si! 11 REPLY TO THE STATEMENT G. H. HARRIS Dated Berkeley, September 28th, 1886. IN REFERENCE TO THE FORSTER CONTRACTS AND LOCATIONS. BY THKO. WAGNER, Attorney for Forster Claimants under D. !>. Kurtz To the Hon. Board of Regents of the University of California. GENTLEMEN: I have received a copy of the printed statement of G. H. Harris, Land Agent of the University of California, dated Berkeley, September 28, 1886, and addressed to the Hon. A. L. Rhodes, of Land Committee. This statement was evidently prepared in reply to my memorial. Mr. Harris starts out with giving in his statement a copy of the application and contract of John Forster, that of Francisco Forster being admitted to be the same in all respects, except the description of the land and amount of acres. In conclusion of his statement, Mr. Harris says that the Forters made their application to the Land Agent of the Uni- versity, but that the University did not undertake to sell the land applied for and that the Land Agent simply acted as the locating agent and was governed by the statement of the Forsters. that the tracts contained 2700.88 acres which they contracted to accept for 2720 acres. I claim that the statement that the Uni- versity did not undertake to sell the land to the Forsters, is ridiculous, ;md not true in fact. The application of John Forster, a copy of which is printed in Mr. Harris' statement on page 1, shows upon its face that Forster applied to purchase and locate certain lands from the University, and it is self evident that there can be no purchaser unless there is a seller. The University did, in consideration of the payments made and agreed to be made, agree to sell to the Forsters the land applied for by them, provided it be land subject to location by them and free from adverse claims. For whom was the Land Agent acting as the locating agent ? Was it for the University or the Forsters ? By whom was he employed? Who paid him for his services? The answer must be the University and not the Forsters. Therefore, Mr. Harris' point in this respect, seems to me like drawing a distinction without a difference. Mr. Harris makes the astounding assertion that ihe Land Agent was governed by the Forsters' statement that said tracts contained 2700.88 acres. It needs only an examination of the application of John Forster printed upon the first page of his statement, which says " containing 2268.78 acres according to the returns of the U. S. Surveyor General" Now under the Strobel survey returned by the Surveyor Genl. said tracts w>re said to contain, according to the returns of the U. S. Surveyor General 2268.78 acres, and the tracts included in Francisco Forster's application were, under that survey, returned by the U. S. Surveyor Genl. as containing 431.60 acres. This is not denied by Mr. Harris, although he does not state it. The University can only select its lands according to the government surveys, and if the Forsters had at that time caused a correct private survey to be made, and had applied to the Land Agent of the University for the land according to such private survey, would their application have bern approved ? Or would the University have applied for the land according to such private survey ? Most assuredly the Land Agent would have done neither he would have returned the applications with a statement that such subdivisions did not exist. The University was governed in its selection, and the Forsters were governed in their application, by the returns of the U. S. Surveyor General; and if those returns were wrong it was manifestly a mutual error of fact, as well by the University as by the Forsters. So the statement of Mr. Harris that the University was nut a party to the errors of selection is manifestly an error. The land agent further says that the Forsters made affidavits that there were no adverse claims to said land to prevent its selection under the agricultural grant. This statement, while strictly true, is yet very unfair for it might lead to the inference that the Forsters had concealed the adverse claim of Kurtz. The Forsters' affidavits were made under the Strobel or rejected survey and* not under the present survey. An examination of the map of the Strobel survey, Exhibit "A" of my memorial shows that Kurtz's selections of 320 acres under Strobel's survey in noway conflicted with the University selections ;is applied for under the Strobel survey. The Forsters have made no new application under the present or Yon Leicht survey, but the land agent has made those selections upon his own responsi- bility or by. order of the Board of Regents which action does not tally at all with his claim that the land agent is acting only as the locating agent for the applicant. On page 2 of his Statement Mr. Harris purports to give a statement of the amounts paid by the Forsters but he studiously avoids giving the dates of payments since December 2d, 1872, so that from his statement, without other explanation, anyone not familiar with the facts would infer that the amount ^ of $4500 and $938.50 were paid at one time while the fact is that the payments were made upon the dates specified in im- memorial. Exhibit No. 1 of my memorial is an exact copy of a statement furnished me by Mr. Harris himself with the exception of the heading: * Account of amount claimed under Strobel survey. " It will be seon that the total amount of credits of $8944 s the same in both statements, viz. : $7448 in case of John Forster and $1496 in case of Francisco Forster, which, if added together make the amount of $8944. The statements of Mr. H irris in regard to Mr. Livermoore, and conferv-nces between the Forsters, Mr. Mhoon and him- self, and Mr. Le.ich, have no bearing whatever upon the matter at issue. After this follow proceedings of the Board which I assume to be correct. Mr. Harris does not include in his statement a copy of my petition to the Board of Regonts, asking them to join with the Forsters in a petition for a resurvt-y of said Town- ship, but the Report of the Land Committee on page 6 of said statement substantially contains the facts presented in the petition. It will be seen that the Board of Regents itself asked for a re-survey " to secure to your University proper credit for " lands which by having no existence in fact, are improperly locate / " and charged thereto." Mr, Harris also on page 6 of his statement publishes a copy of the Honorable Commissioners' decision, declining to order re-survey, bu e he does not publish a copy of the subsequent decision of the Honorable Commissioner, which ordered the re-survey. Mr. Harris' statement on page 7 shows that at the meeting of May 23d, 1884, the Land Committee was authorized lo prepare a form of deed to be executed by the Governor re-con- veying certain lands in Tp. 9, South R,. 7 W. S. B. M., but Mr. Harris does not state that such deed was prepared and executed by the Governor re-conveying to the United States all the land excluded by the Von Leicht survey from said Township. In order to complete Mr. Harris' statement I now assert that suc n is the fact and here the enquiry seems proper if the University could charge the Forsters tor land, which by its own act it has re-conveyed to the United States, or retain money in their hands which was paid as interest upon supposed land which they have re-conveyed to the United States, and for which they have received credit from the United States ? 4 The resolution of the Hon. Board o'f Regents found on page 8 of Mr. Harris 3 statement which was adopted at the meet- ing of August 14, 1885, authorizes the land agent to procure the cancellation of the old 2620.38 acre selection and list under the Strobel survey, upon condition that the University be permitted to select under its Grant the lands in said selection which appear upon the survey of said township, approved September 2, 1884, amounting to 1626.61 acres, andlo select also under said Grant lands to the amount of 993.77 acres, the said two selections to be in lieu of said jirst mentioned selection. The Land Agent under that Resolution was also instructed in that Resolution " to apply for an amendatory selection of 1626.61 acres being the tracts to which the University is entitled" This admits that the University was not entitled to the 993.77 acres, and if it was not entitled to them, it could not sell them to the Forsters, or retain interest paid upon what it was not entitled to, and which it could not convey. On April 8, 1888, at a meeting of the Board of Regents the Finance Committee submitted a statement from the Land Agent (see page 9, of Mr. Harris' Statement), wherein Mr. Harris charges the Forsters with 1726.23 acres whereupon the same page, just preceding that statement, it appears that the Hon. Co ninissioner >>nly allows 1626.61 acres to the University under its selections and by the Resolution of the Hon. Board of Aug. 14th on page 8, it appears that the Board of Regents only claimed 1626.61 acres. Mr. Harris therefore evidently made an error of 100 acres in his calculations. ' Mr. Harris arrives at this result by subtracting 993.77 acres from 2720 acres. The Forslers had agreed to accept 2700.38 acres, which they originally applied for, for 2720 acres but all the land they applied for was not listed to the University, even under the old survey. In the Hon. Commissioner's letter to the Register and Receiver at Los Angeles, dated Washington, D. C., June 26, 1885, and quoted upon pages 8 and 9 of Mr. Harris' statement, it is shown that only 2620.38 acres were e\er listed to the Uni- versity of the land included in the Forsters' original application. It seems that the N. J of the N. E. J of section 4 was for some reason never listed consequently the University never had 2700.38 acres even under the old survey to sell to the Forsters. In order that there may be no doubt upon this point I have procured from Mr Harris the following certificates: 5 Application No. 412 by Francisco Forster, made Feb. 17, 1872, under the grant of 150,00 acres, is as follows: Tract Section 15, and Lot of 2 of Section 22, Tp. 9, S. R 7 W., S. B. M. containing 431.60 acres, accepted for 440 acres. The above is a correct description of the original appli- cation. J. Ham Harris Land Agent. Application No. 411 by John Forster, made Feb. 17, 1872, under the grant of 150,000 acres, is as follows: N. E. J and Frl S. J of Section 4, Section 3, Frl. W. of Section 2, S E J of N. E. J and Frl. S J of Section 9, Section 10, and Frl. W. J of Section 11, and Lots 1, 2 of Section 14, Tp. 9, S. R. 7 W., S. B. M. containing 2268.78 acres, accepted for 2280 acres. The above is a correct description of the original application. J. Ham Harris Land Agent. The North Half of the North East Quarter of Section Four (4), Tp. 9, S. R. 7 W. S. B. M. said to contain eighty acres, was not listed. J. Ham Harris Land Agent. It appears therefore from this, that the Forsters were charged with principal and interest for eighty acres of the land originally applied for by them, which the University never owned and never applied for and it must be plain that this was an error. As before stated, the Forsters had agreed to accept 2700.38 acres, which they originally applied for, for 2720 acres, or, in other words, they had agreed to pay the University for 19.62 acres more than the number of acres which returns of the U. S. Surveyor General showed to be in the tracts as originally applied for. This was done and exacted upon the supposition that by reason of having to accept fractional subdivisions less than 40 acres, as 40 acres the University would be charged with the excess. Under the new survey, however, the University is not charged with such excess, but only with the actual number of acres selected, hence it ought not to charge excess to the Forsters, and even if the Hon. Board of Regents should be dis- posed to stand upon the strict letter of the contract, it would not apply in this case, for the reason that by th > re-survey and subsequent action of the Board, the cont a t is entirely altered from what it was when the Forsters agreed to ac3ept 2700.38 acres for 2720 acres. If I a^rea to a-jc^p" 2700.38 acres for 2720 acres, that does not imply that by reason thereof I must accept 1626.61 acres ;is 1646 acres There is 110 reasonable hypothesis upon which such a claim could be based. The utmost that could be claimed with any show of reason at all would be a proportionate amount of acres which bears the same proportion to 19.62 acres as 1626.61 a "res actually listed now bears to 2700 38 acres originally applied f jr. Such proportionate num- ber of acres would be 12.11 acres. At this meeting of the Hon. Board of Regents of April 8, 1886 the matter was referred to the Finance Committee with power to settle. O i May 2oth the Finance Comrn ttee presented a report quoted on page 10 of Mr. Harris' statement which was evidently based upon the erroneous calcu'ation by the Land Agent for 1726.23 acres when it should have heen based upon the calcula- tion of KJ26.61 acres, and that error, I believe, is the only real cause now which stands in the way of a settlement, for upon consultation with my clients in, order to bring this matter to an end I am instructed to wit .draw the claim of D. B. Kurtz to Lots 4 and 5 of Sec 10, so as to leave the University selections intact, as they now stand, if thereby the matter can be finally closed up at the next meeting of your honorable Board. On page 5 of my memorial, in stat ; ng the amount paid the University, May 1, 1872, the sum is given as $2720. This is an er.-or, and should be $2888, which would reduce the amount of the Forsters' indebtedness to that extent and interest on the difference. Mr. Harris has not presented any basis or shown to us how he arrives at the result of $4373.90 as being due on May 15, 1886. All we contend for, however, is the princ'ple that payments are to be credited when made, so far as the interest is then due upon the interest, and any excess uponthe principal. We are willing to concede anything re i sonable so long as that principle is admitted to govern the settlement, and when that is done the balance is merely a matter of calculation. If your Hon. Board will concede the principle contended for by us, we will abide the result and pay the amount due at once. There is no practical discrepancy in the amount of piymeuts claimed by the Forsters, and Mr. Harris' statement, except that Mr. Harris debits them with interest, which by reason of over-payments made by the Forsters, they did not owe. In order to bring the matter to a settlement, if possible, I present herewith a table of calculations of the amount due to December 1, 1886, which I have endeavored to make inharmony with what I conceive to be Mr. Harris' system of accounts. If the matter can be settled at the next meeting of your Hon. Board, we will p y the amount shown to be due by this state- ment at once, viz. : STATEMENT 1626.61 ACHES. 1872 May 11626.61 acres at $5 $8,13305 By interest on 80$ ($6,506.44) lOjg 433 76 8,566 81 Dec. 2 To Payments 2,28000 608 00 44000 11750 3,44550 Bal. due January 1, 1873 5,121 31 By 1 year's interest to January 1, 1874. . . 512 13 5,633 44 1873 Sept. 11 To Payments 912 00 176 00 1,088 00 4,545 44 By 1 year's interest to January 1, 1875. . . 454 54 4,999 98 1874 Oct. 19 To Payments 912 00 17600 1,08800 Bal. due January 1, 1875 3,911 9g By 1 year's interest to January 1, 1876 391 19 " " " " " " "1877.... 391 20 " " " " " " " 1878.... 391 19 " " " " " .' "1879 39120 1,56478 5,476 76 8 1876 July 20 To Payment 352 00 1877 May 10 To Payment 176 00 58 50 1878 Jan. 27 To Payment 2,73600 3,32250 Bal. due January 1, 1879 2,154 26 By interest from January 1, 1879, to Dec. 1, 1886. 7 years and 11 months, 10$ 1,705 45 Bal. due December 31, 1S86 $3,859 71 Respectfully submitted, THEO. WAGNER, Attorney for Forster heirs and claimant under D. B. Kurtz.