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 34
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).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80
299
Mexican Grants.
documents constitute the whole expediente on file in the archives. From the documents produced by the claimant from the files of the Alcalde's office, it appears that on the same day, March 23, 1844, Jimeno communi- cated to the Alcalde the order of the Governor that the Sobrante solicited by the Romeros should be measured, and that if it should be necessary a measurement of the adjoining ranchos should also be made-with the un- derstanding that those parties who should become " agraciados " should bear the expense. It is evident that up to the date of the last order of Michel- torena no grant of the land had issued. That pursuant to the recommen- dation of Jimeno, the Governor declined to make even a provisional grant as solicited, and that final action in the matter was deferred until a meas- urement should be made, and until Romero and Soto should present them- selves. Jimeno does not seem to have finally adopted the opinion of the Alcalde that Soto had forfeited his rights to the land, for he recommends to the Governor, as we have seen, that the land should be measured without delay, and that then "Romero should present himself, joined with Señor Soto, who says he has a right to the same land." In this recommendation the Governor concurs. There is certainly nothing in these proceedings which indicate that the Governor had finally determined to grant the land, though it is evident that he regarded the application with favor ; still less can any of the orders made by him be construed to import a present grant. On the contrary, it is clear that the Governor refuses to make even a pro- visional grant, but insists that a measurement shall first be made, and then tnat Romero and Soto shall appear before him, evidently with the view of determining the rights of the latter.
The subsequent proceedings, as shown by documents exhibited by the claimants, confirm this view. On the fifteenth of January, 1847, Romero and Garcia, the present claimants, appeared before John Burton, the Alcalde of San José, and executed a paper in the presence of the Alcalde and two witnesses, reciting a sale by Romero to Garcia of one-half of the land, and stipulating that both parties should remain subject to the final result, "if the Governor grant it in ownership." And if the contrary should be " the case, then Garcia should lose equally with Romero, without any right to reclaim the consideration paid." This paper is signed by the parties, the Alcalde and the witnesses. On the twenty-eighth of May, 1847, José Romero addressed a petition to John Burton, Alcalde of San José, representing that as early as 1844, an order from the former Governor had been sent to the Alcalde's Court requiring a measurement of the land called " Juntas ;" that such measurement had not yet been made. He therefore solicits the Alcalde to give him a testimonial of the reports which in the year 1844 were sent to the Government, so "that we can be granted said land." The Alcalde in a marginal order directs that the lands should be measured according to the original order of the Supreme Government.
300
History of Contra Costa County.
In the margin of the order transmitted by Jimeno, under date of March 23, 1844, the Alcalde writes : " Be it done accordingly, on the ninth of April, 1847. The interested parties will proceed to take possession of the men- tioned land according to the order of the Governor. I further order, that in case any bordering land-owner demand it, a measurement of his land be ordered. John Burton, J. P." It appears, moreover, that about two months before the date of their last petition, viz: on the thirty-first of March, 1847, José Romero had addressed a petition to the same Alcalde, representing that some years before he had solicited a piece of land in the Cañada de San Ramon, and bordering upon lands of Don M. Castro, and that his Ex- cellency had ordered the lands of Castro to be measured, which had never been done. The petitioners further stated that they were two brothers, with a numerous family, and were without any piece of land whatever to raise cattle ; they therefore begged the Alcalde to provide for them as soon as possible, that they might retain and locate their stock. The Alcalde on the fifth of April orders that the fulfillment of the superior order should be at once proceeded to. The entry in the marginal order transmitted by Jimeno was made on the Romeros' petition of the twenty-third of March, and not on that of the twenty-eighth of May, above referred to; for it directs the measurement to be proceeded to on the ninth of April. And, finally, on the twenty-seventh of December, 1847, K. H. Dimmick, then Alcalde, makes an order in which, after reciting that disputes as to the boundaries existed between the Romeros and Domingo Peralta, he directs that the boundaries be established and adjusted in the manner specified in the order of the Governor, dated twenty-third of March, 1844. I have stated the contents of these various documents with some particu- larity, because an attempt has been made since the rejection of the claim by the Board, to show by parol evidence that a final grant issued to the Romeros, which has been lost. We have seen that the last document in the expediente is the order of the Governor of the twenty-third of March, 1844, adopting Jimeno's recommendation that a measurement should be made before issuing the final grant, or even a provisional one, as solicited by Romero; and even then it does not seem that the grant was certainly to be made, for Romero and Soto were to "present themselves," evidently for the purpose of enabling the Governor to ascertain their respective rights. Nothing further seems to have been done, either by the government or the petitioners, until 1847. On the thirty-first of March of that year we find the Romeros representing to the Alcalde that the Governor had some years before ordered the land to be measured, which had not been done; and that they were without any piece of land whatever, and they beg the Alcalde to provide for them. The Alcalde thereupon directs that the superior order of March 23, 1844, be proceeded to. On the 28th of May, 1847, the Romeros again petition the Alcalde, representing that as early as 1844, the Governor
301
Mexican Grants.
had sent to the Alcalde's Court an order requiring a measurement of the land ; they therefore ask a testimonial of the reports and orders in his office, "so that we may be granted the land." The Alcalde again directs the superior order of March 23, 1844, to be complied with, and on the following day a declaration is made before the Alcalde by Antonio M. Pico, that Don J. Moraga and Don L. Pacheco, the colindantes, had declared that for their parts the surplus of land which does not belong to them "could be granted to the Romeros." And, finally, the deed from Romero to Garcia of January 15, 1847, expressly stipulates that both the parties to it should remain sub- ject to the final result, " if the Governor grant it in ownership, and if the contrary should be the case, then Garcia should lose equally with Romero without reclamation." These documents appear to me to establish beyond doubt that all action of the Government on the application of the Romeros terminated with the order of March 23, 1844, directing the measurement as an indispensable preliminary to a grant, either final or provisional. That during the year 1847, the petitioners made several attempts to have that measurement effected, but apparently without success; and that up to December, 1847, neither they nor any one else pretended that the order of March 23, 1844, was not the last act of the Government in the premises. The parol testimony offered to prove that a grant issued will be briefly adverted to. C. Brown swears that the Romeros have lived on the Rancho since 1840, and that he always understood they had a grant. He does not pretend to have seen it. James M. Tice swears that he has searched for the title papers, but has been unable to find them. J. J. P. Mesa saw a bundle of papers in Romero's hands on his return from Monterey, in 1844. The bundle was not opened, but Romero said they were his title papers. He subsequently saw Micheltorena's order for the measurement of the land. He does not pretend to have seen any grant. It is to be observed thåt Mesa was examined before the Board, and did not mention this circum- stance; and that he can neither read nor write. Inocencio Romero, who dis- claims any present interest in the land, swears that he had a grant ; that he gave it to Mr. Tingley to be presented to the Board, and that since then he has not seen it. He also states that the grant was made by Micheltorena a short time after he arrived in the country, and that Arce, who was then his secretary, delivered it to him. The expediente, however, shows that Jimeno was the secretary, at least until March 23, 1844. And as it is clear that at that date the grant was suspended until a measurement should be made, the title papers seen by Mesa in the hands of Romero on his return from Monterey in 1844, must have been the papers now produced.
The testimony of Mr. G. B. Tingley is the only evidence in the cause which approaches proof that a grant issued. This witness swears that on the trial of a suit between Domingo Peralta and the Romeros, a grant from Micheltorena to the latter was produced in evidence; that the petition was
302
History of Contra Costa County.
for a sobrante; that the signatures were genuine; and that one Sanford took the papers, and he has never seen them since. On his cross-examina- tion he states that the papers produced were the original petition, and the marginal order of reference an information signed by A. M. Pico, then a decree of concession, and final a title in form, with a condition that the grant should not interfere with the adjoining grants. If these papers were produced, they must all, with the exception of the grant, have been pro- cured from the archives, for the petition, the informes, and the decree of concession form part of the expediente which remains on file. That expe- diente is in evidence in this cause, and contains no decree of concession whatever, nor any draft or " borrador " of the formal title delivered to the party, as is almost invariably the case where such a document issued; on the contrary, the last order of the Governor, in effect, refuses, as we have seen, to grant the petition for even a provisional title until a measurement was made, which clearly was not done until after December, 1847, if at all. Besides, if all these papers were produced from the archives and were delivered to Sanford, how does it happen that only a part of them were restored to the archives, and are now produced ? José Ramon Mesa, a witness produced on the part of the United States, testifies that he was present at the trial of the suit referred to by Mr. Tingley ; that no formal title was produced by the Romeros, but only a provisional license to occupy, subject to the boundaries of the neighboring proprietors, during the pen- dency of the proceedings to obtain a title. The witness further swore that he heard Inocencio Romero state to Domingo Peralta, in reply to an inquiry as to what title he had, that he had no title; and that he had intended to take steps to get one, but that all he had was a " provisional license." This provisional license is in all probability the order made by John Burton, Justice of the Peace, in April, 1847, on the margin of the Governor's order of March 23, 1844, for the measurement of the land, and was in compliance with Romero's petition to him of the thirty-first of March, 1847. The Justice of the Peace directs that "the interested party will proceed to take possession of the land, according to the order of the Government," etc. As a copy of Jimeno's order, with this marginal entry of Burton's, appears to have been furnished to Romero, and by him sent to Garcia, it is in all prob- ability the " license " referred to. It will not be pretended that any rights could be conferred by such an order of an American Justice of the Peace in April, 1847. The record of the suit between Peralta and the Romeros has been produced. It contains no evidence whatever even tending to show that a grant was produced at the trial. Antonio M. Pico, a witness pro- duced by the claimants, swears that he received an order from the Governor to put the coterminous neighbors, Pacheco and Moraga, into possession of their land, and to measure the same for the purpose of separating them from those of the Romeros ; that he was directed by the same order to put
303
Mexican Grants.
the Romeros in possession of the surplus ; that he summoned the colindantes, but they did not appear : that he did not then execute the order, but repeated the summons to them ; that the Romeros made a complaint to the Governor, and he, the witness, received from the latter a new order to carry the former into effect, upon which he told the Romeros to go there-which they did in 1844. This witness explicitly states that no title to the land in favor of the Romeros was ever exhibited to him. The orders referred to by Pico are obviously those contained in the expediente. The first order did not, as he supposes, direct him to put the Romeros in possession, but only to measure the land and certify the result, "so that it might be granted." Romero's complaint or petition to the Governor, stating the failure of the alcalde to measure the land, and asking for a provisional grant, we also find in the expediente, and also the second order of the Governor, which, like the former, only directs the measurement of the land-the Gov- ernor having, as we have seen, adopted Jimeno's recommendation that the land should be measured, and Soto and Romero should present themselves before any grant should issue. On the parol proofs alone I should come to the conclusion that Mr. Tingley is mistaken in supposing that a grant for the land was ever produced. But the evidence afforded not only by the expediente, but by the repeated declarations of the Romeros themselves in their various petitions and in the conveyance to Garcia, remove every pos- sible doubt on the question. The facts of the case are unmistakable. The Romeros solicited land, which the Governor was disposed to grant. He directed a measurement preparatory to making the grant, and this meas- urement never was effected. I cannot perceive how this Court can recog- nize these proceedings as giving any title to the lands. It may be admitted that in 1844 they went upon the land, as stated by Pico-though, if so, it is singular that John Burton, Alcalde, should, in April, 1847, have ordered " the interested parties to proceed to take possession of the mentioned lands, according to the order of the Government." But this occupation, not authorized, so far as it appears, by the Government, and only made in pur- suance of a verbal permission of Pico, and without the measurement of the land, as required by both orders of Micheltorena, can hardly be deemed to have conferred any title, either legal or equitable, upon the claimants. The case is, perhaps, a hard one, for there seems no reason to sup- pose that the grant would have been refused if the measurement had been made and Soto's rights had been found to have been forfeited. But no grant, either perfect or inchoate, was made, nor any promise given that one should be made. The petitions were favorably received, a provisional grant refused, and a measurement directed. There the action of the Goverment ended, and certainly such proceedings did not confer such a right of prop- erty in the land as this Court can recognize. The claim must be rejected. (June Term, 1857.)
.
304
History of Contra Costa County.
ALICE MARSH, claiming the Rancho Los Meganos, Appellant, vs. THE UNITED STATES .- Claims for twelve leagues of land in Contra Costa county, rejected by the Board, and appealed by the claimant. The claim in this case is for a tract of land called " Los Meganos " granted to José Noriega, October 13, 1835, and approved by the Territorial Deputation, October 15, 1835. The final documents and titulo issued December 2d of the same year. The original grant was not produced to the Board, nor was any satisfactory evidence of its contents given. The expediente, however, containing the peti- tion, informes and decree of concession, was found duly archived, and on these documents, together with parol proof that the titulo had in fact issued, the claimant relied for confirmation. In his petition, Noriega set out the boundaries of the land solicited with some particularity, and states its ex- tent to be four leagues from south to north, and three from east to west. Inasmuch as the decree of concession and the approval of the Deputation showed that the lands of "Los Meganos" had been granted, it was contended that the lost titulo must have embraced the land solicited in the petition. It was not, however, urged that all the land embraced within the bounda- ries had been granted, and the claim was confined to a tract of twelve square leagues, which had been, at the instance of the claimant, surveyed by the Surveyor-General. By this survey, the last line which enclosed the Rancho had been so run as to include the precise quantity of twelve leagues. Had the Surveyor's lines been extended so as to embrace the entire tract accord- ing to the principles on which the survey was founded, the land would have been found to be about fifteen square leagues in extent. A survey, according to the description contained in the petition, would, it is observed by Mr. Commissioner Felch, embrace some twenty or twenty-five square leagues of land. Since the cause has been pending on appeal, the original record of the titulo has been produced from the archives, where it is set out at length. The fourth condition states the extent of the granted land is to be a little more than three square leagues, and it contains the usual direction for a judicial measurement and a reservation of the sobrante. It is urged that this limitation should be disregarded as being repugnant to the obvious intention of the grantor, and probably introduced by mistake. It is not, perhaps, very clear what the claimant supposes herself entitled to ; whether she contends that the grant should be treated as a grant by metes and bounds, and the whole tract embraced within the boundaries mentioned in the petition should be confirmed to her, to the extent of twenty or twenty- five leagues, or whether, as it appears to have been admitted before the Board, she should be restricted to the quantity of twelve leagues, according to the survey procured to be made. It is presumed, however, that indepen- dently of the limitation contained in the fourth condition, it would not be contended that the Governor could have intended to grant a tract of twenty or twenty-five leagues in extent, when the petitioner himself stated
305
Mexican Grants.
it to contain only twelve leagues, and two of the witnesses a much smaller quantity ; and such seems to have been the view taken of the grant by the counsel for the claimant.
The grant cannot, therefore, be treated as a grant by metes and bounds, and the only question is, which of the specifications of quantity shall gov- ern-that contained in the petition or that contained in the grant ? It is urged that the Governor by his decree of concession, and the Deputation by confirming the title to " Los Meganos," clearly indicated their intention to grant the tract as described in the petition, and of the extent therein mentioned. Had the boundaries of this tract been found to embrace only the quantity stated in the petition ; had the attention of the Governor been particularly directed to the question of its extent ; had he been apprised of its extent by the testimony of witnesses, and with these facts before him, repeated in his concession, and in the title, the boundaries as set forth in the petition ; and had the deputation confirmed with express reference to those boundaries, we might have supposed, as in the case of Rosa Pacheco, that the limitation in the condition was the result of a clerical error --- provided that in attributing to the Governor the intention to grant by metes and bounds, we did not suppose him to have exceeded the quantity of eleven leagues to which his granting power was limited. But in this case the proceedings show, that in all probability the limitation in the con- dition accurately expressed the intention of the Governor and of the Assembly. The petition was referred to the Alcalde of the Capital to take information, by the oaths of three competent witnesses, as to the qualifica- tions, etc., of the petitioner, and the extent and character of the land. One of them states that the tract petitioned for may be three leagues long, and in width from two leagues to less than one-half a league. The second wit- ness states its extent to be about two and one-half or three leagues in length, and from one-half to two leagues in width. The third witness states it to be four or five leagues in length, and three in breadth. It thus appears ' that by the evidence of two out of three witnesses, the Governor and the Deputation were apprised that the extent of the land of " Los Meganos" was about three leagues. When, therefore, they granted the land by that name, it was at least as probable that they intended a tract of the extent sworn to by the two witnesses, as of the larger extent sworn to by the third, or as represented by the petition. The limitation in the condition of the grant removes all doubt upon the subject, and unequivocally expresses the intention which, without it, we might well have attributed to the gran- tor. The claim to twelve leagues rests entirely upon the supposition that the Governor intended, by the term " Los Meganos," a tract of the extent represented by the petitioner. But when we find him informed by the depositions of two witnesses that the land of that name only included about three leagues, there is surely as much reason to suppose that he meant
306
History of Contra Costa County.
a tract of the smaller extent as of the larger. There is, therefore, nothing repugnant to the apparent intention of the Governor or the Deputation in the introduction of the limitation of quantity in the fourth condition. Nor can I perceive.on what grounds the Court would be authorized to strike from the grant so important a part of it. As the grant can in no case be deemed a grant by metes and bounds, the words " a little more than," which precede the words " three leagues," are not susceptible of any definite construction. They were probably inserted as an authority to the judicial officer, slightly to increase the quantity for convenience of boundary, or similar reasons. As no such discretion can be confided to the Surveyor- General, those words must be rejected for uncertainty, and the claimant confirmed to the precise quantity of three square leagues, to be located within the boundaries described in the petition, in the form and divisions prescribed by law for surveys in California, and embracing the entire grant in one tract. (December Term, 1857).
DECISION OF THE SECRETARY OF THE INTERIOR IN THE MATTER OF THE SURVEY OF THE RANCHO EL SOBRANTE, IN CALIFORNIA.
DEPARTMENT OF THE INTERIOR,
Washington, February 23, 1882.
To the Commissioner of the General Land Office-SIR: I have con- sidered, on appeal from the decision of your office of February 26, 1881, the matter of the survey of the California private land claim known as El Sobrante Rancho, situate in the counties of Contra Costa and Alameda, and confirmed to Juan José and Victor Castro by the Board of Land Commis- sioners and the United States District Court for the Northern District of California, under the Act of Congress approved March 3, 1851 (9 Stats., 631).
Such facts, appearing of record in your office, as are necessary to a pro- per understanding of the main questions presented for consideration, will be stated as briefly as practicable.
On the 26th of May, 1852, the said Juan José and Victor Castro, by their attorneys, H. W. Carpentier and John Wilson, filed in the office of the said Board of Land Commissioners a petition in which they set forth, among other things, that on the 22d of April, 1841, they presented their joint peti- tion to Juan B. Alvarado, then Governor of Upper California, " for a grant of all the vacant (sobrante) land lying between the Ranchos San Antonio, San Pablo, Pinole, Valencia, and Moraga, being the surplus or overplus left between the said Ranchos after the boundaries to the Ranchos " should " be ascertained and settled ;" that "on the 23d of April, 1841, the said Alvarado, so being Governor, and having full power and authority to do so, granted the land as prayed for in the said petition," and directed the petitioners "to appear anew before the proper authority with a map of the land so asked as soon as the boundaries of the Ranchos named in said petition
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.