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Domingo Fernandez Grant

by J. J. Bowden

Domingo Fernandez, a resident of Santa Fe and descendant of the conquerors and pacifiers of New Mexico, petitioned Governor Facundo Melgares on April 26, 1822 for a grant covering the lands formerly occupied by the inhabitants of the Pueblo of San Cristobal.[1] He called the governor’s attention to the fact that the pueblo had been abandoned for more than a century and it was then in a ruined and dilapidated condition. He stated that the walls of the church were almost razed to the ground. He deplored seeing that sacred edifice suffering under the disgrace of being used “as a habitat for livestock and lodging for brutes.” It appeared to him that “Divine omnipotence each day had endeavored to make it known that it was sustaining the foundations of that holy place.” Therefore, he promised that should the requested grant be made to him and all others who would join him in the project, he and his associates would commence the restoration of the church to the extent which their limited means would permit. He described the requested tract as being bounded:

On the north, by the descent of the Pueblito; on the east, by the point where the canon in the direction of Vaca Spring commences to disappear; on the south, the ascent called Los Comanches; and on the west, the Puertesito, which marks the boundary of Galisteo.

Fernandez stated that he hoped that the inhabitants of Galisteo would not object to the grant and promised to let them continue gathering wood from and watering their animals upon the grant. He even agreed to furnish them with horses during time of war. In connection with the disposition of water, which was scarce in that area, Fernandez requested that he be given full water rights in order to encourage the development of agriculture and thus strengthen the Christian zeal of the inhabitants of the new settlement which he would establish in rebuilding the sacred temple. He also asked that the area surrounding the grant be set aside for their exclusive use as a commons. Melgares referred the petition to the Ayuntamiento of Santa Fe on the following day and requested it to report upon the amount of water available, the amount of land which could be cultivated with such water and the number of persons who would be willing to join with the applicant in settling the grant. After appointing several committees and conducting a thorough investigation of the matter, the Ayuntamiento found that there were thirteen persons who were willing to join Fernandez and that there was sufficient tillable land at San Cristobal for their support; the twelve springs in the area would not provide enough water to sustain the proposed community, unless “aided by God, our father, with water from heaven to fill their tanks”. Notwithstanding this water problem, the Ayuntamiento, on February 14, 1824, issued a decree recommending the issuance of the grant to Fernandez “on condition that the water and pastures shall be in common”. However, this decree was never returned to the governor for his further action. Although Fernandez repeatedly asked that the decree be forwarded, he was continually “put off” by the members of the Ayuntamiento on the pretext that they were looking for it.

In an effort to bring the matter to a head, Fernandez, for himself and thirty other citizens who were then willing to accompany him in the formation of a new colony on June 25, 1827, filed a petition before the Provincial Deputation of New Mexico asking that prompt action be taken upon his request for a grant covering the lands at San Cristobal. Two days later, the matter was referred to the Ayuntamiento of Santa Fe for a report. On July 26, 1827, the Ayuntamiento answered, stating that in view of its past proceedings on this petition, it “sees no inconvenience in granting he aforesaid land on condition that the water and pastures shall be common As a result of this favorable report, the Provincial Deputation, on August 8, 1827, also recommended that the grant be made. Based upon these favorable proceedings, Governor Manuel Armijo, on the following day, issued a decree granting the solicited lands to the petitioners in consideration of:

. . . .what they offer, which is that no other use will be made of the land but for cultivation, on condition that if, at any time, they make any other use of it, it shall be considered as abandoned, and the grantees without any right to its possession, and that they have the same right with the rest of the public to pasture their animals in the vicinity thereof.

In conclusion, Armijo ordered the proceedings be sent to the Alcalde of Santa Fe, Jose Maria Martinez, “for his information and for the proper purposes.” In compliance with Armijo’s granting decree, Martinez, his attending witnesses, and the thirty‑one colonists proceeded to the grant on August 21, 1827, to perform the solemn ritual in connection with the formal delivery of possession of the grant. Upon arriving at San Cristobal, the grant was first surveyed, and the following natural objects were designated as its boundaries:

On the north, by the summit of the creston; on the east, by the Ojo de Baca; on the south, by the Bajada de las Commanchos; and on the west, a point opposite the middle creston.

Following the completion of the survey, Martinez delivered possession of all the land within the boundaries of the grant to the grantees. Next, he allotted all of the agricultural lands between the “mesita de las Lagunitas and Ojo de Baca under the boundaries of this grant” to Fernandez. The remaining agricultural lands on the plain and in the Canon de la Cueva were divided into one hundred vara tracts and distributed to the twenty‑four other colonists, each of whom agreed to erect a house and assist in work on the church, ditches and tanks.

On September 2, 1829, Fernandez appeared before Gov­ernor Jose Antonio Chaves, complaining that Alcalde Francisco Trujillo had ordered the other settlers to assist him in cleaning out the springs, constructing water ponds, and otherwise improving the grant, but on the appointed day none of them appeared. Therefore, he requested the governor to order the other grantees to promptly fulfill their obligations under penalty of the forfeiture of their rights. Chaves was very sympathetic and on the same day issued a decree instructing the Alcalde of Santa Fe to notify the other grantees that unless they promptly proceeded to cultivate the lands which had been allotted to them, they would be “excluded from the list, and industrious individuals will be substituted in their place …”[2] Fernandez conveyed all his right, title and interest in the grant to Ethan J. Eaton and Alexander W. Reynolds for $500 on January 20, 1851, Eaton subsequently acquired Reynolds’ interest.[3]

Eaton petitioned Surveyor General William Pelham, on October 11, 1855, stating that all of the original grantees except Fernandez had forfeited their rights under the grant by failing to comply with its conditions and requesting its confirmation to him as assignee of Fernandez. Pelham called a hearing on the claim on August 10, 1857, at which time he took the testimony of Jose Marie Martinez and Francisco Baca, who stated that the signatures of the officials on the grant papers were genuine. As a result of his investigation, Pelham issued a decision on September 18, 1857, in which he found the grant to be good and valid and recommended its confirmation “to E. W, Eaton, as the assignee and legal representative of Domingo Fernandez, and to the remaining grantees who had not forfeited the right to the land by a noncompliance with the conditions of the grant …” [4]

Congress, however, took no action upon the recommendation until the Act of June 21, 1860, [5]when it was enacted “That the private land claims in the Territory of New Mexico as recommended for confirmation by the Surveyor General of the Territory … and the claim of E. W, Eaton … be and the same are hereby confirmed.”

In order to locate and delineate the boundaries of the grant, a contract to survey the grant was awarded to Deputy Surveyors Pelham & Clements. Their survey which was made in November, 1860, showed the grant to be in the shape of an inverted triangle and containing 27,854,06 acres, Eaton promptly protested the approval of the survey and pointed out that the field notes in the Act of Possession described a rectangular tract of land. His protest led Commissioner of the General Land Office, Willis Drummond, to investigate the question as to just what had been confirmed by the Act of June 21, 1860. In a decision dated November 11, 1873, Drummond held that the record clearly showed that Fernandez had been allotted only the lands lying between “the mesita of the Lagunitas upwards as far as the spring of the Vaca under the boundaries of the grant”. He noted that while it was true that Fernandez had informed the governor that his co‑grantees had not complied with the conditions of the grant and the Alcalde was directed to take action against the co-grantees, the record did not show that they had forfeited their interests. However, even if their title had been forfeited, it would not necessarily follow that Fernandez would have gained any additional land. In his complaint, Fernandez merely asked that the delinquent grantees be either compelled to perform their duties or resign their rights. The Alcalde was instructed to notify the co‑owners that if “they would not cultivate the land, they would be substituted with other industrious individuals. Therefore, he was of the opinion that the Act had confirmed only the “just claim which Eaton can now have as his assignee”. Eaton appealed this decision to the Secretary of Interior, C. Delano, who held:

The language of this award by the Surveyor General is ambiguous. It confirms the grant to E. W, Eaton, as the assignee and legal representative of Fernandez and to the remaining original grantees who had not forfeited their rights … I am of the opinion that the confirmation extends to any of the original grantees who have not forfeited their rights to the grant. It does not appear that any such grantees are claiming any portion of the original grant, nor is there satisfactory evidence as to whether they have, or have not, forfeited their rights. I am not disposed, however, to so construe the act of confirmation as to give to Eaton the entire grant or any portion of it, unless he shows himself entitled to it by an assignment.

Since the Pelham & Clements survey was obviously erroneous, Surveyor General Henry M, Atkinson awarded a new contract to Deputy Surveyor John Shaw in 1879, for the resurvey of the grant. In connection with this survey, additional testimony was taken in connection with the location of the natural objects as mentioned in the Act of Possession. One of the several witnesses examined was Ramon Serna y Ribera, one of the grantees who testified that when the Alcalde notified the twenty‑five co‑grantees that they would forfeit their rights unless they performed the conditions of the grant, they moved to the grant, cultivated their lands, cleaned the springs and performed all of the other conditions necessary to perfect their titles. Continuing he stated that most, if not all of such co‑grantees continued to live on the grant until the Indians drove them from the land in 1841. He was also careful to point out that under Mexican law, land once granted could be forfeited only by a proceeding known as denouncement and that no such proceeding had been instituted against any of the co‑grantees. As a result of this examination, Shaw’s survey covered a rectangular tract of land containing 81,032.67 acres of land.

The inhabitants of Galisteo, in turn, protested the approval of this survey on the ground that the Pelham & Clements survey correctly located the west line of the grant. In a lengthy opinion dated July 14, 1879, Commissioner of the General Land Office, James Williamson, held:

The confirmation was of the grant as a whole, but operative to Eaton only as the assignee and legal representative of Domingo Fernandez and to the remaining original grantees who had not forfeited their rights to the land by a non‑compliance with the conditions of the grant, and it only remains for this office to see that the boundaries of the lands confirmed are correctly located and designated and to issue a patent in conformity with the Act of Confirmation, leaving it to the interested parties to identify and adjust their respective claims within the grant by mutual agreement and by partition or other appropriate proceedings in the proper judicial tribunals.…

In connection with the Shaw Survey, he found it to be substantially correct and dismissed the protest by the inhabitants of Galisteo, since they had failed to show that they had any title or interest in the lands affected by the survey. The grant was patented on December 8, 1880 for 81,032.67 acres contained in the Shaw Survey.[6]

[1] Prior to 1680, the Pueblo of San Cristobal was the principal pueblo of the Tano Indians. It was located between Galisteo and Pecos pueblos. Its inhabitants moved to the Santa Cruz valley after the Pueblo Revolt. Following the reconquest, they were moved several times by Governor Diego de Vargas. During the Revolt of 1696, they moved to Arizona and settled among the Hopi Indians, 2 Hodge, Handbook of American Indians North of Mexico 428 (1960). A Spanish document dated September 25, 1689 and purporting to be a grant of four square leagues of land by Governor Jerona Petriz de Cruzate to the Pueblo of San Cristobal was filed in the Surveyor General’s office. Since the pueblo was not in existence at the time the United States acquired New Mexico, no action was taken on this claim. The document was later proved to be spurious. The Pueblo of San Cristobal Grant, No. U (Mss., Records of the S.G.N.M.).

[2] Archive 282 (Mss., Records of the A.N.M.).

[3] H. R. Report 457, 35th Cong., 1st Sess. 314‑318, (1858)

[4] The Ethan N. Eaton Grant, No, 19 (Mss, Records of the S.G.N.M.).           

[5] An Act to confirm Certain Private Land Claims in the Territory of New Mexico, Chap 167, Sec 1, 12 Stat 71 (1860).

[6] The Ethan N. Eaton Grant 19 (Mss, Records of the S.G.N.M.).