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Next: 18. Judge Burke’s DecisionContentsPrevious: 16. Fremont’s Activities

The Call of Gold (1936) by Newell D. Chamberlain


The Merced Mining Company resisted ejectment and the controversy was taken to Court. The trial started May 4, before a crowded court room and the whole town was filled with the interested and excited persons. By consent of both sides, the case was tried without a jury.

The attorneys for the Merced Mining Company were Alexander Deering and B. B. Harris, both residents of Mariposa, and S. W. Inge, Gregory Yale, Elisha Cook of the firm of Cook and Fenner, and the firm of Halleck, Peachy and Billings. The attorneys for Fremont and Boggs were Rufus A. Lockwood, H. G. Worthington and R. H. Daley, all of Mariposa, William T. Wallace (afterwards Chief Justice), Joseph G. Baldwin (afterwards Associate Justice of the Supreme Court), S. Heydenfeldt (former Associate Justice of the Supreme Court), Charles T. Botts and D. W. Perley.

The trial lasted for several weeks and it was the most exciting and important trial that had ever taken place in the history of the Mother Lode, for on its results depended the title of property worth millions and from which thousands of miners had been extracting gold and hoped to take out more.

The scene of this great legal battle over gold, was the court room on the second floor of the then three-year old Court House in Mariposa. (It is still being used and looks practically the same as it did then.) At one end there was the Judge’s Bench, long enough for three Judges to sit behind, but in this trial there was but one, namely Judge Edmund Burke, [Editor’s note: Ethelbert Burke—dea] stern and intelligent and realizing that he must be fair to both sides so as not to incur the enmity of any of the embittered miners, who might be provoked to take a shot at him, either in or out of Court; for in those days, every man carried a gun.

There being no jury, the chairs to the right of the Judge were used for the witnesses. In front of the Judge’s bench were two tables, around one of which were grouped the attorneys for the Merced Mining Company and around the other were the attorneys for Fremont and Boggs. The most prominent attorneys in the whole State had been engaged to participate in this most important trial.

For the spectators, there were three rows of long wooden seats, all hand-planed and with backs. The row on one side was filled with sympathizers for the Merced Mining Company, the row on the opposite side with Fremont’s supporters, while the center row was occupied by the more neutral or broadminded citizens looking for fair play. On the wall behind the Judge, was displayed a large American flag with thirty-one stars in the blue field, a silent appeal to law and order and the dignity of the occasion.

Colonel Fremont was there and sat near his lawyers, among whom the most conspicuous was Lockwood, a massive man, six feet in height, broad shoulders, large head, big gray eyes under heavy protruding eye-brows, sharp facial features and a deep stentorian voice. Lockwood, throughout the trial, seemed perfectly poised, keenly alert and master of every situation that arose. In cross examining one of the witnesses, whose veracity he doubted, he asked just one question, “Would you believe your own self under oath?” The effect was dynamic.

The attorneys for the Merced Mining Company introduced testimony to prove that the Fremont Grant had not been located in conformity with its description, that instead of having the Sierra Nevada, or Snow mountains, as its eastern boundary, it had been located entirely in the Snow mountains and further that the governmental survey had been made in a secret manner; that while it was being made, the surveyors informed men working for the Merced Mining Company that the survey was being made for a water ditch.

John F. Johnson, familiarly known as Quartz Johnson, a witness for Fremont, testified as follows:

“I have lived in the County since the winter of ’1849 and have lived on the Grant and know the larger portion of it. Some hills are covered with grass and shrubbery but there are hills that a rabbit couldn’t live on. About Bear Valley, there is as good grazing as any place about the hills. The Snow mountains are the Sierra Nevadas, about fifteen or twenty miles away.

“I believe a portion of the Grant was surveyed in June, 1855. Colonel Ransome was one of the parties and Mr. J. E. Clayton and about ten others. I asked them what they were doing and they said they were surveying the Fremont Grant. Clayton said he was making the survey without asking Fremont.

“I made a lease of the Mt. Ophir property to R. S. King, agent for Baldwin of New York, in January, 1851. King returned the lease to me in the Spring saying that he had been warned from working the premises by agents of John C. Fremont.

“I first saw the adobe building in Mariposa in 1851 and it was occupied by Fremont’s agents, Heap and Flanding. They resided there until 1852, when Bradford Jones, another agent came. Now Lockwood and Worthington occupy it. I have no interest in this suit. I am not in the employ of Biddle Boggs or Fremont, nor have ever been. I am in employ of Lockwood, who is agent for Fremont in some matters.”

Thomas W. Long, County Surveyor, testified for Fremont, as follows: “I have lived here since February, 1855. I think I know the Sierras, it’s a matter of opinion, twelve to twenty-five miles distant. I call Snow mountains where there is snow most of the year. The deepest snow I ever saw fall on Las Mariposas was about three or four inches deep, in April, 1856, and it melted very rapidly.

“The survey was not a secret. Bradford Jones was agent for Fremont for a few months, then J. E. Clayton became agent for the month of July, 1855, and the Grant was surveyed the fore

Mariposa in 1859
[click to enlarge]
Mariposa in 1859.
part of that month. I was with the surveying party for four or five days. Colonel Ransome was in charge; he is chief clerk in the Surveyor-General’s office. Young Higley seemed to be in charge as dispute surveyor. [Editor’s note: Deputy Surveyor—dea]

“Fremont was not in the State at the time of the survey and Palmer, Cook & Company were not here. I came to survey a water ditch and was employed in Sacramento by George W. Wright of Palmer, Cook & Company to act as engineer for Fremont. I have never seen Fremont and have never had any conversation with Cook or Jones, regarding the survey of Las Mariposas. I knew Colonel Ransome was coming in July, to make the survey, from a note I received from Wright.”

The attorneys for the Merced Mining Company introduced testimony showing that Fremont had never claimed any land within one or two miles of the Mt. Ophir property and that their client had been working this property peaceably and paying the taxes on it since 1851.

Fremont’s attorneys countered with the following argument: that their client’s claim, under the grant, was to no specific tract, that it was only an interest to a specified quantity, namely, 44,000 acres, to be afterwards surveyed and laid off by officers of the government; that Fremont, evidently, thought otherwise and hence made his survey in 1849 and claimed a specific tract, but his title did not become perfect until after the approval of the official survey, after the decision of the Supreme Court of the United States, in his case; that any statements he made, previous to this final survey were clearly made under a misapprehension of his rights and were not more than an expression of opinion as to what ought to be its location or a desire where it should be located.

The Merced Mining Company’s attorneys then argued that the grant of 44,000 acres by the Mexican Government to Alvarado, was for grazing and agricultural purposes, only, and did not convey the minerals and further that Fremont, in securing his patent, misrepresented the character of the land.

Lockwood arose and addressed the Court:

“Your Honor, I personally appeared before the Supreme Court of the United States, in behalf of Colonel Fremont. At that time, the Attorney-General of the United States resisted the confirmation of Fremont’s claim upon the ground that the Grant embraced mines of gold and silver. I quoted authorities to the Court showing that, under the mining laws of Spain, which laws had been adopted by Mexico and were in force when the Grant was first made, the subsequent discovery of a mine of gold and silver does not destroy the title of the individual to the land granted. The Court sustained this view and further stated that the only question before the Court was the validity of the title, and it is evident that this was proven because the Government issued a patent to my client.

“There was no obligation upon Fremont to give notice of the survey to the Merced Mining Company or anyone else, for under the grant from the Mexican Government, the survey was to be made by an officer of the government. That right which the Mexican government reserved to control the survey, passed with all other public rights to the United States. Therefore, the survey had to be made under the authority of the United States, and in the form and divisions prescribed by law for surveys in California, embracing the entire grant in one tract and giving it such form as not to impair the value of the adjoining public domain. My client, Fremont, applied to the proper officers, but that he employed any means to improperly control their actions, there is no evidence and that the survey was made secretly or concealed after it was made, is contradicted by testimony.

“And, finally, Your Honor, the patent, which is the final document issued by the Government is conclusive evidence of the validity of the original grant and of its recognition and its confirmation, and of the survey and its conformity with the confirmation and of the relinquishment to the patentee of all interest of the United States in the land. There was no reservation of minerals, therefore, the minerals must belong to Colonel Fremont.”

Next: 18. Judge Burke’s DecisionContentsPrevious: 16. Fremont’s Activities

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