By Clare B. Crane
Winner of the Judge Jacob Weinberger Award for Legal History
in the 1991 San Diego History Center Institute of History.
It is often assumed that the Hispanic settlement and occupation of California left little impact on modern San Diego, save for mellifluous place-names and handsome stucco and tile- roofed buildings. The most important effect of the Hispanic heritage, however, is not visible, but lies in the complex and little-known legal history of San Diego when it was a Mexican pueblo (that is, a town), a civilian community with settlers and municipal government, and — most important — thousands of acres of city-owned land. These are the Pueblo Lands, so called because they belonged to the pueblo of San Diego.
San Diego was established as a presidio, or military outpost, as well as a mission, in 1769, as part of the Spanish Colonial Empire. In the 1820s, Mexico became independent of Spain, and the retired soldiers began to move out of the presidio and down the hill, establishing houses in what we now call “Old Town.” In 1834, after receiving petitions from the residents for civilian government, Mexico recognized San Diego as a pueblo and granted it the right to municipal government. Most significantly, the grant of pueblo status brought with it the right to pueblo lands.
After the Mexican War and the American occupation in 1846, California became a territory of the United States. In 1850, when California became a state, San Diego was chartered as a city under California law. Because it had been a pueblo, San Diego inherited the legal rights and the lands assigned under Spanish and Mexican law. The significance of this lies in the fact that, as a former Mexican pueblo with certain Hispanic legal rights to land and to water, the city was later able to assert its legal right to the waters of the San Diego River, and even to those of the Colorado River. The history of San Diego’s water rights and water development is a fascinating and exciting subject, which deserves a full treatment of its own. For the purposes of this essay, I have chosen to focus on the complicated legal history of the acquisition of San Diego’s pueblo lands–an extremely valuable legacy of some 48,000 acres.
The pueblo lands provided a legal, geographic shape to San Diego in 1850. The ownership of these lands, the Hispanic “dowry” of San Diego, has played a highly significant role in the city’s development, not just in the nineteenth but especially in the twentieth century.
The Spanish government had an enormous amount of land available for settlement in its New World possessions. The Laws of the Indies, published in 1681, provided, among other matters, for the establishment of pueblos. Each mission and presidio in the frontier area was expected, eventually, to become a civilian community (pueblo) after the Indians had become sufficiently Christianized and ‘civilized’ to be good Spanish citizens and farmers. Until that time, other pueblos were to be established with settlers from Mexico, who would provide food and clothing to help the missions and presidios. Hubert Howe Bancroft, the foremost historian of California’s early days, summarized the system as follows:
The original Spanish occupation of 1769 was a colonization scheme, the presidio being a temporary device to protect settlements during the process of development, and the mission another expedient to fit the natives for settlers and citizens; ultimately . . . California was to be a country of towns and farms . . . a community of tribute- paying, God-fearing Spanish citizens.1
San Diego holds pride of place as the first mission and presidio established in California, founded in 1769. It was the first permanent Spanish settlement in Alta California, and has sometimes been referred to as “the Plymouth Rock of the Pacific.”2 Other presidio and mission settlements followed: Monterey, in 1770; San Francisco, 1776; and Santa Barbara, 1782. Meantime, to help support these military and religious communities, civilian pueblos were established at San Jose (1777), Los Angeles (1781), and Branciforte, near present-day Santa Cruz, in 1797. By the end of Hispanic rule of California, in 1846, there were four presidios, seven pueblos, (three named above plus one spawned by each of the presidios), and twenty-one missions.
Detailed regulations for organizing pueblos included the division of land into house lots, planting areas, municipal lands and common lands; there were regulations for government by a town council; and there were general statements that each pueblo was entitled to four square leagues of land. (Since each square league equals 4,438 acres, four square leagues is 17,752 acres).3
In 1791, Pedro de Nava laid the groundwork for the development of presidial pueblos (that is, civilian settlements developed from military posts), when he authorized military commandants to grant house lots and planting fields near the presidios. Gradually, as the soldiers married or retired, small communities grew up near each of the presidios.4
By the 1820s, after Mexico had achieved her independence from Spain, these presidial communities were growing and in need of municipal government. Monterey, the capital of California, had a population of several hundred. San Diego’s population was much smaller, but nevertheless, by 1830, seven land grants had been made to residents near the presidio.5
In 1833, Governor Figueroa brought new energy and a new administration to Mexico’s frontier province of California. He was determined to carry through the long-intended policy, both under Spanish and Mexican law, of secularizing the missions (of which there were by then twenty-one), and “emancipating” the Indians. Despite the noble rhetoric, what this meant in practice was giving away all the mission lands–hundreds of thousands of acres of the best arable and grazing lands–and virtually abandoning the Indians.
Under Figueroa’s administration, a number of large land grants were made to Mexican citizens who petitioned for them; mission lands were placed in the hands of administrators who were to superintend the secularization process; and several pueblos were established and granted land. San Diego, for example, sent a petition to the Governor in 1833, signed by Jose Antonio Estudillo and other leading citizens, asking for formal recognition as a pueblo, with a locally-elected town council.6 Thus, in 1834, permission to establish municipal government was granted to San Diego, San Francisco, and Santa Barbara7 — all pueblos which had grown out of the original military presidios. Monterey, the fourth of these presidial pueblos, already had sufficient population to have a town council before 1830.8 Elections were held in December, 1834, and the town councils, consisting of an alcalde (mayor), two regidores (councilmen), and a sindico (legal advisor), took office in January, 1835.
The Figueroa administration made a half-hearted effort to comply with the Spanish colonial policy that envisioned Indian pueblos developing out of mission lands. Three of these were established in 1834, all in southern California: San Dieguito, San Pascual, and Las Flores. One other pueblo was established on former mission lands, at Sonoma, in northern California (1835), but its settlers were not Indians.9
San Diego, whose estimated population in 1834 was near 500, had shrunk to 150 inhabitants by 1841.10 The depopulation was partly due to the fact that those who received land grants from the Mexican government moved out of town and settled on their ranchos with their families. Since the town’s population had dropped below the required level, its town council was replaced in 1838 by a justice of the peace; but by 1845, it was entitled to a sub-prefect. The Governor appointed Santiago Arguello to that position and Arguello ordered a survey of the pueblo lands. This turned out to be an event of enormous significance for San Diego. Arguello himself participated in making the survey, as did Jose Antonio Estudillo, Jose Matias Moreno (who later became secretary to Governor Pio Pico), Captain Henry Delano Fitch (a New England sea captain who had married San Diego’s Josefa Carillo and became a Mexican citizen, storekeeper, and landowner), and several others. The survey was made in August, 1845; boundaries were noted, landmarks were recorded, and a map was drawn up by Captain Fitch. The map was sent to the Governor’s office and signed by Pio Pico in May, 1846.11
Though not especially remarked at the time, the action of these men in making the survey ensured that San Diego would eventually receive title to about 48,000 acres of land–more land than any other city in California; and, probably, more land than any other city in the United States.
A discussion of the events of the Mexican War is beyond the scope of this paper, but, for purposes of establishing the legality of land titles, it is important to note that U. S. jurisdiction over California began on July 7, 1846, with the conquest of Monterey, the capital of Alta California. Two years later, under the terms of the Treaty of Guadalupe Hidalgo, Mexico ceded California and other territories to the United States. Under the provisions of the Treaty, residents of these areas were guaranteed property rights to land held under Mexican law.12
However, getting title to the land was accomplished only after getting the “run around” from the U. S. government for twenty to thirty years. Not until 1851 did Congress set up procedures for gaining clear title, or, in legal terminology, a “patent,” to land claimed by individual rancho grantees, and to pueblo lands, claimed by the municipal authorities of the former Mexican pueblos. The Act of 1851, largely written by California Senator William Gwin, required all property claimants to present evidence of their land grants to the Board of U. S. Land Commissioners, which would examine evidence and witnesses, and issue a decree confirming or rejecting the claim. The decree could be appealed by either the claimant or the federal government attorneys (who did, in fact, appeal most of the claims) to the U. S. District Court; and appeal could be made from there to the U. S. Supreme Court. In debate over the bill, Missouri Senator Thomas Hart Benton criticized the procedures as being:
perfectly equivalent to a general confiscation of landed property . . . [It] would be more merciful at once to pass an act of general confiscation, so as to permit the people to go to work in some other way to obtain land, and to save the expenses, anxieties, and I believe I may say the horrors of going through three lawsuits for their property, and one of these lawsuits 3,000 miles from where they live.13
Historians have been virtually unanimous in their condemnation of the system for confirming California land titles, calling it “legalized meanness,” “outright persecution” and “thoroughly bad in almost every respect.”14 They believe that a simpler, less expensive procedure could have been instituted to examine and confirm titles, with the work completed in three to five years.15 Instead, government attorneys fought the claimants over every petty technicality, appealed most of the cases to the District Court and even, on occasion, to the Supreme Court. Ultimately, of the 813 claims presented to the Board of Land Commissioners, 604 (representing about 9,000,000 acres) were confirmed, and 209 (representing about 4,000,000 acres) were rejected.16 Seven cities, including San Diego, received confirmation of their pueblo land grants.
Although claimants appeared before the Board of Land Commissioners in the early 1850s, most titles were not perfected and patented until the 1870s and 1880s. Many of the original claimants were dead by then, and their heirs had transferred provisional title to lawyers or borrowed heavily in order to pay the costs of litigation. Bancroft concludes that:
seven-eighths of all the claimants before the commission were virtually robbed by the government . . . . As a rule, they lost nearly all their possessions in the struggle before successive tribunals . . . . The lawyers took immense fees in land and cattle, often for slight services or none at all . . . . The estates passed for the most part into the hands of speculators who were shrewd enough and rich enough to keep them.17
It was not only the land grant owners who suffered, however. All residents of California, all business owners, were affected by the insecurity of land titles during this lengthy period of litigation. “Since real estate was a doubtful collateral, interest rates were kept abnormally high . . . and many of the most substantial men . . . reluctantly left the state.”18 Those who remained contained a very large proportion of speculators, shyster lawyers, corrupt politicians, and land sharks.
One of the worst results of the prolonged litigation over land claims was the impetus it gave to squatters, who believed that these large land grants were “un-American.” They were now encouraged to believe that they would be invalidated by the courts, and that all the land in California would be open to pre- emptive settlement. The squatter influence was extremely powerful, especially in Northern California, which was flooded with settlers as a result of the Gold Rush. “For years,” wrote Bancroft,
they had a secret league, with the moral support of thousands who were not members . . . . The squatter interest . . . virtually controlled legislatures, juries, and the policy of Congressmen . . . . In 1852 Senator Gwin, under this influence, had the assurance to introduce a bill, which happily did not pass, to give squatters a valid donation title to 80 acres on [all] Mexican grants . . .19
The American and Hispanic views of the appropriate size for land grants represented a collision of value systems. These differing views, of course, were reflected in the laws governing land ownership.
In Spain and its colonial empire, huge cattle ranches were customary. In an arid land with sparse vegetation, it may require one to two hundred acres of pasturage for each animal. Consequently, land grants of thousands of acres were considered normal, especially when the land appeared limitless.
On the other hand, as W. W. Robinson remarks, “Every American is a squatter at heart.”20 To explain this, he describes the development of the Pre-emption Act:
Settling on government land without permission– squatting–had begun as soon as the Revolutionary War ended and emigrants headed west . . . . Settlers finally won the legal right of pre-emption, the right of settling on unappropriated public lands, and later buying them . . . . The Act of 1841 recognized pre-emption rights . . . to government land, in parcels of not more than 160 acres at $1.25 an acre . . .21
The concept of homesteads, that is, 160 acres of free government land for each settler, was a natural outgrowth of preemption practices; and in 1862, during the Civil War, President Lincoln signed the first Homestead Act. To qualify for 160 acres of unappropriated public land, all that was necessary was payment of a small filing fee and a promise to live on the land for five years.
Americans thus expected to be able to take up free or cheap public land when they came to California. In addition to the millions of acres of federal public land, which could be preempted or homesteaded,22 there were State public lands also. These were lands deeded to California (as to other states in the past) by the federal government after California was admitted to statehood in 1850. These lands, which were granted to states for the support of educational institutions, internal improvements such as roads, and public improvements such as reclamation and irrigation, amounted to roughly ten million acres. Most of this land, sold quickly and cheaply to provide funds for the previously-named improvements, was in private hands by 1868. Thus, wrote Bancroft:
. . . in eighteen years the state had disposed of her vast landed possessions, making no attempt to increase their value by improvements, nor leaving any to rise in value . . . 23
What Bancroft wrote about the disposition of state lands prefigures the disposition of municipal lands, including those of San Diego. But before we see how they were disposed of, let us look at the difficulty with which they were acquired. The Act of 1851 establishing the U. S. Land Commission provided that if a town was in existence on July 7, 1846, that was prima facie evidence of a previous land grant. Of the pueblos that had been established under Spanish or Mexican administrations, several had disappeared by 1846, and thus presented no claims.24 Branciforte, near Santa Cruz, had been abandoned even before the Mexican era. The three Indian pueblos, founded in 1834 after secularization, had been absorbed, through purchase or fraud, by ranch owners, and presented no claims. The Land Commission operated on the principle that “. . . each town was entitled to the lands granted or assigned by survey, or to four square leagues if no area or bounds had been fixed.”25
Seven cities in California were eventually confirmed in their pueblo lands, though not always with the amount claimed. San Jose claimed over eleven square leagues, but by the time several rancho grants were cut out, its land was reduced to “. . . less than two leagues in five tracts.” Los Angeles, unsuccessfully claiming four leagues square (or sixteen square leagues) received only four square leagues. Sonoma also received four square leagues.26
Of the four presidial pueblos founded in the 1830s, Santa Barbara claimed eight and three-quarter leagues, but was reduced to four; San Francisco, after an epic struggle with squatters and fraudulent claimants, finally received four square leagues;27 Monterey was confirmed in a grant of 30,865 acres;28 and San Diego–the big winner–was confirmed in its claim, based on the Fitch map, of eleven square leagues–48,556 acres. This was later reduced, by land assigned to the Military Reservation on Point Loma (1,233 acres) so that San Diego received a patent, in April, 1874, for 47,323 acres.29
The events that took place between 1854, when San Diego filed its claim (#589) before the Board of Land Commissioners, and 1874, when the patent to the pueblo lands was finally received, provide a striking illustration of Bancroft’s complaint that government officials insisted upon every petty technicality and, thus, unfairly prolonged the process of certifying claims.
San Diego received more land than any other city because it could substantiate its claim with a map, based upon a survey conducted in 1845, and with depositions from two men who had participated in the survey and the designation of landmarks.30
The Board of Land Commissioners approved the map as drawn by Fitch, and the boundaries as described by Arguello and Moreno. The pueblo was, in fact, surrounded by three Mexican land grants: on the North, Rancho Penasquitos, granted in 1823 to Captain Francisco Maria Ruiz, commandant of the San Diego presidio; on the South, Rancho de la Nacion, granted in 1845 to John Forster by his brother-in-law, Governor Pio Pico;31 and on the East by the ex-Mission San Diego, granted to Santiago Arguello by Governor Pico on June 8, 1846.32
The Commissioners were satisfied that San Diego had substantiated its claim and issued a decree of confirmation on January 22, 1856. A routine appeal was filed by the U. S. attorney; the appeal was reviewed and dismissed, and the city was “. . . given leave to proceed as upon a final decree.” The next step was to have an official survey made; this was done by John C. Hays, U. S. Deputy Surveyor. The survey, embracing 48,556 acres, was approved December 4, 1858, with a statement that the city was entitled to a patent from the U. S. government. However, no patent was issued, either because of a bureaucratic slip-up, or because the city Trustees failed to request it, or, as appears likely, because the Board of Land Commissioners did not believe it necessary to provide a patent to a municipality.33
The Trustees believed everything was in order and issued deeds to long-time residents for land they already occupied, in some instances, since the 1820s. Some farsighted San Diegans created a railroad corporation in hopes of securing a transcontinental railway connection. The San Diego & Gila, Southern Pacific & Atlantic Railroad Company was granted two leagues (nearly nine thousand acres) of pueblo land by the trustees. The grant was contingent upon completion of the railroad, however, so no deeds were issued at that time.34
Newcomers also obtained land. William Heath Davis, a merchant and coastal trader, joined Andrew Gray (surveyor for the U. S. Boundary Commission) and several other investors in purchasing 160 acres several miles south of Old Town. They laid out a subdivision and named it New San Diego. Davis, the wealthiest of the partners, paid for construction of a wharf and several buildings, and attempted to stimulate settlement in this new location on the waterfront, near the foot of present-day Market Street. But Old Town clung tenaciously to its position as the commercial and governmental center of San Diego. Within a few years, New San Diego became known as “Davis’ Folly.”35 Other pueblo lands were also granted during the 1850s to hopeful subdividers in Middletown, La Playa, and Roseville. None of the new subdivisions generated any significant development at the time. San Diego slumbered until after the Civil War when activity began to pick up again.
In 1867, with the arrival of Alonzo Horton, the real growth of the city began. Horton, a shrewd but visionary businessman from San Francisco, with enough cash and faith in his dream to carry him through hard times, called San Diego “. . . a Heaven on Earth . . . it seemed to me the best spot for building a city I ever saw.”36 On May 10, 1867, Horton purchased several hundred acres, most of what is now downtown, adjoining Davis’ New San Diego.37
Horton had a subdivision map drawn up, went back to San Francisco, opened a real estate office, and began to sell land. This activity fired up enthusiasm about San Diego real estate in general, and by 1868 “. . . some 2,500 additional acres of pueblo lands were disposed of at auction [and] two long wharves were under construction.”38 The Trustees, somewhat uneasy about the city’s title to its pueblo land, requested a formal approval from the U. S. Surveyor General. Although this seemed to be simply a formality, it opened a Pandora’s Box of troubles.
Land Commissioner Joseph Wilson replied magisterially from Washington, D.C. that “. . . since the U. S. District Court had not approved the survey . . . it must now be republished . . . and approved by the Commissioner.”39 Thus, in February and March, 1869, the Surveyor General published notices that the survey of San Diego’s pueblo lands was being held in his office for ninety days, during which time any objections could be filed. The notice brought forth a spate of “protests, exceptions and [legal] briefs on behalf of interested parties–and several forms of the Fitch map to buttress the claims of the petitioners.”40
The objections filed (in May, 1869) were as follows: (1) the United States government objected, claiming that the Military Reservation of 1,233 acres should be excluded from the pueblo lands; (2) Levi Diamond claimed that the Chollas Valley should be excluded from the pueblo lands, and should, instead, be assigned to the adjoining Rancho de la Nacion; (3) Juan Luco, representing himself and the heirs of Santiago Arguello, owners of the Ex- Mission Rancho, contended that the pueblo of San Diego was only entitled to four square leagues of land under Spanish and Mexican law, and therefore the excess seven leagues should be added to the adjoining Ex-Mission Rancho; (4) The Board of Trustees of San Diego took exception to the Hays survey because it excluded land within the Bay, and stopped at high tide line. City Attorney Charles P. Taggart, a clever, skillful, but unscrupulous lawyer recently hired by the Trustees (who were now: James McCoy, president; Matthew Sherman and Jose Estudillo), provided a copy of the Fitch map showing a line drawn between the Chollas Valley and Point Loma, thus including what was called the “Peninsula of San Diego” (present-day Coronado and North Island) within the city’s land ownership–an area of 4,185 additional acres. Taggart also contended that the Fitch survey embraced the area down to low tide lines; (5) Miguel de Pedrorena and a group of other land owners with waterfront property in Old Town, Middletown, La Playa and elsewhere, filed an objection, claiming tide lands “as described on the Fitch map.” (6) Ephraim W. Morse, Alonzo Horton and others objected to the Trustees’ and Taggart’s claim that the city owned the tidelands; Morse, Horton, et al. had filed “location” claims with the State of California for tidelands. (7) The San Diego and Gila Railroad, and the Memphis and El Paso Railroad, successor to the SDGRR claims to pueblo lands, also filed objections to the Hays survey, contending that Hays’ meandering lines along the Bay cut off “some 43 acres of valuable land they had obtained from the city.”41
For nearly two years, from the beginning of 1869, when the first objections to the pueblo lands survey were filed, until December, 1870, when Land Commissioner Joseph Wilson issued his ruling on the objections, all land titles in San Diego were considered at risk. Squatters quickly moved in, as they had done successfully in San Francisco and elsewhere in Northern California, building fences and shacks on unoccupied land. A “Pueblo League” was formed by nervous landowners who tore down fences and forced squatters off property at gunpoint;42 and the trustees passed a resolution making squatting a misdemeanor, punishable by a fine of $100 per day.43
Before returning to the final resolution of the pueblo land titles, let us look a little more closely at Juan Manuel Luco, the man chiefly responsible for all the uproar. Luco was an attorney skilled in land litigation, a man of means and doubtless possessed of charm, but also capable of fraud, forgery, and bribery in pursuit of his aims. He was active in northern California land grant cases before coming to San Diego. According to Bancroft, he successfully laid claim to the Milpitas grant in Monterey County, although “apparently the grant was fraudulent . . . and worse yet, the survey was . . . increased from 12,000 to 30,000 acres to include the lands of some one hundred settlers.”44 Following that, Luco presented claim #813 before the Board, for the Ulpinos Ranch in Solano County. This was the last claim presented to the Land Commission in 1854 and was heard after their regular session only because of a special act of Congress, which implies that Luco had political influence. The claim, wrote Bancroft,
[was] one of most carefully prepared of the crooked cases. . . . the claim was rejected as fraudulent throughout, Pio Pico’s signature and the government seal being forgeries, most of the documents spurious, and testimony in support of [the] claim and occupancy for the most part perjury.45
Those frauds had been perpetrated in the 1850s and had probably gone unnoticed by the general public; no mention of them occurs in connection with Luco’s activities in San Diego County in the 1860s and 1870s, which included efforts to enlarge the Cuyamaca Rancho grant after gold had been discovered, so as to include the Julian mines.46 His first activity, however, was an attempt to enlarge the Ex-Mission Rancho at the expense of San Diego’s pueblo lands.
The former mission lands had been deeded to Santiago Arguello in 1846. Arguello married Maria Pilar Ortega in 1810, and they had 22 children, of whom nine grew up and had children of their own. Consequently, when Arguello died, in 1862, without a will, there were many heirs. His widow, Maria Pilar, relied upon her son-in-law, Agustin Olvera, for legal advice and apparently gave Olvera a deed to one third of the Rancho in 1868. But in September 1869, she brought suit against Olvera to void the deed, as having been obtained by fraud. The suit contended that Olvera had illegally sold thousands of acres of land, some of it to Juan Luco in 1869.47 Meantime, Luco (February 4, 1869) acquired all rights of Francisco Arguello, a son and one of the heirs, and sometime later, all rights of Jose Arguello, a grandson.48
Luco’s most important claim to an interest in the estate, however, was based on a contract between Olvera and San Francisco attorney Isaac Hartman dated February 3, 1869, in which Olvera,
employed Hartman to procure a patent from the U.S. for the lands of the Ex-Mission of San Diego . . . and as compensation . . . agreed to convey to Hartman [one half] of all the lands for which he might procure a patent over and above eleven square leagues. On March 23, 1869, Hartman [conveyed to Juan Luco] all his right, title and interest in the agreement aforesaid and to all the lands to be conveyed to him by virtue of the terms . . . of the same.49
In other words, Luco had a contract to see if he could enlarge the Ex-Mission grant, and if he could, he would receive half of all the land obtained over eleven leagues. How better to enlarge the Ex-Mission grant than by reducing the adjoining pueblo land grant to four square leagues and having the excess seven leagues added to the Mission grant? Luco hired surveyor James Pascoe to prepare a map showing the proposed reduction of San Diego to four square leagues, and the consequent enlargement of the Ex-Mission lands. If Luco’s plan had been accepted by the government, San Diego’s pueblo lands would have been reduced to approximately 17,000 acres instead of 48,000. Since virtually all of that area had already been deeded away, there would have been no “dowry” left for the city in the twentieth century–no land left to entice General Atomic, the Salk Institute, and UCSD. The legal ramifications would have been enormous; any individual or corporation previously deeded pueblo land outside the new boundaries could have filed suit against the trustees and the costs of litigation would have bankrupted the city.
Sherman Day, the U. S. Surveyor General in California, received all the objections to San Diego’s pueblo land survey, and forwarded his opinion in December 1869, to the Land Commissioner’s office in Washington. The Fitch map and Arguello’s testimony about the accepted boundaries, he concluded, “were the sole basis for the location of the pueblo lands.”50 In regard to the other objections, he concluded:
the tidelands belonged to the State. The city had sold [tide] lands it did not own, made large illegal grants for purposes of speculation . . . and claimed property [i.e., the Peninsula] not in the pueblo.51
Despite the Surveyor General’s opinion, there were two more levels to which argument could be taken: to the office of the Land Commissioner, and finally, to the Secretary of the Interior. In July 1870, the Trustees of San Diego (James McCoy, A. B. McKean and C. W. Lewis) made an agreement with the city attorney Charles Taggart and a San Francisco land law specialist, General Volney Howard. If Taggart and Howard could successfully procure the city’s title to the tidelands, and to the Peninsula, they would be granted thirty blocks of tidelands and half of the Peninsula.52 Taggart and Howard’s arguments to the office of the Land Commissioner rested upon interpretations of Spanish and Mexican law, which held that the Bay and tidelands belonged to the pueblo.
The Trustees also hired a Washington lawyer, Edmond Goold, to represent the city before the Land Commissioner. Goold rejected Luco’s claim that the pueblo was entitled to only four square leagues by emphasizing that Arguello’s heirs (whom Luco claimed to represent) “could not repudiate a boundary of Arguello’s own making.”53
Finally, after reviewing all the testimony, the U. S. Land Commissioner, Joseph Wilson, submitted his decision to the Secretary of the Interior, Columbus Delano, in December 1870. His most important decisions were as follows: (1) the U. S. government had “prior rights” to the Military Reservation, and this area, 1,233 acres, should be excluded from the pueblo lands; (2) Las Choyas [sic] was part of the pueblo, not of Rancho de la Nacion; (3) “the owners of the Ex-Mission had no claim to the pueblo lands, for Arguello had [acquired] the tract with full knowledge of the pueblo boundaries; and the discussion of the four square leagues was irrelevant;” (4) the city’s claim to the Peninsula was invalid, for it had been patented to others without any previous objection from the city; (5) the tide lands belonged to the state, with high tide lines as the boundary.54
But even though the Surveyor General and the Land Commissioner had rejected his arguments, Juan Luco was not through. He hired a Washington legal firm, Britton and Gray, who argued before the Secretary of the Interior that the San Diego pueblo should be limited to the traditional four square leagues because, they contended:
The Board of Land Commissioners and the U. S. District Court in exceeding that amount had acted without authority, probably not knowing the extent of the Fitch survey. The Secretary of the Interior was therefore not bound by their decisions, and the grant should be reduced to four square leagues or entirely rejected.55
In December, 1871, over one hundred San Diego landowners petitioned the Secretary to affirm the pueblo boundaries. Several prominent citizens including E. W. Morse wrote to Congressman Sherman Otis Houghton, urging him to bring “all democratic influences to bear upon [Secretary] Delano to decide in favor of the seven or eight hundred land owners rather than a “set of cheaters . . . and land sharks.”56
Juan Luco was also exercising influence in Washington. He bribed California Senator Cornelius Cole with a promise of land in exchange for help in obtaining a patent to Ex-Mission lands in excess of thirteen leagues. The agreement is dated October 10, 1872, but represents agreements made at an earlier date.57
Cole’s influence eventually paid off. The patent to the Ex- Mission lands was finally granted to the heirs of Santiago Arguello on September 1, 1876, for 58,875.38 acres; 1,181 acres more than thirteen square leagues.58 And Cole received his payment: a notarized statement attached to the previously described agreement canceled the contract when Luco deeded 293.14 acres to Cole on May 23, 1878.59
The happy ending to the story of how San Diego finally received title to its pueblo lands, despite the machinations of Juan Luco, and despite the U. S. government’s bureaucratic requirements that provided the opportunity for challenges to the city’s title, came on January 31, 1872, when Secretary of the Interior, Columbus Delano, rendered his decision, affirming all of Land Commissioner Joseph Wilson’s rulings. The Hays survey was amended to show the Military Reservation, the new survey was approved (February 12, 1874), and on May 4, 1874, after twenty years of waiting, the Trustees finally received the patent to San Diego’s 47,323 acres of pueblo lands.60
The complex legal history of San Diego’s acquisition of its pueblo lands leads naturally to questions about what happened to them, but the tale of how city officials disposed of some 40,000 acres between 1850 and 1889, when some restrictions on pueblo land sales were placed in the new City Charter, must be the subject of another paper, as must be the story of the disposition of pueblo lands in the twentieth century.
The pueblo lands have been like a dowry for San Diego, enabling her to attract significant suitors such as military installations, educational and research institutions, business, industrial, and residential development, all of which have diversified and enhanced the general economy. The first major “suitor” attracted with pueblo lands was the railroad, back in the nineteenth century. In the twentieth century, major institutions like the U. S. Navy, the University of California at San Diego, the Salk Institute, General Atomic, and numerous residential developers have been lured to San Diego, in no small degree because of the City’s ability to offer large parcels of land at good rates.
The most visible aspects of San Diego’s Hispanic heritage are certainly its place-names and its architecture. The name of the city itself, many of its mountains, valleys, subdivisions, and streets remind us of the Spanish saints, soldiers, and settlers of this area. The Mediterranean-style architecture, with its creamy stucco walls and red-tiled roofs, seen in so many homes and public buildings, is a constant visual reminder of the Hispanic heritage. But the most significant elements of the Hispanic legacy have been San Diego’s water rights and her pueblo lands.
1. Hubert Howe Bancroft, History of California (7 vols, San Francisco: The History Co., Publishers, 1886; facsimile printing, Santa Barbara, Wallace Hebbard, 1963), 6:530.
2. William E. Smythe, History of San Diego, 1542-1908, (San Diego: The History Company, 1908), 21.
3. Recopilacion de Leyes de los Reynos de las Indias, Book IV, Title V, Laws vi and x (1631) noted in Bancroft, History of California, 1:607-10; see also W. W. Robinson, Land in California (Berkeley: University of California Press, 1948), 34-40.
4. Bancroft, History of California, 1:610.
5. Lucy Killea, “The Political History of a Mexican Pueblo” Journal of San Diego History, 12 (July 1966): 5-35.
6. Ibid.; see also Bancroft, History of California, 3:702.
7. Ibid., 3:250.
8. Ibid., 2:661.
9. Ibid.; 3:721.
10. Killea, “Political History,” 32.
11. Neal Harlow, Maps of the Pueblo Lands of San Diego, 1602-1874 (Los Angeles: Dawson’s Book Shop, 1987), 21-22.
12. John Witt [City Attorney of San Diego], “The Pueblo Lands: San Diego’s Neglected Spanish Legacy,” (typescript of a talk presented to the Congress of History, March 5, 1977), 8.
13. Bancroft, History of California, 6:634.
14. John W. Caughey, California: A Remarkable State’s Life History (Englewood Cliffs, N.J.: Prentice-Hall, 1970), 253-4.
15. Bancroft, History of California, 6:578, 635.
16. Walton Bean, California, An Interpretive History (New York: McGraw-Hill, 1978), 135; Bancroft, History of California, 6:570, and Caughey, California, 245-6, give slightly different figures.
17. Bancroft, History of California, 6:576. Bancroft believes that prompt confirmation of titles to ranchos would have resulted in subdivision and sale in relatively small parcels, e.g., 160 acres, by the grantees, who were chronically in need of cash.
18. Caughey, California, 254.
19. Bancroft, History of California, 6:571.
20. Robinson, Land in California, 111.
21. Ibid., 167.
22. Pre-emption involved settling on public land before it had been surveyed, and then paying for it at $1.25 per acre after the survey had been completed. Homesteading, on the other hand, took place after public land had been surveyed and marked out into “sections.” Each section was one square mile and contained 640 acres; a quarter-section, therefore, was 160 acres, and was the common size of a homestead.
23. Bancroft, History of California, 6:640; see also Robinson, Land in California, 186-7. Yosemite and Mariposa were granted to California in 1864 with the express provision that they could not be sold; Bancroft, History of California, 6:640.
24. Bancroft, History of California, 6:566.
25. Ibid.; see also Curtis Brown and Michael Pallamary, History of San Diego Land Surveying Experiences (San Diego, 1988), 8.
26. Robinson, Land in California, 238-43; Bancroft, History of California, 6:566-68.
27. Bancroft, History of California, 6:566-68, Robinson, Land in California, 213-36.
28. Arthur Bestor, Jr., David Jacks of Monterey, and Lee L. Jacks, his Daughter (Stanford, 1945), 12; Bancroft, History of California, 6:565-68.
29. Harlow, Maps of the Pueblos Lands, 31, 44; Witt, “The Pueblo Lands,” 15; Olin Hughes, “Report on San Diego’s Pueblo Lands,” (City of San Diego, Property Deparment, 31 January 1979).
30. Handwritten depositions of Santiago Arguello, 5 July 1854; and Jose Matias Moreno, 8 September 1854, Document Files, “Pueblo Lands,” San Diego Historical Society Research Archives, San Diego, California.
31. Cecil Moyer, Historic Ranchos of San Diego (San Diego: Union- Tribune Publishing Company, 1969), 90.
32. Ibid., 109.
33. Harlow, Maps of the Pueblo Lands, 31-32, 43.
34. Minutes of the Common Council (Board of Trustees), 1850-1899, Office of the City Clerk, City of San Diego, California.
35. Elizabeth C. MacPhail, The Story of New San Diego and of its Founder, Alonzo E. Horton (San Diego: San Diego History Center, 1979), 15; Andrew F. Rolle, An American in California, The Biography of William Heath Davis (San Marino: Henry E. Huntington Library, 1956), 90-104.
36. MacPhail, The Story of New San Diego, 11.
37. Ibid., 14; See also Minutes of the Common Council, 10 May 1867. Through oversight or error, Horton’s original purchase did not include pueblo lot 1132, which was essential to completion of his subdivision. It was sold to others and Horton had to buy it in 1869 at the grossly inflated price of four thousand dollars from Homer Searl. See Robert F. Heilbron, “Horton’s Purchase: The Real Story” Journal of San Diego History (Winter 1987): 63- 71.
38. Harlow, Maps of the Pueblos Lands, 34.
41. Ibid., 35-40; see also Daniel Cleveland, “San Diego’s Pueblo Lands: How the City Acquired Title,” San Diego Union, 14 March 1926.
42. Constitution of the Pueblo League, 1869, Document Files, “Pueblo Lands,” San Diego History Center Research Archives; see also T. S. Van Dyke, The City and County of San Diego (San Diego: Leberton & Taylor, 1888), 116.
43. Minutes of the Common Council, 19 November 1868.
44. Bancroft, History of California, 6:556.
45. Ibid., History of California, 6:555.
46. Brown and Pallamary, San Diego Land Surveying, 45-46; see also Harlow, Maps of the Pueblos Lands, 35.
47. Statement of A. B. Hotchkiss, attorney for Ignacio Arguello, 17 July 1882, in “Estate of Santiago Arguello,” Probate Court case files, R3.53, case no. 24, San Diego History Center Research Archives, San Diego, California. See also Bancroft, History of California, 4:758-9 and 2:702.
48. Various documents in “Estate of Santiago Arguello.”
49. Exhibit A, accompanying statement of E. A. Harper, Administrator of the estate of Santiago Arguello, “Estate of Santiago Arguello.”
50. Harlow, Maps of the Pueblos Lands, 39.
51. Ibid., 41.
52. Ibid., 41; see also Minutes of the Common Council, 21 July 1870; see also Cleveland, San Diego Union 14 March 1926. Taggart and Howard did not, of course, acquire the tidelands and half of the Peninsula, for the Land Commissioner ruled that the tidelands belonged to the State, and the Peninsula had been granted to others without previous objection from the city. Taggart and Howard, attempting to put a good face on their corrupt agreement with the Board of Trustees, made a “generous donation” of thirty blocks of tidelands to the Trustees in April, 1871, to create a public school fund. In view of the fact that their title to those lands was invalid, this “worthless donation” was, in the words of Daniel Cleveland, “a screaming farce.” (San Diego Union, 14 March 1926).
53. Harlow, Maps of the Pueblos Lands, 42.
54. Ibid.; see also Cleveland, San Diego Union, 14 March 1926.
55. Harlow, Maps of the Pueblos Lands, 43-4.
57. Cornelius Cole, born in New York, 1822, came to California 1849, became a lawyer and Republican party leader and office- holder; he served as Congressman from Northern California 1863- 1865, then as Senator, 1866-1873. Bancroft, History of California, 7:322; The Agreement between Cole and Luco is part of Exhibit A, “Estate of Santiago Arguello.”
58. John F. Forward, Jr. and James Forward, “The Story of Land Titles in San Diego County,” in History of San Diego County, ed. Carl Heilbron (San Diego: San Diego Press Club, 1936), 224-28.
59. “Estate of Santiago Arguello.”
60. Harlow, Maps of the Pueblos Lands, 44.
Clare B. Crane is an author and lecturer on California history. She holds a Ph.D degree from the University of California, San Diego and has taught history in the San Diego Community College District. Dr. Crane was a member of the San Diego Historic Site Board from 1968 to 1976, and was the first Education Director at the Villa Montezuma from 1972 to 1974.