Judge Raymond Thompson
Orange Countiana I (1973)
The cited case (64 Cal. 185) is of no great consequence as a legal decision, but the outcome was of vast importance to the development of Orange County. The transcript is a rich mine of local historical information going back as far as 1812. Anaheim Water Company, incorporated in December 1859 to furnish water for Anaheim Colony, and the plaintiff owners of vineyards and town lots in the colony contended by this suit filed in 1877 they had the right to keep their ditch full of water from the Santa Ana River at all times regardless of short supply and whether the newer communities of Orange, Tustin, and Santa Ana might be without water.
If Anaheim had prevailed in the Supreme Court, as it did in the trial court, the history of Orange County might be quite different. The Anaheim Water Company had easements granted September 1, 1857 by Don Bernardo Yorba and Don Juan Pacifico Ontiveros over a strip of land across their ranchos to the Anaheim tract for a water ditch, of capacity to convey water sufficient to irrigate 1,200 acres of land, from the Santa Ana River to the Anaheim Colony.1 The Anaheim Colony, having been developed in reliance upon having water from this ditch and being prior in time to Orange, Santa Ana, and Tustin, claimed the defendants, including Semi-Tropic Water Company, which furnished water to these last mentioned communities, were stopped to deny plaintiff’s right to a full ditch. Plaintiffs also claimed this right by prescription and by implied grant.
The Superior Court ruled in favor of Anaheim, but the Supreme Court reversed holding there could be no estoppel or acquiring of prescriptive rights during a period when there was plenty of water for everyone and no one suffered by Anaheim having its ditch full at all times. The claim of grant was rejected because the easements from Yorba and Ontiveros only described the right to have a ditch capable of carrying a certain amount of water, but no grant of a water right per se. Furthermore, Don Bernardo Yorba and Don Juan Pacifico Ontiveros were only two of several riparian owners and could not alone grant any such right.
The Supreme Court wisely suggested, rather than retry the case, the parties save their money and get together and try to work out an amicable adjustment.2
It is the transcript on appeal, containing the testimony, exhibits, and findings of the Court that is most interesting and informative and is the concern of this article. From this transcript, we learn of the farming, irrigation, and life generally of the first Spanish settlers, land grants, location of their homes, and similar matters. We also have a complete legal history of the founding of Anaheim and much of its general history. We learn, too, of the founding of the towns of Richland (later renamed Orange), Tustin, and the present town of Santa Ana. The community then known as Santa Ana at the time of the starting of the Anaheim Colony was located at the present location of Olive.
The Anaheim story as fully developed in the transcript briefly is as follows: In 1856 a group of 50 Germans living in San Francisco decided to find a location and found a colony to grow grapes and manufacture wine. They hired George Hansen, surveyor, as their superintendent who located a suitable parcel of land comprising of 1,165 acres on the Rancho San Juan Cajón de Santa Ana.3 Hansen purchased this property from Juan Pacifico Ontiveros paying $2.00 per acre and took title in his name and that of John Frohling. Interesting and typical of the old California era was the fact that Ontiveros and his wife, although owners of a vast estate and thousands of cattle, signed the deed by mark. The Cajón Rancho of 35,970 acres had been granted to Ontiveros in 1836 by Governor Juan B. Alvarado.
Originally, this German group was an unincorporated society but upon the purchase of the land, they incorporated under the name of Los Angeles Vineyard Society, and title was transferred from Hansen and Frohling to the Society. Hansen also purchased the easement, previously mentioned, for a water ditch from Bernardo Yorba for $400 (again taking title in his name and that of Frohling) which was likewise transferred to the Society after its incorporation.
Each colonist became a stockholder in Los Angeles Vineyard Society and contributed $1,400 with the understanding that when the land was surveyed, water brought in, and the vineyards planted, he would receive a 20.4 acre vineyard and a town lot on the center of the tract. Hansen hired a crew of workmen, mostly Indians, necessary teams and equipment, constructed a ditch from the river to the Colony diversion dam, brought in the water and planted the vineyards, so that in 1859 it was ready for the colonists who then started moving upon the property. Twelve or fourteen came down the first year. The vineyard and town lots were allotted by chance and adjustment made for variation in appraised value. In January of 1860 deeds to their vineyard and town lots were given to the colonists from the Society. The corporate existence of the Vineyard Society expired shortly thereafter.
The Anaheim Water Company was incorporated in January of 1860 and the Vineyard Society, whose corporate existence was about to expire, deeded all of its property remaining after distribution to the colonists of their vineyards and town lots, including the ditch easements and all water rights to the Anaheim Water Company. The transfer was in trust that the Anaheim Water Company would hold this property and these water rights for the benefit of the colony and would furnish water to the colonists for irrigation on a non-profit basis. The owner of each vineyard lot received one share of stock in the water company. The water company charged for water sold, but often not sufficient to pay all of its expenses, so that from time to time the stock was assessed. The stock was not appurtenant to the land, but as a practical matter had to stay with the land, otherwise there would be no source of water for irrigation and the land would be worthless.
Anaheim prospered, homes were built, business section developed, so that by 1877, the first year of short water supply, when the trouble started and this suit was filed. Anaheim had a population of about 1,200 and the total value of the property of the colony including the land and improvements was about $500,000 according to the testimony of several witnesses.
In the meantime, the Rancho Santiago de Santa Ana on the other side of the river (which as the exhibits show, was granted to José Antonio Yorba and Juan Pablo Peralta by the Spanish government on July 1, 1810) was partitioned in a Superior Court action in 1868.4 We have, in the transcript, much detailed history concerning the partition and complete chains of title to such pioneer land owners as Spurgeon, Tustin, McFadden, Watson, Chapman, Glassell, and others, from the Spanish grant to the date of partition. As to developments on this rancho was of the river, A.B. Chapman testified:
“My earliest knowledge of the Rancho Santiago de Santa Ana was in 1865…. I bought some interest in the ranch, and during those years, from 1865 to 1868, I acquired the interest shown on the map. The partition was made in 1868. I went with Captain Glassell to have a survey made of my interest … I think that was in 1869. That survey was completed in 1870 and my own lands divided up into smaller tracts…. I commenced work, I think, in the winter of 1870 and 1871, and I think water for the purposes of irrigation flowed down as far as Orange through that ditch in the month of July, 1871…. The ditch was eight or nine miles long…. Any person had a right to buy the water and irrigate his lands…. I own land bordering on the Santa Ana River and on the Santiago Ranch…. I own the Stearns tract and became the owner of it before I built my ditch…. I think the ditch now extends down to Santa Ana…. The town of Orange is located partly on the Stearns tract and partly on the Chapman tract…. The town of Tustin is upon the tract marked Strafford and Tustin, containing 1,359 acres. In the summer of 1877 I suppose 250 people lived in that place and in its vicinity. At that time the town of Orange had probably 300 inhabitants, and the town of Santa Ana two or three thousand.5 In 1877 the people of those towns were largely engaged in raising young fruit trees, and they derived all the water used for irrigation, domestic and other needs from the Chapman ditch and its successors…. Perhaps I have put the population of Santa Ana too high. It may be that there are 5,000 people on that side of the river … I may overestimate it…. I cannot tell how many acres of land were irrigated in 1877, but I suppose not less than 5,000…. The town site of Orange was laid off in 1870 or 1871 by Captain Glassell and myself. The town of Santa Ana was laid out at the same time. At that time I went to Santa Ana and there were two or three men there in tents, a Mr. Spurgeon and two or three others. Santa Ana was not laid off by the same parties who laid off Orange. I was the father of Orange and Spurgeon and Bradford were the fathers of Santa Ana. Columbus Tustin laid off Tustin and lives there. These towns were subdivided into town lots for the purpose of speculation.”
An important issue in the case was whether water had been used for irrigation on the Santa Ana side of the river before the start of Anaheim, if so, the extent thereof. We, therefore, can read the testimony of old Juan Aguilar, who worked for the Yorbas commencing in 1831, the sons of Don Bernardo Yorba, and numerous other witnesses describing in some detail rather extensive farming operations, the ditches that were constructed, the location thereof, the amount of land under cultivation, the crops raised and similar matters.
Among the witnesses was J.J. Warner who testified:
“I first came into the town of Los Angeles in the latter part of the year 1831…. From the fall of 1833 until about 1844 I was a permanent resident…. Was quite intimately acquainted with Don Bernardo Yorba. Became so acquainted in 1834. I was frequently at his ranch in 1835, ’36, ’37. He was a stock-raiser and cultivated more extensively than any person upon the river. He did this mainly for his own consumption, and for that of his employees and servants, of whom he had a large number…. He had most of the cultivatable lands of the Santiago de Santa Ana under cultivation. From the early part of 1844, or the latter part of 1843, up to the close of 1846, I was frequently at his house…. I bought cattle from him at different places along there, and hence was familiar with his ranch … he also planted some vineyards about that time…. I was there after the flood of 1862; the cultivation had been changed very much, the zanjas had changed…. I was one of the commissioners who partitioned that ranch…. I became pretty intimate with that section of the country to the extend of my description in 1835. I had a young lady in that part of the country to whom I was then paying some attention.6
In the testimony at one people at least, the prejudice and differing temperaments of the Americans and the Californians appeared. A[ugust] Langenberger, one of the Anaheim group, testified:
“Thomas Yorba was dead at that time, but Teodocio7 was living. He was an energetic man at the card table and at horse races, otherwise not. He was not very energetic in the corn fields; he sowed very little. He had only a few vaqueros around. I don’t think many of them planted anything. Mrs. Carrillo irrigated a little vineyard, some trees and perhaps a few acres of corn. There were a few Indians and Sonorans living down on that part of the ranch; they lived mostly on bought feed. They bought their frijoles (beans), they were too lazy to raise them themselves. They raised some along the river as I have stated. I kept a store store, but I got no corn from them. José Antonio Yorba was then living there, but afterwards he moved away; he irrigated a little but not very extensively.”8
It is disclosed that Don Bernardo Yorba, in addition to his interest in the Santa Ana ranch, had received a grant of the Cañon de Santa Ana upstream and on the same side of the riveras the Anaheim Colony.9 Don Bernardo had died in 1858 and his heirs were defendants in this action.
1877 was a dry year, and although there had been minor difficulty previously, this year the Anaheim ditch for considerable periods was completely dry. In the testimony, the Anaheimers stated that the people on the Santa Ana side not only deprived them of their ditch full, but by threat of force and surreptitious diversion of the water, deprived them completely of any water. It appears that the Anaheimers, orderly and well-disciplined Germans, were not prone to violence; whereas the Santa Ana-Orange-Tustin people, of typical pioneer American background, were not averse to a least a show of force and threat of consequences. The Anaheimers complained that the Zanjeros (ditch keepers) of Santa Ana packed pistols, bowie knives and even kept a shot gun handy. Cross-examined on this point, one Hazen, Santa Ana Zanjero, testified, “Certainly I carried a pistol, I always do—everybody does.” Then asked about the bowie knife, he answered, “Of course, doesn’t everybody?” Upon being questioned by the Court as to the length of the blade, he casually said, “Well, I have it now,” and pulled it out of his belt and remarked, “The blade is possibly 8 or 9 inches long—big enough to carve up a Dutchman.” Then he hastily added he had no intention of actually carving Dutchmen, with a comment, “They don’t have much fight in them anyway.” Questioned about the shot gun, he admitted that was something a little extra, but said that some Mexican boys had told him that the Anaheim Zanjeros had referred to him as a son-of-a-bitch and threatened to cut the dam. The shot gun was just in case he had to stop anyone from cutting the dam.
The transcript contained complete copies of many historical documents such as the Articles of Incorporation of the Los Angeles Vineyard Society and the Anaheim Water Company, the various deeds, easements, abstracts of title and the like. It also, according to the testimony, contains an amusing incident when the county clerk was called to the stand to prove that articles of incorporation of the Los Angeles Vineyard Society had been filed with the county clerk. He testified, “Yes, I remember they were filed, but I’ve looked all over and they seem to be lost.” This was solved by the parties agreeing a copy could be introduced in lieu of a certified copy from the official record.
We observe, too, human witnesses 100 years ago were subject to the same frailties as witnesses today. They had great difficulty in estimating acreage, distances, quantities of water flowing in ditches or being used, and the like. One witness would estimate a certain field as 100 acres, which another witness would estimate as 10 acres. Pioquinto Davila, who had been employed by Bernardo Yorba as a school teacher for Bernardo’s numerous children and who, after Bernardo’s death, married Bernardo’s young (third wife) widow, was a witness. Don Pioquinto, in his testimony, apparently was having trouble estimating the quantities of water flowing in a certain ditch as well as the size of the ditch, and finally being pressed for some kind of an estimate and perhaps a bit ruffled, testified, “The ditch was large enough and the quantities of water sufficient to wash a lawyer!”
We make the acquaintance of the Los Angeles law firm of Chapman and Glassell, who were attorneys for Semi-Tropic and also witnesses in the case. This firm had represented a considerable number of the claimants in the partition of the Santa Ana in 1868 and charged those who did not have money one-fourth of the land they got out of the partition. They also had acquired certain interests by purchase and together owned well over 12,000 acres in the Santa Ana Valley. In order to utilize the property, they subdivided and founded the town of Richland, later re-named Orange. They acquired or took over a number of ditches which were originally dug by the Spanish Californians and combined them into what was first called the Chapman ditch, for the purpose of supplying water to the irrigable lands of the Rancho Santa Ana, particularly Orange, Tustin, and Santa Ana. The Semi-Tropic Water Company was organized for the purpose of holding title to water and ditch rights, and furnished water to these lands. By the time the case was tried, Semi-Tropic was taken over by Santa Ana Valley Irrigation Company.10 Chapman in his testimony referred to the land and the ditch throughout his testimony as the Chapman ditch or property, “my” ditch, or my property. When partner Glassell took the stand, he was very particular and specific to make it clearly understood that although the name Chapman was attached, he was an equal partner with Chapman and his interest was exactly the same as Chapman’s.11
The great flood of 1862 is mentioned and that it washed out almost all of the land being farmed by Don Bernardo Yorba on the north side of the river. Don Bernardo had four large ditches, one of which was to power a flour mill.12
I thought it interesting to learn from testimony in the case that Anaheim got its domestic water from wells, water being struck at a depth of only 14 feet.13
Another item is the fact that the by-laws of the Anaheim Colony and minutes were kept in the German language.
Anaheim was a lively place in 1877. According to the testimony of William R. Olden, “Anaheim was sort of a market place for the whole Santa Ana district. Hundreds of people came and it filled every Sunday – to much so for my peace.” Various witnesses testified as to crops, ditches, servants, and the like. The main crops prior to the Anaheim Colony were wheat, corn, beans, melons, pumpkins, grapes, and some fruit. A.B. Chapman testified that the oldest orange tree in the state was on the Tomás Yorba place, later called the Carrillo place, and at the time of the trial, the Watson place.14 He stated,
“The fruit trees are the largest I have ever seen and the land must be quite extra.”15
A.B. Chapman testified to the formation of the Santa Ana Valley Irrigation Company with 300 stockholders about 1877. This company took over the Semi-Tropic Company, acquired all ditches and water rights, and shares of stock were issued—one share for each acre owned by the stockholder. The company functioned on a non-profit basis for the benefit of its shareholders. Chapman testified that he believed that 20,000 acres would be the upmost amount of land of the Santiago de Santa Ana ranch that would require irrigation. He pointed out that in other locations the land was damp and there were artesian wells in abundance.
These are just a few items from the 556-page transcript. For the researcher and Orange County historian, there is much more to be found. A good-size book on the history of Orange County could be extracted from this document. It is not the purpose of this article to exhaust this source but only to indicate its extent and bring out some of the more interesting and entertaining disclosures.
- The title “Don” is only properly used with the first name of a person of quality.
- In this article I will only state matters that are actually contained in the transcript. Supplementary or explanatory information will be in footnotes. It is a fact the litigants followed the suggestion of the Supreme Court and made an agreement to divide the water equally at Bedrock Canyon.
- For convenience hereafter I will refer to this rancho as the Cajón or Cajón de Santa Ana.
- This rancho, sometimes known as Santiago de Santa Ana, was the only Spanish land grant completely in what is now Orange County. It contained 62,516.57 acres and extended from near present Corona to the ocean. Until the time of the partition, the heirs of the original grantees owned the great rancho in undivided interests. There had been an attempted partition in the Alcalde’s Court in 1857, but this was later held invalid. The other grants in present Orange County were Mexican. For convenience I will hereafter refer to this rancho as Santa Ana.
- Chapman was wrong. Five hundred would be closer to correct.
- Juan José Warner, a 6’4” Connecticut Yankee, nicknamed Juan Largo (Long John), had changed his American name from Jonathan Trumbull. He was grantee of the property well known today as Warner Springs Resort, but lost the rancho in foreclosure. He was active in California politics, was a senator and assemblyman, and editor of a newspaper in later life. He was the first head of the Historical Society of Southern California and co-author of a history of the area.
- Teodocio or Theodocio is correct in spelling.
- Langenberger was married to a daughter of Juan Pacifico Ontiveros and through that family connection acquired extensive and valuable property and became a very well-to-do man.
- Hereafter I will simply refer to this ranch as Cañon. Don Bernardo also owned La Sierra, four square leagues, and El Rincón, one square league, both upstream from El Cañon. Thus he could range his cattle from near present Riverside to the ocean on land in which he had ownership. He was part owner of the Santa Ana. A Spanish square league equals 4,439 acres.
- This company is still in existence.
- Chapman and Glassell have streets in Orange named after them.
- Undoubtedly this was the only water-power flour mill of that period in what is now Orange County. It indicates Don Bernardo’s enterprise. He was known as “El Rico” (rich one) and also as the “Spanish Yankee.” Unlike many Californios he did not get in debt, died a wealthy man, with all of his property clear, titles perfect, and owning many thousands of livestock and a chest of gold coin. His baronial estate on the north side of the river was a complete community. The two-story adobe contained thirty rooms not counting school room, harness and shoe makers’ rooms, together with quarters for servants and dependants. Trades people working there were four wool combers, two tanners, one soap maker, one butter and cheese man, one harness maker, two shoe makers, one jeweler, a plasterer, a carpenter, blacksmith, majordomo, errand boys, head sheepherder, cook, baker, two wash women, one woman to iron, four sewing women, dressmaker, gardeners, school master, and wine maker. He also operated a general store and bar for the convenience of travelers. Also a hundred or more Indian farm laborers were employed who were provided with rations and paid $3.00 per month. Too, there were numerous vaqueros (cowboys).
- The water level in Anaheim today is 150 feet below the surface.
- It would be interesting to know more about this “oldest orange tree.” It wouldn’t have been the oldest in California as there were orange trees at some of the missions before 1800.
- This was in Old Santa Ana, now part of Orange known as Olive. Present Santa Ana was founded by William Spurgeon in 1869 and laid out in 1870.