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Canon de San Diego Grant
by J. J. Bowden
Francisco García, Jesus Baca, and Pablo Gallego, for themselves and in the name of the settlers of the Town of Canon de San Diego, petitioned Surveyor General William Pelham on June 4, 1859 seeking the confirmation of the Canon de San Diego Grant. In support of their claim they filed the testimonio of certain proceedings showing that Francisco García de Noriega, his brother, Jose Antonio, and eighteen associates had petitioned Governor Fernando Chacon for a grant covering a tract of vacant land in the Canon de San Diego upon which to form a settlement. They described the tract as being bounded:
On the north, by the Vallecito de la Cueva, which is in front of the waterfall on the east, by the lands of the settlers of Vallecito; on the south, by the lands of the Indians of the Pueblo of Jemez and on the west, by a line from the middle arroyo to the Rito de la Jara.
On March 6, 1798 Chacon acceded to their wishes and granted the requested tract to the twenty petitioners, subject to the condition that each grantee was to be allotted an individual farm tract which could not be sold or conveyed but was to descend from father to son in a direct line. Should any colonist leave the settlement, his tract was to be set aside for the benefit of whomsoever should take his place. Chacon closed his decree by ordering the Alcalde of Jemez. Antonio de Armenta, to place the grantees in royal possession of the premises. Armenta met with the grantees and representatives of the inhabitants of the Pueblo of Jemez eight days later. In order to avoid future disputes between the two settlements, Armenta reestablished the pueblo’s north line. He found that the Indians claimed a few trees and certain “surplus lands” lying 2100 varas north of their boundary. Since the king had ordered the settlement of the surplus lands and the grantees had agreed to protect the trees claimed by the Indians from damage, Armenta decided that there was no impediment to his proceeding with the delivery of royal possession of the grant. Therefore, he performed the usual ceremonies necessary to place the grantees in peaceable Possession of the land. Next the Alcalde distributed the individual farm tracts amongst the grantees. Each of these tracts covered 300 varas of land. Pelham held a hearing on June 6, 1859 at which he took the oral testimony of two witnesses, who stated that the town was in existence when the United States took possession of the country and had a population of about 300 inhabitants. Based upon his investigation, Pelham recommended that the grant be confirmed to the original grantees and those claiming under or through them. As a result of Pelham’s favorable report, Congress confirmed the grant on June 21, 1860. The grant was surveyed in June, 1876 by Deputy Surveyors Sawyer & McBroom for 116,286.89 acres. A patent was issued on October 21, 1881.
Meanwhile, on November 29, 1879 Amado Chaves, for himself and the other heirs of Francisco and Jose Antonio García de Noriega, petitioned Surveyor General. Henry M. Atkinson for the recognition of a grant also known as the Canon de San Diego Grant, which was located entirely within the boundaries of the other grant. The claim was based upon a Spanish document showing that the two Garcías had appeared before Governor Fernando de la Concha requesting a grant covering the tract commonly known as the Canon de San Diego for agricultural and stock raising purposes. In response to their petition, Concha granted them the premises on January 27, 1788 and directed Armenta, as Alcalde of the Queres Nation, to place them in possession of the grant provided the concession did not prejudice the rights of the Jemez Indians or any third party residing in the vicinity. In obedience to Concha’s order, Armenta went to the grant on February 6, 1788, and finding no obstacle or reason why he should not proceed, he delivered royal possession of the grant to the two Garcías. He designated the following natural objects as its boundaries:
On the north, the waterfall; on the east, some high mesas; on the south, the junction of the rivers, the point of a red hill, and the lands of the Indians; and on the west, some high mesas.
The Garcías called Armenta’s attention to their prior grant when he placed the grantees of the 1799 grant in possession of their land. Armenta apparently recognized the validity of the prior concession and, in order to protect the rights of the Garcías, gave them a certificate in which he excepted the lands covered by the 1788 grant from the lands covered by the 1798 grant. This certificate also provided that the Garcías should enjoy the lands which they had theretofore cultivated. Chaves introduced this certificate together with a copy of an instrument from the Archives which showed that on December 1, 1808, Alcalde Ignacio Sanchez Vergara had advised. Governor Jose Manrique of a dispute which had arisen between Antonio García and the inhabitants of the Town of Canon de San Diego over the lands covered by the 1788 grant. In this instrument Sanchez stated:
I, deeming that the title claimed by Antonio García is founded in law, he having been the prior settler for the prior ten years with the condition that at the time they were given possession all the new settlers gave their consent, as said Garcías makes appear by a document which the Alcalde executed to the two brothers.…
In an unsigned order filed with Sanchez’s letter, Manrique held:
I will state to you that the subject does not require any decision of mine inasmuch as the grant of the Garcías makes their right clear, which grant being the older always has a preference. The last settlers cannot deny to the Garcías a better title.…
Atkinson in a report dated March 22, 1880, held that he evidence indicated that the grant was valid and, notwithstanding the fact that the lands already were patented, recommended the grant be confirmed by Congress. A preliminary survey of the 1798 grant was made by Deputy Surveyor Robert G. Marmon in May, 1880 for 9,752.51 acres.
Since Congress had not acted upon the claim, Chaves presented the grant to the Court of Private Land Claims on February 17, 1893. when the case came up for trial on August 2, 1893, the government asserted as a special defense against the recognition of the grant that since the Garcías had participated in the grant of 1798, and there was no reference to the 1788 grant in the title papers for the 1798 grant, the Garcías had abandoned their prior concession in favor of all the grantees of the larger and junior grant and thus, were estopped to assert their rights under the prior grant. It further alleged that whatever right the United States had in the land had been transferred to the heirs and legal representatives of the original grantees under the 1798 grant. The Court in its majority opinion rejected the grant on August 14, 1893 on the ground that the Garcías and those claiming under them were estopped, as a result of their joining in the petition seeking the grant of 1798, to assert a claim based on the 1788 grant. The majority opinion did not pass upon the effect of the prior disposition of the land by the United States. Justice William W. Murray and Wilbur E. Stone wrote a dissenting opinion in which they stated that the case raised two questions. First, did the grant of 1788 convey to the Garcías a complete and perfect grant? Second, was the grant forfeited and abandoned? Since there was no serious question over the validity of the grant at the time of its issuance, Murray and Stone turned their attention to the answering of the second question. They believed that the grant of 1798, insofar as it covered the lands embraced within the 1788 grant, was invalid since Chacon had no power, to grant occupied land.
Chaves appealed the decision to the United States Supreme Court which affirmed the majority opinion on November 15, 1897. In answer to the point raised by the dissenting opinion, the Supreme Court noted that there was evidence showing that prior to the issuance of the grant of 1798, the Garcías had occupied a tract in the Indian League. In 1798, Armena surveyed the Indian League and found that it contained a surplus of 2100 varas. All of this surplus was situated between the Indian lands and the junction of the two creeks. Since all of the allotments had been made along the San Diego Creek it would mean that the allotments of the grantees under the 1798 grant covering at least 3,400 varas would have had to have been made in the area covered by the 1788 grant. Therefore, all of the 1788 grant could not have been excluded from the 1798 grant as suggested by Armenta’s certificate for it would have been repugnant to the 1798 grant to deprive many of its grantees of the allotments which had just been made to them. On the other hand, the certificate would have real meaning if the grant of 1788 had been forfeited or abandoned and Armenta issued it to protect the Garcías’ equities in two 300 vara tracts located between the junction and the north boundary of the Pueblo league. Continuing, the court stated that it doubted that Armenta’s certificate had been executed in 1798, but believed that it had been made in 1808 in connection with the controversy between the Garcías and the other grantees. It also believed that the 1808 proceedings were:
… entirely ex parte and without the knowledge of the other settlers, and was in no respect a judicial action. The reply signified the individual opinion of the governor, not that the new settlers could he driven from their own holdings, but that they could not claim the land actually occupied by the Garcías.
One may wonder why the Supreme Court did not seize upon this opportunity to affirm the decision rejecting the claim, but upon the ground the Court of Private Land Claims, under Section 13(4) of the Act of March 3, 1891 had no authority to pass upon the validity of the grant since the land covered thereby previously had been acted upon and confirmed by Congress. The Supreme Court’s failure to pass upon this issue created a great deal of confusion which was not settled until 1899, when it announced its decision in the Town of Real de Dolores del Oro case, holding:
A claim for land within the limits of a grant which has been confirmed by Congress, and for which a patent has been issued to another party, is properly rejected by the Court of Private Land Claims.
 The Canon de San Diego Grant, No. 25 (Mss., Records of the S.G.N.M.).
 H. R. Exec. Doc. No. 14, 36th Cong., 1st Sess. 87‑89 (1860).
 Ibid., 90‑91.
 An Act to Confirm Certain Private Land Claims in the Territory of New Mexico, Chap. 167, 12 Stat. 71 (1860).
 The Canon de San Diego Grant, No. 25 (Mss. Records of the S.G.N.M.).
 The Canon de San Diego Grant, No. 122 (Mss., Records of the S.G.N.M.).
 Archive No. 379 (Mss., Records of the A.N.M.).
 Chaves v. United States, No. 100 (Mss., Records of the Ct. Pvt. L. Cl.).
 1 Journal 173 (Mss., Records of the C. Pvt. Cl.).
 Chaves v. United States, 168 U. S. 177 (1897).
 Court of Private Land Claims Act, Chap. 539, Sec. 13(4), 26 Stat. 854 (1891).
 Town of Real de Dolores del Oro v. United States, 175 U. S. 71 (1899).