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Orejas de Llano de los Aguajes Grant

by J. J. Bowden

Smith H. Simpson, “for himself and other claimants,” petitioned[1] Surveyor General Henry M. Atkinson on September 25, 1877, seeking the confirmation of the Orejas del Llano de los Aguajes Grant. In support of the claim, he filed a testimonio which showed that the following proceedings were had in connection with the grant. On April 4, 1826, Juan de Jesus Lucero appeared before Francisco Vigil, the Alcalde of Abiquiu, and requested him to forward his petition for a grant covering the tract of land known as the Orejas del Llano de los Aguajes to Governor Antonio Narbona. In his petition, Lucero designated the following natural objects as the boundaries of the requested tract: 

On the north, the Cerro de Chirisco and the Rio Grande; on the east, the Rio Grande with all of its banks on the westside; on the south, Los Orejas, Cerrito Huerfano, and the Aguajes to the boundary of the Petaca Grant north of the Tetilla; and on the west; Cerro Montosos of the Aguajes de la Cueva.

 Vigil forwarded the petition to Narbona five days later with the notation that he knew the request was just. On July 28; 1826, the governor ordered Vigil to:

... examine he land and observe that which is ordered relating to said donation in grant according to the boundaries they apply for, and you will place them in possession of the land as it is commanded.

This decree was executed by “A. Narbona.” Vigil, in compliance with the governor’s order proceeded to the grant on September 9, 1826 and placed them in legal possession of the grant according to the boundaries they applied for as a place “for rearing animals,” subject to the customary duties and conditions “and without prejudice to the royal treasury nor of any third party.” The Act of Possession closes with the statement:

In testimony whereof, I sign the same acting as special justice on this common paper for lack of the sealed paper in this jurisdiction of my command and also in lack of a royal notary, there being none in this jurisdiction of Santa Fe, now jurisdiction of Abiquiu, N. M. and this I sign with my attending witnesses, with whom I act and do act to which I certify.

These proceedings were reviewed and approved by Narbona on September 21, 1826. The decree recited that it made on common paper since there was no sealed paper “in this Department nor any royal notary...” It also was signed by “A. Narbona.”

Atkinson received oral evidence pertaining to the grant from time to time between September 25, 1877, and January 19, 1878. Five witnesses were heard. This testimony showed that Lucero and his family had promptly moved to the grant and built a stone house near the confluence of the Arroyo Aguaji with the Rio Grande. It also showed that Lucero had pastured livestock upon the grant up to the time of his death in 1837 or 1838. Lucero was killed by Paiutes while on a commercial trip to California. Thereafter, Geronimo Gallego managed the ranch for Lucero’s widow until her death in 1874. Deeds were also filed showing that Smith H. Simpson and William A. Kittridge had purchased the grant on September 14, 1877 from Nemisio Lucero, the son and only heir of Juan de Jesus Lucero.[2]

In an unfavorable decision[3] dated March 31, 1879, Surveyor General Atkinson rejected the claim. He found that the several instruments comprising the testimonio had been written by the same person and a different colored or shade of ink was used in each instrument. Upon comparing the signatures of Narbona on the muniments of title, with his signature on other documents in the Archives of New Mexico, Atkinson noticed that the signatures in question had the appearance of having been traced for they were made with a slow and painstaking motion and trembling hand. Atkinson also noted that the expression contained, in the Act of Possession, “I gave him possession and without prejudice to the royal treasury” and recitation in the governor’s decree approving the proceedings “nor any royal notary” were not consistent with a grant from the republican government which was in existence in Mexico at the time of the alleged grant. He also pointed out that several erasures and suspicious alterations appeared to have been made in certain expressions in the testimonio. For instance, the word “seis” and the figures “18” in 1826 in the petition had been written over some other word or figures which previously had been erased. He also expressed concern over the fact that during the hearing of the case “another set of alleged grant documents was discovered covering the same tract and which was admitted to be forgeries, but it is insisted that these papers are genuine.” As a final lampoon, Atkinson stated:

[Jose Vivian] Montoya swears that Lucero left one [Geronimo] Gallegos in charge of his stock and land when he started for California in 1838, although there was a son [Nemesio Lucero] living at the time who does not appear to have interest enough there to demand his attention as the evidence shows that he moved to Colorado in 1840 and remained there since. Nineteen years elapsed after Lucero’s death before [Refugio] Sanchez who claimed to have taken the title papers from the effects of Lucero when he was killed before he gave them to Pablo Jaramillo to deliver to Sanchez’s son who had no apparent. interest in the grant. Jaramillo held possession of the document from the date of his return from California in 1857 ‘til he delivered them to Simpson in 1875. For a document that had been carried to and from California and had been handled for so long a period, it is remarkably well preserved and free from wrinkles, folds, wear and is also very clean. Were the grant a good and valid one, the same would be limited to eleven square leagues but from all the circumstance in the case and the appearance of the document, I am firmly of the opinion that the alleged muniments of title are forgeries.

On June 22, 1880, over a year after the issuance of Atkinson’s adverse decree, Simpson requested Atkinson to re‑open the investigation in order to permit him to offer certain new and important evidence to establish the genuineness of the grant. Atkinson, over the protest of the United States’ attorney, in a decision[4] dated June 30, 1880, granted the request in order to permit the claimants “the fullest opportunity to produce testimony in support of their claim.” In answer to the government’s contention that he did not have the power or authority to reopen the case, Atkinson. pointed out that, while his decision had been forwarded to the General Land Office, the transcript had not been transmitted to Congress. He contended that as long as the claim was pending in the Department, he had authority to reverse or review his decision. Therefore, he ordered the suspension of the opinion he had rendered on March 31, 1879, and granted the claimants a period of ninety days to take depositions. The government was given sixty days thereafter to offer rebuttal evidence. Pursuant to this decree, the claimants proceeded to take Nemesio Lucero’s deposition on the 16th and 17th of December, 1880. Little, if any, new or important evidence was adduced thereby. Lucero merely reiterated the oral testimony which previously had been given the claimants’ witnesses to the effect that the grant papers were valid and the grant had been occupied as a ranch by Lucero continuously up until the time of his death, and thereafter, by his mother through her agent, Geronimo Gallegos. However, the government, on March 17, 1881, offered a considerable amount of new and damaging evidence. Anthony Joseph, a merchant from Taos and candidate for the United States House of Representatives, testified that in 1875, Jesus Maria Gomez y Lopez had offered to sell him a Spanish document which purported to be the testimonio to the Orejas del Llano de los Aguajes Grant. Upon examining the document, he noted that it was:

Somewhat irregular in one very particular point ‑ that the act of concession by the Mexican Government was dated 1818 ‑ that time being previous to the Independence of Mexico. Consequently, I returned the paper and refused to have anything to de with it. A few days after I returned the papers to this man Gomez, he posted a notice in front of my store at Fernando de Taos representing in said notice he had lost said papers and offering a reward. A day or two later Gomez left town, and about the time he disappeared, a man by the name of Eduvigen Miera came to me with the same paper for which Gomez offered the reward and offered to sell the same. I told him the papers were valueless to him but might be of some importance to the claimant or the man who offered the reward.

Joseph also testified that he had heard that Gomez was then in the Mesilla jail awaiting trial on a charge of grant forgery.

No further action was taken in connection with the grant until September 26, 1884, when Surveyor General Clarence Pullen issued a notice to all interested parties that the time for presenting testimony in the case would expire on November 4, 1884. Since no further evidence was presented, Pullen proceeded to examine the merits of the claim. After carefully considering all evidence presented by both parties and comparing the signatures on the grant papers with Narbona’s signature on some eighty other documents in the Archives, Pullen found the signatures on the grant papers were noticeably different from all those known to be genuine. He also noted that while the governor had signed numerous documents with his full name, “Antonio Narbona”, or with the abbreviation “Ant° Narbona” or in a number of cases just “Narbona”, there was not a single instance where a document in the archives had been signed “A. Narbona”. He also called attention to the fact that the governor’s rubric on the grant papers was different from the ones affixed to documents in the archives. Therefore, in decision dated January 30, 1885,[5] Pullen affirmed Atkinson’s previous decision and rejected the claim on the grounds that the title papers were forgeries.

On the next to the last day on which their claim could be filed under the Act of March 3, 1891,[6] Smith H. Simpson and Alice Kittridge, the daughter and heir of William A. Kittridge, deceased, filed suit[7] against the United States in the Court of Private Land Claims seeking the confirmation of the alleged 150,000 acre grant. The government filed an answer in which it denied that the grant had been signed by the governor or by anyone acting on his behalf or under his authority. Upon the trial of the case the plaintiffs presented the alleged testimonio which the Court received in evidence over the objections of the government. The plaintiffs also introduced the other evidence taken during the investigations conducted by Atkinson and Pullen. After the plaintiffs rested, the government offered the testimony of four witnesses. The first was a ninety year old neighbor of Juan de Jesus Lucero, the second was Lucero’s nephew, and the third was Lucero’s adopted son. These three witnesses testified Lucero was a poor man and always lived at the town of El Rito, he never lived on the grant, and he never owned any livestock. The fourth witness was Will Tipton, who qualified as a land grant expert and gave a great deal of impressive testimony supporting the government’s contention that the testimonio was a forgery. He also called attention to a number of additional suspicious recitations in that document. For instance he pointed out that in the governor’s decree of July 28, 1826, the Alcalde was directed to place them in possession of the land according to the boundaries they applied for, while Lucero was the only applicant. He noted several other instances where plural verbs and pronouns had been changed to the singular. In connection with the recitation in the governor’s final decree, that the instrument was written on common paper because there was not sealed paper “in this Department,” he pointed out that in 1826, New Mexico was a territory and did not became a Department until 1836. He also asserted that the abbreviation, “N.M.” in the Act of Possession was of American origin and not known or used in New Mexico in 1826. Next he went into a lengthy discussion of his study pertaining to validity of the governor’s signatures in the testimonio. This discussion conclusively demonstrates that Narbona did not sign the grant papers and that the entire document had been written by one person, who was comparatively unacquainted with the Spanish language, and at a date long subsequent to 1826. During its argument of the case, the government contended that independent of all the questions concerning the genuineness of the grant papers, it could not be confirmed since the governor of New Mexico had no authority to make a valid grant covering public lands in 1826. In support of this argument, the government cited the United States Supreme Court’s decision rejecting the Arroyo San Lorenzo Grant,[8] on the grounds that the governor had no authority to dispose of public lands in New Mexico between the enactment of the Colonization Law of 1824[9] and the promulgation of the Regulations of 1828.[10] On November 30, 1896, the court announced its opinion[11] rejecting the claim on the grounds that the governor of the Territory of New Mexico had no authority to make a valid grant of national lands in 1826. Therefore, the court held it was not necessary for it to pass upon the genuineness of the plaintiffs’ muniments of title.

[1] The Orejas del Llano de los Aguajes Grant, No. 117 (Mss., Records of the S.G.N.M.).

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

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

[7] Simpson v. United States, No. 169 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] Hayes v. United States, 170 U.S. 637 (1898).

[9] Reynolds, Spanish and Mexican Land Laws, 121 (1895).

[10] Ibid.

[11] 3 Journal 157 (Mss., Records of the Ct. Pvt. L. Cl.).