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Para Nada! War (and Litigation) Over the Baca and Sandoval Land Grants
By Mark Thompson*
Would litigating four cases over land in New Mexico, two ending with appeals to the New Mexico Supreme Court, another two ending with appeals to the United States Supreme Court, be worth the expense of lawyers and other costs? Maybe. What if the land contained almost 50,000 acres ideal for grazing cattle and with two significant sources of water?  Probably. What if in the end no claimant ended up with anything? Maybe not! What if two people were killed, two others wounded one seriously, when action other than litigation resulted from the conflict? Really? What if you then added the costs of defending against a murder prosecution? I give up. It sounds like it was all “in vain.” Para nada!
In 1819, just two years before losing sovereignty over New Mexico, the Spanish government attempted to reward Captain Bartolome Baca of Tome with a grant of land on the east side of the Manzano Mountains in Valencia County. Although never surveyed, it was estimated to cover from 500,000 to 1,500,000 acres, literally and figuratively about two-thirds of present day Torrance County. Before his death in 1834, Baca may not have used much more than a portion on the eastern edge of the grant, near where he had constructed a “tower,” resulting in the name still used for the community nearby, Torreon.
In 1845, less than a year before the beginning of the military occupation of New Mexico by the United States, approximately 415,000 acres within the Baca grant was granted to Antonio Sandoval by the Mexican government. This grant contained two sources of water, artesian springs, Ojo de Estancia and Ojo de Verrendo. Estancia Springs, the larger of the two, located at modern day Estancia, New Mexico, was on the south edge of the Sandoval grant. Antelope (Verrendo or Berrendo) Springs, was to the north of Estancia, and today can be found, at least by a trained hydrologist, at the southwest corner of Marshall Road and New Mexico State Highway 41, south of Moriarity, New Mexico. Both Estancia and Ojo del Verrendo were significant enough to be included in the 1779 map by Don Bernardo de Miera y Pacheco. The Sandoval grant eventually becomes known as the “Estancia Grant.”
In 1854, the United States Congress, recognizing some obligation under the Treaty of Guadalupe Hidalgo, 1848, established the (federal) office of the Surveyor-General of New Mexico. Section Eight of the act provided that the surveyor would “ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico . . .” The underlying assumption of Congress was that some grants had not been “completed” before 1848 and, until proven otherwise, the land claimed by private individuals was owned by the United States. Although the provision was subject to legal argument, the act also provided that the work of the Surveyor-General was “ministerial” and he could only issue a report with his conclusions to Congress, which would issue the final approval or rejection of a grant. Following the assumption described above, the act specifically provided that the land was “reserved” from sale or other disposal by the government after surveyor action and until Congress took action.
The successors to Sandoval filed a request with the Surveyor-General in 1855 and on 4 January 1873, it was “approved” by the surveyor in the amount of 415,036.15 acres. The Baca grant remained in the hands of his heirs after his death in 1834 until purchased by Manuel Antonio Otero in 1874. An application was filed with the surveyor by Otero in 1878 but the validity of the grant was rejected in 1881. In the interim, in 1880, Joel Parker Whitney of Rocklin, California, and sometimes of Boston, Massachusetts, purchased the Sandoval Grant, and then conveyed an undivided one-half to Franklin H. Story. Although the rejection of the Baca Grant by the surveyor gave Whitney and his partner a “leg up” on any claim for the property, Congress had not acted upon the “approval” of the Sandoval grant by 1882. In fact, Congress seemed to have become bogged down with private land grant cases, only confirming one approval between 1 July 1870, and 1882.
Unlike Baca, who may never have made any significant use of the property, Otero grazed cattle on a considerable portion and created a ranch headquarters at Estancia Springs, sometime after 1874. Manuel A. Otero died 27 February 1882 and his son, Manuel B. Otero took control of the ranch. Whitney by 1882 had made no significant use of the Estancia grant but he and Story, were apparently just the “financers” with a deal providing that the land would be worked by the New Mexico Land & Cattle Co., a corporation headed by Texan J.A. Stinson. But before cattle could be moved from Texas to New Mexico, Whitney and Story, as the title holders, had to deal with not only the Oteros at Estancia Springs but also Robert McAfee who was claiming a federal homestead right of 160 acres, including Antelope Springs.
There is unanimity among secondary sources that Whitney brought separate ejectment actions against Otero and McAfee, even suggesting that the case against Otero was set for trial in November 1883. I could not confirm that suggestion and it is not completely consistent with the history of the litigation. It is possible that there was confusion caused by an action brought by Whitney against Jose Maria Chaves y Garcia. Chaves claimed a right of possession granted by Otero to some portion of the Baca grant and therefore defended Otero’s title. The case was not finally decided until 1888 and the New Mexico Supreme Court opinion does not mention any separate, prior action against Otero. In any event, a judgment ejecting McAfee from Antelope Springs was affirmed by the New Mexico Supreme Court on 20 July 1883, the court simply applying the Surveyor-General law that provided that McAfee could not enter the land under the homestead law because the land was “reserved” until Congress acted on the surveyor’s recommendation of approval of the Sandoval grant.
With the McAfee decision in hand, Joel Whitney instructed his younger brother, James G. Whitney, to proceed to Antelope Springs, pay McAfee for his improvements to the land and take possession. Possibly contrary to his brother’s instructions, James Whitney, his brother-in-law Alexander Fernandez and their companions end up in Estancia Springs on 17 August 1883. Manuel B. Otero with his brother-in-law, Dr. Edward C. Henriquez, and several cowboys showed up and eventually a gun battle took place. Fernandez and Otero were killed; Dr. Henriquez and Whitney were wounded, the latter surviving life threatening wounds but ending up with a permanent disability. It is doubtful that a purely “objective” telling of the story can be found.
There is no question, however, that Whitney was charged with Otero's murder and that his brother hired prominent attorneys, including Valencia County political powerhouse, J. Francisco Chaves, whose long deceased older sister was Manuel A. Otero's first wife. The lawyers convinced Judge Bell to change the venue from Valencia County to Colfax County, a move absolutely necessary from the defense point of view given the prominence of the Otero family in Valencia County. The trial opened in Springer, New Mexico on 29 April 1884, and finished the next day with an acquittal Whitney had originally claimed that Fernandez and Otero had killed each other, and no one was ever charged with the Fernandez killing, but most accounts referred to “self-defense.” In any event, the Morning Journal opined that the acquittal was no surprise given the sympathies of the Las Vegas Optic, the largest newspaper close to Springer. The change of venue had paid off for the defense!
Not that everyone thought that justice was done; Governor Otero in his memoir said that the judge was bribed. It is understandable that the death of the twenty-four year old Manuel B. Otero, a young man who had studied in Germany, spoke three languages, and had a promising future would be mourned by many. His family, including that of his father’s brother, Miguel, was responsible for a great deal of the development of New Mexico during the territorial period. Manuel B. also married well; his wife was Eloisa Luna, the sister of Tranquilino and Solomon, prominent politicians of Los Lunas, i.e., “The Luna Brothers.” Two of their children played important roles in early statehood days. Maria Adelina Emelia, better known as “Nina,” was the unsuccessful Republican candidate for Congress in 1922 and Manuel B. (Jr.), born one month after Manuel B.’s death in 1883, was the unsuccessful Republican candidate for governor in 1924. As we shall see, Eloisa (Luna) Otero would have her own part to play in the land grant controversy.
The accounts of the story written from the point of view of New Mexico also take pains to portray the Whitney camp as the Boston Brahmins taking advantage of New Mexicans. It is correct that Joel Parker Whitney was born in Gardner, Massachusetts, 55 miles northwest of Boston and that he maintained some business ties to Boston. By 1883 he was wealthy, but he made his money mining gold in California and silver in Colorado, and then in sheep ranching after acquiring his father’s ranch near Sacramento. His father, George Whitney, born in Massachusetts in 1801, can be traced through census records from the late 1840s in Louisiana, where his son James was born, to Illinois in the 1850s, birthplace of son Edward, to Placer County, California in 1860, and finally to San Francisco, in 1880. Let us not forget Alejandro Fernandez, killed at about age thirty at Estancia Springs. Fernandez, the brother of Octavia (Fernandez) Whitney, wife of James G., was an immigrant, born in New Granada, the South American province eventually divided into Ecuador, Columbia, and Venezuela.
Life goes on, and in this case, thanks to the United States Congress, so does the litigation. In 1886, the widow Eloisa (Luna) Otero married the English/Italian immigrant, Alfred Maurice Bergere and they eventually began a new life in Santa Fe. That same year, a new Surveyor-General for New Mexico reexamined the Sandoval/Estancia grant and reversed the 1873 “decision,” recommending to Congress that the grant be rejected. Congress, of course, had taken no action on the 1873 recommendation of the surveyor and all such work by Congress may not have progressed beyond what was reported in 1882. Congress instead decided to give everyone a “second bite at the apple,” quite literally because the apple, i.e., a private land grant, if established, could only be approved in the maximum amount of 48,708 acres. The vehicle it created in 1891 was the Court of Private Land Claims where grants which “have not been confirmed by act of Congress or otherwise finally decided upon by lawful authority” could be presented to the new court.
The Baca grant claimants, including both the Manuel B. and Miguel A. Otero heirs, were first in line and were represented by the most famous land grant lawyer in New Mexico, Thomas B. Catron of Santa Fe. The Court of Private Land Claims denied the validity of the Baca grant but curiously awarded the eleven square leagues (48,708 acres) as a “consolation prize.” The United States Supreme Court held that the Spanish governor had not approved the grant and added that Bartolome Baca never acted consistently with a belief that he owned the land. The court said the Oteros were not entitled to any acreage whatsoever and thus ended the litigation over the Baca grant.
If Joel Parker Whitney felt some relief after the decision on the Baca grant, he eventually would be disappointed. The Court of Private Land Claims rejected his claim and the United States Supreme Court affirmed, holding that the grant to Sandoval was in excess of the amount allowed under the 1824 law and 1828 regulations of Mexico and was not, therefore, confirmed by the legislature in Mexico City, all as shown by the absence of any record in the Mexican archives. Based upon his litigious habits, this was probably only a minor irritant to Whitney, but it finally ended his claim to the Sandoval/Estancia grant. Joel Parker Whitney died in January 1913 and Eloisa (Luna) (Otero) Bergere died the following year.
* Mark Thompson is a member of the State Bar of New Mexico Historical Committee. A prior version of this article appeared in The New Mexico State Bar Bulletin, 10 September 2007.
. As will be shown, the amount of land involved in this story is something of a moving target.
. The time line is significant and an appendix with important dates and developments is attached.
. Baca would later serve as governor of the province as an appointee of the Mexican government, 1823-24.
. Although estancia was the seventeenth-century Spanish word for “homestead,” Bob Julyan says that in this instance “it carried the meaning of ‘resting place’. . .” Robert Julyan, The Place Names of New Mexico, rev. ed. (Albuquerque: University of New Mexico, 1998), 127.
. Eleanor B. Adams and Fray Angelico Chavez, Missions of New Mexico, 1776 (Albuquerque: University of New Mexico Press, 1956), 2-4. Miera y Pacheco places Estancia further west, closer to the mountains, than present day Estancia which may indicate he had something other than the springs in mind.
. Act of 22 July1854. I will leave it to others to argue about the meaning of the treaty obligations.
. Some of my interpretation is clearly with the hindsight of litigation, and so forth, and I am making no claim to “expertise” on the interpretation of the statute. The language of the statute implies that a grant “rejected” by the surveyor was still subject to final action by Congress, and, in theory, could be reversed and a grant approved. I believe that, at least by 1882, no such result had occurred.
. Compilation of Private Land Claims by David J. Miller, Chief Clerk for the office of the Surveyor-General, New Mexico Blue Book (1882; facsimile ed., University of New Mexico, 1968), 131.
. Some sources suggest that Manuel Otero purchased only one-half and that his brother, Miguel, then a merchant in Leavenworth, Kansas, purchased the remainder. Miguel’s son, M.A. Otero (Jr.), who became governor in 1897, would later describe the transaction as one with his father as a “silent partner,” and recognized as such by Manuel’s heirs. Miguel Antonio Otero, My Life on the Frontier, 1882-1897 (Albuquerque: University of New Mexico Press, 1939), 2: 99-100.
. New Mexico Blue Book, 132.
. Ibid, 130-32.
. Valencia County Probate Journal, 1882-1888 , 93-96. (Abstracted by Priscilla I. Greene and printed in The New Mexico Genealogist, 37:4, December 1998). The abstract indicates 1881, but based upon other references and dates, it appears to be a typo.
. Richard A. Miller, Fortune Built By Gun: The Joel Parker Whitney Story (Walnut Grove, Cal.: The Mansion Pub. Co., 1969), 118-38.
. Chaves v. Whitney, 4 N.M. 611 (1888). Santa Fe attorney Thomas B. Catron represented Chaves and that might be another clue pointing to Otero involvement in the case. The court held that New Mexico courts could not “try the title” of land grants which were still pending before Congress under the 1854 law. The district court had ruled in favor of Whitney based upon the “superior” title of the Sandoval grant over the Baca grant. Nevertheless, the case was remanded to determine if Chaves had in fact ousted Whitney from possession of the property, a question which could be decided without regard to the respective title claims of Whitney and Otero.
. Whitney v. McAfee, 3 N.M. 9 (1883). The court in the later Chaves case decided that some of the analysis in McAfee was incorrect but that the holding was, nevertheless, consistent with the 1854 law.
. “A Triple Tragedy,” The Morning Journal (Albuquerque), 19 August 1883, 3 and “The Estancia Horror,” The Morning Journal (Albuquerque), 22 August 22, 1883, 3. In addition to Miller, note 13, supra and Otero, My Life on the Frontier, 2: 99-100; Erna Ferguson, Murder & Mystery in New Mexico (Albuquerque: Merle Armitage, 1948), 33-48; and Charlotte Whaley, Nina Otero-Warren of Santa Fe (Albuquerque: University of New Mexico Press, 1994), 19-22.
. “James G. Whitney,” The Weekly Journal (Albuquerque), 21April 1884, 3.
. “The Whitney Trial,” The Morning Journal (Albuquerque), 30 April1884, 1 and “Whitney Acquitted,” The Morning Journal (Albuquerque), 1 May 1884), 1.
. Editorial, The Morning Journal (Albuquerque), 2 May 1884), 3.
. Otero, My Life on the Frontier, 2: 108.
. Manuel B.’s cousin, Miguel A. (Jr.) was appointed governor by President McKinley and served for nine years. Otero County, New Mexico bears his name. Miguel Antonio (primero) was no less a mover and shaker. He served one term (Third Session, 1852-53) in the territorial House of Representatives from Valencia County, three terms as the nonvoting territorial delegate to Congress, 1856-61 and, a portion of 1861 as the Secretary of Territory. Apparently President Lincoln was prepared to elevate him to governor, but Otero’s sympathy for the Confederacy killed that move. He, like his nephew Manuel B., had considerable formal education and was admitted to the Bar in the State of Missouri in 1852 at age twenty-three, shortly before returning to New Mexico. Some biographies claim that he practiced law in Albuquerque in 1851 but that would appear to be inconsistent with his living and studying law back east that year. Another biography claims he was appointed Attorney General for New Mexico in 1854, but that is not supported by the official list in the New Mexico Blue Book, 1882, 120. I have found no conclusive evidence that he was admitted to the Bar in New Mexico. He was, however, a successful merchant in Kansas, Colorado, and New Mexico, as he followed the development of the railroad. Otero County, Colorado was named for him and following his death in Las Vegas, New Mexico in 1882, he was buried in Riverside Cemetery on the north side of Denver.
. “Mrs.” Fernandez household, United States Federal Census, 1870, San Francisco County, California, population schedule, San Francisco township, San Francisco post office, page 318, dwelling 723, family 1112; National Archives micropublication M593, roll 83.
. The biography of Nina Otero-Warren, including the genealogy through the grandchildren of Eloisa from both marriages, is the best source for this part of the story. Whaley, Nina Otero-Warren, 19-22.
. Act of 3 March1891. See generally, Richard Wells Bradfute, The Court of Private Land Claims: The Adjudication of Spanish and Mexican Land Grant Titles, 1891-1904 (Albuquerque: University of New Mexico Press, 1975).
. In addition to his personal claims, Catron represented clients in “at least sixty-three land grant cases in New Mexico . . . .” Victor Westphall, Thomas Benton Catron and his Era, (Tucson: University of Arizona Press, 1973), 72. Two members of his extended family married into the Otero-Bergere family. Whaley, Nina Otero-Warren, preface with genealogy.
. Bergere v. United States, 168 U.S. 66 (1897). Governor Otero’s report of the hearing before the U.S. Supreme Court is amusing but not quite believable even if we assume that proceedings in the 1890’s were not as formal as today. Otero, My Life on the Frontier, 2: 107-08.
 Whitney v. United States, 181 U.S. 104 (1901).
. “Mrs. Bergere is Claimed by Grim Reaper at Capital,” The Albuquerque Morning Journal, 9 September 1914, 2.