USA > California > History of California, Volume V > Part 10
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It was contemplated that in ten years from their foundation the missions should cease; that within that period of time the Indians would be sufficiently advanced in Christianity and the arts of civilized life to assume the position and character of citizens. Yet sixty-five years rolled by and found the missionary monks still in the government and administration of the property of the Indians, in possession of twenty-one great mission establishments, raising annually one hundred and twenty thousand bushels of wheat, maize, and other grains, ornamented and enriched with plantations of palm trees, bananas, oranges, olives, and figs, orchards of deciduous fruits, fertile vineyards, and in addition, vast herds of self-moving or live stock, valued, at current rates, three millions of dollars, and bringing enormous annual returns upon its aggregate amount, while thirty thousand Indians lodged in the mission buildings and contributed their labor to the production of this wealth.
In 1833 the Mexican congress ordered the seculariza- tion of the missions and in 1834 Governor Figueroa issued a reglamento providing for the distribution and management of their property.
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After Mexico achieved her independence trade rela- tions with the outside world were established and there soon came a demand for land, though not many grants were made until after secularization of the missions was begun. In 1824 the Mexican congress had adopted a liberal decree for the settlement of her provinces. Lands were to be granted to all who could make use of them, with preference for Mexican citizens, without distinction, except only that due to private merit and services rendered to the country. Comandantes of presidios made grants in the neighborhood of their presidios and alcaldes granted pueblo lots. The larger grants were made by the governors, and on a liberal scale. A square league (sitio), 4,438.56 acres, was the unit, and of these eleven (48,824.16 acres) could be granted to one individual. The theory of the eleven leagues was: one league of irrigable land (tierra de regadio), four superficial ones of land dependent on the seasons (de temporal), and six superficial ones for the purpose of rearing cattle (de abrevadero). The unit of the large grants was called a sitio de ganado mayor-a place for large cattle.
The instructions of Viceroy Bucareli of 17th August, 1773, to the comandante of California relative to the reduction of a mission to a pueblo, also authorized the granting of lands either in community or individually to the Indians of the missions, to settlements of white persons, and to soldiers who should marry Indian women. Under this reglamento the first private land grant in California was made November 22, 1775, to Manuel Butron, a soldier of the Monterey garrison,
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in virtue of his military service and in right of his wife, Margarita, a daughter of the mission. It was for a piece of land one hundred and forty varas* square.
With the secularization of the missions and the development of trade came a great demand for land. To obtain a grant, the first proceeding was an applica- tion or petition to the governor, praying for the grant, specifying usually the quantity of land asked and designating its position, with some descriptive object or boundary, and also stating the age, country, and vocation of the petitioner, together with a rude map or plan of the required grant, called a diseño, showing its shape and position with reference to other tracts or to natural objects. Many of the later petitions, however, did not contain a diseño. The request was then referred to the proper authorities for information concerning the applicant and the land desired, called an informe, and if all was favorable, the grant was made by the governor in form, or by writing on the margin of the application "Let the title issue." The papers (expediente) were fastened together and trans- mitted to the territorial diputacion where they were entered in the record, a copy of all made and filed in the archives and the original delivered to the grantee for his protection, and constituted his title. There was no public or authorized surveyor in the country and there were not any regular surveys made of grants. The conditions of occupation with a certain amount of live stock and of building on the land within a year were generally added, and the grants usually contained a direction that the grantee should receive judicial
*A vara is 33 inches.
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possession of the land from the proper magistrate (usually the nearest alcalde), and that the boundary of the tract should be designated by that functionary "with suitable landmarks." The latter injunction was usually more honored in the breach than in the observance. The reglamento of Felipe de Neve, governor of California, approved by the king, 24th of October, 1781, provided that each settler of a pueblo (poblador) should receive a solar (house-lot) of one hundred varas square and four suertes of two hundred varas each, for planting, together with the free use of the dehesas (pasture lands) and the rights of montes and aguas-the woods and waters. Each pueblo had, for the accommodation and use of future population, her ejidos-vacant suburbs or common lands-compris- ing, with the solares, suertes, etc., the four square leagues provided each pueblo of the Indies by decree of Philip II. The law of 1824 also provided for grants to empresarios or contractors, for colonies, but so far as I know none were granted. The McNamara grant (of 3,000 leagues), which did not go through, was the only attempt of this character.
Towards the end of Mexican rule the scramble for land was very great. It was believed that the loose bond which held California to Mexico would soon be broken and it was understood that the United States intended to acquire the province through the filibustero method. The opinion was freely expressed by the American newspapers that California would soon be United States territory; yet notwithstanding this, lands were freely granted to such Americans as complied with the requirements of law. In few cases were all
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the formalities of the law complied with, for land was cheap and the people and authorities indolent and careless. Sometimes there was no diseño, no informe of local officials, and no approval by the assembly. Boundaries were but vaguely described and occasion- ally, not at all. A grant would be made for so many leagues at a place indicated by name; or for a certain area "poco mas o'menos" (a little more or less) between defined natural bounds; or for a fixed extent to be located within certain larger bounds, the surplus being reserved.
As the Americans came in before and after the conquest they found large portions of the best lands occupied by Mexican grantees. This was, in the eyes of many of them, all wrong. As American citizens they were entitled to land. The big Mexican grant was to them an abomination. What right had any man to claim fifty thousand acres of land? Hadn't they fought for the country, and hadn't the Mexican grants lapsed with the conquest? At least many of them acted upon that principle, and associations of squatters were formed and adopted laws granting to each member the right to preëmpt one hundred and sixty acres of any land that was vacant, or what they" chose to consider vacant.
In 1849, Henry W. Halleck, captain of engineers and secretary of state, reported to Governor Mason the condition of land titles in California, in which he found that many of the provisions of law regarding the grant- ing of lands had not been complied with and expressed the opinion that some of the alleged grants were forged or antedated.
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In July, 1849, William Carey Jones, an adept in the Spanish language and a lawyer skilled in Spanish colonial titles was commissioned by the secretary of state to proceed to Mexico and to California and procure information as to the condition of land titles in California. Jones went first to California, by way of Panama, and after careful and searching examination of land matters proceeded to the city of Mexico. His report dated April 10, 1850, is a model of clear, concise statement of conditions. He found that much of the coast country, lying west of the Sacramento and San Joaquin valleys and south of Sonoma was covered with private grants, but he was convinced that when the country was surveyed extensive and valuable tracts would be found remaining after leaving to every grantee all that his grant called for; besides which was the vast region north of Sonoma, the valleys of the Sacramento and San Joaquin, and the gold region of unknown extent along the foothills of the Sierra Nevada. "The grants in California" the report says, "I am bound to say, are mostly perfect titles; that is, the holders possess their property by titles that, under the law which created them, are equivalent to patents from our government; and those which are not perfect- that is, which lack some formality or some evidence of completeness-have the same equity as those which are perfect, and were and would have been equally respected under the government which has passed away. Of course I allude to grants made in good faith, and not to simulated grants, if there be any such, issued since the persons who made them ceased from their functions in that respect." The report says that
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any measure calculated to discredit, or cause to be distrusted the general character of the titles in Cali- fornia, besides the alarm and anxiety which it would create among the ancient population and among all present holders of property, would also retard the substantial improvement of the country. The com- missioner suggests an authorized survey of the grants would be sufficient to protect the interests of the United States and all classes of Californians, the government reserving the right to take legal steps against suspicious titles .*
In March, 1851, Congress passed a bill, introduced by W. M. Gwin, to settle land titles in California. It provided for a board of three commissioners before whom every claimant under a Spanish or Mexican title must, within two years, present his claim with the documentary and other evidence on which he relied. Either party might appeal to the district court and from its decision to the supreme court. All lands for which claims were rejected or not presented were to be regarded as part of the public domain. Benton earnestly opposed the bill, protesting against the plan of a commission as a violation of the spirit of the treaty of Guadalupe Hidalgo, and declaring that to oblige the Californians to defend their titles before three tribunals would amount to confiscation instead of the promised protection.
The board organized in December, 1851, in San Francisco and opened its sessions in January, 1852.
*According to the Geological Survey the land area of California is 99,898,880 acres, of which 20,000,000 acres is arable land. The Spanish land grants covered about 8,500,000 acres.
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With the exception of one term in Los Angeles in 1852, the sessions were held in San Francisco until the final adjournment in 1856. In all, 813 cases were presented; 612 claims were confirmed; 178 were rejected, 19 discontinued, and 4 were still pending in 1880, twenty- nine years after the passage of the law, according to the official report to the 24th session of the California legislature.
The ninth article of the treaty of Guadalupe Hidalgo provides that Mexicans who remained in the ceded territories of New Mexico and California and became thereby citizens of the United States should be "Main- tained and protected in the free enjoyment of their liberty and property." All the tribunals before whom the Californians were required to prove their titles were to be governed in their decisions by this treaty, the law of nations, the laws, usages, and customs of the government from which the claim was derived, the principles of equity, and the decisions of the supreme court of the United States, so far as they were applicable. That substantial justice was ultimately done, so far as the validity of the grants was concerned, can hardly be denied, but just the same, the Cali- fornians lost their lands in the process of defense, as Benton stated would be the case if the land commission bill passed. The injustice of requiring a proprietor who had been in possession for ten, twenty, or thirty years, whose right was well known and had never been disputed, to appear before a court whose proceedings were strange and whose language was unknown to him, and produce the documentary proof of his title- documents he may have lost, or perhaps never had-
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will be readily understood. His opponent was the powerful United States of America who could and did employ the most astute lawyers to fight him, and who took advantage of every petty technicality and legal quibble to defeat his claim. To such an extent was this carried as to cause severe strictures from the supreme court. Says Justice Grier (United States vs. Johnson): "Nor is it a part of the duty of council representing the government to urge microscopic objections against an honest claimant, and urge the forfeiture of his property for some oversight of the commissioners in not requiring proof according to the strict rules of common law." Justice Field in United States vs. Auguisola says: "The United States have never sought by their legislation to evade the obligation devolved upon them by the Treaty of Guadalupe Hidalgo to protect the rights of property of the inhabi- tants of the ceded territory, or to discharge it in a narrow and illiberal manner. * They have desired to act as a great nation, not seeking, in extending their authority over the ceded country, to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the government they superseded." Justice Swayne in United States vs. Moreno says: "A right of any validity before the cession was equally valid afterwards, and while it is the duty of the court, in the cases which may come before it, to guard carefully against claims originating in fraud, it is equally their duty to see that no rightful claim is rejected. No nation can have a higher interest than the right administration of justice."
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Such opinions illustrate the lofty integrity of the supreme court and add lustre to the names of those who composed it.
By questioning the title the law made the land hard to sell and the owner in order to raise money for taxes, support, and defense was obliged to part with a good portion at a fraction of its value, and thus vast tracts fell into the hands of lawyers and speculating land sharpers. The result concentrated in a few hands a great part of the agricultural lands and worked great detriment to the development of the state, while to the individual Californian the result was disastrous. If the land commission decided in his favor, the govern- ment agent usually appealed to the district court and thence to the supreme court at Washington; the struggle for "protection" lasting anywhere from five to twenty- five years and long before a final decision was reached the once wealthy proprietor was a beggar. The case of Mariano Guadalupe Vallejo will illustrate this. In the early forties General Vallejo was the richest man in California. A man of magnificent proportions, handsome, proud, and dignified, he was a ranchero prince, living on his great estate, and entertained all visitors to California with unbounded hospitality. A warm and consistent friend of Americans, he advo- cated their cause in spite of the abominable treatment he received at the hands of the Bear flag party. In his History of California (MS) he testifies that his grant of the rancho of Petaluma was not finally con- firmed until 1875, after he, tired of fighting squatters and lawyers, had given up his rights to the land. His claim to Rancho Nacional Soscol was rejected by the
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supreme court on the ground that he had bought it from the government-that the governor had no power to sell public land. He could give it away for nothing but could not exchange it for food and clothing for his soldiers; a most unjust ruling. In this case Justice Greer, dissenting, said: "I cannot consent, by my silence, that an inference should be drawn that I concur in the opinion just delivered. I cannot agree to con- fiscate the property of some thousand of our fellow- citizens who have made purchases under this title and made improvements to the value of many millions, on suspicion first raised here as to the integrity of a grant universally acknowledged to be genuine in the country where it originated. * * * This government has bound itself by a solemn treaty to respect all just claims which the citizens of California held at its date. I shall not comment on the good faith with which this obligation has been observed, or whether it was acting in good faith to these new citizens to compel every owner of a grant or title under Mexico to enter into a long and expensive litigation beginning at home and ending here; a litigation, too, with one who paid no costs, while it was ruinous to the claimant, who, if he retained one-half for himself, when successful, was considered fortunate. Instead of protecting their possessions, they were, in many instances, left a prey to squatters and champertous attorneys. * In a country where land had no value, where it was freely given to all who asked, without money and without price, in amounts not to exceed fifty thousand acres, it will be supposed that there were few cases to be found where the government could raise money by
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the sale of it. This is, perhaps, the only case to be found where such a sale has been made. The laws of 1824 and 1828 were colonization laws; they regulated grants of land made for this purpose. * * * This sale to Vallejo was not a colonization grant nor were the regulations of 1824 and 1828 applicable to it. * * * That there was a sale by the governor of California for a consideration paid, when the governor could find no other way to raise funds for the support of the govern- ment is satisfactorily proved. It was a matter of general notoriety at the time. The copy of a letter from the governor to the grantee accompanying the title is found among the archives. * But we are about to forfeit the title on the ground that the gov- ernor, though he might give away land to any amount, had no authority to sell it for money. It is assumed that because there was a special power given by statute to grant to colonists, therefore he had no other power. This court has frequently decided that the authority of a governor to make such a grant will be presumed from the fact that he did make it and that it lay upon those who deny the power to prove the want of it. * * * If this treaty is to be executed in good faith by this government why should we forfeit property for which a large price has been paid to the Mexican government, on the assumption that the Mexican government would not have confirmed it but would have repudiated it for want of formal authority? Vallejo was an officer of the army, high in the confidence of the government. His salary as an officer had been in arrears. In a time of difficulty he furnished provisions and money to the government of the territory. How do we know that
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Mexico would have repudiated a sale of 80,000 acres as a robbery of its territory, when any two decent colonists having a few horses and cows, could have 100,000 for nothing?
"I believe that the Mexican government would have acted honestly and honorably with their valued servant, and that the same obligation rests on us by force of the treaty.
"Now that the land under our government has become of value these grants may appear enormous; but the court has a duty to perform under the treaty which gives us no authority to forfeit a bona fide grant because it may not suit our notions of prudence or propriety.
"We are not, for that reason, to be astute in searching for reasons to confiscate a man's property because he has too much. Believing, therefore, that in the case before us the claimant has presented a genuine grant for a consideration paid, which the Mexican govern- ment would never have disturbed for any of the reasons now offered for confiscating, I must express most respectfully, my dissent."
I have quoted at some length from the opinion of this great jurist because his argument seems to me to be unanswerable. In 1863 congress, by special act, provided that actual purchasers under the Vallejo title should have the preference to enter the land at one dollar and twenty-five cents an acre. The grant covered the towns of Benicia and Vallejo.
Thoughout the long period of litigation the squatter influence was very great. They elected legislatures, senators, and congressmen; judges and court officials;
THE DISEÑO OF THE SAN ANTONIO RANCHO
Granted by Don Pablo Vicente de Sola, Governor of California, to Sergeant Luis Peralta, August 18, 1820. The grant was by metes and bounds and was for II leagues (44,800 acres) in what is now Alameda county, covering the sites of Oakland, Alameda, and Berkeley.
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they formed a secret league and sometimes opposed an armed force to legal ejectment. At San Antonio (East Oakland) a mounted cannon in the plaza with its squad of armed men was pointed out as the evidence of title by which they held the land, and to such an extent were the operations of the squatters carried that Domingo Peralta was arrested, put in jail, and made to pay a heavy fine for attempting to drive some trespassers off his property.
The working of the land law of 1851 was oppressive and ruinous. Seven-eighths of the claims submitted to the commissioners were valid and genuine titles, yet as a rule the proprietors lost all their possessions in the effort to save them. Their lawyers took immense fees in land and cattle. They became immensely wealthy while their clients were reduced to poverty. They were also in some cases, accused of aiding and abetting the plundering of their clients. A noted case in point is that of the San Antonio Rancho, granted in 1820 to Luis Peralta, a sergeant of the San Francisco presidio. This grant was for eleven leagues; it covers the sites of Berkeley, Oakland, and Alameda, and was, perhaps, the most valuable grant made in California. In 1842, Don Luis divided the property among his four sons and confirmed the division in his will of 1851 .* The story of this grant is a long one and I intend some day to write it up. Squatters occupied the rancho, killed the Peraltas' cattle and "preempted" their land. A false survey was made cutting off some seven thou-
*Land granted to citizens was not subject to execution for debts of grantee; was descended from father to son, and involved feudal liability such as bearing of arms, etc. Land was seldom granted to women.
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sand acres of redwood timber and all of the water front. The diseño of the original survey, by Lieutenant Martinez of the San Francisco presidio, shows the lines on the bay running to deep water (profunda mar) at the island of Yerba Buena, and those on the north to the summit of the Sierra de Contra Costa. The patent was never given to the Peraltas until after the death, not only of Don Luis but of his four sons. Their lawyer, now a very old man, is still living. His wealth is estimated at seven millions. The descendants of the original proprietors are living in poverty.
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