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NUMBER 6-011!

 
 

AUTHOR: Taylor, Edward Robeson,
1338-1912

TITLE: Memorial to.

PLACE: [ San Francisco ?

DATE: [ 12907] VOLUME 3:(3
on ;
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NO. 3:13 NEG. NO.02 /!

 
 

 

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TO —

F8€9 Taylor, Edward Robeson, 1838-1923,

3

S3P18 Memorial to the Congress of the United States against the con-

v. 3:13 firmation by Congress of the Stratton Survey of the pueblo of San

X Francisco. (San Francisco» 1880?)

11 p. 26cm, [Pamphlets on San Francisco. wv, 3, no. 13]

Cover title,

Submitted by Edward R, Taylor and Jarboe & Harrison of

Counsel for Lot Owners and 5 San Francisco banks.

war,
3

_ Contents, - Memorial, - Brief on behalf of lot owners in
of appeal taken from the decision of the Commissioner of the
General Land Office, approving the Stratton Survey. In the
Department of the Interior, - Opinion in case of Tri

C.C, Jug vs. F.S. Spring. Circuit Court, District of California,
78. = Report of Senate Committee on Deed of State

July 29,

See next card,

support

PP vs. Spring,

 
 

FILMED AND PROCESSED BY
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UNIVERSITY OF CALIFORNIA
BERKELEY, CA 94720

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DATE 9 8 6

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MEMORIAL

TO THE

CONGRESS OF THE UNITED STATES

Against the Confirmation by Congress of
the Stratton Survey of the Pueblo

of San Francisco.

 
 

MEMORIAL

In Opposition to Passage of Senate and House Bills
Confirming the Stratton Survey of the Pueblo
of San Francisco.

To THE CoNGRESS OF THE UNITED STATES:

Your memorialists, who have been contest-
ing before the Secretary of the Interior, on behalf

of Lot Owners and Savings Banks, the approval
of the Stratton Survey of the Pueblo of San
Francisco, hereby protest against the passage by
Congress of any bill confirming that survey.
That this survey is wrong and vicious in whole
and in all its parts; that it was made in certain
special interests and without any reference to the
decree; and that a final confirmation of it will
result in unsettling titles to millions of property
which have been always held to be good, there
can be no question. That Congress will consent
to invade the jurisdiction of the Interior Depart-
ment for the purpose of working this wrong, we
are loth to believe.

Independently of these considerations, we
respectfully submit that Congress has no consti-

 
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tutional power to pass such a bill. It cannot
make a decree, nor can it modify one so as to
affect vested rights. The survey must conform
to the decree, and it does not lie with Congress
to say it does so conform, when the fact is patent
that it does not so conform. Furthermore, any
person excluded by the survey, could collat-
erally attack such a statute, and in his own
protection, show the falsity of it. The confirma-
tory Act, could, therefore, accomplish nothing.
The persons specially interested in the con-
firmation of the survey must know this well
enough, but they seem to hope by appealing to
Congress, to delay adverse action by the Interior
Department, and thus worry and harass their
opponents into submission.

The following communication, published in
the San Francisco Bulletin, of date January 24,
1880, and signed by the attorneys of the leading
Savings Banks of the city, shows in brief the
interests affected by the survey, as well as the
erroneousness of it:

Epiror BuLLETIN: As the Pueblo survey has
again entered the field of newspaper controversy,
and as there seems to be great misapprehension
as to the effect of a rejection of the survey made
by Stratton, it is perhaps an opportune moment
to state some facts of which the public and the
Board of Supervisors seem to be ignorant.

The most valuable interest affected by the sur-
vey consists of two large gores of land (involving
over one hundred hundred-vara lots) situated
south of Market street, between. Third and Ninth
streets, all of which was surveyed out of the Pueblo by

 

 

3

Stratton without the least color of right or low, and
every inch of which will be left without any recognized
title in the occupants, if the Secretary of the Interior
should affirm Commissioner Williamson's decision.
All of these lots, so surveyed out, are held under
town sales made by this city. The market price
of the lots was paid by the various purchasers into
the City Treasury, and the Alcalde duly made
and delivered his deeds for the purpose of con-
veying title to the lots so sold. These titles have
stood incontestable, and were until Commissioner
Williamson's decision, held to be perfect. Should
the Stratton survey be rejected, the cloud which
now rests upon these titles will be removed, and
matters will be as they were before.

In addition to the above-mentioned gores, there
is a large quantity of land lying along and con-
tiguous to Mission Creek, all of which rightfully
belongs to the city and her beneficiaries, and the
whole of which is left out of the Pueblo limits by
the Stratton survey.

As the city stands as to all of these lands in
the position of a trustee, she is bound to protect
those holding under her, and should she not do
so, the grave question will arise as to whether or
not she cannot be held pecuniarily liable to all
those who shall suffer, if by any affirmative action
on her part she prevents an adjudication of the
question on its merits.

That Mr. Stratton acted without color of right
or law in surveying these lots out of the Pueblo,
is manifest from the fact, that all of them are
above the line of ordinary high tide, and for that
reason have always been considered to be within
the Pueblo limits. The surveyor was bound by
the decree to establish the eastern boundary of
the Pueblo along the line of ordinary high tide—
a line perfectly well known, for it had been es-
tablished by the officers of the coast survey, and
by the City Surveyor under the First Water Lot

 
STR TRS SAE Ti WY SO a Ee OT

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Bill of 1851. This has been the line recognized
since the early days; titles deraigned under the city
have always been passed down to it by every
conveyancer and lawyer; and the false line of
Stratton has never been recognized for a moment.
No one familiar with land titles here, and whose
opinion has any value, can be found bold enough
to say, that Stratton’s eastern line has ever been
recognized or acted upon as the true line. On the
contrary, the so-called Red-Line Map, of record
in the office of the City and County Surveyor, and
which shows, by the red line marked on it by di-
rection of the statute, the line of ordinary high
tide, has become and is a great landmark of prop-
erty, well known and recognized as such by every
conveyancer, lawyer and real estate dealer in the
city. That line was never attempted to be dis-
turbed at any time since the year 1851 until Mr.
Stratton, in 1868, set it aside, and the decree as
well which he was bound to obey.

But even after the survey was made, no one
paid any attention to it except those who were
interested in having a new deal in titles; for all
well-informed persons scouted the idea of such a
preposterous survey meeting with approval, and
the city herself protested against it, and acted in
accordance with that protest until within quite a
recent period. And, likewise, United States
Surveyor General Day sent it to Washington,
stamped with the seal of his condemnation.
Nor has the survey ever been approved by any
one authorized to approve it, until the decision
last year of Commissioner Williamson, the appeal
from which is now pending.

How titles can be settled by throwing down
all the old landmarks, we are at a loss to see.
One would suppose that the best way to protect
titles would be by preserving well established
boundaries. But we are told that the Tide Land
Commissioners have made deeds which, in case

 

 

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the survey is rejected, will be imperilled. This
may be true; but as those deeds were made with-
out warrant of law; as they conveyed pueblo
lands to which the State had no title, and as those
who procured such deeds procured them at
grossly inadequate prices, and took with full no-
tice of the rights of those holding under the
city, the equities attaching to such deeds are of
inappreciable consequence.

The eastern boundary of the Pueblo is the all-
important one, for here lie the great interests —
the valuable improvements. All other interests
affected by the survey sink into utter insignifi-
cance as compared with this; and yet we find our
city fathers not only consenting to, but eagerly par-
ticipating in, the destruction of this interest, and
even a portion of the new paper press clapping
its hands in approval. In other words, we find
the trustee, whose legal and moral duty it is to
protect his beneficiary, turning upon and despoil-
ing him.

It is idle, perhaps, to discuss this matter in the
newspapers, as the controversy will soon be de-
termined by the proper tribunal.

But as, at the present time, there seems to be
so much misapprehension in regard to the survey,
we thought it well to present a few facts for the
purpose of correcting this misapprehension. If
the Stratton Survey should be rejected titles will
be as they always have been, and no one will be
hurt except those who ought to be hurt, viz, the
gamblers in titles.

Epwarp R. TayLor,
JARBOE & HARRISON,
HENRY C. CAMPBELL,
GeorGE & LoucHBOROUGH,
E. B. & J. W. Masrick.
Topix & Toi.”

In order, however, that Congress may have a
full understanding of the matter, we have ap-

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pended to this memorial the brief filed with the
Secretary of the Interior, in opposition to the
survey, and beg that the same may be carefully
considered.

The recital in the bills that the Stratton Sur-
vey was ‘approved by Lauren Upson, United
States Surveyor-General for California,” is wholly
incorrect, and besides carries a wrong inference.
Gren. Upson simply approved the plat of the survey,
certifying simply that the survey had been cor-
rectly platted; while his successor, Gen. Day, who
heard the testimony on the survey, decided that it
was erroneous, and so reported in a written
opinion to the Interior Department. This testi-
mony and opinion are of record in the office of

the Secretary of the Interior. So that, instead

of the survey having been approved by the United
States Surveyor-General for this State, it was
condemned by him.

We respectfully and earnestly submit that
there is no ground for the interference of Con-
gress, more especially as the whole matter is now
pending before the Secretary of the Interior and
awaiting his action.

Respectfully submitted.
EDWARD R. TAYLOR,
JARBOE & HARRISON,
of Counsel for Lot Owners and for the

German Savings Bank,
Hibernia Savings Bank,

San Francisco Savings Bank,
Savings and Loan Society, and
Humboldt Savings Bank.

 

A A550

 

Brief on Behalf of Lot Owners in Support of
Appeal taken from the Decision of the Com-
missioner of the General Land Office, Approving
the Stratton Survey.

In the Department of the Interior.

 

In the Matter of the Survey of the 1
PUEBLO LANDS OF SAN FRANCISCO.

 

= eee tll SS eee mee

To Hon CARL ScHURZ, SECRETARY OF THE INTERIOR:

Inasmuch as an appeal was taken from the de-
cision of Commissioner Williamson by Jno. W.
Dwinelle, Esq., special counsel for the City and
County of San Francisco, which appeal is still
pending; and inasmuch as by the neglect of the
city and county no points and authorities, as we
are informed, have been filed in support of said
appeal, your memoralists, who represent lot
owners claiming title to lands in San Francisco
deraigned through the Pueblo, and whose lands
are excluded by the Stratton Survey, beg leave
on their own behalf to submit the following con-
siderations for the reversal of the decision of the
Commissioner confirming said surtey.
 

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DB Tease

 

8

It would be difficult to conceive of a more er-
roneous survey, or one more indefensible, than
the Stratton Survey of the Pueblo of San Fran-
cisco. It not only sets at defiance the decree of
the United States Circuit Court which it was the
Surveyor’s duty to follow, but it overturns what
all conveyancers had for many years acted upon
as the eastern boundary line of the Pueblo. In
fact, this line had been established by Mr. Eddy,
the City Surveyor, in 1851, acting under the first
water-lot bill, and a map, made by him in accord-
ance with his survey and known as the Red Line
Map from the fact of the boundary having been
delineated by a red line, has been hanging in the
County Surveyor’s office ever since it was platted,
and has been the guide of every lawyer and con-
veyancer in San Franc’sco. Under this guidance
titles emanating from the Pueblo and from the
city as its successor, have been passed down to
this line, and no one ever dreamed that any other
or different line could be or would be established
or recognized. In fact, this is one reason why so
much lethargy has been shown while the Stratton
Survey has been sleeping all these years in the
Commissioner’s office. Another reason is, that
the profession generally did not deem a patent at
all necessary, as while the pueblo contest was still
pending in the Federal Courts, Congress by two
Acts, one of July 1, 1864, and one of March 8,
1866, granted to the city in trust all the interest
of the United States in the Pueblo lands.
But after a long sleep the survey was, for some

 

9

reason or other, suddenly wakened to life, and for
the first time it became generally known that some
forty or more acres of land held under Alcalde
deeds and nearly every foot of which was cov-
ered with valuable improvements and had been
so covered for years, was outside of the Pueblo,
and the owners shorn of all title.

That the surveyor should have followed the
line of swamp lond segregation made by the County
Surveyor instead of the line of ordinary high
water mark established by the City Surveyor, as
he was directed by the decree to do, shows either
gross incompetency for his task, or utter reckless-
ness, or worse.

While this brief will be mainly confined to a
discussion of the fifth ground of protest, yet it
will be perhaps well, as we go along, to correct
some of the erroneous statements made by the
Commissioner in his opinion sustaining the sur-
vey—statements which seem to have been made
not from any evidence taken before the Surveyor-
General and transmitted with his opinion, but
from ex parte statements of counsel and from
records and documents sent on quite recently to
the Commissioner without any notice to the
other side, and without any opportunity on their

part for explanation or rebuttal.

It would be entirely safe to say, and we say it
with all due deference to the Commissioner, that
nearly every statement in his opinion in regard to
the so-called salt marshes is erroneous, and is
founded upon the most complete misapprehension

 
 

10

of the case before him. This necessarily resulted
from the manner in which the case was treated.
Had it been examined upon the evidence trans-
mitted by Surveyor-General Day, or had it been
opened for testimony on both sides, a correct con-
clusion would have been arrived at. As it 1s, it
could scarcely be more erroneous in both its state-
ments and conclusions.

The fifth ground of protest sets out the land
surveyed out of the Pueblo in a general way only;
but by looking at the Stratton Map and compar-
ing it with the Eddy Red Line Map, it will be seen
that the excluded land embraces two large gores.
and affects wholly and in part mote than one hun-
dred hundred-vara lots. Not one of these lots
but is held under deeds given by the Alcalde on
town sales, and until Mr. Stratton made the dis-
covery, all of them were deemed to be within the
Pueblo limits. The title to these lots has. until
the approval of the survey by the Commissioner,
stood unquestioned; but since that time, lenders
refuse to loan money on any of these lots, where,
before they were considered the choicest of
security. This is simply stated for the purpose
of showing one great interest affected by the
survey, and of the great caution and deliberation
which should be manifested before such an
interest is stricken down.

Besides these gores there is also a large quan-
tity of land excluded lying along old Mission
Creek and along Islais Creek, a great portion of
which is held under title derived from the city.

  

   

11

STATUS OF THE CITY AS TO THE LANDS.

As the protest is the city’s, and as the opinion
of the Commissioner treats largely of certain of
the city’s acts, it will be well to inquire as to the
status of the city in this contest.

Under the Spanish-Mexican law, the Pueblo
held the lands embraced within its limits in trust
for the inhabitants; and hence when the United
States made their grants of July 1, 1864, and of
March 8, 1866, to the city of San Francisco, they
were so made un trust. |

The grant made by the fifth section of the Act
of July 1, 1864, (Dwinelle’s Col. History, adden-
da, p. 257) was made for the uses and purposes
specified in the Van Ness Ordinance; and this
ordinance (Same History, addenda, p. 217) was a
grant to certain persons holding land within the
charter-line of 1851, and confirming such Alcalde
grants as are embraced within the gores surveyed
out by Stratton. :

The Act of March 8, 1866, (Same History, ad-
denda, p. 313) was a grant by the United States
to the city, of all the land embraced within the
decree of the Circuit Court, upon trust, for certain
beneficiaries named in the Act. And this decree,
upon which the Pueblo title rests, expressly pro-
vided that “This confirmation is in trust, for the
““ benefit of the lot-holders under grants from the
“ Pueblo, town or city of San Francisco, or other
‘“ competent authority, and as to any residue,
“in trust for the use and benefit of the inhabi-
 

12

“tants of the city.” (Same History, addenda, p.
250.)

So that, the city has no interest in the lands in
dispute, save that of a naked trustee. If a survey
and patent are necessary, it is her duty, as trustee,
to see that these are procured, to the end that
her cestuis que trust may have their title perfected;
but she cannot, as such trustee, set herself in
hostility to her beneficiaries. Her sole duty as to
these Pueblo lands is one of protection to her
beneficiaries; in the land itself she has no inter-
est whatever; nor can any of her acts in regard
to these lands affect in any way, by estoppel or
otherwise, any but herself. And yet, we are told,
in the Commissioner's opinion, of the city’s ac-
quiescence in the Stratton Survey, of her buying
certain lands from the State, of her having
brought suit in which her counsel make certain
admissions, of her having adopted the Tide Land
Survey which followed Stratton’s; and then we
are told that by the city’s having done these
things, she, and those claiming under her, are es-
topped from questioning the Stratton Survey !
That is, the proposition of law is, in effect, that
what a person does in his individual capacity will
estop him as a trustee; and that a trustee's act,
in the violation of his trust, will estop his cestut
que trust! And this estoppel is gravely invoked
as against the cestui que trust, and said to be
created by acts done or suffered by the trustee
many years after it had in pursuance of its trust
parted with all its interest to its cestui que trust!

 

13

The protest of the city, it is admitted, was on file
and in full force at the time of all these preten-
ded acts of the city—a protest made and filed for
her beneficiaries—but we are told that these pre-
tended acts (for they are incorrectly stated)
operated a waiver of the protest !

It is always to be presumed that the acts of a
trustee (and especially where the trustee isa mu-
nicipal corporation) are consonant with his duty;
and his various acts must be reconciled, if pos-
sible, where some are consonant, and others seem
to be inconsonant, with his obligations as trustee.
And so, in the present case, the protest of the
city on behalf of her grantees and beneficiaries
having been continued in full force and effect to
the present day in despite of the efforts of in-
terested parties to have it withdrawn, any act of
the city in apparent derogation of this protest,
must be very carefully scanned before we are au-
thorized to conclude that the city has done any-
thing in violation of her duty as trustee. But in
truth, the city has never done anything so far as
the record here shows, by way of acquiescing in
Stratton’s Survey, and nothing, which could con-
clude her on the most liberal interpretation of
the law of estoppel. But even if she had, her
beneficiaries could not be affected. She is bound
to protect, so far as she can, all of her cestuis que
trust, and any action of hers hostile to their rights
must fall hurtless.

The opinion of the Commissioner evidently
proceeds upon the theory that the city of San
 

 

14

Francisco is acting in this matter for herself
alone, and not for others; certainly, a stranger
to the facts could come to no other conclusion.

These considerations, alone, would be sufficient
to cause a reversal of the Commissioner's deci-
sion, for it is evident that they were the consid-
erations which controlled and prompted it.

But we propose to show, beyond the shadow
of a shade of doubt, that Stratton’s Survey, so
far as the eastern boundary of the Pueblo is con-
cerned, is not only erroneous, but that there was
not any excuse for the error.

WHERE, THEN, WAS THE LINE OF HIGH-WATER MARK
OF THE BAY oF SAN FRANCISCO ON THE TTH DAY OF
Jury, 1846, WHICH, ACCORDING TO THE DECREE,
MARKED THE KASTERN BOUNDARY OF THE PUEBLO ?

This is the inquiry, and to answer it we resort
to the uncontradicted evidence on this head trans-
mitted to the Commissioner by Surveyor-General
Day with his opinion.

The gentlemen who testify are Mr. Dwinelle,
an old Californian, whose professional intimacy
with Pueblo matters is well known; Henry F.
Teschemacher, Mayor of the city from 1860 to
1863, inclusive; Alfred Robinson, at present re-
siding in this city; Charles Brown; William P.
Humphreys, at present and for many years past
County Surveyor of this city and county; and
Augustus F. Rodgers, connected with the Coast
Survey, and at present residing in this city.

Mr. Teschemacher came to the State in 1842;

15

Mr. Dwinelle in 1849; Mr. Robinson in 1829;
Mr. Brown in 1829; Mr. Humphreys in 1849;
and Mr. Rodgers in 1851. Hach testifies of his
own knowledge, the testimony of each is positive
and clear, and it stands uncontradicted.

This testimony shows, beyond any room for
hesitancy or doubt, that the two large gores, of
which we have spoken, as also a large quantity
of land around Mission and Islais Creeks, were
not washed by the daily tides, and a great portion
of it not even by the spring or monthly tides.
And that the line of ordinary high-water mark is
determined by the flow of the daily and not by
that of the monthly tides is laid down in Zesche-
macher v. Thompson, 18 Cal. 21, and is settled law.
Indeed, much of this land, called ‘tide-flowed,”
in the Commissioner's opinion, was a fresh water
marsh, as was testified by Mr. Teschemacher, Mr.
Robinson and Mr. Humphreys-—and Eddy's Red
Line Map, hereto attached, is but a confirmation
of the testimony of these eminent witnesses.

We do not deem it necessary to quote from the
testimony as it is on file in the Department at
Washington, «nd can speak for itself. An examn-
ination of it will show that Mr. Stratton did not
follow the decree in his survey, and that he left
out of the Pueblo boundaries a large quantity of
land which was ‘“ above ordinary high-water mark
‘““ ag the same existed at the date of the conquest
‘“ of the country, viz.: July 7, 1¥46.” And of
that which was so left out are the above-men-
tioned two gores, nearly every foot of which the

 

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city sold thirty years ago, and to which there is no
other title for those in possession but Alcalde
deeds, which were made in pursuance of these
sales. A few of the lots are held under Alcalde
Grants proper, but the most of them are held as
stated.

In this connection we beg to call particular
attention to the opinion of Surveyor-General
Day accompanying the evidence taken before him,
in which, by way of corroboration, he speaks of
his own personal knowledge of these so-called salt
marshes in 1851-52.

Furthermore, there is an authoritative decision
of the United States Circuit Court for the District
of California, which is fatal to the Stratton Sur-
vey. This case is Tripp v. Spring, and is reported
in 5 Sawyer, at page 209. It was decided July,
1878, and is directly in point. The Commissioner,
in his opinion, says that Mr. Justice Field in
this case intimates that the Stratton line in its
tortuosities and meanderings “makes a very sin-
‘“ gular boundary.” The Commissioner could
hardly have given the opinion a careful examina-
tion, or he would not have used the language in
regard to it which he does. The Court does not
intimate anything as to singularity of boundary;
but on the contrary it holds decisively, and the
case turned wholly upon it, that the decree could
only be followed by surveying across the mouths of
the little creeks and inlets emptying into the Bay of
San Francisco, and not, as Mr. Stratton did, up
and along the line of swamp land segregation.

 

17

The case is decisive as to how the decree is to be
followed in this respect, and we respectfully sub-
mit that the Department should be controlled
by it, and not set it at defiance. For confirmation
of what we have said about this opinion and de-
cision, we have attached a copy of it to this brief
as an appendix. :

If Mr. Stratton had simply followed up the
shores of the little inlets, still most of the two
gores would have been saved; but instead of do-
ing this, he excluded the whole simply because in
the early days it was marshy in places, and be-
cause a County Surveyor had segregated it as
swamp and overflowed land.

And this naturally brings us to the segregation
said to have been made in 1850, and upon which
Mr. Stratton relies for his high-water mark. This
segregation, the Commissioner thinks, 1s more
controlling as to where the high-water mark was,
than the testimony of competent eye witnesses.
There is nothing in the Commissioner's opinion
which shows such utter misapprehension of the
subject as that which is said about this segrega-
tion. For the very fact that this land was segre-
gated as swamp and overflowed or salt marsh, shows
conclusively that it could not have been tide land:
that is, was not covered and uncovered by the
daily flow and ebb of the tides. Had it been
washed by the daily tides, it would have belonged
to the State by virtue of her sovereignty, and not
by virtue of the Arkansas grant of 1850, or any
other grant. The fact, therefore, that the County

 
18

Surveyor treated this land as swamp, leaves the
Stratton Survey without a piece of a leg to stand
on. ; :

The Commissioner says: *‘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 or grant of Con-
“ gress.” This is true, but if they were below
ordinary high-water mark, then they could not
have been land known as salt marsh. The very
fact, if it be a fact, that the lands were salt marsh,
proves conclusively that they could not have been
tide lands—that is, lands covered and uncovered
by the daily wash of the tides. Ali this is evi-
dent enough; but the distinction between Tide,
Swamp and Overflowed, and Salt Marsh Lands, is
so clearly laid down in People v. Morrill, 26 Cal.
353, that we beg to quote at length:

‘l

“1. The public lands of the State are distin-
guishable into two general classes: First, those
which it holds by virtue of grants from the United
States; second, those which it owns by reason of
its sovereignty. The first class includes the grant
of five hundred thousand acres, September 4,
1841; the grant of the sixteenth and thirty-sixth
sections in each township for the use of schools
therein; of seventy-two sections for the use of a
seminary of learning, and of ten sections for
public buildings, March 3, 1853; the grant of one

hundred and fifty thousand acres for an agricul-

tural college, July 2, 1862, and the grant of all
the swamp and overflowed lands in the State be-
longing to the Government, September 28, 1850.
The second class of lands, belonging to the State
by reason of its sovereignty, includes the shore

 

19

of the sca and of its bays and inlets, in the com-
mon law definition of the word “shore,” that 1s,
the lands usually overflowed by the neap or ordi-
nary tides. (Pollard’s Lessee v. Hagan, 4 How.
912; Qoodtitle v. Kibbe, 9 How. 471; 13 How. 25;
Teschemacher v. Thompson, 18 Cal. 21; Act of
1850 adopting the Common Law, Wood's Digest,
8. :
the Act of 1855 (page 189) thereisa direct
expression of legislative opinion as to the char-
acter of the land owned by the State by virtue
of her sovereignty. The Act is entitled “An Act
to provide for the sale of the swamp and over-
flowed lands belonging to this State,” but 1t 1s
provided in the eighteenth section that the Act
‘ shall not apply to or in any manner affect any
Jands belonging to this State by virtue of its
sovereignty, below the line of ordinary high tide
water, or the sea shoreand the shores of the har-
bors on the coast of this State.” In so far as the
lands held by grant are “swamp or subject to
such periodical overflows as to injure or destroy
the crops,” (see circular of General Land Office,
March 8, 1864, Wood's Digest, p. 746), the State
became the owner of them by reason of the Act
of September 28, 1850, commonly known as the
“Arkansas Act.”
From this examination it appears that the lands
included in the defendant's patent are lands that
became the property of the State by reason of its
reignty.
oy of the lands belonging to the State
by reason of her sovereignty were offered for sale
by the Act of 1889, as we have already seen.
This Act was repealed by the Act of April 21,
1858. (Acts 1858, p. 198.) That Act, by its
title, provides for the sale of “ swamp and over-
flowed lands,” but the first section not only de-
scribes the lands offered for sale as * swampy and
overflowed,’ but indicates their character still

 
20

more precisely by referring to them as lands com-
prehended in the grant by Congress of September
28, 1850. By section thirteen all swamp and
overflowed lands, situated in certain localities

named, are permanently excepted out of the op-
eration of the Act, and i

1 80 far as the Stata's

Swamp and overflowed land may be made up of
“salt marsh,” a right to pre-empt is reserved for
SIX months to the owners of the adjoining arable
land. The result is that nothing was offered for
sale by the Act of 1858, except the lands falling
within the description of the Arkansas grant of
1850: and as the land included in the defendant's
patent is not within that description, it follows
that the groundwork of defendant’s purchase must
be sought for and found, if a
legislation.

It is urged, however, on the part of the re-
spondent, that it appears from the proviso to the
first section of the Act of 1858, that the State,
by that Act, offered for sale its lands situate be-
low ordinary high tide. The proviso is as fol-
lows: “Provided, that if upon the survey of such
lands any portion thereof shall be found to be
lands belonging to the State by right of her sov-
ereignty, the moneys arising therefrom shall be
paid into the Treasury of the State as other State
revenues.” This proviso is to be read in the light
of the subject matter. It is wel] known that that
portion of the swamp lands of the State known as
“salt marsh” are threaded by channels of greater
or less width, within the ebh and flow of the tide,
which channels are of little or no use either in
the way of fishing or navigation. They are but
extensions of the “mud flats,” and like them be-
long to the State by right of its sovereignty.
While the principal purpose of the Act was to
sell the swamp and overflowed lands, which the
State held by its grant, still it was considered that

that purpose could be best subserved by allowing

 

t all, in subsequent -

   

21

-—

purchases of salt marsh to include such channels,
when reasonably necessary, within their survey.
To that extent and under such or kindr:d circumn-
stances it is true that the lands belonging to be
State by reason of her sovereignty were i
for sale by the Act of 1858. But none of t on
circumstances connect themselves with the lan Is
included in defendant's patent. The a if
any portion thereof shall be found, ofc. 3 ow
very clearly that the Legislature cons dere : 1e
proviso as but a relaxation of the general rule in
favor of a case which it regarded as exceptional.

3. The Act of April, 1859, is amendatory of
the Act of 1858, but we do not consider that
enlarges the scope of the offer to sell contained
in that Act. It applies to “persons who wish to
purchase under this Act,” (the Act of 1858) to
land that is “swamp or swampy for the greater
part,” or ‘that is subject to inundation 2b the
planting, growing or harvesting season, 0 wl io
endanger or destroy the crops, taking the Average
season for a reasonable number of years prio 0
the year of 1850 as a rule of determination. y
the Legislature had intended to offer all the lan ls
for sale owned by the State by virtue of its sov-
ereignty, it is not to be supposed that a Sasstip:
tion so labored and so inapposite would have onl
adopted. The lands of the defendant's patent ae
neither swamp or swampy, nor is there uny sensi-
ble connection between them and the sam;
named, nor between them and ‘crops; aad th
“average” stated might very well been spare 10
view of the fact that a state of * inundation 2
curring with the regularity of the tides is the
normal condition of those lands.

But reference is also made to the second pro-
viso of the fourth section of the Act of 1859, and
it is claimed that it appears from that proviso
that the Legislature intended to offer for sale i
discriminately all the lands which the State ownec

  
22

by reason of its sovereignty. The proviso is as
follows: Provided, further, that the said c'aim
shall not exceed six hundred and forty acres, or
measure more than one-half mile front, by legal
subdivision, on any bay, lake or navigable stream.”

The lands included in the patent have in fact no

relation to any bay or lake or navigable stream,
and, therefore, if they should be considered as
without the Act, the just operation of the proviso
would be in no manner interfered with. The
swamp and overflowed lands offered for sale and

claimed by grant, border to a great extent on

bays, lakes or navigable streams, as a matter of
fact. They extend down to the line of ordinary
high water, and the lands claimed by the State
by right of sovereignty extend up to the same
line, and the only purpose of the proviso was to
limit the number of acres which the citizen could
buy landward from that line and to limit also the
extent of the frontage upon it. A conveyance by
the State, bounding upon the sea, or upon a bay,
or a navigable stream, would extend to high-
water mark. The proviso is then entirely recon-
c.lable with the views which we entertain as to
the real purpose of the Act.”

See, also, Fay v. Rondell, 32 Cal. 354.

The lands excluded by the Stratton Survey, on
the authority of the Potter segregation, were,
therefore, according to the testimony of Tesche-
macher and others, partly swamp and overflowed
and partly salt marsh; and such lands, as said in

“the opinion quoted, *‘ extend down to the line of

“ordinary high water;” while the tide-lands, that
is, those held by the State by virtue of her sov-
ereignty, ‘extend up fo the same line.”

And it is also clear, that it is only that small

93

portion of the salt marsh made up of the tide:
flowed inlets running up from the sea which
could be denominated Tide Land, But that even
these channels could not, simply because they
were tide-flowed, be excluded from a Mexican

grant is well settled.
Tripp v. Spring, supra. ff
United States v. Pacheco, 2 Wall. 587.
Ward v. Mulford, 32 Cal. 36%, 370. Nx

Y

Thus we see that the only evidence offered-to
sustain the survey gives it its death wound.

Having thus shown that the survey did not
follow the decree and is grossly erroneous, we
shall now show quite as conclusively that there
was no excuse for the error; that even the plea
of ignorance can avail the Surveyor nothing.

In the Commissioner's opinion it is stated that
when the City and County Surveyor was applied
to for information by Mr. Stratton, he furnished
him with the field notes of a segregation, but
stated that he “has made no survey of the water
“line in front of the city, as shown by the water-lot

“ Act and map of 1851."

The Cominissioner relies upon this segregation
as having been an early survey; but the truth is
there is not a syllable or line in the record which
shows when this segregation was made. Potter
says in his letter to Stratton, ‘ With this you
“ will find the copy of field notes and records of
“ the line of segregation as returned to the Sur-
“ veyor-Greneral of California;’ but he furnishes

 

fo ——————,

A

«3
24

no date as to when the segregation was made.
And endorsed on the field notes, referred to in
his letter, are the words:

“The within is the description of the line of
"segregation of salt marsh and tide lands in San
“ Francisco county, according to the surveys re-
“turned to the Surveyor-General ;7 but no date
is given

There is, we repeat, no testimony showing or
tending to show that the segregation was the
result of a survey made at an “early day.”

Fortunately, we can supply the time with suffi-
cient certainty from the statutes of the State;
and it will be found that the survey was not made
at an early, but at a late day, all of which Mr.
Stratton knew, or was bound to know.

The State passed no Act for the sale of swamp
and overflowed land until the year 1855, (Statutes
of California, 1855, p. 189,) and the County Sur-
veyors had no duties to perform in and about
such lands until that time.

In 1861 the State passed an Act for the “ Rec-
“lamation and segregation of swamp and over-
“flowed and salt marsh and tide lands donated
“to the State of California by Act of Congress,”
(Statutes 1861, p. 355.) and section 19 of said
Act provides as follows:

“The County Surveyors of the several counties
“of this State shall, immediately after the organ-
“ ization of the Board of Commissioners, proceed
“ to segregate the swamp and overflowed lands within
“ their respective counties from the high lands in

 

25

“ said counties, and make complete maps of all

-—

*“ the swamp and overflowed lands within their

-
-.

respective counties, in legal subdivisions of

-~
-

sections and parts of sections, together with a
tabular statement of all such lands as have
“ been sold by the State, and under what Act the
same were sold, of all lands claimed and by
whom claimed, and as nearly as possible by
what title the same are held, and file the said
“ tabular statement in the County Recorder’s
office of their respective counties; also transmit
duplicates of said maps to the Surveyor-General
of the State.”

This is the first segregation ever provided for
by the State, and as the Act was passed in May,
1861, it could not have been earlier than the
middle of this year when the segregation was
effected. Thus we see by confirmation strong as
proof ol holy writ, that the survey relied on was

-~
-

-—
-~

-
~

-—
-

-
-~

-—
—

-
-~

”» ‘
not a survey made at an “early day,” but made

at a late day, and thus hardly worth setting up
against the testimony of “six respectable wit-
nesses’ who saw the condition of things long
before any “natural and artificial changes had
been made.” Indeed, so many changes had been
made by the year 1861, that it is a puzzle how
any such line of segregation as that returned to
the Surveyor-General could have been arrived at
in the field. The truth is, that it never was sur-
veyed in the field—at least in 1861—but must
have been taken from some of the early maps,
which show quite clearly the extent and charac-

_ pe
Lent

 
26

ter of the land, and the little inlets that for a
short distance penetrated into it. If made at all
it was made for a purpose

 

and that purpose was
to cover this land with swamp land locations, as

1s attested by the fact of many of such locations
having passed to certificates of purchase.

Besides all this, that it was a manufacture is
clearly evident from the fact that there is noth-
ing, as we are prepared to state from personal
examination, to be found in the records of the
County Surveyor showing that any such line of
segregation was ever run by him. And the rec-
ords further show that the earliest swamp land
survey ever made in the county of San Francisco
was made on August 25, 1863, and the latest on
February 2, 18567; and all of these were made at
the instance of private parties, for particular
pieces of land. Nor is there anything in the
Surveyor’s office to show that the County Sur-
veyor ever made in 1850, or at any other time,
such a survey as the Commissioner says Stratton
relied on.

The Eddy map of 1850, which was the official
map of the city, and was made by Eddy as the
city surveyor, shows plainly the topography of
these so-called marshes, and at the same time shows
the line of ordinary high water to be where he put it on
the Red Line Map, and where it has always been rec-
ognized to be.

It is also worth while to note that the segrega-
tion provided for in the Statute is that of swamp

 

27

and overflowed land, and therefore of land having an
entirely different character from tide land; and
the title of the Act clearly shows that the land
is that granted by the Arkansas Act of 1850, and
not land owned by the State by virtue of her
sovereignty.

It hence follows that this segregation could not
have been intended, as the Commissioner says it
was, “to show the line of ordinary high water at
othe time of the conquest, and to indicate the
4 tide-flowed lands.” Never was greater misap-
prehension. The only authority there could have.
been for such segregation, was that under the
Act of 1861, and this was for the ostensible pur-
pose of providing a better scheme than the one
then in force for the sale and reclamation of the
swamp lands. Nor could such a Sogregation, by
any possibility, show the line of high-water mark.
It could only show the line separating the marsh
from the dry land, and not the line separating
the tide from the marsh land. =

To show still further the misapprehension, 1t1s
only necessary to quote in full the law of April,
1850, to which the Commissioner alludes. It is
section thirteen of an Act prescribing the duties
of County Surveyors (Statute 1850, pp. 170-171),
and reads as follows:

Section 13.—Bach County Surveyor, 1mme-
diately after making any survey, except whe, 7
city or town lots, shall make out a copy of the g
notes and plat, and transmit the same to bse
Surveyor-General, indicating plainly upon the

cpr rer

 
28

plat at what point of any Zine, any river, or stream,
or county line is touched or crossed.”

At this time there was a City Surveyor, the
city and county not having been consolidated
into one government until the year 1896, and the
County Surveyor would hence have nothing to do
with surveying the boundary lines of the city;
but independently of this, it can hardly be seri-
ously claimed that the language quoted could be
so distorted as to mean what the Commissioner
says it means. He certainly could not have read
the section, or if he did, he could not have placed
it alongside of what Mr. Potter says was done.
The law says plainly that the Surveyor shall
designate on his plat the point at which any of
his lines are crossed by a river, stream or county line.
[t is almost laughable to be told that this means
that he should * designate the boundary lines of
** counties and cities, and designate their intersec-
** tion and distance from coast lines or streams,”
and that the eastern boundary line of the Pueblo
was to be determined in this way.

What Mr. Potter says was done was to © segre
gate” the swamp land--a segregation expressly
provided for in 1861. He particularly tells Mr.
Stratton that he had “made no survey of the
* water line in front of the city.”

Having thus shown that the survey relied on
by Mr. Stratton was not made at an early day,”
and was not made with any view to finding
high-water mark, we shall show that there was a

 

29 .

survey made at an early day of the identical line
which Mr. Stratton ostensibly was looking for,
but which survey he chose to ignore. But
stranger still, although he completely ignored it,
he says he followed it! The Stratton Survey 1s
a marvel of absurdity, but the conduct of the
surveyor is, if anything, even more absurd. As
we sid before, he was either incompetent, reck-
less, or worse.

He says that on account of the natural and
artificial changes he was compelled to rely en-
tirely upon the first official map of the city made
by Wm. M. Eddy, the first City and County Sur-
veyor, and which he made the basis of his survey.
To stow how he relied upon it, it is only necessa-
ry to state that Eddy in that map shows the linc
of ordidary high-water mark to be exactly where
we claim it to have been, and where it has been
recognized to be ever since the year 1851. More
than this, there has not been a map of the city,
and one cannot be produced having official sanc-
tion, which does not show it to be where it was
put in 1851—just ten years before the * early-
day’ survey relied on.

It was necessary in 1851 to find out where this
line was; for in that year the State granted to the

City of San Francisco for ninety-nine years Cet
tain lands bounded on one side by lines of certain
streets, and on the other by natural high-water
mark,” and provided that a * correct map of said
‘“ boundary line distinctly and properly delineated
“ by a red line,” should be deposited within thirty

ite

cr

reer ce
po ECS CRE

ph———————

 
30

days after the passage of the Act, in the offices of
the Secretary of State, of the Surveyor-General,
and of the Surveyor of the city of San Francisco.
( Dwinelle’s Col. History, addenda, p. 265.) This
was all done; the survey was made, the maps
platted and properly authenticated and red-lined,
and from 1851 up to the present time this red-
line map has been kept as a perpetual official
monument of what Mr. Stratton says he was so
eagerly in search of. The outside red line was
made by the Act the water front of the city,
while the inside red-line indicated the line of
ordinary high-water mark. Between the two
lines were the so-called Beach and Water lots
granted to the city for ninety-nine years. By
this map, as we said at the outset, all lawyers and
conveyancers have been governed ever’since the
decree of 1865 establishing the pueblo, as cor-
rectly showing the ordinary high-water mark
called for in the decree. And yet it will be
found on an examination of the Map made by
City and County Surveyor Humphreys, and now
on file with the papers in the case, that this Red
Line has been changed by Stratton along its entire
length! :

It is thus plain that there was no excuse for
Mr. Stratton’s falling into error as to the eastern
boundary of the Pueblo, and that he did not
make his survey, as charitably urged in his behalf
by the Commissioner, “according to the light of
the best evidence at command.” Not only, how-
ever, was there this map, but there was also the

 

31

Coast Survey Map, referred to in the testimony
of Mr. Aug. F. Rodgers, showing the identical
line which Mr. Stratton so yearned to find, but
which, by a vigorous closure of both eyes, he
failed to see.

We shall try to procure in time, authenticated
copies of both of these maps, to attach to this
brief; but should we fail in this, we shall send
them in a few days after the mailing of the brief.

But these maps were not the only resource at
hand for a correct determination of the line
sought; there were a number of persons in San
Francisco, who could have given Mr. Stratton
valuable information. It was perfectly easy and
practicable for him to procure the evidence taken
before Surveyor-General Day, and much other
evidence of the same kind; but he seems to have
made no effort in this direction, and to have cared
to find nothing else but the segregation of 1861.

"The “natural and artificial changes” he speaks
of, had nearly all taken place by that year, and
yet he takes a survey made in that year for the
purpose of determining the natural condition as
it existed fifteen years previously !

AS TO THE ALLEGED ACTS CONSTITUTING AN ES—
TOPPEL AGAINST THE CITY, we think we have already
said enough; but perhaps it will not be consider-
ed out of place to correct some of the Commis-
sioner’s erroneous impressions; and in this, we

shall be brief.

i

Cy

rep b Tl

*
pp——— TAT

 
32

Fivst— As to the Tide Laid Mup, and the order of

the Board of Supervisors adopting it.

The Tide Laud Commissioners were authorized

(Statutes of 1867-68, p. T17, Section 4) to take

possession of all the salt marsh and tide lands
belonging to the State, and to map the same; and
also to establish a water-front where their juris-
diction extended. As for their having taken
possession of or having surveyed the lands on the
cast side of the Pueblo excluded by Stratton,
they did no such thing. A great part of it not
only was not tide or salt marsh, but never had
been tide or salt marsh. On the contrary, it was
nearly all dry land, and a very large proportion
of it was covered with store-houses and resi-
dences. In fact, the two gores above spoken of,

were in 1868, and had Leen for years before that

time as thickly settled as any portion of San

Francisco. What they did do was to survey into

lots, blocks and streets for the purpose of public

sale, the tide lands in the lower part of the city,

out to twenty-four feet at low water, “in accord-
ance with the official map survey of the City of
San Francisco,” as required by law.

Now this official map survey of the city in-
cluded all the land on the easterly side of the
Pueblo excluded by Stratton; but in preparing
their map, the Commissioners not only included
this, but included a large quantity of other up-
land. This was not done to show that they as-
sumed jurisdiction over all laid shown on their
map, but simply to show the connection of their

 

33

survey with the official map of the city—and the
land claimed to be within their jurisdiction was
designated by being colored blue. All this is
evident from the title of the map, which reads
“Map of the Salt Marsh and Tide Lands, lying
under water, south of Second street, and situate in
the city and county of San Francisco,” and from
the ordinance of the Board of Supervisors, adopt-
ing this [lide Land Map. After declaring that
the streets laid out by the Commissioners shall
be open public streets, it is provided that the City
and County Surveyor “shall draw and compile,
“ delineate and place upon the map of the city
“ and county,” the streets and avenues delineated
upon the Tide Land Map; and the map is spoken
of as one of lands lying under water [Order No.
911 in Municipal Reports, 1871-72, p. 589.]
What the city did was but to tack on to their
official map the extension created by the Survey
of certain lands lying under water. This Tide
Land Survey had no more to do with-the segre-
gation line followed by Stratton than if it had
never been in existence, nor was any water-front
established with any reference to it. The water-
front line of 1851 was preserved by the Statute
under which the Commissioners acted, and they
could not disturb it in any particular, and this
water-front is directly east of a great portion of
the land excluded by Stratton. The water-front
was simply extended southerly by the Commis-
sioners, so as to include the lands placed within
their jurisdiction.

ERE EE

 
34

As has been said, the Tide Land Map exhibited
a great portion of the city over which the Com-
missioners had no jurisdiction, and a portion of
this was the land excluded by Stratton. As
Stratton’s Survey showed a large portion of the
city outside of the Pueblo limits, it was thought
advisable to designate the land excluded in some
way, and so the two gores of which we spoke
at the outset were colored brown, while that
around Mission and Islais Creeks was colored

green.

But the pregnant fact is, and it should be con-
trolling when this map is talked about, that the
line of high water is placed precisely where it was
placed by Eddyin 1851. In other words, instead
of following Stratton’s line of high water, as the

Commissioner seems to think, the Tide Land
Commissioners pay no attention to it whatever.
And all the land, without exception, which Strat-
ton’'s Map shows to be outside of the Pueblo,
would, by the Tide Land Map, be inside of it.

This is all there is of this matter, and we think
the brief statement of facts given are sufficient to
show that neither the Tide Land Commissioners,
nor the city by any act, word or deed, so far as
the Tide Land Survey was concerned, ever agreed
with Mr. Stratton that the land excluded by him
was, or ever had been since 1846, a portion of the
Bay of San Francisco.

Secondly — As to the Sales alleged to have been
made of the excluded land. The Tide Land Com-
missioners, by the Act of 1868, were compelled to

39

sell, at public auction, all the lands within their
jurisdiction. We think we are safe in saying that
not a single lot in the gores excluded by Stratton
was ever offered at public sale by the Commis-
sioners. They only offered and sold at public
auction the lands lying under water. Had any of
this land been attempted to be sold at public
auction, over the heads of those who had city
titles and who had been in possession for many
years, there would have been a popular uprising.
They did not offer to sell even all the lands
lying under water, for in many cases there was
some sort of possession of some of these lands,
much money had been expended by the assumed
owners in acquiring titles supposed to be good,
and for these considerations it was thought there
were equitable claims which should be respected.
For these reasons the powers of the State Board
were extended by the Act of 1870 [Statutes
1869-70, p. 541], and by that of 1874 [ Statutes
1873-74, p. 858, Sec. 4], and permission given to
the Board to compromise with parties claiming
adversely to the State as to lands lying under
water. [Compare Section 1 of Act of 1869-70
with Section 5 of the same Act, and note
that Section 4 of the Act of 1864 speaks only of
Tide Lands.] It was by virtue of compromises
authorized by these later statutes that there has
arisen a conflict of title between parties holding
under the city and parties holding these compro-

mise deeds. :
The State Board at first followed their authority

 

 
56

in only compromising as to lends lying under
water; but as Stratton had surveyed out a large
portion of the Pueblo, thus apparently clouding
the city title, the State Board, for some reason or
other, stretched their authority, and advertised
for persons holding titles within the disputed ter-
ritory to come to their office and get a State deed.
Some went, but many paid no attention to it, for
they felt amply secure with the title they had, and
did not choose to pay even a nominal sum for a
worthless thing — worthless for three reasons:
firstly, because the State had no title to give
secondly, because the lands were not under water,
and hence the Commissioners had no authority to
compromise by the express letter of the Statute;
and thirdly, because if the excluded land was
swamp, and was properly excluded, it passed to
the State under the Arkansas Grant of 1850, and
was covered (how much we do not know) by
swamp land certificates of purchase,

)

But this thing, meant in good part at first,
bore just such fruit as might have been expected.
After some years, certain persons, finding those
holding city titles, careless about availing them-
selves of the generosity of the Commissioners
in offering to give what they had no power to
give, preferred claims to the State Board based
upon pretended occupation in the early days of
the city. This culminated in what is popularly

‘known as the: “Ellis Grab,” wherein the city

herself was startled to find that a large quantity
of land which had been set apart to her for

 

37

for street and sewer purposes, had been conveyed
by the State Board to one Ellis, under its as-
sumed power of compromise. The proceeding
was a wanton and outrageous one, as was clearly
developed on an investigation by the Legislature;
and that the title conveyed by the Board is worth-
less was as clearly developed when it underwent
examination in the case of Tripp v. Spring, supra.
The Report of the Committee on the “Ellis
Grab,” as weil as the report of the case of
Tripp v. Spring, ave appended to this Brief. We
have also appended a deed for the Ellis land to
the United Land Association, together with the
Articles of Incorporation of that Association,
showing that this title is now held as a specula-
tion. That any one ever entered into possession
under one of these compromise deeds, and ever
made valuable improvements “under the belief
“ that the title of the State acquired by him was
“undisputed,” is a myth pure and simple. I
any improvements have been made on those Mis-
sion Creek lands since the State deed by any one,
it will be found that in every such case the im-
prover had both the State and City title. That
there were “numerous purchasers’ of these so-
called salt-marsh lands is not in any sense true.
They were not purchasers at all in the sense of
having bought at any offering of the property by
the Tide Land Commissioners; but they were, 1n
every single instance, parties who were claiming
adversely to the State, and with whom the State
Board assumed the power to compromise under

|
§
1
i
§

 
38

the sections above cited. And in this same cate-
gory stands the alleged fact of a purchase by the
city from the State Board, if it be a fact, the city
for the sake of greater caution having taken, as
an adverse claimant, a compromise deed the same
as any other adverse claimant.

Thirdly — As to the suit against Ellis. The
“ Ellis Grab” we have mentioned above and have

shown how it originated. As the land deeded by

the State Board to Ellis covered a large part of
the land embraced in a statute authorizing the
city to take certain lands for a sewer and street, a
suit was brought for the purpose of setting aside
the State deed. It is true that in this suit the
city attorney alleged ownership in the city from
the 27th day of March, 1874, and admitted, for
the purpose of the trial, that previous to that
time ownership was in the State. Why he pur-
sued this course, it is not for us to inquire; but
it scems that he rested his case upon the theory
that the Statute of 1874 (Statutes 1873-74, p.
711), operated a grant, but that if it did not, the
Attorney-General had not advised the conveyance
to Ellis. The District Court, however, held
otherwise on both points, and the cas: is now on
appeal to the Supreme Court of the State.®

But it is evident that the Legislature did not
consider the lands lying along Mission Creek as

*Since this brief was written, the Supreme Court has affirmed the
judgment of the District Court, expressly saying, however, that it
does not wish to be understood as deciding anything except the one
point, that the statute of 1874 did not operate a graat to the city.

   

39

belonging to the State; for in this very Statute,
authorizing the street and sewer, it is conceded
that these lands were held in private proprietor-
ship, and the city 1s authorized to purchase from
such owners, and to condemn where such pur-
chases could not be made. In pursuance of this
authority the city bought large quantities of these
lands from private proprietors holding the city
title, and constructed an immense sewer therein.

Every lawyer must try his case in his own way;
but it is difficult to see how the city could be
estopped by anything contained in the record of
the Ellis suit from questioning the Stratton Sur-

vey, and still more difficult to see how her cesiuts=

que trust could be estopped. In the Ellis /suit,
acting through her counsel, she simply chase to
rely upon one source of title, to wit: that acquired
from the State under the Act of 1874; but this
would not estop her in another proceeding from
setting up any other title, or as many titles as she
had. Nor could the admission of her counsel,
made for the purpose of one trial, be used against
her in any other trial. That the title acquired
by her from private proprietors is paramount to
that of Ells, or to any one standing in his posi-
tion, was specifically decided in Tripp v. Spring,
supra, for in that case one of Ellis’ grantees was
party plaintiff, and it was held that he had no title
as against the defendant, who claimed as benefi-
ciary of the Van Ness Ordinance. Beside, as we
have seen, the Act of 1874, authorizing the street
and sewer, recognized that the State bad no in-

   
 

REE

 

40

terest in the lands lying along the creek, all of
which were excluded by Stratton from his
survey.

[t scems that the suit was brought to set aside
the deed only as to the bed of the upper portion
of Mission Creek, and not as to any of the lands
lying alongside its banks, and so there was not
involved any question as to whether the State or
city title was paramount as to such lands. The
only question was, did Ellis under his State deed,
or the city, under the Act of 1874, have the
better right to the upper portion of Mission
Creek ? :

The mere fact that we are called upon to dis-
cuss the facts of this case, furnishes an interesting
commentary upon the manner in which the Strat-
tou Survey has been treated by the Commission-
cr, as the survey was transmitted in 1869, and the
Ellis suit was tried in this city last year, and the
record sent on without the knowledge of any one
save those interested in the “ Ellis Grab.”

It Mr. Justice Field is right in Tripp v. Spring
—and this case must stand as authority until
overruled by a higher tribunal than the Circuit
Court for this District—then the city holds the
legal title, in trust, for all the land involved in
the Ellis suit, and if there be no beneficiary, then
she holds it d.vested of the trust.

Dupond v. Barstow, 45 Cal. 446.

We have thus hurriedly gone over all the Acts
alleged in the Commissioner's opinion by way of

41

estoppel against the city, and we have shown that
the texture of each and every of them is slighter
than gossamer; that there is no substance in
them; and that the Commissioner could not have
had the requisite data before him on which to
base a correct opinion.

That the city could have acquiesced in a survey
which threw into the Bay of San Francisco the
land which she sold as pueblo land thirty years
ago, is too absurd for helief. Stratton’s Survey
has been subject of ridicule by every one who
knew anything of it, and there is no one bold
enough to say it was made on correct principles,
or that it followed the decree of the Court. It
sought to be sustained solely on the ground of
expediency; on the ground that to set it aside
would be to complicate titles. Never was there
a greater delusion. The fact is the other way.
Titles have rested on the fact that the shore-line
was in a certain place; this line has remained
undisturbed, and has become a great landmark of
property; and now, at this late day, we are told
that this line is all wrong and must be moved
back for at least half a mile, so as to uncover for
the spoiler, millions of valuable property. Every
map ever made of the city, official or otherwise,
shows this line of high-water mark to be where
Eddy established it in 1851; and a map made
official since Stratton's survey, shows the line to
be in the same old place. Does this look like
acquiescence? Oa the very land left out by Strat-
ton the city has enforced the outside land assess-

 
 

42

ment under Ordinance 800, confirmed by Act of
1868, and amended the same year (Statutes
1867-68, pp. 379 and 410). Does this look like
acquiescence? The city has maintained her pro-
test against this outrageous survey, notwithstand-
ing great pressure brought against her Supervisors
to withdraw it. Does this look like acqui-
escence ?

It would have been the easiest thing in the
world for Mr. Stratton to make a correct survey
of the Pueblo, if he had been so disposed.
But he was not so disposed. The land marks
were right under his eyes, but he refused to
see them. The Red Line Map, with which
every lawyer, conveyancer, land office clerk,
and surveyor are perfectly familiar, has hung up
in the Couty Surveyor's office ever since 1851; it
has been taken into Court hundreds of times; and
yet Mr. Stratton, of all the men in the world who
should have known of it, surveys and surveys
without any apparent knowledge of its existence.
Instead of seeking this information, which could
have given him what he manifested such appar-
ent eagerness to find, he goes nosing after a
swamp land segregation made in chambers in
1861, for the purpose of arriving at the line of
high water mark as it existed in 1846! To let
this survey stand would be a reproach to the de-

- partment; if it shall have the effect to perma-

nently establish the eastern boundary of the

Pueblo, it will unse‘tle titles as they have never

 

43

been unsettled in this city; and it will Jet the
spoiler forth to reap a rich harvest from his vic-
tims.

That the Commissioner committed a grave
error in his decision, natural under the circum-
stances, there can be no doubt, and we are sure
that he himself will only be too glad to see the
matter righted.

We are entirely satisfied with the opinion of
Surveyor-General Day, and are equally satisfied
that the case could not be better disposed of than
to order a survey according to that opinion.

The following Maps, illustrative of the argu-
ment, are either appended to the Brief, or will be
sent on within a day or two:

1. Copy of Red Line Map.
92. Copy of Coast Survey Map, referred to by
Mr. Rodgers in his testimony.

3. Copy of official Map, showing blocks and
streets affected by the Stratton Survey within
the Gores South of Market street, and also the
lands lying along Mission and Islais Creeks.

Epwarp R. TAYLOR,
JARBOE & HARRISON,
E. J. PRINGLE,

Attorneys for sundry Lot Owners.

 
 

   

Opinion in Case of Tripp vs. Spring.
C. C. TRIPP

VS.
F. S. SPRING.

\

Circuit Court, District of California, July 29, 1878.

ER  —

1. EASTERN BOUNDARY oF San FRANCISC i
: ) 0.—According to th -
£360 in the Pueblo case, the Bay of San Francisco is the en oll
mn of the land confirmed to the City of San Francisco, the line being
that of ordinary high-water mark as'it existed on the seventh of July,

2. Mission CRE'K No PART oF BoUNDAR issi

; Cr 2 Y.—Mission Creek -
stitutes no portion of the Bay of San Francisco. The rt eo

¢ : 0 )
hg tract confirmed crosses the month of all creeks running into the

3. PueBLo Lanps.—The laws of Mexico relatin
assigned to pueblos, required that such lands TRorht p jad tne
Square or prolonged form, according to the nature of the country, and
go i! as practicable, have regular lines for boundaries. The decree of
3 2 nited States Circuit Court in confirming the claim of the City
ollowed this requirement, and gave boundaries which could be easily

ascertained, and which formed as compact i i
i i pact a body as the situation of

. 4 Stare’s TrrLk To Tipe Lanps.—The eneral i :
State of California holds the title to soils ei tide othe dan jhe
hws 1s asserted; but such title could only devolve upon her where it
! ad not been previously granted to other parties by the sovereignt

rom which the United States acquired the country, or been oho
to trusts which require its disposition in some other way. If it were
acquired by the United States charged with any trust, the disposition

of it, in t 3 i i . : )
hig 1 the execution of that trust, will o.erride any claim of the

assumed by the treaty with Mexico, was to protect all ri
erty acquired under the laws of that nt The ii bil i
pueblos, equally with those of individuals, were entitled to protection
and in the legislation of Congress provision was made for their invest.
Mgation and confirmation. The right and power of the Government in
be execution of its treaty obligations to protect the claim of the City
0 San Francisco, Aas successor of the Pueblo, were superior to any
subsequently acquired rights or claims of the State, or of individuals.

5. TREATY OBLIGATIONS. —The obligations which the United States

  

 

 

45

6. Decrek Fixrs Bounpary.—The decree confirming the claim of
the City having fixed the Bay of San Francisco at ordinary high-water
mark as its eastern boundary, this line can not be changed by the Sur-
veyor-General or any department of government. The Act of Congress
of March 8, 1866, confirmed the claim as described in the decree, and
also relinquished all iuterest of the United States to the lands em-
braced by it, subject to certain exceptions and reservations. Any
patent of the United States which may hereafter be issued to the City
from the Land Department at Washington, can not affect the title al-
ready vested in the City and those claiming under it. The confirma-
tion approved and affirmed by the Act of Congress will control any
patent which the department may issue.

Before Mr. Justice FIELD.

This was an action for the possession of a par-
cel of land within the city of San Francisco.
The case was tried at the July term of the Court,
before Mr. Justice Field, without a jury, by stipu-
lation of parties. The facts are sufficiently stated
in the opinion of the Court.

Puruip G. GarLpiN, for the Plaintiff.
E. J. PringLE and A. CampBELL, Sr., for the
Defendant.

Fiero, J.

This is an action for the possession of a parcel
of land within the city of San Francisco, consti-
tuting a portion of the block bounded by Mis-
sion, Howard, Seventeenth and Eighteenth streets,
and designated on the map of the city as block
sixty (60). The plaintiff is a citizen of Illinois,
and asserts title to the premises under a convey-
ance executed by the State Board of Tide Land
Commissioners, in November, 1875, to one Geo.
W. Ellis, through whom he derives whatever in-
terest he possesses. The defendant is a citizen of
California, and claims the ownership of the prem-
ises by conveyance from parties who acquired the
interest of the city of San Francisco under the
ordinance known as the Van Ness Ordinance, and
the confirmatory legislation of the State and of
the United States. The case is believed to be a

 

 

   

 
 
   

  
 

 

46

test one, and it is stated that upon its disposition
numerous other cases, depending upon the effi-
cacy of the deed of the Tide Land Commission-
ers, will be determined.” It is tried by the court
without the intervention of a jury by stipulation
of the parties. :

The contention of the plai tiff is, that the pre-
mises i controversy were, on the admission of
California into the Union, either lands covered by
the tide waters of the bay of San Francisco, and
that their title then vested in the State, by virtue
of her sovereignty; or that they were, upon such
admission, salt marsh lands, which at once passed
to the State under the Act of Congress, of Sep-
tember 28, 1850, known as the Swamp Land Act;
and that in either case the title of the State was
conveyed to Ellis by the deed of the Tide Land
Commissioners. The statute providing for the
appointment of these Commissioners, makes their
deed prima facie evidence of the regularity of
their preliminary proceedings, and of their sale
and of title and right of possession in the grantee.
(Laws of 1867-8. p. 720.) And the plaintiff also
contends that this prima fucie evidence cannot be
controverted in an action at law until the de-
fendant has connected himself with the original
source of title. R

The premises are situated where formerly was
a stream called Mission Creek, running up from
the waters of a bend in the bay of San Francisco
known as Mission Bay. They are distant about
a mile from the mouth of the creek. All of that
stream which covered any portion of block sixty
(60) is now filled in, and upon the land thus
formed, and adjoining lands, several buildings
have been erected, which are occupied as private
residences. Whether the waters of the bay were
ever carried by the tide over the lands is a matter
upon which the evidence is conflicting. The creek
was often swollen by water from the adjacent

47

hills so as to overflow its banks, and the tide
sometimes, though not regularly, forced back
the waters of the creek, so as to cause a similar
overflow. But from the view we take of the case
it is immaterial whether the lands could ever
properly be termed tide lands or marsh lands,
whether they were at any period covered by the
daily tides, or lay beyond their reach at their
highest flood. The record of the proceedings and
the final decree in the Pueblo Case have been

“given in evidence, and from them it appears that

the premises are situated within the limits of the
tract confirmed to the city of San Francisco.
This tract embraces so much of the upper portion
of the peninsula, upon which the city is situated,
above the ordinary high water mark of 1846, as
will contain an area of four square leagues, being
bounded on the north and east by the bay of San
Francisco, 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 designated, subject to
certain deductions which it is not material to
mention in this connection. Mission Creek never
constituted any portion of the bay of San Fran-
cisco any more than the Sacramento River con-
stitutes a portion of the bay of Suisun, or the
Hudson River a portion of the bay of New York.
As the demanded premises lie where Mission
Creek formerly existed, or where its banks were,
they necessarily fall within the tract confirmed
to the city. The boundary of that tract runs
along the bay on the line of ordinary high-water
mark, as that existed in 1846, crossing the mouth
of all creeks running into the bay, and that of
Mission Creek among others.* The boundary

 

* This line of ordinary high-wa'er mark was established by the
Municipal Authorities of the City of San Francisco, in 1851, under
what is known as the first Water Lot bill. (Stats. 1851, p. 307.) The
State, by that act, granted to the City of San Francisco, for ninety-
nine years, the use and occupation of certain lands, bounded ou one

 
ye

48

would have been a very singular one had it fol-
lowed the windings of that creek and its branches,
wherever the tide waters of the bay may have
flowed. The laws of Mexico, relating to lands to
be assigned to Pueblos, required that such lands
should be laid out in a square or prolonged form,
according to the nature of the country, and, so
far as practicable, have regular lines for bounda-
ries. The decree of the United States Circuit
Court in confirming the claim of the city followed
this requirement, and gave boundaries which
could be easily ascertained, and which formed as
compact a body as the situation of the country
would permit.

The general doctrine that the State holds the
title to soils under tide waters within her limits
1s not questioned. Her proprietary right to such
soils has been asserted in numerous instances,
both by the State and Federal Courts. It was
expressly recognized by the Supreme Court of
the United States in the recent case of Webber v.
The Harbor Commissioners, which originated in this
city (18 Wall. 65). Though the United States
acquired the title to the lands under tide waters
from Mexico equally with the title to the uplands,
they held it in trust for the future State. The

 

side by the lines of certain streets, and on the other by “natural high-
water m.rk;’’ and the statut: provided that a *‘ correct map of said
boundary line, distinctly and properly delineated by a red line,”
should be deposited within thirty days after the passage of the act in
the offices of the Secretary of State, of the Surveyor General, and of
the Surveyor of the City of San Francisco. The outside red line was
made by the act the water front of the Citv, while the inside red line
indicated the line of ordinary high-water mark. Between the two lines
were the so-called beach and water lots, the use and occupation of
which were granted to the City. It is matter of history that the survey
was nade as provided in the statute, the maps platted and 1ed lined,
and deposited with the proper custodians, where they have ever since
remained. :

By this well known ‘“red line map,” all parties since 1851, have
been governed in the*matter of determining the line of ordinary high-
water mark. And this line, as shown by the above mentioned map,
crosses Mission creek and all the creeks and sloughs that in 1851 emp-
tied into the Bay of San Franci co; but all of which, with the excep-
ion of a portion of Mission creek. have long since been filled np, and

uilt over,

 

49

ownership and consequent right of disposition
passed to her upon her admission into the Union.
But this ownership could, of course, only devolve
upon her where it had not been previously granted
to other parties by the former sovereign, or sub-
jected to trusts which would require its disposi-

tion in some other way. If it were acquired by

the United States charged with any trust, the
disposition of it, in the execution of that trust,
will override any claim of the State. :

That a Pueblo of some kind existed. at the site
of the present city of San Francisco upon the
cession of the country from Mexico; that such
Pueblo possessed proprietary rights in certain
lands, and that the city succeeded to such rights,
are no longer open questions for discussion or
judicial examination. They have been determined
by repeated decisions of the federal courts; and
however much counsel may be disposed to ques-
tion the original soundness of those decisions,
the conclusions reached must be received as es-
tablished facts, and all the legal consequences
flowing from them accepted. The obligation
which the United States assumed by the treaty
with Mexico was to protect all rights of property
acquired under the laws of that country. The
property rights of Pueblos, equally with those of
individuals, were entitled to protection, and in
the legislation of Congress provision was made
for their investigation and confirmation, The
right and power of the Government in the exe-
cution of its treaty obligations to protect the
claim of the city of San Francisco, as successor
to the Pueblo, were superior to any subsequently
acquired rights or claims of the State or of indi-
viduals. (See Zeschemacher v. Thompson, 18 Cal.
28). ;

It is undoubtedly true that until the confirma-
tion of the city’s claim the Government retained
the right to control the use and disposition of

 
 

50

the Pueblo lands, where, by action of the officers
of the Pueblo, or of the city, its successor, they
had not been previously vested in private pro-
prietorship; and, perhaps, had Congress, in terms
so declared, the swamp lands within the limits of
the Pueblo may have been alienated to other
parties. There is no occasion, however, to ex-
press any opinion on this point, as the only Act
of Congress to which reference is made, that of
September 28, 1850, was clearly not intended to
apply to any lands then held by the United States
charged with the equitable claim of others, which
they were by treaty bound to protect.

Our conclusion is that the premises in contro-
versy constitute a part of the tract confirmed to
the city by the decree of the United States Cir-
cuit Court, entered on the 18th of May, 1865.
That decree became final by the Act of Congress
passed on the 8th of March, 1866, which was
followed by a dismissal of the appeal taken to
the Supreme Court.

The defendant has shown that the parties,
through whom he claims, were in peaceable, ac-
tual possession of the lands in controversy at the
time the Van Ness Ordinance took effect, and on
the passage of the confirmatory Act of the Leg-
islature of the State, and had made valuable im-
provements upon it, and thus acquired the title
of the city. He has thus brought himself in
connection with a title superior to that of the
plaintiff. It follows that judgment must be en-
tered in his favor.

. The suggestion that the survey of the Pueblo
claim forwarded to the Land Department at
Washington, follows the banks of Mission Creek,
cannot have any weight in the case. The decree
confirming the claim of the city fixes the Bay of
San Francisco at ordinary high-water mark as its
eastern boundary, and this line cannot be changed
by the Surveyor-General, or any department of

   
 
 
   

   
  

   

01

Government. The Act of Congress confirms the
claim as described in the decree, and also relin-
quishes all interest of the United States to the
lands embraced by it, subject to certain excep-
tions and reservations not material to be now
considered. Any patent of the United States
which may hereafter be issued to the city from
the Land Department at Washington can neither
add to or take from the title already vested in
the city and those claiming under it. The con-
firmation approved and affirmed by the Act of
Congress will control any patent which the De-
partment may issue. A patent -of the United
States operates, as was held by the Supreme
Court, in a recent case, in two ways: ‘It is
a conveyance by the Government,” said the
court, “ when the Government has any interest
to convey; but where it is issued upon the con-
firmation of a claim of a previously existing title,
it is documentary evidence of the existence of
that title, or of such ejuities respecting the claim
as justify its recognition and confirmation. The
instrument is not the less efficacious as evidence
of previously existing rights, because it also em-
bodies words of release or transfer from the Gov-
ernment. (Langdeau v. Hanes, 11 Wall.521.) It
was a legislative confirmation of which the Court
was here speaking, and in the case of San Fran-
cisco, we have both a judicial and a legislative
confirmation, the latter sanctioning and affirming
the former. By it the title of the city and her
alienees became perfect, and no patent can ever
disturb or strengthen it. And yet a patent will
be of great value, as it will enable parties to
maintain their titles in the tribunals of the coun-
try without other proof of the claim of the city
and its confirmation, and it will also remove
doubts as to the boundaries of the tract where
their establishment rests in the uncertain recol-
lection of witnesses as to places which are fast
 

52

becoming obliterated by the improvements of a
constantly increasing population. But it cannot
by any possibility make a creek running into the
bay a part of the bay itself, and it is not to be
supposed that any suggestion of the kind will be
heard with favor by those to whom the duty of
issuing a patent is entrusted.

 

Nork.—The decision in the above case was given orally, the presid-
ing Justice stating at length his views, and observing that he would at
a subsequent day file an opinion embodying their substance. A day
was then fixed for counsel to prepare the findings, but soon afterwards
the case was settled, and the suit dismissed by stipulation of parties.

 

 

REPORT

of Senate Committee on Deed of State
Tide Land Commissioners to Ellis.

 

Mg. PresmENT: Your special committee to in-
vestigate the matter of the sale of the tide or
salt marsh lands of the State, respectfully report
as follows: :

Immediately after the appointment was made,
we gave notice through our Chairman that we
would, upon a day named, visit San Francisco,
for the purpose of making the investigation and
giving every one an opportunity to be heard be-
fore the committee.

The whole committee, in a very few days there-
after, repaired to San Francisco for the purpose of
making as thorough an examination of the ques-
tions before them as possible.

The public press of San Francisco had called
attention to the whole matter before the appoint-
ment of the committee, and gave general notice
to the public of the time and place of meetings of
the committee, so that every one was afforded a
fair opportunity to be heard, and a great many
persons availed themselves of it. The committee
used every endeavor to possess themselves of all
information within their reach touching the mat-
ter. They devoted all the time to the subject
that the pressure of their other duties would
allow. They sat in San Francisco until all the
testimony that could be reasonably produced was
heard, after which they adjourned to meet at
Sacramento, where they met from time to time,

 
04

until they were satisfied they had taken all the
testimony that could be of reasonable service in
the premises, taking into consideration the time
at their command. The committee, in the dis-
charge of the duty imposed upon them, examined
many maps, records, deeds and documents, took
four volumes of oral testimony, amounting in the
aggregate to six hundred and seventy-seven pages
of written matter, and in addition thereto, they
went upon the ground embraced in the Ellis
deeds, in order to personally inspect and examine
the condition thereof.

The late Board of Tide Land Commissioners
were acting under the Act of the Legislature of
the State of Culifornia, approved March thirtieth,
cighteen hundred and seventy-four—found in the
statutes of eighteen hundred and seventy-three—
four, page eight hundred and fifty-eight. That
Act, by its second section, gave to the State Board
of Tide Land Commissioners, the power and
duties of the old Board of Tide Land Commission-
ers. The fourth section gave the said Commis-
sioners, or a majority of them, power to com-
promise with any adverse claimants to any por-
tion or portions of tide lauds under their control,
whenever and on such terms as they may deem
most conducive to the interests ot the State. All
such compromises to be by the advice of the At-
torney- General of the State.

At the same session of the Legislature, and on
the twenty-seventh day of March, cighteen hun-
dred and seventy-four, another Act was passed,
granting the tide lands in Channel street and
Mission Creek, between Niuth and Eighteenth
street, to the City of San Francisco, and vacating
sald Channel street and Mission Creek as a high-
way betwezn said points, and authorizing the city
to divide the same into lots and blocks and sell
it. (Statutes of 1873-4, pages 712 and 713;
Sections 2 and 3 of said Act.)

 

F

09

The city authorities, under the last-named Act,
did divide these lands into proper subdivisions,
and laid down tlie proper streets through to them,
in accordance with the plan of the city, in the
vicinity of Channel street and Mission Creek.
This Act, in the opinion of your committee, took
all of the tide lands in Channel street and Mis-
sion Creek, between Ninth and Eighteenth streets,
from the control of the State Board Board of Tide
Land Commissioners (and from the control of the
State), and vested the title thereto in the City
and County of San Francisco, subject to the dis-
position by the Board of Supervisors of said city
and county, as directed in said Act. ‘The State
Board of Tide Land Commissioners,” organized
under the Act of March thirtieth, eighteen hun-
dred and seventy-four, above referred to, and
thereafter offered a considerable quantity of tide
land for sale at public auction. These auction sales
took place in November, eighteen hundred and
seventy-five. We have given such auction sales
quite a searching examination, and while your
committee have found that quite a number of lots
of land were knocked off at such sales to different
men from those who received the deeds from the
Board, we have been unable to discover any fraud.
The practice seems to have been to give the final
deed to the assignees of the original purchasers, in
pursuance to a practice that had been indulged in
by former Boards; and in several instances, lots
purchased at the sale and not paid for on the day
of sale, were on the next day put up and resold
for a less price than first bid. The practice was
loose and hardly in strict accordance with a
wholesome rule of procedure.

By these sales, some twelve thousand nine hun-
dred and seventy dollars and fifty-nine cents were
realized, as shown by the supplemental report of
the Commissioners, made on the sixth of Decem-
her, eighteen hundred and seventy-five.

 
06

There were some other sales made to Messrs.

Duane and Hearst, of lands about which there

was a contest before the Board by several claim-
ants, and the committee is inclined to the opinion
that the award to Duane and Hearst was, under
the circumstances, correct, at least we have been
unable to discover any positive unfairness or op-
pression in the sales, although considerable testi-
mony was taken in regard to them. It was
soon developed in the examination that a consid-
erable quantity of these tide lands of great value
had been (by a kind of general residuary sale)
conveyed to one George W. Ellis. As to this sale,
a very large amount of testimony .was taken, a
considerable portion of which was conflicting and
contradictory. The Ellis sale was the last one
made by the Board, from which, according to the
deeds, was realized the sum of five thousand seven
hundred and forty-six dollars and ninety-six cents.

The lands embraced in the deeds are the whole
of Old Channel street and Mission Creek between
Ninth and Eighteenth streets, except such portions
as were taken by the new streets laic out by the
city authorities, as above set forth, and except,
also, a small portion of Old Channel street, (r
Mission Creck, bounding on Mission blocks forty-
two and one half, forty-five and forty-six.

These deeds also embraced some closed up
streets in Mission Bay—blocks one hundred and
thirty-three, forty and forty-one, and also the
greater portion of Mission block fifty-nine, a large
portion of the west half of block sixty, and a large
portion of the west half of block forty-nine to-
gether with some small portions of New Channel
street. This sale was authorized (or rather made)
- by the Board at their last meeting in San Fran-
cisco, upon the records of the Board, at page two
hundred and ninety-two. Under date of Novem-
ber twenty-fourth, eighteen hundred and seventy-
five, we find the following entry:

 

57

“In the matter of the application .f George
W. Ellis; on motion, it was ordered that the en-
gineer denominate all parcels of land included in
the pre-emption claim of said Ellis and others, as
per record in liber B of Miscellaneous Record,
page six hundred and sixty-five, Recorder's Office,
City of San Francisco, which have not heretofore
been disposed of by the State of California
through the Board of Tide Land Commissioners,
and that said Ellis be allowed the privilege of
purchasing all the right, title, and interest of the
State of California thereto, at the rate of four dol-
lars per one thousand square feet.”

From the evidence taken it appears that the
above was not embraced in any formal motion
made before the Board, but that it was written up
from rough memoranda kept by the Clerk or Sec-
retary, as expressing in a formal way the conclu-
sion of the Board on the question.

It further appears, from the 2vidence, that
Allardt, the engineer, was ordered to lay down on
a map all the unsold lands, so that proper des-
criptions could be made of the lands ordered to
be conveyed to Ellis. :

Mr. Allardt says the instructions to make the
map came from Secretary Russell.

Mr. Allardt further states that he was instruct-
ed by Commissioner Green to include the land in
Mission Creek; that being in doubt, he went to
Green for instruction. He also states that he
produced the siatute of March twenty-seventh,
eighteen hundred and seventy-four, and informed
Mr. Green of it, which Act conveyed Mission
Creek to the city, as before stated.

Mr. Green denied it, and Allardt was then un-
certain whether Green got the information, but
was certain he opened the book and showed the
statute to Paul Neuman in Green's presence—
that Neuman read it, but he cannot say if Green
heard it. We might say here, it appears strange

 

 
 

 

08

that the commissioners, and even the Attorney-
General, were all ignorant of the Act, and jet
this engineer and the Secretary Russell both knew
of it, and the matter becomes a wonder when we
take into consideration the fact that no offer, or
attempt was ever made before the Ellis sale to
sell the lands in Mission Creek, or any part of
them. Acting under the instructions received
by him, the engineer, Allardt, prepared and filed
with the Board two maps, exhibiting the unsold
portions of tide lands afterwards included in the
Ellis deeds.

One was quite a large map, and was used before
yoar committee, and marked ‘° Exhibit A.”
This map included Mission Creek from Ninth to
Eighteenth streets, and also Mission blocks forty-
nine, fifty-nine and sixty.

The other was a much smaller map, some two
feet square, upon which was laid down three
small pieces of land included in the Ellis deeds,
being parts of closed streets in Mission Bay blocks
forty, forty-one and one hundred and thirty-three.

Both these maps were returned to and filed
with the Board before the Ellis deeds were drawn
or signed, and the descriptions were made up
from the data furnished by said maps. It will be
observed that by the entry on the minutes of the
Board, Mr. Ellis was to be allowed to purchase as
much of the unsold tide lands as were embraced
in the pre-emption claim of Ellis and others as
per record in liber B, of Miscellaneous Record of
San Francisco, at page six hundred and sixty-five.
It was the united testimony of all the members
of the Tide Land Board, and of their Secretary
and Clerk, that they did not pay any attention to
the claim of Ellis whatever, did not consider it of
any value, and that they never could ascertain
what it covered, or where located. This led us
to inquire into the kllis claim, and upon this
question we took much testimony, called people

 

99

before us who have been familiar with the territory
covered by the Ellis deeds, from which it was
made clearly to appear to your committee that
the claim of Ellis was a mere pretense, and never
had any substantial foundation in law or fact. As
to Mission Creek, it was shown that it was a nav-
igable stream in law and fact, from its mouth up,
even as high as Eighteenth street, and so remained
until at a comparatively recent period.

It is further shown that there were older claims
than Ellis’s, conveying the whole of these lands.
and that the owners of such claims, and those
claiming under them, had improved and built up
the country, while Ellis had done comparatively
nothing.

We procured a copy of the document referred
to in the resolution as the Ellis pre-emption
claim, which is herewith presented, marked  Ex-
hibit D.” It was dated August eighteenth, eigh-
teen hundred and fifty-three, and purports to be
made under the Act of the Legislature of April
twentieth, eighteen hundred and fifty-two, but is
in distinct violation of this Act, is made in the
names of three different persons, has no intelligent,
description, and was, in the judgment of your
committee, utt.rly worthless. Another possessory
claim in the names of Ellis & Kleenskroth, dated
July twenty-first, eighteen hundred and fifty-
three, which was in pretended compliance with
the same Act of eighteen hundred and fifty-two,
and is equally worthless, in the judgment of your
committee, for the reasons already given. A
copy of this instrument is herewith presented and
marked ‘‘ Exhibit D%.” It appears from thé tes-
timony that Ellis, prior to the Duane and Hearst
deeds, as well as prior to his own award, had been

~ often before the Board, but the Board had con-

sidered his claim of no value, as having neither
legal validity or any local habitation. No one
was able to locate it. It appeared from the testi-

  

  
 

60

mony of Charles I. Duane, and from documents,
that” there was an arrangement entered into
between Ellis and Duane, that Ellis was to with-
draw his claims to the lands claimed by Duane.
Under this arrangement Ellis made a deed to
Duane dated September twenty-first, eighteen
hundred and seventy-five, of blocks two hundred
and seventy-one, two hundred and seventy-two,
two hundred and forty-two, and two hundred and
thirty-five; that in consideration of this deed,
Duane was to assist Ellis in getting the balance ot
his claim through.

W. H. Patterson was the counsel for Duane,
and Duane advised Ellis, as his (Ellis’) lawyer
was an old man, that he had better get others to
assist him; whereupon Duane advised Ellis to se-
cure the services of W. H. Patterson and Creed
Haymond, and it was finally agreed to secure
their services in the matter, which was done.
This was accomplished by Ellis deeding to Duane
the one-half of his remaining claim. Duane paid
no money for either of these ceeds. Duane then
completed his arrangement with Patterson and
Haymond in behalf of Ellis, and in pursuance of
that agreement Duane deeded to Creed Haymond

the one half of his interest in the Ellis claim,

through the deed from Ellis to him of the
twenty-first of September, eighteen hundred and
seventy- five, above referred to; but in this deed
the date of the Ellis deed was erroneously stated
to be October twenty-first, eighteen hundred and
seventy-five, instead of September twenty-first,
eighteen hundred and seventy-five.
The deed to Haymond was dated the fifteenth
of November, eighteen hundred and seventy-five.
“Duane conveyed to Patterson his other half of
the Ellis claim about the same time, so that at
the time of the award and deeds to Ellis he had
but one-half interest in this claim, and Haymond
and Patterson the other half.

   

61

 

There was evidence before the committee of
several consultations between Duane, Haymond
and Patterson as to the Ellis claim, but we could
not find that either of these lawyers ever ap-
peared before the Board to urge said claim
Ci anything else in its behalf. What service
ey ronyneal for these deeds we have not ascer-

From the testimony taken, it seems that the
people affected by the Ellis deeds had no warning
as to approaching danger, as none of the lands
conveyed to Ellis had ever been offered for sale
or, if any had been offered, they had been with-
drawn. True, some persons in block fitty-nine
out of excess of caution, had gone to the Board
and obtained deeds of their lots for a small con-
sideration. Some of the members of the Board
claim that reasonable notice was given. We
fans hn as we could learn from patient
nquiry, taking into i I 3
ace % so a consideration the lands
A specimen of the notice giv 2
nished us. It is as follows: prota a
The owners of lots south of Market, north of
Nineteenth, and west of Third streets who have
not acquired the State title, are requested to
bring their deeds and obtain information at the
office of the Tide Land Commissioners. seven
nated and fifteen Clay street.”

uch notice is indefinite, and sigr

a notice not likely to attract a8 Sa i
It further appears from the evidence before
us, that Ellis has obtained deeds to land of great
value, upon which costly improvements have been
made by people in good faith, for a mere nominal
sum; and that a great outrage has been perpe-
trated on an unsuspecting people. ‘We found
much of the property conveyed by the Ellis deeds
well improved and people living on it. Mission
block fifty-nine was purchased by the Howard

  
 

 

62

and Folsom Street Property Union, in eighteen
hundred and sixty-cight, and at the time of the
purchase had Messrs. Boyd & McCullough exam-
ine the title, who pronounced it good. This com-
pany paid eighty-one thousand dollars for the
property; filled it in at an expense of seventy-
five thousand dollars; and had expended other
sums in taxes, etc., so the property had cost them,
at the time of the Ellis sale, some one hun-
dred and fifty-six thousand dollars. There are
several residences on this block, owned by differ-
ent citizens.

The value of the lots in this block, covered by
the Ellis deed, was estimated by good judges,
under oath, to be from seventy-five thousand dol-
lars to eighty thousand dollars.

Mission Block sixty was fenced in in eighteen
hundred and seventy, had been filled at a cost of
thirty thousand dollars. The portion of this
block conveyed to Ellis was worth, without the
buildings thereon, from twelve thousand dollars
to twenty thousand dollars, and with the build-
ings thereon, some eighty thousand dollars.

Mission block forty-nine has been filled in for
about ten years, at a cost of eight thousand dol-
lars to ten thousand dollars. The portion con-
veyed to Ellis is worth about twenty thousand
dollars, and belongs to the German Savings Bank.
It will thus be seen, leaving out of the estimate
the value of old Channel street and Mission
Creek, and the three small picces of land, being
parts of closed streets, Ellis was making quite a
nice speculation in well-improved property ready
for private use or rent.

The committee examined, under oath, every
member of the Tide Land Board, and they, one
and all, seemed to be astonished to find out what
they they themselves had done. Ex-Governor
Pacheco stated that he was surprised when he
learned from the papers the extent of the grant

 

 

 

63

made to Ellis; that he did not know a foot of the
land; said that after the auction sales he asked if
there was any land left, and the Secretary in-
formed him that there were a few triangular
pleces; that it was proposed to convey these small
pieces to Kllis—pay him off with a shilling
which was agreed to; that a few days before he
went out of office, being in the Governor's office
in Sacramento, the other Commissioners came in
with Ellis and the Secretary, having some fifteen
or twenty deeds, and he was requested to sign
them; that he said, “ Gentlemen. I suppose these
are all right ?”” that he was assured they were,
and signed them without reading them or know-
ing their contents; that he supposed they were
conveying to Ellis only some small triangular
pieces, and that he never knew of the existence
of the Act making the grant of Mission Creek to
the city. Says the deeds were presented to him
for signature by the Secretary, Mr. Green, and

 

 

- Mr. Gardner.

Ex-Controller Green stat:s that he never saw
the map *‘Exhibit A,” until after the papers began
to attack the Ellis sale; that he never knew what
the Ellis claim contained; that he tried to have the
Attorney-General advise the Board, but could
scarcely ever find him; at last succeeded in get-
ting him to write a short direction, which was
copied in the minutes of the Board, at page two
hundred and eighty-nine, which is as follows:

: San Francisco, Nove » ber, 5th, 1875.

I hereby advise the State Board of Tide Land Commmigsioners to
dispose of all lands where there is no litigation, and where they can
ascertain to whom the State title ought to go in pursuance of the tide
land Acts. JOHN L. LOVE, Attorney-General.

Green states that he knew nothing of the Act
making the grant to the city; that he signed the
Ellis deeds, not knowing what they contained;
never read them. Mr. Green further states, that
the only map before the Board about the Ellis

=U.

A

Lg

fn

SO A
v 4
J
x /

  

  
64

sale, was the small map, showing the three small
pieces of land conveyed to Ellis; that the Attor-
ney-General showed an unwillingness to attend
the Board; said it was none of his business. He
further stated that when the sale was made to
Ellis, he had no idea they were conveying to him
what it has since transpired they did convey by
those deeds.

Ex-Attorney-General Love testified that he
never knew of the Act making the grant to the
city of Mission Creek; that he considered Ellis’
claim the merest nonsense, and refused to sign
those deeds and many others. |

Ex-Surveyor-General Gardner swears that he
never saw the map ‘ Exhibit A,” until after the
Ellis sales were denounced in the papers; that the
only map he saw was a small one, which he re-
quested Mr. Russell to bring to Sacramento with
the deeds, but it was not done, and he signed the
deeds without reading them or knowing their
contents; and had he known their contents he
would not have signed them; that he was deceived,
but by whom he does not know; that he knew
nothing of the Act making the grant to the city;
that he had no idea they were conveying to Ellis
any part of Mission Creek, nor anything else,
save two or three small triangular pieces of land
represented on the small map. He further stated
that he never told Governor Pacheco that the

deeds were all right.

The Ellis deeds (copies of them) are herewith
preseuted; one contains thirteen pages and the
other fourteen. And your committee think it a

_ little strange that these Commissioners should
sign deeds as voluminous as these were ‘without
reading them, when they all seemed to be sure
that the award to Ellis, was of two or three small
triangular pieces of land. Prudent men, it does
seem to us, would feel curious to know, how it

65

could take two volumi
nal as nous deeds to convey three
t further appears to the 1
cominittee that
ee officers were grossly negligent in a
% and fan no care to see what they were doin
n conclu ’ mi i
I clusion, your committee submit the fol-
. First—That the Ellis deeds convey no title to
ny of Mission Creek or old Channel street
ih e reason that by a legislative grant the title
ny e me Was conveyed to the City and County
2 rancisco prior to the organization of the
Sam , and it was not in the power of the Tide
ond Board to convey it to Ellis
ppean—-Thit the deeds to blocks forty-nine
! Jains and sixty conveyed no title, as said
pgs ox Seipior tide lands nor salt marsh
, an
pe not in the power of the Board to con-
i Ls Ty the testimony taken, together
bi e deeds, should be turned over to the
1 oF the State, and that he be
0 take such action in the premises
. . ae
he oo 3 proper to CLO the cloud
eeds from Mission Creek, and :
from Mission blocks F. i ma
: : orty-nine, fifty-ni
sixty; and in furtherance of that eh) Ry
with present a resolution.” All of which is most
respectfully submitted.
McCOPPIN, Chairman
LAINE,
LINDSEY,
EVANS,
O'CONNOR.

 

 

 

 

 

Note.—This document i
i . 1 1s now appended to th i
ime, but is on file with the papers in the Interior Sat fos fs ue

 
Deed of Tripp to United Land Association,

tio

 

Clinton C. Tripp, to the United Land Association:

This Indenture made the twenty-second day of
May, in the year of our Lord, one thousand eight
hundred and seventy-cight, between Clinton C.
Tripp of the City of Chicago, County of Cook,
State of Ulinois, party of the first part, and The
United Land Association of the City and County
of San Francisco, State of California. a corpora-
tion duly organized and existing under and by
virtue of the laws of said State, the party of the
second part.

Witnesseth, that the said party of the first
part, for and in consideration of the sum of five
dollars, gold coin of the United States of America,
to him in hand paid by the said party of the
second part; the receipt whereof 1s hereby ac-
knowledged, doth by these presents, grant, bar-
gain, sell and convey unto the said party of the
second part, and to their heirs and assigns for-
ever, all that certain lot, piece or parcel of land,
situate, lying and being in the City and County
of San Francisco, State of California, and more
particularly bounded and described as follows,
to wit:

One undivided fifteen-sixteenths 12) of that
piece or parcel of land, known asthe “Ellis Claim,”
and described in a so-called pre-emption claim or
pre-emption notice, a record whereof is contained
in the Office of the Recorder of the City and
County of San Francisco, in Liber “B,” of Mis-
cellaneous Records, page 665, and also all the un-

   

  
   

67

divided fiftcen-sixteenths, (}) of all that land
described in two certain deeds made by the State
Board of Tide Land Commissioners of the State
of California, to George W. Ellis, and bearing
date, November 24th, 1875, and recorded in the
Office of the County Recorder of the City and
County of San Francisco, in Liber 816, of Bina
pages 7 to 22, inclusive. (The above notice and
deeds being made a part of this deed.)

Together with all and singular, the tenements
hereditaments and appurtenances thereunto be-
longing, or in any wise appertaining, and the re-
version, remainder and remainders, rents, issues
and profits thereof: To have and to hold all, and
singular, the said premises, together with the ap-
purtenances unto the said party of the ey
part, their heirs and assigns forever. In witness
Wht Doan parky of the first part has here-

set his hand an :
ieetihish seal the day and year first

[SEAL.] CLINTON C. TRIPP.

Signed, sealed and deli :
A. C. Hammond. elivered in the presence of

. STATE OF CALIFORNIA,
“Gy 9nd County of San is
n the twenty-third day of May, A. D.

thousand eight hundred 3 i: D ge
me, Louis Franconi, a Notary Public, in and for
said City and County, residing therein duly com-
missioned and sworn, personally appeared Clin-
ton C. Tripp, known to me to be the person whose
name is subscribed to the annexed Instrument,

and 1
hs acknowledged to me that he executed the

In witness whereof, I hav
\ e hereunto set m
hand and affixed my official seal, at my office, =

 
68

the City and County of San Francisco, the day
and year last above written.

SEAL. Lous Fraxconr,
: Notary Public.

" : ¢
A true copy of Original, recorded at reques
of L. A. Booth, May 24th, A. D. 1878, at 10
minutes past 3 P. M.
STUART M. TAYLOR,
County Recorder.

STATE OF CALIFORNIA,
City and County of San Francisco.

I, W. K. DierricH, County Recorder, do hereby
certify that the annexed is a whole, true and cor-
rect copy of an original record, as will appear by
reference to Book 914 of Deeds, page 91, now in
my office, and that said copy has been compared
with the original, and is a correct transcript
therefrom.

Witness my hand and Official Seal, this 22d
day of March, A. D. 1880.

W. K. DiErrICH,
County Recorder.

Per W. P. MErr1ay, Deputy.

Endorsed: Certified copy of deed C. C. Tripp
to United Land Association.

 

i i i ief for the first
Nore.—This document is now appended to the brief fo
time, but a certified copy of it is on tile with the papers in the In-
terior Department.

Articles of Incorporation of the United

Land Association.

or

KNow ALL MeN BY THESE PRESENTS: That we,
the undersigned, who are citizens of the State
of California, do hereby voluntarily associate our-
selves together to form a private Corporation
under the laws of said State, and do hereby
certify:

First.—That the name of said Corporation
shall be the UNitep LaNp Assocration.

Second. —That the purpose for which said cor-
poration is formed is to buy and sell, lease and
improve real estate, in the State of California,
and to do a general agency and land commission
business.

Third. —That the place where the principal
business of said corporation is to be transacted,
is the City and County of San Francisco, State of
California.

Fourth—That the term for which said cor-
poration is to exist is 50 years.

Fifth—That the number of the Directors of
said corporation shall be five, and the names and
residences of the Directors, who are appointed
for the first year, are as follows, to wit:

L. A. BOOTH, whose residence is at Oakland,
Cal.

GEO. A. MILLER, whose residence is at Oak-
land, Cal.

J. G. JAMES, whose residence is at San Fran-
cisco, Cal. -

J. M. LITCHFIELD, whose residence is at
San Francisco, Cal.

 
    

 

 

70

J. Gt. RILEY, whose residence is at Oakland,
Cal.

Who are citizens of this State.

Sixth.—That the amount of capital stock of
said corporation is six hundred thousand dollars,
and the number of shares into which it is divided,
is six thousand, of the par value of one hundred
dollars each.

Seventh.—That the amount of said capital stock
which has been actually subscribed is six hundred
thousand dollars, and the following are the names
of the persons by whom the same has been sub-
scribed, to wit: -

 

 

 

 

 

NAMES oF SUBSCRIBERS. NO. OF SHARES. AMOUNT.
| ;
L. A. Booth...... einen | 1,200 $120,000
Geo. A Miller ......... | 1,200 120,000
J.G.Jomes ............ 1,200 120,000
J. M. Litehfield.... .... 1,200 120,000
J. GG. Riley.....c..... . 1,200 120,000
|

 

IN Witness WHEREOF, we have hereunto set
our hands and seals this ninth day of May,
A. D. 1878.

L. A. BOOTH, [sEAL.]
G. A. MILLER, [sEAL. ]
J. G. JAMES, [SEAL.
J, M. LITCHFIELD, [sEaL.
J. G. RILEY, [sEAL. |
. STATE OF CALIFORNIA,
City and County of San Francisco.

On the ninth day of May, A. D. one thousand
eight hundred and seventy-eight, before me, Louis
Franconi, a Notary Public in and for said
city and county, residing therein, duly com-

71

missioned and sworn, personally appeared L.
Booth, Geo. A. Miller, Bn Ines on
field, J. G. Riley, known to me to be the persons
whose names are subscribed to the annexed in-
strument, and they severally acknowledged to me
that they executed the same.

In Witness Wherror, I have hereunto sot my
hand and affixed my official seal, at my office, in
the City and County of San Francisco, the day
and year last above written.

[SEAL.] Louris Franconi, Notary Public.

OFFICE oF THE County CLERK, |)
City and County of San Francisco. | ii

I, William A. Stuart, County Clerk of the City
aud County of San Francisco, State of California
and ex-officio Clerk of the Superior Court there-
of, do hereby certify the foregoing to be a full,
true and correct copy of the Original Articles of
of Incorporation of the Unitep Lanp Associ-

arioy, filed in my office, on the 9th day of }
ADL ABI

WirNess my hand and the seal of said Court,
this 22d day of March, A. D. 1880.
WiLLiax A. Sruarr, Clerk.
By Jno. H. Mott, Deputy Clerk.

Dated May 9th, 1879.

[Endorsed :] Filed in the office of the County
Clerk, of the City and County of San Francisco,
this 9th day of May, 1878.

Taos. H. RevNoLps, Clerk.

By Jno. F. Farren, Deputy Clerk.

 

Nore.—This document is now appended to the brief for the first

time, but a certified copy of iti i i
I Pp} is on file with the papers in the In-

  

   
 

END

 

‘OF TITLE

 
 

"END OF REEL.
PLEASE

 

REWIND.