Opinion of the court.

from those who signed the protest shortly after the disaster, which in substance and effect confirms the respondents' witnesses, and fully justifies the finding in that behalf in the court below. Reasonable doubt cannot be entertained that it was intensely dark at the time of the collision. Both the courts below were of that opinion, and we fully concur in that view of the case, and think it sufficient under the circumstances to express that concurrence without reproducing the evidence.

VI. Reported cases where it has been held that collisions occurring in consequence of the darkness of the night, and without fault on the part of either party, are to be regarded as inevitable accidents are numerous, and inasmuch as there is no conflict in the adjudications, it is not thought necessary to do much more than to refer to some of the leading cases upon the subject.* Where the loss is occasioned by a storm or any other vis major, the rule as established in this court is that each party must bear his own loss, and the same rule prevails in most other jurisdictions.† Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied.

Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, must be understood to meạn a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident.‡ When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of The Europa, must be considered as a relative term, and must

* Stainbach et al. v. Rae et al, 14 Howard, 538.

† 1 Parsons' Merc. Law, 187; Woodrop Sims, 2 Dodson, 85; The Itinerant, 2 W. Robinson, 243.

The Locklibo, 3 W. Robinson, 318; The Pennsylvania, 24 Howard, 313. 2 English Law & Equity, 559.

Statement of the case.

be construed not absolutely but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution, and maritime skill.* Regarding these cases as sufficient to show that a collision resulting from the darkness of the night and without the fault of either party, is properly to be regarded as an inevitable accident, we forbear to pursue the investigation, and wish only to add that we have no doubt the case was correctly decided in the Circuit Court.

The decree of the Circuit Court is therefore,

AFFIRMED WITH COSTS.

GORDON V. UNITED STATES.

No appeal lies to this court from the Court of Claims.

GORDON, administrator of Fisher, presented a petition in the Court of Claims of the United States, for damages done to him by troops of our Government, in the war of 1812 with Great Britain. The Court of Claims decided against him, and he appealed to this court. The case was argued in favor of the right of appeal by Messrs. Gooderich and Winter Davis; no counsel appearing on the other side. A majority of the court, however,† finding itself constrained to the conclusion that, under the Constitution, no appellate jurisdiction over the Court of Claims could be exercised by this court, and intimating that the reasons which necessitated this view might be announced hereafter-the term being now at its close the cause was simply

DISMISSED FOR WANT OF JURISDICTION.

*The Virgil, 1 W. Robinson, 205; The Juliet Erskine, 6 Notes of Cases, 634; The Shannon, 1 W. Robinson, 463; Same Case, 7 Jurist, 380. † Miller and Field, JJ., dissenting.

Statement of the case.

THE SUTTER CASE.

1. On the 18th of June, 1841, Juan B. Alvarado, then Governor of California, issued to John A. Sutter, for himself and colonists, a grant of land designated as New Helvetia, of the extent of eleven square leagues, as exhibited on the map annexed to the petition for the grant, "without including the lands overflown by the swellings and currents of the rivers," and bounded as follows: on the north, by Los Tres Picos (The Three Summits), and 39° 41′ 45′′ north latitude; on the east, by the borders [or margins] of the Rio de las Plumas (Feather River); on the south by the parallel of 38° 49′ 32′′ of north latitude; and on the west by the river Sacramento. This grant was adjudged valid and confirmed, and a survey of the eleven leagues was made by a deputy surveyor under instructions of the Surveyor-General of California, locating the land in two parcels,-one of two leagues, and the other of nine leagues,-separated from each other several miles, and the latter parcel embracing land situated on each side of the Feather River; the location, in both of these particulars, conforming to a survey made previously to the petition of Sutter for the grant. Each parcel was located in a compact form, and in conformity to the lines of the public survey. The District Court, under the act of June 14th, 1860, set this survey aside, and, by its direction, a new survey was made, locating the eleven leagues in thirteen tracts of different dimensions and forms, some of which were separated from each other. In directing the location in this manner, the District Court intended that the several selections, which the grantee himself was considered to have made by settlement, or by lease, or sale, or other acts of ownership, should be adopted, and in the order in which they were made, until the whole quantity of the eleven leagues was exhausted. On appeal, this court fully appreciating the difficulties and embarrassments that surrounded the case," set aside this latter survey, and directed the District Court to confirm the first survey as the more correct location of the grant.

2. By the terms in the grant "lands overflown by the swelling and currents of the rivers," were meant tule or swamp lands.

3. Semble, that in locating land in California, claimed under confirmed Mexican grants, compactness of form and conformity to the lines of the public surveys must be preserved, to the exclusion, if necessary, of selections of the grantee as indicated by his settlement, or by his sale or lease of parcels of the property.

4. Semble, also, that land claimed under a confirmed Mexican grant may be located in two parcels, where, from the character of the country, the entire quantity granted cannot be located in one tract.

THIS case, which involved immense interests in California, and questions greatly agitated in a particular portion of that

Statement of the case.

State, was an appeal from the decree of the District Court of the United States for the Northern District of the same, approving and confirming the survey and location of a claim to land under a Mexican grant to a certain John A. Sutter; a name abundantly known in the valley of the Sacramento, and which has left traces of some depth in the history of land titles in that region.

Sutter himself, as described by another pen,* was a native of Switzerland, who came to the Department of California about the year 1839; long, of course, before the incorporation of that region with the United States. He was a man of a romantic cast of character, and having naturalized himself as a citizen of Mexico, formed, with the leave of its Government, a settlement near the junction of the Sacramento and American Rivers. In honor of his native country he designated it New Helvetia. The country, at that time, was uninhabited, except by bands of warlike Indians, who made frequent predatory incursions upon the undefended settlements to the south and east of this place. In two or three years after his arrival, Sutter was commissioned by the Governor of California to guard the northern frontier, and to represent the Government in affording security and protection to its inhabitants against the invasion of the Indians and maranding bands of hunters and trappers who occasionally visited the valley for plunder. In the year 1841 he commenced the erection of a fort at New Helvetia at his own expense.† It was surrounded by a high wall, and was defended by cannon. Within this fort there were dwelling-houses for his servants and workmen, and workshops for the manufacture of various articles of necessity. There was a grist-mill, tannery, and distillery attached to the esta blishment. A number of Indians were domesticated by him, and contributed to cultivate his fields of grain, and to defend the settlement from more savage tribes. He was possessed of several thousands of horses and neat cattle,

*Campbell, J., of this court.

+ Designated on the map facing p. 564, as "Establa de Nueva Helvetia "

Statement of the case.

which were under the care of his servants. There were collected, at different times, from twenty to fifty families; and there were, in the course of years, some hundreds of persons connected with this settlement. He is described as having been hospitable and generous to strangers, and the Governors of California bear testimony to the vigor with which he performed the duties of his civil and military commission. Being a man of schemes, and of an adventurous turn, he sought, after a certain time, to extend his settlements and influence upward along the river; and did so, examining and fixing upon lands for miles up the Rio de las Plumas, a large tributary of the Sacramento. His ideas and acts were somewhat visionary; his habits of business not good; and, relying on titles possessed or to be obtained and confirmed from the Government, he made very numerous grants to great numbers of persons; grants of vastly more land, as it turned out, than he owned. When, therefore, after the cession of California, our Government acknowledged his right, under Mexican grant, to a certain quantity of land, the exact location of which remained to be practically fixed, the fact that he had made deeds for much more than the quantity admitted as his, raised a great question among his various grantees as to where, exactly, his admitted land was situated. Each wished that which Sutter had granted to him to come within the limits, and the Government also had its interests in the location.

The matter, as in mode and form it now came before this eourt, was thus:

In 1852, Sutter presented to the Board of Commissioners, created by Congress under the act of March 3d, 1851, to ascertain and settle private land claims in California, a petition asking for the confirmation of a claim asserted by him to eleven square leagues of land under a grant alleged to have been issued to him on the 18th of June, 1841, by Juan B. Alvarado, then Governor of the Department of California. The grant gave the extent and boundaries of the land thits:

"It is of the extent of eleven square leagues, as exhibited in