Page 3

 

Land Titles In San Francisco

And

The Laws Affecting The Same

 

 

On the second day of July, 1852, the City of San Francisco presented a petition and claim to the Board of Land Commissioners for the land within the following limits, to wit:  Being the bounded on the north and east of the water of the Bay of San Francisco, on the west by Pacific Ocean, on the south by a due east and west line, so as to include an area of four leagues of land.

 

The right and title of the City to the same rests upon either a grant by the Mexican Government prior to the occupation of California by the American forces, in 1846, or an implied relinquishment of title on the part of the United States Government by section 14 of the "Act to ascertain and settled private land claims in the State of California," and in which will be found in the Appendix of this volume.

 

The author is not aware that any absolute grants of territory was ever made by the former Governor to this City, although diligent search has been made, by himself and others, among the archives formally belonging to the Mexican Government, and now in the possession of the United States Surveyor General in California.  If such a grant was ever made, or if San Francisco, under some general law of Mexico, became entitled to such domain, or if by section 14 of the act above referred to, this city is to have the territory petitioned for confirmed to it, it is equally important to know the tenure by a which lands within those limits, and claimed under color of title, are held by the present occupants, and what portion of such lands are claimed, and by whom under what title.  To show this is the object of the present work; and to present the subject in a satisfactory manner, it will be necessary to give a short history of the condition of San Francisco and the laws by which it was governed, from its first establishment under the dominion of Spain to the present time, and some account also of the connecting links from the Supreme Authority to those in charge of the pueblos and missions, of which latter at this was one.

 

On the 30th of May, 1850, the Common Council of the City of San Francisco appointed the author of the present work Commissioner to ascertain and report to the City its right and title to property within and beyond its corporate limits.  Under this commission the author was employed for nearly a year in the investigation of the subject, and much of the matter contained in this volume was the result of that research and investigation.  A Report on the subject, and containing the original title to all lots within the corporate limits, which had been granted by any official authority, was made and published by order of the City Council.  Most of the copies of that Report were destroyed in the fire of May, 1851, and the flattering value that has been placed upon it as a book of reference, has induced the author to publish the present work, in which will be found all the valuable information published in the former book, and in addition, other matter which the author hopes will add to its interest as a book of reference.  But to the subject, and first, of the laws which formally governed:

 

     New Spain, of which California was a part, was governed by a Viceroy or Governor, appointed by the King, and the extent of his power and authority is shown by the following order: "We

 

 

Page 4

 

 

command and order are Royal Audiences of Peru and New Spain, and other subject and subordinate to the jurisdiction of Viceroys, and all Governors, Justices, subjects and vassals of ours, ecclesiastic and secular, of whatever state, condition, grade or dignity, to obey and respect them as persons representing us; to observe, fulfil and execute their orders and commands, whether verbal or in writing.  And to obey as if commanded by ourselves personally, all or by letter signed with our royal hand."*

 

By a Royal Regulation of October 15th, 1754, the necessity which had before existed of making application to the King for a confirmation of title to lands in the distant provinces, was abolished, and it was decreed, "That from the date of this, my Royal order, the power of appointing sub-delegate judges, to sell and compromise for the lands and uncultivated parts of the said dominions, shall belong thereafter exclusively to the Viceroys and Presidents of my Royal Audiences of those kingdoms.  But in regard to lands of community, and those granted to the towns for pasturage and commons, the change shall be made; the town shall still be maintained in the possession of them."

 

In the laws of Spain, compiled by order of Don Carlos IV., in 1805, comprising the orders, decrees, and royal resolutions down to 1804, the following is found in vol. 3, p.  382: "Our will and pleasure is, that the cities, towns and villages shall retain their rights, revenues and municipal domains, (propios,) and that no grants been made of them: wherefore we command that all grants of the same, or any part thereof, which we may make to any person, be of no value whatever."

 

Again, in same volume, p. 477: "We ordained that all the reservations, timber lands, lands and hereditaments belonging to the councils up our cities, towns and villages, with our kingdoms and seigneuries, which have been taken and occupied by any persons on their own authority or by virtue of any letters of ours, be forthwith restituted and restored to the said councils to which they belong; but we forbid such councils to work the same, or to sell or alien them, unless it be for the common advantage of said cities, towns or villages to which they belong."

 

In the founding of cities and settlements a liberal policy was pursued by Spain.  In the laws of the Indies, before cited, it was declared that "If the situation of the land be adapted to this founding of any town to be peopled by Spaniards, with a council of ordinary Alcaldes and Regidors;** and, if there be persons who will contract for their settlement, the agreement shall be made upon the following conditions: That within the prescribed time it shall comprise at least thirty heads of families, each of whom to possess a house, ten breeding cows, four steers, or two steers and two young bullocks, a breeding mare, a breeding sow, twenty breeding ewes from Castile, and six hens and a cock; he shall, moreover, appointed a priest to administer the sacraments, who, the first time, shall be of his choice, and afterwards according to our royal patronage; he shall provide the church with ornaments and articles necessary for divine worship; and he shall give bond to perform the same within said period of time; and if he fail in fulfilling his agreement, he will lose all that he may have built, worked, or repaired, which shall be applied to our royal patrimony, and incur the forfeiture of one thousand ounces of gold to our Chamber (camera); and if he should fulfil his obligations, there shall be granted to him four square leagues of territory, either in a square or lengthwise, according to the quality of the land, in the such a manner that, when located and surveyed, the four leagues shall be in a quadrangle, and so that the boundaries of said territory be at least five leagues distance from any city, town or village inhabited by Spaniards and previously settled, and that it caused no prejudice to any Indian tribe, nor to any private individual."***  And again: "Whenever particular individuals shall unite for the purpose of forming new settlements, and among them there shall be a sufficient number of married men for that purpose, license may be granted to them, provided there be not less than ten married men, together with an extent of territory or proportioned to what is stipulated: and we empower them to elect annually, from among themselves, ordinary Alcaldes and officers of the Council."****

 

*Laws of the Indies, Lib. 3. Tit. 3. Law 2.

**Regidors.---Members of the Municipal Council.

***Lib. IV. Tit. 5. Law. 6.

****Ib. Lib. IV. Tit. 5. Law 10.

 

 

 

 

Page 5

 

And in regard to the laying out of towns: “The Viceroys and Governors, being thereto authorized, shall lay out for each town or village which shall be newly founded and peopled, the lands and lots which they may want, and the same shall be granted to them as reservations (propios) without prcjudice to third persons. They shall transmit to us information of what they shall have laid out, that we may order the same to be confirmed.”

 

Such was one of the modes by which new towns and cities were commenced. Another, by which the distant parts of Spain were attempted to be colonized and settled, was the establish­ment of mtssions, whose first especial care and duty was to Christianize and bring under subjection the native Indians. This being done, the populating and settling of those parts became of easy and safe accomplishment. At an early day, the Viceroys of New Spain, carrying out this policy, authorized the establishment of missions in California, commencing with San Diego, and gradually proceeding further to the north. For the protuction of these establishments, presidios, with military commandants or captains, were formed near to the missions. To the priests was con­fided the spiritual, and to the commandants of the presidios, the temporal affairs of the settle­ments.

 

In a report on the subject of these missions, made by the Viceroy to the King, in 1793, he says “ It does not appear that any judicial formality has been observed for the designation of limits or boundaries of each mission; the extinguished order ‘‘ (meaning the Jesuits) ‘‘ established them arbitrarily, without any other rule than that ot a prudent consideration to the distance from one mission to another, in proportion as the spiritual conquests went forward; and this mode has continued the practice unto the present time, in all the peninsula.”

 

The priests of the missions, the soldiers of the presidios and the converted Indians for some­time constituted the only population of’ these establishments. Marriage between thc soldiers and Indian girls of the mission was encouraged, that a permanent population might be seeured—the intention of the Govcrnrnent being that these establishments should become the nucleus or embryo of future pueblos or towns. In the instructions of the Viceroy to the Commandants, dated August 17th, 1773, he says “ As the mission settlements are hereafter to become cities, care should be takcn in their foundation that the houses should be built in line, with wide streets and good market squares,” &c. Also, he says “ With the desire that population may be more speedily assured in the new establishments, I for the present grant the Commandant power to designate common lands, and also even to make individual concessions to such Indians as may most dedicate themselves to agriculture and the raising (of cattle, for, having property of their own, the love of it will cause them to plant themselves more firmly;” and, also, “ I grant the same faculty to the Commandant with respect to distributing lands to the other settlers, according to their merit and ability to improve.”

 

This is the first and earlicst authority that is found for the granting of lands within tbcse settlements, to individuals. In a letter from the Commandant General of thc Internal Provinces of the West to the Commandant of Califoinia, dated March 22d, 1791, he says “ In conformity with the opinion of the Solicitor of this Commandancia General, I have determined, in a decree of this date, that notwithstanding the provision madc in the 81st Article of the Ordinance for the establishment and instruction of Intendants, the Captains of presidios are authorized to grant and distribute house lots and lands to the soldiers and citizens, who may solicit them to fix their residences on. And considering the extent of four common leagues, measured from the centre of the presidio square, viz:  two leagues in every direction, to be sufficient for the now pueblos to be formed under the direction of said presidios, I have likewise deteminined, in order to avoid doubts and disputes in futurc, that said Captains restrict themselves hencefroward to the quantity of house lots and lands within the said four leagues, without exceeding in any manner said limits, leaving free and open the exclusive jurisdiction belonging to the Managers of the Royal Hacienda, respecting the sale, composition and distribution of the remainder of the lands in the respective district. And that this order may be punctually observed and carried into effect,

 

*Ib. Lib. IV. Tit. 13. Law 1.

 

 

Page 6

 

you will circulate it to the Captains and Commandants of the presidios of your province, informing mc of having done so.”

 

This, together with the law of the Indies on the subject of founding new cities, hereinbefore quoted, appears to have been the regulation in regard to the limits of the pueblos, and the early authority for making grants within those limits. By a late law, Ayuntamientos or Town Councils were authorized to be formed for the government of the pueblos. The decree of the Spanish Cortes of 23d of May, 1812, says:

 

“ The General and Extraordinary Cortes, convinced that it is equally important to the welfare and tranquility of families and the prosperity of the nation, that Ayuntamientos be established in such towns where it is proper that they should be instituted, and which have not hitherto enjoyed the benefit thereof, as well as to avoid the doubts which might arise in the execution of what has been prescribed on this subject in the constitution, and to establish a uniform rule for the appointment, form of election, and the number of its members, decree as follows:

 

“ 1. Every town which has no Common Council, and the population of which does not amount to one thousand souls, and which, on account of the peculiar condition of its agriculture, industry or population, requires a Common Council, will make the same known to the Deputation of the Province, in order that by virtue of this information they may apply to the Government for the requisite permission.

 

“ 4. As it cannot fail to be proper that there should exist between the Government of the town and its inhabitants, such proportion as is compatible with good order and its better adminis­tration, there shall he one Alcalde, two Regidors,* and one Procurator Syndie,* in all towns which do not have more than two hundred Regidors one Alcalde, four Regidors and one Procurator, in those the population of which exceeds two hundred, but does not exceed five hundred inhabitants; one Alcalde, six Regidors and one Procurator in those which possess five hundred, but the population of which does not amount to one thousand inhabitants. Two Alcaldes, eight Regidors and two Procurator Syndies, in towns having from one thousand to four thousand inhabitants, and the number of Regidors will he augmented to twelve in those towns which have more than four thousand inhabitants.”

 

In a decree of the year subsequent it was ordered as follows:

“The General and Extraordinary Cortes considering that the reduction of common lands to private ownership, is one of the measures most imperiously required for the weal of the pueblos, and the encouragement of agriculture and industry, and wishing at the same time to provide, with that class of lands, some help to the public necessities, a reward to well meriting defenders of the country, and succor to citizens who are not proprietors, decree:

 

“1. All vacant or royal lands, and lands for municipal uses, both in the peninsula and adja­cent islands, and in the provinces beyond sea, except the commons necessary to villages, shall be reduced to private property, provided that, in the lands for municipal uses, their annual rents shall be supplied by the most proper means, which, proposed by the respective provincial deputa­tion, shall be approved by the Cortes.

 

“2. In whatever mode those lands shall be distributed, it shall be in full and separate ownership, so that their owners may enclose them (without prejudice to the paths, crossings, watering places and servitudes,) enjoy them freely and exclusively, and appropriate them to the use or cultivation to which they are adapted; but they shall not be able to entail them, nor to transfer them, at any time, or in any manner, in mortmain.

 

“17. The measures necessary for these concessions shall be made without any charges, by the Ayuntamientos, and the Provincial Deputations shall approve them.”

 

There had been no change in the foregoing laws and decrees up to the year 1821, when Mexi­co threw off the yoke of Spain and declared itself a free and independent republic. The federa­tion was divided into states and territories, Upper California being named among the latter, and

 

__

*Regidor---a Town Councilman.

+Procurator Syndic---an Attorney.

 

 

Page 7

 

7

the legislative power vested in a General Congress which had the exclusive right to grant laws and decrees for the interior administration of the territories. The first established decree on the sub­ject of the colonization of the territories was of the eighteenth of August, 1824, and was in the words following:

 

“The Sovcteign General Constituent Congress of the United Mexican States has held it proper to decree:

 

 “1. The Mexican nation offers to foreigners who shall come to establish themselves in its territory, security in their persons and in their property; provided they subject themselves to the laws of the country.

 

‘‘2. Those lands of the nation, which, not being private property, nor belonging to any corporation or town, may be eolonized.

 

“3. To this effect the Congress of the States shall form with the least delay laws or rules of colonization for their respective limits, conforming themselves in all respects to the constitutive act, the general constitution, and the rules established in this law.

 

“4. Those territories comprehended within twenty leagues of the boundaries with any for­eign nation, or within ten leagues of the sea coast, shall not be colonized without the approbation previously obtained from the supreme general executive power.*

 

  “5. If for the defence or security of the nation the government of the federation should find it expedient to make use of any portion of those lands to construct warehouses, arsenals, or other public edifices, it may do so with the approbation of the General Congress, or in its recess with that of the Government Council.

 

“6. There shall not before the expiration of four years from the publication of this law, be imposed any duty on the entrance of foreigners, who shall come to establish themselves for the first time in the nation.

 

“7. Prior to the year 1840, the General Congress shall not prohibit the entrance of foreign­ers to colonize, except imperious circumstances oblige it to do so with respect to the individuals of some other nation.

 

“8. The Government, without prejudicing the objects of this law, shall take the measures of precaution which it may judge proper for the security of the federation with respect to foreigners who come to colonize.

 

‘‘9. In the distribution of lands, Mexican citizens are to be preferred, and between them no distinetion shall be made, except such only is is due to special merit amid services rendered to the country, or in equality of circumstances, residence in the place to which the lands to be distributed are pertinent.

 

“10. Military persons, who agreeably to the proffer of 27th March, 1821, may he entitled to lands, shall be attended to in the States, on exhibiting the diplomas which to this effect the supreme executive authority shall deliver to them.

 

“11. If by the decrees of capitalization according to the probabilities of life, the supreme executive power should think proper to alienate some portions of the land, in favor of any officers of the federation, either civil or military, it may do so of the vacant lands in the territories.

 

‘‘12. It shall not be permitted to unite in one hand as property more than one league square of five thousand varas+ of irrigable land, four in superficies of farming land not in irrigable, and six in superficies for stock raising.

       “13. The new settlers shall not transfer their property in mortmain.

 

‘‘14. This law guarantees the contracts, which empresarios++ shall make with families whom they bring at their own expense, provided that they be not contrary to the laws.

 

 “15. No one who by virtue of this law shall acquire lands in ownership, shall be able to preserve them, being domiciliated without the territory of the Republic.

___________________________

*To Micheltorenna who succeeded Alvarado as Governor, power was given by the General Government to make grants within those limits as well as beyond.  His instructions and powers a will be found in the appendix.

 

*Vara—Of Spain was 3 English feet of Mexico. 32 4-10 English inches. See U. S. Ordinance Mannal of 1850.

 

+Empresarios, those who introduce at least 200 families.

 

 

Page 8

 

“16. The Government, conformably to the principles established in this law, shall proceed to the colonization of the territories of the Republic.”

In continuation of the decree thus made and to carry out its intentions more in detail, certain regulations were adopted on the 21st of November, 1828, of which the following is a translation:

“It being provided in the 16th article of the general colonization law of the 18th August, 1824, that the Governmcnt, in conformity with the principles established in said law, shall pro­ceed to the colonization of the territories of the Republic; and it being desirable, in order to give said article the most punctual and exact fulfilment, to dictate some general rules for facilitating its execution in such cases as may occur, his Excellency has seen fit to determine on the following articles:

“1st The Governors of the territories arc authorized (in compliance with the law of the General Congress of the 18th of August, 1824, and under the conditions hereafter specified,) to grant vacant lands in their respective territories, to contractors (empresarios), families, or private persons, whether Mexicans or foreigners, who may ask for them for thc purpose of cultivating or inhabiting them.

        "2d. Every pcrson soliciting lands, whethcr he be an empresario, head of a fmiily, or pri­vate person, shall address to the Governor of the respective territory, a petition setting forth his name, country, profession, the number, description, rcligion, and other circumstances of the fa­milies, or pcrsons with whom he wishes to colonize, describing, as distinctly as possible by means of a map, the land asked for.

‘‘ 3. The Governor shall proceed immediately to obtain the necessary information whether the petition embraces the conditions required by the said law of the 18th August, both as rcgards the land and thc candidate, in order that the petitioner may at once be attended to, or if it be preferred, the respective municipal authority may be consulted, whether there be any objection to making the grant.

  “ 4th. This being done, the Govcrnor will acccdc or not to said petition, in exact conformity to the laws on the subject, and especially the before mentioned one of the 18th August, 1824.

“ 5th. The grants made to families or private persons, shall not be held to be definitively valid without the previous consent of the Territorial Deputation; to which end the respective documents (cxpedientcs,) shall be forwarded to it.

“ 6th. When thc Governor shall not obtain the approbation of the Territorial Deputation, he shall report to the Supreme Government, forwarding the nccessary documents for its decision.

“ 7th. The grants made to empresarios for them to colonize with many families shall not be held to be dcfinitively valid until the approval of the Supreme Government bc obtained, to which the necessary documents must be forwarded, along with the report of the Territorial Deputation.

‘‘ 8th The definitive grant asked for being made, a document signed by thc Governor shall be given, to scrve as a title to the party interested, whercin it must be stated that said grant is made in exact conformity with the provisions of the laws in virtue whereof possession shall be given.

        ‘‘ 9th The ncccssary record shall be kept in a book prepared for the purpose, of all the peti­tions presented and grants made, with the maps of the lands granted, and a circumstantial report shall be forwarded quarterly to the Supreme Government.

"10^th. No stipulation shall be admitted for a new town, except the contractor bind himself to present, as colonists, at least twelve families.

 ‘‘11th. The Governor shall designate to the now colonists a proportionate time within which he shall be bound to cultivate or occupy the land on the terms, and with the number of persons or familics which he may have stipulated for; it being understood that if he does not comply thc grant of the land shall remain void. Nevertheless, the Governor may revalidate it in proportion to thc part which the party may have fulfilled.

“12th Every new colonist, after having cultivated or occupied the land agreeably to his stipulation, will take care to prove the same before the municipal authority, in order that, the necessary record being made, he may consolidate and secure his right of ownership, so that he may dispose freely thereof.

 

 

Page 9

 

“13th. The union of many families into one town, shall follow, in its formation, interior government and policy, the rules established by the existing laws of the other towns of the repub­lic—special care being taken that the new ones shall be built with all possible regularity.

      “14th. The minimum of irrigable land to be given to one person for colonization shall be two hundred varas square. The minimum of land not irrigable shall be eight hundred varas square and the minimum for breeding cattle shall be twelve hundred varas square.

      “15th. The land given for a house lot shall be one hundred varas.

“16th. The spaces which may remain between the colonized lands may be distributed among the adjoining proprietors who shall have cultivated theirs with the greatest application, and have not received the whole extent of the land allowed by the law; or to the children of said proprietors, who may ask for them, to combine the possessions of their families; but, in this respect, particular attention must be paid to the morality and industiy of the parties.

“17^th. In those territories where there are missions, the lands oecupied by them cannot be colonized by them at present, nor until it is determined whether they are to be considered as the property of the establishments of the neophytes catechumens,* and Mexican colonists.”

These were the decrees to which the Territorial Governors and Legislative Bodics were sub­ject, and by which they were to be guided in the scttlement of the territories and the disposal of land within their limits. They are found referred to in thc Expedienties on file among the Gov­ernment archives, as late as June, 1846, and it is therefore supposed that they werc in full force when possession was taken of California by the United States forces, and the American flag raised in July, 1846.

It will be seen, by reference to the 17th section of the act of 1828, that the missions were not to be included in the lands to be colonized by the Territorial Authorities until it could be de­termined whether they were the property of those establishments.

San Francisco was, at this time, one of the missions, being sometimes known by the name of San Francisco de Assis, and sometimes by that of Dolores; having been established,as appears from a report made by the Viceroy of New Spain to the King, in 1793, on the 9th day of October, 1776, in latitude 37[degrees] 5`.

Whatever may have been originally the limits of the Mission of San Francisco, they were from time to time reduced by grants of portions of the land to individuals. Within the limits now claimed by this city there had been no grants made prior to the Act of Secularization, passed by the Mexican Congress on the 17th of August, 1833; and by which the mission lands of Cali­fornia were authorized to be secularized, and the establishments themselves to be converted into pueblos. By this change, the lands so secularized became subject to the general colonization law of August 18th, 1824, and of November 21st, 1828, and were authorized to be granted in the same manner as the other vacant lands of the territory. The decree of the Mexican Con­gress, referred to, was as follows:

ART 1. The Government will proceed to secularize the missions of Upper and Lower California.

ART 2. In each of said missions a parish shall be established under the charge of a parish priest of the secular clergy, with a salary of from $2,000 to $2,500 per annum, at the discretion of the Government.

ART. 3. These parish curates shall not exact any emolument for marriages, baptisms, burials, or any other religious functions. With respect to fees of ceremony, they may receive such as shall be expressly stipulated in the tariff to be formed for that object, with as little delay as possible, by the reverend bishop of the diocese, and approved by the Supreme Government.

ART. 4. The churches which have hitherto served the different missions, and the sacred vessels, ornaments, and other appurtenances now belonging to them, shall be assigned to those new parishes, and also such buildings annexed to the said churches as the Government may dcem necessary for the use of said parish.

 

* Neophytes catechumens was a term applied to the newly converted Indians.

 

 

Page 10

ART. 5 The Government will order a burial ground to be erected outside of each parish.

ART. 6 There shall be $500 per annum assigncd to each parish as a donation for religious worship and servants.

ART. 7 Of the buildings belonging to each Mission, the most appropriate shall be designated for thc habitation of the curate, with the addition of a lot of ground, not exceeding two hundred varas square, and the remaining edifices and shall be specially adjudicated for a court house, preparatory schools, public establishments and work shops.

 

ART 8. In order to provide quickly and efficaciously for the spiritual necessities of both Californias, a vicar generalship shall be established in the capital of Upper California, the jurisdiction in of which shall extend to both territories; and the reverend diocesan shall confer upon its incumbent the necessary facilities as fully as possible.

ART. 9 For the dotation of this vicar generalship, $3,000 per annum shall be assigned, but the vicar shall be at all the expenses of his office, and not exact, under any title or pretext, any fee whatever.

ART 10. If, for any reason, this vicar generalship shall be filled by the parish curate of the capitol of any other parish in those districts, said curate shall receive $1,500 yearly, in addition to the donation of his curacy.

ART 11. No custom obliging the inhabitants of California to make oblations, for whatever pious uses, although they may be called necessary ones, can be introduced.

ART 12 The Government will procure that the reverend diocesan himself concur in carry­ing into effect the object of this law.

ART 13 When those new curates are named, the Supreme Government will gratuitously furnish a passage by sea for them and their families, and, besides that, may give to each one from $400 to $800 for their journey by land, according to the distance and the family they take with them.

ART 14. Government will pay the passage of the missionary priests who return to Mexico; and in order that they may comfortably reach their convents by land, it may give to each one froiti $200 to $300, and, at its discretion, what may be considered necessary for those to leave the Republic who have not sworn to the independence.

ART 15. The Supreme Government will provide for the expenses comprehended in this law, out of the product of the estates, capitals, and revenues at present recognized as the piety fund of the Missions of California."

 

To carry out the intentions of this law, and in accordance with the format usage of Spain in the formation of pueblos hereinbefore referred to, and which does not seem to have been abolished, the Territorial Deputation of California, on the 6th day of August, 1834, passed an Act containing the following articles:

"1. The Ayuntamientos shall make application, through the usual channels, requesting lands to be assigned to each pueblo for egidos* and propios. +

 "2. The lands assigned to each pueblo for propios shall be subdivided into middling sized and small portions, and may be rented out or sold at public auction, subject to an emphiteutic rent or tax; the present possessor's of lands belonging to the propios will pay an annual tax, to be imposed by the Ayuntamientos—the opinion of three intelligent and honest men being first taken.

"3. For the grant of a house lot for buildings on, the parties interested shall pay six dollars

and two rials for each lot of one hundred varas square, and in the same manner for a larger or smaller quantity, at the rate of two rials for each vara front."

On the 9th of the same month, Jose Figueroa, then Governor of California, issued the following as the regulations to be observed in carrying out the secularization of the Missions:

"ART. 1 The Governor, agreeably with the spirit of the law of August 17th, 1833, and with the instructions which he has received from the Supreme Government, will, with the co-

 

 

Page 11

 

operation of the prelates of the missionary religion, partially convert into pueblos the Missions of this tcrritory, beginning with the next month of August, and commencing at first with ten mis­sions and afterwards with the others

      "ART. 2. The Missionary religions functionaries will be exonerated from the administration of the temporalities, and will confine themselves to matters appertaining to the spiritual admin­istration, until the formal division of parishes be made, and the Supreme Government and dioce­san provide Curates.

“ART. 3 The Territorial Government will reassume the administration of temporalities, in the directive part, according to the following basis:

“ART. 4. The Supreme Government will, by the most speedy mode of communication, be requested to approve these provisional regulations.

       “ART. 5 To every individual, the head of a family, and to all those above twenty-one years of age, although they have no family, a lot of land, whether irrigable or not, of not exceeding 400 varas square, nor less than 100, shall be given, not of the common lands of the missions, and, in community, a sufficient quantity of land shall be allotted them for watering their cattle. Common lands shall be assigned to each pueblo, and, when convenient, municipal lands also.

“ARTICLES 6 and 7 relate to the distribution of the moveable property, one-half of same being reserved.

      “ ART. 8. The remainder of all the lands, landed property, cattle, and all other property, will remain under the care and responsibility of the mayordomo, or other officer, whom the Gov­ernment may name, at the disposal of the Supreme Federal Government.

      “ART. 9. From the common mass of this property, the subsistence of the Missionary Padres, the pay of mayordomos and other servants, the expenses of religious worship, schools, and other objects of police and ornament, shall be provided.

       “ART. 10. The Governor having under his charge the direction of temporal affairs, will determine and regulate, according to circumstances, all the expenses necessary to be laid out, as well for the execution of this plan as for the conservation and augmentation of this property.

       “ART. 11. The Missionary Minister will select the locality in the mission which may best suit him, for his own habitation and that of his servant and attendants, and he shall be furnished with the necessary furniture and implements and theh.

“ART. 12 provides for the care of tIme library and church furniture.

  “ART. 13. General inventories shall be made of all property on hand in each mission, with due separation and explanation of the different branches of the debit and credit accounts, and all kinds of papers relating to the amounts owed by and to the mission, which documents and accounts shall be forwarded to the Supreme Government.

        “ART. 14. The political government of the pueblos shall be organized in perfect conformity with the existing laws. The Government will give the necessary instructions to have Ayuntamientos established and elections made.

   “ART. 15. The economical government of the pueblos shall be under the charge of the Ayuntamientos but as far as regards the administration of justice, in litigated matters, they will he subject to the Primary Judges of the nearest towns constitutionally established.

ARTICLES 16 and 17 required the emancipated Indians to continue, for the present, their labors in the cultivated lands which remain undisposed of, and their personal services to the Mis­sionary Priests.

ARTICLES 18 and 19 prohibit the alienation of lands or sale of cattle by the Indians, under penalty of forfeiture, and provide that the lands of persons dying without heirs shall revert to the nation.

  “ART. 20. The Governor may name such Commissioners as he shall see fit, to carry this plan and its incidents into effect

“ART. 21. The Governor is authorized to resolve any doubts or matters which may arise, relative to the execution of these regulations.

 

Page 12

 

ART, 22 prohibits the slaughtering of cattle in large numbers by the Missionary Fathers, before these regulations are put in force.

“ ART. 23. The debts of the missions shall be paid, in preference, out of the common mass of the property, at the time and in the manner that the Governor shall determine. And in order that these regulations be exactly complied with, the following rules shall be observed.”

These rules, which are twelve in number, point out, more particularly, the mode of executing the foregoing orders. By the 9th and 10th it is provided that rancherias, situated at a distance from the missions, and containing more than twenty-five families, may, if they choose, form a separate pueblo. Those which do not contain that number, form a ward or district, and belong to the nearest pueblo. The remaining regulations relate to the inventories to be taken, of all the real aid personal property of the mission establishments, the conduct of the Commissioners in the discharge of their duties, the measures to be adopted in relation to the Indians, the distribution of lots for cultivation, farming implements, seeds, &c , the payment of the debts, and the appointment of mayordomos.

On the 3d of November, of the same year, the Legislature, in extra session, confirmed and amended, in some unimportant particulars, the foregoing regulations, and, on the same day, de­creed that “the Governor should direct the Partido of San Francisco to proceed to an election of an Ayuntamiento who should reside in the presidio, and should be composed of one Alcalde, two Regidors, and one Sindico, being regulatcd according to the constitution and the law of the 10th July, 1830. The Ayuntamiento should, in the shortest time, mark out the limits of its munici­pality, and should rcduce to its political jurisdiction, the neighborhood of the population.”

An Ayuntamiento was formed, but did not continue to reside at the presidio, as the proceed­ings of that body of the subsequent year are dated at the ex-mission.

There is no evidence that the above decree was complied with, so far as the marking the limits of this municipality is concerned, nor that there werc ever any limits or boundaries formally as­signed to the town of San Francisco. What its limits would have been, or what extent of ter­ritory it would have been entitled to as a pueblo, is not known, unless the old law of Spain in regard to the founding of cities was regarded as in force, in which case four leagues was the amount of land authorized to be granted. It is evident that as late as May 1st, 1844, there were no fixed nor determined limits, for in a gran and t made on that day by Micheltorenna to Francisco and Ramon Haro, of the Potrero of San Francisco, (mentioned in Schedule A,) the following language is used:  ‘‘I have resolved to permit them to occupy the Potrero mentioned, subject­ing themselves to the measurement which shall be made of the egidos of the establishment of San Francisco."  By this it appears that the lands of the town had not been marked out.

 

The land described lies between the old mission buildings and the Bay of San Francisco, and  is bounded on the north by the ‘‘ Estero de la Peninsula de San Francisco."

     After the act of secularization in the Territorial Deputation, and also and also the Governor of the Territory, made grants of land in what was called the Ex-Mission of San Francisco, sometimes the Pueblo of San Francisco, and sometimes the Pueblo of Delores, all of these names being applied to indicate the district comprehended within the former mission bounds.  Down to the 22d of September, 1835, no grants of land within that district were made by any of the local authorities.

 

The first house built in San Francisco, or Ycrba Buena as it was then called, was erected by , Jacob P. Leese, in 1836, on the west side of what is now Dupont street.  The cove upon which this city now stands, was then unoccupied, had never been surveyed, and was only used as a a convenient place of landing from the ships which occasionally came into the bay for grain,, hides and tallow.  Still the location was looked upon by the Mexican Government as a desirable one for a town, and one where a town would be located and surveyed as soon as population should begin to be formed there.  At that time the population of the mission, (exclusive of Indians,) was only about sixty souls. At the presidio there were about fifteen soldiers, under command of Gomazindo Flores, commandante Estudillo was Alcalde of this jurisdiction, and at the Mission was die municipality, and ,all business connected with the government of the same, was there transacted.

 

 

Page 13

 

 

The house erected by Mr. Leese, (who was an American,) was completed on the evening of the 3d day of July, 1836, and on the following day, the 4th, by previous arrangement, a celebra­tion of American Independence was held at the house with cordiality and enthusiasm by Mr. Leese, his brother-in-law, General Vallejo, and two or three American captains who happencd to be at that time in the harbor. Happy omen of the destiny of the country!

About this period, Jose Joaquin Estudillo applicd to the Legislature for a grant of 200 varas in Yerba Buena. The application was referred to the Committee on Municipal Lands, who reported in favor of granting him a lot, but not to exceed the number of varas allowed by Article 15 of the Regulations of Colonization, which was 100 varas square. Senor Alvarado, at that time a member of the Territorial Assembly, requested that, in order to stimulate the citizens of that place to form a population, authority might he given in general to the Ayuntamiento of San Francisco to grant house lots at a distance of 200 varas retired from the beach; and submitted the following, which was approved and passed:

“ The Ayuntamiento of San Francisco may concede the said house lot, at a distance of 200 varas retired from thc shore, and may permit other citizens to establish themselves there within the same restrictions conforming to the general order of the town."

Under this authority, grants were subsequently made by the local authorities, without prior application to the Governor or Territorial Deputation, except in those cases where the land was within the 200 varas of the beach, or was greater in quantity than they were authorized to grant. The restriction named in the Act last referred to, was no doubt in force as late as the 20th of April, 1846; for, in reply to a petition of Nathan Spear, made April 19th, 1846, for a grant of 50 varas on the beach in front of his house in Yerba Buena, the Prefect says: “The undersigned has no authority to make the above mentioned grant, as it is near the border of the water.”

On the 20th of March, 1837, a new law for the interior Government of the Departments in the was passed by the Mexican Congress. Those parts, which refer to the pohtical officers, the mode of their appointment, and their authority, were in substance the following:

    "The interior government of the dcpartment shall be under the charge of the Governor, Departurental Legislature, Prefects and Sub-Prefects, Ayuntamiento, Alcaldes and Justices of the Peace.” The Governor was to be appointed by the President.

It was the duty of the Governor “to appoint the Prefects, approve the appointment of Sub-Prefects of the Department, confirm that of Justices of the Peace, and to remove any of these functionaries, having first the opinion of the Departmental Legislature respecting such removal."

It was also authorized that ‘‘in cases of necessity or four motives of public utility he might in concert with the Departmental Legislature grant permission to the Ayuntamiento or authorities in charge of the administration and expenditure of municipal funds, to alienate certain property be­longing to the been a simple funds; and any cession donation or contract made without this requisite was null and void.”

The Departmental Legislature was to be composed of seven individuals to be elected, and whose duty it was “to pass laws relative to taxes, public education, industry, trade and municipal administration."

 

In each district there was to be, a Prefect named by the Governor and confirmed by the General Government, and to remain in office four years. It was his duty to take care of public order and tranquility in his district with entire subjection to the Governor; to publish without delay, enforce and cause to be enforced, the laws and decrees of Congress which he might receive from the Governor, and circulate them in the towns of the district; to observe and cause to be observed, the decrees and orders of the General Government, the resolutions of the Departmental Legislature and of the Governor. Also, by his own authority and agreeable to the laws, to regu­late the distribution of common lands in the towns of the district, providing no lawsuit was pending in the tribunals respecting them—the parties interested having the right to appeal to the Governor. Also, to cause the Sub-Prefects, Ayuntamiento and Justices of the Peace to comply faithfully with their respective obligations, and see that they did not exceed their authority. In the administration and expenditure of the funds of the towns he could exercise the supervision

 

 

Page 14

 

 

which might be granted to him by the ordinances of the Ayuntamiento. He could also appoint Sub-Prefeets, sending the appointments to the Governor to obtain his approval. He could name the Justices of the Peace of the District, to be proposed by the Sub-Prefects of the different towns, subject likewise to the approval of the Governor.

The Sub-Perfects were subject to the same obligations of the Prefects in their respective localities, and had the same faculties, but in all their official duties were subject to the direction of the Perfect of their district.

The capital the department, ports with a population of 4000 inhabitants, interior towns of 8000 inhabitants, towns which had Ayuntamiento prcvious to 1808, and those to whom this right is given by special law, were entitled to Ayuntamiento or Town Councils, which officers were to be elective. In order to form a quorum for the transaction of any business more than one-half of the members were required to bc present.

The number of Alcaldes, Regidors and Sindicos should be fixed by the Departmental Legislature in concert with the Governor, but the first should not exceed six, the second to twelve and the third two.

 

The Alcaldes were to be removed every year, half of the Regidors the same, and when there were two Sindicos, one of them ; the first appointed to be first removed. Where there was but one Sindico it was required that he should be changed every year.

The Ayuntamientos, subject to the Sub-Prefects, and through them to the Prefects and Gover­nor, were charged with the police, health, comfort, ornament, order and security of their respective jurisdiction; and were required, whenever called upon by the Prefect, Sub-Prefect and Alcaldes, to render every assistance toward carrying into execution the laws, decrees and orders and the pre­servation of public order. They had the administration and expenditure of the municipal funds to manage, being guided by the ordinances relating thereto and having in view the expenses ap­proved by Government Within the first two months in the year they were required to remit to the Sub-Prefect, or in default of him to the Prefect, that he might send to the Governor an ac­count with vouchers of the total amount of municipal funds and of the direction given to them during the preceding year. The mal-adininistration of the funds and the expenditure thereof in a manner not designated by the ordinances of the Ayuntamientos, or which had not obtained the approbation of Government, involved the pecuniary and personal responsibility of each of its members who should prove culpable in its management, or who should have given their votes in the resolutions of said corporation; but those not voting for such resolutions were free from responsibility.

 

The duties of Alcaldes were to take care of good order and public tranquility in the places of their usual residence. Also, to watch over the execution and fulfilment of the police regulations, laws, decrees and orders which might be communicated to them by the sub-Perfects, or, in their defect, by the Prefeets, and to circulate them duly to the Justices of the Peace of the municipality.

     They were also to assist and have a vote at the cession of the Ayuntamientos, and to preside over them according to the order then appointments, when neither the Prefect nor sub-Prefect assisted, and when presiding their vote was to be decisive.

     Justices of the Peace were to be named by the Prefect of the district on the recommenda­tion of the Sub-Prefect, and were to be established in all the towns and villages of the Department; their number in any place to be determined by the Departmental Legislature and Governor.

In places of one thousand inhabitants or more, they had, under subjection to the Sub-Prefect and through him to the superior authorities, the same faculties and obligations as the Ayuntamientos but in the management or supervision of municipal funds were restricted to what money to be established in the ordinances to be made by the Departmental Legislature.

The channels of communication established by this law were not to be deviated from except in extraordinary circumstances, or in case of complaint against some functionary through whose hands the communications ought to be forwarded.

 

 

Page 15

 

 

The laws which organized the economic-political Government of the Department were de­clared abolished.

By this law the pueblos of California were governed until the country was taken by the American forces in 1846.

In the spring of 1839, the Governor of the Territory, Alvarado, directed the Alcalde at the mission, Francisco Haro, to cause a survey of Yerba Buena to be made, and to lay out streets and lots, and in the fall of the same year, under this direction, Juan Vioget, a surveyor, made the first survey and plan of Yerba Buena. That survey took in that portion of the present city which lies between Pacific street on the north, Sacramento street on the south, Montgomery street on the east and Dupont street on the west, besides three one hundred vara lots on the west side of Dupont street and two one hundred vara lots on the south side of Sacramento street. After this survey Wm. Hinckley was elected Alcalde, and the Alcalde and Ayuntamientos then and afterwards held their sittings in Verba Buena.

     In a book found in the Recorder’s office of this County, and containing memoranda of grants made by Guerrero, Hinckley, Jesus Noe and other Mexican functionaries, is found the following order:

“Prefecture of the First District. The Senior Notary of the despatches of the Government of this Department, bearing date the 16th of the present, tells me what I copy.

“ ‘ When the Senior Prefect, Don Jose Castro, made a visit to the points of the north, he had instructions from the Government on various matters, and in them it was ordered that full power was given to grant house lots to persons in the establishment of Dolores. But they should not exceed the number of fifty varas. This was the disposition and now it is renewed, because his Excellency has seen the note which that Prefecture directed to this Secretaryship in January of this year, and his Excellency orders mc to say to you that you may notify the Justice of the Peace of San Francisco, that in making the grants of house lots, they shall be in as good order and arrangement as possible, and as the situation of the place may require, in order that the shorts and plazas which may be formed may have, from the beginning, proper uniformity and harmony.’

“ I communicate it to you for your information and fulfilment, and as the contents of his communication which treats upon this subject. God and Liberty!

        “April 23d, 1841                                       SEN. JUAN DE CASTRO

JOSE F. CASTRO.

"Sr. Jues de Paz de San Francisco"

 

Subsequent to that order the local authorities of San Francisco made grants of fifty vara lots, and refused applications for larger lots for the reason assigned that the .Justice had no authority to grant more than fifty varas. The petition of Robert T. Ridley, for one hundred varas, mentioned in Schedule A, as granted April 2d, 1846,by Jose de la Cruz Sanches, Jues de Paz, was addressed to the Prefect for the reason stated in the petition that “the Justice has no power to grant more than fifty varas.’ Upon the order of the Prefect for Justice subsequently made the grant. The grant by Francisco Sanchez, Jues de Paz, to Francisco Guerrero made November 15th, 1843, states that it is ‘‘for fifty varas, as that is the most the law will allow.”‘  The grant also by the same Justice to Peter T Scherrback of date May 1st, 1842, was made by order of the Governor on a petition addressed to him, stating that "the Justice says he has no power to grant," to which is annexed the reply of the Governor : ‘‘ The Justice of the Peace has the power to grant fifty vara lots."

The conclusions to be derived from the foregoing data are:

1st That by the laws of Spain, the extent of land to be granted to any municipality or pueblo on its formation was four leagues.

2d That the earliest authority to make grants of land in California was that given by the Viceroy of New Spain to the Commandants of the Interior in Aug , 1773.  The next being the order from the Commandant General to the Commandant of California, in March, 1791, authorizing Captains of presidios to grant lots to settlers within the limits of four leagues.

 

 

Page 16

 

 

3d. That by a law of Spain of 1812, Ayuntamientos were directed to be formed for the gov­ernment of towns; and by decree of the year following were authorized to make concessions of lands reducing them to private ownership.

4th. That after the independence of Mexico, upon the secularization of the missions in 1833, said missions became subject to the general colonization laws of Mexico of 1824 and 1828, and to such of the laws of Spain as had not been repealed or were not inconsistent with the Mexican Constitution. And that by these laws the Governor of California, with the approbation of the Departmcntal Legislature, had power to make grants of municipal and other lands.

5th. That by a general territorial law of August, 1834, the Ayuntamientos of the pueblos of California were directed to make applications for lands to be assigned to them.

6th. That by a special territorial act of November 3d, 1834, the Partido of San Francisco was ordered to elect an Ayuntamientos, who were authorized by the act to mark out limits for the municipality—no restriction being given for those limits, nor any instruction as to what they should he.

7th That by a territorial act of 22d of November, 1835, the Ayuntamiento of San Francisco were authorized to make grants of lots not to exceed in size one hundred varas square, and not to be located within two hundred varas of the beach.

8th That by the law of Mexico of March 20th, 1837, for the interior Govermnent of the Departments, the Governor, in concert with the Departmental Legislature might grant per­mission to the Ayuntamientos or other municipal authorities to alienate the property of the municipality.

9th That by the instructions from the Territorial Government, to the Prefect of this District of April 23d, 1841, Justices of the Peace in San Francisco were authorized to grant lots of fifty varas, but not more.

All the grants of land lying within the limits of land claimed by the City of San Fran­cisco, and which, by reference to the records in this city, or to the State archives, appear to have been granted under the above mentioned laws and decrees, prior to the 9th day of July, 1846, when the American flag was first raised in San Francisco, will be found described in Schedule A of this report.

The language of many of them will give some idea of the authority, either actual or assumed, under which they were made.

The grant by Martinez, Alcalde, to ,John Fuller, dated March 14th, 1837, reads thus: “ In virtue of the authority in me vested by the most illustrious Ayuntamientos, I hereby grant,’’ &c

The grant by Guerrero, Jues de Paz, to John Vioget, dated January 15th, 1840, commences thus: "In recognition of the superior order of the Departmental Government, directed to this tribunal, I hereby give legal possession,’’ &c.

The grant by Francisco Sanchez, Jues de Paz, to Wm. A. Leidsdorff, dated July 3d, 1843, commences: In attention to the preceding petition, I, the Jues de Paz of the Jurisdiction of San Francisco, by virtue of authority in me vested, hereby grant," &c.  The grant by Guillermo Hinckley, Alcalde, to Carlos Fluagge, dated March 10th, 1844, commences: "In attention to the preceding petition, I, Guillermo Hinckley, Alcalde of the First Nomination in this Juris­diction, by virtue of authority in me vested, hereby grant,” &c. The grant by the same Alcalde to Encarnacion de Bernal, dated December 17th, 1844, commences : “ In attention to the preceding petition, and to the superior decree of the Departmental Government, I, Guillermo Hinckley, First Alcalde of this Jurisdiction, hereby give legal possession," &c.

The grant by Juan N. Padilla, Alcalde, to Rosalio Haro, dated April 9th, 1845, commences:  ‘‘In view of the preceding petitions, and the superior decree of the Departmental Government, I, Juan N. Padilla, First Alcalde of this Jurisdiction, give legal possession,” &c.

The grant by the same Alcalde to Lazaro Pena, dated May 10th, 1845, commences: “In attention to the preceding petition, I, Juan N. Padilla, Alcalde of time First Nomination of the Jurisdiction of San Francisco, by virtue of authority in me vested, hereby grant," &c. The grant by Jose de la Cruz Sanchez to Francisco Sanchez, dated August 10th, 1845, commences:

 

 

Page 17

 

 

“In attention to the forcgoing petition, I, the Constitutional Alcalde of San Francisco, in virtue of the authority in me vested, hereby grant," &c.

     The grant by the same Alcalde to William Fisher, dated October 20th, 1845, commences: In view of the petition which precedes, and of the superior decree of the Departmental Government, I, Jose de la Cruz Sanchcz, Alcalde of the Jurisdiction, hereby give legal possession,” &c.

    Another by the same Alcaldo, to Miguel de Pedrorina, dated November 30th, 1845, reads: “ In accordance with the facilities with which I am empowered by the law on the subjcct, I hereby grant," &c.

Thc grant by Jose de Jesus Noe, Jues de Paz, to Henry D. Fitch, dated May 14th, 1846, commences: “I, the Jues de Paz of this Jurisdiction, by virtue of the authority in me vested, do hereby grant,” &c.

     On the 7th day of July, 1846, Commodore John D. Sloat, then in command of the Pacific squadron, landed at Monterey and took possession of California in the name of the United States. After raising the American flag, he issued a proclamation to the inhabitants of California, which contained the following passages “ With full confidence in the honor and integrity of the inhabitants of the country, I invite the Judges, Alcaldes and other civil officers to cxecute their functions as heretoforc, that the public tranquility may not be disturbed; at least until the Gov­ernment of the territory can be morc definitely arranged.

     “All pcrsons holding titles to real estate, or in quiet possession of lands, under color of right, shall have those titles guaranteed to them."

     On the 8th of the same month, by order of Commodorc Sloat, Commander Montgomery landed at San Francisco, and raised the American flag here.

     On the 23d of July, Commodore Sloat sailed for the United States, leaving Commodore R. F. Stockton in command, who, on the 17th of August, following, issued another proclamation to the people of California, and of whieh the following was a part:

The Territory of California now belongs to the United States, and will be governed, as soon as circumstances may pcrmit, by officers and laws similar to those by which the other Territories of the United States are rcgulated and protected.

“ But until the Governor, tbe Scerctary and Council are appointed, and the various civil departments of the government are arranged, military law will prevail, and the Commander-in-Chief will be the Governor and protector of the territory.

     ‘‘ In the meantime, the people will be permitted, and are now requested to mcet in their several towns and departments, at such time and place as they may see fit, to elect civil officers to fill the places of those who decline to continue in office, and to administer the laws according to the former usages of the territory.

     “In all cases where the people fail to elect, the Commander-in-Chief and Governor will make the appointments himself."

     During the same month, Captain J. B. Montgomery, then in command at San Francisco, appointed Washington A. Bartlett to the office of Alcalde or Chief Magistratc of San Francisco, and on the 15th of September, following, Mr Bartlett was elected to the same office by the people. In one of the books containing records of lots in San Fiaricisco, granted after the change of governments, is found the following entry, made by Mr. Bartlett:

     “Record of original grants of town lots in Yerba Buena, District of San Francisco, granted in conformity with the laws and usages established by the Executivc Government of California for the governance of the Alcalde or Chicf Magistrate of San Franeiseo, as fully set forth in the official archives of the Distriet, recorded in the first Register of Titles placed at the opening of this book and other public documents. Therefore, from and after this date all titles issued will be in the manner and form shown on the opposite page, and thc record of such grant will be found consecu­tively placed in the Book of Records.

WASHINGTON A. BARTLETT, CHIEF MAGISTRATE."

 

 

Page 18

 

 

[FORM REFERRED TO.]

 

‘‘ Territory of California, District of San Francisco.  Original Grant of Town Lot No.___.

“Whereas, by authority of the late Government of the Department of California, power and authority was given to the Justice of San Francisco to grant lots of land for building and improving the town of Yerba Buena, in the District of San Francisco, as appears by the various orders of said Government, issued at Monterey on the 12th day of November,A. D. 1839, 23d of April, 1841, and 3d of April, 1842 ; wherein the executive authority of the department declares said authority and power vested in said Justice, and directing that the said Justice exercise the afore­said powers; and whereas, those powers were exercised by the various success if Justice until the 9th day of July, A. D. , 1846, when the district was taken by the arms of the United States of America, as an act of war between the United States of America and Mexieo ; and whereas, his Excellency, Robert F. Stockton, Governor and Commander-in-Chief of the Californias, by his proclamation, given at Los Angeles on the 17th day of August, A. D., 1846, directs all civil officers ‘to administer the laws according to the former usages of the territory’—

“Therefore, considering the above described powers as shown by the archives of the magistracy in of San Francisco, as in full three and binding upon me, having been duly elected and confirnied in the magistracy of said district; and considering and admitting the prayer of the petitioner hereunto attached, I, Washington A. Bartlett, first Magistrate and Justice of San Francisco, in conformity with the regulations of and usages recorded in the archives of the magistracy aforesaid, do hereby grant, convey and confirm unto the petitioner,-----, now resident in said town of Yerba Buena, district aforesaid, the lot of land lying and being in said town, containing an area of fifty Spanish varas square, said lot being numbered—on the president plan of Yerba Buena on record in this office, giving unto the said—legal, judicial and perpetual possession thereof unto him the said---, his heirs and assigns, for their own proper use, behoof and benefit forever, under the following conditions:

“1st The said—shall within the term of one year from the date hereof, have said lot number ——— fenced in and a house built upon it.

     “ 2d. That said-----, his heirs and assigns, shall conform entirely to the police regulations now established, or that may be established.

‘‘ 3d That, failing to comply with the 1st Article of these conditions, the said-----, his hcirs and assigns, shall lose all right and title to said lot and for the violation of Article 2d shall incur the penalties which may be imposed according to law.

"And that the said-----, his heirs and assigns, shall have a full and valid title to said lot number-----, and be considered and held in legitimate possession thereof, this Deed of Grant is given under my hand and seal, and rccorded in the archives of Land Titles in the Magistracy of Sans Francisco this day of A.D. 184—.”

Mr. Bartlett continued to officiate as Alcalde until about the 20th day of December, 1846, when he was taken prisoner by the Californians, and Mr. George Hyde was appointed temporary Alcalde by Captain J. B. Hull, then Military Commandant of the Northern Department of Cali­fornia. Mr. Hyde remained in office for the period of one month, when Mr. Bartlett returned to San Francisco and resumed the duties of his office. On the 22d of February, 1847, he was succeeded by Mr. Edwin Bryant, who was appointed to the office by General S. W. Kearny, then Military Governor of Califoinia. On the 1st of June, 1847, Mr. Bryant resigned his appointment, and Mr. George Hyde was appointed to succeed him by General Kearny. In September of the same year, Colonel R. B. Mason, then Governor of California, appointed Mr. T. M Leavenworth to the office of Second Alcalde of San Francisco, Mr. Hyde continued in office, as First Alcalde, until the 1st of April, 1848 when he resigned his office. Mr. John Townsend succeeded Mr Hyde—Mr. Leavenworth continuing in the office of Second Alcalde. In June following, Mr. Townsend left the district, and Mr. Leavenworth performed the duties of First Alcalde until elected to that office early in October of the same year. On the 1st of August, 1849, another election for municipal officers was held, and Mr. John W. Geary was elected to the office of First Alcalde, and Mr. Frank Turk to the office of Second Alcalde.  On

 

 

Page 19

 

 

the same day Mr Horace Hawes was elected Prefect, and Messrs. Joseph R. Curtis and Fran­cisco Guerrero Sub-Perfects of the district—the Prefect being subsequently commissioned by Governor Riley and the Sub—Prefects by the Perfect.

On the 6th day of January following, Mr. P. A. Brinsmade was appointed Sub-Prefect by the Prefect, to fill the place of Mr. Curtis, who had left the country. About the 1st of October, 1849, the Prefect appointed to the office of Justice of the Peace, Mr. G. Q. Colton, to reside at San Francisco ; and on the 8th of December following, Mr. F. P. Tracy, to the same office, to reside at the ‘‘Mission Dolores”—these appointments being subsequently approved by the Governor.

The first Town Council or Ayuntamientos that existed in San Francisco after the change of Government, was composed of six members, who were elected by order of Governor Mason on the 15th of September, 1847, and were to remain in office until January 1st, 1849. In December of 1848 an election was held for a new Council, and seven members elected. The old Council declared the election void for some reasons alleged, and ordered a new election to take place on the 15th of Jannary, 1849, at which time another Council of seven members was elected. Both of the newly elected Councils entered upon the duties of office, and continued to act inde­pendent of each other for a month, and until in February, 1849, the inhabitants elected another Council, which was styled “The Legislative Assembly,’’ and was composed of fifteen members. On the 1st of August, 1849, a Council or Ayuntamientos of twelve members was elected, after which time the Legislative Assembly ceased to act. On the 8th of January, 1850, another Council or Ayuntamientos, consisting of twelve members, was elected, this being the last muni­cipal election held prior to the election for officers under the Charter of the City of San Francisco.

On the 10th day of March, 1847, Brigadier General S. W. Kearny, then Governor of Cali­fornia, executed to the City of San Francisco the following document:

“ 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, including between the points known as the Rincon and Fort Montgomery; excepting such lots as may be selected for the use of the General 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 bidders, after three months’ notice previously given. The proceeds of said sale to be for the benefit of the town of San Francisco.

“ Given at Monterey, capital of California, this 10th day of March, 1847, and in the 71st year of the Independence of the United States.

                          (Signed,)                                                          S. W. KEARNY,

 

BRIG. GEN AND GOVERNOR OF CALIFORNIA.”

 

 

Under this authority Edwin Bryant, then Alcalde of San Francisco, accepting in behalf of the town of San Francisco the title and possession of the property thus grantcd, ordered a survey of the same, which survey was made about the month of July, 1847, by Jasper O’Farrell, sur­veyor, who laid off four hundred mid forty-four beach and water lots, of the dimensions of the and of six­teen and two-thirds varas by fifty varas and, or forty-five feet and ten inches by one hundred and thirty-seven feet anl six inches. These lots are now designated upon the official map of the city, made by Wm. M. Eddy, City Surveyor, as lots numbered from one to four hundred and forty-four, inclusive.

 

On the 16th day of March, of the same year, public notice was given by Mr. Bryant that the sale of these lots would take place on the 29th day of June following.

The sale was deferred, however, until July, and on the 20th, 21st and 22d days of that month took place Mr. Bryant having meanwhile gone out of office, the conveyances were given by George Hyde, thcn Alcalde and Chief Magistrate.

 

 

Page 20

 

 

 

There was no further grant or sale of beach and water lots in conformity with the terms and

conditions of General Kearny’s grant until during the administration as Alcalde of John W.

Geary, who, by order of the Ayuntamiento, or Town Council, on the 3d day of October, 1849,

gave public notice of a further the sale of water lots, to take place on the 3d day of January, 1850.

A further survey was also directed, and in addition to the lots previously surveyed there were laid out, within the limits named in Kearny’s grant, 328 lots, which are numbered upon the official map of the city, from 445 to 772, inclusive, and are of the same dimensions as those previously surveyed by O’Farrell.

In conformity with the notice given, on the 3d day of January, 1850, a public sale was held, and 343 lots sold. The conveyances were made by John W. Geary, Alcalde.

In addition to those, however, there have been many grants made, of lots within the beach and water survey, by T. M Leavenworth, Alcalde, and by G. Q. Colton, Justice of the Peace, which grants were made on petition of the grantee, and not after public sale at auction.

Upon examining the proceedings of the Ayuntamientos, or Town Councils, of San Francisco, to find how far these sales had been authorized or approved by the city, there is to be found in the published proceedings of a meeting of the Town Council, held October 11th, 1848, the fol­lowing preamble and resolution:

“Whereas, T. M Leavenworth, the present Alcalde, has represented to this body that he has made grants of several parcels of lands adjacent to the town, and that the grants made during the interim of the Council were for the purpose of raising funds to defray the necessary expenses of the town and district ; therefore,

Resolved, By the Council of the Town of San Francisco, that the grants of land made by T. M. Leavenworth, Alcalde of the district of San Francisco, be, and are hereby, satified and confirmed.”

And, also, in the published proceedings of a meeting of the Council, held April 1st, 1850, the following preamble and resolution:

‘‘ Whereas, There was no organized Town Council for the town and district of San Fran­cisco, from the 1st of January to the 1st of August, 1849, to provide by legislation the ways and means for the necessary improvement of the town and expenses of the municipality thereof, thereby throwing the entire weight and responsibility upon the Alcalde and Chief Magistrate, for the raising and providing the funds necessary for the purpose, and for the maintenance of the proper authority of the said town, and which, in consequence, could only be effected by a resort to the sale, by grant, in the usual form, of a portion of the public domain of the said town and district therefore,

“Resolved, That this Town Council do hereby approve, confirmed and ratify all grants of land made within the jurisdiction of the town and district of San Francisco, by the Alcalde and Chief Magistrate thereof, to raise the necessary funds for the purposes aforesaid, during his term of office, provided such grants shall appear upon the records of the town and district out of San Francisco.”

Of those grants made by Colton, Justice of the Peace, there has been no recognition nor approval by any of the authorities of this city, but on the contrary there is to be found in the published proceedings of the Town Council of 1849-’50, that at a meeting held on the 21st of December , 1849, the following preamble and resolutions were adopted:

“Whereas, it has this day been made to appcar to the Ayuntamientos that G. Q. Colton, a Justice of the Peace in and for the town of San Francisco, has assumed the authority and pre­tends to exercise the right of selling, granting and disposing of lots within the limits of said town,

“Resolved, That Archibald C. Peachy, Esq , City Attorney, be directed to institute legal proceedings against the said Colton to restrain him in such illegal and unwarranted practices, and to make him amenable by due process of law for a misdemeanor and malfeasance in office.

‘‘Resolved, That a copy of these resolutions be published in the ‘‘ Alta California,”the ‘‘Pacific News" and in handbills, to warn all persons against trespassing upon tlm public property, under pretence of titles obtained by such, fraudulent means and under such pretended authority.”

 

Page 21

 

 

And at a meeting of the same body held on the 18th day of March, 1850, the following resolution was adopted:

“Resolved, That this Town Council regard all titles to land made by grants or sales in any form, within the jurisdiction of San Francisco, by any person or persons whatever, other than the legally elected Alcalde and Town Council thereof, as illegal and of no effect.”

     The City thus having refused to ratify or confirm the sales made by Mr. Colton, the question yet remains an open one how far it is bound by his acts, and this must depend upon the legal authority possessed by him to make such disposition of city property. The issue when made will be one for the judicial tribunals to settle.

     In the Schedule F will be found many lots purporting to have been disposed of by a grant from Alvarado, as Governor of California, to Robert Elwell, on petition “ for permission to establish a place in San Diego or San Francisco for salting cattle skins and to occupy any competent lands as my own.” The grant is dated Monterey, December 10th, 1842, and confers the right of the petitioner ‘‘ to establish himself on the beach or in the place it suits him, not to exceed four hundred varas.”

     Annexed to the record of the grant is an affidavit, dated December 5th, 1849, setting forth that Ehvcll, on the 10th day of Deccumber, 1842, notified the authorities of his choice of location and took possession. The property thus claimed is bounded north by Broadway, south by Wash­ington street, west by Sansome street, and east extending to ship’s channel.

     From the best information to be obtained, it is believed that at the date when this grant pur­ports to have been made Alvarado had been superseded in his official capacity and was no longer Governor. This conclusion is warranted by the following extract from a letter by Alvarado, dated Monterey, October 19th, 1842, and addressed to Commodore Thomas Ap C. Jones, in reply to a demand from him to surrender the Department.

“CIVIL GOVERNMENT OF MONTEREY.

 

“TO THE COMMODORE OF THE NAVAL OF THE UNITED STATES, THOMAS Ap C. JONES:

 

     “At the delivery this evening by your Commissioner of the notice to surrender this Depart­ment, I had the honor to represent to him that such conduct on my part would not be in accord­ance with my duties to the Governor and Commandant General, as he is the person to whom the note should have been addressed I proceed consequently to explain to you, sir, that I am not competent to make a capitulation in the name of the Mexican Government, as my authority does not extend beyond the limits of Monterey; and this limited authority is confined exclusively to the civil branch, and can in no wise be extended to the military.

      “MONTEREY, October 19, 1842.”                              “JUAN B. ALVARADO.

 

     On the 26th of March, 1851, the Legislature of the State of California enacted a law by which the title of the State to all the lots below high water mark within the city limits was relin­quished to the City of San Francisco. This act will be found in the appendix.

Such is a brief history of the municipal government of San Francisco, and of the laws to which it has been subject from time to time.

     Of the lots within the limits of the fifty vara survey, there arc ten of the dimensions of one hundred varas square, to wit : numbers 1, 18, 24, 49, 50, 56, 57, 76, 673 and 675. There are also three duplicated upon the official map, to wit : 695, one of that number being on the north-east corner of Stockton and Francisco streets, and the other upon the south side of Fran­cisco, between Stockton and Dupont streets. Also, 709, one of that number being on the south­east corner of Sansome and Pine streets and the other on the north-west corner of Chesnut and Jones streets Also, 753, one of that number being on the south-east corner of Francisco and Jones streets, and the other upon the north-east corner of Stockton and Geary streets. In the one hundred vara survey there have been omitted, in the numbering of the lots on the map, 16 numbers, to wit: 98, 99, 100, 101, 102, 117, 118, 119, 120, 121, 122, 123, 124, 125, 236, 237.

Besides the grants of lots mentioned in the schedules and synopsis of this report, there were many grants of lots in the neighborhood of the old mission buildings, made by F. P Tracy, Jus­tice

 

 

Page 22

 

 

of the Peace ; but as the lots granted were not numbered nor described regularly by any known boundaries, it was found impossible to give a list of them with the description of the land intended to be granted. The record of them will be found in a book now in the Recorder’s office in this eity.

This abstract is intended to exhibit at a glance, by reference to the number of any lot, all grants or city sales down to date, that have been made of the same, and any sale or execution against the city, or any redemption that may have taken place after such sale. Those lots which have been sold on execution against the city are indicated by a star thus, (*) and will also be found in Schedule I.

The statistical information given here has been procured from a careful examination of the Spanish archives now possession of the U. S Surveyor General of California, and from the records, Spanish and English, in the office of the County Recorder of this county. From the attention which the author has given for the last three years to the investigation of land titles in San Francisco, he offers this work to the public with confidence that it will be found reliable for correctness, and a still more valuable book of reference than the Reports on the same subject which he had the honor to prepare in 1850.

 

ALFRED WHEELER

SAN FRANCISCO, November 1st, 1852