USA > California > Land in California, the story of mission land, ranches, squatters, mining claims, railroad grants, land scrip, homesteads > Part 11
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It is apparent that the story of the federal grants to railroads in California is much more than a legalistic recital of Congressional acts and their provisions. An important phase of the story is the clash of railroads with settlers in their path. It will be recalled that railroad companies were given no rights in lands subject to exist-
10 Robert S. Henry, "The Railroad Land Grant Legend in American History Texts," Mississippi Valley Historical Review, September, 1945. 11 James Marshall, Santa Fe (New York, 1945).
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ing preëmption and homestead claims. Since several years might elapse between the grant and the building of the road, or between the establishing of the route and the building, it was inevitable that misunderstandings and differences of opinion should develop, especially in the undeveloped San Joaquin Valley. Add to this the hos- tility toward the Southern Pacific that had been growing during the construction era because the railroad did not always sell its lands at the price stipulated by the govern- ment-and we have the basis for drama as well as law suits. A climactic clash was the pitched battle on May 11, 1880, between settlers and officials seeking to evict the former on behalf of the Southern Pacific, at a place called Mussel Slough near the town of Hanford. California histories give considerable space to the incident-which seems to be the only important armed clash of its kind- and Frank Norris wrote a novel, The Octopus, around the tragic affair. As late as May 12, 1938, a central valley newspaper, The Fresno Bee, thought the story had suf- ficient appeal to recall it in a feature article that carried an interview with a ninety-year-old man who was at Brewer's Ranch, the scene of the shooting, a few minutes after five men had been shot dead, two others fatally wounded, and still another man slightly wounded. The newspaper illustrated its story with a photograph of the oak tree standing on the M. N. Doggett Ranch on the Laton-Grangeville Highway, beneath whose shade the dead and wounded were laid.
The tragedy had been in the making for at least ten years, during which time settlers had been laying irrigat- ing ditches, developing ranches, and building homes on land that finally turned out to be federally granted rail- road property. When the railroad appraisers included the
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improvements in the selling price of the land-ten dollars to forty dollars an acre-the settlers organized. They said they would pay the government-fixed price of $2.50 an acre but denied the right of the Southern Pacific to homes made valuable by years of toil. Suits in ejectment fol- lowed, with decisions favorable to the railroad. The set- tlers, it seems, had on occasion been highhanded, too, and had dispossessed some purchasers of railroad land. The aftermath of the battle was that a few men went to jail for a few months for resisting a United States Marshal and were then welcomed back with acclaim by 3,000 people assembled in Hanford Park. The Southern Pacific, on its part, made concessions to the settlers, reducing their price by 121/2 per cent. From that time on, according to a Tulare County historian, "peace and prosperity pre- vailed."1ª
Most of the clashes between the Southern Pacific and settlers were settled in the courts rather than by physical combat. Some lands were patented to the railroad that were not within the scope of the grant. On the other hand, lands belonging properly to the railroad were patented to claimants under preëmption, homestead, or mining laws. In some instances the railroad sold lands it did not own. Many a settler, too, found it hard to believe that vast vacant territory could be anything but "open" land. Such cases came into the courts and often long years of litigation followed.
If the title story of any parcel of land within a railroad land grant is followed, much of what has been told here will be recapitulated and special features will be added. An example is the 160-acre quarter section legally de-
12 "Brief Sketch of the Early History of Tulare County," Official His- torical Atlas Map of Tulare County (Tulare, Thos. H. Thompson, 1892).
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scribed as "the northeast quarter of Section 15, Township 1 South, Range 12 West, S.B.M.," now a heavily built up Los Angeles County area.13 This land, a part of the public domain, was selected on January 12, 1876, by B. B. Red- ding, Southern Pacific agent, under the Congressional Act of March 3, 1871, on List No. 1. The United States issued its patent to the railroad company in March, 1876. Six years later the company sold and conveyed it to the Lake Vineyard Land and Water Association, with a res- ervation of a 200-foot right of way for the railroad. But, alas for the Southern Pacific, the United States Supreme Court later held the patent itself to be void. This was because the land was within the limits of the grant to the Atlantic and Pacific Railroad Company (by the Act of July 27, 1866), this area not having been restored to the public domain until the passage of the forfeiture Act of 1886. Accordingly, the Southern Pacific had no title to convey. The Lake Vineyard Land and Water Association, however, being a bona fide purchaser from the Southern Pacific, suffered no loss. Its title was confirmed in 1902 through a court action brought by the United States (under Act of Congress approved March 2, 1896, uphold- ing "good faith" buyers of railroad land even though patents had been issued erroneously to the railroad com- panies). The United States, in this particular case, recov- ered from the Southern Pacific the purchase price of the 160-acre parcel with interest at 6 per cent and costs.
Without federal grants of land to railroads there would have been no celebration at Promontory, Utah, in 1869, a celebration that announced the completion of the first
18 Reference is to the "Office Information Relating To Rights Of Way Of Southern Pacific Railroad Company," unpublished MS compiled in 1930 for Title Insurance and Trust Company, Los Angeles, by W. W. Rey- burn and J. Sam Hall.
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transcontinental railroad and the achievement of na- tional unity. With them, there were unloosed the ener- gies of the country and of ambitious individuals. The West was quickly transformed from a wilderness to a place of civilization. For California-in spite of abuses that were by products-the federal land-grant policy to railroads made possible the beginnings of its present de- velopment and helped to speed that development.
CHAPTER XII
Land for Settlers
WHEN CALIFORNIA became a part of the United States the fine trickle of American settlers that had already set in toward the Pacific Coast became a stream and, finally, a flood. Full settlement by the pioneers of California's val- leys and fertile slopes, of its timbered and desert lands, together with the development of the state's varied re- sources, awaited the segregation of all privately claimed lands-the ownership of which dated from the Mexican period-from those that were part of the public domain.
Segregation was a leisurely process. It began in the early 1850's, following the passage of the Act of March 3, 1851. It was accomplished through the activities and de- cisions of the Board of Land Commissioners and of the federal courts to which board decisions were appealed.
Meanwhile, even before the land commissioners got under way with their job, settlers were pouring into Cali- fornia where gold, newly discovered, was the principal lure. Most of the existing pueblos soon were bulging with
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newcomers, young towns were springing up at logical or convenient spots, especially in the gold-mining areas, and ranch and farm land was coming into demand. Settlers could not all wait on boards and courts. With land titles unsettled, there began a long period of uncertainty and conflict, while squatters had a field day wherever there was land that looked good to them.
Within two decades after 1848, however, what was and what was not public land had largely been determined. Thenceforth, if not before, federal laws applicable to the settlement of the public domain governed mining claims, railroad grants, federal townsites, preëmption rights, homesteads, desert, timber culture, and timber and stone entries, military bounty warrants, the use of scrip certifi- cates, as well as forest reserves. Settlers' needs could be met, too, out of those lands granted from the public do- main directly to the state to help California raise money for education and reclamation, as well as through pur- chase of privately owned lands.
Some of the settlers who came with the Gold Rush helped to expand the population of the pueblos of So- noma, San Francisco, San José, Monterey, Santa Barbara, Los Angeles, and San Diego, though the last two were dormant until stimulated by the overflow from the north- ern immigration and the coming of railroads. The title story of California's seven pueblos, so far as it has to do with the land comprised in their original boundaries, is told elsewhere in this book. Land later annexed to these cities had its origin in Spanish or Mexican ranchos or in the public domain and its chain of title is no different from that of similar land outside town limits.
Others of the settlers of the Gold-Rush period helped to start mining camps, inland ports, and centers for farm-
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ing, lumbering, or manufacturing. These places leaped into life as vigorous towns. Later the railroads and rail- road enterprises fathered other California cities.
Many of these hearty pioneer towns, like Sacramento, Stockton, Mariposa, and Anaheim arose on what had been rancho land. The subdividing and selling of such privately owned property, either for the subdividers themselves or for other owners, was not greatly unlike a present-day undertaking in town making, though pioneer subdividers had no restrictions imposed by law on their activities and only such worries as were provided by squat- ters and unsettled land titles.
Many other early-day towns were spawned on public land as "federal townsites," and this calls for special com- ment. As early as 1812 Congress had been lending help to the formal establishment of townsites and the confir- mation of title to the inhabitants. In California, Crescent City, Eureka, and Red Bluff, all born in the early 1850's, were the principal towns to avail themselves of the Town- sites Act of May 23, 1844, which permitted the entry- that is, the placing on record in the proper form and place-of a claim to 320 acres, with provision for the sale of lots under rules and regulations established by the leg- islature of the state. This act, in effect, granted to towns preëmption rights similar to those that had been given individuals in 1841. It had provided that whenever any portion of surveyed public land was settled upon and occupied as a townsite, its authorities (or the judges of the county court, if unincorporated) could enter the land, at the proper land office and at the minimum price, in trust for the townsmen.1
1 O. A. Rouleau, "Public Lands of United States Other Than Those Granted to the States," MS.
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The act was superseded by that of July 1, 1864, provid- ing for the establishment of townsites not exceeding 640 acres on either surveyed or unsurveyed public land. It set forth the kind of plat that was to be filed with the county recorder, the requirement that a transcript be transmitted to the General Land Office, it covered the public sale of town lots, with actual settlers given prior purchase privileges, and it provided for patents to be issued. Petaluma availed itself of the more elaborate method outlined in this act.
Federal townsite requirements were liberalized in 1865, 1867, and 1868, and the state itself designed a pro- cedure for entry, procurement of title and transfer to conform to these liberalized provisions. A large number of California towns took advantage of the newer townsite laws. Among them were sturdy Nevada City, Grass Val- ley, San Rafael, Placerville, San Luis Obispo, Weaver- ville, and Lakeport. In Mendocino County there were two such townsites, one being the Town of Mendocino- under a United States patent issued to J. B. Lamar, county judge of Mendocino County, on November 10, 1868- the other the Town of Point Arena. A few federal town- sites in the San Joaquin Valley are of recent origin.
The rise of towns and cities is only one part of the story of the settlement of California. Not all settlers were townsmen. Many were farmers or ranchers who bought lands in ranchos or within railroad grants or-and this is of present concern-who bought at auction sales for cash, or who filed preemption or homestead claims, or who in other ways "took up" or purchased government land.
Since 1820 the United States had been selling its public domain at auction sales where the minimum price was $1.25 per acre. Later came preëmption and still later
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homesteading, and these methods of acquisition prac- tically supplanted the sales system.
Preëmption was really a preferential right of purchase given actual settlers. Settling on government land with- out permission-squatting-had begun as soon as the Revolutionary War ended and emigrants started west. Out of this practice, and after tremendous pressure had been put on Congress, settlers finally won the legal right of preëmption, the right of settling on and improving unappropriated public lands and, later, of buying them at the minimum price without competition. The Act of September 4, 1841, the outgrowth of earlier legislation, recognized preëmption rights. It provided that preëmp- tion could be initiated by taking possession of land and filing a declaration of intention within thirty days there- after at the local land office. Such government land, in parcels of not more than 160 acres at $1.25 an acre, could be bought free from competitive bids by the head of a family or widow or single person over twenty-one years of age who had filed such a declaration and who under- took to settle, improve, build a dwelling, and pay the purchase price, within a given period, usually twelve months. A certificate of preëmption was issued, and later a United States patent.
Preëmption went west on March 3, 1853, when the Act of 1841 was applied by Congress to lands in California and other western states. There were various and later modifications, with the period of settlement extended to two years. Owing to abuses and fraudulent entries, and to the repeated recommendations of the Commissioner of the General Land Office, all preemption laws were re- pealed March 3, 1891. Between 1853 and 1891, however, many titles in California were acquired and patents issued
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under the preëmption laws. Preëmption, accordingly, did play a part in the settlement of California, in the turn- ing of unused areas into cultivated regions of farms and homes.
A greater part was played, however, by the settlement and cultivation of public lands in California under the homestead laws.
The demand for homesteads, that is, free land for ac- tual settlers, was a natural outgrowth of preemption con- cessions and of earlier leniency toward squatters and gifts to defenders of the frontier. Free land was a hot political issue in the United States from 1825, when Senator Ben- ton of Missouri introduced a bill providing for the dona- tion of certain lands to settlers, until May 20, 1862, when Abraham Lincoln signed the first homestead act. The Free Soil Party in 1848 had put forward a strong home- stead plank in its platform and four years later the Free Soil Democrats were declaring that "all men have a nat- ural right to a portion of the soil" and "that the public lands ... should be granted in limited quantities, free of cost, to landless settlers." The Republican party in 1860 had declared in favor of homesteads. The opposition, stronger in the South than in the North, had seen in home- steading loss of revenue from the public domain, reduc- tion in value of land already in private hands, the encouragement of immigration and emigration, and the crowding out of slavery in new territories.
Under the Homestead Act of 1862 settlers could ac- quire farms of 160 acres from unappropriated public lands free of all charges except a nominal filing fee to be paid when application was made at the proper land office. Five years of residence and cultivation were required of the settler before he would be entitled to a certificate or
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patent from the United States. The privilege of commut- ing also was permitted-that is, of converting the home- stead with a preëmption right and of paying the regular price per acre. The Three Year Homestead Law of June 6, 1912, reduced the five-year period to three years and permitted a five-month leave of absence a year. Failure to establish residence within six months after the date of entry, or abandonment of the land by the settler for more than six months at any time, would result in the reversion of the property to the government.
Enlarged homesteads-320 acres or less, of nonmineral, nonirrigable, unreserved, and unappropriated surveyed public lands not containing merchantable timber-were provided for in a 1909 act which was made applicable to California in 1912. Stock-raising homesteads of 640 acres were provided for in 1916. Ten years earlier, June 11, 1906, provision had been made for the entry under the homestead laws of forest-reserve lands that were chiefly valuable for agriculture and which could be occupied for that purpose without injury to the forest.
Homesteading, of course, means something other than this recital of acts, amendments, definitions, and dates. It means men and women going into new, perhaps forbid- ding, country, overcoming the obstacles of terrain and weather, doing hard physical labor, using intellect, in- genuity, and patience, being self-sufficing, transforming valleys, plains, and hillsides into productive farms, ranches, homesites. It means man against nature, man triumphing over nature.
California settlers made extensive use of the homestead laws. To get land "free" was just what the people wanted. Free land helped to "spread the wealth" quickly and to make possible a landowning, home-owning population.
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From the long-range viewpoint, however, homestead laws were part of an unscientific land policy that resulted in squandering the public domain.
Settlers made use, too, of the timber-culture laws, the theme of which was "plant trees and get land." They were adopted because the demand for timber was rapidly in- creasing whereas the supply was diminishing. The first timber-culture bill became a law March 13, 1873. It pro- vided that a person could obtain title to a quarter sec- tion-160 acres-if he would plant forty acres of it to trees not more than twelve feet apart and would protect and keep them in a healthy growing condition for ten years. Amendments to the first act-culminating in the Act of June 14, 1878-reduced the time for cultivating the tim- ber to eight years, the acreage from forty to ten, and pre- scribed easier specifications for the planting of trees. Timber-culture laws were admittedly a failure. They were easily taken advantage of by speculators, and were used by cattle owners to hold great tracts for range pur- poses. They were repealed March 3, 1891.
The desert-land laws came into being because home- stead laws were ill-adapted to dry lands. A quarter section on a western mountain or on a western desert could hardly be of great use to a settler. Lassen County, Cali- fornia, was used as a guinea pig in a special act for desert- land disposal passed March 3, 1875. This act permitted the entry of a section, 640 acres, by persons who would undertake to conduct water on it for reclamation within two years, in which event they would receive title on pay- ment of the minimum government price. Under the Act of March 3, 1877-the first that was generally applicable to California and the western states-a person could buy a section of desert land by paying twenty-five cents an
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acre and filing a declaration with the proper official that he intended to reclaim the tract by irrigating it within three years. The acreage he could get was later (March 3, 1891) reduced to 320 acres and the time for reclama- tion extended to four years. Desert lands, the law said, were those lands, exclusive of timberlands and mineral lands, which will not produce some agricultural crop without irrigation. Proof to the register and receiver of actual reclamation within the time set, together with pay- ment of the additional sum of one dollar per acre, entitled the person to a patent. The amendments of 1891 specified that three dollars per acre had to be expended for recla- mation and that one-eighth of the land had to be under cultivation before a patent could be issued. Other amend- ments covered necessary extensions of time for making final proof and protective clauses for men in military or naval service. There were, of course, abuses in desert en- tries. Land grabbing was aided. Stockmen, for example, sometimes got hold of desert land, by paying twenty-five cents an acre, only to hold it for several years as range land with no effort at reclamation. Between March 3, 1877, and June 30, 1947, desert-land entries had been made in California on 1,079,152 acres.
The government found still other ways of disposing of the public domain to settlers in California. Under the Act of June 3, 1878-the Timber and Stone Act-unoccupied, unimproved, surveyed, nonmineral public lands that were valuable chiefly for timber or for stone, but unfit for cultivation and, therefore, unfit for disposal under pre- emption or homestead laws, could be sold in quantities not exceeding 160 acres at the minimum price of $2.50 an acre. The purpose of the act, to stop timber depredations and to aid settlers and miners, was not accomplished.
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Great tracts of forest lands in California were obtained fraudulently by lumber companies under this Timber and Stone Act. Far-sighted but unscrupulous lumber operators "employed cruisers, who went over and deter- mined the value of the various legal subdivisions contain- ing heavy stands of timber. They allowed the public to know that they would purchase timber land from any who might enter it under the Timber and Stone Act. In some cases they imported shiploads and carloads of their em- ployees and other persons, furnishing them with the neces- sary funds to buy. These persons entered valuable contiguous quarter sections, and transferred them whole- sale to their principals. A specific instance is that in Modoc County, California, where more than 85 per cent of about 25,000 acres of timberland entered in one cal- endar year was transferred before May 1, as was shown by a search in the recorder's office of the county. More than 14,000 acres of this went to one man, and the bulk of the rest to three others.""
Final timber and stone entries in California totaled 2,899,214 acres on June 30, 1945.
An "isolated" or "disconnected tract" of the public domain, not exceeding 320 acres, could be ordered into market by the Secretary of the Interior and sold at public auction in the land office of the district under an act ap- proved March 9, 1928. The price could be not less than $1.25 an acre. So, too, "rough or mountainous lands," not exceeding 160 acres, were to be sold upon application of any person owning adjoining lands.
The use in California of government-issued military bounty land warrants and land scrip of various kinds
2 From the Report of the National Conservation Commission, made in 1909 and referred to by Benjamin Horace Hibbard in A History of the Public Land Policies (New York, 1924).
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helped settle the state and is an interesting part of the title story-one reserved for another chapter. So, too, that part of the story that has to do with land granted directly to the state and by it to individuals.
Not all of the public domain in California, however, was given away or offered for sale to settlers. Part of it eventually became forest reserves, or, as they are now called, national forests. Their creation in California came as a result of a state and national agitation for conserva- tion and the preservation and supervision of forests. The first report of the California State Board of Forestry tells of the destructive effect on mountains and valleys of uncontrolled fires and floods, unrestrained timbering, and unlimited pasturing by sheep and cattle. It contained Chairman Abbott Kinney's recommendation that "the necessity of the hour is an intelligent supervision of the forest land and brush lands of California, with a view to their preservation in such proportion to the other lands of the state as scientific forestry may demonstrate to be necessary to the welfare of the commonwealth." The national movement was activated by John Muir's maga- zine articles and by the American Forestry Association in 1889 calling for a Congressional investigation of the country's forest resources. Congress responded on March 3, 1891, by providing: "That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations; and the President shall, by public proclamation, declare the establishment of such
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