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Buena Vista Grant

by J. J. Bowden

Francisco Jose de Jubera, a resident of Arispe, Mexico, petitioned the Treasurer General of the State of the West, Nicolas Maria Gaxiola, on September 30, 1826, seeking to purchase four sitios of vacant land at the place called Maria Santísima del Carmen or Buena Vista under the provisions of Section 18 of the Act of May 20, 1825.[1] He described the requested tract as being located between the Rancho de Santa Barbara on the south and the Rancho de Calabazas on the north. He stated that, while he was landless, he possessed a sufficient number of cattle to stock the premises. Three witnesses also testified that Jubera had sufficient means to stock at least four sitios of land. Gaxiola directed the Alcalde of Arispe, Juan Correílla, on November 13, 1826 to survey, appraise, and solicit bids for the purchase of the tract for a period of thirty consecutive days and return the expediente of such proceedings to him for the final sale of the property at public auction. In response to Gaxiola’s instructions, Correílla went to Buena Vista on October 15, 1827 and questioned four impartial witnesses concerning the location of the boundaries of the tract. Each stated that the common boundary between Buena Vista and Santa Barbara was located at a large oak known as Bellota Gorda which was located on the public road about three cordeles east of a stone monument. After appointing measurers, markers, and counters, Correílla proceeded to survey the tract. First, he designated the place known as Las Casas Viejas de Buena Vista as the central point. A line was run thence south 106 cordeles to the Bellota Gorda.

 Returning to the central point, he surveyed a line northward 138 cordeles to a sharp ridge facing a white bluff situated east of the mountain and mine known as La Plomiza, which marked the southern boundary of El Rancho de Calabazas. The survey party returned to the central point and surveyed a line thence westward 50 cordeles to a bare ridge situated at the point of the Sierra del Pinito. Next, a line was measured eastward 106 cordeles from the center point to a high hill standing at the foot of Sierra de la Chihuaguia, which extends to the left of the place called San Antonio. Following the completion of the survey, Correílla appointed Jose Maria and Mauricio Dominguez as appraisers. They appraised three of the sitios at 60 pesos each and the fourth at 10 pesos for a total of 190 pesos On October 26, 1827 Correílla ordered the public solicitation of bids for the purchase of the premises for thirty consecutive days commencing November 1, 1827. Such solicitations were made, but no bidders appeared. The proceedings were transmitted to Gaxiola on December 2, 1827 to sell the land at public auction.


For some unknown reason, no further action was taken until October 21, 1830, when Gaxiola referred the matter to the Promoter Fiscal of Sonora, Luis de Urrutia, for an opinion on the validity of the proceedings. Two days later Urrutia reported that the grant papers were written on the wrong class of stamped paper and that the survey had not been properly made. In order to correct these defects, he recommended that the expediente be written on third instead of fourth class stamped paper and that the exterior boundaries of the tract be surveyed instead of merely running lines in each of the cardinal directions from the central point. Gaxiola forwarded the proceedings to the Alcalde of Santa Cruz, Jose Grijalva with instructions to prepare the title papers on the proper paper and to resurvey the premises in accordance with Urrutia’s instructions. In compliance with this decree, Grijalva, on July 19, 1831, ordered Juan Alejo Correílla, Trustee for Jubera’s widow, Josefa Morales, to furnish him with seven sheets of third class stamped paper. On the following day, Grijalva went to Buena Vista to resurvey the premises. Upon arriving, he asked Correílla to point out the southern boundary monument. Correílla advised him that he did not know where it was but that Pablo Elias, one of the original witnesses, could show him. Elias then pointed out the Bellota Gorda. After measuring a fifty vara cordel and appointing measurers, markers, and tally keepers, the resurvey was commenced at the large oak. The survey party measured east 106 cordeles to a bare ridge facing a sierra located in the midst of two passes where a stone monument was erected. Returning to the oak, a line was run west 50 cordeles to a ridge issuing from a large red rock at the edge of the Canada de Aliso whore a stone mound was erected. From this point the survey party proceeded to the monument marking the hub of the north boundary where they ran a line east 106 cordeles to a hill of red gravel with three high ridges facing a high mountain standing against Sierra de la Plomiza, where a stone monument was erected. Returning to the hub, a line was run west 50 cordeles to a little pass issuing from the hill called Cara Pintada, which faced two cottonwood trees at a bog or moist place. Grijalva calculated that the east and west sides of the tract were 244 cordeles in length and that it had a circumference of 800 cordeles The proceedings were returned to Gaxiola’s successor, Jose Maria Mendoza, by Jose Toribio Mendoza, Agent for Josefa Morales, on August 8, 1831. Mendoza, in turn, forwarded them to Promoter Fiscal Joaquin de Santa Cruz, Jr., for an opinion. On August 20, 1831 Santa Cruz found everything in order and recommended that the sale of the property proceed. Mendoza then ordered the Board of Sales to sell the tract at public auction to be held on three consecutive days commencing on September 5, 1831. On the appointed day, the Board of Sales, which as comprised of Treasurer General Jose Maria Mendoza, Alcalde Antonio Andrade, and Promoter Fiscal Joaquin de Santa Cruz Jr., met at noon in the office of the Treasurer General. The auctioneer, upon the sound of the drum, solicited bids for the tract, but no bidders appeared. The same procedure was followed on the following two days with the same result. On the third day the property was “struck off” to Jose Toribio Mendez, agent for Josefa Morales, for the appraised value of the land. The expediente of the proceedings was recorded on page 1 of the Book of Records, a notation of the sale was entered in the Toma de Razon and receipt of the 190 pesos paid by Morales for the property noted in the records of the Treasurer General.

On December 10, 1881 Frederick Maish and Thomas Driscoll, who, in the meantime, had purchased the grant from the heirs of the original grantee, filed the testimonio of the grant in Surveyor General John Wasson’s office and requested[2] its confirmation. Wasson ordered special Agent R. C. Hopkins to investigate the claim and based on his favorable report, Wasson, by decision dated January 10, 1832, held that the expediente had been duly recorded in the Mexican Archives, the grant listed in the Toma de Razon, and there was not the slightest suspicion concerning the validity of the concession. Therefore, he recommended its confirmation by Congress.

Since Congress had not acted on the claim, Maish and Driscoll brought suit[3] for its confirmation in the Court of Private Land Claims on March 1, 1893. The map filed with their petition showed that natural objects described in the resurvey of the grant embraced 45,607 acres, of which 18,648 acres were located in Arizona. The remainder of the land was located in Mexico. They offered to purchase the surplus acreage located in Arizona on the same basis as paid by Jubera and tendered the sum of $500 as payment for the excess and cost of determining same.

At the trial, the claimants offered in evidence certified copies of the title papers from the Surveyor General’s office and the Archives of Hermosillo, Mexico. Deeds were also introduced connecting the claimants to the original grantee. Oral testimony was also offered by them tending to show that their map correctly depicted the survey. The central point of the grant, Las Casas Viejas de Buena Vista, was well identified by the testimony and shown to be located about a mile south of the International Boundary.

The government contended that the grant: should not be confirmed because it was a grant of four sitios to be located within the out boundaries set forth in the resurvey and had not been located at the date of the Gadsden Treaty. In the alternative, it argued that a confirmation could be entered for only the portion of the four sitios measured from the center point, lying within the United States. It estimated this amount as being 7,128 acres. The government asserted that the grant was for a named quantity of land and not for a metes and bounds tract as contended by the claimants. In support of this position, the government introduced evidence showing that the Mexican government had sold as public domain the lands situated within the exterior boundaries of the resurvey located south of the border and lying outside the four sitios.

The Court, on November 27, 1899, announced its majority decision[4] holding that the claimants were entitled to a confirmation of so much of a four sitio tract as is located in the United States. The tract was to be located by measuring called distances of the tract from the central point. In connection with the claimants’ application to purchase the surplus acreage in the United States, the court held:

We have only to say that the same question is fully discussed in the opinion of Mr. Justice Sluss in the Perrin case,[5] decided of this date, and the views there expressed as to the decision of the court therein are equally applicable to this case, and the claim for such surplus herein is accordingly rejected.

Justices Thomas C. Fuller and W. M. Murray dissented on the ground that the grant had not been located within the terms of the Gadsden Treaty. On February 6, 1900, the claimants appealed the decision to the United States Supreme Court, but it was dismissed[6] on February 25, 1901. The grant was patented for 5,733.41 acres on May 5, 1905.[7]

 


[1] Reynolds, Spanish and Mexican Land Laws, 129‑131 (1895)

[2] The Buena Vista Grant, No. 16 (Mss., Records of the S.G.A.).

[3] Maish & Driscoll v. United States, No. 6‑1/2 (Mss., Records of the Ct. Pvt. L. CI., Ariz. Dist.).

[4] 1 Journal 161‑162 (Mss., Records of the Ct. Pvt. L. Cl.).

[5] Perrin v. United States, No. 3‑1/2 (Mss., Record; of the Ct. Pvt. L. Cl., Ariz. Dist.).

[6] Maish & Driscoil v. United States, 21 . Ct. 91 L. Ed. 1257 (1901) (mem.).

[7] B.L.M. to J.J.B., Aug. 8, 1968. 1968.