Baldwin, J., concurring.

These were actions of ejectment, to recover the possession of two lots, situated in the city of Sacramento. By'agroemcnt of parties, they were tried together. The plaintiff deraigns his title from John A. Sutter, to whom a grant was issued by the Mexican Governor, Juan B. Alvarado, in June, 1841, and the principal questions raised by the record are : first, whether the grant confers title sufficient to support the action of ejectment; and, second, whether parol evidence is admissible in explanation of its boundaries, and to fix the location of the land granted.

The original grant to Sutter was destroyed by fire in 1851, and a proved copy was read in evidence. The authority of the Mexican Governor to make this grant, was not denied on the trial; nor was any question raised as to the regularity of the proceedings upon which it was issued; but it was urged, as objections to its introduction in evidence, first, that it was imperfect, inchoate, and incomplete; and, second, that it does not include the premises in controversy.

The instrument does not confer a mere permission to occupy the land described therein, but in terms grants the land itself. After reciting that Sutter has petitioned, “in conformity with the law of the 18#A of August, 1824, and regulations of the 21s# of November, 1828,” for eleven leagues of land for his benefit, and that of twelve families, and referring to “ his good conduct and other qualifications required in such cases,” and to “his great efforts, his constant firmness, and patriotic zeal,” in favor of the institutions of the country, it proceeds to state that the Governor, in the name of the Mexican nation, and in conformity with the powers conferred upon him, has “ granted ” to Sutter, “by these presents,” for himself and colonists, “the said land named Neio Helvetia,” subject to the approval or disapproval of the Supreme Government, and the Departmental Junta, upon certain conditions; and in its concluding clause the instrument states that the Governor, “holding this title to be firm and valid,” directs a note of it to be taken in the proper book, and its delivery to be made to the party interested, for his protection.

The words of this instrument are plain. They import a conveyance of the land in full property, subject, indeed, to be defeated by the subsequent action of the Supreme Government and Departmental Assembly. The clauses against the obstruction of the highways, and the navigation of the streams, are not properly conditions, but reservations in favor of the public. The condition as to the maintenance of the Indians of the different tribes in their possessions, and the conditions of the regulations of ¡November 21st, 1828, requiring the cultivation and occupancy of the land with families, are necessarily conditions subsequent, which did not prevent the estate from becoming vested eo in *615 stante with the delivery of the grant, and for a non-compliance with which the estate could only be divested by the action of the government. The grant to Sutter does not contain the conditions as to the settlement and occupancy of the land with families, to which empressario grants were subject by the regulations of 1828. This omission may have arisen from the fact stated in the petition of Sutter, and which must have been known to the Governor, that he had already established himself, “ accompanied by some industrious families,” upon a portion of the land for which he petitioned. The object of the decree of 1824, and the regulations of 1828, was the settlement of the vacant lands of the republic, and, for that purpose, grants like the one to Sutter were subject to the conditions of cultivation or occupancy, with a stipulated number of families, which it would be unnecessary to insert when such cultivation or occupancy by the petitioner already existed. But it is immaterial whether we consider these conditions as intentionally omitted or as annexed to the grant by force of the regulations. They are conditions subsequent, for the non-performance of which the estate might have been defeated by proceedings of the government to that end; but until such proceedings were had, and a forfeiture declared thereon, the estate remained in the grantee. Under the Mexican law, as under the common law, an estate granted by the government could not afterwards be divested upon mere allegations or surmises. Some formal and regular proceedings were requisite. Under the Mexican law, they had their inception in what is termed a denouncement, by a party desirous of acquiring the land. When the denouncement was made, an investigation was had whether or not the conditions had been complied with, or so disregarded as to authorize a declaration of forfeiture. Mo re-grant was made upon a mere allegation that the condition of the former grant had not been performed, without an inquisition as to the fact.

In the case of Sutter, no denouncement was made, nor were any steps taken by the government indicating any intention to forfeit the land, nor is there any evidence of any such breach of the conditions to his grant, on the part of Sutter, as would have authorized a forfeiture, had proceedings to that end been instituted. So far, then, as these conditions are concerned, they did not affect the title—that passed to Sutter, upon the delivery of the grant.

Mor did the clause subjecting the grant to the approval of the Supremo Government and Departmental Assembly prevent the title from passing. That approval was not a condition precedent to the vesting of the title. By the first article of the regulations of 1828, the authority to make grants was lodged solely in the Governor of the Territory. It was not shared by him with the Departmental Assembly. That body possessed no power to *616 make any grant. Its power was restricted to approval or disapproval of the grant made. After its action, whether of approval or disapproval, it became the duty of the Governor to forward the necessary documents, with the report of the territorial deputation, to the Supreme Government. Until the approval of " the Supreme Government, the grant was subject to be defeated. With such approval, it was discharged of the defeasance, and became definitively, that is, finally, valid, and passed the estate in the land to the grantee beyond even the power of government to divest, except by proceedings to work a forfeiture for breach of its conditions subsequent. The instrument in evidence is the “ document ” mentioned in the eighth article of the regulations, required to be given by the Governor, to serve as a title to the party interested, in virtue whereof possession was to be had. It is the document given upon obtaining the information mentioned in the third article, and after “ acceding ” to the prayer of the petition, as specified in the fourth article, and the only document which the Governor was ever required to give, and is the one upon the approval of which the grant was to be held definitively valid. This is the view taken by Mr. Commissioner Thornton, in his opinion in the Cruz Cervantes case, and by Mr. Justice Heydenfeldt, in the case of Vanderslice v. Hanks; and this view appears to us to be correct upon a consideration of all the regulations. W e are aware that Mr. Chief Justice Taney holds a different view in the Fremont case. He regards the eighth article as referring to a document intended as evidence that the conditions annexed to the grant had all been complied with. “ It is not,” ho says, “ required in order to give him a vested interest, but to show that the estate conveyed by the original grant, upon certain conditions, is no longer subject to them; and that he has become definitively the owner, without any conditions annexed to the continuance of the estate.” ( 17 Howard, 560 .) It is immaterial for the decision of the present case, whether we adopt the construction of Mr. Commissioner Thornton and Mr. Justice Heydenfeldt, or of Mr. Chief Justice Taney, for they all hold that the original grant is the one by which the estate is vested.

As we have stated, it was the duty of the Governor, and not of the grantee, to submit the grant to the Departmental Assembly, and afterwards, with its report, to the Supreme Government. Any neglect or refusal of the Governor to make such submission could not impair the right of the grantee to the land granted ; nor could that right be impaired by any action of the Governor when the grant had been once made by him in conformity with the decree of 1824, and the regulations of 1828. These regulations prescribe the manner in which grants should be made, and the cases in which his authority could bo exercised. Once exercised, and the power of the Governor over the land granted passed. He could not recall or revoke his grant. His further *617 duty consisted in its submission to the Departmental Assembly and the Supreme Government. Until such submission, and the action of the government thereon, the definitive validity of the grant would remain suspended, and no other consequence could follow. Upon no principle of law or equity could the neglect of the Governor to discharge his duty operate to divest a party of an estate already vested in him.

In the present case, there is no evidence that Governor Alvarado ever forwarded the grant to Sutter to the Departmental Assembly, or to the Supreme Government, or of any action by either the Assembly or the government thereon; but the long occupation of Sutter of land claimed under his grant, and the frequent recognition of his title by the Mexican authorities, in their official documents, raise a strong presumption that the grant had the approval of both the Assembly and the Supreme Government. *

The views we have expressed of the conditions annexed to the grant of Sutter, and of the provisions subjecting it to the approval of the Supreme Government and Departmental Assembly, are in accordance with the decisions of the Supreme Court of the United States in the Fremont and Beading cases. The grants in those cases differ from the one to Sutter, in being grants for the benefit of single individuals, and not empressario grants, but the same principles of construction are applicable. In both of those cases the grants were subject to conditions and to the approval of the Departmental Assembly, and neither had received such approval. And the Court held the conditions subsequent, and the submission, the duty of the Governor, and not of the grantees; and that the neglect of the Governor only operated as a suspension of the definitive validity of the grants. In the Reading case, ( 18 Howard, 7 ,) Mr. Justice Wayne, in delivering the opinion of the Court, uses this language:

If the approval of the Departmental Assembly and the Supreme Goverment were a condition precedent, then no title whatever passed by the grant of the Governor. The grant would, in that case, be only the first movement towards a title, and be no more operative as a conveyance than a bill passing only one house of the Legislature would be operative as a law. It would not even confer an equity, as that term is understood in our system, or constitute a claim upon the bounty of the government. The consequences of such a position would be startling. A great portion, probably the greater portion, of the lands held in this State, are claimed under grants which are subject to a similar condition of approval by the Departmental Assembly, or by the Supreme Government, and if such approval were essential to the passing of title, these lands could not be taxed, for the fee and the entire beneficial interest would be in the federal government, and its property we are inhibited from taxing. They could not be sold under execution; they could not pass by bargain and sale; they would not descend to the heir; nor could they be subject to administration as assets, as real estate is, in certain cases, under our law. It would be impossible to estimate the consequences of confusion and injury to which such a position would lead, carried to its necessary and legal results. But such approval," as we have already’shown, was not a condition precedent. The title passed to Sutter by his grant; an estate vested in him, subject, it is true, to be defeated by the action of the Mexican government by direct rejection, or, in case of non-compliance with its conditions, by proceedings to that end. *619 Under Mexico, it might have been submitted to the Territorial Assembly, reported against, forwarded to the Supreme Government, and been there rejected; or, in case the conditions of the regulations, as to cultivation or occupation of the land, had not been complied with, it might have been denounced, and, upon proper investigation, the estate declared forfeited. But, until one or the other of these proceedings had taken place, the title continued in Sutter unimpaired. Neither of these proceedings were had under the Mexican government, and, therefore, at the date of the cession of California to the United States, his title remain 5d in full force. And that title was in n-o respect impaired by the treaty of cession. By the law of nations, independent of treaty stipulations, the inhabitants of a ceded territory retain all rights of property. “Had Florida changed its sovereign,” says Mr. Chief "Justice Marshall, in U. S. v. Percheman, ( 7 Peters, 86 ,) “ by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. * * A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him. Lands he had granted wore not his to cede. Neither party could so understand the cession; neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. The cession of a territory by its name, from one sovereign to another, conveying the compound idea of surrendering, at the same time, the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.”

Independent of the protection afforded by the law of nations to the property of the inhabitants of a ceded territory, the government of the United States, by the treaty of Guadalupte Hidalgo, expressly stipulated that those citizens of the Mexican Republic, in the territories ceded, who might elect to become citizens of the United States, should be incorporated into the Union, and be admitted at the proper time, to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution, and in the meantime be maintained and protected in the free enjoyment of their liberty and property, (Article 9;) and all those citizens of the territories are considered to have thus elected, who, within one year after the exchange of ratifications of the treaty, did not declare their intention to retain the character of Mexicans, (Art. 8.) The stipulation for maintenance and protection, even if such maintenance and protection were not obligatory, independent of the treaty, operated until the admission of California as a State into the Federal Union; and, as a matter of course, since such admission, *620 those citizens are entitled to the same protection in their property which is afforded to other citizens of the United States. It is true, that the United States, in their political capacity, have succeeded to all the rights of Mexico, in respect to the grant to Sutter, so far as the Constitution and laws of their government allow the exercise of such rights, but it is equally true that rights and powers inconsistent with the principles of their Constitution and government can neither be taken nor exercised. “ It can not be admitted,” says the Supreme Court, in Pollard’s Lessee v. Hagan, “that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives ; and much less can it be admitted that they have the capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and laws of its government, and not according to those of the government ceding it.” ( 3 Howard, 225 .)

The Supreme Government of Mexico possessed the power to reject, upon its own mere volition, an empressario grant to one of its citizens, made by the Governors of its departments, under the colonization laws, but it may be, questioned whether this power, which the government exercised to control the action of its subordinate officers, passed to the government of the United States.

The only mode of avoiding an estate under the Mexican authorities, other than by the direct rejection of the Supreme Government, was, as we have already observed, by proceedings having their origin in what is termed a denouncement, which is entirely unknown to our laws. It may, therefore, be a question whether any right of defeasance or forfeiture, which may have existed in the Mexican government, in respect to the grant to Sutter, ever passed to the United States, and whether the grant did not, by operation of the treaty of cession, become discharged of all conditions. It is not necessary, however, to pass upon this question; it is sufficient for the disposition of the present case that the title of Sutter, under his grant, was in no respect impaired by the treaty. Under the former government, Sutter was entitled to the possession of the land under his grant; indeed, the conditions of cultivation or occupancy attached to it .by the regulations of Hovomber, 1828. To avoid a denouncement, and a possible forfeiture of his estate, he was required to cultivate or occupy the land, and its possession was his right, which could have been enforced under the Mexican government. It was- a right to the use and enjoyment of property, and as such was guarantied by the stipulations of the treaty. It accompanied his grant, and, like any other right of property, may be enforced in our Courts. The grant conveying, as we have seen, the title, carries with it the right to the possession, use, and enjoyment of the land, until, by the appropriate action of the general govern *621 ment, the estate of the grantee is defeated—admitting that it is competent for the government to provide for defeating it. It follows, that the action of ejectment will lie directly upon the grant to recover the land, or any portion thereof, embraced within its boundaries.

The decisions of this Court in the cases of Leese and Vallejo v. Clark, and Vanderslice v. Hanks, ( 3 Cal. Rep., 17 , 47,) are in direct conflict with this opinion. Those decisions were rendered previous to the decisions of the Supreme Court of the United States in the Fremont and Reading cases, and were based upon the opinion that the approval of the Departmental Assembly was a condition precedent to the vesting of the title in the grantees. The decisions in the Fremont and Reading cases led to a reconsideration, by the late Chief Justice, of the views advanced by him in the cases in 3 Cal. Rep., and in Gunn, Administrator of Sheldon, v. Bates, decided at the July Term, 1856, ( 6 Cal., 263 ;) he virtually abandoned them, not as unsound, but as overruled by the Supreme Court of the United States.

It is objected, by the defendants, that the grant to Sutter contains more than eleven leagues of land, and that the title did not pass, because the land intended to be granted was not segregated from the public domain. It is a sufficient answer to this objection, that there is no evidence in the record, and none was offered on the trial, to show that the quantity embraced within the limits of the grant exceeds eleven leagues, after excluding the lands inundated by the currents of the rivers ; and it will not be contended that the Court will presume an excess in quantity in the absence of all proof. The clause in the grant reserving any surplus which might be found upon measurement, for the benefit of the nation, is the usual clause inserted in all grants issued by the Mexican governors. They were inserted to prevent mistakes or impositions as to the quantity granted. By the regulations of 1828, the applicant for land was obliged to accompany his petition with a map, “ describing, as distinctly as possible, the land asked for,” and the requisite information as to the land and applicant having been obtained, the Governor was required, in the exercise 'of his discretion, to “accede or not,” to the petition. The grant followed the map in the general description of the land, without further survey, and to prevent mistakes or impositions as to the quantity, it was customary to insert a clause, reserving any surplus that might be afterwards found within the designated boundaries, upon a survey and measurement by the officers of the government. But until it was legally determined, by such survey and measurement, that there was a surplus, no individual could complain. The government alone could determine and set apart the surplus, and until its action in the matter, the right of the grantee remained good to the possession of the entire tract within the designated boundaries. “ On the *622 other hand,” as is said by Justice Heydenfeldt, in Vanderslice v. Hanks, “if it was allowed (when the government did not complain) to any individual to enter upon the granted land and decide for himself that there was a surplus within the granted boundaries, to which the grantee was not entitled, it may readily be seen that by a combination of two or more such trespassers, the grantee might be deprived of all his land; for if one was allowed to resist his right on the ground of surplus, so might each one of many, after entering, contend and insist that he alone held and claimed the surplus; and thus the party who is the real donee of the government, and upon whom she designed to bestow her favors, would be stripped of his possessions for the benefit of others for whom no such provision was intended.”

If the grant to Sutter had not designated any boundaries, or any point where the measurement of the land granted could commence, there would be great force in the objection of the defendants. The cases usually cited as authority, that a want of segregation of land granted, from tire public domain, prevents the title from passing, are those iii which neither boundary or description of any kind is given. But it is unnecessary to determine the question, as it does not properly arise in the present case.

The second objection to the introduction of the grant, was, that it does not include the promises in controversy.

Whether or not the premises are included within the grant, is a question of fact, to be submitted to the jury, and the only question for this Court to consider is, whether the parol testimony of Sutter and Yiogot, in explanation of the boundaries, and to fix the location of the land granted, was admissible. The language of the grant, as to the boundaries, is as follows :

As appears by this description, the plat, or map, which accompanied Sutter’s petition, is referred to, and thus becomes a part of the instrument, for the purpose of identifying the land, and fixing its location.

The only object of the map was to identify the land, and enable the Governor to make the requisite inquiries, as to whether it was vacant or not, and thus within his power to grant; and, for the like purpose of identification, is the map referred to in the description, and it is, for that purpose, to be regarded as a part of the grant itself, as much so as if incorporated into it. *623 (Davis v. Ramsford, 17 Mass., 207 ; The Proprietors of the Kennebec Purchase v. Tiffany, 1 Greenl., 220; Thomas v. Hatch, 3 Sum., 170 ; 2 Hilliard, 348.)

In his petition, Sutter refers to the fact that he had “ established himself,” with the approbation of the Governor, upon the land he then occupied, and to the flattering condition of “his establishment,” and solicits, “in order to aggrandize his enterprise,” eleven leagues,'In the “ establishment named Hew Helvetia,” in accordance with the land designated in the accompanying plat.

The Governor, in his grant, refers to the petition, and concedes “ the said land, (el terreno referido,) named Neto Helvetia.” On examining the map, wo find the place where the city of Sacramento now stands marked by the figure of a Port, and designated as “(Estalla de Nueva Helvetia”—establishment of How Helvetia. It is difficult to resist the conclusion that the petition and grant both refer to the locality thus designated on the map; and this conclusion is strengthened, by finding, a few miles south, a line drawn across the map, marked “ lindero,” (boundary,) .which was evidently intended to designate the southern boundary. This line is also marked “ latitude north 38° '41' 32".” In the grant, the southern boundary given is the parallel of 38° 49' 32" north latitude, differing from the latitude marked on the map by the figure 9, in the number of minutes, instead of the figure 1, a mistake which might easily be matte in drawing the grant. Of the two sets of figures, there is a difference in only one—a singular fact, if one was not made by attempting a copy of the other. It is not probable that the Governor, in drawing his grant, took any other designations of parallels of latitude than those he'found on the map. * We have, then, as the southern boundary, the lino marked “ lindero the Sacramento River constitutes the western boundary; and the Three Peaks, and the parallel of 39° 41' 45" of north latitude the northern boundary. The difficulty remaining is with the eastern boundary, which is described in the grant as “ the margins of Feather River.” The language is peculiar. Feather River is not intended as the boundary, for it would be so designated ; it is the margins of that river—land extending along the stream. The language was used to indicate the general limit and course of the eastern line. It does not necessarily mean that the eastern line must terminate with the length of the *624 stream, and cease when the Feather Biver loses itself in the Sacramento. * So far as this boundary is inconsistent with the other calls of the grant and map, which are more definite and fixed, it must yield. The position of the line marked on the map, as the southern boundary, is too accurately determined, by reference to the American Eiver and the Fort, and the establishment of New Helvetia and the lagunas, to be mistaken. These are fixed and permanent objects, which can not yield to the vague designation of “ margins of Feather Biver.” It matters not by what parallel of latitude that lino is designated; whether by the true parallel, or by that of the Sandwich Islands; it is the j>osition of the line, not its designation, which determines the boundary. But it is said that the parallel of latitude by which this line is designated falls near the. junction of the Sacramento and Feather Rivers. If this be so, it would not follow that the line marked on the map must be given up; it would only require explanation, and parol evidence is admissible to explain why it was designated by a wrong parallel of latitude. Besides, if, taking the grant and map together, any portion of the description must be rejected, reference will be had to the circumstances under which the grant was made, and the intention of the parties, and parol evidence is admissible^ in such case, for that purpose. That portion will be rejected, and that construction adopted, which will give effect to the intentions of the parties. If the line of true parallel of latitude, cutting the Rivers Sacramento and Feather at their junction^e adopted, the map must bo entirely thrown aside, the cession of the establishment of New Helvetia abandoned, the words “margins” of Feather Biver rejected as surplusage, and the intentions of Sutter, as expressed in his petition, and of the Govern- or, as indicated by the language of the grant, be entirely disregarded. But, by adopting the line marked as “ lindero,” a few miles below Sacramento, a's the true southern boundary—the map and grant are considered together—New Helvetia is retained, and the intentions of the grantor and grantee fully carried out. The evidence of Sutter and Yioget is admissible under the circumstances of this case. Their explanations remove nearly all the difficulties arising from inaccuracy of description. They identify the southern line as the one marked on the map; they show the cause of the error in the designation of the latitude, not only of the southern but of the northern line; the circumstances under which the land was petitioned for, and the grant made, and the intention of the parties; and they fix the location of New Helvetia. † That their evidence was admissible, and not subject to the objection urged by the defendants counsel, we will cite only a few authorities. In White v. Eagan, (1 Bay, *625 South Car. Rep., 247,) the land in question was described as bounded on Sir John Calleton on the north, and one Cox to the south, and parol evidence was admitted, to explain the situation of the land, contrary to the face of the deed, and to show that it was really bounded on Cox on the north, and on Sir John Calleton on the south. In Middleton v. Perry, ( 2 Bay, 539 ,) the land in the grant was described as situated on Gedar Greek, waters of Broad River. The defendant offered to prove a mistake made by the surveyor who originally surveyed the land, in saying the land lay on Cedar Creek, waters of Broad River, when, in fact, it lay upon Gedar Greek, waters of the Gatawba River, and that there were two creeks by the name of Cedar Creek—one emptying into Broad River, and the other into the Catawba River; but the presiding Judge refused to allow testimony “to contradict the face of the grant, under the great seal,” and the plaintiff had a verdict. The Court of Appeals, on a motion for a new trial, said : “ They had no doubt but a new trial should be granted, on the ground that parol testimony should have been admitted, to have explained any mistake in the location of the land mentioned in the grant, under which defendant claimed, and that such explanation was not repugnant to the Statute of Frauds, as had been contended for by the plaintiff. That our Courts of Justice had frequently permitted witnesses to be swórn, in order to rectify any mistake in the location of land, or even to explain deeds, in cases of ambiguity or uncertainty, and the case of White and Eagan, quoted in the argument, was strong to that purpose.”

In Clairmont v. Carlton, (2 New Hamp., 378,) it was held that “the identical monument or boundary referred to in a deed, is always a subject of parol evidence; and, when disputed, it is always left to the jury to say which was the actual monument intended.”

In Steele’s Heirs v. Taylor, ( 3 Marsh., 226 ,) it was held that a mistake in the calls of a patent may be corrected by reference to the plat and certificate of survey, which is evidence of the original position of the corners, and when they can be ascertained, they form the boundary, though variant from the description contained in the patent. In Alexander v. Lively, (5 Monroe, 160,) the patent and certificate of survey both called for eighty acres, included in a figure of five lines. The certificate agreed with the patent, but in examining them it was found that one call was opposed to another, and the defendant insisted that the patent was void, for uncertainty of description. The original plat of the survey differed from both patent and certificate, by representing a figure of six lines, and the plat was held proper evidence to show the position of the land. “We, therefore,” say the Court, “ conclude that the plat in this case must be held sufficient, under the circumstances, to supply the omitted *626 course, and to correct the silence or the omission of the certificate and patent, and that the Court- below erred in refusing to supply the omitted line, and sustain the patent.”

In Chapman v. Bennett, ( 2 Leigh, 357 ,) the lessor of the plaintiff-brought ejectment for land lying in Wood county, under a patent from the Commonwealth of Virginia, issued in April, 1785, in which the land granted was designated as lying in the county of Monongalia. The defendant offered to prove, by the Act of the Assembly- of June, 1784, for dividing the County of Monongalia, and establishing the County of Wood, and other evidence, that at the date of the patent no part of the present county of Wood lay within the boundaries of the county of Monongalia. But the Court, allowed the grant to be read in evidence, holding that it was competent for the plaintiff to prove that the land in Wood county was the same land granted by the patent, notwithstanding the error of the patent as to the county it lay in.

In Page v. Scheibel, ( 11 Mo., 187 ,) the concession described the land in question as in Grand Prairie, and bounded by Little River. Proof was admitted to fix the location of the land, and it appeared that Grand Prairie did not, in fact, touch Little River, and it was held that the boundary of Little River must be rejected. The Court say : “ The concession thus referred to described the lot, also, as in the Grand Prairie common fields, and also states that it lies between the Widow Marcschal and Little River. JSTothing is known, or no information is given on the record, as to the existence or residence of the Widow Mareschal, but the lot in controversy does not touch Little River. There is evidence to show that the Grand Prairie common fields did not, in 1768, touch any part of Little River. If this be so, it is clear that Little River, although a material boundary, should be rejected. The concession and confirmation must not fail because there is an impossible call in the concession.”

In McIver, Lessee, v. Walker, ( 9 Cranch, 173 ,) the patents called for land lying oh Crow Creek, describing them by course and' direction, and referring to a plot annexed, hieither the lines in the certificate of survey, or the patents, called for crossing Crow Creek, and, if run according to the course and direction given, would not include the creek or any part of it, or the land in possession of the defendant. But the plat annexed represented Crow Creek as passing through the tract, and the plaintiff requested the Court to instruct the jury that the lines ought to be run so as to include Crow Creek and the lands in the possession of the defendants. The instruction was refused, and the defendants had judgment. The refusal of the instruction was assigned as error, and the Supreme Court, Mr. Chief Justice Marshall delivering the opinion, held that the lines should be so run as to include both sides of the creek, and conform, as near as possible, *627 to the plat annexed to the patents; and the judgment was reversed.

In Lunt v. Holland, ( 14 Mass., 149 ,) the plaintiff derived his title from a grant of the Commonwealth of Massachusetts, in which the premises conveyed are described as a certain tract of land, lying in township number one, in the county of Cumberland, which was surveyed and laid out in April, 1789, by Samuel Titcomb, and is bounded as follows, viz.: “ Beginning at a hemlock tree standing by the south side of Biver Androscoggin,; thence south, etc., to another hemlock tree, also standing by said river; thence south-eastwardly, and bounding by said river to the first-mentioned bound; said tract containing 4880 acres, more or less.”

The land in controversy was an island containing about thirty acres, the river running on each side of it. In addition to the grant, the plaintiff introduced the deposition of the surveyor, Titcomb, with a copy of the survey referred to, by which it appeared, that he intended to include the island in question, and that he returned his survey to the agents of the State previous to the issuing of the grant. The survey was introduced in evidence, under the objection of the plaintiff, who contended that the tract of land granted must be limited by the boundaries in the grant, which, being definite and fixed by monuments, could not be extended by reference to the survey, and that by them the island was necessarily excluded.

The Judge instructed the jury that, as there was direct reference in the deed to the survey, the island should be considered as within the descrij)tion of the land in the deed, and the plaintiff had a verdict subject to the opinion of the whole Court, on the instruction of the Judge, and the admission of the deed, deposition, and survey. On the motion for judgment, the counsel for the defendants contended that the land was described in the grant, and bounded by visible and known monuments, and by these the island in question was excluded; that there was no ambiguity in the language, and no construction ah extra should be admitted; that “bounding by the river ” must intend that edge of the river on which the hemlock trees stood, or those trees could not bo any part of the boundary; that, at the furthest, the land granted should be held to extend only to the thread of that branch of the river on which the trees were standing; but the Court, in giving its decision, said :

In Conn. v. Penn., (1 Peters Circuit Court Rep., 511,) Mr. Justice Washington says: “ Ho gentleman of the profession, who is *628 at all conversant with land-titles, can be ignorant that the courses and distances laid down in a survey, especially if it be ancient, are never in practice considered as conclusive; but, on the contrary, they are liable to be materially changed by oral proof, or other evidence tending to prove that the documentary lines are not those actually run. How often have we known reputed boundaries, proved by the testimony of aged witnesses, and even by hearsay evidence, established in opposition to the precise calls of an ancient patent ? Such evidence has been constantly received, and distances have been shortened or lengthened without the slightest regard to the patent. The reason is obvious : it is not the lines reported, but the lines actually run by the surveyor which vests in the patentee the area included within those lines. The survey-returns, or the patent, is the evidence of the former; natural objects or reputation is, in almost all cases, the evidence in the latter. The mistakes committed by the surveyors or chain-carriers, more particularly in an unsettled country and wilderness, have been so common, and are so generally acknowledged, as to give rise to a principle of law as well settled as any which enters into the land-titles of this country, which is, that when the mistake is shown, by satisfactory proof, Courts of Law as well as Courts of Equity have looked beyond the patent to correct it.”

The principle to be extracted from these cases is this : that the lines actually intended by the parties, if they can be ascertained, are to control. The rules adopted in the construction of boundaries, are those which will best enable the Courts to ascertain the intention of the parties. Thus, preference is given to monuments, because they are least liable to mistake, and the degree of importance given to natural or artificial monuments, courses, and distances, is just in proportion to the liability of parties to err in reference to them. But they do not occupy an inflexible position in regard to each other. To hold otherwise, would be to give greater importance to the rule itself than to the reason of the rule. It may sometimes happen, in case of a clear mistake, an inferior means of location will control a higher. In Davis v. Rainsford, (17 Mass.,) it was held that, if on taking the whole description together, it would be more reasonable to suppose a mistake was made in the monuments referred to than in the measurement of the distance, where the two disagree, the measurement should govern instead of the monuments; and in that case a diagram or plot of the land was allowed to control the designation of the monuments. “ To this admeasurement,” says the Court, “ we are bound to adhere in order to effectuate the intention of the contending parties.”

In Norwood v. Byrd, (1 Richardson, 185,) it was held that, when on the face of a deed the intention to convey a particular tract of land is clear, but the description of metes and bounds is *629 upon a survey for the purpose of locating the tract ascertained to be erroneous, the description by metes and bounds will be rejected as surplusage, and the land located so as to cover the tract clearly intended to be conveyed.

In Falwood v. Graham, (Ib., 497,) the Court say: “ The defendant’s counsel is wrong in supposing that there is any difference in the rules of location, as laid down and enforced in the older or more recent cases. They all maintain that, in locating lands, we are to resort: first, to natural boundaries; second, to artificial marks; third, to adjacent boundaries; fourth, to courses and distances; but it has never been said that each of these occupied an inflexible position. It sometimes might occur that an inferior means of location might control a higher, when it was plain there was a mistake. As, where a tract of land is represented as lying on one great stream, and the artificial marks or other circumstances show that it lies upon another.”

Now, apply this principle to the construction of Sutter’s grant, and the difficulty which seems so insuperable to defendants’ counsel of including New Helvetia in the face of the boundaries specified, disappears. Besides, it may be well doubted whether Sutter’s establishment, at the period when the grant was issued, was not a more conspicuous object of attention, and better known, than the position of the mountains, or the course of the rivers designated. “In the construction of a grant,” says Hilliard, “the Court will take into view the attendant circumstances, the situation of the parties, the state of the country, and of the thing granted. So, if the terms of a deed are doubtful as to the boundaries.”

In 1841, all Northern California was an unexplored region, its geography little know.n, and it was occupied almost exclusively by tribes of roving Indians. Sutter was the first white man who made a settlement in the Valley of the Sacramento. To give to mountains and streams, whose relative position to each other was imperfectly understood, the importance in determining the location of the grant as would be given if the grant were issued at this period, would be to adopt a rule of construction subversive of the plainest principles of justice.

And on this subject, and the construction of grants in California, the observations of Mr. Justice Grier, of the Supreme Court, in the case of the United States v. Sutherland, ( 19 Howard, 364 ,) are eminently just and pertinent: “In construing grants of land in California,” says the Justice, “ made under the Spanish or Mexican authorities, we must take into view the state of the country, and the policy of the government. The population of California, before its transfer to the United States, was very sparse, consisting chiefly of a few military posts and some inconsiderable villages. The millions of acres of land around them, with the exception of a mission or a rancho on some favored *630 spot, were uninhabited and uncultivated. It was the interest and the policy of the King of Spain, and, afterwards, of the Mexican government, to make liberal grants of these lands to those who would engage to colonize or settle upon them. Whore land is plenty and labor scarce, pasturage and raising of cattle promised the greatest reward with the least labor. Hence, persons who established ranchos required, and readily received, grants of large tracts of country as a range for pasturage for their numerous herds. Under such circumstances, land was not estimated by acres or arpens. A square league, or “sitio de ganado may- or,” appears to.have been the only unit in estimating the superficies oil land. Eleven of these leagues was the usual extent for a rancho grant. If more or less was intended in the grant, it was carefully stated. Surveying instruments or surveyors were seldom to be obtained in distant locations. The applicant for land usually accompanied his petition with a deseño, or map,showing the natural boundaries or monuments of the’ tract desired. These were usually rivers, creeks,, rivulets, hills, and mountain ranges. The distances between these monuments were often estimated at about so many leagues, and fractions of this unit but little regarded. To those who deal out land by the acre, such monuments as bills, mountains, etc., though fixed, would appear rather as vague and uncertain boundary-lines. But where land had no value, and the unit of measurement was a league, such monuments were considered to be sufficiently certain. Since this country has become a part of the United States, these extensive rancho grants, which then had little value, have, now become very large and very valuable estates. They have been-denounced as enormous monopolies, princedoms, etc.; and this Court has been urged to deny to the grantees what, it is assumed, the former governments have too liberally and lavishly granted. This rhetoric might have a just influence, when urged to those who have a right to give or refuse. But the United States have bound ’themselves by a treaty to acknowledge and protect all bona fide titles granted by the previous government; and this Court have no discretion to enlarge or curtail such grants, to suit our own sense of property; or defeat just claims, however extensive, by stringent technical rules of construction, to which they were not originally subjected.”

Having disposed of the two principal questions raised by the record, wo proceed to consider the other errors assigned by the appellants to the ruling of the Court below, viz.: first, in its instruction to the jury; second, in its refusal to admit evidence ot abandonment of the premises by the plaintiff or his grantor; third, in its refusal to give the first instruction asked by the defendants; and, fourth, in its rejection of the tax-deed. The instruction given by the Court is as follows: “ If you believe, from the evidence, that the lots in controversy are embraced within the *631 boundaries of the map introduced before you in this ease, and that the map is a correct copy of the original map delivered to John A. Sutter at the time he got his grant from the Mexican government, the plaintiff is entitled to recover. You must take the grant and map together j and if you believe the land in this suit is within the grant, as explained by the map, you will find for plaintiff.”

The last clause qualifies the language of the preceding clause, which would otherwise have been liable to the objection urged by the defendants. Both clauses being taken together, the instruction is, that the land must be within the grant as explained by the map, and not merely within the boundaries of the map.

The plaintiff having proved title in his grantor, and afterwards in himself, there could be no abandonment by either, and the Court properly excluded all evidence on the point. The doctrine of abandonment only applies where there has been a mere naked possession without title. The right of the occupant originating in mere possession, may, as -a matter of course, be lost by abandonment. Where there is title, to preserve it there need be no continuance of possession, and the abandonment of the latter can not affect the rights held by virtue of the former.

The first instruction to the jury asked by the defendants, and refused, was as follows : “ If you find that plaintiff, or his grantors, or some of them, stood by and saw defendants making-valuable improvements, and did not interfere, nor give any notice of an adverse claim to the lots, then you are entitled to find for the defendants.”

The principle contended for by this instruction is, that silence on the part of the owner of premises as to his title may be urged by a trespasser, who is erecting valuable improvements upon them, as an estoppel against the assertion of the legal right of such owner. This would be extending the doctrine of equitable estoppel beyond all the precedents. That doctrine is based upon very different principles, and applies to very different cases, from the one at bar. It arises where one is directly influenced to his own injury, by the acts, declarations, or silence of another, in relation to the title of property, and is applied to protect against fraud on the one hand, and injury on the other. Silence becomes fraudulent only when the facts respecting the title are in the possession of one, and not of the other, and can not be easily ascertained, and they are concealed with a view of misleading—not where the facts are notorious, or can be easily ascertained, as by reference to the recorder’s office. There is no reported case which we can find whore silence could be urged as an estoppel by one acquainted with his own rights, or who had the means of ascertaining them. (Alexander v. Kerr, 2 Rawle, 90 ; Crest v. Jack, 3 Watts, 239 ; Carr v. Wallace, 7 Watts, 40 0; Robinson v. Jastin, 2 Penn., 22 .)

*632 If a paity, with the knowledge of, or having the moans of ascertaining, the title to real property, proceeds to occupy such property and. expend his money in improvements, he is not entitled to any relief in law or equity. He has no right to complain, because he has not been misled by any one, and if mistaken, it has been his own fault. The title to real property carries with it all the improvements. The owner has a right to the exclusive use of his property without molestation from any one. Whoever interferes with its use and enjoyment by him, is á trespasser, and the interference is none the less a trespass because followed by the erection of structures which are termed improvements. The instruction would permit one man to strij} another of his estate under the pretext of having improved it, unless notified of the title, although that title was notorious, or could be easily ascertained.

The defendant, Krause, offered in evidence a tax-deed of a portion of one of the lots in suit, which was rejected by the Court. It was executed to one Madden, by the sheriff, upon a sale for taxes for the year 1853, but is not under seal. The deed contains, in its recitals, an extract from the assessment-book, from which it appears that the property was not assessed either to the owner, occupant, or unknown owners; nor is its valuation stated, nor the amount of the State or county tax.

By the doctrine of the common law, the party claiming under a tax-deed must show that all the requirements of the law, from the first to the last, have been complied with. The officers of the government, from the assessment of the tax to the execution of the deed, are acting under a special power conferred by the law, and, as in every case of the exercise of 'a special power, they must keep clearly within the limits of their authority, or there will be no validity to their acts. That rule of the common law has been changed, by statute, in this State. Here, the deed itself is prima facie evidence of the conveyance of all the right, title, and interest, owned by the delinquent at the time of sale. The effect of this is to give to the deed itself the presumption that all the requirements of the law have been complied with, by which the title could vest, and to shift the burden of proof from the party who claims under the deed to the party who attacks it. The clause of the statute does not, however, dispense with the necessity of the officer reciting in the deed the authority under which he executes it. It has no validity, as an independent conveyance. Its effect in the transfer of property arises from the power conferred by the statute, and a strict compliance with its conditions; and the deed must bear on its face a reference to that power. If, in reciting the authority for the sale upon which the deed is given, it appears that some material requisition of the law has been omitted, the deed is void. In the present case, the recitals show that the property was not *633 listed and valued by the assessor. This is fatal to the deed. The listing and valuation of real estate for the purpose of taxation, is an essential pre-requisite to the validity of all subsequent proceedings. It is from the list made by the assessor, after it has been corrected by the board of equalization, that the auditor prepares the duplicate, which gives to the officer his authority to demand the tax, and to levy and sell the property of the delinquent.

If no valuation was placed by the assessor upon the property, none could be placed upon it by the board of equalization. The board may alter the valuation in order to equalize it, but can not place the valuation in the first instance. That is the duty of the assessor. In consequence of the neglect of the assessor, the duplicate would reach the officer without any valuation placed upon the property, and of course no authority would exist in him to levy upon and sell the property. We do not notice the want of a seal to the deed, because its absence has not been alluded to by counsel, and it is probably an omission of the copyist.

Judgment affirmed.

On an application for an extension of time to file a petition for a re-hearing, Field, J., delivered the opinion of the Court— Baldwin, J., concurring.

This is an application for an extension of the time to file a petition for a re-hearing. The application is based upon the affidavit of Mr. Weeks, that he has just been retained as counsel in the cases, and is unable to present the petition within the time prescribed by the rules of the Court. There is nothing in the reason assigned which entitles the defendants to any extension. These cases were submitted more than a year since, and elaborate written arguments were subsequently filed by the original counsel of the respective parties. They have been the subject of long and mature consideration by the Court. The questions involved in them are not new; they have been the subject of discussion with the profession for the last seven years5 they have attracted the attention of the ablest jurists of the State, and been placed before the Court, in every possible view, and it would be no disparagement to the learning and ability of the counsel to say that we think it highly improbable that he could throw sufficient new light upon the questions to induce us to change our deliberate judgment.

The counsel of the plaintiffs, and one of the counsel of the defendants, have repeatedly called the attention of the Court to the cases, and invoked a decision. The cases were placed on the calendar for the present term, like all other eases previously submitted, to be argued only in the event they were not decided before they were reached, and, like a great number similarly situ *634 ated, they were so decided. Ho oral arguments could have been more elaborate or perfect than the written arguments on file.

Application denied.

See note D.

See notes A and B.

In the case of Charles Covillaud et al. v. The United States, before the Board of Land Commissioners, in which Covillaud et al. claimed under the grant to John A. Sutter, the deposition of Governor Juan B. Alvarado was taken. In his deposition, Alvarado states that, when he made the grant to Sutter, he compared it with the map which accompanied Sutter’s petition; that Sutter was present, and gave him the points, and showed him. the degrees of latitude; that he (Alvarado) did not precisely understand the latitude, but he put the degrees of latitude in the grant as they were marked on the map.

See note C.

See note D.