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 32
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Recurring, then, to the other point which I suppose the inquiry to re- late to. The most considerable act, affecting the domain, had subsequent to the accession of the American authorities in California, was a " decree " made by General Kearny, as Governor, under date March 10, 1847, as follows :
" I, Brigadier-General S. W. Kearny, Governor of California, by virtue of authority in me vested by the President of the United States of Amer- ica, do hereby grant, convey and release unto the town of San Francisco, the people, or corporate authorities thereof, all the right, title and interest of the Government of the United States, and of the Territory of California, in and to the beach and water lots on the east front of said town of San Francisco, included between the points known as Rincon and Fort Mont- gomery, excepting such lots as may be selected for the use of the United States Government by the senior officers of the army and navy now there ; provided the said ground hereby ceded shall be divided into lots, and sold by public auction to the highest bidder, after three months' notice previ- ously given ; the proceeds of said sale to be for the benefit of the town of San Francisco."
Pursuant to the terms of this paper, what are termed " government reservations " were made, both within and outside the limits specified, and the remainder of the lots designated have been since in great part sold by the town of San Francisco. These lots extend into the shallow water along the beach of San Francisco, and are very suitable and requisite for the business purposes of that growing city. The number of four hundred and forty-four of them were sold in the Summer ensuing the " decree," and in December last, I have learned since my return, the remainder, or a large portion of them, were disposed of by the corporation. But little public use has been made of what are denominated the "government reservations."
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Portions of them are reputed to be covered by old grants ; portions have been settled on and occupied by way of pre-emption, and other portions, particularly " Rincon Point," have been rented out, as I am informed, to individuals, by the late military government.
Under the above decree of General Kearny, and the consequent acts of the authorities of San Francisco, such multiplied, diversified and important private interests have arisen, that, at this late day, no good, but immense mischief would result from disturbing them. The city has derived a large amount of revenue from the sale of the lots ; the lots have been re-sold and transferred in every variety of way, and passed through many hands, and on many of them costly and permanent improvements have been made ; improvements required by the business and wants of the community, and which ought to give the makers of them an equitable interest in the land, even without the faith of the Government implied by leaving the act of its agent so long unquestioned. An Act of Congress, relinquishing thus in the lawful mode the interest of the United States in those beach and water lots, would seem to be only an act of justice to the city and to lot-holders, and to be necessary to give that validity and confidence that ought to at- tach to property of such great value and commercial importance.
In regard to the "government reservations," so called where they may be in private hands, whether under a former grant, or by occupancy and improvement, the same equity would seem to call for at least a pre-emption right to be allowed the holders, except for such small parts as may be actu- ally required for public uses. In regard to the places known as "Clark's Point," and "Rincon Point," which are outside of the land embraced in General Kearny's decree, and portions of which it is understood have been put in the hands of rentees ; perhaps the most equitable use that could be made of them (except, as before, the parts needed for public uses), would be to relinquish them to the city, to be sold as the beach and water lots have been ; with due regard, at the same time, to rights accruing from valuable improvements that may have been made upon them, but repress- ing a monopoly of property so extensive and valuable, and so necessary to the improvement, business and growth of the city.
Other operations in lands which had not been reduced to private prop- erty at the time of the cessation of the former government have taken place in and about different towns and villages, by the alcaldes and other municipal authorities continuing to make grants of lots and out-lots, more or less according to the mode of the former government. This, I under- stand, has been done, under the supposition of a right to the lands granted, existing in the respective towns and corporations. Transactions of this nature have been to a very large extent at San Francisco; several hundred in-lots of fifty varas square, and out-lots of one hundred varas square, have been thus disposed of by the successive alcaldes of the place
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since the occupation of it by the American forces, both those appointed by the naval and military commanders, and those subsequently chosen by the inhabitants.
It is undoubtedly conformable to the Spanish colonial laws, that when villages were to be established, there should be liberal allotments to the first settlers, with commons for general use, and municipal lands (propios) for the support and extension of the place-that is, to be rented, or other- wise transferred, subject to a tax; and that the principal magistrate, in conjunction with the ayuntamiento, or town council, should have the dis- posal of those town liberties, under the restrictions of law, for the benefit of the place, and the same was the practice in California, under the Mexican Government. It is not always so easy to determine within what limits this authority might be exercised ; but in new communities, whether the settlement was founded by an empresario (contractor) or by the govern- ment, the allotments were always on a liberal scale, both for the individuals and the village. A very early law (law 6, tit. 3, lib. 4, Recop. de Indias) fixes " four leagues of limits and land (de termino y territorio) in square or prolonged, according to the nature of the tract," for a settlement of thirty families ; and I suppose this is as small a tract as has usually been set apart for village uscs and liberties, under the Spanish or Mexican Govern- ment in New Spain ; sometimes much more extensive privileges have no doubt been granted. The instructions of 1773 to the commandant of the new posts, authorizes pueblos to be formed, without specifying their limits, which would, of course, bring them under the general law of four leagues.
The Royal Regulation of 1781, for the Californias, directs suitable municipal allotments to be made, "conformable to the law;" and this like- wise must refer to the law specifying four leagues square.
The letter of instructions of 1791, authorizing the captains of presidios to make grants, in the neighborhood of their respective posts, specifies the same quantity, to wit: "the extent of four common leagues, measured from the center of the presidio square, two leagues in each direction, as sufficient for the new pueblos to be formed under the protection of the presidios."
The Mexican laws, as far as I am aware, make no change in this rule ; and the colonization regulations of 1828, provide (Art. 13) that the reunion of many families into a town shall follow in its formation, policy, etc., the rule established by the existing laws for the other towns of the Republic."
From all these, and other acts which might be quoted, it would seem that where no special grant has been made, or limits assigned to a village, the common extent of four leagues would apply to it ; it being understood, however, as the same law expresses, that the allotment should not interfere with the rights of other parties. The presidio settlements, under the order of 1791, were certainly entitled to their four leagues ; the right of making grants within the same only transferred from the presidio captains to the
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municipal authorities who succeeded him, as is conformable to Spanish and Mexican law and custom. This was the case under the Spanish Govern- ment ; and I am not aware that the principle has been changed, though no doubt grants have been made to individuals which infringed on such village limits. The Territorial Deputation of California, however, by an act of August 6, 1834, directed that the ayuntamientos of the pueblos should " make application for common and municipal lands (ejidos y propios) to be assigned them." Wherever it shall appear that this was done, the town, I suppose, could only now claim what was then set apart for it. Where it was omitted or neglected, custom, reputed limits, and the old law, would seem to be a safe rule.
As to the point now under consideration, that of San Francisco, I find that in the acts of the Departmental authorities the settlements in and about the presidio were styled " the pueblo of San Francisco," and the par- ticular place where the village principally was and the city now is, " the point of Yerba Buena." The local authorities, as its alcalde, or justice of the peace, were termed those of the pueblo of San Francisco. Its privi- leges were not, therefore, at any time limited to the point of Yerba Buena. Originally, probably, it had boundaries in common with the mission of Do- lores, which would restrict it in its four leagues ; but after the conversion of the mission into a pueblo, the jurisdiction of the authorities of San Fran- cisco was extended, and special license given to its principal magistrate to grant lots at the mission. San Francisco is situated on a tongue or neck of land lying between the bay and the sea, increasing in breadth in a south- erly direction. A measurement of four leagues south from the presidios would give the city, in the present advanced value of property, a magnifi- cent corporate domain, but not so much as was fairly assignable to the pre- cincts of the presidio under the order of 1791, nor so much as all new pueblos are entitled to under the general laws of the Indias. There are private rights, however, existing within those limits, apart from any grants of the village authorities, which ought to be respected ; some through grants from the former government ; some by location and improvement, a claim, both under our own law and custom and under the Spanish law, en- titled to respect. To avoid the confusion-the destruction-that would grow out of the disturbing of the multiplied and vast interests that have arisen under the acts of the American authorities at San Francisco ; to give the city what she would certainly have been entitled to by the terms of the old law, what she will need for the public improvements and adorn- ments that her future population will require, and what is well due to the enterprise which has founded in so brief a space a great metropolis in that remote region, perhaps no better or juster measure could be suggested than a confirmation of past acts, a release of government claims to the extent of four leagues, measuring south from the presidio, and including all between
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sea and bay, with suitable provision for protecting private rights, whether under old grants or by recent improvements, and reserving such sites as the government uses may require.
By the authorities of the village of San José, there have been still larger operations in the lands belonging, or supposed to belong, to the liberties of that town. The outlands there, as I learned, have been distributed in tracts of three to five hundred acres.
The pueblo of San José was founded November 7, 1777. by order of Felipe de Neve, then military commandant and governor. The first settlers were nine soldiers and five laboring men or farmers, who went thither with cattle, tools, etc., from San Francisco, where had been established the year be- fore, by order of the Viceroy, the presidio and the mission of Dolores. These persons took possession, and made their settlement "in the name of his Majesty, making out the square for the erection of the houses, distributing the solares (house lots) and measuring to each settler a piece of ground for the sowing of a fanega of maize (two hundred varas by four hundred), and for beans and other vegetables .* Subsequently, the Regulation of 1781, allowing to the new settlers each four lots of two hundred varas square, besides their house lots, was no doubt applied to this village. It was de- signed for an agricultural settlement, and, together with the pueblo of the south (Los Angeles), received constantly the favor and encouragement of the government, with the view of having sufficient agricultural produce raised for the supply of the military posts. Both villages are situated in fertile plains, selected for their sites with that object. In a report or in- formation, made by the Governor, Don Pedro Fages, in February, 1791, to his successor, Governor Romeu, the encouragement of the two pueblos is the first topic referred to:
1. " Being (says Governor Fages) one of the objects of greatest considera- tion, the encouragement of the two pueblos of civilized people, which have been established, the superior government has determined to encourage them with all possible aids, domiciliating in them soldiers who retire from the presidios, and by this means enlarging the settlement.
2. " By the superior order of April 27, 1784, it is ordered that the grains and other produce, which the presidios receive from the inhabitants of the two pueblos, shall be paid for in money, or such goods and effects as the inhabitants have need of.
3. " The distribution of lots of land, and house lots, made with all pos- sible requisite formalities, with designation of town liberties, and other lands for the common advantage, as likewise titles of ownership given to the in- habitants, were approved by the Señor Commandante General, the 6th February of the present year of 1784."
* Noticias de Nueva California, hy the Rev. Father Palou ; MSS., Archives of Mexico.
2. Now ican
JAMES GAY.
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There are also records of families being brought at the government ex- pense, from the province of Sonora, specially to people the two pueblos. Both these villages-being thus objects of government favor and encour- agement-claim to have been founded with more extensive privileges than the ordinary village limits ; and I have no doubt, from the information I received, that such was the case.
The village of San Jose had a dispute of boundary as early as the year 1800, with the adjoining mission of Santa Clara, and which was referred the following year to the Government of Mexico. The fact is noted in the index to California papers in the Mexican archives, but I did not find the corresponding record. There is likewise in the book of records marked " 1828," in the archives at Monterey, an outline of the boundaries claimed by the pueblo at that time. But at a later period (in 1834, I believe), there was legislative action upon the subject, in which, as I understand, the boundaries were fully agreed upon. Some documents relating to this settle- ment are in the archives at San José, and also in the territorial archives. My time did not permit me to make a full investigation of the question of those boundaries, nor did I think it necessary, because, at all events, they can only be definitely settled by a survey, the same as private estates. My instructions, however, call for a discrimination between acts done "with legal formalities," and such as are " without legal sanction." It is therefore proper for me to say that I do not know of any law which would authorize the distribution of town property in California in lots measured by hun- dreds of acres ; such distribution, in fact, would seem rather to defeat the ends for which town grants are authorized by the Spanish law. Perhaps an act to authorize the limits of the town to be ascertained by survey, and to leave the question of the validity of those recent large grants within the limits of the same, to be determined between the holders, and the town in its corporate capacity, would be as just and expedient as any other mode.
In and about the town of Monterey, likewise, there were large conces- sions, as I understood, and some including the sites of forts and public places, made by the magistrate appointed there after the accession of the American authority. The limits of this town, also, I think, depend on an act of the territorial legislature, and may be ascertained by an author- ized survey.
The city of Los Angeles is one of the oldest establishments of Cali- fornia, and its prosperity was in the same manner as that of San José, an object of Government interest and encouragement. An Act of the Mexican Congress of May 23, 1835, erected it into a city, and established it as the capital of the territory. The limits which, I understood, are claimed as its town privileges, are quite large, but probably no more than it has enjoyed for sixty years, or ever since its foundation. The grants made by this
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corporation since the cessation of the former government, have been, as far as I learned, quite in conformity with the Spanish law, in tracts such as were always granted for house lots in the village, and vineyards and gardens without, and in no greater number than the increase of population and the municipal wants required.
The only provision that seems to be wanting for the pueblo of Los Angeles is for the survey and definition of its extent, according to its ancient recognized limits. The same remark, as far as I have learned, will apply to the remaining towns of the country, established under either of the former governments.
The remarks made in a previous part of this report in relation to the missions cover to a good degree the substance of that branch of the in- quiries proposed by the Commissioner of the Land Bureau. I have already stated that originally the "mission lands " may be said to have been co-ex- tensive with the province, since, nominally, at least, they occupied the whole extent, except the small localities of the presidios, and the part in- habited by the wild Indians, whom and whose territory it was their priv- ilege to enter and reduce. Among the papers accompanying this report is included a transcript of their recorded boundaries, as stated in a record book heretofore noticed. It will be seen from the fact first mentioned of their original occupation of the whole province, and from the vast terri- tories accorded to their occupation, as late as the year 1828, how inconsistent with any considerable peopling of the country would have been any notion of proprietorship in the missionaries.
I am also instructed to " make an inquiry into the nature of the Indian Rights [in the soil], under the Spanish and Mexican governments."
It is a principle constantly laid down in the Spanish colonial laws, that the Indians shall have a right to as much land as they need for their habi- tations, for tillage, and for pasturage. Where they were already partially settled in communities, sufficient of the land which they occupied was secured them for those purposes .* If they were wild and scattered in the mountains and wildernesses, the policy of the law, and of the instructions impressed on the authorities of the distant provinces, was to reduce them, establish them in villages, convert them to Christianity, and instruct them in useful employments.+ The province of California was not excepted from the operation of this rule. It was for this purpose especially, that the mis- sions were founded and encouraged. The instructions heretofore quoted, given to the commandant of Upper California in August, 1773, enjoin on that functionary, that "the reduction of the Indians in proportion as the spiritual conquests advance, shall be one of his principal cares ;" that the reduction made, "and as rapidly as it proceeds, it is important for their
* Recopilacion de Indias ; laws 7 to 20, tit. 12, book 4.
+ 1b., laws 1 and 9, tit. 3, book 6.
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preservation and augmentation, to congregate them in mission settlements, in order that they may be civilized and led to a rational life ;" which (adds the instructions) "is impossible, if they be left to live dispersed in the mountains."
The early laws were so tender of these rights of the Indians, that they forbade the allotment of lands to the Spaniards, and especially the rearing of stock, where it might interfere with the tillage of the Indians. Special directions were also given for the selection of lands for the Indian villages, in places suitable for agriculture and having the necessary wood and water .* The lands set apart to them were likewise inalienable, except by the advice and consent of officers of the government, whose duty it was to protect the natives as minors or pupils .;
Agreeably to the theory and spirit of these laws, the Indians in Cali- fornia were always supposed to have a certain property or interest in the missions. The instructions of 1773 authorized, as we have already seen, the commandant of the province to make grants to the mission Indians of lands of the missions, either in community or individually. But, apart from any direct grant, they have been always reckoned to have had a right of settlement ; and we shall find that all the plans that have been adopted for the secularization of the missions, have contemplated, recognized, and pro- vided for this right. That the plan of Hijar did not recognize or provide for the settlements of Indians, was one of the main objections to it, urged by Governor Figueroa and the territorial deputation. That plan was entirely discomfited ; all the successive ones that were carried into partial execution, placed the Indian right of settlement amongst the first objects to be provided for. We may say, therefore, that, however mal-administration of the law may have destroyed its intent, the law itself has constantly asserted the rights of the Indians to habitations and sufficient fields for their support. The law always intended the Indians of the missions-all of them who remained there-to have homes upon the mission grounds. The same, I think, may be said of the large ranchos-most, or all of which, were for- merly mission ranchos-and of the Indian settlements or rancherias upon them. I understand the law to be, that wherever Indian settlements are established, and they till the ground, they have a right of occupancy in the land. This right of occupancy, however-at least when on private estates -is not transferable; but whenever the Indians abandon it, the title of the owner becomes perfect. Where there is no private ownership over the settlement, as where the land it occupies have been assigned it by a functu- ary of the country thereto authorized, there is a process, as before shown, by which the natives may alien their title. I believe these remarks cover
* Law 7, tit. 12, Recop. Indias ; ib., laws 8 and 20, tit. 3, bouk 6.
t Ib., law 27, tit. 6, book I. Pena y Pena, 1 Practica Forense Mejicana. 248, etc. Alaman, 1 Historia de Mejico, 23-25.
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the principles of the Spanish law in regard to Indian settlements, as far as they have been applied in Calfornia, and are conformable to the customary law that has prevailed there .*
The continued observance of this law, and the exercise of the public authority to protect the Indians in their rights under it, cannot, I think, produce any great inconvenience ; while a proper regard for long recognized rights, and a proper sympathy for an unfortunate and unhappy race, would seem to forbid that it should be abrogated, unless for a better. The number of subjugated Indians is now too small, and the lands they occupy too insig- nificant in amount, for their protection, to the extent of the law, to cause any considerable molestation. Besides there are causes at work by which even the present small number is rapidly diminishing ; so that any question concerning them can be but temporary. In 1834 there were employed in the mission establishments alone the number of thirty thousand six hun- dred and fifty.+
In 1842, only about eight years after the restraining and compelling hand of the missionaries had been taken off, their number on the missions had dwindled to four thousand four hundred and fifty, and the process of reduction has been going on as rapidly since.
In the wild and wandering tribes the Spanish law does not recognize any title whatever to the soil.
It is a common opinion that nearly all of what may be called the coast country-that is, the country west of the Sacramento and San Joaquin valleys-which lies south of and including the Sonoma District, has been ceded, and is covered with private grants. If this were the case, it would still leave the extensive valleys of these large rivers and their lateral tribu- taries almost intact, and a large extent of territory-from three to four degrees of latitude-at the north, attached to the public domain within the State of California, beside the gold region, of unknown extent, along the foot-hills of the Sierra Nevada. But while it may be nominally the case that the greater part of the coast country referred to is covered with grants, my observation and information convince me that when the country shall be surveyed, after leaving to every grantee all that his grant calls for, there will be extensive and valuable tracts remaining. This is explained by the fact that the grants were not made by measurement, but by a loose desig- nation of boundaries, often including a considerably greater extent of land than the quantity expressed in the title; but the grant usually provides
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