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 33
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* Of course, what is here said of the nature of Indian rights does not refer to titles to lots and farming tracts, which have been granted in ownership to individual Indians by the Government. These 1 suppose to be entitled to the same protection as other private property.
t This is not an estimate, it is an exact statement. The records of the missions were kept with system and ex- actness; every hirth, marriage, and death was recorded, and the name of every pupil or neophyte, which is the name by which the mission Indians were known ; and from this record, an annual return was made to the Govern- ment of the precise number of Indians connected with the establishment.
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that the overplus shall remain to the Government. Although, therefore, the surveys, cutting off all above the quantity expressed in the grant, would often interfere with nominal occupation, I think justice would generally be done by that mode to all the interests concerned-the holders of the grants, the Government, and the wants of the population crowding thither. To avoid the possibility of an injustice, however, and to provide for cases where long occupation or peculiar circumstances may have given parties a title to the extent of their nominal boundaries, and above the quantity expressed in their grants, it would be proper to authorize any one, who should feel himself aggrieved by this operation of the survey, to bring a suit for the remainder.
The grants in California, I am bound to say, are mostly perfect titles; that is, the holders possess their property by titles that, under the law which created them, were equivalent to patents from our Government; and those which are not perfect-that is, which lack some formality, or some evidence of completeness-have the same equity as those which are perfect, and were and would have been equally respected under the Government which has passed away. Of course, I allude to grants made in good faith, and not to simulated grants, if there be any such, issued since the persons who made them ceased from their functions in that respect.
I think the state of land titles in that country will allow the public lands to be ascertained, and the private lands set apart by judicious measures, with little difficulty. Any measure calculated to discredit, or cause to be distrusted the general character of the titles there, besides the alarm and anxiety which it would create among the ancient population, and among all present holders of property, would, I believe, also retard the substantial improvement of the country ; a title discredited is not destroyed, but every one is afraid to touch it, or at all events to invest labor and money in improvements that rest on a suspected tenure. The holder is afraid to improve ; others are afraid to purchase, or if they do purchase at its dis- credited value, willing only to make inconsiderable investments upon it. The titles not called in 'question (as they certainly for any reason that I could discover do not deserve to be), the pressure of population and the force of circumstances will soon operate to break up the existing large tracts into farms of such extent as the nature of the country will allow of, and the wants of the community require; and this under circumstances and with such assurance of tenure as will warrant those substantial improvements that the thrift and prosperity of the country in other respects invite.
I think the rights of the Government will be fully secured, and the interests and permanent prosperity of all classes in that country best con- sulted, by no other general measure in relation to private property than an authorized survey according to the grants, where the grants are modern, or since the accession of the Mexican Government, reserving the overplus ; or,
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according to ancient possession, where it dates from the time of the Span- ish Government, and the written evidence of the grant is lost, or does not afford data for the survey. But providing that in any case, where from the opinion of the proper law officer or agent of the Government in the State, or from information in any way received, there may be reason to suppose a grant invalid, the Government (or proper officer of it) may direct a suit to be instituted for its annulment.
In glancing at the heading of this chapter we must ask the reader not to indulge in the vain hope that a full history of the grants comprised within the limits of what is known as Contra Costa county will be found ; such, indeed, would be beyond the limits of this work, even had we at hand the infinity of resources to be found in the hundreds of cases which have arisen out of them. Our compilation must of necessity be accepted in its crude form. We have striven to our utmost capacity to produce some information which would combine both usefulness and correctness, and to this end have relied chiefly on the information contained in a legal work, on whose title page is the legend, " Reports of land cases determined in the United States District Court for the Northern District of California, June Term, 1853, to June Term, 1858, inclusive. By Ogden Hoffman, District Judge, San Fran- cisco; Numa Hubert, 1862." The first case we find on page 79, vol. 1 :-
THE UNITED STATES, Appellants, vs. SALVIO PACHECO, claiming the Rancho Monte del Diablo. Claim for four leagues of land in Contra Costa county, confirmed by the Board, and appealed by the United States. In this case a grant from Governor Figueroa to the claimant is produced and proved, and evidence is offered to prove the occupation and cultivation of the land within the year, as prescribed in the grant. In the opinion of the Board, the grant is treated as undoubtedly genuine, and the fact of the performance of the conditions as indisputable. No additional testimony has been taken in this Court, nor has any reason for refusing the decree of the Board and rejecting the claim been suggested to us on the part of the appel- lants. The only objection that could have been raised-viz., the want of judicial possession, and the fact that the land is within the ten littoral leagues, has already repeatedly been overruled. A decree confirming the claim must therefore be entered. (December Term, 1855.)
THE UNITED STATES, Appellants, vs. JOAQUIN MORAGA, claiming the Rancho Laguna de Palos Colorados .- Claim for three leagues of land in Contra Costa county, confirmed by the Board, and appealed by the United States. The claimants in this case petitioned on the thirtieth of August, 1835, for the place called " Laguna de los Palos Colorados." The petition was referred to the Ayuntamiento del Pueblo de S. José Guadalupe, and also to the Rev. Padre, for their reports. On receiving these reports, which were favorable, José Castro, Primero Vocal of the Assembly and Political Chief, ad
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interim, made his concession on the tenth of October, 1835, and directed that when the Departmental Assembly should have approved the grant, the corre- sponding title should issue. On the twelfth of October, 1835, the concession was approved, but the " title " does not seem to have issued until the thirty- first of July, 1841. All the foregoing facts appear from the expediente on file in the archives of the former Government. The claimants have also produced the original title delivered to them, which bears date on the tenth of August, 1841, to which is attached a map or diseño certified by Jimeno, Secretary of the Government, to be a copy of that accompanying the expe- diente. The translation of this certificate seems to be omitted. There also accompanies this document the certificate of approval by the Departmental Assembly, and a note or record of an arrangement between Moraga and Candelario Valencia, who seems to have been a colindante or coterminous owner, fixing their common line, and providing for the use in common of an ojo de aqua, or spring of water, which is on the land. The authenticity of all these documents is fully proved, and it is shown that in 1836 the parties went upon the land, built houses, corrals, and placed cattle upon it, and cultivated a considerable portion. The boundaries of the tract are given with some precision in the original grant, and it appears in evidence that the limits of the rancho are well known to those residing in the vicinity. The claim was confirmed by the Board, and we think their decision should be affirmed. (December Term, 1855.)
THE UNITED STATES, Appellants, vs. JOAQUIN Y. CASTRO, Adminis- trator of Francisco Maria Castro, deceased, claiming the Rancho San Pablo .- Claim for about four leagues of land in Contra Costa county, con- firmed by the Board, and appealed by the United States. This case has been submitted to the Court on appeal without argument or the statement of any objection to its validity. We have, however, as in other cases, ex- amined the transcript, which is unusually voluminous, and have perceived no obstacle to its confirmation. The first application for the land appears to have been made by Don Francisco Castro in 1823, and to have been ad- dressed to the Deputation. On the same day a decree was made granting the place solicited, and directing the Military Commander of the Presidio of San Francisco to put the petitioner in possession. This seems, from vari- ous causes, not to have been done, nor does the title to the land appear to have issued to Francisco Castro during his life-time, although, as appears from the expediente, he had gone upon the land, placed cattle upon it, and from time to time solicited of the Governor the formal title. On his death, his son and the administrator of his estate, Joaquin Ysidro Castro, petitioned the Governor on the twenty-sixth of May, 1834, for the land occupied by the family, stating it to be three leagues in extent, and annexing to his petition a map of the land solicited. The Governor, after having caused the documents on file in the case of the previous application of Francisco
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Castro to be produced, acceded to the petition, and on the twelfth of June, 1834, the formal title issued to the successors of Francisco Castro. In this title the boundaries of the land are mentioned, and reference is made to the map which accompanies the expediente. The extent of the land granted is stated to be three square leagues, more or less. On the twenty-third of June, 1835, Joaquin Ysidro Castro presented another petition to the Gov- ernor, in which he states that he had, through inadvertence, neglected to ask for all the land included in the boundaries indicated on the diseño, and he solicited an augmentation of the previous grant so as to include the whole tract designated on the map. By the report of Negrete, the Secre- tary to whom the Governor referred this petition, it appears that the land comprised within the boundaries referred to had been ascertained to be of the extent of four and one twenty-fourth square leagues. On the four- teenth of August, 1835, the Governor granted to the successors of Francisco Castro the augmentation solicited, and on the twentieth of August, 1835, the formal title was issued for the land, as originally bounded, and in the fourth so called condition of the title the extent of the tract is declared to be " four square leagues and a little over, including the surplus which by the decree of the fourteenth of August of the present year was granted to them, and as shown by the map which accompanies the expediente and already conceded to them." It is this tract of four square leagues and a little over that is now claimed by the appellees. All the above recited facts appear from the expedientes on file. The authenticity of the original docu- ments produced by the interested parties is fully proved, and their long continued occupation and extensive improvements of the land for more than thirty years clearly established. It also appears that the grant was approved by the Departmental Assembly. We are of the opinion therefore that this claim is valid, and that the decision of the Board should be affirmed. (December Term, 1855).
THE UNITED STATES, Appellants, vs. ROSA PACHECO et al., claiming the Rancho Arroyo de las Nueces y Bolbones .- Claim for two leagues of land, more or less, in Contra Costa county, confirmed by the Board of two leagues, and appealed by the United States and by claimants. In this case appeals have been taken both by the United States and by the claimants. The Board confirmed the title to the land to the extent of two leagues, and the claim- ants assert that they are entitled to a confirmation of the tract granted by metes and bounds, and irrespective of quantity. With regard to the validity of the grant no question seems to be raised. In the brief filed on the part of the United States it is observed that, " on the general question of the validity of the whole grant, it is not designed to repeat objections and argu- ments which this Court has so often decided to be untenable." The valid- ity of the title being thus admitted, under the principles laid down in former adjudications of this Court, the only question is as to the extent to which
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it should be confirmed. The petition was presented to Governor Figueroa on the fifteenth of May, 1834, and the usual order of reference for informa- tion was made. After receiving the report of the Ayuntamiento of San José Guadalupe, a further reference was made to the Alcalde of Monterey, directing him to examine witnesses, to be produced by the petitioner, as to her qualifications, as to whether the land was vacant, as to its extent and nature, and as to whether she had the means of stocking it with cattle. The Alcalde accordingly took the depositions of the witnesses, by which it appeared that, as stated by two of them, the land was two and one-half leagues, " a little more or less," long, and about two leagues broad; and as deposed by the third, that it was two leagues long, more or less, and about two leagues broad. Upon receiving these reports, the Governor made the usual order of concession, declaring this petitioner " owner of the land be- tween the Arroyo de las Nueces and the Sierra de los Golgones, bounded by the said places and by the Ranchos of San Ramon, Las Juntas and Monte del Diablo," and directing the expediente to be sent to the Most Excellent Deputations for their due approval. The grant or final title, in what would seem to be strict compliance with the colonization laws, was withheld until the approval of the Assembly had made the grant definitely valid. On the eleventh of July, 1834, the Assembly passed a resolution approving "the grant made to Doña Juana Sanches de Pacheco of the place included between the Arroyo de las Nueces and the Bolbones." On the thirty-first of July, the Governor, after referring to the resolution of approval, ordered the title to issue. It accordingly issued on the same day. The grant, after reciting that Doña J. S. de Pacheco had petitioned for the land included between the Arroyo de las Nueces and the Sierra de los Golgones, bounded by the said places and the Ranchos de las Juntas, San Ramon and Monte del Diablo, and after referring to the resolution approving the grant of the land between the Arroyo de las Nueces and the the Sierra de los Golgones, grants to her " the aforesaid land, declaring to her the ownership of it by these presents, and subject to the following conditions." The fourth condition is as fol- lows: "The land of which mention is made is two square leagues, a little more or less, as shown by the map which goes with the expediente. The magistrate who may give the possession will cause it to be measured in conformity with the ordinance, for the purpose of making out the bounda- ries, leaving the surplus which may result to the nation for its convenient uses." It is contended on the part of the United States that by this con- dition the quantity of land is limited to two leagues, a little more or less. It is urged on the part of the claimants, that the original order of conces- sion, the resolution of approval, and the description of the land in the grant itself, clearly show the intention to have been to grant the land as delinea- ted on the diseño and described in the grant; and that if the fourth condi- tion be construed to limit the quantity, it is repugnant to the rest of the
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grant, inconsistent with the previous concession and resolution of approval, and probably introduced by mistake. If such was the intention of the Governor when he made the concession, and of the Assembly when they approved of it, the final title, issued with an express reference to, and avowed conformity with the resolution of approval, should, if possible, be so construed as to give effect to it. The inquiry therefore is, did the Governor intend by the fourth condition to limit the quantity of land granted, or is the mention of quantity to be treated as merely a mis-descrip- tion of the extent of the land, which should, as at common law, yield to boundaries, when the latter are distinctly mentioned, and when such con- struction is necessary to give effect to the intention of the parties ? In the case of the United States vs. Wright, it was held by the Court that where land had been granted by specific boundaries, which included in fact about eight leagues, and the condition specified the extent as four leagues, a little more or less, the grant could not be construed to embrace the larger quantity. But in that case it appeared that the petitioner himself, as well as the wit- nesses produced by him, had represented the land as only "three or four leagues in extent." The Governor, therefore, in limiting the grant to the quantity represented to be included within the boundaries, either merely carried into effect the understanding and intentions of all parties, or else the representations were fraudulent, and the parties to the deception could not in a Court of Equity be allowed the fruits of their fraud. It seemed to the Court in that case that justice would be satisfied and every substantial right protected by limiting the extent of the land to the quantity which the Governor intended to grant and the petition asked for. But the case at bar is different. The Governor was fully apprised of the extent of the land, not only by the testimony of the witnesses produced before the Alcalde, but the diseño which was submitted both to the Governor and the Assem- bly, and which is referred to in the condition, shows the land included within the boundaries to be of about the extent mentioned by the witnesses.
The boundaries mentioned in the concession, the resolution of approval, and the grant, are the same as those indicated on the map, and the Gov- ernor, in all probability, derived his description of the land from that source. It is clear from this fact, as well as the express language of the condition, that the Governor intended to grant the land " as shown by the map;" and that map contains a scale which must, independently of other information, have apprised the Governor that the quantity was greater than two leagues. In this, as in all analogous cases, the only object of the Court should be to carry out the instructions of the granting power. When, therefore, we find the land granted by specific boundaries, and those boundaries represented to the grantor to contain a certain quantity ; when the grantor's attention has been directed to the point ; and on ascertaining that the quantity is the same as that represented, he nevertheless proceeds to grant all the land
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ChartBlourter
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within those boundaries, and refers to the map which clearly indicates the quantity-under all these circumstances, we must consider that the inten- tion was to grant all the land included within the boundaries, notwith- standing that in a subsequent condition the quantity may be erroneously stated. That conditions applicable only to one species of grants were often asserted by mistake in grants of a different species is notorious. In this case the mention of two leagues as the extent of the granted land is, per- haps, owing to the fact that the clerk who drafted the document forgot that a tract two leagues broad by two wide contained four and not two square leagues. However this may be, we think it clear that in this case all the land within the boundaries was intended to be granted; and as there is no proof or suggestion that the land so included exceeds in extent the quantity testified to by the witnesses before the alcalde, that the claim should be confined to the tract as described in the grant and delineated on the map. (June Term, 1856.)
THE UNITED STATES, Appellants, vs. JONATHAN D. STEVENSON, et al., claiming the Rancho Medanos .- Claim for two leagues of land in Contra Costa county, confirmed by the Board, and appealed by the United States. The claim in this case is for a piece of land called " Medanos," embracing two square leagues, " a little more or less." It was confirmed by the Board, and the cause has been submitted to this Court on appeal without argu- ment, or the statement of any objection to its validity. The title paper is produced by the claimants, and its genuineness duly certified. The expe- diente from the archives not only shows that the preliminary proceedings were in due form, but that the grant was confirmed by the Departmental Assembly about six months after its date. It is also shown that the con- ditions were fully complied with. The delineation on the diseño appears to be rude and inexact, but the title itself describes the boundaries of the tract with some precision. In that document the land is mentioned as that known by the name of " Medanos," and bounded on the south by the land of citizen Noriega, on the north by that of citizen Salvio Pacheco, on the east by the river San Joaquin, and on the west by the " lomarias," or small hills. The third condition states the extent of the granted land to be two square leagues, a " little more or less." Some of the witnesses appear to have supposed that the land embraced within these boundaries would include a tract of far greater extent than that mentioned in the condition. But it is clear that they have confounded the "lomarias" mentioned in the grant with the range of mountains known as the Contra Costa hills, which lie at a con- siderable distance, and which would, if taken as the western boundary, not . only include a tract of country of great extent, but also one or more inter- vening Ranchos. It would seem, however, that the " lomarias" spoken of are a range of low hills, and that the land included within these and the
20
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other boundaries of the grant has about the extent mentioned in the grant. Such appears to have been the view taken of the case by the Board, and we see no reason for a different conclusion. The mesne conveyances appear to be regular. Under the proofs offered, the claimant, Stevenson, is entitled to a confirmation of the part conveyed to him by the deed as reformed according to the intentions of the parties under the decree of the District Court of this State. A decree affirming the decision of the Board must be entered. (June Term, 1856.)
INOCENCIO ROMERO et al., claiming El Sobrante, Appellants, vs. THE UNITED STATES .- Claim for five leagues of land in Contra Costa county, rejected by the Board, and appealed by the United States. It appears from the expediente on file in the archives, that on the eighteenth day of Jan- uary, 1844, the brothers Romero petitioned the Governor in the usual form for a grant of land, being a sobrante lying between the ranchos of Moraga, Pacheco and Welch. This petition was by a marginal order referred to the Honorable Secretary for his report. The Secretary referred the papers to the First Alcalde of San José, with directions to summon Moraga, Pacheco and Welch, hear their allegations, and return the papers to the office. On the first of February, 1844, the First Alcalde reports that the owners of the lands bounded by the tract have been confronted with the petitioners, and that the former are willing and desirous that the land be granted. He adds that it had come to his knowledge that one Francisco Soto claimed the tract some six or seven years ago, but as he had never used nor cultivated it, the petitioners appeared to him to be entitled to the favor they ask. On the fourth of February, 1844, Manuel Jimeno, the Secretary, reports to the Governor that, in view of the report of the First Alcalde, there would seem to be no obstacle to making the grant. On this report of the Secretary, the Governor makes the following order : "Let the Judge of the proper dis- trict take measurement of the unoccupied land that is claimed, in presence of the neighbors, and certify the result, so that it may be granted to the petitioners .- Micheltorena." On the twenty-first of March, 1844, the claim- ants addressed a petition to the Governor, representing that, owing to the absence of the owners of the neighboring lands, the Judge of the Pueblo of San José had been unable to execute the superior order, (above recited), and soliciting that his Excellency would grant the tract to them, “either provisionally, or in such way as he would deem fit," while there was yet time for planting, etc. On this petition Jimeno reports (March 23, 1844,) that the original order should be carried into effect as to the measurement · of the land, and that "as soon as that was accomplished, Señor Romero can present himself with Señor Soto, who says he has a right to the same tract." The Governor thereupon made the following report : " Let every- thing be done agreeably to the foregoing report .- Micheltorena." The above
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