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 ¢¢-0208 AUTHOR: Gra.lpin, Philip Gleason, 1330 TITLE : Remarks. PLACE : C h.p- DATE: 18782 1 E VOLUME 3:4 Fra NO. v:¥ NEG. NO. 03-08 —rw F869 S3P18 v. 3:4 Galpin, Philip Gleason, 1830- Remarks, in opposition to a change of the survey of the pueblo of San Francisco, by Philip G. Galpin, attorney for certain grantees from State, [o.p, , 18782] Tp. 25cm. [Pamphlets on San Francisco. wv, 3, no, 4] Cover title. Dated: San Francisco, Jan. 7, 1878. At head of title: Before the Commissioner of the General Land Office. l. Land titles - San Francisco. 2. San Francisco - Lands, 3. Pueblo lands - San Francisco, 4. Stratton Survey, San Francisco, I. U.S. General Land Office, (Series) { CU-B 68 FILMED AND PROCESSED BY LIBRARY PHOTOGRAPHIC SERVICE UNIVERSITY OF CALIFORNIA BERKELEY CA 94720 JOB NO. 8/6 11014 0 DATE 72 8 6 REDUCTION RATIO © DOCUMENT "SOURCE THE BANCROFT LIBRARY INCHES 2] I 10 le fiz = gs [132 = 2 Iz Ce IR = lle 25 lie mie MICROCOPY RESOLUTION TEST CHART NATIONAL BUREAU OF STANDARDS STANDARD REFERENCE MATERIAL 1010a (ANSI and ISO TEST CHART No. 2) PMS ER | ; 12] [ 3 4 5 6 7 8 9 10] nT ahd bbn ebb Before the Commissioner of the General Land Office. IN THE MATTER OF THE SURVEY OF THE PUEBLO LANDS OF THE CITY OF SAN FRANCISCO. REMARKS IN OPPOSITION TO A RE-SURVEY The Pueblo of San Francisco, is located on a peninsula washed, on the western, northern and eastern sides by the navigable waters of the ocean, or of the Bay of San Fran- cisco. Between these waters and the line of ordinary high tide, stretches a strip of land belonging to the state by virtue of her sovereignty. Pollard, Lessee v=. Hagan 3 How 212. Teschmaker vs. Thompson 18 Cal. 22. From the line of ordinary high tide to the centre of the peninsula, the land is confirmed to the pueblo by a decree of the United States Circuit Court, in the case of the City of San Francisco vs. the United States, entered May 18, 1865. The same land is relinquished by the United States, to the City of San Francisco by Act of Congress approved March 8, 1866. 2 Thus it is apparent, that along the western, northern and eastern lines of the city, the United States has no lands to be segregated from those of the city by any boundary line she may there run. : The state, by virtue of her sovereignty, owns up to high water mark. The city, by virtue of the decree to which the United States is a party, and the Act of March 8, 1866, owns down to high water mark. The proposition, approved by Mr. Sherman Day, (re- ferred to on page 6 of the brief filed herein by Mr. Henry Beard), and in a more cautious manner, pressed by Mur. Dwinelle, at page 2 of his brief, appears to be, to change the survey so as to include some of the lands below high water mark, or as Mr. Dwinelle phrases it, ‘‘to take in cer- tain 1nds excluded from this survey by reason of their QUALITY.” This contemplated departure from the line of high water in July 1846, is open to two objections. 1st. It is in direct disobedience of the decree which orders the surveyor to follow the line of ordinary high tide. ond. Such disobedience would be futile to enlarge the boundaries of the pueblo, for the land below high water mark, as we have seen, would not be taken from the terri- tory of the United States, but of the State. She and her grantees are not parties to this record, and the survayor is powerless to shave anything off from the domain of the State, or add it to that of the City. So far as the boundary lines of the City upon the west, north and east are concerned, it matters not where the surveyor may run his lines. The State, untrammelled by his decision will hold her domain to the high water line established and agreed upon by herself and the city, and the city will sweep down on the other side to meet the State. But while it is true that the lines here run cannot bind as a boundary line for want of jurisdiction over the State, it is also {rue that the surveyor must run the lines of or- ginary high water on the west, north and east, because he must compute this area to know where to run across the peninsula that east and west line which shall form the 3 southern boundary of the pueblo at such a point as to include four square leagues above ordinary high water mark. The western, northern and eartern lines then, when run are of no avail to limit at those points the rights of the State, or to enlarge at those points the domain of the city. It is proper to make those lines sedulously follow the line of ordinary high water in July 1846, as agreed upon between the State and the City, because if they be run too low—if they be made to include tide lands now as between the City and the State belonging to the State—tv so run the lines will not take away the title of the State (not a party to this proceeding and give it to the city), but a greater area being included at the northern and eastern part of the peninsula, the four square leagues will not reach so far south; consequently the east and west line which forms the southern boundary will be shifted north, and property holders, deriving title from the city along her southern border, will be left uncovered. In other words, while the surveyor cannot widen the "pueblo lands from east to west, because he cannot take from the State to give to the City, if he attempts to do so, he of necessity brings the area of his four leagues fur- ther north, and thereby curtails the domain of the city upon her southern border. The interests of the City and the State alike require that the snrveyor follow theline of ordinary high water as agreed upon between the city and the State. [For further argu- ment on this head, see page 11 of Mr. Beard’s brief. It cannot be claimed that the State would be bound by any survey run below high water mark in any event, for such a survey is not authorized by the decree. II. The second point made by the Counsel for the City is divisible into two heads: 4 1st. The surveyor was directed “in the English language to measure four square leagues, and English leagues were meant.” "The right confirmed to the pueblo was an inchoate right acquired prior to the conquest and protected by the Treaty of Guadalupe Hidalgo. This inchoate right of the pueblo was one given by Mexican law for a certain quantity of land by Spanish measure; this inchoate right accrued be- fore the conquest, and was clearly a right to Spanish leagues. The land confirmed is no more in quantity than the original claim ; and surely the original claim under Spanish law was not for English leagues. It would seem to result that as the original claim (which is confirmed), was made for Spanish leagues, the confirmed claim is also for Spantsh leagues. and that the conquest and the use by the conquerors of the English language did not operate to add about Spanish grants. 9nd. The second head of this point consists chiefly of an elaborate citation of authorities to show that the decree ‘one-twelfth” to the size of of confirmation was wrong. That the decree should not have ««ambraced so much of the extreme upper portion of the peninsula above ordinary high water mark, as the same existed at the date of the conquest, to wit: the seventh day of July, A. D. 1846, on which the City of San Francisco is situated, as will con- tain an area of four square leagues, bounded on the north and east by the Bay of San Francisco, on the west by the Pacific Ocean, aud on the south by a due east and west line, drawn so as to include the area aforesaid, subject to certain deductions, all of which excepted parcels of land are included within the area of four square leagues above mentioned, but are excluded from confirmation to the city,” but the decree should have read «and you are also to exclude from measurement all land not available for cultivation, pasturage or forestage,” and the Court having failed to incorporate these further exceptions into the de- cree, Counsel proposes that the surveyor sit as a revisory tribunal, to add these exceptions now. 5 te might be the duties of a Spanish Court in di- Ze 103 ihe form of decree; whatever might be the duty : iss a : Bae the application to correct the decree essed to the wrong forum. Furthermo : ¢ : . re, th Jin of the Surveyor of the United States in ing bis veys under decrees of the Courts of the United iy 2 st by the Acts of Congress and the decisions of 2 se Ieme Oot, and the instructions of the Genera] ce, and these will probably be found mu ch Miss o Pleat. than the modes pointed out by a aw to the swarthy Hidalgos who stretched : over the ground their raw-hide ropes in the good old days when S; on law was dominant. Hae Entertaining as are these old-time regulations, they are Sipasee) by the new dispensation, whose sole maxim for e surveyor is, ‘‘your boundaries must conform t decree.” Dif ng the high office and duties of his Spanish pro- otpye, the modern American surveyor is to make no esti- - mate of the vegetable producing capacity of the soil, he is ih oy calculate the chances for wild oats, nor investigate : o Shan a ie thickets of scrub oaks. He is oblivious o ‘“‘cultivable lands, pasturage and for D fy Tamas g orestage” for the law power to act as a court in determini a to Ipthuss and what to exclude. The Airs is his art and his su ies i i rvey must follow the bonndaries it pre- Aside from the question i of power in the surve oo the decree by excluding from the four a y ich he does not consider fit for cnltivation, pasturage or test 1 is by no means clear that the changed condi of life since the conquest, does not . warrant a ch : ae law to meet modern requiremeuts; and the Cirouit Ja ge may have considered that a city lot valuable for resi- eae or business ought to be protected by the claim of the city and the owner's title made secure through her even if the soil was so sandy that it would neither Produce a cabbage, pasture a cow, or raise a hoop pole i EA : bop BL es el Ree Se gt Saiindl icy Dh 2 ot in Heer wy - SE 6 If the court held to Yoh an opinion, and so thinking, included within the pueblo land the city lots beyond the sand belt, is it not stretching somewhat the duties of the surveyor to permit him to revise the decree, by excepting from the survey such lands as he may think suitable neither for cultivation, pasturage or tree production. IL, The only question left is, whether the present survey is on the line of ordinary high water in July 1846. This is a question of fact which cannot be resolved by personal inspection now. In 1846 the tide crossed Montgomery street near Jack- son; to-day the city frout lies several blocks to the east- ward. The debris from the mines pouring down the river, the filth from a large city coming through the sewers, to- gether with the wash from thousands of acres of lands now cultivated, have united to shoal the waters of the bay in some places ten to fifteen feet, and to build up a widening strip of land along the shores. Miles of streets have been cut through sand hills, and acres of sand throwh into the bay. Blocks beyond blocks have been filled in and built over. To-day, to rnn the line of ordinary high tide, as it was in July 1846, would be impossible, without resort to old maps and parol proof. : Then, we have a contest of interested parties, struggling to push the line in here, and out there, to suit their own private ends. Is such evidence more reliable than the official maps of the city made many years ago, before so many changes had taken place, and when there was no object to falsify the record—maps accepted by the city and the state, the only co-terminous proprietors, as being correct. Again this line has long since been settled as between the city and the state. Each party has sold up to this line. Great rights of property have grown up under and beside it. 7 Why should the United States, having no interest what- ever along this accepted line, undertake now to establish a new demarcation. The community requires no change. Who is asking to have the survey shifted ? . Mr. Dwinelle says it is the city; that the opposition of the State officials is not genuine; that it comes on motion of the SPECULATORS, and the s ecu- lators have bought the spurious title of the eye Why the purchaser from the State is more a spcculator than the purchaser from the city, or why one title is more spurious than the other, might be interesting questions. Abuse of one’s opponeut is not argument, and when em- ployed by counsel of such ability, raises a suspicion that he feels the weakness of his cause. It is usually the case that those who undertake to over- throw long settled and accepted facts, are those who hope to profit by the change. The city can hope to profit nothing. The lots aronnd the Park which her citizens would lose are probably worth as much; being nearer the business centre as an equal arca next the border of San Mateo County. May there not be other speculators along the southern boundary who hope to win, when lines are shifted, lands which now are quite beyond theio reach? And may not these men, although unknown to counsel for the city, be they who deftly use the city’s name to rake their chestnuts from the fire? PHILIP G. GALPIN, Of Counsel for Grantees from the State. San Francisco, Jan. 7, 1878. END ~ OFTITLE