 Oliver S. Witherby distinguished
himself as the first judge to
open the State District Court in San Diego |
OLIVER Spencer Witherby, one of the earliest American pioneers
in San Diego, arrived ín California shortly after the American conquest.
Throughout his life, Witherby played a major role in the early development of
his adopted city, initially distinguishing himself as the first judge to open
the State District Court in San Diego. As a prominent politician, land
speculator, and banker, he helped build San Diego from a small pueblo into a
growing city. As one of the richest men in the Southwest, Judge Witherby
possessed liberal views coupled with a pleasant and congenial personality. His
popularity stemmed from his generosity toward people and his easy-going life
style—a popularity which lasted long after his death.
Born in Cincinnati, Ohio, on February 19, 1815, Oliver
Spencer Witherby was the son of a prominent local preacher.1 In 1830 his father
moved to Oxford, Ohio where young Oliver entered Miami University and after
completing the full classical course graduated in 1836 with the degree of
Bachelor of Arts.2 During his college years, Witherby distinguished himself as a
member of Alpha Beta Pi honor society, and in 1838 delivered the annual address
to the student body of Miami University. The following year this institution
conferred upon Witherby the honorary degree of Master of Arts.3
Soon after his graduation from college, Witherby studied law
in Ohio under the guidance of a notable judge.4 Admitted to the bar in 1840, he
practiced law for three years prior to his election to the office of Prosecuting
Attorney for Butler County and was re-elected in 1845.5
Commissioned as a First Lieutenant of Company K, 2d Rifles
First Regiment of the Ohio Infantry at the outbreak of the War with Mexico,
Witherby left Cincinnati in May, 1846 for twelve months of
service in the Volunteer Army. Soon after his arrival in Comargo, Mexico,
Lieutenant Witherby suffered from a serious illness which resulted in the
resignation of his commission on August 31, 1846.6 Upon his return to Ohio, he
resumed his law practice and edited the county newspaper.
On January 16, 1849 President James K. Polk7 appointed John
B. Weller8 head of the United States Boundary Commission, with the task of
establishing a dividing line between California and Mexico. Weller knew
Witherby through the local bar and offered the young attorney the position of
quartermaster and commissary officer of the expedition. On June 1, 1849 the main
party finally arrived in San Diego after experiencing some difficulties en route
from Panama.9 Witherby spent his first night in California rolled up in a
"California Bank Note" in a hide house at La Playa.10
He performed his duties faithfully and did not
succumb to the gold fever as many of the commission members did after their
arrival in the golden state.
After completing his work with the Boundary Commission, Witherby decided to
make Old Town his home. Not long after his arrival, the
people of San Diego elected him their representative to the organizational
California Assembly in order to assist in forming the first state constitution
in 1849. At the convention, Witherby "was noted for being a modest but hard
working member and always voted right."11
The California Assembly appointed Witherby District Judge of
the newly created First District for a three year term.12 This judicial region
consisted of both Los Angeles and San Diego counties.13 Witherby earned a salary
of $7,500 and began to dispense justice throughout this immense area during a
time when common court occurrences included throwing inkwells and occasional
gunplay.14
On May 6, 1850 Judge Oliver S. Witherby convened the first
session of the State District Court in San Diego.15 Witherby alternated the seat
of the court, spending one month in San Diego and the next month in Los
Angeles.16 Traveling over the rough roads during the hot season provided not
only a difficult journey, but a dangerous one as well. Judges during this time
usually carried rifles or shotguns which often found their place in the
courtroom. Considering these adversities, Witherby's refusal to seek reelection
to another term as district judge in 1853 failed to evoke surprise.
Following his time on the bench, Witherby accepted the
appointment as Collector of Customs for the Port of San Diego and adjoining
counties from President Franklin Pierce in 1853,17 In addition to collecting
tariffs from the various ships, his duties included the selection of keepers and
assistants for the lighthouse located on Ballast Point.18
Although Judge Witherby received an annual salary of $3,000, this job did little to alleviate
the boredom of La Playa. A contemporary made this comment concerning the job of
Customs Collector:
Few customers appear, for with the exception of the mail
steamers once a fortnight, and the Goliah and Ohio, two little
coasting steamers that wheeze in and out once or twice a month, the calm waters
of San Diego Bay remain unruffled by keel or cutwater from one year's end to
another. Such a thing as a foreign bottom has never made appearance to gladden
the collector's heart. . .19
Witherby held this post for four years, resigning in 1857 due
to political difficulties.20
Judge Witherby wisely invested much of his salary in real
estate. Soon after his arrival in San Diego, he purchased land valued at
approximately $3,000.21 He submitted a petition to the City Land Commission in
order to buy pueblo lands22 and by 1853 owned 660 acres of Old Town property, in
addition to $13,000 in personal belongings.23 The following year Witherby sold
most of his land holdings, continuing to increase his fortune,24
In addition to his real estate ventures, Witherby played an
important part in the organization of the San Diego & Gila Southern Pacific
Railroad.25 This company sought to build a railroad from San Diego to the
Colorado River in order to connect with the lines building westward from Texas.
The organization received its charter on November 16, 1854, with Judge Witherby
as Vice President and a member of the Board of Directors.26 Upon his election as
President of the Railroad in 1858, the Judge diligently tried to raise money to
bring the railroad to San Diego, even donating over one hundred acres of his
personal estate to the company.27 Despite his efforts, this venture never
materialized for the Atchison, Topeka & Santa Fe Railroad bypassed San Diego for
Los Angeles and did not connect with San Diego until l885.28
Judge Witherby's involvement in civic affairs not only
included railroad and real estate activities, but local societies as well. He
often received honors from the populace. In 1852, he appeared as a guest at the
Battle of San Jacinto (Texas, 1836) anniversary celebration.29
Two years later Witherby became President of the New England Society despite his absence from
the initial meeting where the election took place.30 During the same year he
served on the Temecula Road Committee, working hard to obtain funds in order to
build a wagon road from San Diego to San Bernardino.31 In 1856 Witherby presided
as Chairman of the Public Debt Committee32 and by 1858 became an honorary member
of the San Diego Guards.33 Furthermore, in 1869 Witherby sat on the Board of
Trustees of the San Diego Agricultural Park Association.34 During his spare
moments, the judge relaxed by going deer hunting with some of his close
friends.35
In addition to these activities, Witherby found time to
engage in his legal profession, building up a good practice after his retirement
from the bench. The former judge accepted cases as defense counsel as well as
represented the plaintiff.36 One of Judge Witherby's more colorful clients was
Cave Johnson Couts.37 Witherby managed to have many indictments for murder
dismissed against this popular yet controversial San Diegan on technical
grounds.38
In 185539 during his term as Customs Collector, Judge
Witherby bought the 13,200 acre El Rincón del Diablo Rancho40
located about two miles southeast of the present town of Escondido, on the
road to San Pasqual.41 He paid $1,916.66 for this ranch and expanded
his land holdings in the Old Town and La Playa areas42
Witherby profitably engaged in stock raising and by 1860
his ranch supported 900 cattle, 110 horses, 9 mules, and 5 oxen43 The United
States Census Bureau in 1860 recorded the value of Witherby's real estate at
$6,000 while his personal property was listed at $10,000.44
The discovery of gold in Escondido soon after Judge Witherby
purchased this ranch, brought many miners to this area. Witherby's land proved
to be rich in both gold and quartz. By 1860 the judge had employed thirty
men to mine the gold, charging them one-fifth of their
profits.45 The mining operations expanded as heavy machinery assisted in the
drilling process. Witherby made several trips to San Francisco bringing gold
dust to the mint46 He also sent his quartz to San Francisco, since Southern
California contained no quartz mills at this early date.47 The quartz mined on
the Witherby estate proved to be of the richest quality in the state.48 Witherby
invested much of the profits from the gold and quartz mines in ranch
improvements and real estate.49
Witherby kept his ranch in good condition. He ordered
supplies from Old Town and even as far away as San Francisco.50 His ranch house
contained a library, beautiful furniture, and expensive jewelry. Despite all
this good fortune, Witherby became somewhat homesick, for in 1860 he offered to
sell his rancho, including the gold mine and cattle for $30,000, so he could go
back to Ohio.51 Although Judge Witherby did not leave San Diego, he sold his
Escondido property in 1868 for $8,00052 and took up residence at the corner of
Second and "D" Streets.53
Although no longer a member of the bench, Judge Witherby
played a dominant role in San Diego politics. He represented the township of San
Diego in 1855 as a member of the County Board of Supervisors.54 Reelected for
the following year55 Witherby served on the Board of Supervisors until 1858,56
when he ran for the office of County Public Administrator unopposed.57 He held
this position until 1867.58 The former judge also represented San
Diego County as a delegate to the Democratic State Convention in 1855.59
By 1869, Judge Witherby had advanced to the chairmanship of the Democratic Central Committee in
San Diego60 and attended the state convention as a delegate from this city.61 In
1871 he became a delegate from Old Town to the Democratic County Convention62
and the following year again served his party as chairman of the Democratic
Central Committee.63 Even as late as 1884 Judge Witherby was
considered a prominent man in San Diego politics.64
Besides being active in the political arena. Witherby
invested heavily in real estate after the sale of his ranch in 1868. By 1870 the
value of these land holdings stood at $5,000.65 Three years later they increased
to 675 acres of pueblo land in addition to four city blocks.66 Judge Witherby
possessed great faith in the future of New Town. When others sold out their
investments, discouraged at the prospect of the city's growth, Witherby held on
amassing his fortune.67
In addition to his real estate investments, Judge Witherby
became intimately involved in the establishment of the Commercial Bank of San
Diego, serving as a director for many years.68 When this financial institution,
located on the corner of Fifth and "G" Streets, merged with the Bank of San
Diego in January, 1880, the sixty-five year old O. S. Witherby became President
of the new Consolidated Bank of San Diego. Local residents looked upon both
Judge Witherby and the Consolidated Bank with favorable eyes for the San Diego Union reported:
It will be seen that our ever-present and genial friend, Judge O. S. Witherby,
has been placed at the head of that popular financial institution.69
In 1884 Judge Witherby again served as President of the Consolidated National
Bank and held a position on the Board of Directors.70
In his leisure time, Judge Witherby helped San Diego in many
diverse areas. In 1873, he donated eight rare plants to the county in order to
improve the landscape of the courthouse.71 The judge served as a manager of the
Art Loan Association in 187972 and as a charter member of the San Diego Gas
Company in 188173 When the first horse car ran down San Diego's Fifth Street on
July 4, 1886, Judge Witherby and some of his Old Town friends chartered the car,
and with plenty of watermelons for lunch, rode back and forth all day.74 This
soon developed into the judge's favorite pastime.75 In 1882 Witherby erected
three inexpensive cottages on Second Street, providing San Diego with some low
rent housing.76 During that same year he added on a large addition to his own
house,77 for in 1886 Witherby's nephew and spouse, came to live with him at his
Second and "D" Street cottage.78
In 1888 Judge Witherby retired from active business at the
age of seventy-three. His fortune, estimated at about half a million dollars
made him one of the richest men in the Southwest. Witherby used much of this
wealth toward the establishment of an Orphan's Home and Day Nursery located
where the United States Naval Hospital stands today.79 However, when the
financial panic of 1893 struck San Diego, Witherby lost most of his fortune,
since many of his assets consisted of stocks or real estate identified with the
bankrupt Consolidated National Bank of San Diego.80 Despite this calamity, the
judge showed only a nominal concern and continued his normal everyday life.
 The San Diego home of Judge Witherby at Second and D Streets |
Throughout his life, Judge Witherby maintained his congenial
and pleasant personality81 He never married saying that his only love proved
untrue to him.82 He enjoyed good times and often went to town "in his underwear
and drawers, so drunk he didn't know what he was doing."83 During his more sober
moments, Witherby would sit in front of his house, crosslegged in his red
flannel underclothes. The town children always managed to get a dime or some
loose change from the judge upon request.84 Witherby received visits from many
prominent people in San Diego including Doctor George McKinstry,85 who attended
to the judge's medical needs86 In his latter years, Witherby boarded the train
every Sunday morning for Old Town and sat around the deserted plaza admiring the
old adobe houses.87 It seemed to him that only yesterday the now busy commercial
city of San Diego had been only a small pueblo.
On February 19, 1896 Judge Witherby celebrated his
eighty-first birthday at a surprise dinner, given at his house along with eight
of his oldest friends. The San Diego Union described this festivity as
follows: "It was a gay party at the table and rare jokes were cracked."88
Ten months later, on December 18, 1896 Judge Oliver Witherby died a painless
death shortly after midnight. His death came both as a shock and surprise to all
since numerous people had seen the judge walking around only a few days before89
Many old pioneers attended the simple funeral services held at his cottage.90 On
December 21, 1896, Oliver Simpson Witherby received final burial services at
Mount Hope Cemetery. San Diego Lodge #153 of the Independent Order of Odd
Fellows, a secret fraternal benefit society in which Witherby served honorably,
conducted the ceremonies.91
In addition to his tombstone, many relics in San Diego
reflect the memory of this great man. A large oil painting, hanging in the
County Law Library of Judge Witherby sitting in the judicial chair, preserves
for San Diego the likeness of that city's first state judge.92 A street in
Mission Hills, extending from Guy to Pine also bears the name of this famous
rancher, banker, and politician.93 Many of the laws that Witherby first helped
make as a legislator, to interpret as a judge, and to expand as an advocate,
continue to this day as effective California laws.94 Perhaps a newspaper
account, written shortly after his death can best sum up the life of this
dynamic yet simple San Diego pioneer:
While a great portion of his life he was possessed of great
wealth he never made any display thereof, but preferred in a quiet modest way to
give his great fortune to be devoted to charitable purposes.95
NOTES
1. Oliver S. Witherby had four brothers and one sister
whose names were: John K. Witherby, Luther Witherby, Warren W. Witherby,
Thomas B. Witherby, and Phila Pomeroy. Only Oliver came to California. The
rest of the family remained in Ohio.
2. Mr. J. C. Symmes purchased the 1,000,000 acre campus of
Miami University in 1788 from the United States Government. Although
incorporated in 1809, Miami University did not open its collegiate department
until 1824. One of the distinguished alumni of this institution was President
Benjamin Harrison who graduated in 1852.
3. Harr Wagner, "Builders of the West — Judge O. S.
Witherby," The Golden Era, XXXIX (June, 1890), page 666.
4. Witherby studied law in Hamilton County, Ohio in the
office of the Honorable John Wood, the leader of the bar in this county.
5. The History and Biographical Cyclopaedia of Butler County, 1882, page 260.
6. Letter from First Lieutenant O. S. Witherby to
Lieutenant Colonel A. M. Mitchell dated August 31, 1846 in Comargo, Mexico.
Found in the Witherby File, Military Service Records (NNCC), National Archives
(GSA) in Washington, D.C.
7. James Knox Polk (1795-1849) served as the eleventh
President of the United States from 1845-1849. An ardent Democrat, Polk
favored war with Mexico. After the war, he appointed a commission to draw the
boundary between the newly acquired land of California and Mexico, only a few
months before the new Whig president, Zachary Taylor, took office.
8. John B. Weller was Polk's third choice as United States
Boundary Commissioner. Weller served as a judge in Ohio as well as a
Democratic congressman from this state. He also ran unsuccessfully for the
office of governor of Ohio. After his work with the Boundary Commission was
finished Weller was elected Senator from California in 1852 and served one
term as governor of this state from 1858 to 1860. Witherby remained a loyal
friend and supported Weller in various political elections.
9. Weller left New York City on February 28, 1849 bound for
Panama. He made the fatal mistake of not booking transportation for California
in advance, which resulted in the impediment of the expedition in Panama due
to the influx of four thousand gold seekers who also wished to make the same
journey to the golden state. For an interesting account of the many problems
which besieged the Boundary Commission both in Panama and in California see
Thomas L. Scharf, Amiel Weeks Whipple: Boundary and Railroad Surveys in the
Southwest, 1849-1854, University of San Diego Thesis, 1973, pages 23-27.
Ed Scott's San Diego County Soldier-Pioneers 1846-1866 (San Diego:
County of San Diego, 1976), pages 21-26 gives a good account of the politics
involved in this expedition.
10.Wagner, "Builders of the West," page 667. A "California
Bank Note" was the nickname given to a dried steer hide by the Californians.
Since little cash was used, these hides became the principal means of exchange
by the Californians with the Yankee trading ships for wearing apparel and
other manufactured necessities.
11. Wagner, "Builders of the West," page 667.
12. Leland Stanford in San Diego's Legal Lore and the
Bar: A History of Law and Justice in San Diego County (San Diego: San
Diego County Bar Association, 1968), on page 79 stated that his appointment as
district judge could be considered an honor and that this was a "no-contest
appointment."
13. On March 16, 1850 the State Assembly divided California
into nine judicial districts. Los Angeles and San Diego Counties were much
larger in 1850 than today. The northern boundary extended up to Monterey Bay
and included the present Los Angeles, San Diego, Riverside, San Bernardino,
and Imperial Counties.
14. Leland G. Stanford, Footprints of justice in San
Diego (San Diego: San Diego County Law Library, 1960), page 19.
15.Record of the District Court, First District, page 1.
Found on microfilm in the basement of the San Diego County Court House.
16. The November 27, 1851 issue of the San Diego Herald
stated, "Judge Oliver S. Witherby will hold next term of district court in
Los Angeles." The January 10, 1852 publication of this paper lists the
district court terms as follows:
| LOS ANGELES |
SAN DIEGO |
| 2nd Monday of February |
3rd Monday of March |
| 1st Monday of June |
1st Monday of July |
| 1st Monday of October |
1st Monday of November |
17. Franklin Pierce (1804-1869) served one term as
President of the United States from 1853 to 1857. Both he and Witherby were
Democrats, but it is not known whether Pierce from New Hampshire ever knew
Witherby personally.
18. Winifred Davidson, Loma Lore, unpublished, 1924,
page 241. San Diego Historical Society Library and Manuscripts Collection
(hereinafter referred to as SDHS Library).
19. John Phoenix, pseudonym [Captain George Horatio Derby,
United States Army], Phoenixianna; or Sketches and Burlesques (New
York: D. Appleton and Company, 1856), page 201-202. Derby provides a comical
sketch of the few wretched buildings at La Playa as well as describing
Witherby as one who silently "sits at the receipt of customs."
20. The San Diego Herald on May 16, 1857 reported
that Witherby was replaced as Customs Collector because he supported the
Honorable J. B. Weller instead of Senator Broderick. Broderick won the
election in spite of San Diego's support for Weller, and took his revenge on
San Diego by securing the appointment of an out-of-town Democrat. At the
expiration of his term, Witherby turned $3,000 over to the government.
21.The Seventh United States Census taken on February 28,
1850, Witherby at age thirty-five is listed as a "lawyer" by profession.
22. Application for Grant of Townland of O. S.
Witherby, et al. and the approval of the deed found in Deed Book "B" pages
110-113 on microfilm in basement in the office of the San Diego County
Recorder.
23. The assessment of O. S. Witherby for 1853 shows that
the judge owned the following:
PERSONAL PROPERTY
| Notes |
$9,891.75 |
| S. D. County Warrants |
$8,028.99 |
| Value in cash |
$2,676.33 |
| Buggy |
$100.00 |
| 3 Horses |
$120.00 |
| Books, Watch. |
$100.00 |
| $13,020.08 |
REAL ESTATE
| Lot 18, |
160 acres |
Old Town |
| Lot 20, |
160 acres |
Old Town |
| Lot 23, |
160 acres |
Old Town |
| Part of Lot 2, |
40 acres |
Old Town |
| containing rout |
20 acres |
|
| Part of Lot 3, |
40 acres |
Old Town |
| containing rout |
20 acres |
|
| Undivided 1/11 of Lot 1, |
40 acres |
|
| Lot 19, |
20 acres |
Old Town |
24. A letter from W. M. Ryner, M.D., San Francisco to E. W.
Morse in San Diego, dated October 2, 1872 stated: "On the 24th day of April
1854 Oliver S. Witherby sold to Frederick Ryner the South West - half of Lot
No. 1."
The 1854 assessment of O. S. Witherby shows that although
he only owned sixty acres of land, his personal property far exceeded his real
property. The assessment reads as follows:
VALUE
| North 1/2 of 40 acres Lot 1 |
$500.00 |
| 20 acres lot 19 |
$500.00 |
| One Horse |
$80.00 |
| One Wagon |
$200.00 |
| Household Furniture |
$50.00 |
| San Diego County Script in amt. $8497.85 |
$2835.61 |
| San Diego City Script in amt. $900 |
$900.00 |
| Money at Interest |
$3995.00 |
| Solvent Debts |
$3946.00 |
| TOTAL: $13904.61 |
25. The May 21,1853 edition of the San Diego Herald
listed Witherby as a member of the committee to study routes for the railroad.
26. Witherby stayed on as Vice-President from 1854 to 1856.
See the following issues of the San Diego Herald: November 18,1854,
October 6,1855, and June 7,1856.
27. William E. Smythe in History of San Diego on
page 401 stated: "Judge Witherby contributed 120 acres—19 lots to the
subsidy in cash, notes and land for the Railroad to be brought to San Diego."
See Deed Book 12, pages 125-6, February 1, 1871; Deed Book 36, pages 8-12,
August 12, 1880 and Deed Book 37, pages 91-97, July 23, 1880.
On July 7, 1869 the San Diego Union showed Witherby
as a member of the committee to solicit land gifts for the railroad to
terminate in San Diego. This newspaper included the judge as a director for
the years 1868 and 1869.
28. Even though the Atchison, Topeka & Santa Fe Railroad
finally connected with San Diego on November 19,1885, the line only lasted to
the winter of 1890-1891, when it was washed out, never to be rebuilt. Not
until 1919 did the San Diego & Arizona Eastern Railway complete its line to San Diego.
29. San Diego Herald, April 14, 1852.
30. San Diego Herald, November 25, 1854. Witherby
qualified for membership in this society because his parents were born in Maine.
31. San Diego Herald, April 22, 1854.
32. San Diego Herald, December 27,1856.
33. San Diego Herald, January 30,1858.
34. San Diego Union, October 27,1869.
35. The October 22, 1853 issue of the San Diego Herald
reports that Witherby and his friends, W. C. Ferrell, Lieutenant
Patterson, and Eugene Pendleton killed ten deer and shot some quail, geese, and rabbits.
36. Some of the cases that Witherby participated in are:
For the defendant in Moon vs. Hooff.
San Diego Herald, August 24, 1853.
For the defense of Juan Carrillo, alias John Hewitt.
San Diego Herald, September 10,1853.
For plaintiff along with Colonel William C. Ferrell in D. B. Kurtz vs. Rose, Lyons and
Morse, as trustees of the City of San Diego.
San Diego Herald, January 7,1854.
For plaintiff along with Robinson
in Francis Stone vs. McKinstry, et al.
San Diego Herald, April 26,1856.
For defendant in State of California vs. William H. Leroy.
San Diego Herald, June 16, 1859.
37. Cave Johnson Couts (1821-1874) born near Springfield,
Tennessee, graduated from West Point in 1843 and served on the frontier until
after the Mexican War. Arriving in San Diego in 1851 he married Isidora
Bandini and resigned from the Army. Later he was appointed Colonel and
Aide-de-Camp to Governor Bixler. He received his wealth through marriage and
by good management of his business affairs and became one of the richest men
in Southern California. He resided on Rancho Guajome. Couts shot several men
for allegedly "fooling around with his daughters." For a short biography of
this interesting character see William E. Smythe, History of San Diego,
pages 268-269 or Ed Scott, San Diego County Soldier-Pioneers, page 15.
38. Richard F. Pourade in The History of San Diego: The
Silver Dons (San Diego: The Union-Tribune Publishing Company), 1963, page
255 stated that in 1865 Cave Couts was indicted for murder in a controversy
concerning landholders and squatters. O. S. Witherby acting as Couts' defense
attorney managed to have the indictment dismissed on the grounds that the
district attorney had not posted his bond of office.
39. Many secondary sources including Wagner, "Builders of
the West," Smythe, History of San Diego and R. W. Brackett, The
History of San Diego County Ranchos: The Spanish, Mexican and American
Occupation of San Diego and the Story of the Ownership of Land Grants therein
(San Diego: Union-Tribune Publishing Company), 1960, report that Witherby
bought El Rincón del Diablo in 1857. Deed Book 1, pages 15-17 indicate that
Witherby began to buy out the owners of this property on October 15, 1855 and
December 18, 1855. Deed Book 1, pages 127-8 showed that the judge bought out
the last owner on January 23, 1857.
40. El Rincón del Diablo Rancho meaning "Devil's Corner or Lurking Place"
was originally a grant given to Juan Bautista Alvarado (not
the governor of California) by Governor Manuel Micheltorena in 1843. This land
belonged to the San Diego Mission prior to secularization. The brand of the
rancho wasδ. For more information concerning this ranch see R. W.
Brackett, The History of San Diego County Ranchos, and Richard F.
Pourade, Historic Ranchos of San Diego (San Diego: Union-Tribune
Publishing Company, 1969).
41. In addition to the 13,200 acres Escondido Ranch, the
assessments for 1856, 1858, 1859, 1862, and 1867 (the missing years'
assessments are not available) showed that Witherby owned 1/4 of the San
Marcos Ranch (2,200 acres) lócated in the San Luis Rey township. Witherby
purchased this property on November 21, 1856 at a Sheriffs sale. See Deed Book 1, pages 110-111.
42. Besides his ranch property the 1856 assessment indicates that Witherby
owned the following real estate:
| LOT |
BLOCK |
WHERE
SITUATED |
ACRES |
| 5 |
136 |
La Playa |
|
| 6 |
136 |
La Playa |
|
| 7 |
136 |
La Playa |
|
| 8 |
136 |
La Playa |
|
| 1/2 of 224 |
|
Old Town |
40 |
| 1/2 of 223 |
|
Old Town |
40 |
| 200 |
|
Old Town |
160 |
| 201 |
|
Old Town |
160 |
| 202 |
|
Old Town |
160 |
| 196 |
|
Old Town |
160 |
43. This information is taken from the 1860 assessment of
Witherby's personal property. The 1862 assessment showed that Witherby
expanded his stock to 135 horses, 1278 cattle, 14 mules, and 4 oxen.
44. It is interesting to note that the United States Census
Bureau in 1860 recorded the occupation of Oliver S. Witherby as "stock raiser"
and not "lawyer."
45. Gale W. Sheldon, Julian Gold Mining Days, San
Diego State College Thesis, August 1959, page 9. See also Case #93, Box 15026,
First District Court: O. S. Witherby vs. William S. Morrow, Morris S.
Goodman, John Turner and N. A. Potter (Bertha Mining Co.) for
more details concerning mining leases at the Rancho. This case can be found at
the San Diego County Records Center
46. In a letter to Mr. Ames dated April 10, [1860 or 1861] O. S. Witherby said
I send you 81/4 ounces of gold
dust. Keep it for me. If I
should not be in [to San Francisco
on the] next Steamer Send it Rai
Mona [sic] to be sent to the Mint.
47. Sheldon, Julian Gold Mining Days, page 9. A
letter from Thomas Whaley to Augustus Ensworth dated September 7, 1860 stated
that "Two tons of Witherby's quartz go up on the boat!."
48. Benjamin Hayes, Pioneer Notes from the Diaries of
Judge Benjamin Hayes, edited by Marjorie Tisdale Wolcott, (Los Angeles:
Privately Published, 1929), May 23, 1860 entry in diary, found on page 206.
49. The assessment of 1860 showed that Witherby spent $400
on improvements on his Escondido Ranch. The 1862 assessment revealed $250
spent on improvements to El Rincón del Diablo Rancho and $1675 in improvements
to the San Marcos Ranch.
In 1859 Witherby owned 655 acres of real estate and 51/5
city blocks in addition to his ranch property. By 1860 after the expansion of
the gold mining operations. Witherby's real estate increased to 745 acres.
50. A letter from O. S. Witherby in Escondido to William
Robinson, a general store owner in Old Town, May 20, 1861 said: "Please send
me by the bearer Mr. Geo Reed a pair of shoes NO 9 and charge to my act."
Also a letter to Mr. Ames on May 20, 1861 from Witherby
stated: "I wish you would bring down with you from San Francisco a 'can of
phosphorous' and a half dozen good silk ahay [?]. . ."
51. Hayes, Pioneer Notes, May 20, 1860, page 204.
52. Pourade, Historic Ranchos of San Diego, page 44.
Witherby sold the ranch to Edward McGeary and the three Wolfskill brothers,
Matthew, John and Josiah.
Although Witherby sold his ranch land, he still possessed
585 acres of pueblo land along with three city blocks. The judge retained some
of his cattle, leasing them to a rancher in the Los Angeles vicinity. This
later caused Witherby some legal problems due to the dishonesty of this
rancher. See the California Supreme Court Case in 1878 of O. S. Witherby vs. Charles Thomas.
53.Winifred Davidson, "1931 Notes," SDHS Library. His
cottage was located on the Northeast corner of this intersection. "D" Street
is the present day Broadway. The Witherby home stood at this location until
1912 when the United States National Bank was erected over this area.
54. Judge Witherby received thirteen more votes than his
Republican opponent, J. J. Warner. See the San Diego Herald, June 30,
1855. William E. Smythe in History of San Diego, Volume 2, page 723,
surprisingly lists both Witherby and Warner as members of the Board of
Supervisors in 1855.
55. San Diego Herald, May 3,1856.
56. The September 4, 1858 edition of the San Diego
Herald indicated that Witherby ran for the office of County Supervisor,
San Diego Precinct, again but lost. The results were as follows:
| O. S. Witherby: |
7 votes |
| R. E. Doyle: |
54 votes |
| J. Donohoe: |
6 votes |
The minutes of the San Diego Board of Supervisors indicated that Witherby
served as Chairman of this Board from September 12,1857 to September 10, 1858.
57. It is interesting to note that the San Diego Herald
on September 12,1857 reported that Judge Witherby tied with Lewis Rose for
the office of Public Administrator on September 2,1857. Nevertheless, the
September 4,1858 issue of the San Diego Herald showed Witherby running
unopposed for the Public Administrator office and receiving 53 votes.
58. On September 10, 1859 the San Diego Herald again
reported Witherby elected unopposed for Public Administrator, this time with
81 votes. An anonymously written book entitled, History of San Diego
County, California with Illustrations, Descriptive of its Scenery, Farms,
Residences, Public Buildings, Factories, Hotels, Business Houses, Schools,
Churches and Mines, from Original Drawings, with Biographical Sketches
(San Francisco: Wallace W. Elliot & Company, 1883), page 132, listed O. S.
Witherby as San Diego County Administrator for the years 1862-1867.
59. The June 23, 1855 issue of the San Diego Herald
showed Witherby as one of the two delegates elected unanimously by the
Democrats of San Diego County.
60. Cave J. Couts in the August 4, 1869 publication of the
San Diego Union accused Witherby of abusing his power as Chairman.
Couts asserted that Witherby appointed delegates instead of having them
elected, causing the party to split.
61. San Diego Union, August 11,1869.
62. San Diego Union, July 27, 1871.
63. San Diego Union, June 9,1872.
64. There is an unusual remark recorded in the San Diego
Union on June 27, 1884 concerning Judge Witherby's loyalty to the
Democratic Party. His loyalty was questioned because he wore an "immense
Blaine and Logan [Republican] hat."
65. Ninth United States Census Population Schedules of San
Diego County, 1870. The Census Bureau recorded Witherby's occupation as "lawyer."
66. Official State and County Assessment of Real Estate for
O. S. Witherby, April 26, 1873.
67. T. S. Van Dyke, The City and County of San Diego:
Illustrated, and Containing Biographical Sketches of Prominent Men and
Pioneers (San Diego: Leberthon & Taylor, 1888), page92.
68. The San Diego Union listed O. S. Witherby as one
of the Directors of the Commercial Bank of San Diego in its March 18, 1873 and
January 1, 1879 issues.
69. San Diego Union, January 4, 1880. The Tenth
United States Census taken in 1880 recorded Oliver Witherby's occupation as
"bank president."
70. San Diego Union, July 1, 1884.
71. San Diego Union, September 3, 1873.
72. San Diego Union, February 11, 1879.
73. Smythe, History of San Diego, Volume 2, page
435. This company was organized in March, 1881.
74. Winifred Davidson, San Diego Tribune, May 31, 1931.
75. Wagner, "Builders of the West," page 667. The San
Diego Union, on July 2, 1885 reported that Witherby purchased a roadster
"that has a record of 2:22."
76. The January 19, 1882 edition of the San Diego Union
stated: ". . . this is the kind of buildings specially needed here. Cheap
tenement houses are scarce."
77. San Diego Union, February 1, 1882.
78. San Diego Union, February 20, 1896. The Judge's
nephew's name was John G. Witherby.
79. Herbert C. Hensley, The Memoirs of Herbert C.
Hensley: The History of San Diego, City, County and Region, through the
Memories, Anecdotes, and Recollections of the Author, Compiled and noted by
Him over a Period of Three Years, 1949-1952, Volume 5. Unpublished,
page 685, SDHS Library.
80. Winifred Davidson, "1931 Notes," SDHS Library. The
Panic of 1893 was the most severe depression that the United States had
suffered up to that time. About eight thousand American businesses collapsed
in six months and unemployment was widespread. The depression lasted about four years.
81. Judge Hayes, who visited Witherby at his Escondido
Ranch described Judge Witherby as "A sociable host; . . . is comfortable and
free and easy." Hayes, Pioneer Notes, May 26, 1860, page 206.
82. Winifred Davidson, "1931 Notes," Interview with Lucy
Wentworth on February 9, 1931, SDHS Library.
83. Winifred Davidson, "1931 Notes," John and Winifred
Davidson interview with Andrew Lyons, SDHS Library.
84. Winifred Davidson, "1931 Notes." Interview with Lucy Wentworth, SDHS Library.
85. Dr. George McKinstry served California as the first
Sheriff of the Northern District in 1846, before the American Occupation. He
was in charge of the rescue party that aided the tragic Donner Party.
McKinstry was responsible for sending the Diary of Patrick Breen to the United
States Government. He lived in San Diego from 1858 to 1882. For more
information concerning the McKinstry diaries see "Documents of San Diego
History—The Diaries of George McKinstry, Jr., Times Gone By: The Journal of
San Diego History, IX (Summer, 1965), pages 37-39.
86. McKinstry was a good friend of Witherby. The doctor mentions the many
visits both social and medical he made to Witherby's house in his
diaries (1858-1879) on file at SDHS Library.
87. San Diego Union, February 20, 1896.
88. San Diego Union, February 20, 1896. This article
also listed Witherby as the oldest American pioneer in San Diego with the
exception of "Don Felipe Crosthwaite who landed at Old Town in 1846 and. . .
George Lyons who came here in 1847 or 1848."
89. San Diego Union, December 18, 1896. The obituary
covered two columns in the paper with the heading: "Judge Witherby Dead,
Passing Away of San Diego's Best Pioneer:. . . a Long and Eventful Career,
Full of Honor and Sterling Qualities That Won Respect."
90. San Diego Union, December 21,1896.
91. Mr. Simon Manasse reported to Edgar F. Hastings on
October 1, 1957 that Judge Witherby was so poor at the time of his death that
"they took the gold teeth out of his mouth to pay for the funeral." This
report, found in the Serra Museum is dubious at best. William T. McNealy, the
attorney handling the Witherby case ordered the Judge's personal property to
be sold at public auction in order to pay for the funeral expenses. The large
granite gravestone alone cost $500. Witherby left his local lodge of I.O.O.F.
$125 in gold and in return the Lodge promised to maintain the grave site.
After all the debts were paid $224.96 was left to a friend in Arizona. For
more details concerning the Witherby estate see Case #1556, Superior Court of
the County of San Diego, Department 2, Estate of O. S. Witherby, deceased,
filed November 27, 1897. Found on microfilm in the basement of the San
Diego County ClerK's Office.
92. This 4' X 5' portrait was painted in 1885 by Dr. Winder
and first displayed at Schneider's book store. Since then it has hung on the
wall of the old Broadway Courthouse until this structure was demolished in
1959. The picture presently hangs on the second floor of the County Law
Library. For an interesting history concerning this portrait see Stanford,
San Diego's L.L.B., pages 155-157.
93. Witherby Street once was the name of a road on the
south side of Horton Plaza. See "Notes of John Davidson," written for the
San Diego Evening Tribune, October 29, 1937, SDHS Library.
94. Stanford, San Diego's L.L.B., page 67.
95. San Diego Union, January 3, 1897
