History of the Donner Party

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Chapter XXIV.

Yerba Buena's Gift to George and Mary Donner
An Alcalde's Negligence
Mary Donner's Land Regranted
Squatters Jump George Donner's Land
A Characteristic Land Law Suit
Vexatious Litigation
Twice Appealed to Supreme Court, and Once to United States Supreme Court
A Well taken Law Point
Mutilating Records
A Palpable Erasure
Relics of the Donner Party
Five Hundred Articles
Buried Thirty-two Years
Knives, Forks, Spoons
Pretty Porcelain
Identifying Chinaware
Beads and Arrow-heads
A Quaint Bridle Bit
Remarkable Action of Rust
A Flintlock Pistol
A Baby's Shoe
The Resting Place of the Dead
Vanishing Landmarks.

Yerba Buena's citizens, shortly after the arrival of George and Mary
Donner, contributed a fund for the purpose of purchasing for each of
them a town lot. It happened that these lots were being then distributed
among the residents of the town. Upon the petition of James F. Reed, a
grant was made to George Donner of one hundred vara lot number
thirty-nine, and the adjoining lot, number thirty-eight, was granted to
Mary. The price of each lot was thirty-two dollars, and both were paid
for out of the fund. The grants were both entered of record by the
Alcalde, George Hyde. The grant made to George was signed by the
Alcalde, but that made to Mary was, through inadvertence, not signed. A
successor of Hyde, as Alcalde, regranted the lot of Mary Donner to one
Ward, who discovered the omission of the Alcalde's name to her grant.
This omission caused her to lose the lot. In 1851, a number of persons
squatted on the lot of George Donner, and in 1854 brought suit against
him in the United States Circuit Court to quiet their title. This suit
was subsequently abandoned under the belief that George Donner was dead.
In 1856, a suit was instituted by George Donner, through his guardian,
to recover possession of the lot. Down to the spring of 1860, but little
progress had been made toward recovering the possession of the lot from
the squatters. The attorneys who had thus far conducted the litigation
on behalf of George Donner, were greatly embarrassed because of their
inability to fully prove the delivery of the grant to him, or to some
one for him, the courts of the State having, from the first, litigation
concerning similar grants, laid down and adhered to the rule that such
grants did not take effect unless the original grant was delivered to
the grantee. Such proof was therefore deemed indispensable.

After such proofs upon this point as were accessible had been made, the
proceedings had ceased, and for several months there had been no
prospect of any further progress being made. During this time, one
Yonti, who had undertaken to recover possession of the lot at his own
expense for a share of it, had the management of the case, and had
employed an attorney to conduct the litigation. Yontz became unable,
pecuniarily, to proceed further with the case, and informed Donner of
the fact, whereupon the latter induced his brother-in-law, S. O.
Houghton, to attempt to prosecute his claim to some final result. Mr.
Houghton applied to the court to be substituted as attorney in the case,
but resistance was made by the attorney of Yontz, and the application
was denied. Houghton then applied to the Supreme Court for a writ of
mandate to compel the judge of the court before which the suit was
pending, to order his substitution as attorney of record for Donner.
This writ was granted by the Supreme Court, and in January, 1861, Mr.
Houghton became the attorney of record. This suit had been brought by
Green McMahon, who had been appointed Donner's guardian for that
purpose, and after a full examination of the case, Mr. Houghton
dismissed it, and immediately commenced another in the name of George
Donner, who was then of age. In the following year, February, 1862, it
was brought to trial before a jury, and after a contest which lasted ten
days, a verdict was rendered in favor of Donner.

The squatters appealed to the Supreme Court of the State where the
verdict of the jury was set aside, a new trial ordered, and the case
sent back for that purpose. This new trial was procured by means of an
amendment of the law, regulating trials by jury in civil cases. This
amendment was passed by the Legislature, at the instance of the
squatters, after the verdict had been rendered. A new trial was had in
1864, before a jury, and resulted in another verdict for Donner. The
first trial had attracted much attention, and was frequently mentioned
in the newspapers of San Francisco, and thus several persons who were
present when the grant was made had their attention called to the
controversy, and to the difficulty encountered in proving a delivery of
the grant. They communicated to Donner the fact that it was delivered
for him to William McDonald, the man with whom he lived at the time.
They also narrated the circumstances attending the delivery of the
grant. This information, however, came too late for the purposes of the
trial. Prior to the second trial, the written testimony of all these
witnesses was procured and in readiness for use when required, but it
was never required. Mr. Houghton and the attorneys whom he had called
upon to aid in the case, determined to rest its decision upon another
ground. They concluded to insist that, as it was a grant issuing from
the government through its instrument, the Alcalde, who was invested
with authority for the purpose, no delivery of the grant was necessary,
and that none was possible, as the entry on the record book of the
Alcalde was the original, it bearing his official signature and being a
public record of his official act. This was a bold attack upon the rule
which the courts had long established to the contrary. After a full
argument of the question at the second trial, the court sustained the
view of the law taken by Mr. Houghton and his associates, and, on
appeal, the decision was sustained by the Supreme Court of the State,
and subsequently affirmed by the Supreme Court of the United States,
before which the question was carried by writ of error.

Donner's attorneys adopted this course because, at the first trial, the
squatters had produced the copy of the grant which had actually been
issued and delivered. This they had obtained possession of and
mutilated, and then had surreptitiously placed it in the office of the
County Clerk of San Francisco, who was the custodian of the records of
the office of the Alcaldes of San Francisco. Their purpose was to make
it appear that it had never been signed or issued by the Alcalde, but
had been transferred with the other papers and records of that office to
the office of the County Clerk. This document was written on paper
having the same watermarks as numerous other grants to other persons,
admitted to be genuine, made about the same time as the grant to Donner.
The body of this instrument was in the handwriting of the then clerk of
the Alcalde, and the certificate that the Alcalde's fees had been paid
bore the genuine signature of the clerk. There was, however, no
signature or name where the signature of the Alcalde should have been;
but there was, instead, a plain, palpable erasure, easily seen by
holding the paper to the light.

George Donner lived to see his property become very valuable, but the
vexatious litigation above described was not terminated until after his
death. Meantime, however, he sold his interest, receiving therefor a
considerable sum of money.

In conclusion it may be proper to speak of the many interesting relics
which have recently been found under the former sites of the cabins of
the Donner Party. When the last relief party left Donner Lake, all
articles of minor value were left scattered here and there about the
floors and dooryards. Soon afterward the tide of emigrant travel turned
principally to other routes, and the Donner Lake road was comparatively
deserted. Years passed, and the loose soil, the windblown dust, the
grass and fallen leaves covered the articles from sight. It was twenty
years before men began to search for the sites of the cabins, and to
carry away little mementos of the mournful place. Nothing at this time
remained in sight save a few charred logs, and a few score of tall,
unsightly stumps. Even the old pioneers had great difficulty in pointing
out the location of more than one or two of the cabins. After the
preparation of this history began, the author induced several of the
survivors to visit Donner Lake, and to assist in definitely determining
the location and boundaries of the cabins. Digging in the earth which
thirty-two years ago formed the cabin floors, the most interesting
relics were found. A collection of over five hundred of these articles
is in the author's possession. There are spoons which are bent and
rust-eaten, some of which are partially without bowls, and some
destitute of handles, the missing portions being vaguely shadowed in the
rust-stained earth in which they were imbedded. Knives there are whose
blades are mere skeleton outlines of what they formerly were, and which
in some instances appear to be only thin scales of rust. The tines of
the forks are sometimes pretty well preserved, sometimes almost entirely
worn away by the action of rust.

Among the relics found at the Breen cabin are numerous pieces of old
porcelain, and chinaware. These fragments are readily distinguished by
painted flowers, or unique designs enameled in red, blue, or purple
colors upon the pure white ground-surface of the china-ware. This ware
is celebrated for the durability of its glaze or enamel, which can not
be scratched with a knife, and is not acted upon by vegetable acids. The
relics unearthed were found at a depth of from one to six inches beneath
the ground which formed the floor. A fragment of this ware, together
with an old-fashioned gun-flint, was sent to Hon. James F. Breen, who
wrote in reply:

The relics, piece of chinaware and gun-flint, are highly appreciated.
The chinaware was at once recognized by my brother. In fact, there is
one piece of the china set (a cream pitcher) still in the possession of
my brother. The piece sent is recognizable by the decoration figures,
which correspond exactly with those on the pitcher."

There is less of the "ghastly" and "horrible" among the relics thus far
discovered than would be supposed. There are many, like the beads and
arrow-heads, which were evidently treasured by members of the party as
relics or curiosities collected while crossing the plains. There are
pieces of looking-glass which reflected the sunken, starved features of
the emigrants. Among the porcelain are pieces of pretty cups and
saucers, and dainty, expensive plates, which in those days were greatly
prized. Bits of glassware, such as tumblers, vials, and dishes, are
quite numerous. Bolts, nails, screws, nuts, chains, and portions of the
wagon irons, are almost unrecognizable on account of the rust. The nails
are wrought, and some of them. look as if they might have been hammered
out by the emigrants. One of these nails is so firmly imbedded in rust
alongside a screw, that the two are inseparable. Metallic buttons are
found well preserved, a sewing awl is quite plainly distinguishable, and
an old-fashioned, quaint-looking bridle-bit retains much of its original
form. Some of the more delicate and perishable articles present the
somewhat remarkable appearance of having increased in size by the
accumulations of rust and earth in which they are encased. This is
especially the case with a darning-needle, which has increased its
circumference in places nearly one half, while in other places it is
eaten away until only a mere filament of steel remains. The sharp point
of a curved sewing-awl has grown with rust until it is larger than the
body of the awl. Several fish-hooks have been found, all more or less
rust eaten. A brass pistol, single barreled, apparently a century old,
was found under the Graves cabin, and near it was an old flint-lock. In
the corner of the fire-place of the Reed cabin were found several
bullets and number two shot. Gun-flints, ready for use or in a crude
form, were found in each of the cabins.

W. C. Graves visited the site of his father's cabin on the twenty-first
of April, 1879, and many articles were dug up in his presence which he
readily recognized. A large number of the leading citizens of Truckee
were present, and assisted in searching for the relics. Among other
things was a cooper's inshave, which belonged to his father, who was a
cooper by trade. An iron wagon hammer was also immediately recognized as
having been used in their wagon. A small tin box, whose close-fitting
cover was hermetically sealed with rust, was found, and while it was
being examined, one of the gentlemen, Mr. Frank Rabel, tapped it lightly
with his knife-handle. The side of the box crushed as easily as if it
had been an egg-shell. The wonderful fact connected with this relic,
however, is that Mr. Graves said, before the box was crushed, that his
mother kept oil of hemlock in this box, and that upon examination a
distinct odor of oil of hemlock was found remaining in the box.

A whetstone, or what might more properly be called an oil-stone, was
discovered at the Breen cabin. On this stone were the initials "J. F.
R.," which had evidently been cut into its surface with a knife-blade.
Mrs. V. E. Murphy and Mrs. Frank Lewis, the daughters of James F. Reed,
at once remembered this whetstone as having belonged to their father,
and fully identified it upon examination.

A great many pins have been found, most of which are the old-fashioned
round-headed ones. A strange feature in regard to these pins is that
although bright and clean, they crumble and break at almost the
slightest touch. The metal of which they are made appears to be entirely
decomposed. One of the most touching relics, in view of the sad, sad
history, is the sole of an infant's shoe. The tiny babe who wore the
shoe was probably among the number who perished of starvation.

The big rock against which the Murphy cabin stood is half hidden by
willows and by fallen tamaracks, whose branches are interlaced so as to
form a perfect net-work above the place where the cabin stood. Under the
floor of this cabin the remains of the poor victims are supposed to have
been buried. Nature appears to have made every effort to conceal the
spot. In addition to the bushes and the fallen trees there is a rank
growth of marsh grass, whose rootlets extend far down in the soil, and
firmly resist either shovel or spade. Until very late in the summer this
mournful spot is still further protected by being inundated by the
waters of Donner Creek. It is hardly necessary to remark that no relics
have ever been found under the site of the Murphy cabin. The tall stumps
which surround this rock, and the site of the Graves and Reed cabin, and
which are particularly numerous around the site of the Donner tents at
Alder Creek, are of themselves remarkable relics. Many of them were cut
by persons who stood on the top of very deep snow. They are frequently
ten, fifteen, and twenty feet in height. Time and the action of the
elements have caused them to decay until, in some instances, a child's
hand might cause them to totter and fall. In a few years more they all
will have disappeared.

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