on Mission Bay and the Marshes and Creeks of
Here were once in southeastern San Francisco bodies of water that have as completely disappeared as has mythical Atlantis and are legendary to the great majority of living San Franciscans. Unlike Atlantis, submerged in water by a cataclysm of nature, these waters have been smothered in earth debris deposited in them by the hand of man. Who of the present, or of the preceding generation, has heard of Mission Bay, Mission Creek, Precita Creek, or Islais creek (see Appendix A) except the channel of that name which is an artificial creation and is no part of what was once called Islais Creek. Who of an older generation knows that Islais Creek was a fresh-water stream that emptied into what was originally known as Du Vrees Creek, an estuary of San Francisco Bay? What history there is of these waters and of contiguous lands is to be found only in the statutes and decisions of the courts. The material for this article has been gathered from these sources.
This body of water was really a part of San Francisco Bay forming a cove in the shape of a half-moon. A line drawn from Steamboat Point, which was at the intersection of Third and Berry Streets, to the most easterly horn of Point San Quentin near the eastern end of Sixteenth Street marked the easterly boundary of the bay. Roughly, the waters of the bay at ordinary high tide were bounded by Townsend Street on the north, Eighth Street on the west and Sixteenth Street on the south.
Marshes, with intersecting sloughs, penetrated as far north as Mission Street between Seventh and Eighth Streets, and Folsom Street between Fourth and Eighth Streets. The penetration west and south was not so great but extended to the foot of the Potrero hills.
The legislature in 1851 confirmed an ordinance adopted by the Common Council of San Francisco granting a franchise for a toll road on Mission Street from Fourth Street to Center [now Sixteenth Street], and in 1860 the franchise was renewed for a term of five years, one of the conditions being that the grantees of the franchise should fill up with earth or sand the space on said Mission Street between Price [now Seventh] and Harris [now Eighth] Streets, or shall reconstruct the bridge now occupying said space. According to Hittell:
... the most expensive part of the work was a bridge several hundred feet in length over the ravine or quagmire near Seventh street before mentioned. It was intended to build the bridge on piles; but the first pile that was placed in position, though twenty feet long, was driven entirely out of sight by the first blow of the pile-It will be recalled that when the United States was contemplating the purchase of the site where the Post Office now is, it was claimed that it had been a marsh, and that in the earthquake of April 18, 1906, the land in Mission Street, in front of the Post Office (on Seventh Street), caved in, and that buildings in this area collapsed from subsidence of the land.
A franchise for a toll road on First Street from Mission Street to Folsom Street and along Folsom Street to Center, now Sixteenth Street, was granted on March 7, 1853. With reference to this Hittell says:
There was no delay in building the new road, though it ran for nearly half a mile across salt-A glance down almost any of the numbered streets from Third Street west will convey some idea of the extent of the marshes.
MISSION BAY BRIDGE
the legislature granted a franchise to David Blair Northrop, Horace Cole,
Elnathan B. Goddard, and associates to build a plank road or bridge from
or near the end of Fourth Street on the north side of Mission Bay to or
near the foot of Noble Street on the south side, but requiring the installation
of a draw in the center of the channel not less than twenty-
In 1863 the act was amended to make the southern terminus at the foot of Kentucky Street. At that time Kentucky Street existed only in the Potrero, the so-called foot being its northerly terminus at Sixteenth Street. The rest of the street to the north existed on a map only and is now Third Street. The bridge followed substantially the present line of Fourth Street from Townsend Street to where it intersects Third Street, and thence along the latter street to the Potrero.
Up to the time of the construction of the bridge, access to the Potrero was by boat or over San Bruno Avenue, and the bridge, popularly known as Long Bridge, opened up the Potrero by a more direct route. Many industries were located there, chief of which were the slaughter houses, glass works, rope walk, rolling mills and the dry dock at Hunters Point. A street car line, running from North Beach to Bay View Race Track, in Bay View Valley in the Potrero, crossed the bridge.
As the mouth of the creek was west of Seventh Street, it may be regarded as an estuary of Mission Bay. The channel, referred to in the franchise of Mission Bay Bridge, entered Mission Bay at about where Channel Street now is and after reaching Seventh Street turned due west and entered the mouth of Mission Creek.
The creek, in its windings, coursed westerly in what is now Division Street, turned southwesterly, crossing Alabama and Harrison Streets, and then proceeded due south between Harrison Street and Treat Avenue to Eighteenth Street. The marshes extended easterly to the Potrero and westerly in some places as far as Mission Street.
In 1854, the legislature declared Mission Creek, from its mouth as far as the tide flows, a navigable stream, but in 1874, all of that portion of the creek between Ninth and Eighteenth Streets was vacated as a navigable stream.
enough, although it has not existed for three-
The existence of Mission Bay and Mission Creek was responsible for the southward curve of the streets south of and parallel to Market Street after they pass Eleventh Street, and the eastward curve of the numbered streets south of Eleventh Street.
ISLAIS CREEK DISTRICT
For the purpose of this article Islais Creek district is that portion of San Francisco bounded on the north by Army Street, on the north by the Bay of San Francisco, on the south by Potrero Viejo, and on the west by San Bruno Avenue. It is that part of the Bernal grant known as Rincon de las Salinas, which, freely translated, means corner [or district] of the salt marshes.
These marshes were penetrated by an estuary of San Francisco Bay that was originally known as Du Vrees Creek, later as Islais Channel, and sometimes as Islais Creek. The name Du Vrees Creek appears on a contour map from a survey made in 1857-58. I have found no other mention of this name. On this map the creek appears as entering from San Francisco Bay and running first southwest, then southeast, and finally southwest. It is not, however, to be confounded with the fresh water Islais Creek described in Appendix A. All that is left of the estuary is its mouth lying easterly of the Southern Pacific Railroad. Most of that district has been filled in, but only one street has been constructed across it and that is Evans Avenue. While the district has not been entirely filled, the waters of San Francisco Bay have been effectually excluded. There are very few improvements in the district and they are at the eastern and western ends, the intervening space being for the most part covered by lumber yards.
Several sloughs branched from the main channel, and one, longer than the others, was known as Precita Creek, of which more hereafter. What was known as Islais Creek channel ran southwesterly from the bay to what was known as Bay View Turnpike, now Barneveld Avenue, at which point it turned southerly for a short distance along the easterly side of that thoroughfare. The legislature in 1868 declared Islais Creek from Franconia Landing, on or near Bay View Turnpike to its outlet into San Francisco Bay, and thence easterly along the southerly line of Tulare Street to the city water front on Massachusetts Street a navigable stream. No trace of Franconia Landing remains, but the reference to its being located on or near Bay View Turnpike would indicate that it was in all probability at the intersection of what appears on the map as McKinnon Avenue and Barneveld Avenue.
The degree of navigability is left in doubt, however. In the case of Freeman vs. Bellegarde the Supreme Court said:
Islais creek empties into the bay of San Francisco, and the tidal waters of the bay ebb and flow in the creek for some distance above its mouth. At the line of the land claimed by plaintiff nearest the bay [which according to the record was about where Fairfax Avenue if extended northwesterly would have crossed the creek] the creek is, at ordinary high tides, three hundred feet wide, and the ground at that point that is covered and uncovered by the ebb and flow of the tides has a width of one hundred and fifty feet between the bank of the stream and the line of ordinary low-
A witness in the above case testified that in 1861 a steamboat came up the creek and remained there for a month, suggesting that it ran aground, and that in the same year schooners came up to a point on the creek, which he named as Mazzini Street, to get wood and hay. Mazzini Street in all probability existed but for a short time and only on a map where it is laid out in a marsh across Islais Creek channel, a short distance easterly of Bay View Turnpike, which the witness stated had not then been constructed. The fact that the only solid ground in that vicinity was at the easterly base of Bernal Heights would seem to indicate that at the time Franconia Landing was declared to be at the head of navigation the creek was in fact navigable to San Bruno Avenue for vessels of light draught, such as would be employed in the carrying of wood and hay.
This branch of Islais Creek left it at a point where what is now Evans Avenue intersects Army Street and proceeded in a winding westerly, southerly and northwesterly course crossing Army Street three times between Vermont and Utah Streets, its channel being in what is now Army Street from Potrero Avenue to San Jose Avenue. Though the channel itself was not very wide after crossing Potrero Avenue, the marshes, according to William J. Lewis, to whom we shall refer in a subsequent chapter, were from six hundred to eight hundred feet wide. From Potrero Avenue southwesterly to San Jose Avenue it was paralleled on the north by what was known as Serpentine Avenue and on the south by Precita Avenue, the latter, however, extending to Mission Street. The creek was probably fresh water from San Jose Avenue for some distance easterly.
The legislature in 1878 authorized the board of supervisors to construct a sewer in the channel of the creek and to abandon all of Serpentine Avenue. Pursuant to this, Army Street was extended westerly over the former channel of the creek, the course of which is indicated by Army Street as it now exists.
The word potrero in Spanish means pasture, and under the pueblo system a potrero was classed as ejidos, that is, land for the common use of the inhabitants of the pueblo. There were two of these potreros in the Pueblo of San Francisco, one known as viejo, or old, and the other as nuevo, or new, but now both are known as the Potrero.
The Potrero Viejo embraced the portion of the Bernal grant south of the Islais Creek district and also what is known as Bernal Heights. A note in the case of Hart vs. Burnett reads as follows:
October 10th, 1839. Governor Alvarado to J.C. Bernal; one square league, being Rincon de Salinas y Potrero Viejo. It will be seen, by an examination of the archives, that Bernal applied for a grant of this land, and La Visitacion, on the second of November, 1834, two days before the order was issued by the Governor for organizing the pueblo of San Francisco. On the second of January, 1835, Governor Figueroa decreed on this as follows:Later, however, the authorities of the pueblo, and the person in charge of the Mission, were consulted, and both gave their written consent to the grant.
The Potrero Nuevo was officially Potrero de San Francisco and also was known as the Potrero in front of the Ex-Mission of San Francisco. An interesting bit of history connected with it is found in two cases decided by the Supreme Court of California, Brumagim vs. Bradshaw and Spotts vs. Hanley. In the former case the court said: The testimony shows the Potrero to be a peninsula, containing about one thousand acres; bounded on the north by Mission creek and bay, on the east by the bay of San Francisco, on the south by the same bay and Precita creek, and on the west by a stone wall and ditch, running from Mission creek on the north to Precita creek on the south, across the neck of the peninsula.
The testimony in this case has not been preserved, but from the transcript on appeal in Spotts vs. Hanley, the testimony of two witnesses, stated in narrative form, not only describes the stone wall and ditch referred to in the first case, but also the nature of the ground adjacent to the stone wall. The witnesses referred to were George Treat (see Appendix B) and William J. Lewis. The former was a pioneer and was active in those portions of the city known as the Mission and the Potrero for many years. He testified as follows:
I have known the property called the Potrero Nuevo for about fifteen years before 1865. I had something to do with this property. My relations to it commenced in 1850. The Potrero named was a peninsula bounded on the west by a stone-The race track referred to was the Pioneer Race Course, the first race track in San Francisco. This had been built by George Treat and his brother John.
At the time it was laid out there were no streets in the neighborhood, but from a map published in 1864 it would appear to have been bounded roughly by what is now Twenty-fourth (formerly Park) and Twenty-sixth (formerly Navy) Streets and Capp and Alabama Streets
The other witness, William J. Lewis, testified as follows:
I am a surveyor and civil engineer; I have practiced my profession in the City and County of San Francisco since 1856. In 1856, I was acting as Deputy City and County Surveyor, in the City of San Francisco. I know the tract of land known as Potrero Nuevo. I made a survey of the Potrero in 1856. I first made a survey of the exterior boundaries, and then when we agreed upon the plan of dividing it into streets and blocks I made the survey for the subdivision, and afterward made a map of it. That map was filed in the Recorders office. I had occasion in making this survey to travel over the whole exterior boundaries of the ranch, and in subdividing it becoming intimately acquainted with the whole matter in laying it out into streets and blocks. In the western boundary of the tract I found a stone wall which formed a greater part of the western boundary. The stone wall came very nearly down to Precita Creek, and then to the north end there was a fence and a ditch that came down to Mission Creek; a fence on the banks of the ditch that came down from the end of the wall to the marsh at Mission Creek....Considering the fact that the testimony of these witnesses was given long after the streets in the vicinity of the stone wall and ditch had been constructed, it seems remarkable that the location of the stone wall and ditch was not given with reference to these streets. However, this may be accounted for by the fact that there seems to have been no question as to the facts to which these two witnesses testified. A map from surveys made in 1852 shows the stone wall extending southeasterly from the head of Mission Creek almost to Precita Creek. The title of the plaintiff in each case was based on possession under the Van Ness Ordinance (see Appendix C), it being contended that the natural boundaries plus the artificial boundary consisting of the stone wall and ditch was such an enclosure as satisfied the Van Ness Ordinance. The Supreme Court, while recognizing that theoretically this contention was valid, reduced it to an absurdity by several illustrations, one of which was as follows:
The City of San Francisco is situate on a peninsula, containing many square leagues of land; at the narrowest point of which, in the vicinity of Redwood City, it is but a few miles across the neck from the bay of San Francisco to the shore of the ocean.It appears from the facts recited in the foregoing cases that many persons squatted on the Potrero. The reason for this doubtless was that the title to the Potrero was long disputed and involved in litigation between the De Haros and the United States, until the matter was finally decided by the Supreme Court of the United States in 1867. Francisco and Ramon De Haro laid claim to the Potrero under what they asserted was a grant by one of the Mexican Governors, Manuel Micheltorena, but which the United States claimed was nothing more than a license for the pasturage of their cattle. The claim of the De Haros was confirmed by the Board of Land Commissioners, but upon appeal to the United States, District Court the claim was rejected on the ground that the document on which the De Haros relied conferred no title on them. From this decision an appeal was taken to the Supreme Court of the United States, which affirmed the decision of the District Court. The license was in the following language: I declare Francisco and Ramon De Haro, empowered to occupy provisionally the piece of land called Potrero de San Francisco to the extent of half a square league. The reason for not making a grant was that the Potrero was ejidos, or the common property of the inhabitants. The court in its opinion said: The case on account of the large pecuniary value of the land in controversy has elicited great interest. We have been aided by oral and written arguments of rare ability, and the question of pueblo and mission rights and powers of the Mexican Governors of California over them has been much pressed upon our attention.
Some of the ablest lawyers in the nation appeared in the case. In addition to the California attorneys there were: William M. Evarts, Jeremiah S. Black, Caleb Cushing, Montgomery Blair, and Henry Stanbery. Of these, Messrs. Black and Cushing had been attorneys general of the United States; Stanbery was attorney general and Evarts succeeded him. Montgomery Blair had been postmaster general in Lincolns Cabinet. The local attorneys of note were: William M. Stewart, Harvey S. Brown, the firm of Shafter, Heydenfeldt and Goold, and John B. Felton.
INVOLVING TIDE- AND
In the California Reports there are a number of cases which involve questions relating to pueblo lands in San Francisco (see Appendix C), and some of these cases eventually reached the Supreme Court of the United States. an
One of these, entitled United Land Association vs. Knight, is important as it raised a question whether the title of the city evidenced by the patent of the United States or the deed of the State Tide Land Commissioners to land in the mouth of Mission Creek conveyed the better title.
The decree of the United States Circuit Court confirming the title of the city to the pueblo lands designated:
...a tract situated within the county of San Francisco, and embracing so much of the extreme upper portion of the peninsula above ordinary high- water mark (as the same existed at the date of the conquest of the country, namely, the seventh of July, A.D. 1846), on which the city of San Francisco is situated, as will contain an area of four square leagues
As a survey was necessary, one was made and approved by the United States surveyor general for the State of California and was known as the Stratton Survey. The line of ordinary high tide in this survey followed the sinuosities of Mission Bay and its estuary, Mission Creek, thus excluding as much of these bodies of water as lay below ordinary high water mark. Although the secretary of the interior took no action either for the approval or rejection of this survey, the State of California through its Tide Land Commission surveyed the excluded lands and platted them into subdivisions and sold them. Subsequently, the secretary of the interior ordered a new survey, which was made in 1884 by Ferdinand von Leicht. This was known as the Von Leicht survey, and upon it a patent to the city issued. The survey threw Mission Bay and Mission Creek within the four square leagues. The plaintiff, United Land Association, claimed under the deed of the Tide Land Commission, and the defendant, Knight, under the deed from the city. The Supreme Court of California, in a four to three decision, upheld the title derived from the Tide Land Commission. While the real question was whether or not the patent of the United States could be impeached by evidence that the lands included lay below the line of ordinary high tide, the Supreme Court decision was based on the proposition that the United States, as the successor of Mexico, could not grant what it did not own. In other words, that the Mexican Government could not have granted land lying below ordinary high tide, and the United States, as the successor of Mexico, held land lying below the line of ordinary high tide in trust for the future state.
The Supreme Court of the United States, to which an appeal was taken, reversed the decision of the Supreme Court of the State, holding in effect that the question whether or not the land included in the patent lay below the line of ordinary high tide was one for the United States Government to determine, and that the Governments decision that the land did not so lie was the determination of a question of fact and, therefore, not reviewable by the courts. As a result the city was held to be the owner of all the land described in the patent, and of course deeds excised by the Tide Land Commission were void.
This is the creek referred to on the first page of this article as fresh water. It lies beyond the limit of the area covered by the article, but because of the fact that it bore the same name as the estuary it should be described.
One of its sources was in the glen on the southern slope of Twin Peaks, formerly known as San Miguel Hills, just north of Portola Drive. Portola Drive was originally San Miguel Toll Road, and the little kiosk which was the toll house is in the glen just north of the drive, where the Shetland ponies are now kept for children to ride.
South of Portola Drive is a deep and wide canyon which narrows as it extends southeasterly. The creek coursed through this canyon and by Glen Park and then through what is now Bosworth Street until it reached the bottom over which Mission Street viaduct is built. The other source is about where Cayuga Avenue and Regent Street intersect. Its channel was what is now Cayuga Avenue and joined the other branch under the Mission Street viaduct. The creek widened between Niagara and Geneva Avenues to form what was known as Lake Geneva. It then took a generally southeasterly course in a channel that is now Alemany Boulevard and, crossing San Bruno Road, emptied into Islais Creek estuary at about where Industrial Street is shown on the map.
The name given the creek has the appearance of being Spanish, but the Spanish dictionary does not contain it. An Indian word islay, meaning wild cherry, suggests the origin of the name. There were many wild cherry trees on the peninsula, and it is probable that some of them grew on the banks of Islais Creek and that the Spanish may have adopted the name and given it a Spanish form, something that has been done frequently with native names.
George Treat deserves more than mere mention. Born in Frankfort, Maine, on April 16, 1819, the son of Joshua and Sarah (Sweetser) Treat, he left that state in his early youth and in 1835 settled in New Orleans. He remained there until 1847, when he and his brother John enlisted in the United States Army and went to Mexico shortly before the war with that country ended. After his discharge he came to California on the bark Selina, reaching Santa Barbara on July 8, 1849, and San Francisco on August 10. The brothers settled in the neighborhood of the Mission and raised foodstuffs for the city markets. George Treat later engaged in mining enterprises in Nevada and Mexico, and was prominent in business circles in San Francisco. Treat Avenue, in this city, was named for him. He was a member of the first Committee of Vigilance of San Francisco, and when the South seceded from the Union, he enlisted in a California regiment which, however, remained here.
As did many others in those early days, he became interested in horse racing and owned a horse. This horse he named Thad Stevens. Treat was an ardent Abolitionist, because he had seen slavery at its worst in New Orleans, the slave market of the South; it may therefore be inferred that he named the horse for the famous Abolitionist of that name. It was affectionately called by San Franciscans, Old Thad, and in two of the most memorable races held in San Francisco it was the favorite. On November 15, 1873, it won the first race at Ocean View Race Course, and lost the second at Golden Gate Driving Park a year later. The attendance at the first race was fifty thousand and considerably more at the second.
George Treat was married on April 19, 1857, to Clarinda Littlefield, daughter of Rufus Batchelder, of Prospect, Maine, and they had five children: May Benton (the late Mrs. Alexander F. Morrison), Clara Littlefield, Sara Batchelder (Mrs. George R. Child, who lives in San Francisco), Rosa, and Frank Livingston Treat. He died in San Francisco in May I907.
What is now the City and County of San Francisco was, under the Republic of Mexico, the Pueblo of San Francisco, though this was strenuously denied by the United States Government. The petition of San Francisco filed with the United States Board of Land Commissioners July 2, 1852, was for four square leagues. The majority of the commissioners denied the petition for that quantity of land but in their decree of December 21, 1854, allowed it for that portion of the present city lying north of a line drawn from Rincon Point to Lone Mountain and thence to Point Lobos. The minority member held that there was no evidence of the existence of any pueblo.
An appeal was taken both by the city and by the United States to the United States District Court. Subsequently the United States dismissed its appeal and consented to a decree being made in accordance with the decree of the commissioners. The city, however, refused to accept this offer, and pursuant to an Act of Congress the case was transferred to the United States circuit Court. Justice Stephen J. Field of the United States Supreme Court, Sitting as circuit justice, heard the appeal and awarded the city the four square leagues claimed by it. There were, however, certain portions reserved out of this area.
An appeal was taken from this decree to the Supreme Court of the United States by both parties and while it was pending an Act Of Congress was passed March 8, 1866, by which the United States relinquished to the city all that had been awarded to it by the decree and confirmed the title of the city except as to the reservations. This disposed of the appeal. However, the city, on September17, 1855, had passed an ordinance, which became known as the Van Ness ordinance from James Van Ness, the mayor who signed it, providing for the making of a survey of the land lying west of Larkin Street and southwest of Johnston, now Ninth Street, to be divided into lots and blocks out of which were to be reserved sites for school houses, hospitals, fire engine houses, and other public establishments necessary and proper for the use of the city, including public squares. By this ordinance the city relinquished and granted the land to the parties who were in actual possession on or before the first day of January 1855.
The legislature, on March 11, 1858, approved the Van Ness Ordinance and the map made pursuant to it. This legislation, municipal and state, was responsible for the fact that San Francisco had ready for use, as the city grew, all of the sites delineated on the map, largest of which is Golden Gate Park. It took approximately fourteen years to confirm San Franciscos title to the pueblo, and it will be interesting to note the ground of its claim.
Under the Spanish system adopted by Mexico, the governor of the department was authorized to grant to inhabitants of a town four square leagues of land in the form of a square, or as nearly that shape as possible. The lands within the pueblo were, according to their adaptability for the purposes, set apart for the use of the inhabitants. It is apparent from the regulations prescribed for the government of pueblos that much care had been taken to provide a communal system of life within the limits of the pueblo.
The lands segregated for various uses bear Spanish names, of course, and some of them are not readily translated into English. Even in Spanish some of the terms are synonymous, and yet there must have been a substantial shade of difference or both would not have been included in the enumeration. It is not necessary to notice these distinctions. It is sufficient to note that the tenures were substantially three in number. The first, designated by the name proprios, indicated the character of the tenure which was that of absolute proprietorship, but the grant was limited to a fifty or a hundred vara lot as the site for a dwelling or shop. The second, suertes, were lands which might be rented, and from which a revenue was derived for the benefit of the inhabitants. These lands were for the purpose of cultivation. The third bore the generic name of ejidos, which is best understood by the word commons in English law. These were pasture lands known as potreros, montes from which wood both for fuel and building purposes was procured, and terras de regadio, lands on which there was water for use in irrigation or for the watering of cattle and for domestic purposes. There were, of course, other sites such as plazas, the Presidio and the Mission.
The government of the pueblo consisted principally of the ayuntimiento or town council, and the alcaldes, who were magistrates. It is not quite clear from the regulations who had the disposition of the lands in the pueblo, since different officials seem to have exercised the right. In the pueblo of San Francisco, the alcaldes made grants for dwellings and business purposes while the governors made grants of larger tracts outside of the residential and business portions of the pueblo; also it would appear that the ayuntimiento had a hand in parceling out the lands .
It has already been noted that Bernals first petition for a grant of Potrero Viejo was denied on the ground that it was ejidos, but later the authorities of the pueblo and the person in charge of the Mission were consulted and both gave their written consent to the grant.
Whatever the system may have been, it was so loosely administered that in the case of the pueblo of San Francisco grave doubts were entertained whether San Francisco really was a pueblo, and it was this doubt that gave rise to the opposition of the United States to the confirmation of the citys claim.
California Historical Society Quarterly
Vol. XXI, No. 2