Opinion of the Court. has always been referred to by myself and others in speaking of it, as foot-hills. We never call it the Sierra Nevada Mountains; we speak of it as foot-hills-going up to the mountains. Q. 3. Did you ever hear of rolling hills, if any there be, in range 8, designated as Sierra Nevada Mountains? A. No, sir. I have heard that spoken of in the same manner as foot-hills, but not as mountains." - This seems to us to be a fair exhibit of the general evidence on the subject. The complainant produced a number of witnesses to show that there is a mountain, called Bear Mountain, east of range 11, commencing at the eastern side of said range, which would be twenty-four miles east of the Jack Tone road, thirty-one miles east of the railroad, and from thirty-six to forty miles east of the marshes of the San Joaquin. But the parties concur in considering the Moquelamos grant as comprised between the Moquelumne River on the north and the Calaveras River on the south; and this Bear Mountain is entirely south of the Calaveras. There is north of it, and separated from it by the Calaveras River itself, a hill, called Central Hill, but it is no more of a mountain than many other of the high and abrupt hills at that distance eastward from the railroad. One of the most intelligent of the complainant's witnesses referred to was a Mr. Terry, a surveyor and teacher. The following is the material part of his examination on the subject: "Q. 3. State whether or not, as a surveyor, you have been engaged at any time by the United States to survey public lands. A. I have. "Q. 4. State what you surveyed in that neighborhood of country as United States surveyor. A. Townships four and five north, ranges eleven and twelve east, Mount Diablo base and meridian. "Q. 5. State whether you know a mountain in that locality known as Bear Mountain. A. Yes, sir; and sometimes that range of mountains is called Hog Back. But it is laid down as Bear Mountain on the maps, and is generally called so by surveyors. "Q. 6. Please explain the general features, the condition, Opinion of the Court. and appearance of that mountain known as Bear Mountain. A. Well, it is a low mountain. The north end of it is covered with chaparral or shemisel, or whatever it is called. "Q. 7. How in regard to its extension northward? A. It does not extend north of the Calaveras River. "Q. 8. Do you know a mountain or high elevation known as Central Hill? A. Yes, sir. "Q. 9. State what connection there is, if any, between Central Hill and Bear Mountain. A. There is no connection that I know of. The Calaveras River runs between them." "Q. 11. State whether you know the locality north and south from and including Bear Mountain, to and including Central Hill, and for a few miles north of that. A. Yes, sir; that was in my contract. I travelled all over that range of hills in surveying. "Q. 12. Did you survey all that country? A. Yes, sir; that was in my contract. "Q. 13. Please give a general description, and as particular a description as you can, of that country north and south from and including Bear Mountain, to and including a few miles north say five miles north of Central Hill. A. There is a low range of hills running from the Calaveras River northerly perhaps a little bit east or west of north that is pretty hilly. That is from the west boundary, bluff, or bank, as you may call it, of the Calaveras River and of Chili Gulch. That is in townships four and five north, range eleven east. "Q. 14. Describe the character of that land. A. It is hilly land; some of it is agricultural. I have surveyed several mines in there about Central Hill and further up. I do not know as I can tell exactly how those mines are located. The hilly lands of which I have been speaking are those north of the Calaveras River. "Q. 15. State what the general character and appearance of Bear Mountain is. A. It is a low mountain, and there is considerable oak and pine timber on it; but on the north end there is chaparral. Perhaps a mile up, running south, is covered with this brush. 66 "Q. 16. Does not Bear Mountain appear conspicuous and Opinion of the Court. in full view for, say, ten or twelve miles west of it? A. Yes, sir; from most points on the west it does. Ordinarily, this Bear Mountain is within sight for several miles down here to the west. I used to travel over that country to the west of Bear Mountain and between the rivers Moquelumne and Calaveras a good deal.” We do not perceive that this evidence shows the existence of a sierra at this point, especially between the two rivers. But even if it did, it is still nearly forty miles east of the San Joaquin marshes, and the contents of the entire territory within the granted limits would be over fifty square leagues; - an extent of country which, compared with the quantity of lands granted (eleven leagues), cannot, any more than can the eighty square leagues embraced within the limits of the Sierra Nevada, be presumed to have been within the intention of the parties. It would require clear and positive evidence to establish such a result. The defendants contend that the commencement of the hilly land at or near the Jack Tone road is the true commencement of the "adjacent sierra” named in the grant; and that the hilly and broken land east of that road is all comprehended in the foot-hills of the mountain, and excluded from the grant. In confirmation of this view they not only rely on the topographical evidence which has been noticed, but on the fact that when the claim to the Moquelamos grant was first presented to the Board of Land Commissioners in 1852, and for some time afterwards, the petitioner, Andres Pico, did not pretend or claim that the grant extended farther east than the Jack Tone road; and on the further fact, that the Surveyor General for California, in surveying the public lands and delimiting the boundaries of unconfirmed grants, under the authority conferred upon him by the appropriation act of August 31st, 1852 (10 Stat. 91), assumed the range line between ranges 7 and 8 (or the Jack Tone road) to be the utmost eastern boundary of the Moquelamos grant, and made his surveys up to that line, and no farther. And in September, 1864, when further surveys were proposed, the attorneys of Pico gave notice to the Surveyor General that the lands Opinion of the Court. in townships 2, 3, and 4, south of the Moquelumne River, in ranges 5, 6, and 7 east, (that is, the ranges immediately west of the Jack Tone road,) were claimed by Pico under the Moquelamos grant, and that the said claim had been appealed to the Supreme Court of the United States, and was then pending; and requested the Surveyor General to suspend proceedings for preëmpting said land, or any part thereof. The quantity of land thus claimed to be within the said grant was more than twice the amount required to satisfy the grant, showing that the limits named in the notice did not refer to a specific location of the eleven leagues, but to the outside limits of the grant. This evidence, it is true, might not of itself be binding as against the government; but, taken in connection with the acts of the government itself, and the conduct of its officials, from high to low, acquiescing in this view, it shows a state of things, a concord of words and acts between the parties interested, which, on a question of boundary, is not only admissible, but entitled to much weight, especially after so long a period elapsed before this suit was instituted. Another circumstance relied on to show that the limits of the grant did not extend, at most, farther east than the commencement of the hills near the Jack Tone road, is, that the southern boundary called for is the land of Gulnak. This land is conceded to be the French Camp Grant, or Rancho Campo de los Franceses. And this grant was so determinately located by the accurate diseño annexed to it, that its position was established without difficulty, and has never been seriously questioned. As thus located, its northern line coincides in part with the Calaveras River, being situated a little to the north of the river towards the west, and the whole tract lies altogether west of the Jack Tone road, and does not, at the nearest point, approach it within less than half a mile. So that, if the Moquelamos grant (as required by its description) is to be bounded on the south by the Gulnak tract, it cannot itself extend to the east of said road without being forced to do so by the call of some distinct natural object. On the whole, we are satisfied that the outside boundary Opinion of the Court. limits of the Moquelamos grant, as called for in the grant itself, do not extend east of the Jack Tone road, or the edge of the hills commencing near the same. This result would dispose of the present case with regard to nearly all the land in question therein. But as some of it lies west of said road, in range 7, and as the railroad land-grant extends to the west of said road, it will be necessary to examine the other question referred to, namely: If the lands in controversy did lie within the exterior limits of the Moquelamos grant, and if the title of the railroad company did accrue whilst that grant was under consideration in the courts, did those facts prevent the railroad land-grant from taking effect? The Moquelamos grant belongs to that class of grants which may properly be called floats; that is, grants of a certain quantity of land to be located within the limits of a larger area. Mexican grants were of three kinds: (1) grants by specific boundaries, where the donee is entitled to the entire tract, whether it be more or less; (2) grants of quantity, as of one or more leagues within a larger tract described by what are called outside boundaries, where the donee is entitled to the quantity specified, and no more; (3) grants of a certain place or rancho by name, where the donee is entitled to the whole tract according to the boundaries given, or if not given, according to its extent as shown by previous possession. Iliqueras v. United States, 5 Wall. 827, 834. In the first and third kinds, the claim of the grantee extends to the full limits of the boundaries designated in the grant or defined by occupation; but in the second kind, a grant of quantity only, within a larger tract, the grant is really a float, to be located by the consent of the government before it can attach to any specific land, like the land warrants of the United States. A float may be entitled to location either on any public lands in the United States, or only in a particular State or Territory, or within a more circumscribed region or district. Its character remains the same. The present grant is one of this kind. If it only extends to the Jack Tone road, as we suppose, it is still largely in excess of the quantity granted. If it extends, as the complainant insists, to the Bear Mountain or the Sierra |