History of California, Volume VI, Part 61

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816

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527

ABOUT THE BAY.

26; 1871-2, 458; 1873-4, 63. Population 1,370 by 1880. Contra Costa, i. 17. A number of squatters on Estudillo's rancho gathered at San Lorenzo in 1852-3, forming the so-called Squatterville of the census report of 1852, and the manufacture of farming implements was started, with a few adjuncts in the shape of hotels and shops. W. Hayward settled at the place of that name in 1851, and soon engaged in store and hotel keeping. G. Castro, owner of S. Lorenzo grant, laid out the town in 1854, applying the name of his tract, which did not long prevail. The railroad gave it new life, and in 1876 it received a charter. It has two breweries. Population 1,230 in ISSO. See Grogan vs Haywards. The adjoining San Lorenzo failed to grow, but Haywards, with its fine situation, rivals it, and in the south the railroads have lifted several stations to share the trade with earlier villages, as Niles, Suñol, Pleasanton, first called Alisal, and Washington Corners, the last the supply-place for San José mission. Newark overshadows Centreville. In the east Livermore holds the advantage. A. Ladd settled there in 1865, and built a hotel, which became the nucleus for Laddville; but the approach of the railroad caused W. Mendenhall to lay out Livermore half a mile west- ward, and this gained the supremacy and was incorporated in 1876. It was named after R. Livermore, owner of the grant, whose adobe dwelling stood a mile and a half northward. Cal. Statutes, 1875-6, 913. Population 850 by 1880. The population of the county increased from 8,930 in 1860 to 62,980 in 1880, with property assessed at $42,822,000, of which $19,527,000 repre- sents the value of 1,520 farms, produce $2,385,000, live-stock $940,000. Salt- works, jute and cotton mills, and a sugar factory figure among the industries.

Beyond the range northward a number of small towns nestle in the valleys tributary to the bays of San Pablo and Suisun, beginning with Lafayette, of ante-aurum quietude, founded in 1847 by E. Brown, with the first grist-mill in the county, in 1853, followed by Walnut Creek, Danville, Concord, and other towns, and culminating in Martinez, which, disappointed in its aspira- tions like the opposite Benicia, had to rest content with the position of peace- ful county seat for Contra Costa. It was laid out in 1849 by W. M. Smith, as agent for the Martinez family owning the grant. Larkin's Doc., vii. 134; Sac. Transcript, Nov. 14, 1850. N. Hunsaker erected the first building, and T. A. Brown the first store. In 1850-1 the owner of the Welch rancho laid out a large addition to the prospective metropolis. After an attempt at in- corporation in 1851 a charter was obtained in 1876. Cal. Statutes, 1875-6, 822. Warehouses and salmon canneries helped to sustain it. The entrepôt trade of the valleys was largely absorbed by different shipping points, as Point Pinole and Port Costa, a wheat-shipping place and ferry station for the railroad. Depth of shore water caused it to be selected. The ferry slip was completed in 1879, shipments beginning soon after. At Pinole and round the point are powder-works. The inland Pacheco, on Walnut Creek, with warehouses and flour-mill, was laid out in 1860 on the strength of existing warehouses and trade, and named after S. Pacheco. Antioch, the second town of the county, was the centre for the fertile San Joaquin district. It was first known as Smith's Landing, after J. H. and W. W. Smith, who settled there in 1849, and christened Antioch in 1851. In 1852-3 came brick-making and a store. It grew slowly till the coal developments gave it energy, and enabled it to

528

CALIFORNIA IN COUNTIES.

incorporate in 1872. Population 620 in 1880. Antioch had a share in the traffic of the coal-mining villages of Nortonville, Somersville, and Judson- ville. The chief delivery stations for these important mines are, however, at Pittsburg and at New York, which was started with great flourish early in 1849 as a rival of San Francisco, but failed to rise above a hamlet. It has an interest in the fish canneries, which, with powder-works, figure among the supplementary industries of this coal and farming county. The census of 1852 ascribes to it 317,000 bushels of grain, 85,000 bushels of potatoes, and 51,000 head of stock. By 1880 the population had increased from 2,780 to 12,520, with SS5 farms valued at $6,713,000, produce $1,377,000, stock $507,000. Pittsburg has been referred to as Black Diamond, which properly adjoins it. New York of the Pacific was laid out by Col Stevenson and W. C. Parker, and surveyed by Gen. Sherman. See his Mem., i. 73-4; Colton's Three Years, 417; Buffum's Six Mo., 150; Taylor's Eldorado, i. 217; ii. 48; McCollum's Cal. The latter two scout at its aspirations, yet Cal. Courier, Nov. 2, 1850, still assumes that it will become a port for S. Joaquin Valley. Members of the Kennebec Trading Co. settled here. Boynton's Stat., MS., 1; Hayes' Orig. Doc., 3-4; Friend, 1849, ii .; Pico, Doc., i. 207. The Smith brothers built the first house, and a few more rose upon the numerous lots disposed of during the excitement started by the projectors. After 1850 it was recognized as a failure. Two canneries were established there.

CHAPTER XX.

MEXICAN LAND TITLES.

1851-1887.

THE COLONIZATION SYSTEM-LAND GRANTS BY SPAIN AND MEXICO-INFOR- MALITIES OF TITLE-TREATY OBLIGATIONS OF THE UNITED STATES-EF- FECT OF THE GOLD DISCOVERY-THE SQUATTERS-REPORTS OF JONES AND HALLECK-DISCUSSIONS IN CONGRESS-FREMONT, BENTON, AND GWIN- THE ACT OF 1851-THE LAND COMMISSION-PROGRESS AND STATISTICS OF LITIGATION- PRINCIPLES- FLOATING GRANTS- SURVEYS- FRAUDU- LENT CLAIMS-SPECIMEN CASES-CASTILLERO-FREMONT-GOMEZ-LI- MANTOUR- PERALTA-SANTILLAN-SUTTER-VALLEJO-MISSION LANDS - FRIARS, NEOPHYTES, AND CHURCH - PICO'S SALES - ARCHBISHOP'S CLAIM-PUEBLO LANDS-THE CASE OF SAN FRANCISCO-STATISTICS OF 18SO-MORE OF SQUATTERISM-BLACK AND JONES-ATTEMPTS TO REOPEN LITIGATION-GENERAL CONCLUSIONS-THE ACT OF 1851 OPPRESSIVE AND RUINOUS-WHAT SHOULD HAVE BEEN DONE.

THE subject of Mexican land titles in California is one that with concise treatment might fill a volume. Any one of its dozen leading phases would require much more space than this chapter affords. Yet I give it all the space permitted by a symmetrical plan, taking into consideration its historical importance in comparison with other matters ; and I try to present a comprehensive and satisfactory view.

The annals of colonization in California under Span- ish and Mexican rule, with sufficient explanation of the land-grant system at successive periods, are given in earlier volumes.1 At no time before 1846 had it

1 For instruc. to Com. Rivera y Moncada in 1773 on distribution of lands, see i. 216, Hist. Cal., this series; on pueblo founding, progress, and regulations down to 1800, i. 311-14, 336-8, 343-50, 388-9, 503-4, 564-72, 600-6; general remarks on tenure of lands, with names of early grants to 1800, i. 607-18, 661-3, 717; on ranchos of 1801-10, ii. 111-12, 146, 153, 170-3; on grants of 1811-20, HIST. CAL., VOL. VI. 34 ( 529 )

530

MEXICAN LAND TITLES.

been so difficult for citizens to obtain farms as for the government to find settlers for its lands. The original Spanish occupation of 1769 was a colonization scheine, the presidio being a temporary device to protect set- tlements during the process of development, and the mission another expedient to fit the natives for settlers and citizens ; ultimately, and soon as was vainly hoped, California was to be a country of towns and farms occupied by descendants of the soldiers, civilized In- dians, and settlers of various races from abroad, the whole a community of tribute-paying, God-fearing, Spanish citizens. Three pueblos were founded as nuclei, and naturally for many years the only distribu- tion of lands was in the form of town lots; but after 1786, if not before, the governor could grant ranchos. No such grants were made before 1800, though fifteen or twenty farms were occupied under provisional licenses. About a dozen more were occupied before 1822, the end of Spanish rule, some of them under formal grants; and in the first decade of Mexican independence the number was increased to about fifty in 1832. From the advent of Governor Figueroa in 1833, under the Mexican colonization law of 1824 and the reglamento of 1828, land grants numbered on an average fifty-three each year to 1846, when the total number was nearly 800.2 It is to be noted also that most of the Spanish grants were renewed under Mex- ican forms, being in some instances conferred on the heirs of the original occupants.

ii. 353-4, 375, 383, 414-15, including decree of '13 on reduction of lands to private ownership; grants of '21-30, ii. 546-7, 565-6, 592-4, 612-16; gen. account to '30, with list of 50 ranchos, ii. 661-5; colonization law of '24 and reglamento of '28, ii. 515-16; iii. 34-5; grants of '31-40 in the 5 districts, iii. 611-12, 633-4, 655-6, 676-8, 711-13; grants of '41-5; iv. 620-1, 634-5, 642-3, 655-6, 670-4; grants of '46, v. 619, 627-8, 632, 637-8, 659-60, 665, 669, 675; also local annals of the 3 pueblos, passim. The references to i. 607 -18 and ii. 661-5 are of chief importance for present purposes.

2 These figures, taken after '22 from the Land Com. record in Hoffman's Reports of '62, are only approximately correct, as some of the larger ranchos were presented to the com. in several subdivisions. According to this list, the number of grants to 1800 was 13, and to '22 was 27, which figures amount to nothing, as most of the Spanish grants were renewed in Mex. times, and presented under the regrant, while others were subdivided; no. for '23-32, 11; 33, 25; '34, 33; '35, 31; '36, 37; '37, 27; '38, 43; '39, 59; '40, 37; '41, 61; '42, 51, '43, 64; '44, 122; '45, 68; '46, 87; no date, 20.

531

PROCEDURE.

Under the Mexican law and reglamento any citizen, native or naturalized, might select a tract of unoccu- pied land and apply to the governor for a grant. His petition was generally accompanied by a rude map, or diseno, and was usually submitted by the governor to the alcalde or other local authority for investiga- tion. The alcalde, after consulting other persons in case his own knowledge did not suffice, if he found the land vacant and no objection to the grant, re- turned a favorable informe, or report, on which the governor, if satisfied with the petitioner's qualifications -- including citizenship, character, and ability to utilize the land-wrote on the margin, "Let the title issue," passing the papers to his secretary of state. The latter wrote a formal grant, with a borrador, or blot- ter copy, the former of which, when it had been signed by the governor and recorded in the toma de razon, or record book-sometimes by literal copy, sometimes by mere mention-was delivered to the grantee, who if he had not done so before took pos- session of his land. Meanwhile the petition, diseño, informes, and borrador were united into an expediente and deposited in the archives; and it was the duty of the governor to submit the grant to the assembly for approval, failing to receive which it must be referred to the government in Mexico. After approval the grantee presented his título to the alcalde, who pro- ceeded to put him in juridical possession, the ceremony properly including a kind of survey and fixing of bounds. Only eleven square leagues could be granted to one man or one family,3 most of the grants being

3 Provision was also made for grants of larger tracts to empresarios, or per- sons contracting to establish a colony; which grants if for foreign colonies must be 10 1. from the coast and 20 I. from the frontier; but there were no such grants in Cal., except that to McNamara in '46. At times the petition for lands was made through the prefect or subprefect, and not directly to the gov. By a special order of '45 grants to foreigners-not empresarios- or the ports, like that to Smith at Bodega, must not be made without auth. from the Mex. govt. As the restriction of coast grants to colonies was not quite clear in the law, as the granting of mission lands was apparently for- bidden, and as most of the Cal. grants were of coast or mission lands, the assembly in '40 by advice of the gov. voted to consult the sup. govt on these points, sending a list of grants already made. Leg. Rec., iii. 90-2. But the

532

MEXICAN LAND TITLES.

from one to five leagues; and the conditions of occupa- tion with a certain amount of live-stock and of build- ing on the land within a year were generally added to the grant.

In few if any cases were all these formalities com- plied with, for lands were plentiful and cheap, and the people and authorities indolent and careless of details. The main point was to get a título and to settle on the rancho. Quarrels and litigation were confined to a few boundary disputes with the missionaries or other neighbors, generally settled by arbitration. Some- times there was no diseño, no informe of local officials, no approval by the assembly. Few cases were sub- mitted to the national government. There was usually no formal act of juridical possession, often no survey, and never a careful or accurate one. Boundaries were very vaguely described, if at all. The grant was for so many leagues at a place indicated by name; or a certain area 'more or less' between defined natural bounds; or a fixed extent to be located within certain larger bounds, the surplus being reserved. There was no definitely prescribed form for grants, nor was there any uniformity of conditions, which were some- times omitted.4 Notwithstanding the apparent irregu-

govt never disapproved the grants, and there is no doubt that foreign or empresario grants and mission lands needed or occupied by Ind. or church were alone referred to in the restrictions.

4 Besides the condition of occupation there was attached to many grants one forbidding sale or mortgage of the lands. This was sometimes insisted on by the Cal. govt in circular orders to local authorities; and in certain cases individual grantees were forbidden to sell; but while the authorities might interfere to protect family rights against the acts of an improvident grantee, there seems to have been no general idea that a grant with such con- ditions was invalidated by a sale. And failure to comply with the usual con- ditions of occupation, building, etc., seems practically to have invalidated the grant only in cases where abandoned lands were denounced and regranted to another party.

Sites needed by the government for fortifications or other public uses were reserved; and the territorial govt had originally no authority to grant coast islands, though such authority was given in '38. The gov. had no special authority to recompense public services with land grants or to sell public lands, though he did so; and indeed, the services might naturally serve as grounds of preference in making regular grants. The question whether he could thus exceed the 11 1. limit in payment for service or money for the government was never brought up during Mex. rule; Ind. were on the same footing as others, except that for lack of qualifications they like

533

ATTITUDE OF THE UNITED STATES.

larities and imperfections of land tenure, sometimes mentioned and deplored in official communications even to the extent of declaring the titles technically illegal, it seems clear that under Mexican law and usage the grants were practically held as valid; that is, that under continued Mexican rule the governor's written concessions duly recorded in the archives, not invalidated by regrant after abandonment or by direct act of the supreme government, would always have been respected as perfect titles of ownership; and it may be added that when by increase of population accurate surveys should have become necessary, such survey, notwithstanding the vagueness of original bounds, would have presented practically but slight difficulties. To the last, even when war with the United States was imminent, there was no discrim- ination against citizens of American birth; and there were no fraudulent grants, the only probable irregu- larities being the use of money in the last years to oil the machinery of government and overcome the Mexican tendency to delay, and the informal methods of Governor Micheltorena in purchasing support from Sutter and his men.

When the United States took possession in 1846, large portions of the best lands were found thus occu- pied by Mexican grantees. They were bound by the laws of civilization to say nothing of promises made by Larkin, Sloat, and other officials to protect all existing property rights; and the obligation was formally renewed by the treaty of 1848. That the obligation would be fulfilled in good faith, constant assurance was given during the interregnum of mili- tary rule by the governors in command, who, while permitting the distribution of town lots to go on as before under the municipal authorities, suspended all

others in like circumstances could get but small lots, and on account of their peculiar disposition they were usually debarred from selling. According to Larkin's corresp. and other authorities of '46, $1,000 per league was the maximum price obtained for land sold by private owners down to date.

534

MEXICAN LAND TITLES.

granting of new ranchos, and wisely directed their efforts to a maintenance of the status quo and the temporary protection of prima facie land rights, with- out prejudice to any claimant, pending action by the national government.5 For it was clear to all that such action was required. Under ordinary circum- stances the treaty, so far as it related to property rights, would have executed itself; that is, the Mexi- can land titles if perfect would have been protected by the courts like other rights by ordinary methods. But it was known that the surveys at least were at loose ends, and believed that the titles were in other respects by American standards imperfect. To leave them to their fate before the tribunals would result in confiscation, not to be honorably countenanced by the government. Yet as to the nature of the action to be expected from congress there was much uncer- tainty in official circles, amounting to anxiety in the popular mind. The Californians tried to hope that their rights would be protected in a liberal spirit of equity, though what they knew or thought they knew of American methods was not reassuring. Newly arrived settlers hoped that some way, technically just, would be found to keep a large portion of the Cali- forman acres from being monopolized under Mexican grants, real and pretended; for it was felt that oppor- tunities for fraud were abundant.

The discovery of gold diverted attention for a time to other channels, but it brought to California a horde of treasure-seekers, whose presence in 1849-50 re- newed and intensified a thousand-fold the interest in lands. In another respect the gold craze had a pecu- liar effect. The gold-hunters' ideas of land values rested for the most part on what they knew of lands at Sacramento and San Francisco; and for a time they were inclined to picture the whole extent of California as a succession of gold mines and great towns with

5 See annals of this period in the last chapter of vol. v., Hist. Cal., this series.

535

SQUATTER RIOTS.

here and there a patch of farming land worth $1,000 per acre. Had it been realized that for many years agricultural land must be dear at government prices, the prevalent idea of Mexican grants would have been materially modified both at home and abroad. Well might it have been also in many respects, had the gold been found elsewhere, that in the absence of 'Sutterism' squatterism should have had no raison d'être at the start. Among the new-comers, besides the element utterly destitute of honorable principle, there was another and strong element, mainly from the western states and Oregon, of those strong in the faith that by the 'higher law' they were entitled to lands as free American citizens, to whom all that was Mexican was suspicious and mysterious, not to say diabolic; whose limit of generous equity would have been to permit the preemption by a Mexican grantee of 160 acres adjoining his rancho buildings. Yet these elements could not of themselves control the masses; besides attacking the validity of Mexican law and Mexican titles in general, they had to rely or affect reliance on the plea that particular titles were fraudu- lent, or did not cover the land claimed; and even then, in the great test arising in connection with the squatter riots of 1850 at Sacramento, they were prac- tically defeated in their extreme views by the good sense of the community." This riot and other similar

6 Nowhere has the spirit of the time, with the views actuating land-hungry American settlers, been so admirably presented as in Dr Royce's Squatter Riot of '50 in the Overland of Sept. '85, and in the same author's California, where is clearly set forth the narrow and lucky escape of Cal. from the Scylla of a 'universal squatters' conspiracy ' against Mex. titles, if only to fall into the Charybdis of 'legalized meanness' by which the titles were eventually 'settled.' 'The squatter wants to make out that Mex. land grants, or at the very least all in any wise imperfect or informal grants, have in some fashion lapsed with the conquest; and that in a proper legal sense the owners of these grants are no better than squatters themselves, unless congress shall do what they hope, and shall pass some act to give them back the land that they used to own before the conquest. The big Mex. grant was to them (the squatters) obviously an un-American institution, a creation of a benighted people. What was the good of the conquest if it did not make our enlightened Amer. ideas paramount in the country ? Unless, then, congress, by some freak, should restore to these rapacious speculators their old benighted legal status, they would have no land. Meanwhile, of course, the settlers were to be as well off as the others. So their thoughts ran.'

536

MEXICAN LAND TITLES.

developments receive attention elsewhere as part of the country's annals; here I but briefly outline the prevailing sentiment and uncertainty. It should be noted, however, that this spirit of squatterism by no means ended with the failure of its more radical methods, and the action of congress; but it extended throughout the whole period of litigation, having a most potent influence at the ballot-box, in juries, and through the press. Meanwhile speculators, and espe- cially lawyers, looked with much complacency on the general prospect.

Before action was taken by the national govern- ment, and as a guide to such action, two important reports on Mexican land titles in California were obtained, which gave on the whole a clear idea of the subject, both containing in appendices translations of the most important laws. The first was that of Cap- tain Halleck, dated March 1, 1849, a report which, while accurate and comprehensive in a general way, may be said to have magnified somewhat prospective difficul- ties, suggesting, whether intentionally or not, imper- fections in most of the grants which might enable the government to defend itself by a cautious policy against a fraudulent monopoly of all the most valuable lands.7 The second report was that of William Carey Jones, dated March 9, 1850, at Washington. Jones was sent by the secretary of the interior as a confiden- tial agent to investigate the subject, and his stay in California was from September to December 1849. Being familiar with the Spanish language and legal usages, aided by the authorities, and having the bene-

7 Halleck's Report on Land Titles in Cal., in U. S. Govt Doc., 31st Cong., Ist Sess., H. Ex. 17, p. 118-82. Sent by Gov. Mason to the adj .- gen. at Wash. April 13th. The report was devoted by instruc. to 3 topics: Ist, laws and regulations for granting public lands; 2d, the mission lands; and 3d, lands likely to be needed by the U. S. govt for fortifications, etc. The author's conclusions were, among others, that no grant within 10 1. of the coast was valid; that none was valid without approval of the assembly or sup. govt; that many antedated grants were believed to exist; that remaining mission lands not legally sold belonged to the govt; that grants to lands needed by govt at S. F. were probably spurious or invalid; and that Mex. orders to grant coast islands did not include ' bay ' islands.

537

ACTION OF CONGRESS.

fit of Halleck's work, he prepared a report which was remarkably clear and complete as a general view. But his conclusions were much more reassuring than the purport of Halleck's-somewhat too reassuring for credence, or at least favor, in either Washington or California. While admitting the current belief and probability that fraudulent titles had been made since July 1846, he did not believe such to be many, exten- sive, or difficult to detect. He regarded the titles as for the most part perfect or equitable, that is, such as would have been fully respected under continued Mexican rule; and he advised that for the best inter- ests of the United States and all classes of Califor- nians, an authorized survey of the grants would be sufficient, the government reserving the right to take legal steps against suspicious titles.8

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History of California, Volume VI, Part 61

Author: Bancroft, Hubert Howe Publication date: 1885-1890 Publisher: San Francisco, Calif. : The History Company, publishers Number of Pages: 816

Author: Bancroft, Hubert Howe
Publication date: 1885-1890
Publisher: San Francisco, Calif. : The History Company, publishers
Number of Pages: 816