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The Journal of San Diego History
SAN DIEGO HISTORICAL SOCIETY QUARTERLY
Winter 1971, Volume 17, Number 1
Linda Freischlag, Editor

By Richard C. Martin

Images from the Article

The following article, “Cuyamaca Land Grant Trial,” by Richard C. Martin, was one of the winning papers chosen at the Third Annual Institute of History, sponsored by the San Diego History Center. By drawing attention to subjects of local history that need exploration and research, the Institute provides an outlet for well researched papers such as this one. By offering guidance and recognition to deserving non-professional writers, the Institute strives to encourage the writing of history on the local level and to present the papers?through the Society’s library and Journal?to the interested public.

While driving through the apparently sedate Cuyamaca Rancho State Park today, it is hard to visualize that just over a hundred years ago, a very complex and elongated dispute erupted concerning the actual boundaries of this Rancho. It was a dispute which involved land speculators, miners, and the townspeople of San Diego. The dispute revolved around the northern boundaries of the 35,000 acre Rancho, where gold was discovered on Washington’s Birthday, 1870. The land owners of the Rancho claimed that the land on which the mines existed rightfully belonged to them, while at the same time the miners and citizens of Julian claimed the land was public.

Prior to the Mexican Cession of 1848, the Spanish governor of California was Pio Pico. It seems evident that he was aware that California was soon to become a part of the United States. In the years before the Cession, he had begun to freely distribute lands to relatives and close friends. One of these land grants was the Cuyamaca Grant. The petitioner was Augustin Olvera and the date was June 5, 1845. Olvera was, at that time, the Secretary of the Departmental Assembly and husband of the niece of the governor, Pio Pico. Although he had never set foot in the Cuyamaca area, Olvera deemed that this area would bolster his land holdings, the land being quite rich with timber and having excellent grazing areas.

On August 11, 1845, Pico granted Olvera the land, mentioning no boundaries, but stipulating the following conditions. The first gave Olvera the right to fence in the area without regard to roads or rights of way. The second pertained to the local judge who had the power of granting juridicial possession. This judge would mark the boundaries and confirm the landmarks shown by the prospective owner. The third stipulation was centered upon the condition that the judge would then determine the area involved and draw a diseno or map to be forwarded to the government with notice as to the number of square leagues it contained.1

The following spring, Olvera, Don Santiago Arguello, and an Indian from the San Diego Mission rode out to take possession of the Grant and comply with the law. The Indian pointed out the known landmark of the Cuyamaca area and Olvera made a rough pencil sketch with the different physical characteristics marked on it. In order to give juridicial possession, the judge would have to ride out with Olvera and see that everything was confirmed before he sent the boundaries, area, and map to the government. However, Jose A. Estudillo, the San Diego Justice of the Peace at this time, was unable to make the trip because of continual rains. By conferring with the people who were familiar with the area, Estudillo confirmed Olvera’s map. He reported that Cuyamaca was valid as shown on the map and that it measured eight square leagues.2 Estudillo noted that the Grant would be remeasured as soon as the weather permitted, but there is no evidence that this was ever done.

In 1848, California became a part of the United States and in accordance with the Treaty of Guadalupe Hidalgo, which stated that all former land grants must be examined by a land commission to determine whether they were valid or not, Olvera submitted his claim. In 1850 the land commission rejected Olvera’s claim because there was insufficient evidence to support it. There was no map submitted, no limits or boundaries indicated, and there was no description of any kind to show in what part of San Diego County the Rancho was located. Therefore the commission determined that Olvera had not complied with Mexican law.3 Olvera then appealed to the U.S. District Court for the Southern District of California. In 1858 the former decision was rejected, for a map had been produced which proved that such a claim was valid. The United States appealed this decision to the Land Office in Washington, where it was neglected for a length of time. The appeal was dropped and the Grant confirmed.4

Finally, in 1869, Olvera sold the land to various people. He gave one-third to Isaac Hartman in April, 1869, for legal services that he had rendered. In July, 1869, Olvera sold the remaining two-thirds to Samual Stewart for twenty thousand dollars. Stewart in turn sold one-half of the two-thirds to Allison for eleven thousand dollars and one-fourth to John Treat for six thousand dollars. He later sold the remaining one-fourth to Allison and Luco jointly for five thousand dollars.

The following year gold was discovered in the Julian area just north of Cuyamaca. The owners of the Cuyamaca Grant claimed that their northern boundaries stretched over into this area and consequently they demanded royalties from these mines or the right to shut them down if they did not comply.5 As a result of this action one of the most interesting trials in the history of San Diego occurred.

The intentions of the Grant holders first came to public attention in May of 1870. The San Diego Union Weekly vehemently stated that these claimants were land grabbers waiting for the miners to do all the work. In the early part of June a meeting was called to organize a “ways and means” for the miners to protect their rights. The chairman of this meeting, A. Pauly, ordered a meeting where the citizens and miners could act in harmony and present a firm resistance to an illegal attempt to float the Grant beyond its limits. There was a request to “stay within the law”?a request which became the dominant theme throughout the case. Other speakers gave their views on the conditions surrounding the dispute over the Grant. There was reference made to a letter introduced by the claimants, which, written in 1846 by Jose J. Ortega, claimed that the Cuyamaca area bordered around, or was in the vicinity of, the Santa Ysabel Rancho.6 This included the Julian area and the mining properties which were being contested. The importance of the mines to the development of the city was stressed and an appeal to, give material support as well as sympathy was made. One interesting aspect was brought up by one of the speakers. He claimed that the best policy the Grant holders could follow would be to let the miners continue, for this would enhance the value of the adjoining lands. It would be in their best interest to refrain from repressive tactics, as mining activities would not deplete the natural resources available to them. Five main resolutions came out of this meeting: (1) all honorable means would be used to settle the dispute, (2) two persons were selected to confer with the Julian miners about the case and material support, (3) the persons appointed would discuss plans and funds necessary for the dispute, (4) the demands for the claimants should not be accepted, (5) the agreed upon resolutions would be printed in the Union Weekly Bulletin.

As can be seen, the city of San Diego fully supported the miners. They could see what an asset the mines would be for the city and how trade with them would bring prosperity to the town. The San Diego Union was the spokesman for the town. This is well illustrated by the evidence of the reporting of the procedures in relation to the claimants.

On the ninth of June, Pascoe, a surveyor, ran lines of the Grant in accordance with the demands of the claimants.7 In this survey the mines did come within the northern boundaries of the Grant. This was what the miners and citizens of San Diego were concerned about along with the editorial writers of the newspaper. Pertaining to the Washington Land Office’s neglect to reject the claim at an earlier date, the paper comments: “However like Banquo’s ghost, it was doomed to rise again and demand a vindication of the `foul’ act which had consigned it to the charnel house of oblivion.”8 This was aimed at Hartman, the lawyer for the claimants, for being able to file the claim with the new boundaries. The paper did state that if the Grant was justified they would not oppose it. However, their true feelings became apparent in the concluding paragraph, “We are opposed to land grabbers and to all land grabbing enterprises. They have been too many and too successful. The men engaged in them are no friends of the people, on the contrary they retard progress, crush out industry, and drive the worthy poor men from the country. Or if, perchance, progress goes on, and industry thrives in spite of them, then they become parasites growing fat off the life blood of the community.”9

On the twenty-third of June, another mass meeting took place at Horton’s Hall. At this meeting it was brought out that if Pascoe had followed the right intersections he would not have come within five miles of the mines. Again a cry for the support of the miners arose! There were some people who were still apprehensive, however, and they wanted to make sure that the miners spoke to Pascoe about the points they had against the Grant. They wanted to see a more practical method adopted before they assisted in contesting the Grant; and they wanted some definite and reasonable plan before giving their money to any cause. The appeal was again made to the effect of how beneficial the mines would be for the town.

On the first of July the miners gathered at a mass meeting in Julian to organize themselves against the grant holders. Two representatives from the city of San Diego were there and they assured the miners of the sympathy of the townspeople. A committee was organized to raise funds to contest the Grant and a joint committee with the citizens of San Diego was formed. They decided the mines would have to be assessed and attorneys employed.

At the end of the month another survey was conducted by C. J. Fox. This survey was run in accordance with the old diseno along with the testimony of all the old residents of that section of the county. This survey conclusively showed that the mining district laid not less than five miles north of the extreme northern limit of the Grant as shown in the diseno. This survey, plus a detailed survey of the land from the Mexican boundary line to the Santa Ysabel Rancho, run in accordance with railroad details as well as the testimony of others, were forwarded to the Surveyor-General, Sherman Day, in San Francisco.10

From August, 1870 to April, 1871, the case was before the Surveyor-General. Meanwhile the San Diego Union questioned the validity of the Grant. “It is public land. . . . The offices of the U.S. should see that the government is not cheated out of them by this stupendous fraud.”11 Finally on April 15, 1871, Hardenburgh, the new Surveyor-General, rejected Pascoe’s survey. Now the case had to go before the General Land Office in Washington, D.C. The mines reopened upon hearing the decision and the newspaper again stressed how important these mining interests were for the city.

The case remained in Washington until August, 1872, when the Commissioner, Willis Drummond, sent the papers back and a rehearing was ordered. The claimants filed a suit for (1) want of sufficient notice and (2) unfair evidence provided by ex parte affidavits. While waiting for some action from the Commissioner in Washington, the newspaper dwelt on the slow process and how it was adversely affecting the prosperity of the entire community. The editorials hoped for a speedy decision. In a later issue it was brought to public attention that San Diego’s perennial water supply was located within the Grant and the danger of the land grabbers obtaining that supply spelled disaster for the city.

Meanwhile at Julian, the miners were still trying to find the means of raising the funds to cover the cost of the contest. They finally resolved that each miner and settler would pay one dollar a month. The editorial page began to attack the handling of the trial and push for the rejection of the lawyer that represented them, St. Clair Denver, who, in their opinion, was not doing an adequate job. “We repeat that the sooner the miners and settlers get rid of Denver, the better for them. There has been altogether too much trifling in the management of this important case.”12 The paper began endorsing Senator Houghton, who had been closely following the progress of the case. The paper later claimed that had it not been for Houghton, the miners would have lost. The paper also stated that the only evidence presented to the Commission was Pascoe’s survey. The survey would have been approved had not Houghton called at the Land Office and requested that the Commissioner make an investigation which resulted in the return of the papers to the Surveyor-General in San Francisco. This story was obviously biased, yet it does show clearly the impatience of the press and the public in the settling of this issue.13

At long last, proceedings started again and people were contacted for the giving of their depositions.14 In December of 1872, there was notice that Hardenburgh was coming to pay a personal visit to Cuyamaca to view the disputed locations. The San Diego Union felt confident that the miners had everything on their side: “There is not a particle of doubt that a thorough examination of this Cuyamaca Grant matter must result in establishing beyond question the rights of the miners and settlers.”15

In March, 1873, the miners drew up resolutions to counter the actions of the grantees : (1) they would not compromise with the grantees (2) anyone involved with the Grant would be looked upon as an enemy (3) anyone acting in a contrary manner (spying, preventing funds, etc.) would be asked to leave the district (4) they would unify to defeat the Grant… . “hold up to scorn the enemy in our midst.”

Now the rehearing was before the Surveyor-General and the editorial section of the Union was attacking the grantees once again. “One obstacle now stands in the way of the rapid development of our mining section into a position of importance second to a very few on the Pacific Coast: that obstacle is the Cuyamaca Grant, now being energetically contested by the miners and settlers of the Julian District.”16 By June of 1873, Hardenburgh adhered to his former decision and forwarded his opinion with the presented evidence to Commissioner Drummond in Washington. The situation was looking very optimistic for the miners, and the grantees were on the defensive. One tactic left to the grantees was to order an injunction that prohibited the cutting of wood by any resident in or about the Julian area on the lands embraced in Pascoe’s survey while it was under contest. The paper’s reaction to this could be easily predicted. “It is scarcely probable that the court will grant an enjoining order. It would simply be an act of oppression, to worry and harrass the contestants of the Grant.”17 However, the claimants did obtain their injunction from the U.S. Circuit Court at San Francisco.18

The period leading up to the decision of the Land Office in Washington was marked with reviews of the case and events that had transpired during the contest. The Union discussed the character of the two parties concerned. The Deputy U.S. Marshal subpoenaed seventy-seven persons of the Julian area on the injunction about cutting wood; an action which caused rebuttals from both sides. At last, in November of 1873, the news arrived that Pascoe’s survey had been rejected and that a new survey, leaving out the area of Julian, would be taken. The injunction of restraint for cutting wood was also dropped. The Union indicates the general feeling of the public with the statement, “The decision may be accepted as finally settling the case in favor of the miners.”19

Needless to say there was much celebrating and congratulating on the part of the miners and citizens of San Diego. The best summation of the case and all that occurred is appropriately presented in a poem by someone who simply calls himself Semper Paratus.

Ye Stalwart sons of labor, who live within this state
An interesting history in you I will relate
Tis of the Cuyamaca Grant, which everyone must own
To be the most gigantic feud that ever yet was known
The swindle was projected when first our mines were found
When Pascoe made his false survey, to take in all our ground.
Their scheme was not successful, although they ran their lines
To survey in our farming lands, and also take our mines
We soon employed a lawyer this false survey to fight,
And Hardenburgh decided that we were in the right,
The case was sent to Washington and what did Drummond do
But send it back immediately to have it tried anew
Our witnesses were ready when the case came on again
And from the evidence adduced it seemed to us quite plain;
He spoke of how he got the Ranch, and where it ought to be,
And that the Valle de las Viejas was its southern boundary
The Diseno also was produced, on which our claims we fix,
As by that, they got their grant confirmed in 1856,
Establishing, beyond a doubt, in all unbiased minds,
That Julian was at least two leagues north of its northern lines.
Now when these knaves discovered that they were in a trap,
They called up Don Juan Warner, who swore he made the map.
He proved his memory very thin, and well that title earns,
For it was proven on the stand, ’twas made by Abel Stearn.
The papers went to Hardenburgh, who openly disclosed
The same opinion as before, and that he felt disposed
To tell the Land Commission that he no cause could find
To reverse his first decision, or in ought to change his mind.
But would send the proofs to Washington, that he might understand
Whether the mines were on the grant or on the public land.
The Commisioner decided, to his honor it be said
That the surveys be rejected, and a new survey was made
Being girded by the Fox map along its northern line,
And a survey made accordingly, which would the grant confine
Within its legal boundaries, for Drummond did decree
That Cuyamaca’s northern peak its northern line should be
But while the case was pending these grant men went in haste
To swear out an injunction to restrain us from all waste.
Subpoenas then were issued and served on everyone
Of the farmers and the miners for the mischief they had done.
For the farmers had built houses to protect them from the cold
And the miners had dug up the soil and robbed it of its gold.
Valued at ten-thousand dollars, so the complainant swore,
And if all depended on his oath would add ten-thousand more.
He forced us to make answer, which we sent at once above,
Unto the U.S. Circuit Court, in which we hope to prove
That the lands, which we now occupy, to Govn’t belong,
And that granting an injunction would be doing us a wrong.
The injunction I will cast aside and now proceed to tell
What happened when the news arrived, and afterwards befell.
On the arrival of the stage the news spread throughout the street
That the survey was rejected and that we had beaten Treat.
We stuffed some clothing full of straw, and round it we did flock
And marched the figure through the streets till it was 12:00 o’clock.
We hung it then upon a pole, and every person by
Could read the placard on its breast. “John Treat, today you die!”
Swinging on the pole all day, exposed to public sight,
His grotesque figure seemed to fill the boys with delight;
At night bonfires were kindled, and people thronged the street,
To participate in the burning of the effigy of Treat.
But Treat is not the worst of them, at least so we’ve been told.
For Luco is notorious as an operator bold.
There are some persons living here of whom I know well
Who have . . . meeting and around among . . .
Gleaning news for . . . who would rob us of our homes,
Disappearing and appearing to us like so many grones,
To which I say, take warning, or you will surely meet
A fate, perhaps, ten times as bad as that of poor John Treat.
Mr. Hartman was out generaled, with all his witty ways,
And by our able counselor, the talented Judge Hayes
Who won our case most nobly, not withstanding all our fears,
And to him for it, I now propose to give three rousing cheers,
Now comes an able lawyer, one of the mighty throng
That swell on Nation’s Capital, who helped our case along,
And labored for us faithfully without retaining fee,
I speak of St. Clair Denver, so give him three times three.
Now give three cheers for Julian, and her hardy sons of toil,
For those who helped us in our need, let daughter and let son
Shout with their songs of gratitude, that our case is won.20

The case then went to the Secretary of the Interior on an appeal taken by the Grant claimants from the decision of Commissioner Drummond, during March of 1874. By June the case was before the Secretary of the Interior and in July he reinforced Drummond’s decision and the claim was finally confirmed. Julian was at last free from the question as to who had legal right to the land in that area. In November a United States surveyor by the name of Norway from Santa Barbara completed the survey of the Grant and it was sent to Washington to be patented. In January of 1875 the patent was issued consisting of 35,000 acres and the confirmee was Augustin Olvera, the former owncr of the Grant.

In tracing the developments of this case, it is easy to see the social implications of the ties or bonds that developed between the miners and the citizens of San Diego, due to the realization that each would benefit the other. Because of this situation, it is very difficult to form an unbiased opinion of the land speculators’ feelings about the contest. It is evident that they were interested solely in their own profit and that the city feared their having a chance to monopolize the mineral, forest, and water resources of San Diego County. If the land claimants’ position had been more beneficial to the city, the situation might easily have been reversed.


NOTES

1. See Appendix II.

2. Olvera never did settle on this land. The only actual use ever made of the land was when he hired an agent by the name of Cesario Walker in the period of 1847-48 to establish a sawmill and cut lumber. But the Indians scared Walker off and destroyed his place.

3. The newspaper makes a comment here that out of 480 Mexican land grants filed in 1850 not more than one-fifth were legitimate.

4. The paper then states that neglect of the case by the United States was the main cause of the Grant’s confirmation.

5. The San Diego Union, June 2, 1870, p. 2, col. 4.

6. See Appendix I.

7. James Pascoe was asked by the claimants to survey the land, not according to the decree of confirmation, the terms of the grant, or the description as shown in the diseno, but in a manner requested by the present owners. (1) The owners of the grant requested him to make the line of the Santa Ysabel Rancho the northern boundary. (2) In making the location he was guided by Ortega’s statement made prior to the date of the grant, instead of the decree of confirmation and the diseno. (3) The land embraced by his survey was better grazing land than that shown in the San Diego

8. The San Diego Union, June 9, 1879, p. 2, col. 2.

9. Ibid.

10. A side note to this is that Day approved a plan to run these surveys through the claim rather than around it, as Pascoe had done. This enabled the surveyors to gain a much more accurate conception of the layout of the claim.

11. The San Diego Union, August 18, 1870, p. 3, col. 2.

12. Ibid., September 10, 1972, p. 2, col. 2.

13. Senator Houghton was trying to introduce a bill which would take cases out of the Land Offices and place them in the courts. Needless to say the Union was behind this action.

14. The contestants handed in names of 72 persons to be subpoenaed to testify in their behalf, but only eight were examined.

15. The San Diego Union, December 12, 1872, p. 2, col. 1.

16. Ibid., April 5, 1873, p. 2, col. 1.

17. Ibid., August 6, p. 3, col. 2.

18. A second change of tactics by the grant holders was that they contended the diseno was incorrect and that the land described could not be found. They further maintained that the diseno should be disregarded, but that the Decree of Confirmation to eight square leagues of land and Pascoe’s survey should be accepted.

19. Ibid., November 30, 1873, p. 3, col. 2.

20. The San Diego Union, December 21, 1873, p. 3, col. 4.


Appendix I

III.?STATEMENT OF ORTEGA.

SAN LUIS REY, JUNE 18, 1845.

The tract known by the name of Cuyamaca is in the vicinity of, or bordering on (colindante con) Santa Ysabel, and is absolutely vacant (valdio) , and extends to Milquatay and part of the Valle de las Viejas. This is all I can state, in consequence of the question made to me, in conformity with the foregoing Superior Decree.

JOSE JOAQUIN ORTEGA.

Appendix II

V.?ORDER FOR THE GRANT.

In view of the petition heading these proceedings, the reports made in the same, together with all other things that were brought forward, and were proper to be kept in view, in conformity with the provisions of the Law of 18th August, 1824, and the Regulation of 21st of November, 1828, the citizen, Agustin Olvera, is declared to be owner in full property of the tract called Cuyamaca, within the jurisdiction of San Diego. Let the appropriate title be delivered to the interested party, and let it be noted therein, that whenever he may be placed in juridical possession and the appropriate diseno may be formed, the original of which must be annexed to this Record (espediente), the Judge delivering possession shall forward to the Government a notice of the number of square leagues (sitios) it may contain. And let this grant be submitted for the approbation of the most Excellent Departmental Assembly.

I, Pio Pico, Governor ad interim of the Department of the Californias, have so ordered, decreed and subscribed, which I certify. PIO PICO.


A Selected Bibliography

The San Diego Union, 1870-1874.

The San Diego Union, December 27, 1964.

The San Diego Union, May 12, 1968.

Transcript of Proceedings in Case No. 375, Augustin Olvera, claimant, vs. The United States, defendant, December Term, 1857, No. 124.

Transcript of Affidavits sent to U.S. Surveyor-General, 1870-1871.

Letter of decision of U.S. Surveyor-General, April 15, 1871.

Depositions taken before A. S. Grant, County Clerk, S.D. County, in the matter of the survey of the Cuyamaca Rancho, Certified March 24, 1873.

Letter of instruction for land surveys of private claims from General Land Office in Washington, D.C., to the Surveyor-General, August 13, 1872.

Order for a rehearing upon Cuyamaca Survey, Drummond to Hardenburgh, August 21, 1872.

Order fixing time for a rehearing, February 5, 1873.

California University, Bancroft, Works in the Bancroft Library related to San Diego, Selected for microfilming by Marco Thorn, S.D. 1965. “Cuyamaca Rancho State Park” Miguel Costanso, pp. 59.


Richard C. Martin is a graduate of the University of California at San Diego. He wrote this paper while working on his Master’s Degree at the United States International University, California Western campus. Mr. Martin is presently teaching elementary school in New Zealand.