History of California, Volume VI, Part 65

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

USA > California > History of California, Volume VI > Part 65

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

Sutter, Sobrante, 92, conf. by l. c. and d. c., but rej. by s. c. on a grant of Feb. 25, '45, for the surplus of N. Helv. to the extent of 22 1., signed by Gov. Micheltorena at Sta B. This grant also was burned in '51, and the evidence in support of its authenticity seems weak and wholly insufficient, though I have little doubt that S. did get from the gov. such a paper in return for his services; but the cl. was rejected on the ground that such a grant, even if genuine-made by Gov. M. out of his capital, engaged in civil war, on the verge of defeat, made to a band of foreigners on whom his success depended, without due formalities of law, not recognized by his successors, kept secret till the U. S. were in power, etc .- constituted no equitable claim which the U. S. were bound to confirm. 21 Howard, 170 et seq.

Sutter, 'general title,' 226, 235, 303, 605, 626, 658, et al., conf. by l. c. and d. c .; but rej. by the s. c. This gen. title was a doc. signed Dec. 22, '44, by which Gov. M. conferred on each person who had asked for lands and got a favorable report from S. a title to the lands solicited, a copy of this order issued and certified by S. to serve as such title. The ostensible motive was to save the time and trouble of making so many individual grants; the real motive was to bribe S. and his settlers to aid M. against his foes, the or- der being sent up to the fort before the volunteers started. The certificates were given out by S. within the next year, except some fraudulently ante- dated in later years; but none of the claimants had really applied in good faith for lands before the general order was signed. The l. c. and d. c. conf. such of these cl. as seemed genuine on the ground that the title with actual occupation by settlers constituted an equitable cl. on the U. S .; but the s. c. held that the general title, not depending in any way on the colonization laws, was at the best but a promise to distribute lands, if successful, among

560

MEXICAN LAND TITLES.

of legal lore, eloquence, wit, and sarcasm; dozens of special pamphlets on the subject were published, be- sides the regular briefs and court records ; and outside of the main struggle between the claimants and the United States, there was always a complicated litiga- tion in progress between quarrelling claimants. The great battle had to be fought again before the supreme court, where by an unjust decision the mining claim was finally rejected; and after another struggle in behalf of a survey that should locate the mine on pri-

his supporters, and his defeat abrogated whatever power had been conferred on S. No exception was made in cases where the cl. had been put provisionally in possession by Gov. M. until he could decide. 21 Howard, 408, 412; 23 Id. 255, 262, 476.

Swartz, N. Flandria, 655, 787, rej. on a grant of '44 by all the courts. I Hoff. 230; 1 Wallace, 721. This cl. was presented to l. c. without evidence, which was Ist introd. in d. c. The court was in doubt about the legality of this course, though inclined to permit it; but the cl. was rejected as a forgery.

Teschemacher, Lupyomi, Sonoma, 507, rej. by l. c., conf. by d. c., but remanded by s. c. and finally rejected. 22 Howard, 392. This was a cl. not supported by archive record, with slight evid. of occupation and genuineness of signatures. The court evidently regarded it as antedated or forged, and required such testimony in such cases as 'to make the antedating irreconcil- able with the weight of proof.'

Vallejo, Agua Caliente, Sonoma, 741, rej. by l. c., but conf. by d. c. and s. c. 1 Black, 283; 11 Wallace, 566. The opposition was based on the sale of the land by the grantee to V. before the final grant was made, thus enabling V. to evade the restriction to 11 1.

Vallejo, Petaluma, Sonoma, 250, conf. on grant of '43, 10 1., and purchase of '44, 5 1. Though the cl. is recorded as conf. and appeal dismissed in '57, Gen. V., Hist. Cal., iv. 385-6, says that final confirmation was not secured till '75, after he, tired of fighting squatters and lawyers, had given up his rights to the land.

Vallejo, Soscol, Solano, 291, conf. by l. c. and d. c., but rej. by s. c. on a grant and sale by Gov. Micheltorena in '43-4. There is no doubt of the legiti- macy and good faith of the transaction; the genuineness of the doc. was not questioned in the lower courts, and in the s. c. only in a general, quibbling, absurd way; but the cl. was rej. on the ground that the gov. had no power to sell govt lands. 1 Black, 541, He could give it away for nothing, but could not exchange it for food to support his soldiers ! Two of the judges dissented from this most unjust ruling, and in '63 congress by a special act provided that actual purchasers under the Vallejo title should have the pref- erence to enter the land at $1.25 per acre. The grant covered the towns of Benicia and Vallejo; and there was much litigation later between different interests.

Vasquez, Soulajule, Marin, 245, conf. d. c. '56. In '74 Mesa, holding a part of the same grant that had not been presented for conf. to the l. c., in- sisted that the conf. of V.'s part was a conf. also of his part; but he was de- feated in all the courts. 21 Wallace, 387.

West, S. Miguel, Sonoma, 251; rej. by l. c., but conf. by d. c. and s. c., 22 Howard, 315. The grant of '44 was for 1} 1., but after '46 the quantity was fraudulently changed to 6 1. The s. c. hell, however, that this did not invalidate the genuine cl. for 1} 1.

561

NOTABLE CASES.

vate lands controlled by the company, the latter was forced to yield and part with its property at a nominal price of $1,750,000. The Frémont claim to the Mariposas was another cause célèbre involving im- mense interests, the grant being almost the only one affecting the gold region, and its early confirmation settling several important legal questions. The Pano- cha Grande claim of Vicente Gomez assumed great importance on account of the New Idria quicksilver mines, which the grant assumed to cover; and in its development it became the famous McGarrahan case, the basis of Harte's Story of a Mine, a case apparently destined to eternal life before congress and the courts, though by the land tribunals the claim was rejected as fraudulent. The grant by which the Frenchman Limantour attempted to grasp the most valuable parts. of San Francisco was a fraudulently antedated docu- ment supported by other forgeries and by perjury of many witnesses. The confirmation of the claim by the commissioners naturally caused intense excitement in the city, and large sums of money were extorted from frightened property holders; but happily the fraud was brought to light before the district court, the judge pronouncing the case in several respects "with- out parallel in the judicial history of the country." The Peralta grant, covering the sites of Berkeley, Oak- land, and Alameda, though important on account of the great value of the lands, was genuine and valid, giving comparatively little trouble to the land tribu- nals; but an almost endless litigation in the California courts sprang from Peralta's division of the estate among his sons while ignoring the daughters. The Bolton, or Santillan, claim to a large tract at San Francisco mission, resting on a pretended grant to the parish priest in 1846, caused almost as much excitement as that of Limantour; and not even in 1886 had the eastern association owning the claim abandoned all idea of obtaining from congress some compensation for their alleged losses and wrongs.

HIST. CAL., VOL. VI. 36

562

MEXICAN LAND TITLES.

Sutter's claim at New Helvetia rested on a valid grant that was finally confirmed; but in this case many complications arose from the discovery of gold in this region, from the building of Sacramento city on the land, from a series of blunders in the original survey, and from Sutter's peculiar methods of selling land almost anywhere with but slight reference to his boundary lines. Vallejo's claim for Soscol, on which stood the towns of Benicia and Vallejo, was finally rejected as resting on a sale, and not on a colonization grant; but the injustice was to some extent remedied, so far as the settlers were concerned, by a subsequent act of congress.

The mission lands demand separate notice in this connection, though in a strict or legal sense there never were any such lands. Neither to the neophyte communities, to the friars, nor to the church were the so-called mission lands-that is, the lands adjoining the missions, and utilized at one time or another by those establishments-ever granted by the Spanish or Mexican government. The system has been fully ex- plained in the mission annals of preceding volumes. The friars were simply hired agents of the government, never had any property rights whatever, and never claimed any, except as guardians of the Indians. The neophytes had simply the right, on becoming chris- tianized and civilized, to obtain land grants like other citizens; a few of them did so, and the government merely withheld from colonization such constantly diminishing portions of the public lands as were pros- pectively needed for the neophytes; the governors granted lands not thus needed from time to time to private ownership, their right to do so never being questioned under Mexican rule, and being eventually admitted by the United States; and in this matter the friars had no other right-though they were always consulted, sometimes consenting, sometimes making objections-than that of protesting before

563

MISSION ESTATES.

the supreme government that in a particular grant the neophytes' prospective needs had been ignored. Finally, the church had an equitable and always rec- ognized right, becoming in a large sense legal with the progress of secularization, to the possession of the church buildings, priests' houses, cemeteries, and cer- tain small tracts at each establishment utilized by the priests as gardens and orchards for their own support. In 1845-6, the governor leased, and finally granted or sold, to private parties the remnants of the mission estates-that is, all the public lands adjoining the missions not previously disposed of-the purchasers being required to pay the mission debts, to support the parish priest, to pay the expenses of public wor- ship, to recognize the title to church property proper, and not to disturb the ex-neophytes in the possession of the lots actually cultivated by them. 25

During the military rule of 1846-8, on account of the conflicting claims of lessees, purchasers, and priests, the mission estates as related elsewhere gave the authorities somewhat more trouble than other classes of landed property; but attention was directed only to the protection of the estates from damage and to the maintenance of individual rights in statu quo, the question of title being left to later tribunals. After California became a state, the legislature in 1850 at- tempted without results some steps of investigation ; and for the rest the courts continued to protect all rights pending a final decision.26 Finally the mission claims were presented to the commission in three classes. First were the claims under Pico's sales of 1845-6, seventeen in number. These sales differed in several respects from the colonization grants which

25 For full details of Gov. Pico's leases and sales of the mission estates in '45-6, with information on the final disposition of each title, see iv. 546-53; v. 558-65; and also local annals of the different missions '45-8, in the same volumes. Hist. Cal., this series.

26 Cal., Journals, '50, through index p. 1302, 1342. The plan proposed was to pay Halleck and Hartnell $15,000 for a detailed report on mission titles. In Nolili vs Redman, 6 Cal. 325, the priest at Sta Clara failed to establish the claim of the church to the Sta Clara orchard.

564

MEXICAN LAND TITLES.

the governor had an undoubted right to make; there was the Montesdeoca order of November 1845, re- ceived in April 1846, suspending all proceedings in the sale of mission estates; the Tornel order of March giving Pico and Castro 'ample powers' to defend the country, if a valid revocation of the preceding, was probably not received before most or all of the sales had been made; and moreover, the sales themselves were irregular in not having been made by auction as provided, the claimants offered little proof of having complied with conditions, archive evidence was for the most part lacking, and the belief was general that Pico had granted the estates to English friends after July 7, 1846. The lower tribunals, however, virtually admitted the governor's right to make the sales, though they rejected seven of the claims-notably the Santillan claim to San Francisco-for various frauds and irregularities, or because the claim was for church property; and when finally in 1863 the su- preme court decided in the cases of San Gabriel and San Luis Rey that the governor had no right at any time to sell the mission estates, eight of the claims had been finally confirmed.27

Second was the archbishop's claim, in behalf of the church, for one square league at each mission, with additional lands at San Miguel, Santa Clara, and Santa Inés, to be held in trust for the Indians. For the 21 leagues no grant was alleged, and for the addi- tional lands reliance was placed only in certain orders of 1844 for the distribution of lots among the neophytes as a part of the process of secularization. As there had been no grants or even occupation, there was no valid claim before the courts, which could only protect rights, not distribute lands to any class, however

37 Land com. nos 81, 110, 175, 224, 295, 348, 378, 410 and 808, 476, 479, 526, 538, 621-2, 697 and 574, 742 and 754, 752. Those confirmed were S. Diego, S. Juan Cap., S. Fernando, S. Buenaventura, Purísima, S. Luis Obispo, Soledad, S. Juan Bautista; rejected S. Luis Rey, S. Gabriel, Sta Bárbara, Sta Inés, S. Miguel, S. José, Sta Clara, S. Francisco, and S. Rafael; while S. Carlos, S. Antonio, Sta Cruz, and Solano did not come before the l. c. in this form.

565

PUEBLO LANDS.

deserving, except by act of congress. Therefore these claims were rejected by the board and discontinued.28 It is unfortunate that the Mexican government, or that of the United States, did not make provision for the Indians by granting lands to be held in trust by ecclesiastical or other authorities, though of course the courts could afford no relief. Third and finally was the claim of the archbishop for the church property at each mission, including a few acres of garden, orchard, and vineyard; also the Santa Inés college rancho, and La Laguna in San Luis Obispo, which rested on formal grants .?? This claim, being a perfectly valid and equitable one, was confirmed by the board in 1855, appeal being dismissed in the district courts in 1857-8.

Under Spanish and Mexican rule a pueblo, or legally organized settlement, whatever its origin, was entitled to a tract of land for the various uses of the community and its members. The land was rarely, if ever, formally granted by the government at the founding, but the pueblo might at any time take steps to have the bounds fixed by a survey, which amounted to a grant, though even this in California was often long delayed, or sometimes omitted altogether. It seems to have been generally understood that by law and usage a pueblo was entitled to at least four leagues of land, though there was a question-not yet entirely cleared up, I think-whether the area was four square leagues or four leagues square. Pueblo lots were sold or distributed to residents by the municipal authorities instead of being granted like ranchos by the governor. The system is sufficiently explained elsewhere, espe- cially in connection with the local history of the dif- ferent towns.30

The act of 1851 provided that the existence of a

28 No. 663 of the 1. c. The decision of the board in a newspaper clipping I find in Hayes' Mess. B., 404.

29 No. 609 of the l. c.

30 See also references in note 1 of this chap.

56G

MEXICAN LAND TITLES.

town on July 7, 1846, should be regarded as prima facie evidence of a land grant, and thus the claim should be presented in the name of the town, and not of the lot-owners. Of course the claims of such owners to lots bought and occupied before 1846 were sure to be confirmed; but the sale of lots by the municipal authorities had continued since 1846, and on these lands as on others not sold adjoining the larger towns squatters had settled, acquiring a valid title if the lands belonged to the United States; hence the chief importance of determining the validity, extent, and nature of the general pueblo titles. The general conclusions reached in the United States tribunals were that each town was entitled to the lands granted or assigned by survey, or to four square leagues if no area or bounds had been fixed; that the United States government was bound to acknowledge and perfect the equitable and inchoate title of a pueblo as of an individual; that sales by the alcaldes since 1846 were valid; but that the pueblo title was not of such a nature as to permit sale under execution for claims against the town, the lands being held in trust for certain uses; and that the authority of the alcalde was not so absolute as to invalidate grants regularly made by the governor within pueblo limits. Most of these claims were decided by the board and courts before 1860; about 1870 the surveys in their main features had been made and confirmed; but not till 1884 was the last patent issued.

The modern towns of Sonora and Sacramento pre- sented claims for land, which of course, resting on nothing, were promptly rejected by the board, and discontinued.31 The Indian pueblos of the south, Las Flores, San Dieguito, and San Pascual, presented no claims, their lands being included in private ranchos, though in the case of Las Flores, and possibly of the others, the owners had acquired the Indian title.32 Of

31 Nos 639, 792 of the l. c.

32 Nos 345, 441, 700, of the l. c. The validity of Pico's purchase of Las

567

PUEBLO LANDS.

the pueblos that had been more or less fully established on the sites of the secularized missions, Sonoma's claim for four leagues was confirmed and patented in 1880; that of San Luis Obispo was rejected; 33 while those of San Juan de Arguello and San Juan de Castro, the latter of which might perhaps have been success- ful, were never presented. Of the three original pueblos of Spanish times Branciforte presented no claim;34 to Los Angeles claiming sixteen leagues was confirmed a tract of about four, patented in 1875; while to San Jose, though the commission restricted its claim to four leagues, the final confirmation and survey of 1866 were for a tract within bounds fixed in 1838 or earlier, eleven and a half leagues long by two and a half wide, which, several ranchos being excepted, gave the pueblo less than two leagues in five tracts.35 Of the four presidios on the sites of which pueblos were duly organized in 1835 or earlier, San Diego ob- tained confirmation for the tract covered by Captain Fitch's official map of 1845, quantity not specified ; and after the usual protests and controversy the sur- vey seems to have been approved in its main features in 1870, a patent being issued in 1874.36 Santa Bar- bara's claim was confirmed in 1861 and patented in 1872 for an area within certain bounds amounting to four leagues. The pueblo lands of Monterey had been definitely assigned by a survey of 1830, and were confirmed to the town by the board in 1856, ap-

Flores with approval of local authorities is affirmed in 5 Wallace, 536, the pueblo title being virtually confirmed.

33 Nos 237, 738, of the l. c.

34 The alcalde at Sta Cruz sold lands in '49-50; but in '60-8 the title to these lands was held to have been forfeited by the failure of the pueblo, if there was one, to present the claim. Stevenson vs Bennett, 35 Cal. 424. Respecting the Los Angeles lands I have found nothing beyond the brief record in the Hoffman list, no. 422, and the record of patent.

35 Nos 286-7 of the l. c. There were many complications in this case, which is presented in detail most satisfactorily by Hall in his Hist. S. José, 333-49, with map. In '80 no final patent had been given.

36 No. 589. Scraps and pamphlets in Hayes' Legal Hist. S. Diego, i. 48 et seq., are the best source of information that I have found. The Sta B. claim was no. 543; see also Sta B. County Hist., 199. The claim for 82 1. was rej. by the l. c. in '54, but conf. with reduced limits by the d. c. in '61. The Mont. cl. is no. 714.

568

MEXICAN LAND TITLES.

peal being dismissed in 1858, though in 1880 no pat- ent had been obtained. The fourth presidial pueblo demands more extended notice.

The pueblo land question at San Francisco, where the great legal battle was fought, is far too compli- cated for any but the most summary treatment here. As a matter of fact, San Francisco was a pueblo in 1835-46 exactly like those of San Diego and Mon- terey; but my views on this subject have been ex- pressed elsewhere.37 Able lawyers, however, denied the existence of any pueblo, or if it existed, its title to any lands not distributed before 1846, adopting some very ingenious theories to explain the existence of an ayuntamiento. Meanwhile General Kearny in 1847 probably without any power to do so, had granted or relinquished to the town the claim of the United States, not only to the pueblo lots, but to the beach and water lots not belonging to the town under Mexi- can law. The alcaldes and ayuntamiento continued to sell lots of both kinds in large numbers, unwisely removing the old restrictions, and granting many lots to one purchaser; there were many irregularities and even frauds committed in connection with the alcalde sales ; and the Colton grants were made by a justice of the peace acting by authority of the prefect in opposition to the town council. While official reports, notably those of Peachy and Wheeler,38 supported the pueblo title, and while the legislature in 1851 ceded to the city the water lots, yet so high an authority as the supreme court of California in its decisions of 1850-1 held the pueblo title invalid, reversing that opinion in decisions of 1853-7.39 Meanwhile in 1851-2, Peter Smith, obtaining judgments against the city,

37 See vol. iii., p. 702-8, for the pueblo organization. See also local annals of S. F. in this and earlier vols.

38 Peachy's report of '50 to council in S. F. Minutes of Assembly, 154-9; Wheeler's Land Titles in S. F., a report of '51 pub. in '52.

39 Woodworth vs Fulton, 1 Cal. 295, and several later cases; Ist reversed in Cohas vs Raisin, 3 Id. 443, also in other cases, including Welch v& Sulüvan, 8 Id. 165, in which Nathaniel Bennett-the judge who had made the decisions of '50-as attorney presented an elaborate brief against the pueblo title.

559

POSITION OF SAN FRANCISCO.

proceeded to have large portions of the town property sold by the sheriff, for nominal prices, in satisfaction of his debt.40 When we consider also the pending Liman- tour and Santillan claims for the most valuable parts of the peninsula, it is not strange that the people be- came confused and excited in their ideas of land tenure, or that they came to believe one title to be as good as another, possession being best of all.

The San Francisco claim was presented to the land commission in 1852, and by that board confirmed in 1854, but only for the region north of the Vallejo line of 1834, regarded erroneously as the pueblo boun- dary.41 In 1855 the city by the Van Ness ordinance granted its title to lands within its limits under the incorporation of 1851 to the persons holding bona fide possession at that time.42 In 1858-9, as elsewhere recorded, the Limantour and Santillan claims were rejected, other rancho claims on the peninsula having meantime been finally confirmed or rejected; and in 1860 the great test case of Hart versus Burnett was decided by the California supreme court in favor of the pueblo title.43 The claim of San Francisco, having

40 See a good account of the Smith affair in Annals of S. F., 370-7.

41 This line extended from 5th and Brannan sts to Lone Mountain and thence to the ocean. The Zamorano doc. by which the gov. accepted this as the pueblo line was proved to be spurious. iii. 703-4. See also Dwinelle, add. 116-19.

42 Ratified by the legislature in '58 and in '64 by an act of congress ceding the U. S. title for purposes of the ordinance.

43 15 Cal. 530; also separate pamphlet with comments by H. W. Halleck, pub. at S. F. '60. Edmund Randolph's argument against the pueblo title was also published. Wm C. Jones' Pueblo Question Solved was a pamphlet on the same side, largely in reply to Halleck's notes. Both R. and J. argued against the existence of a pueblo at S. F., and they put a weak cause in its best light. This decision included the validity of the governor's grants within pueblo limits, and also the invalidity of sales under execution for debts against the city (conf. by U. S. s. c. in '66. 5 Wallace, 326). After this decis- ion the title to lots granted by the gov., conf. and patented by the U. S., was attacked on the ground that the 1. c. had no jurisdiction by the act of '51, and the patents were void; but this view was overruled in Leece us Clarke, 18 Cal. 535. Then it was claimed that a gov.'s grant of a pueblo lot gave a perfect title not needing presentation to the l. c. at all; and this point was not decided, the party taking this view being defeated on the ground that in his case the lack of boundaries made the title inchoate 30 Cal. 498. Holders of lots on the gov.'s grants conf. and patented, but within the city limits tried desperately to maintain their claims under the Van Ness ordi- nance, but the s. c. held that the town by that ord. had given-only its own

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

History of California, Volume VI, Part 65

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