
75 U.S. 337 (____)
8 Wall. 337
ALVISO
v.
UNITED STATES.
Supreme Court of United States.

*339 Mr. Bradley, for the appellant; Mr. Wills, contra.
Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:
In the case of Higueras v. United States,[*] this court speaks of concessions or grants of public lands, made by Mexican governors, as being of three kinds: 1st. Grants by specific boundaries, where the donee was entitled to the entire tract; 2d. Grants by quantity, as of one or more leagues of land situated in a larger tract, described by out-boundaries, where the donee was entitled only to the quantity specified; and 3d. Grants of a certain place or rancho by some particular name, either with or without specific boundaries, where the donee was entitled to the tract, according to the boundaries, if given, and if not given, according to the limits of the tract, as shown by the proofs of settlement and possession.
The grant in the case before us, partakes of the two latter classes. It is a grant by quantity, and the claimant is entitled *340 to the amount specified, if that amount can be obtained without encroachment upon the prior rights of adjoining proprietors. It is also a grant of a certain place by name, and as the boundaries are not given, its extent and limits must be shown by the settlement and possession of the grantee.
The correctness of the ruling of the court in setting aside the first survey is not questioned; and the appellant himself united with adjoining proprietors in excepting to the second survey. The testimony taken established, with sufficient distinctness, the northern and western boundaries, as fixed by the third and approved survey. It showed that the northern boundary, between Alviso and Higueras  at one time, a matter of dispute between them  was settled and fixed under the Mexican government, and that the Penetencia Creek was the dividing line on the west, between Alviso and White, the confirmee of the grant of Rincon de los Esteros.
But as to the southern boundary  the boundary between Alviso and Berrysea  the testimony was conflicting and unsatisfactory. Indeed, it is impossible to reconcile the different statements of the witnesses as to the extent of the occupation of either party, south of Milpitas Creek. Some of them testified that the possession of Alviso extended far south of it, whilst others asserted that the creek itself was recognized, both by him and Berrysea, as the boundary between them. The contradictions are so flat that the counsel of the appellant is forced to state that the mind is left in uncertainty whether there was any exclusive occupation of the land by either of the parties. Under these circumstances, there being great doubt as to which side the weight of evidence inclines, we should not be justified, under any rules governing our action upon such cases, in interfering with the decision of the District Court.
The counsel of the appellant objects that there is no evidence in the record that Berrysea had any grant, or if he had any, that it was ever confirmed, and insists that no weight should therefore be given to his possession against the claim of the appellant. This objection cannot be made *341 for the first time in this court. The right of Berrysea to contest the survey originally made, and the nature of his interest, were determined by the District Court on his application to intervene. The act of June 14th, 1860, provides for the return into court of surveys for examination and adjudication upon the application of parties who, in the judgment of the District Court or judge, have such interest in the survey and location as to render it proper for them to intervene for its protection. It enacts that where objections are advanced by the United States, the application shall be made by the district attorney, and be "founded on sufficient affidavits," and that when the application is made by "other parties claiming to be interested in, or that their rights are affected" by the survey and location, there shall be a preliminary examination into the fact and nature of such alleged interest. "The court or judge in vacation," says the statute, "shall proceed summarily, on affidavits or otherwise, to inquire into the fact of such interest, and shall, in its discretion, determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to the survey, and shall grant or refuse the order to return the survey and location as shall be just." When the interest of the applicant is shown and the order is made, those who claim under the United States, whether by "pre-emption settlement or other right or title," must intervene in the name of the United States, and be represented by the district attorney and counsel employed by them acting with him. All other parties not claiming under the United States and allowed to intervene, must necessarily claim under cessions more or less perfect of the former Mexican government. In the case at bar, when the original survey was made, Berrysea applied for and obtained an order for its return into court. In his petition he set forth that he was the owner of the rancho south of the claim surveyed, under title derived from the Mexican government, that the creek Milpitas was the boundary between his rancho and the rancho confirmed, and that the survey included about fifteen or eighteen hundred acres *342 of land belonging to him. The order of the court made thereon necessarily involved under the statute a determination that he possessed such interest, derived from the former government, as to render it proper that he should be heard in opposition to the survey. His right to contest the survey, founded upon the interest alleged, was then settled. The claimant might, perhaps, have subsequently insisted that the intervenor had no such interest as to give him a right to object to the survey, and have asked on that ground for a revocation of the order. But not having taken any such course, he cannot now object to the position of the intervenor as a contestant. As contestant, the intervenor could, of course, show his own occupation of the land in dispute to meet and overthrow the pretensions of the claimant founded upon his asserted possession of the premises.
As to the eastern boundary of the approved survey, we are not entirely satisfied that it is correct. There is much force in the position that this boundary should run along the base of the hills, and not embrace any portion of their sides. But the United States, who might have interposed an objection of this character, have not appealed from the decree approving the survey in its present form. They cannot, therefore, raise any objection to its correctness now.[*]
Upon the whole case, we are satisfied that the survey approved, is as favorable to the appellant as any which the evidence would justify. The decree sustaining that survey must therefore be
AFFIRMED.
NOTES
[*]  5 Wallace, 827.
[*]  Fossat Case, 2 Wallace, 649.
