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 {6- 01 0 6 AUTHOR: Burnett, Wellingtsn C. TITLE: Brie€ on behalf of --. PLACE: L np. ‘ 1 | DATE: C I¥71 VOLUME 3:2 F869 : ~ CALL ssi MASTER °° NO. V3 NEG. NO. 02.06 F859 S3P18 \. 3:2 con Burnett, Wellington C Brief on behalf of appellant, by W,E. Burnett and E, B, Drake, [n.p., 1879] 10 p. "27cm, [Pamphlets on San Francisco. v. 3, no, 2) Cover title, At head of title: United States Land Department, Before the Hon, Secretary of the Interior on Appeal from the General Land Office, City of San Francisco, appellant vs, United States, appellee, 1, Land titles, - San Francisco. 2, San Francisco - Lands, 3, Stratton Survey, San Francisco, 4, Wheeler Survey, San Francisco, 5. Pueblo lands - San Francisco. 6. San Francisco, Presidio, I, U.S. General Land Office, II. U.S. Dept, of the Interior, III, San Francisco vs. the United States, (Series) CU-B 68 FILMED AND PROCESSED BY LIBRARY PHOTOGRAPHIC SERVICE UNIVERSITY OF CALIFORNIA BERKELEY, CA 94720 JOB NO. 86 6| | 1/0}4|0 DATE 2| 8 i 2 a + ———— | REDUCTION RATIO 9 DOCUMENT . SOURCE BANCROFT LIBRARY 10 Hk ls = iE me I I i, I= = = 1 MICROCOPY RESOLUTION TEST CHART NATIONAL BUREAU OF STANDARDS STANDARD REFERENCE MATERIAL 1010a (ANSI and ISO TEST CHART No. 2) AUPE Erp pepe up up pepper rp pep ppp ep ep pppe ep erpeerpepepe Ip I DE upg METRIC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Ldntendecmehlusimiaminandalamdauokiubilmbi HHI UNITED STATES LAND DEPARTMENT. Before the Hon. Secretary of the Interior on Appeal from the General Land Office. CITY OF SAN FRANCISCO, Appellant. 7s. - UNITED STATES, Appellee. Brief on Behalf of Appellant By W. C. BURNETT and E. B. DRAKE. Retake of Preceding Frame UNITED STATES LAND DEPARTHENT, Before the Hon. Secretary of the Interior on Appeal from the General Land Office. CITY OF SAN FRANCISCO, Appellant. Vs. - UNITED STATES, Appellee. Brief on Behalf of Appellant By W. C. BURNETT and E. B. DRAKE. Anited States Land Department. Before the Hon. Secretary of the Interior on appeal | Srom the General Land Office. or CITY OF SAN FRANCISCO, Appellant. us. UNITED STATES, Appellee. This brief is filed on behalf of the City of San Francisco and those claiming title by purchase therefrom. The particular cause of contest is whether the dividing line between the military reservation and the City, as established by the Surveyor General of the United States for Cali- fornia, in 1867, shall be moved to the southward and eastward so as to conform to the lines of a private survey, made by Lieutenant Wheeler, in 1872. The quantity of land in controversy is about 238 acres. 2 The Wheeler survey was made for the purpose of enlarging the area of the military reservation. The Stratton survey was made to ascertain the exterior boundaries of the pueblo lands confirmed to the City, and, incidentally, to establish the dividing line between the reservation and the city lands. The exterior boundaries of the militaty reserv- ation were defined in the modified proclamation of President Fillmore, of December 31st, 1851, and the diagrams of General Totten accompanying the same. The claim of the City was confirmed by the de- cree of the Circuit Court for all the lands peti- tioned for, with certain exceptions, among which were the parcels of land previously “reserved to public uses by the United States.” The question then is, where are the southerly and easterly boundary lines of the military reserv- ation, as the same were fixed and determined by the President's modified proclamation ? Because that proclamation is the foundation of its claim. In other words, where is the dividing line be- tween the Presidio Military Reeservation and the pueblo lands of San Francisco, as confirmed by the decree of the Circuit Court. The controversy should, and can, only be solved by the officers and departments of the Govern- ment having jurisdiction of the subject matter. The Acts of March 3d, 1851, and of July 1st, 1864, providing for the settlement of land titles in California, embrace and control the whole ques- tion. 3 Section 13 of the first act provides that surveys shall be made by the Surveyor General of Cali- fornia, and section 1 of the Act of July rst, 1864, continues such power in that officer. "This legis lation is intended to carry out the treaty of Good. alupe Hidalgo, and the military department cannot lawfully interfere therewith. Vide :— United States vs. Ritchie, 17 How. 525. ~. United States vs. Fremont, id. id. {(U. 8.) 542. Townsend vs. Greely, 5 Wall. » 337 The essential and substantive acts under those laws are confirmation and survey, and the identical officers who are authorized to perform these acts and determine all questions thereunder, are plainly stated. The location and surveys of lands pertain to the Executive Department of the Government. To this point the authorities are numerous and uniform : Vide ,— Smith vs. United States, 10 Peters, 226. United States vs. Hanson, 16 /d., 196. Jourdan, et al. vs. Barrett, et al., 4 How., 160. Boggs vs. Merced Mining Co., 14 Cal. 279. In sass, Case of Jourdan vs. Barrett, ut supra, the Court distinctly held that an unauthorized survey rE ————_ 4 by one of the claimants did not confer upon him any additional rights; and so we say, here, that the unauthorized survey, by Lieutenant Wheeler, adds nothing to the area of the military reservation, nor can it change the boundaries as determined by the U. S. Surveyor General. In truth, and in law, any interference by the military authorities (without jurisdiction), to the injury of the pueblo and purchasers of lands under that title, is in conflict with Art. V., sec. XI. of the Constitution of the United States, which provides that no person shall be deprived of property with- out due process of law. We shall therefore contend that the ‘“ STRATTON SURVEY" WAS LEGALLY MADE PURSUANT TO LAW. The Acts of March 3d, 1851, and July 1st, 1364, are the only laws on the subject, and all proceed- ings, including surveys, were, necessarily, taken thereunder. The City of San Francisco was the owner of four square leagues, derived under the title of the former pueblo of that name. She has prosecuted these proceedings in good faith for the confirmation of her title and survey of the lands held thereunder. The Circuit Court confirmed her claim to four square leagues, with certain exceptions, among which are the parcels of lands “ reserved for pub- lic uses by the United States.” The Presidio Military Reservation is, therefore, excepted from, and carved out, so to speak, of the pueblo lands confirmed to the City, and it became 5 absolutely necessary, in making the survey, to ascertain, correctly, the exterior boundaries of the reservation, as defined in the President's modified proclamation of December, 1851. It was indispensable that the work should be done by an officer having authority of law so to do. The Surveyor General for California was bound, under the law, to survey the land as confirmed to the City, and in pursuance of that duty the ‘“Strat- ton Survey” (now before us), was made. It is apparent that Mr. Stratton made this sur- vey, and established the dividing line between the reservation and the City, so as to give the former all the land which the proclamation of the Presi- dent assigned to it, and that such line was, then, satisfactory to the officers in charge thereof. What more could have been done in the inter- est of both law and justice ? The survey, thus made, took the usual course in the office of the Surveyor General, and no ob- jections thereto were made or filed by the United States, or by any one representing the military authorities within the ninety days provided for by law. So far, then, as the Government, or the military authorities, are concerned, they appear to have waived all objections to the * Stratton Survey” as made. And we now submit, and respectfully claim that, it has become final, and binding, and is res adjud;- 6 cata, so far as the Government is concerned ; that it was correctly made pursuant to law; that it is the only lawful and legitimate survey in the prem- ises, and that a patent should issue in conformity therewith. IL. The * Stratton Survey ” was forwarded to the General Land Office, and, after long and careful consideration, was confirmed by the commissioner, undoubtedly for the reason that it had been cor- rectly made by the proper officer. And now it is, that the military authorities, after final official action has been taken, and after its richt to be heard under the law had expired, come and insist that the “ Wheeler Survey,” so called, should be adopted, so as to change the line established by the Surveyor General, and thereby give the reservation a much larger quantity of land than was authorized by the President. 111, ORIGIN OF THE WHEELER SURVEY. In 1850, one Benito Diaz claimed nearly all of the northern part of the peninsula of San Fran- cisco under a forged and fraudulent Mexican grant. While the proceedings on this grant were pend- ing before the U. S. Land Commissioners for California, and before it was adjudged to be a forgery, the United States obtained from Diaz a deed of conveyance for the whole of the reserva- 7 tion, as called for in Mr. Fillmore’s first procla- mation and, perhaps, a little more, and an “old cannon” was planted at the southeast corner of the tract described in the deed. Vide :— Affidavit of Milo H. oadley, attached to Brief of E. B. Drake, heretofore filed. This cannon was of intended to indicate, and did 7of indicate, the southeast corner of the res- ervation, as established by the President's modi. fied proclamation of 1851. Afterwards, as we follow the history of this matter, the Benito Diaz grant was, by the proper authorities of the Government, adjudged to be a forgery, and declared to be null and void. Right here let us remark, that the Stratton survey was made to follow the exterior boundaries of the reservation, as called for in the President's modified proclamation, while the Wheeler survey follows the boundaries and calls of the Benito Diaz deed. The latter survey was completed in 1872, and it is apparent it was made for the purpose of obtaining for the reservation, if possible, the strip of land which was zof included in the President's modified proclamation, but which was c/ezmed by the military department under the Jorged grant of Benito Diaz. : The manner of the execution of the Wheeler survey was almost as vicious as its origin, It appears that the War Department, after having tacitly consented to the Stratton survey 8 for nearly five years, and having waived the legal right of objecting thereto, conceived the idea of making an independent and ex parfe survey. And so an order was issued therefor. No law can be found authorizing such an order, nor can any law be cited authorizing the subsequent approval of the survey, in August, 1872, by the Commissioner of the General Land Office. The proceedings appear to have been founded upon the forged title of Diaz, and to have been secretly conceived and executed wholly without authority of law. And we state the whole case when we say that the Wheeler survey, from Alpha to Omega, was conceived in error, consummated without authority of law, and against justice, and that the entire transaction is coram non judice and void. Vide . Mackay et al. vs. Dillon, 4 How. {U. S.), 421, and authorities cited »/ supra. Congress is the sole and exclusive source of power respecting the disposition of the territory acquired from Mexico by the treaty of Guadalupe Hidalgo, and it has fully provided therefor in the Acts of March 3d, 1851, and July rst, 1864, and the military powers of the Government cannot interfere therewith. We therefore claim— First—That the Stratton survey was made, with the consent of the military department, to follow the dividing line between the reservation 9 and the pueblo lands of the city, as called for in the President's proclamation of December, 1851 and the Totten diagram accompanying the same. Secondly—That such survey was made under the authority and in pursuance of the only Acts of Congress on the subject. /hirdly—That the military authorities waived their right of objecting thereto, and tacitly con- sented to the correctness of the same. Fourthly—That the purchasers from the city of the small strip in controversy have paid their money therefor, and have paid the taxes thereon in good faith, relying upon the legality of such survey. £ofthly—That such purchasers are 20f land grab- bers or land jumpers, but have bought and paid full value for the title of the city, believing that the reservation would be made to confor to the modified proclamation of the President, and that the Stratton survey in conformity therewith would be sustained. Stxthly—That the United States and the milita. ry authorities thereof, having consented to the cor- rectness of the Stratton survey, and having failed to appeal from or object thereto, are now estopped from questioning the validity of the same. Sevent/ly—That in justice and equity the Strat- ton survey gives the reservation all the land it can 10 possibly use for military purposes, and its area need not be illegally or wrongfully enlarged. On the other hand, the Wheeler survey should be rejected for the following reasons : [First —It was made without authority of law. Secondly —1f it is base 1 on the first order of the President, then it is erroneous, because his second proclamation changed the lines, and located them as they are now delineated by the Stratton survey. Thirdly—1If it was made to conform to the calls of the Benito Diaz deed, then it is founded on fraud and forgery and should not be sustained. Fourthly—It is apparent that sve Nroeius ame 2 was was executed in a secret and ex parte manner, and is wholly without merit, either in law or equity, and should be rejected. Respectfully, W. C. BURNETT, City and County Attorney of the City and County of San Francisco. Euc. B. DRAKE, Att’y. for 79 Claimants of Pueblo Lands under purchase from the City of San Francisco. Be I Dah ama, bkbblk "END OF TITLE :