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Ojo de Borrego Grant

by J. J. Bowden

Mono Antonio Montoya, a resident of the Pueblo of Cochiti, appeared before Governor Pedro Fermin de Mendinueta requesting a grant covering a tract of land bounded:

On the north, by a small spring of water running towards the north; on the east, by the boundaries of the Pueblo of Santo Domingo Grant; on the south, by Pueblo of Santo Domingo Grant; and on the west, by a table land running from north to south and fronting towards Jemez.

Montoya stated that he was living and pasturing his livestock upon his father-in-law’s ranch, but it was insufficient and he feared that his animals would get into and damage the crops of the Indians of Santo Domingo and Cochiti. Therefore, he had purchased[1] the requested tract from Felipe Sandoval on May 6, 1767 for 250 reales, but later found his title to be clouded. As background information on the basis of this title defect, he stated that the tract originally had been owned by Diego Gallegos[2], who, by oral conveyance [3], sold the land to Diego Básquez Borrego. Borrego maintained a rancho on the property for many years, and lived near the Ojo de Borrego. Following Borrego’s death the grant descended to his daughter, whose husband, Lucas Manuel Alcalda, sold the property to Sandoval. Shortly after Montoya acquired the rancho Gallegos’ widow and heirs deeded the land to the inhabitants of the Pueblo of Santo Domingo, who were attempting to secure his ejection. Since he was unable to prove that a valid grant had been made to Gallegos and he, in turn, had sold the premises to Borrego, Montoya turned to the Governor for relief in the form of a new grant. On March 4, 1768, Mendinueta directed Bartolomé Fernandez, Alcalde for the Queres Nation, to report (a) whether the requested land was part of the public domain, (b) whether the proposed grant would prejudice the rights of the Pueblos of Santo Domingo, Cochiti, or Jemez and (c) the distance between the boundaries of the requested tract. In response to this order, Fernandez inspected the premises and three days later reported that the grant would not prejudice the rights of the Indians and described the following natural objects as marking the boundaries of the grant:

On the north, the Sierra del Valle, on the east, the lands purchased by the Indians of the Pueblo of Santo Domingo; on the south, the road to Jemez; and on the west, a small mesa where the road to Jemez and the road between Zia and Cochiti intersect.

He also estimated that the tract was two leagues square. Mendinueta, on the same day, granted Montoya the tract described in Fernandez’s report as a pasturage for his livestock. The governor also ordered Fernandez to place Montoya in royal possession of the premises and return the expediente of the grant to him for filing in the archives. On March 20, 1768 Fernandez, by virtue of the commission conferred upon him in the granting decree, summoned the Indians of the Pueblo of Santo Domingo. After inspecting the boundaries of their lands and being satisfied that the concession would not prejudice their rights, proceeded to deliver possession of the grant to Montoya in the usual and customary manner. A certified copy of the testimonio of the grant was given to Montoya and the original was filed in the archives.[4]

Montoya sold the grant to Juan Antonio Cabeza de Baca on January 24, 1834, for 300 pesos. Thereafter, he claimed and used the land as a pasturage for his stock and gathered wood there from for fuel in his home, which was located in Peña Blanca and was situated only a few leagues east of the grant. Following Baca’s death in 1835, the grant passed to his eleven children.[5]

Baca’s heirs and legal representatives petitioned[6] Surveyor General T. Rush Spencer on July 27, 1871 requesting that the grant be investigated and confirmed pursuant to Section 8 of the Act of July 22, 1854[7] In addition to the expediente of the grant, which was in the Archives[8], the testimonio and the deed from Sandoval to Montoya[9] which came from the possession of the claimants, and a “wild deed,”[10] the testimony of a number of disinterested witnesses was offered which showed that the claimants and their predecessors had held possession of the grant for many years. Surveyor General Henry M. Atkinson completed the investigation of the claim and, on October 20, 1879, rendered an opinion in the case in which he found the grant to be genuine and recommended its confirmation to the heirs and legal representatives of Nerio Antonio Montoya and their assigns.[11] A preliminary survey of the grant, made in October, 1879 by Deputy Surveyor John Shaw, showed that it contained 60,214.13 acres and conflicted with a portion of the Pueblo of Santo Domingo Grant.[12]

Since the procedure provided by the Act of July 22, 1854[13] for the investigation and confirmation of private land claims proved to be an utter failure, Congress established the unique Court of Private Land Claims in 1891 and transferred jurisdiction over the problem, which had stifled the growth of the Southwest for nearly half a century, to that forum. As a result of Congress’ previous failure to pass upon the claim, the owners of the grant were authorized under the Private Land Claims Act[14] to sue the govern­ment for the recognition of the grant. Jose Albino Baca, who claimed an interest in the grant as an heir of the original grantee, filed such a suit[15] on February 17, 1893. A similar suit[16] was filed on March 2, 1893 by Amada Cabeza de Baca, who was also one of Montoya’s heirs. Because the two suits involved the lands and were based upon the same source of title, the court consolidated[17] them on April 9, 1893, and they proceeded to trial under cause number 95.

The consolidated case came up for trial on September 18, 1894 and, since there was no question over the validity of the plaintiffs’ title papers and the plaintiffs had connected themselves with the original grantee, the only controversy in the case involved the quantity of land which had been granted. Jose Albino Baca contended that the grant covered the 60,214.13 acres covered by the Shaw survey. Armada Cabeza de Baca argued that the Shaw survey located the northern boundary of the grant about two miles too far south and the east boundary about a mile too far west. He asserted that the north boundary should be located at the ford of the Sierra del Valle, and the east boundary adjacent to the lands purchased by the Indians of Santo Domingo. If this were correct, the grant would contain about 75,000 acres of land. The government, on the other hand, argued that the grant should he limited to the distances and quantity of land ‑‑ four square leagues ‑‑ mentioned in Fernandez’s report. In his argument, the government’s attorney asserted: 

The governor had directed the alcalde to ascertain whether or not the land petitioned for ought to be granted and to report the distances between the land marks set out, and in the grant he says, “The boundaries of this land so by me granted will be the same and have the distances contemplated in the report referred to and no more.” The governor acted on the report of the alcalde and he had a right to presume that the officer had discharged his duty honestly and faithfully, and that this report as to the distances between the boundaries was correct, and acting on this presumption, he made the grant. It is quite clear that the governor didn't understand that a little more than two leagues meant 10 or 12 miles and that a little less than two leagues meant 8 or 9 miles.

The court, in its decision[18] dated September 29, 1894, sustained the position taken by the government and confirmed the grant to the original grantee and his heirs and assigns for two leagues from west to east and two leagues from north to south It held that notwithstanding the general rule, which provides that where specific boundaries are called for they will prevail over courses and distance, there was evidence in the case that a less quantity of land was intended to be granted and, since such intention was clearly expressed in the granting decree it should prevail. Therefore, it fixed the boundaries of the confirmed tracts as follows:

On the west, by a small mesa where the Jemez and Zia‑Cochiti roads intersect; on the south, by the Jemez Road; and the survey shall be made by taking a point on the south boundary, to wit: the said Jemez Road, and run thence north two leagues and by taking a point on the west boundary, to wit: at the small mesa and run thence east two leagues; and the north and the south end shall be the same width, to wit: two leagues each, that is, the north to south, and two leagues from east to west and no more.

The plaintiffs appealed the decision but failed to have the appeal docketed. Therefore, the United States Supreme Court dismissed the appeal on December 9, 1895.[19] Once the decision of the Court of Private Land Claims became final, an official survey of the grant was ordered. Deputy Surveyor Walter G. Marmon surveyed the tract on July, 1896 for 16,680.00 acres. He showed the above description of the grant caused it to conflict with 522.60 acres covered by the Pueblo of Santo Domingo Grant. The Court of Private Land Claims approved the survey and ordered the issuance of a patent for the 16,157.40 net acres which were not in conflict with the Pueblo of Santo Domingo Grant. however, before the patent was issued the Pueblo of Santo Domingo Grant was resurveyed and the conflict was eliminated. Notwithstanding the elimination of the conflict the parties agreed that lands formerly involved in the conflict had been eliminated from the confirmation of the grant and that its east line should be parallel to the west line. A resurvey of the grant was made in accordance with these principles for 16,079.80 acres. A patent was issued on June 19, 1913.[20]

 


[1] Archive No. 574 (Mss., Records of the A.N.M.).

[2] The tract appears to have been a portion of a larger grant which had been issued to Gallegos by Governor Juan Domingo de Bustamante on January 13, 1730. Archive Nos. 1037 and 1346 (Mss., Records of the A.N.M.).

[3] Since the Statute of Frauds was unknown to the Civil Law, oral conveyances of real property were recognized under Spanish and Mexican Law. Grant v. Jaramillo, 6 N.M. 313, 28 P. 508 (1892); and Herndon v. Casiano, 7 Tex. 322 (1851).

[4] Archive No. 583, (mss., Records of the A.N.M.).

[5] S. Exec. Doc. No. 63, 46th Cong., 3d Sess., 51 (1881).

[6] The Ojo de Borrego Grant, No. 118 (Mss., Records of the S.G.N.M.).

[7] An Act to Establish the Office of Surveyor General of New Mexico, Kansas, and Nebraska; to Grant Donations to Actual Settlers Therein, and For Other Purposes, Chap. 103, Sec. 8, 10 Stat. 308 (1854).

[8] Archive No. 583 (Mss., Records of the A.N.M.).

[9] Archive No. 574 (Mss., Records of the A.N.M.).

[10] This instrument was a conveyance of the grant on September 5, 1812, by Eusebio Rael to Luis Maria Baca. Archive No. 583 (Mss., Records of the A. N. 14.). The claimants in an effort to explain this deed, asserted that Nerio Antonio Montoya died, sometime prior to 1812 and title to the grant passed to his two children, Nerio Antonio Montoya and Rosa Montoya Rael, whose husband was Eusebio Rael. Thus, the 1834 conveyance was from the son of the Nerio Antonio Montoya, who had acquired the grant by deed from Felipe Sandoval  in 1767.

[11] S. Exec. Doc. No. 63, 46th Cong., 3d Sess., 7071 (1881).

[12] The Ojo de Borrego Grant, No. 118 (Mss., Records of the S.G.N.M.).

[13] An Act to Establish the Office of Surveyor General of New Mexico, Kansas and Nebraska, to Grant Donations to Actual Settlers Therein, and For Other Purposes, Chap. 103, 10 Stat. 308 (1854).

[14] Court of Private Land Claims Act, Chap. 539, 26 Stat. 854 (1891).

[15] Baca v. United States, No. 95 (Mss., Records of the Ct. Pvt. L. Cl.).

[16] Baca v. United States, No. 195 (Mss., Records of the Ct. Pvt. L. Cl.)

[17] 2 Journal 72 (Mss., Records of the Ct. Pvt. L. Cl.).

[18] 2 Journal 242‑244 (Mss., Records of the Ct. Pvt. L. Cl.).

[19] Baca v. United States, 163 U.S. 676 (1895) (mem.).

[20] The Ojo de Borrego Grant, No. 118 (Mss., Records of the S.G.N.M.).