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Nerio Antonio Montoya Grant

by J. J. Bowden

Nerio Antonio Montoya, a resident of the Town of Valencia, petitioned the Ayuntamiento of Tome on February 28, 1831, applying for a grant covering a tract of vacant land containing about half a league of land. He described the tract as being located in a canon about one league from the Manzano Grant and extended from Ojo del Medio to the Rancheria. He called attention to the fact that he had no lands of his own upon which to support his large family and, while his wife’s parents owned land near Valencia, the share which she might inherit would not be large enough for their sup­port. He also carefully pointed out that the grant would not be injurious to the inhabitants of the area in regard to the pasturing of their livestock since the lands were barren, contained little water, and were valuable only for cultivation on a small scale. The Ayuntamiento transmitted the petition to the Territorial Deputation on March 19, 1831, with a recommendation that the grant be made. The Territorial Deputation granted the land to Montoya on November 12, 1831 and directed the Alcalde of Tome to “execute the document that will secure the grantee in the grant hereby made to him.”[1] Alcalde Miguel de Olona notified Montoya on December 7, 1831 that he had received a copy of the proceedings and that he would be available to place him in legal possession of the premises any time he so desired. Five days later Olona, at Montoya’s request, went to the grant and designated the following natural objects as its boundaries:

On the north, the highest part of the Cañon Mountain ridge; on the east, the Apache Rancheria; on the south, the commencement of the little valley of the Cuerbo up to a spring situated therein commonly called Cuerbo Spring; and on the west, the Ojo de en Medio.

Upon the completion of the survey, Olona performed the cer­emonies customarily enacted in connection with the formal delivery of possession. A dispute apparently arose between Montoya and Olona over the fee to be paid to Olona for his service. The matter was referred to Governor Jose Antonio Chaves, who, on December 22, 1831, held:

. . . . I am ignorant in the premises, and that you may, if you choose to do so, put the question to the assessor, who is the officer to whom it belongs to advise the Alcaldes of the first instance in such cases.[2]

The dispute must have been amicably settled, for there are no further proceedings in connection with the fee to be paid to the alcalde. Montoya owned the grant until October 2, 1848, when he sold it to Juan Perea and his sister, Dolores Perea.

J. Francisco Chavez filed the testimonio of the grant and petitioned Surveyor General John A. Clark on December 19, 1863, seeking the confirmation of his title to the premises. However, no action was taken on the claim until June 20, 1871, when Surveyor General T. Rush Spencer made a report to Congress in which he recommended the confirmation of the grant.[3] A preliminary survey of the grant was made in October, 1877, by Deputy Surveyors Sawyer & White Their survey showed that the grant contained 3,546.06 acres.[4]

Since Congress had not acted upon the claim, it was re‑examined by Surveyor General George W. Julian under the instructions dated December 11, 1885, which he had received from the Commissioner of the General Land Office. In a Supplemental Report dated May 8, 1886 [5] Julian held:

At the date of the alleged grant, the Mexican colonization law of 1824 and the regulations thereunder of 1828 were in force. In reference to the power to grant land under these, the Supreme Court of the United States has held “that the only law in force in the territories of Mexico for disposition of the public lands, with the exception of those relating to missions and towns, are the act of the Mexican Congress of 1824 and the regulations of 1828”. (U.S. v. Vigil, 13 Wall., 499.) The court also decided in the same case that the governor alone, under these laws and regulations, was authorized to make grants of public lands, and that the departmental assembly could not, without the consent of the governor make the grant. The same court in the case of Peralta v. United States, 3 Wall., 434, said: “The Colonization Regulations of 1828 constitute the ‘laws and usages’ by which the validity of a Mexican title is to be determined”. Upon the subject of proof of claims of this character, the court in the same case said: “Written documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, will not surface (sic) if it is obtained from private hands, and there is nothing in the public records of the country to show that such evidence ever existed.” [6]

Since there was no evidence of the grant in the archives and the testimonio showed upon its face that the grant had been made by the Territorial Deputation, Julian recommended that the claim be rejected by Congress.

Term after term passed and Congress continuously failed to act upon either of the Surveyor General’s reports.

Shortly after the establishment of the Court of Private Land Claims, Chaves turned to that forum for relief. He instituted a suit against the United States on July 16, 1892, in an effort to secure the recognition of his title to the grant.[7] He attempted to overcome the objections raised by Julian’s supplemental report pertaining to the lack of authority in the Territorial Deputation to make the grant by showing that the governor probably was present and presided over the meeting of the Territorial Deputation on the date the grant was made and, therefore, since he did not protest the grant must have participated in or acquiesced in the issuance of the concession. This, Chaves argued, was tantamount to and the same as a grant by the governor himself in his official capacity. In the alternative, he asserted that even if the grant originally was involved, it had been ratified and confirmed by the governor by his decree of December 22, 1831. He also introduced the deeds whereby Juan and Dolores Perea conveyed their respective interests in the grant to him. The governor stipulated with the plaintiff that the testimonio was genuine but alleged in the answer, as a special defense, that the Territorial Deputation had no authority to make a valid grant and the participation of the governor in the meetings at which the grant was made as an ex officio member of that august body would not cure the defect. The government pointed out that the law required the grant to be made by the governor with the consent of the Territorial Deputation and not vice versa.

The court sustained the government’s contention and rejected the claim on the basis of the decision of the Supreme Court in the Vigil Case[8]  which held that the Territorial Deputation had no power to make a valid grant. In answer to the Plaintiff’s argument, it held that the governor’s presence at the meeting made no difference, since the exclusive authority to make grants of public lands in New Mexico in 1831 was in the governor and the Territorial Deputation had no jurisdiction in the matter.[9] The court also held that the decree of December 22, 1831 could not be construed to be a confirmation of the grant, since it was merely instruction to the alcalde pertaining to his file in connection with certain proceedings to which the governor stated he was ignorant. The court noted that many reasons could be advanced why the governor had not protested the actions of the Territorial Deputation in making the grant, but the claim that the decree of December 22, 1831 was equal to a positive grant by the governor was untenable. Chaves appealed the decision to the United States Supreme Court, which, by decision dated December 22, 1899, affirmed the decision of the Court of Private Land Claims.[10]

[1] H. R, Misc. Doc No. 181, 42nd Cong., 2nd Sess,, 13 (1872).

[2] Ibid., 14.

[3] Ibid., 14.

[4] The Nerio Antonio Montoya Grant, No. 51 (Mss., Records of the S.G.N.M.).

[5] S. Exec. Doc. No. 4, 49th Cong., 2nd Sess., 4‑6, (1886).

[6] Ibid.

[7] Chaves v, United States, No. 20 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] United States v. Vigil, 13 Wall. (80 U.S.) 449 (1871),

[9] 3 Journal 30 (Mss., Records of the Ct. Pvt. L. Cl).

[10] Chaves v. United States, 175 U.S. 552 (1899).