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San Joaquín del Nacimiento Grant

by J. J. Bowden

Joaquin de Luna, for himself and on behalf of thirty five associates, by petition addressed to Governor Pedro Fermin de Mendinueta applied for a grant covering a tract of land situated upon the headwaters of the Rio Puerco and known as San Joaquin del Nacimiento. The petition pointed out that the thirty‑six petitioners had settled upon the tract three years previously and had resided upon and used the lands ever since. They assured the governor that the requested tract, which was bounded:

On the north, by a small arroyo commonly called the Arroyo de la Tortuga; on the east, by the mountain extending from Jemez to the Piedra Lumbre; on the south, by the point of a mesa through which runs an arroyo commonly called the Arroyo Hondo; and on the west, by a boundary to be fixed by the alcalde.

was large enough to support their families and herds, which they estimated to contain 10,000 head of cattle and sheep together with an abundance of horses which they employed in the service of the king.

Governor Mendinueta received the petition on July 20, 1769 and on the same date conceded the premises to the applicants. In his granting decree, Mendinueta noted that the thirty‑six families formed a “respectable settlement, which serves as a barrier to the Utah and Navajo tribes ...” He concluded by directing Alcalde Bartolome Fernandez to place the grantees in royal possession of the grant and to allocate each grantee a house lot and a farm tract. Fernandez, in response to the governor’s decree, proceeded to the grant where he met the grantees on July 28, 1769. First he designated the boundaries of the grant. The northern, eastern and southern boundaries were fixed at the natural objects mentioned in the applicants’ petition. The arroyo commonly called the Arroyo de en Media was designated as the western boundary of the grant. Fernandez estimated that the grant was about three leagues wide and four leagues long. Next, he set aside “eighty Castilian varas” as a townsite where the grantees were directed to build their houses, stables and barns. Finally, he allotted to each grantee two hundred varas as an individual farm tract which was to be fenced. The balance of the giant was set aside as a commons.[1]

The grantees continuously occupied and used the grant for about “a generation.” However, the settlement was 

… finally overpowered by the combined frontier Indian tribes, their men bound with cords and imprisoned, and their women subjected to the most brutal of savage insults and violence, and many of the children carried into captivity.

Whereupon, the settlement was abandoned, but the owners of the grant continued to use it as a pasturage for their livestock.[2]

The heirs and legal representatives of the original grantees petitioned[3] Surveyor General T. Rush Spencer for the confirmation of the grant on April 22, 1871. In support of their claim, the petitioners filed the testimonio of the grant. They also called Rush’s attention:

… to the perfectness of these original title-deeds, their, regularity in form, etc., and as a proof of the authority of said Governor to make the grant, reference is made to the laws and decrees of the Crown of Spain, which were in force in this province of New Mexico at that time. The genuineness of the signatures appended by said Governor and Chief Alcalde to the title deeds in this case are fully proven and evidenced by a comparison of the same with their signatures in original titles to other grants made about the same time in this province by the same governor … and found among the ancient archives .… It is also evidenced in the original title deeds in this case that they are written and certified upon the same sheet of paper, and that each transcript thereof shows equal and unmistakable evidence of very great age.…[4]

Rush took up and acted upon the case shortly before his death in June, 1872. A rough unsigned draft of an opinion indicated that he had approved the grant. However, his successor, James K. Proudfit decided to re‑examine the claim. In an opinion dated November 30, 1872 Proudfit  stated that after a careful examination of the claim he believed that the testimonio was genuine and evidenced a valid and absolute grant unto the original grantees. Therefore, he found “no reason for arriving. . . at a different opinion” and, thus, concluded by recommending that Congress confirm the grant.

A preliminary survey of the grant was made in April, 1879 by Deputy Surveyors Sawyer & McBroom for 131,725.87 acres. On February 1, 1886 one hundred and sixteen settlers, who resided within the area covered by the survey, filed a protest with the General Land Office asserting that the survey was erroneous. They contended that the survey showed the grant a being located on Rio Puerco which ran from north to south into the Rio Grande while the grant was actually located on the Rio Puerco which ran from south to north into the Chama River. Commissioner William A. J. Sparks referred the matter to Surveyor General George Julian on April 2, 1886 and ordered him to re‑examine the grant and its boundaries. Julian in turn ordered William M. Tipton, his special investigator, to make an on‑the‑ground investigation of the boundaries of the grant. Tipton found that the Arroyo de Tortugas was known as the Ojo del Salado prior to the date of the survey and that the Arroyo Hondo twenty years previous to the date of the survey was a shallow marshy area known as the Canada de Pinos. Next he discovered that there was an Arroyo de en Medio west of the Rio Puerco that emptied into the Chama River. There was also an Arroyo Hondo and Rio Tortugas which flowed into that river with a Piedra Lumbre at the foot of the Jemez Mountains. However, his most interesting discovery was that while there were a few ancient ruins located within the boundaries of the survey, there was no evidence that a substantial Spanish settlement had ever been located thereon. On the other hand, he had located the ruins of an old Spanish settlement on the Rio Puerco which flowed into the Chama. In conclusion, he pointed out that the survey showed the grant as containing 131,725.87 acres while the grant papers called for only 58,000 acres. He believed that a survey could be made on the Rio Puerco which emptied into the Chama having its boundaries fixed by natural objects called for in the Act of Possession which would contain approximately 58,000 acres and upon which would be located the ruins that he had found.[5]

After carefully studying all of the evidence pertaining to the grant, Julian wrote a Supplemental Opinion[6] on September 21, 1886. While he found that the grant papers were undoubtedly genuine, he did not believe there was sufficient evidence to establish a valid title. He noted that according to Spanish law, lands granted for settlement and agricultural purposes had to be occupied and. used within a specified time and that the claimants had failed to show that the original grantees had complied with such conditions. He also pointed out that the claimants had failed to link themselves to the original grantees. In connection with the preliminary survey, Julian held that it was clearly erroneous. He wound up the report with the statement:

If any valid grant of the tract had been shown under any view of the facts of the case which can be at all justified, the claim made is indefensible, and I recommend its rejection by Congress.

As a result of Congress’ transferring its jurisdiction over the settlement of Spanish and Mexican land problems in the Southwest to the Court of Private Land. Claims, [7] Robert H. Longwill filed a suit in that court on March 2, 1893 seeking the confirmation of the grant.[8]

On February 28, 1893 Ramon García filed suit in the Court of Private Land Claims for the recognition of a claim known as the San Pablo Nacimiento Grant.[9] This claim was based on a testimonio which showed that Jose Montoya, Miguel Montoya, and Santiago Montoya for themselves and twenty‑two others had petitioned the Alcalde of Jemez, Ignacio Sanchez Vergara for a grant covering a tract of public land “at the place called Nacimiento on the same terms as conveyed to the old settlers.” The petitioners sought to justify their request by pointing out that a new settlement at that place would tend to check the incursions of the Ute Indians. The petition was forwarded to Governor Alberto Maynez by Alcalde Vergara on March 29, 1815 with the notation that “all the petitioners state is true.” Governor Maynez acceded to petitioners’ request and granted the tract to them on March 31, 1815. Maynez, in his granting decree, directed Vergara to distribute lots for houses and tracts for cultivation amongst the grantees but instructed him not to give any grantee more land than he “could break and cultivate.” The balance of the tract was to be “a royal commons for pasturing livestock.” Due to the hostility of the Indians, the grantees did not request Vergara to place them in possession of the grant for nearly three years. On March 1, 1818 Vergara proceeded to the grant with his witnesses, Jose Montoya and eleven other grantees and performed the usual ceremonies in connection with the delivery of possession. He also designated the boundaries of the grant which were identical with those established for the San Joaquin del Nacimiento Grant. He did not distribute any individual tracts since all the grantees were not present.[10]

 Cause No. 144 and 203 both came up for trial on August 30, 1899. Since the two cases covered the same premises, but were based on different sources of title, the court decided not to consolidate them but to hear the evidence in connection with both cases concurrently.

The plaintiffs in Cause No. 203 introduced the 1769 testimonio deeds and other documentary evidence connecting themselves to at least one of the original grantees under the San Joaquin de Nacimiento Grant, and oral testimony supporting their theory that the grant was located on the Rio Puerco, which ran into the Rio Grande, and that they had continuously occupied the grant except when prevented by Indian hostilities. The plaintiffs in Cause No. 144 introduced an 1815 testimonio and argued that the plaintiffs in Cause No. 203 had abandoned their grant at an early date and the 1815 proceedings amounted to a denouncement and regrant of the premises. The government supported the contention that the 1815 proceedings were a denouncement and a regrant but argued that since Governor Maynez had granted only a house lot and farm tract to each settler, the proceedings evidenced by the Act of Possession dated March 1, 1818 were void for want of authority. And, in view of the fact that no allotments had been made, the claim based on the 1815 proceedings were incomplete.

The court handed down a single opinion[11] cover­ing all four of the cases on April 16, 1900. The court in this opinion rejected the San Joaquin del Nacimiento Grant on the grounds that the Spanish Government had denounced that grant in 1815. The Court pointed out that no citizen of Spain was permitted to hold title to agricultural lands which they did not occupy and utilize. Even if the grantees had complied with all the conditions of the grant and had a right to sell the lands, they nevertheless would be subject to denouncement and regrant if they left the land unoccupied. Stated in another way, “fee simple estates were never recognized in Spain.” Continuing, the Court held that the action by the Spanish officials in 1815 was an adjudication which fixed the status of the land as well as the rights of the parties. Even if Indian hostilities would have been a valid excuse for the grantees’ failure to occupy the premises, the Court had no right to reverse or correct the error, if any, made by the Spanish officials in denouncing the San Joaquin del Nacimiento Grant. This brought the Court to the question of the validity of the San Pablo y Nacimiento Grant. On this issue the Court found that it was clear that Maynez’ decree of March 31, 1815, granted each of the applicants only a house lot and a tract of agricultural land not to exceed the quantity which he personally could cultivate. Since no individual allotments had been made, title to the entire tract vested in the United States upon the change in sovereignty. In view of the fact that there was no evidence before the court which would authorize it to pronounce a decision confirming either of the grants, in whole or in part, it had no alternative but to reject all four of the claims.

The rejection of these claims relieved the apprehensions of the 765 persons who had settled on the grant under the public land laws prior to the filing of the claim in 1872.


[1] H. R. Exec. Doc. No. 128, 42d Cong., 3d Sess., 26‑27 (1873).

[2] Ibid., 23.

[3] The San Joaquin del Nacimiento Grant, No. 66 (Mss., Records of the S.G.N.M.).

[4] H. R. Exec. Doc. No. 128, 42d Cone., 3d Sess., 23 (1873).

[5] The San Joaquin del Nacimiento Grant No. (36 (Records of the S.G.N.M.).

[6] S. Exec. Doc. No. 13, 50th Cong., 1st Sess., 1‑32 (1887).

[7] Court of Private Land Claims Act, Chap. 539, 26 Stat. 854 (1891).

[8] Longwill v. United States, No. 203 (Mss., Records of the Ct. Pvt. L. Cl.). A second suit was brought on the following day by Smith P. Simpson to secure the recognition of the interest claimed through inheritance from one of the original grantees. Simpson v. United States, No. 213 (Mss., Records of the Ct. Pvt. L. Cl.). These two cases were consolidated and tried under Cause No. 203.

[9] García v. United States, No. 144 (Mss., Records of the Ct. Pvt. L. Cl.).

[10] Ibid. A second suit based on this testimonio was filed on March 3, 1893 by Feliciano Montoya. Montoya v. United States, No. 252 (Mss., Records of the Ct. Pvt. L. Cl.). These two cases were consolidated and tried under Cause No. 144.

[11] 4 Journal 142 (Mss., Records of the Ct. Pvt. L. Cl.).