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U.S. Supreme Court

The Fossat or Quicksilver Mine Case, 69 U.S. 2 Wall. 649 649 (1864)

The Fossat or Quicksilver Mine Case

69 U.S. (2 Wall.) 649


1. An appeal lies to this Court from a decree of the District Court for California, in a proceeding under the act of 14th of June, 1860, 12 Statutes at Large 33, commonly called the Survey Law.

2. If no appeal from such a decree be taken by the United States, they may appear in this Court as appellees, but cannot demand a reversal or change of the decree.

3. If a California land claim has been confirmed by a decree of the district court under the act of 3d of March, 1851, 9 Statutes at Large 631, and the decree of confirmation fixing the boundaries of the tract stands unreversed, a survey under it is the execution of that decree, and must conform to it in all respects.

4. The Survey Law of 14th of June, 1860, gives the district court no power to amend or change the decree of confirmation.

5. When the title papers designate the beginning place of a straight line, and fix its course by requiring that it shall pass a known and ascertained point to its termination at a mountain, such line cannot be varied by the fact that a rough draft (a Mexican diseno) on which it is

Page 69 U. S. 650

drawn, was not true at all to scale, and that on it the line strikes two ranges of mountains in such a way as to leave certain unnamed elevations on the draft which, with more or less plausibility, it was conjectured, but only conjectured, were meant to represent certain peaks in nature well known, more to the east or west than by reference to other objects on the draft they in nature hold.

About fifteen miles south from the southern end of the Bay of San Francisco, and separated from it by irregular mountain slopes, lies a vale, called the Canada de los Capitancillos, or Valley of the Little Captains. [Footnote 1] The northern limit of this valley is an elevation called the Pueblo Hills -- hills picturesque enough, with nothing else, however, as yet, specially to mark them. Descending or turning these, the traveler is in the vale.

Along the south edge of the valley runs a ridge of hills, range of mountains, or Sierra; for by each of these terms, as by several others, the elevation might properly or improperly be named. A value different from that of the Pueblo Ridge belongs to these. These are filled with cinnabar of unrivaled purity and richness. Here is the ALMADEN MINE -- a mine that with others near it, the Enriqueta, San Antonio &c., is estimated at $20,000,000 -- the gem of quicksilver mines in the New World, perhaps of the entire earth. This range we call the Mining Range, or Mining Ridge. The opposite map may assist a comprehension. [Footnote 2]

Immediately south of, or behind this Mining Range, and detached from it, for the most part, by a steep, narrow,

Page 69 U. S. 651

broken, and irregular depression, gorge, or valley, rises a ridge, range, or Sierra, different, as it was generally regarded,


from the other, though by some persons regarded as the main part of the same range. This elevation we designate as the Azul Range, or Azul Ridge. [Footnote 3]

Page 69 U. S. 652

The northern limit of the valley we have said is the Pueblo Hills. The top of these is about 1,000 feet above the level of San Francisco Bay and 400 above the lowest part of the valley immediately south of them.

The Mining Ridge at its greatest elevation rises several hundred feet higher than the Pueblo Hills in front of it, across the valley. The Almaden Peak, one peak of this ridge, at its eastern extremity, is 1,500 feet above this level, but the elevations of the ridge generally, as they extend towards the west, diminish in height and are broken by various depressions, which permit easy access from the valley on the north to the foot of the depression or valley at the base of the Azul Range. The Azul Range, behind, rears its head suddenly up, far above the Mining Range before it, to the height of 4,000 feet above the level of the sea.

The Mining Range extends from east to west, and parallel with the Azul Range. It runs about five miles. On its slopes, as well on that towards the valley on the north as on that which makes one side of the ravine upon the south, the best and most permanent grazing of the region is to be found. At its widest place, it is more than a mile and a half from base to base, measuring directly through, and it slopes off gradually at both ends. It is connected with the Azul Range by a ridge four hundred feet lower than itself, and twenty-four hundred lower than the Azul Range. This is a watershed, on one side of which are the sources of the Capitancillos and on the other those of the Alamitos. The one stream runs between the two ranges, and turns to the north at the western end of the Mining Range. The other flows eastward, and turning the eastern end of the range as the other had done the western, crosses the valley till its course is arrested by the Pueblo Hills. Here, turning its course to run along their base, it runs westward till it meets the other stream, and forming with it the Guadalupe River, the two discharge their waters through its channel into San Francisco Bay.

At the place where the Alamitos strikes the Pueblo Hills,

Page 69 U. S. 653

it is joined by a mountain stream called the Arroyo Seco, [Footnote 4] a point which the reader must observe.

Nearly in the center of this valley stands a little hill -- Loma, as it is called in Spanish -- its side or skirt sloping irregularly by a series of graceful undulations towards the plain, its descending curve thus forming that which it required no great imagination to call a "lap."

Such is the valley, its boundaries and its features, as they strike the eye.

In the eastern part of it, an old Mexican, Sergeant Don Jose Reyes Berreyesa, fixed himself, about 1834, by leave of Governor Figueroa. Adjoining him on the west, and holding the western part, was another Mexican, Leandro Galindo. They both built their houses and made their chief improvements at the base of the Pueblo Hills -- that is to say, opposite and away from the Mining and the Azul Ranges, their exposures to the south. Neither of them had any title but such provisional ones as were usual in California while it yet belonged to Mexico, in anticipation of a final grant. In time, Galindo went away, and was succeeded by Justo Larios, who continued his improvements at the foot of the Pueblo Hills, and granted a small piece of land, at the western extremity of the hills and near the junction of the Capitancillos and Alamitos, far off from the southern ridges, to a certain Foster. [Footnote 5] Larios and Berreyesa, however, got along less amicably than had done Galindo and his military neighbor. Berreyesa complained to the Governor that Larios claimed land that was his, and had actually removed his house and set it on the dividing line. Larios, he said, had "room to extend himself outside of the Canada," while he, Berreyesa, "had absolutely nowhere to enlarge." Larios, about the same time presented his petition,

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complaining of Berreyesa as overbearing and disposed to be rapacious. The matter disturbed the happy valley and threatened to become a feud. Governor Alvarado referred


Page 69 U. S. 655

both petitions to the Prefect, the highest judicial officer in his department, and directed him to call the parties before him, to confront them with one another, hear their proofs, and to report the result of his investigation. The Prefect did this. The parties came before him and he succeeded in conciliating them. Berreyesa produced a diseno, and with that before them they agreed upon a division line as follows:

"A straight line (una recta &c), from the angle which the Alamitos forms with the Arroyo Seco, direction southward, passing by the eastern base OR over the eastern skirt, OR lap (the meaning was not clear), of the loma [Footnote 6] (rumbo al Sul LA FALDA de la loma), in the center of the valley TO THE Sierra."

Upon this diseno the Prefect traced a dotted line, which showed what had been agreed upon. He then reported the whole matter to the Governor, and the map, with the dotted line or "L-i-n-d-e-r-o" upon it, went to the archives. A copy is opposite.

The controversy being settled, Larios petitioned the Governor for a grant. Alvarado made it. Thus it ran:

"I declare Justo Larios owner of the tract called 'Los Capitancillos,' bounded by THE Sierra, by the Arroyo Seco on the side of Santa Clara, and by the tract of Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and the Alamitos, southward to THE Sierra, passing by the eastern base, OR over the eastern skirt or lap (rumbo al Sul LA FALDA) of the loma, in the center of the valley."

The grant was subject to these ordinary conditions:

"2d. He shall solicit the proper judge to give him juridical possession in virtue of this decree, by whom the boundary shall be marked out &c."

"3d. The land herein referred to is one league of the larger size, a little more or less. The judge who shall give the possession shall have it measured in conformity to law, leaving the

Page 69 U. S. 656

surplus which remains to the nation for the purposes which may best suit him."


Page 69 U. S. 657

The diseno submitted by Larios appears on the page opposite. [Footnote 7]

About this same time, Berreyesa applied for a grant. His petition prays for a grant of two sitos, to extend from the dwelling house of Larios up to the matadero, [Footnote 8] "with all the lomas (hills), that pertain to the Canada." The dispute having been in the meantime settled, the Governor (August 20, 1842) made the concession. The grant recites the petition of Berreyesa for a part of the place called the Canada de los Capitancillos, bounded on the north by the lomas bajas of the Pueblo San Jose; on the south by the Sierra; on the west by the rancho of Larios, which has for boundary the angle formed by the Arroyo Seco, and that of the Alamitos course south, the base (or skirt) of the hill situated in the center of the Canada until arriving at the Sierra: (el cual tiene por lindero en angulo que forma el Arroyo Seco y el de los Alamitos, rumbo Sur, la falda de la loma, situada en el centro de la Canada). [Footnote 9]

To the reader who has been able to get before his mind the topographical nature of this place, it will be obvious that questions might arise on the language of the grant to Larios. There were two ridges, or two parts of one ridge, either of which ridges, or parts of a ridge, might be styled a Sierra. Sierra means a saw, and is a term applicable, in some sense, to any range or ridge of hills, serrated as every one naturally is. In certain aspects -- geologically, perhaps, or possibly, topographically maybe as well -- the Mining Range was part of the Azul Range. Was it so within the meaning of the Governor and grant? And bearing on this question

Page 69 U. S. 658

of philology would come perhaps another like it: "What meant in law the word Canada?" Los Capitancillos was a canada. But did this mean a valley so pure and simple that no elevation whatever could break its plain? or might it hold the Mining Ridge and let the vaster Azul Heights overtop the whole, and leave both plain and mine to insignificance below? These were questions which the United States might have to litigate against Berreyesa and Larios both united.

Then assuming the Mining Ridge to be part of the valley, and the United States to be thus disposed of, there might come another question -- a question for Larios and Berreyesa, after disposing of the government, to litigate between themselves. What did "falda" truly mean? It was a term the very favorite of poetry, and with a sense elegantly answered -- answered with truth as well -- by our English "lap," or "skirt," or "fold." Was this the sense in which the old Mexican soldier and his lately litigious neighbor understood it, when making peace for themselves, they made one of the greatest lawsuits which the world has seen for others?

Even conceding "falda" to mean the base of the hill, and that the parties had meant to pass it, another question might still arise upon the very lindero and map which at first seemed so plain as to render question impossible. The line was to pass the base, but did the diseno of Berreyesa, on which it was traced, not show that it also meant to pass the Mining Ridge (on this map plainly marked, and bearing the name of lomas bajas), so as to leave much its greater part with him. In nature, could any line drawn from the junction of the creeks south, past the base, do this? Then on his diseno certain elevations were marked, both on the Mining Ridge and on the Azul Ridge behind. One on the Mining Ridge was especially prominent at its eastern end. Were there any known peaks, in nature, on these ridges? If so, could any line drawn as we have mentioned be made and leave them in that relative position where the diseno seemed to place them? The difficulty may be comprehended by any

Page 69 U. S. 659

reader who compares the map at p. <|69 U.S. 651|>651, a map of the actual related topography, with the diseno of Berreyesa, which gives the parts, but in positions less relatively true.

On these niceties of language -- on such constructions of rude drafts -- depended in part the question whether this Mine of the Almaden -- the glory of the Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla -- should belong to a few citizens or to a whole republic; to the representatives of Justo Larios, to those of "the sergeant Berreyesa," or to the United States as national domain.

The grant was of the valley. The point of departure was confessedly the junction of the creeks Alamitos and Arroyo Seco. A line running "southward" "to the Sierra" Azul, ended the rights of the United States in the matter. A line running "southward" at the base of the loma, as distinguished from one which should be sustained in its curving folds, ended Berreyesa's also. If, therefore, the line was to be run to the Sierra Azul, and at the base of the loma, south and straight from the union of the creeks, the mine belonged to Larios or to whoever might be his fortunate successor.

The questions were worth a controversy.

By 1852, California was a state of the American Union, and three-quarters of the property granted to Larios had become vested in one Fossat; the remaining fourth (which was in the direction of the mission property of Santa Clara, and at the extreme west of the valley) being owned by the Guadalupe Mining Company. [Footnote 10] Fossat now presented his petition to the land commissioners appointed by the Act of Congress of March 3, 1851, to settle the respective rights of the United States and claimants under the former government to lands in California, for a confirmation of his claims derived from Larios. The board decided in favor of it, and the United States appealed to the district court; Berreyesa, however, being no party to the specific proceedings.

Page 69 U. S. 660

That court, saying nothing whatever in its opinion on the question of where the line meant to be fixed on by Larios and Berreyesa would strike the Azul Range (if prolonged to that extent) as respected the Almaden Mine, and as respected the now known and actual topography, went into an argument to show that it must at least come somewhere to that range, and over the Mining Range; in other words, that the west portion of the Mining Range, whatever that portion might be, did not belong to the United States.

The court accordingly decided that the grant was good for the place known as Los Capitancillos, bounded and described on the south by the Azul Range, as distinguished from the lower hills or Mining Ridge; on the west (about which there was no question) by Arroyo Seco on the side of Santa Clara. The decree, then, went thus as respected the eastern line:

"On the east by a line running from the junction of a certain other rivulet, called Arroyo Seco, and the Arroyo de los Alamitos, southward to the aforesaid main Sierra, passing by the point or part of the small hill situated in the center of the Canada, which is designated in the expedientes and grants of Justo Larios and Jose Reyes Berreyesa as 'la falda de la loma,' and crossing the range of hills designated above as the Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla, and in which are situated the said Guadalupe, San Antonio, and New Almaden Mines, and which is the same range of hills designated 'Lomas Bajas' on the diseno or map in the aforesaid expediente of Jose Reyes Berreyesa, the said eastern line herein described being intended to be the same line agreed upon as the line of division between the lands of Justo Larios and Jose Reyes Berreyesa, as expressed in the respective expedientes and grants of said Justo Larios and Jose Reyes Berreyesa, and delineated by the dotted line on the said diseno or map in the expediente of Jose Reyes Berreyesa; in the location of the said line reference to be made to the description thereof in the said expedientes and grants, and the delineation thereof on the said diseno or map in the expediente of Jose Reyes Berreyesa, which expedientes, grants, and diseno, or map, are on file and in evidence in this case. "

Page 69 U. S. 661

The northern boundary of the tract was declared to be that shown in the diseno or map of Larios; which was in effect the stream, marked on his draft as the Arroyo Capitancillos, but on the map styled the Alamitos.

Confirmation was thus made of the whole tract granted to Larios, with the exception of the two adjacent parcels thereof lying on the westerly end of said tract, and claimed by the Guadalupe Mining Company. This gave him a tract of about a league and three quarters.

The court in its opinion noted, indeed, that only three of the boundaries were designated in the grant, the southern, the western, and the eastern, but inclined to think that the description of the tract by name, as Los Capitancillos, a known valley, and the delineation on the diseno of Larios of the two ranges of hills within which it was contained, sufficiently indicated the location of the northern boundary, the mention of which was omitted in the grant; especially as the call was for a league pocos mas o minas -- a league more or less.

From this decree the United States appealed to this Court. [Footnote 11] This Court considered that there was more weight in the last point which the court had noted than the court itself gave to it, and reversed that decree; Campbell J., who gave the opinion, remarking in different parts of it as follows:

"The district court confirmed the claim of the appellee to land limited by specific boundaries, and ascertained those boundaries, as they exist on the land, with precision. Under this decree the grant to Larios includes seven thousand five hundred and eighty-eight 90/100 acres. [Footnote 12]"

"We concur in the opinion of the Board of Commissioners and of the district court, that affirms the validity of the grant of the Governor of California to Justo Larios, and the regularity of the conveyances through which the claimant deduces his title."

The court here gave an account of the dispute between Larios and Berreyesa, and of the settlement of it, and went on:

"The Governor granted the land to Larios, to be his property,

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subject to the approval of the Departmental Assembly, and to the performance of conditions. [Footnote 13]"

"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 reference to the diseno for any natural object or other descriptive call to ascertain it. The grant itself furnishes no other criterion for determining that boundary than the limitation of the quantity, as is expressed in the third condition. This is a controlling condition in the grant. The delivery of juridical possession, an essential ceremony to perfect the title in the land system of Mexico, was to be accommodated to it. The diseno presented by the donee to the Governor to inform him of his wants represents the quantity to be one league, a little more or less. This representation is assumed to be true by the Governor, and it forms the basis on which his consent to the petition is yielded."

"He prescribes to the officer to whom he confided the duty of completing the title to measure a specified quantity, leaving the surplus that remains to the nation as preparatory to the delivery of judicial possession to the grantee. The obligation of the United States to this grantee will be fulfilled by the performance of the executive acts which are devolved in the grant on the local authority, and which are declared in the two conditions before cited. We regard these conditions to contain a description of the thing granted, and in connection with the other calls of the grant they enable us to define it. We reject the words, 'a little more or less,' as having no meaning in a system of location and survey like that of the United States, and that the claim of the grantee is valid for the quantity clearly expressed. If the limitation of the quantity had not been so explicitly declared, it might have been proper to refer to the petition and the diseno, 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 with any ambiguity. The intention of the government of California is distinctly declared, and there is no rule of law to authorize us to depart from the grant to obtain evidence to contradict, vary, or limit its import. "

Page 69 U. S. 663

"The grant to Larios is for one league of land, to be taken within the southern, western, and eastern boundaries designated therein, and which is to be located, 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 this government. The external boundaries designated in the grant may be declared by the district court from the evidence on file, and such other evidence as may be produced before it, and the claim of an interest equal to three-fourths of the land granted is confirmed to the appellee."

"The decree of the district court is reversed, and the cause is remanded to that court with directions to enter a decree conforming to this opinion."

The case was again heard below, and on new evidence, tending, most of it, to the subject of the southern boundary. On the 18th of October, 1858, the district court again gave an opinion and again made a decree. The opinion was a further argument on the evidence, new and old alike, to show that the Azul Range was the true south boundary -- "the most important, if not the only point discussed," the court said, "on the hearing," and which the court treats as "the question to be determined." Nothing is argued about the eastern boundary. The decree again decreed that the grant was a valid one. Its southern and western boundaries were in substance as already above set forth. The eastern boundary was thus again disposed of.

"The eastern boundary is a straight line commencing at the junction of a certain rivulet called Arroyo Seco, with the Arroyo de los Alamitos, and thence running southward to the aforesaid main sierra or mountain range, passing by the point or part of the small hill situated in the center of the Canada, which is designated in the expedientes and grants of Justo Larios and Jose Reyes Berreyesa as 'la falda de la loma,' and crossing the range of hills designated above as the 'Cuchilla de la Mina,' or 'Cuchilla de la Mina de Luis Chabolla,' in which are situated the said Guadalupe and New Almaden mines, and which is the same range of hills designated 'Lomas Bajas,' on the diseno or map in the expediente of Jose Reyes Berreyesa on

Page 69 U. S. 664

file in the case, the said eastern line crossing, also, the said Arroyo de los Alamitos and terminating at the base of said main sierra; and the said eastern line herein described, being intended to be the same line agreed upon as the line of division between the lands of Justo Larios and Jose Reyes Berreyesa, as expressed in the respective expedientes and grants of said Justo Larios and Jose Reyes Berreyesa, and delineated by the dotted line on the said diseno or map in the expediente of Jose Reyes Berreyesa; and in the location of said line, reference is to be made to the description thereof in the said expedientes and grants and the delineation thereof on the said diseno or map in the expediente of Jose Reyes Berreyesa, which expedientes, grants, and diseno or map are on file and in evidence in this case."

It was ordered that the fourth line should be run so as to include one league only; and the title was confirmed on that basis.

The United States again appealed to the Supreme Court, [Footnote 14] but a motion was made to dismiss the appeal because the decree below was interlocutory. The court did dismiss the appeal, and in the opinion say as follows:

"The court determined (when the case was here before),"

"that a grant under which the plaintiff claimed land in California, was valid for one league, to be taken within the southern, western, and eastern boundaries designated therein, at the election of the grantee and his assigns, under the restrictions established for the location and survey of private land claims in California by the executive department of the government. The external boundaries of the grant may be declared by the district court from the evidence on file, and such other evidence as may be produced before it; and the claim of an interest equal to three-fourths of the land granted is confirmed to the appellee."

"This motion to dismiss the present appeal is resisted, because the inquiries and decrees of the Board of Commissioners for the settlement of Private Land Claims in California, by the Act of 3d of March, 1851, in the first instance, and of the courts of the United States, on appeal, relate only to the question of

Page 69 U. S. 665

the validity of the claim, and by validity is meant its authenticity, legality, and in some cases interpretation, but does not include any question of location, extent, or boundary -- and that the district court has gone to the full limit of its jurisdiction in the decree under consideration, if it has not already exceeded it."

The court then examining this matter and declaring what the admitted duties of the district court were, adds:

"But in addition to these questions upon the vitality of the title, there may arise questions of extent, quantity, location, boundary, and legal operation, that are equally essential in determining the validity of the claim. 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 rightfully attach to the grantee."

And this Court concludes its opinion thus:

"But after the authenticity of the grant is ascertained in this Court, and a reference has been made to the district court, to determine the external bounds of the grant, in order that the final confirmation may be made, we cannot understand upon what principle an appeal can be claimed until the whole of the directions of this Court are complied with, and that decree made. It would lead to vexatious and unjust delays to sanction such a practice. It is the opinion of the court that this appeal was improvidently taken and allowed, and must be dismissed; and that the district court proceed to ascertain the external lines of the land confirmed to the appellee, and enter a final decree of confirmation of that land."

On the filing of this mandate of dismissal, the Surveyor General of California was ordered to survey the land confirmed in conformity with the decision of the district court, made 18th October. He made the survey, which was approved by the Surveyor General, 18th December, 1860, and

Page 69 U. S. 666

filed it, with a map, in the court below, 22d January, 1861. The survey and map, as was testified by the deputy surveyor Hays, and one Conway, a clerk in his office, who assisted in making it, was made in conformity with the decree which they had before them. That survey is indicated on the map, at page <|69 U.S. 651|>651, by a heavy connected line.

It appeared also that Berreyesa had at one time caused a private survey to be made of his tract, and this survey showed that the line lay essentially as marked by this heavy connected line. Another made for the Guadalupe Mining Company located it in the same way. A public survey, made by Surveyor General Hays, in 1855, located it also thus.

Not long before the above-mentioned order of the district court was made, Congress passed the act of June 14, 1860, [Footnote 15] commonly called the "Survey Act," which authorizes the district court to allow persons not parties to the record to intervene in matters of the survey and location of confirmed private land claims, and to show the true location of the claim. For that purpose they may produce evidence before the court, and on such proof and allegations the court shall render judgment. In regard to appeals, the whole language is simply, "And no appeal shall be allowed from the order or decree as aforesaid of the district court unless applied for within six months."

The survey was accordingly ordered into court. It made the Azul Range, as distinguished from the Mining Range, the southern boundary. The eastern line was drawn, as the reporter supposes -- for he never saw the plat -- from the junction of the two creeks Seco and Alamitos south, past the base of the loma; so leaving the mine on the land of Larios.

Berreyesa, Foster and others, who had not been parties to any of the immediate previous proceedings, now excepted to it.

Berreyesa excepted because the western boundary of his land constituted the eastern of that of Larios,

"to-wit, a line beginning at the junction of the Creeks Alamitos and Seco,

Page 69 U. S. 667

and running southerly to the main Sierra and Sierra Azul, crossing the Lomas Bajas in the manner shown by the diseno of the land granted to said Berreyesa; whereas the survey confirmed in this case locates the eastern line so as to include a tract of land within the exterior lines of the land granted to Berreyesa, and not granted to the said Larios."

Foster excepted because the tract being carried over far to the south, and being confined to one league, his small tract was left out. So, on similar grounds, did other parties who subsequently abandoned their exceptions.

The United States, by the district attorney, entered a formal appearance, but made no objection to the survey at any stage of the hearing, suggested no argument, and offered no evidence against it.

Fossat, who represented Larios, came in to protect the survey, averring that it was right, and should stand.

The district court -- considering that no decision had ever yet been made by it as to the eastern boundary, not understanding, apparently, that any supposed decision with regard to that line had been passed on by the Supreme Court in either of the decisions quoted in the preceding part of this statement; conceiving further, it would seem, that under the new act of 1860 (the "Survey Act," passed after the second decision in this Court was made), the court below might, on the intervention of Berreyesa, then for the first time heard in this particular cause, determine the eastern line, irrespective of any decree obtained by either party in a proceeding which it considered as a proceeding between himself only and the United States -- proceeded to settle the eastern line, and in some degree, it was argued, to treat all things de novo. A great deal of new evidence was taken in regard to this eastern line, evidence bearing also on the southern line. The scope of much of the former was to show entire error of scale in Berreyesa's diseno, and that regulating the eastern line by certain objects, clearly enough indicated on this diseno, other than the loma, the line could not be drawn south from the junction of the creeks past the loma to the point where that diseno showed that it meant to

Page 69 U. S. 668

come. The matter will be understood better further on in the case. The result of the whole was that, affirming the Mining Range as the south boundary -- that is to say, carrying the tract to the Azul Range, as being the true Sierra, the district court now made an east line, somewhat such as is exhibited by the light dotted line on the map at p. <|69 U.S. 651|>651. The line began at the junction of the two creeks, thence ran south to the eastern base of the loma; thence south 55� west to a point where another angle was made; thence south 34� west to the Azul Range. The effect was that while Larios or his representative got some part of the Mining Ridge, the eastern line was made to reach that ridge at a point so far west that the ALMANDEN MINE, the great object of contest, and the largest portion of the ridge, fell into the tract of Berreyesa.

From this decree the claimants under Larios appealed to this Court. So did Foster. The United States took no appeal, and the representatives of Berreyesa, of course, were desirous to maintain the decree.

The whole case was now before this Court -- the case as it was presented by all the evidence taken in all the proceedings below. This was the case viewed as an original case.

But on this occasion it was here also, of course, as it might be affected by what had been decided in it on the two different occasions when it was here before on appeal, and when the court had expressed itself, and had given mandates, such as have been previously stated in this report. The effect of the district court's own two decisions on its power to decide further was also to be considered; its power, perhaps, under the Survey Law of 1860, to change the decree of confirmation.

As an original case -- the detached parts in which it presented itself below, and on the three different hearings being brought together, and all presented in sequence -- the matter was essentially thus: the disenos of both Larios and Berreyesa, the last with the L-i-n-d-e-r-o upon it, being, of course, parts of the case everywhere.

1. As to the southern boundary: witnesses were brought to

Page 69 U. S. 669

show that the ranges were one sierra, and so that the tract did not include any part of the Mining Ridge. Mr. Veach, a geologist, swore thus:

"The Mining Ridge is detached from the main mountain by a stream that runs from east to west, making a sharp hill between the higher mountain and the plain; but I look upon this as only a bench-like portion of the mountain, which has been separated from it by the gorge cut down by the stream. The reason why I so consider it is the gorge-like character of the valley of the little stream, and the sharpness of the ridge, and the elevation of the bottom of the gorge so considerably above the level of the valley; it is, I should judge, 300 feet above it. From geological considerations, also, I should consider this ridge clearly and distinctly a portion of the mountain. The ridge does not present the spur-like character which would show its detachment from the mountain, for it runs parallel with the general course of the latter."

Mr. Matheson, engaged in the public surveys of the United States, testified in the same way:

"I do not consider that there is a main sierra separate from any other portion of the sierra. The Mine Ridge is merely a spur, and connected by a ridge with the main sierra. You can travel from the valley right up to the highest point of the ridge."

Referring to the diseno of Larios (p. <|69 U.S. 656|>656), it will be noted that his tract, as there indicated, came to a range of hills called Sierra del Encino ("range of the live-oak," or, less accurately, perhaps, in a grammatical point of view, "live-oak range"). [Footnote 16]

Oaks, it was shown, grew everywhere about here. "There are a considerable number of them," said one witness,

"on the mountains back of the Mine Ridge and also on the plains north of it. There are also a considerable number of them found generally on the northern slope of the ridge, and presenting a very beautiful green appearance. "

Page 69 U. S. 670

Then there was on this diseno but one sierra indicated. The tract did not include it by passing over to any other behind it. No second range was marked. No streams of any kind answering to any in nature ran on this diseno at the foot of the range, though streams did, in fact, run at the foot of the Azul Range. At the foot of the Pueblo Hills, where a stream ran, in fact, one ran also on the diseno.

Moreover, the residence of Larios -- that in which he had succeeded Galindo -- was, like the home of Berreyesa, on the north edge of the tract, at the foot of the Pueblo Hills. [Footnote 17] Larios was living in this part of the valley. No tract of one league, not very irregular in shape, could include the Mining Ridge without excluding nearly all the land along the base of the Pueblo Hills. The maps, moreover, reversed the ordinary law which governs the construction of maps and make the top represent the south, the bottom the north, the right the west, and the left the east; hence, an inference that the point from which everything was viewed was the north edge of the valley. An experiment showed also that the disenos of Berreyesa and of Larios were much the same in size, and taking the two and putting them edge to edge in the manner of "Indentures" -- fitting the edge which indicated the western side of Berreyesa's tract against that which indicated the eastern side of that of Larios, the Pueblo Hills, as marked on each, being fitted and made the starting-point -- that the Sierra del Encino of the draft of Larios ranged itself opposite to the Lomas Bajas (the Mining Ridge, undoubtedly) of Berreyesa's, and not against the Sierra Azul, so plainly, on the draft of Berreyesa, distinguished from it. [Footnote 18]

On the other hand, witnesses showed that in many respects

Page 69 U. S. 671

the two ridges might be considered different, and by many were so; that the separation, if sometimes called a gorge or ravine, was as often or oftener called a valley. Then one witness, an American who had lived since about 1835 in California and near the place, testified that the Mining Ridge had been known by the name of Cuchilla de la Mina, and as a thing separate from the Azul Range, often known by the name of Sierra Santa Cruz, the former being connected with the latter only by a ridge at one place. It was shown also, too, that Larios was quite illiterate, "unable to handle a pen," and that his diseno had been made for him by a friend of his named Rios, from oral description given him at Monterey, away from the land, Rios himself never having been on the land nor knowing anything about it. He had not, however, drawn that of Berreyesa. The testimony -- that of photography included -- showed, moreover, and this past any question, that while the elevations hereabouts, and the plain also were fruitful in oaks, there was upon the Azul Range one umbrageous oak of venerable years and extraordinary size, standing on a spur of the mountain, projecting boldly from the mass of the range and presenting so clear an outline to an observer in certain directions as to be visible for fifteen miles -- a prominent feature in the landscape. It was testified, in fact, to be so well known to the people of the neighborhood as to have acquired the name of "Encino Coposo de la Sierra Azul." Further, on the diseno of Berreyesa, the Mining Ridge was styled Lomas Bajas, which means "Low Hills," and the term Sierra was given to the Azul Range -- "Sierra Azul." Hence, ground for an inference that the term "Sierra," in the parlance of that place and time, had become appropriated to the Azul Range, and that "Lomas Bajas," or Low Hills, was the common title of the Mining Range.

The L-i-n-d-e-r-o, it will be observed, crosses the Mining Ridge and goes to the Azul Mountains, here designated Sierra Azul.

2. Then as to the eastern boundary. In favor of the claim

Page 69 U. S. 672

of Larios, there of course was the L-i-n-d-e-r-o and its history.

On the other hand, and in favor of Berreyesa and of the line as settled by the decree below, the testimony of Mr. W. J. Lewis, an acute-minded and well educated surveyor, went to prove that the compass on the diseno of Berreyesa was erroneous to the extent of 45�, the north point being represented that much to the eastward; that the actual position of the loma was much more to the east, and near to the junction of the Alamitos and Seco than that diseno indicates; that standing at the junction of the creek, and looking south, the range of the Azul did present one peak at the west, Mount Umunhum, higher than any near it, and one peak at the east, Mount Bache, much higher than any near it, and higher even than Mount Umunhum. [Footnote 19] Two elevations, answering or not answering this character, are presented, it will be seen, on the diseno of Berreyesa. So in nature at the Mine, which is near the eastern end of the Mining Ridge, there is a peak known as the Mine Peak, and from that peak there is a continuous descent to the Alamitos Creek. On the diseno of Berreyesa, at the eastern edge of the Lomas Bajas, or Low Hills (meant confessedly to represent the Mining Ridge, in some part, or to some extent), there was or was not, at its east end, such an elevation and descent. Then it was shown by Mr. Lewis -- who had spent months here, and made surveys and observations of every natural feature of the region -- that while indicating different objects very well, the diseno was drawn without any reference to scale whatever, relative position being wholly misrepresented. The house of Larios, for example, which was in fact thirty feet wide, was made to cover a fifth of the width of the valley, there a mile wide.

Mr. Lewis accordingly thought that he could see in the diseno an intent to represent the three peaks, especially the

Page 69 U. S. 673

two former. [Footnote 20] Assuming this to be so, and comparing the diseno with nature, there would be a great error. In nature, less than one mile in length lay eastward of the division based on the L-i-n-d-e-r-o, and over four and a half miles lay to the westward, whereas the part of the ridge represented on Berreyesa's diseno as lying to the westward of the line would be but five-sixths of a mile, and all the rest was east, on Berreyesa's own land. Hence, the loma or lomita, not being shown in a position true to scale, an inference that Mount Umunhum -- an unmistakable object, and the Mining Peak another -- should govern the location in preference to the lomita, nearer the starting point and less definite, as this surveyor conceived. The difficulty was that by the terms of the grant, the line was to be drawn at the falda de la loma, which the interests of Larios interpreted "base of the hill." If the line could cross the hill, going over its "skirt" or "lap" to a perfectly ascertained point at the other side of the valley, a decree fixing the eastern line as Lewis fixed it could be supported. The case as to the meaning of "falda" was thus: one witness being Mr. Hopkins,

"keeper of the Spanish archives in the office of the Surveyor of the United States for California, well acquainted with the Spanish language and in the habit of translating documents,"

who had in fact made one translation of this grant.

"Q. You have translated the word 'falda' by the word 'skirt;' have you considered well the exact definition of the word 'falda,' and is it exactly expressed by the word used in your translation?"

"A. I have carefully examined the definition of the word 'falda' as laid down in the standard lexicons of the Spanish tongue. I have examined the word as used by ancient and modern writers of the Spanish language, and I can think of no word in the English language which more clearly or legitimately

Page 69 U. S. 674

expresses the meaning than the word 'skirt.' I arrive at this conclusion from the definitions that I find given to the word in the Spanish lexicons and from its use by celebrated Spanish writers."

"Q. In the sense in which you use the word 'skirt,' to what part of a hill or loma is it to be applied?"

"A. It is to be applied to the lower or inferior part of the hill, or loma."

"Q. Have you made any translation of the definition of the word 'falda' given in any lexicon? if yea, please produce that translation."

"A. I have made a translation of the definition of the word 'falda,' as laid down in the Royal Dictionary of the Spanish Academy, dedicated to Don Felipe V, and printed at Madrid in the year 1732. Here it is:"

" Falda. That part of the long dress from the waist down, as the skirt or blouse of women."

" 'Queen Mary promptly dismounted, and, raising the edges of her skirt (falda) and the sleeves of her dress, drew a hunting-knife from her belt, and with her own hands opened the stag.'"

" 'The great queen was riding on a small ass, with the boy-god (nino dios) in her lap (falda).'"

" Falda. It is very commonly applied to that which drags from the afterpart of a dress worn either by a person holding high office or as a symbol of sorrow by mourners accompanying a funeral."

" He carried the train (falda) of Mary, Queen of Scots, the bride of the Dauphin Francis."

" Falda. By allusion, or metaphorically, is called that part of the hill or mountain which falls or descends from the middle down. LAT. Montis Radix."

" 'They reached the skirt (falda) of a small hill. Naim was a small city situated on the skirt (falda) of Mount Hermon.'"

" Perrillo de falda (lap dog). The small pet dog, so called because women are so much attached to them that they usually keep them in their laps (faldas) that they may not hurt themselves."

" 'I wager that you do not know why Apelles painted Ceres, the goddess of corn, with a lap dog (parillo de faldas).'"

"Q. Please give such examples of the use of the word 'falda' by Spanish writers as occur to you, and give the translation into English of those passages in which the word is used. "

Page 69 U. S. 675

"A. The following I found some years ago:"

"The first is from Martin, a Spanish poet."

Iba congi endo flores

Y quard ando en la falda

Mi ninfa para hacer una Guirnalda,


The translation of which is:

"My love was gathering flowers, and keeping them in her lap (falda) to make a garden."

"The second is from Jose de Cadalso, a celebrated Spanish scholar and poet:"

Con pecho humilde y reverente paso

Llegue a la sacra falda del Parnaso;

Y como en sue nos vi que llamaban

Desde la sacra cumbre, y me alentaban

Ovidio y Taso, a cuyo docto influjo

Mi numen estos versos me produjo.

"The translation of which is:"

" With humble breast and reverent step I reached the sacred foot (falda) of Parnassus, and, as in dreams, heard calling me from the sacred summit, Ovid and Tasso, who inspired me, and under whose wise influence my muse produced these verses."

"The third is a translation made by Juan de Janrequi, I think in the sixteenth century, from an Italian play. The following is an explanation of these four lines:"

"A romantic young shepherd was very much enamored of a beautiful shepherdess, who, perhaps from a spirit of coquetry, treated him with scorn; the young man took the disappointment so much to heart that he madly threw himself from a neighboring precipice, and the lines of the poet are a description given by an old hermit of the condition and place in which he found the young man:"

" Yo me estaba junto a mi cueva, que vecina al valle, y casi al pie del gran col lado yace, do forma falda su ladera enhiesta."

"The translation of which is:"

" I was at my cave, which lies near the valley and almost at the foot of the great hill where its steep side forms a (falda) skirt."

"The fourth is from Jovellanos, a poet of the eighteenth century:"

De la Siniestra orrilla un bosque ombrio

Hasta la falda del vecino monte

Se extiende; tan ameno y delicioso

Que le hubiera jazgado el gentilisimo

Morada de algun dios, o a los misterios

De las Silvanas Driadas guadado.

Page 69 U. S. 676

"The translation of which is:"

" From the left shore shady wood extends as far as the skirt of the neighboring mountain, so pleasant and delicious that the pagan world might have devoted it as the dwelling of some God, or to the mysteries of the sylvan Dryads."

"The fifth is from a geological report made by Antonio del Castillo, one of the professors in the Mining College of Mexico, in relation to the quicksilver mine of Pedernal, and is as follows:"

" La loma del Durazo esta unida por la parte del sur a otros de la misma formacion que ella separadas por hondonadas o bajios de corta estension, y limitadas al oriente por el mismo arroyo que pasa por la falda norte de la primera."

"The translation of which is:"

" The hill of Durazo is united on the part of the south to others of the same formation with it, separated by ravines of short extent, and limited on the east by the same arroyo which flows by the northern skirt of the first."


"Q. Have you any reason for supposing that the Spanish dictionary mentioned by you -- the Royal Dictionary of the Spanish Academy, dedicated to Don Felipe V, and printed at Madrid in the year 1732 -- is the identical dictionary from which the native Californians obtained their definition of the word 'falda,' or any other words in use by them?"

"A. I have no reason for so supposing."

On the other hand, evidence from other poets, other dictionaries, and other prose writers tended to prove that if falda meant skirt, it meant the edge of the skirt, its extremity as well as its higher folds.

In addition to all this evidence on both sides, of geologists, surveyors, scholars &c., photography and landscape painting both were largely invoked for the cause of justice, and the judges of this Court being unable, of course, to visit the place, three thousand miles away, which the judge below had actually done, sworn representations, the artists' oaths accompanying their work were laid before this bench. To exhibit these photographs and landscapes as part of the "case"

Page 69 U. S. 677

is beyond a reporter's art, as attained to up to this day. The list below, if not giving to the reader an idea of the topography as it existed in nature, will give him some idea of the very special features of the case as it was exhibited in this Court, and bring excuse to the reporter if, without the reader's having them before him, the narrator has failed to present the "case" in its truest and clearest form; and with those impressions from it which, after all, may have influenced the decision. Here they are, photograph and landscape alike -- the landscapes without their colors:


Exhibit No. 1, Photographic View, taken near the junction of the two creeks, looking westerly.

Exhibit No. 2, Photographic View, taken one-quarter of a mile below the junction, looking southwesterly.

Exhibit No. 3, Photographic View of the eastern hill of the Lomita, taken near the junction of the two creeks.

Exhibit No. 4, Photographic View, showing part of the valley and Pueblo Hills.

Exhibit No. 5, Photographic View, showing continuation of valley and Pueblo Hills, and part of Mine Ridge.

Exhibit No. 6, Photographic View, taken near the hacienda, looking towards the southwest.

Exhibit No. 7, Photographic View, taken near the hacienda, looking towards the northeast.


Exhibit No. 1, Landscape View, showing Mine Ridge, a portion of the Pueblo Hills, and the valley between, looking towards the east.

Exhibit No. 2, Landscape View, showing Mine Ridge, a portion of the Pueblo Hills, and the valley between, looking to the west.

Exhibit No. 3, Landscape View, taken from the west bank of the Alamitos, south of the hacienda, looking southerly up the gorge through which the Alamitos flows.

Exhibit No. 4, Landscape View, taken from the same point as No. 3, and looking northerly down the gorge through which the Alamitos flows.

Exhibit No. 5, Landscape View, taken from the east bank of the Alamitos, half a mile above the hacienda, looking up the gorge.

Exhibit No. 6, Landscape View, taken from the south bank of the Arroyo Seco, a short distance above the junction of the two creeks, looking southwesterly.

Page 69 U. S. 678

On this long case the following questions, in effect, now came up for discussion:

1. Did any appeal lie from the "Survey Act?"

2. If so, had the United States, which filed no objections to the survey as made by the Surveyor General, nor took any appeal below, a right to ask here for a reversal or any modification of the decree?

3. After the two decrees of the district court itself and the two decisions made in this Court, was the matter of this eastern line open below for such action as was taken on it by the district court the last time?

4. As an original case and on its merits, what and where were the true east and south boundaries of the tract, the west being settled, and the north run for quantity?

Page 69 U. S. 704

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