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Show 122 REPORT OF THE CO~ISSIONER OH' INDIAN AWFAIRS. B B I ~ C 111 I911 nnd I>? tibe p vkrvnr 118 nlalltlg the voncerrion I,, him. If Ihl,rcrer, there us8 any retnaininb. iv.rcreqt m rnld Rco I ? virrltv 01 tlir gm.811 to b ~mt,h e pre~rntr lelol~!lr 1~asauvt:e~Irwt i that inere81 hv vl r~l tU. aI 'oxtvrYence nwie w him bv haid Plroou the t l _ i ~ ~ d~ay~ 0~1 J~ Bi l~, U. . B ~ 1852. This r;ottveyanoeis glven in evidence. I think, however, th%t the right of the prwont claimant must bedeterminedentirely by themerits of the Case based on Mioheltorees's grant to him. This mant was r.o. ved bv the de~artmont81s s semb.l~ M s.v 21..184 6. The testimony of Andre8 Pioo h w s thst Warner was living with his iamlly on the place in the fall of 1844 and cultivating portions of the land. 818 residenoe on tho plsce appears to have been continued until 1%1, when the Indians burnt hie buildillas and dwtroved his ~tock. Since thst time his meurntion has been continued bv his servants. In the p n t t he description of theland petitioned icr is such as M embrace theentire ~ s l l e cya lled 8an J& 8s laid down on the map constituting a part of the eapediente, giving well.defin~d land-marks and boondaria, whim the witnesses testify are well-kown objects. The valley h ver.y irre.aul ar in shane and a surrounded by. hi.rh hills. Juridied measurement was required and the quantity of six square leagues was gmnted, bat as the msarurelnenl wa* nerielolt~iucdi l ir irn~ul&oIlo ciulermine u h c 1 h e r ; h e~~u t rics earitled to bold fL~c01ilcI. rrlltihe\ dci rlbrd 118 t l egmnt , u i n a thesealrglren on the derillo refened loin the . IRI ~ I . rl.ec~llanrini nviuded ill llrc ~ r cmi vvr a n not cxceed tir wllr%rclram~wuiland The teshmony of the witnesses who were lntenogated on the subleot eatmate II variouslv, some mon and aomr lcs, than the tqua~.tity eotrrded. 01. an rram:nelion ui the suholcc&r, bourver. we sre itlelil~nlt o tile uplnlon thnl rhe lctitloner sholrld imae a :o!lf,rmntIonri 111, ltrrmists accord. ~ D tPo llxe ci~seril.tiouc anta>aedl n the r rxnr lu him, and a d e em \nI1 be entered aceurdmgly. Upon that report the title was confirmed, which, as heretofore stated, was approved by the district court, and thereupon a patent waa issued. From these papers the following appears: The grant to Pico was made subject to the condition that he should "not molest the Indians that thereon may he estab-lished." No such condition was attached to the subsequent grant to Warner. On the contrary the report of the justice of the peace was that the land had been for two years vacant and abandoned; that there was some property rights vested, not in the Indians, but in the Mission of Ban Diego, and the official of that mission con-sented to the grant, inasmuch as themission had no means to cultivate and occupy the land and it was no longer necessary for its purposes. Some discussion appears in the briefs as to the meaning of the word translated "usages" (servidumbres) which appears in both gr~ntea, nd it is contended by the plaintiffs in error that it is equivalent to the English word "servitudes"and is broad enough to include every right which anyone may have in respect to the premiaea, subordinate to the fee. We shall not attempt to define the meaning of the word standing by itself. It may be conceded that it was sometimes used to expressall kinds of servitudes, includingtherein a paramount right of oeeu~ation:b ut the con-tpxt RZemn to pli(rr H nilvower ~~waninuppO n it8 UPP Ilew. Thua, in t h e fimt grant not only is rhrre the distinct pro\,i~i<rtnh at thclndia~r~~atlll~lirhctdhoen land shall not he molested, hut the granke "is allowed to fence it in without interfering with the roads, crossroads, and other usages" (servidiimbres). In the second the gmntee is "allowed to fence it in without interference with the roads and other usages'' (servidumbres). Obviously, it is in these two clauses contemplated that the fencing is to be without interference with rods and other Usage8 or burdens. It does not mean that the general occupation and control of the property is limited by any so-called servidumbres, but only that such full control shall not be taken as allowing any interference with established roads or crossroads, or other things of like nature. It thus appears that prior to the cession the Mexican authorities, upon examina-tion, found that the Indiana had abandoned the land; that the only adverse claim was vested in the Mission of San Diego, and made an ahsolute grant, subject only to the condition of satisfying whatever claims the miasion might have. How can it be said, therefore, that when the cession was made by Mexico to the United Stat@ there was a present recwition by the Mexican Government of the occupncy of these Indians? On the contrary, act far as any official action is disclosed, it was distinctly to the contrary, and carried with it an affirmation that they had abnndoned their |