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Ojo de la Cabra Grant
by J. J. Bowden
Juan Otero, a resident of the Town of Valencia, petitioned Francisco Sarracino, Prefect of the Third District of New Mexico, on January 22, 1845, and requested a grant covering a tract of vacant land located within an area two leagues on each of the cardinal directions of the Ojo de La Cabra. He stated that he needed the land as a pasture for the support and maintenance of his small herds of cattle and horses. He pointed out that, at considerable personal expense, he had successfully developed the spring from a “small ooze,” and it would he unjust to deprive him of the fruits of his labors by failing to grant his request. Sarracino referred the petition to the Alcalde, Judge of the First Instance, and Ayuntamiento of the Town of Valencia, under whose jurisdiction the requested tract was located, and asked them to give him their written recommendations concerning the desirability of granting Otero’s request. In response thereto, the Ayuntamiento, on March 2, 1845, reported that the lands belonged to no one, and it knew of no obstacle to the issuance of the concession; however, in order to conserve the public domain for others making similar applications in the future, it recommended that “one league only and not two” be given to Otero. Based on those findings, Sarracino six days later forwarded the petition to Governor Mariano Martinez for his further action. Martinez, who was in serious political difficulty, referred the petition to the Departmental Assembly without comment. The assembly considered the matter on March 15, 1845, and granted Otero the “square league of which the report of the respectable corporation of Valencia tracts.” The grant was made under authority of Article 134, Division 5, of the Bases Organcias. The grant closed with the statement that the papers should be transmitted to Martinez “that in continuation of the same there be added to the proceedings which may be had to legalize the possession. . .” The assembly ordered that the expediente of the proceedings should be filed in the Secretary’s office of the assembly, and a copy forwarded to the grantee as evidence of his title. The final instrument comprising the grant papers was a decree signed by Sarracino dated March 18, 1845, which stated:
‘‘Complying with the foregoing superior decree and official letter of transmittal of his Excellency the Governor, let this petition be transmitted to the Justice of the First Instance, Vicente Otero that he may proceed to execute the real and personal possession which by the Honorable Assembly has been conceded to Jean Otero upon the aforesaid load, giving and granting to him in fee simple the water which, at his own expense, he has caused to flow, which possession shall be executed by said Justice …”
The decree closed with instructions ordering the Justice to return the expediente of the Act of Possession to his office, in order that he could give it the ‘corresponding course.”
The heirs and legal representatives of Juan Otero petitioned Surveyor General James K. Proudfit on January 29, 1875, seeking the confirmation of the grant. In connection with his examination of the claim, Proudfit took the testimony of Augustin Gallego, who had worked for Otero on the grant between 1842 and 1844. Gallego stated that the tract known as Ojo de la Cabra had been owned by Juan Otero prior to his death, and since then by his heirs. He also stated that the tract had been used by its owners as a pasture for their stock. In connection with the question of improvements, he stated that Otero had built a stone dwelling house at the spring for his herders, three large corrals at different locations on the grant, and planted many shade trees. He also described how Otero had improved the flow of the spring and dammed up the water for use by his stock. Nepomncuno Zamora, who was also one of Otero’s peons, offered similar testimony. He stated that Otero had as many as two hundred horses and mules and five hundred head of cattle on the rancho By decision dated July 13, 1875 Proudfit found that the grant papers, which were on file in the Archives, were genuine and, notwithstanding the lack of an Act of Possession, the grant appeared to he perfect. Therefore, he recommended the confirmation of the grant to the extent of one square league of land, with the spring at its center. A preliminary survey of the grant was made in March, 1878 by Deputy Surveyor Robert T. Marmon for 4,340.54 acres. 
Since the claim had not been acted upon by Congress, it was reexamined by Surveyor General George W. Julian, pursuant to the instructions he received from Commissioner William A. 1. Sparks. Julian, in a Supplemental Report dated June 22, 1886, recommended the rejection of the claim on the ground that the Supreme Court, in the Vigil case, had held that the only laws in force in New Mexico in 1845 for disposing of public lands were the Colonization Law of August 18, 1824 and the Regulations of November 21, 1828, and that under such law and regulations the governor alone had the power to make grants, and concessions made by the Departmental Assembly independent of the governor were void. Continuing, he stated that there was a second reason why the claim was invalid. He pointed out that the grant papers did not contain an Act of Possession, and there was no showing that Otero had been placed in possession of the grant. Therefore, he contended that the grant had no legal standing, for, under the Supreme Courts decision in the Van Reynegan case, a formal delivery of possession to the grantee was essential to the complete investiture of title.
Since Congress had not acted upon the claim, Mariano S. Otero, who claimed an interest in the grant by inheritance and purchase, filed suit on March 2, 1893 against the United States in the Court of Private Land Claims, which, in the meantime, had been created by Congress and given authority to adjudicate the validity of Spanish and Mexican land grants in the Southwest. Otero alleged that the grant was complete and portent, and that no one was in possession of, or claimed an interest in, the land adverse to his title, except the Isleta Indians, whose confirmed pueblo grant conflicted with the Ojo de la Cabra Grant. However, he concluded that the Pueblo of Isleta Grant had been erroneously surveyed and patented insofar as it covered his lands. In support of this contention, he filed a Spanish document which showed that shortly after the making of the Ojo de la Cabra Grant, the Isleta Indians protested the grant on the ground that they had owned the spring and surrounding pasture lands since time immemorial; the lands in question were not vacant; the grant had been obtained by fraud; and requested Governor Martinez to present their grievance to the Departmental Assembly.
The assembly thereupon ordered Sarracino to report upon the matter. On May 15, 1845 Sarracino reported that the spring was:
… beyond the league of the Town of Isleta; it is distant one league, more or less, to the east; that the land does not belong to any town; that it is vacant land; that the spring is so extremely small that for the greater part of the year it does not hold sufficient water for a single animal; that it has been considered as communal property of Valencia, Isleta, Padillas and Pajarito, but also has been used by everyone who desired to make use of it.…
The matter came up before the assembly on June 26, 1845, at which time it decided that Sarracino’s first report had been deceitful, since his second report showed that the spring was the “communal property of the complaining town and even others mentioned in said report.” Therefore, the assembly annulled the concession, instructed Otero to return the grant papers, and ordered Sarracino punished for having fraudulently reported upon the status of the land. This decree was approved by the governor on July 17, 1845. Otero appealed the decision to the Supreme Court in Mexico City, which referred the matter to the Superior Court at Chihuahua. No further action appears to have been taken on the appeal. The government filed an answer, putting in issue generally the allegations set forth in Otero’s petition, denying the authority of the Departmental Assembly to make the grant, and asserting that even if a valid grant had been made, it had been revoked and annulled by competent authority. The Indians of Isleta appeared by counsel and joined in the government’s defense.
The case came up for trial on November 23, 1896, at which time the plaintiff offered in evidence the grant papers and oral evidence tending to connect himself to the original grantee. Otero’s witnesses also testified that Juan Otero had settled upon the grant, but the Isleta Indians had driven him off the grant; however, he continued to pasture his livestock on the land. The defendants offered Archives Nos. 1381 and 1382 and extracts from the Journal of the Departmental Assembly in an effort to show that the grant had not been made by the proper authority and had been lawfully revoked. In an effort to answer the defendants’ arguments, Otero contended that the grant was made by the concurrent action of the governor and Departmental Assembly, and thus constituted a prefect and complete grant under the Colonization Law of August 10, 1824 and Regulations of November 21, 1828, and that being so it was not within the power of the assembly and governor to revoke the concession.
The court, by majority decision dated November 30, 1896, adopted the conclusions of the government and rejected the grant. Justice Henry C. Sluss dissented on the ground that the law required the governor to secure the concurrence of the assembly to any grant he might make. Therefore, since the grant papers showed that the petition had been forwarded to the governor, there was a prima facie presumption that he had granted the land to Otero and that the action taken by the assembly merely amounted to its concurrence. Flowing to the next point, he stated that he found no provision in the Spanish and Mexican Law which would permit the governor, the Departmental Assembly or the two acting concurrently to revoke a perfect and complete grant. In support of this position, Sluss cited the Reading case which held that it was the governor’s duty, if a grant was rejected by the assembly, to forward the documents of title to the Supreme Government for its decision. Otero appealed the decision to the United States Supreme Court. However, the appeal was dismissed at his request on January 18, 1899.
 Martinez was removed as Governor in May, 1845. 1 Coan, History of New Mexico, 323 (1925).
 The Central Government fell from power in 1841, and on June 23, 1843 the Mexican Congress was dissolved and a council was called to draw up a new fundamental law. The council promulgated the Bases Organcias which created a constitutional government controlled by the President. Ibid., 322. Subdivision 5 of Article 134 of the Bases Organcias granted the Departmental Assemblies power “to decree what is convenient and in harmony with the laws with respect to the acquisition, alienation and exchange of the property that may belong to the community of the Department. As to the alienation of lends, the existing laws and what the colonization laws provide shall be observed.” Reynolds, Spanish and Mexican Land Laws, 244 (1895).
 Archive No. 676 (Mss., Records of the A.N.M.).
 The Ojo de la Cabra Grant, No. 106 (Mss. Records of the S.G.N.M.).
 S. Exec. Dec. No. 113, 40th Cong., 2d Sess., 2 (1887).
 Exec. Doc. No. 19, 50th Cong., 1st Sess., 2‑3 (1887).
 United States v. Vigil, 13 Wall. (80 U.S.) 449 (1887).
 Reynolds, Spanish and Mexican Land Laws 121 (1895).
 Ibid., 141.
 Van Reynegan v. Bolton, 5 Otto. (95 U.S.) 33 (1877).
 Otero v. United States, No. 167 (Mss., Records of the Ct. Pvt. L. Cl.).
 Archive No. 1381 (Mss., Records of the A.N.M.).
 Archive No. 1383 (Mss., Records of the A.N.M.).
 Archive No. 1382 (Mss., Records of the A.N.M.). This document consisted of a number of reports made by committees of the Departmental Assembly. One of these reports contained an opinion by Otero’s attorney, Manuel Muños, wherein he contended that the assembly could not legally revoke the grant. In answer to this, the committee on September 28, 1845 found that the grant had not been made by the governor but by the assembly. It pointed out that the governor alone had the power to grant land. The report closed with a recommendation that Otero should present a new petition to that officer praying for a grant of the land in question. There is a later report wherein a committee of the Departmental Assembly recommended that the spring should not be granted to anyone but should remain as a commons for the settlements of Isleta, Valencia, Padillas and Pajarito, as it had been from time immemorial.
 Reynolds, Spanish and Mexican Land Laws 121 (1895).
 Ibid., 141.
 3 Journal 147 (Mss., Records of the Ct. Pvt. L. Cl.).
 United States v. Reading, 18 How. (59 U.S.) 1 (1856).
 Otero v. United States, 19 S. Ct. 879, 43 L. 1178 (1899) (mem.).