USA > California > San Joaquin County > An illustrated history of San Joaquin County, California. Containing a history of San Joaquin County from the earliest period of its occupancy to the present time, together with glimpses of its future prospects; > Part 13
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"As mortal combat was predetermined they wasted little time on preliminaries. Broderick's friends held that if his remarks at the Inter- national table were withdrawn, Terry's at Ben- ton's Church, which provoked them, should also be withdrawn. But Terry had nothing to re- tract, nor had Broderick. So on the morning of the 11th they met for a duel, just over the San Francisco County line, in San Mateo County; but Chief Burke, armed with a warrant from each county, carne suddenly up, arrested them, and put a stop to proceedings. The police court dismissed the charge because no violation of the law had been committed. At seven o'clock on the morning of the 13th, the combatants met again at another point in San Mateo County, some twelve miles from the city, and no police interfered.
" About fifty spectators were present. Terry's seconds were Thomas Hayes and Callionn Ben- ham; and Broderick's were Mckibben and D. D. Colton. Broderick won the choice of posi- tions and word of fire, and Terry won the choice of weapons, which were duelling pistols; dis- tance, ten paces. At the word the principals raised their pistols, but Broderick's discharged itself before being bronght to a level, the ball striking the ground some distance in front of
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his opponent. Terry's fire followed but a sec- ond later, he exclaiming, ' The shot is not mor- tal; I have struck two inches to the right;' then, as he saw Broderick slowly falling, he and his friends retired. The ball entered Broder- ick's breast near the right nipple, and lodged in the left side. He died four days afterward from the wound. Terry hastened back to Sacra- mento, and then to liis farm near Stockton. He had left with a friend his resignation of the judgeslip before the duel came off, to be sent in to the Governor only on condition of such a re- sult as did follow. Now he signified his readi- ness for trial. The case was postponed from time to time, moved from court to court, and at last, on a change of venue taken to Marin County, where the Seventh District Court was in session, temporarily presided over by Judge Hardy, who came all the way from Mokelumne Hill for the purpose. On the day set for trial the witnesses from San Francisco were becahned on the bay. The court waited a little while and then the prosecuting attorney moved a nolle prosequi, and thie farce was ended."
The " farm near Stockton" above alluded to was a ranch about twenty-five miles northeast of Stockton, on the Mokelumne river, near Clem- ents, to which he had secured a title soon af- ter his first arrival in California. The land is now very valuable. He sold it in 1861 or 1862, when he went to Texas to participate in the war.
After the commencement of the war of the Rebellion, probably in 1862, Judge Terry went to Texas, leaving his family liere, and served on the staff of one of the principal journals in that State, and afterward became Colonel of a Con- federate regiment which he commanded until tlie close of the war, when he was acting as Brigadier General. After the close of the Re- bellion he crossed into Mexico abont July 4, 1865, in company with about 150 men, among whom were a large number of ex-Confederate officers, as ex-Governors Trusten Polk and Reynolds, of Missouri; Isham G. Harris, of Tennessee; Allen Louis and Reynolds of Texas; Generals Joseph Shelby, Sterling Price, E. Kirby
Smitlı, Lyon of Kentucky and J. B. Magruder; Colonels P. S. Wilkes and Gordon, of Missouri, A. W. Slayback and Mr. Blackwell of Missouri, and Dorsey, etc. Crossing into Mexico at Piedros Negras and proceeding on to Parras, they were turned back by the French and were forced to pass around the Bay to Matamoras; thence they came by way of San Luis Potosi, Aguas Calientes through Guadalajara to Tepic, San Blas, and thence by schooner to Mazatlan, and thence on to Stockton. Afterward he went again to Mexico and began raising cotton, and while there his wife took him a number of horses from this place.
In 1868 he returned to California and went to the White Pine country in Nevada for a short time.
Mrs. Terry died here in Stockton, in 1885, a noble woman; in 1888 the Judge married Mrs. Sarah Althea Hill (of Sharon notoriety); bnt she was ostracised here in Stockton to so great an extent that the Judge moved with her to Fresno, in which vicinity he had considerable interest in land, and also an extensive practice.
The Judge was a thorough lawyer, a faithful and shrewd attorney and a good pleader, being clear, emphatic and convincing in his statements and eloquent in description, but not ornate. He was engaged in a large proportion of the noted lawsuits in this county, among them tlie case of the County vs. the Railroad Company, concerning the payment of stock, in which he was instrumental in saving to the county $100,- 000 or more. The suit was finally settled by a compromise. As a jurist he was influential in the State, and he was a prominent member of the State constitutional convention of 1878-'79.
Religiously, Judge Terry was brought up a Baptist, and as to the fraternal organizations he was in early life a member of the Masonic brotherhood. He was ever faithful to his friends, bnt intimate withi only a few, being very cantious in contracting familiarity with strangers.
At eight o'clock on the morning of August 14, 1889, in the middle of the railroad dining- room at Lathrop, this county, Judge Terry was
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shot and killed by United States Deputy-Mar- shal David Neagle, who was at the time accorn- panied by Hon. Stephen J. Field of the Supreme Bench of the United States. It is a coincidence that the most prominent characters in this sketch were all namned David.
Mr. Terry in his lifetime had six sons: Sam- uel, David, Clinton, two Franks and Jeff Davis. They are all dead except Clinton (now abouttwen- ty-eight or thirty years of age), who is employed in the United States Mint in San Francisco. Sam- nel was a very brilliant lawyer, being one of the most promising young attorneys in the State of California. The Stockton residence is still in the possession of the family.
HON. DENIS JOSEPH OULLAHIAN,
deceased, was a native of Dublin, Ireland, aged sixty-five years, at the time of his death, No- vember 5, 1889. He was the son of Robert Oullahan, who was eminent in the profession of civil engineering, being attached to the Royal Engineer Corps of the British army. After re- ceiving a thorough course in the schools and colleges of the great Irish city, young Oullahan began a course in the study of medicine and surgery during the term of which his unusually refined and sensative nature received such a shock from the repulsive scenes in the dissecting room that his ambition in this direction was rudely checked. Therefore turning his atten- tion to other fields in 1849, he embarked witlı his brother Edward, now a merchant of Stock- ton, on a ship bound for San Francisco by way of Cape Horn. The gold excitement was then at its zenith in the distant California, and the brothers started fully equipped with merchan- dise, portable iron frame houses and other stores necessary to a successful expedition. Arriving in San Francisco, Denis Joseph entered the merchandising and commission business, a year later going to Sonora, Tuolumne County, where
he prospered for some time in the commission and forwarding business between Stockton and the mines of Tuolumne. He also established a flouring mill at Columbia, Tuolumne County. In 1868 he returned to San Francisco and there formed a copartnership with John Hill in the real-estate business. In 1873 he went to Stock- ton to engage at that place with his brother in the wholesale liquor business. Finally in 1886 he returned again to San Francisco, where he was at the time of his death engaged in the real-estate business. In 1859, in Stockton, Mr. Oullahan married Miss Julia Baine, a daughter of Judge A. C. Baine, a prominent lawyer and journalist of Jackson, Mississippi. Mrs. Oulla- han died in 1881, leaving five children, two daughters and three sons, who survive their father also.
The subject of this sketch was a man of natural ability and learning. In politics he was prominent in the history of the Democratic party of California for thirty or forty years. His ability on the rostrum was on all occasions acknowledged in the party councils, apt in de- bate; he was also a linguist, the study of the modern languages having been well finished and polished by years of travel in foreign con- tinents. In 1884, Governor Stoneman, from among a host of eligible citizens, chose Mr. Oul- lahan for appointment to the office of State Treasurer, to fill the vacancy cansed by the resignation of the Hon. Williamn. A. Jan- uary. In his political life, Mr. Oullahan exhibited those inarked traits of character which distinguished his personal career, traits which rendered impracticable the realization of any possible political ambition; disdaining the tactics of the machine politician, he ever ignored the advantages to be gained by combination or intrigue, and hence he was frequently denied the honors of exalted office, opportunities which were offered at different periods throughout his long career.
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HISTORY OF SAN JOAQUIN COUNTY.
LAND TITLES.
CHAPTER VII.
MEXICAN LAWS AND USAGES.
OVERNOR NEVE, while established at Monterey, dratted the first regulation for disposing of the lands by grants, which re- mained in force forty years. This was approved by the King of Spain. The first general decree was made in June, 1779. To each settler (poblador) was granted a bounty of $166.44 a year for the first two years, and $60 a year for the next three, with the loan of horses, cattle and farming utensils, and settlers in pueblos could pasture their stock on lands adjoining towns. No poblador could sell an animal until lie had a certain number, and then he could sell only to the government, at whatever price was seen fit to award him.
The Mexican government superseded this de- cree in 1824, and again made certain modifica- tions in 1828, and this was still in force wlieu California was ceded to the United States.
The governor of the territory was empowered to make grants of lands to contractors (for towns and colonies) and individuals or heads of families. Grants of the first-named class re- quired the approval of the supreme government to make them valid. For the latter the ratifica- tion of the territorial assembly was necessary; but in no case could the governor make grants of any land lying within ten leagues of the sea- coast, or within twenty leagues of the boundary
of any foreign power, without the previous ap- proval of the supreme government. The au- thorities of towns, however, were allowed to dis- pose of lands lying within the town limits, tlie proceeds to be paid into the municipal fund. The maximum extent of a single grant was fixed at one square league of irrigable land, four of temporal, or land where produce depends on the seasons, and six of land for pasturing and rearing cattle-eleven square leagues (about 50,000 acres) in all. The minimum extent was about 200 varas square (a vara is a thirty-tliree and one third inches) of irrigable land, 800 of temporal and 1,200 of pasturage. The size of a honse lot in any of the pueblos was fixed at 100 varas. The irregular spaces and patches lying between the boundaries of the grants through- out the country were to be distributed among the colonists who occupy the adjoining land, or their children, preference being given to those who have distinguished themselves by their in- dustry and moral deportment. All grants not made in accordance with these regulations from the time of their adoption up to July 7, 1846, when the American flag was raised at Monterey and the departmental junta broken up, are not strictly valid according to Mexican law. The restrictions against lands within ten leagues of the sea-coast were never removed. The only legal grant of such lands was made to Captain
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Stephen Smith of the port of Bodega, which re- ceived the approval of the supreme government. In the MacNamara colonization grant made by Pio Pico only four days before the occupation of Monterey by our forces, it was expressly stated that the consent of the Mexican govern- inent was necessary to make it valid; yet, in spite of this distinct provsion, large tracts of this coast, from San Francisco to San Diego, were granted to citizens and colonists by Fig- uera, Alvarado and other governors. All these acts that have never received the sanction of the supreme government would by a liberal con- struction of the law be null and void.
The land where Stockton stands, as most know, was secured by grant from the Mexican government issued to Don Carlos Maria Weber. We account for this name in the grantee from the fact that at the time the grant was obtained none but a Mexican citizen could obtain a grant, and the department by that name was deceived into believing this was the case. However, re- ports are conflicting, as it seems the grant was first obtained by Gulnac, a Mexican'citizen, and he and his family assigned to Weber before com- pletion, and hence issued to Weber in the above name.
Much of the land given in Mexican grants was never surveyed. The locality and charac- ter of the tract were rudely sketched on paper by the petitioner, sometimes without specify- ing the dimensions, and sometimes with a mere guess at the quantity. No particular blame, however, is to be imputed to the Mexicans for this laxity, as the situation during that period was not such as to excite any suspicion that an accurate survey would ever be necessary.
MEXICAN GRANTS.
The Mexican or Spanish grants of land either partly or wholly in San Joaquin County have been as follows, this list giving in each in- stance, first the name of the grant, followed by the name of the confirmce, the area and date of United States patent.
Arroyo Seco, Andres Pico, 48,857.52 acres,
August 29, 1863. Lying partly in Amador and Sacramento connties.
Campo de los Franceses, Charles M. Weber, 48,747.03 acres, March 18, 1861.
El Pescadero, Hiram Grimes and others, 35,- 446.06 acres, January 18, 1858. Partly in Stanislaus County.
El Pescadero, Pico and Nagle, 35,546.39 acres, March 10, 1865. Partly in Alameda County.
Sanjon de los Moquehimnes, heirs of A. Chabolla, 35,508.14, May 30, 1865. Partly in Sacramento County.
Thompson's rancho, A. B. Thompson, 35,- 5.32.80 acres, May 18, 1858. Partly in Stanis- laus County.
THE MOQUELEMOS GRANT CLAIM.
Probably the most important litigation in all the history of San Joaquin County, was that concerning the Moquelemos grant claim, in which Hon. Joseph H. Budd was the victorious attorney for the settlers. The outline of that long series of lawsuits concerning the matter is as follows:
One Andreas (or Andres) Pico claimed as a Mexican grant, alleged to have been made in 1846, a tract of land situated in the counties of San Joaquin and Calaveras, of eleven square leagues, called by him " Moquelemos." The exterior boundaries of the grant were: on the north, the river Moquelemos (now called Mo- kelumne); on the east, the " adjacent ridge of mountains;" on the sonth, the Gulnac, or Weber grant, " de los Franceses," and on the west, the " estuaries of the shore" (or tule lands) The amount of land included in such exterior boundaries greatly exceeded eleven square leagues. This claim was rejected by the Board of Land Commissioners, but it was affirmed and approved by the District Court of the United States, Northern District of Cali- fornia. On the appeal from that court to the Supreme Court of the United States, the decis- ion of said District Court was reversed, in 1859, and the case was remanded to the District
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Court for further evidence. On a re-hearing of the case in the District Court, this claimed grant was rejected and declared invalid and this de- cision was affirmed by said Superior Court, Feb- ruary 13, 1865.
By the acts of Congress of July 1, 1862, grants of odd-numbered sections of land were made to certain railroad companies, of which the Western Pacific Railroad Company by sub- sequent legislation becaine one. Such grants were of lands within ten miles of their respect- ive roads designated by odd numbers, not sold, re- served, or otherwise disposed of by the United States, and to which a pre-emption or home- stead claim had not attached when the line of the road was definitely fixed. By subse- quent legislation there was granted an addi- tional five-mile limit on each side of the line of such roads from which the railroad company could select from odd-numbered sections other lands in lieu of odd-numbered sections of land within such ten-mile limit, which such railroad company did not receive from the United States under said act of July 1, 1862, because disposed of by the United States, or because pre-emption or homestead claims had attached thereto pre- vious to the fixing of the definite line of location of such railroad.
Said Western Pacific Company caused the odd-numbered sections of land to which it claimed to be entitled under said grants to be withdrawn from pre-emption, private entry and sale on the 31st day of January, 1865. But the settlers on odd-numbered sections of public lands claimed that the line of said roads was definitely fixed before the time of such with- drawal, and that the odd-numbered sections within the exterior boundaries of said claimed grant " Moquelemos " were not granted to the railroad company because sucli lands were re- served from such grant to the railroad company, since the question of the validity of said claimed Mexican grant " Moquelemos " was a matter sub judice and undetermined by the Supreme Court at the time the grant to the railroad com- pany took effect.
This view, except as to the definite location of the line of the road, was sustained by the de- cision of the Supreme Court of the United States, rendered in the celebrated case of Sanger vs. Newhall, in the year 1875. The railroad company had, however, in the meantime been diligent in procuring patents from the United States for all the odd-numbered sections of land within the limits of this rejected grant, " Mo- quelmos," to which said company claimed it was entitled under said acts of Congress, and said company with equal diligence sold and made conveyances to different purchasers of all the lands for which it had so procured patents. The land department of the United States refused to allow the settlers to file pre-emption claims for, or make homestead entries of, lands for whichi such patents were issued until such patents were declared null and void and were vacated under and by virtue of a decree of an United States court of competent jurisdiction. This state of things cansed long and expensive con- tests and litigation between the settlers and pur- chasers, claiming under such patents issued to the railroad company for these lands, and mnuch bitterness of feeling was engendered by these contests; and on one occasion in a personal con- test between an agent for one of these purchasers and some of the settlers for the possession of one of these disputed tracts of land, the agent, named Patrick Breen, lost his life. The matter of the cause of his deathi was judicially investi- gated, but the evidence in the case did not show who the person was who caused the death of Breen, and that is a matter which will probably never be ascertained.
At one time some of the settlers seemed in- clined to resist by force the process of the courts until the question as to the title to these lands was finally determined by the Supreme Court of the United States, and the military were called upon to aid the civil authorities in the execution of the writs issued by the courts.
Fortunately for the county and for all persons concerned, Thomas Cunningham, who was the sheriff of the county, was a person of great
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firmness of character, incapable of fear, and who knew neither friend nor foe in the discharge of his official duties; who oppressed no one, but who never failed to execute all legal processes duly placed in his hands as sheriff. These set- tlers knew "Tom Cunningham," as he was familiarly called, and kuew, no matter how dis- agreeable it might be to him personally, that he would execute all processes of the courts which it was his duty to execute, and they therefore resorted to no force to impede the execution of the writs of the courts after they were placed in the hands of Sheriff Cunningham.
After the lapse of a number of years, and on application from these settlers, the United States commenced a suit in equity in the circuit court of the United States for California, against the railroad company, and those holding title to these lands from and under patents for these lands to that company, to vacate such patents and to have them declared null and void. The circuit court decided in favor of the holders of the lands under these patents, and this decision was affirmed by the Supreme Court of the United States in 1888. The decision of this court of last resort has ended for all time the controversy in favor of persons holding what was called the railroad title to these lands, and the settlers lost the lands and the improvements placed by them thereon. The settlers succeeded in the first litigations in having it judicially determined by the highest court of the nation that the lands were never granted to the railroad company, but the claimants of the lands under the company finally succeeded in having it judicially deter- mined that the lands belonged to themn.
The above is the substance of the litigation; but it will be interesting to add here a quota- tion from a San Francisco paper, giving the personnel of that long protracted war, published in 1879:
"A patent for the land in dispute was ob- tained by the Western Pacific Railroad Com- pany, since consolidated with the Central. Sub- sequently a Mr. Dayton obtained a patent for the sanse tract of laud, from the Laud Depart- 7
ment, stating that the first patent had been issued inadvertently. Dayton afterward sold to a Mr. Graves, and he in turn to Mr. Newhall, a nephew of Mclaughlin, and at the time his chief clerk. McLanghlin's brother-in-law, San- ger, sued Newhall for the possession of a quarter section obtained through pre-emption, while Newhall's claim was a patent from the Central Pacific Railroad Company. In 1864, under the twenty-mile grant given by Congress to the trans continental railroad, the Western Pacific Railroad Company claimed within certain limits a portion of this grant. The land of this grant was not reserved by the railroad company to the decision of its title; and when it was rejected in 1865 the land was thrown open to pre- emption and homestead entry.
"Should any one desire to further investigate this inatter, we refer them to the decision of the Supreme Court of the United States, published in 1875, in pamphlet form. This decision gives the full history of the case."
The first case came to trial in the fifth judicial district court, Judge Booker presiding. The settlers, ignorant of the thunderbolt that was about to be hurled against thein by the avari- cious monopoly, were awakened to thought and action by Messrs. R. C. Sargent, John Grattan, L. U. Shippee, J. H. Dodge and other settlers, and counsel were employed, both in Stockton and in Washington, to defend-not Sanger, but -"Justice against the most infamous scheme ever concocted by men, who claim in their private lives at least to be honest, upright and fair." Judge J. H. Budd, of Stockton, esponsed the cause of the settlers, and earnestly and suc- cessfully did he plead it. Judge Budd is not entitled, in this case, to any praise for doing his duty as a lawyer; but for doing his duty as a man he is; for the railroad corporation is rich, and there was a great prize in view.
When the case came to trial before the United States Supreme Court, Mr. Newhall, the agent of the railroad company, received more justice than he had anticipated or wished for, as he was anxious to be beaten by his collusive defendant,
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Mr. Sanger. By this decision the rights of pre- emption were snstained, and the railroad com- pany were obliged to relinquish their claim to any portion of the Moquelemos grant, which had been pre-empted before the passage of the act.
The United States Supreme Court (only Jus- tices Field and Strong dissenting) decided, May 8, 1876, in favor of the settlers, and the news telegraphed to the citizens here occasioned uni- versal rejoicing. Indeed, the settlers were wild with joy, and well they might be, as their homes, around which clustered all that was near and dear to them, were secured to them by this decision. Accordingly, on the 19th they had a grand jubilee at Lodi, which was attended by an immense and enthusiastic throng from all parts of the county, especially from Stockton, where all places of business, even the saloons, and the schools and all public institutions, were closed for the occasion. The Stockton Guard, Firemen, Knights of Pythias and other organi- zations attended in parade, escorted by the San Joaquin band. Hon. H. S. Sargent, president of the day, announced to the multitude the ob- ject of the occasion. A secretary and ten vice- presidents were chosen, and when all were ready Judge J. H. Budd was introduced upon the stand, and delivered a brief but stirring speech, reciting the history of the litigation and eulo- gizing certain officers of the law who had un- flinchingly done their duty.
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