Marin County CA Archives History - Books .....Mexican Grants, Part 2 1880
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Book Title: History  Of Marin County, California

  III. "GRANTS OF ISLANDS, KEYS AND PROMONTORIES, POINTS OF IMPORTANCE TO THE
PUBLIC," ETC.

  The only points of special public importance which I learned were granted
prior to the cessation of the former government, are the site of the old fort of
San Joaquin, near the outlet of the Bay of San Francisco, and Alcatraz (or Bird)
Island, commanding its entrance, the Key of the Golden Gate. The date of the
first named grant is June 25, 1846; it was made to Benito Diaz, and by him
transferred to Mr. T. O. Larkin, of Monterey. I understand a portion of the land
embraced in the giant is in occupation of the United States troops, or has
property of the United States upon it, and a part in possession of Mr. Larkin.

  Alcatraz Island was granted in June, 1846, to Mr. Francis P. Temple, of Los
Angeles. The indispensableness of this point to the Government, both for the
purpose of fortification, and as a proper position for a light-house, induced
Lieut-Col. Fremont, when Governor of California, to contract for the purchase of
it on behalf of the United States. The Government, it is believed, has never
confirmed the purchase, or paid the consideration, This island is a solid rock,
of about half-a-mile in circumference, rising out of the sea just in front of
the inner extremity of the throat or narrows which forms the entrance to the
bay, and perfectly commands both front and sides. It is also in the line of the
sailing directions for entering the bay,* and consequently a light-house upon it
is indispensable.


*Becchy's Narrative of  a voyage to the Pacific; London, 1831; appendix p. 562.


  The local government had special authority and instructions from the general
government, under date July 12, 18S8, to grant and distribute lands in '*the
desert islands adjacent to that department."

  Whether the grants "purport to he inchoate or perfect?" The grants made in
that department under the Mexican law, all, I believe, purport to be perfect,
except in the respect of requiring "confirmation by the departmental assembly."
The difficulties of determining what grants have not received this confirmation
have been above explained.

IV. " IF THERE BE ANY ALLEGED GRANTS OF LANDS COVERING A PORTION
OF THE GOLD MINES; AND WHETHER IN ALL GRANTS IN GENERAL (UNDER THE MEXICAN
GOVERNMENT,) OR IN CALIFORNIA IN PARTICULAR, THERE ARE NOT CONDITIONS AND
LIMITATIONS, AND WHETHER THERE IS NOT A RESERVATION OF MINES OF GOLD AND SILVER,
AND A SIMILAR RESERVATION AS TO QUICKSILVER AND OTHER MINERALS?"

  There is but one grant that I could learn of which covers any portion of the
gold mines. Previous to the occupation of the country by the Americans, the
parts now known as The Gold Region, were infested with the wild Indians, and no
attempts made to settle there. The grant that I refer to was made by Governor
Micheltorena, to Don Juan B. Alvarado, in February, 1844, and is called the
Mariposas, being situated on the Mariposas creek, and between the Sierra Nevadas
and the river Joaquin, and comprises ten sitios, or leagues square, conceded, as
the grant expresses, "in consideration of the public services " of the grantee.
It was purchased from the grantee (Alvarado) in February, 1847, by Thomas O.
Larkin, Esq., for Mr. J. C. Fremont, and is now owned by that gentleman.

  The only "conditions or limitations" contained in the grants in California
which could affect the validity of the title, are, that ii the grants made by
some of the governors, a period of time (one year) was fixed, within which the
grantees should commence improvements on the grant. In case of failure, however,
the grant was not thereby void, but open to denouncement by other persons. This
limitation was not contained in such of the grants made in the time of
Micheltorena, as I have examined, nor is it prescribed by law. No doubt,
however, the condition was fulfilled in most Instances where it was inserted,
unless in a few cases where the lands conceded were in parts of the country
infested by the wild Indians, and its fulfillment consequently impossible. In
fact, as far as I understood, it was more customary to occupy the land in
anticipation of the grant. The grants were generally for actual (immediate)
occupation and use.

  I cannot find in the Mexican laws or regulations for colonization, or the
granting of lands, anything that looks to a reservation of the mines of gold or
silver, quicksilver or other metal or mineral; and there is not any such thing
expressed in any of the many grants that came under my inspection. 1 inquired
and examined also, while in Mexico, to this point, and could not learn that such
reservations were the practice, either in general or in California in particular.

  V. "IN ALL LARGE GRANTS, OR GRANTS OF IMPORTANT OR VALUABLE SITES, OR OF
MINES, WHETHER OR NOT THEY WERE SURVEYED AND OCCUPIED UNDER THE GOVERNMENT OF
SPAIN OR MEXICO, AND WHEN PUBLICITY WAS FIRST GIVEN TO SUCH GRANTS?"

  The first part of this inquiry is already answered, in the statement that, as
far as I am aware, there were never any surveys made in the country during its
occupation by either of the former governments. Most of the grants, however,
were occupied before, or shortly after they were made, and all, as far as I am
informed, except where the hostile Indian occupation prevented. In respect of
the grants to which I have made any reference, I did not learn that there had
been any delay in giving publicity to them.

  Having met, sir, as far as in my power, the several inquiries set forth in the
letter of instructions you were pleased to honor me with, my attention was
turned, as far as they were not already answered, to the more detailed points of
examination furnished me, with your approbation, by the Commissioner of Public
Lands. The very minute information contemplated by those instructions, it would
have been impossible, as you justly anticipated, to obtain in the brief time
proposed for my absence, even had it been accessible in systematic archives and
records.    My examination, moreover, was sufficient to show me that such minute
and exact information on many of the various heads proposed, is not attainable
at all; and that the only mode of approximating it must be through such measures
as will produce a general registration of written titles, and verbal proof of
possession where written titles are wanting, followed or accompanied by a
general survey. By such means only can an approximation be made to the minute
information sought of the character, extent, position and date, particularly of
the old grants in California.

  The first branch of the inquiries proposed by the instructions from the Land
Office, relate to "grants or claims derived from the Government of Spain."

  The chief local authority to grant lands in the province of California was, ex
officio, the military commandant, who was likewise governor of the province; and
the principal recipients of grants, officers and soldiers as they retired from
service. The grants to the soldiers were principally of lots in and about the
presidios (military posts) or the pueblos (villages); to the officers, farms and
grazing lands, in addition to such lots.

  There were also, at different times, settlers brought from Sonora, and other
provinces of New Spain (single men and families), and grants made to them;
usually of village lots, and to the principal men, ranchos in addition. The
first settlement at San Francisco was thus made; that is, settlers accompanied
the expeditions thither, and combined with the military post. The pueblos of San
Jose and Los Angeles were thus formed. The governor made grants "to the retired
officers under the general colonization laws of Spain, but, as in all the remote
provinces, much at his own discretion. He had likewise special authority to
encourage the population of the country, by making grants of farming lots to
soldiers who should marry the native bred women at the missions. The captains of
the presidios were likewise authorized to make grants within the distance of two
leagues, measuring to the cardinal points from their respective posts. Hence,
the presidios became in fact villages. The Viceroy of New Spain had also of
course authority to make grants in California, and sometimes exercised it. It
was pursuant to his order that presidios, missions, and pueblos, were severally
established, and the places for them indicated by the local authority. Under all
these authorities, grants were made; strictness of written law required that
they should have been made by exact measurements, with written titles, and a
record of them kept. In the rude and uncultivated state of the country that then
existed, and lands possessing so little value, these formalities were to a great
extent disregarded, and if not then altogether disregarded, the evidence of
their observance in many cases were lost. It is certain that the measurements
even of the grants of village lots, were very unexact and imperfect; and of
larger tracts, such as were granted to the principal men, no measurement at all
attempted, and even the quantity not always expressed, the sole description
often being by a name "Instructions to be observed by the commandant appointed
to the new establishments of San Diego and Monterey." These instructions
authorized (as already noticed) the allotment of lands to Indians, either in
community or individually; but it is to be understood only of Indians who should
be in charge of the missions, and of the parcels of land within the mission
settlements. Article thirteen, gave the commandant "equal authority, likewise,
to distribute lands to other settlers, according to their merit and conformably
to the compilation of laws concerning new conquests and settlements." That is,
according to the compilation of the "Laws of the Indias," which we know make
certain provisions of the most liberal character for the founding and
encouragement of new populations.

  Subsequently, without abrogating the general colonial laws, a special
Regulation was adopted, with the royal assent, for the government of the
California, and making special provision for the settlement of that province,
and the encouragement of colonizers. This regulation was drawn in Monterey, by
Governor Don Felipe Neve, in 1779, and confirmed by a Royal cedula of October
14, 1781. Its character and objects are shown in its title, namely: "Rules and
directions for the Presidios of the Peninsula of California, erection of new
Missions, and encouragement of the Population, and extension of the
establishments of Monterey." The first thirteen articles relate to the presidios
and military. Title fourteen relates to the 'Political Government and directions
for Peopling." After providing liberal bonuses to new settlers in respect of
money, cattle, and exemptions from various duties and burthens, this Regulation
prescribes: That the solares (house lots) which shall be granted to the new
settlers, shall be designated by the governor in the places, and with the extent
that the tract chosen for the new settlement will allow, and in such manner that
they shall form a square, with streets conformably to the laws of the kingdom;
and by the same rule shall be designated common lands for the pueblos, with
pasturage and fields for municipal purposes (propios). That each merle
(out-lot), both of irrigable and unirrigable land, shall be two hundred varas
square; and of these suertes, four (two watered and two dry) shall be given with
the solar, or house lot, in the name of the King, to each settler.

  These rules relate to the formation of villages and farming settlements, and
are exclusive of the extensive ranchos—farms and grazing lands—allotted to
persons of larger claims or means; sometimes direct from the viceroy, usually by
the local governor.

  The acts of the Spanish Cortes, in 1813, heretofore quoted, may also be
referred to as a part of the authority under which grants might be made in
California, during the continuance of the Spanish government, and prior to the
colonization laws of Mexico, and afterwards, indeed, as far as not superceded by
those laws.

  The second point of inquiry in the instructions furnished me from the Land
Office, relating to grants made under the Mexican Government, is already met in
most respects, as far as was in my power to meet it, in the early part of this
report. The "authority of the granting officers, and their powers for alienating
the national domain," were derived from appointment by the Central Government,
and from the/general colonization laws and regulations of the Republic. There is
litttle room for discrimination between such as are perfect titles, and such as
are inceptive and inchoate." A grant by the territorial (or departmental)
governors within the extent of eleven sitios constituted, a valid title, and
with the approbation of the Departmental Assembly, a perfect one. After the
governor's concession," however, it could not with propriety be termed merely
inceptive; for, in fact, it was complete until the legislature should refuse its
approbation, and then it would be the duty of the governor to appeal for the
claimant to the Supreme Government. I am not aware that a case of-this kind
arose. The difficulties, already explained, of ascertaining to what grants the
legislative approbation was accorded, and from what it was withheld; the
impossibility, in fact, of ascertaining in many cases, coupled with the fact
that that approbation was so seldom refused, and that the party had still an
appeal in case of refusal, would seem to render that provision of the law of
those grants nugatory as a test of their merits.

  The third inquiry, touching "grants made about the time of the revolutionary
movements in California, say in the months of June and July, 1840," is chiefly
answered in what is said concerning the actual condition of the missions, and
the grants of Fort Joaquin at the mouth, and Alcatras Island inside the entrance
of the Bay of San Francisco. In addition to these, the large island of San
Clemente, I understood, was granted about that time, say in May, 1846. I found
nothing in the archives concerning it. I do not think there were other grants to
attract particular attention, except the proposed great Macnamara grant or
contract, of which the principal papers are on file in the State Department, and
have been printed in the Congressional Documents.

  In the second branch of the last-mentioned inquiry, namely, concerning any
"grants made subsequent to the war," I suppose the intent is, grants, if any,
made after the reduction of the country by the arms of the United States. There
are, of course, no Mexican grants by the Mexican authorities, which purport to
have been issued subsequent to that time. The inquiry must relate, therefore,
either to supposed simulated grants, by persons formerly in authority there, or
to whatever may have been done, in respect of * the domain, by or under the
American authorities. It is believed in the country that there are some
simulated grants in existence; that is, some papers purporting to be grants
which have been issued since the cessation of the Mexican Government, by persons
who formerly, at different times, had the faculty of making grants in that
country. It would be impossible, however, to make a list of them, with the
particulars enumerated in the instructions; for, if there be any such, they
would of course not be submitted for public inspection, or in any way seek the
light. But,1 believe it would not be difficult for a person skilled in the
grants in that country, and acquainted with the archives, and the facts to be
gathered from them, to detect any simulated paper that might be thus issued
after the person issuing it had ceased from his office. The test, however, would
necessarily have to be applied to each case as it arose. No general rule, I
believe, can be laid down.

  Recurring, then, to the other point which I suppose the inquiry to relate to.
The most Considerable act, affecting the domain, had subsequent to the accession
of the American authorities in California, was a "decree" made by Gen. Kearney,
as governor, under date March 10, 1847, as follows:—

  "I, Brigadier-General S. W. Kearny, Governor of California, by virtue of
authority in me vested, by the President of the United States of America, do
hereby grant, convey and release unto the town of San Francisco, the people, or
corporate authorities thereof, all the right, title, and interest of the
Government of the United States, and of the territory of California, in and to
the beach and water lots on the east front of said town of San Francisco,
included between the points known as Rincon and Fort Montgomery, excepting such
lots as may be selected for the use of the United States Government by the
senior officers of the army and navy now there; provided the said ground hereby
ceded shall be divided into lots, and sold by public auction to the highest
bidder, after three months notice previously given; the proceeds of said sale to
be for the benefit of the town of San Francisco."

  Pursuant to the terms of this paper, what are termed "government reservations"
were made, both within and outside the limits specified, and the remainder of
the lots designated have been since in great part sold by the town of San
Francisco. These lots extend into the shallow water along the beach of San
Francisco, and are very suitable and requisite for the business purposes of that
growing city. The number of four hundred and forty-four of them were sold in the
Summer ensuing the "decree" and in December last, I have learned since my
return, the remainder, or a large portion of them, were disposed of by the
corporation. But little public use has been made of what are denominated the
"government reservations." Portions of them are reputed to be covered by old
grants; portions have been'settled on and occupied by way of pre-emption, and
other portions, particularly "Rincon Point," have been rented out, as I am
informed, to individuals, by the late military government.

  Under the above decree of General Kearny, and the consequent acts of the
authorities of San Francisco, such multiplied, diversified and important private
interests have arisen, that, at this late day, no good, but immense mischief
would result from disturbing them. The city has derived a large amount of
revenue from the sale of the lots; the lots have been re-sold, and transferred
in every variety of way, and passed through many hands, and on many of them
costly and permanent improvements have been made; improvements required by the
business and wants of the community, and which ought to give the makers of them
an equitable interest in the land, even without the faith of the Government
implied by leaving the act of its agent so long unquestioned. An act of
Congress, relinquishing thus in the lawful mode the interest of the United
States in those beach and water lots, would seem to be only an act of justice to
the city and to lot-holders, and to be necessary to give that validity and
confidence that ought to attach to property of such great value and commercial
importance.

  In regard to the "government reservations," so called where they may be in
private hands, whether under a former grant, or by occupancy and improvement,
the same equity would seem to call for at least a pre-emption right to be
allowed the holders, except for such small parts as may be actually required for
public uses. In regard to the places known as "Clark's Point," and "Rincon
Point," which are outside of the land embraced in General Kearney's decree, and
portions of which it is understood have been put in the hands of rentees;
perhaps the most equitable use that could be made of them (except, as before,
the parts needed for public uses), would be to relinquish them to the city, to
be sold as the beach and water lots have been; with due regard, at the same
time, to rights accruing from valuable improvements that may have been made upon
them, but repressing a monopoly of property so extensive and valuable, and so
necessary to the improvement, business and growth of the city.

  Other operations in lands which had not been reduced to private property at
the time of the cessation of the former government, have taken place in and
about different towns and. villages, by the alcaldes and other
municipal-authorities continuing to make grants of lots and out-lots, more or
less according to. the mode of the former government. This, I understand, has
been done, under the supposition of a right to the lands granted, existing in
the respective towns and corporations. Transactions of this nature have, been to
a very large extent at San Francisco; several hundred in lots of fifty varas
square, and out-lots of one hundred varas square, have been thus disposed of by
the successive alcaldes of the place since the occupation of it by the American
forces, both those appointed by the naval and military commanders, and those
subsequently chosen by the inhabitants.

  It is undoubtedly conformable to the Spanish colonial laws, that when villages
were to be established, there should be liberal allotments to the first
settlers, with commons for general use, and municipal lands (propios) for the
support and extension of the place—that is, to be rented, or otherwise
transferred, subject to a tax; and that the principal magistrate, in conjunction
with the ayuntamiento, or town, council, should have the disposal of those town
liberties, under the restrictions of law, for the benefit of the place, and the
same was the practice in. California, under the Mexican government. It is not
always so easy to determine within what limits this authority might be
Exercised; but in new communities, whether the settlement was founded by an
empresario (contractor) or by the government, the allotments were always on a
liberal scale, both for the individuals and the village. A very early law (law
6, tit. 3, lib. 4, Recop. de Indias) fixes "four leagues of limits and land (de
termino y territorio) in square or prolonged, according to the nature of the
tract," for a settlement of thirty families; and I suppose this is as small a
tract as has usually been set apart for village uses and liberties, under the
Spanish or Mexican government in New Spain; sometimes much more extensive
privileges have no doubt been granted. The instructions of 1773 to the
commandant of the new posts, authorizes pueblos to be formed, without specifying
their limits, which would of course bring them under the general law of four
leagues.

  The Royal Regulation of 1781, for the Californias, directs suitable municipal
allotments to be made, "conformable to the law;" and this likewise must refer to
the law specifying four leagues square.

  The letter of instructions of 1791, authorizing the captains of presidios to
make grants, in the neighborhood of their respective posts, specifies the same
quantity, to wit: "the extent of four common leagues, measured from the center
of the Presidio square, two leagues in each direction, as sufficient for the new
pueblos to be formed under the protection of the presidios."

  The Mexican laws, as far as I am aware, make no change in this rule; and the
colonization regulations of 1828, provide (Art. 13,) that the reunion of many
families into a town shall follow in its formation, policy, etc., the rule
established by the existing laws for the other towns of the Republic."

  From all these, and other acts which might be quoted, it would seem that where
no special grant has been made, or limits assigned to a village, the common
extent of four leagues would apply to it; it being understood, however, as the
same law expresses, that the allotment should not interfere with the rights of
other parties. The Presidio settlements, under the order of 1791, were certainly
entitled to their four leagues; the right of making grants within the same only
transferred from the presidio captains to the municipal authorities who
succeeded him, as is conformable to Spanish and Mexican law and custom. This was
the case under the Spanish government; and I am not aware that the principle has
been changed, though no doubt grants have been made to individuals which
infringed on such village limits. The Territorial Deputation of California,
however, by an act of August 6, 1834, directed that the ayuntamentos of the
pueblos should "make application, for common and municipal lands (ejidos y
propios) to be assigned them." Wherever it shall appear that this was done, the
town, I suppose, could only now claim what was then set apart for it. Where it
was omitted or neglected, custom, reputed limits, and the old law, would seem to
be a safe rule.

  As to the point now under consideration, that of San Francisco, I find that in
the acts of the departmental authorities the settlements in and about the
presidio were styled "the pueblo of San Francisco" and the particular place
where the village principally was and the city now is, "the point of Yerba
Buena." The local authorities, as its alcalde, or justice of the peace, were
termed those of the pueblo of San Francisco. Its privileges were not, therefore,
at any time limited to the point of Yerba Buena. Originally, probably, it had
boundaries in common with the mission of Dolores, which would restrict it in its
four leagues; but after the conversion of the mission into a pueblo, the
jurisdiction of the authorities of San Francisco was extended, and special
license given to its principal magistrate to grant lots at the mission. San
Francisco is situated on a tongue or neck of land lying between the bay and the
sea, increasing in breadth in a southerly direction. A measurement of four
leagues south from the presidios would give the city, in the present advanced
value of property, a magnificent corporate domain, but not so much as was fairly
assignable to the precincts of the presidio under the order of 1791, nor so much
as all new pueblos are entitled to under the general laws of the Indias. There
are private rights, however, existing within those limits, apart from any grants
of the village authorities, which ought to-be respected; some through grants
from the former government; some by location and improvement, a claim both under
our own law and custom and under the Spanish law, entitled to respect. To avoid
the confusion—the destruction —that would grow out of the disturbing of the
multiplied and vast interests that have arisen under the acts of the American
authorities at San Francisco; to give the city what she would certainly
have-been entitled to by the terms of the old law, what she will need for the
public improvements and adornments that her future population will require, and
what is well due to the enterprise which has founded in so brief a space a great
metropolis in that remote region, perhaps no better or juster measure could be
suggested, than a confirmation of past acts, a release of government claims to
the extent of four leagues, measuring south from the presidio, and including all
between sea and bay, with suitable provision for protecting private rights,
whether under old grants or by recent improvements, and reserving such sites as
the government uses may require.

  By the authorities of the village of San Jose, there have been still larger
operations in the lands belonging or supposed to belong to the liberties of that
town. The outlands there, as I learned, have been distributed in tracts of three
to five hundred acres.

  The pueblo of San Jose was founded November 7, 1777, by order of Felipe de
Neve, then military commandant and governor. The first settlers were nine
soldiers and five laboring men or farmers, who went thither with cattle, tools,
etc., from San Francisco where had been established the year before, by order of
the Viceroy, the presidio and the mission of Dolores.. These persons took
possession, and made their settlement in the name of his Majesty, making out the
square for the erection of the houses, distributing the solares (house lots) and
measuring to each settler a piece of ground for the sowing of a fanega of maize
(two hunndred varas by four hundred,) and for beans and other vegetables.*
Subsequently, the Regulation of 1781, allowing to the new settlers each four
lots of two hundred varas square, beside their house lots, was no doubt applied
to this village. It was designed for an agricultural settlement, and, together
with the pueblo of the south (Los Angeles) received constantly the favor and
encouragement of the government, with the view of having sufficient agricultural
produce raised for the supply of the military posts. Both villages are situated
in fertile plains, selected for their sites with that object. In a report, or
information, made by the Governor, Don Pedro Fages, in February, 1791, to his
successor, Governor Romeu, the encouragement of the two pueblos is the first
topic referred to:—

  1. "Being (says Governor Fages) one of the objects of greatest consideration,
the encouragement of the two pueblos of civilized people, which have been
established, the superior government has determined to encourage them with all
possible aids, domiciliating in them soldiers who retire from the presidios, and
by this means enlarging the settlement.

  "2. By the superior order of April 27, 1784, it is ordered that the grains and
other produce, which the presidios receive from the inhabitants of the two
pueblos, shall be paid for in money, or such goods and effects as the
inhabitants have need of.

  "3. The distribution of lots of land, and house lots, made with all possible
requisite formalities, with designation of town liberties, and other lands for
the common advantage, as likewise titles of ownership given to the inhabitants,
were approved by the Senor Commandante General, the 6th February of the present
year of 1784."


  *Noticias de Nueva California, by the Rev. Father Palou; MSS., Archives of
Mexico.


  There are also records of families being brought at the government expense,
from the province of Sonora, specially to people the two pueblos. Both these
villages—being thus objects of government favor and encouragement—claim to have
been founded with more extensive privileges than the ordinary village limits;
and I have no doubt, from the information I received, that such was the case.
  The village of San Jose had a dispute of boundary as early as the year 1800,
with the adjoining mission of Santa Qlara, and which was referred the following
year to the government at Mexico. The fact is noted in the index to California
papers in the Mexican archives, but I did not find the corresponding record.
There is likewise in the book of records marked "1828," in the archives at
Monterey, an outline of the boundaries claimed by the pueblo at that time. But
at a later period (in 1834, I believe), there was a legislative action upon the
subject, in which, as I understand, the boundaries were fully agreed upon. Some
documents relating to this settlement are in the archives at San Jose, and also
in the territorial archives. My time did not permit me to make a full
investigation of the question of those boundaries, nor did I think it necessary,
because, at all events, they can only be definitely settled by a survey, the
same as private estates. My instructions., however, call for a discrimination
between acts done "with legal formalities," and such as are "without legal
sanction." It is therefore proper for me to say, that I do not know of any law
which would authorize the distribution of town property in California in lots
measured by hundreds of acres; such distribution, in fact, would seem rather to
defeat the ends for which town grants are authorized by the Spanish law. Perhaps
an act to authorize the limits of the town to be ascertained by survey, and to
leave the question of the validity of those recent large grants within the
limits of the same, to be determined between the holders, and the town in its
corporate capacity, would be as just and expedient as any other mode.

  In and about the town of Monterey, likewise, there were large concessions, as
I understood, and some including the sites of forts and public places, made by
the magistrate appointed there after the accession of the American authority.
The limits of this town, also, I think, depend on an act of the territorial
legislature, and may be ascertained by an authorized survey.

  The city of Los Angeles is one of the oldest establishments of California, and
its prosperity was in the same manner as that of San Jose, an object of
Government interest and encouragement. An Act of the Mexican Congress of May 23,
1835, erected it into a city, and established it as the capital of the
territory. The limits which, I understood, are claimed as its town privileges,
are quite large, but probably no more than it has enjoyed for sixty years, or
ever since its foundation. The grants made by this corporation since the
cessation of the former Government, have been, as far as I learned, quite in
conformity with the Spanish law, in tracts such as were always granted for house
lots in the village, and vineyards and gardens without, and in no greater number
than the increase of population and the municipal wants required.

  The only provision that seems to be wanting for the pueblo of Los Angeles, is
for the survey and definition of its extent, according to its ancient recognized
limits. The same remark, as far as I have learned, will apply to the remaining
towns of the country established under either of the former Governments.

  The remarks made in a previous part of this report in relation to the
missions, cover to a good degree the substance of that branch of the inquiries
proposed by the Commissioner of the Land Bureau. I have already stated that
originally the "mission lands" may be said to have been coextensive with the
province, since, nominally, at least, they occupied the whole extent, except the
small localities of the presidios, and the part inhabited by the wild Indians,
whom and whose territory it was their privilege to enter and reduce. .Among the
papers accompanying this report, is included a transcript of their recorded
boundaries." as stated in a record book heretofore noticed. It will be seen from
the fact first mentioned of their original occupation of the whole province, and
from the vast territories accorded to their occupation, as late as the year
1828, how inconsistent with any considerable peopling of the country would have
been any notion of proprietorship in the missionaries.

  I am also instructed to "make an inquiry into the nature of the Indian Rights
[in the soil], under the Spanish and Mexican governments."

  It is a principle constantly laid down in the Spanish colonial laws, that the
Indians shall have a right to as much land as they need for their habitations,
for tillage, and for pasturage. Where they were already partially settled in
communities, sufficient of the land which they occupied was secured them for
those purposes.* If they were wild and scattered in the mountains and
wildernesses, the policy of the law, and of the instructions impressed on the
authorities of the distant provinces, was to reduce them, establish them in
villages, convert them to Christianity, and instruct them in useful
employments.** The province of California was not excepted from the operation of
this rule. It was for this purpose especially, that the missions were founded
and encouraged. The instructions heretofore quoted, given to the commandant of
Upper California in August, 1773, enjoin on that functionary, that "the
reduction of the Indians in proportion as the spiritual conquests advance, shall
be one of his principal cares;" that the reduction made, "and as rapidly as it
proceeds, it is important for their preservation and augmentation, to congregate
them in mission settlements, in order that they may be civilized and led to a
rational life;" which (adds the instructions) "is impossible, if they be left to
live dispersed in the mountains."


  *  Recopilacion de Indias: laws 7 to 20, tit. 12, book 4. 
  ** Ib., laws 1 and 9, tit. 3, book 6.


  The early laws were so tender of these rights of the Indians, that they
forbade the allotment of lands to the Spaniards, and especially the rearing of
stock, where it might interfere with the tillage of the Indians. Special
directions were also given for the selection of lands for the Indian villages,
in places suitable for agriculture and having the necessary wood and water.* The
lands set apart to them were likewise inalienable, except by the advice and
consent of officers of the government, whose duty it was to protect the natives
as minors or pupils.**


  *  Law 7, tit. 12 Recop. Indias; ib., laws 8 and 20 tit. 3, book 6.

  ** Ib., law 27, tit. 6, book 1. Pena y Pena, 1 Practica Forense Mejicana, 248,
etc. Alaman, 1 Historia de Mejico, 23-25.


  Agreeably to the theory and spirit of these laws, the Indians in California
were always supposed to have a certain property or interest in the missions. The
instructions of 1773 authorized, as we have already seen, the commandant of the
province to make grants to the mission Indians of lands of the missions, either
in community or individually. But apart from any direct grant, they have been
always reckoned to have a right of settlement; and we shall find that all the
plans that have been adopted for the secularization of the missions, have
contemplated, recognized, and provided for this right. That the plan of Hijar
did not recognize or provide for the settlements of Indians, was one of the main
objections to it, urged by Governor Figueroa and the territorial deputation.
That plan was entirely discomfited; all the successive ones that were carried
into partial execution, placed the Indian right of settlement amongst the first
objects to be provided for. We may say, therefore, that, however
mal-administration of the law may have destroyed its intent, the law itself has
constantly asserted the rights of the Indians to habitations and sufficient
fields for their support. The law always intended the Indians of the
missions—all of them who remained there—-to have homes upon the mission grounds.
The same, I think, may be said of the large ranchos—most, or all of which, were
formerly mission ranchos—and of the Indian settlements or rancherias upon them.
I understand the law to be, that wherever Indian settlements are established,
and they till the ground, they have a right of occupancy in the land. This right
of occupancy, however—at least when on private estates—is not transferable; but
whenever the Indians abandon it, the title of the owner becomes perfect. Where
there is no private ownership over the settlement, as where the land it occupies
have been assigned it by a functionary of the country thereto authorized, there
is a process, as before shown, by which the natives may alien their title. I
believe these remarks cover the principles of the Spanish law in regard to
Indian settlements, as far as they have been applied in California, and are
conformable to the customary law that has prevailed there.*


  * Of course, what is here said of the nature of Indian rights, does not refer
to titles to lots and farming tracts, which have been granted in ownership to
individual Indians by the government. These, I suppose to be entitled to the
same protection as other private property.


  The continued observance of this law, and the exercise of the public authority
to protect the Indians in their rights under it, cannot, I think, produce any
great inconvenience; while a proper regard for long recognized rights, and a
proper sympathy for an unfortunate and unhappy race, would seem to forbid that
it should be abrogated, unless for a better. The number of subjugated Indians is
now too small, and the lands they occupy too insignificant in amount, for their
protection, to .the extent of the law, to cause any considerable molestation.
Besides there are causes at work by which even the present small number is
rapidly diminishing; so that any question concerning them can be but temporary.
In 1834, there were employed in the mission establishments alone the number of
thirty thousand six hundred and fifty.*

* This is not an estimate, it is an exact statement. The records of the missions
were kept with system and exactness; every birth, marriage, and death was
recorded, and the name of every pupil or neopfiyte, which is the name by which
the mission Indians were known; and from this record, an annual return was made
to the government of the precise number of Indians connected with the
establishment.

  In 1842, only about eight years after the restraining and compelling hand of
the missionaries had been taken off, their number on the missions had dwindled
to four thousand* four hundred and fifty, and the process of reduction has been
going on as rapidly since.

  In the wild and wandering tribes, the Spanish law does not recognize any title
whatever to the soil.

  It is a common opinion that nearly all of what may be called the coast
country—that is, the country west of the Sacramento and San Joaquin
val-]evs—which lies south of, and including the Sonoma district, has been ceded,
and is covered with private grants. If this were the case, it would still leave
the extensive valleys of these large rivers and their lateral tributaries,
almost intact, and a large extent of territory—from three to four degrees of
latitude— at the north, attached to the public domain within the State of
California, beside the gold region of unknown extent, along the foot-hills of
the Sierra-Nevada. But while it may be nominally the case, that the greater part
of the coast country referred to is covered with grants, my observation and
information convince me that when the country shall be surveyed, after leaving
to every grantee all that his grant calls for, there will be extensive and
valuable tracts remaining. This is explained by the fact that the grants were
not made by measurement, but by a loose designation of boundaries, often
including a considerably greater extent of land than the quantity expressed in
the title; but the grant usually provides that the overplus shall remain to the
government. Although, therefore, the surveys, cutting off all above the quantity
expressed in the grant, would often interfere with nominal occupation. I think
justice would generally be done by that mode to all the interests concerned—the
holders of the grants, the Government, and the wants of the population crowding
thither. To avoid the possibility of an injustice, however, and to provide for
cases where long occupation or peculiar circumstances may have given parties a
title to the extent of their nominal boundaries, and above the quantity
expressed in their grants, it would be proper to authorize any one who should
feel himself aggrieved by this operation of the survey, to bring a suit for the
remaindee.

  The grants in California, I am bound to say, are mostly perfect titles; that
is, the holders possess their property by titles that, under the law which
created them, were equivalent to patents from our Government; and those which
are not perfect—that is, which lack some formality, or some evidence of
completeness— have the same equity, as those which are perfect, and were and
would have been equally respected under the government which has passed away. Of
course, I allude to grants made in good faith, and not to simulated grants, if
there be any such, issued since the persons who made them ceased from their
functions in that respect.

  I think the state of land titles in -that country will allow the public lands
to be ascertained, and the private lands set apart by judicious measures, with
little difficulty. Any measure calculated to discredit, or cause to be
distrusted the general character of the titles there, besides the alarm and
anxiety which it would create among the ancient population, and among all
present holders of property, would, I believe, also retard the substantial
improvement of the country: a title discredited is not destroyed, but every one
is afraid to touch it, or at all events to invest labor and money in
improvements that rest on a suspected tenure. The holder is afraid to improve;
others are afraid to purchase, or if they do purchase at its discredited value,
willing only to make inconsiderable investments upon it. The titles not called
in question (as they certainly for any reason that I could discover do not
deserve to be), the pressure of population and the force of circumstances will
soon operate to break up the existing large tracts into farms of such extent as
the nature of the country will allow of, and the wants of the community require;
and this under circumstances and with such assurance of tenure, as will war-,
rant those substantial improvements that the thrift and prosperity of the
country in other respects invite.

  I think the rights of the Government will be fully, secured, and the interests
and permanent prosperity of all classes in that country best consulted, by no
other general measure in relation to private property than an authorized survey
according to the grants, where the grants are modern, or since the accession of
the Mexican government, reserving the overplus; or according to ancient
possession, where it dates from the time of the Spanish government, and the
written evidence of the grant is lost, or does not afford data for the survey.
But providing that in any case where, from the opinion of the proper law officer
or agent of the Government in the State, or from information in any way
received, there may be reason to suppose a grant invalid, the Government (or
proper officer of it) may direct a suit to be instituted for its annulment."

  In glancing at the heading of this chapter, we must ask the reader not to
indulge in the vain hope that a full history of the grants comprised within the
limits of what is known as Marin county will be found; such indeed, would be
beyond the limits of this work, even had we at hand the infinity of resources to
be found in the hundreds of cases which have arisen out of them. Our compilation
must of necessity be accepted in its crude form. We have striven to our utmost
capacity to produce some information which would combine both usefulness and
correctness, and to this end have relied chiefly on the information contained in
a legal work on whose title page is the legend: "Reports of Land Cases
determined in the United States District Court for the Northern District of
California. June Term 1853 to June Term 1858 inclusive, by Ogden Hoffman,
District Judge; San Francisco; Numa Hubert 1862." The first case we find on page
74 of Vol.:—

  THE UNITED STATES, Appellants, vs. THE HEIRS OF JUAN READ, claiming the Rancho
Corte de Madera del Presidio. Claim for one league of land in Marin county,
confirmed by the Board, and appealed by the United States. The land claimed in
this case is shown to have been granted to Juan Read by Governor Figueroa on the
second of October, 1834. The original title is produced, and the signatures duly
proven. The expediente—a traced copy of which is filed in the case—contains the
petition on which the grant and a record of the proceedings of the Territorial
deputation on the second of October, 1835, approving the concession previously
made by the Governor. It is also shown by documentary proof that judicial
possession of the granted land was given November 28, 1835. It is also shown
that previous to obtaining the grant, and subsequently until his death, the
grantee resided with his family on the land, and that since his decease his
family have continued to occupy the land. The case seems to present one of the
few instances where every requirement of the law has been fully complied with.
No reason is perceived by the court, or suggested on the part of the Appellants
for refusing to confirm the claim. A decree must therefore be entered affirming
the decision of the Board of Commissioners.

  JOSHUA S. BRACKETT, claiming part of the Rancho Soulajulle, Appellants, vs.
THE UNITED STATES. Claim for a half-league of land in Marin county, rejected by
the Board, and appealed by the claimant. The claim in this case is for a part of
the Rancho Soulajulle, originally granted by Governor Micheltorena to Ramon
Mesa. Various other claims have also been made for other portions of the same
Rancho, and the testimony in this case is by stipulation, agreed to be used in
those cases as if specially taken and filed in each. This claim was rejected by
the Board, not on the ground of the invalidity of the original title, but
because it did not appear from the mesne conveyances that the land claimed was a
part of the original tract granted to Ramon Mesa. The further evidence taken in
this Court removes that objection, and the only question that remains to be
decided is as to the validity of the original grant. The title given to the
interested party is produced, and although the evidence of the signatures of the
Governor is not as satisfactory as could have been wished, or as we have had a
right to expect from the facility with which Micheltorena's and Jimeno's
signatures could at any moment be proved in this city, yet as no opposing
testimony is offered on the part of the United States, I am inclined to believe
with the Board in considering it sufficient, taken with the other testimony in
the case, to establish the authenticity of the grant. Had the District Attorney
or law agent entertained any doubt of the genuineness of the grant, it is but
reasonable to suppose that evidence would have been offered to show that the
signatures affixed to the title of the grantee were forgeries. The illiterate
character of the witness himself repels the idea that he could have forged the
document, and no other person concerned in such a fraud would have trusted the
proof of its genuineness to the vague and unsatisfactory testimony of such a
witness. But the strongest testimony in confirmation of the claim is found in
the facts that the expediente is found in and duly produced from the archives,
and that the grantee has occupied and cultivated his land from the time of his
grant until the time he sold it to the various claimants now before this Court.
The conditions of the grant having thus been complied with, and the grant itself
appearing to be genuine, there is no obstacle to the confirmation of the present
claim, or to so much thereof as may be included within the limits of the
original grant.

  THE UNITED STATES, Appellants, vs. ANTONIO MARIA OSIO, claiming Angel Island.
The claim in this case is founded on a grant made by Governor Alvarado on June
11, 1839. The expediente is produced from the archives, and the genuineness of
the original grant fully established. The island which is the subject of the
grant appears to have been used almost immediately after the grant by the
claimant for the raising of cattle, horses, etc., a considerable number of which
he placed upon it. He also built upon it a small house, which was occupied by
his mayor domo. The claimant, although he did not personally reside upon the
island, frequently visited it; and on one occasion remained upon it three
months, superintending, among other things, the erection of a dam to form a
reservoir for the use of his cattle. His title to the land seems to have been
generally known and recognized, and the cattle upon it was marked with his
brand. He afterwards built three other houses and put a portion of the land
under cultivation, and at the time of the war, his cattle were used to the
number of five hundred. The only doubt which can be suggested with regard to the
validity of the claimant's title is, whether the Governor had a right to grant
islands upon or near the coast. But it appears that the grants of this and other
islands were made by the express direction of the Superior Government of Mexico;
and the Governor was enjoined to grant the islands to Mexicans in order to
prevent their occupation by foreigners, who might injure the commerce and
fisheries of the Republic, and who, especially the Russians, might otherwise
acquire a permanent foothold upon them. We agree with the Board in the opinion
that this express authority to make these grants removes all doubt on the
subject. The Board have unaimously confirmed this claim, and we see no reason
for reversing their decision. Their decree must therefore be affirmed.

  Antonio Maria Osio, claimant for Island of Los Angeles, in San Francisco
county, granted June 11, 1839, by Juan B. Alvarado to Antonio Maria Osio; claim
filed February 2, 1852, confirmed by the Commission October 24,1854, by the
District Court, September 10, 1855, and decree reversed by the United States
Supreme Court, and cause remanded, with directions to dismiss the petition, 23
Howard ,273.  Vide App., page 3, Hoffman's Reports.

  Bartolomi Bojorquez, claimant for Laguna de San Antonio, six square leagues in
Marin county, granted November 5, 1845, by Pio Pico to B. Bojorquez; claim filed
February 17, 1852, confirmed by the Commission October 12, 1853, by the District
Court September 10, 1855, and appeal dismissed November 24, 1856; containing
twenty-four thousand nine hundred and three and forty-two one-hundredths acres.
Vide App., page 7, Hoffman's Reports.

  Thomas B. Valentine, claimant for Arroyo de San Antonio, three square leagues
in Marin county, granted October 8, 1844, by Manuel Micheltorena to Juan
Miranda; claim filed February 17, 185S, and discontinued February C, 1855. Vide
App., page 7, Hoffman's Reports.

  Assignee of Bezer Simmons, claimant for Novato, two square leagues in Marin
county, granted April 16, 1839, by Juan B. Alvarado to Fernando Feliz; claim
filed February 24, 1852, confirmed by the Commission November 7, 1854, and
appeal dismissed December 16, 1856; containing eight thousand eight hundred and
seventy and sixty-two one-hundredths acres. Vide App., page 10, Hoffman's Reports.

  Camilo Ynitia, claimant for Olompali, two square leagues in Marin county,
granted October 22, 1843, by Manuel Micheltorena to C. Ynitia; claim filed
February 26, 1852, confirmed by the Commission December 18,1852, by the District
Court February 23, 1857, and appeal dismissed July 31,1857; containing eight
thousand eight hundred and seventy-seven and forty-three one-hundredths acres.
Vide App., page 10, Hoffman's Reports.

  Timoteo Murphy, claimant for San Pedro, Santa Margarita, and Las Gallinas,
five square leagues, in Marin county, granted February 14, 1844, by Manuel
Micheltorena to T. Murphy; claim filed February 26, 1852, confirmed by the
Commission December 22, 1852, and appeal dismissed November 18, 1856; containing
twenty-one thousand, six hundred and seventy-eight, and sixty-nine
one-hundredths acres. Vide App., page 11, Hoffman's Reports.

  Timothy Murphy, in behalf of the San Rafael tribe of Indians, claimant for
Tinicasia, one square league, in Marin county, granted in 1841, by M. G. Vallejo
to San Rafael tribe of Indians; claim filed February 28, 1852, rejected by the
Commission November 21, 1854, and for failure of prosecution appeal dismissed
April 21, 1856. Vide App., page 12, Hoffman's Reports.

  Joshua S. Brackett, claimant for Soulajulle, three square leagues, in Marin
county, granted March 29, 1844, by Manuel Micheltorena to Ramon Mesa; claim
filed May 20, 1852, rejected by the Commission April 17, 1855, confirmed by the
District Court March 3, 1856, and appeal dismissed August 7r 1857; containing
two thousand, four hundred and ninety-two, nineteen one-hundredths acres.   
Vide App., page 33, Hoffman's Reports.

  George N. Corn well, claimant for Soulajulle, one and three-quarters
square-miles, in Marin county, granted March 29, 1844, by Manuel Micheltorena
to-Ramon Mesa; claim filed May 20, 1852, rejected by the Commission April
17,1855, confirmed by the District Court February 23, 1857, and appeal dismissed
August 7, 1857; containing nine hundred and nineteen, and eighteen
one-hundredths acres.    Vide App., page 33, Hoffman's Reports.

  Pedro J. Vasquez, claimant for part of Soulajulle, ____ square leagues, in
Marin county, granted March 29, 1844, by Manuel Micheltorena to Ramon Mesa;
claim filed May 27, 1852, rejected by the Commission April 17, 1855, confirmed
by the District Court March 3, 1856, and appeal dismissed August • 7, 1857;
containing four thousand, four hundred and seventy three, and seventy-one
one-hundredths acres. Tide App., page 34, Hoffman's Reports.

  Luis D. Watkins, claimant for part of Soulajulle, one and three-quarters
square miles in Marin county, granted March 29, 1844, by Manuel Micheltorena to
Ramon Mesa; claim filed May 27, 1852, rejected by the Commission April 17, 1855,
confirmed by the District Court March 3, 1856, and appeal dismissed August 7,
1857; containing nine hundred and nineteen and eighteen one-hundredths acres.
Vide App., page 34, Hoffman's Reports.

  Martin F. Gormley, claimant for part of Soulajulle, one-half square league, in
Marin county, granted March 29,1844, by Manuel Micheltorena to Ramon Mesa; claim
filed May 27, 1852, rejected by the (Commission April 17,1855, confirmed by the
District Court March 3,1856, and Appeal dismissed March 7,1857; containing two
thousand two hundred and sixty-six and twenty-five one-hundredths acres.    Vide
App., page 34, Hoffman's Reports.

  William Reynolds and Daniel Frink, claimants for part of Nicasio, two and
one-half square leagues, in Marin county, granted August 1, 1844, by Manuel
Micheltorena, to Pablo de la Guerra and Juan Cooper; claim filed June 2, 1852.
(See below). Vide App., page 36, Hoffman's Reports.

  Henry W. Halleck and James Black, claimants for Nicasio, ten square-leagues,
in Marin county, granted August 18, 1844, by Manuel Micheltorena to Pablo de la
Guerra and Juan Cooper; claim filed June 14,1852, confirmed by the Commission
September 25, 1855, by the District Court March 9,1857,. and appeal dismissed
April 30, 1857; containing fifty-six thousand, six hundred and twenty-one and
four one-hundredths acres. Vide App., page 38, Hoffman's Repots.

  Edward A. Breed et al., claimants for Mission San Rafael, sixteen square
leagues, in Marin county, granted June 8, 1846, by Pio Pico to Antonio Sunol and
Antonio Maria Pico; claim filed July 26, 1852, and rejected by the Commission
September 11,1855.    Vide App., page 41, Hoffman's Reports.

  Hilario Sanchez, claimant for Temalpais or Tamalpais, two square leagues, in
Marin county, granted November 28, 1845, by Pio Pico to H. Sanchez; claim filed
December 13, 1852, and rejected by the Commission September 26, 1854.    Vide
App., page 67, Hoffman's Reports.
  Bethuel Phelps, claimant for Punta Reyes, eight square leagues, in Marin
county, granted March 17, 1836, by Nicolas Guiterrez to James Richard Berry;
claim filed January 22, 1853, confirmed by the Commission August 7, 1855, by the
District Court December 22, 1857, and appeal dismissed December 22, 1857.   
Vide App., page 72, Hoffman's Reports.

  Gregorio Briones, claimant for Las Baulines, two square leagues, in Marin
county, granted February 11, 1846, by Pio Pico to G. Briones; claim filed
January 31, 1853, confirmed by the Commission May 15, 1854, by the District
Court January 19, 1857, and appeal dismissed April 2, 1857; containing eight
thousand, nine hundred and eleven and thirty-four one-hundredths acres. Vide
App., page 74, Hoffman's Reports.

  Maria Teodora Peralta, claimant for Buacocha, two and one-half square leagues,
in Marin county, granted February 18, 1846, by Pio Pico to M. T Peralta; claim
filed February 28, 1853, and rejected by the Commission April 3, 1855. Vide
App., page 89, Hoffman's Reports.

  A. Randall, claimant for Punta de los Reyes, eleven square leagues, in Marin
county, granted November 30, 1843, by Manuel Micheltorena to Antonio M. Osio:
claim filed March 1, 1853, confirmed by the Commission January 9, 1855, by the
District Court, December 28, 1858, and appeal dismissed May 24, 1858; containing
forty-eight thousand, one hundred and eighty-nine and thirty-four one-hundredths
acres. Patented. Vide App., page 91, Hoffman's Reports.

  Jose M. Revere, claimant for San Geronkno, two square leagues, in Marin
county, granted February 12, 1844, by Manuel Micheltorena to Rafael Cacho; claim
filed March 1, 1853, confirmed by the Commission February 13, 1855, by the
District Court June 26, 1858, and appeal dismissed June 26, 1858; containing
eight thousand, seven hundred and one acres. Patented. Vide App., page 91,
Hoffman's Reports.

  Juan B. Alvarado, claimant for Nicasio, twenty square leagues, in Marin
county, granted March 13, 1835, by Jose Figueroa to Teodocio Quilajuequi et al.,
Indians; claim filed March 1, 1853, rejected by the Commission September 25,
1855, and appeal dismissed for failure or prosecution February 4, 1858.




Additional Comments:
Extracted from:

HISTORY OF MARIN COUNTY, CALIFORNIA;
INCLUDING ITS
Geography, Geology, Topography and Climatography;
TOGETHER WITH
A Full and Particular Record of the Mexican Grants; Its Early History and
Settlement, Compiled from the most Authentic Sources; Names of Original Spanish
and American Pioneers;

A Full Record of its Organization; A Complete Political History, including a
Tabular Statement of Office-holders since the Formation of the County;

Separate Histories of Bolinas, Nicasio, Novato, Point Reyes, San Antonio, San
Rafael, Saucelito, and Tomales Townships;

Incidents of Pioneer Life, and Biographical Sketches of its Early and Prominent
Settlers and Representative Men;
ALSO
An Historical Sketch of the State of California,
In which is embodied the Raising of the Bear Flag

ILLUSTRATED.
SAN FRANCISCO, CAL. 
ALLEY, BOWEN & CO., PUBLISHERS.
1880.


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