Samuel Nelson

“ Without pursuing the examination of the case further, we are satisfied that this survey and location by Von Schmidt of the eleven square leagues of land granted to Sutter, is in conformity with the decree and mandate of this court, and should have been accepted and confirmed by the court below. We do not say that it is entirely free from objections, and from our examination of the evidence, we are satisfied that no survey or location of the tract, under the circumstances attending and surrounding the case, could be made that would be free from objection. ”

“ The United States not objecting to the location south of the American River, contended that the eleven leagues could not be located in separate and distinct parcels, but should be located in one body, and in a compact form, and, therefore, that the nine leagues should be taken immediately adjoining the other two, and on the north of the American River, or that the two leagues should be selected from land adjoining the nine on Feather River. ”

“ The least rise from the first rains of much length in the winter, covers them with water. They are unfit for cultivation without draining. Within the exterior limits of the grant to Sutter, there is an immense tract of these tule lands, and it is to them that the reservation applies.'
The land upon which the city of Sacramento is built, is sometimes overflowed to the depth of several feet, but the water only remains a few days. The land is not tule or marsh land. ”

“ One answer is, that the original grant with the map accompanying it, thus located it, and which location, as we have seen, has been confirmed by the decree of this court. In the second place, the grant was made of the tract with general out-boundaries, excluding from it lands overflown by the swelling and currents of the rivers, in other words, tule or swamp. According to the evidence of both Vioget and Von Schmidt, the quantity for agricultural or fast land, to be contained in the grant, could not be obtained within the out-boundaries without making the location in two different parcels. ”

“ Sutter himself, as described by another pen, [1] was a native of Switzerland, who came to the Department of California about the year 1839; long, of course, befor the incorporation of that region with the United States. He was a man of a romantic cast of character, and having naturalized himself as a citizen of Mexico, formed, with the leave of its Government, a settlement near the junction of the Sacramento and American Rivers. In honor of his native country he designated it New Helvetia. ”

“ In 1852, Sutter presented to the Board of Commissioners, created by Congress under the act of March 3d, 1851, to ascertain and settle private land claims in California, a petition asking for the confirmation of a claim asserted by him to eleven square leagues of land under a grant alleged to have been issued to him on the 18th of June, 1841, by Juan B. Alvarado, then Governor of the Department of California. ”

“ These lands are regularly, periodically every winter, inundated. The low lands which are not tule lands, are not thus inundated every winter, but only occasionally-often at intervals of three and four years. The tule lands remain, too, inundated to a greater or less extent during the entire winter and spring-until the waters of the Sacramento and Feather Rivers subside to their lowest point. ”

“ III. The third principle which must be applied is, that, subject to the previous principles and rules of location, the eleven leagues of land confirmed to Sutter, must be located 'according to the laws of the United States;' that is, according to the executive regulations established by the General Land Office for the location of private land claims in California. ”

“ A large portion of the land included within this survey is overflowed land. The overflowed lands are excluded by the express words of the grant. The city of Sacramento is on ground thus excluded.
Mr. Edwards Woodruff, for intervenors Packard and Woodruff: The survey made by Von Schmidt, deputy surveyor, in 1859, which was approved by the Surveyor-General of California, February 18, 1860, and afterwards set aside by the District Court, was correct, and should be approved. ”