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.