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-driver. A second pile of equal length was placed on top of the first; but, to the utter astonishment and dismay of the contractor, it too disappeared under a couple of blows. This indicated that there was no solid foundation within forty feet and rendered the project impracticable. At the suggestion of the contractor, the plan of piling was abandoned and a platform of heavy planks laid over the bog, upon which cribs of logs were built up so as to make a foundation; and upon this the bridge was constructed. When first built it was a perfectly level structure, having a height of about twenty feet in the middle of the ravine; but on account of its foundation it always shook when crossed by heavy teams; and in the course of a few years, as the platform of logs settled deeper and deeper in the swamp, it sagged down in the center at least five feet below the horizontal.

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-marsh swamps between Fourth and Eighth streets; and much trouble was experienced in filling them up with sand until a sufficiently solid foundation could be obtained on which to lay the planks. On the occasion of an extraordinarily high tide backing up from Mission bay in 1854 a portion of the road between Fourth and Fifth streets was overflowed and the planking displaced and floated off.

In 1862, 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-five feet in width so as to admit the passage of all ships or boats navigating the waters of Mission Creek or Mission Bay above the bridge. One of the provisions of the act was that the grantees might require that the speed over the bridge should not be faster than a walk. Inasmuch as the act was undoubtedly drawn by the grantees, it would seem that they were not too sure of the stability of the bridge.

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.

Singularly enough, although it has not existed for three-quarters of a century, it is still designated as a navigable stream. How far it was navigable in fact is not known, though when, in 1855, the legislature granted a franchise for a bridge from Brannan Street to Potrero Avenue, it provided that the bridge should at no time obstruct the free navigation of the creek. A bridge existed at least until 1868, for in that year a franchise for a street railroad included in its route “Brannan Street to Potrero Avenue crossing Mission Bridge.”

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.

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-water mark. At high tide the water nearest the bay is about three feet deep, and at a point below the lands in controversy there is at low tide no water in the creek, thus rendering the creek a mere basin which is filled and emptied by the ebb and flow of the tide.

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:

“As it appears, from the preceding reports, that the land asked for by José Cornelio Bernal is of the property of the pueblo of San Francisco de Assis, to which it serves as ejidos for the common cattle, the petition is not granted, as it cannot be given in ownership (en propiedad), but the party interested may keep his cattle there, the same as other citizens do.”

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-wall and fence and Mission Creek, on the north by Mission Creek and a branch of the bay sometimes called Mission Bay, and on the east by the bay, and on the south by the bay or a branch of the bay and Precita Creek. In 1850, I built a fence across from Precita Creek to Mission Creek. There had formerly been a stone-wall there; there was no wall then, but the stone was there, also an old ditch, a large ditch, probably built by the Jesuits. The wall was down in many places. We put up the stones, and between places where the wall was down I connected them with a post and board fence. At the north end there was hardly any stones; I put that up, nearly all with post and board fence.... The stone wall about four feet high, and the post and board fence about four-and a half feet high. They were connected when I lived there. I built a strong gate, with large iron hinges, and that gate I had locked with a chain. When I put cattle in and out, they went in and out of this gate.... I got this enclosure and fence built along in August or September, 1850, I think. There was no access to the Potrero except through the gate or by water....

The gate was generally kept shut and locked. There was no other gate or entrance to the Potrero. It ran through the racetrack. We had to cross the race-track to get to this gate.

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 Recorder’s 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....

The marsh at the end of the wall at Precita Creek was very soft. There was very little water at Precita Creek. It was all marsh we may say. At Mission Creek at the end of the fence it was still worse, that was utterly impassable on foot for a man.

The stone wall commenced at the edge of the marsh of Precita Creek. The creek was a very small stream. The edge of the marsh was not hard—it might have been hard out 20 or 30 feet, but it got soft immediately. We had difficulty in running out those blocks on that account. The marsh was six to eight hundred feet across, from hard ground to hard ground. In starting from hard ground the marsh became softer and softer until you got out 25 or 30 feet, it became decidedly soft. The marsh is very soft, and I know it is deep. It was very difficult to find bottom; at that time I found it was soft marsh. My surveys extended to the creek....

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.

If the rule we are was of universal application, a fence from Redwood City to the sea shore, including the entire peninsula, would establish an actual possession—apossessio pedis of the whole of it; and if the rule were universal and without qualification, the same result would follow if the peninsula were ten times as large as it is. The Courts should hesitate long before establishing a rule of such universal application, as to lead to these absurd results...

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 Lincoln’s Cabinet. The local attorneys of note were: William M. Stewart, Harvey S. Brown, the firm of Shafter, Heydenfeldt and Goold, and John B. Felton.

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—said tract being bounded on the north and east by the bay of San Francisco; on the west by the Pacific Ocean; and on the south by a due east and west line drawn so as to include the area aforesaid... .

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 Government’s 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.