History of California, Volume VI, Part 62

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

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In July 1848 a bill was reported to the United States senate from the committee on public lands, coming up again for discussion at the next session in January 1849. To ascertain the claims and titles to lands in California and New Mexico this bill provided for the appointment of a surveyor-general, register of lands, and receiver, to act as a board of land commissioners, and to present for congress in 1851 a detailed report on all titles. Opposing this bill, Senator Benton offered a substitute providing for a recorder of land

8 Jones' Report on the Subject of Land Titles in Cal., Wash. (1850), Svo, 60 p .; also in U. S. Govt Doc. The latter contained a list of all the grants of which Jones found record in the archives. 31st Cong., 21 Sess., Sen. no. 18. Preliminary corresp. of July '49 in Cal. Mess. and Doc., '50, p. 112-18. The instruc. of the com. of the land-office required Jones to make minute investigations, including every title, etc., extending his research to N. Mex. and Mex .; but those of Sec. Ewing noted the probable impossibility of doing so much. Jones went overland to Mex. from Cal., and made some slight research there. He was later prominent as an attorney in many of the Cal. land cases. J. included in his report a mention of the archive rec- ords affecting land titles, a more complete statement appearing in 1 Wallace, 230, as follows: Expedientes numbered 1-579; many incomplete exped., maps, borradores, etc .; book of copied titles, '33-5; toma de razon, or record-book, 2 vols, '43-5; Jimeno Index (semi-official), '33-44; Hartnell Index (of titles in '47); book of marks and brands '28-9, containing mention of 20 or more early grants; journals of the assembly, '29-46; and miscel. doc. in official correspondence, etc.

538

MEXICAN LAND TITLES.

titles and authorizing action by the district court- final for values of less than $5,000-against grants believed to be invalid. These bills being recommitted and put to rest, the matter did not come up again till September 1850, when the reports of Halleck and Jones had been received, and California had become a state. Then Senator Frémont introduced a bill- supported by nobody, opposed by Benton, and finally tabled -- providing for a board of commissioners, with appeal, for the claimant only, to the district and supreme courts. Next in December 1850 Senator Gwin intro- duced a substitute for the Frémont bill, omitting the provision that the decision of commission and district court was to be final against the United States, and being in substance nearly identical with the bill finally passed; and in January 1851, after a discussion, dur- ing which Benton renewed his original substitute in amplified form, the bills were referred to the judiciary committee, which reported a new bill; and this with more or less amendment, after an earnest discussion, was finally passed on February 6th, by a large major- ity. There was no discussion in the house, where the bill was passed on March 3d and became a law.9

It is of course impossible to analyze here the bulky debates of the senate. Fremont, during his brief term, was in a sense the representative of the Mexi- can grantees; but Benton made himself their great champion, urging a speedy and liberal, not to say careless, confirmation of the claims. Most earnestly and even violently he protested from first to last against the plan of a commission as a violation of the spirit of the treaty, declaring repeatedly that to oblige the Californians to defend their titles before three tribunals would amount to confiscation instead of the promised protection. Doubtless, however, there was a feeling among senators that this Benton-

9 See Cong. Globe, 1848-51, through index under 'California.' There are many references to this subject in these years in various govt reports and doc., but they simply show that all recognized the importance of some action, and that all favor a spirit of cautious justice in treating the Mex. titles.

539

POLITICAL AND CIVIL SENTIMENT.

Frémont-Jones combination might not be acting from disinterested motives. On the other hand, Gwin, mindful of the votes that had elected him, and might again be useful, represented the squatter element, the horde of landless new-comers, whose interests and rights must not be lost sight of. He argued plausi- bly and ably that the proposed plan was not an injus- tice to the Californians, because their titles, if legal, valid, and equitable, even if inchoate, were to be fully confirmed; that it could not be unconstitutional, because it had been the method adopted before, as in the Louisiana claims; that it was not a violation of the treaty, since it was adopted expressly to carry out the treaty; that protection by the courts was all that any American citizen could desire for his property, but that this plan provided a special tribunal and special rules of action for others, so that strict law might be tempered by equity in favor of these new citizens. He and all agreed that the treaty must be fulfilled in a spirit of liberal justice; but in so novel and complicated a case only the highest courts could determine what was just. Nothing was said by him or others in reply to the practical part of Benton's argument, that the claimants would lose their land in the process of defence; but it was perhaps thought that the same argument might apply to all systems of legal protection, or that if Californian estates were reduced in litigation from their magnificent propor- tions of some 50,000 acres each no great harm would be done.

I think it evident that in the minds of senators there was a strong undercurrent of feeling strikingly similar to that noted in California. The fever was raging in Washington as well as Sacramento. It was not of 500 or 1,000 rancheros, living on stock-farms owned by themselves and their fathers, and of little value by American standards, that the senate was thinking, but of a marvellous land of gold-mines, great towns, and limitless prospects; not of a quiet, pastoral

540

MEXICAN LAND TITLES.

people, but of a horde of speculators, hungry for gold and power and land; not so much of the valid claims, as of the fraudulent ones; of the unknown, more than the known. All was mysterious; the McNamara bugaboo was buzzing in the senatorial ear; the Roman church might present a plausible claim for vast mis- sion tracts; spider-like speculators had probably woven their webs over the spots where forts must be built; the mining region might be covered by diabolically contrived títulos; Frémont, Sutter, Vallejo, and Larkin might seize all that McNamara had left; British sub- jects might have the wires laid to secure as individuals what their nation had lost; American settlers and miners might find themselves without homes, the con- quest practically annulled. The courts would decide wisely and fairly; nothing below the supreme court could be implicitly trusted in such an emergency; it was best to make haste slowly. All agreed that jus- tice must be done; it would be time for generous lib- erality when the exact state of things should be known. Meanwhile, it was well to act with caution, reserving the various informalities of Mexican titles as weapons of defence that might be needed. The feeling was for the most part an honest one, and the resulting action consistent; of its other merits and its results I shall speak later,

The act of 1851, omitting details, provided for a board of three commissioners, with a secretary and law agent skilled in Spanish, to be appointed by the president for three years, and to hold sessions at places named by the president. To this board, duly author- ized to administer oaths and take testimony, each claimant under a Spanish or Mexican title must, within two years, present his claim, with the docu- mentary and other evidence on which he relied, it be- ing the duty of the board to decide promptly on the validity of the claim, and to certify its decision to the district attorney. Either party might appeal to the dis-

541

COMMISSIONERS.

trict court, which might take additional testimony, and from its decision to the supreme court. All the tribunals were to be governed in their decisions "by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the supreme court of the United States, so far as they are applicable." All lands for which the claims were rejected or not presented were to be regarded as part of the public domain ; confirmed claims were to be surveyed by the surveyor-general, and on the presentment of his certificate and plat, a patent-conclusive only as against the United States, and not affecting the rights of third parties-would be issued from the general land-office; but the district judge might, on petition of a contesting claimant, grant an injunction to prevent the obtaining of a pat- ent until there had passed sufficient time for deciding the controversy.10 In the case of towns to which grants had been made, or standing on lands granted to an individual, the claim was to be presented, not by the lot-owner, but by the municipal authorities or the original grantee.11 The provision on its face, in respect of both spirit and methods, was an excellent one.

The board was appointed from May to September 1851, organized at San Francisco in December, and opened its sessions for the presentment of claims in January 1852, two claims being presented the first day, but the first decision not being reached till August. With the exception of one brief term at Los Angeles in the autumn of 1852, the sessions were held at San Francisco until the final adjournment, on March 1, 1856, the time having been twice extended

10 Later the survey itself might be brought into the district court, and its decision appealed to the supreme court.

11 In U. S. Stat. at Large, iv. 631; Dwinelle's Col. Hist., add. 203-6; also printed with extracts from the the treaty, instructions to the com., and regu- lations adopted in a separate pamphlet. Cal. Com. for Settling Private Land Claims, S. F., 1852. The salary of each com. was $6,000, of the sec. $4,000, and of each of five clerks $1,500. The sec. was allowed no fees, except for furnishing certified copies.

542

MEXICAN LAND TITLES.

by congress. The commissioners, seven in number including all changes, were able and honest men, though knowing nothing of the Spanish language, and very little of Mexican law and customs.12

In September 1855 only three claims had been finally decided. Some general statistics for the first ten years, or down to 1862, are appended, by which it appears that of the 813 claims presented, 591 were finally confirmed and 203 rejected, 264 being finally settled by the board, 450 by the district court, and 99 by the supreme court.13 So far as figures tell the

12 The original board appointed by Pres. Fillmore was composed of Harry I. Thornton, James Wilson, and Hiland Hall. Wilson's appointment not being approved by the senate, he retired in Oct. '52. G. A. Henry was ap- pointed in his place, but did not act. In March '53 Pres. Pierce appointed as a new board Alpheus Felch, Thompson Campbell, and R. A. Thompson, who took their seats in April. Campbell resigned in June '54 and was succeeded by S. B. Farwell. The secretary was J. B. Carr at first, but Geo. Fisher from Jan. '52 to the end. The U. S. law agent was Geo. W. Cooley to March '53, V. E. Howard to Jan. '54, and later John H. McKune. The asst law agent was Robt Greenhow from Aug. '52, and Lewis Blanding after G.'s death from June '54. The instruc. to the board issued Sept. 11, '51, by the com. of the gen. land-office contain nothing requiring special notice, unless it be that to require of the claimant a survey and map to accompany his claim, which was not, I think, in most cases insisted on. The original order had been to hold sessions also at Sta B. and Mont., but this was revoked; and an at- tempt in '54 to obtain another session at Los Ang., though backed by the Cal. legislature, was unsuccessful. Several men appointed as commissioners declined to serve on account of the low salary. The leading law firms em- ployed by the claimants before the land com. in '52 were Halleck, Peachy, and Billings, about 80 cases; Clarke, Taylor, and Beckh, 40 cases; and Jones, Tompkins, and Strode, 25 cases.

13 See, however, note 45; 258 cl. were presented by the end of May '52; 505 by the end of '52; 812 at the expiration of the two years March '53; and one by permission of congress in '54; total 813. Conf. by l. c. 521, rej. 273, discontinued 19; finally settled by 1. c. 264, conf. 104, rej. 141. Claims ap- pealed to d. c. 549, conf. 510, rej. 39; finally decided 486 (that is, in '62, but 36 cl. at least seem later to have been appealed of the 115 that in '62 had not been dismissed, hence the 450 of my text), conf. 452, rej. 39; no. of the 1. c.'s decisions sustained by d. c. 446-or 412 conf. and 34 rej .; no. of ditto overruled 103-or 5 conf., 98 rej. Claims appealed to s. c., 63 (or 99 as above explained), of which 35 conf. and 2S rej .; no. of d. c.'s decisions sus- tained by s. c., 38-or 24 conf. and 4 rej .; overruled, 25-or 24 conf. and 1 rej. These figures are from the Table of Land Cases published as an appendix to Hoffman's Reports in '62. There are many errors in that list, and it does not of course, show the later record of 36 claims (that is, the no. I have found in my incidental search of the decisions, but there were probably more) that came before the s. c., 18 of them being confirmed and 18 rejected.

The decisions of the land com. have never been printed, except a few in- cidentally in pamphlets and newspapers; and the same is true of the southern district court existing only in '55-66. The decisions of the northern d. c. in '53-8 by Judge Ogden Hoffman were published at S. F. '62 as Hoffman's Reports, i. Some later decisions in land cases are found in McAllister's Re- ports and Sawyer's Reports; and those of the s. c. in U. S. Sup. Court Reports,

543

CONFIRMATIONS AND REJECTIONS.

story, the district court seems to have been more favor- able to claimants than the board, overruling many more rejections than confirmations; but it should be noted that the court often heard new testimony by which the claimants strengthened their weak points. It is known that a few fraudulent claims were finally confirmed, and that a few good ones were rejected ; yet there is no reason to doubt that the three tribunals performed their duties honestly and ably, whatever may be said of the system under which they had to work. In the matter of appeals and other details of legal method, slightly modified from time to time, there was some complaint of injustice; one of the southern judges and one or two representatives of the United States did not escape plausible charges of un- worthy motives and conduct; and often there appears as in most litigation what seems to the unprofessional mind a strange preference for legal quibble where com- mon sense would better serve the purpose; but re- specting these points I have no space for discussion, nor am I perhaps a competent critic. The chief ap- parent injustice was in these respects: in obliging claimants to come with their witnesses at great expense from the extreme south to San Francisco; in the policy of the attorneys for the government who fought the claims over and over on petty technicalities which ought never to have figured except in a few test cases ; in the frequent espousing by the United States of one weak claimant's cause to defeat a stronger one; and especially in the appealing of many cases as a mere formality to a higher tribunal.14

especially those of Howard and Wallace. A complete register of all the claims, somewhat on the plan of the Hoffman appendix, but more extensive, tracing each case through the board, both courts, and the final survey, would be a most desirable work.

14 In Hoffman's Reports may be noticed many cases in which the judge says in substance: 'This case was conf. by the l. c .; no opposition is made here by the U. S .; it seems all right and is confirmed.' Meanwhile the poor ranchero was perhaps addressed by his lawyer somewhat like this: 'Your claim has been appealed; the U. S. are bent on defeating it; only by the most superhuman efforts can it be saved; yet give me more land and more cattle, and I will do my best '!

544

MEXICAN LAND TITLES.

Obviously no annals of litigation nor even digest of principles adopted can find place here, but of the lat- ter some of the more important and interesting may be noted. It took the commission and courts a long time to reduce the original system of grants to the simple basis presented earlier in this chapter, though Jones had embodied the correct idea in his report. Every petty irregularity was repeatedly insisted on by the government's attorneys, and generally had to be overruled more than once by each tribunal; but strict and technical ruling ultimately gave way for the most part to liberal and equitable principles, though not without dissent in high places.15 A perfect title did not require presentment to the board, but if so presented must abide by the result. Inchoate titles, on the other hand, were forfeited by non-presentment.16 July 7, 1846, was the date assigned as the end of Mexican rule, though the territorial authorities had not been overthrown or the capital taken till over a month later, and grants of later date were held to be invalid. 17 The board and United States courts re-

15 Justice Daniels dissented from many of the early decisions of the s. c., favoring a strict ruling. He held that irregularities springing from the dis- orderly and revolutionary state of the country, and supported by doubtful testimony of a degraded and ignorant people, should not be countenanced by a mistaken idea of liberality, when a strict ruling would transfer the land from a few ignorant Mex. and unscrupulous monopolists to numerous intel- ligent settlers. 18 Howard, 550. Even the U. S. attorney proclaimed 'the constant policy of the U. S. not to interpose far-fetched or capricious objec- tions against claims which seemed to be made in good faith for small quantities of land.' 1 Black, 267. Still, a license to occupy land followed by long occu- pation was not recog. by the U. S. as giving some an equitable title. The 10 1. coast limit and the lack of approval by the assemb. were favorite ob- jections at first; also the lack of authority for granting lands, until over- thrown by the decision that the acts of an official must be presumed to be legitimate, if not disputed by his own govt. 19 Howard, 343. Some points for which I have no room here may be found in the later list of specimen case.

16 A perfect title was one fortified by juridical possession and survey. In one instance the grantee of 2 1. got formal possession of 6 1 .; but after his claim to 2 1. was confirmed he tried to hold the whole on the ground of a perfect title. He was held to be bound by the decision of the court and the patent. 2 Sawyer, 527. Sometimes part of a grant was conf., while the rest became public land through non-presentment. 1 Id. 207.

17 Two grants of later date were confirmed by the d. c., in one of which the issuance of the grant had been ordered before July 7th; and it was held that delay in the purely ministerial act of drawing up the title ought not to invalidate the claimant's rights. 1 Hoff. 279; but this was reversed by s. c. The declaration of the Mex. treaty com. that no grants had been made since

545

FLOATING GRANTS.

quired the claimant to show a prima facie title; but their decision was on the validity of the original grant, confirmation and title being final only as against the government, and the rights of third parties being left unprejudiced to be settled by the California courts. 18

The district court often took new evidence, but the supreme court never; nor would the latter consider alleged frauds or irregularities in the acts of the former, of the commission, or of the surveyors. No phase of the whole matter gave rise to more complications than that of 'floating' grants, that is, grants of a given area within bounds including a greater area; and when there were two or more of these grants within the same greater bounds, the difficulties were not dimin- ished. The grantee was entitled to locate his land as he pleased, and to hold the whole tract until final sur- vey, except as against other grantees. But in the final survey he must select his land in compact form, and in the case of two grants the patent was final even if the later grant chanced to be the first patented. These floating grants afforded the strongest tempta- tions for fraudulent surveys, and gave rise to the most

May 13th was often urged by the U. S., but was held not to affect grants actually made between that date and July 7th. 1 Wallace, 412. It was also argued that grants made after the war of conquest was begun were invalid; but it was held that the war was not avowedly waged for conquest, and if it had been there was no authority for the position that the title acquired by con- quest 'relates back to the date of its inception.' 1 Hoff. 249.

18 Cases before the Cal. s. c-about 60 of which have been examined for my purpose-were chiefly disputes between such parties respecting parts of Mex. grants. This court took no action on the validity of original grants or of acts of the l. c., d. c., and s. c., but dealt with boundary disputes, conflicting claims, or temporary rights under inchoate titles. Cal. Reports. Sometimes two claims were presented for the same land under the same grant; but it was the duty of the l. c. to consolidate each cl .; and the courts refused to consider any 2d cl. except for new and decisive evidence in the case of a rejected claim. There were several such cases in connection with the Sutter grants, but individual claims had to abide by the general decision. 1 Black, 339; 2 Id. 610. The existence of rival claims enabled the U. S., as else- where remarked, to work against one title by espousing another. Pend- ing the great litigation, rights under Mex. grants were (in theory at least) protected under Mex. law and equity; a prima facie title presented to the I. c. was good against all 3d parties till final rejection, and the title if finally confirmed related back to the date of filing the petition. 33 Cal. 448; 10 Cal. 88; 34 Cal. 253; 35 Cal. 85.

HIST. CAL., VOL. VI. 35

546

MEXICAN LAND TITLES.

serious troubles with squatters.19 The board rejected many claims for lack of definite location, but new testimony in the district court generally overcame this objection. Both the lower tribunals were disposed at first to require strict compliance with the condition of building and occupation within a year, but the supreme court took a liberal view of this matter, accepting as excuses Indian hostilities, political disturbances, and other obstacles; and no delay was fatal unless so un- reasonable as to create a presumption that the grantee had abandoned his claim, and later tried to resume it on account of the increased value of land.20 As to

19 The theory seems to have been that just as the Mex. govt could go on making new grants so long as enough was left to satisfy the first grantee, he having the right to protest or to protect himself by selecting his land at any time, so the U. S. govt could go on surveying and patenting the later grants, especially as the courts had presumably considered the first grantee's claim, and as he had had the right to contest the survey. Prior occupation under a provisional license was deemed also to give the junior grantee the preference in selection. A grantee might, however, so definitely select his land by occu- pation as to estop his claim to any other location. The permission to select the location was deemed not an obligation but a concession on the part of the U. S. govt. The first grantee often got a later grant of the sobrante, or sur- plus, of the whole tract; and in such cases the courts did not require the same formalities as in an original grant. Dividing lines often settled by the grantees by arbitration or litigation were conf. by the courts. On floating grants, see 5 Wallace, 445; 13 Cal. 373, 478; 18 Cal. 535; 21 Cal. 552; 33 Cal. 102; 1 Sawyer, 553; 1 Hoff. 184, 204. The surplus was generally reserved for the govt in the grant. Another class of grants was those for a certain area, ' more or less,' within fixed bounds, the meaning being simply that the area was an estimate, though all was granted; and so it was confirmed by the courts where the estimate was within a fraction of a league; thus 2 1. 'poco mas o menos' was good for anything up to 3 1. Sometimes, however, by clerical error, both the 'more or less' and the reserve of the surplus clauses were attached; but the latter was properly disregarded when the bounds were clear and the estimate tolerably accurate, otherwise the former.

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History of California, Volume VI, Part 62

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