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by J. J. Bowden
Carlos Santistevan, acting for himself and on behalf of five associates, appealed to Governor Manuel Armijo on December 31, 1845, soliciting a grant covering a tract of vacant agricultural land located at the place called Cebolla, which was situated between the Town of San Antonio del Rio Colorado and San Cristoval.
Santistevan stated that he and his associates were all poor and landless residents of the Town of Arroyo Hondo and needed the premises to support their families. He described the requested tract as being:
… very suitable for cultivation, irrigable from certain water, said to be from the Loma quite sufficient for its irrigation ....
On the same date, Armijo directed the Prefect of the Second District of Taos, Diego Lucero, to ascertain whether the tract was vacant, and if such were the case, to instruct the Alcalde of Taos to deliver legal possession thereof to the petitioners. In compliance with these instructions, Lucero, on January 3, 1846, ordered Alcalde Juan Lorenzo Martinez to carry out the governor’s instruction and, if satisfied that no injury would result therefrom, to allot the qrantees a sufficient amount of land for their cultivation. On March 20, 1846, Martinez, together with his attending witnesses and the petitioners, went to Cebolla. Upon finding the tract unoccupied and uncultivated, he performed the customary ceremonies necessary to place the petitioners in legal possession of the lands embraced within the following natural objects, which he designated as the boundaries of the grant: On the north, the boundaries of the San Antonio del Rio Colorado Grant; on the east, the mountain; on the south, the boundary of the San Cristobal Grant; and on the west, the edge of the bluffs bordering the Rio Grande.
The Act of Possession recited that the grant was subject to the conditions that the grantees fence the premises in order to prevent damage to their crops; however, they were not to enclose any watering places or obstruct the roads or pasturages. The grantees were also ordered to arm themselves for their protection. The Act of Possession concluded with the notation that individual allotments had not been made due to the inclement weather and very heavy brush. However, the grantees were authorized to partition the tract amongst themselves.1]
While there is no evidence that the grantees settled upon the grant prior to the acquisition of New Mexico by the United States, it appears that they had used the premises as a pasturage for their livestock. During the twenty-five year period following the issuance of the grant, the interests of the original grantees were sold and re‑sold many times. On January 24, 1872, John T. Graham acquired title to the entire grant from the assignees of the original grantees. He convoyed a half interest in the grant on the following day to William Blackmore for three thousand dollars. Sometime between January and March, 1872, Graham sold an undivided one fourth interest in the grant to Clarence P. Elder. Just eleven days later, Graham and Blackmore petitioned Surveyor General T. Rush Spencer seeking the confirmation of the grant.
With almost unprecedented dispatch, Spencer just two days later held a hearing on the claim. Three witnesses were questioned concerning the validity of the grant papers, each of whom testified that in his opinion the signatures of the granting officials were genuine. In a report dated March 23, 1872, Spencer found that while Armijo’s decree dated December 31, 1845, some somewhat vague, it nevertheless, was sufficient to constitute a valid grant; provided Armijo had the power to issue grants in 1845. On this question, he found that the Colonization Law of August 18, 1824, and Regulations of November 21, 1828,_edn4 authorized governors of the territories to make grants. Therefore, he held the grant to be valid and recommended its confirmation by Congress. A preliminary survey made by Deputy Surveyors Elkins & Marmon in November, 1877, showed that it contained 17,159.57 acres.6]
Once the claimants had secured the Surveyor General’s approval of the grant and it had been surveyed, they attempted to force a number of sheep operators, who previously had free use of the land to pay grazing fees. They also tried to prevent the unauthorized cutting of wood on the grant. These efforts prompted the trespassers to file protests with the Surveyor General charging that the grant was invalid, incomplete, and fraudulent. The result was a stalemate which lasted until after the creation of the Court of Private Land Claims in 1891. On February 18, 1893, Clarence P. Elder filed suit against the United States in the Court of Private Land Claims to secure the recognition of the grant. When the case came up for trial on August 28, 1896, the plaintiff offered the grant papers together with a great deal of documentary and oral evidence establishing a complete chain of title back to the original grantees. Elder also contended that the Elkins & Marmon Survey was erroneous and the grant covered a substantially larger tract of land. He asserted that the north boundary should be located about two miles further north of the line shown on the survey. This would place the line along the top of the bluffs just south of the Rio Colorado. He also contended that the south boundary should be located at the mouth of an old acequia, which the inhabitants of the Town of San Cristobal claimed as the north boundary of their grant. The government conceded that the grant papers were genuine but raised five special defenses. First, it argued that Armijo’s decree of December 31, 1845, was not a decree of grant but merely a request for additional information and authorization for the applicants to enter into possession pending his further action. Second, Armijo had no authority to make a grant of public land in 1845. Third, Elder was not entitled to prevail since no evidence of the grant could be found in the Archives of New Mexico. Fourth, since plaintiff had failed to present any evidence showing that the conditions mentioned in the grant papers had been fulfilled prior to the United States’ acquisition of New Mexico, the grant was incomplete and imperfect and, therefore, not entitled to confirmation. Finally, since the original grantees had sought only the agricultural lands, the grant, if confirmed, should be restricted to the irrigable lands situated within the river valley.
The court, on September 5, 1896, announced its decision holding the grant to be one entitled to confirmation but sustained the government’s contention concerning the extent of the grant. Justice William M. Murray wrote a dissenting opinion in which he stated that the government’s position concerning the invalidity of the grant was sound. While the area which had been confirmed by this decree was relatively small, the adverse decision on the first four defenses raised by the government was important since they affected a number of other grants which were then pending in the Court of Private Land Claims. Therefore, the government appealed the decision to the United States Supreme Court.
In answer to the questions raised by the government in the appeal, the Supreme Court stated that while the Governor of New Mexico undoubtedly possessed the power to make a grant of public land in 1845, such power was derived solely from the Colonization Law of 1824 and the Regulations of 1828. The Regulations of 1828 established the procedure to be followed in issuing grants under the Colonization Law of 1824, in the Territory of New Mexico. In brief, the Regulations of 1828 required (1) the applicant for a grant to present a petition to the Governor setting forth a number of facts pertaining to himself and the requested lands, (2) the governor to investigate the merits of the application and, depending upon the conditions, to either issue a grant in strict conformity with the provisions of the Colonization Law of 1824 or reject the application, (3) the approval of (a) the Territorial Deputation if made to the head of a family or an individual, or (b) the Supreme Government if made to an empresario, and (4) after a grant had been definitely made and approved, the granting official was to give the grantee a testimonio to serve as his title and make a corresponding entry in a book intended for that purpose. Following a careful examination of Armijo’s decree of December 31, 1845, the Supreme Court held that the decree was merely an order by Armijo directing the prefect to gather the preliminary facts necessary to justify a grant but was manifestly not an actual grant of title. While the Court conceded that the grant papers clearly reflected that the prefect and alcalde had intended to grant something, either a fee or merely a right of possession, it was clear that neither of those officials had authority to make a valid grant of public lands. Even if it were presumed that the prefect and alcalde were acting on behalf of the governor, his failure to subsequently ratify their acts rendered the proceedings a nullity. Continuing, the Court pointed out that a grant could not be created by the mere conferring of judicial possession since the authority to give possession was necessarily derived from and must conform to a precedent grant. In an effort to rationalize the proceedings, the Court stated:
When it is borne in mind that the application of Santistevan purports to have been made at a time when hostilities were impending between Mexico and the United States and the territory of New Mexico was undoubtedly in a disturbed condition, its citizens in all probability preoccupied with preparation for an impending clash of arms, the inference from the documents we have been considering is not unwarranted that but a mere temporary possession or license was intended by the Prefect and Justice of the Peace to he conferred upon the applicants. Such an hypothesis would account for the long delay following the direction of the Prefect to the Justice of the Peace, bearing date January 3, 1846, and the delivery of possession the 20th of March following.
The Court also noted that since the plaintiffs’ muniment of title had come from private custody and no evidence of the grant was to he found in the Archives, it would appear that the claim was not a grant made in strict conformity with the provisions of the Regulations of 1828. In conclusion, the Court stated:
It may be added that the record fails to satisfactorily establish any occupancy or cultivation prior to the conquest, and but trifling cultivation thereafter, and the latter by a portion only of the alleged grantees ... As a consequence of the foregoing reasons, it results that the claim should have been rejected by the Court of Private Land Claims, and that because it erroneously confirmed the alleged grant, the decree made below should be reversed, and the cause remanded with instructions to reject the claim and dismiss the petition. And it is so ordered.
In response to this mandate, the Court of Private Land Claims on May 5, 1900, set aside its former decision, rejected the claim and dismissed the plaintiff’s petition.
The Supreme Court’s decision must have come as a bitter disappointment to the claimants, who for more than a quarter century had believed their claim to be beyond reproach.
 H. R. Exec. Doc. No, 296, 42d Cong., 2d Sess,, 6‑7 (1872).
2] Ibid., 1‑3.
 Reynolds, Spanish and Mexican Land Laws 121 (1895).
 Ibid., 141.
 The Cebolla Grant, No. 61 (Mss., Records of the S.G.N.M.).
 Brayer, William Blackmore The Spanish‑Mexican Land Grants of New Mexico and Colorado 332 (1949).
 Elder v. United States, No, 100 (Mss., Records of the Ct. Pvt. L. Cl.).
 3 Journal 173‑175 (Mss., Records of the Ct. Pvt. L. Cl.).
 Reynolds, Spanish and Mexican Land Laws 121 (1895).
 4 Journal 160 (Mss., Records of the Ct. Pvt. L. CL).