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RANCHO BUENA VISTA.

Further instructions as to location of corners. Survey to be made to conform to the boundaries designated in the decree of confirmation.

Commissioner McFarland to surveyor-general, San Francisco, July 1, 1884.

SIR: In reply to the request contained in your letter of the 13th instant for further instructions in the matter of the survey of the Rancho Buena Vista, I have to say: That, referring to my decision of May 27, last, you will see that it was therein held that the claim was confirmed by the boundaries set forth in the decree, being the same described in the act of juridical possession, and that the survey must be made to conform to said boundaries as nearly as practicable. This was the paramount direction. The accompanying suggestions were merely intended to aid in identifying and determining the location of the boundaries; and as to the survey of Deputy Minto, that it might be taken or followed for the purpose of lessening the labor and facilitating the preparation of the new survey, in so far as it conformed to the boundaries prescribed.

It appeared upon the examination of the case that the surveys of Hays and Minto agreed very nearly as to the southwest corner boundary, describing it as "on the top of a red hill"; "a small red hill" being the boundary prescribed in the confirmation. It also appeared from the field-notes of Strobel's survey that he located his northwest corner "on a hill where is a big rock," the confirmation designating the boundary as "on a hill where there is a rock." The diagram of Minto's survey also agreed substantially with that of Strobel as to the location of the northwest corner.

It now appears from Minto's field-notes and the "Diagram R,” both transmitted with your letter of the 13th ultimo aforesaid, that Strobel's description of the northwest corner, as located by him, was erroneous; that instead of being "on a hill where is a big rock," it is 20 chains southwesterly from that point. The adoption, therefore, of Strobel's corner as the northwest corner of the survey to be made was not correct, owing to the false premises upon which it was predicated; and the direction as to the location of said corner is accordingly modified. Referring to Diagram R aforesaid, it would seem from the descriptions thereon that the northwest corner should be located at the point marked "E," the southwest corner at "B," the northeast corner prob ably at "F" (the probability being strengthened by the statement accompanying, that within the angle formed by the corner so located "is land once cultivated by the Indian Felipo," and the additional accompanying statement that Strobel found here "a mound of rocks known for many years as a corner of Buena Vista Rancho"), and the southeast possibly at "C." The descriptionof the latter point-" top of hill, big rock"-does not well correspond with that of the confirmation, "a small

peak where stand two rocks joined together," though, from the general features of the survey, located near where the true corner should be looked for.

My decision of May 27 last aforesaid is modified as above as to the northwest corner. The statements on Diagram R as to the northwest corner obviate the necessity of resorting to measurement, as suggested in said decision, to ascertain the location of said corner, and thereby the points "D" and "G" of said diagram are eliminated from consid eration.

In executing the survey you will be governed by the boundaries designated in the decree of confirmation, adopting the suggestions herein as far as they are found to correctly indicate the corner boundaries on the ground. Notify the parties in interest of said decision as herein modified, and make return as directed in said decision.

2. COST OF SURVEY.

ACT OF JULY 31, 1876—COST OF SURVEY.

RANCHO SANTIAGO DE SANTA ANA.

The only provision of law relating to payment by claimants for surveys of private land claims is found in the act of July 31, 1876. Only the proper costs of survey and platting are chargeable.

Acting Commissioner Harrison to surveyor-general, San Francisco, March 10, 1881.

SIR: I have received your letter of February 25 ultimo, with modified bill of costs in the matter of the survey of the Rancho Santiago de Santa Ana, and have considered your explanation of the several items charged therein, which items are as follows:

No. 1, January 7, 1879, to William Minto, for explanation

No. 2, October 13, 1879, to Los Angeles Weekly Journal, advertising..
No. 3, October 13, 1879, to Los Angeles Herald, advertising..

No. 4, October 21, 1879, to Santa Ana Herald, advertising

No. 5, October 23, 1879, to J. A. Forbes, expenses in conducting examina-
tions

No. 6, October 25, 1879, to S. C. Houghton, reporter's fees in examination ..
No. 7, July 12, 1881, to William Minto, for examination.....

No. 8, October 3, 1833, to original calculation and platting

No. 9, October 3, 1883, to duplicate ................

No. 10, October 3, 1883, to descriptive notes

No. 11, October 3, 1883, to Wm. Minto, for survey

$54 50

9.75 12.00

5 00

54275

201 60

221 50

200 00

50 00

50 00

430 50

1,289 60

The following is a brief history of the proceedings in the case during the time embraced in said bill, as far as relates to the question of the costs required to be paid by the claimants:

The plat, field-notes, &c., of the survey of the claim, executed by United States Deputy Surveyor Hancock, were returned to this office by the surveyor-general under date of January 4, 1879, and the matter of location was pending here for consideration and decision; Britton and Gray, esqs., representing the grant claimants, and Hon. Montgomery Blair the conflicting Rancho Las Bolsas.

On examination of the case it was found that the location of certain of the boundaries was so imperfectly indicated that an examination on the ground, the taking of testimony, and a further report were necessary to the due execution of the law relating to the survey and location of private claims in California.

Notice to the parties and investigation by the surveyor-general were accordingly directed by my letter of July 3, 1880, under the first section of the act of July 1, 1864 (13 Stat., 332). This was done upon my own motion, from the necessity of the case, for the purpose expressed. The attorneys for the claimants did not move in it.

My action was sustained by the Department against the motion of Mr. Blair praying the Department to interpose its supervisory authority and arrest the proceeding.

The investigation was had, testimony taken, and an examination made upon the ground by United States Deputy Surveyor Minto, under direction of the surveyor-general; and the testimony, exhibits, and report of the deputy returned to this office by the surveyor-general as the result of the investigation directed as aforesaid.

Upon the case as then presented and the briefs and arguments of the counsel thereupon my decision was made directing a new survey of the claim. This decision was affirmed on appeal by the honorable Secretary of the Interior. His decision was communicated to the surveyorgeneral, and in due time the new survey was made and returned in accordance therewith, was duly approved, and patent prepared for issue thereon.

The claimants are required to pay the costs of said survey before patent can be issued to them, but object to the items in said bill Nos. 1 to 7, inclusive, as not being legally chargeable against them in the premises.

The law applicable to the case is found in the act of July 31, 1876 (19 Stat., 121), which requires

That an accurate account shall be kept by each surveyor-general of the cost of surveying and platting every private land claim, to be reported to the General Land Office, with the map of such claim; and that a patent shall not issue, nor shall any copy of such survey be furnished, for any such private claim until the cost of survey and platting shall have been paid into the Treasury of the United States by the party or parties in interest, or by any other party.

This, I believe, is the only provision of law applicable to the subject,

and I am not aware of any usage or practice having reference to private claims in any way supplementing the statute.

The language of the act is unequivocal and does not admit of construction, and, if parties can be required to pay expenses beyond the cost of survey and platting, it must be by some implication or for some reason outside of the language and purport of the act.

The first item in the bill of costs, No. 1, $54.50, for examination by Deputy Surveyor Minto, was incurred by direction of Surveyor-General Wagner to aid him in forming his opinion and reporting satisfactorily upon the Hancock survey. That survey was made in 1857, long before any law was passed requiring parties to private claims to pay the costs of survey. I do not see that it has any relation to the making of the present survey, or the costs thereof.

The items Nos. 2 to 7, inclusive, all relate to the investigation preceding the present survey. Notice was published, a substitute to act for the surveyor-general was appointed, a reporter employed, and an examination directed by the surveyor-general as a part of the investigation made on the ground by Deputy Surveyor Minto. All this expense was certainly no part of the "cost of survey and platting" of the survey to be thereafter made if a new or modified survey should be ordered. And suppose, as the result of the investigation, that the Hancock survey had been approved, what would have been the status of these charges as regards the obligation of the claimants to pay them?

The investigation, as to its probable effect upon the decision, having resulted favorably for the claimants, it might seem equitable and just, as between them and the Government, which has no interest in the case, that they should pay the expense; but their legal obligation is no greater than it would have been if the result had been unfavorable to them.

There are many expenses attending the adjudication, confirmation, and location of private claims of this character, all being for the benefit of the claimants, which the Government rightfully pays by reason of its treaty obligations to recognize and protect the rights of individ uals in such claims. To fulfill its obligations, do justice to interested parties, and at the same time protect its own interests in the public domain, it was necessary to provide for ascertaining and determining the validity, locality, and extent of alleged claims, the payment of the necessary expenses of the proceedings being incidental to the discharge of the obligation.

The Government has, therefore, without questioning, paid all these expenses; and it has been only since the act of May 30, 1862 (12 Stat., 409; Rev. Stat., 2400), repealed March 3, 1875 (18 Stat., 384), and substantially re-enacted by the statute of July 31, 1876, aforesaid, that Congress has required the party in interest, after his claim has been determined and located, to pay the cost of marking it upon the ground and preparing the plat of survey, to be made the record evidence of the extent of his right.

I am clearly of opinion that the requirement for payment of expenses cannot be extended beyond the terms of the statute referred to, and in the present case that the patent should be delivered to the proper party on payment of the items Nos. 8, 9, 10, and 11 in the bill of costs aforesaid, amounting to $730.50, and you are hereby instructed accordingly.

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APPEAL-TIME-NOTICE-INTERLOCUTORY AND FINAL ORDER.
MRS. LEANN S. KING v. THOMAS LEITENSDORFER.

Where notice of decision is served by the General Land Office on the attorneys resident in Washington, and also by the local office on party residing at a distance, or on the attorney residing in vicinity of the party, time for appeal will commence to run from date of latter service.

When the decision adjudicates and finally disposes of the question presented, though not determining the case in which it is raised, it does not come within the rule applicable to matters merely interlocutory and resting in discretion, and is subject to appeal.

Commissioner McFarland to register and receiver, Pueblo, Colo., November 16, 1883.

GENTLEMEN: Under date of June 27, 1883, my decision was communicated to you from this office, denying the motion by Wells, Smith & Macon, esqs., of Denver, Colo., and Britton & Gray, esqs., of this city, in behalf of Mrs. Leann S. King, to be substituted in place of Thomas Leitensdorfer (a derivative claimant under the Vigil and St. Vrain grant) and allowed in his stead to prosecute the appeal taken by him to this office from the decision of the register and receiver rejecting his claim; and you were instructed to notify the parties in interest, or their attorneys residing in Colorado, of said decision, and inform them of their right to appeal under the rules.

On the same day notice of said decision was given from this office by mail to Britton & Gray, esqs., and R. H. Bradford, esq., the attorneys resident here of Mrs. King and Leitensdorfer, respectively.

On the 6th of July, 1883, as I am advised by you, a copy of my decision aforesaid was mailed by you to Wells, Smith & Macon, esqs., the Colorado attorneys of Mrs. King.

On the 31st of August, 1883, notice of appeal from said decision, and specification of errors, bearing date August 29, was received by this office from Messrs. Britton & Gray for Mrs. King, with admission of service of copy thereof on Mr. Bradford, attorney for Leitensdorfer, dated August 30.

On September 29, 1883, a motion was filed in this office by Mr. Brad

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