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Ojo de San José Grant

by J. J. Bowden

Paulin Montoya, Marcus Toribio Gonzales, Bernabé Gallegos, Antonio Gallegos, Feliz Casados and Antonio Jose Casados petitioned Governor Pedro Fermín de Mendinueta asking for a grant covering a tract of vacant land situated on the Jemez slope surrounding the abandoned Pueblo of San Jose. The petitioners advised Mendinueta that they needed the grant in order to support their large families and growing herds of sheep, cattle, and horses. Mendinueta, on March 27, 1768, ordered Bartolomé Fernandez, Alcalde of the Queres Nation, to investigate and report to him concerning the advisability of making the requested concession. Fernandez examined the grant and, on July 13, 1768 reported that it contained a sufficient amount of tillable land to support five or six families, there was an adequate quantity of water available for irrigation, five of the six petitioners were well armed, and they could defend themselves and their animals against the hostile Indians. He also found that the granting of the tract would not prejudice the rights of the Jemez Indians or any other third party. After carefully considering the petition and report, Mendinueta, on September 16, 1768, granted the petitioners “a league of land on each course and four in circumference” upon the condition that they actively occupy the land within the time prescribed by law. He also directed Fernandez to place the six grantees in royal possession of the premises if, after advising the inhabitants of the Pueblo of Jemez of the grant, he encountered no opposition. In connection with the fixing of the boundaries of the grant, he instructed the alcalde to give the grantees the best land adaptable for the formation of a new town and distribute to each a sufficient quantity for a house, corrals and cultivation. The unallocated, lands within the grant were to be reserved for their descendants. Six days later Fernandez, his witnesses, the six grantees and the representatives of the Pueblo of Jemez met at the grant. After explaining the grant and the plans for its location to the Indians, they requested Fernandez to move it “back” 1800 varas so that a small valley located 2800 varas from the Pueblo of Jemez in which they had planted some fruit trees would be excluded from the grant. Fernandez granted the Indians’ request and finding no other objections to the concession, proceeded to place the six grantees in royal possession of the concession, which was described as containing a little more or less than four leagues, and as being bounded:

On the north, a black hill at which a spring of water appears; on the east, a large hill fronting towards the valley called the Baca Valley; on the south, the boundary of the Nerio Antonio Montoya Grant; and on the west, a small round mesa and small red hill fronting towards Jemez.

Next, he set aside the best portion of the grant as a town site and allotted each of the grantees a seventy‑vara square tract located adjacent to the plaza as a home site. A three hundred‑vara square tract was also allotted to each grantee as an individual farm tract. Since all of the tillable lands had been appropriated as a result of the allotment of the farm tracts, the balance of the grant was set aside as a commons to be used jointly by the grantees. For their protection the expediente was returned to the governor for fling amongst the archives.[1] The grantees and their descendants thereafter held actual open and undisputed possession of the premises.

On March 19, 1881 the heirs and legal representatives of the original grantees presented[2] the grant to Surveyor General Henry M. Atkinson for investigation under the Act of July 22, 1854.[3] However, for some unexplained reasons no action was taken on the claim by that office. Following the creation of the Court of Private Land claims, the claimants of the grant, were afforded the opportunity of instituting a suit in that forum to secure the recognition of their rights. Florencio Sandoval filed suit[4] on February 27, 1893 as an heir and legal representative of the original grantee. A second suit was filed[5] on March 2, 1893 by Jose Albino Baca. A third suit was filed[6] on the following day by Pedro Pena. The petitioners’ estimates of the size of the grant varied from 18,000 to 182,130 acres.

The Sandoval and Baca cases were consolidated[7] and set for trial on September 19, 1894. Since the grant papers were obviously genuine and the plaintiffs were able to connect themselves with the grantees, the government presented no special defenses. Therefore, the Court, by decision[8] dated September 29, 1894, confirmed the grant in accordance with the boundaries set forth in the Act of Possession. Justice William M. Murray wrote a dissenting opinion in which he pointed out that it was not the policy of the Spanish Government to part with legal title to the unallotted or common lands located within the boundaries of a grant to a town or community. Therefore, Section 13(1) of the Act of March 1, 1891[9] prohibited the confirmation of the grant insofar as it covered any unallocated lands since they had not been lawfully and regularly derived from the prior sovereign.[10] Since the court already had confirmed the grant, it rejected[11] Perea’s claim when it came up for trial on January 28, 1898.

Since neither of the decisions was appealed, a contract was awarded to Deputy Surveyor Norris T. Cavalier for the surveying of the grant pursuant to Section 10 of the Act of March 3, 1891.[12] His work depicted the grant as an approximately two league square tract containing 16,849.62 acres. It also indicated that a large portion of the west half of the grant conflicted with the Pueblo of Jemez and Canon de San Diego Grants.[13] Upon examining the survey, Surveyor General Quimby Vance hold that Cavalier had mistaken the Mesita Blanca for the “little round hill” called for as being the western boundary of the grant. Vance found that the little round hill was actually located near the eastern boundary of the Pueblo of Jemez Grant. As a result of this decision, he awarded a contract to Deputy Surveyor John H. Walker for the resurveying of the grant. After carefully studying the field notes contained in the Act of Possession and examining the area, Walker advised Vance that the Black Hill called for as the north boundary was located about fifteen miles north of the Ojo de Borrego Grant, which was the lands of Nerio Antonio Montoya, and that the large hill fronting towards the Baca Valley, which was near Pena Blanca, would be located some twelve miles east of the east line of the Canon de San Diego Grant. Based on these findings, he estimated that the grant would contain approximately 100,000 acres.[14] Needless to say, the discovery caused the government no little concern. It filed a motion seeking to amend the decision of September 19, 1894 in order to limit the size of the grant to an area of one square league to be located within the boundaries set forth in the Act of Possession. The government argued that the granting decree clearly indicated that the concession was for “one league of land on each course and four in circumference” and, therefore, was one of quantity and not one fixed by the exterior boundaries designated on the Act of Possession. The plaintiffs on the other hand, argued that the decree had become final and the court had no authority to modify it at that late date. By decision[15] dated December 20, 1893 the court found that the mistake was not one of law but of fact and, thus the court had ample power to grant the government’s motion. The plaintiffs appealed the decision to the United States Supreme Court, which dismissed[16] the appeal on March 19, 1900.

After the mandate from the Supreme Court had been returned to the Court of Private Land Claims’, the[17] court issued a decree on August 16, 1900 which described the grant as follows:

Beginning at the northeast corner of the Ojo de San Jose Grant as established by N. T. Cavalier in his survey made between June 30 and July 28, 1895 (rejected); thence south one league; thence east one league to the east line of said survey; and thence north one league to the point of beginning, exclusive of any part in the Canon de San Diego Grant.

Walker resurveyed the grant in September, 1901 and his work showed the one league tract described in the decree of August 16, 1900 contained 4,340.278 acres, of which 3.368 acres conflicted with the Canon de San Diego Grant. A patent covering the grant was issued on February 8, 1912.[18]

[1] Archive No. 584 (Mss., Records of the A.N.M.).

[2] The Ojo de San Jose Grant No. F-185 (Mss., Records of the S.G.N.M.).

[3] 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).

[4] Sandoval v. United States, No. 130 (Mss., Records of the Ct. Pvt. L. Cl.).

[5] Baca v. United States, No. 182 (Mss., Records of the ct! Pvt. L. Cl.).

[6] Perea v. United States, No. 259 (Mss., Records of the Ct. Pvt. L. Cl.).

[7] 2 Journal 207 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] 2 Journal 256 (Mss., Records of the Ct. Pvt. L. Cl.).

[9] Court of Private Land Claims Act, Chap. 539, Sec. 13(1), 26 Stat. 854 (1891).

[10] Sandoval v. United States, No. 130 (Mss., Records of the Ct. Pvt. L. Cl.). This principle was subsequently sustained by the United States Supreme Court in the case Rio Arriba Land & Cattle Company v. United States, 167 U.S. 298 (1897).

[11] 3 Journal 322 (Mss., Records of the Ct. Pvt. L. Cl.).

[12] Court of Private Land Claims Act, Chap. 539. Sec. 10, 26 Stat. 854 (1891).

[13] The Ojo de San Jose Grant, No. F‑135 (Mss., Records of the S.G.N.M.).

[14] Ibid.

[15] 4 Journal 72 (Mss., Records of the Ct. Pvt. L. Cl.).

[16] Sandoval v. United States, 20 S. Ct. 1027, 44 L. Ed. 1221 (1900) (rnem.).

[17] 4 Journal 212 (Mss., Records of the CL. Pvt. L. Cl.).

[18] The Ojo de San Jose Grant, No. F‑185 (Mss., Records of the S.G.N.M.).