MICROFILMED 1986
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AUTHOR: Burnett, Wellingtsn C.
TITLE: Brie€ on behalf of --.
PLACE: L np.
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DATE: C I¥71 VOLUME 3:2
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~ CALL ssi MASTER °°
NO. V3 NEG. NO. 02.06
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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
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MICROCOPY RESOLUTION TEST CHART
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STANDARD REFERENCE MATERIAL 1010a
(ANSI and ISO TEST CHART No. 2)
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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
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