OF THE Supreme Court of the United States, AT DECEMBER TERM, 1866. THE HEIRS OF JOSÉ HIGUERA, Appts., | decree of concession were that the applicant v. THE UNITED STATES. (See S. C. 5 Wall. 827-838.) Decree of land commissioners—when conclusive-surveys under-when conclusive when known monuments control courses and distances. Final decrees of the tand commissioners, in cases of claims to lands in California, if regularly made and duly entered in the record, are conclusive between the United States and the claimants, unless an appeal is seasonably taken from the decree according to law. The district court was authorized to order into court surveys of confirmed claims for examination and adjudication. Where the decree of confirmation gives the boundaries, and neither of the parties appealed from it, they are not at liberty to question its correctness, nor to ask for any modification of its terms. In surveys of rough or uneven land or forests, the courses and distances given, always give place, in questions of doubt or discrepancy, to known Where there are defined monuments, errors in the courses are immaterial. monuments and boundaries. [No. 115.] Argued Jan. 26, 1865. Decided Feb. 13, 1865. AF PPEAL from the District Court of the United States for the Northern District of California. The case is stated by the court. for the tract should be put in possession of the same by the commissioner of San José, in whose jurisdiction the land was situated. Measurements were to be made and monuments fixed on the four sides of the tract, and the officer designated to perform the duty was to make return of his doings to the government. Pursuant to those directions the commissioner attended to the duty assigned to him and made his return, in which he states that he went upon the tract and gave possession to the donee, designating the number of varas allowed on each of the four sides of the concession. Claim to a portion of the tract it seems was subsequently made by an adjoining proprietor, and on the 17th day of October, 1835, the original claimant presented to the governor of the territory a second petition, in which he requested that the boundaries of the concession to him might be enlarged, and that his title to the former concession might be confirmed. He based the claim in the second application chiefly upon two grounds: (1) That he had been in the occupation of the tract for more than twelve years; (2) that a part of the tract embraced in the decree of concession had been granted to another person. 2. Second decree of concession granted the augmentation, and requested and directed that the same should be considered as annexed to the former concession. Annexed to the petition was a diseño describing the entire tract, which appears to have been made in strict con Mr. J. H. Bradley for appellants. Mr. Justice Clifford delivered the opinion of the court: This is an appeal from a decree of the district court of the United States for the northern district of California confirming the survey of 829*] a private land claim. Appeals in such cases are authorized by the 5th section of the act of the 14th of June, 1860, if applied for within six months after the date of the decree, and it is under that special provision that the present controversy is now before the court. I. 1. Original claimant acquired a possessory right to the tract of land situate in Santa Clara county, California, and called Tularcitos, on the 4th of October, 1821, by virtue of a decree of concession of that date made to him by the governor of the territory. Directions of the Remark should be made that the first concession did not profess to grant anything more than a possessory *right and the second espediente is [*830 without the formal title; but there can be no doubt that the several documents are sufficient to give to the donee an inchoate right to the tract, within the meaning the the Treaty of Cession and the act of Congress subsequently passed to carry the provisions of the treaty into effect. Act March 3, 1851, ch. 41 (9 Stat. at L. 631). Such also were the views of the land commissioners appointed under that act of Congress, as appears by their decree confirming the claim. Description of the tract as given in the decree of confirmation is that it is situated in Santa Clara county, and is the same land formerly occupied by José Higuera, now deceased, and is known by the name of Los Tularcitos. | southern lines of the survey should be extended Boundaries given in the decree are as follows: easterly to the sierra or main range of mounBeginning at the back side of the principal tains, so as to include the tract of country house on said rancho, standing at the foot of known as the valley of the Calaveras; (3) that the hill, and running thence northward to a the northern line extending from the estuary lone tree on the top of the sierra (which tree is to the Calera creek, should be a straight line known as a landmark); thence east along the instead of an angle, as represented on the plat. sierra to the line of the land known as the Testimony was taken, but before the hearing rancho of José Maria Alviso; then southerly the *claimants filed an additional ex- [*832 along the west line of said Alviso's rancho till ception, describing the tract of country menit intersects the Arroyo de la Penetencia; tioned in the second exception, and claiming thence up said arroyo to an estuary, and from that the lines of the survey should be extended that point to the place of beginning. as therein specified, so as to embrace that whole tract. Additional testimony was then taken and the parties were heard, and after the hearing the several exceptions were overruled, and a decree entered that the "survey be, and the same is hereby confirmed." Claimants asked for a rehearing, which was granted, but the court refused to modify the decree, and ordered that it stand as a final decree in the cause. Present appeal is from that decree, and the questions for decision are those presented in the exceptions to the survey and location, as the same were filed by the claimants. 3. Appeal was duly taken from that decree by the United States; but the appeal, on the motion of the district attorney, was subsequently dismissed, and on his motion also it was ordered, adjudged, and decreed, that the claimants have leave to proceed under the decree as a final decree in their favor. No appeal was subsequently taken, and the decree, there fore, became and is the final decree in the case. Final decrees, in such cases, if regularly made and duly entered in the record, are conclusive between the United States and the claimants, unless an appeal is seasonably taken from the decree according to law. 9 Stat. at L. 632. Confirmation alone, however, did not, under the act, confer upon the claimant a right to a patent, but it was made the duty of the Surveyor-General to cause all private land 831*] *claims finally confirmed to be accurately surveyed, and to furnish plats of the same; and the provision was that a patent should issue to the claimant, upon his presenting of the General Land Office an authentic certificate of such confirmation and a plat or survey of the land, duly certified and approved by the Surveyor-General. Such was the legal effect of a final confirmation of a private land claim under the act of Congress first passed to carry the treaty of Cession into effect; and such also was the legal course of proceeding under that act to procure a patent. 5. But authority was conferred upon the district courts for the northern and southern districts of California, under the 2d section of the subsequent act, to which reference has been made, upon the application of any party interested, to make an order requiring any survey of a private land claim, within their respective districts, to be returned into such court for examination and adjudication; and if, upon the hearing of the allegations and proofs, the court should be of opinion that the survey and location were erroneous, the court, in that event, was authorized to set it aside and annul the same, or to correct and modify it. Proofs are to be taken, and the parties have a right to be heard, and thereupon the court is required "to render judgment thereon." Survey of the tract in this case was made by the Surveyor-General, and on the 7th day of June, 1859, the court, on motion of the claimants, made an order directing the plat of the survey to be returned into court. Whereupon the claimants filed three exceptions to the survey, which in substance and effect are as follows: (1) That the survey was not made in accordance with the decree of confirmation, (2) that, according to the decree of confirmation and the evidence in the case, the northern and II. 1. Appellants insist, as a primary proposition, that the boundaries of the tract, as given in the decree, are so indefinite and incongruous that the decree cannot be carried into effect; and consequently that they have a right in this proceeding to prove the extent of the tract as formerly occupied by the original claimant, so that the court may determine the true location and correct the errors in the decree of confirmation. But no such authority is to be found in the act conferring jurisdiction over the surveys of private land claims, nor in any other act of Congress upon that subject. Survey is required of all private land claims finally confirmed. Such claims are required to be accurately surveyed, which is equivalent to a requirement that the survey, where the decree of confirmation is by metes and bounds, shall conform to the decree. Private land claims, such as are recognized in that act, are those which arise by virtue of a right or title derived from the Spanish or Mexican government. Every person claiming such lands in California was required to present his claim to the land commissioners for adjudication, and the provision was that all land, the claims to which should be finally decided to be invalid, and all lands the claims to which should not have been presented to the commissioners within two years from the date of the act, should be decreed, held and considered as part of the public domain. *2. Confirmed claims only were re- [*833 quired under that act to be surveyed, and it is only the surveys of such claims that the district court, under the 2d section of the subsequent act, is authorized to order into court for examination and adjudication. Confirmation must precede the survey which is made subject to such an order, and if the decree of confirmation is so indefinite and incongruous that it cannot be executed, then it is void and of no effect, and the claim to the land stands upon the same footing in legal contemplation as a claim which was never presented to the commissioners for adjudication. Nothing can be plainer than the proposition that a decree of confirmation under that act, which is in itself void, can |