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Petaca Grant

by J. J. Bowden

On January 29, 1836, Jose Julian Martinez together with his father, Antonio Martinez, and Francisco Antonio Atencio and his sons petitioned the Ayuntamiento of the Town of Ojo Caliente asking for a grant covering a piece of vacant land, known as the Petaca and situated upon the Ojo Caliente River, for agricultural purposes. The Ayuntamiento forwarded the petition to the Departmental Deputation on February 22, 1836, stating that the lands had been granted some twelve years previously but the former owners had forfeited same because they had failed to settle upon and improve the premises as required by law. It also recommended that the grant be made, but only to Jose Julian Martinez, Antonio Martinez, and Francisco Antonio Atencio since Atencio’s sons were minors and thus had no authority to join, in the petition. The Departmental Assembly, in turn, referred the matter to Governor Albino Perez, who, on February 25, 1836, granted the request and ordered the Alcalde of Ojo Caliente to designate the boundaries of the donation and place the applicants in legal possession of the land. Pursuant to and by virtue of the authority delegated to him, Alcalde Jose Antonio Martinez on March 25, 1836, together with the interested parties went to Petaca where he pointed out the following natural objects which he designated as the exterior boundaries of the grant:

On the north, the hill commonly called Tío Ortiz Hill; on the east, the Arroyo de la Aguaje de Petaca; on the south, the entrance to the Canoncito and lands of Jose Miguel Lucero; and on the west, the Vallecito Grant.

 The alcalde then proceeded to allot individual lots, each with 150 varas of river frontage, to the three original grantees and thirty-three associates, who had joined them in the formation of the new colony. The lots commenced at the Canoncito de Petaca and extended northward. A lot, 250 varas in width, was also designated as a plaza and for other public purposes. Once the survey and allotments had been made, the colonists were placed in legal possession of their individual lots.[1]

The settlement was in existence when the United States conquered the area in 1846 and had been continuously occupied and used since its inception except for short periods when Indian hostilities forced its inhabitants to seek safety at Ojo Caliente. The heirs and legal representatives of the original grantees filed a petition[2] on February 12, 1875, in the Surveyor General’s Office seeking the confirmation of the grant. Eight days later Surveyor General James K. Proudfit issued his decision[3] in which he stated that he had no doubt concerning the validity of the grant papers and, therefore, recommended it be confirmed to Jose Julian Martinez and the thirty-five other colonists named in the Act of Possession. A preliminary survey of the grant was ordered by Proudfit in 1878 at the request of the claimants. Between May and October, 1878 Deputy Surveyors Griffin & McMullen made the survey. It showed that the grant contained 186,977.11 acres.[4]

On July 28, 1883, S. S. Farwell wrote Surveyor General Henry M. Atkinson stating he had acquired the interests formerly owned by a number of the original colonists, and that his attorney, after having examined his title, had advised him that title to the entire grant, except for the individual tracts which had been allotted to the thirty-six settlers, was vested in Jose Julian Martinez, Antonio Martinez, and Francisco Antonio Atencio. Therefore, he requested Atkinson to re‑examine the grant with a view of determining if Proudfit had made a mistake and, if an error in fact had been made, should it be reported to Congress in order that the grant might be confirmed to the proper persons. Surveyor General Atkinson reviewed the case and wrote a Supplemental Report[5] on August 1, 1883. He stated:

I question whether the right to review the acts of my predecessors exists, except in instances where the case is remanded back by Congress for rehearing or review, but as that body has the final action and decision in these cases, with entire discretionary power to make grants, or confirm those made by the Spanish and Mexican Governments, it is presumed that if error exists in the record of the case, there could be no objection to pointing out to Congress such error, in order that its action may conform to the requirements and obligations of the Treaty of Guadalupe Hidalgo and the rights of persons thereunder.

Briefly stated, he found that Perez had granted the premises to Jose Julian Martinez, Antonio Martinez, and Francisco Antonio Atencio but Alcalde Martinez had no authority to inject new grantees into the concession or alter in any manner the terms of the grant. He concluded by holding that legal and equitable title was vested in the three parties who had applied for and received the grant and recommended that it be confirmed to them. In support of this position, he pointed out that:

It was a custom in those days, on account of the danger existing from hostile Indians in some localities, for persons receiving concessions to take with them for protection or assistance as herders employees to whom they gave small parcels of land to cultivate, and to which they may have acquired a prescriptive right as against the grantees, but such persons held no interest in the general commons of the grant and were not beneficiaries thereunder.

Congress still had not acted upon the claim when George W. Julian was appointed Surveyor General. The Petaca Grant was one of the grants which were re‑examined by Julian under instructions [6]from the Commissioner of the General Land office dated December 11, 1885. In a Supplemental Report[7] dated April 17, 1886, he stated that the record before him presented three important questions. First, was there a valid grant? Second, did the evidence show the existence of any party having an interest in the land? And, third, had the grant been surveyed correctly? In answer to the first question, Julian asserted that:

… written documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, will not suffice if it is obtained from private hands and there is nothing in the public records of the country to show that such evidence ever existed ... The equity of the claim is a different question. The genuineness of the grant is sufficiently established ... The strictness of the law of 1824 as to the record evidence of grants was never followed in New Mexico, where grant claimants were too much accustomed to hold the evidence of their titles in their private custody, although they frequently deposited them in public archives. When the United States took possession of those archives, they were, therefore, necessarily incomplete, and some of them in all probability were scattered and lost in the year 1870 through the reckless conduct of William A. Pile, who was then Governor of New Mexico. In the light of these facts, I think it would be a great hardship to reject altogether the claim now made and that justice will be best served by recognizing an equitable title to the land granted.

Julian avoided answering his second question by holding that the problem could best be settled by another tribunal. In connection with the third question, he held the Griffin & McMullen Survey obviously was erroneous for it covered almost twice the area originally claimed by the petitioners. He pointed out that since the governor had made the grant to Jose Julian Martinez, Antonio Martinez, and Francisco Antonio Atencio, it could not under the Colonization Law of 1824 exceed 33 square leagues. Since he had no way of knowing the true area covered by the grant, he recommended that the equitable title of the “proper claimants” be confined to the “land actually covered by the grant.” Commissioner William A. J. Sparks reviewed all three reports which had been filed in connection with the grant in an effort to reconcile the conflicting views and recommendations. On January 21, 1887, Sparks notified Secretary of Interior L. Q. C. Lamar that in his opinion the claimants had failed to prove that they had legal title to the lands in question. He specifically called attention to the fact that the grant had never been approved by the Departmental Deputation and the expediente had not been filed as required by the Colonization Laws. He concluded by holding that since “the record was the grant,” the claimants had no legal title to the land. However, since the claimants had entered upon, occupied and cultivated the allotted lands and were in possession of the premises in 1848, they had an equitable claim. He, therefore, recommended the confirmation of the claim as a community grant for an area not to exceed four square leagues.[8]

With so many divergent views on its merits, it is no wonder that Congress failed to act upon the claim. This confusion led to the institution of three separate suits in the Court of Private Land Claims for the recognition of these various interests. The first was filed[9] on February 17, 1893, by Antonio Serafin Pena and thirty-two other persons for themselves and on behalf of all others who claimed to be the heirs and legal representatives of the thirty-six parties who were named in the Act of Possession. The second suit was filed[10] on March 3, 1893, by L. Z. Farwell, who had purchased the interests of most of the heirs of Jose Julian Martinez, Antonio Martinez and Francisco Antonio Atencio. Farwell contended that they owned an undivided interest in all of the grant, except for the individual lots distributed to the other 33 colonists named in the Act of Possession. The third suit[11] was brought two days later by Jose A. Garcia, who had purchased the interest formerly owned by Juan Jose Jacques, one of the original colonists listed in the Act of Possession. The three suits were consolidated[12] by the court for purposes of trial. The consolidated case came up for hearing on June 7, 1895, and was continued from time to time for the purpose of taking testimony, until the trial was concluded on March 20, 1896. The record raised four principal questions to be passed upon by the court. The court noted that while the grant papers were genuine and the governor had the power to issue the concession, it had to interpret the testimonio in order to determine to whom the grant had been made. The second question pertained to the government’s contention that the grant had been abandoned prior to the time that the United States had acquired New Mexico. The government’s testimony which was somewhat vague and inconclusive but tended to prove that the grant had not been permanently settled until 1848, when the original grantees and a number of new colonists petitioned for and were placed in possession of the grant and additional allotments made to the new settlers. The next question concerned the boundaries of the grant. The government pointed out that someone had altered the description in the testimonio. It was obvious that its eastern call originally had read “on the east the mesa de la Trilla de la Petaca” but had been erased and rewritten to read “the Arroyo de las Aguaje de Petaca.” The final question concerned the question as to whether the court had authority to confirm an equitable title since no legal title could be established without some record of the grant being found in the Archives of New Mexico. In its opinion[13] dated September 5, 1896, the court found (a) the grant was a community grant made in favor of all the thirty-six grantees to whom possession had been delivered under the Act of Possession; (b) the grant had been occupied by the grantees since its inception except for short periods when Indian hostilities rendered living on the land too hazardous; (c) that the east boundary of the grant was located at the Mesa de la Trilla; and (d) the evidence showed that the Archives of New Mexico had been “poorly kept” and that operating at a distance of 50 years since the grant was originally made, it would be unfair to hold that it was invalid merely because the expediente could not be found in the public records, especially in view of the fact that the testimonio had been recognized as being genuine. Therefore, the court held that a preponderance of the evidence showed the grant to be good and valid and should be confirmed in favor of all those placed in possession by Alcalde Martinez on March 25, 1836, to the extent of the natural boundaries described in the testimonio but not to exceed eleven square leagues.

The government appealed the decision on the ground that the confirmation should be limited to the area covered by the thirty-six original allotments. On December 18, 1899, the United States Supreme Court issued its decision[14] reversing the Court of Private Land Claims and holding that the Petaca Grant was in severalty to the thirty-six original colonists for the tracts of which they were given possession. The case was then remanded to the Court of Private Land Claims in order that additional testimony could be taken to identify such parties and the extent of their lands.

The case was reopened and additional evidence was taken during the months of July and August, 1900. The evidence showed that there was no controversy as to the extent of the lands from north to south, but a question arose as to how far the lots extended from east to west. The claimants contended that the lots extended to the exterior boundaries of the grant, thus making the tracts several miles wide. The government, on the other hand, contended that the lots simply extended across the valley proper. Thus, the lots would be only two to three hundred yards in width. The court, on August 9, 1900, held[15] that the individual lots extended only across the valley and that the 250 vara lot set aside for public purposes was owned by the original thirty-six colonists as joint tenants. An official survey of the grant was made by Deputy Surveyor Jay Turley on June 29, 1901, which disclosed that the Petaca Grant contained only 1,392.10 acres. A patent for such land was subsequently issued to the Board of Commissioners for the Petaca Grant.[16]

In his paper[17] concerning the activities of the Court of Private Land Claims, Justice Wilbur F. Stone says:

Another case was the Petaca grant. This was claimed to be about thirty miles long and twenty in width, embracing 100 square miles of pine forest. It had been bought by one of the Farwells of Chicago, who established sawmills and lumber camps in the pineries and for ten years shipped lumber by rail from Tres Piedras to the markets of Colorado and New Mexico, but had reserved the best portion of the pineries for future use. The court found that the original grant comprised only a paltry strip about five miles long and a few rods wide, embracing the little garden batches on the Canon of Petaca Creek, belonging to some poor Mexicans, who were made all the poorer by having the ownership decreed to them by court. The great pineries yet untouched were turned over to the Public Domain of Uncle Sam, to be gobbled up by lumber poachers, who will take care that they cut off the best part first.


[1] S. Exec. Doc. No. 31, 44th Cong., 1st Sess., 5‑9 (1876).

[2] The Petaca Grant, No. 105 (Mss., Records of the S.G.N.M.).

[3] Ibid.

[4] Ibid.

[5] S. Exec. Doc. No. 45, 48th Cong., 1st Sess., 2‑4 (1884).

[6] S. Exec. Doc. No. 113, 49th Cong., 2d Sess., 2 (1887).

[7] S. Exec. Doc. No. 52, 49th Cong., 2d Sess., 4‑6 (1887).

[8] Report of the Secretary of Interior for the Fiscal Year Ending June 30, 1887, 281‑283 (1887).

[9] Pena v. United States, No. 99 (Mss., Records of the Ct. Pvt. L. Cl.).

[10] Farwell v. United States, No. 153 (Mss., Records of the Ct. Pvt. L. Cl.).

[11] Garcia v. United States, No. 233 (Mss., Records of the Ct. Pvt. L. Cl.).

[12] 2 Journal 72 (Mss., Records of the Ct. Pvt. L. Cl.).

[13] 3 Journal 108 (Mss., Records of the Ct. Pvt. L. Cl.).

[14] United States v. Pena, 175 U.S. 500 (1899).

[15] 4 Journal 183 (Mss., Records of the Ct. Pvt. L. Cl.).

[16] The Petaca Grant, No. 105 (Mss., Records of the S.G.N.M.).

[17] Stone, “A Brief History of the Court of Private Land Claims,” New Mexico Bar Association Proceedings, 17 (1904).