by J. J. Bowden
Pablo Montoya, a resident of the Pueblo de Cienega, petitioned the Territorial Deputation of New Mexico on November 8, 1824, seeking a grant covering a tract of vacant land situated on the Colorado River as a pasturage for his livestock. The requested tract was described as being bounded by the following natural objects:
On the north, by the Rincon de la Sinta; on the cast, by Mule Spring; on the south, by Trenchera; and on the west, by the Arroyo del Cuervo.
On the 19th of the same month, the Territorial Deputation transmitted the petition to the Governor for an immediate report as to whether or not there was any legal impediment to the issuance of the grant. On the same date, Governor Bartolome Baca reported that the primary cause for the decline of the livestock industry in New Mexico was the failure of the government to grant sufficient pasture lands to foster and encourage the expansion of that industry. He noted that the granting of vacant lands on the distant frontiers would not injure any person or community, but on the other hand, would afford a place of employment for the idle vagrants and serve as a buffer zone between the interior settlements and the hostile Indians. Therefore, he not only favorably recommended, but exhorted the Territorial Deputation to promptly issue the requested concession to Montoya. In response to Baca’s report, the Territorial Deputation on November 19, 1824, granted the premises to Montoya.[1] While there is no documentary evidence that legal possession formally had been delivered to Montoya, it is known that he promptly entered upon said land and, thereafter, continuously pastured livestock upon the grant until the time of his death in about 1842. Due to the hostility of the Indians, his heirs never attempted to occupy the grant.[2]
A petition seeking the confirmation of the grant was presented to the Surveyor General’s office by the heirs of Pablo Montoya on April 11, 1856. Surveyor General A. P. Wilbar under date of November 20, 1860, rendered a report to Congress wherein he recommended that the grant be confirmed to the petitioners. By an act approved March 3, 1869, Congress confirmed the Pablo Montoya Grant provided such confirmation was not to be construed as adversely affecting the rights of third persons or to include any military or other reservations of the United States.3]
Shortly after the passage of the confirmation Act, the owners requested that an official survey of the grant be made. However, the Commissioner of the General Land Office refused to order a survey unless the owners would consent to release their interest in all lands covered thereby in excess of eleven leagues. The owners promptly protested on the grounds that the commissioner had no authority to impose this condition which had the effect of modifying the Act of Confirmation. Recognizing the merits of the claimants’ protest, the Commissioner of the General Land office directed the Surveyor General to proceed with the surveying of the grant. In April and May, 1872, Deputy Surveyor John Lambert executed a survey of the Pablo Montoya Grant which showed that the grant contained 655,468.07 acres. It also disclosed that the grant conflicted with a withdrawal made in 1866 by the War Department for a military reservation to be named Fort Butler and also with the Baca Float No. 2. It was asserted that the Act of March 3, 1869 required the exclusion of these two tracts from the grant. However, in a decision dated April 13, 1877, Commissioner J. A. Williamson held that since the Act of June 21, 1860,[4] which authorized the heirs of Luis Maria Cabeza de Baca to locate the floats, permitted their location only upon vacant land. It stated that in view of the fact that the Pablo Montoya Grant was a valid grant and protected by the Treaty of Guadalupe Hidalgo, the Baca Float No. 2, insofar as it conflicted with the grant, was void, Continuing, Williamson held that since the government had never utilized the site selected for Fort Butler for military purposes and had in fact released the reservation on January 28, 1876, as being no longer needed for military purposes, that site was not a military reservation within the meaning of the confirmation act. Therefore, the Lambert survey was approved and a patent based thereon was issued to the heirs of Pablo Montoya on April 20, 1877.5]
For over ten years no one questioned the validity of the Pablo Montoya Grant as patented; however, George W. Julian, upon entering the office of Surveyor General, proceeded to re‑examine both the patented and unpatented cases acted upon by his predecessors. With an incessant drive, he sought to have the patents to most of the larger grants set aside and the Pablo Montoya Grant was no exception. On August 4, 1887, Julian recommended that suit be instituted to set aside the Pablo Montoya Grant on the grounds that it gave the patentees twice as much land as they were properly or legally entitled to receive under the grant and act of confirmation. He considered that the boundaries of the grant should have been drawn between the points named in the testimonio instead of through them. If Julian’s construction was adopted, the grant would be diamond shaped instead of parallelogram. On January 13, 1888, Acting Commissioner of the General Land Office, S. N. Stockslager, advised Julian that the facts presented did not warrant the institution of suit to set aside the patent since there was no evidence that the patentees had practiced fraud upon the government. He specifically called Julian’s attention to the fact that the court was disposed to cancel patents of long standing without clear evidence of wrong‑doing when the rights of innocent purchasers were involved.[6] Thus ended the last assault on the title to the Pablo Montoya Grant.
[1] Archive No. 618 (Mss., Records of the Museum of New Mexico, Santa Fe, New Mexico).
[2] H. R. Misc. Doc. No. 37, 35th Cong., 2d Sess., 26 (1861).
[3] An act to confirm certain private land claims in the Territory of New Mexico, Chap. 152, 15 Stat. 34.2 (1869).
[4] An act to confirm certain private land claims in the Territory of New Mexico, Chap. 167, 12 Stat. 71 (1860).
[5] The Pablo Montoya Grant, No. 41 (Mss., Records of the S.G.N.M.).
[6] Ibid. In State v. Red River Valley Co., 51 N.M. 207, 182 p. 2d 421 (1947), the, Supreme Court of New Mexico held that the State Game commissioner had the right to control fishing on the Conchos Reservoir since such reservoir was one of the public waters of the State. In commenting on the Pablo Montoya Grant, Justice Sadler, in his dissenting opinion, states, “It may be, and probably is, true that the territorial deputations of the Mexican Territory of New Mexico were without power to grant land during the years 1824 to 1828 … but that question was not, and could not be, raised in this case…”
Pablo Montoya Grant; J.J. Bowden's research on land grants.