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NUMBER 76 - 010 7

 
 

 

 

AUTHOR: Drake, Eugene &

TITLE: Argument of...

PLACE: L h.p-2

DATE:[ 13772] VOLUME 3:3
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NO. v.32 NEG. NO.0%-07

 
 

 

 

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Drake, Eugene B

A:gument of Eug. B. Drake and C.R. Greathouse, against the
Staton Survey, [n.p., 18772]

47 p. 26cm. [Pamphlets on San Francisco. v. 3, no. 3)

Cover title,

At head of title: Before the General Land Office of the United
States. The City of San Francisco, vs. The United States,

1. Land titles - San Francisco, 2, San Francisco - Lands, 3.
Station Survey, San Francisco, 4. Pueblo lands - San Francisco,
I. U.S. General Land Office. II. San Francisco ve. The United
States. III. Greathouse, Clarence Ridgeley, 1845-1899. 5, San
Francisco, Presidio. (Series)

( CU-B 68

 

 
 

 

 

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BEFORE THE

GENERAL LAND OFFICE

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UNITED STATES S mn

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THE CITY OF SAN FRANCISCO,

VS.

THE UNITED STATES.

Argument of EUG. B. DRAKE and
C. R. GREATHOUSE, against

the Stratton Survey.

 

 

 

 

 

 

 

 

 
 

 

 

 

 

BEFORE THE

GENERAL LAND OFFICE

UNITED STATES.

1 | THE CITY OF SAN FRANCISCO,

FS.

| THE UNITED STATES.

| | Argument of EUG. B. DRAKE and |

C. R. GREATHOUSE, against

the Stratton Survey.

 

 

 

 

 

 

 
Before the General Land Office

UNITED STATES.

 

Tue City oF San Francisco,
VS.

Tue UNITED STATES.

Argument of Eug. B. Drake and C. R
Greathouse for Claimants, under the
City of San Francisco, against
the Stratton Survey.

We claim that the survey of the Pueblo lands
of San Francisco and the Presidio reservation,
made by Jas. T. Stratton, Deputy U. S. Surveyor,
should be set aside, and a new one ordered which
will include as city lands all the Northern portion
of the Pueblo except such lands as were actually
occupied by the Mexican Government as a Pesidio
or military barracks, on the 7th day of July, 1846.

Such survey would give the United States more

Hi fo EE —
BS A SA A 35 a

 
2

than it is entitled in law, for, as a matter of fact the
Presidio so called, had been entirely abolished long
prior to that that time, and was, as early as 1834,
supplanted by the establishment and organization
of the PuesLo oF SAN Francisco by the Mexican
authorities.

This Pueblo, under the laws of Mexico, became
invested with the ##/e to the whole ot the peninsula
within the boundaries mentioned in the decree in
this case.

The government of Spain never claimed any
title or interest in the Pueblo lands after the year
A. D. 1791. Vide Dwinelle’'s Col. Hist. of San
Francisco, p. 33 (sec. 44.)

Nor did the Mexican Government make any
claim thereto after the 3d day of November, 1834.
Vide, Hart v. Burnett, 15, Cal. on p. 540.

The old barracks (Presidio) and old Fort (Cas-
tillio) at Fort Point, were entirely deserted and
abandoned by the Mexican authorities long prior
to July, 1846. They are mentioned in the pub-
lic writings of travelers, and also by the Mexi-
cans themselves, as the “ruins” of the “old Pre-
“ sidio ” and “ Castillo.”

«“ Lieutenant Wilkes who visited San Francisco
« with his exploring expedition, in 1841, says:
“ After passing through the entrance of the Bay,
‘“ we were scarcely able to distinguish the Pre-
““sidio; and had it not been for its solitary flag-
« staff, we could not have ascertained its situation.

“ From this flagstaff no flag floated ; the building

 

3

“ was deserted, the walls had fallen to decay; the

“ guns were dismounted, and everything around it
“lay quiet.” ¥ # % % .

“ De Mofras, writing in 1842—although his
“ first and probably his only visit to the Presidio
“was in 1840—writes : “ The Presidio of San
“ Francisco is in ruins, and completely disarmed.
“ It is inhabited only by a sub-lieutenant and five
“farmer soldiers and their families. From this con-
“ dition of ruin and abandonment (the italics are
“ ours) the Presidio never recovered until after
“the Anglo-American conquest.”  Dwinelle’s
“ Col. Hist. of San Francisco, p. 106.”

In the petition of Henry Fitch and Francisco
Guerrero to the Governor of the Mexican de-
partment of California, dated 13th of May, 1846,
for the grant of a mill-site at the Presidio, the
place is described as being vacant, and the cer-
tificate or report of José de Jesus Nog, as Justice
of the Peace, or Juez de Paz, shows also that
the land was #%en vacant, to wit: on the 1 3th of
May, 1846. These documents are genuine, and
are published in full in the Addenda to Dwinelle’s
Col. Hist. of San Francisco, p. 95.

Again, Benito Diaz in his petition to the Gov-
enor of Californor, in April, 1845, asking for a
grant of Point Lobos and adjoining lands, de-
scribes the Presidio as being in ruins. This pe-
tition is given in full in the Addenda to Dwinelle’s
Col. Hist., p, 101.

 

 

  
  
   
 
 
 
 
 
 
 
  
 
   
4

And there are, doubtless, hundreds of people
now living who can truthfully attest the fact, that
long prior to July, 1846, the Presidio barracks and
Fort had been abandoned by the Mexican Gov-
ernment.

I.

THE LAND IN QUESTION BELONGED TO THE
PuesLo.

We contend that upon the conquest of the coun-
try on the 7th of July, 1846, San Francisco, was
an existing town (Pueblo) within the meaning of
the 14th Section of the Act of Congress of March
3d 1851, and was entitled to have and did have,
own and possess, subject to certain trusts, four
square leagues of land within the said boundaries ;
no part ever passed to the United States, nor
could the same or any part thereof betaken, either
by the President or the Congress of the United
States, for public uses, without compensation and
due process of law.

At that time—]July, 1846—the United States

found the whole of the extreme upper portion of
the peninsula in the actual possession of the Pueblo
authorities, except, perhaps, the ruins of the old
Presidio buildings and Fort, all of which would
not cover an area of more than 20 acres;
and, also, excepting such tracts of land as had
been theretofore granted to citizens of Mexico by
the civil authorities.

Under the treaty the United States became
possessed of only two classes of titles to lands in
California, namely :

 

   

5

Frst—Title toall landsthen belonging, uncondi-
tionally, in fee simple, to the Mexican Govern-
ment ; and

Second—A qualified title to all lands which had
been theretofore granted in private ownership, or to
corporations, the titles to which were inchoate,
subject to the right of the grantees thereof, to
confirmation by the United States. These Mex.
ican grantees held an Zmperfoct title, so to speak,
to their lands; and it was the duty of the United
States to give them a perfect title.

Teschemacher v. Thompson, 18 Cal, 12.
Estrada v. Murphy, 19, Cal., 248.

Gardner v. Miller, 47 Cal, 570.
Fremont v. United States, 17 How. (U. S.)
545.

All titles which were absolutely perfect at the
time of the cession of California, were not affected
by the change of Governments; and, as was held by
Mr. Justice Field in Zeschemaker v. T, hompson, 18
Cal. 12: “ By the law of nations, independent of
“ treaty stipulations, the cession of territory from
“ one government to another does not impair the
“ rights of the inhabitants to their property. *
“a % > # bd Public property
“ and the “sovereignty over the territory are only
“ considered as passing by the cession.” (Citing
United States v. Percheman, 7 Pet. 86.) “ When,
“ therefore, California was ceded to the United
“ States, the rights of property of its citizens re-
“ mained unchanged.”

  
 

6

We insist that the pueblo title to the land in con-
troversy was:

First—A perfect legal title on the 7th July:
1846 ; or

Second—If the title required confimation that it
was fully confirmed and granted, unconditionally,
to the city of San Francisco by the 14th Section
of the Act of Congress of March 3d, 1851, which
grant took effect as of the 7thof July, 1846; and,

Third—Even if the title was zmperfect, still the
city's right to the whole of the lands was such,
that the United States were, and are, bound to
preserve it intact.

These rights embrace all of the lands bounded
on the north and east by the Bay of San
Francisco, on the west by the Pacific Ocean, and
by a line on the south running from the Bay to
the Ocean so as to enclose four square leagues,
excepting private grants made pursuant to Mexican
law and the old Presidio Fort and Barracks, as
actually occupied and used by the Mexican Govern-

ment.

 

The remainder could not be taken under any pre-
tense, or for any purpose, without compensation or
due process of law. As was held in the case of the
United States v. Moreno, 1 Wall, 400: “The ces-
« sion of California to the United States did not im-
“ pair the rights of private property. These were
« consecrated by the laws of nations, and protected
« by the treaty of Guadalupe Hidalgo. The Act of
« March 3d, 1851, to settle private land claims in
« California was passed to assure to the inhabitants

 

7

: of the ceded territory the benefit of the rights
‘ thus secured to them. It recognizes both legal
t and equitable rights, and should be administered
“in a liberal spirit.” It is also said in ‘Zows-
send v. Greely, 5 Wall, 326: « The treaty of
“ Guadalupe Hidalgo between the United States
“and Mexico does not divest the pueblo, existing
f at the site of the city of San Francisco, of any
2 rights of property, or alter the character of the
Interests it may have held in any lands under
“ the former Government. * ® *

* 3% % sk ®

’ By the laws of Mexico, in force on the acqui-
i sition of the country, pueblos or towns in Cali-
“fornia were entitled, for their benefit and the
“ benefit of their inhabitants, to the use of lands
“ constituting the site of such pueblos or towns,

; bo of adjoining lands within certain prescribed
“ limits.”

Again, in the case of the United States v. Pico
5 Wall, 536, the Court say : “A pueblo or town in
“ Mexico, once formed and officially recognized,
“ became entitled, under the laws of that country,
" to the use of certain lands for its benefit and the
‘ benefit of its inhabitants, and the lands were
“ upon petition, set apart and assigned to it by the
“ Government.” See also Zeschemaker v. T, homp-
son, ut supra.

In harmony with these views, and in the
case at bar, Judge Field, on the 18th day of
May, 18635, rendered a final decree, confirming the

    

  
 

 

8

title of the city of San Francisco to the pueblo
lands and embracing therein “so much of the
“ extreme upper portion of the peninsula above
“ ordinary high-water mark (as the same existed
« at the date of conquest of the country, namely,
“ the seventh of July, 1846,) on which the city of
«“ San Francisco is situated, as will contain an area
“ of four square leagues, said tract being bounded
“on the north and east by the Bay of San Fran-
“ cisco, on the west by the Pacific Ocean. and on
“ the south by a due east and west line drawn so
“ as to include the area aforesaid, subject to the
“ following deductions, namely : such ‘parcels of
“ land as have been heretofore reserved or dedi-
“ cated to public uses by the United States.”

But we claim, (although this is not necessary to
sustain our case) that the city acquired a perfect
title to the pueblo lands prior to, and independent
of, the decree of Judge Field. The lands held by
the pueblo, consisted of four square leagues, and
were, and are bounded on the north and east by
the Bay of San Francisco; on the west by the
Pacific Ocean, and by a line on the south running
from the Bay of San Francisco to the Pacific
Ocean. The tract and boundaries of the land, thus
granted, are definite and certain ; and this quantity,
by these boundaries, segregated itself from the
public domain.

In Dwinelle’s Colonial Hist. Sec. 134, it is said:

“ That the conformation of the peninsula of
“ San Francisco is such that there could be only

 

9

““ one possible parallel of latitude, which, with the
“ tide-water line surrounding the peninsula, would
““ include the four leagues belonging to the pueblo,
* and therefore it was not necessary that that line
“ should be actually surveyed.
“ 1d certum est, quod certum reddi potest.
“ But that afterwards the Mexican Government
made such grants of adjoining lands that there
“ is left for the Pueblo less than the four leagues
“ to which she is entitled, and the superior au-
“ thorities have thus segregated what is left as be-
“longing to the Pueblo, and so reduced that area
“ to a certainty.”

The foregoing limits of the pueblo lands re-
ceived an early judicial recognition by our Supreme
Court in the case of Pane & Dewey vs. Treadwell,
16 Cal., 220, as follows :

“The question of the boundary lines of the
“ pueblo should not be left to the jury, to be de-
“termined by parol proof. * * #* #% # Gu,
“ Francisco having been constituted, by a public
“ political act of the former government, a pueblo,
“Courts will take judicial notice of its existence,
“ powers and rights, and among these last, its gen-
“eral boundary and jurisdiction!” * # #% x

“ By the instructions referred to in the opinion
“(the Ordinazas de Tierras y Agues) the point
“from which the survey of the four square leagues
“ to which the pueblo was entitled, is the center of
“the old presido square, and the survey is to be
“made in all directions, 7. e., north, south, east and
“west, so as to include, in all, the four square
“ leagues—making up for deficiencies in one direc-

«

  

  
 

10

“ tion (where these exist by reason of water being
« reached, etc.) by including the quantity thus de-
“ficient in another line or lines. By applying
“ these rules of measurement to the peninsula of
« of San Francisco, and taking the center of the
“old presido square as the initial point of the sur-
“vey, we find that the fundo legal of that pueblo
“is bounded upon three sides by water, and that
“ the fourth line must be drawn for quantity east
“ and west, straight across the peninsula, from the
Ocean to the Bay.”

From this description, it necessarily follows that
the pueblo had at the date of the conquest—]July,
1846—a perfect title to the four leagues described.

The Government could, of course, survey it, but
the surveyor would have 7o discretion in the per-
formance of his duty, he could only find where the
boundaries have been, ever since the foundation of
the pueblo.

But if any doubt exists as to the character of the
pueblo title, as derived from the Mexican author-
ities, it is evident, that the Act of Congress, of
March 3d, 1851, operated as a legislative grant to
the pueblos of California, of all interest which the
United States may have acquired, if any, by the
conquest, which grant took effect by relation as
of the 7th July, 1846. The Act of March 3d,
1851, was retroacting by its terms to 1846; and
being the first solemn official Act by Congress
on the subject of the lands of the Pueblos

would, to our mind, effectually annul and destroy
the unauthorized proclamation of Mr. Fillmore,

 

 

  

11

providing for a military reservation in the centre
of the Pueblo lands. It must be constantly re-
membered that the act of Mr. Fillmore in making
this large and useless reservation, was wholly
without warrant of law, and without the consent
of Congress; and when the proceeding is now
reviewed by the light of the many Judicial de-
cisions upon the subject, it is remarkable that
this immense rancho (used principally for herding
cows) should have been so long permitted to exist
within the limits of a thriving and prosperous city
like San Francisco.

In the case of Welsh v. Sullivan, 8 Cal., on page
198, the Court say :

* It is urged that the fees of the ungranted lots
“within the City remained in the Mexican govern-
“ment, because the municipal and common lands
“ were never actually assigned to the Pueblo by a
“survey or judicial possession made by competent
“officers. The practical force of this argument is
“not perceived. It is perhaps true that the Gov-
“ernors might grant within the Pueblo until the
“measurement was had; but under the Spanish
“and Mexican law, the right of the Pueblo to have
“ the municipal and common lands assigned, was
“an acknowledged equity. The United States

“succeeded to the fee charged with this equity,
“and are bound to respect it by the treaty with
“ Mexico.

“The Act of Congress of 1851, removes all dif-

“ ficulty about the boundary by acknowledging this
“right; and by releasing to the present City al]

  
12

«Jands vacant and ungranted on the 7th day of
“ July, 1846, removed all difficulties on the subject.
« Under the decisions of the Supreme Court of the
« United States, this release was equivalent to a
« Legisiative grant upon which ejectment can be
“ maintained, as well as upon the patent, which is
«only a ministerial act, while the other is the
« direct act of the sovereign through the Legisla-
“ tive department. See Grignonv. Astor, 2 How-
“ard, 319, in which the Supreme Court of the
« United States held, that ‘a title to land becomes
“a legal title when a claim is confirmed by Con-
“ gress. Such confirmation is a higher evidence of
“ title than a patent, because it is a direct grant
“of the fee which had previously been in the
“ United States.

And again, in Payne & Dewey v. Treadwell, 16
Cal. (ut supra) on p. 239, the Court, in passing
upon the title to the land granted by an Alcalde
of the Pueblo, say:

« There can be no question as to the fact that
“ this property was within the limits of the old
«“ Pueblo as we have defined those limits to be.”
* ft # * * #

“ Qur conclusion is, that upon two distinct and
“ independent grounds, the validity of these Al.
“ calde grants may be safely rested :

“1. Upon the title of the Pueblo and the pre-
“ sumed authority of the Alcaldes as the proper
“ granting officers to grant lots within the Pueblo,

 

  

13

“2. Upon the Van Ness Ordinance and Act
“of the Legislature of 1858, which last, in effect,
“validates and affirms such grants, whether they
“ were or not originally good, or whether the title
“of the City came by grant to the old Pueblo, or
“had its origin, by presumption or grant, in the
“Act of Congress of March 3d, 1851.”

This decision was concurred in by Mr. Justice
Field, who is now one of the Judges of the Su-
preme Court of the United States. >

It will be seen by an examination of all the
cases upon the subject, that the right of the Pueblo

to all the lands within its limits is treated as a
perfect title.

As early as the case of Cokais v. Raisin, 3 Cal,
443, the Supreme Court of California held, “before
“ the military occupation of California by the army
“of the United States, San Francisco was a Mexi-
“can Pueblo or municipal corporation, and was in-
“vested with title to the lands within her bound-

“ aries. % ¥ % %
““ {

By the laws of Mexico, towns were invested
“ with ownership of lands.” % ¥ *

“ The occupation and subsequent acquisition of
“ California by the United States, did not suspend
“or determine any rights or interest of San Fran-
“cisco in such lands.” ® * *

“The Pueblo retained, during the war, all its
“ rights to municipal lands which had been confer-
“red upon it previous to the war. The right to

 

  
 

14

« alieniate is incident to that of ownership. The
“ fact that this right was exercised by the munici-
“ pality from 1835 to 1850, without question or
“ restriction, would prove the usage and custom
“in the absence of law.” % * %

“ The Pueblo had the same right to dispose of
‘its property during the war as a natural person.”

All the decisions speak of the Pueblo title as
being perfect under the Mexican law, and, if any
doubt remained upon that point, it was settled by
Section 14 of the Act of Congress, to ascertain and
settle private land claims in California, which was,
in effect, a Legislative grant, and is higher evidence
of title than a patent.

Welsh v. Sullivan, 8 Cal., ut supra.

And here let us inquire the difference between a
perfect and an imperfect grant.

This question was partially answered in the case
of Carpentier v. Montgomery, 13 Wallace, 480,
wherein the Court held that where a Spanish or
Mexican grant of lands in California, does not
identify the precise tract of land granted, the title
is imperfect, and that such is the case where one
side of the tract is undefined, or one of the exterior
boundary lines cannot be located, in such case a sur-
vey is necessary to demonstrate the particular tract
granted.

This decision follows in the path of prior adju-
dications on the subject, and clearly indicates that
the title is only imperfect when the exact tract o

16

land granted cannot be identified from the public
lands. Such is the case where the grant calls for
a certain quantity—say four leagues—within exte-
rior boundaries containing a larger quantity—say
ten leagues. In all such cases it is imperative that
the four leagues should be officially selected and
set apart from (within) the ez leagues, and a sur-
vey thereof made, so as to determine and define
what is “prwate land,” and what is “public lands,”
so to speak. And the converse of the proposition
must be true, that all titles are perfect where the
grant is uz presenté, and the boundary lines perfect
and complete; and when a title is perfect, of what
benefit is confirmation?

In the case of Minturn v: Brower, 24 Cal., the
precise point was decided, and the Court 4d, that
“ Mexicans who, previous to the acquisition of
“ California by the United States, were established
“in and had acquired from the Governments of
“ either Spain or Mexico a perfect title to lands in
“ California, and who chose to remain in Califor-
“ nia, were, by the treaty of Guadalupe Hidalgo,
“ protected in the ownership and enjoyment of the
“land the same as though no change of sover-
‘“ eignty had taken place.”

“ Mexicans whose titles to lands, by grant from
“ Mexico or Spain were perfect at the time of the
“ acquisition of California by the United States
“ were not compelled to submit them for confir-
« mation to the Board of Commissioners appointed
‘“ under the Act of Congress of March 3d, 1851,
“nor did they forfeit their lands to the Govern-

 

 

 

RN A I NBS AO PGR

AAR i AS
 

 

16

“ ment by a failure to present their claims for con-
“ firmation.”

“ Holders of titles to lands which were perfect
“ at the date of the treaty, could, if they so elected,
“ submit them to be passed upon by the Commis-
“ sioners, but they were not bound to do so.”

But if the holder should elect to present his
perfect title to the Board for confirmation, we sub-
mit, that neither the Board nor the Circuit Court
could confirm it so as to take from him any part
of his land. |

And so, we submit, the Circuit Court, in con-
Sirming the title of the City of San Francisco to
the pueblo lands, could of, in the same breath,
except therefrom (or ‘confiscate, if you please) a
large, or any, portion thereof for military, or any,
uses.

If the Court had the power to except from con-
firmation one inc of these lands it could, with
equal facility, have reserved therefrom for military
or any purposes, the entire patrimony of the city.
This could not and cannot be permitted.

But even if it be held that the city and its
inhabitants derive all their rights under and by
virtue of the decree in this case, we do not think
the rights we contend for are in any manner
limited or narrowed. :

This decree is clear and definite as to the boun-
daries of the pueblo lands. It includes a// the
lands in the extreme upper portion of the penin-
sula, bounded on the north and east by the Bay of

San Francisco and on the west by the Pacific

17

Ocean, except such portion thereof as had been
theretofore reserved or dedicated to public uses by
the United States.

Of course Judge Field means to except only
such portions as may have been lawfully reserved
or dedicated ; and the question is distinctly pre-
sented, whether the proceedings of President
Fillmore, in undertaking to establish the so-called
Presidio Reservation out of the pueblo lands of the

city were legal or binding, or whether they were.

wholly without authority or jurisdiction, and conse-
quently #x// and void.

We insist, that, in so far as this proclamation
exceeds in quantity the lands actually occupied
and used by the former Mexican Government as a
barracks, it is WHOLLY VOID.

It is proper to observe that there is an obvious
difference between a pueblo and a Presidio: the
former is a Municipal corporation, seized in fee of
the lands within its boundaries, while a Presidio is
simply a garrison of soldiers with jurisdictional
boundaries for military purposes only, but wholly
without title or claim of title to any lands what-
ever. If, then, the Presidio at San Francisco, on
the 7th of July, 1846, held no land, except, per-
haps, the possession of the small parcel actually
occupied and used by the garrison, the sequence is
indisputable, that the large and valuable tract
sought to be reserved by the President, on his
own motion (for there was no Act of Congress to
sustain him) was the property of the city of San
Francisco, and, therefore, beyond the control of
either the President or of Congress. At the time

 

I wo
 

18

of the President's first proclamation, November
6th, 1850, the State of California had been ad-
mitted into the Union as a sovereign State, and
San Francisco was an incorporated city under the
laws thereof :

The laws of Mexico had given place to the
common law, and the Municipal rights of the city,
as succesor of the former pueblo, had completely
crystalized.

Among these guaranteed by the treaty and by
the Constitution, is the right to acquire, possess
and protect property, and, of which the city could
not be divested or deprived without due process of
law and full compensation therefor.

It may be that the President, in view of the
chaotic condition of the land titles in California
and the want of knowledge in respect thereto,
believed he had the right to make this large res-
ervation ; but in the light, and upon the authority
of numerous subsequent decisions of both the
Federal and State Courts, it is clear that his “res-
ervation proclamation,” so called, as far as it af-
fected San Francisco, was an arbitrary effort to
take private property for public uses without com-
pensation ; and if this illegal act has ripened into
anything like a lawful claim, it results in nothing
more nor less than confiscation. Because it is
apparent that the Federal Government, after the
admission of California as a sovereign State, in
September, 1850, no longer retained any power or
right of disposal over the pueblo lands; the right
to control their disposition had lodged exclusively
in the city, subject to the concurrence of the Legis-

 

19

lature of the State. In the case of Hart vs. Bur-
nett, 15 Cal, 530, this question was fully consid-
ered and passed upon by the Court after the most
exhaustive research’ of able counsel, and the
Court /4eld that San Francisco was, at the date
of the conquest and cession of California, and
long prior to that time, a pueblo, entitled to and
possessing all the rights which the law conferred
upon such municipal corporations; that the said
pueblo had a certain right or title to the lands
within its general limits; that the municipal lands
to which the city of San Francisco succeeded, were
held in trust for the public uses of that city ; and
that this property and these trusts, were municipal
in their nature, and were within the control and
supervision of the State sovereignty, and that the
Federal Government had no such control or super-
vision. See, also, on this point :

Townsend vs. Greely, ut supra.
United States vs. Pico, ut supra.
New Orteans vs. United States, ro Peters,

2. 736.

Here, then, we have the declaration of the high-
est Courts in the land, that the United States,
after September, 1850, had 70 control over the lands
in question, and yet the military authorities have
taken by force, and have continued to 4old by force,
nearly 2,000 acres, without authority of any kind.

The unauthorized act of Mr. Fillmore in his
attempt to spoliate the city’s property to the ex-
tent of millions of dollars, was #of the act of the

 
20

Government, and has never been binding on any-
body.

The acts and laws of the Spanish and Mexican
authorities, together with the treaty of Guadalupe
Hidalgo, united with the 14th Section of the Act
of Congress of March 3d, 1851, granting these
lands to the Pueblo of San Francisco, as of July
7th, 1846, resulted in a perfect title, both at law
and in equity, to the Pueblo and the City of San
Francisco, as against the United States and their
authorities. A title which could not, and cannot,
be destroyed by the proclamatlon of the President,
whether made by authority of Congress or not.

In any event, the City of San Francisco was
possessed of an equitable title which was fully
covered by the treaty and the law of nations, and
she could not be plundered under the pretense
that the former Presidio had any right to any
portion of the Pueblo lands, except, perhaps, such
portion as was actually covered by the ruins of
the old Presidio buildings in July, 1846.

From the above we contend.

First—That no matter whether the city had a
perfect title or took its title by virtue of the decree
in this cause, and irrespective of the question as to
the power of the President to make without con-
gressional authority, military reservations, the city’s
rights were vested and could not be divested by
the President or any act of Congress.

Second—That as the reservation claimed to be
made by the President was void, and as no other
reservation by the United States authorities has

 
21

ever been attempted, the Presidio reservation, even
under the decree of Judge Field, is limited to such
reservation or claim as the Mexican Government
had at the time of the cession.

This Presidio or Reservation was beyond all
question limited Zo the ground actually occupied by
the Old Fort or Barracks, which was less than
twenty acres, there being no mention in any records
of any other boundaries ; no line drawn or segreg-
ation attempted or indeed claim made other than
or beyond the ground covered by the Old Presidio
Barracks until the unauthorized proclamation of
President Fillmore, enlarging the Mexican Presidio
Barracks of twenty acres to a so called military
reservation of nearly two thousand acres.

I1.

We now proceed to discuss the question as to
what rights the old Presidio possessed under the
Spanish and Mexican laws, and, as ancillary
thereto, the right of Mr. Fillmore or the United
States,, to reserve, or fake, from the Pueblo of
San Francisco any portion of the peninsula for
public or military purposes, without compensation.
It has already been said that the Presidios of
California were military establishments for the
protection of the earlier settlers of the country, the
Government then being entirely ecclesiastical and
military.

The Church settlements (called Missions) and
the garrisons of soldiers (called Presidios) were

ok cg

 
 

22

generally located near each other, but the Pre
sidios or military departments included within
their military jurisdiction the civil and church
settlements for the purpose of extending to them
such military protection as they might need.

Escriche defines the word Presidio as follows :
“ The garrison of soldiers which is placed in the
“ plazas, castles and fortresses for the protection
“ of the same.”

“ The city or fortress which may be garrisoned
“ by soldiers.”

In volume 5 of Febrero-Novisimo, p. 708, the
word Presidio, is defined as follows: “ The plaza

“ or place designed for the punishment of delin-
“ quents. The punishment or penalty which Is
“ imposed on certain delinquents, of serving in
“ some Presidio at the labor assigned to them.”

“ A prison in the large cities for the confine-
“ ment of persons to be imprisoned for a short
“ time (City Prison.) ”

The word, or term, seems to express the same
general idea in the Spanish as the words fortress,
fort, garrison or prison do in the English language
and it does not appear that either the Presidios of
Spain or Mexico had anything more than juris-
dictional boundaries. :

They neither owned nor claimed any interest in
lands, but were one of the branches of the Gov-
ernments of Spain and Mexico, and, if occasion re-
quired, they doubtless occupied sufficient of the
public lands for their convenient uses; yet it is

23

hardly necessary to say that they had no power
to trench upon private rights; nor could they ex-
ercise any right of occupation or control over the
lands of the Pueblos.

It is of course difficult to prove a negative, and
we shall rest our case on that point by asserting
that no Spanish nor Mexican law can be found
which shows, or tends to show, in the remotest de-
gree, the least semblance of title to lands in the
Presidios.

As appears from the Mexican archives, there
were four Presidial establishments in Upper Cali-
fornia, to wit: at San Diego, Santa Barbara,
Monterey and San Francisco ; that of San Fran-
cisco being designed for the protection of the
neighboring Missions of Dolores and Santa Clara,
the settlements that might be formed in the neigh-
boring region, and new Missions that’ might be
established.

Report R. C. Hopkins, p. 1, Dwinelle's Col.
Hs.

The jurisdictional boundaries of the Presidio of
San Francisco doubtless extended to those of the
Presidio of Monterey; this is indicated by the
fact that possession was given to the “ Fundadores”
(first settlers) of the Pueblo of San José, by Don
Josef Moraga, commandante of the Presidio of
San Francisco.

Escriche says (see “ Presidio ”) that the demar-
cation of each Peninsula (Spanish) Presidio, are
regulated in the following manner :

 

 
24

« That of the Presidio of Barcelona shall em-
“ brace all the Pueblos included in the provinces of
« Barcelona, Lereda, Gerona and Tarragona.

« That of the Presidio of Valencia shall em-
« brace the provinces of Valencia, Castellon, Al-
« cante, Maricia, Albecete and Cuenca,” and so on,
giving all the Presidios in Spain, and show-
ing conclusively that a Presidio was nothing
more than a military department, including within
its jurisdictional limits several, or any number of,
Pueblos. So that the Presidios exercised such
military or political power as were conferred on
them by law within their general limits, while the
Pueblos therein were seized in fee of four leagues of
land each, for the benefit of the inhabitants thereof ;
and thus it was that the Presidio of San Francisco
formerly included within its military jurisdiction
the Pueblo of San José ; but it does not appear
that the Presidio, for that or for any reason, ever
claimed to own or control any portion of the lands
of that Pueblo; onthe contrary, it does appear that
the City of San José had its title to the whole
four square leagues owned by the former Pueblo
of that name, finally confirmed by the United
States authorities.

Vide Claim of Mayor and Common Council of
San José for Pueblo lands, numbered 286 in Land
Commission and 419 in District Court, confirmed
by Commission 5th February, 1856, and in Dis-
trict Court, November 26th, 1859.

In the same manner the Pueblo lands of Mon-
terey, Santa Barbara, and San Diego, were -fully

 
25

and finally confirmed to those towns, without re-
ference to the fact that they were all formerly
known as Presidios.

Vide claim of Santa Barbara for Pueblo lands
No. 543, in Land Commission, 242 in District
Court, confirmed by District Court, March 6th,
1861. Claim of Monterey for Pueblo lands, No.
714, in Land Commission, confirmed January 2d,
1856, and appeal dismissed February rst, 1858.
Claim of San Diego for Pueblo lands, No. 5809, in
Land Commission, confirmed January 27th, 1856,
and appeal dismissed June 8th, 1857.

It is clear that the Presidios, so called, were not
considered in those instances, as having, or pre-
tending to have, any right to the Pueblo lands;
and yet, in the case of San Francisco, the Presi-
dent and the military authorities claim nearly two
thousand acres of land, under the pretense that
the old deserted Presidio, so called, had some prior
right thereto.

The entire proceeding is utterly without prece-
dent or law, and ought to be promptly annulled by
the Department.

Having shown, as we think, that the Presidio
never held, or claimed, any interest in the lands in
question ; and that the Pueblo title of the City of
San Francisco was perfect, not only under the
Mexican law, but also under the Act of Congress
of March 3d, 1851, we shall now proceed to ex-
amine the question as to the power of the Presi-
dent to make reservations of public lands without
express authority of Congress.

 
26

This brings us to an examination of the various
Acts of Congress upon the subject of reservations
throughout the United States.

ITI.

Tue PresibeENT Hap No AurTHorRITY TO MAKE

THE RESERVATION IN (QUESTION.

Section 3, Article IV, of the Constitution of the
United States, provides as follows :

“ The Congress shall have power to dispose of
“and make all needful rules and regulations re-
“ specting the territory or other property belonging
“to the United States, and nothing in this Con-
“ stitution shall be so construed as to prejudice any
“ claims of the United States, or of any particular
“ State.”

There is nothing in the Constitution giving the
President, by implication or otherwise, any power
over the disposition, or even regulation of the pub-
lic property. He cannot act without authority
from Congress, and such authority would give him
no power over the property of any person, corpo-
ration or State.

However, Congress has always legislated upon
the subject of reserving the public lands for mili-
tary uses, or other purposes, and the President has
never, previous to making the reservation in ques-
tion, presumed to act in such matters without
authority from Congress.

As early as May, 1796, Congress passed an Act

27

authorizing the President to make certain reserva-
tions therein specifically mentioned. Fide U. S.
Statutes at Large, vol. 1, p. 464, sec. 3.
Thereafter, various Acts of Congress were
passed in which that officer was empowered to
make specific reservations of the public domain :
Vide vol. 2 U. S. Statutes at Large, p. 479.
"3 y ! PP- 347,
296, 607.
Vol. 4, U. S. Statutes, Ba. 75, 364.
5 gi $ p. 116.
Brightley's U. S. Dzg., pp. 494, 549, 550,
572, 499, 501, 570.

On the 14th of February, 1853, Congress pas-

sed an Act authorizing the President to make res-
ervations for forts, arsenals, etc., in Oregon, but
limited the quantity to six hundred and forty acres
for forts, and to twenty acres for other purposes.

Vide Brightley's Digest, p. 573, sec. 627.

About the last legislation on the subject of res
ervation, is an Act reserving the Salt Springs of
Arkansas.

Vide U. S. Statutes 1876-7, p. 377.

On the 3d of March, 1853, the President was
authorized by Congress to make five indian res-
ervations in California, Utah, or New Mexico, but
he was specially prohibited from taking any lands
inhabited by citizens of California, and there is
nothing, giving by relation any validity to his proc-
lamations of 1850 and 1851.

 
28

It thus appears, that Congress always legislated
upon the subject of reservations before the Presi-
dent attempted to act.

It is true that the Pre-emption Laws, of 1841, and
subsequent Acts of Congress on the subject, make
reference to lands theretofore “ reserved by Con-
gress or by the President;” but this language is
in harmony with previous laws upon the subject,
because all of their reservations, was either made
by the Act itself, or a glause was inserted authorizing
the President so to 8

So that the pre-emption laws necessarily and
logically make reference to lands theretofore re-
served by Congress, or by the President; but we
claim nevertheless that the President never made,
nor could he make, any reservation of the public
domain without previous authority of Congress in
the premises. The Constitutional clause above
quoted prohibited him from so doing.

That the President had no authority to issue or
give validity to the reservation proclamation, so
called, of November 7th, 1850, has been fully ex-
emplified by the acts of the government itself with
reference to Mare Island, Alcatraz Island, Yerba
Buena Island, and the lands on the Suscol Rancho,
opposite Mare Island.

These tracts were all reserved by the same proc-
lamation with that of the Presidio, yet the United
States never insisted upon any rights as against
the private claimants thereto.

G.W.P. Bisselland Wm. H. Aspinwall presented
for Mare Island their claim to the Land Commis-
sioners for confirmation. These claimants alleged

29

and proved an imperfect grant made in 1841, by
Governor Alvarado to Victor Castro, from whom
they purchased. The case is numbered 307 on the
Docket of the Land Commission, and was confirmed
by the Board on the 8th day of May, 1853, and also
by the U. S. District Court, on the 7th of March,
1857.

Afterwards, the United States purchased the
Island from Bissell and Aspinwall, and paid a large
price therefor, viz: over seventy thousand dollars.

The government never relied upon the proclama-
tion of Mr. Fillmore as the foundation of any right
or title to the premases.

‘Angel Island, which was also reserved at the
same time by the President, was claimed by An-
tonio Maria Osio, under grant dated June 11th,
1839. This claim was confirmed by the Land
Commission on the 25th of October, 1854, and by
the District Court, on the 10th of September, 1853,
but the decree of confirmation was afterwards re-
versed by the Supreme Court of the United
States, (United States v. Osio,23How., U.S, p. 273),
not upon the grounds that the land had been 7e-
served by the President, for no such point was made
by Mr. Stanton who appeared for the Government;
but the Court /4eld, that the record evidence of title
in Osio was insufficient.

The Islands of Alcatraz and Yerba Buena were
also claimed under Mexican grants by Limantour,
and the claim was confirmed by the Land Com-
mmission on the 12th of February, 1856, but it
was afterwards rejected by the U. S. District

   

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30

Court, not because the Islands had been reserved
by Mr. Fillmore, but for the reason that the grant
was invalid. And so in regard to the reserve on
the Suscol grant, opposite Mare Island. The
United States never made any claim under the
proclamation, although the grant to Gen'l Vallejo
was finally rejected by the Courts.

Vide U. S. vs. Vallejo, 1 Black. 541.

So we find that the Government has never
claimed anything under the proclamation as against
private claimants, except the Pueblo lands of San
Francisco; and we submit that the difference be-
tween the legality and justice of the city’s title and
the other referred to, is not perceptible. We think
we have demonstrated that this Mexican Presidio
had no interest in any property; that the pueblo
lands, under the Spanish and Mexican law, con-
sisted of four square leagues, described as follows :
Commencing at the centre of the old Presidio
Plaza, and running to the four winds to water, and
to a line of latitude extending from the Bay to the
Ocean, so as to include, and which always did
include, (ever since the origin of the Pueblo), four
square leagues ; that for this reason the city’s land
segregated itself from the public domain, and was
not affected by the change of sovereignty trom
Mexico to the United States; that upon the ad-
mission of California into the Union as a State, in
September, 1850, she succeeded to the sovereignty
over all Municipal property within her boundaries,
and that neither the President nor the United
States thereafter, to-wit: After September, 1850,

 

31

held or retained any power whatever over the
Municipal lands in question.

This right was vested exclusively in the State,
and under the provisions of Article IV., Sec. 3, of
the Constitution above quoted, Congress itself
could take no action in reference to these Mun-
icipal lands, which would “ prejudice any claim of
the State ;” yet, it is contended that the President,
by usurping the powers conferred by the Constitu-
tion upon Congress, could take the heart and centre
of the city’s lands to the extent of nearly two
thousand acres, including the old Presidio square—
the initial point—where the description thereof
necessarily commenced,

Vide The Ordinanzas de Tierras y Aguas.
Payne & Dewey vs. Treadwell, 16 Cal,
220.

It is evident that the United States never made
such a claim as against the city, or against any
other private claimant of lands under Mexican
title; thus, even if Congress had attempted
to legislate away the rights of the city, it is
apparent that its action ought not to be sup
ported for a moment. No Act of Congress could
effect a change of proprietorship in or to the
property of the former inhabitants of the country.
This must be so, not only from an absence of
power on the part of Congress to effect such a re-
sult, but the truth is, Congress has never attempted
to pass any such law. A treaty of cession is a
deed or grant of one sovereign to another, and
transfers nothing in which he had no right of pro-

  

AEA A RA LG

A es a Area

 

 
32

perty, and only such rights pass as he owned and
could convey to the grantee. By the treaty of
Guadelupe Hidalgo, the United States acquired
no lands in California to which any person, or cor-
poration, had lawfully obtained a right or title; and
Congress cannot constitutionally, by a mere enact-
ment, deprive a citizen of his lawful estate ; and if
it should attempt it, the Courts would not sustain
such a spoliation act.

Vide U. S. vs. Perchman, 7 Peters, 87.

If Congress could not commit this act of vandal-
ism, how can it be sustained when done by the
President, who acted without a semblance of power?
The President, perhaps, believed he was reserving
lands that were formerly owned by the old de-
serted Presidio of San Francisco; but, be that as
it may, it was the veriest shadow of authority seek-
ing the remains of a lifeless myth.

It is apparent that Congress was the only
authorized agent, or arm of the Government cap-
able of dealing with these lands, if the Government
could touch them at all ; and we clearly show that
the first action ever taken by Congress in refer-
ence to them, was the passage of the Act of
March 3d, 1851, by the 14th Section of which San
Francisco as a pueblo was declared to be the
owner thereof under grant, as of the 7th of July,
1846. So, on one side we have Congress with
sole and perfect authority, declaring the city to be
owner of the whole of this property, and on the
other, we have the President, and the military
authorities, asserting, without power, to the con.

33

trary. Will the Department attempt to affirm
the woud acts of the President, or will it follow the
constitutional Acts of Congress legally passed ?

1V,

The Reservation Made by the President is
Void for Uncertainty in Description.

The first proclamation describes the Presidio
reservation as follows :

“From a point eight hundred yards south of
“ Point San José to the southern boundary of the
“ Presidio, along the southern boundary of its
“western extremity, and thence in a straight line
“to the Pacific Ocean, passing by the southern ex-
“tremity of a pond that has its outlet into the
“ channel between Fort Point and Point Lobos.”

It appears, at a glance, that this description fails
to give either an eastern or northern boundary,
and, in effect, is no description at all.

Afterwards, on the 31st of December, 1851, this
description was changed so as to read as follows :

“The Presidio tract and Fort Point, embracing
“all the land north of a line running in a westerly
“ direction from the south-eastern corner of Pre-
“sidio tract, to the southern extremity of a pond
“lying between Fort Point and Point Lobos, and
« passing through the middle of said pond and its

 

 

 
31

“outlet to the channel of entrance from the
“ Ocean,”

Vide Dwinelle's Col. Hist. (addenda) p. 221.

It will be seen that both of these descriptions
call for the southern boundary of the Presidio,
which would carry that line to a point somewhere
south of the Pueblo of San José—a distance of
sixty or seventy miles southerly from San Fran-
cisco—for the southern boundary of the old Pre-
sidio undoubtedly extended to some point south of
San José, and until it intersected the northern
boundary of the old Presidio of Monterey.

But, of course, we do not think the President
intended to give the reservation any such prepos-
terous boundary, and we must, therefore, ascertain,
if possible, what exterior lines were intended.

In the first description, the southern line was
surely and clearly described as being the southern

boundary of the Presidio, which would necessarily -

be a latitudinal line somewhere between San José
and Monterey ; but the second description of the
southern boundary calls for the south-eastern cor-
ner of the“ Presidio tract,” thence “to the southern
“ extremity of a pond ” (supposed to be Mountain
Lake) “ passing through the middle of said pond.”

Now, we insist that there never was any sub-
division known as the “ Presidio tract,” except the
tract laid out by Mr. Fillmore, in November, 1850;
nor did the Presidio claim or possess any of the
Pueblo lands, except such portion as was covered
by the old buildings, formerly used by the officers
and soldiers; and when the President used the

35

expression “south-eastern corner of the Presidio
tract,” he necessarily intended the south-eastern
corner of the Presidio buildings. There was no
other tract or parcel of land to which he could re-
fer in that connection.

A survey made, according to that description,
would still leave the Government in possession of
more than a thousand acres of the pueblo lands
for its own uses—a tract large enough, in any
view, to take from the inhabitants without right
or compensation.

That the survey should be made by commenc-
ing at the south-eastern corner of the Presidio
buildings, is also apparent from the fact, that a line
projected southerly from that corner to the “south-
ern extremity ” of the pond, would pass through
the middle thereof, and thereby substantially con-
form to the description called for in the last pro-
clamation of the President.

We have already said that, in our opinion, this
survey should. be set aside and another one
ordered to be so made, as to only include in the
so called Government reservation, such lands as
the old Presidio possessed under the former Mex-
ican Government. We have endeavored to show
that any survey executed according to the claim of
the military department, will be an act of gross in-
justice to the inhabitants of San Francisco, and
one which the general Government cannot afford
to legalize and perpetuate.

It results, then, from this portion of our argu
ment, that the Presidio reservation, under either
of the proclamations of Mr. Fillmore, is too un-

   
  
  
  
 
 
  
 
  
 
  
 
 
 

  
 
 
 
 
 
 

 

  
 
 
  
 
 
  

er BRR A A

  
 
  
  
  

 

    
36

certain in its southern boundary to be located at
all, unless the south-eastern corner of the Presidio
buildings are taken as the point of commencement,
and running thence, southerly, to the southern ex-
tremity of the pond in such manner as to pass
through the centre thereof. There can be no
other reasonable conclusion, if we follow the last
description made by the President, in December,
1851; and if we take the first boundaries estab-
lished by him, in November, 1850, and go to the
southern boundary of the Presidio of San Fran-
cisco, we necessarily reach a point somewhere
south of the pueblo of San José.

As we have seen, it is clear the President
did not mean to take in all the lands to the
distance of sixty or seventy miles south of San
Francisco, and, therefore, we take it that all parties
must agree upon the south-eastern corner of the
Presidio buildings as constituting the starting point
in the southern boundary of the reservation; it is
either that, or nothing, because there never was
any other piece of land in the pueblo of San Fran-
cisco corresponding to the term ¢ Presidio tract.”
But the description is deficient, under any circum-
stances, for the want of an eastern boundary. The
proclamation says the line runs westerly from the
south-eastern corner of the Presidio tract to the
southern extremity of the pond, and thence to the
ocean.

There are no other lines given, and the descrip-
tion is void, because it fails to include any specific

piece of land.

37
V.

We now come to the 27th of February, 1866,
when Mr. Stratton, as Deputy U. S. Surveyor for
California went into the field to make the survey
of the Presidio reservation.

His report to LL. Upson, Esq, then U. S. Sur-
veyor General for the State of California, is on file
in this case, from which it appears that he did not
follow the boundary lines as fixed by the Presi-
dent in December, 1851; but, on the contrary,
fixed an arbitrary line of his own on the south and
east.

The latter part of his report says :

* ? 2 * * « And on the 26th,
“ having established the position of the corner
“ monuments of the southern boundary of the
“ Presidio reservation, I, in person, notified Major
“ Allen, commanding the post, who expressed the
“ same gratification that Major Bowman did, viz. :
“ that the lines of the reserves would at last be
“ officially surveyed and settled.” % ®

® 3 ’ % * The correct line
of the reservation, as / had established it, was then
pointed out by me, after which I proceeded with
my surveying duties. . (The italics are ours, and
are intended to give emphasis to the statement,
that /e, /limself, established the south-eastern
corner instead of Mr. Fillmore.)

Mr. Stratton gave no reason for establishing
the corner where he did, nor is any excuse offered
for running the southern boundary around the
southern side of the pond, when the President's

¥*

 
38

descriptton declared that this line passed through
the centre of the pond.

From all the circumstances surrounding the
survey, it would seem that Mr. Stratton found
the reservation, as surveyed by lum, pretty effect-
ually bounded by bayonets, and the lines were
established in accordance therewith.

The military department has insisted on claim-
ing these lands, because it had “orders” from
head-quarters so to do, without reference to
law or justice in the premises. But we submit
that the whole case is now before the proper
legal authorities of the country, who will care-
fully weigh every point and circumstance therein.
and do even and exact justice to all parties
interested. We take it for granted, that the Gov-
ernment of the United States cannot afford to do
otherwise.

In referring to surveys and lines of surveys,
as well as to the position of the old Presidio build-
ings, we have deemed it unnecessary to annex
plats or maps thereof, because all such data and
evidence is already before the department, showing
fully all lines and proposed lines herein mentioned.

We appear in the case by the courtesy of W. C.
Burnett, Esq., City and County Attorney, as the
attorneys for several of the claimants of these lands,
who believe themselves to be entitled thereto as
the cestuis que trust of the city, and who have ex-
pended large sums of money in the payment of
taxes lawfully levied thereon by the City and
State.

We append hereto copies of the petition and

 

39

affidavits of Daniel Ryan and C. E. Woodbury,
which were used before the Board of Supervisors
of the City and County of San Francisco, under
the provisions of “ Order No. 748, to expedite the
“ settlement of land litles in the City and County
“ of San Francisco.” These copies are marked
“ Exhibit A,” and fully explain the equities of our
claim.
In ConNcLusION,

We submit the following propositions :

First—That the City of San Francisco was, on
the 7th of July, 1846, a Pueblo seized in fee of all
lands now held by the military authorities under
the name of the Presidio reservation, except, per-
haps that portion thereof which was actually oc-
cupied by the buildings of the Mexican Presidio
or barracks.

Second—That the 14th Section of the Act of
Congress of March 3d, 1851, was an acknowledg-
ment and grant of such title in and to the city,
and substantially nullified all the acts of the
President and military in reference thereto.

Third—That the proceedings of the President
and the military authorities, in reference to said
lands, were coram non judice, and void ab initio.

¢

Fourth—That the reservation of the pretended
‘ Presidio tract” is void for uncertainty in
description.

 

 
40

Fifth—That there never was any title or pre-
tense of titleto these premises in the Presidiounder

the Spanish or Mexican law.

Sixth—I1f any validity can be attached to the
reservation as made by Mr. Fillmore, the south-
eastern line should commence at the south-eastern
corner of the old Presidio buildings, as possessed
and used by the Mexican Government.

Seventh— That the exception made in the con-
firmation by Judge Fields in favor of the United
States, does not include nor apply to reservations
made by the President without authority, nor to
reservations which are void for uncertainty in de-
scription, 7. e., description which does not enable

the surveyor to Zrace the boundary lines without
the necessity, on his part, of establishing the cor-
ners, or producing the boundaries himself, or as
dictated or claimed by the officers of the U. S.
Army.

We respectfully claim that under the above
conclusions the survey in question should be set
aside, and a new one ordered, which may give to
San Francisco, and its inhabitants, their rights in
the premises. A government of law, formed by
law, and administered according to law, ought not
to permit the continuance of this crime against
private rights.

Respectfully submitted,
C. R. GREATHOUSE,
Euc. B. DRAKE,
Attorneys for claimants under the City and
County of San Francisco.

41
EXHIBIT A.

Petition to the Board of Supervisors of the City
and County of San Francisco:

The petition of Daniel Ryan and others, resi-
dents of the City and County of San Francisco,
respectfully shows :

That your petitioners, by themselves and their
tenants, and those under whom they claim or de-
rive possession, have been from and including the
8th day of March, A. pb. 1866, and still are, in the
possession of the following described lands, situate,
lying and being in the City and County of San
Francisco, to wit: That tract of land bounded *
by a line beginning in the line between Township
one (1) and two (2), south range six (6) west of
the Mount Diablo meridian, ten chains west from
the line between ranges five (5) and six (6), and
running thence east along said section line forty
(40) chains ; thence south thirty-six chains; thence
due west forty chains to a point thirty-six (36)
chains due south from the starting point; and
thence north to the point of beginning, being part
of the northeast quarter of Section one (1), Town-
ship two (2), south range six (6) west, and part of
the northwest quarter of Section six (6), Town-
ship two (2), south range five (5) west of Mount
Diablo meridian, and containing one hundred and
thirty-five (135) acres, more or less.

That said land is embraced in the lands de-
scribed in the decree of Justice Field of the U. S.
Circuit Court, confirming the claim of the City

 
42

and County of San Francisco, entered November
2d, 1864, in the Circuit Court of the United States,
for the Northern District of the State of Califor-
nia, and has not been sold, leased, dedicated, re-
served or conveyed by authority of the said City
and County of San Francisco, or the United
States, or to any one for any one for any purpose.

And your petitioners hereby ask that a grant of
said lands be made to them under the provisions
of an Ordinance of the Board of Supervisors of
said City and County, entitled “Order No. 748"—
To expedite the settlement of Land Titles in the
City and County of San Francisco.

Dated at the City and County of San Francisco
June 29th, A. D. 1867.

DANIEL Ryan.

City and County of San Francisco ss.

Daniel Ryan, being duly sworn, says : That he
is one of the persons named in the said petition;
that he has read said petition and knows the con-
tents thereof, and that the statements therein con-
tained are true.

DANIEL Ryan.

Sworn to and subscribed this 29th day of June,
A. D. 1867, before me,
Joun WHITE,
Notary Public and Clerk of Commattee
on Quiside Lands.

43
City and County of San Francisco p ss.

Daniel Ryan, being duly sworn, says: That all
taxes which have been assessed on the land de-
scribed in the within petition during the five fiscal
years preceding the year beginning the first of
July, 1866, have been paid, and that application
has been made to have said claim delineated on
the map of Outside Lands.

DANIEL Ryan.

Sworn to and subscribed before me, this 29th
day of June, A. D. 1867.

Joun WHITE,
Notary Public and Clerk of Commattee
on Outside Lands.

In Committee of the Board of Supervisors on
Outside Lands. .

In the matter of the Petition No ht
of Daniel Ryan, et al. + 321.

Daniel Ryan, being duly sworn, deposes and
says: I am one of the petitioners herein; I en-
tered into possession of the premises described in
the petition in 1853; I built a house and dug a
well on the premises, and made some other im-
provements ; I lived in that house during the
whole time I remained there, to wit: from 1853
to 1864.

In 1864 I sold a part of the premises to Mr. C.

 
44

E. Woodbury, and put him in possession of the
whole, and I left immediately and went to Ireland.
There was no fence around the tract, but the
boundaries were marked out by posts set at the
angles by the surveyor at the time he surveyed
the tract in 1853; before I entered the posts were
marked by letters. 1 entered into possession
under a pre-emption claim, and my notice of pre-
emption referred to the stakes by the letters upon
them.

The boundaries, however, marked by these
stakes included some land on the east which was
claimed by Obed Chart, and which is not included
in this petition. DANIEL Ryan.

Calvin E. Woodbury, being duly sworn, de-
poses and says: I have known the premises ever
since 1857.

I have heard the testimony of Daniel Ryan, the
preceeding witness, and so far as it relates to what
took place, after 1857, I know it to be true in
every particular.

In 1864, I purchased an interest in the prem-
ises, described in the petition from said Daniel
Ryan, and took possession of the whole from him,
and immediately leased it to the tenants of my-
self and Nugent and Judah, who had possession
of the tract adjoining this on the west, and ever
since that time the whole tract has been in pos-
sesion of the tenants of the adjoining tract on the
west, who have had leases from myself and Ryan.

The possession of Ryan and myself, and our co-
tenants, has been continuous, exclusive and un-

45

disputed, from 1864, to the present time, except,
as I shall state. The tract described in the petition
has never been fully or entirely enclosed. It has
been enclosed in a common enclosure with the
tractsadjoining on the eastand west, ever since about
the year 1861, except on the northerly side. The
military authorities, having possession of the Gov-
ernment Reserve, have not acknowledged my pos-
session to the extent claimed in my petition ; and
have refused to permit me to fence it on that line,
but they have permitted our cattle to run across
the line upon the Government Reserve, and have
never disturbed or disputed our possession, except
so far as to refuse to permit us to build a fence
upon our line.

All taxes which have been assessed upon this
land during the five fiscal years preceeding the
year beginning July 1st, 1866, and since amount-
ing to $1,313 have been paid by me. My
deed from Ryan describes the premises by metes
and bounds and substantially, as they are described
in the petition.

Carvin E. WooDBURY.

STATE OF CALIFORNIA,
City and County of San Francisco.

I, John White, a Notary Public, in and for the
city and county of San Francisco, State of Cali-
fornia, dully commissioned and sworn, and Clerk
of Committee on Outside Lands, appointed under
the provisions of Order No. 748, of the Board of

 
46

Supervisors of the city and county of San Fran-
cisco, approved on the 22d day of December, 1866,
do hereby certify that the witnesses named in the
foregoing depositions, were, by me, duly sworn to
testify to the truth, the whole truth and nothing
but the truth, that said depositions were reduced
to writing, by me, and carefully read to said wit-
nesses, and being corrected by them, were sub-
scribed by said witnesses, in my presence.

In testimony whereof I have herunto set my
hand and fixed my official seal this eleventh day
of July, 1867.

Jounx WHITE,

Notary Public, and Clerk of Committee on Out-

side lands.

I, John H. Russell, Clerk of the Board of Super-
visors, City and County of San Francisco, hereby
certify that the foregoing are true and correct
copies of petition of Daniel Ryan, No. 521, for a
portion of Outsine Lands. Also copy of evidence
of Daniel Ryan and Calvin E. Woodbury, to-
gether with certificate of John White, Clerk of
Committee on Outside Lands, as the same appear
on file in this Office.

In witness whereof, I hereunto place my hand

(having no seal of office) this 7th day of January,

A. D. 1870.
Joun H. RUSSELL,

Clerk.
By Tuos. H. REYNOLDS,
Deputy.

47

STATE OF CALIFORNIA,
City and County of San Francisco.

I, the undersigned, a Notary Public in and for
the city and county aforesaid, duly cominissioned
and sworn, do hereby certify that I have carefully
compared the annexed copy of thd petition of
Daniel Ryan, No. 521, with evidence, etc., taken
for grant of portion of Outside Lands, with original
of which it purports to be, and that it is a true and
literal copy of such original petition and evidence
for grant of Outside Lands.

Witness my hand and official seal, this 16th day
of September, 1877.

[sEAL.] James D. Craig,

Notary Public.

 
 

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