Foss v. Hinkell

Harrison, J. 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 grant, the boundaries designated in which may be identified by parol evidence,” thereby limited the testimony upon which the court below was to make its finding upon this issue. These were, however, words of definition, rather than of enumeration, and must be read in connection with the subsequent direction to the court to make its finding “ on the testimony already introduced, and such further testimony as may be introduced by either party.”

The former appeal, although taken from the judgment and order denying a new trial, was heard and determined upon the findings- alone;- and as the “testimony already introduced” was not then before this, court, it cannot be-[197]presumed that it intended to make any reference to the character of the evidence already taken, or to limit the character of the “further testimony” which might be introduced hy either party for the purpose of enabling the court below to make its finding upon this issue. It then appeared from the findings that on the third day of April, 1871, the date when the route of the Southern' Pacific railroad was definitely located, the land in question was within the “claimed exterior limits ” of a valid. Mexican grant of the rancho San José, and by reason thereof was sub judice. This finding was based upon another finding, that hy the Thompson survey, made in 1868, the lands in controversy were included within the exterior limits of said rancho until said survey was rejected in 1875; while by the Hancock survey, which had been previously made, and which was afterwards substantially approved and a patent thereon issued in 1875, the lands were excluded from the exterior limits of the rancho. This court, in its opinion, held that whether tbeland in controversy was sub judice was the ultimate fact which the court below should have found, saying: “ The exterior limits of the rancho do not depend on any survey made of it.” The record then before this court did not disclose the character of the grant, — whether it was a grant of quantity within exterior limits, or a grant of a specific tract, either by name or with definite boundaries; and the court, in its direction, did nothing more than indicate that the issue could be found upon any competent evidence.