MICROFILMED 1986 UNIVERSITY OF CALIFORNIA - BERKELEY GENERAL LIBRARY BERKELEY, CA 94720 COOPERATIVE PRESERVATION MICROFILMING PROJECT THE RESEARCH LIBRARIES GROUP, INC. Funded by THE NATIONAL ENDOWMENT FOR THE HUMANITIES THE ANDREW W. MELLON FOUNDATION Reproductions may not be made without permission. THE PRINTING MASTER FROM WHICH THIS REPRODUCTION WAS MADE IS HELD BY THE MAIN LIBRARY UNIVERSITY OF CALIFORNIA BERKELEY, CA 94720 FOR ADDITIONAL REPRODUCTION REQUEST MASTER NEGATIVE NUMBER 26- 0 2-09 AUTHOR: U.S. Genera.| Land Office. TITLE: U.S. CommiSSioner- e PLACE: San Francise o DATE: 1€7% F VOLUME 3:5 F36A ~ CALLsap/8 MASTER %¢~ F869 S3P18 -V, 3S U.S. General Land Office, U.S. Commissioner J, A, Williamson's decision, pueblo lands of San Francisco, delivered Nov, 11, 1878, San Francisco, §, Farjeon, Book and Job Printer, 1878, [10] p. 25cm, (Pamphlets on San Francisco, v, 3, no, 5] Signed: J, A, Williamson, Commissioner, l. Land tites,~ San Francisco, 2, San Francisco = Lands, 3, Stratton Survey, San Francisco. 4. San Francisco, Presidio, 5, Pueblo lands - San Francisco, I, Williamson, James Alexander, 1829-1902, [Series) ( CU-B 68 — FILMED AND PROCESSED BY LIBRARY PHOTOGRAPHIC SERVICE UNIVERSITY OF CALIFORNIA BERKELEY, CA 94720 JOB NO. 8/6 0/4]0 DATE 2 8 6 REDUCTION RATIO Q DOCUMENT "SOURCE THE BANCROFT LIBRARY = zz fl22 a2 iz I22 ll 22 ez [Ie 22 lle flit le I= ll ND On Il: ll MICROCOPY RESOLUTION TEST CHART NATIONAL BUREAU OF STANDARDS STANDARD REFERENCE MATERIAL 1010a (ANSI and ISO TEST CHART No. 2) (OVO EER EL LVR INCHES METRIC 1 13 | 4 iH wit ot 2 3 4 5 6 7 8 9 10 { me talent tattle] TR dag ®. Tn EN, ee ™ et Retake of Preceding Frame U. S. COMMISSIONER J. A. WILLIAMSON'S DECISTOIN PUEBLO LANDS OF SAN FRANCISCO. SAN FRANCISCO: S. FArJeoN, Book AND JoB PRINTER, 621 SANsoME Sr. 1878. QL i) TES 1 TLE Arn meas ie AN EN —._p— pin in sol rl TUN TES TN IN TN op fe ~ p— — oo g— J 9 11 621 SANsoME ST. ed Nov. . SAN FRANCISCO el Book AND JoB PRINTER, 1v WILLIAMSON U. S. COMMISSIONER DHCISTOIN AN FRANCISCO. S FaArseoN, sn — A fo) A sh ( Sr —_— — _— — __— _— __— __r—_ — PUEBLO LANDS J PRIVATE LAND CLAIMS, PueBrLo Lanbps op SAN I'rancisco. ’ ’ . : 0 ’ been acquiesced in by the city that it must be considered that the city has waived its protest or it is estopped by its acts from denying its correctness. As the survey bounding the Presidio military reservation, fol- lows the conjectural map furnished by the military authori- ties upon which the reservation was made, and which has for years been considered correct and as parties have pur- chased upon that belief, the Survey must be adhered to. Equitable estoppel is held to apply as against both the protest of the city and the military commander, DEPARTMENT oF THE INTERIOR, GENERAL LAND OFFICE, WasHINGTON, D. C., Nov. 11,1878. U. S. SurvEYor GENERAL, , San Francisco, Cal. : SIR: I have examined the official survey of the Pueblo lands, confirmed n District of Cali- fornia, on the 18th day of May, 1865, and the act of Congress entitled “An act to quiet title to certain lands within the cor- porate limits of the city of San Francisco,” approved March 8, 1866. The survey was made upon the request of the city, and be- tween the months of March, 186 7, and January, 1868, by James T. Stratton, U. S. Deputy Surveyor, under the provisions of the act of Congress entitled “An act to expedite the settlement of titles to lands in the State of California,” approved July 1 1864, which provides (Sec. 1), that at the ‘expiration of the ninety days allowed for filing objections and proof, by any party i icati of the survey and 1d-notes, objections t the same shall be this office for approval or other action. A copy of the survey and plat of said lands, together with divers objections thereto and proofs with your report thereon, have been received and duly considered. 1, 1864, it is made the duty of ornia in making such survey, to n as closely as practicable when. specific boundaries of the claim, eo designated within which the location shall be as hut when only the out-houndaries ar the quantity confirmed is to be taken, in one tract of compact form. uit Court in this case ratified by act of Congress, confirms to the city “a tract situated within the seounty of San Francisco, and embracing so much of the extreme supper portion of the peninsula above ordinary high water mark was the same existed at the date of the conquest of the country, 7, 1846, on which the city of San Francisco is situ- square leagues, said tract being tr.c Bay of San Francisco, on the wwest by the Pacific Ocean, and on the south by a due east and wwest line, drawn so as to include the arca aforesaid, subject to «the following deductions: Such parcels of land as have been wheretofore reserved or dedicated to public uses by the United «States, and also such parcels of land as have been by grants from lawful authority vested in private ownership and have «heen finally confirmed to parties claiming under said grants by «the tribunals of the United States, or shall hereafter be finally weonfirmed to parties claiming thereunder, by said tribunals in “proceedings now pending therein for that purpose, all of which «said excepted parcels are included within the area of four ugquare leagues above mentioned, but are excluded from con «firmation to the city. «This confirmation is in trust for the benefit of the lot holders «under grants from the Pueblo, town, or city of San Francisco, wor other competent authority, and as to any residue in trust «for the use and benefit of the inhabitants of the city.” In following the description aforesaid in said decree, the deputy surveyor has assumed to establish the line of ordinary high water mark as it existed July 7, 1846, along the bay and ocean on the north, east and west of said tract, and has estab- lished as its southern boundary a due east and west line, s0 as to include an area of four square leagues, such as are intended in Mexican grants, and comprising 17,755 77-100 acres. The land supposed to Le below the ordinary high water mark of Tth of July 1846, and designated as salt marshes, are excluded from both the survey and measurement of area. The survey locates and bounds divers parcels of land, which excepted from the lands confirmed to the ut included in the measurement aS part of the four leagues, viz.: 1st. The Presidio and Point San Jose military reservations, two lots in San Francisco, and divers Is and tracts designated on the plat by numbers. \d plat made therefrom, certain protests and he city of San Francisco which nearly as practicable The decree of the Cire eviz.: July vated, as will contain four “hounded north and cast by are supposed to be city by the decree, b parce To this survey al objections were duly filed by t are substantially, t in fact follow the line of ordi- 1st. That the survey does no nary high-water mark as it existed the Tth of July, 1846 ; that certain tracts along the bay iilets and creeks, and designatad as salt marshes, are improperly excluded. ond. That in computing the four leagues there is error in pot excluding from measurement certain sandy and rocky wastes, accordi i, ceording to the alleged custom and law of Pueblo i 7 made under Spanish and Mexican rule | rd. That the reservation of the tract of about 5 36-100 acres near the Missic WERE 0% Dost So Mission Dolores, and marked No. 11 on the plat in gh C.S. Bernal et «l., is erroneous ; t ; g " . a . ! . oo — i i ther objection now is made that the four leagues os de ; to the city by the decree should be construed 0 A) 26 ( oT] 24 , 2 . 5 1 or a i ol to three miles statutory or geographical 3y the letter of the lt last oileution Is Rot properly aa IR aw, this last objection is not properly en 2 2 e a day. The question, however, is put at rest Tie 3 o1 3 practice of this Department for many years err po . oy " . . . . ¥ y ji ov i] Loo 13 not ordinarily employed in land meas- nt in ingland, or English colonies in America, hut it is a Fi used chiefly for marine measurements > sarge acquisitions of territory have been made, however where the term lewgue is in ¢ : lt Af Tees pin gue is in common use as a unit of land % asurement, and as such, has been adopted into Americ legislation and jurisprudence. Such adoption has not cl do legs tao fuslipes dopt as not change I ig The cases are numerous where the term league i S 2( 4 1 Ive 1 i 1 1 : : : : 3 Pew! Oss JOA in the confirmation of land titles by » SS 0 a > J T » 3 : z Cong hy 1e op ts, aes the claims were under the Span S Mexican grants. 1e common ny Ha : ) Q 3 understanding has | A 2 o has been gia confirmation in the words of the grant [ollows and adopt 1e same sense intended in the grant. To confir 4 der a Spanish or Mexie: Ant AC COU ny r 2 ; Mexican grant means to confirm Spanish or Mexican leagues. Ha F 4 FOOT 1 1 Li any years, and in a multitude of cases, surveys have I me and patents been issued without objection excepling ne race QM 1 W 1e for case, upon that understanding. The word league as 2 ype ‘ 1 i : applied to American land law, like the word wrpen, has the fal Sodienioy as in Spanish or Mexican law wheuge it i yorrowed, so that it is 1 i i § s not necessary, in a dec irmi : 5 essary, decree confirming bie se such grants, to qualify the word ae or hs was the decision in the recent case of the Rancho de 0s Palos Colorados, made by this office April 10, 1878 the question, raised for fi i Sora Bi , raised for the first time, is discussed at great ength, That decision was affirmed by the Secretary ¢ I es . . > x : Interior, and the question is no longer an open one i his De. partment. idly en If under icar i i o er the Mexican grant, the city was entitled in comput in the four leagues to exclude from the measurement an nk : 8 : x “ « sSall- ; Jor 20) Yastes such right should have been urged Hd Vey w vy established by the decree. I'he right was urged ¢ or + 1a I» djudged noi to exist, as the decree does not make such ex ceptions from the measurement. pun The surveyo yor cannot make exceptions : he eptions not made by the de- id i 3 mn ! 3 1 he dogtes dons except from confirmation to the city such 5 J 0 Ul paresk 2 il as have been by grants from lawful authority ook private ownership, and have been or shall be confirin e ji the tribunals of the United States. one such parcels confirmed by the District Court of the ed States is that of the 5 86-100 acres near the Missi MISsIon BN hin A ni diliess sR - Dolores in favor of Bernalet al. The survey thercol was con- firmed by that Court. Such confirmation has not been reversed or set aside. It is urged that Dehon, a grantee of the city, at the time in- tervened in the District Court to prevent the confirmation on arounds that were overruled, and that his appeal was dismissed because he had no title upon which to base his intervention. (sce 3d., Wallace, R., 774.) It is further urged that the city not having been a party to those proceedings, and now having its claim of Pueblo lands confirmed, it may properly object to the Bernal grant and sur- vey, which is now done on various grounds. In this case, how- ever, the surveyor is required by law to follow the decree, which excepts as we have seen, all tracts confirmed to private owners by the tribunals of the United States. The parcel mn question, and its boundary, having heen confirmed by such tri- bunal to a private person, it was properly excepted in this sur- vey and plat. (Fossat case, 2d Wallace R., 649.) The protest against the exclusion from the survey of the several parcels designated as salt marshes, involves the decision as to the true line of ordinary high water at the date of the conquest, July, 1846. The survey was made over twenty years after that date, during which time an obscure hamlet, containing a small Mexi- can population, has grown into a large American city and sea port of great commercial importance. The marshes and shal- low waters had been filled, and the coast line advanced into the bay, where wharves and docks were constructed. To ascértain under such circumstances where the shore line was in 1846 is a problem full of difficulty, and the exact truth is perhaps not attainable. It appears, however, that there have existed uuder the laws of California, at least since April, 1850, county surveyors, whos: duty it was to survey and designate the boundary lines of counties and cities, and designate their intersection and dis- tance {rom coast lines or streams, and to preserve all surveys, field notes and plats thereof in their respective offices. The decree of confirmation to the city of the Pueblo lands was not made until May, 18, 1865. On the 11th of October, same year, the U. S. Surveyor-General for California notified the city and county surveyor that he was preparing to execute a survey under the decree, and asked for data and information with reference to the lines fronting on the water. In response to this request, the city and county surveyor supplied a certi- fied copy of the field notes and records in his office of the line of segregation along the water front, according to an early survey as made by the city and county surveyor, and as re- turned to the surveyor of California, but says in his communi- cation that fe “has made no survey of the water line in the front of the city as shown by the water-lot act and map of 1851.” This early survey of the line of segregation and map of 1851, were intended to show the line of ordinary high water 4 at the time of the conquest, and to indicate the tide-flowed lands. When Deputy Surveyor Stratton commenced the survey, March 1, 1867, he reports that, on account of the natural and artificial changes that have been made in the water line of the city since its occupation by the Americans, he was compelled to rely entirely upon the first official map of the city made by Win. M. Eddy, the first city and county surveyor, and certified as aforesaid and which he made the basis of this survey. I think this early and only official survey was properly fol- lowed by the Deputy Surveyor. It was made by a sworn city and county official before great changes were made, and when the real truth was, no doubt, attainable, and no apparent rea- son existed for deviating from it. The probabilities are that that early survey followed the ex- act line of high-water more closely than customary as in simi- lar surveys by United States surveyors. Instead of crossing the small and unimportant inlets and arms of the bay, as is more usual, so as to give a less tortuous line, he appears to have followed all their windings in the endeavor to literally establish the ordinary high-water line, and which, as intimated by Judge Field in the case of Tripp vs. Spring in the United States Cir- cuit Court, to which our attention is called, makes a very sin- gular boundary. He may have considered this to be his duty, however, in segregating the tide-flowed lands of the State. Such survey, however irregular it leaves the eastern and northern line, has been adopted and acted upon so long that a very strong case of error or injustice should now be required for its overthrow. Six respectable witnesses concur in opinion that one of the marshes designated as below the ordinary high-water line in 1846, was partly a fresh water marsh, and that the other, near the Mission Dolores was only occasionally overflowed by the tides. Three of these witnesses went to that State in 1849, or later, and none seem to testify except from such knowledge as c'tizens generally might have who were there in 1846 and who had no occasion to make a special survey, or to keep any data of the lines. No monuments were erected, no survey made, nor record kept by them. Such evidence should hardly be allowed to overthrow an official survey made so many years before under so favorable circumstances, and when nothing is shown to cast doubt upon the honesty and good faith of the surveyor, chosen by the people or authorities of the city and county now objecting. Any doubt that may exist as to the correctness of that survey seems to be solved, however, by the general acquiescence therein by the city and county, as well as by the State officials and public at large. ; After the protest made in this case, the Surveyor-General of the State certified to the State board of tide land commission- ers a map of the survey according to the same field notes and map furnished to Mr. Stratton, and thereupon, March 19th, 1869, that board, including the mayor of the city and county of San Francisco, the president of its chamber of commerce, 2) certify that the map correctly exhibits the water line front of the city and county, together with the reservatious as estab- lished and adopted by said board, under the act to survey and dispose of certain marsh and tide lands belonging to the State approved March 30th, 1868. If the so-called salt marshes were below the ordinary high-water line of 1846, then they were the property of the State, without special act of or grant from Congress. Pollard vs. Hagan, 3d How. 212. McCready ve. Virginia, 94 U. 8. R. 394. Even when the sea or bay only is named as a boundary, it is held that the ordinary high-water line of the sea or bay and its arms is intended, =o that salt marshes below that line are properly excluded from the sarvey as belonging to tlie State. U. 2. vs. Pacheco, 2d Wallace 387. The State claimed those salt marshes as lands telow high water as shown by the carly surveys and maps of the county survevor, and when the same survey was adopted and approved by the United States survey, and it appeared there was no objection to the line made by the United States, the State board assumed that the question was settled, and caused the land to be platted for the purpose of sale. Afterwards, March 4, 1870, the city and county by its board of supervisors by its order No. 911, provided for by the adop- tion of said map, its streets, alleys and reservations, and the State Board proceeded to offer for sale and to sell the parcels, not reserved in pursuance of said legislative act. These sales were matter of public notoriety, and hundreds of people pur- chased of the State, without, so far as we are advised, any pro- test or warning on the part of the city of its claim to the land so being sold. These numerous purchasers took possession of the lots so purchased, and many of them have erected houses, and made costly and valuable improvements thereon under the belief that the title of the State acquired by them was undis- puted. Indeed the city in 1875, desiring to make an addi tion to one of the reservations made by the State went to the State Licard and purchased the land, nearly 30,000 feet, the same as private individuals had done before. It also appears that in 1876, the city brought suit against Ellis and divers others to recover numerous parcels of these so called salt marshes. The city alleged her ownership to have dated from the 27th March, 1874, and on the trial stipulated that the lands were portions of the said salt marshes, and owned by the State down to that date. These acts occurred while the protest of the city was on file in this office. it is true, yet its consideration was not urged by the city, nor any action taken hostile to this claim made by the State under the county and United States survey, though the people continued their traffic in the State titles. I think the long acquiesence of the city in the survey, and both tacit and positive recognition of its correctness amount to a waiver of her protest filed in your office. Indeed, this seems to have heen the opinion of the board of supervisors of the county re- 6 speeting another part of the survey, against which Ord filed a protest Nov. 5, 1868, because it gave the city too much and the milltary reservation too little. In 1874, said board, by its resolution No. 4,860, asked Con- gress to confirm the survey at that point, because upon the faith of its correctness, the city had assumed to plat and sell the very ground which General Ord, in his protest, claimed to belong to the military reservation. The protest, not being actively areed, was supposed to be abandoned, or, as stated in the resolution, no objection was made to the said survey.” This argument is still stronger as against the ohjections now areed by the city and county to the survey of high water line. “Tt is a maxim of the law that one who does not assert his claim when he ought, shall not be heard when he would. Under this maxim a man who purchases in good faith of a pre- tended owner, is protected against even the real owner who stood by and knew of the purchase but said nothing. Bigelow on Estop., 434 (2d Ed.), and cases cited. Lucas vs. Hart, 5th Towa R., 415; Bronson vs. Chappel, 42 Wall R., 681. That cities and counties are bound by the same equitable rule of estoppel has been decided in numerous cases, especially illus- trated where their bonds have been illegally sold with their knowledge and silence. Big. Estop., 423. The cases in which these equitable principles have been applied are so numerous and well known as not to require particular citation. The acts of the city or State will not estop or hinder the United States from making the proper survey and patent, but having made a survey according to the light of the best evidence at command, estoppel may properly be urged as against the protest and ob- jections of private claimants. The objections of the city to the survey of the high water line ure, therefore, overruled. It is claimed, but not very clearly shown, that the city has assumed ownership, and disposed of lands down to the south line of the Stratton survey. If this be true, it 1s of itself a virtual abandonment of the objections to the exclusion of the salt marsh from the survey, for except for such exclusion the south line must be located further north. The city cannot have the four leagues given by the survey and the salt marshes in addition. There is also a protest by Gen’l Ord in behalf of the United States against the survey in establishing the eastern and south- ern line of the Presidio military reservation. When the survey was ordered, there was among the data sent from this office a certified copy of a map or sketch, which _ had been furnished by the War Department as a conjectural outline of the reservation as modified and reduced by the proc- lamation of President Fillmore of Dec. 31, 1851. The south- east corner of the reservation and the south side of a pond, are the only points designated in the description of the southern and eastern boundaries by the President. The south-eastern corner was the uncertain point. In the conjectural sketch aforesaid or outline of the reser- vation laid before the President when its reduction was re- commended and adopted, the south-east corner is found in u tangent drawn from the south side of the pond to a point eight hundred yards south of point San Jose, as established by the Stratton survey. This, if correct, left the south line estab. lished, but the cast line undetermined. It appears, however, by affidavits that the board of officers making the recommenda- tion for the reduction, planted a cannon at a point intended for the south-cast corner of the reservation. This cannon, however, was soon removed by persons-unknown and the cor- ner left unmarked. When Stratton made his survey he conferred with the local military authorities, and received their assistance in establish- ing the lines of the reservation. Gen'l McDowell was then in command, but it does not expressly appear whether he as- sented to the survey. Iis successor, Gen’l Ord, protests that the survey is erroneous, and that the true south-eastern corner is south and east of that established by Stratton, and proves that the cannon was planted where he claims the corner to be. It also appears that the city, assuming the survey to be cor- rect, took possession up to Stratton’s south line, platted the land as city property, and sold lots to divers people, who took possession ~f the same. Other affidavits show that other portions of the disputed ter- ritory have been in the peaceable possession of other citizens for many years. There was nothing among the records or official papers to designate the southern boundary of the res- ervation down to the time of the Stratton survey, save the conjectural map, used when the proclamation was issued, and that seems to leave only the eastern line in conjecture. When the official survey adopted the same southern line, it only followed what the map supplied by military authority had long indicated as the true line, and what has since been ad- hered to by the city and its grantees. Had the military authorities deemed it important to estab- lish a line other than the one indicated in their conjectural plat, it would seem to have been their duty to have demanded its establishment beyond doubt, and not allow a false represen- tetion of it to be perpetuated. This arcament does not apply with so mach force against the objection to the eastern bound- ary as the plat aforesaid leaves it entirely conjectural. But that line has since been established by an act of Congress ap- proved May 9, 1876, (Vol. 19, p. 02,) along the west side of Lyon street, west of the Stratton line and still farther reduc- ing the reservation. I conclude the survey of the Presidio military reservation should not be disturbed or modified, ex cept to conform with said act of Congress, which will not re- quire a new survey. No other objections or protest against the survey having. been filed, the survey and plat are hereby approved. You will notify all parties in interest of this decision, and allow them sixty days within which to appeal to the Hon. Sec retary of the Interior,and at the expiration of said sixty days you will promptly report the proeeedings had pursuant to said notice. Very respectfqlly, your ob’t servant; J. A. WILLIAMSON, Commissioner. ~~ OF TITLE