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 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES 
 
 ROBERT ERNEST COWAN 
 
 fe 
 
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 n t|f ^tneral f anb #ice. 
 
 SURVEY 
 
 OP THS 
 
 RAXGHO SANTIAGO DE SAISTA AITA. 
 
 BRIEF OF MONTGOMERY BLAIR 
 For Bolsds ClcUmcavts, 
 
 • •• .*. • *. • • • • 
 
 *,•••• • • •" • • • • • ••• . • ••* • • • •• . .' » 
 
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 |n tl)c 6ciin-al '^'i\n #fice. 
 
 SURVEY OF THE 
 RANCIIO SANTIAGO DE SANTA ANA: 
 
 BRIEF OF MONTGOMEUY BLAIR FOR BOLSAS CLAIMANTS. 
 
 Statement. 
 
 This is a renewal of the contest .against the survey of the 
 Bolsas Rancho begun in 1875. A» league was then organ- 
 ized b\' the settlers on that rancho to oppose the approval 
 of that survey by the Department, and elected as their 
 president and secretary Messrs. Huntley and Edrington, 
 who now sign the ]»rotest against the approval of the adjoin- 
 ing survey of the Kanoho Santiago de Santa Ana. 
 
 Tliis rancho was finally confirmed to Bernando Yorba 
 and others, as the heirs and legal representatives of Jose 
 Antonio Yorba and Juan Pablo Peralta, deceased, July 10, 
 1855. The decree refers to the petition of i\iblo Grifalva, 
 the report of Manuel Rodriguez, and the map contained in 
 tiie Expcdicnte for a description of the land, and confirms all 
 within the boundaries described. In his petition Grifalva 
 says: "The extent I solicit is from the banks of the river 
 Ana towards Santiago, whilst taking a direct course a little 
 more than a league, and towards the beach, a little more 
 than five leagues. Frotn the arroyo [creek] upwards to 
 where the house is, there arc about one league and a half, 
 from there to the mountains about three leagues, and to- 
 wards the south I solicit what is about a league and a half."
 
 2 
 
 The survey was returned by Heury Hancock in Decem- 
 ber, 1857, Jiiul was approved by Surveyor General Maude- 
 ville June 3, 1859. It was advertised under the act of 
 1860, and no objection was then wade, nor was any ob- 
 jection made to it when it was again advertised in Octo- 
 ber, 1874, under the act of July 1, 1864. Nor did the 
 claimants object to the adoption of the west line of that 
 survey as the dividing line between that rancho and Las 
 Bolsas at either of the five several times when it was pre- 
 sented for adjudication, twice before the district court and 
 three times before the Land Department. 
 
 The survey having been transmitted to the Commissioner 
 of the Land Office, " for his examination and approval" as 
 that act required, (»ii the 18th of September, 1878, the 
 Commissioner inquired of Surveyor General AVagner re- 
 specting its condition, and -ao reply having been received, 
 the Commissioner, on the 5tli of December, called his atten- 
 tion to that inquiry. On the 13th, Mr. Wagner acknowl- 
 edged tlie receipt of this letter, and on the 4th of January, 
 1879, transmitted a certified copy of the survey and plat ap- 
 proved by Surveyor General Mandeville and the certificate 
 of Surveyor General Stratton that the survey had been duly 
 published under the act of 1866. Surveyor General Wag- 
 ner transmitted with this survey and plat a paper filed on 
 the 4th of March, 1878, by John Huntley, L M. Edrington, 
 W. H. Morrow, and J. A. Yorba, in which, as "owners, 
 claimants, and residents upon lands claimed by them to be- 
 long to the Rancho Santiago de Santa Ana," they protest 
 against the approval of said survey by the Commissioner, 
 because, as they allege, "said survey, aa made, excludes 
 lands embraced within the grant, and the juridical possession 
 thereof, lying to the west of the lands included in said sur- 
 vey, and contiguous thereto, amounting to about 12,270 
 acres, being in townships 5 and 6, ranges 10 and 11, west S. 
 1>. B. & M. ; that the said survey has not been made in accord-
 
 8 
 
 aiice with the calls of the orii^iiial title papers, since it ex- 
 cludes the lands aforesaid, and since the southern boundary, 
 as called for in the original title papers, is the 'CJewejfrt </^ 
 las Benas' and not the '■(^a-r'tta de his Renas* as shown by 
 the Hujjcock survey, thereby excluding from said survey a 
 large tract of land on said southern side of said rancho. 
 . . . . Therefore the}- ask for another survey, &c."' 
 In transmitting said survey. Surveyor General Wagner 
 makes u report in which while stating that he had refusi'<l 
 to consider the protest of Iluntlo}', Edrington, and others, 
 because not tiled in time, sho vs that he had in fact con- 
 sidered it, and liad taken ever^- means in his power to sus- 
 tain it by ordering his deputy (Miiito) to go upon the ground 
 and investigate their allegations, by taking upon himself the 
 unusual trouble of going in person upon the ground to in- 
 vestigate then), and by recommending the adoption by the 
 Department of the report made by Minto — that the east 
 line of the Bolsas Rancho, as located b}- the Commissioner 
 and Secretary of the Interior, in 1876, was wrongly located, 
 *2 and included a larije tract of land belonging to theSantiasro 
 "^ l^ancho. 
 
 ^ The undersigned, as counsel for the owners of said Bol- 
 
 S sas Kancho, objected to these proceedings as confessedly 
 
 "* unauthorized and injproper, and on the ground that it was 
 
 ^ a renewal of the contest which these same persons had made 
 
 S as settlers and as representatives of the settlers upon the 
 
 land in (piestion against the IJolsas survey-, and which had 
 
 been decided against them once by the Commissioner, three 
 
 several times by the Secretary of the Interior, and then by 
 
 the Attorney General, and that as Santiago claimants they 
 
 were barred from contesting the survey by having accepted 
 
 it, and subdivided their lands under it, and b^' failing to 
 
 except to it within 90 days after publication made as required 
 
 by the act of 1864. 
 
 On the 10th of October, 1879, Messrs. Britton and Gniy 
 
 :iU4792
 
 eutered their appearance for the applicants for resurvey, 
 and on the 16th of April, 1880, filed affidavits taken by 
 Brown & Wells, at their rc<juest, in support of this appli- 
 cation, and on the 3d of July, 1880, the Commissioner 
 instructed the Surveyor-Cicneral to tjike such testimony as 
 the parties might otier to prove the location of the Santa 
 Ana river in 1801. On the 1st of August, 1881, the Sur- 
 veyor-General reported, and transmitted the testimony 
 which had been offered by Mr. Wells in behalf of said set- 
 tlers, and taken on the 12th of October, 1880, "to establish 
 the line of the Santa Ana river as it ran in 1825, on the 
 line between the Santa Ana grant and the Los Bolsas." 
 (Page 5 of the procee<lings before Commissioner to take 
 testimony.) 
 
 Before stating this testimony Surveyor General Wagner 
 calls attention to the following facts shown bv the field 
 notes of the Santa Ana survey-, viz : that in 1857, after Han- 
 cock, the deputy surveyor, had begun to trace the line shown 
 by the witness, Rafael Cailcdo, asthe bed of the Santa river 
 as it existed in 182.3-'24, as the dividing line between the 
 ranchos, and had arrived at a cotton-wood tree, eighteen 
 inches in diameter, standing one chain oast of said bed, 
 Abel Stearns appeared on the ground, accompanied by 
 Joaquin Kuis; that Kuis then stated to. said deputy 
 that he, Kuis, was one of the cord-bearers at the de- 
 livery of the juridical possession of the Bolsas Kancho; 
 that said tree was on the northern boundary of that rancho, 
 and that that boundary was continued beyond and ran past 
 that tree to the river, and thence down the river to the 
 sea; that, after receiving this statement from Kuis, Han- 
 cock continued to follow the line pointed out to him by 
 Caiiedo, until it reached a point where, as the witness said, 
 the river " went scattering." He then returned to saul 
 tree and followed the line pointe<l out to him by Ruis, the 
 same being also the line pointed out to him by Murillo, who
 
 also assisted at the act of juridical possession of the Bolsas, 
 and being the line which one of his witnesses testified had 
 been shown to hini by Jose Antonio Yorba, as the be«l of 
 the river prior to 1825, and which accorded with the desino 
 contained in the instructions j^iven to said deputy by the 
 surveyor-general, and finally adopted this line as the bonndarN* 
 between the Santa Ana and Uolsas Kanchos; that some of 
 the owners of the Santii Ana Rancho protested at the time 
 against this decision of Surve3or General Hancock, al- 
 leged that the desino had been made b}' William Mooney 
 for the owners of the Bolsas, and had been incor|>orated in 
 the instructions by accident, and that Mooney had after- 
 wards stated to tlie dej»uty that he did make said desino^ but 
 had made it as directe<l by Jose Antonio Yorba, one of the 
 orrantees of the Santa Ana Rancho. Surveyor General 
 Wagner reports Hancock as saying, that Mooney said he 
 made the disino for tlie Bolsas claimants, whereas Hancock 
 reports that Mooney said he made it as directed by Jose 
 Antonio Yorba. 
 
 Having stated these facts, Survej'or General Wagner sums 
 up the oral testimony of C'afiedo, Sepulvedo, Chevoj'o, Man- 
 riquez and Poyoreno, states that Desidero Ybarra in his 
 deposition before the Land (Commission in 1852, in the Santa 
 Ana case, testified that a new channel had been formed in 
 1811, but did not locate it: that the desino in No. 103 for the 
 Santa Gertrudes Rancho confirms Ruis' statement to Han- 
 cock respecting the northern line of Las Bolsas; that the 
 map accoMipanying the deposition of Lander in cjise Xo. 88 
 of H. S. V. Garcia and others for Los Xogeles shows the old 
 bed of the river, and c«>ncludes that the map of Minto shows 
 correctly the «)ld bed of the river, and recommends that 
 Mintos line, marked in blue on his map, be adopted as the 
 boundary between the Ranchos of Las Uolsas and Santiago 
 «le Santa Ana. 
 
 Li this, as in the jirevious contest, the settlers and tlieir
 
 counsel took their witnesses upon the land in question, ac- 
 companied by a surveyor to lay down the line claimed by 
 them to be the east line of the Bolsas Hancho; on the first 
 occasion as the line which divided that rancho from the lands 
 then claimed by them as public lands, 13'ing between that 
 rancho and the west line of the Kancho Santiago de Santa 
 Ana, which at that time all parties recognized as having 
 been correctly surve3'ed ; and, on the last occasion, as the 
 dividing line between the ndjoining Ranchos of Santa Ana 
 and Las Bolsas, they then claiming under the Santa Ana title, 
 and seeking to locate its west line further west. On the first 
 occasion, in May, 1875, Thomas J. Ellis was the surveyor, 
 and he testified that he laid down the line marked "old 
 bed of the Santa river," in his map, marked "Exhibit A," 
 on the representations then made on the ground to him by 
 Pedro Lopez, Manuel Ditarte, Juan Banlista Manriqaez, Edu- 
 urdo Poi/oreno, Rafael Caiiedo, and Ramon Aquilar, the last 
 three of whom accompanied him as far as station 9, about 
 two miles and a half, and the first three, all the way to the 
 ocean. This line starts from a water hole situated near 
 station 78 of Hancock's oflicial survey of tlie Santa Ana 
 Rancho, and station 1 of the Bolsas survey. This line, 
 which will be here called "the Ellis line," runs southwest 
 from the water hole, and reaches tide water between six and 
 seven miles west of the terminus of Hancock's western line. 
 On the second occasion, on the 12th day of October, 1880, 
 deputy Minto was the surveyor, and the witnesses present, 
 who professed to testify from personal knowledge of the lo- 
 cation of the old bed of said river, and on whose representa- 
 tions he laid down the line, were Joaquin Chevoya, Rafael 
 Cauedo, Juan Banlista Manri'fuez, Manuel Duxirte^ J. C Se- 
 pulredo, and Edwardo Poyoreno. This line starts also from 
 the water hole, but runs southwardly, about midway be- 
 tween the Hancock and Ellis lines, but joins the Hancock 
 line before reaching the sea. It will be spoken of here 
 as "the Minto line."
 
 The only testimony cited l)y Surve^-or General Wagner 
 to support the Minto line is tli:it given by Rafael Caiiedo, 
 Clievoyo, Manriquez, J. C. Sepulvedo, and Edwardo Poy- 
 orena. Canedo stated that the river ran through said water- 
 hole, called by others the "Posa," and on the Minto line 
 prior to 1823 or 1824, but that it changed from that to its 
 present bed at that time, and whilst he was residing at Los 
 Angelos. Chevoyo and Mauriquez testiiied to same effect. 
 Sepulvedo said he crossed it in 1825, when he was eleven 
 vears old, and that it then ran from three to five miles fur- 
 ther east than its present line. Poyorena testified that the 
 land occupied by him, about eighteen years prior to that 
 time, was part of the Santa Ana Rancho, and lay between 
 the old river and the new, and tliat he had then objected to 
 the lUrve}', which was then being made b}- Steam's direction, 
 and pointed out the Minto line as the dividing line recog- 
 nized by the adjoining owners. On cross-examination it 
 appeared that his land lay beyond and east of the Bolsas 
 survey. 
 
 The other testimony given for the settlers was by Coronel, 
 who states that Bernardo Yorba, one of the Santa Ana heirs, 
 claimed to the Minto line, and by Iluntlej', Stahl, Edring- 
 ton, and Ellis, recent settlers, and all interested in settler 
 claims. They give opinions founded on examinations of the 
 surface of the ground. 
 
 Rafael Peralta, one of the heirs of Juan Peralta, to whom, 
 witli Jose Antonio Yorba, the Santa Ana grant was made, 
 and Leonardo Cota, also interested in that grant, were in- 
 troduced by Mr. Forbes, of counsel for parties claiming 
 under it, but adverse to the extension of the survey over 
 the lands patented to the Bolsas claimants, as now proposed 
 by the settlers, and repeated the testimony given in the 
 former contest, when the settlers claimed the land as public 
 land. 
 
 Paralto stated that he was born in 1816, and raised on the
 
 8 
 
 Santn Ann Kanclio; luul been iiiterostcMl in both niiicbos — 
 ill the Santa Ana Rancho in his own right, and in the l»ol- 
 sas in riglit of liis wife, wlio was a daughter of Catarina 
 Kuis, the grantee, lie liad known the location of the river 
 since 1827, and knew that the line recognized as the divid- 
 iiiir line between the ranchos was the river as it flowed in 
 1880; that the 8epulvedo house, occupied by Antonio 
 Yorba, situated on the east side of the river, was about one 
 and a half miles from the Paredez house, occupied by Cata- 
 rina Ruis, situated on the west side of the river, about a 
 mile from it, and one and a half miles east of the Sylvester 
 or Bolsa house, and on a li'ie between it and the Sepulvedo 
 house ; that the rodeo grounds of the Bolsas Rancho were 
 near the river and on the op[iosite side from the Aguilar 
 house, which was built in 1852, 'o3 or '54, and was situated 
 on the point of the Mesa, and about 200 yard's east of the 
 river; tliat these grounds were used as tlie rodeo grounds 
 of Bolsas Rancho from his earliest recollection, and con- 
 tinued to be so used as late as 1856, when he went awa^-; 
 that he remembered from boyhood two large Aliso trees 
 which were near each other, on the river, above the Sepul- 
 vedo house — one was on the same side of the river as that 
 house, the other, which was shaped like a crutch, was on 
 the opposite or west side of the river. That he worked 
 about ten 3'ears for Jose Yorba, l)etween 1830 and 1845, 
 who then resided in what is now Middle Santa Ana. Yorba 
 afterwards lived on wliut is now called Lower Santa Ana, 
 where the Sepulvedo house, built in 1854, now stands. The 
 river changed, after he went away in 1856, to its present 
 channel to the west of Anaheim. 
 
 Lopez, the chief witness of the settlers in the first con- 
 test, conlirmed Paralta's testimony as to the location of the 
 Paredez house. 
 
 Guadalope Ruis, who worked three years for Ramon 
 Yorba, beginning in 1845, afterwards for Catarina Yorba
 
 9 
 
 for two yaiiTu, ami for twelve years was chief herder for 
 Abel Stearns, testified that the river ran soiitli along the 
 ed<re of the Santa Ana Kancho (as snrveye<l) about half a 
 mile from the Sepulvedo house, and about 200 yards from 
 the Aguilar house, and that the IJolsas rodeo grounds 
 went nearly up to the river opposite the Aguilar house. It 
 was about two and a half miles from the Sylvester or 
 Bolsas house, about a mile from the Paredez house and half 
 a mile from the Sepulvedo house. He locates the river at 
 that time, also, with reference to the site of an old grave- 
 yard still visible, which, he says, was about 800 yards west 
 of the Paredez house. There was no claim of ow^nership 
 by the Santa Ana owners for any lands be^-ond the Hancock 
 line at any time during these seventeen years. 
 
 Leonardo Cota, also a native of the county, and a man 
 who had held various official positions, and among others 
 that of councilman of the Ayuntaniiento and a judge of 
 First Instance, confirmed all these statements as to the posi- 
 tion of the river in 1842, with reference to the Sylvester, 
 Puradez, Sepulvedo and Aguilar houses. 
 
 Ramon Aguilar also gave the same location for the river 
 in 1830 with reference to these houses. 
 
 This location was also testified to by Wn). Mooney, who 
 made the desino contained in Hancock's instructions as 
 directed by Jose Yorba in 1844. 
 
 Charles Forbes, snperinten<lent of Steam's ranchos since 
 1859, testified that the river then ran past the Sepulvedo 
 and Aguilar houses, as located by Hancock. lie had gone 
 over the surveyed line on the 13th of June, and found it to 
 conform to the line of the river as he knew it in 1859. In 
 1862 it abandoned tliat channel, and made the new one to 
 the west of Anaheim and joined the San Gabriel river at 
 Alemitos; one of the IJolsas rodeo grounds, was in section 
 32, opposite to the Aguilar house. The Paredez house was 
 aV>out a mile and a half from the Sepulvedo house. The 
 2
 
 10 
 
 i;iavoyar<l is in secti<»ii 10. Saw the <.Tiitcli-sl:ai)otl tree on 
 till' west l»ank of the river in 1851», and it is still standing 
 there. Knox, a surveyor, traced this west line of the Han- 
 cock survey of the Santa Ana Kancho on the ground on the 
 13th of June, 1875, accompanied by Olden, agent for the 
 Stearns Kanchos. They found the northeast corner of the 
 Bolsas Kancho on this line in the bed of the river, and the 
 line followed the river for one-half a mile, leaving it then 
 to follow a well-defined channel grown up with brush for 
 about two miles. Then it struck across a bend, leaving the 
 channel in section 15, about one hundred and fifty yards to 
 the east, and striking it again in section 22, a mile below, 
 and follows it past the Aguila liouse to tide-water. About 
 a mile and a half above that house it measured sixty-three 
 tcct in width, and, half a mile below, about seventy-three 
 feet wide ; and the banks at these places measured five feet 
 on one side and two feet on the other. Through sections 
 22, 27, 32, and 33 the channel averaged from fifty to sixty 
 feet in width. And there was all the way down from Ross's 
 fence, in section 27, whore the line leaves the present river, 
 an unbroken belt of tall trees, two hundred feet in width, 
 on both sides of the channel. This belt of tall trees was 
 visible from a gresit distance, and distinguished this channel 
 from every other wash or channel, there being no such belt 
 of trees on the banks of any of them. 
 
 At the hearing, under tlie allegation in the protest that 
 a large tract of land was excluded from the survey by the 
 survey ors's mislaking the call for the Oienega de las Renas for 
 a call for the Gerriio de las Renas, the settlers undertook to 
 prove an entirely difterent thing, viz: that the eastern line 
 of the survey should terminate at the head of Newport Bay, 
 instead of passing to the west of it, and crossing the bay. 
 For this purpose the testimony of Deputy Surveyor Reynolds 
 is oft'ered, who gives it as his opinion that that would be 
 the proper location of the line, and testimony is offered to
 
 11 
 
 shuw tliut the owner <»!" the lul joining raiicho (the San Joa- 
 quin) said that the ranehos were divi<le(l by the bay. Per 
 contra. The owner's deed to Flint, Bixby & Co. negatives this. 
 Surve3<»r General AVagner says there is little to determine the 
 course of the line. The survey corresponds with the desino 
 in locating it west of the bay. The 8anta Ana claimants 
 neither objected to the location at the time it was made or 
 at any time since. 
 
 ARGUMENT. 
 
 The Ecidence. 
 
 1. Deputy Minto repeats, in his last report, the statement 
 of his first, in saying, p. 2, that, "whilst it is very easy to 
 .see that changes in the bed ot the river have occurred, it is 
 extremely ditKcult to determine by observation whether, iti 
 many cases, a given channel has been the river bed or only 
 an overflow channel." 
 
 For this reason, after passing the point where the river 
 '■'■ireiit scatter iiu I ^'' " he considers it impossible, from topograph- 
 ical data, to arrive at any definite conclusion as to the chan- 
 nel of 1801 or 1825." And as, with respect to that part of 
 the line, he says, "the evidence is contradictory and in- 
 definite," and he had therefore neither topographical nor 
 oral testimony to guide him, ho ought certainly to have re- 
 fused to lay d(»wn any line as the bed of the river beyond 
 that point, as Hancock had done with the same witness and 
 documents twenty-five years before, when, if there had 
 reallv been anv such channel there in 1825, the means of 
 finding it were infinitely greater. But instead of doing 
 this lu' proceeds to locate a channel from that point to ti<le- 
 water, sjiying, with respect to that location, "that the docu- 
 mentary evidence in the archives afiords the only solution 
 of the (iuesti«)n." Having thus asserted that there were
 
 12 
 
 ilocuiiients which enabled him to make this location, he 
 was certainh' bound to specify them. As he failed to do 
 this, and as no such effect was claimed before Hancock for 
 any of the documents, with all of them before him, or since, 
 it is fair to assume that there is no such document, and tliat 
 this part of Minto's line is entirely arbitrary and con- 
 jectural. 
 
 Hancock's field notes, referred to by Surveyor General 
 Wagner, show that in 1857 some of the parties interested 
 in the Santa Ana Kancho insisted that the line ran south 
 from the Posa to the sea; that, to investigate that claim, he 
 followed the witness, Canedo, along the wash pointed out 
 by him as the channel for about a mile and a half, until he 
 reached a point where the witness himself said the river 
 "went scattering." This was an admission that this chan- 
 nel extended no further, and that the water ran in it only 
 when it was at such a stage as to scatter or overflow at this 
 point, and make no channel beyond. As this took place at 
 a ffreat distance from tide-water it could not be the channel 
 called for, as it di«l not form a complete boundary. 
 
 After this failure of the Santa Ana claimants to point 
 out a boundary, Hancock investigated the ehannel claimed 
 b3' the Bolsas claimants to be the dividing line between them 
 and the Santa Ana Kancho. This was supported by two 
 witnesses who had participated in the act of juridical pos- 
 session of the Bolsas Uancho, (which the law recpiired the 
 Santa Ana claimants should be notified to witness, and pre- 
 sumably did witness,) by the dcsino niade by Mooney under 
 the direction of Jose Antonio Yorba, one of the Santii Ana 
 grantees ; bv the testimonv of another witness that Jose 
 had admitted this to be the line, and by a channel which did 
 not "go scattering" before it reached tide-water, but re- 
 mained clearlj' define«l on the ground down to tide-water, 
 having an average width all the way of from fifty to sixty 
 feet, and l>anks of from two to five feet in height, which
 
 13 
 
 Minto himself pivrtly adopts, and which was still better 
 attested as the channel by having along its whole extent a 
 belt of tall trees of 200 feet in width, which was visible from 
 a great distance, and such as appeared along none of the 
 washes or later channels. Such facts were conclusive. 
 
 And when it appears that no objection was ever after- 
 wards made to the line which these and other facts then 
 established to the satisfaction of deputy Hancock, by any 
 one of the Santa Ana claimants, either when it was reported 
 by Hancock, in 1857, as their boun<lary, or when afterwards 
 reported, in 18G0 and in 1863, and agafn in 1868, by Han- 
 cock and Hoffman, as the boundary of the Bolsjis, or when 
 it was before the district court, in 1868, and again in 1874, 
 although notified at each of those six several times to object 
 if they had any objection to oft'ur, and, having acquiesced in 
 it under such circumstances for a quarter of a century, there 
 can be !Jo doubt that it was the true boundary between these 
 ranchos. And this conclusion is greatly strengthened by 
 the fact, disclosed b3- the field notes and otiier testimony, that 
 previously there had been contention res])ecting this line. 
 
 It being established that they afterwards accepted the lino 
 not oidy by failing to object to it, but by making partition of 
 the tract among themselves in accordance with the survey, 
 the inference is irresistible that they did so because upon the 
 fair and full invostiijation then njadc bv Hancock it became 
 manifest that it was the true line. They had, by the con- 
 fession of their of their own witness, failc«l to point out any 
 boundary in the direction of the Minto line. What had 
 api»eared to be a channel at the water-hole having proved 
 itself to be a mere overflow wash by disappearing entirely 
 before it got one-third of the way to the sea. 
 
 Nor is there anything in the testimony since taken by the 
 settlors to shake this conclusion. Minto himself admits 
 that he could not distinguish the channel he adopts even 
 where he could trace it on the grouml from an overfl«)w
 
 14 
 
 wash. He adopted it upon oral testimony and some un- 
 named documents. The oral testimony was given by Che- 
 voya, Canedo, Mariquez, Duarte, Poyoreno,and Sepulvedo. 
 Canedo was the witness who pointed out this channel to 
 Hancock in 1857 as the old bed to where it vanished. 
 
 Ellis states that his line was also pointed by Canedo to 
 him in 1875 as the boundary down to Station 9, the point 
 near which that supposed channel also vanished, or where 
 the sand streak disappeared. He states, also, that Poyoreno, 
 another of the Minto witnesses, also testified to the Ellis 
 line to that point. There Canedo and Poyoreno deserted.' 
 But Duarte and Mauriquez, who now vouch for the Minto 
 line, then held on to Ellis, notwithstanding the total disap- 
 pearance of the sand streak, and Kwore that the Ellis line 
 was the old bed of the river down to the sea. 
 
 All that Sepulveda says is that he crossed the river in 
 1825, and that when he crossed it it ran from three to five 
 miles further west than where it now runs. But, beside 
 that, in 1825 he was but eleven years old and fifty-five years 
 hud elapsed when he testified, Canedo states that in 1825 
 the river had changed to the Hancock line, the change tak- 
 ing place in 182^3 or '4, while he resided at Los Angelos. 
 
 Chevoya, the remaining witness for the Minto channel, 
 was but thirteen or fourteen years old in 1825, and belonged 
 to the San Gabriel Mission. Yet he says he knew of the 
 location of the channel at that time, because he then worked 
 on the Bolsas ranch four or five months for Javier Murrillo, 
 father of Justo. The age of the witness at the date in ques- 
 tion, and his belonging to the Mission, and the fact tbat the 
 Bolsas ranch never belonged to the father of Justo Murillo, 
 whose interest in it came from his wife, a daughter of Nieto, 
 makes his story improbable. It is manifest, therefore, that 
 Canedo is now, as be was when he appeared before Hancock 
 twenty-five years ago, the sole witness for the Minto line, 
 and he could then and now only show it about ono-thini of 
 the wav to the sea.
 
 • 1ft 
 
 But the Santa Ana i^raiit «1«k's not call for the channel of 
 1825, and Surveyor (Jeneral Wai^ner was not instructed to 
 report about such a channel. The grant dates from 1801, 
 and hence it is to the channel of that date it refers, and Sur- 
 veyor General Wagner was instructed to report where the 
 channel was at that time. If we accepted Cailedos's testi- 
 mony, as to the location of the channel of the river in 1825 
 as far as it goes, and Minto's imagii.r*'on for its location be- 
 yond it could not be inferred that a stream so changeable had 
 been in this bed twenty-five years before, even if there was no 
 evidence that it had not changed in the meantime. But there 
 is positive evidence in the record that it did change in 
 1811; that, after this change, it returned to its old bed, and 
 that this old bed was the bed it occupied in 1852, and the 
 testimony is positive that the bed of 1852 is correctly- loca- 
 ted by Hancock. Jose Desidero Ybarra, who testified, in 
 1852, at the age of sixty-nine, before the Land Commissicrti, 
 in the Santa Ana case, said, "there was a new channel 
 formed by the Santa Ana river by the flood of 1811. Pre- 
 vious to that time it flowed in its bed, {La Caja Vieja.)" 
 
 The witness is here sitc.iking, in 1852, of the Santa Ana 
 river as the boundary of the rancho called for in the grant 
 of 1801, of which, being, at the date of the grant, eighteen 
 years of age, he was competent to speak. He says this river 
 had changed, in 1811, from its bed, meaning the bed of 
 1801, called for oji the grant, but adds that it has now, 
 in 1852, got back to its bed. An<l as all the testimon}- con- 
 curs in showing that, in 1857, when Hancock followed it 
 and located the west line upon it, the river remained in the 
 channel occupied by it in 1852, and did not change from 
 that bed until 1862, it follows that the west line of the 
 Santa Ana grant was correctly located in the channel of 
 1801. 
 
 Ybarras' testimony may explain how Caiiedo and others 
 who were too 3'oung to recollect the channel before its
 
 16 
 
 cliaiii^eiii 181I,un<l only knew tlic ohaiinel uftor that cliauge 
 and after the change in 182S-'24, shoukl have supposed that 
 tlio channel which it may have occupied from 1811 till 
 1823-'24 was the old channel. But, as Ybarra states in 
 1852, that prior to 1811 the river ran in its present bed, and 
 this is its old bed, having changed back to it between 1811 
 and 1852, and as it is beyond dispute that the river, as Han- 
 cock found and followed it in accordance with the testimony 
 of two of the persons who had participated in the act of juri- 
 dical possession on the Bolsas Kancho, was in the same chan- 
 nel as in 1852; it is absolutely certain that the channel of 
 1825, neither as shown by Caiiedo nor in any document, as 
 the old channel was, in fact, the channel of 1801. It ma^- 
 liave been an old channel in the sense of having been a chan- 
 nel formerly occupied by the river, but it is not the channel 
 called for, either by the Santa Ana or by the Bolsas grant, 
 neither of which called for the old channel, but for the chan- 
 nel, and therefore for the channel as it existed in 1801 and 
 in 1834, which were the same. This is shown by the testi- 
 mony and the accordance between the representation of the 
 river in the Steam's desino of 1834 and the official survey is 
 itself a demonstration of the accuracy of the latter. And it 
 must be remembered that it is for the river as it is laid down 
 on that desino, and not for any old channel marked on it, that 
 the grant calls. 
 
 The map accompanj'ing Lander's deposition in the No- 
 gales case, so far from sustaining Minto in locating the line 
 southwardly through the Posa, follows the official survey 
 from station 78 to station 82, and Minto himself only adopts 
 his conjectural line below because he assumes that the chan- 
 nel passed through the Posa above. 
 
 The contest respecting the east line is evidently a sham, 
 made only to help out that with respect to the west line.
 
 17 
 
 II. — Estoppel. 
 
 (1.) This is confesseilly the same question, jis to whether 
 the east houndary of the Bolsas rancho was correctly located 
 hv the Hancock and Iloft'man surveys, which was three 
 times decided by the Secretary of the Interior in 1876. 
 And it is a contest for a part of the same land between the 
 same parties, (the settlers and the Bolsas claimants,) upon 
 the testimony of the same witnesses. It is true that the 
 settlers have shifted their i^round in t\fo respects. They 
 then claimed the lands as public lands, lying between the 
 true east boundary of the Bolsas and the west line of the 
 Santa Ana rancho, as survo^-ed, and, as they tlien claimed, 
 correctly surveyed, while they now claim the lands under 
 the Santa Ana title, and deny the correctness of the survey 
 which they then conceded. They have also shifted their 
 ground as to the location of the cast line of the Bolsas, and 
 seek to locjite it about midway between what they then in- 
 sisted was the channel of the Santa Ana river called for as 
 its boundary and the line of the official survey. But 
 these changes of position by the settlers do not vary the 
 (piestion then decided from that now presented. Now, as 
 then, the (piestion is whether the line laid down by Han- 
 cock and Ilofiinan as the dividing line between the ranchos is 
 correctly located. Mr. Wells announced, p. 5 of the proceed- 
 ings before the Commissioner to take testimony, that he ap- 
 peared to establish "the line between the Santa Ana grant 
 and Las Bolsas," and disputed the correctness of the Han- 
 cock and Hoflinan line, and the circumstance that the parties 
 he represents, who are the same in name and description as 
 '■'■ rcskknts upon the lands," as those who formerly claimed 
 it as public land, now claim it in right of the Santa Ana 
 title, and seek to establish a different Hue from that for- 
 merly asserted by them as the cast line of the Bolsas, will not 
 authorize the Commissioner to disregard the thrice repeated
 
 18 
 
 tk'cision of tlie Secretary of the Interior, holding that the 
 Hancock an«l IIof}inan line is the true dividing line between 
 the ranches. 
 
 (2.) If the settlers were not barred as settlers by these 
 decisions from renewing the controversy, they are barred in 
 their assumed character as Santa Ana claimants, by the act of 
 1864, 13 Stat., 332, from contesting that line, because they 
 failed to object to it within ninety' daj's after the notice of 
 their survey was published. But while this contest is openly 
 carried on by the^e parties, and solely for their benefit, for 
 the United States can gain nothing by it in any event, it is 
 allowed under the authority given to the Commissioner of 
 the General Land Office, by the 1st section of the act of 1864, 
 requiring the survey, when no objection is made to it, to be 
 transmitted to him jfor Ids cxammation and approval.f This 
 language, it is contended, authorizes the Commiswoner not 
 only to examine and approve the survey, if it appear to be 
 correct, according to the record, or to disapprove it, and 
 order it to be corrected, if it does not conform to the record, 
 but to authorize him to permit a contest to be made to 
 all intents and purposes in the same manner as if objection 
 had been made within ninety days. 
 
 Where objections are made within that time the law says, 
 *' the survevor general shall transmit to the Commissioner 
 of the General Land Office a copy of the survey and plat, 
 and objections and proofs filed with him in support of the 
 objections, and also of any proofs produced by the claim- 
 ants and filed with him in support of the survey, together 
 with his opinion thereon, and if the survey and plat are 
 approved by the said Commissioner, he shall endorse thereon 
 a certificate of his approval. If disapproved by him, or if, 
 in his opinion, the ends of justice will be subserved thereby, 
 he may lequire a further report from the Sarceyor General of 
 California touching the matters indicated by him^ or proof to be 
 taken thereon, or may direct a new survey and plat to be 
 made."
 
 19 
 
 These jtrovisioiis apply only when ohjections have been 
 made within ninety days. When objectiotis are not made 
 the law provides only for "examination and approval" of 
 the survey by the Commissioner. -^It is not denied that as 
 the Commissioner is authorized to examine and approve, he 
 may <lisapprove if, upon examination of it and upon compar- 
 ing it with the record, he finds that it is not correct^ But 
 when the law permits only an "examination of the survey by 
 the Conunissioner," it does not ailmit of an inquiry outside of 
 the record. And not only do the words themselves so lintit 
 the power of the Commissioner, but the diftbrent language 
 used wlicn objections are iiled and an investigation beyond 
 the record is contemphitcd, shows that it was intended to 
 confine him strictly to an examination of the survey itself, 
 to see that it conformed to the record. Nothing but the 
 survey and plat is directed to be sent up to him. In that 
 case all other matters are excluded from his consideration. 
 Hence it was a violation of the terms of the law for the 
 surveyor general to accomparty the survey and plat which 
 had been approved by his i)redeccs5or in 1850, and adver- 
 tise<i in 1860 and again in 1874, without objection, with the 
 objections filed by the settlers in 1878, and the report sus- 
 taining them which he caused to be made by a deputy, and 
 his own statement in which he stultified himself by saying 
 that as the objections were filed out of time he did not con- 
 consi<ler them, while stating that he had not only consid- 
 ered them and sustained them, but had taken the extraor- 
 dinary course of sending a deputy to the ground, andg-^ing 
 tiiere himself, in person, for that purpose. 
 
 It is only when objections have been filed within ninety 
 days that the survey«)r general is authorized to take and 
 send np evidenee or any report or recommendation of his 
 own with respect to the survey, and it is only in that case 
 that the Commissioner is authorized to have new evidenee 
 taken, and a furl her rep«»it from the surveyor general.
 
 20 
 
 And tliis view accords not only with the whole scope of the 
 act, but it accords with the policy of the prior act of 1860. 
 Under that act, when no objection was made to taking 
 the survey into court, the survey became final. So, under 
 the act of 18G4, when no objection was made, the surveyor 
 sreneral was iriven no discretion whatever over the sub- 
 ject, and was not authorized to make any investiga- 
 tion or report, l>ut is recjuired to approve the survey' 
 as it stands, and send it to the Commissioner for his 
 " examination and approval." It is only when objections 
 are made that he is authorized to accompany the proofs 
 filed by the parties with an opinion or report. And hence 
 it is only to such case that the language of the law author- 
 izing the Commissioner " to require afar/licr report from the 
 surveyor general touching the matters indicated by him or 
 proofs to be taken thereon," can have any application, for 
 in the other class of cases the surveyor has no discretion, 
 and gives no opinion, but is retjuircd to approve the survey 
 and forward it to the Commissioner. It is only in con- 
 tested cases that he is authorized to accompany the survey 
 and plat with a report, and hence it can be only in such 
 cases that the requirement of a further report could apply. 
 
 It is too plain for argument that the law does not con- 
 template such a controversy as is here pern>itte<l under color 
 of an " examination " of a survey bN- the Commissioner. Tite 
 same proceedings in all respects are here permitted by per- 
 sons now acting for and in the name of the Santa Ana 
 claimants, as if those claimants had, instead of accepting the 
 survey made for them a quarter of a century ago, and since 
 duly advertised, and partitioning the land among themselves 
 upon it, had excepted to and contested it. And the Bolsas 
 claimants, having adopted the west line of the Santa Ana 
 liancho as their east line long after it was accepted by the 
 Santa claimants as the dividing line, and, having run the 
 gauntlet through the offices of the surveyor general, the
 
 21 
 
 Commissioner of the General Land Office, the Secretary of 
 the Interior, and tlie Attorney General, hounded by the 
 settlers' league for the past six years, and, having succeeded 
 after having expended a great part of the value of the land 
 in defending tlieir title against the claim that it was public 
 land, are now required to renew the contest with these same 
 parties in the guise of Santa Ana claimants repudiating 
 the line accepted and acquiesced in by the real Santa Ana 
 claimants for about a generation. It is under these circum- 
 stances that Surveyor General AVagner is induced by the 
 league to avail himself of the neglect to send up the survey 
 and plat of the Santa Rancho at the proper time, to retain 
 it even after it was called for by the Commissioner, to send 
 one of his deputies to inquire into the correctness of the loca- 
 tion of the line in (piestion, and to go himself in person 
 upon tlic ground, und wlien he does finally comply with the 
 repeated request of the Conimissioner to send up the papers 
 to accompany them with a volunteer report denying the 
 correctness of the line which ha<l stood unquestioned for 
 more than twenty years. When this survey came up with 
 this illegal volutitcer report, Messrs. Britton & Gray, as 
 counsel lor the league, were heard by the Commissioner, 
 and, at their instance, the survey was remanded, with orders 
 to allow the parties to offer new testimony, and, accordingly, 
 the settlers appeared, and put in the testimony of the same 
 persons, and that of a few others, offered on the previous 
 contest. 
 
 There is, in fact, nothing to distinguish the contest now 
 in progress from what would have taken place had the 
 Santa Ana claimants excepted to the survey at the time on 
 the ground now suggested. This certainly defeats the ob- 
 vious intent of the law, which was to prevent such contro- 
 versy when the parties failed to except, and to expedite ac- 
 tion upon surveys and (piiet titles. On this construction of 
 the law It is not necessary for parties to file objections to
 
 22 
 
 surve^-s within ninety days after they are advertised to he 
 entitled to contest them. The Commissioner, in virtue of 
 his power to examine tlie survey, may allow them to he 
 contested, and proof to be adduced pro and con, and a rej »ort 
 from the surveyor general may he procured at any time 
 before a patent is issued, just as if objections had been filed 
 within ninety days after the survey was advertised. If ain' 
 public object could be subserved by this contest, there might 
 be some justification for its toleration by public officers. 
 But here private interests onlj' are involved, and the pub- 
 lic can in no event profit by the contest. The object of 
 allowing the Commissioner to examine a survey which was 
 accepted by the claimant, and not objected to by any adverse 
 claimant, was to enable him to protect the public. It would 
 be a palpable and unprecedented abuse of this power to use 
 it to set aside a survev twentv-five years after it had been 
 jiccepted by the claimants, in order to extend their claim 
 over land never claimed by them, and which the Department 
 had three times adjudged to belong to another claim. 
 
 (3.) The act of 1860 and of 18G4, in requiring parties in in- 
 terest to except to surveys in a specified time and manner, 
 <lo but enforce a well-settled general principle that such 
 parties, by acquiescing in such surveys, are estopped to deny 
 their correctness. And it is not to be supposed that the 
 law, while thus estopping the only parties interested in the 
 question from directlj' contesting the survey, should, never- 
 theless, give the Commissioner of the General Land Office 
 power to permit them to do so. 
 
 (4.) In the case of Carondelet vs. St. Louis, 1 Black., IDl, 
 the Supreme Court of the United States held that the city 
 of Carondelet was estopped from claiming land lying beyond 
 the survey of her commons by having accepted the survey, 
 and the only question in the case was whether the evidence 
 was sufficient to establish the acceptance. The authorities
 
 2ti 
 
 of Carondelct liavinjr been ]>rcsi'nt wlien it was niade, and 
 liavin<^ afterwards procured a copy of it, and sul>divided and 
 leased the laud with reference to it, was held sufficient. 
 Here the acceptance is beyond controversy. Heuce, under 
 the decision in that case, the claimants would be estopped 
 to deny its correctness if tliere had been no statutory pro- 
 vision requiring them to object, in writing, within ninety 
 <lays after the advertisenjent. How can it avail the settlers 
 if they succeeded in getting tlie survey set aside, under 
 color of the Connnissioner's right to '■^examine" it, and ob- 
 t^iined a new survey and patent covering the land? Being 
 estopped both by actually accepting the Hancock survey 
 and by failing to object to it, tlie court would certainly 
 say that what the}' could not legally claim themselves 
 the Commissioner could not legally give them under the 
 [»ower to examine the surve}', especially after he had him- 
 self decided, and the Secretary of the Interior had three times 
 affirmed, that it belonged to another. 
 
 (5.) The question as to the location of this line was also 
 finally closed b}' the decree of the district court of the Uni- 
 ted States for the southern district of California, had in the 
 case of Ramon Yorba and others, claiming an undivided 
 half of the IJolsas Rancho, affirming the Hancock and Hofi- 
 man line to be the eastern line of the Bolsas Rancho. The 
 Bolsas surve}' was ordered into court in that case under the 
 act of 1860, 12 Stat., 33. By the second section of that act 
 said court was authorized, upon the application of any party 
 in interest to make an order requiring any survey of a pri- 
 vate claim to be ordered into court for an examination and 
 adjudication." 
 
 The third section provides that an order for the return of 
 the survey into court " shall be granted to any party whom 
 the court shall deem to have such interest in the survey and 
 location as to make it just and proper that he should be 
 allowed to take testimony and to intervene for his interest
 
 tliereii),un<l if objections to the survey shall be mudc on the 
 part of the United States, the order to return the survey 
 into court shall be made on the motion of the district attor- 
 ney ; and if the application for such order is made by other 
 parties claiming to be interested in, or that their rights are 
 affected bv such survey, the court shall proceed summarily 
 to inquire into the fact of such interest; * * l*rovided, hoic- 
 ecer, that all parties claiming interest under pre-emption or 
 other right or title derived from the United States, shall 
 not be permitted to intervene speedily, but the rights and 
 interests of such parties shall be represented by the district 
 attorney of the United States, * * aided by counsel acting 
 for said parties jointly, if they think proper to employ such 
 counsel : And provided, farther^ that before proceeding to 
 take testiraouy or to determine on the validity of any objec- 
 tion so made, * * the said courts shall cause notice to be 
 given by public advertisement * * to all parties in interest 
 that objection has been made to such survey and location, 
 and admonishing all parties to intervene for the protection 
 of such interest." 
 
 The fourth section provides for the taking of testimony 
 by the parties, and for the determination of the questions 
 upon the survey by the court, and requires the surveyor 
 general to correct and reform the survey already made so 
 as to conform to the decree of the court. 
 
 The fifth section provides that, when the district court 
 shall have finally approved said survey, it shall be trans- 
 mitted, without delay, to the Commissioner of the General 
 Land Office, and that the patent shall be forthwith issued 
 thereon, unless an appeal shall be taken within six months. 
 
 This recital shows that the object of the act was to invest 
 the court with jurisdiction to determine all questions of 
 boundary arising in such cases, and to require all contest- 
 ants to present their objections to any survey to the court 
 for adjudication, in the time and manner prescribed, and
 
 02SS277 
 
 25 
 
 upon their failure to do so to bar such objectious. It is 
 conceded that the Santa Ana river, which bounded the Bol- 
 sas on the west, was the boundary of the Santa Ana rancho 
 on the west. The adjudication of the Bolsas survey in- 
 volved the establishment of this common line. Hence, the 
 Santa Ana claimants were "parties in interest," who had 
 the right to intervene for the protection of their interests, 
 and, as such, were admonished to do so, it the line which 
 the survey it proposed to estal)lish as the dividing line be- 
 tween the ranchos was not correctly located. 
 
 The Commissioner and SecretJiry of the Interior have 
 already decided that the parties who now contest this line 
 when they conteste<l it as settlers and claimed the land in 
 (juestion as public land, were barred by the decree of the 
 court in the Ramon Yorba case. They cannot avoid the 
 bar 1)3' renewing the contest in the guise of claimants of the 
 adjoining rancho; for, if such an adjudication ought to con- 
 <;lude any parties, it ought to be thie owners of the adjoin- 
 ing rancho, for certainly they were interested in the loca- 
 tion of the line which was t«. «livide them from the Bolsas, 
 and had the right to intervene to have it correctly located. 
 The decisions are uniform, that all such persons are con- 
 cluded. Ilenshaw cs. Bissell, 18 Wall, 268; Rodriguez vs. 
 United States, 1 Jb., 091; Trcadway vs. Semple, 28 Cal., 
 r>52; Scrapie is. Wright, 32 Jh., G69; Yates cs. Smith, 38 
 lb., GO; Semple cs. Ware, 42 2b., 619; Alviso vs. United 
 States, 8 Wall, 340. 
 
 In Henshaw vs. Bissell the adjudication was held to con- 
 clude an adjoining owner. 
 
 Montgomery Blair, 
 Of ('outisel Jor Bolsas Claimants. 
 
 September, 1881.
 
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