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Preston Beck Junior Grant

by J. J. Bowden

On December 6, 1823, Juan Estevan Pino, a resident of Santa Fe, New Mexico, petitioned Bartolome Baca, acting governor or New Mexico, for a grant covering the lands surrounding the Ojito de las Gallinas, which is located about 85 miles southeast of Santa Fe on the road to Las Conchas. Pino stated that while he had a large amount of livestock, he did not have a suitable place to pasture them. Therefore, in order to relieve this hardship, he requested Baca to grant him all of the lands lying within the following boundaries:

On the north, the landmarks of the farm of Don Antonio Ortiz, and the table lands of the Aguage de la Yagua; on the east, the table land of Pajarito; on the south, the Pecos River; and on the west, the point of the table land of Las Chupaines.

The petition was transmitted by Baca to the Provincial Deputation of New Mexico on December 18, 1823, with the recommendation that the request be granted. The Provincial Deputation considered the matter on December 23, 1823, and resolved that the lands should be granted to Pino without further delay in order to check the continuous decline in agriculture and industry which had been caused by the prejudicial policy then existing against making grants of the public lands. On the same day, Baca issued a decree granting the premises to Pino. Pino was placed in legal possession of the grant, which was called Hacienda de San Juan Bautista del Ojito del Rio de las Gallinas, on August 29, 1825, by Thomas Sena, Constitutional Alcalde of San Miguel del Bado.[1] Pino promptly settled upon the grant and continuously occupied and used the land until his death in 1838 or 1839. During this period, Pino cultivated the valley lands along the Pecos River and pastured as many as 900 cows and 80,000 sheep and goats on the table lands of the grant. After Pino’s death his two sons, and only heirs, Manuel and Justo, owned and operated the grant. By 1845 Indian raids upon their extensive herds had become so frequent that the further operation of the ranch became unprofitable and highly dangerous. Therefore, Manuel and Justo Pino removed all of their stock from the grant and moved to the town of Pecos, New Mexico. They subsequently conveyed their interests in the grant to their respective wives. On June 18, 1853, Manuel Pino and his wife, Josefa Ortiz Pino, conveyed their one‑half interest in the grant to Hugh N. Smith, Trustee for Preston Beck, Jr. Justo Pino and his wife, Gertrudes Rascon Pino, conveyed the remaining half interest in the grant to Preston Beck, Jr. on October 30, 1854.[2] Thereafter, the grant usually was referred to as the Preston Beck, Jr. Grant.

Beck filed a petition in the Surveyor General’s office on May 10, 1855, requesting that his title to the Ojito de las Gallinas Grant be investigated and confirmed. He expressly called the Surveyor General’s attention to the fact that Alexander Hatch and about one hundred other persons were “squatting” on the grant. Surveyor General William Pelham held a hearing on August 20, 1855, at which a great deal of oral testimony was given concerning the grant. In answer to the question of what was the procedure to be followed in obtaining a grant in New Mexico, Domingo Fernandez stated: 

Before the establishment of the Provincial Deputation (in 1822) it was customary to apply to the Governor of the territory. In the time of Don Diego de Vargas, as they were at war, he granted possession himself. Afterwards, application was always made to the Governor, and he referred the petition to the justice of peace to report if the grant would be to the injury of any third person or not. If there was no impediment the possession was granted. Afterwards, when the Provincial Deputation was established, application was made to the deputation through the president, who was the Political Chief Governor, and the petition was referred, by decree of the secretary, to the prefect or the corporation, under whose jurisdiction the land petitioned for was situated.[3]

Hatch protested the confirmation of the grant on three separate grounds. First, that the governor of New Mexico did not have authority to make a grant in 1823. This contention was based on the theory that once Mexico had severed relations with Spain, all Spanish laws then in effect were automatically annulled and, thus, there was no law in force in New Mexico authorizing the governor acting with consent of the Provincial Deputation to issue the grant. Second, that the grant was invalid since its description was so indefinite that its boundaries could not be definitely located. Finally the grantee had for­feited all his rights in the grant as a result of his having failed to occupy the lands as required by law.

Surveyor General Pelham recognized the importance of the questions and principles at issue and, therefore, carefully examined the claim. He wrote a decision on September 30, 1856, in which he found that the documents presented in the case were original and signatures of the granting officers and conveyors were genuine. Pelham further found that the grant had been made by the Provincial Deputation, and the granting decree of the governor was but a fulfillment of the wishes of that body. He had no question concerning the authority of the Provincial Deputation to dispose of public land. However, in connection with its boundaries, he found that since the natural objects called for in the testimonio were definite and well known in the community, the limits of the grant could easily be fixed and located. He also found that the grantee and his heirs had occupied and used the land until driven off by the hostile Indians. Since the land had not been voluntarily abandoned, there could be no forfeiture of the grant. In conclusion, Pelham found the grant to be absolute and valid and one which the United States was obligated to recognize under the Treaty of Guadalupe Hidalgo. He, therefore, approved the grant and recommended that it be confirmed by Congress.4]

On June 21, 1860, Congress passed an act[5] which confirmed the Preston Beck, Jr. Grant. After the passage of this act, Surveyor General A. P. Wilbar, without giving notice to Beck, directed Deputy Surveyors William Pelham and Reuben E. Clements to survey the grant. The survey was made during the month of September, 1860, and showed that the grant contained 318,699.72 acres. Wilbar approved the survey on November 23, 1860.6]

Beck died shortly after the passage of the Act of June 21, 1860,[7] leaving his estate to his brother, cousin, nephews, and nieces. Beck’s devisees never objected to the survey, but on the contrary, indirectly approved it by repeatedly demanding that a patent be issued to them. The Land Office consistently refused to issue a patent prior to February, 1874, on the grounds that the Act of June 21, 1860,[8] did not authorize the patenting of grants confirmed by that act. However, Congress remedied this oversight by inserting a provision in the Act of March 3, 1869,[9] which required the Commissioner of the General Land Office to issue patents to the owners of unpatented private land claims which therefore had been confirmed by Congress and surveyed. Notwithstanding the provisions of this act, the Commissioner doubted that he had authority to patent previously confirmed grants until the United States Attorney General in an opinion dated February 21, 1874,[10] specifically held that he had such authority.

Meanwhile, the owners of the grant withdrew their request for a patent on the grounds that the Pelham and Clemends Survey was inaccurate. They contended that the surveyors had mistaken the Mesa de Cuervito for the Mesa de Parajito, which was situated about six miles east of the former. Continuing, they asserted that under standard surveying principles the north line of the grant should have been extended eastward from the Mesa of the Aguazi de la Yegera to a point due north of the Mesa de Parajito and that the east line of the grant should have run south from this point through the Mesa de Parajito to the Pecos River. Surveyor General James K. Proudfit, after conducting an extensive investigation into the matter, found the survey to be erroneous and ordered a new survey. This decision was appealed to the Secretary of Interior by a number of parties who had acquired interests in the affected area. By decision dated August 21, 1880.[11] Acting Secretary A. Bell held that the Surveyor General had no jurisdiction to reopen the question of the accuracy of the Survey and that since the Preston Beck, Jr. Grant had been confirmed by Congress and the Pelham and Clements survey had been approved by the Surveyor General, the Act of March 3, 1869,[12] left no discretion with the Commissioner of the General Land office but to perform the ministerial act of issuing a patent in accordance with the survey. Pursuant to this decision, a patent dated June 13, 1883, was tendered to the owners of the grant but was refused on the grounds that it did not contain all of the lands which had been confirmed by the Act of June 21, 1860.13]

In an ingenious attempt to secure the recognition of his claim for additional lands outside the boundaries of the grant as surveyed by Pelham and Clements, George W. Stoneroad filed an ejectment suit in the New Mexico District Court against James P. Stoneroad, who claimed a tract in the affected area. The State courts held for the plaintiff.[14] However, on appeal to the United States Supreme Court, it was held[15] that since the Act of June 21, 1860, contemplated the survey of the grant for the purpose of marking its boundaries,[16] the Pelham and Clements Survey, which was made by the Land Department within the scope of its authority, was unassailable in the courts in a collateral proceeding. After the Supreme Court had rejected their effort to secure the additional lands which they claimed under their interpretation of the description of the boundaries of the grant, the owners of the Preston Beck, Jr. Grant on November 12, 1917, finally accepted the patent which previously have been tendered to them.

[1] H. R. Exec. Doc. No. 1, 34th Cong., 3d Sess., 444‑448 (1857).

[2] Ibid., 448‑453.

[3] The Preston Beck, Jr. Grant, No. 1 (Mss., Records of the S.G.N.M.).

[4] S. Exec. Doc. No. 5, 34th Cong., 3d Sess., 473‑478 (1857). Pelham’s conclusions were supported by the decision of the New Mexico Supreme Court in Pino v. Hatch, 1 N.M. 125 (1855) which held the Preston Beck Grant to be good and valid. This Court held that a grant for a part of the public domain executed by the political chief of New Mexico in 1823 upon a petition of the grantee and with the advice and consent of the provincial deputation, and reciting the fact that it was made pursuant to legal authority, such grant and the possession taken thereunder having remained without objection from the national government for seventy-five years and must be presumed to have been authorized and to be valid. However, the New Mexico Supreme Court in Stoneroad v. Beck, 16 N.M. 754, 120 P. 898 (1912), held that the Preston Beck, Jr. Grant Was void since it had been issued in the interim period between the suspension of the Iturbide Colonization Law of January 4, 1823, and passage of the Natural Colonization Law of August 18, 1824.

[5] An act to confirm certain private Land Claims in the Territory of New Mexico, Chap. 167, 12 Stat. 71 (1860).

[6] The Preston Beck, Jr. Grant, No. 1 (Mss., Records of the S.G.N.M.).

[7] Supra., note 5.

[8] Ibid.

[9] An act to confirm certain private land claims in the Territory of New Mexico, Chap. 152, Sec. 2, 15 Stat. 342 (1869).

[10] 14 Opinions of the Attorney General of the United States, 624 (1874).

[11] The Preston Beck, Jr. Grant, No. 1 (Mss., Records of the S.G.N.M.).

[12] Supra, note 9.

[13] Supra, note 5.

[14] Stoneroad v. Stoneroad, 4 N.M. (Gild.) 181, 12 p 736 (1887).

[15] Stoneroad v. Stoneroad, 158 U.S. 240 (1895).

[16] Supra., note 5.