SUPREME COURT OF THE UNITEI STATES. No8.. THE UNITED STATES, AP'ELLANTS, vs. JOHN A. SUTtER. APPEAL FROM THE DISTRICT COURT U. S. FOR THE NORTHERN DISTRICT OF' CALIFORNIA. GOVERNMENT PRINTING OFFICE. SUPREME COURT OF THE UNITED STATES. No. 258. THE UNITED STATES, APPELLANTS, VS. JOHN A. SUTTER. APPEAL FROM THE DISTRICT COURT U. S. FOR THE NORTHERN DISTRICT OF CALIFORNIA. INDEX. Origina. Print, Petition............................................................ 6 Petition.................................................... --- 9 8 Deposition of M. Castanada....................................... 13 10 Manuel Jimeno -......,,....-...................... 15 12 John Bidwell....1............................ 16 13 John J. Vioget............-...........-............. 18 14 Sam'l J. Hensley..................................... 20 16 Francisco Arce....- -......-2..............~.......~..~ 24 19 Antonio Sunot..........................-.., 25 19 Gilbert A. Grant...................................... 28 22 John S. Fowler......................................... 29 23 W. E. P. Hartnell........................................ 31 24 Franklin Bates. —.-.. -...............-............ 32 25 Victor Prudon................................ 34 27 P. B. Reading.............................. 36 28 Sam'l Brannan..................-............. 37 30 P. B. Reading. —......-...... —-......-... —.. 41 32 J. J. Voiget —................................- ---. 43 34 R. B. Buchannan.. —.-.. —-....-...-..-.... —. —.....-. 44 35 John S. Fowler...-.....-. -....... —... — ---. - —.- —. 46 36 J. D. Marks..................................... 50 39 Abner Bryan-..... -.................................. 51 46 H. E. Robinson........-.............................. 55 44 John Bidwell...................... 5.... 58 46 Sam'l Kyburz.... -.-.......-...-..-..... ——. 68 54 John A. Sutter.......................-............. 70 56 Joseph Clough......................................... 72 57 Jacob P. Leese -......... —-.- - -...-.... 73 5S Abner Bryan... -.............-................-..... 75 60 Henry L. Ford........................................ 77 61 Juan B. Alvarado.-......-.....-..-.............., —----- 82 66 Map --...................... —- ------------—. 86 69 Deposition of John J. Vioget ---- -.. —-... —. —-.. —. —--. 86 69 ii INDEX. Original. Prinl, Espediente, certified copy from the office of the surveyor general............ 90 72 A, P. L., exhibit to deposition of Juan B. Alvarado, March 15, 1855......... 90 72 Two maps. ——..... —-. —-. —--—. —-. —--—. —---------—..- 90 72 Title and translation of A, P. L exhibits to the deposition of Henry L. Ford.. 94 75 Exhibit "0," espediente of Wm. A. Leidesdorff -- ----- ----------. —- 95 76 Map..-.. ——. —-----. —.. —-------—.. —- --------- —... —....- 98 78 Translation of espediente "A" —----- -—.. ----—, - -—.. —---------- 98 79 Title —---------—. —----—. —---------—...-.. --------------- 100 80 Translation of expediente "C". ——... ——.... ---------------- 101 81 Translation of exhibit 0 -—. —-—. —-—. —-----—. —--—..-. —-—...~ 102 82 W, annexed to the deposition of Joseph Clough, taken before the board, July 18,1854 —----------------- ------ --.... — - 105 84 Translati0o of W, annexed to the deposition of Jos. Clough ---. —-- -- - 107 8 Deed of John A. Sutter to John A. Sutter,jr. ----------- -- 109 88 Deed from John A. Sutter, jr., to John A. Sutter -------—. —---------...... 112 90 John A. Sutter and wife to John Fowler et al., " X Y Z," No. 2............. 115 93 John A. Sutter and wife to John S. Fowler, &c., deed, "X Y Z," No. 1 —-—. 119 96 John A. Sutter to Elias Grimes, &c., Exhibit " A A" to deposition of Sam'l J. Hensley, in case No. 683 -------------------------------------------- 123 99 Motion and affat. of J. H. Stover to intervene ---------------------------- 124 100 Opinion and decision of the board on the motion to intervene ------—... — 127 102 Motion. —-.. -------------------------- -------------—. —-. 132 105 Affidavit of John A. Sutter. --------- -~~.~~~, 132 106 Motion to amend petition - - -... —-. --. —-—. -..-..... —---. —- 132 106 Motion to transfer case to another position on the docket ------ ------------ 133 106 Order to withdraw petition ---------—... —--—. —.-.. —. —-.-. —....- 133 107 Notice for motion to intervene. —--------- --—.-........ —-.- 133 107 Objections of U. S. law agent~ — -~~~~~~ --------------------- 133 107 Stipulation - ------- ---- ---------- 135 109 Stipulation -----------------------------—. 136 109 Map —------ ---------------- ---------------- -- 136 109 Opinion of board, by Commissioner Thompson. --— * —----—. —--------- 137 109 Decree -----------------—..-.... —. 175 135 Order —------—... —----------- -------------—. —- ---. -- 176 136 Motion of U. S., law agent, (asso.) -------- ------------------ 176 136 Certificate of the secretary of the board ----—... —----—........ —-. 177 136 Notice of appeal in case No. 92 —... —-......- 179 137 Petition —..-.-. —. —. —.. ——. —------------- -. 179 137 Answer ~~~~~~~... —.. -~ —--—. 180 138 Deposition of Hannah Jane Hopper - -- ------- --- -- --- 181 138 Copy of potice -------------------------—..... — 181 139 Deposition of Tod Robinson-.....-.. —. —-----—.. ——.. —---- --—... 182 139 Win. Mace ------------------- 184 141 Examination of Hannah Jane Hopper --------------- -..... 187 143 Deposition of James A. Fox.-. —---------—. —------------—. —-—... 190 145 Samuel Norris -~~~~~~~~~~-. —----- --—. 192 147 Eli Goodale -------------—.. —-. —-...- 193 148 Examination of Samuel Norris........ -................................ 197 151 INDEX. 11i Original. Print. Examination of Eli Goodale..-.............................. 200 153 Deposition of C. M. Cornell........................................... 201 154 John Bigler...................................... 203 155 F. S. Lardner...................................... 207 158 Exhibit A-G. P. J.................. —....- -.......,-,... 210 160 Dunlap's authority to act.............................................. 211 161 Deposition of John Bidwell.......................................... 213 162 Henry A. Caulfield...................................... 219 166 James McClatchy. -..................................... 220 167 James M. Sandford...................................... 225 169 R. D. Ferguson..................................... 235 176 Charles Brockway-................................ 239 179 George R. Nesbit..............,................-.. 246 183 Thomas J. Hall.......................................... 247 184 George W. Foster....................................... 255 189 Samuel Norris..................-..................... 261 193 John Prentice.......................................... 262 194 Charles W. Hoyt......................................... 264 195 John F. Madden........................................ 267 197 Jesse Merrill............................................ 269 199 James C. Zabriskie............................. 271 201 Translation of grant C, exhibit A -. - -272 202 Stipulation of counsel. —........................................... 280 208 Copy of expediente relative to "Nemshas". --.......................... 281 208 Map -----............. —--—. 282 210 Copy of grant, certificates, map, &c., in relation to "Jimeno Rancho"..... 284 211 Map...................... 286 213 Letter in relation to petition for land on the San Yygnacio river, and translation. —..................... 287 214 Copy of grant to' Rio de los Molinos," approval, and map.-.- - -. 289 216 Map -. -........... 290 217 "C," letter from Vallejo to Micheltorena -........-...., 291 218 Translation of C"........................ 294 220 E," letter to Diego Forbe - —. —----- --—,. —... -_ 296 221 Translation of "' 1. 300 224 G," communi:'atiron from Slutter to governor. —........ —.-.... 302 226 Translation of G-' "-..,....-_.............................. 305 228 "I," letter f'.Aj M ictheitorenat to J A Sitter..........- -.. 308 230 Translation ( I.....,......... —.. 310 231 "K," letter -.u ri aiej t.G, v Al r:o-.....312 233 Translation -(: (...... _-.3.t3 234 Brief by Joh. - -:.. 316 235 Brief on the.:.. a, 351 258 Decree.... 363 265 Order granti-.:...........-....-.. 365 266 Clerk's cer'...- -........... -,,. 365 267 Proceedings ~;;. -.-;;........... 1 275 I Transcript of the proceedings in case No. 92-John A. Sutter, claimant, vs, The United States, defendant-for the place named "New Relvatia." OFFICE OF THE BOARD OF COMMISSIONERS TO ASCERTAIN AND SETTLE THE PRIVATE LAND CLAIMS IN THE STATE OF CAL'A. Be it remembered that on this eighth day of March, anno Domini one thousand eight hundred and fifty-two, before the commissioners to ascertain and settle the private land claims in the State of Califor, nia, sitting as a board in the city of San Francisco, in the State aforesaid, in the United States of America, the following proceedings were had, to wit: The petition of John A. Sutter, for the place named "New Helvetia," was presented, and ordered to be filed and docketed with No. 92, and is as follows, to wit: (Vide page 9 of this transcript.) Upon which petition the following subsequent proceedings were had in their chronological order, to wit: SAN FRANCISCO, March 19th, 1852. In case No. 92, John A. Sutter, for the place named "New Helvetia," the deposition of Manuel Jimeno, a witness in behalf of the claimants, taken before Commissioner Hiland Hall, was filed. (Vide page 17 of this transcript.) SAN FRANCISCO, March 30th, 1852. In the same case the deposition of Juan Castafieda, a witness in behalf of the claimant, taken before Commissioner Harry J. Thornton, was filed. (Vide page 15 of this transcript.) SAN FRANCISCO, April 5th, 1852. In the same case the deposition of Francisco Arce, a witness in behalf of the claimant, taken before Commissioner Hiland Hall,'was filed. (Vide page 27 of this transcript.) SAN FRANCISCO, April 8th, 1852. In the same case the deposition of John Bidwell, a witness in behalf of the claimant, taken before Commissioner Hiland Hill, was filed. (Vide page 19 of this transcript.) LREc. CCLViii, D. T. 1862.]~1 2 The United States vs. Sutter. 2 SAN FRANCISCO, June 4th, 1852. In the same case the deposition of John J. Viojet, a witness in behalf of the claimant, taken before Commissioner Harry J. Thornton, was filed. (Vide page 21 of this transcript.) SAN FRANCISCO, January 19th, 1853. In the same case the deposition of Antonio Sunol, a witness in behalf of the claimant, taken before Commissioner Hiland Hall, was filed. (Vide page 28 of this transcript.) SAN FRANCISco, February 3d, 1853. In the same case the deposition of Samuel J. Hensley, a witness in behalf of the claimant, taken before Commissioner Harry J. Thornton, was filed. (Vide page 23 of this transcript.) SAN FRANCISCO, February 17, 1853. In the same case the deposition of Wm. E. P. Hartnell, a witness in behalf of the claimant, taken before Commissioner Hiland Hall, was filed. (Vide page 35 of this transcript.) In the same case the deposition of Franklin Bates, Gilbert A. Grant, and John S. Fowler, witnesses in behalf of the claimant, taken before Commissioner Hiland Hall, were filed. (Vide pages 32, 33, and 37 of this transcript.) SAN FRANCISCO, March 1st, 1853. In the same case the counsel for the claimant filed the following motion, to wit: (Vide page 161 of this transcript.) Which motion having been sustained, leave was granted to file the annexed petition. Ordered, that the said annexed petition be recorded and filed among the papers in the case. Which annexed petition is as follows, to wit: (Vide page 11 of this transcript.) SAN FRANCISCO, March 28th, 1853. In the same case the counsel for the claimant, Mr. Crittenden, 3 presented the following motion, to wit: (Vide page 162 of this transcript.) Which motion having been overruled, the prayer was denied, The United States vs. Sutter. 3 SAN FRANCISCO, July 14th, 1853. In the same case John Wilson, esq., counsel for I. H. Stover, presented the following motion, to wit: (Vide page 153 of this transcript.) Motion taken under advisement. SAN FRANCISCO, July 26, 1853. In the same case Commissioner Alpheus Felch delivered the opinion of the board, on the motion of the attorney of I. H. Stover, filed on the 14th inst., asking leave to contest the right of the claimant in said case, overruling said motion. SAN FRANCISCO, August 17, 1853. In the same case the deposition of Victor Prudon, a witness in behalf of the claimant, taken before Commissioner R. Aug. Thompscn, was filed. (Vide page 39 of this transcript.) SAN FRANCISCO, October 13,1853. In the same case the depositions of Jose Maria Covarrubias, Samuel Brannan, and P. B. Reading, witnesses in behalf of the claimant, taken before Commissioner Thompson Campbell, were filed. (Vide pages 41, 43, and 47 of this transcript.) SAN FRANCISCO, October 17th, 1853. In the same case the deposition of R. B. Buchman, a witness in behalf of the claimant, taken before Commissione Thompson Campbell, was filed. (Iide page 51 of this transcript. In the same case the deposition of John J. Vioget, a witness in behalf of the claimant, taken before Commissioner Thompson Campbell, was filed. (Vide page 49 of this transcript.) SAN FRANCISCO, October 19, 1853. In the same case the deposition of John S. Fowler, a wit4 ness in behalf of the claimant, taken before Commissioner Thompson Campbell.was filed. (Vide page 53 of this transcript.) SAN FRANCISCO, November 1,1853. In the same case the deposition of John D. Marks, a witness in be. half of the claimant, taken before Commissioner R. Aug. Thompson, was filed. (iide page 59 of this transcript.) 4 The United States vs. Sutter. SAN FRANCISCO, November 4th, 1853, In the same case the counsel for the claimant filed the following affidavit, to wit: (Vide page 161 of this transcript.) SAN FRANCISCO, March 21st, 4854. Case No. 92, on motion of the U. S. law agent, was ordered to be placed at the foot of the first class on the trial docket. SAN FRANCISCO, March 22d, 1854. In the same case the deposition of Abner Brian, a witness in behalf of the United States, taken before Commissioner Peter Lott, was filed. (Vide page 60 of this transcript.) SAN FRANCISCO, March 30th, 1854. In the same case the deposition of Henry E. Robinson, a witness in behalf of the United States, taken before Commissioner Peter Lott, was filed. (Vide page 66 of this transcript.) SAN FRANCISCO, May 9th, 1854. In the same case the deposition of John Bidwell, a witness in behalf of the claimant, taken before Commissioner Peter Lott, was filed. (Vide page 69 of this transcript.) SAN FRANCISCO, June 24, 1854. In the same case the deposition of Samuel Kyburg, a witness in behalf of the claimant, taken before Commissioner Alpheus Felch, was filed. (Vide page 80 of this transcript.) SAN FRANCISCO, June 28, 1854. 5 In the same case the counsel for the claimant filed the following stipulation, with a map marked Exhibit "X, Y, Z, No. 1," annexed thereto, as evidence in this case. (Vide page 165 of this transcript.) SAN FRANCISCO, July 18th, 1854. In the same case the counsel for the claimant read the petition and the papers in evidence, and additional testimony taken on both sides continued for to-morrow. In the same case the deposition of Jacob P. Leese, a witness in behalf of the claimant, taken before the commissioners sitting as a board, was filed. (Vide page 86 of this transcript.) The United States vs. Sutter. 5 To which deposition the U. S. law agent filed the following objections, to wit: (Vide page 163 of this transcript.) In the same case the deposition of Joseph Clough, a witness in behalf of the claimant, taken before the commissioners sitting as a board, was filed. (Vide page 85 of this transcript.) In the same case the deposition of Abner Bryan, a witness in behalf of the United States, taken before the commissioners sitting as a board, was filed. (Vide page 89 of this transcript.) In the same case the U. S. law agent filed a copy of the deposition of John A. Sutter, in case Clarles Covillaud et al. vs. Stephen Field, in the district court of Yuba county, State of'California, as evidence in this case, on behalf of the United States. (Vide page 83 of this transcript.) In the same case the U. S. law agent filed copies of two documents in the recorder's office of Sacramento county, marked X, Y, Z, Nos. 1 and 2, as evidence in this case, in behalf of the United States. (Fide pages 142 and 147 of this transcript.) In the same case the following order was made, to wit: 6 (Vide page 162 of this transcript.) In the same case the U. S. law agent filed the following bill of objections, to wit: (Yide page 163 of this transcript.) SAN FRANCISCO, July 19th, 1854. In the same case argument by the counsel for the claimant resumed, followed by the U. S. law agent, and continued for to-morrow. SAN FRANCISCO, July 20th, 1854. In the same case argument by claimant's counsel resumed, followed by the U. S. law agent, and concluded by the counsel for the claimant; case submitted and taken under advisement by the board. SAN FRANCISCO, Sept. 1st, 1854. In the same case the counsel for the claimant filed the following stipulation, to wit: ( ide page 165 of this transcript.) SAN FRANCISCO, March 20, 1855. Case No. 92 was ordered to be restored to the trial docket for reargument, and the filing of testimony taken since its submission. 6 The United States vs. Sutter. In the same case the depositions of Juan B. Alvarado and Henry L. Ford, witnesses in behalf of the claimant, taken before Commissioner Peter Lott, were filed. (Vide pages 91 and 97 of this transcript.) In the same case the deposition of John J. Vioget, a witness in behalf of the United States, taken before Commissioner Peter Lott, was filed. (Vide page 102 of this transcript.) In the same case the U. S. law agent filed an authenticated copy of Exhibit A A, annexed to the deposition of Samuel J. Hensley, in case No. 683. (Vide page 151 of this transcript.) 7 Case No. 92 was submitted on briefs, and taken under advisement by the board. SAN FRANCISCO, May 15, 1855. In the same case Commissioner R. Aug. Thompson delivered the opinion of the board, confirming the claim. (Vide page 167 of this transcript.) And the following order was made, to wit: (Vide page 219 of this transcript.) SAN FRANCISCO, August 21st, 1855. In the same case the U. S. law agent filed the following motion, to wit: ( Vide page 221 of this transcript.) SAN FRANCISCO, Oct. 16, 1855. In the same case Commissioner R. Aug. Thompson delivered the decision of the board upon the motion filed heretofore, to wit, the 21st August last, by the U. S. asso. law agent, overruling the same. Petition. To the honorable Hiland Hall, Henry J. Thornton, and James Wilson, United States commissioners for the adjudication of California land claims: The petition of John A. Sutter respectfully showeth: That on the 18th day of Junp, 1841, Juan B. Alvarado, then being the commandant general of the department of the Californias, duly appointed and commissioned by the central government of the republic of Mexico, by virtue of and in conformity of to the power and authority for that purpose in him vested, upon the petition of your petitioner, then The United States vs, Sutter. 7 being a naturalized citizen of the said republic and resident of the said department of the Californias, did grant unto your petitioner, of the land on the borders of the river Sacramento, in the vacant lands of the northern frontier, eleven square leagues, as exhibited in the map or sketch annexed to the said petition, (a copy of which is also hereto annexed, marked "& 1,") without including the lands overflown by the swelling and current of the rivers, and supposed 8 to be bounded on the north by ("Las Tres Picas,") the then summits in 390 41' 45" north latitude; on the east by the borders of the (Rio de las Plumas) Feather river; on the south by the parallel of 38~ 49' 32" north latitude; and on the west by the river Sacramento, in and known as and called New Helvetia, (a copy of which grant is hereunto annexed, marked "B.") That in accordance with the terms and conditions of the said grant, legal possession of the said land, according to the laws and customs of the said republic of Mexico, was obtained by your petitioner, which possession has continued in your petitioner and his grantees undisturbed by any conflicting title or claim of any person whatsoever from thence hitherto. Your petitioner further shows unto your honorable board that your petitioner so aforesaid in undisturbed possession of the said eleven square leagues of land on the 5th day of February, 1845, Manuel Micheltorena, then being the commandant general of the department of the Californias, duly appointed and commissioned by the central government of the republic of Mexico, by virtue of and in conformity to the powers and authority for that purpose in him vested, upon the petition of your petitioner and his son, John A. Sutter, junior, naturalized citizens of the republic of Mexico and presidents of the said department of the Californias, did grant unto your petitioner and his son, John A. Sutter, junior, of the surplus of land lying within your petitioner's said ranch of New Helvetia, as laid down in the map which as aforesaid accompanied the grant thereof, twenty two square leagues described upon the said map, a copy of which grant is hereto annexed, marked " C." That in accordance with the terms of the said last-mentioned grant legal possession of the said land, according to the laws and customs of the republic of Mexico, was obtained by your petitioner and his said son, John A. Sutter. junior, which possession has continued in your petitioner and his said son and their grantees undisturbed by any conflicting title or claim of any person whatsoever from thence hitherto. 9 Your petitioner further shows unto your honorable board that subsequently to the making of the aforesaid second abovementioned grant, the whole interest of John A. Sutter, jr., became and was by proper conveyance and for a valuable consideration' vested in your petitioner. Your petitioner further shows that the land claimed by him under and by virtue of the grants above mentioned has never been certified or surveyed by the surveyor general. Your petitioner therefore prays your honorable board that you will 8 The United States vs. Sutter. proceed to examine the right or title which your petitioner claims to possess to the said lands above described, together with such documentary evidence and testimony of witnesses as your petitioner shall present to your honorable board in support thereof, and to decide upon the validity of the same. CHITWOOD, EDWARDS & ROSE, Counselfor Petitioner. Filed in office March 8th, 1852. GEO. FISHER, Sec'y. Recorded Journal, vol. 1, pages 325 to 328, inclusive. GEO. FISHER, Sec'y. Petition. To the commissioners appointed to investigate and settle land claims in California: John A. Sutter respectfully represents that in the year 1839, by permission of Juan B. Alvarado, then governor of California, he settled upon and occupied a tract of land lying upon the American, Sacramento, and Feather rivers, and commenced erecting buildings thereon, and cultivating different portions of the land. That with a view to present an application.to the governor for a title to the land, he caused a map or plan of the land to be made as accurately as was then possible, designating on the map the lines within which was included the lands which he solicited; those lines being on the north, a line running east and west, and passing 10 by or near the Three Buttes, and designated on the map as: latitude 390 32' 45"; on the south, a line running east and west, crossing the Sacramento river about four miles below the mouth of the American river,and designated on the map as latitude 380 49' 32"; on the east, the banks of Feather river; a copy of which map is on file in this case, marked "B." That on the 15th of June 1841, he presented to the governor the original of said map, together with a petition in writing for a grant of eleven leagues of land in exact conformity to the map, not including the land periodically overflowed. That this exception of the land, periodically overflowed, was made in his petition for the reason that the greater portion of the land in that section of country lying between the lines marked on the map as latitude 390 32' 45", and latitude 38~ 49' 32", is valueless in consequence of its being subject to annual overflow from the rise of the rivers, the only land of any value or fit for agricultural purposes being the high land in the immediate vicinity of the rivers. That in order that it might clearly appear what land was intended to be asked for, and what excluded, he designated the same on the map by a dotted line; the land petitioned for being that not subject to annual overflow, and lying between the said rivers and the said dotted lines, and that excluded being the portion lying outside of the dotted line, and marked " Tulares.l The United States vs. Sutter. 9 That the southern line of said tract of land, being the dotted line marked on the maps south of the American river, and north of the line called latitude 380 49' 32", had been actually surveyed and marked out, and its position was well known. That prior to the time of presenting his petition for a grant, he had opened a farm and made improvements at the place called " Hock Farm," on the western bank of Feather river, but had located his principal establishment on that portion of the tract which lies south of the American river, at which point he had commenced the construction of extensive and substantial buildings, and had engaged largely in cultivation of the land; and it was this latter settlement which he had called and which was known by the name of 11 "New Helvetia," and from which the whole tract took its name. That on the 18th of June, 1841, the said gov., Juan B. Alvarado, acting under authority vested in him by the laws then in force, granted him, in accordance with his petition, for his own benefit and that of twelve families, the said eleven leagues of land, within the limits marked out in the said map, without including the lands inundated by the flood and currents of the rivers. The boundaries being on the north the Three Buttes (Las Tres Picas) and latitude 30~ 41' 45" N.; on the east the banks of Feather river, on the south, latitude 380 49' 32" N.; and on the west the Sacramento river; all of whichlwill more fully appear on reference to the copy of said petition and grant on file in this case, marked "A." That after said grant was made he continued in the occupation of the land, and at great expense erected, south of the American river, at his establishment of " New Helvetia," a strong and extensive fort, and maintained there a garrison sufficient for the protection of the settlement and the frontier. That he complied with all the conditions of the grant, and that the results of settlement upon the frontier, in the civilization of the Indian tribes, in the protection which it gave to the frontier, and in the emigration to this point, which it encouraged and secured, were highly beneficial to the whole country, and fully answered the expectation entertained by the government when it sanctioned and promoted his enterprise. He further represents that at the time of making the said map which accompanied his petition for the land, the position of the point at which the southern line of the tract leaves the Sacramento river was determined by observation as accurately as it could then be done, but he is now advised that the determination of the latitude of said point, as made at that time and designated on the map, was erroneous, in consequence of imperfections in the instruments used in making the observation; and that the latitude 380 49' 32", instead of crossing the Sacramento river at that point, as it was supposed to do, would intersect it north of the American river, thereby excluding all that portion of the tract lying south of said American river. 12 He represents that this portion of the land south of the American river was the part of the tract on which his prin 10 The United States vs. Sutter. cipal establishment was actually located; that it was intended to be and was included in the land petitioned for; that it was always understood to be so included by the petition of the government and by the people of the country; that it lies north of the line actually located as the southern line of thd grant, and so designated on the map; and that it was in reference to the actual position of the lines laid down upon the map that the grant was made. For these reasons, and upon the facts herein before stated, he insists that his rights cannot be impaired by an error in the reference to said line by its latitude. He knows of no other claim to any portion of the land now claimed by him. In support of his claim he relies upon the papers on file in this case, and such evidence as he may offer. He prays the confirmation of his title according to the actual position of the lines as located and laid down on the map, and according to the true intent and meaning of the grant, to wit, to the extent of eleven leagues, lying upon the banks of the Sacramento, American, and Feather rivers, between said rivers and the dotted line marked upon said map as the boundary of the overflowed and barren lands, and between the line marked 39.32' 45" and the Three Buttes on the north, and the line marked 38~ 48' 32", as designated on the map, on the south; the southern line of the tract so confirmed to him to be the line represented on the map south of the American river, as it was actually surveyed and marked out. CRITTENDEN, JUGE & MARTIN, Atty's for Claimant. Filed in office March 1, 1853. GEO. FISHER, Secretary. Recorded in vol. 2 of Petitions, on pages 40, 41, 42, and 43. GEO. FISHER, Secretary. 13 Deposition of M. Castanada. OFFICE OF THE BOARD OF COMMISSIONERS OF CALIFORNIA LAND CLAIMS, San Francisco, Jlarch 30th, 1852. On this day, before me, Henry J. Thornton, one of the commissioners for ascertaining and settling private land claims in the State of Califbrnia, came Juan Castanada, a witness produced in behalf of the claimant, John A. Sutter, No. 92 on the docket of the commissioners, being duly sworn, testified as follows, his evidence being given in the Spanish language, and interpreted by Geo. Fisher, secretary. The U. S. law [agent] being notified, was present. Questions propounded by the claimant. 1st question. What is your name, age, and place of residence? Ans. My name is Juan Castanada; my age is about 45 years, and my present residence Sonoma. The United States vs. Sutter. I1 2d question. Do you know Manuel Micheltorena, and offices he held, civil and military, in Alta California? Ans. I know him; I came with him to this country; he was the civil governor and the commander-in-chief of both Californias. 3d question. When did he first come to Upper California to exercise his offices, and how long did he continue in the same in Upper California? Ans. He arrived in September, 1842, and continued until April or May, 1845. 4th question. Do you know John A. Sutter, and how long have you known him, and where did he live when you first became acquainted with him? Ans. Yes, I know him, and have known him since 1839; when I first knew him he lived in Sacramento; it was then called New Helvetia. 5th question. Do you know anything about a petition presented by said Sutter in behalf of himself and his son to the governor, Micheltorena, for a grant of land? And if so, state all you know about it. Ans. I know that Sutter presented a petition as above stated, which petition was acted on in the usual form and granted. 14 6th question. Was any title granted by Micheltorena upon that petition? Do you know who drew the deed? Ans. I do know that a title was granted by Governor Micheltorena to Capt. Sutter. I drew the deed myself, being his aid-de-camp; was with him at Santa Barbara when he executed the deed in my presence; that we were at Monterey just before this, when the civil commotion broke out, and we hastened to Santa Barbara, on our way to Los Angeles, and the deed was executed at Santa Barbara. 7th question. Where was the petition you have spoken of presented to Governor Micheltorena, and where was the deed granted? Ans. When I first knew about this petition being presented it was in the month of October, 1841, and the deed was executed about the month of January or February, 1845. 8th question. Do you recollect how many leagues the grant was for, and where the land is situated? Ans. I do not know the quantity of land which was granted to him. Capt. Sutter had received a grant of land called New Helvetia, which he represented as having distributed amongst his colonists. Then he petitioned for a grant for himself and his son of the overplus or " Sobrante," and which was granted to him in the title aforesaid. 9th question. Will you look at the paper marked Exhibit "C," attached to the petition in this case, and say whether from the contents of said grant, and which you drew, you believe this exhibit to be a true copy thereof? Ans. I have examined the paper described in the above interrogatory, and I believe the same to be a true copy of the deed drawn from and executed by Micheltorena, as above referred to. JUAN CASTANADA. 12 The United States vs. Sutter. Sworn to and subscribed before me this 30th day of March, 1852. HENRY J. THORNTON, Com'r, &c. Filed in office March 30th, 1852. GEO. FISHER, Sec'y. Recorded Journal, vol. 1, pages 482, 483, and 484. GEO. FISHER, Sec'y. 15 Deposition of Manuel Jimeno. SAN FRANCISCO, March 18, 1852. On this day, before Hiland Hall, one of the commissioners for ascertaining and settling private land claims in the State of California, came Manuel Jimeno, a witness produced in behalf of the claimant, in the case of the petition of John A. Sutter, being No. 92 on the docket of the commissioners, and was duly sworn. The U. S. law agent was duly notified, and attended. In answer to questions put by Mr. Chitwood, counsel for the petitioner, the witness testified as follows: My name is Manuel Jimeno; my age is 49 years, and I reside in Monterey, where I have resided for 24 years last past. I was acquainted with Micheltorena in California. He was general and governor. He was military governor of the two Californias, and civil governor of Upper California from the latter part of the year 1842 to the commencement of 1845. He held those offices for three or four months in 1845. I held the office of secretary to the governor during the whole period of his continuance in office. A petition of John A. Sutter, in the name of son, for an extension of land, was presented to Governor Micheltorena in 1843 or 1844. The petition was presented to the governor by David Spence, of Monterey. The governor asked of me, secretary, the information of whether the petition could be granted; I replied, that there was no objection. He then stated that it was very well, and it remained to be matured on another decision. The governor was at that time thinking of visiting Sacramento, but other important military affairs required his attention to the exclusion of civil affairs, and this subject was neglected. At that time there were many petitions presented for lands in Sacramento, which the governor did not wish to grant until after he hlad been to examine in person. He was prevented from going to Sacramento by political difficulty which commenced about that time. The petition was not granted, so far as I know. There was a map attached to i e petition, as I believe. In answer to inquiry made by Mr. ( o'ey, the law agent, the witness testified: 16 T1he governor asked information of me, as secretary, because. be was accustomed to do so in all cases, and because, I suppose, he placed special confidence in me. The governor directed me to make in!f;ro tion on these subjects, and to ask information from other authoriti-is it l considered it necessary to do so. My position as secre. The United States vs. Sutt. 13 taty, and from the length of the time I had been in the country, and the public offices I had filled, I was supposed to be well informed on these matters. I think I had the information that Sutter possessed the requisites to entitle him to a grant. I knew that Sutter was a naturalized citizen of Mexico. I was informed the lands were vacant, there not being even Indians there. I do not recollect where the map, which accompanied the petition, located the land. MANUEL JIMENO. Sworn and subscribed before me. HILAND HALL, Com'r. Filed in office March 19, 1852. GEO. FISHER, Sec'y. Recorded Journal, vol. 1, pages 398 and 399. GEO. FISHER, Sec'y. Deposition of John Bidwell. SAN FRANcIsCO, April 8, 1852. On this day, before Hiland Hall, one of the commissioners for ascertaining and settling land claims in California, came John Bidwell, a witness produced in behalf of the claimant, in the case of John A Sutter, being No, 92 on the docket of the commissioners, and was duly sworn, The U. S law agent was duly notified, and attended, by Mr. Greenhow. In answer to inquiries put in behalf of the claimant, the witness testifies as follows: My name is John Bidwell; I am thirty-two years of age, and I reside at Cluco, in the county of Butte. 17 I am acquainted with Capt. John A. Sutter, the claimant in this case. There was a grant of eleven leagues of land to him, previous to 1841, by Governor Alvarado, situated on the east bank of the Sacramento river, between parallel of latitude 39~ 33' 45", and another parallel running some three or four miles south of the present site of Sacramento city, including both branches of Feather river. One of the conditions of the grant was that he was to settle twelve families upoti it. I know that this condition was complied with. I frequently saw more than that number upon the land. When I came to this country, in 1841, Capt. Sutter was settled on the land at New Helvetia, where his fort was built. The fort was begun in 1841 and finished in 1843. The families above mentioned were part of them settled about the fort, and a part on the American fork, and another on feather river, and all within the limits of his grant. I knew that Capt. Sutter in the fall of 1844 made application to Governor Micheltorena for a grant of the surplus lands included in his original map; I suppose that it was granted to him. 14 iTe United States vs. Sutter. The grounds upon which Capt. Sutter applied for the grant of this'Sobrante" was, that he had been an officer in charge of the frontier for several years, and had kept the frontier quiet, and the government advised of its condition for several years by sending couriers to Monterey and Los Angeles, all at his own expense, and that he had fulfilled the conditions of his first grant. I was in the employment of'Capt. Sutter from 1841 to 1846, and have no knowledge that he ever received any compensation from the government for his services, unless by said grant of land. The Sobrante was occupied by Capt. Sutter. He had cattle and horses on all that tract between the Sacramento and Feather rivers; at one time he had over 4,000 head of cattle and 1,000 horses there. He had persons settled east of the Feather river, on the Yuba river, about a league and a half from Feather river; I think this was on the Sobrante, but am not certain. He had a grist-mill on the 18 American fork, about six miles from the Sacramento, within the limits of the original grant from Alvarado. In answer to questions by the law agent the witness testified as follows: I do not know the terms on which the families settled on the land; I know that some of them had lands granted them by Capt. Sutter; I do not know whether others had such grants or not. Capt. Sutter was a captain in the Mexican army. The families cultivated the land and put stock on it. I do not know whether that was a grant to Capt. Sutter of the Sobrante or not; I accompanied Capt. Sutter to Monterey when he applied for the Sobrante, and I remained there until after he left; he left, I think, the fore part of November, 1844; Governor Micheltorena was in authority at that time. JOHN BIDWELL. Sworn and subscribed to before me. HILAND HALL, Corn'r. Filed in office April 8, 1852. GEORGE FISHER, Sec'y. Recorded in Record of Ev., vol. 1, pages 56 and 57. GEORGE FISHER, Sec'y. Deposition of John J. Vioget. OFFICE OF THE BOARD OF LAND COMMISSIONERS FOR CALIFORNIA, San Francisco, June 4th, 1852. On this day, before Henry J. Thornton, -one of the commissioners for ascertaining and settling private land claims in California, came John J. Vioget, a witness produced in behalf of the claimant, John A. Sutter, being case No. 92 on the docket of said commissioner, and being duly sworn, testified as follows: The U. S. law agent being notified, declined to cross-examine. The United States vs. Sutter. 15 Questions by claimant. 1st question. What is your name, age, and residence; and how long have you resided at said place? Ans. John J. Vioget is my name; my age is 53 years; my residence is in California, where I have resided since 1837. 2d question. Are you acquainted with Capt. John A. Sutter, the grantee in the land claimed in this case? 19 Ans. I am. 3d question. Are you acquainted with the settlement on tract of land claimed in this case, and called New Helvetia? and if so, state what you know of its southern boundary. Ans. The southern boundary of this tract of land commences on the Sacramento river, where Sutter's veil now stands, and run thence to the southern end on point of a pond or lagune; then along the east side of said pond to a row of oaks on the same side of the said pond. It runs thence to within about four hundred yards in the same course of Sinclair's house; thence turning east along the general course to the American fork of the Sacramento river for about three miles to the river, and down the American fork to the junction of Sacramento, and along the Sacramento river to the point of beginning. 4th question. Look on this map, marked Exhibit "B," filed with the petition in this case, and say whether the representation of said map agrees with the description given in your answer to interrogatory No. 3. Ans. It is a correct representation. 5th question. Is the map now referred to, and filed with the petition in this case, and marked Exhibit "B," a correct copy of the map made by you for Capt. John A. Sutter; and if so, in which year was it made? Ans. The general outlines are correct. There are some objects omitted and some inserted, such as houses and farms, which not in the map made by me. In relation to the southern line, the observation made of the latitude is not correct, in consequence of my inability to procure correct instruments, which I mentioned, at the time of taking the observation, to Capt. Sutter. The original map referred to was made by me in January, 1841, as I believe. 5th question. Was the original map which you have referred to as made by you executed prior to the grant? Ans. It was made by me prior to the grant. JOHN J. VIOGET. The U. S. law agent notified, and declined to cross-examine. 20 Sworn to and subscribed before me this 4th of June, 1852. HENRY J. THORNTON, Com'r. Filed in office June 4th, 1852. GEO. FISHER, Sec'y. Recorded in book N, vol. 1, page 556. GEO. FISHER, Sec'y. 16 The United States vs. Sutter. Deposition of Sam' 1 J. Hensley. SAN FRANCISCO, February 2d, 1853. On this day, before Com'r Henry J. Thornton, came Sam'l J. Hensley, a witness produced in behalf of the claimant, John A. Sutter, petition No. 92, and was duly sworn, his evidence being given in English. The U. S. law agent was present. Questions by claimant. 1st question. What is your name, age, and place of residence; and how long have you resided there? Ans. My name is Sam'l J. Hensley; my age about thirty-six; my place of residence in San Jose, California, in which State I have lived ever since the year 1843. 2d question. Are you acquainted with John A. Sutter, the claimant in this case, and with the place called New Helvetia? If yea, state how long you have known them, and what you know of first settlement of the said place called New Helvetia, and by whom it was settled. Ans. I am acquainted with both Sutter and the place spoken of. I have known Sutter ever since the year 1836. I arrived at New Helvetia, the place claimed, in 1843. It was a long adobe building, surrounded by a wall of adobe, of the hith of about fifteen feet, and width about three feet. The enclosure by this wall was area of about one hundred and eighty yards in length, and about seventy in width. There were two bastions finished on the angles of the wall, and four guns mounted on each of them. These were fenced at the time. Within this part were dwelling-houses and houses for the manufacture of various articles. There was a grist-mill, carpenter's shop, blacksmith shop, gunsmith shop, shoe shop, and a distillery of grain raised on the place. The remainder of the building, completing the 21 fort, were erected in the winter of 1843 and the spring of 1844. There was an adobe building about two or three hun. dred yards from the fort, for the vaqueros, and about a mile from the fort, on the American river, there was an adobe building used for the purpose of tanning; also about three miles from the fort, on the American river, there was a house occupied by Mr. St. Clair, who was holding under the claimant, Sutter. These were all the buildings in the neighborhood of the fort. The claimant had about five or six hundred acres of land on the place enclosed by a ditch, in which he cultivated chiefly barley, wheat, and some fruit trees. The stock about the same above spoken of was about eight thousand head of cattle and about three thousand head of horses and mares; about eight hundred head of sheep and about four hundred head of hogs. This stock was all on the same claim, but divided on the different settlements thereon. The number of white persons who resided on the fort, and were retained and employees of Sutter, were about twentv-five. The Indians employed by him varied from one hundred to two thousand, as the work and business on the place would require. The United States vs. lStter. 17 Bd question. At the time you have spoken as your arrival at New Helvetia, viz: in 1843, what improvements were there, if any, and by whom made, at the place called "Hock Farm?" and state if you know where Hock Farm is situated. Ans. "Hock Farm" is situated on the west bank of Feather river, about sixteen miles above its junction with the Sacramento river. There was at that time a small adobe building, a corral built, and. there was then under way the adobe building the claimant now resides in. Those improvements were put there by and under the direction and at the charge of Capt. Sutter, the claimant. 4th question. Was there or not any land in cultivation on "Hock Farm" at the time you speak of, and under whose charge was the place? Anrs. I am not sure that there was any in cultivation in 1843, but I am sure there was in 1844; it was in the charge of Mr. Bidwell, who superintended for Capt. Sutter. 22 5th question. State if you know the location of the place called New Helvetia, with reference to other places or rivers in that section of the country. Ans. The fort of "New Helvetia" is situated about one mile from the American river, on the south side thereof, and about two miles and a half above the junction of the said river with the Sacramento river. 6th question. How long did you reside at "New Helvetia" after your arrival above mentioned, and what opportunities have you had to know its improvement, cultivation, &c., then and since? Ans. I made New Helvetia my headquarters, and considered it my home, and was there from time to time up to the spring of 1846. 7th question. State if you know what further improvements were made, either by Capt. Sutter or by persons settled on the land by him, south of the American river, or on the west bank of the Feather river, down to the year 1846. Ans. There was a house built by a Mr. Montgomery, a blacksmith, on the American river, south side, built about 1845. There was a building put by Sutter for the person who was to attend to his shop, at a place about three miles from fort "New Helvetia," near the Sacramento river. There was a small place improved on the south side of the American river, about half a mile from the junction of the two rivers. The improvements at Hock Farm have been gradually increasing and extending from the time I first knew the place up to this time. There was erected by Capt. Sutter at the fort, west side, a large adobe building for the use and occupation of such emigrants as came into the country before the settlement. 8th question. Do you know or not of settlements made by Capt. Sutter of families and individuals on this claim? If yea, state, as well as you can recollect, the number of such. Ans. There must have been settled by him fifteen or twenty families on the land prior to the year 1846. 9th question. State what effect the establishment of Sutter's fort, [REC. CCLVIIm, D. T. 1862.] —2 18 The United States vs. Sutter. &c., of which you have spoken, had in regard to protecting the frontier, and that portion of the country, from the Indians, and in promoting and facilitating the emigration into the country. Ans. The establishment of Sutter did serve to protect settle23 ments, and to induce them to be made; and I further believe that but for Sutter's fort, and his forces which he could command and contrate, that the foreign emigrants would have all been driven out of the country. I know that Capt. Sutter always acted with great kindness to the emigrants; he gave them aid when in distress, and work to do, for which he paid them whenever they wanted it. Questions by the U. S. law agent. 1st question. Do you know whether Capt. Sutter ever received any grant or title for the lands on which these improvements were made? If so, state when and by whom the title was given, and what were the limits of the tract granted. Ans. I saw a paper, purporting to be a title from Governor Alvarado, in the possession of Capt. Sutter, as to the limits of the tract. I understood from Capt. Sutter, and from Capt. Vioget, who made the survey, that it commenced at a point on the Sacramento river about four miles below the mouth of the American river, and the Yuba, a distance, I suppose, fifty miles; thence westerly to the Sacramento river, crossing the Feather river; thence down the Sacramento river to the beginning. As to the line running northerly from the American river, I have no distinct recollection of its description as given me by those parties. 2d question. Did you understand those limits as the same fixed in the title given by Gov. Alvarado? Ans. I did not know what limits were given or fixed in the grant; what I refer to is the land as surveyed by Vioget. 3d question. Did you ever understand that this title had ever been confirmed by the supreme government of Mexico? Ans. I do not recollect ever to have heard that it was so confirmed. 4th question. Did the families mentioned by you as settled on the land receive any grants of land, as their property, from Capt. Sutter? Ans. Some of them did; others did not; Mr. Grimes did; Mr. Cardua did; Nicolas Ortega did; John Smith and Allen Mont24 gomery did also, prior to 1846. I do not recollect any other cases. Grimes told me that he preferred having a title from the governor, then from Capt. Sutter, and that he gets Sutter's relinquishment, and received a grant from both Sutter and Gov. Micheltorena. [The claimant objects to the statement of the witness of Grimes's conversation.] SAM'L J. HENSLEY. Sworn to and subscribed by the witness, Hensley, before me, this 2d of February, 1853. HENRY J. THORNTON, Corm'r. The United States vs. Sutter. 19 Filed in office Feb'y 2d, 1853. GEO. FISHER, Sec'y. Recorded in N. B., vol. 2, p. 527. GEO. FISHER, Sec'y. Deposition of Fran' co Arce. SAN FRANCISCO, April 2d, 1852. On this day, before Hiland Hall, one of the commissioners for ascertaining and settling land claims in California, came Francisco Arce, a witness produced in behalf of the claimants in the case of the petition of John A. Sutter, being No. 92 on the docket of the commissioners, and was duly sworn. The law agent was duly notified and attended. Questions by claimant's counsel. Question 1st. What is your name, age, and place of residence? Ans. My name is Francisco Arce; my age 28 years; and my residence Santa Clara county, California. Question 2d. What office did youfill in the government of California? Ans. I was the first clerk in the office of the secretary of state. Question 3d. State what you know in regard to the grant by Governor Micheltorena to Capt. John A. Sutter, of what was called the Sobrante, (overplus,) of the grant previously made to him by Governor Alvarado for the settlement of twelve families. Ans. During the time I acted as clerk in the secretary' s office, 25 at the request of Capt. John A. Sitter, I drew up for him a petition for the Sobrante mentioned above, which was passed to the government through all the customary steps, and was returned to the office of the secretary again, when, he believes, it was delivered to Capt. Sutter. FRANCISCO ARCE. Sworn and subscribed before me. HILAND HALL, Comrn' r. Filed in office April 5th, 1852. GEO, FISHER, Sec'y. Recorded in Record Ev., vol. 1, pages 24 and 25. GEO, FISHER, Sec'y. Deposition of Antonio Sunot. SAN FRANCISCO, January 19, 1853. On this day. before Commissioner Hiland Hall, came Antonio Sunot, a witness in behalf of claimant, John A. Sutter, petition No. 92, and was duly sworn, his evidence being interpreted by the secretary. The U. S. ass't law agent was present. 20 The United States vs. Sutter. In answer to questions by counsel for the claimant the witness testified as follows: My name is Antonio Sunot; my age, 55 years; and I reside in San Jose, and have resided there for the last thirty-five years. I am acquainted with John A. Sutter, and have known him ever since he landed in this country at the port of San Francisco. I think it was about the year 1837, but cannot be certain in regard to the time. As soon as he landed he embarked his effects in barouches and went up the river Sacramento, and established himself in the same place where he afterwards had his fort, and where the city of Sacramento now is. The fort, I think, is about one thousand varas above the mouth of the American river. I was at the place about a year and a half after Capt. Sutter landed. He had several houses, and had fortified himself as well as he could against the Indians. There were from twenty to thirty persons living there besides Indians; I mean persons in his employment; there were nine at work as mechanics, and others in farming. He had also Indians in 26 his employ. He had considerable land in cultivation, more than two hundred acres. He had no cattle at that time. I was at the place again in 1840. I had sold Capt. Sutter cattle, and went there for my pay. His establishment was considerably enlarged. He had tan-yards on the banks of the American river, workshops within his fort, and had enlarged his ground under cultivation. I did not see all his cultivated land. The cultivated land on the banks of the river which I saw was about three miles in circumference. The fort was made of adobes, and was from four to five hundred varas square, and he had pieces of artillery there. The number of persons there had increased; he had houses outside the fort, and had some four or five hundred persons there, including Indians. He had thirty or forty Indians who were armed and kept guard. The houses outside the fort were about it and near it. He had at this time some eight hundred or a thousand head of cattle which I had sold him. I was there again about the end of the year 1842, or the beginning of 1843, which was the last time I was there until the year 1848. In 1843 there were more people there, and more cultivated grounds, than in 1840. In the whole settlement there were many more people. It would be difficult to tell the number. There were ranches established, and the people were scattered about them. I cannot say how far they were under Capt Sutter. Emigrants came there and stayed a time and then left. The persons settled about there were some Americans, some Frenchmen, and some of the people of the country. There was a saw-mill in the mountains, some seventy miles above the fort, carried by water-power. Between the mill and fort there was a rancho belonging to Leidsdorf, as I understood, and there were also some cultivated grounds of Capt. Sutter's in different places where the lands were most suitable for cultivation. I think the saw-mill was on the American river. These cultivated, lands were from one to two miles from the fort. Capt. Sutter The United States vs. Sutter. 21 27 was the owner of the mill, and it was called Sutter' s mill. There was a grist-mill near the fort belonging to him. Between the fort and the Sacramento river there were cultivated lands, and he had huts for the tools used in repairing the bouts. There was no house there. The houses spoken of were around the fort, within the distance of from one to two hundred varas. In 1843 there may have been about two hundred souls in the settlement, exclusive of Indians. I cannot tell the number of Indians in his employment. When they found a common they would flock in in large numbers; it was costly keeping them, and when the work he wanted done was completed he would discharge them. I know that there were more than twelve families settled there in 1843, permanently established. I spent two or three days with Capt. Sutter at each time I visited his place. I was in Sacramento county in 1819, and also in 1820; there were no settlements then there; I went with about forty or fifty armed Indians belonging to the missions for the purpose of reducing the wild Indians to civilization; the wild Indians were not at open war, but were ready when occasion offered to do injury to the civilized portion of the inhabitants; they were always ready to plunder, and they made incursions into the settlements, and they were very troublesome; they were afterwards more troublesome. The settlement of Capt. Sutter had considerable effect in protecting the civilized inhabitants of California from the depredations of the wild Indians. The Indians in the vicinity of his settlement were partially civiIized by him, and were so far under his control that they would aid in defending against the wild Indians, and they consequently became less troublesome. He sometimes made expeditions with his own people and the Indians under his control against the wild Indians. The nearest settlement to where Capt. Sutter established himself was Sonoma, about fifteen or twenty leagues distance, as I should think. In answer to inquiries by the associate law agent the witness testified as follows: On my first visit to Capt. Sutter, before mentioned, he told me that he had about thirty leagues in extent of land, for which 28 he had received a title from the government of California; I do not recollect whether he said he held the land as his own property or not. Capt. Sutter had not at that time bought the Russian property at Bodega. There were three classes of settlers at Sutter's establishment when I first visited there; there were about twenty families of Europeans and Californians, and from ten to twelve families of civilized Indians from the different missions, and there were besides a great number of transient Indian families, who came to work and then went away. These families either lived in the fort or in the immediate vicinity. I did not learn from Capt. Sutter whether he had granted any of the land to others or not. Capt. Sutter never told me that he had recommended to the government to grant lands to the people who were set. 22 S he United States vs. Sutter. tied about him in other places. I feel confident that I am correct in my estimate of the number of families about the fort. In answer to question by counsel for the claimant the witness testified as follows: I have given the dates of occurrences according to my best recollection; I may have been mistaken in some of them; I am not confident they are entirely correct. I sold the cattle to Capt. Sutter after my first visit to his place. On the deposition being read to the witness, he says he thinks his second visit to Capt. Sutter was in 1841, instead of 1840. ANTONIO SUNOT. Sworn and subscribed before me. HILAND HALL, Com'r. Filed in office Jan'y 19th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 2, page 473. GEO. FISHER, Sec'y. Deposition of Gilbert A. Grant. SAN FRANCISCO, Feb'y 17, 1853. On this day, before Commissioner Hiland Hall, came Gilbert A. Grant, and was duly sworn, being a witness in behalf of the claimant, John A. Sutter, petition No. 92, his evidence being given in English. The U. S. associate law agent was present. In answer to inquiries by counsel for claimant the witness testified as follows: 29 I am acquainted with the country on the Sacramento, American, and Feather rivers. On each side of the Sacramento, from the American to the Feather rivers, are strips of timber land sufficiently high not to be subject to the usual overflow of the river; these strips of land are from a quarter to a half mile in width, and are bounded in the rear by the tular marshes. The country is of the same character on the Feather river, the timber land on the east side being generally wider than on the Sacramento. On the Sacramento, from its intersection with the Feather river, the ground is lower, and for the most part is overflowneverywinter. Itistimber, likethelandsbefore mentioned. The country lying on the fork between the Sacramento and Feather rivers, with the exception of the timber land on the banks of the rivers before mentioned, is subjected to annual overflow during the wet season. GILBERT A. GRANT. Sworn to and subscribed before me. HILAND HALL, Com'r. Filed in office Feb'y 17th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 2, page 585. GEO. FISHER, Sec'y. The United States vs. Sutter.. 23 Deposition of John S. Fowler. SAN FRANCISCO, Feby 17th, 1853. On this day, before Commissioner Hiland Hall, came John S. Fowler, a witness in behalf of the claimant, John A. Sutter, petition No. 92, and was duly sworn, his evidence being given in English. The U. S. associate law agent was present. In answer to inquiries by the counsel for the claimant the witness testified as follows: My name is John S. Fowler; my age, thirty-four years; and I reside in Sacramento city. I have lived in California six years, and since the year 1848 have resided at Sacramento. I am acquainted with Capt. John A. Sutter, and with the country lying on the Sacramento and Feather rivers. On the banks of the Sacramento, from its junction with the American to nearly the mouth of the Feather river, is high land, formally well timbered. The average width of the high 30 land I should judge to be from half to three-fourths of a mile. The land the grows lower and becomes tular or swamp land; the swamp land I should judge would average two and a half miles in width through the whole tract, being sometimes wider, sometimes narrower. Then there is a general but gradual rise of the land for a quarter or half a mile, when it becomes a high plain, not subject to be overflown with water. From there, with an occasional valley, the plain continues to the foot-hills of the mountains; the average distance being from fifteen to twenty miles. The highland on the banks of the river is not subject to annual overflow. The tula land is annually overflowed by means of sloughs through the timber land, through which the waters run from the river during the wet season. On both banks of the Feather river there are strips of high timber land, and back of them tula land. On the east side of the Sacramento river, above Feather river, there is also a strip of high land, and back of it tula land. In general the high lands are not subject to overflow, but the tula lands are. In the years 1848, 1849, and as late as 1850, Capt. John A. Sutter occupied land on the east bank of the Sacramento river, between the American and Feather rivers. He had stock, consisting of horses and cattle, and Indians in charge of them. They had huts-some on the banks of the American river, about a mile from its junction with the Sacramento, and others two miles or two and a half above the American. on the Sacramento. In the summer of 1850 I had in my possession the original grant from Governor Alvarado to John A. Sutter of eleven leagues of land, and it continued in my possession upwards of a year, until the fall of 1851; it was then destroyed by fire. I was in my office in Sacramento when the office was burnt, with everything in it; nothing was saved that was in the office, belonging to me or any one else. When the grant was in my possession, 1 bad frequent occasions to refer to it, and I became familiar with its contents. I should think the paper 24 DThe Unitel States vs. Sutter. marked "Titulo," being part of Exhibit "A," filed in this case, was a copy of said grant that was in my possession and burned, 31 When the paper came into my hands there was a map attached to it, which was destroyed with the grant. A map is now shown me, being Exhibit "B," filed in this case, and marked'HI. TH. No. 1." I think this map is a correct copy of the one destroyed; except, I think there are more dottings of trees below the American river, on the right-hand corner on this map, than were on that. In every other respect I think it is an accurate copy. I know that the dotted lines which follow merely the courses of the rivers on this map to be in exact conformity to those on that. The original grant and map were put in my hands by Capt. Sutter. I was acting as his agent, and had charge of the papers and documents relating to his affairs. In answer to inquiries by the U. S. associate law agent the witness testified as follows: I recollect the limits of the territory expressed in the grant. It is bounded on the north by a parallel of latitude of 39 degrees and some minutes and seconds, commencing on the Sacramento river and running east on said parallel of latitude to the Feather river; thence down Feather river to its junction with the Sacramento; thence up the Sacramento to the place of beginning. JOHN S. FOWLER. Sworn to and subscribed before me. HILAND HALL, Com'r. Filed in office Feb'y 17, 1853. GEO. FISHER, Sec'y. Deposition of W. E. P. Hartnell. SAN FRANCISCO, FebYy 17th, 1853. On this day, before Commissioner Hiland Hall, came Wm. E. P. Hartnell, a witness in behalf of the claimant, John A. Sutter, petition No. 92, and was duly sworn, his evidence being given in English. The U. S. associate law agent was present. In answer to questions by the counsel for the claimant the witness testified as follows: My name is William E. P. Hartnell; my age is fifty-five years; and I reside in Monterey. I have lived in California upwards of thirty years. I have known Capt. John A. Sutter ever since he came to this country. I know where New Helvetia is; Capt. Sutter 32 settled there prior to his receiving the grant. It was at the place called Sutter's fort, south of the American river, and I should think between two and three miles from the Sacramento. His settlement was considered as embraced in the tract called New Helvetia. The settlement was known by the name of New Helvetia, and also by the name of Sutter's fort. In all the papers I have seen it was called N. Helvetia, The United States vs. Sutter. 25 In answer to questions by the associate law agent the witness says: He has seen the grant to Capt. Sutter, and made translations of it, but does not recollect the boundaries; I think one of the boundaries was called "Three Peaks." From what I can recollect of the grant, I always considered that the fort was part of New Helvetia. In answer to inquiries on behalf of the claimant, the witness, on being shown a paper headed "Titulo," being part of Exhibit "A," filed in this case, says that he thinks the paper is a true copy of the grant before referred to; the general wording of the grant appears to be the same. Questions by the associate taw agent. Examine the paper which you think to be a copy of the grant to Capt. Sutter, and say whether, according to its terms, you consider Sutter's fort to be embraced within the limits of the tract granted. [The above question objected to by claimant's counsel.] Ans. After examining the paper, it is impossible for me to decide whether, according to the tenor of the paper, the fort is included in the tract described or not. Do you know the course of Feather river? Ans. I do not, personally, know Feather river or its course. WM. E. P. HARTNELL. Sworn to and subscribed before me. HILAND HALL, Coom'r. Filed in office Feb'y 17th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 2, page 583. GEO. FISHER, Sec'y. Deposition of Franklin Bates. SAN FRANCISCO, Feb'y 17th, 1853. On this day, before Com'r Hiland Hall, came Franklin Bates, a witness in behalf of the claimant, John A. Sutter, petition 33 No. 92, and was duly sworn, his evidence being given in English. The U. S. associate law agent was present. In answer to inquiries in behalf of the claimant the witness testified as follows: My name is Franklin Bates; my age is thirty years; and I reside at Vernon, in Sutter county. I have lived in California since the month of June, 1847. I am acquainted with John A. Sutter, and with the place called New Helvetia. I am very well acquainted with the country lying on the Sacramento and Feather rivers. I lived at Sutter's fort in 1847, 1848w and part of 1849, during which time I was 26 The United States vs. Sutter. familiar with that part of the country. I had a stock of horses and cattle running there, and was frequently over the land. Capt. Sutter in 1847 and 1848 had a stock of cattle and mares on the land lying ou the east branch of Sacramento river, between the mouths of the American and Feather rivers, and had Indians in charge of them. The Indians had their families with them, and had huts there. The stock was on the land when I went there in 1847. The huts were on the banks of the American and Sacramento rivers. The stock came to the river for water, and ranged back in the tules. On the bank of the Sacramento, between the American and Feather river, there is a strip of timber land about a half mile in width, and back of it are tule and swamp lands. The timber land is the highest. The timber land is not overflowed. In the tule lands there is always more or less water in the wet season. The tules are overflown by water passing through sloughs from the river. I have never seen any of the tule lands cultivated, and I do not think they can be cultivated; it is a marsh, bearing large weeds and little grass. The timber land produces good crops, and is fine grazing land. The tule lands extend back to the mountains, with occasional dry barren spots intervening. From the river to the mountains the distance is about twenty-miles, as I think. The intervening dry lands before mentioned are of very little use for grazing, and they are unfit for cultivation; I have tried to cultivate them, but it could not be done. 34 On the north side of the American fork there is not much tule land in the vicinity of the river. On the Feather river, towards its mouth, the land is similar to that before described on the Sacramento, the tule lands coming near the river. After going up the river (Feather) some ten or twelve miles, the high ground becomes wider, and the tule lands are not so near the river. On the Sacramento, above the Feather river, a similar strip of timber land to that below continues, but is wider, and back of it are tule lands. The timber land is high land, good for grazing and cultivation. The timber land is not subject to annual overflow, but the land back of it is. In answer to inquiries by the associate law agent the witness testified as follows: I am interested in lands claimed by Capt. Sutter, lying on the east bank of the Feather river, at its junction with the Sacramento river. I bought of Capt. Sutter some two miles square of land, and claim it now. The associate law agent objects to the competency of the witness, but at the request of counsel for the claimant this deposition is certified, subject to such objection. FRANKLIN BATES. Sworn to and subscribed before me. HILAND HALL, Com'r'. The United States vs. Sutter. 27 Filed in office Feb'y 17th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 2, p. 583. GEO. FISHER, Sec'y. Deposition of Victor Prudon. OFFICE OF COMMISSIONERS OF CALIFORNIA LAND CLAIMS, San Francisco, Aug. 17, 1853. This day, before Com'r Rob't A. Thompson, came Victor Prudon, a witness in behalf of claimant, John A. Sutter, case No. 92; after being duly sworn, deposed as follows: Present: A. P. Crittenden, esq., att'y for the claimant, and Volney E. Howard, esq., U. S. law agent. Questions by claimant's counsel. What is your name, age, and place of residence? 35 Ans. My name is Victor Prudon; age, forty-four years; residence, San Francisco. Question by same. Do you know the establishment of New Helvetia? Ans. I do. Question by same. Where is it situated, and when was it named? Ans. It is situated on the bank of the Sacramento river, and was founded by Capt. Sutter about the year 1839. Question by same. Do you know of any proposition having been made at any time to Capt. Sutter by the Mexican government, or any agent of said government, for the purchase of said establishment of N. Helvetia? If so, state all you know about it. Ans. In the year 1845 Capt. Castillano, Gen. Castro, and myself went to New Helvetia to pay a visit to Capt. Sutter and Capt. Castullo, who had special instructions from the Mexican government, requested me to propose to Capt. Sutter one hundred thousand dollars for the establishment of New Helvetia. Capt. Sutter refused; and I was requested to offer to him the mission of San Joseph, and orders on the custom-house, the amount of which I forget, which Capt. Sutter also refused. He would not accept any proposition. Question by same. For what purpose was the visit you spoke of made to Capt. Sutter? Ans. For the purpose of making the above propositionof New Helvetia. Question by same. Did Capt. Castillero and Gen. Castro at that time occupied any official position under the Mexican government? If so, what were they? Ans. Gen. Castro was then the gen. commandant of the department of California, and Capt. Castillero came, as I said before, with special instructions from the government of Mexico in relation to that -subject, and other matters. 28 T7e United States vs. Sutter. Question by the same. In what capacity, and at whose request, did you accompany those gentlemen? Ans. I was at that time lieut. colonel in Mexican army, and went at the request of Capt. Castillero as secretary, to prepare the necessary papers in case Capt. Sutter should have accepted the propo. sition for the sale of New Helvetia. Cross-examined by U. S. law agent. 36 From what office of the Mexican government were the instructions of Capt. Castillero of which you spoke? Ans. From the president himself. Do you remember the date of the instructions? Ans. They were dated in the year 1845. When were you first at New Helvetia? Ans. It was, as near as I can recollect, in the year 1841; I went there with the Russian governor of Russ. Can you describe where Sutter's fort was then situated? At about four miles from the Sacramento river, from the landing place on said river. What was the amount of population at New Helvetia when you first visited it in 1841? Ans. I saw no one at that time, except the employees of Capt. Sutter and some wild Indians. What was the population in 1845? Ans. According to my recollection, it did not exceed two hundred souls, I mean white population, excluding Indians. How is the present town of Sacramento situated with reference to the site of New Helvetia? Ans. It is in exactly the same place. And further this deponent saith not. VICTOR PRUDON. Sworn to and subscribed before [me] this 17th August, A. D. 1853. R. AUG. THOMPSON, U. S. Land Commissioner. Filed in office Aug. 17th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 3, page 55. GEO. FISHER, Sec'y. Deposition of P. B. Reading. OFFICE OF THE BOARD OF CO0MMISSIONERS, &C., &C., &C. This day, before Commissioner Alpheus Felch, came Parson B. Reading, a witness in behalf of claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: The United States vs. Sutter. 29 Questions by Governor McDougal, att'yfor claimant. 1st question. What are your name, age, and place of residence? Ans. Parson B. Reading; my age is 36 years; and I reside at Shasta county, California. 2d question. Are you acquainted with John A. Sutter? and if yea, when did you become acquainted with him? Ans. I am acquainted with him, and have knowrr him ever since the fall of 1843. 3d question. Where did he reside? Ans. At Sutter's fort, in the present city of Sacramento. 37 4th question. Do you know whether in 1843 Captain Sutter occupied and resided on his present farm, known as the Hock Farm, on the west side of Feather river? Ans. I know that he occupied it, but do not know that he resided on it. There was on it at the time a good adobe house, house of the vaqueros, corrals, and all improvements necessary for conducting a raricho. It was also well stocked with large numbers of cattle and horses. 5th question. Was that place generally reputed at that time to be a part of Capt. Sutter's grant? Ans. It was. It has also been occupied by him ever since; either himself or some one representing him. 6th question. Did Capt. Sutter hold any office, civil or military? Ans. lie was acting as alcalde, and also held a commission as captain in the service of Mexico. under Gov. Micheltorena. In the winter of 1844-' 5 he organized a company of foreigners, principally Americans, and with them and Indians, to the number of about one hundred, he marched to join Governor Micheltorena in actual service. This was done under orders of Gov. Micheltorenl. There was at that time an attempt at a revolution, and the Californians were in arms for the purpose of driving him from the coullnly. In the expedition he was reputed to be taken a prisoner at tile i,: ttle of Cohaenga. I was in command at Fort Sutter at that time, an:d received official notice of that fact. PEARS'ONi B. READING. Mr. Greenhow, associate law agent, was presen t the taking of this deposition, but declined asking any questions. Subscribed and sworn befo:e me, at San Fr>:T':ci~io, Oct. 6th, 1853. ALPHEUI> 3FELCH, Com'r. Filed in office October 6th, 1853. GEBL. FISHER, Sec'y. Recorded in Ev. B,, vol. 2, page 706. GEO. Fi jSER, Sec'y. 30 The United States vs. Suttcr. Deposition of Sam'l Brannan. OFFICE OF THE BOARD OF COMMISSIONERS, dC., (&c. On this day, before Thompson Campbell, com'r, came Samll' Brannan, a witness in behalf of claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: 38 My name is Samuel Brannan; I am thirty-four years of age, and I reside in the city of San Francisco. When and where did you first become acquainted with Capt. John A. Sutter? I became first acquainted with Capt. Sutter at his fort in the month of April, 1847, where the city of Sacramento now stands. State what improvements he had made in character and value in that vicinity. He had a large fort at that time, the locality of which was within the present limits of the corporation of the city of Sacramento: I should judge about fifteen to two thousand acres, as near as I could calculate, under fence and ditch, and improved, sown with wheat and barley. He had two adobe houses built about two and a half miles to the eastward, on the south side of the American river, and enclosures and corrals for the keeping of sheep and stock, occupied by Indians. About two miles still to the eastward, on the south side of the American river, another adobe house was built. I should judge the value of the improvements, the fort, the buildings, the corrals, and the enclosures, to cost about one hundred and fifty thousand dollars, and at that time to be worth from seventy-five to one hundred thousand dollars. About one mile to the northward of the fort there were two buildings immediately on the bank of the American river, and one was occupied as a tannery, and the other as a hatter's shop; and to the southward and westward of the fort there was another building, two miles and a half from the fort. This was used for the purpose of a piggery. The fort was located about two miles from the Sacramento river, and one mile south American river. There were two other buildings on about three hundred yards from the fort, and the other about two hundred yards from it. For one of these buildings I paid, in the winter of 1848 and'49, two hundred dollars per month. In 1849 I gave him ten thousand dollars for the building and two acres of ground. He built a mill on the American river in 1848, which was a large flouring mill, and dug a race three miles long in which he in39 tended to take water from the American river, at, I should think, an expense of eight or ten thousand dollars. Mill and race were a total loss; the men all went to the gold mines. Do you know anything of improvements made on the Hock Farm, so called, situated on the western bank of the Feather rive.? I heard of such a place in 1847; I visited it in 1849. There was a very fine adobe building-house; a large quantity of out-buildings: large enclosures for agricultural purposes; ranches of Indians within one The United States vs. Sutter. 31 hundred yards of it; grain fields, fruit trees, vegetables, &c. I should judge those improvements, from their appearance, had been there several years. The distance, I should judge, was about thirty miles from the fort to the northward, on the northwestern bank of Feather river. The work was performed by Indian labor; I think there [were]. one or two white men in charge of the place. There was stock, consisting of horses, mules, two or three hundred head of cattle, and hogs and sheep. Captain Sutter was the reputed owner of all these improvements, and exercised a genera] supervision over the whole business of the place. I should judge the improvements and the stock, so far as my knowledge goes, to be worth eight or ten thousand dollars at that time. In 1847 there was one building near the fort that I should judge contained some twelve or fifteen families, who were soiourners there while their husbands were in the war, and were supported at the expense of Capt. Sutter. The point of the southern line as it struck the Sacramento river, as it was pointed out to me by the gentleman who made the survey for Sutter, was at the junction of a dry slough with the Sacramento, about five or six miles south of the junction of the Sacramento and American rivers, termed and known as the Russian Embarcadero, and in 1849 surveyed and laid off into a town by Doctor Bates, and called Webster. The line, as I understood from the surveyor, run from that point in a northeast direction on the east side of a slough and low land until it intersected the American river, about six or seven miles from the fort, country with what was called the 40 Leidsdorff ranch. The direction of the line run north until it struck the Feather or Yuba river. Between the fort and Sacramento river, near the southeastern line, the land was subject to overflow. Questions by Mr. Green7tow. Did you, in 1847, understand all the land and houses at and about the fort to be claimed by Capt. Sutter, as belonging to himself exclusively? The houses were built by him and his labor, previously occupied by the Indians, and at that time used by the emigrants from the United States. I understood all these lands and houses as belonging to Capt. Sutter, as no one else would take them as a gift, only for purposes. This was in 1847. Capt. Sutter offered me one mile of land adjoining the fort on the west side if I would settle there. Upon what authority did you understand at that time that Captain Sutter claimed the land south of the American river, extending to the southern line described by you? By grant from the governor of California, which grant I did not see at the time, but Capt. Sutter stated to me the circumstances under which he obtained it, which were, as I understood from him, as well as from the old citizens of California, was his usefulness in defending the northern frontier from the ravages of the Indians, and colonizing 32 The United States vs. Sutter. and chastising them; and I also understand from him, as well as from the older citizens of the country, that when the emigrants from the United States began to emigrate into the country and settle in the vicinity of the fort, that the Mexican government offered him, in exchange for his fort and grant, the mission of San Jose at the south end of San Francisco bay, which I have since learned through Don Pablo de la Guerra, who was an officer of the Mexican government at that time, that said proposition was made by the government of Mexico. How many square miles do you suppose to be contained within the limits mentioned by you south of the American river? I should judge there was from ten to twelve square miles 41 within said limits. Re-examined by attorneyfor claimant. In relation to my last answer, I desire to say that I never made any particular estimate of the quantity of land within said limits, but merely stated my impression from having passed over the land. SAMUEL BRANNAN. Sworn to and subscribed before tne this 12th day of October, A. D. 1853. THOMPSOZ CAMPBELL, Com'r. Filed in office Oct. 13th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 2. page 249. GEO. FISHER, Sec'y. Deposition of P. B. Reading. OFFICE OF THE BOARD U. S. LAND COMMISSIONERS, &C., C&c. This day, before Commissioner Thompson Campbell, came Pearson B. Reading, a witness in behalf of claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: My name is Pearson B. Reading; my age is thirty six, and I reside in Shasta county. I recollect of riding with Capt. Sutter, about nine years since, down the banks of the Sacramento, about six miles distant from where Sacramento city now stands, to a point which he designated as being the commencement of his boundary line, a large oak which stood near the junction of a slough with the Scramento river, just above a place called the Russian Embarcadero. 3d question. What is the character of the lands on the Sacramento and Feather rivers, embraced within the lands claimed by Capt Sutter? Ans. The greater portion is high, plain land, not subject to overflow. The greater portion on the banks of the river is timbered, alluvial lands, and subject to overflow. I have seen it overflowed in 1849 and in 1851. Generally all streams that overflow from the land higher upon the bank than back from the river. The United States vs. Sutter. 33 Some of the persons in the employ of Capt. Sutter, in the first year of his settlement on the lands, have left him-indeed, they have all left; I know of none living on the land now who were with him at that time; I know thatCapt. Sutter represented to me, in the spring 42 of 1844, that Mexican government officers were desirous of purchasing his establishment called New Helvetia; he stated to me that a large sum of money was offered him, being in his employ and in his confidence at the time he advised with me as to the propriety of selling his property; he concluded not to sell; I saw two Mexican officers at the fort at that time; they remained there several days, and made many inquiries in relation to the Sacramento valley. At the time Capt. Sutter refused selling the establishment, he urged, as one of his most prominent reasons, that the fort should serve as an asylum for American emigrants. Questions by Mr. Greenhow. 1st question. Did you understand or consider, in 1849, that the Mexican government was anxious to get Capt. Sutter removed from the fort and the valley of Sacramento? Ans. From the number of Americans that were constantly at the fort in the employ of Capt. Sutter, and otherwise engaged, the Californians became somewhat suspicious that the Americans were acquiring strength in the country. 2d question. Did you know of Capt. Sutter having granted, given, or sold lands within the tract claimed by him, to settlers, before the American occupation? Ans. He either leased or sold to Thomas Cardua a tract of land lying between the Feather and Yuba rivers, near or at the junctionto what extent I do not know; to Nicholas Altgur he gave lands in consideration of his settlingupon them at the place now called Nicholas, on the Feather river; he also gave to Elijah Grimes a section of country on the north side of the American fork, in consideration of his settling upon it, placing stock upon it, and cultivating it; he also made some other donations of land on Bear creek, inconsideration of settlement near Feather river; I don't know that he ever made grants of land south of the American fork. PEARSON B. READING. Sworn to and subscribed before me this 12th of October, A. D. 1853. THOMPSON CAMPBELL, Com'r, Filed in office Oct. 13th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 2, page 707. GEO. FISHER, Sec'y, [REC. CCLIII, D. T. 1862.] —3 34 The United States vs. Sutter. Deposition of J. Vioget. 43 JOHN A. SUTTER ) vs. THE UNITED STATES. OFFICE OF THE BOARD OF COMMISSIONERS, &c., &C., &C. This day, before Corm'r Thompson Campbell, came John J. Vioget, a witness in behalf of the claimant, who, after being duly sworn, deposed as follows: What is your name, age, and place of residence? My name is John J. Vioget; I am fifty-four years of age, and I live in the county of San Francisco, on the Pulgas ranch. State if you fixed a stake or other landmark at or near the lagoon, described by you in your former deposition, as the southern boundary of the grant in this case. Yes, I put the stake on the edge of the lagoon; from that place I went to the Sacramento river, from which point I made my starting point for the survey, and run back again to my stake, in which place I took the altitude of the sun for its latitude. How did you survey or run said tract from such landmarks on the lagoon? On the east side of the lagoon; then on the east side of the clump of oak trees;from these towards St. Clair's house, which was about one hundred yards from St. Clair's house; and then I went eastward along the river, then came down the American fork to its junction with the Sacramento river, which completed as near as possible the two leagues square which Capt. Sutter wanted then. From the junction of the American fork and the Sacramento river I run up the said Sacramento river, measuring each distance of land to the junction of Feather river; then I took another observation of the sun for its latitude; I surveyed from that junction to the fort, then I began to survey on Feather river, on both sides of that river, nine leagues square, which brought me, as near as I can remember, a mile and a half above the junction of Feather and Yuba rivers. From the American fork to the ford of Feather river I traced a small margin of land all along the Sacramento river, on the east side of Sacramento river, and on the north side of the American fork, the same to connect the two leagues square with the nine leagues on the 44 Feather river. What do the dotted lines on the Sacramento represent; were they made by you at the time, and on what information? Said lines represent only the overflowed lands as far as I could see; but that part has never been surveyed by me, and was put on the chart by guess, that the river Sacramento tended to the northwest. At the time you dotted the margin of the Sacramento river, above the mouth of Feather river, as represented on the chart made out at the time, whether the portion between the dotted lines and the Sacramento river, on the east bank, was intended by Capt. Sutter to be within the survey made? The United States vs. Salter. 35 No, it was not. [The associate law agent objects to all the foregoing testimony, on the ground that the survey to which it relates is of lands entirely without the limits set forth in the title presented in this case.] JOHN J. VIOGET. Sworn and subscribed before me this lTth of October, A. D. 1853. THOMPSON CAMPBELL, Com'r. Filed in office Oct. 17th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 3, page 259. GEO. FISHER, Sec'y. Deposition of R. B. Buchannan. OFFICE OF THE BOARD OF COMMISSIONERS, &C., &c., &c. This day, before Com'r Thompson Campbell, came R. B. Buchannan, a witness in behalf of claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: What is your name, age, and place of residence? My name is R. B. Buchannan; I am thirty-one years of age, and I reside in Marysville. State whether you are acquainted with the character of the land on the margin of Feather and Sacramento rivers, above the junction, and also the lands lying between said margins; and if so, describe the same particularly. From the junction of the Feather river with the Sacramento the strip of land on the east margin of the Sacramento, which is timbered and considered agricultural land, is from a half to a mile in 45 width, and to a line opposite the Buttes, going north from the junction of the Feather river side, and on the west bank of said Feather river for the first nine or ten miles up the Feather river, the agricultural land or timber land bordering on the Tular varying from fifty yards to half a mile; near about that point the Tular turns again from that point, taking the direction of the Sacramento river. The agricultural lands then gradually widen, taking the shape of the Tulare, following up the margin to a line opposite the Buttes; from then east to Feather river it is generally considered high ground, though a great portion of it overflows. The land which I have described as lying between the Sacramento and Feather rivers is tulare, and is in length probably fifteen or twenty miles, and in width an average probably of from six to ten miles. The water overflows it about on an average of about five months, or six, to its utmost extent, and the greatest portion of it is covered with water during the entire year, to the depth of, say, on an average, of about six feet. Questions by associate law agent. State approximately the superficial extent of the dry ground on the west bank of the Feather river, and on the east bank of the Sacra 36 17Te United States vs. Sutter. mento river, between points on those rivers opposite the Buttes and the place of their junction. If confined to the margin of these rivers, there could not be to exceed more than four of five leagues of dry land. What do you suppose to be the extent of dry land fit for cultivation between the Sacramento and Feather rivers, south of a line drawn east and west through the Buttes? There is not more agricultural land probably than what I have stated. The land, after you leave the margin of the Feather river, going over towards the Buttes, is overflown chiefly, and, when dry, is not fit for cultivation. R. B. BUCHANNAN. Sworn to and subscribed before me this 17th day of October, A, D. 1853. THOMPSON CAMPBELL, Com'r. 46 Filed in office Oct. 17th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. Bo, vol. 3, page 257. GEO. FISHER, Sec'y. Deposition of John S. Fowier. OFFICE OF TIlE BOARD OF COMMISSIONERS, dC., J&C., e&C. This day, before Com'r Thompson Campbell, came John S. Fowler, a witness in behalf of the claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: What is your name, age, and place of residence? My name is John S. Fowler; I am thirty-four years of age, and I live at the city of Sacramento. What was the establishment of New IHelvetia, and the extent of its boundaries? The establishment of New Helvetia is land belonging to Capt. Sutter, as conveyed by the Mexican government to him. The southern boundary is, I suppose, about five miles south of the American river, that is, in a direct line. The starting point, which is the southern line, is on the Sacramento river, about five miles from the junction of the American river, in a direct line. The eastern boundary, south of the American river, I should think, was fron: six to seven miles from the Sacramento river; then north of the American river, to the junction of the Feather river; the eastern boundary is one league from the Sacramento river; from the junction of the Feather river to the northern boundary line, I should think the average distance would be a league and a half from the Feather river; that is, the eastern boundary line. From the northern line, on the western side of Feather river, the average distance, running south towards its junction, is about four miles; from the junction of Feather and Sacramento rivers, running niorthward up the Sacramento, striking the northern boundary line on The United States vs. Sutter. 37 the Sacramento river: the distance I should judge to be a mile in width; and that I understood to be the boundary of the land known as New Helvetia, as I have known it since 1848. I would also state, that within the boundaries I have here described there is a considerable quantity of land which is good for nothing, particularly the land lying between the American and Feather 47 rivers, on account of its being covered with water, and what is called tule land. There is a northern line of latitude passing from the Sacramento to the Feather river, striking the north arm of the northeast Butte mountain, which constitutes the northern line of said tract. Do you know anything of the original grant of 1841, and of February 5th, 1845, the first to John Augustus Sutter, by the Mexican government, and the last to said Sutter and son? And if so, state what became of them. I had them both, and they were destroyed in Sacramento city by fire in the month of October, 1851. The fire consumed my office and all its contents, together with said grants. On the 15th July, 1850, Capt. Sutter appointed me as his agent, at which time I received said grants, and all the papers appertaining to said grants. Can you state whether or not the papers on file, marked "A and C," in this, are correct copies of said originalgrant? My answer is, yes, they are. What do you know of the occupation of the Sobrante grant of 1845 by Sutter and Son? I know that in 1848 Sutter was occupying the land between the Feather and Sacramento rivers, having built a very large house, and had large quantities of land enclosed and under cultivation, and he had, I should think, not less than three thousand head of cattle and about twenty-five hundred head of horses, besides hogs, and I think about three thousand head of sheep. He had about one thousand acres under fence for cultivating purposes. I suppose that about 5,000 acres were in a state of cultivation. Capt. Sutter had two places of residence-one at Hock Farm, and the other at the fort. Ever since his family came to the country they have resided on this farm. By the wanderings of the river, the improvement I have spoken of is about twenty-five miles above the mouth of Feather river. When did Nicholas Attgins settle, under whom, and what was the extent of his improvement and cultivation? He settled on Feather river, about ten miles from the junction 48 with Sacramento river. Sutter made him a grant for one mile, or for one league, and I can't remember which. Then he built him a fine residence, and enclosed a considerable quantity of land, and had considerable quantity of stock on it, horses and cattle. The conveyance was made, I think, in 1843, and he has occupied the premises from the time I first knew them, in 1848, down to the present time. What is the extent of the land on the banks of the Feather and Sacramento rivers, not previously overflowed in winter? From the junction of the American with the Sacramento river the 38 The United Slates vs. Sueter. lands on the east side of the Sacramento river, between the Feather and American rivers-that is, good farming land, not injured by the overflows-is from half to three-quarters of a mile in width. The lands from the junction of the Feather and Sacramento rivers, running up the Sacramento to the northern line, the average width of good land is, say, three-quarters of a mile. From the junction of the Feather and Sacramento rivers, on the west side of Feather river, the average width of good land is, say, one mile on an average. From the northern boundary line on the east side of Feather river to its junction, about the same. What is the width of the country of the immediate banks of the rivers which is periodically overflowed? I think the average width of the land which is perfectly worthless, being tule land, between Feather and Sacramento rivers, is from eight to ten miles in width, much after an entire lake, from twelve to fifteen feet deep in high water. Where is the settlement of Cardua, under whom did he settle, and what is the extent of his improvements? Sutter placed him on the land, and made a contract with him for the property. He then built him a large adobe house, and placed stock upon it. As regards his improvements, I know nothing further. I understood the contract between Sutter and Cardeca was made in the year 1844. On which of the said grants is the Hock Farm situated, and by whom was it settled? The Hock Farm is on the second grant, and settlement made by Sutter. 49 Questions by associate law agent. When did you first arrive in California? I arrived at Sutter's fort, I think, on the 16th September, 1847. By what means or authority are you enabled to state that the establishment of New Helvetia embraced the lands described by you as belonging to it? I know it by virtue of the grants made to Sutter by Alvarado and Micheltorena. I have examined the original grants. Were you acquainted with the Spanish language at the time you examined said grants? Enough to enable me to ascertain the contents. How are you able to state positively, as you did in your examination in chief, that the papers marked "A" and " C," on file in this case, are correct copies of the said original grant? From the fact of having examined them last Friday. Be-examined by claimant's counsel. In forming your opinion of the limits you have described as containing New Helvetia, what influence had any map and public reputation ever since you have known that region of country? There was a map purporting to have been made by Vioget, which The United States vs. Sutter. 39 map contains all the land I have described as well as they are described in the grants, which map was destroyed at the same time my office was burnt. I regard the copy on file in this case as a correct copy. I have never heard but one sentiment expressed, and that was that the territory claimed by Sutter belonged to him-that is, the region described as New Helvetia. Question by associate law agent. Are you in any way interested in the result of this petition? I have no interest in the result of the claim in this case. The associate law agent objects to all the evidence given by the witness in this deposition, except so far as it regards the natural features of the lands mentioned, and the occupation of the said lands by John A. Sutter. The remainder of the evidence respecting the extent of the establishment of New Helvetia, and the title of John A. Sutter to the same, is derived from hearsay, and therefore imadmissible, or from documents, of which copies declared by him to be correct, 50 and now before the board, and of the meaning and bearing of which he merely presents his opinion. JOHN S. FOWLER. Sworn to and subscribed before me this 19th day of October, A. D. 1853. THOMPSON CAMPBELL, Com'r. Filed in office October 19th, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 3, p. 262. GEO. FISHER, Sec'y. Deposition of J. D. Marks. OFFICE OF THE BOARD OF COMMISSIONERS, &C., dc. This day, before Com'r Robt. A. Thompson, came J. D. Marks, a witness in behalf of claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: Testimony in behalf of claimant. Present: V. E. Howard, esq., attorney for claimant; R. Greenhow, asst. law agent. In answer to questions, witness states that his name is J. D. Marks; his age, thirty-seven years; he is native of Virginia, and resides at present in city of Mexico. Question by claimant's att'y. Do you you anything of the approval by the supreme government of Mexico of the official acts of Governor Micheltorena while acting as governor of California? If so, state what you know. 40 The United States vs. Sutter. Ans. I do not, of my own knowledge. I have heard various conversations with Governor Micheltorena in August and September, 1852, in which he stated that all his official acts as governor of California had been affirmed by the supreme government. I had also conversations with Senor Romeriz, formerly minister of foreign affairs in the Mexican government, in relation to land titles in California. He stated that under the basis of Tacubaya Micheltorena had full, ample, and extraordinary powers to grant land in California. Question by same. State what you know in relation to the usage and custom of the governors of California to grant lands in consideration of public services, or in discharge of the pecuniary obligations of the government. Ans. I know nothing of the usage and custom in relation to the matter. I only know that Micheltorena had general powers over the subject. J. D. MARKS. 51 Sworn to and subscribed before me this 1st of November, 1853. R. AUG. THOMPSON, Com'r. Filed in office Nov. 1st, 1853. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 3, p. 333. GEO. FISHER, Sec'y. Deposition of Abner Bryan. UNITED STATES OF AMERICA, State of California, ss. SAN FRANCISCO, March 22d, 1854. This day personally appeared before Peter Lott, a commissioner for taking testimony to be used before the U. S. land commissioners in said State, Abner Bryan, a witness in behalf of the United States, in petition No. 92 on the docket of said board, in which John A. Sutter is the claimant, and being duly sworn, deposed in English as follows: Questions by J. I. McKune, U. S. law agent. 1st question. What is your name, age, and place of residence? Ans. My name is Abner Bryan; my age, 52 years; my residence, Santa Clara Co., California. 2d question. Are you acquainted with the land on which the city of Sacramento stands and that vicinity; if yea, how long have you known it? Ans. I am acquainted with it, and have been acquainted with that place since the month of November, 1845. The United States vs. Sutter. 41 3d question. Do you know the place called the Three Buttes? Ans. Yes; I am acquainted with the mountains of that name, standing by themselves out in the valley, above Hock Farm, between the Sacramento and Feather rivers. 4th question. What distance are these Buttes from Sutter's fort, at New Helvetia? Ans. It is called about 45 or 50 miles; I think it is about that distance by a tolerable straight road. 5th question. How far would it be on a straight line running east and west, passing through the Buttes from Feather river to the Sacramento river? Ans. About 15 or 20 miles. 6th question. How far is it from the mouth of Feather river to the Buttes? Ans. I am not so familiar with that distance; think it is from 12 to 15 miles. 7th question. How far is it from Sacramento river to Feather river, on a due east and west line drawn from river to river, halfway between the mouth of Feather river and the Buttes? 52 Ans. Not less than eight nor more than twelve miles; the distance is about the same-some narrower, I think, than the distance of the line running through the Buttes; I lived in that section of the country from May to November, in 1846, and hunted through the Buttes that year. 8th question. Do you whether the country lying east of the Sacramento river, and between the mouths of the American and Feather rivers, is subject to overflow? Ans. It is subject to periodical inundation during the rainy season; in the dry season it is not overflown; it is a flat country, with sloughs running through it. 9th question. Is the land lying between the Sacramento river and Sutter's fort, and the land on which Sacramento city stands, also subject to inundation? Ans. It was occasionally inundated; the levee now, I suppose, keeps the water out; it was not so much subject then to inundation as it was above the American fork; the land there I think a littl higher than above the American foik. 10th question. In 1845, when you arrived at Sutter's fort, hot many families had he, Capt. Sutter, permanently settled there unde his protection or jurisdiction in Sacramento and Feather river valleys? Ans. At Cardeca's, who then lived where Marysville now stands there was a family living; Jack Smith lived on the east side of YuL river, and had a squaw wife; Nye lived just below Smith, east side Yuba river; at Nicholas there was a Dutchman, who had a wife; tl Dutchman came in the same year I did, and stopped there some tim, afterwards went away; next below Nicholas, which is on the Feath( river, just below the mouth of Bear river, was on the American fo1 a settlement called St. Clair's; Sinclair had a family, and in an, about the fort there were a great number of families; I can enume 42 The United States vs. Sutter. rate the names of 13; they were all hired by Capt. Sutter to work; there were men, women, and children there, whom I did not know; many of them went away; I remember some families of my acquaintance, who left there and scattered off up the country; I knew but one family that appeared to be permanently settled there, and 53 that was Montgomery's; the 13 families I speak of included Gardner, Smith, Nye, Nicholas, and the Frenchman who lived at Smith's. 11th question. How many of those thirteen families came into the country in 1845? Ans. Seven or eight. 12th question. How many of them left Capt. Sutter's claim in 1845? Ans. Three families left in 1845; we arrived about November, 1845; some of them came in ahead of me; the others left in 1846, in April; some went to Oregon, four families; Minier went with his family up to Lassin's ranch, on Sacramento river. 13th question. Where did Sinclair live? Ans. On the north side of the American river, about two mile, from the fort, on what was called Grimes's ranch, and more com monly Sinclair's ranch. 14th question. Besides those you have named, were there any other settlements on Capt. Sutter's claim? Ans. I know of none others than those I have named at that time. 15th question. Could there have been any other permanent settlements on that claim without your having known it at that time? Ans. It might be possible, hardly probable; I was well acquainted there. 16th question. Was there any family settled between the Sacramento and Feather rivers and the Buttes? Ans. I think there was not, except the Hock Farm; Major Hensley went there; I found him there in 1846, in April; there was a man there before Hensley; Capt. Sutter had him there; I think his name was MacKinley or Kinlay; he had a family; I forgot that family in my answer to the 10th question; that man stole some mules and went fway. 17th question. When did Capt. Sutter go to Hock Farm to reside? Ans. I cannot say; he had not his family in this country then, and he passed back and forth so much between the fort and Hock Farm that I do not know when he went there to reside; I think it was after the troubles of the country in 1846. 18th question. How many sons had Capt. Sutter? Ans. Capt. Sutter had no son in the country, to my knowledge, at that time. Cross-examined by Mr. Howard, for claimant. 1st question. When did you leave the grant of land claimed by Capt. Sutter, and where did you go? Ans. In the month of January, 1846, I left there and went to Leidsdorff's, ten miles up the American fork from the fort. The United States vs. Sutter. 43 2d question. How many persons were there living at 54 Sutter's fort when you arrived there in 1845? Ans. Of white people, I suppose there were more than 100; I should say there were 20 or 30 men there who had no families. There were 13 families there that I knew, and some 8 or 10 more that I was not acquainted with. 3d question. Who was Gen'l Castro, of whom you were speaking? Ans. He was the man who was said to have the command of the Mexican troops here at that time. 4th question. What order did he give respecting the American settlers, and when did he give it? Ans. In the latter part of November, or early in December, 1845, an order was left at Capt. Sutter's for all Americans, who were not naturalized citizens of California, to leave immediately; this order was posted on Capt. Sutter's door. 5th question. How much land had Capt. Sutter under cultivation at Hock Farm, in 1845, when you arrived in the country? Ans. I became acquainted with the Hock Farm in 1846; he had as.much as 100 acres in cultivation then, which had also been cultivated in 1845. 6th question. How much was in cultivation at New Helvetia, in the neighborhood of the fort, at that time? Ans. I think 200 or 300, and possibly 400 acres; there was a great deal; I think there must have been 400 acres. 7th question. Did any of the families above the American fork, those families you have been speaking of, have lands in cultivation, and how much? Ans. Nicholas had, I think, about 10 acres in cultivation then; Nye had some, I do not know how much; Jack Smith had some 40 or 50 acres; and Cardeca had a large farm, I cannot say how many acres. Nye and Smith had an arrangement with Sutter about their occupancy then; and, as I understood, Cardeca had also. 8th question. Was the land on the immediate banks of the Sacramento and Feather rivers higher than the back lands? Ans. In some places it is, and in some it is not. 9th question. Where is most of the land that is fit for cultivation in Sutter's claim situated? Ans. I should say running due east from Fremont, the bigger portion would be north of that line. 55 10th question. What months do you understand to be embraced in the rainy season in this country? Ans. Generally, December, January, and February. 11th question. To what extent is is the extent of country from the fort to the Buttes overflowed in the rainy season generally? Ans. There is a good scope of it overflown there every year, both )n the banks of the rivers and back from the river. I should say, in he country between Nicholas and American fork, one-half of the'ountry is overflowed in the wet season in ordinary years. 12th question. How much is overflowed between the Sacramento.nd Feather rivers, among the tulares? 44 The United States vs. Sutter. Ans. A strip from half to a mile wide is generally overflowed in the rainy season; the land below, between the two rivers, is sometimes dry and sometimes all overflowed; I mean between the Feather and Sacramento rivers. Re-examined by law agent. 1st question. Of the hundred white persons you speak of as being at the fort in 1845, how many came there in 1845? Ans. The greater portion of them came there in that year. 2d question. How many of them were there as late as July, 1846? Ans. Some six or eight families remained at the fort in 1846; it was during the war. The men went out that year with Fremont and others to fight, and began to return in the fall of the year; there was some 4 or 5 families that did not go into the fort; the families in the fort went there for protection. ABNER BRYAN. Subscribed and sworn to before me March 22d, 1854. PETER LOTT, Commissioner for taking testimony, &c., d&c. Filed in office March 22d, 1854. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 4, p. 92. GEO. FISHER, Sec'y. Deposition of H. E. Robinson. UNITED STATES OF AMERICA, State of California, ss: SAN FRANCISCO, March 22d, 1854. This day personally came before Peter Lott, esq., a commissioner for taking testimony to be used before the board of U. S. land commissioners of said State, Henry E. Robinson, a witness on be56 half of the United States, in case No. 92 on the docket of said board, in which John A. Sutter is claimant; and the said Henry E. Robinson being duly sworn, deposed in English as follows, to wit: Volney E. Howard, esq., attorney for claimant, is present. Questions by U. S. law agent. 1st question. What is your name, age, and place of residence? Ans. My name is Henry E. Robinson; my age, 40 years; my present residence, at Sacramento city, California. 2d question. Are you acquainted with John A. Sutter; if yea, how many years have you known him? Ans. I am; I have known him since about the latter part of 1849, or early in 1850. The United States vs. Sutter. 45 3d question. Do you know, from conversation with him, or from any other source, when his family came to California? Ans. I have had no conversation with him on that subject, and do not know when his family came to this country. 4th question. You were directed to bring here with you a certain deed from said John A. Sutter to yourself and others. Have you the deed with you or in your possession? Ans. I have not the deed in my possession; it was destroyed by fire, to the best of my knowledge and belief. 5th question. What is your judgment of the distance from Sacramento city to the Three Buttes? Ans. I have no means of knowing the distance; the distance I do not know. Cross-examined by V. EH. Howard, esq., counsel for the claimant. 1st question. Have you been up and down the banks of the Sacramento and Feather rivers? Ans. I have, often. 2d question. How wide is the strip of land, on an average, on the banks of those rivers not periodically overflowed in the winter? Ans. The width is very narrow, as far as I have been able to observe; perhaps about one mile on each side. 3d question. What is the character of the land back of this strip from the river generally? Ans. On Feather river, as you descend the river, the land rises as you go back from the river on the lower Sacramento; the land back from the river is lower and swampy; opposite of Stacramento there is a large marsh called the Tuie swamn-, somle six or eight 57 miles in width; on the west bank of Feather river there is a comp[aratively elevated piece of land; there is also a very narrow strip of land higher than the neighboring lands. On the east bank of the Sacramento, above the mouth of Fetather river-I mean by this, that in the tongue of lands between th o two rivers-there is a narrow strip bordering on each river higiher than the intermediate lands, which are nearly all swampy or tula lands, as far up as the Butte mountains, or in that neighborhood. These low lands are subject to inundation. The chlaracter of the land on the Sacramento river, between Sacramento city and the mouth of Feather river, is much like those I have mentioned; there is a narrow strip of land, from half to three-quarters of a mile, on the east side of the banks of the river-timbered land, not periodically overflown in the winter. Back of that, for about two miles, there is a lagoon and tula lands; there the land rises as it runs back to the mountains. 4th question. How much of this strip of land down the Sacramento and Feather rivers is susceptible of being used for agriculture in years of ordinary freshet? Ans. None, except the high lands to which I have already referred. 5th question. Are you acquainted wvithi the boundaries of Sutter's (fort) grant. below the American fork? 46 lThe United States vs. Sutter. Ans. No; I don't know anything of the boundaries. 6th question. Can you state the average width of Sutter grant below the American river, and back from the Sacramento river? Ans. Only from the map which I have seen; and I do not recollect distinctly the map, though I have examined it. I think, from the map I examined, the southern boundary was fixed a few miles south of Suttersville; it runs out in an easterly direction, and the northeasterly to the grant of Leidsdorff. I cannot say as to the width, for I do not know the distance. Re-examined by U. S. law agent. 1st question. Is there any part of this land above the mouth of the American and bordering on the Sacramento and Feather rivers which is not subject of overflow by the influx and currents of the rivers during the rainy season? If yea, state what portion. Ans. There are portions of the land not subject to overflow, 58 to the best of my knowledge and belief; the latter branch of the question I cannot answer as to the quantity. 2d question. What do you mean by periodical overflow of these lands? Ans. I mean annual inundation in the winter from the melting of the snows, and rains. 3d question. Are they not frequently inundated from these causes? Ans. Portions of them are from extraordinary high floods, but what portions I can't state. The strip of land bordering on the east bank of Sacramento river, between the mouth of Feather river and Sacramento city, I have seen chiefly all overflowed in extraordinary high freshets. HENRY E. ROBINSON. Subscribed and sworn to before me on the 30th March, A. D. 1854. PETER LOTT, Commissioner for taking testimony, &c., &c., &c. Filed in office March 30th, 1854. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 4, page 127. GEO. FISHER, Sec'y. Deposition of John Bidwell. UNITED STATES OF AMERICA, State of Califbrnia, ss: SAN FRANCISCO, May 9, 1854, This day personally came before Peter Lott, a commissioner for taking testimony to be used before the board of the U. S. land commissioners in said State, John Bidwell, a witness on behalf of claimant, The United States vs. Sutter. 47 in case No. 92 on the docket of said board, wherein John A. Sutter is claimant; and said witness being duly sworn, on oath deposed in the English language as follows, to wit: The U. S. law agent is present. Questions by attorneyfor claimant. 1st question. What is your name, age, and place of residence? Ans. My name is John Bidwell; my age, 34 years; and my residence, Butte county, California. 2d question. How long have you resided in California, and where during the first years of your residence here? Ans. I have lived in California since 1841; the first 14 months at Bodega, north of this, on the coast; after that at Sacramento; and in the valley most of the time till 1846. The point where Sacramento now is was then called New Helvetia. 3d question. Can you state how many families were settled there under Capt. Sutter, and about what time they were so settled? 59 Ans. In 1841, when I arrived there, John Sinclair was settled there, on the south side of the American fork, with his family. Another man, named Makaina, was settled between the fort and the Sacramento river. James Bruchum lived at the Sheep ranch at the lagoon, with his family, about two miles below Sacramento; another man, named Leinhard, was settled and cultivating a tract between the fort and the mouth of the American river; Allen Montgomery lived with a family on the south side of the American fork; Perry Macoon and his family also; Henry Bee and wife, Flinglan and wife, (a blacksmith,) John Chamberlain and wife, William Daylor and wife; Black, a hatter; Atkinson, a hatter; and the Kanakers with their wives, Harry Footooi, and Jun: all these persons were settled in and about Sutter's settlement between the years 1841 and 1845. Sinclair, Maakama, Ber, Brseheim, Fling, Chamberlain, Daylor, and the three Kanakers, were all there in 1841, and Perry Macoon and G. F. Wyman also. I was not at the fort in 1842, and in 1843 I was not much there; I was living that year at the Hock Farm. In 1844 and 1845 the persons I have named were most of them remaining there, except occasionally absent of some who might have been moving about. There were a good many others living at the fort, but these were mere transient; it was a general rendezvous and headquarters of travellers and new-comers, also of trappers. I recollect a trapper named M. Nicau who was there in 1841, and made it his home. In 1841, in addition to those I have named, I should siy there were as many as 20 or 25 single men iving at New Helvetia. 4th question. About how many men were there living at New Helvetia in 1844; previous to June of that year, how many people altogether? Ans. I should say not less than 30 or 40 men, and the entire population could hardly have [been] less than 50 or 60 persons, though I cannot state accurately. 48 The United States vs. Sutter. 5th question. What was the population in 1845 and 1846? Ans. They were not less than in 1844, but during the summer of 1845 a large party left the fort on a trapping expedition to the mountains; they returned in the fall to New Helvetia. 60 6th question. State if you remember any other persons settled under Sutter on this grant within the years before mentioned. Ans. On Feather and Bear river and Yuba river, Nicholas Altgun, Theodore Candece, and N. C. Nye, were settled in 1843, the last from 1843 to 1846; Jack Smith and G. Patterson in 1845; also Theolore Sicara, E. Dupont, J. Vevo, Pablo Gutiernez. James Smith had lived at Bear and Feather rivers, but resided at New Helvetia. I forgot to mention a man by the name of Bartlett, who lived at the fort in 1841. There were other persons, more transient, who lived there; I remember one man, named Cortau, and one Baptisto Ruello, and a German named Henry; I do not remember his full name. One Charlie Pufushauser lived there till 1843. These are all I at this moment recollect; I am aware I must have forgotten some names. 7th question. What was the treatment of Capt. Sutter towards the Indians in his neighborhood? Ans. He employed many of them to work for him, and always paid them well and treated them very kindly. He employed them also in various trades; his treatment was uniformly kind towards them. 8th question. What was the effect of the establishment of the fort and settlement of New Helvetia by Capt. Sutter in preventing Indian depredations and protecting the frontier? Ans. The effect of his settling there was the subjugation of large bands of Indians, and the rendering them peaceable and friendly, who had previous to that time been hostile and very troublesome to the Spaniards; and, indeed, his fort and influence was the only protection the country had on the northern frontier against the incursions of the Indians. 9th question. How many civilized and christianized Indian families were settled at New Helvetia under Captain Sutter in 1841, and from that on to 1846? Ans. In 1841 I should think not less than 20 or 30, and that 61 number from time to time increased. Tihpse are exclusive of the former settlers I have named in this deposition. 10th question. Did you know any natural boundaries as the northern and southern limits of Sutter's grant? Ans. The southern line of Sutter's land then was understood to be a line running east and west through the lagoon, or a little south of the of the lagune, about 3 or 4 miles south of wvhe e Sacramento now is. The northern limit was a line running east and west, so as to include the Three Buttes, as I understood it. The United States vs. Satter. 49 Cross-examined by U. S. law agent. 1st question. What amount of land do you understand to be ineluded in the Sutter grant, between the limits you have named and according to the map now shown you, marked "B," and filed in this case? Ans. The length of it must be, in a direct line, not far from 40 miles, from the top of the Buttes to the southern line I have named. Capt. Sutter did not claim all the land embraced in the map. It used to be called 20 miles from the fort to the mouth of Feather river by the road we travelled, and some 30 miles from there to the Buttes —but that was not a direct course. I think the average width of the country embraced in this map may be 15 miles. Capt. Sutter did not claim all the land embraced in this map. 2d question. How much country is embraced in width within the outside edges of the paper on which the map is made, measuring between the black lines at the edges of said paper? Ans. I should think it would be nearly 40 miles; but the Sierra Nevada should come within the limits of this map at the upper part of the map, not at the lower part. 3d question. What is the eastern limit of Capt. Sutter's claim? Ans. I always understood him to claim within three leagues east of the Feather river. I do not know that he claimed all up to that distance; but to the best of my knowledge he never claimed beyond that distance. 4th question. State if you know what and how that limit was established. Ans. There was a certain tree marked on the south line (or side) of the American fork, about three leagues east of the Sacra62 mento river, which I saw; that is the only mark I ever saw, as a landmark, on that boundary. I am quite certain that Mr. Sinclair pointed out that tree to me, and informed me that Capt. Vioget, who made the survey for Capt. Sutter, marked it as a boundary landmark. That is all I know about the establishment of that boundary. The land west of that point was occupied by and always recognised as belonging to Capt. Sutter. 5th question. What was the boundary on the east of Capt. Sutter's land, north of the American fork? Ans. The only point I have ever known as marking the boundary north of the American fork was the mouth of a creek which emptied into Bear river-a small creek, which was dry in summer —that was the recognized limit of Capt. Sutter's claim in that direction; between that and the American fork was a desert waste, on which I never knew of any landmarks being established, or any natural objects existing which were noticed as such. 6th question. If a direct line be drawn from the mouth of the creek you have named Bear river to the marked tree named on the American fork, how much land will be embraced between that line and the Sacramento and Feather rivers, with the Bear river and American fork for the other boundary? [REC. CCLVIII, D. T. 1862.]-4 50 The United States vs. Sutter. Ans. I should think 200 sections at least; all of which is overflown in winter, and is desert and waste lands, nearly all of it. It would embrace nearly all the Rancho del Passo. 7th question. What establishments had Capt. Sutter on the Pacific coast in 1840 and 1841? Ans. He purchased the Russian settlements there about the time I came to the country, in 1841. I went there to take charge of the property, and assist in moving it to Sacramento; all that Capt. Sutter required was removed then to New Helvetia. I knew nothing about his title to the land on the coast, but understood that he had purchased all the rights which the Russians had there. 8th question. How many sons had Capt. Sutter; when did they come to California; and how old were they, respectively, when they came? Ans. I have seen three of his sons. The oldest came to California, I think, in the fall of 1848, and was 21 years of age, I believe, when he arrived; the others arrived afterwards, I think within a year; 63 their ages I do not know, only that they were younger than the first named. 9th question. Have you ever seen the grant under which Capt. Sutter claimed to own his land? If yea, state what was named therein as the eastern boundary of the grant. Ans. I am not positive that I have ever seen his original title, though I think I have; I do not remember what were named as the boundaries. I think I recollect the "margins of Feather and Sacramento rivers" as being words used denoting the locality of the land. 10th question. Do you know where Sinclair's house was in 1841, and how far from the mouth of the American fork? Ans. I think it was between four and five miles, on a straight line from the mouth of the American fork. 11th question. What time did Sinclair settle there; how long did he remain; what was the character of his settlement, and how do you know he settled under John A. Sutter? and state your means of knowledge. Ans. All that I know as to the time of his settlement is, that he had a house, and was living there in 1841, when I arrived in the country. I saw him there again in 1843, and he remained there till 1844, when he removed to the other side of the river. I know nothing of the terms of his settlement with Capt. Sutter, or under him. I do not know what the bargain was; I do not know that there was any bargain made between them. I have always heard Capt. Sutter speak of Sinclair as one of his settlers. (The last statement of the witness objected to by law agent as hearsay testimony.) 12th question. Answer the same questions concerning each of the following named persons: Makaina, James Bruheim, Leonhard, Allen Montgomery, Perry McCoon, Henry Bee, Fling, John Chamberlain, William Daylor, Black, Atkinson, the three Kanakas, Nicholas Altgein, Theodore Cordua, W. C. Nye, Jack Smith, G. Patterson, The United States vs. Sutter. 51 Theodore Sicard, E. Dupont, J. Vevo, Pablo Gutiernes, Bartlett, Babtiste Ruello, Harry (a German,) and Charlie Perfinhousen. Ans. Makaina lived between the fort and the river; cultivated a piece of land there, and I think staid there till he died, in 1845. Leenhart went there and occupied the same ground after Makaina died. 64 So far as Makaina and Leenhart were concerned, I do not know anything of their bargains with Capt. Sutter. It was a matter of general understanding at the time that they were settled under Capt. Sutter, but upon what terms I never understood. James Brunheim was on Feather river in 1841, and I think remained there till the war broke out-that is, remained on Sutter's grant; he went south to the neighborhood of the Laguna about 1843. I do not know what his terms with Sutter were. He was taking care of hogs for a share, I think. Allen Montgomery came in 1844, and settled there in 1845. Capt. Sutter gave him a piece of land on the American fork. I think he remained there till 1847 or 1848. Perry McCoon came when Montgomery died, and left, I think, in 1847. Capt. Sutter let him and Wyman have a piece of land which, I think, they shared between them. Harry Bee was living at the fort in 1841; I do not remember when he went away. He lived in the fort with his family. I do not know of his having any land assigned to him. Fling, Chamberlain, and Daylor were all on the same terms, living at the fort. I do not remember when Fling went away. Chamberlain went away in 1846, I think; Daylor went on to his ranch in 1844, I think. These last three lived under Sutter at the fort. I do not know of their having land assigned to them. Black and Atkinson were hatters, and had a house on the south side of the American fork. I do not know their terms of settlement. There were some lots laid out on the American fork like town lots, and I think Beach and Atkinson claimed the lots on which they lived; nearly all these selected some of these lots; I selected one myself. I considered myself a settler there for a long time, and we expected Capt. Sutter to give us lots. The three Kanakas were, in 1841, all there; they staid there. Tootooi died there. Jim left about 1845 or 1846, I am not certain, and Harry staid as long as Capt. Sutter did. Nicholas Algier lived on Feather river. I first saw him there 65 in 1843; he has lived there ever since. Capt. Sutter gave him a piece of land there; I made the papers myself. The Kanakas were under Sutter; whether they had any particular land assigned to them, they cultivated their gardens. Cordua went there in 1842, and settled where Marysville now is; he staid there, I think, till 1849; he was under Sutter; he often told me so; he cultivated extensively. Chas. W. Flagg, a man I forgot in my former answer, came and was partner of Cordua, with the permission of Capt. Sutter. M. C. Nye was there in 1843; Sutter assigned him a piece of land on the south side of Yuba river in 1845; I believe he also held a piece on the east side of Feather river, not 52 The United States vs. Sutter. far from Hock Farm; he staid till about 1849 or'50. Jack Smith and George Patterson settled together in 1845; they staid till 1847; they settled under Sutter. I do not remember whether Sutter gave the land to both, or only one of them; they had several hundred head of cattle and cultivated land. Sicard and Dupont settled, I think, in 1842; I saw them there in 1843, on the west bank of Feather river, just below the Hock Farm; they were getting out lumber, most of them; I do not know of what terms they were settled; they went away, I think, in 1844 to the fort, and staid there till 1845; Sutter bought the timber of them as they got it out. Vero settled in 1845 on Bear river; I believe Capt. Sutter gave him land on Bear river; I am not certain. He lived a good deal at the fort, and was under Sutter; I believe he went away in the fall of 845, possibly in 1846. Pablo Gutierez I saw first in 1843; he was on the Feather river, west bank, about three miles from Hock Farm; he staid there till the spring of 1844; when I saw him he was breaking colts for Capt. Sutter; he had a temporary house, such as were usually built by the Spanish for summer; he had a wife; he was killed while in Capt. Sutters service in 1844; he moved, and made a small house on a piece of land adjoining Capt. Sutter on Bear river; he made application for a grant to himself; he staid there but a short time, and he was called by Capt. Sutter to take an express below, and on that errand he was killed. 66 James Smith was with Capt. Sutter when I came in 1841; he was most of the time at the fort; Capt. Sutter gave him land in 1845 on Feather river; he remained there till 1847 or 1848. Bartlett was there in 1841, and was drowned in 1843; he was sailing Capt. Sutter's launch mostly, and made his home at the fort; I do not know that he ever had any land assigned to him. Rulle came in 1843; I think he left in 1845 or 1846; he first lived at the fort; afterwards on Feather river; I do not know whether any lands were assigned to him by Capt. Sutter or not; I do not know upon what terms he lived upon Feather river; when at the fort he was working, and helping a harvesting. Henry (the German) and Chas. Perfenhausen lived with Cordeca where Marysville now is; I saw Perfenhansen in 1843; I think he was with Sutter from 1841 till that time; Henry came in 1844; I think he left in the spring of 1846 or 1847. Perfenhausen went to Oregon in 1843; I don't know upon what terms they were settled. I remember another man named Brown, who lived at the fort in 1841 when I came; he died there in the winter of 1844 and 1845 at the fort; I was absent when he died; he lived there; I don't think he had any land assigned to him, his business was to take care of all the fences; he was in Sutter's employment in 1841; after that, I do not know whether he was or not; I do not know the terms under which he lived there. 13th question. In what capacity did the persons mentioned in your answer to questions 4 and 5 reside at New Helvetia, such as you do not name? Ans. They were chiefly persons who were working there at various The United States vs. Sutter. 53 kinds of trades and employments under Capt. Sutter; some were coming and going; others made it their home, but not so permanently as those I have named as settlers there. Re-examined by claimant's attorney. 1st question. Where was the tillable land within Sutter's grant situated? Ans. On the south bank of the American fork, embracing a bottom of about two miles in extent, I think, and both banks of the 67 Feather river generally, in a very narrow strip along the banks; most of the places but a few rods in width of the dry land on Feather river, and also on Yuba river; the bottoms there, though in high water, were badly overflowed; X of a mile on each side of the river was good tillable land, but badly overflowed in winter. There is, I think, a couple of miles on the north side of the American fork, in del Passo, of good tillable land, and I should think two miles on the south side of Bear river. 2d question. What is the character of the rest of the land in Sutter's grant as to being swampy and overflowed? Ans. Most of the remainder, besides what I have mentioned, is what is called overflowed lands, subject to periodical inundation, and unfit for cultivation, except some portions which are dry, but barren and unfit for use. Cross-examined again by U. S. law agent. 1st question. From a point on the Sacramento river, 6 miles south of the American fork, to a point on the Feather river, at the mouth of the Yuba, is not the scope of the country extending east from the Sacramento and Feather rivers, one mile to a line running parallel with the rivers, subject to overflow? Ans. No, it is not quite all subject to overflow; and in case of the bluffs at Suttersville, and a small strip along the bank of Feather river below Nicholas, and about one-half or two-thirds of the bank above Nicholas, back of the narrow strips I have named, and within the scope I have named, I should think one-half of the whole of the land above Nicholas and the mouth of the Yuba river is not overflown. JOHN BIDWELL. Subscribed and sworn to before me this 9th day of May, 1854. PETER LOTT, Commissionerfor taken testimony, &c., &c., &c. Filed in office May 9th, 1854. GEO. FISHER, ISecretary. Recorded in Ev. B., vol. 4, page 378. GEO. FISHER, Sec'y, 54 The United States vs. Sutter. 68.Deposition of Sam'l Kyburz. UNITED STATES LAND COMMISSIONER'S OFFICE, San Francisco, June, 24, 1854. On this day, before Com'r Alpheus Felch, came Sam'l Kyburz, a witness in behalf of the claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: Questions by Mr. Howard, att'y for claimant. 1st question. Please state your name, age, and place of residence. Ans. My name is Sam'l Kyburz; my age, 44 years; and I reside at Sacramento city, California. 2d question. Are you acquainted with the rancho called New Helvetia, claimed by John A. Sutter in this case; if yea, how long have you known it? Ans. I have been acquainted with the rancho since October, 1846. 3d question. How many families were settled on the land in October, 1846; what were their names, and under whom did they settle? Ans. There were twenty-one families who were settled on the rancho before 1846, or who when I arrived in October, 1846. They were some nineteen families who moved on between the time when I arrived and the first of January, 1847. The persons who lived on the lands when I arrived in October, 1846, were Nicholas Allgur, John Hinckley, Montgomery, McDowell, Lehigh, James Smith, John Smith, Cardua, Harry McCoon, Cadel, Nye, Kaser, Maintap, Grayson, Joseph Vevo, Cigard, Gondrow, and a man whom they called Harry, and an old Spaniard, whose name I do not know. Thirteen of the above-named persons owned land; all who were named above were men of families, and all had their families there with them. 4th question. How many of the settlers above named received lands of said Sutter? Ans. Thirteen of them that I know. 5th question. State the names of any families that settled on said rancho after you came there in 1846. Ans. Mr. Burnnet, Mr. Sturzenagger, Mr. Qucy, Mr. Lenox, Mr. Hatter, Mr. Glover, Mr. Montril, Mr. Howell, Mr. Kesebug, McKinchew, McCracken, Dr. McKencken, Mr. Weemer, Curtis, McDaniels, Zeuys, and myself. There was also another, who was the son-in-law of Mr. Howell, whose name I do not remember. These all moved on after I went there and previous to January, 1845. 69 6th question. Do you know whether any of these received land from said Sutter? Ans. I do; five of them did to my knowledge. 7th. question. How much land is there not so overflown and rendered swampy as to be unfit for cultivation within the claim of Sutter, as represented on the map in this case, between the lake or lagoon below Sacramento, the Buttes or Two Peaks, the margins of Feather and Sacramento rivers? The United States vs. Sutter. 55 Ans. I think there is not over twenty-eight leagues of the land which is fit for cultivation. 8th question. How much land is there within said limits which is not overflown by the swelling or impulse of the current of the rivers? Ans. I do not think there is over eight or ten square leagues of it that does not overflow. 9th question. At what season of the year does it overflow, and how is it caused? Ans. It overflows from December to the middle of April, and sometimes the first of May. It is caused by the heavy snows in the mountains and heavy rains, It overflows as often as every third year. 10th question. How much land is there within the grant, as represented on the map, above the regular periodical overflow of each winter? Ans. I should think there were some twenty-eight square leagues that does not overflow every winter; think it is from twenty-five to twenty leagues. 11th question. What have been your means of knowledge of the character of this country? Ans. I have been overseer there for Capt. Sutter, and my business has been out over the rancho from October, 1846, to May, 1848, and again from January, 1851, to May, 1852; I have been often over the land. Questions by Mr. McKune, law agent. 1st question. Were any of those settlers whom you have mentioned settled within the following description: eleven square leagues of land, bounded on the north by the summits sometimes called the Three Buttes; on the east by the borders of Feather river; on the south by the Feather and Sacramento rivers, and on the west by the river Sacramento? If yea, which of them? Answer. There were none of them within those limits, except 70 Harry, who lived at a place called Hock Farm, which is now Capt. Sutter's residence. 2d question. Was the land in and about the city of Sacramento subject to overflow by the floods? Ans. It was. 3d question. How waslit on the immediate bordersof the Sacramento and Feather rivers, above Sacramento city? Ans. It was likewise subject to overflow in the high stage of water. Questions by Mr. Howard. 1st question. Where were the families residing whom you found there in 1846? Ans. They resided between the northern line of the grant as laid down in the map filed in the case, or the Buttes, and the southern line as there laid down on the Laguna; most of them also lived between the American and Sacramento rivers. 56 Tlie United States vs. Sutter. 2d question. What is the average width of the land which is usually cultivated along the banks of the Sacramento and Feather rivers? Ans. From forty rods to ten or twelve miles. SAMUEL KYBURZ. Subscribed and sworn to before me this 24th day of June, 1854. ALPHEUS FELCH, Commissioner. Filed in office June 24th. 1854. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 4, p. 652. GEO. FISHER, Sec'y. Deposition of John A. Sutter. DISTRICT COURT OF YUBA COUNTY, ss: CHARLES COVILLDEED et al. ads. April term, A. D. 1852. STEPHEN J. FIELD. J John A. Sutter, being duly sworn, deposes and says: I reside at Hock Farm, in Sutter county. I am acquainted with the parties in this case. I was at one time the owner of this ranch about Marysville and vicinity. I held it by grant of the government of Mexico. That grant was in writing. The original grant is lost; it is recorded in Sacramento city, and is also in the archives of Monterey. I claim this grant of the Mexican government. I recollect the year in which I first went into the occupancy under the Mexican grant. I X1 leased this ranch to Cordway, I think it was in 1843. Corderay resided here as my as my tenant from 1843 to 1858. Corderez put adobe houses, and had a large field ditched and enclosed within the present limits of the city of Marysville. This claim was respected as my property by the people, according to the customs of the country. Nye, Foster, and Covilland purchased the lease of Corderay, and afterwards purchased my interest. The deeds were executed. Cross-examined. I claimed this ranch from both grants. I was present at the execution of the deed dated July 8th, 1850, from Anna Eliza Sutter, Emil V. Sutter, and William Alphons Sutter, to Henry E. Robinson, John J. Foster, Eugene F. Gillispie, and John McDougall, witnessed by Wm. W. Warren and G. W. Laurence, as appears in the Deed Book No. 3, pages 250, 251, and 252, in the recorder's office of the county of Yuba. The recitals in said deed are correct; said deed made in the name of the children, and for the benefit of myself and children. I have four children, the oldest having no benefit of this. One of them is 16 years old, another 24, another between 22 and 23, and the other about 20 years old. My oldest child arrived in this country in 1848, The United States vs. Sutter. 57 and the others arrived two years ago last February, 1850. They arrived from Switzerland; they are natives of Switzerland. The second grant was not confirmed by the departmental assembly of the government of California. The city of Marysville was embraced in my grant. JOHN A. SUTTER. Subscribed and sworn to before me this 17th day of April, A. D. 1852. M. V. B. DANLY, ^ ~[SE AL.]V Notary Public, Yuba County. STATE OF CALIFORNIA, County of Yuba, ss: I hereby certify the above to be a correct copy of the deposition of John A. Sutter in the above cause, now on file in my office. In witness whereof, I have hereto set my hand and affixed the seal SEbL.] of the court this 17th day April, A. D. 1852. [-^ ^~ AL.]CHARLES LENDLEY, Clerk, 72 By M. V. B. DANLY, Deputy. Filed in office July 18, 1854. GEO. FISHER, Sec'y. Deposition of Joseph Clough. UNITED STATES LAND COMMISSION, San Francisco, July 18, 1854. On this day, before the commissioners sitting as a board, came Joseph Clough, a witness in behalf of the claimant, John A. Sutter, in case No. 92, who, after being duly sworn, deposed as follows: Questions by counsel for claimant. 1st question. State what you know in relation to the recording of the Spanish document now shown you. Ans. About April, 1851, I was employed by the recorder of Sacramento county to copy into his books the original grant from the Mexican government to Capt. Sutter of eleven leagues of land. This paper is a copy of that original grant, with the exception of a few quite unimportant variations in the orthography of a few words. 2d question. Will you state whether at that time you were acquainted with the signatures of Alvarado and Jimeno, and your means of knowledge? Ans. I was, having seen them several times attached to grants of land. 3d question. What was your opinion of the genuineness of those signatures attached to the document which you copied? Ans. I had no doubt of the genuineness; the paper bore every mark of originality. 58 The United States vs. Sutter. 4th question. What became of that document? Ans. I have every reason to believe that it was burned with Col. Zabriskie's office in the fall of 1851, in Sacramento city. Cross-examined by U. S. law agent. Did you ever see Gov. Alvarado or Jimeno write? Ans. I never did. 2d cross-int. What are those marks of originality spoken of in your answer to the 3d question? Ans. The shape and quality of the paper, the two government stamps thereon, one for the years 1839 and 1840, and the provisional one for 1841 and 1842, the different handwritings in the instrument, the peculiarity of the writing, and different inks. JOSEPH CLOUGH. Subscribed and sworn to before the commissioners sitting 73 as a board this 18th July, 1854. GEO. FISHER, Sec'y. Filed in office July 18th, 1854. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 5, p. 177. GEO. FISHER, Sec'y. Deposition of Jacob P. Leese. UNITED STATES LAND COMMISSION, San Francisco, July 18th, 1854. On this day, before the commissioners sitting as a board, came Jacob P. Leese, a witness in behalf of the claimant, John A. Sutter, in case No. 92, who, after being duly sworn, deposed as follows: Questions by the counselfor claimant. 1st question. State all you know in relation to an offer of the Mexi can government to purchase out New Helvetia, or Sutter's fort, after it was made. Ans. I think some time in the latter end of the year 1845, November, I think, a gentleman by the name of Andres Castillero, a Mexican, arrived at the town of Sonoma, where I resided, in company with Gen'l Jose Castro, and requested of me to accompany them to New Helvetia, Gen'l Sutter's fort. As he reputed to me, his object was to purchase Capt. Sutter's establishment on account of the Mexican government. I proceeded with him in company with Gen'l Castro and Col. Prudon. On our arrival at the fort, Castillero, the commissioner, had an interview with Capt. Sutter relative to the purchase of the establishment. He offered him sixty thousand dollars, on condition that he (Capt. Sutter) would leave California. Capt. Sutter, as I understood, asked him eighty thousand dollars. The next following morning I spoke to Capt. Sutter on the subject, and advised him to The United States vs. Sutter. 59 take sixty thousand dollars, on conditions that he would pay him down the money and remain in the country. The commissioner informed me afterwards that he did not negotiate with Capt. Sutter, in consequence of his demanding the pay down. [Objected to by the U. S. law agent as hearsay testimony.] 2d question. From where did this commissioner draw his authority? Ans. The commissioner informed me that he was sent here by the government of Mexico to purchase Capt. Sutter's establishment, as there was a jealousy on the part of the government of the 74 position Capt. Sutter had on the frontiers, as he had protected foreigners coming across the continent to the country. 3d question. Do you know of Capt. Sutter rendering services to the country, civil or military? Ans. I do know of Capt. Sutter's having civil and military command of the northern district known as Sacramento. I think that Capt. Sutter received his command (or commission) in 1838 and 1839, and hAd that position up to the change of the flag, in 1846, eighth day of August of the same year. 4th question. Do you know anything of the uses and customs of the Mexican government in making compensation for services by grants of land? [Objected to by the U. S. law agent, as no custom can vary the law.] Ans. I know of grants being given for services in the country. Cross-examined by the U. S. law agent. 1st cross-int. Where did you first know Capt. Sutter? Ans. I think it was in the year 1838, may be in 1837, in this place. 2d cross-int. Did you ever know of any other attempt of the government of Mexico to buy land from private citizens in California? Ans. I did not; this was the first instance of the kind. 3d cross-int. Had Capt. Sutter his cannon mounted in his fort when you made that visit? Ans. He had his cannon mounted. 4th cross-interro. Were there any title-deeds exhibited, showing his right to occupy the land? Ans. There were no titles exhibited in my presence. 5th cross-int. Was Gen'l Castillero's instructions, to buy out Capt. Sutter, in writing? Ans. I did not see them. 6th cross-int. What do you know about them? Ans. All I know about them was verbally from Mr. Castillero to myself; he told me that he had them in writing, as well as a large sum of money in blank checks, with the president's signature to them. Direct examination resumed by counselfor the claimant. 1st question. When was the offer of the Mexican government first known in California? 60 The United States vs. Sutter. Ans. It was known to me on the arrival of Mr. Castillero at Sonoma, I think in the latter end of 1845. 2d question. Do you know anything in relation to the opposition made by the U. S. consul then in California at that time? 75 Ans. I do not know. Cross-examination resumed. 1st int. When was the object of Castillero in getting rid of Capt. Sutter first publicly known? Ans. It was on his (Castillero) return from Sacramento, as he had not effected the negotiation with Capt. Sutter. The following objections were made by the U. S. law agent to the above deposition: 1st. Because it contains hearsay testimony. 2d. Because the testimony is wholly irrelevant. 3d. It is not the best testimony, as other and better appearsin the deposition, and not produced. JACOB P. LEESE, Subscribed and sworn to before the commissioners, sitting as a board, this 18th July, A. D. 1854. Attest: GEO. FISHER, Sec'y. Filed in office July 18th, 1854. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 5, p. 178. GEO. FISHER, Sec'y. Deposition of Abner Bryan. UNITED STATES LAND COMMISSION, San Francisco, July 18th, 1854. On this day, before the commissioners sitting as a board, came Abner Bryan, a witness in behalf of the claimant, John A. Sutter, case No. 92, who, after being duly sworn, deposed as follows: Questions by the U. S. law agent. 1st question. Were you at the fort of Capt. John A. Sutter, on the south bank of the American river, in the year 1845, when Jacob P. Leese, Gen'l Castillero, and others paid a visit to Capt. Sutter? If yea, state what transpired then, and what was the object of the visit, as explained at that time. Ans. I was present, and Gen'l Castro, Leese, and others came to New Helvetia. Gen'l Castro, so called and known to us as Gen'l Castro. It was a meeting of the emigrants who came across the plains from the States to California, and the cause of the meeting was to hear what Gen'l Castro had to say to us. He got up when there was many assembled; he spoke for a considerable length of time. I did not understand what he said, not understanding the language which he spoke. The United States vs. Sutter. 61 i6 BMr. Leese arose and said he would explain or interpret what Gen' 1 Castro had been saying. The object of his coming there, he had been informed we were trespassing upon the rights of his people or subjects; went on further to say that the gen'l was happy to find us all quiet and peaceable; that he wished us to go to the different missions around; we should have houses to live in and gardens to cultivate, and when we became naturalized citizens we should have land. Shortly after that there was a notice stuck up on Capt. Sutter's door a New Helvetia for each and every one who was not a naturalized citizen of California or Mexico to leave the country immediately, as explained to us by Capt. Sutter and others, not knowing the language in which it was written. 2d question. When did you first know Capt. Sutter? Did he at that time have any of his family in the country? When did his family, or any part, arrive in California? Ans. I knew him first the 6th November, 1845, when I arrived at New Helvetia, and became acquainted with Capt. Sutter; he had none of his family at that time in California. I never knew any of his family until 1848; I don't know when they arrived. 3d question. State whether from the character of your intercourse with Capt. Sutter you would probably have known whether his family were in California prior to the year 1848. Ans. I think I should have known it, that they were there. I had frequent intercourse and conversation with Capt. Sutter. I understood from him that his family were not in California. [Objected to by the claimant's counsel to the foregoing question and answer.] Cross-examination by claimant's counsel. 1st cross-int. When did you arrive in California? Ans. On the 6th Nov., 1845, at New Helvetia. ABNER BRYAN. Sworn to and subscribed to before the commissioners sitting as a board, this 18th July, 1854. GEO. FISHER, Sec'y. Filed in office July 18th, 1854. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 5, p. 180. GEO. FISHER, Sec'y. 7T Deposition of Henry L. Ford. UNITED STATES OF AMERICA, State of California, ss: SAN FRANCISCO, March 12th., 1855. This day personally came before Peter Lott, commissioner for taking testimony to be used before the board of U. S. land commissioners 62 The United States vs. Sutter. in said State. Henry L. Ford, a witness on behalf of the claimant, John A. Sutter, in case No. 92 on the docket of said board; and said witness being duly sworn, deposed as follows: The U. S. law agent is present. Questions by Mr. Howard, for claimant. 1st question. What is your name, age, and residence? Ans. My name is Henry L. Ford; my age, 31 years; my residence, Colusi county, California. 2d question. Were you in Santa Barbara, California, in the winter of 1844 and 1845; if yea, in what capacity? Ans. I was there in the latter part of January and early part of February, in the capacity of a soldier, under Capt. Sutter. 3d question. Do you know anything of a grant of land being made at that time to Capt. Sutter; if yea, by whom was it made, where was the land situated? and state all you know about it. Ans. Shortly before we left Santa Barbara, say from the 6th to the 10th of February, 1845, Gen'l Micheltorena made a speech, in which he said that he granted to Capt. Sutter all the land he had claimed or asked for (I do not remember his exact words) in the Sacramento valley, and also that he had made grants of all the lands in the Sacramento valley, for which he had previously issued decrees of permission to settle. This speech was made to the foreign volunteers, composed of Americans, English, Irish, and others. In April, 1845, after I had returned to New Helvetia, I asked Capt. Sutter to let me see this general grant of Micheltorena for the lands in the valley, and he showed it to me, and also showed me a grant of a sobrante to himself and son. The grants were signed by Micheltorena. 4th question. Were you acquainted at that time with the handwriting of Micheltorena? If yea, state your means of knowledge. Ans. I never saw him write; I saw several orders during the campaign which he had signed, and I have a passport which was signed by him at Monterey in 1844. I cannot say that I know his 78 handwriting; I can only say that the signature of his name to these grants resemble those which I have seen to the orders and passport before mentioned. 5th question. From your knowledge of his signature, do you believe his signature to said grants of Sutter, which Sutter showed to you, were genuine? L5th question objected to as leading.] Ans. I should believe them to be genuine. 6th questior. Look at the paper now shown you, marked "A, P, L," as an exhibit to this deposition, and state whether you recognise it as a copy of any paper you have before seen; and if yea, of what paper? [6th question objected to as leading.] Ans. To the best of my knowledge, this is a very good copy of the grant shown me by Capt. Sutter in 1845. 7th question. Have you ever seen the map accompanying the title of Sutter; if yea, where? The United States vs. Sutter. 63 Ans. I saw a map which was said to have been drawn by Captain Vioget; it was shown to me at the same time the papers were shown me by Capt. Sutter, in 1845; it was a map of the lands of New Helvetia. I think this was written on the map, if I recollect right. 8th question. Look at the map now shown you, marked "B. P. L.," as an exhibit to this deposition, and say if you recognise it as a copy of any other map you have seen; if yea, of what one? Ans. To the best of my recollection, it is avery good copy of the map shown me' by Capt. Sutter in 1845. 9th question. How long have you been acquainted with New Helvetia? Ans. Ever since 1844. 10th question. Did Capt. Sutter cultivate any land in 1845; if yea, where was it situated? Ans. He cultivated some land south and west of the fort. The fort was situated on the south side of the American river, about a mile or a mile and a half from its junction with the Sacramento river. He also cultivated some up at the Hock Farm that year. 11th question. State whether he that year occupied any other land, and in what way. Ans. He occupied the land lying immediately north of the mouth of Feather river, on the Sacramento; he had 2,000 head of cattle and some corrals there. He had a sheep farm in 1844 on the southwest side of the Buttes, and he had several bands of mares on the 79 east side of Feather river in 1845; he removed his sheep on the American river, about a mile and a half east of the fort, on the same side of the American. I saw no occupation on the east side of the Sacramento, between the mouths of the American and Feather rivers. Cross-examined by the U. S. law agent. 1st question. Did you, in the winter of 1844, understand the Spanish language; if yea, how long had you known it, and where did you learn it? Ans. I did not understand it perfectly; what I knew of it I learned at Monterey and at San Jose; the most I learned of it I learned of Mr. Hartnell, in Monterey. I arrived in the country in 1842, and commenced immediately to pick up the language from the natives. I knew enough of the Spanish language in the winter of 1845 to transact business, to buy and sell, and trade in stock with the natives, without any interpreter. I could read Spanish at that time, in 1845; there were some words whriich I did not understand. I never had written any Spanish up to that time, that I recollect of. 2d question. How long was Micheltorena addressing you at the time you have mentioned, and in what language did he speak? Ans. He might have been a half an hour or three-quarters engaged in speaking; but I cannot say precisely what the the length of his speech was. He spoke in the Spanish language. 3d question. In what connection did he say he had granted to 04 The United States vs. Sutter. Capt. Sutter all the land he had asked for; on wh:t su bjc t was he then speaking? Ans. He was addressing the volunteers, to encour(.ec thorn to continue in the service. There was some trouble in caip, alI the soldiers talked of turning back; and he was telling thlm.!:.at he had done and what he was willing to do to compensate them fer their services; and it was in this connection he spoke of what hoe hlad done for Captain Sutter. 4th question. Is it not possible and likely that you may be mistaken as to the language of Micheltorena in that speec,? Ans. The address was translated publicly at the time by Captain Sutter into English; and I do not think it is at all likely that I 80 was mistaken, because Captain Sutter's interpretation was the same as I understood the language of Micheltorena at the time to mean, and was substantially as I have stated. 5th question. How long after that speech before you were shown the papers by Capt. Sutter? Ans. It was nearly two months; I cannot say exactly the time. 6th question. Where were you, and in what house, and who was present, when you saw said papers? Ans. I was at the adobe house of Sutter's room, in the southeast corner of the house at the fort. There was a man by the name of John Williams present; he is dead; and I tkink his brother James was present, but I am not certain; he is living. I recollect no others. 7th question. From what place did Capt. Sutter produce said papers? Ans. He took them from a bundle of papers he had, either from a desk or trunk in the same room. I am not positive whether he took the bundle from the trunk or desk. 8th question. How many other papers did he show you at the same time? Ans. He showed me none, excepting the general title which was issued to some 12 or 15 settlers, who had petitioned for lands in the valley, and his own title. 9th question. How long were examining them? Ans. We were a half hour or three-quarters looking at the papers and talking about them; we may have been an hour and a half in the room together. Question 10th. Which did you notice first? Ans. The general title was the first I noticed. 11th question. Did you ever see either of those papers afterwards? Ans. No; I never saw either of those papers; I have seen copies of them. 12th question. Iow does it happen that you can, at this distance of time, swear to the paper shown to you as a copy? Ans. I think I stated in my- answer that it resembled certain portions of the paper which I recollected; I do not pretend to swear that it is a true copy. The United States vs. Sutter. 65 13th question. What were the boundaries of the grant shown you at that time, and what were its conditions and date? Ans. I do not recollect any except the northern boundary; that was called for in the grant as the "Three Buttes." The conditions 81 of the grant, as I can recollect, were, that he could enclose it as not to obstruct the roads; he was to apply to the proper authority to be put in possession of it; and some other conditions which I do not now recollect. The date was of the year 1845; but I do not recollect whether it was January or February, though it was one or the other of those months. 14th question. How, then, can you know this to be a copy? Ans. I have already answered, as to the best of my recollection upon that subject, that this resembles the portions of the original in those particulars which I remember. 15th question. How many lines of latitude and longitude were marked on the map shown to you by Capt. Sutter? Ans. I don't recollect. 16th question. What figures were marked therein to indicate the latitude; can you state any one of the numbers? Ans. As near as I can recollect, there was on the northern line figures 38; I don't Irecollect; I am not sure I am correct about that; there may have been other figures, but I do not recollect them. 17th question. Did not John Bidwell keep Capt. Sutter's papers in 1845? Ans. He kept his books; I do not think he kept his private papers; I do not know that he did; I know that he was his bookkeeper. Sutter's private papers, at the time I have mentioned, were in his own possession. 18th question. Did you read each of the papers named, and is it upon your recollection only, after a lapse of tun years, you speak of the contents of a paper written in a language you imperfectly understood? Ans. I read each of them; I read Spanish well enough at that time to understand the papers, and Capt. Sutter also read to us portions of that sobrante grant, and his interpretation of it was the same as I understood it from reading it myself. My recollection of the papers is from what I learned from them at that time. HENRY L. FORD. Subscribed and sworn to before me on the 13th M'ch, 1855. PETER LOTT, Commissioner. Filed in office March 20th, 1855. GEO. FISHER, Sec'y, Recorded in Ev. B., vol. 11, p. 64. GEO. FISHER, Sec'y, [REC. CCLVIII, D. T. 1862.] 66 The United Stat(s vs. Sutter. 82 Depo. of Juan B. Alvarado. UNITED STATES OF AMERICA, State of California, ss: SAN FRANCISCO, M'ch 15th, 1855. This day personally came before Peter Lott, cormmissioner for taking testimony to be used before the board of U. S. land commissioners in said State, Juan B. Alvarado, a witness on behalf of the claimant, John A. Sutter, in case No. 92 on the docket of said board; and said witness being duly sworn, deposed in Spanish, which was interpreted by the secretary, as follows: The U. S. law agent is present. Questions by Mr. Howard, for claimant, 1st question. What is your name, age, and place of' esidence? Ans. I am 46 years of age; my name is Juan B. Alvarado; my residence, Contra Costa county, California. 2d. question. What office did you hold in California in 1841? Ans. I was, in that year, constitutional governor of California. 3d question. Did you, while exercising that office, execute a grant of land to Capt. Sutter? If yea, when and what land did you grant to him, and how much? Ans. I made a grant of land to Capt. John A. Sutter in 1841, whil I was governor as aforesaid. The grant was for a tract of land ii Sacramento valley, which was named New Helvetia by the grantee The quantity granted was eleven leagues. 4th. question. Can you name any of the boundaries of said tract of land? Ans. The boundaries were designated by degrees of latitude, the numbers of which I do not remember, and the land was described as lying on the Sacramento and Feather rivers. There were other points designated diseno accompanying the grant, and I remember the' Tres Picos" was named as a point of boundary. 5th question. Look at the expediente filed in this case, marked "A, P. L.," as an exhibit herein, and state if you know what it is, and whether you recognise it as a copy of the original in the archives. Ans. This is a correct traced copy from the archives in the surveyor general's office of the petition of Capt. Sutter, and in pages 5 and G in the traced copy of the form of a grant which I made, and which is. now in my handwriting in said archives, except at the end of 83'"Words Mong., 18 Junis, S. 4 bu'd;" these words were written by Jimeno, the secretary, as a memorandum. The diseio was at the same time given to the secretary, and I do not know why it is not now with the papers in the archives. 6th question. Was any paper given to Sutter as evidence of his title? If yea, what was it'? Ans. Yes, there was given to said Sutter a title, of which this just exhibited is an exact copy, except that the one given to Sutter was sigied by Manuel Jimeno as secretary. The United States vs. Satter. 67 Tth question. Look at the map now shown you, marked "B, P. L., " as an exhibit herein, and say whether you recognise the same. Ans. This map seems to me to be an exact representation of the one which Sutter presented at the time of the petition and grant, except that on the map there before me there were marked, on what is here represented as the "Rio de las Plumas," localities whichlSutter thought would be suitable points for the settlement of the families under him, and some also on the Sacramento river. I recognise the bends of the river Sacramento as being the same as on the original map, and the "Three Peaks" on the same as on that map, and also the place marked here "New Helvetia" is the same. I named the degrees of latitude in the grant to said Capt. Sutter as he had them marked on his diseio. I told hiim he did not know the latitude, but as he insisted on having them so, I described them accordingly. 8th question. What do you understand by "las tierras senigadas," mentioned in the 3d condition of the grant? Ans. That phrase means swamp or tule lands, overflown and unfit for cultivation. Cross examined by U. S. law agent. 1st question. Where did you last see the map which was shown to you at the time you rm:ide this grant? Ans. I never saw it after that occasion, when it was before me for the purposes of making said grant. 2d question. Had you ever seen it before that time, and how much did you examine it? Ans. I do not remember to have seen it before that time; I examined it then with a viow to makin'g the grant. I never have seen it on other occasions; but 1 do not remember it if I did. 3d question. Who drew the form for the title? Ans. I did, myself. 84 4th question. How long before you signed the title was it that you m-ade this form? Ans. It must have been a short time. It was all done while Capt. Sutter was then at AMonterey on the business of his application. 5th question. Had you the map before you when you drew the said form of the grant? Ans. Yes, I had it before me. 6Gth question. In settling down the lines of latitude in your form for a grant, did you mark them according to the numbers laid down on the diseo? Ans. Yes, I made tlem the same. I copied them from the map; unless I made some mistake copying them. they are the same. 7th question. Was there a line of latitude marked on said map as running through the "Tres Picas'?" If yea, what number designated it? Ans. I do not remember whether there was such a line or not on the diseio. 8th question. Was there a line of latitude on said diseno running 68 The United States vs. Sutter. through or near the jurisdiction of the Sacramento and Feather rivers? If vea, how as that line numbered? Ans. I do not remember whether there was such a line or not. 9th question. Answer the same question to the mouth of the American river. Ans. I do not remember. 10th question. On said original diseiio were there lines of latitude marked with the numbers increasing towards the south? Ans, I cannot remember; I paid but little attention to this matter of latitude, as I knew nothing about its correctness. 11th question. Was there on said diseino a dotted line running on the west, and nearly parallel with the Sacramento river? Ans. I do not remember whether there was or not. 12th question. Was there such a dotted line on the east side of said river on said diseno? Ans. It may be there was, but I do not remember it. 13th question. Was there any dotted lines on either side of the American or Feather rivers on said diseno? Ans. I was confused by the questions as to parallel lines. I do recollect that there was dotted lines on both sides, I think, of all the rivers marked on the diseio. 15th question. Can you state where they were nearest and where furthest from the rivers? Answer. I cannot remember. 16th question. If a paper were shown you now, purporting to be a copy of that original diselio, could you detect whether those 85 dotted lines had been changed from the position and direction which they held on the original? 17th question. Since you do not recollect the localities of those dotted lines, nor of the lines of latitude, how can you state that the mi ) exhibited to you in this deposition is a correct representation of the lisefio you had before you when you made the grant? AIns. I stated that it was correct, because the national objects on the liseio were noticed in the form of grant which I made, and because I remember the general outline of it when I made the grant; I made it more with reference to the. natural objects than to the lines of latitude; I did not intend to be understood that the minute details of the map were the same, as I have already stated the lines of latitude and dotted lines might be different on this copy, and I could not detect it from mly memory of the original. 18th question. Could there not have been in the copy an additional line of latitude marked, which was not on the original, without your detecting it? Ans. 1 cannot say, for I paid so little attention to this matter of latitude. 19th question. Look again at the form of the grant drawn by you, and state what is the eastern boundary of the land within which the eleven leagues granted were to be taken. Ans. The margins of Feather river as the eastern boundary. The United States vs. Sutter. C9 Be-examined by claimant's counsel. 1st question. Was the establishment of Sutter at this place considered of such importance by the government as to draw your attention particularly to the grant and map? Ans. It was; the establishment was esteemed of public importance, because it furnished protection on the northern frontier and encouraged new s/ttlements, which the government was desirous of fostering. [1st question objected to as leading.] 2d question. Was the grant made with reference to the entire map? [2d question objected to by law agent as leading and attempting to vary the grant itself.] Ans. Yes, it was, in order that Sutter might take such land as suited him, within the bounds of the map. Cross-examined by the U. S. law agent. 86 1st question. Did you express, in the title you issued to Sutter, the true extent and meaning you had in making the grant, and would your recollection, at this distance of time, be as likely to be correct as your written intentions were as then expressed in said grant? [1st question objected to, because there is no conflict between the terms of the grant and the testimony now given by the witness.] Ans. I intended then to convey the meaning expressed in the writing, and it is possible my memory might differ from that writing; my intention was to grant the land Sutter asked for, but, as to these numbers of latitude, I did not understand them. JUAN B. ALVARADO. Subscribed and sworn to before me this fifteenth day of March, A D. 1855. PETER LOTT, Commissioner. Filed in office March 30th, 1855. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 11, p. 610. GEO. FISHER, Sec'y. [For map see original, page 86.] Deposition of Jno. J. Vioget. UNITED STATES OF AMERICA, State of California, ss: SAN FRANcISCO, M1'ch 8th, 1855. This day came before Peter Lott, commissioner for taking testimony to be used before the board of U. S. land commissioners in said State, John J. Vioget, a witness on behalf of the United States, in case No. 92 on the docket of said board, wherein John A. Sutter is claimant; and said witness being duly sworn, deposed as follows: The claimant's counsel, Mr, Howard, is present. TO The United States vs. Sutter. Questions by U. S. law agent. 1st question. What is your name, age, and residence? Ans. My name is John J. Vioget; my age, 55 years; my residence, San Francisco county, California. 2d question. In continuation of our cross-examination to your two depositions heretofore taken in this case, state how many maps of the Sacramento valley you made and delivered to Capt. Sutter in the early part of 1841. Ans. I made two then, and one in 1843. 8T 3d question. Where and when did you last see either of those maps made by you in 1841? Ans. The last time I saw either of them was in 1843. When I made my map at that time I had one of those which in 1841 before me, and made my map of 1843 a copy of the one of 1841, with some names added; one was the names of the rancherios which I did not know in 1841. 4th question. Can you state, from your present recollection, all the marks you made of either of those maps, or the locations of the lines of latitude you set down thereon? Ans. I remember very distinctly the southern boundary on the two leagues of land of New Helvetia, and the northern and western boundary, and indistinctly the eastern boundary; then I can remember in general the outline of the maps, so as to know in the main whether one shown to me was a correct copy or not. 5th question. Look now on the map marked "B," filed herein in March 8, 1852, and state whether the line marked "lindero,' latitude north 300 49' 32", was on either of the copies made by you for Capt. Sutter. Ans. The line was marked on them, but not the numbers, and I always told Sutter, or others who asked me about it, that the latitude was incorrect. 6th question. What line of latitude did you mark, as running through the fort, and what through Feather river, and what through the Buttes? Ans. I do not remember the numbers. 7th question. Can you identify, from your recollection of the original and map now shown to you as a copy, with sufficient distinctness to say whether it is an accurate copy or not? Ans. In the main features I could tell, from my recollection of the original, whether any one now shown me would be a copy of them or not, but I could not say such were an accurate copy unless it had been made by myself. 8th question. Could you in any such propose copy now identify the lines of latitude as being the same as those in your originals? Ans. I could not, for I never had any faith in the correctness of any of those latitudes, and have not charged my memory with them. 9th question. Can you, from your recollection, trace the lines on a map purporting to be a copy, (with the river accurately laid 88 down as you laid it,) which you marked on your map as the boundary of the swamp lands on the margins of the river; or, The United States vs. Sutter. 71 in other words, if those boundaries were not marked on said copy, but only the line of the river, could you supply those lines of boundary; and if you were to see a copy with those lines of boundary of the swamp lands marked on it, could you say whether they correspond accurately with the lines on your originals? Ans. I could not now from my memory supply the lines of the tulares or swamp lands in a map which was made without them, nor could I say, if they were laid down on a professed copy, whether they corresponded with my original, unless that copy were one which I knew I made myself. But I will further state, that on my original maps those lines of tulas swamps were dotted down from mere estimates of a river of the eye, and without measurements I would not pretend to vouch for their correctness. 10th question. When and from whom did you first learn that the term New Helvetia was applied to lands in the Sacramento valley? Ans. I think it was early in 1840. The way I first learned it was from the letters of Capt. Sutter, who used to date them at his place by that name. 11th question. What was the extent of the lands called New Helvetia at that time? Ans. I do not know, for that was before there was any grant or any survey, and no one could say what the limits would be when the grant should be made. Capt. Sutter gave the name to his place before the boundaries were established. 12th question. Were those lines dotted along the margins of the river by you intended as boundaries of any particular tract of land surveyed by you? Ans. They were the estimated lines of the tulares, and not intended as the boundaries of any rancho or tract of land surveyed by me. Cross-questioned by Mr. Howard, for claimant. 1st question. What did you establish as the southern boundary of the "New Helvetia" by your survey and map thereof? Ans. Of the two leagues, embracing the fort, I made the southern boundary at the southwest corner of a lagoon, where I placed 89 a stake at the time. That lagoon, I suppose, is 3 or 4 miles south of Sacramento city, and perhaps two miles from the Sacramento river. 2d question. Look at the map now shown you, marked "A, P. L.,' and filed herewith as an exhibit to this deposition, and state who made it, when, where, and upon what date, and for what purpose, and under what circumstances it was made? [Objected to by law agent as a new matter, illegal in cross-examination.] Ans. I made the map, at the request of Capt. Sutter, in the year 1843, in Yerba Buena. I copied it from one of the original maps I made in 1841, to the best of my recollection. 3d question. Is it an exact copy of said original in its main features? Ans. It looks so; and I feel no doubt in my own mind of its being 72 The Uni e I States vs. Sutter' a correct copy, with the differences before stated in this deposition respecting the dotted boundaries of the tule lands. 4th question. What became of the original maps you made in 1841? Ans. I gave them to Capt. Sutter. 5th question. In whose handwriting is this map last shown you, marked "A, P. L.? Ans. It is in my own handwriting. Be-examined by U. S. law agent. 1st question. How did you know the place you surveyed was to be the place, by boundaries, to be called "New Helvetia," and how did you know what would be the southern boundary of " New Helvetia? " Ans. I was governed by Capt. Sutter's instructions. I knew nothing about the then but what he told me. 2d question. Did Capt. Sutter give names to the tracts you then surveyed? Ans. Yes; the name of New Helvetia was applied to both tracts: the one on Feather river, and two leagues below on the American fork, and it was so marked on the maps. The words on the map were given to me about as follows: "Map of the lands for the colonization of New Helvetia." This was in Spanish on the maps. JOHN J. VIOGET. 90 Subscribed and sworn to before me on the 8th day of March, A. D. 1855. PETER LOTT, Commissioner. Filed in office March 20th, 1855. GEO. FISHER, Sec'y. Recorded in Ev. B., vol. 11, p. 556. GEO. FISHER, Sec'y. [For 2 maps see original, page 90.] Espediente.-Certified copy from the ofice of the surveyor general. Espediente. Promovido por Dn. Juan Augusto Sutter, en solicitud de un terreno que se halla a las margenes del Rio Sacramento. 1841 250 A, P. L.-Exhibit to depo. of Juan B. Alvarado, larch 15, 1855. [2-S. P. K.] 91 Sello tercero-Dos reales. Habilitado provicionalmente por la aduana marit'a del puerto de Monterey, en el departamento de las Californias, para los afnos de mil ochocientos cuarenta y mil ochocientos cuarenta y uno. JIMENOO ANTONIO M'A OSIO. [SEAL.] 1he United States vs. Sutter. 73 Ex' mo S'ori Gob'r de este Departamento: Juan Augusto Sutter, natural de la republica Suisea, naturalisado en la republica Mejicana, y actualmente radiendo en este departam'to ante la notocia justificacion de V. E., con el respeto debredo hace presente; que desde su ingero a este pais y deceoso de cultivar una parte de los muchos terrenos baldios que tiene, recabo de V. E., su superior aprobacion para establecese en el terreno que hoy ocupa; arreidolo a algunas familias laboriosas que quicieran seguirlo y como asi trabajo acedero promete y a espenansas lesongenas a su esta blicimiento en lo particular y veritajas al departam'to en lo general, atendiendo a que a ejemplo de los que lo siguen se ban despentando ideas laboriosas en las tenias habitantes de este pais: siroiendo a la vez pr. el parage de su citacion, de una fuente nase, va a las incursiones de las trebas barbaras 6 las poblaciones que de una escuela decibir locasion ya a los indigenos barbaras ya a los reducidos o [-3S.D. K.] miciones quienes en la senela delatada de anos q han estado reducidos, no han cedo miembras utiles a la sociedad comun, como boy tiena el que subscribe la satisfaction de que lo sean debido a sus enfatigables taneas. Por todas estas razones se be en la necesidad pra. en grandecer su impresa y establecer doce familias de suplicar a la bondad de V. E., se sirva condecerle once leguas de terreno en su establicimiento nominado la Nueva Helvetia, cituado acea el norte con total' arreglo al terreno estado en el diseno que tiene el honor de acompanar a V. E.; no incluyendose en las once leguas citadas el terreno que penidicamente es userandado de agua en el invierno y protestando a V. E., y la nacion Mejicana que seran pr. el peluente observadas las leyes de colonizacion vi gentes y todas las que haban de esta materia. Portanto A. V. E. suplico 92 se sufia en usos de las facultades con que enibetan las leyes, acceder a su solicitud y interponer a la vez su poderoso[4-S. D. K.] Sello tercero-Dos reales. Habilitado provicionalmente por la aduana marit'a del puerto de Monterey, en el departamento de las Californias, para los afnos de mil ochocientos cuarenta y mil ochocientos cuarenta y uno. ANTONIO MARIA OSIO. JIMENO. \ Aduana maritima, Monterey. -impulso, ante el gob'no supremo depart'al de la nacion, a fin de recabar su superior oprobacion con cuya gracia recibire un beneficio el que subscribe y sup'mento la agricultura de este pais. Monterey, Junio 15, de 1841. Ex'mo Sr. J. A. SUTTER. 7'4 The United States vs. Sutter. [5-S. D. K.] Titulo. Por cuanto Dn. Augusto Sutter, natural de la republica Suiza y naturalizado en la nacion Mejicana, ha pretendido conforme a la ley de 18 de Agosto, de 1826, y al reglamento de 21 de Noviembre, de 1828, para su beneficio personal y el de doce familias onze leguas de tierra a las margines del rio del Sacramento en los terrenos valdios de la frontera del norte para colonizar los y formentarlos en los terminos referidos en las dispociones mencionadas para cuya fin ha herreditado sufecientamente sus bensadus buena conducta. y demas calidedas que son requerridas en estos casos toniendo, y a anticipadas sus enederaes apresos su constante empeno y a lo verdaderamente patriotico en favor de nuestras instituciones reduciendo a la civilisar una posecion de Indios salvajes naturales de aquellas fronteras e informado suficienta'te este gob'no de que los terrenos mencionado no pertenecen a la propiedad particular de ningun individuo, pueblo o corporacion que se hallan por consiguiente en las clasificadas en lanejeridas leyes y conforme o las facultades que me son conferidas en nombre de la nacion Mejicana ha venido en concederle al mencionado Sr. Dn. Augusto Sutter, jr., las presentes latres para si y sus colonisados el terreno referido con el nombre de la Nueva Elvesia, sujetandose a la aprobacion o des 93 reprobacion del sup'm gobierno y de la E. J. departam't bajo las condiciones siguientes: [6-S. D. K.] la. Podra sercarlo sin prejudicar las travesias caminos y servidumbres y principalmente el trafico y nabegacion de los rios de los deferentes trebus. 2a. Mentendra a los naturales indigenos de aquellos puntos en el goce y libertad de sus poseciones sin molestary solo podra reducivalos a la civilisacion pr. los medios de la prudencia y de las relaciones amistases sin obtener las facultades del gob'no. 3a. El terreno de que se le hace donacion es de onze sitios de ganado mayor comprendidas en la estension que demarcaran el diselno que corre agregado al espediente sin incluir las tierras niregadas por el impulso y los concernientes de los rios siendo sus linderos por la parte del norte las tres picos y la latitud 39 41 45 norte, al este las margenes del Rio de las Plumas, al sur latitud 38 49 32 W., al oeste el Rio del Sacramento. 4a. Cuando se le confirme esta propiedad solicitara del juez respectivo la posecion del terreno para que son medido conforme a ordenanza quidando el sobrante que resulte a beneficio de la nacion para los unos que le convengan. 6. A mando que teniendose este por firme y valedero este titulo se tome razon de el en el libro que corresponde y se el espediente a la ex'ma S. departamental de las Californias, lo mando firme de que doy fee. Mont'y, 18 de Julio. The United Sta(es vs. Sutter. 75 OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, Samuel D. King, surveyor general of the United States for the State of California, and, as such, now having in my office, and under my charge and control, a portion of the archives of the former Spanish and Mexican territorial or department of Upper California, do hereby certify that the six preceding and hereunto annexed pages of tracing paper, numbered from one to six inclusive, and each of which is verified by my initials, (S. D. K.,) exhibit a true and accurate copy of certain documents now on file and forming part of the said archives in my office. 94 In testimony whereof, I have hereunto signed my name officially, and affixed my private seal, (not having a seal of office,) at the city of San Francisco, this 13th day of December, 1851. SAM'L D. KING, Surveyor Gen' l, Cal' a. Filed in offce Oct. 1st, 1853. GEO. FISHER, Sec'y. John A. Sutter.-C.-Title and translation, A, P. L.-Exhibits to the depo. of Henry A. Ford. Manuel Michelt'a, general de brigada del ejercito Mejicano, ayud'te general de la plana mayor del mismo, gobernador, comand' te general y inspector del departamento de las Californias. Por cuanto D. Juan Augusto Sutter, y su hijo Juan A. Sutter, Mejicano por naturalizacion, han pretendido pr. sus beneficio personal, y el de su familla el sobrante del su rancho norrbrado Nueva Helvetia segun esplica el dicenio que corre en el espediente, practicadas previam'te las diligencias y averiguaciones con con'tes segun lo dispuesto por leyes y reglamentos usando de las facultades que me son conferidas a nombre de la nacion Mejicana y por los mentos y servicios que ha prestado y esta prestando actualm'te el S'or Sutter. He venido en concederles el terreno mencionado declarandoles la propiedad por las presentes letras sujetandose a la aprobacion de la eccelentisma assemblea departamental y bajo las condiciones seg'tes. la. Podran cercarlo sin perjudicar las travecias caminos y servidumbres. Lo disputara libre esclusivamente destinandolo al uso 6 cultivo qe les convenga. 2a. Solicitaran del juez respectivo qe. les de la posecion juridica, en virtud de este despacho por el cual se demarcaran los linderos en cuyos limites pondran a mas de los majoneras algunos arboles frutales o silvestres de alguna utilidad. 3o. El terreno de que se hace mencion es de viente y dos leguas de ganado mayor segun explica el disenio qe. corre en el expd'te. 4a. El juez que diere la posecion lo hara medir conforme a 95 ordenanza, que dando el sobrante que resulta a la nacion para los usos conven'tes. 5a. En consecencia mando qe. serviendoles de titulo el presente y 76 The United States vs. Sutter. teniendose por firme y valedero, lo presentaran para qe. se toma razon en el libro respectivo y se entrigue a los interesados para su resguardo y demas fines. Dado en este papel corr'te por falta del sellado correspond'te. Santa Barbara, el cinco de Febrero, de mil ochocientos cuaraita y cinco. (Signed) MANUEL MICHELT'A. (Signed) JUAN CASTANEDO, S'rio Interim. Filed in office March 8th, 1852. GEO. FISHER, Sec'y. [1-S. D. K.] Sello cuarto-Dos reales. i Aduana maritima de Mont y, Habilitado provicionalmente por la aduana maritima del puerto de Monterey, en el departamento de las Californias, para los afnos de mil ochocientos cuarenta cuatro, y mil ochocientos cuarenta y cinco. PABLO DE LA GUERRA, Por ans'a del Admo' r, GUELL'O ED'O IHARTNELLO. IICHELTORENA. Exhibit 0.-Expediente of Wm. A. Leidesdorff. Exm' o S' or Gobernador: Co. Guillermo A. Leidesdoff, natural de Denmarca, y naturalizado en la republica Mejicana, ante V. E. con toda sei mission y respeto; se presente y dice. Que hallandose, hallandose posedor de un gran numero de ganado mayor galezeoso a tener un sitio en propiedad para formentarla, he encontrado uno baldio colindante con los terrenos de Sefnor Sutter, segun espleca el adyunto disenfo que debidamente acompana, dicho sitio es en el orillo del rio de los Americanos, y consiste de cuatro leguas de largo por el este y dos leguas de ancho por el sur. Por tanto A. V. E. suplica rendivamente que concede dicho terreno por lo cual recibire merced, y gracia perando no ser de malecia y lo necesario. Monterey, Agoste de 1844. 96 GUILLERMO A. LEIDESDORFF. [2-S. D. K.] MONTEREY, Agosto 23, de 1844. Inf'e el s'rio del des pacho tomando previam'te los necesarios. MICHELTORENA. Como despone el ex'mo s'or governador sirvase informar el S'or Sutter, sobre el contenido de la precedente instancia. Monterey, f'ha la misma. MANUEL JIMENO. The United States vs. Sutter. 77 [3-S. D. K.] Ecx mo S'or Gobernador: El terreno que se solicita esta baldio como se acredita por el adyunto certificado, y tan bien demarcado segun aparece, en el diseno que en y en una situacion tan contigna al parage del Senor Sutter, que entiendo no haber segun incombesiente pa. que V. E. pueda concederle al interesado ei terreno pretemebiendo si no tubiere V. E. otra cosa que desponer. Montercy, Obr'e lo, de 1844. MANUEL JIMENO. F'ha rot. Concedido. MIICHELTORENA. MONTEREY, 8 de OctzdTre, de 1844. Vista la peticion con que da principio este espediiete los informes que preceden contadolo demas que se tuvo presente y de ver convino de conforrnidad con las leyes y reglamentos de la materia, declaro a Don Guillerrrn A. Leidesdorff. por las presentes dueno en propiedad del terreno q e se halla situado a las margenes del rio nombrado de los Americanos, colindante con el terreno concedido a ]a colonia del S'or Sutter, y con las lomerias del oriente en estencion de ocho sitios de ganado mayor, hebnese el correspon'te despacho tomere ragon en el libro respectivo y dinizace este espediente a la ex'ma asamblea departamnl1 para su aprobacion. El E. S. Dn. Manuel Micheltorena, general de brigada del ejercito Mejicano, ayundante gra'l de la plana mayor del nismo, gobernador coinmand'te gra'l e inspector del de partamento de las Californias, asi lo mando decreto y firmo de qe. doy fee. [4-S. D. K.] Jurisdiccion del rio Sacramento. El terrerno que solicita en este desinisento Don Guillermo A. Liedesdoff, situado en el rio de los Americanos, por presenlte esta des ocupado y es el que esta representado en esu mapa y doy esta certification para los fines que convengan. Nueva Helvetia, Agosto 4, de 1844. J. A. SUTTER. 97 [6-S. D. K.] Sello primero-Ocho pesos. HEabilitado provicionalmente por la aduana marit'a del puerto de Monterey, en el departamento de las para los anos de mil ochocientos cuarenta y cuatro y mil ochocientos cuarenta cinco. PABLO DE LA GUERRA, Por an'sa del Adm' r, GUILLO. ED'O0 IIARTNELL. MICIIELTORENA. 78 The ULited States vs. Sutter. El ciudadano Manuel Micheltorena, general de brigada del ejercito Mejicano, ayundante g'ral del mismo, gobcrnador g'ral e inspector del departmento de Californias. Por cuanto D. Guillermo A. Leidesdorff, Mejicano por naturalizacion, ha pretendido para su beneficio personal seis sitios de ganado mayor en la rivera del rio que llaman de los Americanos conviente con el toreno concidido a la colonia del S'or Sutter y con las lometias del oriente: practicadas previamente las diligencias y averiguaciones concernientes segun lo dispuesto por leyes y reglamentos de la materia usando de las facultades que me son conferidas a nombre de la nacion Mejicana, he venido en conceder el terreno mencionado sujetandose a la aprobacion de la e'ma asamblea departamental y a los condiciones siguientes: la. No podra venderlo, enagenarlo, impotecarlo, imponer censo, vinculo ni otro gravamen y no podra donarlo. 2a. No impedira el cultivo ni otros aprovecheam'tos que por otro terreno adquierani las Tuvigenas de ese rumbo. 3a. Podra sercarlo sin perjudicar las travesias caminos y servidumbres lo desfrutara libre y esclusivamente destinandolo al uso y cultivo que mas le acomode pero dentro de mano. fabricara casa y estara habitada. 4a. El terreno de que se hace donacion es de la estension de que ya se ha hecho mencion el juez que diere la posesion lo hara inedir conforme a ordenanza, quedando el sobrante que resulte a la nacion para los usos convenientes. 5a. Si contraveniere a estas condiciones perdera su derecho al terreno y sera denunciable p. otro. En consecu(-:cia mando que teniendose por valedero el presente titulo, se tome:azon de el en el libro respectivo y se entreque al interesado para su resguardo y demas fines. Dado en Monterey aocho de Octubre de mil ochocientos cuarenta y cuatro. MANUEL MICHELTORENA. MANUEL JIMENO, S' rio del Despacho. 98 Quedo tomada razon de este despacho en el libro respectivo a pajas I1. JIMENO. [For mapl see original, page 98.] OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, Samuel D. King, surveyor general of the United States for the State of California, and, as such, now having in my office, and under my custody, a portion of thlc archives of the former Spanish and Mexican territory or departme:it1 of Upper California, do hereby certify that the nine preceding anid!ereunto annexed pages of tracing paper, numbered from one to ni:e, inclusive, exhibit a true and accurate copy of a portion of an e-l lKhente entitled "Espediente promo vido The United States vs. Sutter. 79 pr. Don Guillermo Leidesdorff en pretencion del terreno conocido con el nombre del Rio de los Americanos, " now on file, and forming part of the said archives in this office. I further certify that other alterations and erasures appear to have been made in the espediente, similar to that in the sixth line of page six of the portions herein furnished. In testimony whereof, I have hereunto signed my name officially and affixed my private seal, (not having a seal of office,) at the city of S. F'co, Cal., the 29th day of July, 1853. SAMUEL D. KING, Surveyor G'. Filed in office Sept. 30, 1853. GEO. FISHER, Sec'y. Translation of Espediente A. Stamp 3d-Two reals. Provisionally authorized by the maritime custom-house of the port of Monterey, in the department of the Californias, for the years eighteen hundred and forty and eighteen hundred and forty-one. (Signed) ANTONIO MARIA OSIO. (Signed) XIMENO. [CUSTOM-HOUSE SEAL.] Translation. To his excellency the governor of this department: John Augustus Sutter, a, native of the Swiss republic, naturalized in the Mexican republic, and at present settled in this department, before the notorious justice of your excellency, with due re99 spect, says: That since his arrival to this country, wishing to cultivate a portion of the many existing tracts of vacant land, obtained your excellency's superior approval for the purpose to settle himsef on the land which he now occupies, associated with some industrious families who were willing to follow him, and as an assiduous labor already promises flattering expections to his settlement individually, and advantages to the department in general, considering that the good example of those who follow him has already awakened similar ideas in the other inhabitants of the country; at the same time this settlement, from its position, proves to be a strong barrier against the incursions of the savage Indian tribes into the villages, and as a school of civilization, either to the wild natives or to those under the care of the missions, who, during the long time they have been submitted, have not been useful members of society, as your petitioner at this time has the satisfaction that they are, which is due to his ild3fatigable exertions; for all these reasons he finds himself under the necessity of enlarging his enterprise by establishing twelve families, and to solicit the kindness of yolur excellency, that you may be pleased to grant 80 The United States vs. Sutter. him eleven leagues of land in his establishment called "La New Helvetia," (New Helvetia,) situated towards the north according to the land represented in the sketch which he has the honor to present to,your excellency. The land which is periodically overflown in winter is not comprised in the aforesaid eleven leagues. Your petitioner protests to your excellency, and to the Mexican nation, that he shall keep faithful the laws of colonization in force, and all those about the matter; therefore he supplicates your excellency, that, exercising the power vested in you, you will be pleased to grant him his petition, and to interfere at the same time your powerful influence before the supreme government of the nation, that its superior approbation may be obtained. Your petitioner will receive a favor and benefit, and the country will improve its agriculture. Monterey, June 15th, 1841. Excellent sir, 100 (Signed) JOHN A. SUTTER. Title. Whereas Don Antonio Sutter, a native of the Swiss republic, and naturalized in the Mexican nation, has solicited, according to the law of 18th August, 1824, and the ordinance of the 21st November, 1828, for his personal benefit, and that of twelve families, eleven leagues of land on the borders of the river Sacramento. in the vacant lands of the northern frontier, in order to colonize and foster them, for which end he has sufficiently proved his assiduity, good behavior and all other qualities required in those cases, having already anticipated his increased efforts, his constant firmness and his truly patriotic zeal in favor of our institutions, having reduced to submission a number of savage Indians, born in those frontiers, and this government being sufficiently informed that the mentioned land does not belong to the property of any private individual, town, or corporation, and that, in consequence thereof, it is specified in the aforesaid laws, and in conformity with the power conferred on me, in the name of the Mexican nation, I have granted to the said Senor Don Augusto Sutter, by these present letters, for him and his settlers, the said land called La Nueva Elvecia, (New Helvetia,) subject to the approval or disapproval of the supreme government, and of the excellent departmental assembly, under the following conditions: 1st. He may fenice it without injury to the crossings, roads, and servitudes, and above all to the trade and navigation of the rivers. 2d. He shall maintain the native Indians of the different tribes on those places in the free enjoyment of'their possessions without troubling them, and he may only reduce them to civilization through prudent measures and a friendly intercourse; he shall not cause thema hostilities of any kind without previously obtaining authority from g vernment. 3d. The land of which donation is made to him is of the extent of eleven sitios de ganado mayor, (eleven square leagues,) as exhibited in the sketch annexed to the proceedings, without including the The United States vs. Sutter. 81 lands overflown by the swellings and current of the rivers. It 101 is bounded on the north by Las Tres Picas, (the Three Summits,) and the 390 41' 45t' north latitude; on the east by the borders of the "Rio de las Plumas," (Feather river;) on the south by the parallel of 38~ 49' 32" of north latitude, and on the west by the river Sacramento. 4th.'When this property shall be confirmed unto him, he shall petition the proper judge to give him the possession of the land, in order that it may be measured, agreeably to ordinance, the surplus thereof remaining for the benefit of the nation, for convenient purposes. Therefore I order that, this title being held as firm and valid, the same be entered in the proper book, and that these proceedings be transmitted to the exc't the departmental assembly. Thus I, John B. Alvarado, commandant general of the department of the Californias, have ordered and signed, to which I certify. E. C. R. P. MONTEREY, June 18th, 1841. I certify the foregoing to be a true and correct translation of the foregoing Spanish documents, filed in this office, in case No. 92, John A. Sutter. GEO. FISHER, Sec'y. Filed in office March 8th, 1852. GEO. FISHER, Sec'y. Translation of title.-" C." Manuel Micheltorena, brigadier general of the Mexican army, adjutant gen'l of the staff, governor, general-in-chief, and inspector general of the department of the Californias. Whereas Don Juan Augustus Sutter, a Mexican naturalized citizen, and his son, John A. Sutter, have solicited for the personal benefit of themselves and family the surplus of land within his rancho, named New Helvetia, as laid down in the map which accompanies the grant, and the usual investigations and inquiries in relation thereto, by law and regulations, having been complied with, by virtue of the authority conferred upon me, in the name of the Mexican nation and for the good conduct and services which the said Sutter has rendered and is rendering at the present time, I have conceded to them the 102 mentioned land, declaring in them the ownership thereof by thesq presents, subject to the approval of the most exc't the assembly department, under the following conditions: 1st. They may enclose it, without interfering with the paths, roads, and servitudes. They shall enjoy it exclusively and freely, appropriating it to the uses of cultivation which suits their convenience. 2d. They can request the proper juez that he give them lawful possession by virtue of this decree, so that the boundaries may be defined, at the limits of which there may be placed beside the landmarks some fruit trees, or useful kind of forest trees. [REC. CCLvII, D. T. 1862.]-6 82 The United States vs. Sutter. 3d. The land of which mention is made consists of twenty-two square leagues, described upon the map which accompanies this grant. 4th. The juez who gives the possession shall have the land sur. veyed according to law, remaining the surplus that may result at the disposal of the nation, for its convenient uses. 5th. Therefore I command that these presents investing the title in them, and holding the same as firm and valid, shall be handed in for record in the proper books, and shall be delivered to the parties in interest for the security and other purposes. Executed on this ordinary paper, having no stamped paper appropriate. Santa Barbara, February 5th, 1845. MANUEL MICHELTORENA., ec'y ad interim. I certify the foregoing to be a true and correct translation from the foregoing Spanish document, filed in this office, in case No. 92, John A. Sutter. GEO. FISHER, Sec'y. Filed in office March 8th, 1852. GEO. FISHER, Sec'y. Translation of Exhibit 0. A, P. L.-Exhibit to the deposition of Henry L. Ford, March 12th, 1855. To his excellency the governor: The citizen Wm. A. Leidsdorff, a native of Denarmarca, and naturalized in the republic of Mexico, presents himself before your excellency with all submission and respect, and says: That, pos103 sessing a great number of cattle, and being desirous to own a place on which to raise them, he has found one vacant, adjoining the lands of Captain Sutter, as shown in the map attached, which he respectfully presents herewith. The said land is on the bank of the American river, and is four leagues in length towards the east and two leagues in width towards the south. Wherefore he beseeches your exc'y to grant him said land, whereby he will receive reward and favor, swearing, &c., &c. Monterey, August 29th, 1844. GUILLERMO A. LEIIDSDORFF. (Written in the margin.) MONTEREY, Aug. 29th, 1844. Let the secretary of the office report, after taking the necessary steps. MICHELTORENA. Tle United States vs. Sutter. 83 As directed by his excellency the governor, Capt. Sutter will please report upon the contents of the foregoing application. MANUEL JIMENO. Monterey, same date. To his excellency the governor: The land solicited is vacant, as appears from the annexed certificate, and so well marked out on the map, and in a situation so near the place of Capt. Sutter, that I think there is no objection to your excellency granting the land to the applicant, if your excellency does not wish to direct otherwise. MANUEL JIMENO. Monterey, Oct. 1st, 1844. Same date.-Granted. MICHELTORENA. MONTEREY, Oct. 8th, 1844. In view of the petition with which this expediente begins, the reports which precede, and all else present and proper to be considered, in conformity to the laws and regulations on the subject, I declare William A. Leidsdorff, by these presents, owner in property of the land situated on the banks of the American river, bounded by the land granted to the colony of Capt. Sutter and by the hills on the east, in extent eight leagues, "de ganado mayor." Let the corresponding decree be isssued and recorded in the proper book, and the expediente referred to the most excellent departmental 104 assembly, for its approval. His excellency Manuel Micheltorena, brigadier general of the Mexican army, adjutant general of the staff of the same, governor, commanding gen'l, and inspector of the department of the Californias, thus ordered, decreed, and signed, as I certify. Jurisdiction of the river Sacramento. The land solicited in this application by Wm. A. Liedsdorff, situated on the American river, is now unoccupied, and is the land represented on this map; and I give this certificate for the purposes for which it may be required. JOHN A. SUTTER. NEW HELVETIA, Aug. 4th, 1844. Seal first-Eight dollars. Furnished provisionally by the custom-house of the port of Monterey, in the department of the Californias, for the years 1844 and 1845. PABLO DE LA GUERRA, In the absence of the adm't, WILLIAM EDW'D HARTNELL. MICHELTORENA. 84 The United States vs. Sutter. The citizen Manuel Micheltorena, brigadier gen'I of the Mexican army, adjutant gen'l of the same, governor, commanding gen'l, and inspector of the department of the Californias. Whereas William A. Leidsdorff, a Mexican by naturalization, has solicited for his personal benefit six leagues "de ganado mayor," on the banks of the river called the American river, bounded by the land granted to the colony of Mr. Sutter, and by the hills to the east, having first taking the proceedings and made the inquiries according to what is directed by the laws and regulations on the subject, exercising the powers which are conferred on me in the name of the Mexican nation, I have granted him the said land, subject to the approval of the ex't departmental assembly, and te the following conditions: 1st. He shall not have power to sell, alienate, nor mortgage it; to impose on it any entail or other charge, nor to give it away. 2d. He shall not hinder the cultivation or other improvements of said land made by the Indians of that region. 3d. He shall have power to enclose it, without injury to the 105 crossings, roads, and servitudes. He shall enjoy it freely, cultivating it as may best suit him; but within one year he shall build a house, and it shall be inhabited. 4th. The land of which donation is made is of the extent already mentioned. The judge who shall give the possession shall have it measured in conformity to the ordinance, leaving the surplus which remains to the nation for the proper uses. 5th. If he should violate these conditions he shall lose his right to the land, and it shall be denounced by another. Wherefore I order, that present title, being held firm and valid, be recorded in the proper book, and be delivered to the party interested for his protection and- other purposes. Given at Montereyi the 8th of October, 1844. MANUEL MICHELTORENA. MANUEL JIMENO, Sec'y. This deed is recorded in the proper book, page 11. JIMENO. Filed in office September 30th, 1853. GEO. FISHER, Sec'y. TV.-Annexed to the depo. of Joseph Clough, taken before the board July 18, 1854. Mexican government to J. A. Sutter. Grant. Sello lo-Seis pesos. Habilitado provisionalmente por la aduana maritima de Monterey, para los ainos de 1839 y 1840. ALVARADO. ANTONIO MARIA OSIO, The United States vs. Sutter. 85 Valga por los anos de 1841 y 1842. ALYARADO. ANTONIO MARIA OSIO. [SEAL.] Juan B. Alvarado, gobernador constitutional del departamento de las Californias. Por cuanto Dn. Augusto Sutter, natural de la republica Suisa, y naturalizado en la nacion ha pretendido conforme a la ley de 18 de Agosto, de 1824, y al reglamento de 21 de Noviembre, de 1828, para su beneficio personal y el de doce familias once leguas de tierras en las manjanes del rio del Sacramento en los terrenos baldios de la frontera del norte, para colonizar los y formentar los en los terminos referidos en las disposiciones mencionadas, para cuyo fin ha acreditado sujececestemente su laboriosidadbuena conducta y demas cualidades 106 que son requeridas en estos casos teniendo ya anticipados sus enecidas esfuerzas, su constante empeno y celo bendaderamente patriotica en favor de nuestros, reduciendo a la civilidad una poicion de judios salvages naturales de aquellas frontera e inprimado suficientemente esto gobierno de que los terrenos mencionados no pretencion a la propiedad particular de ningun individuo, pueblo, o corporacion, y se hall' an por consiguiente en las clasificadas en las leyes y conforme a las facultades que me son conferidas en nombre de la nacion Mejicana he venido en concederle al mencionado Sr. Dn. Augusto Sutter por las presentes letras para si y sus coloniradores el terreno referido con el nombre de la Nueve Elvesia, sujetahdose a la aprobacion o disaprobacion del gobierno supremo y de la ex'mo junta departamental bajo de las condiciones siguientes. la. Podra sercarlo sin prejudicar las travesias caminos y servidumbres, principalmente el trafico y nabegacion de los rios. 2a. Mantendra a los naturales indigenos de las difirentes tribas de aquellos puntos en el goce y libertad de sus fuciones sin molestar los y solo podra reducirlos a la civilization por los me'dios de su prudencia y de las relaciones amistosas sin hostilzarlos en manera alguna antes de no obtenir las facultades del gob'no. 3a. El terreno de que se hace donacion es de once sitios de ganado mayor comprendidos en la estension que demarca el disenio que corre agregado al espediente sin incluir las tierras anegados por el impulso y las corrientes de los rios, siendo sus linderos por la parte del norte los Tres Picos, y la latitud 39 41 45 norte al este las marigenese del Rio de las Plumas al sur latitude 38 49 32 norte al oeste el Rio dl Sacramento. 40. Cuando se le confirme esta propiedad solicitara del juez respectivo la posecion del terreno para que sea medido conforme a ordenenza que dando el sobrante que resulte a beneficio de la nacion para los usos que le convengan. En concecuencia mando que teniendose por firme y valedero este titulb se tome razon de el en el libro a que corresponde y se entreque al interesado para su resguardo y demas fines. 86 The United States vs. Sutter. Dado en Monterey, a diez y ocho de Junio, de mil ocho cientos cuarento y uno. JUAN B. ALVARADO. MANUEL JIMENO, S'rio. 107 Queda tomada razon de este despacho en el libro de acientos sobre adjudicaciones de terrenos baldios a $4 va. JIMENO. Recorded Feb'ry 6, 1851, 31 o'c. p. m. S. A. BIRDSALL, Recorder. STATE OF CALIFORNIA, County of Sacramento: I, John L. Craig, recorder in and for said county, do hereby certify the foregoing to be a full, true, and correct copy of an instrument of writing from Juan B. Alvarado to Augusto Sutter, as recorded. in book F of deeds, pages 320, 321, and 322 of the records of Sacramento county, at present in my office. In testimony whereof, I have hereunto set my hand and affixed my official seal this 13th day of June, A. D. 1854. JNO. L. CRAIG, Co. Recorder. M. JEROME MADDEN, Dpy. B. Filed in office July 18, 1854. GEO. FISHER, Sec'y. Translation of W., annexed to depo. of Jos. Clough. Stamp 1st-Six dollars. Provisionally authorized by the maritime custom-house of Monterey for the years 1839 and 1840. ANTONIO MA. OSIO. ALVARADO. Valid for the years 1841 and 1842. ANTONIO MA. OSIO. ALVARADO. [SEAL.] Juan V. Alvarado, constitutional governor of the department of the Californias. Whereas Dn. Augusto Sutter, a native of the Swiss republic, and naturalized in the Mexican nation, has solicited, according to the law of 18th of August, 1824, and the ordinance of 21st of November, 1828, for his personal benefit, and that of twelve families, eleven leagues of land on the borders of the river Sacramento, in the vacant lands of the northern frontier, in order to colonize and foster them, as required in said regulations, for which end he has sufficiently proved his assi The United States vs. Sutter. 87 duity, good behavior, and all other qualities required in these cases, having already anticipated his great efforts, his constant firmness, and his truly patriotic zeal in favor of our institutions, having reduced to submission a number of savage Indians born in these fron108 tiers, and this government being sufficiently informed that the mentioned land does not belong to the property of any private individual, town or corporation, and that, in consequence thereof, it is specified in the aforesaid laws; and in conformity with the powers conferred on me, in the name of the Mexican nation, I have granted to the said Sefor Don Augusto Sutter, by these presents, for him and his settlers, the said land called La Nueva Helvecia, (New Helvetia,) subject to the approval or disapproval of the supreme government, and of the most excellent departmental assembly, under the following conditions: 1st. He may fence it, without injury to the crossings, roads, and servitudes, and, above all, to the trade and navigation of the rivers. 2. He shall maintain the Indians of the different tribes on those places in the free enjoyment of their possessions without troubling them, and he may only reduce them to colonization through prudent measures and a friendly intercourse; he shall not cause them hostilities of any kind without previously obtaining authority from government. 3d. The land of which donation is made to him is of the extent of eleven sitios de ganado mayor, (eleven square leagues,) as exhibited in the sketch annexed to the espediente, without including the lands overflowed by the swelling and current of the rivers. It is bounded on the north by (los Tres Picos) the Three Summits and 29~ 41' 45" north latitude; on the east by the borders of the (Rio de las Plumas) Feather river; on the south by the parallel of 38~ 49' 32" of north latitude, and on the west by the river Sacramento. 4th. When this property is confirmed unto him, he shall petition the proper judge to give him the possession of the land, in order that it may be measured agreeably to ordinance, the surplus thereof remaining for the benefit of the nation for convenient purposes. Therefore I order that, this title being held firm and valid, the same be entered in the respective book, and that it be delivered to the party interested, for his security and other purposes. 109 Given in Monterey on the eighteenth day of June, eighteen hundred and forty-one. JUAN B. ALVARADO. MANUEL JIMENO, Sec'y. I certify the foregoing to be a true translation of document W, annexed to the deposition of Joseph Clough, taken before the board July 18, 1854, filed July 18, 1854. In witness whereof, I have hereunto signed my name at office. GEO. FISHER, Sec'y. Filed in office July 18, 1854. GEO. FISHER, Sec'y. 88 The United States vs. Sutter. Deed-John A. Sutter to John A. Sutter, jr. Know all men by these presents that I, John A. Sutter, of New Helvetia, in the Territory of Upper California, for and in consideration of fifty thousand dollars, good and lawful'money of the United States of America, to me in hand paid by John A. Sutter, jr., of the same place, the receipt whereof is hereby acknowledged and confessed, and also in consideration of natural love and affection, have granted, bargained, sold, transferred, and set over, and by the presents do grant, bargain, sell, assign, transfer, and set over, unto the said John A. Sutter, jr., his heirs, executors, administrators, and assigns, all the following described real estate and chattels, together with all the appurtenances, herdiliments, improvements, settlements, thereto belonging, and bounded and described as follows, to wit: All that lot, piece, tract, or parcel of land situate, lying, and being in the said Territory of Upper California, commencing on the north latitude 390 331 45", at a point on the east bank of the Rio de Sacramento, at said latitude; running thence east to the Rio de las Plumas, and three leagues to the east, beyond said river; thence south to latitude 38~ 41' 32"; thence west to the Rio de Sacramento; thence in a northwesterly direction, up and along the course of said river Sacremento to its intersection with the said Rio de las Plumas; thence in westerly direction, up and along the course of the Rio de Sacramento, to the place of beginning, containing about eleven (11) leagues of land, to be the same more or less, excepting and reserving out of said mentioned tract of land a certain piece or parcel of land situate, lying, 110 and being east of the said Rio de Sacramento, and bounded on the north by latitude 390 1' 45", and on the south by the Rio de los American, and granted by the republic of Mexico to one Elias Grimes. For a more particular description of the above mentioned property, reference is hereto made to a certain map of said premises, surveyed and made by John Jacob Vioget, and now in the archives of the government of the said Territory of Upper California, and also to two certain grants of the said John A. Sutter, of said described premises, dated respectfully, the one on the eighteenth day of June, in the year one thousand eight hundred and forty-one, and the other in or about the month of November, in the year one thousand eight hundred and forty-four; and also all that certain lot, piece, parcel, or tract of land situate, lying, and being in the Territory of Upper California, known and distinguished as "Fort Ross," together with all the real estate, lands, tenements, and chattels real thereto belonging, and in anywise appertaining to said real estate, containing about six leagues of land, be the same more or less; and also all that certain tract, piece, or parcel of land situate, lying, and being on the river known as the (South Fork,) together with the saw-mill and other buildings thereon standing, and the fixtures belonging and appertaining thereto, containing about six hundred and forty (640) acres of land in one square mile; and also a certain other lot, piece, parcel, or tract of land situate and lying in the town of San Francisco, in said Territory of Upper California, adjoining the premises of the late The United States vs. Sutter. 89 William 4. Leidsdorff and one John McKinstry: to have and to hold the above-mentioned real estate, lands, tenements, and chattels real, together with all and singular the hereditaments and appurtenances thereunto belonging and in anywise appertaining to the same, unto the said John A. Sutter, jr., his heirs, executors, administrators, and assigns forever. In witness whereof, I have hereunto set my hand and seal this fourteenth day of October, in the year of our Lord one thousand eight hundred and forty-eight. JOHN A. SUTTER. [SEAL.] 111 In presence ofMYRON NORTON. T. R. PERSEL. STATE OF CALIFORNIA, County of San Francisco, ss: On this first day of June, A. D. 1850, before me, a notary public in and for said county, appeared Myron Norton, personally known to me to be the person whose name is subscribed to the foregoing conveyance as a witness thereto, who, being by me duly sworn, did depose and say that John A. Sutter, the person whose name is subscribed to such conveyance, is the person who executed the same in the presenee of deponent, and that deponent subscribed his name to such conveyance as a witness thereof. Given under my hand and seal of office. Notarial JOHN McVICAR, seal. Notary Public, San Francisco County. The following described real estate is excepted and reserved out of the property conveyed by the foregoing deeds from John A. Sutter to John A. Sutter, junior, said real estate having heretofore been conveyed by deeds from said John A. Sutter to the grantees hereafternamed, respectively, to wit: Three miles square of land lying on the Yuba river, conveyed to one John Smith some time in the year 1844; also one mile and a half of land lying on said river, conveyed to one Michael Nye some time in the year 1844; also one mile of land lying Feather river, conveyed to one Nicholas Allgunn some time in the year 1840; also one mile of land lying on said river, conveyed to one Edward Farwell some time in the year 1844, and adjoining the said land of Nicholas Allgunn; and also one-half mile of land lying in Sutterville, and. conveyed to one Lamford W. Hastings some time in the\year 1845; and the said John A. Sutter, jr., hereby releases all right, title, and claim to all and to every part of the said parcels of land which he may have acquired by virtue of the foregoing deed. 90 The United States vs. Sutter. In witness whereof, the said parties have interchangeably set their hands and seals this eighteenth day of November, one thousand eight hundred and forty-eight. JOHN A. SUTTER. [SEAL.] JOHN A. SUTTER, JR. [SEAL.] In presence ofMYRON NORTON, T. R. PR. LEE. 112 STATE OF CALIFORNIA, County of San Francisco, ss: On the first day of June, A. D. 1850, appeared before me, a notary public in and for said county, Wyram Norton, personally known to me to be the person whose name is subscribed to the within conveyance as a witness thereto, who, being by me duly sworn, did depose and say that John A. Sutter and John A. Sutter, jr., whose names are subscribed to such conveyance, are the persons who executed the same in the presence of deponent, and that deponent subscribed his name to such conveyance as a witness thereto. Witness my hand and seal of office. Notarial JOHN McVICAR, seal.' Notary Public, San Francisco County. Recorded June 3d, 1850, at 4 3 p. m. THO'S JALY, Dept. Recorder. I hereby certify that the foregoing is a true, correct, and faithful copy of deed from John A. Sutter to John A. Sutter, jr., as recorded in book C of deeds, pages 351, 352, 353, in my office.' Witness my hand and official seal this twentieth day of October, A. D. 1851. JOHN L. CRAIG, Recorder Sacramento County, By W. J. REELY, Deputy R. Filed in office Nov. 4th, 1853. GEO. FISHER, Sec'y. Deed from John A. Sutter, jr., to John A. Sutter. John A. Sutter, jr., to John A. Sutter-Deed. This indenture, made this twenty-fifth day of June, in the year of our Lord one thousand eight hundred and forty-nine, between John Sutter, jr., of the first part, and John Augustus Sutter, of Hock Farm, on Feather river, in Upper California, of the second part, witnesseth: That the said of the first part, for and in consideration of the sum of fifty thousand dollars, to him in hand paid by the said party of the second part, at and before the ensealing and delivery of these present, the receipt whereof is hereby acknowedged, hath given, granted, bargained, sold, aliened, released, and by 113 these present doth give, grant, bargain, sell, and release The United Slates vs. Sutter. 91 unto him, the said party of the second part, all that tract and parcel of land situate and being in Upper California, which is contained in the following boundaries, that is to say: Beginning on the eastern bank of Sacramento river, in latitude 390 33' 45" north; thence east along the same circle of latitude to Feather river, and continuing in the same line to the distance of three leagues from the eastern bank of Feather river; thence in a southerly direction in a line parallel to the eastern bank of Feather river, and continuing three leagues distant therefrom to the circle of latitude which passes through the mouth of Feather river; thence west along the said circle of latitude two leagues; thence southerly in a parallel to the eastern bank of the Sacramento river, and one league distant therefrom to the river called the American Fork; thence along the north bank of the American Fork in a westerly direction to the junction of said river with the Sacramento; thence over to the south bank of the American Fork at the said junction; thence along the southern bank of the American Fork in an easterly direction to the western boundary line of a tract of land known as Leidsdorff's ranch; thence south to the circle of latitude which lies 38~ 41' 32" north; thence west along the said circle of latitude to the Sacramento river; thence along the said Sacramento to the place of beginning, saving and excepting out of the aforesaid tract of land the following lots and parcels of land, to wit: Any and all lots of land lying and being within the aforedescribed boundaries, which the said party of the first party of the first part may have granted and conveyed by deeds bearing dates anterior to that of these presents; and also all those tracts or parcels of land which were excepted from a grant of land made by the said party of the second part to the party of the first part by deed bearing date the 14th day of October, in the year one thousand eight hundred and forty-eight, reference being hereby made to the land records of Sacramento city, where the said deed is recorded, for the more full exemplification thereof; and also all that tract of land situated on the Sacramento river, beginning at a point on the east bank of said river, adjoining the land owned by Geo. McKinstry, 114 running thence up the said river bank along the low water line one half mile; thence in a direct line back from said river one mile; thence in a line parallel with the aforesaid river line southerly one half mile; thence to the place of beginning. This last excepted and reserved land being meant and intended precisely to include and cover that lot and parcel of land which is claimed by Malan D. Winship by virtue of a quitclaim deed, made by the party of the second part hereto on or about the fifth of April, in the year eighteen hundred and forty-nine; and if the boundaries as above set forth do not include the said land pretended or attempted to be conveyed to the said Winship by the deed aforesaid, then the party of the first part hereby expressly excepts and reserves from the land hereby conveyed, or intended to be conveyed, all the land on Sacramento river called for and specified in the deed made as aforesaid by the said party of the second part to the said AMalan D. Winship, the same hereby conveyed, or intended to be conveyed, land and premises, being the land and 92 The Unitcd States vs. Sutter. premises which were conveyed by the said John A. Sutter, of Hock, to his son, the said John A. Sutter, jr., party of the first part hereto, by a deed, to which reference was herein above made, and none other land whatever. To have and to hold the aforesaid tract of land, together with all the rights, privileges, appurtenances, and water rights to the same in anywise appertaining, unto him, the said John A. Sutter, party of the second part, his heirs and assigns, to and for the sale, use, and behoof of him and them forever, and none other whatever. In witness whereof, the said John A. Sutter, jr., party of the first part, hath hereunto set his hand, and affixed his seal, on this the day and year hereinbefore mentioned. JOHN A. SUTTER, JR. [SEAL.] Signed, sealed, and delivered in presence ofARCHIBALD C. PEACHY. HARVEY A. SCHOOLCRAFT. TERRITORY OF CALIFORNIA, District of Sacramento, ss Be it remembered that on this 25th day of June, A. D. 1849, before me came John A. Sutter, jr., personally known to me to 115 be the person whose name appears signed to the foregoing deed as having executed the same, and acknowledged his said signature to be genuine, and the said instrument to be his free act and deed, for the purpose therein mentioned. Given under my hand and seal the day and year aforesaid. HENRY A. SCHOOLCRAFT, First Magistrate, Sacramento, Cal'a. Transcribed June 17th, 1850, at 11 o'c. a. m., from book "A" of Schoolcraft's Records, page 71. THOS. J. ABY, Dept. Recorder. I hereby certify that the foregoing is a true, correct, and faithful copy of deed from John A. Sutter, jr., to John Augustus Sutter, as recorded in book "C" of deeds, pages 411 and 412, records of Sacramento county. Witness my hand and official seal this twentieth day of October, A. D. 1853. JOHN L. CRAIG, Recorder of Suc. Co. Filed in office Nov. 4th, 1853. GEO. A. FISHER, Sec'y. The United StGats as. Sutter. 93 John A. Sutter and wife to John Fowler et al. —H.. Z. No. 2. Whereas I, John A. Sutter, of Hock Farm, Sutter county, State of California, party of the first part, have been for many years in possession of all that tract or body of land situate and lying and being in the State of California, and within the following boundaries, to Wit: Commencing on the north of the Three Peaks, or what is commonly called Sutter's Buttes, at a point on the east bank of Sacramento river, in latitude 390 41t 45"; thence running with the parallel of said latitude to the "Rio de las Plumas" or Feather river; thence down and along the meanders of said "Rio delas Plumas," or Feather river, to its junction with Sacramento river; thence up and along Ihe eastern bank of said Sacramento river to the place or point of beginning; and which said land embraced in a grant from the Mexican government, bearing date Monterey, 18th day of June, eighteen hundred and forty-one; and whereas, notwithstanding his possession of said land and his grant thereof, various persons have, from time to time, intruded thereon, and are continuing to do so, and taking possession of various portions thereof, and asserting a 116 claim thereto, to the great annoyance and injury of thesaid John A. Sutter; and whereas the said John A. Sutter is anxious to be released from the troubles, expense, and vexation of maintaining his lawful right the the land aforesaid; and whereas Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, parties of the second part, are willing to accept his said title and to assume upon themselves the labor, expense, and trouble of maintaining the lawful right and title of the said John A. Sutter to the aforesaid tract of land, of preserving and securing it against all intruders and all persons whatsoever; and whereas, as a further consideration of this conveyance, the said parties of the second part agree and hereby bind themselves to pay over to the said John A. Sutter onesixth part of the net proceeds of the said tract or parcel of land aforesaid, (with the reservation hereafter to be stated,) when and as the same may be from time to time sold; and whereas, also, Ann Sutter, the wife of the said John A. Sutter, is willing to become a party to this conveyance, and by it relinquishes all the right, title, and interest in and to the said tract or parcel of land before described, expressly upon the condition, and none other, that'the said parties of the second part shall convey to her, the said Ann Sutter, such title as they may acquire by this deed, to her sole, separate, and exclusive use forever, all that portion of the said tract or parcel of land known as "Hock Farm, " lying and being on Feather river, and fronting on the west side thereof, running the distance of six miles along and on said. river, and four miles back therefrom, &c., &c.; a more full description of which will appear by a reference to a deed this day executed to her, the said Ann Sutter, by the parties of the second part; and whereas the said parties of the second part, in further consideration for this deed, have also agreed to pay, at or before the 94 The United States vs. Sutter. sealing and delivery of this deed, the sum of six thousand dollars, the receipt by the said John A. Sutter is hereby acknowledged: Now, this indenture witnesseth, that for and in consideration of the premises above mentioned, I, John A. Sutter and Ann Sutter, his wife, of "Hock Farm," Sutter county, State of California, of the one part, have granted, bargained, sold, aliened, remised, re117 leased, and confirmed, and by these presents do fully and absolutely grant, bargain, sell, alien, remise, release, and confirm, unto Henry E. Robinson, John S. Fowler, Eugene F. Gillispie, and John McDougall, parties of the second part, and their heirs and assigns forever, all that tract or lot of land as heretofore described, being the same as granted by the Mexican government, bearing date on the 18th day June, eighteen hundred and forty-one, ly on Feather and Sacramento rivers, together with all and singular the hereditaments and appurtenances to the said tract or parcel of land and premises belonging, and in anywise appertaining, together with all the stock, utensils, and other things belonging on said tract or parcel of land, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and for every part and parcel thereof; and also all the estate, right, title, and interest, property, possession, claim, and demand whatsoever, of the said parties of the first part, and each of them, of, and in, and to the same, or any part or parcel thereof; and the said John A. Sutter and Ann, his wife, do hereby convey, grant, and assign unto the parties of the second part whatever right, title, and interest they may have in any part other tracts or parcels of land which they may have or possess in the State of California; but the said John A. Sutter excepts and reserves from this conveyance such parts and parcels of land as has been granted or sold heretofore by him, and for which he has executed his deeds, which were for valuable considerations, and which has been paid to him, and which deeds have been duly and properly recorded: to have and to hold the said tract or parcel of land and premises, and all interests in other lands hereby conveyed, with all their rights, members, and appurtenances, unto the said party of the second part, their heirs and assigns forever, to the only proper use and behoof of the parties of the second part, their heirs and assigns forever. In testimony whereof, the said parties of the first part and parties of the second part have hereto set their hands and affixed 118 their seals on this first day of July, in the year of our Lord one thousand eight hundred and fifty. JOHN A. SUTTER. [L.] A. SUTTER, ne dubela. [L.] HENRY E. ROBINSON. [L.] JOHN S. FOWLER. [L.] EUGENE GILLISPIE. [L.] JOHN McDOUGAL. [L.] The United States vs. Sutter. 95. Signed, sealed, and delivered in presence ofC. B. ZABRISKIE, J. C. ZABRISKIE, for the signature of John A. Sutter, Henry E. Robinson, John S. Fowler, John McDougal. Witness on the part of Ann SutterG. W. LAWRENCE, WM W. WWARNER. STATE OF CALIFORNIA, County of Sacramento, ss: I hereby certify that on this first day of July, A. D. 1850, personally appeared before me, a notary public in and for said county, John A. Sutter, H. E. Robinson, John S. Fowler, Eugene F. Gillispie, and John McDougal, known to me to be the persons described in and who executed the annexed conveyance, and acknowledged that they executed the same freely and voluntarily for the purposes and uses thereon mentioned. Witness my hand and notarial seal this the day and year aforesaid. WM. S. JACKSON, [SEAL.] Notary Public. STATE OF CALIFORNIA, County of Sutter, ss: On this the 8th day of July, A. D. 1850, personally appeared before me, a deputy recorder in and for the said county, John A. Sutter, known to me to be the person described in and who executed the annexed conveyance, and acknowledged the same to be his free and voluntary act for the uses and purposes therein mentioned. In testimony whereof, I hereunto affix my name and seal, the day and date aforesaid. G. W. LAWRENCE, Dep't Recorder for Sutter County. The official seal not executed. G. W. L. 119 STATE OF CALIFORNIA, County of Sutter, ss: On this the 8th day of July, A. D. 1850, personally appeared before me, a dept. recorder in and for the said county, Ann Sutter. wife of John A. Sutter, known to me to be the person whose name is subscribed to the annexed conveyance as a party thereto, and being examined by me, privately and apart from her husband, and having the contents of said conveyance fully explained to her, she acknowledged that she executed the same freely and voluntarily, without fear or 96 The United States vs. Sutter. compulsion or under influence of her husband; that she did not wish to retract the execution of the same. In testimony whereof, I hereunto set my hand and affix my private* seal (as yet no official seal provided) the day and date aforesaid. G. W. LAWRENCE, Deputy Recorder for Sutter County. *The official seal not yet executed. Recorded July 11th, A. D. 1850, at 2.40 o'c. p. m. THOS. J. ALY, Deputy Recorder. STATE OF CALIFORNIA, County of Sacramento, ss: I hereby certify that the above and the foregoing is a full, true, and correct copy of deed from John A. Sutter and wife to Hehry E. Robinson, John S. Fowler, Eugene F. Gillispie, and John McDougall, as recorded in book "D" of deeds, pages,268, 269, 270, and 271, records of Sacramento county. The words "to time," on the 14th line, interlined in copy, but not in original. In testimony whereof, I hereunto subscribe my name and affix my seal of office, at Sacramento city, this nineteenth day of April, A. D. 1851. JOHN L. CRAIG, Recorder Sacramento County. Filed in office April 22d, 1854. GEO. FISHER, Sec'y. John A. Sutter and wife to John S. Fowler, &c.-Deed.-X. Y. Z. No. 1. This indenture, made and entered into this 11th day of June, in the year one thousand eight hundred and fifty, between John A. 120 Sutter and Ann, his wife, of Hock Farm, in the county of Sutter and State of California, of the first part, and Henry E. Robinson, John S. Fowler, and Eugene F. Gillespie, of Sacramento city, in the State aforesaid, of the second part, witnesseth: That the said John A. Sutter and Ann, his wife, for and in consideration of the sum of fifteen thousand dollars, lawful money of the United States, to them in hand paid by the said parties of the second part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, and sold, aliened, released, and conveyed, and by these presents do grant,bargain, and sell, alien, release, and convey, unto the said Henry E. Robinson, Jno. S. Fowler, and Eugene F. Gillispie, their heirs and assigns forever, all of their right, title, and interest whatsoever, whether at law or in equity, of, in, and to that certain tract or parcel of land lying on the east side of the Sacramento river, commencing T77e United States vs. Sutter. 9T on the south at the intersection of said river and the American river; thence running northward, and following the meanderings of said Sacramento river, to the tract on said river embraced in the limits of what is known as the -c;ty of Vernon; thence easterly in a line running at right angles with the general course of said river one league; thence southwardly on a line running parallel with, and equal distance from, the course and meanderings of said river, until it intersects the American river; thence with said river and its meanderings to the place of beginning: containing, say five square leagues, more or less; it being intended by these presents to convey all the interests of the said parties of the first part, of, in, and to the aforesaid tract of land, notwithstanding the true boundaries of the same may extend beyond the eastern boundary as above defined, together with all the rights, privileges, and hereditaments, and appurtenances thereunto belonging: to have and to hold the said tract of land and all the interests hereby conveyed unto the said Henry E. Robinson, Jno. S. Fowler, and Eugene F. GTillispie, to the only proper use and behoof of them and their heirs and assigns forever, and the said John A. Sut121 ter, for himself, his heirs, executors, and administrators, the said tract of land hereby conveyed unto the said Henry E. Robinson, Jno. S. Fowler and Eugene F. Gillispie, their heirs and assigns, against the claim or claims, demand or demands, of all and every person whatsoever, doth forever warrant and defend by these presents. In testimony whereof said John A. Sutter and Ann, his wife, have hereunto set their hands and affixed their seals, the day and year first above written. JOHN A. SUTTER. ANN SUTTER, ne Dubela. In presence of. as to John A. SutterWILLIAM B. MCCRACKEN, I. BIGELOW. As to Ann Sutter, in presence ofGABRIEL ZENKSKY, B. F. WASHINGTON. STATE OF CALIFORNIA, County of Sacramento, ss: I hereby certify that on this, the 20th day of June, A. D. 1850, personally appeared before me, a notary public in and for the county aforesaid, John A. Sutter, known to me to be the person described in and who executed the annexed conveyance, and acknowledged that he executed the same freely and voluntarily, for the purposes therein mentioned. In testimony whereof I have hereunto set my hand and affixed my seal of office, the day and year aforesaid. BENJ. F. WASHINGTON, [SEAL]. Notary Public. [RE. CcLVIII, D. T. 1862.]-7 98 The United States vs. Sutter. STATE OF CALIFORNIA, County of Sacramento, ss: I hereby certify that on this, the 20th day of June, A. D. 1850, personally appeared before me, a notary public in and for said county. Ann Sutter, known to me to be the person whose name is subscribed to the annexed conveyance as a party thereto, and being examined by me privately and apart from her husband, and having the contents of said conveyance fully explained to her, she acknowledged that she executed the same freely and voluntarily, without fear or compulsion or under influence of her husband, and that she did not wish to retract the execution of the same. 122 Given under my hand and notarial seal, this day and year aforesaid. [SEAL.] BENJ. F. WASHINGTON, Notary Public. STATE OF CALIFORNIA, County of Sutter, ss: On this 8th day of July, A. D. 1850, personally appeared before me, a dep't recorder in and for the county aforesaid, Ann Sutter, (wife of John A. Sutter,) known to me to be the person whose name is subscribed to the within conveyance as a party thereto, and being examined by me privately and apart from her husband, and having the contents of said conveyance fully explained to her, she acknowledged that she executed the same freely and voluntarily, without fear or compulsion or under influence of her husband, and that she did not wish to retract the execution of the same. In testimony whereof I hereunto set my hand and affix my private seal, the day and year aforesaid. G. W. LAWRENCE, Dep' t Recorder, for Sutter County. This acknowledgement recorded July 23d, 1850 at 6 p. m. THOS. J. ABY, Dep't Recorder, Sacramento County, Cal. STATE OF CALIFORNIA, County of Sutter, ss: On this the 8th day of July, A. D. 1850, personally appeared before me, a dep't recorder in and for said county, John A. Sutter, known to me to be the person described in and who executed the within instrument, and duly acknowledged the same to be his free and voluntary act, for the uses and purposes therein mentioned. In testimony whereof I have hereunto affixed my name and private seal, the day and date aforesaid. G. W. LAWRENCE, Dep't Recorderfor Sutter County. This acknowledgement recorded July 23d, A. D. 1850, at 6 o'clock p. n. THOS. J. ABY, Dep't Recorder. The United States vs. Sutter. 99 123 STATE OF CALIFORNIA, County of Sacra nento, ss: I hereby certify that the within and foregoing is a full, true, and correct copy of deed from John A. Sutter and wife to Robinson, Fowler and Gillespie, as recorded in book D of Deeds, pages 189 and 190, records of Sacramento county. In testimony whereof I hereunto set my hand and affix my seal of office, at Sacramento city, this nineteenth day of April, A. D. 1851. JOHN CREIG, Recorder Sacramento County. Filed in office April 22d, 1854. GEO. FISHER, Sec'y. John A. Sutter to Elias Grimes, &c.-Ex7ibit "A A" to Depo. of Sam'l J. Hensly, in case No. 683. Know ll men by these presents, that I, John Augustus Sutter, of New Helvetia, a citizen of California, do agree, grant, and convey unto Elias Grimes, Hiram Grimes, and John Sinclair, their heirs, administrators and assigns, a certain piece or parcel of land situated in New Helvetia aforesaid, and described as follows, to wit: bounded by the river Sacramento, running northwestern to the mouth of Feather river; from thence in an easterly direction, meeting the said John A. Sutter's northeasterly boundary. The southern boundary commencing at the mouth of the river called the American Fork, said river being the southern boundary, running in an easterly direction, meeting the aforesaid Sutter's northeastern boundary: the said land is uncultivated,4well wooded and watered; together with all the privileges and appurtenances to the said land in anywise appertaining and belonging: to have and to hold the above granted premises in the same manner as I now hold it fiom the Mexican government, to the said Elias Grimes, Hiram Grimes, and John Sinclair, their heirs, administrators and assigns, to their use and behoof forever. And I, the said John Augustus Sutter, for myself, my heirs, executors and administrators, do covenant with the said Elias Grimes, Hiram Grimes, and John Sinclair, their heirs and assigns, that I am ]awfally seized in fee of the aforegranted premises, that they are free from all incumbrances, that I have good right to dispose and convey the same to the said Elias Grimes, Hiram Grimes, 124 and John Sinclair, as aforesaid, and that I will, and my heirs, executors and administrators shall, warrant and defend the same to the said Elias Grimes, Hiram Grimes, and John Sinclair, their heirs and assigns, forever, against the lawful demands of all persons. It is understood and agreed that the northern boundary line commences at the mouth of the Feather river, and runs due east to the said John Augustus Sutter's northeasterly boundary line; the distance being sixteen miles. The southern boundary line runs thirteen miles. 100 The United States vs. Sutter. In testimony whereof, I, the said John A. Sutter, have hereunto set my hand and seal, this tenth day of August, in the year eighteen hundred and forty-three. JOHN A. SUTTER. [SEAL.] Signed, sealed, and delivered in presence of us~C. W. FLAGG, SAM'L A. REYNOLDS. The foregoing is a true and correct copy of a printed decument' marked Exhibit "AA," annexed to the deposition of Sam'l J. Hensley, in case No. 683, wherein Hiram Grimes claims part of New Helvetia. Witness my hand this 15th day of March, A. D. 1855. GEO. FISHER, Sec'y. Filed in office March 20th, 1855. GEO. FISHER, Sec'y. Motion and affat. of J. H. Stover, to intervene. To the honorable the members of the Board of Land Commissioners created to ascertain and settle the private land claims in the State of California: Your petitioner, Jacob H. Stover, states to this honorable board the following facts: that in the month of December, of 1850, he settled upon a tract of land in Yuba county, lying east of Feather river, and, as your petitioner is informed, believing the same to be public lands belonging to the United States, and immediately went to improving the same, and still resides thereon, and have made improvements on said lands to the value of three thousand dollars, and that he believes the place to be worth to him, if the same turns out to be public lands, at least ten thousand dollars, and he avers that he believes it to be public lands, and that he in good faith so believed it when he settled, as above stated, and that he then and for a long time afterwards 125 had not heard that the same was claimed by any private Mexican or Spanish grant. Your petitioner further says, that while he had heard of a grant for eleven leagues to one Capt. John A. Sutter in that part of the copntry, yet that grant, by his own wording, as your petitioner is informed and believes, limited the said grant to the west of Feather river, and did not extend the same to the east thereof. This appeared among the public archives, when such grants were properly recorded; but your petitioner is now informed that the said Sutter, or at least those who claimed under him, pretend there was some mistake in the wording of the said grant, and have filed the same for confirmation before this board, and are seeking to alter the limits as prescribed on the face of said grant, by parol and other evidence, and claim now that it extends east of said Feather river; and if they succeed in getting this board to confirm it to the extent claimed, it will cover and include the land so possessed and owned as beiore stated by your pe The United States vs. Sutter. 101 titioner. He also has been informed and he believes, that said John A. Sutter and John A. Sutter, jr., his son, or those who claim under them, have lately filed another grant before this board for confirmation of twenty-two leagues, to be taken out of the vacant land remaining within the limits of the first named grant, and are proceeding also in this to show the mistake before alluded to; so that, if they get it so done, they will necessarily be enabled to take and locate several hundred farms and improvements already made by other citizens east of Feather river, and, as your petitioner upon information charge the same to be so, were made without the least knowledge of the existence of the last named grant, and also with the knowledge communicated by the face of the first grant, that it did not extend east of the said Feather river; and if they can thus extend the limits of these grants, they will be able to select many hundred farms and improvements of great value, made so by citizen settlers of the United States, who settled and improved said lands under the firm'belief, as your petitioner believes, in good faith, that they were United 126 States lands, and with an honest intention not to settle or interfere with private rights. Your petitioner is informed and believes, that the last named grant was made to the said Capt. John A. Sutter and John A. Sutter, jr., his son, jointly, and that at the same time the said son was not a citizen of the Mexican republic, and as such could receive nor hold no grant of land by their laws, as that the same was void, so far as he is concerned; and he has also been informed that he is not now even a citizen of the United States. He is informed and believes the said Capt. John A. Sutter never performed the conditions required of him in the first named grant, and that those in the second are also not performed. He is also informed and believes, that in the boundaries actually called for by the first grant there are at least one hundred and fifty thousand acres of land subject to the calls of said grant, if the same should be held valid, ample to answer the calls of the second, if it should be held valid; and he believes he can show the foregoing facts, if he is allowed to define his rights in this matter. He is advised that the conditions of these grants have not been complied with; that the grants have become void; that in the grant of Capt. John A. Sutter and eleven other families, as the same is worded, that the said Sutter can only claim one-twelfth part, with some specific allowances for his extra trouble, pointed out by the laws of Mexico; that the said Sutter, junior, cannot hold anything under the last grant, if he was not a citizen of the Mexican government at the time the grant was made; and that it is the right of your petitioner, under both the Constitution and laws of the United States, to be heard in favor of his rights in respect to the matters above stated; and that if he does not appear, and the same should be confirmed, so as to take from him all he owns, that such confirmation will be conclusive and binding upon him, in such a manner as to disable him to make any proper defence to it hereafter; and that he has a right to contest before this board the question whether these grants shall be extended to the east of said Feather river, and to ask and obtain the order of this board to decide in what 102 The United States vs. Sutter. 127 manner and form the final surveys of the said pretended grants shall be surveyed (if they are confirmed) by the surveyor general of California; and that this right arises to him because he occupies in good faith the land on which he resides, and which, if public land, he of right will obtain a pre-emption right for, and which land is now claimed to be within these grants; and therefore he prays that he may be allowed to do so. JACOB H. STOVER. STATE OF CALIFORNIA, County of Yuba, ss Jacob H. Stover, being duly sworn, doth depose and say, the facts set forth in the foregoing petition are true to his own knowledge, except as to those matters stated upon information and belief, and as to those matters he believes them to be true. JACOB H. STOVER. Subscribed and sworn to 28th June, A. D. 1853. CHAS. E. FILKINS, Jus. Peace Yuba County, Cal. Filed in office July 14th, 1853. GEO. FISHER, Sec'y. Recorded in Journal, vol. 3, p. 342. GEO. FISHER, Sec'y. Opinion and decision of the board on the motion to intervene. This is a motion made on behalf of Jacob H. Stover to be allowed to appear in the case of John A. Sutter, who has filed his claim before this board to certain lands, and to contest the right of said Sutter to a confirmation of his claim. He asks that an order may be passed introducing him as a new party to the record with the full right to present proofs, and to be heard in argument in opposition to the claimant's demand, and in favor of a decree in accordance with his views of his own rights. The right of the claimant as presented in his petition is founded on a grant alleged to have been made by the Mexican authorities. The interest of Stover, who seeks to be made a party in the case, is founded on the fact that he became a settler on a portion of the land claimed by Sutter in 1850, believing it to be public land, and that he has improved it and resided on it ever since, and he claims a right to 128 it by virtue of the act of Congress of March 3d, 1853, giving pre-emption rights in certain cases in California. The interest he claims is such as to secure him in certain rights to the premises which cannot be disregarded, and which authorize him to appear and be made a party in the case before the board, and to urge his own claim in opposition to that of Sutter. To sustain the legal right of the applicant to the premises the counsel referred to the pre-emption law above mentioned, and also to several decisions of the highest judicial tribunals of the country. The decisions of the Supreme Court of the United States cited in this case show that when an equit The United States vs. Sutter. 103 able title only are inchoate, and not a perfect title is claimed under a former government which has ceded territory to the United States with a guarantee of private property, the government has the power to disregard those equities; and if Congress should grant the land to a third perosn before the equitable was repreved into a legal title, the former would hold the premises to the exclusion of the claimant under the former grant. It is then urged that Congress, in providing by the law of 1853 for pre-emption rights in California, has virtually given a preference to the pre-emptionist, and enabled him, by settling on the premises, to perfect a title in -himself to the land. If this be so, it is manifest that while Congress has provided for the adjudicationfor these claims arising under a former jurisdiction, they have at the same time put it into the power of every person, by settlement on the uncultivated portion of his land, to defeat all the rights of the claimant to perfect his title. We cannot regard this as the true condition of the case under existing legislation. The act of 1851, under which this commission is organized, has for its object the adjudication of all claims to property by grants from Spain or Mexico within the region of country ceded to the United States by the treaty Guadalupe Ilildago. It specifies the rules by which such claims shall be adjudicated, and provides on confirmation for the perfection of titles by issuing parties. The provisions of this law are in accordance with the treaty stipulations, and were intended to protect all just rights of claimants, and to consummate them by perfect grants. 129 The act granting pre-emption rights, approved March 3d, 1853, does not provide for antagonist's titles, nor was it intended to defeat the object of the former law; on the contrary, it in effect re-affirms that object by expressly and in terms excepting from sale and the rights of pre-emption, "all land claimed under any foreign grant or title." At the time this law passed, the claims were thus withheld from any other disposition by government, until the question in regard to those claims should be determined, or Congress make further disposition of them. Another law was passed, bearing the same date with that last referred to, which extends the pre-emption right to "any settler who has settled or may hereafter settle on lands heretofore reserved on account of claims under French, Spanish, or other grants which have been or shall be hereafter declared by the Supreme Court of the United States to be invalid." It is not necessary here to inquire how far this provision applies to the lands in California; if it so applies, it shows directly that it is the design of Congress in good faith to carry out the provisions of the treaty guarantying private property, and to allow no right, even of own citizens, to intervene until the claims under the former government should be fully examined and declared invalid. If it does not apply here, it still exhibits none the less clearly the policy of the government in regard to these two classes of claimants. We are satisfied from a view of the statuts, and of the judicial decisions cited by the counsel, that the law has given no pre-emption right which will enable a settler to defeat the claimant under a Mex 104 The United States vs. Sutter. ican grant, while the same is undergoing an examination before the proper authority, with a view to perfect his title if found to be just and valid. But if this were not so, it is not in the province of this board to investigate or decide upon any claim founded on a pre-emption right to any portion of the public domain. The law on the subject has always committed the decision of such claims in the first instance to the officers of the local land office, where the lands claimed are subject to sale, and it has specified the proofs required and given the necessary instructions for a proper determination of this class 130 of interests. This commission has committed to them a different class of claims. They are confined to the ascertaining and settling of private land claims depending upon any right or title derived from the Spanish or Mexican government with reference expressly to the provisions of the treaty, in which such rights are recognized, and by which they are protected. The claim of the applicant as a pre-emption is, therefore, not one which this board can adjudicate or decide, nor could we make any decree establishing his right. The policy of the government developed in a series of acts through many successive years, however, affords reason to the applicant to believe that, as a settler, he could be allowed to purchase the land of the claim of Sutter should not prove valid. In this sense he may well be considered as having an interest in defeating this claim. It does not follow from this. however, that he can become a party to the record in this case, and be heard in person, or by his counsel, in reference to the rights of the claimant. It was for the government to determine how they would adjudicate or decide on these Spanish or Mexican claims, before what tribunal and by what rules, and with what scrutiny, by counsel or otherwise, they would investigate them. They have seen fit to appoint an officer, the law agent, to represent the interest of the government, and to oppose any claim not founded in justice, and within the provisions of the act of Congress. The applicant could claim a pre-emption right only on the ground that the ground was public domain, and not the property of the claimant, and this involves the very duty which the government has committed to the law agent, and which in every case, not within the provisions of the law, he will doubtless fully perform. The affidavit of the applicant states many objections to the claim of Capt. Sutter, all of which are such as the law agent will find it his duty to investigate, and if found to exist, will urge against the confirmation of the claim. Indeed, all that this applicant could do. if admitted as a party on the record to these proceedings, would be precisely that which the government has already provided for, at the public expense, by the appointment of a legal representative before the board. If he succeeds in his opposition to the claim, all 131 that the applicant requires is done, by declaring the land in question to be a part of the public domain, subject to any right which this applicant or any other may have to it under the laws of the land. We do not find any authority to order the appearance of a third party to be entered upon the record, or to be hcard in this case. The United States vs. Sutter. 105 Suits involving large tracts of land are seldom tried in which there are not parties interested who do not appear upon the record, and who are not heard in the case. In this case, it is said by the counsel who made the motion that there are several hundred settlers who make the same claim to portions of the premises as his client. If so, it is certain that the business of deciding on the right whether our jurisdiction cannot soon be brought to a close. The government has provided in a better manner for the rights of all parties by assuming the scrutiny of claims which might be presented, and employing able counsel to take of the interests which the applicant as well as all other persons may have in the premises. In the course of the discussion of this motion yesterday, the law agent very properly expressed his willingness at all times to consult and co-operate with the claimants or their counsel, and to receive from them any information as to facts or testimony, which they believed might tend to show the invalidity of these grants. The information of the parties here on the ground might be of great importance in showing the true character of the grant or the validity of a subsisting claim under it. It was, therefore, very proper for him to give the parties to understand his readiness to receive any aid at their hands which would put the government in the possession of any facts in the case, or render any aid in developing the true character of the claim. The commission will also in this, as in all other cases, afford every proper facility for a full and fair investigation on all sides of every fact which can bear on the rights of persons interested in the subject of adjudication. They do not, however, find the authority to allow the party making this application to be introduced as a third party on the record in the case, and they must, therefore, deny the motion. Motion denied. 132 Filed in office July 26th, 1853. GEO. FISHER, Sec'y. Mlotion. JOHN A. SUTTER ) vs. Case No. 92. UNITED STATES. ) Before U. S, Land Commissioners. In the above case, Jacob H. Stover moves the board to be allowed to intervene therein against the above claim, and for liberty to be heard in the case. This motion is founded on the facts stated in Stover's affidavit herewith filed. JOHN WILSON, Attorneyfor J. H. Stover. Filed in office July 14th, 1853. GEO. FISHER, Sec'y. 106 The United States vs. Satter. Aflidavit of John A. Sutter. CLAIM OF JOHN A. SUTTER ) Vs. No. 92. THE UNITED STATES. ) Personally appeared John A.. Sutter, claimant in the above stated case, who, being duly sworn, makes oath and says that the original deed of conveyance to claimant of John A. Sutter, jr., in said petition mentioned, conveying the interest of said John A. Sutter, junior, in and to the said land in this case claimed, is no longer within the control of claimant, the same having been destroyed ty fire among other papers in the fire in Sacramento city about the year JOHN A. SUTTER. Subscribed and sworn to before me, November 3d, A. D. 1853. R. AUGUSTUS THOMPSON, Com'r. Filed. in office Nov. 4, 1853. GEO. FISHER, Sec'y. Recorded in journal, vol. 3, page 484. GEO. FISHER, Sec'y..Motion to amend Petition. JOHN A. SUTTER, claimant, vs. No. 92. THE UNITED STATES. Before the board of land commissioners of the United States. The claimant in this case asks leave to file an amended petition in the case. CRITTENDEN, INGE & MARTIN, Attorneysfor Claimant. Filed in office March 1, 1853. GEO. FISHER, Sec'y. Recorded in journal, vol. 3, page 243. GEO. FISHER, Sec'y. 133 Motion to transfer case to another position on docket. No. 92. Claim of John A. Sutter to New Helvetia, before the board of land commissioners of the United States. The claimant moves the board to substitute this case on the trial docket in place of the case No. 300, of Fernando Felis, claimant, transferring this last case to the position on the docket in which No. 92 now stands. CRITTENDEN, INGE & MARTIN, Att'ys for Sutter. The United States vs. Sutter. 107 We consent to the above change on the docket. Filed in office March 28th, 1853. GEO. FISHER, Sec'y. Recorded in journal, vol. 3, p. 304. GEO. FISHER, Sec'y. Order to withdraw Petition. No. 92. Ordered, on motion of claimant's counsel, that the amended petition in this case be considered as withdrawn, and that the case stand on the original petition. This order to be entered as of Tuesday, the 18th of July, inst. Filed in office July 18th, 1854. GEO. FISHER, Sec'y. Recorded in journal, vol. 3, p. 721. GEO. FISHER, Sec'y. Notice for motion to intervene. MR. CRITTENDEN, Attorney for Gen'l John A. Sutter. SIR: You will please take notice, that in the case of the claims of Gen'l J. A. Sutter, filed before the board of land comm's for confirmation, I will make a motion on behalf Jacob H. Stover, upon affidavit made by him, and apply for leave to intervene in said case, and will man the board for leave, on the morning of 14th July, 1853, at 10 o' c. a. m. of that day. JOHN WILSON, Att' y Jor btover. July 11th, 1853. Filed in office July 14th, 1853. GEO. FISHER, Sec'y. Objections of U. S. Law Agent. No. 92. Be it remembered, that at the trial of said case the law agent objected against the claimant's counsel reading in evidence the following papers, and assigned therefore the reasons hereafter stated. Against document purporting to be a grant of 22 leagues 134 of land, from a former governor of California: Because, 1st. It is not sufficiently shown to have been executed and delivered. 2d. It is shown that one of the grantees is an alien, a minor, and not a resident of California at the date of the grant, and that he was otherwise incapable of holding. Against the first and second deposition of John J. Vioget: Because, 108 The United States vs. Sutter. 1st. It was a mere private survey. 2d. Because the survey was outside of the description contained in the grant. Against the first and second deposition of John S. Fowler: Because, Ist. He is an interested party, for whose benefit this claim is presented; and, 2d. Because his testimony is wholly irrelevant, being in reference to the matter accruing after the conquest and outside the limits set down in the grant. Against the deposition of John Bidwell: Because, 1st. It concerned matters occurring outside the grant; and, 2d. Because it is otherwise irrelevant. Against the deposition of S. B. Reading: Because, 1st. It pertains to matters outside the grant. 2d. Because it is otherwise irrelevant. Against the deposition of Sam'l J. Hensley, for the same reasons alleged against the deposition of Reading. The law agent also objects against the introduction in evidence of Antonio Senol: Because, 1st. It is an attempt to prove, by parol, that the land granted is outside the description contained in the grants. Against the deposition of Franklin Bates, Gilbert A. Grant, Samuel Brannon, J. D. Marks, and W. E. P. Hartnell, because they are each irrelevant. Against the deposition of Victor Prudon: Because, 1st. It is an attempt to vary and explain the instruments relied on in this case by parol testimony; and, 2d. Because it is irrelevant. Against the deposition of Juan Castanade: 135 Because it is an attempt to prove, by parol testimony, the fact that the claimant and his son petitioned, and the contents of said petition without showing the loss. The law agent also objects against the introduction of the espediente of the grant to W. A. Leidsdorff, because: ist. It is an attempt to vary the plain meaning of the instrument relied on by the claimants in this case by extraneous evidence; and, 2d. Because it is wholly irrelevant. The board overruled each of the foregoing objections, and admitted each of said papers in evidence, to which the law agent then and there severally excepted, and assigns the same as error. The law agent also objects against the introduction of the map offered as a copy of the original, accompanying the petition of claimant to the governor of California, on the ground that the same does not show an accurate sketch of the country, and is not proven to be a copy. Filed in office July 18th, 1854. GEO. FISHER, Sec'y. The United States vs. Satter. 109 Stipulation. JoHn A. SUTTER vs. No. 92. THE UNITED STATES. It is hereby agreed and stipulated that the testimony and deposition of John J. Vioget, taken in this case on the 17th day of October, 1853, be so far corrected and revised as relates to the position of the northwest corner of Vioget's survey, which in said deposition is stated to be one mile and a half from the junction of Feather and Yuba rivers. Whereas, on examination made on the 30th day of August, 1854, the witness found the said corner, and the marks thereon, to be the same as originally made by him for John A. Sutter in 1841; and that the said corner is distant from the said junction 136 about six miles, and not one and a half, as formerly stated in his deposition; this being shown by affidavit promised me. LOUIS BLANDING, U. S. Asso. Law Agent. Filed in office Sept. 1st, 1854, GEO. FISHER, Sec'y. Recorded in Journal, vol. 4, page 25. GEO. FISHER, Sec'y. Stipulation. Case No. 92.-Before the U. S. Board of Land Commissioners to ascertain and settle Private Land Claims in California. It is hereby stipulated and agreed by and between the parties thereto, by the respective attorneys, that the map herein filed, and marked U. T. T. No. 1, annexed to the stipulation, and certified by Leander Ransom, ch'f cl'k U. S. Sur. Gen. Office, shall be deemed, taken and considered as evidence in this case, with the same force and effect as though duly proved by said Ransom on his oath to be correct. J. H. McKUNE, Law Agent. V. E. HOWARD, For Claimant. June 22d, 1854. Filed in office June 28th, 1854. GEO. FISHER, Sec'y. [For map see original, page 136.] 137 Opinion of board by Com'r Thompson. JOHN A. SUTTER vs. No. 92. THE UNITED STATES. 5 This is a claim for thirty-three square leagues of land situated on the borders of the Sacramento, American, and Feather rivers. 11 0 The United States vs. Sutter. It is alleged by the claimant, in his petition, that on the 18th of June, 1841, Juan B. Alvaradio, being then commander general of the department of the Californias, by virtue of the power and authority in him vested, granted to the petitioner, John A. Sutter, a naturalized citizen of the republic of Mexico, eleven square leagues of the lands on the borders of the Sacramento river, in the vacant lands of the then northern frontier, as exhibited in a sketch or map annexed to his petition for the same, a copy of which accompanies his petition, marked A. (B.) excluding therefrom the lands overflowed by the currents and swelling of the rivers, and supposed to be bounded on the north by the Three Summits, (los Tres Picos,) in latitude 390 41' 45" north; on the east by the borders of the Rio de las Plumas, (Feather river;) on the south by the parallel of 38~ 49' 32" of north latitude; and on the west by the Sacramento river, and known as and called'New Helvetia," a copy of which grant accompanies his petition, marked 13 (A.) That in accordance with the terms and conditions of' said grant, legal possession of the said land was obtained by said Sutter according to the laws and customs of Mexico, which possession has continued in him and his grantees unmolested by any conflicting claim or title by any other person. He further alleges, that on the 5th day of February, 1845, Manuel Micheltorena, then being the commandant general of said department of the Californias, by virtue of the powers in him vested, granted to the said John A. Sutter and his son, John A. Sutter, jr., being naturalized citizens of Mexico, and residents of said department of the Californias, twenty-two square leagues of the sobrante or overplus of land lying within his said rancho of Nev HIelvetia, as laid down in the map, which as aforesaid accompanied the grant 138 thereof, a copy of which grant is also annexed to his petition, marked C. That legal possession of the land conveyed in the last mentioned grant was also obtained by the grantees, and has continued in them and those claiming under them up to the time of filing his petition, undisturbed by any conflicting title or claim. It is further alleged, that all the right, title, and interest of John A. Sutter, jr., in the last mentioned grant, was, by proper conveyance and for a valuable consideration, transferred to and vested in the petitioner, upon which showing and such other evidence, documentary and oral, as may be presented, he prays the commission to decide upon his claim to the lands as above described. This petition was filed on the 8th of March, 1852, and on the 1st of March, 1853, an amended or supplementary petition was filed by the claimant, confining the claim to the eleven leagues conceded by the first described grant made by Governor Alvarado on the 18th of June, 1841; but, on the hearing of the case, the last mentioned petition was withdrawn by leave of the board, and the parties proceeded to trial on the one first filed and herein set forth at length. In examining the questions wh'ch arise in the case, the evidence will first be considered in connection with the first described grant of the 18th of June, 1841. John A. Fowler testifies, that in the month of July, 1850, the claimant, John A. Sutter, placed in his hands the The United States vs. Sutter. 111 original grant from Governor Alvarado to him of eleven square leagues of land, to which was attached a map of the lands described in the grant, together with all the papers appertaining to to said grant. That he was at that time the agent of the claimant, and that said grant and other papers remained in his possession until the month of October, 185.1, when they were consumed by fire, together with his office and all its contents. This evidence is sufficient to account for the nonproduction of the grant, and to lay a foundation for the introduction of secondary evidence of the execution, delivery, and contents of the same. 139 The testimony introduced by the claimant to establish these points, consists, first, of a trace copy of an espediente from the archives of the former government, certified by the United States surveyor general for California, which contains the original petition of John A. Sutter for the grant dated June 15th, 1841, and a rough draught and a copy of the original grant dated June 18, 1841. Second, of a copy of a grant duly certified by the recorder of the county of Sacramento from the records of his office, purporting to be executed by Juan B. Alvarado, constitutional governor of the department of the Californias, and countersigned by Manuel Jimeno, secretary, which corresponds in all essential particulars with that contained in the espediente in the archives. This copy is annexed to the deposition of Joseph Clough, who swears that about the month of April, 1851, he was employed by the recorder of Sacramento county to. copy into his books the original grant from the Mexican government to Captain Sutter of eleven square leagues of land, and that the paper produced is a true copy of the original grant, with a few unimportant variations in the orthography of a few words; thathe is acquainted with the signatures of Alvarado and Jimeno, from having seen them attached to grants of lands; that he has no doubt of the genuineness of these signatures attached to the document copied by him, which bore every mark of originality. He never saw Alvarado and Jimeno write, but he judged the paper to be genuine, from the shape and quality of the paper, the two government stamps thereon, one of the years 1839 and 1840, and the prdvisional one for the years 1841 and 1842, the different handwriting in the instrument, the peculiarity of the writing, and the different inks. Third, the deposition of John Bidwe:l and W. E. P. Hartnell, both of whom testified to having seen the original grant; and fourth, the testimony of Fowler, who, in addition to his evidence of the destruction of the grant, testifies that while the grant was in his possession as the agent of John A. Sutter, he had frequent occasions to refer to it, and became familiar with its contents, and that the documents marked"Titulo," being part of Exhibit A, filed in this case, is a correct copy of 140 said grant. This portion of the testimony of Fowler is objected to by the law agent, on the ground that he is interested in the result of the claim. His first deposition appears to have been taken without objection, or any question as to the competency. In his second examination, however, the associate law agent put the question directly to him as to his interest; in reply to which he dis 112 The United States vs. Sutter. tinctly disavows any interest whatever in the result of the case. In order, however, to show such interest, the law agent subsequently introduced a deed from the claimant to the witness, dated July 1st, 1850, conveying to him a large interest in the premises claimed, and a deposition of the claimant, given in a case pending before one of the State courts, stating that he had conveyed such interest to him. If this testimony was admissible for the purpose for which it is intended, it would scarcely be sufficient to show such an interest in the witness as would disqualify him in opposition to his positive declaration on oeth tthe contrary. It by no means follows, from the fact that he hel an interest in the premises in 1850, that he still retained it in 1853, when his testimony was taken; but the testimony is clearly inadmissible to show such disqualification. The agent of the government having elected to test the competency of the witness by his own examination, and to this extent made him his witness, he cannot now introduce evidence aliunde for the purpose of discrediting him.-(lst Greenleaf's Ev., sec. 423.) Aside, however, from this view of the question, the statute of California in force at the time those depositions were taken provides "that no person offered as a witness shall be excluded by reason of his interest in the event of the action, unless he be a party or a person for whose immediate benefit it is prosecuted or defended."-(Statutes of California, chap. 142, sees. 304, 305.) This law furnishes a rule of decision to the U. S. courts in the State, and is consequently obligatoxy on this commission.-(12th Peters, p. 84.) According to this rule, if the agent of the government has succeeded in showing 141 the interest of the witness, we would have no power to exclude his testimony. In either aspect of the question, we can see no ground upon which the objection to incompetency of the witness can be sustained. But, independent of his testimony, the other facts and circumstances shown in the case are sufficient in the absence of any proofs to the contrary to raise a strong presumption in favor of the due execution of and delivery of the grant, and of the truth of the copy offered in evidence by the claimant. The existence of a copy in the archives attached to the original petition of the claimant for the land, the fact of a paper corresponding with that copy in all essential particulars, purporting to be duly signed by the governor and secretary, and to bear the government stamps and other evidences of its authenticity required by the laws of Mexico, and presenting in other respects every appearance of an original and genuine document, was offered for record at the office of the recorder of Sacramento county early in the year 1851, and admitted to record by that officer; the continued possession and occupation bv the grantee, and those claiming under h11im: of the land described, and purporting to be granted by said documri:nts from a period anterior to its date to the present time, unmol1o^tcd and unquestioned by the Mexican government or any of its fulct;-:naries,are all circumstances going to sustain such a presumption; Adding to these the testimony of Fowler and the other witnesscs e-f ereed to, they are sufficient to es The United States vs. Sutter. 113 tablish beyond reasonable doubt, the due execution of the grant to Sutter, and the admissibility in evidence of the paper marked "Titulo," in Exhibit A. Annexed to his petitioners substantially acorrect copy of the same. The making of the grant by competent authority being thus shown, its loss accounted for, and its contents proved by the best evidence which the nature of the case admits of, we will now proceed to consider the character of the grant itself, and rights acquired by the grantee under it. The grant recites, that whereas John Augustus Sutter has solicited for his own benefit, and that of twelve families, eleven square 142 leagues of land on the borders of the Sacramento river, &c., and after setting forth certain considerations and reasons for the concession, it proceeds to grant to the said Stnor Don Augusto Sutter, for him and his settlers, the said land called New Helvetia. The third article, or condition of the grant, declares that the land of which donation is made to him is of the extent of eleven square leagues, &c., and then proceeds to describe it by certain metes and bounds, which will be considered in connection with another branch of the case. The construction given by the law agent to these previsions of the grant, if understood properly, is, first, that the effect of the grant is to constitute Capt. Sutter an "empressario," within the meaning of the colonization laws of Mexico; and that this title-paper should therefore be consumed in a tripartite contract, to which the government, the grantee, and the twelve families mentioned in it, were parties. The inference which he draws from this proposition is not very clear, but, as far as it can be gathered from his brief, it appears to be, that, upon the fulfilment of the terms of the contract, the last named parties became tenants in common with the grantee in the premises granted. Secondly, that if not tenants in common, then the effect of the grant was to constitute Capt. Sutter a trustee to the extent of the interest vested by it in the twelve families referred to; and as a necessary consequence to those propositions, he was not entitled to a confirmation in his own name to the full extent of the land claimed; and third, that inasmuch as it was impossible to identify the particular twelve families intended to be benefitted by the grant, it was therefore void as to them for uncertainty. In support of this first proposition, he refers to the laws and practice of Spain in relation to the establishment of new settlements in her American provinces by empresarios, and particularly to the settlements of Stephen F. Austin in Texas, as illustrating the practice and policy of Mexico in colonizing her vacant lands under the law of the 18th August, 1824. Admitting that the grant now under consideration was an empresario grant, within the meaning of that law, we can see no 143 analogy between this case and those referred to. Austin's first contract was made with the Spanish government, and was in process of fulfilment when Mexico achieved her independence, by which Texas became a part of the newly founded republic. Austin applied immediately to the new government for a recognition and ratification of his contract, and after a long delay succeeded in [REC. CCLVIII, D. T. 1862.]-8 114 The United States vs. Sutter. getting it reaffirmed, with some modifications, according to the provisions of the Mexican colonization law of the 4th of January, 1823. That law was shortly afterwards suspended, and was finally superseded by the law of the 18th of August, 1824, which has continued in force ever since. By this last law the States were authorized to pass laws and regulations subject to its provisions for the colonization of their several demarcations. In March, 1825, the legislature of the State of Coahuila and Texas passed her law regulating colonization within her limits, and it was under this law that the subsequent contracts of Austin were made. By its provisions the title to the lands designated for colonization were vested in the empresario; he simply entered into a contract with the government to introduce a certain number df colonists within a specified time and settle them on lands contained within certain prescribed limits. The settlers on their arrival were put in possession of their respective parcels of land, and upon the completion of the contract received their titles directly fromn the government, through a commissioner appointed for that purpose, and the contractor received for his individual benefit and remuneration the amount contracted for, in proportion to the number of colonists he had introduced. These provisions were never in force in California. By the law of the 18th of August, 1824, the whole subject of colonization within the territories of the republic, of which California was one, was committed to the supreme executive, and for the purpose of carrying out this provision the regulations of the 21st of November, 1828, were adopted and promulgated. They constitute the source from which the authority in California claim their power to make grants of land, and to them we must look in order to ascertain the true nature and character of the grants. Before proceeding, however, to this examination, we will 144 consider briefly the two last mentioned positions assumed by the law agent on this branch of the case, as involving to some extent the conclusion he is supposed to draw from the first. They are that the terms of the grant would constitute Captain Sutter a trustee for the twelve families mentioned in it, and that has the twelve families intended to be benefitted could not be ascertained, the grant was therefore void for uncertainty. A trust must either be created directly by the express terms of the deed, or it must result by necessary implication, arising from the evident intention of the parties and the nature of the transaction. Be it in either case, it would be subject to the general principle "that whatever would be the rule of law if it was a legal estate is applied in equity to a trust estate. —(Greenleaf's Ev., vol. 1, p. 406:) The rule of law, therefore, which requires the parties to a deed to be described with sufficient certainty to distinguish them from all others would apply equally to a trust as to any other estate created by it, and this from the obvious necessity of ascertaining who is entitled to the beneficiary interest before any estate could vest.(Ibid., vol. 4, p. 261.) An application of these principles to this case will demonstrate The United States vs. Sutter. 115 that no such trust is created, or can arise, under the grant. It recites that Sutter had solicited the lands for himself and twelve families, and in the granting clause the land is conceded to the said Don Augusto Sutter, for him and his settlers. The word settlers used hece evidently refers to the twelve families mentioned in the recital, and if any trust is created it must be in favor of them. But the grantee was not limited to the precise number of twelve; the law only prescribes that as the minimum, and leaves the contractor the liberty of increasing them ad libitum. The greater this increase the more effectually would the object and purpose of the law be answered, and we accordingly find from the testimony in the case that as early as the year 1843 a much larger number were established at different points within the supposed limits of the grant. 145 The law agent in his argument admits this excess of settlers, and calls upon the counsel for the claimant to point out the particular twelve families who are entitled to the beneficiary interest under the grant; and from the impossibility of doing so, he draws the conclusion that the grant itself is void for uncertainty. This conclusion, however, is not warranted by the rule of law applicable to the subject: where a deed is made to several parties, some of whom are capable of taking and others incapable, it shall accrue to the benefit of those only who are capable of taking.-(Greenleaf's Ev. 261.) This incapacity may arise from the want of a proper description, as well as from any other cause; and in such a case the deed would inure to the benefit of the parties sufficiently described. A deed made to the members of a mercantile firm by the name of the firm, and some of them are too imperfectly described to enable to take, those who are sufficiently described would take under the deed, and a trust would result in favor of the other members of the firm.-(7 Ship'l, 413.) The reason of this decision is evidently founded on the equal maxim, "et certum est quod certum cede potese," as it is presumed that the members of a firm can be ascertained, either by the articles of copartnership or other evidence aliunde. A trust made to the'inhabitants of the town of B or the.county of' A, if the town or county be incorporated, with defined territorial limits, is good; but if unincorporated, and the limits undefined, is void for uncertainty.-(9th Johns. 73; 8 Johns. 385.) It also seems that a grant to the inhabitants of a territory, precisely described& and bounded, may be good.-(10th Perk. 364, 3,67.) If, therefore, the grant in this case had been to Sutter, for his own. benefit and that of all the settlers within the ascertained limits, of the land, according to these authorities the grant would be good, andSutter would take, subject to the equitable rights of the settlers. But the, grant here, as we have already seen, is ta Sutter, for him and twelve tIamilies only; and as there is no limitation as to the number of settlers, and no possible means of ascertaining the particular settlers 146 in whom the beneficiary interest claimed for them would vest,. that portion of the instrument which refers to them must be rejected for uncertainty. They could there take no direct interest under the grant, either as tenants in common or as cestui cqre trust, 116 Tl7e United States vs. Sutter. and the title would inure to.the benefit of the grantee, Sutter, subject to the conditions imposed by it. But to take another view of the subject: It is manifest, from the language of the grant, that its intention was to vest the legal estate in Sutter; and the most that can be claimed by the settlers is, that they acquired an equitable interest in the premises granted. Admitting, for the sake of argument, that the title does confer on them such an interest, and that the grantee, Sutter, was in fact a trustee. for them to the extent of that interest, it is not perceived that such a state of facts could in any manner affect or control the final result of the claim. It would clearly be the duty of the commission, in such a case, to confirm the claim to the party showing himself entitled to the legal estate, leaving those claiming the equity to their remedy before the proper local tribunal for the enforcement of the trust. This doctrine is distinctly affirmed by the Supreme Court in the case of the United States vs. Patterson, reported in 15th Howard; p. 10. In that case, the validity of the original grants, and the conveyances by the grantees to the trading firm of William Burr & Co., were established by the testimony. The appellee, Patterson, claimed the interest of William Burr in the premises, by virtue of a conveyance from his heirs, which purported to be executed by their attorney in fact, Robert Thompson; but no power of attorney or other authority to Thompson to convey was produced on the trial. Upon the case thus presented, the court decided that, in consequence of. the failure of the claimant to show any authority from the heirs of Burr to Thompson to make the conveyance, a confirmation could not be made to him; but the right of the original grantees being established as between them and the United States, and transferred by proper legal conveyance to Burr, a decree was ordered to 147 be entered, confirming the grants for the use of the legal representatives of William Burr, deceased, thus saving the rights of all parties. The point was distinctly raised in the argument by the counsel for the appellee, "That the court would not undertake to settle the rights of the parties in interest, but leave them to litigate their rights in the court below or in the State tribunals." This point, as shown by the above synopsis of the case, is fully sustained by the opinion of the court; and the effect of the decision, should a patent issue to the heirs of Burr, would be to constitute them trustees for the benefit of their alconee, Patterson, in case he should be able, by the production or other competent proof of the power of attorney to Thompson, to establish his right under the conveyance to him. So, in the present case, upon the supposition that the grant created a trust in Sutter for the benefit of his settlers, a confirmation to him would not not in any manner affect or impair their rights under the grant, and he would take subject to any equities to which the cestui que trust might show themselves entitled. Having thus disposed of the objections of the law agent on this point, will return to the consideration of the original proposition, to wit: What is the true notion and character of the grant? We have already seen by the 16th article of the law of the 18th The United States vs. Sutter. 117 of August, 1824, the whole subject of colonization in the territories of the republic was committed to the supreme government. The regulation of the 21st of November, 1828, was made for the purpose of carrying out that provision of the law, and constitutes the source from which the Mexican authorities in California derive their power to make grants of land. The grant under consideration was clearly made by virtue of this authority, and in order to ascertain its true nature and intent, it will be necessary to examine it with reference to the provisions contained in the regulation. In making this examination, we are met at the very threshold by a marked distinction between this regulation and the laws of Coahuila and Texas before referred to. By these laws it will be recollected that the empresario received no title to any lands until 148 the terms of his contract had been complied with, and then only to that portion which he was to receive as a compensation for introducing the colonists, and the settlers themselves received the title for their respective parcels directly from the government through the agency of a commissioner appointed for that purpose. On the other hand, the regulation of 1828 contemplates the issuing of the grant in the first instance directly to the empresario. Its language is, that of the political chiefs of the territories are authorized to grant vacant lands in their respective territories to empresarios, families, or individuals, making no distinction either in character of the grants br the several classes of persons to which they might be made. The 2d, 3d, and 4th articles, prescribing the preliminary steps and modes of proceeding, both on the part of the petitioner and the governor, apply equally to the several classes referred to in the first. The 5th and 7th make a distinction between grants to individuals and families and those made to empresarios. The 5th provides that grants made to individuals and families shall not be definitively valid without the previous consent of the territorial deputation; and the 7th, that grants made to empresarios for them to colonize with many families shall not be held definitively valid until the approval of the supreme government be obtained. The language of this last article indicates clearly the person in whom the title to lands granted for colonization was to vest, as well as the conditions on which the grant was made. The 10th article prescribes the minimum number of families for the settlement of which a colonization grant could issue. The 11th requires the governor to designate to the lnew colonists a proportionate time within which he shall be bound to cultivate and occupy the land, on the terms, and with the number of persons or families which he may have contracted for, and imposes a penalty-of a forfeiture or avoidance of the grant for a failure on the part of the grantee to comply with its terms, reserving, nevertheless, the power in the governor to revalid:"te it in proportion to which the party may have fulfilled. 149 The 12th article directs the new colonists, after having cultivated or occupied the land agreeably to his contract, (capitulacion,) to prove the same before the municipal authority, in order that he may consolidate and secure his right of ownership, so that 118 Tlhe United States vs. Sutter. he might dispose freely thereof. The articles above enumerated embrace all the material provisions of the regulation having reference to grants made to empresarios for the purpose of colonization, and from them we adduce the following conclusions: 1st. That the political chiefs of governors of the territories of Mexico were authorized to make grants of lands directly to empresarios or contractors, for colonization in the same manner and with the same legal effect as private grants to individuals or families, with the exception that the former required the approval of the supreme government to give them definitive validity, when the latter only required the consent of the territorial deputation for that purpose. 2d. That the effect of such a grant, when ratified by the supreme government, was to vest the legal title to the land in the grantee or empresario, in consideration of which he was bound, within a specified time, to settle on the lands a stipulated number of families, which should in no case be less than twelve, thus constituing it a grant with conditions subsequent. 3d. That the grant so made was subject to forfeiture for the failure of the grantee to comply with the conditions, leaving it, however, discretionary with the governor to remit the forfeiture and revalidate the grant to the extent within which the party may have fulfilled them; or, in other words, in proportion to the number of families he may have introduced and settled on the land. 4th. That the grantee, having complied with the conditions of his grant, and proved the same before the proper municipal authority. and due record of the fact being made, the grant was discharged of the conditions and became single, vesting the title absolutely in the grantee. A careful analysis of the language and terms of the regulations fully sustains the correctness of these conclusions: The first article confers upon the political chief the power to make grants to empresa150 rios as fully and in the same terms as to the other parties described in it. The 7th provides for the approval of the supreme government, precisely as the 5th requires the consent of the territorial deputation in the other cases; it moreover declares the object for which such grants were to be made, namely, to colonize with many families, thus making the settlement of land a consideration for the grant to be discharged in future. The 11th article prescribes the penalty for the failure of the grantee to comply with the conditions of the grant, and clearly treats them as conditions subsequent, the non-performance of which involved the avoidance or forfeiture of the rights which had vested under it. It will thus be seen, that the regulation makes no distinction in the legal effect of the several classes of grants provided for by it. The only difference is in the purposes for which it is made, and the consequent variance in the character of the conditions imposed or implied by it. A grant to an individual imposed the condition of occupation or cultivation, as the considerate on which it was founded, and was usually made to him for his own benefit and that of his family, but it has never been contended that the rights of the grantee in the premises were in any de The United States vs. Sutter. 119 gree impaired by the use of this language, or that it conferred any special rights, legal, or equitable, on his family. The full right of property vested in the grantee, subject only to the general provisions of the laws on the subject, and so in the case of an empresario grant: it involves the condition of the introduction and settlement on the land of twelve or more families, according to his stipulation; and it might, as in the present case, be made to the grantee for his own benefit and that of his settlers; but the use of this language would not, any more than in the former case, confer any special rights on the settlers. The words of grant apply to the grantee alone, and those which follow were probably inserted to indicate the nature of the grant, and the purpose for which it was made. A comparison of the title now under consideration with these provisions can 151 leave but little doubt that it was intended to be a colonization or empresario grant within the provisions of the law of the 18th of August, 1824, and the regulation of 1828. It recites that the grantee had solicited the lands for his own benefit, and that of twelve families, the minimum number authorized by the regulation for grants of that description; the grant is made in accordance with the prayer of the petition to him, for his own benefit, and that of his settlers; it is also made subject to the approval of the supreme government, a condition only applicable to grants made to empresarios. Those provisions embody all the distinctive features required by the regulation in making grants of this character, and are sufficient to bring it within that class of titles. In relation to the terms and conditions on which the settlements were to be made, the regulations are entirely silent. The only provision we have been able to find on that subject is contained in the 14th article of the law of August, 1824, which simply the contracts which the empresario may make with his settlers, and imposes no restrictions on such contracts further than that they shall not be contrary to the laws of the republic. From this it would appear that the matter was left entirely to the empresario to make such arrangements with his colonies in conformity with the law and the objects of grant as might be satisfactory and advantageous to the parties. After a careful examination of this branch of the subject, we are satisfied that the effect of the grant was to vest the right of property in the grantee, Sutter, subject to the condition of settling twelve families on the premises granted; and that in making such settlements, he was at liberty to make such contract with his settlers as might be mutually agreed on between them, provided they were not contrary to the Iaw of the land, nor inconsistent with the purposes and intent of the grant. No approval of the grant by the supreme government appears to have been had. On this point, the rule laid down by the commission in cases of ordinary grants, where no approval of the deputation or departmental assembly is shown, would apply equally in the 152 present. That rule may be briefly stated as follows: That the failure of the grantee to show such approval would not vitiate the grant, but would operate to reduce his title from a legal to an equitable one, and would not affect his right to a confirmation 120 The United States vs. Sutter. where a substantial compliance with the conditions of the grant were proved. The effect. therefore, of the failure to show in the present case the approval of the supreme government, must depend upon the question whether there has been such a performance of the conditions of the grant by the grantee as would entitle him in equity to a confirmation of his claim, which question we will now proceed to consider. The grant prescribes no time within which the twelve families mentioned in it were to be settled on the land. The reason of this omission may probably be found in the fact, shown by the testimony, that at the time the grant was made the grantee, Sutter, had already a large number of persons settled in and about the establishment of New Helvetia, and within the supposed limits of the grant. It therefore became necessary that he should obtain the legal title in order to enable him to comply with the contracts he may have entered into with his settlers.under the provisional right of occupation referred to in his petition for the grant. But whether this supposition be correct or not, according to the common law, a reasonable time would be allowed for the performance of the conditions; and according to the usage and custom under the Mexican and Spanish governments, if not by the express terms of the laws, even where there was a time limited within which the conditions of occupation or cultivation were to be performed, and the party went on and occupied, according to the terms of his grant, after the expiration of the time, the rights of the grantee were always recognized and respected by the authorities. Regarding the question in either aspect, we think the evidence is sufficient to establish a compliance with the condition of settling twelve families imposed by the regulation on grants of this character. Antonio Sunol testifies that Captain Sutter commenced his 153 establishment at New Helvetia about the year 1837 or 1838; that he visited the place about a year and a half after Sutter landed, at which time the latter had erected several houses, and had fortified himself against the Indians; that there were from twenty to thirty persons, besides Indians, living there in Sutter's employment, some being employed as mechanics and some in farming. He had at that time more than two hundred acres of land in cultivation. Witness visited the place again in 1841, the year the grant was made. The establishment had then been considerably enlarged. He had tan yards on the river and workshops within the fort, and had extended his cultivation. The fort was built of adobes, and was about five hundred varas square, with artillery mounted on the walls. The number of persons had increased to some four or five hundred, including Indians. Was there again in 1842 or 1843; found still more people and more cultivated land than on his former visit. In the whole settlement there were many more people. Ranchos were established, and the people were scattered about them. There were some Americans, some Frenchmen, and some of the people of the country. He does not know how far they were under Captain Sutter. In 1843 there may have been about two hundred souls in the settlement, exclusive of Indians. He knows that there were at that time more than twelve families settled and permanently established. In his cross-ex The United States vs. Sutter. 121 amination the witness states that there were about twenty families of Europeans and Californians, and from ten to twelve of civilized Indians from the different missions, besides transient Indians who came to work and went away again. This testimony is substantially cor. roborated by the depositions of John Bidwell, Samuel J. Hensley, Pearson B. Reading, and other witnesses in the case. Bidwell testifies to the settlement of more than twelve families within the supposed limits of the grant from 1841 to 1843, and gives the names of many of the settlers, together with the dates and location of their respective settlement. The other witnesses testify to other settlements between that time and the occupation by the Americans in 1846. Samuel Kybens testifies that when he arrived in the country, in October, 1846, there were twenty-one families settled on the rancho, 154 thirteen of which had received lands of Capt. Sutter, to his knowledge. The testimony on this point establishes the fact, beyond a reasonable doubt, that at the time the grant was made, in 1841, or very shortly afterwards, the twelve families required by the law had been settled on the land, and between that period and the American occupation the number had been largely increased. It does not appear on what terms these settlements were made, or the nature of the tenure by which the lands occupied by the settlers were generally held. In some instances it is shown that sub-grants were made by the claimant to his settlers in fee simple, in others for a term of years, but in most of the cases there is no evidence as to the right or title under which the settlements were made. According to the views expressed in a former part of this opinion, that fact is not material in the decision of this question. The law appears to have left the terms of settlement to be agreed on between the empresario and his colonists, with the single restriction that they shall not be in contravention of the laws of the republic. The actual settlement and occupation of the land being the object and purpose of the law, the establishment of that fact by the proof must be considered a compliance with the terms of the grant, and sufficient to vest in the grantee, and those claiming under him, the right of property in the premises discharged of the condition. The failure, therefore, of the claimant to show the approval of the grant by the supreme government can, on this ground, present no obstacle to his right in equity to a confirmation. It is also urged by the counsel for the claimant that the repeated recognition by the Mexican authorities of the rights of the grantee under the grant is sufficient to raise a presumption it had been duly approved by the government, but, from the view taken on the subject, the decision of this point would not affect the result; it is therefore unnecessary to discuss it. It may be remarked, however, in this connection, that the several acts by the Mexican authorities in recognition of those rights and their long acquaintance in the continued and uninterrupted exercise of notorious acts of ownership 155 over the premises by the claimant, as disclosed by the testimony, are strong corroborating circumstances going to show 122 The United States vs. Sutter. that in their estimation those rights had been perfected, and his title to the same established. The only remaining question arising under this grant, is whether the descriptions contained in it are sufficient to locate and identify the land with sufficient certainty to segregate it from the public domain. No juridical possession or measurement of the land, as required by the fourth condition of the grant, was ever obtained; the validity of the title, therefore, so far as the question of location and identity is concerned, must depend upon the descriptions contained in the instrument itself, aided by such extraneous testimony as may be properly adduced for the purpose of elucidating and explaining them. In order to understand this question properly, it will be necessary to take into consideration the condition of the country, and the topographical features of the district within which the lands were to be located. It appears from the testimony that at the time Capt. Sutter commenced his settlement at New Helvetia, the country lying east of Sonoma in the north, and San Jose in the south, was in a wild and uncultivated state, inhabited only by barbarous and uncivilized tribes of Indians, whose frequent incursions and depredations upon the frontier settlements were a continued source of terror to the inhabitants. The country bordering on the Sacramento river and its tributaries presents some peculiar features. Along the borders of these streams there is, according to the testimony, a belt or strip of fertile land sufficiently elevated to be above the regular periodical overflow of the rivers, and well adapted to agricultural purposes. This belt of land varies from about one fourth of a mile to two miles in width, and gradually increases its average breadth as it ascends the rivers and approaches the mountains; as it recedes from the rivers it becomes lower, and finally sinks unto marshy or tule lands, which are overflowed by means of sloughs passing from the rivers through the high lands on their banks. These tule or marsh lands are covered with water during five or six months of the year, and a portion of 156 them during the whole year. They extend from the elevated strip of land above described, from six to ten miles back from the river, and are entirely unfit for either pasturage or cultivation. In the year 1837 or 1838, Capt. John A. Sutter, the present claimant, with the approval of the departmental authorities, as appears from his petition, commenced a settlement in the district of country above described, with the three-fold object of occupying and cultivating the lands, reclaiming the Indians from their savage habits, and erecting a barrier to their future depredations on the unprotected inhabitants of the frontier. With this view, he selected a spot near the junction of the American and Sacramento rivers, which he named New Helvetia, and collecting around him a considerable number of whites and Indians, erected fortifications and other necessary buildings, and enclosed and put in cultivation a considerable portion of land. Having demonstrated the feasibility of the experiment by three years of successful enterprise and industry, and with a view of extending and enlarging his establishment by the settlement of twelve The United States vs. Sutter. 123 families. he petitioned the governor for a grant of eleven leagues of land in his said establishment called New Helvetia, according to the sketch which accompanied his petition. This petition was promptly acceded to by the governor, and a title in due form issued to him for the lands solicited, in the preamble to which the governor takes occasion to notice in complimentary terms the service rendered to the country by what he had already accomplished. \ The question is now presented whether this grant, aided by other testimony offered by the claimant, contains a sufficient description to segregate the lands from the public domain, and invest the grantee with a right of property in the premises. The recital to the grant declares that Captain Sutter had solicited eleven leagues of land on the borders or magins (los margines) of the Sacramento river. In the granting clause the lands referred to are conceded to 157 him by the name of New Helvetia. And again, in the third article of the grant it is more particularly described as follows:' The land of which donation is made to him is of the extent of eleven square leagues, (sitios de ganado mayor) comprised in the extent (or limits) marked out by the map annexed to the espediente, without including the lands overflowed by the swelling and current of the rivers. It is bounded on the north by the Three Peaks, (los Tres Picas,) in 390 41' 45" of north latitude; on the east, the margins of Feather river; on the south by the parallel of 38~ 49' 32" of north latitude, and on the west the Sacramento river. It will be seen from this description, that the map which accompanies the original petition for the grant, and which should have been annexed to the espediente, is referred to an order to fix the location and identify the particular eleven leagues intended to be granted, and thus becomes a part of the grant for that purpose. This map is not now to be found in the espediente in the archives, committed to the custody of the U. S. surveyor general; but a traced copy of a map is filed with the petition of the claimant, which he alleges is a copy of the one annexed to his original petition and referred to in the grant. As this map forms a most material element in the identification of the land and the establishment of its boundaries, the question as to its authenticity as a copy of the original on which the grant was founded becomes important. John S. Fowler testifies on this point, that when he received the original grant for the eleven leagues of land from Capt. Sutter, in the year 1850, there was a map purporting to be executed by Vioget attached to it, which was destroyed by fire, together with the grant, in the fall of 1851, and that the map filed in the case, marked Exhibit B, is a true copy of the one so destroyed, with some immaterial exceptions. J. J. Vioget testifies, that in the month of January, 1841, he made a survey of the lands of New Helvetia for Capt. Sutter, and executed a map of the same, and that the map marked Exhibit B is, in its general outlines, a correct copy of said original map, except that some objects are omitted and some inserted, such as houses 158 and farms, which were not in the said original. Now, we know, 124 The United States vs. Sutter. from our observation,in numerous cases which have come before us, that it was a frequent custom of the Mexican authorities to annex certified copies of the maps contained in the espediente to such grants as had reference to them, for greater certainty of description, and in some cases the original map, instead of being filed with the espediente, was attached to the title, and delivered with it to the grantee. The grant to Captain Sutter was in the nature of an empresario grant, and contemplated side grants from him to his settlers; it is therefore a most reasonable inference to suppose that either the original map, or a copy of it, would be delivered with the grant, in order to enable him to satisfy them as the limits within which he was authorized to make settlements and sub-alienations.. Capt. Vioget's survey and map were made a few months before Capt. Sutter applied for his grant, and it is a legitimate presumption to suppose that the survey was made preparatory to that -application, and that the map founded upon it was intended as the one with which, under the law, he was required to accompany his petition. This presumption is greatly strengthened by the fact that the objects and lines delineated on the map correspond, in all material respects, with the words of description contained in the grant. Taking these circumstances in connection with the testimony of Fowler, who identifies the paper marked Exhibit B as a true copy of the map which he found attached to the original grant in 1850, and that of Vioget, who proves the same paper to be substantially a correct copy of the one made by him in 1841, we are led to the conclusion, with a moral certainty approaching to demonstration, that the map executed by Vioget was the one which accompanied the petition of Sutter for the grant, and which is referred to in that instrument; and that the paper marked Exhibit B is, in all essential particulars, a true copy of the same, and as such is admissible in evidence for the purpose of locating and identifying the lands claimed under the grant. 159 Admitting, then, the map in question as competent testimony for this purpose, we will now proceed to consider the evidence on this point, in connexion with the well-settled principles of law which control in disputed questions of locations and boundaries. The first of these to which we will revert is, as to the admissibility of parol proof to explain written instruments. The doctrine laid down by law agent, that parol testimony cannot be introduced to vary the language of a written instrument, or supply a defect, is unquestionably true, but it is equally true that such testimony may be adduced to ascertain the meaning and intent of the language used, and in what maner the terms of the instrument affect the property or subject-matter. In this view, evidence is admissible of all the circumstances surrounding the author of the instrument all the time of its execution. Thus, if the language of the instrument is applicable to several persons, to several parcels of land, to several monuments or boundaries, &c., evidence is admissible of extrinsic circumstances, tending to show what persons, what lands, or what boundaries or monuments were intended by the party, or to ascertain his meaning in any other respect; the rule only excluding parol evi: The United States vs. Sutter. 125 dence of other language than that which is contained in the instrument. Again, when the conveyance of an estate designates it as Blackacre, parol testimony must be admitted to show what place is known by that name. —(lst Greenleafs Ev., sections 287, 288.) In this case, by reference to the petition of Capt. Sutter for the grant, we find that he solicited eleven leagues of land in his establishment called New Helvetia, according to the land represented in the sketch or map which accompanied his petition, and in the granting clause of the title the governor concedes to him the said land called New Helvetia. The language of both these documents clearly refers to a locality with a well-recognized name and designation by which it had been previously known, and not one by which it was only to be distinguished in future. Parol evidence should therefore be admitted, as in the case of Blackacre, to show the particular locality known as New Helvetia. In the third article of the grant, however, 160 the governor proceeds to describe the land more particularly by metes and bounds, and this description, it is contended on the part of the government, leaves out the place known as New Helvetia; and itis therefore argued that all the testimony relating to that settlement should be excluded from the case. This objection of the law agent is based upon the fact that the grant calls for the line of 380 49' 32" north latitude as the southern boundary of the land, the true position of which is near the mouth of Feather river, while the settlement of New Helvetia is situated at the junction of the Sacramento and American rivers, some twenty miles south of that point. If the line of latitude above referred to furnished the only description by which the southern boundary of the tract could be ascertained, this objection would be conclusive on this branch of the question, but there are other elements which enter into its consideration which seem to have been, in a great measure, overlooked. Among these elements, the intention of the grantor at the time the grant was made is a most material one, and, in order to ascertain that intention, we must not only take the language of the grant itself, but, as has been already shown, such extrinsic circumstances as tend to show what was the subject-matter of the concession. "In ascertaining the subject conveyed, the intent governs as in other cases of contract, and the deed must receive the same interpretation it would have received by the parties themselves immediately after its execution, and the subsequent development of facts cannot affect that interpretation. "-(Greenleaf s Cruise title, 32, chap. 21; note citing 18 Wend., 157; 5th Greenleaf, 496; 6th New Ham,, 205.) "The intent of the parties, where it is not otherwise apparent, is to be" sought by giving greater effect to those things about which people are least liable to be mistaken.-(17 Massachusetts, 210; 9th Cranch, 178.) "The general rule of construction is, that the most material and most certain calls shall control those which are less certain and less material."'-(7 Wheat., 7.)' It is a general rule when all the calls of an entry cannot be complied with, because some are vague or repugnant, 126 The United States vs. Sutter. the latter may be rejected or controlled by other material 161 calls which are consistent and certain; course and distance yield to visible known and definite objects, but they do not yield unless to calls more material and equally certain."-(2 Wheat.,. 316.) "When the different parts of a description of the metes and bounds are repugnant and contradictory to each other, such parts may be rejected and such retained as will leave enough plainly and clearly to designate the land intended to be conveyed."-(lst Paine, 496.) In White vs. Engan, 1st Bay., 247, cited in 5th Greenleaf, 434, the land was considered as bounded north on Sir John Colldon, and south on Coxe; whereas, in fact, it was bounded south on Colliton, and north on Coxe. Parol testimony was admitted to correct the mistake. Here was a latent ambiguity, description and fact not agreeing. There is no question that where the course and the monument disagree the monument is to govern.-(Ibid., and 3d Greenleaf, 71., In the last cited case the court lay down the rule to be, what is more certain must prevail over that which is less certain; or, in other words, where the length or course of a descriptive line will not agree with a known and fixed monument, which is named in the deed, the inaccuracy of the line must give way to the certainty and trust of the monument. The court accordingly decided that where a line by a particular course was given to include a certain farm of A, and the course would not include the farm, the line must be changed without regard to the course called for, so as to embrace it, and they give as the reason of this decision that the farm is a well known and immovable monument, to which the mathematical line must yield. Authorities on this point might be multiplied almost ad finitum, but those adduced are sufficient to show that the position of the agent of the government in relation to cannot be sustained. The circumstances surrounding the parties at the time the grant was made, the language both of the petition for the grant and the grant itself, show conclusively the true intent and meaning of the instrument. Capt. Sutter had, some three years before, with the sancetion of the government, settled himself at a point near the junction of the American and Sacramento rivers, and had, at great expense and labor, built up an extensive settlement in that locality, which, in honor of the 162 land of his nativity, he named New Helvetia. It is natural to suppose that he would be desirous of indemnifying himself for his trouble and expense, and of obtaining the means of remunerating the settlers whom he had induced to join with him in the enterprise, by receiving a title to the lands whose value had been thus enhanced by their common efforts, and on which their settlements were established. It was the point where he had erected his fortifications to protect his settlers from the depredations of the hostile tribes, where he had constructed houses for their habitation, and had enclosed and reduced to profitable cultivation extensive fields for their common subsistence. To suppose that Capt. Sutter in selecting, and the governor in granting, the land should have intended to exclude that portion on which all his labor and money had been ex The United States vs. Sutter. 127 pended, and which was principally looked to as the reward for three years of toil, privation, and danger, in an unsettled wilderness, is an assumption so improbable, not to say absurd, so inconsistent with the terms of the grant, and the motives which usually influence human conduct, as to be utterly irreconcilable either within the rules of evidence applicable to the subject, or the plainest dictates of reason and common sense. In accordance, then, with what we might reasonably suppose would be the conduct of an intelligent and judicious man in circumstances as Capt. Sutter was, we find him, in conformity with the requirements of the Mexican law on the subject, soliciting a grant of eleven square leagues of land in his establishment called New Helvetia, and the governor responding to the solicitation by granting the land as prayed for, and designating it by the name mentioned in the petition, and by which, according to the testimony of Hartnell, the locality was generally recognized and known. The circumstances are sufficient to show most clearly that it was not only the intention of the governor to grant the lands on which the establishment of New Helvetia was situated, but that they, in fact, constituted the principal subject of the grant. In this 163 review, then, of the question, without reference to the map, and taking the words of description contained in the grant alone, and applying the rules of law as above referred to, the concession of the land known as New Helvetia, as expressed in the body of the grant, cannot be affected by the erroneous location of its southern boundary on the parallel of 380 49' 32" of north latitude, and more than the erroneous line of 390 41' 45" could carry the northern boundary beyond the "Three Peaks," the great natural monument fixing the limits on that side within which the location was to be made. The establishment of southern boundary at the point subsequently ascertained as the true position of the parallel of 380 49' 42" would be inconsistent with and repugnant to the manifest intention of the grant, as shown by the other parts of the description contained in it; its insertion on the grant was evidently, from all the circumstances disclosed by the testimony, the result of inadvertence and mistake on the part of the officer making it; it may, therefore, be rejected, and the true boundary established.-(1 Paine, 496; 3 Greenleaf, 71, before cited, and Greenleaf's Ev., vol. 4, 338, and note citing 2d Met., 41.) The effect of its adoption would be to prefer a a more mathematical line, always'more or less liable to error, to known visible and immovable monuments, and to the lines delineated on the map referred to in the grant, which would be in direct conflict with the authorities on the subject, all of which concur in giving the preference to the latter above the two former. We conclude, therefore, after the examination of the law and evidence on this point, that the southern boundary of the land cannot be located on the parallel of latitude called for by the grant, and that on ascertaining its true position, the locality known at the date of the grant as "New Helvetia," and forming, as we have seen, a material part of the subject-matter of the concession, must constitute a con 128 The United States vs. Sutter. trolling point so far as its inclusion within the limits of the survey is concerned. Although at the time the survey was made the particular locality called New Helvetia was well known and recognized both by 164 the government and and the people of the country, yet its precise extent and limits were unascertained. One object of the grant was not only to designate the exterior bounds within which the land was to be located, but also to define the particular boundaries of the tract granted by that name. For this purpose reference is made to the general features of the country, to well known natural objects and monuments, and to a map or disenio on which those objects were represented, and of the particular tract delineated. We have already shown that this map, or a certified copy of it, was annexed to the grant when it was delivered to the grantee, and was with the grant itself destroyed by fire in the year 1851. It was also shown that the exhibit marked B, and filed with the petition of the claimant, is substantially a correct copy of the map, and as such is admissible testimony to prove the location and boundaries of the land. Taking then this map in connection with the verbal descriptions contained in the grant, and the testimony of Vioget, by whom the survey and map were made, and apply the rules of law applicable to cases where a map or plat is referred to in a deed as part of the description, ail difficulty in fixing a true position of the southern boundary is at once removed. A reference to a few authorities will be sufficient to sustain fully the correctness of this position. In the case of McIver vs. Wharton, reported in 4th Wheaton, page 444, the controlling effect of the lines delineated on the plat referred to in the grant, over the courses and distances called for by the instrument, is distinctly affirmed.by the Supreme Court. The court there lay down the rule that when lines are delineated on a map or plan, and are referred to in a deed, the courses, distances, and other particulars appearing on the plan, are to be as much regarded as the true description of the land conveyed as they would be if expressly recited in the deed. In this last case the defendant in the court below offered to prove that the line as represented on the map was different from that called for in the deed, and the map was incorrect and defective, and not 165 properly describing the premises marked out; but the court rejected the testimony on the ground that he was concluded by the sketch of the back of the deed, to which reference was made, aiid this decision was affirmed by the Supreme Court. To the same effect, see 6 Humphreys, 400; 4th Sergeant and Rawle, 461; 5th Greenleaf R., 24; 3d Greenleaf, 126; 7th do., 61, etc. The map before us represents an extensive scope of territory, embracing portions of the Sacramento, Feather, and American rivers, and the intermediate country, extending from a point several miles below the mouth of the latter stream on the south, to the "Three Peaks" on the north, a distance of from forty-five to fifty miles, and embracing about the same extent- from east to west. Immediately below the American, and between that and the Sacramento river, is represented the establishment of New Helvetia. A few miles south of that point a line is drawn, crossing the Sacramento river, and pass The United States vs. Sutter. 129 ing near the southern point of a laguna, marked line of north latitude 38~ 49' 32". This line, according to the testimony of Capt. Vioget, was marked by him as the southern boundary of the land, at the time he made the survey, under the supposition that it represented correctly that parallel of latitude, though he then informed Capt. Sutter that, owing to the imperfection of the instruments with which the observations were made, he might be mistaken; subsequent and more correct observations, made by Col. Fremont about the year 1846, proved such to be the fact, and that the true position of the parallel some twenty miles further north, and near the mouth of Feather river. It is not to be presumed that the governor could be informed of the precise points where the several degrees of latitude and longitude crossed that then remote and unsettled region; and we may reasonably assume that the only information which he had on the subject was derived from the map which accompanied the petition for the grant. He therefore established the southern boundary of the land on the Sacramento, at the point there indicated, and he described it by the terms then used. Subsequent observation demonstrated that 166 description to be erroneous; but the true position of the boundary upon the ground is fully established by reference to natural objects and other monuments represented on the map, and by the testimony of Vioget, by whom the survey and map was made. This identification of the true boundary by natural or artificial monuments, by lines delineated on a map referred to in the grant, and by extrinsic testimony, must, according to all the authorities, prevail over a misdescription of course and distance, or the erroneous location of a mere mathematical or astronomical line. The southern limit of the land must therefore be considered as established at the point on the Sacramento river where the marked line of north latitude 38~ 49' 32" is represented on the map as crossing that stream, and which, at the time the grant was made, was supposed to be the true position of that parallel. Some question might arise as to the intent and meaning of the words contained in the grant, making the margins of Feather river the eastern boundary of the tract, upon the ground that, as a general rule of construction, the words by, to, or from, and others of a like import, when referring to limits or boundaries, are exclusive of the objects called for; but this rule is subject to exception when, by manifest implication, it appears that they were intended in a different sense. The ruling of the Supreme Court in the case of McIver vs. Wharton, 4 Wheaton, 444, before cited, is conclusive on this point, so far as it arises in the present case. In that case, the grant called for lands lying on Crow creek, and described them by certain courses and distances. By these calls, Crow creek would have been excluded from the tract; but a plat was annexed to the grant, and referred to as part of the description, which represented Crow creek as running through the land. The court decided that the calls for course and distance must yield to the lines represented in the map, as being more certain and expressive of the intention of the grant, and 167 as a necessary consequence, that the grantee was entitled to [REC. CCLvIII, D. T. 1862.]-9. 130 The United States vs. Sutter. the lands on both sides of the creek; so, in this case, the map represents Feather river as running nearly equidistant between the two dotted lines which form the exterior limits of the survey; the grant being made according to the map, the calls of the former would be explained and controlled by lines represented on the latter. Applying this rule, then, in connection with the testimony of Vioget, the calls of the grant for margins of Feather river were clearly intended to include the lands lying on both sides of the stream. The preceding portion of this opinion was prepared some time since upon the first submission of the case. The two members who then composed the commission being unable to agree on a decision, it was restored to the docket and re-submitted to a full board, pending which some additional testimony was taken, both on the part of the government and claimant, which is strongly confirmatory of the views herein before expressed. It may be proper also to remark, that since that time the opinions of the Supreme Court in the cases of John C. Fremont vs. The United States, and The United States vs. Archibald Ritchie, have been received. Had we previously been in possession of the views of that court, it might have superseded the necessity of examining so much in detail some of the questions presented for our consideration; but, as that examination is some degree calculated to.throw light upon the whole merits of the claim, we have not thought it necessary to make any change in the opinion on that account. We will now proceed to consider the case in reference to that portion of the claim covered by the grant, alleged to have been made by Gov. Micheltorena to John Augustus Sutter, for twenty-two square leagues of the surplus lands within the rancho called New Helvetia. The original of this grant, like the one already considered, it is alleged was destroyed by fire in the city of Sacramento, in the month of October, 1851, and the fact of such loss and destruction is established by the testimony which was considered in relation to the former one. Upon the-foundation thus laid the claimant has 168 introduced the following evidence to prove the due execution and contents of said grant. A paper marked C, purporting to be a copy of a grant made on the 5th of February, 1845, in the usual form, by Governor Manuel Micheltorena, conceding to John Augusto Sutter, and his son John A. Sutter, for the benefit of themselves and family, and in consideration of the good conduct and services which the Senor Sutter had rendered, and was at that time rendering, the surplus of land in his rancho, named New Helvetia, as laid down on the map which accompanied the grant, to the extent of twenty-two square leagues, signed Manuel Micheltorena, and Juan Castenada, secretary ad interim. John A. Fowler testifies, in relation to this document, that it is a true copy of one of the grants delivered to him by Capt. Sutter in 1850, and which was destroyed by fire, together with his office and its contents, in October, 1851. Manuel Jimeno, who was for many years, and during the whole period of Gov. Micheltorena's adminis The United States vs. Sutler. 131 tration, secretary of the departmental government of California, deposes that in the year 1843 or 1844 a petition by John A. Sutter, in the name of his son, was presented to the governor for an extension of land, which was referred to the witness for his report, to which he replied that there was no objection. The governor then stated that it was very well, and it remained to be matured on another occasion. There was a map attached to the petition; the petition was not granted, sofar as the witness was informed. Francisco Arce, who was first clerk in the office of secretary of state, testifies that at the request of Capt. Sutter he drew up for him a petition for the sobrante or overplus of the grant previously made to him by Gov. Alvarado for the settlement of twelve families, which was passed to the governor, and went through all the customary steps, was returned to the office of the secretary again, and so, he believes, was delivered to Capt. Sutter. Juan Casteneda, who was aid-de-camp to Gov. Micheltorena, and whose name appears on the paper as secretary ad interim, 169 testifies that he knows a petition was presented to the governor by Capt. Sutter, in behalf of himself and his son, for a grant of land, in the month of October, 1844; that the said Sutter had previously received a grant for the place called New Helvetia, which he represented as having distributed among his colonists, and he petitioned for a grant of the overplus or sobrante to himself and son, which was granted to them, and the title executed about the month of January or February, 1845; that he drew the deed himself, and it was executed by Governor Micheltorena in his presence at Santa Barbara, the governor having left Monterey a short time before for Los Angeles in consequence of the civil commotions. He further swears that the paper marked C, and filed in the case, he believes to be a true copy of the title drawn up by him and executed by the governor as above. stated. Henry L. Ford testifies that he was in Santa Barbara in the latter part of January and the early part of February, 1845, in the capacity of a soldier under Capt. Sutter; that shortly before they left Santa Barbara, say from the 6th to the 10th of February, 1845, Gen'l Micheltorena made a speech to the foreign volunteers, composed of Americans, English, Irish, and others, in which he said he granted to Capt. Sutter all the lands he had claimed or asked for in the Sacramento valley, and also that he had made grants of all the lands in said valley in which he had previously issued decrees of permission to occupy. He further states that in April, 1845, he had returned to New Helvetia; Capt. Sutter at his request showed him the general grant for the lands in the valley, and also the grant of the sobrante to himself and son, both of which were signed by Governor Micheltorena; that he read said papers at the time, and that, to the best of his recollection, the paper marked Exhibit C is a true copy of said grant; that at the same time he was shown a map of the lands of New Helvetia, and so expressed oir the map; that the map 110 marked Exhibit B, and filed in the case, is, to the best of his recollection, a copy of the map so shown him. 132 The United States vs. Sutter, This evidence establishes beyond a rational doubt the due execution of the grant by the governor, its delivery to the grantee, John A. Sutter, sr., and the substantial correctness of the papers marked C annexed to the petition of the claimant, as copies of said original title papers. Having shown, in considering the other branch of the case, that the boundaries, within which the particular tract granted is to be located, are defined with sufficient certainty to obviate any difficulty in that respect, we might here, under the ruling of the Supreme Court in its decisions before referred to, terminate the case by entering a decree in favor of the claimant; but some objections have been urged by the government against that portion of the claim covered by the grant now under consideration, which do not come within the purview of those decisions, and which, therefore, must be disposed of. The first of these objections to which we shall advert is, that Capt. Sutter having already acquired eleven square leagues of land by virtue of the grant of the 18th of June, 1841, he was by 12th article of the law of August, 1824, precluded from any further acquisition by grant from the government. We have already shown, in a former part of this opinion, that the first grant was an empresario grant, under the re;ilation of November, 1828; and a careful examination of the law of August, 1824, satisfies us that the limitation contained in the 12th article was not intended to apply to grants of that description, but was confined in its operation to those made to individuals and families. The language of the article is peculiar, and literally translated is as follows: "It shall not be permitted to unite in one hand as property more than one square league of irrigated land, four of temporal," (subject to the seasons,) "and six of pasturage, making eleven altogether." Now we know from the practice in Texas and other p.l)rts of Mexico that empresario grants and contracts were limited as to quantity, and were governed by the number of families which it was proposed to introduce and colonize. 171 From the nature of those contracts it never was contemplated or intended, even where the fee was vested in the empresario, that the land should remain as his exclusive property, but that the larger portion, if not the whole, should be distributed among his colonists; and we accordingly find, from the testimony in this case, that the second grant was made to Captain Sutter and his son upon the representation that the lands previously granted had been so distributed. We learn also, from the evidence; that a large portion of them was so distributed, and the grant recites that the-inquiries and investigations required by the laws and regulations were duly made. If, therefore, it was necessary to ascertain the fact of such distribution in order to give validity to the second grant, we are bound to presume that the governor was duly informed on that point before he issued it. But if there is any remaining doubt that the restriction referred to does not apply to empresario grants, we think it is entirely removed by the law of the 12th of March, 1828, in relation to the mode of acquiring property by foreigners.-(Smith's Civil Law of Spain and Mexico, page 247.) The 8th article of that law declares The United States vs. Sutter. 133 the law of the 18th of August, 1824, to be in full force, and the 10th article provides that a non-naturalized impresario shall not reserve to himself more than sixteen square leagues. Now, it is hardly to be presumed that the Mexican government would be more liberal to a non-naturalized foreigner than than to her own native or naturalized citizens; and adopting the rule of construction laid down by the Supeme Court in the case of Fremont on another point, the provision above cited " necessarily implies that, with regard to the latter, no limitation as to quantity existed." But this grant differs in another essential particular from the ordinary grants made under the colonization laws, and is based upon other considerationsthose those of occupation or cultivation. It purports upon its face to be made in consideration of the services already rendered, and which were being then rendered by Captain Sutter. This recital in the grant, taken in connexion with the oral 172 testimony in the case, would, in contemplation of law, constitute the transaction or a purchase for a valuable consideration as to the grantee, John A. Sutter, sr. John Bidwell testifies that the said Sutter was a captain in the Mexican army, and was for several years'in charge of the frontier, and kept it quiet; and had, from time to time, advised the goverment of its conditions by sending couriers to Monterey of Los Angeles; that this had been done at his own expense, and that the ground of his application for the second grant was in consideration of these services; and also that he had fulfilled the conditions of the first grant. Witness was in the employment of Captain Sutter from 1841 to 1846, and is not aware that he ever received any compensation from the government for his said services, except said grant of land. P. B. Reading testifies that Captain Sutter held the office of alcalde and captain in the Mexican service under Governor Micheltorena, and that in the winter of 1844-'45, he organized, by the governor's orders, a company of foreigners, principally Americans, and with them and Indians, to the number of about one hundred, he marched to join Governor Micheltorena in actual service, for the purpose of suppressing an insurrection of the Californians, who were in arms against his authority, and with a view of driving him from the country. We also learn, from the deposition of Henry L. Ford, that the grant was made while Captain Sutter was actually engaged in the military expedition above referred to. This evidence indicates clearly the nature and character of the services in consideration of which the grant was made, and is sufficient to constitute Captain Sutter a purchaser for a pecuniary consideration to the extent of his interest in it. This, according to the ruling of the commission, in case No. 479, for the mission of Buenaventura, would take the case out of the operation of the 12th section of the law of August, 1824, and relieve the grant from the restriction imposed by it, even if it were otherwise subject to its provisions. The second objection is, that John A. Sutter, jr., being a minor and non-resident, was incapable of acquiring lands under the laws of Mexico. 13 The United Slates vs. Sutter. 173 The fact that he was a minor and non-resident at the time of the grant is fully established by the testimony, but we have been unable to find any provision of the Mexican law prohibiting grants to minors; indeed the contrary may be inferred from the 16th article of the regulation of November 21st, 1828, which authorizes grants to be made of the unappropriated lands to the children of the adjoining proprietors, without any restriction as to minority. With regard to residence of John A. Sutter, jr., we think that it is very clear that the 15th section of the law of August, 1824, cited by the law agent, does not apply in the present case. The Mexican law prescribing rules for giving letters of naturalization provides, in the 8th article, that the naturalization of the husband and head of the family shall be considered as naturalizing the wife, and the minor or unemancipated children; and again, in the 9th article, it declares that children of Mexican citizens, born out of republic, shall be considered as born in it. These provisions conferred on John A. Sutter, jr., the same rights of citizenship which were possessed by his father; and under the rule which obtains both in the civil and common law, making the domicile of the father, in contemplation of law, the domicile of the minor children, he was as capable of acquiring real property as any other citizen of the republic. This conclusion is strongly sustained by the evidence of Manuel Jimeno on this point. In the case of Fremont. before cited, the Supreme Court says: "When there are no published reports of judicial decisions which show the received construction of a btatute, and the powers exercised under it by the tribunals or officers of the government, it is often necessary to seek information from other authentic sources, such as the record of official acts, the practice of the different tribunals and public authorities; and it may sometimes be necessary to seek information from individuals, whose official position and pursuits have given them opportunities of acquiring knowledge." These rules are particularly applicable to California, where anything like a regularly organized judiciary, or a permanent record of judicial decisions, was almost entirely unknown. 174 The witness Jimeno was for a long series of years the secretary of the departmental government of California, and the officer to whom were referred all questions, under the regulation of 1828; as to the capacity of the land to be granted, or of the grantee to take. lie is universally admitted to have been a man of intelligence, as well informed on all subjects connected with his official duties. We learn from his deposition that the petition of Capt. Sutter, in the name of his son, was referred by the governor to him for the necessary information, and that he reported that there was no objection. Had there been any legal obstacle to a grant to John A. Sutter, jr., on the score of alienage or non-residence, we are bound to presume that Jimeno would have known it and would have so stated in his report to the governor. His failure to do so, and the subsequent action of the governor in making the grant, is conclusive that no such obstacle existed, and that the grant was made in conformity with the law. Tze' United States vs. Sutter. 135 The interest of John A. Sutter, jr., in the premises appears to have been transferred by proper legal conveyance to the present claimant. After a careful and laborious examination of all questions presented in the case, and apply the rules of decision laid down for our governance in the act of Congress of the 3d of March, 1851, as expounded inthe recent decisions of the Supreme Court, we can come to no other conclusion than that the claimant is entitled to a confirmation to the full extent of the lands claimed, embracing thirty-three square leagues, to be located according to the calls of the grant within the limits described in them and delineated on the map marked B, and filed as an exhibit to the claimant's petition, to which effect a decree will be entered. 175 Decree. JOHN. A. SUTTER VS. THE-UNITED STATES. In this case, on hearing the proofs and allegations, it is adjudged by the commission that the claim of the petitioner is valid, and it is therefore decreed that the same be confirmed. The land of which confirmation is made is situated on the American, Sacramento, and Feather rivers, and is known by the name of New Helvetia, being the same which was granted to the said John A. Sutter, by grant duly executed by Gov. Juan B. Alvarado, on the 18th of June, 1841, and by a grant from Governor Manuel Mieheltorena to the said John A. Sutter, and his son, John A. Sutter, dated February 5th, 1845; the first for eleven square leagues of land; as exhibited on the sketch annexed to the proceedings, and the second for twentytwo square leagues of the sobrante or surplus of land within his rancho, named New Helvetia, as laid down on the map which accompanies the grant; the said land to be located according to the calls of the respective grants, as described and explained in the deposition of John J. Vioget, filed in the case, and within the following limits, to wit: On the south by a line drawn due east from the Sacramento river, so as to touch the most southerly point of a pond or laguna situated near said river, and about five miles south of the American river, as represented on the map filed in the case and marked B. and B. P. L., exhibit to the deposition of Juan B. Alvarado, March 15, 1855, which line is also marked on said map, lindero latitude norte 38~ 49' 32"; on the north by a line drawn due east from the Sacramento river to the southern base of the mountains known as the Buttes, and represented on the said map by the name of Los Tres Picos; and from thence until it intersects the eastern boundary of the tract as represented on said map, and described in the grant and in the depositions of the said Vioget; on the west by the said river of Sacramento, and on the east 176 by the margins of Feather river, inclusive. For more particular description, reference to be had to the copies of the grants filed and proved in the case, marked A and C, to the map marked B, 136 The United States vs. Sutter. and to the depositions of John J. Vioget and Juan B. Alvaraldo, all of which are filed among the papers in the case. R. AUG. THOMPSON, S. B. FARWELL, Commissioners. Filed in office May 15th, 1855. GEO. FISHER, Sec'y. Recorded in Record of Decisions, vol. 3, p. 32. GEO. FISHER, Sec'y. Order. And it appearing to the satisfaction of the board that the lands hereby adjudicated are situated in the northern district of California, it is hereby ordered that the two transcripts of the proceedings and decision in this case, and of the papers and evidence upon which the same are founded, be made out and duly certified by the secretary; one of which transcripts shall be filed with the clerk of the United States district court for the northern judicial district of California, and the other be transmitted to the Attorney General of the United States. Motion of U. S. associate law agent. JOHN A. SUTTER ) vs. -No. 92. THE UNITED STATES. Motion is hereby made to amend the decree entered in the aforesaid case, by striking out all the descriptive part thereof, and inserting as a description of the land confirmed, the words of description contained in the grants with reference the maps and depositions filed in the case, explanatory of such words. LOUIS BLANDING, Asso. Law Agent. August 21, 1855. Filed in office Aug. 21, 1855. GEO. FISHER, Sec'y. 177 OFFICE OF THE BOARD OF COMMISSIONERS To ascertain and settle private land claims in the State of Cal'a. I, George Fisher, secretary to the board of commissioners to ascertain and settle the private land claims in the State of California, do hereby certify the foregoing two hundred and twenty-one pages, numbered from 1 to 221, both inclusive, to contain a true, correct, and full transcript of the record of the proceedings, and of the decision of the said board, of the documentary evidence, and of the testimony of the witnesses upon which the same is founded, on file in this office, in case No. 92 on the docket of the said board, wherein John A. Sutter is the The United States vs. Sutter. 13T claimant, against the United States, for the place known by the name of " New Helvetia." In testimony whereof, I hereunto set my hand and affix my private A seal (not having a seal of office) at San Francisco, Califor[EAL.] nia, this eighth day of November, A. D. 1855, and of the independence of the United States of America the eightieth. GEO. FISHER, Sec'y. 178 179 Notice of appeal in case No. 92. OFFICE OF THE ATTORNEY GENERAL OF THE U. STATES, Washington, 31st December, 1855. 92.-" New Helvetia."-John A. Sutter, claimant. You will please take notice, that in the above case decided by the commissioners to ascertain and settle private land claims in the State of California in favor of the claimant, and a transcript of the proceedings in which was received in this office on the 3d day of December, 1855. the appeal in the district court of the United States for the northern district of California will be prosecuted by the United States. C. CUSHING, Attorney General. Endorsed: Filed February 1st, 1856. JOHN A. MONROE, Clerk. Pr. W. H. CHEVERS, Deputy. Petition. To the honorable district court of the United States for the northern district of California. THE UNITED STATES vs. No. 319. JOHN A. SUTTER. J The petitioner of the United States, by their attorney, represents, that this cause is an appreciation for a review of the decision of the board of commissioners, whereby the claim of said appellee was confirmed; that a transcript of the record of this case was filed in this court on the seventh day of November, and that a notice of appeal was filed on the 1st day of February, 1856; and that the land claimed lies in this district. That the said claim is invalid. Wherefore the appellants pray that the said decision of the board be reversed, and that this court decree the said title to be invalid. Respectfully, &c., A. GLASSELL, 180 Ass't Counsel to U. S. Att'y. Endorsed: Filed February 29, 1856. JOHN A. MONROE, Clerk. Pr. W. H. CHEVERS, Deputy. 138 The United States vs. Sutter. Answer. In the United States district court, northern district of California. Appeal from the U. S. Land Commission for the State of California, organized under the act of Congress of March 3d, 1851. THE UNITED STATES, appellants, vs. No. 319. JOHN A. SUTTER, appellee. And now comes the said appellee, by his attorney, and for answer to the petition in this case by the appellants filed, says that there is no error in the proceedings and judgment of said board of commissioners in this case had; and this the said appelleQ prays may be inquired of by the court. E. V. HOWARD, for Appellee. Endorsed: Filed March 1st, 1856. JOHN A. MONROE, Clerk. Depositions of Hannah Jane Hopper, Tod Robinson, Wm. Mace, James.. Fox, Samuel Norris, Eli Goodale, C. M. Cornell, John Bigler, and F. S. Lardner, witnesses on behalf of the United States. UNITED STATES DISTRICT COURT, Northern district of California. THE UNITED STATES) vs. JOHN A. SUTTER. SACRAMENTO, CAL'A, March 21st, 1856. On this day before me, Geo. Pen Johnston, a commissioner of the United tates for the districts of California, duly authorized to administer oaths, &c., &c., came Hannah Jane Hopper, Tod 181 Robinson, Wm. Mace, James A. Fox, Samuel Norris, and Eli Goodale, witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and were duly sworn and respectively testified, as follows: Present, J. H. McKune, former law agent, before the board of land commissioners, acting as United States district attorney, on behalf of the United States, and Lewis Sanders, jr., on behalf of claimant. Deposition of llannah Jane if!opper. Hannah Jane Hopper, being duly sworn, deposes and says as fol lows: The United States vs. Sutter. 139 Question by Att'y for U. S. What is you name, age, and place of residence? My name is Hannah Jane Hopper; my age is forty-nine years; and I reside about two miles from Sacramento, on the I street road. [Objection here offered by the att'y for the claimant to the examination of this witness, on the ground that her name is not included in the notice served, and the notice served is offered to be attached to the deposition, and is'hereto annexed, marked Exhibit A.-G. P. J.] HANNAH JANE HOPPER. Her mark. Sworn to and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. Copy of notice. In the United States district court for the northern district of California. THE UNITED STATES ) vs. S No. 319. JOHN A. SUTTER. Appeal from the U. S. land commission.-V. E. Howard, att'y for defendant. 182 Take notice that on the 21st day of March, 1856, at the hour of 12 m. of the clock, at the office of Bowie and Griffith, in Read's building, corner of J & 2d streets, in the city of Sacramento, in said State, before Geo. Pen Johnston, a commissioner of said court, duly appointed and qualified, I shall proceed to take the depositions of John Bigler, Harvey, Jesse Morrill, Eli Goodale, Wm. Carley, F. S. Lardner, E. Gay, Ellison, C. M. Cornell, Mace, T. Robinson, S. Cross, S. Norris, and others, to be read in evidence on the trial of the above entitled case on the part of the United States. Respectfully, J. H. McKUNE, Alt' yfor Plaintf/. Exhibit A.-G. P. J. Deposition of Tod Robinson. Tod Robinson, being duly sworn, deposes and says as follows: Question by Alt'y for the U. S. What is your name, age, and place of residence? My name is Tod Robinson; my age is fourty-four years, and I reside at Sacramento cityv Are you acquainted with the general character of John S. Fowler 140 The United States vs. Sutter. for truth and veracity in the community where he resides? If yea, what is it, good or bad; and, judging from that public reputation, would you believe him on his oath? I have known him personally for several years, and, so far as casual intercourse with him as a neighbor, and acting as a witness in cases in which I have been employed as a lawyer, enables me to judge of his general character for truth and veracity, I would believe him or his oath. I have never heard anything with regard to his reputatio; within the limit of my knowledge of Mr. Fowler, as thus stated, whit would induce me to disparage his word when under oath. I cannot say that I do know what his general character for truth and veracity in the community in which he resides. Have you ever had any conversation with John S. Fowler as to his interest in, and ownership of, land claimed under John A. Sutter? I~ yea, state where, when, and under what circumstances. I heard some eighteen months ago, or received the impres183 sion about that time, from some cause or source, that John S. Fowler owned a block of town lots in Sacramento adjacent to one I own; and about twelve months ago, or perhaps ten months ago, when in the vicinity of the block, I asked him if he owned it; he answered that he was the owner, and I sought to negotiate with him for its purchase. I was under the impression that Fowler was the owner of a considerable amount of the Sutter property. The block of which I have spoken is within what is claimed as the Sutter grant. Have you, from the nature of your business, been conversant with land titles in and near this city, (Sacramento;) if yea, when was the fact that John A. Sutter claimed land under a grant from Micheltorena, commonly called the Sobrante grant, first generally known? State whether any land, so far as you know, has been claimed in the courts of this country under such grant? I am a lawyer, and necessarily conversant with land titles in and near this city, having practised my profession here for a number of years. I cannot state when the fact that John A. Sutter claimed land under a grant from Micheltorena, commonly called the Sobrante grant, was first generally known. I first heard of the Sobrante grant in the spring or summer of 1851. I had made a decision, acting as district judge, with regard to the Sutter claim, and subsequently heard of the Sobrante grant, and was anxious to see it to ascertain whether there was anything in the Sobrante grant which conflicted with my decision, not having heard of it at the time the decision was made; and learning that it was in the hands of Fowler or Col. Zabriskie, I asked one or the other of them for it, and learned that it had been destroyed in a certain fire previous to that time, which consumed Mr. Fowler's and Col. Zabriskie's offices. I do not know of any lands which have been claimed in the courts of this county under the Sobrante grant. I have lived here from December, 1850, up to this time. Did you, as judge of the 6th judicial district of this State, have a case before you involving the Sutter claim; if yea, state what 184 grant it was claimed under, and whether any 22 leagues grant, within your knowledge, has ever been produced in that court? The United States vs. Sutter. 141 I did have such a case. I think it was claimed under the Alvarado; in fact, I knew it was it was the 11 league grant. No 22 league grant has ever been produced in that court within my knowledge. The case to which I refer was submitted to me in January or February, 1851. From my position as judge at that time, I was not apt to hear of grants and land titles unless they were brought before me. I was wprprised, when I heard of the Sobrante grant, that I had not heard it before in connexion with the case which I had decided. >[The att'y for claimant here objects to the whole of the foregoing deposition, questions, and answers, except the first interrogatory and answer.] Cross-examination.- Questions by Att' y for the Claimant. Have you ever seen the deed, or a copy of the deed, or the record of the deed, from John A. Sutter, sr., to John A. Sutter, jr., dated in October, 1848; if so, state whether the Micheltorena and Alvarado grants are not mentioned in that deed? I have seen a copy of a deed purporting to convey the whole of the property of John A. Sutter, sr., to John A. Suttor, jr., but I do not remember its contents with reference to the Micheltorena and Alvarado grants. TOD ROBINSON. Sworn and subscribed to before me, this 21st day of March, 1856. GEO. PEN JOHNSTON, U. S. Commissioner. Deposition of Wm. Mace. Wm. Mace, being duly sworn, deposes and says as follows: Questions by Att'y for the U. S. What is your name, age, and place of residence? [The att'y for the claimant objects to the testimony of this witness, and asserts that the witness is an occupant of the land involved in this suit, and claims adversely to the claimant.] My name is Wm. Mace; my age is twenty-six years; and I 185 now reside in Brighton township, Sacramento co., Cal'a. Did you ever have a conversation with John- S. Fowler, wherein he spoke of his interest in the land claimed by John A. Sutter; if yea, state when, where, and what that conversation was? I have had a conversation with John S. Fowler, wherein he spoke of his interest in the land claimed by John A. Sutter. In the summer or spring of 1854, it was reported that a telegraphic despatch had been received by Mayor Johnson to the effect that Sutter's claim had been confirmed. I started out to ascertain the facts in relation to the case, and met with Mr. Fowler near the Magnolia, in this city. In conversation with him at that time, I toli him I was interested in about 160 acres of land in the Sutter claim, and was anxious to have it decided; he very significantly replied, "I have got 142- Tie United States vs. Sutter. a small interest, too.' I asked him if the land he was interested in was not out by the Oak Hill House, which is about three miles from the city. He said "yes, and reaches way below Sutterville; I suppose there are two hundred settlers on the land that I. am interested in." There was nothing said more about the title than that he remarked he did not think it could be confirmed, because it had only been submitted about two weeks previous to that time. The report of the confirmation of the Sutter grant at that time proved to be false. Are you acquainted with the general character of John S. Fowler, for truth and veracity, in the community where he resides; if yea, what is it, good or bad; and, judging from that public reputation, would you believe him on his oath? I have never heard Mr. Fowler's character questioned on any subject, excepting in relation to the Sutter claim, and his interest in it; all I know with reference to Mr. Fowler's general character is in connexion with that claim, and that general character is bad. I believe Mr. Fowler would tell the truth if it was his interest so to do; I believe he would not if it was not his interest so to do. Cross-examination. -Questions by Att'y for the Claimant. How long have you resided in this State, and where, and what has been your business? 186 I have lived in California between six and seven years; the two first years of my residence I lived in the mines; for something more than a year and a half, immediately afterwards, I was connected with the police department of this city; immediately after that, for about six months, I was on a farm in Brighton township; for nearly one year then afterwards, I was keeper of of the county prison in this county; the balance of the time, until now, I have resided on a farm in Brighton township, in this county. Is the farm on which you reside within the limits of the Sutter claim, or within the lines of that claim as surveyed? I believe it is within the lines of the survey as made by Von Smidt. Do you live upon that land, or did you settle upon it, claiming under a title to be derived from John A. Sutter, the claimant in this case? I went upon it as a settler in the first place; before I went upon it to live, I got permission, through my attorney, of Mr. Gelston to occupy and improve said l:and in any manner I might think proper; that permission was grantetd i 1853. Judge McGrew, my attorney, wrote to Mr. Gelston on the obia ct, and Mr. Gelston replied, granting me the permission; so my atltorney told me, and I told him to preserve the letter, for it may be eventually wanted as evidence. I never saw the letter. Now I hav-e s-cd all my right, title and interest; have received the purchase more'y, and next Thursday I am to give possession of the place to the, purchasers, Mr. Kelly, of San Francisco, and Mr. McCoy, of Sacramne:rto city. I have already executed and acknowledged the deed i' the place, and delivered it; it is a bona fide sale. The United States vs. Sutter. 143 When you went upon that tract of land, did you not know thatthe place was within the boundaries of the land claimed by Capt. Sutter? I supposed it to be the land within the Sutter claim. Did you not apply to a grantee of John A. Sutter, no longer than last week, to purchase the Sutter title to that land? I applied to Mr. Presly Dunlap, who claims a portion of the Sutter land, to know on what conditions I could purchase it, in case it should prove to be his land. Upon what source of belief do you found your opinion of the 187 general character of John S. Fowler for truth and veracity? I don't speak of his general character any further than in relation to the Sutter claim; I have never had any prejudices against the claim; I have been rather in favor of it. In a measure, but not altogether, I have formed my opinion of the general character of John S. Fowler for truth and veracity from conversations with settlers on the claim, and my opinion has been partly made up from the contradiction which exists between the statements made me by Fowler and the facts as disclosed in the proceedings before the board of land commissioners. Fowler never offered to sell me any land in the Sutter claim. [The att'y for the claimant objects to the whole of the foregoing deposition.] WM. MACE. Sworn and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSON, U. S. Commissioner. eJxamination of Hannah J. Hopper. Examination oif'Hannah J. Hopper resumed, she being recalled. Q2uestions by att'y for the U. S. Are you acqu,'ntcd with John A. Sutter, the claimant in this case; if yea, how long hive you known him? I know John A, Sutter, and have known him since the:i11 or winter of 1849. Did you ever hlve a conversation with him about his claim to land on the Sacramernto river? If yea, state what that conversation was about, about howv many times you conversed with him about it, and the substance of iis statements. I have conver;sd with him about his claim to land on the Sacramento river. Wnon I was living here in this city, one of the first settlers here, I;irs stating to him that I was not satisfied, and then he advised me to 4::o out and settle either on the American river or in the white-oak timber, for the purpose of making me a farm there, as I had three sons then living. I told him I was dubious about it, because I had onrco before settled in a new country, in Illinois, and 144 Tmhe United States vs. Suttee. I was afraid the land might be taken away from me, and he told me not to be afraid; to write to him, and I should not be pestered; and told me if I should be disturbed by any person to write to 188 him to the Hock Farm; he said that he had once thought of settling that land himself, but had given it up, and that he had sold out the fort, which was all I heard him claim at that time. I asked him if he did not own any of that land about there, and he said he did not; that he had gone and located himself at the Hock Farm. He then told me the reason why he did not own any of that land; that he had started a man once to get him a title to the land, but that he had been disappointed, because of the difficulties and battles of Fremont down about Monterey, or somewhere there. He did not tell me anything about the quantity of land he was trying to get at the time spoken of, but said that he tried to get it about the time this gold (or, as he expressed it, yellow) fever broke out; then he went on to tell me that he didn't know why this land should not be made as present to us in California, just as they had made presents of land in Oregon; and then he said if it was not made a present to us, that it would come in by pre-emption to us who had settled on it. I talked with him about this subject four or five times, that I can remember. What I have related is about the substance of his different conversations with me. Have you ever heard John S. Fowler say whether he had any interest in the- Sutter claim before or after its confirmation; and when and where, and what did he tell you, if anything? I had a trialtin court in Sacramento in the summer of 1854, and he, John S. Fowler, came to me and asked me if I wanted another witness, for he said he had an interest in the land there, any how, out where I lived; and I turned and left him. Cross-examination. -Questions by the att'y for the claimant. When did you arrive in the State; where have you resided since, and what has been your business? That would be hard for me to tell. I arrived in this State in 1849; I lived in Sacramento from June, 1849, to January, 1850; then I left the city and went into the county, at the request and by the advice of old Gen'l Sutter; I settled first upon the American river, 189 and remained there until May, 1850, when I was forced to leave there by my husband, and then went upon the same place I now reside, where I have resided from then until now; my business has been attending to my household at home, and riding for a midwife; part of the time I have been hired out to work for my living, and to support my little family. Where is the farm on which you now live located; is it within the limits of the Sutter claim? The speculators tell me it is within the limits of the Sutter claim; the farm is right east of Mr. Keefer, and west of Mr. Collins; it is about a mile from Sutter's fort, and on the I street road. How much have you paid or-become liable to pay to attorneys, or The United States vs. Sutter. 145 to the settlers' league, for the purpose of defending this suit in the U. S. district court? I can't tell you exactly without seeing my son, who is living with me; he has put it down, and whatever he does is agreeable to me. I think my son has told me that he paid twenty dollars for him and me. When you went on to the place you now live, was there or was there not a house or tent on it of which you took possession? There was no house on it at all; there was a small tent, which my son-in-law bought from a man by the name of Holloway, on account pf my being driven away from the place on the American river, where I before lived; my son-in-law told me to occupy the tent, which I did, and lived in that tent until I got me a house built, which house stands there yet. Where I first settled on the American river is about three-quarters of a mile from where I now live, and in a northeast direction, and it is about a mile and a half northeast of the fort; my husband had left me three years before I came to this county, and had broken me up three times, taking my property and treating me badly, and his bad treatment made me leave him on the place on the American river; all this was before I got a bill of divorce from him. Do you claim the property on which you now live under a title adverse to the claimant in this case; and if so, what title is it? I claim under a settler's title. Gen'l Sutter has never been 190 on my place in the county while I was there; I have only seen him in this city. Direct examination resumed.-Questions by att'y for the U. S. In your conversation with Gen'l Sutter with reference to a grant about which he was disappointed, did he speak of the grant to "Hock Farm," or of the grant covering this city, and the land about here? It was about this grant he got disappointed. LThe att'y for claimant objects to the whole of the foregoing deposition.] her HANNAH JANE x HOPPER. mark. Sworn to and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSTON, U.S. Commissioner. Deposition of James A. Fox. James A. Fox, being duly sworn, deposes and says as follows: Question by the att'y for the U. S. What is your name, age, and place of residence? My name is James A. Fox; I am thirty-five years of age, and live in the town of Sutter, Sacramento county, California. [REC. CCLVIII, D. T. 1862.] —10 146 The United States vs. Sutter. Are you acquainted with the general character of John S. Fowler for truth and veracity; if yea, what is it, good or bad, in the community where he resides; and judging from that public reputation, would you believe him on his oath? I am acquainted with the general character of John S. Fowler for truth and veracity to some extent; I consider it rather bad, from what I know and from what I have heard; judging from that public reputation, I would not believe him on his oath. Cross-examination. -Questions by att'y for the claimant. Are you a member, or have you ever been a member of' the settlers' league, of this county. I am not, and never have been. I have lived in Sutter since three years ago last December, and am engaged in a small dairy business. I claim the land on which I now live as a settler. I don't know whether the land on which I live is within the limits of the Sutter grant, as surveyed by Von Smidt or Vioget, or not. I was not 191 present when Vioget made any survey of that land at any time. I have no doubt but that the land on which is within the limits of the Sutter claim. I live on the land, and claim it adversely to the claim of John A. Sutter. By the confirmation of the Sutter claim I do not know or think I would gain or lose a cent, as I think I have sold out. I claim about 152 acres. I expect to get for my dairy, hlorses, wagon, &c., the sum of $4,250. The land I consider worth about the value of the improvements on it; the land, with a good title to it, I consider worth about ten dollars per acre. I have never settled on any other piece of land within the Sutter claim. What are the sources of your belief or information as to the general character of John S. Fowler for truth and veracity? I have heard people with whom I was acquainted, and people whom I did not know, and do not now remember, say that he was not a man of truth and veracity; and I say the same from my own personal knowledge. My personal knowledge grows out of my connection with a suit, in which L. Sanders, jr., was plaintiff, and I was one of the defendants. Mr. Fowler swore that some land which I occupied was worth sixty dollars a year ground rent per acre in a state of' nature, andll some other witnesses in the same case swore it was not worth five dollars a year per acre, and I know it was not worth three dollars a year per acre to me; and part of the same land has since been rented for five dollars per annum per acre. Fowler swore that land was grass land; that some, or a bigger part of it, was mowing land; and while I have occupied it it never would pay me to mow it; there were more weeds than there was grass; it would not pay me to mow it. And Fowler also swore that he knew the location of this tract that Sanders sued o —55 acres. 1 saw Mr. Sanders and his son, and Mr. Gillespie, t:le surveyor, and some others whose names I don't remember, but Mr. Fowler I did not see there at all. I knew Mr. Fowler at this time; these other men that I have mentioned I did not have much acquaintance with. He, Fowler, said the location of this land was within The United States vs. Sutter. 147 eighty rods of land that Sutter cultivated, when I don't think it could be touched within a mile. I have heard men, whom I do not know to live on the Sutter claim, or to be speculators, but whom I do 192 not now know or remember, say, and I have heard Mr. Foster, (a co-defendant in the suit of which I have spoken,) Mr. Brockway, and Mr. Colly, that Fowler's character for truth and veracity was a bad one; and I have heard public speakers say so, but I suppose they wanted office. Mr. Foster and Mr. Brockway I know to be settlers, and I have heard that Mr. Colly is also a settler. I have not formed my opinion of Fowler's truth and veracity from his testimony in the suit of Sanders against me alone. I don't think I am prejudiced against Mr. Fowler. In that suit the plaintiff recovered seventy-five dollars against the defendants. [The att'y for the claimant objects to the whole of the foregoing deposition on all legal grounds.] JAS. A. FOX. Sworn to and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner, Deposition of Samuel Norris. Samuel Norris, being duly sworn, deposes and says as follows: Questions by att'y for the U. S. What is your name, age, and place of residence? Mv name is Samuel Norris; I am thirty-three years of age, and reside in Sacramento county, Cal'a. Did you ever have a conversation with John A. Sutter, in 1844, as to the extent and location of the land claimed by him; if yea, when was it, and what did Sutter claim at that time? I had such a conversation in the spring of 1844, I think, and he claimed from some distance below Sacramento city up to the Buttes, then east to the foot-hills, then south down to the place of beginning, down below here somewhere-a place this side of the Cosumnes river. When was the fort commonly called Sutter's fort built? I don't know; they were working on it when I first knew it in 1844. It was not completed then. At the time you first came to Sutter's fort, in what condition was "Hock Farrm," and for what purpose, and what induced Sutter to build a fort when he did? When I first came to Sutter's fort I passed by " Hock Farm" shortly afterwards; there was then one good sized house and several 193 smaller houses, grass huts, &c. I don't know whether the large adobe house was finished or not; there was a "Kanaka" by the name of Harry living there in charge of the place. I don't know what induced Sutter to build a fort when he did. 148 The United States vs. Sutter. Cross-examination.-Questions by the att'yfor the claimant. Did Sutter, or did he not, have possession of the fort and the surrounding country for the purposes of grazing and agriculture from the time you came to the country up to 1848 or 1849; and was it not generally admitted by the settlers that the land belonged to him? As far as I know, he had possession of the country described in the manner described up to 1848, when he sold it to his son. I was not here in the years 1845 and 1846, and know nothing of Sutter's possession of the country during those years. SAMUEL NORRIS. Sworn to and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSTON U. S. Commissioner. Deposition of Eli Goodale. Eli Goodale, being duly sworn, deposes and says as follows: Questions by the att'y for the U. S. What is your name, age, and place of residence? My name is Eli Goodale; my age is thirty-three years, and I reside in Sacramento city, Cal'a. Did you ever hear a conversation with John S. Fowler, a witness before the board of land commissioners in this case, relative to any interest he had in the claim; if yea, when, where, with whom? And state the substance of that conversation. I have heard, or did hear, such a conversation, I think, about two years ago in this city; I had the conversation with him in person. I asked him if he had any lots to sell between D and G streets, and 3d and 6th streets, in this city; he said he thought he had: that he and Gillespie, and I think he said others, had bought Sutter's interest, as I understood him, in the city of' Sacramento; that he had not his memorandum with him, and did not know exactly where the lots laid, but that they were scattered all over the city. And at another 194 time, after the time that the news came (during the summer of the year that Johnson was mayor of the city of Sacramentothat is, the summer of 1854) that Gen'l Sutter's claim against the government for fuirnishing beef, &c., to Fremont, had been allowed. I met Fowler somewhere on I street, between 2d and 3d, and I asked him if he had looked to see what interest lie had in the Sutter claim; he said he owned an undivided interest the property with Gillespie and others, and wished me to make him an offer for his interest. I told him I would examine the record, and see him again. I never have examined the records fully; I have some. And subsequently to all this, at the time the telegraphic despatch was received of the confirmation of Sutter's title or grant, 1 was standing on the corner of 2d street, near Hasting's bank, waiting for an extra to come out containing the proceedings before the board of land commissioners. The The United States vs. Sutter. 149 extra arrived, and after reading it, I heard Mr. Fowler say he had been going ragged or naked, and living on shit for the last five years; and that the squatters (I think he termed them "land pirates," if I recollect right) had been living onhis land, riding in their carriages; and now that the Sutter title was confirmed, he thought times would change with him, and he should be able to do the same himself; and then he started towards the Magnolia and said, "Let's go and take a drink," or some of the crowd said so, and that was the last I saw of him at that time. I don't think I have had any conversation with Mr. Fowler about lands since that time. I may have had, but don't remember it. How much of the land claimed in this case is subject to overflow from the swelling and currents of the river? State your means of knowledge. There are but a few rods of the land in the limits of the city of Sacramento, not exceeding twenty acres, which are not subject to overflow; between this city and Sutterville the greater portion of the land is subject to overflow of from two to eight feet; about the balance of the land outside of the city, claimed in the grant, I know nothing. My means of knowledge consist of the fact that I have lived in the city since 1850, (about the 1st of August, 1850.) I have beeni 195 engaged in the hog business. At two freshets in the city I had from two to four hundred head of hogs, and they were running at large; and as the water rose I was obliged to pick them up in boats from the highest points of land, and compelled to boat the feed of said hogs through the streets of Sacramento city; and from having to wade through the streets, being upset frequently, and similar accidents and experience, I have had, I think, a pretty good chance of judging. There has been no year since 1850 that a good share of the city would not have been overflowed had it not been protected by the levee. How much higher did the waters of the river Sacramento, at the city of Sacramento, rise in the winter of 1853 and 1854, than in the winter of 1854 and 1855? And state how far up and down the river Sacramento does the land overflow by the swelling and current of the river. The waters rose 22 inches higher at the city of Sacramento in the winter of 1853 and 1854 than they did in the winter of 1854 and 1855. I only know that I had a ranch four or five miles up the river Sacramento some two years ago, and the waters rose so high up that far that I travelled to it in a sail-boat. All I know about the overflow down the river is what I have told as far down as Sutterville. [The attorney for the claimant objects to the whole of the foregoing deposition on all legal grounds.] Cross-examination.-Questions by the att'y for the claimant. How long have you resided in this State; where have you resided, and what is. and has been, your business? I have resided in this State since about the early part of July, 1850. I stopped about two weeks in the mines when I first came here. Since 150 The United States vs. Sutter. I came from the mines I have resided in Sacramento city, the most of the time between D and E, 5th and 6th streets, and have been engaged in all kinds of business, most. I first started an auction store in this city, in 1850. The next business I went into was that of selling newspapers, posting bills, ringing bells, &c.; and then I went into the hog business about 1851, and continued it until last 196 year. Since then I have been engaged as city pound-master, and have done, under contract with the city, some $18,000 dollars' worth of grading. I first went on the lots on which I live as a settler; since then I have bought a portion of them under a Sutter title. I bought then lot No. 6, (during the year 1856,) between D and E, 5th and 6th streets; I do not know how many lots I own adverse to the Sutter title. I hold altogether, in the city of Sacramento, an interest in nine blocks; the greater portion of the lots I own in the city of Sacramento I hold under tax titles. I do not belong to the settlers' league, and never did; I belong to the central committee of the settlers' party in this county, the object of which is to carry out the best interest of the State, in and for election purposes. I have never paid, and am not responsible for "ary a red" to defend this suit. I live on the outside of what is called the I street or New Levee, north of Lake Sutter, between that and the American fork. There was no water covered the place where I now live in the year 1850, within my knowledge, as I think there was an old levee built around the place. I think that levee was in the fall of 1850. There was a levee built around that portion of the city of Sacramento, north of I street, in the fall of 1850, and it did not break in the fall of 1851; there was no water high enough to overflow the highest part of that portion of the city in the year 1851. There was water high enough in the spring of 1855 to have overflowed two-thirds of the city of Sacramento, but for the levee; it lasted high enough to overflow about one-half of the city for nearly two months; there has not been water high enough since that time to overflow the city, or any part of it. I never was in California before the year 1850. Did you ever hear of Sutter's grant at New Helvetia or Sacramento before you came to California? I think I did hear that Sutter had a grant in California before I left the States; I never heard that Sacramento was in that grant. I have heard or did hear of Sutter's fort before I came to California, 197 I owned a ranch four or five miles above Sacramento city, between the upper and lower Marysville road; I don't know, but I suppose it is about two miles from the Sacramento river, and about three miles from the American river; I owned the ranch about two or three year ago; I hold it under purchase from a settler, and have since given it away. ELI GOODALE. Sworn to and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. The United States vs. Satter. 151 Examination of Samuel Norris. Samuel Norris, recalled, deposes and says as follows: Direct examination resumed.-Questions by att'y for the U. S. What time did you settle in the vicinity of Sacramento city? I have been permanently settled here since the year 1848, but have been here since 1847, at different times. Did you, prior to the year 1846, know any lands within the limits claimed by John A. Sutter, as heretofore described by you, claimed or held adverse to the claim of Capt. Sutter? I did not. Did Eliab Grimes claim lands within the limits of Capt. Sutter's grant as described by you, under a Mexican grant to him (Eliab Grimes) prior to the year 1846; if yea, when and where? He did. He held a grant dated in 1844, for ten leagues, located on the north side of the American river, commencing one league east of its mouth in the Sacramento river; then east three leagues; north three and ~ leagues; then west three leagues; then south to the place of beginning; being within the boundaries of the land claimed by Sutter, as I have heretofore described them. Did Wm. A. Leidesdorff, prior to the year 1846, hold land within the limits described by you of Capt. Sutter's claim, under a Mexican title to him? I do not know. Did Grimes occupy the grant made to him prior to 1846? He did; he occupied it in the spring of 1844, and since then. Did you know John Sinclair prior to the year 1846; if so, 198 where did he live? I knew him first in 1844; he then lived on the south side of the American river, in a house now occupied by Colly, and was partner, and acting as agent of Eliab Grimes, in raising and trading in stock, &c.; he was agent for Eliab and Hiram Grimes in the management and care of their ranch or grant which I have heretofore described. Did you know Allen Montgomery; if so, when, where did he live, and what was his business? I did know him in 1847 or 1848, or one of those years; he lived about five miles from this city, on the south side of American river, near where Sutter's old mill-house stood. I believe he was a blacksmith by trade; I know of no connection between him and Sutter; I don't know whether he had any connection with Sutter or not; I don't know whether he worked at his trade or not; he had a wife and family living on the place; I had no particular acquaintance with him; only knew that he had a wife and family there; his wife is now living in San Francisco. Did you know Wm. Daylor; if so, when, where, and what his business? I did know him first in 1844, and until he died; I first saw him 152 The United States vs. Sutter. outside of Sutter's fort sawing lumber; he was "jack of all trades;' a useful man. Daylor had no grant within the boundaries of Sutter's grant as described by me; he never had a Mexican grant personally anywhere. When I returned to Sacramento or Sutter's fort, in 1846 or 1847, Daylor was living on the Cosumnes river, on Sheldon's grant, claiming to have purchased one-half of it; I don't think, but don't know, whether or not Sheldon's grant was within the boundaries of the land claimed by Sutter as described by me. Did the site of the present city of Sacramento overflow in the spring of 1844? I think not; it was a very dry year. Did it overflow in 1847? The sloughs were full of water, and there was a portion of the city overflowed; the plains was not overflowed between Sutter's fort and the river; 1848 was a dry year, and the present site of the city was not overflowed; 1849, in the winter, and the spring of 199 1850, it was a wet season, and the plain from the fort to the river was overflowed; you could travel from the fort to the river in boats, by following the sloughs or low places. In March, 1852, or in the spring, some time of that year, the rise of the waters broke the levee in three places, one on the Sacramento and two on the American river, and overflowed the greater portion of the town or city of Sacramento. How far above the mouth of the American river was Sutter's millhouse, which you have heretofore mentioned in your testimony? It was about five miles, in a straight line, in a southeast direction, up the river. Captain Sutter built a mill on the American river, about fifty miles from Sacramento city, in 1847, or was interested in the building of one. Capt. Sutter had a fort at a point seven leagues from the bay of Bodega, called Presidio Ress, and a farming establishment within two leagues of the bay of Bodega; it was a large farming establishment, the largest in California. Cross-examination.-Questions by att'yfor the claimant. Under what right did Capt. Sutter claim the farming establishment at the bay of Bodega? By purchase from the Russians; he had possession of it after the Russians left. I know of no instrument of writing; all I know about it is from hearsay. Had Gen'l Sutter, from the time you first came to the county up to the time of laying out of the city of Sacramento, a road from the fort to the Sacramento river, through the present city o' Sacramento? If so, what was the landing called? He had such a road, or there was such a road, and the landing was called Sutter's embarcadero. The city of Sacramento was laid out on what was claimed as Sutter's grant, and since it was laid out it has always been recognized and claimed by Sutter, and those claiming under him, as a part of his grant. Where I have Tn e United States vs. Sutter. 153 200 said or used the word grant in this deposition I have always meant land. I know nothing about the boundaries of his grants. [The att'y for the claimants objects to the whole of the deposition on all legal grounds.] SAMUEL NORRIS. Sworn to and subscribed before me this 21st day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. Examination adjourned until to-morrow, March 22d, A. D. 1856, at 91 o'clock a. m. March 22d, A. D. 1856. Additional witnesses sworn in this case, C. M. Cornell, John Bigler, and F. S. Lardner. THE UNITED STATES) vs. JOHN A. SUTTER ) Examination adjourned from yesterday resumed this 22d day of March, A. D. 1856. Examination of Eli Goodale. Eli Goodale recalled. Direct examination resumed.-Questions by the att'y for the U. S. What is the character of your interest in property, lots or land, in and about the city of Sacramento? I have what might be termed a settler's interest in some lands of which I have possession. I also have a Sutter title to lands of which I have not possession; and had I possession of the lands held under the Sutter title, and was compelled to give up the lands of which I have possession, I consider that I would be as well off in a pecuniary point of view. Cross-examination resumed.-Questions by the att'y for the claimant. State the number of the lots and blocks, and the value of the lots, that you own under Sutter title in and about Sacramento city; and the number of the lots and blocks, and the value of the lots, that you own under a settler's title. I consider the interest I have in the two lots, Nos. 2 and 8, in 201 block between D and E, and 6th and 7th streets, which are inside of the levee, of which I have not possession, to be worth $1,000 00 for the two; I derived title to them from Julius Wetzler. I have, I think, Sutter titles to two lots, bought from D. S. Stevens, lying between D and E, 3d and 4th streets, and E and F, 5th and 6th streets; the two lots are worth ten or twenty dollars apiece; they are outside of the levee. I have in possession by 154 The United States vs. Sutter. settlers' title some six or eight lots between D and G streets, and between 3d and 6th streets; I suppose all the lots contain between two and three acres; they are all outside of the levee, and there is no demand for them; I consider them worth about twenty-five dollars an acre for tilling purposes; I think they are assessed at from ten to a hundred dollars apiece. I did not understand the question. I have, in addition to the lots just spoken of by settlers' title, in possession some eight other lots within the same boundaries last given; they contain about the same amount of land, and are about of the same value as those first testified about. These are all the lots I own by settlers' title. Direct examination resumed.-Questions by the att' yfor the U. S. What do you consider your interest worth in property under Sutter title, and what under settlers' title? I consider my interest worth a thousand dollars under each. [The att'y for the claimant here objects to the foregoing deposition in every part on all legal grounds.] ELI GOODALE. Sworn to and subscribed before this 22d day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. Deposition of C. M. Cornell. C. M. Cornell, being duly sworn, deposes and says as follows: Questions by att'y for the U. S. What is your name, age, and place of residence? My name is C. M. Cornell; my age is twenty-eight years; 202 and my place of residence Sacramento city, Cal'a. What is your profession, and what office do you hold? I am a surveyor by profession, and hold the office of city surveyor in Sacramento city. How long have you been acquainted with the topography of the country bordering on the Sacramento, and south of Feather river? I am not acquainted with the topography of the country outside of the city limits; I have been acquainted with it within the city limits about three years. What part of the land within the city limits is liable to overflow from the impulses, swellings, and currents of the river? The greater portion of it would be liable to overflow annually under ordinary circumstances if not protected by the levee. In the winter of 1854 and 1955 how high did the water rise above the level of the business part of the city of Sacramento, and how long did the water remain at and above the level of the city? The water rose over two feet above the level of the business part of the city, and remained at that height several days. The United States vs. Sutter. 155 Cross-examination.-Questions by the att'yfor the claimant. During the time in which you have been acquainted with the land within the limits of the city, has there been any year when the ordinary crops of the country could not be raised on that land? There has not. The water in the winter of 1854 and 1855 did rise above the natural banks of the river within the limits of the city. If there was no levee, there are of course some crops which could not be raised, but such crops as are generally raised about the city could be raised. Where I have spoken of the winter of 1854 and 1855, I mean the early part of the year 1855. [The att'y for the claimant objects to the whole of the foregoing deposition on all legal grounds.] C. M. CORNELL. Sworn and subscribed before me this 22d day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. 203 Deposition of John Bigler. John Bigler, being duly sworn, deposes and says as follows: Questions by the att'yfor the U. S. What is your name, age, and place of residence? My name is John Bigler; I am fifty-one years of age, and I reside at Sacramento city, Ca'a. Are you acquainted with the topography of the country bordering on the Sacramento river, and south of Feather river; if yea, how long have you been acquainted with it, and what part of it is liable to overflow from the impulses, swellings, and currents of the river? I am acquainted with the topography of the country bordering on the Sacramento river, and south of Feather river, and have been acquainted with it since September, 1849; I have seen it covered with water from the banks of the river (with the exception of a small mound or strip of land immediately on the bank, which is very narrow) back to the bluffs; the distance between the points I do not exactly know; it was so covered in 1850, in the spring; in 1851 I was absent from this part of the country, and know nothing about it; in 1852 it was again so overflowed; I have no recollection about it in 1853; in the spring of 1854 there was water covering a large portion of the country I have before described: I have no recollection of the height of the water in 1855; the strip [ have before testified about, I should think, from its appearance, had been or was an Indian mound, and is located about three miles above the city; the city of Sacramento is within the boundaries of the overflowed country I have described; in the spring of 1850 there were large bodies of water in the lower part of the present city, now protected by the levee, and there was water on the low slough lands, between 2d street and the river. Dr. White left San Jose in January, 1850, and returned to Sacramento on account 156 Tclhe United States vs. Sutter. of the flood; I remeitber this, because Dr. White was then speaker of the assemIbly, and I was elected speaker to supply the vacancy; 204 on his return. I remember he told me about the flood, the suffering of the inhabitants, &c.; before I returned to Sacramento city, in May, 1850, the flood had receded considerably, still leaving the water of which I have testified in the spring of that year. In the early part of 1852 1 resided in a house situated between L and M streets, and 2d and 3d streets, and the water must have been all of five feet around my housce; I left it and took my family to the "Orleans Hotel;" at the OrleaiJ the water was on the porch on the outside of the building, but did;iot get upon the floor on the inside; the water was probably two or thrceO. inches deep on the ground around the Orleans; that ground is. think, considerably higher than the lower and other parts of the city -ot, however, higher than all other parts; the low land on the banLs of the river extends down as low as Hastings' house, in Sutterv]i Ue beyond that I am not so familiar with the land. What improvemeants 1:as the city of Sacramento made to protect herself from overflow-; when were those improvements made, and what did they cost? She has built a levee t,- protect her from inundation; it was commenced in 1850; since thaft time various changes have been made in the levee, and additions to it. These various improvements have cost several hundred thousand dollars-I have always understood, over two hundred thousand dollars; several of the streets have also been raised to be above overflow, viz: part of I, allof J, K, and part of L; what it cost the city to raise them I cannot tell, nor how high they have been raised; a part of J street, I should think, from looking at it, had been raised about four feet; I think J street is located on higher ground than K or L streets; the change in the levee, on the north side of the city, was made from the bank of the American river to the south side of Sutter lake, and was so made because of the insufficiency of the levee first built; the old levee, as it now stands, would, I think, ward off a portion of the water from the city if the new one had not bete-. built. 205 Gross-examiination.-Questions by attorney for the claimant. What is the character of the country spoken of, with reference to its use for growing the usual crops of the country? The crops of whea. barley, and corn, in the seasons I have testified above, and in the country I have described, I think could not have been raised. In the country I have described, that is, from the river to the bluffs, except on the mound I have spoken of, and on a strip of land along the American river, where vegetables and a little barley has been grown, I have seen nothing but grass; in two of the years I have testified about, in the parcels of land described I have seen vegetables grown, and in one of the years a little barley. At what period of the year does the overflow usually commence and abate? It varies in the commencement and the ) batement; in May, 1850, The Unitt d States vs. Sutter. 157 there was a considerable portion of the district of country I have described under water; I don't know how long it remained so; I don't remember the duration of the overflow in 1852 or 1853. In May, 1854, there was a considerable portion of the district of country I have described under water; don't know how long it remained so; don't know anything about it in 1855. How many seasons, on an average, does the land overflow? I have stated all the seasons I have any knowledge about, and that is all I can say on the subject. What is the general cause of these overflows? They generally result from a surplus of water, produced by snow and rains, in connection with the flatness and lowness of the country. Can you state what is generally the rainy and dry seasons in California, and its effects on the country you describe for cropping as connected with these overflows? There is more or less rain falls in the months of December, January, February, March, and April, sometimes in May. The remainder of the months of the year are generally termed the dry season. If the country was overflown to the depth I have seen it, in the parts described, I have no doubt it would destroy any species of grain crops. 206 On what portion of the country you have described, from Feather river south, could a crop be made for the majority of years, after the overflow subsides? All I can say in answer to the question is the statement I have heretofore made, and the circumstances of the several overflows I have heretofore detailed; in the country I have described the land is higher on the bank of the river than it is further back; the high portion of land on the bank I should think was not over a quarter of a mile wide. 1 have purchased all but two lots of the place I now occupy under the Sutter title, and have acquired all the titles I could to those two lots, in the absence of a Mr. Shindler, who is represented by Mr. McGlynn to be his assignee or agent of some kind, and it is from him the Sutter title must be obtained; I own an interest in one hundred and sixty acres of land in the Gelston grant, which I purchased of Mr. Nickerson, after consultation with Gilbert A. Grant, who claims to be part owner of the Gelston grant. I understand there is a controversy between those holding under Sutter and Gelston; with regard to this land I understand that Gelston claims adversely to Sutter and his grantees; this is the only interest I have in lands claimed by John A. Sutter, adversely or otherwise. Did you or not advise Patrick O'Conner and others, or any one from San Fran,:isco, in the summer of autumn of 1853, to settle on any lots or lands within what was called the Sutter claim, and, as an inducement thereto, tell him or them that you would not give twentyfive cents for all Sutter's claims? I have no recollection of anything of the kind. [The attornly for the claimant objects to the whole of the foregoing deposition on the grounds of interest, and all other legal objections.] JOHN BIGLER. 158 The United States vs. Sutter. Sworn to and subscribed before me this 22d day of March, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. 207 Deposition of F. S. Lardner. F. S. Lardner, being duly sworn, deposes and says as follows: Questions by U. S. att'y. What is your name, age, and place of residence? My name is F. S. Lardner; my age is thirty-four; and I reside in Sacramento city, Cal'a. Are you acquainted with the topography of the county bordering on the Sacramento river, and south of Feather river; if yea, how long have you been acquainted with it, and what part of it is liable to overflow from the impulses, swellings, and currents of the river? I am acquainted with the topography of the county bordering on the Sacramento river, within the limits of Sacramento city, but not beyond those limits; I have been acquainted with portion of it nearly seven years prior to this time and until now. The most of the land on the river, within the city limits, is liable to overflow, if not protected by the levee. and have seen nearly ~ of it overflowed in 1850 and 1852, and 1853; and the same lands would have been overflowed, had they not been protected by the levee, in 1854. I have seen the lands overflowed to various depths, from six inches to eight feet; a strong levee is required to protect the land, and such a levee has been built about four feet high on I street, and at R street about eight feet "high." In addition to this levee the streets have been raised; t street to the average of about four feet, and as you go south the streets have to be raised higher. At what costs these improvements have been made, I am unable to say; but I should suppose the raising of the streets has cost about sixty or seventy thousand dollars; I mean J and K streets cost about that amount; but all I know on this subject is simply firom surmises on the subject. What is the character of the lands you have spoken of in the city limits, in reference to its use for growing the usual crops of the county? Outside of the levee it is cultivated for garden purposes; and I have known it, after the seeds were in the ground, to be overlowed so that the crops were destroyed at a period so late that the new crop 208 or a portion of it planted could not mature; I speak thus principally with reference to the year 1850. The first crop was again destroyed in 1853; but the overflow was not so late as to prevent me from planting and growing a second crop. Generally the land I have spoken of would produce a crop of vegetables after the overflow. Do you claim, or are you in possession of, any land within the limits of the land claimed by John A. Sutter, adversely to that claim; if so, where, and what lands are they? The United States vs. Sutter. 159 I have no property which I have not bought, paid the purchasemoney, and obtained a deed for; whether that land or property is claimed by Sutter, or any other person, I don't know; I have an interest in four lots, which it is said I have no Sutter title for. I have heard, and know that the Sutter claimants claim the whole of Sacramento city to be within the claim of John A. Sutter; I own three lots in the city, and am in possession of them under the Sutter title; and I own also, and am in possession of, eighty-five acres of land beyond the city limits, about one mile from the city, under a Sutter title, obtained from Eugene Gillespie; this is all the land or lots I own within the limits of the Sutter claim, adversely or otherwise. Whether I would lose or gain by the confirmation of the Sutter title would depend upon the price placed upon the lots 1 own by the city. I have never paid nor become responsible to pay one dollar to resist the prosecution of the claim of Sutter. I am told that I hold land adversely to the Sutter claim; I do not know it, because I have not examined the records. I paid one hundred dollars, I think, for one of the lots. and five hundred dollars for the other lots, I am told I hold adversely to Sutter; I can't tell what the lots are worth; they are not Droductive; they are assessed (three of them) at five hundred dollars piece. Direct examination resumed.-Questions by the U. S. attorney. In what part of the city did you live; and could ordinary 209 crops be raised throughout the extent of the city the greater number of years in which you have lived here? -1 lived between A and B streets, I believe, and between 5th and 7th, on the north side of the city. Ordinary crops would have to be planted twice throughout the greater part of the city, in the northern part, the majority of years I have lived there. C oss-examination resumed. - Questions by the att' y for the claimant. Did you or did you not live in a part of the city lower than the greater portion of it? There was a portion of my ranch higher, and a part lower, than the greater part of the city; there may be a slight difference between the height northern and southern banks of the slough on which I lived, in favor of the southern bank. The overflows of which I have estified lasted from one to four weeks, in different years. I have no recollection of having seed wheat, barley, corn, or oats on the lands overflowed, after the overflow. I can't tell you the extent of the city, except that it runs in streets from 1st to 31st street in one direction, and in another direction from the 1st letter in the alphabet to the last letter of the alphabet, in the names of the streets two ways, "north and south.' [ he att'y for the claimant objects to the whole of the foregoing deposition, on the grounds of interest, and all other legal objections.1 F. S. LARDNER. 110'The United States vs. Sutter. Sworn to and subscribed before me this 22d d1i, of March, A. Do 1856. GEO. PEN JOHNSTON, U. S. Commissioner. Examination adjourned " sine die." 210 Exhibit A-G. P. J. In the United States district court for the northern district of California. THE UNITED STATES) vs. No. 319. JOHN A. SUTTER. ) Appeal from the U. S. land commission. V. E. HOWARD, Esq., Attorney for Defendant: Take notice, that on the 21st of March, 1856, at the hour of 10 a. m., at the office of Bowie and Griffith, in Read's building, corner of J and 3d streets, in the city of Sacramento, in said State, before Geo. Pen Johnston, a commissioner duly appointed and qualified, I shal proceed to take the depositions of Mr. Johnston, Hopper, B. Cahoon, W. L. De Witt, S. H. Marlett, H. A. Caulfield, Laufzetter. and others, to be read in evidence on the trial of the above entitled case, on the part of the United States. Respectfully, J. H. McKUNE, Att'y for Plaintiff. In the United States district court for the northern district of Cal:' fornia. THE UNITED STATES ) vs. No. 319. JOHN A. SUTTER. ) Appeal from the U. S. land commission. V. E. HOWARD, Esq., Att' yfor Defendant: Take notice, that on the 21st day of March, 1856, at 12 m. of the clock, at the office of Bowie and Griffith, in Read's building, corner of J and 3d streets, in the city of Sacramento, in said State, before Geo. Pen Johnston, a commissioner of said court, duly appointed and qualified, I shall proceed to take the depositions of John Bigler, Harvey, Jesse Morrill, Eli Goodale, Wm. Carley, F. S. Lardner, E. Gay, Ellison, C. M. Cornell, Mace, T. Robinson, L. Cross, S. Norris, and others, to be read in evidence 211 on the trial of the above entitled case, on the part of the United States. Respectfully, J. H. McKUNE, At'y for Pl'ff'. Endorsed: Filed March 27th, 1856. JOHN A. MONROE, Clerk, Per W. H. CHEVERS, Deputy Clerk. The United States vs. Sutter. 161 Dunlap's authority to act. The United States dist. court for northern dist., California. UNITED STATES, appellant, ) vs. No. 319. JOHN A. SUTTER, appellee. On appeal from board of land commissioners. I, Volney E. Howard, the attorney for the appellee in the above entitled cause, do hereby request and authorize and empower Presley Dunlap, of Sacramento city, to appear for me on behalf of the said appellee, before any persons taking depositions in the above cause, and conduct the examination of said witnesses on the part of said appellee, and fully authorize him to make any agreement in the cause in relation to the reading and taking said depositions, which to him shall seem proper. V. E. HOWARD, For J. A. SUTTER, Appellee. Sacramento, March 24th, 1856. Endorsed: Filed March 31, 1856. JOHN A. MONROE, C k. W. H. CHEVERS, Dep'ty Cl'k. 212 In the U. S. district court of the northern dist. of Cal. UNITED STATES, appellant, ) vs. JOHN A. SUTTER, appellee. ) On appeal from U. S. board of land commissioners. It is hereby stipulated and agreed by and between the attorneys for the appellant and appellees, that the depositions of John Bidwell, H. A. Caulfield, James McClatchey, James M. Sanford, Richard D. Ferguson, C. Brockway, Geo. R. Nesbitt, Thomas J. Hall, G. W. Foster, Samuel Norris, John Prentice, C. W. Hoyt, and John F. Madden, taken before Samuel Cross, a notary public in and for the county of Sacramento and State of California, at Sacramento city, may and shall be read in evidence on the trial of the above entitled cause, with the same force and effect as though duly taken on proper legal notice before a commissioner of said court, subject to all legal objections, except as to the time, place, notice, and officer taking the same. All of which are hereby expressly waived, (viz: the time, place, notice, and officer is waived;) the depositions being annexed. PRESLY DUNLAP, Att' yfor Appellee, or Claimant. March 29th, 1856. I hereby agree that these depositions shall be delivered to J. H. McKune, att'y for the U. S. in case, and for him to carry them to the clerk's office to be there filed. P. DUNLAP, Att'yfor Sutter. March 29th, 1856. [REc. ccLvIII, D. S. 1862.]-11. 162 The Unft d States vs. Sutter. 213 Deposition of John Bidwell. In the United States district court for the northern district of the State of California. THE UNITED STATES ) against No. 319. JOHN A. SUTTER. ) The deposition of John Bidwell, taken by consent of parties, before me, Samuel Cross, a notary public in and for the county of Sacramento and State of California, on this 25th day of March, 1856, in the city of Sacramento, in said county and State, pursuant to the agreement hereunto annexed. Presly Dunlap appearing on behalf of the appellee, and John H. McKune on behalf of the appellant. Question by lMr. McKune, att'yfor the U. States. No. 1. How long and where have you resided in California, and in what have you been engaged during that time? Answer. I have resided in California since November, 1841. From 1841 to 1846 I resided most of the time in Sacramento valley, in the employ of John A. Sutter, sen., the claimant. Part of that time, viz., about 14 months, I resided at Bodega, in the employ of Capt. Sutter. No. 2. Where were you, and in what employment, in the latter part of 1844, and the first three months of 1845? Answer. In the latter part of 1844 I was variously engaged. Part of the time I was trying to make a ranch at the mouth of the Sacramento river. The only other employment I had was in making locations and maps, and looking up places to locate grants. During the first three months of 1845 I was engaged in what was called "the Micheltorano war" in this country, under the command of Captain Sutter. No. 3. What time did Micheltorano march from Monterey towards Los Angeles on that expedition, and with what object? Answer. He marched from his encampment, about fifteen miles east of Monterey, on the 13th day of January, 1845. His 214 object was to sustain his authority as governor of the country against Gen. Castro, who had raised forces against him for the purpose of compelling Micheltorano to leave the country. No. 4. Iow long was Micheltorano absent from Monterey, the capital of California, on that expedition? Answer. I think he must have been absent about two and a half months. No. 5. Did he again assume the functions of governor on his return? Answer. I do not know; I was not in Monterey at that time. He came up to arrange his matters prior to leaving, and was not very long about it, as I understood. No. 6. What induced Micheltorano to leave the country, and upon what arrangement did he leave it? State also with whom, when, and where, that arrangement was made. The United States vs. Sutter. 163 Answer. The Californians rose up against, and were too strong for, him; he thought they were too strong, as I suppose. It was generally known that he made a capitulation with Castro and Pio Pico, at Caohuenga, about 12 or 14 miles north of Los Angeles. This was from the 20th to the 25th day of February, 1845, or thereabouts. The main feature of the arrangement was, that Micheltorano was to leave the country with the regular soldiers. Another was, that he should march immediately to San Pedro, for embarcation with his troops. It was generally understood that he should go to Monterey, prior to leaving for Mexico. Micheltorano did embark without delay, and came up to Monterey, and then left Monterey; my impression is that he left the country within a month after the treaty with Castro, Los Angeles was the capital after Pio Pico came into power. No. 7. How soon after the treaty of Coahuenga did you and Capt. Sutter leave the southern country for the district of 215 Sacramento? Answer. About a week, as near as I can remember. No. 8. Who acted as secretary and clerk for Capt. Sutter during the next year after that treaty, at the fort? Answer. I did. No. 9. Did you, as such clerk, frequently have occasion to examine his papers? Answer. Some kinds of papers; all such as related to accounts and business. I had. No. 10. Did you ever have occasion to converse with him about his land titles, and did he ever show you any of them? Answer. I don't remember now any particular conversation with Sutter in reference to his land titles. I read his title for the eleven leagues, and my impression is that it was at Monterey. I cannot slay positively that I had it in my hands. I frequently had occasion to converse with Capt. Sutter in reference to his land claims. No. 11. Did you ever compile a map for the use of the government of California; if so, from what data did you compile it? Answer. I made a map of the Sacramento valley for Micheltorano, and also one for Pio Pico These maps were made from the knowledge I had of the country, and from travelling over it a good deal. In the details of those maps, I never pretended to accuracy, as I had no instruments except a pocket compass. No. 12. Had you, before compiling those maps, bad conversations with Capt. Sutter in reference to his claim, and did he ever inform you what governor gave him his grant under which he claimed his land? Answer. I do not remember any particular conversation in reference to it. I frequently saw his map, having frequent occasion to refer to it in draughting sketches of lands adjacent to Sutter' s. 216 In the conversations referred to in the answer No. 10, I had reference to such as naturally arose when persons visited New Helvetia. or Sutter's establishment, for the purpose of finding locations to obtain grants. 164 Tle United States vs. Sutter. No. 13. What extent of land did Sutter claim from 1841 to 1845, excluding those years? Answer. Sutter claimed the land which was bounded or included within the parallel of 38 degrees some minutes and seconds, and the parallel of 390 33' 45", which was supposed to include the Buttes; this land all lay east of the Sacramento river, and extended east towards the Sierra Nevada. H s idea was that he would or could hold all the lands comprised within his map and between the parallels mentioned above. No. 14. What extent of lands did Sutter claim in the years 1845 and 1846? Answer. He claimed the same amount that he did before, so far as I know. He occupied the same, his cattle ran on the same, and his pretentions were the same, so far as I know. No. 15. Under what grant did he claim the land? Answer. On my arrival in this country I understood that Sutter had a grant from the Mexican government; and I always supposed that he claimed the land under that grant. I did not then know from what it came, but subsequently learned that the grant was from Alvarado. No. 16. Have any of those impressions been derived from Capt. Sutter, that it was under that grant? Answer. I cannot say positively whether they were made directly in conversation with Capt. Sutter or not. No. 17. Has he ever communicated to you, directly or indirectly, what his sources of title were? Answer. I always understood from Sutter that he claimed it under grant from the government. This was the same grant already mentioned. 217 No. 18. Did he pretend to claim any other or further right after the Micheltorano expedition of 1845 than he did before? Answer. I do not know that he did. He claimed all the country before. So far as I know, he did not to me pretend to have any additional title that I can now remember. No. 19. Was not the relationship existing between you and Capt. Sutter in 1845 and'6, such that you would have known of other title it there were any? Answer. During the year 1846, from June, I was absent, and did not see Sutter at all. If a title had been made arid brought up to this part of the country by a courier or express, I think I should have been apt to have heard it. In 1845, or the fore part of 1846, as I was with Sutter during the whole of the.year 1845, I would suppose that some time during that year the subject of the new title would have been brought up if he had received any. Frequently grants were made to lands in this valley, which I did not hear of for years afterwards. No. 20. When did you first hear that Capt. Sutter claimed lands under a grant from Micheltorano, to him and his son, for 22 leagues of land? Answer. I cannot remember what time it was, but I never heard The United States vs. Sutter. 165 of it until the land commission convened in San Francisco. I know he made application for the sobrante (surplus) in October, 1844. No. 21. Did you ever see the petition for that application? Answer. I cannot now remember positively, but I believe I did. If I saw it, it was in Jimeno's hands in Monterey, in October, 1844. It was in the handwriting of Francisco Arce. I don't recollect certainly whether I read it, or ever heard it read. I think I must have seen the petition, because I made maps to accompany it. I don't pretend to state the contents of the petition. 218 Cross-examined by Presly Dunlap, attorneyfor the appellee. Question No. 1. Was it part of your business of secretary or clerk for Capt. Sutter to take charge of his title-papers, deeds, and grants? Answer. It was not. No. 2. Did you ever have in your possession as custodian, or was you custodian of papers belonging to Capt. Sutter, of that character? Answer. Not that I can now remember. No. 3. On the map which you prepared for Micheltorano and Pio Pico, was the land which was claimed by Capt. Sutter there laid down? and if, describe it according to the best of your recollection. State also at what time you made the map. Answer. I made the map for Micheltorano in the fall of 1844, and for Pio Pico in the summer of 1845. The land claimed by Sutter was laid down on those maps; I put it down as the land called New Helvetia. On that map Sutter's lands were laid down between the parallels of latitude as described in my direct examination. No. 4. Were the maps above spoken of ever filed among the archives of the State of the department of Upper California; or what did you do with them? Answer. The one I made for Micheltorano was delivered to Jimeno, secretary of state; I sent the other to Don Juan Bandini, who was then secretary of state for Pio Pico. No. 5. Might not Sutter have received the sobrante grant while in the lower country, without your knowing it when there in 1845? Answer. Oh! yes; it is possible he might have received it without my knowing it. No. 6. Where was Micheltorano on or about February 5th, 1845? Answer. He must at that time have been either at Santa Barbara or San Buenaventura. 219 LClaimant, by his attorney, excepts to the whole of the foregoing deposition on all legal grounds, except those mentioned in the agreement hereto annexed.] J. BIDWELL. Sworn to and subscribed before me on this 25th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. 166 The United Slates vs. Sutter. Deposition of Henry A. Caulfield. Henry A. Caulfield, a witness produced on the part of the appellant, being duly sworn, deposes and says: Question No. 1. What is your name, age, and place of residence? Answer. My name is Henry A. Caulfield; my age is 32 years; residence, Sacramento city. No. 2. Were you present at an examination of John A. Sutter as a witness in a certan case tried before C. C. Sackett in and for the city of Sacramento, wherein Julius Wetzlar et al. were plaintiffs, and M. A, Milligan et al. were defendants. Answer. I was present at that examination. No. 3. Did you hear the counsel for the defendants ask Jno. A. Sutter, on such examination, a question in substance as follows: " Did you ever have any other title from the Mexican government than the one now here produced in court?" If you did hear such question, what was the reply of the said Sutter? Answer. Mr. McKune was counsel for defendants; I heard him ask that question. He answerd that he never had any other grant than that from Alvarado. It was a paper then lying on the table before him at the time. This was understood to be the original grant then lying there. It purported to be the original grant from Alvarado to Sutter, and was introduced as such by Wetzlar & Co. Cross-examination by Presly Dunlap, of counsel for the appellee. 220 Question No. 1. When did you arrive in California; where have you since resided, and what has been your occupation? Answer. I arrived in California on August 11th, 1849. I have resided in Sacramento city and county all the time since then. My legitimate business was that of a carpenter. Have also been engaged in farming, gardening, trading, &c. No. 2. During the time you have lived in the city and county of Sacramento, have you resided within the limits of the lands claimed under the grants to Sutter? Answer. I have lived in the American township within a quarter mile of the Sacramento river, and a half mile of the American river; I have also lived in Sacramento city, where I now reside. I live within the boundaries of what he now claims. No. 3. Are you in possession of, or claim a title to, or right of possession of any lots or tracts of land within the limits of what is claimed as being within the limits of Sutter's grant, adverse to said Sutter or those claiming title under him? Answer. I am. [Claimant, by his attorney, P. Dunlap, excepts and objects to the foregoing deposition, on the ground of the interest of the witness, and on all other grounds not enumerated in the annexed agreement.] H. A. CAULFIELD. Sworn to and subscribed before me on this 25th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. The United States vs. Sutter. 167 Deposition of James McClatchy. James McClatchy, a witness produced and sworn on the part of the appellant, on oath, deposes and says: Question No. 1. What is your name, age, place of residence, and occupation? Answer. My name is James McClatchy; age, 32 years; residence, Sacramento city; and occupation, editor. 221 No. 2. Were you present at an examination of John A. Sutter as a witness in an action tried before C. C. Sackett, in and for the city of Sacramento, wherein Julius Wetzlar et al. were plaintiffs, and M. A Milligan et al. were defendants? Answer. I am not certain whether this was the case at which I was present, or not; I was present at some case tried before Judge Sackett, in which the said Sutter was a witness. Wetzlar and Milligan were present. Russell & Wallace were attorneys on one side, and Judge Heslip was attorney on the other. No. 3. Did you hear the counsel for defendants ask John A. Sutter, on such examination, a question in substance as follows: "Did you ever have any other from the Mexican government than the one now here produced in court?" If you did hear such question, what was the reply of the said Sutter? Answer. Without knowing who put the question, I heard the question asked, and I understood the grant then in court to be the 11league grant, and I understood the answer to be in the negative, but cannot state positively; I believe the answer was in the negative. Cross-examination by Presly Dunlap, of counsel for the appellee. Question No. 1. When did you arrive in California; where have you since resided, and what has been your business? Answer. I arrived at San Diego in June, 1849; have been in the country ever since, and engaged in mining, publishing, and editing newspapers; my residence has been principally in Sacramento. Question No 2. When was the lawsuit referred to above had? Answer. It was in 1850 or 1851, I don't recollect which. Quest. No. 3. Was John I. McKune one of the attorneys in that case? Answer. I am not certain. 222 Quest. No. 4. Was the testimony of which you spoke taken down in writing? If so, by whom? Answer. My impression is, that it was then taken down by Judge Sackett; I am not certain about this; a portion of the testimony was afterwards published in "The Placer Times." Quest. No. 5. In what capacity was Sackett acting? Answer. As justice of the peace. Quest. No. 6. What was the nature or character of the action in which this testimony was taken? Answer. I am not certain, but my impression is that it was for a lot of land on the river bank, which Milligan had possession of. 168 The United State3 vs. Sutter. Quest. No. 7. At the time of your arrival in the city of Sacramento and since, has it not been a matter of universal notoriety that the lands within the city of Sacramento, and for some distance below- on the Sacramento river, and for some distance up the American river, were claimed as being part of the lands granted to said Sutter, and owned by him and his grantees? Answer. They were so claimed by Sutter, his grantees, and many others; these were the lands claimed; those claiming adversely to Sutter, claimed by right of possession as public lands. Quest. No. 8. At what time did you come to arrive in Sacramento city? Answer. I believe it was about February of 1850. Direct examination resumed. Quest. No. 1. Did Sutter, at the time of your arrival here, claim these lands under any grant;- if so, what grant? Answer. The first time I ever heard Capt. Sutter speak about it was early in 1850; he was then conversing with Mr. Milligan; he said then to Milligan that he had no grant here, but America had 223 come to his house; he had fed America, and America would give him this land. By the word "here," I understood the lands in and around Sacramento city. Cross-examination resumed. Quest. No. 1. Where did that conversation take place, and what are the circumstances that led to it? Answer. It took place near Mr. Milligan's house on the levee. I understood when I came up that they were conversing about that lot on which Milligan lived, and about squatters and anti-sqatters generally. Quest. No. 2. Do you notknow, within your own knowledge, at that time and since, that all the lands within the limits of the city of Sacramento were claimed by those claiming title under Sutter's grant, or grants made to Sutter? Answer. Yes; they claimed under one grant, viz: the 11-league grant. Quest. No. 3. Have you not at various times understood that there were two grants made by the Mexican government to Sutter? Answer. Yes, within the last 3, 4, or perhaps 5 years. Direct examination resumed. Quest. No. 1. Will you state the connection in which Capt. Sutter stated, in his conversation with Mr. Milligan, detailed by you above stated, that America would give him land, and the reasons he gave why America would give him this land? Answer. During that conversation he said that he had come here at an early day, built his fort, and christianized the Indians. Colonel Fremont had come here, and he (Satter) had given or let him have TDie United States vs. Sutter. 169 animals, and fed the soldiers, and that America, therefore, would give him this land. Quest. No. 2. Did you understand him as basing his claim on the United States for the confirmation or gift of this land to him on these acts of his in aiding Col. Fremont and his soldiers as officers 224 and soldiers of the United States? Answer. I understood him to say that he had no grant, and based his claims for these lands on the services here mentioned, saying it was a just claim, and the United States being just, he had no doubt would give them to him. Cross-examination resumed. Quest. No. 1. Do you now, or have you at any former period, belonged to any league, association, company, or combination, formed for the purpose of defeating before the United States board of land commissioners, and the proper courts of the county, the claims of those holding or claiming lands under' exican or Spanish grants? Answer. I never belonged to any league, combination, or company for the purpose of defeating the claims of Capt. Sutter, or any one else, before the land commissioners, or any United States court, but I have belonged to associations whose objects were to defend the settlers in the courts of this city, county, and State. Quest. No. 2. Have you not belonged, and do you not now belong, to the settlers' league of Sacramento county? Answer. I belonged to such an organization some 4 years ago, but not since. The purposes and objects of that association were principally political. Direct examination again resumed. Quest. No. 1. Do you now hold, claim, or occupy any lands adversely to the claims of Capt. Sutter? Answer. I do not. [Attorney for claimant objects and excepts to the foregoing deposition, on the grounds of irrelevancy, competency of the witness, and to the testimony in relation to Capt. Sutter's testimony, because it was reduced to writing at the time, and that writing is the best evidence, and on all other legal except those mentioned in the agreement hereto annexed.] JAMES McCLATCHY. Sworn to and subscribed before on this 25th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. 225 Deposition of James M. Sandford. James M. Sandford, a witness produced and duly sworn on the part of the appellant, deposes and says: Quest. No. 1. Where do you reside, and how long have you resided there? What is your occupation, and age, and name? 170 Tle United States vs. Sutter. Answer. My name is James M. Sandford; age, about 34 years; residence, on the east bank of the Sacramento, about 6 miles below the mouth of the American river; have resided there since the fall of 1850; my occupation is a farmer. Quest. No. 2. Are you acquainted with the lands lying on the east side of the Sacramento river, south of the American river, and between the American river and Feather river? If yea, state what portion and how much of those lands are subject to overflow by the swelling and overflow of the currents of the Sacramento, American, and Feather rivers; to what extent and how frequently the said lands are overflowed in this manner, and to what extent such overflow, if any, affects these lands for farming purposes. Answer. I am acquainted with all the lands described in the question, and from Sacramento river to the mountains. I am not much acquainted with the lands about Feather river, as I have been there only in the dry season; during the time of the high water of 1849, I frequently went to the mouth of Feather river. From the mouth of the Feather river, down the Sacramento on the east side to the American river, there is a strip immediately adjoining the river that will average, perhaps, three miles wide, that is inundated land; the lands between this strip and the mountains are above inundation. A slight bluff marks the inundated lands, and those not subject to overflow. It is about 6 or 8 feet high, and runs somewhat corresponding with the direction of the river; on this portion, in 1849, it was all a level sheet of water from the bluffs on the east side to a corresponding bluff on the west, making the river in all, with its overflowed banks, about 10 miles across. Many places it was not easily ascertained where the river was, except by trees and landmarks. As it 226 regards the time of the overflow, I have never set down any dates. As near as I can recollect, it took place in January, 1850, and then again in the spring. When I said 1849, I meant the water of 1849 and 1850. My impression is, that the first rise was at its height a fortnight or three weeks; it then stood a little lower for several weeks, so that the bank could be seen in some places. The water then rose again the latter part of March or April; it was not quite so high as the first time, and I am unable to say how long it then remained, as I went to the mines. The land above described overflowed again in the spring of 1852, and then twice in 1853. Last year it was less inundated than formerly, on account of levees and artificial improvements, to some extent. I am inclined to think that a great portion of the bank was not overflowed last year, on account of the levees; in other places, where there are no levees, the water comes in and overflows the rear of this bank; I judge that eight tenths of this land was or would have been overflowed every year, had not levees and improvements prevented. South of the American river as far as Cordell's slough, 8 or 9 miles below the city, the same strip of land is marked by a similar bluff; the high lands in the.rear are above overflow. This strip, with the other, is marked naturally as inundated lands, being covered in the proportion of about % by tulares; it was overflowed in 1849, the same as that I have already The United States vs. Sutter. 171 described, and during every year since it has been partially inundated, and four years out of six it was wholly inundated, except where protected by artificial improvements, and excepting, also, an occasional mound and the sand-hills below the city. The settlers commenced in the summer of 1850 making levees on their ranches, which have partially protected this tract of land from inundation; a great portion of the first levees being small, were swept away. There is now nearly twelve miles of levee, reaching from the American river to Cordell's, besides a cross levee from the Sacramento river to the high lands; these have partially protected all the land between 227 between the American river and Sutter since the year 1850. There is also another cross levee on R street, on the south side of the city of Sacramento, about 8 or 9 feet high. I have been farming ever since 1850, and find it entirely useless to attempt cultivating the ground without these artificial improvements. I have known perhaps from fifty to one hundred instances where men have attempted to farm without levees, along the Sacramento river, from thirty to fifty of which will be included in the lands above described, and I have never known a case in which they have succeeded in cropping profitably for any number of years together, without artificial improvements. JAMES M. SANDFORD. And now, at this hour of 11 o'clock p. m., of this 25th day of March, 1856, this examination is adjourned until 101 o'clock a. m., on March 26th, 1856. SAMUEL CROSS, Notary Public, Sac. Co.. Cal. And now, on this 26th day of March, 1856, at the hour appointed, the parties appear by their attorneys; John H. McKune, esq., appearing as counsel for the appellants, and Presly Dunlap, esq., appearing as counsel for the appellee; and the examination of witnesses is continued as follows, to wit: Jams M. Sandford, the abovenamed witness, having been heretofore duly sworn, deposes and says, and the examination is resumed. Quest. No. 3. State how John A. Sutter's old fort is situated with reference to the bluff or high land described in your previous answer? Answer. The fort is situated on a neck of high land, forming a corner in the rear of the strip of inundated lands on the Sacramento river, and a similar strip on the American river. This high land is a portion of and connected with the bluff heretofore described, and I think has never been inundated since I was here. Quest. No. 4. State if the lands lying between the fort and 228 the Sacramento river, upon which Sacramento city now stands, also the lands lying below Sacramento city, and extending down the Sacramento river to a point immediately below Sutterville four miles, and one hundred and twenty rods below the mouth of the American river, are subject to overflow caused by the swelling of the currents of the American and Sacramento rivers; and if so, to what extent, and how often? 172 The United States vs. Sutter. Answer. They are liable to be overflowed twice a year where there are no levees. In 1849 the whole of these lands were overflowed; it commenced rising in 1849, and did not get to its height until January, 1850. A few mounds and the sand-hills below the city were not overflowed; the mounds were from a quarter to three quarters of an acre each, and we supposed that they had been built by the Indians. I should judge the sand-hills contain fifty acres; their height corresponds with the bluff in the rear. There are similar mounds on the same strip between the American river and Feather river. Cross-examination. Question No. 1. When did you come to the State, where have you since resided, and what has been your business? Answer. I arrived in the State in the latter part of September, 1849; my residence since that time has been on the Sacramento river, and in Sacramento city in 1849; then in the spring of 1850, during the time of the overflow, I was back and forth between this city and Vernon. From May, 1850, until October, I was in the mines, since which time I have resided on the east bank of the Sacramento river, and 6 miles below Sacramento city. In the fall of 1849, and spring of 1850, my business was cutting timber below the mouth of Feather river, boating it to Sacramento city, and building a house on L street, after which I spent my time in the mines until October; since then I have followed the business of farming. Quest. No. 2. Are you well acquainted with the tract of 229 land lying within the following boundaries: commencing at a point on the east bank of the Sacramento river, where the parallel of latitude 390 41' 45" north latitude will intersect said river; running thence along said parallel of latitude to Feather river; thence across said river to a point three leagues distant therefrom; thence in a southerly direction, and parallel with said river, to a point due east of the mouth of Feather river; thence westerly, to a point within one mile of the Sacramento river; thence southerly, and parallel with said Sacramento river, to the American Fork river; thence up said river to the lands claimed to have been granted to the Mexican government to Wm. A. Leidsdorff, at, on, or near the place where A. D. Patterson now resides; thence south, along said line, one league; thence, in a southwesterly direction, to the Sacramento river, to the mouth of a slough, above the house of Cordell; thence up the east bank of the Sacramento river to the place of beginning? Answer. I am acquainted with the tract described, excepting the land along the Sacramento branch, above the mouth of Feather river. Quest. No. 3. What portion of that tract of land is arable in ordinary years? Answer. I think it can nearly all be cultivated by means of artificial improvements. That portion from Feather river up I have never been over, except in the dry season of the year 1849-that is, on the north side of Feather. All the land, from the mouth of Feather river up, seemed to be higher than that below; but I am un The United States vs. Sutter. 173 able to state how much of it is susceptible of cultivation. Of the land below Feather river, that is on the south side, I think the same remarks apply. I know of no land within a mile of Sacramento river, below the mouth of Feather river, with the exception of a few mounds or points, that can be successfully cultivated, one year with another, without artificial improvements. I am not so particularly ac230 quainted along the American river, except near Sacramento city. That portion of the American which I have seen is subject to the same overflow, though the strip is not perhaps a mile wide in some places, while in some it is wider. Quest. No. 4. What years have the lands between the mouth of Feather river and the point on the Sacramento at Cordell's slough been overflowed; if overflowed, what time each year, when, and the continuance of each overflow? Answer. In the winter of 1849 and spring of 1850. I think the overflow commenced in December. and was at its highest pitch in January. It ebbed off some in February; it rose again in March or April. I don't know when the land became dry; when I left the valley it was not dry. I left this tract of country in April or May. In the winter of 1850 and spring of 1851 I have no personal knowledge of any overflow; I did not see any. In summer there was some standing water among the Tules, between the American and Feather rivers; this was about midsummer. In the winter of 1851 and 1852 the flood commenced late in the spring, and abated gradually for about two months; I judge the commencement was not far from the Ist of April. There is never as much as a mile, on an average, ever entirely dry. In the winter of 1852 and 1853 it rose partially early in the winter, was at its highest pitch near the 1st of April, and subsided gradually until near midsummer. In the winter of 1853 and spring of 1854 these lands were partially inundated; but a great portion of them were protected with levees and dams across low places; it did not use that year to go over the banks. In 1854 and 1855 the water was about as high as it was in 1850, which undoubtedly would have inundated all these lands. had they not been protected; I think it commenced rising rapidly in March, and abated gradually from some time in April till October. All the four 231 years' floods are similar, or have been similar. The Tulares lands within the tract were overflowed in October, 1855. Within the tract between the mouth of Feather river and Cordell's slough I should think there might be 1,000 acres overflowed in the month of October. Quest. No. 5. Don't you know, of your own knowledge, and by your knowledge of the country about which you have been testifying, that it was not overflowed in any of the months of August, September, or October, of any year since you have known it, by waters from either of the above rivers, and that during all those months of each year that the waters in the rivers Feather, Sacramento, and American was lower than the general average of the country? Answer. I think in August, of one or two years, the water did not 174 The United States vs. Sutter. get down on the Tulares land, or as low as the Tulares land. The way the question is put I cannot state with certainty. Quest. No. 6. What portion of the lands described are or were covered or inundated during August, September, and October, with with water from the overflow of the rivers herein named? Answer. I should state, as my judgment, that there is about onetenth.' Quest. No. 7. Are not the lands on banks of the Sacramento river, below Feather river, higher than the land is further back? Answer. They are generally higher than the Tulares which lie between the river and the bluff. There are some low places in the bank, of from one-half to three-quarters of a mile. Quest. No. 8. What is the distance from the mouth of Feather due east to the high lands; then 10 miles south of Feather river; then at the mouth of the American river; then opposite the present village of Sutterville; then on K street, in Sacramento city? Answer. At Feather river I should take the distance to be three miles, or less; at 10 miles below I think the distance would be 232 four miles; at the American fork I think it is two or three miles; at K street about two miles; at Sutterville about a half mile. Quest. No. 9. How much of the country between Feather river and the American fork is protected with levee from overflow? Answer. I have no particular personal knowledge on the subject. Quest. No. 10. What is the width or dimensions of the neck of land spoken of in your direct examination on which Sutter's fort stands or stood? Answer. I judge it to be a nook of about one or two acres, and lays in a peculiar form. Quest. No. 11. lIas the country to the east and south of Sutter's fort been overflowed by waters from the rivers; if so, when? Answer. I have seen it overflowed to the east, but not to the south. Quest. No. 12. Have you ever seen any of the land lying south of the slough that passes on the rear of the fort to the American Fork river, near Burns's house, overflowed by water from the river; it so, how much? Answer. I think I have seen a small portion. The principal overflow to which I refer was north of that slough. Quest. No. 13. In your direct examination you say that you knew 30 or 50 farmers who had attempted to cultivate grounds without artificial improvements, along the Sacramento river, who were unsuccessful. Now state who those farmers were, and where their farms were situated. Answer. Many of their names 1 cannot give. There was Scott, about 2 or 3 miles above Cordell's, lost from one to two crops every year, except one; also Messrs. Watsons, adjoining Mr. Scott's, have lost several crops, and am unable to say whether they have been successful in raising crops where they were unprotected by levees; 233 also Mr. Shunk, on the same tract-my impression is that he has lost crops of every year since he has been there; also Mr. The United States vs. Sutter. 175 Schaeler, Mr. Chatfield, Philip Shunk; also 3 Frenchmen, whose names I do not know; also Lamartine; also some 3 or 4 Americans in that vicinity, whose names I don't know, and Frederick or Ferdinand -, Thos. Hall, Michael Hall-these all live between Scott's and Sacramento city; also Mr. Cook, Mr. Vail, Mr. Monger, Mr. Hamilton, or Leonard, who is in his place; also Mr. Green, Fred. Smith, Mr. Krauft, Mr. Lincoln, Mr. Cline, Mr. Shephard, Mr. Cammack, and several others whose names I don't know, but the greater portion of them have also lost crops. Quest. No. 14. Has there not been a crop made every year by those persons; if not, in what year did they fail to make a crop? Answer. As a general thing, when crops are overflowed, any crops raised afterwards are generally been left without gathering. Quest. No. 15. Don't you know that all the land east of the fort, except that north of the slough, is not subject to overflow? Answer. I have not seen it overflow. Quest. No. 16. Do you know the country between the city of Sacramento and A. D. Patterson's, on the American Fork river, and south of said river? Answer. I do. Quest. No. 17. From your general knowledge of the country described in the last question, state whether, in your judgment, it is subject to overflow. Answer. It is doubtful whether it does overflow. Quest. No. 18. In the country between the mouth of Feather river and Cordell's, about which you have been testifying, cannot the ordinary crops of the country be raised in the majority of years? Answer. By leveeing they can be raised every year, if the levees are large enough. 234 Quest. No. 19. If the southern line of the lands granted to Sutter should be established at the mouth of Cordell's slough, will it include the farm upon which you reside and claim? Answer. It will include the farm, but not my claim or right. 1 bought my land from Sutter's Indian wife, with the remaining portion of the tribe, for the sum of $800. These Indians held a document, executed by Judge Hastings, of Sutter, and signed by John A. Sutter, stating that his Indian rancheria was the indisputable property by inheritance of the Waloc tribe of Indians, and requesting in the said document all persons to respect their rights as christianized and civilized Indians. The document was in writing. A man named Smith obtained it by some means, as affiant is informed, and I am unable to produce it. Quest. No. 20. Do you hold that tract of land under or adverse to the claim of Capt. Sutter or his grantees? Answer. Neither; I hold it by title from the Indians, and a possession for fifteen years. Quest. No. 21. Have you in your possession, or do you claim to be the owner of any lot or tract of land within the boundaries described in question No. 2 of cross-examination? Answer. I have no other land than that just described, and never 176 The United States vs. Sutter. have had any other in California. I don't own or claim any lots in Sacramento city.'Quest. No. 22. Have you at any time paid, or proposed to pay, or promised to become liable for, any sum or sums of money whatever to be appropriated directly or indirectly for the purpose of procuring testimony, or employing counsel to defend the claim of the settlers, or to defeat the grant or grants made to Capt. Sutter? Answer. I have never made any contracts, or authorized any liabilities, by which I am involved with any direct interest in this 235 case, but I have paid out some $200 ill order to ascertain the southern boundary of the grant. Direct examination resumed. Quest. No. 1. How long have you, and those under whom you claim, had possession of the lands you now occupy? Answer. I have occupied the land since Dec., 1850, personally; I believe the Indians, from whom I bought, occupied it since 1835. Quest. No. 2. Can grain crops be successfully cultivated on the strip of land described by you as lying between the Sacramento river and the high lands without protection from overflw by artificial levees? Answer. They cannot with any kind of certainty or profit, on account of overflows. Claimant, by his attorney, Presly Dunlap, esq., objects to the whole of the foregoing deposition, on the ground of irrelevancy, incompetency, interest of the witness, &c., on all other grounds except those mentioned in the annexed agreement. JAMES M. SANDFORD. Sworn to and subscribed before me this 26th day of March, 1856. SAMUEL CROSS, Notary Public Sac. Co., Cal. Deposition of R. D. Ferguson. R. D. Ferguson, a witness produced on the part of the appellant, being duly sworn, deposes and says: Quest. No. 1. What is your name, age, residence, and occupation? Answer. My name is Richard D. Ferguson; residence, Sacramento city, and occupation is general trader, ranching. and buying and selling stock. Quest. No. 2. Are you acquainted with John S. Fowler, of Sacramento city? Answer. I am. Quest. No. 3. In what month was the decision of the Sutter[This question is not asked.-S. Cross, notary public.] 236 Quest. No. 3. Did you have a conversation with John S. Fowler, of Sacramento city, subsequent to the decree of the board of United States land commissioners to settle land claims in the State of California, confirming the claim or claims of John A. Sutter The United Sates vs. Sutter. 177 for the confirmation to him of two grants for eleven and twenty-two leagues of land, respectively, embracing within their limits the city of Sacramento, and purporting to have been made to him by certain officers of the Mexican government, relative to his (Fowler' s) interest in the said grants, or either of them? If yea, state the conversation, and when and where this conversation was had. Answer. Yes; Mr. Fowler said in substance that his time had now come; that in 1849 or'50 he had paid to Mr. John A. Sutter ninety thousand dollars, or thereabouts, of as pretty gold dust as ever had been dug in the mountains, for lots in Sacramento city, and land lying between the Sacramento and Feather rivers; and that all, or nearly all, of these lands and lots had been taken possession of by other parties without consideration or value, and through them he had been deprived of their use, and that he had never derived a dollar's benefit for the same; that they had destroyed his timber, cut his hay, and thereby had kept him so poor that he had scarcely been able to feed and clothe his family, He believed he would soon be able to assert his rights before the court, regain possession of his property, and recover for the damages done. In the same conversation he said that his possessions, or the portion of the claim which he purchased, would, if awarded by the courts to him, be worth half a million of dollars; that was about all he said; we talked but a few moments, I congratulated him on his success, and we parted. This conversation was a few days after the confirmation of the Sutter grants by theboard of land commissioners, not more than three or four days afterwards; 237 it was on the northwest corner of K and Sixth streets, in Sacramento city, that this conversation took place. Cross-examination. Quest. No. 1. How long have you resided in this State; when did you arrive here; and what has been your business? Answer. I arrived here in July, 1849; have been here nearly seven years; and my business has been mining, ranching, dealing in stock and real estate. Quest. No. 2. Have you in your possession, or under your control, or do you pretend to own any lots or tracts of land within the limits of the city cC Sacramento, or of the grants or lands claimed under the grants to C>-pt. Sutter, or by his grantees; if so, do you claim the same adverse to or under said Sutter? State what lots or tracts of lands. Answer. I have lots in possession holden under Sutter's title, and lots in the possession of others claimed by them, to which I have Sutter titles, lying in the limits of Sacramento city. I consider this contains a full answer to the question. Quest. No. 3. What number of lots, and what are the numbers and description of lots or tracts of land in Sacramento city, which you hold or claim title to under Capt. Sutter? Answer. Eight lots between S and P, and 10th and 11th streets; eight or ten lots between S and P, or P and U, and 12 i1 and 13th,.[REC. P v.; I. T. 1862.]-12 178 The United States vs. Sutter. or 13th and 14th streets. I think I cannot swear positively, without looking at the records, as to the numbers. Part of lot No. 4, in block between K and L, and 5th and 6th streets, commencing on the southwest corner of K and 6th streets; thence running 40 feet west; thence 80 feet south at right angles; thence at right angles 40 feet east to 6th street; thence at right angles, along the line of 6th street, 80 feet to the place of beginning; also a fraction of lot 4, in the same block, commencing 100 feet south of the southwest corner of K and 6th streets; thence running 60 feet west; thence at right angles 20 feet south; thence at right angles 60 feet east; thence 238 at right angles 20 feet north to the place of beginning. I cannot tell exactly the numbers of the other lots I own, without reference to the records, or the number of them. Quest. No. 4. Have you all these lots in possession; and if not, how many of them have you not in possession? Answer. Those described I have in possession. Quest. No. 5. How many lots do you hold adversely to the claims of Sutter, and those claiming under him? Answer. I cannot answer definitely; I have some. Quest. No. 6. How many lots in the city of Sacramento do you hold adversely to the claims of Sutter, and those holding under him, or claiming under him. to the best of your recollection? Answer. I believe I have 14 blocks enclosed; have the Sutter title to one or two of them-one, I believe; and another party or parties has in possession and claims one of them. There are 8 lots in each block; one or two of them has ten. Quest. No. 7. Have you paid, or become liable to pay, or promised to pay, to any person or persons whatever, any sum or sums of money to be employed or used in employing counsel. or procuring testimony to be used before thle board of land commissioners, or the district court, to procure the defeat of Capt. Sutter's grant? Answer. In this case, now pending in the district court of the United States, between the United States and John A Sutter, in order that full testimony could be obtained, and in order to forward the ends of justice as between the parties, and that all the evidence might be obtained that would place this case fairly before the court, land to secure the means of obtaining said information, I have agreed to contribute an amount for that purpose. I have agreed to contribute for this purpose the sum of $500 00. 239 Claimant objects to thie whole of the foregoing deposition on the grounds of the irrelevancy of the testimony, the incompetency of the witness, and his interest in the result, and on all other legal grounds, except such as are mentioned in the agreement hereto annexed. R. D. FERGUSON. Sworn to and subscribed before me, on this 26th day of March, 1856. SAMUEL CROSS, Notary Public Sac. Co., Cal. The United States vs. Sutter. 179 And the further examination of witnesses is, by consent of parties, adjourned until March 27th, 1856, at 101 of the clock a. m. when it will be again resumed. SAMUEL CROSS, Notary Public Sac. Co., Cal. March 27th, 1856. And now come the parties by their attorneys before named, and resume the examination of witnesses as follows: Deposition of Charles Brockway. Charles Brockway, a witness produced on the part of the appellant, being duly sworn, deposes and says: Quest. No. 1. What is your name, age, residence and occupation? Answer. My name is Charles Brockway; age 45 years; residence near Sacramento city. I am a blacksmith by trade; at present I am working at farming, gardening, &c. Quest. No. 2. Are you acquainted with the general reputation, for truth and veracity, of John S. Fowler, in the neighborhood where he resides? Answer. It is not good; I am. Quest. No. 2. What is his reputation, for truth and veracity, in the neighborhood where he resides? Note.-Here the witness inquired what is meant by the term'neighborhood;" and the counsel for appellant explained that by'neighborhood," he he means the vicinity where he resides, and his general acquantances. Thereupon counsel of appellee objects, that if the witness has not intelligence enough to know the meaning 240 of the word "neighborhood," he is not competent to testily in this case. The witness then answers, not good. Quest. No. 3. From your knowledge of his general reputation for truth and veracity in the neighborhood in which he resides, would you believe him oath? Answer. I would not. Cross-examination. Quest. No. 1. When did you come to this State; where have you resided since, and what has been your business? Answer. I came to this State in 1849; I have resided since most of the time on the corner of 11th and K streets; I sold goods there for twvo or three years; I made that my home until within the last 9 or 12 months. One year I was gone to the States, and one year I have been working the garden; I have been working the garden for about 9 months. Quest. No. 2. On what do you found your opinion of Fowler's reputation for truth and veracity? Answer. Well, I have heard him publicly denounced for a "perj'd" man, and a "perj'd" villain. Quest. No. 3. By whom have you heard him denounced; when, and where? 180 The United States vs. Sutter. Answer. I heard him denounced by Mr. Colby at the Noyse House, on the public square; I cannot now state positively what day I heard this; that is all. Que-t. No. 4. Is Mr. Colby, who is referred to in your answer, not a settler on the lands claimed by Sutter and his grantees? Answer. Not to my knowledge, for I don't know where he lives. Quest. No. 5. From general report and from your knowledge of Colby, do you not know that he claims lands adversely to the claims of Sutter? Answer. I have heard that he did; but I never heard Mr. Colby say so. Quest. No. 6. Do you form your opinion of Mr. Fowler's 241 reputation for truth and veracity on what you heard Mr. Colby state alone? Answer. No, sir. Quest. No. 7. Then upon what do you found it? Answer. That I heard him swear in court to things that I did not believe; I heard Mr. George Foster say there that he swore to a lie, and he knowed it. Quest. No. 8. In what court, in what case, and when did he testify; who were the parties to the suit, and what was the subject in controversy? Answer. The court was before Monson. It was Monson's court. Tile parties were Sanders, plaintiff, and Fox, Charley Mack, and Foster were the defendants. The suit was for the possession of a piete of land. I was not a party defendant in that suit. Quest. No. 9. Was the Mr. Foster, whom you name as aparty defendant in this suit, the same who you heard state that Mr. Fowler had sworn falsely on that trial? Answer. lie is the same. Quest. No. 10. Have you heard anybody else; if so, say who, when, andl where? Answer. I have heard such remarks, but cannot now recollect persons or places, because I paid so little attention to it. Quest. No. 11. Have you stated all the information you have on the subject? Answer. I do not recollect any more. Quest. No. 12. Was not tle suit of Sanders brought against Fox and others, of which you have just spoken, brought to recover the possession of lands held by the defendants adverse to the rights of the plaintiff in that suit, who you understood to hold the same under Sutter? Answer. To the best of my knowledge it was. Quest. No. 13. Have you signed the petition, representation, or any other document to be presented in any of the courts, or to 242 the Commissioner of the Land Office, or to any other officer or tribunal, for the purpose of defeating the grants made to John A. Sutter, or for the purpose of discrediting the testimony of John S. Fowler; if so, what is the character of that paper; have you it in your possession or under your control? lhe United States vs. Sutter. 181 Answer. I signed a petition to Congress for the benefit of settlers in California; I also signed a petition to the Attorney General to appeal the Sutter case; I think that is all. Quest. No. 14. Do you own, claim, or pretend to claim, or have you in possession, any lots or tracts of land within the limits of those lands claimed by Capt. Sutter or his grantees, as being within the limits of the lands claimed as granted to him and his son by the Mexican government; if so, how much, and where are the same situated? Answer. I have three lots in Sacramento city; I am in possession of one hundred and sixty acres outside of the city. Quest. No. 15. Do you hold those lands, or any of them, under deed or conveyance from Capt. Sutter or his grantees? Answer. I bought some of those from his agent in 1849, but since then there have been two or three different claimants to them. Quest. No. 16. Did you ever pay him or his agent the price and receive the deed; if so, what are the lots or lands? Answer. I paid Hardin Bigelow $500 00 in 1849, for fraction 4, in lot 4, corner of 11th and K, and got a deed for it. That is all. I understood, in 1849, by his representations to me, that Hardin Bigelow was Sutter's agent. The deed was acknowledged before Schoolcraft, the receiver. Quest. No. 17. Do you hold the balance of the lands and lots spoken of by you adversely to Capt. Sutter; if so, by what title or claim? Answer. The title of the government; I hold it under government. I cannot answer that I hold adversely to Sutter. 243 Quest. No. 18. When did you get it from the government, and how have you ever paid the government any sum therefor, and what sum, and what government? Answer. I settled on it (the city lots) in 1849; fenced and enclosed and occupied for my own use and benefit the 160 acres I settled on in the spring of 1851, and claim that under the pre-emption act of California; I have not paid anything to the government; they are not in the market, to my knowledge. Quest. No. 19. By whom were you subpoenaed to attend here, or if at all? Answer. I was not subpoenaed to attend here; I was requested to come by Dr. Pratt, Mr. Fox, and two or three others, and they wanted to know if it would be necessary to subpoena; I said not. Quest. No. 20. How far do you reside from Mr. Fox; do you not know his Christain name, and how long have you known him? Answer. I reside about X of a mile from him now; I do not know his Christian name; I have known him by sight for three years. Quest. No. 21. Is the Mr, Fox alluded to by you here the same Mr. Fox who testified in this case last week before G. Pen Johnston, commissioner? Answer. Not to my knowledge, further than what I saw through the paper and what he told me. He told me that he had been up before the corl t or magistrate. Quest. No. 22. Did he tell you what he had testified to in that exaination? 182 The United States vs. Sutter. Answer. I cannot say positively, but recollect this much, that he said he would not believe John S. Fowler. Quest. No. 23. Did not the parties who requested you to come here to-day, state to you that they wished you to testify in regard to Fowler's character, and that you should state that you would not believe him under oath? 244 Answer. They did state to me that they wished me to testify as to Fowler's character; they did not request me to state that I would not believe him under oath. There might have been such a conversation, but I have no recollection of any. Quest. No. 24. Have you paid, or become liable to pay, or promised to pay, to any person or persons whatever, any sum or sums of money, to be employed or used in the employment of counsel or procuring testimony to be used before the board of United States land commissioners, or the district or other court or tribunal, to procure the defeat of Capt. Sutter's claim? Answer. I have not, Quest. No. 25. Do you belong to any association or body of men formed for the purpose of defeating or delaying the claim of Captain Sutter? Answer. In 1850 I gave either $50 or $75 towards establishing a press here that would advocate the cause of the settlers. About three years ago I, with others, gave a man some money to get a man to go to San Francisco to see what evidence could be procured. Direct examination resumed. Quest. No. 1. What do you mean by the term "perj'd," as used by you in response to question No. 2 of the cross-examination? Answer. I understand the meaning to be, where a man goes into court and testifies intentionally to what he knows is not so. Quest. No. 2. What did Mr. Foster say Fowler falsely concerning in the conversation you had with him, mentioned in response to question No. 7 of the cross-examination? Answer. Mr. Foster did not tell me what the conversation was; that he swore to a lie. I understood Mr. Foster to say that he had had a conversation with Mr. Fowler, and that he (Fowler) had gone there and swore to something else; that he had stated things in his evidence as having passed in conversation between them which 245 never occurred, and what he testified was false. Cross-examination resumed. Quest. No. 1. When did you hear Fowler swear falsely, if ever, and about what did he testify? Answer. HIe swore in Monson's court to things that I did not believe; and others told me that he swore falsely. Quest. No. 2. Did you ever hear him swear falsely to your own knowledge? Answer. To the best of my knowledge, he did. The United States vs. Sutter. 183 Quest. No. 3. What did he swear; when, where, and how do you know that he swore falsely? Answer. He swore that these wild lands below Sacramento city was worth $5 00 per month, making $60 00 per year per acre rent. This was in the district court of the sixth judicial district, in the case of Sanders against Fox et at. I know by experience in cultivating lands adjoining for the last five years. Quest. No. 4. Did he swear that all the wild lands below the city were worth that? Answer. He swore that this certain tract of land was worth that, and the land that I cultivated was land of the same quality. Quest. No. 5. Describe the tract of land about which he testified, and its quality, and the number of acres, and where situated. Answer. The land lies about X of a mile below "Y" street of Sacramento city, and south about 25th street. The number of acres in dispute on that trial was, I think, about fifty. Quest. No. 6. State, on your own knowledge, whether Fowler did not think the land was worth the amount he testified to? Answer. I can't answer this question. Quest. No. 7. Do you know that Foster told you the truth when he said that Fowler swore falsely; if so, how do you know it? 246 Answer. Mr. Foster remarked to me that he (Fowler) had sworn falsely, in a conversation they had had together. I do not know that it was the truth. Counsel for claimant objects to the whole of the foregoing deposition on the grounds of irrelevancy, the incompetency of the witness, and of his interest in the result, and on all other legal,except such as are mentioned in the agreement hereto annexed. C. BROCKWAY. Sworn to and subscribed before me, on this 27th day of March, 1856. SAMUEL CROSS, Notary Public Sac. Co., Cal. Deposition of George R. Nisbet. George R. Nisbet, a witness produced on the part of the appellant, being duly sworn, deposes and says: Quest. No. 1. What is your name, age, residence, and occupation? Answer. My name is George R. Nisbet; my residence about three miles below this city on the upper Stockton road; I am farming. Quest. No. 2. Are you acquainted with John S. Fowler? Answer. I know him when I see him; I have had one interview, but not much personal acquaintance with him. Quest. No. 3. State whether you have ever heard John S. Fowler, in conversation with yourself or any other person, claim to be the owner of any lands included within the boundaries of the lands claimed as within the grants of John A. Sutter under title from John A. Sutter; if yea, state when and where this conversation occurred, and what he (Fowler) said? 184 The United States vs. Sutter. Answer. I heard him say that he claimed under the Sutter title; this was about a year ago, at his residence on what is generally called "the Ridge" or "Poverty Hill." I suppose it is in this 247 city. Myself and a friend went to Fowler to buy a tract of land within the lines described in Sutter's petition; he refused to sell that particular farm, as he had selected that for his home, but he offered to sell any other in that neighborhood which he might desire. He mentioned the price the land cost him, but I don't now recollect the sum; also named somewhat about the boundaries-said that he claimed beyond the mounds, and in that case he would include my ranch. I then mentioned that I did not believe I was on the Sutter claim at all. He said I was, but he would compromise, or there would be no trouble in compromising by those who had gone on in good faith. It was my friend who wanted to purchase. Fowler said that he bought this land from Sutter and had paid a large price for it. I cannot say positively that he said he bought directly from Sutter, or from those holding under Sutter. Cross-examination. Quest. No. 1. How much land does Fowler hold under the Sutter claim, or how much since 1852? Answer. I do not know; I don't know that he holds any: he said he did. Counsel for appellee objects to this deposition, on the grounds of irrelevancy. G. R. NISBET.. Sworn to and subscribed before me, on this 27th of March, 1856. SAMUEL CROSS, Notary Public Sac. Co., Cal. And now the further examination of witnesses is adjourned until March 28th, 1856, at 10 o'clock a. m., by consent of parties. SAMUEL CROSS, Notary Public Sac. Co., Cal. Friday morning, March 28th, 1856. Now come the parties by their attorneys heretofore named, and the examination of witnesses is thereupon resumed as follows: Deposition of Thos. J. Hall. Thomas J. Hall, a witness produced on the part of the appellant, being duly sworn, deposes and says: 248 Quest. No. 1. What is your name, age, residence, and occupation? Answer. My name is Thomas J. Hall; age 37 years; residence Sacramento county, most of the time; my occupation is farming and mining; I was originally a physician. The United States vs. Sutter. 185 Quest. No. 2. Are you acquainted with the topography of the country lying on and near the Sacramento river, below the mouth of Feather river, to ten miles south of Sacramento city; if yea, how long have you been acquainted with the land? Answer. I am only acquainted with the land below the mouth of the American river; I have known it since 1849; have been living upon it the greater part of the time, below the American river; I am well acquainted with the topography of the land for ten miles below the American river. Quest, No. 3. What is the altitude of the bluffs bordering the land on the east of the Sacramento river, liable to overflow? Answer. I cannot state positively, but I would suppose that for the whole length they would average some fifteen or twenty feet. Quest. No. 4. About how far are those bluffs from the river, on an average, and state what part of the land is liable to overflow, from the impulse, currents, and swellings of the river? Answer. Probably the average distance would be about two miles, as near as I could estimate; with the exception of a high knoll here and there, it is all overflowed. Quest. No. 5. What would be the average depth of the water during ordinary seasons of overflow, on the land liable to overflow, or inundation; how long does the water usually remain; how long after does the overflow happen, and what improvements are necessary to make the land available? State your means of knowledge. Answer. I think about five feet; in the winter of 1849, and spring of 1850, there were two different times when the water over249 flowed the banks; at that time the water remained in all about five weeks, during both overflows, as near as I can recollect; I cannot tell exactly how long the water remains during overflows, but, to the best of my recollection, it is about two weeks each time that it runs over the banks of the river. The overflows continue about two months, and on portions of the land it remains all the time. Before the levees were built a greater amount of land remained under water during the whole of the season than at present. A levee two feet high along the bank of the river would keep the water out, excepting where there are sloughs, which would require a greater levee. I speak generally. The river bank is some fifteen or twenty feet higher than the land behind it. I am intimately acquainted with the facts I state, from personal knowledge of the same. Quest. No. 6. What extent of levee has already been constructed south of Sacramento city? Answer. I suppose at least nine miles. In this there is not a conitinued levee; some people have part of their places leveed, others the whole. Quest. No. 7. What is the altitude of Sacramento city, as compared with the land, or most of the land, so overflowed? Answer. I think it is higher. It will average at least seven feet higher than the average of the lands below. It is not any higher than the banks of the river, except at the plaza. In fact, it is not as high, because this was overflowed by back-water, and the banks were not. 186 The United States vs. Sutter. Quest. No. 8. State what artificial improvements have been made in and around Sacramento city for the purpose of securing the lands within the city from overflow, and making it available for business purposes; also state the costs of those improvements, if you know what the costs have been? Answer. The land has been leveed, and the streets, or a portion of them, been filled. I don't know what the cost has been. The levee runs round three fronts of the city embracing the same, and 250 it extends back to the high lands. Cross-examination. Quest. No. 1. When did you come to the State, where have you resided since, and what has been your business? Answer. I came in 1849. Part of the time in Sacramento co., part in the mountains, and one year in the States. I spent a year in the States, about six months in all at the mines, and the balance of the time in this county. I reside now in a straight line 6 miles from the American river, on the banks of the Sacramento river. I have resided there (with the exception of the 18 months) since Sept., 1849. It is a southerly direction from Sac. city. Quest. No. 2. What portion of country did you speak of in your answer to question No. 2? Answer. That lying below the American river and back to the high lands, down ten miles. In a straight line it is below Cordell's slough, about two miles, I think. Quest. No. 3. What supposed number of acres have annually been, or would have been, overflowed in absence of a levee lying north of Cordell's slough and south of the American river? Answer. Counting Cordell's slough 8 miles, and the average width two miles, then 640 have to be multiplied by 16, to give the amount of acres; then subtracting probably 75 acres from that for knolls, all the balance would be under water. Quest. No. 4. Has the tract above described overflowed every season since you have known it; if so, when and what years? Answer. By far the greater amount of land alluded to above would hIave been under water every year, provided there had been no levee. In the winter of 1849 and spring of 1850, there was what is called a general overflow. In the winter of 1850, and spring of 1851, the inundation was partial. The next year it was complete. In 2F1 the year following I was in the States. Last season there was a general overflow. It has not been overflowed in 1856 yet. Quest. No. 5. At what point of the tract described is the land seven feet below the banks of the river, and how much of the land? Answer. I suppose that half the area of Sacramento city is five feet below the river banks; a large portion of that land below the city is twenty-five feet; I suppose, at a rough calculation, two thousand acres; outside the lakes on this tract I have seen it twelve or fifteen feet deep. Quest. No. 6. Is not the district of which you speak as being The United States vs. Sutter. 187 twenty-five feet below the banks of the river a lake that never goes dry, or from which the water never recedes? Answer. The particular portion alluded to lies below the town of Sutterville. It is the lake. The area of that lake at ordinary stage of water cannot be estimated exactly, as it depends on the stage of water. On the 1st day of May, of each year, there are, I suppose, about 09 of all the country would be included within that lake. Quest. No. 7. What is the width of the overflowed lands on a line running east, parallel with the American river from K street, "R" street, and at the town of Sutterville, opposite the large brick hotel? Answer. I cannot state positively about the distance at the Amercan river. At "K" street it is about 2 miles; at "R" street about 2 miles; at Sutterville, it is 1 or X of a mile. Quest. No. 8. What portion, and how much of this land described, remains overflowed by the swelling of the currents and impulse of the river all the time? Answer. Without leveeing, I suppose about a fifth or a sixth. Quest. No. 9. Does any of the land within the tract of of 252 country you have been describing remain overflowed except lakes and lagunas? Answer. No, sir. Quest. No. 10. What portion of the land is covered by lakes or lagunas? Answer. I suppose probably about one-fourth. Quest. No. 11. Can a crop in ordinary years be made without a levee on the lands you have been describing? Answer. No, sir. Quest. No. 12. Have you not seen crops growing on it every year, except 1849, since you have known it? Answer. Not without leveeing; I have seen crops tried every year. Quest. No. 13. To your own knowledge, have not crops been raised every year? Answer. Not without leveeing. Quest. No. 14. Is the whole of the country you have been describing leveed? Answer. Most of it. Quest. No. 15. What portion? Describe it minutely. Answer. From "I" street to McGregor's ferry has been leveed by the city. This is on the bank of Sacramento river. Then Hamilton's ranch, commencing about 40 rods below the city levee, is leveed for about a half a mile; then Vail's old ranch is partly leveed; Munger's ranch is all leveed. Each claims a half a mile, more or less. Hooker and Ferris' ranch is leveed; Sandford's ranch also; Eureka ranch also; Ross's ranch partly; Watson's, partly; Scott's, the whole. There are some 4 or 5 ranches below that, which all have more or less levee. That includes the whole country. Quest. No. 15. If you have passed over the whole country between the mouth of American river and Sutterville, or McGregor's 253 ferry, have you not seen vegetables growing e0ach year, between the levee and the Sacramento river? 188 The Urited States vs. Sutter. Answer. I have not seen vegetables growing there; I have passed over the country at various seasons of the year. Quest. No. 16. Do you own, or claim to own, or have you in possession, any lands within the limits of the boundaries of lands claimed by Capt. Sutter and his grantees? Answer. Having been with Capt. Sutter's surveyor, Viorget, when he made the survey for him, or when he defined the southern boundary, and knowing that to be about four and a half miles from the mouth of the American river, and this survey being made in 1855, I have every lawful reason to believe that I am outside of Capt. Sutter's grant; his grantees have told me that I was not within the boundaries of the grant. Quest. No. 17. What grantee told you so? It was either Gen. A. M. Winn or Mr. Gillespie. Quest. No. 18. If Sutter's southern line were established to run northeasterly from the mouth of the Cordell slough, would it not inelude the land in which you are in possession? Answer. I do not own, or claim to own, the land on which I live. Quest. No. 19. Who does own it? Answer. I sold it to G. M. Hall; he is my brother; 1 sold to him previous to my visit to the States, about 21 years ago. Quest. No. 20. How much did your brother pay you for that land? Answer. He paid me twenty-three hundred dollars. Quest. No. 21. Have you in your possession, or under your control, lands lying north of Cordell's slough, on the Sacramento river? Answer. I have none that I claim as my own. 254 Quest. No. 22. How do you know that Viorget was Gen. Sutter' s surveyor? Answer. He told me so himself-that is, Viorget told me so. Quest. No. 23. Do you know, of your own personal knowledge, of Capt. Sutter's ever employing Viorget to do any surveying whatever; if so, when? Answer. All I know about it is what Viorget told me. Quest. No. 24. How much money was raised by the settlers, if any, and paid to Viorget, and before spoken of by you, for making the survey and running the lines in the summer or fall of 1855? Answer. The settlers on both sides of the survey, anxious to know the southern boundary where Capt. Sutter's grant really did exist, raised $300 00, I think, and paid him for making this survey; I paid part of it for my brother; individually I did not. Quest. No. 25. What did Viorget tell you in relation to his being Capt. Sutter's surveyor? Answer. He said he was Capt. Sutter's surveyor at a certain time, and run this line; that they waded from the boat to the river bank near where this tree stands, and run from there, making that the point of beginning, running a little south of east, at least not due east, to a cluster of timbers situated back on the high lands; that he remembered the slough distinctly from its peculiar curve; and that the tree on the bank of the river from which they started was not an oak, but a sycamore. The United States vs. Sutter. 189 Quest. No. 26. Did Capt. Sutter ever tell you that ViGrget was his surveyor? Answer. He did not. Quest. No. 27. Did Viorget state in your hearing that he run out in 1841, or at any other time, the lines of the grant to Sutter? Answer. He did. 255 Quest. No. 28. Are the lands within the limits of Sacramento city and the adjacent country included within the boundaries described to you by Vioget as the boundaries of Capt. Sutter's grant, as surveyed by him? Answer. HIe embraced the two-league grant south of the American river, having for its boundaries such as le then described, to which he made an affidavit, containing the description of this southern boundary. [Attorney for appellee objects to the foregoing deposition on the ground of irrelevancy and all other legal objections, except such as are mentioned in the agreement hereto annexed.] THOS. J. HALL. Sworn to and subscribed before me on this 2Sth day of March, 1856. SAMUEL CROSS. Notary Public, Sac. Co., Cal. Deposition of Geo. W. Foster. George WT. Foster, a witness produced on the part of the appellant, being duly sworn, on oath deposes and says: Quest. No. 1. What is your name, age, residence, and occupation? Answer. Mly name is George W. Foster; residence in the town of Granite; I am merlchandising. Quest. No. 2. Are you acquainted with the general reputation for truth and veracity of John S. Fowler, of Sacramento city, in the neighborhood where he resides'? Answer. I amI acquainted with him, and have been since 1849. I am acquainted witil his general reputation for truth and veracity in the neighborhood where he resides. Quest. No. 3. Wh.at is that reputation? Answer. It is bad. Quest. No. 4. From his general reputation for truth and veracity, would you believe hiti on oath? Answer. I would not. Cross-examination. 256 Quest. No. 1. hen did you come to this State; where have you resided since; and what has been your business? Answer. I arrived, here in 1849. I have resided during the larger portion of the tinte in Sacramento city and vicinity. I merchandised for three years; fulriod one year; and merchandised again last year. Quest. No. 2. On what do you form your opinion of Fowler's reputation for truth Ai -'i acity? 190 The United States vs. Sutter. Answer. From personal transactions and public opi'nion. Quest. No. 3. What were those transactions alluded to in your lastanswer? Answer, In 1849 I went to the bay in company with him and others. on board a sailing vessel; we were 12 or 14 days, I think, in getting" down to the bay; I returned to this city again. Mr. Fowler commenced building the "City Hotel," and I sold him about $300 00 worth of hard-wood tables; upon settling for them there were some hard words passed between us. but he paid me for them. I also had, at that time, other goods which I valued at $125 00, which I offered to sell him; he told me that he did not wish to buy, but if I would leave them he would try to sell them for me, and charge me no storage. I went to the mines; was gone nearly three months; and returned and called to see him about the goods I had left with him, and he said he had no knowledge, and knew nothing about them. I endeavored to remind him by asking who he got the tables of in the room, and then he did not acknowledge knowing me. I believe he lied in denying that lhe knew me or my goods. I saw Mr. Fowler, at different times, after that; I saw him at Sutterville; I prevented him from putting up a house down there. About a year and a half ago I heard him testify in an action in the district court in and for the county of Sacramento, wherein Sanders was plaintiff, and Fox, Charly Mack, and Geo. W. Foster, were defendants. The trial was had some two or three months ago. The suit was about fifty acres of land. He stated to the 257 court, and pointed to me, that "I do not know tle gentleman's name." That "'onl his demanding possession of the land in controversy, (1) called him a robber, a thief, and a pirate," which was false. I called him a broken down speculator; that is, he was denying in court that he knew me by name, when he had sworn a few minutes before that he went to my ranch to demand possession from me; that he went down as a witness with another gentlemnan to denanrd possession of mle. He also testified that the value of the land was fifty dollars per acre; and before lie left the stand he swore that the rent of the same ground was worth five dollars per acre per month. That is all. Quest. No. 4. Were you not a party defendant to that suit? Answer. I was. Quest. No. 5. Did the plaintiff recover? Answer. HIe did not recover fromn me. There was a verdict rendered in favor of the plaintiff. Quest. No. 6. Was that suit, the same above spoken of, instituted by the plaintiff to recover the possession of a certain tract of land held by the defendants adversely to the plaintiff, who claimed title under Capt. Sutter? Answer. It was the same suit; it was the same land; it was instituted by plaintiff to recover possession of it. Quest. No.. 7. ave you stated all the facts and circunstances on which you found your belief of Fowler's general character for truth and veracity? Answer. All that I recollect, except public opinion. The United States vs. Sutter. 191 Quest. No. 8. How do you know that his character is bad by public opinion, and how do you know that opinion? Answer. By common report. Quest. No. 9. How many men have you ever heard say, 258 a- I and who are they, that they would not believe him on oath? Ans. I don't recollect any particular number; I have heard different men. There are C. S. Hoyt, Mr. Brockway, Mr. Lawless, Mr. Lockwood; these are all I can recollect, although I have heard others make the same remark. I heard Patrick King say so. Quest. No. 10. Where does each one of these named live? Answer. Mr. Hoyt lives near the Sand Hills, at the burying. ground, in Sacramento city; Mr. Brockway lives about X of a mile south of Sacramento city; Mr. Lawless lives at Dry creek now; he used to live on the ranch adjoining me; Mr. Lockwood lives in Sutterville; I don't know where Mr. King lives; he used to live at Southwick's dairy. Quest. No. 11. Would the opinion of these form, in your opinion, public opinion or common report. Answer. These, with others stated in public, would. I heard him denounced in public by public speakers. Quest. No. 12. What public speakers denounced him? Answerx I heard it at two different times on the public square in this city; I did not know them; I think one was a Brighton man, and I think his name was Colby; I am not positive. Quest. No. 13. Were or are not all the persons above enumerated as known to belong to the party called settlers, and have you not heard them so announce themselves? Answer. I think they are all settlers. Quest. No. 14. Who requested you to come here to testify? Answer. I do not know his name; he is a man about five feet 10 or 11 inches high, and is agent for Wells, Fargo & Co.; he 259 called on you at Granite city; he delivered me a letter from the U. S. attorney, or one authorized by him, requesting me to come. The letter was signed by one McCullough. Quest. No. 15. Did you request Mr. Brockway to come hefore Mr. Cross to testify in this case? Answer. I did not. Quest. No. 16. Did Fowler ever recognize you after 1849; if so, when and where? Answer. He has passed the time of day with me, and called me by name at different times, since 1840. Quest. No. 17. Dou swear positively that Fowler did know you at the time he testified on the trial in the case of Sanders vs. Fox et al.? Answer. Ite stated to the court that he knew me, and had come down as a witness to the demand for possession; I swear that I believe he knew me. Quest. No. 18. Do you own, or claim to have, or in possession of. or claim to have an interest in any lots or tracts of land within the limits of the lands claimed by Capt. Sutter or his grantees; if so, where, and how much? 192 T17e United States vs. Sutter. Answer. I answer, no. Quest. No. 19. Where have you any? Answer. I have 320 jointly with another at the Joihnon Cut-off, 15 miles above Placerville; I also have mining clalls at Granite city; the Green Valley ranch, on the Hangtown road, I suppose belongs to me; I have none, and claim none, in Sacramento city or its vicinity. Quest. No. 20. Do you now, or have you here;-iore,, belonged to any body of men or association formed for the purpose of defeating any Mexican grant or grants? Answer. I do not; if I ever did belong to any, I have forgotten it; I think I never did. 260 Quest. No. 21. Have you paid, or become l:ible to pay, or promised to pay, to any person or persons whtLt-ver, any sum or sums of money to be employed or used in the emploEiyment of counsel, or procuring testimony to be used before the board of United States land commissioners, or the district or other courts or tribunal, to procure the defeat of the Sutter claim? Answer. I believe not a dollar in any shape whatever. Quest. No. 22. Are you positive you have not? Answer. I am positive I have paid nothing; I have not promised any on the Sutter title. Quest. No. 23. What claim have you promised for? Answer. It is a miner's claim at Granite city. Quest. No. 24. Have you relinquished all your right to the land of which you spoke, that the suit was about? Answer. 1 have. Quest. No. 25. Have you ever owned any lands or claimed any lands in or about Sacramento city? Answer. I have occupied lands in the city, and also below the city; I claimed the right of occupying them; they were wild lands; those in the city I disposed of in 1853; that south of the city I disposed of about a month ago; I did not dispose of any for the purpose of becoming a witness in this case; I did not know till yesterday that I was to be a witness in the case. [The counsel for the appellee objects to the foregoing deposition on the grounds of irrelevancy and incompetency of the testimony, beciuse it was evidently given under preudice of the witness, and on all oth r legal grounds not mentioned in the annexed agreement.] GEORGE W. FOSTER. Sworn to and subscribed before me on this 28th day of March, 1856. SAM'L CROSS, Notary Public, Sac, Co., Cal. 261 And now the further examination of witnesses is adjourned until March 29th, 1856, at 91 o'clock a. m. SAMUEL CROSS, Notary Public, Sac; Co., Cal. The United States vs. Sutter. 193 Saturday morning, March 29th, 1856.-Now came the parties by their attorneys before named, and the examination of witnesses on the part of the appellants is resumed as follows. Deposition of Sam' I Norris. Samuel Norris, a witness produced and duly sworn on behalf of appellants, deposes and says: Quest. No. 1. Did you ever have a conversation with John A. Sutter in reference to an application made by him to the government of California for a grant of land to his son? If yea, when and where did that conversation occur, and what did Capt. Sutter inform you concerning that matter? Ans. I don't remember when and where the conversations took place. He told me that he had asked for the Russian settlements on the coast for his son. I talked with him several times about it. Capt. Sutter was in possession of the premises at the time-that is, he had an agent there-these settlements, Fort Ross and Bodega; that is, they were all one settlement, but the buildings were some miles apart; they are seven leagues apart. The first conversation I had with Sutter about it was in 1844. I also talked with him again in 1847 about it, and he always claimed it for his, or in the name of his son-that is, those premises. Quest. No. 2. Did you ever hear, prior to the year 1847, of a grant made by the Mexican government to John A. Sutter and his son for twenty-two leagues of land described as the surplus of land within the limits as claimed by him of his original grant of eleven leagues? If yea, state what your information was concerning it. Ans. I did not; I never heard of afty other, but I had an impression that he had the eleven league grant. I don't know how I got this impression. 262 Cross-examination. Ques. No. 1. Did you ever know whether Sutter claimed under one or more grants? Ans. I did not. Ques. No. 2. Did you ever hear of any one dispute his title to the lands in which he was in possession of, or claimed title to, before the treaty of peace of Guadaloupe Hidalgo, between the United States government and the republic of Mexico? Ans. I don't remember whether I have or not; I don't recollect. Ques. No. 3. At and before that period, according to the best of your recollection and belief, was not his title recognised by the inhabitants of the country as a valid one? Ans. I don't know; I never knew he had any title. People generally said he claimed it. Ques. 4. Did you ever have any conversation with Capt. Sutter in relation to his grant for the sobrante to himself and son? Ans. I don't recollect. [REC. CCLVIII, D T. 1862.] —13 194 The United States vs. Sutter. Ques. 5. Do you know John S. Fowler, and how long have you known him? Ans. I have known him since 1847. Ques. 6. Are you acquainted with his general character for truth and veracity? Ans. I am. Ques. 7. From your knowledge of him personally, and from general character, would you believe him under oath? Ans. I would; I never heard his veracity doubted until the question came up in this Sutter case. SAM'L NORRIS. Subscribed and sworn to before me this 29th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co. Deposition of John Prentice. John Prentice, a witness produced on the part of the appellant, being duly sworn, on oath deposes and says: Ques. No. 1. What is your name, age, residence, and occupation? Ans. My name is John Prentice; residence in Sacramento city; my occupation is surveyor; my age is 55 years. 263 Ques. No. 2. How long have you been acquainted with the land bordering on the Sacramento river, below the Feather river? Ans. With some parts of it ever since August, 1849. The land was acquainted with in 1849 was Sacramento city. In 1850 I becam acquainted with the lands abode and below the city-for some 6 10 miles above and below-and as far east as the high lands. Ques. No. 3. Describe the topography of the country, and give the particular description of the overflowed land, and land liable to overflow from the swellings and currents of the river. Ans. The bank of the river is higher than the land back of it; i slopes off from the bank, from two to four feet to the Tulares. The bottom land extends eastwardly, from a quarter of a mile to a mile and a half, and, in some, two miles from the river; this land within these limits is all liable to be overflowed in time of flood; in the winter and spring in 1849, and in the winter of 1852 and 1853, I have known floods here-probably 1849 should be strucked off, as the flood there intended occurred in January, 1850. A part of these lands are tule lands and part are grass lands. Cross&examination. Ques. No. 1. Cannot a crop in ordinary years be made upon the lands about which you have been testifying? Ans. It can on a part of them, and on a part it cannot; it would be the smallest portion it would not, Ques. No. 2. Is not that portion on which a crop cannot be made in ordinary years covered by sloughs, lakes, and lagunas? The United States vs. Sutter. 195 Ans. I think the greater part of it is. Ques. 3. What has been the average continuance of each overflow since you have known the country, taking one year with another? Ans. From two to three months. JOHN PRENTICE. Sworn to and subscribed before me on this 29th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. 264 Deposition of Chas. W. Hoyt. Charles W. Hoyt, a witness produced on the part of the appellant, being duly sworn, on oath deposes and says: Ques. No. 1. What is your name, age, residence, and occupation? Ans. My name is Charles W. Hoyt; residence, Sacramento county; occupation, drayman and gardener. Ques. No. 2. Are you acquainted with the general reputation of John S. Fowler for truth and veracity in the neighborhood where he resides? Ans. I know nothing that is very definite in relation to his character; I am not well acquainted with him. Ques. No. 3. To what extent are you acquainted with his general character? Ans. No farther than the remarks of others in relation to him. Ques. No. 4. What is that reputation, as you learn it from others? Note.-Counsel for the appellee here objects to these questions Nos. 3 and 4, on the grounds of their.being leading. And the witness answers question No. 4 as follows: It has not been favorable as to his character and veracity-I mean to say, that it has not been favorable as to veracity. I have occasionally heard it remarked by persons that they would not believe him under oath. Ques. No. 5. How long have you been acquainted with John S. Fowler, and through what space of time have you heard his character spoken of? Ans. I have been somewhat acquainted with him for about a year; it has been mostly within that space of time which I have heard his character spoken of. Cross-examination. Ques. No. 1. How long have you lived in this State; where have you resided, and what has been your business? Ans. Since 1849 I have lived in this State most of the time-in this city and vicinity since 1850. I have been principally in keeping dairy. Ques. No. 2. From what source of information and upon what do you do form your knowledge of Fowler's general character for truth and veracity? 196 The United States vs Sutter. Ans. I have heard him spoken of by several, viz: Warren, who lives on the levee below Sibby's; Cabels, who is now dead; G. 265 W. Foster, who lives at Granite city; Charles Brockway, who lives immediately below the city, and others. I am not positive as to other names. Ques. No. 3. Have you answered fully as to the last question? Ans. I know of no more satisfactory information than I have given as to his character. Ques. No. 4. Do you form your opinion of a man's general character for truth and veracity upon what you have heard four men say? Ans. I do, when I have no reason to believe otherwise. Ques. 5. Did you ever hear his character impeached at any time or place? Ans. I have not. Ques. No. 6. Do you own, or claim to own, or have you in possession, any lots or tracts of land lying within the limits of the lands claimed by Sutter or his grantees? Ans. I hold possession of some land just below the city of Sacramento. Ques. No. 7. Have you not settled upon a tract of land including the graveyard belonging to the city of Sacramento? Ans. I never have settled on any such land, nor occupy or improved any such. Ques. No. 8. The land on which you reside, how and by what right do you hold it? Ains. I settled upon it and hold it under the laws of the United States to encourage settlers on unoccupied lands. Ques. No. 9. Under what act of Congress or law of the United States do you hold it? Ans. I am not familiar with the dates of the acts I refer to. I am not positive as to its name. Ques. No. 10. Do you hold it under any act of Congress or law of the United States; if so, under what law? Ans. I do hold it by virtue of acts that have been passed to encourage settlers on unoccupied lands, but the title of those acts I am not familiar with. Ques. No. 11. Don't you know that you hold that land adversely to Capt. Sutter and those claiming under him? Ans. I know they claim those lands. Ques. No. 12. Don't you know that they claim those as being lands granted to Capt. Sutter by the Mexican government? Ans. They are lands that have been so represented to me. as lands that were granted to Capt. Sutter by the Mexican government. 266 Ques. No. 13. Have you titles to these lands from Capt. Sutter, or do you claim them by title from Capt. Sutter or his grantees? Ans. I do not hold them from either Capt. Sutter or his grantees. Ques. No. 14. Are not Warren, Cabels, Foster, and Brockway, settlers on the land claimed by Sutter, holding adversely to him? Ans. Three of those, namely, Warren, Cabels, and Brockway, are The United States vs. Sutter. 197 settled on lands what are sometimes represented as within the Sutter claim; Foster is not. Ques. No. 15. Did not Foster formerly reside on the lands within the Sutter claim; if so, was he not ejected from the same in a suit of Sanders against Fox, Foster, and Mack? Ans. Foster has shown me about five acres of the tule, in the back part of his claim, which was in dispute in that action. Ques. No. 16. Does not Foster now claim a tract of land within those limits, or has he not heretofore? Ans. He does not now; he has heretofore. Ques. No. 17. Do you belong to any body of men or association formed for the purpose of raising money for the purpose of employing counsel and proceeding testimony, to be used in this case before the United States land commissioners, the district or other court of tribunal, or other officer, for the purpose of delaying or defeating the claim of the appellee, or have you at any time heretofore? Ans. I have never joined any league or secret association for any such purpose; I don't know as I ever appropriated any money for that purpose; I have never belonged to any such body for that purpose. Ques. No. 18. Have you ever paid or promised to pay, or become liable to pay, any money or sums of money whatever, to be employed or used in the employment of counsel, or in procuring testimony to be used before the board of United States land commissioners, the district or other court, tribunal, or officer, to procure the defeat of Sutter's grant? Ans. I have pledged $500, or to assist the government in the employment of counsel in this case. [Counsel for appellee here objects to the foregoing deposition, on the grounds of irrelevancy and the incompetency of the wit267 ness, and of the testimony and of the witness's interest in this case, and on all other legal grounds, except those mentioned in the agreement heretofore annexed.] C. W. HOIT. Sworn to and subscribed before me on this 29th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. Deposition of John F. Madden. John F. Madden, a witness produced on the part of the appellants, being duly sworn, on oath deposes and says: Ques. No. 1. What is your name, age, residence, and occupation? Ans. My name is John F. Madden; age, 29 years; residence, Sacramento city; occupation, mining, holding office, and receiving rents from lands; my trade is saddle and harness maker. Ques. No. 2. Were you ever present at an examination of John A. Sutter, junior, as a witness in an action tried before C. C. Sackett, a justice of the peace in and for the city of Sacramento, and State of 198 The United States vs. Sutter. California, wherein Julius Wetzlur et al. were plaintiffs, and M. A. Milligan et al. were defendants? Ans. I was present a portion of the time. Ques. No. 3. Did you hear, on such an examination, John A. Sutter, junior, testify by what title plaintiffs hold the land in controversy; if yea, what was that title? Ans. I was in the court when young Sutter was giving his testimony in relation to lands claimed by him in this State. He said that at that time he had no interest in any lands in the State of California, by virtue of any grant; that he claimed one hundred and sixty acres of land as a settler, by possession, and that possession consisted in using that place as an embarcadero. That was the land in controversy, and is situated in Sacramento city, near the junction of I street and the Sacramento river. This was in June of 1850. Cross-examination. Ques. No. 1. From your knowledge, and from general report, had not John A. Sutter, jr., sold out his interest in this grant to his father, or transferred it? Ans. The general report was, that young Sutter had reconveyed to his father all the interests which the old man had before conveyed to the young man. Ques. No. 2. Did John A. Sutter, jr., say, on that examination, that he had sold out his interest in this grant, or these grants, to his father? 268 Ans. I did not hear him say so; the question was not asked him while I was present. I did not hear him asked if he ever had a grant. [Counsel here objects to the foregoing deposition on the grounds of irrelevancy, and all other legal grounds not mentioned in the agreement hereto annexed.] JOHN F. MADDEN. Sworn to and subscribed before me on this 29th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. And the examination of witnesses is here closed on the 29th day of March, 1856. STATE OF CALIFORNIA, County of Sacramento. I, Samuel Cross, a notary public in and for the county of Sacramento, having my office and residence in the city of Sacramento, county and State aforesaid, do hereby testify that in pursuance of the agreement of parties, by their attorneys, which agreement is hereunto annexed, on the 25th day of March, 1856, at my office aforesaid, personally appeared John Bidwell, Henry A. Caulfield, James McClatchey, and James M. Sanford, and on the 26th day of the same month and year personally appeared Richard D. Ferguson, and on The United States vs. Sutter. 199 the 27th day of the same month and year George R. Nesbitt, and on the 28th Thomas J. Hall and George W. Foster, and on the 29th Samuel Norris, Chas. W. Hoyt and Jno. F. Madden, witnesses produced on the part of the United States, appellants; and the said witnesses being by me first duly sworn that they would testify the truth, the whole truth, and nothing but the truth, in an action pending in the United States district court in and for the northern district of California, wherein the United States are appellants and John A. Sutter is appellee, the said witnesses did testify, and their testimony was by me reduced to writing, as the same appears on the several pages of paper hereto attached, and numbering from "1' to "96" inclusive, and the evidence so taken was then by me carefully read to each of the said witnesses, and by the them subscribed in my presence. In testimony whereof, witness my hand and official seal, [SEAL.] hereunto affixed, at my office aforesaid, on this 29th day of March, 1856. SAMUEL CROSS, Notary Public, Sac. Co., Cal. Endorsed: Filed March 31, 1856. JOHN A. MONROE, Clerk, By W. H. CHEVERS, Deputy Clerk. 269 Deposition of Jesse Merrill. UNITED STATES DISTRICT COURT, Northern District of California: SAN FRANCISCO, April 15th, 1856. On this day before me, Geo. Pen Johnston, a commissioner of the United States for the district of California, duly authorized to administer oaths, &c., &c., came Jesse Merrill, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn, and testified as follows: Present: The acting U. S. district attorney on behalf of the United States, and Volney E. Howard, esq., on behalf of the claimant. Questions by the acting U. S. district attorney. Ques. 1. What is your name, age, and place of residence? Ans. 1. My name is Jesse Morrill; I am fifty-five years of age, and I reside at Sacramento city. Ques. 2. Are you acquainted with John A. Sutter, the claimant in this case; if yea, how long and where have known him? Ans. 2. I am acquainted with John A. Sutter, the claimant in this case;I have known him ever since the last of October or the first of November, 1849; I was first introduced to him when on the steamer 200 The United States vs. Sutter. McKim on the way from San Francisco to Sacramento city; I have known him in and about Sacramento city ever since. Ques. 3. Did you have a conversation with him, when you first became acquainted with him, about his claim to land in California; if yea, when did that conversation take place, and where, and what was the substance of it? Ans. 3. I did have such a conversation with him at the time I was introduced to him on board the steamer McKim, in October or November, 1849; when we reached Sutterville there were three or four vessels lying there, and I asked Capt. Sutter what place that was; he said it was Sutterville, and I fell into further conversation with him; I told him I had come out to make California my future home; I told him I had been travelling pretty much all over the world, and that I was tired of such a life, and wanted to get a piece of land to settle 270 down; he told me I could take some land anywhere about there in that vicinity; we then got up towards where we saw some vessels lying at Sacramento city; Capt. Sutter told me it was that city; I then asked him if he did not own all the land about there, and asked him about his grant; he told me that he had the land in possession, but he had no grant for any land below Feather river. I then landed and left the captain, and never had any conversation with him about lands until some time in the spring of 1850. I was then talking to him again about the land about Sacramento; he said it was so mixed up that he did not know what to make of it, but that I should have some land any way-I should have a block in the city; that he believed they were trying to fool him out of it, and he did'nt know what to say about it; he said his residence was at "Hock Farm," but that he staid mostly about Sacramento city. The next time I saw him was about August, 1850. I told him I was going home for my family, and wanted him to give me the land he had promised me; he said I should have it, and that was the last of it. Ques. 4. Are you acquainted with John S. Fowler; if yea, do you know whether or not he is interested in the event of this suit; if he is so interested, how do you know it, and what is the extent of his interest? Ans. 4. I know John S. Fowler; I was one of a committee of a benevolent association (I mean the Masonic order) that waited upon Mr. Fowler in the fall of 1853, Mr. Fowler in the fall of 1853; Mr. Fowler owed a man by the name of Deering, whom the Masonic order had been supporting some time, the sum of fifteen hundred dollars, and we waited upon him to get him to pay Deering some portion of the debt, so as to relive the Masonic order of the burden of his support. Mr. Fowler said that he had no money, but that he owned three thousand acres of land under the Sutter title, and that if the title was confirmed it would be very valuable; he offered to give Deering a deed for six hundred acres of land lying on the 271 American river, but he made no such deed, and money has never been paid. The United States vs. Sutter. 201 Cross-examination)-Questions by the att'yfor the claimant. Ques. 5. Have you ever been a member of the settlers' association or league of Sacramento county, and do you hold any land adversely to the Sutter title? Ans. 5. I have never been a member of the settlers' association or league. I live in Sacramento city, on a piece of land which I hold under a tax title, and for which I have no Sutter title, and for which I am now sued by a grantee of the Sutter title; since the commencement of the suit, within the last two weeks, I have agreed to purchase the Sutter title. JESSE MORRILL. Sworn to and subscribed before me this 15th day of April, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. Endorsed: Filed April 15th, 1856. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Cl'k. Deposition of Jas. C. Zabriskie. UNITED STATES DISTRICT COURT, Northern District of California: SAN FRANCISCO, April 14th, 1856. On this day before me, Geo. Pen Johnston, a commissioner of the United States for the districts of California, duly authorized to administer oaths, &c., &c., came James C. Zabriskie, a witness produced on behalf of the claimant, in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: The acting U. S. district att'y on behalf the United States, and Volney E. Howard on behalf of the claimant. 1st questions by att'y for the claimant. Ques. What is your name, age, and place of residence? Ans. 1. My name is James C. Zabriskie; my age is fifty-two years; and I reside at Sacramento city, Cal'a. Ques. 2. How long have you resided in California, and how long and where have you known John A. Sutter? 272 Ans. 2. I arrived in California in July, 1849; I became acquainted with John A. Sutter in August of the same year at Sacramento city, and have known him ever since. Ques. 3. Did you ever act for John A. Sutter as an attorney-at-law? If yea, state at what time, and in relation to what subject. Ans. 4. I did act for John A. Sutter as attorney-at-law from July 202 The United States vs. Sutter. 1850. to July, 1851, during which time I transacted nearly all his legal business. Ques. 4. In your capacity as attorney did you ever have possession of grants of land to Sutter, or become acquainted with any such grants? If yea, state by whom they were granted and signed, in what language they were written, their dates, contents, and character, so far as you can recollect. Ans. 4. I never had possession of any such grants, but became acquainted with such; there were two of them in the possession of John S. Fowler, who was attorney in fact of John A. Sutter, and occupied a portion of my office. One of these grants purported to be made by Alvarado to Capt. Sutter for eleven leagues of land, and was dated, I think, in July or June, 1841; the other purported to be from Micheltorena, for twenty-two leagues of land, and was dated on or about November, 1844, and they were both written in the Spanish language. Ques. 5. To whom was the sobrante grant made? Ans. 5. My impression is that the sobrante grant was made to John A. Sutter and son. Ques. 6. Look at the translation of the grant now shown you, and state whether it corresponds with your recollection of the original grant. Translation of grant C. —Exhibit A. [Translation ] Manuel Michela., brigadier general of the Mexican army, adjutan general of the staff, governor general-in-chief, and inspector general of the department of the Californias. Whereas Don Juan Augusto Sutter, a Mexican naturalized citizen, and his son, John A. Sutter, have solicited, for the personal benefit of themselves and family, the surplus of land within his rancho, named New Helvetia, as laid down in the map which accom273 panies the grant, and complied with the usual investigation and inquiry in relation thereto, required by law and regulations, by virtue of the authority conferred upon me, in the name of the Mexican nation, and for the good conduct and services which the Senior Sutter has rendered, and is rendering at the present time, I have conceded to them the mentioned lands, declaring in them the ownership thereof by these presents, subject to the approbation of the most ex'o assemblea departmental, under the following conditions: 1st. They may enclose it without interfering with the paths, roads, and servitudes. They shall enjoy it exclusively and freely, appropriating it to the uses or cultivation which suits their convenience. 2d. They can request the proper juez that he give them lawful possession by virtue of this decree, so that the boundaries may be defined, at the limits of which there may be placed, beside the landmarks, some fruit trees, or useful kind of forest trees. 3d. The land of which mention is made consists of twenty-two square leagues, described upon the map which accompanies the grant. The United States vs. Sutter. 203 4th. The juez who gives the possession shall have the land surveyed according to law, remaining the surplus that may result at the disposal of the nation for its convenient uses. 5th. Therefore I command that these presents, investing the title in them, and holding the same as firm and valid, shall be handed in for record in the proper book, and shall be delivered to the parties in interest for their security, and other purposes. Executed on this ordinary paper, having no stamped paper appropriate. Santa Barbara, this fifth February, eighteen hundred and forty-five. (Signed) MANUEL MICHELT'A. JUAN CASTANEDO, Sec'ry ad interim. I certify the foregoing to be a true and correct translation from the foregoing Spanish document filed in this office, in case No. 92, John A. Sutter. (Signed) GEO. FISHER, Sec'y. I, George Fisher, sec'y of the United States land commission to ascertain and settle the private land claims in the State of 274 California, do hereby certify that the foregoing is a true and correct copy of a document in case No. 92, wherein John A. Sutter claims a tract of land called New Helvetia, now on file in this office. In testimony whereof, I have hereunto subscribed my name, office of the above named commission, San Francisco, Cal'a, this twentyfourth day of March, 1854. (Signed) GEO. FISHER. Filed in office March 8th, 1852. GEO. FISHER. Sec'y. [The att'y for the claimant here offers a document in evidence, purporting to be a translation of the original "sobrante" grant, and asks that it be attached to and made a portion of this deposition. It is accordingly so attached, marked in red ink Exhibit A.-G. G. J.] [The acting att'y for the U. S. objects to the introduction of said document in evidence, and to the interrogatory based thereon, on the grounds that the interrogatory is leading, and that the document is irrelevant and incompetent testimony, and that the document is not an examined one.] Ans. 6. It corresponds to the original as to the general character of its contents, but I cannot be certain as to the correspondence of the language. Ques. 7. How did you become acquainted with the contents of the original grants to Sutter of which you have spoken? Ans. 7. Eugene F. Gillespie and Henry E. Robinson had become the purchasers of the interest of John A. Sutter in those grants (others were interested in the purchase with Gillespie and Robinson) in May, 204 Tlhe United States vs. Sutter. 1850, I think; Fowler was the agent for the grantees, and held possession of the grants in my office. I was the attorney of Robinson and Gillespie, and in that capacity was required to prepare important papers connected with this land. Gillespie and Robinson were good Spanish schollars; could read and translate the Spanish language with facility. Whenever I had occasion (which was quite frequent) to examine those grants, I did it by their aid, and thus became acquainted with the character of those documents. 275 Ques. 8. State anything else you recollect with regard to the character of these grants. Ans. 8. The grants appeared to bear every evidence, in their form and character, of legal or proper authentication in reference to the boundaries defined in the grants. I will give my description of them according to the best of my recollection, as follows: Commencing at the Buttes on the north, extending south to about five miles below the American river, east of Leidsdorff line and Feather river, and west of the Sacramento river. Ques. 9. Do you remember any other document or paper accompanying the grants? If yea, state what it was. Ans. 9. I do remember a map accompanied the grants, defining their boundaries. Ques. 10. Do you know what became of those grants and said map? Ans. 10. I do; they were burned up with my office, in August, 1851. Ques. 11. When did you first have any knowledge or hear of the Alvarado and Micheltorena's grants? Ans. 11. I think both of these grants were referred to, in conversation and in public discussions, as early as October or November, 1849; I am quite sure that the second grant was publicly referred to at a public meeting held in Sacramento city in December of that year. I knew the fact of the existence of these grants in June or July, 1850,when I found them in the possession of Fowler, as before stated. Ques. 12. How much land did Sutter claim and occupy south of the American river? Ans. 12. I never heard Sutter state the precise quantity of land he claimed south of that river. My impression, derived from conversations with those interested in those grants, as well as from the language of the grants and the map accompanying the same, is, that it extended south about five miles below the American river, and east to Leidesdorff line. Sutter has improved a large quantity of land in the vicinity of Sacramento city by enclosure and cultition. Ques. 13. Was any portion of the tract of land on which the city of Sacramento is situated so overflowed, previous to the erection of the levees, as to be unfit for cultivation during some portion of each year? 276 Ans. 13. Yes; there were some sloughs and Tule lands in the immediate vicinity of those sloughs which could not be and cannot be cultivated during any portion of the year without reclaimation; but a verylarge proportion of the land can (embraced within the city limits) be cultivated-I should think aboutnineteen-twentieths. The United States vs. Sutter. 205 Cross-examination.-Questions by the acting attorney for the United States. Ques. 14. Are you interested, directly or indirectly, in this suit, and would the confirmation of the claim of Sutter inure to your benefit; if yea, how much land do you claim under Sutter, where does it lie, and what is its value? Ans. 14. I own some outside lots of land of small value-the title to which, in any event, is uncertain-which, if the existing grants are confirmed, might inure to my benefit. The largest and most valuable portion of my property is in my possession, and would not be affected by the decision, although I derive the title to it through Sutter. 1 presume the property in my possession would bring at sale at this time twenty or twenty-five thousand dollars; the outside property, which is held adversely to me, and which I would obtain by a confirmation of the Sutter title, is worth about five thousand dollars. Ques. 15. Are you acquainted with the Spanish language, or with the general appearance of grants to lands issued by the Mexican government; if yea, where and how did you become so acquainted? Ans. 15. I am sufficiently acquainted with the Spanish language, when either written or spoken, to distinguish it from any other language; but I have no knowledge of the form or particular mode of authentication of Spanish or Mexican grants. Ques. 16. Iow do you know that either or both of the grants mentioned by you were signed by a governor or governors of California? Ans. 16. I knew historically that both Alvarado and Micheltorena had occupied the position, at different times, of governor of the territory of California. I saw their names attached to those grants, which contained other evidences of authentication, and consequently I believed them genuine; there were seals attached, and the 277 general form of the grants were the other evidences of authentication to which I refer. I think one of the grants was written on parchment; about the other I do not remember. Ques. 17. Is your recollection of the character and matter of those grants clear or indistinct? Ans. 17. I recollect distinctly that I frequently saw those grants; that they were signed by Alvarado and Micheltorena, and attested by Jimeno, the secretary, and I think Castenado, and that they purported to convey to Sutter the land described by me in a previous part of this deposition; but the particular language used in either of the grants I cannot state without referring to the printed or written translation. When I say the grants were signed by Alvarado and Micheltorena, and the attestions signed'by Jimeno and Castenado, I mean they purported to be so signed. Ques. 18. Was the description of the land alike in each grant; if not, wherein did the descriptions differ? Ans. 18. I think the first grant conveyed eleven leagues within the boundaries described by me, and the second twenty-two leagues of the surplus within the same boundaries. 206 The United States vs. Sutter. Ques. 19. Which of those grants was bounded by the Leidesdorff grant, and how do you know it was so bounded? Ans. 19. I think neither of the grants referred to Leidesdorff's line, but Leidesdorff's grant referred to Sutter's line, and thus I learned that Sutter's eastern line south of the American river was connected with that line. Ques. 20. By what words of description did you ascertain that Sutter's southern boundary was five miles south of the American river? Ans. 20. By no words in the grants, but by the lines on the map, which were generally understood to extend about that distance south. Ques. 21. Look at the map marked A. P. L., exhibit to the deposition of J. J. Vioget, March 8, 1855, facing page 106 in the transcript in this case, from the land commission, and state whether that map is a correct copy of the map referred to by you? Ans. 21. It is about five years since I saw the map, heretofore referred to, in the possession of Fowler; I do not remember ever since until now to have examined a copy of a map of that survey; I cannot, therefore, have any distinct recollection of particular lines278 the general facts only are impressed upon my memory; I think, however, that the map now referred to is quite similar to the one I saw in the possession of Fowler. Ques. 22. Point out in the said map, attached to the deposition of Vioget, the southern boundary of Sutter's grant, and state how you know it to be such southern boundary? Ans. 22. The map I saw in the possession of Fowler represented three lagunas as the southern boundary; the map now referred to has the same designation as the southern boundary; there are three lagunas located about five miles below the American river, which have frequently been pointed out to me as those referred to in the map I saw in possession of Fowler; the dotted lines, which purport to be the southern boundary on both maps, extend to those lagunas. Ques. 23. Did not those grants call for the Feather river for the eastern boundary; and if yea, how could the land granted lie south of Feather river, and what would be the eastern boundary of the land south of Feather river and north of the American? Ans. 23. They did, but likewise referred to a map accompanying the petition and grant, which map, as I have stated, determined the boundaries. I cannot now state what determined the eastern line between the American and Feather rivers. Ques. 24. How are you able to state that the translation of the original grant shown you (Exhibit A, G. P. J., annexed to this deposition) is correct, and do you not observe that the date in it does not correspond with your recollection of the date in the original grant? Ans. 24. My recollection is, that the paper shown me, in its general description and character, is like that read and translated by Gillespie and Robinson; my recollection of the date is quite as correct as I expected it to be, considering the period of time that has elapsed since I was familiar with those grants. Ques. 25. Have you been engaged in raising crops since you came to California; and is not the whole of Sacramento city, unless protected The United States vs. Sutter. 207 by levees, liable to inundation from the swelling, impulses and currents of the rivers near it? 279 Ans. 25. I have raised one crop only; nearly the whole city has been overflown several times since I have resided there, but the water has passed off in time to enable those who desired to raise crops during the year to do so. Direct examination resumed. —Questions by the attorney for the claimant. Ques. 26. Do you mean to be positive in your recollection that the Micheltorena grant was dated on or about November, 1844? [Objected to by the act'g att'y for the U. S., as being leading, and as a cross-examination, intended to vary the previous statement of the witness.] Ans. 26. I do not; I was answering from memory, which is vague as to dates and particulars. Ques. 27. Is there any circumstance which may have induced you to suppose that the date of that grant was November, 1844, instead of February, 1845? [Objected to by the acting att'y for the U. S., for the reasons assigned in the objection to the last foregoing interrogatory.] Ans. 27. I was familiar with the terms of a deed from J. A. Sutter to J. A. Sutter, jr., which appears in the transcript in this case, copied on page 135. and which refers to the two grants, stating one of them to be dated on or about November, 1844, and I think my memory was influenced by that fact in determining the date of that grant. I supposed my memory was correct when I stated the grant was dated on or about November, 1844; and relying now upon my memory alone, without the aid of other facts within my reach, I would still say the grant was dated in November, 1844. I was familiar with the deed from J. A. Sutter to J. A. Sutter, jr,, as early as 1850, while I was acting as attorney for Sutter; I never noticed any variance between the dates recited in the deed and the date of the Micheltorena grant, but I never had occasion to examine that deed with a view to determine that fact. JAMES C. ZABRISKIE. Sworn to and subscribed before me, this 14th day of April, A. D. 1856. GEO. PEN JOHNSTON, U. S. Commissioner. 280 The attorney for the government objects to the foregoing deposition being read and considered as evidence: 1st. Because the witness is interested in the result of this suit. 2d. Because the witness nothing of the genuineness of the grant. 208 The United States vs. Sutter. 3d. Because the evidence is irrelevant, and otherwise incompetent, 4th. Because it contains an attempt to vary the instrument of title. GEO. PEN JOHNSTON, U. S. Commissioner. Dated San Francisco, April 14th, 1856. Endorsed: Filed April 15th, 1856. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Clerk, Stipulation of counsel. United States district court for the northern district of California. THE UNITED STATES, appellants, ) vs. JOHN A. SUTTER, appellee. In this case, the same being an appeal from the decision of the United States board of land commission for the adjustment of land titles for the State of California, organized under the act of Congress for the 3d of March, 1851, it is agreed by counsel that the archives in the surveyor general's office for the State of California have been examined, and that no grant or copy of grant dated February 5th, 1845, can be found among said archives. J. H. McKUNE, For the plaintiff appellant. V. E. HOWARD, For appellee. July 14th, 1856. Endorsed: Filed July 15th, 1856. JOHN A. MONROE, Clerk, W. H. CHEVERS, Deputy Clerk. 281 Copy of expediente relative to "Nemshas." Sello cuarto, dos reales. Habilitado provisionalmente por la aduana maritima del puerto de Monterey, en el departamento de las Californias, para los afnos de mil ochocientos cuarenta y cuarto, y mil ochocientos cuarenta y cinco. PABLO DE LA GUERRA. MICHELTORENA. Ad'a Mat'a de Mo., 1 \ Seal. EX'MO SEIOR GOBERNADOR: Teodoso Sicard, nativo de Francia y Mejicano de naturalizacion, ante V. E. con el mas profundo respeto se presenta y espone que habiendo adquirido algunos bienes del campo, y descando dedicarse a la agricultura, he registrado un terreno baldio situado en los margenes del arroyo de lom Osos o Tancas, y conocido The United States vs. Sutter. 209 con el nombro de Nemshas cuyos linderos son al N. el arroyo de los Osos; al E. la Sierra Nevada, al S. tierra baldies, y al Pon'te terreno del Senor Sutter, y consta de cuatro sitios de ganado mayor como manifiesta el diseino qe. debidamente acompaia. P. T. A. V. E. ruego. MONTEREY, Julio 25, de 1844. Inf. Oct. 1, ex'ro del despacho tomando ante otros u to exel. necesario. MICHELT' A. EX'MO: Se digne concederle d'ho terreno en lo qe. recibira merced. NUEVA HELVECIA, Julio 6, de 1844. Quedo de V. E. el mas atanto serv'or. Pr. THEODORO SICARD. S'OR GOBERNADOR: A muchas solicitudes de la naturaliza como la precedente, cc les ha puesto la providencia de espuarse hasta que V. E. pueda hacer la vicita por les rios del Sacram'to y San Joaquim, y como tambien, no hay un diseio general de aquellos terrenos, no se podran hacar tal vez con haciesto, las conseciones que se pretenden por lo que se a V. E. lo tuviese habien podra quedar prena'te este esped'te hasta que no se despachen las solicitudes a que me refierro. Monterey, Julio 26, de 1814. MAN'L JIMENO. 282 MONTEREY, Julio 26, de 1844. Ocupedo provisionalmente hasta mi subida despachan. MICHELT'A. S' or Juez y Encargado de la Jurisdiccion del Sacram'to: Pedro Teodora Sicard, Mejicano pr. naturalizacion, a V. suplico se sirva informar si el terreno qe. manifiesta el adjunto diseno es baldio, contodo el demas qe. V. crea necesario. Que teniendo qe. pasar a la capital a Ilevar mi particion a manos del E. S. gobernador pa. impetiar de S. E. d'ho terreno, y siendo preceso el informe de V. como juez de la jurisdiccion a qe. pretenece, pa. obvear la demora qe. sufieria mis instancias en el transito de informe si tuviese qe. venir desde Monterey, hasta aqui pa. el y regresar a aquella capital pa. el decreto definitivo de S. E. A. V. El terreno que se solicita en este pedimento es baldio y no pertenece a persona, pueblo ni corporacion, y pa. los fines que convengan doy este inforre Nueva Hlelvecia, a 1 de Julio, 1844. J. A. SUTTER. Suplico se sirva informar al margen de esta solicitud lo qe. crea de justicia, despensando el srso. de papel comun pr. falta del sellado. [REc. CCLVIII, D. T. 1862.]-14 210 The Unitel States vs. Sutter. NUEVA HELVECIA, a 1 de Julio, de 1844. Quedo de V. el mas atento servidcr. Pr. THEODORE SICARD. [For map see original, page 282.] Manuel Micheltorena, Grl. de Brigada del Ejercito Mejicano Ayudante Gral. de la plana mayor del mismo, Gobernador, Comandante Gral. e Inspector del Departam'to de Californias. No pudiendo ahora por estar sumamente ocupado este gobierno supremo departmental estender uno por uno los titulos respectivos a todos los ciudadanos qe. han solicitado terrenos con informes a su favor del S'or D. Augusto Sutter, capitan y juez encargado de la jurisdiccion de Nueva Helvecia y Sacramento, a nombre de la nacion 283 Mejicana, les confiero, por estas letras, la propiedad de ellos y sus familias de los respectivos terrenos marcados en sus instancias y disenios, a todos y a cada uno, de los qe. hayan solicitado y obtenido informe favorable del espusado S'or Sutter, hasta, boy dia de la f'ha sin qe. ucedie puede disputarles su propiedad, sirviendoles una copia de este que les dara mas adelante el S' or Sutter, de titulo formal, con el qe. se presentaran a este gobierno para estenderles el mismo titulo en la debida forma y papel sellado correspondiente, y para la debida constancia, en todos tiempos. doy este documento qe. sera reconcido y acatado por todos las autoridades civiles y militares de la nacion Mejicana, en este y en los demas departamentos, autorizado debidamente con los sellos militar y de gobierno, en Monterey, a veinto y dos de Diciembre, de mil ochocientos y cuarenta y cuatro. (Sig.) MAN'L MICHELTORENA. Certifico que es copia, Nueva Helvecia, Mayo 20, de 1846. J. A. SUTTER. Endorsed: No. 196, Claude Chana. Rancho de Nemshas, B Espediente. Filed in office April 21st, 1852. GEO. FISHER, Sec'y. Recorded in Record of Evidence, vol. 1, pages 129 and 130. R. ROSE, Att'y. GEO. FISHER, Sec'y. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my charge and custody the records of the board of U. S. cormissioners to ascertain and settle the private land claims in California, do hereby certify that the seven preceding pages exhibit a true copy of a document filed in case No. 196 on the docket of said board. The United States vs. Sutter. 211 Given under my hand and official seal at the city of San Francisco, Cal., this twenty-sixth day of April, 1856. ]SEA, L~ JOHN C. HAYS, I[SEAL.] U. S. Sur. Gen'l U. S. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk. Pr. W. H. CHEVERS, Deputy. 284 Copy of grant, certificates, map, &c., in relation to "Jimeno Rancho." Sello primero, ocho pesos. Habilitado provisionalmente por la aduana maritima del puerto de Monterey, en el departamento de las Californias, para los anos de mil ochocientos cuarenta y cuatro y mil ochocientos cuarenta y cinco. PABLO DE LA GUERRA. MICHELTORENA. ISEAL.] E1 C. Manuel Micheltorena, General de Brigada del Ejercito Mejicano, Ayudante General de la plana mayor del mismo, Gobernador, Comandante General e Inspector del Departamento de Californias. Miicheltorena to Jimeno- Grant. [SEAL.] Por cuanto D. Manuel Jimeno ha pretendido para su beneficio personal el sitio que se halla des ocupado entre el rancho que se le ha concedido a los hijos D. Tomas 0. Larkin el rio del Sacramento y las tierras valdeas que estan por la parte del sur todo conforme se demuestra en el diseno respectivo, practicadas previamente las diligencias y averiguaciones concernientes segun lo dispuesto por leyes y reglamentos de la materia usando de las facultades que me son conferidas a nombre de la nacion Mejicana he venido en concederle el terreno mencionado sugetandose a las condiciones siguientes: la. Podra sercarlo sin prejudicar las travesias caminos y servidumbres lo disfrutara libre y esclusivamenta destinandolo al uso o cultivo que mas le acomode. 2a. Solicitara del jues respectivo que le de la posesion juridica en vertud de este despacho por el cual se demarcaran los linderos en cuyas limities pondra amas de sus mohoneras alguno arboles frutales o silvestres de alguna utilidad. 3a. Si contraviniere a estas condiciones perdera su derecho al terreno. En consecuencia mando que teniendose por firme y valedero al presente titulo se tome razon de el en el libro respectivo y se en 212 The United States vs. Sutter. treque al interesado para su resguardo y demas fines. Dado en Monterey a cuatro de Noviembre de mil ochociento cuarenta y cuatro. MANUEL MICHEL'A. FRAN' CO ARCE. Queda tomada razon de este despacho en el libro respective a fojas. FRAN CO ARCE. Received for record at 10 o'clock on the 27th Sept., A. D. 1851; recorded Sept. 27, A. D. 1851, fol. 56 and 57, book A. U. P. MONROE, By JOHN T. HAYNES, 285 Dept. Clerk Colusi Co., California, J. T. HUGHES. Endorsed: No. 131.-Thomas 0. Larkin et al.-Jimeno rancho. H. Original grant to Jimeno. Filed in office Jan'y 5th, 1853. GEO. FISHER, Sec'y. Annexed to the deposition of Wm. D. M. Howard, of January 6th, 1852. GEO. FISHER, Sec'y. Recorded in Record of Evidence, vol. 6, pages 726 and 727. El que suscribe certifica en todo f6e de verdad; que en el anio de mil ochocientos cuarenta y cuatro siendo escribiente de la secretaria de gobierno de la Alta California, escribio un titulo en papel sellado que firmo el Senior General Dn. Manuel Micheltorena como gobernador de este pais en donde declaraba dueno en propiedad a Don Manuel Jimeno de un terreno en las margenes del Rio del Sacramento conforme al diceio respectivo en el cual se demar caba una estencion de once leguas colindante en primer lugar lugas con el terreno que se les consedio a los hijos de Don Thomas 0. Larkin. Y para la devida constancia se estiende la presente en Monterey a seis de Junio de mil ochocientos cuarenta y siete. PEDRO ESTRADA. El diceno a que me refiero es, segun me acuerda como se demuestra a la vuelta, y pa. constancia lo firmo en el mismo mes y ano. PEDRO ESTRADA. El que suscribe certifica en todo forma de verdad: que en el ano de mil ochocientos cuarenta y cuatro, estando encargado de la Tresoxexea de esta Alta California, le costa haber vista un titulo en papel sellado firmado por el Senor General Don Manuel Micheltorena como gobernado de este pais, en donde declaraba dueno en propiedad a The United States vs. S.dter. 213 Don Manuel Jimeno de un terreno en les margenes del Rio del Sacra. mento conforme al diseno respectivo en el cual se demarcaba una escala de once leguas pronievido por primer lindero el rancho que se les consedio a los hijos de Don Tomas O. Larkin. Y para la devida constancia se estiende la presente en Monterey a seis de Junio de mil ochocientos caarenta y siete. JOSE ABREGO. 286 Endorsed: Pedro Estrada and Jose Abrego.-Certificate respecting the Jimeno ranch. Recorded in the book B of records, of the manuscript 7 of Monterey, pages 49 -and 50, March 2d, 1850. WM. S. JOHNSON, Acting Record g Clerk. Recorded in the book of records of the municipality of Monterey, pages 133 and 134, Jan'y 18, 1850. WM. S. JOHNSON, Act'g Record' g Clerk. In new book of records, pages 49 and 50, Nos. 67 and 68. HUGO REID. No. 131.-Thomas O. Larkin et al.-Jimeno rancho. F. Certificate. Filed in office Jan'y 5th, 1853. GEO. FISHER, Sec'y. Recorded in Record of Evidence, vol. 6, page 263. GEO. FISHER, Sec'y. Ex'ma Junta Departamental. Manuel Jimeno ante V. E. con todo el respeto divide hugo presente. Que por el titulo adfunto se acredita habrese consedido a un favor un terreno en las margenes del Rio del Sacramento, y como a V. E. corresponde da su aprobacion, suplico se digne otorgarmela de lo que resibire gracia y merced tuveo lo necesario, &c. Sirviendo dispensarme el papel comun por no haber del correspondiente. MAN'L JIMENO. Monterey, Abril 21, de 1846. ANGELES, Junio 3, de 1846. Dado cuenta en session de hoy a la E. A. departamental con esta instancia, se mando persa en union del espediente respectivo a la concesion de terrenos baldios. AGUSTIN CHEVA. [For map see original, page 286.] 214 The United States vs. Sutter. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my charge and custody a portion of the archives of the former Spanish and Mexican territory of Upper California, and also the records and papers of the 287 late board of land commissioners to ascertain and settle private land claims California, by virtue of the power invested in me by law, do hereby certify that the preceding and hereunto annexed pages of tracing paper exhibit true copies of the following described documents, to wit: pages numbered one, and two, and three, exhibit a copy of the grant to Man'l Jimeno, with the endorsements therein, filed in case No. 131 of said land commission, in which T. 0. Larkin et al. are claimants against the United States for a place called "Rancho Jimeno;" pages four, five, and six exhibit copies of certificates signed by Pedro Estrada and Jose Abrago, with the endorsements thereon, on file in the above case; pages seven and eight exhibit a true extract and copy of map from expediente No. 413, in Spanish archives, a copy of which expediente is also on file in said case No. 131. Given under my hand and seal of office at the city of San Francisco, [SEAL.] Cal., this 26th day of April, A. D. 1856. ^[S^ *~B~ ~JOHN C. HAYS, U. S. Sur. Gen'l, Cal. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk. PR. W. H. CHEVERS, Deputy. Letter relative to petition for land on the San Ignacio river, &c.Translation. DECEMBER 28th. To Don Augusto Sutter, Commissioner of Justice of of the Frontier the Sacramento: In attention to the matters set forth in your note of the 18th instant, petitioning in the name of your eldest son, Don Juan Augusto, for a tract of land near the river of San Ignacio, it should held under advisement until the supreme government grants its consent, and to which information has been given of the disposition which the Russians had taken for the abandonment of the establishment of Ross. But it is necessary that you present your petition to the said superiority, accompanied with the proper map for the due decision thereof, the said land, till now, having belonged to the nation for the proper uses thereof. You can direct your petition to this government to make the necessary report thereon, in order that it may be acted upon by the supreme government. God, &c. The United States vs. Sutter. 215 A. Don Augusto Suter, Encargado de Justicia de la Frontera del rio del Sacramento: 288 D'BRE 28. Alentiendo a las razones que V. manifiesta en su nota de f' ha 18 de corriente pretentiendo en nombre de su hijo mayor Dn. Juan Augusto el terreno inmediato al rio de S. Ignacio, devera tomar en consideracion hasta que no se de el concentimiente del supremo gobierno aquien se le dio cuenta con la disposicion qe. habian torado los rusos de abandonar el establecm'to de Ross; pero es precizo qe. V. haga su instancia a la misma superioridad acompanando el diseno correspondiente para en divida determinacion per haber quedado hasto ahora el terrena mensionado a beneficio de la nacion pa. los usos convenientes; la instancia qe. V. baja puede dirigirli pr. conducto de este gobierno para poner el informe que sea justo para que en su consecuencia pueda recar la suprema determinacion. Dios, &c. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my office and in my charge and custody a portion of the archives of the former Spanish and Mexican territory or department of Upper California, by virtue of the power vested in me by law, do hereby certify that the preceding and hereunto annexed page of tracing exhibits true and accurate extract from an unbound book in said archives, entitled "Libro Borcador de la Correspondencia de oficio derijida a los Prefectos sub Prefectos y Jueces de paz del Departamento Correspondiente al alio de 1841." In testimony whereof, I have hereunto signed my name officially and caused my seal of office to be affixed, at the city of San [SEAL.] Francisco, this 26th day of April, 1856. JOHN C. HAYS, U. S. Surveyor General for California. Extract from the second section of the act of Congress providing for the survey of public lands in California, and for other purposes, approved March 3d, 1853. The Secretary of the Interior is hereby authorized to cause an official seal to be prepared for the office of the said surveyor 289 general, [Califorinia,] and any copy or extract from the plats, field-notes, and other records and documents on file in his office, when attested as such by the said seal and the signature of the surveyor general, shall, in all judicial matters, have the same force and effect as the original. Endorsed; Filed July 15, 1856. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Clerk. 216 TVie United States vs. Sutter. Copy of grant to Rio de los Molinos, approval, and map. Sello segundo, cuatro pesos. Habilitado provisionalmente por la aduana maritima del puerto de Monterey, en el departamento de las Californias, para los anos de mil ochocientos cuarenta y cuatro y mil ochocientos cuarenta y cinco. PABLO DE LA GUERRA. MICHELTORENA. [SEAL.] El C. Manuel Michelt'a, General de Brigada del Ejercito ]Mjicano, Ayudante General de laplana mayor del mismo, Gobornador, Comandante General e Inspector del Departamento de las Californias. Por cuanto D. Alberto G. Formes, Mejicano por naturalizacion, ha pretendido para su beneficio personal, y el de su familia el terreno conocido con el nombre de el Rio de los Molinas, colindante con las nargenes del Rio Sacramento, comensando los linderos desde el arroyo de los Berrendos, hasta donde uridan cinco sitios de ganado mayor por la parte del sur; practicadas previamente las deligencias y averignuciones consernientes segun lo dispuesto por leyes y reglamentos; usando de las facultades que me son conferidas, a nombre de la nacion Mejicana he benido en concederle el terreno mencionado declarandole la propiedad de el por las presentes letras sugetandose, a la aprobacion de la ex'ma asamblea departamental y bajo las condiciones siguientes: la. No podra venderlo, enagenarlo, ni hypotecarlo, imponer censo venarlo fianza ni otro gravamen alguno. 2a. Podra sercarlo sin prejudicar las travecias caminos, y servidumbres; lo disfrutara libre y exclusivam'te destinandolo al uso 6 cultivo que mas le acomode, pero dentro de un ano fabricara casa y estara habitada. 3a. Solicitara del juez respectivo que le de la posicion 290 juridica en virtud de este despacho por el cual se demarcaran los linderos en cuyos limites pondra a mas de sus mojoneras algunos arboles frutales 6 silvestres de alguna utilidad. 4a. El terreno de que se hace donacion es de cinco sitios de ganado mayor. El juez que diere la posecion la hara medir conforme a ordenanza quedando el sobrante que resulte a la nacion para los usos convenientes. 5a. Si contraveniere a estas condiciones perdera su derecho al terreno y sera denunciable por otro. En consecuencia mando que serviendole de titulo el presente y teniendose por firme y valedero se tome razon, de el en el libro respectivo, y se entreque al interesado para su resguardo y demas fines. Dado en Monterey, a veinte de Diciembre, de mil ochocientos cuarento y cuatro. MAN'L MICHELT'A. MAN'L JIMENO, S'rio. The United States vs. Sutter. 217 Queda tomada razon de esta consecion en el libro respectivo a fojas 14. JIMENO. [For map see original, page 290.] Pio Pico, Gobernador Interim del Departamento de las Californias. La ex'ma asamblea departamental en sesion de hoy ha acordado lo siguiente. Se aprueba la concesion hecha por el superior gobierno del departamento en titulo librada con fecha 20 de Diciembre, de 1844, en favor del ciudadano Mejicano por naturalizacion Alberto G. Toomes, del parage conocido con el nombre de rio de los Molinos, cituado en las margines del llamado Sacramento en estencion de cinco sitios de ganado mayor de conformidad con la ley de 18 de Agosto, de 1824, y el articulo 5o del reglamento de 21 de Noviembre, de 1828.,k Y para reguardo de la parte de Dn. Alberto G. Toomes, lo hugo asi saber. Dado en la ciudad de los Angeles, en esto papel comun por falta de sellado a ocho de Octubre, de mil ochocientos cuarenta y cinco. PIO PICO. JOSE MA. COVARRUBIAS, S'rio. 291 Endorsed. No. 106.-Alber G. Toomes, Rio de los Molinos.-B.-Title, map, and approval. Filed in office March 15th, 1852. GEO. FISHER, Sec'y. Recorded in book of Records of Ev., vol. IX, pages 259 and 260. GEO. FISHER, Sec'y. No. 106.-Albert G. Toomes. Original grant of Rio de los Molinos, five leagues in Butte county, by Gov. Micheltorena, with approbation of departmental assembly, &-c. P. ORD, Attorneyfor Grantee. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my charge and custody the records and papers of the late board of United States commissioners to ascertain and settle the private land claims in California, by virtue of the favor vested in me by law, do hereby certify that the six preceding and hereunto annexed pages of tracing paper, numbered from one to six, inclusive, exhibit a true and accurate copy of a grant to Albert G. Toomes of a place called Rio de los Molinos, together with the 218 The United States vs. Sutter. map of the same and the approval of the departmental assembly, and the endorsements thereon, on file in case No. 106 on the docket of said board. [SEAL.] Given under my hand and official seal, at the city of San Francisco, Cal., this 26th day of April, A. D. 1856. JOHN C. HAYS, U. S. Sur. Gen', Cal. Endorsed: Filed July 15th. 1856. JOHN A. MONROE, Clerk. Pr. W. H. CHEVERS, Dept'y Clerk. C.-Letterfrom Valleo to ]Micheltorena. SONOMA, Dic'bre 28, 1844. S'or G'ral D. Manuel Micheltorena: S'or de mi respecto. Las proclamos que trajo el S'or Limantur se han repartido con gusto y cres que han surtido el efecto que se propieso el gob'no todas las dias espiro las comunicaciones que W. me ununciad por el correo del S'or Sutter, y ellas me sacaran de las dudas en que me hallo. Conosco s'or g'l mi prosecion verdadero, como 292 vaise en su apreciable de 18, del corriente, y ureper aun la posecion de pais qe. orife. Yo nada soy, el pais importa demarcado a las intereces nacionales y al decoro del gob'no. No hay una carta de las que he tenido el honor de dirifir a V. que no teng( algo relativo al peligro positivo en que se encuentro la Alta Calafornia, y muy principalm'te la parte norte de ello, recuerde V. los anlena'tes y vera que por el Rio del Sacram'to anuncia a V. que era el denotero de milas de emigrantes peligrasas. Estan lleguado actu alm'te numerosos partedus de familias, hombres demados, &c., &c. el establecimiento militar del S'or Sutter, y que fuerzo puede imponel les respeto; ninguno Gala no se cumplan mes oaticasiros, y que todo sea pro-ocuparsiones mas, pero si saberon falledos, se aprocuno mucho a la verdad por las provabilidades. Sus dicusiones interiores, seguran' te el an mucho mas ocasion, y cuo qe. se signe el pais de la manera que hasta aqui, perdera mucho mas pronto su importancia, y nos veremos embustos en minas, si V. no se apresura a calmar lo presente crisis con su accustumbrado terio haciendo qe. los Mejicanos y los Californios (es necesario esta clasificacion) se dieran el abraso de reconciliacion, deponiendo, ante las aras de la concordia, los odios y los resentimientos asiendose para defender el pais. Permitano V. que le haga estos pequefos observaciones; se dirijir al bien gral. y al honor nacional. Me perserado que de otro manera las cosas se pondran mal y debilitado el gob'no, no podra atender a la segueridad comun. Asi misno si los digo a la f' ha, Alvarado y Castro, quienes, segun se me asegura se hallan en San Jose en virtud del art'o lo, de las convenios celibrados, el lo De. Despues de los acontecim'tos politicos hu sufrido esta frontera mucho, por falta de fuerzo armada; el armamento de estrangeros hecho por el Sr. Sutter, con el nombre del gob'no ha sido causa de que varias partidas de ellos de 20 y 23 hombres cada una s& The United States vs. Sutter. 219 hayan robado partidos de caballada manza de varios rancho y cometido violencios de otro clace. Con pretesto de la caballada del gob'n-o han llebadose la de muchos particulares, de ciendo, que el gob'no paga todo inpurem'te les mande decir varios veces que si lo hacener por orden del gob'no que se dirigieran ami y le facilitaria lo que se 293 pidiese pero burlandose de tal franquesa, siguieron como tiendo atendas, hasta que los pocos soldados de bajo aun se unieron ellos para recibir del S'or Sutter su licencia segun, se los ofrecio. Depo a la calificacion de V. mis apreras, pues reducido a las pasos oficiales. Velarnos sin cesar y aun estoy haciendolo esto no es plasa, ni pueblo, ni nada, como lo he dicho a V. varios veses esta espuesto 4 pin'o que quiero passerse de la frontera y permanecer mas bajos Lodavia. Llegan a qui mil cuentos, y otros rantos les iran a V. pero como no se puede evitar, pasan y solo es escible lo que es rasonable. En todas mis cartas, he solicitado de V. contestacion, y V. no se digno hacerlo de ning'no manera este me han creer qe. esto V. cansado de escribir a vuien no infiere mas que molestio, seg'n se crea; pero no les cres asi pr. que provienen de las circunstancias, por ejempl6 pedirlo al dinero, tropo, viveres y otras cosas, qe. V. no tiene, son molestias necesarios qe. ni V. puede remidiar en yo dejar de peder. En:fin S'or g'ral por no haber podido exibir mes creditos con el S'or Lirnantur, hoy a hacer un sacrificio muy fuerto que jamas espere hacer, fiado en la confianza de qe. V. me libraria de el; po. no ha pedido hacerlo y esta vasta. Le decio todo genero de bienes su af'mo am's:y serv r 9 V. S'm. MARIANO G. VALLEJO. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State -of California, and as such having in my office and in my charge and custody a portion of the archives of the former Spanish and Mexican territory or department of Upper California, by virtue of the power vested in me by law, do hereby certify that the three preceding and hereunto annexed pages of tracing paper, numbered from one to three, inclusive, exhibit a true and accurate copy of a communication from Mariano G. Vallejo to Man'l Micheltorena, governor of California,,dated Sonoma, December, 1844, now on file in said archives. In testimony whereof, I have hereunto signed my name offi294 SA cially, and caused my seal of office to be affixed, at the [SEAL.] city of San Francisco, this 26th day of April, 1856. JOHN C. HAYS, ZU. S. Surveyor General for California. Extract from the 2d section of the act of Congress providing for the survey of public lands in California, and for other purposes, approved March 3d, 1855. The Secretary of the Interior is hereby authorized to cause an official seal to be prepared for the office of the said surveyor general, (California,) and any copy or extract from the plats, field-notes, and 220 The United Stytes vs. Sutter. other records and documents on file in his office, when attested as such by the said seal, and the signature of the surveyor general, shall in all judicial matters have the same force and effect as the originals Endorsed; Filed July 15th, 1856. JOHN A. MONROE, Clerk, W. H. CHEVERS, Deputy Cl'k. Translation of C. SONOMA, December 28, 1844. General Don MANUEL MICHELTORENA: MY DEAR SIR: The proclamations which Senor Limantour brought have been distributed with satisfaction, and I believe they have accomplished the intentions of the government. I am daily expecting the communications of which you notified me by Senor Sutter' s courier,. and they remove the doubts under which I am laboring. I know, General, my real protector, as you stated in your valuable letter of the 18th instant, and still better the possession of the country which you govern. I am nothing-the country is of too much importance to the national interests, and to the honor of the government. Not one of the letters which I have had the honor to address you fails to, contain something relative to the positive danger to which Upper California is exposed, and very particularly the northern part thereof. Examine the preceding ones and you see that I notified you that along the Sacramento river was the denoted of thousand of dangerous emigrants. Large parties of families, armed men, &c., 295 &c., are actually arriving at the military establishment of Senor Sutter, and what force is there to teach them respect? None. Would to God that my may not be fulfilled, and that the whole may turn out to be only my suspicions; but if they turn out to be false, they approved very nearly the truth according to probabilities. The internal dissensions afford a much better opportunity, and I believe that if the country continue in the same course which it has pursued up to the present time, it will much sooner lose its importance, and we will find ourselves involved in wars, unless, with your accustomed prudence, you hasten to calm the present crisis, making the Mexicans and Californians (this classification is necessary) embrace each other in reconciliation their hatred and resentments, and unite for the defence of the country. Allow me to make these few observatiens; they are made for the general welfare and the honor of the nation. I am persuaded that otherwise matters will go illy, and the government becoming weakened, will not be able to attend to the common security. I have to-day written the same to Alvarado and Castro, who, I am informed, are at San Jose, in pursuance of article 1st of the treaty made on the 1st of December. Since the political disturbances this frontier has borne with a great deal for the want of aih armed force. The armament of foreigners made by Sefior Sutter, under the name of the government, has been the cause of various parties of them, each of 20 and 23 men, robbing the various The United States vs. Sutter. 221 ranchos of their tame horses, and committing other acts of violence, under the pretext of government-horses they have driven off, many that belonged to individuals, saying with impunity that the government pays all. I sent them word several times that if they were doing it by order of the government they should apply to me, and I would furnish them with everything they should ask for; but they laughed at such frankness, and continued committing attacks until the few infantry soldiers joined them to receive permission from Senior Sutter, according as he had offered it to them. I submit my complaints to your consideration, and, having been reduced to a few officers, we are constantly on guard, and even I am on guard. 296 This is no plaza, nor town, nor anything, as I have informed you on sundry occasions. It is exposed to the first who may wish to possess himself of the frontier and reside still farther away. A thousand rumors arrive here, and as many may reach you; but since it cannot be avoided, they pass, and only what is reasonable is credible. In all of my letters I have desired your answer, and you have not condescended to answer one of them in any manner. This induces me to believe that you are wearied of writing to whom only troubles give, as it is believed, but I do not so esteem them, because they are the effect of circumstances; for example, the asking of you for money, troops, provisions, and other things which you cannot remedy, nor can I cease to ask. Finally, general, in consequence of not having been able to save my credit with Senor Limantour, I am going to make a very good sacrifice, which I never expected to make, reposing in the confidence that you would relieve me from it; but you have not been able to do so, and that is sufficient. That you may enjoy every blessing, is the desire of your most affectionate friend and humble servant, (Signed) MARIANO G. VALLEGO. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Clerk. E.-Letter to Diego Forbes. ANGELES, Diciembre 27, de 1845. S'OR DN. DIEGO FORBES. ESTIMADO AMIGO: Durante mi estancia en la Yerba Buena me hizo el honor el S'or Prefecto Dn. Manuel Castro de valuse de mi ayuda para verificar un tratado con el S'or Sub Gobernador de las establicimientos Ruso Norte Americanos cuyo tenor en sustencia es el siguiente: lo. Dn. Manuel Castro se compromete a hacer todo lo posible para qe. este Gobierno Departamental se comprometa a payar lo qe. Dn. Juan Sutter debe a la compania Ruso N. Americana, que son $31,000 poco mas o menos en el termino de un ano. 20. El S'or Vice Gobernador se compromete me diante el 297 complimiento del articulo prim'o a ceder a esto Gobierno De 222 lhe United States vs. Sutter. par'l todos los derechos y reclamos qe. tienen contra el S'or Sutter por la cesion qe. le hicieron de todos sus posesiones en el puerto, de Bodega y en el establic'mto de Ross. 3o. Que aprobado el tratado por el presente gobernador se entiende qe. sera cumpledo por su sucesor en caso de qe. en el interim llegase otro en su lugar. 4o. Que durante el ano qe. se concede en este tratado puede la compania seguir resiviendo las sumas qe. pueda entregar el S'or Sutter a este las qe. al fin del tratado se descontaran de las 31,000$ consaveda. Al mismo t'po dejar el s'or vice gobernador un agente apo. derado de la compaflia para recivir por partes o por entero la suma espresada de este gobierno departamental. Observera vmd. como es publico y notorio qe. el S'or Sutter, se vera en la imposibilidad de pagar ninguna suma de consideracion en el termino de un afo demo'do qe. el articulo 40. se admitio por dar gusto al b'or Vice Gobernador Ruso; asi como el 30. qe. no se le quiso negar por cortesia; quando se sabe muy bien qe. no era necesario; por que los tratos de un goberno legitimo, son respetados por todo gobierno lejitimo qe. le succeda. El tratado fue firmado en Castellano e Yngles, y sellado por el vice' gobernador, siendo testigos el Capitan Lindenberg, por parte de la. 50. que durante el termino de este tratado el gobierno no permitera qe. Sutter, sea molestado en sus posesiones a manos qe. sea necesario por alguna causa criminal. Comp'a R. N. Americana, y yo por parte del s'or prefecto en su presencia del S'or D'n Guillermo Leidesdorff, como agente qe. es de d'ha compania y babiendolo firmado todos solo falta qe. este s'or gobernador ponga su aprobacion y entregarlo mediante recivo a d'ho ageiite para que el tratado sea obligatorio por ambas partes. Esto se verificara en quanto llegue a qui D'n Manuel Castro, o mande el tratado qe. ya debia haberse recivido, pero como es asunto qe. esto gobierno de sea comunicar al supremo gobierno quante antes pidiendo los fondos necesarios para no tener qe. hechar mano aqui de ningun ramo de hacienda desea mandar una persona auto298 rizado a tratar con el supremo gobierno, o con particulares en caso de qe. las atenciores precunanas del gobierno no le peunitan hacer. [NOTE.-The corresponding place in the original outside the dotted line is worn out.] desembolsos. Mediante las conversaciones particulares qe. hemos tenido me ha parecido que estamos acordes sobre los males que puede tener a este pais el establecimiento de Sutter, qe. en el dia es el rendevous de todos los Norte Americanos, ambulantes qe. venien del otro lado de las montanas pedresosas. Asi mismo cuo qe. no sea ese mido de disension, agradarle al gobierno qe. lo ha elejido a vrmd. coino su representante en esta Costa, este gobierno esta sumaiente convencido The United States vs. Sutter. 223 de que ha llegado el dia en que espreciso desalojar al S'or Sutter, de un establicim'to qe. ya tiene el cirre de fortaliza pero conociendo qe. al verificarlo solam'te haciendo valer las leyes que prohiben semifantes establicim'tos, va. a carsur la completa perdida de las deudas de d'ho sor y deseose de no prejudicar a nadie sino al contrario protejer en quanto pueda el comercio e industria del pais; se ha valido de este medio para hacerse cargo de la dueda mayor asi como lo hara a su t'fo de las menores [NOTE. —The corresponding place in the original outside the dotted lines is worn out.] para que las medidas ulteriores tenga que tomar no dejentras de si ninguna senal de riuna. Considerando que la barca Joren Guipuzcoana debe salir muy pronto y que quizas no habra t'fo de mandar a vmd. copia del tratado le he puesto a vmd. los pomenores pa. su gobierno. En el enterim mediante la conanza con que vnd. me ha honrado me he tornado la libertad de insinuar a este s'or gobernador qe. una recomendacion de vmd. al S'or D. Eustaquio Barron, en favor de la persona qe. vaya autorizada por este gobierno, (todavia no esta nombrada y por eso sera preciso usar del termino general de la persona autorizada por este gobierno, asi lo ecsije la presuma del t'po) para tratar con el gobierno supremo o con qales quiera comerciante segun lo ecsijan las circunstancia podra tener muy buenos resultados y en conse299 cuencia recivira vmd. con esta una comunicacion particular del s'or gobernador, que despues se puede rejetir de oficio quando lleguen los docurnentos. El S'or Don Guillermo Leidesdorff, tiene copia del tratado; pero como parece ser representante de otra nacion no conviene pedorsela y todo este asunto lo recomiendo a su nmas estricto. Puede ser muy. Secreto sea qe. vmd. tenga a bien tomar interes o no en este asunto. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of Cal'fornia, and as such having in my office and in charge and custody a portion of the archives of the former Spanish and Mexican territory or department of Upper California, by virtue of the power vested in me by law, do hereby certify that the six preceding and hereunto annexed pages of tracing paper. numbered from one to six, inclusive, exhibit a true and accurate copy of certain loose sheets without signature in the archives of the said office. In testimony whereof, I have hereunto signed my name offi[SEAL.] cially and caused thy seal of office to be affixed, at the city of San Francisco, this twenty-second day of April, 1856. JOHN C. HAYS, U.S. Sur.veyor General jor Calibornia. 224 The United States vs. Sntter. Extract from the 2d section of the act of Congress providing for the survey of public lands in California, and for other purposes, ap' proved March 3d, 1855. The Secretary of the Interior is hereby authorized to cause an official seal to be prepared for the office of the said surveyor general, (California,) and any copy or extract from the plats, field-notes, and other records and documents on file in his office, when attested as such by the said seal and the signatures of the surveyor general, shall, in all judicial matters, have the same force as the original. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Clerk. 300 Translation of E. ANGELES, December 27th, 1845. DIEGO FORBES, Esq.: DEAR FRIEND: During my stay at Yerba Buena the prefect, Don Manuel Castro, did me the honor of requesting my assistance in the celebration of a treaty with his excellency the vice governor of the Russian North American establishments, the tenor of which in substance is as follows: 1st. Don Manuel Castro obligates himself to use every possible exertion for the payment of what Don Juan Sutter owes to the North American Russian Company, within the time of one year. by this departmental government, the amount of which is about $31,000. 2d. The vice governor obligates himself, upon the performance of the first article, to relinquish unto this departmental government all the rights and demands which they hold against Senor Sutter, for the conveyance which they made to him of all their possessions at the port of Bodega and at the establishment of Ross. 3d. That having been approved by the present governor, it is understood that the treaty shall be complied with by his successor, in case another should in the mean time occupy his place. 4th. That during the year granted in this treaty, the company may receive such sums as Senor Sutter may be able to pay, which at the completion of the treaty shall be deducted from the $31,000 above mentioned. At the same time the vice governor leaves an agent empowered by the company to receive in part or the whole of the aforesaid sum from this departmental government. 5th. That during the term of this treaty the government will not permit Seior Sutter to be disturbed in his possessions, except for some criminal offence. You will observe, as it is public and notorious, that Senor Sutter will not be able to pay any large sum within the term of one year, so that the 4th article was inserted out of compliment to the Russian vice governor: as also the 3d, which through courtesy to him was not objected to, since it is well known that it The United States vs. Sutter. 225 was not necessary, because the treaties of any legitimate gov301 ernment are respected by all succeeding legitimate governmen ts. The treaty was signed in Spanish and English, and sealed by the vice governor, Captain Lindenburg being a witness on behalf of the North American Russian Company, and I in behalf of the prefect, and in the presence of Don Guillermo Leidesdorff, as agent of the said company; all of whom having signed it, in order that the treaty be obligatory on both parties, only the approval of the goveriaor is wanting; and that it be delivered to said agent upon his receipt. This will be done as soon as Don Manuel Castro arrives here or sends the treaty, which by this time he should have received; but as it is a matter which this government desires to lay before the supreme government immediately, soliciting the necessary funds, there being nothing in any department of the State to appropriate, it wishes to send a person authorized to treat with the supreme government or with individuals, in case the pecuniary requirements of the government may not permit it to make disbursements. From the private conversations which we have had, it seems tome that we are agreed up the evils that may result to tlis country from the establishment of Sutter, which is at the present time the rendezvous of all the ambulant North Americans who come from beyond the Rocky mountains. I also believe that this nest of dissension will not be agreeable to the government which has chosen you as her representative on this coast. This government is fully convinced that the day has arrived when it is necessary to dislodge Seilor Sutter from an establishment which uiready has the appearance of fortification; but convinced that by doing so, only making effective the laws which prohibit such establishments will cause the entire loss of the debts of said Sutter, and desirous not to injure any one, but, on the contrary, to protect as much as possible the commerce and industry of the country, it has taken this means of assuming the responsibilities of the largest debt, as it will also do of the smaller ones, at their turn, in order that the ulterior measures it may have to take may not leave behind them any traces of ruin. 302 Considering that the barque Joren Guipuzoana may sail very soon, and that I perhaps shall not have time to send you a copy of the treaty, I have inserted you the particulars for your government. At the same time, relying in the confidence with which you have honored me, I have taken the liberty of suggesting to his excellency the governor that a letter of recommendation from you to Don Eustaque BaIrron in favor of the person who may be authorized by this government (who still is not appointed, and it will therefore be necessary to use the general term, the person authorized by this government-thus the urgency of the occasion requires it) to treat withi the supreme government, or with some merchant, as circumstances may require,.would be of great service, and, in consequence, you will receive with this a private letter from the governor, which can subsequently be repeated officially when the documents arrive. Don Guillermo Leidesdorff has a copy of the treaty; but as he ap[REC. CCLVIII, D. T. 1862-15 226 The United States vs. Sutter. pears to be the representative of another nation, it is not proper to request it of him; and I would recommend the whole of this matter to the strictest secrecy. It should be kept very secret, whether you think proper to interfere in the matter or not. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Clerk. G.-Communication from Sutter to Governor. Ex' ma S'or Gob'r de este Departamento: Juan Augusto Sutter ciudad'o Mejicano pr. naturalizacion, y dueno del establecimiento llamado Nueva Helvetia a la orilla del Rio del Sacramento en la frontera del norte de esta California ante V. E. contodo el respecto devido y dignidad qe. a V. E. corresponde me presente y digo que suponiendo qe. mi detencion en esta ciudad proviene de la fuera armada, con qe. me uni al S'or G'ral D. Manuel Micheltorena, me sera permitido desenvolver las razones qe. a ello me obligaron. Estando yo en mi dicho establecimiento tube ordenes ver303 vales del espresado S'or G'ral pa. alsitar toda la fuerza qe. y 6 pudiese preparar, prometiendome franquear las armas qe. se nesecitasen, y con el objeto de defender los derechos del gob'o qe. se me hizo entender estaban amenasados: Como pr. el reglamento de duchiares me nombro el E'mo S'or Geb'r, entonces Capitan de una de las companias qe. establecian me en contre obligado a obeser la orden, qe. se me comunicaba y qe. el S'or G'ral, repetio como lo manifiesta la nota original qe. puse en manos de V. E. Esendudable E'mo S'or, qe. y o en tal movimiento no hise otra cosa qe. complir con las ordenes superiores, soy ciudadano y mi deber como tal es sujetarme a las disposiciones del poder; yo he protestado y nuevamente protesto estar obidiente a las leyes de la nacion Mejicana y a las autoridades qe. deban conocer en mis acsiones, y N. E. no debe dudar qe. sere fiel observador de las ordenes del gob'o qe. V. E. disempeia, pr. que me convenso qe. ellas siran la refracsion del espejo de la ley. Por lo d'ho V. E. conosera qe. mi union al S'or G'ral Micheltorena, fue partiende de un principio de justicia pues ni conocia ni entendra otras razones qe. la vos del gobernante qe. me ordenaba. En toda mi marcha no tube mas conocimiento qe. los mismos informes del gefe de la division a cuya disposicion venia y ellos fueron reducidos a qe. hera una revolucion de un pequeno numero de sediciosas qe. solo aspiraban contra los Mejicanos y astrangeros de toda clase, qe. en esta cuidad tenia fuerzas en gran numero qe. se non devian niur, y en fin se procuro ocular la justicia y alarma general de todos los Pueblos del departamento contra el batallon compuesto verdaderamente de soldados viciosos y criminales. Aqui en este lugar qe. es en donde he tenido mas demora, es en donde he venido a conoser mis enganos, y si tube gusto y entusiaswo en reunirme a d'ha fuerza hoy me arrepiento de mi cudalidad. The United States vs. Sutter. 227 Come tambien me he impuesto qe. se haci alguna observacion de la fortaliza qe. a mi costo he lerantado el en punto de mi radicacioii, tengo el honor de poner en conocimiento de W. E. las razones qe. tube pa. ello, y calificadas p. V. E. lo alejaran de toda sospecha. Mi establicimiento esta cituado entre los rios S'n Joaquin y el Sacramento casi a Orillas de este, es el lugar qe. hace frontera a los Tridios mato bules qe. son lys qe. atacan las caballadas de los ranchos; y es 304 el camino de transito pa. todas los viageros del interior,^stas razones y no menos la larga distancia de mi posecion a ls demas poblaciones me sujiria la idea necesariade hacer mi fuerte, y para verificardo tube permiso del gob'o del pais. Si e'mo S'or el lugar en qe. esto cituado y las continuas amenosos qe. he sufrido y aun sufro sin referir los a contesimientos pr. que deseo mas bien qe. V. E. tenga por otra, conosimiente de los hechos de los Senores Vallejos, hacen una posicion violenta a la quietud y ocupacion en el formento de mis terrenos, y con tal motivo haciendole asi presente al S'or G'ral entences Gob'r D. Man'l Micheltorena, este S'or me olivio con su orden espedida al efecto y que tengo ee mi poder. He manifestado a V. E. las razones de haber fortalizado mi establecimiento, mas tambien dire a V. E. que la espresada fortaliza la puse a disposicion del gob'o, afreciendole que podra ocuparla con un destacamento militar hasta de trienta horbres que heran los qe. podian descansadamente estor en su occupacion, y bayo las ordenes de un official de su confianza. Mi objato unico E m S'or es cubur esa frontera y librado de la estorcion; hoy repeto a V. E. el mismo ofrecimiento asegurandole qe. es precisa pa. evitar los males qe. pueden sobrevenir. Tambien es el punto pa. donde transitan porcion de Cazadores estrangeros y aun qe. y o siempre he avisado al gob'o de tal introducion no puedo meterme en resolver lo qe. al propio gob'o trea, ordenas por todo lo espuesto. A. N. E. Pido y suplico q. se me permita retirarme a mi d'ho establecimiento en razon de los graves perjuicios qe. me resultan en una separacion tan dilatada qe. no espero, y qe. solo la obediencia al gab'o me hiso sufrir; juro lo necesario y espero qe. V. E. me permitiva este papel comun pr. falta de sellado. J. A. SUTTER. En Los Angeles, a 26 de Feb'o de 1845. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my office, and in my charge and custody, a portion of the archives of the former Spanish and Mexican territory or department of Upper California, by vii305 tue of the power vested in me by law, do hereby certify th it the four preceding and hereunto annexed pages of tracing paper, numbered from one to four inclusive, exhibit a true and accurate copy of a document on file and forming part of the archives o' said office. 228 The United States vs. Satter. In testimony whereof, I have hereunto signed my name officially L. s.] and caused my seal of office to be fixed, at the city of San Francisco, this twenty-second day of April, 1856. JOHN C. HAYS. Ur S. Surveyor General for Caltfornia. PFrom the 2d section of the act of Congress providing for the survey of jp&lic lands in California, and for other purposes, approved March 83 1855. The Secretary of the Interior is hereby authorized to cause an official seal to be prepared for the office of the said surveyor general, (California,) and any copy or extract from the plats, field-notes, and other records and documents on file in his office, when attested as such by the said seal and the signature of the surveyor general, shall, in all judicial matters, have the same force and effect as the original. Endorsed: Filed July 15, 1856. JOHN A. MONROE. Clerk, Pr. W, I1. CHEVERS, Deputy Cerk. Translation of G. To his Excellency the Governor of this Department: I, Juan Augusto Sutter, a naturalized Mexican citizen, and owner of the establishment called Nueva Helvetia, on the margin of the Sacramento river, in the northern frontier of this California, with all due respect and dignity, appear before your excellency and represent, that supposing my detention in this city to be on account of my having joined General Don Manuel Micheltorena with an armed force, I will be allowed an avowal of my reasons thereof: Being at my said establishment. I received verbal orders from the aforesaid gen306 eral to enlist all the force that I could prepare, promising to furnish me with the necessary arms, for the purpose of defending the rights of the government, which I was informed were threatened. As by the auxiliary regulation I was then appointed by his excellency, the governor, captain of one of the companies which lie was organizing, I was compelled to obey the order co:mmunicateed to me, and which the general repeated, as shown by tlhe original note which I placed in the hands of your excellency. It cannot be doubted that in said movement I did more than comply with superior orders. I am a citizen, and it is my duty as such to submit to the disposition of the authorities. I have protested, and low again protest, to be obedient to the laws of the Mexican nation. and to the authorities who should take cognizance of my acts, and your excellency should not doubt that I will be a faithful observer of the orders of the government over which your excellency presides, because I am persuaded that they will be the reflection of the mirror of the law. From the foregoing, your excellency will see that my joining of The United States vs. Sutter. 229 General Micheltorena was based upon a principle of justice, since I neither knew nor acknowledged any other reason than the voice of the governor who ordered me. During all of my march I had no other information than the reports of the commander of the division under whose command I came, which were to the effect that it was a revolution of a very few seditious persons, who were only conspiring against the Mexicans and foreigners of every class; that in this city he had a large force that would join us; and, finally, he endeavored to conceal the truth, (justicia,) and general alarm of the pueblos of the department against the battalion composed solely of vicious soldiers and criminals. Here in this city, where I have been longest detained, is where I have learned the deceptions practised upon me, and although I joined the said forces with pleasure and enthusiasm, I now repent my credulity. As I am informed, also, that remarks are made relative to the fort which, at my own cost, I have constructed on the place of my residence, I have the honor to lay before your excellency the 307 reasons which I had for doing so, an examination of which will remove all suspicion from your excellency. My establishment is situated between the San Joaquin and Sacramento rivers, nearly on the bank of the latter; it is the point which forms the frontier of the Masebulos Indians, who are those that attack the horses of the ranchos, and it is the road of transit for all the voyagers from the interior; these reasons, and not less the great distance from my place to the other settlements, suggested to me the propriety of building my fort, and in order to do so I obtained a license from the government of the country. The location of my place, and the continued threats which I suffered, and still suffer, (without particularizing, because I rather prefer that you may be informed of the conduct of the Messrs. Vallejo by others,) from a powerful opposition to the quietude and occupation in the improvements of my lands, and having for that reason laid the matter before the general, the governor Don Manuel Micheltorena, he relieved me by an order issued for that purpose, and which I have in my possession. I have explained to your excellency my reasons for fortifying my establishment, and I will now state also to your excellency that I placed the said fort at the disposition of the government, permitting it to be occupied as a military post with as many as thirty men, which were as many as I could conveniently be accommodated therein, and under the command of an officer of its confidence. My only object is to protect that frontier and rid it of extortion. I now renew to your excellency the same offer, assuring you that it is necessary for the prevention of evils that may occur. It is also on the route travelled by a party of foreign trappers; and although I have always notified the government of such introduction, I cannot take upon me to determine what it belongs to the government itself to decide. In view of all the foregoing, I pray your excellency to permit me to return to my establishment, in consideration of the serious injuries that will result to me by so long and unexpected absence, and which only the obedience to the government I would have suffered. 230 The United States vs. Sutter. 308 I swear the necessary, and hope your excellency will allow me this common paper, there being none sealed. (Signed) J. A. SUTTER. Los Angeles, Feb'y 26th, 1845. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk. Pr. W. H. CHEVERS, Deputy C' k. * * - * * * * - * 1.-Letter from Micheltorena to J. A. Sutter. Seior Dn. Augusto Sutter, encargado de Justicia representarle del Gobierno en las fronteras del rio del Sacramento. Siendo muy conveniente que el gobierno conserve en las fronteras del departam'to toda la vigilencia y seguridades necesarios tanto pa. impedir las continuas incursiones de las Indios salvajio sobre los rancherias indefensas, como para impedir al mismo tiempo las rovas y deinos que causan las difirentes partidas de gente abanturan de los Estados Unidos como lo que acarade a sultar y roviar a varios establicim'tos de miciones ranchos de particularas al extremo de haberce llarado tres mil bestias caballores de varios especies y no contando el gob'o con sufficiente fuersa pa. cubrir la immensa linea despoblada que divide el terreno de la Republica Mexicana desde el grado 42, norte por donde al mismo tiempo se introducen companios de casadores del establicim'to de la columbia haciendo la pesca del castor en nuestras rios llevandose por este hecho la riquesa del pais y siendo V. un individuo que se halla establicido y en posesion de un terreno el mas inmediata a la linea del norte conceduaba como un ciudadano de la Republica he devido deriger a V. la presente nota por la que pueda autorisida pr. el gobierno para representar en ese funto en todos casas las derechas del pais revestiendolo asi mismo con el caracter de antoridad politica encargado de justicia en su establecim'to de la nueva elvecia y sus contomos pa. qe. pueda puseguir arrestas a las ladrones y gente puniciosa que bagare por aquellos puntos conectiendo los meles enunciadas, las companios procedentes de la columbia no estan ni han estado autorisadas pr. el gob'no. pa pasar la linea y pesca en 309 nuestras rios y sera muy conveniente si alguna de ellas se precentace pr. aquellos rios los notifique V. comedemunte de retirarse, y berifiquera pesca a los terrenos de la nacion dando cuenta al gob'no de cuantas occurancias succeduron en este respecto. En todas los cosos en que concidere necesarios ataces con las armas alguna nacion de las tribuas salvages pa. hacenlas reducer al orden, devera obtener el primero del gobierno pero sin esto requisito puede per segun a los ladrones en cuachillas y a los que meresan pena corporal los remitira al gobierno con las pruevas de su dilito obnerdo en consonancia con las leyes del pais. De cualesquiera dificultarles o ccnrencias qu se le ofrecire pa. la concevacion del orden en aquella frontera dirigira al gob'no las consultas que tenga la bien en concepto de que The United States vs. Sutter. 231 la comand'a militar de Sonoma ejerce jurisdiccion hasta la linea quo forman los Rios de San Joaquin el Sacramento al arte. Todo lo que dego a V. para su inteligencia esperamos que de esta sobre vigilancia que el gobierno le encarga se conseguna en parte los males que esta esprenconbando el pais cuyas leyes y derechos hace como sus propriedades esta V. obligado a defender y concervar pr. los juramentos que lo han legado con la patria. Dios, &c. Monterey, lo de Septiembre, de 1840. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my office and in my charge and custody a portion of the archives of the former Spanish and Mexican territory or department of Upper California, by virtue of the power vested in me by law, do hereby certify that the three preceding and hereunto annexed pages of tracing paper, numbered from one to three inclusive, exhibit a true and accurate extract from an unbound book in the said archieves, entitled "Libro Bonador de la Correspondencia de Oficio, dirijida a los Prefectos, Sub-prefectos y Juezes de paz del Departamente Correspondiente al anio de 1840." 310 In testimony whereof, I have hereunto signed my name officially, and caused my seal of office to be affixed, at the city [SEAL.] of San Francisco, this 26th day of April, 1856. JOHN C. HAYS, U. S. Surveyor General for California. Extract from the 2d section of the act of Congress "providing for the survey of public lands in California, and for other purposes," approved March 3d, 1855. The Secretary of the Interior is hereby authorized to cause an official seal to be prepared for the office of the said surveyor general, (California,) and any copy or extract from the plats, field-notes, and other records and documents on file in his office, when attested as such by the said seal and the signature of the surveyor general, shall, in all judicial matters, have the same force and effect as the original. Endorsed: Filed July 15, 1856. JOHN A. MONROE. Clerk, Pr. W. H. CHEVERS, Deputy Clerk. Translation of 1. Don Augusto Sutter, commissioner of justice representing the government on the frontiers of the Sacramento river. It being proper that the government preserve every necessary vigilance and protection on the frontiers of the department, to prevent the continual incursions of the savage Indians upon the unprotected 232 Thie United States vs. Sutter. villages, as well as to prevent at the same time the robberies and damages committed by different parties of adventurers from the United States, such as have just attacked and robbed several mission establishments and ranches of individuals, to the extremity of having carried off three thousand horses of various classes, and the government not having a sufficiency of troops to cover the immense unsettled line which divides the territory of the Mexican republic 311 from the 42d deg. of north latitude, along which, at the same time, companies of trappers from the Columbian establishments are entering and catching the beaver in our rivers, thereby appropriating to themselves the wealth of the country, and you being an individual established upon and in possession of a tract of land nearest the northern boundary line, and esteemed a citizen of the republic, I have thought proper to address you this note, whereby you are authorized by the government to represent all the rights of the country in that section, investing you likewise with the character of a political authority, commissioner of justice at your establishment of New Helvetia and adjoining country, in order that you may be able to seize and arrest the robbers and idle people who may be loafing about those points committing the crimes above enumerated. The companies from Columbia are not now nor have they been authorized by the government to cross the line and trap in our rivers, and it would be very proper that if any of them should appear about those rivers, you respectfully notify them to leave and to cease trapping upon the lands of the nation, giving information to the government of all the occurrences that may happen with respect to this matter. Whenever you may consider it necessary to attack any nation of the savage tribes with arms to reduce them to order, you shall obtain permission from the government, but without this prerequisite you may pursue bands of robbers, and those who deserve corporeal punishment, and turn them over to the government with the proofs of their guilt, proceeding in conformity with the laws of the country. Upon all difficulties or occurrences that may present themselves to you in the preservation of order in that frontier, you may ask such advice of the government as you may deem best, inasmuch as the military commander of Sonoma exercises jurisdiction to the line formed by the San Joaquin and Sacramento rivers on the north. All of which I communicate to you for your information, and we hope that through the superintendence intrusted to you by the government the evils which are experienced by the country whose laws, rights, and property you are bound by the oaths that bind you 312 to the country to defend and protect, may be corrected. God, &c. Monterey, September 1st, 1840. Endorsed: Filed July 15th, 1856. JOHN A. MONROE, Clerk, Per W. H. CHEVERS, Deputy Clerk* The United States vs. Sutter. 233 K.-Letter from Gen'l Vallejo to Gov. Alvarado. Comandancia general de la Alta California. 14 de Ag'o, 841, Ex'MO S'OR: Refiriendome a la nota oficial inconse contesto. testa, qe. con f'ha 27 del ulto. dirig6 a V. E. tengo el honor de participarle qe. D. Pedro Kostromitenoff, ag'te del gobernador de Sytka, va a esa capital a conferenciad con V. E. acerca de la des ocupacion de Ross. D'ho sor no satisfecho con los motivos qe. alique pa. no entrar en trato pr. las casas de Ross y sus dependencias, seindo el principnl de esos motivos, el pertenecer de otro esas fabricas al gob'no p. haberse construido en terrenos nacionales y con materiales de los mismos terrenos. Objecte ademas qe. sin una orden espresa de la superioridad, no podra hacer ninguna inovacion, sobre ese rospecto, pues, seria traspasar las layes y mis facultades, instando spre. sobre el atro incontestable que el gob'no tenia a las precitades fabricas. No contento, repito el S'or Kostromitenoff, con esa advertencia una, determino ir a presencia de V. E. a aclarar las dudas qe. conserva acerca del otro oligalo a favor del spm'o gob'no. Ha sabido D. Pedro P. conducto irregular qe. ecsista en poder de V. E. la orden tapr. relativa a lo mismo y va a cercurarse de ella. No juzgo necesario comunicar a V. E. mis refleciones acuca de ese intererante asunto convencedo de gr. V. E. esta tan persuadido como yo de qe. la nacion Mejicana no podria sin menascabo de su diquidad comprarlo qe. le pretenece incuertionalblemente. Rietero a V. E. las protestas de mi consideracion y aprecio. Dios y Libertad. Sonoma, Ag'to 11, 1841. M'NO G. VALLEJO. Ex'mo S'or gobernador del departam'to de Californias D. JUAN B'TA ALVARADO. 13 OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, John C. Hays, surveyor general of the United States for the State of California, and as such having in my office and in my charge and custody a portion of the archives of the former Spanish and Mexican territory or department of Upper California, by virtue of the power vested in me by law, do hereby certify that the three preceding and hereunto annexed pages of tracing paper, numbered from one to three inclusive, exhibit a true and accurate copy of a communication from M. G. Vallejo to Juan B. Alvarado, governor of California, dated Sonoma, August 11th, 1841, on file in said archives. In testimony whereof, I have hereunto signed my name officially and caused my seal of office to be affixed, at the city of San Francisco, this 26th day of April, 1856. JOHN C. HAYS, U. S. Surveyor General for Cailiornia. 234 Thle United States vs. Sutter. Extract from the 2d section of the act of Congrcss providing for the survey of public lands in California, and for other purposes, approved March 3d, 1855. The Secretary of the Interior is hereby authorized to cause an official seal to be prepared for the office of the surveyor general, (California,) and any copy or extract from the plats, field-notes, and other records and documents on file in his office, when attested as such by the said seal and the signature of the surveyor general, shall, in all judicial matters, have the same force and effect as the original. Endorsed: Filed July 15, 1846. JOHN A. MONROE, Clerk, Pr. W. H. CHEVERS, Deputy Clerk. Translation of K. General commanding of Upper California: 314 MOST EXCELLENT SIR: After stating that my official communication, addressed to you on the 25th ulto., remains unanswered, I have the honor, to inform you that Don Pedro Kostromitenoff, agent of the governor of Sitka, is going to the capital to confer with your excellency relative to the evacuation of Ross. The said agent not being satisfied with the reasons which I urged for not entering into a negotiation for the houses of Ross, and their appurtenances-the principal of these reasons being that these buildings, by right belong to the government for having been constructed on the national domain, and of materials from the same-I also alleged, that without an express order from the government I could make no innovation upon that matter, because it would be transcending the laws and my authority, always dwelling upon the incontestable right which the government had to the aforesaid buildings. Senor Kostromitenoff, I repeat, not being content with this remark of mine, determined to go to appear before your excellency to settle the doubts which he entertains relative to the alleged rights in favor of the supreme government. Don Pedro has learned from me, an irregular source, that your excellency had in your possession the supreme order relative to the same, and goes to acquaint himself therewith. I do not deem it necessary to communicate to your excellency my views upon this important subject, satisfied that your excellency is as well convinced as I am that the Mexican nation could not, without a derogation of her dignity, purchase that which unquestionably belongs to her. I renew to you the assurances of my consideration and esteem. God and Liberty. Sonoma, August 11th, 1841. (Signed) WM. G. VALLEJO. To his Excellency JUAN B. ALVARADO, Gov. of the Dep't ofthe Californias. Endorsed: Filed July 15, 1856. JOHN A. MONROE, Clerk. Pr. W. H. CHEVERS, Deputy Clerk. The United States vs. Sutter. 235 315 Brief by John H. McKune on the part of the government. THE UNITED STATES vs. No. 319. JOHN A. SUTTER. In the U. S. dist. court for the N. D. California.-Brief for the U. S. 1. The petitioner claims 33 leagues of land under two alleged grants, one dated June 18th, 1841, for 11 leagues of land; the other bearing date Feb'y 5th, 1845, for 22 leagues of the "sobrante" or surplus within the same rancho; each grant reserving a surplus for the benefit of the nation.-(See translation of first grant, page 120 of transcript; and of 2d grant, page 122.) 2. The grant of 11 leagues was not issued in the usual form, or according to the established practice of the Mexican government, in several respects. 1st. The petition of Sutter was not referred by the governor to any local authority or to his secretary. 2d. No information (informe) was taken. And 3d. The grant was not in the usual form to the grantee and his family, but was made to the grantee for himself and twelve other families. 3. Capt. Sutter settled in the district of the Sacramento in the latter part of 1839, or the fore part of 1840. He established two settlements before he presented his petition to the governor, (see his petition, page 12 of transcript,) one at a point now occupied by the city of Sacramento; the other at Hock Farm, the home of the claimant, on the west side of the Feather river, and some 20 miles from the American river, in a right line. 4. On the 15th of June, 1841, the claimant presented to the governor a petition setting out the advantages attained and to be attained by the establishment of a settlement called "La Nueva Helvetia," situated towards the north, according to the land represented in the diseio, not comprising the land which is periodically overflowed in winter, and asking favorable action thereon. 5. On the 18th of June, 1841, the governor issues a grant reciting material parts of the petition. The granting words as translated are: I have granted to the said Senor Don Augustus Sutter, by these 316 present letters, for him and his settlers, the said land of New Helvetia, subject to the approval, &c. By the 3d condition the land is of the extent of 11 leagues, as exhibited in the sketch, without including the land overflowed by the swelling currents of the river. It is bounded on the north by the Three Summits and the 390 41' 45" north latitude; on the east by the margins (margenes) of Feather river; on the south by parallel 38~ 49' 32"; and on the west by the Sacramento. 6. It may be said that the grant was made in conformity with the petition, and that the petitioner could just as easily have obtained a grant in the usual form for the benefit of himself and family as to have taken the concession to himself and colonists. But this does not 236 The United States vs. Sutter. appear to be sustained by the facts. His petition to the governor was no doubt drawn at the office of the governor after consultation with him, and to meet his views. The simple fact that the concession was not taken to Capt. Sutter for his own use shows that the grantor had some will in the matter, and in accordance with the determination of the governor the claimant concluded to take his title. 7. This brings us to the examination of the nature and character of the concession. In the grant itself it is expressed that the grant is made in accordance with the law of 18th August, 1824, and the ordinance of the 21st November, 1828, and it will be necessary to examine that law and that ordinance in the progress of the argument of this case to ascertain what rights passed under them the claimant. 8. Article 14 of the law of 1824 reads as follows: "This law guaranties the contracts which'empresarios' may make with the families which they may bring out at their expense, provided they be not contrary to law." In the executive regulations of 1828, providing the manner of carrying the law into effect, it is directed, among other things, that the political chiefs of the territories shall grant vacant lands to empresarios for the purpose of cultivating and 317 inhabiting them. The grants made to empresarios for them to colonize with many families shall not be held to be definitively valid until the approval of the supreme government is obtained.(See Rockwell's Spanish and Mexican Laws, pages 462, 463, 464.) 9. The claimant's concession recites that Don Augustus Sutter has solicited for his own personal benefit, and that of twelve families, eleven leagues of land, &c. The words of grant are: I have granted to the said Sutter, for him and his settlers; clearly indicating that the concession was made for a colony, and not for the personal benefit of the claimant alone, making the grantee a contractor, and giving him lands for his colonists jointly with himself. This constitutes him an empresario, and his title-papers are to be construed into a contract tripartite, the government stipulating to furnish the land, the grantee to furnish the colonists, and the colonists to settle on the land, so as to comply with the spirit and meaning of the colonization law. 10. This view of the matter is further strengthened by the words in the grant — subject to the approval or disapproval of the superior government." If it had been intended as a private grant, it would have been sufficient to obtain the approval of the departmental assembly. 11. To ascertain whether the claimant has complied with the spirit and meaning of the law, and with the terms of his contract, it will be necessary to recur to the reasons which induced the government of Mexico to make the grant. Manuel Jimeno, who has been secretary under Alvarado and Micheltorena, in a report made to the governor on a petition of Wm. Gulnack for the land claimed by C. M. Weber, in San Joaquin county, gives the true reason for making such grants. He says: "If he (Gulnack) petitions for himself alone the extent (eleven leagues) is very great, and after his example others will peti, The United States vs. Sutter. 237 tion, and within a short time there will be no land left for others who may wish to settle on the river San Joaquin." Accordingly the grant was issued to Gulnack, for himself and twelve other 318 families, (the least number allowed for a colony.) 12. The same reasons operated on the mind of the governor to induce him in 1841 to people the northern frontier, not with one man on a farm of eleven leagues, but with twelve families. Americans can well understand the policy which will apportion the land of new countries among a large number of persons rather than extend the right of property in one man over enough land for a whole country. There should have been, then, in accordance with the evident intent of the concession, twelve families settled on the land embraced within the grant to comply with the terms thereof. 13. There is no time fixed in the instrument within which the settlement must have been made; and a fair construction of the matter would be to give the contractor a reasonable time to comply with his agreement, and within that reasonable time to comply with his agreement, and within that reasonable time the settlement must have been made on the right lapsed, on the same principle that a house must have been built within the time named in the law, or the grant would forfeited. 14. This mode of settlement was adopted by Spain in the early settlement of Spanish America. An empresario was constituted sometimes with the title of adalantado, and authorized under the laws to colonize certain districts. Cases of this kind may be found in Ballcroft's History of the United States, vol. 1, in the early settlemenits of Florida. And as a first and leading case under the Mexican colonization law of August 18, 1824. the settlement of Stephen T. Austin in Texas deserves particular notice as exhibiting the true policy of Mexico in colonizing her vacant lands. The empresario by that contract took five sitios of grazing land, and five labors, (each 1,000 varas square,) one-half of which shall be without the faculties of irrigation, for eachl one hundred families settled. Eachl settler was to have a specific tract of land. The title to the land was conveyed to the settler by the empresario jointly with a commissioner appointed by the government; and the empresario was not in any manneMr, or for aiy purpose, considered as the legal owner of 319 the soil. The government controlled the settlement by presc'ibing rules to the empresario, and generally by directing how and to whom the lands should be conveyed.-(See 1st White's Recopil.acion, vol. 1, from page 571 to 622.) 15. Capt. Sutter in 18 9 established himself near the south bank of the American fork, and also about that time on the Pacific coast,:at the Russian settlemnent of Ross. It is not proved that at that time lie had a title to either place. After exploring the country in 1841, lie applied to Gov. Alvarado for a grant. Suiting himself to the views tof the government, he applied for and received a concession in the nature (of a contract to settle twelve families, and we are now prepared to examine the question: What rights passed to the petitioner?'A'his must be done by a fair construction of the instrument itself; and 238 The United States vs. Sutter. as the document is silent as to the practice necessary in conveying title to the settlers, this court is now called upon to construe it so as to effect the intention of the parties. There is no proof of confirmation by the departmental assembly, or by the supreme government; therefore the concession, whatever may have been intended, cannot be held "to be definitively valid." It is imperfect, inchoate, and incomplete, and the application to this court is, that a perfect, choate, and complete title may be delivered to the petitioner by government. Now, if the petitioner held the land in trust for himself and twelve other families, this court cannot, according to any principle of equity known in the civil or common law, give to him a complete title discharged of the trust. The cestui que trust may enforce his rights against a trustee, but courts never, without some fault in the cestui que trust, discharge the trustee from his liability, but will compel the strict performance of the trust. 16. The instrument upon which the claim is predicated may be regarded as a nascent contract. The government undertook to furnish eleven leagues of land, and the claimant undertook to furnish twelve families to receive the title. The number is specific, not twelve or more. The concession is to him (the petitioner) and that number of families, which families must be furnished, and the 320 portion of the eleven leagues which each was in equity entitled to have been conveyed to the head of the family entitled to it. No other legitimate disposition could be made of the matter. Where there is a trustee there must be a cestui que trust, either in esse or in prospect, and if no other person ever existed to receive the title, when such a state of things resulted from the neglect or malfeasance of the trustee, it would be a strange law which would give to him the property he held for another. An attempt is made to prove that twelve families and more were established on the land in due time, and for this purpose a variety of evidence is offered to show the number of residents who have from time to time occupied certain land land under the petitioner, none of which appears to prove the necessary facts. The court will notice that it is not inserted in the concession, by way of condition, that twelve families shall be settled on the land within a certain time; the grant is to him and twelve families. Now, it may well be doubted whether the concession itself is not void for want of persons to take the title. But, if the petitioner could lawfully hold for the benefit of the twelve families, he could not hold for any other purpose, because his title papers clearly expressed that intention. We will now ask the counsel to point out the twelve persons entitled to receive their proper share of the land claimed. It is true there are large settlements on lands claimed by Sutter; but which of the settlers were adopted as the twelve? When and how were they selected? How did Sutter apportion the land among them? One of the first principles of equity prescribes that he who seeks equity must do equity. By what rule in equity will the claimant in this case be allowed to appropriate to himself for his own use the lands granted for the benefit of others? and yet this is the demand-the relief asked for The United States vs. Sutter. 239 17. If I am right in the principle governing this case, the petitioner would be compelled to show that he complied with the law, and that each of the twelve families was colonized on the land within 321 the spirit and meaning of the colonization law of 1824; one of the prime objects of that law was to colonize the vacant lands, giving the settlers such an interest in the soil as would attach them permanently to the institutions of the country. They could then be depended on in time of peace to increase the productive wealth of the country, and in war they would have their property to defend, and would be identified with the interests of the country. The petitioner would fuather be compelled to give the names of those entitled with him to receive the land, otherwise no proper decree could be entered. A decree of confirmation to Sutter alone would be contrary to the spirit and meaning of the concession, and a decree to him and twelve others, without meaning them, would be void for want of certainty. The evidence does not disclose any twelve of the persons named in the proof as so entitled; consequently the claimant is not entitled to confirmation of his claim. 17-. There is no distinction on the point here involved between the laws of Coahuila and Texas and those affecting land titles in California. The law of 1824 remained, and still remains unchanged; the methods of carrying the law into effect were various, but in all Mexican States and territories the lands passed under the law of 1824 or not at all. There have been numerous decisions in Texas illustrating that enactment, so far as it applied to empresario grants, which will be referred to in this brief. 18. On the hypothesis that the instrument may be considered a concession to J. A. Sutter alone, has he shown himself entitled to a confirmation.' It may be urged that the opinion of the Supreme Court in the Fremont case decides that the non-performance of conditions will not prevent a confirmation; that the claimant is still entitled, though he never settled himself or the families mentioned on the land, or performed any other of the conditions annexed. 19. If the concession can be regarded as single, and conveys to the claimant alone a title to the land, the statement that the con322 cession is to Sutter and twelve families must be regarded as a condition annexed, the non-performance of which must be ( xcused, or it will defeat the grant; and the Fremont case does not decide the contrary. It is respectfully submitted that the point really decided in that case was simply that the facts proved showed an excuse for not performing the condition, and that that excuse avoided a forfeiture. 20. There is no testimony that Sutter ever settled one family on the land described in the grant. He made his own home inside of those boundaries, and he still resides there, having no land elsewhere; but he never settled twelve families on the land, and he now offers no excuse therefor, but his attorneys set up that his land lies on the east of the Sacramento river, extending many miles south of the mouth of Feather river, and there were many families settled on that territory; the location, I contend, was by no just construction of the 240 The United States vs. Sutter. evidence in the case within the limits of the land granted, and this settlement could, therefore, be of no avail in a performance of the condition of this grant. 21. This grant is introduced as the evidence of title. To make a conveyance words of grant must be used, and when the words used in the instrument are clear and unequivocal they must govern in its construction. In certain cases of ambiguity oral testimony may be introduced to explain, but never to vary, a written instrument, or supply a defect.-(2d Phillips's Evidence, 344, 345, 350.) Pateriche vs. Porolet, 2d Atkyns, 382; Lord Cheney's case, 2d Philips's Evidence, 333; note and cases cited page 350 same volume. The rule is too well settled to be shaken; and it is so well founded in reason that it will scarcely be overruled by any respectable tribunal. Now apply this rule to the facts of this case, and it will be found that near nine-tenths of all the matter produced and taken in this case, and offered in evidence, is entirelyirrelevant. There is no ambiguity in the words of description contained in the concession. The 323 grant was made after an accurate exploration of the country. There is no pretence that the location of the different rivers was not known by the governor when he made the grant. The map (if one was shown the governor) exhibited the locality described ill the grant. Captain Sutter at that time had established himself in the frontier; a part of his effects were at Bodega, a part at the American fork, and his establishment extended as far as the Buttes. He asked for eleven leagues in his establishment; that amount was all he could hold under the law. The governor acceded to his request' eleven leagues were granted to him and his colonists. Those elevei leagues were to be taken within certain lines of demarcatipn set down ill the concession; those lines embrace near four hundred square miles of land; the surplus was by the terms of the grant to be reserved to tile nation, and the law provided the means of separating the land granted from the public domain, to wit, by judicial survey. Till that act was accomplished there was no segregation; the eleven leagues were not separated from the public domain, and consequently reniainea of that domain, and passed to the government of the United States. 22. The claim of Capt. Sutter to land not described in his grant is founded on, 1st, the plural form of the words in the grant forming the eastern boundary, las mnargines;" 2d, upon a copy of a map alleged to ihave been before the governor when he made the grant, and referred to therein by way of description; and 3d, upon the name of New Helvetia, which it is alleged defines and varies the boundaries. 23. The language of the grant is on the east by the marEins (las margines) of Feather river. Now it must strike any one at first vieV^ that an eastern boundary would require all the land granted to lie t'0 vward the west. The Feather river could not be an eastern boundary of a tract of land lying oil both sides of that river. The case of Melvor vs. Wharton is cited by the commissioner in giving his opinion, as authority to show that the Feather river, though an eastern boundary, is not exclusive of that river, but instead of The United States vs. Sutter. 241 proving the proposition it rather strengthens the converse. 324 A plat was referred to in a patent, and courses and distances were also set down in the grant. The plat and the courses and distances disagreed; the land called for was on Crow river; non constat, it was not on both sides of it. The plat showed clearly the land was on both sides, and the question decided was the familiar one that courses and distances were governed by natural objects, and those natural objects could be as well shown by a diagram made part of the grant as by any words in the patent. The general rule that parol testimony will not be introduced to vary an instrument in writing is without exception. 24. But it is said the word margins (margines) would not be satisfied without taking land on both sides of the river. This appears to me a very strained construction of that word. In the first place, that view of the meaning of the word is inconsistent with the words, on the east by, immediately preceding it. If the word margins had been used without other words explaining its meaning, some excuse might be urged for the construction given by Judge Thompson, placing the land on both sides. If the land is to be taken on both sides, how much niust be surveyed on one and how much on the other, and is there any restriction as to boundary on the east? Cannot all the land as well be taken on the east side of the river, except enough to include a mere margin on the west side of the river? At the commencemrent thereof, the grant recites that the claimant has petitioned, &c., for 11 leagues of land on the margins (translated borders original margines) on the river Sacramento. Here, then, in the very instrument itself is an explanation of the meaning attached to that term in the grant. It is not contended that Sutter ever petitioned for land on the west side of the Sacramento, and certainly he claims none on that side. The recital is made with a view to obtain the grant, and the plural form of the word is used. Now, why did not the decree extend across and include land on the west side of the Sacramento? The language of the grant is, I have granted the said land, (i. e., the land petitioned for.) I answer, because there is no such power in the word margines as contended. But to make the matter still more 325 palpable, we have obtained documents from the surveyor general's office, showing how both Sutter and the government understood that term, and showing that the word margines was uniformly used even where the land asked for and granted was clearly located on one side only of the river named, and which constituted natural boundary. These documents are marked X Y Z No. 5, X Y Z No. 6. The maps filed in these papers show the exact locality. There is no mistaking the fact that the land lies on one side only of the river, and yet the word margins, in the plural, is used to indicate that bound. Such seems to be the uniform use of the term in Mexican grants. 25. To pursue this matter further. If the margins of Feather river are a boundary on the east, how can those same margins become a bound further south than the mouth of that river? The decree, as it now stands, is an anomaly. Both sides of Feather river are an east[REc. CCLVIII, D. T. 1862.] —16 242 f77ie United States vs. Sutter, ern boundary, and that, too, some 12 or 15 miles further south than the river extends-upon what principle we are not enlightened. We submit that a decree should be, 1st, certain; 2d, not inconsistent with itself; and, 3d, in harmony with the pleadings and evidence resulting in the decree, and in this case the decree violates each of those propositions. 26. The claimant, at the time he filed his petition before the land commission, filed also a copy of map referred to in the petition as marked A, but accidently marked B, and referred to throughout the case as Exhibit B. This copy is claimed to be a true exhibit of one before the governor when he made the grant, and the one referred to therein, according to which the grant was made. Now, there is not only no evidence to show that the copy exhibited is a true one, but there is positive evidence to the contrary. In the early part of 1841 Capt. Sutter, with a view to present his petition to the governor for a grant, employed J. J. Vioget to explore the country and make him a diseho. He accordingly proceeded, and in the fore part of that year completed two maps, which he delivered to petitioner.-(See depositions of Vioget, pages 21, 49, and 102 of transcript.) There is no evidence in the case tending to prove 326 that either of those maps was presented to the governor, except the fact that the maps were made about and just before the time. The diseiio in the ordinary course of business, goes with the expediente and remains in the archives, and Alvarado swears (answer to question 5, page 98) that he delivered the one used by him to the secretary. There appears to have been no search for the map so used in the archives, and it does not appear that that map is not still in the office of the surveyor general. The general rule of law is, that the claimant must prove the loss of the original before he will be let in to prove the contents. It is said by the commissioner that the map, or a certified copy of it, was annexed to the grant and de. livered to the grantee. There is no evidence of that fact except that a map was seen in 1849 and'50 by John S. Fowler, annexed to the grant. This certainly does not prove that it was thus delivered to the grantee. On the contrary, Alvarado swears that the disefio was delivered to his secretary, and he does not know why it is not in the office now. It was certainly always the practice to retain the original diseno as a part of the expediente. 26~. The commissioner remarks that we know, from our observation in numerous cases which have come before us, that it was a frequent custom of the Mexican authorities to annex certified copies of the maps contained in the expediente to such grants as had reference to them. The commissioner is simply mistaken in his statement of fact It sometimes happens that a party files his grant annexed to a map, but this does not occur where there is an expediente from the archives; and there is no instance in the cases presented to the land commission where it is shown that either the original or a certified copy of the disefno was annexed to the grant by the authorities at the time of its issuance. Those cases having maps annexed to grants are generally such as are produced from the hands of interested parties, having no The United States vs. Stutter. 243 counterpart or other evidence of its issuance in the archives, or such as were procured subsequently, certified by the secretary to be 327 copies, to be used in making the judicial measurement. These last are usually attached to the recorded proceedings of the official measurement. Such a copy always has the due authentication of the secretary, which the map here mentioned does not appear to have possessed. It is true that in the translation of the twenty-two league grant, filed in the case, reference is made to the diseno as attached to the grant, but the translation is incorrect: the word is espediente, as in all other cases, and not grant. 27. How did the original of the copy produced come into the hands of claimant? Evidently by and through Vioget, and that original never was before the governor.-(See deposition of Alvarado, page 98, answer to question 7.) Here is positive proof that copy B is not a copy of the map used by the governor, and referred to in the grant. It may resemble it in its general outline, and no doubt it does, but, not being identical, is not entitled to be considered as evidence in the case. The details are not the same, and the particular portion of the copy upon which the commissioner founds his decree in fixing the southern limit is an interpolation. Alvarado, who alone testifies as to the character of the map presented to him, and referred to in the grant, gives no countenance to the idea that it had upon it a line marked 380 49' 32" south of the American river, and so absurd a proposition finds no countenance in any of the proofs. 28. The method of proving copies of maps adopted by the counsel for the claimant may be very convenient, but is not necessarily. for that reason, allowable by the rules of evidence. If it were an examined copy it would be good, perhaps, but a copy produced from the pockets of an interested party, and annexed to the deposition of a witness who saw the original on some former occasion, with his statement that he believes it a true copy, is certainly not admissible, because it is leading a witness to a point you desire him to state on oath, if admissible at all, would not be reliable. 29. Parallel 380 49' 32" is made the southern boundary of the land within which the grant must be taken. Now, to suit the views of interested parties, a line has been traced at the bottom of map B, facing page 96 of transcript, with those figures marked on it. The 328 line of latitude passing through the fort, some six miles further north, is 38~ 45' 42". The whole map is perfectly consistent with the location of this latter parallel, but inconsistent with the one further south. The map evidently was not made with parallel 38~ 49' 32" marked on it at all. The only proof of the genuineness of the copy is contained il the depositions of Vioget and John S. Fowler, the former of whom made the maps; and it is sought to fix the genuineness by showing that he made the map, and that this is a copy of the one he made; but fortunately we have an exact copy of one of the maps he made, which which copy was made by himn in 1843, and is on file in the case. This copy is found facing page 106 of transcript, and the deposition of Vioget makes that perfectly authentic, and proves that, so far as Vioget's map is of force in the case, parallel 38~ 49' 32" 244 The United States vs. Sutter. is not shown on it. Vioget says, p. 103, answer to question 5, that the line was marked, but not the numbers. It will be seen, on referring to the map, that the numbers are 380 41' 32'. We think, then, that the proof is positive, 1st, that the claimant has not produced a copy of the disenio used in making the grant, and referred to therein; and, 2d, that the line 380 49 32" has been interpolated upon a private map made by Vioget. In either instance the decree of the land commission is wrong, and should be reformed. 30. To pursue this matter further: Governor Alvarado, page 99, answer to questions 5 and 6, says he had the map before him wheiy he drew the grant, and that he set down the numbers in the grant as he saw them on the map. This proves that he did not have the original of copy B before him, as the description would be incongruous in many particulars, and to such an extent that it could not be the result of mistake; and yet it is upon this kind of testimony the claimant seeks to Vary the terms of the concession. 31. What the diseio annexed to the expediente really did show is left to conjecture in part, but it is presumed that it showed 329 the parallel 39~ 41' 45", and 380 49' 32", as Alvarado set those numbers down in the concession. It is also presumed that parallel 38" 49' 32" cut Feather river at some point at that river, is made an eastern boundary, and it could not have been such bound otherwise, but whatever may have been the contents of that map, certain it is, it is not in evidence, and the concession must stand alone, and without aid from the map in locating the land. 32. Whatever rights under that grant the claimant has were conferred upon him June 18, 1841. He received no papers before and after that time, with the exception hereafter noted, and if his title passed at all, it passed by that grant. Did the survby of Vioget confer title? That was a mere private exploration of the country with a view to present his petition. Did his survey fix lines to the grant? Certainly not, unless the governor adopted that survey, and by apt words engrafted it into his concession, and made it a part thereof. 33, But it is said there are certain dotted lines on the borders of the rivers, and as it happens to suit the purpose of the grantees of claimant to have the arable and timbered land on the margins of the rivers, they claim that confirmation should be decreed to correspond with that dotted line. Now this is evidently an after-thought. In the first deposition of Vioget he tell us how he surveyed the land. In the second, he says he surveyed what he intended for two leagues at the mouth of the American river, and the nine leagues which Sutter wanted he surveyed on both sides of the Feather river. How much he surveyed on each side he does not inform us or in what form or place. This survey was under the interested party, as he wanted it; but the making of the grant was a different thing; any claimant might still change his wishes. The purposes of government were at all events to be subserved, and the governor had the right to fix the locality and the terms of the concession. He did so. This was the termination of his (the governor's) connection with 330 the transaction. All the negotiations previously pending were The United States vs. Sutter. 245 merged in the grant. The expediente was made up and deposited in the archives as a perpetual memorial of the facts therein stated. It was an act of government. It imputed full verity, and was entitled to full faith and credit. Copies of these proceedings are here produced from the office of government. If they are of any use they must be taken as true, and they show that the claimant received his concession under terms and conditions did not in any respect while he comply with the law in making his settlement. They show moreover that this land was situated, by the positive terms of his grant, between the Sacramento and the Feather rivers, and could not be located without these boundaries. 34. The home of the grantee is at Hock Farm, within the limits described in the concession. The other settlements grew up spontaneously, without reference to proprietor's rights in the soil. The fort was established as a trading post. He afterwards extended his improvements in other directions; he established a mill at Coloma, on the same stream, and with the same view as he had in establishing himself at the fort, and with the same rights in the soil. Will not the the gentlemen conducting the claimant's case ask for what settlement and the one at Fort Ross to be confirmed to claimant, under the same right and with the same prospect of success, as to ask for lands south and east of Feather river? 35. There is no obscurity in the grant. It is a grant-of 11 leagues, with well defined limits, and admitting that the latitude was not correctly ascertained by Sutter, is there any mistake about the Three Peaks? Is there a mistake about Feather river as the eastern bound, or the Sacramento as a western? What can be more certain as a boundary than a river, and what more fixed than the eternal hills? There is no mistaking these as landmarks, and for that reason the law has wisely fixed the rule to be that such monuments shall prevail over those less fixed, and more liable to be changed or misconstructed. The commissioner in rendering his decision has reserved this 331 rule, and taken a landmark as a southern bound, which is not only sustained by no proof, but is founded on an interpolation of an absurdly erroneous degree of latitude on the map presented, but not proved as that referred to in the grant. 36. The claimant contends that, as the map filed exhibits a large scope of country, and the concession is according to the diseio, the land may be taken at any place within the exterior bounds of the map. This is certainly erroneous. According to that, the land might be taken on the west of the Sacramento, as the map exhibits a territory extending from the Coast range to the Sierra Nevada, and in latitude more than 100 miles. True it is, that the grant was according to the map; but there was and is a still further restriction in the instrument. Now, we are construe the concession with the map, whatever it was, (and we may for this purpose take the general outline of the copy filed as correct,) so that the whole shall stand. There is no difficulty in this, as they are perfectly consistent. The map shows a large scope of country, and the grant says 11 leagues are granted, according to the diseio, and then restricts the grant still further by locating the 246 The United States vs. Satter. land granted within certain other descriptions shown on the map also' 37. It is only when there is an attempt to twist and distort the rules of evidence to suit the views of interested parties that any difficulties arise; but it so happens that the parallel 38~ 49' 32" is also at the point we should look for it, to make the description perfect and congruous, (see map facing page of transcript, marked X Y Z No. 1.) This map is filed by the government, to show the exact situation of the rivers, the lines of latitude, and the quantity of land, as shown by measurement, in the government surveys. It is highly probable that, before the grant was made, the exact location of the line of latitude 380 49' 32" was ascertained, and that it was marked on the map before the governor, when he made the grant, as cutting Feather river; otherwise the description would not have been correct, and Alvarado took those figures from the map. They were not 332 marked on the Vioget map; but if they had been, with the errors constant in that map, the line would have crossed the Sacramento river about five miles south of the mouth of Feather river; so that the construction contended on the part of the government is perfectly consistent with the actual facts and with all testimony. 38. If there were any ambiguity in the language of the description, if there were any doubt as to the location of the Buttes, Feather river, or the Sacramento, parol testimony would be received to explain (not to vary) those terms. There is no necessity to consider the lines of latitude at all in locating the land, as there is a good description without, and by monuments, which must govern. A triangular piece of land may be bounded by three lines; and this is the case in hand: throw out of the case those uncertain lines, and take those parts of the description which are certain, and let them govern in the matter of description. This is in accordance with the sound policy of law, and the only certain and just rule. 39. True it is, that the intention of the grantor in making the grant must be regarded, and that the grant must be interpreted as the parties would have regarded it immediately after its execution; but how are those objects to be attained? Certainly not in any other manner than by an examination of the words of the grant, (except in ambiguities,) and those words must be taken in their plain and obvious signification; any other construction would enable me to vary a written instrument. 40. There are a few plain general rules of law, often quoted and always acted upon, which must govern this case in the location of the land within which a survey must be made: 1st. The greater effect must be given to the most certain calls.-(17 Mass., 210; 9 Cranch, 187; 7th Wharton, 7.) 2d. When there are many calls of description, some of which are certain and consistent, and others uncertain and inconsistent, the former govern the latter.-(2d Wharton, 316.)':33 I need not call the attention of the court to the fact that rivers and mountains are more certain than any artificial structure or lines, and less liable to be mistaken; but I will call your attention to the fact that all the inconsistencies in this case are the The United States vs. Sutter. 247 result of an attempt to shift the location of the land. This proposition may be properly added and applied in this case, that where the court can, and they will, construe the words of a grant so that there shall be no inconsistencies or contradictions; and by locating the land west of Feather river this is accomplished. 41. But it is said that Capt. Sutter, before he made application for a grant, named his settlement New Helvetia, and the grant is of the same name; therefore the name passes the land; and that it was the intention of the governor to grant, and Sutter to receive a grant, of his settlement on the American river. Of this there is no proof; he could not, in a single grant of 11 leagues, expect to receive 500 leagues of land, and there is no evidence they intended to divide the grant, locating it in two different places. The settlements both at Hock Farm and at the fort were commenced before the date of the grant, and continued afterwards. Alvarado swears that he wrote down in the grant what his intentions were in making the concession, and Sutter, in 1848 and'9, understood the fact to be that his grant was located west of Feather river. See the deposition of Jesse Morrill taken in this case, where it is proved that Sutter explained to witness that his grant did not extend to Sacramento, but that he had his land at Hock Farm; see also the depositon of Mrs. Hopper, who testifies to similar facts. These matters came from the claimant, while yet he was under his own control, and show his intention in the premises. 42. But it is said the term New Helvetia has a controlling influence, and gives locality to the grant, and fixes it so as to include the establishment south of the American river. Now, a conveyance of Blackacre would be good, provided the place and limits were well known and universally acknowledged; and provided, further, 334 there were no restrictive words modifying the boundaries to wh:ch the name applied. But a conveyance of Blackacre, when the conveyance itself was the commencement of the name, would hardly be held good. In this case there is no proof that before the grant any such name was given to any locality in California, with limits sufficiently defined for the boundary of a grant. The claimant was a native of Switzerland, and in honor of his fatherland he named his grant after his Alpine home, in token of his affection for the home of his youth. Thereupon New Helvetia became an existence with the limits fixed in the grant, and to be fixed by a judicial survey. Sutter still continued his settlement on the American river, and called that New Helvetia; and while it is true, as the witnesses have stated, that the settlement at the fort was called by that name, and Capt. Sutter kept an establishment there, and if you will make that his headquarters, believing it to be within his grant, it is equally true that New Helvetia, within the meaning given to that name in the grant, extended as far north as the Buttes. The eleven leagues are to be taken in his establishment named New Helvetia; and then there is a still further restriction within certain other boundaries, to wit: the Sacramento and Feather rivers and the Buttes. See the last deposition of Vioget, who explains what was understood by the term 248 The United States vs. Sutter. New Helvetia; also the last deposition of Bidwell, taken before a notary public, and Samuel Norris, who show the extent of Sutter's claim. 43. Those landmarks I have named in the grant are of such a character as to control the location-they are not liable to change. The location of rivers and mountains cannot well be mistaken; and yet to sustain the hypothesis maintained by the claimant, the Three Peaks, which are as well known as any point in California, must give way to the name of an establishment which, if not built after the grant was made, was before that time at least an insignificant point without a name, and those rivers which are set down as landmarks must be disregarded to conform to modern ideas of propriety. 335 44. How, then, stands the settlement of Capt. Sutter in reference to his grant? Men came and went perhaps at his bidding. He may have induced large numbers of persons to settle temporarily at the fort on the American river, and on the east side of Feather river. But this was not settling his grant; and if he made any attempt to induce a settler to go upon this land within the limits set down in his grant, the fact does not appear; and consequently, even conceding that the kind of settlement proved would have been a compliance with the terms of the grant, no settlement was made upon the land; consequently, whether it was by mistake, inadvertence, or disregard of the authority contained in his concession, he cannot be entitled to the benefits of a compliance. 45. The term New Helvetia cannot locate the grant, as that term, if it had any assigned limits before the grant, was confined to the small settlement at the fort. The petition of Sutter to the governor speaks of the necessity of an enlargement of his establishment; thus it would appear asking for other lands than those he then occupied, though he had a settlement at both places. The language of his grant is not including his establishment named New Helvetia, but in his establishment showing that he considered "his establishment" much larger than his fort, and limited probably by no more distinct or definite appellation than "frontiers of the north." 46. But it issaid the government of Mexico recognised the rights of Captain Sutter in various ways, and the claimant has placed in evidence the expediente formed in the application of Wm. A. Leidesdorff for a tract of land on the American river, and east of Sutter's establishment. Mr. Leidesdorff petitions for eight leagues of vacant land, adjoining the lands of Mr. Sutter, August 29th, 1844. Manuel Jimeno, same day, orders Mr. Sutter to report. John A. Sutter writes, of the date of August 4, before the petition, that the land is vacant. Jimeno reports that the land petitioned for is vacant, and so 336 near the place of Mr. Sutter that it may be granted. Micheltorena then decrees to Leidesdorff the land on the American river, bounded by the land granted to the colony of Mr. Sutter, and by the hills on the east. By this it is sought to prove that there was a grant to the colony of Mr. Sutter, and the government so understood the truth to be. In order to understand the legal effects of this proceeding, it will The United States vs. Sutter. 249 be necessary to examine how these expedientes are made up. Capt. Sutter lived, or at least had an establishment, near the land petitioned for. The inhabitants, and those wishing to settle in that part of the country, had no means of knowing where Sutter had a right to occupy in any other way than by examining his actual improvements. Capt. S. had settled there without title, when there was no other person asking for land in that section. He had got a paper-title to some place in the vicinity, and had actual possession of the land about the fort. It was called in common conversation Sutter's land. It might have been, and probably was generally understood to be, his land in the same way that we now take the actual possession of land under a claim of title to be the owner until we investigate the matter, and find out the defects in his claim of title. In making up the expediente for Leidesdorff it was called Sutter's in the petition, and bounded by the land granted to the colony of Sutter in the grant given to Leidesdorff. It does not appear that the governor examined Sutter's titlepapers. The governor who made the grant to Sutter had gone out of office, and in making up an expediente for a tract adjoining the fort of Sutter, without examining the matter, but taking that for granted, the establishment was named as a boundary. 47. Now, what is the law on this point? It is evident you cannot go into the title of A to find whether B has title to a different tract; and if one is referred to in the other by way of description, those words of description could not have a governing influence in a title wherein the words were not inserted. If the claim of Sutter should be rejected or located north of the American river, that would 337 not, of itself, destroy the Leidesdorff grant; or if words had been inserted which denied any grant to Sutter, they could not, in any way, vary or change the force and effect of the conveyance to Sutter; and the converse of this proposition is equally true. If Sutter's grant had not vitality in itself sufficient to support this claim, no words in any other grant could infuse any new life into this. I once saw it stated that by injecting blood warm from the veins of a young and vigorous person into the arteries of an old and infirm one, the limbs that were before weak and decrepit became supple and vigorous. But I believe that idea has been exploded; and I think this effort to infuse new life into the claimant's title in this case, by infusing into its tissues vitality from another grant, will be equally abortive. The grant to Sutter is either a good one or it is not. If it is, it will stand without the aid of another grant; if it is not, that other grant will not rectify any defect. 48. Another effort of an analogous character is made to prove a recognition of Sutter's claim by the Mexican government; the evidence is found in Mr. Proudhon's deposition. In 1845 he went with one Gen. Castellero to effect a purchase of New Helvetia of Capt. Sutter, and made him certain offers, which were refused. It is submitted that this evidence in no way varies the legal effect of the terms of the grant, or failure to comply with conditions, or its want of vitality for any reason. In the first place the order of Castillero is not produced, and no proof of that order, other than the order itself, can be 250 The United States vs. Sutter. received till its loss is shown. But if an order is admitted that came from the general government, who knew nothing of the grants in California, and the offer was made without knowing any of the facts, it is submitted that any number of such offers would not vary the grant. Again, the offer was to purchase New Helvetia, and Capt. Sutter, in a deposition filed in case No. 6, says that New Helvetia was co-extensive with his grant, extending up to the Buttes, and the offer was to buy him out wherever his rights might be, and it may 338 be to buy his improvements on the land of the government. But more likely the offer was made to get rid of a foreigner whom the government distrusted, as the troublous times of 1846 were foreseen. The offer was made by a government officer upon information he had, and if. on examination, he could have refused to buy, and the Mexican government could have asserted her right to the land, such offer would not be considered as conferring title. The evidence of J. P. Leese proves that the government desired to get rid of Sutter, as one of the conditions upon which they were instructed to purchase was that Sutter was to leave the country. Documents recently filed in the case from the archives show the desire of the gov't to get rid of Sutter, and the object in making the offer. The proceedings relative to the Russian settlement also show that such offer admitted no right in the property in the land, but that the authorities were willing to pay a large amount of money to induce these foreigners to yield up their several possessions, and retire from the country, where their occupancy was by permission merely, and without title in the land where they were established. 49. It was decided in the case of U. S. vs. Low et al, reported in 16th Peters' Supreme Court Reports, page 162, that lands surveyed must be at the place named in the grant, otherwise it would be a new appropriation. This principle, it is believed, has never been doubted, and it it is applied in this case, nothing but a formal conviction of a mistake, if one had been made, could change the legal effect of the terms of the instrument declared on. But there is no proof whatever that there was any mistake on the part of the government in locating the grant. 50. We will now turn our attention to the alleged 22-league grant to the claimant and his son. The original of that claim has not been produced, and we submit that there is no sufficient proof of the execution and delivery of a document corresponding to the paper filed, purporting to be a copy. John Bidwell, 1st deposition, testifies: I know Capt. Sutter; in 1844, made application to Gov. Micheltorena for a grant of the surplus, and I suppose it was granted to him; I don't know of any com339 pensation received by him for his services unless by said grant of land. I accompanied Capt. Sutter to Monterey when he applied for the Sobrante, and remained there till he left. Mr. Bidwell was in the employ of Sutter from 1841 to 1846. Francisco Arce says he drew for Capt. Sutter a petition for the Sobrante, which was passed to the governor, and went through all the Thie United States vs. Sutter. 251 customary steps and was returned to the office again, when I believed it was delivered to Capt. Sutter. Juan Castaneda knew that Capt. Sutter presented a petition on behalf of himself and son, which was acted on in the usual form and granted; he drew the deed, and the governor executed it at Santa Barbara in his presence. The petition was presented in Oct., 1844, and granted in February, 1845; think paper marked C copy. Jimeno was secretary from 1842 to August, 1845. A petition was presented for the overplus in 1843 or 1844 by David Spence. The governor asked me if it could be granted; I replied there was no objection. Ite then stated that it was very well, and it remained to be matured at another time. The governor did not wish to grant this and other petitions till he had been to examine in person. He was prevented from going, and the petition was not granted, so far as I know. John S. Fowler says, in a second deposition, that he had both the grants in his possession, and they were destroyed by fire in 1851, and swears to copies. H. L. Ford swears that Capt. Sutter in 1845 showed him the Sobrante grant, and he swears to a copy. John Bidwell swears, in his deposition taken since the appeal, that he was with Capt. Sutter at Santa Barbara in 1845, and remained with him till 1846; he thinks if Sutter had received a grant for him and his son in the year 1845 he should have known it, and that the first time he heard of the Sobrante grant was after the land commission was organized. Tod Robinson swears that it was his business to examine land titles about Sacramento, and the first time he heard of the grant was after it was filed before the land commission. Mrs. Hopper testifies that Capt. Sutter told her that he 340 had applied for such a grant, but that he did not succeed in getting it. H. A. Caulfield swears that Sutter under oath testified he had no other grant than the one of June 18, 1841; and James McClatchy swears to like matter, and to statements made by Capt. Sutter to like effect. Jas. C. Zabriskie swears that in 1850 John S. Fowler had two papers purporting to be grants in his possession, and he thinks copy marked C is a true copy. The Sobrante grant was dated about November, 1844. A recital in a deed referred to in the deposition of Zabriskie, page 135 transcript, refers to two grants, one dated June 18, 1841, and the other about the month of November, 1844. 51. The existence and authenticity of this document mainly depends on the depositions of Juan Castaneda atnd Henry L. Ford. The former of these gentlemen was not cross-examined, and he swears that Micheltorena executed the deed in his presence, and the latter of whom swears that he saw the grant in Sutter's hands in 1845. Fowler's testimony, also that of Zabriskie, only goes to the fact 252 The United States vs. Sutter. of such a paper being in existence in 1850, and we will notice that in its proper place. These two witnesses evidently intend to swear to enough to authenticate the claim, and if they fail, it is from being over zealous. There is no evidence of the issuance of the grant produced from the archives. This of itself is a suspicious circumstance. The law of 1824 and regulations of 1828 required a note of the issuance of each grant to be made, and I have no doubt every genuine grant issued by Micheltorena was registered. 52. A question of law arises in this connection which ought to be fatal to this part of the case: the law requiring these records to be kept. The best evidence of the issuance of the grant after proof of the loss is the record from the archives; and if it is not found noted there, it is strong proof that it never was issued; and until the claimant has sought diligently for such record, he cannot be let in to prove the grant aliunde. 53. It is evident from the deposition of Jimeno that Michel341 torena refused to make the grant in 1844, when petioned for, and the reason given is also given in numerous other cases in the Sacramento valley. Jimeno was secretary till Micheltorena abdicated, and he never knew of its issuance, and if signed at Santa Barbara it was not according to the deposition of Castanieda, upon a petition presented there and then, but upon tie petition presented in 1844. There is no evidence that this petition was before the governor after he had refused the prayer. Bidwell testifies, that if the grant had been sent up by a courier he should have known it; he went to Santa Barbara and returned with Capt. Sutter; was with him all the time, and remained with him till 1846 as his confidential agent and clerk, and thinks the matter must have been known to him if the grant had been issued. How could it be otherwise? Bidwell made it his business to hunt places to locate grants; made maps to go with petitions; lived with Sutter; conversed freely and frequently with him, and must have known if such a grant had been issued. 54. How did it happen that Ford should, in the presence of one person, (now dead,) get a sight of that grant? Is there any reason assigned why he and Sutter should discuss, interpret, and construe this identical grant? Ford swears that exhibit C is a very good copy; he had seen the original in 1845, and after 10 years swears to a copy (not compared or authenticated) as a very good one; this is a remarkable instance of a tenacious memory, or of improvident swearing, and the simple fact that the witness is willing to identify a copy under the circumstances as a true one, should induce the court to take his testimony with many grains of allowance. He is certain that Micheltorena told the soldiers he had given Sutter all the land he asked for, and had made a general title, &c., manifesting an anxiety to identify the Sobrante grant. He says, in answer to the last question put, that he speaks from his recollection of the original grant. In answer to the thirteenth (13) question on cross-examination, witness says he does not recollect any boundary in the grant shown him, except the northern; that was the Three Buttes. Now The United States vs. Sutter. 253 look at the copy filed, and it will be seen that no boundary is mentioned therein, such as he represents; those objects appear in 342 the 11-league grant, and if any grant was shown him it was the Alvarado grant, and the imagination of the witness supplied or changed the grantor, grantees, date, and quanlity. 55. Especially are we led to the conclusion that no such grant had an existence till about the time the petition of claimant was filed in the land commission, when we consider the profound secrecy with which it must have been kept, and the positive oath of Sutter himself that he never had such a grant, with his various statements to the effect that his land was claimed under his 11-league grant, up about Hock Farm; and the recital in his deed, with the deposition of Zabriskie, strengthens our position. If he had such a grant at the time the deed bears date, he might and would have inserted the true date of the instrument in his reference to it. In all probability, at the time the deed was made, they (those who controlled Sutter's affairs) intended'to produce a copy of about that date, (Nov., 1844,) to fit the application in August of that year; they had not settled yet upon the amount, as they still retained it at 11 leagues, and when they first made the grant they fixed it of that date. (See Zabriskie's deposition.) 56. The reasons for this change of programme are not given, but, doubtless, they were thought to be adequate. A man who could be induced to swear to a copy, when he had not seen the original in ten years, could be induced to swear to one date as well as another; and the copy relied on was dated Feb'y 5th, with a view to fix such a time as the governor and Sutter were together. 56(. If the paper marked C is a copy of an original document, some person must have taken that from the original. When was it made? Who took it? For what purpose was it taken? These are pertinent inquiries' and we may subjoin, why did not the claimant produce the party who drew it from the original? When the papers of Fowler were burned, some one must have had a copy, or else this paper has been drawn without the original. If there were a copy in the hands of Fowler or any other interested party, the person 343 who drew it would be the proper witness to prove its terms and authenticity, and it is incumbent on the claimant to produce that best evidence; and not having done so, we are left to infer the motive. This copy might as well have been made in 1852 as earlier, and the proof could have been just as positive. If Sutter had such a grant, why was it kept secret? Why did he not, when he recorded his Alvarado grant, also record his 22-league grant? (See deposition of Joseph Clough.) Why did he not claim 33 instead of 11 leagues? (See his deeds on file.) Why did he not swear that he had another? and instead of denying it, why did he not inform those making inquiries that lie had such a grant? Mr. Bidwell savs Sutter claimed the same amount of land before, that he did after Feb'y, 1845; alnd S. Norris gives the extent of Sutter's claim in 1844, and shows it was the same as he claimed after 1845. 254 The United States vs. Setter. 58. The deposition of John S. Fowler cannot be relied o) as of much weight. He did not understand Spanish. He had never seen Micheltorena write. He was not acquainted with Spanish grants. He was largely interested, and no doubt, if a grant was forged, had a part in the matter; and if he is not impeached, his testimony is not entitled to much weight. His character is at least doubtful. He swears at random. He was largely interested, and his interest is not shown to have passed away from him. He told witness Mace he was interested after the oath was taken; also numerous other witnesses. His interest appears by copy of deed, and by the evidence of persons who conversed with him at different times. If this does not render him incompetent to testify, it, at least, will make his testimony incredible. From the foregoing considerations, we conclude there is not sufficient proof of the making and delivery of the 22-league grant to authorize the court in finding the fact to be that it was made and delivered. 59. On the supposition that the document was made and delivered, what are the legal results? 344 Castinada swears that Sutter represented to the governor that he had distributed the former grant among his colonists, and upon such representation the grant to twenty-two leagues was signed. We know by the proofs in this case that Capt. Sutter never did distribute all the lands comprehended in the eleven-league grant; and it is not shown that he ever distributed, within the meaning of the law, a single vara of the land to any person. Certain it is he is now prosecuting this claim in his own name, and for his own benefit, without showing any conveyance to him from any person to whon lie had distributed the same. The conclusion, then, is irresistible that when he made that representation to the governor it was without foundation. He cannot come into a court of equity and ask for a specific performance with his hands thus tainted with fraud. 60. The grant, if made at all, was illegal in this respect: one of the grantees was a minor and a non-resident. The oldest son of Capt. Sutter came to California in 1848, and at that time was not twenty-one years of age. It is provided in the XVth article of the law of 1824, (Rockwell, page 453,) that no person, by virtue of this law, who shall acquire the ownership of lands, shall retain them if he shall reside out of the territory of the republic. At the date of the grant the son resided in Switzerland, and consequently was incompetent to hold lands here by reason of his foreign birth and residence, and because he was a minor. That part of the grant was clearly illegal, and the son took nothing by the concession. 61. The twelfth section of the colonization law of 1824 provides that no person shall be allowed to obtain the ownership of more than one league square of irrigable land, four superficial leagues of land dependant on the seasons. and six superficial ones for the purpose of rearing cattle. On the hypothesis that the grant was duly executed and delivered, it was clearly in contravention of the law above quoted, and the grant professes to be in accordance with that act. The only grantee in the country had, before that time, all the. land The United States vs. Satter. 255 345 he could hold, and the grant was obtained by misrepresentation as to the distribution of the lands of the former grant. An application is now made to the equity powers of this court to confirm to the petitioner thirty-three leagues of land. Before the court can comply with the petition they will require the claimant, at least, to clear himself of the imputations of fraud. 62. The instrument recites that John A. Sutter and his son have solicited the surplus of land within his rancho, named New Helvetia, as laid down on the map which accompanies the espediente, (erroneously translated,) and then says: "I have conceded to them the mentioned land, declaring in them the ownership by these presents, subject to the approval of the departmental assembly." There are no other words of description contained in the document. No map was preserved in the archives, and there is no connexion whatever shown between the words of description in this paper and any map whatever. Counsel may ask the court to draw on their imaginations for the connexion between the map filed and this grant, but a court of equity will hardly go so far as to presume aly material fact in favor of a grant coming to light under the circumstances attaching to this. 63. The map of the country between Feather and Sacramento rivers south of an east and west line drawn through the Buttes, would comprehend vastly more land than the whole thirty-three leagues, and it would be impossible to create the land called for with certainty even if a confirmation could be had, as the calls in the concessions are made with reference to a certain quantity of land to be taken within certain boundaries, which boundaries contain much more land than both grants call for. The grants also call for a judicial survey, and each contains a provision for the reservation of the surplus which may result for the benefit of the nation. The rule was laid down by the board of U. S. land commissioners, in the Honcut case, and 346 has been repeatedly reaffirmed, that where a certain quantity of land was granted within a larger tract the grant was void for uncertainty, unless the specific land granted had been ascertained by a judicial survey, by a proper officer, under the Mexican governinent. Now, in this case, there can be no doubt about the quantity of land within the points named. A map is filed with the township lines accurately marked, and the calculations are easily made. There are between three and four hundred square miles of land between the Sacramento and Feather rivers and the Three Peaks. Capt. Sutter sold to Grimes about two hundred square miles of land on the east side of the Sacramento, and north of the American. This is exclusive of the land claimed south of the American river and east of Feather river, which may be set down at an addition of two hundred square miles of land, over all of which land the claimant exercised jurisdiction, and all of which he has sold, as appears by his deeds oil file. Here is ample room to locate the whole 33 leagues; and if confirmed to him, the whole land must be taken within the boundaries set down in the first grant. 64. The grant of Sutter excludes the lands liable to overflow, and much testimony has been adduced to show the character of the coun 256 The United States vs. Sutter, try claimed by Sutter and his grantees. An attempt was made to show that there was a small margin along the Sacramento, and not liable to inundation; but the truth is, and it sufficiently appears in the evidence, that the country for miles each side of the river is periodically inundated by the impulse, swelling, and currents of the rivers. True it is, that the banks are slightly higher than the land back, but it is nevertheless liable to overflow. There is no instance of a river, such as the Sacramento, having its banks above high water. The Misssisippi is of the same character, and liable to overflow. The 347 city of Sacramento is a standing monument of the truth of the assertion, and her debt has been doubled to protect herself from their annual overflows.-(See depositions of John Bigler, James M. Sanford, Mr. Cornell, and others.) This land is excluded from the terms of the grant, and must be by the decree. 65. Again by the act of Congress of 185, granting to Arkansas the swamp and overflowed land, and also granting those lands within her limits to other States. This is the construction given to the act by the Department of the Interior, and that all the swamp and overflowed land of the United States within the limits of California, by that act, passed immediately to the State of California. The legal title had not yet passed out of the government of Mexico when the treaty of Guadalupe Hidalgo was signed. There had been no approval of Sutter's claim by the assembly departmental or the supreme government, and now the State of California having the legal title, the United States cannot, by the issuance of a patent, give any rights as to those overflowed lands to the claimant, (see Manard's heirs vs. Massey, 8th Howard,) and the decree of the court, if the claim shall be confirmed at all, should exclude such lands, leaving the boundaries of this quality of land to be ascertained by the surveyor general. 66. The idea advanced by the brief of claimant, to the effect that there is a small margin on the banks of the river not liable to overflow, and that that narrow strip of land was the land granted, is certainly untenable. The fort of Sutter was on the high lands, and not on the margin of the river; Hock Farm also is on high ground, and 11 leagues of land not subject to overflow are easily surveyed at and near the present residence of the claimant, but they cannot be located in the form prescribed in the Fremont case at any point south of the tract where Hock Farm is situated, between Sacramento and Feather rivers. 67. Before closing this brief, it may be proper to advert to the question of the admissibility of some of the testimony presented on the part of the government. 348 68. Are thewitnesses who hold adversely to the claimant, and as settlers on some of the land covered by the map of the claimant, competent as witnesses? None of them are within the lines of his real claim. The common law rule adopted by statute in California, (see Laws. 1854, p. 66, sect. 393,) makes the test of interest, "that he will gain or lose by the direct legal operation and effect of the judgment, or that the record of the judgment will be legal evidence for or against him in some other action." The United States vs. Sutter. 257 By the act of Congress the witnesses cannot be pre-emptioners on land claimed under Spanish or Mexican grants, so that in point of law they cannot now be pre-emption claimants. The most that can be said is, that they hope or expect to be at some future time, should the land prove to be government land; they have not, therefore, any present vested or direct interest, and it is a mere contingency whether, even should the claim be rejected, they ever will have. They may not then be living; may not choose to remain on the land, or may be disqualified, in some of the ways specified in the act of Congress, from claiming as pre-emptors; in short, let the result of this claim be as it may, they get the land in the end, if at all, by purchase. Should these claimants succeed, they may become the owners by purchase of them; should the claim be rejected, they purchase of the government by paying cash for the land, and by performing the onerous conditions required by the act of Congress, to give them a preemption right. They never can get the land without buying and paying for it, let the case go as it may; in the one case they buy it of the private claimant, and in the other case of the government, for it will be remembered that there is law donating public lands in California to settlers. By residing upon it and having the proper qualifications, they merely obtain the right to buy the land at the minimum price, and it is in now way shown that the burdens at349 tached to a pre-emption, personal and pecuniary, are not equal to the full value of the land. It is in no way shown by the evidence that the witnesses would make any pecuniary gain by obtaining a pre-emption right to the land, i. e., the right to buy it and pay for it. It is not shown that the land is worth any more than they would have to pay for it, should they choose to hold it in that way, and the burden of proof lies on the party objecting. A standard writer on the law of evidence says that a witness is "always presumed to be competent; the burden of proof is on the objecting party to sustain his exception to the competency; and if he fail satisfactorily to establish it, the witness must be sworn." -(I Greenleafs Ev., page 504, sec. 390.) Says the same writer, in the same section: "The true test of interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that record will be legal evidence for or against him in some other action. It must be a present certain and vested interest, and not an uncertain remote or contingent. Thus the heir apparent to an estate is a competent witness in support of the claim of his ancestor," &c. The heir apparent was competent. Why? Because he had no certain vested interest. He might never live to be the heir, but might die before the ancestor. So these witnesses may die before the final rejection, or before the time would come when they could pre-empt. Again, the heir may be disinherited by will; and so Congress may, before the time of pre-emption comes, dispose of these lands so as to cut off the prospective right of pre-emption. This has been done in a multitude of other cases, when lands, which for years have re mained open to pre-emption, have been given for railroad purposes [REC. CCLVIII, D. T. 1862.]-17 258 The United States vs. Sutter. or made liable to and been taken by land warrants; and others still have lost the pre-emption to the lands on which they have for 350 years resided, for want of the money to pay the price before the public sale; and for aught the court can know such may be the case with these settlers. In short, these witnesses have no fixed, vested, present or certain interest. They are just as competent as if they lived entirely off the land. They may feel and interest in the question, but this does not disqualify their interest in the question, if they have any; is exactly balanced. If the judgment is in favor of the United States the result is exactly the same to them as if in favor of the claimant. In either case they must leave the land or buy it, and in either case they may not be able to buy the land at all, for the government may otherwise have disposed of it before them, or the claimants may not choose to sell. There can be no pretence of any interest. 351 Brief on the part of the Appellee. In the district court of the United States for the northern district of California, THE UNITED STATES, appellant, ) VS. JOHN A. SUTTER, appellee. (1.) The genuineness of the grant to John A. Sutter of the 18th June, 1841, is admitted. The whole point of the argument of the government seems to be, first. that Sacramento was not included in the grant; and second, that inasmuch as the settlements of New Ielvetia were about the fort, they are not a compliance with the condition of settlement, if the land properly granted lies between the junction of Sacramento and Feather rivers. It is denied that the map in the record is sufficiently proved as the one, or a copy, which went with the grant and expediente. It is submitted, that the land would pass under the description of "New Helvetia."-(4 Bacon, 522.) The false demonstration as to latitude may be rejected.-(27 Eng. Corn. L. Reps., p. 28; 2 Metcalf, 41; 2 Cushing, 392.) The counsel for the government admits that such is the law, but seeks to evade the force of the principle by saying that it must previously have been known by such name. No authority can be showni for such a qualification; that the country was known by that name previous to the date of the grant is sufficiently obvious from the fact that Sutter so designates it in his petition to the governor. It is denominated as his settlement of "New Helvetia," and all the proof shows that to have been at that time the fort now known as Sacramento, where he had extensive improvements and cultivation. (2.) Independent of the map, therefore, Sacramento is embraced in the gra'nt. Accor tillng to Lord Mansfield( a descrilption of lI!and The United States vs. Suiter. 259 352 by its occupiers and quantities is sufficient.-(Lamb vs. Reaston, 5 Trunton, 207; 1 Eng. Corn. Law Rep., vol. 1.) It is in proof from all the witnesses that "New Helvetia" extended from the lagoon below Sacramento to the "Buttes." How, then, can the settlement of "New Helvetia" itself be excluded-certainly, at that time one of the best known settlements in northern California, and recognized as a portion of New Helvetia in the subsequent grants to Leidesdorff and Grime's? It is attempted to be excluded from the grant by proving that the latitude mentioned in the grant for the southern boundary is more certain in description than the establishment or settlement "Nueva Helvetia." The proof shows that the latitude both on the north and south are incorrectly stated, and that, in fact, they are represented a great deal too far south with reference to their true position on the earth's surface. It appears from the evidence that they were stated in the grant from an observation of Vioget, which he declared to Sutter at that time could not be relied on, as his instruments were imperfect. (3.) It is argued strenuously by the counsel for the government that the Buttes, or Tres Picas, must prevail over latitude as to the northern boundary, because the most certain. Why, then, is not the "fort" and settlement of "New Helvetia," south of the American, more certain than the latitude 380 49' 42", erroneously given as the southern boundary? The American river, the fort, the settlements, and the cultivated fields, were objects as prominent and well known as the "Tres Picas;" they were the goal of many an emigrant who never had heard of the "Tres Picas." As objects both natural and artificial, they were both equally operative and controlling as a boundary. Independent of the map, therefore, there was given, in the language of the grant, as the base of the survey, the Sacramento river, from a line throug'h the "Tres Picas," south so as to include the fort or settlement of New Helvetia; and with these points given, and the quantity designated, both the Mexican law and the acts of the 353 U. S. Congress would determine the form of the survey in a rectangular figure, if there were nothing else to control; no surveyor could have any difficulty in surveying either eleven or thirty, three leagues with such located calls. There is no pretence for saying that the map is not proved. Vioget, who made the map, swears that the copy on file is substantially correct. It is immaterial whether it is referred to as Exhibit A or B; he pvoves the identity. The same thing is proved by Alvarado, who made the grant, by Fowler and others. There is nothing to warrant the insinuation of the squatters that the southern boundary was inl terpolated on the map. It must be true, beyond controversy, as Alv:.rdo states, that he gave them in the grant from the figures of the map. No party in interest would have been guilty of the folly of interpolating the latitude so widely variant from its true position. Besides, Vioget states that he fixed the latitude south of Sacramento at the lagoon. This lagoon is delineated on the map, together with 260 fhe United States vs. Sutter. other prominent objects, which is more certain in description than latitude. The objects mentioned on the map are just as much landmarks as though they had been specially mentioned in the language of the grant. A map may be used not only in aid of the calls in the grant, but to control and correct them.-(4 Wheaton, 449; 6 Humphrey, 400; 17 Mass'tts, 207.) The map delineates not only the rivers and the establishment of "New Helvetia," south of the American as well as north, but the lagoon, as a southern boundary. It also gives exterior lines to the map, and a scale by which the length and breadth of the grant may be determined. The governor grants according to the whole map, as the grant itself declares, and as he testifies. It is admitted that the survey and map of Vioget would have no efficacy without the adoption of the governor. He grants, not according to the survey, but according to the boundaries given, and the map in its totality. It is, therefore, absurd to say that the fort south of the American is not embraced in the grant. It presents nothing more than an excess of land within the exterior boundaries, much less than in the 354 Fremont case, and with far greater certainty in description. The same right of selection will be acceded to the grantee.(17 Howard; 4 Bacon, 525.) It does not, therefore, admit of doubt that the families settled at the fort were located on the grant within a reasonable time; the proof shows that there were more than a hundred families introduced within its limits by Sutter. There are no other twenty grantees who expended so much labor and capital in payment of their grants. His services to the Mexican government, and to the emigrants from the United States, were eminent. The grant to Sutter of 1841, as is argued by the counsel for the government, vests in him only one-thirteenth part of the grant. Such an argument contradicts the language of the instrument itself. The third condition declares that the grant was "made to him," Sutter. The fourth condition requires that the property shall be " confirmed unto him." The grant to Sutter was prior to the grant of Gulnac, and precisely similar, which has been confirmed both by the commission and by this court as vesting the interest exclusively in Gulnac. It was obviously a grant to an individual of an amount of land which the law authorized one grantee to receive upon the condition of the settlement of twelve families. Empresario grants, strictly speaking, were not limited to eleven leagues, as shown by the practice in granting lands in every Mexican department, and especially in Texas. The decree of the Mexican Congress of 1824 presents the empresario to make his own terms with the settlers. The colonization law of Coahuila and Texas so far modified this regulation as to require the settler to receive a particular lot of land by grant directly from the commissioner of the colony. No provision of this character is to be found in the law of 1828, for the regulation of lands in California. It was evidently the intention to vest the fee in the empresario, and to permit him to make such contract with the colonists as might be agreed on. There is nothing in the regulation that requires him to The United States vs. Sutter. 261 convey any land to the colonist. The rights of Sutter, there - 355 fore, would not be varied, if this were admitted to be a colonization grant; but the point seems to have been raised in the case of Gulnac by the secretary, and ruled by the governor that grants of this character were not empresario grants. It would be no objection to a confirmation in this case if it were admitted that Sutter took for himself and in trust for twelve others. The legal title vested in him by virtue of the governor's grant, as the Supreme Court of the U. S. held in the case of Fremont. He would, therefore, be the proper party to present the claim for confirmation to the commission, and the patent would ensure to the benefit of his cestui que trust. It is noticeable that the grant itself expressly requires that it shall be confirmed to him, which shows that the Mexican authorities understood that the title was, in the first instance, to be vested in him, even if he was bound to divide it among the colonists subsequently. Indeed, the empresario could have no control over his colonists or his contracts with them unless such were the case. Under any aspect of the case, it is a question between Sutter and third parties, and does not differ from that presented in Perchman's case, (7 Peters, page 51,) and cannot be heard here. There are no adverse claimants, and the patent will ensure as well to the benefit of Sutter's colonists as that of his other vendors. The proposition that a grant to Sutter and twelve others whom he might associate with him is not sufficiently certain, as the grantees need not be seriously discussed. It is certainly competent to prove who were the twelve selected; they will have no difficulty in doing so after the patent emanates, if they took anything by force of the grant. Id certum est quod certum reddi potest.-(4 Bacon, tit. Grant, p. 509; Hopstead vs. Hamstead, 2 Wend., 109.) It was clearly the duty of Sutter to present this title for confirmation for the benefit of his colonists, if he had any, as well as that of his other vendors. The charge of fraud against him for having represented it comes from those who have squatted on the land which they wish to appropriate, should it be deemed that this presentation of the title is insufficient. The action of the governor in the Gulnac case must be insuf356 ficient to show that it was not necessary in an empresario grant that the names of the colonists should be inserted in the grant. Such a grant implies a contract on the part of the empresario that in a given time, or if none be mentioned, within a reasonable time, he will find and introduce settlers. In the case of Arredondo, (6 Peters,) it was said that where no time was mentioned, the grantee had his lifetime. Although the first grant to Sutter is spoken of in the application and in subsequent titles as a grant for a colony, yet all the action of the government, as well as the grant itself, shows that the fee was vested in Sutter, subject to the condition of introducing twelve families or colonists. Under the regulations of 1828, the legal effect cf a colonization grant was to vest the fee in the empresario. That such is the true construction is evident from the language of the act cf the Mexican Congress of 1824, and the regulations of 1828. 262 The United States vs. Sutter. The 14th art. of the colonization law of 1824, adopted by the 3Mexican Congress, declares: "this law guaranties the contracts which the empresarios may make with families which -tr-y may bring out at their own expense, provided that they be not cc trary to the laws." The 16th art. enacts: "the government, (the federal executive,) in conformity with the principle established in this law, will proceed to the colonization of the territories of the republic." In conformity with this law, the President issued a general decree or regulation for the colonization of territories in November, 1828, authorizing the governors to grant lands to "empresario families or private persons, whether Mexicans or foreigners, who may ask for them for the purpose of cultivating and inhabiting them." The 7th art. provides that "the grants made to empresarios, for them to colonize with many families, shall not be held to be definitively valid until the approval of the supreme government be obtained, to which the necessary documents must be forwarded along with the report of the territorial deputation." Art. 10th provides that "no contract shall be admitted for a new town, except the empresario bind himself to present, as colonists, twelve families at least." It is said that the land in Sacramento is subject to be overflowed, and therefore is excluded 357 from the grant. That is a question for the surveyor, and not for the court. The line of overflow must be determined on the ground by an expert. Nothing is excluded but the swamp land, which is unfit for cultivation. The word used in the original expediente is "cenagados," marshy or swampy land-land so overflowed as to be unfit for use. The word "cenegados" is also used, which means overflowed land. The intention was to grant land fit for cultivation. The Department of the Interior has, in instructions to the surveyor general, deined overflowed land to be that which is so overflowed for a majority of years in the cropping season as to be unfit for cultivation. The land on the Sacramento is benefitted by the overflow. A crop can always be made after the water subsides. As well might it be said that the banks of the Nile or the Mississippi were rendered unfit for cultivation by the water. The overflow is the great source of fertility. The grant and the map both assume that the high land is on the bank of the river, which is also the fact. It is also in proof that Sutter had the largest portion of Sacramento enclosed, and under cultivation. We submit to the court that the sobrante grant is sufficiently proved. The fact that no expediente of the second grant is produced is not a material circumstance affecting its validity or genuineness. It is in proof that many of the records, in connection with land titles, have been lost. It is well known that a book of expedientes or grants by Micheltorena was burned in the possession of Capt. Folsom, in the great fire, as he has testified in several cases. Both of the original grants of Sutter were destroyed at the same time. Castaiada, the secretary who signed the grant, has sworn positively to its execution and contents, and that the copy on file is a true copy. Arce swears to the same thing, and to the delivering of The United States vs. Sutter. 263 the grant. Capt. Ford, who was an officer in Fremont's regiment, heard Micheltorena say that he had granted to Sutter all the land that he asked for, and saw the title and map in his (Sutter's) possession in 1845. These witnesses are unimpeached, and are supported 358 by Jimeno, Zabriskie, Fowler, and many others. Sutter conveyed most of his lands to his son in 1848, in which conveyance reference is made to both grants. Among the thirty or forty depositions of squatters taken in this case, one of them testified that he heard Sutter say, on oath, that he had no title. The statement is not very probable, and is contradicted by a deposition of Sutter taken in a case in a State court and produced in evidence here by the government, in which he says he claims under both titles. No formal delivery was necessary in case of a government grant. It is well settled, that when a grant or deed is beneficial to the party, its delivery will be presumed if it has been acted upon. (Church vs. Gilman, 15 Wend., p. 636.) Delivery of deed presumed from possession.-(14 U. S. Dig., p. 155; Deeds, II.) Proof of actual delivery is not necessary in the case of government grants. A grant by government is equivalent to a conveyance with livery of seizin.-(Enfield vs. Day, 11 New Hamp., 520.) A deed left by the vendor with his agent for registry is a sufficient delivery.-(12 Ala., 734.) A government grant is delivered when it passes the great seal.(Mobury vs. Madison, I Cr., 137; Pet. Cond., 267.) So with a corporation.-(1 Hilliard, 298.) The secretary says the grant was executed, which implies a delivery. A delivery to the secretary by the governor for registry would be sufficient. It cannot be matter of reasonable doubt that the limitation as the eleven leagues would not apply to Sutter as an empresario. It never was intended to apply, because it was intended that the empresario should reward his colonists with a portion of the lands. Again, under the act of October, 1828, of the Mexican government, it was declared that "a nonnaturalized empresario cannot reserve to himself a tract of land exceeding sixteen square leagues, which must be sold within twelve years, counting from the period of the acquisition of the property."(Smidt, p. 341; Arrillaga, p..) This shows that there was no limit as to naturalized empresarios, like Sutter, in regard to the amount of land which he might receive in compensation for 359 colonization. At all events Sutter would be entitled to sixteen leagues. His grant therefore be good to that extent, under any view, as a grant may be good for part and void for the excess.-(Winn vs. Paterson, 2 Peters.) The proof shows that, taking both grants together, Sutter has not reserved to himself more than sixteen leagues, as a great part of the tract was granted to others by the governor, with the consent of Sutter. The grant to John A. Sutter, jr., was good; e was not an alien. It appeared from the proof that at the time of the naturalization of the father the son was still a minor. Under the regulations issued by virtue of a decree of the Mexican Congress, it is declared by art. 8: "The naturalization of the husband, the head of the family, is con 264 The United States vs. Sutter. sidered as the naturalization of the wife and the minor children not emancipated."-(Schmidt, p. 347.) Again, in art. 9: Children of Mexican citizens, born out of the country, shall be considered as born within it." John A. Sutter, jr., was, under the Mexican law, as much a Mexican citizen as his father. He could have no other domicil than that of his father while he was a minor, by the rules both of the civil and common law. 2 Kent, (last. ed.,) pp. 227, 532, and note. Hustand vs. Kuns, 8 Blackf., 347. Story's Conflict of Laws. The change of the father's domicil, changes that of the son.-(lb., ~46.) It should be remarked, that by the 16th art. of the regulations of 1828, the children of the original grantees are entitled to the sobrante as preferred parties. There could be no limitation as to quantity in this case, because it was a title by way of sale. The consideration was valuable services, which in the case of Fremont is recognized as equivalent to money consideration. There is no doubt that under the decree of the Mexican government of April 4th, 1837, lands might be sold in payment of debts, and that under that decree numerous grants were made in payment for services rendered. A number have been con360 firmed by the commission, and it was held that this consideration exempts the grantee from settlement.-(Arrillaga, page 2G8; Translation in Rockwell, pp. 6, 27.) After the exercise of the power by the Mexican authorities for ten years, it lies on the party objecting to show the want of authority.-(U. S. vs. Clark, 8 Peters, 43).) The limitation of eleven leagues was on strict colonization grants to individuals. The decree of 1837 expressly repeals the colonization law, so far as it is in conflict with the power to sell. It is not to be "presumed that the government would sell land or grant it in compensation for services, and then revoke the grant because the quantity was more than eleven leagues. Again, Sutter, as an empresario, had a right to sixteen leagues, and his son to eleven. There is no proof that he retained more than this, after deducting what was distributed to the twelve families. The fact is, he retained much less. The law does not prohibit a party's receiving a grant for more than eleven leagues, but declares that more shall not be retained. This, as a condition, would be abolished by a change of sovereignty, inasmuch as there is no such rule under the laws of the federal or State government. It is admitted, and was fully proved, that the original and the sobrante grants were both settled and occupied. The interest which disqualifies a witness is a direct pecuniary interest in the result. The test is, whether the witness will gain or lose by the judgment of the court. A witness is called to prove that he has settled upon public land, and that, therefore, he is entitled to a pre-emption, which will withdraw the land from public sale, and give him a preferred right to purchase it at $1 25 per acre, although it may be really worth $1,000 per acre. To enable him to sustain the pre-emption, he must show that the The United States vs. Sutter. 265 grantee has no title to the property in question. He seeks to prove that fact by his own oath as to declarations made to him by the grantee. 361 More direct interest could not be imagined, and a more dangerous piece of evidence as against written government grants could not be stated. Here, in truth, is an association of squatters, who raise funds, employ counsel, and then offer to destroy the title by their own oaths. The witness claims by virtue of settlement and possession under the act of Congress; it is therefore a direct vested interest, adverse to the title, and disqualifies.-(Greenlea s Ev., vol. 1, ~ 391-2.) It appears from the proof in the case that a search has been made made in the proper office for an office copy of the Mexican grant for the sobrante, but that the same cannot be found. It is also shown that a portion of the records were lost during the war, and that one book of records was burned in San Francisco, in the possession of Captain Folsom, after the exchange of the ratifications of the treaty. R62 Decree. 363 No. 319. In the District Court of the United States for the northern district of California. THE UNITED STATES, appellants, ) vs. JOHN A. SUTTER, respondent. Transcript from board of commissioners, No. 92. Stated term, January 14th, 1867. On appeal by the United States from the final decision of the board of commissioners to ascertain and settle private land claims in the State of California. Decree. This cause came on to be heard at a stated term of the court, on appeal from the final decision of the board of commissioners to ascertain and settle the private land claims in the State of California, under the act of Congress approved on the 3d of March, A. D. 1851, upon the transcript of the proceedings and decision of the said board of commissioners, the papers and evidence on which the said decision was founded, and the petition of the appellants and answer of the appellee, and upon the further evidence given in this court, by leave of the court; and it appearing to the court that the said transcript has been duly filed according to law, and counsel for the respective parties having been heard, it is by the court hereby ordered, adjudged, and decreed, that 266 The United States vs. Sutter. the said decision be, and the same is hereby, in all things affirmed; and it is likewise further ordered, adjudged, and decreed, that the claim of the appellee, the said John A. Sutter, is a good and valid claim; and that the said claim be, and the same is hereby, confirmed. The land'of which confirmation is made is situated on the American, Sacramenlo, anl Feather rivers, and is known by the name of New Helvetia, b:i the same which was granted to the said John A. Sutter by grant luly executed by Gov. Juan B. Alvarado, on the 18th of Jur 3, 1841, and by a grant from Governor Manuel Micheltorena 364 to tie said John A. Sutter, and his son, John A. Sutter, jr., dated February 5th, 1845; the first for eleven square leagues of land, as exhibited on the sketch annexed to the proceedings, and the second for twenty-two square leagues of the sobrante or surplus of land within his rancho, named New Helvetia, as laid down on the map which accompanies the grant; the said land to be located according to the calls of the respective grants, as described and explained in the depositions of John J. Vioget, filed in the case, and within the following limits, to wit: On the south by a line d;awn due east from the Sacramento river, so as to touch the most southerly point of a pond or laguna situated near said river, and about five miles south of the American river, as represented on the map filed in the case, and marked "B. P. L., " exhibit to deposition of Juan B. Alvarado, March 15, 1855, which is also marked on said map "Lindero latitud norte 38~ 49' 32";" on the north by a line drawn due east from Sacramento river to the southern base of the mountains known as the Buttes, and represented on the said map by the name of "Los Tres Picos." and from thence until it intersects the eastern boundary of the tract, as represented on said map and described in the grant, and in the depositions of the said Vioget; on the west by the said river Sacramento, and on the east by the margins of Feather river, inclusive. For more particular description,reference to be had to the copies of the grants filed and proved in the case, bearing date the 18th of June, 1841, and the 5th February, 1485, to the said map marked'B. P. L.," exhibit to deposition of Juan B. Alvarado, March 15th, 1855, and to the depositions of John J. Vioget and Juan B. Alvarado, all of which are filed among the papers in the case. OGDEN HOFFMAN, U. S. Dist. Judge. Endorsed: Filed January 14, 1857. JOHN A. MONROE, Clerk. By W. H. CHEVERS, Deputy Clerk. 365 Order granting appeal. At a stated term of the district court of the United States of America for the northern district of California, held at the court-room in the city of San Francisco on Monday, the second day of February, in the year of our Lord one thousand eight hundred and fifty-seven. Present, the Hon. Ogden Hoffman, dist. judge. The United States vs. Sutter. 26 7 THE UNITED STATES) s. D. C. 319. —L. C. 92. JOHN A. SUTTER. In this case, on the application of the U. S. attorney, made in open court, it is ordered by this court that an appeal in behalf of the United States from the final decision of this court, rendered in said court at the present term, be, and the same is hereby granted, and that a certified transcript of the pleadings, evidence, depositions, and proceedings in the said cause be sent to the Supreme Court of the United States without delay. Endorsed: Filed February 2d, 1857. JOHN. A. MONROE, Clerk. By W. H. CHEVERS, Deputy Clerk. Clerk's certificate. I, John A. Monroe, clerk of the district court of the United States for the northern district of California, do hereby certify that the annexed pages, from one to three hundred and sixty-six, (1 to 366,) inclusive, contain a full, true, and correct transcript of the record on file from the board of land commissioners, together with the pleadings, depositions, orders, briefs, and decree filed in this office in the case entitled The United States, appellants, vs. John A. Sutter, appellee. 366 In testimony whereof, I have hereunto set my hand and affixed the seal of the said court this nineteenth day of [L.'. February, A. D. 1857, and of our independence the eightyfirst. JOHN A. MONROE, Clerk. By W. H. CHEVERS, Deputy. Filed 10th July, 1857. SUPREME COURT OF THE UNITED STATES. No. 258. THE UNITED STATES, APPELLANTS, VS4 JOHN A. SUTTER. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. INDEX. Original. Print. Mandate of the Supreme Court remanding the cause for further proceedings. 1 277 Application by claimant for return of survey............~........... 5 269 Order to return survey.........-... -......................... 8 269 Order allowing intervention of E. F. Gillespie.-..... -............ 9 280 Affidavit of E. F. Gillespie...................................,,... 10 280 Order allowing R. S. Mesick to appear as att'y....................... 15 282 Order remanding plat of survey, and directing survey to be made and plat returned -.-.............. — -- —..........-... 15 282 Plat of survey, in pursuance of foregoing order; (plat filed Feb'y 27, 1860) 18 284 Exceptions to survey by intervenor R. Gelston.-...-....... 19 287 Exceptions to survey by intervenor Gillespie -—.....-..... —--—....-. 21 288 Exceptions to survey by A. and C. Cadwalader.............-........... 22 289 Exceptions to survey by Simuel Brannan.. —---...........-...... 35 294 Exceptions to survey by L. Saunders,jr................................ 41 297 Exceptions to survey by the United States —........................... 46 299 Stipulation and order allowing testimony to be taken at Sacramento before Commissioner John B. Williams.....-... —. —. —. --..51 301 Deposition of T. M. Logan for the United States................ 54 303 Exhibit A, to deposition of Logan; hydrographic soale. Exhibit B,to deposition of Logan; explanation:, xhibit A. Map -..-.. 57 306 Deposition of J. C. Ledlie for the United States........... 59 309 Deposition of John Doherty for the United ta^!....... 61 311 Exhibit C, to deposition of Doherty. Map shc' wvamp and overflowed lands in the city of Sacramento. Deposition of John P. Rhodes for the United?..-' 66 319 Map,.... -.. 66 318 Deposition of Thomas K. Stewart for the lUJ i.,-.- --,, — 70 324 Deposition of E. R. Robinson for the United. *............. 72 327 270 INDEX. Original. Print. Deposition of Nicolas Algier for the United States- ---. —--..... —. — -- 78 334 Exhibit D, to deposition of Algier. Paper referring to deed from Sutter to Algier, made September 1, 1843.... —-..... ----—. —. --- 85 344 Exhibit E. Deed from Sutter to Algier, dated September 13, 1849, in place of the lost deed of September 1,1343...........- ---.......... 85 345 Exhibit F. Deed from'Bidwell, administrator of Farwell, to Algier, dated October 26, 1849. -.. —. —-- —.-....-,-..........-.. —--- 86 346 Exhibit G. Deed from Sutter to Farwell,dated May 10, 1845 -......-... 86 347 Exhibit H. Certificate of naturalization of N. Algier, dated November 12, 1844.-...........-.... —-..... -—........... 87 347 Exhibit 1. Deed from Sutter to Thomen, dated October 18, 1846......- 87 348 Exhibit J. Deed from Sutter to Emory, dated December 10, 1849 -.. —-. 88 349 Exhibit K. Deed from Sutter to Green, dated December 11, 1849 -.....-. 89 350 Exhibit L. Deed from Sutter to Lawton, dated April 11, 1850 --—. 90 352 Exhibit M. Deed from Sutter to Lawrence, dated July 24, 1850 — --- 91 353 Deposition of Henry Thoman for the United States -. --—. ---,, - 92 355 Deposition of J. N. Babcock for the United States ----—. 94 357 Exhibit N, to deposition of Babcock. Map. View of Sacramento during flood of 1850.- ---------- -- -6 —. -- 96 360 Deposition of Edmund Bray for the United States --,., ---- - 97 360 Deposition of John Prentice for the United States-, —-, — -—. 99 363 Deposition of L. Hamilton for the United States, —------ -- -- 104 370 Deposition of L. Keseberg for the United States --—.-.......- —. 107 373 Deposition of G. W. Colby for the United States....................-.. 110 376 Deposition of Joseph Powell for the United States. —..... — -- ~ —---- 117 386 Deposition of P. H. Burnett for the United States —.........-. —. 119 388 Deposition of John Rueger for the United States ------- - —.. 122 390 Deposition of S. Marshall for the United States... -....... 124 392 Deposition of J. D. B. Stillman for the United States —....-............ 1 126 395 Deposition of John Hatch for the United States. -,- -,. -- 128 396 Deposition of J. M. Sanford for the United States, —- ------—. 129 398 Deposition of J. R. Hardenburgh for the United States — _ —--—. 136 407 Deposition of B. B. Redding for the United States. -. —--- - --. 146 422 Deposition of J. McClatchy for the United States -....-....-_........... 150 428 Deposition of Joseph Clough for the United Statet s -.-.......1.5..... 154 433 Exhibit 0, to deposition of Clough, being Alvarodo grant, in Spanish. —... 156 435 Exhibit P, filed by United States, being a copy on I-parchment of map 13, P. L. for map A, P. L., or authenticated \Vioget map. See record now on file in clerk's office Supreme Court of the United States.) Map... —---. —--.. —-- ---.. —-...... —.-............... 157 436 Order allowing intervention of Hiram Grimes —..._.... 157 437 Exceptions to survey by Hiram Grimes-........... 159 438 Deposition of Nelson Wescoatt for the United States --- ---- - 165 440 exhibit Q, to de)osition of Wescoatt, being plat of survey of overflowed lands. M ap -................................................... 167 443;positioa of J. C. Sargeant for the United States —--—.. — --- 167 443 position of J. L. Hopper for the Unitcel Stalt es. — —._ -..._._____. _ 169 444 osition of Benjamin Green for the United St.ktes --.... -.......,,,- 170 415 INDEX. 271 Original. Print. Deposition of John Bidwell for R. Gelston —.. —------ —............... 172 447 Deposition of W. Buzzell for R. Gelston., —-- —,.. —-. 177 449 Monition, in pursuance of rules under act of 1860 —... -. _-. — - 197 456 Petition of Amos Pratt for leave to intervene. - -—.-.. 199 457 Intervention of P. H. Burnett —.- -—......-.. -.........-............ 202 459 Petition of J. H. McKee for leave to intervene.-. —- ~.... ---- 203 459 Intervention of N. Algier and others --------- -- --- 206 461 Exceptions to survey by N. Algier et al - -.....- - —. —. 209 462 Exceptions to survey by Amos Pratt ----._,..- - ----—. 211 463 Deed from Sutter to P. H. Burnett, July 24, 1849 - -—. — -- - 214 464 Deposition of A. H. Gillespie for claimant ——....... —- 224 468 Deposition of George Rowland for claimant,...-.-.......~.. —....-.... 243 475 Deposition of David Maddux for claimant ----.... —... —.- 249 478 Deposition of Frank Denver for claimant......- —........ 276 488 Deposition of G. H. Goddard for claimant -. —---- -—. -- 290 493 Deposition of Samuel Kyburg for claimant ---- ----—.-... —.. 302 498 Deposition of W. R. Grimshaw for claimant..-..- - -- -.... 322 505 Deposition of E. C. Kemble for claimant ---- - ---------- 326 507 Exhibit II, filed by the United State. Deed from Sutter to Lewis & Bigelow, dated January 2, 1850,-..... --- --------—......... —-----—.....-. 330 508 Decree of United States district court confirming the claim of Hiram Grimes, in case 417 -........-.-....... —....................... 331 510 Deposition of John A. Sutter for the United States ---- ------. 335 512 Deposition of John A. Sutter, in case No. 6.. —-- -........... 337 513 Deposition of John Halls for intervenor Gelston -....-..-.......-........ 351 519 Deposition of P. Gelston for intervenor Gelston --—.. —-...-3 ——...-. 357 521 Deposition of G. A. Grant fur intervenor Gelston.-.. -------- 359 522 Petition, amended petition, and decree of confirmation, in case 416; United States vs. Rowland Gelston, claiming part of " New Helvetia" ---- 378 529 Deposition of A. W. Von Schmidt for claimant.... - -----—. -390 534Exhibit No. 1, to deposition of Von Schmidt. Letter from John A. Sutter, February 1, 1856 —-- ------ ----- 417 544 Exhibit No. 2, to deposition of Von Schmidt, purporting to be a copy of Vioget map ----—....... —-—......... —------ - —. 424 547 Deposition of John Bidwell for claimant ----------- -- --- 425 547 Exhibit J. B. No. 1, to deposition of Bidwell. Deed from Sutter to Smith, June 1,184 6.....-................... —---- 471 563 Exhibit J. B. No. 2, to deposition of Bidwell. Deed from Sutter to Nye, June 1,1846 -.. — ------------—. —-----—.... —- -----—. — 475 565 Exhibit D, to deposition of Bidwell, being map of Sacramento, Feather, and Yuba rivers. — --—. --------------------- 477 566 Deposition of George Fisher for claimant. ——.. —-- ------ 478 566 Exhibit No. 1, to deposition of Fisher, being espedlente of John A. Sutter -- 493 572 Exhibit No. 2, to deposition of Fisher, being deposition of Vioget in Covilland case —------------- - ------------------- --------- 500 574 Exhibit No. 3, to deposition of Fisher, being agreement between Sutter and Cordua and Flugge, January 13, 1843. —----- - -------- 529 585 Deposition of E. D. Wheeler for claimant. —- -—... ---- - 534 587 Deposition of 11. F'. Teschemacker fr claimant..-.. —--. —-. — --- 537 589 272 INDEX. Original. Print, Deposition of Roland Gelston for claimant........................... 541 590' Deposition of W. M. Smith for claimant........................... 544 591 Offer of evidence in behalf of claimant................................. 549 593 Exhibit A, P. C. No. 1 for claimant, being deed from Covilland to Sicard, dated October, 1849............................................... 551 594 Exhibit A, P. C. No. 2 for claimant, being deed from Covilland to Ramirez and Sampson, October 1, 1849............................ 556 596 Exhibit A, P. C. No. 3 for claimant, being deed from Cordua to Nye and Foster, January 4, 1849.................................... 561 598 Exhibit A, P. C. No. 4 for claimant, being deed from Sutter to Covilland et al., January 18,1850................................................ 571 602 Exhibit A, P. C. No. 5 for claimant, being deed from Sutter to Ramirez et al., February 21, 1850........................... 575 604 Exhibit A, P. C. No. 6 for claimant, being copy of map filed in Covilland case- 579 606 Exhibit A, P. C. No. 7 for claimant, being petition for confirmation and decree of confirmation in Covilland case......................... 582 606 Order granting further time for taking further proofs.......... 591 610 Deposition of A. L. de la Laguna for'intervenor Pratt........... 592 610 Exhibit No. 1 to deposition of Laguna, being translation of Alvarado grant. 598 613 Exhibit No. 2 to deposition of Laguna, being translation of Sutter espediente 3 601 614 Exhibit No. 3 to deposition of Laguna, being espediente in Spanish........ 604 615 Exhibit Pratt No. 1 filed by intervenor Pratt, being three maps and accompanying deposition of John A. Sutter in 1858.......................... 611 618 Certified copies of deeds filed by Roland Gelston, being deed from Sutter to Gelston and Grant, dated January 28, 1850; Grant to Warbuss, May 11, 1850; Sutter to Gelston and Warbuss, June 20, 1850; Warbuss et al. to Gelston, November 30,,1850 -. --- ------------- 634 627 Map...... —----—. —--—.. —.-..... ——.............. —-.. —. —. 632 625 Power of attorney from Morrison et al. to Clough, dated September 6, 1850, filed by Gelston. -. -—....-.. —-................ - 651 654 Stipulation admitting foregoing deeds, &c —. —---- ------ -. 656 636 Exhibit S, filed by United States, being deed from Sutter to Bates, Crosby, and Norris, dated May 1, 1849 —..... —-----. —-—. 657 637 Exhibit T, filed by United States, being power of attorney from Sutter to Emory, dated December 10, 1849. —----. —------—.-. 668 640 Exhibit U, filed by United States, being general instructions from surveyor general of the United States for California to his deputies —---—. 672 642 Exhibit V, filed by United States, being Bidwell's map of the Sacramento valley.-.................. —------...... —------—. — -......... 686 646 Exhibit W, filed by United States, being Bidwell's deposition in Covilland case,December 21, 1852 -.. —. —-. —-—.-.-.... ----—. —----—.. 688 647 Exhibit X, filed by United States, being map referred to in Exhibit W...... 696 649 Deposition of R. C. Hopkins for United States. -- --—. —-- - 700 650 Deposition of J. M. Sanford for intervenor Pratt......................... 710 653 Exhibit Sanford No. 1, certificate of John J. Vioget, dated Sept. 4, 1855... 783 676 Exhibit Sanford No. 2,beingletterof Vioget,dated June 22, 1855........ 785 676 Exhibit Sanford No. 3, being receipt of Vioget for $348 50, Sept. 3, 1855 -.. 786 677 Deed from sheriff of Sutter county to Packard and Woodruff, dated November 26, 1857, filed by intervenor Pratt......-............,... 787 677 INDEX. 273 Original. Print. Map of Hock farm, filed by intervenor Pratt...................... 801 683 Deed from Packard and Woodruff to A. Pratt, dated April 5, 1860, filed by intervenor Pratt.-._.................~.................... -..... 803 684 Certified copy of judgment roll from district court, 10th district, California, filed by Pratt... -..................................... 811 686 Deposition of H. F. Teschemacker for intervenor Grimes.................. 953 735 Exhibit A, to deposition of Teschemacker, being deed from Sutter to Graves et al., dated August 10,1843..................................... 956 736 Certified copy of papers in case of United States vs. Norris, Rancho el Paso, filed by claimant..........................-...... 959 737 Map................................ —-- --........-..... 968 740 Petition of John A. Sutter for confirmation of official survey............ 969 741 Map of public surveys in California, filed by intervenor Gelston. Deposition of J. B. Alvarado in Covilland case, filed by claimant........... 970 741 Papers from case 146, United States vs. Norris, claiming El Paso Rancho, to wit: grant to and espediente of Grimes, and translations; deposition of John A. Sutter; opinion and decree of the board of land commissioners.. 979 744 Map —................................................... 988 747 Papers from case 181, United States vs. Grimes, claiming Rancho San Juan, to wit: petition to the board, grant, espediente.........- —. —----—.- - 1013 755 Map —---.................-.....-..... —------...-.. - 1027 760 Deposition of Sutter in Covilland case.................................. 1033 762 Deposition of Vioget in Covilland case................................ 1038 763 Affidavit of Charles L. Low......................................... 1046 766 Opinion of the court rejecting survey................................. 1049 767 Orderdirecting new survey..-.-............... —-----.~. 1113 788 Plat of location by surveyor general, in pursuance of foregoing order, and his accompanying remarks......................................... 1124 792 Notice of motion by claimant that objections to location made be heard. — 1126 793 Order allowing time to file exceptions to plat of location, and fixing day for hearing. —...- -..-.......................-................. - 1128 794 Objections to location by intervenor Gelston......................... - 1129 794 Objections to location by E. F. Gillespie.-.............- -. 1133 795 Confirmation of deed from Sutter to Gillespie, August 8, 1853.. 1136 796 Deed from Sutter to Gillespie, April 1, 1851............................ 1141 798 Objections to location by the United States.................-...... 1147 800 Otjections to location by Samuel Brannan -..... —- -...- --—... -. 1152 802 Exhibit A. Deed from Sutter to Brannan,dated May 11, 1849. ----- - 1156 804 Exhibit B. Map of Brannan tract -..-.-..-......-~ —----—. 1160 805 Objections to location by W. R. Garrison -.....-..-.-........- - 1161 805 Dee(ls, &c, showing title in Garrison.-.. — -................ 1165 807 Affidavitof L.H.Shortt,filed byGelston...........................1199 819 Affid.vit of George R. Turner, filed by Gelston... -- -—...... 1204 820 Oljections to location by the United States -..-. —--- - 1209 822 Otijections to location by intervenor Grimes -. —--......-.- 1210 822 Olbjections to location by intervenor Pratt.......-.. -................ 1213 823 Older allowing testimony to be taken before W. H. Chevers............ 1214 824 Order substituting McAllister for Chevers..................... 1216 824 [REC. CCLVIII. D. T. 1862.1-18 274 INDEX, Original. Printt Objections to location by intervenor McKee............................ 1217 82& Deposition of George R. Turner for Gelaton... —-. —-—. - —..a.. —.... 1219 826 Map.,-.. —---—...................... ---- ------ - 1232 830 Exhibit Beale No. 1, to deposition of Turner, showing location of tract No. 1. 1233 830 Deposition of L. N. Shortt for Gelston................................. 1238 832 Deposition of John Brannan for Brannan -............-............... 1253 837 Offer of evidence by intervenor Brannan...-...................... ——. 1257 838 Exhibit Brannan B. Deed from Sutter, jr., to Brannan, May 11, 1849.... 1259 839 Exhibit Brannan C. Deed from Sutter to Sutter, jr., October 14, 1848.... 1262 840 Deposition of John G. Cleal for United States.-.... —............. —..- 1268 842 Exhibit Cleal No. 1. Plat of swamp lands, —-- ------ ---- 1284 847 Deposition of J. G. Cleal for Gillespie,-.....-......................-. 1287 848 Map. Exhibit Cleal No. 2. Diagram of survey. —....... 1300 853 Deposition of Lewis Whittier for United States...- —,. —. —.. 1301 853 Deposition of C. Bielawski for United States in support of exhibit Beale No. 1,page 1233.-. - -..-. —------- 1307 855 Exhibit Y, filed by United States, being deed from Sutter to Sevige, dated January 1,1850,-...............-...-.... —.................... 1327 862 Exhibit Z, filed by United States, being deed from Sutter to Sevige, dated May 4,1850 -13.- --—... —. —-. --.- 1333 864 Exhibits Garrison, Nos. 3 and 4, deeds showing title in Garrison.. —---- 1338 866 Deposition of Lewis Lillie for Garrison. —, — -- ---- - --- 1344 869 Exhibit Lillie No. 1. Power of attorney from Sutter to Emory, January 15, 1850 -..-............-.............. ----------- 1350 871 Deposition of Lloyd Tevis for Garrison -. —----- ---- 1352 872 Deposition of John A. Sutter for Garrison —------------ 1357 873 Deposition of M. Brumagine for Garrison - -- -. --. 1362 875 Deposition of William R. Garrison for Garrison. —----- -.... —-—. — 1367 877 Offer of evidence by intervenor Garrison -..-. - 1375 879 Deposition of H. P. Wakelee for Garrison- - 1381 881 Copy judgment roll in Hackney vs. McCullough et al. - -- ---- 1387 883 Copy judgment roll in Hackney vs. Roop et al., -,. ---- --- - 1425 896 Deposition of John H. McKee for Gillespie —-. —--- ---- - 1463 910 Deposition of A. W. Von Schmidt for Gillespie.. —....-. ---- - 1470 912 Deposition of A. M. Winn for Gillespie —. 1474 914 Deposition of Samuel Norris for Gillespie...... ----- --- - 1478 915 Deposition of H. M. La Rue for McKee - —. -------- --- 1481 916 Exhibit La Rue No. 1. Agreement ----------- -------- 1497 921 Order directing new plat of location, and setting aside plat filed July 17,1861. 1502 923 Plat of locatin, in pursuance of foregoing order, filed by the surveyor general, November 20,1861. Map....-...... —----—. —.. - 1508 925 Order approving plat of location filed November 20, 1861, and directing an actual survey -—,, —... —-- - 1509 926 Piat of survey, in pursuance of above order, filed by surveyor general, February 25,1863. —---—..... -.,,,....,. —, - - 1515 928 Stipulation reinstating A. Pratt as his own attorney —-.~ -—.-. -- 1515 931 Exceptions of Amos Pratt to official survey.-......-.. -. 1516 932 INDEX. 275 Original. Print' Exceptions of John A. Sutter to official survey......................... 1518 933 Exceptions of Roland Gelston to official survey........................ 1521 934 Intervention of William T. Coleman.................................. 1523 934 Intervention of Edwards Woodruff et at....................... — 1526 936 Intervention of Ann Sutter to official survey. —------ -15-....,. 1530 937 Exceptions of E. Woodruff et al. to official survey.- -. 1533 938 Exceptions of Ann Sutter-. —................................. - 1538 940 Exceptions of W. T. Coleman to official survey.-.................-. 1540 941 Deposition of John Bidwell for Coleman...........- -........... 1546 943 Deposition of C. Bielawski for Coleman.................. — 1558 948 Exhibit Coleman No. 1, being deed from Sutter to Beach, dated April 5, 1850; deed from Sutter to Fetter, dated February 12, 1850, and plat showing tract of 476 acres, (in yellow lines,) claimed by Coleman under deeds to Beach et al.-. 1566 950 Exhibit Coleman No. 2, to deposition of Bielawski, being plat showing discrepancy between the north and south lines of the land aolicited by Sutter, and the north and south lines of the land granted to Sutter. Exhibit E, W. P. to deposition of Bielawski, being plat showing portion of Hock Farm. Map.,....... -................... 1570 952 Two maps...-...-. —-----... —...-. —--—.........1574 954 Deposition of A. W. Von Schmidt for Woodruff et al t —- ---... 1575 954 Exhibit Von Schmidt No. 6, being deed from Robinson, Fowler et al. to Ann Sutter, dated July 1, 1850; and deed from Sutter and wife to Robinson, Fowler et al., dated July 1, 1850............ — 1580 956 Exhibit X, Y, Z, filed by United States, being deed from Gelston et al. to Sutter, dated November 28, 1850 ----.....,........ 1593 961 Opinion of the court modifying survey, shown by plat filed Feb. 25, 1863. 1599 964 Order directing modification of survey, in accordance with the opinion.. 1609 968 Order modifying last order- -. —-—..... 1613 969 Plat of survey from surveyor general, (in accordance with the two preceding orders,) filed May 11, 1863, and afterward made part of final decree... Motion by attorney for claimant for leave to take testimony in support of the 22-league rejected claim; affidavit of R. C. Hopkins in support of the 22league grant; order denying motion... ——.....-.... —-,....... — 1617 970 Final decree approving survey and location shown by plat filed May 11, 1863, and making said plat part of decree. —. -.. 1623 973 Mlap - ---------—. -- 1625 974 Order granting appeal in behalf of United States -........... —-....... 1626 978 Order granting appeal in behalf of R. Gelston..- -1627 979 Order allowing maps to form part of record on appeal. - 1629 979 Order granting appeal in behalf of H. Grimes...-.-.........-....-.... 1630 980 Certificate of district attorney - —.- ------ ---- 1631 980 PROCEEDINGS ON SECOND APPEAL. NoTE BY THE CLERK.-The record in this case, up to the issuance of the mandate of the Supreme Court, is now on file in the clerk's office of the Supreme Court of the United States. The record now transmitted commences with the mandate and includes all subsequent proceedings. Both records must be used together in the present appeal. I Mandate Supreme Court U. S. UNITED STATES OF AMERICA, 8s: The President of the United States of America to the honorable the judge. of the district court of the United Statesfor the northern district ] of California, greeting: Whereas, lately, in the district court of the United States for the northern district of California, before you, in a cause between the United States, appellants, and John R. Sutter, appellee, the decree of the said district court was in the following words, viz: This cause came on to be heard at a stated term of the court, on appeal from the final decision of the board of commissioners to ascertain and settle the private land claims in the State of California, under the act of Congress approved on the 3d of March, A. D. 1851, upon the transcript of the proceedings and decision of the said board of commissioners, the papers and evidence on which the said decision was founded, and the petition of the appellants and answer of the appellee, and upon the further evidence given in this court, by leave of the court; and it appearing to the court that the said transcript has been duly filed according to law, and counsel for 2 the respective parties having been heard, it is by the court hereby ordered, adjudged, and decreed that the said decision be, and the same is hereby, in all things affirmed; and it is likewise further ordered, adjudged, and decreed that the claim of the appellee, the said John A. Sutfer, is a good and valid claim, and that the said claim be, and the same is hereby, confirmed. The land of which confirmation is made is situated on the American, Sacramento, and Feather rivers, and is known by the name of New Helvetia, being the same which was granted to the said John A. Sutter by grant duly executed by Gov. Juan B. Alvarado, on the 18th of June, 1841, fi-lb y a grant from Governor Manuel Micheltorena to the said John A. Sutter, and his son, John A. Sutter, jr., dated February 5th, 1845; the first for eleven square leagues of land, as exhibited on the sketch annexed to the proceedings; MaOnb econdfor twenty-two square leagues of the sobranteor surplus of land witih::his-rancho, named New Helvetia, as laid down on the map~ whir-accompanies the grant; the said land to be located according to the calls of the respective grants, as described and explained in the depositions of John J. Vioget, filed in the case, and within the following limits, to wit: on the south by a line drawn due east from the Sacramento river, so as to touch the most southerly point 3 of a pond or laguna situated near said river, and about five miles south of the American river, as represented on the map filed in the case, and marked "B. P. L.," exhibit to deposition of Juan B. Alvarado, March 15th, 1855, which line is also marked on said map, "Lindero latitud norte 38~ 49' 32;"" on the north by a 278 The United States vs. Sutter. line drawn due east from the Sacramento river to the southern base of the mountains known as the Buttes, and represented on the said map by the name of "Los Tres Picos," and from thence until it intersects the eastern boundary of the tract, 8s represented on said map and described in the grant, and in the waC'0 of the said Vioget; on the west by the said river Sacramento, A stby the margins of Feather river, inclusive. For r - description reference to be had to the copiet of'the g, and proved in the case, bearing date the 18th of June, -~i, and the 5th ef- brary,-l184, to the said map marked "B. P. L.," exhibit to the deposition of Juan B. Alvarado, March 15th, 1855, and to the depositions of John J. Vioget and Juan B. Alvarado, all of which are filed among the papers in the case, as by the inspection of.he trPnscript of the record of the said district court, which was brou, the Supreme Court of the United States, by virtue of an appeal agreeably to the act of Congress in such case made and pro. 4 vided, fully and at large appears. And whereas, in the present term of December, in the year of our Lord one Lord one thousand eight hundred and fifty-eight, the said cause came on to be heard before the said Supreme Court on the said transcript of the record, and was argued by counsel: On consideration whereof, it is now here ordered, adjudged, and decreed by this court that so much of the decree of the said district court as confirms the claim"l' Jn A. Sutter to the eleven square leagues of land situated on the American, Sacramento, and Feather rivers, known by the name of New Helvetia, and which was granted to the said John A. Sutter by Governor Juan B. Alvarado on the 18th of June, 1841, as set forth and described in said decree, be, and the same is heret, aA sme s ter or ere, judged, and decreed by this court, that the residue of the said decree, in so far as it confirms a grant for twenty-two square leagues of land purporting to have been made to the said John A. Sutter by Governor Manuel Micheltorena, on the 5th of February, 1845, be, and the same is hereby, reversed and annulled; and that this cause be, and the same is hereby, remanded to the said district court for further proceedings to be had therein in conformity to the opinion of 5 this court. You, therefore, are hereby commanded that such further proceedings be had in said cause, in conformity to the opinion and decree of this Court as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding. Witness the honorable Roger B. Taney, chief justice of said Supreme Court, the first Monday of December, in the year of our Lord thousand eight hundred and fifty-eight. WM. THOS. CARROLL, Clerk of the Supreme Court of the United States. Endorsed: Filed July 5, 1859. W. H. CHEVERS, Clerk. The United States vs. Sutter. 279 Application for return of survey. To the honorable Ogden Hoffman, United States district judge of the norrrthr-district of the State of California. Yo..,, John A. Sutter, Henry Robinson, E. F. Gillespie Yinn, respectfully represent: That in 1841 the.i government granted to said Sutter a tract of land sit6 uate ^ the valley of the Sacramento, including what was then known as Sutter's Fort, or New Helvetia; and upon which site the present city of Sacramento is situated. That after the acquisition of California by the government of the United States said grant w^s.preiented to the United States land commission, created in purof the act of Congress of 1851, and by said commission duly conurmed. That subsequently the decision of said commission, on appeal to this honorable court was affirmed, and the decision of this court was affirmed on appeal to the Supreme Court of the United States, at the last term thereof. That since the final decision of the Supreme Court of the United States the United States surveyor general for the State of California has proceeded to survey said grant by one of his deputies, which said survey has been returned and approved by said surveyor general. Petitioners allege that said survey has not been made in conformity to said grant or the decision of said commission, the decree of this court or that of the Supreme Court of the United States, or the act of Congress regulating the surveys of private land claims. 7 Petitioners, therefore, pray that James W. Mandeville, surveyor general of the United States for the State of California, be cited to appear and return said survey into this court for its judgment and final action thereon. And that this court give the necessary order directing said surveyor general to survey said grant in conformity to the terms thereof, to the decree of the Supreme Court of the United States, and the acts of Congress in such case made and provided. Petitioners Robinson, Gillespie, and Winn, make known to the court that they are purchasers for value received of said Sutter of a portion of said land, and hold by good valid mesne conveyances duly recorded. V. E. HOWARD, for Claimant. Endorsed Filed Oct. 24, 1859. WM. H. CHEVERS, Clerk. 8 Order to return survey. At a stated term of the district court of the United States of America for the northern district of California, held at the court-house in the city of San Francisco, on Monday, the 24th day of October, in the year of our Lord one thousand eight hundred and fifty-nine. Present; The honorable Ogden Hoffman, district judge. 280 The United States vs. Sutter. THE UNITED STATES) US. -D. C. No. 319.-L. C. No. 92. JOHN A. SUTTER. It being suggested to the court that the survey of the land claimed in this case, made under final decree, and approved by the U. S. surveyor general for California, is erroneous, on application of V. E. Howard, esq., counsel for claimant, it is ordered that the said surveyor general return to this court a certified copy of the plat of said approved survey. And it is further ordered that a certified copy of this order be served on the said surveyor general for his information. Endorsed: Filed October 24, 1859. W. H. CHEVERS, Clerk. Order allowing Gillespie to intervene, &c. 9 At a stated term of the district court of the United States of America for the northern district of California, held at the court house in the city of San Francisco, on Wednesday, the 30th day of November, in the year of our Lord one thousand eight hundred and fifty-nine. Present: The honorable Ogden Hoffman, district judge. UNITED STATES vs. No. 319. JOHN A. SUTTER. On filing the affidavit of Eugene F. Gillespie herein, it is ordered that said Gillespie be, and he is hereby, permitted to intervene in the above cause for the purpose of filing exceptions to the survey returned into this court by the surveyor general; and the said Gillespie is hereby allowed twenty days, from this date, within which to file such exceptions; and he may adduce proof in support of his exceptions. But the above order is made subject to such decision as the court may hereafter make in respect to the right of said Gillespie to intervene for the purpose aforesaid; and if the court shall 10 hereafter decide that such intervention was improper, the foregoing order may be vacated. Dated San Francisco, 30 Nov., 1859. OGDEN HOFFMAN, District Judge. Endorsed: Filed Nov'r 30, 1859. W. H. CHEVERS, Clerk. Ajfdavit of E. F. Giltespie on motion to intervene. STATE OF CALIFORNIA, City and County of San Francisco, ss: Eugene F. Gillespie, being duly sworn, deposes and says, that on the first day of April, A. D. 1851, John A. Sutter conveyed to this deponent, by deed bearing that date, and duly recorded, a certain Thbe United States vs. Sutter. 281 tract of land therein described, as follows, to wit: "All that certain piece or tract of land situate, lying, and being in Sacramento county aforesaid, and described as follows, to wit: commencing at a point at the southwest corner of a tract of land sold by John A. Sutter to Samuel Norris, by deed dated thirteenth of September, eighteen hundred and forty-nine, and recorded in the office of the county recorder of Sacramento county, in book B, of deeds, page forty-five, and 11 which tract of land is commonly known as Norristown, and running from thence in a southwesterly direction in a direct line about two and one-quarter miles, more or less, until it intersects with the northeast corner of a tract of land sold by John A. Sutter to John McDougall, adjoining the town of Sutterville, by deed dated fifteenth day of December, eighteen hundred and forty-nine, and recorded in the office of the ofice of the county recorder of Sacramento county, in book D, of deeds, page 190; thence with the northeastern line of said tract to the northeast corner of a tract of land sold by John A. Sutter, junior, to George McDougall, by deed dated nineteenth of June, eighteen hundred and forty-nine, and recorded in the office of said county recorder of Sacramento county, in book A, of deeds, page 118; thence with the northern of said tract to the eastern line of a tract of land sold by John A. Sutter to John A. Sutter, junior, by deed dated eleventh May, 1850, and recorded in said county recorder's office of Sacramento county, in book C, of deeds, page 224; thence with the eastern line of said tract to its intersection with the southern line of Sacramento city; thence in an easterly direction to the southeast corner of said city; thence in a northerly direction with the eastern limit or boundary of Sacramento city, to 12 the southwest corner of a tract of land sold by John A. Sutter to Ringrove J. Watson, by deed dated May first, eighteen hundred and fifty, recorded in book D, of deeds, page 115; thence with the southern line of said tract, with the south line of K street, to the southeast corner of said tract; thence with the eastern line of said tract to its intersection with the large slough which runs from the west or rear of Sutter's fort, and thence along the meandering of said slough, on its north side, (said slough forms the southern boundary line of land sold by John A. Sutter to Jacob Rippstein and others, by deed dated first May, eighteen hundred and fifty, and recorded in said office of county recorder of Sacramento county, in book D, of deeds, page 123,) to a point where said slough intersects with land sold by Roland Gelston and others to R. A. Chase, by deed dated eight October, eighteen hundred and fifty, and recorded in said county recorder office of Sacramento county, in book E, of deeds, page 422; thence in a southerly and easterly direction to the northern line of the first referred to tract, belonging to Samuel Norris; thence along said line to the northwestern corner of said tract; and thence along the western boundary of said tract south 361 east, 76 13 chains 40 links, to the place of beginning. Also any and all lands lying in said county of Sacramento, south of the Ameril can Fork river, east of the Sacramento river, and west of tract of land hereinbefore described and conveyed, together with all the privileges 282 The United States vs. Sutter. and immunities belonging thereto, as conveyed to the party of the first part by Roland Gelston and others, by deed dated the eighth day of November, 1850, and recorded in book F, of deeds, in said county recorder's office of Sacramento county, in pages 345 and 346." That the deponent ever since the said first day of April, 1851, has been and now is the owner of the said tract of land above described, except some portions thereof which he has sold, and that the said tract is part of the tract of land granted to John A. Sutter by Juan B. Alvarado, on the 18th day of June, 1841, and is included within the survey and map made by Vioget, on file in the case of John A. Sutter vs. The United States, and which map is attached to the grant, and that the said tract of land is within the limits of the line particularly described by said Vioget, extending from the starting point to the point known as the St. Clair House, on the American river and within the angle formed by the said line of Vioget ana 14 the American and Sacramento rivers. That the present survey, on file in said cause, made and returned by J. W. Mandeville, surveyor general of the United States for California, does not embrace, but excludes, the said tract above described, from the tract intended by the decree of the district court in said cause. That affiant verily believes that said survey is erroneous, and does not conform either to the grant or decree; and that if said survey was properly made, it would embrace the lands so conveyed to deponent by the said Sutter. Wherefore he prays to be permitted to intervene in the said cause for the protection of his rights, and to file exceptions to the said survey, and to adduce proof in support of his said exceptions. Dated at San Francisco, Dec. 30th, 1859. EUGENE F. GILLESPIE. Sworn to and subscribed Nov. 30, 1859, before me. W. H. CHEVERS, U. S. Com'r. Endorsed: Filed Nov 30, 1859. W. H. CHEVERS, Clerk. 15 Order allowing Mesick as one of the atty'sfor c' t. At a stated term of the district court of the United States of America for the northern district of California, held at the courthouse in the city of San Francisco, on Thursday, the first day of December, in the year of our Lord one thousand eight hundred and fifty nine. Present: The honorable Ogden Hoffman, district judge. The United States vs. Sutter. 28S THE UNITED STATES vs. No. 319. JOHN A. SUTTER. On motion of Volney E. Howard, esq., counsel for the claimant in this case, it is ordered by the court that R. S. Mesick, esq., be, and he is hereby, allowed to appear as one of the counsel for the said claimant. Endorsed: Filed Dec. 1st, 1859. W. H. CHEVERS, Clerk. Order to return plat to surveyor gen'l, &c. At a stated term of the district court of the United States of America for the northern district of California, held at the courtroom in the city of San Francisco, on Friday, the second day of December, in the year of our Lord one thousand eight hundred and fifty-nine. 16 Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES vs. No. 319. "New Helvetia." JOHN A. SUTTER. ) It appearing to the court that a mandate from the Supreme Court of the U. S. directing further proceedings to be had in accordance therewith, was filed in this court on the 5th day of July, 1859; and it further appearing that on the 21st day of November, 1859, a certified copy plat of the survey of the land confirmed in this case was filed in the clerk's office in pursuance of an order entered Oct. 24, 1859, upon an application made the same day by the attorney for claimant, which survey, by the certificate of the U. S. surveyor general for Cal'a on said copy plat, purports to have been made under the said mandate, but which does not purport to be the approved survey of the said surveyor general; and it further appearing to the court that no order has heretofore been entered directing the said surveyor general to cause an official survey of said land to be made under the authority of said mandate: Now, therefore, on motion 17 of V. E. Howard, esq., attorney for the claimant, the acting U. S. attorney being present and assenting thereto, it is ordered that the order heretofore entered directing the said surveyor to return the said survey into court, and the order allowing the U. S. certain time to file their exceptions thereto, be, and hereby are, vacated and annulled. And it is further ordered that the clerk of this court withdraw from the files and return to the said surveyor general the said certified copy plat filed November 21, 1859. And it is further ordered that the said surveyor general do now proceed to make an official survey of the land claimed and confirmed this case, in accordance with the said mandate of the Supreme Court, and the opinion of said court to which the mandate refers, and that when said survey shall be completed and the field notes thereof approved by him, he shall file in the clerk's office a certified copy plat of the same, upon which he shall set forth his certificate that the same 284 The United States vs. Sutter. is a true copy of the plat of said survey, and that he has approved of and adopted the said survey. And it is further ordered that the claimant, the U. S., and 18 all other parties intervening, be allowed thirty days, from and after the return and filing of the said certified copy plat of said survey hereinbefore ordered to be made, to file their exceptions thereto. And it is further ordered that a certified copy of this order be served upon the said surveyor general for his information and guidance. OGDEN HOFFMAN, U. S. Dist. Judge. Endorsed: I hereby certify that I served the within order personally, by copy, on J. W. Mandeville, in the city of San Francisco, on the 3rd day of December, 1859. P. L. SOLOMON, U.. Marshal, By JOHN L. BELL, Deputy. DEC. 3D, 1859. Filed December 2nd, 1859. W. H. CHEVERS, Cerk. (Here follows plat, page 18.) Boundaries of lot No. 1. No. Course. Distance. No. Course. Distance. No. Course. Distance. I East.......... 48.00 32 N.29W.......... 28.60 63 S. 8 W......... 12.64 2 North...... 5.27 33 "46 "......... 17.00 64 " 26......... 28.00 3 East............ 40.00 34 "52.......... 15.00 65 38.......... 27.50 4 North........ 40.00 35 " 67. 13.40 66 57.......... 36.57 5 East....... 40.00 36 S 55 " 12.50 67 "74".... 8.38 6 North........... 120.00 37 " 32.......... 11.00 68 62.......... 11.30 7 East........... 360.00 38 " 45 "......... 19.00 69 " 44........ 5.57 8 North....... 24.76 39 " 361"..... 13.00 70 " 21..... 11.00 9 8.86 W.......... 13.13 40 "64......... 10.00 71 " 461 E...... 11.00 10 N. 73 W.......... 28.00 41 " 81.......... 17.76 72 " 36......... 12.00 It "50 "......... 4.30 42 ]" 69...... 9.00 73 " 48"... 20.40 12 " 38........ 13.30 43 " 47* "..........25 13 " 231"......... 28.90 44 " 51 "....... 8.60 ~ 14 " 2"........ 35.00 45 " 101".2.79 Meanders of Sutter Lake: Begin15 " 561 "........ 28.00 46 " 5 "..... 3.05 ning at end of course 49, thence 16 S.29 "......... 4.50 47 " 6...... 8.53 S. 89* E., 15.55, to point on 17 " 371 ".......... 12.00 48 " 31"..... 5.00 8utter Lake on east side of 3rd 18 N. 36 "....... 12.00 49 I' 11 "........ 5.27 street, 25 feet northerly from L 19 " 15..... 7.00.50 " 19 ".......... 47.43 street; thence20 ".8 E...... 6.00 51 "38........ 12.78 21' 30 W..... 25.00 52 " 52 " 27.80 1 S. 76 E..89 22 "481 ".... 32.32 53 " 38 1. 1800......'8, 00' 23 "151 "."........ 19.80 54 " 7. 7.56 3 4* 82..... 24 "88"........ 13.00 55 "19 E 17.54 25 8.681".... 21.31 56 35 ".10.18 55 E....... 26 " 561 ".. 29.00 57 " 13",. 19.75...... 2 27 " 46",....00 58 ". 13 "c..... 1 4.90.19 " 2.20 28 N.59 ".. 12.50 59 " 201 " 13.50 2....... 3. 39 "47" 25....00 60 " 28 ". 16.10 8....0 1. 30 1" 34 "....... 9.00 61 27 1"... 16.40 19.......... 0.45 31 " 27 "....... 20.00 62O "20. 8.40 10 70'. 11 S. 81*.4..0...... 12 N.701 W....... 4.85 13 8.290 E......... 7.73 14 "19 7 W... 3.64 15 " 83 ".. 3.69 16 "19...1. 0.76 1,105.09 432.09 256.05 432.09 1,105.09 Aggregate of exterior boundaries of lot No. 1......1........ 1,793.23 The United States vs. Sutter. 285 Boundaries of lot No. 2. No. Course. Distance. No. Course. Distance. No. Course. Distance. 1 S.89*'W...... 6.00 56 S. 91 W...... 9.50 111 S.45* E........ 28.0J 2 "9 71 "...... 9.00 57 " 21 "........ 10.00 112 "161 "........ 15.00 3 N.82 " ~... 8.40 58 South.......... 28.00 113 " 10* W....... 8.80 4 8.86 "..... 28.17 59 8. 39* W.... 10.00 114 "21 "....... 27.50 5 "75...... 14.06 60 " 47 "..... 21.00 115 "17 E~........ 21.00 6 "40 "....... 8.22 61 " 331 E........ 11.00 116 " 29........ 26.00 7 " 37 ".... 41.10 62 74 ",.... 20.75 117 " 10..... 35.00 8 " 24* ",.... 16.00 63 N.68 ".... 13.00 118 1818'....... 21.00 9 "37*...... 12.00 64 " 41 "........ 7.00 119 " 20* E....... 37.00 10 "44 "It....... 2-2.00 65 "9 28 "........ 13.00 120 " 14* W....... 17.00 11 "70* ".... 18.00 66 " 641 "....... 18.00 121 " 721........ 17.50 12 N.53 "...... 13.60 67 8.421....... 15.00 122 " 5 "........ 12.50 13 8.64.... 51.10 68 " 24 ",...... 42.47 123 41X E........ 18.00 14 29 E.. 27.30 69 " 1t W... 29.70 124 "161 "....... 14.50 15 "18..... 16.00 70 " 27 "....... 29.35 125 " 501........ 23.00 16 South........ 11.20 71 " 24*.... 13.00 126 " 451........ 6.60 17 8.24* W..... 16.86 72 "381 "...... 19.40 127 "10 "....... 13.00 18 "52* "... 15.40 73 "281 "..... 30.60 128 "271 W....... 53.00 19 "311 ".~. 3.50 74 " 251 "..... 2'.35 129 5 E........ 20.50 20 "10 E..... 10.00 75 "32* "..... 24.00 130 12........ 19.50 21 " 17..... 11.00 76 " 39 ".. 50.00 131 63 W...... 9.00 22 "54 ".. 15.00 77 "15 "........ 14.00 132 "31........ 10.40 23 "281 "... 10.00 78 South........... 14.00 133 "661 "........ 8.30 24 "22 W..... 10.00 79 S. 31 E.... 26.00 134 521 "........ 62.40 25 551,,.. 6.00 80 "101 "... 10.00 135 " 46........ 18.50 26 " 77,,...... 14.00 81 " 4 "..... 38.50 136 " 80........ 6.00 27 " 43 "-..... 15.00 82 " 131 "...... 19.00 137 N.401 "....... 15.00 28 "23 "... 16.51 83 " 27 "..... 41.38 138 South........... 79.80 29 " 5 ". 27.00 84 "39 ""..... 4.86 139 East.... 93.70 30 46... 7.00 85 "49........ 15.00 140 North........... 40.00 31 "56 "... 16.00 86 "21 "..... 33.50 141 East........... 38.00 32 " 79.. 9.00 87 14.... 3.67 14 North........... 120.00,33 West........... 9.00 88 "52 W.11.50 143 East............. 20.00 34 N.48 W....... 29.00 89 " 85 "...... 16.00 144 North.......... 40.00 35 " 10 "........ 6.62 90 " 591 "...... 12.00 145 East............. 20.00 36 " 18 E...... 6.00 91 " 12 "..... 15.00 146 North...2....... 220.00 37 "271 W... 12.00 92 "65 E........ 6.70 147 West.......... 20.00 38 "87.... 6.50 93 " 86.... 10.60 148 North........... 360.00 39 " 50* 6.00 94 "66 ".~~.. 10.00 149 West. 40.00 40 " 78... 16.00 95 " 62 "...... 28.00 150 North............ 68.00 41 S.62... 5.60 96 " 881 ",...... 45.68 151 West..... 37.00 42 "44 "... 11.00 97 " 50 ".... 6.75 152 North............ 200.00 43 711...... 11.00 98 "16... 8.50 153 East............. 20.00 44 N.56 "... 10.00 99 " 5 "... 11.30 154 North.......... 40.00 45 8.83*...... 8.00 100 " 11I W..... 14.88 155 East............. 37.00 46 N.621 ". 10.75 101 "30 ".... 18.00 156 North........... 40.00 47 " 88 ".. 23.65 102 " 45 "....... 33.00 157 East............. 20.00 48 " 72 "... 20.60 103 "32........ 35.00 158 North........... 160.00 49 8.72*.... 4.00 104 " 10 E........ 17.00 159 East............. 20.00 50 1 E.... 3.50 105 "21 "........ 12.80 160 North........... 40.00 51 44 "...... 21.00 106 " 2 ".... 12.00 161 East............. 0 00 52 "8 W..... 13.00 107 " 1 ".... 9.00 162 North........... 40.00 53 " 31 E.... 19.00 108 "141 W... 12.40 163 East............. 40.00' 54 "161 W..... 15.00 109 " 71 "........ 11.78 164 North......... 40.00 55 " 14 ". 36.00 110 " 18.. 20.00 165 East......... 40.00 166 North........... 40.00 167 East............ 40.00 168 North........... 40.00 169 East............. 40.00 170 North............ 40.00 171 East............. 40.00 172 North........... 132.00 807.64 1,064.92 2,901.50 1, 064.92 807.64 Aggregate of exterior boundaries~of lot No. 2................................... 4,774.06 286 The United States vs. Sutter. Boundaries of lot No. 3. No. Course. Distance. No. Course. Distance. No. Course. Distanced I S. 9-' W....... 13.00 24 East........... 14.14 47 N.741~ W...... 5.60 2 391 "..... 23.50 25 S. 71k~ E........ 12.10 48 N.351 W...... 7.00( 3 "1 0 ".. 7.86 26 N.44 "....... 8.47 49 "11 "....... 12.35 4 5.... 5.00 27 "75.. 10.60 50 " 5....... 10,00 5 " 16- E....... 14.00 28 8.72 "...... 27.40 51 "22 "........ 19.18 6 "38{ ".. 7.60 29 N.41 "...... 11.00 52 " 51 "........ 15.401 7 "51... 25.00 30 S. 79 ". 9.00 53 S. 73 "...... 18.55 8 " 51 W....... 25.50 31 " 9 "... 35.00 54 "64 "......... 8.00 9 " 62 ".. 12.80 32 "55 "....... 26.11 55 " 74 ".. 9.43: 10 " 23 "..... 7.62 33 N. 60.... 13.00 56 N. 89 "..0.0 1 "18 E....... 29.00 34 22 "... 20.18 57 "78 "....... 13.00 12 "22 "........ 18.00 35 2 W... 31.00 58 " 12 "........ 10.00 13 " 21 "....... 17.09 36 "57 E....... 19.50 59 "26 "....... 20.25 14 " 20W "........ 11.00 37 "46* "........ 15.38 60 " 48 "....... 26.60 15 " 141 "....... 15.75 38 8.80 W..... 9.75 61 "311 "........ 27.60 16 " 26 ".. 15.00 39 N. 69 " 4.50 62 " 5 "...... 8.00 17 l10 W.... 13.30 40 " 9, ",.., 11.50 63 " 27........ 5.70 18 "481 ".. 10.00 41 " 1....... 19.50 64 "731 "........ 28.75 19 " 6 E....... 39.00 42 "19~ ".... 12.50 65 72 "........ 50.26 20 " 49{ "........ 34.03 43 " 9 "....... 19.00 66 North........ 24.50 21 " 781 "........ 24.00 44 "28, ".... 22.00 67 West......... 308.20 22 "81 ".. 20.30 45 " 8 ".. 17.50 68 8.89 W....... 156.90 23 "85* ",.. 10.80 46 " 39 W..... 4.00 399.15 373.13 805.27 373. l 399.15Aggregate of exterior boundaries of lot No. 3.............................. 1,577.55& Boundaries of lot No. 4. No. Course. Distance. No Course. Distance. No. Course. Distance. No. Course. Distance, 1 5.350 W. p0.17 28 S.63-~ E.. 11.00 55 S.23{* E.. 14.0 82 S. 38 1 12.00 2 " 20 ".' 11.90 29 " 87 ". 10.00 56 " 27'".. 33.00 83 " 91 W. 13.00 3 "14 E.. 17.00 30 "63 " 12.40 57 " 53 ".. 12.00 84 South..... 13.00 4 "21 "" 9.80 31 N.841 " 14.00 58 " 58* ".. 11.00 85 8.44 E.. 16.00 5 "401 ".. 650 32 "57 " 7.80 59 "68 ".. 44.60 86 "17".. 12.00 6 "15 W' 33.1 33 " 29 ".. 15.00 60 "82 ".. 21.00 87 "17 W. 30.00 7 "16* E.. 11.00 34 " 46* ". 12.46 61 "88 ".. 7.00 88 " 2* E. 34.00, 8 "181 ". 25.66 35 8.741 ". 8.19 62 " 33*1.. 9.50 89 " 54 "1 9.00 2 " 25.80 36 15 " 6.00 63 37 21.00 90 "..20 7.00 O1 2L9 it" 18.00 37 "10 W. 14.00 64 191 ".. 8.00 91 " 22 W. 14.55 11 " 201.. 18 00 38 " 28 " 29.40 65 " 33* ".. 31.50 92 " 11 E.. 29.00 12 " 1} W. 42.79 39'36* " 25.40 66 "26'.. 16.00 93 "47 W. 34.50 13 " 71 E.. 17.55 40 "30 " 12.00 67 " 141 E.. 17.00 94 "50 ". 55.3-2 14 " 31 ". 21.53 41 "28 ".. 31.38 68 "191 ".. 12.00 95 N.841I".. 12.88 15 " 241 " 11.00 42 "36 ". 57.57 69 " 34 ".. 7.00 96 " 4.2 19.00 16 " 49 " 10.00 43 " 82 " 7.17 70 " 91 ".. 34.53 97 North..... 58.81 17 | 29' ".. 9.00 44 23 " 15.40 71 South9... 13.00 98 West.... 2000 18 " 31 29.75 45 " 14 ". 15.20 72 S. 11* E.. 14.00 99 North..... 480.00 19 " 16 "4 21.65 46 SoUth...... 30.00 73 " 8.. 12.40 100 West.... 40.00 20 " II W 27.00 47 S. 3 E.. 20.15 74 III.. 35.15 101 North..... 80.00 21 " 16i " 29.50 48 " 2* " 58.78 75 "131 ".. 42.65 102 West..... 40.00 22 " 51 ".. 14.00 49 "13 " 20.53 76 " 71 ".. 31.95 103 N. 1*E.. 480.00 23 " 25 " 36.00 50 " 77 W 1 3.50 77 South..... 39.00 104 N. 0W. 360.00 24 "11* ".. 6.00 51 " 7 E 12.75 78 S. 7* E.. 10.00 105 West.... 40.00 25 "20 " 16.00 52 "24 W. 20.94 79 8outh.... 28.00 106 N 0* W. 144.50 26 " ".. 20.00 53 "14 " 13.00 80 8. 16 W. 25.00 107 N.89 E.. 88.65 27 "11* E..| 9.00 54 outh...... 30.00 81 S.18 W. 9.00 527.70 584.02 559.281 2,143.21 5.9.28 584.02 527.70 Aggregate of exterior boundaries of lot No. 4....3................................ 3,814.21 The United States vs. Sutter. 28T Boundaries of lot No. 5. No. Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance. I N.15~~ W. 36.40 37 N.85~ W. 16.00 73 N.29~~ E.. 32.20 109 S.59,~E.. 20.71 2 " 20 ".. 3.60 38 " 59 ".. 10.00 74 "361 ".. 16.58 110 N.57* ".. 35.00 3 S3 "..[ 16.46 39 " 401 ".. 9.80 75 " 26 ".. 23.55 111 S. 24 ".. 124.00 4," 27 ".. 5.00 40 ", 38 ".. 25.50 76 23 ".. 60.40 112 I" 14 W. 69.50 5 " 391 ".. 3.00 41 " 341 ".. 27.80 77 " 199 ".. 12.00 113 " 71 ".. 33.50 6 " 50 ".. 1:.60 42 "34 ". 18.00 78 " 10, ".. 11.83 114 " 22- E.. 45.50 7 " 61 ".. 12.20 43 " 49 ".. 41,00 79 " 4, W. 16.00 115 " 74- ".. 45.00 ~8 " ~731 100 ~W 6 117 45.00 "738 ".. 10.00 44 "491 ".. 46.60 80 "181 ". 39.75 116 N.88 ".. 24.00 9 I"78 ".. 19.18 45 " 451 "I.. 49.60 81 " 40' E.. 11.59 117 " 45 ".. 29.00 10 "80 "... 11.00 46 "28 ".. 40.00 82 ["45 ".. 36.00 118 8. 691".. 74.00 1I "851 "..2 9.44 47 "18 ".. 11.00 83 8.54 ". 19.36 119 East...... 255.59 12 S. 8 ".. 5.40 48 " 9 ".. 21.00 84 " 44* ".. 9.70 120 South..... 80.00 13 N.86. ".. 15.00 49 " * EB.. 23.60 85 South...... 79.80 121 S, 75 W.{ 19.60 14 8.76 ".. 20.50 50 /"16* ".. 14.65 86 East....... 7.50 122 " 50* ".. 15.00 15 " 62 ".. 14.50 51 " 301. 9.86 87 S. 36 W. 73.00 123 "t 251 ".. 21.00 16 " 53 "..1 7.00 52 " 44 ". 52.65 88 " 27 ".. 112.00 124 I 47 ".. 6.00 17 " 38 ".. 13.20 53 " 391 ".. 114.00 89'" 16 ". 148.00 125 " 861".. 3.50 18 N431-.I 13.50 54 " 121 ". 33.60 90 " 1* E.. 96.00 126 N. 59 ".., 6.00 19 N.82 ".. 8 7.00 55 " 12* ".. 105.00 91 " 16 ". 40.00 127 " 421 ".. 20.00 20 51.. 15.00 56 " 20* ".. 88.45 92 " 56 ".. 18.00 128 " 331 ".. 17.00 21 "46 ".. 12.00 57 " 71 W. 42.40 93 " 18 ". 30.00 129 " 21 ".. 27.00 22 " 37 ".. 15.00 58 " 23 ".. 35.20 94 " 511 ". 133.00 130 " 10* ".. 8.00 23 "35 ". 16.00 59 321 ".. 46.20 95 " 281 ".. 40.00 131 / 39 "..1 17.00 24' 27 ".. 35.95 60 " 461 ".. 19.50 96 " 20 ". 41.16 13 " 49*1".. 10.00 25 " 101 ".. 28.20 61 " 54 ".. 24.27 97 " 1 W. 48.00 133'~ 65 ".. 35.00 26 " 01 ".. 33.40 62 " 65 ".. 16.00 98 " 12 ".. 90.00 134 " 761.. 16.00 27 " 4* ". 23.:jO 63 " 681 " 25.40 99 " 201 ".. 110.00 135 " 87 ".. 33.00 28 " 71 ".. 26.50 64 " 46* ".. 37.40 100 " 9' ".. 44.31 136 S. 60*".. 9.00 29 161 ".. 25.25 65 " 32,.. 4.920 101 " 40* ".. 113.90 1117 31 E.. 15.00 30 "11.. 18.40 66 12. 66.00 102 " 441.. 29.60 138 " 521.".. 25.00 31 " 181 ".. 32.00 67 "~ 23. ". 25.00 103 "17.. 14.00 139 " 25* ".. 4.00 32 " 591 ".. 40.10 68 4,1.. 83.30 104 " 13* E.. 40.00 140 " 16* W. 7.00 33 " 761 ".. 15.00 69 " 181 E.. 49.40 105 " 391 ".. 80.00 141 40".. 6.50 34 S. 70 ".. 11.00 70 " 12 ".. 41.74 106 " 46 "~. 24.00 14'2 " 71 ".. 6.00 35 491 ".. 20.00 71 " 16*,.. 22.50 107 " 411 ".. 85.50 143 " 76 ".. 12.00 36 " 55 ".. 24.00 72 " 171 ". 46.50 108 83 " 10080 144 " 66 19.00 627.48 1,387.62 1,917.53 1,193.40 1, 9i7.53 1,387.62 627.48 Aggregate of exterior boundaries of lot No. 5..5...03................................. 5,126.03 The field-notes of the " New Helvetia Rancho," and from which this plat has been made out, have been examined and approved and are on file in this office. J. W. MANDEVILLE,: UT. 5. Surv'r Gen'l, Cal'a. U. S. SURVEYOR GENERAL'S OFFICE, San Francisco, California, February 18th, 1860. U. S. SURVEYOR GENERAL'S OFFICE, San Francisco, California. I certify this to be a full, true, and correct copy of the original plat on file in this office of the official suivey of the rancho " New Helvetia," finally confirmed to John A. Sutter. ~ In witness whereof, I have hereunto signed iny name and caused the seal of this office to be affixed this 27th SEAiL.] day of February, 1860. ^^E i LJ. W. MANDEVILLE, U. S. Surv'r Gen'l, Cal'a. 19 Exceptions to survey and intervention of R. Gelston. District court of the United States for the northern district of California. THE UNITED STATES ) vs. Intervention of Roland Gelston. JOHN A. SUTTE R. And now comes Roland Gelston, a sub-claimant under said Sutter, and, by the permission of the court, intervenes in this case, and excepts to the survey made and returned therein, upon the following grounds: 1st. That the survey does not include the lands called for by the grant of the place called "NeW Helvetia" to the original claimant, John A. Sutter. 288 The United States vs. Sutter. 2nd. That the survey includes lands subject to overflow by the currents and swellings of the rivers, and which are not called for by said grant, but are expressly reserved and excepted from its operation, and that the survey embraces such lands to the exclusion of a large portion of lands called for by said grant, and which are not subject to overflow. 3rd. That the survey includes lands outside of the limits of said grant, and excludes lands well known to be within the limits thereof, and always claimed and occupied by the grantee, and fully'20 recognized by the Mexican government as belonging to him. 4th. That said survey excludes firm and dry land plainly within the limits of said grant, and as such claimed and occupied by the grantee, and as early as November, A. D. 1849, sold by him to this intervenor and another; the same being all that portion of said grant situated on the southern bank of the American river, and bounded on the east by the "Leidesdorf Grant," so called, and extending westerly along said river about five miles to the southerly corner of Norristown. 5th. That said survey includes swamp and overflowed lands, which are expressly excepted from the operation of said grant. 6th. That the land included in said survey is not taken in that compact form whichthe grant allows and the law demands. Wherefore said Gelston prays that said survey be set aside, and a second survey be ordered by this hon. court, which shall, in fact, include the lands granted to said Sutter by virtue of the " New Helvetia grant," and exclude all lands which have been wrongfully embraced by said survey, and that such other and further relief be 21 granted as the court may deem equitable. EL1IHU JOHNSON, Att'y for said Intervenor. Endorsed: Filed March 19, 1860. W. H. CHEVERS, Clerk. Exceptions to survey by intervenor, E. F. Gillespie. District court of the United States for the northern district of California. JOHN A. SUTTER ) vs. No. 319 dist. court. No. 92 land common. THE UNITED STATES. In the matter of the survey of the land confirmed in this cause. Eugene F. Gillespie, intervening herein by leave of the court heretofore granted, excepts to the survey made and returned to this court by the surveyor general of the United States for the State of California, and presents the following objections thereto: 1st. That the line run as the southern line-that is to say, the line running from the Sacramento river to the American river, as the same is run by the said surveyor general, and delineated on 22 the map returned by him-is not run in conformity to the grant, nor to the map or diseno therein referred to, nor to the testimony of Vioget, nor in conformity to the decree of the Supreme Court of the United States. The United States vs. Sutter. 289 2nd. That the said southern line is not the same, but is materially different from the line actually run by Vioget, and marked on the ground and delineated on the map referred to in the grant, and constituting part thereof. 3rd. That the said southern line is incorrectly run. CROCKETT AND CRITTENDEN, Att'ys for E. F. Gillespie. Endorsed: Filed March 21st, 1860. W. H. CHEVERS, Clerk. Objections to survey by A. & C. Cadwalader, under intervention of E. F. Gillespie. In the district court of the United States for the northern district of California. JOHN A. SUTTER ) vs. THE UNITED STATES. In the matter of the confirmation of the survey of eleven 23 leagues of land to John A. Sutter. Here comes Allen and C. Cadwalader, under the intervention of E. F. Gillespie, and file the following objections to the survey herein made and returned to this court by the surveyor general of tho United States for California. 1st. Because lot five, (5,) as shown upon the map of the survey, is excluded by the surveyor general in his location of the eleven leagues of land confirmed to claimant, when of right the same should be ineluded. 2d. The survey is not in conformity with the confirmation, or the calls of the Alvarado grant, as explained by the map accompanying it, inasmuch as it represents two distinct and unconnected tracts of land about twenty miles apart, and not the single tract granted by the Mexican government to John A. Sutter under the name of " Nueva ]ielvetia. " 3d. The survey is incorrect, and should be set aside, or so modified as to embrace that tract of land described upon the map of the survey, as section or lot numbered five, (5,) or to include the strip of land shown upon the Vioget map, as lying on the east bank of the 24 Sacramento between the American and Feather rivers. We herewith submit copies of two deeds showing our interest, the rejection of or modification of the present survey; to the end that the same shall be so executed as to embrace the tract of land described in said conveyance from Eugene F. Gillespie, under which we hold the title that John A. Sutter acquired from the Mexican government under and by virtue of the Alvarado grant. [REC. ccLVTII, D. T. 1862.]-19 290 The United States vs. Sutter. Wherefore, we pray for a day in court to establish what we have alleged, and that said survey be rejected or modified, so as to obviate the objections hereinbefore made. ALLEN CADWALADER, C. CADWALADER, By GEO. CADWALADER, Their attorney. SAN FRANCISCO, March 21, 1860. It is hereby stipulated and agreed that the foregoing may be filed as part of the exceptions of E. F. Gillespie, an intervenor herein. CROCKETT & CRITTENDEN, Atty'sfor E. F. Gillespie. John A. Sutter and wife to Robinson, Fowler, and Gillespie.-Deed. This indenture, made and entered into this 11th day of June, in the year one thousand eight hundred and fifty, between John A. Sutter and Ann, his wife, of Hock Farm, in the county of Sutter and State of California, of the first part, and Henry E. Robinson, John S. Fowler, and Eugene F. Gillespie, of Sacramento city, in the State aforesaid, of the second part, witnesseth: That the said John A. Sutter and Ann, his wife, for and in consideration of the sum of fifteen thousand dollars, lawful money of the United States, to them in hand paid by the said parties of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, and sold, aliened, released, and conveyed, and by these presents do grant, bargain, and sell, alien, release, and convey, unto the said Henry E. Robinson, John S. Fowler, and Eugene F. Gillespie, their heirs and assigns forever, all of their right, title, and interest whatsoever, whether at law or in equity, of, in, and to that certain tract or parcel of land lying on the east side of the Sacramento river, commencing on the south at the intersection of said river and the American river, thence running 26 northward and following the meanderings of said Sacramento river to the tract on said river embraced in the limits of what is known as the city of Vernon; thence easterly, in a line running at right angles with the general course of said river, one league; thence southwardly, on a line running parallel with and equidistant from the course and meanderings of said river until it intersects the American river; thence with said river and its meanderings to the place of beginning; containing, say, five square leagues, more or less, it being intended by these presents to convey all the interests of the said parties of the first part of, in, and to the aforesaid tract of land, notwithstanding the true boundaries of the same may extend beyond the eastern boundary, as above defined, together with all the rights, privileges, hereditaments, and appurtenances thereunto belonging. To have and to hold the said tract of land, and ail the interests hereby conveyed, unto the said Henry E. Robinson, John S. Fowler, and Eugene F. Gillespie, to the only proper use and behoof of them and T17e United States vs. Sutter. 291 their heirs and assigns forever. And the said John A. Sutter, for himself, his heirs, executors, and administrators, the said tract of land hereby conveyed unto the said Henry E. Robinson, John S. 27 Fowler, and Eugene F. Gillespie, their heirs and assigns, against the claim or claims, demand or demands, of all and every person whatsoever, doth forever warrant and defend by these presents. In testimony whereof, said John A. Sutter and Ann, his wife, have hereunto set their hands and affixed their seals, the day and year first above written. J. A. SUTTER. N. SUTTER, nee DUBELO. As to John A. Sutter, in presence of W. R. McCracken, H. Bigelow. As to N. Sutter, in presence of Gabriel Zinskey, Benj. F. Washington. STATE OF CALIFORNIA, Sacramento County, ss: I hereby certify that on this the 20th day of June, 1850, personally appeared before me, a notary public in the county aforesaid, John A. Sutter, known to me to be the person described in and who executed the annexed conveyance, and acknowledged that he executed the same freely and voluntarily, for the purposes therein mentioned. In testimony whereof, I have hereunto set my hand and affixed my [S ] seal ofoffice the day and year aforesaid. SEa~L.] 1UBENJ. F. WASHINGTON, Notary Public. STATE OF CALIFORNIA, County of Sacramento: I hereby certify that on this the 20th day of June, A. D. 28 1850, personally appeared before me, a notary public in and for said county, Ann Sutter, known to me to be the person whose name is subscribed to the annexed conveyance'as a party thereto, and being examined by me privily and apart from her husband, and having the contents of the said conveyance fully explained to her, she acknowledged that she executed the same freely and voluntarily, without fear or compulsion or under influence of her husband, and that she did not wish to retract the execution of the same. Given under my hand and notarial seal this day and year [SEaL.] aforesaid. BENJ. F. WASHINGTON, Notary Public. Recorded June 21st, 1850, at 8 o'c. a. m. TH. J. ABY, Dept. Recorder. STATE OF CALIFORNIA, County of Sutter, ss: On this 8th day of July, A. D. 1850, personally appeared before me, a deputy recorder in a:d for said county, Ann Sutter, (wife of 292 The United States vs. Sutter. John A. Sutter,) known to me to be the person whose name is sub, scribed to the within conveyance as a party thereto, and being examined by me privitly and apart from her husband, and having 29 the contents of the said conveyance fully explained to her, she acknowledged that she executed the same freely and voluntarily, without fear or compulsion or under influence of her husband, and that she did not wish to retract the execution of the same. In testimony whereof, I hereunto set my hand and affix my private [SEAL.] seal the day and date aforesaid. [SEAL.] G. W. LAWRENCE, Dept. Recorder for Sutter Co. This acknowledgement recorded July 23d, 1850, at 6 o'c. p. m. TH. J. ABY, Dept. Recorder, Sacramento County, Cal. STATE OF CALIFORNIA, County of Sutter, s88 On this 8th day of July, A. D. 1850, personally appeared before me, a deputy recorder in and for said county, John A. Sutter, known to me to be the person described in and who executed the within instrument, and duly acknowledged the same to be his free and voluntary act, for the uses and purposes therein mentioned. In testimony whereof, I hereunto affix my name and private seal [SEAL. the day and date aforesaid. LSEBL.- L. W, LAWRENCE, Dept. Recorder for Sutter Co. 30 This acknowledgement recorded July 23d, 1850, at 6 o'c. p. m. TH. J. ABY, Dept. Recorder. STATE OF CALIFORNIA, County of Sacramento, ss: I, John L. Craig, co. recorder in and for said county, hereby certify that the above and foregoing is a full, true, and correct copy of an;nstrumtent as appears on record in my office in book'D," of deeds, on pages 189 and 190. [SEAL. Witness my hand and the seal of said recorder's office, this SEAL.] 22d day of June, A. D. 1855. JOHN L. CRAIG, Co. Recorder, Sacramento County, By NAT. RENNIL, Dep'ty. This deed, made this sixteenth day of October, in the year eighteen hundred and fifty-five, between Eugene F. Gillespie, of the city and county of Sacramento, in the State of California, party of the first part, and Allen Cadwallader and Charles Cadwallader, of the city, county, and State aforesaid, parties of the second part, wit31 nesseth: That the said party of the first part, for and in coL. TIle United States vs. Sutter. 293 sideration of the sum of eight thousand dollars, to me in hand paid by the said parties of the second part, the receipt whereof I do hereby acknowledge, have given, granted, bargained, remised, released, and forever quitclaimed, and by these presents doth give, grant, bargain, sell, remise, release, and forever quitclaim, unto the said parties of the second part, and to their heirs and assigns forever, all that certain piece or parcel of land situate, lying, and being in the countys of Sacramento, Placer, and Sutter, in the said State of California, and known and described as that piece or parcel of land lying and being between the American and Feather rivers, commencing on the south at a point on the Sacramento river, at the northwestern corner of Henry E. Robinson's tract of land, as set forth and described in a certain deed from John S. Fowler and Eugene F. Gillespie to said Henry E. Robinson, dated the 23rd day of August, A. D. 1853; the said tract of land belonging to Henry E. Robinson being the southern boundary of the tract of land herein deeded, commences at a point on the Sacramento river, at a place commonly called Wilson's or Fowler' s slough, or the northwestern line of Muldrow and McKee's 32 land, and extends with the meanderings of the river Sacramento, northward, four nineteenths of the distance from said slough to the mouth of Feather river; this tract of land herein deeded commencing on the Sacramento river at said Robinson's northern line, runs and extends in a northwesterly direction, along and with the meanderings of said Sacramento river, to a point on said Sacramento river eight miles distant from the point of starting by the meanders of said Sacramento river; thence, running at right angles with a direct line drawn from the place of beginning to said last-mentioned point towards the interior one and one-half miles; thence running southerly and parallel with said Sacramento river at a distance from said river of one and one-half miles to a point, whence a line a right angles to the place of beginning will be one and one-half miles long; thence from the last-mentioned point one and one-half miles to the point of starting; said tract of land fronting upon and following the meanderings of said Sacramento river eight miles long, and is in all places one and one-half miles in depth or width: to have and to hold 33 the premises hereby conveyed, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the revision and revisions, remainder and remainders, rents, issues, and profits thereof. And also all the right, title, and interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the above described premises, and every part and parcel thereof, unto the said parties of the second part, and to their heirs and assigns forever. And the said party of the first part, for himself, his heirs, executors, and administrators, does hereby promise, covenant, and agree to and with the said parties of the second part, their heirs and assigns, by these presents that he, the said party of the first part, has not heretofore done, committed, or wittingly and willing suffered to be done or committed any act, matter, or thing whatsoever, whereby the premises 294 The United States vs. Sutter. hereby granted or conveyed, or any part thereof, is, are, or shall or may be impeached, charged or incumbered in title, charge, estate, or otherwise howsoever. And the said party of the first part, for himself, his heirs, executors, and administrators, covenants and agrees 34 to and with the said parties of the second part that he, the said party of the first part, his executors and administrators, and heirs, shall and will warrant and defend of the said tract or parcel of land, from the said river frontage for the distance of three-quarters of one mile at all points interior, against the claim and title of the government of the United States of America, but none other, unto the said parties of the second part, their heirs and assigns forever. EUGENE F. GILLESPIE. [L. s.] STATE OF CALIFORNIA, County of Sacramento, ss: Personally appeared before me, a notary public in and for said county, upon this sixteenth day of October, in the year eighteen hundred and fifty-five, Eugene F. Gillespie, known to me personally to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. Witness my hand and notarial seal. JAMES B. MITCHEL, Notary Public. 35 Endorsed: tiled March 21st, 1860. W. H. CHEVERS, Clerk. Deedfrom Sutter to Sam. Brannan, and objections of Brannan to survey. JOHN A. SUTTER) to. Deed. SAMUEL BRANNAN. This indenture, made and entered into this eleventh day of May, in the year of our Lord eighteen hundred and forty-nine, by and between John A. Sutter, jr., of Sacramento city, Territory of California, of the first part, and Samuel Brannan, of the town of San Francisco, Territory of California, of the second part, witnesseth: That the said John A. Sutter, jr., for and in consideration of the sum of two thousand dollars to him in hand paid by the said Samuel Brannan, (the receipt whereof is hereby acknowledged,) hath bargained and sold, and by these presents doth bargain and sell, unto the said Samuel Brannan, his heirs and assigns forever, certain real estate situate, lying and being in the district of Sacramento, Territory of California, and known and described as follows, to wit: two (2) miles square of land on the west side of Feather river, starting one mile south 36 of the ranchori Olush, and running two miles north along the west bank of Feather river; from thence two miles west; from thence two miles south; and from thence two miles east, to the point of starting; said land to be located, marked, and surveyed, by and for The United States vs. Sutter. 295 the said Samuel Brannan agreeable to his pleasure. To have and to hold the above said premises, with all the appurtenances, rights, and privileges unto him, the said Samuel Brannan, his heirs and assigns forever; and the said John A. Sutter, jr., for himself, his heirs, executors and administrators, doth further covenant to and with the said Samuel Brannan, his heirs, executors, administrators and assigns, that the title to the foregoing premises he will forever warrant and defend against the claim or claims of all and reiterated in original, and every person or persons whoever. In witness whereof, the said John A. Sutter, jr., has hereunto subscribed his name and affixed his seal the day and year aforesaid. JOHN A. SUTTER, JR. [SEAL.] Signed, sealed, and delivered, in presence ofJEREMIAH SHERWOOD. W. D. M. HOWARD. 37 TERRITORY OF CALIFORNIA, City and District of Sacramento, ss: Be it known that on this eleventh day of May, A. D. 1849, before me came John A. Sutter, jr., known to me to be the person whose name appears signed to the foregoing deed, as having executed the same, who acknowledged his said signature to be genuine, and the said instrument to be his free act and deed, for the purposes, therein mentioned. Before me. FANK BATES, 1st Alcalde, Sacramento District. STATE OF CALIFORNIA, Sacramento County: On this 12th day of June, A. D. 1850, personally appeared before me, Lewis A. Birdsall, recorder in and for the county aforesaid, John A. Sutter, jr., to me known to be the person who executed the foregoing instrument of writing, and who acknowledged that he executed the same freely and voluntarily for the uses and purposes therein set forth. Given under my hand and seal the day and year last above written. [SEAL.] L. A. BIRDSALL, Recorder. 38 Received for record May 14th, 1849, at 2 o'clk p. m., and recorded in liber A of deeds, pages 46 and 47. HENRY A. SCHOOLCRAFT, Recorder of Deeds for Sacramento City, California. Filed for record May 30, 1850, at 10 io o'clk a. m., and duly recorded in book C of deeds, page 307. LEWIS A. BIRDSALL, Recorded Sac'to Co., Cal. Pr. TH. J. ABY, Dep'ty. 296 Tlhe United States vs. Sutter. Came into office for record July 5th, A. D. 1850, 2.32 o'clock p. m., and duly recorded in book "A,'" fol. 62 and 63. G. W. LAWRENCE, Dep. Recorder. STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxar, county recorder in and for Sutter county, do hereby certify that the above and foregoing is a full, true, and correct copy of an instrument of writing now of record in my office in book "A" of deeds, at pages 76 and 77, (as transcribed.) Witness my hand and official seal this March 9, 1860. [SEAL.] C. E. WILCOXAR, Co. Recorder, Sutter County. 39 By S. J. STABLER, Deputy Recorder. In the district court of the United States of the northern district of California. JOHN A. SUTTER ) vs. THE UNITED STATES. In the matter of the survey in the above-stated case of the grant of New Helvetia, made by the Mexican government on the 8th day of June, 1841, and finally confirmed to said Sutter by the Supreme Court of the United States to the extent of eleven leagues, which said grant has been surveyed and the survey returned into court by the surveyor general of the United States for the State of California, Samuel Brannan, a claimant under said Sutter, by virtue of a deed from him to John A. Sutter, jr., and dated, and also by virtue of a deed from John A. Sutter. jr., to said Brannan, dated May the 11th, 1849, and duly recorded in the county of Sutter, a certified copy of which is hereunto attached, and marked Exhibit A, comes into court and objects to said survey, and asks that the same 40 may be set aside on the following grounds: 1st. The survey returned by the surveyor general does not conform to the grant and map thereto attached, nor to the decree of confirmation of the Supreme Court of the United States. 2nd. Said survey is not in a compact form, as required by law and the rules of the General Land Office of the United States. 3rd. Said survey does not embrace the land conveyed by John A. Sutter and John A. Sutter, jr., as above stated, although the same is embraced within the grant and map thereto attached, made by the Mexican government to said Sutter, as above set forth. 4th. Said Samuel Brannan objects to said survey for the reason that it includes lands north and west and east of the tract by him claimed, held under younger conveyances from John A. Sutter, and not rightfully embraced within the survey of said grant; therefore he The United States vs. Sutter. 297 prays that the survey already made be set aside, and another ordered in conformity to law and said grant and the decree of conformation of the Supreme Court of the United States. S. BRANNAN. 41 Personally appeared Samuel Brannan, who, being duly sworn, makes oath and says that the original deed of John A. Sutter, jr., to him above referred to, has been by this affiant lost or mislaid and is not now within his control; affiant further states that the deed from Jno. A. Sutter to Jno. A. Sutter, jr., is not in his possession nor under his control, and that he cannot produce the original. S. BRANNAN. Subscribed and sworn to Ap'l 4, 1860, before me. [SEAL.] H. HAIGHT, Notary Public. Endorsed: Filed April 4, 1860. W. H. CHEVERS, Clerk. Affidavit and exceptions of L. Sanders, jr., to survey. United States of America, district court of the United States for the northern district of California. JOHN A. SUTTER vs.. No. 319. Dist. court. THE UNITED STATES. J In the matter of the survey of the land confirmed in this cause, 42 L. Sanders, jun'r, intervening herein by leave of the court heretofore granted, excepts to the survey made and returned to the court by the surveyor general of the United States for the State of California, filed February 27th, A. D. 1860, and he hereby presents the following exceptions and objections thereto: 1st. The southern line is not conformable to the grant nor to the map returned by him, nor to the map and decree therein referred to, nor is it in accordance with the testimony, nor in conformity with the decree of the Supreme Court of the United States: 2nd. That the survey is not the same, but is materially different from the line actually run by Vioget, and marked on the ground and delineated on the map referred to in the grant, and constituting part thereof; that the eastern boundary commences on the American river, Patterson, and has been so recognized by the Leidesdorff's survey, made by the United States, which the survey herein abandons. 3rd. That the American river is the northern boundary of all the portion of said grant that lies south of that river from Leidesdorff's survey to its intersection with the Sacramento, thence down the same at low-water mark to the place of beginning of said southern line from the last-mentioned river, yet said survey leaves out a 43 considerable tract on the American river on the south side thereof, between the western boundarys of Brighton ard the 298 The United States vs. Sutter. western boundary of Leidedorff's survey; and also the said survey so returned in this case leaves out a tract called Sutter's lake, an original slough from the American river, within the city limits of Sacramento, now filling up on each end; also a slip of land at and adjoining the southern end of Sirle's bridge, also a tract of land on the south side of the American river, which is without aly authority, as the same has long since been claimed, settled upon, and sold, by the said John A. Sutter, and others holding by, through, or under him. 3rd. That the whole of said survey is made in disregard of the ruling and decision of the Supreme Court of the United States. L. SANDERS, JUN'R, As Trustee of John A. Sutter and himself in his own right. UNITED STATES OF AMERICA, Northern District of California: The affidavit of L. Sanders, jun' r, who states that he holds as trustee of John A. Sutter, and in his own right, a considerable interest in the lands situate on the south side of the American river, within the 44 bounds of what is called the Alvarado grant, described in the case of John A. Sutter vs. The United States, late pending in the district court for the United States, No. 319, wherein is now pending the matter of the survey made and returned to the court by the surveyor general of the United States for the State of California, filed February 27, A. D. 1860, to which he is about to file his exception, to accompany this affidavit, and to which reference is had. That he holds said interests as trustee and in his own right by conveyance from P. L. Edwards and William S. Messick, former trustees of said Sutter, and in their several rights by conveyances from said John A. Sutter himself, from Eugene V. Gillespie and others, which will be used as testimony on the hearing of my intervention in the matter of said survey; and he further states that said survey omits to include a tract of land between the western bound of Brighton and the eastern boundary of what is called Patterson's tract, or the western boundary of the Leidesdorff grant; it omits and leaves out what is called Sutter's lake, within the boundaries of the city of Sacramento, a large portion of which was surveyed and sold in lots, and then sold and conveyed by said John A. Sutter. It 45 omits a tract of four or five acres near the southern end of Lesle' s bridge, in said city, and also a tract of land south of the American river and within the corporate limits of said city. In all of which affiant has an interest either as trustee as aforesaid and in his own right; that said lands are within the boundaries confirmed by the Supreme Court of the United States, and are within the survey made by the witness Vioget in said case, and as described by him in his depositions. That said omissions were made without any just authority, rule or right, as he is advised and believes. He therefore prays that said survey be amended to conform with the testimony of Vioget, whether the boundary exceeds two leagues The United States vs. Sutter. 299 or not; and that if any portion of the survey is to be reduced, let it be from the northwestern end. L. SANDERS, JUN'R. Sworn to and subscribed before me by Lewis Sanders, jr., to me [SEAL.] personally known, this 3d day of April, 1860. [^^~SEAL. ]WM. G. ENGLISH, Notary Public for Sacramento Co., Cal. Endorsed: Filed April 4, 1860, W. H. CHEVERS, Clerk. 46 Exceptions to survey by U. S. In the district court of the United States for the northern district of California. THE UNITED STATES v. i No. 319. L. C. 92. "New Helvetia." JOHN A. SUTTER. ) And now comes the United States, by their acting district attorney, Tully R. Wise, and except to the official survey of the land finally confirmed herein, made by the surveyor genieral of the United States for the State of California under the order of this court, entered December 2d, 1859, which order directed the said surveyor general to make a survey in accordance with the mandate and opinion of the Supreme Court of the United States, and to return to the clerk's office of said court, when completed, a certified copy plat of the same: in pursuance of which said order a certified copy plat of the official survey made thereunder was filed by the said surveyor general in the said clerk's office on the 27th day of February, A. D. 1860. And the United States aver: 1st. That the said survey is erroneous, because the mandate 47 of the Supreme Court affirmed the decree of the district court so far as it confirmed to the said Sutter eleven square leagues of land, and which said decree did not confirm eleven specific leagues in one tract and twenty-two specific leagues in another tract, but confirmed thirty-three leagues to be located within the boundaries described in the grants and shown on the map marked "B. P. L.," to which reference was made, which said map shows a large extent of country; whereas the said survey shows the specific quantity of eleven leagues in two tracts-one of nine and the other of two leagues-instead of showing the land delineated by map B. P. L., or Vioget map, within which the eleven leagues confirmed could be located and fixed at the election of the grantee as determined by his sales. v: 2nd. That the said survey is erroneous, because the eleven leagues confirmed is not located in a compact form, nor in accordance with the system of public surveys under the U. S. government; but instead of being located in a compact form and in one body, is located in two tracts, separated from each other by many miles of distance, 300 The United States vs. Sutter. and in contravention of the laws of the United Status and the 48 instructions of the executive department of the government governing surveys. 3rd. That the said survey is erroneous, because in that portion of the decree of the district court, affirmed by the Supreme Court of the United States, reference is had to the grant made by Governor Alvarado to John A. Sutter, dated 18th of June, 1841, which said grant in its third condition expressly excludes the land overflowed by the swelling and currents of the rivers; whereas the said survey includes a large portion of land periodically overflowed by the swelling and currents of the rivers at the time said grant was made, and excludes high and good land not subject to such prohibition. And the United States aver that all that part of the surveyed tract lying south of the American river and east of the Sacramento, within which is now situated the city of Sacramento, and all that part of the si veyed tract lying east of the Feather river and south of the Yuba, and north of township 14 N., range 4 E., as well as many othei parts of said surveyed tract, were, at the time said grant was made, subject to the overflow mentioned in the said grant, and were } said grant excluded. 49 4th. That the said survey is erroneous, because it locates two leagues south of the American river, and far distant from the other nine leagues included by said survey; whereas the said two leagues should be located north of the American river in accordance with the election made by Sutter, prior to his obtaining his alleged grant for twenty-two leagues, in his deed to Eliab Grimes, Hiram Grimes, and John Sinclair, on the 10th day of August, A. D. 1843, to wit: bounded by the Sacramento river, running northwesterly to the mouth of Feather river; the southern boundary commencing at the mouth of the American river, the said American river being the southern boundary. 5th. That the said survey is erroneous, because it includes within its lines, locating the said nine leagues, a large tract of land on the Feather and Yuba rivers about township 14, range 4 east, within which is situated the city of Marysville; whereas the said nine leagues should be located so as to join the two leagues before mentioned and form a tract of eleven leagues in one entire body, including within said nine leagues the following parcels sold by Sutter, and so elected by him out of the general limits of the tract shown on 50 said Vioget map, to wit: on the 1st Sept., 1843, to Nicholas Algeir; on the 10th day of May, 1845, to Edward A. Farwell; to Nicholas Algeir on the 13th day of September, 1849; to Henry Thomen on the 18th day of October, 1846; to Thomas J. Green on the 11th day of December, 1849; to Frederick Emory on the 10th day of December, 1849; to George W. Lawrence on the 4th day of July, 1850; to Alfred Lawton on the 11th day of April, 1850; and to James Sevige on the 1st day of January, 1850; all said tracts lying east of the Feather river and south of township 14. 6th. That the said survey is erroneous, because the eleven leagues confirmed were to be located within limits comprising a large extent The United States vs. Sutter. 301 of land, as shown on said Vioget map, and ample enough in extent to locate in a compact form the said eleven leagues confirmed, without interfering with rights acquired by citizens of the United States prior to the segregation from the whole quantity of the said eleven leagues; whereas the said survey, disregarding the rights of settlers under the laws of the United States, includes many tracts of land to which titles have been acquired under the pre-emption laws 61 of the United States, and excludes land within the limits of said map of Vioget which has not been so settled upon. Wherefore, the United States pray that an order may be entered setting aside the said survey as erroneous, and directing a new survey to be made locating the said eleven leagues confirmed, in a compact form, north of the American and east of the Sacramento and Feather rivers, excluding all lands periodically overflowed by the..elling and currents of the rivers, and with due regard to the rights usettlers under the laws of the United States, acquired prior to the segregation by the grantee, John A. Sutter, of the eleven leagues finally confirmed to him. San Francisco, April 6, 1860. TULLY R. WISE, Acting U. S. Att'y. Endorsed: Filed April 7th, 1860. W. H. CHEVERS, Clerk. Stipulation and order to take testimony at Sacramento. District court of the United States for the northern district of the State of California. JOHN A. SUTTER ) THE UNITED STATES. 52 In this case it is hereby stipulated that on the sixteenth of this month the above-named parties and those intervening shall commence taking testimony at the city of Sacramento before John B. Williams, U. S. commissioner, to be used on the settlement of the survey in this case, and that the taking of said testimony shall be continued Without interruption until finished at that place. San Francisco, Cal., 1st May, 1860. TULLY R. WISE, Acting U. S. Dist. Att'y. V. E. HOWARD, Att'y for Claimant. ELIHU JOHNSON, tt'y for R. Gelston. 302 7Te United States vs. Sutter. SAN FRANCISCO, May 16, 1860. It is hereby stipulated and agreed that the time mentioned in the foregoing stipulation be altered to the twenty-fourth day of May instant. TUILLY R. WISE, Acting U. S. Att'y. E. JOHNSON, Att'y for Gelston. V. E. HOWARD, For Claimant. Endorsed: Filed May 22, 1860. W.. CHEVERS, Clerk. 53 At a stated term of the district court of the United States of America for the northern district of California, held at the court-house in the city of San Francisco on Tuesday, the twentysecond day of May, in the year of our Lord one thousand eight hundred and sixty, for the trial of land cases. Present: the honorable M. Hall McAllister, circuit judge. THE UNITED STATES ) vs. -No. 319. JOHN A. SUTTER. J On reading and filing the stipulation hereto annexed. and on application of T. R. Wise, esq., acting U. S. attorney, it is ordered that the respective parties to this cause and the intervenors therein have leave to take the depositions of certain witnesses to be read in evidence on the final hearing of said cause before John B. Williams, U. S. commissioner, at such place in the city of Sacramento as may be selected by the attorneys of the respective parties, commencing on Thursday, the 24th day of May instant, at 11 o'clock a. m., and continuing from day to day until the same shall be concluded. And it is further ordered that the marshal of this district provide a 54 deputy to be in attendance upon the said commissioner for the purpose of serving such writs of subpcena as he may be directed to serve by said commissioner; and that the clerk of this court issue writs of subpoena for such witnesses as may be required to attend before said commissioner by the attorneys of the respective parties. And it is further ordered that the clerk of this court deliver to the acting U. S. attorney the certified copy of the plat of official survey now on file to be used at the said examination, and returned to the clerk when the same shall be concluded. M. HALL McALLISTER, Judge Cir. Court U. S., Districts of Cal. Endorsed: Filed May 22nd, 1860. W. H. CHEVERS, Clerk. The United States vs. Sutter. 303 Dep. of T. M. Logan, for U. S. United States district court, northern district of California. THE UNITED STATES vs. JOHN A. SUTTER. 55 SACRAMENTO, May 24, 1860. On this day, before John B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came T. M. Logan, a witness produced on behalf of the United States, in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land clainls in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn, and testified as follows: Present: T. R. Wise, esq., acting U. S. att'y, by Edmund Randolph, eql.; Volney E. Howard, esq., for claimant, by R. C. Clark, esq.; and for Lewis Saunders, agent for J. A. Sutter, Roland Gelston, by Elihu Johnson. Questions by the United States attorney. Questicn 1st. State your name, age, residence, and occupation. Answer- Thomas M. Logan; age, 52; residence, Sacramento; physician by profession. Q. 2. IPo you own land in Sacramento city under the title of John A. Sutter? A. I do. Q. 3. H-Fow long have you lived in Sacramento? A. Sinell: the fall of 1850. Q. 4. I iring this time have you particularly observed and kept a record of tile rise and fall of the waters of the Sacramento river? A. I have, particularly since 1856. Q. 5. Have you also during the same period noted and kept a record of the quantity of water which has fallen in each month and year? A. In each month of every year since January, 1853. Q. 6. Look at the paper which I now hand you, and state what it is. A. Hydrographic scale of the river and rains at Sacramento. It shows the highest and lowest points the river has attained during the periods thereon stated, according to the best of our information and observation. The perpendicular lines denote specially the quantity of rain that has fallen during the years and months specified by the figures attached to each line. The curves extending horizontally across the scale denote the rise and fall of the river during the years specified by figures attached to each curve. The perpendicular lines to the righti doenote the whole amount of rain which has fallen during 390 The United States vs. Sutter. each year noted since 1852. The year 1852 is, however, conjectural, We cannot speak positively respecting that year. 56 Q. 7. Explain why it is that that chart gives the height to which the waters rose in 1852, when in the note at the b6ttom you say that the measurement was made according to a gauge set in 1856. A. The chart was made for my own private purposes, and the height of the river in 1852 was set down according to the best information I could collect, for the purpose of instituting comparisons afterwards; but I will not vouch for its accuracy, having made no positive measurements or observations prior to 1856. Q. 8. From what sources did you get your information prior to the time you commenced your own accurate observations in 1856? A. From persons residing on the river banks —boatmen and others-who pointed out old water marks. Q. 9. Were your inquiries pretty thorough, and such as to satisfy your own mind at the time of the correctness of the information you obtained? A. They were not so thorough as I could have desired, but answered the general purposes which I had in view. Q. 10. I understand you, then, to say that the various points to which you have marked the waters as having risen were according to the general impression you found prevailing among the boatmen and other persons resident on the river, and also with the water marks and other indications pointed out to you? A. They were in accordance. Q. 11. Did you then refer those points, indicating high water, to the river gauge, after it was set up, and make note accordingly, as upon this hydrographical chart? A. I did. Q. 12. For what purpose did you make these observations and keep a record of them? A. Simply for scientific purposes, and without any idea that they ever would be brought into this or any other controversy. Q. 13. Was this hydrographic chart, marked Exhibit A, and attached to this deposition, prepared by your own hand, or under your immediate superintendence? A. This is a copy prepared by my own hand, and it seems to be a correct copy. I compared it with the original. Q. 14. Please explain to us how this chart is to be read, by giving a few examples. A. I will instance the year 1852. On the 1st of January, according to the chart, the river stood at nine feet above the zero of the scale set up by us in 1856. On the 10th March, 1852, it attained a height which appears to be 19 feet 10 inches. On the 20th August, 1852, it declined to its minimum, about 2 feet 4 inches above zero, and attained its maximum on the 31st of December, at which time the chart shows about 21 feet 10 inches. On the 1st January, 1853, it attained the maximum height for that year, which was a fraction higher than the day before, when the chart The United States vs. Sutter. 305 shows about 21 feet 10 inches; it then gradually declined until towards the last of March, when it stood 5 feet above zero, and then suddenly rose to 19 feet 4 inches towards the beginning of Aprilsay 2d or 3d April, perhaps-and then steadily declined to within a few inches of zero in September. At the last of December of that year it stood about 2 feet 3 inches. The monthly rain is denoted by the perpendicular black lines; as, in January, 1853, it is represented to be 3 inches. In February, 1854, the total amount is shown to have been 8 inches. During the first ten days in October, 1854, about an inch and a quarter of rain fell. In 1853 the total annual amount of rain, as measured by the rain gauge, is marked at 20 inches. In 1858, as shown by the chart, the annual amount was about 17 inches. In 1857 the lowest annual amount on the chart is shown, when it amounted to 12 inches and 8-lOths. Q. 15. I hand you now a paper, which purports to be an affidavit of yours, explaining this hydrographic chart. Is it your affidavit, are the statements therein true, and will you permit it to be filed as an exhibit to your deposition, in connection with the chart? A. It is my affidavit; it is true to the best of my knowledge, and I permit it to be filed as Exhibit B to this deposition, and as a further and detailed explanation of Exhibit A, which is the hydrographic chart. Q. 16. Can you give us the like information as to the rise and fall of the river, and the quantity of rain during the year 1859, and up to the present date? A. I have the information on record, and will endeavor to bring it on next Saturday, day after to-morrow. Q. 17. Was the river gauge set up by yourself, and where was it situated? 57 A. Prior to the one now set up by the city, it was set up near the old ice-house on Front street, between I street and the mouth of the slough north of I street. It was set up by me in 1856. The new one is at the foot of N street. Mine was washed down by one of the floods. Cross-examination. - Questions by R. C. Clarke, esq. Q. 18. State whether or not the observations made, contained in your affidavit, marked Exhibit B, as to the rise and fall of the water in the river, prior to the fall of 1850, are made from information, or from your own observation. A. They were made entirely from information. Q. 19. Do you know the height of the natural bank of the Sacramento river on the east, as compared with the river gauge mentioned in your hydrographic chart? A. I do not know. Q. 20. State the width of the Sacramento valley, east of the Sacramento river, and between that and the foot-hills of the Sierra Nevada. [REC. CCLIII, D. T. 1862.]-20. 306 The United States vs. Setter. A. I have no positive information about it. Q. 21. State the width of the Sacramento valley west of the Sacramento river, and between that and the Coast Range. A. I have no positive knowledge on the subject. Q. 22. State in what years, since the fall of 1850, the land within the limits of the city of Sacramento have been overflowed. A. In the winter of 1852-'3 and the spring of 1853-this is all I remember. By the breaking of the levee in the spring of 1852 the city was overflowed. Q. 23. State whether or not, annually, since 1850, a crop has been raised on lands within the city, and on the river front both above and below the city. [Objected to by the attorney for the United States as irrelevant; the land excluded from this grant being land that was subject to overflow in the winter time, and without reference to whether a crop could be cultivatedor not. Same objection by the attorney for Roland Gelston.1 A. To the best of my knowledge crops have been raised. Q. 24. State whether you have any knowledge of the rise and fall of the waters in the river from 1841 to 1845, and of what land was overflowed within those years. A. I have no knowledge whatever. Examination closed. THOMAS M. LOGAN. Sworn to and subscribed before me this 24th day of May, 1860. JNO. B. WILLIAMS, U. S. Commissioner. Exhibits A and B to dep. of T. I3. Logan. EXHIBIT A. See deposition of T. M. Logan. [Hydrographic scale of the river and rains at Sacramento, California. ] (Here follows map, page 57.) The zero of the scale to the left corresponds with the river gauge set up in Sept., 1856. The figure 2 agrees with the zero in our published observation up to August. The scale to the left, when applied to the curves, indicates the rise of the river from zero to the highest point it has yet been known to reach. The same scale of feet, if read for inches and applied to the perpendicular lines, will denote the monthly quantity of rain that fell at Sacramento during the last G years, the rain for 1853 and'54 being placed in the first column of each month, of 1855 and'56 in the second, and of 1857 and'58 in the third. The scale to the right represents inches, and is intended to show the comparative annual fall of rain since 1852. The United States vs. Sutter. 307 EXHIBIT B. See deposition of T. M. Logan, page 4. The rise and fall of the Sacramento river is graduated by the terms high and low water mark, or zero. A solid column, surrounded by a wind-vane, was set up by the city near the river bank, in September, 1856, when the river had attained the lowest stage ever known. The figure 2, in our hydrographic chart, agrees with the zero in our published observations up to that date. The mean depth of the channel of the river in this neighborhood is sixteen feet below the low-water mark, and the mean width of the river is about three hundred yards. There is a tidal rise and fall of about one or two feet at Sacramento, according to the course and force of the wind and the stage of the river. If the wind blows strongly from the north, this fall is still greater, especially during spring tides. When high, the river is not affected by the tides. The stage of the water is also affected by the temperature as well as by the fall of rain. The months of November, December. January, February, March and April, constitute the "rainy season," although more or less 58 rain generally falls during October and May. The first and generally the heaviest rise in the river occurs about the 1st of January, after the early rains. The warmer these rains are the less snow falls in the mountains, and consequently the more sudden is the rise of the river. From the middle of January to the middle of February there is generally a marked abatement, and sometimes a complete suspension of rain, and the river declines correspondingly. From the middle of February to the last of April the later or warmer rains set in, and cause a second or spring rise, which is kept up in accordance with the prevailing temperature. If the spring and early summer have been cold the spring freshet soon passes off, and the river maintains a high level, as it did in 1857, in consequence of the gradual melting of the snow at its sources, the converse obtaining if the hot weather sets in early. Recurring to the hydrographic scale, we would observe that the figures to the left indicate, when applied to the river, the number of feet from zero or extreme lowwater mark at spring tide, to the highest point the Sacramento has yet been known to rise, viz: nearly 22 feet in January, 1852. The curves for all the years are not complete-our notes, in former days, not being full and regular. The same scale of feet, if read for inches, when applied to the perpendicular lines, will denote at a glance, and which is most important in this connection, the monthly quantity of rain that fell at Sacramento during the last six years-the rain of 1853-'54 being placed in the first column of each month; of 1855-'51 in the second, and 1857 and 1858 in the third. The scale to the right represents inches, and:s intended to show the comparative annual fall of rain since the year 1852, our annual notes in this respect being more comprehensive than our monthly. As will readily be seen, the rains during 1856 and'57 have been so much below the average that they should be regarded as exceptional. Averaging the rains of 1852-'3-'4-'5 and'8, we find an annual fall of 20.468 inches. Whereas the average taken, with the two exceptional years 308 The United States vs. Sutter. 1856 and 1857, would give only 18.501 inches, which we have reason to believe, from comparison with the rain-charts of the United States Army Meteorological Register in this section, is about two inches less than the mean annual fall during a long series of years. Although the river is of course but slightly affected by the amount of rain that falls in this immediate locality, nevertheless the connection here preserved is of much importance, inasmuch as experience shows that the amount of rain that falls at Sacramento bears a quantitative proportion to that which is precipitated in the higher parts of the valley as well as in the mountains. Certainly the river never has attained a high stage when there has occurred a deficit of rain at Sacramento. To substantiate these assertions we condense the following facts from our publications in the Cal.fornia State Medical Journal. As therein stated, the winter and spring of 1849-'50 was a season of continual outpourings. The first settlers tell us that the rain came down in torrents, and that tubs and casks left out at night were found full and overflowing next morning. This must, of course, be taken with due allowance. There were no ombrometers in those mythical days, when the rain appears to have been as abundant as the gold. Doubtless the rains were copious; certainly they set in earlier than they have ever done since. The first rain of 1849 took place on the 23d of September. Through the latter part of December and beginning of January the rains were so heavy that serious apprehensions began to be entertained for the first time of an overflow. By Chlistmas the water was over the lower portions of the city, and on the 8th of January, 1850, it rose rapidly, and on the 10th, and for several days after, there was no dry land in town, except the knoll at the public square, which has never been overflowed. In a few days the waters subsided, and fine, dry weather prevailed until the heavy rains of March set in. On the 7th April the waters began again to run into the town, and on the 8th the council voted an appropriation of money for constructing a temporary levee, and the principal business portion of the city was thus saved from inundation. The opening half of the winter of 1850-'51 was rainless, and consequently the river remained at low-water mark until January, 1851, during which month about three-fourths of an inch of rain fell, and a corresponding rise in the river occurred. From this period the river remained very low until April 5th, when it attained, although by no means a high level, still a greater elevation than at any prior date of the season, and navigation continued open to most of the upper trading points on the Sacramento, as well as to Marysville, until the summer. The rains that fell during this interval amounted to about four inches. The rainy season of 1852-'53 commenced early, and the river rose correspondingly. By the 30th December it was up to within four feet of its natural banks, in consequence of the heavy rains which fell up to that date, amounting in the aggregate, during September, October, November and December, to about ten inches. 59 The rains of the year 1852 were well distributed among all the months of the wet season, and amounted in the aggregate to about 27 inches, The heaviest rains occurred in March and The United States vs. Sutter. 309 December, and consequently the city was overflowed both these months-the levee not proving adequate. The first of these inundations occurred on the 7th March, owing to the washing away of the embankment at the floodgate in the levee at Sutter lake, as well as to a crevasse on the American river-the waters of which were backed up by a simultaneous rise in the Sacramento river-and for one week the greater part of the city was submerged. The rains which followed the great fire of November, 1852, were the heaviest known for that season of the year of which we have any positive record. About 12 inches fell in December. Accordingly the river rose 17 inches higher than in the flood of 1850, viz: nearly 22 feet above zero, which is the highest rise that has ever occurred either of the Sacramento or American rivers. From the 25th December to the 24th January, 1853, when the waters began to retire, the city remained almost entirely submerged. During the following March the fall of rain amounted to 7 inches, and again a corresponding rise of the river occurred. On the 29th it rose 12 feet in 24 hours, and soon reached above the original banks; and backing up from a break in the levee in Sutterville, the greater part of the city was again overflowed by the 2d April, and thus remained more or less deluged until the rains subsided towards the last of May. The amount of rain that fell during the latter month was nearly one and a half inches, and the aggregate for January, February, March, April and May, and which kept up the river at so high a level, was about 17 inches. From the period to which we have thus brought down our account of the freshets of the Sacramento river, and the corresponding rains, up to the 1st January, 1859, there has been no extraordinary rise to record, as may readily be seen by a glance at the accompanying hydrographic scale. As may also be there seen, the rains during the same interval have been considerably below the average. THOS. M. LOGAN. Sacramento, Nov. 26th, 1859. The above affidavit was subscribed and sworn to before me, on this 26th day of November, A. D. 1858, by Thomas M. Logan. SAMUEL CROSS, [SEAL.] Notary Public, Sacramento County, California. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk Dep. of Jno. C. Ledlie, for U. S. United States district court, northern district of California. THE UNITED STATES ) vs. JOHN A. SUTTER. SACRAMENTO, Mlay 25, 1860. 60 On this day, before John B. Williams, commissioner of the United States for the northern district of California, duly 8310 The United States vs. Sutter. authorized to administer oaths, &c., &c., came John C. Ledlie, a witness produced on behalf of the United States in case No. 319. being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn, and testified as follows: Present: T. R. Wise, esq.; acting U. S. attorney, by Edmund Randolph, esq., Elihu Johnson, esq., for R. Gelston; V. E. Howard, esq., for Sutter, by M. Wetty. Questiows by United States attorney. Question 1. State your name, age, residence, and occupation. Answer. John C. Ledlie; my age is 50 years; residence, Sacramento; occupation has been that of house-mover, etc. Q. 2. How long have you lived in Sacramento? A. I came here in November, 1849, and have seldom been out of the city since. I first settled on Front street between N and O streets, and have lived at and about the same place ever since. Q. 3. Do you remember the high water in the winter of 1852-'3, and in the spring of 1853? A. I do. Q. 4. Did you mark the height of the water-the greatest heightand if so, how? A. I marked the greatest height of the water. My way of measuring was rather simple. There was a sycamore tree standing on the bank of the river, and stands there yet. I nailed a board on the tree, the lower edge of the board being level with the water. We thought it was at the highest, but found the water rose above the edge. We then shifted the board until the bottom edge showed the highest rise of the river, and from that point, so ascertained, I measured it. Q. 5. Have you at any time made a comparison between your mark on the tree and the river gauge? A. I had to mark the height so as to leave the mark on the tree. I think it was the next August I had to ascertain the lowest the river was. I drove a stake, the head of which came even with the top of the water when it was at its lowest that season. I nailed a board on the tree at the place of the highest water-got my spirit level levelled-got a scantling, used a piece of timber as a slide on the scantling, then sighted with the spirit level, and marked on the scantling the level. One of my men was at the stake while I was at the tree. The man at the stake held the scantling on the head of the stake perpendicularly. Q. 6. Levelling in this way from the high water mark on the tree to the scantling held perpendicularly upon the head of the stake driven down to low-water mark, how many feet did you find the 61 greatest height of the water in the winter of 1852-'3, and spring of 1853, to be above low-water mark from the river? A. I made it eighteen feet and a half. The United States vs. Sutter. 311 Q. 7. I understand you that it was eighteen and a half feet upon your scantling. Have you ever compared that with the river gauge; and if so, how would it be upon the gauge above zero, or low-water mark? A. This water gauge is marked twenty-five feet. This last winter, I think, the water on the gauge was about seventeen feet. Parties there at that time thought the gauge showed the height the water had been in the city, and there arose a controversy. I observed that twenty-two or twenty-two and a half feet was the highest. I told them I could prove it, and referred to my old measurement, and showed that when the river rose to my mark of eighteen and a half feet it would show twenty-two and a half feet on the city gauge. The distance is about one square between the site of the city gauge and my own. Q. 8. Since you have been living on the river bank, and noticing the different stages of the water, have you observed any drift wood lodged in the trees, or other natural objects indicating floods; and if so, were they higher than your mark on the sycamore tree or not? A. I am not certain. Cross-examination by attorney for Mr. Gillespie. Q. 9. State whether you own any lands within the present survey of the Sutter grant which would be affected by not being included within it. A. I do. Examination closed. J. C. LEDLIE. Sworn to and subscribed before me this 25th day of May; A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep. of Jno. Doherty for U. S. United States district court, northern district of California. THE UNITED STATES) vs. JNO. A. SUTTER. SACRAMENTO, May 25, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly %62 authorized to administer oaths, &c., &c., came John Doherty, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and 312 The United States vs. Sutter. settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn, and testified as follows. Present: The acting U. S. att'y, by E. Randolph, esq.; V. E. Howard, esq., by stipulation, and E. Johnson for R. Gelston. Questions by Mr. Randolph for the United States. Question 1st. State your name, age, residence, and occupation. Answer. John Doherty; age, 49; residence, Sacramento; and profession, civil engineer. Q. 2. How long have you lived in Sacramento? A. About nine months. Q. 3. Look at the map which I now hand you; say whether it was made by yourself; and if so, when, and for what you intended it to represent. A. It was made by me in October, 1859. I made it for the settlers, at their request-Mr. Underwood's particularly. The red line commencing at the bank of the Sacramento river, as shown on the fieldnotes, commencing at an oak tree marked by the Vioget line; thence following as per field-notes marked A on the map to station 20, near the intersection of Nineteenth and Y streets, on the boundary of the city of Sacramento; thence, according to the field-notes on the map marked B near the intersection of K and Thirty-first streets, on the boundary of the city, represents a meandering line dividing the swamp and overflowed land from the high line, as pointed out to me. The red line marked "Government line of segregation was traced by me from the United States map in the county surveyor's office. Q. 4. Explain what you mean by the figures in red ink upon this map. A. They represent the depth in feet and inches below a point marked 22 upon the river gauge at the foot of N. street: thus, at the intersection of Front and N streets, 2 feet 6 inches; Second and N streets, 4 feet; Third and N streets, 7 feet 6 inches; Fourth and N, 9 feet 5 inches; Fifth and N, 12 feet 7 inches; Sixth and N, 12 feet 6 inches; Seventh and N, 8 feet 10 inches; Eighth and N, 5 feet 2 inches; Ninth and N, 5 feet 4 inches; Tenth and N, 5 feet 9 inches; Eleventh and N, 6 feet 6 inches; Twelfth and N, 7 feet; Thirteenth and N, 7 feet 6 inches; Fourteenth and N, 5 feet 10 inches; Fifteenth and N, 6 feet 4 inches; Sixteenth and N, 5 feet 10 inches; Seventeenth and N, 6 feet 4 inches; Eighteenth and N, 7 feet 6 inches; Nineteenth and N, 5 feet 8 inches; Twentieth and N, 6 feet 7 inches; Twenty-first and N, 5 feet 8 inches; Twenty-second and N, 4 feet 4 inches; Twentythird and N, 5 feet 8 inches; Twenty-third and M, 9 feet 6 inches; Twenty-fourth and M, 5 feet 9 inches; Twenty-fifth and M, 6 feet 9 inches; Twenty-sixth and L, 7 feet 6 inches; Twenty-seventh and K, 5 feet 6 inches; Twenty-eighth and K, 4 feet 7 inches; Twenty-ninth and K, 4 feet 1 inch; Thirtieth and K, 2 feet 10 inches; Thirty-first and K, 1 foot. 63 Q. 5. You mean that when the water in the Sacramento The United States vs. Sutter. 313 river stands at 22 feet by the river gauge, that then all the points within the city of Sacramento which you have just enumerated are respectively the number of feet and inches which you have given for each of those points below the level of the water in the river? A. I do. Q. 6. And the same of all the other points in the map of the city of Sacramento, marked with figures in red ink, those figures expressing in feet and inches the level of those points below the level of the water in the river? A. I do. Q. 7. And the same of all the other portions of said map not ineluded in the limits of Sacramento city proper? A. Yes. Q. 8. The figures in red ink, then, everywhere on said map expresses the number of feet and inches at those places below the level of the water in the river when it stands at 22 feet by the river gauge? A. They do. The levels are calculated from the inclination of the plane of the river going down, and going east from the river allowance is made for curvature. Q. 9. Look at the point of intersection of Twenty-ninth and B streets, and explain what you mean by the figures there marked in red ink? A. They are taken from the American river. I was shown the point by T. K. Stewart, who was examined before me, as the highwater mark in 1853, 3 feet. They are the same series of levels, due allowance having been made for the waters of both rivers. The waters of the American are higher than the base of the water gauge, and the levels were calculated and equalized to agree with those points making a mean of both floods. Q. 10. When both the Sacramento and the American rivers are in flood at the same time, and the water in the Sacramento stands at 22 feet by the river gauge, is or is not the city of Sacramento threatened with an overflow from a somewhat higher level of water in the American river? [Objected to by attorney for Gillespie, as leading.] A. It is. Q. 11. Look at the table on the same sheet as the map of the city of Sacramento, marked "hydrographic scale of the river and rains at Sacramento, California, by Thos. M. Logan, M. D.;" and say whether it was put upon this sheet by yourself; whether copied by you from any original; and if so, what, and whether copied correctly. A. I copied it on the sheet from the original made by Dr. Logan. It is copied correctly. Q. 12. Have you or not averaged the greatest height of water for the several years marked on the said chart? and if so, what is the average or mean? A. I have, and find 17 feet 4 inches to be the average. Q. 13. Deducting 4 feet and 8 inches from the numbers marked 314 The United States vs. Sutter. on this map in red ink, what would those numbers represent, supposing there were no levees or embankments about the city? A. They would represent the difference between the level of the places on the map and the level of the water in the river when it stood at 17 feet 4 inches. Q. 14. From the figures in red ink on the map deduct 4 feet 8 inches from each, and say about how much of the area represented on said map would be overflowed when the river stood at the average high-water mark of 17 feet 4 inches. A. It would be safe to say three-fourths; it might be a little more. Q. 15. How is Sutter's fort situated with reference to the level of the land within the city? A. It is above the water mark of 22. I took the level and found it above the water mark about 6 feet, but am not positive. Q. 16. Sutter's fort, then, if I understand your map, is near your red line separating the high and dry land from the overflowed, and on a point where the high land slopes down to the land which is subject to overflow? A. It is. Q. 17. What is the meaning of the difference of shading on this map? A. The dark shading represents land that was tule before it was reclaimed. I placed it on the map from information obtained from other parties. Q. 18. Are the notes upon the map made by yourself, and are they correct? A. The field-notes and the note in red ink are mine; the note in black is not mine. Those of mine are correct, and that not made by me, upon reading it, I consider so also. 64 Q. 19. Have you any interest in the land in controversy? A. I own no land in California. [The attorney for the United States offers in evidence the map of the city of Sacramento and copy of the hydrographic chart, both on one sheet, and referred to by the witness herein, which is marked Exhibit C by the commissioner.] (Exhibit objected to by attorney for Gillespie; 1st, because it is made upon information furnished by third parties; 2d, because it is not made by any official surveyor; 3d, because it is irrelevant.) Cross-examination. Questions by attorney for Gillespie. Q. 20. State who pointed out to you the beginning and various meanderings of the red line marked on the map, which you say designates the line btween the high and the low or overflowed lands. A. I don't remember the names of all the parties. I remember Mr. Clark, Mr. Sprague, Mr. Brockway. I don't remember any more, but there were several others. Q. 21. State if you run the line, to wit, the red line, where these parties showed you was the proper place for you to put it. The United States vs. Sutter. 315 A. I did. Q. 22. State if at the point north of the place marked to designate a ridge, commencing say near the intersection of O and Twentieth streets, you did not run said red line eastwardly along a sort of ravine or slough, and whether said slough is not greatly lower than the lands immediately on either side of the same. A. There is a low place near Sutter's fort; we did not run in the bed, but followed the side of the slough on the side next to Sutter's fort. We followed on the edge of the bank and not on the edge of the water in it. I don't recollect any land lower on the side towards Sacramento. The water I speak of is at the place alongside Sutter's fort on the map. Q. 23. State upon whose authority or information, or by whose direction, you placed the dark shades or coloring upon the map to indicate what you call tule land; and in the same connection state upon whose authority or information the memoranda or note in black ink, close to field-notes "A," was placed upon the map. A. Mr. Underwood was my authority for the shaded portion of the map. I never saw the note referred to until this morning. It gives a correct description of the map. Q. 24. State if you know at what point on the city gauge, referred to by you on the map, the Sacramento and American rivers, or either, in their condition previous to the years 1850 or 1851, would overflow their banks, unprotected by levees. A. I was not here, and don't know anything about it. Q. 25. State the height of the levee of the Sacramento river as compared with the river gauge. A. The average of the levees all round is about one foot above 22 on the gauge. Q. 26. I understand you to state that the entire surface of the map made by you, so far as it pretends to exhibit the character of the land, was made entirely by the direction of Mr. Underwood; am I correct? A. The survey of the red line was made as I have before stated. The levels were taken by myself from the water gauge of 22, as before stated; and the dark shading, representing tule and trees, under the direction of Mr. Underwood. Direct resumed. Q. 27. In running your red line to divide the high and the low lands did you include any high lands, and call them low lands? [Objected to as leading.] A. I did not. Q. 28. Did you run your red line through a plain, or along at the foot of an elevation, where the land sloped up eastwardly from the valley. A. I run on the apparent dividing line (after leaving the first angle from the river at the south end of the map) between the high and the low land. From the first angle the land slopes up from the red line until No. 13 is reached, then there is low land on both sides of 316 The United States vs. Sutter. the red line until the western limit of line No. 16 is reached, after that the red line is the apparent dividing line between the low and high land. Q. 29. On the eastern side of the map the land rises, does it not? A. It does. 65 Q. 30. On the northern side, next the American river, the land is the highest, is it not? A. It is. Q. 31. On the western side, next the Sacramento river, the land is the highest, is it not? A. It is. Q. 32. On the southern portion of the map, at Sutterville, the high land comes the nearest to the river, does it not? A. It does, within about a quarter of a mile. Q. 33. Then the area represented by this map, including Sacramento city, is basin-shaped, is it not? [Objected to as leading.] A. It is-as the levels represent. Q. 34. I ask you now, as a civil engineer, whether, when this tract was in its natural condition, to wit, without the mounds and levees, upon the subsiding of the floods the water would not be left in lagoons and ponds throughout this basin? A. The natural result would be that the greater portion of the water would go down south. All below the level would necessarily remain and go off by evaporation. If there were any ponds below the level the water would remain. Q. 35. When you were making this survey some weeks ago, did you not have occasion to observe that there were many inequalities in the slope of this basin to the south, and that even the rain-water remained in ponds and lagoons. A. I don't remember that. I know that the surface on the east side of the Sutterville road is even; on the west side of the cemetery it is broken. Q. 36. How was it at the north part of the city, in the bend of the American river. A. Near the intersection of A and Fourteenth streets, outside the levee, between that and the American river, we could not level on account of the water. Q. 37. I will ask you one more question, as a civil engineer: whether the construction of reservoirs and ditches in the mountains, and the cultivation of lands throughout the State, do not necessarily have the effect of diminishing the height of the floods in the rivers, given the same quantity of rain as before such cultivation and construction. A. The waters at the source being necessarily spread over a larger surface would have that effect. Cross-examination resumed. Q. 38. I ask, if, in running the red line, before spoken of, you did not locate it so as to accommodate or satisfy the parties you have named as showing you the location? The United States vs. Sutter. 317 A. I could have no knowledge of my own, and I followed their instructions where to survey, at the same time following the apparent dividing line, as before stated. Q. 39. State if you did not include lands as high as lands excluded, and exclude lands as low as lands included, immediately along the red line? A. I did. Q. 40. State if the lands included by the red line are not now in a high state of cultivation, and perfectly dry for all the purposes of cultivation. [Objected to by United States as irrelevant; the lands excluded from the grant to Sutter being liable to overflow in the winter time, and without reference to their capacity for cultivation. Same objection by attorney for Gelston.] A. Some of the lands are in a high state of cultivation, and some yet unfit. Direct resumed. Q. 41. State at what points along the red line you included lands as high as lands excluded, and excluded lands as low as lands included, as stated in your answer to question 39. A. On the southern end of the map, from the river to the first angle, the land is low on both sides; and also at line 16-nowhere else to my knowledge. Q. 42. Have you the least reason to believe that you have any where included any high lands, and represented them on your map as low lands? [Objected to as irrelevant and leading.] A. I have not the least reason to believe so. Q. 43. Have you not, on the contrary, left out portions of the low lands which might well have been included as such, particularly at the place described in your 41st answer? A. Yes. Cross-examination resumed. 66 Q. 44. Why did you leave out any low lands which ought or might as well have been included as those you did include, excepting at the southern end where you crossed from the river to the first angle, being the southern boundary of the grant? A. The party who employed me did not want me to go any further, because the people outside, he said, would not pay for the survey. Questions by attorney for B. Gelston. Q. 45. Did you not leave outside of the red line lands equally low as those included, near the American river, and between Sutter's fort and the American river? A. 45. I have, outside of the city boundary. I did not survey, at that part, outside the city boundary. 318 The United States vs. Sutter. Cross-examination resumed. Q. 46. How far outside the city plat, opposite Sutter's fort, and between there and the American river, are the lands as low as those inside? A. I never levelled outside, and don't know. Apparently there are lands outside as low. Examination closed. JOHN DOHERTY. Sworn to and subscribed before me this 25th May, A. D. 1860. JNO. B. WILLIAMS, U. S. Cormmissioner. EXHIBIT C. See deposition of John Doherty. [Map of the city of Sacramento, showing the swamp and overflowed lands. Surveyed October, 1859, by John Doherty, civil engineer.] A. —-Field-notes. Course. Distance. Course. Distance. Chs. links. Chs. links. I N. 64 E..................... 9 00 11 N. 15 E...................... 22 90 2......d....................... 45 00 12 N. 9~ E...................... 6 00 3 N. E....................... 17 70 13 N.43.1 E..................... 13 23 4 N. 3 E................... 2900 14 S.70~ E.............(....... 1400 5 N. E...................... 11 00 15 S. 59~ E................. 19 76 6 N. 18~ E.................... 9 50 16 N. 140 E..................... 11 00 7 N. 3 E.................... 11 23 1 17 N. 47 W.................. 30 00 8 N. 70 E..................... 5 40 18 N. 7~ W....................... 10 17 N. 84 E..................... 18 23 19 N. 28~- W.................. 15 00 10 S. 89~ E........1.......... 19 00 20 N. 9 E..................... 22 47 B.-Field-notes. Course. Distance. ~ Course. Distance. _ S 1 N. 62 E..................... 13 00 8 N. 78 F..................... 28 32 2 N.2 E.................... 7 00 9 N. 76~ E..................... 15 45 3 N. 2;~ E.................. 8 00 10 N.77E..................... 7 60 4 N.lI~ W..................... 6 00 11 S. 85~ E.................. 11 50 5 N. 1: E.................... 12 00 12 S. 66 E.................... 13 20 6 N. 39' E...................... 13 00 13 N. 18.- E.................... 58 10 7 N. 14 E................... 9 30 NOTE.-The figures in red denote the depth of water, dectum line 22 feet, marked upon water guage at foot of N street. The dark shade indicates the extent and location of the tule land, previous to the reclamation of the same, by the construction of levees and subsequent cultivation. The United States vs. Sutter. 319 Two trees indicate where timber was growing along the margins of the rivers and lakes, previous to the destruction of the same by the inhabitants. That portion of the map, not shaded, within the line marked "overflowed," indicates marshy, grass land, upon which a species of wild grass flourished before the land was reclaimed, and thereby rendered too dry for its healthy growth. The zero of the scale, to the left, corresponds with the river guage, set up in Sept., 1856. The figure 2 agrees with the zero in our published observations up to August. The scale to the left, when applied to the curves, indicates the rise of the river from zero to the highest point it has yet been known to reach. The same scale of feet, if read for inches, and applied to the perpendicular lines, will denote the monthly quantity of rain that fell at Sacramento during the last 6 years. The rain for 1853 and'54 being placed in the first column of each month, of 1855 and'56 in the second, and of 1857 and'58 in the third. The scale to the right represents inches, and is intended to show the comparative annual fall of rain since 1852. Endorsed: Filed, June 18, 1860. W. H. CHEVERS, Clerk. Dep. of Jno. P. Rhodes for U. S. United States district court, northern district of California. THE UNITED STATES) vs. JOHN A. SUTTER. ) SACRAMENTO, May 25th, 1860. On this day, before Jno. B. Williamson, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came John P. Rhodes, a witness produced on behalf of the United States in case No. 319, being an arpeal from the board of commissioners to ascertain and settle the private land claims in the State of California in case No. 92 on the docket of the said board of commissioners, and was duly sworn, and testified as follows: Present: E. Randolph, for U. S.; E. Johnson, for R. Gelston; Judge Burnett, for claimant. Questions by acting United States attorney. Question 1. State your name, age, residence and occupation. Answer. John P. Rhoads; age 41; residence Sacramento county, on the Cosumnes river; occupation, farmer. Q. 2. How long have you lived in California? A. I came to California in the fall of 1846. 320 The United States vs. Sutter. Q. 3. Have you lived during this time in what is now Sacramento county? A. I have not. I was eight months in Napa and Sonoma counties; the rest of the time I have lived in what is now Sacramento county. Q. 4. How long have you known and observed this tract of land in the forks of the American and Sacramento rivers, where the city of Sacramento now stands? A. Ever since I came to the country. Q. 5. Did you ever see it overflowed before the levees were built; if so, how often and in what years? A. I have. I can't tell how often; the first winter was in 1846-' 7; then in 1849-'50, and in 1852-'3. I have seen it so often that I cannot recollect every time. Q. 6. It was overflowed the first year, 1846-'7? A. Yes, it was overflowed very bad that year. Q. 7. How about the second year, 1847-' 8? A. I was not here at that time. Q. 8. How was it in the winter of 1848-'9? A. It overflowed some, but not so bad as the next winter of 1849-' 50. Q. 9. I suppose you stopped at Sutter's Fort at that time, did you not? A.. I never lived there, but was frequently there on business. Q. ]0. Occasionally a vessel came up from the bay, was there not? A. 10. At first Sutter's launch and a Russian vessel, afterwards others. Q. 11. When the floods were up how did you communicate with the vessels in the river from the fort? A. By boats. Q. 12. Where did the vessels lie at that time? A. On the Sacramento about the foot of I. street, near the slough; sometimes they went up the American and lay at about 29th street. Q. 13. How late in the spring season have you seen the water lay where the city now is? A. I have seen the water lay in sloughs some seasons during all the season. Some seasons it would lay on the surface longer than others-sometimes as late as July. There was one main slough 68 which forked about N or M street, not far from Nolan's garden, one fork that run next the river, round back of where the Orleans Hotel now stands, and under the Union office. I think the back part of the old Orleans Hotel was over this fork. It made a large basin between I and J streets and 1st and 2d, where it was a very low place. The other fork crossed N street where the Franklin school house is, crossed K street to where the Catholic church now stands, crossed J. street at the big tree, crossed I street at the corner of the public square-the northwest corner-and there spread out and run into Sutter lake. There was another slough this side of the fort, that came out of what is now called Ferguson's field. The United States vs. Sutter. 321 Where Nolan's garden is there'was tule-also in the east prong of the slough spoken of. After leaving about where the R street levee now is, to Sutter lake, it was a mixture of tule and coarse grass that grows in wet places. Q. 14. During those times would it have been safe to have settled where the city of Sacramento now is, and was it not necessary to go out to the eastward until you struck the highlands, as at Sutter's fort? A. It was not safe. Q. 15. If a man settled out to the eastward, upon the first slope of the high land, I infer from what you say that there was very little danger of any neighbor coming in between and cutting him off from the river? [Objected to by attorney for Gillespie, as argumentative and irrelevant.] A. There was no danger; if he had he couldn't have staid long on account of the high water. Cross-examination. Questions by attorney for Gillespie. Q. 16. Is there not a place here known as Poverty Ridge, which never has been overflowed? A. There is. Q. 17. Do you know where Sutter cultivated his wheat fields and gardens; and if so, state where? [Objected to by the United States as irrelevant; the land excluded from the grant to Sutter being subject to be overflowed in the winter time, without reference to the fact whether it could be cultivated or not.] A. I do know. He had different fields; one of the principal ones was known as Hock farm, on Feather river; one was betwixt the fort and the American river, and extended west to the brush skirting Sutter lake, and east to the tannery. There must have been about 300 acres in it; it was a large field, inclosed by ditches and the American river. There was a smaller field between the fort and what is known as Poverty Ridge. When I first came to the country the ditches were begun but not finished, and the fields were partly guarded by the Indians. Sutter afterwards came in possession of another field, at a place now called Brighton, on the south side of the American, at the old mill. Sutter cut the mill-race. Q. 18. Look on exhibit C, at the place marked "Lake,'? north of I street, and the place marked "Sutter's fort;" a line Is drawn between those two points; state whether said line would indicate the course of the ditch enclosing the larger wheat field spoken of by you. A. I think it does. I dont know whether the ditch struck the lake. or extended over to the American river. The line indicates correctly the course of the ditch. In 1848, he used the land north [REe. cCLVITI, D. T. 1862. —21 322 The United States vs. Sutter. of the lake, and between there and the Sacramento and American as pasture land. Q. 19. You state that the present site of the city of Sacramento was frequently covered with water during the years spoken of, and remained so a large part of the season; was it not confined principally and mostly, after a few days of overflow, to the sloughs and lagoons you have spoken of, and was not the surface of the balance free from any obstruction on account of water? A. It depended on circumstances. Some seasons it would go off in a short time, at others it would be longer. In 1846-'7 it staid much longer; there was much rain and snow. I think the greater part of the site of the present city was overflowed two months in that winter; it might have been longer or shorter. Usually it would remain eight or ten days; after that it would be confined to the sloughs, and then the land would be all slush and mud for a long time afterwards. Q. 20. State what proportion of the land between the fort and the river was covered with timber. 69 A. Well, from the river to First street below N, there was timber; after you crossed the slough there was timber again, principally willow. I, J, K, and perhaps down to L, was timber, east as far as the public square-Tenth street. Then there was a small point of timber down as far as M street. There was also timber north of Sutter lake, between that and the American river. -Q. 21. State whether Sutter did not claim, and use for pasturage and other purposes, all the lands between the Fort and the Sacramerto river; and did he not exercise exclusive dominion and control over the same? [Objected to by United States as irrelevant, the question being not what Sutter pretended to have, but what he had a title to.] A. I know by having conversation with Sutter what he claimed. He claimed down to betwixt Sutterville and the Russian Embarcadero, across to the Stockton road, taking in the Lake House property, run out on the Jackson road, including most of the Nine Mile ranch, then across to the American river above Patterson's. So far as I know, his stock run over a portion of it, and he cultivated portions of it. Direct resumed. Q. 22. What did Sutter claim on the other side of the American river? A. He claimed from the American river to the meridian of the Buttes, and from the Sacramento to the foot hills. He had sold within these limits. [Answer objected to, as sales must be proven by other than parole testimony.] Q. 23. North of the American river did he keep stock and cultivate land? A. He did-at Hock farm-afterwards he planted a vineyard op The United States vs. Sutter. 323 posite Marysville. He had stock also, but not a great many. IHe kept about three hundred Indians each, on Hock farm and at the Fort. Q. 24. Did you ever see any wheat growing yourself in the larger field you have spoken of? A. I have, in the northeast portion towards the tannery. It was a poor field for wheat. Q. 25. Much the greater portion of that field was used for a pasture, was it not? A. That was the principle use for it, after I came to this country. Questions by E. Johnson, esq. Q. 26. When you first came to this country, what place was called New Helvetia, and where was it located? A. I cannot answer that correctly, except according to my own judgment. Men differ about it. My judgment was that it was Hock farm. More people considered it at Hock farm than that it was here. Some thought it included the whole. Q. 27. Have you any interest in the land claimed by Sutter and his grantees? A. None. I claim no interest adverse to him. I have no interest either way. Q. 28. Have you a brother residing on the American river opposite the fort? A. I have not. I had one there about eighteen months, during the winter of'46-'7, and Lp to the discovery of gold. Q. 29. Do you know whether land east of the Sacramento river, and between the American and the Feather rivers, was subject to overflow? A. It was, and I suppose is yet, that is, from three to eight miles from the river. Q. 30. Was that subject to overflow as often as that between the fort and the Sacramento river? A. Worse, except when the overflow would come from the American river. Before the levee was built on the American the land between the fort, the American and the Sacramento rivers, would overflow, and was as subject to be overflowed by the water from the American. In 1849 the water from the American was strong enough to wash away wagons and teams. I have seen whole teams drowned here chained together, and washed against stumps of trees. I have seen two hundred wagons washed away and lodged against the 7O trees at Sutterville in 1849. We had to travel around here in boats in 1849, and also in 1852. They had to start up a new town on the American, called Hoboken. It was about a quarter or half a mile this side of Brighton. The business men had to go up to Hoboken from Sacramento to do business. Two steamers went up there from Sacramento. Q. 31. Look at the copy plat of official survey, and state at what place the water came out from the American river when it overflowed the land between the fort and the Sacramento and American rivers. 324 The United States vs. Sutter. A. The first overflow of the American is about half a mile below" Hoboken-perhaps three quarters-then it used to overflow again about Smith's garden, sloughs make out there; and from there down to the old tannery it used to overflow badly, there being a great many sloughs there. I have seen the cemetery covered, all but a very small portion, by the water flowing back. I have seen Keefer's farm overflowed at a low place which makes through the farm, and extends down to the railroad. The water then took round by the fort and spread over the bottom, and down where Ferguson's field is now, into the Sacramento river. Examination closed. JOHN P. RHOADS. Sworn to and subscribed before me, this 25th day of May, A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. W. IH. CHEEVERS, Clerk. Dep. of Thos. K. Stewart for U. S. United States district court, northern district of California. THE UNITED STATES vs. JOHN A. SJTTER. SACRAMENTO, Miay 25, 1860. On this day, before John B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came Thomas K. Stewart, a witness produced on behalf of the United States in case No. 319, being an ap71 peal from the board of commissioners to ascertain and settle the private land claims in the State of California in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: T. R. Wise, esq., acting U. S. att'y, by E. Randolph; T. E. Howard, esq., for Sutter by stipulation; Elihu Johnson, eq., for Gelston; and Mr. Welty for Gillespie. Questions by acting United States attorney. Question 1. State your name. age, residence and occupation. Answer. Thomas K. Stewart; age 25; residence on the American river, Sacramento; occupation, farming and gardening. Q. 2. How long lhave you lived at that place? A. Most of the time since 1848. Q. 3. Have you made any note of the greatest height the Amen can river has attained since that time; if so, when and how? The United States vs. Sutter. 325 A. The levee runs between my house and the river, and is lower there than at other places. On the first of January, 1853, the water rose to within half an inch of the top of the levee. The levee at that place is in the neighborhood of a foot or foot and a half lower than at the other places, in order to meet the level of my door yard. Q. 4. Have you within the last month or six weeks correctly designated to Mr. Doherty, a surveyor, the point at which high water stood at the time of which you have spoken? A. I have correctly and exactly shown him the place. Cross-examination by attorney for Gillespie. Q. 5. You state in answer to question four that you have correctly designated the point at which high water stood to Mr. Doherty; was it the point you have mentioned as having observed in January, 1853? A. The same. Q. 6. To which levee do you have reference, the old or the new one? A. The levee built by Gay, but had been raised about a foot higher and some wider. Q. 7. How much land have you under cultivation where you live? A. About thirty or forty acres. Q. 8. Have you cultivated and gardened that land each year since 1849? A. Portions of it. [Question and answer objected to by United States as irrelevant; the land excluded from the grant to Sutter being such as was liable to be overflowed in the winter time, and without reference to the fact whether it could be cultivated or not. The attorney for R. Gelston makes the same objection.] Q. 9. State what portions of the land you have designated you have been cultivating? A. In 1849, we cultivated about two acres; in 1850, about six acres; since that time we have cultivated from twenty to twenty-five acres. Q. 10. State if you own lands embraced within the present survey of the Sutter grant, for which you do not own the title under Sutter, and which would be effected by not being included within the survey. A. We have a small quantity-about three or four acres. 72 Questions by attorney for B. Gelston. Q. 11. How high is the levee in front of your house? Ans. About one and a half feet. Q. 12. How does the height of your land correspond with that around it? A. Mine is a little higher. In 1849 and 1850 mine was all over. flowed except a little place where my house was. 326 The Unit d States vs. Sutter. Q. 13. When this overflow commenced which you have last mentioned, from which river did the water come in first, from the American or Sacramento? A. From the American. Q. 14. In what direction from your house, above or below? A. From both sides, as far as two miles above; that is, as far up as the head of Sutter slough, near the place where Judge Ralston now lives. Q. 15. At that time did you notice how far back from the American river the water extended in the direction of the fort? A. It extended back to the fort. Q. 16. Did you notice how far back it extended between the fort and Judge Ralston's house? A. Judge Ralston's house is on dry land, and never overflows; the fort is also on high land, and never overflows; there are some sloughs between them. Q. 17. Can you designate any points between the fort and Judge Ralston's house, to which the water then reached? A. Nothing more than that the graveyard was partly covered — the New Helvetia cemetery. Q. 18. Are you familiar with the land on the opposite side of the American river from you; and if so, state whether any of that land was overflowed by the flood of 1849-' 50? A. I am familiar with it. It was all overflowed to an Indian knoll which joins the red land. This knoll was not overflowed, nor was the red land beyond it. The red land is fom a quarter of a mile to a mile and a half from the American river. Q. 19. How far is this red land from the Sacramento river? A. I have never been through from the Sacramento to the red land. I should judge the distance to be from two and a half to three miles. Q. 20. Was the land between the Sacramento river and the red land overflowed by the flood of 1849-'50? A. It was, most of it. Q. 21. Do you hold any of your land under the Sutter title, so called; and if so, how much? A. I hold most of it under the Sutter title. Examination closed. THOMAS K. STEWART. Sworn to and subscribed before we this 25th day of May, A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. The United States vs. Sutter. 327 Dep. of E. R. Robinsonfor U. S. UNITED STATES DISTRICT COURT, Northern District of California: THE UNITED STATES) vs. JOHN A. SUTTER. SACRAMENTO, May 26, 1860. Adjourned from May 25th. 73 On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came Edward R. Robinson, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: T. R. Wise, esq., acting U. S. atty, by Edmund Randolph, esq.; V. E. Howard, esq., by Mr. Clark; A. P. Crittenden, esq., for E. F. Gillespie. Questions by United States attorney. Quest. 1st. State your name, age, residence, and occupation. Answer. Edward R. Robinson; age, 53; residence, Sacramento county, on the Cosumnes river; occupation, laborer. Q. 2. When did you come to California? A. In 1830; about that time. Q. 3. Where did you settle first? A. At Monterey; staid there two months; then coasted off and on about 10 years; then settled in the Sacramento valley, and lived there since, excepting 24 years, from 1851. Q. 4. What place in the valley did you first settle at? A. On the Cosumnes, at Daley's ranch. Q. 5. Then you were here before Capt. Sutter came to this country? A. I was. Q. 6. Do you remember when Capt. Sutter first came here and settled at the fort? A. I remember hearing of his coming from the islands here about 1839; first saw him in 1842, at the fort. Q. 7. How long have you known and been in the habit of noticing the tract of land where the city of Sacramento now is? A. Ever since 1842. Q. 8. How often have you ever seen it overflowed since you first settled in this country; what years, and at what seasons of those years? 328 The United States vs. Sutter. A. I think about four times. I got employment from Capt. Sutter in the year 1842, and took charge of his launch; sailed her for about five months; then resided on the Cosumnes, and passed backwardand forward two or three times a week, more or less, until the years 1844 and 1845; then I was down in the Micheltorena war with Sutter; turned back again and resided on the Cosumnes until 1846; then I joined Fremont and returned in 1847; resided on the Cosumnes until 1848; then resided in Ione valley until 1851; then to Oregon for about 2~ years, and returned to California, and have resided on the Cosumnes ever since. 74 I first saw the place where Sacramento now is overflowed in 1843, the year after I first settled up here; again in 1845; again in 1848 and 1849. I should judge from appearances that the place was overflowed about 20 feet, but I never sounded it. From the vessels in the river communication was had with the fort by boats. I have seen the boats passing. In these floods pretty much the whole of the present site of the city was covered with water. Q. 9. Do you know of any one trying to make a settlement upon the site of the present city of Sacramento? A. No, sir. During the summer season the Indians would live on the banks. In the winters they went off to the ridges.,Q. 10. Do you know of any one building, or proposing to build, anywhere on the site of the present city? If so, state who, and where. A. A man named McVickar, who was here before I came, proposed building at the embarcadero, in the limbs of the sycamore trees, I should judge about 20 feet from the ground. This was where Front street now is, a little below I street. The house was intended for a grog-shop. I suppose he intended to go up by steps at low water, and by canoes at high water. The house was never built. He talked with me about it. I don't recollect that I noticed any water-marks on the trees. Q. II. Did you talk with McVickar about the heights of the waters in the Sacramento? A. I did. He said there had been a greater overflow before I came. (Objected to by Judge Burnett as hearsay.) Q. 12. McVickar told you this at the time as a reason for building up in the trees, did he not? A. He did. (Same objection.) Q. 13. Did you ever have any conversation with Capt. Sutter as to the reason which induced him to make his settlement where the fort is? A. I have. As near as I can recollect, he said he was lucky in selecting a place that was dry at high water. This conversation took place at the still-house in the fort. Q. 14. Did you ever have any conversation with him in those early times as to where his lands were situated, and as to his different titles? A. I understood from him he had a grant of land. The United States vs. Sutter. 329 Q. 15. Did you ever have any conversation with him on that subject about the years 1842 or 1843, when you first came here? A. Yes, sir. Q. 16. And other conversations later, after the Micheltorena war, and about that time? A. Previous to going down to the war I had; none afterwards with respect to lands. Q. 17. What did Capt. Sutter say as to lands in 1842 or 1843, when you first spoke to him about it? A. I understood him that he had 11 leagues, and had to colonize it. Q. 18. Where did he tell you in those early times that his 11 leagues were situated? A. On Feather river, and above, about the Buttes; the whole section of country up there I understood from him. I believe he sold some land up there. Q. 19. And afterwards, in the Micheltorena times, what did he tell you about his lands? A. I didn't converse with him after I came up from below. Before we went he said he was to have a certain grant for those who went with him. Q. 20. What land did he say he was to have, if any? A. He said he was to have some; did not say how much, nor where. Q. 21. Did you ever hear Sutter claim to own lands besides the 11 leagues about the Feather river and the Buttes? (Objected to by Judge Burnett as leading.) A. I have. Q. 22. Under what grant, then, did he claim to own those other lands? A. Under Micheltorena, I suppose. Q. 23. Did you ever hear him say anything about the Micheltorena grant; and if so, what? A. I never did; not where it was located. Q. 24. What did you ever hear him say about that grant? A. I have heard him say that he was unlucky in not being conqueror in the war. I understood him that if we had driven the Spaniards out we might have got the land. 75 Cross-examination.-Questions by Judge Burnett. Q. 25. You speak of an overflow in 1848; what month was that in? A. I don't remember the month. I was then in Ione valley. I think it was in the latter part of the year. Q. 26. Are you acquainted with the town limits of Sacramento city, and whether they include the fort? A. I do not. Q. 27. What portion of the land lying between the river and the fort was overflowed by that overflow, or was it all overflowed? A. How far it extended towards tle fort, I cannot say. I saw it at a distance. 33.0 The United States vs. Sutter. Q. 28. Was the site of the fort ever overflowed to your knowledge? A. Not to my knowledge. Q. 29. Are you acquainted with the grounds cultivated by Sutter after you knew the fort? A. Yes. Q. 30. State how much land he cultivated, to your knowledge, as near as you can. A. I have no knowledge as to acres, being a sailor. I can make no estimate. Q. 31. Do you know the time when he first commenced cultivating land at this place? A. I do not; there was some under Cultivation when I first came, which was about the middle of 1842. Q. 32. What amount of land did he cultivate in that year, 1842? A. I can make no estimate. Q. 33. Ill 1843, did he cultivate more than he did in 1842? A. I think he did. Q. 34. How long did he continue to cultivate land in this place? A. I believe until 1848, including that year, I think. Q. 35. Where was that cultivated land situated? A. About the fort. Q. 36. Was it between the fort and the Sacramento river? A. I don't remember; he had a field between the fort and the American. Q. 37. In what manner was that field inclosed? A. With a ditch; part of it. Q. 38. Was that field, or any part of it, situated within the part subject to occasional overflow? [Objected to by United States as irrelevant, because the lands excluded from the grant to Sutter are such as were liable to be overflowed in the winter time, without any reference to the fact whether they could be cultivated or not. Same by attorney for Gelston.] A. I think most of it; not all. Q. 39. What crops did Sutter cultivate? A. Wheat. Q. 40. Are you acquainted with the general character of the land in the Sacramento valley with respect to the soil? A. I am no geologist, and don't know the character of aly soil. Q. 41. Are you acquainted with the soil of that valley with respect to cultivation and pasturage? A. I think I know good land from bad, likewise good pasturage from bad. Q. 42. Which is the best land for cultivation and pasturage at the vicinity of Sutter's fort-that which is subject to occasional overflow, or that which is never overflowed? [Same objection as that to question 38.] A. I believe that which is not subject to overflow. The United States vs. Sutter. 331 Q. 43. Do you know the distinction between land subject to occasional overflow and those termed tule lands? A. I think where the land is subject to occasional overflow the grass is coarse. The Indians make baskets of the roots. The tule land bears tule. Q. 44. Are the tule lands more subject to overflow than the land which does not produce tule? A. It depends upon how they are located. Q. 45. Which is the lowest land-that occupied by tule, or that subject to occasional overflow only? A. I cannot tell that. Q. 46. What land did Capt. Sutter claim in the vicinity of Sutter's fort in 1842 and 1843? A. He claimed as low down as what was called the Sheep Farm, 9 miles in a straight line from the fort, on the Sacramento, about 15 or 16 miles by water. There was no house there. 76 Q. 47. What proportion of land cultivated by Sutter was subject to occasional overflow? Was it greater or less than that not so subject? A. I think the greater proportion was land not subject to overflow. Q. 48. Was all the land between the fort and the American overflowed at the periods stated by you? If not, state what portions were not. A. I don't think it all was. There was a narrow strip next the fort that was not. Questions by attorney for Gelston. Q. 49. You say that in 1842 and 1843, Sutter claimed land on the eastern bank of the Sacramento, some nine miles below the fort, at a place called the Sheep Farm; can you state in what direction from that point his southern line ran, and how far? A. I cannot say. He promised to give land on the Cosumnes after the Micheltorena war. On the American he claimed up to Leidesdorff's line. Q. 50. Do I understand you to say that Sutter claimed land as far as the Leidesdorff line in 1842-'3? A. Yes. Q. 51. Can you state how far back from the American river, and south from it, he claimed to own the land? A. I cannot say. I suppose he claimed south from the Leidesdorff line on the American to a point which would make a square with the point occupied by the Sheep Farm. Sutter settled on his land near the Leidesdorff line a man named Perry McKoon; I think in 1846. Q. 52. Are you familiar with the land east of the Sacramento between the Feather and American rivers? A. I have traveled it several times. Q. 53. Is that land subject to overflow by the swelling and currents of the rivers; and if so, how far back does such land extend from the Sacramento river? A. I never traveled it in the winter time, and therefore cannot tell. 332 The United States vs. Sutter. Direct resumed. Q. 54. You have said that Sutter told you that his eleven leagues of land lay about the Feather river, up towards the Buttes; by what name did he call this portion of the country on the American and Sacramento rivers? A. He called it Sutter's fort and Russian Embarcadero. Q. 55. Did those names apply to all the country down here below the American, that you have spoken of; and if not, to what part of it? [Objected to by Judge Burnett as leading.] A. 55. Just here it was called Embarcadero; at Sutterville, the Hog Farm; the Sheep Farm was below that. Q. 56. Who governed this country south of the American river at this time? A. Capt. Sutter. Q. 57. Who governed the tract between the American and the Feather rivers, of which you have spoken? A. Capt. Sutter. Q. 58. And the same of the tract about the Feather and up to the Buttes, who governed that? A. Capt. Sutter. Q. 59. When you say that Captain Sutter governed all that country, what do you mean; what did he do? A. No person could settle anywhere there, as far as I was acquainted, without his leave. He made the natives come and work for him, and if they would not he would declare war against them, taking other Indians to go after them. Q. 60. Have you yourself ever seen or known Capt. Sutter exercising that sort of government over the Indians? If so, tell us of some example. A. I have fought against the Indians under his command, both with and without him. He sent for the captain of the Moquelumne tribe to come in; he did not obey, and was brought into the fort and shot by Sutter's Indians. He afterwards declared war against the tribe, and followed them as far as the Calaveras, and afterwards offered a reward for the scalp of the Indian who acted as chief afterwards, which was taken by the chief of another tribe, who brought it in and nailed it up at the fort gates. He did not get the Moquelumne tribe to come in and work; they dispersed towards the Missions the other side of the San Joaquin. Q. 61. From what you have said, then, I understand Captain Sutter gave his orders to whites and Indians within the tract of country you have described, and made them obey by force if they would not do so willingly. 77 A. He made the Indians obey him. As to fighting, the whites done as they pleased, but could not settle on the lands without his permission. I mean the lands we have been speaking of. He had nothing to do with the lands about the Calaveras. The Uttted States vs. Sutter. 33 Cross-examinaticn resumed.-Questions by Judge Burnett. Q. 62. You.speak of Capt. Sutter exercising government; state under what authority. A. At one time under a Californian governor, and at another under Micheltorena. Q. 63. Do you know the entire limits over which his governmental power was claimed by him to extend? A. I do not. Q. 64. Do you know whether it extended above the Buttes, or above land claimed by him as his individual property? A. I never knew him to exercise his authority above the Buttes. Q. 65. Did you ever know him to exercise any governmental power over whites or Indians on land south of the line you have described as running from the Sheep Farm to Leidesdorff s line? A. I have. Q. 66. Were you acquainted with the tract of land called New Helvetia? A. I don't know what portion was called or designated New Helvetia. Q. 67. Do you know whether it included theland in the vicinity of Sutter's Fort? A. I do not. Q. 68. I understand you to say that Capt. Sutter claimed the land east of the Sacramento and south of the American; under what title did he claim it in 1842 and 1843? A. I don't know. Q. 69. Do you know the date of the grant to Leidesdorff? A. I do not. Q. 70. I understand you to say that Capt. Sutter in 1842 and 1843 claimed land up to the Leidesdorff line? A. He did. Q. 71. Are you interested in the result of this suit in any way? A. I am not, Questions resumed by attorney for Gdeston. Q. 72. T1 yoi-r direct examination, in reply to question 55, you say that it-i place where Sutterville now is was called the Hog Farm, and the p]lace b,:iiow, the Sheep Farm; are you able to state where Hock Farm wsas? A. I never' was there; I understood it was on Feather river. Q. 73. Betvweel 1 842 and 1848 did Sutter have any manufacturing establishrmnts a;t the fort and its vicinity? and if so, state what. A. I thinlk; he tried to make some blankets there. He had a tannery and -:!lacksmi;t's shop, and distillery. Some white men at the fort were manufacturing California saddles and bridlss; there was a gunsmith th,;re who rej aired guns. There was a flur mill within the fort w: l1. rvun bv- mule power. He (Sutt;e) a'fte;crwards putup a frame for a flour mill on the Ameri 334 The United States vs. Sitter. can, about six miles east from the fort. He commenced digging a race to take water from the American river, I think, about a mile above the mill. Q. 74. Did not the inhabitants of the country in the vicinity of the fort, and for some distance therefrom, purchase various articles at the fort for their domestic use? A. Nothing but flour, that was manufactured at the fort. They purchased sugar and other articles brought by the launch. Capt. Sutter had these things to sell himself. Examination closed. E. R. ROBINSON. Sworn to and subscribed before me this 26th day of May, A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. 78 W. H. CHEVERS, Clerk Dep. of Nicolas Algier for U. S. UNITED STATES DISTRICT COURT, Northern District of California. TgEE UNITED STATES) vs. JOHN A. SUTTER. ) SACRAMENTO, May 26, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came Nicolas Algier, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: T. R. Wise, esq., by Edmund Randolph, esq.; E. John: son, esq., for Gelston; Judge Burnett for claimant. Questions by United States attorney. Question 1. State your name, age, residence, and occupation. Answer. Nicolaus Algier; age, near 50; residence, Sutter county, on Feather river; occupation, farmer. Q. 2. When did you first come to California? A. In October, 1841. Q. 3. Where did you first settle? A. I settled up on the Feather river, where the town of Nicolaus now is. Q. 4 Have you lived in the Sacramento river ever since? The United States vs. Sutter. 335 A. I'have, Q. 5. How long have you known land been in the habit of noticing this tract of land where the city of Sacramento now is? A. Since 1841, in the month of October. Q. 6. Have you ever seen it overflowed; and if so, how often, and in what years? 79 A. I saw it overflowed in 1841; it commenced about three weeks before Christmas. I speak now of the times when I saw it with my own eyes, and not when I was away from here. I saw it overflowed in 1850, a little after Christmas; I was not here between 1841 and 1850, being on my ranch. Q. 7. How much land was overflowed in 1841? A. That year I was trapping and hunting. Between Christmas and New Year I took my boat and went up to the fort; I came down the Sacramento river; I went from the river over where the citymaow is, straight to the fort; I passed over where the old ferry was, which was just below the mouth of the slough. This was in 1841, between Christmas and New Year. Q. 8. How near did the water come up to the fort at that time? A. I landed just back of the fort, about two rods. The fort was not finished then-about half done. Q. 9. Did you ever ask Capt. Sutter why he put his fort there; if so, what did he say? A. I never asked him. Q. 10. Did Capt. Sutter ever speak to you of his having a grant of land; and if so, when first? A. In 1842 he spoke to me about it. He said the grant was from Alvarado; located here about the fort called New Helvetia. Capt. Sutter said it was eleven leagues. The line commenced at Sutterville, and run across the slough; then it run up to Leidesdorffs, to an oak tree marked on the bank of the American river where Leidesdorff's ranch commenced; then it run up to the Yuba river, close to the foot of the mountains; then it run across until you get up to the Buttes; and then across to the Sacramento river, above the Willlams ranch; then down the Sacramento to the beginning. This is what Sutter told me. Q. 11. He told you that the eleven leagues which Alvarado granted him was within the boundaries you have named? A. He did. Q. 12. You said you had a ranch where the town of Nicolaus now is, on the Feather river; did you own that ranch? A. I did. Q. 13. From whom did you obtain it? A. From Capt. Sutter. Q. 14. When did you buy it? A. In 1843, but lived on it before. Q. 15. Did Capt. Sutter make you a deed for it? A. He did, in 1843. Q. 16. Where is that deed? 336 The United States vs. Sutter, A. I had two in 1843-this is one; and the signature to it and the deed is in his handwriting. [The United States attorney offers this deed in evidence, and it is marked Exhibit D. Objected to by Judge Burnett, on the ground that it is not witnessed, nor acknowledged, nor proved; and that the witness is incompetent to prove it, or to prove the time of its execution, and that it was not executed before any competent authority. Objection also made by attorney for Gelston.] Q. 17. When did Capt. Sutter hand you that paper? A. In 1843. Q. 18. Where has it been ever since? A. In my possession. Q. 19. You say you had another deed; what became of that? As I lost it. Q. 20. Was that other deed the same one that is referred to in Exhibit D? A. The same, and in the same writing. Q. 21. When did you lose it? A. In 1849. I had it in my chest with some other papers, and in putting those papers in my pocket I lost it; it was lost about my house. I wished to come down to Sacramento with these papers. Q. 22. Did you tell Capt. Sutter you had lost it? A. I did, and got another one..Q. 23. Where is that other one? A. This is it-written by some one else, but signed by Sutter. [The United States offer it in evidence, and it is marked Exhibit E. Same objections as to Exhibit D.] Q. 24. Is the tract of land mentioned in this deed the same as that mentioned in the last deed? A. It is. Q. 25. When Capt. Sutter made the first deed to you, in 1843,.were you living on the land? 80 A. I was, and have lived there ever since. Q. 26. When you were buying that land from Capt. Sutter, did you ask him under what title he held the land? A. I did. Capt. Sutter then told me that it was under a grant from Alvarado for eleven leagues. Q. 27. Do you now, or have you at any time, owned any other land up in that neighborhood? A. A grant which I bought from Farwell; the deed for it was made to me by John Bidwell, as administrator of Farwell. Q. 28. Where is that deed? A. It is here; I now produce it. [The United States offer it in evidence, and it is marked Exhibit F. Same objections as before; and that it does not appear on the face of the deed, nor is there any evidence that Bidwell had power to convey it.] Q. 29. What was Farwell's title? A. Sutter's. This is the deed to Farwell. The United States vs. Sutter. 337 Q. 30. Did Bidwell hand it to you? A. He did-at the same time. [The United States offer it in evidence, and it is marked Exhibit G. Same objections as before; and because it has not been properly recorded.] Q. 31. Were you a Mexican citizen? A. I was. Q. 32. Had you a certificate of naturalization? A. I had, and now produce it. [The United States offer this, and it is marked Exhibit H.] Q. 33. After you bought the land from Sutter, in 1843, and he told you he held this land by a grant from Alvarado, who gave him eleven leagues, did you ever hear Capt. Sutter speak about having any other grant? A. I heard him say afterwards, in 1846, that he had a grant fiom Micheltorena. Q. 34. Did you ever hear him say where that land was situated? A. No, sir. Q. 35. Do you know where it was situated? A. I do not. Q. 36. Do you know of any other persons that Capt. Sutter sold land to on the Feather river? [Objected to, because parol testimony is not competent to prove sales.] A. Mr. Thomas, Dr. Laurence, Mr. Lawton, and some others below me. [The United States offer in evidence five certified copies of deeds, marked respectively Exhibits I, J, K, L, M. Objected to on the ground that the originals are not produced, nor their absence accounted for, and that they are not properly proved or acknowledged.] Q. 37. Did you know Mr. Thomen or Thomas; and if so, how long? A. I have known him since 1846. He lived imostly at the fort; have seen him several times on the land he owns; he had no stock on it. Q. 38. Do you know Mr. Lawton and Mr. Laurence? A. Since 1850. Cross-examination.-Questions by Judge Burnett. Q. 39. State whether Capt. Sutter cultivated any land between Sutter's Fort and the American and Sacramento rivers previous to the year 1849. [Same objection by U. S. as before.] A. lie had about a mile behind the fort, between the fort and the American river. Q. 40. When did he commence the cultivation of that land? A. In 1841. Q. 41. How long did he continue the cultivation of that land? A. As late as 1849 or 1850. [REC. CLXVIII, D. T. 1862.]-22 338 T7he United States vs. Sutter. Q. 42. In what year were the gold mines discovered? A. In April, 1848. Q. 43. State whether Capt. Sutter cultivated land after the year in which the gold was discovered. A. I think he stopped in 1849; I know he had a big field of wheat in 1848. Q. 44. State whether Capt. Sutter cultivated that field every year after you knew it, until he ceased in 1849. 81 A. He did, every year. Q. 45. Do you remember where Sutter9s corral was for his cattle? A. Yes; it was in front of the fort. Q. 46. Are you well acquainted with what we call tule lands? and if so, state whether those lands are not generally overflowed once each year by high water from the rivers. A. We call tule land where the swamp is, and that is always overflowed once a year until about July. Q. 47. Describe what you call tule. A. Bullrushes, which grow only in swamp land. Q. 48. Are tule lands fit for cultivation without drainage? A. Not in the winter season; they are in the summer season, in June and July, when the water goes down. Q. 49. Was any portion of the land cultivated by Capt. Sutter tule land? A. No, sir. Q. 50. What proportion of that part of New Helvetia lying east of the Sacramento river and south of the American was tule land, to the best of your judgment? A. There was some tule land below the graveyard, and at Sutterville, not far from Sacramento river. It is very hard to tell the proportion, it is so long since I saw it; there was a good deal below the grave yard, which was at the southern extremity of the city site. At that time the strip of tule was about half a mile wide and about a mile long, as near as I can state. My recollection is not good, it is so long since. This is all the tule I recollect of seeing east of the Sacramento and south of the American. Q. 51. Which is the better land for cultivation and pasturagethat which is occasionally overflowed, or that which is never overflowed? [Same objection by U. S.] A. Low land is better for pasturage and high land for cultivation. Q. 52. From 1841, the time when you first knew the place, up to the end of 1848, state whether Sutter had any stock here. A. In 1841 he had stock here; in 1842 he drove it all up to Hock farm. Q. 53. What do you mean by "stock?" A. Horses and cattle. Q. 54. From 1841 to 1848, included, had he any sheep and hogs here running? A. He had sheep here until 1848. He had a spot fenced in for a The United States vs. Sutter. 339 garden; I think I saw that in 1842; it was between the fort and the Sacramento river. Q. 55. State the width of the strip of land running along up the Sacramento river from the month of the American river to the mouth of the Feather river, which lies between the Sacramento river and the tule swamp. A. Some places half a mile, some places only two or three hundred yards. I think that strip is delineated correctly upon the plat of the official survey. Q. 56. Are you acquainted with the land between the Sacramento and Feather rivers? A. I am. Q. 57. What is the general character of the land between the Buttes and the two rivers? A. A good portion is tule. A portion on the Sacramento is good, when the water goes down. In 1841 I was there, and the land was overflowed from the foot of the Buttes to the two rivers. Q. 58. Are you acquainted with the land along the margins of Feather river, from Marysville down to the town of Nicolaus? A. 58. I am; it is high land on both sides. Questions by attorney for Gelston. Q. 59. You say that in 1841 you came from your place to Sutter's fort in a boat. On that trip did you confine yourself to the river or not? A. I came down by the river channel. The water was all over the country. Q. 60. How far east from the channel of the Sacramento river did the water extend? A. Some places five or six miles, and in some, two or three only. I could see the mound rancherias as I came along. These mounds would not do to have cattle on; they were too small. Not more than one creature could outlive the flood on the mounds. Q. 61. When you first came here in 1841, what place was known and called by the name of New Helvetia? A. Capt. Sutter's fort. 82 Q. 62. After that time, how were they in the habit of distinguishing between the southern and northern portion of the grant? [Objected to, because it does not appear there were two separate parts to the grant, or that it was otherwise than in a compact form.] A. Capt. Sutter had only one grant. Q. 63. You say they called the fort by the name of New Helvetia. By what name was the place on Feather river, to which you say Sutter moved in 1842, known or called? A. He called it Hock Farm, after the Indians. Q.'64. Do you know where Marysville now stands? and if so, state if that place was subject to overflow by the currents and swelling of the rivers. 340 The United States vs. Sutter, A. It was; that part between the Yuba and Feather rivers. There is a large bottom on the east of the Feather, and south of the Yuba, which was overflowed. It was also overflowed as far up as Cordua's adobe house, which was north of the Yuba about four hundred yards. The overflow extended down the Feather, south of the Yuba, to the first bend. Questions by Judge Burnett. Q. 66. Which is the best land for cultivation-that which runs immediately along the rivers, or that which lies back? A. That on the rivers, sometimes overflowed and sometimes not. From my place up the Feather river to the Yuba, and up the Yuba, as far as laid down on the plat, there is no tule. Direct resumed. Q. 68. What was the general name for all of Sutter's tract, from north to south, and from east to west? A. I never heard any other name than Capt. Sutter's grant. Q. 69. Was not the general name of all of Sutter's grant New HIelvetia? [Objected to as leading.] A. That was the first name I heard for it when I came to the country. Q. 70. And was not the name of the fort the "Establishment of New Helvetia?" [Same objection.] A. It was. Q. 71. In that large field, inclosed by a ditch, and on the north by the American, was not the part cultivated in wheat the upper part towards the tannery? A. It was. Q. 72. Was not the lower part, or that down in the city now, kept as a summer pasture, and was not the greater part of the field so kept? A. I was not here then, and did not see it. Examination closed, his NICOLAS + ALGIER. murk. Sworn to and mark made before me this 26th day of May, 1860. JNO. B. WILLIAMS, United States Commissioner. Adjourned until Monday, May 28th, at 10 o'clock a. m. JNO. B. WILLIAMS, U. S, Comn, The United States vs. Sutter. 341 SACRAMENTO, May 28, 1860. Nicolaus Algier recalled by United States: Q. 73. Do you own any land in the city of Sacramento? A. I do. Q. 74. Do you claim that land as a settler, or under the Sutter title? A. 74. Under the Sutter title-one lot. Q. Are you in possession of that lot, or has some one squatted on it? A. It has been squatted on for two years. Q. 76. When did you buy that lot, and from whom? A. In 1850, from John A. Sutter, jr. Q. 77. When you first came to this country, were there many persons living upon Captain Sutter's land-settled upon it by him? A. Nobody here but Sutter and Eliab Grimes. 83 Q. 78. About what part of the country did the first settlers get their land, say up to 1845, from Sutter? [Objected to, as sales cannot be proved by parol testimony.] A. I was the first settler, and settled on the Feather river where Nicolaus now is; then Farwell, who settled below me on the Feather; then Thomen, who settled on the Feather below Farwell; then Michael C. Nye, who settled on the south of the Yuba, above Marysville. Cordua settled the same year I did, who settled where Marysville now is. These are all the first settlers. Q. 79. How long after that was it before Captain Sutter settled any one down in this part of the country, and what part? A. It must have been in 1846, 1848, and 1849, up on the American river. Q. 80. Did you ever hear Captain Sutter say anything about the land here where Sacramento is; and if so, what did he say? A. Yes, we had some words about the time; he and Flugge, Keyser and myself, went up the American, to the tree at Leidersdorff's line, on horseback, in 1842; he told me then that the tules and overflowed land was not included in his grant, and that he should move his stock up to Hock Farm. He said that the land was overflowed in the winter, and he had to take the stock out, and up to Hock Farm. He then told me that the land where Sacramento is, was all overflowed in the winter season, and that he could not keep any stock here. He told me he had a grant from Alvarado-that he gave him high land. Q. 82. Have you been out and looked at the land in Sacramento since you were examined last, to see how much tule there was, or had been formerly? A. I took a walk yesterday, towards and by the graveyard-the City Cemetery-and saw tule, and more extensively than I had supposed when answering. Q. 83. What would you say now about the extent of tule within the limits of the city? A. It looked very bad. 342 The United States vs. Sutter. Questions by Judge Burnett. Q. 84. Are you well acquainted with the limits of the city of Sacramento? A. Yes, so far as I went. Q. 85. Do you know where the southern line is? A. I do. Q. 86. What is the situation of your lot-its number? A. I have forgotten the number. It lies not far from the fort, on the high hill this side of the fort. Q. 87. Is that lot subject to overflow at any time? A. 87. It is not; it is on high land. Q. 88. Is the land where you live on Feather river subject to overflow at any time? A. It is high land, subject in high water to be flooded from the rivers, but the waters runs off directly. Q. 89. How long does the water stand upon any portion of the land claimed by you, and what portion? A. In 1850 there was water there about three or four days, and then it run off. During the floods, the water from the Feather backs round the part of my land farthest from the river, through the sloughs, and there it stands a short time-sometimes a week, never longer than eight days. Q. 90. Look at the plat of the official survey, and state whether all the land you claim there under Sutter is included. A. It is not. Q. 91. What part is not included? A. A small portion included in Lot No. 5. Q. 92. State whether Hock Farm is subject to overflow at any time. A. It is high land. Sometimes a little water goes up through the sloughs. Q. 93. Were you at Hock Farm during the freshet of 1850? A. I used to go there in 1850. I saw the water up as far as Sutter's house; back of it on the rising ground it was dry. Q. 94. Where did Captain Sutter reside from 1841 to 1848? A. Here, at the fort. Q. 95. Can you state the width of the overflow of the Sacramento, between the mouth of the American and the mouth of the Feather, on the east, towards the foot-hills? A. Between two and three miles. Q. 96. What is the distance from the Sacramento river to the Twelve-Mile House? A. About three miles. Q. 97. How close does the overflow come to that house? A. To within one or two hundred yards. Q. 98. State the length and width of the tule swamp from the mouth of the American river up as far as it goes. 84 A. It runs up about sixteen miles. Its width in places is three miles; some places more, and in some less. The United States vs. Sutter. 343 Q. 99. From the mouth of Feather river, along the Feather, up to the Yuba, state how far the overflow extends east of the Feather. A. When my place is reached, the land gets high. Between me and the mouth of the Feather, on the east, the overflow in high water is about six miles in width. Above me, there are some bottoms which are subject to overflow. Q. 100. Are you acquainted with the general character of the Sacramento valley, from the Buttes to below Sutterville? A. I am. Q. 101. What is the width of the overflow on the west of the Sacramento, between the Buttes and Sutterville. A. In 1841 I saw a good part under water, but could not take particular notice, as the place was covered with timber. Below the junction with the Feather, when I was there, the land was overflowed. There is a strip of high land, and then comes tule, which extends for some distance. Questions by attorneyfor Gelston. Q. 102. State the location of Hock Farm on the official plat. A. On the west side of the Feather, eight miles below Marysville. Q. 103. State the dimensions of Hock Farm. A. About two years ago, Sutter told me he had kept about four miles of it. Q. 104. You have said that Hock Farm is high land: how is it above and below? A. The same kind of land extended eight or nine miles below; above it is dry, nearly to the Buttes-about the Buttes there is some swamp. About where the Yuba comes in, the dry land extends eight or nine miles west of the Feather. Four miles above Hock Farm, the dry land is six or seven miles wide. Four miles below Sutter's house, on Hock Farm, the dry land gets about half a mile narrower, and gets narrower as you go down the Feather towards the Sacramento. West of this strip of dry land on the west of the Feather to the Sacramento river, is swamp and overflowed land. Above the Yuba, and between that and the Feather, the land is high and dry, except occasional bottoms. There are some bottoms on the east side of the river Yuba included in the survey. Q. 105. What do you mean by dry land? Do you mean land subject to occasional overflow, and generally dry, or land never overflowed? A. I call such land dry as can be cultivated all the year round. Sometimes, when the floods are very high, it might overflow more or less. Q. 106. When you speak of high land, do you mean the same thing? A. I do. Q. 107. In your conversation with Captain Sutter in 1842, respecting his grant from Alvarado, did he tell you that such land as that lying immediately between the fort and the Sacramento and the American rivers was excluded therefrom? 344 The United States vs. Sutter. A. He told me that the land granted him was the high land, throwing out the swamp land and the land overflowed in the winter time. He said if the stock got on low land in the summer time, they could not be got out in the winter when the overflows come. Q. 108. In 1841, what was the principal business of those holding and owning lands in this part of the country? A. Captain Sutter told me I would have to become a citizen-as a man could hold no land unless he was one. The principal business was farming and hunting. I lived on hunting five years. The people raised stock and grain. Between 1841 and 1847, the people farmed and hunted. No one had any stock but Sutter and Grimes. Q. 109. In what year did Sutter raise his first crop of grain? A. He commenced in 1841. There was no grain when I first came. Q. 110. Did the rancheros raise any more grain than was wanted for their own use? A. After they were settled, they did, and sold the surplus to Sutter. Questions by Judge Burnett. Q. 111. Do you know whether Sutter sold grain to the Russian company? A. He did; he had a contract with them. He raised it at the fort. I think in 1843 or 1844 he sent 40,000 bushels from he e. Q. 112. What year did he commence sending grain to the Russian company? 85 A. 112. In 1842 or 1843. Questions by attorneyfor Gelston. Q. 113. Who took this large amount of grain away for Sutter? A. His hired man, in his launch, down to San Francisco. He had a man hired for two or three years for that purpose. Q. 114. Was the fort not a general trading post for this section of the country? A. It was; the farmers came in for their supplies, and sold their grain. They bought clothing, coffee and sugar, blankets, lead, powder and shot, calico, soap, leather, boots and shoes; sometimes saddles and bridles. Examination closed. NICOLAUS ALGIER. Sworn to and subscribed before me this 28th of May, A. D. 1860. JOHN B. WILLIAMS, United States Commissioner. EXHIBIT D.-(See deposition of N. Algier.) John A. Sutter to N. Algier, Sept. 2, 1843. Whereas, by a certain deed bearing date September 1st, of the year eighteen hundred and forty-three, I, John A. Sutter, have given, granted, and conveyed unto a certain Nicolaus Algier a certain piece The United States vs. Sutter. 345 of land extending along the banks of Feather river, and measuring one square mile; and whereas the said land is vacant of timber, and the said Nicolaus Algier desirous of enjoying the privilege of cutting timber for his own use on some spot at no great a distance from his place, I herewith grant to the said Nicolaus Algier, and give the permission for him to cut on the southern borders of Bear creek as much timber as he, the said N. Algier, will stand in need of, and at such a place which extends from its mouth up the said Bear creek two miles. In testimony of the above, I have hereunto set my name and seal this 2d day of September, in the year eighteen hundred and fortythree, at Nueva Helvetia, in Upper California. J. A. SUTTER, [SEAL.] Endorsed: Received for registry Dec. 25th, 1849, and was duly recorded in book A, page 565, No. 524. H. A. SCHOOLCRAFT, Recorder, Sacramento District, California. Per GEO. S. FAKE, Deputy. EXHIBIT E.-(See deposition of N. Algier.) John A. Sutter to N. Algier, Sept. 13, 1849. Know all men by these presents, that I, John A. Sutter, of Hoc, in Alta California, for and in consideration of the sum of one dollar, to me in hand paid by Nicolaus Algier, the receipt whereof is hereby acknowledged, have this day granted, bargained, sold, and conveyed, and do by these presents grant, bargain, sell, and convey, unto the said Nicolaus Algier, and to his heirs and assigns forever, the following described tract, piece, or parcel of land, lying, situate, and being on Feather river in Alta California, measuring one mile square, and described as follows, to wit: the upper boundary of said land begins four hundred yards, English measure, above the present buildings and residence of the said Nicolaus Algier; thence extending down and along the banks of said Feather river, on which are situated said buildings and residence, the distance of one mile, English measure; the upper and lower boundaries of said land are at right angles with the line aforesaid on said river, and from the extremities of said line run in an eastern or southeastern direction from said river; and the back or eastern boundary of said land runs parallel with the aforementioned line on said river. To have and to hold the aforesaid tract of land, with all the appurtenances thereunto belonging, or in anywise appertaining, to him, the said Nicolaus Algier, and to his heirs and assigns forever. And I, the said John A. Sutter, do hereby warrant and forever defend the title and possession of the aforesaid granted, bargained, sold, and conveyed premises against any right of dower which my wife or her assigns may hereafter assert in or to said granted, bargained, sold, and conveyed premises. 346 T2ie United States vs. Sutter. 86 In testimony whereof, I have hereunto set my hand and seal this thirteenth day of September, eighteen hundred and fortynine. J. A. SUTTER. [SEAL.] Signed, sealed, acknowledged, and delivered in presence ofL. W. HASTINGS. J. A. HOPKINS. Endorsed: Received for record September 29th, 1849, and recorded in register A of deeds for Sacramento, California, pages 138 and 139. HENRY A. SCHOOLCRAFT, Recorder. By J. B. WITT. EXHIBIT F.-(See deposition of N. Algier.) John Bidwell, adm'r, to N. Algier, Oct. 26, 1849. This deed, made and entered into on this 26th October, 1849, between John Bidwell, administrator of the estate of Edward A. Farwell and Nicolaus Algier, each of Sacramento district, Upper California, witnesseth: That for and in consideration of the sum of twenty-three hundred dollars, the receipt whereof is hereby acknowledged, the party of the first part bargains, sells, and conveys to the party of the second part, all the right, title, and interest of the said Edward A. Farwell, his heirs and assigns, in and to the following described land, viz: bounded on northeast by the southwest boundary of Nicolaus Algier; on the southeast by a line running parallel with the general course of Feather river, and one mile distant from the same; on the northwest, Feather river. To have and to hold the said land, with all appurtenances thereunto belonging, to his heirs and assigns, and against the claims of all others by or through the party of the first part. In testimony whereof, I have hereunto set my hand and seal this day and date above written. J. BID WELL, [SEAL.] Administrator of Edward A. Farwell. Attest: J. S. THOMAS, PRESLEY DUNLOP. TERRITORY OF CALIFORNIA, District of Sacramento, ss: Be it remembered, that on this 27th day of October, A. D. 1849, before me came J. Bidwell, whose name is subscribed to the within and foregoing deed as having executed the same, and acknowledged the same to be his free act and deed, for the purposes therein mentioned. Given under my hand and seal the day and year aforesaid. J. S. THOMAS, [SEAL.] Judge Sac. Dist., Cal' a. The United States vs. Satter. 347 Endorsed: Received for recording February 15, 1850, and recorded in register A of deeds for Nicolaus, California, page 3. Pr. R. N. SNOWDEN, G- W. LAWRENCE.. EXHIBIT G.-(See deposition of N. Algier.) J. A. Sutter to E. A. Farwell, lMay 10, 1845. Know all men by these presents, that I, John A. Sutter, of New Helvetia, have this day given, granted, and conveyed, and by these presents do give, grant, and convey, unto Edward A. Farwell, his heirs and assigns, a certain mile square of land, situated in the district of Sacramento, Upper California, and bounded as follows, to wit: on the northeast by the southwestern boundary of Nicolaus Algier; on the southeast by a line running parallel with the general course of Feather river, and one mile from the same; on the southwest by a line running parallel with the southwestern boundary of the said Nicolaus Algier, and one mile distant from the same; and on the northwest by Feather river. To have and to hold the said tract of land unto the said Edward A. Farwell, his heirs and assigns, to the only proper use and behoof of the said Edward A. Farwell, his heirs and assigns forever. And I, the said John A. Sutter, and my heirs, 87 the said hereby granted tract of land unto the said Edward A. Farwell, his heirs and assigns, against every and all persons Whomsoever lawfully claiming, or to claim, by, from, or under him, them, or any of them, shall and will warrant and forever defend by these presents. In witness whereof, I hereunto set my hand and seal, New Helvetia, Upper California, May tenth, in the year of our Lord one thousand eight hundred and forty-five. J. A. SUTTER. [SEAL.] Signed, sealed, and delivered in presence ofJOHN BIDWELL. Endorsed: Received to be recorded January 11th, 1850, and same day recorded in register A of deeds for Nicolaus, California, page 1. RICHARD N. SNOWDEN, Alcalde. EXHIBIT H.-(See deposition of N. Algier.) Naturalization of N. Algier, Nov. 12, 1844. Sello quinto, medio real. Habilitado provisionalmente por la Aduana naritima del puerto de Monterey, en el Departamento de las Californias, para los aios de mil ochocientos cuarenta y cuarto y mil ochocientos cuarenta y cinco. MICHELTORENA. [RUBRIC.] PABLO DE LA GUERRA. [RUBRIC.] 348 The United States vs. Sutter. El Ciudadano Manuel Micheltorena, General de Brigada [SELLO.] del Egercito Mejicano, Ayudante General de la Plana Mayor del mismo, Gobernador, Commandante General e Ynspector del Departamto de Californias. Habiendo Dn Nicolas Altgeier, natural de Alemania, cumplido con las condiciones y requisites que previene las Ley que arregla el modo de conceder cartas de Naturaleza a los estrangeres, acompafiando los documentos necesarios, he venido por la presente, en naturalizar en la Republica Mejicana, al referido D" Nicolas Altgeier, en virtud de la facultad que por aquella Ley se me confiere. Monterey, a 12 de Nov., 1844. MAN'L MICHELTA. [RUBRIC.] MAN'L JIMENO, Sc'rio. [RUBRIC.] EXHIBIT I.-(See deposition of N. Algier.) J. A. Sutter to Henry Thomen, Oct. 18, 1846. Know all men by these presents, that I, John A. Sutter, of New Helvetia, Upper California, for and in consideration of eighty dollars, to me in hand paid, the receipt of which is hereby acknowledged, have this day granted, bargained, and sold unto Henry Thomen, of New Helvetia, all that tract or parcel of land described as follows: Three hundred and twenty acr-es of land situated on the south side of Feather river, Upper California; the eastern boundary is the land of Edward Farwell; south and western boundaries by the land of said John A. Sutter, together with all the rights and privileges thereunto belonging, or in anywise- appertaining. To have and to hold the said tract of land hereby granted and conveyed, or mentioned or intended so to be, as firmly and truly to all intents and purposes as the same is held unto me and my heirs by the Mexican government, unto the said Henry Thomen, his heirs and assigns, to the only proper use and behoof of the said Henry Thomen, his heirs and assigns forever. And I, the said John A. Sutter, and my heirs, the said hereby granted tract of land unto the said Henry Thomen and his heirs, against me and my heirs and assigns, every and all other person or persons whomsoever lawfully claiming or to claim from, by, or under him, them, or any of them, shall and will warrant and forever defend by these presents. In witness whereof, I hereunto set my hand and seal this eighteenth day of October, A. D. one thousand eight hundred and fortysix. J. A. SUTTER. [SEAL.] Signed, sealed, and delivered in the presence of usSAMUEL KYBURZ, JACOB RIPPSTEIN. 88 STATE OF CALIFORNIA, City and County of Sacramento, ss: I, Jerome Madden, county clerk and ex officio county recorder in and for said city and county, do hereby certify the above and fore The United States vs. Sutter. 349 going to be a full, true, and correct copy of an instrument of writing how on record in my office, in book "A" of deeds, pages 503 and 504, records of Sacramento county. In witness whereof, I have hereunto set my hand and affixed my official seal the ninth day of January, one thousand eight hundred and sixty, (9th January, A. D. 1860.) JAMES MADDEN, County Clerk and ex officio County Recorder. By JOHN F. MADDEN, Deputy Clerk. Endorsed: Certified copy of deed, book A of deeds, pages 503 and 504, Sacramento county records. Oct. 18, 1846. EXHIBIT J.-(See deposition of N. Algier.) John A. Sutter to Fred'k Emory, Dec. 10, 1849. This indenture, made this 10th day of December, in the year of our Lord one thousand eight hundred and forty-nine, between John A. Sutter, of Hock Farm, on Feather river, in Upper California, party of the first part, and Frederick Emory, of Sacramento city, party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of three thousand and six hundred dollars, to him in hand paid by the said party of the second part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath given, granted, bargained, sold, and conveyed, and by these presents doth give, grant, bargain sell, and convey unto him, the said party of the second part, all that tract and parcel of land lying and being on the east side of the Feather river, in Upper California, which is bounded as follows, that is to say: Beginning at a point on the east bank of Feather river, one-half mile below the southern boundary of Farwell's tract of land; thence down the said river one mile; thence easterly back from the river one mile; thence northerly one mile; thence westerly one mile, to the point of beginning; being one square mile, and in the form of a square as near as may be, and containing sik hundred and forty acres, more or less. To have and to hold unto the said party of the second part, his heirs and assigns forever. And the said party of the first part, for himself, his heirs, executors, and administrators, hereby covenants with the said party of the second part, his heirs and assigns, the above-conveyed land and premises, against the tlawful claims and demands of all persons whatsoever by these presents forever to warrant and defend. In testimony whereof, the party of the first hath hereunto set his hand and seal on this the day and year first herein written. J. A. SUTTER. [SEAL.] Signed, sealed, and delivered in the presence ofROLAND GELSTON. ROBERT R. PIERPONT. 350 The United States vs. Sutter. UPPER CALIFORNIA, District of San Francisco, ss: Be it known, that on the tenth day of December, A. D. one thousand eight hundred and forty-nine, before the subscriber, a notary public in and for the district aforesaid. duly commissioned and sworn, personally appeared John A. Sutter, party grantor in the deed hereto annexed, (the said John A. Sutter being personally well known to me,) and acknowledged the same to be his act and deed. Given under my hand and official seal, at San Francisco, on the day and year above written. [SEAL.] ARCHIBALD C. PEACHY, Notary Public. 89 STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxon, county recorder in and for Sutter county, do hereby certify that the above and foregoing instrument of writing is a full, true, and correct copy of an instrument now of record in my office, in book "A" of mortgages, on pages 160 and 161, records of Sutter county, California. Witness my hand and official seal this 7th day of October, A. D. 1859. C. E. WILCOXON, County Recorder, By S. S. RUSSELL, Deputy Recorder. Exhibit K.-(See deposition of N. Algier.) J. A. Sutter to T. J. Green, Dec. 11, 1849. This indenture, made and concluded this eleventh day of December, in the year of our Lord one thousand eight hundred and forty-nine, by and between John A. Sutter, of Hock, in Upper California, party of the first part, and Thomas Green, of California, aforesaid, wit" nesseth: That the said party of the first part, in and for the consideration of the sum of five dollars to him in hand paid before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and for the further consideration of the sum of six thousand and four hundred ($6.400) dollars secured to be paid by the said party of the second part, hath bargained and sold, and thy these presents doth give, grant, bargain, sell, release, and convey, unto the said party of the second part, his heirs and assigns forever, all of that piece, parcel, or tract of land lying and being in the Territory of Upper California aforesaid, bounded and described as follows, viz: Beginning at a point on the south side of Bear creek, a tributary of Feather river, one and one-half miles above the upper boundary of Nicolaus Algier's rancho, and running easterly along the upper boundary of John A. Sutter's reservation of land between the said Algier's rancho and the land hereby conveyed one mile; thence northwardly The United States vs. Sutter. 351 in a straight line parallel, as nearly as may be, with the course of said Bear creek, and continuing one mile distant therefrom, the distance of two (2) miles; thence in a straight line running parallel with the first mentioned boundary premises to the southern bank of Bear creek aforesaid; thence along the said southern bank of the said creek to the place of beginning. To have and to hold the above-described and hereby conveyed piece, parcel, or tract of land, with all the privileges and appurtenances thereto belonging, unto the said party of the second part, as fully and completely as the same was held by the party of che first part. And the said party of the first part, for himself, his hecrs and assigns, hereby warrants and defends the said party of the second part, his heirs, executors, administrators, or assigns, in a good, indefeasible, and absolute title to the above-described premises. In witness whereof, I, the said party of the first part, do hereunto [SEAL.] sT my hand and seal the day and year first herein written. J. A. SUTTER. Signed, se(aled, and delivered in the presence of, as witnessesT ilUTCHINSON. ROBEIRT R. PIERPONT. UPPER CAL.';^RNIA, Di'.ri..t of San Francisco, ss: Be it known, that on this eleventh day of December, in the year of our Lord one thousand eight hundred and forty-nine, before the subscriber, a notary public in and for the district aforesaid, duly commissioned and sworn, personally appeared John A. Sutter, party grantor in the hereto annexed deed, (the said John A. Sutter being personally known to me,) and acknowledged the said instrument to be his act and deed. Given at San Francisco, under my hand and notarial seal, the day [SEAL. and year above written. — A.I ARCHIBALD C. PEACHY, Notary Public. Recorded in the office of the alcalde, in book "E" of land titles, on pages 363, 364, and 365, in San Francisco, December 13th, 1849, at 5 p. m. JAMES LUNING. -- BEACH, Recorder. 90 Came into office for record August 13th, 1851, at 11 o'clock a. m., and duly recorded in book "C," folios 94, 95, and 96. J. S. REARDAN, Recorder, Sutter County. STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxon, recorder of Sutter county, do hereby certify the foregoing to be a true and correct copy of a deed, etc., on book C of deeds, records of Sutter county, pages 94, 95, and 96. 352 Ihe United States vs. Sutter. In witness whereof, I have this 22d day of September, 1856, at my office in Yuba city, affixed my hand and official seal. C. E. WILCOXON, Recorder, Per E. O. HASTINGS, Deputy Recorder. EXHIBIT L.-(See deposition of N. Algier.) J. A. Sutter to Alfred Lawton, April 11, 1850. Know all men by these presents, that I, John A. Sutter, of Hock Farm, on Feather river, Upper California, for and in consideration of the sum of thirty-six hundred dollars, to me in hand paid by A. Lawton, the receipt whereof is hereby acknowledged, have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, unto the said A. Lawton, his heirs and assigns, all that certain piece or parcel of land lying and being on the east bank of Feather river, Upper California, and bounded and described as follows: Beginning at a point on the east bank of Feather river, two miles and one-half below the southern boundary of N. Algier's ranch; thence down Feather river for one* mile; thence east for one mile; thence north for one mile; thence west for one mile, back to the place of beginning, (all the courses being magnetic,) containing six hundred and forty acres, be the same more or less. To have and to hold the above-granted land and premises to him, the said Lawton, his heirs and assigns, to his and their sole use and behoof forever. And I, the said Sutter, for myself and my heirs, executors, and administrators, hereby covenant to and with the said Lawton, his heirs and assigns, that I am well and truly seized of the above-granted land and premises, and have lawful right and authority to convey the same; and I, for myself, my heirs, executors, and administrators, do hereby warrant and defend the same against the lawful claims and demands of all persons whomsoever. In testimony whereof, I have hereunto set my hand and seal on this the eleventh day of April, A. D. eighteen hundred and fifty. JOHN A. SUTTER, [SEAL.] By his attorney, FRED. EMORY. Signed, sealed, and delivered in presence ofCHAS. G. ALEXANDER. PHIL. W. KEYSER. STATE OF CALIFORNIA, County of Sutter, ss: On this 15th day of July, A. D. 1850, personally appeared before me, a deputy recorder in and for the said county, Fred. Emory, as agent and attorney for John A. Sutter, known to me to be the person described in and whose signature is subscribed to the above instruThe words "thence for one mile " being first interlined. The United States vs. Sutter. 353 ment or deed, and duly acknowledged that he executed the same freely and voluntarily, for the uses and purposes therein mentioned. In testimony whereof, I hereunto set my hand and affix the seal of office the day and date aforesaid. G. W. LAWRENCE, SEAL.].Deputy Recorder for Sutter County. Came into office for record July 15th, A. D. 1850, 10 o'clock a. m., aind duly recorded in book A, folio 88. G. W. LAWRENCE, Deputy Recorder. 91 STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxon, county recorder in and for Sutter county, do hereby certify that the above and foregoing instrument of writing is a full, true, and correct copy of an instrument now on record in my office, in book "A" of deeds, Sutter county records. In testimony whereof, I have hereunto set my hand and official seal this 14th day of October, A. D. 1859. [^SE~A~L.1 C. E. WILCOXON, County Recorder, By S. S. RUSSELL, Deputy Recorder. Exhibit M.-(See deposition of N. Algier.) J. A. Sutter to G. W. Lawrence, July 24, 1850. Know all men by these presents, that I, John A. Sutter, of Hock Farm, county of Sutter, State of California, of the first part, for and in consideration of the sum of twenty-four hundred dollars, to me in hand paid by George W. Lawrence, of Nicolaus county and State aforesaid, of the second part, the receipt whereof is hereby acknowledged, have given, granted, bargained, and sold, and by these presents do give, grant, bargain, and sell, unto the said George W. Lawrence, his heirs and assigns, all that certain tract of land situated in the county of Sutter aforesaid, and bounded and described as follows, that is to say: Beginning for the same on the east bank of Feather river at the point where the southern boundary of F. Emory's land touches said river, and running thence southerly, bounding on and following the meanderings of said river three (3) quarters of a mile; thence easterly bounding on the northern line of the land known as "Louis' Rancho" one mile; thence northerly three (3) quarters of a mile; thence westerly bounding on the southern line of F. Emory's land aforesaid, to the place of beginning; containing four hundred and eighty acres, more or less; it being the same tract of land which-was sold by said John A. Sutter to one B. Simmons, (of San Francisco,) but never conveyed to said B. Simmons, by reason of the non-payment of the consideration agreed upon; and also "excluded and reserved" [REC. CCLVIII, D. T. 1862.] —23 354 The United States vs. Sutter. from the property conveyed July the first, (1st,) eighteen hundred and fifty, by John A. Sutter and Ann Sutter (his wife) to Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, (all of Sacramento city.) To have and to hold the above-described tract of land and premises, with all the hereditaments, appurtenances, and improvements thereto belonging or in anywise appertaining, unto him, the said George W. Lawrence, his heirs and assigns forever. And I, the said John A. Sutter, for myself, my heirs and assigns, executors, or administrators, do hereby covenant and agree to and with the said George W. Lawrence, his heirs and assigns, that I am well and truly seized of the above-granted land and premises, and have lawful right and authority to convey the same; and I, for myself, my heirs, executors, and administrators, do hereby warrant and defend the same against the claims and demands of all persons whomsoever. In testimony wherof, I hereunto set my hand and seal this twentyfourth day of July, A. D. eighteen hundred and fifty. J. A. SUTTER. [SEAL.] In presence of witnessesCHARLES PENDRICH. HENRY KAISER. STATE OF CALIFORNIA, County of Sutter, ss: On this 10th day of December, A. D. 1850, personally appeared before me, county judge within and for said county, John A. Sutter, known to me to be the person described in and who executed the above instrument of writing, and acknowledged the same to be his voluntary act and deed, for the uses and purposes therein mentioned. Witness my hand and seal of the county court of said county of S Sutter, the day and date above written. L~[SEBAL.J ] G. N. MOTT, County Judge, Sutter County. Came into office for record Dec. 11th, 1850, at 10 o'clock a. m., and duly recorded in book A, folios 245 and 246. GEO. GOLDER, 92 Deputy Recorderfor Sutter County. STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxon, county recorder in and for Sutter county, do hereby certify that the above and foregoing instrument of writing is a full, true, and correct copy of an instrument now on record in my office in book " A" of deeds, on pages 252 and 253, records of Sutter county. Witness my hand and official seal this tth day of October, A. D. 1859. 1[SEAL.] 1859 C. E. WILCOXON, County Recorder, By S. S. RUSSELL, Deputy Recorder. The United States vs. Sutter. 3K5 Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep. of Henry Thomen, for U. S. United States district court, northern district of California. THE UNITED STATES vs. JOHN A. SUTTER. SACRAMENTO, May 28, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came Henry Thomen, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket 93 of the said board of commissioners, and was duly sworn and testified as follows: Present: E. Randolph, for U. S.; E. Johnson, for R. Gelston; Judge Burnett, for claimant. Questions by E. Randolph, for U. S. Question 1. State your name, age, residence, and occupation. Answer. Henry Thomen; age, 45; residence, Sacramento; occupation, gardener. Q. 2. When did you first come to this country? A. In 1846, from Independence, Missouri. Q. 3. Where did you first settle? A. At the fort in Sacramento. Q. 4. What was your occupation there? A. I worked for Capt. Sutter; done anything he told me. Ite sent me up on the Yuba to make a garden for him. Q. 5. Where did Capt. Sutter raise his grain? A. Here at the fort. Q. 6. Where were his largest fields? A. In 1846-'7, his largest field was above the pasture lot towards where Smith's garden now is. He had a piece of ground on Poverty Hill of about 50 acres; another small field on the south side of the fort, on the other side of the slough near the fort, at the head of the pasture. Q. 7. Do you recollect when the pasture-field was inclosed? A. I do not. Q. 8. Did you ever see high water from the Sacramento? A. Yes; the first time in the spring of 1847. From L street pretty near to the fort it extended. 1 could not see any water above 356 The United States vs. Sutter. L street. In 1847 we went to the fort through J street in a wagon, In 1848-'49 we had no overflow. In 1849-'50, from about first January, we had very high water, and went to the fort from the embarcadero in a boat. Q. 9. When you first came here in 1846, what people were living on Capt. Sutter's tract? A. Mr. Montgomery, about five miles from here at Brighton, and another man there named Lord. They were in his employment. Montgomery made guns; Lord kept stock for himself. Another maa named Bruner, who kept stock and a dairy for himself. Another named Cordel, who lived at Sutterville. Leidesdorff lived up on the American; on the other side of the American river lived John Sinclair, about three miles. Nicolaus Algier lived about twenty-five miles from here on Feather river. At Hock Farm a Kanaka lived, named Harry; Mr. Cordua lived where Marysville is now. Mr. Farwell had land below Algier. He had gone to the States, and died on the way. I bought from Sutter, 1846, three hundred and twenty acres adjoining Farwell, (objected to,) and paid him $80 for it. I had my deed recorded in 1849 or 1850. Q. 10. When you bought that land from Capt. Sutter, did he say anything about his title; if so, what did he say? A. He did. He said he got twenty-two leagues of land from the government of Mexico; he liked to have this land settled, and would sell for a cheap price, so as to have it settled; and he said his line commenced two miles below Sutterville, run up above Marysville, and took in the Buttes. Q. II. Did he offer to sell you land anywhere within those limits? A. No; he offered to sell me anywhere on the Feather or Bear rivers. I could have it where I liked about there. Q. 12. Did he say anything about dry land and overflowed land? A. He said the dry land belonged to him, and the low land should be given to the family of his oldest son. I think he said he got two grants-eleven leagues each; that is what I understood him to say. Q. 13. You understood him to say, then, that those two grants comprised all he had granted to him? A. So I understood him. Q. 14. And, as you have just said, this was high land? A. That is what I understood. Q. 15. Do you own any land in Sacramento now? A. I am just outside the city-this side of Smith's gardens-26- o~o acres. I claim to have th-e Sutter title. The land I hold is part of one of the fields Sutter once cultivated. 94 Questions by attorneyfor Gelston. Q. 16. Did you know a man living east of Brighton, and near the Leidesdorff line, named Perry McKoon? A. I knew Perry McKoon; when I came he lived on the Cosumnes. Montgomery got his land from Sutter. The United States vs. Sutter. 357 Cross-examination.-Questions by Judge Burnett. Q. 17. You say where you live now you claim under the Sutter title? A. I do. I have no other deed except the Sutter. Q. 18. Is not your Sutter title in dispute between yourself and another person? A. Part of it; not the 262 acres. There is another piece to which I have the Sutter title, but am not in possession. Muldrow is in possession, and has the Sutter title also. It is now in law. Examination closed. HENRY THOMEN. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep oJ J. N. Babcock, for U. S. United States district court, northern district of California. THE UNITED STATES vs. JOHN A. SUTTER. SACRAMENTO, May 28, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came J. N. Babcock, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket 95 of the said board of commissioners, and was duly sworn, and testified as follows: Present: E. Randolph, for U. S.; E. Johnson, for R. Gelston; Judge Burnett, for claimant. Examined on his voir dire. Questions by Judge Burnett. Question 1st. Are you interested in the subject of this suit in any way? Answer. No, siro I am not included in the present official survey. Questions by United States attorney. Q. 2. State your name, age, residence, and occupation. A. I. N. Babcock; age, 32; residence, Sacramento county; occupation, farmer and teamster. Am at present a supervisor of the county. Q. 3. Where did you come from to California? A, From Ohio; was born in Rhode Island. 358 The United States vs. Sut'er. Q. 4. When did you come to California? A. In 1849, and settled at my present place of residence. Q. 5. Were you here during the flood of 1849-'50? A. I was. Q. 6. What was your occupation during the flood? A. I was occupied on the ranch. Q. 7. Describe the flood of 1849-'50? A. I think most of the site of the present city was flooded, except a knoll at the public square of about 5 to 10 acres; and if I remember right, along where I street now is there was some land not overflowed, and some along the bank of Sutter lake. Q. 8. Did you see anything of the flood of 1852-'3? A. I did. Q. 9. What was your occupation at that time? A. I was engaged in farming. Q. 10. Have you had anything to do with the bridge over the American? A. I never was employed at the bridge, known as Lyell's bridge, but watched it during high waters to see about drift wood which might obstruct it. Q. 11. What do you know about the flood of 1852-'3? A. It was rather higher than the flood of 1849-'50. I saw them both. In 1852-'3, I recollect the people passed from the stores in boats. In going up to Hoboken, on the south side of the American, the boats passed up without going through the draw of the bridge. The steamboats passed round the draw over a week. At that time the people went out to the fort in boats from the town of Sacramento. Q. 12. Look upon the "View of Sacramento city, as it appeared in January, 1850," and state whether it is a good representation of the city at that time. A. It does; except that there appears to be too much water along the bank of the river. [Offered in evidence by the United States, and marked Exhibit N.] The houses, the boats, and the people and the water all look natural, and also the tents on the Indian mound, called the public square. Questions by attorneyfor Gelston. Q. 13. How far do you reside from the American river, and how far from the Sacramento? A. From a mile to a mile and a half, in a straight line, from the Sacramento, on the north bank of the American. Q. 14. How far is the bridge you have spoken of from the Indian mound, or public square? A. About a mile and a quarter. Q. 15. Do you know where the New Helvetia Cemetery is situated? If so, state how far that is from the public square, in what direction, and on what street. A. I do; it is on the left of J street, near Twenty-second street, northeast from the fort about a quarter of a mile. The United States vs. Sutter. 359 96 Q. 16. Do you know where Judge Ralston lives? A. I do not. Q. 17. In the overflow of 1849-'50, how far out on J street did the water extend? A. I cannot tell, but should think near the cemetery. Q. 18. How far up on the south side of the American river, between that and the cemetery? A. I cannot tell very well. Q. 19. How far in 1852-'3? A. Near the cemetery, as itdid in 1850. I went in 1852-'3 up to Hoboken on the steamboat. I cannot say positively whether the country was overflowed above the cemetery or not. It was dry immediately on the south bank of the river. The old levee was along the south bank of the American at that time. I did not pay much attention to it. Q. 20. Could you not have taken or mistaken the levee you speak of for the bank of the river itself? A. My impression was, that there was dry land on the bank of the river, except where the sloughs came in. Q. 21. In a low, level country, is not the banks of any stream or river generally higher than the land immediately back from the banks? A. It has been the case in this State as far as I know. It is generally so. Questions by Judge Burnett. Q. 22. Is Lisle's bridge within the limits of Sacramento city? A. I think not. Q. 23. How far from the line of A street is it to the bridge? A. From the junction of Twelfth and A streets, where the road crosses the levee, to Lisle's bridge, it is between a quarter and half a mile. Q. 24. State whether on the south side of the American there is a low depression of the ground, over which you saw the steamboats running in the flood of 1852-'3? A. Where the road crosses there is something like a slough. The land rises from there gradually until it strikes the river. On the immediate bank of the river there was very little depression. It was very nearly as high where they entered the American as at other places. Q. 25. Is not the land between the American river at the bridge and A street, much lower than the land lying south of A street? A. Some is, and some not. Q. 26. During the flood of 1849-'50, what route did you take from your residence to the embarcadero in front of the city? A. We crossed the American in a boat, pulled it over the old levee and put straight for the embarcadero in the boat, or went where we chose to go. Q. 27. In 1853 were B, C, and D streets overflowed? A. I don't remember. Q. 28. Do you remember the slough that runs near Sutter's fort? 360 IThe United States vs. Sutter. A. I never passed up it. I believe it comes out near the Tivoli House. Q. 29. During the flood of 1852-'3, what route did you take from your residence to the embarcadero? A. The same as we did in 1849-'50. In 1851-'2, I don't remember coming in, but the old levee broke in, and the town was flooded. Examination closed. I. N. BABCOCK. Sworn to and subscribed before me this 28th day of May, A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. (EXHIBIT N.-(See deposition of I. N. Babcock.) [View of Sacramento city, as it appeared during the great inundation in January, 1850.] (Here follows maps page 96.) Endorsed: Filed June 18, 1860. W. HI. CHEVERS, Clerk. 97 Debp. of E. Bray, for U. S. United States district court, northern district of California. THE UNITED STATES vs. JOHN A. SUTTER. SACRAMENTO, May 28, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came Edmund Bray, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: E. Randolph, for U. S.; E. Johnson, for R. Gelston; Judge Burnett, for claimant. Questions by United States attorney. Question 1. State your name, age, residence, and occupation. Answer. Edmund Bray; age about 52; residence, Sacramento city; occupation, laborer. Q. 2. When did you first come to California? A. In December, 1844, from Missouri, and came to Sutter's fort. I did not enter into Sutter's employ; the country was then in a state of revolution. The United States vs. Sutter. 361 Q. 3. Did you afterwards enter into his employ; and if so, when? A. I volunteered under him to go down to the Micheltorena war in the first part of 1845. I was down there three months; came back, and was employed by Sutter in April, 1845, as overseer of his working Indians. He had some three or four hundred at a time cutting his grain. He had an inclosure near his house, extending east from the fort and on the south. It run down to the American river, which formed one side. There was a ditch running from the old cemetery down to the tanyard. Q. 4. Did he have any other land inclosed? A. He had a small field close to the fort, between where L and M streets run through, some forty or fifty acres. He had a pasturefield adjoining the place on the river where he raised the wheat; this pasture-field was separated from the wheat by the ditch. 98 Q. 5. There was a ditch that run from the fort to the head of the lake, and from there to the American river, was there not? A. There was a ditch that run from the fort to the head of the lake, then the lake and the river formed the inclosure; and another ditch from the American river to the fort completed the inclosure, and cut it off from the rest. This inclosure was the pasture. East from the last-mentioned ditch, up the American, and north from the fort, there was another inclosure, a smaller one. From the American river, where the tannery was, another ditch went up to where the Sutter flower garden now is. On the line where the ravine runs up there was no other inclosure but by Indian cabins. Towards Smith's garden there was no inclosure. Part of the inclosure was cultivated and part was not. Along the ravine or slough by the fort the distance is very short to where the Sutter flower garden now is. In the field I call the pasture there was no cultivation; in the other there was some. Then there was another field, lying to the east and south of the fort; on the north and partly on the eastern side it was inclosed by a ditch. The rest of the eastern side, the southern side, and part of the western side, were open; there were Indian cabins there, and the Indians guarded the field while the grain was growing and harvesting. The rest of the western side, up to the northern line, was inclosed by a ditch. Then there was another fifty-acre field inclosed by ditches. It lay immediately adjoining the pasture lot on the southeast, and southwest from the fort. The southeast ditch of this field was but a short distance from the field mentioned as lying south and east from the fort, so that the ditches of the two fields formed something like a lane, through which you passed out from the fort to the southwest to the country beyond. Coming up by land from the embarcadero to the fort, you would be obliged to pass through this lane, the fields lying on either side. Q. 6. What was the fifty-acre field used for? A. For wheat; a corner was used as a garden. 362 The United States vs. Sutter. Q. 7. When was the inclosure made for the pasture-field? A. In 1847. It was made to take care of the working cattle during the time of cultivation. The persons who constructed the ditch were McDonald, an Irishman; two brothers named Owens, Welchmen; James Grixton, an Englishman; and Henry Marshall, an American. Cross-examination.-Questions by Judye Burnett. Q. 8. State the amount of wheat sowed by Sutter in all the fields in 1845. A. In 1845, I think he sowed about two hundred or two hundred and fifty fanegas-say a little over five hundred bushels. Q. 9. How much in 1846? A. Five hundred fanegas. Q. 10. Were the ditches you have spoken of constructed before you came? A. They were, except the one made in 1847. Q. 11. Did you ever know any of the ditches injured by the floods here? A. No, sir. Q. 12. Do you remember any land cultivated in vegetables by Sutter on the bank of Sutter lake, or by any other person? A. There was a garden cultivated in 1847 by a man named Linhart. From the head of Sutter lake a ravine made up to the American river, where there was a lake, and on the banks of that lake or lagoon was this garden. Q. 13. In whose employ was Linhart then? A. Sutter employed Linhart on shares. Q. 14. Below Sutter lake, where the water-works now are, was there any cultivation? A. There was a small piece in 1846 and 1847 cultivated by Indians. Q. 15. How may cattle and horses had Sutter running round the fort in the years 1844-'45-'46-'47 and'48? A. In 1844 I didn't remain here. In 1845 he had a few beef cattle and some working cattle. His horses he kept on Hock Farm, and brought them here when wanted for threshing, and then sent them back again. In 1846 he had sixteen plows and six harrows going. In 1847 he had to buy some cattle from John Sinclair. He had, in 1846, from 2,000 to 3,000 head of sheep. He had about 2,000 sheep here when I first came. He had a good many hogs running about at that time. The Indians procured the tule for the construction of their houses from below Sutterville. 99 The sheep were kept in the summer season below the Sutterville line on the bottoms; in the winter season on the upland, generally at Brighton. I recollect a small corral at Sutterville, on the ridge. It was used for hogs and sheep. Questions by attorney for Gelston. Q. 16. Why did Sutter change the sheep from the place below Sutterville to Brighton in the winter season? Ttle United States vs. Sutter. 363 A. He wanted to change pasture to high land in winter from low land in summer. Q. 17. What was the advantage of changing? A. To change the corrals to keep them from getting muddy. I had nothing to do with taking care of the sheep. Examination closed. his EDMUND X BRAY. mark. Sworn to and mark made before me this 28th day of May, A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep. of John Prentice, for U. S. United States district court, northern district of California. THE UNITED STATES ) JOHN A. SUTTER. SACRAMENTO, May 29, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came John Prentice, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land 100 claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: E. Randolph, for U. S.; E. Johnson, for R. Gelston; Judge Burnett, for claimant. Questions y United States attorney. Question 1. State your me, age, residence, and occupations Answer. John Prentice; age, 60; residence, Sacramento city; occupation, surveyor. Q. 2. When did you come to California? A. I arrived in August, 1849; came to Sacramento same month, and have lived here most of the time since. Q. 3. Have you seen any overflows of the site of the present city of Sacramento. If so, state what you know concerning them. A. On the 4th April, 1850, the water was coming in from Sutter lake through the sloughs into the city. I went to work to stop the water. The water was also coming in from the Sacramento from 0 street. I recollect passing down that way two or three streets at that time. 364 The United States vs. Sutter. I recollect the levee was built in October, 1850. I don't recoIlect when it was begun; I think before Mayor Bigelow was shot in August. I think it was raised about four feet on the bank of the river. It struck the high bank at Sutterville about three-eighths of a mile from the river, then ran to the river, then up the Sacramento river to I street, then followed up the Sacramento, crossing the outlet of Sutter lake and up the American, I should think, about half mile up the bank, then turned off, leaving out a portion of low land, and struck the American again in a straight line at Lisles' bridge; then up the river until it passed through what is now Smith's garden. It struck a high land above Smith's garden, I don't know exactly how far; I did not trace it further than Smith's garden. I don't know how much further up the American it did go. The levee in some places was higher, and in some lower. The height of the levee was from three to five feet. I think it was 20 feet wide in front of the city. In other places from ten to twenty feet; ten feet wide at top. The levee was built by authority of the common council of the city. If I remember, there was a vote of the citizens taken. I am sure there was. The next flood was the 7th March, 1852. The American river broke through the levee above the city. I don't recollect where it did break at that time. The water came up around my house and washed away my wood. My house was on Ninth street, between N and 0. About one hundred cords of wood were washed away. I was away when the flood first came, but got here a few days afterwards, and then found the water about a foot deep around my house. The greater part of the town was covered at that time, I think, and remained so about a week. In the streets the water remained about a fortnight. There were places deeper than at my house. It was deeper in the lower part of the city, south from my house. After the water went down the streets were left very muddy. Before that we used boats. I came home from about fifteen miles below on the Sacramento river in a boat about twenty feet long, four feet wide-a scow-boat-six persons on board. It drew perhaps a foot or eighteen inches. The boat came up all the way about half a mile east of the channel of the river until I reached home. During that flood I don't recollect seeing scow-]jats drawn by oxen used. The next flood the water came in inWcember, 1852. The levee broke at the Tivoli House; the water came down and surrounded my house; kept rising until the 1st January, 1853; it reached the highest point on the last night of 1852; the depth then at my house 101 was about four feet. It covered the city more completely than before. I suppose the water was three weeks before it subsided at my house. During this time goods were moved in scowstaken from the levee and carried across the city to the high land east of the fort. They went by my house. After the water went down the goods were moved round the city by boats drawn through the mud by oxen, I suppose for about a fort" The United States vs. Su!ter. 365 hight. Large quantities of willows were then brought in and thrown eover the streets in order to make them passable for wagons. In April, 1853, there was another flood. That commenced by the backing of the waters of the Sacramento by the breaking of the levee at Sutterville. The break was about twenty rods long; the levee was fourteen or sixteen feet high, and twenty feet broad on top, and perhaps sixty feet at the bottom. In January, when the city was flooded, a waste gate was constructed in the levee to let the water out. This not being large enough, a break of some twenty rods took place, which was not repaired, and in April it was through this break the flood came. I think it came up to my house on about a level with my floor, not quite so high as that of 1852. I raised the floor about a foot. It was about a fortnight before the water subsided. I think the water from this flood was on my gardeni until June. The garden was between N and O streets, on Seventh. After the flood of 1852 there was a new levee built, commencing on the American, at Thirtieth street; thence southeasterly until it struck the high land half a mile east of the fort. There it stopped at that time. In 1853 this piece of levee broke. At first the old levee broke at Tivoli garden; then the water stood against the one built in 1852 for some time, until it broke through about half-way between the river and the high land, say, about twenty rods. This was never repaired. The old one was repaired and widened. A third one was commenced in 1853, near the river, from a portion of the old levee, and run along Thirty-first street to G, and from G diagonally to the intersection of K and Twenty-seventh, near the fort, continuing generally in the same direction to Twenty-third and M streets: thence down M to Twentyfirst street; thence diagonally to the middle of N, a little below Nineteenth street; thence southwardly to Q street; thence diagonally to the intersection of Sixteenth and R; thence down R street to the river. I should have said that in 1852 a new levee was constructed from the foot of I, on the south side of Sutter lake, up to the centre of Sixth; thence east of Sutter lake, and by Willow lake, up to the old levee near the river at Twenty-sixth street. The levees, as now existing, and as they were constructed in 1852 and 1853, are correctly delineated on this map C. To be precisely accurate, I might say that for a short distance the American river, from Twenty-sixth to Thirtyfirst street, is a part of the old levee. These levees were constructed by the city after a vote of the people, by order of the common council. I think R street levee was raised higher, consequently wider and stronger. On the river it was enlarged and raised. The levee on the north, built in 1852, was also made stronger and higher than the levees of 1850. Q. 4. Did you accompany Mr. Doherty when he made the survey represented by Exhibit C? A. I did. Q. 5. Look at the meandering red line on the east side of said exhibit, marked "Meandering line dividing the swamp and overflowed 366 The United States vs. Sutter. land from the high land," and say whether or not it correctly represents the apparent line of division between the high lands and the low lands, and particularly whether it includes any high lands, and designates such as low lands. A. It does represent the apparent line between the high and the low lands, and does not include any high lands under the designation of low lands. Q. 6. But does it not at some points leave out lands which might well have been included as low lands? A. The first line from the river to the first angle runs through low land, and line No 16 also, the low land extending east and outside of it at least half a mile. Line No. 20 also; line No. 1 also, and some other points between the fort and the American. Q. 7. Look at the certified copy plat of official survey, being the official survey of the grant of John A. Sutter, and now under consideration, and say whether Exhibit C, or any part thereof, represents any portion of the tract included in said official survey; and if so, what portion. A. It does. The whole of that portion of Exhibit C laid off into streets, representing the city of Sacramento, is included in the official survey, as shown by the plat. Some portions of the land shown on the southern end of Exhibit C are not included-a small trian102 gular piece. A point of land comprised east of a line drawn from No. 12 to No. 20, on Exhibit C, is also not included on the official map. Q. 8. You say, then, that both maps contain the city of Sacramento, but that Exhibit C shows a little more land on the south than the plat of the official survey? A. I do. Q. 9. Then Exhibit C represents, with the exception you have mentioned, that portion of the official survey mapped as lying south of the American river? A. It does. Q. 10. Look at Exhibit C, observe that portion colored darker than the rest, and say whether or not it represents any of the natural features of the land as it appeared at the time you first knew it; and if yea, what. A. The dark surface represents where the tule was at that time; around the border, next the river, the timber land. Q. 11. State whether or not that dark portion correctly represents the extent of the tule lands at that time. A. It does. Q. 12. If you think that the tule lands were of greater or less extent than represented on Exhibit C, please indicate to what points you think it did extend. A. I don't know that I see any place that is not entirely correct. Q. 13. Look at the northern part of the exhibit, and say whether there were any tules in that part, and where. A. There were willows and grass on that part. Willows grow in The United States vs. Sutter. 367 this country chiefly in low, sandy places; sometimes they grow in wet places. Q. 14. Do you own any land in this city? A. I do. Q. 15. Do you claim to own it under the Sutter title, or as a settler? A. Under the Sutter title. I claim none as a settler. Q. 16. Have you any interest in this controversy, one way or the other? A. None. Q. 17. Are you acquainted with the Sacramento bottom lands up to the Feather? A. Five or six miles up, north of the American. Q. 18. How does that land compare with that south of the American? A. I think it is about as low as that there; it might be a little lower. Q. 19. When these floods came, did it overflow up there as well as here? A. It did-in width about one and two miles; no very great difference in that and this here. Q. 21. How is the land on the other side of the Sacramento river? A. Sometimes overflowed; have seen it overflowed for miles about the same way as here. Q. 22. During the floods of which you have spoken, was the land on the west side of the Sacramento overflowed in the same manner as the lands east of the Sacramento, and both north and south of the American? A. It was. I once climbed the mast of a vessel to see, and saw the country all overflowed as far as I could see north and west. Q. 23. Then, looking from the mast of that vessel, both sides of the Sacramento and American rivers presented one vast sheet of water, did they not? A. They did. Q. 24. And on the edge of the water, upon the first rise of the land to the east, stood Sutter's fort, did it not? A. It did. Q. 25. Do you know the tract of land lying east of the Sacramento and south of the American, owned by Roland Gelston? A. I think I know the most of it. Q. 26. Take a north and soith line about four miles above Brighton, where there is a big tree just above the mill-dam, as Gelston's eastern line, continue that north across the American river to the parallel of the Buttes, continue on that parallel west until you strike the Feather river, then down the Feather and Sacramento rivers to the American, and thence up the American to the place of beginning, and about how many leagues of land would be contained within those lines? A. Taking the distance as forty-two miles from south to north, and eighteen from east to west, I make eighty-four square leagues. Q. 27. Supposing that the overflow of the Sacramento river on the east, north of the American, was as wide all the way up to the 368 The United States vs. Sutter. 103 Feather river, and ten miles up that river, as you saw from the mast of that vessel, say how many leagues of land east of the Sacramento would be covered with water. A. Sixteen. Q. 28. Then. doubling the quantity of overflowed land to cover errors, and deducting it from the whole quantity within the limits first mentioned, there will remain fifty-two leagues of high and dry land, north of the American river, west of the meridian of Gelston's eastern boundary, south of the latitude of the Buttes, and east of the Feather and Sacramento rivers, within which to locate Capt. Sutter's grant of eleven leagues, will there not? A. There will. Q. 29. Make the same calculation, substituting the north line of township XIV for the line of the parallel of the Buttes. A. About forty-eight leagues of dry land. Q. 30. Look at the certified copy of the map B, P. L., or Vioget map, and state if you know the point on the Sacramento river intersected by the line marked on said map 38~ 49' 32", being the southernmost parallel marked on it. A. I do. Q. 31. Extending that line eastwardly to the meridian of the most eastern portion of the dotted line above, and measuring northwardly along that meridian to the American river, down the American and Sacramento rivers to the place of beginning, about how much land would be included? A. About six and two-thirds leagues, including overflowed, tule, and all, supposing map B, P. L., to be correct as to delineation. Cross-examination.-Questions by Judge Burnett. Q. 32. Will you state if at any time during the flood of 1853 the water was over the levee in front of the city, below I street? A. Not to my knowledge. Q. 33. Was the levee at the points I have mentioned increased in height after the flood subsided, and during the year 1853? A. It was raised and widened either in 1852 or 1853; I don't recollect which. Q. 34. In speaking of the meandering red line, you used the expression "high land;" what did you mdin by it? A. I meant the land not usually overflowed by the rivers. I think from the levels we took along it, that the land had been overflowed a little outside the red line, say, from one to four feet beyond the red line, outside of it. Q. 35. Is the public square between ninth and tenth and I and J streets high land? A. I think there was a small spot there out of water when I first saw it. I did not see it for several days after the flood. Q. 36. What amount of land do you claim to own in Sacramento city under the Sutter title? A. Half of a lot, or eighty feet square. The United States vs.'Sutter.: 369 Q. 37. What is the size of the squares in Sacramento city? A. Three hundred and twenty by three hundred and forty feet, except a tier of lots between twelfth and thirteenth streets, four hundred by three hundred and forty. Q. 38. Have you not been heretofore in the habit of taking possession of town lots in Sacramento city, not having or claiming to have the Sutter title thereto? A. No, sir; at one time I purchased four lots from a man who had not the Sutter title. He was in possession, and transferred his possession to me. I afterwards sold out. They were lots 1, 2, 3 and 4, between N and O and Sixth and Seventh streets. This is the only instance in which I have had possession of city lots, not claiming under Sutter's title. Questions by attorney for Gelston. Q. 39. You say that all the land immediately between Sutter's fort and the American and Sacramento rivers is subject to overflow. Now, describe or draw from the fort to the American river a line which would divide the overflowed land from the dry land to the east, stating through what points such line would pass. A. Commencing at the fort, eastward to the New Helvetia Cemetery; thence to the north side of Oak Hill, easterly; thence to the Four-Mile House, on the American river. Q. 40. In making your estimate of the amount lying between the American and Feather, east of the Sacramento, how many miles did you allow to a league, in length? A. Three miles. 104 Direct resumed. Q. 41 In speaking about the high lands not usually overflowed, in your 34th answer, you seem to imply there have been some unusual floods, which have overflowed lands which you have designated high lands. Please explain what flood or floods you referred to, and what evidence you have as to the height the waters attained. A. I had reference to the flood of 1824, as described by Captain Richardson, published in the newspapers of San Francisco, which statement purported to be attested before a notary. It stated that al1 the land was overflowed then about Sacramento. All the land in sight was a knoll, at. Sutterville, and that would flood all the country, Sutter's fort and all. [Objected to as hearsay.] Q. 42. In the floods which you have witnessed here yourself, what effect, if ally, did you observe produced upon the frame buildings in the city? A. I had one frame building washed away in 1853, 12 x 14, one story high. Saw the Methodist meeting-house on Seventh street floated off. It was about 25 x 40. It was on Seventh street, between L and M, corner of the alley. This was in the flood of 1850. [REc. CCLVIII, D. T. 1862.]-24 370 The United States vs. Sutter. Questions by Judge Burnett. Q. 43. Which was the highest, the flood of 1850 or 1853? A. That of 1853. Q. 44. On which side of Seventh street was the church standing when washed away? A. On the east side. Examination closed. JOHN PRENTICE. Sworn to and subscribed before me this 29th day of May, A. D. 1860. JOHN B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep. of L. Hamilton, for U. S. United States district court, northern district of California. THE UNITED STATES ) vs. JOHN A. SUTTER. SACRAMENTO, May 29, 1860. On this day, before Jno. B. Williams, a commissioner of the United States for the northern district of California, duly authorized 105 to administer oaths, &c., &c., came Lorenzo Hamilton, a witness produced on behalf of the United States in case No. 319. being an appeal from the board of commissiolners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: The United States district attorney, by E. Randolph, esq.; claimant, by Judge Burnett; E. Johnson, esq., for Gelston. Questions by the United States attorney. Question Ist. State your name, age. residence, and occupation. Answer. Lorenzo Hamilton; age, 41; residence, Sacramento city, occupation, merchant. Q. 2. How long have you lived in California? A. I arrived in California in September, 1849; settled in Sacramento city, and have resided here and done business as a merchant ever since. In 1849-'50 my store was on the levee, near the corner of I street, between that and J street. Q. 3. Do you remember the overflow of 1849-'50? A. I do. Q. 4. How much of the site of the present city of Sacramento and the adjacent country was covered? The United States vs. Sutter. 371 A. The only places out of water were portions of the public square-Poverty Ridge, so called-and in and about the burying ground. Sutter's fort was not overflowed. The entire bank of the river was overflowed a portion of the time, also that of the American. The flood came from both rivers-from the American first. Q. 5. Look at Exhibit N, and state whether it represents pretty well the overflow of that season. A. I recognize it as an excellent representation. I occupied a building shown on it, near the Hotel de France, which was my place of business. I was flooded out from it. Q. 6. After the waters went down, in what condition were the streets left? A. Impassable. The navigation was by mud-scows drawn by oxen. Horses nor mule's could be used generally; there may have been points where they could have been. I had a horse, and put him into winter, quarters on top of a pile of lumber. Q. 7. State anything further descriptive of the state of the town at that time. A. There was an apprehension that the water would come over, and I went up to my store in a cart, placed pork and beef barrels on end, and platforms on those, and on these platforms placed my goods. Before I got through, the water was around my waist. I had a large quantity of pork, beef and pilot-bread in front of my store; the bread during the ensuing night and next day mostly floated off. That pilot-bread floated down to some higher ground near O street, in the direction of the burying ground. The man who saved it charged me salvage. I was boarding at the Clinton House, foot of O street, and in connection with some others built a boat, in which we floated' round for perhaps a month, and visited the higher points; also used the boat to get provisions from a store on J street. I recollect the entire bank was covered, because at the Clinton House, which was at the foot of O or N street, I let my horse stand until the water rose to his fetlocks, when I took him to the lumber before men106 tioned. I did not attempt to do any business for two or three months, except in a few instances, when the articles sold were carried off by boats. I did no business after the water subsided and left the mud. The high water was more favorable to business than the mud, until the spring opened and the roads dried. Q. 8. During the summer of 1850, was anything done to prevent the recurrence of these overflows? If so, state them. A. I don't recollect particularly about the levee business. [ recollect a levee was built by Gay and others. I don't recollect the year. My impression is, small levees were thrown up along I street in 1850. My recollection is quite indistinct, however. I recollect the common council employed Gay and others to build levees, which went down to Sutterville and beyond the fort. Levees have been built around the city at different times, and when broken have been repaired. There was a sort of a levee in 1849, from the vicinity of K and L streets out to the fort, which served as a foot path. It may have been the bank of the ditch. It was not intended 372 The United States vs. Sutter. to prevent overflows. I have sold gunny bags and hay for the purn pose of stopping gaps in the levee near Front and I streets, at the outlet of Sutter lake. I think Hardenburgh was then mayor, and he took the hay for the purpose with my implied consent. Q. 9. Do you claim any land here under the Sutter title? A. I do. I claim a lot 160 by 30, on K street, place known as Hamilton Hall, between Fourth and Fifth streets. I have at various times owned different lots in town-always under the Sutter title. The flood of'52 I don't think was as high or as general. In 1853 the flood was a repetition of that of'50. The merchants took their goods up the American river to Hoboken. I did not go, because I was doing business on the levee directly with the boats. I went up to Hoboken personally. The steamboats went round the bridge-found a channel outside. There were scows loaded and floated through the still water up the streets to the highland about the fort. Q. 10. When you first came here did you make any observation as to the extent of land within the limits of the present city covered by ponds, lagoons, sloughs and tule? A. I did not notice immediately, but about those times I noticed a little. There were tules running in back of the Orleans, and running in a southeastly direction. I recollect the wide slough in the vicinity of Eighth and Ninth streets. Standing at the high land at the cemetery, there were tules between that and Poverty ridge through which no one would attempt to go. Exhibit C seems to represent correctly the tule about the cemetery. There was a large quantity between the cemetery and Sutterville, extending up into the city. In 1853 or 1854 I bought some lots on Seventh street, north of R street-J. B. Starr, auctioneer; terms, 10 per cent., with the privilege of forfeiture. I went to see my purchase; found the lots covered with water, and threw up my purchase, forfeiting the 10 per cent. The land shown on Exhibit C, as not tule land, between Seventh and Eleventh streets, and J street south to the cemetery, was frequently overflowed. I frequently rode to the cemetery over the highest land and found it overflowed; could not walk over it without wading; this was in 1849-'50. My recollection is indistinct about the tule, except where it came under my personal observation, between Poverty ridge and the cemetery. Q. 11. Do you remember the condition of the land about Willow lake, Sutter lake, and on towards Lisle's bridge, with respect to tule? A. Yes; there were tules about Sutter lake, Willow lake, and towards Lisle's bridge. I recollect willow thickets more particularly. They cut willows there yet. The exhibit shows the willow land very correctly. Q. 12, Do you know that tules frequently grew amongst the willows and coarse grass in the wet places in the meadows? A. I do. The exhibit, north of the levee, shows the willow land The United States vs. Sutter. 373 very correctly. I now have a hundred cords of willow there, which lately I could not remove on account of the high water, and don't know that I can yet move it. Q. 13. State your recollection about the grading of the streets. A. I, J and K streets were thrown up-I can't tell the year-I suppose two or three feet. I don't remember. The cross streets were thrown up the same way. 107 Cross-examination. Q. 14. Do you recollect, where your store was during the flood of 1849-'50, that the ground was lower there than it was on the bank of the Sacramento river opposite? A. It was. Q. 15. Were you in San Francisco during the winter of 1849-50? A. I was there towards spring. Examination closed. LORENZO HAMILTON. Sworn to and subscribed before me this 29th day of May, A. D. 1860. JNO. B. WILLIAMS, U. S. Commissioner. MAY 30, 1860.-The witness desires to correct his testimony as follows: "I intended to say that there were tule growing in the slough leading from Sixth street, and on the low ground that makes in direction of Orleans Hotel, crossing M street, between Fourth and Fifth, and crossing Fourth street, between L and M. There were no tule near the Orleans Hotel. I supposed that the slough near Second street connected with the before-mentioned slough, but am mistaken-the latter run parallel with Front street. JNO. B. WILLIAMS, U. S. Commissioner. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep. of Louis Keseberg, for U. S. United States district court, northern district of California. THE UNITED STATES ) vs. JOHN A. SUTTER. SACRAMENTO, May 29, 1860. On this day, before Jnn. B. Williams, a commissioner of the United States for the northern district of California, duly authorized to administer oaths, &c., &c., came Louis Keseberg, a witness produced on behalf of the United States in case No. 319, being an appeal 108 from the board of commissioners to ascertain and settle the 374 The United States vs. Sutler. private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: E. Randolph, for U. S.; E. Gelston, for R. Gelston; Judge Burnett, for claimant. Questions by acting United States attorney. Q. 1. State your name, age, residence, and occupation. A. Louis Keseberg; age, 46; residence, Sacramento city; occupation, brewer. Q. 2. How long have you lived in Sacramento? A. Since April, 1847. I arrived in the Territory in 1846. Q. 3. When you came to the fort, what was your employment? A' I had command of Sutter's schooner, called the Sacramento, a launch of about twenty tons. Q. 4. When was the first time after your arrival you saw the Sacramento overflowed? A. In April, 1847, when I arrived, and in the last of May, or the first of June, I took charge of the launch, up the American, at the tannery, there being two much water at the embarcadero to unload. The teams could not go back and forth on account of the low places and sloughs. That was the trip when the United States soldiers were brought up from San Francisco and landed at the tanyard. There was a slough known as Sutter's slough between the tannery and the fort, which had to be crossed with a canoe, and some of the soldiers got upset. Later in the year there was a man drowned bathing. There was a deep place in the slough, north of the fort, some three or four hundred yards long. Cross-examination.- Questions by Judge Burnett. Q. 5. Are you acquainted with the present limits of Sacramento city; and if so, how far did the tules extend up towards the fort? A. I recollect tules came up from Sutterville, and followed the low land between Poverty Hill and the cemetery, up to the fort, as high as Q street, but were narrow there. Below they run wider, and were mixed with short grass called tule grass. Q. 6. Was not the grass and short tule good pasturage for cattle? A. The cattle would eat it; but if they could find better, would not. 109 Q. 7. Do you recollect if there was any flood in 1848-'9? A. There was none. Q. 8. About how wide was that patch of tule where Y street crosses? A. It reached from one end of the flat to the other; from Poverty Hill to the cemetery. I mean the tule and grass together, except a tract of about two hundred or three hundred yards wide; there was a patch of large tule, about six or seven feet high. The short tule mixed with grass was about a foot high, and rather more grass than tule. The United cStates vs. Sutter. 375 Q. 9. State how far the tules came up above R street towards J. A. There was a thick growth of timber there that a man could hardly get through. I saw no tule, except an occasional patch. Q. 10. How far did the trees extend south from J street towards the cemetery, between 7th and 11th streets? A. Pretty much to the cemetery. As far as I can recollect, from the river out to Eleventh street, and between I and Y streets. There might have been small places destitute of timber, but that was its general character. Its general character was timber, except some low land around Duck lake. Questions by attorneyfor Gelston. Q. 11. In 1847, what was reputed to be the southern boundary of Sutter's grant from Gov. Alvarado? A. As far as I heard from Captain Sutter personally, it extended about a half a mile south of Sutterville, to a large sycamore tree; from there, north to the mouth of the American river; up the south bank of the American to Leidesdorff's line. I heard this from Captain Leidesdorff, too. When Sutter was building his mill, Leidesdorff said to me in San Francisco, that I should say to Captain Sutter, that Sutter should not come within his (Leidesdorff's) line with his dam or his race. [Answer objected to, so far as it concerns Leidesdorff, as hearsay.] Q. 12. Where did Leidesdorff say was the dividing line between him and Sutter? [Objected to as hearsay.] A. He didn't say. Q. 13. Can you say how far Sutter's line extended south from the American at Leidesdorff's line? A. I don't know. Q. 14. You say Sutter's line commenced half a mile below Sutterville. How did that line run from there east? A. It ran east; how far, I don't know. Q. 15. From the point of division between Leidesdorff and Sutter, how did the line run? A. South, at right angles with the river; but how far I don't know. Q. 16. Then you mean to say that the line commencing one-half mile below Sutterville, on the Sacramento, ran east until it met or intersected the line running south from the American at the place dividing him from Leidesdorff, do you not? [Objected to as leading, by Judge Burnett.] A. It would only be a supposition on my part. I only know the three points, viz: half a mile below Sutterville, the mouth of the American, and Leidesdorff's line. The fourth corner I don't know. 110 Direct resumed. Q. 17. How many grants did you ever hear Sutter speak of? A. Of two. Q. 18. State what you heard him say about them. 376 The United States vs. Sutter. A. He had a grant of eleven leagues, called the New Helvetia grant, and one from Micheltorena, called the sobrante grant. The sobrante grant was north of the American river up to the Buttes, or about there. I never had much conversation with him about the grants. He often talked with me about the New Helvetia grant. My recollection is so imperfect about the Micheltorena grant that I am unable to state accurately about it. Q. 19. Do you know what a sobrante is? A. A surplus or secondary grant. Q. 20. Which grant was the Hock Farm on? A. On the New Helvetia grant. Q. 20a. Where is Hock Farm? A. Forty miles from the fort, north of the American, and on the right bank coming down. Questions by attorneyfor Gelston. Q. 21. On which grant was Sutter's fort? A. On New Helvetia. Q. 22. In 1847, how did you distinguish Sutter's land on Feather river fro n land on the American? A. We called this place the Embarcadero; and Hock Farm we called Hock Farm. Direct resumed. Q. 23. What grant was Marysville said to be on? A. I don't know. I couldn't run the lines between the two grants. Examination closed. The witness desires to state that he does not wish to say on which grant Hock Farm was located. L. KESEBERG. Sworn to and subscribed before me this 29th day of May, A. D. 1860. JNO. B. WILLIAMS, United States Commissioner. Endorsed: Filed June 18, 1860. W. H. CHEVERS, Clerk. Dep. of G. W. Colby, for U. S. United States district court, northern district of California. THE UNITED STATES vs. JOHN A. SUTTER. SACRAMENTO, Mcay 29, 1860. On this day, before Jno. B. Williams, a commissioner of 111 the United States for the northern district of California, duly The United States vs. Sutter. 377 authorized to administer oaths, &c., &c., came Gilbert W. Colby, a witness produced on behalf of the United States in case No. 319, being an appeal from the board of commissioners to ascertain and settle the private land claims in the State of California, in case No. 92 on the docket of the said board of commissioners, and was duly sworn and testified as follows: Present: Judge Burnett, for claimant; E. Johnson, for R. Gelston; E. Randolph, for U. S. Questions by acting United States attorney. Question 1. State your name, age, residence, and occupation. Answer. G. W. Colby; age, 34; residence, in Sacramento county; occupation, farmer. Q. 2. Do you claim any land under the Sutter title, or adverse to it? A. None whatever, either way, within the line of the official survey. I have no pecuniary interest in this matter. Q. 3. Yor teelings and sympathies are with the settlers in the controversy iNv pending, are they not? A. Theb a;re. Q. 4. 1:- i, log have you lived in Sacramento? A. Since:-, tember, 1849-in the county. Q. 5. Sr, i uiat you know about the floods, construction of levees, and the fa:i -I t.e land where the city now is, since you first knew it. A. WbVh t> t arrived here the appearance of the place where Sacrameni;:i: n;w is was that of swamp land; it was covered with thick will: -v: I:i ushes, except J street and K street, which were partially c(It-':n~ o::t so that teams could pass through. I stopped here seveir d l,i:: uring which time I traveled over the different places wlvr-, i:':b? is now located. On the south part of the city was a larc:,^ .. irnd-uc eCd meto voi opo'ct s a i Y i- nd a:.' the (a s on0 of toccta. is stl hR;a tl;"::t ptrop _~~~~~~~,.. o~~,;{.;1O?:~;..'';'.......0....~) ~: ~7 t The United States vs. Sutter. 193 to submit this plat of location, and await the final decree, before running the lines and fixing the final monuments of the survey. Very resp'y your ob't serv't, E. F. BEALE, U.. Sur. Gen'l. The Hon. OGDEN HOFFMAN, 1126 U. S. District Judge. Endorsed: Filed July 17, 1861. W. H. CHEVERS, Clerk. Notice of motion. In the district court of the United States for the northern district of Cal'a. THE UNITED STATES) v. 7No. 319. JOHN A. SUTTER. j To Wm. H. Sharp, esq., U. S. at'ty; V. E. Howard, esq., P. H. Burnett, esq., Elihu Johnson, esq., John H. McKee, esq., A. C. Whitcomb, esq., Mr. Amos Pratt, and John B. Williams: GENTLEMEN: You are hereby notified that on Saturday next, the 3rd day of August next, at 11 o'clock a. m., or as soon thereafter as counsel can be heard, we will move the court to hear objections, if any, to the plat locating the land finally confirmed to John A. Sutter in this case; which plat was filed in this court on July 17, 1127 1861, by the surveyor gen'l of the U. S. for Cal'a, as showing the location directed by this court in its order of July 1, 1861. CROCKETT & CRITTENDEN, Att'ys for Sutter. SAN FRANCISCO, July 29, 1861. NORTHERN DISTRICT OF CALIFORNIA, City and County of San Francisco, ss: Wilfred W. Wiggins, being duly sworn, says that he duly served the within notice on Amos Pratt and Elihu Johnson on the 29th day of July, 1861, by leaving at their respective offices, to a person in charge thereof, a copy of said notice; and that he on the same day deposited in the post office at San Francisco copies of said notice directed to P. H. Burnett and John H. McKee, at their respective places of residence, postage paid. WD. W. WIGGINS. Sworn to and subscribed, August 3rd, 1861, before me. 1128 W. H. CHEVERS, U. S. Corn. Endorsed: Rec'd copy within this 29 July, 1861. JOHN B. WILLIAMS, Att'y for Algier et al. V. E. HOWARD, A. C. WHITCOMB, Att'/ for Grimes..Filed C.$ August 3,1 8 61. WK CHi- EE —"^ U91 The United States vs. Sutter. Orderfor fling and hearing exceptions to plat of location. At a stated term of the district court of the United States of America for the northern district of California, held at the court-room in the city of San Francisco, on Saturday, the third day of August, in the year of our Lord one thousand eight hundred and sixty-one. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES ) v. No. 319. JOHN A. SUTTER. And now at this day, on motion of A. P. Crittenden, esq., 1129 all parties being present, it is ordered that all parties have leave, on or before the 15 day of August, inst., to file their exceptions to the official plat of the location of the land confirmed herein; and it further ordered that on Monday, the 19 day of August, inst., all parties appear and be heard in behalf or against such exceptions, if any be filed. Endorsed: Filed August 3, 1861. W. H. CHEVERS. Clerk. Objections to survey by Roland Gelston. In the district court of the United States for the northern district of California. THE UNITED STATES ) vs. -No. 319. JOHN A. SUTTER. And now comes the intervenor Roland Gelston, and objects to the survey returned in this case on the seventeenth day of July, 1130 A. D. 1861, on the ground that the same does not comply with the order of this hon. court, made July first, A. D. 1861, ordering and directing each survey in the following particulars, viz: 1st. That on the south side of the American river the eastern boundary line of said survey is not located so far east as the order of this court directs. 2nd. That the portion of the southern boundary line which extends westerly from the southern point of said eastern line about five miles is not located so far south as the order of this court directs. 3rd. That said survey, as returned, excludes about six hundred acres of land claimed by said Gelston, and for which he has intervened in this cause, and which this court directed in said order to be included in said survey. 4th. And said Gelston further objects to said survey on the ground that it does not comply with the decision of the hon. Supreme 1131 Court of the United States in this cause. ELIHU JOHNSON, Att'y for Roland Gelston. Endorsed: Filed Aug. 3rd, 1861. W. H. CHEVERS, Clerk. The United States vs. Satter. 795 Additional objections to survey by B. Gelston. In the district court of the United States for the northern district of California. THE UNITED STATES ) vs. No. 319. JOHN A. SUTTER. And now comes the intervenor Roland Gelston, and objects to the survey returned in this case on the seventeenth day of July, A. D. 1861, on the ground that the same does not comply with the order of this hon. court, made July first, A. D. 1861, ordering and directing such survey, in the following particulars viz: 1st. That on the south side of the American river the east1132 ern boundary line of said survey is not located so far east as the order of this court directs. 2nd. That that portion of the southern boundary line which extends westerly from the southern point of said eastern line about five miles is not located so far south as the order of this court directs. 3rd. That said survey, as returned, excludes about eleven hundred acres of land claimed by said Gelston, and for which he has intervened in this cause, and which this court directed in said order to be included in said survey. 4th. And said Gelston further objects to said survey on the ground that it does not comply with the decision of the Hon. Supreme Court of the United States in this cause. Wherefore, said Gelston prays that said survey be set aside, and a new one ordered in conformity with the aforesaid order 1133 of this court. ELIHU JOHNSON, Att' yfor said Gelston. Endorsed: Filed Aug. 3rd, 1861. W. H. CHEVERS, Clerk. Objections to survey by E. F. Gillespie. To the Hon. Ogden Hoffman, United States district judge, northern district of California: Your petitioner, Eugene F. Gillespie, respectfully represents, that he is one of the claimants in the case of John A. Sutter for lands confirmed to him under a decree of the United States commission, the district court of the United States, and the Supreme Court of the United States, which lands are situated in the county of Sacramento, State aforesaid. and a part of the grant of the rancho known as "Nueva Helvetia," made by the Mexican government to said Sutter in 1841. Petitioner further represents to your honor that he is in1134 jured by the late survey of the said grant by the surveyor 796 The United States vs. Sutter. general of the United States for the State of California, in this: that the petitioner holds lands under deeds of John A. Sutter, dated April first, 1851, and deed of confirmation, dated August 8th, 1853, which deeds are herewith filed, and also by virtue of certain deeds or contracts made by said Sutter to Roland Gelston, as petitioner verily believes, in the year 1849. The said lands are described as beginning at a point known as the southwest corner of Norristown tract, (being on the American river, files miles in a direct line from its mouth;) thence southwesterly to the northeast corner of a tract sold by the said Sutter to George McDougal, (which corner is about 21 miles east of the Sacramento river, and 3~ miles south of the American river;) thence in a direct line to the southwest corner of the city of Sacramento; thence to the southeast corner of the city of Sacramento; thence north to Sutter Slough; and thence northeast with said slough and the line of said Norristown tract to the place of beginning, (the said land being immediately adjoining the city 1135 of Sacramento, and lying between it and to point described in the testimony of Vioget as the " St. Clair House.") Petitioner objects to said survey or the map of said proposed survey returned by the surveyor generalFirst. Because his land is excluded, in whole or in part, while lands unconveyed by Sutter are included in said survey. Second. Because said survey does not conform either to the opinions or decree of the court. Third. Because it does not conform with the Vioget line as fixed by the decree of the Supreme Court of the United States and of this court, as well as the map and testimony of Vioget. Fourth. Because it does not conforu to the dotted line or map B, P. L., or approximate thereto. Petitioner prays to be allowed to intervene, and that his objections to said survey be filed and allowed. VOLNEY E. HOWARD, For Petitioner. 1136 EUGENE F. GILLESPIE. Sworn to and subscribed Aug. 7, 1861, before me. W. H. CHEVERS, U. S. Corn. Endorsed: Filed August 7, 1861. W. H. CHEVERS, Clerk. Confirmation of deed from Sutter to E. F. Gillespie. Know all men by these presents, that whereas John Je Fowler, of the city of Sacramento, did, as the attorney in fact of me, John A. Sutter, on the 1st of April, 1851, by deed in my name, bargain, sell, and convey unto Eugene F. Gillespie, all that certain piece or parcel of land situate, lying, and being in Sacramento county, and described as follows, to wit: commencing at a point at the southwest corner of The United States vs. Sutt(r. 797 a tract of land sold by John A. Sutter to Samuel Norris, by deed dated 13th September, 1849, and which tract of land formerly known as Norristown, running in a southwesterly direction in a direct 1137 line about 2} miles, more or less, until it intersects with the northeast corner of a tract of land sold by me to Jno. McDougal, adjoining the town of Sutterville, by deed dated Dec. 15, 1849; thence with the northeastern line of said tract to the northeastern quarter of a tract of land sold by Jno. A. Sutter, jr., to George McDougal, by deed dated 19th June, 1849; thence with the northern line of said tract to the eastern line of a tract sold by John A. Sutter to John A. Sutter, jr., by deed of 11th May, 1850; thence with the eastern line of s'd tract to its intersection with the southern line of Sacramento city; thence in an easterly direction to the southeast corner of s'd city; thence in a northerly direction with the eastern boundary of Sacramento city, to the southwest corner of a tract of land sold by John A. Sutter to R. J. Watson, by deed dated May 1st, 1850; thence with the southern line of s'd tract to the southeast corner thereof; thence with the eastern line of said tract to its intersection with the large slough which runs from the rear of Sutter's fort; and thence along s'd slough, with its meanderings on the 1138 north side, to a point at which s'd slough intersects with land sold by Roland Gelston and others to R. A. Chase, by deed dated 8th October. 1850; thence in a southerly and easterly direction to the northern line of the first-mentioned tract of Sam. Norris; thence along s'd line to the northwestern corner of s'd tract; thence along the western boundary of s'd tract south 36 and ~ east, 76 chains and 4 links, to place of beginning, together with any and all -lands lying in s'd county of Sacramento, south of' the American Fork river, east of the Sacramento river, and west of the tract of land hlereinbefore described in or to which I have. any interest by virtue of deed to me by Roland Gelston and others, of Nov. 28, 1850, in consideration of the sum of t u twelve thousand dollars; and whereas said Gillespie desires a specific ratification of said conveyance; ilnd whereas the same has been made by my authority: Now, therefore, I, the said John A. Sutter, in consideration of the premises, have and do, 1139 by these presents, ratify and confirm the s'd conveyance so made by the said John S. Fowler unto the s'd Gillespie, and all the estate and property therein conveyed forever. In witness Whlereoft I hereto set my hand and seal the eighth day of August, 1653. J. A. SUTTER. [SEAL.] Sealed and delivered in the presence of — P. L. EDWARDS. JAS. L. ENGLISH. STATE OF CALTFORNTA, ountty of Sacramento: On this 23d day of August, A. D. 1853, before me, a justice of the peace in and for the said county, personally appeared James L. Eng 798 The United States vs. Sutter. lish and Philip L. Edwards, known to me to be the persons whose names are attached to the foregoing instrument of writing as witnesses thereof, and severally made oaths before me, in due form of law administered, that John A. Sutter is personally known to them to be the person described in and who executed the said instru1140 ment, and that he, the said John A. Sutter, in their presence, sealed and delivered the said instrument and acknowledged to them that he executed the same as his act and deed, freely and voluntarily, for the uses and purposes therein expressed, on the 20 day of August aforesaid, and that they then subscribed their names thereto as witnesses thereof. In witness whereof, I hereunto set my hand the day and year first above written. B. D. FRY, Justice of the Peace. Endorsed: Filed for record Sept. 24, 1853, 91 o'c. a. m., and re. corded in book L of deeds, pages 215 and 216, records of Sacramento county. W. S. LONG, Recorder Sa. Co. By D - Deputy. Filed August 7, 1861. W. H. CHEVERS, Clerk. 1141 Deed firom Sutter to Gillespie. This indenture, made the first day of April, in the year one thousand eight hundred and fifty-one, between John A. Sutter, of Hock Farm, Sutter county, State of California, party of the first part, and Eugene F. Gillespie, of Sacramento city, and county and State aforesaid, party of"the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of twelve thousand dollars, lawful money of the United States of America, to him in hand paid by the said party of the second part at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release, convey, and confirm, ui t the said party of the second part, and to his heirs and assigns forever, all that certain piece or tract of land situate, lying, and being ill Sacramento county aforesaid, and described as follows, to wit, commencing at a point at the southwest corner of a tract of land sold by John A. Sutter to Samuel Norris, by deed dated thirteenth of 1142 September, eighteen hundred and fbrty-nine, and recorded in the office of the county recorder of Sacramento county, in book B of deeds, page forty-five and which tract of land is commonly n)\vn as Norristown, and running from thence in a southwesterly direction in a direct lii e about two and one-quarter miles T7,e United States vs. Sutter. 799 more or less, until it intersects with the northeast corner of a tract of land sold by John A. Sutter to John McDougal, adjoining the town of Sutterville, by deed dated fifteenth day of December, eighteen hundred and forty-nine, and recorded in the office of the ofce of the county recorder of Sacramento county, in book D of deeds, page 170; thence with the northeastern line of said tract to the northeast corner of a tract of land sold by John A. Sutter, junior, to George McDougal, by deed dated nineteenth of June, eighteen hundred and forty-nine, and recorded in the office of said county recorder of Sacramento county, in book A of deeds, page 118; thence with the northern line of said tract to the eastern line of a tract of 1143 land sold by John A. Sutter to John A. Sutter, junior, by deed dated eleventh May, 1850, and recorded in said county recorder's office of Sacramento county, in book C of deeds, page 224; thence with the eastern line of said tract to its intersection with the southern line of Sacramento city; thence in an easterly direction to the southeast corner of said city; thence in a northerly direction with the eastern limit or boundary of Sacramento city, to the southwest corner of a tract of land sold by John A. Sutter to Ringriver J. Walker, by deed dated May first, eighteen hundred and fifty, recorded in book D of deeds, page 115; thence with the southern line of said tract with the south side of K street, to the southeast corner of said tract; thence with the eastern line of said tract to its intersection with the large slough which runs from the west or rear of Sutter's fort; and thence along the meandering of said slough on its north side, (said slough forms the southern boundary line of land sold by John A. Sutter to Jacob Ripplun and others, by deed dated first May, eighteen hundred and fifty, and recorded in said 1144 office of county recorder of Sacramento county, in book D of deeds, page 123,) to a point where said slough intersects with land sold by Roland Gelston and others to R. A. Chase, by deed dated eighth October, eighteen hundred and fifty, and recorded in said county recorder office of Sacramento county, in book E of deeds, page 421; thence in a southerly and easterly direction to the northern line of the first referred to tract belonging to Samuel Norris; thence along said line to the northwestern corner of said tract; and thence along the western boundary of said tract south, 361 east, 76 chains 40 links, to the place of beginning. Also any and all lands lying in said county of Sacramento, south of the American Fork river, east of the Sacramento river, and west of the tract of land hereinbefore described and conveyance, together with all the privileges and immunities belonging thereto, as conveyed to the party of the first part by Roland Gelston and others, by deed dated eighth day of November, 1850, and recorded in book F of deeds, in said county 1145 recorder's office of Sacramento county, on pages 345 and 346. Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, in 800 The United States vs. Sutter. terest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof; with the appurtenances. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. And the said John A. Sutter, for himself and his heirs, the said premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said party of the first part, his heirs, and against all and every person and persons whatsoever, lawfully claiming or to claim the same, shall and will 1146 warrant and by these presents forever defend. In witness whereof, the said party of the first part hath hereunto set his hand and seal the day and year first above written. JOHN A. SUTTER. [SEAL.] By his att'y in fact, JOHN S. FOWLER. Sealed and delivered in the presence of-(the words " with the," on line 45, erased, and word "before," on line 48, inserted before signature: also word "and," on line 34, erased, and word "to," on line 34, inserted before signature.) A. C. MONSON. M. S. LATHAM. STATE OF CALIFORNIA, Sacramento County: On this the 1st day of April, A. D. 1851, before me, a notary public in and for the county aforesaid, personally appeared John S. Fowler, the att'y in fact of John A. Sutter, known to me to 1147 be the person described in and who executed the foregoing instrument, who acknowledged that he executed the same freely and voluntarily, and for the uses and purposes therein named. [SEAL] Witness my hand and notarial seal the day and date above written. M. S. LiTHAM, N. P. Endorsed: Filed April 2, 1851, at 12 o'c. n., and recorded in book F of deeds, pages 509, 510, 511, and 512, records Sact'o Co., Cal' a. L. A. BIRDSALL, Recorder. Filed Aug. 7, 1861. W. H. CHEVERS, Clerk. Exceptions of U. S. to plat of location. I i- the district court of the United States for the northern district of California. THE UNITED STATES v No. 319. JOHN A. SUTTER. J And now come the United States, by Wm. II. Sharp, esq., 1148 their attorney, and except to the plat of the location of the The United States vs. Sutter. 801 land confirmed herein, made by the surveyor general of the United States for California, under and in pursuance of the order of this court entered July 1, 1861, which said plat was filed by said surveyor general on the 17th July, 1861. And the United States aver-lst. That said plat of location shows the dotted line of map B, P. L., and the nearest subdivision lines thereto; and the United States ask that in the final decree to be entered the said dotted line may be adopted instead of the subdivision lines, the former being more in conformity with the spirit of the opinion of this court and with the true intent and meaning of the order of July 1st, 1861; but this averment is not intended by the United States as an admission that either line is correct. 2nd. That by the official survey rejected by this court Sutter lake was excluded; but that by the said plat of location filed July 1149 17, 1861, said lake appears to be included, and the United States ask that said lake, when the final decree is entered, be excluded in terms. 3rd. That, in the fifth exception of the United States to the survey rejected by this court, the*court was asked to include in the new survey a certain tract of land deeded by John A. Sutter to James Sevige, January 1, 1850; said tract being of one mile square, and lying on the east side of the Feather river, immediately north and adjoining one of the two tracts marked "No. 6" on said plat of location, filed July 17, 1861. That, as appears by the annexed affidavit of C. Cole, the deed conveying said tract was not put in evidence. Thlt the said original deed is now ready to be produced and proved; and(the United States ask that the same be filed, and that proof may be taken if the said deed be objected to; and that the tract therein described be located on said plat by the surveyor general aforesaid, and confirmed by final decree. Wherefore, the U. S., by their said attorney, pray that the said plat of location be modified in accordance with the foregoing alle1150 gations. WM. II. SHARP, U. S. Attorney. In the district court of the United States for the northern district of California. THE UNITED STATES ) V. sNo. 319. JOHN A. SUTTER. NORTHEN DISTRICT OF CALIFORNIA, 88 C. Cole, of the city of Sacramento, in said district, being duly sworn, says: That he represents a half interest in the land described in a deed made by John A. Sutter to James Sevige, dated January 1st, 1850; that C. Wadhams, of the city of San Francisco, represents the other half interest in the same land; that affiant and the said Wadhams, together, claim under mesne conveyances the whole of said tract; [REC. CCLvIT, D. T. 1862.]-51. 802 The United States vs. Sutler. that when the survey of the land confirmed in this case was first ordered into court, affiant brought his claim to the notice of the 1151 then district attorney for this district, who, in his exceptions to the survey claimed that said tract should be included; that afterwards,in the proceedings under the law of June 14, 1860, affiant supposed he was protected under the intervention of N. Algier and others; that said deed was not filed in the cause because affiant was informed that it was unnecessary, as the tract was covered by the description in the power of attorney from Sutter to F. Emory, duly filed and proved; that at the time the argument was made in this case before the court, this affiant made an argument in behalf of himself and others holding under said deed, and was not aware of any informality in the proceedings until the plat of the location made under the order of the court directing a new survey was returned, showing the tract conveyed by said deed as not included. C. COLE. Subscribed to and sworn before me this 10 August, 1861. W. H. CHEVERS, U. S. Com. Endorsed: Filed Aug. 12, 1861. W. H. CHEVERS, Clerk. 1152 Petition and exceptions to survey of July 17, 1861, by Samuel Brannan. In the district court of the United States for the northern district of California. THE UNITED STATES s. No. 319. JOHN A. SUTTER. ) To the honorable Ogden Hoffman, jr., judge of the said court. Your petitioner, Samuel Brannan, respectfully represents that he is one of the claimants for lands confirmed to said John A. Sutter under the decree of the late board of United States land commissioners, and by the decree of this honorable court in the above-entitled case, and of the Supreme Court of the United States, which land so claimed by your petitioner is situated in the county of Sutter, in the State and district aforesaid, and is part of the grant of the rancho known as "Nueva Helvetia," made by the Mexican government to said John A. Sutter in the year 1841. Your petitioner further represents to your honor that the 1153 land claimed by him as aforesaid was, on the eleventh day of May, A. D. 1849, conveyed to him by John A. Sutter, jr., who claimed to the thereto, and to whom the same had been conveyed prior to said eleventh day of May, A. ). 1849, by the said John A. Sutter, first named, and is bounded and described as follows, viz: Two miles square of land on the west side of Feather river, starting one mile south of the Rancheria Olush, and running two miles north The United States vs. Sutter. 803 along the west bank of Feather river; from thence two miles west; from thence two miles south; and from thence two miles east to the point of starting, as will more fully appear by the certified copy of said deed from John A. Sutter, jr., to your petitioner, filed in said case on the 4th day of April, A. D. 1860, and by the original of said deed herewith filed, and a map of the said land herewith filed, the said deed being marked Exhibit A, and the said map Exhibit B, and made a part of this petition. Your petitioner further represents that he has been injured by the survey of the said lands conferred to said John A. Sut1154 ter as aforesaid, a plat of which was filed in this court on the 17th day of July, A. D. 1861, in this: that the land so claimed and owned by your petitioner has not been located upon, and his land excluded from the said survey, whilst lands conveyed by said Sutter to divers persons since the said conveyance to your petitioner, and also lands which have never been conveyed by said John A. Sutter, have been embraced by the said survey. And your petitioner hereby objects and excepts to the said survey because the land conveyed to him, as aforesaid, has not been located upon the said survey, and because the same has been excluded therefrom. And he further objects and excepts to said survey because lands which have been conveyed by said Sutter since the said conveyance to your petitioner, and lands which have never been conveyed by said Sutter, have been embraced by said survey and located thereon to the exclusion of your petitioner's land above described. And he further objects and excepts to said survey because 1155 the same does not conform to the decree of this court directing the survey of said lands confirmed as aforesaid, and under which the same purports to have been made, and because the said survey does not conform to the opinion of this court under which the said decree was made, and is contrary to the said opinion and decree. And he further objects and excepts to the said survey because the same does not conform to the Vioget line as fixed by the decree of the Supreme Court of the United States and of this court, and because the same is not the conformity to the map or testimony of Vioget. And he further objects and excepts to the said survey because it does not conform to the dotted B, P. L., or approximate thereto. Your petitioner prays that he may be allowed to intervene in said case and in the proceedings and in the proceedings that may be had or taken upon said survey, and that his objections and exceptions hereinbefore stated be allowed. 1156 F. A. SAWYER and L. ALDRICH. Atty'' sfor Petitioner. Endorsed: Filed Aug. 13th, 1861. W. H. CHEVERS, Clerk. 804 The United States vs. Sutter. Exhibit A to petition and exceptions to survey of Samc' Branlan, This indenture, made and entered into this eleventh day of May, in the year of our Lord eighteen hundred and forty-nine, by and between John A. Sutter, jr., of Sacramento city, Territory of California, of the first part, and Samuel Brannan, of the town of San Francisco, Territory of California, of the second part, witnesseth: That the said John A. Sutter, jr.,for and in consideration of the sum of two thousand dollars, to him in hand paid by the said Samuel Brannan, (the receipt whereof is hereby acknowledged,) hath bargained and sold, and by these presents doth bargain and sell, unto the said Samuel Brannan, his heirs and assigns forever, cer1157 tain real estate situated, lying, and being in the district of Sacramento, Territory of California, and known and described as follows, to wit: Two (2) miles square of land on the west side of Feather river, starting one mile south of the Rancho Olush, and running two miles north along the west bank of Feather river; from thence two miles west; from thence two miles south; and from thence two miles east, to the point of starting; said land to be located, marked, and surveyed by and for the said,Samuel Brannan, agreeable to his pleasure: to have and to hold the above said premises, with atll the appurtenances, rights and privileges unto him, the said Samuel Brannan, his heirs and assigns forever; and the said John A. Sutter, jr., for himself, his heirs, executors, and administrators, doth further covenant to and with the said Samuel Brannan, his heirs, executors, administrators and assigns, that the title to the foregoing preoises he will forever warrant and defend against the claim or claims of all aind every person or persons whoever. In witness whereof, the said John A. Sutter, jr., has 1158 hereunto subscribed his name and affixed his seal the day and year aforesaid. JOHN A. SUTTER, JR, [SEAL.] Signed, sealed, and delivered in presence of us —JEREMIAH SHERWOOD. W. I). M. HOWARD. TERRITORY OF CALIFORNIA, City and District of Sacramento, ss: Be it known that on this eleventh day of May, A. D. 1849, before rme came John A. Sutter, jr., known to me to be the person whose lame appears signed to the foregoing deed as having executed the same, who acknowledged his said signature to be genuine, and the said instrument to be his free act and deed, for the purposes therein mentioned. Before MR. FRANK BATES, 1 llcalde, Sac. District. STATE OF CALIFORNIA, Sacramento County, ss: On this 12th day of June, A. D. 1850, personally appeared 1159 before me, Lewis A. Birdsall, recorder in and for the The United States vs. Sutter. 805 county aforesaid, John A. Sutter, jr., to me known to be the person who executed the foregoing instrument of writing, and who acknowledged that he executed the same freely and voluntarily, for the uses and purposes therein set forth. Given under my hand and seal the day and year last above written. [SEAL.] L. A. BIRDSALL, Recorder. Endorsed as follows Received for record May 14th, 1849, at 2 o'clock p. m., and recorded in liber A of deeds, pages 46 and 47. HENRY A. SCHOOLCRAFT, Recorder of Deeds for Sacramento City, California. Filed for record May 30th, 1850, at 10O- o c. a. m,, and duly recorded in book C of deeds, page 307. LEWIS A. BIRDSALL, Recorder, Sac' to Co., Cal. Pr. TH. J. ABY, Deputy. 1160 Came into office for record, July 5th, A. D. 1850, 2.32 o'clock p. m., and duly recorded in book A, fol. 62 and 63. G. LAWRENCE, Dep' y Recorder for Sutter County. Filed Aug. 13th, 1861. W. H. CHEVERS, Clerk. 1161 Petition of W. B. Garrison and objectionsto survey, fled July 17, 1861. In the district court of the United States for the northern district of California. THE UNITED STATES ) vs. No. 319. JOHN A. SUTTER. ) To the I1on. Hgden Hoffman, jr., judge of the said court: Your petitioner, William R. Garrison, respectfully represents that he is one of the claimants for lands confirmed to said John A. Sutter under the decree of the late board of United States land commissioners, and by the decree of this honorable court in the above entitled case, and by the decree'of the Supreme Court of the United States in said case, which lands so claimed by your petitioner are situated in the county of Yuba, and are part of the grant of the rancho known as "Nueva Helvetia," made by the Mexican government to said John A. Sutter in the year 1841. Your petitioner further represents to your honor that the land claimed by him was, on the third day of April, A. D. 1850, 1162 duly conveyed by the said John A. Sutter to H. H. Hackney 806 The United States vs. Sutter. and G. W. McCullough, and has passed by divers mesne conveyances to your petitioner, who is now the owner of the same, and is bounded and described as follows, viz: That piece or parcel of land lying and being in the county of Yuba, in the State of California, beginning at a point on the east bank of Feather river, which point is or was marked by a twelve-inch oak tree, bearing N. 86~ W., distant ten feet, and a twenty-four-inch sycamore tree, bearing No. 70~ E., distant forty-nine feet, and about one mile below the town of Plumas; running thence down Feather river to the mouth of Bear creek; thence up Bear creek to a point which shall be upon a direct magnetic meridian east of the point of beginning; and thence west (magnetic) to the place of beginning, on Feather river, containing eighteen hundred and twenty-two and three-fourths acres, more or less; all of which will more fully appear by the deeds herewith filed, and by testimony and papers which your petitioner is ready to produce. Your petitioner further represents that he has been injured 1163 by the survey of the said lands confirmed to said Sutter, as aforesaid, made by the surveyor general of the United States, and a plat of which was filed in this court on the 17th day of July, A. D. 1861, in this: that the land so claimed and owned by him has not been located on, and have been excluded from, said survey, whilst, as he is informed and believes, and so represents, lands conveyed by said Sutter to divers persons since the said conveyance to Hackney and McCullough, and also lands which never been conveyed by said Sutter, have been embraced by the said survey. And your petitioner hereby objects and excepts to the said surveyFirst. Because the land conveyed to him as aforesaid has been excluded from said survey, and because the said land conveyed to him has not been located on said survey. Second. Because the land claimed by him as aforesaid has been excluded from said survey, whilst, as he is informed and believes, and so represents, lands which were conveyed by said Sutter to 1164 divers persons since the said 3rd day of April, A. D. 1850, and lands which have never been conveyed by said Sutter have been embraced by the said survey, and because your petitioner has been injured thereby. Third. Because the said survey does not conform to the decree of this court directing the survey of the said lands confirmed to said Sutter, and under which the same purport to have been made, and because the said survey does not conform to the opinion of the court under which the said decree was made, but is contrary to the said opinion and decree. Fourth. Because the said survey does not conform to the Vioget line as fixed by the decree of the Supreme Court of the United States and of this court, and because the said survey is not in accordance with the map or testimony of Vioget. Fifth. Because the said survey does not conform to the dotted line, B, P. L., or approximate thereto. 1165 Your petitioner, therefore, prays that he may be allowed to intervene in said case, and in the proceedings which may be The United States vs. Sutter. 807 had or taken upon said survey, and that he be permitted to object and except to the said survey, and that his objections and exceptions hereinbefore stated be allowed. F. A. SAWYER and S. ALDRICH, Att' ys for Petitioner. Endorsed: Filed Aug. 13th, 1861. W.. H. CHEVERS, Clerk. Garrison Exhibit No. 7.-Deed from John Sharp aind wife to J. C. Haswell. Know all men by these presents that we, John Sharp and Catherine Sharp, his wife, of the county of Yuba, State of California, in consideration of the sum of ten thousand dollars, paid by J. C. Haswell, of the county of San Francisco and State aforesaid, the receipt whereof is hereby acknowledged, do hereby remise, release, and forever quitclaim unto the said J. C. Haswell, and to his heirs and assigns, 1166 the undivided half of that certain tract or parcel of land in the said county of Yuba, and bounded as follows, to wit: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing N. 860 W., distant ten feet, and one twenty-four-inch sycamore tree, bearing No. 70~ E., distant forty-nine feet, and about one mile below the town of Plumas; running thence down Feather river to the mouth of "Bear creek:" thence up "Bear creek," which shall bear a direct magnetic meridian of the point of beginning; and thence west (magnetic) to the place of beginning, in Feather river, containing eighteen hundred and twenty-two and X acres, more or less. To have and to hold the above released premises, with all the privileges and appurtenances thereto belonging, to the said J. C. Haswell, to his heirs and assigns, to his and their use and behoof forever. And we, the said John Sharp and Catherine Sharp, for ourselves and our heirs, executors and administrators, do covenant 1167 with the said J. C. Haswell, his heirs and assigns, that the premises are free from all incumbrances made or suffered by us, and that we will, and our heirs, executors, and administrators shall, warrant and defend the same to the said J. C. Haswell, his heirs and assigns forever, against the lawful claims and demands of all persons claiming by, through, or under us, but against none other. In witness whereof, we, the said John Sharp and Catherine Sharp, his wife, have hereunto set our hands and seals this 9th day of January, in the year of our Lord eighteen hundred and fifty-five. JOHN SHARP. [SEAL.] CATHARINE SHARP. [SEAL.] Signed, sealed, and delivered in presence ofWM. K. SHERWOOD, for Catharine Sharp. 808 The United States vs. Sutter. STATE OF CALIFORNIA, County of Sacramento, ss: On this 9th day of Jan'y, 1855, personally appeared before me, a notary public in and for said county, John Sharp, proven before me to be the person described in and who executed the foregoing 1168 instrument of writing by the testimony of John C. Haswell, a competent and credible witness by me duly sworn for that purpose. And the said John Sharp acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein expressed. [SEAL.] Given under my hand and notarial seal the day and year above written. JAMES C. ZAHESKIE, Not. Pub., Sac. Co. STATE OF CALIFORNIA, County of Yuba, ss: On this seventh day of February, A. D., 1855, personally appeared before me, a notary public in and for said county, Catherine Sharp, known to me to be the person described in and who executed the within conveyance, and acknowledged to me, having been first byme made acquainted with the contents of such conveyance on an examination by me had apart from and without the hearing of her 1169 husband, that she executed the same freely and voluntarily, without fear or compulsion, or under influence of her husband, and that she does not wish to retract the execution of the same. SE L] Witness my hand and notarial seal the day and year above [S L'] written. WM. K. SHERWOOD, Notary Public, Yuba Co., Cal. STATE OF CALIFORNIA, County of Yuba, ss: On this second day of March, one thousand, eight hundred and fifty-five, before me, S. C. Tompkins, a notary public in and for Yuba county, personally appeared John Sharp, known to me to be the person described in and who executed the annexed conveyance, and acknowledged to me that he executed the same freely and voluntarily, for the uses and purposes therein mentioned. rSEL.1 In witness whereof, I have hereunto set my hand and offi[SEAL.] cial seal the day and year above written. 1170 S. C. TOMPKINS, Notary Public, Yuba County. Endorsed: Rec'd for record March 2d, A. D., 1855, at 3 o'clock p. m., at request of grantee. Recorded March 5, 1855, at 10 a. m., in deed book No. 9, page 171. S. C. Tompkins, rec., by M. M. Burke, deputy recorder, Yuba co. Filed Aug. 13th, 1861. W. H. Chevers, clerk. The United States vs. Sutter. 809 Certifcate of tax sale from C. N. Felton, tax col'r, to Lloyd Tevis. No. 79.-Certificate of sale for taxes. STATE OF CALIFORNIA, County of Yuba, ss: I, C. N. Felton, tax collector of the county of Yuba, do hereby certify that, by virtue of an act of the legislature of the State 1171 of California, entitled "An act to provide revenue for the government of the State," passed May 15, 1854, and the several acts amendatory thereof, and by virtue of an act entitled "An.act to provide revenue for the support of the government of the State," passed April 29, 1857, a tax was imposed upon certain property situated within the limits of said county, and described on the tax list or assessment roll of said county as follows: All that certain piece or parcel of land known as the McCulloughs ranch, situated on "Bear river," containing eighteen hundred and twenty-three acres of land, with improvements, which property was assessed to J. C. Haswell for $24,501. And that, on the third Monday of October, A. D. 1857, the tax being unpaid, I on that day, at the close of my official business on that day, did enter upon the tax list or assessment roll a statement that I had made a levy upon all the property assessed on said roll, and upon which the taxes had not been paid, (in which description 1172 was included that above described,) and did thereafter charge each and every person so delinquent an addition of five per cent. upon the amount of all taxes to be paid by such person. And that, on the Saturday next preceeding the third Monday in November, in the same year, I had completed a list of persons and property then owing any taxes, and called the delinquent list, and on and before the fourth Monday in November of the same year I caused said list to be published, giving in said publication the name of the owner (when known) of all the real estate and of all the improvements, together with such a condensed description of the property that it might easily be known, and also a similar condensed description of any real estate or improvements assessed to unknown owners, and also the name of every party delinquent for any tax on personal property, and also opposite each name or description giving the amount of taxes, including the cost provided by law due from each delinquent person or property, which publication was made 1173 by one insertion, one time per week, for three successive weeks, in California Express, a paper published in said county, and that it was my intention to sell all of said property for the taxes so unpaid, designating the time and place of commencing said sale to be in front of the county court-house, on the twenty-second day of December, A. D. 1857. On which day I did, between the hours of ten o'clock a. m. and three p. m., offer said property at public auction, in fiont of the county court-house, and did commence to sell the real estate and improvements: -avertised, and upon which the taxes and costs had not 810 The United States vs. Sutter. been paid, commencing at the head of the list and continuing it alphabetically through, and completing such sale within two weeks from said day first fixed as the day of sale; and (the owner in possession, and the possessor of the property above described, failing to designate) I did thereupon designate the portion of the property I wished bid on, including that hereinafter described, and at such sale Lloyd Tevis was the person who would take the least quantity or 1174 smallest part of the land or interest assessed, (being that which is hereinafter described,) and pay the taxes and cost due, including two dollars which I was entitled to receive for the duplicate certificate of sale, which taxes and costs were five hundred and sixtyeight dollars and forty-five cents; that said smallest quantity, as described, was struck off to him, and he was declared purchaser, and paid to me the taxes and cost thereon, before 10 o'clock a. m. the following day, and therefore he became purchaser of the said property, that is to say, all that property heretofore described. And therefore I sign and give to him this certificate, in duplicate, having first entered in a book kept by me for that purpose a description of the land sold corresponding exactly with the description of it given in this certificate, the date of the sale, the purchaser's name, and the total amount of purchase-money paid, and numbering the said description on the margin of the book, and putting a corresponding number on this certificate, to the end that if said 1175 certificate shall have been filed with the county recorder of said county, and six months shall have elapsed since said sale and purchase, and no redemption from such sale shall have been made, by payment having been made to him or assigns, or to the county treasurer, to his use of said purchase-money, and fifty per cent. in addition thereto, then that he shall be entitled to receive from me a conveyance of the said land sold according to the statute in such case made and provided. In witness whereof, I, the tax collector, have hereunto set my hand, in the county aforesaid, the day and year first above written. C. N. FELTON, Col. [SEAL.] Witness: T. W. JERMN. Endorsed: Filed Aug. 13th, 1861. W. H. CHEVERS, Clerk. 1176 1177 Garrison Exhibit No. 8.-Deed from Jno. C. Haswell and wife to Lloyd Tevis. This indenture, made the twenty-ninth day of April, in the year one thousand eight hundred and fifty-eight, between John C. Haswell and Mary Haswell, his wife, of the first part, and Lloyd Tevis, of the second part, witnesseth: That the said parties of the first part, in consideration of the sum of fourteen thousand dollars to them duly paid before the delivery hereof, hath bargained and sold, and by these The United States vs. Sutter. 811 presents doth grant and convey to the said party of the second part, his heirs and assigns forever, all that certain piece or parcel of land lying and being in the county of Yuba, State of California, bounded as follows, to wit: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing N. 86~ W., distant ten feet, and one twenty-four-inch sycamore tree, bearing N. 70~ E., distant forty-nine feet, and about one mile below the town of Plumas; running thence down Feather river to the mouth of " Bear creek "; thence up Bear creek to a point which shall be upon a direct magnetic meridian east of the point of beginning; and 1178 thence west (magnetic) to the place of beginning, on Feather river, containing eighteen hundred and twenty-two and threefourths acres, more or less, with the appurtenances, and all the estate, title, and interest of the said parties of the first part therein. And the said parties of the first part do hereby covenant and agree with the said party of the second part, that at the time of the delivery hereof the said parties of the first part are the lawful owners of the premises above granted, and seized thereof in fee-simple absolute, and that they will warrant and defend the above granted premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever. In witness whereof, the said parties of the first have hereunto set their hands and seals the day and year first above written. J. C. HASWELL. [SEAL.] MARY HASWELL. [sEAL.] Sealed and delivered in the presence ofS. C. TOMPKINS. STATE OF CALIFORNIA, County of Yuba, ss: 1179 On the twenty-ninth day of April, A. D. one thousand eight hundred and fifty-eight, before me, a notary public in and for said county, personally appeared J. C. Haswell and Mary Haswell, his wife, to me known to be the same persons described in and who executed the annexed instrument of writing, and severally acknowledged that they each executed the same freely and voluntarily, for the uses and purposes therein mentioned. And the said Mary Haswell, (wife of the said J. C. Haswell,) personally known to me to be the same person described in and who executed, and whose name is subscribed to the annexed instrument of writing as a party thereto, having been by me first made acquainted with the contents thereof, acknowledged, on an examination separate and apart from and without the hearing of her husband; that she executed the same freely and voluntarily without fear or compulsion, or under influence of her husband, and that she does not wish to retract the execution of the same. 1180 In witness whereof, I have hereto set my name and affixed my notarial seal the day and year in this certificate first [SEL.] above written. S. C. TOMPKINS, Notary Public for Yuba County, Cal. 812 The United States vs. Sutter. Endorsed: Received for record May 12, 1858, at 10 o'clock a. m., at the request of the grantee, and recorded May 13, 1858, at 9 a. m., in book 12 of deeds, on page 388. W. H. WICKERSHAM, Recorder, By R. R. WICKERSHAM, Deputy. Filed Aug. 13th, 1861. W. H. CHEVERS, Clerk. Garrison Exhibit No. 5. Deed from Wim. B. Thornburgh, sheriff, &c., to Lloyd Tevis. Indenture made and executed this the twenty-second day of December, A. D. one thousand eight hundred and fifty-seven, between Wm. B. Thornburgh, sheriff of the county of Yuba, in the State of California, party of the first part, and Lloyd Tevis, party of the second part. Whereas, in and by virtue of a judgment and decree 1181 issued out of the district court of the tenth judicial district in and for the county of Yuba, under the seal thereof, dated on the sixth day of November, A. D. 1857, the said judgment and decree was entered in said court on the twenty-first day of November, A. D. 1856, in an action in said court, wherein Hiram H. Hackney was plaintiffs and Isaac Roop, administrator of the estate of Josiah Roop, deceased, William Moulton, and John C. Haswell, were defendants, whereby the said party of the first part was commanded to sell the property hereinafter described, and all the right, title, and interest which the defendant, Josiah Roop, possessed in and to the same on the ninth day of January, A. D. one thousand eight hundred and fifty-one, or possessed at any time since, at auction, according to law, and to apply the proceeds of such sale towards the payment of different sums in said judgment specified, reference being thereunto had more fully appears; and whereas, in pursuance of said judgment and decree, the said party of the first part did, on the thirtieth day of November, A. D. 1857, between the hours of 1182 ten and twelve in the forenoon of that day, in front of the court-house in the city of Marysville, in the county of Yuba, State of California, sell the premises hereinafter described, and all the right, title, and interest which the said Josiah Roop possessed in and to the same on the 9th day of January, A. D. 1851, or had possessed at any time since, at public auction, according to law, to Lloyd Tevis, the party of the second part to this conveyance, who was the highest bidder therefor, for the sum of five hundred dollars, which was the whole price paid by him for the same, after due notice of the sale by publication of the said time and place thereof, and of the description of said property hereinafter set forth, once in each week for twenty-one days, in the "Daily Inquirer," a newspaper published in said county, and posting copies of such notice and description daily, for the same period, in three public places of the said county of Yuba, State aforesaid: Now, therefore, this indenture witnesseth, that the said party of the first part, sheriff of the 1183 said county of Yuba, in pursuance of the said judgment and The United States vs. Sutter. 813 decree, and of the statute in such case made and provided, and for and in consideration of the payment to him of the said sum of five hundred dollars, so bid as aforesaid, the receipt of which is hereby acknowledged, hath granted, bargained, sold, conveyed, and confirmed, and by these presents doth grant, bargain, sell, convey, and confirm, unto the said Lloyd Tevis, party of the second part, his heirs and assigns, the premises in said judgment and decree described as follows, to wit: the undivided fourth of that certain tract of land situated in Yuba county, State of California, and which is bounded and described as follows, viz: beginning at a point on the east bank of Feather river, which point is marked by one twelveinch oak tree, bearing north eighty-six degrees west, distant ten feet, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distant forty-nine feet, one mile below Plumas; thence down to the mouth of Bear creek; thence up Bear creek to 1184 a point which shall be on a direct magnetic meridian east of the point of beginning; thence west (magnetic) to said point of beginning, on Feather river, containing eighteen hundred and twenty-two and three-fourths acres, more or less; and all the right, title, and interest which the said Josiah Roop, deceased, possessed on the ninth day of January, A. D. one thousand eight hundred and fifty-one, or which he had possessed at any time since: to have and to hold the above-described premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns forever, as fully and absolutely as the said party of the first part can or ought to by virtue of the said judgment and decree and the law relating thereto. In witness whereof, the said William B. Thornburgh, sheriff of Yuba county, party of the first part, as sheriff as aforesaid, has hereunto set his hand and affixed his seal the day and year first above written. W. B. THORNBURGH, Sleriff of Yuba County, California. [SEAL] 1185 Signed, sealed, and delivered in the presence ofS. C. TOMPKINS. STATE OF CALIFORNIA, County of Yuba, ss: On this twenty-eighth day of December, one thousand eight hundred and fifty-seven, before me, S. C. Tompkins, a notary public in and for said county, personally appeared William B. Thornburgh, esq., known to me to be the sheriff of Yuba county, and also known to me to be the individual described in and who executed the foregoing conveyance, and acknowledged to me that he executed the same as such sheriff aforesaid freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and no[SEAL.] tarial seal the day and year first above written. S. C. TOMPKINS, Notary Public, Yuba County, California. 814 The United States vs. Sutter. Endorsed: Received for record December 29, 1857, at 2 1186 o'clock p. m., at the request of the grantee, and recorded January 3rd, 1858, at 10~ a. m., in book 12 of deeds, on pages 219 and 220. D. C. Benham, recorder, by R. R. Hockersham, deputy. Filed Aug. 13th, 1861. W. H. Chevers, clerk. Garrison Exhibit No. 6.-Deedfrom Wmn. B. Thornburgh, sheriff to Lloyd Tevis. Indenture made and executed this the twenty-second day of December, A. D. one thousand eight hundred and fifty-seven, between William B. Thornburgh, sheriff of Yuba county, in the State of California, party of the first part, and Lloyd Tevis, of San Francisco county, party of the second part. Whereas, in and by virtue of a judgment and decree issued out of said district court of the tenth judicial district of the State of California in and for the county of Yuba, entered therein on the twenty-sixth day of January, A. D. 1857, duly attested on the sixth day of November, A. D. 1857, 1187 in a certain in said court, wherein Hiram H. Hackney was plaintiff, and G. W. McCullough, William Moulton, and John C. Haswell were defendants, whereby the said party of the first part was commanded to sell the property hereinafter described, and all the right, title, and interest which the defendant, G. W. McCullough, possessed in and to the same on the ninth day of January, A. D. one thousand eight hundred and fifty-seven, or which he had possessed at any time since, at auction, according to law, and to apply the proceeds of such sale towards the payment of different sums in said judgment specified, reference being thereunto had more fully appears; and whereas, in pursuance of said judgment and decree, the said party of the first part did, on the thirtieth day of November, A. D. 1857, between the hours of ten and twelve in the forenoon of that day, in front of the court-house, in the city of Marysville, county of Yuba, in the State of California, sell the premises hereinafter described, and all the right, title, and interest which the said G. 1188 W. McCullough possessed in and to the same on the 9th day of January, A. D. 1851, or had possessed at any time since, at public auction, according to law, to Lloyd Tevis, the party of the second part to this conveyance, who was the highest bidder therefor, for the sum of five hundred dollars, which was the whole price paid by him for the same, after due notice of the sale by publication of the said time and place thereof, and of the description of said property hereinafter set forth, once in each week for twenty-one days, in the "Daily Inquirer," a newspaper published in said county, and posting copies of such notice and description daily for the same period in three public places of the said county of Yuba: Now, therefore, this indenture witnesseth, that the said party of the first part, sheriff of the said county of Yuba, in pursuance of the said judgment and decree, and of the state in such case made and provided, and for and in consideration of the payment to him of the said sum of five hundred dollars, so bid as aforesaid, the receipt of which The United States vs. Sutter. 815 is hereby acknowledged, hath granted, bargained, sold, con1189 veyed, and confirmed, and by these presents doth grant, bargain, sell, convey, and confirm, unto the said Lloyd Tevis, party of the second part to this conveyance, his heirs and assigns, the premises in said judgment and decree described as follows, to wit: one undivided fourth of that certain tract or parcel of land situated in Yuba county, California, and bounded and described as follows, to wit: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eightysix degrees west, distant ten feet, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distant forty-nine feet, one mile below Plumas; and running thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be on a direct magnetic meridian, east of the point of beginning; thence west (magnetic) to said point of beginning, on Feather river, containing eighteen hundred and twenty-two and three-fourths acres, more or less; and all the right, title, and interest which the said G. W. McCullough possessed in and to the same on the 9th day of Janu1190 uary, A. D. one thousand eight hundred and fifty-one, or which he had possessed at any time since: to have and to hold the above-described premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns forever. as fully and absolutely as the said party of the first part can or ought to by virtue of the said judgment and decree and the law relating thereto. In witness whereof, the said William B. Thornburgh, sheriff of Yuba county, party of the first part, as sheriff as aforesaid, has hereunto set his hand and affixed his seal the day and year first above written. WILLIAM B. THORNBURGH, [SEAL.] Sheriff of Yuba County. Signed, sealed, and delivered in presence ofS. C. TOMPKINS. STATE OF CALIFORNIA, County of Yuba, ss. 1191 On this twenty-eighth day of December, one thousand eight hundred and fifty-seven, before me, S. C. Tompkins, a notary public in and for Yuba county, personally appeared William B. Thornburgh, esq., known to me to be the sheriff of Yuba county, and also known to me to be the individual described in and who executed the foregoing conveyance, and acknowledged to me that he executed the same as such sheriff aforesaid freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and notarial [SEAL.] seal the day and year first above written. ~S^E~A~L.] S. C. TOMPKINS, Notary Public, Yuba County, California. 816 The United States vs. Sutter. Endorsed: Received for record December 29, 1857, at 2 o'clock p. m., at the request of the grantee, and recorded January 3rd, 1858, in book 12 of deeds, pages 221 and 222. D. C. BENHAM, Recorder, By R. R, WICKERSHAM, Deputy. 1192 Filed August 13th, 1861. W. H. CHEVERS, Clerk. Garrison Exhibit No. 2. Certified copy of deed from J. A. Sutter to H. H. Hackney et al. Know all men by these presents that I, John A. Sutter, of Hock Farm, on Feather river, Upper California, for and in consideration of the sum of five thousand four hundred and sixty-eight dollars and twenty-five cents, to me in hand paid by H. H. Hackney and G. W. McCullough, the receipt whereof is hereby acknowledged, have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, unto the said Hackney and McCullough, all that certain piece or parcel of land lying and being in the district of Sacramento, State of California, and bounded and described as follows: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, distance ten feet, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distance 49 feet, one mile below 1193 "Plumas;" thence down to mouth of Bear creek; thence up Bear creek to a point which shall be upon a direct magnetic meridian east of the point of beginning; thence west (magnetic) to said point of beginning, on Feather river, containing eighteen hundred and twenty-two and three-quarters acres, more or less: to have and to hold the above granted land and premises unto them, the said. Hackney and McCullough, their heirs and assigns, to them and their sole use and behoof forever. And I, the said Sutter, for myself and for my heirs, executors, and administrators, hereby covenant and agree to and with the said Hackney and McCullough, their heirs and assigns, that I am well and truly seized of the above granted land and premises, and have lawful right and authority to convey the same, and that I will, and that my heirs, executors, and administrators shall, and will warrant and defend the same against the lawful claims and demands of all persons whomsoever. In witness whereof, I have hereunto set my hand and 1194 [ ] seal on this the third day of April, A. D. eighteen hundred and fifty. JOHN A. SUTTER. By his attorney, FREDERICK EMORY. Signed, sealed, and delivered in the presence ofWITTS JOHN WARREN. S. S. HACKNEY. The United States vs. Sutter. 817 STATE OF CALIFORNIA, Town of Eliza, set: I hereby certify that on this ninth day of May, A. D. 1850, before me, justice of the peace of the said State in and for the town aforesaid, personally appeared Frederick Emory, known to me to be the party acting for the grantor in the foregoing indenture or instrument of writing, and as said grantor's attorney acknowledged the same to be his act and deed. Witness my hand and seal. PHIL. W. KEEPER, [SEAL.].Alcalde of Eliza and Justice of the Peace. I, Dewitt C. Benham, recorder of Yuba county, do hereby certify that the foregoing pages from page one to page six hundred and seventythree, inclusive, of this book, contains the records of deeds transcribed by me, from the books which were kept by Stephen J. Field, as 1195 alcalde of Marysville or Yubaville, and from the books kept by Philip W. Keeper, as alcalde of Eliza, and from the books kept by Alfred Lawton, as recorder of Yuba county, pursuant to the act of the legislature of the State of California entitled " An act concerning the records of Yuba county," approved April 19, 1856. In witness whereof I hereto set my hand and official seal the fifth day of January, A. D. one thousand eight hundred and fifty-seven. (Signed) D. C. BENHAM, [SEAI.] Recorder, Yuba County, California. STATE OF CALIFORNIA, County of Yuba, ss: I, W. H. Wickersham, recorder of Yuba county, do hereby certify that the foregoing is a full, true, and correct copy of deed, with the certificate of acknowledgment, now of record in my office, in book number 1, on pages 233 and 234, of the transcribed records of Yuba county. And I do further certify that the foregoing certificate is a 1196 true and correct copy of the original, as the same appears upon page 673 of said book 1. In witness whereof I have hereunto set my hand and affixed my [SEAL. official seal this the 9th of August, A. D. 1861. {~SEAL.]~ W. H. WICKERSHAM, Recorder, By J. H. WICKERSHAM, Deputy. Endorsed: Filed Aug. 13, 1861. W. H. CHEVERS, Clerk. Garrison, Exhibit No. 9. —Deedfrom Lloyd Tevis to Wm. R. Garrison. This indenture, made the twelfth day of August, in the year of our Lord one thousand eight hundred and sixty-one, between Lloyd Tevis, party of the first part, and William R. Garrison, party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of five thousand dollars, lawful money of [REC. CCLVIII, D. T. 1862.]-52 818 The United States vs. Sutter. the United States of America, to him in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, 1197 remised, conveyed, and quit-claimed, and by these presents doth grant, bargain, sell, remise, convey, and quit-claim, unto the said party of the second part, and to his heirs and assigns forever, all the right, title, and interest of the said party of the first part of, in, and to all that certain piece or parcel of land lying and being in the county of Yuba, State of California, bounded as follows, to wit: Beginning at a point on the east bank of Feather river, which point is or was marked by a twelve-inch oak tree, bearing N. 86~ W., distant ten feet, and a twenty-four inch sycamore tree, bearing N. 70~ E., distant forty-nine feet and about one mile below the town of Plumas, running thence down Feather river to the mouth of Bear creek, thence up Bear creek to a point which shall be upon a direct magnetic meridian east of the point of beginning, and thence west magnetic to the place of beginning on Feather river, containing eighteen hundred and twenty-two and three-fourths acres, more or less. Together with all and singular the 1198 tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues, and profits thereof. To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. This conveyance is made without covenant or warranty of any kind expressed or implied. In witness whereof the said party of the first part hath hereunto set his hand and seal the day and year first above written. LLOYD TEVIS, [SEAL.] Witness: P. B. CORNWALL. STATE OF CALIFORNIA, City and county of San Francisco, ss: On this twelfth day of August, A. D. one thousand eight hundred and sixty-one, before me, P. B. Cornwall, a notary public in and for said city and county, duly comissioned and sworn, personally 1199 appeared Lloyd Tevis, whose name is subscribed to the annexed instrument as party thereto, personally known to me to be the individual described in and who executed the said annexed instrument, and the said Lloyd Tevis acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. In witness whereof I have hereunto set my hand and affixed my official seal the day and year in this certificate first above [SEL.] written. P. B. CORNWALL, Notary Public. Endorsed: Filed Aug. 13th, 1861. W. H. CHEVERS, Clerk. The United States vs. Sutter. 819 Afidavit of L. E. Shortt. In the district court of the United States for the northern district of California THE UNITED STATES vs. No. 319. JOHN A. SUTTER. j STATE OF CALIFORNIA, 1200 City and county of San Francisco, ss: Lawrence H. Shortt, being duly sworn, deposes and says that he is by profession and occupation a surveyor and a resident of the aforesaid city and county, and that he has made a careful examination and measurement of all that portion of the map marked "B. P. L.," and filed in the above-entitled action, which extends west from the eastern margin of said map five miles and seven-eighths of a mile, and being south of the American river and between said river and the dotted line on said map south of said river, ordered by this court to be taken as the southern boundary line of "New Helvetia," and of the land claimed in this action. And that this deponent has also made a careful examination and measurement of all that portion of the official survey returned in this case on the seventeenth day of July last, embraced between the southern bank of the Ameri1201 can river and the southern boundary line of said survey, and extending west from the eastern boundary line of said survey, south of said river five miles; and that the southern boundary line on said official survey, at its eastern terminus, is only one and one-sixteenth of a mile due south of the American river; and that at the corresponding point on said map B. P. L." the aforesaid dotted southern boundary line is one and onehalf a mile due south of said river; and that at a mile due west of the last-mentioned point the southern boundary line on said official survey at its nearest point is only one mile due south of said river, while said dotted line at the corresponding point on the map "'B. P. L." is one and one-fourth of a mile due south of said river; and that at a mile due west of the last-mentioned point the southern boundary line on the plat of the official survey is only one and three-sixteenths of a mile due south of said river at its nearest point, while at the corresponding on the map "B. P. L." said dotted line is one and five1202 eighths of a mile due south of said river; and that at a point one mile due west of the last-mentioned point, the southern boundary line on the plat of said official survey is only one and onesixteenth of a mile due south of said river, while at the corresponding point on the map "B. P. L." said dotted line is one and threeeighths of a mile due south of said river; and that at a point one mile due west of the last-mentioned point, the southern boundary line on the plat of said official survey, at its nearest point, is only one-half a mile due south of said river, while at the corresponding point on the 820 Tle United States vs. Sutter. map " B. P. L." said dotted line is seven-eighths of a mile due south of said river. And deponent further says, that by actual measurement of the plot of said official survey, and of said map "B. P. L.," that said map "B. P. L." and said river and the dotted line south thereof on said map all extend seven-eighths of a mile further east than said 1203 official survey; and deponent further says, in his aforesaid calculations he has estimated distances on the map "B. P. L." according to the scale of miles (taking the same as English miles) on said map. And deponent further says, that the quantity of land embraced between said river and said dotted line on the south thereof, as shown on the map "B. P. L," and extending west from the eastern margin of said map five miles and seven-eighths of a mile, exceeds by twelve hundred and seventy-eight acres the quantity of land embraced between said river and the southern boundary line on said official survey; the aforesaid quantity of land, as represented on the map "B. P. L.," amounting to four thousand seven hundred and thirty acres, and the aforesaid quantity, as represented on said official survey, amounting to three thousand four hundred and fifty-two acres. And further deponent saith not. L. H. SHORTT. Subscribed and sworn to before me this 14th day of August, 1204 A. D. 1861. [S~EAL. 1P. B. CORNWALL, ASEaL.], Notary Public. Endorsd: Filed Aug. 15, 1861. W. H. CHEVERS, Clerk. Afidavit of Geo. R. Turner. In the district court of the United States for the northern district of California. THE UNITED STATES ) VS. No. 319. JOHN A. SUTTER. ) STATE OF CALIFORNIA, City and county of San Francisco, ss: George R. Turner, being duly sworn, deposes and says that he is by profession and occupation a surveyor, and is now the official surveyor of the aforesaid city and county, and that he 1205 has made a careful examination and measurement of all that portion of the map marked "B. P. L." and filed in the above-entitled action, which extends west from the eastern margin of said map five miles and seven-eighths of a mile, and being south of the American river, and between said river and the dotted line on The United States vs. Sutter. 821 said map south of said river, ordered by this court to be taken as the southern boundary line of "New Helvetia," and of the land claimed in this action; and that this deponent has also made a careful examination and measurement of all that portion of the official survey returned in this case on the seventeenth day of July last, embraced between the southern bank of the American river and the southern boundary line of said survey, and extending west from the eastern boundary line of said survey south of said river five miles; and that the southern boundary line on said official survey at its eastern terminus is only one and one-sixteenth of a mile due south of the 1206 American river, and at the corresponding point on said map "B. P. L." the aforesaid dotted southern boundary line is one and one-half a mile due south of said river; and at a mile due west of the last-mentioned point the southern boundary line on said official survey, at its nearest point, is only one mile due south of said river, while said dotted line at the corresponding point on the map " B. P. L." is one and one-fourth of a mile due south of said river; and that at a mile due west of the last-mentioned point the southern boundary line on the plat of the official survey is only one and threesixteenth of a mile due south of said river at its nearest point, while at the corresponding point on the map "B. P. L." said dotted line is one and five-eighths of a mile due south of said river; and that at a point one mile due west of the last-mentioned point the southern boundary line on the plat of said official survey is only one and onesixteenth of a mile due south of said river, while at the corresponding point on the map "B. P. L.," said dotted line is one and 1207 three-eighths of a mile due south of said river; and that at a point one mile due west of the last-mentioned point the southern boundary line on the plat of said official survey, at its nearest point, is only one-half a mile due south of said river, while at the corresponding point on the map "B. P. L," said dotted line is seven-eighths of a mile due south of said river; and deponent further says, that by actual measurement of the plot of said official survey, and of said map "B. P. L." that said map "B. P. L." and said river and the dotted line south thereof on said map all extend seven-eighths of a mile further east than said official survey; and deponent further says in his aforesaid calculations he has estimated distances on the map "B. P. L.' according to the scale of miles, taking the same as English miles on said map; and deponent further says, that the quantity of land embraced between said river aid said dotted line on the south thereof, as shown on the map. 1208 P. L." and extending west from the eastern margin of said map five miles and seven-eighths of a mile, exceeds by twelve hundred and seventy-eight acres the quantity of land embraced between said river and the southern boundary line on said official survey south of said river, and extending west five miles from the eastern boundary line of said official survey. And further deponent saith not, GEO. R. TURNER, 822 The United States vs. Sutter. Subscribed and sworn to before me this 15th day of August, A. D. 1861. [SEAL.] P. B. CORNWALL, Notary Public. Endorsed: Filed Aug. 15, 1861. W. I. CHEVERS, Clerk. 1209 Exceptions to survey on part of U. S. In the district court of the United States for the northern district of California. THE UNITED STATES vs..No. 319.-L. C. 92. JOHN A. SUTTER. J Exceptions to second survey by the United States. And now come the U. S. by their att'y for this district, W. H. Sharp, esq., and except to the official survey returned to this court under date of July 17th, 1861, of the land confirmed in this case, upon the grounds hereinbefore filed as exceptions to the first survey made and returned to this court, so far as they are applicable hereunto. And they except because the present survey includes within its limits a large tract of land lying to the south of the American river. Whereas by the espediente, diseno, grant, maps, and other matters put in evidence it is apparent that the grant made by the Mexican government was not intended to convey and did not convey 1210 to the said John A. Sutter any land south of a line which ran several miles north of the American river, which said line corresponds to the location of the parallel of latitude 38~ 49' 32" when laid down on the map or diseno (or the true copies thereof, shown by map A. P. L.) presented to Gov'r Alvarado with the petition of said John A. Sutter, according to the scale on said map or copy. WM. H. SHARP, U. S. Att'y. Endorsed: Filed August 15, 1861. W. H. CHEVERS, Clerk. Exceptions of intervenor Hiram Grimes. In the district court of the United States for the northern district of California. THE UNITED STATES vs. No. 319, for "Nueva Helvetia." JOHN A. SUTTER, claimant. 1211 Now comes Hiram Grimes, intervenor in the above-entitled cause, by his counsel, and excepting to the plat of location filed The United States vs. Sutter. 823 herein on the 17th day of July, A. D. 1861, hereby renews his exceptions filed herein on the 23d day of June, 1860, so far as the same are applicable to the said plat of location; and as an additional exception to said plat of location says that the first boundary line in the 3d tract mentioned in the order and decree of this court of July 17th, 1861, is not now on said plat of location according to the directions of said order and decree in this: that it does not run north along the western surveyed line of the "Norris rancho" to a point which is on the line of separation between the tule and good land; for said intervenor avers that there is no tule land on said western surveyed line of said "Norris rancho" for more than two (2) miles north of the north bank of the American river; and the dotted line on the map "B. P. L." is about one mile and a half (1k) distant north from the American river by running along said western sur1212 veyed line of said "Norris rancho;" but the line run on said plat of location only extends about five-eighths (-) of a mile running north from the said American river. The said intervenor, therefore, avers that said line is incorrectly run on said plat of location, and that it ought to extend not less than a mile and a half running north from the said American river. Wherefore the said intervenor prays that the said plat of location may be rejected, annulled and set aside, and that a new survey be made so as to include the lands set forth and described in the said exceptions of this intervenor, filed as aforesaid, on the 23rd day of June, 1860, and as therein prayed for. EDWARD NORTON and A. C. WHITCOMB, Counsel for intervenor Grimes. Endorsed: Filed August 15, 1861. W. H. CHEVERS, Clerk. 1213 Objections of Amos Pratt. In the district court of the United States for the northern district of California. THE UNITED STATES v. pNo. 319. JOHN A. SUTTER. 5 Now comes Amos Pratt, interpleader, under deed from John A. Sutter, in his own proper person, and objects to the plat or survey locating the land finally confirmed to John A. Sutter, in this case, which was filed in this court in July 17th, 1861, by the surveyor general of the United States for California, as showing the location directed by this court in its order of July 1st, 1861. Said Pratt objects to the said survey or plat, because it locates the land outside of the boundaries of the grant as described in the said grant, and as explained in the depositions of John J. Vioget, on file in this case, and because it locates the land in separate pieces, em 824 The United States vs. Sutter. bracing much larger proportion of river bank or frontage than law or equity will permit. 1214 AMOS PRATT, In his own proper person. Endorsed: Filed August 19, 1861. W. H. CHEVERS, Clerk. Order allowing testimony to be taken before Wm. H. Chevers. At a stated term of the district court of the United States of America for the northern district of California, held at the courtroom in the city of San Francisco, on Monday, the 19th day of August, in the year of our Lord one thousand eight hundred and sixtyone. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES vv. No. 319. JOHN A. SUTTER. And now, at this day, come the parties hereto, by their attorneys, and also come other parties, strangers to the record, by their 1215 attorneys, and ask leave to take testimony in support of exceptions filed under the order entered August 3rd, 1861; whereupon it is ordered that all the above-named parties have leave to take testimony in support of their said exceptions, commencing on Tuesday, the 27th day of August inst., at 11 o'clock a. m., without further notice, before Wm. H. Chevers, esq., U. S. com'r, continuing from day to day until the same be concluded; reserving the point whether the default heretofore entered shall be opened, and the said last-named parties, strangers to the record, be allowed to intervene, until the hearing upon said exceptions be had. Endorsed: Filed August 19, 1861. W. H. CHEVERS, Clerk. 1216 Order substituting C. McAllister for W. H. Chevers, as Cornm'r. At a stated term of the district court of the United States of America for the northern district of California, held at the courtroom in the city of San Francisco, on Tuesday, the 27 day of August, in the year of our Lord one thousand eight hundred and sixty-one. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES V. -No. 319. JOHN A. SUTTER. ) And now, at this day, on application of W. H. Sharp, esq., U. S. att'y, it is ordered that the order heretofore entered that testimony The United States vs. Sutter. 825 in this case be taken before W. H. Chevers, esq., U. S. com'r, be va-.cated at his request, in consequence of other engagements, and that Cutler McAllister, esq., U. S. cornm'r, be substituted. Endorsed: Filed Aug. 27, 1861. W. H. CHEVERS, Clerk. 1217 Exceptions to survey by John H. McKee, intervenor. In the district court of the U. S. for the northern district of California. THE UNITED STATES vs. No. 319, for "Nueva Helvetia." JOHN A. SUTTER, claimant. ) John H. McKee, one of the intervenors in the above-entitled cause, excepting to the plat of location filed herein on the 17th day of July, 1861, hereby reserves his exceptions filed herein on the 26th day of September, so far as the same are applicable to the said plat of location. And for a new and additional exception to said plat of location avers that the easterly and northeasterly boundary lines in the 3rd tract mentioned in the order and decree of this court of July 1st, 1861, are not run on said plat of location according to the directions of said order and decree in this: That they do not run north along the western surveyed line of the "Norris rancho," or " Rancho del Paso, to a point which is on the line of separation between the tule 1218 and good land, and thence westerly and northerly along said line of separation to a point due east of the mouth of Feather river; for said intervenor avers that there is no tule land on said western surveyed line of said "Norris rancho" for more than three miles north of the north bank of the American river, and that there is much high and good land between the Sacramento river and the dotted line (on map B. P. L.) mentioned in said 3rd tract, which land is not included within the limits of the said 3rd tract, as laid down on the said plat of location. The said intervenor therefore avers that the said easterly and northeasterly boundary lines of said 3rd tract are incorrectly run on said plat of location, and that they ought to extend further to the north and northeast, in order to conform to the said line of separation between the tule and good land. Wherefore the said intervenor prays that the said plat of location be rejected, annulled, and set aside, and that a new survey be 1219 made of said 3rd tract, in which survey the easterly and northeasterly boundary lines of said tract shall conform to the said line of separation. JOHN H. McKEE, Intervenor. Endorsed- Filed Oct. 7, 1861. W. H. CHEVERS, Clerk. 826 The United States vs. Sutter. Dep. of Geo. B. Turnerfor intervenor Gelston. In the district court of the United States for the northern district of California. THE UNITED STATES JOTHE UNI STATES In land cases, dist. court, No. 319.-Land corn. JOHN A. SUTTER. Be it remembered that, on this 28 day of August, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the 1220 United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States pursuant to the acts of Congress in that behalf, personally appeared, George R. Turner, a witness produced in behalf of intervenor Roland Gelston, in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: W. H. Sharp, U. S. att'y for U. S.; E. Johnson, for intervenor Gelston; J. B. Williams, for N. Algier et al., intervenors; L. Aldrich, for intervenors Samuel Brannan and Wm. R. Garrison. Deposition taken without notice in pursuance of the orders of court heretofore made, herein referring said cause for testimony to be taken therein, said orders bearing dates respectively. 1221 Questions by att'yfor intervenor Gelston. Quest. 1st. Your name, age, and place of residence? Ans. 1st. George R. Turner; am over 21 years of age; I reside in San Francisco. Quest. 2nd. What is your occupation? Ans. 2nd. I am civil engineer and surveyor; am city and county surveyor of the city and county of San Francisco. Quest. 3rd. State whether you made an examination and measurement of any portion of the map B. P. L. filed in this case, and also of the plat of the official survey or location filed herein, July 17, 1861; and if so, of what portions? Ans. 3rd. I did make such an examination. (Question, No. 3rd., objected to as incompetent.) Examination adjourned until 3 o'clock this p. m. 1222 SAN FRANCISCO, Aug. 28,'61, 3 o'clock p. m. Examination of George R. Turner continued. Present: Same attorneys as at previous sitting. Quest. 4th. I repeat the former question. The United States vs. Sutter. 827 Ans. 4th. I made such an examination of the portions south of the American river at the eastern extremity of the grant; I made the examination on the 30 of July. Quest. 5th. How far west did you extend such examination? Ans. 5th. Six miles and seven-eighths of a mile. Quest. 6th. How far east from the Sacramento river, on the south side of the American, is the eastern boundary line of said official survey? Ans. 6th. It is about 9 miles, measuring from the mouth of the American; on its southern bank, it measures 8 miles and 70 chains. 1223 Quest. 7th. How far east from the Sacramento river, on the southern bank of the American, does the dotted line on the map B. P. L. extend? Ans. 7th. According to the scale on the map B. P. L., it extends ten miles. Quest. 8th. Which extends it farthest east, the map B. P. L. or the official survey? Ans. 8th. The B. P. L. map. There is a difference of one mile and ten chains. Quest. 9th. How far due south from the American river is the southern boundary line of said official survey at its most easterly extremity? Ans. 9th. About one mile and six chains. Quest. 10th. How far due south of said river is the said southern boundary line at a point one mile west of its eastern extremity? Ans. 10. About one mile and thirty chains. Quest. 11th. How far due south of the said river is the said 1224 southern boundary line at a point two miles west of its eastern extremity? Ans. 11. One mile and a half. Quest. 12th. How far due south of said river is the said southern boundary line at a point three miles west of its eastern extremity? Ans. 12. About one mile and six chains. Quest. 13th. How far due south of said river is the said southern boundary line at a point four miles west of its eastern extremity? Ans. 13th. About three-quarters of a mile. Quest. 14th. How far due south of said river is the said southern boundary line at a point five miles west of its eastern extremity? Ans. 14th. One mile and six chains. Quest. 15th. How far due south from the American river is the dotted line on the map B. P. L., and which has been taken by the court as the southern boundary line of the New Helvetia grant at the corresponding points mentioned in the last five ques1225 tions commencing with the most easterly point? Ans. 15th. The first and most easterly one referred to is one mile and a half; the next one west is a mile and a quarter; the next is a mile and a half; the fourth, a mile and twenty-five chains; and the next is about 65 chains; and the last one is a mile and 30 chains. 828 The United States vs. Sutter. Quest. 16th. Have you estimated the area embraced between the southern bank of the American river and the aforesaid dotted lines south thereof, as shown on the map B. B. L., and extending west from the eastern margin of said map five miles and seven-eighths of a mile; and if so, state the area therein contained? Ans. 16th. I have. It contains four thousand seven hundred and thirty acres. Quest. 17th. Have you estimated the area embraced between the southern bank of the American river and the southern boundary line, as shown on said official plat, and extending easterly from the 1226 point mentioned in the last question as being five miles and seven-eighths of a mile west from the eastern margin of the map B. P. L., five miles east therefrom; if so, state the area thereof? Ans. 17th. I have; and it amounts to three thousand four hundred and fifty-two (3,452) acres. Quest. 18th. State the difference between the two quantities? Ans. 18th. The difference is twelve hundred and seventy-eight acres. Cross-examination. —Questions by U. S. att'y. Quest. 19th. Have you made any survey upon the lands shown on the official plat of the location east of the Sacramento and south of the American rivers? Ans. 19th. I have not. Quest. 20th. In answer to quest. 6th, you state the distance to be about 9 miles, by the official plat from the Sacramento river, at 1227 the mouth of the American to the eastern boundary line of the plat, and in answer to question 7th, the distance between the same points on map B. P. L. is ten miles. The order of the court directing a new survey provides that the eastern line shall be identical with the western line of the Leidesdorff survey, which boundary is shown on the official plat by the line B. F; now, can you point out on map B. P. L. where the line B. F., as shown on the official plat, will intercept the American river? Ans. 20th. The line B. F. on the official plat laid down on the map B. P. L., commencing at the same point on the river according to the shape of the river, would be 7 of a mile west of the east, an extremity of the dotted line on the map B. P. L; this calculation is made according to the scale on the map B. P. L. Quest. 21st. What would be the area cut off by the application of the line B. F. to map B. P. L.? Ans. 21st. About 630 acres. 1228 Quest. 22nd. This would reduce the difference of 1,278 acres, mentioned in your answer to the 18th question, to 648 acres, would it not? Ans. 22nd. Yes, sir. Quest. 23rd. Where do you find this excess of 648 acres? Ans. 23rd. Between the southern boundary of the river and tho dotted line. The United States vs. Sutter. 823 Quest. 24th. Please explain the method of which you arrive at that result. Ans. 24th. The two quantities are obtained from each of the maps by measuring on the maps according to their scales. Quest. 25th. You have made no allowance then for the inaccuracy with which the American river is shown on the map B. P. L., assuming that the official plat correctly locates that river? Ans. 25th. I have made no allowance for any inaccuracies in that respect. Quest. 26th. Examine the plat now shown you, to be at1229 tached to this deposition, marked "Exhibit, Beale No. 1," upon which is delineated that part of map B. P. L., which shows the American river and the dotted line, and that part of the official plat showing the same points, and state, upon your knowledge as a surveyor, whether the location of the dotted line upon said exhibit is not more accurately determined than by your estimate? (This question objected to by counsel for Roland Gelston, on the ground that it is wholly irrelevant and not responsive to anything drawn out on the direct examination.) Ans. 26th. If you keep the location of the river the same, my estimate is as accurate as the way said points are located on the exhibit. Quest. 27th. But it is shown by the official plat that the actual location of the American river varies considerably from B. P. L., and the purpose of my question is to ascertain whether or not, in your opinion, the location of the dotted line would not be more ac1230 curately determined by the method shown by Exhibit, Beale No. 1, than by assuming the map B. P. L. to be correct? Ans. 27th. The way laid down upon the said exhibit is an accurate way of determining those things. Direct examination resumed. —Question by counsel for Gelston. Quest. 28th. In determining any boundary line by the method referred to, should not the quantity or area of land intended to have been taken be carefully preserved? Ans. 28th. If there was an area it should have been preserved. Cross-examination resumed.- Questions by counsel for U. S. Quest. 29th. You mean by the last answer, do you not, that if a specific quantity is named within certain boundaries, that in the actual survey that area should be preserved? Ans. 29th. Yes; some regard should be paid to the boundaries. GEO. R. TURNER. 1231 Subscribed and sworn to before me this 28th day of August, 1861. CUTLER McALLISTER, U. S. Comm'r. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 830 The United States vs. Sutter. 1232 Bearings and distances of the red dotted line C. D. F. B., taken from the sketch made on the scale of 80 ch's to 1 inch. No. of course. Bearing. Distance 1......................N. 86~ E................. 170.00 2....... -... -.....-... N. 27 E................... 148 00 3......................N. 571 E...................148.00 4......................S. 461 E.................... 84.00 5......................S. 56 E................... 62 00 6......................S. 77 E......................40.00 7............ N. 872 E...................80.00 8......................N. 781 E..................40.00 9......................N. 55 E....................60.00 10................... N. 711 E...................60.00 11......................N. 471 E. to west boundary of land confirmed to ex' rs of J. L. Folsom, thence along said boundary. 12...................... North to the tree on left branch of the American river. 1233 In the matter of the survey of the rancho New Helvetia, confirmed to John A. Sutter.-D. C., 319, To the Hon. Ogden Hoffman, U. S. district judge: I herewith exhibit a plat of tract No. 1 of the survey of rancho;New Helvetia," as ordered by decree filed July 1st, 1861. This decree gives for my guidance three established points on the official surveys returned by my predecessor, J. W. Mandeville, esq., as follows, viz: A. The junction of the American and Sacramento rivers. B. The tree on the south bank of the American river, on the line dividing this rancho from that confirmed to the ex'rs of J. L. Folsom. C. A sycamore tree on the east bank of the Sacramento, marked "N. H., S. W. cor." The decree states, (referring to this last corner,) "and which is identical with the point on the Sacramento river, shown on the map B. P. L., where the line marked lindero latitud norte 38~ 49' 1234 32" intersects the east bank of that river, and which is identical also with the point on said river where the southernmost dotted line on said map B. P. L. commences." This establishes C as the point of beginning for the dotted line on B. P. L. The decree further says, " thence easterly and along the course of said dotted line, as shown on said map B. P. L., but conforming to and running on the lines of government surveys to a point due south of a certain marked tree on the south bank of the American river, which tree is known and marked as the tree dividing the lands of Sutter from that granted to Wnm. A. Leidesdorff, and confirmed by this court to the ex'rs of J. L. Folsom, &c." I find, therefore, that the decree for the southern boundary of tract No. I is specific, viz: easterly and along the course of said dotted line, as shown on said map B. P. L. The United States vs. Sgtter. 831 The only question then is, how is this office to arrive at the proper location of said line? 1235 This single question can be solved as shown on the plat herewith filed. The plat shows a copy of this portion of the " Exhibit B. P. L.," with the "Escala de Millas Terrestras" found on said exhibit; and also the three points A B C above referred to. On the same plat, in a larger sketch, I also show the meanders of the Sacramento from points A to C, and of the American river from A to B, as they are found on the official records of this office. I have therefore, as a basis for my survey, two official lines, (indicated for my governance,) representing corresponding lines on Exhibit B. P. L. But as the line A B on Exhibit B. P. L., measured by the "Escala de Millas Terrestras," is approximately one mile longer than the line A B, found by official surveys to be the true distance, a scale has been made for said line on the plat, to give it (the line A B on Exhibit B. P. L.) the corresponding measurement of the line A B. For the same reasons another scale was made for the line A 1236 C of the Exhibit B. L. P. to correspond with the measurement of the line A C. TheX, according to said two scales, and the scale of 80 chains to the inch for the larger sketch, lines in red were drawn at spaces of one mile and parallel to the lines A B and A C. A B and A C thereby subdividing the tract in parallelograms, of which each side, on both sketches, is one mile in length, and a subdivision on one sketch shows the identical location of the corresponding subdivision on the other sketch. In this way the proper location of the prominent points of the dotted line (C D E) of Exhibit B. P. L. is ascertained by distances measured to said line from and in the directions of the red lines. I therefore state that the dotted line C D E is identical with the dotted line on Exhibit B. P. L., but as the meanders of the American river, as found by official survey, differ materially, especially in the eastern part, as indicated on the sketch, from those in the Exhibit B. P. L., I think it proper, before returning a location of the 1237 said dotted line, to place the matter before you for further instructions. The dotted line C D E is the line ordered to be run by the court in the said decree, dated July 1st, 1861; the question with this office is, whether or not it is the line intended by the decree upon which the lines of public surveys are to be run. Very resp'y, your ob't serv't, E. F. BEALE, U. S. Sur. Gen'l. Endorsed: Filed October 9, 1861. W. H. CHEVERS, Clerk. 832 The United States vs. Sutter. Dep. of Lawrence H. Shortt for intervenor Gelston. 1238 In the district court of the United States for the northern district of California. THE UNITED STATES X THE UITED STATES In land cases, dist. court, No. 319.-Land V. JOHN A. SUTTER. Com., No. 92. Be it remembered, that on this 31st day of Aug. A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California to take acknowledgements of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States pursuant to the acts of Congress in that behalf, personally appeared Lawrence H. Shortt, a witness produced in behalf of intervenor Gelston in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in 1239 the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, by J. B. Williams, for U. S.; E. Johnson, for intervenor Gelston; J. H. McKee, in pro. per.; L. Aldrich, for Brannan and Garrison. Questions in behalf of the intervenor Gelston. 2 o'clock, p. m., examination continued pursuant to adjournment of this morning. Quest. 1st. Your name, age) place of residence, and occupation? Ans. 1st. Lawrence H. Shortt; I am 27 years of age; I reside in the city and county of San Francisco, and am a surveyor and civil engineer by profession. Quest. 2nd. State whether you have recently made an examination and measurement of the map B. P. L. filed in this case, and also of the plat of the official location filed in this case on the 17th of July last? Ans. 2nd. I have made an examination and measurement of 1240 a portion of each of said maps of the portion along the south bank of the American river, extending from the eastern extremity of the American river, as shown on the map B. P. L., for the distance of six miles and a half westwardly and upon the plat of official location from the point marked thereon'B," "Tree old boundary mark," on the south bank of the American river, extending westerly five miles. Quest. 3rd. At the place last mentioned, (on the southern bank of the American river,) does the said plat of the official location extend the same distance east as the dotted line on the south side of the American river, and the American river on the map B. P. L.? The United States vs. Sutler. 833 Ans. 3rd. Not upon the official location, measuring by the scales of the respective maps, taking the scale of miles on B. P. L. as English miles. On B. P. L. the dotted lines extends 8- or -o of a mile further east than on the official location, measuring from 1241 the mouth of the American river. Quest. 4th. Please state how far the eastern termination of the southern boundary line, as shown on the official plat of locationI mean the subdivision line-is due south from the southern bank of the American river? Ans. 4th. One mile and one-eighth. Quest. 5th. At the corresponding point to the one mentioned in last question on map B. P. L. how far is the dotted line on said map south of the American river, (and which has been taken by the court as the southern boundary of the New Helvetia grant,) due south of the American river? (That part of the question enclosed in brackets objected to as irrelevant to this examination.) Ans. 5th. One mile and a half. Quest. 6th. How far due south from the American river is the southern boundary line, as shown on the official plat of location, 1242 at a point one mile due west from the eastern termination of said line-I mean the subdivision line-and answer same question as to dotted line? Ans. 6th. The nearest distance to the subdivision line is one mile, the longer distance one and a quarter miles, to the dotted line on said map one mile and an eighth. Quest. 7th. At the point of said dotted line on the map B. P. L. corresponding to the point mentioned in question 6, how far is said dotted line on the map B. P. L. due south of the American river? Ans. 7th. One mile and a quarter. Quest. 8th. How far due south from the American river is the southern boundary line, as shown on the official plat of location, at a point two miles west of the eastern termination of said line, that is, the subdivision line and also the dotted line on said map? And also how far is the said dotted line on the map B. P. L. at the cor1243 responding point due south of said river? Ans. 8th. The shortest distance on the official plat is a mile and a quarter, the longest distance a mile and a half, of the subdivision line, and of the dotted line one mile and seven-sixteenths; and on the map B. P. L. the dotted line is one mile and five-eighths south of said river. Quest. 9th. How far due south from the American river is the southern boundary line, as shown on the official plat of location, at a point three miles west of the eastern termination of said line, that is, the subdivision line and also the dotted line on said map? And also how far is the dotted line on the map B. P. L. at the corresponding point due south of said river? Ans. 9th. The subdivision line is one mile and one-sixteenth of a mile. The dotted line on the official plat of location is one mile and [REc. CCLVIII, D. T. 1862.]-53 834 The United States vs. Satter. one-eighth of a mile; the dotted line on B. P. L. is one mile 1244 and three-eighths of a mile. Quest. 10th. How far due south from the American river is the southern boundary line as shown on the official plat of location, four miles west of the eastern termination of said line, that is, the subdivision line and dotted line on said map. And also how far is the dotted line on the map B. P. L. at the corresponding point due south of said river? Ans. 10th. The shortest distance of the subdivision line is half of a mile; the longest distance-three quarters of a mile; the dotted line five-eighths of a mile; the dotted line on the B. P. L. map seveneighths of a mile. Quest. 11th. How far due south from the American river is the southern boundary line as shown on the official plat of location, at a point five miles west of the eastern termination of said line, that is, the subdivision line, and also the dotted line on said map? And also how far is the dotted line on the map B. P. L. at the corresponding point due south of said river? Ans. 11th. The shortest distance of the subdivision line is 1245 one mile; that is, on the official plat. The longest distance on said plat is one mile and a quarter. The dotted line thereon is a mile and one-eighth of a mile. On B. P. L. map the distance is one mile and a quarter. Quest. 12th. Have you made an estimate of the area contained between the southern boundary line (subdivision line) on said official plat of location and the American river, and extending from the eastern termination of said official plat south of said river five miles, west along the bank of said river? And if so, state the area in acres therein contained. Ans. 12th. I have made such estimate, and the area amounts te 3.452 acres. Quest. 13th. Have you made an estimate of the area contained between the southern bank of the American river, and the dotted line laid down on the map B. P. L., south of said river, and extending 5 miles and seven-eighths of a mile west, from the eastern termi1246 nation of said dotted line and said river, as shown on said map? And if so, state the quantity in acres therein contained. Ans. 13th. I have made such estimate, and find the area to be 4,730 acres. (The foregoing examination objected to by United States as incompetent.) Cross-examination. Quest's by att'y for U. S. Quest. 14th. In answer to quest. 12, you make the area of a certain portion of the official plat 3,452 acres, and in answer to quest. 13th, you make the area of a certain portion of the map B. P. L. 4,730 acres, being a difference of 1,278 acres. Please explain how this occurs. Ans. 14th. The dotted line boundary on the map B. P. L. extends The United States vs. Sutter. 835 further south and further east than the subdivision line on the official location, thereby giving a greater area. Quest. 15th. State how much of the excess found by you on 1247 map B. P. L. of 1,278 acres, is contained in that part of map B. P. L. which extends farthest east than the official plat. Ans. 15th. Six hundred and thirty (630) acres. Quest. 16th. The excess then would be reduced to 648 acres, would it not; and if so, where do you find that excess? Ans. 16th. It would; and it is caused by the dotted line on B. P. L. being further south than the subdivision line on the official plat. Quest. 17th. Do you mean to say, from your knowledge as a surveyor, that if you were to locate the area shown on map B. P. L. of which you have testified, upon another plat on which the American river would be accurately laid down, as it is upon the official plat, that you would adopt the distances from the American river, as that river is shown on map B. P. L. by the method shown on your direct examination, or would you adopt, as a surveyor, the method shown upon the paper now shown you marked Exhibit Beale No. 1, 1248 attached to dep. of George R. Turner, prepared under the authority of U. S. surveyor general? (Question objected to as irrelevant, and because there is no such map produced as the one mentioned in the question; that is, the map shown the witness was not made under the authority of the United States surveyor general.) Ans. 17th. The method as shown on Exhibit Beale No. 1 is the correct one for laying down the position of certain lines and boundaries upon a map drawn to a scale from one the scale of which is ambiguous. With regard to the laying down of the river on said exhibit, according to its actual location, I can say nothing about. Quest. 18th. Assuming that the Sacramento and American river, as shown on Exhibit Beale No. 1, drawn to the scale of 80 chains to one inch, are accurately laid down, and that by inspection, it appears that the same rivers upon map B. P. L. are incorrectly laid down, and the object being to ascertain the true position of the dotted line 1219 on the map B. P. L. with reference to the two natural objects mentioned; is not the method shown by Exhibit Beale No. 1 more correct than the method shown by your direct examination? (Question objected to as being a repetition of the previous ques. tion.) Anls. 18th. To lay down the dotted line upon Exhibit B. P. L. with reference merely to the points A, C, D, E, B, I consider the method shown on the exhibit the most correct. Quest. 19th. You say merely to those points; what other points, if any, are there to be considered? Ans. 19th. What I mean is, that it is the best method of laying it down with reference to the extreme points, but not to the intermediate points. Quest. 20th. But if correct with reference to the extreme points 836 The United States vs. Sutter. that is, points A, C, D, E, and B-must it not necessarily be accurate in regard to the intermediate points? 1250 Ans. 20th. It would not necessarily be correct in regard to the intermediate points. Examination adjourned until Monday, Sept'r 2nd, 1861, at 10 o'clock a. m. SAN FRANCISCO, Sept'r 2nd, 1861. Examination adjourned until 74 this p. m., having met pursuant to adjournment. SAN FRANCISCO, Sept. 3, 1861. Examination resumed by consent. Present as before. Question 21st. In your answer to question 20th you have said that the method shown by Exhibit Beale No. 1 would not necessarily be correct with regard to the intermediate points; that is, at any other points than A. C, D, E, and B. State whether or not in your opinion those intermediate points are shown correctly on said exhibit; and if not, why not? (Objected to by Mr. Johnson, for Gelston, because that is 1251 a question for the court to determine.) Answer 21st. If the American river as shown on B. P. L. is correct, the proportionate distances would be correct throughout; if the position of the American river is altered, the proportion would be destroyed. The American river has been moved from the position it occupies on B. P. L., while the dotted line has not been proportionably removed. Question 22nd. State, then, where the error of proportion is. Answer 22nd. On the first parallel west from the "tree, old boundary mark;" the distance shown by scale of 80 chains to the inch from the river. as shown on B. P. L. to the black dotted line, is 125 chains; from the corrected river to the red dotted line, the distance shown by same scale is 100 chains. On the next parallel west, from the B. P. L. river to the black dotted line, 130 chains; from the corrected river to the red dotted line, 125 chains. On the next parallel west, from the 1. P. L. river to the black dotted line, 95 chains; from 1252 the corrected river to the red dotted line, 80 chains. On the next parallel west, from the B. P. L. river to the black dotted line, 40 chains, and the same from the corrected river to the red dotted line. These distances are taken from Exhibit Beale No. 1, on the enlarged sketch. Question 23rd. Then you think that Exhibit Beale No. I should be corrected by altering the dotted line in red, so as to conform to the greater distances you have stated, in order to carry out with certainty its own method? Answer 23rd, I do. That is, that the dotted line should be moved in proportion to the alteration in the American river. L. H. SHORTT. The United States v~. Sutter. 837 Subscribed and sworn to before me this 3rd day of Sept'r, A. D. 1861. [SEAL.]~ CUTLER McALLISTER, ^~~~[SEA^BL.] U. S. Comm'r. Examination adjourned until Thursday next, Sept. 5, A. D. 1253 1861, at 11 o'clock a. m. Endorsed: Filed Oct. 9, 1861. W. I. CHEVERS, Clerk. Dep. of John Brannan, for Sam' l Brannan. In the district court of the United States for the northern district of California. THE UNITED STATES T THE UNITED STATES In land cases.-District court No. 319.-Land JOHN A. SUTTER. com. No. 92. Be it remembered. that on this 17th day of September, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses, in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared John 1254 Brannan, a witness produced in behalf of Samuel Brannan, in the above entitled cause, now pending in said court under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows. Present: J. B. Williams, for W. H. Sharp, U. S. att'y; L. Aldrich, for Sam1' Brannan and Wm. R. Garrison. Questions in behalf of Samuel Brannan. Question 1st. Your name, age, and place of residence? Ans. 1st. John Brannan; I am over 21 years of age; I reside in San Francisco. Quest. 2nd. Do you know John A. Sutter, jr.; if yea, have you ever seen him write, and are you familiar with his signature? Ans. 2nd. I know John A. Sutter, jr.; I have seen him write; I have seen his signature a great many times. 1255 Quest. 3rd. Do you know Jeremiah Sherwood; if so, where is he? Ans. 3rd. I know Jeremiah Sherwood; he is not in this' State at present; he is in the State of New York. Quest. 4th. Do you know W. D. M. Howard? If so, state whether he is alive. Ans. 4th. I knew W. D. M. Howard; I believe he is dead. Quest. 5th. Would you know the respective signatures of Sherwood, Howard, and John A. Sutter, jr., if you should see them? 838 The United States vs. Sutter. Ans. 5th. I should know the signature of John A. Sutter, jr., and of Sherwood, but should not know Howard's. Quest. 6th. Look at the paper now produced on file in this court, marked "Exhibit A to petition and exceptions to survey of Samuel Brannan, filed Aug. 13, 1861, W. H. Chevers, clerk,"' and say whether the signatures of John A. Sutter, jr., and Sherwood, appearing in said document, are genuine. 1256 Ans. 6th. I think they are; Sherwood was in business with my brother for some time, and I had business with him. (Exhibit A now offered in evidence, and a certified copy of the same. A deed from John A. Sutter to John A. Sutter, jr., dated 4 Oct., 1848, certified copy of the orginal now offered in evidence, marked Exhibit D.) (The certified copy of Exhibit A is marked Exhibit B.) Deposition objected to as incompetent, Samuel Brannan not being a party to the record. JOHN BRANNAN. Subscribed and sworn to before me this 17 day of September, A. D. 1861. CUTLER McALLISTER, [SEAL.] U. S. Commn'r. Examination adjourned until to-morrow at 12 o'clock a. m. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1257 Offer of evidence by Sam'l Brannan. District court of the United States for the northern district of California. THE UNITED STATES US. Case No. 319. JOHN A. SUTTER. 3 Samuel Brannan, one of the petitioners in said case, claims title to the land described in his petition by virtue of and under the following conveyances, which are hereby offered in evidence by him ir support of his claim: First. A deed dated October 14th, 1848, from the said John A. Sutter to John A. Sutter, jr., conveying to the latter certain portions of the land subsequently confirmed to the said John A. Sutter in this court, and in this case, embracing within their boundaries as set forth in said deed the land described in the said petition. Second. A deed from John A. Sutter, jr., to the said peti1258 tioner, conveying to the latter the land described in the said petition, dated on the eleventh day of May, A. D. 1849. SAMUEL BRANNAN, By L. ALDRICH, His attorney. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. The United States vs. Sutter. 839 1259 Exhibit Brannan B, offered in evidence by Sam' I Brannan. -John A. Sutter, jr., to Samuel Brannan. This indenture, made and entered into this eleventh day of May, in the year of our Lord eighteen hundred and forty-nine, by and between John A. Sutter, jr., of Sacramento city, Territory of California, of the first part, and Samuel Brannan, of the town of San Francisco, Territory of California, of the second part, witnesseth: That the said John A. Sutter, jr., for and in consideration of the sum two thousand dollars, to him in hand paid by the said Samuel Brannan, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth bargain and sell, unto the said Samuel Brannan, his heirs and assigns forever, certain real estate situated, lying, and being in the district of Sacramento, Territory of California, and known and described as follows, to wit: Two (2) miles square of land on the west side of Feather river, starting one mile south of the ranchori Olush, and running two miles north along the west bank of Feather river; from thence two miles west; from thence two miles 1260 south; and from thence two miles east to the place of starting; said land to be located, marked, and surveyed by and for the said Samuel Brannan, agreeable to his pleasure. To have and to hold the above said premises, with all the appurtenances, rights, and privileges, unto him, the said Samuel Brannan, his heirs and assigns forever. And the said John A. Sutter, jr., for himself, his he's, executors, and administrators, doth further covenant to and with the said Samuel Brannan, his heirs,lexecutors, administrators, and assigns, that the title to the foregoing premises he will forever warrant and defend against the claim or claims of all and every person or persons whoever. In witness whereof, the said John A. Sutter, jr., has hereunto subscribed his name and affixed his seal the day and year aforesaid. JOHN A. SUTTER, JR. [SEAL.] Signed, sealed, and delivered in presence of usJEREMIAH SHERWOOD. W. D. M. HOWARD. TERRITORY OF CALIFORNIA, City and District of Sacramento, ss: Be it known that on this eleventh day of May, A. D. 1849, 1261 before me came John A. Sutter, jr., known to me to be the person whose name appears signed to the foregoing deed as having executed the same, who acknowledged his said signature to be genuine, and the said instrument to be his free act and deed, for the purposes therein mentioned. Before me, FRANK BATES, 1st Alcalde, Sac. District. STATE OF CALIFORNIA, City and County of Sacramento, ss: I, Jerome Madden, county clerk and ex officio county recorder, in and for said city and county, do hereby certify the above and 840 The United States vs. Sutter. foregoing to be a full, true, and correct copy of an instrument of writing now of record in my office in book "A" of deeds, page 36, records of Sacramento county. In witness whereof, I have [SEAL. hereunto set my hand and affixed my official seal this 17th day of August, A. D. 1861. JEROME MADDEN, Co. Clerk, ex-officio Co. Recorder, By AN. C. DAVIS, D. C. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1262 Exhibit Brannan C, offered in evidence by Sam'l Brannan.John A. Sutter to John A. Sutter, jr. Know all men by these presents that I, John A. Sutter, of Nueva Helvetia, in the Territory of Upper California, for and in consideration of the sum of fifty thousand dollars, good and lawful money of the United States of America, to me in hand paid by John A. Sutter, junior, of the same place, the receipt whereof is hereby acknowledged and confessed, and also in consideration of natural love and affection, have granted, bargained, sold, transferred, assigned, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over, unto the said John A. Sutter- junior, his heirs, execu. tors, administrators, and assigns, all the following described real estate and chattels real, together with all the appurtenances, hereditaments, improvements, and betterments thereunto belonging, and bounded and described as follows, to wit: all that certain lot, piece, tract, or parcel of land situate, lying, and being in the said Ter1263 ritory of Upper California, commencing on the north in latitude thirty-nine (39) degrees thirty-three minutes and fortyfive (45) seconds, at a point on the east bank of the Rio de Sacramento, at said latitude; running thence east to the Rio de los Plunas, and three leagues to the east beyond said river; thence south to latitude thirty-eight (38) degrees forty-one (41) minutes and thirty-two (32) seconds; thence west to the said Rio de Sacramento' thence in a northwesterly direction, up and along the course of said river Sacramento, to its intersection with the said Rio de los Plumas; thence in a westerly direction up and along the course of said Rio de Sacramento, to the place of beginning; containing about eleven (11) leagues of land, be the same more or less, excepting d re serving out of said mentioned tract of land a certain piece or parcel of land situate, lying, and being east of the said Rio de Sacramento, and bounded on the north by latitude thirty-nine (39) degrees one (1) minute and forty-five (45) seconds, and on the south by the Rio de los Americanos, and granted by the republic of Mexico to one Elias Grimes; (for a more particular description of the above-mentioned 1264 property reference is hereunto made to a certain map of said premises, surveyed and made by John Jacob Vioget, and now in the archives of the government of the said Territory of Upper California, and also to two certain grants to the said John A. Sutter, The United States vs. Sutter. 841 of said described premises, dated respectively, the one on the eighteenth day of June, in the year one thousand eight hundred and forty-one, and the other in or about the month of November,Iin the one thousand eight hundred and forty-four;) and also all that certain lot, piece, parcel, or tract of land situate, lying, and being in the said Territory of Upper California, known and distinguished as "Fort Ross," together with all the real estate, lands, tenements, and chattels real thereunto belonging and in anywise appertaining to said real estate, containing about six leagues of land, be the same more or less; and also all that certain tract, piece, or parcel of land situate, lying, and being on the river known as the "South Fork," together with the saw-mill and other buildings thereon standing, and the fixtures belonging and appertai thereto, containing about six hundred and forty (640) acres of land in one square mile; and also a certain other lot, piece, parcel, or tract of land lying. situate, and being in the town of San Francisco, in said Territory of Upper California, adjoining the premises of the late William A. Leidesdorff and one George McKinstry. To have and to hold the above-mentioned real estate, lands, tenements, and chattels real, together with all and singular the hereditaments and appurtenances thereunto belonging and in anywise appertaining to the same, unto the said John A. Sutter, junior, his heirs, executors, administrators, and assigns forever. In witness whereof, I have hereunto set my hand and seal this fourteenth day of October, in the year of our Lord one thousand eight hun[SEAL.] dred and forty-eight. J. A. SUTTER. [L. s.] In presence ofMYRON NORTON. J. R. PER LEE. The following described real estate is hereby excepted and reserved out of the property conveyed by the foregoing deed, from John A. Sutter to John A. Sutter, junior, said real estate 1266 having heretofore been conveyed by deed from said John-A. Sutter to the grantees hereinafter named, respectively, to wit: Three miles square of land, lying on the Juber river, conveyed to one John Smith, some time in the year 1844 also one mile and a half of land lying on said river, conveyed to one Michael Ney, some time in the year 1844; also one mile of land lying on Feather river, conveyed to one Nicholas Altgeyer, some time in the year 1840; also one mile of land lying on said Feather river, conveyed to one Edward Farwell, some time in the year 1844, d adjoining the said land of Nicholas Altgeyer; and also one-half mile of land lying in Sutterville, and conveyed to one Lansford W. Hastings, some time in the year 1845. And the said John A. Sutter, junior, hereby releases all right, title, and claim to all and every of the said parcels of land which he may have acquired by virtue of the foregoing deed. In witness whereof, the said parties have interchangeably set 842 The United States vs. Sutter. their hands and seals this eighteenth day of November, one thousand eight hundred and forty-eight. JOHN A. SUTTER. [SEAL.] 1267 i JQHN A. SUTTER, JR, [SEAL.] In presence ofMYRON NORTON. T. R. PER LEE. STATE OF CALIFORNIA, City and County of Sacramento, ss: I, Jerome Madden, county clerk and ex officio county recorder, in and for the city and county of Sacramento, do hereby certify the foregoing to be a full, true, and correct copy of an instrument recorded on the records of Sacramento county, in book A of deeds, on pages 1 and 2. Witness my hand and official seal on this the 19th day of August, A.D. 1861. [SEAL.] JEROME MADDEN, County Clerk and ex oficio County Recorder. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Dep. of John G. Cleal, on behalf of U. S. 1268 In the district court of the United States for the districts of California. THE UNITED STATES) THE UNITED STATESIn land cases. —Dist. court No. 319.-Land T V. corn. No. 92. JOHN A. SUTTER. Be it remembered, that on this 29th day of August, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil cases depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared John G. Cleal, a witness produced in behalf of the United States in the aboveentitled cause, now pending in said court, under the acts of 1269 Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, by J. B. Williams, for U. S.; E. Johnson, for intervenor Gelston; A. C. Whitcomb, for Hiram Grimes; J. H. McKee, for self; L. Aldrich, for Brannan and Garrison; E. T. Gillespie, by F. A. Sawyer. 2The United States vs. Sutter. 843 Questions in behalf of the United States. Examination this day continued from yesterday. Quest. 1st. Your name, age, and place of residence? Ans. 1st. My name is John G. Cleal; I am over 21 years of age; I reside in Sacramento city; I am a surveyor and engineer by profession; at present I hold an office. Quest. 2nd. Have you ever held office in the State of California. And if so, state what office, and for how long you held it. Ans. 2nd. I was elected county surveyor of Sacramento 1270 county in 1850, at the organization of the State government. I have been re-elected twice surveyor since; and the last time I held the office was in 1860. Quest. 3rd. Examine the paper now shown you to be annexed to your deposition, and marked "Exhibit Cleal No. 1," purporting to be a plat of a survey or surveys, certified by H. A. Higley, surveyor general of California, and state, if you know, upon what data said plat was made. Ans. 3rd. The survey was made by A. G. Winn, deputy surveyor of Sacramento county, as swamp and overflowed land, and returned to and approved by the surveyor general of the State. Quest. 4th. How are the swamp and overflowed lands shown upon said exhibit? Ans. 4th. They are shown by red lines. It is the part of the plat which is enclosed by red lines. Quest. 5th. What do the green lines on said exhibit repre1271 sent? Ans. 5th. They represent a part of the boundary of the Rancho del Paso, called the Norris ranch. They represent the western and part of the northern line of said rancho, as surveyed by the United States. Quest. 6th. What is the dotted line intended to represent, shown on said exhibit as running from the western line of said Del Paso rancho, a short distance north of the American river, westwardly to the red line near the Sacramento? Ans. 6th. That represents a portion of Von Schmidt's survey of the Sutter grant. Quest. 7th. Are you well acquainted with the character of the land in the immediate vicinity of that dotted line 9 And if so, state its character between that line and the American river. Ans. 7th. I am well acquainted with that land; the land is low bottom land, cut up with sloughs, and subject to overflow every 1272 season. Quest. 8th. State the character of the land north of that dotted line, and west of the western line of the Del Paso ranch, for a distance of from two to three miles north and west. Ans. 8th. The dotted line runs through grass and scattering oak timber for most of the distance. Immediately north of that line, when I first saw it, which was in 1849, it was all covered with tule. 844 The United States vs. Sutter. I have seen that frequently since at various seasons of the year; the tule now near that line, and for perhaps two or three miles north, has been partially destroyed-tramped out by cattle. Quest. 9th. Was the land described by you in your last answer fit for cultivation, without reclamation, prior to September, 1850? Ans. 9th. It was not. Several parties attempted to cultivate and failed in so doing during the years 1850 and 1851. 1273 Quest. 10th. Describe, from your knowledge of the land, prior to September, 1850, where the line of tule commenced on the west line of the Del Paso rancho, as surveyed. Ans. 10th. On the west surveyed line of the Rancho del Paso, the line of tule commenced about half a mile north from the American river. There were patches of tule between that and the river. The line of tule ran toward the Sacramento river in the same direction with the American river, and about equidistant from the American. Quest. 11th. How far did the line of tule extend from the point you have mentioned, on the west line of the Del Paso rancho, north, and along said line? Ans. 11th. One mile and a half or two miles immediately on the line of the Rancho del Paso, including the space enclosed marked in red lines, and numbered 413. The water overflows this ground every rainy season fiom four to ten feet. The tule was from one to six feet in height in 1849 and 1850. There is very little there now. 1274 It has been ploughed two or three times since 1850, and is now growing up in weeds, grass, and scattering tule. There have been various ditches cut; each claim has been more or less ditched. Quest. 12th. Please state, if you know, on what scale "Exhibit Cleal No. 1" is drawn. Aiis. 12th. One mile, or 80 chains, to the inch. Quest. 13th. What are the two marks drawn across the American river, from bank to bank, a short distance from its intersection with the west line of Ranclo del Paso, intended to represent? Ans. 13th. It is intended to represent a bridge called Lisle's bridge. Quest. 14th. State, if you know, the distance from that bridge to the junction of the American and Sacramento rivers by th6 meanderings of the American rivers. Ans. 14th. It is a trifle over one Spanish league. 1275 Quest. 15th. State if you know where the Norris bridge is over the American river; and if so, its distance in a straight from the mouth of the American river. Ans. 15th. I do; a little over one Spanish league. Quest. 16th. I understand, then, that the distance from Lisle's bridge,'by the meanders of the American river, to its mouth, is about the same as the distance from Norris bridge to the mouth of the American river by, a straight line. Am I correct? Ans. 16th. You are. Quest. 17th. Examine the plat of the official location in this case, filed July 17th, 1861, and state if you find upon it a line corresponding or approximating with the dotted line on " Exhibit Cleal No. 1.'" The United States vs. Sutter. 845 Ans. 17th. I do; it is a line running from the western boundary of the Del Paso grant. due west to the Sacramento river. 1276 Quest. 18th. The line you have just pointed out on the official plat is the line of the survey made by A. W. Von Schmidt, deputy U. S. surveyor, and purports to be a line of separation betwen the tule and good land. Now state from your knowledge as a surveyor, and from your acquaintance with the ground, whether or not said line fairly represents that division. Ans. 18th. There is perhaps some forty acres at the great bend of the American river of land that is not tule, which that line excludes. These forty acres are at the narrowest place between said line and the American river, and north of said line. Quest. 19th. Please answer the same question with reference to the continuation of that line up the Sacramento river, so far as shown on "Exhibit Cleal No. 1." Ans. 19th. I think it is a fair exhibit of the dividing line between the tule land and that not tule: and that the red line on Ex1277 hibit Cleal No. 1 does not represent correctly the line of separation between the tule and land not tule. Quest. 20th. Did you ever run the line upon the ground which is shown on the official plat of location, as running from the western line of the Del Paso rancho, a short distance above the American river, due west to the Sacramento river, and which you have said is identical with the dotted line on Exhibit Cleal No. I? And if so, state whether you found upon the ground the eastern end of that line, and when. Ans. 20th. I frequently ran said line. I found upon the corner a stake marked " N. H. S. N." I found it due north from a point on the American river, which is one Spanish league in a straight line from the junction of the Sacramento and American rivers. I found several oak trees blazed between the corner at which the stake N. II. S. H. is, and the present Norris line. I also found a box elder tree, on a slough, a short distance 1278 west of the Marysville road, which road is shown on the official plat of location by the dotted line running northerly from Lisle's bridge, crossing the western line of the El Paso ranch. Cross-examination. - Qes. by counsel for Grimes. Quest. 21st. Look on Exhibit Cleal No. 1, and state whether within the red lines, as marked on the map, (said exhibit,) there are or are not now, and were not on the first day of last month, thousands of acres of good land and land not tule, (Objected to as incompetent, because the character of tihe land must be described as it existed in September, 1850.) Ans. 21st. I don't know about thousands of acres. There is a great deal of good land, of land not tule, within those boundaries. Quest. 22nd. Is there, or is there not, any tule land, or was there, on the first day of July, 1861, any tule land along the western 846 The United States vs. Sutter. 1279 line of the Norris rancho, for one mile and a half north of the American river? [Objected to on the same grounds as to the last question.] Ans. 22nd. I think not. Quest. 23rd. Was there any tule along said line in September, 1850? Ans. 23rd. There was some. Quest. 24th. Was the land not good land for said mile and a half at said date? Ans. 24th. It is all good land. Quest. 25th. How far above the American river does the Marys. ville and Sacramento road cross the western line of the Norris rancho? Ans. 25th. About a half of a mile. It commences to cross a little south of the dotted line as laid down on Exhibit Cleal No. 1. Quest. 26th. Does that road run through any tule land? Ans. 26th. Not at present; a great deal of it was tule in 1280 1849 and 1850. Quest, 27th. How long has said road been used as a public thoroughfare? Ans. 27th. The present road has been travelled during the dry season since 1850. Quest. 28th. Who first, to your knowledge, and when, occupied and improved the land between the red line enclosure marked 413 on Ex. hibit Cleal No. 1, and the dotted line next south of it? Ans. 28th. I don't recollect. It was occupied by various parties during the dry season, but evacuated at each return of the overflow, with one or two exceptions. In the spring of 1851 and 1854, I think, which were dry seasons, it was not evacuated. It was fenced in, in 1851, by Messrs. Muldron and McKee. I surveyed the line for them; the fence was a ditch only. There was a portion of it fenced in with a stick or brush fence. This was on the western side of the Marysville road, extending two or three miles 1281 on said road. I think a portion of it was ploughed up that year and planted with potatoes. I think there was some hay cut upon it in that year, but the principal part of said hay was cut upon the other side of the Marysville road towards the Rancho del Paso. [Question and answer objected to as incompetent.] Quest. 29th. Taking the eastern line of the strip of land between the American and Feather rivers, on tract No. 3 of the plat of the official location as la[Question withdrawn.] Quest. 30th. How wide a strip of land is there, on an average, between the American and Feather rivers to the east of the eastern line of tract No. 3 on the plat of official location, which is good for grazing and pasturage? [Question objected to as incompetent.] Ans. 30th. The grass land at the present season of the year 7The United States vs. Sutter. 847 1282 upon said line would average from X to f of a mile to the east of said eastern line. Quest. 31st. Is or is not said grass land good and valuable for pasturage and grazing in the dry season of the year? Ans. 31st. It is. Quest. 32nd. State as near as you can when you surveyed the land for Muldron and McKee of which you have spoken before. Ans. 32nd. I think it was in the winter of 1850 and 1851. Direct examination resumed.-Ques. by U. S. att'y. Quest. 33rd. In your answer to quest. 10 you say, "On the west surveyed line of the Rancho del Paso, the line of tule commenced about half a mile north of the American river;" and in answer to quest. 24 you say that it was all good land in September, 1850, 1283 on the west line of the Del Paso rancho for the distance of a mile and a half from the American river. Please explain this more fully. Ans. 33rd. I consider the tule land the best land when reclaimed; therefore, I consider it is all good land. Cross-examination resumed. —Qaes. by counselfor Hiram Grimes; Ques. 34th. In reference to your last answer, has any of said land been ditched or dyked for the purposes of reclamation, or has the reclamation that you speak of accrued solely from its occupation, cultivation, or use? Ans. 34th. Not solely, but principally from the deposit of alluvial caused by the overflows of the river. None of the said land has been ditched or dyked for the purposes of reclamation. Deposition closed. JOHN G. CLEAL. Subscribed and sworn to before me this 29th August, A. D. 1861. r[SE AL. CUTLER McALLISTER, [SEAL.] U. S. Comm'r. 1284 Exhibit Cleal No. 1 objected to as irrelevant, incompetent, and inadmissible and not proved; and all the questions and answers relating to the land prior to 1860 objected to on the part of Grimes and McKee, and the objections by agreement of parties are here noted instead of separately to each question and answer. CUTLER McALLISTER, U. S. Comn'r. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. (Here follows map, page 1284.) 1285 I, Horace A. Higley, surveyor general and register of the State land office, hereby certify that the land embraced within 848 The United States vs. Sutter. the red lines, as shown on the annexed diagram, have been sold by the State of California as swamp and overflowed lands.'H. A. HIGLEY, [SEAL.] Sur. Gen'l and Register. SURVEYOR GENERAL'S OFFICE, Sacramento, Aug. 28th, 1861. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Dep. of John G. Cleal, for intervenor Gillespie. In the district court of the United States for the northern district of California. THE UNITED STATES In land cases.-Dist. court No. 319.-Land V. JOHN A. SUTTER. co. No. 92. 1286 Be it remembered, that on this 29th day of August, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared John G. Cleal, a witness produced in behalf of intervenor Gillespie in the above entitled cause now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. I-. Sharp, by J. B. Williams, for U. S.; E. Johnson, for intervenor Gelston; J. H. McKee, in pro. per.; L. Aldrich, for Brannan and Garrison; F. A. Sawyer, for E. F. Gillespie. Questions in behalf of E. F. Gillespie. 1287 Question 1st. Your name, age, and place of residence? Ans. 1st. My name is John G. Cleal; I am over 21 years of age; I reside in Sacramento city. I am a surveyor and engineer by profession; at present I hold no office. Ques. 2nd. Have you held any office; and if so, when? Ans. 2nd. I have been county surveyor of Sacramento county. I held such office last in 1860. Ques. 3rd. Look upon the map heretofore filed in this case, marked Exhibit B. P. L., and see if you find traced thereon a line of latitude running through the centre of Sutter's fort east and west, and another line running at right angles to first-named line through the centre of said fort north and south, representing its meridian. Ans. 3rd. I find there are such lines. The United Slates vs. Sutter. 849 Quest. 4th. Do you find upon said map B. P. L. a scale of 1288 distances by which to calculate the distance of any line or location from said fort or from any other fixed point or line on said map to any given point thereon? Ans. 4th. I find such scale. Quest. 5th. Look upon the Exhibit B. P. L. and see if you find thereon represented a dotted line commencing at a point on the east bank of the Sacramento river, about 5 miles in a direct line southward from the mouth of the American river, and running thence in a northeasterly direction. Ans. 5th. I find said dotted line on said exhibit: Quest. 6th. Can you, by taking the map B. P. L., guided by the scale and the natural objects delineated thereon, and assisted by your personal knowledge of that locality, derived from frequent surveys' and reconnoissances throughout that vicinity, approximate to a correct description of that dotted line? Ans. 6th. I can. After accepting the point recognised by 1289 court that the said dotted line runs to the southern point of a pond or lagoon in a northeasterly direction, there can be no question as to what pond or lagoon is intended, as there is no other in that direction within six or seven miles, the country being high and dry; and althou' the distance from this lagoon to the river ea4twardly appears further on the map B. P. L. than it measures on the ground, yet a small variation of the line southward would carry it into a bend, similar in shape and distance to that represented on the map. Be that as it may, there is but one such lagoon in that direction. Quest. 7th. What is the distance of the lower end of this lagoon from the starting point on the river measured on the ground? Ans. 7th. From the centre of the slough or outlet of the lagoon to said point on the river is 40 chains. Quest. 8th. Can you follow the dotted line as represented on the map from the lower end of this lagoon northeastwardly? 1290 Ans. 8th. I can. Quest. 9th. Have you read the testimony of John J. Vioget in this case? (Question objected to as incompetent, because at this stage of the cause the inquiry cannot go behind the order directing a new survey and the opinion of the court rejecting the same.) Ans. 9th. I have. Quest. 10th. Look upon exhibit attached to your deposition marked "Exhibit Cleal No. 2," and state whether the St. Clair House, mentioned in Vioget's testimony, is correctly laid down on this exhibit. Ans. 10th. I think it is. Quest. 11th. Was this St. Clair House an old and well-known landmark? Ans. 11th. It was. It is an old adobe building. It was there when I first came to the country in 1849. 1291 Quest. 12th. Look upon Exhibit B. P. L., and state how far south of the fort the dotted line crosses the meridian of the fort mentioned in your answer to ques. 3rd. [REc. ccLvIII, D. T. 1862.]-54 850 The United States vs. Sutter. Ans. 12th. From the centre of the fort it is two miles; by the scale it is not quite two miles, although the line, as run by Von Schmidt, is two miles. Quest. 13th. What is the course and distance from the lower end of the lagoon to the point where the meridian passing through the fort crosses the dotted line? Ans. 13th. The course is north 641 east; and the distance 222 chains and 87 links. Quest. 14th. What is the course from the intersection of the meridian passing through the fort with the dotted line to the St. Clair House? Ans. 14th. The course is north 581 east. Examination adjourned until to-morrow, August 30, at 10 o'clock a. m. 1292 SAN FRANCISCO, August 30, 10 o'clock a. rn. Examination of John G. Cleal, a witness produced on behalf of E. F. Gillespie, this day continued, pursuant to adjournment. Present: Same counsel as on yesterday. Ques. by counselfor Gillespie, Quest. 15th. What is the distance, by the scale, on the map B. P. L., from the point where the dotted line crosses the meridian of Sutter's fort to a point in the direction of the St. Clair House, and one mile from the American river? Ans. 15th. It is about 184 chains. Quest. 16th. How near, at the nearest point within that distance, does the dotted line by the scale approach the line of latitude of Sutter's fort laid down upon the said map, B. P. L.? Ans. 16th. It is in the neighborhood of a mile. Quest. 17th. How near does the line of survey, now before the court, approach said line of latitude at Sutter's fort at this 1293 point? Ans, 17th. It is about 46 chains. Quest. 18th. Is the course of the line of the survey, now before the court, eastward of the point where the dotted line crosses the meridian of Sutter's fort, at variance with the course of the dotted line on map B. P. L.? Ans. 18th. It is at variance. Quest. 19th. How does it vary? Ans. 19th, It seems to incline further northward than on B. P. L. Quest. 20th. Could any surveyor, who was guided by the testimony of Vioget, so far as to take the lagoon as a fixed point, and direction of the St. Clair House as a course, hesitate, as to the exact locate and course, on the ground of the boundary line of this part of Sutter's grant? [Question objected to as incompetent, because the construction of Vioget's testimony is to be determined by the court, not by the witness.] The linited States vs. Sutter. 851 1294 Ans. 21st. There being two points fixed, of course, there could be no hesitation about the line. Quest. 22nd. Do you know that the assessors of Sacramento county have, for a long time, assessed the lands up to that line as a part of the Sutter grant, and outside of that line have assessed the improvements to pre-emptors? [Question objected to as irrelevant, because the assessors have no power to determine the limits of Mexican grants.] Quest. 22nd. I do not. Quest. 23rd. Do you know that in 1851, the intervenor, Mr. Gillespie, had this line surveyed, and has always asserted his title thereto? [Question objected to as irrelevant and incompetent, because the court, and not those holding under Sutter, must determine the line.] 1295 Ans. 23rd. I do know it. Quest. 24th. Is the Vioget line, as laid down by the survey of Von Schmidt, made in 1855, marked upon the official map of Sacramento county, and has it been represented upon that map ever since 1855? [Question objected to as irrelevant and incompetent.] Ans. 24th. It was and is so represented. Quest. 25th. Have you ever surveyed any part of this Vioget line as so represented? Ans. 25th. I have surveyed portions of it, at various times, and am perfectly conversant with the whole line. Quest. 26th. Do you know that the course of the Vioget line and the distance from the lower end of the lagoon to the point in the direction of the St. Clair House, one mile from the American river, is, in the main, correct, as surveyed by Von Schmidt in 1855? 1296 Ans. 26th. I think it approximates, as near as could be, to the representation of the dotted line. Cross-examination.- Ques. by J. B. Williams, esq., att'y for United States. Quest. 27th. In answer to quest. 12 you state, that by map B. P. L., the dotted line crosses the meridian of the fort about two miles from it; have you ascertained whether the said fort is accurately laid down upon map B. P. L. by an examination on the ground; or do you assume that it is laid down correctly? Ans. 27th. I have every reason to believe that it is correctly laid down on said map; it appears to be so. So far as the line is concerned, I believe it to be correct. Quest. 28th. Have you tested, on the ground, whether the fort itself is accurately laid down on B. P. L.? Ans. 28. The map is too imperfect to say whether it is correctly laid down on B. P. L. I have made no examination on the ground to 852 The United States vs. Sutter. find out whether said fort is accurately laid down upon ]. 1297 P. L. Quest. 29th. Answer the same question in respect to the American river, as shown on B. P. L. Ans. 29th. I have not made such examination; but I am sure it is not laid down correctly on said B. P. L. Quest. 30th. I understand, from your direct examination, that Sutter's fort and the course of the American river, as laid down upon Exhibit ClealNo. 2, are correctly shown on that exhibit. Am I correct? Ans. 30th. You are correct; they are correctly laid down on said exhibit. Quest. 31st. And that the green line on Exhibit Cleal No. 2, marked Vioget line, is what you consider the correct location of that line, by the method which you have developed upon your direct examination? Ans. 31st. Precisely so. Quest. 32nd. Please explain more fully how you arrive at that result, when the data which you take from Exhibit B. P. I., 1298 namely, the fort and the American river, are erroneous. Ans. 32nd. I get at the result by the position of the fort and dotted line on said B. P. L., and not by the American river, which is incorrectly laid down on said B. P. L. Quest. 33rd. Explain how you make the position of the fort upon B. P. L. and upon Exhibit Cleal No. 2 coincide. Ans. 33rd. From the distance being nearly the same from the river, and the line being drawn correctly. Quest. 34th. But if the river, as laid down upon Exhibit Cleal No. 2, be correct, and the river, as laid down upon B. P. L., be incorrect, how can you assume that the fort is shown in the same place upon both? Ans. 34th. In consequence of the distance from the fort to the river on that line where it strikes the river, the line upon Exhibit B. P. L. corresponds very nearly with that represented on Cleal No. 2. 1299 Quest. 35th. Is not that determining the location of the river by the position of the fort, rather than the position of the fort by the river? Ans. 35th. No. I consider the river at that point may be correct, but in the main the river is not correctly laid down on B. P. L. Quest. 36th. Does not your last answer show that you arrive at that conclusion by taking the fort as a starting point? Ans. 36th. It does not. Quest. 37th. Explain why not. Ans. 37th. I cannot explain it. Quest. 38th. Do you not, in your method of ascertaining the proper location of the Vioget line, take Sutter's fort, as laid down upon B. P. L, as your fixed point of departure? Ans. 38th. Not as it is laid down upon B. P. L., but from actual measurement on the ground. Quest. 39th. But was it not actually necessary to assume the The Unit3d States vs. Sutter. 853 1300 fort to be correctly located on B. P. L. in order to apply your method of ascertaining said line? Ans. 39th. Yes. Quest. 40th. Now examine the map marked Exhibit Beale No. 1, attached to dep. of George R. Turner, and state whether the method shown on that exhibit, by which the location of the Vioget line is ascertained by the surveyor general of the United States, is not more correct and accurate than your own? Ans. 40th. It is decidedly the most correct method of ascertaining that dotted line correctly. Deposition closed. JOHN G. CLEAL. Subscribed and sworn to before me this 30th day of August, A. D. 1861. [SEAL.] CUTLER McALLISTER, U. S. Comm. Endorsed: Filed Oct. 10, 1861. W. H. CHEVERS, Clerk. (Here follows map, page 1300.) Dep. of Lewis Whittier, on the part of U. S. 1301 In the district court of the United States for the northern district of California. THE UNITED STATES l THE UNITED STATES In land cases.-Dist. court, No. 319.-Land JOHN A. SUTTER. com. No. 92. Be it remembered, that on this 30 day of August, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared Lewis Whittiel, a witness produced in behalf of the United States in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: 1302 Present: W. H. Sharp, by J. B. Williams, for U. S.; E. Johnson, for Gelston; A. C. Whitcomb, for Hiram Grimes; J. H. McKee, pro. per.; L. Aldrich, for Brannan and Garrison. Questions in behalf of the United States. Question 1st. Your name, age, and place of residence? Ans. 1st. Lewis Whittier; I am over 21 years of age; I reside in Sacramento city. 854 The United States vs. Sutter. Quest. 2nd. State how long you have, resided in Sacramento city, and in that vicinity. Ans. 2nd. Since 1849-except the summer of 1850, when I was up in the mountains for some six months. Quest. 3d. Were you in 1849 and 1850 well acquainted with the country bordering on the north of the American and east of the Sacramento river, say, from Lisle's bridge to the junction of the Feather and Sacramento rivers? 1303 Ans. 3rd. I was well acquainted with said country; part of the time I was hunting as a business, which carried me over that country frequently. Quest. 4th. State whether or not there was a lane through which you travelled north of the American; and if so, its direction, and its distance from the American? Ans. 4th. There was a ford near where Lisle's bridge now is. About a half a mile from said ford you came to the lane, which ran about east and west. The lane ran in the same general course of the river towards the Sacramento river; it ran about half of the mile from the river. Quest. 5th. Describe the character of the land at that time, with respect to tule, between that lane and the American river. Ans. 5th. Where this lane turned off from what is now the Marysville road there was slough; the lane crossed the slough with tule on each side. Between the lane and the river there was some tule, 1304 scrub oaks, and some large oaks on the banks of the slough. Quest. 6th. Describe the character of the land generally north of the lane. Ans. 6th. A quarter of a mile above the lane north you would come into heavy tule. There was a neck of tule that came down to the land, and which was crossed by the lane. South of the lane a portion of this neck of tule extended, but the main body of heavy tule was on the north of the lane. Quest. 7. From your observation of the country at that time, did the course of that lane leave on the right hand, going towards the Sacramento river, what might be called tule land, and on the left hand, or between the lane and the American river, the kind of land described in your answer to quest. 5? Ans. 7. It did. Cross-examination.-Ques. in behalf of J. H. McKee. 1305 Quest,. 8th. Do you know who first enclosed the land north of saiTAlane? Ans. 8thi. I do not. Quest. 9th. When was said land first enclosed and occupied, and by whom? Ans. 9th. There was a ditch put up on the Marysville road; I do not know who put it there; it was put there some time in 1850. The ditch ran right on the Marysville road from this lane. I do. The United States vs. Sutter. 855 not recollect how far it ran on said road; it might have been half a mile or more. They used the land inside of this ditch for grazing purposes. The ditch was put there to serve as a fence. This fence has been kept up ever since. It has been put up whenever it has been washed away, which has been two or three times. Since it was first enclosed, it has been used for grazing purposes and for cutting hay on. (Ques. and answer objected to as irrelevant.) 1306 Ques. 10th. What do you know about a ditch fence running from the Marysville road, about two miles north of the American river, around towards the Sacramento and meeting the Wilson slough? (Ques. objected to as irrelevant.) Ans. 10th. Some time after 1850, I can't tell exactly when, there was such a fence enclosing several farms above the Bush farm, so called, enclosing that much ground; you might call it farms, or anything else. This ditch cut through the tule from the Marysville road to Wilson's slough. Part of the land enclosed by this ditch was tule ever since it has been enclosed. It has been used for grazing and cutting hay, and some gardening along the banks of the slough. Deposition closed. L. WHITTIER. Subscribed and sworn to before me this 30 day of August, A. D. 1861. CUTLER McALLISTER, 1307 U. S. Comm'r. Examination under the orders of reference, heretofore referred to, adjourned until to-morrow, Aug. 30, A. D. 1861, at 11 o'clock. CUTLER McALLISTER, U. S. Commn'r. AUG. 31, 1861. Examination adjourned until this p. m., at 2 o'clock. CUTLER McALLISTER, U. S. Con' r. Endorsed: Filed Oct. 9, 1861. W. H. CHIEVERS, Clerk. Dep. of C. Bielawski, on behalf of U. S. In the district court of the United States for the northern district of California. THE UNITED STATES In land cases.-Dist. court No. 319.-Land JOHN A. SUTTER. com. No. 92. JOHN A. SUTTER. ) Be it remembered that on this 5th day of Sept., A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAl 856 The United States vs. Sutter. 1308 lister, a commissioner duly appointed by the circuit court of the United States for the districts of California to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared Casimir Bielawski, a witness produced in behalf of the United States in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, by J. B. Williams, for U. S.; E. Johnson, for Gelston.; F. A. Sawyer, for E. F, Gillespie. Questions in behaf of the U. S. —Examination continued pursuant to adjournment. Quest. 1st. Your name, age, place of residence, and occupation? Ans. 1st. Casimir Bielawski; I am over 21 years of age; I 1309 reside in San Francisco; I am principal draughtsman in the surveyor general's office. Quest. 2nd. Examine the plat now shown you marked Exhibit, Beale No. 1, attached to the deposition of George R. Turner, filed in this case, and state what it is, who made it, and under whose direction it was made? Ans. 2nd. It is a copy of a portion of the Exhibit B. P. L., and a copy of the same tract of land, except represented in a different scale. I made it under the orders of the United States surveyor general for California, in accordance with the order of the United States district court for the northern district of California. Quest. 3rd. Please explain what said exhibit is intended to demonstrate? Ans. 3rd. It is intended to show the location of the dotted line on Exhibit B. P. L., running south of the American river relatively to the three points of the triangle, A B C, on the American and Sacramento rivers. The decree of the United States district court directing a 1310 new survey fixes the location of the three points, A B and C, which are also determined by official measurements, the maps of which are on record in the U. S. surveyor general's office; the decree of the court also directed that the dotted lines on said exhibit, one marked C D E in red, and the other marked C D E in black, should be identical. As the distances A B and A C, on the part representing Exhibit B. P. L., measured by the scale of terrestrial miles, does not correspond with the distances, A B and A C, (red,) obtained by official surveys, I made for each of the lines A B and A C, (black,) the proportionate scales which are shown upon said Exhibit Beale, No. 1. then I subdivided the lines in A B and A C, (black,) and A B and A C, (red,) in equal number of miles, and drew from the intersection of the mile points lines parallel to the lines A B and A C, thereby subdividing the tract of land in question in parallelograms, of which the four sides measure The United States vs. Sutter. 857 one mile; then by the proportionate scales of the lines A B 1311 and A C, (black,) shown on Exhibit, Beale No. 1, I determined the proper position of the black dotted lines C D E, (red,) corresponding to the line in black, C D E, shown on that part of said exhibit representing Exhibit B. P. L; a simple inspection of any two corresponding parallelograms in these two sketches, on said Exhibit, Beale No. 1, will prove that the black dotted lines correspond with each other as nearly as possible. The part of the American river, shown with dotted lines on the sketch, on said exhibit, drawn to the scale of 80 chains to the inch, represents the same portion of the river, shown on Exhibit B. P. L., but as the proper location of the same part of the river is farther south, I was order by the surveyor general's chief clerk, Mr. Conway, to locate the portion of the dotted line between D and F (red) as far south as it is laid down on Exhibit B. P. L., which order I executed in locating the line D F dotted red, which line is from the American river, as ascertained by surveys measured at right 1312 angles to the general course of the river, is as far south of it as the dotted line D E, black, on that part of said exhibit representing B. P. L., but the measurements of the distances between the dotted line and the American river, as shown on B.P. L., instead of being taken by its own scale, are taken by the combined scales, as shown on said Exhibit, Beale No. 1, which were made by myself for the lines A B and A C, (black.) The reason for discarding the scale of B. P. L., and adopting the combined scales, is, that the scale of Exhibit B. P. L. does not correspond with the measurements, as found by actual surveys, and that the direction of the measurements taken at right angles to the gen eral course of the American river, between the points D and B, black, between said river and the dotted line D E, is neither parallel to the line A B nor to the line A C, but it divides the angle B A C into two parts; therefore, I made these measurements on a scale combined from the two scales made for the lines A B and A C, black. 1313 Quest. 4th. Do I understand, then, that the points C A B, as shown on that part of Exhibit, Beale No. 1, representing B. P. L. having been made certain, by the order directing a new survey, and those same points having been ascertained from official surveys, also shown on said exhibit, that the red dotted line on said exhibit conforms, both with respect to direction and distance, as near as possible to the black dotted line shown on B. P. L.? Ans. 4th. My opinion is, that the black dotted line shown on the Exhibit, Beale No. 1, on that part drawn to scale of 80 chains to the inch, is the correct line shown by the dotted line on B. P. L. The red dotted line I was ordered to make, as before stated, because it would better correspond to the difference between that part of the American river, shown on B. P. L., where it does not agree with the actual river. Quest. 5th. Look at the plat of official location, filed July 17, 1861, and state which line upon Exhibit, Beale No. 1, cor 858 The United States vs. Sutter. 1314 responds with the dotted line on said plat, marked "the dotted line of the Exhibit B. P. L." Ans. 5th. The red dotted line C D F on said Exhibit, Beale No. I, and over which is marked the letters in black C D E, The courses and distances in red on Exhibit, Beale No. 1, correspond with the table of bearings and distances on the said official plat. Cross-examination.-Ques. for intervenor Gelston. Quest. 6th. In your reply to ques. 3rd, you said that the points A B C has been determined by official measurement, the maps whereof you say are on record in the U. S. surveyor general's office, please state when such official measurements were made, and in what cases. Ans. 6th. They were made in the case of the preliminary survey in the New Helvetia ranch, by A. W. VonSchmidt, U. S. deputy surveyor, in 1854 or 1855, and also to the case of the Leidesdorff ranch, confirmed to the executors of J. L. Folsom, and then 1315 in the survey by Von Schmidt in this case, which was rejected by the court. Quest. 7th. What locations and distances were determined by the preliminary survey of Von Schmidt, above referred to? Ans. 7th. The lines A B and A C, or so much of the Sacramento and American rivers as are contained between those points. Quest. 8th. Was not the preliminary survey of Von Schmidt, referred to, in fact, a private survey instead of an official one? Ans. 8th. I only know that the calculations, field-notes and plats of that survey are on file in the U. S. surveyor general's office. Quest. 9th. Are there not various maps of private surveys on file in the U. S. surveyor general's office? Ans. 9th. I do not know. Quest. 10th. According to the scale of miles on the map B. P. L. does the plat of official location, filed July 17th, 1861, extend 1316 as far east along the southern bank of the American river as the dotted line on said map B. P. L.? (Question objected to as incompetent, because the order directing a new survey has established the eastern point of termination on the American river, and therefore that point is not now open to discussion.) Ans. 10th. It is about one mile and a quarter longer, according to the general course of the river on Exhibit B. P. L., than on the sketch of official location, from the mouth of the American river to the tree marked "old boundary mark." Quest. 11th. How far is it from the tree marked "old boundary mark," due south, to the eastern termination of the southern boundary line on the official plat? Ans. 11th. It is about one mile. Quest. 12th. How far is it from a point on the south bank of the American river, as shown by map B. P. L., one mile and a 1317 quarter west from the eastern terminus of that river, as The United States vs. Sutter. 859 shown on said map B. P. L., due south, to the dotted line B. Pi L., measured by the scale of B. P. L.? Ans. 12th. About one mile and a half. Quest. 13th. Answer the same question, substituting for one mile and a quarter 21 miles and 34 miles? Ans. 13th. At 21 miles the distance is about one mile and a quarter; at 31 miles the distance is about one mile and a half. CASIMIR BIELAWSKI. Subscribed and sworn to before me this 5th day of September, A. D. 1861. CUTLER McALLISTER, U. S. Commissioner. Examination adjourned until 1 o'clock Friday, Sept'r 5th, 1861. SEPT. 5, 1861. Examination adjourned until Wednesday, Sept'r 11th, 1861, at 1 o'clock p. m. OCT. 4, 1861. Examination resumed by consent. 1318 Cross-examination.- Quest. byE. V. Gillespie. Quest. 14th. Look on map B. P. L. and see if you find thereon dotted lines following the margins of the river? Ans. I do not. Quest. 15th. Have you then not been governed by a dotted line represented as indicating the southern line of the grant? (Objected to by U. S., because the question assumes that what is known as the southern Vioget line is a line intended to follow the course of the American river.) Ans. I have. Quest. 16th. How do you distinguish between a line drawn upon a map intended to represent a survey definitely and a course jotted down as an aproximation only to such survey? Ans. I would put down the lines actually surveyed by 1319 distinctly drawn lines; those only guessed at by dotted lines. Quest. 17th. Is not this the uniform custom amongst surveyors and draftsmen? (Objected to because the witness is only competent to prove the custom existing amongst U. S. deputy surveyors, and not the custom of Vioget, or any particular surveyor.) Ans. It is so the custom in our office. Quest. 18th. Do you suppose the southern dotted line on map B. P. L. could possibly represent the exact line of the survey made upon the ground? (Objected to because that point is not now open, having been determined by the court.) Ans. I cannot tell, for I don't know how Vioget made the map, 860 The United States vs. Sutter. but suppose the dotted line may be as accurate as the river line, so far as his survey is concerned. Quest. 19th. Look on the map B. P. L. and say whether, 1320 judging bythe distance byscale, from the mouth of the American river to the point south of it where the dotted line intersects the Sacramento river, as compared with the known distance between those points, there is not evidence that the dotted line on that map was jotted down I of a mile or more below the point recognized as the starting point of this survey? (Question objected to as irrelevant and incompetent, because the point of commencement on the Sacramento river has been arbitrarily fixed by the court, without regard to the distance shown by the scale on B. P. L.) Ans. 19th. I can answer this-the most southern point on the Sacramento river is about 51 miles, by the scale of B. P. L., distant from the mouth of the American river; by the location made by the court the distance from the starting point, as so located, to the mouth of the American river is about 41 miles. 1321 Quest. 20th. If the dotted line on map B. P. L. commenced further south than is represented on Exhibit, Beale No. 1, would not the whole of said line be out of its true place, and too far north, as laid down on Exhibit Beale, No. 1? (Question objected to, because it is not shown that the point of commencement on the Sacramento river, as shown on the official location, is different from the point on the Sacramento river where the Vioget line commences, as shown on map B. P. L, so far as any natural object is concerned and without regard to the scale.) Ans. 20th. It would; but the difference would decrease as it goes eastward until it reaches the Leidesdorff line. Quest. 21st. Look upon map B. P. L. and see if you find designated thereon a point marked "Estabissamento del Nueva Helvetia," and a "lindero" or line of latitude running through it? 1322 Ans. 21st. I find them. Quest. 22nd. Do you find another line of latitude drawn at the starting point? Ans. 22nd. I see "lindero latitud norte 330 49' 32" marked upon it, written south of the line of latitude mentioned in quest 21st. Quest. 23rd. Why have you omitted to draw upon Exhibit, Beale No. 1, the location of Sutter fort and the line of latitude at that point? Ans. 23rd. Because it was not necessary for the location of the dotted line C D E on that exhibit as ordered by the court. Quest. 24th. If you had the latitude of the fort and the latitude of the starting point, and ran a line on the ground similar to the red line on Exhibit Cleal, taking the bearings of the fort from different pdints as you went along, could you not correctly map the positions of the fort and the starting point and the line run upon the 1323 ground referred to, irrespective of any other objects of rivers, &c. Ans. 24th. I could. The United Stat(s vs. Sutter. 861 Quest. 25th. Could you not also give the correct distance between these points? Ans. 25th. I could. Quest. 26th. Do you know where on the American river the St. Clair House stands, as represented in the field-notes of the preliminary survey on file in your office; and do you see the position of the American river just southeast of it? Ans. 26th. I do; it is close to the left bank of the American river, opposite the letter R in river, and is indicated by a black dot on Exhibit, Beale No. 1. Quest. 27th. Do you see a similar bend in the American river about five miles east of its mouth, as represented on map B. P. L? Ans. 27th. I do. Quest. 28th. Taking the American river on map B. P. L. 1324 as a boundary, how far south from the south side of the bend referred to would the dotted line be found to measure by the scale of B. P. L.? Ans. 28th. A little over half a mile, and from the northernmost angle of the dotted line to the nearest point of the American river about three-fourths of a mile. Quest. 29th. At that bend about how far south from the channel of the American river, as represented on map B. P. L., does the said river, as surveyed by A. W. Von Schmidt, actually run? Ans. 29th. About one-third of a mile. Quest. 30th. Then, as an actual fact of location, what would you go by in order to determine the relative positions of the river at that point and the dotted line; would you measure from the actual river, or from an imaginary line supposed erroneously to represent said river; which should govern? 1325 (Objected to, because the question assumes that the order directing a new survey or location requires the dotted line to be ascertained with respect to its distance from the point on the American river referred to in the question; whereas the dotted line is to be located by certain fixed points.) Ans. 30th. If I had to determine the location of a line by its actual distance from a river, I would take the river as actually existing and not an imaginary river. Quest. 31st. If any uncertainty exists as to the true position of the dotted line, would it not be most correct to measure from the American river for distance? (Objected to, because it assumes that there is uncertainty in the dotted line, whereas said line is certainly shown on map B. P. L.) Ans. Yes, in taking an average distance. Quest. 32nd. If in the survey of Sutter's southern line you were instructed to run from the starting point, or from a laguna 1326 about a of a mile east of it, directly towards a fixed point, known as the St. Clair Iouse, could you hesitate, after finding the laguna and the St. Clair House, as to the exact line to be traced upon the ground? 862 The United States vs. Sutter. (Question objected to as irrelevant, because no such instructionhas been given by the court.) Ans. 32nd. I could not hesitate in regard to it. Quest. 33rd. In the survey now before the court, were you governed by any personal reconnoissance of the ground, or by the natural objects described in the testimony of Juan Vioget in this case? (Question objected to, because it is understood and admitted by all parties that the plat of location was made in the office of the surveyor general, and without going upon the ground. Secondly, because the order of the court, under which the plat of location was made, does not refer the surveyor to any testimony of Vioget, 1327 but merely directs that the dotted line found on map B. P. L. shall be accurately located on the plat of location.) Ans. 33rd. It was not. C. BIELAWSKI. Subscribed and sworn to before me this 4 day of October, A. D, 1861. [SEAL] CUTLER McALLISTER, U. S. Comrn r. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Exhlbit Y, filed by U. S. This indenture, made this first day of January, in the year of our Lord one thousand eight hundred and fifty, between John A. Sutter, of Hock Farm, on Feather river, in Upper California, party of the first part, and James Sevige, of the town of Vernon, in Upper California, party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of thirty-six hundred dollars, to him in hand paid by the said party of the 1328 second part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath given, granted, bargained, sold, and conveyed, and by these presents doth give, grant, bargain, sell, and convey unto him, the said party of the second part, all that tract or parcel of land lying and being on the east side of Feather river, in Upper California, which is bounded as follows, that is to say: beginning at a point on the east bank of Feather river three and one-fourth (31) miles below the southern boundary of that tract of land belonging to Fred. Emory; thence down the river on a base with the general run of the river for one mile; thence easterly, back from the river one mile; thence northerly, one mile; thence westerly, one mile to the point of beginning, containing six hundred and forty acres, more or less. To have and to hold unto the said party of the second part, his heirs and assigns forever; and the said party of the first part for himself, his heirs, executors, and administrators hereby covenant with the said party of the second part, his heirs and assigns, the above conveyed 1329 land and premises, against the lawful claims and demands of all The United States vs. Sutter. 863 persons whatsoever, and by these presents forever to warrant and efend. In testimony whereof the party of the first part hath hereunto set his hand and seal, on this the day and year first abovewritten. JOHN A. SUTTER, [SEAL.] By his Attorney, FRED. EMORY. Signed, sealed and delivered in presence ofFRANKLIN LAWTON, A. H. RICHARDS. Words, on a base with the general run of the river, interlined before sealing and sign'ng. FRED. EMORY. FRANKLIN LAWTON, A. H. RICHARDS. STATE OF CALIFORNIA, County of Sutter, ss: On this third day of July, A. D. 1850, personally appeared before me, a notary public in and for the said county of Sutter, Franklin Lawton, one of the subscribing witnesses above named, to me 1330 known, who, being by me duly sworn, did depose and say that he resided in the town of Vernon, in said county; that he knew Fred. Emory, above named, and who executed the above conveyance, as the attorney of John A. Sutter, the grantor therein described; that he was present and saw the said Fred. Emory sign, seal, and deliver the same as such attorney, as and for the act and deed of the said John A. Sutter, freely and voluntarily, and for the uses and purposes therein mentioned, and that he, the said Lawton, thereupon subscribed his name to such conveyance as a witness thereof. [SEAL.] Witness my hand and official seal, WILLIAM B. OLDS, Notary Publicfor Sutter County. Endorsed: Sacramento district, sub-alcalde's office at Vernon. Received and recorded January 10th, 1850, in Record A, page 193. GILBERT A. GRANT, Sub-alcalde. 1331 Came into office for record July 5th, A. D. 1850, 11.26 o'c'lk a. m., and recorded July 5th, A. D. 1850, 5.12 o'c'lk p. m. in book A, fol. 60 and 61. G. LAWRENCE, Dep' ty Becorderfor Sutter County, 864 The United States vs. Satter. U. S. district court. THE UNITED STATES V..No. 319. JOHN A. SUTTER. ) And now come the United States, by Wm. H. Sharp, their attorney, and offer in evidence before Cutler McAllister, esq., U. S. commissioner, to whom was referred the taking of testimony herein under the orders heretofore entered of August 19th and 27th, 1861, the annexed deed, marked Exhibit Y, of John A. Sutter, by his attorney, Fred. Emory, dated Jan'y 1, 1850, to James Sevige, for six hundred and forty acres of land lying and being on the east bank of Feather river, and which said deed is the same deed referred to irt the exceptions of the United States to the survey of the land 1332 confirmed herein, to wit, in the fifth exception therein, and which exceptions were filed April 6, 1860; the said deed having been omitted to be offered in support of said exceptions through inadvertence, as set out in the exceptions of the United States, filed Aug. 12th, 1861, under the order of court, entered August 3, 1861. San Francisco, Sept. 16, 1861. WIM. H. SHARP, U. S. Att'y. Att'y for Gelston objects to the introduction of above exhibit, on, the ground that the deed does not appear to have been executed by John A. Sutter. CUTLER MCALLISTER, U. S. Comm'r. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1333 Exhibit Z, filed by U. S. JOHN A. SUTTER to JAMES SEVIGE, deed: Know all men by these presents that I. John A. Sutter, of Hock Farm, in the Sacramento district, and Territory of California, in consideration of the sum of eighteen hundred and fifty dollars to me in hand paid before the ensealing hereof by James Sevige, of Vernon, in said district, the receipt wheretf is hereby acknowledged, have bargained, granted, sold, and conveyed, and by these presents do bargain, grant, sell, and convey, unto the said James Seivage the following described tract or parcel of land situate in the district aforesaid, to wit: Commencing at the eastern line of the town of Vernon at its intersection with Sacramento river, and running along the bank of said river, in a southeasterly direction, one-half mile and one hundred and sixty feet; thence at right angles with the course of said river in a northeasterly direction one mile; thence in a westerly direction to the northeast corner of said town of Vernon, according to the 1334 survey of the same; thence down the easterly line of said town The United States vs. Sutter. 865 to the place of beginning, being three hundred and thirty acres, more or less; to have and to hold the same to him, the said James Seivage, his heirs and assigns forever. And I, the said John A. Sutter, for myself and for my heirs, executors, and administrators, hereby covenant and agree to and with the said James Seivage, his heirs and assigns, that I have lawful authority to convey the abovedescribed premises, and that I will, and my heirs, executors, and administrators shall and will warrant and defend the same against the lawful claims and demands of all persons whomsoever. In witness whereof I have hereunto set my hand and seal this fourth day of May, A. D. 1850, J. A. SUTTER. [SEAL.] Signed, sealed, and delivered in presence ofGILBERT A. GRANT. HENRY A. SCHOOLCRAFT. STATE OF CALIFORNIA, County of Sutter, ss: 1335 On this nineteenth day of May, A. D. 1850, personally appeared before me, a notary public in and for said county of Sutter, Gilbert A. Grant, one of the witnesses to the foregoing instrument or conveyance, to me personally known to be the person whose name is subscribed to such conveyance as a witness thereto, who, being by me duly sworn, did depose and say that he resided in the town of Vernon, in said county; that he well knew John A. Sutter, the individual described in and who executed the said conveyance; that he was present and saw the said Sutter sign, seal, and deliver the same as and for his act and deed, and that the said Sutter then acknowledged that he executed the same freely and voluntarily and for the uses and purposes therein mentioned, and that thereupon he, the said Grant subscribed his name to such conveyance as a witness thereof. In witness whereof I hereunto subscribe my name and affix my, official seal. l[SEAL.] WILLIAM B. OLDS, Notary Public, Sutter county. 1336 Came into office for record June 28, 1850, 9 o'clock a. m., and recorded July lst, A. D. 1850, 30 30' o'cl'k p. m., in book "A," fol. 47 and 48. G. W. LAWRENCE, Deputy Recorder. STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxen, county recorder within and for the county and State aforesaid, do hereby certify that the above and foregoing is a full, true, and correct copy of an instrument of writing as the same now remains of record in my office, in book "A" of deeds at pages 61 and 62, (records transcribed.) [REC. CCLVIII, D. T. 1862] —55 866 The United States vs. Sutter. Witness my hand and official seal this 27th day of Feb'y, A. D. 1861. [SEAL] 1861. GC. E. WILCOXEN, Co. Recorder, Sutter County. By S. J. STABLER, Deputy Recorder. U. S. district court. THE UNITED STATES v. No. 319. JOHN A. SUTTER. ) 1337 And now at this day comes the United States, by W. H, Sharp, their attorney, and offer in evidence before Cutler McAllister, esq., U. S. commissioner, to whom was referred the taking of testimony herein under the orders heretofore entered of Aug. 19th and 27th, 1861, the annexed certified copy of an original deed (marked Exhibit Z) from John A. Sutter to James Sevige, dated May 4, 1850, being for three hundred and thirty acres of land, more or less, lying and being on the east bank of the Sacramento river, as described in said deed. The said deed being offered in evidence under the order of this court entered August 3, 1861. San Francisco, September 28, 1861. WM. H. SHARP, U. S. Att'y. By JOHN B. WILLIAMS, Assisting Dist. Att'y. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1338 Garrison, Exhibit No. 3. Know all men by these presents that I, Hiram H. Hackney, in consideration of the sum of six thousand dollars to me in hand paid by G. W. McCullough and Josiah Roop, the receipt whereof is hereby acknowledged, have bargained and sold, and do hereby sell and convey to the said McCullough and Roop, their heirs and assigns forever, an undivided half of that certain tract or parcel of land situate in the Sacramento district, Yuba county, California, bounded and described as follows, to wit: Beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, distance (10) ten feet, and one twentyfour inch sycamore tree, bearing north seventy degrees east, distance forty-nine feet, one mile below Plumas; thence down to the mouth of Bear creek, thence up Bear creek to a point which shall be on at direct line (magnetic meridian) east of the place of beginning; thence west (magnetic) to said point of beginning on Feather 1339 river, containing eighteen hundred and twenty-two and threequarter acres, more or less, which land I convey and quit The United States vs. Sutter. 867 claim to the said McCullough and Roop, their heirs and assigns forever. Witness my hand and seal this 9th day of January, 1851. H. H. HACKNEY. [SEAL.1 Signed, sealed, and sealed in presence ofALFRED LAWTON. STATE OF CALIFORNIA, County of Yuba. On this 10th day of January, A. D. 1851, personally appeared before me, Alfred Lawton, recorder in and for said county, H. H. Hackney, known to me to be the person described in and who executed the within conveyance, who acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. ALFRED LAWTON, Recorder. Recorded this 10th day of January, 1851, at 10 o'clock and 30 minutes a. m., at request of Josiah Roop and G. W. McCullough. ALFRED LAWTON, Recorder. STATE OF CALIFORNIA, County of Yuba, ss: 1340 1, W. H. Wickersham, recorder of Yuba county, do hereby certify that the foregoing is a full, true and correct copy of deed with the certificate of acknowledgment now of record in my office, in book No 2, pages 183 and 184, originally transcribed from old four, (4,) pages 157 and 158 of the records of Yuba county., In witness whereof I have hereunto set my hand and affixed my SEAL.] official seal this the thirty-first day of August, A. D. 1861. [^SEAhL.] ~ W. H. WICKERSHAM, Recorder. J. H. WICKERSHAM, Deputy. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk, Garrison, iExhibit No. 4. This indenture, made the 27th day of January, in the year one thousand eight hundred and fifty two. between Geo. W. McCullough, of Yuba county, California, of the first part, and John Sharp, of the same county and State, of the second part, witnesseth that the said party of the first part, for and in consideration of the sum 1341 of ten thousand dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has remised, released and quitclaimed, and by these presents does remise, release and quitclaim unto the said party of the second part, and to his heirs and assigns forever, the unaivided half of that certain piece or parcel of land lying and being in the county of Yuba, State of California, and bounded and described as follows: 868 The United States vr. Sutter. beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, distance ten feet, and one twenty-four inch sycamore tree, north seventy degrees east, distance forty-nine feet, one mile below "Plumas;" thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be upon a direct magnetic meridian east of the point of beginning; thence west (magnetic); to said point of beginning on Feather river, containing eighteen hundred and twenty-two and three quarters acres, more or less, together 1342 with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in or to the above described premises, and every part and parcel thereof, with the app-irtenances; to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof the said party of the first part has hereunto S ] set his hand and seal the day and year first above written. [SEAL. G. W. McCULLOUGH. [SEAL.] Sealed and delivered in the presence ofJOHN T. McCARTY, JOHN COOK. STATE OF CALIFORNIA, County of Yuba, ss: On this the 27th day January, A. D. 1852, personally came 1343 before me, clerk of said county, G. W. McCallough, to me known to be the person described in and who executed the foregoing instrument, and acknowledged the signing and sealing of the same to be his free act and deed, for the purposes therein named. Given under my hand and official seal, day and year above SEAL.] written. E. D. WHEELER, County Clerk. Recorded Jan'y 27th, 1852, at 4 o'clock p. m., at the request of Jno. Sharp. E. D. WHEELER, Recorder. By WM. K. SHERWOOD, Deputy. STATE OF CALIFORNIA, County of Yuba, ss: I, W. H. Wickersham, recorder of Yuba county, do hereby certify that the foregoing is a full, true and correct copy of. deed, with the certificate of acknowledgment, now of record in my office, in book No. 5 of deeds, on pages 265 and 266 of the records of Yuba county. The United States vs. Sutter. 869 In witness whereof I have hereunto set my hand and affixed my official seal of office this the thirty-first day of August, A. 1344 D. 1861. W. H. WICKERSHAM. Recorder. ySEAL.] By J. 11. WICKERSHAM, Deputy. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Dep. of Lewis Lillie, for Wm. R. Garrison. In the district court of the United States for the northern district of California. THE UNITED STATES ). o THE UNITED STATES In land cases, dist. court, No. 319.JoHN A. SUTTER. Land Cor., No. 92. Be it remembered, that on this 11th day of Sept., A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the 1345 United States for the districts of California to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States pursuant to the acts of Congress in that behalf, personally appeared Lewis Lillie, a witness produced in behalf of Wn. R. Garrison in the above-entitled cause now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: W. H. Sharp, esq., U. S. att'y, by J. B. Williams; L. Aldrich, for Wm. R. Garrison; E. Johnson, for Gelston. Examination continued pursuant to adjournment. Questions in behalf of Wm. R. Garrison. Question 1st. State your name, age, and place of residence? Ans. 1st. Lewis Lillie; I am over 21 years of age; I reside in San Francisco, 1346 Ques. 2nd. Look at the paper now shown you attached to your deposition, marked Exhibit, Lillie No. 1, and state if you have ever seen said exhibit before, and if you know where the original of that exhibit is? (Question objected to as incompetent, because William R. Garrison did not intervene for the protection of his interest within the time prescribed by the rules of the court.) Ans. 2nd. I have seen said exhibit before, but do not know where the original of said exhibit is. Quest. 3rd. State the circumstances under which you saw it, and where you have seen it, and whether or not you have made any search or inquiry for the original; and if you have, state the extent of that search and the result, and at whose request it was made? 870 Tlhe United Slates vs. Sutter. (Same objection also, because the original, if produced, 1347 would not be competent evidence if produced.) Ans. 3rd. I made diligent search for the original of this exhibit in Sacramento city, in Nicholas, Marysville, Yuba city, and at Hock Farm, of Capt. Sutter. I also enquired about it of Julius Wetzlar, who was formerly a partner of John A. Sutter, jr., of a Mr. Abbott, searcher of records of Sacramento; of S. C. Tompkins, formerly county recorder of Yuba county; of Judge Keiser, formerly justice of the peace and alcalde at Nicholas, who informed me that he had seen the original, but did not know where it now was; of Mr. Swazey, an attorney-at-law of Marysville; of John S. Reardon, deputy county recorder of Sutter county also of the deputy county recorder of Yuba county. I enquired of all these gentlemen without being successful in finding it. I found a record of it in book A, page 201, in the recorder's office for the county of Sutter, which book had, in 1849 and 1850, been used as a record book by Gilbert A. Grant, who was second alcalde of the town of Vernon. I made this 1348 search at the request of Judge Aldrich and William R. Garrison. Ques. 4th. Did you hear anything of Frederick Emory, who is named in said exhibit? If so, state where he is, if you know. Ans. 4th. From information, I learned that he was out of the State of California and residing at Leavenworth city, Kansas. This information was given to me by Judge Keiser, co. judge of Yuba county, and by Mr. Swazey, att'y-at-law, both of whom had known him intimately in 1849 and 1850; also, by Julius Wetzel, who had also been acquainted with him; also, by Capt. Sutter, who told me that Emory was out of the State. Quest. 5th. State whether or not the exhibit now shown you is a full, true, and correct copy of the original as it appears in book A of which you have spoken. Ans. 5th. It is; I compared it myself. 1349 Quest. 6th. State what the word is in the 14th line from the top of the first page of said exhibit, the 7th word in the said line, immediately before the word miles. Ans. 6th. It is the word " nine." LEWIS LILLIE. (The foregoing deposition objected to as incompetent, William R. Garrison, in whose behalf it is taken, not being a party on record.) Subscribed and sworn to before me this 11th September, A. D. 1861. [SEAL.] CUTLER McALLISTER, U. S. Comm'r. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk The United States vs. Suit r. 871 1350 ExMhbit, Lillie No. 1, attached to dep. of L. Lilie, for Wn. R. Garrison. Know all men by these presents that I, John A. Sutter, of Hock Farm, on Feather river, in Upper California, have constituted and appointed, and by these presents doth constitute and appoint, Frederick Emory my true and lawful attorney, for me and in my name to sell and convey all those tracts and parcels of land lying in Upper California, which are bounded and described as follows: beginning at a point on the north bank of Bear creek, nine miles from the junction of Bear creek with Feather river; thence down Bear creek to its junction with Feather river; thence up Feather river to a point one mile below its junction with Yuba river; thence in an easterly direction nine miles; thence southerly and at nearly parallel to Feather river as may be to the point of beginning on Bear creek; and I hereby authorize my said attorney to execute and deliver deeds to purchasers, conveying to them such portions as they may purchase, to receive the purchase money therefor, and give receipts and acquittances for the same; to sell the above land 1351 in such parts and parcels and upon such terms, with regard to the price, the time of payment thereof, and the security to be had and taken for the same, as in his sound discretion shall seem fit and proper, and to do and perform all other acts and things necessary for the full and valid execution of the powers by these presents granted, hereby ratifying and confirming all the acts of my said attorney done and performed in pursuance of the power hereby granted. Given under my hand and seal this fifteenth day of Jan'y, in the year of our Lord one thousand eight hundred and fifty. J. A. SUTTER. [L. s.] WitnessJ. V. PENDERGRAST. CHARLES G. ALEXANDER. STATE OF CALIFORNIA, County of Sutter, ss: I, C. E. Wilcoxon, county recorder in and for said county, do hereby certify that the above and foregoing is a full, true, and correct copy of the said power of attorney as the same now 1352 appears of record in the recorder's office of said county, in book A of mortgages, at page 201, supposed to be recorded on or about the sixteenth day of Jan'y, A. D. 1850. Witness my hand and official seal this 3rd day of September, A. D. 1861. [SEAL.] C. E. WILCOXON, County Recorder. By JNO. S. REARDON, Deputy Recorder. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 872 TlDe United States vs. Sutter. Dep. of Lloyd Tevis, for Wm. R. Garrison. In the district court of the United States for the northern district of California. THE UNITED STATES In land cases, district court, No. 319.-Land JOHNA. SUTTER. Corn., No. 92. 1353 Be it remembered, that on this 11 day of Sept'r, A. D. 1861, at San Francisco in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the district of California to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States pursuant to the acts of Congress in that behalf, personally appeared Lloyd Tevis, a witness produced in behalf of Win. R. Garrison in the above-entitled cause now pending in said court, under the acts of Congress to ascertain the private land claims in the State of California, who, being duly sworn, testified as follows: Present: W. H. Sharp, U. S. att'y, by J. B. Williams; L. Aldrich, for Wm. R. Garrison; E. Johnson, for Gelston. Questions in behalf of Wm. R. Garrison. Question 1st. Your name, age, and place of residence? 1354 Ans. 1st. Lloyd Tevis; I reside in San Francisco; am over 21 years of age. Quest. 2nd. Do you know Wm. R. Garrison? If so, state whether or not he has been absent from the State within the past 12 or 15 months, and the length of that absence; and whether or not the same was continuous. Ans. 2nd. I know Wm. R. Garrison. He left this State a little over one year ago, and remained absent about 10 months. He was absent during that time at New York and elsewhere. Quest. 3rd. Please look at the paper endorsed "deed from Lloyd Tevis to Wm. R. Garrison. Filed August 13th, 1861. W. H. Chevers, clerk"; and state, if you know, whether the purchase of the property therein mentioned was made by Garrison on the day that the deed bears date, or on any day anterior thereto; state fully the transaction out of which this deed arose. 1355 (Objected to as incompetent and irrelevant.) Ans. 3rd. The purchase of said property was made by Mr. Garrison more than 12 months prior to the date of said deed, and the deed should have been made at that time. I don't know of my own knowledge the transaction out of which the deed arose. I held the property in trust for Mr. Brumagin, who sold it to Mr. Garrison for a valuable consideration, as both parties informed me. Quest. 4th. Do you know anything of a power of attorney from John A. Sutter to Frederick Emory, dated on the 15th day of Jann The United States vs. Sutter. 873 ary, 1850, authorizing the conveyance of land? If so, state if you know where the original is, or if you have ever made any inquiry. Ans. 4th. I have seen a certified copy of such a power of attorney; have made repeated inquiries, and had searches made for the original, but have never been able to find it. I at one time owned the property belonging to Mr. Garrison, and was therefore in1356 terested in finding the original power of att'y. My inquiries were made of Wm. S. Mesick, at one time the agent of Capt. Sutter; of Col. Sanders, who was also at one time his agent; of S. C. Tompkins, searcher of records at Marysville, and others whose names I don't now remember. All these requiries were unsuccessful. [Foregoing deposition and deed referred to therein objected to as incompetent, because Wm. R. Garrison, in whose behalf it is taken, is not a party to the record.] LLOYD TEVIS. Subscribed and sworn to before me this 11th September, A. D, [SEAL.] 1861. ^[SEA'L.] CUTLER McALLISTER, U. S. Comm. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1357 Dep. of John A. Sutter, for Wnm. R. Garrison. In the district court of the United States for the northern district of California. THE UNITED STATES'THE UNITED STATES) In land cases.-District court No. 319.-Land V. ( cor. No. 92. JOHN A. SUTTER.. No. Be it remembered that on this 11th day of September, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared John A. Sutter, a witness produced in behalf of Wm. R. Garrison, in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: 1358 Present: W. H. Sharp, U. S. att'y, by J. B. Williams; L. Aldrich, for Win. R. Garrison; E. Johnson, for Gelston. Questions in behalf of Wm. R. Garrison. Question 1st. Your name, age, and place of residence? Ans. 1st. My name is John A. Sutter; I am over 21 years of age; I reside at Hock Farm, Sutter county. 874 The United States vs. Sutter. Quest. 2nd. Do you know Frederick Emory? If yea, state when you first became acquainted with him, and where you have known him. Ans. 2nd. I know Frederick Emory; I became acquainted with him here, in San Francisco, in the office of Mr. Peachy, in 1849. He has left this State. Quest. 3rd. Did said Emory ever act as your agent or att'y in fact, ill the sale of the land on the east side of Feather river and north of Bear creek, now in Yuba county, belonging to or claimed by you? Ans. 3rd. Yes, he did. First, I employed him as surveyor, 1359 and afterwards I executed a power of attorney to him, I think in 1850. Quest. 4th. Do you know where the said power of attorney is now? If not, look at the Exhibit Lillie No. 1, and say whether or not the same is a full, true, correct, and perfect copy of the said power of attorney. Ans. 4th. I don't know where the said power of att'y is now. Exhibit Lillie No. 1 is a true, full and correct copy of said power of attorney. Quest. 5th. State whether or not the said power of attorney was executed, signed, sealed, and delivered by you to the said Emory, at the time the same bears date, purports to have been executed and delivered as by the said copy appears. Ans 5th. It was. Quest. 6th. Do you know of a sale by Emory, as your agent or attorney in fact, under the said power of attorney, to H. H. 1360 Hackney and G. W. McCullough, on the 3rd day of April, 1850? Ans. 6. I know of such sale; a part of the money of said sale was paid to me, and afterwards I sued for the balance. Quest. 7th. State whether or not the said sale to Hackney and Mc Cullough was made with your knowledge and approval at the time the same was made. Ans. 7th. It was. Ques. 8th. Have you examined carefully the said copy of a power of attorney, shown to you to ascertain its correspondence with the original, executed by you as you have before stated? Ans. 8th. I have; I believe it to be correct. [The foregoing deposition objected to as incompetent; William R. Garrison, in whose behalf it is taken, not being a party on the record.] Quest. 9th. Was the said power of attorney in force on the 1361 3rd day of April, 1850, and was the said Emory, on that day, acting thereunder, as your agent, in the sale of the land? Ans. 9th. Yes; it was in force, and he was acting as such agent on that day. [Objected to as before.] J. A. SUTTER. Subscribed and sworn to before me this 11th day of September, A. D. 1861. [S -,EAL] CUTLER McALLISTER, [SEAL. ] U. S. Comm'r. Tlie United States vs. Suitr. 875 Examination adjourned until to-morrow, Thursday, Sept. 12, at 10 o'clock p. m. CUTLER McALLISTER, U. S. Comm'r. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Dep. of Mark Brumagine, for Wm. R. Garrison. 1362 In the district court of the United States for the northern district of California. THE UNITED STATES JoHN A/ SuTTER. \V.om.N o. JHA. STE.COrn. No. 92. Be it remembered that on this 12th day of September, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the Uuited States, pursuant to the acts of Congress in that behalf, personally appeared Mark Brumagine, a witness produced in behalf of Wm. R. Garrison in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, by J. B. Williams, for U. S.; E. 1363 Johnson, for Gelston; L. Aldrich, for Wm. R. Garrison; J. B. William, for Algiers. Questions in behalf of Wm. R. Garrison. Question 1st. Your name, age, and place of residence? Ans. 1st. Mark Brumagine; I am over 21 years of age; I reside in San Francisco; I am a banker by occupation. Quest. 2nd. State whether or not William R. Garrison purchased from you a tract of land in Yuba county, on the east side of the Feather river, north of Bear creek, formerly owned by Hackney and McCullough; if yea, when was that purchase made, and what was the consideration paid therefor? State fully the transaction between yourself and Mr. Garrison. Ans. 2nd. I do not know whether the tract I sold Mr. Garrison embraced the whole of the tract formerly owned by Hackney and McCullough; I sold him all that Mr. Tevis held in trust for me. I sold Mr. Garrison this tract something more than a year ago; the consideration was between 9 and 11,000 dollars. The transaction 1364 took in other property to the amount of some 50 or 60.000 dollars, and in that transaction this tract of land sold to Mr Garrison was valued at between 9 and 11,000 dollars. 876 The United States vs. Sutter. Quest. 3rd. State, if you know, whether or not Mr. Garrison has been in this State since the said purchase. Ans. 3rd. He left soon after he purchased this tract of me, and returned about two months, having been absent the whole of the intervening time. Quest. 4th. Where did you reside previous to your residence in San Francisco? Ans. 4th. I resided in Marysville, Yuba co., since August 7, 1850. Quest. 5th. Do you know Frederick Emory. If so, state when you first knew him, and where, and if at any time during the time you have known him he has acted as the agent of John A. Sutter in the sale of lands in Yuba county? Ans. 5th. I knew Frederick Emory first in the winter and 1365 spring of 1850; 1 knew him in Sacramento, Marysville, and in the town of Eliza, in Yuba county. In the spring of 1850 he had the reputation of acting, and did act, as general agent of John A. Sutter in that section of country in selling lands in Yuba county, and town lots in the town of Eliza. This was his business up there; the only business he was engaged in up there; that was tending to Sutter's business. Quest. 6th. Do you know whether the action of said Emory, in the sale of lands of which you have testified, took place with the knowledge and consent of John A. Sutter? Ans. 6th. I know it from general reputation. I met Gen'l Sutter frequently during the time, and I never heard him question Mr. Emory's acts. Quest. 7th. Do you know whether or not Emory, in the sale of lands for John A. Sutter in Yuba county, acted under a power of attorney from him. If so, state whether or not you have seen the 1366 power of attorney, and whether you have made any inquiries about the same, and the result of those inquiries. Ans. 7th. He had the general reputation of acting under a power of attorney, with full powers. I never saw the power of attorney. I understood, before I became interested, that this original power of attorney was lot. I don't think that I made much inquiry about it, as I trusted to Judge Field, who was my attorney. The general reputation in that country was, that this power of attorney was lost. I think that Judge Field was the first one that discovered the loss of it. He was acting as my attorney at that time, and the attorney of some other parties who had claims against this same property. The foregoing deposition objected to as hearsay and irrelevant; and for incompetency, because Wm. R. Garrison, in whose behalf it is taken, is not a party to the record. MARK BRUMAGIM. 1367 Subscribed and sworn to before me this 12 September, A. D. 1861. CUTLER McALLISTER, U. S. Comm. indorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk, T7e United States vs. Sutter. 877 Dep. of Wm. R. Garrison, for Wm. B. Garrison. In the district court of the United States for the northern district of California. THE UNITED STATES THE UNITE STATES in land cases.-Dist cr. court No. 319.-Land vJOHNA. SUTTER. com. No. 92. JoHN A. SUTTER. Be it remembered, that on this 12 day of September, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses, in civil causes depending in the courts of the United States, pur1368 suant to the acts of Congress in that behalf, personally appeared William R. Garrison, a witness produced in behalf of Wm. R. Garrison in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Examination continued pursuant to adjournment. Present: Wm. H. Sharp, by J. B. Williams, for U. S.; E. Johnson, for Gelston; L. Aldrich, for Wm. R. Garrison; J. B. Williams, for Algiers. Questions in behial' of William R. Garrison. Question 1st. Your name, age, and place of residence? Ans. 1st. William R. Garrison; I am 27 years of age; I reside in San Francisco. Quest. 2nd. Are you the person who has filed a petition in 1369 this case, asking, among other things, that certain lands in Yuba county, on the east side of the Feather river and north of Bear creek, shall be included in the survey of the grant to John A. Sutter, filed in the U. S. district court for the northern district of California, on the 17th day of July, 1861? Ans. 2nd. I am. Quest. 3rd. Have you ever seen, or have you ever made any search or inquiry for a power of attorney from John A. Sutter to Frederick Emory, dated on 15th day of January, 1850, for the sale of lands on the east side of Feather river, and north of Bear creek? If so, state the extent of that inquiry, and the result. Ans. 3rd. I have never seen said original power of attorney. I lhave made inquiry for it from various persons, and also have made diligent search for it, without success. I have inquired for it of Mr. Pascol, who was owner of the ranch for a time, or rather of 1370 the land claimed by me. He had a contract for the purchase of that tract, but never completed said purchase, and after 878 The United States vs. Sutter. ward surrendered the contract; he is now in possession as my tenant. I also made inquiry of Mr. Brumagim, the former owner of the property of Mr. Tevis, who was connected with it as trustee, and who, I think, once had a mortgage on it. I employed a competent person, who searched through the offices of the recorders of Sutter, Sacramento, and Yuba counties, for said original power of attorney, and to make inquiries for it of all persons who would be likely to know of it, which he did without finding it. The result of all the information that I obtained from the above sources was that the original power of attorney was not in existence, or could not be found, and that Mr. Frederick Emory was absent from the State. Quest. 4th. Did you ever hear or receive any notice of any 1371 monition in this case requiring you to appear and present your claim to the lands mentioned above? Ans. 4th. I had no actual knowledge of it, being absent from the State for nearly a year. I would have presented my claim had I know of any such monition. My attention was first called to it about a month ago, after the judge had made his decision on the case, when I took immediate steps to have my petition properly presented. [The foregoing deposition objected to as incompetent, because the witness is not testifying in behalf of a party to the record.] Cross-examination.- Questions for U. S. and intervenor Algier. Quest. 5th. Please state, if you recollect, the date on which you left this State, and the date of your return. Ans. 5th. I left California, I think, about the last of August, 1860, and returned about the last of June, 1861. 1372 Ques. 6th. Did you leave a general power of attorney with any person to attend to your business during your absence; and if so, with whom? Ans. 6th. I left a power of attorney with Mr. H. P. Wakelee, a druggist of this city. Quest. 7th. Did this power of attorney include the management of real estate, whether in litigation or not? Ans. 7th. I don't remember whether real estate in litigation was contemplated at all. He was a sort of an agent, in fact, with limited powers. Quest. 8th. Who was your attorney-at-law at the time you left the State? Ans. 8th. I had no attorney-at-law myself. The firm of which I had been a member, and which had wound up their business before this, had an attorney-at-law, who were the firm of Crockett & Crittenden. 1373 They had not charge of this business. Quest. 9th. Did you ever see the plat of the first survey of he land confirmed to Sutter, made by A. W. Von Schmidt under the irection of the U. S. surveyor general for Californ:a? The United States vs. Sutter. 879 Ans. 9th. I don't remember having seen it. Quest. 10th. Were you ever informed before your departure from the State that the survey made by Von Schmidt included the land you now claim under deed from Tevis? Ans. 10th. I heard of it, but can't remember whether it was before I left or after I came back. It strikes me it was after I came back. Quest. 11th. The mandate of the Supreme Court of the U. S. affirming the decree of the district court for 11 leagues only out of the 33 leagues claimed by Sutter, was filed in this court July 5th, 1859, and was then a matter of public notoriety; the purchase of the tract 1374 you claim under deed from Tevis is alleged to have been made about August, 1860, a short time before your departure from this State, and for a consideration between 9 and 11,000 dollars; the official survey by Von Schmidt was made in September and October, 1859. Did you take any steps between the time of your purchase and your departure from the State, or before you made the purchase, to ascertain whether or not the tract for which you paid the above sum was included in that survey? Ans. 11th. I did not; I purchased from Mr. Brumagim. Judge Field was his lawyer, and said it was all right; I had confidence in his judgment. About the time that I purchased I saw Judge Field about the matter. WM. R. GARRISON. Subscribed and sworn to before me this 12 September, A. D. 1861. CUTLER McALLISTER, [SEAL.] U. S. Comm'r. 1375 Examination adjourned until to-morrow, Friday, Se't'r 13, 1861, at 11 o'clock a. m. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Offer of evidence by Deft Garrison. District court of the United States for the northern district ot California. THE UNITED STATES vs. No. 319. JOHN A. SUTTER. ) William R. Garrison, one of the petitioners for intervention therein, and who has excepted to the survey of the grant to said John A. Sutter filed in this court on the 17th day of July, A. D. 1861, derives title to the land claimed in his petition through the following conveyances, which are hereby offered in evidence, viz: First. A deed from John A. Sutter to H. H. Hackney and G. 1376 W. McCullough, dated April 3rd, 1850, by Frederick Emory, his attorney in fact, conveying the land claimed by petitioner, deed marked " Garrison Exhibit No. 2." 880 The United States vs. Suttee. Second. A power of attorney from John A. Sutter to Frederick Emory, dated January 15th, 1850, authorizing the conveyance of the lands of the former on the north side of Bear creek, and on the east side of Feather river, embracing the land claimed by petitioner, under which the said convevance to Hackney and McCullough was made, marked "Exhibit Liilie No. 1." Third. Deed from H. H. Hackney to G. W. McCullough and Josiah Roop, dated January 9th, 1851, conveying an undivided half of the land claimed by petitioner, marked " Garrison Exhibit No. 3." Fourth. Deed from G. W. McCullough to John Sharp, dated January 27, 1852, conveying to the latter an undivided half of the 1377 land claimed by petitioner, marked "Garrison Exhibit No. 4." Fifth. Deed from Josiah Roop, by William B. Thornburgh, sheriff of Yuba county, dated December 22, 1857, to Lloyd Tevis, conveying an undivided fourth of the said land claimed, marked "Garrison Exhibit No. 5." Sixth. Deed from G. W. McCullough by William B. Thornburgh, sheriff of Yuba county, to Lloyd Tevis, dated December 22, 1857, conveying an undivided fourth part of the said land claimed, marked " Garrison Exhibit No. 6." Seventh. Deed from John Sharp and Catharine Sharp, his wife, to J. C. Haswell, dated January 9th, 1855, conveying to the said Haswell an undivided half of the tract claimed, marked "Garrison Exhibit No. 7." Eighth. Deed from John C. IHaswell and his wife, Mary Haswell, to Lloyd Tevis, dated April 29th, 1858, conveying to the latter the said land claimed, marked "Garrison Exhibit No. 8." 1378 Ninth. Deed from Lloyd Tevis to William R. Garrison, dated August 12, 1861, conveying to the latter the said land claimed by him, marked " Garrison Exhibit No. 9." W. R. GARRISON, By L. ALDRICH, His Attorney. The preceding offer of evidence being made by Wm. R. Garrison, att'y for Gelston objects to the introduction of "Garrisdn Exhibit No. 5" and No. 6, on the ground that the judgment roll of the case on which the sheriff's sale was made is not produced. Att'y for U. S. and Algiers objects to above evidence because Wm. R. Garrison is not a party of record to the suit. CUTLER McALLISTER, U. S. Comm. Att'y for Gelston objects to the introduction of';Garrison Exhibit No. 2," on the ground that it is not legally executed by John A. Sutter, and that it is not legally acknowledged by him, so as 1379 to entitle it to record, and that it has not a legal certificate attached thereto by the county recorder of Yuba county, showing the same to be a certified copy of any instrument entitled to record in his office. CUTLER McALLISTER, U. S. Comm. The United States vs. Satter. 881 Present when the above deeds were offered: L. Aldrich, for Brannan and Garrison; E. Johnson, for Gelston; J. B. Williams, for W. H. Sharp, U. S. att'y, and for Algiers. CUTLER McALLISTER, U. S. Comm'r. SAN FRANCISCO, Sept. 18, 1861. Examination adjourned until Saturday, Sept. 21, 1861, at 11 o'clock a. m. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1380 Petition of Wm. R. Garrison-offer of evidence. District court of the United States for the northern district of California. THE UNITED STATES VS. No. 319. JOHN A. SUTTER. William R. Garrison, one of the petitioners in said cause, in the the proceedings on the survey thereof, filed in this court on the 17th day of July, 1861, offers in support of his claim to the land described in his petition, the following additional papers, viz: First. Judgment roll from the district court of the tenth judicial district of the State of California, in and for the county of Yuba, in the case of H. H. Hackney vs. G. W. McCullough et als., marked' Garrison Exhibit No.." Second. Judgment roll from the dist. court of the tenth judicial district for the county of Yuba, in the case of H. H. Hackney vs. Isaac Roop, adm'r, et als., marked Garrison Exhibit No. 1381 Third. Decree, order of sale and return of sheriff in the case of Hiram H. Hackney vs. Isaac Roop, adm., &c., et als., from the district court of the tenth judicial district for the county of Yuba, marked " Garrison Exhibit No.." L. ALDRICH, Att'yfor Garrison. Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. Dep, of H. P. Wakelee, for Wm. R. Garrison. In the district court of the United States for the northern district of California. THE UNITED STATES) In land cases.-Dist. court No. 319.-Land Vs. S. corn,. No. 92. JOHN A..SUTTER., Be it remembered, that on the 13th day of September,. A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler 1382 McAllister, a commissioner duly appointed by the circuit court [REC. CCLVIII, D. T. 1862.]-56 882 The United States vs. Sutter. of the United States for the district of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses, in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared Henry P. Wakelee, a witness produced in behalf of Wm. R. Garrison in the above-entitled cause, now pending in said court,under the acts of Congress, to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, by J. B. Williams, for U. S.; L. Aldrich, for Wm. R. Garrison; J. B. Williams, for Algiers; E. Johnson, for Gelston. Questions in behalf of Win. B. Garrison. Question 1st. Your name, age, and place of residence? Ans. 1st. Henry P. Wakelee; I am over 21 years of age; I 1383 reside in San Francisco. Quest. 2nd. Did you act as the agent or attorney in fact of William R. Garrison during his absence from this State, from August, 1860, to his return about two months ago? Ans. 2nd. I did. Quest. 3rd. State whether or not, during the time you so acted, you had any knowledge of any proceeding whatever with regard to a grant made by the Mexican government to John A. Sutter, in the year 1841, to certain lands known as New Helvetia; and whether you had any knowledge of the publication of any monition or other notice therein from the district court of the United States for the northern district of California. Ans. 3rd. I had no knowledge whatever of any proceeding with regard to the grant to Sutter; and I had no knowledge of any monition or notice from said court. The first knowledge I had of anything of the kind was after 1384 Mr. Garrison's return, when I came down with him to this court to ascertain how the case stood. Quest. 4th. Did your authority as agent embrace the attention to any litigated interests or claims to land belonging to or claimed by Mr. Garrison? Ans. 4th. I think not. I had a power of attorney, which is recorded; it will show. It was a power of attorney to collect rents and lease houses. &c. Quest. 5th. Were you at any time, during Mr. Garrison's absence, aware that he had any interests in the proceedings in said case that required your attention? Ans. 5th. I was not. Had I been, I should have attended to it. Cross-examination.-Ques. in behalf of Gelston. Quest. 6th. Do I infer from what you say in your last answer, that Mr. Garrison did not inform you that he had any interest in 1385 this case that required your attention during his absence? Is that inference correct? The United States vs. Sutter. 883 Ans. 6th. Yes, sir; if I understand it right. He did not inform me that he had any interest in this suit. Question on behalf of Algier. Quest. 7th. Will you please produce the power of attorney referred to, in order that it may be copied, and the copy attached to this deposition as Exhibit Wakelee No. 1? Ans. 7th. I have not got it with me, but will produce it so that the commissioner can make a copy of it, and attach it to this deposition. [The foregoing deposition objected to as incompetent, because Wm. R. Garrison, in whose behalf it is taken, is not a party to the cause.] H. P. WAKELEE. Subscribed and sworn to before me this 13th day of September, A. D. 1861. [SEAL.] CUTLER McALLISTER, U. S. Corm'r. 1386 Examination adjourned until Monday, September 16th, 1861. Endorsed: Filed Oct. 9. 1861. W. H. CHEVERS, Clerk. Certified copy of judg't roll in case of Hackney vs. McCullough et al. District court, tenth judicial district. 1387 STATE OF CALIFORNIA, County of Yuba: Thepeople of the State of California to G V.WM. McCullough, William Moulton, John C. Haswell, greeting: You are hereby required to appear in an action commenced against you, as defendants, by Hiram H. Hackney, as plaintiff, in the district court of the tenth judicial district, in and for the county of Yuba, State of California, and answer the complaint therein, (which is on file with the clerk of said county,) within ten days after service upon you of this summons, (exclusive of the day of service,) if served in said county of Yuba, or twenty days if served out of said county, but in the tenth judicial district of the State of California, or forty days if served out of said district, but within the State. The said action is brought to obtain a judgment for the foreclosure of a certain indenture of mortgage bearing date on the ninth day of January, A. D. one thousand eight hundred and fifty-one, executed by 1388 the defendant G. W. McCullough to the plaintiff, and for the sale of the mortgaged premises, and the application of the proceeds of such sale to the payment of the amount due upon the promissory notes described in said mortgage. Together with such other and further relief in the premises as to 884 7The United States vs. Sutter. our said court mav seem right and proper; and if you fail to answer the said complaint, the said plaintiff will apply to the court for the relief demanded therein. Given under my hand and the seal of said court, this [SEAL.] fourth day of January, A. D. one thousand eight hundred and fifty-six. W. W. DOBBINS, Clerk of the District Court in andfor the County of Yuba, California. Endorsed: District court, Yuba co., Cal.-Hiram I. Hackney vs. G. W. McCullough and others. Summons. 1389 I certify that I received the within summons on the 9th day of January A. D. 1856, and that I personally served the defendant, G. W. McCullough, in the city of San Francisco, on the 1 2th day of January, 1856, at 10 o'clock a. m., the said summons, by delivering him a copy thereof attached to a certified copy of complaint in the within-named action, at San Francisco county, California, on the 12th day of January, A. D. 1856. DAVID SCANNELL, Sherif, By CHS. A. WHRIG, Deputy Sheriff. District court, tenth judicial district. STATE OF CALIFORNIA, County of Yuba, ss: The people of the State of California to G. W. McCullough, William Moulton, and John C. Ha.swell, greeting: You are hereby required to appear in an action commenced against you, as defendants, by Hiram H. Hackney, as plaintiff, in the district court of the tenth judicial district in and for the county 1390 of Yuba, State of California, and answer the complaint therein, (which is on file with the clerk of said county,) within ten days after service upon you of this summons, (exclusive of the day of service,) if served in said county of Yuba, or twenty days if served out of said county, but in. the tenth judicial district of the State of California, or forty days if served out of said district, but within the State. The said action is brought to obtain a judgment for the foreclosure of a certain indenture of mortgage bearing date on the ninth day of January, A. D. one thousand eight hundred and fifty-one, executed by the defendant, G. W. McCullough, to the plaintiff, and for the sale of the mortgaged premises, and the appli;cation of the proceeds of each sale to the payment of the amount due upon the promissory notes described in said mortgage; together with such other and further relief in the premises as to our said court may The United States vs. Sutter. 885 seem right and proper; and if you fail to answer the said 1391 complaint, the said plaintiff will apply to the court for the relief demanded therein. Given under my hand and the seal of our said court this [SEA. fourth day of January, A. D. 1856. W. W. DOBBINS, Clerk of the District Court in andfor the County of Yuba, California. On which appear the following endorsements.-District court, Yuba co., Cal., tenth judicial district.-Hiram H. Hackney vs. G. W. McCullough and others. Summons. District court tenth jud'l dist., county of Yuba. 1392 HIRAM H. HACKNEY, plaintiff, vs. L G. W. MCCULLOUGH, WILLIAM MOULTON, and JOHN C. HASWELL, defendants. J I admit due personal service upon me, one of the defendants in the above-entitled action, of the summons issued in said action, and of a certified copy of the complaint therein, this fourteenth day of January, A. D. 1856, at the city of Marysville, in Yuba county, Marysville. January 14th, 1856. G. W. McCULLOUGH. On which appear the following endorsements: District court, tenth jud'l dist., county of Yuba.-Hiram H. Hackney vs. G. W. McCullough and others. Summons and admission of service. Filed January 26th, 1856. LLOYD MAGRUDER, Clerk of the District Court, Yuba County. 1393 STATE OF CALIFORNIA, County of Yuba, ss: In the district court of the tenth judicial district. The people of the State of California to G. W. McCullough, William Moulton, and John C. Haswell, greeting: You are hereby required to appear in an action commenced against you, as defendants, by Hiram H. Hackney, as plaintiff, in the district court of the tenth judicial district, in and for the county of Yuba. State of California, and answer the complaint therein, (which is on 886 The United States vs. Sutter. file with the clerk of said county,) within ten days after service upon you of this summons, (exclusive of the day of service,) if served in said county of Yuba, or twenty days if served out of said county, but in the tenth judicial district of the State of California, or forty days if served out of said district, but within the State. The said action is brought to obtain a judgment for the foreclosure of a certain indenture of mortgage, bearing date on the ninth 1394 day of January, A. D. one thousand eight hundred and fiftyone, executed by the defendant G. W. McCullough, to the plaintiff, and for the sale of the mortgaged premises, and the application of the proceeds of such sale to the payment of the amount due upon the promissory notes described in said mortgage. Together with such other and further relief in the premises as to our said court may seem right and proper; and if you fail to answer the said complaint, the said plaintiff will apply to the court for the relief demanded therein. Given under my hand and the seal of said court this fourth day of SEAL.] January, A. D. one thousand eight hundred and fifty-six. ^[SEBL.]^ ~ W. W. DOBBINS, Clerk of the District Court in andfor the County of Yuba, California. Endorsed: I certify that I received the within summons on the fifth day of January, A. D. 1856, and that I personally served on 1395 the defendant William Moulton and James C. Haswellthe said summons, by delivering them a copy thereof attached to a certified copy of the complaint in the within, named action, at in Yuba county, California, on the seventh day of January, A. D. 1856. W. B. THORNBURGH, Sheriff, Per M. H. THORNBURGH, Deputy. Returned Jan'y 7th, 1856. LLOYD MAGRUDER, Clerk of District Court. District court, tenth judicial district, county of Yuba. HIRAM H. HACKNEY, plaintiff, 1 VS. G. W. MCCULLOUGH, WILLIAM MOULTON, and JOHN C. HASWELL, de- fendants. J The above-named plaintiff complains of the above-named de1396 fendants, and averts that heretofore. to wit, on the ninth day of January, A. D. one thousand eight hundred and fifty-one, the defendants G. W. McCullough made his four promissory notes in writing, bearing date on that day, and for a valuable consideration delivered the same to the plaintiff, who has ever since been and still is the owner and holder thereof, which four promissory notes are in the words and figures following, to wit: The United States vs. Sutter.:88 "Twelve months after date I promise to pay to H. H. Hackney, or order, the sum of five thousand dollars, for value received. Witness my hand and seal this 9th day of January, 1851. "$5,000 -0. G. W. McCULLOUGH." [SEAL.] "Twelve months after date I promise to pay to H. H. Hackney, or order, the sum of five thousand dollars, for value received. Witness my hand and seal this 9th day of January, 1851. "$5,000. G. W. McCULLOUGH." [SEAL.] "Twelve months after date I promise to pay to H. H. Hackney, or order, the sum of twenty-seven hundred and fifty-nine dollars and forty cents, for value received. Witness my hand and seal this 9th day of January, 1851.'$2,759 -4. GG. W. McCULLOUGH." [SEAL.] 1397 "$2,759 4-. Twelve months after date I promise to pay to H. H. Hackney, or order, the sum of twenty-seven hundred and fifty-nine dollars and forty cents, for value received. Witness my hand and seal this 9th day of January, 1851. "G. W. McCULLOUGH." [SEAL. And the said plaintiff further avers that the said defendant, G. W. McCullough, in order to secure the payment of the said four promissory notes according to the terms thereof, at the same time executed under his hand and seal, and delivered to the said plaintiff, an indenture of mortgage upon certain real property described therein, situated in Yuba county, bearing even date with said promissory notes, which said indenture of mortgage is in the words and figures following, to wit: Know all men by these presents that I, G. W. McCullough, of Yuba county, State of California, in consideration of certain sums, amounting in all to fifteen thousand five hundred and eighteen dollars and forty cents, ($15,518 40-100,) to me paid by H. H. 1398 Hackney, have this day bargained, sold, and and conveyed to said Hackney, his heirs and assigns, forever, three undivided fourths of that certain tract or parcel of land situate and being in the district of Sacramento, Yuba county, California, and bounded and described as follows, to wit: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, distance ten feet, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distance forty-nine feet, one mile below Plumas; thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be in a direct magnetic meridian east of the point of beginning; thence west magnetic to said point of beginning, on Feather river, containing eighteen hundred and twenty-two acres and three-fourths, more or less. Provided, and these presents are on this condition, that whereas I have this day executed to said Hackney my notes of hand of this 888 The United States vs. Sutter. date, payable to him, or order, in one year after date, for the 1399 several amounts of one of twenty-seven hundred and fifty-nine dollars and twenty cents, ($2,759 20-100;) another of the same amount, viz: twenty-seven hundred and fifty-nine dollars and twenty cents, ($2,759 20-100;) two other notes of five thousand dollars each, ($5,000 00-100,) amounting in all to the sum total of ($15,518 40-100,) fifteen thousand five hundred and eighteen dollars and forty cents: Now if I shall pay the said notes, according to the tenor and effect thereof, when the same becomes due, then these presents to be void; otherwise to remain in full force and virtue. Witness my hand and seal this 9th day of January, 1851. G. W. McCULLOUGH. [SEAL.] In presence ofALFRED LAWTON. And the plaintiff further avers that the said indenture of mortgage was on the tenth day of January, A. D. one thousand eight hundred and fifty-one, duly acknowledged, so as to entitle it to record, and the same was duly recorded in the office of the recorder of Yuba county, on the same day, in book of mortgages number two, 1400 on page one hundred and sixty; and of said indenture of mortgage the said plaintiff has ever since been and still is the owner and holder. And the said plaintiff further avers that the said two promissory notes of five thousand dollars each have been paid; that the other two promissory notes each for two thousand seven hundred and fiftynine 40-100 dollars have long since matured, and that there remains due and unpaid thereon the sum of two thousand five hundred and seventy-five dollars and twenty-five cents, ($2,575 25-100,) together with interest on said sum from the first day of January, A. D. one thousand eight hundred and fifty-six, which sum and interest are now due and owing by the said defendant, G. W. McCullough, upon said two promissory notes last above described, and payable to the plaintiff; that payment of the same has often been demanded of the said defendant, G. W. McCullough, but to pay the same 1401 or any part thereof the said defendant has hitherto wholly neglected and refused. And the said plaintiff further avers that the said indenture of mortgage has never been discharged, released, or satisfied, but is still a substing lien upon the real property described therein. And the said plaintiff further avers that the defendants, William Moulton and John C. Haswell, have, or claim to have, some interest in or claim upon the premises described in the said indenture of mortgage, which interest or claim is subsequent and subject to the said indenture of mortgage of the said defendant, G. W. McCullough, to the said plaintiff; and the said plaintiff makes no personal claim upon any of the said defendants, except the defendant G. W. McCullough. The plaintiff, therefor, prays the aid of this honorable court that judgment may be rendered for the sale of all the right, title, and in The United States vs. Sutter. 889 terest which the defendant, G. W. McCullough, possessed in 1402 and to the mortgaged premises aforesaid at the date of the said indenture of mortgage, namely, the ninth day of January, A. D. one thousand eight hundred and fifty-one, or which he has possessed at any time since, and for the amount due to the said plaintiff upon the two promissory notes last above described, namely, the sum of two thousand five hundred and seventy-five dollars and twenty-five cents, ($2,575 2-%,) with interest on that sum from January 1st, A. D. 1856, together with costs of this action, and for the application of the proceeds of the sale of the said premises to the payment of the said sum, interest, and costs; and that the defendants and all persons claiming under them subsequent to the commencement of this action, either as purchasers, mortgagees, incumbrancers, or otherwise, may be barred and foreclosed of all equity of redemp. tion in the said premises; and that the said defendant, G. W. McCullough, may be adjudged to pay any deficiency that may remain after the application of the proceeds of said sale to the pay1403 ment of the said sum, interest, and costs; and that the plaintiff have execution for such deficieicy, or that the said plaintiff may have such further or other relief in the premises as may be just. JANUARY 4th, 1856. STEPHEN J. FIELD, Pl'ff s Att'y. On which appear the following indorsements: District court, tenth jud'l district, county of Yuba. HIRAM H. HACKNEY vs. Complaint. G. W. MCCULLOUGH and others. ) Filed January 4th, 1856. W. W. DOBBINS, Clerk Dist. Court. 1404 State of California, district court of the tenth judicial district in and for Yuba county. HIRAM H. HACKNEY, plaintiff, vs. G. W. MCCULLOUGH, WM. MOULTON, and JOHN C. HASWELL. J Answer of the said defendant, William Moulton. The said defendant, Moulton, comes, and for answer to the complaint of said plaintiff says that it is true that he sets up a claim and interest in said premises, and alleges that he is the owner of one of the three undivided fourths mentioned in said complaint and mortgage; but denies that his claim thereto is subsequent and subject to said mortgage, as alleged in said complaint. $90 The United States vs. Sutter. And this defendant, for further answer, denies that said mortgage was properly, orderly executed, acknowledged or recorded, or exe cuted or acknowledged so as to entitle it to record. 1405 And, for further answer, this defendant says that the said notes and the said mortgage were given without any consideration, passing from said plaintiff to said defendant, McCullough, and that the same were made and executed in order to cover up the property of said defendant, McCullough, and for the use and benefit of said McCullough, and not because of any indebtedness by said McCullough to said plaintiff, or on account of any consideration passing thereof; and this defendant charges that the same were executed by said McCullough, and taken and accepted by said plaintiff, for the benefit and protection of said McCullough against his creditors, and upon the understanding that said Hackney was to have no interest therein. And this defendant further says that the same were, and are now, so held by said Hackney for the use and benefit of said McCullough, and not as the owner thereof. And this defendant, for further answer, says that after the 1406 execution of the said-notes and mortgages so, as aforesaid, made for the benefit of said McCullough, to wit, some time about the month of June, A. D. 1851, the said McCullough sold to this defendant one of the said undivided three-fourths of said lands so mortgaged, being an undivided one-fourth of the whole tract, for a valuable consideration, and thereafter, in the year A. D. 1852, gave to this defendant therefor a good and sufficient warrantee deed for such undivided one-fourth, which was duly executed, acknowledged, and recorded in the Yuba county recorder's office, as will more fully appear by reference to the same, whereby, and by reason whereof, this defendant, in equity and good conscience, took the said undivided onefourth of said lands, free and discharged of and from said mortgage, of and from any and all liens created thereby; and, therefore, this defendant prays that he have judgment denying the enforcement of said mortgage against the said undivided one-fourth of this defendant. 1407 And this defendant, for further answer, says that it is unequitable and unjust to enforce the collection of said notes and mortgage by the sale of the said undivided one-fourth so, as aforesaid, claimed by this defendant, because he says that the said lands described in said complaint were at the time of the execution of said mortgage subject and liable to a lien for the original purchase-money, upon the purchase thereof by said Hackney and McCullough from John A. Sutter, which amounted to the sum of about $2,300. That the said Hackney and McCullough purchased said premises ot said Sutter, and gave a note for the purchase-money thereof, and that before the payment of said purchase-money the said Hackney sold his undivided one-half interest therein to said McCullough and Josiah Roop, deceased; and that afterwards, in June, A. D. 1851, the said McCullough sold the one undivided fourth of said premises, being the one-fourth so purchased of said Hackney, to this defendant. And this defendant further says that after the sales afore1408 said, the said John A. Sutter prosecuted the said Hackney The United States vs. Sutter. 891 and McCullough upon said purchase-money in the district court of the county of Yuba for the recovery of the same, and recovered a judgment against said lands for the same, and for the sale thereof; and that thereunder the said lands and premises and the said undivided fourth of this defendant were and became liable for the said judgment, and were sold thereunder; whereby the said defendant, Moulton, was subjected to great hardship and inconvenience, and to suits on account thereof, and required to pay and discharge the said judgment, and to purchase and quiet his title to said undivided one-fourth of said lands on account thereof; wherefore, in consideration of the premises, the said defendant, Moulton, claims that the moneys so paid by him on account of said judgment for said purchase-money, and on account of the said sale thereunder, and on account of his trouble and expenses, with interest thereon, con1409 stitute an equitable off-set and counter claim against the said notes and mortgage, and interest thereon, and he therefore prays that the same may be inquired into, and that such relief in the premises may be granted as may seem meet and proper. And for further answer, the said defendant, Moulton, says that the said plaintiff ought not to have and recover the said amount due on said notes and mortgages, by a sale of this defendant's one undivided fourth interest therein, because, as he says, the same has, by operation of law, been released and discharged of and from said mortgage, and of and from the lien of said notes by the said plaintiff. And in this behalf this defendant charges as true that some time in the forepart of the year A. D. 1852 the said McCullough sold the undivided one-half of said lands, being the same at that time held by him, to one John Sharpe, now deceased. That afterwards, in the year 1854, the said Sharpe departed 1410 this life, leaving him surviving as his sole heir his son, John Sharp, jr., who inherited and became seized and possesed, according to law, of said undivided one-half so as aforesaid sold to his father, John Sharpe, deceased; whereby the said John Sharp, jr., became liable, so far as necessary to save the enforcements of said mortgage against said undivided one-half of said lands, to pay the same. And this defendant further charges that the said John Sharp, jr., being so liable, did, on or about the 6th day of December, 1855, make and enter into an arrangement with said plaintiff by which the said plaintiff was to release and discharge the said undivided one-half of said lands from the lien of said mortgage for and in consideration of the sum of four thousand dollars; and that in pursuance of such arrangement, and upon the payment of said four thousand dollars, the said plaintiff did, on the said 6th day of December, A. D. 1855, fully release and discharge the said undivided one-half of said 1411 premises so sold to said John Sharpe, deceased, of and from said mortgage, and all and every lien created thereby, by a release in writing, duly executed, signed, sealed, and delivered, and properly acknowledged and recorded in Yuba county recorder's office; whereby the said plaintiff forever debarred and forecluded him 892 The United States vs. Sutter. self from proceeding against the owners of the said one undivided half of said premises, and, in consequence thereof, wholly debarred and forecluded himself, and his heirs and assigns, from enforcing the said mortgage against the said undivided one-fourth interest of this defendant in said lands. Because, as this defendant alleges, should his portion of said lands be made to pay the said mortgage, he would have a right to call on the said John Sharpe, jr., or his grantees, for an equitable contribution to the same; by reason whereof the said John Sharpe, jr., and his grantees, would be wholly unprotected by said release and discharge from said plaintiff, unless the same 1412 operated to the benefit of this defendant, and therefore this defendant insists that in equity that his said one undivided fourth is not subject to said mortgage, and prays for judgment accordingly. And for further answer, this defendant says that the said purchase of said undivided one-half of said lands by said John Sharpe, deceased, of said mortgagor, McCullough, was made more than six months after this defendant had purchased of said mortgager, McCullough, his said one undivided fourth of said lands, and that the same was fully known to the said plaintiff in this suit. And this defendant further says, in this behalf, that his priority of purchase of said mortgagor of said undivided one-fourth of said land entitled him, in equity and in good conscience, to have the remaining portion of said mortgaged premises first applied and sold to satisfy the said lien and discharge the said mortgage debt. And this defendant further says 1413 that such remaining portion of said mortgaged premises, after deducting the said purchase of this defendant, has always been, and is now, worth sufficient to satisfy said mortgage debt, and that the same will now bring, and would at all times have brought, more than sufficient to satisfy the said mortgage debt. And this defendant further says that the said Moulton having a good right and equitable claim, that the said undivided one-half of said premises, so as aforesaid released and discharged of and from the said mortgage, should have been subject and liable for the enforcement of said mortgage before any sale could be made of his said undivided fourth, and the same being ample to satisfy such mortgage without disposing of his said portion of said premises; and the said plaintiff having by a good and sufficient release and discharge, as hereinbefore set forth, released and forever discharged said undivided one-half of said lands from the said mortgage and the lien thereof. Therefore this 1414 defendant defendant insists and claims that in law and equity the said plaintiff is forever debarred from enforcing the said notes and mortgage against his said undivided one-fourth of said lands mentioned in said complaint, and accordingly demands a judgment that the said plaintiff be barred from enforcing said mortgage against said undivided one-fourth of said defendant, Moulton, in said land, and that, as against the same, the said mortgage and lien is discharged. G. W. LEVEZY, Def' t Moulton's Att' y. The United States vs. Sutter. 893 On which appears the following endorsement: District court, tenth jud'l district, county of Yuba. Hiram H. Hackney vs. G. W. McCullough, William Moulton, and John C. Haswell. 1415 Answer of defendant, Wm. Moulton. G. W. LEVEZY, Def't Moulton's Att'y. Filed: January 17th, 1856. LLOYD MAGRUDER, Clerk District Court, Yuba County. HIRAM H. HACKNEY 1 G. W. McCULLOUGH, WILLIAM MOULTON, and JOHN C. HASWELL. J It appearing to the court that the defaults of the defendants, G. W. McCullough and John C. Haswell, has been duly entered in this cause, and that the defendant, William Moulton has filed an answer herein, on motion of the plaintiff's attorney, and the attorney of the defendants, William Moulton, in open court, consenting thereto, it is ordered that this cause be referred to Martin V. B.. Danby, esq., of the city of Marysville, to find and report the facts necessary to enable the court to proceed and determine the case, and that said 1416 referee report the testimony taken by him; and, further, that said referee make his report with all convenient speed. District court, tenth judicial district. STATE OF CALIFORNIA, County of Yuba, ss: I, Lloyd Magruder, clerk of the district court of the tenth judicial district in and for the county of Yuba, State of California, hereby certify that the above and foregoing is a full, true, correct copy of the origihal order in the aforesaid entitled cause, as the same now'remains of record and on file in the office of said court. [SEA L. Witness my hand, with the seal of our said court affixed, at USEaL.] the city of Marysville, the county seat of said county of 1417 Yuba, this twenty-sixth day of January, A. D. 1856. L. MAGRUDER, Clerk of the District Court, Per W. T. O'NEALE, Dept'y. Endorsed thus: District court. Hiram H. Hackney vs. G. W. McCullough, William Moulton, and John C. Haswell. Copy order appointing M. V. B. Danby, esq'r, referee. 894- The United States vs. Sutter. District court, tenth judicial district, county of Yuba. HIRAM H. HACKNEY VS. G. W. MCCULLOUGH, WILLIAM MOULTON, and JOHN C. HASWELL. J Notice is hereby given that I shall proceed with the reference in the above-entitled cause, and to the taking of the testimony of 1418 the parties in said cause on Wednesday evening, the thirtieth instant, at half past seven o'clock in the afternoon, at the office of Field & Smith in the city of Marysville. January 28th, 1856. M. V. B. DANBY, Referee. To STEPHEN J. FIELD, Plfs Att'y. To G. W. LEVEZY, Esq'r, Att'y for Def't Moulton. On which appears the following endorsement: District court, tenth judicial district, county of Yuba. Hiram H. Hackney vs. G. W. McCullough et al. We admit the personal service of a copy of the within notice. Jan'y 28th, 1856. C. H. BRYAN, Counsel. G. W. LEVEZY, Det tMoulton's Att'y. STEPHEN J. FIELD, Pff's Att'y. 1419 District court, tenth judicial district, county of Yuba. HIRAM H. HACKNEY, plaintiff, vs. G. W. MCCULLOUGH, WILLIAM MOULTON, and JOHN C. HASWELL, defendants. And now this day appears the plaintiff, by his att'y, S.. J. Field, esq., and the defendant, William Moulton, by his attorney, C. H. Bryan, esq., and the other defendants, whose default has been heretofore duly entered, although called, appear not; and thereupon the plaintiff moved that the report of the referee heretofore made and filed in this cause, and his findings of fact therein, be confirmed, which motion is by the court granted; and it is therefore ordered, adjudged, and decreed that the said report of the referee and his findings of fact be. and the same are hereby, in all respects confirmed. Thereupon this cause comes on to be heard upon the com1420 plaint and the answer of the defendant, Moulton, and the default of the other defendants, and the report of said referee, all of which being duly heard and considered, it is by the court now ordered adjudged, and decreed that one undivided fourth of that certain tract or parcel of land situate and lying in Yuba county, California, and bounded and described as follows, to wit: beginning The United States vs. Sutter. 895 at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, distant ten feet, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distant forty-nine feet, one mile below Plumas, and running thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be on a direct magnetic meridian east of the point of beginning; thence west (magnetic) to said point of beginning, on Feather river, containing eighteen hundred and twenty-two acres and three-fourths, more or less, and all 1421 the right, title, and interest which the defendants, G. W. McCullough, possessed in and to the same on the ninth day of January, A. D. one thousand eight hundred and fifty-one, or which he has possessed in and to the same at any time since, be sold by the sheriff of Yuba county, at auction, to the highest bidder for cash, in like manner and upon like notices as sales of real property under execution are required by law to be made, and that the proceeds arising from such sale be applied by the said sheriff, after deducting therefrom his fees, to the payment to the plaintiff of the sum of two thousand eight hundred and forty-seven dollars and seventyeight cents, with interest thereon from the date hereof, at the rate of ten per cent. a year, and to the costs of this action, taxed at one hundred and thirty-three 90-100 dollars. And it is further ordered, adjudged, and decreed that if any surplus monies remain after the application of the proceeds of said sale to the payment of said 1422 sum, interest and costs, the said sheriff bring the same forthwith into court, to abide its further order. And it is further ordered, adjudged, and decreed that the defendant, G. W. McCullough, pay to the plaintiff any deficiency which may remain due to him, after the application of the proceeds of said sale to the payments aforesaid; and that the said plaintiff have execution for any such deficiency against the property of said defendant, G. W. McCullough. WM. T. BARBOUR, Dist. Judge. Entered January 26th, A. D. 1857. Judgment debt................................. $2,847 78 Taxed cost.......................-.............. 133 90 Total judgment............................ $2,981 68 STATE OF CALIFORNIA. County of Yuba, ss: I, Lloyd Magruder, clerk of the district court in and for the 1423 county of Yuba, State of California, hereby certify that the above and foregoing is a full. true, and correct copy of the original judgment in the aforesaid entitled cause, as the same now remains of record and on file in the office of said court. Witness my hand, with the seal of our said court affixed, at the city 898 The United States vs. Sutter. of Marysville, the county seat of said county of Yuba, this [SEAL.] 26th day of January, A. D. 1857. LLOYD MAGRUDER, Clerk of the Court aforesaid, Per S. E. SCOTT, Dep. On which appear the following indorsement: District court, 10th judicial district, State of California, county of Yuba. Hiram II. Hackney vs. G. W. McCullough and others. Certified copy of judgmentjudment roll. Filed Jan'y 26th, 1857. 1424 LLOYD MAGRUDER, Clerk, Per S. E. SCOTT, Dep. STATE OF CALIFORNIA, County of Yuba, ss: I, William T. O'Neale, clerk of the district court in and for the county of Yuba, State of California, hereby certify that the above and foregoing is a full, true, and correct copy of the original judgment roll in the aforesaid entitled cause, as the same now remains of record and on file in the office of the said court. Witness my hand, with the seal of our said court affixed, at the city [SEAL. of Marysville, the county seat of said county, this 17 day of Sept'r, A. D. 1861. WM, T. O'NEALE, Clerk of the Court aforesaid. Endorsed: Filed October 9, 1861. W. H, CHEVERS, Clerk. 1425 Ce9rtified copy ofjudg t roll in case of Hackney vs. Boop, &c. District court, tenth judicial district. STATE OF CALIFORNIA, County of Yuba, ss: The people of the State of California to Isaac Roop, administrator of the state of Josiah Roop, deceased, William Moulton, and John C. Haswell, greeting: You are hereby required to appear in an action commenced against you as defendants, by Hirarh H. Hackney as plaintiff, in the district court of the tenth judicial district in and for the county of Yuba, State of California, and answer the complaint therein, (which is on file with the clerk of said county,) within ten days after service upon you of this summons, (exclusive of the day of service,) if served in said county of Yuba, or twenty days if served out of said county, but in the tenth judicial district of the State of California, or forty days if served out of said district, but within the State. The said action is brought to obtain a judgment for the foreclosure of a 1426 certain indenture of mortgage, bearing date on the 9th day of January, A. D. 1851, executed by one Josiah Roop, since de The United States vs. Sutter. 897 ceased, to the plaintiff, and for the sale of the mortgaged premises described therein, and the application of the proceeds of such sale to the payment of the amount due on the promissory note described in said mortgage, together with such other and further relief in the premises as to our said court may seem right and proper; and if you fail to answer the said complaint, the said plaintiff will apply to the court for the relief demanded. Given under my hand and the seal of said court this fourth day of January, A. D. 1856. [SEAL.] W.W. DOBBINS, Clerk of the District Court in andfor the County of Yuba, California, Per M. D. DOBBINS, Deputy Clerk. Endorsed: District court, Yuba co., Cal. Hiram H. Hackney vs. Isaac Roop, administrator, and others. 1427 Summons. I hereby certify that I received the within summons on the 16th day of January, at 5 p. m., A. D. 1856, and that I personally served the same on the defendant, Isaac Roop, by delivering to him a copy thereof, attached to a certified copy of the complaint in the within named action, at Farrington Saw-mill, in Shasta county, California, on the 16th day of January, A. D. 1856. JOHN R. DRUBILBIS, Sheriff of Yuba Co. By J. S. FOLLANSBER, Dep' ty. January 31, 1856. LLOYD MAGRUDER, Clerk District Court. Sheriff fees, serving summons, &c......................... $2 00 M ileage............................................. 3 00 $5 00 District court, tenth judicial district. STATE OF CALIFORNIA, County of Yuba, ss: 1428 The people of the State of California to Isaac Roop, administrator of the estate of Josiah Roop, deceased, William Moulton, and John C. Haswell, greeting: You are hereby required to appear in an action commenced against you as defendants, by Hiram H. Hackney as plaintiff, in the district court of the tenth judicial district in and for the county of Yuba State of California, and answer the complaint therein, (which is c' REC. CCLVII, D. T. 1862.]-58.] 893 The United States vs. Sutter. file with the clerk of said county.) within ten days after service upon you of this summons (exclusive of the day of service,) if served in said county of Yuba, or twenty days if served out of said county, but in the tenth judicial district of the State of California, or forty days if served out of said district, but within the State. The said action is brought to obtain a judgment for the foreclosure of a certain indenture of mortgage, bearing date on the 9th day of January, A. D. 1851, executed by one Josiah Roop, since deceased, to the 1429 plaintiff, and for the sale of the mortgaged premises described therein, and the application of the proceeds of such sale to the payment of the amount due on the promissory note described in said mortgage, together with such other and further relief in the premises as to our said court may seem right and proper; and if you fail to answer the said complaint, the said plaintiff will apply to the court for the relief demanded therein. [SEAL.] Given under my hand and the seal of said court this fourth [ day of January, A. D. 1856. W. W. DOBBINS, Clerk of the District Court in and for the County of Yuba, California, Pr. M. D. DOBBINS, Deputy Clerk. Endorsed: District court, Yuba co., Cal. Hiram H. Hackney vs. Isaac Roop, administrator, and others. 1430 Summons. I hereby certify that I received the within summons on the 7th day of January, A. D. 1856, and that I personally served the same on the defendants, William Moulton and John C. Haswell, the said summons, by delivering them a copy thereof attached to a certified copy of complaint in the within-named action-at the first one named at Marysville, Yuba county, California, and the last one in Yuba county on the 7th day of January, A. D. 1856. W. B. THORNBURGI, Sheriff of Yuba Co.. Per M. N. THORNBURGH, Dep'ty. Returned into court this seventh day of January, 1856. LLOYD MAGRUDER, Clerk of the District Court, Yuba County. District court, tenth judicial district, county of Yuba. 1431 HIRAM H. HACKNEY, plaintiff, ] vs. ISAAC RooP, administrator of the estate of JOSIAH ROOP, deceased, WILLIAM MOULTON, and JOHN C. HASWELL, defendants. The above-named plaintiff complains of the above-named defendants, and avers that heretofore, to wit, on the ninth day of January, The United States vs. Sutter. 899 A. D. one thousand eight hundred and fifty-one, Josiah Roop, since deceased, made his promissory note in writing, bearing date on that day, and for a valuable consideration delivered the same to the plaintiff, who has ever since been and still is the owner and holder thereof; whereby, for value received, the said Josiah Roop promised to pay, one year after date, to the said plaintiff, or to his order, sixteen hundred dollars, which said promissory note is in the words and figures following, to wit: $1,600 00. MARYSVILLE, CALIFORNIA. One year after date I promise to pay to Hiram H. Hackney, 1432 or order, sixteen hundred dollars, for value received. Witness my hand this 9th day of January, 1851. JOSIAH ROOP. And the said plaintiff further avers that the said Josiah Roop, in order to secure the payment of the said promissory note according to the terms thereof, at the same time executed under his hand and seal an indenture of mortgage upon certain real property described therein, situated in Yuba county, bearing date on the said ninth day of January, A. D. one thousand eight hundred and fifty-one, and delivered the same to the plaintiff, who has ever since been, and now is, the owner and holder thereof, and which indenture of mortgage is in the words and figures following, to wit: Know all men by these presents that I, Josiah Roop, of Yuba county, in the State of California, in consideration of sixteen hundred dollars ($1,600) to me paid by Hiram H. Hackney, have this day bargained, sold, and conveyed to said Hackney, his heirs alnd 1433 assigns forever, an undivided fourth of that certain tract or parcel of land situated in the district of Sacramento, Yuba county, California, and bounded and described as follows, to wit: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, distance ten feet, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distance forty-nine feet, one mile below Plumas; thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be in a direct magnetic meridian east of the point of beginning; thence west (magnetic) to said point of beginning on Feather river, containing eighteen hundred and twenty-two and three-fourths acres, more or less. Provided, and these presents are on this condition, that whereas I have this day executed to said Hackney my note of hand of this date, payable to him, or order, in one year from date, for sixteen hundred dollars: Now, if I shall pay the said note according to the tenor and effect thereof when the same becomes due, then 1434 these presents to be void, otherwise in full force and virtue. Witness my hand seal this 9th day of January, 1851. JOSIAH ROOP. [SEAL.] Attest in presence ofALFRED LAWTON. 900 The United States vs. Sutter. And the said plaintiff further avers that the said indenture of mortgage was duly acknowledged, so as to entitle it to record, on the tenth day of January, A. D. one thousand eight hundred and fifty-one, and was on the same day recorded in the office of the recorder of Yuba county, in book of mortgages number two, on page one hundred and fifty-nine. And the said plaintiff further avers that the said promissory note was due and payable on the twelfth day of January, one thousand eight hundred and fifty-two, but that no part of the same was then paid, nor has any part thereof ever been paid since; and the 1435 entire principal sum thereof, together with interest thereon from its maturity, namely, January 12, A. D. 1852, at the rate of two per cent. a year, are due thereon and payable to the plaintiff; that the payment of the same was often demanded of the said Josiah Roop in his lifetime, and since his death has often been demanded of the defendant, Isaac Roop, administrator of the estate of the said Josiah Roop, appointed as hereinafter mentioned. And the said plaintiff further avers that the said indenture of mortgage has never been released, discharged, or satisfied, but is still a subsisting lien upon the real property described therein. And the said plaintiff further avers that the said Josiah Roop died intestate some time in the year A. D. 1852, and was at the time of his death a resident of Shasta county, and letters of administration upon his estate were duly issued by the probate court of Shasta county to the defendant, Isaac Roop, who received such let1436 ters, qualified as administrator, and duly answered the administration of the said estate. And the said plaintiff further avers that the defendants, William Moulton and John C. Haswell, have, or claim to have, some interest in or claim upon the premises described in the said indenture of mortgage, which said interest or claim is subsequent and subject to the said plaintiff, and the said plaintiff makes no personal claim in this action against any of the defendants. The plaintiff therefor prays the judgment and decree of this honorable court for the sale of the said mortgaged premises, and all the right, title, and interest which the said Josiah Roop possessed in and to the same at the date of the said indenture of mortgage, namely, January ninth, A. D. one thousand eight hundred and fifty-one, and for the application of the proceeds of said sale to the payment of the principal sum due and owing on said promissory note of Josiah Roop, namely, sixteen hundred dollars, and interest thereon. 1437 at the rate of ten per cent. a year from the twelfth day of January, A. D. 1852, and the costs of this action; and that the defendants and all persons claiming under them subsequent to the commencement of this action, either as purchasers, mortgagees, incumbrancers, or otherwise, may be barred and foreclosed of all equity of redemption in the said mortgaged premises; or that the said plaintiff, by the judgment of this court, may have such other or further relief in the premises as may be just. Miarysville, January 4th, 1856. STEPHEN J. FIELD, P/if's Att'y. The United States vs. Satter. 901 On which appear the following endorsements: District court, tenth judicial district, county of Yuba. Hiram H. Hackney vs. Isaac Roop, administrator, or others complaint. Filed January 4th, 1856. W. W. DOBBINS, Clerk Dist. Court. 1438 State of California, district court of the tenth judicial district in and for Yuba county. HIRAM H. HACKNEY, plaintiff, ] vs. ISAAc ROOP, administrator of the estate of JOSIAH Roo,, deceased, WILLIAM MOULTON et al. Ansiwer of William Moulton. The said defendant, William Moulton, comes, and, for answer to said complaint, says that the said note and mortgage mentioned in said complaint were given to said plaintiff for the purchase-money of said undivided fourth of said lands and premises from said Hackney to said Josiah Roop; and the said defendant, Moulton, further says that during the year A. D. 1851 he purchased the said undivided fourth of said lands and premises of said Josiah Roop, and 1439 took a bond for a deed of conveyance thereof, as will more fully appear by reference to the same. And the said defendant, Moulton, further says it is unequitable and unjust to enforce the collection of said note and mortgage by the sale of said premises or otherwise, because he says that the said lands described in said complaint at the time of the sale to said Roop and by said Roop to Moulton, was subject and liable to a lien for the original purchase-money upon the purchase of said premises by said Hackney, and one G. W. McCullough, from John A. Sutter, which amounted to the sum of about $2,300. That said Hackney and McCullough purchased said premises of said Sutter, and gave a note for the purchase-money thereof, and that before the payment of.such purchase-money, the said Hackney sold his undivided one-half of the whole of said land described in said complaint to said McCullough and said Josiah Roop. Whereby the said Josiah Roop became possessed of said undivided one-fourth of said lands and premises, and this defendant further says that after the said sales, as afore1440 said, the said John A. Sutter prosecuted the said McCullough and Hackney upon said purchase-money, in the district court of the county of Yuba, for said purchase-money, and recovered a judgment against said lands for the same and for the sale thereof, and that thereunder the said lands and premises were and became liable for the amount of such judgment, and were sold thereunder. Whereby the said defendant, Moulton, was subjected to great hardship and inconveniences, and to suits on account thereof and required to pay and discharge the said judgment, and to purchase and quiet his title to said undivided fourth interest on account thereof. Wherefore, in 902 The United States vs. Sutter. consideration of the premises, the said defendant, Moulton, claims that the moneys so paid by him on account of said judgment for said purchase-money, and on account of the sale thereunder, and on account of his trouble and expenses, constitute an equitable off-set and counter claim against the said note and interest thereon here 1441 sued upon; and therefore prays that the same may be inquired into, and that such relief in the premises may be granted as may seem meet and proper. And for further answer, this defendant denies that at the time of his purchase of said Roop that he had any knowledge that said note sued upon was given for the purchase-money by said Roop from said Iackney; and the said defendant, Moulton, further denies that the mortgage set forth in said complaint was never executed or acknowledged by said Josiah Roop, or duly recorded, as set forth in said complaint. And the said defendant, Moulton, further denies that the claim of this defendant is subsequent or subject to the said claim of plaintiff upon said land and premises. And this defendant, for further answer, says that it is true, as alleged in the said complaint, that said Josiah Roop died in the year A. D. 1852, and that the said Isaac Roop was appointed administrator to his estate, and that administration was had thereupon; 1442 but this defendant charges to be true that the said plaintiff never presented his claim upon said note or mortgage to said administrator for allowance or judgment, or to the said probate court of Shasta county, as required by law, and that therefore lie cannot have and maintaintain his action aforesaid. And this defendant, for further answer, says that the said administrator, during the year 1852 and 1853, caused notice to be given Mid published according to law, under the direction of the probate court of said Shasta county, notifying all persons having claims against the estate of said Josiah Roop, deceased, to exhibit the same, with the necessary vouchers, to said administrator within ten months after the date and first publication of such notice; and this defendant says, that although more than two years have elapsed since the date and publication of said notice, yet the said plaintiff has ilever yet presented his said claim upon said note and mortgage to said 1443 administrator, or to said probate court; therefore this defendant charges that by reason thereof the said claim is forever barred, and that the said plaintiff cannot have a recovery in this action therefor. Wherefore, in consideration of the premises, this defendant claims judgment in this action on behalf of said estate that the said note and mortgage shall not be foreclosed against the said property, and that the plaintiff's action be dismissed with costs. G. N. LEVEZY, Def't Moulton's Att' y. On which appear the following endorsements: District court, tenth jud'l district county of Yuba. Hiram H. Hacney vs. Isaac The United States vs. Sutter. 903 Roop, administrator, &c., William Moulton et al. Answer of defendant, William Moulton. 1844 G. N, LEVEZY, Def't Moulton's Att'y. Filed: Jan'y 17th, 1856. LLOYD MAGRUDER, Clerk District Court, Yuba County. District court, tenth judicial district, county of Yuba. HIRAH H. HACKNEY, 1 vS. ISAAC RooP, administrator of the estate of JOSIAH ROOP, deceased, WILLIAM MOULTON and JOHN C. HASWELL. J It appearing by the certificate of the sheriff of Shasta county, endorsed on the summons issued in this cause, now returned and on file, that the said summons, together with a certified copy of the complaint, were duly served on the defendant, Isaac Roop, administrator, &c., on the sixteenth day of January, one thousand eight hundred and fifty-six, and no answer to said complaint by the defendant, Isaac Roop, administrator, &c., having been filed with the clerk of 1445 this court, and the time specified in said summons for that purpose having elapsed, on application of the plaintiff, the default of the said defendant, Isaac Roop, administrator of the esstate of Josiah Roop, deceased, is hereby entered. Dated Marysville, Yuba county, March 28th, one thousand eight hundred and fifty-six. L. MAGRUDER, Clerk of the District Court in and for the County of Yuba, Per WM. T. O'NEALE, Dep. On which appear the following endorsement: District court, tenth jud'l district, county of Yuba. Hiram H. Hackney vs. Isaac Roop, adm'r, &c., William Moulton, and John C. Haswell. Default. Filed March 28th, A. D. 1856. L. MAGRUDER, Clerk Dist. Court, Per WM. T. O'NEALE, Dep. 904 T.e United States vs. Sutter. 1446 STATE OF CALIFORNIA, County of Yuba: District court, tenth judicial district, November term, A. n. 1856. HIRAM H. HACKNEY, plaintiff, vs. ISAAC ROOP, administrator of the estate - of JOSIAH ROOP, deceased, WILLIAM MOULTON, and JOHN C. HASWELL. J The default of the defendant, Isaac Roop, administrator of the estate of Josiah Roop, deceased, and John C. Haswell, having been heretofore duly entered, and the cause being at issue as to the defendant, Moulton, and being called on the calendar, the plaintiff moves for judgment pursuant to the prayer of the complaint, and produces to the court his proofs and evidence, which being duly considered, the court finds the following facts: 1st. That Josiah Roop, now deceased, on the ninth day of 1447 January, 1851, made his promissory note in writing, bearing date on that day, and delivered the same to the plaintiff, whereby, for value received, he promised to pay, one year after the date thereof, to the plaintiff, or order, the sum of sixteen hundred dollars, a copy of which note is set forth in the complaint. 2nd. That the said Josiah Roop, to secure the payment of the said promissory note according to the terms thereof, at the same time executed under his hand and seal, and delivered to the plaintiff, an indenture of mortgage upon certain real property described therein, situated in the county of Yuba, which indenture of mortgage is set forth in the complaint, and was duly acknowledged and was recorded in the office of the recorder of Yuba county, in book of mortgages number two, on page 159, January 10th, 1851. Third. That the said Josiah Roop died intestate some time in 1852, and was, at the time of his death, a resident of Shasta county, and letters of administration upon his estate were duly issued by 1448 the probate court of Shasta county to the defendant, Isaac Roop, who received such letters, qualified as administrator, and duly assumed the administration of the said estate. Fourth. That the said promissory note was due and payable on the twelfth day of January, one thousand eight hundred and fifty-two, but that no part of the same was then paid, nor has any part thereof ever been paid since, and the entire principal sum thereof, together with interest thereon from its maturity, namely, January 12, A. D. 1852, at the rate of ten per cent. a year, are due thereon and payable to the plaintiff. That the payment of the same was often demanded of the said Josiah Roop in his lifetime, and since his death has often been demanded of the defendant, Isaac Roop, administrator of the estate of the said Josiah Roop, which principal sum and interest amounts, to this day, November 19th, A. D. 1856, to the sum of two thousand three hundred and seventy-five dollars and 1449 ninety-six cents; and that said indenture of mortgage has The United States vs. Sutter. 905 never been released, discharged, or satisfied, but is still a subsisting lien upon the real property described therein. Fifth. That the defendants, William Moulton and John C. Haswell, have or claim to have some interest in or lien upon the said morgaged premises, but if they have any it is subsequent to the lien of said mortgage of the plaintiff. And from the said facts, the conclusion of law is that the plaintiff is entitled to judgment pursuant to the prayer of his said complaint. It is therefore ordered, adjudged, and decreed that the undivided fourth of that certain tract or parcel of land situated in Yuba county, and which is described and bounded as follows, to wit: beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree, bearing north eighty-six degrees west, 1450 distant ten part, and one twenty-four-inch sycamore tree, bearing north seventy degrees east, distant forty-nine feet. one mile below Plumas; thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be on a direct magnetic meridian east of the point of beginning; thence west (magnetic) to said point of beginning on Feather river, containing eighteen hundred and twentytwo and three-fourths acres, more or less; and all the right, title, and interest which the said Josiah Roop possessed at the date of the said indenture of morgage, namely, January 9, 1851, or which he possessed at any time afterwards, be sold by the sheriff of Yuba county, at public auction, to the highest bidder for cash, in like manner and upon notice as sales of real property under execution are required by law to be made by the said sheriff, and that the proceeds arising from such sale be applied by the said sheriff, after deducting therefrom his fees, to the payment of the principal and interest due and owing on said 1451 promissory note and mortgage, viz, the sum of two thousand three hundred and seventy-five dollars and ninety-six cents, with interest thereon at the rate of ten per cent. per annum from the date hereof until paid, and to the payment of the cost of this action taxed at seventy-three dollars and fifty-five cents. And it is further ordered, adjudged, and decreed that if any surplus monies remain of the proceeds of the sale of said mortgaged premises, after the payment of the said sum, interest, and costs, the said sheriff bring such surplus monies into court to abide the further order of the court. WM. T. BARBOUR, Dist. Judge. Judgment dubt............................. 2,375 96 Taxed costs....................................... 73 55 $2,449 51 Rendered November 19th, A. D. 1856. Entered November 21st, A. D. 1856. 906 The United States vs. Sutter STATE OF CALIFORNIA, County of Yuba, ss: 1452 I, Lloyd Magruder, clerk of the district court in and for the county of Yuba, State of California, hereby certify that theabove and foregoing is a full, true, and correct copy of the original judgment in the aforesaid entitled cause, as the same now remains of record and on file in the office of said court. Witness my hand, with the seal of our said court affixed, at the city [SEAL] of Marysville, the county seat of said county of Yuba, this SEaL.] 21st day of November, A. D. 1856. LLOYD MAGRUDER, Clerk of the Court aforesaid, Per S. E. SCOTT, Dep'ty. Endorsed: District court, Yuba county. Hiram H. Hacknm Isaac Roop, administ., et al. Judgment roll. Filed Nov. 21st, 18 _, LLOYD MAGRUDER, Cl'k, Per. S. E. SCOTT, Dep. 1453 STATE OF CALIFORNIA, County of Yuba, ss: I, William T. O'Neale, clerk of the district court in and for the county of Yuba, State of California, hereby certify that the above and foregoing is a full, true, and correct copy of the original judgment roll in the aforesaid entitled cause, as the same remains of record and on file in the office of the said court. Witness my hand, with the seal of our said court affixed, at the city [SEAL] of Marysville, the county seat of said county, this thirteenth day of September, A. D. 1861. W. T. O'NEALE, Clerk of the Court aforesaid. Endorsed: Filed Oct. 9, 1862. W. H. CHEVERS, Clerk. 1454 Certified copy of sheriff's return, &c., in case of Hackney us. Boop, &c. I certify that, by virtue of the annexed certified copy of judgment and decree, delivered to me on the 7th day of November, A. D. 1857, I did, in pursuance thereof, on the 30th day of November, A. D. 1857, between the hours of ten and twelve in the forenoon of that day, in front of the court-house in the city of Marysville, after due and legal thereof of the time and place by publication in a newspaper for more than twenty days, and posting notices in three public places of the township, and at the place of sale of the within-described premises, sell at public auction, according to law, to Lloyd Tevis the premises described in the annexed judgment and decree, as therein ordered, The United States vs. Sutter. 907 for the sum of five hundred dollars, which was the whole price paid for the same, he being the best and highest bidder therefor. Property sold for $500 00. Sheriff's fees: Advertisement.-................. $48 00 Commission............................ 20 00 Dibursements....................... 26 00 $94 00 1455 Paid plaintiff........................... 406 00 500 00 W. B. THORNBtTRGH, Sheriff Yuba Co., Per L. McGOWN, Under S'ff. STATE OF CALIFORNIA, County of Yuba, ss: District court, tenth judicial district, November term, A. D. 1856. HIRAM H. HACKNEY, plaintiff, 1 vs. ISAAC RooP, administrator of the estate of Josiah Roop, deceased, WILLIAM MOULTON, and JOHN C. HASWELL. J The default of the defendant Isaac Roop, administrator of the estate of Josiah Roop, deceased, and John C. IIaswell, having been heretofore duly entered, and the cause being at issue as to the defendant Moulton, and being called on the calendar, the plaintiff moves for judgment pursuant to the prayer of the complaint, and 1456 produces to the court his proofs and evidence, which being duly considered, the court finds the following facts: First. That Josiah Roop, now deceased, on the ninth day of Jan. uary, A. D. 1851, made his promissory note in writing, bearing date on that day, and delivered the same to the plaintiff, whereby, for value received, he promised to pay one year after the date thereof to the plaintiff, or order, the sum of sixteen hundred dollars, a copy of which note is set forth in the complaint. Second. That the said Josiah Roop, to secure the payment of the said promissory note according to the terms thereof, at the same time executed under his hand and seal, and delivered to the plaintiff, an indenture of mortgage upon certain real property described therein, situated in the county of Yuba, which indenture of mortgage is set forth in the complaint and was duly acknowledged, and was re1457 corded in the office of the recorder of Yuba county, in book of mortgages number two, on page 159, January 10th, 1851. Third. That the said Josiah Roop died intestate, some time in 1852, and was at the time of his death a resident of Shasta county, 908 The United States vs. Sutter. and letters of administration upon his estate were duly issued by the probate court of Shasta county to the defendant, Isaac Roop, who received such letters, qualified as administrator, and duly assumed the administration of said estate. Fourth. That the said promissory note was due and payable on the twelfth day of January, one thousand eight hundred and fifty-two, but that no part of the same was then paid, nor has any part thereof ever been paid since; and the entire principal sum thereof, together with the interest thereon, from its maturity, namely, January 12th, 1852, at the rate of ten per cent. a year, are due thereon and payable to the plaintiff; that the payment of the same was often demanded of the said Josiah Roop in his lifetime, and since his death has 1458 often been demanded of the defendant Isaac Roop, administrator of the estate of the said Josiah Roop, which principal sum and interest amount, this day, November 19th, A. D. 1856, to the sum of two thousand three hundred and seventy-five dollars and ninety-six cents, and that the said indenture of mortgage has never been released, discharged, or satisfied, but is still a subsisting lien upon the real property described therein. Fifth. That the defendants, William Moulton and John C. Haswell, have or claim to have some interest in or lien upon the said mortgaged premises; but if they have any, it is subsequent to the lien of said mortgage of the plaintiff. And from the said facts the conclusions of law is, that the plaintiff is entitled to judgment pursuant to the prayer of his said complaint. It is therefore ordered, adjudged, and decreed that the undivided fourth of that certain tract or parcel of land situated in said Yuba county, and which is bounded and described as follows, to vwit: 1459 beginning at a point on the east bank of Feather river, which point is marked by one twelve-inch oak tree bearing north eighty-three degrees west, distant ten feet, and one twenty-fourinch sycamore tree bearing north seventy degrees east, distant fortynine feet, one mile below Plumas; thence down to the mouth of Bear creek; thence up Bear creek to a point which shall be on a direct magnetic meridian east of the point of beginning; thence wqst (magnetic) to said point of beginning on Feather river, containing eighteen hundred and twenty-two and three-fourths acres, more or less, and all the right, title, and interest, which the said Josiah Roop possessed at the date of the said indenture of mortgage, namely, January 9th, 1851, or which he possessed at anytime afterwards, be sold by the sheriff of Yuba county, at public auction, to the highest bidder for cash, in like manner and upon notice as sales of real property, under execution, are required by law to be made by the said sheriff, and that the proceeds arising from such sale be applied by the said sheriff, after deducting therefrom his fees, to the payment of 1460 the principal and interest due and owing on said promissory note and mortgage, viz: the sum of two thousand three hundred and seventy-five dollars and ninety-six cents, with interest thereon, at the rate of ten per cent. per annum, from the date hereof until The United States vs. Sutter. 909 paid, and to the payment of the costs of this action, taxed at seventythree dollars and fifty-five cents. And it is further ordered, adjudged, and decreed that if any surplus monies remain of the proceeds of the sale of said mortgaged premises, after the payment of the said sum, interest, and costs, the said sheriff bring such surplus monies into court to abide the further order of the court. Rendered November 19th, A. D. 1856. Entered November 21st, A. D. 1856. Judgment debt..................................... $2,375 96 Taxed costs........................................ 73 45 Total judgment..................................... 2,449 51 WM. T. BARBOUR, Dist. Judge. 1461 STATE OF CALIFORNIA, County of Yuba, ss: I, Lloyd Magruder, clerk of the district court in and for the county of Yuba, State of California, hereby certify that the above and foregoing is a full, true, and correct copy of the original judgment and decree of foreclosure, in the aforesaid entitled cause, as the same now remains of record and on file in the office of said court. Witness mv hand, with the seal of our said court affixed, at the city [SEA. of Marysville, the county seat of said county of Yuba, this sixth (6th) day of November, A. D. 1857. LLOYD MAGRUDER, Clerk of the Court aforesaid. On which appear the following endorsements: State of California, county of Yuba. H. H. Hackney vs. Isaac Roop, adm'r, &c. Certified copy of judgment and decree of foreclosure. Received on the 7th day of November, A. D. 1857. 1462 W. B. THORNBURGH, Sheriff Yuba Co., P'r L. McGOWN, Under Sheriff. Accruing costs of clerk................................ $700 Filed January 2, A. D. 1858. LLOYD MAGRUDER, Clerk. Per W. T. O. NEALE, Deputy. STATE OF CALIFORNIA, County of Yuba, ss: I, William T. O. Neala, clerk of the district court in and for the county of Yube, State of California, hereby certify that the above 910 The United States vs. Sutter. and foregoing is a full, true, and correct copy of the original certified copy of decree of foreclosure issued to the sheriff of Yuba county, together with his return endorsed thereon in the aforesaid entitled cause, as the same now remains of record and on file in the office of the said court. Witness my hand with the seal of our said court affixed, at the city [SE of Marysville, the county seat of said county, this thirteenth day of September, A. D. 1861. W. T. O. NEALE, Clerk of the Court aforesaid, Endorsed: Filed Oct. 9, 1861. W. H. CHEVERS, Clerk. 1463 Dep. of John H. McKee, for Gillespie. In the district court of the United States for the northern district of California. THE UNITED STATES THE UITED ST S In land cases, —Dist. court No. 319.-Land V'. I corn No. 92. JOHN A. SUTTER. c Be it remembered, that on this 23rd day of September, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared John H. McKee, a witness produced in behalf of E. F. Gillespie in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: J. B. Williams, for W. H. Sharp, for U. S.; E 1464 Johnson, for Gelston; C. V. Gillespie, in proper. Questions in behalf of E. F. Gillespie. Question 1st. Your name, age, and place of residence? Ans. 1st. Wm. 11. McKee; I am 31 years of age; I reside in San Francisco. (Objected to by U. S., because the witness is incompetent to give testimony in this case, being one of the parties to the record.) Quest. 2nd. Were you formerly, or are you now acquainted with John J. Vioget, whose deposition has been taken in this case? Ans. 2nd. I was acquainted with him in the year 1854, and for several years previous. I believe he is now dead. Quest. 3rd. During his lifetime did you ever have any conversation with him respecting the map B. P. L., filed in this case, or the The United States vs. Sutter. 911 map A. P. L., filed in this case? And if so, state what that conversation was, and when it took place. 1465 (Question objected to as incompetent, because no new evidence can be taken with respect to those maps in the present stateof the case.) Ans. 3rd. In 1854 I went to see Vioget at his residence on the Pulgas ranch, and showed him the map A. P. L., and asked him if he had made it; he said he had; that it was a copy of the original map he made for Capt. Sutter, with the exception of dotted lines along the margins of the rivers, and some other trifling variations. I asked him what the dotted lines along the margins of the rivers was intended to designate; he said they were the estimated line of the tule lands. I then asked him if the dotted lines were intended to designate the boundaries of any land intended to be included in the grant of Capt. Sutter; he said they were not, but, as near as he could recollect, to mark the tule and timber land. At that conversation he told me he had made the map in 1843. I then got him to put the certificate which appears on the map 1466 A. P. L., which will show the date of this conversation. I saw Capt. Sutter give the map to Muldron in 1850, I think; after that I had it at intervals in my possession up to 1854, when I took it down to the Pulgas to see Vioget. At that time Mtildron and myself had a joint interest under Sutter in some lands; they were north of the American river. I don't remember anything else. I went down to see Vioget because I had just then heard of the land lying between the dotted lines and the rivers, as shown on map B. P'. L., being the land selected by Sutter. This map A. P. L. had been given to us by Sutter long before, as a copy of the original, and I had never heard of any map with dotted lines upon it, until about that time. That is all. Quest. 4th. Did you understand from what Mr. Vioget told you that lie intended by the dotted lines upon B. P. L. to rep1467 resent the outline in some places of the tule lands, and in other places of the timber lands, embraced within the survey? (Quest. objected to as leading and because the witness having already stated the conversation between himself and Vioget, it is for the court to draw the inference, and not the witness.) Ans. 4th. The main object I had in talking to Vioget was to know whether the dotted lines included the lands intended to be selected by Sutter. I was satisfied from the conversation they were not. He told me the dotted lines were the estimate lines or outlines of the swampy and timber lands. I think he told me the dotted lines were put down by guess, and not from actual survey. Cross-examination.-Questions by att'y for R. Gelston. Quest. 5th. Did Vioget at that time, in 1854, when you had the conversation with him, as you have testified, tell you whether he did 912 The United States vs. Sutter. or lid not really make a survey for Capt. Sutter in 1840 or 1468 1841, of the land which Capt. Sutter desired to have granted him by the Mexican government? (Objected to by Mr. Gillespie, because incompetent, as the fact of a survey having been made by Vioget for Sutter has been settled by the courts, and is not now open.) Answer 5th. He told me he examined the land, and took some observations for latitude, with a view of making a map showing the location of the country, but that he made no survey of any particular tracts to be included in the grant from the Mexican government; and that the land included within the dotted lines was not laid down on the map with the intention of being asked or petitioned for exclusively. Direct resumed. Question 6th. Was it in the year 1854, during the interview alluded to with Mr. Vioget, that he stated to you that he had 1469 never made an actual survey of any portion of the grant of New Helvetia? Answer 6th. It was. Quest. 7th. Did you have any interest in the grant of New H-elvetia prior to the year 1854? Ans. 7th. I had some lots in the city of Sacramento. Quest. 8th. Were you not aware in the year 1852, at the time Sutter, by his attorneys, filed his claim before the land commissioners, that map B. P. L. was filed with the petition together with other papers? Ans. 8th. I don't recollect having seen or remarked it, so far as the dotted lines are concerned, until about the summer of 1854. I had begun to advance money to my adopted father in 1853 on his interest in the grant, and had no particular occasion before then to examine the map. JOHN II. McKEE. Subscribed and sworn to before me this 23rd day of September, A. D. 1861. CUTLER McALLISTER, U. S. Comm'r. 1470 Endorsed: Filed Oct. 10, 1861. W. H. CHEVERS, Clerk. Dep. of A. I. Von Schmidt, for Gillespie. In the district court of the United States for the northern district of California. THE UNITED STATES In land cases.-Dist. court No. 319.-Land'U, cor. No. 92. JOHN A. SUTTER...2. Be it remembered, that on this 27th day of September, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler The United States vs. Sutter. 913 McAllister, a commissioner duly appointed by the circuit court of the United States for the district of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally 1471 appeared A. W. Von Schmidt, a witness produced in behalf of E. F. Gillespie in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, by J. B. Williams, for U. S.; V. E. Howard, by L. Aldrich, for Gillespie; E. Johnson, for Gelston. Questions in behalf of E. F. Gillespie. Question 1st. Your name, age, and place of residence? Ans. 1st. A. W. Von Schmidt; I am over 21 years of age; I reside in San Francisco. Quest. 2nd. Did you make the preliminary survey in this case? Ans. 2nd. I did. Quest. 3rd. State if you know a house situated on the American river, in Sacramento county, known as the St. Clair House. If so, state where the same is located. 1472 Ans. 3rd. I know the location of the St. Clair House; it is on the south bank of the American river, and about the centre of station 13, in lot No. 1, of the map of official survey, filed Febr'y 27, 1860. The house stands, or stood then, near the bank of the river, within a few feet of it. Quest. 4th. Look at the map of the official survey, filed on the 27 February, 1860, among the papers in this case, and state whether or not the St. Clair House, as located on that map, is correctly located. Ans. 4th. The St. Clair House as located on said map, in lot No. 1, opposite station 14, and some distance from the river; whereas the true position of the house would be about the centre of station 13 in said lot No. 1. Cross-examination.-Ques. for Gelston. Quest. 5th. How did you ascertain the location of the St. Clair House? Ans. 5th. As near as I can recollect, I think it was pointed 1473 out to me by Gen'l Sutter; and there was some persons, either Danes or Swedes, living in this house at the time I made the survey, and I asked them if that was what they called the St. Clair House, and they said yes. That is all the information I had with regard to the identity of the premises. Quest. 6th. On the map of your preliminary survey, is there not a line laid down as the southern boundary of the New Helvetia grant; commencing on the eastern bank of the Sacramento river, at a point some five miles south of the American river, and extending due east until intersected by a line running due south from a blazed tree stand[REC. CCLvIII, D. T. 1862.]-58 914 The United States vs. Sutter. ing on the south bank of the American river, some nine miles east of Sacramento city, and a few rods east of the Patterson House, so called? (Question objected to as new matter not responsive to the examination in chief.) Ans. 6th. I ran such a line at the special request of General 1474 Sutter. He claimed to that line as his southern boundary line in fact. Examination closed. A. W. VON SCHMIDT. Subscribed and sworn to before me this 27th day of September, A. D. 1861. ~[SEAL.]~ CUTLER McALLISTER, ^~[ ^~~SEA,,~L.] U.S. Comm'r. Endorsed: Filed Oct. 10, 1861. W. H. CHEVERS, Clerk. Dep. of Albert 1M. Winn, for E. F. Gillespie. In the district court of the United States for the northern district of California. THE UNITED STATES In land cases.-Dist. court No. 319.-Land V' (corn. No. 92. JOHN A. SUTTER.. Be it remembered that on this 4 day of October, A. D. 1475 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally apieared Albert M. Winn, a witness produced in behalf of E. F. Gillespie in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: J. B. Williams, for W. H. Sharp, U. S. att'y; E. Johnson, for Gelston; L. Aldrich, for Brannan and Garrison; V. E. Howvard, by L. Aldrich, for Gillespie. Questions in beha7fof Gillespie. Question 1st. Your name, age, and place of residence? 1476 Ans. 1st. My name is Albert M. Winn; I am over 21 years of age; I reside in Sutter county. Quest. 2nd. State whether or not you have a knowledge of surveying, and the extent of that knowledge. Ans. 2nd. I have a knowledge of surveying. I have been in the habit of surveying lands in this country to some extent, also in Mississippi. I consider myself a practical surveyor. The United States vs. Sutter. 915 Quest. 3d. If you had a map before you upon which a line running northeast is laid down, one mile from a river by scale, and it should appear by an actual survey that the river is half of a mile further south than indicated on the map, would you remove the line half of a mile further south to conform to the river, or would you, with the imperfection of the map, continue the space between the river and the line but half of a mile? (Question objected to because purely hypothetical, the atten1477 tion of the witness not being called to a point of dispute in this case; secondly, because if the question is meant to apply to the southern boundary line of Sutter, that is a point for the court and not for the witness to determine.) Ans. 3d. If it was evident that a mile was to be obtained between the point indicated and the river, then I would certainly conform to the intention of the surveyor, and would not be guided by the imperfections of the map. Cross-examination waived. A. M. WINN. Subscribed and sworn to before me this 4th October, A. D. 18G1. CUTLER McALLISTER, [SEAL.] U. S. Comm' r. Endorsed: Filed Oct. 10, 1861. W. H. CHEVERS, Clerk. 1478 Dep. of Sam'1 Norris, for E. F. Gillespie. In the district court of the United States for the northern district of California. THE UNITED STATES land cases.-Dist. court No. 319.-Land In land cases.-Hist. court, No. 319.-Lcandt com. No. 92. JOHN A. SUTTER. Be it remembered, that on this 4th day of October, A. D. 181l,' at San Francisco, in the district aforesaid, before me. Cutler McAllister, a commissioner duly appointed by the circuit court of of the United States for the district, of California, to take acknowledgments of bail and affidavits, alid also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared Sam'l Norris, a witness produced in behalf of E. F. Gillespie, in the above-entitled caulse, now pending in said court, under the acts of Congress to 1479 ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Wm. H. Sharp, U. S. att'y, by J. B. Williams; L. Aldrich, for Garrison and Brannan; E. Johnson, for Gelston; V. E. Howard, by L. Aldrich, for Gillespie. 916 The United States vs. Sutter. Questions in behalf of Gillespie. Question 1st. Your name, age, and place of residence? How long have you been living in California? Ans. 1st. Sam'l Norris; I am over 21 years of age; I live in Sacramento county; I have lived in California 16 or 17 years. Quest. 2nd. Do you know the old St. Clair House on the American river, in Sacramento county? If so, state how the same is located with reference to the river. Ans. 2nd. I do; I have known it since 1844. It is situated immediately on the west bank of the American river, about a half of a mile north of what is now known as the four-mile house, where 1480 the American river makes an abrupt bend to the east or north of east. Quest. 3d. Look upon Exhibit Cleal No. 2, and say whether the St. Clair House, as located thereon, is correctly located. Ans. 3d. It stands immediately on the bank; I should judge that its location on Exhibit Cleal No. 2 is very near correct. There is just room for a waggon to pass between the house and the bank of the river. Quest. 4th. What means of knowledge have you of the location of that house? Ans. 4th. I was there when Mr. St. Clair lived there, at various times from 1844 until the time that he left it. I leased it from Capt. Sutter in 1846, and occupied it until 1849, when I bought it from Capt. Sutter; and I occupied it from that time until the squatters stole it. SAM'L NORRIS. Subscribed and sworn to before me this 4 October, A. D. 1861. SEAL. CUTLER McALLISTER, I^~~s^E^a~~L~] Z ~U. S. Comm'nr. 1481 Endorsed: Filed Oct. 10. 1861. W. H. CHEVERS,. Clerk. In the district court of the United States for the northern district of California. Dep. of H. M. La Ruefor IlcKee. THE UNITED STATES E UISTTES In land cases.-Dist. court No. 319.-Land V* cor. No. 92. JOHNA. SUTTER.m. 92. Be it remembered, that on this 5th day of October, A. D. 1861, at San Francisco, in the district aforesaid, before me, Cutler McAllister, a commissioner duly appointed by the circuit court of the United States for the districts of California, to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil The United States vs. Suttcr. 917 causes depending in the courts of the United States, pursuant 1482 to the acts of Congress in that behalf, personally appeared H. M. La Rue, a witness produced in behalf of J. H. McKee, in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: J. B. Williams, for W. I. Sharp, U. S. att'y; J. H. McKee, in pro. per.; E. Johnson, for Gelston. Questions in behalf of J. H. McKee. Question 1st. Your name, age, place of residence, and occupation? Ans. 1st. H. M. La Rue; I am 31 years of age; I reside in Sacramento county; I am farmer by occupation. Quest. 2nd. Do you know the land on the north bank of the American river along the westerly line of the Rancho del Paso; and if so, how long have you known it? Ans. 2nd. I know said land; I have known it from about the 15th day of October, 1849. 1483 Quest. 3rd. From the American river northward, along said westerly line of Rancho del Paso, is there now any tule land, say for three miles along said western line? Ans. 3rd. There is none. Quest. 4th. Was there any there in 1849, when you first knew said land? Ans. 4th. I think not. There was none for two miles and a half. On the Rancho del Paso, adjoining this line, there was a few acres of tule in a little pond which lies from one to two hundred yards on the Rancho del Paso, east of said western line. All the land around said pond was high good land; it was not very high; that is, it is a plain which is cultivated every year, but is sometime subject to overflow. Quest. 5th. Is the land west of and adjoining the westerly line of the Rancho del Paso for two or two and a half miles north of* the American river, enclosed and occupied; and if so, when was it enclosed, and by whom? 1484 Ans. 5th. A portion of the land west of the line and north of the river is enclosed and occupied. It was first enclosed (a portion of it) in 1850 by a temporary brush fence. I forget who put up the fence. A man named Brown occupied it in 1850. In 1851 Muldrow, McKee, and others enclosed a large portion of it with a ditch fence running northward along the Marysville road to a point about two miles and a half from the American river; thence by a ditch in a westerly to a southwesterly direction to a slough known as Wilson's or Fowler's slough. There was also poles and pickets on a portion of it. I hauled some of the materials on the ground for a portion of the fence when it was referred in 1852. 918 The United States vs. Sutter. Quest. 6th. What was the land, so inclosed and occupied, used for in 1850 and 1851? Ans. 6th. It was used for cutting hay, raising vegetables, pasturing. 1485 Quest. 7th. Do you know if any portion of that tractfenced by Muldrow and McKee was plowed in 1851? If so, what portion? Ans. 7th. There was a portion of it plowed in 1851. One piece that was plowed was on the Marysville road, a half or three-quarters of a mile from the American river; I was present when they were plowing this piece. My impression is, that there was another piece of land on said tract plowed; this was something over two miles north from the river, lying near the Marysville road. The marks of the plows are still there; and I have no recollection of its having been plowed since then. Quest. 8th. Is not the tract fenced in by Muldrow and McKee all good land for pasturage and cropping? Ans. 8th. A large proportion of it-the most of it-is. Quest. 9th. What is the character of the rest of it? 1486 Ans. 9th. The rest of it is the portion of it which borders on the tule, on the Fowler slough. It is land that is capable of being planted late in the season, with late summer, fall, and winter crops, such as cabbage, potatoes, and corn. Quest. 10th. Look at the paper now shown you, and marked "Exhibit La Rue No. 1," to be attached to this deposition, and state if you know in whose handwriting it is, and if you know the signatures attached to it. (Objected to by U. S. as irrelevant and incompetent, and because the witness is not the proper person to prove it.) Ans. 10th. The handwriting I would take to be Col. Edwards', who was attorney for me several years; and I am acquainted with his handwriting. I recognize the signatures of Henry A. Bush, William Muldrow, and John McKee; the rest I do not know. 1487 Quest. 11th. Do you know where the claims of Baldwin and Fisher, spoken of in the 1st clause of the exhibit, were located? (Objected to as irrelevant and incompetent.) Ans. 11th. I do. They were both on the Marysville or Vernon road, about a mile or two, or between one and two miles, from the American river. The Prairie house was about two miles from the American river, on the Marysville road. Quest. 12th. Starting from the Marysville or Vernon road at its intersection with the ditch fence spoken of, about what direction, running towards the Sacramento river, would be the dividing line between the tule and good land on the 1st day of July last? (Objected to as irrelevant, so far as the time is concerned.) Ans. 12th. I should think a line running in about a southwesterly, or between west and southwest, would cut out all the tule; 1-488 that is to say, there would at this time be no tule south or The United States vs. Sutter. 919 east of such a line growing now. For two or three years back, there has been no tules growing there. Quest. 13th. Answer the same question with reference to the 1st day of September, 1850? Ans. 13th. Perhaps 100 or 200 acres, more or less, would have been tule land at that time south and east of the line spoken of. Quest. 14th. Since the average width of the good land along the east bank of the Sacramento river to the mouth of the Feather river? Ans. 14th. About half a mile, more or less. At a place about twelve miles above the American there is a strip about one mile wide or over. The place I mean is at Brown's ferry. This strip is of the width I have mentioned, about of the extent, along the river, of from one to two miles. I speak only of within the last two or three years. 1489 This strip does not bear tule, the land being too high for the water to stand on it. It has no appearance of ever having borne tule. Quest. 15th. State as near as you can the number of acres in the tract you have spoken of, as having been fenced in by Muldrow and McKee in 1850 and 1851. Ans. 15th. I suppose there is 2,000 acres, perhaps not over 1,500. The foregoing deposition objected to by the U. S. as irrelevant, incompetent, and hearsay, Cross-examination.-Questions by U. S. Attorney. Quest. 16th. Whereabouts in Sacramento county do you reside? Ans. 16th. On the Rancho Del Paso, on the north side of the American river. Quest. 17th. How long have you resided there? Ans. 17th. Since about the 1st of October, 1850. I came to 1490- California 1849. I camped awhile in October, 1849, on a portion of the land since enclosed by McKee and others. Quest. 18th. When you encamped there in 1849 had the rainy season set in? Ans. 18th. It had not; we had a shower. Quest. 19th. How near was your camp to the American and Sacramento rivers? Ans. 19th. It was about half of a mile from the American river and about two and a half miles from the Sacramento river. Quest. 20th. How long did you remain there? Ans. 20th. I was there, I think, four or five days; then I removed my camp to Drytown in Amador county. I came back and camped in the same place for one night in July, 1850. In August, 1850, about the latter part, I resided at Lisle's 1491 bridge or Lisle's ferry, on the north side of the American river. I remained there until the cholera drove me out somewhere about the 15th of October, 1850. From there I moved to where I live now on the Rancho Del Paso, about two or three miles from Lisle's bridge. 920 The United States vs. Sutter. Quest. 21st. Describe particularly the quality of the land on which you encamped in 1849. Ans. 21st. It was tolerably level land, covered with a heavy-coat of grass-such grass that grows on the bottom lands of the rivers. There was a lot of large trees there, and a lot of underbrush. Quest. 22d. Can you tell whether in the rainy season, and during the periodical overflow of the Sacramento and American rivers, the place you camped on in 1849 would have been overflowed? Ans. 22d. I think it would at a high stage of water. Quest. 23d. At what depth would the water stand at the 1492 same place after the waters fell in the rivers? Ans. 23d. I never was over the land when it was overflowed, and therefore could not tell the depth of water on it. There was a slough that was dry ordinarily, between the place that I camped and the American river; it is a kind of depression, hardly a slough. The land receded from where my camp was, very gradually, in a northwesterly direction toward the tule. Quest. 24th. Where was the western line of the Del Paso rancho, when you went there in 1850, in reference to the American river? (Question objected, because it must be proved by documentary evidence.) Ans. 24th. I don't know. Quest. 25th. Then in answer to question second, when asked if you know the land on the north bank of the American river 1493 along the western line of the Rancho Del Paso, you mean that you know the land to the west of the line of the Del Paso rancho as now surveyed, do you not? Ans. 25th. I mean that I know all that land around there. The land that I spoke of in ans. 2 is the land west of that line as it is now surveyed. Quest. 26th. In answer to question 3rd you say there is now no tule land for three miles along that western line; describe what you mean by tule land, whether land on which tule is now growing or land on which tule would grow, if not interfered with by. cattle or cultivation. Ans. 26th. I mean it is not the kind of land that tule generally grows upon. Quest. 27th. Now describe how far this quality of land extended west of the now surveyed line of the Del Paso rancho when you were encamped there in 1849. 1494 Ans. 27th. Where the western line is now surveyed, it is on bottom land nearly level. This kind of land ran west clear to the mouth of the American river. Quest. 28th. State which was the highest, the place where you was encamped, or the land due east of the camp on the El Paso line? Ans. 28th. Where I was encamped. Quest. 29th. Which was the highest, the place where you was encamped or the bank of the American river? The United States vs. Sutter. 921 Ans. 29th. I should judge the bank of the American river was a little higher; there is a very little difference between them. Quest. 30th. Did you notice in 1849 any tule growing between the place where you were encamped and the American river? Ans. 30th. I have no recollection of seeing any. There might have been some in the slough that I spoke of a rod or two wide. 1495 Quest. 31st. How far did the grass which grew in 1849 where you were encamped extend westerly from that place? Ans. 31st. It extended clear down to the Sacramento river. Quest. 32nd. How far south of that line to the American river? Ans. 32nd. It extended to the American river wherever there was an opening for it to grow. There was a large amount of underbrush there. Direct examination resumed. Quest. 33d. Has there ever been any artificial means used to reclaim the tract fenced in by Muldron and McKee? Ans. 33rd. None that I know of. The grass is not as good there as it was 10 years ago. Cultivation and pasturing tramps out the grass and tule, as fast as the water goes off, the cattle tramp the grass and tule down. 1496 Quest. 34th. Has the level of the land on said tract been raised by the deposits from the overflows since you have known it. Ans. 34th. When water overflows it must deposit something as it goes off; but it is so slight as not to be observable. I should think it was over one or two inches in ten years. H. M. LA RUE. Subscribed and sworn to before me this 5th day of October, A. D. 1861. CUTLER McALLISTER, SEAL.] U. S. Corm'r. Endorsed: Filed Oct. 11, 1861. W. H. CHEVERS, Clerk. 1497 Exhibit De La Rue, No. 1, for J. H. McKee. Whereas there is now depending in the district court of the Gth judicial district of the State of California, a suit between John S. Fowler, Eugene F. Gillespie, Henry E. Robinson, William Muldrow, and John McKee, plaintiffs, and Charles Bush, Henry Bush, Sidney Baldwin, Fisher, and others, defendants, in reference to the possession and title of certain lands therein described, which suit it is desired should be determined: Now, therefore, be it known, that the parties hereinbefore particularly named, do agree to compromise the said suit upon the terms and conditions following, to wit; 1. Strike a line from a point on the Vernon road midway of the parcel of land claimed by said Sidney Baldwin; thence recurring 922 The United States vs. Sutter. through the middle of said claim to the fence called Bush's fence at the opposite end of said claim; thence following the line of said fence north and east until it strikes the said road in the vicinity of the house called the Prairie House; thence with said road to the place of beginning. All the lands within the boundaries thus described 1498 are to be held and occupied by the plaintiffs, and the said defendants to hold and occupy the residue of their respective claims involved in this suit. 2. All are hay grown upon the parcels of land claimed by the said Sidney Baldwin and Fisher for the present year, shall be divided equally between the plaintiffs and the said defendants, after paying out of the proceeds thereof all necessary and proper expenses incurred or to be incurred by either of the parties in cutting, curing, and stocking of the same; but after the present year the parties shall in all respects be limited to the lands set apart to them respectively as aforesaid. 3. The parcels of land claimed by the said Charles Bush and Henry Bush are to be held and occupied by them. 4. The said suit is to be dismissed, each party paying their 1499 own costs therein; and they hereby severally stipulate not to institute any legal proceedings for or by reason thereof or of any proceeding growing thereout; but it is understood and agreed, that the defendants are to pay to the plaintiffs any costs which the latter may have advanced upon or by reason of the issuing of any writs of attachment now depending in said cause, and also to pay any costs which may yet remain unpaid thereon by reason thereof. 5. The plaintiffs shall have the privilege of cultivating and taking off any crops by them sown or planted, and now growing or being on any part of said parcels of land. 7. The fence on the north line of the parcel of land claimed by the said Fisher, being a part of the fence called Bush's fence, shall be removed and placed on the line running through the middle of the parcel claimed by the said Baldwin as aforesaid by the joint labor of the plaintiffs and the said defendants; and until the same shall be 1500 so removed and placed the plaintiffs and the said defendants, after the gathering of the crops aforesaid, shall pasture the same in common, but each party shall be limited to the same number of stock. 8. This arrangement shall continue in force until the title to said lands involved in said suit shall be ascertained and determined by the United States authorities, or other legal proceedings, provided that the parties hereto shall not be hereby bound for a longer period than three years from the day of the date hereof. 9. If the title to the lands involved in said suit shall be ascertained to be in the plaintiffs, then the defendants shall be considered as having held and occupied under them, and if such title shall be determined against the plaintiffs, then their occupancy shall in no respect prejudice the claims of the defendants, but they shall 1501 be considered the occupants for the purpose of securing preemption or other rights to the defendants, provided that the claim of no third person is affected. The United States vs. Sutter. 923 10. It is understood that the hay cut by the plaintiffs and removed by the defendants from said lands is to be included in the division of hay hereinbefore mentioned. And if any hay shall have been removed by the plaintiffs, they shall in like manner account for the same. Witness our hands this 9th day of July, A. D. 1861. CHAS. E. BUSH. HENRY A. BUSH. SIDNEY M. BALDWIN. JAMES FISHER. WILLIAM MULDROW. EUGENE GILLESPIE. JNO. McKEE. Endorsed: Filed October 11, 1861. W. I. CHEVERS, Clerk. 1502 Order directing new plat of location. At a stated term of the district court of the United States of America for the northern district of California, held at the court-room in the city of San Francisco, on Thursday, the seventh day of November, A. D. 1861. Present: Hon. Ogden Hoffman, dist. judge. THE UNITED STATES v. k No. 319. JOHN A. SUTTER. ) This cause came on to be heard upon exceptions to the official plat of location, made by the surveyor general of the U. S. for California in pursuance of the order of this court, entered July 1, 1861, which said plat was filed in this cause July 17, 1861, and counsel for the respective parties having been heard, and due deliberation had, it is hereby ordered and adjudged that the said plat of location be set aside. 1503 And it is further ordered that the surveyor general of the United States for California cause a new plat to be made without delay, in conformity with this order, and return the same for confirmation and approval. And it is further ordered that the said plat shall be made as follows, to wit: Tract No. 1, as shown on said plat filed July 17, 1861, shall be modified as follows, to wit: The subdivision lines intersecting at right angles the dotted line of Exhibit B. P. L. to be discarded, leaving said dotted line as the southern line of said tract No. 1. Tract No. 2 to remain as shown on said plat filed July 17, 1861. Tract No. 3 to remain as shown on said plat filed July 17, 1861. Tract No. 4, as shown on said plat, shall be modified as follows: The north line of said tract to commence forty chains due north from the eastern termination of course 165, and thence due west to 921 The United States vs. Sutter. 1504 the Yuba river, leaving out of said tract all that portion shown on said plat north of said line. Tract No. 5 to remain as shown on said plat filed July 17, 1861. Tract No. 6 to remain as shown on said plat filed July 17, 1861. Tract No. 7 to remain as shown on said plat filed July 17, 1861. Tract No. 8 to be a tract of land containing 640 acres, more or less, as described in a deed from John A. Sutter, by his attorney Frederick Emory, to James Sevige, dated January 1, 1850, to be located in accordance with the description in said deed, marked Exhibit Y, for the United States, filed Oct. 9, 1861; to which deed for more particular description reference is to be had by said surveyor general. Tract No. 9 to be a tract of land containing 330 acres, more or less, as described in a certified copy of a deed from John A. Sutter to James Sevige, dated May 4, 1850, to be located in accordance 1505 with the description in said deed, marked Exhibit Z, for the United States, filed Oct. 9, 1861; to which deed for more particular description reference to be had by said surveyor general. Tract No. 10 to be a tract of land containing two miles square, as described in a certified copy of a deed from John A. Sutter, jr., to Samuel Brannan, dated May 11, 1849, to be located in accordance with the description in said deed, marked Exhibit Brannan B, filed Oct. 9, 1861, and the plat marked Exhibit B, filed August 13, 1861, if the said tract can thus be identified; to which deed and plat for more particular description reference to be had by said surveyor gen. eral. Tract No. 11 to be a tract of land containing 182- acres, more or less, as described in a certified copy of a deed from John A. Sutter to Hackney and McCullough, dated April 3, 1850, to be located in accordance with the description of said deed, marked Exhibit Garrison No. 2, filed August 13, 1861; to which deed for more particular description reference to be had by said surveyor general. 1506 Tract No. 12 to be that portion of tract No. 8, shown on said plat filed July 17, 1861, lying north of a line commencing 40 chains due north from the intersection of the western line of said tract with the line dividing township 14 north, range 3'east, from township 15 north, range 3 east, and running due east to the Sacramento river. Tract No. 13, to be substituted for the residue of tract No. 8, shown on said plat filed July 17, 1861, shall contain such an area as will, after satisfying the twelve tracts hereinbefore described, complete the quantity of eleven square leagues, and shall be located as follows: commencing at a point on the west bank of Feather river, in section 35, township 14 north, range 3 east, twenty chains north from the line dividing said township from township 13 north, range 3 east; thence due west to the eastern line of section 34 in said township 14; thence due south and along the eastern line of said section 34, and along the eastern line of section 3 in said township 13, sixty 1507 chains, to the eastern termination of the line dividing the northern from the southern half of said township 13, range 3 east; thence west and along said last-mentioned dividing line eighty The United States vs. Sutter. 925 chains; thence north 40 chains along the western line of said section 3, to the northwest corner of said section 3; thence east and along the north line of said section 3, forty chains, to the southern termination of the line dividing the west from the east half of said section 34; and thence north, but not crossing the line dividing sections 1, 2, 3, 4, 5, 6 from sections 7, 8, 9, 10, 11, 12, township 14 north, range 3 east, to such point as will, by a line drawn due east to the Feather river, include the quantity aforesaid. And it is further ordered, that the U. S. marshal for this district serve a certified copy of this order upon the surveyor general of the United States for California, together with Exhibits "Y", "Z," "Brannan B," "B," "Garrison No. 2," hereinbefore referred to, and the plat of location filed July 17, 1861, said exhibits and 1508 plat to be returned by said surveyor general with the new plat hereinbefore ordered to be made. OGDEN HOFFMAN, Dist. Judge. U. S. MARSHAL'S OFFICE, NORTHERN DISTRICT OF CAL'A. I hereby certify that I received the within order on the 7th day of November, 1861, and the same day served the same on Edward F. Beale, esq., surveyor general, by delivering to him a certified copy, together with Exhibits "Y," "Z," "Brannan B," "B," "Garrison No. 2," and plat of location filed July 17th, 1861. WM. RABE, U. S. Marshal, Per CHAS. A. BRAYTON, Deputy. San Francisco, November 7th, 1861. Endorsed: Filed Nov. 7, 1861. W. H. CHEVERS, Clerk. [Here follows plat, page 1508.] Table of bearings and distances of the southern and eastern boundary lines C, D, F, B, of tract No. 1. No. Bearings. Distance. Chs. Lks. 1 N. 86~ E.................................. 170.00 2 N. 27 E.................................. 148.00 3 N. 573 E.......................... 148.00 4. 46~ E................................ 84.00 5 S. 551 E................................. 62.00 6 S 47 E................................ 40.00 7 N. 871 E.............................. 80 00 8 N. 78 E................................. 40.00 9'N. 55 E................................... 60.00 10 N. 716 E.................................. 60.00 11 N. 47 E............................... To west boundary of land confirmed to ex'ors of B. C. Folsom, thence along said boundary12 North............................ To the tree on left of American river. NOTE. — The bearings of the first 11 courses, and the distances of the first 10 courses shown in the above table, have been copied from 926 The United States vs. Sutter. the sketch of said lines C, D, F, B, on file in this office, a copy of which was heretofore filed in the court. U. S. SURY'R GEN'L OFFICE, SAN FRANCISCO, CALIFORNIA, November 20, 1861. I certify that this plat of location of the New Helvetia rancho has been compiled from the records of this office, and in accordance with the decree of the U. S. district court, dated November 7, 1861. [SEAL.] E. F. BEALE, U. S. Surv'r Gen', Cal. 1509 At a stated term of the district court of the United States for the northern district of California, held at the court-room in the city of San Francisco, on Monday, the 25th day of November, A. D. 1861. Present: Hon. Ogden Hoffman, dist. judge. Order approving plat and directing actual survey. TIHE UNITED STATES V. No. 319. JOHN A. SUTTER. It appearing to the court, that, in pursuance of the order of the court entered and filed November 7th, 1861, the surveyor general of the United States for California has returned a plat for approval, showing his location of the land confirmed in this case, and which said plat was certified to by said surveyor general on November 20th, 1861, and on the same day filed in the clerk's office: Now therefore, on application of the attorneys for claimant, 1510 all parties being present by their attorneys, it is ordered, adjudged, and decreed that the plat locating the eleven square leagues of land confirmed to the claimant John A. Sutter, certified to by the surveyor general of the United States for California, November 20th, 1861, and filed in the clerk's office November 20, 1861, and marked "approved November 25th, 1861, Ogden Hoffman, U. S. district judge, " be, and hereby is, approved and confirmed as the official plat of location of the land confirmed to John A. Sutter in the manner following, to wit: Tract No. 1, as shown on said approved plat; provided, that when actually surveyed on the ground the southern line of said tract, representing the dotted line of Exhibit B. P. L., shall be run strictly in conformity with said line as shown on said exhibit. Tract No. 2, as shown on said approved plat. Tract No. 3, as shown on said approved plat; provided, when actually surveyed on the ground, the northern and eastern 1511 lines of said tract, representing the line of separation between the tule or marsh and the dry and good land, shall be run on the said line of separation as the same existed at the date of the grant from Gov. Alvarado to John A. Sutter. Tract No. 4, as shown on said approved plat. The United States vs. Sutter. 92T Tract No. 5, as shown on said approved plat; provided, that when actually surveyed on the ground the lines of said tract shall be run in accordance with the descriptions contained in the several deeds from John A. Sutter to Nicholas Algier and others, which deeds, or copies thereof, are on file and of record in the case. Tract No. 6, as shown on said approved plat; provided, that when actually surveyed on the ground, the lines of said tracts shall be run in accordance with the descriptions contained in the deed from John A. Sutter to Bates, Crosby, and Norris, which deed, or a copy thereof, is on file and of record in the case. Tract No. 7, as shown on said approved plat; provided, that 1512 when actually surveyed on the ground, the lines of said tract shall be run in accordance with the description contained in the deed from John A. Sutter to T. J. Green, which deed, or a copy thereof, is on file and of record in the case. Tract No. 8, as shown on said approved plat; provided, that when actually surveyed on the ground, the lines of said tract shall be run in accordance with the description contained in the deed from John A. Sutter to James Sevige which deed, or a copythereof, is on file and of record in the case. Tract No. 9, as shown on said approved plat; provided, that when actually surveyed on the ground, the lines of said tract shall be run in accordance with the description contained in the deed from John A. Sutter to James Sevige, which deed, or a copy thereof, is on file and of record in the case. Tract No. 10, as shown on said approved plat; provided, that when actually surveyed on the ground, the lines of said tract shall 1513 be run in accordance with the description in the deed from John A. Sutter to Samuel Brannan, which deed, or a copy thereof, is on file and of record in the case. Tract No 11, as shown on said approved plat; provided, that when actually surveyed on the ground, the lines of said tract shall be run in accordance with the description contained in the deed from John A. Sutter to Hackney and McCullough, which deed, or a copy thereof, is on file and of record in the case. Tract No. 12, as shown on said approved plat. Tract No. 13, as shown on said approved plat; provided, that when actually surveyed on the ground, that portion of the western line of said tract, shown on said plat as lying in township 14, range 3 east, shall be run so as to include, with the twelve tracts hereinbefore described, eleven square leagues of land. And provided further, that when actually surveyed on the 1514 ground, any and all lines shown on said approved plat, as conforming to the lines of government surveys, shall be run in accordance with the lines of government surveys, as they have been, or shall be officially ascertained and located by the surveyor general of the United States for California. And it is further ordered, that the surveyor general of the United States for California cause an actual survey of the land confirmed, to 928 The United States vs. Sutter. be made without delay, in accordance with the provisions of this order, and return a plat of the same for approval and confirmation. And it is further ordered, that the U. S. marshal for this district. serve upon said surveyor general a copy of this order, duly certified. OGDEN HOFFMAN, Dist. Judge. Endorsed: Filed Nov. 25, 1861. W. H. CHEVERS, Clerk, 1515 (Here follows plat of survey, page 1515.) Boundaries of tract No. 1. No. Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance. I N.86* E.. 170.00 35 S. 38 W. 12.00 69 N.45j' W. 9.00 103 S. 16*0W. 15.00 2 "27 ".. 148.00 36 " 86- ".. 5.00 70 " 31 ".. 31.00 104 " 23 "'.. 16.08 3 " 57* ".. 148.00 37 " 601 ".. 13.00 71 " 19, ".. 18.00 105 " 34j ".. 18.60 4 S. 46- ".. 84.00 38 " 66 ".. 20.00 72 " 7 c ".. 7.00 106 " 48 ".. 39.20 5 " 565 ".. 62.00 39 " 62 6.00 73 " 371 ".. 10.00 107 " 231 ".. 11.00 6 " 77 ".. 40.00 40 " 611 ". 7.00 74 " 641 ".. 20.00 108 " 11 E.. 4.10 7 N.871 ".. 80.00 41 " 61 "c.. 7.00 75 " 68 ".. 20.00 109 " 271 ".. 39.00 8 " 78* ".. 40.00 42 " 68' ".. 14.00 76 " 76* ".. 16.00 110 " 14 ".. 20.00 9 " 55 ".. 60 00 43 " 75- ".. 8.00 77 " 86.. 20.00 111 "19~ ".. 12.00 10' 71* ".. 60.00 44 N. 89* ".. 18.59 78 8.82* ".. 20.00 112 " 27 ".. 44.00 11 " 47y ".. 82.38 45 " 85 ".. 7.70 79 " 471 ".. 11.00 113 " 9y W. 6.00 12 I" 1 W. 71.26 46 " 6l ".. 12.00 80 " 40* ".. 3.00 114 " 23 ".. 7.00 13 " 79 ".. 5.96 47 " 60f ".. 8.16 81 " 15 ".. 3 00 115 " 26 ".. 18.00 14 S. 87* ".. 4.37 48 " 53* ".. 1000 82 " 5* E.. 4.00 116 " 17 ".. 5.40 15 " 6. ".. 4.66 49 " 26~ ".. 13.00 83 " 26- ".. 4.00 117 " 36 ".. 27.00 16 " 51* ".. 10.54 50 " 21 ".. 7.47 84 " 79 ".. 8.00 118 " 46* ".. 6.60 17 " 558- ".. 6.00 51 " 25 ".. 11.00 85 N.88 ". 6.001) 119 " 58".. 21.30 18 " 58' ".. 43.00 52 "16* ".. 5.64 86 8.85* ".. 4.00 120 " 6(*.. 9.00 19 " 54* ".. 13.00 53 " 10* E.. 32.00 87 "54 ".. 16.85 121 " 66* ".. 20.00 20 " 66* ".. 15.00 54 " 36 W.. 30.00 88 " 21 ".. 16.00 122 "59 ".. 6.00 21 " 514 ".. 11.00) 55 " 41* ".. 24.61 89 " 10 ".. 5.00 123 " 42 ".. 4.00 22 " 78v ".. 21.00 56 " 81 ".. 24.00 90 " 8 W. 5.00 114 " 22* ".. 5.00 23 " 70 ".. 9.00 57 " 68 ".. 8.00 91 " 15* ".. 5.55 125 " 0 ~.. 2.00 24 " 67 ".. 9.00 58 " 43{ ".. 16.00 9'2 " 32 ".. 6 00 126 " 17 ".. 2.00 25 " 7W* ".. 14 79 59." 40 ".. 14.00 93 " 67 " 9.54 127 " 9 E.. 3.00 26 N.42 "].. 22.50 60 " 57 ".. 6.00 94 N.57* "].. 15.7.2 1'8 " 22 ".. 2.00 27 " 54- ".. 18.30 61 " 421 ".. 3 00 95 " 67 ".. 4.00 129 " 8 ". U.00 28 " 82 ". 5 42 62 " 62.. 31 00 96 A. 80* ".. 12.00 130 " 27 ".. 2.00 29 S. 67* ".. 9.00 63 S. 81 ".. 24.00 97 " 51 ".. 4.00 131 " 41 "..'2.00 30 " 43 ".. 7.50 64 "677 ".. 11.00 98 " 41 ".. 9.50 132 " 38 ".. 2.00 31 " 516 ".. 15.00 65 " 59* ".. 9.00 99 " 6g E.. 11.30 133 "50 ".. 12.00 32 " 41 ".. 9.60 66 " 45* ".. 37 00 100 " 12* W. 7.00 134 "40 ~ ". 17.00 3d " 35* ".. 14.00 67 N. 58 ".. 18.00 101 " 21 ".. 2.00 135 " 89 ".. 4.00 34 " 52- ". 5.00 68 "15- ".. 7.00 102 " 16 ".. 19.00 Boundaries of tract No. 2. No. Course. Distance. No Course. Distance. No. Course. Distance No. Course. Distance. I S. 9* W. 13.00 18 8.487 W. 10.00 35 N. 2' W. 31.00 52 N,51*~E. 15.40 2 " 39* ".. 23.50 19 " 6 E.. 39.00 36 " 57 E.. 19.50 53 S. 73 ".. 18.55 3 " 10i ".. 7.86 20 " 49* " 34.03 37 " 46* ".. 15.3c 54 " 64* ".. 8.00 4 " 5 ".. 5.00 21 " 7t "" 24.00 38 S. 80* W. 9.75 55 " 74.. 9.43 5 " 16' E.. 14.00 22 " 814 ". 20.30 39 N.69 ".. 4.50 56 N,89 ".. 20.00 6 " 38* ".. 7.60 23 " 85 ".. 10.80 40 " 9* ".. 11.50 57'" 78 ".. 13.00 7 "511.. I 25.00 24 East..... 14.14 41 " 11 E.. 19.50 58 "12 ".. 10.00 8 5 W, 25.50 25 S. 71 E.. 12.10 42 " 19, ".. 12.50 59 " 26 20.25 9 " 62 " 12.80 26 N.44 " 8.47 43 " 9 ".. 19.00 60 " 48. " 26.60 10 " 28 ".. 7.62 27 " 76 ".. 10.60 44 " 28* ".. 22.00 61 " 31 ".. 21.60 1I " 18* E.. 29.00 28 S. 73i ".. 27.40 45 " 8 ".. 17.50 62 " 5 ".. 8 00 12 " 25 ".. 18.00 29 N.41 ". 11.00 46 " 39 W. 4.00 63 " 27 ".. 5.70 13 "211 ".. 17.09 30 S. 79 ".. 9 00 47 "741 ".. 5.60 64 "73 ".. 28.75 14 " 20 ".. 11.00 31 " 9 ". 35.00 48 " 35 ".. 7.00 65 " 72 ". 50.26 15 " 141 " 15.75 32 " 55 ".. 26.11 49 " 11y ".. 12.35 66 North..... 24.50 16 " 26 "" 15.00 33 N. 60'" 13.00 50 " 5 E.. 1000 67 West. 308.20 17 " 10* W. 13.30 34 " 22 ".. 20.18 51 " 22 ".. 19.18 68 8.89' W. 156.90 The United States vs. Sutter. 929 Boundaries of tract No. 3. No. Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance. 1 North...... 46.00 56 N.45* W. 10.50 111 S. 52- E.. 16.00 166 N. 6E. 7.35 2 N. 5 W. 11.62 57 " 25.. 12.00 1112 " 441 ".. 7.00 167 " 71 " 15.60 3 " 80o ".. 21.00 58 " 4- ".. 7.00 113 " 3 ".. 5.00 168 " 83.. 22 53 4 " 561 ".1 31.13 59 " 151 ".. 8.00 114 " 42- ".. 14.00 169 S. 81 ".. 17.26 5 8. 59 " 32.50 60 " 75 ".. 7.00 115 " 33 "../ 10.00 170 " 86 ".. 5.50 6 " 87 ".. 31.51 61 S. 48* ".. 15.00 116 " 26 ".. 10.00 171 " 80 " 10.86 7 N. 5 E.. 20.00 62 l" 391 ".. 7.62 117 " 10* W. 3.27 172 /" 76 ".. 12.70 8 " 7- W. 22'.50 63 N. 76 ".. 4.32 118 " 32 1 E.. 10.90 173 ]" 80.. 19.52 9 S. 53 27.00 64 S. 67* ".. 36.29 119 " 23 ". 31.00 174 " 75".. 10.00 10 N. 80 " 21.00 65 N.46Q ".. 31.94 120 " 23 ".. 4.10 175 " 63 " 12.00 11 S. 8* ".. 33.11 66 " 16{ ".. 32.00 121 " 7 ".. 41.70 176' 52 ".. 13.40 12 " 791 ".. 28.45 67 1" 49 ".. 26.77 122 " 21* W. 84.00 177 cc 41 ". 3 00 13 N. 30 " 26.00 68 " 731.. 16.00 123 " 21 ".. 3,50 178 "' 29.. 4.00 14 S. 601 ".. 11.68 60 " 2* E.. 16.00 124 " 13- ".. 8 9.00 179 " 24 ".. 16 00 15 N. 74 " 8.00 70 S. 871 W. 11.00 125 " 12 ".. 15.00 180 " 22 " 3.50 16 " 361 ".. 11.00 71 N.24* ".. 18.00 126 " 12* ".. 33.00 181 " 161" 35.31 17 " 80 ".. 25.88 72 S. 74 ".. 19.00 127 /" 39 ".. 112.60 1.82 N. 61 ".. 3.82 18 " 4* ".. 30.42 73 N.35*;'.. 33.00 128 " 441 ".. 52.00 183 " 67 ".. 5.00 19 S. 44 ".. 9.77 74 " 5 E.. 7.00 129 " 3:!' ".. 9.80 184 " 63 ".. 1.35 20 N.76* ".. 12.52 75 " 181 W. 3.78 130 " 16* ".. 14.50 185 " 80I " 2.40 21 S. 24 E.. 10.00 76 " 34 ".. 2.00 131 ".. 23.00 186 East..... 1.60 22 " 38* ".. 17.00 77 " 33 ".. 2.80 132 " 9* E.. 21.00 187 N. 65 E. 165 23 " 41 W'. 3.00 78 " 591 ".. 6.00 133 " 18 ".. 11 00 188.72 ".. 12.00 24 " 1* E.. 6.00 79 " 16*I ".. 23.00 134 " 28* ".. 39.50 189 "44 ".. 8.. 0 25 " 50 ".. 8.00 80 " 21 E.. 32.00 135 " 45 ".. 8.00 190 N. 78 ".. 9.00 26 " 5* W. 12.00 81 " 401 ".. 8200 136 " 45- ".. 21.00 191 " 421 ".. 7.00 27 N.84 ".. 8.00 82 " 27* ".. 24.00 137 494 ".. 46.60 192 " 2 11.00 28 " 39 "..I 7.00 83 " 43'.. 63.00 138 " 49* ".. 41.00 193 " 21~ ".. 0.( 0 29 "86.. 6.00 84 S. 80 ".. 4.00 139 " 34 ".. 18.00 194 " 56* ".. 8.000 30. 6 ".. 12.00 85 N. 61 ".. 24.16 140 " 341 ".| 27.80 195 " 60 ".. 4.00 31 87 " 11.24 86 "54 1". 25.93 141 " 38 ".. 25.50 196 " 841 ".. 5.00 32 N.71, ".. 1625 b7 " 25 "..1 41.57 142 " 40o ".. 98.0 197', 631 ".. 2.3,33 " ". 40.34 88 " 54 W. 35.00 143" 9 ".. 1 0.00 198 " 85: ".. 9.00 34 "27 ".. 25.68 89 " 21 E.. 14.00 144 " 853 ".. 16.00 199 " 381 ".. 8.45 35 " 21 E.. 23.00 90 " 211 W. 12.00 145 N. 55- ".. 24.00 200 " 4".. 10.54 36 14 W. 2W..50 91 9 E.. 57.00 146 " 49" ".. 20.00 201" 34.. 12 00 37 "0 9 BE. 16.94 92 " 161 ".. 31.00 147 " 70 ".. 11.00 202 " 58 ".. 12.00 38 " 63 ". 23.97 93 " 46 ".. 11.00 148 S. 761 ".. 15.00 203 "79 4". 18.00 39 " 36 ".. 13.06 94 8. 69* ".. 26.00 149 " 59 ".. 40.10 1204 S. 8.. 20.00 40 8.89'".. 35.00 95 N.43 "..I 51.57 150 " 18* ".. 30.00 205" 7 ".. 9.00 41 N.31* ".. 22.00 96 o 5/ ".. 45.18 151 " 11* ".. 18.40 I206 " 70( ".. 3.00 42 " 2 W. 28.00 97 9 W. 36.00 152 " 161 ".. 25.25 207 " 73 ".. 1.00 43 " 50.. 20.00 98' 67.. 9.00 153 71 ".. 26.50 208 " 76'.. 2.100 44 S. 85 ".. 34.00 99 9 4* E.. 14.00 154 " 4* ". 23.30 209 N. 86".. 7.v0 45 N.57* "..4 13.62 l100 " 84* W. 18.19 155 ".. 31.20 210 8. 65".. 4.00 W "20-~ "' 9.44 101 / 28~ ".. 37.90 156 " 10~.. 16.20 211! 691 6.00 48" 4 i " 21.91 102' 361 ".. 25.98 157 " 9 ".. 12.00 212 " 67* ".. 8.00 48 "54 ".. 9.13 103'" 45* ".. 11.51 158 " 26 ".. 3.5.50 213 " 65 ".. 4 00 49 S.5.. 48.16 104 " 31 - ".. 23.11 159 " 33* ".. 15.80 214 " 73 ".. 8.00 50 N.47 ". 19.54 105 " 581 ".. 43.68 160 " 36 ".. 14.90 215 " 52* ".. 13.00 1S. 37 ".. 10.67 106 West...... 42.00 161 "1 45 ". 11.80 16 45.. 6.00 52 " 87 ".. 6.00 107.591 E.. 13.00 162 " 50 ".. 14.80 217 "36j.. 5.00 3 " 47 ".. 4.59 108 " 72.. 24.00 163 " 81, ".. 6.80.54 N.565 q ". 11.81 109 " 61* ".. 7.00 164 N.42- ".. 13.00 * 55 " 77 ".. 4.00 110 " 55* ".. 13.00 165 " 38 ". 13.00 Boundaries of tract No. 4. I West..... 7055 16 N.27 W. 12.00 318.8 W 13.00 46 S. 42E.. 15 00 2. 28 BE.. 8.86 17 " 87 6.50 132 " 3 E.. 19.00 47 " 24.. 2.00 3 " 22 W. 10.00 18 " 50- ".. 6.00 33 " 16* W. 15.00 48 East. 923.00 4 " 55.. 6.00 19 " 78'. 16.00 34 " 14.. 36.00 49 North. 60 01 5 " 77 ". 14.0 20 8. 62.. 5.60 35 " 91 ",. 9.50 50 East.. 20,0 6 < 4:1 ".. 15.00 21 " 4 ". 11.00 36 " 21 ".. 10.00 51 North 40.0) 7 " 2. "..{ 16.51 22 " 711 ".. 11.00 37 South... 28.00 52 East.... 40.00 8 "..* 27.00 23 N.56 <.. 1000 388.39 W. 10.00 53 North. 40.00 9 " 46 ".. 7.0 8.00 24 S.83 " 0 39 47.. 21.00 54 East. 40.00 C10 " 56' ". 16.00 I25 N.62 ". 10.75 40 " 33 E.. 11.00 55 North..... 40.00 1 "79 "71 " 9.00 26. 88* "8 23 65 41 " 7 4 "..i 20.75 56 East 40.00 12 West.... 9.00 27 " 7.. 20.60 42 N.68 ".. 13.00 57 North... 4U,00 1 N. 48 W. 29.00 28 S. 72. 4.00 43 " 41 ".. 7.00 14 " 10 ". 6.62 29 1. E.. 3 50 44 " 28 ".. 13.00 15 " 181 E. 6.00 30 "44.. 21.00 45 " 645 ".. 18.00 [REC. CCLVIII, D. T. 1862.]-59 930 The United States vs. Sutter. Boundaries of tract No. 5. No. Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance, 1 S. 41~20/E. 118.00 9 N.34- E.. 15.00 17 N.181 W. 39.75 25 N.52 E.. 62,40 2 " 51~101W 180.00 10 C 311 ".. 20.00 18 " 40~ E.. 11.59 26 " 661 ".. 8.30 3 " 24~ 5 C. 192.95 11 C 261 C.. 19.00 19 C 45 ". 36.00 27 C 31.. 10.40 4 N. 75~40". 80.00 12 C" 21 ".. 27.00 20 S. 54.. 19.36 28 " 63 ". 9.00 5 " 17* E.. 13.00 13 " 23 ".. 30.0 21 " 44 ".. 9.70 29 " 13* W. 31.00 6 " 161 ".. 24.00 14 " 19 ".. 12.00 222 " 40 ".. 15.00 30 " 2 E. 4.90 7 " 19 ".. 23.00 15 10 ". 11.83 23 N.80.. 6.00 8 " 30 ".. 19.00 16 "C 4 W 16.00 24 " 46 ".. 18.50 Boundaries of tract No. 8. 1 S. 23 W. 16.00 4 S. 15* E.. 12.00 7 S. 3 E.. 0.56 10 S. 86* W. 80.00 2 " 18' 17.00 5 " 30 C. 18.00 8 N.86 ".. 80.00 3 " 12 E.. 13.00 6 " 23.. 9.00 9 3w W. 80.00 Boundaries of tract No. 9. S. 34 EB.. 5.00 4 S. 26 E.. 10.00 7 N.36 W. 14.51 1 30 W. 20 0 2 " 421 ".. 14.00 5 " 101 W. 3.27 8 " 45. ".. 11.51 3 " 33 C".. 10.00 6 N.564 E.. 22.25 9 " 311.. 23.11 Boundaries of tract No. 10. 1I N.681 W. 143 81 8 S. 49 E.. 3.00 15 N.481 E.. 7.00 22 N. 19* E.. 8.41 2 S. 211 ".. 156 42 9 54 1.37 16 " 52 ".. 14.00 23 1 29'.. 8.68 3 " 68* E.. 86 84 10 " 431 ".. 4.00 17 " 60 ".. 9.61 24 " 48 W. 11.00 4 N 47 ".. 4. 0 11 " 36 ".. 2.00 18 " 53. 20.39 25 " 27 ".. 6.00 5 85.. 5.00 112 " 26 ".. 0.88 1 9 " 53 ".. 31.07 1 26 ".. 6.00 6 S. 61 ".. 6.00 13 " 39 ".. 19 54 20 "C 4 W. 32.65 27 " 1 E.. 4.10 7 " 60.. 3.00 14 N.74 ".. 15.55 21 " 74 E.. 5.00 28 " W. 19.2-2 Connecting lines. oursDistaCourse. Distance. urse. Between tracts 1 & 3. Between tracts 5 & 7. Beginning at end of course No. 71 oftractNo. ],thence- Beginning at post N. H. T. No. 5, at point of beginning of tract No. 5, thence along left bank of Feather riv. up streamI N.68 E.......................... 9.67 2 N.283 W....................... 3 81 3 N. 44 W....................... 4.00 1 N.29 E........................ 30.00 2 25 ".......... 000 3 13 w" 1 W............. 12.00 to post No. 1 of tract No. 3. 4 1 40 (. 6.50 to post No. I of tractNo.3. 4 "40 "......................... 6.50 Between tracts 5 & 8. to junction of Bear and Feather rivers; thence along Beginning at post N. H. No. 5, the SW. corner of tract left bank of Bear riv. up stream — No. 5, thence- ______5 N. 8 W........................ 5.50 1 S. 141 W.......................... 13.00 6 16........................ 7.00 2 S. 12 W.......................... 22.00 7 "24........................ 6.0 3 S. 11 W.......................... 16.00 8 " 81". 7.00 4 S. 181 W......................... 27 00 9 15 E...................... 10.00 5 8.23 W.......................... 22.00 10......................... 9.00 11 " 16* W....................... 2.00 to point of beginning of tract No. 8. to post N. H. T. 7 S. 1, of tract No. 7. NOTE.-The field-notes of the tracts Nos. 6, 7, 11, 12, & 13 cannot be given in full until the survey of their boundaries is.completed. NOTE TO sURVeY OF TRACT No. 3.-The deputy surveyor, E. H. Dyer, run the east boundary of this tract with such courses and distances that in his judrment will follow the line of separation between tuie, or marsh, and dry land, as it existed at the date of the grant from Governor Alvarado to John A. Sutter. The United States vs. Sutler. 931 U. S. SURVEYOR GENERAL'S OFFICE, San Francisco, Cal., Mlay 11th, 1863. I certify that this plat exhibits the changes called for by the decrees of the U. S. dist. court, dated May 4th and 7th, 1863. The tracts Nos. 9, 11, 12 and 13, have been located in this office from data on file therein, and in the decree. Tract No. 7 was located from map in "Exhibit Coleman, No. 1." The back lines of tract No. 6 are approximate lines only. The lines of tract No. 7 and all the back lines of the new tracts should be surveyed, the courses established, and correct areas calculated, so that the true area of tract No. 12 may be ascertained and located in accordance therewith., E. F. BEALE, U. S. Surv. Gen'l, Cal. Approved May 11, 1863. OGDEN HOFFMAN, Dist. Judge. OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR CALIFORNIA. I, E. F. Beale, surveyor general of the United States for the State of California, by virtue of the power vested in me by law, do hereby certify that the preceding and hereunto annexed page, num, bered from one inclusive, exhibit a true, full, and correct copy of the original plat, on file in this office, of the official survey of the rancho "New Helvetia," finally confirmed to John A. Sutter; the said survey having been executed under the decree of the U. S. district court, dated 7th of November, 1861. In testimony whereof, I have hereunto signed my name offi[SEAL.] cially, and caused my seal of office to be affixed, at the city of San Francisco, this 17th day of February, 1863. E. F. BEALE, U. S. Surveyor General for California. Examined and found correct. Chief Clerk. U. S. DISTRICT COURT, Northern Dist. Cal., ss: Substitution of Amos Pratt, as att'y pro se., in place of Heslep and Wright. In the matter of exceptions of Amos Pratt to the survey of New Helvetia rancho, No. 319. UNITED STATES ) V. JOHN A. SUTTER. We hereby consent that the name of Amos Pratt, the above excel 932 The United States vs. Sutter. ant, shall be substituted in the record as attorney pro se., in his place and stead. And the cl'k of said dist. court is hereby authorized to enter such substitution of record. As witness our hands this 4 day of March, A. D. 1863. AUGUSTUS M. HESLEP, Att., &c. SELDEN S. WRIGHT, Att'y, &c. Endorsed: Filed March 4, 1863. W. H. CHEVERS, Clerk. Exceptions of Amos Pratt to official survey. 1516 The United States district court, northern district of California. THE UNITED STATES vs. 319. JOHN A. SUTTER. ) Amos Pratt, interpleader in the above-entitled case, nov comes into court, and excepts to the location or survey of the New Helvetia grant as set forth and shown on the plat of the original survey, approved by the surveyor general of the United States for California, on the 17th of February. 1863, as made in conformity to a decree of court, November 7th, 1861, which plat was filed in this court the twenty-fifth of February, eighteen hundred and sixty-three. The said Pratt excepts to the said survey on the ground that the said survey is made partly outside of the boundaries of the said grant as fixed and determined by the U. S. land commissioners, and confirmed by the Supreme Court of the United States. The legal construction of the boundary of the said New Helvetia grant, as confirmed by the Supreme Court of the United States 1517 of the United States, is a line of latitude from the Sacramento to the Feather river, touching the southern base of the Three Buttes, and the Feather river is the eastern boundary from the said northern boundary to its junction with the Sacramenrto river on hle south, and a line of latitude touching the most extreme southern point of land, bounded on the east by the Feather river, and west by the Sacramento river, is the southern boundary of the said grant, and the Sacramento river is the western boundary of the said grant. But the said survey is mostly outside of the said limits. The said Amos Pratt therefore prays the court to set aside the said survey, and order the surveyor general to make the survey of the said. grant within the limits of the said grant as confirmed by the Supreme Court of the United States. (Interpleader) AMOS PRATT, in person. Residence, Sacramento. Endorsed: Filed March 4, 1863. W. H. CHEVERS, Clerk. The United States vs. Sutter. 933 1518 Objections of John A. Sutter to survey, filed Feb'y 25, 1863. District court of the United States for the northern district of California. THE UNITED STATES ) vs. No. 319 dist. c't.-No. 92 L. C. JOHN A. SUTTER. ) John A. Sutter, the claimant in this case, objects and excepts to the survey of the lands confirmed, the plat of which survey made by the surveyor general of the United States for the State of California, was filed in this court on the 25th of February, 1863, upon the following grounds: 1. That it is not in conformity to the grant, nor to the decree of confirmation entered in this court. 2. That it is not in conformity to the map and deposition of Vioget. 3. That it improperly includes a large quantity of land lying north of the American river and along the east bank of the Sacramento river, between the junction of the latter with the Feather and American rivers, (being the tracts designated on the plat as Nos. 3 and 9, and part of No. 6,) no part of which land is included in the decree of confirmation, nor within the boundaries specified and shown 1519 in the map of Vioget, and in the depositions referred to in the decree of confirmation, and more land is included than is warranted by the order of this court under which this survey is made. 4. That the land marked on the plat Tract No. 12 is erroneously surveyed as the Yuba City tract-the northern line of which, accordiing to the deed thereof made by this claimant to Samuel Brannan alnd others on the 27th of July, 1849, commences at a point below and nearly opposite the mouth of the Yuba river, and the said tract extending down Feather river four miles, and having a depth from the river of one mile. 5. That the Tract No. 13, which was intended to include land forming part of Hock Farm, includes at the southern extremity thereof a portion of land which never formed a part of Hock Farm, and excludes all the buildings and improvements of Hock Farm, all of whi(ch lie north of the northern line of said " Tract No. 13." 6. That this survey excludes all of Hock Farm, excepting only about 1,100 or 1,200 acres, though the place known as Hock Farm was a large tract of land situated on the west bank of Feather river, 1520 and extending southward along said west bank a distance of six miles from the line afterwards known as the south line of the Yuba City tract above referred to, and having a depth from the river of four miles, the said Hock Farm being the same place settled upon and occupied and improved by the claimant in the year 1843, and co - tinuously occupied by himself and his family, and those claiming under him, down to the present time, and being the same place of which a por - tion is now occupied by himself as a homestead; the said tract known 934 The United States vs, Sutter. as Hock Farm having for its northern and southern boundary lines nearly the same lines which are represented on said plat as the northern and southern lines of township 14 N. 12, 3 E. And that by said survey all the buildings and improvements made on said tract by the claimant in the year 1843, and thereafter, as also his homestead where he now resides with his family, are excluded. That the said survey is not in conformity to the opinion and man.date of the Supreme Court of the United States. CROCKETT & CRITTENDEN, Atty' sfor Sutter. 1521 Endorsed: Filed March 27th, 1863. W. H. CHEVERS, Clerk. Exceptions of R. Gelston to survey. In the district court of the United States for the northern district of California. THE UNITED STATES ) vs. District court No. 319.-Land com. No. 92. JOHN A. SUTTER et al. In this case Roland Gelston, intervenor, objects and excepts to the confirmation of the survey last filed herein upon the following grounds: First. That said survey does not conform to the decision of the Supreme Court of the United States already rendered in this case. Second. That the lands included in said survey are not taken in that compact form which the nature of the case requires. 1522 Third. That the law included in said survey, instead of being taken in the compact form which the nature of the case allows, is located in various strips and parcels along the banks of navigable streams and rivers, contrary to the laws and land regulations of both the United States and Mexico, and, as this intervenor believes, to his great prejudice. ELIHU JOHNSON, Att'yfor R. Gelston, intervenor. Endorsed: Filed April 6th, 1863. W. H. CHEVERS, Clerk. 1523 Petition, affidavit, and order allowing W. T. Coleman to intervene. U. S. district court. THE UNITED STATES V. SNo. 319. JOHN A. SUTTER. And now comes William T. Coleman, by his attorney, John B. Williams, and asks that an order be entered allowing him to intervene in The United States vs. Sutter. 935 the above-entitled cause for the protection of his interest, and that he be allowed to file exceptions to the official survey of the land confirmed, (a certified copy plat of which survey was filed Feb'y 25, 1863,) and,to take testimony in support thereof. And the said Coleman avers and is ready to prove that he owns a tract of 476 acres situated on the east bank of the Feather river under and by virtue of two several deeds made by John A. Sutter on the 12th day of February, 1850, and the 5th day of April, 1850, respectively, which tract has been unjustly excluded from the said official survey. JNO. B. WILLIAMS,.Atty for Coleman. 1524 NORTHERN DISTRICT OF CALIFORNIA, 8s: Henry B.Williams, of said district, being duly sworn, deposes and says that he is attorney in fact of William T. Coleman, who is now, and since September, 1856, has been, absent from the State of California; that said Coleman claims and owns a tract of land in townships XIII and XIV north, range 3 east, of the extent of 476 acres, and bounded on the west and south by the Feather river; that said Coleman owns and claims the said tract under the grant of 11 leagues made by Governor Alvarado to John A. Sutter, which grant has been confirmed by the federal courts; that a survey was made of the land confirmed under instructions from the surveyor general of the United States for California, which survey included the land claimed and owned by said Coleman, and was approved by said surveyor general in 1860; that deponent thereupon supposed that the said approved survey was final, and was not aware that any further action was required in behalf of said Coleman until a long while subsequent, 1525 when he learned that said approved survey had been examined by the district court and rejected as erroneous, and a new survey directed to be made, which survey, on examination, is found not to include the lands claimed and owned as aforesaid by said Coleman. H. B. WILLIAMS. Sworn to and subscribed before me this 30 day of March, A. D. 1863. HENRY C. HYDE, U. S. Com'r. At a stated term of the district court of the United States of America for the northern district of California, held at the court-room in the city of San Francisco on Monday, the sixth day of April, in the year of our Lord one thousand eight hundred and sixty-three. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES V. No. 319. JOHN A. SUTTER. ) On reading and filing the foregoing petition and affidavit, and 1526 on application of John B. Williams, attorney for Wm. T. Cole. man, it is ordered that said Coleman be allowed to intervene 936 The United States vs. Sutter. herein, file his exceptions to the official survey, and take testimony in support thereof, on or before the twentieth day of April instant. Endorsed: Filed April 6th, 1863. W. II. CHEVERS, Clerk. Order allowing E. Woodruff and L. Q. Packard to intervene. At a stated term of the district court of the United States of America for the northern district of California, held at the court-room in the city of San Francisco on Monday, the 6th day of April, in the year of our Lord one thousand eight hundred and sixty-three. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES V. No. 319. JOHN A. SUTTER. 1527 This day came Edwards Woodruff and John Q. Packard, by their attorney, and filed the affidavit of the said Woodruff herein, and thereupon moved the court for leave to intervene and file their exceptions to the survey returned and filed in said cause by the surveyor general of the United States on the 25 February, 1863; and thereupon it is ordered that said motion be granted, and that said Packard. and Woodruff have leave to intervene and file exceptions to said survey, and to take proof in support thereof; and it is further ordered that the proofs to be taken by them be closed oil or before the 21st day of April, 1863, on which day said cause is set for hearing. Endorsed: Filed April 6th, 1863. W. H. CHEVERS, Clerk. Affidavit of E. Woodruf. District court of the United States for the northern district of California. THE UNITED STATES) vs..No. 319, dist. c't. —No. 92 L. C. JOHN A. SUTTER. J Edwards Woodruff, being sworn, says that he, deponent, 1t28 and John Q. Packard, as tenants in common, are the owners and holders of all the right, title, or interest which the claimant, John A. Sutter, ever had in or to the greater portion of that certain tract of land situated on the west bank of Feather river, and known as " Hock Farm," the said tract being bounded on the north by the southerly line of the tract known as the Yuba City tract, extended westwardly four miles from said river, (a part of which is designated on the plat of survey returned and filed in this court by the surveyor general of the United States, on the 25th day of February, 1863, as "Tract No. 12,") and runs thence southwardly along The United States vs. Sutter. 937 Feather river six miles, and extends back and westwardly therefrom four miles to a line parallel with said river, and which forms the westerly boundary line of said';Hock Farm." That the title of said Packard and deponent thereto is derived through deeds of conveyance from said John A. Sutter and Ann Sutter, his wife, and the trustees of said Ann Sutter, and through 1529 Sheriffs deeds on sales under execution or decrees, and became vested in deponent and said Packard prior to the 27th of February, 1860. That with the exception of a small piece of land at the southeast corner of said tract (being a portion of the parcel marked on said plat " Tract No. 13,") the whole of said " Hock Farm" is excluded from said survey. That the said John Q. Packard is absent from the State of California, and deponent is his agent. Wherefore deponent prays that he and the said Packard be allowed to intervene herein for the protection of their rights, and be permitted to object to and contest said survey. EDWARDS WOODRUFF. Sworn and subscribed before me this 1 day of April, A. D. 1863. W. H. CHEVERS, U. S. Corn. Endorsed: Filed April 6, 1863. W. H. CHEVERS, Clerk. Order allowing Ann Sutter to intervene. At a stated term of the district court of the United States of 1530 America for the northern district of California, held at the court-room in the city of San Francisco on Monday, the 6th day of April in the year of our Lord one thousand eight hundred and sixty-three. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES v. 319. JOHN A. SUTTER. 5 This day came Ann Sutter, by her attorney, and filed affidavit of the said Ann Sutter, and thereupon moved the court for leave to intervene and file her exceptions to the survey returned and filed in said cause by the U. S. sur. gen'l for Cal. on the 25th day of February, 1863; and thereupon it is ordered by the court that said motion be, and is hereby, granted, and that she have leave to 1531 intervene and file exceptions to said survey, and to take proof in support thereof; and it is further ordered that the proofs to be taken by her be closed on or before the 21st instant, on which day said cause is set for hearing. Endorsed: Filed April 6, 1863. W. H. CHEVERS, Clerk. 938 The United States vs. Sutter. Affidavit of Ann Sutter. District court of the United States for the northern district of California. THE UNITED STATES vs..No. 319, dist. c't.-No. 92, land comm'r. JOHN A. SUTTER. ) Ann Sutter, being sworn, says that she is the wife of John A. Sutter, the claimant in this case; that on the 1st day of July, A. D. 1850, Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, claiming under her said husband, by deed of that date, conveyed to her, for her own exclusive and separate use, a certain tract of land known as Hock Farm, situate on the west 1532 bank of Feather river, and described as follows: commencing on Feather river on the southeasterly side of the town known as Yuba City; thence running down following the meanders of said river the distance of six miles; thence westerly, in a straight line, the distance of four miles; thence northerly and parallel with Feather river to the point of line parallel with the southerly side of said Yuba City; thence easterly to the place of beginning. That she still owns a portion of said described tract of land, which portion includes the buildings and improvements of Hock Farm, and constitutes the homestead of herself and family, and is occupied as a homestead. And that by the survey of the land claimed in this case, a plat of which has been returned by the surveyor general of the United States for California, and filed in this court on the 25th of February, 1863, the said buildings and improvements, and the greater part of the land held and claimed by her, are excluded. Wherefore she prays that she be allowed to intervene for 1533 the protection of her interest and be permitted to contest said survey. ANN SUTTER. Sworn and subscribed before me this 3rd day of April, A. D. 1863. S. J. STABLER, I~SEA"L.] "Clerk of Sutter (ounty, California. Endorsed: Filed April 6, 1863. W. H. CHEVERS, Clerk. Objections of E. Woodruff and J. Q. Packard to survey of which plat wasfiled Feb. 25, 1863. District court of the United States for the northern district of California. THE UNITED STATES vs. No. 319, dist. c't.-No. 92, L. C. JOHN A. SUTTER. J John Q. Packard and Edwards Woodruff, intervenors, object and except to the survey made by the surveyor general of the United The United States vs. Sutter. 939 States for California of the land confirmed in this case, the plat of which survey was filed in this court on the 25th of February, A. D. 1863, on the following grounds: 1534 1st. That under the decree of confirmation in this case the mandate and opinion of the supreme court, and the map and depositions referred to in the decree of this court, the eleven leagues of land confirmed to the claimant are to be surveyed two leagues south of the American river, and the remaining nine leagues on the banks of Feather river, and between the mouth of said river and the northern boundary of the tract as described in the grant. 2nd. That said nine leagues of land, so to be located on Feather river, should be in one connected body, and should include the lands first elected by said claimant to be taken by him as part of the land granted, whether such election were made by occupation or by alienation. 3rd. That said survey is not so made, but includes a large quantity of land lying on the Sacramento river, between the mouth of Feather river and the mouth of the American river; excluded almost the whole of the land lying on the west bank of the Feather river, and known as the Hock Farm, which was occupied and cultivated 1535 by the claimant from the year 1843; includes lands not alienated by the claimant until long after his occupation of Hock Farm, and is composed and made up of detached and separate parcels of land. 4th. That the whole of the tracts of land designated on said plat as Tract No. 3 and Tract No. 9, and part of the lanb desgned Tract No. 6, are improperly included in said survey. 5th. That the parcel of land marked on the plat "Tract No. 12," and which was intended to include the parcel of land known as the "Yuba City tract," conveyed by said Sutter to Samuel Brannan and others, by deed dated July 27th, 1849, is erroneously survey, in this, that the land described in said deed commences at a point below and nearly opposite the mouth of Yuba river, extends down said river four miles, and has a depth back from the river of one mile. 6th. That the parcel of land designated on said plat as "Tract No. 13," which was intended to include no land which did not form part of the tract known as "Hock Farm," includes at its southern 1536 extremity a portion of land which never formed any portion of "Hock Farm." 7th. That the said tract of land hereinbefore referred to as "Hock Farm" is a tract of well known and established boundaries as follows: commencing on Feather river, on the west bank, at the point where the southerly line of the Yuba City tract strikes said river, (that is to say, not far from where the line designated on said plat as the northern line of township No. 14 strikes the river;) thence running down and following the meanderings of the river six miles; thence westerly, in a straight line, the distance of four miles; thence northerly and parallel with Feather river to the southern line of said Yuba City tract extended westwardly four miles from said river; and thence to the place of beginning; that said tract, called Hock Farm, 940 The United States vs. Sutter. was settled upon and occupied by said Sutter in 1843, and such occupation continued without interruption until 1850; since which time a portion of it has been occupied by him, and the remainder by these intervenors and others, deriving title from him. Yet that by said survey the whole of said tract, excepting only a small portion, 1537 less than 1,000 acres, (being part of the land designated on said plat "Tract No. 13") is excluded; and said survey also excludes the place where all the buildings and improvements of said Sutter were made in 1844, and where his homestead has ever since been. 8th. That by the errors committed by including the lands specified in the foregoing objections, Nos. 4, 5, and 6, the portion of Hock Farm to be included in the survey under the order of this court directing this survey to be made is greatly diminished, to the injury of these intervenors. 9th. That the said survey is erroneous in so far as it varies and departs from the survey heretofore made in this case, and the plat of which was returned and filed in this court on the 27th of February, A. D. 1860; with which survey these intervenors were content, and were willing to have it confirmed by the court, though it did not give to them all the land to which, as they are advised, they were and are justly entitled. 10th. That said survey is erroneous in including in tracts Nos. 3, 9, and 6, more land than could be properly included under the 1538 order of this court, under which said survey was made; the said tracts embracing a large quantity of land which was "overflowed" at the time of the grant, and was excluded by its terms. TULLY R. WISE, Att'y for Intervenors. Endorsed: Filed April 7, 1863. W. H. CHEVERS, Clerk. Exceptions of Ann Sutter to survey. District court of the United States for the northern district of California. THE UNITED STATES vs. No. 319, dist. c't.-No. 92, L. C. JOHN A. SUTTER. ) Ann Sutter, intervening, objects and excepts to the survey of the land confirmed in this case made by the surveyor general of the United States, and the plat of which was filed in this court on the 25th of February, 1863, on the following grounds: 1. That said survey excludes almost the whole of the tract 1539 of land known as Hock Farm, which was settled, occupied, and improved by the claimant in the year 1843, and excludes all The United States vs. Sutter. 941 the buildings and improvements on said tract, through the same have been held and occupied by the claimant and his family continuously since the year 1843, and constitute part of the homestead of the claimant and this intervenor and their family. 2. That the first tract elected by the claimant to betaken by him as part of the land granted to him, with the exception of a tract of two leagues lying south of the American river, and a certain other tract lying in the angle formed by the Yuba and Feather rivers, leased by the claimant to Cordua and Flugge on the 13th January, 1843, was the said tract known as the Hock Farm, and the same should be first included, after said two tracts, in any survey made of the land granted and confirmed to the claimant. TULLY R. WISE, For Intervenor. Endorsed: Filed April 7, 1863. W. I. CHEVERS, Clerk. 1540 Exceptions of TV. T. Coleman to offcial survey. In the district court of the United States for the northern district of California. THE UNITED STATES ) v. \ No. 319. JOHN A. SUTTER. ) And now comes William T. Coleman. by his attorney, John B. Williams, and excepts to the survey made under instructions from the surveyor general of the U. S. for California, a certified copy plat of which survey was filed in the clerk's office February 25, 1863. And the said Coleman avers1st. That the said survey is erroneous, because it excludes a tract of land of the extent of 476 acres, lying on the east bank of the Feather river, and within the limits of the land granted and Cconfirmed, which tract is owned by the said Coleman, under deeds made by said Sutter in the year 1850: whereas the said survey includes a large tract of land lying south of the American river, and not included within the limits of the land granted and confirmed, and also includes Tract No. 12, under a deed subsequent in date. 1541 2d. That the land confirmed herein is the landgranted on the 18 June, 1841, to John A. Sutter, by Governor Alvarado, said (ranted land being of the extent of eleven square leagues, as shown by his map, and bounded on the north by the Three Peaks and the parallel of 390 41' 45", and on the south by the parallel of 38~ 49' 32" north latitude, the surplus over eleven square leagues to revert to the nation. That the map referred to in the grant has been lost or abstracted from the archives, but that the map filed in the case, and marked "A, P. L.," bearing the certificate of John J. Vioget, dated Jan. 29, 1854, and filed March 8, 1855, is substantially a copy 942 The United States vs. Sutter. of the map which is referred to in the grant. That the map marked "B, P. L.," is not a substantial copy of the map referred to in the grant, the same having been altered materially. That the land solicited by Sutter, and shown by the rrap "A, P. L.," extended from a line marked "lindero latitud norte 380 41' 32"" to a line marked "lindero latitud norte 390 33' 45"," differing from the grant, which locates these lines, respectively, eight miles 1542 further north, to wit: 390 41' 45" and 38~ 41' 32", thus modifying the map to that extent. 3d. That the northern and southern lines of the granted land are to be determined, not by observation to ascertain where such parallels of latitude will fall, but by ascertaining where, upon the ground, the four lines, called parallels by Vioget, will fall, with reference to the natural and artificial objects shown upon his map marked "A, P. L.;" and that when the line marked "lindero latitud norte 38~ 41' 32"" on Vioget' s map, or the south line of the land solicited is ascertained on the ground, the line of 38~ 49' 32' or the south line of the grant can be ascertained with the assistance of the scale found on Vioget's map, and that in like manner the north line of the grant may be ascertained. 4th. That the line known as lindero latitud 38~ 41' 32", or south line of the land solicited, is identical with the south line of the official survey where it intersects the east bank of the Sacramento river at the place marked "beginning." That the south line of the grant, or line 38~ 49' 32', would fall some distance north of the American 1543 river, and that between the south line of the grant and the south line of Vioget' s map has been wrongfully located nearly 14,000 acres of land, which should rightfully have been located within the limits of the grant, and on both sides of the Feather river south of the Yuba. 5th. That soon after obtaining the 11-league grant, Sutter established and occupied Hock Farm, on the west bank of the Feather river, and also established colonists on the east bank of Feather river, and subsequently made sales of various tracts within the limits of that grant exceeding in quantity the whole quantity granted. That by reason of the location of the 14,000 acres and upwards south of the south line of the grant, this intervenor has been deprived of his land, and the residence of Sutter at Hock Farm has also been excluded. 6th. That at the time Sutter petitioned for and obtained his grant for eleven leagues, as aforesaid, he had established a fort south of the American river which was not included within the limits of his grant, but was included within the limits of the Vioget map. That after he had colonized and settled the 11-league grant he applied 1544 to Gov. Micheltorena for a grant of the sobrante or surplus' of the land shown by the Vioget map, being twenty-two leagues, and obtained a grant for the same, but that said grant was rejected as invalid by the Supreme Court of the United States, by which court the 11-league or Alvarado grant was confirmed. That the surveyor general of the U. S. for California, in locating the land so confirmed, The United States vs. Sutter. 943 has surveyed upwards of 14,000 acres within the limits of the reject; ed Micheltorena grant, and excluded the like quantity from the confirmed Alvarado grant. That this 14,000 acres, if included within the limits of the confirmed grant, would satisfy to a great extent all the sales made by Sutter under the Alvarado title, and would enable the surveyor to locate the eleven leagues in a tolerably compact form. 7. That the said survey is erroneous, because under the theory of the opinion of the court upon which was entered the order for a new survey, which survey is shown by the plat filed Feb'y 25, 1863, tracts 12 and 13 should form but one tract, and should include the residence of Sutter; that is to say, that after deducting the quan1545 tity of 476 acres from tract 12, and locating that quantity so as to include within the survey the tract claimed by this intervenor, the remainder of tract 12 should be made part of tract 13, so as to include the residence of Sutter, and thus increase the area of the Hock Farm tract. 8th. That tract No. 7 has been located and surveyed by virtue of a deed to one T. J. Green; that this deed was produced by the U. S.; that no one has intervened asking that the interest of said Green or those holding under him shall be protected, and that, consequently, that tract should not be included in the survey, but its area added to the Hock Farm tract. Wherefore this intervenor prays that said survey be set aside as erroneous, and that an order be entered directing a new survey, which shall establish the south line of the grant eight miles north of the south line of the survey objected to; and that the 14,000 acres now included south of the south line of the grant be surveyed and located so as to include Hock Farm and the lands conveyed by Sutter between the 3d standard north and the south line of the grant; or that the survey be modified so as to include the 476 acres claimed by this 1546 intervenor by taking that quantity from tract No. 12 or tract No. 7. JNO. B. WILLIAMS, Att'y for Coleman. Endorsed: Filed April 15, 1863. W. I. CHEVERS, Clerk. Dep. of Jno. Bidwell, on part of intervenor, Coleman. In the district court of the United States for the northern district of California. THE UNITED STATES In land cases.-District court No. 319.-Land JOHNA. SUTTER. com. No. 92. JORN A. SUTTER. Be it remembered that on this 18th day of April, A. D. 1863, at the city of San Francisco, in the district aforesaid, Wm. H. Chevers, a commissioner duly appointed by the circuit court of the United States for the districts of California to take acknowledgments of bail 944 The United States vs. Sutter. and affidavits, and also to take depositions of witnesses in 1547 civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared John Bidwell, a witness produced in behalf of intervenor, W. T. Coleman, in the above-entitled cause, now pending in said court under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Jno. B. Williams, esq. for int., Coleman; W. H. Sharp, U. S. att'y, for the U. S.; Crockett & Crittenden, for intervenors, Woodruff et al. and J. A. Sutter; E. Johnson, esq., for int., Gelston. Questions in behalf of the int., W. T. Coleman. Question 1st. Are you the same John Bidwell who has been heretofore examined in this case? Ans. I am. 2. You have stated in a former deposition that Vioget made two maps for Sutter, one of which accompanied Sutter's petition to Gov. Alvarado for the grant of eleven leagues, while the other was retained in Sutter's possession. Did you ever see these two 1548 maps? And if so, state under what circumstances. Ans. The one in Sutter's possession I saw in 1843, I am positive, and I may also have seen it at an earlier day; I saw it often enough to recognise it in its main features. Now I wish to state why I am positive of having seen it in 1843. I had occasion to draw a map for one C. W. Flugge of lands adjacent to Sutter's grant on the north, and I referred to the map in Sutter's possession to ascertain the northern boundary of Sutter's grant, which was laid down on that map as 390 33' 45". Capt. Sutter also desired me to make a copy of the map in his possession at or about the same time, but not having paper sufficiently large to make a copy on the same scale, he sent it to Capt. Vioget, then living in Yerba Buena, who made him a copy, but on a reduced scale, for want of paper of the proper size. This copy, made by Vioget, was copied by me for Capt. Slitter the same year, except that the Sacramento river was laid down on the copy which I made, nearer, as it should be, to the Butte mountains. 1549 In 1844 I visited Monterey, in company with Capt. Sutter; while there I made a map of the Sacramento valley, by request of Micheltorena, then governor of California; and while making that map I had occasion to refer to Sutter's and other maps in the archives for data in reference to the boundaries of grants. 3. Look at map marked "A, P. L.," "Exhibit to deposition of John J. Vioget, March 8th, 1855," on file in this case, and state whether this is the map made by Vioget, on a reduced scale, which you have referred to in your previous answer. Ans.' This is the map, or a correct copy of it, to the best of my recollection. 4. Look at the map marked "Exhibit V," filed in this case Jan'y The United States vs. Sutter. 945 6th, 1861, and state whether it is the map you made for Micheltorena, referred to in your previous answer. Ans. I recognise it as a copy of that map, in all its main arid essential features. 5. In the map of the Sacramento valley, just referred to, the southern line of the land of Sutter is marked "Latitud del norte 1550 38~41'32."" Was the map of Sutterin the archives so marked? Ans. I am quite certain that it was, for I had no other data upon which to make it. 6. Did the map of Sutter in the archives show a line of latitude for the northern boundary? If so, please state it. Ans. It did. It was the parallel of 390 33' 45". 7. Was the map which Sutter retained in his possession bounded on the north and south by lines of latitude, the same as shown by map A, P. L.? Ans. It was. 8. Look at the map marked B, P. L., filed in this case March 15th, 1855, as an exhibit to the deposition of Juan B. Alvarado, and state wherein the lines of latitude showing the north and south 1551 boundaries of the tract delineated differ from the map which Sutter retained in his possession, and from the map which accompanied his petition to Alvarado, and which you saw in the archives in Monterey in 1844? Ans. From referring to those maps in 1843 and 1844, as before stated, and also in referring to the copy of the map of the Sacramento valley, made by me in 1844, " I perceive a discrepancy on the map marked B, P. L.," to wit: the line marked on it " 39~ 32' 45"," should "be 390 33' 45,"" and the line marked "38~ 49' 32" should be " 38~ 41' 32." Cross-examination. Questions by counsel for intervenor, Woodruff et al. and John A. Sutter et at. Ques. 9. In what year did you first arrive in California, and when did you first become acquainted with the tract of land known as Hock Farm? Ans. I arrived in California in November, 1841. I first saw the place known as Hock Farm early in the spring of 1843, and I have known it over since. 1552 10. When you were first at Hock Farm, what houses, corrals, or other improvements did you find upon it, and how was it occupied, if at all? Ans. There were two adobe houses, one large corral, and several smaller ones, a field fenced in by a ditch; they were grazing upon the farm nearly all the stock, amounting, in all, to 3,000 or 4,000 head, belonging to Capt. Sutter. There was a Frenchman by the name of Sicard living on the place, who was working for Sutter by the month. I took charge of the farm the same year as agent for Sutter, and built for Sutter the same adobe house in which he now lives; I [REC. CCLVIII, D. T. 1862.]-60 946 The United States vs. Sutter. was there most of the time till the next year, and the place was occupied continuously by persons in the employ of Sutter from that time forxward. 11. When you were first at Hock Farm, did the houses and improvements which you found there appear to have been then very recently erected, or, from their appearance, would 3 ou infer that they had been erected several years before? 1553 Ans. From the appearance of the buildings at that time, I would have judged them to have been made one or two years. 12. Are the houses which you have described the same as are at present occupied by Sutter and his family? Ans. The houses which I found there in 1843 have been neglected and tumbled down, but the additional building which I constructed myself is still there, and is the one now occupied by Sutter and his family. 13. State whether or not the said buildings and improvements occupy a central position on the tract known as Hock Farm? Ans. They do occupy a central position with respect to its frontage on the Feather river, upon the tract then known as Hock Farm. 14. Designate, if you can, upon the plat of the official survey filed in this case Feb'y 25th, 186-.. the location of the buildings and improvements on the said place when you first saw it in 1843. 1554 Ans. The houses 1 found there were about a half or threequarters of a mile south of the place marked Sutter's houses in the official plat, which last-named house is the one I built in 1843, and in which Sutter and his family now reside. 15. How long did Capt. Sutter continue to pasture his herds upon the place known as Hock Farm from the time you first knew it? Ans. All the time, until he gradually disposed of his cattle and herds from time to time. I bought about 200 head of mares in 1851, which came from Hock Farm; he then had many more left. 16. What district of country was it, which in 1843 or earlier, was generally known and recognized in that vicinity as Hock Farm? Ans. It was all that tract of land bordering on the west bank of Feather river from the parallel of 390 33' 45'," marked as the northern boundary of Sutter's grant, and down alohg Feather 1555 river towards its mouth, as far as the land was eligible and suitable for farming and grazing purposes. There was no boundary on the west that I know of; it extended from the Feather river indefinitely back towards the Sacramento river, until it reached the tule and swamp lands. 17. State whether or not the following described piece of land was in 1843, and yet is, high land upon which there is no tule or swamp land not subject to annual overflow from the river, to wit: "commencing on the west bank of Feather river, three miles above the house which you built in 1843; thence running six miles down the river, having a depth of four miles westwardly from the river;" and state whether or not the land so described was in 1843, and has been ever since, generally recognized and known as a part of the Hock Farm tract. The United States vs. Sutter. 947 Ans. The lands embraced within the question is high and eligible, and not subject to overflow from the annual rise of the river, with the exception, perhaps, of a certain slough which may traverse 1556 a small portion of it about west from the Hock Farm house; and also the first low bend of the river, beginning about onehalf a mile below the said house, and represented on the official map as an island, which it is not, except at very high water. It was, in 1843, a part of what was then considered as the Hock Farm, and was so known as long as I was personally familiar with the Hock Farm. I know nothing about recent lines and distinctions. Sutter always claimed that tract as part of Hock Farm. 18. On which side of Feather river did Sutter settle families under the Alvarado grant? Did he settle any family under that grant on the west side of Feather river, within the limits of the tract you have described as Hock Farm? Ans. He settled all that he did settle on the east bank of the river. He never settled any on the west bank of that river. 19. Do you know whether or not Sutter made sales of any portion of the tract you have described as Hock Farm prior to 1849? 1557 Ans. I do not think he did. If he did, it is not within my knowledge. 20. Can you state whether or not prior to the year 1849, and up to that period, Capt. Sutter repeatedly and publicly declared that the tract you have described as Hock Farm was intended by him as a home for himself and his family? Ans. I do not know of any particular declarations made by him. From my intimate acquaintance with him, and my knowledge gained thereby. I know that it was his intention to make Hock Farm his permanent homestead or residence. 21. Do you know whether or not, from 1843 to 1849, the fact was notorious and well known in that vicinity that Sutter intended Hock Farm to be his permanent home, and that it was his purpose to reserve it from sale and settlement under the Alvarado grant for the use of himself and family? Ans. Such was myunderstanding, and I believe it was gene1558 rally so understood among his acquaintances during that period. Deposition closed. J. BIDWELL. Subscribed and sworn to this 18th day of April, A. D. 1863, before me. W. H. CHEVERS, U. S. Corn. [Counsel for intervenor, Roland Gelston, objects to the answer to ques. 20 and 21, upon the ground that the questions are leading; the answers thereto are hearsay, and only founded upon the opinions of witness, the right to except, at the close of the deposition, having been reserved.] Endorsed: Filed April 21, 1863. W. H. CHEVERS, Clerk, 948 The United States vs. Sutter. Dep. of C. Bielawski, for intervenor, Coleman. In the district court of the United States for the northern district of California. TEE UNITED STATES 1 THE UNITED STUTES In land cases.-Dist. court No. 319.-ILand corn. JOHN A. SUTTER. N. 92. 1559 Be it remembered that, on this 20th day of April, A.., 1863, at the city of San Francisco, in the district aforesaid, before me, Wm. H. Chevers, a commissioner duly appointed by the circuit court of the United States for the district of California to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States pursuant to the acts of Congress in that behalf, personally appeared Casimir Bielawski, a witness produced in behalf of intervenor, W. T. Coleman, in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Jno. B. Williams, esq., for int., Coleman; W. H. Sharp, U. S. att'y, for the U. S.; Crockett & Crittenden for intervenors, Woodruff et al.; and J. A. Sutter, E. Johnson, esq., for int., Gelston. Questions in behalf of the intervenor, Coleman. Question 1st. What is your name, age, place of residence, and occupation? 1560 Ans. My name is Casimir Bielawski; my age is 48 years; I reside in San Francisco; I am principal draughtsman in the office of the U. S. surveyor general, and have been employed as draughtsman in that office for the last nine years. My duties are to examine the field-notes of the U. S. deputy surveyor returned to the office of surveys of public lands and private grants; compile the maps therefrom, which, after they are approved by the surveyor general, are under my personal supervision. 2. Examine the plat now shown you, marked Exhibit Coleman No. 2 to be attached to this deposition, and state who made it, ihnd what it represents topographically. Ans. I made the plat myself, from maps of official surveys in the office of the U. S. surveyor general. It represents the true course of the Sacramento, Feather, Yuba, American, and Bear rivers, and Honcut creek. 3. Examine map A, P. L., filed in this case March 8th, 1855, as an exhibit to the deposition of Vioget, and state whether you 1561 have located on Exhibit Coleman No. 2 the lines shown on said map A, P. L., marked, respectively, "Lindero latitude norte 38c 41' 32""; " latitud 380 45' 42" "; latitud 39~ 1' 45" "; and' Lindero latitud norte 39~ 331 45" ". Ans. I have. I located the line marked "Lindero latitud norte The United States vs. Sutter. 949 38~ 41' 32 " in two different ways, first by the difference of latitude between that line and the junction of the Sacramento and Feather rivers on map A. P. L., and second, by the difference of latitude between said line and the junction of the Sacramento and American rivers on map A. P. L. I located the line "latitude 38' 45' 42" " also in two ways and in the same manner. The line marked "latitud 390 1' 45"" is represented by a due east and west line on Exhibit, Coleman No. 2, passing through the junction of the Sacramento and Feather rivers, and precisely as it is represented on said map A. P. L. The line marked "Lindero latitud norte 390 33' 45"" on map A. P. L., in two different ways, first, by the difference of latitude 1562 between that line and the junction of the Sacramento and Feather rivers on map marked A. P. L.; second, by the difference of latitude between said line and the junction of Feather and Yuba rivers on map A. P. L. In locating these lines I paid no regard to the lines of latitude actually ascertained by observation, but merely as lines laid down on map A. P. L. and crossing the Sacramento and Feather rivers at certain points. e 4. What is the distance in a north and south direction between the line marked on A. P. L. "Lindero latitud norte 38~ 41' 32"" and the line on the same map marked " Lindero latitud 390 33' 45 " as shown by the scale of map A. P. L. Ans. Fifty-one and one half miles. 5. Judging by the scale on map A. P. L. can you tell what mile is used in estimating the miles of latitud on said map. Ans. I find after a careful examination of the map A. P. L. that one minute of difference of latitude represents one English 1563 statute mile. 6. State the actual distance north and south between the lines marked respectively "38~ 41' 32" " and "39~ 33' 45" " as you have located tliem on. Exhibit, Coleman No. 2. Ans. The distance in a due north direction between the two lines marked "A A" on Exhibit, Coleman No. 1, is fifty-two miles and seventeen chains, and the distance between the two lines marked "B B" is fifty-one miles and fifty-three chains. 7. Examine the espediente of John A. Sutter and the grant to him from Governor Juan B. Alvarado, both on file in this case, and locate on Exhibit, Coleman No. 1, the lines expressed in the third condition of the grant, to wit: " 390 41' 45" north latitud," and " 38~ 49' 32" north latitud." Ans. I located them in two different ways, drawing the lines " C C" eight miles north of the lines "AA," and the lines "D D" eight miles north of the lines "B B," eight miles being the difference in northing between the lines shown as linderos on the map A. P. L. and the lines of the grant as expressed in the third 1564 condition thereof. 8. Assuming the point of beginning of the official survey tt 950 The United States vs. Sutter. represent correctly where the line on map A. P. L. marked' "Lindero latitud norte 380 41' 32"" crosses the Sacramento river, where would the south line of the grant 380 49' 32" cross the same river. Ans. At the end of course 151 of the survey of tract No. 3, shown on the plat filed Feb'y 25th, 1853, and three and three-eighths miles due north from the junction of the American and Sacramento rivers Cross-examination. Questions by counsel for intervenor Woodruff et al. and J. A. Sutter et al. Ques. 9. Examine the map now shown to you marked Exhibit E. W. P., state what it is, and by whom it was made. Ans. It is a copy of the northern part of the plat of the official survey filed Feb'y 25th, 1863, as far as it regards the boundaries of tracts Nos. 2, 4, 12 and 13, and the topography of the country 1565 thereabout. It was copied by myself fully from the plat of survey of the New Helvetia rancho on file in the U. S. surveyor general's office, and is a complete copy of that portion thereof with the exception of the portion of Hock Farm tract, shown by the yellow lines on the Exhibit. 10. State whether or not the yellow lines on said exhibit correctly represents the tract of land embraced within the following description, to wit: commencing at a point on the west bank of Feather river three miles above the house which is marked Sutter's house on the plat of the official survey in this case, filed February 25th, 1863, thence running six miles down the river, and having a depth of four miles westwardly from the river. Ans. Substantially it does. Deposition closed. C. BIELAWSKI. Subscribed and sworn to this 20th day of April, A. D. 1863, before me, W. H. CHEEVERS, U. S. Com. Counsel for intervenor Gelston objects to all the foregoing testimony, from question 1 to question 8, both inclusive, as being 1566 wholly irrelevant, the U. S. Supreme Court having located the southern boundary of the grant south of Sutter's fort. Endorsed: Filed April 21, 1863. W. H. CHEVERS, Clerk. Exhibit, Coleman.No. 1.-Deeds and Map. Deed book 3, page 228. Know all men by these presents that I, John H. Sutter, of Hock Farm, in the State of California, in consideration of three thousand The United States vs. Sutter. 951 dollars to me paid by George H. Beach, of San Francisco, in the same California, the receipt whereof is hereby acknowledged, do by these presents give, grant, bargain, sell and convey unto the said George H. Beach, his heirs and assigns, all that parcel or tract of land situated in the State of California and described and measuring as follows, to wit: commencing on the west side of Dry creek at a point sixty chains due north of its intersection with Feather river; thence running at right angles due east one hundred and sixty 1567 (160) chains; thence running at right angles due south to a point ten chains south of the southerly boundary of "Plumas city," as now surveyed and laid out on the map thereof, made by Nathan Scholfield; thence running at right angles due west to the east bank of Feather river; thence running northerly along the east bank of Feather river to the intersection of the said Dry creek therewith; thence running westerly across said creek and along the northerly and easterly bank of Feather river to a point on said Feather river due west of the place of beginning; and thence running due east to the point of beginning, to have and to hold the above-granted premises, with the privileges and appurtenances thereto belonging, to the said George H. Beach, his heirs and assigns, to his and their use and behoof forever. And I, the said John I. Sutter, for myself and my heirs, executors and administrators, do hereby covenant with the said George H. Beach, his heirs and assigns, that I am lawfully seized in fee of the afore-granted premises; that they are free from all incumbrances; that I have good right to sell and convey the same to the said George H. Beach as aforesaid, and that I will, and my heirs, executors and administrators shall, warrant and defend the same 1568 to the said George H. Beach, his heirs and assigns forever against the lawful claims and demands of all persons. In witness whereof I, the said John A. Sutter, and Ann Sutter, my wife, in token of her relinquishment of all right in and to dower in the above-granted premises, have hereunto set our hands and seals SEAL] this fifth day of April, in the year of our Lord eighteen hundred and fifty. J. A. SUTTER. [SEAL.] N. SUTTER, nee DUBELD. [SEAL.] Signed, sealed and delivered in presence ofCHARLES FENDERICK, WM. W. TINKER. STATE OF CALIFORNIA, County of Yuba, ss On this ninth day of July, A. D. one thousand eight hundred and fifty, personally appeared before me, Alfred Lawton, recorder in and for said county, William W. Tinker, a subscribing witness to the foregoing indenture, to me known, who, being by me duly sworn, did depose and say that he resided in Marysville in said county, that he knew John A. Sutter and Ann his wife, the persons described in and who executed the within conveyance; that he was present and saw 952 The United States vs. Sutter. the said John A. Sutter and Ann his wife sign, seal and exe1569 cute the same, and that the said John A. Sutter and Ann his wife acknowledged that they executed the same freely and voluntarily for the uses and purposes therein mentioned, whereupon the said William W. Tinker became a subscribing witness thereto. SEAL. ALFRED LAWTON, ^SEAL.r l.ecorder. Recorded this ninth day of July, A. D. one thousand eight hundred and fifty, at one o'clock and forty minutes, at the request of George II. Beach. ALFRED LAWTON, Recorder. I, Dewitt C. Benham, recorder of Yuba county, do hereby certify that the foregoing pages, from pages one to page six hundred and seventy-three, inclusive, of this book contain the record of deeds transcribed by me from the books which were kept by Stephen J. Field as alcalde of Marysville or Yubaville, and from the books kept by Philip W. Keyser as alcalde of Eliza, and from the books kept by Alfred Lawton as recorder of Yuba county, pursuant to the act of the legislature of the State of California entitled " An act concerning the records of Yuba county," approved April 19, 1856. In witness whereof I hereto set my hand and official seal the fifth 1570 day of January, A. D. one thousand eight hundred and fiftyseven. D. C. BENHAM, [SEAL.] Recorder Yuba County, California. STATE OF CALIFORNIA, County of Yuba, ss: I, W. H. Wickersham, recorder of Yuba county, hereby certify that the foregoing is a full, true, and correct copy of a deed, with the certificate of acknowledgment, now of record in my off., in deed book No. 1, pages 429 and 430, of the transcribed records of Yuba county. I further certify that. the foregoing is a full and correct copy of the certificate of D. C. Benham, late recorder of said county, to the transcribed records aforesaid. Witness my hand and official seal this 16th day of December, A. D. 1861. W. H. WICKERSHAM, [SEAL.] Recorder of Yuba County, California. J. H. WICKERSHAM, Deputy. (Here follows map, page 1,570.) 1571 This indenture, made this twelfth day of February, in the year eighteen hundred and fifty, between John A. Sutter, of Hock, in the territory of California, of the first part, and William The United States vs. Sutter. 953 Fetter, William Warren Bennett, Job Hazard Watson, George Wilson, Thomas M. Lindley, Robert A. Pearis, Wilham Grove Deal, of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of fifteen hundred dollars to him in hand paid, the receipt whereof is hereby acknowledged, and the further sum of twenty-one hundred dollars to him in hand paid, the receipt whereof is hereby acknowledged, and the further sum of twenty-one hundred dollars, secured to be paid by promissory notes of the said party of the second part, hath bargained and sold, and by these presents doth bargain and sell unto the said parties of the second part, their heirs and assigns, the following described piece, parcel, or tract of land, situate in the territory of California, and bounded and described as follows, to wit: beginning at a point on the east bank of the Feather river, about three quarters of a mile below the town of Eliza, which point is marked by a white oak standing in a slough, near which are several trees blazed; thence down 1572 said Feather river one mile; thence N. 750 E. for one mile; thence at right angles for one mile; thence in a direct line to the place of beginning, to have and to hold said premises unto the said parties of the second part, their heirs and assigns, forever. And the said party of the first part, for himself, his heirs, executors, and administrators, doth covenant to, and with the said parties of the second part, their heirs and assigns, that the title to the foregoing premises he will forever warrant and defend against the lawful claim or claims of all and every person claiming or to claim the whole, or any part thereof, from, by, or him, them, or either of them. In testimony whereof the said party of the first part hath hereunto set his hand and seal the day and year aforesaid. J. A. SUTTER. [SEAL.] By HENRY A. SCIOOLCRAFT, His Attorney in Fact. Signed, sealed and delivered in the presence of us —(the words about fourths of a mile below interlined)GEO. S. FAKE. A. HUDLEY. TERRITORY OF CALIFORNIA, 1573 District of Sacramento, ss: On this 20th day of February, A. D. 1850, before me came Henry A. Schoolcraft, and acknowledged that he signed the foregoing deed as attorney for J. A. Sutter, and the said instrument to be his free act and deed as such attorney for J. A. Sutter, for the purpose therein expressed. Given under my hand the date aforesaid. S. C. HASTINGS, Chief Justice of the Supreme Court of the State of Calitornia. Recorded this 27th day of Marysville, at 11 o'clock and 3 minutes a. m., at the request of W. Grove Deal. 954 ITe United States vs. Sutter. I hereby certify that the foregoing is a full, true, and correct transcript of the record of a deed and of the certificate of acknowledgment thereto, as the same are recorded in the office of the recorder of Yuba county, in book No. 4 of deeds, in page 168. [SEAL. Witness my hand and official seal this 8th day of August, SEAL.J] 1862. L. T. CRANE, Recorder Yuba Co., Cal. Endorsed: Filed April 21, 1863. W. H. CHEVERS, Clerk. 1574 (Here follows maps 1 and 2, page 1574.) 1575 Dep. of A. W. Fon Schmidt,for intervenors Woodruff, Sutter et al. In the district court of the United States for the northern district of California. THE UNITED STATES) THE UNITED STATES In land cases, dist. court, No. 319.-Land com., Vs. N 2 JOHN A. SUTTER o.2. Be it remembered that on this 20th day of April, A. D. 1863, at the city of San Francisco, in the district aforesaid, before me, Win. H. Chevers, a commissioner duly appointed by the circuit court of the United States for the districts of California to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes depending in the courts of the United States, pursuant to the acts of Congress in that behalf, personally appeared A. W. Von Schmidt, a witness produced in behalf of int. Woodruff, Sutter et al., in the above-entitled cause, now pending in said court, under the acts of Congress to ascertain and settle the private land claims in the State of California, who, being duly sworn, testified as follows: Present: Crockett and Crittenden for int. Woodruff, Sutter et al.; W. H. Sharp, U. S. att'y; J. B. Williams, for int. Coleman; E. Johnson, for int. Gelston. 1576 Questions in behalf of the int. Woodruff, Sutter et al. Question 1st. Are you the same A. W. Von Schmidt who has been heretofore examined in this case? Ans. I am. 2. Examine the paper now shown to you purporting to be a certified copy of a deed from H. E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, Ann Sutter, which paper is marked Exhibit, Von Schmidt, A No. 6, and state whether or not you have heretofore made a survey of the lands described in said deed. Ans. I have. 3. Examine the map now shown to you marked Exhibit E. W. P., The United States vs. Setter. 955 annexed to the deposition of Bielawski, and state whether or not the yellow lines on said map marked "portion of Hock Farm tract" include substantially the same lands embraced in said deed. Ans. It does. 1577 4. Examine the plat of the official survey filed in this cause on the 25th February, 1863, and state whether or not the most southerly four hundred acres of the tract marked No. 13 on the said plat are included within the Hock Farm tract, as described in the deed "Exhibit, Von Schmidt, A No. 6." Ans. They are not. 5: Examine the said official plat and state approximately the number of acres of tule and swamp lands contained in the tracts thereon designated as tracts Nos. 3, 6, 8, 9, and 10. State also approximately how much high land, if any, there is in each of the said tract not subject to overflow from the rivers; also state your means of knowledge. Ans. I made an official survey in this case in Sept. and Oct., 1859, copy plat of which was filed in this case Feb'y 27th, 1860; at the time of making said survey I found the tules approached much nearer to the Sacramento river than is shown in this last official survey. I estimate the tule lands in tract No. 3 as being in excess of 1578 that survey made by me of six hundred.acres, that is to say, tract No. 3 on this last official survey contains about six hundred acres of tule lands more than was embraced in my survey. Tract No. 6, on the east side of the river, contains 704 acres of tule and swamp lands; on the west side nearly all of it is swamp and tule land, embracing about 1,440 acres. Tract No. 8 has about 320 acres of tule and swamp land. Tract No. 9 about the same amount. Tract No. 10 I don't recollect sufficiently about. My knowledge of the character of the lands is derived from the surveys I have made in 1859, and prior thereto. From the junction of the American and Sacramento rivers, along the Sacramento and Feather rivers, up to the south line of tract No. 5, the average width of the high land fit for agricultural and grazing purposes, not subject to annual overflows, is about one-quarter of a mile. I mean by tule and swamp lands, those lands subject to annual overflow, and covered with tules. 1579 The tule and swamp lands to which I refer lie to the eastward of the high land along the banks of the river, and is several miles in width. 6. State, if you can approximately, about how many acres of tule and swamp land are included in tract No. 1, on the plat of the last official survey, and how many acres of high land there is included within the said tract, not subject to overflow from the rivers, in case there were no levees or other artificial protection? Ans. With regard to the quantity of tule and swamp lands in tract No. 1, to the best of my recollection there were about 500 acres. In regard to the part that was overflowed by freshets from the river, previous to the construction of levees, I should judge, to the best of my recollection, that about one-half of it was subject to overflow; 956'Tlhe United States vs. Sutter. I mean the western half lying upon the borders of the American and Sacramento rivers, including the site of the city of Sacramento. Cross-examination waived. Deposition closed. A. W. VON SCHMIDT. Sworn to and subscribed this 20th day of April, A. D. 1863, 1580 before me. W. H. CHEVERS, U. S. Corn. Endorsed: Filed April 21, 1863. W. II. CIIEVERS, Clerk. Exhibit, " Von Schmidt, A No. 6,"to dep. of A. W. Von Schmidt. Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and J. McDougal, to Ann Sutter. Deed. Whereas Ann Sutter, the wife of John A. Sutter, of Hock Farm, Sutter county, State. of California, has heretofore executed with her said husband in conveying away to sundry persons, by deed of bargain and sale, large portions of their joint property, the proceeds of which sales in and to the sole and exclusive use of her said husband, and whereas the said Ann Sutter has also agreed to unite with her said husband in conveying all their joint property, both real and personal, situate, lying and being in the said State of California, 1581 to the grantors in this deed, as indicated by the deed of even date with these presents, executed by the said Ann Sutter and her said husband to Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, and to which deed particular reference will be had. The parties to this instrument hereby adopting its provisions and obligations. Now this indenture witnesseth that we, Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, parties of the first part, for and in consideration of the premises, and one dollar to us in hand paid by the said Ann Sutter, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said Ann Sutter, in sole and exclusive property, and for her sole, separate and exclusive use, all that tract or parcel of land known as the Hock Farm, situate and lying on the west bank of Feather river, and described as follows: comnmencing on Feather river, on the southeasterly side of the town known as Yuba city; thence running down, following the meanders of said river the distance of six miles; thence thence westerly in 1582 a straight line the distance of four miles; thence northerly and parallel with Feather river to the point of line parallel with the southerly side of said Yuba city; thence easterly to the place of beginning, together with all the personal property of every descrip The United States vs. Sutter. 95T tion on said Hock Farm as conveyed to us by the deed before referred to, and the said grantors hereby convey to the said Ann Sutter such title to said real and personal estate as they have acquired by the deed before referred to, executed by her and her husband, John A. Sutter, and none others. In testimony whereof the parties of the first part have hereunto set their hands'and affixed their seals this first day of July, one thousand eight hundred and fifty. H. E. ROBINSON. [SEAL.] JOHN S. FOWLER. [SEAL.] EUGENE F. GILLESPIE. [SEAL.] JOHN McDOUGAL. [SEAL. Signed, sealed and delivered in presence ofC. B. ZABRISKIE. J. C. ZABRISKIE. STATE OF CALIFORNIA, County of Sacramento, ss: I hereby certify that on this the first day of July, A. D. 1850, 1583 personally appeared before me, a notary public in and for said county, Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, known to me to be the persons described in and who executed the annexed conveyance, and acknowledged that they executed the same freely and voluntarily for the purposes and uses therein mentioned. Witness my hand and notarial seal this the day and year aforesaid. W. S. JACKSON, Notary Public. STATE OF CALIFORNIA, (Cotnty of Sutter, ss On this 9th day of July, A. D. 1850, personally appeared before me, a deputy recorder in and for said county, Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, known to nle to be the persons described in and who executed the above instruIentt, and duly acknowledged the same to be their free and voluntary:ct for the uses and purposes therein mentioned. In testimony whereof I hereunto set my hand and seal the day and (late aforesaid. SEAL.hT~ 0G. W. LAWRENCE, [ ~SEAL.] Deputy Recorder for Sutter Co. 1584 Came into office for record July 9th, A. D. 1850, 9 o'c'lk a. nm., and duly recorded in book A, fol. 81 and 82. G. W. LAWRENCE, Deputy Recorderfor Sutter Co. STATE OF CALIFORNIA, Courtly of Sutter, ss: I, S. J. Stabler, county recorder in and for the above-named county and State, do hereby certify the annexed to be a true, full, and cor 958 T1ie United States vs. Sutter. rect copy of the original now on record in deed book "A," records of Sutter county, at pages 95 and 96 as transcribed. In testimony whereof I have hereunto set my hand and af[SEAL.] fixed the official seal, this sixteenth day of February, A. D. 1863. S. J. STABLER, Recorder. By S. S. RUSSELL, Deputy Recorder. Endorsed: Filed April 21, 1863. W. H. CHEVERS, Clerk. 1585 Certified copy of deed, Sutter et al. to Robinson et al. John A. Sutter and Ann Sutter to Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and J. McDougal. Deed. Whereas I, John A. Sutter, of Hock Farm, Sutter county, State of California, party of the first part, have been for many years in possession of all that tract or body of land situate and lying and being in the State of California, and within the following boundaries, to wit: commencing on the north of the Three Peaks, or what is commonly known as Sutter's Buttes, at a point on the east bank of Sacramento river, in latitude thirty-nine degrees forty-one minutes and forty-five seconds, (390 41' 45"') thence running with the parallel of said latitude to the Rio de las Plumas or Feather river; thence down and along the meanders of said Rio de las Plumas or Feather river to its junction with Sacramento river; thence up and along the eastern bank of said Sacramento river to the place or point of beginning; and which said lands are embraced in a grant from the Mexican gov1586 ernment, bearing date Monterey, 18th day of June, one thousand eight hundred and forty-one. And whereas, notwithstanding his possession of said land, and h's grant therefor, various persons have, from time to time, intruded thereon, and are continuing to do so, and taking possession of various portions thereof, and asserting a claim thereto to the grant, annoyance and injury of the said John A. Sutter. And whereas the said John A. Sutter is anxious to be released from the trouble, expense, and vexation of maintaining his lawful rights to the land aforesaid. "' And whereas Henry E. Robinson, John S. Fowler, Eugene F. Gillespie, and John McDougal, parties of the second part, are willing to accept the said title and to assume upon themselves the labor, expense. and trouble of maintaining the lawful right and and title of the said John A. Sutter to the aforesaid tract of land, preserving and securing it against all intruders and all persons whatsoever; and whereas, as a further consideration of this conveyance, the said parties of the second part agree and hereby bind themselves to pay over to the said John A. Sutter one-sixth part of the nett proceeds of the 1587 said tract or parcel of land aforesaid, (with the reservation hereinafter to be stated,) when, and as the same may be, from The United States vs. Sutter. 959 time to time, sold; and whereas, also, Ann Sutter, the wife of the said John A. Sutter, is willing to become a party to this conveyance, and by it relinquish all her right, title, and interest in and to the said tract or parcel of land before described, expressly upon the condition, and none other, that the said parties of the second part shall convey to her, the said Ann Sutter, such title as they may acquire by this deed, to her sole separate and exclusive use forever, all that portion of the said tract or parcel of land known as Hock Farm, lying and being on Feather river and fronting on the west side thereof, running the distance of six miles along and on said river, and four miles back therefrom, &c., &c., a more full description of which will appear by a reference to a deed this day executed to her, the said Ann Sutter, by the parties of the second part. And whereas the said parties of the second part, in further consideration for this deed, have also agreed to pay, at or before the sealing and delivery of this deed, the sum of six thousand dollars, the receipt whereof by the said John A. Sutter is hereby acknowledged. 1588 Now this indenture witnesseth that, for and in consideration of the premises above mentioned, I, John A. Sutter and Ann Sutter, his wife, of Hock Farm, Sutter county, State of California, of the one part, have granted, bargained, sold, aliened, remised, released, and confirmed, and by these presents do fully, freely, and absolutely grant, bargain, sell, alien, remise, release, and confirm unto Henry E. Robinson. John S. Fowler, Eugene S. Gillespie, and John McDcugal, parties of the second part, and their heirs and assigns forever, all that tract or lot of land as heretofore described, being the same as granted by the Mexican government, bearing date on the 18th day of June, one thousand eight hundred and forty-one, lying on Feather and Sacramento rivers, together with all and singular the hereditaments and appurtenances to the said tract or parcel of land and premises belonging, and in anywise appertaining; together with all stock, utensils, and other things belonging on said tract or parcel of land, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof. And also all the estate, right, title, interest, property, possession, claim, 1589 and demand whatsoever of the said parties of the first part, and each of them, of, in, and to the same, or any part or parcel thereof. And the said John A.. Sutter and Ann, his wife, do hereby convey, grant, and assign unto the parties of the second part whatever right, title, and interest they may have in and to any other tract or parcel of land which they may have or possess in the State of California. But the said John A. Sutter excepts and reserves front this conveyance such parts and parcels of land as has been granted or sold heretofore by him, and for which he has executed his deeds, which were for valuable considerations, and which has been paid to him, and which deeds have been duly and properly recorded. To have and to hold the said tract and parcel of land and premises, and all interest in other lands hereby conveyed, with all their rights, members and appurtenances unto the said parties of the second part, 960 The United States vs. Sutter. their heirs and assigns forever, to the only proper use and behoof of the parties of the second part, their heirs and assigns forever. In testimony whereof the said parties of the first part and parties of the second part have hereunto set their hands and affixed 1 90 their seals this first day of July, in the year of our Lord one thousand eight hundred and fifty. J. A. SUTTER. [SEAL.] A. SUTTER, nee Dubold. [SEAL.] H. E. ROBINSON. [SEAL.] JOHN S. FOWLER. [SEAL.] EUGENE F. GILLESPIE. [SEAL.] JOHN McDOUGAL. [SEAL.] Signed, sealed and delivered in presence ofC. B. ZABRISKIE, J. C. ZABRISKIE, for the signature of J. A. Sutter. ROBINSON FOWLER, GILLESPIE MCDOUGAL. Witness on the part of Ann SutterG. W. LAWRENCE, WM. W. WARNER. STATE OF CALIFORNIA, County of Sacramento, ss:I hereby certify that on this the first day of July, A. D. 1850, personally appeared before me, a notary public in and for said county, John A. Sutter, H. E. Robinson, John S. Fowler, Eugene F. Gillespie and John McDougal, known to me to be the persons described in, and who executed, the annexed conveyance, and acknowledged that they executed the same freely and voluntarily for the purposes and uses therein mentioned. Witness my hand and notarial seal, this the day and year 1591 aforesaid. B. S. JACKSON, [SEAL.] Notary Public. STATE OF CALIFORNIA, County of Sutter, ss On this 8th day of July, A. D. 1850, personally appeared before me, a deputy recorder in and for said county, John A. Sutter, known to me to be the person described in, and who executed, the annexed conveyance, and acknowledged the same to be lis free and voluntary act for the uses and purposes therein mentioned. In testimony whereof I hereunto affix my name and* seal the day [E and date aforesaid. [SE^A~L.] G. W. LAWRENCE, Deputy Recorder for Sutter Co. * The official seal not yet executed. G. W. L. The UJlited States vs. Sutter. 961 STATE OF CALIFORNIA, County of Sutter, ss: On this 8th day of July, A. D. 1850, personally appeared before me, a deputy recorder in and for the said county, Ann Sutter, (wife of John A. Sutter,) known to me to be the person whose name 1592 is subscribed to the annexed conveyance as a party thereto, and being examined by me privately, and apart from her husband, and having the contents of the said conveyance fully explained to her, she acknowledged that she executed the same freely and voluntarily, without fear or compulsion, or undue influence of her husband, and that she did not wish to retract the execution of the same. In testimony whereof I hereunto set my hand and affix my* privSEAL ate seal, as yet no official seal provided, the day and date aforesaid. G. W. L. G. W. LAWRENCE, Deputy Recorder per Sutter Co. * The official seal not yet executed. G. W. L. Came into office for record July 8th, A. D. 1850, at 110 7 o'cl'k a. m,, and duly recorded in book "A," fol. 70, 71, 72 and 73. G. W. LAWRENCE, Deputy Recorder. STATE OF CALIFORNIA, County of Sutter, ss: I, S. J. Stabler, county recorder in and for the above-named 1593 county and State, do hereby certify the annexed to be a true, full and correct cony of the original now on record in deed book "A," at pages 84, 85,:6 and 87, Sutter county records, as transcribed. In testimony whereof, I have hereunto set my hand and [SEAL.] affixed the official seal this sixteenth day of February, A. D. 1863. S. J. STABLER, Recorder. By S. S. RUSSELL, Deputy Recorder. Endorsed: Filed April 21, 1863. W. H. CHEVERS, Clerk. Exhibit U. S. X. Y. Z. Gelston, Warbass, Heyl and Morse, to John A. Sutter..Deed. Know all men by these presents that we, Roland Gelston, Thomas A. Warbass, William S. Heyl, and John F. Morse, of Sacramento, California, for and in consideration of the sum of fifty thousand dollars to us in hand paid before the ensealing hereof by John [REc. CCLVIII, D. T. 1862.]-61 962 The United States vs. Sutter. A. Sutter, of Hock Farm, California, the receipt whereof is hereby acknowledged, have bargained, granted, sold, and quit1594 claimed, and by these presents do bargain, grant, sell, and quitclaim, unto the said John A. Sutter all our right, title, and interest in and unto the following tract of land in California, commencing at the SE. corner of Norristown; thence in a direct lihe to the lower boundary of the town of Sutter, (late Suttersville,) on the Sacramento river; thence down said Sacramento river to the lower or southern boundaries of Sutter's land, on said Sacramento river, just above the town of Webster, at or near a slough; thence in a direct line along said boundary line to a point where a line from the SE. corner of Norristown, running S. 110 45' E, would intersect said southern line; thence in a direct course to the SE. corner of Norristown, the place of beginning. Also to any and all lands lying south of the American river that had not been conveyed by said Sutter, or laid out as towns, previous to the 28th day of January, A. D. 1850. Reserving out of the above premises the "right of way" for water to supply Sacramento city through any lands mentioned in this instrument that may be found between said Sacramento city and the town of Brighton. To have and to hold the said quitclaimed premises with all the privileges and appurtenances, rents, and hereditaments thereunto belonging; and we hereby agree 1595 to and with the said Sutter, his heirs and assigns, that we will warrant and defend the premises against the lawful claims and demands of all persons claiming by, from or under us, provided the said John A. Sutter carries out all agreements found in writing made by us regarding said lands; said agreements are expressly understood to be leases with privilege of purchase and one bond for a deed to G. Wallher only and no others. Witness the hands and seals of the parties this the 28th day of November, one thousand eight hundred and fifty. ROLAND GELSTON, [SEAL.] THOMAS A. WARBASS, WILLIAM S. HEYL, By their attorney in fact, JOS. CLOUGH. [SEAL.] Signed, sealed and delivered in the presence ofPETER BURNS. RICHARD A. CHASE. STATE OF CALIFORNIA, County of Sacramento: Be it remembered that, on the 29th day of November, A. D. 1850, personally appeared before me, Merit Welton, a notary public in and said county, Joseph Clough and Roland Gelston, known to me to be the person who executed the within instrument, and acknowledged that the same was their free act and deed for the purposes therein mentioned. The United States vs. Sutter. 963 1596 Given under my hand and private seal, having no notarial seal, the day and year aforesaid. [SEAL.] MERIT WELTON, Notary Public. Recorded Feb'y 15. 1851, 11 o'c. a. m. STATE OF CALIFORNIA, City and County of Sacramento: I, Jared Irwin, county clerk and ex-officio recorder in and for the city and county of Sacramento, hereby certify the above and foregoing to be a full, true, and correct copy of an instrument of record in book F of deeds, pages 344, 345, and 346, records of Sacramento county. Witness my hand and official seal this the 1Sth day of April, A. D. one thousand eight hundred and sixty-three. { Inter. revenue [SEAL.] JARED IRWIN, certificate. Co. Clerk and Ex-officio Recorder. By CHAUNCEY STEWART, Deputy. Roland Gelston to John A. Sutter. 1597 Know all men by these presents that on the thirtieth day of November, A. 1). 1850, Roland Gelston did execute a deed of conveyance of a certain parcel ot land in Sacramento county unto John A. Sutter, and in the description of said parcels of land two errors were committed; the first was in the commencement of said description, and reads "commencing at the southeast corner of Norristown," whereas it should read "commencing at the southwest corner of Norristown;" the second was a little further on in said description, and reads "thence along the line of Norris, until they intersect the eastern line of D. and S. Sizer." whereas it should read "thence along the line of Norris until they intersect the western line of D. and S. Sizer." Now be it known that the said errors were merely clerical, and that the land truly bargained for and sold was hereunto set their hands and seals this the 25th day of June, 1851. ROLAND GELSTON. [SEAL. ] By his att'y in fact, JOS. CLOUGH. JOHN A. SUTTER. [SEAL. By his att'y in fact, JOHN S. FOWLER. Signed and sealed in presence of usWM. GWYNN. A. M. ZABRISKIE, STATE OF CALIFORNIA, County of Sacramento. 1598 Be it remembered, that on this 12th day of August, A D. 18 personally appeared before me, a notary public in and for? 964 Thie United States vs. Sutier. county aforesaid, Roland Gelston, by his att'y in fact, Joseph Clough, and John S. Fowler, knowing them to be the attorneys of the parties they respectively represent, who severally acknowledged to me that they respectively signed, sealed, and delivered the within instrument of writing as their voluntary act and deed for the uses and purposes therein mentioned. In witness whereof I have hereto set my hand and private (hav[A] ing no notarial) seal the day and year above mentioned. ^[,^SEAL. ]IJAMES C. ZABRISKIE, Notary Public. Recorded August 12th, 1851, at 3 o'clock p. m, left by J. Clough. STATE OF CALIFORNIA, City and County of Sacramento. I, Jared Irwin, co. clerk and ex-officio recorder in and for the city and county of Sacramento, State aforesaid, hereby certify the above and foregoing to be a true, full, and correct copy of an instrument of record in book G of deeds, pages 477 and 478, records of Sacramento county. 1599 Witness my hand and official seal this the 18th day of April, A. D. 1863. SEAL.] JARED IRWIN, Co. Clerk, and Ex-oficio Recorder. { Inter. revenue By CHAUNCY STEWART, certificate. Deputy. Endorsed: Filed April 21st, 1863. W. H. CHEVERS, Clerk. Opinion modifying survey, Feb'y 25, 1863. NITED STATE No. 319, on survey "Nueva Helvetia, May a JOHNA. 2nd, 1863. JOHN A. SUTTER. ) A survey having been made under a previous order and returned into court, further exceptions to it have been filed. In the opinion heretofore delivered, it was considered that the dotted lines on the diselio extending along the margins of the Sacramento and Feather rivers were intended to indicate the boundaries of the tract solicited, and to show the line of demarcation between the arable land on the borders of those streams and the tular and marsh land excepted from the grant. 1600 It was only on this supposition that any eastern external boundary for the tract could be found. It was accordingly expressly directed that in the survey of the Grimes tract the line of demarcation as found upon the ground The UnitId States vs. Sutter. 965 should be carefully followed, and only such lands as were found within it included in the survey. It is not now suggested that this has not been done. The lands lying immediately above this tract, marked Nos. 6, 8 and 9 on the official survey which were conveyed by Sutter, by deeds, the dates of which gave them priority of location, were directed to be surveyed according to the calls of the deeds It was not then certainly known that any considerable quantity of tular land would thus be included, and all parties acquiesced in the arrangment under the idea that sufficient of the 11 leagues confirmed to Sutter would be left to permit the other claims, and particularly that for Hock Farm, to be satisfied. Since making this order, new parties have intervened and exhibited to the court deeds which, on the principle of the decision, entitled them to have the lands so conveyed included in the 1601 survey. An order to that effect was accordingly made, and it has resulted that the Hock Farm tract has been greatly diminished in extent and has been divided into two separate parcels, neither of which includes the house and settlement of Sutter. The claimant of that tract now interposes an objection to the survey. It is shown by the proofs, and the fact is undisputed, that at an early day, and perhaps before the date of his grant, Gen'l Sutter established an extensive rancho upon the western bank of Feather river. He built an adobe house, corrals, &c., fenced in fields, and placed upon it stock to the number of several thousands. In 1843 or'4, Maj. Bidwell took charge of this farm as agent for Gen 1 Sutter. He built an adobe house, which still remains, and it has been occupied continuously by persons employed by Sutter ever since. Since the occupation of the lands in the vicinity of the fort by the city of Sacramento, Hock Farm has been the residence of Sutter and his family, and for many years it has been notoriously known as such throughout the State. In 1850 he executed a deed to certain 1602 parties of the whole tract, but received back from them, by a, conveyance of even date, a deed to his wife for a portion 6 miles in length along the river by four in depth. The reasons therefor assigned in the opinion heretofore delivered for including New Helvetia in the survey apply with nearly equal force to Hock Farm. The same difficulties are also presented. If the whole tract be included up to its generally reputed limits at the time Maj. Bidwell first visited it, it would more than absorb the entire eleven leagues confirmed to Sutter. Even if the smaller but entirely arbitrary limits described in the deed to Mrs. Sutter be adopted, the tract would be of the extent of 24 square miles, and many persons holding under deeds from Sutter, and placed by him on the land as colonists and in the direct execution of the trust on which the grant was made, would be excluded. The claimant therefor of the tract, sensible of these difficulties, makes no such pretension; but he asks that the surveys of the tracts along tL 966 The United States vs. Sutter. Sacramento and Feather rivers may be confirmed within the limits of the dotted lines on the diseno, i. e., that they may not 1603 include any part of the tular land excluded from the grant. The quantity so excluded will be availalle to increase the lands assigned to Hock Farm without exceeding the 11 leagues to which Sutter's entire claim has been restricted. It appears to me that to this the representative of the Hock Farm tract is entitled. The U. S. interpose no objection, and tho' the exclusion of the tulare land in the grant may perhaps have been intended as much to confer a privilege as to impose a restriction on Sutter, and did not in all probability refer to the low bottom lands about the fort and included within the dotted lines, yet, when it is sought to pass those lines and include tulare lands, and thereby exclude from the survey the Hock Farm tract which by so emphatic an election and so ancient and notorious an occupation Sutter has located, it has seemed to me that the owner of the latter tract has a right to object. It is also urged that the tract marked on the survey as tract No. 7 may also be excluded, and thus a further quantity be obtained to satisfy the claims of Hock Farm. 1604 This tract is conveyed by a deed of Sutter, the date of which, on the theory of location adopted by the court, entitled the land covered by it be included in the survey. But the deed was not presented to the court with any idea of asserting a right to have the land so included. It was obtained from the records and offered by the U. S. to prove an election by Sutter of lands at the north of the grant, and to induce the court not to include in the survey the land adjacent to Sutter's fort. Since the passage of the act of 1860, abundant opportunity has been afforded to all persons interested to intervene in the proceeding; no one has appeared to represent this tract or to claim that the land should be included. It is said to be in great part barren and unavailable for cultivation. The counsel of the U. S., by whom the deed was originally presented, offers to withdraw it, or to stipulate that it may be considered as taken off the files. By adding the quantity of land included in this tract, together with that excluded as tular lands, from the tracts along the river to the Hock Farm tract, there will be assigned to the latter about 1605 3,500 acres less than one square league, certainly a very small portion of the large extent of country notoriously known and considered the "Hock Farm of Gen'l Sutter." The present owner of the latter, aware of the extraordinary and almost hopeless difficulties that attend any conceivable mode of settling the location of this grant, signifies his willingness to accept this arrangement in the hope of terminating the protracted litigation. The counsel of the U. S. assents to it, and no party has appeared to oppose it, nor does it seem that any substantial injury will be done if the tract be, as is said, larren and without much value. I have therefore, after some hesitation, determined to accede to the suggestion. That some lands The UnUed States vsa Sutter. 96 ought to be assigned to Hock Farm on the principles adopted by the court is evident. It is also clear that that farm ought not to be allowed to absorb the entire quantity confirmed, nor even so much of it as will leave unsatisfied the claims of the early colonists whom Sutter, before the change of flags, and in elecution of the trust on which his grant issued, settled on the land. The more recent conveyances obtained from Satter by Americans, frequently as 1606 mere speculations, sometimes on adequate consideration, and all under the idea confidently entertained alike by Sutter and the purchasers that he was entitled to thirty-three leagues of land, appear to possess less equities. Certainly it would be unjust to treat such conveyances as constituting an election of the land to be taken under the eleven league grant, and to exclude entirely the rancho and homestead so early selected, so long occupied, and so notoriously known as the residence and farm of Gen'l Sutter. The quantity of land that, by the arrangement proposed, will be assigned to Hock Farm is no small extent when compared with the ordinary dimensions of a Californian rancho, and the mode suggested seems on the whole as fair and as just a way of settling this most perplexing case as can be adopted. There has also been interposed a claim by Wm. T. Coleman for a tract conveyed to one Beach. This by the date of the deed is entitled to be included; no objection is made to modifying the survey so as to embrace it. The representative of the Hock Farm tract has sold a small 1607 piece of land on the opposite or east bank of Feather river. This he desires to be included in the survey for the protection of the grantee, as the only effect of so doing will be to diminish pro tanto the extent of the Hock Farm tract, and as the counsel of the U. S. asserts, I see no objection. The quantity of land thus found to remain for the Hock Farm tract must be measured in a compact form in one entire tract, and so as to include the houses and establishment of Gen'l Sutter. I have thus, I think, finally decided this protracted and most embarrassing case. With no clear rules of law to guide me; unable to discern' accurately what even equity and justice demanded; embarassed by the careless improvidence which has led Sutter to convey away more land than he even supposed he possessed, and far more than the quantity to which by the unexpected decision of the Supreme Court he has been restricted, with the external boundaries of the tract vague and undefined, and even the original papers in some respects ambiguous and contradictory, I have been compelled to con1608 tent myself with endeavoring to settle the case as fairly as was practicable under the circumstances, and to renounce the hope of obviating every objection, or avoiding the infliction of much hardship. The case is one rather for the "arbitrum boni viri" than the subject of a judicial determination proceeding upon fixed and absolute rules. On reviewing it, I feel some confidence that it is per 968 The United States vs. Sutter. haps as fair and just a settlement of the questions involved as could be made. Endorsed: Filed May 2nd, 1863. W. H. CHEVERS, Clerk. 1609 Order modifying survey shown by platfiled Feb'ry 25, 1863. At a stated term of the district court of the United States for the northern district of California, held at the court-room in San Francisco, on Monday, the fourth day of May, A. D. 1863. Present: Hon. Ogden Hoffman, dist. judge. THE UNITED STATES JOHN A. SUTTER. ) This cause came on to be heard on the exceptions of William T. Coleman, and of Woodruff and Packard, and others, to the official survey of the land confirmed, (which survey is shown by the 1610 certified copy plat filed in the cause Feb'y 25, 1863;) and counsel for the respective parties having been heard and due deliberation had in the premises, it is now ordered, adjudged, and decreed that the said plat of survey filed Feb'y 25, 1863, be returned to the surveyor general of the United States for California, together with a copy of this order and such papers as may be necessary, and that the said surveyor general cause the said plat to be modified in accordance with this order, and return the same, or a new plat, to this court without delay for approval. And it is further ordered that the said plat filed Feb'y 25, 1863, be modified as follows, to wit: Tract No. 7, containing 1,392-6~ acres, shall be excluded from said survey and plat, the attorney for the United States consenting in open court to withdraw the deed filed by the U. S. under which said tract was located. Tracts Nos. 6 and 9 to have excluded therefrom all the tule, swamp, and marsh lands, as near as may be, which are now included in said tracts by said survey and shown by said plat. 1611 Tract No. 12, containing 1,76719- acres, shall be excluded from said survey and plat. The area of tracts Nos. 7 and 12, and the quantity which shall be excluded from tracts Nos. 6 and 9, shall be located on the modified plat, as follows: 1st. A tract of 476 acres on the east side of Feather river, in township XIV north, range 3 and 4 east, as shown by the plat forming part of Exhibit Coleman No. 1, filed April 21, 1863, to which plat reference is to be had for the location of the tract allowed to be included in the survey under the exceptions of Wm. T. Colenan. Said tract shall be marked on the modified plat as "Tract No. 7." 2nd. There shall be added to tract No. 11, by consent of intervenors Woodruff and Packard, and no other parties objecting, the The United States vs. Sutter. 969 following described tract of land: commencing on the east bank of Feather river, at a point seventeen chains north of the south line of section twelve, township XIII north, range 3 east, and running thence due east to a point sixty chains east of the west line of section seven, township XIII north, range 4 east; thence due south to the north line of tract No. 11, as shown on the plat filed Feb'y 1612 25, 1863; thence westerly along said north line of tract No. 11, to the east bank of Feather river, and thence along the east bank of said river to the place of beginning. 3rd. A quantity of land equal to the remainder of tracts Nos. 7, 12, 6, and 9, excluded as aforesaid, after satisfying the two tracts on the east side of Feather river, as hereinbefore described, shall be added to tract No. 13, as shown on said plat filed Feb'y 25, 1863, as follows: commencing at the northwest corner of said tract No. 13, as now surveyed, which corner is marked "Post N. H. T. 13, 2;" thence due east and with the north line of tract 13, as now surveyed, to the west bank of the Feather river; thence up and along the west bank of Feather river to a point on the west bank of said river twenty chains south of the north line of section twelve, township XIV north, range 3 east; and thence on subdivision lines, and at the election of intervenors Woodruff and Packard, to the place of beginning. Said tract shall be marked on the modified plat as " tract No. 12, or Hock Farm tract." It being understood that the entire quantity of land include in all the above tracts shall be eleven leagues and no 1613 more. OGDEN HOFFMAN, Dist. Judge. Endorsed: Filed May 4, 1863. W. H. CHEVERS, Clerk. Order modifying order of Mlay 4, 1863. In the district court of the United States for the northern dist. of Cal. THE UNITED STATES) v. ^No. 319. JOHN A. SUTTER. J It is hereby stipulated and agreed by intervenors Packard and Woodruff, that the order modifying survey shown by plat filed Feb'y 25, 1863, which order was entered May 4, 1863, shall be modified as follows, to wit: The northwest quarter of section 3, township XIII nortlh range 3 east, shall be excluded, and the northwest quarter of section 2 of same township shall be included instead. There shall be taken from the Hock Farm tract, or tract No. 12, as directed to be surveyed or located in said order of May 4, 1863, a quantity sufficient to locate the following described tracts, 1614 which tracts shall be numbered on the new plat of location. "Tracts No. 13," to wit: commencing at a point on the west 970 The United States vs. Sutter. bank of Feather river where the north line of section 26, township XV north, range 3 east, intersects said west bank; thence due west to a point twenty chains west of the west line of said section 26; thence south, forty chains; thence east, to Feather river; thence up and along the west bank of said river to place of beginning. 2d. Commencing at a point on the west bank of Feather river, ten chains north of the south line of section 26, township XV north, range 3 east; thence due west to the west line of said section; thence south, fifty chains; thence east, to Feather river; thence up and along the west bank of said river to place of beginning. EDWARDS WOODRUFF, For Intervenors Packard & Woodruff. On reading and filing the foregoing stipulation, it is ordered that the order entered May 4, 1863, be, and hereby is, amended in accordance with said stipulation, and that a copy hereof be served upon the U. S. surveyor general. 1615 OGDEN HOFFMAN, Dist. Judge. Endorsed: Filed May 7th, 1863. W. H. CHEVERS, Clerk. [Here follows map. See decree, page 1,625.] 1617 Motion to take testimony in support of Micheltorena or 22-league grant, by att'y for claimant. District court of the United States for the northern district of California. THE UNITED STATES VS. JOHN A. SUTTER. Now on this day comes Geo. Cadwalader, of counsel for John A. Sutter, the claimant in this cause, and exhibits the mandate of the Supreme Court of the United States, filed in this cause, and prays that thereunder the said claimant may have leave to take testimony to prove the due execution and delivery by M. Micheltorena, governor of the Californias, of the 22-league or sobrante grant, dated the.5th of February, 1845; and also that said Micheltorena, as governor defacto and dejure of said department, had full and ample authority to execute and deliver the same as the grant of the Mexican nation, and in fact did so. And to the end desired, it is prayed that a commissioner may be appointed in conformity with the rules of this court, to take said testimony. And it is further prayed, that in the event that the appoint1618 ment of a commissioner is declined by the court, that a day may be set by this court for the hearing of the evidence of claimant to prove the validity of said sobrante grant. The United States vs. Sutter. 971 And counsel herewith exhibits and asks that in connection with said motion, the annexed affidavit of R. C. Hopkins, keeper of the Mexican archives in the custody of the surveyor general of the United States for the State of California, may be considered. GEO. CADWALADER, For and in behayf of Claimants..Aidavit of R. C. Hopkins. R. C. Hopkins, being duly sworn, deposes and says that he is keeper of the Spanish archives in the office of the U. S surveyor general; that he is conversant with the Spanish tongue, and familiar with said archives; that he has made a careful search among the same for documents tending to show the nature of the extraordinary powers delegated to Governor Micheltorena by the President of Mexico, on his taking charge of the government of the department of California; and he finds1st. That on the 10th of February, 1842, Jose Manuel 1619 Micheltorena was, by President Santa Anna, appointed commandant general and inspector of Upper California. 2nd. That on the 11th day of February, 1842, he was instructed as follows: "His excellency, the provisional president, desiring, that in the department of the Californias all its resources should be made use of for its prosperity and defence, and taking into consideration the events which have happened in the country, and which could not be prevented by the national government on account of the distance; and taking, also, into consideration, the situation in which your excellency will find yourself and the measures you may have to adopt, which will produce no effect, if they are delayed for the time required to receive advice in relation thereto-measures which will admit of no delay; and trusting that your excellency will make no abuse of the power granted, but that it will be employed for the good of the service, and of the department which the supreme government has placed under your charge: he has been pleased to grant to your exrcellency, besides the powers specified as belonging to you, in the laws and ordinances now in force, as governor, com1620 mandant general, and inspector, all the authority which the supreme government can delegate to you, that, in the exercise of it, you may remove all civil and military employees, &c." 3rd. A confirmatory grant issued by Governor Micheltorena to Manuel Jimeno, on the 1st day of April, 1843, for the ranchos of Santa Paula y Saticoy and Salsipuedes, which had been granted by former governors, within the litoral league, and consequently required the approval of the supreme government. In this confirmatory grant, Governor Micheltorena sets forth, that "Whereas Don Manuel Jimeno has manifested that the ranchos which had been conceded to him, the first with the name of Pajaro, alias Salsipuedes; and the second named Santa Paula y Saticoy, which are comprehended within the ten litoral leagues, mentioned in the laws of colonization, and for which reason, the said Man'l Jimeno asks the 972 lte United States vs. Sutter. approbation, which must be given by the supreme government, in'conformity with said law; and finding myself invested with supreme faculties. which were transmitted in order of the 11th of February, 1841, (1842,) I have determined to approve said concession, 1621 with the extension, as shown by the respective disenios, in order that the interested party, and his heirs, may enjoy the same as a property legally acquired and approved by the supreme government." 4th. That on the 19th of April, 1845, Gov. Micheltorena wrote to the commissary of the department of California from San Blas, "that the president of the republic, in consideration of the proposition made in his favor by the departmental assembly, had appointed him (Micheltorena) constitutional governor of the Californias." And this deponent further says, that he has carefully searched the archives, but has found nothing therein showing that the supreme government ever condemned or criticized any of the official acts of Governor Micheltorena, performed under and by virtue of his extraordinary power; but that, on the contrary, they were impliedly'ratifled and confirmed by his being appointed by the supreme government constitutional governor in 1845. And this deponent further says, that the archives show that in the latter part of the year 1844, a revolution broke out against the government of Gen'l Micheltorena; that in this revolution John 1622 A. Sutter aided Governor Micheltorena in his endeavors to sustain the authority of the supreme government against the revolutionary factions in the department of California; that Governor Micheltorena was unable to sustain himself against the revolutionists, but was, on or about the 1st of April, 1845, (before he received his appointment as constitutional governor,) obliged to leave the departmnent. And this deponent further says, that official acts performed by Governer Micheltorena, pending and near the close of the revolution referred to, such as the granting of lands, &c., were recognized and approved by the subsequent government of the department in its executive, judicial, and legislative departments. R. C. HOPKINS. Subscribed and sworn to before me, this 11th day of May, 1863. W. H. CHEVERS, U. S. Comm'r. 1623 Order overruling motion. The notice of foregoing motion having been duly served upon the United States district att'y of the United States, and appearing thereto, and the said motion having been duly heard and considered by the court, it is ordered that the same be, and hereby is, denied. To which order the said claimants excepts. OGDEN HOFFMAN, Dist. Judge. MAY 11, 1863. The United States vs. Sutter. 973 End'' F~:c 7'iled May 11, 1863. W. II. CHEVERS, Clerk. Final decree. In the.o:bi^ l court of the United States for the northern district of California. THE UNITS' STATES ) v. No. 319, stated term, May 11, 1833. JOHN A. SuTCiER. Tllis cause came on to be heard on exceptions to the sur1624 vey made by the surveyor general of the United States for Caiifornia of the eleven leagues of land granted by Gov. Alvarado to the said Sutter on the leth June, 1841," and confirmed by the Supreme Court of the U. S., as shown by the mandate of said court filed in the cause July 5, 1859. Whereupon, after argument by the counsel for the respective parties, and due deliberation had in the premises, it was ordered, adjudged, and decreed that the said official survey be, and the same was, rejected and set aside, and that a new survey should be made. And it appearing to the court that the surveyor general of the U. S. for California has returned a plat of survey and location of the eleven leagues confirmed as aforesaid, and that such survey and location is in accordance with the orders of this court heretofore made and entered, it is now ordered, adjudged, and decreed that the survey and location shown by the plat, approved by said surveyor general May 11th, 1863, and filed herein May 11th, 1863, is a good and valid survey and location of the eleven leagues confirmed to 1625 said Sutter as aforesaid, and that the said survey and location be, and the same hereby is, approved and confirmed. And it is further ordered that the said plat of location and survey filed May 11th, 1863, and marked "Approved May 11th, 1863. Ogden Hoffman, dist. judge," and including the total area of 48,847so-S acres, be attached to and made a part of this decree for a more full and particular description of the land now finally confirmed to the said John A. Sutter. OGDEN HOFFMAN, Dist. Judge. Endorsed: Filed May 11, 1863. W. H. CHEVERS, Clerk. (Here follows plat, page 1625.) 9T4 The United States vs. Sutter. Boundaries of tract No. 1. No. Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance) I N.86~ E.. 170.00 35 S. 38* W. 12.00 69 N.45' WV. 9.00 103 S.16' W 15.00 2 " 27 ".. 148.00 36 " 86- ".. 5.00 70 " 31% ".. 31.00 104 " 23* ".. 16.00 3 " 57* ".. 146.00 37 " 60* ".. 13.00 71 " 19 ".. 18.00 105 " 34} ".. 18.60 4 S.468 ".. 84.00 38 " 66 ".. 20.00 72 " 7% ".. 7.00 106 " 48f ".. 39.20 5 " 56% ".. 62.00 39 " 62 ". 6.00 73 " 37 "..I 10.00 107 " 2: ".. 11.00 6 " 77 ". 40.00 40 " 611 ".. 7.00 74 " 62% ".. 20.00 108 " 11 E.. 4.10 7 N. 87 ".. 80.00 41 " 61, ".. 7.00 75 " 68 ".. 20.00 109 " 271.. 39.00 8 "78 ".. 40.00 42 " 68 ".. 14.00 76 " 76.. 16.00 110 " 14 ". 20.00 9 " 55 ".. 60.00 43 " 75q'.. 8.00 77 " 86 ".. 20.00 Ill " 19 ".. 12.00 10 " 719 ".. 60.00 44 N.89 "<.. 18.59 78 S. 82 ".. 20.00 112 " 27{ ".. 44.00 11 " 47, ". 82.38 45 " 85 ".. 7.70 79 " 47, ".. 11.00 113 " 9* W. 6.00 12 " 1 W. 71.26 46 " 681 <.. 12.00 80 "40* ".. 5.00 114 "23 ".. 7.00 13 " 79 ". 5.96 47 " 60* ".. 8.16 81 " 15 ". 3.00 115 "C 26- ".. 18.00 14 S. 871 ". 4.37 48 " 53 ".. 10.00 82 c" 5 E.. 4 00 116 " 17.. 5.40 15 " 65% ".. 4.66 49 " 26- ".. 13.00 83 " 26%.. 4.00 117 " 36 ".. 27.00 16 51 ". 10.54 50 "21% ".. 7.47 84 " 791 ".. 8.00 118 " 46%",. 6.60 17 " 58 ".. 6.00 51 " 25 ".. 11.00 85 N.8- ".. 6.00 119 " 58 ".. 21.30 18 "58% ".. 43.00 52 " 1 ".. 5.64 86 8.85% ".. 4.00 120 " 60% ".. 9.00 19, 54* ".. 13.00 53 " 10* E.. 32.00 87 " 521 ".. 16.85 121," 66 ".. 20.0O 20 " 661 ".. 15.00 54 " 36 W. 30.00 88 " 211 ".. 16.00 122 " 59 ".. 6.00 21 51 "..' 11.00 55 "' 411 ".. 24.61 89 " 10% ".. 5.00 123 " 42 ".. 4.00 22 " 781 ".. 21.00 56," 811 ".. 24 00 90 8 W. 5.00 124 " 22 ".. 5.00 23 70 " 9.00 57 " 68 ". 8.00 91 " 151 ".. 5.55 125 " 0 ".. 2.00 24 " 67~ ".. 9.00 58 " 43* ".. 16.00 92 " 32.. 6.00 26 " 17 ".. 2:00 25 " 721 ".. 14.79 59' 40 ".. 14.00 93 " 67 ".. 9.54 127 " 9 B.. 3.00 26 N.421 ". 2-2.50 60 " 57 ".. 6.00 94 N.57* ".. 15.72 128 " 22 ".. 2.00 27 " 51t ".. 18.31) 61 " 42- ".. 3.00 95 " 67 ".. 4.00 129 " 8 ".. 2.00 28 "82 ".. 5.4'2 62 " 62 ".. 34.00 96 S. 80* ".. 12.00 130 " 27 ".. 2.00 29 S. 67* ". 9.00 63 S. 81* ".. 24.00 97 " 51 ".. 4.00 131 " 41 ".. 2.00 30 " 43 ". 7.50 64 " 671 ".. 11.00 98 " 411 ".. 9.50 132 " 381 ".. 2.00 31 " 511 ". 15.00 65 " 59* ".. 9.00 99 " 61 E.. 11.30 133 " 50 ".. 12.00 3' " 41 ".. 9 60 66 " 45* ".. 37.00 100 " 121 W. 7.00 134 " 40 ".. 17.0033 "35. ". 14.00 67 N.58 ".. 18.00 101 "21 ".. 2 00 135 "89 ".. 4.00 34 " 52 ".. 5.00 68 "15 ".. 7.00 102 " 16 ".. 19.00 Boundaries of tract No. 2. No. Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance. 1 S. 9%' W. 13.00 18 S. 40' b W. 10.00 35 N. 2' W. 31.00 52 N.511*E. 15.4(f 2 "39 ".. 23.50! 19' 6 E. 39.00 36 "57 E.. 19.50 53 S. 73". 18.50 3 " 10 ".. 7.86 20 " 49 ".. 34 03 37 " 46* ". 15.38 54 " 64".. 8.05 4 5" ".. 5.00 01 " 78% " 24.00 38 S. 80o W. 9.75 55 " 74 ". 9.40 5 " 16' E.. 14 00 22 "81 " 2)0.30 39 N.69.. 4.50 56 N.9 ".. 20.0 6 " 38% "'.. 7.60 i 23 " 85 ".. 10.80 40 " ".. 11.50 57 "78". 1)3.:03 7 " 51% ".. 25.001 24 East...... 14.14 41 " 11 E.. 19.50 58 " 12.. 10.00 8" 5 W. 25.50 i 25 S 71 B.. 12.10 42 "19 ".. 125) 59 "26" 20.25 9 1 62 ". 12.80 26 N. 44 " 8.47 43 " 9 ".. 19.00 60 " 48. 26.60 10i " 23 ".. 7.62 27 " 75 ".. 10.60 44 " 281 ".. 22.00 61 "31 ".. 27.60 11 " 18 E.. 29.00 28 S.72% ".. 27.40 45 " 8 ". 17.50 62 " 5 ".. 8.00 12, "25 "1. 18. 0 29 N. 41 ".. 11.00 46 "39 W. 4.00 63 " 27 ".. 5.70 13 211 " 17.09 30 S. 79 ".. 3.00 47 " 74* ".. 5.60 64 " 73 ".. 28.75 14 " 20, ".. 11.00 31 ". 9 ".. 35.00 48 " 351 ".. 700 65 " 2". 50.26 15' 14% "'. 15.75 32 " 5 ".. 26.11 49 " ".. 12.35 66 North.... 24.50 16 " 26 " 15.00 33 N. 60 ".. 13.00 50 " 5 E.. 10.00 67 West..... 308.20 17 " 10% W'. 13.30 34 " 22 ".. 20.18 51 " 22 ".. 19.18 68 S. 89' W. 156.90 4 —1 6 The United States vs. Sutter. 975 Boundarie8 of tract No. 3. No. Course. Distance. No. Course. Distance. No. Course. Distance No. Course. Distance. 1 North...... 46.00 56 N. 45~* W. 10.50 111 S. 52,* E.. 16.00 166 N.62oE.. 7.35 2 N. 51~~ W. 11.62 57 " 25 <.. 12.00 112 " 442 ".. 7.00 167 " 7i ".. 15.60 3 " 80* ".. 21.00 58 " 4- ".. 7.00 113'. 34 "c.. 5.00 168 " 83. " 22.53 4 " 56Q ".. 31.13 59 " 15 ". 8 00 114 " 42J ".. 14.00 169 S. 81 "' 17.26 5 S.69 ",, 32.50 60 " 75 ".. 7.00 115 " 33 ".. 10 00 170 " 86 ".. 6.00 6 " 871 ".. 31.51 61 S. 484 ".. 15.00 116 " 26 ".. 10.00 171 "8 80.. 10.86 7 N. 5* E 20.00 62 39} ".. 7.62 117 " 10< W. 3.27 172 " 76 " 12.0 8 8 W. 22.51 63 N.76 4 ".. 4.32 118 " 342 E.. 10.90 173 " 80 ".. 19.52 9 8.53 ".. 27.00 64 S. 67 "C.. 36.29 119 " 23* ". 31.00 174 " 75 ".. 10.00 10 N.80* ".. 21.00 65 N.46* -'.. 31.94 120 " 23 ".. 4.10 175 " 63 ".. 12.00 11 S. l ".. 33.11 66 " 16- ".. 3-2.00 121'" 7 ".. 41.70 176 " 52 ".1 13.40 12 " 79J ".. 28.45 67 " 49 ".. 26.77 122 " 21* W. 84.00 177 " 41 -". 3.00 13 N.30~ ". 26.00 68 " 731 ".. 16.00 123 " 21 ".. 3.50 178 " 29 ".. 4.80 14 S. 60- ".. 11.68 69 "' 2 E.. 16.00 124 " 13* ".. 89.00 179 " 24 ". 16.00 15 N.747 ".. 8.00 70 S. 87* W. 11.00 125 " 12- ".. 15.00 180 "22 ".. 3.50 16 "36* ".. 11.00 71 N.24' ".. 18.00 126 " 12* ".. 33.00 181 " 16 ". 35.30 17 " 80 ".. 25.88 72 S.74. 19.00 127 "39 ".. 112.60 182 N.61".. 3.8-' 18 " 4, C.. 30.42 73 N.35* ".. 33.00 128' 44* ".. 52.00 183 " 67 " 5.00 19 S. 44* ".. 9.77 74 " 5: E.. 7.00 129 ( 30* ".. 9.80 184 " 63 ".. 1.35 20 N. 76 ".., 12-.52 75 " 18 W. 3.78 130 " 16* ".. 14.50 185 " 80 ".. 2.40 21 S. 24* E.. 10.00 76 " 32*'.. 3 95 131 " 1 ".. 223.00 186 East..... 1.60 22 " 38* ".. 17.00 77 " 34* ".. 2.80 132 " 9~ E.. 21.00 187 N.65~~E.. 1.65 23 " 41 W. 3.00 78 " 3,9'.. 6 00 133 " 18 "'.. 11.00 188 S. 72*, ". 12.00 24 1" 1. E. 6.00 79 " 16* ".. 23.00 134 " 28 C. 39 50 189 " 44.. 8.00 25 " 50*.. ~ 8.00 80 l 21* E.. 32.00 135 " 45* ".. 28.00 19!) N. 7 ".. 9.00 26 " 51 W. 12.00 81 " 40, ".. 32.00 136 " 45I ".. 21.00 191 " 4 ".. 7.00 27 N. 84 ". 8 00 82 " 27* ".. 24.00 137 " 49 "I.. 46.60 19-2 " 2* W. 11.00 28 " 39* ".. 7.00 83 " 437 ".. 63.00 138 " 49'".. 41.00 193 " 219.. 10.00 29 cc 86 "'. 6.00 84 S. 80 ". 4.00 139 " 31 ".. 18.00 194 " 563'.. 8.00 30 S. 6 ".. 12.00 85 N.61* ".. 24.16 140 " 34 ".. 27.80 195 " 60 " 4.00 31 "87 ". 11.24 86 " 5- ". 25.93 141 " 38 ".. 25.50 196 " 84 ".. 5.00 32 N.71* ". 15.'25 87 " 2-5 ".. 41.57 142 " 40 ". 9.80 197 " 631".. 2.33 33 " 3: ".. 40.34 88 " 54 W. 35.00 143 " 59*'~ 10.00 198 " 85 ".. 9.0() 34 " 27* ".. 25.68 89 " 2* E.. 14.00 144 " 85* c. 16.00 199 " 3 I".. 8.45 35 " 21 E 22.00 90 " 21* W. 12.00 145 N. 557 ".. 24.00 1200 " 4 ".. 10.54 36- " 14} W. 25.50 91 " 9 E.. 57.00 146 " 491 ".. 20.00 201 " 341 E. 12.00 37 " 2* E.. 16.94 92 " 16* ".. 31.00 147 " 70 ".. 11.00'202 " 58 ".. 12.00 38 " 63 ".. 23.97 93 " 46 ".. 11.00 148 8. 76 ".. 15.00 1203 " 79.. 18.00 39 " 36 ".. 13.06 94 S. 69* ".. 26.00 149 " 59* ".. 40.10'204 S. 86 ".. 20.00 40 8. 89 ".. 35.00 95 N.43 ".. 51.57 150 " 18* ". 30.00 [205 " 71 ".. 9.00 41 N.31 ".. 22.00 96 " 5* ".. 45.18 151 " 11* ".. 18.40 i206 " 70".. 3 00 42 " 2 W. 28.00 97 " 9 W. 36 00 152 "16* ".. 25.25 207 " 73 ".. 1.00 43 " 50} ".. 20.00 98 " 67 ".. 9.00 153 " 7* ".. 26.50 208 " 76 ".. 200 44 8.85 ".. 34.00 99 " 4 E.. 14.00 154 " 4* ".. 23.30 20)9 N. 86*". 4 00 45 N.57 "'.. 13.62 100 " 8-1 W. 18.19:55 " ".. 31.20 210 s8.6 ".. 7.00 46 " 209 ".. 49.44 101 " 2e ".. 37.00 156 " 10- ".. 16.20 211 " 69 ".. 6.00 47 " 27 ".. 21.91 102 " 361 ".. 25.98 157 " 9.. 12 00'212 " 67".. 8a.10 48 " 54* "" 9.13 103 " 45* ". 11.51 158 " 26 ".. 35.50 -13 " 65 ".. 4.00 49 8. 56* ".. 48.16 104 " 31 " 93 11 159 " 33 ".. 15 80'214 " 73 ".. 8.00 50 N. 471 ".. 19 54 105 " 58* ".. 43.68 160 " 36 ".. 14.90 -1315 " 527 ".. 13.00 51 S. 37 ".. 10.67 106 West....... 42 00 161 " 45 ".. 11.80 216 " 45 ".. 6.00 52 " 87, 6.00 47 S'. 59*' E.. 13.0,' 50 ".. 14.80 217 " 36, ".. 5.00 53 "47 ".. 4.59 108 " 72* " 2.. 4.00 163 "81 ".. 6.80 54 N.56 ".. 1.81l 109 " 61 ".. 7.00 164 N.42* ". 13.00 55 " 77 ".. 4.00 110 " 55~ ".~ 13.00 165," 38 ".. 13.00 Boundaries of tract No. 4. 1 West...... 70.55 16 N.27*~ W. 12.00 31 S. 8~ W. 13.00 46 S.424 E.. 15.00.2 S.2) BE.. 8.86 17 " 87k ".. 6.50 32 " 3* E.. 19.00 47 " 24-".. 2200 3 "2-2 W. 10.0( 18 " 50* ".. 6.00 33 " 16* W. 15.00 48 East.... 92.00 4 " 55 " 6.. 6.00 19 " 78 1600 34 " 14 36.00 49 North... 60.00 5 "77 " 14.00 20 S. 62 ".. 5.60 35'9 "9. 9.50 50 Ea,-t 20.00 6 1" 43 ". 15.00 21 " 44g ". 11.00 36 " 21 10.00 51 North.... 40.00 7 "23 ".. 16.51 22 "71 ".. 11.00 37 South...... 28 00 52 East... 40.00 8 " 5. " 27.100 23 N.56 ".. 10.00 38 S W. 10.00 53 North.... 40.00 9 " 46 ".. 7.00 24 8. 83* ".. 8.00 39 47.. 21.00 54 East...... 40.00 10 " 56* ".. 16.00 25 N. 62 ".. 10.75 40 " 33 E.. 11.00 55 \orth.... 40.00 II " 79 ".. 9.00 26 88 "..' 23.65 41 " 74* "7 ~ 20.75 56 East.... 40.00 1'2 West...... 9.00 27 72.. 20.60 42 N.68 ".. 13.00 57 North... 40.00 13 N.48' W. 29.00 28 5. 72* "' 4.40 43 " 41 7.00 14' 10* ".. 6.6'2 29 " 1 E.. 3.50 44 " 28J "}. 13.00 15 " 1 E.. 6.00 30 " 44 ".. 21 00 45 " 64* "-. 18.00 976 The United Slate; vs. Sutter. Boundaries of trzct No. 5. No. Course. Distance No. Course. Distance. Nc. Course. Distance. No. Course. Distance. I S.41~20'E.. 113.00 9 N. 34~ E.. 15.00 17.18j W. 39.75'25 N.57" E. 62.40 2 "51~I'W.4 180.00 10 " 311 ".. 20.00 18 4C P...11.59 26 " 66, ".. 8.30 3 "240 5'" 192.95 11 " 26 ".. 1 9.00 19' 45 ".. 36.00 27 " 31.. 10.40 4 N.75~40,'. 83).00( 12 " 21, ".. 27.00 0 S. 54 ".. 19.6 8 " 63".. 9 00 5 " 1,7, E.. 13.00 13 23 23 3'0.00 4 44.. 970 29 13, W. 31.00 6' 16 - ". 294.00 14 " 19* ".. 12.00 22 " 40} ".. 15.00 i30 " 2E.. 4.90 7 " 19 ".. 23. 00 15 " 10* ".. 11.83 23 N 80 ".. 6.00 8 "30" ".. 19.00 16 " 41 W. 1 6.024 46 ".. 18.50 1 Boundaries of tract No. 6 on east side of Feather river. I N.551, W. 19.0( 7 N.19' W. 8.00 13 S. 26 E.. 136.00 19 N. 611W. 7.00 2 " 4V- ".. 8.00 8 " 15~'.. 12,000 14 " 60 ".. 53.00 20 " 721 ".. 24.00 3 " 35 ".. 21.00 9' 6 ".. 15.0) 15 " 30 W. 80.00 21 " 59 ".. 13.00 4 " 32 " 15.00 10 " 27 ".. 20,00 16 N.41'".. 7.00' " 3'2 ".. 16.00 11 " 10 ".. 16.00:17 "' 52 ".. 16.00) 6 30 ".. 10.00 1 " 64 E.. 80.00 1 55.. 13.00 Boundaries of tract No. 6 on west side of Feather.river. 1 N. 44 T,' 12.00 12 N. 30" WV. 6.00 23 N.,21_ IW. 192.00 34 N. 24~ E.. 16.00 2 " 38 ".. 11.030 13 " 24W ".. 12.00 35 ", 18. 14.50 3 " 3.-.. 3.00 i14 " 38" c.. 4.00 25 " 29" c.. 10.00 36 "0 43 W. 17.00 4 " 352 ".. 3.V0 15 11 E.. 3.45 26 " 6* ".. 11.00 37 " 10 ".. 10.00 5 9' 00 16..00 27 " " 18.00 38 " 20 E.. 2.22 6 " 3? ". 15.00 17 14- ".. 7.00 28 " 18' E.. 5.55 39 39 ".. 10.63 7 " 36- ".. 3.0) 18 C" 12 ".. 6.00 29 8. 69* W. 80.01) 40 " 3 "..' 15.00 8 "1 25 ".. 52,)0 19 " 63 ".. 22.00 30 0" 9O E.. 304.00 41 " 84 ". 13.00 9 "' 27. "C.. 3.00 2-) " 9 ".. 102.00 312. "..4 1.00 10 " 25 ".. 8.00 i2 " 16..- 6.00 32 " 21- ".. 15.00 11 " 28 ".. 13.00 22 19 ".. 19.00 33 " 2e0 ".. 13.00 Boundaries of tract No. 7. 1 N. 44*~ E.. 12.00 7 N.13' W. 10.00 13 N. 32 E.. 7.00 19 N. 690 E.. 5.00 2 " 23 ". 14.50 8 " 3. E.. 6.0) 14 " 61.. 7.00 20 " 31.. 18.50 3 " 1 W. 5,00 9;" 34 ".. 11.00 15 " 26.. 18.50 21 8. 56* ".. 80.00 4 " 23 E.. 6.0. 10 1 41 ".. 4.00 16 " 5} ".. 10.00 22 " 3S3 W. 160.00 5 " 3* ".. 6.0) 11 " 924 ".. 5.00 17 " 5* ".. 10.10 23 N.56* ".. 80.UO 6." 16 ".. 4.00 12 " 63 ".. 5.00 18 S.5'".. 11.50 Boundaries of tract No. 8. I S. 23 W. 16.00 4 S. 15~ IE.. 1.00 7. 30 E.. 0.56 10 86 W. 80.00 5 " 18 ".. 17.00 5 " 301 ".. 18.0 ) 8 N.8 ".. 80.00 3 " 192 E.. 13.00 0 " 7 23 " 9.00; 9 " 3 W. 80.00 Boundaries of tract No. 9. 1 S. 34-0 E.. 5.00 3 9. 33k E.. 1.00 5 8. 10k W 3.27 7 N.39' W. 77.58 2 " 42 ".. 14.00 4 1 2-' ".. 10.00 6 N.5G* E.. 80.0 8 S. 30 ".. 0.00 Boundaries of tract No. 10. 1 N. 68*' W. 1413.81 8 S. 49' E.. 3.00 15 N. 48' E.. 7.00 22 N. 19-' E. 8.41 2 8. 21'.. 118.42 9 " 54 ".. 1.37 16 " 52 ".. 14.00 23: " 29 ". 8 68 3 " 684 E.. 80.84 10' c3 ".. 4 00) 17 " 603 ".. 9.61 24 " 48 W Ii.i0 4 N.47 ".. 4.00 1 " 36 ".. 2.00 18 " 53 ".. 20.39 25 " 27 ".. 6.00 5 " 85 ".. 5.00 1 " 26 ".. 26 0.88 19 "5:3 ".. 31.07 2 " l ". 6.10 6 S. 61 ". 60 13 " 3 "...19.54 20 " 413 W.. 27 " I E.. 4.00 7 " 60 ".. 3.00 14 N.74 "3.. 15.5521 ".. 5.00 28 " W. 19.22 The United States vs. Sutter. 977 Boundaries of tract No. 11. No Course. Distance. No. Course. Distance. No. Course. Distance. No. Course. Distance. 1 S. 74~ 50' E 176.25 19 S. 63.* W. 6,00 37 S. 26~0" E.. 2.00 55 S. 71 E. 6.00 2' 80 W. 1.60 20 " 9~ ".. 4.00 38 " 9' ".. 1.50 56 " 10 " 5.00 3 " 39 ".. 8.00 21 "41C ".. 4.00 39 " 6I ".. 1.00 57 N.50( W. 23.00 4' 4f; ".. 9.00 22 " 77 ".. 3.00 40 "( 201 W. 4.00 58 16 ".. 14.50 5 " 49* ".. 6.00 23 N. 17 ".. 5.00 41 " 26, ".. 5.31 59 " 41 ".. 18.00 6 " 253 ".. 25.00 24 S. 651 ". 4.00 42 " 22 ".. 5.70 60 " 5 E.. 12.50 7 " 30* ".. 7.80 25 " 18- E.. 5 00 43 " 60 ".. 2.45 61 72".1 17.50 8' 45 ".. 0.20 26 " 42 ".. 2.00 44 " 55 ".. 3.00 63 " 14* ".. 17.00 9 "31* ".. 16.00 27 "I 21 W. 7.00 45 " 42* ".. 3.0( 63 "204( W. 37.00 10 " 74* ".. 5.00 28 " 33 ".. 6.00 46 " 23* ".. 1.23 64 18 E'21.00 11' 78 ".. 2.00 29 " 15 E.. 9.00 47 " * ".. 1.70 65 " 10 W. 35.00 12 N.851 ".. 9.00 30 " I ".. 2.00 48 " 16* E.. 2.00 66 " 291 ".. 26.00 13. 53 ".. 10.00 31 " 23* W. 2.00 49 " 131 W. 3.00 67 " 17 ".. 21.00 14 " 5* ".. 11.00 32 " 32-' ".. 2.00 50 1 "..'2.00 68 " 21 E.. 27.50 15 " 27 ".. 17.00 33 " 501 ".. 2 00 51 " 9* ".. 5.00 69 " 10 ". 8.80 16 " 59* ".. 5.00 34 " 48~ ".. 2.00 52 " 20 ".. 10.00 70 " 16- W. 15.00 17 " 48 ".. 5.00 35 " 24 ". 5.20 53 " 10* E.. 8.00 71 " 45 ".. 22.50 18 " 29 "., 6.00 36 " 7 ",,. 3.00 54, 26 ".. 6.00 Boundaries of tract No. 12. No. Course. Distance. No. Course. Distance. 1 West.............................. 89.90 17 S. 39{: E....................... 6.00 2 North...................... 20.00 18 " 25,"......................... o00 3 East.............................. 20.00 19 12 "......................... 6.00 4 North............................. 60.00 20 " 43*......................... 14.48 5 East.............................. 20.00 21 " 29........................ 6.00 6 North............................. 60.00( 2-2 11 "......................... 16.00 7 West............................. 20.00 23 " 7 W.......................... 17.00 8 North............................ 40.00 24 12 "......................... 9.00 9 West............................. 20.00 25 " 13........................ 10.00 10 North........................... 20.00 26 17 "......... 14.00 I1 East............................. 88.96 27 19 "......................... 8.0 12 S. 5 E........................ 5.00 28 " 5* "........................ 963 13 " 18.......................... 4.00 29 "c 47 "........................ 5 00) 14 " 301 ".......................... 2.33 30," 18 "......................... 38.00 15 " 33 "......................... 10.00 31 "20."......................... 21.74 16 " 56.......................... 6.00 Boundaries of tract No. 13. 1 North............................ 180.00 10 S. 23~* E............. 14.00 2 East.......................... 75.37 11 " 27 ".. 33.00 3 8. 2o E........................ 15.00 12 " 53........................ 9.82 4 13 ".................. 20.53 13 West............................. 46.00 5 "77 W........................ 13.50 14 South............................. 60.00 6 " 7 E......................... 12.75 15 West.............................. 80.00 7 "24 W....................... 20.94 16 North............................. 40.00 8 "14 "......................... 13.00 17 East............................. 40.00 9 South............................. 30.00 [REC. CCLVIII, D. T. 1862.] —62 978 The United States vs. Sutter. Connecting lines. Course. Distance. Course. Distance, Between tracts 1 & 3. Between tracts 5 & 7. Beginning at end of course No. 71 of tract No. 1 thence- Beginning at post N. H. T. No. 5, at point of beginning of tract No. 5, thence along left bank of Feather river up streamN. 68' E........................ 9.67 2 N. 28 W................. 3.81 3 N. 44 W......................... 4.00 1 N. 29 E........................ 30.00 _2 " 25....................... 25.00 3 " 13 W........................ 12.00, to post No. I of tract No. 3. 4 40....................... 6.50 Between tract 5 & 8. to junction of Bear and Feather rivers; thence aloin Beginning at post N. H. No. 5, the SW. corner of tract left bank of Bear riv. up streamNo. 5, thence5 N. 8~ W........ 5.50 S..14 V W...................... 13.00 6 "10... 7.00 2 S. 12 W..................... 2.00 7 "24..6.00 3 S. 11 W....................... 16.00 8 " 8 "............. 7.00 4 S.181 V......................... 27,00 9 " 15} E..... 10.00 5. 2.2 W....................... 22.00 10 11..............9.00 1_C __164 W....................... 2.00 to point of beginning of tract No. 8. to post N. H. T. 7, S. 1, of tract No. 7. NOTE TO SURVEY OF TRACT No. 3.-The deputy surveyor, E. H. Dyer, ran the east boundary of this tract with such courses and distances that in his judgment will follow the line of separation between tule, or marsh. a.:d dry land, as it existed at the date of the grant from Governor Alvarado to John A. Sutler. The field-notes of the "New Helvetia rancho, and from which this plat has been made out, have been examined and approved, and Ire on file in this office. E. F. BEALE, U. S. Sur'r Gen', Cal. I. S. SURVEYOR GENERAL'S OFFICE, San Francisco, California, February 7th, 1863. Order granting appeal in behalf of U. S. 1626 At a stated term of the district court of the United States of America for the northern district of California, held at the court-room, in the city of San Francisco, on Monday, the 11th day of May, in the year of our Lord one thousand eight hundred and sixtythree. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES v. No. 319. JOHN A. SUTTER. This cause having come on to be heard on objections to the survey and location of the land, heretofore confirmed to the said John A. The United States vs. Sulter. 979 Sutter, and the court having, by its final decree, made and entered this 11th day of May, 1863, approved the location made by the surveyor general of the U. S. for California, in pursuance of the orders of the court, heretofore entered, now, on application of Wm. H. Sharp, esq., U. S. attorney, it is ordered that an appeal in behalf of the United States from said final decree be, and the same is 1627 hereby, granted, and that a certified transcript of the record in said cause be sent to the Supreme Court of the United States, without delay. Endorsed: Filed May 11, 1863. W. H. CHEVERS, Clerk. Order granting appeal in behalf of intervenor B. Gelston. At a stated term of the district court of the United States of America for the northern district of California, held at the court-room, in the city of San Francisco, on Monday, the eleventh day of May, in the year of our Lord one thousand eight hundred and sixty-three. Present: The honorable Ogden Hoffman, district judge. THE UNITED STATES) VA. SU I No. 319. JOHN A. SUTTER. ) This cause having come on to be heard on objections to the survey and location of the land, heretofore confirmed to the said John 1628 A. Sutter, and the court having, by its final decree, made and entered this 11th day of May, 1863, approved the location made by the surveyor general of the U. S. for California, in pursuance of the orders of the court, heretofore entered, now, on application of Elihu Johnson, esq., attorney for intervenor Roland Gelston, it is ordered that an appeal in behalf of said intervenor Roland Gelston, from said final decree, be, and the same is hereby, granted, ind that a certified transcript of the record in saiJ cause be sent to the Supreme Court of the United States, without delay. Endorsed: Filed May 11, 1863, W. H. CHEVERS, Clerk. Order allowing maps to form part o'f l{:cord on appeal. At a stated term of tho dtistrict r.t f::e United States of 1629 America for the northern distr'il:i:'f Ci.j:;:i, held at the court-room in the city of San Fri;-; i' m':.:X. c' tednesday, the first day of July, in the year of our oIr.; to- eight hundred and sixty-three. Present: The honorable Ogden HFT!-:vni;;-. i:c:t^io THE UNITED STATES v. No 319. JOHN A. SUTTER. And now at this day, on appl l:'i o.f >H- 3:..:SLp. esq., U, S. 980 The United States vs. Sutter. attorney, it is ordered that the United States have leave to send up, as part of the transcript on appeal, the plats and maps on file in this case, instead of copies of the same. OGDEN HOFFMAN, Dist. Judge. Endorsed: Filed July 1st, 1863. 1630 W. H. CHEVERS, Clerk. Order granting appeal in behalf of Hiram Grimes. U. S. district court, northern district of California, in chambers, July 22, 1863. THE UNITED STATES ) V. SNo. 319. JOHN A. SUTTER. ) On application of A. C. Whitcomb, esq.., attorney for intervenor, Hiram Grimes, the district attorney of the United States, being present and consenting hereto, it is ordered that an appeal from the final decree of this court in said cause, to the Supreme Court of the United States, be, and the same is hereby, granted in behalf of said intervenor, Hiram Grimes, with the same effect as if applied for and granted in open court. OGDEN HOFFMAN, Dist. Judge. Filed July 22, 1863. W. H. CHEVERS, Clerk. I, William H. Sharp, district attorney of the United States for the northern district of California, by virtue of the power vested in me by law-to wit, under the act of the Congress of the United States entitled "An act relative to appeals to the Supreme Court of the United States," approved August 6, 1861-do hereby certify that the annexed and foregoing (1,630) sixteen hundred and thirty consecuively numbered pages, together with the plats and maps also annex-d hereto, exhibit.a full, true, and correct transcript of tle record nd proceedings, since and including the filing of the mandate of the upreme Court, remandingr the cause for further proceedings, in the case of the United States v. John A. Sutter, numbered 319 on the docket of land cases in the district court of the United States for the northern district of California; and that the original papers and maps from which said transcript has been made were duly delivered to me by the clerk of said district court, as required by law; and that the said original papers are on file and of record in the clerk's office )f said district court. In testimony whereof, I have hereto set my hand and private seal, [SEAL] at San Francisco, in said district, this 22d day of July, A. L D. 1863, and of our independence the 88th. WM. H. SHARP, U, S. Att'y, Northern Dist. Cal'a. Filed August 24, 1863.