Unquiet title, unquiet land: the history of the Southern Pacific Transportation Company’s lawsuit to quiet title in the Mission District.

On August 18th 1898, a 56-year old woman named Ellen Riley died in her home at 707 Florida Street, which she shared with her husband Michael and five of their seven children. A native of Cork, like her husband and many other naturalized Irish living in the Mission District, she was waked at home, and memorialized at St. Charles Borromeo on 18th and South Van Ness.  

Two weeks later her grieving husband was killed by an incoming Southern Pacific train. He’d just purchased a new windowpane from J.H. Kruse’s hardware shop at 23rd and Shotwell, and was walking home along the SP right-of-way between Harrison Street and Treat Avenue with the freshly cut glass tucked under his arm. At 9:30 am, as he neared the intersection of 22nd and Harrison Streets, a train he may, or may not, have heard (grief can preoccupy a person to the point of insensibility) smashed into him.

Riley was thrown 15 feet and died almost immediately, his arms, legs and skull fractured. SP Engineer A.C. Thyle later told a judge he threw the emergency brake as soon as he could, but to no avail.

The San Francisco Examiner reported that the corner where Riley died was particularly hazardous because of the acute angle of the track as it plunged past an old “rookery” and into the intersection. Residents who used the right-of-way as a migratory route through the neighborhood, resented the blind spot that made an otherwise perfectly good pedestrian corridor into something unpredictably violent. They had complained about the hazard, but their protests were “ignored”.*

There are no trains now, but the right-of-way has maintained its ability to disturb the neighborhood. Today, the complaints center on the fact that no one knows who owns the right-of-way, least of all the San Francisco Assessors-Recorder’s Office, who assess the value of all property in the city. They didn’t know until December 2017 that the State Board of Equalization had transferred the parcel containing the right-of-way to them ten years before.

Two years and several articles later, no assessee or owner has been found. Assessor-Recorder Carmen Chu’s office has steadfastly claimed to have tried to identify the assessee (this, it turns out, is different than the owner) while just as steadfastly refusing to discuss exactly what they’ve done, how they’ve done it, or what they know.  

In general, nobody’s talking. The only thing that seems to haunt the place isn’t the battered ghost of Michael J. Riley, but the spirit of Gilded Age obfuscation, leftover from the days of the railroad barons.

In the instance of the strange case of the right-of-way-nobody-owns (this is what I believe to be the case), there are only known unknowns. Most of them are kept in a banker’s box in the Superior Court of California’s storage space in Contra Costa County. If you request this box from the staff of the reading room at the San Francisco Civic Center Courthouse at 400 McAllister Street, it will be brought to you in due time, and you will be free to peruse roughly 800 legal documents that comprise the 1992-1996 Southern Pacific Transportation Company vs Earnest R. and James W. Heinzer First Amended Complaint for Quiet Title, Trespass and Slander of Title. This is the formal name of the legal action, which is the last time someone took legal action to prove or “quiet” title. The link will take you to a page which has most of the important documents listed in date order with summaries which outline their content. The link to read the original document follows the summaries.

Southern Pacific’s legal action against the Heinzers took five years to settle and was inconclusive. Initially, Southern Pacific included other property owners in the lawsuit, who meekly moved their stuff off the right-of-way– this is the “trespass” part of the action– leaving only the railroad company and brothers James and Earnest Heinzer to spar under the jurisdiction of Judge Daniel M. Hanlon.  

The Heinzer brothers, whose mint green warehouse still stands on the west side of the right-of-way, were one of four businesses who received shipments of freight from Southern Pacific Transportation Company. The Heinzer’s warehouse and the Atlas Stair Company are the only buildings left on the right-of-way from the era of rail deliveries to Mission District manufactories.

In 1991, Southern Pacific, faced with a shrinking customer base along the “old main line”, stopped service and tried to sell the right-of-way for about a million bucks. The Heinzers objected to this, saying they risked being put out of business if the trains stopped delivering their freight (this was a spurious claim- they, like other small industries in the area, were getting their stuff delivered by trucks.) Later, after offering to buy the right-of way for far less than it was worth, they filed a quit claim deed they got from a distant relative of John Center, the original landowner, and a notice to preserve interest in the parcel.

Southern Pacific Transportation Company objected to all of this –this is the “slander of title” part of the lawsuit–and filed suit. The rest would have been history were it not for corporate reticence, the inaccessibility of the legal documents and the understandable reluctance on the part of the public to reading the legal documents in order to understand what happened.

The 1994 judgement is mercifully clear on that:  Judge Hanlon found that Southern Pacific didn’t own the parcel, and had only inherited an easement from the predecessor railroad, the San Francisco-San Jose railroad, which ran through the land donated by John Center, the 19th century land baron who bought and sold real estate in the Mission from 1850 until his death in 1909. An “easement” means you have the right to use the land, but you don’t have the privilege of selling-and profiting-from it.

Reading the legal documents is a real slog, but there are moments where plain language pokes its head over the parapet of legalese and makes the situation a bit easier to understand. The John R. Hetland Deposition is one of those moments. Hetland, a respected and beloved professor of law at UC Berkeley, and expert in real estate law, was retained by Southern Pacific as an expert witness. In his deposition, Hetland takes pains to explain why he felt the Heinzers had no claim. He foresaw the confusion over ownership and suggests on page 36 that asking Southern Pacific for their side of the story might help clear matters up.

I doubt this would have helped. Southern Pacific, which went out of business about three years after Hetland made this suggestion, didn’t like discussing its business with the general public. Neither does Union Pacific, the purchaser of Southern Pacific’s assets. They have, however, disclaimed any interest in the right-of-way in emails to me.

I imagine the original title, which was drafted in 1863, was handwritten in ink that faded from purply-blue to puce as the decades passed. No one knows where it is. It was probably destroyed along with the Southern Pacific freight offices in 1906, leaving a typewritten copy of the original deed** to be offered as evidence of ownership in 1994. The typewritten copy was turned down by Judge Hanlon, who found it was “without proper foundation”.

This could be said of every piece of property in San Francisco. The unceded Ramaytush Ohlone land in San Francisco has passed through the prism of settler violence and speculation, leaving contended property titles as artifactual evidence, much like the right-of-way itself functions as a historic remnant of California’s railroads. Historian R. A. Burchell notes in his book “The San Francisco Irish: 1848-1880” that San Francisco’s claim to possess title to 17,754.36 acres, which was first pursued by the city in 1852, wasn’t fully recognized until 1884.  

The period of contention between the old Californios trying to prove ownership with their surreally distorted diseño maps and speculators, like Center and his buddy Samuel Crim, another Mission District land baron, form a specific chapter in the Mission District’s history, one in which unquiet titles begat unquiet social conditions, like the Mission Dolores Squatter Riot that took place on the night of October 9, 1867.

The riot was an armed grudge match between Center, Crim, and Supervisor James H. Reynolds, all of whom claimed title to the same parcel on Howard (South Van Ness) between 22nd and 23rd street. On the night of the riot, Center and Crim led 70 men brandishing guns and bayonets through the Mission to rip down Reynold’s holding and other “shanties” in the neighborhood. The Reynolds faction, threatened at gunpoint, shot first. Fire was returned, wounding three men and killing a fourth, an Irishman from County Meath named Peter Bradley, who was with the Center-Crim gang. In the aftermath, Reynolds, Center and Crim were arrested and charged with assault with the intent to murder.

In any case, the settling of the Mission continues. In the last year, the Assessor-Recorder’s office has divided the right-of-way into three parcels, for reasons they prefer not to discuss, citing California revenue and tax code section 408. The Assessor’s office did confirm in an email to Mission residents that they’re seeking taxes from dead people and defunct family trusts associated with these three parcels.

The John Center Company, which was dissolved in the mid 20th century, is on the hook for $211,653. William Henry Crim III, a descendant of Samuel Crim, and who might be dead, is being billed $61,514. Celia Wehr, a woman who lived next to the right of way in 1910, and who is certainly dead, has been billed $9,676. (That the deceased are being taxed by the assessor’s office adds a surprising twist to the adage that death and taxes are inevitable.)

So now what? If no taxes are paid within the next four years, and the land is declared abandoned, the parcel will revert to the city, who will then have the choice to auction it, or keep it unowned, with protection against profit, and develop it as open green space, sort of like it was a long time ago, before missions, ranchos and land speculators began to purchase the place now called San Francisco.

The destruction of the original title, which was accidental, now seems determinative. Prior to any official decision making, this parcel has managed to revert back to its natural state of being un-owned, which is to say un-sequestered by deed for future profit. It feels misguided to investigate missing titles on unceded territory when the deeper identity of this place— land used for a common purpose—seems so determined to assert itself. Land has spirit, too, quiet but persistent.  

Map of the Mission District “Pueblo Lands” circa 1865. Please note the Embarcadero, or pier at the mouth of Mission Creek, close to the modern day intersection of um…Harrison and 17th? If you know for certain, tell me.

Written on a sultry day on October 6, 2019. We’re six days into the month. No fires yet.

*The San Francisco Examiner, Sept 6, 1898, “Killed by a train in the Mission”. May the spirit of Michael J. Riley rest at the right hand of God and in peace.

** The typewritten copy of the original title is not among the uploaded documents. I ran out of time. Sorry about that.

The missing switch of 22nd street

I can explain about the railroad switch. My husband was the one who noticed that it was missing. We were walking down 22nd street, past the old Southern Pacific right-of way. I saw what I always see, dried stalks of Foeniculum vulgare, and the Western Plywood warehouse (which is also gone now). Jay immediately zeroed in on what wasn’t there: the old railroad switch.

Hey,” Jay said, pointing at a clump of fennnel. “Where’s the switch?”

It was gone. I was flabbergasted. I’ve been looking at the damn thing off and on for almost 25 years. There’s that thing, I’d think, what is that thing? It was always there, the mysterious old metal thing stuck in the ground next to the Atlas Stair Company. It only became knowable—it’s a rail switch!— after I started investigating the history of the Southern Pacific right-of-way, now a vacant strip of land cutting diagonally behind Treat avenue. I wrote an article about the right-of-way for Mission Local in December 2017 that described the rails embedded in the ground and the rail switch.

The switch itself is kind of boring. There’s a flat metal plate with rusted spikes sticking through holes. Then there’s a really thick vertical part which supports a circular plate with a cool handle that juts out awkwardly from the side of the apparatus. A length of iron, which still has some yellow paint on it, extends about two feet up from that. It seems like one should be able to lift the jutting handle  and move it counter-clockwise around the circular plate, and fix it into another position, but you can’t. I tried. A bit of iron wire is wrapped haphazardly around it: some long-ago engineer’s quick fix? Maybe. When was it was bolted to the ground? I don’t know. Maybe sometime in the 1860’s, when trains from the San Francisco San Jose line ran along the rail, but it’s more likely a later improvement by the Southern Pacific, which bought the failing SF-SJ line and enfolded it into its tentacular monopoly.

There are endless categories of trains and railways, and rail lines and to go along with this, exhaustively well-researched and documented histories of the terrible fraud and larceny of the rail magnates. Rail history is more than just people traveling and golden spikes driven into rail ties: it’s the game of Monopoly in real time, the history of unregulated capital, labor exploitation, land seizures and riots. It is the story of ex-grocers with fat stomachs, who got rich seizing control of California’s government, land, and labor.

All the magnates—Huntington, Stanford, Hopkins and Crocker, Newhall, all those guys—knew how to exert control. The old switch is a small expression of that.

Here, let me do a cut and paste from Wikipedia in order to explain what a rail switch is. (I had no idea.) A railroad switch is “a mechanical installation enabling railway trains to be guided from one track to another, such as at a railway junction or where a spur or siding branches off.” Basic, right? The switch was probably made in the Southern Pacific’s foundry in Sacramento and might have even been designed by a man named Andrew Jackson Stevens, SP’s General Master Mechanic from 1870 until 1888, a man noted for his ingenuity in designing railroad parts.

I’m telling you this to show that even for something as mundane as a rail switch, it’s possible to know a lot about its origins. And because of the slow unfolding of certain events, it’s also possible for me to tell you why it’s missing from the right-of-way.

An Irishman named John O’Connor saved it. That’s the short story. O’Connor, a tall man with large eyes, is a builder—or developer, if you want to use the faintly pejorative term—and a Kerryman. “That’s cool,” I said when he told me this. “San Francisco is a Cork and Kerry town.” He smiled patiently. John O’Connor bought the Western Plywood warehouse on Harrison street in 2013, and straightway started making plans to tear it down and construct a residential building. He’s kind of shaping presence around here. A couple years ago, he built another residential building right next door to his newest development. His latest project was planned under fire from neighborhood criticism, which ranged from laments over the lack of affordability to concerns that his tall building (it’s going to be 40 feet high) would cast an actual pall over the neighborhood with its high, high walls.

I’m bringing him into this because not only did he save the switch, but also because his property borders the right-of-way.

Now, maybe you know that know some of my neighbors here in the East Mission want to turn the right-of-way into a long narrow greenway, like Juri Commons. No one knows yet, because the city doesn’t know who owns it the parcel. In the meantime, the future of the right-of-way is unfolding from emptiness into form, and the dimensions of the right-of-way changing because of O’Connor’s 40-foot building rising up on its eastern edge. In a weird way, this is going to help: people will know exactly how much land there is to work with. I find this interesting, in a plot-driven kind of way: O’Connor has acted as a local deus ex machina, providing answers and clarity in a way he probably never intended to.

He certainly did one day, a month after the switch went missing.

On that day, I was walking along the right-of-way with the people who want to see it turned into a greenway, interviewing them for another Mission Local story. Ever since Jay noticed that the switch was gone, the pre-verbal, pre-cognitive part of my mind had gone on full alert, like a searchlight. A questing beacon.  Where is it where is it, my seeking mind muttered.

You see: I felt guilt. It was my fault that it was gone. Let me back up, and explain.


The switch is gone! Skulduggery! I wrote in an email to my friend Dennis, hours after Jay pointed out its absence. I thought maybe it had been removed by certain property owners I had mentioned in my December story. They didn’t like being written about, I reasoned, and they didn’t want people to start loving the weedy old parcel: that’s an old railroad right of way, they’d maybe say, looking at the rusty switch with new respect. So they must have pulled the switch out.

Dennis, who is a railroad historian and a journalist, and also very sensible, explained what had really happened. It’s more likely that it was taken, he wrote back, pointing out that because I had helpfully included a picture of the switch in my Mission Local article, that rail fans/artifact plunderers noted the fact that there was a “vintage” rail switch standing in an empty lot and planned accordingly. They probably took it, he concluded, and then told me a story of an awesome object he wrote about, which doomed it to theft, too.

I thought of Yeats’s famous line about writing plays that got men shot. The article I wrote that got the switch, I thought and stopped right there because my mind was hissing things at me like that’s weird, Elizabeth. Stop being weird. Also, I could not think of a word for “steal” that rhymed with “wrote.”

Dennis sent me a link to Ebay to prove his point. It took me to a world I never knew existed: the world of collectible “Railroadiana & Trains” where, sure enough, two or three rail switches were for sale. My jaw dropped. Some guy in Kentucky had one listed for 399.00 . You understand that railroad switches are very heavy, right? And not pretty. I saw a 16th-century water pump in the Victoria and Albert Museum in England last November that was very pretty. Every square inch of it was adorned with flowers, and other stuff. The switch is not pretty. And yet, they sell for hundreds of dollars (apparently. Maybe the guy in Kentucky is delusional.)

Back to my questing mind: so, I was walking around in the right-of-way with people who want it to be a greenway. Ostensibly, I was there to interview people, and I was doing that: the gentle teacher who thinks about open spaces and the humanity that takes root there, the suspicious and weary artists who live in a warehouse along the southern edge of the right-of-way, who feel like foxes run to the ground. They have had the vacant lot to “work large in” and fear that they’ll lose their creative space if the greenway is developed.

I was definitely working. But I was also thinking about the switch. Where is it where is it where is it, beep, beep, beep…I showed one of the artists where the switch had been. He hadn’t noticed it was gone. Someone else came over and we discussed the situation. It’s a bummer, I told the artist. It made this a place.

What else?

It was a piece of the past. It was a part of the old world where things were manufactured, not just funded. It was Made in America, possibly the handiwork of unionized labor. It hearkened to a time when the physical world held sway and nothing was seamless. We all agreed these things were true.

We walked back to the Western Plywood warehouse, which was three weeks away from demolition. The siding  was open, so I walked inside and took a picture. There was a shout.

“Hey! No! No pictures! No pictures!” John O’Connor—that’s who it was, although I didn’t know that at the time—rounded the corner, looking tall and annoyed.

“Sorry,” I responded. “Can I look around if I take no pictures?”

“Sure,” he said. I noticed the brogue. The others drifted over: the neighbors who wanted the parcel to become a greenway, the artists who weren’t so sure. They had met each other that morning and there was a cautious air of well-shit-I-guess-we-should-talk sense of rapprochement. Someone said something about all the changes, and then someone else mentioned the switch.

“Did you notice the switch is gone?” I asked O’Connor.

“Oh, I have that, sure,” he said.

“WHAT?” I screamed. He pointed inside the warehouse. And there was the switch, laying on the ground with clods of mud and weeds festooning the base.

He’d been inside the warehouse on New Years night, he said. As he was leaving, he noticed that a white truck was inside the lot, down near 22nd street. It was a “bart truck”, he told us.

“A bart truck,” I repeated.

“Yeh, yeh, you know, BARRRRT. Bart. The train. The truck had the BART logo on it,” he said and showed me a picture he’d taken of the truck and the license plate.  He watched as two men wrestled the switch into the truck and then decided to act.

“So, I went over to them,” O’Connor said “and said what’re you doing here? What’re you doing? Yiv got no business here. And I told ‘em to leave and brought that inside. I knew they shouldn’t have it.”

“Did you tell BART?” I asked.

“Ah, no. I didn’t want to get the lads in trouble,” he said. “I chased ‘em off. That was enough.”

It was sort of a moment when he told us that he’d saved the switch, taken it from the plunderers and stored it inside the warehouse. People were happy to see it, the switch that had been stuck in the ground, for maybe a century, year in and year out. We’d all been mostly unaware of it until we started thinking about the future of the place.

It felt like a good omen to see it laying there.

After O’Connor knocked down the Western Plywood warehouse, the switch was moved to a safe (and undisclosed) location, until it goes somewhere else. The Western Railway Museum said they’d take it. But I’m not sure I want it to leave the Mission. One thing is certain: it will probably won’t go back to the right-of-way. Rusted iron spikes and jutting handles are incompatible with concerned parents and their small children, which will play in the greenway, if that’s what ends up happening.

And there’s no security for it now, which is partly my fault—I asked for attention to be paid, and it was.

So now you know why the switch is gone. What I can’t tell you about is its future.

The history it belonged to is totally gone and now the switch is sort of like a marooned time-traveler. What happens to them? Sometimes they get back home. Sometimes they’re destroyed. Sometimes, they remake the future and shape it in ways no one could have predicted. I don’t know what will happen to the railroad switch. It’s in exile right now, but we’ll see. The Mission is changing. But there’s always room for the past.

Here is a cut-n-paste of the SP spur, taken from the  San Francisco block book, circa 1900, possibly even earlier (it’s undated and in the collection of block books at the North Baker research library at the California Historical Society).

If you look closely, you can see the names of the property owners scattered throughout. Prominent among these is Samuel Crim, John Center and JH Kruse.

 
Written during a Pineapple Express storm on March 21st, 2018. It’s been a while since I’ve written. I organized a history festival, and that took all my time. And then I got sick. But I’m better now. It’s good to be back.