Field, J. delivered the opinion of the Court—
Terry, C. J. and Baldwin, J. concurring.
This is an action of ejectment, to recover the possession of a tract of land situated in Butte County. The plaintiffs deraign their title to the premises from a grant issued to Maximo and Dionisio Fernandez, by Pio Pico, formerly Mexican Governor of California, and a patent issued, upon its confirmation, on behalf of the United States. The grant bears date on the twelfth of Juno, 1846; the claim under it was presented for confirmation to the Board of United States Land Commissioners in March, 1852, and was confirmed by that Board to the claimants in July, 1855, and subsequently by the United States District Court in March, 1857. The Attorney-General of the United States soon afterward gave notice that no further appeal would be prosecuted on the part of the United States, and by an order of the District Court, the claimants had leave to proceed as upon a final decree. The grant describes the land as lying in the immediate vicinity of the river Sacramento, and as bounded on the north by the base of the Snowy Mountains; on the south by the lands of John A. Sutter, and on the east by Feather River. No boundary on the west is specified, but to the espediente a map of the tract was annexed, and to this map reference is made in the grant, the third condition of which is in the following language : “ The land of which donation is made is merely four square leagues (or four ranges of neat cattle), in conformity with the map annexed to the proceedings (espediente). The Judge who may give possession will cause the same to be measured according to the Ordinance, leaving the remainder which may result to the nation for its proper uses.” In April, 1857, four leagues— the specific quantity granted—wore laid off and surveyed under the directions of the Surveyor-General of the United States for California, and the survey was, in May following, approved by that officer. Upon this survey, and in pursuance of the confirm[485]*485ation, a patent on behalf of the United States was issued to the claimants, bearing date on the 14th of October, 1857, for four leagues of land with the specific description of the official survey. This patent includes the premises in controversy, and the defendants were in their occupation at the commencement of the action.
To resist a recovery, the defendants offered parol evidence, to show that the four leagues, as surveyed and patented, were different from the tract designated in the grant, and the map to which the grant makes reference; that a correct location of the tract, as granted, would not include the premises in suit; that the defendants arc citizens of the United States, and had each entered upon a separate quarter section of the promises, claiming the privileges of pre-emptioners under the laws of the United States, and made the improvements required in such cases, and had, in May, 1858, filed their separate declaratory statements in the office of the United States Register, at Marysville, insisting that as such pre-emption claimants, they had acquired vested rights, and that the confirmation of the grant, and the patent issued thereunder, were not conclusive against them under the provisions of the 15th Section of the Act of Congress of March 3d, 1851. The Court below excluded the evidence offered, and its ruling in this respect constitutes the principal error assigned for a reversal of the judgment.
This ruling of the Court, we think clearly correct, and the position of the defendants untenable. It will be seen from the grant that there were no certainty and precision in the boundaries. Mo ofacial survey of the northern line of the lands of Sutter was ever made under the former government, and none has as yet been made under the government of the United States. The position of that lino was a matter still to be determined when the grant to Fernandez was issued. The point where the Sierra Nevada may properly be said to commence, was at the time, and is to this day, a matter of uncertainty. The term faldas is used in the original grant, and is sometimes translated “ slope of the mountains,” and sometimes “base” of them. It represents no independent existence, but only something pertaining to that which is greater. As applied to the Sierra Nevada, it must mean either their “ base” or “slope,” and not those ele[486]*486vations which precede the general rise of the mountains, and are termed “foot hills.” The commencement of such base or slope is not fixed by any marks which give to it precision and certainty. The western boundary is not given at all. It is very evident that the Governor only intended to indicate by the boundaries designated the general outlines of the tract within which the four leagues wore to be taken. Between the faldas of the Sierra Nevada—not meaning thereby the foot hills, but the base or slope of the mountains—and the line of Sutter, as given by the witness, Bidwell, who made the map referred to in the grant to Fernandez, there is an extent greatly exceeding four leagues. The western boundary is not, as we have stated, given, and between Feather River on the oast, and the Sacramento River, in the vicinity of which the land is stated in the grant to lie, there is a much greater width than one league.
If, then, the grant in question is to be regarded as conveying an interest to four leagues lying within a larger tract, the right to measure off and give precision to the specific quantity granted, remained with the former government, and passed with all other public rights to the government of the United States, upon the cession of the country. That right belongs to the political department of the government, and cannot be exercised by Courts of Justice. The Courts can ascertain and fix the position of boundaries which are designated, but cannot give boundaries to a specific quantity which has none, and lies in a larger tract. To give precision and location to such specific quantity a survey must be made by the proper department of government, in which the subject is vested by the legislation of Congress, (See Waterman v. Smith, 13 Cal. 373.) With the action of that department, the judiciary cannot interfere. The judiciary must determine, it is true, whether prior rights of third parties have been interfered with by the survey and patent issued thereon, but it cannot correct the one nor the other, and locate the land, where, in its judgment, the location ought originally to have been made. The survey and patent are conclusive upon it in actions of ejectment, except when in conflict with the prior rights of third persons, and then their inconclusivoness can be asserted only to the extent essential for the protection of such prior rights.
We do not understand the counsel of the defendants as ques[487]*487tioning the correctness of these views, but as insisting that the map annexed to the grant embraced the precise quantity of four leagues granted, and as that quantity was to be taken in conformity with such map, the title of the grantees was perfect, requiring no further action of the government, and must be restricted to the land contained in the map; that the subsequent confirmation, survey, and patent, of the United States did not add to the grantees’ title, nor could they, without the grantees’ assent, in any way have impaired it.
The title of the grantees to the land contained within the map may be admitted to have been perfect, and yet no conclusion follows against the claim of the plaintiffs.
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Field, J. delivered the opinion of the Court—
Terry, C. J. and Baldwin, J. concurring.
This is an action of ejectment, to recover the possession of a tract of land situated in Butte County. The plaintiffs deraign their title to the premises from a grant issued to Maximo and Dionisio Fernandez, by Pio Pico, formerly Mexican Governor of California, and a patent issued, upon its confirmation, on behalf of the United States. The grant bears date on the twelfth of Juno, 1846; the claim under it was presented for confirmation to the Board of United States Land Commissioners in March, 1852, and was confirmed by that Board to the claimants in July, 1855, and subsequently by the United States District Court in March, 1857. The Attorney-General of the United States soon afterward gave notice that no further appeal would be prosecuted on the part of the United States, and by an order of the District Court, the claimants had leave to proceed as upon a final decree. The grant describes the land as lying in the immediate vicinity of the river Sacramento, and as bounded on the north by the base of the Snowy Mountains; on the south by the lands of John A. Sutter, and on the east by Feather River. No boundary on the west is specified, but to the espediente a map of the tract was annexed, and to this map reference is made in the grant, the third condition of which is in the following language : “ The land of which donation is made is merely four square leagues (or four ranges of neat cattle), in conformity with the map annexed to the proceedings (espediente). The Judge who may give possession will cause the same to be measured according to the Ordinance, leaving the remainder which may result to the nation for its proper uses.” In April, 1857, four leagues— the specific quantity granted—wore laid off and surveyed under the directions of the Surveyor-General of the United States for California, and the survey was, in May following, approved by that officer. Upon this survey, and in pursuance of the confirm[485]*485ation, a patent on behalf of the United States was issued to the claimants, bearing date on the 14th of October, 1857, for four leagues of land with the specific description of the official survey. This patent includes the premises in controversy, and the defendants were in their occupation at the commencement of the action.
To resist a recovery, the defendants offered parol evidence, to show that the four leagues, as surveyed and patented, were different from the tract designated in the grant, and the map to which the grant makes reference; that a correct location of the tract, as granted, would not include the premises in suit; that the defendants arc citizens of the United States, and had each entered upon a separate quarter section of the promises, claiming the privileges of pre-emptioners under the laws of the United States, and made the improvements required in such cases, and had, in May, 1858, filed their separate declaratory statements in the office of the United States Register, at Marysville, insisting that as such pre-emption claimants, they had acquired vested rights, and that the confirmation of the grant, and the patent issued thereunder, were not conclusive against them under the provisions of the 15th Section of the Act of Congress of March 3d, 1851. The Court below excluded the evidence offered, and its ruling in this respect constitutes the principal error assigned for a reversal of the judgment.
This ruling of the Court, we think clearly correct, and the position of the defendants untenable. It will be seen from the grant that there were no certainty and precision in the boundaries. Mo ofacial survey of the northern line of the lands of Sutter was ever made under the former government, and none has as yet been made under the government of the United States. The position of that lino was a matter still to be determined when the grant to Fernandez was issued. The point where the Sierra Nevada may properly be said to commence, was at the time, and is to this day, a matter of uncertainty. The term faldas is used in the original grant, and is sometimes translated “ slope of the mountains,” and sometimes “base” of them. It represents no independent existence, but only something pertaining to that which is greater. As applied to the Sierra Nevada, it must mean either their “ base” or “slope,” and not those ele[486]*486vations which precede the general rise of the mountains, and are termed “foot hills.” The commencement of such base or slope is not fixed by any marks which give to it precision and certainty. The western boundary is not given at all. It is very evident that the Governor only intended to indicate by the boundaries designated the general outlines of the tract within which the four leagues wore to be taken. Between the faldas of the Sierra Nevada—not meaning thereby the foot hills, but the base or slope of the mountains—and the line of Sutter, as given by the witness, Bidwell, who made the map referred to in the grant to Fernandez, there is an extent greatly exceeding four leagues. The western boundary is not, as we have stated, given, and between Feather River on the oast, and the Sacramento River, in the vicinity of which the land is stated in the grant to lie, there is a much greater width than one league.
If, then, the grant in question is to be regarded as conveying an interest to four leagues lying within a larger tract, the right to measure off and give precision to the specific quantity granted, remained with the former government, and passed with all other public rights to the government of the United States, upon the cession of the country. That right belongs to the political department of the government, and cannot be exercised by Courts of Justice. The Courts can ascertain and fix the position of boundaries which are designated, but cannot give boundaries to a specific quantity which has none, and lies in a larger tract. To give precision and location to such specific quantity a survey must be made by the proper department of government, in which the subject is vested by the legislation of Congress, (See Waterman v. Smith, 13 Cal. 373.) With the action of that department, the judiciary cannot interfere. The judiciary must determine, it is true, whether prior rights of third parties have been interfered with by the survey and patent issued thereon, but it cannot correct the one nor the other, and locate the land, where, in its judgment, the location ought originally to have been made. The survey and patent are conclusive upon it in actions of ejectment, except when in conflict with the prior rights of third persons, and then their inconclusivoness can be asserted only to the extent essential for the protection of such prior rights.
We do not understand the counsel of the defendants as ques[487]*487tioning the correctness of these views, but as insisting that the map annexed to the grant embraced the precise quantity of four leagues granted, and as that quantity was to be taken in conformity with such map, the title of the grantees was perfect, requiring no further action of the government, and must be restricted to the land contained in the map; that the subsequent confirmation, survey, and patent, of the United States did not add to the grantees’ title, nor could they, without the grantees’ assent, in any way have impaired it.
The title of the grantees to the land contained within the map may be admitted to have been perfect, and yet no conclusion follows against the claim of the plaintiffs. If they have accepted the land described in their patent as satisfying their claim,' no other persons can object that a portion of the land thus taken is without the boundaries of the grant, unless their prior rights are interfered Avith. This is a matter betiveen the government and the grantees, Avith which strangers have no concern. The answer, hoAvever, to the position of counsel is this: The government has provided a Board for the determination of the validity of claims to lands held under Mexican grants, and a system for the survey and location of the lands upon the recognition and confirmation of such claims. The survey and location are to fblloAV the decree of confirmation. The approval of the survey by the proper officers is the determination—the judgment of the appropriate department of government, that the survey does conform to such decree. That determination or judgment is not the subject of review by the judiciary. It is conclusive upon the Courts in actions of ejectment, as the adjudication of a competent tribunal, up.on a subject within its exclusive jurisdiction. The patent, which is the final document issued by the government, is conclusive evidence of the validity of the original grant, and of its recognition and confirmation, and of the survey, and its conformity with the confirmation, and of the relinquishment to the patentee of all the interest of the United States in the land. It cannot be attacked collaterally, even for fraud, whether charged to have existed in the procurement of the original grant, or in the proof of its execution, or in the making of the survey. For these matters the right of interference rests only with the government. Individuals can resist the [488]*488conclusiveness of the patent only by showing that it conflicts with prior rights vested in them. And this brings us to the inquiry whether the defendants possess any such prior rights. The 15th Section of the Act of Congress of 1851, provides that the final decree of confirmation and patent, shall be conclusive between the United States and the claimants only, and shall not affect the interests of third persons. If conclusive between the United States and the claimants, it must be equally so between persons holding under either of those parties; and in Waterman v. Smith, supra, we held that the third persons mentioned in the Act were those whose title was at the time such as to enable them to resist successfully any action of the government respecting it. The patent took effect by relation, at the. date of the presentation of the petition of the patentees to the Board of Land Commissioners, in March, 1852. At that time the preemption laws of the United States, under which the defendants assert their acquisition of rights, were not extended to Califoria. Any rights which they possess were subsequently acquired, and must bo subordinate to the result of the proceedings then pending by the grantees before the tribunals and officers of the United States. These proceedings had for their object the recognition of the grantees’ claim, and-the determination of its location with such precision as to leave no room for subsequent dispute and litigation. If settlers, after steps taken for confirmation, could by location acquire such rights to the premises as to authorize them to compel a patentee, in every suit for the recovery of his land, to establish the correctness of the action of the officers of government in their survey and location, the patent, instead of being an instrument of quiet and security to the possessor, would become a source of perpetual and ruinous litigation, and the settlement of land titles in the country be delayed a quarter of a century. The patentee would find it established in different suits, to the utter destruction of his rights, that his land should have been located in as many different places within the exterior boundaries of the general tract, designated in his grant, as the varying prejudices, interests, or notions of justice, of witnesses and jurymen might suggest.
The notice published by two of the plaintiffs and the vendor of the third, in 1856, stating that they had become the owners [489]*489of the grant, and specifying its boundaries, and warning trespassers not to come upon their land-within such boundaries, was properly excluded. Such notice could not operate as an estoppel upon the plaintiffs, for two reasons. First, it was only evidence of the opinion the parties entertained of the boundaries of their claim; that opinion could not control the action of the officers of government, or affect the validity and effect of the patent. The pre-emptioners are presumed to have known, as such was the law, that the right of survey and location rested exclusively with the government, and was not subject to any direction of the grantees. Mor is it reasonable to hold that the plaintiffs intended to abandon all rights to any other land, provided the official survey did not conform to the boundaries they indicated. The most that can be asserted for the notice is, that until the location of their tract, the parties limited their claim to the land within certain boundaries. It may be possible that such notice would operate as a protection against any demand for damages until the approved survey was made. We do not affirm even this, but certainly it can have no greater effect. In the second place, the settlement was made by the defendants in 1853, and could not have been induced, of course, by the notice published in 185G.
Judgment affirmed.
See Waterman et al. v. Smith, (ante) ; Yount v. Howell, (14 Cal.)