The appellees were confirmed in a tract of land in Yuba county, California, containing six square leagues, bounded north by the Yuba river, west by the eastern line of Captain Sutter's land, south by Johnson's rancho, and easterly for quantity.
The original claimant is John Smith. He was examined as a witness, and testifies that he was a naturalized citizen of Mexico. That in September, 1844, he petitioned the Governor of California for the land, and obtained a favorable report from Captain Sutter, and in 1845 received from the latter a copy of the 'general title,' which the Governor had authorized him to give. That in 1844 he built a house upon the land, planted an orchard of fruit trees, and in that and the following year enclosed a field by ditches, and cultivated it, and that he had there a stock of cattle. He says he resided on the land until 1848, when he sold it to persons under whom the claimants derive their claim.
To account for the non-production of any documentary evidence, he says that the petition and report, with a copy of the general title, were lost in the Sacramento river in 1845; that subsequently he obtained another copy, and this, with his naturalization papers, was sent to Monterey, to be laid before the Departmental Assembly, but that they were never returned to him. Bidwell testifies that he prepared a petition for Smith to Sutter, representing the loss of his papers, and asking for another copy of the title, and that Sutter admitted the claim. He testifies that Smith cultivated the land.
The two depositions of Sutter show that he recognised the claim of Smith to have the benefit of the general title, and that he gave him copies, as stated by the other witnesses. Other testimony in the record disproves the statements of these witnesses in reference to the improvement of the land, and shows satisfactorily that they were made on a different tract of land, and in no connection with this claim.
The 'general title of Sutter' was considered by the court at its last term, and its operation declared in the cases of the United States v. Nye and the United States v. Bassett, reported in 21 How. R., 408, 412. The opinion of the court in those cases has been examined in the argument at the bar, and has been re-examined by the court.
The testimony of Sutter in the case of Nye was, that the general title was enclosed to him in a letter by Micheltorena, the Governor, by his request. That the Governor was blockaded at Monterey, and was in need of military aid, and the general title was sent to him upon his advice. That he executed the trust conferred upon him, by giving copies of the title to those 'who had rendered meritorious services to the country, and who applied to him.' The general title was issued before his men marched from New Helvetia to join Micheltorena, and, in some cases, copies were given before and some after his return from the expedition, 'but only to such as he thought deserved it.' Governor Micheltorena made a speech to the soldiers, and promised to deliver grants to all 'whom he should recommend,' 'referring as well to those to whom copies had been delivered as to those to whom he should deliver them.'
In the cases of Nye and Bassett, it was proved that the claimants were soldiers in the war of Micheltorena, and had taken possession of the land within their claim under a temporary license from the Governor. There is no evidence of the kind in this case. The statement of facts in this testimony, and the inferences drawn from it by the court, are corroborated by public documents existing in the archives of California. These show that, in the autumn of 1844, there was an insurrection against the authority of Micheltorena, which terminated in a compact signed at Santa Teresa, the 1st December of that year, by the contending chiefs. Micheltorena agreed to disband and send away a battalion of infantry, (presidiarios,) 'with some vicious officers,' within three months, and should himself retire to Monterey; that the headquarters of the opposing forces should be at San Jose, and that their expenses should be charged to the Department. In that month, both parties recommenced preparations for renewing hostilities. On the 24th of December, Alvarado asked Sutter for explanations 'in relation to the assembling of men' at his fort, and charged him with the design of 'invading the Californias.'