History of Alameda County, California : including its geology, topography, soil, and productions, Part 46

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

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The establishment of the Castros, owners of San Pablo, was on the part of the rancho adjoining the bays of San Francisco and San Pablo, and that of Valencia was considerably east of the western exterior boundary of the large tract. It was well known that there was more land lying between these ranchos as thus possessed than would be required in satisfying the quantity to which the respective donees were entitled. The northern limit of Moraga's Rancho would not interfere with this sobrante. The boundaries of San Antonio and the exterior boundaries of Pinole, as defined in the grant in 1842, were natural objects; and if surplus was thrown off of neither of them there would still be a large tract between them, surplus of San Pablo and Acalanes. Now, if all the exterior boundaries of San Pablo, Acalanes, and Moraga's Rancho were clear, then there would have been no difficulty in presenting a map of the sobrante asked for, if it was composed of a tract bounded by the exterior boundaries of the five ranchos mentioned. But it does not appear that it was customary to regulate exterior boundaries of grants of quantity in the sense of establishing them permanently. Con- sideration was, of course, to be given them, so far as to locate the quantity granted within them; but I think it cannot be questioned that the boundaries to be regulated were such as defined the quantity of the land actually granted, and remained as the boundaries of the land to which the donee was legally entitled under the grant.

This seems to be the view taken by the Board and the Court; for in the finding of facts the Commissioners say that Alvarado issued a grant to the petitioners " requiring them to report a plat of the same as soon as the adjoining ranchos could be surveyed and the extent of the sobrante ascertained, which survey has not been had of said ranchos so as to enable the petitioners herein to define with certainty the boundaries of their said sobrante." If the exterior boundaries of the adjoining ranchos were the ones to be regulated, then that could have been done much better in 1841, when witnesses were living who would be more likely to know of them than those that can be produced at this late day. Moreover, if the Board had supposed that such boundaries were to be regulated, then as it was their duty to fix the bounda- ries with as much certainty as the case would admit, and having the Governor's grants of the said ranchos before them, and living witnesses to point out their boundaries, they would have found them and set them forth in the decree. But they found that the boundaries to be regulated were to be ascertained by surveys. No survey, to this day, has been made of those exterior boundaries of the grants of quantity. When will the surveys that were to make these boundaries clear and develop the extent of the sobrante be made, if the exterior boundaries of the grants were the ones intended ?

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

There will have to be further legislation by the Government to accomplish this, for there is no provision for surveying other than the land confirmed by the decrees of the Board of Land Commissioners and the Courts, and the five ranchos have been surveyed and patented. Undoubtedly the Governor referred to the regulation of boundaries that took place under the Mexican land system upon juridical measure- ment, for that was the "regulation" of boundaries required by law and ordinance, and which usually was expressly provided for in grants. In all cases in which the juridical measurement had not been had under the Mexican Government, this duty of measuring and segregating the lands granted was transferred to and devolved upon our Government; and it is fully performed by our final surveys and patents. Our official surveys take (or rather fill) the place of the juridical measurement required under Mexican law. This has been settled beyond question by the decisions of the Supreme Court. It would therefore appear that the boundaries to be regulated or the surveys to be made, which were to develop the sobrante granted and show its bounda- ries and extent, are those carried into the patents of the said ranchos.

But suppose this view should be incorrect, then, looking into the condition of the surrounding ranchos in 1841, no independent, vacant tract, with certain boundaries can be found. The San Pablo grant was to be located within the following limits, taking the description in the Governor's concessions of 1834 and 1835: "Bounded by the Ranchos of San Antonio and El Pinole, and by a portion of the port of San Francisco." The southeastern boundary, according to these calls, was clearly not defi- nite and certain. It is suggested that the diseño accompanying the petition will make the southeastern boundary more certain, but examination thereof throws very little light on this matter. It will not indicate from what points on the boundaries of El Pinole and San Antonio a line should be drawn to form this boundary. The map or diseño here referred to is found in Volume 2 of maps, Land Commission Records, page 421, on which the southeastern portion of the tract, within which the quantity was to be surveyed, is limited only by the border of the map.

The southeastern exterior line of San Pablo, drawn on the Boardman map attached to the objections of Edson Adams, does not agree with that drawn by the Surveyor- General upon the connected map hereinbefore referred to. So it seems that, with all the light afforded by the Surveyor-General's office, and by actual examination in the field (see Surveyor-General's certificate on connected map), skilled surveyors cannot to-day agree as to the southeastern exterior of San Pablo.

In the third and fourth conditions, both in the decree of 1834 and that of 1835. the donees were to solicit juridical possession of the proper Judge, who should meas- ure the tract according to law, for the purpose of having the boundaries of the grant marked out, the surplus to remain to the nation for proper uses.

But this measurement was not inade by the Mexican Government, and it devolved upon our Government to finish the work that was left undone by the former Government. Our Government has measured the quantity and given it certain boundaries. Were not these certain boundaries the ones that the Governor and the Board referred to as requiring regulation in order to define the boundaries and show the extent of the sobrante granted and confirmed, rather than boundaries that are never to be regulated in the sense of being accurately surveyed and established, that are shown to be uncertain and possibly impossible of ascertainment?

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Again, take Valencia's Rancho Acalanes. The Governor's grant describes it as "the tract of land known by the name of Acalanes, bounded by the Ranchos of San Pablo, San Antonio, and El Pinole."

It is contended that the large tract out of which the quantity granted to Valen- cia was to be measured was not bounded by San Pablo, notwithstanding the calls in the grant; because in limiting the quantity in the fourth condition, and directing the Judge who should give Valencia possession to measure it conformably to ordinance, the overplus remaining for the use of the nation, etc., it was said that the tract to be measured was "one league in length by three-quarters of a league in width, according as is explained on the map," which was with the record of proceedings; and the map had written on its margin that the place asked for was "situated between the arroyo Galindo and the arroyo Grande," those streams being delineated on the map or diseño. In other words, that the map on which was sketched the country to the northwest as far as the coast should control, instead of the aforesaid calls of the grant, because it showed the situation of the three-quarters of a square league that was granted as being between the arroyos aforesaid. Upon this showing it is insisted that a vacant tract is developed between the line formed by those two arroyos (Galindo being a tributary to the arroyo Grande or San Pablo Creek, with junction southeast of the claimed southeastern exterior line of the rancho San Pablo) and the southeastern exterior of San Pablo.

Now, if this were true, there would still be the uncertainty as to San Pablo's southeastern boundary; and it is not clear how this boundary could be "regulated " so as to define such tract. But the vacant tract disappears, admitting the arroyos Grande and Galindo to be the northwestern exterior boundary of Acalines, for then the southeastern exterior line of San Pablo becomes certain, and comes up to said arroyos. The grant of Acalanes ought not to be held repugnant in its terms if they can be made harmonious. Then if the arroyos Grande and Galindo are the western and northwestern boundaries of Acalanes, the call expressed in the grant for San Pablo as a boundary should not be repugnant thereto; and as the southeastern boundary of Pablo was uncertain, this call brought it to the arroyos aforesaid. But I look upon the language of the fourth condition in Valencia's grant as simply a more specific designation of the locality in which the quantity was to be measured, and not as contradicting the general boundaries within which it was to be located.

It follows, then, that the mentioned ranchos had coterminous boundaries, and that the land confirmed was the surplus of some of them that should be defined by their boundaries as established or regulated by final survey.

This fulfills the legal proposition that the grant, having been confirmed as valid, necessarily has definite boundaries; and this was its condition in 1841, under the well- known rule that in law that is certain which is capable of being rendered certain. Any other conclusion would result, it seems to me, in inextricable confusion.

It is contended that the tract confirmed could not have been sobrante of any of the grants, because the grantees had the right of possession of the entire tract until segregation of quantity, and hence the Castros could not have had possession of other than land not within the exterior boundaries of the grants of quantity. Such an objection might be made to any grant of sobrante; still sobrante grants have been

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HISTORY OF ALAMEDA COUNTY, CALIFORNIA.

confirmed, surveyed, and patented. While it is true, as held by the Supreme Court in Van Reynegan vs. Bolton (5 Otto, 33), that the right to make selection of the quantity granted rested exclusively with the Government, and could be exercised only by its officers, and that until segregation the grantee had the right of possession of the entire tract within which the quantity was to be measured, yet the discretion to be exercised by the officers charged by law with the execution of decrees in such cases was not arbitrary but reasonable, and was to be so exercised, in view of the record of the case, the situation of the land, the improvements and possession of the donees, and all other circumstances proper and necessary to be considered, as to fulfill the intent and requirements of the decree, and thus do substantial justice between the United States and the confirmees.

For example, no survey would be deemed a proper one that excluded the improvements and actual possession of the donee against his selection of land thus improved and possessed, provided it was within the boundaries called for.

Now, notwithstanding the donees of the grants of quantity in the case might have had the right of possession to the limits of the larger tracts, yet they did not object to the occupancy and possession of the Castros in this case. Why they per- mitted the Castros to occupy the land is not a matter of just concern of this depart- ment. The Castros received a concession of a tract of vacant, surplus land, and the claim thereunder has been confirmed, and the regulation of boundaries of the neigh- boring ranchos has developed such a tract in the place called for in the grant and decree. Beyond this it is not profitable or pertinent to inquire.

A tract or piece of land, no portion of which shall lie east of the western line of Acalanes, or south of the northern line of Moraga, or west of the eastern lines of San Antonio and San Pablo, or north of the southern line of El Pinole, as those lines have been established by the final surveys and patents of said ranchos, will substantially fulfill the decree, and do justice according to the record of the case as between the United States and the owners of the sobrante grant.

The next question for consideration is, should the survey of El Sobrante embrace any portion of the Rancho La Boca de la Cañada del Pinole ?

As regards the La Boca tract, it is contended by the owners of the sobrante title that it was a part of the sobrante which existed April 23, 1841, and which on that date was granted to the Castros, and subsequently confirmed to them under the Act of 1851; that as it is the duty of the Surveyor-General to follow the decree of confir- mation, he has no right to look at the fact that said tract has been patented in making survey of the sobrante; that it is the duty of the Land Department, under the Act of 1864, to include in the survey all the lands included in the decree.

Against this the owners of the La Boca tract refer to the fact that the survey of their claim was ordered into Court under the Act of 1860 (12 Stats., 33); that the owners of El Sobrante intervened in that matter and were made parties thereto; that the decree of the Court approving the final survey of that claim was entered by con- sent of all the parties; and that, therefore, the sobrante claimants are estopped from demanding that any portion of the La Boca shall be included in their survey, and your predecessor so decided. Cases are cited as supporting this proposition.

As against this position, the sobrante owners, some of them at least, argue in

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effect that under the Act of 1851 the Land Commissioners and Courts had no juris- diction to adjudicate upon title as between third parties, but only as between the United States and claimants; that the primary object of the said Act was to separate lands owned by private individuals from the public domain; that confirmation under the Act of 1851 simply affirmed that the land embraced by the decree was private land; that the patent of the United States under said Act is but a relinquishment of claim, or a quit-claim, to the tract confirmed, and record evidence of the action of our Government upon the claim, operating by relation from the time when the claim was presented to the Board of Land Commissioners; that such patent is simply conclusive as between the United States and the claimants and the privies of the respective parties; that the District Court of California, under the Act of 1860, had no greater jurisdiction, to say the least, than the tribunal created by the Act of 1851, for ascer- taining and settling private claims; that the matter before the Court under the Act of 1860 was simply upon the question of the correctness of the survey, in other words, to determine the question as to whether the survey was an execution of the decree of confirmation, the same as that of the Surveyor-General now under the Act of 1864, or formerly under the Act of 1851; that parties to proceedings before the Court upon approval of a survey under the Act of 1860 are only bound by the decrees, and estopped as to the subject-matter before and within the jurisdiction of the Court, and that all questions of title between third parties, claiming under grants of Mexican origin were necessarily referred to the. judiciary; and cases in support of these propo- sitions are cited.

The foregoing statement is made in order to develop the positions of the con- tending parties in this matter. However, I do not think myself called upon, as I understand the case, to decide or express an opinion as to which is the correct one. It would undoubtedly be necessary to decide the question were it shown that the land patented as the La Boca de la Cañada del Pinole was vacant, sobrante, land within the meaning of and embraced by the decree in the sobrante case. To my mind not only is this not shown, but it seems to me that the records of your office and of the Surveyor-General's office show beyond question that the land patented to the La Boca claimants was not vacant, sobrante, or surplus of any of the five ranchos mentioned, existing as such April 23, 1841, within the true intent and meaning of the decree of confirmation of this case.

The records prove with reasonable clearness that it was neither vacant nor sobrante at that time, and it was well said by one of the contestants in argument, that as the Government has patented the La Boca, the survey of the sobrante should not, in any view of the case, invade such patented territory except upon clear proof that the land so patented is embraced by the decree of confirmation to the Castros.

The question whether the La Boca was vacant and sobrante or surplus land of any of the ranchos mentioned in 1841, and is embraced by the decree of confirmation, is one to be determined by the officers or tribunal upon whom the duty of executing the decree is imposed by law; as only vacant, surplus land, within the meaning of the decree, can be surveyed.

In the first place, the La Boca was not a grant of the surplus or sobrante of El Pinole, or any of the other ranchos mentioned as boundaries of El Sobrante. It was

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not a sobrante grant in any sense, according to its terms; but it was a grant of quan- tity to be surveyed within designated boundaries.

The Land Commission record shows that Ignacio Martinez claimed to have received a grant of the place called El Pinole as early as 1823; he so represented to the Mexican authorities in 1834, stating that he had lost his title-papers, and soliciting a renewal of the same. Record evidence was not found to support his allegations, and he was required to petition anew, which he accordingly did November 10, 1837, stat- ing that as he had mislaid or lost the grant issued to him in 1823, and as it was impossi- ble for him to make it appear that such a grant had been made, he was under the necessity of making a second petition. In this petition he described the land as "three sitios, which are 'Cañada del Pinole,' and that which is called 'La Hambre,' straits of Carquinez, running towards the 'Mar de la Norte,' that is called the bay of Sonoma, adjoining the mouth of the same Cañada del Pinole, as is explained in the adjoining plan." For reasons set forth in the petition he asked for an additional league. (Rec- ord of Evidence, vol. 15, p. 427.)

Thus it will be observed there was nothing in the archives of the Mexican Gov- ernment in 1837 designating boundaries to the place known as El Pinole; and, as pro- ceedings on the petition of Martinez were pending in 1841, when the grant was made to the Castros, and were not terminated until June 1, 1842, when the first and only recorded grant to Ignacio Martinez was issued, it follows that El Pinole had no bound- aries recognized by the Mexican Government in 1841, and consequently that the boundaries declared in the grant to Martinez, in 1842, are the true boundaries of El Pinole, within which the four leagues granted to Martinez were to be surveyed, and within which the boundaries of quantity were to be regulated, as provided in the grant and decree in the sobrante case. That these boundaries did not include La Boca de la Cañada del Pinole will appear from what follows.

While proceedings were pending upon the petition of Ignacio Martinez, Felipe Briones, on the 24th day of July, 1839, petitioned for the grant of the place known by the name of El Pinole, stating that it was then more than ten years that he had pos- sessed said place, comprising three "sitios de ganado mayor," more or less, as desig- nated upon the plan accompanying the petition. Briones further alleged that he had built a house on the land prayed for, "planted a garden of much consideration, and cultivated some lands," by which and "some milking cattle " he had maintained his family, composed of eighteen persons. This petition was referred to Ignacio Peralta, a Justice of the Peace, who reported thereon July 29, 1839, that the Rancho of El Pinole had been occupied by Don Ignacio Martinez since 1824, by order of the Governor pro tem., Don Luis Arguello, and that Briones, in his petition, did not make mention of the land that he (Briones) had occupied, called "El Corral de Galindo," where he kept his cattle, and hence that it would appear as though his petition operated injuriously by asking for the Cañada del Pinole, and not stating that he held the aforesaid "Corral de Galindo." Peralta further reported that Briones went on the land under an arrangement with Martinez, entered into in 1831, the parties "agreeing that their ends should meet;" that Briones "should assist at rodeos, and place his small houses immediate for company."

The report of Peralta does not make it clear whether Briones intended to procure

DASt. H. Hussey

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a grant of all the land occupied by Martinez and himself, or only for that occupied by himself, giving the land he desired the wrong name. But the tract called "Corral de Galindo" embraced a part of the Cañada of Pinole, and it is probable that Briones intended to ask for the land occupied by himself, known as well by the name of La Boca de la Cañada del Pinole and San Felipe, as Corral de Galindo, as facts herein- after mentioned will show. However this may be, the matter of the several petitions was pending when the Governor made the grant to the Castros, and was not finally settled until more than a year afterward by the issuance of grants to Martinez and the widow of Briones, respectively (Briones having died about the year 1840). That the Governor considered Briones entitled to the land occupied by him, and so decided before he issued a grant to Martinez; that Martinez so understood the matter, and acquiesced in the Governor's decision; and that it was well understood that the tract known as La Boca de la Cañada del Pinole, in the possession of Briones, was not included within the exterior boundaries named by the Governor in his grant of El Pinole to Martinez, will appear from the following :-

On the Ist of June, 1842, evidently having in view both of the petitions of Martinez and Briones, and of the report of Peralta, the Governor, Alvarado, who made the grant to the Castros, issued a grant to Ignacio Martinez. In the concession of that date, the tract within which the quantity was to be surveyed was described as "commencing at the mouth of the Cañada del Pinole, eastwardly along the same until it adjoins with the Corral de Galindo, from this place to La Cañada de la Ham- bre, and from thence to the straits of Carquinez."

In the formal title issued the same day the four square leagues granted were to be surveyed within the following boundaries: "By the name of Pinole its limits being from the mouth of the ravine (Cañada) of the same name, in an easterly direction by the same until it joins with the ' Corral de Galindo;' from this place to the Cañada de la Hambre, and along the same to the Straits of Carquinez, the boundaries to termi- nate at the mouth of said Cañada del Pinole into the Bay of San Francisco."

Evidently this description was not to include the "place" called "Corral de Galindo," otherwise La Boca, etc. The ravine (Cañada del Pinole) was to be followed until it adjoined with the "Corral de Galindo; from this place to the Cañada de la Hambre," etc.

The same facts appear, and are placed beyond doubt by the language of the grant to the widow Briones, made twenty days after the grant to Martinez.

The grant to Maria Manuela Valencia, widow of Briones, was made upon her peti- tion of the 8th of June, 1842, in which she set forth inter alia that she was the "widow of the late Felipe Briones, and established in the mouth of the Cañada of Pinole (en la Boca de la Cañada del Pinole);" that for more than eleven years she had "lived in peaceable possession of said place, with a considerable amount of stock, consisting of four hundred head of cattle, having also an adobe house, and more than one thousand grapevines, together with some fruit-trees;" and she prayed the Governor to concede to her "the legal ownership of the said place, containing three square leagues, as shown by the accompanying diseño." The accompanying diseño distinctly called for the land of Ignacio Martinez as a northwestern, northern, and northeastern boundary (see Record of Maps, vol. 2, p. 489). Her allegations accorded with those of her

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husband in his petition of 1839 as regards possession and the length of time that the Briones family had occupied the place, as also with the report of Peralta upon the peti- tion of Briones. The widow's petition, having been referred to the proper judge for investigation and report, was presented to Ignacio Martinez, adjoining owner, who stated concerning the same, June 13, 1842, as follows: "The Señora Manuela Valencia, who petitions for the place, as shown by the annexed diseño, is worthy of being heard, and what she asks may be granted to her, since it does not prejudice my land." (The underscoring in the foregoing quotation is my own.)

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History of Alameda County, California : including its geology, topography, soil, and productions, Part 46

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