USA > California > Land in California, the story of mission land, ranches, squatters, mining claims, railroad grants, land scrip, homesteads > Part 13
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1 Ivanhoe Mining Co. v. Keystone Mining Co., 102 U.S. 167, 26 L. Ed. 126.
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states should reserve the coal and other minerals when disposing of any of them.
As for the "lieu lands"-those selected by the state be- cause a particular section sixteen or a particular section thirty-six was not available for one reason or another- their selection was made in the same way as the lands in the "500,000 acre grant." The state's list of selected lieu lands would be submitted to the land office, approval se- cured from the commissioner and certification to the state obtained from the Secretary of the Interior. These lists passed title to the state, without any patent from the United States and without regard to whether the lands were or were not mineral.
The sale of school lands made possible the school system of California and their use by purchasers, who received patents issued by the state, helped in the settlement and development of California.
California, it will be recalled, also received a grant of lands, the proceeds of which were to be used for reclama- tion. This was the grant of "swamp and overflowed" lands, and they were to amount to more than two million acres. The state received this grant less than three weeks after its admission into the Union.
The unruly Mississippi River was really responsible for the Act of September 28, 1850, by which California ultimately became the owner of those public lands sub- ject to overflow which, unless assisted by drainage or embankment, could not be put to the profitable raising of crops. In 1849 Congress had passed an act to aid Lou- isiana in draining its swamp land. It met with such favor that in 1850 land classed as "swamp and overflowed" was ceded under the so-called Arkansas Act to other states, California among them.
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Identification of such lands in California and their segregation from other lands through federally approved state surveys or federally made surveys, together with their certification to the state by the Commissioner of the General Land Office, was provided for in a later act of Congress approved July 23, 1866.
Patents to the state were issued upon request of the governor and after approval of survey by the General Land Office, and these conveyed full title to California. Purchasers from the state, in turn, received state patents.
Swamp and overflowed lands conveyed to California totaled 2,192,456.70 acres, according to the report of the Commissioner of the General Land Office to the Secretary of the Interior for the year 1945. Their reclamation in California has been less difficult than with similar lands along the Mississippi River. Most of the California swamp and overflowed lands were free from jungle growth and have been easily drained: for example, lands of this type abutting on the Bay of San Francisco and on the banks of the Sacramento and San Joaquin rivers emp- tying into it, as well as areas in more northerly and southerly parts of the state. There has sometimes arisen, however, the problem of distinguishing swamp land from tideland or of segregating swamp from upland.
Edward F. Treadwell, biographer of Henry Miller, "the cattle king," tells us that Miller, after forming a partnership in 1858 with Charles Lux, began a thirty- year program of land and cattle buying. The purchase of school sections, homestead and preemption rights, bounty warrants, and swamp and overflowed lands all helped to build up a vast land empire in the central val- ley of California. He availed himself generously of the swampy areas, bordering the rivers, that had been granted
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to the state, these being purchasable at $1.25 an acre. Under state law, we are informed by Treadwell, Miller would make proof of his expenditure of the same amount for reclamation of these areas and thus obtain a repay- ment of the purchase price. Ultimately Henry Miller owned a hundred-mile, continuous strip of reclaimed swamp and overflowed land along the San Joaquin River and another fifty-mile strip along the Kern River.
So much, then, for the lands of the public domain which California received by direct grant from the United States in the interests of education and reclama- tion and which California-with little thought of con- servation, of development, or of future income-largely disposed of within twenty years after becoming a state.
Until the precedent-shattering decision of the United States Supreme Court of June 23, 1947, California had considered itself the owner, by reason of its sovereignty, of lands beneath navigable waters within its boundaries. The 1849 constitution described California's area not only as including islands, harbors, and bays, but also as having a western boundary line that was offshore "three English miles." California's civil code, section 670, since 1872 has declared the state to be the owner of "all land below tidewater, and below ordinary high-water mark, bordering upon tidewater within the state" and "all land below the water of a navigable lake or stream." The basis for this claim to lands under navigable waters was that California had been admitted into the Union on an equal footing with the original thirteen states, these latter ac- quiring lands of such character from the Crown of Eng- land and holding them in trust for the public as an incident to their sovereignty.
The Supreme Court in 1947 declined to follow this
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theory of ownership. It did not deny "that California has a qualified ownership of lands under inland navigable waters such as rivers, harbors, and even tidelands down to the low-water mark." It stated, however, that "Cali- fornia is not the owner of the three-mile marginal belt along its coast, and that the Federal Government rather than the state has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil."
These oil-rich lands under navigable waters were, ad- mittedly, the motivating force in the suit against the State of California that was brought-after the lapse of nearly a hundred years-by the United States.
As a result of California's assumption since 1850 that it was the owner of lands under navigable waters within its boundaries, whether inland or along the coast, an as- sumption that apparently had been backed by court de- cisions and acquiesced in by the United States, it had proceeded to use or dispose of some of these lands-sub- ject, of course, to the public rights of navigation, com- merce, and fishery.
Although forbidden under its constitution of 1879 from granting tidelands within two miles of any incor- porated city or town and fronting on the waters of any harbor, estuary, bay or inlet, used for navigation, Cali- fornia did make, through its legislature, numerous grants to coastal municipalities or counties of tide and sub- merged lands lying in the Pacific Ocean or in entrances to bays, harbors, and rivers along the California coast, many of them extending three miles from shore. Ex- amples are grants to Eureka, Santa Cruz, San Mateo County, Orange County, Monterey, San Diego, Long Beach, Los Angeles, Santa Barbara, and the Carmel Sani-
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tary District. City authorities, under such legislative grants, developed harbors and made vast expenditures for improvements. Long Beach, for example, built a break- water, its semicircular Rainbow Pier, and a municipal auditorium extending 1,400 feet into the Pacific Ocean and Bay of San Pedro. Begun in October, 1928, the project was completed in November, 1930, at a cost to the city of $1,067,000. In addition, working with the state and the county (of Los Angeles), Long Beach dredged the mouth of Alamitos Bay and put in improvements at a cost of $116,000.
Aside from the making of these grants of land, the State of California, under authority of a legislative act ap- proved May 25, 1921, for a number of years granted per- mits to private individuals or corporations to prospect for oil and gas in tide and submerged lands and also en- tered into oil and gas leases covering such areas. Pursuant to the act and to later amendments, the state entered into leases of submerged land oil areas in the Summerland and Rincon fields in Ventura County and in the Elwood, El Capitan, Carpinteria, and Goleta fields in Santa Barbara County. Further new activity of this sort by the state was stopped May 28, 1929, but under the State Lands Act of 1938 California was given a restricted authority to lease tide and submerged lands containing oil or gas deposits that may be or are being drained by wells on adjacent lands not owned by the state. Drilling under such leases could take place only from upland or shore sites, with slant-drilling into tide and submerged lands.
The Federal Leasing Act of 1920 permits any person to file an application for an oil lease on public lands. Until 1936, the Department of the Interior had rejected such applications so far as California tidelands were concerned.
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When one application of this sort, involving land off Huntington Beach, was then allowed to stand, the lid was off and "claimjumpers"-so called-filed nearly 200 appli- cations in a short time. Some overlapped the areas al- ready leased by the state to operating oil companies. "Let the courts decide" was the federal government's new view. And presently, in October of 1945, after several prelimi- nary skirmishes, a suit was filed in the United States Supreme Court, with the State of California named as the sole defendant.
The United States Supreme Court's startling decision of 1947, involving the ownership and use of immensely valuable lands long claimed by California, also cast a cloud on claims of the nation's coastal and inland states to lands beneath navigable waters within their bound- aries. A specific grant or quitclaim of such lands by Con- gress to the states-now under consideration-would settle one of the greatest state-versus-federal questions that has ever been raised.
In any event the disposition and use that has already been made of these lands, which California considered state-owned by reason of its sovereignty, has played a very large part in the building up of its port cities, the devel- opment of its resources, the expansion of its commerce, and the creation of its prosperity.
Aside from the lands to which California has claimed ownership through specific grants from the United States or by reason of its sovereignty, there are those to which the state acquires title through purchase, condemnation, dedication, gift or other acquisition. To give a few illus- trations: state parks; lands deeded to the state by tax collectors because of owners' failure to pay taxes or assess- ments that have become delinquent; lands that have
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escheated or reverted to the state because of their having been deeded to aliens ineligible to citizenship; and lands described in the civil code as being "property of which there is no other owner." The problems arising out of present-day state ownership are complex and are outside the scope of this book. In passing, it should be mentioned that the California legislature on June 11, 1938, enacted the State Lands Act of 1938, a comprehensive piece of law- making relating to lands owned by the State of California. By it there was created a state lands commission to which was transferred the administration, sale and leasing of state lands. Under the act, deposits of oil and minerals in state-owned land (except land acquired upon sale for de- linquent taxes) were reserved to the state. Therefore, conveyances or patents of such land issued by the state do not transfer oil and minerals-even if they contain no specific reservations. The state, under the act, was al- lowed to lease its lands for oil and gas development but, as already pointed out, no oil derricks could be erected on tide or submerged lands. In 1941 this important act was incorporated within the public resources code.
CHAPTER XV
Buying and Selling California
EVER SINCE there have been men and women in California it seems probable that claims to the occupancy or use of particular land areas have not only been fought over but have been bought and sold.
The more individualistic of California Indians are re- ported to have indulged occasionally in the real estate business even before the white invaders came. That is to say, the rights to use river land that was good for hunting deer or elk, or to use special acorn-gathering areas, fishing places along streams, redwood-plank houses on the Klamath River, or farm lands on the Colorado, were some- times exchanged for strings of dentalium shells, beads, white deerskins, wives, or slaves.
There was apparently little buying or selling of land, whether in or outside of pueblos, during the Spanish period, 1769-1822, or in the early years of the succeeding Mexican period. Ranchos were obtained on petition to
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the governor of California and, if desirable property, usually remained in the family of the first grantee. If not desirable, they were abandoned, with reversion of title, and could be obtained by other petitioners. So, too, pueblo lots, when granted by the ayuntamiento or coun- cil to individual townsmen on petition. Such lots, if aban- doned, could be picked up by other persons through "denouncement" and the issuance to them of official approval of new petitions. The pueblo archives of Los Angeles, for example, are full of such petitions and de- nouncements. The earliest is that of José Antonio Car- rillo who, on June 22, 1821, asked the comisionado for a house lot in Los Angeles on the site of the present-day hotel known as The Pico House. It was near the plaza church then being built. Carrillo received his grant next day.
Enough has been said in other chapters about early California procedure in obtaining ranchos through peti- tion to the governor. The method of getting title to lots in pueblos is well illustrated by the petition and the grant through which William Richardson became the first owner, in 1836, of a lot in Yerba Buena, predecessor of present-day San Francisco. The grant appears, in trans- lation, in the addenda to John W. Dwinelle's The Colo- nial History of San Francisco:
Most Illustrious Ayuntamiento:
William Richardson, a citizen and resident of this Port, in due form represents that he is resolved to establish himself in Yerba Buena, and for that effect requires to build a house, for which he applies to your Superiority, by using your facul- ties to deign to grant him a lot of one hundred varas square, in Yerba Buena, in front of the Plaza and anchorage of the ships.
For which effect I request that you will deign to grant this
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my petition, which is on common paper, there being no stamp as corresponds.
SAN FRANCISCO, June 1, 1836.
(Signed)
WM. RICHARDSON.
This Corporation being satisfied of the good services that the party requesting has rendered to this jurisdiction since his arrival in this country, with his different trades as brick- layer, surgeon and carpenter, and having married one of the first in the country, and that the said party has resolved to follow his good conduct, this Corporation has concluded to grant to Mr. William Richardson the lot of one hundred varas square, which he requests in Yerba Buena, so that he may establish himself there with his family.
Date as above.
JOSÉ JOAQUIN CARRILLO Alcalde Constitutional.
The buying and selling of ranchos and of pueblo prop- erty was under way by the early 1830's. Property had become valuable in certain areas,-for example, land fronting on plazas. To put through a real estate deal, the buyer and the seller, with witnesses, went before an alcalde or a justice of the peace-these officers having the powers of notary. It was somewhat like "going into escrow" today. The deed was drawn up by the alcalde or justice of the peace. It was that officer's certified statement of all the facts about the conveyance, including the names of parties, the words of conveyance, a description of the property being conveyed, the consideration passing, and the warranties involved. He signed it, so did the witnesses and also the grantor-if the grantor knew how to write. If the consideration-say a certain number of barrels of brandy-could not be turned over immediately, another individual might be named responsible for full compli- ance of the terms. This individual, along with the certify-
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ing officer, had duties that remind us of a present-day "escrow agent." The original deed would remain-as under the Torrens system of land registration-in the alcalde's files, a certified copy being available to the pur- chaser. The completion of the deal included the reading aloud of the document to the persons present.1
The almost complete absence of professional surveyors in Spanish and Mexican California resulted in the use of vague or haphazard descriptions when conveying land. For ranchos, natural boundaries-a stream, the ocean, a sycamore tree, a road, a willow grove-were the best that could be expected. More often a rancho would be de- scribed vaguely like this: "the place known by the name of Las Salinas, with the Potrero Viejo, bounded by the Mission of San Francisco, the sea, and the lands of La Visitacion"; or "the tract within this vicinity called Corral Viejo del Rincon"; or "the place being vacant which is known by the name of San José, distant some six leagues, more or less, from the Ex-Mission of San Gabriel, a map of which place we will lay before your Excellency as soon as possible." For pueblo lots a reference to the neighbors on each side of the particular parcel was considered suffi- cient for identification. As an example, note how Ramon Orduno described a piece of property in Los Angeles which he deeded to Abel Stearns on December 22, 1834: "A lot 40 varas square and a house situate thereon which has 3 rooms half in ruins and a kitchen and is situated between the house of the widow Rita Villa on the west and the gulch on the east and the roads on the north and south."
1 For full copy of a Mexican deed executed in 1841 and involving the sale of a Los Angeles city lot, see Historical Society of Southern California, The Quarterly (December, 1945).
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There were at least two professional surveyors who did their bit toward helping California enter into the real estate business during the Mexican period. One was Jean Jacques Vioget, Swiss sailor and surveyor, who came to California in 1837. He made the first survey and map of Yerba Buena, in 1839, and from that date on his survey was used in the buying and selling of town lots. His sur- vey in 1841 of New Helvetia for John Sutter, the first made of the Sacramento region, was so good that historian Bancroft thought it worthy of reproduction. The other surveyor was Jasper O'Farrell, for whom a street in San Francisco was named. He was an Irishman who came to California in 1843, made San Rafael his home, and occu- pied himself with making surveys of ranchos. He also mapped San Francisco in 1847, going far beyond the limits of the Vioget survey, and showing street names, an important step forward in making town lots merchant- able. In southern California, under the name of "Don Gaspar Farrel," he handled the important partition, in 1846, of San José Rancho (Pomona Valley), between the three owners, Ricardo Vejar, Henry Dalton, and Ygnacio Palomares.
Ordinarily, however, surveying in early California was on a strictly amateur basis. Town lots did not absolutely require surveying and, for ranchos, the overseeing of the job fell frequently to the alcalde of the pueblo having jurisdiction. He would set forth, with or without a sur- veyor but accompanied by two chain bearers, all on horse- back. A cord one hundred varas long was used-a vara was about thirty-three inches-and to each end was at- tached a wooden stake. Taking, say a black willow tree, as a starting point, the party would place between the limbs dry sticks in the form of a cross. From the willow
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tree they would proceed around the whole of the rancho, measuring hundred-vara lengths, and placing landmarks as they went.
The alcalde, as has been mentioned, was not only a notary, but a receiver and keeper of documents. Not only deeds, but mortgages, bills of sale, leases, powers of at- torney, wills, petitions, and other instruments were in his safekeeping.
The raising of the United States flag at Monterey on July 7, 1846, did not end the Spanish Californian way of buying and selling land, for local government was little disturbed for several years. The forms, rules, and prac- tices of the Mexican government carried on, though sub- ject to the supervision of the American military governor. In fact, Commodore John D. Sloat's proclamation to Cali- fornians in 1846 included these words:
I invite the Judges, Alcaldes, and other civil officers, to exe- cute their functions as heretofore, that the public tranquility may not be disturbed, at least until the Government of the Territory can be more definitely arranged.
Between 1846 and 1850, people in California bought or sold land as they had been doing and the alcalde con- tinued to play his part. Certified copies of many of the deeds executed in this period were later recorded with county recorders under the American recording system.
As a matter of fact, the subdividing of California lands for the purpose of sale did not wait on the importation of American systems of government or practice. There were many Yankees in California already and most of them were real-estate minded. This we have already seen in Yerba Buena. In a nontechnical sense, of course, sub- division is as old as landownership. The division of a selected area into house lots and their assignment to the
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first settlers of San José and Los Angeles was subdivision of a sort. So, too, the allotment to soldiers of parcels in a presidio, or, in later years, to Indian heads of families in an Indian pueblo. The early-day division or partitioning of a rancho or the splitting of a town lot is, informally, a "subdivision." But when real estate began to rise in value in San Francisco in the late 1840's, Thomas O. Larkin and Robert Semple, real-estate-minded gentlemen, bought a tract of rancho land on the Straits of Carquinez from Mariano Vallejo. They planned a town that would rival the growing peninsula city and in 1847 put it on the mar- ket as Benicia. Presently, promoter Semple was on the townsite supervising activities while promoter Larkin- who had been buying and selling land, on speculation, in Monterey, Yerba Buena and elsewhere-was persuading friends, relatives, officers of the American fleet, army men, and prospects in general to invest in "Benicia, the Queen City of the Bay." Then came the discovery of gold-and scrambling for lots at Benicia fell off. To Benicia, how- ever, goes the honor of being California's first hundred- per-cent-promoter-inspired town.
As early as January 8, 1849, the first auction sale of lots at Sacramento was held. The town had been laid out in salable-sized lots by William H. Warner of the United States topographical engineers. The same year saw the survey of Stockton, founded earlier as Tuleburg.
Los Angeles, needing revenue, was eager to engage in the real estate business and to sell some of the land within its four square leagues. But it was unable to get under way until late in 1849, a decade or more after Yerba Buena's entry into the real estate field. The pueblo wanted to be subdivided but had no surveyor who could map the place. The military governor had ordered that
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sales of unappropriated pueblo lands should be by refer- ence to a city map. The distressed ayuntamiento peti- tioned the Superior Territorial Government and was assigned Lieutenant E. O. C. Ord of the United States Army. Ord agreed to do the job for $3,000. Ord's Survey, Los Angeles' first, was formally turned over to the city on September 19, 1849. In November, following, the first auction of city lots was held, with $2,490 in cash realized. Many auctions were held later, and Los Angeles showed itself as careless of its patrimony in land as the United States was with its public domain.
There was a flurry of lot selling at La Playa and Old Town (San Diego) in 1849, but the next year the specu- lators obtained a grant of land south of the pueblo and laid out New San Diego. This new town was destined to stand still, however, until the coming of dynamic Alonzo Erastus Horton in 1867 when the modern city really got its start.
When California's first legislature met at San José on December 15, 1849, shortly after the first constitution had been ratified, it proceeded to organize the state govern- ment, it divided California into counties, provided for the incorporation of cities, and-to safeguard the owner- ship of land and facilitate land transfers-adopted the recording system. All these events took place early in 1850, after which California could begin to function exactly as though it were already a part of the Union.
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