# The Fossat or Quicksilver Mine Case

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## Dissenting Opinion

    Clifford
United States Supreme Court
69 U.S. 649
The Fossat or Quicksilver Mine Case
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 Ca nada de los Capitancillos, or Valley of the Little Captains. 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 traveller 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 unrivalled 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.
Immediately south of, or behind this Mining Range, and detached from it, for the most part, by a steep, narrow, 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.
The northern limit of the valley we have said is the Pueblo Hills. The top of these is about 1000 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 1500 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 4000 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 water-shed, 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, it is joined by a mountain stream called the Arroyo Seco, a point which the reader must observe.
Nearly in the centre 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 Jos e 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. 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 Ca nada;' while he, Berreyesa, 'had absolutely nowhere to enlarge.' Larios, about the same time presented his petition, 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 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 dise no, 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 (rumbo al Sul LA FALDA de la loma), in the centre of the valley TO THE Sierra.'
Upon this dise no 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 centre 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 surplus which remains to the nation for the purposes which may best suit him.' The dise no submitted by Larios appears on the page opposite.
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, 8 'with all the lomas (hills), that pertain to the Ca nada 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 Ca nada de los Capitancillos, bounded on the north by the lomas bajas of the Pueblo San Jos e; 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 centre of the Ca nada 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 Ca nada.)
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 may be 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 of philology would come perhaps another like it: 'What meant in law the word Canada?' Los Capitancillos was a ca nada. 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 dise no 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 dise no 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 dise no seemed to place them? The difficulty may be comprehended by any reader who compares the map at p. 651, a map of the actual related topography, with the dise no 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. 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.
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 centre of the Ca nada, which is designated in the expedientes and grants of Justo Larios and Jos e 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 dise no or map in the aforesaid expediente of Jos e 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 Jos e Reyes Berreyesa, as expressed in the respective expedientes and grants of said Justo Larios and Jos e Reyes Berreyesa, and delineated by the dotted line on the said dise no or map in the expediente of Jos e 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 dise no or map in the expediente of Jos e Reyes Berreyesa, which expedientes, grants, and dise no, or map, are on file and in evidence in this case.'The northern boundary of the tract was declared to be that shown in the dise no 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 dise no 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. 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:

## Notes

* ↑ According to Mexican traditions, the valley was occupied in early days by two Indians of very diminutive stature, whose bravery, however, was so noted that each was the chief of his tribe. The name of 'Little Captains,' came from them.
* ↑ The reader must be particular to note, that both on this map and on the two more rough topographical sketches given in the case, the ordinary rule of position in regard to maps is reversed. The top of the map as the reader looks at it, or in the cases of the dise nos at pp. 654, 656, as he turns the book round to read what is on them, is the south; the bottom north; the right the west, and the left the east. The two rough Mexican dise nos were thus originally made; and conforming other maps to them has been found more convenient than to adopt the more usual method. The compass on the sketch at p. 654, shows the thing.
* ↑ The portion between these two ranges, marked on the map 'Ridge,' must be distinguished both from the Azul and the Mining Ridge or Range. It, as stated directly, is a low, connecting ridge.
* ↑ The meaning is a dry creek; this sort of arroyo being common in a country of hills and plains; sometimes filled with water from the mountains, and sometimes a mere stony bed or 'gulch.' In this case we have two arroyo secos; one of them, however, always designated as the 'arroyo seco on the side of Santa Clara.'
* ↑ Marked F. on the map at p. 651.
* ↑ Called indifferently 'loma' and 'lomita.'
* ↑ The dise no of Berreyesa is a very good one; better than forty-nine in fifty of the Mexican dise nos. That of Larios is less good, and justifies the title of 'daub' given by Grier, J., supra, p. 448, to Mexican dise nos in general. The arroyo, or stream called Alamitos, on the map, at p. 651, is on this called Capitancillos, as indeed it sometimes was; and the Arroyo Seco, on the side of Santa Clara, called simply 'Arroyo Seco,' is made the west boundary.
* ↑ The dise no is supra, at page 654.
* ↑ The quarter of a league conveyed to the company, is indicated on the map at page 651, in shade.
* ↑ 20 Howard, 413.
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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