by J. J. Bowden
Leon Herreros, a resident of the Presidio of Tubac, petitioned the Governor of Sonora and Sinaloa, Antonio Codero, on May 29, 1821 asking for a grant covering two sitios of land at the place known as Sonoita, which was the site of an old abandoned Indian settlement and was located about eight leagues east from Tubac. Herreros stated that he needed the land as a pasturage for his cattle, notwithstanding the danger they would be exposed to since it was near the “customary hiding places” of the Apaches. His petition closed with a statement assuring the governor that he had the means to pay the just price for which the tract might be valued and sufficient cattle and horses to stock it. Codero referred the petition to the Commander of the Presidio of Tubac, Ignacio Elias Gonzales, who was also a sub delegate, directing him to cause the tract to be surveyed, appraised and the proposed sale thereof to be advertised for thirty days. On June 22, 1821 Elias gave public notice of his intention to survey the requested tract. Four days later, he appointed chainmen and tally keepers and went to the premises where the survey was commenced at a point “on the very walls of Sonoita,” which was designated as the center point of the grant. A line was run thence northeast 63 cordeles of 50 varas each to a point a little beyond a spring at the foot of some low hills near a chain of mountains which runs to the east. A monument consisting of a heap of stones as erected at this point. Elias was about to return to the center point to run lines in the other three cardinal directions when Herreros requested him to survey the tract as a long narrow strip of land in the canyon located 25 cordeles on each side of the center line and that the line continue down the canyon from the center point a distance sufficient to embrace two sitios. Elias agreed and proceeded to locate the northeast corner of the tract. A line was run southeast from the heap of stones 25 cordeles up the valley to a point on the left side of a chain of hills and at the foot of one of them whose slope was covered with oak trees. A monument of stone was placed on top of this hill as a landmark. Returning to the heap of stones, a line was run in the opposite direction 25 cordeles to a point on a high white hill that formed a part of the Santa Rita Mountains and which was covered with grass and this distinguished it from the others near it. A monument of stones was constructed on its summit to serve as a corner. Returning to the center point a line was measured east 25 cordeles ending on a high red mountain located on the side of a somewhat high hill covered with many oaks. Another 25 cordeles line was run west from center point and ended at a little hill called Eazadero on the main road to Tubac. After returning once again to the center point, Elias suspended further surveying for the day due to approaching darkness. Early the next morning, the line was run down the canyon a distance of 312 cordeles to a point in a bend of the canyon which faces west at the place called the first ford and which is also near the main road at the place where the mesa drops off. A monument of stone was erected at this point to serve as a lead. Lines were run at right angles from this monument: 25 cordeles to form the northwestern and southwestern corners of the tract. The northwestern corner was a stone monument erected on the other side of a ledge that ends in high rolling boulders on a hill that forms a little valley. The southwestern corner was a cross situated at two hills known as the Twins which were located about two leagues from the Calabaza Ranch. Herreros pointed out that since the canyon southwest of the center point was so rough and contained many turns and the line had been run down its valley, some allowance should be made to compensate for the fact that the line was not straight. Elias found the request to be reasonable and estimated that the southwestern portion of the line was only 287 cordeles in length. Therefore, the tract was estimated to contain one and three quarters sitios of land. Since Herreros was satisfied with the survey Elias delivered possession of the land to him. Next, Elias proceeded to have the land appraised by Manuel Leon arid Jose Maria Sotelo, who fixed its value at 105 pesos. The testimony of three witnesses was taken by Elias to the effect that Herreros had the property and the means to occupy and stock the tract. Public notice of the proposed sale was given for thirty consecutive days commencing on June 29 and ending on July 28, 1821. Since no bid was received over the appraised value, Elias gave Herreros an expediente of the proceedings and directed him to present it to the governor for his further action. Herreros delivered the papers to Acting Governor Ignacio Bustamante, who referred the proceeding to Promoter Fiscal Francisco Pores for examination. Pores, on November 17, 1821, found the proceedings to be in order, the land had been appraised at the rate of 60 pesos per sitio since it contained water and recommended that the land be sold at three public auctions, and that the sale be reported to the Superior Junta de Hacienda for final approval following the sale and payment of the purchase price and costs. The auction was held by the Board of Sales on the 8th, 9th and 10th of November, 1821, and at the conclusion of the third auction the land was struck off to Herreros for 105 pesos plus costs totaling 11 pesos 2 reales 5 grains, which was paid into the National Treasury on the following day. Bustamante approved the sale and ordered the expediente of the sale to be forwarded to the Junta for its approbation so that, when approved, a title deed might be issued to Herreros. No further action was taken on the grant during the Spanish regime.
The next action taken on the grant was had on May 15, 1825, when a final title was issued to Herreros by the Commissary General of the Treasury, Juan Miguel Riesgo, in pursuance of the previous proceedings and professing to act under the authority of Article 81 of the Royal Ordinance of Intendentes[1] dated December 4, 1786.
Herreros sold the grant to Joaquin V. Elias for a consideration of 200 fanegas of wheat on December 26, 1831, Elias, in turn, sold the property to Antonio Crespo for $1950 on August 21, 1856. Later, Crespo’s widow, for herself and on behalf of her three minor children, conveyed the property to Matias Alsua, who petitioned[2] Surveyor General John Wasson on December 30, 1879 seeking the confirmation of the grant. Special Investigator Rufus C. Hopkins had investigated the grant papers in Mexico and reported:
… Commissary General Riesgo issued a number of grants on proceedings which had gone no further under the Spanish Government than the approval of the Provincial Junta de Hacienda, having been at that point suspended in 1821 on account of the revolution. In these cases no conadors or copies of grants are contained in the expediente but notes of registry are found in book No. 2 of the Comisario General … . The expediente containing 40 pages is found in its proper place in the archives; that it is written on the corresponding stamped paper; that the proceedings of survey, valuation, publication and sale are all regular; that the signatures to the title papers are genuine; and. that there is nothing to cast suspicion on the bona fade character of the original title papers.
While noting that the grant was somewhat different than those issued by the Treasurer General under the Act of May 20, 1825,[3] in that it did not have a clause excusing the grantee from the conditions of occupancy in cases where the hostile Indians force the abandonment of the land, Wasson felt that it could be presumed that such rule also applied to this grant. This conclusion was necessary since the evidence showed that it had not been occupied between 1833 and 1853. Having summarily disposed of the most obvious objection to the approval of the grant, Wasson proceeded to discuss Alsua’s deraignment of title. He noted that there was no evidence that the deed conveying the grant to him had in fact been executed by all of Crespo’s children. He overcame this objection by stating that it was fair to presume that Alsua, “who was widely known as a man of careful business methods as well as intelligence and position in the City of Guaymas was cautious enough to make sure that all the heirs did join in the deed as is now claimed by him … .” Therefore, he recommended the confirmation of the grant to Alsua to the extent of 1‑3/4 square leagues (7,591.61 acres) and no more.[4] Notwithstanding this limitation, a survey of the grant was made by George J. Roskruge in June, 1889, which, based on Elias’ field notes, showed the grant as covering an area of 7,147.69 acres or approximately four leagues.
Meanwhile, a number of homesteaders had settled within the limits of the grant and conveyed rights of way to the New Mexico & Arizona Railroad Company for the construction of a railroad across the lands they claimed. Santiago Ainsa, as Administrator of the Estate of Frank Ely, deceased, who had acquired the grant from Alsua, filed suit in the Arizona District Court on June 1, 1892 to quiet title to the land covered by the grant. The Court held it had no jurisdiction over the subject matter of the suit and dismissed the complaint. Ainsa appealed to the Supreme Court of Arizona, which by decision[5] dated January 29, 1894, held that a territorial court could not recognize the rights of the claimant of an unconfirmed Mexican grant as against a person claiming under the preemption and homestead laws since the recognition of such grants was a political question within the province of the executive department. Ainsa further appealed to the United States Supreme Court, which reversed[6] the decision on the ground that a grant which was complete and perfect before the cession of the lands to the United States could be asserted against any adverse private claimant in the ordinary local courts without first having been confirmed by any agency of the government. It also held that complete and perfect grants were protected by treaty and it was not necessary for their owners to present them to the Court of Private Land Claims although the act creating that court gave them such a right.
The United States filed suit[7] in the Court of Private Land claims under Section 8 of the Act of March 3, 1891 against Santiago Ainsa, administrator of the estate of Frank Ely, Deceased, alleging that he claimed to be the owner of the grant; that he had not voluntarily come into the court to seek a consideration of his title; and that his title was open to question and, in fact, was invalid and void. In an amended answer Ainsa set forth the nature of the claim and requested it be confirmed. When the case came up for trial, the government contended that the grant was invalid since the officers who assumed to make the grant and to execute the title papers had no authority to so act. It pointed out that Mexico declared its independence from Spain on March 1, 1821, Spain capitulated on September 27, 1821 and the sale was not made to Herreros until December 10, 1821. Since all Spanish authority to dispose of land ceased at the very latest on September 27, 1821 and the first Mexican law relating to the disposition of the public domain was not enacted until January 4, 1823, there was no law in force[8] authorizing the sale of the premises to Herreros. Ainsa responded by asserting that proceedings to acquire title had been initiated before September 27, 1821 and that the act of October 5, 1821,[9] which confirmed the authority of all incumbent Spanish officials engaged in the administration of justice and other public functions, authorized the governor to continue to act just as though there had been no change in sovereignty. The government argued that this act authorized the incumbent Spanish officials to continue to exercise authority to maintain peace and protect lives and property but by no stretch of the imagination could it be presumed to authorize the granting of the public domain! Next, Ainsa argued that if the 1821 proceedings were not sufficient to convey the premises to Herreros, the 1825 title deed executed by the Commissary General amounted to a regranting of the land to Herreros. The government attacked this contention by showing that the office of the Commissary General was created by the Mexican Government on September 21, 1824 and provided that he was to be the superior chief of all branches of the Exchequer and, as such, he had no authority to make a valid concession of the public domain. It further noted that he did not purport to act under Mexican Law but based his authority on the Royal Ordinance of Intendentes[10] dated December 4, 1786. Ainsa asserted that it should be assumed that he acted within his authority. The government countered by arguing that the doctrine of the Cambuston case[11] prevented the court from indulging in such a course of reasoning. By majority decision[12] dated March 30, 1894, the Court rejected the grant on the ground that the 1821 and 1825 proceedings were invalid for want at authority. Justices Wilbur F. Stone and Thomas C. Fuller dissented. Ainsa appealed to the United States Supreme Court which, by decision[13] dated May 31, 1898, reversed the decree of the Court of Private Land Claims. The Supreme Court held that it was true that the regularity of the proceedings and the power of the officer assuming to make a Mexican grant must be established in order to sustain it, and such authority cannot be assumed. However, where the statutes and ordinances defining the duties and powers of such officer are indefinite[14] and it is shown that he exercised the same power in other cases without being questioned by the government and grants purporting to have been made by him were not challenged, such facts support a construction that the statutes and ordinances conferred such authority. The court also found that the grant was one of quantity and, therefore, remanded the case to the Court of Private Land Claims with directions to examine and decide whether there were sufficient facts to enable it to determine the true boundaries of the 1‑3/4 sitios covered by the grant.
In order to assist the Court of Private Land Claims in locating “true boundaries of the grant” and also to distinguish the Ainsa case[15] stating:
It might be said that to consider the tract granted as one not extending to the limits of the outboundaries of the survey is to hold that the tract granted was not located, and therefore, within the terms of the Gadsden treaty, not to be recognized by this government, as suggested in Ainsa v. U.S. … It is also undoubtedly true, as disclosed in that case, that, where there is a mere grant of a certain number of acres within specified outboundaries, there may be such indefiniteness as to prevent a court from declaring the true location of the granted land. And yet it is also true that there may be disclosed by the survey or other proceedings that which will enable a court of equity to determine with reasonable certainty what lands were intended to be granted, and the title to which should be established. It must be remembered, in this connection, that, by Section 7 of the Court of Private Land Claims, it is provided “that all proceedings subsequent to the filing of said petition shall be conducted as near as may be according to the practice of the courts of equity of the United States.” Therefore, in an investigation of this kind, that court is not limited to the dry, technical rules of a court of law, but may inquire and establish that which equitably was the land granted by the government of Mexico … . It will be unnecessarily limiting its power to hold that it can only act when the grant to the full outboundaries of the survey is valid, and is powerless when a tract within those outboundaries was granted. Many things may exist by which the real tract granted can be established. In the case before us, if it be possible to locate the central point from which, according to the report, the survey was made (and we judge from the testimony that it is possible), the actual grant can be established by reducing each measurement therefrom to such an extent as to make the area that of the tract purchased and paid for. If the outboundaries disclose a square or any rectangular figure, the excess of area suggests simply a carelessness of measurement, and can be corrected by a proportionate reduction in each direction. In other cases, the location of the water way, or the configuration of the ground, may be such as to enable a court of equity, by its commissioner or master, to determine exactly what was intended to pass under the grant. We do not mean to anticipate all the questions that may arise. We simply hold that the mere fact that the grant is narrower than the limits of the outboundaries does not prevent the Court of Private Land Claims from determining, through the aid of a commissioner, surveyor or master, exactly what equitably did pass under the grant.
Upon presentation of the mandate to the Court of Private Land Claims, a difference of opinion arose between the parties as to whether the decree of confirmation should be entered for the full 1‑3/4 leagues centered around San Jose de Sonoita or for that quantity less the lands previously disposed of by the United States. The government insisted that the Act of March 3, 1891 required such an exception urging that Ainsa in answering had prayed for a confirmation, and that in affording him the relief sought, it should be under the conditions and subject to the limitations imposed by the act. Ainsa on the other hand insisted that since he was brought into court involuntarily by the bill of the government, the proper form of decree was one simply declaring his rights to the quantity named free from any claim of the United States or any of its grantees or patentees.
The Court of Private Land Claims was at first inclined to sustain Ainsa’s position and on April 20, 1900 entered a decree[16] in his favor. Thereupon, a motion was filed by the government to set aside the decree and substitute a decree following the government’s position. This motion was held under advisement by the court until May 16, 1902 when the motion of the government was sustained and a decree[17] was finally entered confirming to Ainsa one and three fourths sitios centering around San Jose de Sonoita, subject to the limitations and exceptions imposed by the act. The grant was surveyed by Philip Contzen in January 1903, for 5,123.42 acres and patented on October 29, 1906.[18]
[1] Reynolds, Spanish and Mexican Land Laws 60 (1893).
[2] The San Jose de Sonoita Grant, No. 8 (Mss. Records of the S.G.A.).
[3] Ibid., 129‑131.
[4] H. R. Report No. 172, 47th Cong., 1st Sess., 3 (1884).
[5] Ainsa v. Arizona & New Mexico Railroad Company, 3 Ariz. 236, 36 Pac. 213 (1894).
[6] Ainsa v. New Mexico & Arizona Railroad Company, 175 U.S. 76 (1899).
[7] United States v. Ainsa, No. 40 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[8] United States v. Vallejo, 1 Black (66 U.S.) 541 (1862).
[9] Reynolds, Spanish and Mexican Land Laws 95 (1895).
[10] Ibid., 60.
[11] United States v. Cambuston, 20 How. (61 U.3.) 59 (1858).
[12] 1 Journal 71 (Mss., Records of the Ct. Pvt. L. Cl.).
[13] Ainsa v. United States, 17 U.S. 220 (1898).
[14] The Act of September 21, 1824 creating the office of commissary General provides: “Art. 4. He shall collect and disburse, under the laws and orders of the government, the proceeds from the revenues and the contingents of the states. Art. 5. The revenue on powder, salt deposits, the proceeds belonging to the federation, national properties and vacant lands, contingents, customs, tolls and all the branches pertaining to the public credit, shall be administered directly by the commissary… .”
[15] Ainsa v. United States, 161 U. S. 208 (1895).
[16] 1 Journal 175 (Mss., Records of the Ct. Pvt. L. Cl., Ariz. Dist.).
[17] 1 Journal 181‑182 (Mss., Records of the Ct. Pvt. L. Cl.).
[18] B.L.M. to J.J.B. August 8, 1968.
[19] Richardson v. Ainsa, 11 Ariz. 103, 95 Pac. 103 (1908). This same result was reached by the Acting Secretary of Interior in Ely’s Administration v. Magee, 34 L.D. 506 (1906).
San Jose de Sonoita Grant; J.J. Bowden's research on land grants in the southwest.