Statement of the case. made a survey of the eleven square leagues in 1840 or 1841, and also the map referred to in the grant to Sutter; and in Statement of the case. his depositions filed in the case he testified that in his survey two leagues were located, at the request of Sutter, south of the American River, and that the remaining nine leagues were located on the banks of the Feather River, on each side, commencing at the Canadian Ford and extending up the river. Von Schmidt testified that in making his survey he had with him the map referred to, and the depositions of Vioget; also another map marked “A. P. L.,” which, except that it has not the dotted lines marked in the latter, is similar to the map facing page 564, and marked "B. P. L.;" and that he found no difficulty in locating two leagues below the American River, and nine on the margins of the Feather River; and that he ran the lines so as to conform as near as practicable to Vioget's survey. The two surveys varied somewhat, as Von Schmidt was obliged to run the lines in accordance with the subdivision lines of the public surveys presented by the established regulations of the land department of the Government. This survey and location of Von Schmidt, the District Court set aside, and under its direction a new survey and location were made, and on the 11th of May, 1863, was approved by the Surveyor-General of California, and a plot of the same, duly certified, was returned into court. On the same day the District Court, by its decree, approved and confirmed the new survey and location, marking it, "Approved, May 11, 1863; Ogden IIoffman, District Judge;" and from the decree the present appeal is taken. By this new survey, the eleven leagues were located in a long line of tracts, several of them very narrow, all along the Feather River, above its junction with the Sacramento, and on the Sacramento afterwards to where it meets the American River, with a large tract, as before, south of the last-named stream. This broke up the eleven leagues into thirteen tracts of different dimensions and forms; but the cessation of the continuity was nowhere large. The matter will be explained, perhaps, by reference to the map opposite, where this location is indicated by a heavy continuous line all along the Sacramento and Feather Rivers, and south of the American Statement of the case. River, as distinguished from the lighter dotted one on the same map, at its top and bottom only. Sutter, as already mentioned, was a man of undefined ideas, with habits of business not the best. And having made grants of much more land than he had, it was plain that whatever decision was made as to their respective precedence, many persons would be losers, under circumstances of much hardship as respected some of them. The District Court, in directing a location in the manner just mentioned, intended that the several selections which Sutter 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 eleven leagues was exhausted. His Honor, the District Judge, however, after a very able exposition of the grounds of the decree, acknowledged the difficulties of a "most embarrassing case." "With no clear rules of law to guide me, unable to discern accurately what even equity and justice demanded, embarrassed by the careless improvidence which has led Sutter to convey away more land than he even supposed he possessed, and far more than the quantity to which by the unexpected decision of the Supreme Court, he has been restricted, with the external boundaries of the tract vague and undefined, and even the original papers, in some respects, ambiguous and contradictory, I have been compelled," he said, "to content myself with endeavoring to settle the case as fairly as was practicable, under the circumstances, and to renounce the hope of obviating every objection, or avoiding the infliction of much hardship. The case is one rather for the 'arbitrium boni viri than the subject of a judicial determination proceeding upon fixed and absolute rules." Numerous objections were taken in the court below, and were urged in this court, to the survey thus ordered by purchasers under Sutter, and by persons claiming rights by settlement under the United States. The objections were not all consistent with each other. One of the intervenors (Gelston), contended that a greater quantity than the amount Statement of the case. given, two leagues or more, should have been located south of the American River. The United States not objecting to the location south of the American River, contended that the eleven leagues could not be located in separate and distinct parcels, but should be located in one body, and in a compact form, and, therefore, that the nine leagues should be taken immediately adjoining the other two, and on the north of the American River, or that the two leagues should be selected from land adjoining the nine on Feather River. The parties claiming an interest in the premises by settlement under the United States, contended that the whole quantity granted should be located between the Sacramento and Feather Rivers, that is to say, in the forks of these rivers, below the Three Buttes, and that the land upon which the city of Sacramento is situated should be excluded from location as overflowed land, reserved by the terms of the grant. Two intervenors (Packard and Woodruff) contended that the survey made by A. W. Von Schmidt, and filed February 27th, 1860, was the correct survey of the eleven leagues. A vast variety of testimony was taken in the case, and numerous documents of different kinds, including grants by Sutter, up and down the rivers and elsewhere, were offered in evidence, the whole bearing more or less directly upon the matters in controversy. The printed record contained nine hundred and eighty octavo pages, and there were maps! in number indefinite. It is sufficient for the proper understanding of the opinion of the court to state, generally, that the evidence showed,-the settlement and occupation by Sutter of the land below the American River, as already stated above; the settlement of colonists under Sutter, soon after he obtained his grant on the east bank of the Feather River (or as was asserted and contended in the argument, before); a subsequent selection and occupation by him of the tract known as Hock Farm, on the west bank of the Feather River;* that the whole country embraced within * The place marked “Rancheria de Hock,” on the map B. P. L., facing p. 564; also, the tract "Hock," on map at p. 568. Statement of the case. the exterior limits of the grant, with the exception of small portions, insufficient to satisfy the eleven leagues granted, is sometimes, every two or three years, overflowed by water, and in many places to the depth of several feet; that the greater part of the tract embraced in the survey made by Von Schmidt, and also in the survey approved by the District Court, is thus sometimes overflowed; that within the exterior limits there are also immense tracts of marsh or tule lands, which are covered with water every year during the entire winter, and during the greater part of the summer months, and which were unfit for either cultivation or pasturage without draining; and that neither of the surveys mentioned include any portion of those marsh or tule lands. This grant gives the extent and boundaries of the land, as already mentioned, that is to say, as follows: "It is of the extent of eleven square leagues, as exhibited in 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 (los Tres Picos) the Three Summits, 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." Alvarado, the governor, who issued the grant, testified that the Spanish words, "las tierras senigadas" in the original, which are translated "the lands overflowed" in the document in the record, mean swamp or tule lands overflown and unfit for cultivation. The parallel of latitude (lindero latitud) given in the grant as the southern boundary, falls near the junction of the Sacramento and Feather Rivers, as appears by the map. Alvarado testified that he inserted in the grant the degrees of latitude as they were marked on the map. And Vioget testified that he drew the line across the map a few miles below the American River, and marked it as the southern boundary with the latitude designated; but that the obser vation taken of the latitude was not correct, owing to his |