Statement of the case.

the sketch annexed to the expediente, without including the lands overflowed (las tierras senigadas) by the swelling and current of the rivers. It is bounded on the north by The Three Summits (Los Tres Picos) and 39° 41′ 45′′ north latitude; on the east, by the borders [or margins] of the Feather River; on the south, by the parallel of 38° 49′ 32" of north latitude; and on the west, by the river Sacramento."

In 1853 he amended his petition, and claimed an additional quantity of twenty-two leagues under a grant alleged to have been issued to him and to his son on the 5th of February, 1845, by Micheltorena, at that time Governor of California; this quantity being the surplus (sobrante) embraced within the exterior limits from which the eleven leagues first granted were to be taken.

The board by its decree confirmed the claim under both grants. On appeal to the District Court of the United States, the decree of the board was affirmed. But on appeal to this court, the claim under the first grant alone was adjudged valid, it being held that the second grant, from the circumstances under which it was issued, was not entitled to recognition by the United States under the treaty of cession.

The decrees of the Board of Commissioners and of the District Court are substantially in the same language. In the description of the land they are identical. The description is as follows:

"The land of which confirmation is made is situated on the American, Sacramento, and Feather Rivers, and is known by the name of New Helvetia, being the same which was granted to the said John A. Sutter, by grant duly executed by Governor Juan B. Alvarado, on the 18th of June, 1841, and by a grant from

* See map "B. P. L.," supra, facing page 564.

United States v. Sutter, 21 Howard, 170.

These are the rivers designated, on the map facing page 564, as Rio de los Americanos, Rio del Sacramento, and Rio de las Plumas. On this map no name is given to the river after the junction of the parts marked as Rio del Sacramento and Rio de las Plumas. It is continued, however, in fact, under the name of the Sacramento.

Statement of the case.

Governor Manuel Micheltorena to the said John A. Sutter, and his son. John A. Sutter, Jr., dated February 5th, 1845; the first for eleven square leagues of land, as exhibited on the sketch annexed to the proceedings, and the second for twenty-two square leagues of the sobrante, or surplus of land within his rancho, named New Helvetia, as laid down on the map which accompanies the grant; the said land to be located according to the calls of the respective grants, as described and explained in the depositions of John J. Vioget, filed in the case, and within the following limits, to wit: On the south, by a line drawn due east from the Sacramento River, so as to touch the most southerly point of a pond or laguna situated near said river, and about five miles south of the American River, as represented on the map filed in the case, and marked B. P. L.' (facing page 564), exhibit to deposition of Juan B. Alvarado, March 15th, 1855, which is also marked on said map Lindero latitud norte 38° 49′ 3′′; on the north by a line drawn due east from Sacramento River to the southern base of the mountains known as the Buttes, and represented on the said map by the name of Los Tres Picos; and from thence until it intersects the eastern boundary of the tract, as represented on said map, and described in the grant, and in the depositions of the said Vioget; on the west by the said river Sacramento, and on the east by the margins of Feather River, inclusive. For more particular description, reference to be had to the copies of the grants filed and proved in the case, bearing date the 18th of June, 1841, and the 5th of Februaay, 1845, to the said map marked B. P. L.,' exhibit to deposition of Juan B. Alvarado, March 15th, 1855, and to the deposition of John J. Vioget and Juan B. Alvarado, all of which are filed among the papers in the case."

The mandate of this court, which, on its decision, was remitted to the District Court, to be there executed, recites the decree appealed from entire, and, after mentioning the argument of the case, proceeds as follows:

"On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that so much of the decree of the said District Court as confirms the claim of John A. Sutter to the eleven square leagues of land situated on the American, Sacramento, and Feather Rivers, known by the name of New Helvetia,

Statement of the case.

and which was granted to the said John A. Sutter by Governor Juan B. Alvarado, on the 18th of June, 1841, as set forth and described in said decree, be, and the same is hereby affirmed. And it is further ordered, adjudged, and decreed by this court, that the residue of the said decree, in so far as it confirms a grant for twenty-two square leagues of land, purporting to have been made to the said John A. Sutter by Governor Manuel Micheltorena, on the 5th of February, 1845, be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said District Court, for further proceedings to be had therein, in conformity to the opinion of this court."

Under this mandate a survey was made, in 1859, by one A. W. Von Schmidt, deputy surveyor, under J. W. Mandeville, the Surveyor-General of the United States for California. The survey was made under the instructions of the SurveyorGeneral, and was approved by him on the 18th of February, 1860, and a certified copy was filed in the District Court, on the 27th of the same month, under the order of the court. This survey includes two leagues of land, situated south of the American River (within the present county of Sacramento), and nine leagues, situated on the banks of Feather River, portions on each side commencing at a place formerly known as the Canadian Ford, and extending up the river.* The two parcels were separated from each other several miles. Each parcel was located in a compact form, and in conformity with the lines of the public surveys. The location will appear by reference to the map on the next page, where it is indicated with sufficient correctness to give an idea, by the light dotted lines forming the top of the map, as to one part, and on the south of the American River, as distinguished from heavier dark ones in those same parts of the map, and all along the river between.

John J. Vioget, whose name is mentioned in the decree of the District Court, was an engineer and surveyor, and

* This "Canadian Ford" is marked on the map facing page 564 by a small bar across the river.