An Historical Perspective
Compiled and Written
Assistant State Coordinator
California Saving Graves
This historical perspective document has been created to address the potential public title which may have been acquired to the historic Pacheco Cemetery through operation of former Political Code sections 3105 (Stats. 1872). In the event such a public title was acquired, according to section 3109 of the same statute, the Pacheco Cemetery would have become the mandated responsibility of the board of supervisors of Contra Costa County.
This document is intended to assist those reviewing the legal issues at hand in order that they will have some background and knowledge of the history of the town of Pacheco and some of its’ early residents.
In is important to understand the evolution of cemeteries that were established at the time of California’s great Gold Rush, and those that continued to be used during the post-Gold Rush period. Certainly every mining camp and town had a cemetery in which to dispose of the dead. The impact of the Gold Rush period, which was a time when miners moved on a whim to chase new prospects, left many of the state’s earliest Gold Rush cemeteries in places that would never remain settled due to their inaccessibility to ordinary travel.
The futures of the cemeteries of villages or towns that became established during that same time, also were dependent upon whether a particular place continued to remain prosperous and populated. Where smaller towns diminished over time as men turned to agricultural endeavors as opposed to mining occupations, what once were village or town centers were reduced to spots on a road with a store, a stable or post office.
Those who came to California to seek riches in either the gold fields or the farm fields, came from homes in lands where living and dying had been going on for some time. The idea that a community would not have its own burying ground was unheard of in that time. It was no different in California, and more especially because no cemeteries existed at many of the places that were settled by the thousands of immigrants who crossed her golden borders.
Most commonly it is found that many of the state’s historic cemeteries were located on the lands of the area’s most prominent men. Men of prominence in the early years of California were most always leaders of the community. As such they became the benefactors of those communities, subsidizing the needs of the communities in a variety of ways. One man may have donated the land for a school house or a church. Another might have donated the land for a cemetery. [See Appendix A to this document for a brief discussion of land titles in California.]
At the time California’s Gold Rush and post-Gold Rush era cemeteries were first established, the grounds of the cemeteries were not "planned" to include grass lawn landscaping. Green lawns seen at today’s modern memorial parks were ordinarily not a condition found at the outlying rural cemeteries in the state.
Even within city cemeteries such as the Sacramento City Cemetery, embellishments or landscape ornamentation generally only occurred within individual family burial lots, while the surrounding terrain was left in natural soil or earth conditions that required annual weed clearing. The grounds, therefore, were merely natural landscapes, containing whatever plant types might occur naturally within each particular zone in the state.
Cemetery lot owners and their families tended to plant flowers, bushes or shrubs that would lend themselves to the beautification of the family lots. Where it was found necessary, families planted only hearty, drought-resistant species due to the lack of available water at most of the early cemeteries. Ordinarily, families would visit the graves of their deceased family members, clean the lot; often spending a morning at the cemetery that might culminate with a family picnic lunch near the lot.
During the late 1800s and early 1900s, the condition of the remainder of the cemetery was not considered to be in disrepair in its natural state because it was expected that each year the weeds and grasses would return. Typically when reviewing the pages of the local newspapers of the time, it is not unusual to read articles about members of a community planning a day to clean the cemetery. This became an especially important community function after the creation of Decoration Day (now observed as Memorial Day), so that the cemeteries could be cleared and cleaned before they undertook to decorate the graves of fallen soldiers and veterans.
It was only after World War II, and most predominately in the mid-1950s to early 1960s, that many of the rural cemeteries that were owned and operated by fraternal associations and rural cemetery associations began to implement the modern lawn landscaping. Perhaps it was seen as a way to keep the annually occurring weeds and tall grasses from returning with the thought that the lawns would be easier to maintain with modern mowing devices. Whatever the true intention may have been, the method of mowing care generally ended up costing the organizations more to care for them in the long run. This is especially true when the associations had not provided for a maintenance fund to accrue for that use.
Too, some associations chose not to implement the lawns. Rather, the cemeteries were left in the same condition they had always been - in a natural state with annual cleanings. With the advent of herbicides, it became easier to perform weed abatement and many organizations would spray the grounds each year to assist in weed removal. Many historic cemeteries throughout California remain in these types of conditions, especially where there is no formal operation of the cemetery, and burial of community members continue to occur much as they did in the past.
Researcher’s Notation: To evaluate the history of the establishment and development of a cemetery, it is necessary to review the history of the community it served. The following historical overview is not intended as a discussion of the in-depth history of the town of Pacheco. This researcher has not done an extensive review of the town’s history, but only seeks to present this brief overview for the purposes of this report.
According to Historic Spots in California, the "settlement" of Pacheco began with the house erected in 1853 by G.L. Walwrath of New York. Walwrath owned the property for three years before selling it to George P. Loucks in 1856. A commission agent in San Francisco, Loucks moved to the house in 1857. In that year, he built a large warehouse on Pacheco Creek, a scant mile "below his dwelling." Shortly thereafter, Loucks sold a portion of his land to William Hendrick, who erected a home and flour mill, supposedly "one of the few flour mills in the county" at the time.
That same year (1857), Dr. J. H. Carothers bought a parcel of land from the Pacheco family and "laid out the town of Pacheco on the east bank of Pacheco (Grayson) Creek." The town was laid out "around the two enterprises of [Loucks’] warehouse and [Hendricks’] flour mill and it began to grow and flourish." Among the enterprising men and their families who moved to the new town were Hale and Fassett (owners of the "Long Store"), and Elijah Hook (two-story brick building containing a general merchandise store with the Contra Costa Gazette newspaper office occupying the second floor).
In 1859, the United States Postal Department established Pacheco as one of many hundreds of post offices in the populated areas of the growing state of California. Pacheco was a bustling town; growing, changing, and serving not only its own townspeople but others as well. Four- and six-horse wagons brought grain to the flour mill from the Tassajara and San Ramon valleys. Traffic moving "from the southern and eastern parts of the county passed through on its way to the county seat at Martinez." Sacramento Valley traffic passed also, "both going to the ferry at Martinez and returning from it."
With all this road traffic flowing into and out of Pacheco, the town saw the erection of two hotels, one of which was The Eagle Hotel, erected at what is today the intersection of Pacheco Boulevard and Center Avenue. (In 1966, Abeloe noted that it was then-presently the Pacheco Inn.)
Despite the flood of 1862 which is said to have wiped out "much of the town," by 1863, Pacheco had outgrown it’s first school house which was built in 1859, and a larger, two-story structure was erected by the townspeople. It was used continually, thereafter, until 1926.
Like many other California towns that were laid out with the best of intentions and greatest of hopes, the town of Pacheco and it’s vicinity eventually settled into a comfortable agrarian lifestyle, with outlying community members living on agricultural parcels of land of varying sizes. The town is consistently shown on the early maps of California from 1860 forward to this time.
While the town’s population in 1914 had dwindled to only 150 people, it is certain that many other families of the surrounding area called Pacheco their home. According to one source, the town of Pacheco still retained it’s historic country village charm as late the early 1970s. [Pers. comm., R.T. Hickey, president and historian, Folsom Prison Museum, and native of Vallejo, Solano County, California; July 2002.]
TOWN OF PACHECO
This rendering shows the town of Pacheco as it was depicted by the artist in 1866. Regardless of whether some license may have been taken in showing the main road through town in such an exaggerated width, it is clear from the number of buildings portrayed during this period time that Pacheco was a town of some size and import. [Photo courtesy of the Contra Costa County Historical Society.]
United States Postal Map
The town of Pacheco is shown as having a U.S. Post Office in 1884. It is a clear indicator there was a flourishing community and population base during that period.
Said to have been taken in the 1950s, this photograph of the historic Pacheco Cemetery was located by Christine Williams (FPC), and provides an excellent example of how the Pacheco Cemetery likely looked from the time of its establishment in the 1850s or 1860s. [From the Louis Stein Collection of the Contra Costa County Historical Society. Photo courtesy of the Contra Costa County Historical Society.]
The history of the establishment of this cemetery is not exceptionally unique. When the area around where the town of Pacheco was first settled and grew to prosperity, it saw an influx of new residents. It is only reasonable to presume that some of those new townspeople and their families experienced death from time to time. As a consequence, the people needed a place to bury their dead.
In its rural setting on a main road north of the Pacheco townsite, the cemetery began on a small hill within the agricultural properties of Patrick Tormey and George P. Loucks. From the 1950s photo shown on the previous page, the terrain and property surrounding the cemetery had changed very little to that time.
According to the Contra Costa County Genealogical Society, in "...1862 a little boy named William Payton Johnson was buried on a knoll along the fence line of the two properties of Loucks and Tormey. The land became an area burial ground." The implication of this reported history is that young Mr. Johnson was the first burial in this cemetery.
It may well be that this was an assumption on a prior researcher’s part, since little William Payton Johnson’s grave is (or was) marked with a tombstone. Research has revealed, however, that baby Harriet L. Rowley, the daughter of Henry A. Rowley and Helen M. Wickwire, died at Pacheco on August 12, 1861. Harriet’s father is buried in the Pacheco Cemetery. Her grandfather, Henry Wickwire, was also buried in the Pacheco Cemetery. His grave is marked by a tombstone in the cemetery. Wickwire’s wife and Harriet’s grandmother, Elisa Cordelia Dunn, also died at Pacheco and is presumed to have been buried next to her husband, though no tombstone marks her grave.
According to an 1864 article located by the FPC’s Christine Williams, the "citizens had met to locate a spot of ground for burial purposes, for the use of the people of Pacheco and vicinity....With a view of securing a united effort in the proper direction, we are requested to state that a meeting will be held on Friday evening next, June 3d. probably at the school house, at which it is hoped every citizen will be present." (Research is continuing so as to identify if later additional articles regarding this matter also were published.)
From a review of the tombstones extant at the cemetery or previously inventoried by earlier tombstone recorders, it would appear that 89 burials were made in the Pacheco Cemetery between 1862 (Wm. P. Johnson) and 1899. The people of Pacheco and vicinity do not appear to have been limited in any way from having used the cemetery at large.
While two separate deeds exist from both George P. Loucks (1900) and Patrick Tormey (1903) to the Pacheco Lodge No. 117 of the Independent Order of Odd Fellows, it is more likely that the title to the cemetery had already vested in the public according to operation of former Political Code section 3105 (Stats. 1872).
In a brief review of names listed on properties in the vicinity of the town of Pacheco shown on the official county map of 1894, many are identified as being those same families who now occupy graves in the Pacheco Cemetery. The Loucks family, of course, are among the prominent names of the time. George P. Loucks’ wife, Ann Lieber, was likely the sister of John Lieber. The two families jointly held property west and adjacent to the town. Davie Avery, who died in 1888 and was buried in the Pacheco Cemetery, may have been the son of the party owning 288.16 acres of land immediately below Lieber and Loucks’ land mentioned above, and shown as AVERY.
Henry Kinzer, who is buried in the Pacheco Cemetery and whose grave stone bears no date of birth or death, was likely the brother of Lucy S. Kinzer who was married to David Boss. Boss’ land is shown on the 1894 map as having been just southwest of Pacheco. The Williams family, of whom many are found in the cemetery, owned land northeasterly from the town and cemetery. The Bollman, Thompson, Samuel, Sherman and Baumann families each lived east of Pacheco, and have family buried in the Pacheco Cemetery.
Official Map of Contra Costa County
By at least the year 1894, the Pacheco Cemetery was being shown on the official county map as a fully separate parcel. Note that it is located both on a portion of Patrick Tormey’s parcel and George P. Loucks’ parcel. [Map courtesy of the Contra Costa County Historical Society. Highlighting and outlining of cemetery boundary by Sue Silver for better visual effect.]
This use of the cemetery by such a diverse number of families from the town of Pacheco and it’s surrounding vicinity, greatly evidences that the use of this cemetery was as a public cemetery. Obituaries for those found in the cemetery commonly stated the deceased was "buried at the Pacheco Cemetery." Even George P. Loucks upon his death in 1903, was buried in "the family plot" at "the Pacheco Cemetery." No stronger evidence of its use by the general public can be presented than through the history of the town and its many citizens who made use of it.
As a result of the effect of the law vesting the title to the cemetery in the public (former Political Code sec. 3105), neither Loucks nor Tormey held any legal interest in the cemetery at the time they executed their deeds to the Pacheco Lodge No. 117 I.O.O.F. Despite this fact, the I.O.O.F. lodge did undertake to supervise and operate the cemetery, and it remained in the possession of the Lodge until 1947. In that year an association named the "I.O.O.F. Hall Association" was incorporated, and the Pacheco I.O.O.F. Lodge No. 117 transferred the cemetery over to that organization.
The I.O.O.F. Hall Association did extensive work on the cemetery, such as a land survey for plotting the cemetery and the creation of a plot map of the grounds at that time. They cleared weeds from the grounds and apparently did install some water to the property. The plots sold by the association were for burial rights only, as apparently no endowed care fund had ever been established. No deed was given to the purchasers of plots. Instead, a receipt acted as the proof of purchase.
In March of 1950 the I.O.O.F. Hall Association returned a State Cemetery Board inquiry questionnaire to the board in which it indicated the cemetery was "about 3 acres" in size and had been established "about 1950." A handwritten notation on the returned Cemetery Questionnaire appears to have questioned that date as someone wrote: "1950 or 1850?" Then the 9 of 1950 looks as if it was underlined. It is unclear what this underlining means.
In a letter between Connolly & Taylor, Inc. (funeral directors in Martinez) to Memory Gardens of Contra Costa, Inc. located in Concord, in the fall of 1961 C. Emory Taylor advised them: "This cemetery is commonly known as The Pacheco Cemetery; however the correct name is: I.O.O.F. Cemetery, located on Blum Road, Martinez (Rural) California." Following this, another questionnaire was returned to the Cemetery Board by the I.O.O.F. Hall Association. This time they indicated the cemetery had been established in 1876, and that it was five acres in size, with only one and a half acres having been developed.
A final questionnaire was sent to the State by the association in August of 1969. Signed by treasurer David S. Wilson, Mr. Wilson indicated the date the cemetery was established as: "Part approximately 1890. Additional ground acquired 1903." Wilson listed it as five acres in size, and stated that all five acres had been developed.
In 1974, the association sold the cemetery to Lawrence and Geraldine Cordeiro. Thereafter, it suffered a series of ownership transfers that appear to have mostly been to the detriment of the cemetery and its’ occupants. In 1977, under the ownership of the Oakland-based Associated Funeral Directors (AFD) (Jon D. Hall and Alfred E. Goring), the cemetery was renamed to "Hidden Valley Cemetery."
A crematory was constructed by the AFD, of which newspaper articles reported allegations that graves were obliterated during the construction phase. According to an article published by Lesher News Bureau, "[The] sheriff’s office has reported that bones, apparently remains from graves torn open during construction have been unearthed." No charges were filed by the Contra Costa County district attorney’s office against the operators.
In 1984, the Contra Costa County Tax Collector recorded a tax lien against the Hidden Valley Cemetery property. The cemetery was sold in 1989 to Sentinel Cremation Society, Inc. It was sold again in 1991, this time to John Verrico and others in partnership with him. Verrico renamed the cemetery Pacheco Pioneer Cemetery. In 1991, a corpse from the Pacheco Pioneer Cemetery was illegally dug up and was found lying along a nearby street. In 1992, Verrico announced the cemetery would be sold to yet another company, effective July 31 of that year.
In August of 1993, the new owner was the Alternative Group, Inc. Under the direction of Ilona Gawenda, the cemetery received yet another name change - "Seasons." At the time, Ms. Gawenda was quoted as saying that there were only 200 traditional burial sites left in the cemetery, except for those members of families with established family plots. The cemetery was heavily vandalized in January of 1994.
Gawenda filed for bankruptcy protection in 1995, leaving the cemetery indebted to the Lippo Bank which had loaned substantial funds to Gawenda who used the cemetery as collateral for the loan. In an article published December 29, the bankruptcy trustee was quoted as having said there were 3000 burial sites available in the cemetery. Thereafter, the cemetery was apparently abandoned, and no one appears to have been supervising either the grounds or interments that may have occurred.
Sometime around 1996 or 1997, Chris and Laurel Rogers bought the Lippo note held by the bank. It is unclear if this transaction was an outright sale of the cemetery, or whether the Rogers merely took on the indebtedness of the cemetery corporation. The Roger’s renamed the cemetery, Hidden Valley Cemetery.
In the summer of 1998, after the discovery of decomposing human remains left here and there by the Rogers, their license to operate the cemetery and five funeral homes owned by them was suspended by the Department of Consumer Affairs. The charges against the Rogers were dropped by the Attorney General’s Office in exchange for their agreeing to the revocation of their license to operate the cemetery and funeral homes. The State deferred almost $31,000 in fees which will be reassessed to the couple should they ever reapply for licensing. Shortly before this, a class action lawsuit was filed on behalf of those injured by the couples’ actions.
Since then the cemetery has been under little, if any, supervision whatsoever. In June 2000, the county declared it a fire hazard and posted the property for abatement. The following month it was cleaned by the county General Services Department personnel.
In the spring of 2001, a settlement was reached in the lawsuit against Chris and Laurel Rogers, amounting to a reported four million dollars. Attorney Richard Brown, on of the attorneys who represented the families in the successful litigation, is believed to have also been appointed conservator of what remained of the endowed care fund once held by the prior cemetery operators.
In June of 2002, the cemetery was again posted for abatement by the County. Within a few weeks of that time, Richmond funeral directors Anthony Jordan and Charlie Clay emerged and took charge of the premises even prior to a pending transfer of the note apparently still held by the Rogers.
Two formal meetings have been held to discuss possible resolution to the ongoing problems the Pacheco Cemetery has experienced over the last twenty-five years. The first meeting was held on July 23, 2002. The second on August 7, 2002.
As a rule, Saving Graves does not advocate the discussion of the existence of people of prominence in order to compel interest in preserving historic cemeteries. However, in this instance it might be important to note that the "residents" interred at Pacheco Cemetery include:
Ralph Diedrich Bollman (1892-1982): A native of Contra Costa County, Mr. Bollman was the son of early Contra Costa resident, Henry G. Bollman, whose property is seen on the 1894 map of the county. Mr. Bollman was once a county supervisor for the district of his residence. He also served as the chairman for both the Mt. Diablo Fire District and the Contra Costa Water District.
Joseph Arthur Boyd (1863-1920): Joseph Boyd was the first mayor of Concord when the city was incorporated in 1905.
Henry W. Bott (1855-1944): Mr. Bott was a member of the first city council of Concord in 1905, at the time of the city’s incorporation. He served on the city council for 35 years, and was the Mayor from 1921 to 1922.
Ivey and Brubeck Family Plots: Between 1907 and 1964, several members of the Ivey and Brubeck families were interred in the Pacheco Cemetery. The two families are related by marriage and are ancestors of jazz musician Dave Brubeck, whose abilities and talent in the entertainment industry are legendary.
William Henry Eddy (1872-1956): Mr. Eddy was a member of the Concord City Council for 18 years. He was also the Chief of the Concord Fire District of the county.
George Clarence Thompson Family: Mr. Thompson was the husband of Lida Baldwin, granddaughter of James Henderson Carothers, the founder and father of the town of Pacheco in 1857.
George Washington Whitman (1810-1901): Mr. Whitman was elected as the fourth California State Controller on September 5, 1855, running as a member of the American Party. He took office on January 7, 1856. According to the 1909 California Blue Book:
"On February 13, 1857, a resolution was passed by the Assembly impeaching Whitman for misdemeanor in office, and on the 24th, articles of impeachment were reported by a committee; the Senate, on March 9th, convened as a high court of impeachment, and on April 21st Whitman was acquitted. Governor Johnson had, on February 25th, appointed Edward F. Burton, American [Party], Controller, and he performed the duties of the office until the acquittal of Whitman. At the election held September 2, 1857, JAMES W. MANDEVILLE, Democrat, was elected Controller, but he did not qualify, having been appointed United States Surveyor General for California a few days before the election. On January 21, 1858, Governor Weller nominated SAMUEL H. BROOKS, Democrat, for the office, but the Senate refused to confirm, and on the 27th the Governor withdrew the nomination... On February 4th, the Governor nominated AARON R. MELONEY for the office, and the Senate confirmed. Afterwards, on April 26, because of some doubts expressed in regard to the regularity of the appointment, the Governor again nominated Meloney, and he was again confirmed. Whitman refused to surrender the office, claiming that he was entitled to hold it until his successor should be elected and should qualify, and that as MANDEVILLE had been elected, the Governor had no right to appoint. The matter was taken to the Supreme Court, and a final decision was rendered in Meloney’s favor at the July term, 1858. He took office by virtue of this appointment and decision on October 12, 1858. Whitman died in Contra Costa County in 1891."
Other people of prominence and note during their lifetimes may also be found to have been interred in the Pacheco Cemetery. Those noted above are the few who are known at this time.
In accordance with section 3105 of the former Political Code, the title to the lands used as a public cemetery by the residents of Pacheco and vicinity appear to have vested in the public, no earlier than January 1, 1879, but most certainly previous to 1900. The effect of this statute was binding upon the authorities to which the codes following it were applicable. In this instance, section 3109 assigned to the board of supervisors of the county in which the particular cemetery was situated, the duty and obligation for the management and control of the cemetery.
The effect of section 3105 of the Political Code was not permissive, but instructive. It stated that the title to lands used as a public cemetery "is vested in the inhabitants of the city, town, or village,..." There can be little doubt as to the intent of the Legislature in approving the language of this code.
Because of this, and because section 1007 of the Civil Code prohibits the adverse possession as against any publicly owned lands, Saving Graves maintains that the fact this cemetery became operated by private individuals is of no legal consequence to the title acquired by the public through operation of law. We do not believe the County of Contra Costa may ignore these issues of law without first pursuing an opinion from the Court. To do so at this time would be tantamount to malfeasance and a violation of the public trust.
If the Court were to examine the deeds executed by George P. Loucks, et. al. and Patrick Tormey in 1900 and 1903, respectively, we believe that it would rule that neither Louck’s nor Tormey’s deed was valid. The reason for this is that each man described the same parcel of land, only of which each owned just a portion of. Therefore, Tormey’s deed could not have affected the title to land belonging to Loucks and Louck’s deed could not have affected the title to land belonging to Tormey.
Irrespective of the net effect of the combined deeds, we do not believe the Court would interpret these deeds to be valid. If this were the case, then none of the subsequent deeds to the property would be valid, since the title would be clouded by the initial instruments transferring the interest in the properties.
While some might argue that property which has been assessed, and for which property taxes have been paid over a period of years, would be sufficient to ripen the property to the party paying such taxes, we would disagree. When the public acquired title to the Pacheco Cemetery through operation of law, the cemetery became inalienable to the public according to Civil Code section 1007. Therefore, no matter what amount of taxes may have been paid over what length of time or by whom, the explicit prohibition against adverse possession of public lands would prevail.
It is our opinion that the title to the Pacheco Cemetery that was in use by the inhabitants of the town of Pacheco and vicinity did vest in the public through operation of the former Political Code earlier than 1900, and that the board of supervisors of the County of Contra Costa is the legal owner according to the effect of that code and section 3109, that followed it.
Note: In it's original form, this document contained numerous footnotes citing sources and other information referenced in the text. For specific inquiry, please contact Sue Silver.