History of Alameda County, California : including its geology, topography, soil, and productions, Part 43

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

mined, and it was precisely this sobrante of half a league which Soto asked for and obtained. If to all this be added the fact that Soto himself always claimed, and was regarded by his neighbors as owning, the whole tract between the beach and the Castro line, and between the Alto and rodeo line and the San Lorenzo, the conclusion is irresistible that such are the true boundaries of the grant. The Board confirmed the claim to the land within these boundaries, and I see no reason to reverse their decree.

THE UNITED STATES, Appellants, vs. The heirs of JOSÉ JOAQUIN ESTUDILLO, claiming the Rancho San Leandro. Where the description contained in a grant, and the circumstances of the case,. justify the belief that the intention was to grant all the land included within the boundaries named. Then the words "poco mas o menos " (a little more or less) must be construed as operative to pass to the grantee such frac- tional part of a league as may be found in excess of the quantity named in the grant.

Claim for one league of land in Alameda County, confirmed by the Board, and appealed by the United States.

This claim was confirmed by the Board. It has recently undergone so full an examination in the ejectment suit brought in the Circuit Court, that I conceive it unnecessary to consider at length the testimony by which its genuineness is estab- lished. On the whole, after an attentive consideration of the additional testimony taken in this Court, I incline to the belief that the grant issued as alleged by the claimant, although the non-production of the original grant and the fact that the order of concession is unsigned, leaves some room for doubt on this point. It appears to me evident that the grantor intended to fix as the limits of the tract, the San Leandro, the sea, and the diramaderos or overflowing of the springs. On the fourth side the boundary is designated as "a straight line from the diramaderos to the San Lorenzo, but so drawn as not to include the- Indian cultivations." This line was, from the terms of the grant, to be a straight line, and should be drawn to the nearest point of the San Lorenzo to which it can be drawn without including the Indian cultivations; whether that line will thus take a southerly or a southwesterly direction will depend upon the extent of the Indian cultivations. Such has seemed to me, after much consideration, the true construction of the grant and diseño in this case, and such was the view taken of it by the Circuit Court and by the Board of Commis- sioners. But the difficult question in the case is that presented by the words " poco mas ó menos." It is certainly not easy to say what precise effect they were intended to have. Some operation should clearly be given them, unless they are so hopelessly vague and uncertain as to admit of no definite construction. The grant surveys to the grantee " a part of the land known as San Leandro," and proceeds to define the boundaries with more than ordinary precision. The third condition states the land of which donation is made to be one square league, a little more or less, (poco mas ó menos), directs it to be measured, and reserves the surplus. The quantity of land contained within the boundaries will probably exceed one league by a considerable fraction. Ought then the words "poco mas o menos" to be rejected for uncertainty, and the grantee in this and all similar cases to be limited to the precise quantity of one league, no matter how small the gore or strip of land in excess may on measure-

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MEXICAN GRANTS.

ment be found to be; or are we at liberty to construe the words referred to as embrac- ing such fractional part of a league as may be found within the boundaries? The question is one of intention on the part of the grantor. In most instances the descrip- tion in these grants was obviously intended to designate the tract out of which the granted quantity was to be taken, rather than to indicate the limits of the land granted. In some cases, on the other hand, the boundaries are indicated with much precision, and the mention of quantity is obviously rather a conjectural estimate of its extent than intended as a limitation of the grant to the quantity mentioned; and yet in these cases the sobrante clause is added apparently from habit, or because no pains were taken to vary the form of the grant according to the circumstances of particular cases. The English equivalent for the words " un sitio, poco mas o menos," would perhaps be given by the phrase " about one square league." Where under our system a grant specifies the boundaries of the land which it conveys in absolute terms, the subsequent mention of its extent as of "about one square league," with a reservation of the surplus, would probably be inoperative. It may plausibly be argued, that if any part of the grant is rejected for uncertainty, the whole phrase (un sitio, poco mas ó menos) should be rejected, and not merely the indefinite words which terminate it. Certainly, if the expression were in English "about one league," the Court would hardly strike out the word "about " and construe the words "one league" as indicat- ing that precise quantity-not to be exceeded by a foot. It has on the whole seemed to me that where the grant describes in its granting clause a particular piece of land, with definite or ascertainable boundaries, and the condition mentions the extent of the land so granted as of so many leagues, "more or less," the latter expression should be so construed as to embrace such additional fractional part of a league as may on measurement be found within the boundaries. There is certainly some difficulty in determining what quantity shall by this clause be deemed to pass. To allow under a grant of one league, more or less, three or four or five leagues to pass, would evidently be unreasonable, unless the condition be rejected in toto. It would seem equally unreasonable to restrict the grantee to the precise quantity of one league as determined by an accurate survey, and to take from him a gore of land, perhaps a few yards in width, along one side of his rancho, and which is clearly embraced within the bound- aries as mentioned in his grant. I think the words should be allowed a reasonable operation, and that where the description contained in the grant, the previous pro- ceedings, and the circumstances of the case justify the belief that the grantor's general intention was to grant all the land within the boundaries, the words "poco mas ó menos" should be construed to embrace such fractional part of a league as might be found to be in excess of the specified quantity. The Circuit Court and the Board were of opinion that in the grant under consideration, the excess, such as it was shown to be, passed to the grantee, and in that opinion I concur. A decree must be entered affirming the decision of the Board.

INOCENCIO ROMERO et al., claiming El Sobrante, Appellants, vs. THE UNITED STATES .- Claim for five leagues of land in Contra Costa County, rejected by the Board, and appealed by the United States. It appears from the expediente on file in the archives, that on the 18th day of January, 1844, the brothers Romero petitioned

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

the Governor in the usual form for a grant of land, being a sobrante lying between the ranchos of Moraga, Pacheco, and Welch. This petition was by a marginal order referred to the Honorable Secretary for his report. The Secretary referred the papers to the First Alcade of San José, with directions to summon Moraga, Pacheco, and Welch, hear their allegations, and return the papers to the office. On the Ist of Feb- ruary, 1844, the First Alcalde reports that the owners of the lands bounded by the tract have been confronted with the petitioners, and that the former are willing and desirous that the land be granted. He adds that it had come to his knowledge that one Francisco Soto claimed the tract some six or seven years ago, but as he had never used nor cultivated it, the petitioners appeared to him to be entitled to the favor they ask. On the 4th of February, 1844, Manuel Jimeno, the Secretary, reports to the Governor that, in view of the report of the First Alcalde, there would seem to be no obstacle to making the grant. On this report of the Secretary, the Governor makes the following order: "Let the Judge of the proper district take measurement of the unoccupied land that is claimed, in presence of the neighbors, and certify the result, so that it may be granted to the petitioners .- Micheltorena." On the 21st of March, 1 844, the claimants addressed a petition to the Governor, representing that, owing to the absence of the owners of the neighboring lands, the Judge of the Pueblo of San José had been unable to execute the superior order (above recited), and soliciting that his Excellency would grant the tract to them, "either provisionally, or in such way as he would deem fit," while there was yet time for planting, etc. On this petition Jimeno reports (March 23, 1844) that the original order should be carried into effect as to the measurement of the land, and that "as soon as that was accomplished, Señor Romero can present himself with Señor Soto, who says he has a right to the same tract." The Governor thereupon made the following report: "Let everything be done agreeably to the foregoing report .- Micheltorena." The above documents constitute the whole expediente on file in the archives. From the documents produced by the claimant from the files of the Alcalde's office, it appears that on the same day, March 23, 1844, Jimeno communicated to the Alcalde the order of the Governor that the sobrante solicited by the Romeros should be measured, and that if it should be neces- sary a measurement of the adjoining ranchos should also be made-with the under- standing that those parties who should become "agraciados" should bear the expense. It is evident that up to the date of the last order of Micheltorena no grant of the land had issued. That pursuant to the recommendation of Jimeno, the Governor declined to make even a provisional grant as solicited, and that final action in the matter was deferred until a measurement should be made, and until Romero and Soto should present themselves. Jimeno does not seem to have finally adopted the opinion of the Alcalde that Soto had forfeited his rights to the land, for he recommends to the Gov- ernor, as we have seen, that the land should be measured without delay, and that then " Romero should present himself, joined with Señor Soto, who says he has a right to the same land." In this recommendation the Governor concurs. There is certainly nothing in these proceedings which indicate that the Governor had finally determined to grant the land, though it is evident that he regarded the application with favor; still less can any of the orders made by him be construed to import a present grant. On the contrary, it is clear that the Governor refuses to make even a provisional

yours Truly J. H. Pinkerton M.D.

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MEXICAN GRANTS.

grant, but insists that a measurement shall first be made, and then that Romero and Soto shall appear before him, evidently with the view of determining the rights of the latter.

The subsequent proceedings, as shown by documents exhibited by the claimants, confirm this view. On the 15th of January, 1847, Romero and Garcia, the present claimants, appeared before John Burton, the Alcalde of San José, and executed a paper in the presence of the Alcalde and two witnesses, reciting a sale by Romero to Garcia of one-half of the land, and stipulating that both parties should remain subject to the final result, "if the Governor grant it.in ownership." And if the contrary should be " the case, then Garcia should lose equally with Romero, without any right to reclaim the consideration paid." This paper is signed by the parties, the Alcalde, and the witnesses. On the 28th of May, 1847, José Romero addressed a petition to John Burton, Alcalde of San José, representing that, as early as 1844, an order from the former Governor had been sent to the Alcalde's Court requiring a measurement of the land called "Juntas;" that such measurement had not yet been made. He therefore solicits the Alcalde to give him a testimonial of the reports, which, in the year 1844, were sent to the Government, so " that we can be granted said land." The Alcalde in a' marginal order directs that the lands should be measured according to the original order of the Supreme Government. In the margin of the order transmitted by Jimeno, under date of March 23, 1844, the Alcalde writes: " Be it done accordingly on the 9th of April, 1847. The interested parties will proceed to take possession of the menti ned land according to the order of the Governor. I further order, that in case any bordering land-owner demand it, a measurement of his land be ordered. John Burton, J. P." It appears, moreover, that about two months before the date of their last petition, viz .: on the 31st of March, 1847, José Romero had addressed a peti- tion to the same Alcalde, representing that some years before he had solicited a piece of land in the Cañada de San Ramon, and bordering upon lands of Don M. Castro, and that His Excellency had ordered the lands of Castro to be measured, which had never been done. The petitioners further stated that they were two brothers, with a numerous family, and were without any piece of land whatever to raise cattle; they therefore begged the Alcalde to provide for them as soon as possible, that they might retain and locate their stock. The Alcalde on the 5th of April orders that the fulfill- ment of the superior order should be at once proceeded to. The entry in the mar- ginal order transmitted by Jimeno was made on the Romeros' petition of the 23d of March, and not on that of the 28th of May, above referred to; for it directs the meas- urement to be proceeded to on the 9th of April. And, finally, on the 27th of Decem- ber, 1847, K. H. Dimmick, then Alcalde, makes an order in which, after reciting that disputes as to the boundaries existed between the Romeros and Domingo Peralta, he directs that the boundaries be established and adjusted in the manner specified in the order of the Governor, dated 23d of March, 1844. I have stated the contents of these various documents with some particularity, because an attempt has been made since the rejection of the claim by the Board, to show by parol evidence that a final grant issued to the Romeros, which has been lost. We have seen that the last document in the expediente is the order of the Governor of the 23d of March, 1844, adopting Jimeno's recommendation that a measurement should be made before issuing the final

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

grant, or even a provisional one, as solicited by Romero; and even then it does not seem that the grant was certainly to be made, for Romero and Soto were to "present themselves," evidently for the purpose of enabling the Governor to ascertain their respective rights. Nothing further seems to have been done, either by the Government or the petitioners, until 1847 On the 3Ist of March of that year we find the Romeros representing to the Alcalde that the Governor had some years before ordered the land to be measured, which had not been done; and that they were without any piece of land whatever, and they begged the Alcalde to provide for them. The Alcalde there- upon directs that the superior order of March 23, 1844, be proceeded to. On the 28th of May, 1847, the Romeros again petition the Alcalde, representing that as early as 1844, the Governor had sent to the Alcalde's Court an order requiring a measurement of the land; they therefore ask a testimonial of the reports and orders in his office, " so that we may be granted the land." The Alcalde again directs the superior order of March 23, 1844, to be complied with, and on the following day a declaration is made before the Alcalde by Antonio M. Pico, that Don J. Moraga and Don L. Pacheco, the colindantes, had declared that for their parts the surplus of land which does not belong to them "could be granted to the Romeros." And, finally, the deed from Romero to Garcia of January 15, 1847, expressly stipulates that both the parties to it should remain subject to the final result, "if the Governor grant it in ownership, and if the contrary should be the case, then Garcia should lose equally with Romero without reclamation." These documents appear to me to establish beyond doubt that all action of the Government on the application of the Romeros terminated with the order of March 23, 1844, directing the measurement as an indispensable preliminary to a grant, either final or provisional. That during the year 1847, the petitioners made several attempts to have that measurement effected, but apparently without success; and that up to December, 1847, neither they nor any one else pretended that

the order of March 23, 1844, was not the last Act of the Government in the premises. The parol testimony offered to prove that a grant issued will be briefly adverted to. C. Brown swears that the Romeros have lived on the rancho since 1840, and that he always understood they had a grant. He does not pretend to have seen it. James M. Tice swears that he has searched for the title-papers, but has been unable to find them. J. J. P. Mesa saw a bundle of papers in Romero's hands on his return from Monterey, in 1844. The bundle was not opened, but Romero said they were his title- papers. He subsequently saw Micheltorena's order for the measurement of the land. He does not pretend to have seen any grant. It is to be observed that Mesa was examined before the Board, and did not mention this circumstance; and that he can neither read nor write. Inocencio Romero, who disclaims any present interest in the land, swears that he had a grant; that he gave it to Mr. Tingley to be presented to the Board, and that since then he has not seen it. He also states that the grant was made by Micheltorena a short time after he arrived in the country, and that Arce, who was then his Secretary, delivered it to him. The expediente, however, shows that Jimeno was the Secretary, at least until March 23, 1844. And as it is clear that at that date the grant was suspended until a measurement should be made, the title- papers seen by Mesa in the hands of Romero on his return from Monterey in 1844, must have been the papers now produced.

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MEXICAN GRANTS.

The testimony of Mr. G. B Tingley is the only evidence in the cause which approaches proof that a grant issued. This witness swears that on the trial of a suit between Domingo Peralta and the Romeros, a grant from Micheltorena to the latter was produced in evidence; that the petition was for a sobrante; that the signatures were genuine; and that one Sanford took the papers, and he has never seen them since. On his cross-examination he states that the papers produced were the original petition, and the marginal order of reference an information signed by A. M. Pico, then a decree of concession, and final a title in form, with a condition that the grant should not interfere with the adjoining grants. If these papers were produced, they must all, with the exception of the grant, have been procured from the archives, for the petition, the informes, and the decree of concession form part of the expediente which remains on file. That expediente is in evidence in this cause, and contains no decree of concession whatever, nor any draft or "borrador" of the formal title delivered to the party, as is almost invariably the case where such a document issued; on the contrary, the last order of the Governor, in effect, refuses, as we have seen, to grant the petition for even a provisional title until a measurement was made, which clearly was not done until after December, 1847, if at all. Besides, if all these papers were produced from the archives and were delivered to Sanford, how does it happen that only a part of them were restored to the archives, and are now produced? José Ramon Mesa, a witness produced on the part of the United States, testifies that he was present at the trial of the suit referred to by Mr. Tingley; that no formal title was produced by the Romeros, but only a provisional license to occupy, subject to the boundaries of the neighboring proprietors, during the pendency of the proceedings to obtain a title. The witness further swore that he heard Inocencio Romero state to Domingo Peralta, in reply to an inquiry as to what title he had, that he had no title; and that he had intended to take steps to get one, but that all he had was a "provis- ional license." This provisional license is in all probability the order made by John Burton, Justice of the Jeace, in April, 1847, on the margin of the Governor's order of March 23, 1844, for the measurement of the land, and was in compliance with Romero's petition to him of the 31st of March, 1847. The Justice of the Peace directs that "the interested party will proceed to take possession of the land, according to the order of the Government," etc. As a copy of Jimeno's order, with this marginal entry of Burton's, appears to have been furnished to Romero, and by him sent to Garcia, it is in all probability the "license" referred to. It will not be pretended that any rights could be conferred by such an order of an American Justice of the Peace in April, 1847. The record of the suit between Peralta and the Romeros has been produced. It contains no evidence whatever even tending to show that a grant was produced at the trial. Antonio M. Pico, a witness produced by the claimants, swears that he received an order from the Governor to put the coterminous neighbors, Pacheco and Moraga, into possession of their land, and to measure the same for the purpose of separating them from those of the Romeros; that he was directed by the same order to put the Romeros in possession of the surplus; that he summoned the colindantes, but they did not appear; that he did not then execute the order, but repeated the summons to them; that the Romeros made a complaint to the Governor, and he, the witness, received from the latter a new order to carry the former into

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

effect, upon which he told the Romeros to go there-which they did in 1844. This witness explicitly states that no title to the land in favor of the Romeros was ever exhibited to him. The orders referred to by Pico are obviously those contained in the expediente. The first order did not, as he supposes, direct him to put the Romeros in possession, but only to measure the land and certify the result, "so that it might be granted." Romero's complaint or petition to the Governor stating the failure of the Alcalde to measure the land, and asking for a provisional grant, we also find in the expediente, and also the second order of the Governor, which, like the former, only directs the measurement of the land-the Governor having, as we have seen, adopted Jimeno's recommendation that the land should be measured, and Soto and Romero should present themselves before any grant should issue. On the parol proofs alone I should come to the conclusion that Mr. Tingley is mistaken in suppos- ing that a grant for the land was ever produced. But the evidence afforded not only by the expediente, but by the repeated declarations of the Romeros themselves in their various petitions and in the conveyance to Garcia, removes every possible doubt on the question. The facts of the case are unmistakable. The Romeros solicited land, which the Governor was disposed to grant. He directed a measurement pre- paratory to making the grant, and this measurement never was effected. I cannot per- ceive how this Court can recognize these proceedings as giving any title to the lands. It may be admitted that in 1844 they went upon the land, as stated by Pico-though, if so, it is singular that John Burton, Alcalde, should, in April, 1847, have ordered "the interested parties to proceed to take possession of the mentioned lands, according to the order of the Government." But this occupation, not authorized, so far as it appears, by the Government, and only made in pursuance of a verbal permission of Pico, and without the measurement of the land, as required by both orders of Michel- torena, can hardly be deemed to have conferred any title, either legal or equitable, upon the claimants. The case is, perhaps, a hard one, for there seems no reason to suppose that the grant would have been refused if the measurement had been made and Soto's rights had been found to have been forfeited. But no grant, either perfect or inchoate, was made, nor any promise given that one should be made. The peti- tions were favorably received, a provisional grant refused, and a measurement directed. There the action of the Government ended, and certainly such proceedings did not confer such a right of property in the land as this Court can recognize. The claim must be rejected. (June Term, 1857.)

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 43

Author: Munro-Fraser, J. P Publication date: 1883 Publisher: Oakland, Calif. : M.W. Wood Number of Pages: 1206

Author: Munro-Fraser, J. P
Publication date: 1883
Publisher: Oakland, Calif. : M.W. Wood
Number of Pages: 1206