1869 Tidelands Map
Tidelands Auction Map, 1869. This portion of the official Board of Tideland Commissioners Map #3 shows some of the water lots to be auctioned in November 1869. The map is interesting because it shows a proposal to continue Channel Street’s canal to Seventh Street at a width of 140 feet, then to angle and narrow it to meet the mouth of Mission Creek at a width of 60 feet. The irregular line of salt marshes is the “Red Line of Mission Bay.” Inside the “Red Line” are water lots that were sold during the Peter Smith sales of 1853. The confusion over these various boundaries led to legal battles.
The “Act to survey and dispose of certain salt marsh and tidelands belonging to the State of California” ordered the governor to appoint a Board of Tidelands Commissioners to “take possession of all the salt marsh and tidelands lying under water. . . belonging to the State of California. . . surveyed to a point not beyond twenty-four feet of water at the lowest stage of the tide. . . .” All such real property to be mapped and sold at public auction. Streets, docks and piers, canals and drains were reserved to the city of San Francisco.
The Southern Pacific and Western Pacific railroads were granted 30 acres each, exclusive of streets, basins and public squares, on land south of Channel Street and outside the redline waterfront of Mission Bay.96 In addition the railroads were given a right-of-way not to exceed 200 feet in width. In return the railroads had to agree to spend $100,000 within thirty months to construct a San Francisco terminus. After the time was extended in 1872, the Mission Bay railroad terminus was completed.
The Tideland Commissioners were to have the power to settle claimants’ disputes over water lots and to sell the tidelands as mapped and surveyed. All public monies were conveyed by the commissioners to the state. The three-man Tidelands Board appointed by Governor Haight was a powerful body, and it could be said to the commissioners’ credit that there was little criticism of their mode of operation, carried out as it was under the spotlight of every newspaper in San Francisco. They were to be involved in endless hearings of rival claims, sometimes stacked five deep on a single lot.
Trouble on Mission Creek: Squatters Riot
What was to prove one of the more troublesome sections of the 1868 Tidelands Act stated, “Where any settler was on the first day of January, A.D. 1868 in bona fide actual possession of any one lot by himself or tenant, and any additional lot in which he shall have had substantial improvements at the time aforesaid . . . may purchase such lot. . .” prior to public auctions, in effect, at private hearings before the Tidelands Commission.97 As can well be imagined, Mission Bay squatters (who preferred to be called “settlers”) interpreted the phrase “substantial improvements” as being fine-tuned to their own interests, since many of them were living in houses on the banks of Mission Creek and on filled portions of Mission Bay. “Bona fide actual possession” was seen as an endorsement of the principle of “squatters’ rights,” an idea long cherished in the Potrero and Mission Bay.
One cloud that hung over Mission Bay-Potrero lands was the long and exhausting legal efforts by Mexican claimants, in this case the de Haros, to clear their titles through the courts. In 1867 the de Haro claim to more than 2,000 acres near the Mission was rejected, as the courts ruled that the Mexican government had given the de Haros grazing rights but no clear title. On May 15, 1867 the Alta described the popular reaction: “At 7 o’clock a detachment of California Guard with two pieces crossed Long Bridge. . . they fired two hundred guns in honor of the settlers’ victory. There was another gun in the vicinity of North’s shipyard which also thundered forth a tremendous salute. . . . Early in the morning a mammoth bonfire was kindled on the highest point on Potrero Ridge . . . An impromptu meeting was held by the settlers. . . residents of the Potrero could breathe freely, now that this long contested controversy is settled. . .”
But having the major Mexican claim laid to rest by the Yankee courts gave all the more importance to the Tidelands Bill statement regarding “bona fide actual possession,” which was taken to mean “being there.” Rival claimants, some with titles going back to 1846, others to 1851 (with the sale of the Peter Smith water lots), moved into Mission Creek with pile drivers and a scow schooner armed with cannon (quickly dubbed the “Mission Creek Gunboat”); using pistols and knives they fought it out for possession.
On November 19, 1868, the Alta noted, “It will be remembered by our readers that within the past year Mr. Charles P. Duane shot Mr. Ross on Merchant Street for an alleged interference in this matter of title to lands. Yesterday morning, about 3 o’clock, several men made their appearance upon the ground and demanded possession. During the skirmish a man named Baxter was seriously wounded.” And again, a week later, “The trouble on Mission Creek continues . . . the police have charge of the pile driver, mud-scow, or ‘gunboat,’ and they have instructions to allow no one on board. . . if parties owning the gunboat make any attempt to move it, and if those who ran the pile-driver on disputed territory attempted to use it, riotous proceedings would follow.” Some sixty men fought it out on Mission Bay’s Block 40. Several were seriously wounded; that no one was killed was probably a matter of luck rather than restraint. Block 40 lay between Berry and Channel streets and Seventh and Eighth streets. The block as shown in 1869 is partially in the salt marsh and partially under the waters of Mission Bay.
By 1876 the State Senate had appointed the Mission Creek Investigating Committee to look into disputed tidelands decisions. In one such case, the commissioners gave Duane title to more than two and a half blocks of land “that should have been sold at public auction for the benefit of the state,” according to the San Francisco Bulletin on January 19, 1876. Duane, in fencing his tract, included his house on the upland that adjoins his tideland water lots. The Bulletin contended that the commissioners had no jurisdiction on the dry land portion of Duane’s land and the fence on the tidelands portion was not sufficient improvement. “Duane was not the only one who obtained valuable salt marsh and tidelands by virtue of a house built on high ground. How about Ellis himself? Let the investigation at Sacramento be thorough.”98
“The Ellis Land Grab Case” was fought in the 4th District Court in January 1877, as well as on the muddy banks of Mission Creek. Duane’s land and many more blocks were involved in a far more expansive scheme. Part of the problem stemmed from the lack of precise definition of the boundaries of the original San Francisco Pueblo Grant. Ellis found it useful to claim that the winding line of Mission Creek was the pueblo boundary and the Tidelands Commissioners had agreed, considering the overflow lands to be within their jurisdiction. Thus they gave Ellis clear title to land he claimed to have owned since 1853. Ellis now enlarged his claim to include “all land on either side of Mission Creek, from Nineteenth Street to Channel Street and including the overflow land adjacent to the creek, property valued at something like $4,000,000. There are several hundred claimants who are defendants in this section.”99
The Ellis claim was denied by the U.S. Circuit Court on July 29, 1878, when it rendered a decision that the pueblo lands of four square leagues (granted to Yerba Buena and confirmed to San Francisco on May 18, 1865) included the swamp land, “that is, the eastern boundary of the city follows the line of the ordinary high water, crossing the mouths of streams, and not following their banks. ”100
In another case, Tripp vs. Spring, Judge Field made a statement that had far-reaching consequences to the property holders in Mission Bay and the Potrero, when some twenty-two entire blocks were under disputed title: “Mission Creek never constituted any portion of the Bay of San Francisco any more than the Sacramento River constitutes a portion of the Bay of Suisun, or the Hudson River a portion of the Bay of New York. . . The boundary of the tract [confirmed to the city as part of the Pueblo] runs along the Bay on the line of ordinary high water mark, as that existed in 1846, crossing the mouth of creeks running into the Bay, and that of Mission Creek, among others. The boundary would have been a singular one had it followed the windings of that creek and its branches, wherever the tide-waters of the Bay may have flowed.”101
Judge Field’s opinion had the further salutory effect of giving the settlers in the Potrero and Mission Bay what they had wanted, peace from further challenges of any real importance to their presence.