the arroyo "Mupu" to that of “Piruc,” something over five and one-half leagues; and the one for the width of the valley, something over one league, the surveyor estimating the area of the tract at between five and six square leagues.

This grant was presented by Carrillo to the Board of United States Land Commissioners, created by act of Congress, approved March 3, 1851 (9 Stats., p. 631), to ascertain and settle private land claims in California, and was confirmed by said board on April 18, 1853.

The decree of confirmation is as follows: "It is decreed that the said claim be confirmed to the claimants, to the extent and quantity of six square leagues or sitios de granada mayor, being the same land described in the grant and expediente referred to therein, and of which possession has been had and enjoyed under the same, provided that the said quantity of land granted and now here confirmed be contained within the boundaries called for in said grant and map to which the grant refers, and if there be less than the above-named quantity within the said boundaries, then we confirm to the claimants that less quantity."

Carrillo died (the exact date is not known) and his estate was administered upon in the probate court of Santa Barbara County, and a sale of the real estate was ordered for a distribution of the proceeds between his heirs at law. The Sespe grant was accordingly sold at administrator's sale; 13-14 on November 8, 1854, and 1-14 on May 14, 1855. Thomas W. More became the purchaser thereof for the sum of $18,500. These sales were subsequently confirmed by the probate court, and deeds were regularly executed by the administrators and delivered to Mr. More.

In the published notices which preceded said sales, the Sespe grant was described as containing about six square leagues, but the conveyances by the administrators to More do not state the amount of land conveyed, the description of the property being confined to the name of rancho and the county in which it is located.

A petition for review of the decision of the board of land commissioners was filed in the United States district court, by the United States district attorney, on December 29, 1854, and a summons was issued to the heirs of Carrillo to appear and defend said action on February 1, 1855, and service was perfected by the marshal on March 1, 1855. On October 18, 1855, the name of Thomas W. More was substituted by order of the court as the party appellee in place of the heirs of Carlos Antonio Carrillo, it being shown that he had become the owner of the grant after the decree was rendered by the Board of Land Commissioners.

On February 5, 1856, A. F. Hinchman, attorney for More, filed the following stipulation in the United States district court, viz: "It is admitted by the claimants in the above-entitled cause that the grant of land claimed in this case as originally delivered to Carlos Antonio Carrillo was for two square leagues of land, the quantity granted as shown in the copy of the expediente as filed in this case, and not for six square leagues. And it is further admitted by said claimants, that the said original grant was altered by rasure from two to six square leagues after the time of its execution and delivery to said Carlos Antonio Carrillo without the knowledge or consent of the governor or other officers of the late Mexican Government in California."

More testified that this stipulation was filed without his knowledge or consent, and that he never believed that the grant was fraudulently changed. The original records of the Mexican Government, however, show conclusively that it was so altered, and More is now estopped from denying the act of his attorney.

The reasons why this stipulation was filed are explained in a report made by Surveyor-General Day to your predecessor, Mr. Commissioner Wilson, dated May 22, 1869, wherein he says, "I have conversed with Mr. Hinchman, who now lives here. He says that Judge Ogier was fully aware of the attempted fraud, and frowned upon any attorney who attempted to ask for a confirmation of it. At the same time he expressed a willingness to confirm the title for two leagues. Hence the admission of Hinchman, whose client had become satisfied to take one-third of a loaf rather than get no bread. The matter was left unfinished when Judge Ogier died and it had to be reargued before Judge Haight. Colonel Whiting, then district attorney, argued the case for the United States, and he tells me that the facts were fully developed before Judge Haight, whose opinion coincided with that of Judge Ogier, and a decree was rendered for two leagues instead of the six confirmed by the land commissioners.

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"On examining the original grant on file in this office, I find the word 'seis' accompanied by signs of some kind of alteration, whether by mechanical erasure or by chemical process does not distinctly appear. The handwriting of the word 'seis does not agree with that of the rest of the document. The original barrador, or office copy of the grant kept by the governor's secretary, has the word 'dos' unaltered. So has also the old copy in the record book of titulos.'

Said grant was confirmed by the United States district court on June 25, 1862, for two leagues, the decree describing the lands confirmed to be as follows, viz: "The lands hereby confirmed are those known as 'Sespe,' situated in the county of Santa Barbara, in the southern district of California, and are of the extent of two square leagues within the boundaries called for in the grant and expediente referred to therein; said bound

aries being described as follows, to wit: bounded by the missions of San Fernando and San Buenaventura: provided, that should there be less than two square leagues within said boundaries, then confirmation is hereby made of such less quantity.

On January 12, 1865, the United States Supreme Court dismissed the appeal in said case, and issued a mandate to the district court to proceed under the judgment of June 25, 1862, as under final decree.

This mandate was filed and entered on record in the district court on December 4, 1867.

The survey of this grant was made by Deputy Surveyor Hoffman in January, 1868, and a plat thereof transmitted to your office on June 17, 1868.

By this survey said grant was represented as containing 25,360.96 acres, including 5,780.29 acres of the sandy river bed or arenal.

This survey was rejected by acting Secretary Cowen on July 31, 1871, and a new survey ordered. A new plat of survey was returned by the surveyor general in December, 1871, by which the grant was located in two tracts; tract number one containing 3,086.83 acres, and tract number two containing 5,793.98 acres, making a total of 8,880.81 acres. This survey was approved by your predecessor, Mr. Commissioner Drummond, and patent issued thereon March 14, 1872.

On March 18, 1875, More applied to purchase the lands formerly within the claimed limits of said rancho, which were not included in the final survey.

You decided that the plat of the Sespe Rancho, returned by the surveyor general in 1868, correctly defined the outboundaries of the grant, and that More, his heirs or assigns, were entitled to purchase all land not included in the final survey of the grant within said boundaries, except the tract lying within the arenal or sandy river bed.

The heirs of More have appealed from so much of your decision as rejects their right to purchase the sandy lands; and the settlers whose claims are affected by your decision have appealed from so much thereof as awards to the heirs the right to purchase any of the lands in question.

The statute under which this application is made is in the following words, viz: "That where persons in good faith and for a valuable consideration have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proofs of the facts as required in this section, under regulations to be provided by the Commissioner General Land Office, joint entries being admissible by coterminous proprietors to such an extent as will enable them to adjust their respective boundaries: Provided, That the provisions of this section shall not be applicable to the city and county of San Francisco: Provided, That the right to purchase herein given shall not extend to lands containing mines of gold, silver, copper, or cinnabar: Provided, That whenever it shall be made to appear by petition from the occupants of such land that injury to permanent improvements would result from running the lines of the public surveys through such permanent improvements, the Commissioner General Land Office may recognize existing lines of subdivision." (14 Stat., p. 220.)

It will be observed that the claimants entitled to purchase under this section are divided into two classes, viz:

First. Those who in good faith and for a valuable consideration have purchased lands from Mexican grantees or assigns, which grants have been subsequently rejected, and have used, improved, and continued in actual possession of the lands according to the lines of their original purchase.

Second. Where the lands purchased as above have been excluded from the final survey of any Mexican grant, and the claimant has used, improved, and continued in actual possession thereof, according to the lines of his original purchase: Provided, in both cases, that the lands are not mineral in character, and there was no valid adverse right or title thereto (except in the United States) at the date of the act, or in case of final rejection or determination of the limits of the grant after the passage of the act, at the date of such rejection or determination. In order to bring the case within the first class, the grant as claimed must have been rejected, not in part, but entirely. The word "rejected" is not a word of great elasticity nor of doubtful meaning, either in common parlance or in legal signification, and as used in this statute it means a legal determination adverse to the claim as presented by the tribunal before whom the claim shall be presented for final adjudication. And while it is immaterial for what reason the grant is rejected in order to give the claimant the right to purchase under said section, the quantity of the land purchased in good faith and for a valuable consideration, from the Mexican grantee, or his assigns, still that right does not exist under this provision unless the grant has been rejected. As this grant was not rejected, but on the contrary was confirmed and satisfied for the full amount granted by the Mex

ican Government, it is obvious that the claimants do not belong to the class first mentioned, and have no right to purchase any lands described in the application on that ground.

Have they a right to purchase said lands by reason of the provision granting the right to purchase "where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in actual possession of the same as according to the lines of their original purchase?"

The answer to this question must depend upon the fact whether any lands have been excluded from the final survey of said grant.

In order to determine that fact, an examination of the record, the history of this case, and the acts of the ancestor of the claimants in relation thereto is necessary. The question of the survey and location of this grant came before my predecessor, Hon. C. Delano, in 1871, on an appeal from the decision of Mr. Commissioner Drummond, rejecting the survey thereof, made under the direction of the surveyor general of California, in 1868, which survey included 25,360.96 acres of land.

The decision of the Commissioner rejecting said survey for the reason that it embraced more than the two square leagues confirmed to More, was affirmed by departmental decision, dated July 31, 1871, based upon the opinion of Assistant Attorney-General Smith, dated July 25, 1871. (Copp's Land Laws, p. 529.) It was also held that as the grant as confirmed was a grant of quantity within larger exterior boundaries, the claimant as the assignee of a Mexican grantee had the right to select and have located the quantity confirmed to him anywhere within those exterior boundaries, in compact form if practicable, and if impracticable to locate the same in a compact form in one tract, then in separate tracts, each separate location being made as near as possible in a compact form.

In accordance with that decision, the grant as confirmed was surveyed and located within the exterior boundaries of the calls of the grant, in two separate tracts, aggregating in quantity two square leagues of land. The survey of the grant as thus made and located was approved by your predecessor, and patent issued thereon to Thomas W. More, on March 18, 1872.

The right of a claimant to select the quantity of land confirmed to him anywhere within the exterior boundaries of a Mexican grant was distinctly recognized in the departmental decision of July 31, 1871, based upon the authorities cited, and inasmuch as no objection by Mr. More appears to have been raised to the latter survey, or the acceptance of the patent issued thereon, it must be presumed that he exercised this right of selection and was satisfied therewith.

From this brief review of the facts I think it clearly appears that no lands were excluded from the final survey of this rancho. The claimant had the right of selection and did select within the exterior boundaries of the calls of the grant the full quantity of land confirmed to him, and although it is true that an area of two square leagues will not cover an area of six square leagues, still it does not follow that, because the whole quantity is not embraced within the survey, or patent of the lesser quantity, that any lands not thus selected are excluded from the final survey.

In the selection of the quantity confirmed within larger exterior boundaries, it must always happen that some lands used and occupied by the claimants are not included within the selection and survey, and to hold that the mere fact of such use and occupation for any purpose or in any manner gives the claimant the right to purchase the land so used and occupied would extend the provisions of said act so as to permit the claimant to purchase any and all lands included within the exterior boundaries of the calls of the grant claimed by him. It may be true where grants were made not of quantity, but by specific boundaries, and the claimant has occupied lands through some mistake or misapprehension, not included within such specific boundaries, that he would have the right to purchase under said section the land so used and occupied after final survey of the grant had been made, and the tracts so occupied had been excluded from such survey upon discovery and identification of the landmarks named in the calls of the grant. This right, however, does not extend to grants of quantity within larger exterior boundaries. The reason which would warrant the construction in the one case does not exist in the other.

In the act of March 3, 1851, providing a system for the settlement and final adjudication of Spanish and Mexican grants in the State of California, a reservation was created of all the lands embraced within the claimed limits of every Mexican grant, valid or invalid, although the grant, in fact, and in almost every instance, was of a quantity much less within the tract so reserved. These large tracts have been used and occupied, pending the final adjustment and satisfaction of the grant under such reservation, by claimants, since that time, in order to protect their rights, as well as to secure the benefits arising from the use of large tracts of lands.

Upon the adjustment, however, of the grant of quantity within larger exterior boundaries, I am not aware that in any instance the claimants have sought or at least been allowed by the provision of the law under which this claim is presented to purchase any portion of the lands so reserved, not embraced within the grant as finally

adjusted, and I see no reason in this case for adopting a different rule from that which has been applied and accepted as the proper construction of said act in other cases.

It is true that this act is remedial in character, and, as such, should have such liberal construction as will afford the relief intended by Congress to be granted; but while this is true, it must not be so construed, liberally or otherwise, as to embrace cases not contemplated by its provisions.

In the case of McGarrahan vs. The Secretary (9th Wallace, p. 298), the Supreme Court clearly indicated the opinion that the act is not to be extended to any cases except those which are brought by the proofs clearly within its provisions. In other words, that it must be extended only to cure the mischief sought to be remedied and afford relief in those cases where, without it, the parties would be remediless.

In this case, the proofs show that Mr. More occupied and used all of the land embraced within the exterior boundaries described in the calls of the grant. His purchase, however, was the interest which the heirs of Carrillo had in the " Sespe Rancho," and nothing more. The deeds did not state that six square leagues of land were conveyed thereby, but, on the contrary, they mentioned and conveyed the interest which the heirs possessed in the "San Calletano" or "Sespe Rancho," situated in the "county of Santa Barbara, in the State of California," without further designation or description of quantity or limits. That interest, as it was finally determined by the court, consisted of the grant of two square leagues of land, which, as above stated, was selected by him, and for which he received a patent in his lifetime.

To permit More, if living, or his heirs or legal representatives, now to purchase from the government, under the provisions of said section, the balance of the land embraced within the exterior boundaries of said grant, would, in my opinion, be a very dangerous precedent, and not warranted thereby.

Owing to the peculiar circumstances connected with this case, if they could be considered as bearing upon the question at issue, I should be disposed to allow the application of the heirs of More to purchase said tracts, if such application could be allowed in any case, to purchase lands within the exterior boundaries not selected, in satisfaction of the quantity granted, but in my opinion such an application cannot be allowed in any case under the provisions of the 7th section of the act of July 23, 1866.

Your decision, therefore, allowing the heirs of More to purchase any of the tracts embraced within the exterior boundaries of the "Sespe Rancho" is hereby reversed and the papers transmitted with your letter of December 5, 1877, are herewith returned.

Very respectfully,

The COMMISSIONER GENERAL LAND OFFICE.

Homesteads.

C. SCHURZ, Secretary.

Congress by act of the 27th May, 1878, enacted that parties who had resided upon and cultivated public lands under the provisions of the pre-emption laws, and had commuted their pre-emption filings to homestead entries, or who might thereafter do so, should be allowed the benefit of the time of such residence and cultivation in making final proof on their homestead entries, as a part of the period of residence and cultivation required by the homestead laws as a prerequisite to acquiring title. This law operates as well with regard to commutations made prior to its passage as to those made or to be made thereafter, and embodies the provisions of the previous act on the subject of March 3, 1877, which it supersedes. With the exception of this act of May 27, 1878, and the acts of June 1, 1878, and June 19, 1878, which extended the provisions of the acts for the relief of settlers whose crops were destroyed or seriously injured by grasshoppers, so as to benefit parties who suffered therefrom in 1876, there has been no additional legislation regarding homesteads on the public lands since the date of the last annual report of this office. The entries under the homestead laws during the fiscal year ending on the 30th June, 1878, reach the amount of 4,418,344.92 acres, which shows an increase of 2,240,336.75 acres over the previous year, or nearly double the quantity, and which is greater than the amount entered in any fiscal year since that ending June 30, 1872, when it was 4,671,332.14 acres.

In regard to soldiers' additional homestead claims, arising under section 2306 of the Revised Statutes of the United States, a statement was

made on page 50 of the last annual report showing the method adopted for a preliminary examination thereof in this office, before entries should be allowed. During the fiscal year ending on the 30th June, 1878, there were filed for such an examination 2,744 cases. Of these, 2,131 claims were approved and certified, and 159 are suspended for further examination, 454 having been rejected.

Reference is made to the following decisions affecting homestead rights made since the date of the last annual report of this office:

1. There is nothing in the law of March 3, 1877, authorizing the preemptor to change his filing to a homestead entry with credit for the time he has resided on the land claimed which requires his personal attendance at the local office. He should not be required to show his right to do so by evidence until the time for making final proof on his homestead entry. (Secretary's letter of March 13, 1878, case of John T. Farley; circular of March 21, 1878.)

2. A party having made an additional entry under section 2306 of the Revised Statutes subsequent to the 22d June, 1874, cannot take a second additional entry, although the land embraced in his two existing entries fall below the maximum quantity of 160 acres. (Secretary's letter of February 6, 1876, case of Joseph Alsip.)

3. County courts in Florida are courts of record, and the judges and clerks of such courts are qualified to take final proof in homestead cases under the act of March 3, 1877.-(Commissioner's letter to register and receiver, Gainesville, Fla., of January 10, 1878.)

4. Lands which are marked upon the books of the local office as covered by claims which are finally determined to be absolutely void from their inception are nevertheless withdrawn from market and cannot be again subject to private entry until duly restored to market, although such claims may be no bar to a pre-emption claim.-(Secretary's letter of November 30, 1877, case of S. N. Putnam.)

5. The father of a deceased soldier is not entitled to the benefits of section 2305 of the Revised Statutes, but only the widow or minor orphan children, if any, under section 2307.-(Commissioner's letter to the register and receiver at Concordia, Kans., of December 4, 1877, case of Samuel P. Gamble.)

6. A party who neglects to examine the character of land entered by him under the homestead laws must suffer the consequences. He cannot be allowed to make another entry if dissatisfied with the land entered.-(Commissioner's letter to register and receiver at Niobrara, Nebr., of November 28, 1877, case of John O'Dempsey Nightingale.)

7. The relinquishment of a homestead entry must be the free and voluntary act of the claimant. The wife of a homestead claimant under duress in the State penitentiary may make final proof in her husband's name. The question of her rights to the property will then be one for the courts to determine.-(Commissioner's letter to the register and receiver at Bloomington, Nebr., of November 22, 1877, case of Hanson vs. Geiger. Affirmed by Secretary July 18, 1878.)

8. Where a homestead claimant has failed to comply with the law in the matter of residence, he may, under some circumstances, be allowed additional time to comply therewith.-(Commissioner's letter to the reg. ister and receiver at Little Rock, Ark., of October 22, 1877, case of Adam Licklider.)

9. Judges of probate in Alabama being ex officio judges of the county courts, which are courts of record, the final proof in homestead cases in that State may be taken before them under the act of 3d March, 1877.— (Commissioner's letter to the register and receiver at Huntsville, Ala., of September 14, 1877.)