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Jose Leyba Grant
by J. J. Bowden
Jose de Leyba, a resident of Santa Fe, appeared before Governor Juan Domingo de Bustamante on May 24, 1728, and registered a piece of vacant land and woods, enough for half a fanega of corn planting land somewhat more or less which he described as being bounded:
On the north by the lands of Captain Sebastian de Vargas; on the east, by the San Marcos road; on the south, by an arroyo called Cuesta del Oregano; and on the west, by the lands of Juan Garcia de las Rivas.
Bustamante granted the land to Leyba on the following day on condition that he settle upon the land within the time proscribed by the royal ordinances and directed the Alcalde of Santa Fe to place him in royal possession of the grant Alcalde Diego Arias Quiros after having inspected the lands, performed the customary ceremonies for the delivery of possession on May 25. 1728.
Leyba and his lineal descendants were in actual pos¬session of the premises until about 1839, when his great grandson Juan Angel de Leyba was killed on the grant near Coyote Spring by the Navajos. Shortly thereafter the grant was abandoned due to the hostility of the Indians, There is no evidence that it was ever reoccupied by any member of the Leyba family. The Leybas apparently forgot about the grant until its expediente was discovered in the archives as a result of the search for documentary evidence to sustain the validity of the western portion of the Sebastian de Vargas Grant. Following the discovery, Mariano F. Serna hunted up the Leyba heirs and purchased their interests.
On September 29, 1899, Serna filed suit in the Court of Private Land Claims under Section 8 of the Act of March 3, 1891 seeking the confirmation of the grant, which he alleged was complete and perfect. Although the grant had never been officially surveyed, he estimated that it contained about 18,000 acres. After filing the petition it was found that the grant conflicted with the Los Serrillos Grant and a patented mining claim owned by the American Turquoise Company. Upon the motion of the government, the owners of these adverse interests were made parties defendant. The government, in its answer, denied the allegations set forth in the plaintiff’s petition. As special defenses, it asserted that the grant was actually located in a different manner than depicted in the plaintiff’s sketch map and was barred by the two year statute of limitations set forth in Section 12 of the Court of Private Land Claims Act.
The case came up for trial on April 30, 1900. Serna introduced a copy of the grant papers, together with other documentary evidence from the Archives, tending to show that Juan Garcia de las Rivas owned a tract of land west of the Leyba tract, known as the old Pueblo de la Cienega. He also offered a great deal of oral testimony tending to establish the boundaries of the grant. The government, in turn, offered oral testimony by old timers who lived in the vicinity of the grant to the effect that the grant was unknown at the time of the American occupation of New Mexico. It also introduced evidence tending to show that the Jose de Leyba Grant covered only one half of a fanega of land or 4.41 acres and was located within the City of Santa Fe. In the alternatives, the government argued that even if it were originally valid, the Royal Ordinance of October 15, 1754 required the revalidation of all grants made after 1700 and since there was no evidence of such action, the grant was not a perfect grant. If the grant was not perfect, it was barred under Section 12 of the Court of Private Land Claims Act. As a final argument against the recognition of the claim the government contended that the plaintiff’s testimony showed that long prior to the American occupation of New Mexico, the grant had been abandoned and that under Mexican law the abandonment of a grant amounted to a defeasance of title. By decision dated May 10, 1900, the Court rejected the grant on the ground that, notwithstanding the tact that a valid grant originally had been made covering the lands described by the plaintiff, there was no evidence that it had been revalidated as required by the Royal Ordinance of October 15, 1974, and since it was not a perfect grant, it was barred prior to the filing of the plaintiffs suit.
Serna appealed the decision to the United States Supreme Court which affirmed the decision on April 6 1903. In its decision, the Supreme Court stated:
If this be considered an imperfect grant, the right to file it expired years ago; if it be a perfect grant as now claimed, we see no reason why the owner may not prosecute his claim in the territorial courts. Without expressing an opinion as to whether this was a perfect or imperfect grant within the meaning of the law or whether the boundaries might not still be ascertained by a survey, we are satisfied that it is one which the Court of Private Land Claims could not be called upon to confirm, and that, if for no other reason the petition should be dismissed upon the ground of laches.
Upon Serna’s motion for rehearing the court modified its opinion on June 1, 1903 by ordering the dismissal of the action but without prejudice to such further proceedings as he might be advised to take.
Pursuant to this decision, Serna brought an action of ejectment against the American Turquoise Company for the 50 acre tract upon which its mine was located. The District Court was of the opinion that Serna had failed to prove that the grant covered the tract and, therefore directed a verdict for the defendant. The judgment was affirmed by the Supreme Court of New Mexico on the ground that the grant did not appear to have been confirmed as required by the Royal Ordinance of October 15, 1754, and that the evidence of possession was too vague to raise a presumption in place of proof and, therefore was an imperfect grant which furnished no basis for an action of ejectment. Serna appealed the decision to the United States Supreme Court which noted that Serna’s case was predicated upon a theory that the common boundary between the Jose de Leyba and Juan Garcia de los Rivas Grants was a north south line drawn through the Penasco Blanco. Continuing, the court noted that this conclusion could not be true for the Los Serrillos Grant which had previously been confirmed, covered land east of that line including the 50 acre tract in question Therefore it affirmed the judgment stating that a Mexican grant could not support an action in ejectment when the evidence offered to identify its boundaries was insufficient to show that they included the land in dispute. This decision laid the Jose de Leyba Grant to rest.
 Archive No 441 (Mss., Records of the A.N.M.).
 Serna v United States, 278 (Mss., Records of the Ct. Pvt. L. Cl.).
 Court of Private Land Claims Act, Chap 539, Sec. 8, 26 Stat 854 (1891).
 Archive No. 278 (Mss., Records of the A.N.M.).
 Ibid., No. 313.
 Reynolds. Spanish and Mexican Land Laws, 55 (1895).
 Court of Private Land Claims Act, Chap 539 Sec. 12, 26 Stat., 854 (1891).
 4 Journal 169 (Mss., Records of the Ct. Pvt. L. Cl.).
 Serna v, United States, 189 U.S. 233 1903).
 Serna v, United States. 189 U.S. 504 1903).
 Serna v American Turquoise Co. 14 N.M. 511, 98, P. 170 (1908).
 Serna v American Turquoise Co. 220 U.S. 497 (1911).