Opinion of the Court. original allotments north of the junction of the rivers; and that the smaller grant was not generally known. The survey of May 18, 1880, was as shown in the map on the next page. The Court of Private Land Claims, two members dissenting, held that the claim under the grant of 1788 had been abandoned, and dismissed the petition. Mr. Henry M. Earle for appellants. Mr. Matthew G. Reynolds for appellees. Mr. Solicitor General was on his brief. MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court. By the Spanish law in force at the time of the alleged grant of 1788, lots and lands were distributed to those who were intending to settle, and it was provided that "when said settlers shall have lived and labored in said settlements during the space of four years, they are hereby empowered, from the expiration of said term, to sell the same, and freely to dispose of them at their will as their own property." But confirmation by the audiencia, or the governor, if recourse to the audiencia was impracticable, after the four years had elapsed, was required in completion of the legal title. Laws Indies, Lib. IV, Tit. 2, Law 1; Royal Order of 1754; 2 White's New Recop. 48, 62. This is admitted except that it is said that confirmation was not needed, and was not usually had, until the settler sought to exercise the power of disposition. It was also provided that it should "not be lawful to give or distribute lands in a settlement to such persons as already possess some in another settlement, unless they shall leave their former residence and remove themselves to the new place to be settled, except where they shall have resided in the first settlement during the four years necessary to entitle them to fee simple right, or unless they shall relinquish their title to the same for not having fulfilled their obligation." Lib. IV, Tit. 12, Law 2; 2 White, 49. Plat of the Cañon de San Diego Grant, surveyed by Rob't G. Marmon, U. S. Opinion of the Court. We are of opinion that the granting papers in this record taken together do not justify the presumption of settlement and working by the two Garcias on the tract contained in the grant of 1788, for the ten years prior to 1798, or for four years thereof, or any confirmation of the grant thereupon; but that the contrary is to be inferred from the testimony in respect of possession; and that Armenta's certificate of 1798 and the correspondence of 1808 conduct to no other result. The two Garcias were interpreters to the Indians and they may not unreasonably be supposed to have resided, in that capacity, at the pueblo, or on lands claimed by the Indians as appurtenant thereto. The language of the petition and decree of 1788 was perhaps somewhat peculiar, and it is manifest that Governor Chacon regarded "the cultivation and working of the land" by them as not permanent in character; for when the petition for the grant of 1798 was presented to him on behalf of the two Garcias and eighteen others, he referred in his decree to the interpreters as "temporarily stationed" on the tract solicited, and must be assumed to have been aware of the nature of their occupation. The petition of 1798 was a petition for settlement, and it nowhere intimates that the two Garcias, petitioners "in unison" with the other eighteen proposing to settle, claimed an independent interest in the Cañon de San Diego by virtue of the alleged grant of 1788, but on the contrary it states that "a quantity of vacant and uncultivated land lies in the Cañon of San Diego, adjoining the boundaries of the land belonging to the Indians of the town of Jemez," and that "the settlement thereof would be beneficial to the provinces and advantageous to our present families and descendants." The terms. of the decree are entirely inconsistent with the recognition of such a claim, and so is the act of juridical possession. In that act the Alcalde, Armenta, states that in the Cañon de San Diego de los Jemez, having summoned the natives of the pueblo of Jemez, to whom was measured the league belonging to them, he found a surplus of two thousand one hundred varas, which the Indians had, before arriving at the Cañon de San Diego, and were claiming as their own, but to which he Opinion of the Court. says they had no right in any manner; and believing that it was the wish of the sovereign that his lands be settled by his citizens wherever a surplus was found, finding no impediment, and using the authority in him vested, and finding no one with a better title, and Francisco Garcia and Antonio Garcia, the Navajo interpreters, and the eighteen other petitioners, (naming them,) being present, "all interested and well informed in regard to the matter," he took them over the lands, performing the usual formal acts in proof of legal possession, "which they received quietly and peaceably without any opposition whatever, because, after concluding all these ceremonies, I delivered to each one of the said settlers three hundred varas, with which they were well satisfied, leaving the remainder for the benefit of all, and without any other lands being left for any person to enter"; and he gave them time to understand the boundaries, which were: "On the north, the Vallecito de la Cueva, on the south the termination of the Indian league. On the east, the boundary of Vallecito; and on the west, the opening towards the middle arroyo and the Rito de la Jara"; adding: "and no injury resulting to any one they were all satisfied." Of these boundaries the southern was the north boundary of the Indian pueblo, and in making the subdivision Armenta apparently started from that boundary and, after reaching the junction of the Guadalupe and the San Diego, followed up the San Diego, which flowed through the cañon. He made the distance from the north boundary of the pueblo to the south boundary of the cañon 2100 varas, and, therefore, if he subdivided that space, must have allotted at least 3900 varas within the alleged grant of 1788, for he certified that he delivered to "each one of the said settlers three hundred varas," which would be six thousand varas in all for twenty settlers. The government survey shows that distance to have been something short of 3400 varas. If Armenta meant by "the said settlers" the eighteen co-petitioners, and left to the interpreters as contradistinguished from these settlers what they were cultivating between the two boundaries, then 5400 varas were allotted to the eighteen within the grant of 1788. In any view, allotments were made north of the south Opinion of the Court. boundary of the grant now claimed, which was entirely embraced by the grant of 1798. The evidence for the petitioners did not show where the two interpreters were located and what the particular tract was that was reputed to belong to them in fee, but the evidence for the Government tended sufficiently to establish that they did not actually cultivate any part of the grant of 1788 prior to 1798. It must be conceded that wherever the interpreters were, they were together, and it is quite clear from the testimony that Antonio Garcia, who survived until 1835, when one of the witnesses was twenty years old, cultivated and claimed ownership of land not within the boundaries of the grant of 1788, but between the south boundary of that tract and the north boundary of the Indian pueblo; and the presumption is that this was so in respect of Francisco. It is true that when Armenta gave juridical possession under the grant of 1788, he described the south boundary as "the junction of the rivers and also a point of a red table land and lands of said Indians." But at that time the Indians claimed to the junction of the two rivers, and no attempt was then made by Armenta to determine the boundary of the pueblo, as it would seem would have been the case if the grant had been of land for settlement with the intention of acquiring the legal title. When the proceedings were had before the Surveyor General in 1879-80, the original papers of 1788 were produced by claimants, and also an independent paper purporting to have been signed by Armenta on the 14th day of March, 1798, at the cañon, stating "there being assembled all the citizens who took possession of the said cañon, together with Francisco Garcia de Noriega and Antonio Garcia de Noriega, two brothers of the first possessors"; and that "the said Garcias declared in a loud and clear voice, which all heard, because they shouted it with much distinctness, and they all unanimously agreed to abide by what was said by the said Garcias, and their reasons were these. Friends and brothers, now each of you is about to take the lands, which his Majesty has granted and donated to you; but you are all notified that |