within those boundaries, and refers to the map which clearly indicates the quantity-under all these circumstances, we must consider that the intention was to grant all the land included within the boundaries, notwithstanding that in a subsequent condition the quantity may be erroneously stated. That conditions applicable only to one species of grants were often asserted by mistake in grants of a different species is notorious. In this case the mention of two leagues as the extent of the granted land is, perhaps, owing to the fact that the clerk who drafted the document forgot that a tract two leagues broad by two wide contained four and not two square leagues. However this may be, we think it clear that in this case all the land within the boundaries was intended to be granted; and as there is no proof or suggestion that the land so included exceeds in extent the quantity testified to by the witnesses before the alcalde, that the claim should be confined to the tract as described in the grant and delineated on the map. (June Term, 1856.)

THE UNITED STATES, Appellants, vs. JONATHAN D. STEVENSON, et al., claiming the Rancho Medanos.-Claim for two leagues of land in Contra Costa county, confirmed by the Board, and appealed by the United States. The claim in this case is for a piece of land called "Medanos," embracing two square leagues," a little more or less." It was confirmed by the Board, and the cause has been submitted to this Court on appeal without argument, or the statement of any objection to its validity. The title paper is produced by the claimants, and its genuineness duly certified. The expediente from the archives not only shows that the preliminary proceedings were in due form, but that the grant was confirmed by the Departmental Assembly about six months after its date. It is also shown that the conditions were fully complied with. The delineation on the diseño appears to be rude and inexact, but the title itself describes the boundaries of the tract with some precision. In that document the land is mentioned as that known by the name of " Medanos," and bounded on the south by the land of citizen Noriega, on the north by that of citizen Salvio Pacheco, on the east by the river San Joaquin, and on the west by the "lomarias," or small hills. The third condition states the extent of the granted land to be two square leagues, a "little more or less." Some of the witnesses appear to have supposed that the land embraced within these boundaries would include a tract of far greater extent than that mentioned in the condition. But it is clear that they have confounded the "lomarias" mentioned in the grant with the range of mountains known as the Contra Costa hills, which lie at a considerable distance, and which would, if taken as the western boundary, not only include a tract of country of great extent, but also one or more intervening Ranchos. It would seem, however, that the "lomarias" spoken of are a range of low hills, and that the land included within these and the

to

other boundaries of the grant has about the extent mentioned in the grant. Such appears to have been the view taken of the case by the Board, and we see no reason for a different conclusion. The mesne conveyances appear be regular. Under the proofs offered, the claimant, Stevenson, is entitled to a confirmation of the part conveyed to him by the deed as reformed according to the intentions of the parties under the decree of the District Court of this State. A decree affirming the decision of the Board must be entered. (June Term, 1856.)

INOCENCIO ROMERO et al., claiming El Sobrante, Appellants, vs. THE UNITED STATES.-Claim for five leagues of land in Contra Costa county, rejected by the Board, and appealed by the United States. It appears from the expediente on file in the archives, that on the eighteenth day of January, 1844, the brothers Romero petitioned the Governor in the usual form for a grant of land, being a sobrante lying between the ranchos of Moraga, Pacheco and Welch. This petition was by a marginal order referred to the Honorable Secretary for his report. The Secretary referred the papers to the First Alcalde of San José, with directions to summon Moraga, Pacheco and Welch, hear their allegations, and return the papers to the office. On the first of February, 1844, the First Alcalde reports that the owners of the lands bounded by the tract have been confronted with the petitioners, and that the former are willing and desirous that the land be granted. He adds that it had come to his knowledge that one Francisco Soto claimed the tract some six or seven years ago, but as he had never used nor cultivated it, the petitioners appeared to him to be entitled to the favor they ask. On the fourth of February, 1844, Manuel Jimeno, the Secretary, reports to the Governor that, in view of the report of the First Alcalde, there would seem to be no obstacle to making the grant. On this report of the Secretary, the Governor makes the following order: "Let the Judge of the proper district take measurement of the unoccupied land that is claimed, in presence of the neighbors, and certify the result, so that it may be granted to the petitioners.-Micheltorena." On the twenty-first of March, 1844, the claimants addressed a petition to the Governor, representing that, owing to the absence of the owners of the neighboring lands, the Judge of the Pueblo of San José had been unable to execute the superior order, (above recited), and soliciting that his Excellency would grant the tract to them, "either provisionally, or in such way as he would deem fit," while there was yet time for planting, etc. On this petition Jimeno reports (March 23, 1844,) that the original order should be carried into effect as to the measurement of the land, and that "as soon as that was accomplished, Señor Romero can present himself with Señor Soto, who says he has a right to the same tract." The Governor thereupon made the following report: "Let everything be done agreeably to the foregoing report.-Micheltorena." The above

documents constitute the whole expediente on file in the archives. From the documents produced by the claimant from the files of the Alcalde's office, it appears that on the same day, March 23, 1844, Jimeno communicated to the Alcalde the order of the Governor that the Sobrante solicited by the Romeros should be measured, and that if it should be necessary a measurement of the adjoining ranchos should also be made with the understanding that those parties who should become" agraciados" should bear the expense. It is evident that up to the date of the last order of Micheltorena no grant of the land had issued. That pursuant to the recommendation of Jimeno, the Governor declined to make even a provisional grant as solicited, and that final action in the matter was deferred until a measurement should be made, and until Romero and Soto should present themselves. Jimeno does not seem to have finally adopted the opinion of the Alcalde that Soto had forfeited his rights to the land, for he recommends to the Governor, as we have seen, that the land should be measured without delay, and that then "Romero should present himself, joined with Señor Soto, who says he has a right to the same land." In this recommendation the Governor concurs. There is certainly nothing in these proceedings which indicate that the Governor had finally determined to grant the land, though it is evident that he regarded the application with favor; still less can any of the orders made by him be construed to import a present grant. On the contrary, it is clear that the Governor refuses to make even a provisional grant, but insists that a measurement shall first be made, and then tnat Romero and Soto shall appear before him, evidently with the view of determining the rights of the latter.

The subsequent proceedings, as shown by documents exhibited by the claimants, confirm this view. On the fifteenth of January, 1847, Romero and Garcia, the present claimants, appeared before John Burton, the Alcalde of San José, and executed a paper in the presence of the Alcalde and two witnesses, reciting a sale by Romero to Garcia of one-half of the land, and stipulating that both parties should remain subject to the final result, "if the Governor grant it in ownership." And if the contrary should be "the case, then Garcia should lose equally with Romero, without any right to reclaim the consideration paid." This paper is signed by the parties, the Alcalde and the witnesses. On the twenty-eighth of May, 1847, José Romero addressed a petition to John Burton, Alcalde of San José, representing that as early as 1844, an order from the former Governor had been sent to the Alcalde's Court requiring a measurement of the land called "Juntas;" that such measurement had not yet been made. He therefore solicits the Alcalde to give him a testimonial of the reports which in the year 1844 were sent to the Government, so that we can be granted said land." The Alcalde in a marginal order directs that the lands should be measured according to the original order of the Supreme Government.

In the margin of the order transmitted by Jimeno, under date of March 23, 1844, the Alcalde writes: "Be it done accordingly, on the ninth of April, 1847. The interested parties will proceed to take possession of the mentioned land according to the order of the Governor. I further order, that in case any bordering land-owner demand it, a measurement of his land be ordered. John Burton, J. P." It appears, moreover, that about two months before the date of their last petition, viz: on the thirty-first of March, 1847, José Romero had addressed a petition to the same Alcalde, representing that some years before he had solicited a piece of land in the Cañada de San Ramon, and bordering upon lands of Don M. Castro, and that his Excellency had ordered the lands of Castro to be measured, which had never been done. The petitioners further stated that they were two brothers, with a numerous family, and were without any piece of land whatever to raise cattle; they therefore begged the Alcalde to provide for them as soon as possible, that they might retain and locate their stock. The Alcalde on the fifth of April orders that the fulfillment of the superior order should be at once proceeded to. The entry in the marginal order transmitted by Jimeno was made on the Romeros' petition of the twenty-third of March, and not on that of the twenty-eighth of May, above referred to; for it directs the measurement to be proceeded to on the ninth of April. And, finally, on the twenty-seventh of December, 1847, K. H. Dimmick, then Alcalde, makes an order in which, after reciting that disputes as to the boundaries existed between the Romeros and Domingo Peralta, he directs that the boundaries be established and adjusted in the manner specified in the order of the Governor, dated twenty-third of March, 1844. I have stated the contents of these various documents with some particularity, because an attempt has been made since the rejection of the claim by the Board, to show by parol evidence that a final grant issued to the Romeros, which has been lost. We have seen that the last document in the expediente is the order of the Governor of the twenty-third of March, 1844, adopting Jimeno's recommendation that a measurement should be made before issuing the final grant, or even a provisional one, as solicited by Romero; and even then it does not seem that the grant was certainly to be made, for Romero and Soto were to "present themselves," evidently for the purpose of enabling the Governor to ascertain their respective rights. Nothing further seems to have been done, either by the government or the petitioners, until 1847. On the thirty-first of March of that year we find the Romeros representing to the Alcalde that the Governor had some years before ordered the land to be measured, which had not been done; and that they were without any piece of land whatever, and they beg the Alcalde to provide for them. The Alcalde thereupon directs that the superior order of March 23, 1844, be proceeded to. On the 28th of May, 1847, the Romeros again petition the Alcalde, representing that as early as 1844, the Governor