Personal reminiscences of early days in California, with other sketches

by Stephen J. Field; George C. Gorham

The spirit to invade other people's lands, to which the original decision gave increased force against the intention of its authors, could not be as easily repressed as it was raised in the crowd of adventurers, who filled the mining regions. Accordingly, long before I went on the bench, the right to dig for the precious metals on the lands of private individuals was stoutly asserted under an assumed license of the State. And afterwards, in the case of Biddle Boggs vs. The Merced Mining Co., which came before the court in 1859, where the plaintiff claimed under a patent of the United States, issued upon the confirmation of a Mexican grant, the existence of this license was earnestly maintained by parties having no connection with the government, nor any claim of title to the land. Its existence was, however, repudiated by the court, and speaking for it in that case I said: "There is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. The entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. Under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. What value would there be to a title in one man, with a right of invasion in the whole world? And what property would the owner possess in mineral land—the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products? There is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber, and occupy his land, under the pretence that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it."

At a later day the court took up the doctrine, that the precious metals belonged to the State by virtue of her sovereignty, and exploded it. The question arose in Moore vs. Smaw, reported in 17th California, and in disposing of it, speaking for the court, I said: "It is undoubtedly true that the United States held certain rights of sovereignty over the territory which is now embraced within the limits of California, only in trust for the future State, and that such rights at once vested in the new State upon her admission into the Union. But the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a State than that of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent State or Nation. Whatever rights are essential to the existence of this authority are rights of sovereignty. Thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. In this country, this authority is vested in the people, and is exercised through the joint action of their federal and State governments. To the federal government is delegated the exercise of certain rights or powers of sovereignty; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective States, or vested by them in their local governments. When we say, therefore, that a State of the Union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such authority is delegated to the federal government, or prohibited to the States; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the Constitution of the United States. To the existence of this political authority of the State—this qualified sovereignty, or to any part of it—the ownership of the minerals of gold and silver found within her limits is in no way essential. The minerals do not differ from the great mass of property, the ownership of which may be in the United States, or in individuals, without affecting in any respect the political jurisdiction of the State. They may be acquired by the State, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty."

And referring to the argument of counsel in the case in Plowden, I said that it would be a waste of time to show that the reasons there advanced in support of the right of the Crown to the mines could not avail to sustain any ownership of the State in them. The State takes no property by reason of "the excellency of the thing," and taxation furnishes all requisite means for the expenses of government. The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. But the exercise of this right does not require the ownership of the precious metals by the State, nor by the federal government, where this right is lodged under our system, as the experience of every day demonstrates.

I also held that, although under the Mexican law the gold and silver found in land did not pass with a grant of the land, a different result followed, under the common law, when a conveyance of land was made by an individual or by the government. By such conveyance everything passed in any way connected with the land, forming a portion of its soil or fixed to its surface.

The doctrine of the right of the State by virtue of her sovereignty to the mines of gold and silver perished with this decision. It was never afterwards seriously asserted. But for holding what now seems so obvious, the judges were then grossly maligned as acting in the interest of monopolists and land owners, to the injury of the laboring class.

The decisions, however, which caused for the time the greatest irritation, and excited the bitterest denunciation of the judges, related to the titles to land in the city of San Francisco, though in the end they proved to be of incalculable benefit. Upon the acquisition of California, there was a Mexican Pueblo upon the site of the city. The term pueblo is aptly translated by the English word town. It has all the vagueness of that term, and is equally applicable to a settlement of a few individuals at a particular place, or to a regularly organized municipality. The Pueblo of San Francisco was composed of a small population; but, as early as 1835, it was of sufficient importance to have an Ayuntamiento or Town Council, composed of alcaldes and other officers, for its government. At the time of our acquisition of the country it was under the government of alcaldes or justices of the peace. By the laws of Mexico, then in force, pueblos or towns, when once officially recognized as such by the appointment of municipal magistrates, became entitled to four square leagues of land, to be measured off and assigned to them by the officers of the government. Under these laws the city of San Francisco, as successor of the Mexican Pueblo, asserted a claim to such lands, to be measured off from the northern portion of the peninsula upon which the city is situated. And the alcaldes, assuming an authority similar to that possessed by alcaldes in other pueblos, exercised the power of distributing these municipal lands in small parcels to settlers for building, cultivation, and other uses.

When the forces of the United States took possession of the city, the alcaldes, holding under the Mexican government, were superseded by persons appointed by our military or naval officers having command of the place. With the increase of population which followed the discovery of gold, these magistrates were besieged by applicants for grants of land; and it was refreshing to see with what generous liberality they disposed of lots in the city—a liberality not infrequent when exercised with reference to other people's property. Lots, varying in size from fifty to one hundred varas square, (a measure nearly equal to our yard,) were given away as freely as they were asked, only a small fee to meet necessary charges for preparing and recording the transfers being demanded. Thus, for the lot occupied by the Lick House, and worth now nearly a million, only a few dollars, less I believe than twenty, were paid. And for the lot covered by the Grand Hotel, admitted to be now worth half a million, less than thirty-five dollars were paid.

The authority of the alcaldes to dispose of the lands was questioned by many of the new immigrants, and the validity of their grants denied. They asserted that the land was part of the public property of the United States. Many holding these views gave evidence of the earnestness of their convictions by immediately appropriating to themselves as much vacant land in the city as they could conveniently occupy. Disputes followed, as a matter of course, between claimants under the alcalde grants and those holding as settlers, which often gave rise to long and bitter litigation. The whole community was in fact divided between those who asserted the existence of a pueblo having a right to the lands mentioned, and the power of the alcaldes to make grants of them; and those who insisted that the land belonged to the United States.

Early in 1850, after the State government was organized, the Legislature incorporated the City of San Francisco; and, as is usual with municipal bodies not restrained by the most stringent provisions, it contracted more debts than its means warranted, and did not always make provision for their payment at maturity. Numerous suits, therefore, were instituted and judgments were recovered against the city. Executions followed, which were levied upon the lands claimed by her as successor of the pueblo. Where the occupants denied the title of the city, they were generally indifferent to the sales by the sheriff. Property of immense value, in some cases many acres in extent, was, in consequence, often struck off to bidders at a merely nominal price. Upon the deeds of the officer, suits in ejectment were instituted in great numbers; and thus questions as to the existence of the alleged pueblo, and whether, if existing, it had any right to land, and the nature of such right, if any, were brought before the lower courts; and, finally, in a test case—Hart vs. Burnett—they found their way to the Supreme Court of the State. In the meantime a large number of persons had become interested in these sales, aside from the occupants of the land, and the greatest anxiety was manifested as to the decision of the Court. Previous decisions on the questions involved were not consistent; nor had they met the entire approval of the profession, although, the opinion prevailed generally that a Mexican pueblo of some kind, owning or having an interest in lands, had existed on the site of the city upon the acquisition of the country, and that such lands, like other property of the city not used for public purposes, were vendible on execution.

In 1855, after the sale in respect to which the test case was made, the Council of the city passed "the Van Ness Ordinance," so called from the name of its author, the object of which was to settle and quiet, as far as practicable, the title of persons occupying land in the city. It relinquished and granted the right and interest of the city to lands within its corporate limits, as defined by the charter of 1851, with certain exceptions, to parties in the actual possession thereof, by themselves or tenants, on or before the first of January, 1855, if the possession were continued to the time of the introduction of the ordinance into the Common Council in June of that year; or, if interrupted by an intruder or trespasser, it had been or might be recovered by legal process. And it declared that, for the purposes of the act, all persons should be deemed in possession who held titles to land within the limits mentioned, by virtue of a grant made by the authorities of the pueblo, including alcaldes among them, before the 7th of July, 1846,—the day when the jurisdiction over the country is deemed to have passed from Mexico to the United States,—or by virtue of a grant subsequently made by those authorities, if the grant, or a material portion of it, had been entered in a proper book of record deposited in the office or custody of the recorder of the county of San Francisco on or before April 3d, 1850. This ordinance was approved by an act of the Legislature of the State in March, 1858, and the benefit of it and of the confirmatory act was claimed by the defendant in the test case.