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Ojo del Apache Grant

by J. J. Bowden

Ventura Trujillo, a resident of San Miguel del Vado, appeared before the Alcalde of that town, Damaiso Salazar, soliciting a grant covering a tract of farm land at Ojo del Apache in order that he might earn a living for his large family and pay tithes to the church. Finding the request to be fair and reasonable, Salazar, on July 2, 1842, granted Trujillo the requested tract, which he described as being bounded: 

On the north, by the Mesa; on the east, by the Mesa de los Chupaines; on the south, by the old road to los Chupaines; and on the west, by the hills bordering on the canoncito de Lagunita.

Trujillo promptly occupied and continuously used the grant until the Indians forced him to vacate the premises shortly before his death in 1855. On September 21, 1855, Trujillo’s widow and heirs sold the grant to Juan B. Lucero for twelve dollars. Lucero in turn hold peaceful possession of the grant up until March 24, 1866, when he sold it to John L. Taylor and Henry D. Gorham. Taylor subsequently acquired Gorham’s interest in the grant.

Taylor petitioned Surveyor General James K. Proudfit seeking the confirmation of the grant under the provisions of the eighth section of the Act: of July 22, 1854.[1] In his report dated December 19, 1872, Surveyor General Proudfit pointed out that the grant, which was large and containing not less than 2,500 acres, had been made by an Alcalde or Justice of the Peace, who, insofar as he was able to determine, had no authority under the Colonization Law of August 18, 1824,[2] and the Regulations of November 21, 1828,[3] to make grants from the public domain. Based on these findings, he had no alternative but to hold that the grant should not be confirmed by Congress.[4]

Confronted with this adversity, Taylor requested permission to present some newly discovered evidence which he hoped would satisfy Proudfit’s objection. By letter dated September 23, 1873, Proudfit advised Taylor that he would receive any additional evidence which Taylor might offer and would transmit it to Congress with such modifications in his former opinion as he deemed proper and just. On October 31, 1873, Rafael Aragon appeared before Proudfit and testified that he had been Salazar’s secretary in 1841 and that the grant, which in effect was an act of possession, had been made pursuant to an order by Governor Manuel Armijo which directed Salazar to place Trujillo in possession of the land which he had requested in a petition which he previously had submitted to Armijo. In response to this order, Salazar went to Ojo del Apache in company with Trujillo and placed him in possession of the grant by pointing out and designating the boundaries of the tract. Taylor also offered a deposition by Guadalupe Miranda, who had been Secretary of the Territory of New Mexico during Armijo’s administration. Miranda stated that he remembered that in 1841 or 1842 Trujillo had petitioned Armijo for a grant of land at Ojo del Apache, which was situated on the demarcation of San Miguel del Vado, and Armijo had granted the request and directed the Alcalde of San Miguel del Vado to deliver possession. He also recalled that sometime later the Alcalde made his “return,” and the expediente was placed in the archives which were under his charge. In conclusion he stated that he did not know if the expediente was still in the archives, but he had been informed that a portion thereof had been lost or destroyed. However, he remembered that the grant papers were “full and complete and the grant perfect according to the laws of Mexico.”[5]

After receiving this additional testimony, Surveyor General Proudfit wrote a Supplemental Report dated February 7, 1974 in which he stated that the evidence tended to show that Armijo had made a grant to Trujillo but noted that it was based solely on the witness’ memory. For various reasons, he declined to make a change in his original recommendation and decided to merely transmit this new data to Congress for its consideration along with the rest of the record.[6]

The claim was one of many awaiting Congress’ pleasure when the Court of Private Land Claims was established. On February 17, 1893, the then owner of the grant, May Hays, filed suit[7] against the United States in the Court of Private Land Claims seeking the recognition of his title to the Ojo del Apache Grant, which he alleged covered eleven square leagues or 47,743 acres of land.[8] The case came up for hearing on November 13, 1896 and both parties introduced a substantial amount of evidence. However, no surprising new theories or arguments were advanced by either side. The case turned upon the construction to be given to the original muniments of title. The Government contended that the grant papers showed conclusively that the concession had been made by Alcalde Salazar acting on his own authority and thereby abrogating unto himself the prerogatives of the departmental officials to make grants of the public domain.

The plaintiff, on the other hand, contended that the expression contained in the proceedings before Alcalde Salazar, “in conformity with the supreme decrees” had reference to the grant made by Governor Armijo, which was described in Miranda’s deposition and Aragon’s testimony before the Surveyor General. On November 23, 1896 the Court delivered its opinion which rejected the claim on the grounds that it was an attempt by an Alcalde to make a grant and that an Alcalde had no authority under Mexican Law to make donations from the public domain.[9]

Hays appealed the decision to the United States Supreme Court, which in commenting upon the meager documentary evidence pertaining to the grant stated:

Upon the whole, we think it extremely improbable that, if a grant had been made by the governor, no reference whatever should have been made to it by the alcalde, who, upon the theory of the petitioner, was acting merely as the right hand of the governor in putting Trujillo into possession. The document is not in the usual form of a return to an order of a governor to put a grantee into juridical possession of the land, of which the reports and records of this court show many examples, but of an attempt by an alcalde to make a grant himself upon the petition of an applicant. But if tile governor had already made the grant why should the alcalde undertake to make one, or state the reasons why in his opinion it should be made? 

He does not pretend to be acting pursuant to a decree of the governor, and makes no mention of a delivery of juridical possession by going upon the premises with the petitioner, pointing out the boundaries, plucking grass, or throwing stones, taking the grantee by the hand and leading him over the lands, or any of the formalities which, under the Spanish and Mexican customs, were observed by the officer delivering possession. The document is such as one as the governor might have been expected to execute, but by no means such as to show that the alcalde intended to deliver juridical possession. In short, he assumed to do that which he had no right to do, and carefully omitted to do that for which he had complete legal authority. . . 

In the view we have taken in this case, it becomes unnecessary to consider whether Governor Armijo had power or authority to make a grant of public land without the assent of the territorial deputation or departmental assembly. The judgment of the Court below must therefore be affirmed.[10]

Thus were concluded the futile efforts to obtain recognition of a grant covering a very valuable tract of land which had been continuously occupied and used by its claimant for more than a half a century. 

[1] An Act to establish the offices 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).

[2] Reynolds, Spanish and Mexican Land Laws 121-122 (1895).

[3] Ibid.,141‑143.

[4] S. Exec. Doc. No. 45, 42d Cong., 3d Sess., 10‑20 (1873).

[5] S. Exec. Doc. No. 35, 43d Cong., 1st Sess., 1‑6 (1874).

[6] Ojo del Apache Grant, No. 72 (Mss., Records of the S.G.N.M.).

[7] Hays v. United States, No. 101 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] It has been estimated that the grant covered approximately 28,000 acres of land. The petitioner apparently made this allegation in order to come within the eleven league limitation imposed by the Colonization Laws of Mexico.

[9] 3 Journal 136 (Mss., Records of the Ct. Pvt. L. Cl.).

[10] Hays v United States, 175 U.S. 248 (1899).