by J. J. Bowden
Santiago Duran y Chaves, a resident of the Town of Atrisco, appeared before Governor Pedro Fermin de Mendinueta and requested a grant covering the tract of land surrounding the San Mateo Spring. As justification for his supplication, he advised Mendinueta that he owned eighty mares and forty mules and also managed approximately a thousand sheep and some large stock for his mother; and, while he already had a small piece of farm land, the commons at Atrisco were so crowded that his animals frequently broke loose and damaged his neighbors’ fields. Therefore, in order to obviate the disputes which arose as a result of such trespasses, he had decided to register the spring and move the herds out on the prairie where they could not injure anyone. He also pointed out that, while there were a few Apaches living near the spring, he only wanted the surplus land. In closing, he noted that he had not described any particular boundaries for the requested grant and agreed that he would be satisfied with those designated by the alcalde when possession of the land was given to him. Mendinueta, on February 5, 1768, granted Duran “the tract of land of pastures and waters,” which he had requested but restricted the concession to one square league and directed that it be located commencing at Bartolome Fernandez’s boundary that “looks toward San Mateo Spring.” Duran was warned that, if the grant could not be located as a compact tract of four leagues in circumference “without injuring the Apaches,” he was not to run the Indians off but was to treat them with love and Christian charity. The grant closed with instructions addressed to the alcalde of the Queres Nation, Bartolome Fernandez, instructing him to notify the adjoining landowners and Apaches of the grant, and, if he encountered no objections, to place Duran in royal possession of the premises. Pursuant to this commission, Fernandez went to the grant on February 12, 1768,[1] and attempted to survey the league. However, due to the fact that from north to south the valley was narrow and the surrounding mesas were very rough, he abandoned the survey and merely designated the mesas surrounding the valley in which the San Mateo Spring was located as the boundaries of the grant. He estimated that the valley contained a little less than the four leagues mentioned by the governor. Next, he summoned the seven lodges of Apaches who lived on the mesa at the southeast corner of the grant and advised them of the grant. They told Fernandez that they had no objection to the grant, but, to the contrary, welcomed Duran’s settling at the spring for it would tend to protect them from the Utes, who had been harassing them. After obtaining the Apaches’ consent to the grant, Fernandez delivered possession of all the valley lands to Duran.[2]
Duran and his descendants pastured their livestock on the grant whenever the Navajo Indians would permit them to conduct such operations with a reasonable degree of safety. In June, 1849, one of Duran’s descendants filed the testimonio of the grant in the Kearny land registry.[3] However, for some unexplained reason the Duran heirs took no further steps to perfect their claim.
In 1880 Ramon A. Baca, whose ancestors had been squatting upon the grant since his grandfather had driven the Navajos off the land in 1801, commenced efforts to obtain a clear title to the premises. First he obtained a translated copy of the grant papers from Book B” of the Kearny land registry in the Surveyor General’s office and purchased the interests of all six of Duran’s living descendants. Then, on July 3, 1882, he petitioned[4] Henry M. Atkinson seeking the confirmation of the grant “to him and other persons entitled thereto according to their respective rights and interest.” In support of his claim, he filed the testimonio of the grant, the translation, and a plat indicating that the grant covered about 17,000 acres, but, for some mysterious reason, he did not file his deeds from Duran’s heirs. In connection with his examination of the claim, Atkinson took an unusually large amount of oral testimony. Five witnesses were examined. The hearing was also somewhat unusual in that United States Attorney S. M. Barnes was present and cross-examined the witnesses. Jose Benito Baca, a cousin of Ramon A. Baca’s father, testified that Domingo Baca had driven the Navajos off the land in 1801 and that he and his son, Jose Antonio Baca, had occupied it continuously until the latter’s death in 1862. Thereafter, Ramon A. Baca had resided upon and used the grant. Justo Saavedra, on cross-examination, stated that there were approximately 400 persons living on the grant and. that most of them were descendants of the original grantee. Most of these persons lived in the Town, of San Mateo. Ramon A. Baca testified that he had always known that there was a Spanish grant covering the land; and, upon learning that the Duran heirs claimed an interest in it, he investigated and found the grant papers in the Surveyor General’s office. On cross-examination, he was asked if it were not true that his father claimed under squatter’s rights and not under a title from Spain. In a somewhat evasive answer he stated that he had understood that there was a Spanish grant but did not know to whom it was made, but that he also claimed the land by conveyance from the heirs of Duran for at least three years. On April 4, 1883 Atkinson rendered an opinion[5] in which he stated that he had compared Mendinueta’s and Fernandez’s signatures on the testimonio with their signatures on a large number of other documents in the archives and had come to the conclusion that the grant papers were genuine. Notwithstanding his concession that the testimonio was valid, Atkinson had a serious question as to the extent of the grant. He found that the Act of Possession purported to give Duran a tract four times the size of the one that had been granted. Therefore, after noting that an alcalde had no authority to enlarge a grant, he held that such action was void insofar as the excess acreage was concerned. In closing, he recommended the confirmation of the claim unto the “heirs, assigns and their legal representatives of Santiago Duran y Chaves to the extent of one square league embracing the spring commonly called ‘San Mateo Spring' to be measured from the boundary which Don Bartolome Fernandez had marked in the direction looking “from his land towards the San Mateo Spring.…” Recognizing the possibility that it might be impossible to locate such beginning point, Atkinson held:
Otherwise, the extent of a league square of land will be selected within the valley referred to and embraced in the boundary calls given in the, Act of Possession, which may be selected in a square or such other form as will be most consistent with the boundary calls stated in the decree and Act of Possession, but is restricted in extent to the area of one square league as specified in the granting decree.
He also recommended that in view of the fact that minerals were reserved by the Spanish government at the date of the grant they should also be reserved by the United States.
Deputy Surveyor John Shaw was awarded a contract to make a preliminary survey of the grant. He went to the town of San Mateo where he interviewed a number of witnesses concerning the location of San Mateo Spring. He was advised that the spring was located in the NW/4 NE/4 of Section 9, Township 12 North, Range 8 West, N.M.P.M. Realizing that it would be impossible for a one square league tract to include the San Mateo Spring and also adjoin the southern boundary of the Bartolome Fernandez Grant, since they were six miles apart, Shaw abandoned the call for adjoinder to the Bartolome Fernandez Grant and surveyed the tract as roughly a diamond shaped tract with the southern point located at the spring. The survey was made in May, 1883 and covered 3,547.46 acres.[6]
The grant was still pending before Congress when Surveyor General George W. Julian took office on July 22, 1885. Therefore, it was one of the thirty-five claims reexamined by Julian pursuant to the instructions[7] he received from the Commissioner of the General Land Office, William A. J. Sparks, dated December 11, 1885. In a Supplemental Opinion[8] dated March 29, 1889, Julian concurred with Atkinson’s finding that the grant papers were genuine but chided him for approving the claim to the extent of one league to the heirs and assigns of the legal representatives of Santiago Duran y Chaves. Julian pointed out that there was no evidence that the conditions of settlement required by Spanish law had been performed or that Baca was a legal representative of the original grantee. He noted that in the early days it was not uncommon for parties to settle on the public domain without any right and argued that the evidence tended to show that this is exactly what happened in 1801 when the claimant’s grandfather drove the Indians away and commenced using the premises. Continuing, Julian asserted that he suspected “that the claim in this case was an invention and an afterthought, suggested by the discovery of the grant, and that, but for this discovery, the thought of such a title as is now set up would never have occurred.” Julian was quick to point out that his contention was supported by Baca’s own testimony wherein he stated that he had never heard of any claim of the heirs of the grantee to the land as a grant until the year 1875. He asserted that the “true” San Mateo Spring was located in the NW/4 of Section 31, Township 13 North, Range 7 West, N.M.P.M., or one mile, 65 chains, from the center of the Town of San Mateo. Thus, by using this spring as the southern boundary and the Bartolome Fernandez Grant as the north boundary, a one-league tract would appropriate the “surplus lands” lying between the two natural objects. As a result of his investigation, Julian, nearly six years after the date of Atkinson’s decision and without allowing Baca an opportunity to answer his objections, recommended that the claim be rejected by Congress.[9]
The creation of the Court of Private Land Claims in 1891, without Congress’ having acted upon the claim, permitted Baca to institute[10] an action in that tribunal. The suit was filed on February 10, 1893 and sought the confirmation of his claim to the approximately four leagues of land described in the, Act of Possession. The government filed a general answer. The case came up for trial on September 26, 1894 at which time Baca introduced the grant papers, the six deeds from Duran’s heirs, and oral testimony establishing the descent of the grant from Duran to his great grandchildren. Testimony was also given which tended to prove that Duran’s grandson, Fernandez Aragon, had built cabins on the grant for his shepherds and grazed a large number of sheep on the premises as late as the 1860s, and, thus, undoubtedly had complied with the conditions of occupancy required by the Spanish law. To explain the rights of the numerous other residents on the grant, Baca showed that in 1874 or 1875, or about eight years before the filing of the claim before the Surveyor General, he and about fifty-six others had petitioned the Probate Judge and obtained[11] a three hundred twenty acre townsite for the founding of the Town of San Mateo. Twenty of such persons had also acquired individual tracts under the home‑stead laws.[12] The government, in turn, contended that the grant was merely a license for pasture purposes, and, under the doctrine of the Zia, Santa Ana, and Jemez case,[13] title to the land vested in the United States upon the change of sovereignty. In the alternative, the government contended that, if the grant was one which the United States was obligated to recognize, it was an express grant of quantity and the alcalde had no authority to enlarge the concession.
By Opinion[14] dated February 6, 1895, the Court held the grant to be on the same footing as its companion case[15] involving the Felipe Tafoya Grant, which had been confirmed as being a grant in fee simple. The court also found that the evidence showed that the grantee had complied with the conditions of occupancy and that “possession has been continuous in him and his successors; while this evidence is not positive, yet is as nearly so as at this date (over a century and a quarter having elapsed since the grant was made) it is possible to produce.” Therefore, the court confirmed the grant unto the heirs and legal representatives of Santiago Duran y Chaves for one square league (four leagues in circumference) of land on the tract commonly called the “San Mateo Spring” to be commenced at any point thereon which Baca may select and measuring so as not to interfere with the rights of any other person. Baca appealed the decision to the United States on the ground that the court should have confirmed the grant for all of the land described in the Act of Possession. However, Baca failed to file a printed transcript of the record, and the Supreme Court, pursuant to Rule 10, dismissed the appeal on November 5, 1897.[16]
Once the decision became final, a contract was awarded to Deputy Surveyor George H. Pradt to survey the grant. He surveyed the grant in two tracts for a total of 4,340.276 acres. The first tract covered 4,264.162 acres and was commenced at San Mateo Spring located in Section 9. The second tract covered 76.114 acres and contained a second small spring which was located in Section 19, Township 13 North, Range 7 West, N.M.P.M. The survey was made between the sixty and eleventh of July, 1899. The government protested the survey on the ground that it was implied in the decision that the grant should have been made as a single compact tract.
By decision dated December 11, 1900,[17] the court approved the survey, stating that, while it may have been possible to locate the entire league as a single tract, the second tract was within the boundaries of the confines of the lands described in the Act of Possession, and the claimant had the right to select he best land within that valley. It also noted that the land had no running water, and the claimant was dependent upon the spring for his livelihood. Therefore, it saw no harm in allowing him to select his lands in two tracts. The grant was patented on February 19, 1907.[18]
[1] The original title paper states that he went to the grant on 2 February (dos). The date obviously is a clerical error and should have been 12 (doce).
[2] The San Mateo Grant, No. 134 (Mss., Records of the S.G.N.M.).
[3] B Record of Land Titles 120‑123 (Mss., Records of the S.G.N.M.). Book “B” was lost in 1880 and has never been found.
[4] The San Mateo Grant, No. 134 (Mss., Records of the S.G.N.M.).
[5] Ibid.
[6] Ibid.
[7] S. Exec. Doc. No. 113, 49th Cong., 2d Sess., 2 (1887).
[8] The San Mateo Grant, No. 134 (Mss., Records of the S.G.N.M.).
[9] This ex parte action seems harsh, especially in view of the instructions dated August 21, 1854, to the Surveyor General’s office stating:
Where the claim may be presented by a party as “present claimant” in right of another, you must be satisfied that the deraignment of title is complete; otherwise, the entry and your decision should be in favor of the “legal representatives” of the original grantee.
Atkinson’s decision complied with those instructions; and, therefore, Baca’s failure to file his deeds should not have been used as a ground for the rejection of the claim. Likewise, Julian’s objections to the Shaw survey, even if valid (and they apparently were not), would not be ground for rejection of a valid claim protected by the Treaty of Guadalupe Hidalgo.
[10] Baca v. United States, No. 75 (Mss., Records of the Ct. Pvt. L. Cl.).
[11] Townsite Act, Chap. 17, 5 Stat. 657 (1844)
[12] Homestead Act, Chap. 75, 12 Stat. 392 (1862).
[13] Pueblos of Zia, Santa Ana and Jemez v. United States, 168 U.S. 198 (1897).
[14] 2 Journal 285 (Mss., Records of the Ct. Pvt. L. Cl.).
[15] Baca v. United States, No. 67 (Mss. , Records of the Ct. Pvt. L. Cl.).
[16] Baca v. United States, 18 S. Ct. 939, 42 L. Ed. 1207 (1897) (mem.).
[17] 4 Journal 226 (Mss., Records of the Ct. Pvt. L. Cl.).
[18] The San Mateo Grant, No. 134 (Mss., Records of the S.G.N.M.).
San Mateo Spring Grant; J.J. Bowden's research on land grants in the southwest