by J. J. Bowden
Ignacio Perez petitioned the Governor of Sonora and Sinaloa, Antonio Cordero, on December 16, 1820, and denounced a four sitio tract of public land located at the depopulated town of San Bernardino for cattle breeding purposes. He stated that he needed the land as a pasture for the livestock which his wife had inherited and also to maintain the animals which he had purchased. He described the requested tract as extending, north to south, from the Sauz to the hills north of Guadalupe and, east to west, from the Batepito and sierra del Cabullon to the source of the San Pedro River. On February 23, 1821, Cordero issued an order directing the Alcalde of the Presidio of Fronteras Nazario Gomez, to inspect, survey and appraise the premises in accordance with the provisions of the Royal Cedula February 14, 1805.[1] Cordero was careful to point out that the Cedula prohibited the cession of more than four sitos to one individual and required issuance of notice of the application to the adjoining landowners so they could be present and witness the survey. Since Gomez’s term had expired, his successor, Miguel Teran, proceeded to carry out the governor’s instructions. He appointed Gomez as agent to represent the Public Treasury. Ramon Benitez and Ramon Munos were appointed appraisers and surveyors, and Luis Aragon was made clerk. Since the land was located deep in Indian Territory and there were no known adjacent landowners, Teran issued a public notice in which he advised all interested parties of his intention to inspect and survey the tract on April 2, 1821. Due to an unexpected illness, Munos could not accompany Teran and Ignacio Dominguez as appointed to take his place. Teran and his party arrived at San Bernardino on April 3, 1821, and proceeded to survey the tract. The survey was commenced at a monument which he constructed in front of a spring located on the mesa known as La Avanzada. He ran a five thousand vara southeasterly line from the monument to a spring on a hill for the northeast corner of the grant. Early the following morning he proceeded to run the west line of the grant. Commencing at the monument, he ran the line in a south‑westerly direction twenty thousand varas. At five thosand varas he established a monument on the mesa known as Tinaja Vieja; at ten thousand varas he set a monument on a hill in the middle of the malpaicitos; at fifteen thousand varas a monument was constructed on a scrubby wooded mesa on the bank of a deep creek that faces the place known as Patrerito; and at twenty thousand varas a monument was erected on top of the hill known as Canada de la Espuelas. The survey turned southeast from this corner monument and ran five thousand varas to a spot of black malpais located at the Mesa del Nopales, which was situated at the foot of a high hill on the right slope of the Canada de los Embudos. The survey turned northeasterly twenty thousand varas to the monument marking the northeast corner. The east line ran past the Sierra de Pitaricachi and the pass in the San Simon Valley. The northern sitio contained four springs and a swamp, but the three southern sitios were waterless. The appraisers fixed the value of the northern sitio at thirty pesos and the southern sitio at ten pesos each. Ventura Morena, Ignacio Arvisu, and Pedro Rodriguez testified that Perez had about ten thousand head of cattle and some horses and that they doubted that the four sitios would be adequate to satisfy his needs. After studying the proceedings carefully, Gomez found that the lands at San Bernardino had been abandoned for forty years, the granting of the land would tend to check the hostile Indians, and Perez had the means to develop the premises. Therefore, he ordered the sale of the tract at public auction. Public notice of the soliciting of bids was given each day for 30 days commencing on February 5, 1822. Since no third party offered to buy the land, the proceedings were forwarded to Governor Ignacio Bustamante for his further action. Bustamante, in turn, referred the matter to the Promoter Fiscal of the City of Arispe, who found that the appraisement of the northern sitio was too low and set its value at sixty pesos. He also ordered the land be offered for sale by the Board of Public Sales for three consecutive clays and sold to the highest bidder on the third day at public auction. Since there were no other bidders, the premises were sold to Perez on March 23, 1822, for ninety pesos plus costs of ten grains. Perez paid the purchase price and costs two days later, but title papers were not issued and the grant was not entered into the Toma de Razon.[2] Perez had actually occupied the premises from 1821 or 1822 until September 6, 1884, when he gave John H. Slaughter a ninety-nine year lease covering the portion of the grant located in the United States. Slaughter instituted suit[3] in the Court of Private Land Claims on February 27, 1893, seeking the confirmation of the northern 13,746 acres of the grant.
The government in its answer raised two principal defenses against the confirmation of the claim. First, it asserted that the officials of Sonora and Sinaloa had no authority to sell public land in 1822. The second defense was that, since title papers had not been issued and the grant was not listed in the Toma de Razon it was not duly recorded in the Archives of Mexico as required by Article VI of the Gadsden Treaty.[4]
The cause came up for hearing at Tucson, Arizona, on March 18, 1895. Slaughter introduced a certified copy of the proceedings had in connection with the sale of the land which had been found in the Mexican Archives at Hermosilla. The government called attention to the fact that the title papers showed merely that they applied for the grant and paid the purchase price but there was no evidence that title was ever issued. It argued that the failure to issue title indicated not only that the title was never delivered to the grantee, but that it was withheld by the government for some reason. Slaughter contended that Article 81 of the Ordinance of December 4, 1786,[5] gave the governor of Sonora and Sinaloa exclusive jurisdiction over the sale and distribution of the public domain; and Mexico upon declaring its independence in the Plan of Iguala,[6] provided that all political employees were to continue in office. On October 5, 1821,[7] the Provisional Council issued an order which confirmed and legalized the actions of public officials in the exercise of their respective functions. By decision[8] dated October 23, 1895, the court rejected the claim on the ground that the grant had not been duly recorded in the Archives of Mexico as required by Article VI of the Gadsden Treaty.[9]
Slaughter’s motion for a rehearing was granted, and at the retrial of the case he introduced an extract from the list of “Expedientes whose proceedings of sales and payments of value of the lands have taken place and are only lacking the issuance of title,” found in the archives at Hermosillo This list mentions the San Bernardino Grant and describes it as follows:
No. 3, belonging to Don Ignacio Perez for four sitios of land embraced in the place called San Bernardino in the jurisdiction of Fronteras.
He also presented from the archives of Sonora a petition to the Treasurer General dated December 30, 1833, signed by Ignacio Perez, in which he stated that he had purchased the four sitios comprising the place known as San Bernardino and had paid the purchase price therefore into the Public Treasury. The petition closed with the request that title to the land be issued to him. Next, he introduced from said archives an extract from “a detailed report of the expedientes formed about lands granted and adjudged, from September, 1821, onward, during the epochs of the Federal and Central Governments, compiled in compliance of a Supreme order of March 24th and of the Superior Order of April 25th of the aforesaid year 1857.” This document described the San Bernardino Grant as having been sold to and paid for by Ignacio Perez on March 25, 1832. The grant was also listed in the “Index of the Expedientes” contained in the Treasury Department of the State of Sonora. The final piece of documentary evidence filed by Slaughter was an instrument signed by the Governor of Sonora addressed to the Treasurer General dated December 31, 1833, in which he states:
Inasmuch as the expediente exhibited to your Honor by Citizen Ignacio Perez with the respective application and which you enclose with your communication of today is in due form and in accordance with the superior dispositions relating thereto, in the registry survey, valuation, publication and auction sale of four sitios of land comprised in the place known as San Bernardino; the State Executive directs that your Honor may order the issuance to the party in interest, of the grant title he prays for, returning to you, for the purpose of the aforementioned expediente.
Slaughter argued that this documentary evidence clearly showed that the Mexican Government had recognized the grant from time to time but for some unknown reason had not issued a formal title to him. Thus, he contended that the grant should be confirmed as an imperfect or equitable claim. On February 10, 1900, the court issued its majority decision[10] confirming the grant insofar as it covered the portion lying within the United States. Based upon an investigation conducted by Special Agent Henry O. Flipper, the court found that the initial monument of the grant was located near Aston Spring and described the confirmed portion of the grant as follows:
Beginning at the northwest corner of said tract at a mound of stone near the head of Aston Spring and on the north side thereof and near the edge of the Aston Spring Gulch …; thence south 55° 16´ 26˝ East 100 cords or 13,728 feet to the north‑east corner; thence South 0° 11´ West 2,863 feet to the southeast corner on the International Boundary Line; thence North 10° 45´ East 1019.4 feet to a monument of stone; thence North 26° 7´ East 10,703.3 feet to the northwest corner and place of beginning, containing 2,366.5 acres, more or less.
Justices Thomas C. Fuller and w. N. Murray dissented on the ground that the grant was not recorded within the meaning of the Gadsden Treaty.
The United States Attorney in his report advised[11] the Attorney General that the only possibility of success on appeal would be that the claim was not technically recorded. However, in view of the smallness of the area confirmed and the fact that the tract had been occupied as an outpost against the Indians from very early days, he did not believe that the Supreme Court would reverse the decision. Therefore, he recommended no appeal. The grant was patented[12] on May 22, 1913, for 2,328.86 acres.
[1] Reynolds, Spanish and Mexican Land Laws 68-73 (1895).
[2] Slaughter v. United States, No. 1 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[3] Ibid.
[4] 6 Miller, Treaties and Other International Acts of the United States of America, 293‑302 (1942).
[5] Reynolds, Spanish and Mexican Land Laws 60 (1895).
[6] 4 Bancroft, History of Mexico 710 (1885).
[7] Reynolds, Spanish and Mexican Land Laws, 95 (1895).
[8] 1 Journal 96 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[9] 6 Miller, Treaties and Other International Acts of the United States of America 293‑302 (1942).
[10] 1 Journal 171‑172 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.)
[11] Report of the United States Attorney dated March 15 1900, in the case Slaughter v. United States (Mss., Records of the General Services Administration, National Archives, Washington, D.C.) , Record Group 60.
[12] B.L.M. to J.J.B., August 8, 1968.
San Bernardino Grant; J.J. Bowden's research on land grants in the southwest.