The Journal of San Diego History
Spring 1978, Volume 24, Number 2
Thomas L. Scharf, Managing Editor

A graduate of the University of San Diego
with B.A. and M.A. degrees in History

Oliver S. Witherby
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.

Witherby' s home
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



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:

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 SDHC 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:




S. D. County Warrants


Value in cash




3 Horses


Books, Watch.





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:


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:

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,” SDHC 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, SDHC Library.

80. Winifred Davidson, “1931 Notes,” SDHC 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, SDHC Library.

83. Winifred Davidson, “1931 Notes,” John and Winifred Davidson interview with Andrew Lyons, SDHC Library.

84. Winifred Davidson, “1931 Notes.” Interview with Lucy Wentworth, SDHC 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 SDHC 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, SDHC Library.

94. Stanford, San Diego’s L.L.B., page 67.

95. San Diego Union, January 3, 1897