by J. J. Bowden
While searching the archives in the Surveyor General’s office, Alexander McK Irvine discovered the expediente for the Jose Duran Grant, This document is comprised of three instruments a petition, a granting decree, and an Act of Possession. The petition showed that Jose Duran had requested a tract of vacant agricultural land situated south of the Santa Fe River and described as being bounded:
On the north, by the lands of Juan Antonio Flores arid Antonio Dominguez; on the east, by the lands of Corporal Juan Cayentano Lovato; on the south by the heights of the Chamisos Arroyo; and on the west, by the road to Galisteo.
Duran stated that he was burdened with many obligations but had no land with which to discharge them. He assured the Governor that it was this motive and not bad faith which prompted him to request a grant covering the premises. The second instrument shows that on August 16, 1743, Mendoza, after examining the plea and finding it ought to be given, granted the tract to Duran and ordered the Alcalde of Santa Fe, Antonio de Ulibarri, to place him in royal possession of the land, The final instrument showed that Ulibarri after ascertaining that the grant neither conflicted nor interfered with the rights of any third person placed Duran in possession of the tract, whose boundaries he designated as being:
On the north, the Arroyo de los Pinos which formed the southern boundary of the lands of Juan Antonio Flores; on the east, the road to Pecos; on the south, a cross on the summit of the hills bordering the Chamisos Arroyo; and on the road to Galisteo.[1]
McK Irvine noted that while no one was living on the grant in 1879, Jose E. Duran and his sister, Refugio Salazar, lived in Santa Fe. McK Irvine assumed that they were remote descendants of the original grantee and purchased their interest. However, he never presented his claim to the Surveyor General for his examination.
On April 30, 1892, Kate McK Irvine, Alexander’s widow, filed suit in the Court of Private Land Claims seeking the recognition of the grant.[2] In her petition she asserted that a private survey of the grant showed that it contained 425.85 acres. Since the grant was located within the then pending claim by the City of Santa Fe for four square leagues of land surrounding the center of the plaza, the United States merely filed a general answer putting in issue the allegations contained in the plaintiff’s petition.
When the case came up for trial on March 10, 1897, the plaintiff offered Archive No. 237 together with some rather vague testimony which tended to show that Jose Duran has some corrals on the land. The plaintiff’s case was materially damaged by the following testimony from one of McK Irvine’s grantors, Jose E. Duran:
Q. How long have you known of the existence of that grant?
A. I did not know whether it existed, only they were purchasing and yet I do not know whether it exists or not. They told me I had a right and that it was purchased from me.
Q. How did you claim that right, do you know?
A. They told me it belonged to my grandfather.
Q. Who was your grandfather?
A. Juan Duran
Q. The original grantee referred to here?
A. I do not know ‑ I do not know whether it was another Juan Duran ‑ he was my grandfather.
Q. You sold your interest in the grant whatever it was?
A. That’s it, what I might have, if I had any.
In his closing argument, the government’s attorney contended that this was another of those cases where a plaintiff had located an unclaimed grant, acquired quit claim deeds from parties, living in the vicinity of the grant and attempted to file a suit for the confirmation of the grant based solely upon the principle of idem sonans. Continuing, he pointed out that there was no evidence showing that Duran had ever complied with the conditions of settlement and occupation prescribed by Spanish law but on the contrary had abandoned the grant long prior to the United States’ acquisition of New Mexico.
The Court entered a decree rejecting the grant and dismissing the plaintiff’s petition on March 17, 1893, because she had not satisfactorily proven that the conditions of occupation and settlement had been fulfilled.[3] The plaintiff immediately prayed for an appeal to the United States Supreme Court, which was granted, however, the appeal was dismissed on October 17, 1898, when the plaintiff failed to have the case docketed in conformity with the court’s rules.[4]
[1] Archive No. 237 (Mss., Records of the S.G.N.M.).
[2] McK Irvine v. United States, No. 12 (Mss., Records of the Ct Pvt. L. Cl.).
[3] Journal 138 (Mss,, Records of the Ct Pvt. i Cl.),
[4] McK Irvine v. United States, No 12 Mss., Records of the Ct Pvt., L. CL).
Jose Duran Grant; J.J. Bowden's research on land grants;