USA > California > Marin County > History of Marin County, California also an historical sketch of the state of California > Part 20
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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 QUICK- SILVER 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 Americans, the parts now known as The Gold Region, were infested with the wild Indians, and no attempts made to settle there. The grant that I refer to was made by Governor Micheltorena, to Don Juan B. Alvarado, in February, 1844, and is called the Mariposas, being situated on the Mariposas 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 ser-
*Beechy's Narrative of a voyage to the Pacific; London, 1831; appendix p. 562.
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vices " of the grantee. It was purchased from the grantee (Alvarado) in Feb- ruary, 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 California which could affect 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 denouncement 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 prescribed by law. No doubt, however, the condition was fulfilled in most instances where it was inserted, unless in a few cases where the lands conceded were in parts of the country infested by the wild Indians, and its fulfillment consequently impossi- ble. 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 Califor- nia in particular.
V. "IN ALL LARGE GRANTS, OR GRANTS OF IMPORTANT OR VALUABLE SITES, OR OF MINES, WHETHER OR NOT THEY WERE SURVEYED AND OCCUPIED UNDER THE GOVERNMENT OF SPAIN OR MEXICO, AND WHEN PUBLICITY 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 points of examination furnished me, with your approbation, by the Commis- sioner 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 accessible in systematic archives and records. My examination, moreover, was suffi-
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cient 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 prov- ince; 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 accompanied the expeditions thither, and combined with the military post. The pueblos of San José 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 farming lots to soldiers who should marry the native bred women at the mis- sions. 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 Cali- fornia, and sometimes exercised it. It was pursuant to his order that presi- dios, missions, and pueblos, were severally established; 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 pos- sessing so little value, these formalities were to a great extent disregarded, and if not then altogether disregarded, the evidence of their observance in many cases were 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
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descriptive, in fact or by repute, of the place granted. The law of custom, with the acquiescence 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 disappeared, 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 circumstances 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 meritorious and just claims as property is held by in any part of the world. They were, in the first place, the meagre 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 (almost 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 com- parison.
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 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
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" Instructions to be observed by the commandant appointed to the new estab- lishments 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 settle- ments. Article thirteen, gave the commandant "equal authority, likewise, to distribute lands to other settlers, according to their merit and conformably . 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 Reg- ulation was adopted, with the royal assent, for the government of the Cali- fornias, and making special provision for the settlement of that province, and the encouragement of colonizers. This regulation was drawn in Monte- rey, 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 Popula- tion, and extension of the establishments of Monterey." The first thirteen articles relate to the presidios and military. Title fourteen relates to the "Political Government 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 irriga- ble 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 grazing lands-allotted to persons of larger claims or means; sometimes direct from the viceroy, usually by the local governor.
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
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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 carly part of this report. The "authority of the granting officers, and their powers for alienating the national domain," were derived from appointment by the Cen- tral Government, and from the general colonization laws and regulations of the Republic. There is litttle room for discrimination between such as are .perfect titles, and such as are inceptive and inchoate." A grant by the terri- torial (or departmental) governors within the extent of cleven sitios constituted, a valid title, and with the approbation of the Departmental Assembly, a per- fect one. After the governor's concession, however, it could not with pro- priety 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 revolution- ary 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 mis- sions, and the grants of Fort Joaquin at the mouth, and Alcatras 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 pro- posed great Macnamara grant or contract, of which the principal papers are on file in the State Department, and have been printed in the Congressional 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 for- merly 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, however, to make a list of them, with the particulars enumerated in the instructions;
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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 diffi- cult 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.
Recurring, then, to the other point which I suppose the inquiry to relate to. The most considerable act, affecting the domain, had subsequent to the accession of the American authorities in California, was a "decree" made by Gen. Kearney, 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 America, 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 Govern- ment 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 Montgomery, 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 previously 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 reser- vations" 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." Portions of them are reputed to be covered by old grants; portions have been settled on and occu- pied 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 pri- vate interests have arisen, that, at this late day, no good, but immense mis- chief 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, amd on
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many of them costly and permanent improvements have been made; improve- ments 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 attach 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 actually 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 Kear- ney'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 publie 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 repressing 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 property at the time of the cessation of the former government, have taken place in and about different towns and villages, by the alealdes and other municipal authorities continuing to make grants of lots and out-lots, more or less accord- ing to the mode of the former government. This, I understand, 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 since the occupation of it by the Amer- ican 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 vil- lages were to be established, there should be liberal allotments to the first set- tlers, with commons for general use, and municipal lands (propios) for the support and extension of the place-that is, to be rented, or otherwise trans- ferred, subject to a tax; and that the principal magistrate, in conjunction with the ayuntamiento, or town council, should have the disposal 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
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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 government, 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 uses and liberties, under the Spanish or Mexican government in New Spain; sometimes much more exten- sive privileges have no doubt been granted. The instructions of 1773 to the commandant of the new posts, authorizes pueblos to be formed, without spe- cifying 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 munici- pal allotments to be made, "conformable to the law;" and this likewise 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 com- mon 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 municipal author- ities who succeeded him, as is conformable to Spanish and Mexican law and cus- tom. This was the case under the Spanish government; and I am not aware that the principle has been changed, though no doubt grants have been made to indi- viduals which infringed on such village limits. The Territorial Deputation of California, however, by an act of August 6, 1834, directed that the ayunta- iniontos 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.
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