of the Territory o Nebraska rendered the decree in this case. No appeal was prayed at that Term; and no citation has ever issued. But in the June Term, 1865, Mr. Garrison's counsel moved that court for an order allowing an appeal as to the Term of 1861. The County was not served with notice of the motion and did not appear to it. No special cause for the relief sought was shown. The motion was, however, granted, and the case is here upon the order so entered. Mr. J. M. Carlisle, for the motion: 1. From the Term in 1861 to the term in 1865, a citation was necessary to bring the cause into this court. Yeaton v. Lenox, 7 Pet., 220. The order of 1865 was void; because, On motion to dismiss. On motion to dismiss, Mr. Chief Justice Chase delivered the opinion of the court: The final decree in the district court was rendered on the 8th September, 1863, and an appeal was allowed, on motion of the claimant, on the 18th November, 1863. Upon this appeal no action was taken by the appellants. On the 23d February, 1864, an appeal was again allowed, and the record was brought to this court and filed November 11, 1864. This was in time, but no citation was issued to the adverse party, and there is nothing to show any waiver; and a citation, with due return, or waiver by general appearance or otherbe-wise, is indispensable to jurisdiction on appeal. 1. The decree had been rendered and the mandate to execute it had gone to the court low; so that the jurisdiction of the Supreme Court of the Territory was exhausted. Wash. Bridge Co. v. Stewart, 3 How., 413. A motion in the Territorial Court to vacate the order would have operated to render the order effectual. United States v. Gomez, 1 Wall., 701, (68 U. S., XVII., 677). If the course pursued in this case is sanctioned, appeals may be brought to this court and disposed of without the knowledge of what is going on, on the part of those who are unfortunate enough to be successful in the inferior courts. Messrs. Jeremiah S. Black and Reddick, for appellant. Mr. Chief Justice Chase delivered the opinion of the court: The decree in this case was rendered on the 13th June, 1861. No appeal was prayed or allowed until the June Term, 1865. At that Term, on motion of the defendants below, an appeal was allowed nunc pro tunc, as of 13th June, 1861. There is nothing in the record which war ranted the making of this order; nor, if it could have been lawfully made, would it avail the defendant, for there was no citation to the appellees, and the record was not brought up at the next term of this court. At most, it can only be regarded as an allowance of an appeal at the June Term, 1865, and no citation appears to have been issued since to the appellees, nor was there any equivalent notice, nor has there been any waiver. The appeal must, therefore, be dismissed for want of jurisdiction. Bacon v. Hart, 1 Black, 38 [66 U. S., XVII., 52]: Castro v. U. S., 3 Wall., 49 [ante, 163]. The writ, therefore, must be dismissed. THE UNITED STATES ET AL., Appts., v. JOSÉ FRANCISCO ARMIJO ET AL., (See S. C., 5 Wall., 444-450.) Mexican grant, in subordination to another title -of a specific quantity, how selected from a larger tract-not to defeat other equitable rights, nor to conflict with other patents. nation to the previously existing rights of another, Where a grant of land in California is in subordi the rights of the latter, according to Mexican usages, are superior to those of the former, notwithstanding the formal title issued first to him. exterior limits embracing a much larger quantity, Where a grant was of a specific quantity within there is no obligation to allow the quantity to be selected in accordance with the wishes of the grantee. The right of the grantee to direct a selection of the quantity granted is only a privilege given by the generosity of the government. permitted so as to defeat the equitable prior rights The exercise of the right of selection is never of others. Where the survey is made so as to avoid collision with any of the elder patents, and in reasonable conformity with the decree of confirmation, it will be affirmed. [No. 86.] Submitted Jan. 10, 1867. Decided Jan. 28, 1867. APPEAL from the District Court of the Unit ifornia. ed States for the Northern District of Cal In January. 1837, Francisco Solano, a Chief of an Indian tribe, presented a petition to the Commanding General of the Northern Frontier of California and Director of Colonization, for a grant or tract of land of about four square leagues in extent, known by the name of Suison. In his petition he represents that the land belongs to him by hereditary right from his ancestors, and that he is in actual possession, but that he desires to "revalidate" his rights-that is, to obtain a new recognition of their validity in accordance with the existing laws of the Republic, and the recent laws of colonization decreed by the Supreme Government. The commanding general soon afterwards, during the same month, acceded to the petition so far as to give Solano a provisional grant of the land, as belonging to him by natural right and actual possession; but accompanied it with a direction to him to ask from the government the usual title, in order to give validity to his rights in con formity with the new law of colonization. In accordance with this direction, Solano applied, in January, 1841, to Alvarado, then Governor of California, for a full grant, accompanying his application with the above petition to the commanding general and the provisional grant of that officer. On the 20th of the same month, a formal grant was accordingly issued to him by the Governor, which was afterwards approved by the Departmental Assembly. that on no account should the grantee molest the Indians nor his immediate neighbors. This grant was also presented to the Board of Land Commissioners and was rejected. On appeal to the district court, the decision of the Board was reversed, and the grant confirmed, and at the December Term of 1859 the decree of the district court was affirmed by this court. The survey made by the Surveyor-General of the United States for California, of the tract thus confirmed, locates the land adjoining the tract patented to Ritchie, and was approved by the decree of the district court in July, 1863, and the case comes before us on appeal from this decree. The appeal is prosecuted by two intervenors claiming under the Armijo title. All the other representatives of the original grantee approve of the location made and desire its confirmation. The United States are also appellants on the records, but they do not press their objections urged in the court below. The specific quantity granted is not described by metes and bounds in either of the two grants; but, in each, reference is made to a map indicating the exterior limits within which the quantity is to be taken. Both maps represent, to a great extent, the general tract; and the intervenors seek to include within the survey of the Armijo grant, a portion of the land patented to Ritchie, and thus to be enabled to retain the land occupied by them, either as preemptors or holders of warrants issued by the State for the 500,000 acres donated by Congress, under the Act of Sept. 4, 1841. This grant was presented to the Board of Land Commissioners created under the Act of March 3, 1851, by Archibald C. Ritchie, who The motives which may actuate the intervenhad become interested in the land, and the same ors appealing, or the fact that an inconsiderawas confirmed to him by the Board, and after- ble interest in the grant is represented by them, wards by the district court, and the decree of can have no influence upon the decision of the was confirmed by this court at its December matter presented. The holder of the slightest Term, 1854. 17 How.,525 [58 U. S., XV.,236]. interest, if properly before the court, has the In the following year the four square leagues right to insist upon a fair location of the quanwere surveyed under the directions of the Sur-tity granted, however much such location may veyor General of the United States for Califor- clash with the wishes of his co-owners. nia, and the survey was approved by that officer. In conformity with this survey, a patent was issued by the United States to Ritchie, in January, 1857, and his representatives, heirs or vendees, had been in possession of the premises ever since. In November, 1839, more than two years after the application of Solano to the commanding general, Francisco Armijo also presented a petition to that officer for a grant of a tract of land of about three leagues in extent, known by the name of Tolenas, representing that the land solicited adjoined the Suison tract. The general immediately gave the petitioner per mission to occupy the land thus situated, as it was vacant and was not private property. The order, granting this permission, enjoins upon the petitioner, as a duty, to avoid molesting the Indians or other neighbors; to endeavor to win their confidence, to give information of any attempt at rebellion, and in every case to act in accord with the Chief of the Suison, and directs him to apply with this order to the political authorities for the necessary title papers. Application was, accordingly, made to the prefect of the district, and by him the application was transferred to the Governor of the Department, who, on the 4th of March, 1840, issued to Armijo, a formal grant of the premises. One of the conditions annexed to the grant, provided The intervenors appealing rest their claim principally upon two grounds: 1. Upon the alleged priority of the grant to Armijo; and, 2. Upon the alleged priority of occupation and settlement. The priority of the grant consists only in the date of the former title papers. The grant to Armijo bears date on the 4th day of March, 1840; that to Solano on the 20th of January, 1842. But the rights of Solano are recognized by Armijo in his petition, and in the order of concession by the commanding general, and are especially referred in the formal grant issued by the governor. The concession to Armijo assumes, and correctly assumes, that the land known as Tolenas was vacant and unappropriated. It is clear, therefore, that the political authorities intended that Armijo should take his grant in subordination to the previously existing, or, at least, previously asserted, right of the Indian Chief. There can be no doubt, as observes the district judge, that, under these circumstances, the rights of Solano, according to Mexican usages, would have been recognized as superior to those of Armijo in any contest, notwithstanding the formal title issued first to Armijo. And, as he justly adds, "The archives abound in instances where not only the equity created by a prior occupation and cultivation under a provisional license to occupy, but even that created by a prior solicitation, has been recognized and enforced." This is not all. Where a grant was of a specific quantity within exterior limits embracing a much larger quantity, there was no obligation on the part of the former government, nor is there any obligation on the part of the present government, to allow the quantity to be selected in accordance with the wishes of the grantee. The duty of the government is discharged when the right conferred by the grant to the quantity designated is attached to a specific and defined tract. Under our system the right of the grantee to direct a selection of the quantity granted is admitted, subject only to the restriction that the selection be made in one body, and in a compact form. This right, we say, is admitted, though strictly it is not a right; it is only a privilege given by the generosity of the government. The law of Mexico, as stated by Galvan, was otherwise. It was as follows: "No person, though his grant be older than others, can take possession for himself, or measure, or set limits to his landed property, unless it is done by judicial authority, with the citation of all those who bound upon him; for whatever is done contrary to this will be null, or of no validity or effect." Ordenanzas de tierras y aguas, by Galvan, ed. 1853, p. 185. And to the same purport is the language of this court in the case of Frémont v. U. S., 17 How., 542 [58 U. S., XV., 241]. "Under the Mexican Government," said the court, "the survey was to be made or approved by the officer of the government, and the party was not at liberty to give what form he pleased to the grant. This precaution was necessary, in order to prevent the party from giving it such a form as would be inconvenient to the adjoining public domain and impair its value. The right which the Mexican Government reserved to control this survey passed, with all other public rights, to the United States, and the survey must now be made under the authority of the United States, and in the form and divisions prescribed by law for surveys in California, embracing the entire grant in one tract." The exercise of the right of selection given to the grantee is not permitted by the political authorities, and when a location is subject to the control of the courts is never permitted by them so as to defeat the equitable prior rights of others. 2. The alleged priority of occupation and settlement consists in the fact that Armijo, after obtaining his grant, built a house upon a portion of the land included in the patent to Ritchie, and occupied it. But this fact is met by the further fact that the erection of the house gave rise to a suit between the owners of the two grants as to the boundary between them, which finally led to an arbitration of the matter. The award, as we construe it, fixed the Sierra Madre as the common boundary of their respective claims. The patent of the Suison tract does not embrace any land situated on the Armijo side of this boundary, and cannot, therefore, be justly a ground of objection by the claimants under the Armijo title. The objection that the survey does not locate the land in a compact form cannot be sustained. Compactness of form must depend, in many instances, upon a variety of circumstances; such as the character of the country, its division into different parcels by mountains, rivers, and lakes, and sometimes by the relation of the tract to neighboring grants. In this case, the Tolenas tract is surrounded by three grants, confirmed, surveyed, and patented. The survey is made so as to avoid collision with any of the elder patents, and, under these circumstances, is in reasonable conformity with the decree of confirmation-the only conformity which the law requires. Decree affirmed. Cited 1 Sawy., 580. THE UNITED STATES, Appt., v. JOSEFA MONTALVA DE SERRANO, Widow and Executrix,AND RAMONA SERRANO ET AL., Heirs of LEANDRO SERRANO, Deceased. (See S. C., 5 Wall, 451-462.) Spanish priest has no power to grant lands— only the governor has that authority—permissive possession confers no right or title-holding under license to occupy. Under the Government of Spain, in California the commandante or priest had no authority to grant lands nor to make contracts that could bind the Spanish Government to grant them. The Governors of the country only had this power. A possession, under a simple permission to occupy, could not raise even an equity against the government. Such possession did not bind the Mexican Government, during its dominion in California, from 1823 to 1846. Where Spain and Mexico never granted the land tion to grant it, the claim to it has no validity as nor contracted to grant it, nor were under obligaagainst the United States. Where there was no adverse holding, but the posthe proprietary interest of Spain and Mexico; the session was a permissive one and consistent with fact that those governments did not terminate the possession, which was a mere tenancy at will, cannot create an equity entitled to confirmation. Where one held under a license to occupy which could be revoked at any time, the failure to revoke it cannot change the original character of the possession into an adverse one. Argued Feb. 14, 1866. Decided Jan. 28, 1867. [No. 66.] APPEAL from the District Court of the Unit ed States for the Southern District of Cal ifornia. The appellees filed their petition before the Board of California Land Commissioners, asking the confirmation of their title to a certain tract of land. The commissioners rejected the claim, and the claimants appealed to the district court. Further evidence was taken, and that court reversed the decree of the commissioners and confirmed the claim. The United States appealed to this court. The case further appears in the opinion. Messrs. James Speed, Henry Stanbery, AttyGen., Jeremiah S. Black, and J. A. Wills, for the appellant: There is no archive evidence of the existence of the grant. This claim must, therefore, be rejected on the authority of a long line of cases more recently affirmed in the cases of U. S. v. Castro, 24 How.,346 (65 U. S., XVI., 659); Romero v. U. S., 1 Wall., 721 (68 U. S., XVII., 627); White v. U. S., 1 Wall., 660-682 (66 U. S., XVII., 698-702); Pico v. U. S., 2 Wall., 281, 282 (69 U. S., XVII., 857). All the evidence in this case of the source of Serrano's title and of the boundaries of his claim and possession, with three exceptions, is derived directly or indirectly from Serrano himself. The Mission, San Luis Rey, of which Serrano was the major domo, had no title, and consequently could give no binding title or posses sion. U. S. v. Ritchie, 17 How., 540 (58 U. S., XV., 240); U. 8. v. Cruz Cervantes, 18 How., 553 (59 U. S., XV., 484); Nobili v. Redman, 6 Cal., 225. The result is, that Serrano was a mere squatter on public land under the law of Mexico, and such was his real status under the law of the United States. The vagueness, indefiniteness and unsubstantial character of this claim is shown by its elasticity, both as regards quantity and locality. There being no petition to the Governor of California for a grant, no diseño, no report, no concession, no titulo, there is nothing to fix this claim, either as to quantity or locality. That Serrano had a house and vineyard near the Tenescal, acquired in the way that we have already seen, is beyond all doubt. But what was the extent of his actual possession? According to Wilson's testimony, it never exceeded about fifteen acres. He had but few cattle and horses, and no sheep from 1842 to 1847. In 1845, according to Rubideaux, he had but few cattle-" 100 or so." Messrs. Isaac Hartman, Edmond L. Goold and C. Cole, for appellees: It is an undisputed fact in this case, that Leandro Serrano, the testator of the claimant, was in the actual, continued and exclusive possession of the rancho de Tenescal from the year 1818 or 1819 till his death in 1855; since when his widow, the claimant, has continued in possession of it to the present time. It is further shown by the testimony, that Serrano, in 1819, was past middle age, having been, since early youth, a soldier in the service of Spain; that in 1818 or 1819 he was placed in possession of the rancho by the military commandant at San Diego and the priest of the Mission of San Luis Rey, and that he immediately commenced building and planting upon a portion of the land, and using the balance for grazing his cattle, sheep and horses; that his Occupation from that period to the present time has been continued, exclusive and notorious, his boundaries well defined by natural objects, and his rights respected by his neighbors and by the Mexican authorities, as shown by affirmative acts. The facts of the case present an equitable title, devested of even the suspicion of fraud, possessing infinitely more merit than the most perfect paper title with diseño, grant and departmental confirmation all complete, if unaccompanied by these acts; occupation and improvement, forming the real consideration for such a grant. The Spanish law of prescription is laid down in 2 Escriche, 741, 742, tit. Prescription de Dominio. I will only specially call the attention of the court to those provisions which define a possession of twenty years, without title, but in good faith, induced by the acts of others, with the knowledge of the proprietor, to be good as a prescription, even against the absent, and ten years against the present; and continuous pos session of thirty years, however acquired, without suit brought against it, to constitute a prescription,even if it were acquired by violence or robbery; good faith not being exacted in a prescription of thirty years. Siete Partidas, title 29, L. 18, 19; see Moreau & Carleton's Translations, Vol. I., pp. 382, 383; Feb. Mejicano, Vol. I., lib. 2, cap. 2, sec. 41 to 45. By the Spanish law, prescription of forty years is good against the King. The Recopilacion, lib, 4, title 16; The Laws of Toro (which is law 1, title 7, lib. 5, of this Recopilacion); White, Recop., 95; Lewis v. San Antonio, 7 Tex., 288, where the above law is cited; Landry v. Martin, 15 La., 1; Strother v. Lucas, 12 Pet., 410. In Barclay v. Howard's Lessee, 6 Pet., 498, the Supreme Court of the United States held that an uninterrupted possession for thirty years would authorize the presumption of a grant. Herndon v. Cassiano, 7 Tex., 322; New Orleans v. U. S.,10 Pet.,734; U.S. v. Castro, 1 Hoffm., 125. I have found in Rockwell's Spanish and Mexican Law, 444, App., No. 1, some extracts from the "Instructions to be observed by the commandant appointed to the new establishment of of San Diego and Monterey," dated Mexico, August 17, 1773. See Halleck, Rep., Cal. Correspondence, 119, where these instructions of the Viceroy are also to be found. The Supreme Court, 6 Pet., 714. 716, says "By the laws of Spain, is to be understood the will of the King, expressed in his orders or by his authority evidenced by the acts themselves, or by such usages and customs in the Province as may be presumed to have emanated from the King, or to have been sanctioned by him as existing, authorized local laws." Again,8 Pet., 436; 19 How.,347 (60 U. S., XVI., 680)," The public acts of public officers of the Spanish Government will not be presumed to be usurped." Military service being the foundation of the grant, the royal order is referred to only as showing a favorable intention towards the petitioner, but not as a limitation. U. S. v. Percheman, 7 Pet., 96; 12 Pet., 437. The general rule with regard to prescriptive claims is, that every such claim is good, if, by possibility, it might have had a legal commencement. 1 T. R., 667; 11 East, 284; case of Goodtitle, Lessee of Parker v. Baldwin, 11 East, 490, original edition; 6 East, 234, new ed; Cowp.. 102, 216; Gayetty v. Bethune, 14 Mass., 49; Kirk v. Smith, 9 Wheat., 241; Rowland v. Wolf, Bailey, 56; Hogg v. Gill, 1 McMullan, 329; Mitchell v. U. S., 9 Pet., 759. The Supreme Court has also uniformly held that the term "grant" in a treaty comprehends not only those which are made in form, but also any concession, warrant, or permission to sur- | and from 1818 to 1863 he and his children have vey, possess or settle, whether evidenced by lived there, cultivated, gathered their harvests, writing or parol, or presumed from possession. and herded their stock upon it without any ad8 Pet., 466, 467, 152, 170; 10 Pet., 331, 340, verse claim or prohibition having been whis718; 12 Pet., 436. pered by either the government or any private person, until long after the acquisition of the country by the Americans. And that in the term "laws" is included custom and usage when once settled, though of recent date. 9 Wh., 585. Serrano continued in the undisturbed and undisputed possession of the land during the whole period of Mexican sovereignty in California, from the Revolution of 1822 until the acquisition of the United States in 1846. His possession and occupation were notorious. It is shown to have been known especially to Governor Micheltorena, and to Governor Pico; also to Arguello, the subsequent commandant, and to Cota, the alcalde of the district. More than that Mich eltorena recognized his rancho by name, and made it the boundary on one side of the Rancho de Laguna de la Temecula, as appears in the informe and in the grant of that rancho. It may well be claimed by such affirmative acts of recognition, coupled with the tacit permission of twenty-four years, that the Mexican Government was estopped from denying the title of Serrano; if so, then the American Government is equally estopped from denying the title. U. S. v. Alviso, 23 How., 318 (64 U. S., XVI., 456). Recitals in the deed or patent are evidence against the grantors and those claiming under them by subsequent conveyance. Penrose v. Griffith, 4 Binn., 238, 327; 4 Pet., 481. The Commonwealth is estopped by a grant from setting up alienage of the heirs of the grantee as a ground for escheat. Commonwealth v. Heirs of Andre, 3 Pick., 224. See Domat, 805, Laws, 2030, as to the effect of the mention of one act in another. "If there are several accordant recognitions, and some or even one of them is ancient and supported by possession, they may be equivalent to the original title and excuse its non-production, more particularly when the original title is extremely ancient." 1 Poth. Obl., 385, 386; Marg. 743. "A treaty, recognizing a reservation in favor of the Indians, has the full effect of a grant.' U. S. v. Brooks, 10 How., 442. "We have presented a claim which has rip ened into a title strictly legal, possessing, as the claimant does, such a mass of equities to sus tain her claim for a decree of confirmation." Mitchell v. U. S., 9 Pet., 773; Strother v. Lucas, 12 Pet., 446, 447; U. S. v. Alviso, 23 How., 318 (64 U. S., XVI., 456); U. S. v. De Haro's Heirs, 22 How., 293 (63 U. S., XVI., 343); U. S. v. Wilson, 1 Black, 267 (66 U. S., XVII., 142). Taking any view of this case, it presents a stronger equitable title than any of the reported cases. Starting out with the performance of meritorious services to the Spanish Government, of the kind most specially favored by its policy and legislation, the possession of Serrano was conceded by authority, real or apparent, as a reward for those services. Immediately upon his occupation, he commenced building, planting vineyards, and placing cattle upon the land, Boundaries and the extent of occupation by Serrano. By a reference to any of the larger maps on file, it will be observed that the tract of land thereon delineated forms an irregular square, very nearly, if not entirely surrounded by mountains and high hills. These maps are proven by almost any number of witnesses, to present & perfect topographical sketch of the locality. Mr. Justice Davis delivered the opinion of the court: The court below confirmed the claim of the appellees to the rancho known as "Temescal,” embracing five leagues, and situated in the County of San Bernardino. It is insisted by the United States that this judgment was wrong, because Leandro Serrano, under whom the appellees claim, had no title, legal or equitable, to the land in controversy. It can serve no useful purpose to review the voluminous testimony in the record, for there is no substantial difference in it on any point material to the decision of the cause, and hardly any portion of it but what can be readily reconciled. It is clear that Serrano occupied a portion of the property which was confirmed to his widow aud heirs continuously, from 1818 or 1819 until his death, which occurred in 1852. The improvements on the place consisted of two or three adobe houses, a small vineyard and fruit orchard, and a few acres in actual cultivation. At different periods of his occupancy he was the owner of cattle, sheep and horses, which subsisted on the uninclosed valleys and hills that surrounded his residence. That his possession and occupation were undisturbed and undisputed during the whole period of Mexican sovereignty in California until our acquisition of the country, is fully established. It is not so easy to determine the extent of his possession, but in the view we take of the case, the question is unimportant. The petition presented to the Board of Land Commissioners asked for the confirmation of this claim on two grounds,-first, because a provisional grant was made; and, second, by virtue of long-continued and uninterrupted possession. The proof not only negatives the existence of a grant, but clearly shows that Serrano occupied the premises by a written permission from the priest of the mission, or the commandante of San Diego, or from both conjointly. The only witness who pretends ever to have seen a paper concerning a grant was Villia, an ignorant man, unable to write, with very little knowledge of reading, and who, on being shown some writing, in order to test his ability to read, was unable to tell what it was. It is impossible to escape the conclusion that this witness was mistaken, without discrediting all the remaining evidence, including the repeated declarations of Serrano that he had no title. Villia evidently saw a paper in the hands of Serrano in relation to this land, but it was not a title of concession by Governor Sala, but the written |