Melville Fuller

“ In any view, whether treated upon the principles applicable to a voluntary grant or as a purchase and sale, appellants' contention that Don Elias and his parents took all the public lands north of Casita as one tract by metes and bounds could be sustained only on proof of a determination of such metes and bounds by actual survey and delivery of possession accordingly. ”

“ Navamuel was instructed to survey 7 1/2 sitios of the vacant public lands 'situated between the north boundary of the ranch of Casita and the west boundary of the mission of Tumacacori and Calabazas,' and to measure the land between the north boundary of one tract and the west boundary of another may be supposed to involve considerable difficulty. ”

“ It is certain that the officers had no authority and did not intend to sell 78,868 acres for the purchase price of 32,744 acres; that in all the proceedings the transaction was limited to 7 1/2 sitios; that Navamuel determined what was needed by Elias as a cattle breeder, made his survey, approved the appraisement, and published for bids at 'a better valuation' on that basis; and that the Mexican government has construed the grant in the same way in ordering a resurvey, and thereupon adjudicating the excess over 7 1/2 sitios. ”

“ However, it is said that the mission of Tumacacori and Calabazas lay north of these lands, and the surveyor general of Arizona was of opinion that the claim should bind the ranchos of Casita and Calabazas 'with the easterly and westerly lines so established as to include exactly seven and one-half square leagues and two caballerias.' The proceedings show that Navamuel understood that the sale was not to be of a particular tract for a sum in gross, but of a specific number of sitios at the upset price fixed by the appraisal of those sitios ”

“ Navamuel did not visit the western boundary, and the southwest corner as claimed seems on the evidence not to be where that corner should be according to the titulo. As to the northwest corner, Oury, in December, 1891, could find no place called 'Calaveras,' and no monument 200 cords west of the north cross monument; but as he did find an old monument of loose rock 470-odd cords west, at Calabazas pass, and because of Navamuel's reference to the Pajarito Mountains in that connection, he concluded to accept that monument as the northwest corner ”

“ And as, in our judgment, the expediente shows that what was directed to be appraised, what was appraised, what was directed to be sold, what was sold, what was paid for, and what purported to be granted was 7 1/2 sitios and 2 short caballerias, while the alleged preliminary survey indicated general boundaries containing over 18 sitios, we think, as the court of private land claims did, that the grant was of 7 1/2 sitios and 2 scant caballerias within exterior boundaries, and that location was a prerequisite to any action by the court. ”

“ The 7 1/2 sitios could undoubtedly have been located, juridical possession delivered, and monuments of stone and mortar put up, and the grantees would then have been limited to their metes and bounds thus ascertained; but the grantees did not do this, and, so long as these public lands remained in Mexico, were liable on resurvey to account for the excess over what they actually bought on such terms as the government imposed. ”

“ The measurement being effected, the parties went to the center of the land, and there the judge directed the grantee to enter into the possession, which he did, and gave evidence of the fact 'by pulling up grass and making demonstration as owner of the land.' Of the various steps thus taken, from the appointment of the day until the final act of delivery, a complete record was kept by the judge, and by him transmitted to the grantee, after being properly entered upon the 'book of possessions. ”

“ Grants previous to the cession, which have not been located, are by the terms of the latter treaty not to be respected or considered as obligatory, as matter of right, whatever the United States might see fit to do, as matter of grace, under particular circumstances. And grants which have not been located would seem manifestly to be grants of a specific quantity of land within exterior boundaries containing a larger quantity. This was a familiar class of Mexican grants, and is referred to by Mr. ”