USA > California > Mendocino County > History of Mendocino County, California : comprising its geography, geology, topography, climatography, springs and timber > Part 23
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HISTORY OF MENDOCINO COUNTY, CALIFORNIA.
" 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 early 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 eleven 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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HISTORY OF MENDOCINO COUNTY, CALIFORNIA.
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 an l 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- ncy's decree, and portions of which it is understood have been put in the hands of rentees; perhaps the most equitable use that could be made of them (except, as before, the parts needed for public uses), would be to relinquish them to the city, to be sold as the beach and water lots have been; with due regard, at the same time, to rights accruing from valuable improvements that may have been made upon them, but 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 alcaldes 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- inientos of the pueblos should "make application for common and municipal lands (ejidos y propios) to be assigned them." Wherever it shall appear that this was done, the town, I suppose, could only now claim what was then set apart for it. Where it was omitted or neglected, custom, reputed limits, and the old law, would seem to be a safe rule.
As. to the point now under consideration, that of San Francisco, I find
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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 at the mission. San Francisco is situated on a tongue or neck of land lying between the bay and the sea, increasing in breadth in a 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, inade 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 José 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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