granted upon a petition filed after the close of the term at which said decree was rendered, "and the court had no jurisdiction of said cause," and that patent should issue under section 2447 of the Revised Statutes.

If the application was granted, patent could not issue under the statute relied upon by the claimants, as said section 2447 only provides for the issuance of a patent where a claim to land has been confirmed by law, "and in which no provision is made by the confirmatory statute for the issue of a patent."

The act of March 3, 1851 (9 Stat., 631), provides that—

For all claims finally confirmed by the said commissioners, or by the said district or Supreme Court, a patent shall issue to the claimant upon his presenting to the General Land Office an authentic certificate of such confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor-general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same.

It will be seen from the statute last quoted that ample provision for the survey and issuance of patent in case of private claims is made by law, but that the right to demand such survey only inheres in the claimant from the time when a final decree of confirmation is obtained.

In this case no such final decree was obtained, and no action can be taken by the Department under the proceedings had before the Board of Commissioners and in the district court, unless the order setting aside the decree of confirmation and granting a new trial is ignored.

The claimant, having failed in the court to obtain an order reinstating the decree of confirmation and vacating the order setting the same aside, abandons the right allowed by the court to proceed with the proofs, and after a lapse of twenty years applies for a privilege which in effect calls upon the Department to grant a right denied by the court. The general rule that the judgment of a court cannot be attacked in a collateral proceeding would seem to effectually dispose of the argument adduced on behalf of the application. It is proper to add, however, that there is no such affirmative showing in the record of the court proceedings as would of necessity imply a want of jurisdiction; and in the absence of such showing the jurisdiction of the court must be conclusively presumed.

Your decision is therefore affirmed.

OFFICIAL SURVEY—BOUNDARIES-MEASUREMENTS—QUANTITY.

RANCHO BUENA VISTA.

Survey of a private claim, approved by the surveyor-general, becomes the official survey, and must be proceeded on in determining the location.

Permanent measurements and natural objects named as boundaries control mention of courses, distances, and quantity.

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Where confirmation of a private land claim was "to the extent of one-half of a square league of land, a little more or less * bounded and described as follows," the boundaries designated will control the location.

Commissioner McFarland to surveyor-general, San Francisco, May 27, 1884.

SIR Upon examination of the case, in the matter of the survey of the California private land claim, Rancho Buena Vista, Jesus Machado confirmee, it appears that an Indian named Felipe, a native of the Mission San Luis Rey, now in San Diego County, petitioned the Mexican governor, Pio Pico, on the 14th of April, 1845, for the grant of a piece of land which he had had in possession since 1836, estimated as of half a league in length and the same in breadth.

The petition was referred to the administration of the mission, which made a report favoring the grant, and on the 17th of June, 1845, an informal grant was made by the governor for the land asked for, and after its approval by the committee on vacant lands of the assembly, a formal grant was issued to the petitioner, dated July 8, 1845, for "the mentioned land"—" of the extent of half a square league," not describing it by boundaries, but directing juridical possession to be given.

This proceeding took place on the 4th of August, 1845. The measurement was commenced "at one of the boundaries of the garden of the Indian Felipe," at the northwest corner of the tract measured; from thence they measured east 2,500 varas "to the boundary of Don Lorenzo Soto; then in a south course 2,500 varas, ending "at a small peak, where stand two rocks joined together"; thence on a course west, 2,500 varas, "to a small red hill"; thence north 2,500 varas, "which ended upon a hill where there stands a large rock."

The claim was presented to the Board of Land Commissioners, in the name of Jesus Machado, claiming as purchaser of the Mexican title, on the 24th of February, 1853, and was confirmed by the Board, May 16, 1853, by the boundaries designated in the act of juridical possession.

On appeal from the decree of the Board to the United States district court for the southern district of California, the court, on the 1st day of February, 1856, delivered its opinion affirming said decree; but neg. lected to enter and sign a decree of affirmance. Appeal, however, was taken from the district to the Supreme Court of the United States, and was afterwards dismissed by direction of the Attorney-General of the United States; and upon such dismissal, on the 24th of February, 1857, a decree was made by said district court, rendering the confirmation

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final, and allowing the claimant to proceed thereon as upon a final decree.

Afterwards, the jurisdiction, records, and pending matters of the district court for said southern district, having been by law transferred to the United States district court for the district of California, said lastmentioned court, on the 14th of April, 1879, made and entered a decree, as of the 1st day of February 1856, affirming in all things the decree of the Board of Land Commissioners, and confirming to the claimant the tract in question.

"To the extent of one half of a square league of land, a little more or less, being the same land which is situated in the county of San Diego known by the name of Buena Vista, and bounded and described as follows:

"Commencing at the northwest corner of the garden of the Indian Felipe and running east two thousand and five hundred varas to the boundary line of Lorenzo Soto; thence running south two thousand five hundred varas to a small peak, where stand two rocks joined together; thence running west two thousand five hundred varas to a small red hill; thence running north two thousand five hundred varas to the place of beginning, on a hill where there is a rock; containing in all one-half of a square league. Reference for further description to be had to the original grant and to the translation of the original record of juridical possession."

A survey of the confirmed claim was made by United States Deputy Surveyor J. C. Hays, in September, 1858. 1t locates the tract by rectangular lines; the side lines being 165 chains in length and varying 194 degrees from a north and south line, and the end lines 134.49 chains in length, with corresponding variation from an east and west line, giv ing an area of 2,219,8 acres, 2 of an acre less than half a league.

This survey was approved by Surveyor-General Manderville, October 19, 1858, and thus became the official survey of the claim; but it seems to have been mislaid and not recognized as such until the attention of this office was called to it by Surveyor-General Wagner, in a letter of December 29, 1881. In the mean time a survey had been made by United States Deputy Surveyor Max Strobel in September, 1868; and another by United States Deputy Surveyor Goldsworthy in 1875, made in connection with the subdivision of the township. The Strobél survey was made under direction of Surveyor-General Day, and was approved by him March 25, 1870.

June 3, 1882, this office directed the surveyor-general to transmit for inspection a tracing of the Hays survey; and it being found on examination to have been approved by Surveyor-General Mandeville, as above, you were instructed by letter of this office of April 9, 1883, to publish the Hays survey as required by the act of July 1, 1864 (13 Stat., 332), and thereupon to make the usual return to this office. Your letter of April 29 ultimo and accompanying papers show compliance with this instruction, and bring the Hays survey before me for examination.

Neither the plat nor the descriptive notes of Hays's survey identify

any of the boundaries named in the decree of confirmation, except the "small red hill," a mound on the top of which he makes his southwest corner. The surveys and examinations subsequently made show that, taking the location of this corner as being correctly made and described, his survey would not be greatly inaccurate.

He has, however, connected his survey with the township line between ranges 3 and 4 west, which appears to have been the only line of the public surveys which then intersected the tract surveyed, but, as shown by the subsequent surveys, the connection as made is grossly erroneous, inasmuch as it throws the platted tract more than a mile too far east upon the plats of the public surveys.

The survey of Strobel does not identify the boundaries designated in the confirmation, except that at the northwest corner, the description of which in his field notes corresponds with that in the confirmation, namely, "on a hill where there is a rock"-"big rock," the field notes have it.

It is stated in one of your two letters of April 29 ultimo that a survey of the Buena Vista Rancho was made by United States Deputy Surveyor William Minto in 1882. This survey has not been returned nor before reported to this office, and it does not appear under what circumstances it was executed; but the sketch which you forward shows it to correspond, nearly, as to the southwest corner with that of Hays (his erroneous connection with the public surveys being corrected, as shown on said sketch), and, as to the northwest corner, with that corner as located by Strobel. The north and south lines differ somewhat in measurement with those of Hays and Strobel, but give, apparently, about the same area, and correspond in outline more nearly with the survey of Goldsworthy.

Permanent monuments and natural objects named as boundaries in ordinary conveyances control mention of courses, distances, and quantity (Greenleaf's Ev., Vol. 1, p. 301, note 2, quoting 19 Johns, 449), and this rule applies to confirmations like that in question, unless the intention to limit the quantity within the boundaries is clearly shown.

The claim in the present case was confirmed by the boundaries set forth in the decree, being the same designated in the act of juridical possession, and was for the land included within said boundaries. The clause following the specification of boundaries-" containing in all onehalf of a square league of land "-is clearly an estimate merely, and not intended as a limitation of quantity within the boundaries. The measurements mentioned are only the estimated distances between the boundaries forming the corners of the tract. This is manifest from the declaration in the confirmatory clause of the decree, "that the said claim be, and the same is hereby, confirmed to the extent of one-half of a square league of land, a little more or less, bounded and described as

follows."

The Hays survey is rejected for the erroneous connections in its plat

and descriptive notes, and for the further reason that it identifies and conforms to but one of the boundary calls-that which is made the southwest corner-and a new survey is hereby directed to be made to conform to the described boundaries as nearly as practicable. It should adopt the northwest corner as located by Strobel, "on a hill where is a big rock"; the southwest corner, as described by Hays and located by Minto, on top of a red hill; and it would seem that the southeast corner, "a small peak, where stand two rocks joined together," might be found and identified by the description thereof given.

The northeast corner boundary, as described in the juridical possession and confirmation, "the boundary line of Lorenzo Soto," may not, at present, be definitely ascertainable from monuments or marks upon the ground. The grant of Los Vallecitos de San Marcos, which was confirmed to Soto for two square leagues, had larger exterior boundaries; but the boundary on the west was not definitely described. By the final location of the two leagues tract within the exterior boundaries its nearest point to the Rancho Buena Vista, as surveyed, is some 24 miles south from the northeast corner, and about three-fourths of a mile southeast from the southeast corner. The northwest corner of the tract of Buena Vista in question being ascertained, the northeast corner, in the absence of original landmarks or monuments, can be at least approximately established by measuring from said northwest corner, upon the proper course, the prescribed distance.

It is important, as you suggest, that the public surveys should be properly corrected with the lines of the private claim; but the location. of the latter must first be finally determined.

You are therefore instructed to cause a plat of said Rancho Buena Vista to be compiled, or, if necessary, a new survey of the same made upon the ground, conforming the lines thereof to the northwest and southwest corners above indicated; the southeast corner to be ascer tained and located from the description given, "a small peak where are two rocks joined together," as nearly as practicable, and the northeast corner, in the absence of original marks or monuments from which its location can be identified, to be determined by measurement, on the proper course, from the northwest corner, a distance equivalent to the 2,500 varas specified in the confirmation.

If the survey of Deputy Minto was made under authority of your office and with the requisite formalities and details, and conforms substantially to the conditions herein prescribed, it may be taken or fol lowed in preparing the survey here directed.

You will please give notice to the parties interested, or their attorneys, of this decision, informing them also of their right of appeal, and advise this office of the date and manner of service of said notice; and, if appeal be not taken within the time allowed by the rules, prepare and forward the survey herein directed to this office as soon as practicable. If found correct you will be authorized to contract for connecting the lines of the public surveys therewith.

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