USA > California > History of California, Volume VI > Part 63
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20 The failure to perform conditions in fact merely rendered the land sub- ject to denouncement and regrant; it could be argued only by the granting power, not by adverse claimants; indeed it was a question whether any right of defeasance or forfeiture passed from Mex. to the U. S. The d. c. finally took so liberal a view on performance of conditions that some of its decisions were overruled. The condition forbidding alienation of a grant had no force under U. S. laws. 1 Wallace, 423; 1 Hoff. 145, 191; 5 Cal. 108; 10 Cal. 589; 13 Cal. 458.
Ignorance of the Span. language caused much confusion and many ludi- crous blunders in the litigation, as did ignorance of Mex. customs. Halleck, Land Titles, 160, 140, says that not one in ten docs was correctly translated, only one judge and none of the com. understanding the language or laws; and he notes that one claim was registered by the l. c., because the grantee lived with his family in the pueblo, though this was encouraged and almost required by the Span. laws. As late as '62 plantar bienes raices is trans. 'plant trees.' 2 Black, 597. Throughout the Fossat case in the l. c., un sitio de ganado mayor is trans. 'a league of the larger size.' A decision of the Cal. s. c. was
547
ARCHIVE EVIDENCE.
evidence in support of a grant, the expediente and record from the archives were properly given chief importance; next coming the original grant and proof of occupation. It was not enough to prove the loss of archives that might have contained the record; but it must be shown that the record had existed. In the absence of archive evidence, other proofs must be ex- ceptionally full and conclusive; and in resisting fraudu- lent claims the courts had to decide that "documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, will not suffice if it is obtained from private hands."21 The most numerous and dangerous fraudulent claims were those resting on grants and other documents written after 1846, bearing the genuine signatures of governor and other officials, but antedated. It was not difficult to obtain parol testimony in support of such titles, but archive evidence was not easily forged. The methods in vogue with the courts under technical rules of evi- dence seem not to have been very well adapted to the detection of such frauds. Some of the cases are noted elsewhere.22 The matter of surveys was one of the
reversed by itself because it had rested on a trans. of vista la peticion, etc., as 'having seen the petition.' And many amusing instances might be given. 213 Wallace, 434; 1 Black, 227, 298; ] Hoff. 170.
22 In the 'crooked' cases, as in some of the straight ones, it is surprising how few witnesses were called, the most important not appearing. For instance, Pio Pico and his secretaries were but rarely called to prove their signatures, the testimony of some obscure countryman who had seen them write being deemed sufficient. Before the l. c. the claim was offered with a witness or two to prove occupation and signatures, the evidence being some- times left intentionally weak on some point, as perhaps location, so that if possible the cl. might be rejected on that point alone, and not much attention be paid to others. Then before the l. c. new testimony was introd. to strengthen the weak point; one or two unimpeached witnesses were found in possession; and a confirmation sometimes obtained against the suspicions of the court. Finally on appeal to the s. c. the presumption that the gov. had properly attended to all preliminaries, etc., and the impossibility of consider- ing objections not urged in the lower court were relied on. But this pro- gramme often failed, for the s. c. had a way, in suspicious cases, which it could not reject, of remanding them for a new trial; and few frauds could pass a second ordeal in the d. c. See 1 Hoff. 190; 1 Wallace, 326, 352, 400.
The title to minerals was not included in a Mex. grant; and as such a title on private land was unknown to the U. S. system, it became a puzzle what became of the title. It was finally held to belong practically to the grantee; for if it belonged to another there was no license for that other to enter pri- vate land to dig for gold. This was an important question settled in the Fremont case.
548
MEXICAN LAND TITLES.
most complicated phases of the land litigation, one that lasted longest, that offered the greatest opportunities for fraud, and that presents the greatest difficulties to the investigator. At first, after final confirmation of a grant, a survey was made by the surveyor-general, or rather by one of his deputies, who had no instruc- tions except to follow the calls of the grant, and whose judgment was often more or less influenced by the guidance of interested parties. On this survey the commissioner of the land-office at Washington, if he could see or be made to see no serious objection, issued the final patent. After 1860 the survey itself was submitted to the district court, whose decision could be appealed to the supreme court; but the courts con- fined themselves mainly to the approval or rejection of the survey as a whole, or to the correction of radical errors, still leaving much to the surveyor's discretion, and not closely criticising his use of that discretion. The change was necessary, but led to endless litigation, and to the ruin of such grantees as had saved a part of their lands in the earlier ordeals.23
With a view to illustrate as fully as possible the general course of the great litigation on Mexican titles, detailed annals of which cannot be presented in the space at my disposal, I have thought it best to append in fine type a list of specimen cases.24 It in-
23 Inaccurate surveys rej. by govt or refused by claimants; modifications or new surveys ordered and again rejected; technical blunders of officials allowing the reopening of cases; misunderstandings between the surv .- gen. and the land-office; successive acts of congress settling old difficulties and opening the door to new ones-it is beyond my province to go into details of this confusion. The survey was the only question in most of the later s. c. cases, and the court only decided whether the survey was in accord with the decree of the d. c. 5 Wallace, 827. The Rodriguez case presented perhaps as inany difficulties as any. 1 Id. 582; see also 1 Id. 658; also a case in U. S. circuit court, 2 Sawyer, 493.
24 Specimen cases alphabetically arranged by names of claimants. The numbers are those of the land commission, abbreviated l. c., the U. S. dis- trict court being abbrev. d. c., and supreme court, s. c.
Alviso, Cañada Verde, Sta Cruz, 359, conf. in all the courts on a permis- sion to occupy of '38; favorable reports of local officials, with occupation and undisputed ownership from '40, though there was no grant. 23 Howard, 318.
Alviso, Rincon de los Esteros, Sta Clara, 278, conf. to children of grantee by a former wife. The widow's claim to ¿ was not sustained by the
549
SPECIMEN CASES.
cludes examples of most classes of claims that were presented to the land commission and courts, showing
Cal. s. c., on the ground that a Mex. grant was a donation, and not part of the common property. 13 Cal. 458. There were other similar decisions.
Argüello, Pulgas, S. Mateo, 2, conf. by all 3 courts. This claim was on the grant of '35, not on that of about '24; but on the earlier grant and occu- pation the el. sought to include the Canada de Raimundo on the w. It was held, however, that the later grant was decisive on bonndary, especially as the cañada had been granted to Coppinger in '40. (Greer-Canada de R .- 21, conf.) It was in this case that the l. c. adopted the regulation permitting alverse claimants to contest before the board the conf. of interfering claims, the decision being pub. as Land Com. Organiz., Acts., etc., S. F., 1852. There was also pub. Jones' Argument for the cl. in this case, S. F., '53. In this early case was overruled by the U. S. s. c. the objection urged by the U. S. that a grant within 10 1. of the coast was illegal. 18 Howard, 539. In the sur- vey the w. line of Pulgas was fixed at the w. base of the range of hills sepa- rating it from the cañada instead of the summit where it should have been; but the owners of the cañada found no remedy (26 Cal. 615), as the patent of Pulgas was held to be final. In '78 a bill was defeated in congress to allow the courts to investigate the surveyor's alleged fraud; but in '85 the efforts had not been abandoned.
Armijo, Tolenas, Solano, 26, conf. d. c. This was a floating grant of 3 1. in '40, conflicting in boundary with another of '42 (Ritchie, Suisun, 3). The later grant was first surveyed, and in the Cal. s. c. (13 Cal. 373) A.'s claim to certain land within the survey on the ground of prior grant and actual occupa- tion was not sustained, the patent being final as held in many like cases. In the U. S. s. c. in '66 (5 Wallace, 444) A.'s claim as earlier grantee to locate his grant first was not allowed, but apparently on the ground of earlier pos- session by the later grantee under a provisional concession, and of a former settlement by arbitration.
Bernal, Rincon de las Salinas y Potrero Viejo, S. F., 30, conf. d. c. Against this claim there was made in behalf of the U. S. an earnest and unsuccessful effort by a mass of conflicting oral testimony to prove forgery or changes in some of the papers. 1 Hoffman, 50. My Library stands near the site of the old Bernal rancho house.
Berreyesa, Milpitas, Sta Clara, 757. This claim was founded on a permit by the alcalde of S. José in '34, and a diseño of '35 regarded as spurious by the 1. c. which rejected the claim. In '65-77 the case was before the d. c. and s. c., and the claim was defeated, the victory of the settlers being celebrated in '77 by a barbecue. The real merits of this case are wrapped in mystery. In his Relacion, Antonio Berreyesa gives a sad account of how his father and brothers lost their land and were driven mad.
Berreyesa, Pntas, Napa, 236, conf. on a grant of '43 to two brothers, by whom with parents and other brothers the rancho was occupied from '39. Heirs of the other brothers set up a claim on the ground that the grant was made with a view to common occupancy by the whole family, but were defeated. 21 Cal. 514. This may very likely have been one of the cases where a decision on legal technicalities is popularly regarded as oppressive, yet the justice of the decision is clear even to the unprofessional mind.
Bidwell, Arroyo Chico, Butte, 143, conf. by all the courts. Dickey, the grantee of '44, had a 'Sutter general title,' q. v., which was finally rejected; but he had also what was deemed a regular grant on which the cl. was conf. This gave rise to some criticism, as it was the only one of the general title grants conf., and on account of B.'s wealth and official standing; but the decision seems to have been a just one.
Bissell, Mare Isl., Solano, 307, conf. on a grant of '40-1 to Victor Castro. The U. S. later bought the isl. for a navy-yard, their title resting on a deed of '50 from Castro to Bissell. In '77 cl. under an earlier deed of C. to Bryant
550
MEXICAN LAND TITLES.
the general principles on which decisions were based, and covering a variety of minor points not specified in
were trying in the d. c. to establish title; and even C. is said still to have regarded himself as owner.
Bolcof, Refugio, Sta Cruz, 214, conf. to sons of the grantee on a grant of '41 and patented. Majors' cl. to a part (no. 207) being rejected. But later it was proved that the grant had been to the Castro sisters, whose names had been erased fraudulently and B.'s substituted. Thereupon in '66-70 the claim of Majors, who had married one of the sisters, to } of the rancho was sustained in d. c. and s. c. (11 Wallace, 442). It was held that while former proceedings were final against the U. S., wrongs to 3d parties might be relieved by a court of equity.
Brown, Laguna de Santos Calle, Yolo, 70, rejected by 1.c. and d. c. in '60. The grant of 11 1. by Pico, '45, to Prudon and Vaca was declared a forgery, like other papers; a permission to occupy by Vallejo, '45, invalid and prob. antedated, and the oral testimony perjury in part and suspicious throughout. This was a typical spurious claim in behalf of men who never occupied the land.
Cambuston, 11 1., in Butte, 511, conf. by 1. c. on a grant of '46, depos. in the arch., '50, without other doc. proof, though there was some testimony of occupation in '47; conf. by d. c. somewhat doubtfully because the U. S. made no argument against it and because of the judge's unwillingness to disregard uncontradicted evidence (1 Hoff. 86). This was the first of the spurious claims before the s. c., where the chief argument in its support was the 'presumption ' that Gov. Pico attended to all preliminaries, had full authority, and acted honestly. This was held invalid; a grant supported by no archive evid. must be strictly investigated. It was sent back that the cl. might have a chance to meet objections; since they might have been misled by the actions of the U. S. agent (20 Howard, 59); and was rej. in '59 by the d. c.
Carrillo, Sespe, Ventura, '49, conf. by l. c. for 6 1. on a grant of '33, but by the d. c. reduced to 2 1., 'seis ' having been fraudulently substituted for 'dos ' in the original papers. More, the owner, claiming to have bought 6 1. in good faith, tried by every means, fair and foul, as is alleged-including one or more ' crooked ' surveys-to retain all or part of his rancho, and there was much litigation with settlers on the surplus govt lauds. His final claim, that of being allowed to purchase the land excluded by his patent under the act of '66 was decided adversely in '77. More's murder is supposed to have been an outgrowth of this land affair.
Carpenter, Sta Gertrudis, Los Ang., 339, conf. on a grant of '34 to Josefa Cota de Nieto, as were all the divisions of the old Nieto tract, on grants of '34 (no. 351, 400, 402, 404, 459). The cl. of the Nietos, children of the grantee, resting on the original grant or concession of 1784, was rejected (no. 423). Manuel Nieto and his heirs, under Fages' permit, occupied the whole tract till '34, when it was divided among 2 sons and the widows of 2 others, the 4 getting grants from Gov. Figueroa, which were conf. as above. In '43, Josefa Cota, one of the widows, with auth. from the gov., sold Sta Gertrudis to Carpenter. Her children, failing before the l. c., applied later to the Cal. courts, claiming as heirs of Manuel, since, if Manuel had a title, their mother's sale was invalid. But the Cal. s. c. in '57-62 (7 Cal. 527, 21 Cal. 455), after several, changes of opinion resulting from inaccurate translations, decided that Manuel had no grant, only a permit to occupy, and that Josefa, as gran- tee and owner, had made a legal sale.
Castillero, Sta Cruz Isl. (or Sta Catalina?), Sta B., 176, conf. by all the courts. This differed from the isl. grants to Osio and others finally rejected in being made under a special order of the Mex. govt in behalf of C., not re- quiring concurrence of the assemb., being duly recorded, and bearing all the indications of genuineness. 23 Wallace, 464.
551
LIST OF CLAIMS.
the preceding pages of this chapter. The genuine claims, the validity of which was never questioned
Castillero, New Almaden, Sta Clara, 366; Fossat, Los Capitancillos, 340; Berreyesa, S. Vicente, 503. The 2 adjoining ranchos of Larios (Fossat el.) and Berreyesa, in a cañada about 15 m. s. of S. José, were occupied from about '34, and granted in '42. In a range of low hills in the southern part of the cañada (the bound of the ranchos being the main Sierra farther s.), on one of the ranchos and near the partition line, was a mineral deposit known from early times, and in '45 denounced as a quicksilver mine by Castillero, who formed a comp. to work the mine, obtaining from the Mex. govt approval of his acts and an order for a grant of 2 1. of land. Forbes & Co. of Tepic, became chief owners, and before '52 the property had become of great value, and had already been the subject of much litigation. Before the l. c., d. c., and s. c. from '52, private litigation continuing unabated, was waged a great triangular fight-with the U. S. masquerading as one of the three contending interests-for the mine as a prize. The cl. of Fossat and Berreyesa, being of unquestionable genuineness, were finally conf. by '58, though restricted by strict rulings to narrower limits than ordinarily would have been accorded, and though a desperate effort was made to exclude the mine by identifying the low range of hills with the Sierra as the s. bound. Castillero's land cl. was rejected from the first, as there had been no grant, and as the land was already private property; but the mining cl. was conf. by l. c. and d. c. in '61. Of the equity of this cl. there could be no real question, and the d. c. disregarded the wholesale and absurd charges of forgery and perjury that were made; but the s. c. was so far influenced by these charges that-while not basing its decision on this ground-it felt justified in a strict ruling, and rejected the cl. on the ground that the alcalde had no jurisdiction in the de- nouncement of mines, and that other formalities had not been exactly com- plied with, etc. Three of the judges dissented from what was doubtless an unjust decision. This was in '62. Meanwhile, by official survey of '60, agreeing with the grants, the line between the ranchos had been so located as to leave the mine on the Fossat land, now the property of Laurencel & Edgerton. Now, the mining comp., having lost its claim, but controlling the Berreyesa rancho, made a final effort to overthrow the survey, and move the line westward sufficiently to include the mine. By what seems hardly more than plausible and ingenious special pleading, they succeeded before the d. c .; but the new survey was finally rejected, and the original conf. by the s. c. in '63, thus ending this famous case, of which but a faint idea has been given in this ontline. Being defeated, the comp. in '64 sold the mine for $1,750,000 to a new comp. of N. Y. and Pa, which bought in the opposing interests, and down to '80 took out over $12,000,000 in quicksilver. Before the Amer. and Brit. claim com. at Geneva, '73-4, Barron, Forbes, & Co., as Brit. subjects, presented a cl. for $16,000,000 and interest, alleging that, by an unjust decis- ion of the courts, under threats of eviction by a U. S. marshal, in time of war, when no help could be obtained from the home govt, they had been forced to sell their property for a nominal price. The cl. was unanimously disallowed. U. S. Gort Doc., Ist Sess., 43d Cong., For. Rel., iii. 164-8.
Castro, Cañada de los Osos, Mont., 703, rejected by l. c. and not appealed, was a fraudulent grant of '44, by Micheltorena. It bore the forged seal of the Limantour papers, and L. was a witness to prove signatures.
Castro, S. Pablo, Contra Costa, 390, conf. to heirs of Fran. M. Castro on grants of '34, though the rancho had been occupied by the family long before. Litigation on this land still in progress in '85, has been one of the famous cases; but has resulted from complications subsequent to the conf. of '58, and not belonging here. See also life of C. in Pion. Reg.
Castro, Sobrante, Alam. and Contra Costa, 96, conf. for 11 l. on a grant of '41. The excitement of '78 et seq. about this rancho grew out of the fact that the grant was a 'surplus' of several others, and when the lines of these
552
MEXICAN LAND TITLES.
except by interested attorneys, and which were finally confirmed, yet in connection with which, through the
others were fixed by final survey. Either the sobrante was much larger than supposed in '41 or '57, or else there was a ring of U. S. land surrounding it open to settlers.
Cervantes, Rosa Morada, Mont., 56, conf. by 1. c., the decision being pub. in a separate pamphlet of '52. It was Hoffman's first case in the N. d. c., and was rejected because the grant of '36 had not been approved by the assembly, and because the grantee had not complied with the conditions of building within one year; but the overruling of this decision by the s. c .- its first case -produced a less strict ruling on these points in later cases. It was sent to the S. d. c., conf., and judgment affirmed by s. c. '55. 1 Hoff 9; 16 Howard, 619; 18 Id. 553. Jones' briefs before 1. c. and s. c. were separately printed.
Cota, Rio de Sta Clara, Sta B., 225, rej. l. c. conf. d. c. '57 on grant of '36. A survey of '67 was rejected, and a new one made in '70. In '72 an attempt was made to overthrow the survey on a diseño from private hands, so as to include 17,000 acres held by settlers. This appears from an argu- ment of J. F. Stuart in behalf of the settlers, Wash., '72. S., as was his cus- tom, argued that the original conf. was wrong.
Dominguez, Prietos y Najalayegua, Sta B. This cl. was never presented to the l. c., though a genuine grant was made in '45; but it was confirmed by a special act of congress in '66, this action being procured largely by misrep- resentation, and through sympathy for an old family owning the site of the famous 'big grape-vine.' The great struggle which made this one of the causes célebres was over the location, for which the only guide was the origi- nal diseño and oral testimony. The grant was apparently for a tract of little comparative value on the Sta Inés, north of the mountain range; but the scheme of the real claimants was to locate it south of the range so as to cover valuable lands adjoining or including the Sta B. pueblo lands. The plan was not finally successful, but for several years intense excitement prevailed among the Barbareños arrayed in two hostile parties. A good account is given in the Sta. B. Co. Hist., 195-209, with copy of the diseño.
Enright, Sta Clara Co., 514, conf. by all the courts, though there was no grant, on a marginal decree of 'granted ' on a favorable report of '45, supple- mented with juridical possession and occupation.
Estudillo et al., S. Jacinto, 115-16, 263, conf. There were 2 ranchos and a sobrante of 5 1., ' more or less.' The latter was conf. for the full extent of 11 1. 1 Wallace, 311. Hayes, Em. Notes, 448-52, an attorney in the case, ex- plains how, in '66 et seq., the owners, by crooked surveys of the 3 ranchos, succeeded in stretching the sobrante across 12 miles of intervening space so as to include the tin mines of Temescal!
Frémont, Mariposas, March Ist, conf. by l. c. and s. c. on a grant of 10 1. to J. B. Alvarado in '44. The d. c. rejected the cl. for non-fulfilment of the conditions of occupation, building, etc., as the grantee never saw the land, and it was not occupied till after the U. S. got Cal. True, the Ind. made occup. unsafe, but that was known when the conditions were inserted in the grant. The overruling of this decision by the s. c. established a very liberal rule for later cases in the matter of conditions; and in this case-the 3d decided by the s. c .- was definitely conceded the validity of inchoate equitable titles and of floating grants. 17 Howard, 542; 18 Id. 30; 1 Hoff. 20. In finally locating his floating grant, F. included several mines; and in the ensuing troubles some lives were lost; but it was decided in '59 that the min- eral title could belong to no other than the owner of the land. 14 Cal. 279, 380.
Fuentes, Potrero, Sta Clara, 496, rej. by all the courts. This was one of the most impudent claims that ever went beyond the l. c. It rested on a grant of '43, certif. of record by Jimeno (J. not being called to prove it), tes- timony of Man. Castro and Abrego that the sign. seemed genuine, and testi- mony that records had been lost which might have contained something about this grant ! 22 Howard, 443.
L
RIGHT OR WRONG.
553
costs of a protracted litigation, the greatest wrong was done, figure somewhat less conspicuously in this
Galbraith, Bolsa de Tomales, Marin, 205, conf. by l. c. and d. c., because evidence making a prima facie cl. was not rebutted, though it was weak, and a date had been changed in the grant. It was sent back by the s. c., but finally conf. on new evidence. 22 Howard, 89.
Garcia, 9 1. in Mendocino, 113, rej. on a passport of '44 to go and select and occupy the land, which was done. A grant was asked for in '46, but never issued, though alcalde's reports were favorable. 1 Hoff. 157; 22 Howard, 274.
García, Nogales, S Bern., 383, conf. but no formal decree on survey en- tered in '59; therefore a rehearing was granted in '70. 1 Sawyer, 383. G.'s possession had not, however, been disturbed.
Gomez, Panocha Grande, Fresno, 569, rej. by l. c. on a petition, diseño, etc. of '44, with testimony on a grant that had been lost. From '51 the N. Idria Quicksilver Min. Co. was in possession of what was cl. to be part of Panocha. G.'s cl. was conf. in the d. c. '59, by consent of the U. S. district attorney, Pacificas Ord, who was owner of half the cl. Then Wm McGarra- han bought the other half from Gomez, and a survey of '62 was made to in- clude the N. Idria mine. But the cl. was brought before the s. c. and rejected in '65 as invalid if not fraudulent; for there were two theories, one that G. really took the first steps to secure a grant from Gov. Micheltorena, his friend, and the other that all the papers were forgeries supported by perjury. McG., however, claiming to have bought in good faith after a supposed con- firmation, claimed under the act of '66 a right to purchase the land, but was successfully opposed by the N. Idria comp. He got from a Wash. court an order, directing the sec. of the interior to issue a patent, but this was reversed by the s. c. in '69. All phases of this famous "MeGarrahan claim' are in- volved in a mysterious and hopelessly entangled maze of legal technicalities and legerdemain. I cannot attempt to follow the case here, nor have I any opinion to express as to its merits. 23 Howard, 326; 1 Wallace, 690; 3 Id. 752; 9 Id., 298; Gomez, Lo Que Sabe, MS., 226-43; Harte's Story of a Mine; and no end of special pamphlets, some of which are collected in McGarrahan, Memorial, S. F., 1870. The case bids fair never to reach an end, McG. and the Panocha Grande Quicksilver Min. Co. being indefatigable in seeking re- lief from the courts and congress.
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