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Mexican Land Claims—The U.S. Land Commission and The Burden of Proof, 1851-1854

Historical Essay

by Nancy J. Olmsted

Commodore John Sloat promised the Mexican-Californians to guarantee their land titles. The pledge was repeated by military governors General Stephen Kearny and Colonel Richard Mason, and backed up in 1848 by the treaty of Guadalupe Hidalgo, which gave the resident Mexicans their American citizenship. In the excitement of the Gold Rush, from 1848 to 1850, the whole question of Mexican land titles was put aside. But in anticipation of legal questions that were bound to arise, confidential agents of the United States combed the archives (then in considerable disarray) of the California missions and in Mexico City for some semblance of land surveys and documents that could be used as legal proof in United States courts.

The documents were assembled in one place and finally collected into 300 books of 800 pages each, “some pages worn and stained, a few with musket holes shot through,” but the original subject indexes were disregarded.52 Their generally haphazard rearrangement meant that papers relating to the missions might turn up in military matters, and questions regarding land grants might be anywhere, in any order. Most of the documents were in Spanish and there was much disagreement in American legal circles as to intentions and meanings of various phrases. This might not have been so important had it not turned out that paper claims were the basis for most of the legal decisions that confirmed or denied titles.

Hoping to settle the messy problem of Mexican land claims in California, Congress created the U.S. Land Commission. Appointed in March of 1851, the three commissioners with their support staff (only one could read Spanish) were to serve for three years. By then, it was hoped, the tangle of land ownership of these large Mexican grants would be unsnarled, if not to everyone’s satisfaction, at least without bloodshed. The life of the U.S. Land Commission was extended to 1856, but some of the titles were still the subject of dispute in courts in 1880.53

The burden of proof of ownership lay on the claimants, who had to travel to San Francisco within a specified time and present their claims, papers, and witnesses to the commission. If the commission’s decisions had been final, with no appeal, the process might not have ruined the claimants. But now, as American citizens, they had the right of appeal to the U.S. District Court, and on up to the U.S. Supreme Court, as did all third parties. “In nearly every case, whatever might have been the decision of the Land Commission, an appeal was taken.”54

“The native Californians suddenly surrounded by a strange population, strange laws, a strange language, strange customs, and strange industries, were virtually deprived of the bulk of their wealth, and then compelled to raise money to defend themselves against complete spoliation by the government. . . . Nor did the trouble and expense come to an end when he had gained his case in the Land Commission. As boundaries as well as titles were in dispute, the Americans who wanted to buy farms. . . were afraid to pay for deeds in which they could have no confidence. Under compulsion. . . they became squatters, that is they seized and occupied as their own, land claimed under Mexican grant. Having once made their settlement, they acquired interests which they defended in the courts. If they could defeat the Mexican grants they could acquire the land for a trifle. They were numerous, and became a political power. . . . There were squatter governors, squatter legislatures and a squatter press. ”55

The two large Mexican claims to the Potrero were those of Jose Cornelio Bernal to the Potrero Viejo (Islais Creek Basin and Hunters Point) and the de Haro family to the Potrero Nuevo (several thousand acres between Mission Creek and Mission Bay on the north, down to and including Potrero Point on the south). On August 4, 1857, a portion amounting to 826.44 of the original 4,442 acres of the Bernal rancho grant, Rincon de las Salinas y Potrero Viejo was confirmed to the Bernal heirs. Another small plot of 5.86 acres was also confirmed to the Bernal claimants on July 27, 1863.56 The de Haro claim remained in the courts until 1868. Meanwhile, would-be settlers populated Mission Bay land, fencing in lots for small farms and putting up modest homes.

By the time a squatter had raised his family in a home built on disputed land in the Potrero in the early 1850s, the possibility that he might one day be dispossessed must have seemed less and less likely. However, a newspaper item that appeared in the Alta on June 8, 1854, would have been unnerving: “An important motion was entertained yesterday by the U.S. Land Commission in the Potrero case, and one apparently vital to the decision of this valuable claim, in which many of our citizens and property holders are largely interested. The claim had been filed in the Secretary’s office in due time; and the counsel for the claimant now allege that a few months ago they discovered in an old batch of papers in the Mission, an original grant of the land made in 1840 by Micheltorrena to the de Haros. The motion made now is to amend the record by admitting this paper on file, which, if it proves genuine—and there is some strong testimony to its genuineness—confirms the claim beyond a doubt. The motion was not decided.”

SF1859 black-for-2page-spread.jpg

1859 U.S. Coastal Survey Map, Showing Mission Bay. In the seven-year period since the earlier Coast Survey map, the most eye-catching change is the proliferation of truck gardens around the Mission Dolores (lower-left corner). Mission Creek continues its meander undisturbed. Brannan Street fronts on the remains of the salt marsh from Fourth Street to Ninth, where it bridges Mission Creek. Mission Plank Road now has a twin toll road, Folsom Road, which makes the “O’Farrell Swing” to the south, towards Mission Dolores. Features on the map are discussed in the text that follows.

Map: David Rumsey Map Collection]

The same paper on the same day: “Another squatter affair took place yesterday morning, about ten o’clock, at the corner of First and Howard streets, nearly opposite the late squatter riot. The Marshal received information that a party of men who were armed were fencing in the lot, and immediately proceeded to the spot with a force of police, where he found a man named Peter McKinney engaged in fencing in a lot. . . . McKinney had brandished a pistol and threatened to shoot anyone who interfered with him.”

“Hope deferred maketh the heart sick,” editorialized the Alta in September 1854. “Some months ago, the city of San Francisco was in a state of turmoil and excitement, resulting from the encroachments of squatters. Life as well as property was in danger, nightly riots and brawls disturbed the peace.” The hope of the Alta was for speedy decisions by the Land Commission to settle boundary disputes of the city.

With the fury of a man who has witnessed the process that worked for no one but lawyers, Bancroft wrote in 1882: “It was to the Californians owning lands under genuine and valid titles, seven eighths of the claimants. . . that great wrong was done. They were virtually robbed by the government that was bound to protect them. As a rule, they lost nearly all their possessions in the struggle before the successive tribunals to escape from real and imaginary dangers of total loss. The lawyers took immense fees in land and cattle, often for slight service or none at all. It was in no sense the protection promised by the treaty to finally confirm a title after a struggle of eight to twenty-five years when half or all of the estate had passed from the possession of the original claimant; it was simply confiscation, and that not in the real interests of the United States, or of American settlers, but of speculating land sharpers. ”57

It was the considered opinion of most observers that if the 700 valid claims had been confirmed immediately, the owners of these ranchos (who were invariably hard pressed for cash) would have gladly sold small tracts to settlers for homes and farms at the most reasonable prices. The continuing uncertainty about the ownership of the lands of the Potrero and Mission Bay was prolonged until the late 1860s; meanwhile squatters moved on to the vacant land. “Every occupant felt that his possession was threatened by squatters on the one hand or by grant-owners on the other; neither the squatters nor the grant-owners could sell, or dared to invest in expensive improvements, thus population was driven away, industry was stifled. ”58

A Confidential Letter from Jasper O’Farrell

This previously unpublished letter from the California Historical Society file of surveyor Jasper O’Farrell suggests that internal machinations within claimants’ families may have added to the legal complications on these large land grants.

“Confidential to Friend MacCorkle, Sonoma City,” from Jasper O’Farrell, dated “Wednesday, 7 Dec. 10 am/ 18—” [1859, or 1864 by perpetual calendar]: “. . . F. de Haro was a Sergt. in the troop of Col. Vallejo some 26 years ago when he was Commandante de Yerba Buena. The Sgt. had a wife—young and beautiful—for possession and enjoyment of whose charms the Col. yearned but in vain. The husband’s presence kept the wife true and virtuous, it was necessary to get rid of him in some way. Gov. Alvarado (a nephew of the Col.) had to transmit dispatches to his government in Mexico. Sgt. de Haro was recommended by his Col. and was appointed and accepted the honorable and responsible position as envoy with tears of gratitude; leaving his young wife and two children under the protection of his dear friend—the Commandante. The consequence was the wife. . . was seduced and before [de Haro’ s] return (but about twelve months after his departure) was delivered of twin daughters which were easily palmed off on the poor Sgt. as his own by adding a few months to their age upon his return. . . . Some seven or eight years ago the Legislature of California passed a law making females of 18. . . competent. . . it was [passed?] through the legislature by agents of the Col. (now General). The twins above mentioned were heiress to a valuable tract of land near San Francisco (El Potrero); the General wanted it. The girls were the age mentioned in the law and were made competent by the law to sell their property. . . . The General had an interview with them and, base of all baseness, informed them of their Mother’s shame. And that he, not de Haro was the author of their birth. Their Mother was dead. They. . . were being educated by the Sisters of Notre Dame at San Jose. . . they were high minded, educated and refined. Can you imagine the depth of his infamy-to destroy the happiness of innocent children. . . . It was necessary that his advice as Father be followed so they sold the Potrero. . . for one fourth its value. Do you see the motive? I do!. . . . could he by a little maneuvering. . . have the lion’s share. . . ? I can convince him of the utter hopelessness of the heirs of the de Haros ever being able to sustain a successful suit. . . . ”59

In this last statement, O’Farrell’s prediction was accurate. Other aspects of the letter are also correct. A census of inhabitants in San Francisco in 1842 lists Francisco de Haro as being 50 years old with eleven children, apparently a recent widower, as he has an infant son. Twin girls listed as Cadria and Carlotta are aged nine, putting their births in 1833 (depending on the month they were born and the precise dates of the census). 60

The California Statutes state in 1854, “Males shall be deemed of full and legal age when they shall be 21 and females when they shall be 18 years old. Males and females of legal age as fixed by this act shall be competent to . . . convey real estate. . . .”61

Vallejo was commandante of the San Francisco Company in 1831-32, but the question of de Haro’s whereabouts is less easily ascertained. In 1831-32 de Haro is listed as “Suplente de la diputacion,” which, however, does not enable us to precisely fix his location.62 Whether de Haro was in Mexico for a year at that time is debatable. He was not in the army, having resigned in 1824, but he would have been available for such a mission by virtue of his education and his record of public service. Further research may answer some of these unresolved questions.

This is chapter five of "Vanished Waters: A History of San Francisco's Mission Bay" published by the Mission Creek Conservancy, and republished here with their permission.


52. Theodore Hittell, History of California, vol. 1 :226.
53. Bancroft, History of California, vol. 4:576.
54. Theodore Hittell, History of California, vol. 2:754.
55. J.S. Hittell, The History of the City of San Francisco. 181-182.
56. U.S. Patent Book #204797, Plat of Pueblo Lands of San Francisco, December, 1883. F. Von Leight, U.S. Deputy Surveyor, Ms. in Archives of the City of San Francisco, Recorder’s Office.
57. H. H. Bancroft, History of California, vol. 4:576-577.
58. Ibid. 577.
59. Jasper O’Farrell’s letters concerning surveys and propertv in the San Francisco area. Ms. at California Historical Society.
60. “Census of the inhabitants of both sexes in the jurisdiction of San Francisco for the year 1842.” Original signed by Francisco Sanchez, 1842. Typescript ms. at California Historical Society. Francisco de Haro’s wife, Emiliana, was the daughter of Jose Sanchez, owner of the Rancho Buri Buri, located south of C. BernaJ’s rancho in south San Francisco. “California Rancho Under Three Flags,” California Historical Quarterly, vol. 17. No. 3 (September, 1938), 255.
61. California Statutes (May 10, 1854), Chapter XXXIX, Sections 1 & 2:44.
62. Bancroft. History of California, vol. 3:187ff. “Suplente de la diputacion” means Alternate Representative of the Federal Mexican Congress.

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