USA > California > Marin County > History of Marin County, California also an historical sketch of the state of California > Part 21
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As to the point now under consideration, that of San Francisco, I find
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HISTORY OF MARIN COUNTY, CALIFORNIA.
that in the acts of the Departmental authorities the settlements in and about the presidio were styled "the pueblo of San Francisco," and the particular 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 privileges were not, therefore, at any time limited to the point of Yerba Buena. Originally, probably, it had boundaries in common with the mission of Dolores, 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 Francisco was extended, and special license given to its principal magistrate to grant lots «it. 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 southerly direction. A measurement of four leagues south from the presidios would give the city, in the present advanced value of property, a magnificent corporate domain, but not so much as was fairly assignable to the precincts of the presidio under the order of 1791, nor so much as all new pueblos are entitled to under the gen- eral 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 loca- tion and improvement, a claim both under our own law and custom and under the Spanish law, entitled 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 sea. and bay, with suitable provision for protecting private rights, whether under old grants or by recent improvements, and reserving such sites as the govern- ment 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 before, 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, mak-
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ing 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 hunndred 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, beside their house lots, was no doubt applied to this village. It was designed for an agricultu- ral 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 mil- itary posts. Both villages are situated in fertile plains, selected for their sites with that object. In a report, or information, 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 pre- sidios, 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 possible requisite formalities, with designation of town liberties, and other lands for the common advantage, as likewise titles of ownership given to the inhabit- ants, were approved by the Señor Commandante General, the 6th February of the present year of 1784."
There are also records of families being brought at the government expense,. from the province of Sonora, specially to people the two pueblos. Both these villages-being thus objects of government favor and encouragement-claim. to have been founded with more extensive privileges than the ordinary vil- lage 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 at Mexico. The fact is noted in the index to California papers in the Mexican archives, but I did not find the corre- sponding 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 a legisla- tive action upon the subject, in which, as I understand, the boundaries were fully agreed upon. Some documents relating to this settlement are in the
*. Noticias de Nueva California, by the Rev. Father Palou; MSS., Archives of Mexico.
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archives at San Jose, 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 hundreds of acres; such distribu- tion, 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 concessions, 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 legis- lature, and may be ascertained by an authorized survey.
The city of Los Angeles is one of the oldest establishments of California, 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 privi- leges, are quite large, but probably no more than it has enjoyed for sixty years, or ever since its foundation. The grants made by this 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 recog- nized 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 Gov- ernments.
The remarks made in a previous part of this report in relation to the mis- sions, cover to a good degree the substance of that branch of the inquiries proposed by the Commissioner of the Land Bureau. I have already stated that originally the "mission lands" may be said to have been coextensive with the province, since, nominally, at least, they occupied the whole extent, except the small localities of the presidios, and the part inhabited by the wild
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Indians, whom and whose territory it was their privilege 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 territories 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 habitations, 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 wil- dernesses, the policy of the law, and of the instructions impressed on the author- ities 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 missions were founded and encour- aged. 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 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 dis- persed in the mountains."
The early laws were so tender of these rights of the Indians, that they for_ bade 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 California were always supposed to have a certain property or interest in the missions. The instructions of 1773 authorized, as we have already seen, the command-
* Recopilacion de Indias: laws 7 to 20, tit. 12, book 4.
+ Ib., laws 1 and 9, tit. 3, book 6.
# Law 7, tit. 12 Recop. Indias; ib., laws 8 and 20 tit. 3, book 6.
§ Ib., law 27, tit. 6, book 1. Pena y Pena, 1 Practica Forense Mejicana, 248, etc. Alaman, 1 Historia de Mejico, 23-25.
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HISTORY OF MARIN COUNTY, CALIFORNIA.
ant 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 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 provided 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, there- fore, that, however mal-administration of the law may have destroyed its intent, the law itself has constantly asserted the rights of the Indians to hab- itations 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 formerly 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, how- ever-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 functionary 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 the principles of the Spanish law in regard to Indian settlements, as far as they have been applied in California, 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, pro- duce 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 con- cerning them can be but temporary. In 1834, there were employed in the mission establishments alone the number of thirty thousand six hundred and fifty.+
* 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 govern- ment. These, I suppose to be entitled to the same protection as other private property.
+ This is not an estimate, it is an exact statement. The records of the missions were kept
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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 reduc- tion 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 val- leys-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 tributaries, almost intaet, 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 leav- ing 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 designation of boundaries, often including a considerably greater extent of land than the quantity expressed in the title; but the grant usually provides 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 occupa- tion. I think justice would generally be done by that mode to all the inter- ests 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 circum- stances may have given parties a title to the extent of their nominal bounda- ries, 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 remaindee.
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 ere- ated them, were equivalent to patents from our Government; and those which are not perfect-that is, which lack some formality, or some evidence of com- pleteness- 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
with system and exactness; every birth, 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 government of the precise number of Indians connected with the establishment.
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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 pur- chase, or if they do purchase at its discredited 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 oper- ate 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 war- rant 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 inter- ests and permanent prosperity of all classes in that country best consulted, 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, according to ancient possession, where it dates from the time of the Spanish govern- ment, 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 insti- tuted 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 Marin 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
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June Term 1858 inclusive, by Ogden Hoffman, District Judge; San Francisco;Numa Hubert 1862." The first case we find on page 74 of Vol. 1 .:-
THE UNITED STATES, Appellants, vs. THE HEIRS OF JUAN READ, claiming the Rancho Corte de Madera del Presidio. Claim for one league of land in Marin county, confirmed by the Board, and appealed by the United States. The land claimed in this case is shown to have been granted to Juan Read by Governor Figueroa on the second of October, 1834. The original title is produced, and the signatures duly proven. The expediente-a traced copy of which is filed in the case- contains the petition on which the grant and a record of the proceedings of the Territorial deputation on the second of October, 1835, approving the concession previously made by the Gov. ernor. It is also shown by documentary proof that judicial possession of the granted land was given November 28, 1835. It is also shown that previous to obtaining the grant, and subsequently until his death, the grantee resided with his family on the land, and that since his decease his family have con- tinued to occupy the land. The case seems to present one of the few instances where every requirement of the law has been fully complied with. No reason is perceived by the court, or suggested on the part of the Appel- lants for refusing to confirm the claim. A decree must therefore be entered affirming the decision of the Board of Commissioners.
JOSHUA S. BRACKETT, claiming part of the Rancho Soulajulle, Appel- lants, vs. THE UNITED STATES. Claim for a half-league of land in Marin county, rejected by the Board, and appealed by the claimant. The claim in this case is for a part of the Rancho Soulajulle, originally granted by Governor Micheltorena to Ramon Mesa. Various other claims have also been made for other portions of the same Rancho, and the testimony in this case is; by stipulation, agreed to be used in those cases as if specially taken and filed in each. This claim was rejected by the Board, not on the ground of the invalidity of the original title, but because it did not appear from the mesne conveyances that the land claimed was a part of the original tract granted to Ramon Mesa. The further evidence taken in this Court removes that objection, and the only question that remains to be decided is as to the validity of the original grant. The title given to the interested party is produced, and although the evidence of the signatures of the Governor is not as satisfactory as could have been wished, or as we have had a right to expect from the facility with which Micheltorena's and Jimeno's signa- tures could at any moment be proved in this city, yet as no opposing testimony is offered on the part of the United States, I am inclined to believe with the Board in considering it sufficient, taken with the other tes- timony in. the case, to establish the authenticity of the grant. Had the District Attorney or law agent entertained any doubt of the genuineness of
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