the Guadalupe mine is situated, and the sierra in which it is. That loma and sierru mean the same thing with us."
It is unnecessary to comment on the testimony of these witnesses, for the preponderance of evidence is clearly against the accuracy of their statements or their recollection.
If then we were to fix the southern boundary of this tract by calls of the grant alone, the evidence would leave no room for doubt that the grantor meant by the term "Sierra," in the grant, the lofty chain of mountains on which the oak tree is situated, and which being for the most part covered with chemisal, presents an azure hue at a distance; rather than the lower and parallel ridge, known as the Lomas Bajas or Cuchilla de la Mina, and which is for the most part covered with wild oats and suitable for grazing.
But the great difficulty in the case is presented by the diseño which accompanies the expediente of Justo Larios. On this diseño a single range of hills, inscribed "Sierra del Encino," is rudely delineated; from this range the two creeks are represented as debouching into the plain. If this sierra be the main Sierra, the Lomas Bajas are entirely omitted on the sketch. I have been much impressed with the very able and elaborate argument on this point submitted by the counsel who appeared for the United States, as
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also by the testimony of many surveyors that, guided by this map alone, and crossing the valley in a southerly direction, they would stop or fix the southern limit of the tract at the foot of the first hills which rise from the valley-that is at the foot of the " Lomas Bajas."
It is urged that the southern boundary, as shown by this diseno, is a line drawn at the foot of the range inscribed " Sierra del Encino," and from one creek to the other, and not along the course of either. That if the range delineated was intended to represent the main sierra, the arroyos, and especially the Seca, would have been represented as running below or to the north of it, and not debouching from it; and that the Lomas Bajas would not have been omitted.
It may perhaps be admitted, that if we were to be guided by the diseño alone, it would not be easy to avoid the conclusion so earnestly and ingeniously pressed upon the Court in the brief submitted by the United States. The indications, however, afforded by the diseño, are not free from all ambiguity. On that sketch the two streams are represented as debouch- ing from the hills, at points situated on a line nearly horizontal. The map of Lewis, exhibited on the part of the United States, shows that the Arroyo de los Alamitos, called on the Larios diseño Arroyo de los Capitan- cillos, issues from the foot-hills, or Lomas Bajas, at a point considerably to the north of that where the Arroyo Seca turns the western extremity of those hills and debouches into the plain. If a line then be drawn from the point where the Alamitos debouches, to that where the Seca turns the lomas, it would depart considerably from a horizontal line.
Again: The space inclosed between the creeks and the sierra is repre- sented on the Larios diseño as not quite twice as long as it is brcad.
But if the sierra on the diseño be taken to mean the Lomas Bajas, the map of Lewis shows that the tract between the Alamitos and the Seca on the east and west, and the Capitancillos and the foot of the lomas on the north and south, is about four times as long as it is broad.
Again: The Arroyo de los Capitancillos is represented on the Larios diseño as running towards the south-east diagonally across the valley, and then turning towards the south and running in a southerly direction perpendicu- larly to the valley, and nearly parallel to the Arroyo Seca for a considerable distance, until it reaches the sierra. But if the sierra which it reaches was intended to be the Lomas Bajas, it should be drawn as meeting them while running in a south-easterly or diagonal course. No part of its southerly or perpendicular course should be represented. The map of Lewis shows that the course of the stream from a point above or near the hacienda is deline- ated on the Larios diseño with tolerably accuracy, and that from that point it flows in a northerly direction perpendicularly to the valley for a consider- able distance, and it is only after turning and leaving the Lomas Bajas that
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it takes a direction diagonally across the valley. If, then, the red line drawn on Lewis' map as the southern boundary of that tract were drawn on the Larios diseño to the corresponding point of the Capitancillos, it would strike the latter not far from the letter " A," on that diseño, and that por- tion of the stream flowing in a north and south direction would be excluded.
Again: By looking on Lewis' map it will be seem that the Arroyo Seca, after running in a westerly direction along the base of the main sierra, and between it and the lomas, on reaching the end of the latter makes a sudden bend to the north and debouches into the valley at a point very near the base of the sierra; in other words, that at this point the flat or valley land extends nearly up to the base of the main sierra. If, then, a line be drawn from this point to the most southerly point of the Arroyo de los Alamitos or Capitancillos on the diseño of Larios, it would nearly coincide with the base of the sierra as contended for by the claimant; and would moreover be almost a straight line, and in this respect correspond with the indications of the diseño better than the very sinuous and irregular line which is found by following the base of the foot hills which project into the valley. For it is to be observed that neither of the lines run by Lewis as the southern boundary of the tract follows what is claimed to be the boundary indicated by the diseño, viz., the base of the lomas; but run upon the sides of and over those hills at a considerable and apparently arbitrary distance from their base.
The slightest comparison between the diseño of Larios and the map of the country shows the former to be in many other respects incorrect and defect- ive. The angle of the creeks at which the castern boundary commences is not laid down, and the lomita which is also called for in the description of that line does not appear. It is, therefore, no very extravagant supposition that the Lomas Bajas were also omitted, particularly when the circumstances under which the diseño was drawn, as detailed by Petronillo Rios, are considered.
The foregoing observations, I think, warrant me in saying that the diseño of Larios does not afford those clear, certain, and unmistakable indications of the location of the southern boundary contended for by the counsel of the United States.
But in determining this question we are not at liberty to confine our attention to the Larios diseño alone.
The record shows that Justo Larios and Berreyessa had occupied different portions of the Cañada de los Capitancillos for many years before the date of their applications to the Governor for their respective grants. Between them a dispute as to their boundaries had arisen. Before the grant to either was issued, they appeared before José Z. Fernandez and agreed upon the line which should form their common boundary.
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The description of this line, as given in the report of Fernandez, was inserted in both grants, and the line was marked by that officer on the diseño of Berreyessa "as being the more exact." In the grant to Larios the eastern boundary is described as the rancho of citizen Berreyessa, "which has for boundary the angle," etc., and in the grant to Berreyessa his western boundary is in like manner described as " the rancho of citizen Justo Larios, which has for its boundary the angle," etc. The eastern boundary of Justo Larios is thus indirectly described in his own grant, but directly in that of Berreyessa: while the western boundary of the latter is in like manner indi- rectly in his own grant, but directly in that of Larios. At the time of mak- ing the grant the Governor had probably before him both diseños, but cer- tainly that of Berreyessa, on which the boundary line described by him in both grants had been marked by Fernandez for his information. In deter- mining, therefore, the boundaries of Justo Larios, it seems to me not only proper but necessary to recur to the grant to Berreyessa, where alone the boundary of Justo Larios is described as such, and to the diseño of Berreyessa, upon which it was marked "as being more exact."
The Governor did not grant to Justo Larios the tract delincated on his diseño, viz., the land between the Arroyo Seca and that of Capitancillos, or a line to the east of the latter. He granted the land between the Arroyo Seca and a line drawn from the angle of the ereeks, passing by the eastern " falda " of the " lomita in the center of the cañada to the sierra;" and this line was marked on the Berreyessa diseño, and at a considerable distance to the west of the Capitancillos or Alamitos.
In declaring this boundary, therefore, which was different from that solic- ited by Larios and indicated on his diseño, we are compelled to resort to the diseño of Berreyessa, which becomes quoad hoc the diseño to which the grant refers. On the Berreyessa diseño the two ranges of hills are rudely but unmistakably delineated. The first or most northern is inscribed " Lomas Bajas," while the higher ridge to the south is inscribed "Sierra Azul." The valley represented as lying between them, though its width is grossly exaggerated, yet serves to indicate by that very exaggeration the discrimination in the grantor's mind between the Sierra and the Lomas Bajas.
The dotted line commencing at the angle of the creeks is produced across the lomas bajas, across the intermediate valley, and the Alamitos repre- sented as flowing through it to the base of the main sierra.
If this line be the eastern boundary of Justo Larios, as I think it must be considered, there can be no doubt as to the range of mountains intended by the term "Sierra " in his grant.
It is urged that Berreyessa had applied not only for the Cañada de los Capitancillos, but for all the hills which pertain to it; whereas Justo Larios
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petitioned for a part of the cañada alone. That therefore in the grant to Berreyessa, and on his diseño, the line was extented so as to include the low hills solicited, but that such an extension ought not to be made in favor of Larios, who solicited the cañada alone.
This argument assumes that the term canada as used in these grants does not include the low hills at the foot of the sierra, but that it is bounded and limited by them. But the language of the petition of Berreyessa referred to seems to convey the contrary idea, for it speaks of the low hills " which belong or pertain to the said cañada." He does not ask for the cañada and also a portion of the sierra, but for the cañada and the low hills pertaining to it. It is surely not reasonable to say that he considered and asked for the low hills as not belonging to or a part of the canada he solicited.
Again: The Governor, who with respect to Berreyessa, it is admitted, intended to grant the low hills, describes the tract granted to him "as a part of the place known as the Canada de los Capitancillos," thus showing that in his apprehension at least, the place known as the Cañada de los Capitan- cillos did include the low hills solicited. In the grant to Larios it is described as the "place known by the name of Capitancillos"-the word canada being omitted in the grant though it is inserted in the decree of concession.
Again: The Governor, confessedly intending to include within the grant to Berreyessa the lomas or low hills, bounds his grant by the sierra. With both petitions and both diseños before him, and with his attention directed to the discrimination between the sierra and the low hills belonging to the canada, he nevertheless uses the same term sierra in describing the bound- ary of Larios. Can we infer that in the grant to Berreyessa he meant by this term one natural object, and in that to Larios another? I think not. The sierra referred to in both grants must be the same, and as that intended in the Berreyessa grant is unmistakable, we are enabled to fix with corresponding certainty the sierra referred to in the grant to Justo Larios.
I have given to this case much attention. I have endeavored to decide it uninfluenced by the previous opinion of this Court. Upon the best consid- eration I have been able to give to the questions involved, I have not been able to discover that that opinion was erroneous.
The remaining point to be considered is as to the form of the decree.
In the opinion of the Supreme Court, (20 How., 426) it is said: "The southern, western and eastern boundaries of the land granted to Larios are well defined, and the objects exist by which those limits can be ascertained. There is no call in the grant for a northern boundary, nor is there any refer- ence to the diseno for any natural object, or other descriptive call to ascer- tain it. The grant itself furnishes no other criterion for determining that boundary than the limitation as expressed in the third condition. * * If the limitation of quantity had not been so explicitly declared, it might have
S.Th. Filmas. 1
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been proper to have referred to the petition and diseño, or to have inquired if the name Capitancillos had any significance as connected with the limits of the tract, in order to give effect to the grant. But there is no necessity for additional inquiries. The grant is not affected by any ambiguity. * The grant to Larios is for one league of land, to be taken within the southern, eastern and western boundaries designated therein, and which is to be located at the election of the grantee or his assigns, under the restrictions established for the survey and location of private land claims in California by the Exec- utive Department of this Government."
The District Court is there directed to declare the external boundaries designated in the grant.
From the foregoing it is, I think, evident that the Supreme Court consid- ered the southern, western, and eastern boundaries were alone designated in the grant, and that as the limitation of quantity was explicit, and there was no ambiguity in the grant, the northern boundary was to be determined by quantity alone ; and that it was "not authorized to depart from the grant to obtain evidence to contradict, vary, or limit its import."
When, therefore, this Court has, pursuant to the directions of the Supreme Court, declared those three external boundaries, it has declared "the south- ern, western, and eastern boundaries of the land granted to Larios," and the remaining boundary is to be ascertained by quantity.
It is urged on the part of the United States that the league is to be taken within the three boundaries named, but it is not of necessity bounded by them ; that its location within them is to be subject to the restrictions established by the executive; and that the northern boundary of the league is to be deter- mined by the northern boundary of the tract within which it is to be located.
The Supreme Court undoubtedly says that the league is to be located within the three boundaries mentioned. But a reference to the preceding part of the opinion dispels any doubt which might be suggested by this expression.
It is said unequivocally, that the southern, western, and eastern bounda- ries of the land granted to Larios-not of the tract within which the league granted to him is to be taken-are well defined, and the Supreme Court explicitly declares that the northern boundary is to be determined by limit- ation of quantity alone. "The grant itself furnishes no other evidence for determining that boundary than the limitation of quantity as expressed in the third condition. This is a controlling condition in the grant;" and they add that no additional inquiries to ascertain that boundary (the grant being free from ambiguity) are necessary or authorized by law.
It seems to me that the import of this language is unmistakable, and the land granted to Larios must be decreed by this Court to be but one league of land, bounded by three external boundaries mentioned in the grant, as the same are ascertained and declared in this opinion. The fourth or northern
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boundary to be ascertained by quantity, and to be run at the election of the grantee or his assigns, under the restrictions established for the location and survey of private land claims in California, by the Executive Department of the United States.
The following is a list of land claims connected with Santa Clara county presented to the Commission, pursuant to the provisions of the Act of Con- gress of March 3, 1851, entitled, " An Act to ascertain and settle the Private Land Claims in the State of California:"-
Bernard Murphy, claimant for Las Uvas, three square leagues, granted June 14, 1842, by Juan B. Alvarado to Lorenzo Pineda; claim filed January 22, 1852, confirmed by the Commission September 19, 1854, and by the Dis- trict Court January 14, 1856; containing 11,079.93 acres.
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