in such a loose and unreliable manner before Surveyor General Pelham as that he would find it proven by the evidence that Ramirez had been in continuous possession of a tract of land to the west of the spring, when in point of fact he had not occupied or claimed a foot of such a tract, but only another and entirely different one. Occupancy is a physical fact, open to observation and proof, and manifested within defined lines or points. It is established that the petition of Ramirez for the grant, the decree for juridical possession by the judge, Santiago Flores, was for land west of the spring; that the petition to Pelham, as surveyor general, was for a tract lying west of the spring; that witnesses appeared before such surveyor general and proved 15 years' possession of land lying there; and that Surveyor General Pelham recommended for confirmation a grant located there. The description was written and considered so often by parties with knowledge of the locality, was proven before Pelham as actually occupied, that the inference therefrom is very strong that such is the correct location for the land actually conveyed in the grant. Thus the matter rested at the time of the recommendation for confirmation in 1860; and until new developments were made, and the hand of new manipulators came to the surface, without a suggestion from any source -notwithstanding the grantee had, without doubt, often traveled over every acre of the land-of mistake in description.

In considering where the tract granted actually did lie, whether east or west of the spring, the report of Surveyor General Pelham should have great weight. His recommendation to congress is for the confirmation of a tract lying west of the spring. There is not a line of proof that evidence on which he found possession in fact of that tract was either corrupt or mistaken. So far as the evidence discloses, Ramirez remained content with his description up to about the time, in 1866, when he was visited by Miller, Cooley, Carey, and others on the expedition ordered by Clark. Before this, Cooley and the parties who set that expedition on foot had prospected the country there. They had organized a mining company, and elevated Ramirez to its presidency. They doubtless ascertained the value of the Big copper mine and the minerals near it, and coveted such a prize. They clearly comprehended the difference in value between a tract of land lying west of a line drawn north and south through Canon del Agua spring, aud one lying to the east of such a line, and including the Big copper mine.

For a period of over 18 years, up to the time when the hand of these men first began to appear, there had been no thought, so far as appears, of a mistaken description, or of any uncertainty in location. During that period the locality in controversy was not an unknown or obscure place. The evidence is clearly to the contrary; that it was a place, during much of that time, of large importance, and well known. The town of San Francisco contained a varying population, with from two to four thousand people; stores, and commercial transactions of considerable extent; planting grounds near; an organized church and chapel, where people congregated to worship; and with Ramirez one of the active leading spirits. During all that time he made no claim to the town which this survey gives him, but, to the contrary, recognized the title of others to property there in various ways. At this place it is well to observe, the survey complained of now is made to include a part of the town of San Francisco. Not only does the survey extend north of a road described in the petition for the grant, and in the grant, as the, northern boundary, but it includes a substantial part of the town of San Francisco. Ramirez did not ask to run his line even to the town, but asked "for a tract of vacant land, known as the Canon del Agua,' near the placer (or town) of San Francisco, * * *and distant from that town about one league, more or less. The land I solicit is vacant and without owner." This petition of Ramirez bears date February 12, 1844. Nazario Gonzales went to the town of San Francisco when a young man about 23 years old. He is a witness in

this case, and testifies: "When I went there [to San Francisco] in 1842, there was about one hundred families living there. I know how the right to locate lots for building purposes was then acquired. They applied to a justice of the peace for a lot on which they wished to build, and he would give a certificate which entitled them to a piece of ground." Was it this land on which the town was being built which Ramirez sought to acquire? He says not, in his petition. He says it was vacant land he asked for; not a tract to include in its lines a town with over a hundred families. Did it include the town? The petition he filed says "no," but that "it is distant from the town about one league;" while the survey sought to be upheld in this case says “yes; it does include a part of the town." If the land he wanted came up to the town, why did he not petition for land adjoining the said town of San Francisco? If he intended to embrace over a hundred residences in the grant he asked for, why did his petition not say, "Including the town of Real de San Francisco, with the houses and lands therein occupied by others?" The land he asked for, in the terms above, as vacant, for cultivation and pasturage, a league from the town, and south of the road, is, by the survey complained of, extended north of the road to and including the town, and actually including the chapel erected and used as a place of public worship. We are not only asked to hold that land, described as west of a given point, all lies east of it, but that the same tract, described as having the road for its northern boundary, extends far north of the road; also, that the same tract, described as being vacant, really included a town and its place of worship, and that while, by the description in the grant, it is located a league away from the town,— three miles distant therefrom,-that in fact, notwithstanding the declaration in the grant and petition that the land desired was vacant, outside of, and below the town, yet that it ran up to and included a large part of the town. If the position of the appellee be true, Ramirez for 15 years lived upon, used, and occupied a tract of land, a part of which was in the town, when he believed it was distant a league therefrom; that included houses he was asking the permission of others to occupy, the western boundary of which was located where the eastern boundary was described to be. If the survey be correct, then there was a mistake in the description in the grant as to the northern, eastern, and western boundary; not one mistake in description, but at least three. The presentation of such a claim carries on its face the most serious suspicion. The facts apparent in the evidence respecting the location of the northern boundary are quite as interesting and important as those relating to the eastern boundary. Even if the eastern boundary is correctly located, and the northern is not, it should prove fatal to the survey. On page 654, Record, Mr. Griffin, who made the survey, said, respecting the northern boundary, in answer to a question: "You will find there is nowhere in the testimony, I don't think, or in the survey, anything called the northern boundary except the points. It is south-east and north-west boundary."

The petition of Ramirez to the Mexican government, and the deed of possession, both do fix, not a north-western, but a northern, boundary; and it is at this point the complainant in this case has reason to make serious objection. It is because there is nowhere in the survey a northern boundary fixed, when there is such a boundary named in the grant, and which the survey defines, that substantial reason is bound to question the correctness and validity of the survey. The principal part of the evidence upon which these points and lines were fixed was taken in May, 1866. On page 649, Record, Mr. Griffin says he was not then a deputy United States surveyor. He was in no sense a sworn officer. He was not at that time intrusted by the government with any duties, and his act could no more bind or preclude the government than that of any other private person. On page 643 he says: "I was out there in May, 1866, at the Canon del Agua grant, as a notary public, in connection with Mr. Miller, as chief clerk of the surveyor general's office. I

was along as notary public simply." Page 649: "I received compensation for my services from the owners of the grant, -the parties who purchased from Ramirez." He was the agent of those only through whom the defendants in this case claim. The evidence in the record proves that the then claimants, after the recommendation in 1860 by Pelham, and before this evidence was taken, in 1866, visited the locality, organized companies, operated mines, became familiar with the topography and mineral deposits and resources of the locality, and that they contracted with Ramirez for the purchase of the property.

If the boundary described in the grant as the eastern boundary could be changed, and the land inverted so as to include the Big copper mine and its adjacent mineral, it would increase the value of the purchase by hundreds of thousands. The manner in which this business was clearly transacted is not creditable to any of the parties engaged in it. The period was favorable for fraud and wrong. The country was just recovering from the civil war,-a period of great agitation,-and the best thought was turned to the questions then engrossing the public attention. New Mexico was far distant from business or populous centers, away from all railroad and telegraph lines, and the scrutiny usually applied to populous centers. Under such circumstances, the then surveyor general, John A. Clark, visited Washington, the residence of some of the leading spirits in the enterprise. From there he directed a letter to one designated as "Chief Clerk and Translator." In response to that letter, a part of the evidence was taken which fixed the boundaries named in the survey complained of, and now sought to be maintained. For some reason not explained, that letter failed to find its way to the files, and is not to be found. Miller calls it a "private letter, "-possibly too private for preservation. It is at least suspicious that what was done in obedience to the instructions should be preserved, and the instruction lost or destroyed. What business has a public oflicer giving private instructions as to the basis of a public survey,- -so private that the party to whom addressed regards them as too private to go on the public records? The evidence proves that Cooley, Carey, and others of the purchasers from Ramirez had been on the ground, and became personally acquainted, not only with Ramirez, but also with the country about his grant. It will be seen by referring to Exhibit L 3, p. 371, that a mining company had been organized to operate mines; that Jose Serafin Ramirez was the president of such company. It was called "The Mining Company of the Placer de San Francisco." A contract was entered into by Serafin Ramirez on one part, and as president of the company, and John C. McFaren, of U. S. A., of Washington, D. C., Asa B. Carey, also of the army, at Santa Fe, Charles W. Kitchen, Denmore, Hinkley, and Cooley, of the other part, bearing date October 20, 1865, whereby the grant, with some other property, was sold by Ramirez for $40,000. A prior contract had been made at a consideration of $32,000, and an increase of $8,000 on the price occurred. The parties were to pay to Ramirez the $40,000 on the first day of May, A. D. 1866. On the seventh day of March, A. D. 1866, Ramirez and his wife (see page 372, Record) extended the time for making this payment "from the first day of May, 1866, to June 1, 1866,"—just one month. Observing these dates, which are important, it is worth while to inquire, where was Clark, the surveyor general, while these important negotiations were proceeding? On page 45 it will be seen that the surveyor general, from Washington, only eight days after this extension of time, directed Miller, his chief clerk and translator, to go out on the ground, and to make an inspection thereof. It is not to be forgotten that Miller swears this letter, though from a superior officer to an inferior one, respecting an act now claimed to be public and official, was private, kept from the files, and cannot now be produced or found by its custodian. In his letter dated May 10th, reporting to Clark, surveyor general, how he obeyed the instructions, their

purport is clearly seen. The transaction is odorous with suspicious circumstances. May 1, 1866, there was due from the purchasers to Ramirez for the grant $40,000. March 7, 1866,—about 90 days before this sum became due, Ramirez was induced to extend the time of payment to June 1, 1866. March 15th,-only eight days after this extension was procured,-Clark, the surveyor general, from Washington, directed his clerk, Miller, not to make a survey, nor to locate points, lines, or boundaries in aid of the government, but to go out on the land, and take evidence of witnesses respecting landmarks. There can be no reasonable doubt, after the careful reading of the evidence pertaining to the transaction, that the purpose of the purchasers in procuring the extension was to enable them to ascertain whether, in the meantime, these boundaries could be reversed and the location inverted, and that the direction to Miller was in aid of that enterprise. The real inducement, the true in wardness,-to this remarkable direction by Surveyor General Clark to his clerk, Miller, and the more remarkable manner in which the thing was done, is established by the last paragraph of Miller's report of how he carried out the instructions. In that report (page 46) he says:

"As there is no fund out of which to defray my expenses in making the examination, and collecting the evidence here reported, and as, in view of a probable early survey of the land in question, it was important to the parties interested that the boundaries should be clearly identified, so as to enable the surveyor general to act understandingly in giving instructions to his deputy for the survey, they furnished Mr. Griffin and myself transportation both ways, bore our necessary expenses while on the trip, and paid the witnesses for their attendance.

"Respectfully,

DAVID J. MILLER, Clerk and Translator." Two things are established by this quotation: First. A survey of this tract had not then been ordered by any official authority, and so the direction of Surveyor General Clark was extraofficial and premature, and made for some purpose outside of the line of his official duty. It is important to inquire what induced Surveyor General Clark to give such direction to Miller. There is no evidence that he was moved to do so by orders from his superiors in office; besides, up to the time when he gave Miller his instructions, nothing had occurred indicating any incompatibility between the calls and natural objects. There had not been, at the time, in the field, any surveyor to ascertain any reason why the survey could not be made by following the calls of the grant. It is an unaccountable coincidence that the contract for the extension of payment should be concluded on the seventh day of March, and on his own motion that Clark should order Miller to locate landmarks not then disputed or in controversy. Second. Not only was the work directed extraofficial, but it was undertaken without any public funds to meet the expense, and dependent on the private generosity of interested parties to pay the bills. It was not the government or its department which in fact instituted the taking of evidence at that time, but it was those parties who had contracted for the grant, and who had procured the extension of time for payment, that this very proceeding might be taken before they were called upon to pay. Clark and Miller had placed themselves in the hands of the men who were inspiring the transaction. It is a suspicious coincidence that March 7th the extension should occur; that March 15th the private instructions should go to Miller; that on May 10th he should go with the purchasers to the ground; May 19th, a deed should be made by Ramirez to Cooley & Co., and identical with the survey later made; and June 12, 1866, the grant confirmed by congress. There was no order for a survey; none was then, in fact, made. There was no money with which to pay expenses. What was the motive which induced Clark and Miller, forgetting their duty, to throw themselves on the charity of Cooley & Co.? Surveyor General Pelham had heard evidence, and recommended for confirmation under the description.

Ramirez for nearly a quarter of a century had occupied and roamed over the tract, without a whisper of mistake in his description. What new light flashed across the mind of Clark during this 30 days of extension to the purchasers of the claim? This was all answered by the following quotation from the report of Miller: "It was important to the parties interested that the boundaries should be clearly identified to enable the surveyor general to act understandingly in giving instructions to his deputy for the survey." There is the key to the whole transaction. It was not for the reason that it was of consequence to the government; but because it was important to the parties interested,— the claim-holders,-that this inquiry was commenced. Time, too, was the essence of the transaction. It must be done before the extension expired. It might have been the voice of Clark which directed the proceeding, but it was the mind of Cooley, Kitchen & Co. that conceived it, and their hand which manipulated and controlled it. Clerk Miller, continuing, says, (speaking of this transaction, and of Cooley, Kitchen & Co.:) "They furnished Mr. Griffin and myself transportation both ways, bore our necessary expenses while on the trip, and paid the witnesses for their attendance." "Our party consisted of Colonel Carey, Senor Ramirez, Messrs. Cooley, Kitchen, Hoffman, and Mr. Griffin. Magnanimous grant claimants! Was transportation necessary, they were ready to furnish it to the government without cost or price. Was money to pay the bills needed, it was at once advanced. Did witnesses ask for pay, a generous purse was at hand at their service. What a mockery of justice! What a tribunal to protect the interest of the government, and make a fair and honest inquiry as to a disputed landmark! The men who inspired the expedition, who hired the teams, who paid the bills, who procured the order for the proceeding, had only 30 days' extension for payment, and an interest of many thousand dollars to invert the grant, and place east instead of west of the spring, and thereby make it cover a mineral tract of almost fabulous wealth. Not a man in the lot, unless, possibly, the weak clerk, Miller, was there to protect the government. Griffin, even, was hired and paid by the company as a mere "notary" to administer the oath to witnesses. No wonder an expedition so induced and inspired had its mind on a single point,—to make west east. It is not strange that the northern boundary was to it a matter of light moment, when the immense wealth was in the eastern extension. Who was there to examine or cross-examine, on behalf of the government, the witnesses produced, or to say a word in its behalf? The situation of Miller was not such as to enable him to act independently and fearlessly. On page 619 of the record the evidence of David J. Miller, taken in this cause, is set out, and it fully discloses the character of his mission. He says: "Surveyor General Clark was then on leave of absence." It is well to note this coincidence. March 7th, Cooley, Carey & Co. had procured the extension for payment. Between that date and the 15th, Clark, from Santa Fe, would have just time enough to procure from Washington his leave of absence, and reach that place. He would have eight days in which to accomplish that object. On the 15th he did write from Washington, giving Miller his secret instructions. Did Cooley also procure the extension, and report it to Clark? Did he (Clark) then write for and obtain a leave of absence, and, when it was received, hasten to Washington, have a conference with the parties in interest at that end of the line, and on the 15th write to Miller the secret instruction which took him with the grant purchasers, then in New Mexico, to the land, to pave the way' for an inversion of the grant by a change in its lines? The circumstances point with great certainty in that direction. Continuing, Miller says, (page 619;) "I received a letter from the surveyor general-then on leave of absence from Washington directing me to go upon the ground of the Canon del Agua grant. * * * I find no record of this letter. I looked for it among the official records. This letter, I cannot say whether it was official or not. My recollection is, I had letters from the surveyor general, and they were usu