by J. J. Bowden
Juan de Dios Pena and six other residents of Santa Fe petitioned Governor Jose Antonio Chaves on April 14, 1830, asking for a grant covering the tract of vacant agricultural land known as the Gotera. They described the requested tract as containing approximately 2,000 varas of land and being situated below the place called Maragua. They also requested permission to appropriate all of the water located on the tract for the irrigation of their fields. Chaves apparently referred the matter to the Territorial Deputation for its consent and it, in turn, passed the petition to the Ayuntamiento of Santa Fe on May 1, 1830, for a report. On May 12, 1830, the Ayuntamiento appointed a special commission consisting of two of its aldermen and the local alcalde to make the requested invested investigation. Alcalde Domingo Fernandez advised the Ayuntamiento on May 17, 1830, that the two aldermen had failed to meet with him in order to make the investigation and, therefore, he made it by himself. He advised the Ayuntamiento that while the tract was vacant, numerous previous petitions for the tract had been rejected because it was used as a watering place for the presidial mounts. However, the Territorial Deputations attention was also called to the fact that the land was well watered, exceedingly fertile, and very suited for cultivation. Therefore, since the promotion of the agricultural industry was so highly recommended by law and the greatness and wealth of New Mexico were so dependant upon its success, he felt compelled to recommend the issuance of the grant to the petitioners. The report pointed out that other lands could be found for the pasturage of the Government’s stock and if the Territorial Deputation continued to neglect the development of agriculture, Santa Fe would never acquire sufficient supplies and would continue to be exposed to the indigence, misery and wants which were then so prevalent. In conclusion, he recommended that the grant cover an area of 2,500 varas and be measured from the lower boundary of the Maragua. Since the grantees undoubtedly would have some livestock, it also recommended:
… that the boundary should run from east to west to where the thousand varas reach, and from north to south and from hill to hill…[1]
Fernandez’s report was transmitted on the same day to the governor who in turn apparently transmitted it to the Territorial Deputation. On the following day, the Territorial Deputation considered the report and in response to the recommendations therein contained, granted the petitioners’ prayer and directed Fernandez to place the grantees in possession of the land. By virtue of this decree, Fernandez, on May 22, 1830, went to the grant with his attending witnesses and delivered possession of the following described individual tracts to the following persons:
(1) Juan de Dios Pena ‑ five hundred varas bounded on the north by two large stone mounds at the foot of the hill; on the east by the crest and outlet of the glen, on the south by a crest of rocks; and on the west, by the head of the Canada de la Baca.
(2) Ygnacio Ortiz ‑ five hundred varas bounded on the north by the Cave; on the east by the lands of Pena; on the south by a small round hill in the Canada de la Baca; and on the west, by the lands of Quintana.
(3) Teodosia Quintana ‑ five hundred varas bounded on the north by a little red hillock which forms a little stall; on the east by the lands of Ygnacio Ortiz; on the south by a holy cross on the hill; and on the west by the lands of Jesus Maria Pena.
(4) Jesus Maria Pena ‑ five hundred varas bounded on the north by a red crest with several little caves; on the east by the lands of Quintana; on the south by a bald hill and on a mound of stone; and on the west by the lands of Jesus Maria Alarid.
(5) Jesus Maria Alarid ‑ five hundred varas bounded on the north by the crest that divides the Arch on the upper part; on the east by the lands of Jesus Maria Pena; on the south by the points of the hill of the Canada Colorado; and on the west by the lands of Ramon Brito.
(6) Ramon Brito one hundred varas bounded on the north by the Arch; on the east by the lands of Jesus Maria Alarid; on the south by the hills; and on the west by the lands of Juan Lovato,
(7) Juan Lovato ‑ one hundred varas, bounded on the north by the Arch; on the east by the lands of Ramon Brito; on the south by the hills; and on the west by the public lands.[2]
The grantees promptly fenced their individual tracts, built their homes thereon, and commenced cultivating the land. They also constructed an acequia for their common benefit. They continually occupied and used the land for three or four years but were finally forced to move off the grant as a result of the hostility of the Indians. However, they pastured their livestock on the grant whenever conditions would permit.[3] The heirs and legal representatives of the seven grantees petitioned Surveyor General T. Rush Spencer on March 23, 1871, seeking the confirmation of their title to the grant which they alleged contained 490 acres. Their petition described the grant as being bounded and described as follows:
On the north by two large stone mounds at the foot of the hill, the cave, a red crest, the Canada Colorado and the arch; on the eat by the Creston de Maragua; on the south by a crest of stone, a small round hill in the Canada de la Baca, and a mound of stone; and on the west by public lands.
In support of their claim, the claimants filed the testimonio of the grant which was complete except that the last portion of the Act of Possession was missing. They also called attention to the fact that the journals of the Territorial Deputation, which were on file in the Archives, corroborated and established that the grant actually had been made.
On August 16, 1871, the New Mexico Mining Company, as owner of the Ortiz Mine Grant, protested the confirmation of the grant on the ground that it conflicted with their property. It was given until November 25, 1871, to show the invalidity of the Gotero Grant. However, it failed to present any evidence in support of its protest. Therefore, Spencer proceeded with his investigation of the claim without regard to the protest. By decision dated November 25, 1871, he found the grant papers to be genuine and held that the incompleteness of the Act of Possession presented no obstacle to the confirmation of the grant since it had been adequately proven that possession of the premises had been delivered to the grantees. Therefore, he recommended that it be confirmed to the original grantees and their legal representatives.[4]
A preliminary survey of the grant was made by Deputy Surveyors Griffin & McMullin in November, 1877, for 2,571 acres. Their survey located the grant almost wholly within Township 13 and 14 north and range 8 east, N.M.P.M. and showed it as being situated almost entirely within the exterior boundaries of the Ortiz Mine Grant, which had been patented on May 20, 1876. Nasario Gonzales, who in the meantime had acquired an interest in the grant by purchase, filed a protest against the approval of this survey on the ground that Griffin & McMullin had located the northern boundary of the grant too far south. Atkinson upon investigating the matter, concurred and, by decision dated January 13, 1879, rejected the survey and ordered a new one. Deputy Surveyor John Shaw resurveyed the grant in May, 1879. His survey located it in Townships 13 and 14 North, Range 9 East, N.M.P.M. or east of the previous survey but showed the grant as containing only 471.49 acres Shaw’s survey was based on the premises that the crest mentioned in the grant papers as forming the east boundary should have been the Creston of Maragua instead of the Creston of Gotera. Gonzales protested the approval of the Shaw Survey and presented a number of affidavits which tended to show that the survey covered lands other than those described in the grant. As a result of his investigation of the protest, Atkinson ordered a third survey of the grant. This survey was made by Deputy Surveyor William M. Sanders in June, 1882, for 1,833.94 acres. The Sanders survey located the grant in Townships 13 and 14 North, Range 8 East, N.M.P.M. The Sanders survey located the east boundary of the grant a little west of the Griffin & McMullin Survey and about 5 miles west of the Shaw Survey. The survey was later amended by locating the southern boundary farther north. As amended, the Sanders Survey contained 785.5 acres most of which conflicted with the Ortiz Mine Grant. Gonzales also protested this survey and based on additional testimony Atkinson, on July 2, 1884, rejected the Sanders Survey and ordered a fourth survey in which he directed the Deputy Surveyor Warner Laderen to resurvey the grant with its eastern boundary located as a common line with the Maragua Grant. Laderen surveyed the grant in accordance with those instructions in June, 1885, for 598.44 acres.[5]
As a result of all the confusion caused by the numerous surveys and protests over location of the boundaries of the grant, Congress failed to act upon the grant prior to the creation of the Court of Private Land Claims. On February 11, 1892, Gonzales filed suit[6] in that court seeking the recognition of the grant which he alleged contained about 1,800 acres. The United States in its answer set up as special defenses the want of power in the Territorial Deputation to make a valid grant and also a want of jurisdiction in the court since the land embraced within the claim had previously been acted upon by Congress and patented to the New Mexico Mining Company.
By decision dated June 26, 1895, the Court sustained the government’s contentions and, following the decision of the United States Supreme Court in the Vigil case,[7] rejected the grant on the ground that the Territorial Deputation had no authority to make a valid grant.[8] Realizing that a further prosecution of the claim would be futile, Gonzales elected not to appeal the decision.
[1] H. R. Misc. Doc. No. 181, 42d Cong. 2d Sess. 56 (1872).
[2] Ibid., 56‑58.
[3] Ibid., 61‑64.
[4] The Gotera Grant No. 56 (Mss., Records of the S.G.N.M.).
[5] Ibid.
[6] Gonzales v. United States, No. 83 (Mss., Records of the Ct. Pvt. L. Cl.).
[7] Vigil v. United States, 13 Wall. (80 U.S.) 449 (1871.)
[8] 2 Journal 385 (Mss., Records of the Ct. Pvt. L. Cl.).
Gotera Grant; J.J.Bowden's research on land grants;