USA > California > San Diego County > San Diego > City of San Diego and San Diego County : the birthplace of California, Volume I > Part 52
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The articles of agreement between Frank .I. Kimball of San Diego and the Boston syndicate representing the Santa Fe Railroad:
Articles of Agreement, made this twenty-third day of July. A. D .. 1880, by and between Frank A. Kimball, representing himself, the firm of Kimball Brothers, the Chamber of Commerce. the Board of City Trustees, and prominent citizens of the City of San Diego, in the State of California, party of the first part and Kidder, Peabody & Company. B. P. Cheney, George B. Wilbur. Lucius G. Pratt, and Thomas Nickersona, all of Boston, Massachusetts, party of the second part, witnesseth :
That whereas, the party of the first part desires to obtain rail- road connection from the Bay of San Diego to the eastern part of the United States, and in and of the same. is able and willing to donate the lands, privileges and franchises hereinafter mentioned. And whereas the party of the second part is willing to furnish such connection and receive such donation.
Now, therefore, in consideration of the premises and their re- spective undertakings hereinafter set forth. and of one dollar to each paid by the other receipt acknowledged. said parties mutually agree as follows :
Article 1. The party of the first part will convey or cause to be conveyed by good and sufficient deeds in fee simple, free from all incumbrances except taxes due on the first Monday in January. 1881.
440 CITY OF SAN DIEGO AND SAN DIEGO COUNTY
to Henry B. Williams of San Francisco, John A. Fairchild, and Warren C. Kimball, both of said San Diego and all of the State of California, trustees, the several parcels of land and the several priv- ileges and franchises hereinafter set forth, namely :
(a) In behalf of Kimball Brothers: ten thousand acres of land in Rancho de la Nacion made up and selected as follows: Fractional quarter sections one hundred and seventy-five (175) and one hundred and seventy-six (176), according to survey and patent of the United States now on file and of record in the County of San Diego, said fractional quarter sections giving one mile front upon the water of San Diego Bay, and all the land running back from said water front to such a distance as to embrace in all (exclusive of land heretofore sold which does not exceed twenty acres) two hundred acres, being the land heretofore bonded to a representative of the Texas Pacific Railroad Company together with such additional quantity of land south of National City, adjacent thereto, in such convenient shape as shall be required for workhouses, machine shops, warehouses, wharves and other appurtenances of the line of railroad hereinafter mentioned ; and also together with all the riparian rights appertaining to the lands agreed to be conveyed and to any and every part thereof.
One half equitably selected of all the unsold portions of National City, being from one hundred fifty (150) to one hundred and seventy- five (175) blocks of two and one-half acres each measuring through the centers of the streets as laid down on the plan of said National City.
Also south of National City, quarter sections 174, 179 and 160, and so much of quarter sections 173, 180 and 161 as may be necessary in the judgment of the engineers of the party of the second part, to control the channel of the Sweetwater River, and then selecting alter- nate half miles of water front, measuring on the base line, said Kim- ball Brothers making the first selection, until two miles of water front (as near as may be) have been taken south of National City (making about three miles of water front in all) and then starting from said water front and running back, selecting tracts alternate (as near as may be) exclusive of those parcels already conveyed to sundry persons, until the full complement of ten thousand acres, as aforesaid, has been completed. Together with all tide lands and riparian rights belonging to or in anywise appertaining thereunto and to any and every part thereof.
The selections above referred to shall be made by mutual agree- ment between said Frank A. Kimball, and the party of the second part, or in case of dispute, by three persons chosen one by each of the parties hereto, and one by the two thus chosen, and the decision of a majority of them shall be final.
(b) On behalf of A. Overbaugh, O. S. Witherby and L. C. Gunn about forty-five hundred (4500) acres of land in San Diego, being the same tract conveyed to said Overbaugh, Witherby and Gunn, by Charles S. Hamilton by deed recorded with San Diego deeds, to which reference is had for more particular description.
(c) About three hundred scattered blocks and lots in the city of San Diego and about five thousand acres of land in and around the same, all of which now stands in the name of George B. Wilbur.
CITY OF SAN DIEGO AND SAN DIEGO COUNTY 441
as shown by sundry deeds in escrow in the hands of Bryant Howard and E. W. Morse of San Diego.
(d) The party of the first part also agrees to contribute the sum of ten thousand dollars to be used for the purchase of right-of-way and lands, depots, shops, water and other stations on the line which the party of the second part may adopt for the proposed railroad and for the general purpose of said railroad.
Article 2. The party of the second part will form a company and will build a railroad of standard guage, four feet eight and one-half inches, from said Bay of San Diego to a connection with the Atlantic & Pacific Railroad in California.
And the party of the second part or the company to be formed as aforesaid shall begin work at the earliest practicable moment, and shall before January 1, 1881, construct twenty miles of said railway, starting from San Diego Bay, or shall perform an amount of work upon said proposed line and enter into contracts for said line in good faith, equivalent to the building of said twenty miles before said date: said work to be done and contracts made to be not less than two hundred and fifty thousand dollars in amount ; and shall before January 1. 1882, construct not less than one hundred and sixteen (116) miles of said railway starting from said Bay of San Diego, and shall complete said connection with the Atlantic & Pacific Railroad as soon as practicable and at a date not later than the first day of January, A. D. 1884. Provided, however, that before forming said company or beginning said work, the following things shall be done and the party of the second part notified thereof, namely :
First. The lands and appurtenances from said Kimball Brothers and from said Overbaugh. Witherby and Gun shall be conveyed as aforesaid to said trustees.
Second. The grantors in the several deeds to George B. Wilbur now in escrow with said Howard and Morse shall in writing direct the said Howard and Morse and the said Howard and Morse shall in writing agree to deliver said deeds to said Wilbur on or before Jan- uary 1, 1881. upon the completion of said twenty miles or its equiva- lent in the manner and terms aforesaid : said Wilbur hereby agreeing to quit-claim said lands to said party of the second part.
Third. The sum of not less than ten thousand dollars in cash or its equivalent, shall be deposited with said trustees to be paid to the order of the party of the second part from time to time for the purpose of right-of-way and lands as aforesaid and for the general purposes of said railway ; and the party of the second part shall be notified as aforesaid on or before September 1. 1880.
Article 3. Said trustees shall upon the demand of the party of the second part, after the completion of said twenty miles or its equivalent, as aforesaid convey to the party of the second part or said company one-half of all the lands hereintofore described and conveyed to them as aforesaid : and upon the completion of said one hundred and sixteen miles, said trustees shall upon the demand of the party of the second part convey to said party or to said company all the remainder of said lands and appurtenances, free and discharge of all trust.
442 CITY OF SAN DIEGO AND SAN DIEGO COUNTY
Article 4. If the party of the second part or said company does not construct at least twenty miles or perform an equivalent amount of work, coupled with the purchase of materials as aforesaid before January 1, 1881, or does not construct one hundred and six- teen miles before January 1, 1882, unless prevented by unforeseen causes or causes which could not have been prevented by the use of ordinary forethought, or unless prevented by perils and delays in navigation, then upon due proof thereof, and upon demand by the party of the first part or the majority of the persons in interest represented by said party, said trustees shall thereafter hold all said lands and things not theretofore conveyed by them under the terms of this agreement, in trust for the equitable benefit of the original grantors, their heirs and assigns, and shall distribute and dispose of the same as any court of competent jurisdiction, upon the petition of any person interested and upon full hearing shall direct. Provided, however, that any default may be waived by the party of the first part or by a majority of the persons represented by said party ; and the same shall be deemed to be waived if the party of the first part or the majority of the persons represented by the party of the first part do not make demand as aforesaid within sixty days after the hap- pening of any default as aforesaid ; but the waiver of any default shall not be considered the waiver of any default subsequently made. And provided that such default and distribution shall not release the party of the second part from the obligations of this contract or from any lawful claim for damages for the non-fulfillment thereof.
Article 5. The trustees shall not be liable for the default or misconduct of each other, nor for the default or misconduct of any agent or attorney selected by them in good faith in the discharge of their trust.
And the purchaser at any sale made by them of any of the lands aforesaid shall not be liable for the application of the purchase money and shall not be under any necessity of inquiring into the expediency or legality of any such sale.
Upon the death, resignation, or incapacity or refusal to act of said trustees, the remaining trustee or trustees may fill such vacancy or vacancies, or without filling the same shall act with the same power as the original trustees could have done if their number had remained undiminished.
Upon the filling of any vacancy the title to all the land and things remaining unconveyed shall vest in the trustees thus consti- tuted without the necessity of any formal conveyance, but each trustee shall bind himself, his heirs, executors and administrators to execute such deed for the continuance of the trust as counsel learned in the law may reasonably advise or require ; and the original convey- ances to said trustees shall be made accordingly.
In witness whereof the parties aforesaid have hereunto set their hands and seals the day and year first above written.
FRANK A. KIMBALL. KIDDER, PEABODY & COMPANY. B. P. CHENEY.
GEORGE B. WILBUR.
CITY OF SAN DIEGO AND SAN DIEGO COUNTY 443
LUCIUS G. PRATT. THOMAS NICKERSON. Recorded at the request of Frank A. Kimball, October 27, 1880, at 35 min. past 10 o'clock A. M.
GILBERT RENNIE,
County Recorder.
First County Election
The official record of the first county election held in San Diego, April 1, 1850, is as follows :
First Precinct-Votes for Officers
The undersigned judges and clerks of election held in the first precinct of the County of San Diego, State of California, on the first day of April, 1850, do hereby certify, that at said election there were eighty-eight votes polled, and that the following statement presents an abstract of all the votes cast at said election for the officers desig- nated in the third section of an act entitled "An Act to provide for holding the first County Election," and that the accompanying poll list gives the names of all persons so voting.
San Diego, April 2, 1850.
ENOS WALL, JOHN CONGER,
Judges. P. H. HOOFF, C. H. FITZGERALD, Clerks.
For Clerk of the Supreme Court-No candidate.
For District Attorney-William C. Ferrell. 79; Miles K. Cren- shaw, 4.
For County Judge-John Hays, 80: William C. Ferrell, 1.
For County Clerk-Richard Rust, 82.
For County AAttorney-Thos. W. Sutherland. 71; Wm. C. Fer- rell. 4.
For County Surveyor-Henry Clayton, 85.
For Sheriff-Agostin Haraszthy, 45: Philip Crosthwaithe, 42.
For Recorder-Henry Matsell. 50: A. Jay Smith, 34.
For Assessor-Jose Antonio Estudillo, 81.
For Coroner-John Brown. 45.
For Treasurer-Juan Bandini.
First Precinct-Poll List
Poll list of an election held for county officers at San Diego. California. April 1. 1850 (1st precinct ) :
1. Thos. W. Sutherland. 8. Henry C. Matsell.
2. John Snook. 9. 1 .. G. Ingalla.
3. Andrus Ybarra. 10. David A. Williams.
4. Don Juan Bandini. 11. Charles Morris.
5. Juan Machado. 12. William Tongue.
6. Jose T. Moreno. 13. Ramon Rodriguez.
7. Philip Crosthwaite. 14. John Post.
444 CITY OF SAN DIEGO AND SAN DIEGO COUNTY
15. Andrew Cotton.
22. John A. Follmer.
16. James Murphy.
23. Benjamin F. McCready.
17. Luther Gilbert. 24 William Power.
18. Agostin Haraszthy. 25 Peter Gribbin.
19. William Leamy.
26. James Campbell.
20. John Semple.
27.
Ernest Schaeffer.
21.
Daniel Con.
28. Edward H. Fitzgerlad.
898 1
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