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being made, respectively, on the 29th day of April, 1869, and the 13th of October, 1869, and the 6th day of January, 1870. "That each of the four reports of said commissioners was thereupon filed with the Secretary of the Interior, and he thereupon recommended the acceptance of the same, and the issue of the bonds and patents for lands due on account of said sections of road, agreeably to the provisions of said Pacific Railroad acts; and thereupon the President of the United States approved the same, and ordered the Secretary of the Interior and the Secretary of the Treasury to carry the said recommendation into effect, the first of which approvals by the President of the United States was made on the 4th day of December, 1866, and the last on the 21st day of January, 1870. That the four sections above mentioned comprise the whole of said road, from the city of San José to the city of Sacramento. That said road has been in full operation and has been operated for the transportation of passengers and freight since the 9th day of June, A.D. 1869.

"18. That thereafter there was issued, on the 23d day of November, 1875, to said Central Pacific Railroad Company (?), under the signature of the President of the United States, attested by the recorder of the General Land Office, and under the seal of the General Land Office, what purported to be, and in form was, a patent.

"That the patent was in the usual form of the patents issued by the United States to the several railroad companies, under and in pursuance of said Pacific Railroad acts of Congress.

"19. That said patent described and purported to convey to said railroad company the several tracts of land mentioned and described in said bill of complaint.

"20. That all of said lands described in the bill of complaint herein are opposite to, and within the 25-mile limits on each side of, the route or line of said railroad company's road, as laid down on the map filed by said Central Pacific Railroad Company of California in the Department of the Interior on the 8th day of December, 1864."

Besides these admissions a large amount of evidence was

Opinion of the Court.

taken in the case, and a final hearing was had before the court below in November term, 1886, and a decree was made dismissing the bill of complaint.

The court, in its opinion, held, amongst other things:

1. That the map of the route of the Western Division of the Central Pacific Railroad of California, filed with the Secretary of the Interior December 8, 1864, is the map of the general route, and not of the line as "definitely fixed," within the meaning of the land-grant act of 1862.

2. That the map of the route of said road as finally located and constructed, filed with the Secretary of the Interior February 1, 1870, and accepted as such by that officer, is the map of definite location.

3. That the Moquelamos grant was finally rejected February 13, 1865, after which the lands within the exterior boundaries of the grant ceased to be sub judice and became public lands, to the odd sections of which, within twenty miles of the line of the road, the right of the railroad company attached, and became indefeasible, immediately upon the filing of the map of definite location of the road, and the acceptance thereof as such by the Secretary of the Interior.

4. That as, from the year 1855, the land between the Moquelamos and Calaveras rivers, east of the range (or meridian) line between ranges 7 and 8, was treated by the government as lying outside of the Moquelamos grant claim, and as being public land, by running the section lines and filing plats of survey, and selling some of the lands, and opening the others to private entry, etc., the government should be held in a court of equity to be estopped as against the grantees of the patentee from now alleging that those lands are within the boundaries of the claim.

5. That the withdrawal of the lands upon filing the map of the general route of the road, for twenty-five miles on each side of the line indicated, protected the lands against the attaching of any other right as against the railroad company until the filing of the map of definite location.

Without expressing, at present, any opinion on the conclusions thus reached by the Circuit Court, we will proceed to

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examine, 1st, Whether the land in question was actually within the outside limits of the pretended Moquelamos grant? If it was, and if the title of the railroad company accrued whilst the grant was under judicial examination, we will inquire, 2dly, Whether, for that reason, the railroad grant was prevented from taking effect within the said outside limits?

The defendants adduced evidence to show that the greater part of the lands in question were not embraced within the limits of the grant. Those limits are fairly well defined on three sides; the northern boundary being the Moquelamos or Moquelumne River; the southern the lands of Mr. Gulnak. (being the "Campo de los Franceses;") and the western being the "estuaries of the shore," or the marshes bordering on the San Joaquin River, not very clearly defined in outline, but sufficiently so to serve as a boundary. On the east side, the supposed grant is bounded "con la sierra immediata;""by the adjacent ridge of mountains" or "by the adjacent sierra. This is interpreted as meaning to exclude the sierra itself; in other words the grant extends, according to its terms, to the commencement of the mountain or sierra.

One of the witnesses, R. C. Hopkins, who had been employed by the government for more than thirty years in the Surveyor General's office in California, in connection with the Spanish land grants, making translations and testifying in the courts, was asked to translate the descriptive portion of the Moquelamos grant, which he did as follows: "Eleven square leagues on the Moquelamos River, which bounds on the north with the southern shore of the said river, on the east with the contiguous sierras, on the south with the lands of Mr. Gulnak, and on the west with the estuaries of the beach." He further testified that when "sierra immediata" is called for as a boundary, the "sierras" are excluded.

Now, if there were any mountain ridge or sierra in the neighborhood of the other boundaries called for, lying to the eastward, and in the vicinity of the Gulnak track, the solution would be easy. But the Sierra Nevada is the only mountain in that direction, and that is sixty or seventy miles east of the line of the railroad, and still farther from the marshes of

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an

the beach forming the western boundary of the grant, extent which would give a total area of over eighty square leagues. The defendants contend that such an extension of the outside boundaries of the grant (supposing it to have been a real grant) cannot be presumed to have been in the minds of the parties; and they produce evidence to show that, starting from the marshes on the west, and proceeding eastwardly between the Gulnak tract and the Moquelumne River, the land is level valley land as far as the "Jack Tone road," (which runs north and south on the range line between ranges 7 and 8 east, about seven miles east of the railroad;) and that beyond this road the lands are hilly, covered with timber and brush, and gradually increase in altitude above the sea-level up to the Sierra Nevada itself, becoming more broken and precipitous as we proceed.

As an example of this evidence, the testimony of Edward E. Tucker, an experienced surveyor in that country, and official surveyor of San Joaquin County, may be referred to. Amongst other things he says:

"I will say that from a line east of what is called the Jack Tone road an irregular line about, well, I suppose, averaging say two miles east of the road, some places it comes within three-quarters of a mile of the Jack Tone road, and at other places it is two or three miles from it the ground becomes more or less broken and hilly, and in some places there are well-defined hills, and in other places it is what would be designated, I suppose, rolling land; but the general character of the country from the point I have designated, east, between the Moquelumne and Calaveras rivers, is irregular. It is up and down and generally rising; that is to say, the farther east a person goes the higher the hills become and the more irregular they are until the county line is reached. There are a number of places where there are quite high hills, and some deep elevations, and other places where perhaps a whole section would be what we call rolling land. There are no very steep hills or very high hills in a particular section, but it is what I would call, generally speaking, hilly land, the whole of it, and a rising tendency going towards the east.

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There are a great many sections and quarter sections that I could locate from memoranda that I have in my book, hills, I could designate particularly, quarter sections, if required, but generally from that line indicated, east, the country is hilly. Q. 50. What can you say generally with reference to the elevation of the country going east from the line indicated by you as marking the division line between the plane land and the well-defined hills near the Jack Tone road, and between the Moquelumne and Calaveras rivers? A. The country as I described it before-some of it is rolling, some rough, hilly and broken; but it is all gradually, and some very rapidly ascending. It is constantly ascending; that is, the hills, as you go east, are higher than they keep getting

higher as you go east. Q. 54. In your opinion as a surveyor and civil engineer where, with reference to the tract of country between the Calaveras and Moquelumne rivers, does the Sierra Nevada range of mountains begin as a range or system? A. In my opinion a range of mountains begins - what you might properly call the base of the mountains, on the plains where the land commences to go up regularly, and the hills are well defined - what are generally called foot-hills of the mountains; and in this instance I think the mountains begin where I have drawn that heavy red line on this diagram, Exhibit 18. I, of course, want it understood that I am not stating that those are mountains down there. I do not claim that they are mountains. I claim that they are well-defined hills, and that they are regular from there east. They run right into the mountains and there is no way of drawing a line from them mountains east without going over hills; that is, a north and south line."

The witness further testified on cross-examination, as follows:

"Q. 1. Did you hear, or come to know from anybody, that the rolling lands in range 9 east, any part of it, was ever designated as any part of the Sierra Nevada Mountains? A. No, sir. Q. 2. Did you ever know or hear of the rolling land in range 10 east being ever designated as part of the Sierra Nevada Mountains? A. A great deal of land in both those ranges