Waterman v. Smith

13 Cal. 373 | Cal. | 1859

Field, J. delivered the opinion of the Court

Terry, C. J. and Baldwin, J. concurring.

This is an action of ejectment, for the recovery of a tract of land situated in the valley of Suisun, in the county of Solano. Both parties claim title under grants of the Mexican Governor of California, Juan B. Alvarado — the plaintiff under a grant issued to the Indian Chief, Francisco Solano, on the twenty-first of January, 1842, and the defendant under a grant issued to José Francisco Armijo, on the fourth of March, 1840. The grant to Solano is of land known by the name of Suisun, and covers four square leagues, within exterior limits embracing about eight leagues. The grant to Armijo is of land known as Tolenas, and covers three leagues, within limits embracing from twelve to twenty leagues. The maps referred to in both grants cover the land in controversy. The grant to Solano was presented to the Board of Land Commissioners for confirmation by Archibald A. Ritchie, who had become, by purchase, interested in the land granted; and the same was confirmed to him by the Boai’d in January, 1853, and subsequently by the United States District Court, in Eovember, 1853, and the decree of confirmation was affirmed on appeal by the Supremo Court of the United States, at its December Term, 1854. In July of the following year (1855) the four leagues specified in the grant were laid off and surveyed, under the directions of the Surveyor-General of the United States for California, and the survey was approved and authenticated by that officer. In conformity with this survey, a patent on behalf of the United States was issued to Ritchie, bearing date on the seventeenth of January, 1857, for four leagues of land, with the specific description of the official survey. This patent covers the land in suit. The grant to Armijo was likewise presented to the Board of Land Commissioners, and was rejected. On appeal to the District Court of the United States, the decision of the Board was reversed, and the claim under the grant confirmed. Prom the decision of the District Court the case is now pending, on appeal, in the Supreme Court of the United States.

Both grantees resided within the limits of their respective grants, and it is insisted bv the counsel of the defendant that the evidence establishes the fact that Armijo occupied and claimed three leagues of his tract, marked by metes and bounds, and that such occupation and claim ojierated as a segregation of that specific quantity, and the grantee’s right thereto could not be impaired by the subsequent grant to Solano, and the patent thereon to Ritchie.

We shall pass over any consideration of the question as to the application of the doctrine of relation, in virtue of which the plaintiffs contend that the grant to Solano, though subsequent in date to that to Armijo, relates back to the provisional decree of Vallejo, made in January, 1837, as immaterial to the determination of the case. ' We shall assume, also, for the purposes of the appeal, that Armijo occupied and claimed from the entire quantity comprehended within the map referred to in his grant, three specific leagues, and that these covered the land for the recoveiy of which the present suit is brought. We propose to place our decision upon grounds which will settle the controversy in the present case, and serve as a rule in controversies of a similar character; and for that purpose we shall disregard the minor points presented by the record, and confine ourselves principally to the questions which properly and necessarily arise from the claim asserted by the defendant, that the occupation and possession by Armijo, under his grant'of three leagues, by designated metes and bounds, was a location of that specific quantity within the exterior limits described in the grant, effectuating its segregation from the public domain, and attaching thereto the grant, and making the title of the grantee perfect against even a subsequent patent of the United States. Those questions relate to the nature of the titles conferred by the grants; to the authority by which location can be given to the specific quantity granted where that is less than the quantity contained within the exterior limits of the grants; to the effect of a patent of the United States in such cases, and who constitute the third persons mentioned in the 15th Section of the Act of Congress of March 8d, 1851, against whom the confirmation and patent are not conclusive.

The grants to Solano and Armijo both purport to convey the land designated therein—limiting its extent in the first case to four, in the other to three, leagues. Both are subject to similar conditions, with the exception of one peculiar to the grant to Armijo, against the molestation of the Indians there located and his immediate neighbors. Both provide for the free and exclusive enjoyment of the land by the grantees, and for such use and cultivation of it as they may think proper. Both require juridical possession to be given by a public officer of the vicinity, by whom the boundaries are to be designated. Both reserve any surplus over the quantity specified to the uses of the nation. Both are made liable to denouncement for failure to comply with their conditions, and both are subject to the approval of the .Departmental Assembly. The grant to Solano received such approval—the one to Armijo did not; but this fact does not impair the title which passed to the latter. The effect of the approval was only to discharge the grant to Solano from liability to defeasance by the Mexican Government, except for breach of its conditions subsequent. Both of the grantees acquired rights of property, which were not impaired at the date of the treaty of Guadalupe Hidalgo, and were protected by the guaranties of that instrument, and there is no law which authorized a forfeiture for any act or omission since. (Opinion of U. S. Supreme Court in the Sutter Case.)

The grants in question are similar in the title they convey to the one issued to Sutter, which was the subject of consideration in the case of Ferris v. Coover, (10 Cal. 589,) and, like that, passed an estate in the land embraced within their exterior boundaries, to the extent of the specified quantity, to be subsequently laid off by the government. They were issued in pursuance of the laws and regulations of Mexico for the colonization of’the territories, the object of which was the settlement of the vacant lands of the Republic; and for that purpose were made subject to the usual condition in such cases, of cultivation and occupancy. The first condition in the grant to Solano provides for his inclosure of the land with a reservation of the crossings, roads, and servitudes, and for his free and exclusive enjoyment of the same, with such use and cultivation as he may think proper, and requires the construction of a house and its inhabitation within one year. Its language is:

“ That he may inclose it without prejudice to the crossings, roads, and servitudes, and enjoy it freely and exclusively; making such use and cultivation of it as he may see fit, but within one year he shall build a house, and it shall be inhabited/'’ The second condition in the grant to Armijo is substantially the same; so were the second condition in the grant to Alvarado, (Fremont v. United States, 17 How. 545); the third condition in the grant to Reading, (Reading v. United States, 18 How. 2); and the first condition in the grant to Jimeno, (United States v. Larkin, 18 How. 559). Indeed, the same condition, substantially, was contained in all the colonization grants issued to individuals by the Mexican Government of California. Whilst it required the construction of a house, it conferred a right of entry upon the land, without which the requirement would have been incapable of fulfillment. Whilst it enforced the inhabitation of the house when constructed, it gave a right to the possession, use, and enjoyment, of the land, without which the inhabitation would have boon of little benefit to the grantee, and the policy of the government in the settlement of the country would have been entirely frustrated.

But though the grants passed a right of possession to the land, they conferred only a vested interest in the specific quantity designated, to be afterwards measured and laid off by the officers of the government. The conditions required a juridical posses sion to be given by the magistrate of the vicinage, who was to cause a survey of the specific quantity granted, to be made in accordance with the provisions of the law, the surplus being reserved for the use of the nation. The juridical possession was to accompany the official survey, and in this way alone could a segregation of the given quantity take place under the Mexican authorities, from the public domain. The officers by whom, and the manner in which, the measurement was to be made, were distinctly designated by the law. The grantee could not, for himself, make the segregation. “Ho person,” said the Mexican law, “ though his grant be older than others, can take possession for himself, or measure, or set limits, to his landed property, (propriedas territoriales,') unless it be done by judicial authority, with the citation of all those who bound upon him, (colindantes,) for whatever is done contrary to this will be null, of no validity or effect.” (Ordenanzas de Tierras and Aguas by Galvan, edition of 1855. As the grantee could not locate his land by his own survey, it would seem a necessary conclusion that he could not do so by mere occupation, and the assertion of a claim to any particular place.

The right to make the measurement and to give the juridical possession remained with the government, and could only be exercised by its officers. That right, like all other public rights, passed, with the transfer of the territory, to the government of the United States, and is now to be exercised in accordance with its laws. The estate, which vested in the grantees upon the execution of the grants, remains unaffected by the change of government j but the survey and measurement are to bo made—not in accordance with the laws of the old government, which were abrogated with its authority, but in accordance with the policy and laws of the new government. The right to survey and segregate the specific number of leagues granted to Solano and Armijo, respectively, under the legislation of Congress, belongs to the Executive Department, and cannot be exercised by the Courts of Justice. The Courts can ascertain and fix the position of boundaries which arc designated, but they cannot give boundaries to a specific quantity which has none and lies in a larger tract. To give precision and location to such specific quantity a survey by the department is essential. The authorities to this effect are numerous and decisive. In Stanford v. Taylor, (18 How. 409,) the plaintiff claimed title to the land in dispute under a Spanish concession of 1785, which was confirmed in 1811, and a survey ordered conformably to the possession. The concession described the land as lying along the River Des Peres, from the north to the south, and as bounded on one side by the lands of Louis Robert, and on the other by the domain of the Ring. The survey was not executed until 1834, when the Surveyor ordered the land to be located ivest of Robert’s tract. The plaintiff insisted that the land granted and confirmed adjoined Robert’s tract on the east, and that the location was so plainly apparent on the face of the concession as not to require a survey, and offered evidence to show that the possession of the confirmee was part of a tract of land east of Robert’s tract and adjoining it, and, if located there, would include the premises in controversy. The Court rejected the evidence, and allowed the defendant to introduce the official survey, and excluded evidence offered by the plaintiff to show that this was improperly made west of Robert’s tract instead of east of it, and instructed the jury that, as the parties agreed that the official survey of the confirmation under which the plaintiff claimed did not include the premises in suit, they ought to find for the defendant. In considering the exceptions taken to the ruling and instructions, Catron, J. in delivering the opinion of the Court, said: “ The law is settled, that where there is a specific tract of land confirmed according to ascertained boundaries, the confirmee takes a title on which ho may sue in ejectment. The case of Bissell v. Penrose, (8 How. 817,) lays down the true rule.

“ But where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed and severed from the public domain and the lands of others, then it is not open to controversy that the title attaches to no land; nor has a Court of Justice any authority in law to ascertain and establish its boundaries, this being reserved to the Executive Department. The case of West v. Cochran, (17 How. 403,) need only be referred to as settling this point. And the question here is, whether the concession to Perry (the confirmee) is indefinite and vague, and subject to be located at different places.” And, after considering the description, the Court concluded that the uncertainty of the outboundary was too manifest to require discussion to show that a public survey was necessary to attach the concession to any land.

In Ledoux v. Black, (18 How. 475,) the Court, in speaking of the Act of Congress of 1820, confirming the plaintiff’s claim, held that the Act did not tend to locate the claim and sever the land from the public domain, and that that could only be done by a public survey.

In Willot v. Sanford, (19 How. 81,) the defendants derived title under one Disonet, whose claim was confirmed by Act of Congress, in 1816. The land was surveyed in 1817, by authority of the United States, and a patent was issued in 1850. There was a conflict between this survey and the survey of the claim upon which the plaintiff relied. The Circuit Court instructed the jury that the sui’vey and patent under which the defendant claimed were not conclusive evidence that the land they embraced was correctly located and surveyed according to the confirmation ; and if they believed that the land sued for was not within the confirmation of the legal representatives of Disonet, although it might be within the survey and patent, then the survey and patent would not protect the defendants; but the Supreme Court held that Courts of Justice had no authority to disregard surveys and patents when dealing with them in actions of ejectment, and reversed the judgment of the Court below. (See, also, Bissell v. Penrose, 8 How. 317; West v. Cochran, 17 Id. 413 ; Cooper v. Roberts, 18 Id. 173; Bryan v. Forsyth, 19 Id. 334; Balance v. Papin, 19 Id. 343.)

The matter of surveys of floating grants belongs, then, to the Executive Department of government, under the legislation of Congress on the subject of the public lands. With such surveys the Courts of Justice have nothing to do. Whether in justice to the claimants the location should have been different from the official survey is none of their concern. That belongs to a department of government whose action is not subject to review by the Judiciary. The Courts, it is true, must determine whether prior rights of third parties have been interfered with by such survey and the patent following thereon, but they cannot correct the survey or patent and locate the land where, in their opinion, it ought originally to have been made.

The case of Fremont v. The United States, (17 How. 542,) is in point, as to the estate which passed under tho grants to Solano and Armijo, and tho authority by which precision and location are to be given to the specific quantity granted. In that case, the grant to Alvarado was for ten leagues, within a tract of much greater extent, and the Court held that as between the government and tho grantee, the latter had a vested interest in the quantity of land mentioned in the grant. “The right to so much land,” said the Chief Justice, in delivering the opinion, “to be afterwards laid off, by official authority, in the territory described, passed from tho government to him by the execution of the instrument granting it.” And in illustration of the principle asserted, tho Court cited the case of Rutherford v. Greene's Heirs, reported in 2 Wheat. 196, which arose upon an Act of the State of North Carolina, of 1782, providing that twenty-five thousand acres of land should be allotted to General Greene and his heirs, within a tract reserved for tho use of the army, to be laid off by Commissioners appointed therefor. Tho Commissioners, in pursuance of the Act, allotted the twenty-five thousand acres, and caused the tract to be surveyed and returned to the proper office, and the question upon which the case turned, related to the validity of the title of General Greene and the date at which it commenced. The Court held the general gift of twenty-five thousand acres, lying in the territory reserved, became, by the survey, a particular gift of that quantity within the survey, and concluded a full examination of the title by saying that it was the clear and unanimous opinion of the Court, “that the Act of 1782 vested a title in General Greene to twenty-five thousand aeres of land, to be laid off within the boundaries allotted to the officers and soldiers, and that the survey made in pursuance of that Act, and returned March 3, 1783, gave precision to that title, and attached it to the land surveyed."

The Court, in the Fremont case, observes, in reference to this case of Rutherford v. Greene’s Heirs, that “it recognizes as a general principle of justice and municipal law, that such a grant, for a certain quantity of land by the government, to be afterwards surveyed and laid off within a certain territory, vests in the grantee a present and immediate interest. In the language of the Court, the general gift becomes a particular gift, when the survey is made; and when this doctrine has been asserted in this Court, upon the general principles which Courts of Justice apply to such grants from the public to an individual, good faith requires that the same doctrine should be applied to grants made by the Mexican Government, where a controversy arises between the United States and the Mexican grantee.” And, as to the authority by which the survey was to be made, the'Court holds this language: “Under the Mexican Government, the survey was to be made or approved by the officer of the government, and the party was not at liberty to give what form he pleased to the grant. This precaution was necessary, in order to prevent the party from giving it such a form as would be inconvenient to the adjoining public domain, and impair its value. The right which the Mexican Government reserved to control this survey passed, with all other public rights, to the United States, and the survey must now be made under the authority of the United States, and in the form and divisions prescribed by law for surveys in California, embracing the entire grant in one tract.”

The authorities cited are conclusive of the questions we have been considering. Following them, we must hold that the grants to Solano and Armijo, passed a present and immediate interest in the quanta of land specificalty designated in their respective grants, to be afterwards surve3Ted and laid off within the exterior limits of the. general tracts by the government; that such survey could only be made under the former government, by its officers, and could not be made by the grantees themselves; that the right of survey passed, with other public rights, to the government of the United States, and is to be exercised in pursuance of its policy, and in conformity with its laws; that by its legislation, the subject of surveys is intrusted to the Executive Department; that the location of confirmed grants, when the quantity granted is without specific boundaries, lying within a larger tract, rests exclusively with such department, and cannot be reviewed or corrected by the Judiciary, but is binding and conclusive upon it in actions of ejectment, except only, when the patent issued thereon conflicts with prior rights of third parties, and then its inconelusiveness is maintained only so far as may be necessary for the protection of such prior rights.

The learned counsel for the defendant has presented with great force the injustice which may follow from holding that the government can compel a grantee to abandon that part of the tract embraced in the exterior limits of his grant, upon which he has settled and made his improvements, and to take some other part-; but his observations should be addressed to the officers of government, under whose supervision and control the survey and location are placed. To their sense of justice the appeal is to be made, and with them the observations would be entitled to the highest consideration. The Courts of the country possess no authority to act upon them. The right to measure and set apart the specific quantity was not loft to the grantee, as we have observed, under the Mexican Government, nor is it permitted under our own. Occupation and cultivation could have no greater effect than á private survey. They were without binding effect upon the former government, and are equally inoperative under the new. In Smith v. The United States, (10 Peters, 335,) the Court said: “The laws of the United States give no authority to an individual to survey his grant or claim to lands; he may mark lines to designate the extent and bounds of his claim, but he can acquire no rights thereby. The only effect which we can give to this private survey is to consider it as a selection by the petitioner of that piece of land, as a part of what he was entitled to locate, in virtue of his general grant.”

In United States v. Hanson, (16 Peters, 199,) a private survey was considered and rejected, as being of no force or validity. In United States v. King, (3 How. 785,) the Court rejected a survey made by the officer of the government after his authority had ceased. In Les Bois v. Bramell, (4 How. 457,) in speaking of a survey of one Mackay, the Court said it “ was a private one, made at the instance of the inhabitants of St. Louis, and was not binding on the rights of any one;” and in Mackay v. Dillon, (4 How. 447,) of the same survey: “It was in its nature a private survey, not binding on the United States.” In Glenn v. The United States, (13 How. 256,) in referring to surveys offered in evidence, the Court said: “The surveys produced to us are private ones, and of no value in support of the claim.”

The location of the specific quantity may be made by a survey of such quantity, or by grants with specific boundaries of such parts of the general tract as will reduce it to such specific quantity. Either course will operate to give precision to the "claim of the grantee. So long as there remains within the general tract sufficient land to satisfy the quantity specified in his grant, the grantee is without remedy. To this effect is the language of Mr. Chief Justice Taney, in the Fremont case. “It is true,” ho says, “ that if any other person within the limits where the quantity granted to Alvarado was to be located, had afterwards obtained a grant from the government, by specific boundaries, before Alvarado had made his survey, the title of the latter grantee could not be impaired by any subsequent survey of Alvarado. As between the individual claimants from the government, the title of the party who had obtained a grant for the specific land, would be the superior and better one; for by the general grant to Alvarado, the government did not bind itself to make no other grant within the territory described, until after he had made his survey.” (17 How. 558.)

To the same effect is the language of the Supreme Court of Louisiana, in Lott v. Prudhomme, (3 Rob. 293,) cited in the opinion rendered in Ledoux v. Black, by the Supreme Court of the United States.' “We then held,” referring to the previous adjudication, “ that when the boundaries of a confirmed claim are vague and uncertain, and are to bo fixed by the operations of the survejdng department, or such confirmation is only the recognition of a pre-existing right or claim, and before the survey and location the government sells a part of the land not necessarily embraced within the tract confirmed, the» title of the purchaser will prevail.”

This view disposes of the questions raised upon the award between Vallejo, the vendor of Ritchie, and Armijo, made in August, 1847. We are of opinion that the correct construction of the award makes the ridge and not the stream the dividing line between the two claims; but if we admit, for the purposes of the argument, that Suisun Crook was intended by the parties, it is difficult to perceive how this fact can avail the defense. Until the action of the government, whilst the claimants rested only on their grants, the award would have been conclusive in any controversies between them. But the government having wisely, or otherwise, issued a patent to Ritchie of a portion of the land included in tho general tract designated in the grant to Armijo, (assuming this.to he tho fact—and we do so only for the argument,) it does not lie in the mouth of tho latter to complain, there still remaining of such general tract more than sufficient to satisfy the specific quantity granted to him. Tho award could not bind the government, or control the effect of its patent. It was at most only effective as to tlie lines of the exterior limits of the general tracts claimed by tho grantees. If the patentee accepted the land described in his patent as answering his claim, it is not perceived how any other persons can complain, even if a portion of the land thus taken was without tho boundaries of his original claim.

The limitation of quantity was a controlling condition of the grants in question, and the delivery of juridical possession was an essential ceremony, under the government of Mexico, to perfect the title of the grantees to tho specific quantity designated. This was expressly held in tho case of The United States v. Fossat, (20 How. 426.) Until such possession, which was accompanied by a survey, the title of the parties attached to no definite portion of the tract. There is no evidence in the record that such juridical possession was given under the former government to either Solano or Armijo, although in the opinion of. the Supreme Court of the United States, in tho Ritchie Gase, (17 How. 537,) it is said that the grantee, Solano, was put in juridical possession in conformity with the conditions of his grant. If this were tho fact, it docs not appear in the transcript before ns, and the rights of the parties are treated as though no such fact existed. The right, then, which the Mexican Government reserved to itself to control the location, having passed to the government of the United States, the duty to exercise such right devolved upon the latter. This duty was discharged by the survey following tho final confirmation, and from that time the title of the parties claiming under Solano became perfect. On the other hand, the title under the grant to Armijo, did not attach to any three specific leagues; it constituted only an interest in such quantity, to be afterwards laid off by competent authority. Such general interest—not attached to the land in controversy, but, by the action of the officers of government, excluded from it—cannot be set up as a defense to the claim of plaintiffs. The patent is conclusive evidence of the right of the patentee to the land described therein—not only as between himself and the United Slates, but as between himself and a third person, who has not a superior title from a source of paramount proprietorship. The patent was not necessary to invest Eitchie with the title, as his title existed at the cession of the territory, and the only act to render it perfect to a defined and particular tract, was an official segregation. The title was recognized by the decree of final confirmation, and the approved survey attached it to the specific land. The essential and sub-. stantive acts under the law of 1851, were the confirmation and survey. The patent in such cases is only evidence^of the preexisting title made perfect by these acts. Upon the'-original grant, final confirmation, and approved survey, the plain tiffss might have relied, without reference to the patent. The survey following the final confirmation was made and approved in Jnly,,1855; Eitchie died in July, 1856, and the patent bears date in January, 1857. At the date of the survey every substantive, act required for the vesting of a perfect title had been performed. The subsequent issuance of the patent only involved duties of a mere ministerial character, and by a just application of the doctrine of relation, the patent must be regarded as if it. had received the signature of the President at the completion’ of the segregation of the four leagues. In Landes v. Brant, (10 How. 370,) the Supreme Court of the United States held that a confirmation made in 1811, and a patent issued in 1845, related to the first act nocessaiy to complete the title, that of filing the claim in 1805, and that intermediate conveyances made by the confirmee, or by the Sheriff in his behalf, of a day after the first substantial act, were covered by the legal title, and passed that title to the alienee. In that case Glamorgan, the patentee, had died in 1814, and the Court held that according to the common law the patent was void for want of a grantee, but that this defect was obviated by the Act of Congress of May 20, 1836, declaring: “ That in all cases where patents for public lands have been, or may hereafter be issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to, and become vested in, the heirs, devisees, or assigns, of such deceased patentee, as if the patent had issued to the deceased person during life.” This law, the defendants contend, does not aid the patent to Ritchie, as the patent is not for public lands. It may be true that the land embraced in the patent is not in the strict meaning of the term public, but we think it was the intention of the Act to cover all cases where any rights belonging to the United States existed in lands which could bo relinquished by patent, even though an interest in the same was also held by the patentee himself. The United States possessed the right to make the location of the four leagues in any part of the general tract they thought proper. By their act the identical land patented might have .been reserved as a part of the public domain—and there was, therefore, such a public interest possessed in the land as to include the latter within the spirit of the Act of Congress in question. We think the objection untenable, and that whatever rights could have passed to Ritchie by the patent, had he been living at the date of its issuance, inured to, and became vested in, his heirs or assigns, represented by the plaintiffs in this action.

The third persons against whose interests by the 15th Section of the Act of 1851, the final confirmation and patent are not conclusive, are those whose title is at the time such as to enable them to resist successfully, any action of the government in respect to it. Parties holding claims which may be located without the boundaries of the patent, and still within the limits of the general tract designated in the grants to them, do not constitute such third persons, nor do parties who hold claims only upon the bounty of the government, nor do intruders, nor even settlers, having certificates of sale, unless the same ante-date the presentation of the claim of the patentee to the Board of Land Commissioners for California, to which period the patent takes effect by relation. The interests of the third persons, intended by the Act, would have been as effectually protected without its provisions, as they are now by them. The section in question is only a legislative recognition of a principle of law and justice, applicable to all grants.

From the conclusions to which we have arrived, after the most mature consideration, it is clear that the plaintiffs were entitled to recover upon the facts conceded by the record, and that the first, third, sixth, seventh, eighth and ninth, instructions, requested by the plaintiffs, were proper, and should have been given, and the Court below erred in refusing them. The instructions requested and refused, are as follows: 1. That, if the jury believe, from the evidence, that the Suisun and Tolenas grants embrace, within their exterior boundaries, a much larger quantity of land than called for by both said grants, and that neither of said grants was located or segregated under the Mexican Government, and that the Suisun grant has, under the United States Government, been finally surveyed, and located, and patented; but that the Tolenas grant has not been finally confirmed and located by an officer, or under the authority of the United States; that, in such case, the location and patent of the Suisun Rancho, made and granted by the United States, must prevail in this action, and a verdict should be rendered in accordance with this instruction.

3. “The location of land granted by the Mexican nation, in pursuance of the colonization law of Mexico of 1824, and the regulations of 1828, belonged to, and was to be made by, such government; and whenever such location was not made under the Mexican Government, the right to make it passed to the United States, under the treaty of Guadalupe Hidalgo.”

6. “That in an action of ejectment by the person or persons entitled under a patent of the United States, against one in possession of any portion of such land, adverse to such patent, and the title whereon the same is predicated, and claiming to hold under a Mexican grant which was not surveyed or located by metes and bounds, or juridical possession under the Mexican Government, the defendant so claiming to hold adversely, as above mentioned, cannot interpose such unlocated grant, as a title jjaramount for the land described in said patent.”

7. “That the patent in evidence by plaintiffs is conclusive as against the defendant, unless there is evidence that the defendant has a title superior to the title by said patent to the land in controversy, under a confirmed Spanish or Mexican grant, located under the Mexican Government, or under the United States Government.”

8. “ That if the jury believe, from the evidence, that the Sui-sun grant and Tolenas grant lie contiguous to and adjoining each other, and that there is embraced within the deseño of the Tolenas grant and the land therein described, a. quantity of land outside of the land described in the patent of the United States to Archibald A Ritchie, greatly exceeding three leagues of land; that, in such case, the said Tolenas grant cannot bo interposed and set up as a defense by defendant, without evidence of a specific location of three leagues granted to Armijo, by authority of the government of Mexico or of the United States; and showing that such last mentioned location embraces the land in controversy.”

9. “The grant to Armijo does not invest him, or those claiming under him, with a title to any specific three leagues of land. If it is a grant of three leagues within a much larger area, then it is, in legal effect, a grant of land uncertain in its location, to be afterwards surveyed off to him by the government; and until such a survey on the part of the government, designating the three leagues of land granted to Armijo, he, or those claiming under him, have no right or interest which can be alleged in resistance to the right vested in Ritchie, or those claiming under him, by the patent to Ritchie, and this is true, although the land in controversy in this action is embraced within the exterior limits of the larger area, within which the three leagues granted to Armijo are to be located.”

It is unnecessary to consider .any other of the instructions given or refused, or points made by the Appellants. The judgment must be reversed, and the cause remanded for a new trial.

Ordered accordingly.