by J. J. Bowden
Domingo Romero together with his two half‑brothers Miguel and Manuel Ortiz, petitioned Governor Juan Bautista de Anza for a grant covering a tract of vacant land at the foot of the Mesita de Juana Lopez. They advised the Governor that they needed the grant as a pasturage for their cattle and sheep and designated the following natural objects as its boundaries:
On the north, by the brow of the mesa; on the east, by the lands of the Ortegas; on the south, by the surplus lands from the Canada de Juana Lopez; and on the west, by the lands of Juan Antonio Fernandez.
On January 18, 1782, Anza, being cognizant that the Issuance of the grant would afford greater protection to the vicinity of the capital, made the requested concession to the three petitioners in the name of the King for the sole purpose of pasturing stock. The decree also directed Carlos Fernandez to give notice of the grant to the adjoining landowners and if they had no objection thereto, commissioned him to place the grantees in possession of the premises. By virtue of this decree, Carlos Fernandez met with the interested parties and examined their title papers. He found that the Ortegas and Bernardo de Sena owned the lands lying east of the grant and that their western boundary lines were located on the east side and along the foot of the Mesita de Juana Lopez and the mouth of the canon known as Las Bocas. Thus, the entire mesa was public land, The Cieniguilla Grant adjoined the grant on the north, and its owners claimed the brow of the mesa and the canon de las Bacas as their southern boundary. Next he noted that the lands south of the grant were vacant and, therefore, there was no adjoining landowner in that direction. He attempted to contact Juan Antonio Fernandez, who owned the lands west of the grant, but was unable to locate him or examine his title documents. However, he was advised that his eastern boundary was located at the Penasco Blanco which was located near the western end of the canon. At the conclusion of his investigation into the boundaries of the grant, Carlos Fernandez remarked:
Nature herself has placed immovable landmarks, as on the west it terminates with said canon, also on the east it terminates at a short distance from the lands of Bernardo de Sena, and on the south it is a rugged rock and having measured said mesa of Juana Lopez, from east to west, which is its length, it contains six thousand five hundred varas. I did not measure from north to south because no correct measurement could be made for the reason that on the south there are innumerable gulches which widen and narrow according to the ruggedness which either extends to the south or to the north.
Since he encountered no opposition to the grant, Carlos Fernandez placed the three grantees in royal possession of the grant in the usual manner by performing the customary ceremonies.[1]
The three grantees promptly commenced using the grant as pasturage for their livestock and cultivated small portions. Domingo Romero inherited the entire grant following Miguel and Manuel Ortiz’s deaths without issue. The heirs of Domingo Romero filed the testimonio of the grant and petitioned Surveyor General James K. Proudfit seeking its confirmation on September 30, 1872. They stated that while the grant had never been surveyed they believed that it measured about six miles from east to west and fifteen miles from north to south. In connection with his examination of the claim, Proudfit took the testimony of two witnesses which tended to support the petitioners’ allegations that the lands described in the testimonio had been occupied by the grantees or their heirs since the inception of the grant and that Romero had inherited the interests formerly owned by the Ortiz’s. As a result of this cursory investigation, Proudfit announced a decision on November 29, 1872 in which he found the grant papers to be genuine and recommended the confirmation of the grant to Domingo Romero, Miguel Ortiz, and Manuel Ortiz and their legal representatives.[2] He estimated the grant to contain 69,000 acres.
The grant was surveyed in October, 1876, by Deputy Surveyor Rollin J. Reeves for 42,022.25 acres instead of the 69,000 acres as originally estimated. The survey was approved by Proudfit’s successor, Henry M. Atkinson, on February 28, 1877, and forwarded to Congress. The claim was referred to the Committees on Private Land Claims of both houses of Congress. The Committees on Private Land Claims reported that the facts seemed to authorize the confirmation of the grant.[3] Based upon this favorable recommendation, Congress, by act approved on January 28, 1879, confirmed the grant which had been designated as claim number sixty‑four and duly surveyed by the United States…” This act further provided that such confirmation was to be construed only as a quit claim or relinquishment of the right of the United States and it was not to be liable to make compensation for any part of said land to which there are or may he any adverse rights or claim.” [4]
On September 30, 1882, Elian Brevoort, who claimed an interest in the Ortiz Mine Grant, petitioned the Commissioner of the General Land Office seeking an investigation of the Reeves Survey which he alleged extended the southern boundary of the grant at least ten miles too far south and thereby causing it to conflict with about 12,000 acres of land embraced within the Ortiz Mine Grant.
By decision dated March 31, 1883, Commissioner N. C. McFarland noted that the Act of Possession called for the grant to be 6,500 varas in length or a fraction over three and a half miles and that it is inconceivable that Carlos Fernandez would have described the grant as being 6,500 varas in length if its north‑south measurement was three times longer. Since he had grave doubts as to the correctness of the survey, he instructed Surveyor General Atkinson to fully investigate the matter. Atkinson wrote McFarland on April 16, 1883, calling his attention to the language in the Act of January 28, 1879, which confirmed the Mesita de Juana Lopez Grant as having been “duly surveyed.” He interpreted this provision as a confirmation of the grant as surveyed by Reeves, and therefore, an investigation would be useless for it could effect no change even if it proved that the allegations contained in Brevoort’s petition were true. McFarland apparently concurred with Atkinson’s interpretation of this language for he cancelled the investigation on May 10, 1883.[5]
Surveyor General George W. Julian, by letter dated June 19, 1886, called Commissioner William A. J. Sparks’ attention to Brevoort’s petition and stated that if the allegations contained in the petition were true the grant contained not only portions of the Ortiz Mine Grant and the Pueblo of Santo Domingo Grant, but also a considerable quantity of public lands upon which were located a number of valuable coal beds. Pursuant to an order dated July 7, 1886, by Sparks, Julian proceeded to conduct an exhaustive investigation which indicated that the southern boundary of the grant should have terminated at some rough rocks lying north of the Galisteo River and that its western boundary was about a quarter of a mile too far west. Based on the findings of this investigation, Sparks’ successor, S. M. Stockslager, held that the Reeves Survey had exaggerated the grant to more than three times its proper size and ordered a resurvey of the grant. He stated that he did not believe that it was the intention of Congress to confirm a mere preliminary survey and thus preclude the government from investigating the true boundaries of the claim or detecting fraud. In connection with the “duly surveyed” clause contained in the act of confirmation, he contended it “was interpreted as merely giving a history of the claim and for the purpose of closer identification.”[6]
The owners of the grant appealed this decision to the Secretary of Interior. By decision dated May 13, 1893, Secretary of Interior Hoke Smith reversed Stocksiager’s decision, stating:
It seems that these objections to the survey are made so late that your office and this Department are precluded from inquiring into them by the terms of the act of confirmation, supra. About the construction of that act I have no doubt. In my opinion Congress confirmed the grant in accordance with the survey which had been made and was then as much as any other part of the record, before that body… Congress having thus taken final action on the grant, and the confirmatory act not requiring the issue of patent to the confirmees, this Department is absolutely without further jurisdiction in the premises. The Supreme Court has said in relation to these claims, “The final action on each claim reserved to Congress of course, conclusive, and therefore not subject to review in this or any other form.” Astiazaran v. Santa Rita Mining Co., 148 U.S. 80 (1893).[7]
[1] Archive No. 1261 (Mss., Records of the A.N.M.).
[2] H. R. Exec. Doc. No. 128, 42 Cong., 3d Sess., 14 (1873).
[3] S. Report No. 149, 45th Cong., 2d Sess., 2 (1878).
[4] An Act to confirm a certain private land claim in the territory of New Mexico, Chap. 31, 20 Stat. 592 (1879).
[5] The Mesita de Juana Lopez Grant No. 64 (Mss., Records of the S.G.N.M.).
[6] Ibid.
[7] Mesita de Juana Lopez Grant, 16 L.D. 445 (1893).
Mesita de Juana Lopez Grant; J.J Bowden's research on land grants