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Canada de Cochiti Grant

by J. J. Bowden

 Antonio Lucero, a landless resident of the Town of Albuquerque, appeared before Governor Juan Domingo de Bustamante and registered a tract of vacant land situated upon the Mesa of Cochiti “where the Indians who rebelled retreated” for the support of his family. He described the tract as containing ten fanegas of wheat planting land, two of corn, and a sufficient quantity of land to pasture his herds of small stock and horses. He stated that the requested tract was bounded:

On the north, by the old Pueblo of Cochiti; on the east, by the Rio Grande; on the south, by the lands of the Indians of Cochiti; and on the west, by the Jemez Mountains.

Bustamante granted the request on August 2, 1728, and directed the alcalde of the Queres Nation to place Lucero in royal possession of the premises if, after citing the adjoining landowners, he encountered no legal obstacles to the concession. Pursuant to the governor’s instructions, Alcalde Andres Montoya went to the grant on August 6, 1723 and after finding that no person had a better right to the land, delivered possession of the grant to Lucero.[1]

Cayetana Montano and the eleven other grandchildren of Antonio Lucero appeared before Alcalde Antonio de Armenta contesting the appropriation of a portion of the grant by Antonio Gallegos, Lieutenant of the Cochiti Indian Auxiliaries, as a pasturage for his troop’s mounts. It appears that Governor Juan Bautista de Anza had authorized Gallegos to use such land for that purpose. In a decision dated November 2, 1785, Armenta held that the land in question belonged to Antonio Lucero’s heirs and its appropriation by Gallegos would cause them very grievous harm. Therefore, he gave the petitioners a copy of his decision for their protection in case their right to the land was ever questioned by any tribunal or judge.[2]

Felipe Sandoval, the husband of one of Antonio Lucero’s great‑great granddaughters, filed a certified copy of the grant papers in the Surveyor General’s Office on April 1, 1867, together with the testimonio of the grant, which was very mutilated. The certified copy had been made by Juan Antonio Cabeza de Baca, Alcalde of Cochiti, on December 30, 1817. The testimonio contained most of Lucero’s original petition and part of Bustamante’s granting decree. However, Bustamante’s signature had been torn off and the act of possession was missing. For some unexplained reason the claimaints’ failed to request an investigation of their claim until 1882. In the meantime, Juel Parker Whitney systematically had purchased the interests of a majority of Lucero’s descendants. On July 22, 1882, Whitney petitioned[3] Surveyor General Henry M. Atkinson seeking the confirmation of the grant. Atkinson received a great deal of testimony pertaining to the use and boundaries of the grant. It tended to prove that the claimants and their ancestors had occupied the premises “at a period long anterior to that which it would be possible to show by oral evidence based on the personal knowledge of the witnesses.” It also indicated that the boundaries claimed by the claimant embraced an area “something like 500 square miles of territory, and extending from the Rio Grande on the east to the top of the Jemez Mountains, northwest of the present Pueblo of Jemez or amount 40 miles east and west from 12 to 15 miles in width. Amado Chaves, Land Commissioner for the Territory New Mexico wrote Atkinson on November 25, 1882, stating:

I do not know whether the grant is genuine or net, but I do know that they are trying to perpetrate a fraud upon the government as well as upon many people of the Territory by trying to prove that one of the boundaries of said grant —La Sierra de Jemez, the west boundary—is far beyond from where it really is. If the grant is approved as they claim it, the Government will be swindled out of an immense number of acres of land, and as a number of other grants would be taken in the survey of this grant, many people would lose their homes and suffer a great deal.

He called attention to the fact that the Jemez Mountain was divided in places by long canyons with the eastern portion a great distance from the western portion, and the claimants were claiming that the western boundary of the grant was located along the western instead of the eastern branch of the Jemez range.

In a lengthy opinion[4] dated August 25, 1883, Atkinson held that the claimants’ muniments of title were not admissible as evidence since (1) the mutilated copy of the purported testimonio was not executed by Bustamante, and (2) there was no evidence that an alcalde had authority under Spanish law to authenticate any document for purposes of perpetuating evidence. Although the claimants’ title papers were inadmissible, he found that the oral circumstantial evidence presented by the claimants was sufficient to establish a presumption that a grant had been made in favor of Lucero for the lands, which his heirs and assigns occupied for agricultural and grazing purposes. He closed the opinion with the statement that:

The extent of the tract so occupied, held, and used, shall be clearly shown and established by further evidence to be submitted prior to an official survey thereof but to be limited and restricted as indicated in this decision.

L. Harrison, Assistant Commissioner of the General Land Office, after carefully reviewing Atkinson’s opinion, directed Atkinson’s successor, Surveyor General Clarence Pullen, to survey the claim “according to the boundary calls in the grant, leaving final disposal of title to Congress.” Harrison stated that the object of the survey was to segregate the land covered by the grant from the public domain for the protection of the public as well as settlers and in order that the claim might properly be presented to Congress for its action. In response to Harrison’s decision, Pullen commissioned Deputy Surveyor Jacob F. Laderer to survey the grant. In an effort to determine the location of its western boundary, he took the affidavits of three Cochiti Indians, who stated that the Jemez Mountains were located 25 to 30 miles west of the Rio Grande. The survey was made during the months of May and June, 1885, and depicted the grant as measuring about six miles from north to south, 26 to 31 miles in width, and containing 104,554.25 acres of land. It also showed that the grant conflicted with the Canon de San Diego, Ramon Vigil, Ojo de Barrego, and Rito de los Frijoles Grants. Approval of the survey was protested by sundry interested parties.

Meanwhile, Grover Cleveland had been elected president and no problem caused him more concern than the wholesale spoliation of the public domain.[5] Within sixty days after taking office, Cleveland, Secretary of Interior L.Q.C. Lamar, and Commissioner of the General Land Office, William A. J. Sparks, instituted wide spread land reform measures. George W. Julian was appointed as Surveyor General of New Mexico with instructions to solve the labyrinthine land grant problem. However, Julian was steeped in prejudice against New Mexico, its people, and their property rights. He asserted that government had been robbed of millions of acres of land and maliciously attempted to discredit his predecessors in office.[6] The Canada de Cochiti was one of the many grants reexamined by Julian. In an opinion[7] dated February 27, 1886, he stated that the first, and perhaps only question to he considered was the validity of the grant, for if none had been made, there was no need to go into the question of the boundaries. He agreed with Atkinson that the certified copy of the grant was not properly authenticated and, therefore, was not acceptable as evidence. He held that in order to maintain a title by secondary evidence a claimant must show that:

1. The grant was obtained and made in the manner required, at some former time, and recorded in the proper public office;

2. That the papers in that office, or some of then, have been lost or destroyed; and

3. He must support this proof by showing that within a reasonable time after the grant was made there was a judicial survey of the land and actual possession by him, by acts of ownership exercised over it.

Since the claimants had failed to meet this burden, he recommended that the claim be rejected. Notwithstanding the fact that he had recommended, the rejection, Julian felt obligated to discuss the other questions raised by the claim. He asserted that little credit could be given to the parol evidence offered to sustain the validity of a claim for it had been shown to be “utterly unreliable in many instances.” Continuing, he stated that in the matter of land titles, perjury and subordination of perjury had become frightfully common in New Mexico. In connection with the question or the validity of the survey, he noted its mere size indicated that it was erroneous. He also called attention to the fact that Lucero had requested only a piece of land to cultivate ten fanegas of wheat and two of corn and to pasture his herds of small stock and horses. Julian calculated that the land it requested by agricultural purposes would cover only 32 acres. Since grants covering large tracts for grazing purposes had been held to confer only a usufruct, he believed that the survey, which covered an area of 163 square miles, was unconscionably erroneous.

As a result of Congress’ failure to act promptly upon his recommendations, Julian took his crusade to the public. In a highly vindictive article, he proudly proclaimed that he had “overhauled the work of my office for the past thirty years and made supplemental reports on many of the most important cases.” In connection with the Canada de Cochiti Grant, he wrote:

The Canada de Cochiti grant is dated August 2, 1722. The grantee petitioned for “a piece of land to plant thereon, and on said piece of land to cultivate ten fanegas of wheat and two of corn,” being about 32 acres, and to pasture his “small stock and horse herd.” The validity of the grant is not shown, nor is there even an equitable claim; but it was approved by the Surveyor General, and the survey covers a strip of land averaging from five to six miles in width and from twenty five to thirty in length, aggregating an area of 104,554 acres, or a little more than, 163 square miles. The whole tract is reserved from settlement on behalf of the metropolidts who claim it without right.[8]

By writing this article, Julian further complicated the very problem, which, as Surveyor General he had the duty to settle. As a result of his charges of fraud and land stealing, it is not surprising that Congress refused to pass upon the validity of any private land claim. However, it also should be recognized that Congress was not equipped to investigate the validity of the pending claims which by that time were legion. Recognizing its obligations to the claimants of Spanish and Mexican land grants under the Treaty of Guadalupe Hidalgo, and realizing that a special land court was the logical forum to settle the complex problem, Congress on March 1, 1891[9] created the Court of Private Land Claims with authority to adjudicate both perfect and imperfect claims.

On March 2, 1893, Joel Parker Whitney and a number of other heirs and assigns of Antonio Lucero filed suit[10] in the Court of Private Land Claims seeking the confirmation of the grant. A similar suit was filed[11] on the following day by another set of claimants, who also claimed interests as heirs of Antonio Lucero. Since the two cases covered the same property under the same title, the court consolidated them for purposes of trial.[12] The government in its answer put in issue the allegations contained in the plaintiffs’ petition and asserted a number of special defenses denying the execution of a grant, the authority of Alcalde Armenta to make the adjudication contained in the 1785 proceedings, and the authority of Alcalde Baca to issue a certified copy of the testimonio of the grant. Further answering, it alleged that if a valid grant had been issued it was limited to a small tract located within the boundaries set forth in Lucero’s petition.

Upon a hearing of the consolidated case, the plaintiffs offered their muniments of title as evidence of their claim. The court sustained the government’s objection to the introduction of the certified copy of the testimonio and 1785 proceedings but received the fragmentary and mutilated testimonio. Both sides offered a large amount of evidence concerning the location of the northern and western boundaries of the grant. The government’s evidence tended to show that the northern boundary should be located at the old Pueblo of Cochiti located on the Mesa of Cochiti to which the Indians had retreated during the reconquest of New Mexico in 1692. There was no dispute over the location of this mesa and pueblo. The plaintiffs, in turn, pointed out that Lucero’s petition described the requested tract as being located at the old Pueblo of Cochiti on said mesa but fixes the northern boundary at an older pueblo known as the “Pueblo Viejo,” which was also located on the mesa but about seven miles further northwest. The government’s testimony tended to show that the western boundary should be located at the first range of hills located west of the Rio Grande, which were located near the old Pueblo of Cochiti, while the plaintiffs testimony showed that the western boundary should be located much further west and along the crest of the mountains which formed the east boundary of the Ojo de Espiritu Santo Grant.

The court, on September 29, 1894, rendered an opinion[13] in which it confirmed the grant in the name of Antonio Lucero for the use and. benefit of all parties claiming under him and fixed the boundaries of the grant as follows:

On the north, at the old Pueblo of Cochiti, which is situated on the Mesa of Cochiti on the south side of the Canada of Cochiti and. which pueblo is located about 8,190 feet in a northerly direction from the northwest corner of the lands of the Indians of the Pueblo of Cochiti; on the east, along the Rio Grande; on the south, along the lands of the Indians of the Pueblo of Cochiti; and on the west, at said old Pueblo of Cochiti.

Since the court had recognized the validity of he grant, the plaintiffs felt the court had erred in so restricting the boundaries of the, grant to an area of approximately 5,000 acres. Therefore, they appealed the decision to the United States Supreme Court. However, plaintiffs failed to have the cause timely filed and docketed and the Supreme Court dismissed[14] the appeal on February 4, 1895. The plaintiffs petitioned the Court of Private Land Claims on March 8, 1895, requested a new appeal on grounds that the court’s first decree had not shown the names of all the defendants and because the clerk had been unable to prepare the transcript of the trial in time for them to perfect their first appeal. The court granted[15] a new appeal on March 11, 1895. The Supreme Court on May 24, 1897 found[16] that although the Pueblo Viejo was undoubtedly the oldest pueblo on the mesa, the old Pueblo of Cochiti, to which the Indians retreated in 1693, marked the north boundary of the grant. It noted that at the time o the issuance of the grant the old Pueblo of Cochiti was not an old pueblo, having been burned by the Spaniards not much more than thirty years before, but noted that it does not take long for ruins to become known as “old.” In connection with the western boundary it noted that that boundary, like most Spanish grants, was fixed by a natural object or landmark. Therefore, it concluded that it would be logical for the missing noun following the word “Jemez” in the description, of the western boundary contained in the mutilated grant papers in all probability was either “river”, “Pueblo”, or “mountain”. Since the Jemez River was far to the west of the Jemez Mountain and there was little commerce between the Jemez and Cochiti Pueblo at the time of the grant, the word “mountain” would appear to be the more logical. Also, it noted that the word “mountain” was contained in the certified copy of the grant. The fact that the “old pueblo” had been made the northern boundary but was not expressly mentioned as being the western boundary led the court to believe that another boundary to the westward was intended. In conclusion, the court held that the Court of Private Land claims had erred in locating the western boundary at the old Pueblo of Cochiti and it should be extended westward to he nearest sierra or other natural object that bore the name of Jemez. Thus, the case was remanded to the Court of Private Land Claims with instructions to hold further proceedings in conformity with its opinion.

By decision[17] dated February 16, 1898, the Court of Private Land Claims confirmed the grant to all those who held a derivative interest under Antonio Lucero and fixed its boundaries:

On the north, at the old Pueblo of Cochiti which was located about 8,190 feet north of the northwest corner of the lands of the Indians of the Pueblo of Cochiti; on the east, along the Rio Grande; on the south, at the lands of the Indians of the Pueblo of Cochiti; and on the west, along the crest of the first Sierra of Jemez. The decision expressly excepted any lands previously sold or otherwise disposed of by the United States.

Neither party appealed this decision. Once it became final, Deputy Surveyor John H. Walker was directed to survey the grant. His survey was made between April 21, 1899 and April 7, l900 and showed that the grant contained 19,112.78 acres. The grant was patented on March 7, 1901. [18]

[1] H.R. Exec. Doc. No. 42, 48th Cong., 2d Sess., 5-6 (1884).

[2] Ibid., 6‑7.

[3] The Canada de Cochiti Grant, No. 135 (Mss., records of the S.G.N.M.).

[4] H.R. Exec. Doc. No. 42, 48th Cong., 2d Sess., 20‑26 (1884).

[5] Nevins, Grover Cleveland, 225 (1964).

[6] 2 Twitchell, Leading Facts of New Mexican History, 462 (1912).

[7] S. Exec. Doc. No. 128, 49th Cong., 1st Sess., 1‑5 (1886).

[8] Julian, “Land Stealing in New Mexico,” 145 The North American Review, 22 (1887).

[9] Court of Private Land Claims Act, Chap. 539, 26 Sta. 854 (1891)

[10] Whitney v. United States  No. 205 (Mss., Records of the Ct. Pvt. L. Cl.).

[11] Hurtado v. United States, No. 240 (Mss., Records of the Ct. Pvt. L. Cl.).

[12] 2 Journal 209 (Mss., Records of the Ct. Pvt. L. Cl.).

[13] 2 Journal 259‑262 (Mss., Records of the Ct, Pvt. L. Cl.). Charles Pilkey discovered the Sampson Mine which was located on the unconfirmed portion of the Canada de Cochiti Grant on July 10, 1893. Pilkey entered into a partnership with Henry Lockhart and Benjamin Johnson for the development of the mine. J. Q. Willis contended that the three owners of the Sampson Mine had abandoned their claim and relocated it as the Washington Mine. Lockhart filed an ejectment suit against Willis in the District Court of Bernalillo County, New Mexico, to recover the mine. The District Court held for Willis and Lockhart appealed to the Supreme Court of New Mexico contending that at the time Willis filed his mining claim the Canada de Cochiti Grant was before the United States Supreme Court on appeal and pending the final disposition of the suit all land covered by the grant was reserved from entry under the mining laws. The New Mexico Supreme Court held that the lands were not reserved and affirmed the decision. Lockhart v. Willis, 9 N.M. 344, 54 P. 336 (1898). The case was further appealed to the United States Supreme Court, which held that the 15th Section of the Court of Private Land Claims Act, Chap. 539, 26 Stat. 854 (1891) repealed the 8th Section of the Act of July 22, 1854, Chap. 103, 10 Stat. 308 (1854), which reserved from sale or other disposal all the lands covered by grants favorably reported upon by the Surveyor General. Therefore, land claimed to be within the limits of a Mexican grant is not withdrawn and reserved from entry under the mineral laws of the United States by reason of the fact that the claim was before the Court of Private Land Claims for adjudication. The court also noted that mineral lands ordinarily were not covered by Mexican grants and the Court of Private Land Claims Act provided that minerals would not pass with the confirmation of the grant unless the grant clearly showed that there had been a valid donation or sale of minerals to the grantee. Lockhart v. Johnson, 181 U.S. 516 (1901).

[14] Whitney v. United States, 159 U.S. 269 (1895) (mem.).

[15] Vacation Minute Book 19 (Mss., Records of the Ct. Pvt. L. Cl.).

[16] Whitney v. United States, 167 U.S. 529 (1897).

[17] 3 Journal 375 (Mss., Records of the Ct. Pvt. L. Cl.).

[18] The Canada de Cochiti Grant, No. 135 (Mss., Records of the Pvt. L. Cl.).