USA > California > Contra Costa County > History of Contra Costa County, California, including its geography, geology, topography, climatography and description; together with a record of the Mexican grants also, incidents of pioneer life; and biographical sketches of early and prominent settlers and representative men > Part 31
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* I was told hy Major J. R. Snyder, the gentleman appointed Territorial Surveyor hy Colonel Mason, and who made surveys of a number of grants in the central part of the country, that he had little difficulty in following the calls and ascertaining the hounds of the grants.
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If it were within my province to suggest what would be an equitable disposition of such of the missions as remain the property of the Govern- ment, I should say that the churches with all the church property and ornaments, a portion of the principal building for the residence of the priest, with a piece of land equal to that designated in the original Act of the Mexican Congress for their secularization (to wit, two hundred varas square), with another piece for a cemetery, should be granted to the respective Catholic parishes for the uses specified, and the remainder of the buildings with portions of land attached, for schools and municipal or county pur- poses, and for the residence of the bishop; the same allotment at the mission of Santa Barbara that was made in the last proclamation of Gov- ernor Pico. The churches, certainly ought not to be appropriated to any other use, and less than the inhabitants have always considered and enjoyed as their right.
To conclude the inquiry in the last portion of your letter of instruc- tions, namely, concerning " large grants" other than the supposed ecclesi- astical grants.
I did not find in the archives of California any record of large grants in the sense I suppose the term to be here used. There are a number of grants to the full extent of the privilege accorded by law to individual con- cessions and of the authority of the local government to make independent of the Central Government-to wit, of eleven sitios, or leagues square.
There are understood in the country, however, to be large claims reputed to be founded on grants direct from the Mexican Government-one held by Captain Sutter ; another by General Vallejo. The archives (as far as I could discover) only show that Captain Sutter received July 18, 1841, from Governor Alvarado, the usual grant of eleven sitios on the Sacramento river, and this is all I ascertained. The archives likewise show that Gen- eral Vallejo received from Governor Micheltorena, October 22, 1823, a grant of ten sitios called " Petaluma," in the district of Sonoma ; and I was in- formed by a respectable gentleman in California, that General Vallejo had likewise a grant from the Mexican Government, given for valuable consid- eration, of a large tract known by the name of " Suscol," and including the site of the present town of Benicia, founded by Messrs. Vallejo and Semple, on the Straits of Carquinez. It is also reputed that the same gentleman has extensive claims in the valley of Sonoma and on Suisun bay. It ap- pears from documents which General Vallejo caused to be published in the newspapers of California in 1847, that he was deputed in the year 1835, by General Figueroa, to found a settlement in the valley of Sonoma, " with the object of arresting the progress of the Russian settlements of Bodega and Ross." General Vallejo was at that time (1835), military commander of the northern frontier. He afterwards (in 1836), by virtue of a revolu- tion which occurred in that year in California, became military commandant
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of the department-the civil and military government being by the same act divided-to which office he was confirmed in 1838 by the Supreme Government.
The following extract from Governor Figueroa's instructions to him will show the extent of General Vallejo's powers as agent for colonizing the north :
" You are empowered to solicit families in all the territory and other States of the Mexican Republic, in order to colonize the northern frontiers, granting lands to all persons who may wish to establish themselves there, and those grants shall be confirmed to them by the Territorial Government, whenever the grantees shall apply therefor ; the title which they obtain from you serving them in the meantime as a sufficient guarantee, as you are the only individual authorized by the superior authority to concede lands in the frontier under your charge. The Supreme Government of the terri- tory is convinced that you are the only officer to whom so great an enter- prise can be entrusted, and, in order that it may be accomplished in a certain manner, it is willing to defray the necessary expenses to that end."
An official letter to General Vallejo from the Department of War and Marine, dated Mexico, August 5, 1839, expresses approbation of what had thitherto been done in establishing the colony, and the desire that the settle- ments should continue to increase " until they should be so strong as to be respected not only by the Indian tribes, but also by the establishments of the foreigners who should attempt to invade that valuable region."
I did not find any trace of these documents, or of anything concerning General Vallejo's appointment or operations, in the Government archives. But there is no reason to doubt the genuineness of the papers. They do not, however, convey any title to lands beyond authority to grant during the time his appointment continued to actual colonizers. The appointment of General Vallejo seems to have been made by direction of the Supreme (National) Government. I had no means of ascertaining how long the appointment lasted, nor to what extent its powers were used ; but infer from Vallejo himself taking a grant of his rancho of Petaluma, in 1843, that his own authority in that respect had then ceased. As there are other grants also of considerable extent in the same neighborhood embraced in the Gov- ernment archives, I apprehend that most, if not all of the grants made by him, exclusive of what may be embraced in the town privileges of Sonoma (and which will be noticed hereafter), were confirmed or regranted to the parties by the departmental government. In this view, however, I may be mistaken. And I desire to be distinctly understood as not intending to throw any doubt or discredit on the titles or claims of either of the gentle- men I have mentioned. I had no opportunity of inspecting any grants they may possess, beyond what I have stated, and I imagine their lands can only be separated from the domain by the process universally requisite-the registration of outstanding grants and their survey.
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III. GRANTS OF ISLANDS, KEYS AND PROMONTORIES, POINTS OF IMPORTANCE TO THE PUBLIC, ETC.
The only points of special public importance which I learned were granted prior to the cessation of the former government, are the site of the old fort of San Joaquin, near the outlet of the Bay of San Francisco, and Alcatraz (or Bird) Island, commanding its entrance, the Key of the Golden Gate. The date of the first named grant is June 25, 1846; it was made to Benito Diaz, and by him transferred to Mr. T. O. Larkin of Monterey. I under- stand a portion of the land embraced in the grant is in occupation of the United States troops, or has property of the United States upon it, and a part in possession of Mr. Larkin.
Alcatraz Island was granted in June, 1846, to Mr. Francis P. Temple, of Los Angeles. The indispensableness of this point to the Government, both for the purpose of fortification, and as a proper position for a light-house, induced Lieut-Col. Fremont, when Governor of California, to contract for the purchase of it on behalf of the United States. The Government, it is believed, has never confirmed the purchase, nor paid the consideration. This island is a solid rock, of about a half-a-mile in circumference, rising out of the sea just in front of the inner extremity of the throat or narrows which forms the entrance to the bay, and perfectly commands both front and sides. It is also in the line of the sailing directions for entering the bay,* and consequently a light-house upon it is indispensable.
The local government had special authority and instructions from the general government, under date of July 12, 1838, to grant and distribute lands in " the desert islands adjacent to that department."
Whether the grants " purport to be inchoate or perfect ?" The grants made in that department under the Mexican law, all, I believe, purport to be perfect, except in the respect of requiring "confirmation by the depart- mental assembly." The difficulties of determining what grants have not received this confirmation have been above explained.
IV.
IF THERE BE ANY ALLEGED GRANTS OF LANDS COVERING A PORTION OF THE GOLD MINES, AND WHETHER IN ALL GRANTS IN GENERAL (UNDER THE MEXICAN GOVERNMENT,) OR IN CALIFORNIA IN PARTICULAR, THERE ARE NOT CONDITIONS AND LIMITATIONS, AND WHETHER THERE IS NOT A RESERVATION OF MINES OF GOLD AND SILVER, AND A SIMILAR RESERVATION AS TO QUICKSILVER AND OTHER MINERALS ?
There is but one grant that I could learn of which covers any portion of the gold mines. Previous to the occupation of the country by the Ameri- cans, the parts now known as The Gold region, were infested with wild
* Beechy's Narrative of a voyage to the Pacific; London, 1881; appendix p. 562.
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Indians, and no attempts made to settle there. The grant that I refer to was made by Governor Micheltorena, to Juan B. Alvarado, in February, 1844, and is called the Mariposas, being situated on the Mariposa creek, and between the Sierra Nevadas and the river Joaquin, and comprises ten sitios, or leagues square, conceded, as the grant expresses, " in consideration of the public services " of the grantee. It was purchased from the grantee (Alvarado) in February, 1847, by Thomas O. Larkin, Esq., for Mr. J. C. Fremont, and is now owned by that gentleman.
The only " conditions or limitations" contained in the grants in Cali- fornia which could effect the validity of the title, are, that in the grants made by some of the governors, a period of time (one year) was fixed, within which the grantees should commence improvements on the grant. In case of failure, however, the grant was not thereby void, but open to denounce- ment by other persons. This limitation was not contained in such of the grants made in the time of Micheltorena, as I have examined, nor is it pre- scribed by law. No doubt, however, the condition was fulfilled in most instances where it was inserted, unless in a few cases where the lands con- ceded were in parts of the country infested by the wild Indians, and its ful- filment consequently impossible. In fact, as far as I understood, it was more customary to occupy the land in anticipation of the grant. The grants were generally for actual (immediate) occupation and use.
I cannot find in the Mexican laws or regulations for colonization, or the granting of lands, anything that looks to a reservation of the mines of gold or silver, quicksilver or other metal or mineral; and there is not any such thing expressed in any of the many grants that came under my inspection. I inquired and examined also, while in Mexico, to this point, and could not learn that such reservations were the practice, either in general or in Cali- fornia in particular.
V.
IN ALL LARGE GRANTS, OR GRANTS OF IMPORTANT OR VALUABLE SITES, OR OF MINES, WHETHER OR NOT THEY WERE SURVEYED AND OCCU- PIED UNDER THE GOVERNMENT OF SPAIN OR MEXICO, AND WHEN PUB- LICITY WAS FIRST GIVEN TO SUCH GRANTS ?
The first part of this inquiry is already answered, in the statement that, as far as I am aware, there were never any surveys made in the country during its occupation by either of the former governments. Most of the grants, however, were occupied before, or shortly after they were made, and all, as far as I am informed, except where the hostile Indian occupation prevented. In respect of the grants to which I have made any reference, I did not learn that there had been any delay in giving publicity to them.
Having met, sir, as far as in my power, the several inquiries set forth in the letter of instructions you were pleased to honor me with, my attention was turned, as far as they were not already answered, to the more detailed
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points of examination furnished me, with your approbation, by the Con- missioner of Public Lands. The very minute information contemplated by those instructions, it would have been impossible, as you justly anticipated, to obtain in the brief time proposed for my absence, even had it been acces- sible, in systematic archives and records. My examination, moreover, was sufficient to show me that such minute and exact information on many of the various heads proposed, is not attainable at all ; and that the only mode of approximating it must be through such measures as will produce a general registration of written titles, and verbal proof of possession where written titles are wanting, followed or accompanied by a general survey. By such means only can an approximation be made to the minute information sought of the character, extent, position and date, particularly of the old grants in California.
The first branch of the inquiries proposed by the instructions from the Land Office, relate to " grants or claims derived from the Government of Spain."
The chief local authority to grant lands in the province of California was, ex officio, the military commandant, who was likewise Governor of the province ; and the principal recipients of grants, officers and soldiers as they retired from service. The grants to the soldiers were principally of lots in and about the presidios (military posts) or the pueblos (villages) ; to the officers, farms and grazing lands in addition to such lots.
There were, also, at different times, settlers brought from Sonora and other provinces of New Spain (single men and families), and grants made to them ; usually of village lots, and to the principal men ranchos in addition. The first settlement at San Francisco was thus made; that is, settlers accom- panied the expedition thither, and combined with the military post. The pueblos of San Jose and Los Angeles were thus formed. The Governor made grants to the retired officers under the general colonization laws of Spain, but, as in all the remote provinces, much at his own discretion. He had likewise special authority to encourage the population of the country by making grants of farining lots to soldiers who should marry the native bred women at the missions. The captains of the presidios were likewise authorized to make grants within the distance of two leagues, measuring to the cardinal points from their respective posts. Hence, the presidios became in fact villages. The Viceroy of New Spain had also, of course, authority to make grants in California, and sometimes exercised it. It was pursu- ant to his order that presidios, missions and pueblos were severally estab- lished, and the places for them indicated by the local authority. Under all these authorities, grants were made; strictness of written law required that they should have been made by exact measurements, with written titles, and a record of them kept. In the rude and uncultivated state of the country that then existed, and lands possessing so little value, these formal-
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ities were to a great extent disregarded, and if not then altogether disre- garded, the evidence of their observance in many cases was lost. It is certain that the measurements even of the grants of village lots were very unexact and imperfect ; and of larger tracts, such as were granted to the principal men, no measurement at all attempted, and even the quantity not always expressed, the sole description often being by a name descriptive, in fact or by repute, of the place granted. The law of custom, with the acqui- escence of the highest authorities, overcame in these respects the written law. Written permits and grants were no doubt usually given, but if any systematic records or memoranda of them were kept, they have now disap- peared, or I was not able to meet with them. In some cases, but not in all, the originals no doubt still exist in the possession of the descendants of the grantees ; indeed, I have been assured there are many old written titles in the country, of which the archives do not contain any trace. But in other cases, no doubt, the titles rested originally only on verbal permits. It was very customary in the Spanish colonies for the principal neighborhood authorities to give permission to occupy and cultivate lands, with the understanding that the party interested would afterward, at a convenient occasion, obtain his grant from the functionary above. Under these circum- stances, the grant was seldom refused, but the application for it was very often neglected ; the title by permission being entirely good for the purposes of occupation and use, and never questioned by the neighbors. All these titles, whatever their original character, have been respected during the twenty-six or twenty-seven years of Mexican and local government. And whether evidenced now or ever by any written title, they constitute as meri- torious and just claims as property is held by in any part of the world. They were, in the first place, the meager rewards for expatriation and arduous and hazardous public service in a remote and savage country. They are now the inheritance of the descendants of the first settlers of the country, and who redeemed it from (alinost the lowest stage of) barbarism. Abstractly considered, there cannot be any higher title to the soil.
Many of the holders of old grants have taken the precaution to have them renewed, with a designation of boundary and quantity, under the forms of the Mexican law; and of these the proper records exist in the archives. To what extent old titles have been thus renewed, could not be ascertained, for the reason that there is no record of the old titles by which to make the comparison.
The principal difficulty that must attend the separation of the old grants from the public lands, or rather, to ascertain what is public domain and what private property, in the parts where those old grants are situate, is in the loose designation of their limits and extent. The only way that presents itself of avoiding this difficulty, and of doing justice both to the claimant and the government, would seem to be in receiving with respect to the old
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grants, verbal testimony of occupation and of commonly reputed boundaries, and thereby, with due consideration of the laws and principles on which the grants were made, governing the surveys.
The military commandant or governor had authority, by virtue of his office, to make grants. He had, also, especial authority and direction to do so, in a letter of instructions from the Viceroy, August 17, 1773, and entitled "Instructions to be observed by the commandant appointed to the new establishments of San Diego and Monterey." These instructions authorized (as already noticed) the allotment of lands to Indians, either in community or individually ; but it is to be understood only of Indians who should be in charge of the missions, and of the parcels of land within the mission settlements. Article thirteen gave the commandant " equal authority, like- wise, to distribute lands to other settlers, according to their merit and comformably to the compilation of laws concerning new conquests and settlements." That is, according to the compilation of the " Laws of the Indias," which we know make certain provisions of the most liberal character for the founding and encouragement of new populations.
Subsequently, without abrogating the general colonial laws, a special Regulation was adopted, with the royal assent, for the government of the Californias, and making special provision for the settlement of that prov- ince, and the encouragement of the colonizers. This regulation was drawn in Monterey, by Governor Don Felipe Neve, in 1779, and confirmed by a Royal cedula of October 14, 1781. Its character and objects are shown in its title, namely " Rules and directions for the Presidios of the Peninsula of California, erection of new Missions, and encouragement of the Population, and extension of the establishments of Monterey." The first thirteen articles relate to the presidios and military. Title fourteen relates to the " Political Govern- ment and directions for Peopling." After providing liberal bonuses to new settlers in respect of money, cattle, and exemptions from various duties and burthens, this Regulation prescribes : That the solares (house lots) which shall be granted to the new settlers, shall be designated by the Governor in the places, and with the extent that the tract chosen for the new settlement will allow, and in such manner that they shall form a square, with streets conformably to the laws of the kingdom; and by the same rule shall be designated common lands for the pueblos, with pasturage and fields for municipal purposes (propios). That each suerte (out-lot), both of irrigable and unirrigable land, shall be two hundred varas square; and of these suertes, four (two watered and two dry) shall be given with the solar, or house lot, in the name of the King, to each settler.
These rules relate to the formation of villages and farming settlements, and are exclusive of the extensive ranchos-farms and graziug lands- allotted to persons of larger claims or means, sometimes direct from the Viceroy, usually by the local Governor.
J. M. Bradley
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The acts of the Spanish Cortes, in 1813, heretofore quoted, may also be referred to as a part of the authority under which grants might be made in California during the continuance of the Spanish Government and prior to the colonization laws of Mexico, and afterwards, indeed, as far as not super- ceded by those laws.
The second point of inquiry in the instructions furnished me from the Land Office, relating to grants made under the Mexican Government, is already met in most respects, as far as was in my power to meet it, in the early part of this report. The " authority of the granting officers, and their powers for alienating the public domain," were derived from appointment by the Central Government, and from the general colonization laws and regulations of the Republic. There is little room for discrimination between such as are perfect titles and such as are inceptive and inchoate. A grant by the territorial or (departmental) governors within the extent of eleven sitios constituted a valid title, and with the approbation of the Depart- mental Assembly, a perfect one. After the Governor's concession, however, it could not with propriety be termed merely inceptive, for, in fact, it was complete until the Legislature should refuse its approbation, and then it would be the duty of the Governor to appeal for the claimant to the Supreme Government. I am not aware that a case of this kind arose. The difficulties, already explained, of ascertaining to what grants the legislative approbation was accorded, and from what it was withheld, the impossibility, in fact, of ascertaining in many cases, coupled with the fact that that approbation was so seldom refused, and that the party had still an appeal in case of refusal, would seem to render that provision of the law of those grants nugatory as a test of their merits.
The third inquiry touching "grants made about the time of the revolu- tionary movements in California, say in the months of June and July, 1846," is chiefly answered in what is said concerning the actual condition of the missions, and the grants of Fort Joaquin, at the mouth, and Alcatraz Island, inside the entrance of the Bay of San Francisco. In addition to these, the large island of San Clemente, I understood, was granted about that time, say in May, 1846. I found nothing in the archives concerning it. I do not think there were other grants to attract particular attention, except the proposed great Macnamara grant or contract, of which the principal papers are on file in the State Department, and have been printed in the Con- gressional Documents.
In the second branch of the last mentioned inquiry, namely, concerning any "grants made subsequent to the war," I suppose the intent is, grants, if any, made after the reduction of the country by the arms of the United States. There are, of course, no Mexican grants by the Mexican authorities which purport to have been issued subsequent to that time. The inquiry must relate, therefore, either to supposed simulated grants, by persons
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formerly in authority there, or to whatever may have been done, in respect of the domain, by or under the American authorities. It is believed in the country that there are some simulated grants in existence ; that is, some papers purporting to be grants which have been issued since the cessation of the Mexican Government, by persons who formerly, at different times, had the faculty of making grants in that country. It would be impossible, how- ever, to make a list of them, with the particulars enumerated in the instruc- tions ; for, if there be any such, they would, of course, not be submitted for public inspection, or in any way seek the light. But I believe it would not be difficult for a person skilled in the grants in that country, and acquainted with the archives and the facts to be gathered from them, to detect any simulated paper that might be thus issued after the person issuing it had ceased from his office. The test, however, would necessarily have to be applied to each case as it arose. No general rule, I believe, can be laid down.
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