Opinion of the Court. and upon the Mexican law and regulations and conduct of Spanish and Mexican officials, which were limited to particular localities, and which have no application to the Spanish law as it appears in the Recopilacion, its opinion yet contained a copious historical review of the Spanish and Mexican law on the subject of grants to towns. From the fact that both the early Spanish law and the Mexican law were considered, and growing out of some forms of expression contained in the opinion, it has sometimes been said, with inaccuracy, that the opinion sanctioned the proposition that every Spanish town, considering the Spanish law to which reference has been made, was entitled to a grant of four square leagues. The want of foundation for this often reiterated misconception of the finding of the board of commissioners will be at once shown by a brief consideration of the instructions and documents, apart from the text of the Recopilacion itself, upon which the board acted. They were five in number, as follows: (1.) Instructions, etc., of Don Antonio Bucareli Urusu, dated Mexico, August 17, 1773. (Dwinelle, App. p. 2; 1 Rockwell, 444.) (2.) Regulations of Don Felipe de Neve, approved by the King, October 24, 1781. (Dwinelle, App. p. 3; 1 Rockwell, 445.) (3.) Instructions made for the establishment of the new town of Pitic, dated Chihuahua, November 14, 1789. (Dwinelle, App. p. 11.) (4.) Decree of Don Pedro de Nerva, dated Chihuahua, March (October) 22, 1791. (Dwinelle, App. 17; 1 Rockwell, 451), and (5.) Opinion of the assessor or legal adviser of that comandacia, dated in 1785. Document No. 1 makes no reference to a designation or granting of lands for the use of pueblos. No. 2- to wit, Regulations of 1781 for the government of the Province of California- referred to the existence of the new establishments of the presidios and the respective ports of San Diego, Monterey and San Francisco, and the founding and building of the pueblo of San José, and prescribes certain Opinion of the Court. regulations for carrying into effect the expected establishment of proposed new settlements. These regulations rested undoubtedly on the laws of the Indies, but make material additions and modifications thereto. Section 4 provides that conformably to the provisions of the laws of the kingdom competent common lands shall be "designated" for the pueblos, but there is no statement as to the law governing the quantity of land to be marked out. The regulations, however, were specially approved by the King of Spain. No. 3 the Plan of Pitic- - commences with the following statement: "Instructions approved by His Majesty, and made for the establishing of the new town of Pitic, in the Province of Sonora, ordered to be adopted by the other new projected settlements (Poblaciones) and by those that may be established in the district of this General Comandancia."" The second section of the instruction reads as follows: "2d. In conformity with the decree of the law 6th, title 5th, of the same book 4th, relative to the towns of Spaniards that may be founded by agreement or contract, and first in relation to those which for want of contractors shall be erected by private settlers (Pobladores) who may establish themselves and agree to found them, there may be granted to the town in question four leagues of bounds or territory in a square or in length, (que se fundaren y concordaren enformarlas se podrá conceder á la de que se exara quatro leguas determino ó territorio en quadro ó prolongado,) as shall be adapted to the better location of the land that shall be selected or marked out so that its true boundaries shall be known, wherein there can be no inconvenience, and, inasmuch as it is distant more than five leagues from any other town, city or village of Spaniards, there shall not result injury to any private individual, nor to any 'pueblo' of Indians, on account of that (the village) 'de los Seris' remaining within the demarcation as part or suburb of the new settlement, subject to its jurisdiction, and with the advantage of enjoying as neighbors the same benefits public and common that the settlers may have, and of which at present those same natives are wanting, owing to their indo Opinion of the Court. lence, their default of application, and of intelligence, reserving to them the faculty of choosing their 'Alcaldes and Regidores,' with the jurisdiction, economy and other circumstances prescribed by the laws 15 and 16, title 5, book 6." It is obvious from the most casual examination of this section that it not only does not support the theory that under the Recopilacion the right to four square leagues was granted to each and every settlement, but, on the contrary, that its plain purpose was simply to grant the discretionary power to allot four square leagues to settlements not under contract. and to exempt such grants from many requirements of the Recopilacion, such as that as to the number of residents and the conditions to be performed on the part of the founder of the settlement. In other words, this decree, which was approved by the King of Spain, was substantially an act of new and supplementary legislation, adding to the provisions of the Recopilacion, and conferring rights not covered by its text. The fact of the making of this decree conveying the authority to give four square leagues in cases where there was no contract, demonstrates of course that the power thus given was not deemed theretofore to have existed by the specific terms. of laws specially applicable to town settlements. For how can it be supposed that a solemn order would have been required from the King to sanction the doing of that which the law already expressly permitted. It is to be observed, also, that the delegation of power to make a grant of four square leagues in cases of non-contract does not import the significance that by operation of law such a grant. was made in every case. The language is, there "may be" granted to the town in question, not that there "shall be" granted in every case, or that the governor "shall be" obliged to do so. No. 4 the Decree of Pedro de Nerva, under date of October 22, 1791-refers to an opinion of an official styled the assessor of the comandancia general. The portion of the decree having pertinency here reads as follows: "And considering the extent of four common leagues measured from the centre of the presidio square, viz., two leagues Opinion of the Court. in every direction, to be sufficient for the new pueblos to be formed under the protection of said presidios, (que van formandose á su abrigo) I have likewise determined, in order to avoid doubts and disputes in the future, that said captains restrict themselves henceforward to the quantity of house-lots and lands within the four leagues already mentioned, without exceeding in any manner said limits, leaving free and open the exclusive jurisdiction belonging to the intendentes of the royal hacienda, respecting the sale, composition and distribution of the remainder of the land in the respective districts." The language of this decree, instead of confirming the theory that every town was entitled to four square leagues under the law of Spain, on the contrary, would seem to indicate that De Nerva considered that the extent of the boundaries of the new pueblos should be subject to his uncontrolled discretion. Indeed, in Welch v. Sullivan, 8 California, 165, this decree was interpreted as largely extending the limits of pueblos beyond four square leagues. No. 5 the opinion of one Galindo Nevara — is printed on pages 10 and 11 of the appendix to Dwinelle's work, and is treated as the opinion cited in De Nerva's decree of October 22, 1791. It was addressed to the honorable commandant general, and is dated October 27, 1785. It considers the question of the right to make requested allotments of lands for cattle ranches, and in the course of the document the writer observes that such allotments should not be made within the boundaries assigned to pueblos, which, in conformity to law 6, title 5, lib. c. 4, of the Recopilacion, must be four leagues of land in a square or oblong body according to the nature of the ground. This cannot be the opinion to which De Nerva referred in 1791, for the one to which he alludes related to the authority which was possessed over the distribution of lands of a presidio. Nor can this mere opinion, if authentic, be considered as conclusive, or even as persuasively determining the meaning of law 6, since it cannot be reconciled with the subsequent decree of 1791, declaring that, "in order to avoid doubts and disputes in future," it was necessary to specify the precise quantity of land to constitute the limits of the Opinion of the Court. pueblos to be subsequently established. The inference to be deduced from all these documents supports the theory that under the Spanish laws, as found in the Recopilacion, all towns were not entitled by operation of law to four square leagues, but that at a late date the Spanish officials had adopted the theory that four square leagues was the normal quantity which might be designated as the limits of new pueblos to be thereafter created. Whether from these amendments or supplements to the Spanish law it was correctly held that a fixed quantity of land passed to every new pueblo by effect of law, is not relevant to the matter now under consideration, as the rights of Santa Fé, if any, arose long prior to the period to which these documents relate, and depend upon the Spanish law and that law exclusively. It would seem, however, from the statement of Hall, already quoted, supra, that the implication that every new Mexican town was entitled to four square leagues was a misconception. This review has been made in order, at the outset, to remove the erroneous conception which has been so often reiterated, as to the right of towns, by mere operation of law, under the Spanish law, to four square leagues. It is really unnecessary, however, to analyze the opinion of the board of land commissioners for the purpose of showing that no recognition of a right, by operation of law, to four square leagues was contained in it, for the reason that it is obvious that the decision of the board confirming only a portion of the claim of the city of San Francisco was a rejection of the four square league theory. That San Francisco so interpreted the decree is manifested by the fact that it was not accepted by that city as final, but an appeal was taken to the District Court, to which court also the United States appealed. Moreover, the action of Congress in confirming, in 1864, under certain conditions, a limited right in favor of San Francisco, and its final action, in 1866, in confirming the right of that city to four square leagues, with many important reservations, and upon conditions wholly incompatible with the existence, in that city, of a primordial right to four square leagues, amounted to a refusal by Congress to recognize the theory that every |