by J. J. Bowden
Mariano S. Otero filed a petition[1] in Surveyor General George W. Julian’s office on September 28, 1887 seeking the confirmation of a grant which allegedly had been made to Joe García sometime prior to the year 1762, covering a tract of land bounded:
On the north, by the Miguel and Santiago Montoya Grant; on the east, by a line connecting the southeast corner of the Montoyas’ grant with the northeast corner of the Antonio Baca Grant; on the south, by the Antonio Baca Grant; and on the west, by the Chaca Mesa Grant.
He stated that the expediente of the grant had been filed in the Spanish archives at Santa Fe, but that the United States had permitted the archives to be “despoiled, mutilated, lost, thrown away, sold, and otherwise wrongfully disposed of by the very officers …” in whose care they had been committed. And, as a result of such gross carelessness, the expediente had been lost or destroyed without any “wrong, fraud, fault, or negligence imputable” to him. He also alleged that the testimonio of the grant could not be found. He contended that notwithstanding the loss of both the expediente and testimonio of the grant, there were other records in the archives which showed that the Spanish government had recognized, approved, and described the grant. In support of his claim, Otero filed a copy of (1) the Act of Possession dated August 3, 1762 for the Antonio Baca Grant which called for the northern boundary to be located at “the boundary of the lands of Jose García,” (2) the Act of Possession dated February 14, 1767 for the Bosque Grande Grant which described it as being bounded on the south by “the lands of Jose García,” and (3) the Act of Possession dated February 17, 1768 for the Chaca Mesa Grant which was described therein as adjoining the land granted to Jose García on the east. He contended that the reference to the grant in these three contemporaneous and contiguous grants proved that a valid grant had been made to García. He also asserted that it would he “very easy” for a competent surveyor to locate the boundaries of the grant upon the ground. In an effort to connect himself to the original grantee, Otero alleged that García had died intestate leaving a widow and three minor children. García’s widow and two of his children conveyed their interests in the grant to his third child, Antonio Abad García on August 22, 1796. Upon Antonio Abad García’s intestate death, the grant passed to his daughter and sole heir, Manuela García. On her intestate death, the grant descended to her sole child and heir, Apalonia Lucero. She conveyed it to Gavino García on January 5, 1887 and he, in turn, deeded the premises to Otero on June 29, 1887.[2]
Miguel García appeared before Julian on January 7, 1888 and testified in support of the claim. He stated that he was a great grandson of the original grantee and his grandfather had told him that Jose García had lived at Ojo de Guadalupe and that the ruins of his house could still be seen. He also described the grant as being bounded:
on the north, by the García ford; on the east, by the heights of the black tableland; on the south, by the Cerro del Lindero; and on the west, by the Ojo de la Lomita.
He also gave a detailed account of the genealogy of the descendants of Jose García.
Before Julian could act on the claim, Walter P. Miller, the owner of the Chaca Mesa Grant, protested the approval of the claim. Miller contended that the Jose García Grant was invalid and, since it conflicted with a portion of his lands, its recognition would cloud his title. As a result of Miller’s protest, Julian conducted an extensive investigation into the validity of the claim during which a great deal of oral testimony was taken and each side presented a brief. Otero, in his brief,[3] stated:
Every lawyer familiar with the forms of procedure in the administration of the land laws of Spain, knows that Spanish grants made before the Mexican revolution were always matters of record, part of the government archives … The custody of these archives devolved first on Spain, then on Mexico, and lastly on the United States. It was a sovereign custody … It would be base national perfidy to hold the private citizen to responsibility for national negligences in the execution of this sacred public trust. Yet history demonstrates that the United States has been recreant to duty in the guarding of this trust, made all the more sacred by the express obligations of a solemn treaty. It is admitted in the report of this office that a wholesale devastavit of the Spanish and Mexican archives was perpetrated by United States officials to whose fiduciary care they were entrusted. Indeed, so niggardly has been the pecuniary provision made by Congress for the custody of these archives that only of recent years have the remnants saved from vandal hands been kept in an iron safe … Under these scandalous circumstances it is not strange that needed archives can not be produced by the government when called upon by the confiding beneficiary … The negligence of the American government is fortunately not a fatal obstacle to the approval of the Jose García Grant, since the Spanish records still preserved intact by the United States, conclusively establishes the existence, validity, situation and extent. It is treated as the very point d' apperi of at least three contiguous grants subsequently made.
Miller, in his brief[4] called attention to the fact that:
The Supreme Court of the United States in eleven separate opinions, all cited in Romero vs. United States, 1 Wall. 721, has declared that the record evidence must be produced to entitle such a claim as this to be considered favorable, and such has been the continuous holding of that court to this date … The absence of continuous possession is in itself sufficient to defeat the claim. There is not even a pretense of either continuous or any other possession of the land now claimed. As to the weight of such possession when no archive evidence of a grant is produced, Mr. Justice Field, in delivering an opinion of the supreme Court of the United States used the following pointed language: “If they (the archives of the country) furnish no information on the subject (of the issue of the grant) a strong presumption naturally arises against the validity of the instrument produced which can only be overcome, if at all, by the clearest proof of its genuineness accompanied by open and continual possession of the premises (Pico v. United States, 2 Wall. 270).” The case of Sebastian de Vargas Grant, referred to by counsel, cannot fairly be cited as a precedent in this case. There the bona fides of the claim were supported by proof of many years’ continuous possession as the claimants and those under whom they claim title, proper evidence within the rule laid down by the Supreme Court of the United States in Pico v. United States, 2 Wall. 279. Here there is no pretense of occupation of the land, nor other act indicating belief of the alleged grantee or his heirs that he or they had any right to possess any part of the land now claimed. On the contrary, the evidence shows that homes have been established on the land under the public land laws of the United States; that the United States has granted a part of it by its public patent, and that towns with churches and schools have grown up and existed for years upon it, and that until six months ago no heir or assignee of Jose García or any of his heirs has made a sign or uttered a word of disapproval or protest.
Julian announced his opinion[5] on the claim on April 9, 1888. After noting that the case presented “some novel and peculiar features” which prompted careful consideration, he proceeded to discuss the several issues raised by the briefs. First, he noted that while certain old documents and papers found among the Mexican archives and regarded as worthless had been sold as wastepaper, there was no proof that any Spanish or Mexican grants ever had been lost or destroyed. Next, he called attention to the fact that there was no evidence that the expediente of the grant had ever been in the custody of the United States or any effort by Otero to explain the loss of the testimonio. Continuing, Julian held that the references to “lands of Jose García” in the grant papers for the three contiguous grants was no evidence a grant in fee had been made to Jose García. He pointed out that Spain often granted its lands in large tracts for purely pastoral purposes, in which case a usufruct and not a fee title was granted. Finally, he noted that the Spanish officials frequently made grants subject to the performance of certain express conditions as well as those imposed by law. He called attention to the fact that there was not a line of record evidence or a word of testimony in the case concerning either the nature or performance of these conditions. Julian concluded his opinion by stating:
I think I have thus made it appear that the claim in this case is utterly unwarranted even granting its alleged recognition by the Spanish Government in the three contiguous grants … I therefore recommend its rejection by Congress.
Julian’s opinion and an abstract of the claim were referred to the Committee on Private Land Claims of the United States Senate on December 4, 1889. However, no further action was taken on the grant by Congress.[6]
Otero was one of the numerous claimants who filed[7] suit against the United States for the confirmation of their grants in the Court of Private Land Claims on February 14, 1893. Although the grant had not been officially surveyed, he estimated that it contained 76,000 acres. When the case came up for trial on May 13, 1897 the plaintiff introduced no direct evidence pertaining to the issuance of the grant or loss of the grant papers but offered the grant papers for the three contiguous grants, which, in the meantime, had been confirmed by the court, in an effort to establish its validity and boundaries from the references therein contained. He also introduced oral evidence tending to show that the premises had been occupied by García and his heirs until the Navajos had rendered its habitation impossible and that the archives had been mutilated both before and after the American occupation of New Mexico. The government offered oral testimony which was negative in character and tending to show that the grant had not been occupied by García’s descendants subsequent to 1829. By decision[8] dated May 26, 1897, the court confirmed the grant insofar as it covered the lands embraced within the following boundaries:
Beginning at the Angostura Hill, which is the southwest corner of the Bosque Grande Grant and a point in the east line of the Chaca Mesa Grant; thence south with the east line of the Chaca Mesa Grant to the north line of the Antonio Baca Grant; thence east along said north line to the northeast corner of the Antonio Baca Grant; thence in a northerly direction to the southeast corner of the Bosque Grande Grant; and thence west to the point of beginning.
Otero requested a rehearing on the ground that the court had fixed the boundaries of the grant in a manner which would not include any land. He argued that since the court had confirmed the concession, it must have intended it to include some land and be more than just a straight line which would result from the strict application of the description contained in the decree. The court sustained Otero’s motion. However, he did not improve his position as a result of the rehearing. In its opinion[9] dated July 5, 1898 the court pointed out that since the delivery of the original opinion, the United States Supreme Court had[10] decided the Hayes case in which it held that the Provisions of the Act of March 3, 1891,[11] which created the court and prohibited it from “allowing any claim that shall not appear to be upon a title lawfully and regularly derived from” Spain or Mexico, precluded it from confirming a grant unless it was satisfied “from the inherent evidence contained in the grant” that the granting officer or body had the power to make the concession. Since there was no evidence in the case showing the identity of the granting authority or the character of the grant, the court held that Otero had failed to sustain the allegations contained in his petition. Therefore, it had no alternative but to reject the grant and dismiss Otero’s petition.
[1] The Jose García Grant, No. 160 (Mss., Records of the S.G.N.M.).
[2] H. R. Exec. Doc. No. 2, 51st Cong., 1st Sess., 2‑5 (1889).
[3] Ibid., 35‑39.
[4] Ibid., 40‑44.
[5]Ibid., 44‑49.
[6] The Jose García Grant, No. 160 (Mss., Records of the S.G.N.M.).
[7] Otero v. United States, No. 92 (Mss., Records of the Ct. Pvt. L. Cl.).
[8] 3 Journal 201 (Mss., Records of the Ct. Pvt. L. Cl.).
[9] 4 Journal 92 (Mss., Records of the Ct. Pvt. L. Cl.).
[10] Hayes v. United States, 170 U.S. 637 (1898).
[11] Court of Private Land Claims Act, Chap. 539, Sec. 13(1), 26 Stat. 854 (1891).
Jose Garcia Grant; J.J. Bowden's research on land grants in the southwest