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Canon del Agua Grant

by J. J. Bowden

Jose Serafin Ramirez y Casanove, the first auditing officer of the departmental treasury, acting treasurer of New Mexico, and a lieutenant in the auxiliary cavalry, petitioned Governor Mariano Martinez on February 12, 1844, for a grant covering a tract of vacant land known as the Cañon del Agua. The petition described the tract as being located about a league from the Real de San Francisco and near the Tuerto Placer Mine. He designated the following natural objects as the boundaries of the solicited tract:

On the north, the road leading from the placer mine to Palo Amarilla; on the east, the spring of the Cañon del Agua; on the south, the San Pedro Grant; and on the west, the summit of the mountain in which his mine was located.

Ramirez stated that he had no land upon which to support his family and was requesting the grant not only under the Colonization Laws of January 4, 1813, and August 18, 1824, but as a donation or reward for his long and faithful military and civil services to the crown. He also requested the confirmation of his title to the mine which he had inherited from his grandfather, Francisco Dias de Moradillos under the Mining Ordinance of 1783. The petition closed with a prayer that he be granted:

… possession of the mine to work it, and the land which it embraces, which is about one league, for cultivation and pasturing my animals, and for grinding ore and smelting metal.

Martinez was somewhat concerned over the propriety of making a grant to a government employee. Therefore, he referred the question to the Treasury Department for an opinion. Ambrosio Armijo answered the inquiry stating that an employee was, under the colonization laws, more entitled to a grant than an ordinary citizen. Upon receipt of this favorable report, Martinez referred the matter to the Departmental Assembly for its further action. The Assembly, upon investigating the matter, found that in 1776, Jose Casildo Lopez de Viera, had registered and worked the mine as agent for Francisco Dias de Moradillos. Therefore, it held that the petitioner and other heirs of Moradillos had a right to the mine and recommended the issuance of the grant. In response to the Assembly’s decision, Martinez, on February 13, 1844, granted the requested land to Ramirez and revalidated his title to the mine. Juridical possession of the grant was given to him two days later by the Alcalde of Santa Fe, Santiago Flores. Flores fixed the boundaries of the grant as follows:

On the north, the road of the Palo Amarillo; on the east, the spring of the Cañon del Agua; on the south, the boundary of the rancho de San Pedro; and on the west, the highest summit of the little mountain of El Tuerto, joining the foundary of the mine known as inherited property.[1]

Ramirez presented his claim to the premises to Surveyor General William Pelham for investigation and confirmation on December 20, 1859. The testimonio of the grant was filed as evidence of his title. Pelham held a brief hearing on the claim on January 10, 1860, at which time two witnesses were examined by Pelham. These witnesses both testified that they were personally acquainted with Governor Martinez and Alcalde Flores, that they held such positions in 1844, and that the signatures on the testimonio were genuine. As a result of his investigation, Pelham on January 20, 1860, held that he had no authority to adjudicate the claim to the mine, and therefore, took no action on that portion of the claim. However, he found Ramirez’s claim to the land granted to him in 1844, to be good and valid and recommended its confirmation by Congress.[2] By an Act dated June 12, 1866, Congress confirmed the grant.[3] Notwithstanding all the pressure which was then being exerted upon Congress to settle the land grant problems of New Mexico, this Act pertained solely to the Cañon del Agua Grant. The grant was surveyed as containing 3,501.21 acres and being a roughly triangular shaped tract by Deputy Surveyor W. W. Griffin on August 9, 1866. The grant was patented on July 1, 1875, based on Griffin’s survey.[4]

The United States filed suit in the First Judicial District Court of the Territory of New Mexico to set aside and vacate this patent on the ground that it had been secured by fraud. The government in its complaint contended that Surveyor General John A. Clark, Chief Clerk David J. Miller, Surveyor W. W. Griffin, Jose Serafin Ramirez, and Cooley, Kitchens & Company had conspired to defraud the United States of the lands lying within the Griffin Survey. Continuing, the complaint alleged that the conspirators had agreed among themselves to fraudulently locate the boundaries of the Cañon del Agua Grant at a place other than those called for in the testimonio, and to thereby unlawfully acquire title to such property. And, as a result of such false representations and fraudulent misrepresentations, the Commissioner of the General Land Office had been induced to approve the Griffin Survey and issue a patent to the land in question.

It appears that sometime prior to October 20, 1865, Cooley, Kitchen & Company became interested in the copper deposits which were located near Real de San Francisco, and especially an old abandoned mine known as the Big Copper Mine which Ramirez claimed was the mine which his grandfather had discovered in 1776. The Big Copper mine was located on the southwest slope of a mountain located several miles east of the Cañon del Agua Spring. Therefore, Cooley, Kitchens & Company concluded that the calls in the testimonio of the Cañon del Agua Grant, through error and mistake had been reversed, and that this mountain was actually the Little Tuerto Mountain. On October 20, 1865, Ramirez gave the Mining Company of the Placer de San Francisco, which had been organized by the Cooley, Kitchens & Company to operate the premises, an option to purchase the grant on or before May 1, 1866, for the sum of $40,000.

Naturally, the owners of the Mining Company of the Placer of San Francisco were anxious to receive some indication that the government would accept their theory that the calls had been erroneously reversed in the testimonio prior to the exercise of their option and the payment of the consideration to Ramirez. This was especially true since there was a question as to whether the mine was the old Ramirez mine or a mine which had beer registered in 1846, by Antonio Aguilar and Mariano Barela and later known as the Nuestra Senora de los Dolores Mine. If the mine was actually the Nuestra Senora de los Dolores Mine, then it would be difficult to justify the reversal of the grant’s calls, and unless the calls were reversed, the grant would not cover the valuable copper deposits and was of relatively little value to the owners of the mining company.

On March 7, 1866, the time for exercising the option was extended to June 1, 1866. Eight days later, Clark, who was then on leave of absence in Washington, D.C., wrote a “personal letter” in which he directed Miller to go out to the grant and gather evidence respecting the location of its landmarks. The government argues that the true purpose of this trip was to definitely ascertain whether or not east and west boundaries of the grant could be reversed and thereby invert its location.

In response to this communication, Miller, Griffin, and a number of representatives of the mining company went to the Real de San Francisco and took a number of ex parte affidavits which tended to sustain the mining company’s theory. The last paragraph of Miller’s report to Clark dated May 10, 1866, concerning the results of this trip is truly illuminating. He states:

As there is no fund out of which to defray my expenses in making the examination, and collecting the evidence here reported, and as, in view of a probable early survey of the land in question, it was important to the parties interested that the boundaries should be clearly identified, so as to enable the Surveyor General to act understandingly in giving instructions to his deputy for the survey, they furnished Mr. Griffin and myself transportation both ways and bore our necessary expenses while on the trip, and paid the witnesses for their attendance.[5]

As a result of this productive trip, the option was exercised and Ramirez conveyed the grant to the mining company on May 19, 1866. The deed described the grant as covering a tract bounded:

On the north and northwest, by the road commencing at the Placer of San Francisco, and leading to the Palo Amarillo; on the east by the summit of the Tuerto Mountain; on the south, by the spring of the Canon del Agua; and on the west, by the Palo Amarillo.

What a transformation had been brought about as a result of Miller’s extra official expedition! Twenty-three days later Congress confirmed the grant.

The expedition had shown that in order to reverse the east and west calls every call in the original description would have to be changed. Instead of being a rectangular tract lying between the Palo Amarillo Road and the San Pedro Grant and situated about a league from the Real de San Francisco, the grant would have to assume a diamond shape with the natural objects forming its points instead of designing its sides. This also forced the grant to overlap and conflict with the San Pedro and Ortiz Mine Grants and intrude into the heart of the Real de San Francisco.

Since the mine owners had acquired the San Pedro Grant from Ramirez, it was decided to survey the grant roughly in a triangular shape in order to avoid any conflict with the San Pedro Grant. Thus, approximately the western fourth of the grant was eliminated and it was not necessary to call attention to the fact that the Palo Amarillo was located well within the San Pedro Grant. The mine owners also eliminated any opposition from the owners of the Ortiz Mine Grant by purchasing the area in conflict from them. However, at that time, they were unaware of Mariano S. Otero’s claim to the Nuestra Senora de los Dolores Mine Grant and the trouble this outstanding claim would eventually cause.

Following Clark’s return to Santa Fe, he directed Griffin to survey the grant in accordance with certain special instructions which guaranteed that the survey would conform with the scheme. Griffin promptly performed his role in the conspiracy. Clark approved the survey on October 16, 1866, and forwarded it to the Commissioner of the General Land Office for final approval and patenting. However, Commissioner S. S. Burdett noted the radical variation and returned the survey for further investigation. In his transmittal letter dated September 23, 1874, addressed to the then Surveyor General, James K. Proudfit, he stated that the evidence in his office indicated that the survey in no way conformed with the boundaries called for in the original title papers and therefore, he “deemed it advisable” to take no further action upon the survey:

… until the parties in interest shall have had an opportunity to show by testimony the exact location of said boundaries, and such other facts relative to the extent of the place known as “Cañon del Agua” as will enable this office either to approve the survey of that rancho as now made, or to locate it in such a manner to do justice to the claimants and the United States.[6]

Burdett’s letter contemplated the giving of adequate notice and the holding of a public hearing in order to determine the true location of the grant’s boundaries. However, instead of holding a public hearing, Proudfit mentioned the matter to the claimants’ agent and he furnished Proudfit with a number of witnesses who gave testimony tending to sustain the survey. This new evidence was then foisted upon the Commissioner, who reluctantly approved the survey on March 25, 1875. Less than four months later, the grant was patented based upon the Griffin Survey.

While the suit was brought in the name of the United States, Otero, as the owner of the Nuestra Senora do los Dolores Mine Grant, was the moving party. Otero hired special counsel and bore the entire cost of preparing and prosecuting the case against the San Pedro and Canon del Agua Company, which had acquired the interests of the Mining Company of Placer de San Francisco on January 28, 1880.

The plaintiff presented a great deal of oral evidence tending to show that the Little Tuerto Mountain was actually located west of the Cañon del Agua Spring and southwest of Real de San Francisco, that the Big Copper mine was the Nuestra Senora de los Dolores Mine and not the old Ramirez Mine, and that the road to Palo Amarillo ran almost due west after it left Real de San Francisco. They contended that a preponderance of the evidence indicated that the patent to the Cañon del Agua Grant had been acquired through fraud and mistake and should he set aside. In the alternative, they pointed out that even if the grant had covered the lands embraced within the Griffin Survey, the grant had been made under the Mexican Colonization Laws, and, therefore, could not include any mineral rights, for mineral rights could only be granted under the Mining Ordinance of 1783. They argued that since Ramirez’s petition for the confirmation of this grant did not request the recognition of his claim to the mineral rights under the premises, the Act of June 21, 1866, could not be construed as relinquishing them. They also contended that it followed that if the minerals had not been relinquished in Congress, the patent would not convey them, notwithstanding its failure to expressly reserve them.

The District Court in its decree dated February 16, 1885, resolved all issues in favor of the defendant. From such decree, an appeal was taken to the Supreme Court of New Mexico, which on January 28, 1888; reversed the decision of the lower court and entered a decree in favor of the government, setting aside the approval of the Griffin Survey and annulling the patent. The Supreme Court’s decision is the longest and most exhaustive opinion written in any case during New Mexico’s territorial days. The majority opinion which was written by Chief Justice Elisha Long, covers one hundred sixty-three pages in the New Mexico Reports.[7]  The defendants in turn appealed that decision to the United States Supreme Court. The United States Supreme Court on November 14, 1892, announced its decision affirming the decision of the Supreme Court of New Mexico verdict set the patent aside and, thus, leaving “the defendants whatever rights may exist under the original confirmation.”[8]

As a result of the United States Supreme Court’s opinion the grant was resurveyed by Deputy Surveyor George H. Pradt in strict conformity with the description contained in the testimonio His survey showed that the grant contained 341.04 acres. A new patent for that amount of land was issued on October 15, 1896.

Since Otero’s claim to the Nuestra Senora de los Dolores Mine Grant had been rejected by the Court of Private Land Claims, the lands within the Griffin Survey were restored to the public domain and were subsequently appropriated under the public land laws. Miguel Antonio Otero, who had acquired an interest in the grant following his brother’s death, gives the following brief sketch of the subsequent history of the tract in his autobiography:

“R. W. Webb and most of my attorneys and associates of Golden, New Mexico, gave me the double-cross, for when I succeeded in having the ground thrown open, they re located all the surrounding country and left me out entirely. They sold their interests back to the company for large sums of money and I never received a dollar from any of them. After I became governor of the territory of New Mexico, I settled with the company through Mr. James T. McLaughlin for $5,000, most of this going to M. S. Otero and other heirs, while I received less than $1,500 as against my actual expenditures of more than $20,000. There is one thing certain and sure in this connection: I am still alive, while so far as I know, all others associated with me in the Nuestra Senora de los Dolores mining suit are now traveling that inevitable route which issued no return tickets.”[9]

[1] H.R. Exec. Doc. No. 28, 36th Cong. 2d Sess., 31 34 (1861).
[2] Ibid., 35 37. In this connection, it should he noted that after the passage of the Mining Ordinance of 1783, the governor had no authority to grant mineral rights in New Mexico. Castillero v. United States, 2 Black (67 U.S.) 17 (1862).
[3] An Act to confirm the title of Jose Serafin Ramirez to certain lands in New Mexico, Chap. 118, 14 Stat. 588 (1866).
[4] The Cañon del Agua Grant No. 40 (Mss., Records of the S.G.N.M.).
[5] lbid.

[6] Ibid.
[7] United States v San Pedro & Cañon del Agua Company, 4 N.M. (Gil.) 405; 17P 337 (1888).
[8] San Pedro & Cañon del Agua Company v. United States, 146 U.S. 120 (1892).
[9] Otero, My Life on the Frontier, 96 (1939).