# Gonzales v. United States (63 U.S. 161)

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## Separate Opinion

    Campbell
United States Supreme Court
63 U.S. 161
Gonzales v. United States
THIS was an appeal from the District Court of the United States for the northern district of California.
All the title papers are set forth in the opinion of the court.
It was argued by Mr. Hepburn, upon a brief filed by himself and Mr. Volney E. Howard, for the appellant, and by Mr. Stanton for the United States.
The counsel for the appellant said this claim will be found, on examination, to be one of the most meritorious that has ever been presented for confirmation.
The Government has never opposed it; yet, under the present decision, the claimant gains but little benefit from his title.
The land commissioners, in their opinion, say that it is a grant by metes and bounds, and that, consequently, no sobrante can result; but, in their decree, they limit the extent of the land from east to west to three-quarters of a league, a little more or less.
The District Court affirmed the decision of the commissioners.
The claimant contends that the land should be confirmed to the boundaries mentioned in the decree of concession, making him, in the language of the decree of concession, 'the owner of the land known by the name of San Antonio, or El Pescadero, bounded by the rancho of Antonio Buelna, the sierra, the coast, and the Arroyo del Butano,' without limitation as to quantity, there being none in the decree of concession.
The quantity of land mentioned in the grant was erroneously inserted, through a clerical error, as we will show hereafter.
But, even admitting that it was inserted correctly, it is insisted by the claimant that the quantity should be disregarded where all the boundaries are given in a grant, as in this case.
The naming of a quantity of land in a grant, and reservation of the surplus to the nation, does not prevent the title from passing to the grantee, if all the boundaries are given. A clause in the grant, naming quantity and reserving surplus, in such a case, is an unmeaning formula. The utmost effect that could be given to the clause would be to reserve the right to the Government, on proper proceedings, to divest the title as to the surplus; but, in the mean time, the title to the whole land is vested in the grantee.
This land is not claimed by any adverse claimant. The Government never interfered with Gonzales in any way.
It will be seen, by the testimony of Manuel Jimeno, that Gonzales had occupied the land from 1833. If the Government had the right to resume the ownership of the surplus, its non-action for so long a period raises a presumption of a relinquishment of the right.
The quantity named in the grant is a clerical error. It was taken from the marginal note on the map, written by some illiterate person, and which the court will perceive, by inspection of the traced copy in the record, is such as would readily mislead.
It describes the land as one league from north to south. We cannot make out the word which professes to give the distance from east to west.
The map was made as part of the petition of Gonzales to Figueroa for the land, and it was presented to Figueroa with the petition. Gonzales, in that petition, refers to the map, and says that the ranch delineated on it includes 'a square of about four leagues, extending from the coast to the sierra, and from the rancho of San Gregorio (rancho occupied by the citizen Antonio Buelna) to the rancho Punta de A no Nuevo,' and asks for the whole tract, without any limitation of quantity.
It may be remarked here that Gonzales states, in his petition to Figueroa, that he had a family of thirteen persons, and the grant recites that it is for his benefit and that of his family. He also states that he had five hundred head of cattle.
The rancho is pasture land. Four leagues was little enough to provide for Gonzales's family and the increase of his stock.
There can be no doubt the Governor would have granted him that quantity, or much more, if he had asked for quantity. The land had been abandoned by the mission of Santa Cruz, and it was a benefit to the country to have it occupied.
Witnesses were examined, by order of Figueroa, before he made the decree of concession. Salvio Pacheco says the rancho is one league to a league and a half from east to west. Manuel Larios says that it is two leagues from the beach to the hills.
We may presume that the marginal note had not then been written on the map, or, if written, it was not properly read by the clerk who made out the grant.
The decree of concession evidently intended to invest Gonzales with the title to the whole tract, and it calls upon the interested party again to 'present his title, that it may be revalidated.'
If the party is to get only the quantity named in the grant, he will be deprived by it, practically, of the greater part of his property.
The decree of concession gave him the whole tract. Does the grant, which was made by virtue of the decree, and in order to 'revalidate' it, take away the greater portion of the land given by the decree?
The grant refers to the map, to ascertain the land, and the map exhibits the natural objects which are its boundaries.
'When a deed of land describes the subject matter by monuments clearly defined, such as a river, a spring, a mountain, a marked tree, or other natural object, and courses, distances, and quantity, are likewise inserted, which disagree with the monuments, the description by monuments shall, in general, prevail; for it is more likely that a party purchasing or selling land should make mistakes in respect to course, distance, and quantity, than in respect to natural objects, which latter, from being mentioned in the deed, are presumed to have been examined at the time.
'The monuments which shall control course, distance, etc., under such circumstances, may be any objects which are visible and clearly ascertained, as lands of other individuals or their corners.'
4 Phillips on Evidence, Cowen and Hill's notes, page 548, and authorities there cited.
It is evident that the land commissioners thought that the extent of the land from east to west, as delineated on the map, was no more than three-quarters of a league, otherwise they would have confirmed the claim to a greater extent.
They have followed the phraseology of the grant, and added the words, 'a little more or less,' to the designation of quantity, and perhaps these words give the claimant the whole land; but as they would not enlarge the tract beyond three-quarters of a league, under the present ruling of those having charge of the making of surveys and the issuance of patents, a decision of this court is asked, to establish the rights of the claimant as to the extent of land to be confirmed to him.
Mr. Justice McLEAN delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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