USA > California > Land in California, the story of mission land, ranches, squatters, mining claims, railroad grants, land scrip, homesteads > Part 10
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11 O. A. Rouleau, "Mining Law in California" (MS property of the Title Insurance and Guarantee Company, San Francisco).
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there was gold on the remote ten-square-league rancho that Thomas O. Larkin had bought for him for $3,000 from Juan B. Alvarado who, in turn, had obtained it as a grant from the Mexican governor, Micheltorena. There was gold in plenty! Creek beds were so rich that Frémont's Mexicans scooped up flakes in cups and pans, and with their knives dug gold out of the crevices in the bedrock. The news of the strike spread and soon throngs of miners were all over the rancho. For several years prospectors mined at will and Frémont was without power to evict these trespassers, for his title had not yet been confirmed. Several valuable mines were developed on Las Mariposas by men who thought they had the same right there they had elsewhere in the Mother Lode country. In 1856 the Supreme Court of the United States finally upheld the validity of Frémont's title, based on the Mexican grant to Alvarado, thereby establishing full ownership of the "ten- million-dollar" rancho, and all its minerals, in John C. Frémont.
Litigation over Las Mariposas, and that over the Fer- nandez grant in Butte County, brought out interesting and important facts about the ownership of minerals in California, whether within or outside of ranchos.12 Upon the separation of Mexico from Spain, the California Supreme Court found, the mines of gold and silver, which until that time had been vested in the Spanish crown, passed to and became vested in the Mexican na- tion. Under Mexican law, no interest in the minerals of gold and silver passed by a land grant from the govern- ment unless expressly so designated. Under Mexican mining ordinances, however, such government-owned minerals could pass to an individual through his registry
1ª 17 Cal. 200, Moore v. Smaw and Fremont v. Flower.
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Titles in El Dorado
of discovery, or by proceedings upon "denouncement" when a mine once discovered and registered had been abandoned and forfeited. The mining laws of Mexico, during the time California was Mexican, were in part like those adopted by the United States and no doubt influenced their adoption. They were seldom used in Mexican California for there was little interest in min- ing. Gold and silver (as well as quicksilver)-the "precious metals"-owned by the Mexican nation, passed by ces- sion, under the Treaty of Guadalupe Hidalgo, to the United States. The United States became the owner, but not in trust for the future state of California. Accord- ingly, a patent from the United States, issued in confirma- tion of a former Mexican land grant, invests the patentee with the ownership of the precious metals which the land may contain. This is true even though it gives the patentee more than he or his predecessor received under the Mexi- can grant. Today it is established law that such a United States patent issued without exceptions or reservations conveys the full title to the land including minerals and mineral rights.13
A quicksilver mine near San Jose that had been oper- ated during the Mexican period-and that for long years thereafter continued to furnish mercury required in Cali- fornia gold mining-was the subject of a celebrated and long-drawn-out case heard before the United States Land Commission and the District and Supreme Courts. This mine was the New Almaden, named after the famous quicksilver mine in Spain. Andrés Castillero, owner of Santa Cruz Island, had acquired it under Mexican laws in 1845, through discovery and denouncement. Castillero claimed before the Land Commission not only the mine,
13 40 Corpus Juris, 759.
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Land in California
but a grant of land around its mouth. There were two other claimants to grants that also included the mine. Castillero and his lessee, the New Almaden Company-a British concern-finally lost out, though receiving partial payment in compensation, to the Philadelphia Quick- silver Company holding under another grant. This result is usually pointed to, and perhaps justly, as a glaring ex- ample of injustice and sharp practice on the part of the United States government which simply wished to wrest this important mine from British hands.14
Today when a man locates, claims, and develops a mine on public land he follows the rules and regulations that bearded miners of the Sierra Nevada adopted one hundred years ago. Those pioneers of 1849 and the 'fifties long ago left to prospect for "outcroppings of gold in the stars," as Joaquin Miller phrased it, but they left a heri- tage of common sense and good titles for today's miners.
14 Gregory Yale, Legal Titles to Mining Claims (San Francisco, 1867), PP. 333-337; also John Walton Caughey, California (New York, 1940), P. 373.
CHAPTER XI
Land Grants to Railroads
"THE LAST RAIL is laid, the last spike is driven. The Pa- cific Railroad is finished."
So read the telegram sent President Grant on May 10, 1869, after a gold spike had been driven by Leland Stan- ford into a railroad tie, made of California laurel, at Promontory in northern Utah. This ceremony was in celebration of the meeting there, actually several days before, of the Central Pacific, which had been building east from Sacramento in California, with the Union Pacific which had been building west from Omaha in Nebraska. One thousand people were present on this occasion which heralded the completion of America's first transcontinental railroad. A new era opened for Cal- ifornia and the West.
The building of this long-hoped-for, long-planned rail- road and of the railroads that followed was made possible by federal aid in the form of subsidy to railroad com- panies in lands and bonds.
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Promotion of railroad construction through federal grant of land from the public domain, or through the proceeds of the sale of such land, was a well-established government policy. It had antecedents in the grants of land for wagon roads and canals in the eastern part of the United States before the days of railroads. It originated in the enabling Act of April 30, 1802, which provided that one-twentieth part of the net proceeds from the sale by Congress of public lands in Ohio should be given to Ohio for the laying out of roads from navigable waters empty- ing into the Atlantic to the Ohio River. As early as 1823 Ohio was granted a right of way for a wagon road 120-feet wide, along with the equivalent of two strips of land a mile in width, one on each side of the projected road to be con- structed from Lake Erie to the western boundary of the Connecticut Western Reserve. Lands were to be sold by Ohio for not less than $1.25 an acre. In 1827 Indiana was authorized to locate a canal to connect the Wabash River and Lake Erie with a grant of land equal to one-half of five sections in width, each alternate section being re- served to the United States. The area of a section is, of course, 640 acres. Beginning in 1835 Congress made many grants to railroad companies of rights of way through public lands, together with land for depot sites and ter- minals. In 1850 the grant to the Illinois Central provided for the transfer to the states affected of alternate sections of land for six miles on each side of a line of railroad ex- tending from Illinois to Alabama. These sections were to be sold by the states and the money used by private corporations for the building of a railroad.1
1 Benjamin Horace Hibbard, A History of the Public Land Policies (New York, 1924); Thomas Donaldson, The Public Domain (Washington, D.C., 1884); Daniel M. Greene, Public Land Statutes of the United States (Washington, D.C., 1931).
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Land Grants to Railroads
The first person to propose a transcontinental railroad seems to have been Hartwell Carver of Rochester, New York, who published articles in the New York Courier and Independent in 1832 and memorialized Congress from 1835 to 1839. The western terminus of his proposed railway was to be on the Columbia River-for California was still a Mexican province. Carver, who spent forty years and $23,000 on his dream, received in 1869, as his final reward, a free pass over the railroad that other men built.ª
Many other individuals besides Carver, noteworthy among them being Asa Whitney, worked for a transconti- nental railroad. The discovery of gold in California awakened fresh interest in the subject. It was talked about in Congress, and at the session of 1852-1853 the Secretary of War was authorized to employ engineers to find the most economical and practical route for a railroad to the Pacific from the Mississippi. In the spring of 1853 sur- veys of five possible railroad routes began, and in Febru- ary, 1855, the Secretary of War laid his report before Congress. For several years the railroad question was discussed by Congressmen, and, while they talked, people in increasing numbers were going west the hard way; California, Oregon, Minnesota, and Kansas were acquir- ing statehood; and the southern states were seceding. In the popular mind the proposed Pacific railroad was a military necessity and one required to hold the nation together. The Pacific Coast was defenseless. The overland route to California was beset by dangers and Indians. The commercial aspects were given slight consideration.
Finally, in 1862, Congress passed a bill, effective July 1, "to aid in the construction of a railroad and telegraph
2 Bancroft, History of California, VII.
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line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military and other purposes." It was under the Congres- sional Act of July 1, 1862, as amended July 2, 1864, that the first transcontinental railroad was actually built-the ceremony of the driving of the golden spike on May 10, 1869, at Promontory, Utah, being the announcement to the country of successful accomplishment.
Hitherto, in the railroad grants, the states had been used as trustees and agents. The Act of 1862, called the Pacific Railroad Bill, provided a departure from estab- lished methods, for it empowered the Union Pacific Railroad Company and the Central Pacific Railroad Com- pany of California to lay out, locate, construct, and main- tain a railroad and telegraph line and to be the recipients of land grants. The Union Pacific was authorized to build the road from Nebraska to the western boundary of Ne- vada, and the Central Pacific was to build from the Pa- cific Coast, at or near San Francisco, or the navigable waters of the Sacramento River, to the eastern boundary of California. Each company, however, was authorized to continue construction until it met the other, whether at or beyond the California boundary line.
Each company, under the Act of 1862, as amended in 1864, was granted a right of way 200 feet in width on each side of the railroad-400 feet in all. In addition each received necessary grounds for stations, buildings, shops, depots, switches, sidetracks and turntables, together with the right to take from adjacent public lands earth, stone, timber, and other materials for construction pur- poses. The United States agreed to extinguish Indian titles where they conflicted with railroad titles. Further- more, as an aid in the construction of the railroad and
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Land Grants to Railroads
telegraph line and to secure the transportation of mail, troops, and munitions, each company was granted every alternate section of public land, designated by odd num- bers, to the amount of ten alternate sections per mile on each side of the railroad and within the limits of twenty miles on each side. The railroad act specified that it did not apply to lands sold, reserved, or otherwise disposed of by the United States, or to which a preemption or homestead claim may have attached at the time the line of the road was definitely fixed. Excepted from the grant, too, were "all mineral lands," though this was not to be construed as referring to coal and iron land. Granted lands unsold or undisposed of by the company within three years after completion of the railroad were to be open to settlement and preëmption, like other lands, at $1.25 per acre to be paid the company. With the comple- tion of each forty consecutive miles of railroad and tele- graph line, the United States was to issue to the company patents-that is, official conveyances-of the lands on each side of the completed road. A map of the general route was to be filed by the company with the Department of the Interior within two years, whereupon lands within twenty-five miles of the route were to be withdrawn by the Secretary of the Interior from preemption, private entry, and sale.
To sum up: each of the two railroad companies secured a right of way 400 feet wide, the necessary depot sites, shops, and so on, and each received odd-numbered alter- nate sections of land to the amount of twenty sections per mile. Since each regular government section contained 640 acres, the acreage granted per mile was, in theory, 12,800 acres. Under the original act, the land grant, so far as California was concerned, was of little value, for only
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200,000 acres of arable land could be obtained between Sacramento and the Nevada line. Hence the amendments of 1864, which gave the Central Pacific twenty sections per mile instead of the original ten and clarified the min- eral land exception.ª The land included within the right of way itself, it should be added, was not granted the rail- road in absolute ownership, the railroad company's title being a limited fee, with a reversionary right remaining in the United States. (Later, after the Act of March 3, 1875, the right of way grants conveyed an easement only, with forfeiture for non-use.)
Of course, the federal subsidies of land were only part of the help given. The national government practically guaranteed a part of the bonded debt of the companies. Each company was allowed to issue first mortgage bonds on its railroad and telegraph line to the amount of the bonds issued by the United States to the company, the government subordinating its lien. These first mortgage bonds could be sold readily at the highest market rates. With the completion of every twenty miles, the govern- ment issued thirty-year bonds-each in the amount of $1,000, bearing interest at 6 per cent-and these totaled $16,000 a mile across the plains and increased to $48,000 per mile through the mountainous country which began less than seven miles from Sacramento. The California Legislature aided the Central Pacific and later railroad companies in many ways, for example, in providing land for terminal facilities, including submerged lands and tidelands. The California counties and municipalities also lent their assistance.
The story of the Central Pacific Railroad Company and of the successful completion of the first transconti-
8 12 Stat. 489; 13 Stat. 356.
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Land Grants to Railroads
nental railroad is, of course, much more than a story of land grants and financial aid. It is, first of all, a story of California men. One of these men was Theodore D. Judah, a construction engineer whose technical knowl- edge and enthusiasm for a Pacific railroad brought about the organization of the Central Pacific and, ultimately, a survey of a route through the Sierra Nevada. His skill as a lobbyist at Washington helped to shape and put through the Pacific Railroad bill. Judah was backed by the capable and extraordinary "Big Four": Collis P. Huntington, Leland Stanford, Charles Crocker, and Mark Hopkins who participated in the organization of the Central Pacific, and took over its control, along with that of the later organized Southern Pacific. These four men built the first transcontinental railroad-a titanic achievement-Huntington acted as financial agent and lobbyist in the eastern states, Stanford did the same work in California, Crocker was superintendent of construc- tion, and Hopkins superintendent of supplies. The "Big Four" not only built a railroad but, expanding north and south, created in California an empire. In this empire the owners of the Southern Pacific dominated the state's eco- nomic and political life well into the twentieth century, though their railroad monopoly was successfully chal- lenged in the late 'eighties by the entry of the Atchison, Topeka, & Santa Fe. The account of these dynamic fig- ures who lived before the days of antitrust legislation, income tax returns, social "awareness" and planned "pub- lic relations," and of how the Southern Pacific demanded subsidies of cities, manipulated freight rates, and con- trolled governments and legislatures, is part of the rail- road story of California and one that has received the attention of reformers and writers.
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Congressional land subsidies for railroads began, as we have seen, in 1862 with the grants to the Central Pa- cific to help it build its share of the transcontinental railroad. There were several later land grants, however, involving a far greater area of the public land of Cali- fornia, but all these later grants followed somewhat the pattern established by the first.
The construction of a railroad and telegraph line through the Sacramento and Shasta valleys to Portland, Oregon, was provided for by the Act of July 25, 1866. Under it the California and Oregon Railroad Company, incorporated in California (later consolidated with the Central Pacific and operated by the Southern Pacific) was to build from a point on the Central Pacific Railroad in the Sacramento Valley to the north boundary of the State of California. Another company, organized in Ore- gon, was to work south from Portland. Each was author- ized to continue construction until it met the other. The right of way granted was 100 feet on each side of the rail- road-making a 200-foot strip-together with necessary depot sites, and so on. In addition, the companies were granted "every alternate section of public land, not min- eral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side)." When any of these sections had already been granted, sold, reserved, occupied by homestead settlers, preëmpted, or otherwise disposed of, the companies were given the right to select other lands in lieu thereof, but these lands had to be alter- nate, odd-numbered sections nearest to and not more than ten miles beyond the zone of the grant. Patents would be issued to the companies whenever twenty or more consecutive miles of railroad had been completed.‘
4 14 Stat. 239; 15 Stat. 80; 16 Stat. 47; 39 Stat. 218; 40 Stat. 593.
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Land Grants to Railroads
Not until December 17, 1887 could a "last spike" cere- mony celebrate a junction completed between the Cali- fornia line and the Oregon line at Ashland, Oregon.
The Act of July 27, 1866, authorized the Atlantic and Pacific Railroad Company to construct a railroad and telegraph line from Missouri to the Pacific Coast, via Albuquerque and the Colorado River, and at the same time empowered the Southern Pacific Railroad to con- nect with the Atlantic and Pacific at such a point near the boundary line of the State of California as they would think suitable for a railroad line to San Francisco. The provisions for the right of way-100 feet wide on each side of the railroad-for the depot sites, and so on, for the grant of alternate sections, and for the "lieu" selections were similar to those in the act that gave the California and Oregon Railroad Company its authority.
The Southern Pacific immediately went ahead with its plans, filed a map of its proposed route with the Depart- ment of the Interior on January 3, 1867, and received Congressional authority on June 28, 1870, to proceed along that route. The articles of incorporation originally had called for a railroad to extend from San Francisco south along the coast to San Diego, thence east. Coast land, however, was mostly rancho land-and therefore not in the public domain. By switching to the central valley, not only would some of the richest agricultural districts in the state be opened up but the railroad could take ad- vantage of the generous land-grant privileges in the Act. The switch was made and the California legislature ap- proved the change of route.
The Atlantic and Pacific never entered California and, in 1886, Congress declared forfeited the lands granted it along the "uncompleted portions of the main line." Years
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Land in California
later the charter of the Atlantic and Pacific Company was bought by the Atchison, Topeka, & Santa Fe which, though blocked by Southern Pacific interests, finally reached Los Angeles and San Diego in 1885.
By the Act of March 3, 1871, the Southern Pacific was authorized to construct a railroad from the Tehachapi Pass, by way of Los Angeles, to meet the Texas Pacific Railroad at or near the Colorado River. It was given all the rights, grants, and privileges of the Act of July 27, 1866. Under this act the city of San Francisco could con- nect with the Texas Pacific."
By the Act of March 3, 1875, Congress granted a right of way through public lands to any railroad company duly organized under the laws of any state or territory or by Congress, to the extent of 100 feet on each side of the central line of the road. There were also granted certain rights to take material for construction purposes, along with ground adjacent to the road for station buildings, etc., not to exceed 20 acres for each station, to the extent of one station for each ten miles of road. To get the benefits of this act, a railroad company had to file a pro- file or map of its road with the district land office, under specified conditions, and to secure its approval by the Secretary of the Interior. Good use of this act was made by the Southern Pacific to relocate part of its line. Part of the original line was then abandoned.®
Congress took care of forfeited or abandoned railroad rights of way and railroad structures by the Act of Febru- ary 25, 1909, and the Act of March 8, 1922. The last- mentioned act provided that when such rights of way or structures were no longer used or occupied for railroad
5 14 Stat. 292; 16 Stat. 382; 16 Stat. 573, 579; 24 Stat. 123.
6 18 Stat. 482; 31 Stat. 815.
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purposes, whether by forfeiture or by abandonment by the railroad company, or by court decrees or by act of Congress, the public lands that had been granted for such purposes became vested-with certain exceptions- in the owners of the land crossed or occupied."
Through federal land grants railroads received title to 11,585,534.28 acres of California land, or about 11.4 per cent of the state's area. In the United States as a whole 9.5 per cent of the public domain went to the railroads. The tabulation of land grants to railroads published in the 1946 Annual Report of the Commissioner of the Gen- eral Land Office gave these totals:
CALIFORNIA
ACRES
Central Pacific (Central Pacific). 978,091.22
Central Pacific (California and Oregon) 3,237,347.16
Central Pacific (Western Pacific) .. 462,130.18 Southern Pacific (Southern Pacific main line) . . 4,656,425.78
Southern Pacific (Southern Pacific branch line) 2,251,539.94
Total California
11,585,534.28
The lands granted to railroads were not outright gifts, for the railroads were required to haul mail and handle government traffic at less than regular charges-a deduc- tion of immense importance to the federal government and the public. The Southern Pacific's own estimate is that by the end of World War II the land-grant rate re- ductions for all railroads in the United States reached a total in excess of one billion dollars, or more than eight times the $123,000,000 value of the lands at the time they were granted to the railroads.º The government bene-
7 35 Stat. 647; 42 Stat. 414.
8 Report of Commissioner of General Land Office, June 30, 1943.
9 Erle Heath, Seventy-Five Years of Progress-Historical Sketch of the Southern Pacific (San Francisco, 1945).
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Land in California
fited, too, in the increase in value of its retained alternate sections, owing to improved transportation. What the railroads received from the sale of lands granted them was only a fraction of the cost of building the railroads. Furthermore, financial subsidies from the government were not gifts but interest-bearing loans-loans that were paid off.10 To get the over-all picture, it should be re- membered that federal land grants were far from provid- ing California with the railroad lines that now connect the cities of the state. Federal grants were applicable only to lands in the "public domain." Lands in Spanish and Mexican ranchos, for example, were unaffected. It was through direct purchase from private owners of land or through condemnation under statutory powers or through state permit when state-owned lands were in- volved-plus the federal grants-that California's vast railroad system was finally built up. In this connection the Southern Pacific and its predecessor corporations were the chief beneficiaries in California of federal land grants. The Santa Fe received land-grant aid in Arizona and New Mexico, but acquired its rights of way in Cali- fornia largely the hard way. The Needles-Mohave line, built by the Southern Pacific through land-grant help, was first leased, then the right of way was bought, by the Santa Fe.11
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