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Bracito Grant

 

 by J. J. Bowden

 El Bracito, an extremely fertile tract of bottom land situated within a prominent horseshoe bend of the Rio Grande is one of the best known natural landmarks in the Mesilla Valley. It is located approximately thirty‑three miles north of El Paso del Norte. For centuries it was used as a paraje or campsite by the travelers using the Camino Real. Realizing the agricultural value of the lands at El Bracito, Juan Antonio Garcia de Noreiga, a retired Lieutenant of Dragoons of the Provincial Militia of El Paso del Norte, petitioned Joaquin Real de Alencaster, Governor of New Mexico in 1805, for a grant of land situated on the east side of the river extending from El Bracito south to Lake Trujillo. In his petition, Garcia agreed to build a house and corrals upon the land, cultivate the soil, and maintain a force of fifteen armed men on the grant for the protection of the settlement, the travelers plying the Camino Real, and the miners working in the surrounding mountains, until a sufficient number of colonists had been attracted to the area to form a town. Alencaster issued a decree on August 4, 1805, which declared that the grant would be issued if a permanent colony was established at El Bracito. Shortly thereafter Garcia and a number of his employees moved to El Bracito, built a house and other buildings on the land, constructed the Bracito acequia, and commenced farming the rich valley lands. Garcia was also able to purchase peace from the Apache Indians by giving them the corn which he grew upon the bank of his irrigation ditches.

Having thus formed the nucleus for a new colony, Garcia petitioned Bernardo Bonavia, Commander General of Durango on November 29, 1816, for a grant covering the lands which he was then occupying and claiming at El Bracito. In his petition, he stated that eleven individuals from El Paso del Norte had joined him in the formation of the new colony. He promised to continue furnishing the hostile Indians with provisions from his fields in order to keep them peaceful. Bonavia referred the petition to Jose Ordas, Lieutenant Governor of El Paso del Norte for his recommendation. Ordas, in a report dated June 29, 1819, recommended the granting of the land to Garcia. Eighteen days later, Bonavia returned the matter to Ordas for a more detailed report. Bonavia especially requested a general description of the lands covered by the petition and a list of the persons who had agreed to join Garcia in the venture.

In response to this request, Ordas reported that the tract covered an area of three leagues in length and varied in width from one‑fourth of a league to more than one league and was situated about fifteen leagues north of the last houses of the town of El Paso del Norte. He further stated that the lands offered every facility for cultivation and that residences for both judicial and religious officials could be established at the center of the grant. A list of the eleven colonists was attached to his report. The tenor of this report made it obvious that the colonists would have to furnish houses for the judicial and ecclesiastical officials in order to obtain a grant and that the settlement would be placed under the jurisdiction of El Paso del Norte. Due to the reluctance of the colonists to accept these conditions, Garcia, on September 12, 1819, requested Ordas to defer all further action on his petition.

On February 18, 1820, Garcia petitioned the Governor of New Mexico for a grant covering the lands at El Bracito. In this petition, he advised the Governor that the men who had previously volunteered to accompany him in the colonization of the requested lands had abandoned the project but that he was still personally interested in acquiring the lands at El Bracito which he had continuously occupied and cultivated for more than eleven years. The petition ended with a prayer that a grant covering such lands be issued to him as an individual. This petition was rejected by Governor Facundo Melgares on August 18, 1820, on the ground that he had no jurisdiction over the lands in question.

Garcia repetitioned the Commander General of the state of Durango asking for the premises on July 28, 1821. This petition was referred to the Comptroller of the State for his approval and further action. The Comptroller recommended the issuance of the grant to Garcia provided the lands covered thereby were suitable for colonization and were vacant. To secure an answer to these questions, the Alcalde of El Paso del Norte, George Guerena, was ordered to investigate the matter. On April 19, 1822, Justice Guerena reported that the lands were a part of the public domain and were suitable for both farming and stock raising.

Upon learning of Garcia’s petition, Bentura Carbajal, Jose Valarde and Jose Maria Garcia, three prominent citizens of El Paso del Norte, filed a protest with Alcalde Guerena against the issuance of the grant on the ground that if the lands were granted, the inhabitants of El Paso del Norte would be deprived of certain privileges which were vital to the continued welfare of that town. They called attention to the fact that even though the lands were a part of the public domain, they were being used by many of the inhabitants of El Paso del Norte as a pasturage for their livestock and the groves of trees located along the river bottom at El Bracito furnished most of the city’s timber and fuel supply. Before any further action could be taken upon Garcia’s request, the Apaches went on the warpath, and it became too dangerous for Garcia to continue living upon the grant. Therefore, he was forced to move back to El Paso del Norte and temporarily abandon his claim to the land. [1]

Meanwhile, John G. Heath, a colorful American adventurer from Missouri, petitioned the Ayuntamiento of El Paso del Norte for a grant covering the twenty‑five square leagues of land surrounding El Bracito. As consideration for the grant Heath agreed to establish a colony upon the land. Due to the increased hostility of the Indians, the Ayuntamiento favored the formation of settlements as buffers against the surprise attacks of the savages. Therefore, the Ayuntamiento granted the lands to Heath on April 25, 1823, subject to the approval of the Governor of New Mexico. Upon learning of the grant, the officials of New Mexico censored the Ayuntamiento and re­pudiated the grant.[2]

Shortly thereafter jurisdiction over the El Bracito area was transferred to the newly formed State of Chihuahua. Immediately after this change in sovereignty, Ordas proceeded to grant the lands at El Bracito to Garcia. Sometime during the year 1824 or 1825, Garcia moved back to the grant and built an elegant adobe hacienda. He cultivated most of the grant’s valley lands and pastured sheep on its mesa lands. In 1827, due to advanced age and illness, Garcia moved back to El Paso del Norte, but his servants and employees continued to occupy and use the property. After Garcia’s death in 1828, his personal influence over the Apaches was lost and they soon made further living on the grant impossible. It was vacated a short time later.

In 1851, the heirs of Juan Antonio Garcia entered into an agreement with Hugh Stephenson to sell him two-thirds of the grant for $1,000.00. Stephenson agreed to pay all costs incurred in clearing title. The Garcia heirs gave Stephenson all of the title data they had pertaining to the grant but they did not possess a copy of Lieutenant Governor Ordas’ decree of 1823 which actually granted the land to Juan Antonio Garcia. To obtain this important link in his chain of title, Stephenson caused a diligent search to be made of the Archives of El Paso del Norte in an effort to locate the expediente of the grant, but it was fruitless. However, Stephenson was able to secure a number of affidavits which explained that following Colonel Alexander W. Doniphan’s victory at the Battle of Bracito a portion of his troops were quartered in the Municipal Building at El Paso del Norte and a large portion of the public archives, which had been deposited in that building were destroyed by the Americans. Therefore, he believed that the expediente probably had been lost or destroyed by the American forces.

One of the cases heard during the May, 1853, term of the United States District Court for the Third Judicial District of the Territory of New Mexico was a friendly suit for the partitioning of the Bracito Grant between the heirs of Juan Antonio Garcia and Hugh Stephenson. The Court recognized the validity of the grant and ordered it surveyed and partitioned by Stephenson Archer, District Surveyor of the El Paso and Presidio Land District of Texas. Archer’s survey showed that the grant covered 20,193 acres of land. The Court then ordered Francisco Garcia to convey the upper or northern two‑thirds of the grant to Stephenson and Stephenson to pay Garcia $1,000.00 and deed him the lower or southern third of the grant.[3]

Fortified with the District Court’s recognition of the Bracito Grant, Stephenson and the heirs of Juan Antonio Garcia presented the claim to Surveyor General William Pelham for confirmation on August 6, 1856. The petition stated Juan Antonio Garcia, his heirs and assigns, had occupied and used the following described tract of land:

Beginning at a point on the Rio Grande known as the mouth of the Bracito Acequia, and running thence south along said river a distance of three leagues to a lake known as Trujillo Lake; thence extending back towards the east from said river to a range of sand hills; thence in a northerly direction along said sandy hills, varying from two to four and a half miles from the river to a point due east of the place of beginning; and thence to the place of beginning.

It also stated that such use and occupancy had been continuous since 1805 and that the tract had been duly granted to Garcia in 1822 or 1823 by Lieutenant Governor Jose Ordas. It was further alleged that while the grant papers had been lost or destroyed by the American troops in 1846, the validity of the grant had been fully proven and established in the United States District Court. The petitioners closed by requesting that the grant be recognized and title confirmed into them in accordance with the Archer Survey and partition proceedings.[4]

Following a brief investigation of the claim, Pelham stated in his report to Congress dated December 31, 1856, that he was convinced that a grant had actually been made in favor of Juan Antonio Garcia by Lieutenant Governor Ordas in 1823 and that the expediente thereof had been destroyed in 1846 by Doniphan’s troops. He concluded his report by recommending that the grant be confirmed to Juan Antonio Garcia, as the petitioners had not adequately shown that they were the legal heirs and assigns of the original grantee. [5]

The validity of the Bracito grant was recognized by congress on June 21, 1860. The Confirmation Act merely referred to the grant by its reported number and stated that it was confirmed in accordance with the Surveyor General’s recommendation.[6] In order to properly manage the public domain adjoining the Bracito Grant, the United States needed to know the precise location of boundaries. Therefore, Deputy Surveyors John T. Elkins and Robert Morman were directed to survey the grant in 1878. Their work indicated that the grant embraced only 10,612.57 acres.[7] The Surveyor General approved the Elkins‑Morman survey on April 5, 1879, but the commissioner of the General Land Office rejected it on February 20, 1893, on the ground it did not correctly locate the Rio Grande River, as it ran in 1854, which formed the west boundary of the grant. The Surveyor General promptly retained Deputy Surveyor Leonard M. Brown to resurvey the west boundary of the grant using the Archer Map as a guide. The Brown survey showed that the grant contained 18,859.48 acres.[8] For some unknown reason the owners of the grant failed to press for the approval of the Brown Survey and patenting of their property. Little did they realize that their boundary problems were far from being settled.

No further action was taken in connection with the boundaries of the Bracito Grant until September 1, 1900. On that date, the Court of Private Land Claims confirmed the Santo Tomas de Yturbide Colony Grant which joined the Bracito Grant on the west. The Court’s decree defined the eastern boundary of the Santo Tomas de Yturbide Colony Grant as being the western boundary of the Bracito Grant. Jay Turley was hired by the Surveyor General to survey the Santo Tomas de Yturbide Colony Grant in January, 1901. His survey of the common boundary line between the two grants was based on Leonard M. Brown’s survey of 1893. The claimants of the Santo Tomas de Yturbide Colony Grant protested the approval of the Turley Survey on the ground that it failed to correctly locate the east bank of the river as it ran in 1854. They alleged that the major portion of the common boundary line between the two grants should be located approximately two miles further east. The Court sustained the protest and held that the Turley Survey did not correctly locate the east bank of the Rio Grande River as it flowed in 1854 and ordered a resurvey of the line forming the common boundary between the two grants. Jay Turley resurveyed the Santo Tomas de Yturbide Colony Grant in December 1902, in accordance with the special instructions given him by the Court. The Court approved Turley’s resurvey of the Santo Tomas de Yturbide Colony Grant on June 26, 1903, and a patent based on the Turley resurvey was issued to the claimants of that grant on October 17, 1905.[9]

Shortly after the Santo Tomas de Yturbide Colony Grant was patented, the owners of the Bracito Grant requested the Commissioner of the General Land Office to issue them a patent for the Bracito Grant in accordance with the Leonard M. Brown Survey of 1893. Upon receipt of this request, the Commissioner of the General Land office approved the Leonard M. Brown Survey, and gave notice of his intention of patenting the Bracito Grant even though it overlapped and conflicted with the Santo Tomas de Yturbide Colony Grant by approximately 5,000 acres. The claimants of the Santo Tomas de Yturbide Colony Grant protested such approval on the grounds that the Leonard M. Brown Survey did not conform with the true west boundary of the Bracito Grant. As a result of their protest, an investigation of the conflict was ordered by the Secretary of Interior on October 8, 1907, in order to determine whether or not the Leonard M. Brown Survey correctly retraced and located the west boundary of the Bracito Grant as surveyed[10] in 1854 by Stephenson Archer. The Court appointed William M. Tipton as a special investigator to study the problem. In his report dated June 30, 1908, Tipton stated that his investigation disclosed that the Leonard M. Brown Survey did not follow the Archer Survey or the river bed of 1854. He also found that the Archer Survey was so inaccurate that it was worthless as a guide to the correct location of the river of 1854. The Archer Map of the Bracito Grant showed that its eastern boundary was 21,540 varas in length, and its western boundary was 3 leagues, or 15,000 varas in length. According to the distances noted on the map, the east line should have been 43% longer than the west line, but it was, in fact, actually shorter. Based on a complete investigation of the area, he believed that the Turley Survey of December 1901, substantially followed the course of the old river bed of 1854. Tipton’s investigation indicated that in the year 1854, the river could not have made a large horseshoe bend as surveyed by Leonard M. Brown. In order to have done so the river would have to jump a five foot bank near Leonard M. Brown’s 45th station. The Secretary of Interior, in a decision dated March 20, 1909; rejected the Leonard M. Brown Survey and ordered that a resurvey of the Bracito Grant be made in accordance with the findings set forth in Tipton’s report.[11] The claimants of the Bracito Grant promptly withdrew their request for a patent stating that complete legal title to the grant had been conveyed to them by virtue of the Confirmation Act of June 21, 1860. They also objected to any further surveying of their claim. The Department of Interior acknowledged that the Act did not require the issuance of a patent where the boundaries of one of the grants confirmed thereby had been clearly defined, but in a case where there were questions concerning the location of the boundaries of a private land claim, an official survey of such a grant was necessary to properly segregate it from the public domain. [12]

The Bracito Grant was subsequently surveyed by Sidney E. Blout in September 1909, in accordance with findings contained in Tipton’s report. His survey disclosed that the grant contained only 14,808.075 acres. Blout’s Survey was approved by the Commissioner of the General Land Office on August 2, 1910.[13]

The approval of the Blout survey of the Bracito Grant finally established the boundaries of the grant and settled the difficult boundary conflict between the claimants of the Santo Tomas de Yturbide Colony Grant and the Bracito Grant.


[1] H. R. Report No. 321, 36th Cong., 1st Sess., 24-34 (1860).

[2] 2 Cessna v. United States, 169 U.S. 165 (1898).

[3] Deed Records 187 (Mss., Records of the County Clerk’s office, Las Cruces, New Mexico).

[4] The Bracito Grant, No. 6 (Mss., Records of the S.G.N.M.)

[5] H. R. Report No. 321, 36th Cong., 1st Sess., 29‑314 (1860).

[6] An Act to Confirm Certain Private Land Claims in the Territory of New Mexico, Chap. 167, 12 Stat. 71 (1860). Subsequent litigation has shown that the Bracito Grant was not a private land claim which the United States was obligated to recognize under the Treaty of Guadalupe Hidalgo. The Bracito Grant was granted to Garcia during the interim period between April 11, 1823, when the Colonization Act of January 4, 1823 was repealed, and the date of the promulgation of the Regulations of November 25, 1828. The Supreme Courts of both the United States and New Mexico have held that no provincial official or official body had authority to dispose of public lands during this period. Hayes v. United States, 170 U.S. 637 (1898); and Pino v. Hatch, 1 N.M. 125 (1855).

[7] The Bracito Grant, No. 6 (Mss., Records of the S.G.N.M.)

[8] Ibid.

[9] Barela v. United States, No. 137 (Mss., Records of the Ct. Pvt. L. Cl.).

[10] The Bracito Grant, 36 L. D. 117 (1907).

[11] The Bracito Grant, 37 L. D. 509 (1909).

[12] The Bracito Grant, No. 6 (Mss., Records of the S.G.N.M.).

[13] Ibid.