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Nestra Senora de los Dolores Mine Grant

by J. J. Bowden

While prospecting in the Bonanzita Mountains, Luis Aguilar, a professional miner from Chihuahua, stumbled upon a shallow pit which contained interesting traces of gold in a white quartz lode. Aguilar appeared before Jose Albino Chacon, Alcalde of Santa Fe and also judge of the First Instance of the Central District by operation of law, on April 7, 1846, notified him of the discovery and deposited a twelve ounce nugget of gold which had been taken from the diggings. Chacon accepted the deposit but advised Aguilar that he and his partner, Mariano Varela, would have to file a written petition formally registering their claim in accordance with the mining laws within ten days in order to perfect their interests. Five days later Aguilar and Varela registered the claim, which they had named as the Nuestra Senora de los Dolores Mine, with Chacon. On the following day Chacon approved the registry and directed applicants to proceed with the performance of the exploratory operations prescribed by the mining law and compile them within a period of ninety days. Since they did not have the capital to conduct the requisite work, Aguilar and Varela entered into a partnership with Jose Antonio Otero and Antonio Jaquez under which they were to receive an interest in the mine in exchange for their financing the entire enterprise. The four partners notified Chacon on July 12, 1846, of the formation of the mining partnership and that they had completed the sinking of the shaft as required by Section 4 of Chapter 6 of the Mining Ordinance of 1783.[1] The petition closed with a request that the partners be granted four “portions” of land which they were entitled to receive under Section 2, Chapter 11 of the Mining Ordinance[2] and that either he or the Judge of the mining town of Real de San Francisco de Tuerto place them in possession of the mine. In a memorandum dated July 14, 1846, Chacon advised the petitioners that he could not delegate the authority conferred upon him by law to the judge of a mining town. Therefore, he would deliver possession of the mine to them at the first opportunity. One week later Chacon went to Real de San Francisco de Tuerto and, upon his arrival, appointed Julian Tenorio as mining expert to examine and report upon the nature of the mine and extent of work which had been performed by the partners. Since there was no mining expert and Tenorio was apt, the partners agreed to his appointment. Chacon, together with his witnesses, Tenorio, and the partners, then proceeded to the mine. Upon their arrival Tenorio inspected the mine and reported that the shaft was ten varas deep and one and a half varas in diameter, that the shaft followed a vein of gold which ran northward from the mouth of the mine along a plane parallel to the base of the hill, and that the sides of the mine were of greatest firmness. Being satisfied that the preliminary ep1oratory work had been done, Chacon granted and placed Aguilar, Varela, Otero and Jaquez in possession of the mine, which was described as being bounded by four points located the following distances from the mouth of the mint:

On the north, 800 varas; on the east, 190 varas; on the south, 400 varas; and on the west, 10 varas.[3]

The grantees promptly proceeded with the development of the mine and in a short time they were shipping ore by burro to Chihuahua for smelting. However, General Stephen W. Kearny’s conquest of New Mexico halted further operations. Aguilar, Varela, and Jaquez elected to retain their Mexican citizenship and returned to Chihuahua. Since Otero was not a miner and was preoccupied with other business interests he never attempted to work the mine. Following Otero’s death, his nephew, Marino S. Otero found the testimonio to the mine amongst his uncle’s papers.

Meanwhile, the owners of the Canon del Agua Grant had reopened the mine and acquired a patent to the lands upon which it was located by reversing the east and west calls of their grant. Since the mine was extremely valuable, Mariano S. Otero caused a suit to be instituted in an effort to have the patent set aside. He was so confident that the patent to the Canon del Agua Grant eventually would be invalidated, that he filed the testimonio and petitioned Surveyor General Clarence Pullen seeking the confirmation of the Nuestra Senora de los Dolores Mine Grant on August 12, 1882. No further action as taken on the claim until February 21, 1883, when the testimony of Antonio Jaquez was offered by Otero in support of the grant. In the fall, Surveyor General George W. Julian notified him that while he desired to dispose of the case promptly, he would receive any additional evidence which he might desire to offer. Notwithstanding several further promptings, Otero made no response. Therefore, Julian proceeded to reach a decision on the validity of the grant based upon the evidence then before him. In a decision dated June 19, 1889, Julian held that while he believed the testimonio to be genuine, the claimants had abandoned the mine. He pointed out that under Spanish law a mine would be deemed abandoned if the operations were not conducted in it for four consecutive months. The opinion closed with a recommendation that the grant be rejected.[4]

Since Congress had not acted upon the claim and the United States Supreme Court had set aside the patent to the Canon del Agua Grant,[5] Otero filed a suit[6] in the Court of Private Land Claims on February 28, 1893, seeking the recognition of the Nuestra Senora de los Dolores Mine Grant, which covered only 42 acres of land. The government filed a general answer putting the allegations in the plaintiff’s petition into issue.

When the case came up for hearing, Otero offered the testimonio of the grant as evidence in support of his claim. The government objected to the introduction of the instrument, not on the ground that it was not genuine, but because Chacon, as Acting Judge of the Court of First Instance, had no authority to make a valid concession and, therefore, the grant was void and could not serve as a basis for the confirmation of the claim. The government also contended that under the laws of Mexico, as construed in the Castillero Case,[7] the Mining ordinance of 1783 furnished the exclusive method of securing a title to a mine up to 1842. It pointed out that under such ordinance title could be obtained only by appearance and registration before the Deputation of Mining of the district in which the mine was located or if there was no Deputation of Mining in the district then the appearance and registration was to be made to and by the Deputation of Mining in the nearest district having one. It was further urged that while on December 2, 1842, a decree was promulgated by the Mexican government giving the mining courts of the First Instance certain jurisdiction in mining matters, such courts were never established in New Mexico. Therefore, the only authority from which title legally could be obtained was that provided in the Mining ordinance of 1783. To sustain its contention, the government introduced Archive No. 1143 from the archives of New Mexico showing that on April 27, 1846, Juan Bautista Tournier had requested the establishment of mining courts in New Mexico. Tournier’s petition pointed out that prospectors were generally poor and could not bear the vexations and expense entailed in going outside New Mexico to register their claims before the nearest Mining Court of the First Instance. Governor Manuel Armijo referred the petition to the Department Assembly which recommended the establishment of such courts by the Supreme Government under the decree of December 2, 1842. However, it does not appear that any further action was taken on the problem.

The Court sustained the government’s argument and in its decree dated September 5, 1896, rejected the claim on the ground that under the doctrine of the Castillero case the local Deputation of Mining was the only tribunal in New Mexico before which the registration and adjudication of title to the Nuestra Senora de los Dolores Mine could legally have been held.[8] An appeal was taken but was dismissed by the United States Supreme Court on October 11, 1898, at Mariano’s request.[9]

Once the decision became final, these valuable mineral lands were restored to the public domain only to be appropriated by associates of the plaintiff under the public land laws.

[1] Rockwell, Spanish and Mexican Law, 59 (1851).

[2] Ibid., 70. A portion is described in Sections 2 and 3 of Chapter 8 of the Mining Ordinance as a 200 vara square tract of land. Ibid. 57.

[3] The Nuestra Senor de los Dolores Mine Grant No. 162 (Mss., Records of the S.G.N.M.).

[4] The Nuestra Senora de los Dolores Mine Grant No. 162 (Mss., Records of the S.G.N.M.).

[5] San Pedro & Canon del Agua Co. v. United States, 146 U.S. 120 (1892).

[6] Otero v. United States, No. 147 (Mss., Records of the Ct. Pvt. L. Cl.).

[7] United States v. Castillero, 67 U.S. (2 Black) 17 (1863).

[8] 3 Journal 91 (Mss., Records of the Ct. Pvt. L CL).

[9] Otero v. United States, 19 S. Ct. 879; 43 L. Ed. 1178 (1898) (mem.).