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predecessor at the time of his said decision, and see no reason to dissent from the general conclusions and result reached by him. The motion for a rehearing is denied.

APPLICATION TO REOPEN CASE, ETC.

RANCHO LAS VIRGENES.

Where the application raises the same question formerly considered, all parties interested having had full opportunity to be heard and produce testimony, and no new matter of law or fact is presented, all having been fully investigated, the case must be held definitely settled and reopening denied.

Secretary Teller to Commissioner McFarland, July 2, 1883.

SIR: You transmitted, under date of the 22d instant, for my consid eration, the protest of D. M. Vejar and others, claiming to be owners or to have interests in the Rancho Las Virgenes, in Los Angeles County, California, against the approval of the survey of said rancho as directed by Secretary Kirkwood's decision of June 10, 1881, and asking for permission to introduce further evidence in the case. They allege that, in their opinion, the testimony taken at the hearing in December, 1880, as to the location of the point of beginning of the juridical possession of said rancho was either misunderstood by the interpreter or improperly interpreted by him, and that it differently located said point from the location found by my predecessor's decision.

The facts respecting this rancho and the several surveys thereof are minutely detailed in your several reports thereon to this Department. It appears that a survey of the rancho was made in 1875, which was not adopted, and another was made in 1876, both by United States Deputy Surveyor Goldsworthy. The second survey was published and not objected to, and was approved by the surveyor-general in 1877, and returned to your office for appropriate action. In July, 1878, it was set aside by Secretary Schurz, chiefly for its supposed erroneous location of "Cruz de Tapia," the place of beginning of the juridical possession of the original grant of Las Virgenes, and he directed a new survey in accordance with the specific boundaries set forth in the act of juridical possession, commencing at the place referred to as "Cruz de Tapia." In December, 1879, the surveyor-general returned to your office, with his approval, the plat of said new survey and the field-notes. thereof, made by United States Deputy Surveyor Minto. Subsequently certain descendants of the confirmee of the lands intended to be embraced in the rancho filed a protest against said survey, representing that it excluded therefrom their settlements and improvements in that it located "Cruz de Tapia" at a different point from where it in fact was, and thereupon, October 22, 1880, Secretary Schurz directed an investigation to be made by the surveyor-general to ascertain its correct location. June 10, 1881, Secretary Kirkwood, in view of the testimony

submitted at said investigation and of all the papers in the case, and concurring in the conclusions reached by you, as stated in your letter of May 13th preceding, located "Cruz de Tapia" at a named point, and directed that the Minto survey be set aside and that a new one be made in accordance with his findings. The survey was made accordingly. Subsequently one Miguel Leonis and others moved for a reopening of the case, which, May 8, 1882, upon consideration of all the facts, I denied, holding that no sufficient reasons were presented for any modification of the instructions upon which the survey was based, or for the survey.

The chief question in all these proceedings involved the correct location of "Cruz de Tapia," the place of beginning of the juridical pos session of the original grant of Las Virgenes, and this review of the case shows the earnest efforts of your office and of this Department in that respect, and with what caution conclusions have been reached.

The present proceeding again raises the same question. All the parties in interest have heretofore had full opportunity to submit their views with such testimony as they saw fit. No new matter of law or of fact is presented. The protest and petition set forth the views of the petitioners only, and the facts they allege are not under oath. As all these matters have been heretofore fully investigated and considered, and as I find nothing in the case to justify its reopening, it must be held definitely settled by the former action of this Department. The protest is therefore dismissed; the petition is denied.

ON MOTION FOR REVIEW OF DECISION BY SECRETARY SCHURZ, MARCH 3, 1881.

PUEBLO LANDS OF SAN FRANCISCO.

The right to the Pueblo title and possession rests in the city of San Francisco by judicial confirmation.

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The description of the land confirmed being "so much of the extreme upper portion of the peninsula, above ordinary high-water mark, as will contain an area of 4 square leagues; said tract being bounded north and east by the Bay of San Francisco, on the west by the Pacific Ocean," &c., the line intended must be taken to be the line of ordinary high-water mark of the bay and the ocean proper, crossing the mouths of creeks and estuaries and including the same and the shores thereof, although lying below the line of ordinary high tide.

The decision of Secretary Schurz, making the "Red Line Map" the basis of the survey directed thereby, did not require it to be inflexibly adhered to, but required the tide line of the bay to be followed and not that of the banks of estuaries and streams.

Compliance with former decision directed.

Secretary Teller to Commissioner McFarland, July 12, 1883.

SIR: I have considered a motion for review of the decision rendered by Mr. Secretary Schurz, March 3, 1881, in the matter of the survey of the

Pueblo lands of San Francisco, setting aside, as to the particulars named, what is known as the Stratton survey, executed in 1867, and directing a new survey of the line of high-water mark on the Bay of San Francisco, taking as a basis what is designated as the "Red Line" of the original shore, as delineated by authority of an act of the legislature of California, approved March 26, 1851.

The motion for review was duly presented under the permission of the Department in April, 1881, with a request that the matter of argument be left open for the consideration of whatever questions might arise in the further progress of the case, and was formally renewed in September, 1882, by counsel for the parties interested in the approval of the Stratton survey, and after full oral and written argument the whole case has been regularly submitted for my decision.

Having complete jurisdiction of the case, as shown by the authorities cited on page 4 of the former decision-also Maguire v. Tyler (1. Bl., 195, and 8 Wall., 650), Van Reynegan v. Bolton (95 U. S., 33), Snyder v. Sickles (98 U. S., 203), and other cases-I propose to give such direction in the matter as will lead to an intelligent execution of the survey, at the same time limiting the expression of my views to the exact points presented by the pending application.

The right to the Pueblo title and possession rests in the city of San Francisco, by judicial confirmation, sanctioned and ratified by legislative grant. (Trenouth v. City and County of San Francisco, 100 U. S., 251.) The case just cited contains not only a clear and concise statement of this particular grant, but of the Mexican custom and law in which such title originated. The acts of Congress referred to are those of July 1, 1864 (13 Stat., 333), and March 8, 1866 (14 Stat., 4), the latter of which released all claims of the United States upon certain trusts, and by direct reference to the decree of the circuit court of the United States rendered May 18, 1865, which specified the boundary calls of the grant.

The descriptive language of the decree is this:

The land of which confirmation is made is a tract situated within the county of San Francisco, and embracing so much of the extreme upper portion of the peninsula above ordinary high-water mark (as the same existed at the date of the conquest of the country, namely, the 7th of July, A. D. 1846), on which the city of San Francisco is situated, as will contain an area of four square leagues; said tract being bounded on the north and east by the Bay of San Francisco, on the west by the Pacific Ocean, and on the south by a due east-and-west line drawn so as to include the area aforesaid.

All material questions relating to this boundary are, as I understand the case, now settled, except the single inquiry whether or not in run. ning along the line of ordinary high-water mark of the ocean, and especially of the bay, the main shore or coast line of such body of water, identified by its larger description, shall be followed, cutting across the mouths of streams, estuaries, and creeks which, intersecting the body

of the peninsula, find their entrance into the said ocean or bay; or whether such estuaries as also fall below high tide shall be segregated by following up the tide line on one side and down on the other, so as to map them, as it were, as a part of the sea, and to measure only the land surface thus articulated and segregated, to obtain the area called for by the grant.

My predecessor held that the former was intended by the decree and expressed its true construction. The applicants for review adhere to and insist upon the latter interpretation.

Mission Creek, so called, running into Mission Bay, an interior part or portion of the Bay of San Francisco, presents the principal locality of the controversy; although several other streams are also affected by the tidal flow, and strips of land along their banks are, or were in 1846, submerged by the ordinary high tides. All these lands are now reclaimed, and covered by the streets, blocks, and buildings of the city. It is sufficient for this case to fix the meaning of the decree as to Mission Creek; for, if that be excluded as a boundary, all the other streams and lesser channels will, by the same rule, fall within the exclusion. It is broadly contended that the controlling words of the decree are those first occurring, viz, "embracing so much above ordinary high water mark * as will contain an area of four square leagues;" that this is descriptive of the lands with reference to every part and parcel of the same wherever situated, and draws to itself every subsequent mention of boundary, so as to compel us to treat all the waters below high tide in any part of the peninsula as forming "arms of the sea," which must be considered as a part of the sea named for boundary, and "meandered" out for quantity, in obtaining the area which governs the location of the south line of the grant. Others concede that possibly the fact of navigability of the estuary may have some bearing, but claim that if the stream was navigable it necessarily formed a part of the bay called for, and its high-tide line must be taken in surveying out the land.

To my mind both these views are extreme, and at variance with the intent and language of the decree. These first words of description are of the land as "a tract," a "portion of the peninsula " referred to as a whole, by reference to its situation "above ordinary high water" of the surrounding ocean and bay; description of the land as such "peninsula," and only intended to set out the location and situs of the grant, lying there as a portion of country within well-known natural water boundaries and rising above their ordinary lines of high tide. This peninsula was confirmed as a tract granted for municipal purposes, for the uses of a prospective and growing city, which at date of confirmation had already achieved more than its early promise. Manifestly, such a grant must take whatever is inland with respect to the bodies of water surrounding it-whatever might or should attach to its municipal uses-and, if traversed by a water course, everything not strictly

belonging to the public easement, to the jus publicum as recognized by the law of nations, would naturally fall within the municipal right. To change or limit this natural and persuasive presumption of intent, words of clear and unmistakable import must be used; not words which may reasonably find full interpretation in the opposite view.

Now, when we look at the calls for boundary there is no ambiguity, no doubtful phraseology: "Said tract being bounded on the north and east by the Bay of San Francisco, on the west by the Pacific Ocean." The "tract" bounds upon the "bay" and "ocean," not upon estuaries, creeks, and streams intersecting such tract, even though they be navi. gable, and technically termed "arms of the sea."

I have examined the full list of authorities cited and brought to my attention at the argument and subsequently, and have no question to raise respecting them in a case to which they apply. Those on which great stress is laid are Hunt's Law of Boundaries, 16, 17; 8th Alabama, 1 to 24; 16 Peters, 251, 266, 267; 6 Cowan, 518, 540; 2 Wallace, 590; 94 U. S., 324. In all these cases the arm of the sea, or the stream itself, was the given boundary, and the only thing decided was that the title reached only to high-water mark; all beyond that resting in the rights. of riparian proprietorship, subject to the public easement.

But, as before stated, this is another case. Here the boundary is not the stream, but the bay; consequently the "ordinary high-water mark" must be the high-water mark of the shore as pertaining to the sea, and not the high-water mark of the bank as pertaining to a river or stream. So that, although Mission Creek is alleged to have been as well a tidal inflow as an outlet for the inland waters, it nevertheless falls within banks instead of resting upon shores, and must be considered an inland water for all purposes, being far within the rule laid down in United States v. Grush (5 Mason, 290), and clearly covered by the late case of United States v. Steam Vessels (No. 141, October term, 1882).

To the foregoing may be added the rule long since established by the United States Coast Survey, as communicated by the Superintendent under date of 8th ultimo, in response to my request for information on the subject. I subjoin his letter:

U. S. COAST AND GEODETIC SURVEY OFFICE,
Washington, June 8, 1883.

SIR: In further illustration of the statement made by this office under date of June 5, in answer to your letter dated May 31, 1883, concerning the practice of this office in defining the inner boundaries or outlines of bays when the same are interrupted by the mouths of estuaries, rivers, or creeks, I submit the following additional statement:

This office has long since had occasion to adopt definite rules in that respect for the purpose of making estimates for projected work and giving account of work done.

The rule adopted is to draw the line between high-water mark of the nearest points of land on each side of the interruption in continuation of the general outline.

Thus, making use of familiar illustrations on the Atlantic coast, the

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