Contra Costa County CA Archives History - Books .....Inocencio Romero, Et. Al. Vs. U. S. 1882
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Book Title: History Of Contra Costa County, California

   INOCENCIO ROMERO et al., claiming El Sobrante, Appellants, vs. THE UNITED
STATES.—Claim for five leagues of land in Contra Costa county, rejected by the
Board, and appealed by the United States. It appears from the expediente on file
in the archives, that on the eighteenth day of January, 1844, the brothers
Romero petitioned the Governor in the usual form for a grant of land, being a
sobrante lying between the ranches of Moraga, Pacheco and Welch. This petition
was by a marginal order referred to the Honorable Secretary for his report. The
Secretary referred the papers to the First Alcalde of San Jose, with directions
to summon Moraga, Pacheco and Welch, hear their allegations, and return the
papers to the office. On the first of February, 1844, the First Alcalde reports
that the owners of the lands bounded by the tract have been confronted with the
petitioners, and that the former are willing and desirous that the land be
granted. He adds that it had come to his knowledge that one Francisco Soto
claimed the tract some six or seven years ago, but as he had never used nor
cultivated it, the petitioners appeared to him to be entitled to the favor they
ask. On the fourth of February, 1844, Manuel Jimeno, the Secretary, reports to
the Governor that, in view of the report of the First Alcalde, there would seem
to be no obstacle to making the grant. On this report of the Secretary, the
Governor makes the following order: "Let the Judge of the proper district take
measurement of the unoccupied land that is claimed, in presence of the
neighbors, and certify the result, so that it may be granted to the
petitioners.—Micheltorena." On the twenty-first of March, 1844, the claimants
addressed a petition to the Governor, representing that, owing to the absence of
the owners of the neighboring lands, the Judge of the Pueblo of San Jose" had
been unable to execute the superior order, (above recited), and soliciting that
his Excellency would grant the tract to them, "either provisionally, or in such
way as he would deem fit," while there was yet time for planting, etc. On this
petition Jimeno reports (March 23, 1844,) that the original order should be
carried into effect as to the measurement of the land, and that "as soon as that
was accomplished, Senor Romero can present himself with Senor Soto, who says he
has a right to the same tract." The Governor thereupon made the following
report: "Let everything be done agreeably to the foregoing
report.—Micheltorena." The above documents constitute the whole expediente on
file in the archives. From the documents produced by the claimant from the files
of the Alcalde's office, it appears that on the same day, March 23, 1844, Jimeno
communicated to the Alcalde the order of the Governor that the Sobrante
solicited by the Romeros should be measured, and that if it should be necessary
a measurement of the adjoining ranchos should also be made—with the
understanding that those parties who should become "agraciados" should bear the
expense. It is evident that up to the date of the last order of Michel-torena no
grant of the land had issued. That pursuant to the recommendation of Jimeno, the
Governor declined to make even a provisional grant as solicited, and that final
action in the matter was deferred until a measurement should be made, and until
Romero and Soto should present themselves. Jimeno does not seem to have finally
adopted the opinion of the Alcalde that Soto had forfeited his rights to the
land, for he recommends to the Governor, as we have seen, that the land should
be measured without delay, and that then "Romero should present himself, joined
with Senor Soto, who says he has a right to the same land." In this
recommendation the Governor concurs. There is certainly nothing in these
proceedings which indicate that the Governor had finally determined to grant the
land, though it is evident that he regarded the application with favor; still
less can any of the orders made by him be construed to import a present grant.
On the contrary, it is clear that the Governor refuses to make even a
provisional grant, but insists that a measurement shall first be made, and then
tnat Romero and Soto shall appear before him, evidently with the view of
determining the rights of the latter.

   The subsequent proceedings, as shown by documents exhibited by the claimants,
confirm this view. On the fifteenth of January, 1847, Romero and Garcia, the
present claimants, appeared before John Burton, the Alcalde of San Jose, and
executed a paper in the presence of the Alcalde and two witnesses, reciting a
sale by Romero to Garcia of one-half of the land, and stipulating that both
parties should remain subject to the final result, "if the Governor grant it in
ownership." And if the contrary should be "the case, then Garcia should lose
equally with Romero, without any right to reclaim the consideration paid." This
paper is signed by the parties, the Alcalde and the witnesses. On the
twenty-eighth of May, 1847, Jose Romero addressed a petition to John Burton,
Alcalde of San Jose, representing that as early as 1844, an order from the
former Governor had been sent to the Alcalde's Court requiring a measurement of
the land called "Juntas;" that such measurement had not yet been made. He
therefore solicits the Alcalde to give him a testimonial of the reports which in
the year 1844 were sent to the Government, so "that we can be granted said
land." The Alcalde in a marginal order directs that the lands should be measured
according to the original order of the Supreme Government. In the margin of the
order transmitted by Jimeno, under date of March 23, 1844, the Alcalde writes:
"Be it done accordingly, on the ninth of April, 1847. The interested parties
will proceed to take possession of the mentioned land according to the order of
the Governor. I further order, that in case any bordering land-owner demand it,
a measurement of his land be ordered. John Burton, J. P." It appears, moreover,
that about two months before the date of their last petition, viz: on the
thirty-first of March, 1847, Jose Romero had addressed a petition to the same
Alcalde, representing that some years before he had solicited a piece of land in
the Canada de San Ramon, and bordering upon lands of Don M. Castro, and that his
Excellency had ordered the lands of Castro to be measured, which had never been
done. The petitioners further stated that they were two brothers, with a
numerous family, and were without any piece of land whatever to raise cattle;
they therefore begged the Alcalde to provide for them as soon as possible, that
they might retain and locate their stock. The Alcalde on the fifth of April
orders that the fulfillment of the superior order should be at once proceeded
to. The entry in the marginal order transmitted by Jimeno was made on the
Romeros' petition of the twenty-third of March, and not on that of the
twenty-eighth of May, above referred to; for it directs the measurement to be
proceeded to on the ninth of April. And, finally, on the twenty-seventh of
December, 1847, K. H. Dimmick, then Alcalde, makes an order in which, after
reciting that disputes as to the boundaries existed between the Romeros and
Domingo Peralta, he directs that the boundaries be established and adjusted in
the manner specified in the order of the Governor, dated twenty-third of March,
1844. I have stated the contents of these various documents with some
particularity, because an attempt has been made since the rejection of the claim
by the Board, to show by parol evidence that a final grant issued to the
Romeros, which has been lost. We have seen that the last document in the
expediente is the order of the Governor of the twenty-third of March, 1844,
adopting Jimeno's recommendation that a measurement should be made before
issuing the final grant, or even a provisional one, as solicited by Romero; and
even then it does not seem that the grant was certainly to be made, for Romero
and Soto were to " present themselves," evidently for the purpose of enabling
the Governor to ascertain their respective rights. Nothing further seems to have
been done, either by the government or the petitioners, until 1847. On the
thirty-first of March of that year we find the Romeros representing to the
Alcalde that the Governor had some years before ordered the land to be measured,
which had not been done; and that they were without any piece of land whatever,
and they beg the Alcalde to provide for them. The Alcalde thereupon directs that
the superior order of March 23, 1844, be proceeded to. On the 28th of May, 1847,
the Romeros again petition the Alcalde, representing that as early as 1844, the
Governor had sent to the Alcalde's Court an order requiring a measurement of the
land; they therefore ask a testimonial of the reports and orders in his office,
"so that we may be granted the land." The Alcalde again directs the superior
order of March 23, 1844, to be complied with, and on the following day a
declaration is made before the Alcalde by Antonio M. Pico, that Don J. Moraga
and Don L. Pacheco, the colindantes, had declared that for their parts the
surplus of land which does not belong to them "could be granted to the Romeros."
And, finally, the deed from Romero to Garcia of January 15, 1847, expressly
stipulates that both the parties to it should remain subject to the final
result, "if the Governor grant it in ownership, and if the contrary should be
the case, then Garcia should lose equally with Romero without reclamation."These
documents appear to me to establish beyond doubt that all action of the
Government on the application of the Romeros terminated with the order of March
23, 1844, directing the measurement as an indispensable preliminary to a grant,
either final or provisional. That during the year 1847, the petitioners made
several attempts to have that measurement effected, but apparently without
success; and that up to December, 1847, neither they nor any one else pretended
that the order of March 23, 1844, was not the last act of the Government in the
premises. The parol testimony offered to prove that a grant issued will be
briefly adverted to. C. Brown swears that the Romeros have lived on the Rancho
since 1840, and that he always understood they had a grant. He does not pretend
to have seen it. James M. Tice swears that he has searched for the title papers,
but has been unable to find them. J. J. P. Mesa saw a bundle of papers in
Romero's hands on his return from Monterey, in 1844. The bundle was not opened,
but Romero said they were his title papers. He subsequently saw Micheltorena's
order for the measurement of the land. He does not pretend to have seen any
grant. It is to be observed that Mesa was examined before the Board, and did not
mention this circumstance; and that he can neither read nor write. Inocencio
Romero, who disclaims any present interest in the land, swears that he had a
grant; that he gave it to Mr. Tingley to be presented to the Board, and that
since then he has not seen it. He also states that the grant was made by
Micheltorena a short time after he arrived in the country, and that Arce, who
was then his secretary, delivered it to him. The expediente, however, shows that
Jimeno was the secretary, at least until March 23, 1844. And as it is clear that
at that date the grant was suspended until a measurement should be made, the
title papers seen by Mesa in the hands of Romero on his return from Monterey in
1844, must have been the papers now produced.

   The testimony of Mr. G. B. Tingley is the only evidence in the cause which
approaches proof that a grant issued. This witness swears that on the trial of a
suit between Domingo Peralta and the Romeros, a grant from Micheltorena to the
latter was produced in evidence; that the petition was for a sobrante; that the
signatures were genuine; and that one Sanford took the papers, and he has never
seen them since. On his cross-examination he states that the papers produced
were the original petition, and the marginal order of reference an information
signed by A. M. Pico, then a decree of concession, and final a title in form,
with a condition that the grant should not interfere with the adjoining grants.
If these papers were produced, they must all, with the exception of the grant,
have been procured from the archives, for the petition, the informes, and the
decree of concession form part of the expediente which remains on file. That
expediente is in evidence in this cause, and contains no decree of concession
whatever, nor any draft or "borrador" of the formal title delivered to the
party, as is almost invariably the case where such a document issued; on the
contrary, the last order of the Governor, in effect, refuses, as we have seen,
to grant the petition for even a provisional title until a measurement was made,
which clearly was not done until after December, 1847, if at all. Besides, if
all these papers were produced from the archives and were delivered to Sanford,
how does it happen that only a part of them were restored to the archives, and
are now produced? Jose Ramon Mesa, a witness produced on the part of the United
States, testifies that he was present at the trial of the suit referred to by
Mr. Tingley; that no formal title was produced by the Romeros, but only a
provisional license to occupy, subject to the boundaries of the neighboring
proprietors, during the pendency of the proceedings to obtain a title. The
witness further swore that he heard Inocencio Romero state to Domingo Peralta,
in reply to an inquiry as to what title he had, that he had no title; and that
he had intended to take steps to get one, but that all he had was a "provisional
license." This provisional license is in all probability the order made by John
Burton, Justice of the Peace, in April, 1847, on the margin of the Governor's
order of March 23, 1844, for the measurement of the land, and was in compliance
with Romero's petition to him of the thirty-first of March, 1847.    The Justice
of the Peace directs that "the interested party will proceed to take possession
of the land, according to the order of the Government," etc. As a copy of
Jimeno's order, with this marginal entry of Burton's, appears to have been
furnished to Romero, and by him sent to Garcia, it is in all probability the
"license" referred to. It will not be pretended that any rights could be
conferred by such an order of an American Justice of the Peace in April, 1847.
The record of the suit between Peralta and the Romeros has been produced. It
contains no evidence whatever even tending to show that a grant was produced at
the trial. Antonio M. Pico, a witness produced by the claimants, swears that he
received an order from the Governor to put the coterminous neighbors, Pacheco
and Moraga, into possession of their land, and to measure the same for the
purpose of separating them from those of the Romeros; that he was directed by
the same order to put the Romeros in possession of the surplus; that he summoned
the colindantes, but they did not appear; that he did not then execute the
order, but repeated the summons to them; that the Romeros made a complaint to
the Governor, and he, the witness, received from the latter a new order to carry
the former into effect, upon which he told the Romeros to go there—which they
did in 1844. This witness explicitly states that no title to the land in favor
of the Romeros was ever exhibited to him. The orders referred to by Pico are
obviously those contained in the expediente. The first order did not, as he
supposes, direct him to put the Romeros in possession, but only to measure the
land and certify the result, "so that it might be granted." Romero's complaint
or petition to the Governor, stating the failure of the alcalde to measure the
land, and asking for a provisional grant, we also find in the expediente, and
also the second order of the Governor, which, like the former, only directs the
measurement of the land—the Governor having, as we have seen, adopted Jimeno's
recommendation that the land should be measured, and Soto and Romero should
present themselves before any grant should issue. On the parol proofs alone I
should come to the conclusion that Mr. Tingley is mistaken in supposing that a
grant for the land was ever produced. But the evidence afforded not only by the
expediente, but by the repeated declarations of the Romeros themselves in their
various petitions and in the conveyance to Garcia, remove every possible doubt
on the question. The facts of the case are unmistakable. The Romeros solicited
land, which the Governor was disposed to grant. He directed a measurement
preparatory to making the grant, and this measurement never was effected. I
cannot perceive how this Court can recognize these proceedings as giving any
title to the lands. It may be admitted that in 1844 they went upon the land, as
stated by Pico—though, if so, it is singular that John Burton, Alcalde, should,
in April, 1847, have ordered "the interested parties to proceed to take
possession of the mentioned lands, according to the order of the Government."
But this occupation, not authorized, so far as it appears, by the Government,
and only made in pursuance of a verbal permission of Pico, and without the
measurement of the land, as required by both orders of Micheltorena, can hardly
be deemed to have conferred any title, either legal or equitable, upon the
claimants. The case is, perhaps, a hard one, for there seems no reason to
suppose that the grant would have been refused if the measurement had been made
and Soto's rights had been found to have been forfeited. But no grant, either
perfect or inchoate, was made, nor any promise given that one should be made.
The petitions were favorably received, a provisional grant refused, and a
measurement directed. There the action of the Goverment ended, and certainly
such proceedings did not confer such a right of property in the land as this
Court can recognize. The claim must be rejected. (June Term, 1857.)


Additional Comments:
Extracted from:

HISTORY OF CONTRA COSTA COUNTY,
CALIFORNIA,
INCLUDING ITS GEOGRAPHY, GEOLOGY, TOPOGRAPHY, CLIMATOGRAPHY AND DESCRIPTION;
TOGETHER WITH A RECORD OF THE MEXICAN GRANTS; THE BEAR FLAG WAR; THE MOUNT
DIABLO COAL FIELDS; THE EARLY HISTORY AND SETTLEMENT, COMPILED FROM THE MOST
AUTHENTIC SOURCES; THE NAMES OF ORIGINAL SPANISH AND MEXICAN PIONEERS; FULL
LEGISLATIVE HISTORY OF THE COUNTY; SEPARATE HISTORY OF EACH TOWNSHIP, SHOWING
THE ADVANCE IN POPULATION AND AGRICULTURE;
ALSO,
Incidents of Pioneer Life; and Biographical Sketches
OF EARLY AND PROMINENT SETTLERS AND REPRESENTATIVE MEN;
AMD OF ITS TOWNS, VILLAGES, CHURCHES, SECRET SOCIETIES, ETC.
ILLUSTRATED.
SAN FRANCISCO: W. A. SLOCUM & CO., PUBLISHERS
1882.


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