University oT California Berkeley 
 
 Purchased as the gift of 
 TOMAS S. VANASEK 
 
THE SUTTER CLAIM, 7 
 
 ' 7 
 
 THE 
 
 >l, , / && 
 
 EVIDENCE TAKEN IN CASE 192 
 
 i 
 
 BETOS-E THE 
 
 of SS. S. 
 
 TOG5TIIEE. WITH 
 
 THE BKIEF 
 
 or THE 
 
 UNITED STATES LAND AGENT 
 
 SACRAMENTO: 
 
 PRINTED AT THE STATfi JOURNAL OFFICE, COttNEB. 07 K AND SECOND STRSBTS. 
 
 1854, 
 
CASE NO. 192. 
 
 BEFORE THE U. S. BOARD OF LAND COMMISSIONERS. 
 
 JOHN A. SUTTER, vs. THE UNITED STATES 
 
 The petition as amended represents that the claimant in 1839, by permission of 
 Alvarado, Governor of California, settled upon and occupied a tract of land lying 
 upon the American, Sacramento and Feather Rivers, and commenced occupation 
 and cultivation. 
 
 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 land 
 which he solicited, these lands being on the North, a line running East and West 
 and passing by or near the Three Buttes, and designated on the map as Latitude 
 39 deg. 32 min. 45 sec. on the South, and 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 38 deg. 49 min. 32 sec. on the East banks 
 of Feather River. 
 
 That on the 15th June, 1841, the claimant presented his petition to the Governor, 
 asking for eleven leagues of land in exact conformity to the map, not including 
 land periodically overflowed. 
 
 That this exception was made for the reason that the greater portion of land in 
 this part of the country is valueless in consequence of its being subject to inunda- 
 tion ; the only land of value being the high lands in the immediate vicinity of said 
 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 between the said rivers and the said dotted line, and that 
 excluded being the portion lying outside and which is marked overflowed and bar- 
 ren lands, (Tulares y tierras esteriles,) that the Southern line of said tract of land 
 being the dotted line marked on the map South of the American River and North 
 of called Latitude 38 deg. 41 min. 32 sec., had been actually surveyed and marked 
 out and its position well known. 
 
 . That PRIOR to the time of presenting his petition for a grant, he had opened a 
 a farm and made improvements a place called Hock Farm, on the Western bank 
 of Feather River, but bad located his principal establishment on that portion of the 
 tract which lies South of American River, at which point he had commenced the 
 construction of extensive and substantial buildings, and had engaged largely in tb* 
 & land, and it was thi* latter setitawmt wJhieJi b* tad nailed trf 
 
which was known in the country by the name of New Helvetia, and from which 
 the whole tract tcok it? rame. 
 
 Then follows the averments describing the grant of 1841, which will be stated in 
 the proofs. 
 
 The petition then avers that after said grant was made he continued in the oc- 
 cupation of said land, and at great expense, erected south of the American river, 
 at his establishment of New -Helvetia, an extensive fort, and maintained there a 
 garrison sufficient for the protection of the settlements and the frontiers ; that he 
 complied with all the conditions rf the grant, and that the results of his settlement 
 upon the frontier, in the civilization of the indian tribes, in the protection of 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 ex- 
 pectations entertained by the Government when it sanctioned and promoted his 
 enterprise. 
 
 The petition further avers, that at the time of making said map which accompa- 
 nies his petition jpr 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 imperfection in the instruments used in making the observation, 
 and that the latitude 38 deg. 49 miri. 32 sec., instead of crossing the Sacramento 
 river at that point, as it was supposed to do, would intersect it north of the Ameri- 
 can river, thereby excluding all that portion of said land lying south of the Ameri- 
 can river. Claimant represents that this portion of the land south of the American 
 river was the part of the tract on which his principal establishment was actually 
 located; that it was intended to be and was included in the land petitioned for ; that 
 it was intended to be included in the grant ; that it was always understood to be so 
 iacluded by the reti ioner, by the government, and by the people of the country ; that 
 it lies north of the line actually located as the southern line of the 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. 
 
 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 square leagues, lying upon the banks of 
 the Sacramento, American and Feather rivers, between said rivers and the dotted 
 lines marked upon said map as the boundary of the overflowed and barren lands, 
 and between the line marked 39 deg. 32 inin. 45 sec. and the Three Buttes on the 
 north, and the line marked 38 deg. 49 min. 32 sec., as designated 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, Inge and Martin, attorneys for claimant. 
 
 Filed in office March 1, 1853. 
 
 The original petition in this case was filed by Chetwood, Edwards & Rose as 
 attorneys on the 8th day of March, 1852, and contained, in addition to the usual 
 matter connected with the eleven league grant, proper averments describing a grant 
 for twenty-two leagues of overplus, an abstract of which grant will be hereinafter 
 contained. 
 
 The original petition claims thirty -three leagues of land. 
 
 The original grants in this case are not produced. 
 
 The Surveyor General reports, in answer to an inquiry from the Secretary of 
 the Commission, that there is evidence in the archives under his control showing 
 the issuance of a grant of eleven leagues, named New Helvetia, but that theje i 
 evidence in his possession of any grant of the overplus. 
 
 The Jtopediiiite from the ofiuw of the Surveyor General shows 
 
First : A petition, signed by John A. Sutter, directed to the Governor of the 
 Department, dated Monterey, June 15, 1841, representing that he is a native of 
 the Swiss Republic, and naturalized in the Mexican nation ; that since his arrival 
 in the country, wishing to cultivate a portion of the vacant lands, he begged the 
 approval of the Governor in order to settle himself on the land he now occupies, 
 associated with some laboring families who were willing to follow him. That his 
 settlement promises advantages to the Department, and has awakened ideas of thrift 
 in the inhabitants of the country ; at the same time this settlement will prove to be 
 a strong barrier against the incursions of indians, and be a school of civilization 
 either to the natives or to those under the care of the missions; and your petitioner 
 says these tribes are becoming useful on account of his exertions For all these 
 reasons the necessity of enlarging his establishment, and settling twelve families, he 
 applies to the kindness of the Governor that he may be pleased grant him eleven 
 leagues of land in his establishment named New Helvetia, situated on the north, 
 according to the land represented in the sketch which he has the honor to 
 present. 
 
 The land which is periodically overflowed in winter is not comprised in the afore- 
 said eleven leagues. 
 
 The petitioner requests your Excellency to grant him his petition, and to inter- 
 pose your influence before the Supreme Government of the nation, that its superior 
 approbation may be obtained, and your petitioner will receive favor and the country 
 improve in agriculture. 
 
 Thereupon, on the 18th day of June, 1841, Juan B. Alvarado, then Governor 
 of California, caused the usual note to be taken of a grant issued to the claimant of 
 that date. 
 
 The note, after reciting the material parts of the petition, and mentioning that 
 the said Sutter had solicited according to the law of the 18th of August, 1824, and 
 ordinance of the 21st of November, 1828, on behalf of himself and that of twelve 
 families, eleven leagues of land, in order to colonize them, on the borders of the 
 river Sacramento, for which end he has proved his assiduity and all other qualities 
 required in those cases, having exhibited his patriotic zeal in favor of our institu- 
 tions, having reduced to subjugation several tribes of savage indians, born on these 
 frontiers; and this Government being informed that said land does not belong to the 
 property of any private individual, town or corporation, says that in conformity 
 with the powers conferred on the Governor, in the name of the Mexican nation he 
 has granted to the said Senor Don Augustus Sutter, for him and his settlers, the 
 said land, called La Neuva Helvetia, subject to the approval of the Superior Gov- 
 ernment, and of the Excellent Departmental Assembly, under the following con- 
 dition! : 
 
 First : He may fence it, without injury to roads and navigation. 
 
 Second : He shall maintain the native indians in the enjoyment of their posses- 
 sions, without troubling them; and he may only reduce them to civilization through 
 prudent measures and a friendly intercourse ; he shall not cause them hostilities 
 without previously obtaining authority from Government. 
 
 Third: The land, of which donation is made to him, is of the extent of eleven 
 square leagues, (sitios de ganado mayor,) as exhibited in the sketch annexed to the 
 proceedings, without including the lands overflowed by the swelling and currents 
 of the rivers. It is bounded on the north by the Three Summits, (los tres picos,) 
 in 39 deg. 41 min. 45 sec. north latitude, on the east by the border of Feather 
 river, (Rio de los Plumas,) on the south by parallel 38 deg. 49 niin. 32 sec. of 
 north latitude, and on the west by the river Sacramento. 
 
 Fourth : When this property shall be confirmed to him he shall petition the 
 proper Judge to give him the possession of the land, in order that it may be 
 
measured according to ordinance, the surplus thereof remaining for the benefit of 
 the nation. 
 
 Therefore an order is made that the patent being held as firm and valid, the same 
 be entered in the proper book, and that these proceedings be transmitted to the 
 Excellent Departmental Assembly. 
 
 The claimant also filed in office, March 8, 1852, on common paper document in 
 Spanish, a translation of which exhibits the following matter : 
 
 " Manuel Micheltorrena, acting Governor of California, on the 5th day of Feb- 
 ruary, 1845. after reciting that Juan Augustus S utter and his son John A. Sutter, 
 have solicited for 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 inquiry having been (satisfied) in virtue of the author- 
 ity conferred on him for the good conduct and services which the senior Sutttr has 
 rendered and is rendering at the present time, has conceded to them the mentioned 
 lands, declaring in them the ownership thereof by these presents, subject to the 
 Assembla Departmental under the following conditions : 
 
 First : They Say enclose it without prejudice, &c. 
 
 Second : They can request the proper Judge (jury) that he give them pos- 
 session by virtue of this decree, so that the boundaries may be defined, at the limits 
 of which there may be placed land marks. 
 
 Third : The land of which mention is made consists of twenty-two square 
 leagues, described upon the map which accompanies the grant. 
 
 Fourth : The Judge who gives possession shall have the land surveyed according 
 to law, leaving the surplus that may result at the disposal of the nation, for its 
 convenient uses. 
 
 Fifth : Therefore, command is made that these presents investing the title in 
 them and holding the same for firm and valid, shall be handed in for record in the 
 proper book, and shall be delivered to the parties in interest for safe keeping and 
 other purposes." (Signed at Santa Barbara, Juan Castancda acting as Secretary.) 
 
 The map exhibits a view of the scope of country from about ten miles below the 
 junction of the Sacramento and American rivers, north to the three Buttes, and 
 includes the land on both sides of the American river for ten or twelve miles, and 
 on each side of the Sacramento and Feather rivers to the foot hills of the Sierra 
 Nevada. Tt also exhibits traced lines on the east side of the Sacramento below the 
 mouth of the American, extending up the American and including the city of Sac- 
 ramento and the American bottom for a mile or more in width. The traced lines 
 also includes the land on the north side of the American river to about the same 
 extent as on the south, extending up the east side of the Sacramento and Feather 
 rivers some distance further north than the Buttes. The traced line is also found 
 on the east side of the Sacramento above the mouth of Feather river and the west 
 side of Feather river. 
 
 The claimant has also filed in the case an expediente of the land granted William 
 A. Leidesdorff, showing a petition from Leidesdorff, dated Monterey, August 29, 
 1844, asking for land adjoining the land of Mr. Sutter Micheltorrena, on the 29th 
 of August, 1844, refers the petition of Leidesdorff to his Secretary. Manuel Jimeno 
 acting as Secretary, refers the matter to Mr. Sutter, to report on the same day. 
 
 October 1st, 1844, the Secretary reports to the Governor that the land asked by 
 Leidesdorff is so well marked out on the map, and so near the place of Mr. Sutter, 
 that no objection exists against granting the land to the applicant. 
 
 John A. Sutter, August 4th, 1844, reports the land asked for by Leidesdorff to 
 be vacant. 
 
 The Governor thereupon makes a decree declaring Leidesdorff owner of the 
 land on the American river, bounded by the land granted to the colony of Mr. 
 Sutter, giving a further description by LeidesdorfPs claim. Then follows the grant to 
 
Leidesdorff describing the land granted, as bounded in part by the land granted to 
 the colony of Mr. Sutter. 
 
 The deposition of John J. Vioget, taken June 4th, 1852, shows that he was ac- 
 quainted with John A. Sutter and the land claimed in this case. The southern 
 boundary of this tract of land commences on the Sacramento river where Sutterville 
 now stands, and runs thence to the southern end or point of a pond, (or laguna,) 
 then runs along the east side of said pond to a row of oaks on the same side of the 
 pond, it runs thence to within about four hundred yards in the same course of 
 Sinclair's house ; thence turning ea^t along the general course of the American 
 Fork of the Sacramento river for about three miles to the river, and down the Amer- 
 ican fork to the junction of the Sacramento river, and along Sacramento river to 
 the point of beginning. The map filed in this case is a correct representation, and 
 agrees with the description I have above given. 
 
 The general outline of this map agrees with one 1 made for Captain Sutter in 
 January, 1841. There are some objects omitted and some inserted, such as houses 
 and farms, which were not on the map made by me. In relation to the southern 
 line, the observations made of the latidude is not correct, in consequence of my 
 inability to procure correct instruments, which I mentioned at the time of taking 
 the observation to Captain Sutter. The map was made by me prior to the 
 grant. 
 
 A second deposition of Vioget, taken on the 17th day of October, 1853, says : 
 I placed a stake on the aide of the lagoon mentioned in my former deposition ; 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 at which place I took the 
 altitude of the sun for latitude ; I then surveyed the land on the east side of the 
 lagoon, then on the east side of the clump of oak trees, from thence towards St. 
 Clair's house, which was about one hundred yards from St. Glair's house, then 1 
 went eastward along the river, say about one mile from 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 Captain Sutter wanted there From 
 the junction of the American Fork and the Sacramento river I run up the said Sac- 
 ramento river, measuring each distance of bends, to the junction of Feather river ; 
 there I took another observation of the sun for latitude ; I surveyed from that junc- 
 tion to the ford, and then I begun 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 Sac- 
 ramento river, on the east side of said Sacramento river, and on the north side of 
 the American Fork, to connect the two leagues square with the nine leagues square 
 on the Feather river. The dotted lines on the Sacramento represent only the 
 overflowed land as fer as I could see ; but that part has never been surveyed by me, 
 and was put on the chart by guess. The Sacramento river bends to the north- 
 west. At the time I made the chart, the portion of land between the dotted lines 
 and the Sacramento river, on the east bank, above the mouth of Feather river, as 
 represented on the chart made by me at the time, was not intended by Captain 
 Sutter to be within the survey then made. 
 
 The above testimony is objected to by the Law Agent, on the ground that it is 
 proving a survey outside of the limits of the grant. 
 
 The deposition of John S. Fowler, taken February 17, 1853 : 
 
 Witness is acquainted with Captain Sutter, and with the country lying on Sacra- 
 mento and Feather rivers. On the bank of the Sacramento river, from its junction 
 with . the American to nearly the mouth of Feather river, the land is high, for- 
 merly well timbered. The average width of the high land I should judge to be 
 from one-half to three-fourths of a mile ; the land then grows lower and become* 
 
8 
 
 tule or swamp land. The swamp lands I should judge would average two and a 
 half miles in width, the whole tract being sometimes wider and sometimes nar- 
 rower ; then there is a gradual rise of the land for a quarter or half of a mile, when 
 it hecomes a high plain, not subject to overflow, which plain continues to the foot- 
 hills of the mountains, the average distance being from fifteen to twenty miles. The - 
 The highlands on the bank of the river is not subject to annual overflow. The tule 
 land is annually overflowed by means of sloughs through the timbered land, through 
 which the water runs from the river during the wet season. On both sides of 
 Feather river there are strips of high timbered land, and back of them are tule 
 lauds. On the east side of Sacramento river, above Feather river, there is also a 
 strip of high land, and back of it tule land. In general the high lands are not sub- 
 ject to overflow, but the tule lands are. 
 
 In the years 1848 and 1849 and as late as 1850, Capt. Sutter occupied the 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 or two and a half miles above the junction. 
 
 In 1850, in tlttS- summer, I had in my possession, the original grant from Gover- 
 ner Alvarado to John A. Sutter, of eleven leagues of land, and it continued in my 
 possession upwards of a year and till the Fall of 1851. It was then destroyed by 
 fire. It was in my office in Sacramento when the office was burned, with every- 
 thing in it ; nothing was saved that was in the office belonging to me or any one 
 else. While the grant was in my possession I had frequent occasion to refer to it, 
 and I became familiar with its contents. I should think the paper marked "Situlo" 
 being part of exhibit "A" filed in this case, was a copy of said grant that was in 
 my possession and burned. 
 
 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. I think this map is a correct copy of the one destroyed, except that I think 
 there are more dottings of trees between the American river and the right hand 
 corner of the map. I know the dotied lines which follow nearly the course of the 
 rivers on this map to be in exact conformity to those on that. 
 
 The original grant and map were put into my hands by Capt. Sutter, as his 
 agent. I had charge of the papers and documents relating to his affairs, I recol- 
 lect the limits expressed in the grant, It is bounded on the south by parallel of 
 latitude 39 deg. and some minutes and seconds, commencing on the Sacramento 
 river, and running east on said parallel of latitude to the Feather river ; thence 
 down the Feather river to its junction with the Sacramento ; thence up the Sacra- 
 mento to the place of beginning. 
 
 A second deposition of John S. Fowler, taken October 19th, 1853, contains the 
 following : I should think the southern boundary of the establishment of New Helvetia, 
 as conveyed by the Mexican Government, is 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 Sac- 
 ramento river as I have stated. The eastern boundary, south of the American river, I 
 should think, was from 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 and Sac- 
 ramento rivers to the northern boundary, I should think the average distance about 
 one and a half leagues. 
 
 I had both the original grants, one dated in 1841, and the other dated February 
 5th, 1845, in my possession. They were destroyed in Sacramento city by fire in 
 the month of October, 1851. 
 
 The papers marked A and C on file in this case, are correct copies of said origi- 
 nal grants. 
 
9 
 
 Oapt. Sutler has occupied the sobrante and made great improvements thereon. 
 Ho ^k Farm is about twenty-five miles above the mouth of the Feather river by the 
 me mders of said river. 
 
 Nicholas Alzier settled under Sutter, about ten miles above the mo ith of Feather 
 rivar. 
 
 Then follows a topograph : cal description of (he country, similar to what he testi- 
 fiei to in a former deposition. 
 
 Cordua settled at the mouth of the Yuba under Slitter, and made large improve- 
 ments. I arrived at Slitter's Fort on the 16th of September, 1847. I know by 
 virtue of the grants made by Alvarado and Micheltoneno, both Mch I have 
 examined that the lands I have described are within the estabkJ^uisn' of New 
 Helvetia. I was acquainted with the Spanish language sufficient to enable me to 
 understand the contents of said grants. I am enabled to state positively that exhi- 
 bit A and C are correct copies, because I examined them last Friday. I know it 
 by a map purporting to have been made by Vioget which contained all the land, 
 and I hav<- never heard but one sentiment expressed, and that was that the territory 
 claimed by Sutter belonged to him. I have no interest iu the result of tli3 claim 
 in this case. 
 
 The deposition of John Bidwell, taken April 8, 1852, shows he was acquainted 
 with Captain Sutter, that there was a grant made to him of eleven leagues in 1841, 
 situated on the east bank of the Sacramento river, between the parallels of latitude 
 39 deg. 33 ruin. 45 sec. and another parallel running some three or four miles s-jiith 
 of the present site of Sacramento city, including both banks of Feather river. One 
 of the conditions of the grant was that he was to settle twelve families on it ; I know 
 this condition was complied with ; I frequently saw more than that number upon the 
 land. When I came to this country, in 1841, Captain Sutter was settled on it at 
 New Helvetia, where his fort was built. The fort was begun in 1841 and finished 
 in 1843. The families were part of them settled about the fort, part on the Amer- 
 ican, and a part on Feather river. I know Captain Sutter, in 1844, made applica- 
 tion to G-overnbr Micheltonero for a grant of the surplus, and I suppose it was 
 granted to him. The ground on which he applied was that he had been an officer 
 in charge of the frontier for several years, had kept the frontier quiet and the Gov- 
 ernment advised of its condition by sending couriers to Monterey and Los Angeles, 
 at his own expense, and that he had fulfilled the conditions of his former grant. I 
 was in Captain Sutter's employ from 1841 to 1846, and had no knowledge that he 
 ever received any compensation for his services unless by said grant of land The 
 sobrante was occupied by Captain Sutter. He had cattle and horses on all that 
 tract between the Sacramento and Feather rivers at one time over 4,000 cattle 
 and 1,000 horses. He had persons settled east of Feather on Yuba river. I think 
 this was on the sobrante. He had a grist mill on the American Fork, about six 
 miles from the Sacramento, within the limits of the original grant. I do not know 
 the terms on which the families settled on the land ; some of them had lands granted 
 by Captain Sutter. I accompanied Captain Sutter to Monterey when he applied 
 for the sobrante ; I remained there until after he left. 
 
 A second depositton of Bidwell taken May 9th, 1854, discloses that he has lived 
 in California since 1841, the first fourteen months at Bodega and after that at Sacra- 
 mento most of the time till 1848. 
 
 When I arrived at New Helvetia in 1841, John Sinclair was settled on the south 
 side of the American river with his family. Another man named Makaina 
 near the Fort : James Bruheim at the Sheep Ranch. At the Lagoon, Le in hard 
 was settled, and cultivating a large tract between the Fort and the mouth of the 
 American river. Allen Montgomery lived on the American Fork. Henry Bee 
 and wife, Fling, a blacksmith, arid wife, John Chamberlin and wife, Win. Day lor 
 and wife, Block, a hatter, three Kanakas and their wives all these persons were 
 2 
 
10 
 
 settled in and about gutter's establishment, between the years 1841 aud 1845. 
 I was living at the Hock Farm in 1842 and '43. There were a good many men 
 living at the Fort, but they were more transient. It was a general rendezvous and 
 headquarters for travelers, new comers and trappers. In addition to those 1 have 
 mentioned, there were as many as twenty or twenty-five. I think there was not less 
 than thirty or forty men at the establishment in 1844, the population not less than 
 fify or sixty. In 1846, there were no less population ; but during the summer of 
 1815, a large party left the Fort on a trapping expedition, but returned in the Fall. 
 
 Nicholas Algier, Theodore Cordua, and N. C. Nye, were settled on Feather river 
 in 1843, the last from 1845 to 1846. Jack Smith, Gr Patterson, in 1845. Theo- 
 dore Secard, E. Dupont, J. Vero, Pablo Gutierrez, same year, also a man by the 
 name of Bartlett. 
 
 Capt. Sutter employed many of the Indians to work for him ; he treated them 
 kindly. 
 
 The effect of his establishment was to subjugate the Indians and render them 
 peaceable and friendly when they had been hostile, and his Fort was the only pro- 
 tection the Sf^piards had on the northern frontier. Capt. S. had some twenty or 
 thirty Indians civilized about him. 
 
 The length of the tract of land described on the map between the limits of the 
 rancho I have named, is not far from forty miles Capt. Sutter did not claim all 
 the land embraced in the map. It used to be called twenty miles from the Fort to 
 Feather river by the road, and some thirty miles from there to the Buttes. I think 
 ... the average width of the country embraced in the map may be fifteen miles. The 
 average width of the land embraced within the edge of the map is about forty 
 miles. 
 
 I always thought Capt. Sutter claimed the land within a line three leagues east of 
 Feather river. I do not know that he claimed all up to that distance, but I think 
 he never claimed beyond such line. The only landmark I have seen, noting such 
 boundary, is a marked tree on the south side of the American Fork, about three 
 leagues east of the Sacramento. 
 
 The only landmark I knew of, north of the American Fork, was the mouth of a 
 creek which empties into Bear river. Between that and the American Fork is a 
 desert waste, on which I knew no landmarks. If a direct line were drawn from the 
 mouth of the creek I have named, to the marked tree I have mentioned, on the 
 American Fork, it would embrace about two hundred square miles, between that 
 and the Sacramento river ; it would embrace nearly all the Rancho del Passo. 
 
 Capt. Sutter had an establishment at Bodega on the Pacific coast in 1841 and 
 1842. I don't know by what title. 
 
 Capt. Sutter has three sons, The oldest came to California in 1848 and was 
 twenty-one years old when he arrived. The ages of the others I do not know, but 
 they were younger. 
 
 1 think 1 have seen Sutter's original grant. I do not recollect what was described 
 therein as the eastern boundary, but I think the words "margins of Feather and 
 Sacramento rivers," were used. St. Glair's house as it existed in 1841, is about 
 four or five miles from the mouth of the American. The witness here describes 
 minutely the character of the settlements made, nearly all of them were about the 
 Fort and on the east bank of the Feather river. They were, more or less, perma- 
 nently settled : some of them under Sutter, and others the witness did not know 
 the character of their eettlemente. 
 
 Witness also again describes the topography of the country, beside a small strip 
 of land bordering on the river, the land is subject to overflow in the winter. 
 
 The deposition cf B. B. Buchannan, taken October 19th, 1853, states he knows 
 the topography of the county, and describes it as subject to overflow except some 
 part along the borders of the rivers. 
 
 Jose Maria CoYWubias deposes that when Micheltorrena was at Los Angeles, the 
 
II 
 
 archives were at Monterey, and were brought to Los Angeles about fire months 
 after the departure of Micheltorrena from California by order of Governor Pio Pico. 
 I do not know that any of the archives were destroyed at Los Angeles in 1845. 
 The time when they were destroyed was in 1846, when Commodore Stockton ar- 
 rived. When Governor Pico was preparing to quit the country he had some papers 
 of the archives packed up and deposited in a house, the others remained in the 
 office of the Secretary, which was occupied by soldiers of the United States, as well 
 as by those of Mexico. I know that many of the papers left were lost or destroyed; 
 the soldiers were in the habit of lighting cigars with them. 
 
 P. B. Reading, on the 6th of October 1853, deposed, have known Captain Sutter 
 since 1843. He resided at Sutter's Fort : I know Captain Sutter occupied Hock 
 Farm in 1843, but do not know he resided on it. There was on it at that time a good 
 adobe house for the vaqueras, corrals, and all improvements necessary for conducting' 
 a rancho. The farm was also well stocked with cattle and horses. Hock Farm at 
 that time was generally reported to be part of Captain Sutter's grant, and has been 
 occupied by him or his servants ever since. 
 
 In 1844-5 Captain Sutter was acting as Alcalde and held a commission as Cap- 
 tain in the service of Mexico, under Governor Micheltorrena. He organized a 
 company of foreigners, mostly Americans, in 1844-5, and with them and Indians 
 to about one hundred, he marched to join Governor Micheltorrena in actual service. 
 This was done under the orders of the Governor. 
 
 There was at that time attempt at a revolution, and the Californians were in 
 arms to drive him from the country. In the expedition Captain Sutter was reported 
 to have been taken prisoner at the battle of Cahuenga. I was in command at Fort 
 Sutter at the time, and received official notice of that fact. 
 
 In a second deposition the same witness, on the 12th day of the same month, 
 states : I recollect of riding, with Captain Sutter, about nine years since, down the 
 bank of the Sacramento river about six miles below where Sacramento city now 
 stands, to a point which he designated as being the commencement of his boundary 
 line. A large oak tree was blazed which stood near the junction of a slough with 
 the river just above a place called the Russian Embarcadero. 
 
 The greater portion of the land on Sacramento and Feather rivers, embraced 
 within the line claimed by Captain Sutter, is high and not subject to overflow. The 
 laud bordering on the rivers is timbered, alluvian, and subject to overflow. Some 
 of the persons in the employ of Sutter in the first years of his settlement have left 
 him ; indeed they have all left. 
 
 Captain Sutter represented to me in the spring of 1844, that the Mexican Gov- 
 ernment officers were desirous of purchasing his establishment for a large sum of 
 money. He advised with me as to the propriety of selling his property, and con- 
 cluded not to do it. There were two Mexican officers at the Fort at the time. 
 
 I considered that the Californians were anxious to get rid of the Americans be- 
 cause they were gaining ground. I know of Captain Sutter's selling or leasing land 
 to several persons before the year 1844. 
 
 The deposition of Samuel J. Hensley, taken February 2d, 1853. I am ac- 
 quainted with Captain Sutter, and the place called New Helvetia. In 1843 I first 
 knew the settlement at the fort ; it was a large adobe building, surrounded with 
 an adobe wall of about fifteen feet in height, and three feet in thickness. The en- 
 closure by this wall formed an area of about one hundred and eighty yards in 
 length, and seventy in breadth. There were two bastions at the angles of the 
 walls, and four guns mounted on each. _ There were furnished within the fort 
 dwelling houses, and houses for manufacturing various articles. There was a grist 
 mill, carpenters' shop, blacksmiths' shop, gunsmiths' shop, shoe makers' shop, and a 
 distillery. 
 
 remainder of the buildings composing the fort were built in the winter of 
 
 
12 
 
 1843 and spring of 1844. There was an adobe building about three hundred yards 
 from the fort, and about a m^e from the fort on the American river was a tannery, 
 and about three miles from the fort, on the A-ncrie n river, was Ihe Saint Clair 
 House. The claimant had about five or six hurdred acres enclosed by a ditch, in 
 which he cultivated chiefly barley, wheat and peas. He had vines and fruit trees 
 growing. He had about eight thousand head of cattle, and three thousand horses 
 and four hundred hogs. 
 
 Witness speaks of the settlement at Hock Farm, and further improvement at the 
 fort made after that time, and says there must have been fifteen or twenty families 
 on the land prior to 1846. 
 
 Witness also states his opinion as the effect of settlers establishments in civilizing 
 the Ind'ans and protecting the frontier. He also states what he understood from 
 Captain Vioget to be the boundaries of the claim, but as Vioget's evidence is given 
 in full we omit it here. 
 
 The deposition of Antonio Sunol. I am acquainted with John A. Sutter, and 
 have known him ever since he landed in this country, I think it was about the year 
 1837, but canrrofc be certain. As soon as he landed he embarked his effects in 
 launches 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. 
 I was at the place almost a year and a half after Captain Sutter landed. There 
 were from twenty, to thirty persons living there beside Indians in the employ- 
 ment of Captain Sutter. 
 
 1 was there again in 1840, I had sold Captain Sutter cattle and went there for 
 my ray. His establishment was considerably enlarged ; I did not see all his culti- 
 vated lands ; the cultivated land I did see was about three miles in circumference. 
 1 know there were more than twelve families established there in 1843, perma- 
 nently. 
 
 I was there in 1819 and 1820. There was no settlement there then. 1 went 
 with about forty or fifty armed Indians of 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 were very troublesome, and the settlement 
 of Gutter had considerable effect in protecting the inhabitants. Captain Sutter 
 sometimes made expeditions with those under his control against the wild indians. 
 At that time Sonoma was the nearest establishment to Sutter's, some fifteen or 
 twenty leagues distant. 
 
 On my first visit to Captain Sutter, he told me he had about thirty leagues in 
 extent of land, for which he had received a title from the Government of Califor- 
 nia. I do not recolk ct whether he said he held the land as his own property or 
 as empies. ario. Captain Sutter at that time had not bought the Russian property 
 at Bcdega. On reflection, I think it was in 1841 I made my second visit to Cap- 
 tain Sutter's establishment. 
 
 Franklin Bates deposes he is interested in the confirmation of the claim, having 
 bought of Captain Sutter some two miles square of land, lying on the east bank of 
 Feather river. I have known Captain Sutter, and resided at the fort in 1847 and 
 1848. W fi.s 3 then described improvements at that time and the topography of 
 the country . 
 
 Gilbert A. Grant, in a deposition taken February 17, 1853, describes the 
 topography of the country. 
 
 The deposition of Samuel Brannan shows he was acquainted with Captain Sutter 
 as eaily as the month of April, 1847. His deposition describes the improvements 
 at that time and the topography of the country. 
 
 J. D. Marks deposes : I do not of my own knowledge know anything about the 
 approval of the official ictg of Miohltorrona by the Supreme Government of Mex- 
 
13 
 
 ico. 1 have had various conversations with Micheltorrena, in August and Septem- 
 ber, 1852, in which he stated that all his official acts as Governor had been ap- 
 proved by the Supreme Government. I also had conversations with Senor Ra- 
 mirez, former Minister of Foreign Affairs in the Mexican Government, in relation 
 to land titles in California. He stated that, under the basis of Tucubaya, Michel- 
 torrena had full, ample and extraordinary powers to grant land in California. I do 
 not know what the custom of the Governor was in relation to granting land in 
 remuneration for public services. 
 
 Francisco Arce deposes : I was at one time first clerk in the office of Secretary 
 of the State of California. During the time I so acted as clerk, at the request of 
 Captain Sutter, I drew up for him a petition for the sobrante, (overplus,) which was 
 passed to the Governor, and went through all the customary steps and was returned 
 to the office again, where, I believe, it was delivered to Captain Sutter. 
 
 W. E. P. Hartnell deposes he knows Captain Sutter and New Helvetia ; Cap- 
 tain Sutter settled there before he got his grant. In all the papers I have seen his 
 settlement was called New Helvetia. I have seen the grant to Sutter, and have 
 made translations of it. I do not recollect the boundaries ; one I think was the 
 Peaks. I always considered the fort to be a part of New Helvetia. After exam- 
 ining the grant, I find it impossible for me to tell by the terms of it whether the 
 fort is within the grant. I do not personally know Feather river or its course. 
 
 Juan Costaneda deposes that I came to California with Manuel Micheltorrena. 
 He was the civil Governor and Commander-in-Chief of both California^. He first 
 came to California to exercise the duties of his office in September, 1842, and con- 
 tinued until April or May, 1845. I have known John A. Sutter since 1839 ; when 
 I first knew him he lived at Sacramento, then called New Helvetia. I know that 
 Captain Sutter presented a petition, in behalf of himself and his son, to Governor 
 Micheltorrena, which was acted on in the usual form and granted. I know that a 
 title was granted by Governor Micheltorrena to Captain Sutter ; I drew the deed 
 myself. I was Aid-de-Camp to the Governor. Was with him at Santa Barbara 
 when he executed the deed, in my presence. 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. 
 
 The first time I knew of the petition being presented was in the month of Octo- 
 ber, 1844, and the deed was executed about the month of February, 1845. I do 
 not know the quantity of land granted to him. Captain Sutter had received a grant 
 of land called New Helvetia, which he represented as distributed among his colo- 
 nists ; then he petitioned for a grant for himself and his son of the overplus of 
 sobrante, and which was granted to him in the title aforesaid. I believe the paper 
 marked "Exhibit C," and attached to the petition in this case, to be a true copy of 
 the deed drawn by me and executed by Micheltorrena above referred to. 
 
 Manuel Jimeno, deposes : I was acquainted with Micheltorreno when he was 
 Governor of California. He held the office from the latter part of the year 1842 
 to March or April 1845. I was his secretary during th^p whole period he held his 
 office. A petition was presented by Sutter in the name of his son to the Governor 
 in 1843 or 1844. The petition was presented by David Spence of Monterey. 
 The Governor asked of me as secretary, the information whether the petition could 
 be granted. I replied there was no objection. He then stated that it was very 
 well, and it remained to be matured on another occasion. 
 
 The Governor at that time was intending to visit Sacramento, but important 
 military affairs required his attendance, 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 had been to 
 examine in person. He was prevented from going to Sacramento by political diffi- 
 culties. The petition was not granted as far as I know. 
 
14 
 
 There was a map attached to the petition, as I believe. The Governor asked 
 information of me because it was his custom to do so on all occasions and because 
 he placed confidence in me. I think I had the information that Sutter possessed 
 the requisite to entitle him to a grant; I knew that Sutter was a naturalized citi- 
 zen of Mexico. I was informed the lands were vacant, there not being even In- 
 dians there. I do not recollect where the map which accompanied the petition 
 located the land. 
 
 Victor Prudon, deposed, August 17th, 1853 : I have resided in California nine- 
 teen years next September, and I know the establishment of New Helvetia. In 
 the year 1845, Capt. Castellero, General Castro and myself went to New Helvetia 
 to pay a visit to Capt. Sutter, and Capt. Castellero, who had special instructions 
 from the Mexican government, requested me to propose to Capt. Sutter to give him 
 one hundred thousand dollars for the establishment of New Helvetia. Capt. Sutter 
 refused, and I was requested to offer him the Mission of San Jose, and orders on 
 the custom house, the amount of which I forget. Capt,. Sutter also refused that. 
 He would not accept any proposition. The visit was made for the purpose of mak- 
 ing the offer I hav^tiamed. General Castro was then commandant of the depart- 
 ment of California, and Capt. Castellero, as said before, came with special instruc- 
 tions from the government of Mexico in relation to that subject and other matters. 
 I was at that time, lieutenant colonel in the Mexican army, and went with Castel- 
 lero as Secretary to prepare the necessary papers in case our proposition should be 
 accepted. The instructions I have spoken of were from the President himself, 
 dated in 1845. I was first at New Helvetia with the Russian Governor of Ross in 
 1841. I saw no one at the Fort at that time except the employees of Sutter and 
 the Indians. I think there must have been some two hundred persons there. 
 Whites and Indians. 
 
 Abner Bryan deposes that he is acquainted with the scope of country between 
 the Buttes and the city of Sacramento. It is about forty-five or fifty miles from 
 Sutter's fort at Sacramento, to the Buttes, in a direct line. A right line drawn 
 east and west through the Buttes, from the Sacramento to Feather river, would ex- 
 tend about fifteen or twenty miles. It is from twelve to fifteen miles from the junc- 
 tion of the Sacramento and Feather river in a right line to the Buttes. It is 
 between eight and twelve miles, on a right line drawn east and west, from Sacra- 
 mento to Feather river, midway between the junction of those rivers and the 
 Buttes. I hunted through thqt section in 1846, and am very familiar with the 
 country. That part of it lying east of the Sacramento, and between the Feather and 
 American rivers, is subject to periodical inundations during the rainy season ; in the 
 dry season it is not overflowed ; it is a flat country, with sloughs running through 
 it. The land on which Sacramento city now stands was occasionally inundated. I 
 suppose the levee now keeps out the water. It was not so much subject to over- 
 flow as the land above the American Fork. 
 
 When I arrived at Sutter's fort, in 1845, there was a family living at Corduas. 
 where Marysville now stands ; one at Jack Smith's, on the east side of Yuba 
 river ; he had a squaw wife ; Nye lived just below Smith's, at Nicolaus', on Feather 
 river ; Nicolaus had an indian wife, and a Dutchman Jived with him who had a 
 wife. The Dutchman came when I did, and went away soon after. The next set- 
 tlement below was St. Clair's, on the American river; he had a family. In and 
 about the fort were a number of families ; I can enumerate thirteen ; they were all 
 hired by Captain Sutter to work; there were men, women and children there whom 
 I did not know. Many of them went away ; I remember some ten families of my 
 acquaintance who left there and scattered off up the country. I knew but one fam- 
 ily that appeared to be permanently settled there, and that was Montgomery's. The 
 thirteen families included Cordua's, Smith's, Nye's, and Nicolaus', and the French- 
 man who lived with Smith. Seven or eight of those families came into the country 
 
15 
 
 in 1845; three of them left in 1846; the others left in April, 1846. St. Clair 
 lived on the north side of the American river, about two miles from the fort, on 
 what was called Grimes' ranch. Besides these I have named there were no other 
 families there at that time. 
 
 There was no family settled on the west of Feather river, except at Hock Farm. 
 I found Major Hensley there in 1846. There had been a man there before Hens- 
 ley; Captain Sutter had him there; I think his name was McKinley ; he staid until 
 he stole some mules, and theri went away. Captain Sutter was frequently passing 
 from the fort to Hock Farm, but I think he did not go there to reside until after 
 the troubles in 1846. Captain Sutter had no son "in this country at that time. 
 There were I suppose one hundred white persons at and near the fort : thirteen 
 families I knew, and seme eight or ten I did not know. In the latter part of No- 
 vember. 1845, or early in December, same year, an order was left at the fort by 
 Gen. Castro, Commander of California, for all Americans not naturalized to leave 
 immediately. 
 
 Witness describes the topogrophy of the country : 
 
 I think most of the good agricultural lands in Sutter's claim is situated north of 
 a line running east and west through the town of Fremont. December. January 
 and February are embraced in the rainy season, generally. The country is gen- 
 erally overflowed on each bank and for a good distance back each year. 
 
 H. E. Robinson deposes : The deed I was commanded to bring with me from 
 John A. Sutter to John S. Fowler and others, is not in my possession. It was 
 burned in the fire. Witness also describes the topogrophy of the country. 
 
 The affidavit of John A. Sutter says that the" original deed of conveyance of 
 claimant to claimant of John A. Sutter, jr., in said petition mentioned, conveying 
 the interest of said John A. Sutter, jr.. in and to the land mentioned is no longer 
 within the control of claimant, the same having been destroyed by the fire in Sac- 
 ramento city. 
 
 The deposition of Samuel Kyburtz, shows he has been acquainted with Sutter's 
 rancho since 1846, in October of that year. There were twenty-one families settled 
 on the rancho when I arrived, and there were some nineteen families who moved 
 on the rancho between my arrival and January 1847. The following are the names 
 of the persons there when I arrived : Nicholas Algier, John Hinkiey, Mont- 
 gomery, Mr. McDowell, Mr. Lehigh, James Smith, John Smith, Mr. Cordua, Per- 
 ry McCoon, Mr. Cadel, Mr. Nye, Mr. Reiser, Mr. Maintop, Mr. Grayson, Joseph 
 Vero, Mr. Ligard, Mr. Gondrow, a man they called Harry, and an old Spaniard 
 whose name I do not know. Thirteen of the above persons owned land : all were 
 men of family, and all had their families with them, and all had received their land 
 of Captain Sutter. 
 
 The names of those who settled after October 1846 and before January 1st, 1847, 
 are Mr. Brannan, Mr. Sturzenagger, Mr. Quivey, Mr. Lenox, Mr. Hatter, Mr. 
 Glover, Mr. Moutrie, Mr. Howell, Mr. Keseburgh, Mr. Kercher, Mr. McCracken, 
 Mr. Weemer, Mr. Curtis, Mr. McDaniel, Mr. Zings, and myself and another whose 
 name I do not recollect. I think there are not more than twenty-eight square 
 leagues within Sutter's claim that are fit for cultivation, between the three Buttes 
 and the line below Sacramento lying on both banks of Feather river and on the 
 west side of the Sacramento. There are not more than eight or ten leagues square 
 of that which does nor overflow by the currents of the river between the middle of 
 December and the first of May. Only one of the settlers I have named was settled 
 between the Sacramento and Feather rivers and the Buttes. He was called Harry, 
 and lived at or near Hock Farni. The land in and about the city of Sacramento 
 was subject to overflow, which was also the case with the immediate borders of the 
 Sacramento and Feather rivers above that point. 
 
 Most of the families I have named lived between the American and Sacramento 
 
16 
 
 rivers. The average width of laud on these rivers usually cultivated is from forty 
 rods to ten or twelve miles. 
 
 The claimant has also filed a transcript of a deed from the records of the county 
 of Sacramento, from John A. Sutter, junior, to John A Sutter, senior, dated June 
 25, 1849, of land lying in Upper California, contained within the following bounds, 
 beginning on the eastern bank of the Sacramento river, in latitude 39 deg. 33 
 min. 45 sec. north, thence east along the same circle of latitude to Feather river, 
 and continuing the same line to the distance of three leagues from the eastern bank 
 of Feather river, thence m .a southerly direction in a line parallel to the eastern 
 bank of Feather river, 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 line parallel to the eastern 
 hank of 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, thence along the southern bank of said American 
 river in an easterly Direction to the western boundary line of a tract of land known 
 as Leidesdorff 's Ranch, thence south to the circle of latitude which lies 38 deg. 41 
 min. 32 sec., thence west along said circle of latitude to the Sacramento river, 
 thence along said Sacramento river to the place of beginning, saving and excepting 
 out of said deed all lands granted out of the said premises by the said J. A. Sut- 
 ter, Jr., before the date of said deed, making a further exception of one half square 
 mile in favor of M. D. Muslip. 
 
 The claimant has filed a copy of a deed dated October 14, 1848, from John A. 
 Sutter, Sr., to John A. Sutter, Jr., for a tract of land in the Territory of Califor- 
 nia, commencing at a point on the east bank of the Sacramento river in latitude 39 
 deg. 33 min. 45 sec., running thence east to Feather river and three leagues 
 beyond, thence south to latitude 38 deg. 41 min. 32 sec., thence west to the Sacra- 
 mento, thence up and along the course of said river to the place of beginning, con- 
 taining about eleven leagues of land, be the same more or less, excepting Gunu's 
 Ranch, also Fort Ross. 
 
 A deed is put in evidence dated July 1, 1850, from John A. Sutter and Ann 
 Sutter, in Dubeld, his wife, to John S. Fowler, H. E. Robinson, Eugene F. Gilles- 
 pie and John McDougald, reciting that whereas John A. Sutter has for many years 
 been in possession of the land lying between the Feather and Sacramento rivers 
 and the Buttes, which land was granted to him by the Mexican Government June 
 18, 1841 ; and whereas, notwithstanding such possession, various persons have 
 intruded thereon and taken possession thereof, and asserted a claim thereto, to the 
 great annoyance and injury to said Sutter ; and, whereas, said Sutter is anxious to 
 be released from the trouble, expense and vexation of maintaining his lawful rights ; 
 and, whereas, the said parties of the second part are willing to accept said title and 
 assume the labor, expense and trouble of maintaining title thereto, and preserving 
 said land from and against all intruders ; and, whereas, as a further consideration 
 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 net proceeds of the said land when 
 and as the same may be sold ; and, whereas, the Ann, wife of said Sutter, is willing 
 to sign this conveyance upon the condition thai; the sai<^ party of the second part 
 shall convey to her for her separate property such tit; 3 as -hey may acquire by this 
 deed all that part of said land known as Hock Farm, fronting six miles on Feather 
 river and running four miles back. 
 
 The deed reserves all lands sold before that time, &e. 
 
 Another deed is put in evidence dated June 11, l^.VJ, :Vom John A. Sutter and 
 wife to Henry E. Robinson, John S. Fowler and J2. '. Gillespie, consideration 
 $15,000, for the land within the lines commencing at the intersection of the Sacra- 
 
iff 
 
 mento anl 4 merican rivers, running npEUtfr^d jmd following the meanders of the 
 Sacrament river to the tract on said river .embraced in the limits of the city of 
 Vernon, thence easterly at right angles with the general course of said river one 
 league, thsnce southwardly on a line running parallel with and equi-distant from. 
 the course and meanderings of said river until it intersects the American river, 
 thence along said river to the place of beginning, containing four leagues, more 
 or less. 
 
 A map is filed in the case, and it is stipulated the same shall be deemed and 
 taken as evidence in the case. It exhibits the township surveys as made by the 
 Surveyor General, including the city of Sacramento and extending thirty miles 
 above the Buttes. The Sacramento, Feather and Yuba rivers are also shown on 
 the map in their appropriate places. The map exhibits the latitude 38 deg. 41 
 min. 32 sec. about one mile above or north of the junction of the Sacramento and 
 Feather river? ; the latitude 39 deg. 41 min. 45 sec. about thirty miles above the 
 Buttes. Between the Sacramento and Feather rivers, on the easfc, south and west, 
 and a line running through the southern peak of the Buttes, extending east and 
 west, there are, by the surveys shown on the map, about three hundred and fifty 
 English square miles of land. 
 
 The foregoing abstract exhibits all the material evidence in the case. 
 
 BRIEF OF LAW AGENT. 
 
 Two petitions have been filed in this case one by Chetwood, Edwards and Rose 
 as attorneys, on the 8th of March, 1850, claiming thirty-three leagues of land; and 
 one by Crittenden, Inge and Martin as attorneys, on the 1st day of March, 1853, 
 WITHOUT leave of the Board, claiming eleven leagues. By the filing of the second 
 petition the claimant appears to have abandoned the claim set up under the t.venty- 
 two league grant in the first petition. But as evidence has been taken intended to 
 support the second grant we shall notice that in its proper place. 
 
 1. The claim to eleven leagues of land in this case is founded on a concession of 
 the date of June 18, 1841. It was not issued according to the usual practice of 
 the Governor. There was, it is true, a petition to the Governor from the claimant., 
 but that petition was never referred to any oificer to report upon the same, and the 
 Governor in making the concession acted without the usual information 
 
 2. Capt. Sutter was either an alien at that time or had been recently naturalized. 
 The Mexican Governor, naturally jealous, did not regard his petition with favor, 
 for instead of making him a grant of the land for his own use he made it for the 
 use of the petitioner and that of twelve other families. 
 
 3. 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, tor 
 the benefit of himself and family, as to have taken the concession to himself and 
 colonists. But this does not appear to be sustained by the facts. His petition to 
 the Governor was no doubt drawn at the ofiice of the Governor AFTCIL 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 GRANTOPV, had some WILL in the 
 matter and in accordance with the determination of the Governor the claimant 
 concluded to take his title. 
 
 4. This brings us to the examination of the nature and character of the conces- 
 sion. In the instrument itself it is expressed that the grant is made in accordance 
 with the law of 18th August, 1824, and the ordinance of the 21stNovemb3r, 18.28, 
 and it will be necessary to examine that law and th .t ordinance in the progress of 
 the argument of this case to ascertain wkat rights passed under them to the 
 claimant. 
 
 a 
 
18 
 
 6. Article 14, of the law of 1824, reads as follows : " Ihis law guarantees the 
 contracts which * empressarios' 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 empressarios for the purpose of cultivating and inhabiting them. 
 The grants made to empressarios for them to colonize with many families shall not 
 ba 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.) 
 
 6. The claimant's concession reeites 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 set- 
 tlers," 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 empres- 
 sario, and his title papers are to be construed into a contract TRIPARTITE, the Gov- 
 ernment stipulating to furnish the land, the grantee to furnish the colonists, and the 
 colonists to settflTtm the land, so as to comply with the spirit and meaning of the 
 colonization law. 
 
 7. 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. 
 
 8. To ascertain whether the claimant has complied with THE SPIPIT AND MEAN- 
 ING 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 Micheltoneno. 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 petition, 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 families (the least number allowed for a colony). 
 
 9. Those 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 thirteen 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 county. 
 There should have been then, in accordance with the evident intent of the conces- 
 sion, twelve families settled on the land embraced within the grant to comply 
 with the terms thereof. 
 
 10. 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 con- 
 tractor a REASONABLE time to comply with his agreement ; and within that reason- 
 able time the settlement must have been made or 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 be forfeited. 
 
 11. This mode of settlement was adopted by Spain in the early settlement of 
 Spanish America. An empressario was constituted some times with the title of 
 Adalantido, and authorized under the existing laws to colonize certain districts. 
 Cases of this kind may be found in Bancroft's History of the United States, vol. 1, 
 in the early settlements of Florida ; and as a first and leading case under the Mex- 
 ican colonization law of August 18, 1824, the settlement of Stephen F. Austin in 
 Texas deserves particular notice, as exhibiting the true policy of Mexico in coloniz- 
 
19 
 
 ing her vacant lands. The empressario 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 each one hundred families settled. Each settler was 
 to have a SPECIFIC TRACT OF LAND. The title to the land was conveyed to the 
 settler by the empressario jointly with a commissioner appointed by the Govern- 
 ment, and the empressario was not in any manner or for any purpose considered as 
 the legal owner of the soil. The Government controlled the settlement by pre- 
 scribing rules to the empressario, and generally by directing how and to whom the 
 lands should be* conveyed. (See 1st White's Recopilacion, vol. 1, from page 571 
 to (522.) 
 
 12. Capt. Sutter, in 1840, established himself near the south bank of the Ameri- 
 can Fork, and also about that time on the Pacific coast at the Russian settlement of 
 Ross. At that time he had no title to either place. After exploring the country 
 in 1841 he applied to Gen. Alvarado for a grant. Suiting himself to the views of 
 the Government, he applied for and received a concession in the nature of a con- 
 tract to settle twelve families, and we are now prepared to examine the question, 
 what rights passed to the petitioner. This must be done by a fair construction of 
 the instrument itself, and as the document is silent as to the PRACTICE necessary in 
 conveying title to the settlers, this Board is now called upon to construe it so as to 
 effect the intention of the parties. There is no proof of confirmation by the De- 
 partmental 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 thia Board is that a 
 perfect choate and complete title may be delivered to the petitioner by the Govern- 
 ment. Now, if the petitioner held the land in trust for himself and twelve other 
 families this Board 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 trutee, but courts never, without some 
 fault in the cestui que trust, discharge the trustee from his liability, but will com- 
 pel the strict performance of the trust. 
 
 13. The instrument upon which the claim in this case is predicated may be re- 
 garded 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 pe- 
 titioner) and that number of families, which families must be furnished, and the 
 portion of the eleven leagues which each was in equity entitled to, have been con- 
 veyed 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 cestue que trust 
 either in esse or in prospect, and if no 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 
 the number of residents who have from time to time occupied certain land under 
 the petitioner, none of which appears to prove the necessary facts. The Board 
 will notice that it is not inserted in the concession by way of a 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. 
 
 13. We will now ask the counsel to point out the twelve persons entitle 1 to re- 
 ceive 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. 
 
 14. 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 fami- 
 lies vras colonized ON THE LAND, within the spirit and meaning of the coloniza- 
 tion 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 perma- 
 nently 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 further 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 mean- 
 ing of the concession, and a decree to him and twelve others without naming them, 
 would be void for want of certainty. The evidence does not disclose ary twelve 
 of the persons nalfced in the proof as so entitled, consequently the claimant is not 
 entitled to confirmation of his claim. 
 
 15. On the hypotheses, that the instrument presented may be treated as a con- 
 cession to aa individual Has the claimant shown himself entitled to confirmation ? 
 In the third condition of the concession, are described the boundaries of the land 
 granted, eleven leagues, as exhibited in the sketch annexed to the proceedings : on 
 the north by the threeu Bttes, east by Feather river, south by latitude 38 deg. 49 
 rain. 32 sec., west by Sacramento river. 
 
 There is no map attached to the expedient, and no evidence any map was pre- 
 sented to the Governor in this case, other than such evidence as the grant itself 
 famishes. Most of the proceedings now in the Surveyor General's office, showing 
 the issuance of land titles, show also a map attached. In this case there is no evi- 
 dence to show what the map, which is referred to in the third condition of the grant, 
 exhibited. Viojet, it is true, made a map in January, 1841 ; but it is not shown 
 that his map was attached to the proceedings in any way. Viojet swears that the 
 map here shown to him is a correct copy, in its general otlines, of the one made by 
 him. Some objects are omitted, and some inserted, &c. ! This is said by the 
 witness twelve years after he made the map, and without having seen it in the interim, 
 and without comparing them ; and it is now sought, by virtue of this map, to over- 
 ride, break down, and wholly destroy all the calls named in the concession The 
 second petition clearly indicates what the claimant demands : a small margin on the 
 banks of the rivers, just enough to take in the most valuable of the lands, and this 
 is indicated by a dotted line traced on the map by the person who made the plat. 
 Truly it may be said of the claimant, or rather of his grantees, if he succeeds in this 
 construction of his title, " That his lines have fallen in pleasant places!" 
 
 17. The 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 ambi- 
 guity, oral testimony may be introduced to explain, but never to vary a written 
 instrument or supply a defect. (2d Phillips' Evidence, 344, 345, 350. Parteriche 
 vs. Powlet, 2d Atkyns, 382. Lord Cheyney's case, *2d Phillips' 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 entirely irrelevant. There is no ambiguity in the words of 
 eoutaiatd in t&e aouoaaaioii The grwafe was ntada if tar on aoourats 
 
n 
 
 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 in 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 eleven leagues were to be 
 taken within certain lines of demarcation set down in 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 the 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 remained of that domain, and passed to 
 the Government of the United States. 
 
 18. But it is contended that inasmuch as Captain Sutter had improvements at 
 a point on the American River, entirely outside of and more than twelve miles dis- 
 tant from the tract within which the grant must be located, his rights must now be 
 maintained, and that his settlement must govern the lines of the grant. I take it the 
 governing principle would be placed to the credit of the wrong party to give it that 
 construction. We need only refer to ordinary transactions to prove that principle not 
 correct. A, buys a piece of land, and without examining the boundaries, makes his 
 settlement, or, if you please, he settles and then buys, and the words of description 
 contained in his deed exclude his settlement, he brings suit against B, his grantor, 
 to compel him to convey the land on which his house stands, B shows deed and 
 alleges he never sold or agreed to sell that land, this would be a good answer, and 
 the court would necessarily say to A you must settle on your own land or take the 
 consequences of being a trespasser. 
 
 The grantor in this case had settlement in different places before he applied for 
 his grant, He continued to occupy the same ground after that he did before, and 
 with the same right, unless his title papers conferred upon him something additional. 
 
 19. It may be well to inquire at this time when the title of the claimant passed 
 to him. Was it when he settled in 1840 ? This Board decided in the Pulgascase, 
 that a new settlement did not confer title. Was it when Vioget made the survey 
 in January, 1841 ? That was a new private examination of the topography of the 
 country, and certainly could not confer title. Was it the signing of the grant that 
 certainly did not convey the title to land not described in it, and as no uncertainty 
 appears in the terms of the instrument, no parol testimony can be held admissable 
 to vary or control the calls of the grant. 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 grant- 
 ees 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 afterthought. In the first deposition of Vioget, he tells 
 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 
 SUITER 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 sur- 
 vey was under the direction of the interested party and as he wanted it. But the 
 making of the grant was a different thing, the purposes of government were to be sub- 
 served, and the Governor had the right to fix the locality and the terms of the con- 
 cession. He did so. This was the termination of his (the Governor's) connection 
 with the transaction. All the negotiations previously pending were merged in the 
 grant. The expediente was made up and deposited in the archives as a perpetual 
 
 of the &cfcs therein stated. IT WAS AN ACT OF GOVJERNMZNT 
 
 
22 
 
 pnted fall verity, and was entitled to full faith and credit. Copies of those pro- 
 ceedings are here produced from the office of Government. If they are of any 
 use they must be taken as true, aud they show that the claimant entirely disregard- 
 ed the terms of his concession and did not in any respect comply with the law in 
 making his settlement. 
 
 20. The home of the old pioneer is at Hock Farm, within the limits described 
 in the concesssion. The other settlements grew up spontaneously without reference 
 to proprietory 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 him- 
 self at the fort, and with the same rights in the soil. Will not the gentlemen con- 
 ducting the claimant's case ask for that 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. 
 
 21. But it is said the town 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, 
 there were no restrictive words modifying the boundaries to which that name ap- 
 plied. But a conveyance of Blackacre, when the conveyance itself was the com- 
 mencement 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. 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 aflection 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. Suiter still continued his settlement on the Amer- 
 ican 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 Captain Suiter 
 kept an establishment there, and if you will make that his head-quarters, 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 unite the Sacramento 
 and Feather rivers and the Buttes. 
 
 22. Those land marks 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 it were not established after 
 the grant was made, was at least an insignificant point without a name, and those 
 rivers which are set down as land-marks must be disregarded to conform to modern 
 ideas of property in law. 
 
 23. But it is said there was a mistake in the map in fixing the latitude of the 
 southern boundary. 
 
 The map now here shown to the Board, and proven to be a partial copy of a map 
 made by Vioget, has evidently been altered in more respects than one ; and wKen 
 V ioget swears that the map is correct in its general outlines he certainly cannot 
 mean that the lines of latitude have not been changed. He does not swear that he 
 compared the map with the copy. The line of latitude marked as passing through 
 Suiter's Fort is marked as 38 deg. 45 min. 32 sec. A line is traced on the map 
 just at the point where Vioget commenced his survey, at the lagoon below the city 
 of Sacramento, and that is marked 38 deg. 49 min. 32 sec.; the same figures 
 marked in the grant as the southern boundary. This line and these figures must 
 been placed there since the map was made, and with the design of conforming 
 
23 
 
 tae map to the wishes of some interested party, because no surveyor in Ms aenses 
 rouki make ajmap of land at that point with the latitude # increasing towards the 
 
 This is an additional reason tor believing that no such map as this was ever 
 presented to the Governor, and that he did not make the concession with reference 
 to this plan ; and this belief borders on certainty when we compare the circum- 
 stances sworn to by Vioget and those connected with the issuance of the grant. He 
 no where swears that he ascertained by -HIS calculations that latitude 38 deg. 49 
 mm, 32 sec. was at the starting point of his survey, and however imperfect his 
 instruments his real calculations may have been correct. The Governor must have 
 been shown a map with the line of latitude 38 deg. 49 min. 32 sec., passing at or 
 above the mouth of Feather river, because he makes that line a south boundary, 
 without providing any means for crossing Feather river and going south. Now, 
 look at the deposition of Vioget and you will see he took an observation at that 
 point for latitude ; and examine the map filed on behalf of Government and you 
 will see that the line of latitude named in the grant as the south bound is just at 
 the point where Vioget made his observation and there can be no doubt that the 
 Governor had such a map before him when he made the grant. It is true the 
 buttes are not properly located, but there was no observation at that point and they 
 were set down on the map without any attempt at accuracy. 
 
 We must therefore conclude that notwithstanding the attempt to prove inaccuracy 
 of instruments and mistake as to survey, those inaccuracies have been greatly mag- 
 nified, and the mistakes ascertained since the discovery of gold in California, and 
 the land sought to be included in this tract has increased in value. 
 
 25. In the petition of Sutter to the Governor, he asks for lands riot subject to 
 overflow. When this petition was handed to the Governor it is quite evident from 
 the proofs that neither the Governor nor petitioner knew exactly the nature of soil 
 or its liability to inundation by the periodical overflow of the river's banks. That 
 limitation was probably inserted so that when the land came to be separated from 
 the public domain by the proper officer lands might be taken above high water 
 mark. Be this as it may, the petitioner asked for and received his concession with 
 that limitation, and the proofs taken on the part of the claimant shows that they do 
 not expect a confirmation to those lands liable to overflow. Now, I submit that the 
 evidence establishes the fact that all the lands south of Feather river and east of the 
 Sacramento, not more than two miles distant from the Sacramento, are of that char- 
 acter. The requisite quantity of land might be found above high water mark 
 about the Buttes or on the east bank of Feather river high up, but not in the dis- 
 trict of country just north of the American. It is a well established fact in the 
 history of this country that the city of Sacramento is liable to overflow; and 
 although there are some years when the water does not rise above the banks of the 
 river at that point, the same thing is true of all other points in that vicinity, and if 
 there is any virtue in the exclusion of overflowed land in the grant it certainly can- 
 not be located at any point on the river much south of the Buttes, as the evidence 
 is clear that it is all or nearly all liable to overflow. 
 
 26. 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 num- 
 bers of persons to settle temporarily or permanently 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. 
 
24 
 
 27. But it is said, 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 Ameri- 
 can river;,' and east of Slitter's establishment. 
 
 Mr. Leidesdorff petitions for eight leagues of vacant land adjoining the lands of 
 Mr. Sutter, August '29, 1844. Manuel' Jimeno, same day, orders Mr. Sutter to 
 report. J. A. Sutter writes, of the date August 4, before the petition, that the 
 land is vacant. Jimeno reports that the land petitioned for is vacant, and so 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 under- 
 stood the truth to be. 
 
 In order to understand the legal effects of this proceeding, it will be necessary to 
 examine how those 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 nart 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 possessor of land under a 
 claim of title, to be the owner, until we investigate the matter, and find out the 
 defects in his chain 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 title papers. 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 establish- 
 ment of Sutter was named as a boundary. 
 
 28. 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 woras of description could not have a govern- 
 ing 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 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 arid vigorous person into the arteries 
 of an old and infirm one, the limbs that were before weak and decrepid 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. 
 
 29. 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. Proud- 
 hon'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. 
 
25 
 
 In the first place, the order of Castellero is not produced, and no proof of that order 
 other than the order itself, can be 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 
 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. 
 
 30. 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 be- 
 lieved, has never been doubted, and if it is applied in this case, nothing but a for- 
 mal 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. 
 
 31. We will now turn our attention to the alleged second grant of 22 leagues to 
 the same grantee and his son. The original has not been produced, and I submit 
 that there is no sufficient proof of the execution and delivery of the document cor- 
 responding to the paper filed as a copy. Juan Castaneda says, Sutter presented a 
 petition which was acted on in the usual form and granted. Now the usual form 
 was to present the petition in writing ; the Governor referred it to an officer to re- 
 port ; upon that report a written decree was entered, which taken together, formed the 
 expediente, and the documents were regularly filed with the Secretary and became 
 part of the archives. 
 
 Before any parol proof can be received of these proceedings the existence and 
 losa^must be established. The witness says he drew the deed and Micheltoneno ex- 
 ecuted it in his presence. But no delivery to the claimant is proved, and no per- 
 son ever saw the instrument in Sutter's possession except John S. Fowler, whose 
 evidence we will examine in its place. There is no evidence in the archives of any 
 such grant, which of itself casts a strong suspicion over the transaction, and there 
 is no evidence whatever that Castaneda ever signed it as Secretary. In the first 
 deposition of John S. Fowler no mention is made of this 22 league grant, although 
 he testifies of the existence and loss of the Alvarado grant. 
 
 In a second deposition he testifies that he had in his possession the grant of Feb. 
 5, 1845, that it was destroyed by fire, and that the paper filed is a correct copy. 
 But he came to this country long after Micheltorena left, and never saw the Gover 
 nor write, and of course could not speak to the genuineness of the grant. He never 
 compared the copy with what he called the original, yet he swears they are alike. 
 Now it is submitted that this is not competent testimony to prove a delivery of THE 
 document to Capt. Sutter. It can only be evidence to prove that A document, which 
 may have been made by interested parties, was deposited by Capt. Sutter with Mr. 
 Fowler, the genuineness of which is not proved unless by the evidence of Casta- 
 neda, and he only goes so far as to prove the signing, not the delivery. The inter- 
 ested parties finding they could prove this much may have made the document de- 
 posited with Fowler since that time. 
 
 32. But it is shown by the deeds on file, that John S. Fowler is largely interest- 
 ed in the confirmation of this claim, and although he has sworn he is not so inter- 
 ested, the proof is positive that he had an interest by virtue of those deeds, and 
 nothing short of a deed or competent conveyance could divest him of his interest, 
 
 4 
 
26 
 
 They have not .shown his interests have passed out of him, and therefore the legal 
 conclusion remits that his interest is undisposed of. His depositions then can have 
 no other or further effect than to piove the loss of the papers, leaving their exis- 
 tence, delivery and contents to be proved by other sources, and as they have failed 
 to produce that other testimony they have failed to prove the existence, delivery or 
 contents. 
 
 33. On the supposition that the document was made and delivered what are the 
 legal resultt ? 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 
 t jat 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 convey- 
 ance to him from any person to whom he 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 wfllt his hands thus tainted with fraud. 
 
 84. 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 he 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. Thar part 
 of the grant was clearly illegal, and the son took nothing by the concession. 
 
 35. The tov-J=.u section of the Colonization law of 1824 provides that NO PER- 
 SON SHALL BE ALLOWED TO OBTAIN THE OWNERSHIP of more than one league 
 square of irrigable land four superficial leagues of land dependent 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 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 Board 
 to confirm to the petitioner thirty-three leagues of land. Before the Board can 
 comply with the petition they will require the claimant at least to clear himself of 
 the imputations of fraud. 
 
 86. The instrument recites that John A. Sutter and his son have solicited the 
 SURPLUS of land within his rancho named New Helvetia, as Jaid down on the map 
 which accompanies the grant, and then says: " I have conceded to them the men- 
 tioned land, declaring in them the ownership by these presents, subject to the appro- 
 bation of the Departmental Assembly." There are no other words of description 
 contained in the document ; it is not even said what grant the map referred to 
 accompanied. No map was preserved in the archives, and there is no connection 
 whatever shown between the words of description in this paper and any map what- 
 ever. Counsel may ask the Board to draw on their imaginations for the connec- 
 tion between the map filed and this grant ; but a court of equity will hardly go so 
 far as to presume any material fact in favor of a grant coming to light under the 
 circumstances attaching to this. 
 
 37. 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 locate the land 
 
27 
 
 called for with certainty, even if a confirmation could be had, as the calls in the 
 concessions are made with reference to a certain quantit^Fof 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 this Board in the Honcut case, and it has been repeatedly 
 re-affirmed, 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 Government. 
 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 calcu- 
 la ions are easily made. There are between three and four hundred square miles 
 of land between the Sacramento and Feather rivers and the Three Peaks. Captain 
 S utter 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 ail of which land the claim- 
 ant exercised jurisdiction, and all of which he has sold, as appears by his deeds on 
 file. Among the decisions of this Board wherein this principle is discussed and 
 decided are the following : Huber vs. U. S.; Morillo vs. U. S., No 432; McKee vs, 
 U. S., Feliz vs. U. S., No. 83; Semple vs. U. S.; Southerland vs. U. S., No. 263: 
 Amillaros vs. U. S., No. 163; Portilla vs. U. S. ; Soberanes vs. U. S. ; Heirs of 
 Satillades vs. U. S., No. 120. Now if the Board can seperate out from this large 
 amount of land eleven leagues or thirty-three leagues and say THAT SPECIFIC TRACT 
 WAS GRANTED, it will do more than the claimants themselves can do. It is true, 
 eleven leagues or thirty-three leagues can be located, and so they could if no grant 
 had been attempted ; but it cannot be said they can be located ACCORDING to the 
 grants, and within the spirit of the rules laid down by the Board in the cases above 
 cited. 
 
 37. The claim in this case is for thirty-three leagues of ARABLE land. The col- 
 onization laws of Mexico allowed only one league of irrigable land and four super 
 ficial ones dependant on the seasons to be united in one man as the owner. There Was 
 in that law an evident intuition to confirm the grantee to five leagues of land which 
 could be cultivated, allowing six additional leagues for grazing purposes. No ju- 
 dicial offic; r could have been induced to give, even if he had the power, a front 
 of a navigable river of one hundred miles or more, and thus exclude all others from 
 that amount. It was decided in the case of the United States against Hanson, 
 (16th Peters Supreme Court Reports,) that surveys of land under concessions from 
 the Spanish Government must not front on rivers more than one third of its longi- 
 tudinal extent back. The whole matter now rests with the United States Govern- 
 ment, and the claimant asks a patent which will cut off from the river Sacramento 
 all access on its east side, except through the lands of claimant from six miles be- 
 low the city of Sacramento to a line drawn east and west through the Buttes, a dis- 
 tance of about sixty milles, and the same thing is asked on the Feather river from 
 its mouth to the same line. Such a decree as is now applied for would be subver- 
 sive of the Jaw refered to, contrary to the practice of the Mexican and American 
 Governments, and subversive of the best interests of the country. 
 
 For the foregoing reasons, which with others, will be exhibited orally to the 
 Board during the argument, the claim should be rejected, and the sub-claims of 
 Hiram Grimes, on the east side of the Sacramento, and Roland Gelston, on the 
 south side of the American river be dismissed. 
 
 J, H. McKUNB, Law Agent.