USA > California > Land in California, the story of mission land, ranches, squatters, mining claims, railroad grants, land scrip, homesteads > Part 17
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Secretary.
Duties.
SEC. 2. And be it further enacted, That a secretary, skilled in the Spanish and English languages, shall be appointed by the said commissioners, whose duty it shall be to act as interpreter, and to keep a record of the proceedings of the board in a bound book, to be filed in the office of the Secretary of the Interior on the termina- tion of the commission.
Clerks.
SEC. 3. And be it further enacted, That such clerks, not to exceed five in number, as may be necessary, shall be appointed by the said commissioners.
Agent for United States.
Duties.
Ante, p. 616. Compensation.
Duties.
Notice of taking of depositions to be given to such agent.
SEC. 4. And be it further enacted, That it shall be law- ful for the President of the United States to appoint an agent learned in the law, and skilled in the Spanish and English languages, whose special duty it shall be to superintend the interests of the United States in the premises, to continue him in such agency as long as the public interest may, in the judgment of the President, require his continuance, and to allow him such compen- sation as the President shall deem reasonable. It shall be the duty of the said agent to attend the meetings of the board, to collect testimony in behalf of the United States, and to attend on all occasions when the claimant, in any case before the board, shall take depositions; and no deposition taken by or in behalf of any such claimant shall be read in evidence in any case, whether before the commissioners, or before the District or Supreme Court of the United States, unless notice of the time and place of taking the same shall have been given in writing to said agent, or to the district attorney of the proper dis-
1 The text is from the U. S. Statutes at Large, vol. 9, p. 631.
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trict, so long before the time of taking the deposition as to enable him to be present at the time and place of taking the same, and like notice shall be given of the time and place of taking any deposition on the part of the United States.
Sessions of commissioners.
SEC. 5. And be it further enacted, That the said com- missioners shall hold their sessions at such times and places as the President of the United States shall direct, of which they shall give due and public notice; and the marshal of the district in which the board is sitting shall appoint a deputy, whose duty it shall be to attend upon the said board, and who shall receive the same compensa- tion as is allowed to the marshal for his attendance upon the District Court.
Deputy marshal.
Pay.
Oaths to be admin- istered, and testi- mony taken in writing and recorded.
SEC. 6. And be it further enacted, That the said com- missioners, when sitting as a board, and each commis- sioner at his chambers, shall be, and are, and is hereby, authorized to administer oaths, and to examine witnesses in any case pending before the commissioners, that all such testimony shall be taken in writing, and shall be recorded and preserved in bound books to be provided for that purpose.
Subpænas.
SEC. 7. And be it further enacted, That the secretary of the board shall be, and he is hereby, authorized and required, on the application of the law agent or district attorney of the United States, or of any claimant or his counsel, to issue writs of subpæna commanding the attendance of a witness or witnesses before the said board or any commissioner.
Claimants of land to present their claims.
Proceedings thereon.
SEC. 8. And be it further enacted, That each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican gov- ernment, shall present the same to the said commis- sioners when sitting as a board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims; and it shall be the duty of the commissioners, when the case is ready for hearing, to proceed promptly to examine the same upon such evidence, and upon the evidence pro- duced in behalf of the United States, and to decide upon the validity of the said claim, and, within thirty days after such decision is rendered, to certify the same, with the reasons on which it is founded, to the district at- torney of the United States in and for the district in which such decision shall be rendered.
Petitions to District Court. Proceedings therein.
SEC. 9. And be it further enacted, That in all cases of the rejection or confirmation of any claim by the board of commissioners, it shall and may be lawful for the
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Appendix III
Form of petition.
claimant or the district attorney, in behalf of the United States, to present a petition to the District Court of the district in which the land claimed is situated, praying the said court to review the decision of the said commis- sioners, and to decide on the validity of such claim; and such petition, if presented by the claimant, shall set forth fully the nature of the claim and the names of the original and present claimants, and shall contain a de- raignment of the claimant's title, together with a tran- script of the report of the board of commissioners, and of the documentary evidence and testimony of the wit- nesses on which it was founded; and such petition, if presented by the district attorney in behalf of the United States, shall be accompanied by a transcript of the report of the board of commissioners, and of the papers and evidence on which it was founded, and shall fully and distinctly set forth the grounds on which the said claim is alleged to be invalid, a copy of which petition, if the same shall be presented by a claimant, shall be served on the district attorney of the United States, and, if pre- sented in behalf of the United States, shall be served on the claimant or his attorney; and the party upon whom such service shall be made shall be bound to answer the same within a time to be prescribed by the judge of the District Court; and the answer of the claimant to such petition shall set forth fully the nature of the claim, and the names of the original and present claimants, and shall contain a deraignment of the claimant's title; and the answer of the district attorney in behalf of the United States shall fully and distinctly set forth the grounds on which the said claim is alleged to be invalid, copies of which answers shall be served upon the adverse party thirty days before the meeting of the court, and there- upon, at the first term of the court thereafter, the said case shall stand for trial, unless, on cause shown, the same shall be continued by the court.
Answers to petitions.
Proceedings thereon.
Appeal to Supreme Court.
Security for costs.
SEC. 10. And be it further enacted, That the District Court shall proceed to render judgment upon the plead- ings and evidence in the case, and upon such further evidence as may be taken by order of the said court, and shall, on application of the party against whom judg- ment is rendered, grant an appeal to the Supreme Court of the United States, on such security for costs in the .District and Supreme Court, in case the judgment of the District Court shall be affirmed, as the said court shall prescribe; and if the court shall be satisfied that the party desiring to appeal is unable to give such security, the appeal may be allowed without security.
256
On what principles commissioners are to act.
. Proceedings to authorize petition to District Court.
All lands in Cali- fornia to which claims are not established to be taken as public lands.
Patent to issue for lands, claims to which are con- firmed.
Location and survey of claims.
1831, ch. 116. Provision where a claim is contested by some other person.
Appendix III
SEC. 11. And be it further enacted, That the comis- sioners herein-provided for, and the District and Su- preme Courts, in deciding on the validity of any claim brought before them under the provisions of this act, shall be governed by the treaty of Guadaloupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the prin- ciples of equity, and the decisions of the Supreme Court of the United States, so far as they are applicable.
SEC. 12. And be it further enacted, That to entitle either party to a review of the proceedings and decision of the commissioners hereinbefore provided for, notice of the intention of such party to file a petition to the District Court shall be entered on the journal or record of proceedings of the commissioners within sixty days after their decision on the claim has been made and notified to the parties, and such petition shall be filed in the District Court within six months after such de- cision has been rendered.
SEC. 13. And be in further enacted, That all lands, the claims to which have been finally rejected by the com- missioners in manner herein provided, or which shall be finally decided to be invalid by the District or Su- preme Court, and all lands the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held, and considered as part of the public domain of the United States; and for all claims finally confirmed by the said commissioners, or by the said District or Supreme Court, a patent shall issue to the claimant upon his presenting to the general land office an au- thentic certificate of such confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor-general of California, whose duty it shall be to cause all private claims which shall be finally con- firmed to be accurately surveyed, and to furnish plats of the same; and in the location of the said claims, the said surveyor-general shall have the same power and authority as are conferred on the register of the land office and receiver of the public moneys of Louisiana, by the sixth section of the act "to create the office of sur- veyor of the public lands for the State of Louisiana," approved third March, one thousand eight hundred and thirty-one: Provided, always, That if the title of the claimant to such lands shall be contested by any other person, it shall and may be lawful for such person to present a petition to the district judge of the United States for the district in which the lands are situated,
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Appendix III
Injunction in such case.
plainly and distinctly setting forth his title thereto, and praying the said judge to hear and determine the same, a copy of which petition shall be served upon the adverse party thirty days before the time appointed for hearing the same. And provided, further, That it shall and may be lawful for the district judge of the United States, upon the hearing of such petition, to grant an injunction to restrain the party at whose instance the claim to the said lands has been confirmed, from suing out a patent for the same, until the title thereto shall have been finally decided, a copy of which order shall be transmit- ted to the commissioner of the general land office, and thereupon no patent shall issue until such decision shall be made, or until sufficient time shall, in the opinion of the said judge, have been allowed for obtaining the same; and thereafter the said injunction shall be dissolved.
This act not to extend to certain lots.
Provision for the case of such lots.
SEC. 14. And be in further enacted, That the provi- sions of this act shall not extend to any town lot, farm lot, or pasture lot, held under a grant from any corpo- ration or town to which lands may have been granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, nor to any city, or town, or village lot, which city, town, or vil- lage existed on the seventh day of July, eighteen hun- dred and forty-six; but the claim for the same shall be presented by the corporate authorities of the said town, or where the land on which the said city, town, or village was originally granted to an individual, the claim shall be presented by or in the name of such individual, and the fact of the existence of the said city, town, or village on the said seventh July, eighteen hundred and forty-six, being duly proved, shall be prima facie evidence of a grant to such corporation, or to the individual under whom the said lotholders claim; and where any city, town, or village shall be in existence at the time of pass- ing this act, the claim for the land embraced within the limits of the same may be made by the corporate au- thority of the said city, town, or village.
Proceedings to be conclusive only as between U. S. and the claimants.
Report on tenure of mission lands and those held by certain Indians.
SEC. 15. And be in further enacted, That the final de- crees rendered by the said commissioners, or by the Dis- trict or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.
SEC. 16. And be in further enacted, That it shall be the duty of the commissioners herein provided for to ascertain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those
258
Appendix III
held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians.
Compensation. Commissioners.
Secretary.
Clerks.
SEC. 17. And be it further enacted, That each commis- sioner appointed under this act shall be allowed and paid at the rate of six thousand dollars per annum; that the secretary of the commissioners shall be allowed and paid at the rate of four thousand dollars per annum; and the clerks herein provided for shall be allowed and paid at the rate of one thousand five hundred dollars per annum; the aforesaid salaries to commence from the day of the notification by the commissioners of the first meeting of the board.
Secretary to receive no fees except in certain cases.
SEC. 18. And be it further enacted, That the secretary of the board shall receive no fee except for furnishing certified copies of any paper or record, and for issuing writs of subpæna. For furnishing certified copies of any paper or record, he shall receive twenty cents for every hundred words, and for issuing writs of subpæna, fifty cents for each witness; which fees shall be equally di- vided between the said secretary and the assistant clerk. APPROVED, March 3, 1851.
Bibliography
LAND TENURE AND LAND CLAIMS OF INDIANS
THE GENERAL subject of land tenure among the American Indians is discussed in Handbook of American Indians North of Mexico, Bulletin 30, Smithsonian Institution, Bureau of American Ethnology, Washington, D.C. (1907-1910), edited by Frederick Webb Hodge. For a specific account of the ideas upon real property ownership that prevailed among the vari- ous tribes and groups of California Indians, consult Hand- book of the Indians of California (1925), by A. L. Kroeber. S. F. Cook's The Conflict Between The California Indian and White Civilization (1943), an analysis of the tragic extermina- tion of a race, also has a bearing on the subject of land titles.
Indian Land Cessions in the United States, by Charles C. Royce (in the 18th Annual Report of the American Institute of Ethnology) contains a year-by-year account of what lands the Indians of California gave up to the United States and what were set aside for them between 1851 and 1894. Daniel M. Greene's Public Land Statutes of the United States (1931) continues the listing of cessions to 1931. See also the subject of "Indians" in the United States Code.
William Carey Jones' report on land titles, in Senate Ex. Doc. No. 18, 31st Cong., 1st sess., 1850, and The Colonial His- tory of San Francisco by John W. Dwinelle (1863), have in- formation on the provisions in Spanish law relating to Indian rights in land and to Indian pueblos. So, too, Land Commis- sion Case No. 3, involving Archibald Ritchie's claim to Rancho Suisun granted in 1842 to an Indian, Francisco So- lano, which reviews Indian rights to own land in California.
Joseph J. Hills' The History of Warner's Ranch And Its Environs (1927) tells the story of the struggle of one Indian group to hold title to its land. History and Proposed Settle- ment Claims of California Indians by Robert W. Kenny, Attorney General of California (1944), is an important com- pilation. For a summary of the bewildering multiplicity of present-day laws governing Indians in the United States, see Felix S. Cohen's Handbook of Federal Indian Law (1945).
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260
Bibliography
Annual reports of the Commissioner of Indian Affairs should be consulted. C. E. Kelsey's Report of the Special Agent for California to the Commissioner of Indian Affairs, March 21, 1906, is a first-hand account of land allotments, community ownership, and reservations. Warren K. Moorhead's The American Indian in the United States (1914) has pertinent data, along with John Collier's The Indian of the Americas (1947). Frances E. Watkins tells the story of the Sequoya League in The Quarterly of the Historical Society of Southern California for June-September, 1944.
The unhappy story of the California Indians, with indirect bearing on the subject of their title to land, has been told by many writers from Benjamin Davis Wilson, in his "Report as United States Indian Agent, Southern District, 1853," printed later in the Los Angeles Star, and J. Ross Browne, who was appointed Inspector of Indian Affairs on the Pacific Coast in 1855, down to the present time. Important material appears, of course, in Hubert Howe Bancroft's History of California and The Native Races, as well as in the works of Helen Hunt Jackson, Abbot Kinney, and Charles F. Lummis.
MISSION TITLES
Books about the missions of California are many, but they go little into titles or claims to land. For this latter, the report of William Carey Jones in Senate Ex. Doc. No. 18 (1850) should be read, along with the proceedings in Land Com- mission Case No. 609 involving the claim of Archbishop Alemany on behalf of the Church (District Court Cases Nos. 425, N.D., and 388, S.D.), together with John W. Dwinelle's The Colonial History of San Francisco (1863), as well as Hubert Howe Bancroft's History of California and Theodore H. Hittell's History of California. All of these sources and histories consider the nature of mission titles under Spanish law. See, too, the comment and rulings of the California Su- preme Court during its October term, 1856, in the case of Nobili v. Redman (6 Cal. 325). The story of secularization and of the later disposition of mission lands is to be found in Dwinelle, Bancroft, Hittell, and in H. W. Halleck's report in House Ex. Doc. No. 17 (1850). A good source, too, is Vol-
261
Bibliography
ume 12 of Henry E. Wills' California Titles, collected pam- phlet material on deposit in the Huntington Library, San Marino. Another useful source is Charles Anthony (Zephyrin) Engelhardt's The Missions and Missionaries of California (1908-1915), together with his individual histories of the missions.
PRESIDIO AND PUEBLO TITLES
Information about presidio and pueblo titles, like mission titles, can be found both in histories and in the proceedings of law courts. A most satisfactory reference on the subject is the much thumbed The Colonial History of San Francisco (1863) by John W. Dwinelle. It carries, in Spanish and Eng- lish, those Spanish laws-from the Laws of the Indies-which assigned four square leagues to each organized pueblo, to- gether with a wealth of basic material about the titles of pre- sidios and pueblos. Along with the case of Hart v. Burnett (15 Cal. 530), it presents San Francisco's claim to a pueblo's four square leagues. The nature of the title held by a pueblo is revealed in that law suit and also in Welch v. Sullivan (8 Cal. 165), San Francisco v. Canavan (42 Cal. 541), and City of Monterey v. Jacks (139 Cal. 542). Land Titles in San Francisco (1860), by "a member of the California Bar," concerned with the Hart v. Burnett and the Holliday v. Frisbie cases, has ex- tracts from the Laws of the Indies and from Mexican law on pueblo titles. The standard histories of California, beginning with Bancroft, also tell something of the title story of pre- sidios and pueblos, as well as much about their beginnings and their development. San Francisco's first days are revealed in several volumes edited or written by Herbert Eugene Bol- ton: Historical Memoirs of New California (1926); Anza's California Expeditions (1930), Outpost of Empire (1931), and Font's Complete Diary (1933). Los Angeles data can be found in Volume XV of the annual publications of the Historical Society of Southern California, commemorating the 150th anniversary (in 1931) of the founding of Los Angeles. See also The History of San José by Frederic Hall (1871). City Council minutes and ordinances are a helpful source. Wil- liam M. Caswell's Revised Charter and Compiled Ordinances and Resolutions of the City of Los Angeles (1878) is especially
262
Bibliography
useful in Los Angeles' title history. Also the Los Angeles City Engineer's map showing territory annexed and data about annexations, together with the explanatory manuscript His- tory of the Formation of the City of Los Angeles by John R. Prince. O. A. Rouleau's "History of Land Titles in San Fran- cisco," an unpublished manuscript, the property of the Title Insurance and Guarantee Company, San Francisco, is an im- · portant compilation.
Translations from the Laws of the Indies are included in Joseph M. White's A New Collection of Laws, Charters and Local Ordinances of the Governments of Great Britain, France and Spain (1839). Frederic Hall's The Laws of Mexico (1885) also is an important summary.
RANCHO TITLES AND THE LAND COMMISSION
A wealth of material, general and specific, about the acquisi- tion of title to ranchos during the Spanish and Mexican periods, as well as an account of the activities of the United States Land Commission, is uncovered in a volume-by-volume perusal of Bancroft's seven volumes and Hittell's four vol- umes on the history of California. Bancroft is the most re- warding of all the historians on the subject of ranchos and land titles, though every California historian gives substan- tial space to this topic. John Walton Caughey has successfully summarized it in less than fifteen pages in his California (1940).
The most important economic and social study of the rancho period is Cattle on a Thousand Hills (1941) by Robert Glass Cleland. Although concerned largely with the southern California ranchos, and with concentration on the Stearns group, it presents an over-all picture, beginning with the land concessions of 1784 and gives considerable space to grants, titles, the Act of 1851, and the Land Commission, as well as offering a general picture of life on the ranchos.
The sources on the subject, drawn upon by all the his- torians, are the reports of Jones and of Halleck already re- ferred to. These reports present the first adequate assemblage in English of the Spanish and Mexican laws bearing on the subject of land titles in California. To them may be added
263
Bibliography
John W. Dwinelle's invaluable material in The Colonial His- tory of San Francisco. The third edition (1866) has the largest amount of supplemental documents and data. Alfred Wheel- er's Land Titles in San Francisco and The Laws Affecting The Same (1852) should also be added. Wheeler's book is largely a listing of land grants within San Francisco's limits, but it presents summaries of the author's research in the Laws of the Indies and in other sources.
Land Commission and court proceedings involving indi- vidual ranchos, together with other court proceedings and decrees, state and federal, are primary source material, of course, but they cannot well be enumerated here. So, too, original Spanish and Mexican archives material in the Na- tional Archives, Washington, D.C., and copies available in the Capitol Building, Sacramento, in the Bancroft Library, Berkeley, and in the office of the United States District Court, San Francisco.
For a listing of claims before the Land Commission, con- sult the appendix in Ogden Hoffman's Report of Land Cases Determined in the United States District Court for the North- ern District of California (1862). This table of claims gives information about each claim's origin, as well as the commis- sion and court case numbers, thus enabling the investigator to get off to a good start when "running down" any particular rancho. A revision of this Hoffman index was made by J. N. Bowman in 1941, his "Private Land Cases" a manuscript available in the Bancroft Library, Berkeley, as well as in the office of the United States District Court, San Francisco. Dr. Bowman has also compiled an "Index of California Private Land Grants and Private Land Grant Papers" (1942), also in manuscript. Several early-day indexes to land grants and a one-volume Index to Land Cases were among the records transferred in 1937 to The National Archives, Washington, D.C. (See March, 1944, issue of The Quarterly of the His- torical Society of Southern California.)
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