Foss

Upon the former appeal in this case ( 78 Cal. 158 ), the cause was remanded, with directions to the court below “to find on the testimony already introduced, and such further testimony as may be introduced by either party, whether or not the land in suit was, on the third day of April, 1871, within the exterior boundaries of the rancho San José as granted by the Mexican government, and on such findings to enter judgment.” In pursuance of this direction, the court, upon such evidence as was offered upon this issue at the subsequent trial, found “ that the land in suit was, on the third day of April, 1871, within the exterior boundaries of the rancho San José as granted by the Mexican government,” and rendered judgment for the defendant. Plaintiffs moved for a new trial, and from the order denying their motion, as well as from the judgment, they have appealed to this court.

It is insisted upon the part of the respondent that this court, by the following language, used in its opinion upon the former appeal, viz., “What the exterior limits of such granted rancho were must be determined by the expediente of the grant issued by the Mexican government, including petition, diseño, and…

I dissent, and adhere to the opinion rendered in Department, February 2, 1891, affirming the judgment. ' On the former appeal ( 78 Cal. 158 ), this court reversed the judgment, with directions to the court below to find on the one issue whether the land in contest was within the exterior boundaries of the rancho San José as granted by the Mexican government; and it stated certain principles by which the lower court should be governed in determining that issue. The court below followed those directions and was governed by those principles, and found that said land was within *204 said boundaries; and I do not think that the evidence was insufficient to support that finding.

It may be the law that the exception in railroad grants applies only to Mexican grants, which expressly designate a certain quantity of land within larger exterior boundaries; and it may be that in other cases where the boundaries named in the original grant are uncertain and vague, although the grant has been in good faith claimed, possessed, and recognized up to certain lines for more than a quarter of a century, still the, railroad grant will take all that is excluded from the final United States patent. The…