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Next: Chapter 13IndexPrevious: Chapter 11

In the Heart of the Sierras by James M. Hutchings (1888)


CHAPTER XII.

CONGRESSIONAL AND STATE ENACTMENTS CONCERNING YO SEMITE.

Think that day lost whose low descending sun
Views from thy hand no noble action done.
Robart.
That action is best which procures the greatest happiness for the greatest numbers.
Hutcheson’s Moral Good and Evil.
I have always thought the actions of men the best interpreters of their thoughts.
Locke’s Human Understanding, Book I.

While some of the occurrences narrated in preceding chapters were transpiring, the Hon. John Conness, U. S. Senator for California, in concert with Mr. I. W. Raymond and others, conceived a plan for the cession, by Congress, of the Yo Semite Valley, and its more immediate surroundings, with the Mariposa Big Tree Grove, to the State of California, for the purpose of setting them apart, and protecting them as public parks. Mr. Conness accordingly introduced the following bill in the United States Senate, which was promptly passed by both branches of Congress:—

An Act authorizing a grant to the State of California of the “Yo Semite Valley,” and of the land embracing the Mariposa Big Tree Grove.

ACT OF CONGRESS GRANTING YO SEMITE TO THE STATE.*

[* See United States Statutes at Large, for 1864, page 325.]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That there shall be, and is hereby, granted to the State of California the “cleft” or “gorge” in the granite peak of the Sierra Nevada Mountains, situated in the county of Mariposa, in the State aforesaid, and the headwaters of the Merced River, and known as the Yo Semite Valley, with its branches or spurs, in estimated length fifteen miles, and in average width one mile back from the main edge of the precipice, on each side of the valley, with the stipulation, nevertheless, that the said State shall accept this grant upon the express conditions that the premises shall be held for public use, resort, and recreation; shall be inalienable for all time; but leases not exceeding ten years may be granted for portions of said premises. All incomes derived from leases of privileges to be expended in the preservation and improvement of the property, or the roads leading thereto; the boundaries to be established at the cost of said State by the United States Surveyor-General of California, whose official plat, when affirmed by the Commissioner of the General Land Office, shall constitute the evidence of the locus, extent, and limits of the said cleft or gorge; the premises to be managed by the Governor of the State with eight other Commissioners, to be appointed by the Executive of California, and who shall receive no compensation for their services.

Sec. 2. And be it further enacted: That there shall likewise be, and there is hereby, granted to the State of California the tracts embracing what is known as the “Mariposa Big Tree Grove,” not to exceed the area of four sections, and to be taken in legal subdivisions of one quarter section each, with the like stipulation as expressed in the first section of this Act as to the State’s acceptance, with like conditions as in the first section of this Act, and to be taken in legal sub-divisions as aforesaid; and the official plat of the United States Surveyor-General, when affirmed by the Commissioner of the General Land Office, to be the evidence of the locus of the said Mariposa Big Tree Grove.

Approved, June 30, 1864.

The news of this generous donation was first made known to the California public through the columns of the San Francisco Evening Bulletin of August 9, 1864, as we had no railroads or telegraph lines across the continent in those days. In prompt responsive acknowledgement on the part of the State was issued

THE GOVERNOR’S PROCLAMATION.

State of California, Executive Department,
Sacramento, September 28, 1864.

Whereas, The United States, by an Act passed at the first session of the thirty-eighth Congress, has granted to this State the territory comprising the “Yosemite Valley and the Mariposa Big Tree Grove,” to be held and used for the purpose mentioned in said Act; and whereas it is also provided in the Act that the management and control of the tracts of land shall be confided to a Board of Commissioners to be appointed by the Governor.

Now therefore, be it known, that I, Fred’k F. Low, Governor of the State of California, by virtue of the authority in me vested, have appointed Fred. Law Olmsted, Prof. J. D. Whitney, William Ashburner, I. W. Raymond, E. S. Holden, Alexander Deering, George W. Coulter, and Galen Clark, said Commissioners, to whom is confided the management of the aforesaid tracts of land. And I hereby warn and command all persons to desist from trespassing or settling upon said territory, and from cutting timber or doing any unlawful acts within the limits of said grant.

All propositions for the improvement of the aforesaid tracts of land, or for leases, should be made to the Commissioners, through Fred. Law Olmsted, Bear Valley, Mariposa County.

In testimony whereof, I have hereunto set my hand and caused the Great Seal of the State of California to be affixed, this twenty-eighth day of September, 1864.

[L. S.]                                 FRED’K F. LOW.
                                                                Governor of California.

Attest: B. B. Redding, Secretary of State.
        By F. W. Redding, Deputy.

During the sixteenth session of the State Legislature was enacted the following:—

ACT OF ACCEPTANCE.

An Act to accept the grant by the United States Government to the State of California of the Yosemite Valley and the Mariposa Big Tree Grove, and to organize the Board of Commissioners, and to fully empower them to carry out the objects of the grant and fulfill the purposes of the trust. (Chap. DXXXVI of the Statutes of California passed at the 16th Session of the Legislature, 1865-66.)

Whereas, By an Act of Congress entitled an Act authorizing a grant to the State of California of the Yosemite Valley, and of the land embracing the Mariposa Big Tree Grove, approved June 30, A. D., 1864, there was granted to the State of California in the terms of said Act said Valley and the lands embracing said Grove upon certain conditions and stipulations therein expressed; now, therefore,

The people of the State of California, represented in Senate and Assembly, do enact as follows:—

Section 1. The State of California does hereby accept said grant upon the conditions, reservations, and stipulations contained in said Act of Congress.

Sec. 2. The Governor, and eight other Commissioners, Frederick Law Olmsted, Prof. J. D. Whitney, William Ashburner, I. W. Raymond, E. S. Holden, Alexander Deering, George W. Coulter, and Galen Clark, appointed by him on the twenty-eighth day of September, eighteen hundred and sixty-four, in accordance with the terms of said Act, are hereby constituted a Board to manage said premises, and any vacancy occurring therein from death, removal, or any cause, shall be filled by the appointment of the Governor. They shall be known in law as “The Commissioners to manage the Yosemite Valley and the Mariposa Big Tree Grove,” and by such name they and their successors may sue and be sued, and shall have full power to manage and administer the grant made and the trust created by said Act of Congress, and shall have full power to make and adopt all rules, regulations, and by-laws for their own government, and the government, improvement, and preservation of said premises not inconsistent with the Constitution of the United States or of this State, or of said Act making the grant, or of any law of Congress or of the legislature. They shall hold their first meeting at the time and place to be specified by the Governor, and thereafter as their own rules shall prescribe, and a majority shall constitute a quorum for the transaction of business. They shall elect a President and Secretary, and any other officers from their number as their rules may prescribe.

Sec. 3. None of said Commissioners shall receive any compensation for their services as such. They shall have power to appoint a Guardian either of their number or not, of said premises, removable at their pleasure, to perform such duties as they may prescribe, and to receive such compensation as they may fix, not to exceed five hundred dollars per annum.

Sec. 4. The Commissioners shall make a full report of the condition of said premises, and of their acts under this law, and of their expenditures, through the Governor, to the Legislature, at every regular session thereof.

Sec. 5. The State Geologist is hereby authorized to make such further explorations on the said tracts and in the adjoining region of the Sierra Nevada Mountains as may be necessary to enable him to prepare a full description and accurate statistical report of the same, and the same shall be published in connection with reports of the Geological Survey.

Sec. 6. It shall be unlawful for any person willfully to commit any trespass whatever upon said premises, cut down or carry off any wood, underwood, tree, or timber, or girdle or otherwise injure any tree or timber, or deface or injure any natural object, or set fire to any wood or grass upon said premises, or destroy or injure any bridge or structure of any kind, or other improvement that is or may be placed thereon. Any person committing either or any of said acts, without the express permission of said Commissioners through said Guardian, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.

Sec. 8. This Act shall take effect immediately.

Approved April 2,1866.

ADVERSE ACTION TOWARDS THE SETTLERS.

This liberal and conservative concert of action between Congress and the State of California. was doubtlessly made with the implied understanding that no private rights were in any way invaded or jeopardized thereby. In this, however, subsequent proceedings proved that both the contracting parties were in error; inasmuch as the Board of Commissioners, created by the forgoing acts, notified Mr. J. C. Lamon and myself—the only bona fide settlers—that we must take a lease of the premises occupied by us from them, on or before a given time; or, failing to do this, they would lease them to other parties, “and, early in the ensuing spring, take all necessary measures for installing the new tenants into possession.”

Under the beguiling hallucination that the Prťemption Laws of the United States were a sacred compact between the Government and the citizen, I took the liberty of notifying the Secretary of the Board, in reply, that in my judgment it would be time enough for the Commissioners of the Yo Semite Valley to exercise authority over my house, or my horse, or anything that I possessed, after they had proven a better title to either than I had got, and that I remained very respectfully, etc.

The Yo Semite Fall—Cho-lock—in early spring.
Photo. by S. C. Walker.Photo-Typo by Britton & Rey, S. F.
The Yo Semite Fall—Cho-lock—In Early Spring.
(See page 377.)

SUIT OF EJECTMENT COMMENCED.

Believing that bona fide settlers were entrenched and fortified behind the bulwarks of National Law as well as of right, and, never doubting of ultimate success, the march of improvement kept commensurate progress with the constantly increasing army of visitors. But about a year after the service of the notice above mentioned, the terms of which had been declined, a legal bomb was thrown into our midst, in the shape of “a suit of ejectment” against the writer, as a test case for all parties.

STATE ACTION IN THEIR BEHALF.

While this action was in abeyance in the District Court, a memorial to the State legislature was prepared, and numerously signed by a large majority of the prominent residents of the county of Mariposa, asking favorable legislation in behalf of the Yo Semite settlers. This was accorded by an Act passed in the Assembly by a vote of 55 to 9, and in the Senate with only two dissenting voices, surrendering to Mr. Lamon and myself all the State’s right and title to each of our quarter-sections. Resolutions were also adopted memorializing Congress for confirmation of the same. This act not receiving the approval of the Governor, H. H. Haight, it was carried over his veto, by a vote of 41 to 11 in the Assembly, and by 27 to 10 in the Senate, thus making it a State law, notwithstanding the objections of the Governor. By some kind of clerical hocus pocus, however, this enactment was spirited away (?) and could not be found in time for its incorporation among the printed laws of that session; although it had received the necessary signature of the presiding officers of both Senate and Assembly! It was afterwards resurrected from some vaulted recess of the State capitol, and is now among the archives of the Secretary of State.

Inasmuch as the State’s favorable course in our behalf required the indorsement of Congress, to give it full legal effect, and establish a perfect title in us to the land thus settled upon, the memorial adopted by the Legislature, and another numerously signed, from citizens, with a certified copy of the Act, were transmitted to Congress through the Hon. Geo. W, Julian, Chairman of the Committee of Public Lands, of the House of Representatives, asking Congressional action upon this question. Through the influence of Mr. Julian—who has always been the uncompromising friend of the settler—and the unanimous vote of the Committee of Public Lands, an Act passed the House embodying the necessary provisions, without a dissenting voice. Owing, however, I deeply regret to say, to the most grossly unfair and untruthful representations of its enemies, when the measure was considered in the Committee of Public Lands of the United States Senate, a majority of one caused an unfavorable report to be adopted by that committee; and no action was taken upon it in the Senate, before Congress adjourned.

Be it remembered that until Congress had ratified the action of the legislature of California in our behalf, the homes we had founded in this wild gorge of the mountains, and every dollar expended here, were in jeopardy, notwithstanding the beneficent provisions of the United States PreŽmption Laws. It is only just here to state that the Board of Commissioners considerately refrained from pressing their suit of ejectment, for a time, after State action in our behalf, pending that of Congress, for or against us; but, finally, calling it up for trial in the District Court, owing to its unquestioned equities, judgment was entered for defendant, and against the Board of Commissioners.

As notice of appeal to the State Supreme Court had been filed, and fearing that the same ruling might be made there in this as in the Suscol Ranch case, although widely differing to the latter in many of its conditions and merits, Congressional action was again sought. In hopes of preventing the defeat this time of so pre-eminently just a measure, by questionable if not positively dishonorable means, and to be present to meet any statement or inquiry, I visited Washington the ensuing winter, determined that the case should have fair play, if possible, whether it stand or fall thereby.

AN INCIDENTAL DIGRESSION ABOUT A VISIT TO WASHINGTON.

I hope to be forgiven for a short digression here, if only to show how an obliging act will sometimes secure for the doer the honor (!) of a title. During the summer of 1869—the year the great overland railroad was opened from Omaha to Sacramento—the “corps editorial” was largely represented from the Eastern States, as visitors to California and Yo Semite, and among them some from Washington, D. C. At that time the only turnpike-road nearing the valley still lacked twenty-five miles of completion, and the intervening space between the stage and the Valley being over a mountain trail, could only be traveled on saddle animals. As necessity required that I should supply these, and a certain kind of superintendence was needed, I had ridden to the western end of this intermission of country, and was returning, when I met a passenger far behind his companions, who was in trouble with his unpersuasive horse. I of course stopped, and asked the reason, when the following colloquy ensued:—

“Mr. H., I cannot induce this animal to keep up with the others. How is it?”

“He knows that you are a tourist, and is making the best of his knowledge.”

“What am I to do? At the rate I am traveling I shall not be able to reach the station by midnight.”

“Take my horse—he will carry you through, on time.”

“What! Change animals, here, on the road?”

“Certainly. Mine will attend strictly to business, and, when yours finds out that I am his rider, he will also make the discovery that I am not a tourist, and will give me no trouble.” The exchange was accordingly made, and, waving a hasty adieu, each started at a lively gait, in different directions. This gentleman proved to be one of the editors of a Washington evening paper.

Upon my arrival at the nation’s capital, and accidentally meeting the before-mentioned editor, he gave me most cordial greeting, with invitations to dine with him, etc.; and in the issue of his paper of that evening there appeared a notice that “Colonel H—— of Yo Semite, had arrived, and would be warmly welcomed by his many friends,” etc., etc. On the succeeding day we again met, and indulged in the following confab:—

“I see that I am promoted!”

“Yes! How is that?”

“I have always understood that I belonged only to the ‘full privates;’ but I see by your last evening’s —— that you have promoted me to be a Colonel!”

With a mischievous twinkle lurking in the corner of his eye, came the courteous reply: “Ali! that’s all right. When you have been a resident of Washington as long as I have, you will find that a stranger coming here, without a title, is placed, socially, at great disadvantage, and I thought you deserving of a good send off! Besides, whenever I have remembered that horse trade we made upon the mountain trail, I have laughed over the incident, many times. I am convinced that instead of promoting you to be a colonel, only, I ought to have made you a general—and will, next time(!).”

BEFORE THE UNITED STATES SENATE COMMITTEE OF PUBLIC LANDS.

Upon the reassembling of Congress, the Act which passed into the House of Representatives at its previous session, was again introduced by Mr. Julian, and again promptly passed by that body. Taking the usual course of similar measures, it was again referred to the United States Senate Committee of Public Lands. Deeply anxious that no act of omission or of commission on my part should endanger its successful consideration before that committee, (and let it not be overlooked that I was working in the interest of our little mountain homes) I first waited upon its chairman—then Senator Pomeroy, of Kansas—and explained to him the whole matter. Looking me straight in the eye, he thus addressed me:—

“Do you say, Sir, that you are a settler in Yo Semite Valley?” “I do, Senator.” “What is the actual date of your settlement there?” Responsive to this inquiry I supplied Senator Pomeroy, not only with the day of my settlement there, and that of those whose possessory rights I had purchased, but also with Mr. Lamon’s—the time and circumstances of which are narrated in the preceding chapter—accompanying these with the substantiating testimonials of prominent Californians, well acquainted with the facts. After a long pause the Senator again addressed me as follows:—

REPREHENSIBLE REPRESENTATION IN THE UNITED STATES SENATE.

“Mr. Hutchings, Sir, I am perfectly astounded at your statements, the proofs of which are positive and incontrovertible. Why, sir, I distinctly remember when the matter was under discussion in the United States Senate, putting this question to Senator Conness, the author of the Bill: ‘Are there any settlers upon that land?’—accompanying the question with the remark—’because, if there are, their rights must be respected,’ and the senator from California made answer, ‘No. Not one(!).’ With that assurance I gave my fullest support to the Bill.”

But for this foundationless statement, then, there can arise but little doubt that the rights of settlers at Yo Semite, as elsewhere, would have been protected. Here originated the wrong doing; and the successive troubles that beset and followed us in after years. And sacredly do I treasure, and would here most gracefully record, how steadfastly the sentiment and sympathy of the California public continued with us, to brighten and cheer us, even to the end. Subsequent action, also, abundantly proved that if the State, at any time, had desired the homesteads of the Yo Semite settlers, it would have made honorable provisions for acquiring them—not wrested them wrongfully away from them.

MISTAKEN “PUBLIC POLICY.”

“Public policy” was the misleading and delusive key-note struck for prevaricating and unprincipled opposition to the measure. “It was a question between forty millions of people and two men,” reasoned the adversary. (It is hoped that becoming credit will be accorded the “two men” for having pluck enough to “breast the breach” against “forty millions of people!”) Conceding this, would not the “forty millions"—a few of the meaner ones excepted, perhaps—have preferred the equitable acquisition of our legally obtained lands—legally obtained, if the PreŽmption laws mean anything, notwithstanding the technical rulings of the courts—than to wrest them wrongfully from us, even though it should have taken the one-thousandth part of one mill each, more or less, from the aforesaid “forty millions of people” to have accomplished this.

HOW INTERVALS OF LEISURE WERE EMPLOYED.

Of course necessary delays would continually occur in the action of Congressional Committees, and from other causes; delays that would have proven a heavy drain upon one’s patience as well as finances, had I not devoted the interim to the apparently accepted mission of my life—the dissemination of knowledge on the charming realities of Yo Semite. To accomplish the one, and subserve the other, therefore, in addition to frequent visits to Washington for conferences with Congressional members, I gave some eighty-seven illustrated lectures on Yo Semite, sometimes to audiences of over three thousand. The results of this action were three-fold; first, in giving pleasant occupation to leisure hours; second, by assisting my finances (Mr. Lamon being too poor to contribute anything); and, third, by inviting the interested attention of the public to the marvelous grandeur of the scenery of Yo Semite, that afterwards induced many thousands to visit it: And who, I trust, were never sorry for so doing.

TAKING AN UNFAIR ADVANTAGE.

Notwithstanding these opposing forces from without, a majority of the United States Senate Committee of Public Lands expressed themselves to the writer as holding the above-mentioned views of the case, and for favorably reporting the Bill; yet, in the absence of some friends of the measure, when its consideration was entertained in that committee, a majority of one was secured against it, just as that session of Congress was closing; when it was assigned to the unfinished business of the Senate—and consequently again to defeat.

RULINGS OF THE SUPREME COURTS.

Meanwhile, the Board of Commissioners appealed from the decision of the District Court, to the State Supreme Court, where, under the ruling of the Supreme Court of the United States, in the Suscol Ranch Case, while admitting in its decision that I was a bona fide settler upon the land before it was donated to the State, had lived upon it ever since with my family, and was ready at any time to prove up my preŽmption claim, and to pay the purchase money, whenever the land could have been surveyed, Ruled:—

“If a qualified preŽmptioner enter upon a portion of the public domain, with the intention to preŽmpt the same, and performs all the acts necessary to perfect his preŽmptive right, except the payment of the purchase price, the government may, nevertheless, at any time before the price is actually paid, or tendered, devote the land to another purpose, and thereby wholly defeat the right of preŽmption."—California Reports, July, 1871, Vol. 41, pp. 658-9.

Although this judgment was appealed, from the State Supreme Court to that of the United States, it was afterwards affirmed by that body, as their action could not be made retroactive from their decision in the Suscol Ranch Case.

POSSIBLY AN ARROGANT ASSUMPTION.

It may seemingly appear an act of supererogation, if not of arrogant assumption, on the part of any one, especially of lawyers who are eminent in their profession, to interpret the decision of the Supreme Court in the Suscol Ranch and Yo Semite cases—although not analogous in their equities—as traversing the well understood and beneficent provisions of the PreŽmption Laws, and subverting the covenantal principles of a general law to sub serve a specific purpose, and one that could have been better provided for some other way. There is evidently a broad foundation for questioning the soundness of this ruling, as the settler has an abundant surplus of difficulties to overcome, without their unnecessary increase, involving the title to his land. The “unpardonable sin” assumed to have been committed by the settlers at Yo Semite was twofold—one, in choosing so wildly picturesque a portion of the public domain whereon to form a home; and the other to stand up manfully in its defense, after some one else wanted it. Herein lay the extent of their sinning, and the heinousness of their offenses. Had their choice fallen upon some shelterless desert, no envious motive would have prompted a wish for claiming it, or for their dispossession.

After the legal status of the question had been determined by the courts, and Congressional action circumstantially deferred, the writer received numerous letters from representative Californians, asking him to forego any further efforts before Congress, until the will and wishes of the California public could be consulted in the matter. This was acceded to. And when the Legislature of 1874 assembled, an appropriation was made of $60,000 for the purpose of compensating the Yo Semite settlers for any financial loss they might sustain, by surrendering all their right and title to the State. For the purposes of carrying out the provisions of this enactment, three special commissioners were appointed by the Executive of the State, Gov. Newton Booth, who repaired to Yo Semite to ascertain the relative proportion of the sum appropriated that should be paid to each.

It should here be explained that in addition to the two actual settlers, there were two others that claimed indemnity for improvements; and, in order to avoid any future controversies upon this subject, it was resolved that these claims should also be considered and disposed of at this juncture. In order to arrive at a just estimate of the relative expenditures of each claimant, an expert was employed, who reported as follows:—

Improvements made by J. M. Hutchings, $41,000; James C. Lamon, $11,000; A. G. Black, $8,350; Ira G. Folsom, $4,000. Notwithstanding this showing by the expert, the following awards were made by a majority of the special commission:—

J. M. Hutchings, $24,000; Jas. C. Lamon, $12,000; A. G. Black, $22,000. Mr. Black was to pay Ira B. Folsom out of his award, but as Mr. Black and Mr. Folsom could not agree upon the amount to be paid the latter, the whole matter was brought up before the State Board of Examiners, as provided by the statutes, when the expert was summoned, and the merits and demerits of each award that had been made, relatively examined and discussed, and finally adjudged as follows: J. M. Hutchings, $24,000; Jas. C. Lamon, $12,000; A. G. Black, $13,000; Ira B. Folsom, $6,000—total, $55,000. The balance of the $60,000 appropriated was returned to the State Treasury. When the sums awarded had been accepted, and paid to the parties in interest, a quit claim deed was given by each, of all claims to either land or improvements, to the State. Thus ended the unequal contest, of many years, between the old Board of Yo Semite Commissioners and the Yo Semite settlers. Comment would be superfluous, as facts not only tell their own story, but suggest their own inferences.

Before closing this unvarnished recital, however, I wish to give special prominence to the magnanimous action of the State in favor of the settlers; first, in declining to take the least advantage of the adjudgment of the higher courts against them; and, second, in its recognition of the equities of their claim, by procuring for them a becomingly liberal appropriation, as compensation therefor; thus proving that the State requires no injustice or wrong to be committed in her name or visited upon any of her citizens however plausible may be the excuse for attempting it.

Since the passage of the Acts introduced at the commencement of this chapter the following Governors have been ex officio Presidents of the Board of Commissioners: F. F. Low, H. H. Haight, Newton Booth, Romualdo Pacheco, William G. Irwin, George C. Perkins, and George Stoneman.

The following gentlemen constitute the present Board of Yo Semite Commissioners: His Excellency Geo. Stoneman, President; I. W, Raymond, Vice-President; Wm. B. May, Secretary and Treasurer; Win. H. Mills, J. H. O’Brien, Thos. P. Madden, Jonathan Mentzer, E. W. Chapman, and J. M. Griffith.


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