Valentine

This is an action brought to recover possession of land under section 738 of the Code of Civil Procedure.

Plaintiff claims title derived from the heirs of Juan Read, who received a grant from the Mexican government. His claim was presented to the board of land commissioners, and by them confirmed. Patent issued to the confirmees February 25, 3885, and this action was commenced February 21, 1890.

This appeal is from an order denying defendants’ motion for a new trial made upon a statement of the case. The statement contains the following:

“ It appeared from other documentary evidence introduced that all of the right, title, and interest of John Read, Hilaria Read, and Ynez Read in the land described in the complaint herein had. vested in the plaintiff before the commencement of this action.

“ It was admitted by all of the parties to the action that all of the land described in the complaint in this action lies, and is included, within the boundaries by courses and distances as given in said patent, and as surveyed and delineated on the plat attached thereto.

“ It was admitted, on behalf of the plaintiff, that all of the land described in the complaint lies between the line of…

with whom concurred Van Fleet, J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 26th of July, 1894:

I dissent from the order denying a rehearing of this cause, and from the judgment of the Department. The district court had jurisdiction to hear exceptions to the Mathewson survey, and to confirm it, independent of the act of Congress of 1860. It had this jurisdiction by virtue of the fact that the decree confirming the grant was its own decree, and not, as in the case of United States v. Sepulveda, 1 Wall. 104 , the decree of the land commission. This case also differs from the Sepulveda casein the important fact that the grant was not a floating grant within extensive and indefinite boundaries, but was a grant of a tract with specific boundaries, and, therefore, peculiarly and appropriately subject to definite location by the court according to the doctrine of United States v. Fossatt, 21 How. 445 , and the cases therein cited. The Fossatt case was cited in the Sepulveda case, and so far from overruling it, the court took especial pains to set forth the distinction upon which they held that in the Sepulveda case the district court…